Free Trial Brief - District Court of Arizona - Arizona

1 Sharon S. Moyer No. 013341 [email protected] 2 Mark D. Dillon No. 014393 [email protected] 3 SACKS TIERNEY P.A. 4250 N. Drinkwater Blvd., 4th Floor 4 Scottsdale, AZ 85251-3693 Telephone: (480) 425-2600 5 Attorneys for Defendant 6 7 8 9 Connie Pappas, 10 11 vs.
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Plaintiff,

No. CV03 1449 PHX PGR DEFENDANT'S TRIAL BRIEF

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12 J.S.B. Holdings, Inc., an Arizona corporation, dba R&D Specialty/Manco, 13 Defendant. 14 15

Pursuant to this Court's May 8, 2006 Trial Order, Defendant submits the following

16 as its Trial Brief. 17 I. 18 FACTUAL ISSUES As set forth in the parties' Rule 16 Pretrial Conference Memorandum, there are

19 significant disputed issues of fact in this case. This is a summary of the factual issues 20 Defendant expects to be presented to the jury. 21 First, Connie Pappas claims that she was subjected to a series of incidents while she

22 was employed at JSB Holdings, Inc. ("JSB"), which she found to be upsetting. JSB admits 23 that some of the incidents occurred. For example, one co-worker stapled her business cards 24 together and there were some work-related arguments between Ms. Pappas and other co25 workers. Other incidents simply did not occur. For example, no co-worker deliberately ran 26 into her and used of the terms "b----" and "c---" in speaking to Ms. Pappas. The factual 27 issue that the jury will have to decide is which incidents actually occurred. 28
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Another important factual issue involves precisely which incidents were and were
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1 not reported to JSB management. JSB acknowledges that Ms. Pappas reported some 2 incidents to her supervisor, but they were very limited in comparison with what she now 3 claims occurred. Further, she never reported these incidents in a manner such that JSB 4 could or should have had any inkling that Ms. Pappas believed the incidents were related to 5 her gender, until after she resigned. The incidents seemed to involve petty, juvenile 6 conduct completely unrelated to gender. Here, the jury will have to decide which incidents 7 were and were not communicated to JSB, and precisely what Ms. Pappas said to 8 management about each incident. 9 The final major factual issue the jury will be required to resolve is what action JSB

10 took in response to Ms. Pappas' reports. Did management do nothing, as Ms. Pappas 11 alleges, or did the company conduct employee meetings, encourage team work and
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 reprimand the employees involved in the conduct Ms. Pappas found to be upsetting? JSB's 13 evidence will be that the company took action when management became aware of her 14 concerns, even though it was never apparent that she was claiming that she was being 15 sexually harassed. 16 II. 17 LEGAL ISSUES In addition to the factual issues, Defendant expects several legal issues to arise at

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18 trial, and Defendant addresses those issues here, as well. The legal issues are (A) that Ms. 19 Pappas cannot establish an actionable hostile environment based on sex; (B) that a punitive 20 damages jury instruction is not appropriate; (C) that the DES determination is not 21 admissible; (D) that the EEOC Notice of Dismissal is admissible; and (E) that Ms. 22 Williams may testify only about Ms. Pappas' harassment. Defendant addresses each of 23 these in turn. 24 25 26 It is well settled that to establish a hostile work environment claim, Pappas must A. Ms. Pappas Cannot Establish an Actionable Hostile Environment Based on Sex.

27 show "a pattern of ongoing and persistent harassment severe enough to alter the conditions 28 of employment." Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66-67 (1986). She must prove
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1 that the harassment occurred because of her sex. Oncale v. Sundowner Offshore Serv., 2 Inc., 523 U.S. 75 (1998). And, "[i]n order to be actionable under [Title VII], a sexually 3 objectionable environment must be both objectively and subjectively offensive, one that a 4 reasonable person would find hostile or abusive, and one that the victim in fact did perceive 5 to be so." Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The Supreme Court has 6 consistently emphasized that Title VII was never intended to protect employees from all 7 unpleasant and rude conduct in the workplace. See id. ("the ordinary tribulations of the 8 workplace, such as the sporadic use of abusive language, gender-related jokes, and 9 occasional teasing" will not satisfy the standard). Title VII is not a general civility code 10 and is not intended to prohibit boorish conduct, pranks, horseplay or even juvenile acts by 11 adults in the workplace. See Oncale, 523 U.S. at 81; see also Faragher, 524 U.S. at 788
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 ("simple teasing, offhand comments, and isolated incidents (unless extremely serious) will 13 not amount to discriminatory changes in the 'terms and conditions of employment'"). 14 To prevail under a hostile work environment claim, the plaintiff must then prove that

