Free Response to Motion - 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. Case No. CIV'04 0627 PHX JAT DEFENDANT CGLIC'S RESPONSE TO PLAINTIFF EEOC'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF DEFENDANT'S AFFIRMATIVE ACTION POLICIES, REPUTATION FOR WORKPLACE CULTURE AND DIVERSITY, AND CULTURE AND DIVERSITY OF ITS WORKFORCE AND WORK ENVIRONMENT

I.

INTRODUCTION Plaintiff EEOC moves to prohibit Defendant CGLIC from introducing exhibits1 and

testimony related to CIGNA's: (1) affirmative action policies; (2) reputation regarding workplace culture and diversity, including outside recognition; and (3) the diversity and culture of its workforce.2 The EEOC inadvertently omitted copies of the exhibits it seeks to exclude. For the Court's convenience relevant portions of the exhibits at issue are attached, numbered consistent with their numbers in the Joint Proposed Pretrial Order and the EEOC's Motion.
2 1

The EEOC's Motion in Limine is somewhat unclear as to whether it moves to exclude evidence referencing CIGNA's and CGLIC's affirmative action policies and diversity efforts, or just those pertaining to CIGNA. The caption implies both entities are the subject
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

The EEOC provides two broad bases for excluding the aforementioned evidence: that it is irrelevant and prejudicial. Namely, that the evidence is irrelevant to whether Ms. Santa Cruz was discriminated against and whether she is entitled to punitive damages.3 More specifically, however, the EEOC argues that evidence of CIGNA's affirmative action policies, its reputation for diversity, and the diversity of its workforce should be excluded because the evidence: (1) relates to CIGNA, not CGLIC and they are separate entities; (2) is irrelevant to Kolstad since it goes beyond CGLIC's efforts to adopt anti-discrimination policies, communicate them to its employees, and enforce them; and (3) is prejudicial. II. LEGAL ANALYSIS A. Evidence concerning CIGNA's affirmative action policies, reputation for workplace culture and diversity, and the culture and diversity of its workforce are applicable to CGLIC.

The EEOC initially argues that CIGNA's affirmative action policies, reputation for workplace culture and diversity, and the culture and diversity of its workforce are not applicable to CGLIC because they are two distinct entities. ". . . Defendant has made much of the distinction between CGLIC and CIGNA, highlighting the irrelevance of a CIGNA policy to the actions of CGLIC." (Motion 3:21-23). Initially, the EEOC sued both CGLIC and CIGNA Healthcare of Arizona. These two entities are simply best described as sister entities, both falling under the umbrella of CIGNA Corporation. The dispute was not CGLIC's relationship to CIGNA Corporation or, as

presented here, the trade name CIGNA, but its relationship to CIGNA Healthcare of Arizona and which entity was the proper Defendant. After extensive and costly discovery the EEOC eventually dismissed CIGNA Healthcare of Arizona.

of the Motion, as do parts of the Motion, but the introduction and some portions of the Motion appear to pertain only to CIGNA. Either way, the analysis contained in CGLIC's Response applies to both entities.
3

CGLIC does not intend to use the evidence to demonstrate that it did not discriminate against Ms. Santa Cruz and, therefore, does not address the EEOC's arguments in this regard. Instead, CGLIC seeks to admit the evidence in the punitive damages phase of the trial to demonstrate its good faith efforts to comply with Title VII. Kolstad v. A.m Dental Ass'n, 527 U.S. 526, 119 S.Ct. 2118 (1999).

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

Second, the parties stipulated in their Joint Proposed Pretrial Statement that, "CGLIC is a wholly owned subsidiary of the CIGNA Corporation" and that "[t]he Phoenix Service Center regularly utilizes the `CIGNA' name in conducting its business." (Proposed Joint Pretrial Order § C(1)(1) & (3)). The EEOC erroneously suggests that because CGLIC is a wholly owned subsidiary of CIGNA, they cannot share the same policies. Or, that although CGLIC "regularly uses the name CIGNA in conducting its business," it does not, or cannot, do so in conjunction with its efforts to comply with Title VII. The EEOC provides no legal or factual support for this argument. Indeed, the evidence suggests otherwise. For example, although the parties stipulated to the use of Exhibit 19, the EEOC moves to preclude CGLIC from admitting one page (EEOC-CGLIC-0140), which is part of a larger handbook discussing CIGNA employee programs, services, and facilities. The EEOC

