Free Other Notice - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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

David F. Gaona (#007391) GAONA LAW FIRM
3101 North Central Avenue, Ste. 720 Phoenix, Arizona 85012-2640 (602) 230-2636 (fax) 230-1377

[email protected] Attorney for Defendants

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 04-289-PHX-MHM PROPOSED PRETRIAL ORDER

Pursuant to this Court's Scheduling Order of September 22, 2005, the parties to this proceeding submit the following Proposed Pretrial Order to be considered at the final pretrial conference scheduled for November 21, 2005 at 4:00 p.m.

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 1 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

A.

TRIAL COUNSEL FOR PARTIES Plaintiff: Stephen G. Montoya Montoya Jimenez, P.A. 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 [email protected] (602) 256-6718 (602) 256-6667 (fax) David F. Gaona Gaona Law Firm 3101 North Central Avenue, Ste. 720 Phoenix, Arizona 85012-2640 (602) 230-2636 (fax) 230-1377 Attorney for Defendants

Defendant:

B.

STATEMENT OF JURISDICTION

This Court has jurisdiction over this case under 28 U.S.C. §§1331 and 1343(4). C. NATURE OF ACTION

This is an action seeking money damages for alleged hostile working environment sexual harassment brought by plaintiff Monica Ortega-Guerin against defendants City of Phoenix, Frank Favela and Frank Peralta, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, and the Civil Rights Act of 1871, 42 U.S.C. §1983. D. CONTENTIONS OF THE PARTIES

Contentions of Plaintiff: 1. Ms. Ortega-Guerin's Claims against the City of Phoenix under Title VII.

In order to prevail on her claim of hostile working environment sexual harassment -2-

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 2 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

against the City of Phoenix, plaintiff must establish each of the following elements by a preponderance of evidence: 1. That she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; 2. 3. That the conduct was unwelcome; and That the conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment; See Ellison v. Brady, 924 F.2d 872, 875-876 (9th Cir. 1991) and Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th Cir. 1999). The "required showing of severity or seriousness of the sexually harassing conduct varies inversely with the pervasiveness or frequency of the conduct." Ellison v. Brady, 924 F.2d at 879 (9th Cir. 1991). Moreover, the question of whether a particular working environment is "hostile or abusive" is to be considered from the perspective of a "reasonable person" with the same fundamental characteristics as the victim of harassment under the same circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). When determining whether an unlawful hostile working environment exists, the court must consider "the totality of the circumstances." Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). See also Harris v. Forklift Systems, Inc., 510 U.S. at 23 (1993) ("whether an environment is 'hostile or

-3-

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 3 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

'abusive' can be determined only by looking at all of the circumstances"). 2. Ms. Ortega-Guerin's claims against Frank Peralta under 42 U.S.C. §1983.

Frank Peralta's repeated physical and verbal sexual harassment of Ms. OrtegaGuerin was done within the course and scope of his employment at the City and consequently violated Ms. Ortega-Guerin's rights under 42 U.S.C. § 1983. See, e.g., Kelly v. City of Oakland, 198 F.3d 779, 784-786 (9th Cir. 1999). 3. Ms. Ortega-Guerin's claims against Frank Favela under 42 U.S.C. §1983.

Frank Favela exercised supervisory authority over both Ms. Ortega-Guerin and Mr. Frank Peralta. Although Ms. Ortega-Guerin repeatedly complained to Mr. Favela regarding Mr. Peralta's sexual harassment, and in fact on several occasions Mr. Peralta personally witnessed the behavior and literally covered his eyes to it, Mr. Favela failed to take any corrective measures to stop the harassment. Under 42 U.S.C. §1983, supervisory liability is imposed against a supervisory official like Mr. Favela for his "own culpable action or inaction in the training, supervision, or control of his subordinates, for his acquiescence in the constitutional deprivations of which the complaint is made, or for conduct that showed a 'reckless or callous indifference to the rights of others." Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991). 4. Damages and Attorney Fees