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15 her employer is liable for the hostile work environment. The Ninth Circuit has held that the 16 plaintiff has the burden of showing that the employer knew or should have known of the 17 harassment and took no effective remedial action to end the hostile work environment. 18 Mockler v. Multnomah County, 140 F.3d 808, 812 (9th Cir. 1998). 19 Two other Ninth Circuit cases serve as a useful comparison to the facts of the In Kortan v. California Youth

20 present case: the Kortan case and the Montero case.

21 Authority, 217 F.3d 1104 (9th Cir. 2000), Kortan worked as a clinical staff psychologist. 22 Her supervisor appointed her as acting senior psychiatrist in June 1989. She had no 23 complaints about him until February 1994, when she wrote him a memo and told him she 24 no longer wanted to be "acting senior" in his absence. Over coffee with him after receiving 25 the memo, Kortan says her supervisor referred to one female as a "regina," and said that 26 person "laughs like a hyena." He also referred to a former assistant superintendent as a 27 "Madonna," "regina" and a "castrating bitch." In that same conversation, he referred to 28 women generally as "bitches" and "histrionics." Thereafter, Kortan complained about him
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1 to the assistant superintendent. After she complained about her supervisor, he started to 2 give her "the looks" and to stare at her instead of smiling like before. The court found that 3 his comments were offensive, but they did not constitute actionable sexual harassment. Id. 4 at 1110 (citing Meritor, 477 U.S. at 67 (mere utterance of epithet which engenders 5 offensive feelings would not affect conditions of employment to sufficiently significant 6 degree necessary for violation of Title VII)). 7 The court in Kortan pointed to Montero v. AGCO Corp., 192 F.3d 856 (9th Cir.

8 1999) to illustrate the type of conduct that gives rise to a hostile working environment. In 9 Montero, the plaintiff was the only female employee at a parts distribution center. Over a 10 two-year period, one supervisor called her a "butt-kiss," told her he was going to spank her, 11 and made crude gestures. Another supervisor grabbed his crotch while speaking with her,
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 placed his face on her bottom, told her he had sexual dreams about her, put his hand on her 13 chair as she sat down, tried to bite her neck, and knelt in front of her and tried to put his 14 head between her knees. Another employee commented about the small size of his penis 15 and told Montero to dance naked on the desk. Id. 16 The conduct about which Pappas complains is simply not comparable to the events

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17 in Kortan and Montero. See id. at 860 ("conduct must be extreme to amount to a change in 18 the terms and conditions of employment"). Pappas accuses her co-workers only of a few 19 juvenile pranks. Even if her co-workers used the derogatory names that she claims, the 20 name-calling does not compare to the name-calling in Kortan, and the pranks do not rise to 21 anywhere near the levels of Montero. Moreover, even if her co-workers were intending to 22 bother the Plaintiff, there is no evidence that they were attempting to bother her because of 23 her gender. In short, Plaintiff's hostile environment claim fails on every level, and it 24 should be dismissed as a matter of law. 25 26 B. Ms. Pappas Cannot Establish Constructive Discharge.

A plaintiff cannot establish constructive discharge merely by establishing a hostile

27 work environment. Rather, "a hostile-environment constructive discharge claim entails 28 something more: a plaintiff who advances such a compound claim must show working
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1 conditions so intolerable that a reasonable person would have felt compelled to resign." 2 Suders, 542 U.S. 129, 147 (2004). The Court quoted a Seventh Circuit case explaining that 3 "unless conditions are beyond ordinary discrimination, a complaining employee is expected 4 to remain on the job while seeking redress." Id. (quoting Perry v. Harris Chernin, Inc., 126 5 F.3d 1010 (7th Cir. 1997)). 6 Thus, in order to prevail on her Title VII constructive discharge claim, Pappas must

7 prove (a) that she was subjected to offensive verbal or physical conduct of a sexual nature 8 that was sufficiently severe or pervasive to alter the conditions of her employment and 9 create an abusive working environment, (b) that JSB Holdings is liable for this hostile 10 environment because it knew or should have known of the offensive conduct but did not 11 take effective remedial action, and (c) that her working conditions were so intolerable that a
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 reasonable person would have felt compelled to resign. 13 14 C. A Punitive Damages Jury Instruction Is Not Appropriate.

