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

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Stephen G. Montoya (#011791) MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Monica Ortega-Guerin, plaintiff, vs.

No. CIV 04-0289-PHX-MHM

Plaintiffs' Response to Defendant's Motion for a New Trial or in the City of Phoenix, Frank Favela, and Frank Alternative, for Remittitur Peralta, (Oral Argument Requested) defendants. Plaintiff hereby responds to Defendants' Motion for a New Trial, or in the Alternative, for Remittitur, and asks that the Motion be denied because substantial evidence supports both the jury's finding of liability in favor of Plaintiff and the respective amounts of compensatory and punitive damages the jury awarded to Plaintiff against Defendants. The Response is supported by the following Memorandum of Points and Authorities and the entire record in this matter. Dated the 25th day of January 2006. MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiffs

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MEMORANDUM OF POINTS AND AUTHORITIES Defendants' Motion for a New Trial merely rehashes the same contentions already considered and rejected by the jury and the Court at trial: namely, that Ms. Ortega-Guerin adduced insufficient evidence in support of her claims for compensatory and punitive damages. The Court should deny the Motion for the same reasons that it articulated when it previously rejected Defendants' contentions at trial: namely, substantial evidence supported Ms. Ortega-Guerin's claims for compensatory and punitive damages against Defendants. Specifically, for well over a year, Frank Peralta subjected Ms. Ortega-Guerin to chronic verbal sexual harassment and repeated acts of physical sexual harassment that actually left bruises on her upper arms and thighs. To make matters worse, both of Ms. Ortega-Guerin's direct supervisors at the City­Frank Favela and Jim Sterne­personally witnessed the harassment but did nothing to assure that it would stop. Indeed, on at least two occasions, Frank Favela actually covered his eyes to the harassment and hence virtually guaranteed that it would continue. As a result of the harassment, Ms. Ortega-Guerin's hair started to fall out and she suffered from depression, sleeplessness, anxiety, and fear. Ms. Ortega-Guerin ultimately missed weeks of work, was forced to seek medical treatment, and was prescribed two medications to treat her condition. Based on these facts, there is no basis for a remittitur because the jury's awards of compensatory and punitive damages in favor of Ms. Ortega-Guerin were more than justified by the evidence adduced at trial. A. The jury's compensatory damage awards to Ms. Ortega-Guerin are supported by the evidence.

The bulk of the City's Motion for a New Trial is devoted to the assertion that the jury's verdict of $850,000.00 in compensatory damages in favor of Ms. Ortega-Guerin is "excessive in light of [Ms. Ortega-Guerin's] minimal and largely uncorroborated evidence of compensatory damages." See Defendants' Motion for a New Trial, p. 1, lines 19-21.

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Notwithstanding Defendants' assertions, as demonstrated below, the Ninth Circuit has recently affirmed awards of compensatory damages that have exceeded $850,000.00 based on evidence less compelling that the evidence than Ms. Ortega-Guerin marshaled in this case.1 For example, in Passantino v. Johnson & Johnson Consumer Products, Inc., 12 F.3d 493, 513 (9th Cir. 2000), the Ninth Circuit affirmed a verdict of $1,000,000.00 in compensatory damages for emotional distress in a retaliation case based only upon testimony that the plaintiff in question suffered from depression and "experienced substantial anxiety as a result of her sense that she could no longer advance within the company" based on retaliation. Id. In Passantino, the Ninth Circuit also expressly rejected the theory that "emotional damages awards must be supported by some kind of 'objective' evidence," and concluded that "while objective evidence requirements may exist in other circuits, such a requirement is not imposed by case law in either . . . the Ninth Circuit or the Supreme Court." Id. (Emphasis added.) Moreover­unlike Ms. Ortega-Guerin­the plaintiff in Passantino did not seek or receive any medical treatment, was not prescribed any medication, was not repeatedly physically assaulted by her harasser, and was not literally bruised as a result of the harassment. In light of these facts, the Passantino case clearly demonstrates that Ms. Ortega-Guerin was entitled to (at least) $850,000.00 in compensatory damages.

