Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02073-WDM-KLM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.03-CV-02073-WDM-PAC ROBERTA PULSE, TONYA. HOUSE, Plaintiffs, v. THE LARRY H. MILLER GROUP, Defendant. _____________________________________________________________________ PLAINTIFFS' REPLY IN SUPPORT OF SECOND MOTION IN LIMINE ______________________________________________________________________ Plaintiffs have submitted a Motion for Extension of Time to file Plaintiffs' Reply in Support of Second Motion in Limine, requesting authorization to file the reply by January 3, 2006. Doc. 224, 12/30/05. Plaintiffs respectfully submit this Reply in the event Plaintiffs' extension is granted. Plaintiffs request this Court to enter an Order granting Plaintiffs' Second Motion in Limine, ruling admissible the Defendant's Responses/Position Statements to Charges of Discrimination, and state as follows: 1. Pre-Conciliation EEOC Position Statements Are Admissible Where They Contained No Statements of Compromise, Settlement, or Negotiation The Tenth Circuit has not addressed specifically the admissibility of EEOC Position Statements in the context of Title VII.

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Considering this issue in an ADEA case, the Tenth Circuit instructed that it intends no "per se" rule of exclusion, and that each case must be judged on the basis of the particular record involved." See EEOC v. Gear Petroleum, 948 F.2d 1542, 1545 (10th Cir. 1991). In a more recent case virtually indistinguishable from the case at bar, another court considering this precise issue in the context of Title VII held that a company's position statement was admissible. See Brooks v. Grandma's House Day Care Centers, Inc. 227 F.Supp. 2d 1041,1044 (E.D. Wis. 2002).1 In Brooks, plaintiff attempted to introduce in evidence a Position Statement defendant's counsel submitted to the EEOC in response to the charge of discrimination. Id. at 1042. The statement denied that the employer had discriminated and asserted facts in support of the employer's position. Id. at 1043. It did not contain a settlement offer or any information relating to settlement ­ only factual information relating to defendant's position on the merits. Id. at 1044. The defendant in that case made the same arguments Defendant makes here ­ arguing that 42 U.S.C. s 2000e-5(b) barred the position statement's admission in evidence. Id. Rejecting defendant's argument, the court considered the statutory purposes of Title VII, as well as the applicability of Fed.R.Evid. 408 and found the position statement

The Brooks court distinguished Gear, an ADEA case subject to different standards than Title VII. Id. at 1044. Importantly, in Gear, the Tenth Circuit relied on a provision in the ADEA, which is not part of Title VII, to conclude that the ADEA makes no provision for a "preconciliation" investigation stage. Conversely, Title VII expressly provides for a preconciliation investigation stage, thus Gear is distinguishable on the law and facts, and the court's exclusion of the position statements in the ADEA case was based on a mandatory provision in the ADEA not present in Title VII.

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admissible.2 Id. The court emphasized that Title VII bars statements made if the EEOC determines after investigation, that there is reasonable cause to believe that the charge is true. Id. The court also analyzed the purposes of Title VII and Rule 408, and

concluded that Title VII did not bar admission of the position statement, not only because it was written before a cause finding was issued (and therefore was not written in the course of conciliation efforts), but also because it contained no statements relating to compromise, settlement, or negotiation. Id. Similarly, in this case, the Position Statements were submitted in response to the notice of charge of discrimination. The EEOC did not issue a finding of reasonable cause, and no conciliation was ever even attempted in this case. Therefore, the

Position Statements at issue were not submitted for the purposes of conciliation and are not covered by Title VII's provision excluding statements made during conciliation. Moreover, the Position Statements contained no statements relating to compromise, settlement, or negotiation, and Plaintiffs do not seek to admit any such statements. See Doc. 157-1, Plaintiff's Second Motion in Limine, pp. 2-3, and attached Ex. 1, Position Statements. Thus, they do not constitute offers of compromise within the meaning of FED.R.EVID. 408. Indeed, Rule 408 by its terms permits evidence presented in the course of compromise negotiations when the evidence is offered for another

The Brooks court analyzed Title VII, which provides in part: "If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned."