Ms. Ortega-Guerin is entitled to awards of compensatory damages against all Defendants and awards of punitive damages against Defendants Favela and Peralta. See, -4-

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 4 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

e.g., Smith v. Wade, 461 U.S. 30, 56 (1983). In addition, if Ms. Ortega-Guerin prevails at trial, she will be entitled to an award of her attorney fees. See, e.g., Cabrales v. City of Los Angeles, 935 F.2d 1050, 1051 (9th Cir. 1991). Contentions of Defendants (a) Plaintiff's 42 U.S.C.§1983 Claim.

The Plaintiff 's Complaint, as well as her Disclosure Statement, fails to allege specifics relating to what policy or custom of the City exists which has lead to alleged injury to the Plaintiff and for which the City might otherwise be responsible under 42 U.S.C. § 1983. The City cannot be liable premised upon respondeat superior theory. Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). Moreover, the City cannot be liable under U.S.C. § 1983 unless the Plaintiff alleges and proves that the action and infliction of injury is from either an explicitly adopted or passively authorized governmental policy. See Ortez v. Washington County, Oregon, 88 F.3d 804, 811 (9th Cir. 1996). In short, in order to state a claim and carry its burden to establish City liability under 42 U.S.C. §1983, the Plaintiff must establish one of three things: (1) she can prove that a City employee committed an alleged constitutional violation pursuant to formal governmental policies or a Along standing practice or custom which constitutes the standard operating procedure or local governmental entity; (2) that the individual who committed the constitutional tort was an official with final policy-making authority and the challenged action -5-

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 5 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

itself constitutes an act of governmental policy; or (3) that an official or final policy-making authority ratified a subordinate constitutional decision or act as well as the basis for it. Gillette v. Delmore, 979 F.3d 1340, 1346 (9th Cir. 1992), cert. denied 510 U.S. 923 (1993). To the extent Plaintiff is suing the individual defendants, Favela and Peralta, in their personal capacity under 42 U.S.C. § 1983, the defendants assert the defense of qualified immunity. The best approach in resolving a case in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of the constitutional or statutory right at all. Thereafter, the inquiry is whether the Acontours of the right [were] Y sufficiently clear that a reasonable official would understand that what he is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 634-40 (1987). The Plaintiff's § 1983 claim against individual defendant Peralta tracks the Plaintiff's Title VII claim against the City, and Plaintiff must prove the specific elements to prevail. Defendants contend that Plaintiff will be unable to prove that he knew or should have known that his boorish behavior, including touching in a horse-playing type manner, was against any clearly established Federal law or constitutional right and subjection to liability. Moreover, the conduct was engaged in by Plaintiff and initiated by Plaintiff, and was therefore welcome. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In addition, the conduct was neither severe nor pervasive. Defendant Favela contends that his initial knowledge of the situation, and, counseling of Defendant Peralta was also not violative of a clearly established law that

-6-

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 6 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

informs him that he must have or should have, absolutely, done more. In addition, with respect to Defendant Favela's ' 1983 responsibility, if any, for supervisory liability, the relevant inquiry is whether he appeared deliberately indifferent in supervising subordinates, and, if so, whether that deliberate indifference actually caused the deprivation of the plaintiff's rights. McGrath v. Scott, 250 F.Supp.2d 1218, 1224 (D. Ariz. 2003) cited with approval L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996). In Redman v. County of San Diego, 942 F.2d 1435 (9th Cir. 1991), deliberate indifference was defined as: [c]onduct that is so wanton or reckless with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur, will suffice to establish liability because it is conduct equivalent to a deliberate choice. Id. at 1443. 2. PLAINTIFF'S TITLE VII CLAIM

