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

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

No. CIV 04-0289-PHX-MHM Plaintiff's Response to Defendants' Motion in Limine regarding the City's Internal Investigation

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City of Phoenix, Frank Favela, and Frank Peralta, defendants.

The City of Phoenix's belated investigation of Ms. Ortega-Guerin's complaints of
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sexual harassment against her supervisors Frank Peralta and Frank Favela
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substantiated her claims of harassment. See attached Exhibits A and B.
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Defendants nevertheless seek to exclude these documents from evidence at trial,
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claiming that they constitute inadmissible evidence of "subsequent remedial measures"
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under Federal Rule of Evidence 407.
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Defendants' assertion in this regard is meritless. The City has "opened-the-door"
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to this evidence by means of invoking the affirmative defense established by the
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Supreme Court of the United States in Burlington Industries, Inc., v. Ellerth, 524 U.S.
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742, 764 (1998), and Faragher v. City of Boca Raton, 524 U.S. 777, 807-808 (1998). Specifically, in the Proposed Final Pretrial Order in this matter, Defendant City of Phoenix claims that "upon notice [of Plaintiff's complaints of harassment], the City reacted responsibly." See pretrial statement, p. 7, line 23. Similarly, in the Defendants' "Contested Issues of Fact" section of the Final Pretrial Order, Defendants identify as an issue to be determined at trial "whether the City, on notice of the problematic behavior, took prompt and effective corrective measures." Id. at p. 11, ¶ 10, lines 6-8. Likewise, Defendants have stipulated that Ninth Circuit Uniform Civil Jury Instruction Number 12.2B be submitted to the jury in this case. See attached Exhibit C. Pursuant to that jury instruction, Defendants agreed that the jury is to be instructed on the affirmative defense to sexual harassment claims established by the Supreme Court of the United States in Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 764 (1998), and Faragher v. City of Boca Raton, 524 U.S. 777, 807-808 (1998). As the Ninth Circuit stated in Fuller v. City of Oakland, 47 F.3d 522, 528 (9th Cir. 1995): Once an employer knows or should know of harassment, a remedial obligation kicks in. . . . That obligation will not be discharged until action­prompt, effective action­has been taken. Effectiveness will be measured by the twin purposes of ending the current harassment and deterring future harassment­by the same offender or others. If (1) no remedy is undertaken, or (2) the remedy is ineffectual, liability will attach. Accordingly, the City has opened-the-door to the issue of its investigation
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because the City is attempting to use the investigation as evidence that it took "prompt and effective" corrective measures as an affirmative defense to Plaintiff's claims of harassment. For the foregoing reasons, Defendants' Motion in Limine regarding the City's Internal Investigation should be denied. Dated the 21st day of November, 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

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CERTIFICATE OF SERVICE

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I hereby certify that on November 21, 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

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I further certify that on November 21, 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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