Free Response in Opposition to Motion - District Court of Arizona - Arizona

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

J. Mark Ogden; AZ Bar No. 017018 J. Greg Coulter; AZ Bar No. 016890 Kristin R. Culbertson; AZ Bar No. 020801 LITTLER MENDELSON A Professional Corporation Camelback Esplanade 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Facsimile: 602.957.1801 E-mail: [email protected] [email protected] [email protected] Attorneys for Defendant Connecticut General Life Insurance Company UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, Plaintiff, v. Connecticut General Life Insurance Company, Defendant. I. INTRODUCTION On December 7, 2005, Defendant CGLIC ("CGLIC") filed its Reply to Plaintiff EEOC's Response to Defendant's Motion for Summary Judgment, which cited to the relevant portion of the required standard Five-In-One posting (the "posting"), and attached the posting as Exhibit 16. The EEOC filed the pending Motion to Strike the posting on December 7, 2005. The EEOC claims that CGLIC did not disclose the posting during discovery, and that this failure to disclose warrants striking it from the record. To the contrary, CGLIC complied with the spirit and letter of Rule 26(e) of the Federal Rules of Civil Procedure in making the existence and location of the posting known to the EEOC during the course of discovery. CGLIC's failure to disclose the actual posting, which is a Case No. CIV-04 0627 PHX JAT RESPONSE TO PLAINTIFF'S MOTION TO STRIKE UNDISCLOSED EXHIBIT

Case 2:04-cv-00627-JAT

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

standard posting required at all places of employment, mandated by the EEOC, is substantially justified and harmless. Therefore, the EEOC's Motion to Strike should be denied. II. FACTS On March 30, 2004, the EEOC filed the pending Complaint as a result of a charge of discrimination filed by Ms. Santa Cruz. The Complaint contains one cause of action: sex discrimination, in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e2(a). More specifically, the EEOC maintains that CGLIC discriminated against Ms. Santa Cruz because she was pregnant. The EEOC alleges "Defendants offered Ms. Santa Cruz a position as a customer service associate, but withdrew the offer upon learning she was pregnant." In its Answer, CGLIC admits that it offered Ms. Santa Cruz a position, but denies that the offer was withdrawn. On September 16, 2005, CGLIC filed a Motion for Summary Judgment. The EEOC filed its Response on November 4, 2005, and CGLIC filed its Reply on November 22, 2005. III. LEGAL ARGUMENT The EEOC's argument in support of their Motion to Strike suggests that it is somehow surprised and/or prejudiced by the posting, because the actual hard copy of the posting was not listed in a disclosure statement. Rules 26(e)(1) and (2) of the Federal Rules of Civil Procedure both impose a duty to supplement discovery disclosures and responses only if "...the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P. 26(e)(1), (2). Thus, a party is not required to supplement its Rule 26(a)(1) disclosures or interrogatory responses if information is otherwise disclosed, such as during deposition testimony. Coleman v. Keebler Co., 997 F. Supp. 1102, 1107 (N.D. Ind. 1998). In Coleman, the court was presented with witnesses who were not disclosed in Rule 26(a)(1) disclosures or answers to interrogatories, but who were identified by one of defendant's witnesses during deposition questioning by plaintiff's counsel. Id. at 1106-08.
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These witnesses later submitted affidavits in conjunction with the plaintiff's response to the defendant's motion for summary judgment. Id. The court found that the disclosure of these witnesses during deposition testimony provided the defendant with sufficient notice of the identity of those individuals. Id. In that regard, the court stated that: ...[t]he duty to supplement imposed by Fed. R. Civ. P. 26(e)(1) does not require an application of form over substance. . . . In fact, both the Advisory Committee and leading commentators indicate that the incidental discovery, particularly during a deposition, of information ordinarily subject to supplementation satisfies the Rule 26(e)(1) duty as sufficiently as a formal filing.1 Coleman, 997 F. Supp. at 1107 (emphasis added); see also, 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil 2d § 2049.1 p. 604 (2d ed. 1994)("there is no need as a matter of form to submit a supplemental disclosure to include information already revealed by a witness in a deposition"). In declining to impose any sanction, the court found that the plaintiff "was substantially justified in believing that no further disclosure was required." Coleman, 997 F. Supp. at 1107. Here, Tiffanie Dillard, CGLIC's Director of Human Resources, testified extensively regarding the posting at CGLIC's Phoenix facility. (Dillard Deposition Excerpts attached hereto as Exhibit A). Q: A: Q: A: Q: A: Q:
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And you also referenced postings; right? Correct. What posting about equal employment opportunity do you have at the Phoenix Service Center? We have the required - - we have the required Five-InOne posting, Excuse me? We have the required Five-In-One posting. What's the Five-In-One?