Even if Plaintiff's sex discrimination claims goes to the jury, the Court should

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15 dismiss the punitive damages claim. The standards for submitting a punitive damages 16 claim to the jury are strict, and Plaintiff will likely not be able to present the required 17 evidence to sustain such a claim. Defendant will, therefore, move for judgment as a matter 18 of law on punitive damages pursuant to Fed.R.Civ.P. 50. 19 In Title VII cases, punitive damages are available only in cases in which the

20 employer has engaged in intentional discrimination and has done so "with malice or with 21 reckless indifference to the federally protected rights of an aggrieved individual." Kolstad 22 v. American Dental Assoc., 527 U.S. 526, 529-30 (1999) (quoting from 42 U.S.C. 23 § 1981a(b)(1). The standard is statutory and was designed by Congress to apply in only a 24 limited subset of cases involving intentional discrimination. Kolstad, 527 U.S. at 534. As 25 the Supreme Court explained: "Congress plainly sought to impose two standards of

26 liability--one for establishing a right to compensatory damages and another, higher 27 standard that a plaintiff must satisfy to qualify for a punitive award." Kolstad, 527 U.S. at 28 534. The standard focuses on an employer's state of mind: the statutory terms "malice"
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1 and "reckless indifference" pertain to the employer's knowledge that it may be acting in 2 violation of federal law, not its awareness that it is engaging in discrimination. Id. at 535. 3 At a minimum, an employee must prove that the employer discriminated in the face of a 4 perceived risk that its actions would violate federal law. Id. at 536. In other words, there 5 must be evidence that the employer was aware of anti-discrimination laws and acted in the 6 face of this awareness. Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1198 (9th Cir. 2002). 7 The present case deals with allegedly discriminatory behavior by the Plaintiff's co-

8 workers. Consequently, the inquiry into the availability of punitive damages does not end 9 with a showing of the requisite "malice" or "reckless indifference" on the part of the actors 10 involved--the Plaintiff must also impute that liability to the employer. Kolstad, 527 U.S. 11 at 539-40. To determine whether the acts of the co-workers may be imputed to the
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 employer, the court must turn to the general common law of agency. Id. at 542. In this 13 regard, the Supreme Court starts its analysis with the formulation of agency principles set 14 forth in the RESTATEMENT (SECOND) OF AGENCY § 217C ("RESTATEMENT"), which states 15 the following: 16 17 18 19 20 21 22 Kolstad, 527 U.S. at 542-43 (citing RESTATEMENT § 217C). The Supreme Court, however, 23 has modified sub-paragraph (c) of the RESTATEMENT'S formulation on policy grounds, so 24 that in the Title VII context, an employer may not be vicariously liable for punitive 25 damages for the discriminatory employment decisions of its agents, even of its managerial 26 agents, where these decisions are contrary to the employer's good faith efforts to comply 27 with Title VII. Kolstad, 527 U.S. at 545. The United States Court of Appeals for the Ninth 28 Circuit has restated this holding by articulating that an employer has an affirmative defense
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Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if: (a) (b) (c) (d) the principal authorized the doing and the manner of the act, or the agent was unfit and the principal was reckless in employing him, or the agent was employed in a managerial capacity and was acting in the scope of employment, or the principal or a managerial agent of the principal ratified or approved the act.