With respect to the Plaintiff's Title VII claim, there is no individual liability relative to Title VII against the individual defendants in this case. Miller v. Maxwell International, Inc., 991 F.2d 583 (9th Cir. 1983). With respect to Title VII liability against the City, the City submits that the Plaintiff will be unable to carry her burden relative to a prima facie case, as there was no pervasive action taken, the conduct was welcome, and upon notice, the City reacted responsibly. Moreover, Plaintiff's employment conditions were not affected at any time. In addition, because the City neither knew nor should have known, it is not responsible for Mr. Peralta's actions. -7-

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 7 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The jury will need to distinguish between teasing and rough-housing versus severely hostile or abusive conduct. In addition, it is incumbent upon Plaintiff, in order to establish a prima facie case, to demonstrate that the conduct for which she complained was neither welcome nor was she a willing participant. In addition, it is incumbent upon the Plaintiff to show that she suffered an adverse employment action. The Plaintiff suffered no adverse employment action as she was deprived of no position, no wage, and no benefits. Moreover, the Plaintiff knew and had available to her City processes and policies to take advantage of to avoid harm. To the extent Plaintiff claims that conduct was pervasive, Plaintiff failed to take advantage of City policy and permit corrective procedures to stop any such action. 3. DAMAGES

If liability is found, Defendants contest Plaintiff's entitlement to damages. The only compensatory damages available to Plaintiff are for emotional stress damages against the City. Concerning the individual defendants, the burden for punitive damages is high, and must also comply with constitutional due process concerns. Dang v, Cross, infra; Larez v. City of Los Angeles, 946 F.2d 630, 648-49 (9th Cir. 1991). E. 1. STIPULATIONS OF UNCONTESTED FACTS Ms. Ortega-Guerin, Mr. Frank Favela and Mr. Frank Peralta were all employed by the City of Phoenix at all times material to this proceeding. F. CONTESTED ISSUES OF FACT AND LAW -8-

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 8 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff's Contested Issues of Fact and Law: 1. Whether Plaintiff was subjected to an unlawful sexually hostile work environment (as defined above) while employed by the City of Phoenix. 2. Whether Plaintiff complained to management or otherwise appraised management of allegations relating to alleged hostile work environment. 3. Whether the City of Phoenix failed to remedy or prevent a sexually hostile work environment of which management level employees knew, or in the exercise of reasonable care should have known. 4. Whether Plaintiff's working conditions were altered as a result of any unlawful sexually hostile work environment at the City. 5. Whether Plaintiff suffered an adverse employment action or any tangible employment action as a result of any unlawful sexually hostile work environment at the City. 6. Whether Frank Favela and Frank Peralta acted under color of state law in reference alleged harassment of Plaintiff. 7. Whether the City to the extent it had notice of Plaintiff's claims of hostile work environment, promptly investigated and whether remedial measures were employed. 8. Whether Plaintiff is entitled to an award of nominal damages against Defendants for a sexually hostile working environment. -9-

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 9 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

9.

Whether Plaintiff is entitled to an award of compensatory damages Defendants for a sexually hostile working environment.

10.

Whether Plaintiff is entitled to an award of punitive damages against Defendants Favela and Peralta a sexually hostile working environment.

11.

Whether Plaintiff is entitled to an award of her costs and attorney fees against the City.

Defendants' Contested Issues of Fact: 1. Whether Plaintiff was subjected to an unlawful, hostile work environment caused by defendants Favela and/or Peralta. 2. 3. Whether Plaintiff has suffered any adverse employment action. Whether, and to what extent Plaintiff welcomed any conduct for which she now complaint. 4. Whether, and to what extent Plaintiff participated in the same conduct for which she now complains. 5. Whether Plaintiff, through and by her own actions, welcomed behavior for which she now complains. 6. Whether the actions that Plaintiff now complains of were sufficiently severe or pervasive. 7. Whether the actions for which Plaintiff now complains caused an adverse employment action. - 10 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 10 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

8.

Whether Plaintiff appropriately engaged in reasonable efforts to invoke City policies concerning the actions for which she now complains.

9.

