Free Motion in Limine - District Court of Arizona - Arizona

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Mary Jo O'Neill, AZ Bar 005924 Sally C. Shanley, AZ Bar 012251 Katherine J. Kruse, AZ Bar 019167 Michelle G. Marshall, AZ Bar 017358 Valerie L. Meyer, CA Bar 228586 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Phoenix District Office 3300 N. Central Ave., Suite 690 Phoenix, AZ 85012 Telephone: (602) 640-5029 Fax: (602)640-5009 Email: [email protected] [email protected] Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Equal Employment Opportunity Commission, Plaintiff, vs. Connecticut General Life Insurance Company, Defendant ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civ. 04-0627 PHX JAT PLAINTIFF'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

Plaintiff, Equal Employment Opportunity Commission ("EEOC" or "Commission") respectfully requests that the Court issue an order precluding Connecticut General Life Insurance Company ("CGLIC") from introducing or discussing during the trial of this matter any evidence in any form related to: 1) CIGNA's affirmative action policies; 2) CIGNA's reputation with respect to workplace culture and diversity, including outside recognition; and 3) the diversity and culture of CIGNA's workforce. The EEOC submits the following memorandum in support of its Motion.

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INTRODUCTION This is a case brought under Title VII of the Civil Rights Act of 1964 by the EEOC. The EEOC claims that Defendant unlawfully discriminated against Carmen Santa Cruz based on her sex when it failed to hire Ms. Santa Cruz because she was pregnant. The EEOC also alleges that Ms. Santa Cruz is owed lost wages and compensation for emotional harm resulting from Defendant's unlawful decision not to hire her due to her pregnancy. The EEOC further alleges that Defendant should be punished for the unlawful failure to hire by an award of punitive damages to Ms. Santa Cruz. In addition to denying allegations of discrimination on the basis of sex, Defendant intends to assert that Ms. Santa Cruz is not entitled punitive damages because it undertook good faith efforts to

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comply with Title VII in accordance with Kolstad v. Am. Dental Ass'n, 527 U.S.
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526, 545, 119 S. Ct. 2118, 2129 (1999).
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As part of its defense to liability for pregnancy discrimination and liability
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for punitive damages, Defendant is certain to offer evidence relating to any
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CIGNA affirmative action policies, CIGNA's reputation with respect to workplace
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culture and diversity (including outside recognition and awards), and the diversity
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and culture of CIGNA's workforce, as demonstrated by the many exhibits containing such evidence that have been listed by Defendant in the Joint PreTrial Order. Under Federal Rule of Evidence 401, this evidence is irrelevant to the fact finder's inquiries, both with respect to whether Defendant violated Title VII by discriminating against Ms. Santa Cruz and with respect to whether Ms. Santa Cruz is entitled to punitive damages under Kolstad. Furthermore, the evidence's probative value is substantially outweighed by the dangers of unfair prejudice and confusion of the issues under Federal Rule of Evidence 403. Therefore, under Federal Rules of Evidence 401, 402, and 403, the EEOC seeks to exclude this evidence in both documentary and testimonial form. The documents at issue are all exhibits identified by Defendant in the Joint Pre-Trial Order and are identified with greater specificity in the argument section below.

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ARGUMENT I. EVIDENCE CONCERNING ANY CIGNA AFFIRMATIVE ACTION POLICY IS INADMISSIBLE CGLIC has listed multiple exhibits in the Joint Pre-Trial Order that relate to its affirmative action policy, which expresses CIGNA's commitment "to improving the representation of women and minorities in all employment levels where under representation exists," Ex. 19 at EEOC-CGLIC-0140, and is likely to offer testimony concerning this policy as well. These exhibits include: Ex. 19 at EEOC-CGLIC-0140; Ex. 137, EEOC-CGLIC-0244-0248 at 0247; Ex. 141, D00946-0980 at 0980; Ex. 143, D0983; Ex. 146, D0987-0988; Ex. 147, D09890990; and Ex. 148, D0991-1005 at 0991 & 0993. The evidence at issue should