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1 to punitive damages liability when the employer has a bona fide policy against 2 discrimination, even in cases involving a tangible employment action.1 Passantino v. J & J 3 Consumer Products, 212 F.3d 493, 516 (9th Cir. 2000). 4 Presuming, for the sake of argument, that Plaintiff is able to prove that she was a

5 victim of a gender-based hostile work environment and that the employer bears legal 6 liability for that hostile environment, the Plaintiff's claim for punitive damages will likely 7 fail for lack of evidence. In accordance with the above-stated standards, Plaintiff will have 8 to prove that the "harassers" were aware not only that their conduct was harassing, but that 9 it was a violation of federal law. Plaintiff will then have to prove that the conduct of 10 Plaintiff's co-workers should be imputed to the employer under RESTATEMENT § 217C, as 11 modified. There will be no evidence that the employer authorized the harassing conduct.
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 (RESTATEMENT § 217C, ¶ (a)) There has never been an allegation of negligent hiring or 13 retention (RESTATEMENT § 217C, ¶ (b)) and there is no evidence that the employer ratified 14 the harassing conduct. (RESTATEMENT § 217C, ¶ (d)) To the contrary, the evidence will be 15 that the employer made an effort to put an end to the conduct. 16 Lastly, even if Plaintiff did prove the requisite mental state by her co-workers, and

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17 even if the Defendant could be vicariously liable for their acts, a punitive damages claim 18 must fail because the Defendant satisfies all of the requirements for the affirmative defense. 19 More specifically, the evidence will show that the Defendant had a bona fide anti20 discrimination policy in place and that any harassing conduct by the Plaintiff's co-workers 21 would have been expressly against the company's written policy. Plaintiff will be unable at 22 trial to prove that the policy was not implemented in good faith. To the contrary, her own 23 testimony reveals that the policy was, in fact, a legitimate one, one whose protections she 24 25 Plaintiff in the present case claims a constructive discharge, which under certain 26 circumstances can constitute a "tangible employment action." See Pennsylvania State Police v. Suders, 542 U.S. 129 (1004) (constructive discharge is tangible employment 27 action if caused by supervisor in his or her managerial capacity). Plaintiff's claims do not meet the Suders criteria, as those who created her allegedly intolerable environment were 28 not her supervisors and had no authority over her.
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1 sought to invoke, and one which the company president followed in an effort to stop the 2 alleged behavior of Plaintiff's co-workers. 3 therefore, fail. 4 5 D. The DES Determination Is Not Admissible. Plaintiff's punitive damages claim must,

Plaintiff has also indicated her intent to introduce into evidence the decision of the

6 Department of Economic Security ("DES") unemployment compensation appeals tribunal. 7 Defendant opposes admission of that decision for several reasons: (a) unlike an EEOC 8 determination, the DES decision does not meet the relevant factors for admissibility as set 9 out by the Supreme Court in Alexander v. Gardner-Denver Co.; (b) even if the DES 10 decision were treated as an EEOC determination, it is a final decision similar to an EEOC 11 letter of violation and is therefore not per se admissible--it is subject to a Fed. R. Evid. 403
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 analysis; and (c) the DES decision is "untrustworthy" within the meaning of Fed. R. Evid. 13 803(8)(c). 14 15 1. The DES decision should not be treated like an EEOC determination.

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Plaintiff relies on Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995) for the proposition

16 that the per se admissibility rule for EEOC probable cause determinations "is not restricted 17 solely to EEOC findings of probable cause but extends to similar administrative 18 determinations." Heyne, 69 F.3d at 1483. In Heyne, the court held that a probable cause 19 determination from the Nevada Equal Rights Commission was admissible per se just as an 20 analogous determination from the EEOC would have been. Id. Heyne does not deal with 21 an unemployment compensation decision, and Defendant is unaware of any Ninth Circuit 22 decision applying Heyne's reasoning to an unemployment compensation decision, i.e., 23 whether an unemployment compensation decision should be treated as a "similar 24 administrative determination" admissible under the Ninth Circuit's rules for EEOC 25 determinations. 26 Two district court cases from our circuit do deal with the admissibility of an

