Free Uncategorized - District Court of Arizona - Arizona

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Quarles & Brady Streich Lang LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Lonnie J. Williams, Jr. (#005966) ([email protected]) Dawn C. Valdivia (#020715) ([email protected]) Luis F. Ramirez (#022653) ([email protected]) Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, v. Charles Schwab Corporation, Defendant. NO. CV 04-0790 PHX-JWS PLAINTIFF'S MOTION IN LIMINE RE: EVIDENCE NOT CONSIDERED BY THE DECISION MAKERS

Plaintiff Marcela Johnson ("Johnson") anticipates that Defendant Charles Schwab Corporation ("Schwab") will seek to introduce evidence that was not considered by the individuals who made the decision to terminate Ms. Johnson's employment. Ms. Johnson moves to exclude this evidence because it is not relevant and is substantially more prejudicial than probative. Fed. R. Evid. 401, 402, 403, 412. This motion is accompanied by the following memorandum of points and authorities. MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL BACKGROUND The material issues in this case are whether Schwab terminated Johnson in retaliation for protected activity (i.e. reporting incidents of unwelcome conduct by a male co-worker) and treated her differently because she is a Hispanic female. Schwab

contends that it terminated Johnson for fabricating a claim of sexual harassment. In firing Ms. Johnson, the decision makers, Tammy Kornegay-Hodges ("Hodges") and Cheri Melle ("Melle"), relied on certain "findings" that were made during Schwab's
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internal investigation into Johnson's statements. The findings upon which Mrs. Hodges relied are largely based on her subjective determination to credit another employee's statements about what Ms. Johnson had allegedly said to him as opposed to what Ms. Johnson had actually reported to Mrs. Hodges and Mrs. Melle. Ms. Johnson expects that Schwab will seek to introduce evidence, including witness testimony, e-mail correspondence, and documents, that were either not known or not considered by Mrs. Hodges or Mrs. Melle when deciding to terminate Ms. Johnson's employment with Schwab. The evidence to be excluded falls within one of two

categories: (1) evidence that was known but not considered by the decision makers at the time of the decision, and (2) evidence that was not known by the decision makers at that time of the decision. Such evidence is not admissible because it is irrelevant and unduly prejudicial. Fed. R. Evid. 401, 402, 403, 412. A. Evidence Known But Not Considered by the Decision Makers Is Irrelevant and Inadmissible.

Ms. Johnson anticipates that Schwab will seek to introduce evidence about a relationship between Ms. Johnson and Brad Allen, a former Schwab employee and coworker of Ms. Johnson. Schwab admits that although the relationship between Ms. Johnson and Mr. Allen did not factor into the decision to terminate Ms. Johnson's employment because Schwab did not have an anti-fraternization policy. Consequently, evidence of the relationship is not relevant to the basis of Ms. Johnson's claims, nor it relevant to Schwab's reasons for terminating Ms. Johnson. Fed. R. Evid. 401, 402. Moreover, introduction of such evidence will cause unfair prejudice to Ms. Johnson. Fed. R. Evid. 403. Finally, such evidence is precluded by Fed. R. Evid. 412 as improper evidence Ms. Johnson's sexual behavior. 1. The Relationship Is Not Relevant.

"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. The relationship
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between Ms. Johnson and Mr. Allen does not tend to prove that Ms. Johnson was terminated in retaliation for engaging in protected activity nor does it tend to prove that she was terminated for fabricating a claim of sexual harassment. Similarly, the evidence does not tend to prove that Ms. Johnson made inconsistent statements. Indeed, Mrs. Hodges' admits that even though she knew about the relationship, she did not consider that information in making her recommendation to terminate Ms. Johnson because Schwab does not have an anti-fraternization policy. irrelevant and should be excluded on that basis alone. Schwab will likely argue that the evidence is relevant to show that Ms. Johnson fabricated a claim against Mr. Steinert because she and Mr. Allen suspected that Mr. Steinert had called Mr. Allen's wife to reveal their relationship. However, evidence that she and Mr. Allen suspected Mr. Steinert for calling Mr. Allen's wife was not discovered until almost one year after Mrs. Johnson's termination, and, thus could not have been relied on by the decision makers. Consequently, Schwab cannot rely on this later Accordingly, the evidence is

acquired evidence to support its reasons for terminating Ms. Johnson. See infra., Section II(A)(1). 2. Evidence of the Relationship is More Prejudicial than Probative.

Even if this Court determines that the relationship is relevant, which it is not, it should still be excluded because its prejudicial value substantially outweighs the danger of unfair prejudice. Fed. R. Evid. 403. Unfair prejudice within the context of Rule 403 means an undue tendency to suggest a decision on an improper basis, such as an emotional one. Id. Advisory Committee notes 1972. The fact that Ms. Johnson was engaged in an extra marital affair with a former co-worker during their employment at Schwab could easily prejudice the jury to render a decision on an improper basis, such as emotions or moral judgment. 3. Evidence of the Relationship is Barred by Fed. R. Evid. 412.

