Free Response to Motion - District Court of Arizona - Arizona

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Jeffrey L. Lowry, SBN 8293 (New Mexico ­ Pro Hac Vice) Aaron C. Viets, SBN 12164 (New Mexico ­ Pro Hac Vice) Rodey, Dickason, Sloan, Akin & Robb, P.A. 201 Third St., NW, Suite 2200 Albuquerque, New Mexico 87102 Telephone: (505) 765-5900 Paul A. Conant, SBN 012667 Thomson Conant, PLC Northern Trust Bank Tower, Suite 925 2398 East Camelback Road Phoenix, AZ 85016 Telephone: (602) 508-9010 Attorneys for Defendants Albertsons, Inc. and Debra A. Collette

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Lewis Silverman, Cynthia Silverman, Plaintiffs, vs. Albertson's, Inc., a corporation, and Debra A. Collette, Defendants. CIV-03-2268 PHX/NVW

DEFENDANT ALBERTSONS, INC.'S RESPONSE TO PLAINTIFF'S MOTION IN LIMINE RE: PAST ALLEGED PERFORMANCE ISSUES

Plaintiff asks the Court to refuse to admit evidence "regarding prior allegations of performance issues" including those raised in written discipline Plaintiff received in March and July 2002. Plaintiff contends that the evidence is irrelevant, that it is inadmissible under Rule 404(b), and that it is unfairly prejudicial, confusing, misleading,

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and wasteful. Each of Plaintiff's assertions is incorrect. To appreciate fully why this is so, it is important to understand more particularly what evidence is at issue. Defendant intends to offer the following evidence at trial: · On March 18-19, 2002, Debra Collette (under her married name, "Toleau") issued Plaintiff a written warning for closing the coffee bar early and treating a customer rudely after the customer complained that Plaintiff served her a drink with a hair in it. See March 18-19, 2002 Warning Notice, attached as Ex. A; Pl's Dep. p. 20, lines 12-16, attached as Ex. G. · In 2002, the store had a "buy ten coffees, get one free" promotion in which the store distributed "punch cards" to patrons. With each purchase, the coffee bar attendant was to punch the card once. On July 8, 2002, Plaintiff was caught punching multiple coffee cards at one time. See July 8, 2002 Warning Notice, attached as Ex. B; Dep. of Casey Tomlinson at p. 12, lines 1-15; p. 13 line 25 to p. 14, line 14, attached as Ex. C. Also around the same time, a customer reported that Plaintiff gave him a handful of punch cards in exchange for free drinks. See July 8, 2002 Warning Notice, attached as Ex. B. As a result, on July 21, 2002, Plaintiff was disciplined in writing. · In 2002, Plaintiff submitted repeated requests for additional coffee punch cards to his immediate supervisor, Ed Koslow, who was placed in charge of the coffee bar that year. See notes from Plaintiff, attached as Ex. C; Dep. of Ed. Koslow, p. 8, lines 11-16, attached as Ex. E. Mr. Koslow felt Plaintiff's requests were excessive. Mr. Koslow began to mark the punch cards he gave to Plaintiff and discovered that the cards returned with ten punches much faster than one would expect a person to buy ten coffees. See punch cards, attached as Ex. D. Mr. Koslow believed Plaintiff was abusing the coffee bar program by giving away fully-punched cards, just as a customer had reported. · On "quite a few occasions" since 2002 when Ed Koslow became the coffee bar supervisor, pastries were missing from the coffee bar display case after it had been filled and then Plaintiff ("Lew") worked the intervening shift. See Dep. of Ed. Koslow, p. 8, lines 11-16; p. 16, lines 221, attached as Ex. E.

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· On July 21, 2002, Plaintiff was written up for repeatedly ignoring requests to clean up the coffee bar. Plaintiff called the Store Director a liar in response. See July 21, 2002 Warning Notice, attached as Ex. F.1 Plaintiff wants to prevent the jury from hearing any of this evidence. Plaintiff wants to leave the jury with the impression that he was a model employee, see, e.g., PS 1091, part of June 13, 2003 letter from Plaintiff to "Cassandra," attached as Ex. H, and to block Defendant from challenging this phony image. The Court should not allow Plaintiff to have his cake and eat it too. It should deny Plaintiff's motion to exclude evidence regarding his past performance problems at Albertsons. I. Evidence of Plaintiff's past performance is relevant. Plaintiff was not fired for his poor job performance before June 2003, but that does not mean his pre-June 2003 job performance is irrelevant. Plaintiff's theory in this lawsuit is that Debra Collette was on a "witch hunt" for him in June 2003 because he is Jewish and that the reason she gave for firing him in June 2003 is pretextual. See Alb-00182, part of undated letter from Plaintiff to Defendant, attached as Ex. I. If Plaintiff had an unblemished employment history, a jury might "do more than merely raise a skeptical brow" to Defendant's defense that Plaintiff's performance left something to be desired in June 2003. Cf. Zierke v. Donnelly and Sons, Co., No. 94 C 7593, 1997 WL 614390, at * 6 (N.D. Ill. Sept. 24, 1997) (finding significant the plaintiff's good performance on other occasions). Those, however, are not the facts. Plaintiff had substantial past
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The original of Exhibit F, which Defendant can produce for the Court and the jury, more clearly shows that Plaintiff said Ms. Collette was a liar.