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

The Advisory Committee notes to the 1993 Fed. R. Civ. P. Amendments for Rule 26(e)(1) provide further support, stating that there is "no obligation to provide supplemental or corrective information that has been otherwise made known to the parties in writing or during the discovery process, as when a witness not previously disclosed is identified during the taking of a depositions."

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

A: Q: A: Q: A: Q: A: Q: A: ... Q: A: Q: A: ... Q:

It's got the required documents that we have to post in the building. What's the equal employment opportunity component of the Five-In-One Posting? I think - - I have not looked at that recently to be able to recite what's on it. But it does have some. Yes, it does. Do you know what - - what do you mean by Five-In-One? It's five posters on one document. Where is that posting at the Phoenix Service Center? That Five-In-One is in the lunch room.

What's the size of the Five-in-One poster? I'm going to guess inches here. It may be two feet by three feet. This is a guesstimate. It's bigger than 8 ½ x 11 piece of paper? Yes.2

Does the Five-In-One poster have any information on who employees can contact if they believe they have been discriminated against? I believe it does reference the EEOC. The United States Equal Employment Opportunity Commission? Yes.

A: Q: A: ... Q:

Has the Five-In-One poster been up continuously since your arrival at the Phoenix Service Center in 2002?

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Ms. Dillard then compared the size of the posting to a framed poster on the wall of the EEOC's conference room. (Exh. A).

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

A: (Exh. A).

Yes.

Despite this testimony, in its Response to the Motion for Summary Judgment the EEOC suggests, in part, that no reasonable jury could conclude that CGLIC made reasonable efforts to comply with Title VII because "no evidence concerning the content of `five-inone' postings . . . was produced." (Resp. 13).3 In asserting this argument, the EEOC either misunderstands Ms. Dillard's testimony or declines to recognize its admissibility. Fed. R. Civ. P. 56. To clarify any misconception, CGLIC provided the posting as an Exhibit to its Reply. The EEOC was well aware that CGLIC had a posting, which included an EEO component located in the lunchroom, was the same posting mandated by the Government, was larger than 8-1/2" x 11", listed the EEOC's contact information, and was posted since at least 2002, prior to the close of discovery. (Exh. A). That knowledge complies with the requirements of Fed. R. Civ. P. 26(e). Moreover, the EEOC's suggestion in its Motion to Strike that it "did not have the opportunity to inquire why Defendant obtained the poster partially depicted in the exhibit, or whether [CGLIC] displayed the poster, and, if so, when, where, and under what circumstances" is simply incorrect. Not only did the EEOC have the opportunity, as

demonstrated above, it asked Ms. Dillard many of those very questions. IV. CONCLUSION Based on the foregoing CGLIC respectfully requests that this Court deny the EEOC's Motion to Strike. ... ...
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As addressed in CGLIC's Reply, Ms. Dillard's testimony is certainly sufficient to establish that the postings "content" includes an EEOC component, and that it is communicated to its employees via posting it in the lunchroom. Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 517 (9th Cir. 2000).

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

RESPECTFULLY submitted this 27th day of December, 2005.

s/ J. Greg Coulter J. Mark Ogden J. Greg Coulter Kristin R. Culbertson LITTLER MENDELSON, P.C. Attorneys for Defendant Connecticut General Life Insurance Company I hereby certify that 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, and mailed a copy of same to the following if non-registrants, this 27th day of December 2005: Mary Jo O'Neill C. Emanuel Smith Katherine J. Kruse Equal Employment Opportunity Commission Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, AZ 85012-9688 Attorneys for Plaintiff s/ ME Martin
Firmwide:80682212.1 042081.1007

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