27 unemployment compensation decision. Plaintiff refers the Court to Baldwin v. Rice, 144 28 F.R.D. 102, 105 (E.D. Cal. 1992). In Baldwin, a federal magistrate discussed the Ninth
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1 Circuit law regarding the admissibility of EEOC determinations and then admitted a 2 decision from the California Unemployment Insurance Appeals Board. However, in a 3 more recent case, Bradshaw v. Golden Road Motor Inn, 885 F. Supp. 1370, 1375 (D. Nev. 4 1995), a federal district judge explicitly rejected the magistrate's reasoning in Baldwin, and 5 instead held that while an unemployment hearing officer's decision may be admitted in a 6 federal discrimination suit, it normally should not be. The court reasoned that the relevant 7 factors in determining the admissibility of an arbitration decision in a discrimination suit, as 8 set forth by the Supreme Court in Alexander v. Gardner-Denver Co., 414 U.S. 26 (1974), 9 should be applied to decisions by agencies responsible for adjudicating unemployment 10 compensation claims. Id. at 1373. Those factors include: the existence of provisions that 11 conform substantially to Title VII, the degree of procedural fairness in the arbitral forum,
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12 adequacy of the record with respect to the issue of discrimination, and the special 13 competence of the arbitrator. Id. Applying those factors to the unemployment

14 compensation decision, the Bradshaw court reasoned that: 15 16 17 18 19 20 21 Id. 22 This Court should follow Bradshaw over Baldwin. The Bradshaw case offers a an unemployment compensation hearing will normally fail to meet the four Alexander criteria. The hearing may well be procedurally fair and an adequate record may be made on the issue of discrimination. Still, state unemployment statutes are even less likely than collective bargaining agreements to contain provisions that "conform substantially" to Title VII; the question at the hearing is whether the employee is entitled to compensation under state statutes, not whether the employee was discriminated against in violation of federal law. Also, the hearing officer or board will typically have no special competence in deciding claims of discrimination.

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23 more fully reasoned rationale regarding the admissibility of unemployment compensation 24 determinations. It also uses a test of admissibility that is based squarely on Supreme Court 25 precedent. Finally, the Bradshaw court reviewed the Baldwin case and specifically

26 declined to follow its holding. 27 In the present case, the DES decision, like the decision at issue in Bradshaw, fails to

28 meet the Alexander criteria. The DES ruling that Pappas "left work involuntarily with good
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1 cause" was based on the applicable sections of the Arizona Administrative Code, which 2 does not "conform substantially" to the constructive discharge standards of Title VII. The 3 unemployment compensation hearing dealt with the issue of whether Pappas was entitled to 4 compensation because she left with good cause under Ariz. Admin. Code § R6-3-50515, 5 which provides that a worker "leaves with good cause if it is established that the conditions 6 were so unpleasant that remaining at work would create an intolerable work situation for 7 him." Good cause can be established by an inharmonious relationship with a fellow 8 employee. In contrast, the standard at issue in a Title VII claim is whether, looking at the 9 totality of the circumstances, a reasonable person in the employee's position would have 10 felt that he or she was forced to quit because of intolerable and discriminatory working 11 conditions. Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987) (quoting
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 Satterwhite v. Smith, 744 F.2d 1380 (9th Cir. 1984)). The DES standard makes no mention 13 of a "discriminatory" workplace. Under the DES standard, if one has a personality conflict 14 with a co-worker, he or she may collect benefits. Moreover, there is no evidence that the 15 DES tribunal has any special competence in Title VII matters, nor that it adheres to the 16 rules of procedure and evidence that apply in federal court. Therefore, as in Bradshaw, the 17 DES determination should not be admitted here. 18 At least one district court outside of the Ninth Circuit has also ruled that

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19 unemployment compensation proceedings are not admissible in federal civil actions. In 20 Rekhi v. Wildwood Indus., 816 F. Supp. 1312, 1315 (C.D. Ill. 1993), an Illinois state statute 21 expressly prohibited the admission of unemployment compensation decisions in subsequent 22 litigation. The court held that the statute applied to the federal case, although it did not 23 elucidate its rationale for this holding, and ruled that the unemployment decision was 24 inadmissible. Id. Thus, it is clear that in at least some cases a federal court will apply a 25 state statute prohibiting the use of unemployment compensation decisions as evidence. 26 Arizona has a statute--A.R.S. § 23-672.01--that is almost identical to the Illinois statute at 27 issue in Rekhi. Therefore, the DES determination should similarly be excluded. 28
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2.

