Free Other Notice - 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. City of Phoenix, Frank Favela, and Frank Peralta, defendants. No. CV 04-0289-PHX-MHM Notice of Supplemental Authorities

Plaintiff respectfully directs the Court's attention to the Ninth Circuit's opinion in Hoptowit v. Ray, 682 F.2d 1237, 1262 (9th Cir. 1982), in which the Ninth Circuit affirmed the District Court's admission into evidence of "an investigative report prepared by employees. . . of one of the Defendants" in the dispute, reasoning that the report was admissible as an "admission of a party opponent" under Federal Rule of Evidence 801(d)(2)(D). In addition, Plaintiff directs the Court's attention to the district court's opinion in Sarro v. City of Sacramento, 78 F. Supp 2d. 1057, 1064 (N. D. Dist. Cal. 1999), where the court considered the content of a city defendant's internal investigation of a complaint of discriminatory harassment and concluded that: Even if the court were to accept the City's assertion that Sarro's complaint was thoroughly investigated, the court does not accept its assertion that the remainder of the investigation is irrelevant. The court must determine whether the City's actions were reasonably calculated to deter future harassment by the harasser or others. Yamaguchi, 109 F.3d at 1483. As discussed below, internal affairs' . . . probe . . . is absolutely relevant to such a determination.

Case 2:04-cv-00289-MHM

Document 55

Filed 12/06/2005

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Accordingly, the City of Phoenix's internal investigation of Plaintiff's complaint of harassment is admissible because it is probative of (among other things) the issue of whether or not the City undertook prompt and effective corrective measures in response to Plaintiff's complaint. Moreover, excluding the two reports from evidence would allow the City of Phoenix to falsely deny the specific facts upon which it disciplined defendants Peralta and Favela. Those specific facts clearly indicated that the City concluded that Frank Peralta had in fact engaged in a pattern of misconduct regarding Plaintiff and that Defendant Favela directly witnessed the harassment and did nothing to stop it. Indeed, on one occasion, Defendant Favela literally covered his eyes to the fact that Defendant Peralta was choking Plaintiff. The City of Phoenix should not be allowed to deny these specific facts at trial after it expressly found them to be true and predicated its discipline against Defendants Favela and Peralta on those very facts. Of course, Defendants Peralta and Favela will be free to deny those facts at trial, if they so choose. Defendants' attempt to suppress this evidence at trial indicates that there is a conflict of interest between the individual defendants and the City of Phoenix in this case. Specifically, the City of Phoenix intends to use the allegation that it took "prompt and effective corrective measures" as an affirmative defense to Plaintiff's Complaint. In contrast, the individual Defendants deny that they engaged in any misconduct whatsoever. These two positions are inherently contradictory, and the finder-of-fact is entitled to learn of that contradiction at trial in order to evaluate credibility of the respective Defendants. Dated the 6th day of December, 2005. 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 -2-

Case 2:04-cv-00289-MHM

Document 55

Filed 12/06/2005

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CERTIFICATE OF SERVICE

:

I hereby certify that on December 6, 2005, 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 December 6, 2005, the attached document was handdelivered 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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Case 2:04-cv-00289-MHM

Document 55

Filed 12/06/2005

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