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purpose. See FED.R.EVID. 408. Importantly, Plaintiffs seek to admit these statements in the first part of the Bifurcated Trial for the purposes of establishing ownership, control, and integrated employer status, not for liability on the merits of the sexual harassment or retaliation. 2. The Position Statements Are Admissions by a Party Opponent The Position Statements are not hearsay, because they are an admission by a party opponent. See Fed.R.Evid. 801(d)(2). Vice President Tony Schnurr participated in the preparation of the Position Statements. See Deposition of T. Schnurr, Doc. 195, 12/21/05; p. 59, ll. 11-17. Moreover, the Position Statements were submitted by Counsel for Defendant, a person who had authority to act as an agent, and the statements were made in the course of exercising that authority. The Court need look no further than the Position Statement themselves to make that determination, as the face of the Position Statements in the first sentence confirms that Judith Holmes submitted the Position Statements in the course of exercising her authority as legal counsel: "The Respondent Larry Miller Group . . . by and through its attorneys, Judith H. Holmes . . . respectfully submits the following Position Statement." See Position Statement, p.1, See Doc. 157-1, Ex. 1. Defendant had the opportunity to disclaim its Position Statement at any time during the EEOC process if it believed that the statements therein were erroneous. It did not. Permitting Defendant to disclaim the contents after the conclusion of the EEOC administrative proceedings would make a mockery of the proceedings, as it would give 4

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respondents carte blanche to make any representations to the federal government, truthful or not, accurate or not, and disclaim any responsibility after the fact. This would turn the EEOC administrative process on its head, decimate the EEOC investigatory process, and hamper the remedial purposes of Title VII. Defendant contends that Plaintiffs may establish that the statements of Defendant's attorney are evidentiary admissions by demonstrating authorization or agency. Based on the face of the Position Statements, even under Defendant's

analysis, the Position Statements constitute evidentiary admissions under FED.R.EVID. 801(d)(2)(C) and (D), and therefore, by definition are not hearsay. 3. Rule 403 Does Not Apply Here

Although Defendant attempts to deprive Plaintiffs of their ability to introduce relevant evidence by arguing "confusion of the jury" and "waste of time" under FED.R.EVID. 403, this argument rests on a faulty premise and should be rejected. Defendant's premise that admission of the Position Statements would confuse the issues is false. In fact, their admission would clarify the issues. One of the core legal issues in Phase 1 of this Bifurcated Trial is the identity of the employer. The Position Statement states that "Plaintiff Tonya House was employed by the Larry Miller Group" and that "Ms. Ashburn was the Human Resources Director for The Larry Miller Group." See Plaintiff's Motion in Limine, Doc. 157-1, 11/18/05, at p. 2, 3(b), (i), citing Ex. 1, Position Statement. Another core legal issue is the interrelation of operations. The Position

Statement concedes that "Tony Schnurr, Pat Kroneberger, and other members of Larry 5

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Miller's top management team from the Sandy, Utah, corporate office were frequently at the Toyota dealership throughout 2000 and 2001." Id. at (g). A third core issue is centralized control over labor relations. The Position

Statement confirms that "Ms. Ashburn visited the Toyota store on at least three occasions in 2000 and 2001 to review the human resources operations, and to conduct training sessions for the managers on Larry Miller's policies prohibiting harassment and retaliation." Id. at (h). The foregoing confirms the probative value of these Position Statements. When weighed against Defendant's vague concerns that the jury might be confused, Defendant simply has failed to show that the probative value of these Position Statements would be substantially outweighed by the dangers of misleading the jury or wasting time. Conclusion For the foregoing reasons, and those stated in Plaintiffs' Second Motion in Limine, Plaintiffs respectfully request this Court to enter an Order ruling admissible Defendant's Response to Charge of Discrimination for Ms. Pulse and for Ms. House, attached at Exhibits 1 and 2 to Plaintiff's Second Motion in Limine.

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Dated this the 2nd day of January, 2006. RESEPECTFULLY SUBMITTED, Kimberlie K. Ryan s/ Kimberlie K. Ryan for Ryan Law Firm, LLC 283 Columbine St. #157 Denver, CO 80206 Tele: (303) 355-0639 Fax: (303) 355-3020 E-mail: [email protected] Whitney C. Traylor W.C. Traylor & Associates, LLC 700 E. 24th Ave., #1 Denver, Colorado 80205 Office: (303) 321-1862 Fax: (303) 837-1214 Email: [email protected]

CERTIFICATE OF SERVICE I certify that on the 2nd day of January, 2006, I electronically filed the Plaintiffs' Reply in Support of Plaintiffs' Second Motion in Limine with the Clerk of Court using the CM/ECF system, which will send notification to the following addresses to counsel of record; Judy Holmes, [email protected] Steven M. Gutierrez, [email protected] Christopher M. Leh, [email protected] s/ Kimberlie K. Ryan

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