implies that because this handbook uses the trade name "CIGNA" it does not apply to CGLIC. Contained on the first page of Exhibit 19, however, is a representation that the handbook "applies to all . . . of the CIGNA companies identified on the last page of this handbook." (Exhibit 19, EEOC-CGLIC-0131). The last page of the handbook identifies CGLIC as a covered entity. (Exhibit 19, EEOC-CGLIC-0216).4 Like Exhibit 19, CGLIC may establish foundation demonstrating that the other exhibits and testimony pertaining to CIGNA's affirmative action policies, reputation for diversity, and diversity in the workplace are applicable to CGLIC. Moreover, at the beginning of each deposition the EEOC admonished the witness that it was "going to use the term CIGNA today to refer to - - in general to any CIGNA entity unless [specified] otherwise that [it] meant a particular subsidiary of CIGNA." (Gashe Deposition, 10:6-9) (emphasis added). Now it appears that the EEOC wants to preclude exhibits and testimony referencing the name CIGNA, even though the EEOC itself included CGLIC in its definition of CIGNA. For instance, the EEOC specifically identified the

4

Exhibit 137 (EEOC-CGLIC-0244) and Exhibit 148 (EEOC-CGLIC-0991) contain the same caveat: that the polcies contained therein apply to all CIGNA subsidiaries.

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

Phoenix Service Center, which is operated by CGLIC and the subject of this litigation, as CIGNA during the deposition of Tiffanie Dillard, Director of Human Resources. Q. A. ... Q. And I was asking you to clarify what you meant when you answered the question. So you said affirmative action goals for the Phoenix Service Center do not show CIGNA being underrepresented in the female category, right? Correct. So that there are no goals for improvement in that area? Correct. We are 86% female. Does CIGNA's affirmative action program have goals for the Phoenix Service Center? Yes it does.

A. Q. A.

(Deposition of Tiffanie Dillard, 43:19-45:8). Suggesting that Ms. Dillard, or any other witness, cannot render testimony regarding applicable affirmative action policies, reputation for diversity, and diversity of the workplace simply because the EEOC failed to distinguish CIGNA from CGLIC, and, in fact, specifically included CGLIC as part of CIGNA, would prejudice CGLIC. Essentially, the EEOC's Motion is premature. As with any exhibit or testimony CGLIC will establish the necessary foundational elements prior to admission. To the extent that foundation cannot be established the EEOC can assert its objection at trial. 1. CIGNA's affirmative action policies, reputation for culture and diversity in the workplace, and culture and diversity of its workforce are relevant to the jury's Kolstad analysis.

For CGLIC to establish the good-faith defense under Kolstad, it must "at least adopt antidiscrimination policies, make good faith efforts to enforce the policies, make a good faith effort to educate its employees about these policies, and make good faith efforts to enforce them." Winarto v. Toshiba Am. Elec. Components, Inc. 274 F.3d 1276, 1292 (9th Cir 2001) (emphasis added), citing, Cadena v. Pacesetter Corp. 224 F.3d 12-3, 1210 (10th Cir. 2000); Swinton v. Potomac Corp. 270 F.3d 794, 811-12 (9th Cir. 2001); Passantino v. Johnson & Johnson Consumer Prods., Inc. 212 F.3d 493, 517 (9th Cir. 2000). The EEOC takes the
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

unusual position that CGLIC is allowed only to present evidence establishing it met the minimal requirements of Kolstad and its progeny, but is precluded from demonstrating that it goes beyond them. The Kolstad line of cases simply identify the most basic requirements for establishing good faith efforts to comply with Title VII. Id. This is further illustrated by the authorities' use of the phrase "must at least. . . " when describing the defendant's burden. Id. Certainly, CGLIC is not precluded from engaging in additional efforts, including affirmative action and other means to diversify its workforce, to comply with Title VII. The EEOC's position is particularly perplexing since it is contrary to its own internal policies and the legislative intent of Title VII. "The commission encourages voluntary affirmative action and diversity efforts to improve opportunities" for minorities. EEOC Compliance Manual (BNA) 606:0016 (Binder 2). Further, in its Statement of Purpose for the chapter on affirmative action, the EEOC acknowledges that: The principle of nondiscrimination in employment because of race, color, religion, sex, or national origin, and the principle that each person subject to Title VII should take voluntary action to correct the effects of past discrimination and to prevent present and future discrimination without awaiting litigation, are mutually consistent and interdependent methods of addressing social and economic conditions which precipitated the enactment of Title VII. Voluntary affirmative action to improve opportunities for minorities and women must be encouraged and protected in order to carry out the Congressional intent embodied in Title VII. 29 C.F.R. § 1608.1(c) (emphasis added). Recognizing the importance of diversity in the workplace, the EEOC's website offers several articles and press releases encouraging and applauding corporate diversity efforts: The Commission has consistently encouraged employers to adopt proactive measures, or `best practices,' that address barriers to equal opportunity while ensuring fairness to all employees. In a 1998 report on such measures the Commission notes that employers benefit, particularly in today's global economy, from the policies that promote equal opportunity and diversity in their workforce because such policies enable employers to `draw talent and ideas from all segments of the population.' Similarly, in the newly issued Compliance Manual Section on Race and Color Discrimination, we noted that employers `implement diversity initiatives for competitive reasons rather than in
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

