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]) 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 OF UNEMPLOYMENT EARNINGS

Plaintiff Marcela Johnson anticipates that Defendant Charles Schwab & Co., Inc. (Schwab) will seek to introduce evidence regarding information from the Arizona Department of Economic Security regarding unemployment compensation collected by Ms. Johnson after Schwab fired her. This Circuit, however, precludes the admission of earnings from unemployment to be used to offset a plaintiff's claim for damages. See Kauffman v. Sidereal Corporation, 695 F.2d 343, 347 (9th Cir. 1983) (unemployment benefits received by successful plaintiff in an employment discrimination action are not offsets against a back pay award). In Kauffman, the Ninth Circuit held that unemployment compensation from a state fund supported by a tax on employers could not be used to offset the plaintiff's back pay award. Id. at 347. In reaching this conclusion, the Ninth Circuit relied on the United States Supreme Court's holding in National Labor Relations Board v. Gullett Gin Co., 340 U.S. 361, 364, 71 S.Ct. 337, 339-340 (1951). In Gullet Gin, the Supreme Court upheld the National Labor Relations Board's refusal to deduct unemployment benefits

Case 2:04-cv-00790-EHC

Document 133

Filed 03/31/2006

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from an employee's back pay award for discriminatory discharge. See Kauffman, 695 F.2d at 346, citing Gullet Gin. The Supreme Court held that consideration should not be given to collateral losses in framing an order to reimburse employees for their lost earnings and no consideration should given to collateral benefits that employees may have received. Id. The Ninth Circuit adopted the reasoning in Gullet Gin to apply to Title VII cases, stating: We find the reasoning of Gullett Gin persuasive because on another occasion the Supreme Court stated that the back pay provision of Title VII "was expressly modeled on the back pay provision of the National Labor Relations Act." Id. Because Schwab cannot offset Plaintiff's back pay award by amounts received from unemployment compensation, any evidence pertaining to those earnings should not be admissible at trial. DATED this 31st day of March, 2006. QUARLES & BRADY STREICH LANG LLP By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Attorneys for Plaintiff Marcela Johnson

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 Christopher Mason Michelle H. Ganz Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 2415 E. Camelback Road Suite 800 Phoenix, AZ 85016 A copy of this document was provided to the Honorable John W. Sedwick. s/ Dawn C. Valdivia
QBPHX\115637.00002\2001164.1

Case 2:04-cv-00790-EHC

Document 133 -2- Filed 03/31/2006

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