Free Motion in Limine - District Court of Arizona - Arizona

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RICHARD J. HARRIS LAW OFFICES, P.C .
4445 E. HOLMES AVE., SUITE 106 MESA, AZ 85206 (480) 854-3500 [email protected]

Richard J. Harris ­ #013859 Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Matthew Shaffer, Plaintiff, v. State of Arizona Citizens Clean Election Commission; Colleen Connor and Chad Jacobs; husband and wife; and Jessica Funkhouser and Lindy Funkouser, husband and wife; John Does I-X; Jane Does I-X Defendants. Plaintiff moves in limine for the court to preclude from evidence any testimony, document or other reference to a statement made by Matt Shaffer on October 1, 2002 at a meeting of the CCEC. Such evidence is unfairly prejudicial and might confuse the jury into thinking that the October 1, 2002 meeting was a name-clearing hearing. As a matter of law, it was not a meaningful name clearing hearing. None of the usual requirements for a name clearing hearing were present. The employer did not give him notice of accusations against him; the employer did not give him access to any evidence upon which the accusations were purportedly based; he was not given a dedicated hearing or even an agenda item at the meeting; he was not represented by counsel; he was not allowed to review any evidence against him; he was not allowed to confront and cross examine his accuser. Moreover, Connor already testified that he was not going to change her mind. Finally, even Case 2:03-cv-02344-FJM Document 83 Filed 08/26/2005 Page 1 of 3 CV03 2344 PHX FJM MOTION IN LIMINE Shaffer's Statements at CCEC meeting on October 1, 2002

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defendant did not raise this as a name clearing hearing until after it was disclosed to them that Shaffer had made the statement. It is unfairly prejudicial for the court to allow this evidence in as it might confuse some jurors into thinking that Shaffer's comments were a name clearing hearing. "A hearing must be held for the limited purpose of giving a discharged employee an opportunity to clear her name." Donato v. Plainview-Old Bethpage Ctrl. Sch'l Dist., 96 F.3D 623, (2d Cir. 1996)(cert. denied, 519 U.S. 1150 (1997)). The 9th Circuit has set standards for what is required for a name clearing hearing to be meaningful. "At a minimum, due process requires notice and a hearing where the individual has a meaningful opportunity to confront the evidence against him." Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988)(cites omitted). Whether or not a hearing is meaningful is a question of fact for the jury. Id. In the Brady case the court indicated that an opportunity to be heard is not meaningful if there is not time to prepare to confront the evidence; if the employer has already indicated that nothing could change the outcome; and where the employer is just going through the motions. The facts here are much worse: no one even went through the motions to tell Shaffer about the stigmatizing accusations. No one even went through the motions a dedicated name clearing hearing. SUBM ITTED this August 26, 2005 R ICHARD J. H ARRIS L AW O FFICES, P.C.

By: s/Richard J. Harris Richard J. Harris 4445 E. Holmes Ave., Suite 106 Mesa, AZ 85206

Case 2:03-cv-02344-FJM

Document 83

2 Filed 08/26/2005

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Copy of the foregoing electronically transmitted via the U.S. District Court's Electronic Case Filing System this August 26, 2005 and to: Jay Zweig Melissa Berrens Gallagher & Kennedy 2575 E. Camelback Rd. Phoenix, AZ 85016-9225 Attorney for Defendants

s/Richard J. Harris
Shaffer\pleadings\Motion in Limine ­ October 1 statement

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Case 2:03-cv-02344-FJM

Document 83

3 Filed 08/26/2005

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