Free Trial Brief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

David C. Larkin #006644 DAVID C. LARKIN, P.C. 4645 South Lakeshore Drive, Suite 6 Tempe, Arizona 85282 Telephone (480) 491-2900 Fax (480) 755-4825 William P. Allen #011161 ALLEN LAW FIRM, LLC 1650 North First Avenue Phoenix, Arizona 85003 Telephone (602) 495-6502 Fax (602) 277-9839 Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Connie B. Pappas, Plaintiff, vs. J.S.B. Holdings, Inc., d.b.a. R&D Specialty/Manco, Defendant. Plaintiff submits her trial brief on the following issues of law: (1) Can gender-neutral conduct support a Title VII claim for unlawful sexual harassment? (2) Are bureaucratic records contained in the EEOC's administrative file of Mrs. Pappas' charge of discrimination admissible at trial? (3) Is Defendant's asserted affirmative defense based on "after-acquired evidence" untimely and unduly prejudicial? (4) Is the decision of the Arizona Department of Economic Security Appeals Tribunal finding Mrs. Pappas was constructively discharged admissible at trial? (5) Does a "collateral source rule" require exclusion of evidence of receipt of unemployment compensation by Mrs. Pappas? (6) What is the legal standard for punitive damages in a Title VII action? PLAINTIFF'S TRIAL BRIEF No. CV-03-1449-PHX-PGR

Case 2:03-cv-01449-PGR

Document 93

Filed 06/16/2006

Page 1 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1.

Unlawful Gender Harassment Can Be Established Without Sex-Specific Acts Title VII of the Civil Rights Act of 1964 provides that it is an unlawful employment

practice for an employer "to discriminate against any individual with respect to...terms, conditions, or privileges or employment, because of such individual's...sex." 42 U.S.C. 2000e-2(a)(1). The phrase "terms, conditions, or privileges of employment" evidences a congressional intent "to strike at the entire spectrum of disparate treatment of men and women in employment," which includes requiring people to work in a discriminatory hostile or abusive environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 62 (1986). When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Systems, Inc, 502 U.S. 17 (1993). "Harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. Id. at 81. The ultimate question in a gender harassment case "is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other are not exposed." E.E.O.C. v. National Education Association, Alaska, 422 F.3d 840, 844 (9th Cir. 2005). In that case the alleged unlawful harassment included "shouting, screaming, foul language, invading employees' personal space,...and threatening physical gestures" which were not gender specific. Id. at 844. The Court found, however, that while gender specific words or deeds could establish discriminatory harassment, evidence of differential, albeit gender-neutral, treatment of men and women could also establish a violation of Title VII. Id. -2-

Case 2:03-cv-01449-PGR

Document 93

Filed 06/16/2006

Page 2 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In this case, evidence of gender-specific epithets will be presented along with evidence of severe and pervasive (but gender neutral) harassment. Both types of behavior contributed to the unlawful hostile work environment Plaintiff endured. As one court has explained, Facially neutral abusive conduct can support a finding of gender animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly gender-discriminatory conduct. (citation omitted.) This is because what is important in a hostile environment claim is the environment, and gender-neutral harassment makes up an important part of the relevant work environment. Conduct that appears gender-neutral in isolation may in fact be gender-based, but may appear so only when viewed in the context of other gender based behavior. Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005). Moreover, Plaintiff is not required to prove that her co-workers "had a specific intent to discriminate against women or to target them `as women'...." E.E.O.C. v. Nat'l Edu. Assoc. Alaska, supra at 844. As the Ninth Circuit reiterated there, "Title VII is not a faultbased tort scheme [but instead] is aimed at the consequences or effects of an employment practice and not at the motivation of co-workers or employers." Id., quoting Ellison v. Brady, 924 F.2d 872, 880 (9th Cir. 1991). Where co-workers are more comfortable bullying a woman, as is the case here, such a motive is because of sex within the meaning of Title VII. E.E.O.C. v. Nat'l. Edu. Assoc. Alaska, supra at 845. // // // // // // // // // -3-

Case 2:03-cv-01449-PGR

Document 93

Filed 06/16/2006

Page 3 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2.

EEOC Administrative Documents Should Not Be Admitted At Trial Defendant's Exhibits 31, 32, and 33 are documents from Ms. Pappas's EEOC file.1

[See attached Defendant's Trial Exhibits List revised and renumbered pursuant to the Court's Exhibit Marking Instructions]. Exhibit 31 is an April 11, 2003 cover letter from the EEOC stating it has dismissed her charge of discrimination without a finding on the merits and explaining her suit rights. Exhibit 32 is another cover letter dated April 27, 2003 enclosed with a copy of her file in which the EEOC states that the "case was closed without opposition." Exhibit 33 is a "Dismissal and Notice of Rights" form, and this document has a box checked containing the following statement: The EEOC issues the following determination: Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge. All of these documents are simply bureaucratic records and none contain any findings of fact or law based on a hearing before a neutral finder of fact. Indeed, the August 27, 2003 cover letter regarding dismissal of the charge states expressly that "This dismissal is not a statement of the merits of your case." The August 27, 2003 "EEOC Dismissal and Notice of Rights" and cover letter regarding Dismissal of Claim are not relevant and would be unfairly prejudicial if they were admitted. In Beachy v. Boise Cascade Corporation, 191 F.3d 1010 (9th Cir. 1999), the Ninth Circuit held as follows:

1

Plaintiff has also made objections to other EEOC documents, Defendant's Exhibits 27, 28, 29, 34, and 35. See attached Defendant's Renumbered Exhibit List with Objections. Plaintiff objects that these Exhibits are inadmissible pursuant to the Federal Rules of Evidence, Rule 402 (not relevant, EEOC proceedings are jurisdictional only), Rule 403 (cumulative, prejudicial, other claims alleged not to be tried may be confusing to jury because Defendant has not alleged that plaintiff failed to exhaust administrative remedies) and Rule 802 (the documents are hearsay). -4-

Case 2:03-cv-01449-PGR

Document 93

Filed 06/16/2006

Page 4 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

We now hold that an agency's determination that insufficient facts exist to continue an investigation is not per se admissible in the same manner as an agency's determination of probable cause. Whereas the latter type of determination indicates only that there is probable cause to believe a violation has occurred, the former type of determination in effect constitutes a finding of no probable cause and terminates the agency's inquiry. In this sense, a determination of insufficient facts is a final ruling by the agency. There is a much greater risk of unfair prejudice involved in introducing a final agency ruling as opposed to a probable cause determination, because a jury might find it difficult to evaluate independently evidence of discrimination after being informed of the investigating agency's final results. Id. at 1015 (citation omitted and emphasis added). Accordingly, the Court should exclude Defendant's Trial Exhibits 31, 32, and 33 pursuant to FRE 402 and 403.

3.

The Affirmative Defense Of "After-Acquired Evidence Cannot Be Raised Less Than One Month Prior to Trial. Defendant filed its untimely answer to Mrs. Pappas' First Amended Complaint on

June 1, 2006, which, for the first time in this action, asserted an affirmative defense seeking a limitation on damages based on "after-acquired evidence" of alleged misconduct by Mrs. Pappas.2 Defendant never disclosed its intention to raise this defense prior to this filing. Accordingly, Plaintiff requests that defendant be precluded from examining witnesses regarding any misconduct which it may claim was evidence acquired after Ms. Pappas's employment terminated which would warrant a limitation on her recovery of damages. This issue was not included in the parties' Joint Pretrial Statement. Defendant has not requested a jury instruction on the "after-acquired" evidence affirmative defense. Because this defense was not disclosed until less than a month before trial, Plaintiff had no

2

"After acquired evidence of employee wrongdoing bears on the specific remedy to be ordered." McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, neither reinstatement nor front pay is an appropriate remedy, and backpay is limited up to the date the misconduct was discovered. Id. at. 362. Where an employer seeks to rely upon afteracquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge. Id. -5-

Case 2:03-cv-01449-PGR

Document 93

Filed 06/16/2006

Page 5 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

opportunity to conduct discovery on the issue. Further, defendant failed to Answer the First Amended Complaint and assert its affirmative defenses in April 2004 as required by FRCP 15(a), instead filing its answer just before trial over two years late. Evidence on this defense is not relevant to the claims at issue in this action. Therefore, any questions on the subject are irrelevant and inadmissible, Rule 402, F.R.E. and prejudicial, Rule 403, F.R.E. The Court should preclude evidence at trial regarding the untimely disclosed affirmative defense which was not disclosed an issue in the Joint Pretrial Statement filed by the parties prior to the May 8, 2006 Pretrial Conference. See Simon v. Shearson Lehman Bros.Inc., 895 F.2d 1304, 1313 (11th Cir. 1990) (holding that trial court did not abuse discretion by excluding defense which was not disclosed in answer, in Pre-trial Order, or during discovery).

4.

The Arizona DES Appeal Tribunal Decision Is Both Probative and Admissible.

Defendant moved in limine to exclude the use of the Arizona DES Appeal Tribunal's finding of constructive discharge (Plaintiff's Exhibit 10), and Mrs. Pappas' response to that motion is incorporated by reference. As noted therein, the Arizona statute relied upon by Defendant created state law rule of evidence which is not binding in federal actions. See e.g., Agster v. Maricopa County, 422 F.3d 836 (9th Cir. 2005). Moreover, the Ninth Circuit has taken judicial notice that the contents of California Unemployment Insurance Appeals Board decisions "as proof that there could exist some substantial evidence" that employees were discharged for misconduct rather than union activities. Salinas Valley Broadcasting Corp. v. N.L.R.B. 334 F.2d 604 (9th Cir. 1964). Also, in a case similar to this matter, a California district court admitted an Unemployment Compensation Appeal Board decision despite the fact that California has a statute identical to Arizona's excluding its use "in any proceeding." Baldwin v. Rice, 144