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be excluded because (1) the evidence fails to meet the relevancy requirement of
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Federal Rule of Evidence 401 and Federal Rule of Evidence 402 requires its
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preclusion, and (2) even if the evidence was logically relevant, it is precluded by
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Federal Rule of Evidence 403, in that its probative value is substantially
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outweighed by danger of unfair prejudice, confusing the issues, misleading the
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jury, and considerations of undue delay.
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Defendant denies that Plaintiff can establish a violation of Title VII because, it argues, its failure to hire Ms. Santa Cruz was due to her rejection of its offer of employment, not her pregnancy. The existence or content of any CIGNA affirmative action policy is in no way probative of whether Defendant failed to hire Ms. Santa Cruz because of her pregnancy. Moreover, Defendant has made much of the distinction between CGLIC and CIGNA, highlighting the irrelevance of a CIGNA policy to the actions of CGLIC. Furthermore, evidence relating to any affirmative action policy is not probative of Defendant's contested liability for punitive damages under Kolstad. Kolstad and its progeny establish that an employer may not be liable for punitive damages where it has at least adopted antidiscrimination policies, made a good faith effort to educate its employees about these antidiscrimination policies, and

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made efforts to enforce the antidiscrimination policies. Cadena v. Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000), quoted in Winarto, v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1292 (9th Cir. 2001). Affirmative action policies such as CIGNA's that provide for increasing the number of female and minority employees are not probative of CGLIC's efforts to adopt, implement, and enforce antidiscrimination policies that protect not just female and minority employees, but all workers. The only purpose Defendants could have for introducing such evidence, therefore, would be to suggest to the jury either that (1) CGLIC adheres to CIGNA's policy of generally seeking to increase the number of its female employees and consequently, its officials did not deny Ms. Santa Cruz a job

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because she would have increased the number of female employees; or (2) the
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existence of a CIGNA affirmative action policy can substitute for the adoption,
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implementation, and enforcement of antidiscrimination policies so as to insulate
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CGLIC from punitive damages liability. The first suggestion is an example of
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incorrect inferential logic because one cannot proceed from the general premise
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­ the existence of a policy favoring increasing the number of female employees -17 18 19 20 21 22 23 24 25 26 27 28

to the necessary and specific conclusion ­ the officials would not have violated the law against pregnancy discrimination. In other words, no causal connection exists between the proposition and the conclusion. Likewise, the second suggestion also requires an incorrect and legally impermissible inferential leap from the existence of an affirmative action policy to the existence of adequate efforts to adopt, implement, and enforce other kinds of policies (e.g., antidiscrimination). Consequently, such evidence is irrelevant and inadmissible pursuant to Federal Rule of Evidence 402. Even if evidence relating to CIGNA's affirmative action policy were logically relevant under Rule 401, such evidence would be inadmissible because any probative value it might have is substantially outweighed by the unfair prejudicial effect of the evidence and the danger of confusion of the issues, and

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Federal Rule of Evidence 403 would preclude its admissibility. Rule 403 protects parties from unfair prejudice when, as here, any probative value is clearly outweighed by the potential for unfair prejudice or confusion of the issues. Fed. R. Evid. 403. Were CGLIC permitted to introduce evidence relating to CIGNA's affirmative action policy, it would have an unfair prejudicial effect, as the jury might conclude inappropriately that CGLIC has an affirmative action policy and that any employer with an affirmative action policy would be unlikely to discriminate. Furthermore, evidence relating to an affirmative action policy might lead to confusion regarding the kind and nature of policies necessary for Defendant to establish an affirmative defense to liability for punitive damages. II. EVIDENCE CONCERNING CIGNA'S REPUTATION AND RECOGNITION REGARDING WORKPLACE CULTURE AND