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performance problems. This evidence undercuts Plaintiff's theory that Ms. Collette was just looking for excuses to take action against him in June 2003. II. The principle of completeness requires admission of evidence regarding Plaintiff's performance before June 2003. Plaintiff argues that his past performance is irrelevant, unfairly prejudicial, confusing, and misleading--yet at the same time he intends to present evidence that he served "hundreds and hundreds of satisfied customers," that he never took a sick day, that he helped out whenever he was asked, that he was "a loyal competent worker," etc. See PS 1091, part of June 13, 2003 letter from Plaintiff to "Cassandra," attached as Ex. H (on Plaintiff's exhibit list). Defendant expects Plaintiff to testify similarly and even to attempt to call former customers to testify that he was a good employee. Defendant disputes Plaintiff's assertions about his performance, and it has evidence with which to do so, but if the Court grants Plaintiff's motion, Defendant would not be able to present its evidence. This would create a misleading impression with the jury. The "completeness principle" was fashioned to prevent just this type of one-sided presentation, and the Court should apply it here to deny Plaintiff's motion in limine. See United States v. Collicott, 92 F.3d 973, 983 n.12 (9th Cir. 1996) (applying completeness principle in Fed. R. Evid. 106 and 611). III. Evidence regarding Plaintiff's past misconduct shows his intent to have unauthorized possession of company property, an absence of mistake about why he had company property, and a motive to make allegations against Ms. Collette. Evidence of "other acts" may be admissible to prove intent or the absence of mistake. Fed. R. Evid. 404(b). Defendant's defense in this lawsuit is that
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Plaintiff improperly possessed company property. Plaintiff's response is that he did not intend to do so. He says he was just following instructions to clean the coffee bar and that Albertsons was mistaken in concluding otherwise. Evidence of Plaintiff's past on-the-job misconduct is contrary to these positions. Evidence of Plaintiff's abuse of the punch card promotion and evidence that pastries disappeared during Plaintiff's shifts helps to demonstrate Plaintiff's intent to improperly possess company property and to establish an absence of mistake on Plaintiff's part. Evidence that Plaintiff disagreed with the write ups and called Store Director Debra Collette a liar in connection with one of them also helps establish a motive for Plaintiff to allege that Ms. Collette made disparaging comments about him. Rule 404(b) is an "inclusionary rule" and should operate to exclude evidence only when the evidence "proves nothing but the defendant's criminal propensities." United States v. Diggs, 649 F.2d 731, 737 (9th Cir. 1981), overruled on other grounds by United States v. McConney, 728 F.2d 1195 (9th Cir. 1984). Courts are to consider four issues in deciding whether to admit evidence under Rule 404(b): (1) the evidence "must tend to prove a material point"; (2) "the other act must not be too remote in time"; (3) evidence of the prior act must be based on "sufficient evidence"; and (4) in some cases, but not all, the act "must be similar to the offense charged." United States v. Bibo-Rodriguez, 922 F.2d 1398, 1400 (9th Cir. 1991); see also United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 1993). These elements are met regarding the evidence of Plaintiff's past performance.
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A.

Evidence of Plaintiff's misuse of punch cards and missing pastries proves intent and the absence of mistake.

Evidence about Plaintiff's misuse of the punch card program, including giving unearned free drinks to customers, and the disappearance of pastries on his shifts, tends to prove that it was no mistake that Plaintiff had coffee and pastries in a bag with his personal items on June 9, 2003. It suggests that Plaintiff intended to possess company property that he should not have had on June 9, 2003. These prior acts are not remote in time. They occurred within a year of Plaintiff's discharge for improper possession of company property. See Arambula-Ruiz, 987 F.2d at 604 (even five years is not too remote). Evidence of the misconduct is primarily from the eyewitness accounts of Plaintiff's colleague Casey Tomlinson and Plaintiff's coffee bar supervisor Ed Koslow. Although Plaintiff signed the written warning notices, Plaintiff apparently disputes the allegations. He is free to do so at trial but that does not make the evidence inadmissible. There is a "low threshold" for what constitutes sufficient evidence of a prior act. United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002). Where there is a conflict among witnesses about whether the prior act occurred, the proper course is to let the jury weigh the evidence. See id.; see also United States v. Basinger, 60 F.3d 1400, 1408 (9th Cir. 1995) ("testimony by the searching and arresting officer is sufficient evidence that the prior act occurred"). Finally, the similarity of the prior acts to those on June 9, 2003 is striking. The disappearance of the pastries is of course a perfect match--Plaintiff was fired for taking pastries and coffee on June 9, 2003. Plaintiff's misuse of the punch card promotion is also sufficiently similar. It too is