The DES determination should not be admitted because its probative value is outweighed by its potential for unfair prejudice.
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1

Even if the Court were to conclude that the DES determination is a "similar

2 administrative decision" that should be governed by the Ninth Circuit's rules of 3 admissibility for EEOC decisions, Heyne, 69 F.3d at 1483, the Court would still retain 4 discretion to admit or exclude it. With respect to EEOC decisions, there is a distinction 5 between probable cause determinations and letters of violation. The per se rule of

6 admissibility applies only to the former, while the latter are typically excluded under 7 Fed. R. Evid. 403. Gilchrist v. Jim Selmons Imports, Inc., 803 F.2d 1488, 1500 (9th Cir. 8 1986). The DES determination is a final ruling and, therefore, would be subject to the Rule 9 403 analysis, just like the EEOC letter of violation in Gilchrist. 10 Under Fed. R. Evid. 403, the DES decision is highly prejudicial and should, thus, be In the words of the Gilchrist court, because the decision

11 excluded from evidence.
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 represents a finding by DES that Pappas left work involuntarily and with good cause as a 13 result of harassment by her coworkers, "a jury may find it difficult to evaluate 14 independently evidence" provided at trial "after being informed that [DES] has already 15 examined the evidence" and formed a conclusion. Id. Moreover, the jury is likely to be 16 confused by the DES decision because the issue involved in an unemployment 17 compensation hearing is different from a Title VII suit. Finally, the Arizona state

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18 legislature decided as a matter of policy that DES decisions should not be admissible in 19 subsequent actions (see A.R.S. § 23-672.01), apparently believing that the possible 20 prejudicial effect of admitting an informal agency decision to be high. This legislative 21 policy choice should be respected. Because the potential for unfair prejudice is high, the 22 DES determination should not be admitted. 23 24 3. The DES is "untrustworthy" and therefore inadmissible.

Finally, if the EEOC and other administrative agencies are admitted in a case, they

25 are generally admitted under Fed. R. Evid. 803(8)(c), the public records and reports 26 exception to hearsay. Under Rule 803(8)(c), such a report is admissible "unless the sources 27 of information or other circumstances indicate lack of trustworthiness." In Wittenberg v. 28 Wheels, 963 F. Supp. 654, 660 (N.D. Ill. 1997), the court held that a decision by the Illinois
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1 DES did not satisfy Rule 803(8)(c) because unemployment compensation benefits are 2 considered in informal proceedings and Illinois state law provides that decisions of benefits 3 hearings are not admissible in any other action. Because Arizona has a nearly identical 4 statute and because the DES hearings in this case are similarly informal, the DES 5 determination is not "trustworthy" and is, therefore, not admissible under Rule 803(8)(c). 6 7 E. The EEOC Notice of Dismissal Is Admissible.

Another legal issue that will arise at trial is the admissibility of the EEOC's

8 dismissal in favor of Defendant. Unlike the DES decision, the EEOC dismissal is fully 9 admissible under well-established Ninth Circuit precedent, as it is the defense-equivalent of 10 a "probable cause" determination. 11
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As mentioned above, the Ninth Circuit follows a per se rule of admissibility for

12 EEOC probable cause determinations. Gilchrist, 803 F.2d at 1500; Plummer v. W. Int'l 13 Hotels Co., 656 F.2d 502, 505 (9th Cir. 1981). Noting that such determinations are a 14 highly probative evaluation of an individual's discrimination complaint, the court has held 15 that a "plaintiff has a right to introduce an EEOC probable cause determination in a Title 16 VII lawsuit" and that it is reversible error for a trial court to exclude the determination.2 17 Plummer, 656 F.2d at 505. 18 As noted above, there is a distinction between probable cause determinations and