Whether the Plaintiff unreasonably failed to take advantage of preventative or corrective opportunities provided by the City.

10.

Whether the City, on notice of problematic behavior, took prompt and effective corrective measures.

11.

Whether the City, through an ultimate decision-maker, knew and then ratified the conduct for which the Plaintiff complained.

12.

Whether the City explicitly adopted or passively authorized a policy that was unconstitutional with respect to the actions for which the Plaintiff complains.

13. 14. 15.

Whether the individual defendants have qualified immunity. Whether the Plaintiff has been damaged and to what extent. Whether any actions of the individual defendants constitute and permit an award of punitive damages against either individual defendant.

Defendants' Contested Legal Issues 1. The relevance and scope of alleged harassment activities in the work place with this dispute. 2. Whether the alleged acts are pervasive and severe, whether Plaintiff's action welcomed the complained of behavior, whether a prima facie case can be established? - 11 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 11 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

3.

The relevance of internal investigations conducted by the City concerning conduct of the individual defendants and whether such investigation was admissible.

4.

The extent to which the Plaintiff will be entitled to request any amount of damages based upon a failure to disclose and/or respond to outstanding discovery.

5.

Whether the Plaintiff can carry her burden to place the issue of punitive damages against the individual defendants in the jury's hands.

6.

Whether the Plaintiff can sustain her burden of a prima facie 42 U.S.C. ' 1983 claim.

G.

LIST OF WITNESSES

Plaintiff's: 1. 1. Will Testify: Monica Ortega-Guerin In Care of her attorney-in-fact Stephen G. Montoya Montoya Jimenez, P.A. 3200 North Central Avenue, Suite 3200 Phoenix, Arizona 85012 (602) 256-6718 Ms. Ortega-Guerin will substantiate the allegations set forth in her Complaint against the Defendants in this dispute. 2. Frank Peralta City of Phoenix 6202 North 24th Street Phoenix, Arizona 85016 - 12 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 12 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. 5. 4. 3.

Mr. Peralta has information regarding the working environment at the Water Distribution Division of the City of Phoenix and the incidents alleged in Plaintiff's Complaint. Plaintiff believes that Mr Peralta will admit that he inappropriately touched Plaintiff on numerous occasions. Frank Favela City of Phoenix 6202 North 24th Street Phoenix, Arizona 85016 Mr. Favela has information regarding the working environment at the Water Distribution Division of the City of Phoenix and the incidents alleged in Plaintiff's Complaint. James Sterne City of Phoenix 6202 North 24th Street Phoenix, Arizona 85016 Mr. Sterne has information regarding the working environment at the Water Distribution Division of the City of Phoenix and the incidents alleged in Plaintiff's Complaint. Albert Bivens City of Phoenix 6202 North 24th Street Phoenix, Arizona 85016 Mr. Bivens has information regarding the working environment at the Water Distribution Division of the City of Phoenix and the incidents alleged in Plaintiff's Complaint. Sheryl Guzman City of Phoenix 6202 North 24th Street Phoenix, Arizona 85016 Ms. Guzman has information regarding the working environment at the Water Distribution Division of the City of Phoenix and the incidents alleged in Plaintiff's Complaint. - 13 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 13 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

7.

Cathy White City of Phoenix 6202 North 24th Street Phoenix, Arizona 85016 Ms. White has information regarding the working environment at the Water Distribution Division of the City of Phoenix and the incidents alleged in Plaintiff's Complaint.

2. 8.

May Testify: Larry Tellez City of Phoenix 6202 North 24th Street Phoenix, Arizona 85016 Mr. Tellez has information regarding the working environment at the Water Distribution Division of the City of Phoenix and the incidents alleged in Plaintiff's Complaint.

9.

Robert Nandin City of Phoenix 6202 North 24th Street Phoenix, Arizona 85016 Mr. Nandin has information regarding the working environment at the Water Distribution Division of the City of Phoenix and the incidents alleged in Plaintiff's Complaint.

