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
COMPARATORS WHO ARE NOT SIMILARLY SITUATED

No. 03-0642 PHX DGC

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Case 2:03-cv-00642-DGC Document 117 Filed 11/02/2006 Page 1 of 3 Defendant Federal Express Corporation d/b/a/ FedEx Express ("FedEx"), by and through counsel, hereby submits its Motion in Limine to exclude evidence regarding comparators who are not similarly situated. FedEx respectfully requests that the Court issue an order in limine precluding any mention by Plaintiff, Plaintiff's counsel, and Plaintiff's witnesses of this evidence during trial.

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To establish that Plaintiff was treated differently than a similarly situated individual, Plaintiff must show that the other employee had the same supervisor, was subject to the same standards, and "'engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.'"

5 6 7 8 9 10 and judge whether the employer's actions were wise or well-considered. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
further listed personnel documents regarding Ron Bennett (Plaintiff's Exhibit List No. 104-107 and Witness List No. 4), Maria Bux (Plaintiff's Exhibit List No. 91-94, 96), and Keith Bergen (Plaintiff's Exhibit List No. 52-53). Plaintiff also refers to other employees that have received DUIs and listed documents regarding DUI charges (Plaintiff's Exhibit List, Nos. 82-90, 95). The circumstances under which these employees were issued discipline are totally irrelevant under Case 2:03-cv-00642-DGC - 2 Document 117 Filed 11/02/2006 Page 2 of 3 Plaintiff cannot meet this burden with respect to Robert Hollenbeck as well as elicited information during discovery regarding other employees who sought accommodations. Defendant anticipates that Plaintiff will attempt to show that, unlike him, Mr. Hollenbeck and other employees requested an accommodation and management granted it. Plaintiff has also listed performance reminders and warning letters for refueling errors issued to various employees, including Diane LaMonica (See Plaintiff's Exhibit List, Nos. 28-48). Plaintiff has Hollins v. Atlantic Co., Inc., 188 F.3d 652, 659 (6th Cir. 1999) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)); see also Vasquez vs. County of Los Angeles, 349 F.3d 634, 641 n.17 (2003) (relying on Hollins). This Court has recognized that the role of the Court in

a discrimination case is not to question the wisdom of the employer's internal policies Green v.

Maricopa, 265 F. Supp. 2d 1110, 1128 (D. Ariz. 2003). Rather, the focus is whether or not the employer had an honest belief in the reasons for its actions. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (citations omitted); Green, 265 F. Supp. 2d at 1128.

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Fed. R. Evid. 401 as Plaintiff cannot present any evidence whatsoever that Ms. Montgomery, the decisionmaker as to his discharge, had any knowledge or involvement in these decisions. Moreover, there is no evidence in the record that Plaintiff was ever issued a DUI and/or received any discipline from FedEx regarding one.

5 6 7 8 9 10 11 12 13 Respectfully submitted, 14 By: 15 16 and 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:03-cv-00642-DGC - 3 Document 117 This evidence is also unfairly prejudicial, confusion of the issues, misleading to the jury, and a waste of time under Fed. R. Evid. 403 as this Court has previously addressed the issue regarding comparators in the Order on Motion. Plaintiff is attempting to re-litigate issues that this Court has already decided. As this Court has ruled that this evidence is not sufficient to establish a claim of discrimination, it can be well assumed that this evidence is likewise insufficient for the retaliation claim.

DATED this 2nd day of November, 2006.

/s/ Mary H. Beard Mary H. Beard FEDERAL EXPRESS CORPORATION

Lori A. Higuera Alec R. Hillbo FENNEMORE CRAIG, P.C. Attorneys for Defendant Federal Express Corporation CERTIFICATE OF SERVICE I hereby certify that on November 2, 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

Filed 11/02/2006

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