Defendants claim that there is a "paucity" of cases from the Ninth Circuit considering the issue of compensatory damages. See Defendants' Motion for a New Trial, p. 3, n.1, lines 24-25. However, in fact there are several, recent Ninth Circuit decisions upholding significant awards of compensatory damages for emotional distress in discrimination cases. The only Ninth Circuit case cited by the Defendants regarding this issue, Passantino v. Johnson & Johnson Consumer Products, Inc., 12 F.3d 493 (9th Cir. 2000), rules squarely against Defendants and in favor of Ms. Ortega-Guerin. Of course, this Court is bound by Ninth Circuit precedent, not the dated (most are over twenty-years old) authorities from other jurisdictions cited by the Defendants. -3-

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Similarly, in Bell v. Clackamas County, 341 F.3d 858, 865 (9th Cir. 2003), the Ninth Circuit affirmed a jury verdict of compensatory damages in the amount of $750,000.00 for emotional distress in a racial discrimination case and noted that: We can overturn the jury's verdict only if there is no legally sufficient basis for a reasonable jury to find in favor of Bell. . . . We may not make credibility determinations and must draw all inferences in Bell's favor, disregarding all evidence favorable to the defendants that the jury was not required to believe. (Emphasis added.) Significantly­unlike Ms. Ortega-Guerin­the plaintiff in Bell was not subjected to any physical harassment and hence was not physically bruised by the harassment. Likewise, in Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020, 1039, 1040 (9th Cir. 2003), the Ninth Circuit affirmed a jury verdict of $223,155.00 for emotional distress in a discrimination case and concluded that: Although the appellants argue that emotional distress damages must be supported by substantial evidence, they cite no Ninth Circuit caselaw to support this proposition, instead relying on the Fourth Circuit case Price v. City of Charlotte, 93 F.3d 1241, 1251 (4th Cir.1996). The holding of Price that "the evidence of the emotional distress must be demonstrable, genuine, and adequately explained," id. at 1251, is not the law of this Circuit . . . . Zhang's testimony alone is enough to substantiate the jury's award of emotional distress damages. Furthermore­like the plaintiff in Passantino, but unlike Ms. Ortega-Guerin­the plaintiff in Zhang did not seek or receive any medical treatment, was not prescribed any medication, and was not physically assaulted or injured by his harasser. Finally, in Pavon v. Swift Transportation Co., Inc., 192 F.3d 902, 906 (9th Cir. 1999), the Ninth Circuit affirmed an award of $250,000.00 in compensatory damages for emotional distress in a racial discrimination case asserted by an employee who was verbally harassed by his supervisors based on his race for six months­from February of 1995 to July 1995. Although (like the City of Phoenix in this case) the employer claimed on appeal that the award was "excessive," the Ninth Circuit unanimously affirmed the verdict in full.2

See also Williams v. Conagra Poultry Company, 378 F.3d 790, 793 (8th Cir. 2004) (affirming a jury verdict of $600,000.00 in compensatory damages for emotional distress based -4-

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Based on these cases, there is no question that the jury had more than ample evidence to award Ms. Ortega-Guerin $850,000.00 in compensatory damages. Indeed, the City has failed to cite even one Ninth Circuit case in support of its claim that it is entitled to either a new trial or a remittitur. Under the circumstances, the City's Motion must be denied. B. The jury's awards of punitive damages against Defendants Favela and Peralta were more than justified by the evidence.