-6Case 2:03-cv-01449-PGR Document 93 Filed 06/16/2006 Page 6 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

F.R.D. 102 (E.D. Cal 1992). In that Title VII race discrimination case, the plaintiff sought to introduce an administrative law judge's unemployment compensation decision over the defendant's objection. Id. at 103. The court admitted the decision because (1) "a Title VII plaintiff has a difficult burden [of proof, and therefore] . . . should not be deprived of potentially persuasive evidence", (2) the decision was based on a contested hearing on the record before a neutral finder of fact, and (3) the decision was offered as "potential, substantial evidence" and not for the purpose of collateral estoppel. Id. at 105-06. Accordingly, the court found the ALJ's decision admissible despite the prohibitions of Section 1960 of the California Unemployment Ins. Code.3 Here, the same factors support admissibility of the DES Appeals Tribunal decision. This is a Title VII action, the Tribunal decision was based on a contested hearing during which both sides examined and cross examined multiple witnesses, and Mrs. Pappas does not contend that the decision has preclusive effect or is otherwise binding on the jury. Most importantly, the decision goes directly to the contested issue of whether Mrs. Pappas' working conditions were so intolerable that she was forced to resign. The decision of the DES Appeal Tribunal, Plaintiff's Exhibit 10, should be admitted into evidence at trial. // // // // //

3

Section 1960 states: "Any finding of fact or law, judgment, conclusion, or final order made by any hearing officer...shall not be used as evidence in any separate or subsequent action or proceeding between an individual and his present or prior employer brought before an arbitrator, court, judge of this state or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts." -7-

Case 2:03-cv-01449-PGR

Document 93

Filed 06/16/2006

Page 7 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

5.

The Jury Should Be Instructed Not To Consider Benefits Received As Unemployment Compensation When Awarding Damages For Backpay. "Unemployment benefits received by a successful plaintiff in an employment

discrimination action are not offsets against a backpay award." Kaufmann v. Sidereal Corp., 695 F.2d 343 (9th Cir. 1982). Both parties in this case are expected to refer to Mrs. Pappas' unemployment compensation hearing during trial, and the jury may reasonably assume that she received unemployment benefits. Accordingly, Plaintiff requests that the jury be instructed that, whether or not Mrs. Pappas received unemployment compensation, such benefits may not be considered in calculating a backpay award or other damages. Plaintiff has included this instruction in her previously filed "Plaintiff's Requested Jury Instruction No. 1." 6. The Legal Standard for Punitive Damages In A Title VII Action The Supreme Court analyzed and interpreted that portion of 42 U.S.C. § 1981a that permits an award of punitive damages against an employer who has intentionally discriminated with malice or with reckless indifference to a claimant's federally protected rights in Kolstad v. American Dental Association, 527 U.S. 526 (1999). In so doing, the Court rejected the lower court's ruling that proof of "egregious" conduct by the employer was necessary for a Title VII punitive damage award. Instead, a plaintiff must "identify facts sufficient to support an inference that the requisite mental state [i.e. malice or reckless indifference to a claimants federally protected rights] can be imputed to the employer." Id. 527 U.S. at 546.4

4

25 26 27 28

The Court identified three instances where an employer may lack the requisite mental state necessary for the imposition of a punitive damage award: (1) the plaintiff's theory of discrimination was so novel or poorly recognized that the employer reasonably believed its actions were legal; (2) the employer reasonably believed its discrimination was permitted by a statutory exception to liability; or (3) the employer was unaware of the relevant federal prohibition. Id. 527 U.S. at 536-36. -8-

Case 2:03-cv-01449-PGR

Document 93

Filed 06/16/2006

Page 8 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

However, in the context of punitive damages, an employer will not be vicariously liable for the acts of its employees if it has made good faith efforts to comply with Title VII's prohibitions against discrimination and harassment. Recognizing Title VII as an effort to promote prevention as well as remediation, and observing the very principles underlying the Restatements' strict limits on vicarious liability for punitive damages, we agree that, in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's "good-faith efforts" to comply with Title VII. Id. 527 U.S. at 545. Evidence of an employer's "good faith efforts" may include adoption and enforcement of policies prohibiting unlawful discrimination and harassment, establishing effective grievance procedures, and educating employees on Title VII's prohibitions. Id. Respectfully submitted this 16th day of June, 2006. DAVID C. LARKIN, P.C. By: /s David C. Larkin David C. Larkin and ALLEN LAW FIRM, LLC By: /s William P. Allen William P. Allen Attorneys for Plaintiff Electronic notice and service of documents provided to: Sharon S. Moyer No. 013341 Mark D. Dillon No. 014393 SACKS TIERNEY P.A. 4250 N. Drinkwater Blvd., 4th Floor Scottsdale, AZ 85251-3693 Attorneys for Defendants /s David C. Larkin

-9-

Case 2:03-cv-01449-PGR

Document 93

Filed 06/16/2006

Page 9 of 9