Finally, such evidence is precluded by Fed. R. Evid. 412. In an action for sexual

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harassment, evidence of the alleged victim's non-workplace sexual behavior is generally irrelevant. Fed. R. Evid. 412, advisory committee notes to 1994 amendments. See also B.K.B. v. Maui Police Dep't., 276 F.3d 1091, 1105 (9th Cir. 2002) (probative value of evidence of a harassment victim's private sexual behavior does not substantially outweigh the prejudice to her.); Barta V. City and County of Honolulu, 169 F.R.D. 132, 135 (D. Haw. 1996) (precluding discovery into non-workplace, off-duty sexual contact); Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 856 (1st Cir. 1998) (trial court did not abuse discretion in ruling that evidence concerning sexual-harassment plaintiff's moral character and promiscuity was inadmissible under Rule 412). The commentary to Rule 412 explains the balancing test regarding the admissibility of such evidence: [the balancing test] differs in three respects from the general rule governing admissibility set forth in Rule 403. First, it Reverses [sic] the usual procedure spelled out in Rule 403 by shifting the burden to the proponent to demonstrate admissibility rather than making the opponent justify exclusion of the evidence. Second, the standard expressed in subdivision (b)(2) is more stringent than in the original rule; it raises the threshold for admission by requiring that the probative value of the evidence substantially outweigh the specified dangers. Finally, the Rule 412 test puts 'harm to the victim' on the scale in addition to prejudice to the parties. Fed. R. Evid. 412 Advisory Committee notes to 1994 amendments (emphasis in original). Schwab cannot meet its burden to show that the evidence is admissible. Nor can Schwab show that the probative value of the relationship substantially outweighs the prejudicial value to Ms. Johnson and her former co-worker, who is not a party to this action and whom Ms. Johnson will not call as a witness. Finally, the harm suffered by Ms. Johnson if the evidence is allowed far outweighs any prejudice to Schwab if the evidence is excluded. Applying the balancing test to the facts in this case demonstrate that evidence of the relationship between Ms. Johnson and Mr. Allen is not admissible.
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B.

Evidence Not Known by the Decision Makers Is Not Relevant and Is Not Admissible.

To support its defense that Ms. Johnson was terminated for non-discriminatory reasons, Schwab attacks Ms. Johnson via her actions and behavior after Schwab fired her. It is axiomatic that any evidence discovered by Schwab after Ms. Johnson's

termination was not considered by the decision makers in reaching this conclusion. Consequently, such evidence is irrelevant and unduly prejudicial. Schwab cannot after the fact revise its purported reasons for disbelieving and firing Ms. Johnson and lend relevance to evidence that is otherwise improper under the Federal Rules of Evidence, 401, 402, 403, and 404. Although Ms. Johnson seeks to exclude all evidence not known and not considered by the decision makers at the time of her termination, she specifically moves to preclude all evidence referring to her suspicions regarding Mr. Steinhart, her performance at subsequent employers, the decision of the Administrative Law Judge ("ALJ") at the hearing before the National Labor Relations Board ("NLRB"), and any reference to her taking a polygraph test. 1. Evidence of Mrs. Johnson's Suspicions Should Be Excluded.

That Ms. Johnson suspected Ed Steinhart of making unrelated personal phone calls is not relevant to establishing that she fabricated allegations regarding his workplace behavior towards her and other female employees. In any event, Mrs. Hodges and Mrs. Melle did not consider this evidence when they concluded that Ms. Johnson had made inconsistent statements and decided to terminate her employment. As such, any evidence referring to Ms. Johnson's suspicions regarding Mr. Steinhart has no probative value and should be excluded under Fed. R. Evid. 403. Moreover, the referenced correspondence necessarily contains information about Ms. Johnson's relationship with Mr. Allen. This purported relationship is of a personal nature and is unrelated to any of the claims at issue in this matter. Schwab now seeks to use the communications to attack Ms. Johnson's character by insinuating an "improper"
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amorous relationship between Ms. Johnson and Mr. Allen. However, as previously stated, Schwab knew about, but did not consider this relationship when deciding to terminate Ms. Johnson's employment. See infra Section II(A)(1). Therefore, the

evidence should also be excluded under Fed. R. Evid. 403 and 404. 2. Ms. Johnson's Subsequent Employment.