10.

William Fields City of Phoenix 6202 North 24th Street Phoenix, Arizona 85016 Mr. Fields has information regarding the working environment at the Water Distribution Division of the City of Phoenix and the incidents alleged in Plaintiff's Complaint.

- 14 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 14 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

11.

Bill Coates City of Phoenix 6202 North 24th Street Phoenix, Arizona 85016 Mr. Coates has information regarding the working environment at the Water Distribution Division of the City of Phoenix and the incidents alleged in Plaintiff's Complaint.

12.

Tom Robbins City of Phoenix 6202 North 24th Street Phoenix, Arizona 85016 Mr. Robbins has information regarding the working environment at the Water Distribution Division of the City of Phoenix and the incidents alleged in Plaintiff's Complaint.

Defendants: 1. (a) Will Testify Frank Favela, c/o David F. Gaona, 3101 North Central, Suite 720, Phoenix, Arizona 85012. Mr. Favela is a named defendant, was within the Plaintiff's supervisory chain, and is expected to testify consistent with his recollection of the Plaintiff's employment tenure with the City, his interactions with the Plaintiff, his interactions with Mr. Peralta and, his knowledge relative to any of the Plaintiff's allegations. (b) Frank Peralta, c/o David F. Gaona, 3101 North Central, Suite 720, Phoenix, Arizona 85012. Mr. Peralta is a named defendant, was a co-worker of Plaintiff and is expected to testify consistent with his knowledge of the Plaintiff, the co- 15 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 15 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (f) (e) (d) (c)

worker relationship he and the Plaintiff enjoyed, their friendship and events occurring on and off the job. Jim Sterne, c/o David F. Gaona, 3101 North Central, Suite 720, Phoenix, Arizona 85012. Mr. Sterne also worked in the Water Services Department, was a Water Service Foreman for all relevant times, and is expected to testify consistent with his knowledge of the Plaintiff's work, his observations of the workplace, and other matters that he recollects for all relevant times. Cheryl Guzman, c/o David F. Gaona, 3101 North Central, Suite 720, Phoenix, Arizona 85012. Ms. Guzman assisted in conducting an investigation relating to the Plaintiff's complaint and is expected to testify consistent with her investigation, the steps she engaged, interviews conducted and information secured. Albert L. Bivens, c/o David F. Gaona, 3101 North Central, Suite 720, Phoenix, Arizona 85012. Mr. Bivens is a former City of Phoenix employee who is expected to testify consistent with his recollection relating to a discussion he had with the Plaintiff on or about October 10, 2002, as well as other observations concerning the Plaintiff's interactions with others in the workplace, work ethic and issues. Monica Ortega-Guerin, c/o Stephen Montoya, 3200 North Central, Suite 2550,

- 16 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 16 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) (a) 2. (g)

Phoenix, Arizona 85012. Ms. Ortega-Guerin is the Plaintiff in this matter, has asserted various allegations as set forth in her Complaint, and is expected to testify consistent with her recollection relative to those allegations, including her claim of damages in this case. Donna Weinand, c/o David F. Gaona, 3101 North Central, Suite 720, Phoenix, Arizona 85012. Ms. Weinand, for all material times, was employed by the Water Services Department and is expected to testify consistent with her knowledge of the Plaintiff, her dealings with the Plaintiff and issues relative to the Plaintiff during all relevant times. May Testify Robert Mandin, c/o David F. Gaona, 3101 North Central, Suite 720, Phoenix, Arizona 85012. Mr. Mandin works for the Water Services Department and may have information concerning the interaction between Mr. Peralta and Ms. Ortega-Guerin and to the extent he does, will testify relative to his recollection. Cathy White, c/o David F. Gaona, 3101 North Central, Suite 720, Phoenix, Arizona 85012. Ms. White is a Water Services worker, Special Operations at the City of Phoenix and may have information concerning interaction between Frank Peralta and Plaintiff, as well as interaction between Plaintiff and others, and will testify consistent with her recollection.

