Free Response - District Court of Arizona - Arizona

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

J. Mark Ogden, AZ Bar No. 017018 J. Greg Coulter; AZ Bar No. 016890 Kristin R. Culbertson; AZ Bar No. 020801 LITTLER MENDELSON A Professional Corporation Camelback Esplanade 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Facsimile: 602.957.1801 E-Mail: [email protected] [email protected] [email protected] Attorneys for Defendant Connecticut General Life Insurance Company UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, Plaintiff, v. Connecticut General Life Insurance Company, Defendant. I. INTRODUCTION On June 22, 2006, CGLIC filed its Motion in Limine regarding economic damages. On July 14, 2006, the EEOC filed its Response. Recognizing that Lutz v. Glendale Union High Sch. Dist. No. 205, requires the Court to determine the amount of back pay, if any, the EEOC requests this Court to allow the jury to render an advisory verdict. 403 F.3d 1061 (9th Cir. 2005). CGLIC requests that the Court deny the EEOC's Motion and consider the issue of back pay without the advice of the jury. /// /// /// DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR ADVISORY JURY VERDICT ON BACK PAY Case No. CIV'04 0627 PHX JAT

Case 2:04-cv-00627-JAT

Document 135

Filed 07/27/2006

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

II.

LEGAL ANALYSIS A. The EEOC's Motion for an Advisory Jury Verdict is untimely.

As a threshold matter, the EEOC's Motion is untimely. The Court requested that pretrial motions be filed by June 22, 2006, so that they are fully briefed well in advance of the July 31, 2006 Pretrial Conference. Here, the EEOC filed its Motion in conjunction with its Response to a Motion in Limine on July 14, 2006. CGLIC requests that the Court deny the EEOC's Motion as untimely. B. An advisory jury would violate the spirit of controlling Ninth Circuit authority, is unwarranted, and is not binding on the Court.

An advisory jury to aid the Court in its determination of a back pay award would violate the spirit of well-established Ninth Circuit authority holding that the Court, rather than the jury, should determine whether an award of back pay is appropriate, and if so, the amount of the award. Lutz, 403 F.3d at 1069. "Accordingly, we hold that there is no right to have a jury determine the appropriate amount of back pay under Title VII. . ." Id. Although the Federal Rules of Civil Procedure contemplate the use of advisory juries, the EEOC has not provided any evidence demonstrating that this Court needs the assistance of an advisory jury to aid in its determination of an award of back pay. In fact, the use of advisory juries in discrimination cases is generally disfavored, and should "be restricted in any event to the exceptional case where there are peculiar and unique circumstances supporting its use. Moss v. Lane Co. Inc., 471 F.2d 853, 855 (4th Cir. 1973); Cox v. Babcock and Wolcox Co. 471 F.2d 13 (4th Cir. 1972). Here, the back pay issues are neither peculiar nor unique, and an advisory jury is unnecessary. Moreover, assuming the Court utilized an advisory jury it is not bound by its findings or determinations. Rutherford v. Harris County Texas, 197 F.3d 173, 188 (5th Cir. 1999) (recognizing that the district court retained the discretion not to award equitable relief even if the jury granted or awarded such damages). Indeed, the Court must render its own findings of fact and conclusions of law on this issue. Frostie Co. v. Dr. Pepper Co., 361 F.2d 124 (5th Cir. 1966).

Case 2:04-cv-00627-JAT

Document 1352

Filed 07/27/2006

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

III.

CONCLUSION Based on the foregoing, CGLIC respectfully requests this Court deny the EEOC's

Motion for Advisory Jury. RESPECTFULLY SUBMITTED this 27th day of July, 2006.

s/ Kristin R. Culbertson J. Mark Ogden J. Greg Coulter Kristin R. Culbertson LITTLER MENDELSON, P.C. Attorneys for Defendant Connecticut General Life Insurance Company

I hereby certify that I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing on this 27th day of July, 2006. I hereby certify that I mailed a copy of same to the following, this 27th day of July, 2006: Mary Jo O'Neill Sally C. Shanley Katherine J. Kruse Michelle G. Marshall Valerie L. Meyer Equal Employment Opportunity Commission Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, AZ 85012-9688 Attorneys for Plaintiff

s/ Sharon Cooper
Firmwide:81322020.1 042081.1007

Case 2:04-cv-00627-JAT

Document 1353

Filed 07/27/2006

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