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a form of improper possession of company property. Evidence of Plaintiff's misuse of the punch card program and the disappearance of pastries on his shift tends to prove Plaintiff's intent and to disprove that he was mistakenly accused. Therefore, the Court should deny Plaintiff's motion in limine. B. Evidence that Ms. Collette disciplined Plaintiff and that he disagreed with the discipline and called Ms. Collette a liar proves motive.

Plaintiff's credibility will play a major role at trial. Plaintiff claims that Ms. Collette made disparaging remarks about his religion. Defendant will call Plaintiff's testimony into question in part by establishing that Plaintiff has a motive to fabricate allegations against Ms. Collette. Plaintiff feels that Ms. Collette treated him unfairly when she disciplined him in writing in March 2002 and when she caused other written discipline against him in July 2002, in one instance prompting Plaintiff to write on the warning notice that Ms. Collette was "a liar." This evidence helps establish a motive for Plaintiff to make allegations against Ms. Collette and thus casts doubt on Plaintiff's credibility, a material issue. Plaintiff's allegation that Ms. Collette lied about him in July 2002 came less than a year before his termination and within months of his allegation that she remarked about having to count the till twice. See Pl's Decl. ¶ 9, attached as Ex. J (alleging that she did so between November 2002 and January 2003). The prior acts at issue here are not so much the actual disciplinary notices but Plaintiff's reaction to them, and as to this there is no dispute. Plaintiff apparently still denies

26 27 28 the underlying misconduct and thus presumably continues to hold the view that Ms. Collette lied about him or made false allegations against him. Some of the
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alleged acts, such as the a write up for refusal to clean the coffee bar and disagreeing with Ms. Collette in response, are not similar to the conduct that led to Plaintiff's firing, but they do not need to be similar to prove motive. See BiboRodriguez, 922 F.2d at 1400 n.1. Accordingly, the Court should deny Plaintiff's motion in limine. IV. The probative value of the evidence of Plaintiff's performance is not outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, or waste of time. To be excluded under Rule 403, the probative value of the evidence at issue must be "substantially outweighed" by other factors. Plaintiff claims admitting the evidence of his prior workplace misbehavior would cause "undue prejudice," lead to confusion of the issues, result in misleading the jury, and waste time at trial. (Pl's Mot. Limine Re: Past Alleged Performance Issues at 3.) Plaintiff does not explain his Rule 403 position, and in fact it is unfounded. The probative value of the evidence is not outweighed substantially (or at all) by any other factors. The evidence at issue is inconsistent with the image Plaintiff wants to present to the jury, but that does not mean Rule 403 should apply to exclude it. See Plummer v. Western Int'l Hotels, Co., 656 F.2d 502, 504 (9th Cir. 1981) (harmful evidence is not the same as unfairly prejudicial evidence). It is extremely unlikely that the evidence regarding Plaintiff's prior performance will confuse or mislead the jury about the issue it is empaneled to decide, namely, whether Plaintiff was a victim of religious discrimination. It is not a waste of time for the jury to have

26 27 28 before it evidence regarding Plaintiff's past performance. This evidence is important for the reasons explained herein, and it can be presented expediently.
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Conclusion Plaintiff's past performance is relevant because it tends to disprove the idea that Ms. Collette was searching for pretextual reasons to take adverse action against Plaintiff in June 2003. Plaintiff would have the Court gag Defendant from disputing that he was an excellent employee, but to do so would result in an incomplete presentation of the evidence. The evidence regarding Plaintiff's past on-the-job performance also shows Plaintiff's intent to improperly possess company property on June 9, 2003, it disproves his claim that his possession of the property was just a mistake, and it shows his motive to seek revenge against Ms. Collette. The evidence is unfavorable to Plaintiff, but it is not unfairly prejudicial, confusing, misleading, or wasteful. Defendant therefore respectfully requests that the Court deny Plaintiff's motion in limine. Dated this 8th day of September, 2005. Respectfully submitted, RODEY DICKASON SLOAN AKIN & ROBB, P.A.

/s/ Jeffrey L. Lowry Aaron C. Viets 201 Third St., Suite 2200 Albuquerque, New Mexico 87102 Attorneys for Defendants CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing Defendant Albertsons, Inc.'s Response to Plaintiff's Motion in Limine Re: Past Alleged Performance Issues was sent electronically on this 8th day of September, 2005 to all counsel of record.

By

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By:

/s/ Aaron C. Viets

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