- 17 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 17 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(c)

Terrance Piekarz, c/o David F. Gaona, 3101 North Central, Suite 720, Phoenix, Arizona 85012. Mr. Piekarz is the Assistant Water Distribution Superintendent and was for all relevant times. Mr. Piekarz was involved in oversight of the investigation conducted by Ms. Guzman and may have information consistent with his recollection concerning that investigation, Ms. Ortega Guerin and allegations she has lodged, and knowledge by management or not concerning allegations posed by Ms. Ortega-Guerin.

(d)

Lori Kotellev, c/o David F. Gaona, 3101 North Central, Suite 720, Phoenix, Arizona 85012. Ms. Kotellev is a support services worker in Water Services and may have information concerning the interactions between Mr. Peralta and Plaintiff and will testify consistent with that knowledge.

(e)

Richard Blankenship, c/o David F. Gaona, 3101 North Central, Suite 720, Phoenix, Arizona 85012. Mr. Blankenship is a City of Phoenix Water Service foreman who may have testimony and information concerning the interaction between Mr. Peralta and Ms. Ortega-Guerin and will testify consistent with that recollection.

(f)

David Deneau, c/o David F. Gaona, 3101 North Central, Suite 720, Phoenix, Arizona 85012. Mr. Deneau is with the City Equal Opportunity Department and will testify about his dealings with Plaintiff.

(g)

Witnesses listed by Plaintiff.

- 18 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 18 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

H.

EXPERTS

Neither party intends to call an expert witness at trial. I. LIST OF EXHIBITS

Plaintiff's1: 1. 2. August 20, 2002 Employee Counseling form regarding Frank Favela. October 14, 2002 "Disposition of Incident" regarding Frank Peralta from Frank Favela. 3. October 10, 2002 Memorandum regarding Monica Ortega-Guerin by Albert Bivens. 4. October 14, 2002 Memorandum regarding Monica Ortega-Guerin by Albert Bivens. 5. 6. March 27, 2003 Discipline Notice regarding Frank Favela. October 29, 2002 Notice of Inquiry regarding Frank Favela and all attachments thereto. 7. Charge of Discrimination of September 11, 2003 filed by Monica OrtegaGuerin against the City of Phoenix. 8. October 26, 2002 Memorandum by Frank Peralta to Mrs. Cheryl and Mr. Terrance.

The parties stipulate that Defendants are reserving their right to object to Plaintiff's Exhibits. - 19 -

1

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 19 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

9.

E-mail of Terrance Piekarz dated 2/12/2003 regarding promotion of James Sterne

10.

Discipline Notice of FRank Peralta of May 6, 2003 (Bates nos. 1830PHX to 1832PHX).

11.

Memorandum of January 17, 1996 from Michael Gritzuk regarding out-ofclass assignment of Frank Peralta (1820PHX).

12.

Plaintiff's Employee Performance Appraisal Reports from 1990

Defendant's: 1. Employee Counseling Document relating to Frank Peralta dated August 20, 2002. Plaintiff objects to this exhibit on grounds of hearsay and foundation. 2. Memo from Frank Favela to Monica Ortega-Guerin dated 10-14-02. Plaintiff objects to this exhibit on grounds of hearsay and foundation. 3. Memo from Albert Bivens, dated October 10, 2004. Plaintiff objects to this exhibit on grounds of hearsay and foundation. 4. Memo from Albert Givens dated 10-14-02. Plaintiff objects to this exhibit on grounds of hearsay and foundation. 5. Frank Favela training summary report dated October 17, 2002. Plaintiff objects to this exhibit on grounds of hearsay and foundation. 6. Initial Discipline Notice submitted to Frank Favela. - 20 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 20 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

7. 8.