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19 letters of violation. See Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500 (9th 20 Cir. 1986), where the court held that per se admissibility applies to EEOC probable cause 21 determinations but not to EEOC letters of violation. The court in Gilchrist reasoned that a 22 probable cause determination is a preliminary finding that there is reason to believe a 23 violation of Title VII occurred, and it does not suggest to the jury that the EEOC has 24 already determined that there has been a violation; therefore, the potential prejudicial 25 26 Note that the Arizona Supreme Court has rejected the Ninth Circuit's per se rule for cases 27 brought in state court, holding instead that the admissibility of an EEOC determination letter must be resolved by reference to the Arizona Rules of Evidence. Shotwell v. 28 Donahoe, 207 Ariz. 287, 294, 85 P.3d 1045, 1052 (2004).
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1 impact does not outweigh the highly probative nature of the probable cause determination. 2 Id. A letter of violation, in contrast, represents a final ruling by the EEOC that a violation 3 has occurred, and it carries a greater possibility of unfair prejudice because "a jury may 4 find it difficult to evaluate independently evidence of [discrimination] after being informed 5 that the EEOC has already examined the evidence and found a violation." Id. Because the 6 probative value of a final ruling may not always outweigh the potential prejudicial impact, 7 the court held that the per se rule of Plummer does not apply and the trial court must 8 exercise its discretion under Fed. R. Evid. 403 to admit or exclude the evidence. Id. 9 The EEOC dismissal in the present case is analogous to a probable cause

10 determination and is, therefore, per se admissible. The Dismissal states that "based upon 11 its investigation, the EEOC is unable to conclude that the information obtained establishes
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12 violations of the statutes." This is the defense equivalent of a finding that, based upon 13 investigation, the EEOC finds probable cause to believe that a violation of Title VII has 14 occurred. Cf. Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1015 (9th Cir. 1999) 15 (dismissal from the Oregon Bureau of Labor and Industries stating that insufficient facts 16 exist to continue its investigation is final ruling). 17 Even if the dismissal is treated as a final agency ruling, it would still be admissible

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18 under Fed. R. Evid. 403, since the probative value of the EEOC dismissal outweighs its 19 possible prejudicial impact. Because the Dismissal was prepared by "professional 20 investigators on behalf of an impartial agency," Plummer, 656 F.2d at 505, it is highly 21 probative of Pappas' discrimination complaint. It is unlikely to be unfairly prejudicial 22 because it clearly states that the EEOC "does not certify that the respondent is in 23 compliance with the statutes," thereby indicating to the jury that the EEOC has not made 24 ruling one way or the other on the presence of a Title VII violation. Thus, the jury would 25 be unlikely to "find it difficult to evaluate independently" any evidence of discrimination 26 that is offered by the plaintiff. Gilchrist, 803 F.2d at 1500. Any prejudice would be cured 27 by a limiting instruction. See, e.g., id. at 1500-01 (stating that although the judge admitted 28 an EEOC letter of violation without engaging in the proper Rule 403 balancing, it was not
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1 reversible error because the judge instructed the jury that "you, the jury, and not the EEOC 2 are the sole judges of whether or not there was a violation"). 3 4 F. Ms. Williams May Testify Only about Ms. Pappas' Harassment.

The final issue that Defendant addresses in this Trial Brief pertains to the scope of

5 permissible testimony from witness Mary Williams. Plaintiff intends for Ms. Williams to 6 testify not just about her first-hand knowledge of what Plaintiff supposedly endured in the 7 workplace, but also about incidents that Ms. Williams experienced during her employment 8 with Defendant. 9 There are two reasons why this testimony from Ms. Williams should not be allowed.

10 First, that Ms. Williams was going to testify about her own allegations of sexual 11 harassment was never disclosed to JSB. Ms. Williams was only disclosed to testify about
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 the facts alleged at paragraph 12 of Plaintiff's First Amended Complaint. That paragraph 13 states: 14 By failing and refusing to investigate and take remedial action after learning of

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15 Pappas complaints, Mr. Beach and Mr. Bloom, acting on behalf of JSB, tolerated and 16 encouraged the harassment and misconduct of the three male co-workers . Once it became 17 clear that the harassment would not be stopped or discouraged, and as time went by, the 18 intensity and frequency of harassment increased to the point when it became intolerable to 19 Pappas. 20 That paragraph does not identify anything about Ms. William's allegations of sexual

21 harassment. It refers only to the harassment alleged by Ms. Pappas. There was no 22 notification to JSB that Ms. Williams was going to testify to anything else until the 23 supplement to the Rule 16 statement was prepared, just weeks before trial. When the court 24 instructed the parties to file a supplemental pretrial memorandum, it was not to add 25 material, but to streamline witnesses and exhibits. 26 After receiving the new description of testimony for Ms. Williams, as set forth in the