response to discrimination, although such initiatives may also help avoid discrimination.' http://www.eeoc.gov/foia/letters/2006/titlevii_advertising_affaction_diversity.html (emphasis added) (internal citations omitted). In a press release posted on its website, EEOC Chair Cari Dominguez reiterated the importance of diversity in the workplace. During [Ms. Dominguez's] remarks, she encouraged the audience to be part of the solution by promoting diversity within their own industry and in their network of candidates. To help firms attract a more diverse pool of candidates, [Ms. Dominguez] offered these suggestions: · Internally, firms should reflect the diversity of the communities they serve; · Firms must reach out to nontraditional networks of minority talent beyond their data bases; · Firms should gain trust and credibility with minority talent through strong, ongoing alliances; and · Firms should focus on pipeline issues to grown and develop more talent. http://www.eeoc.gov/press/5-16-02.html More recently, Ms. Dominguez commented that "[j]ust as diversity boosts companies' bottom lines, we have found that proactive prevention is money well spent for the agency. By devoting resources to stopping discrimination before it occurs, we gain by freeing up staff time and money to concentrate on the serious discrimination that affects too many of our nation's workers." http://www.eeoc.gov/press/3-8-06.html. Likewise, former EEOC Chairman Gilbert Casellas stated, "I am so pleased to participate in a program [Diversity Best Practices] that reaffirms the EEOC's overarching mission of fostering equal opportunity in the workplace and celebrates those employers whose diversity practices are models for unleashing the enormous talent of our richly diverse population."

http://www.eeoc.gov/press/3-8-06.html Because the EEOC's stated policy is to encourage affirmative action programs and diversity efforts to carry out the ideals of Title VII, it is questionable, at best, to argue that

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

such polices are irrelevant to CGLIC's good faith efforts to comply with Title VII. CGLIC is permitted to demonstrate to the jury that it not only meets the minimal requirements set forth by Kolstad and its progeny, but exceeds them. 2. The exclusion of this evidence would be prejudicial to CGLIC.

The EEOC maintains that evidence generally ascribed to CIGNA's affirmative action programs, reputation for workplace culture and diversity, and culture and diversity of its workforce is prejudicial because the evidence "might lead to confusion regarding the kind and nature of policies" necessary to establish the Kolstad affirmative defense. As discussed above, CGLIC's burden is to demonstrate that it at least adopts antidiscrimination policies, communicates them its employees, and enforces them. Kolstad, 527 U.S. 526, 119 S.Ct. 2118. CGLIC will meet this burden using evidence unrelated to the exhibits and testimony referenced in the Motion in Limine. Instead, the evidence at issue demonstrates that CGLIC goes beyond what is required. In light of the EEOC's position promoting affirmative action and diversity efforts to "carry out the Congressional intent embodied by Title VII," it would be prejudicial to CGLIC to exclude this evidence. 29 C.F.R. § 1608.1(c); EEOC Compliance Manual (BNA) 606:0016 (Binder 2). III. CONCLUSION To the extent that CGLIC can establish foundation demonstrating that CIGNA's affirmative action policy, reputation for workplace culture and diversity, and the culture and diversity of its workforce apply to CGLIC, the evidence should not be excluded. Similarly, the EEOC's suggestion that this evidence is irrelevant to the jury's Kolstad analysis is incorrect. Even the EEOC itself acknowledges the importance of affirmative action and diversity efforts in reaching the goals set forth by Title VII. To find otherwise, would undermine the purpose of Title VII and the EEOC. For these reasons, the evidence should not be excluded. /// /// ///
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

RESPECTFULLY SUBMITTED this 14th 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 14th day of July, 2006. I hereby certify that I mailed a copy of same to the following, this 14th day of July, 2006: Mary Jo O'Neill C. Emanuel Smith Katherine J. Kruse Equal Employment Opportunity Commission Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, AZ 85012-9688 Attorneys for Plaintiff s/ Sharon Cooper
Firmwide:81284554.1 042081.1007

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