Free Motion in Limine - District Court of Arizona - Arizona

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Mary Jo O'Neill, AZ Bar No. 005294 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

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 PROHIBIT DEFENDANT FROM CALLING EEOC EMPLOYEES AS WITNESSES

Plaintiff Equal Employment Opportunity Commission ("EEOC" or
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"Commission") requests the Court to prohibit Defendant from calling at trial three present or former Commission employees whom Defendant has listed as witnesses it will or may call.1 These witnesses, Cheryl Janes, Charles Burtner and the unnamed "Acting Director" have no personal knowledge of any facts

Commission employee Dolores Nelson is also listed as a witness by both parties. She will testify as to calculation of back pay based on information provided by other witness testimony and exhibits.

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relevant to the issues to be decided by the jury or the Court in this matter. As such their testimony is irrelevant and its only purpose can be to distract the jury. As a will call witness, Defendant has listed:
Cheryl Janes - Ms. Janes was the investigator assigned to investigate the Equal Employment Opportunity charge made by Plaintiff and is a fact witness. She has knowledge and information related to the investigation, as well as the Determination made in this matter. As may call witnesses, Defendant has listed: Charles D. Burtner, Former District Director, EEOC ­ Phoenix District Office - Mr. Burtner was the District Director for the EEOC ­ Phoenix District during all applicable times related to Ms. Santa Cruz's charge and has information related to the investigation of the charge. Mr. Burtner signed the EEOC's Determination and will testify regarding its contents. Mr. Burtner is a fact witness. Assistant Director or Acting Director, EEOC ­ Phoenix District Office - The Assistant or any Acting Director that had contact or information with the charge, investigation and Determination in this matter may have information related to those matters. It is anticipated that any such person will testify regarding their knowledge. This individual is a fact witness. It is clear from these descriptions that these individuals are not being called to testify as to the factual issues before the Court but rather the Commission investigation, which is not relevant.

The case at issue is a de novo action before the United States District Court
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for the District of Arizona. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 38, 94 S.Ct. 1011 (1974). An employer may not litigate the adequacy of EEOC's investigation and determination. See EEOC v. KECO Industries, Inc., 748 F.2d 1097, 1100 (6th Cir. 1984) (error for the district court to inquire into the sufficiency of the Commission's investigation); EEOC v. General Electric Co., 532 F.2d 359, 370 n.31 (4th Cir. 1976) (EEOC's investigation not reviewable, noting the

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substantial "potential for delay and diversion which such an undertaking would create" and the "limited benefit," court holds "the Commission's determination does not establish rights or obligations; the respondent is entitled to a trial de novo in the district court."); EEOC v. Chicago Miniature Lamp Works, 526 F. Supp. 974, 975 (N.D. Ill. 1981) (EEOC's investigation and determination are completely discretionary and not subject to review by court). Following the reasoning of the Fourth Circuit in General Electric, courts have rejected discovery into the factual basis for Commission findings because of the potential to saddle every discrimination case with a mini-trial into the sufficiency of the evidence supporting a Commission determination and the likelihood that a

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probe into the reasonableness of the findings "would deflect the efforts of both the Court and the parties from the main purpose of this litigation: to determine whether . . . [the employer] has actually violated Title VII." Chicago Miniature

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Lampworks, 526 F. Supp. at 975. The only admissible evidence in this case is that provided by the actual witnesses and documents relating to the events in question, not the gathering of facts performed by Commission employees in its investigation or any determination made by the Commission. No testimony from Commission employees can prove or disprove any fact of consequence in this matter at trial. In fact, the EEOC's administrative Letter of Determination has not been listed by either party as a potential exhibit. Although Defendant has listed documents from the investigative file, the Commission has objected to those

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documents as irrelevant hearsay. Having any Commission employees testify would not make those documents relevant. Therefore any testimony by Commission employees does not meet the relevancy requirements of Federal Rule of Evidence 401 Even if Defendant could articulate any possible relevance for the testimony of any of these employees, they should also be excluded under Rule 403. By presenting these present and former employees, Defendant can only seek to confuse the jury by somehow putting the Commission and its investigation "on trial". This is an improper use of the Court's time and that of the jury. Moreover, Mr. Burtner is no longer with the Commission; Ms. Janes has transferred to an

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office out of state and could only be produced at unnecessary cost to the Commission and great inconvenience to her. The third witness, identified only as "Assistant Director or Acting Director, EEOC" is not even identified as a real

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person. The irrelevancy of testimony by an unnamed Commission employee is even more evident.

Moreover, any inquiry into the investigation beyond the facts could only seek to invade the governmental deliberative process privilege against inquiry

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into the analysis of information in the investigation. It is well established that information relating to the Commission's analyses, advice, and recommendations relied upon by the Commission in this

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matter is both irrelevant and protected by the governmental deliberative process privilege. See EEOC v. Sears, Roebuck & Co, 111 F.R.D. 385, 390 (N.D. Ill.

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1986); EPA v. Mink, 410 U.S. 73, 87-89, 93 S.Ct. 827 (1973); NLRB v. Sears, Roebuck & Co, 421 U.S. 132, 149-150, 95 S.Ct. 1504 (1975) (the deliberative privilege protects analyses, advice, recommendations, and conclusions -- resting on much the same need for open communications that supports the attorneyclient privilege, or that permits the judicial process to function freely); EEOC v. GK-G Inc., 131 F.R.D. 553, 556 (N.D. Ill. 1990). Any inquiry beyond what is contained in the file necessarily and improperly seeks privileged information relating to the Commission's process in compiling and analyzing this information. EEOC v. HBE Corp., 157 F.R.D. 465 (E.D. Mo. 1994); Securities and Exchange Commission v. Morelli, 143 F.R.D. 42, 47

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(S.D.N.Y. 1992); In Re Independent Service Organizations Antitrust Litig., 168 F.R.D. 651, 654 (D. Kan. 1996) (plaintiff's effort to use 30(b)(6) to discover facts supporting affirmative defenses is "overbroad, inefficient, and unreasonable.");

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Securities and Exchange Commission v. Rosenfeld, 1997 WL 576021 (S.D.N.Y. 1997) (granting protective order barring Rule 30(b)(6) deposition of SEC seeking factual basis for claims; deposition of SEC, rather than relying on interrogatories, document requests, and depositions of fact witnesses, is "obviously aimed at finding the nature of the SEC's attorney work product, and is denied for that reason"). Based on the above, the Commission requests that the Court not allow Defendant to call the three current and former employees of the Commission.

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Respectfully submitted this 26th day of June, 2006. MARY JO O'NEILL Regional Attorney SALLY C. SHANLEY Supervisory Trial Attorney s/ Katherine J. Kruse KATHERINE J. KRUSE Trial Attorney MICHELLE MARSHALL VALERIE 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

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

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