27 supplemental Rule 16 statement, counsel looked back to the First Amended Complaint, 28 because Plaintiff did most of her disclosure in that document. Paragraph 22 of the First
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1 Amended Complaint does set forth some allegations regarding Ms. Williams yet, Plaintiff 2 never disclosed to JSB that Ms. Williams was going to testify re: these allegations until the 3 supplemental pretrial memorandum was exchanged. 4 Paragraph 22 of the First Amended Complaint, states "...Ms. Williams was

5 subjected to very similar hostile environment harassment and misconduct because of her 6 gender, Ms. Williams complained about such hostile environment to her superiors at JSB, 7 and JSB failed and refused to investigate or remedy her complaints of sex discrimination." 8 JSB has not been informed of the manner in which the incidents are similar, who the 9 alleged perpetrator was, or to whom Ms. Williams allegedly complained. 10 Because this testimony was never properly set forth in the pretrial memorandum,

11 pursuant to the case law under Fed. R. Civ. P. 16, it may not be admitted. Johnson v.
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

th 12 Mommoth Recreations, Inc., 975 F 2d 604 (9 Cir. 1992). This is evidence that is

13 extremely prejudicial to JSB. JSB has not had the opportunity to depose Ms. Williams 14 regarding these issues, investigated the as-yet undisclosed incidents she will testify to, and 15 depose the as-yet unidentified perpetrator. It is simply too late to add important witness 16 testimony days before trial. 17 Secondly, in addition to the procedural basis for the exclusion of this testimony is

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18 the substantive reason; it is not relevant to any issue in dispute, is overly prejudicial and is 19 violative of Fed.R.Evid. 404(b). 20 Pursuant to Rule 404(b) of the Federal Rules of Evidence, "Evidence of other

21 crimes, wrongs, or acts is not admissible to prove the character of a person in order to show 22 action in conformity therewith." Therefore, Ms. Williams' testimony about these

23 undisclosed incidents cannot be admitted to show that a JSB employee probably behaved in 24 the same manner with respect to Ms. Pappas. The rule specifically prohibits such evidence. 25 Prior acts are relevant, on the other hand, to show motive and such testimony has

26 been permitted in quid pro quo cases where motive is an element the employee must prove
th 27 in order to prevail. Heyne v. Caruso, 69 F.3d 1475 (9 Cir. 1995). But, the present case is

28 not a quid pro quo case; it is a hostile environment case. Motive is not an element of this
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1 negligence based claim. 2 Other cases have permitted testimony of harassment suffered by co-workers when

3 the plaintiff is attempting to prove retaliation, as in Hawkins v. Hennepin Technical Center,
th 4 900 F.2d 153 (8 Cir. 1990).

The court found such evidence to be relevant to the

5 employer's motive in taking the employment action it did against that plaintiff. Here, there 6 is no retaliation claim. 7 admitted. 8 Evidence of a person's character is simply not admissible to show that JSB Therefore, Rule 404(b) does not permit the testimony to be

9 employees were likely to have engaged in the conduct of which Ms. Pappas accuses them. 10 Rule 404(b) precludes this type of evidence as non-probative and overly prejudicial. Prior 11 acts evidence is only relevant to establish a specific list of items, none of which are present
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 here. 13 Therefore, to the extent that Ms. Williams is offered to testify about her own

14 allegations of wrongful treatment, JSB respectfully requests that such testimony be 15 precluded. 16 17 18 19 20 21 22 23 24 25 26 27 28
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DATED this 16th day of June, 2006. SACKS TIERNEY P.A. By: s/ Sharon S. Moyer Sharon S. Moyer

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1 2

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 16, 2006, I electronically transmitted the

3 attached document to the Clerk's Office using the CM/ECF System for filing and 4 transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: 5 6 7 8 9 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

David C. Larkin, Esq. DAVID C. LARKIN, P.C. 4645 S. Lakeshore Drive, Suite 6 Tempe, Arizona 85282 William P. Allen, Esq. ALLEN LAW FIRM, LLC 1650 N. First Avenue Phoenix, Arizona 85003 Attorneys for Plaintiff s/ Sharon S. Moyer Sharon S. Moyer

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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