Notice of inquiry directed to Frank Favela dated October 25, 2002. Memo to Frank Favela from Terrance Piekarz dated February 28, 2003. Plaintiff objects to this exhibit on grounds of hearsay and foundation.

9.

PMG of Frank Favela dated 2-8-03. Plaintiff objects to this exhibit on grounds of hearsay and foundation.

10.

PMB of Frank Favela dated 2-8-02. Plaintiff objects to this exhibit on grounds of hearsay and foundation.

11.

PMG of Frank Favela dated 2-8-00. Plaintiff objects to this exhibit on grounds of hearsay and foundation.

12.

PMG of Frank Favela dated 8-8-99. Plaintiff objects to this exhibit on grounds of hearsay and foundation.

13.

Telephonic interview note concerning interview of Ms. Ortega-Guerin on December 12, 2002. Plaintiff objects to this exhibit on grounds of hearsay and foundation.

14.

Flow chart concerning water distribution positions/hierarchy. Plaintiff objects to this exhibit on grounds of hearsay and foundation.

15.

Memo from Frank Peralta to Ms. Guzman and Mr. Piekarz dated October 26, 2002. Plaintiff objects to this exhibit on grounds of hearsay and foundation.

16.

Response to Notice of Inquiry from Frank Peralta to Mr. Piekarz and Ms. - 21 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 21 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 None. K. J.

Guzman dated February 10, 2003. Plaintiff objects to this exhibit on grounds of hearsay and foundation. INFORMATION FOR COURT REPORTERS Inapplicable. DEPOSITIONS TO BE OFFERED The parties do not intend to use any deposition testimony as direct evidence in her case in chief. However, the parties reserve their right to use the deposition testimony of any witness for purposes of impeachment. L. MOTIONS IN LIMINE

Defendants have filed three (3) motions in limine scheduled to be ruled upon at the Final Pretrial conference. They are as follows: Defendants' Motion in Limine No. 1 deals with prior incidences involving the Plaintiff over the course of her 15-year tenure as a City employee, and the inadmissibility of such prior incidences; Defendants' Motion in Limine No. 2 concerns the City's internal investigation and discipline of Defendants Frank Favela and Frank Peralta and the inadmissibility of that information; and Defendants' Motion in Limine No. 3 concerns the Plaintiff's damages case and the inadmissibility of any back-wage claim due to no disclosure. M. LIST OF ANY PENDING MOTIONS

- 22 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 22 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

N.

PROBABLE LENGTH OF TRIAL

Four to five days O. TRIAL DATE

December 6, 2005 P. JURY DEMAND

Both parties timely requested a trial by jury. Q. CERTIFICATIONS

The undersigned counsel for each of the parties in this action do hereby certify and acknowledge the following: 1. 2. 3. All discovery has been completed. The identity of each witness has been disclosed to opposing counsel. Each exhibit listed herein (a) is in existence; (b) is numbered; and (c) has been disclosed and shown to opposing counsel. 4. The parties have complied in all aspects with the mandates of the Court's Rule 16 Scheduling Order. 5. Unless otherwise previously ordered to the contrary, the parties have made all of the disclosures required by the Federal Rules of Civil Procedure.

- 23 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 23 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

APPROVED AS TO FORM AND CONTENT: Dated the 16th 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 s/ Stephen G. Montoya for David F. Gaona Gaona Law Firm 3101 North Central Avenue, Ste. 720 Phoenix, Arizona 85012-2640 Attorney for Defendants

Based on the foregoing, IT IS ORDERED that this Proposed Pretrial Order jointly submitted by the parties is hereby APPROVED and is thereby ADOPTED as the official Pretrial Order of this Court.

DATED this _______ day of ___________________, 2003.

___________________________________ Mary H. Murgia United States District Judge

- 24 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 24 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CERTIFICATE OF SERVICE

:

I hereby certify that on November 16, 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 November 17, 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

- 25 -

Case 2:04-cv-00289-MHM

Document 44

Filed 11/16/2005

Page 25 of 25