Defendants Favela and Peralta next assert that the jury's respective awards of punitive damages against them are contrary to the standards governing the imposition of punitive damages and should consequently be "voided." This contention is demonstrably false, and­not surprisingly­Favela and Peralta have failed to cite even one Ninth Circuit case in support of their claim. First, Defendant Favela needs to take the time to actually read the judgment that the jury rendered against him: specifically, the jury awarded Ms. Ortega-Guerin $350,000.00 against Mr. Favela, not the $35,000.00 claimed in Favela's Motion. Moreover, based upon the fact that Mr. Favela personally witnessed Frank Peralta physically assault Ms. Ortega-Guerin on at least two occasions and did nothing to stop it­to the contrary, Favela literally covered his eyes to the misconduct­the jury's award of $350,000.00 against Favela was more than appropriate under the circumstances. See, e.g., Swinton v. Potomac Corporation, 270 F.3d 794, 799 (9th Cir. 2001)(affirming an award of punitive damages of $1,000,000.00 in a case involving only verbal harassment), and Pavon v. Swift Transportation Co., Inc., 192 F.3d at 906 (9th Cir. 1999)(affirming an award of punitive damages of $300,000.00 in another case involving only verbal harassment). Although Mr. Favela continues to deny that he engaged in any misconduct whatsoever regarding Ms. Ortega-Guerin, the jury obviously rejected his testimony in toto, as it was entitled on a discriminatory work environment), Phillips v. Bowen, 278 F.3d 103, 111-112 (2nd Cir.2002) (affirming a jury verdict of $400,000 in compensatory damages for emotional distress in a discrimination case involving five years of discrimination), and Evans v. Port Authority of New York and New Jersey, 273 F.3d 346, 354 (3rd Cir. 2001) (affirming a jury verdict in award of $375, 000.00 in compensatory damages for emotional distress in a discrimination case). -5-

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to do, and hence the whopping punitive damages award against him. See, e.g., Bell v. Clackamas County, 341, F.2d 858, 865 (9th Cir. 2003) ("we may not make credibility determinations and must draw all inferences in Bell's favor, disregarding all evidence favorable to the Defendants that the jury was not required to believe"). Lastly, Favela and Peralta ask the Court to "void" the respective awards of punitive damages against them because they claim they are allegedly too poor to pay the respective judgments against them. The Ninth Circuit's opinion in Bell v. Clackamas County, 334 F.3d at 868, is instructive in this regard: If the trial court deems it appropriate to reduce the punitive damage awards as so "grossly excessive" in violation of the due process on the basis of the individual defendants' ability to pay, it may do so only to the extent the records substantiates their wealth. Similarly, to the degree that the defendants seek reduction of punitive damages because of their inability to pay, any indemnification by the county for the payment of such damages may be taken into account. See Lawson v. Trowbridge, 153 F.3d 368, 379 (7th Cir. 1998), (explaining that the rational for applying the general rule of excluding evidence of indemnification dissolves "once the defendants made their financial weaknesses the centerpiece of their testimony in the damages phase of the trial"). In this case, Favela and Peralta have already admitted on the record at trial that they "may" be indemnified by the City for the awards of punitive damages rendered against them. In fact, as explained in detail and Ms. Ortega-Guerin's Trial Memorandum Concerning the Issue of Indemnification, filed with the Clerk of the Court on December 8, 2005, pursuant to Section 42.10(A) of the Phoenix City Code, both Favela and Peralta are entitled to be indemnified by the City for any liability arising in this case as a matter of law because the underlying conduct transpired within the "course and scope" of their employment with the City. Accordingly, under the circumstances, the jury's award of punitive damages against Favela and Peralta must stand. Conclusion: For the foregoing reasons, Plaintiff respectfully requests that Defendant's Motion for a New Trial or in the Alternative, for Remittitur be denied. Dated the 25th day of January 2006. -6-

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MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on January 25, 2006, 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: David F. Gaona Gaona Law Firm 3101 North Central Avenue, Suite 720 Phoenix, Arizona 85012 Attorney for Defendants I further certify that on January 26, 2006, the attached document was hand-delivered to: The Honorable Mary H. Murguia United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

s/ Stephen G. Montoya

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