Free Motion in Limine - District Court of Arizona - Arizona

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Mary H. Beard Admitted Pro Hac Vice FEDERAL EXPRESS CORPORATION 3620 Hacks Cross Road, Building B-3rd Floor Memphis, TN 38125 Telephone: (901) 434-8061 Facsimile: (901) 434-9279 Email: [email protected] FENNEMORE CRAIG, P.C. Lori A. Higuera (No. 017273) Alec R. Hillbo (No. 020185) 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendant Federal Express Corporation UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA SEAN L. HARGROW, Plaintiff, v. FEDERAL EXPRESS CORPORATION, a Delaware corporation; JOHN and JANE DOES IX; BLACK CORPORATION I-X; WHITE LIMITED LIABILITY COMPANIES I-X, Defendants. DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING INTERNAL POST-COMPLAINT INVESTIGATION BY DEFENDANT No. 03-0642 PHX DGC

22 23 24 25 26 27 28 and Plaintiff's witnesses of this evidence during trial. Defendant Federal Express Corporation d/b/a/ FedEx Express ("FedEx"), by and through counsel, hereby submits its Motion in Limine to exclude evidence regarding internal post-complaint investigation by Defendant. FedEx respectfully requests that the Court issue an order in limine precluding any mention by Plaintiff, Plaintiff's counsel,

Case 2:03-cv-00642-DGC

Document 119

Filed 11/02/2006

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Defendant anticipates that Plaintiff will attempt to elicit testimony directed at the Guaranteed Fair Treatment Procedure/Equal Employment Opportunity Complaint Process ("GFTP/EEO") that FedEx conducts upon an employee complaint. (Plaintiff's Exhibit List 6-8, 12, 14, 16-23, 25-27, 137, 29-31. Issues such as the sufficiency of the procedures in place at FedEx and how they were followed as well as the decisions made as to other employees during such process are not relevant to Plaintiff's claim of whether retaliation took place before Plaintiffs filed a GFTP and an Internal EEO Complaint. On the contrary, introducing those issues at the trial has the danger of focusing the trier of fact's attention on events that occurred after the alleged discrimination, rather than on the events that form the basis of the alleged discrimination. "Courts have held, quite sensibly, that evidence of post-event occurrences are rarely relevant to the issue of whether the defendant actually engaged in discrimination." Swinton v. Potomac Corp., 270 F.3d 794, 811 (9th Cir. 2001). Courts have also made this distinction in other contexts, excluding the after-occurring events. See Gonzales v. San Jose Police Dept., 901 F.2d 758, 762 (9th Cir. 1990) (excluding evidence of postcomplaint hiring or promotion practices and citing cases that "generally cast substantial doubt on the relevance of post-complaint conduct when the issue is whether an employer's practices should be enjoined."). The issue for the fact-finder in this case is whether retaliatory conduct occurred, not how FedEx reacted internally after Plaintiff made his accusations of race discrimination. Such evidence is not relevant for the same reasons that remedial efforts of a defendant are not relevant, see Fed. R. Evid. §§ 401, 407. Moreover, Plaintiff did not file a GFT complaint or internal EEO before his

Case 2:03-cv-00642-DGC

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discharge. Additionally, in the order on the Motion for Summary Judgment, the Court stated that there was no causal link between the internal EEO and any protected activity. As such, any evidence, argument or comment relating to the internal investigations of FedEx occurring after Plaintiff's GFTP and Internal EEO complaints to Federal Express should be excluded from this trial. Even so, the testimony and evidence described above should be excluded because the risk of misleading the jury, confusing the issues, and unduly prejudicing Defendant is much greater than any possible probative value of the testimony. DATED this 2nd day of November, 2006. Respectfully submitted,

By: /s/ Mary H. Beard Mary H. Beard FEDERAL EXPRESS CORPORATION and Lori A. Higuera Alec R. Hillbo FENNEMORE CRAIG, P.C. Attorneys for Defendant Federal Express Corporation CERTIFICATE OF SERVICE I hereby certify that on February 16, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mishka L. Marshall Marshall Law Group, P.C. 777 East Thomas Road, Suite 210 Phoenix, AZ 85014 /s/ Mary H. Beard Mary H. Beard
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