Free Pretrial Order - District Court of Arizona - Arizona

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Case 2:03-cv-02268-NVW Document 107 Filed 10/14/2005 Page 1 of 21

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

The following is the joint Proposed Final Pretrial Order to be considered at the Final Pretrial Conference set for October 14, 2005 at 2:00 p.m. A. TRIAL COUNSEL FOR THE PARTIES Include mailing addresses, office phone numbers, fax numbers, and email addresses. Plaintiff: David C. Larkin ([email protected]) DAVID C. LARKIN, P.C. 4645 South Lakeshore Drive, Suite 6 Tempe, Arizona 85282 Telephone (480) 491-2900 Fax (480) 755-4825 Attorney for Plaintiffs

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Defendant: Thomas L. Stahl ([email protected]) (Application for admission pro hac vice pending) Jeffrey L. Lowry ([email protected]) Aaron C. Viets ([email protected]) (Messrs. Lowry and Viets will not be appearing personally at trial if Mr. Stahl's pending motion for admission is granted) 201 Third Street NW, Suite 2200 Albuquerque, NM 87102 (505) 765-5900 (phone) (505) 768-7395 (fax) STATEMENT OF JURISDICTION Jurisdiction is based on 28 U.S.C. § 1331. Jurisdiction is not contested. STIPULATIONS AND UNCONTESTED FACTS AND LAW A. The following material facts are admitted by the parties and require no proof: 1. Plaintiff was an employee of Albertsons (not Starbucks) at all material times until his discharge. 2. B. Defendant discharged Plaintiff from his employment.

The following material facts, although not admitted, will not be contested at trial by evidence to the contrary: None.

C.

The following issues of law are uncontested and stipulated by the parties: 1. Debra A. Collette is not a Defendant to the remaining cause of action.

CONTESTED ISSUES OF FACT AND LAW A. The following are material issues of fact to be tried and decided: Whether Defendant Discharged Plaintiff solely because of his religion. -2-

Issue 1:

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Plaintiff Contends: The evidence will show that Albertsons' manager discriminated against plaintiff. This is the factual issue of the case. The jury must decide whether his Albertsons' supervisor had a discriminatory animus that was the sole factor or a motivating factor in her decision to discharge him. She questioned him about his religion, whether he was Jewish, the first time she met him. She made religious comments that were offensive to plaintiff. She did not properly investigate the incident that led to his discharge. The discharge was excessive for the allegations. Defendant Contends: On June 9, 2003, Plaintiff had in his possession, with his personal items, three individually wrapped slices of cake that should have been on display for sale to Albertsons' customers and a pouch of store-owned coffee. Plaintiff had not purchased the cakes, and the coffee he possessed was not for retail sale. This conduct resulted in Plaintiff's suspension on June 9, 2003 and discharge a few days later. Plaintiff's religion played no role in this decision. Issue 2: Whether Plaintiff's religion was a motivating factor in Defendant's decision to discharge him. Plaintiff contends: The evidence will show that Albertsons' manager discriminated

against plaintiff. This is the factual issue of the case. The jury must decide whether his Albertsons' supervisor had a discriminatory animus that was the sole factor or a motivating factor in her decision to discharge him. She questioned him about his religion, whether he was Jewish, the first time she met him. She made religious comments that were offensive to plaintiff. She did not properly investigate the

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incident that led to his discharge. Even if the jury were to find that there was some basis for discipline, the discharge was excessive for the allegations, such that it was his Jewishness that motivated the discharge. Defendant contends: On June 9, 2003, Plaintiff had in his possession, with his personal items, three individually wrapped slices of cake that should have been on display for sale to Albertsons' customers and a pouch of store-owned coffee. Plaintiff had not purchased the cakes, and the coffee he possessed was not for retail sale. This conduct resulted in Plaintiff's suspension on June 9, 2003 and discharge a few days later. Plaintiff's religion played no role in this decision. Issue 3: If Plaintiff's religion was a motivating factor in Defendant's decision to discharge him, was Defendant's decision also motivated by a lawful reason? Plaintiff contends: The evidence will show that Albertsons' manager discriminated

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against plaintiff. This is the factual issue of the case. The jury must decide whether his Albertsons' supervisor had a discriminatory animus that was the sole factor or a motivating factor in her decision to discharge him. She questioned him about his religion, whether he was Jewish, the first time she met him. She made religious comments that were offensive to plaintiff. She did not properly investigate the incident that led to his discharge. Even if the jury were to find that there was some basis for discipline, the discharge was excessive for the allegations, such that it was his Jewishness that motivated the discharge.