Schwab relies on Ms. Johnson's post-Schwab employment record, documents, and testimony from her subsequent employers in hopes that this evidence will paint Ms. Johnson in a bad light. Such evidence is irrelevant, unduly prejudicial, and expressly prohibited by Rules 402, 403, and 404, Fed. R. Evid. Neither Ms. Johnson's work performance after she was terminated from Schwab nor the impressions of her subsequent employers bear any relevance to whether Ms. Johnson engaged in protected activity or whether Schwab relied upon a legitimate, nondiscriminatory basis for firing her. Thus, Schwab should be limited to introducing

evidence that is relevant to Ms. Johnson's mitigation of damages, such as her dates of employment, salary, and benefit information. Anything beyond is not relevant and only serves to prejudice the fact finder. It bears repeating that the issue in this case is whether Ms. Johnson was improperly terminated from her employment at Schwab for engaging in protective activity. The only relevant and admissible evidence is that which existed at the time Ms. Johnson made her report and upon which Schwab relied when terminating her employment. Any other rule would inject irrelevant and prejudicial evidence into trial in violation of the Rules of Evidence, and in direct contradiction to the protections against retaliation afforded by Title VII. Schwab's attempt to justify its decision to terminate Ms. Johnson by attacking her performance at subsequent jobs improperly diverts the focus of the retaliation claim from the focal issue, the appropriateness of Schwab's motivation at the time it took the action. See Miller v. Fairchild Industries, 885 F.2d 498, 504 (9th Cir. 1989) (the trier of fact must determine whether the employer was motivated

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by a discriminatory reason at the time it took action). By introducing evidence of Ms. Johnson's subsequent employment, Schwab seeks to make Ms. Johnson's retaliation claim hinge on her successes and failures after she was terminated. Such slight of hand effectively undoes the protections afforded by 42 U.S.C. § 2000c-3(a). Moreover, employee complaints would be chilled by leaving employees vulnerable to embarrassing and annoying invasions of privacy at the hands of former employers seeking to find ex post facto justification for their actions. Therefore, any evidence pertaining to Ms. Johnson's subsequent employment should be excluded. 3. The ALJ's Decision

Schwab will likely seek to introduce the ALJ's decision and findings to attack Ms. Johnson's credibility. Such evidence is, however, not relevant, more prejudicial than probative, and hearsay. The evidence and issues before the ALJ were different that those before the jury. See Plaintiff's Response to Defendant's Motion for Partial Summary Judgment on Counts II Through V Based on Collateral Estoppel at Dkt. 15. Additionally, the ALJ's decision concluding that Ms. Johnson did not engage in protected activity as defined by the National Labor Relations Act, 29 U.S.C. § 151, et seq., has great potential for prejudicial impact on the jury in determining whether Ms. Johnson engaged in activity protected under Title VII. A jury could find that the ALJ's findings were correct and adopt those findings in rendering its decision. Because the prejudicial value far outweighs the probative value, the decision of the ALJ should be excluded under Rule 403, Fed. R. Evid. Finally, the document is inadmissible hearsay and should be precluded on those grounds. 4. Polygraph Test

Schwab has subpoenaed and likely intends to use polygraph tests results pertaining to Ms. Johnson's application with the City of Phoenix Police Department to attack Ms. Johnson's character. Schwab's intended use of an unrelated polygraph test again

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distracts from the appropriateness of Schwab's response to Ms. Johnson's report and attacks her actions after she was fired from Schwab. Ms. Johnson's purported

dishonesty, if any, concerning a job application for a different employer is irrelevant to whether she fabricated a claim of sexual harassment at Schwab 2 years earlier. The polygraph evidence is being offered instead as evidence of Ms. Johnson's character and to prove action in conformity therewith. As such, it is prejudicial character evidence which is inadmissible under Rules 403 and 404, Fed. R. Evid. Moreover, polygraph results to establish credibility, or lack thereof, are generally not admissible in this Circuit absent stipulation. See U.S. v. Ramirez-Robles, 386 F.3d 1234 (9th Cir. 2004); Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002); U.S. v. Campos, 217 F.3d 707 (9th Cir. 2000); U.S. v. Benavidez-Benavidez, 217 F.3d 720 (9th Cir. 2000); U.S. v. Cordoba, 194 F.3d 1053 (9th Cir. 1999); U.S. v. Orians, 9 F.Supp.2d 1168 (D.Ariz. 1998). III. Conclusion.

For the abovementioned reasons the Court should exclude all: (1) evidence that was known to the decision makers but not relied upon in making the decision to terminate Ms. Johnson's employment, including the relationship between Ms. Johnson and Mr. Allen; (2) e-mail correspondence, witness testimony, and other evidence of which the decision makers were unaware and, consequently, did not consider when deciding to fire Ms. Johnson, including evidence relating to Ms. Johnson's subsequent employment and the decision of the ALJ. RESPECTFULLY SUBMITTED this 31st day of March, 2006. QUARLES & BRADY STREICH LANG LLP By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Luis F. Ramirez Attorneys for Plaintiff Marcela Johnson

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I hereby certify that on March 31, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic filing to the following CM/ECF registrants:

Joseph T. Clees
Karen Gillen Michelle Ganz Ogletree, Deakins, Nash, Smoak & Stewart, P.C. A copy of this document was provided to The Honorable John W. Sedwick s/Dawn C. Valdivia

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