Free Motion in Limine - District Court of Arizona - Arizona

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GAONA LAW FIRM
A PROFESSIONAL CORPORATION

3101 NORTH CENTRAL AVE, SUITE 720 PHOENIX, ARIZONA 85012 _____________

(602) 230-2636 Fax (602) 230-1377

David F. Gaona, State Bar No. 007391 Nicole Seder Cantelme, State Bar No. 021320 Attorneys 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. Defendants City of Phoenix, Frank Favela, and Frank Peralta ("the City Defendants") seek an Order from this Court prohibiting or precluding Plaintiff from testifying or presenting any evidence regarding (1) Plaintiff's involvement and testimony as a witness in an unrelated sexual harassment lawsuit filed against the City against Plaintiff's then-supervisor; and (2) Plaintiff's unrelated, prior investigated and resolved complaints of a hostile work environment, made against a former supervisor of Plaintiff. This Motion is more fully supported by the following Memorandum of Points and Authorities. /// /// /// No. CV04-0289 PHX MHM DEFENDANTS' MOTION IN LIMINE NO. 1 RE: PRIOR INCIDENTS

Case 2:04-cv-00289-MHM

Document 36

Filed 11/14/2005

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

DATED this 14th day of November, 2005. GAONA LAW FIRM /s/ David F. Gaona David F. Gaona Nicole Seder Cantelme Attorneys for Defendants

MEMORANDUM OF POINTS AND AUTHORITIES A. BACKGROUND 1. Plaintiff's Knowledge of Circumstances and Her Testimony in Prior Lawsuit Against the City.

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GAONA LAW FIRM

In 1999, Plaintiff was a trial witness in a case in which allegations of sexual harassment were made by a former City of Phoenix employee against Plaintiff's thensupervisor. Plaintiff testified as a witness at trial in that matter. Plaintiff was not a party in that matter, was not subjected to any harassing or hostile behavior by the parties to the incident, and made no claim of her own against this former supervisor. This prior matter is unrelated to the present matter and it did not involve any of the individual defendants in this case. 2. Plaintiff's Prior Complaint of Harassment Against a Former Supervisor.

In approximately 2000, Plaintiff reported a claim of harassment relating to a former supervisor. This former supervisor was eventually terminated in 2001. The former supervisor allegedly wanted Plaintiff to act as if she was having an affair with the Supervisor (which never happened). The former supervisor's wife confronted Plaintiff on one or more occasions, and Plaintiff, feeling threatened, reported the problem. The City investigated, moved Plaintiff to a different supervisor, and eventually fired Plaintiff's former supervisor. This prior matter is unrelated to the present matter and did not involve any of the individual defendants in this case.
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3.

Plaintiff's Water Training Program Upon her Initial Employment During her six 6) month

Plaintiff was initially hired and employed as a Water Service Trainee in the Water Services Department for the City of Phoenix. probation, she complained to City management that her immediate supervisor and coworkers were not permitting her to do her job, that is, because she was a woman, others did her job for her and referred to her as "skinny". The City, upon receipt of the complaint, moved Plaintiff to a new work crew. This event occurred in 1989, as Plaintiff was hired by the City in May, 1989. Plaintiff did pass probation, became a Water Services worker, ultimately becoming a Water Service Aide, allowing her to leave the field work for a position "inside". What occurred in 1989, and, dealt with immediately upon complaint, is of no relevance to the instant allegations. B. THE PRIOR INCIDENTS ARE NOT RELEVANT. These prior incidents have no relevance to Plaintiff's claims in this case and would not serve to make any fact in this case more or less probable. Fed. R. Evid. 402. Further, the probative value of such evidence, if any, would be outweighed by its clear prejudicial impact pursuant to Federal Rule of Evidence 403. Testimony about irrelevant and unrelated harassment environments or sexual discrimination complaints against the City will likely cause the jury to be confused and lose focus to decide this case on its own facts. None of these prior incidents involve the individual defendants, so they are wholly irrelevant to Plaintiff's claims against them. As for the City, evidence of these prior unrelated incidents is not only irrelevant; it would be improper character evidence under Federal Rule of Evidence 404(a) and (b). The City should not have to litigate these prior unrelated incidents. Incidents that were dealt with provide no necessary background information or put the Plaintiff's present claims in a necessary context; the various events are not alike, are far removed from incident to incident, and the jury from the instant case should not be permitted to use these irrelevant and untimely past incidences to bolster an otherwise weak case.
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The possibility that the jury would assess liability against the City based on alleged prior bad acts of other, unrelated former City employees, which have no relevance to the claims at issue, must be avoided to ensure that the Defendants receive a fair trial. Incidents that are too remote in time, too attenuated, too dissimilar from the facts at issue are not relevant and therefore not admissible. Rule 402, Federal Rules of Evidence; Janopoulos v. Harvey L. Walner & Associates, 866 F.Supp. 1086, 1091 (N.D. Illinois 1994); Tinsman v. Hott, 424 S.E.2d 584, 587-88 (W. Va. App. 1992). For instance, in Janopoulos, the Court granted the defendant's motion in limine to bar the introduction of prior EEOC complaints against the alleged harasser. The court found that the plaintiff could not state that the claimed harassment of others would "implicate the [plaintiff's] work environment." Janopulos, 866 F.Supp. at 1091. In the instant case, the introduction of evidence relating to alleged incidences of harassment and/or discrimination, although involving Plaintiff, but occurring years ago, occurring at the alleged hands of others, and, the subject of complaints that were handled and for which the Plaintiff chose not to proceed forward in the context of a lawsuit, would unfairly prejudice the Defendants in the instant matter by putting the jury in a position to punish the Defendants for misconduct that is not the subject of this lawsuit. See Bhaya v. Westinghouse Electric Corporation, 922 F.2d 184, 188, (3rd Cir. 1990) ("[e]vidence that a party committed wrongs other than those at issue in a case often creates a danger of "unfair prejudice" because such evidence may influence a jury to return a verdict based on a desire to punish the other wrongs"]. In addition, needless expansion of the trial would result if Plaintiff is permitted to introduce incidents of alleged discrimination 15 years ago, or even five years ago. Based on the foregoing, Defendants respectfully request that this Court grant this Motion and exclude: (1) any evidence or testimony concerning Plaintiff's knowledge of circumstances or involvement as a witness in an unrelated prior sexual harassment

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lawsuit, and (2) any testimony or evidence regarding Plaintiff's unrelated prior claims of sexual discrimination or harassment against persons unrelated to this case. DATED this 14th day of November, 2005. GAONA LAW FIRM /s/ David F. Gaona David F. Gaona Nicole Seder Cantelme Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on November 14, 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: Stephen G. Montoya, Esq. MONTOYA JIMENEZ, P.A. The Great American Tower 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 I further certify that on November 15, 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/David F. Gaona

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