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DIVERSITY IS INADMISSIBLE
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Among the exhibits listed by Defendants in the Pre-Trial Order are many
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which relate to CIGNA's reputation and any recognition concerning workplace
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culture and diversity. These exhibits include: Ex. 131, D1018-1052 at 1052; Ex.
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148, D0991-1005 at 1003; and Ex. 151, D1014. These exhibits relate to positive
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publicity and recognition received from news outlets and other organizations based on those groups' opinions of CIGNA's reputation for workplace culture and diversity. This evidence is inadmissible both because the evidence fails to meet the relevancy requirement of Federal Rule of Evidence 401 and Federal Rule of Evidence 402 requires its preclusion, and because the evidence is precluded by Federal Rule of Evidence 403, in that its probative value is substantially outweighed by danger of unfair prejudice. Outside opinions concerning CIGNA's general reputation as an employer, are not probative of whether CGLIC failed to hire one specific person, Ms. Santa Cruz, on the basis of her pregnancy, nor are they probative of whether CGLIC adequately adopted, implemented, and enforced antidiscrimination policies so as to avoid punitive damages liability in the matter now before the Court. For

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instance, whether a magazine previously recognized CIGNA as a good employer for certain subgroups of society (Ex. 148) is irrelevant to whether Ms. Santa Cruz rejected CGLIC's offer, as they contend. There is no causal connection between the generalized nature of the recognition of a very large employer like CIGNA and the very specific, particularized question of discrimination against Ms. Santa Cruz by one of its subsidiaries, CGLIC. The mere fact of an award is also irrelevant to demonstrating good faith efforts with respect to antidiscrimination policies, especially where there is no evidence or indication that the award took antidiscrimination policies into account. Therefore, Defendant's sole purpose in introducing such evidence must be to induce the jury to leap from the premise that CIGNA has received recognition

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for its workplace culture to the false conclusion that officials of its subsidiary,
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CGLIC, did not violate Title VII by their actions towards Ms. Santa Cruz, or the
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false conclusion that CGLIC adequately sought to adopt, implement, and enforce
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antidiscrimination policies. Introducing irrelevant evidence for an inappropriate
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purpose is impermissible under Federal Rules of Evidence 401 and 402, and
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exclusion of such evidence is warranted.
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Jurors must reach their own conclusions concerning Defendants' behavior without relying on CIGNA's reputation as opined by any one community. This is especially true where the reputation applies to a large parent company, and might not apply to its subsidiaries when viewed alone. Even if generalized opinions of CIGNA were relevant to the particularized determination concerning Ms. Santa Cruz, the prejudicial effect of those opinions outweighs their probative value under Federal Rule of Evidence 403. Exposure to a parade of awards would lead the jury to draw conclusions about CGLIC's behavior in this matter based not on evidence pertaining to Ms. Santa Cruz, but on a glorified representation of CIGNA's corporate image. This evidence must be excluded to prevent Defendant from unfairly prejudicing the jury with positive publicity unrelated to the questions of fact at issue.

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III.

EVIDENCE CONCERNING THE DIVERSITY AND CULTURE OF CIGNA'S WORKFORCE AND ENVIRONMENT IS INADMISSIBLE CGLIC is also certain to offer evidence of the diversity and culture of

CIGNA's overall workforce and workplace, including policies unrelated to antidiscrimination efforts and evidence of the representation of women and minorities in its workforce. These exhibits include: Ex. 19 at EEOC-CGLIC-0137; Ex. 148, D0991 -1005 at 0995, 0999-1002; and Ex. 151, D1014. This evidence should be excluded because (1) it lacks relevancy as defined by Federal Rule of Evidence 401 and Federal Rule of Evidence 402 mandates its preclusion, and (2) its probative value is substantially outweighed by danger of unfair prejudice and confusion of the issues, necessitating its exclusion under Federal Rule of

