Free Response in Opposition to Motion - District Court of Arizona - Arizona

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MARY JO O'NEILL, AZ Bar No. 005924 SALLY C. SHANLEY , AZ Bar No. 012251 KATHERINE J. KRUSE , AZ Bar No. 019167 MICHELLE G. MARSHALL , AZ Bar No. 017358 VALERIE L. MEYER , CA Bar No. 228586 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, Arizona 85012 Telephone: (602) 640-5029 e-mail: [email protected] [email protected] Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, Plaintiff, vs. Connecticut General Life Insurance Company, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) CIV 04-0627-PHX-JAT

PLAINTIFF'S RESPONSE TO DEFENDANT' S MOTION IN LIMINE RE: ECO NOMIC DAM AGES; MOTION FOR ADVISORY JURY VERDICT ON BACK PAY

The EEOC respectfully requests that the Court deny Defendant's "Motion in Limine Re: Economic Damages". If necessary, the EEOC also moves for an advisory jury verdict on the issue of the amount of back pay to be awarded Ms. Santa Cruz. I. The Court May Seek an Advisory Verdict From the Jury on the Amount of Back Pay To Be Awarded Even though back pay is a form of equitable relief in Title VII cases, see Lutz v. Glendale Union High Sch. Dist. No. 205, 403 F.3d 1061, 1069-1070 (9 th Cir. 2005), the court may obtain an advisory verdict from the jury on the amount of back pay to be awarded pursuant to Federal Rule of Civil Procedure 39(c). Allison v. CITGO Petroleum Corp., 151 F.3d 402, 423 n. 19 (5 th Cir. 1998); Dilley v. SuperValu, Inc., 296 F.3d 958, 965 (10th Cir. 2002); see also Green v. Adm'rs of Tulane Educ. Fund, 284 F.3d 642, 650, 659 (5 th Cir. 2002) (affirming district court decision affirming advisory jury award of back pay of $124,673 in Title VII action). Juries routinely make determinations about lost wages; thus,

Case 2:04-cv-00627-JAT

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back pay is an appropriate issue for jury consideration. Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 501 (7 th Cir. 2000). The issue of back pay is particularly appropriate for the jury to consider given that the jury will be asked to decide the amount of compensatory damages, if any, to award Ms. Santa Cruz. In deciding compensatory damages, the jury may consider the financial stressors Ms. Santa Cruz experienced as a result of CGLIC's discriminatory conduct; thus the issues of back pay and compensatory damages are related. Given the relationship between the issues, it will be less confusing for the jury to reach both an advisory verdict on back pay and a verdict on compensatory damages. It is undisputed that the EEOC's Complaint in this action included a timely demand for trial by jury. The EEOC also included a request for jury instructions on the issue of back pay in the proposed jury instructions submitted on June 26, 2006. In the event that these actions were insufficient to constitute a request for an advisory jury verdict on back pay, the EEOC hereby respectfully requests that the Court obtain an advisory verdict from the jury on the issue of the amount of back pay to be awarded to Ms. Santa Cruz. The EEOC makes this request pursuant to Federal Rule of Civil Procedure 39(c), which provides: "In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury . . . ." II. Evidence of Ms. Santa Cruz's Back Pay is Not Prejudicial to Defendant Although Defendant argues that the probative value of evidence regarding Ms. Santa Cruz's back pay is substantially outweighed by the danger of unfair prejudice, Fed. R. Evid. 403, Defendant provides no legal or factual support for this argument. Defendant merely makes the generalized assertion that "[e]vidence of Ms. Santa Cruz's economic loss and any financial hardship "would appeal to the jury's sympathies and impact their liability determination" (Def.'s Mot. at 3-4). Defendant's assertion is contrary to standard trial procedure, in which juries routinely make determinations about lost wages. See Pals, 220 F.3d at 501. Defendant does not point to anything about the evidence regarding Ms. Santa Cruz' back pay that differs from evidence typically offered on this issue so as to render the 2

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evidence prejudicial. Moreover, financial hardship experienced by Ms. Santa Cruz is relevant to the issue of compensatory damages, an issue the jury will decide even if it does not address the issue of back pay. There is no basis for a conclusion that a jury's advisory verdict on back pay would be prejudicial to Defendant. III. Conclusion The EEOC respectfully requests that Defendant's M otion in Limine be denied, and that the issue of back pay be submitted to the jury for an advisory verdict. Respectfully submitted this 14 th day of July, 2006. MARY JO O'NEILL Regional Attorney SALLY C. SHANLEY Supervisory Trial Attorney s/Katherine Kruse KATHERINE J. KRUSE MICHELLE G. MARSHALL VALERIE L. MEYER Trial Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 North Central Ave., Suite 690 Phoenix, Arizona 85012-2504 Attorneys for Plaintiff

CERTIFICATE OF SERVICE I certify that on this 14 th day of July 2006, I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: J. Mark Ogden, Esq. J. Greg Coulter, Esq. Kristin R. Culbertson, Esq. LITTLER MENDELSON 2425 E. Camelback Rd., Suite 900 Phoenix, Arizona 85016-4242 Attorneys for Defendants s/Katherine Kruse 3

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