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Evidence 403.
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The level of diversity of CIGNA's workforce is irrelevant in determining
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whether Ms. Santa Cruz rejected CGLIC's offer or whether CGLIC discriminated
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against Ms. Santa Cruz on the basis of her pregnancy. The Commission's
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lawsuit does not allege disparate impact or class discrimination against women; it
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is an individual disparate treatment suit on behalf of Ms. Santa Cruz, and
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whether CIGNA or CGLIC employs high or low numbers of female employees is not probative of whether CGLIC discriminated against a particular pregnant job applicant. Also lacking any probative value with respect to individual discrimination against Ms. Santa Cruz is evidence of CIGNA's workplace culture, such as a smoke-free environment policy and employment dispute resolution program for current employees. The existence of such policies in CIGNA's work environment simply is not relevant to whether CGLIC discriminated against Ms. Santa Cruz, a prospective employee. The diversity and culture of CIGNA are also irrelevant to determining whether CGLIC has made good faith efforts to adopt, implement, and enforce antidiscrimination policies in compliance with Title VII and in satisfaction of the Kolstad standard. Statistics concerning the composition of CIGNA's overall

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workforce are not probative. Even assuming that CIGNA's statistics are accurate with respect to its CGLIC subsidiary, an employer may fail to make good faith efforts regarding antidiscrimination policies, yet nevertheless have a competitive representation of women and minorities in its workforce. An employer may also create policies concerning a smoke-free environment, office safety and health, and a dispute resolution program, but fail to make adequate efforts in other areas, such as combating employment discrimination in all its forms. In introducing evidence of the statistical composition of CIGNA's workforce and evidence of workplace culture and environment, CGLIC can only intend to lead the jury from a general proposition to an unconnected conclusion. The presence of women and minorities in the workplace does not logically suggest a

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conclusion about whether Defendant did or did not discriminate, nor does it lead
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to a logical conclusion about whether or not Defendant satisfied its punitive
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damages affirmative defense. Because the evidence offered by Defendant in
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relation to the diversity and culture of CIGNA's workforce and work environment
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does not make discrimination or good faith efforts to combat discrimination more
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or less likely, it must be excluded under Rules 401 and 402.
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Even if this evidence is admissible under Rules 401 and 402, it must be excluded under Rule 403 because its probative value is outweighed by the danger of unfair prejudice and confusion of the issues. As with the evidence of positive publicity, evidence of CIGNA's number of female employees might persuade the jury that discrimination did not occur at CGLIC, regardless of the evidence pertaining to Ms. Santa Cruz. Moreover, evidence of CIGNA's other workplace policies might prejudice the jury against any evidence of discrimination, and confuse the jury as to which policies are relevant to prove CGLIC's Kolstad affirmative defense. CONCLUSION For all the foregoing reasons, the Commission respectfully requests that the Court exclude all documents, testimony, and other evidence relating to 1)

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CIGNA's affirmative action policies; 2) CIGNA's reputation with respect to workplace culture and diversity, including outside recognition; and 3) the diversity and culture of CIGNA's workforce, including but not limited to: Ex. 19 at EEOCCGLIC 0137, 0140; Ex. 131, D1018-1052 at 1052; Ex. 137, EEOC-CGLIC-02440248 at 0247; Ex. 141, D00946-0980 at 0980; Ex. 143, D0983; Ex. 146, D09870988; Ex. 147, D0989-0990; and Ex. 148, D0991-1005 at 0991, 0993, 0995, 0999-1003; and Ex. 151, D1014. Dated this 26th day of June, 2006. Respectfully submitted, MARY JO O'NEILL Regional Attorney SALLY C. SHANLEY Acting Supervisory Trial Attorney s/ Katherine J. Kruse KATHERINE J. KRUSE MICHELLE G. MARSHALL VALERIE L. MEYER Trial Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Phoenix District Office 3300 N. Central Ave., Suite 690 Phoenix, AZ 85012 Attorneys for Plaintiff Certificate of Service I certify that on this 26th day of June 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: J. Mark Ogden, Esq. J. Greg Coulter, Esq. Kristin R. Culbertson, Esq.

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LITTLER MENDELSON PC 2425 E. Camelback Rd., Suite 900 Phoenix, Arizona 85016 Attorneys for Defendants s/Katherine J. Kruse

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