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Defendant contends: On June 9, 2003, Plaintiff had in his possession, with his personal items, three individually wrapped slices of cake that should have been on display for sale to Albertsons' customers and a pouch of store-owned coffee. Plaintiff had not purchased the cakes, and the coffee he possessed was not for retail sale. This conduct resulted in Plaintiff's suspension on June 9, 2003 and discharge a few days later. Plaintiff's religion played no role in this decision. Issue 4: Whether Defendant would have made the same decision to discharge Plaintiff even if the plaintiff's religion had played no role in the defendant's decision to discharge him? Plaintiff contends: Again, the evidence will show that the events were not sufficient

to justify termination of plaintiff's employment and no reasonable investigation was carried out to justify the severe discipline of termination such that plaintiff contends that the evidence will show that defendant would not have made the same decision to discharge plaintiff. Defendant contends: On June 9, 2003, Plaintiff had in his possession, with his personal items, three individually wrapped slices of cake that should have been on display for sale to Albertsons' customers and a pouch of store-owned coffee. Plaintiff had not purchased the cakes, and the coffee he possessed was not for retail sale. This conduct resulted in Plaintiff's suspension on June 9, 2003 and discharge a few days later. Plaintiff's religion played no role in this decision.

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Issue 5:

Whether Plaintiff suffered consequential damages from his discharge from employment and, if so, the amount of the damages.

Plaintiff Contends: He suffered consequential damages, including the value of lost wages, and other employment benefits, emotional distress. The amount of the economic damages are the amount of wages lost up to the time of trial. The amount of the emotional distress damages is a jury question to be determined from the evidence presented at trial. Defendant Contends: Plaintiff suffered no damages that are the fault of Defendant. Issue 6: The amount of punitive damages to be awarded to plaintiff.

Plaintiff Contends: The jury must decide whether Albertsons willfully or with reckless disregard discharged Mr. Silverman. See Model Instruction No. 7.5.

Defendant Contends: Plaintiff is not entitled to any damages, including punitive damages, and the evidence does not support even an instruction to the jury on this matter. B. Issues of Law to be Decided.

Plaintiff contends that there are none at this time although some of the factual issues above have legal issues for which the jury instructions will provide guidance to the jury in making the factual determinations. Defendant contends that there are none at this time, although some of the factual issues above implicate legal issues for which the jury instructions will provide guidance to the jury in making its factual determinations. Each party shall file a short trial brief on all contested issues of law contemporaneously with the filing of the Proposed Final Pretrial Order.

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E.

LIST OF WITNESSES Plaintiff's witnesses: Will call: 1. Lewis Silverman, fact witness, He will testify about the relevant facts

of his claim for religious discrimination, and about his damages. 2. Cynthia Silverman, fact witness, She will testify regarding her

observations of Mr. Silverman's emotional distress, plaintiffs' economic damages, and the fact that the Silverman's do not brew Starbucks Coffee at their home, and the brands that she does brew. 3. James Metcalf, by deposition testimony (not within 100 miles of the

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Court), former Starbucks coffee bar manager, his testimony regarding the coffee bar policy for out-of-date pastries will be read to the jury, and regarding the failure of Albertsons to inquire about the policy during its investigation of Lewis Silverman. 4. Leonard Wise, fact witness, he will testify regarding policies and

practices at the Starbucks coffee bar at the Albertsons' store. 5. Craig Columbus, fact and lay opinion witness, Albertsons' customer

who will testify regarding his observations and lay opinions of Mr. Silverman's work at the coffee bar at Albertsons. 6. Janice Blair, fact and lay opinion witness, Albertsons' customer who

will testify regarding his observations and lay opinions of Mr. Silverman's work at the coffee bar at Albertsons.

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(Defendant objects to the proposed testimony of Mr. Columbus and Ms. Blair (witnesses 5 and 6, above) on the grounds that their proposed testimony ­ whether Plaintiff was a good barista from a customer's standpoint ­ is irrelevant to the issues presented in this case.) 7. subpoenaeable, Gregory Joines, fact witness, will testify, by deposition testimony if not regarding Starbucks and his relationship with Albertsons and Mr.

Silverman and his reporting of Mr. Silverman to Albertsons' management. May call: 7. Debra A. Collette, fact witness, Plaintiff may provide her testimony by

deposition as necessary. Unlikely to call: 8. Casey Tomlinson, possible rebuttal fact witness. Plaintiff may provide

Mr. Tomlinson's deposition testimony regarding company polices and other facts as necessary. 9. Deborah Horak, possible rebuttal fact witness. Plaintiff may provide

Ms. Horak's deposition testimony about company policies and the allegations against Mr. Silverman for violation of those policies. 10. rebuttal. Defendant's witnesses: Will call: Any or all of defendants' other witnesses as may be necessary for

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1.

Debra A. Collette, fact witness. Ms. Collette is expected to testify about

company policies, Plaintiff's job history and performance, Plaintiff's religion discrimination allegation, and the reason for Plaintiff's suspension and termination. 2. Gregory S. Joines, fact witness. Mr. Joines is expected to testify about

his observations of Plaintiff at the coffee bar in June 2003 and perhaps other on other occasions. 3. Edward Koslow, fact witness. Mr. Koslow is expected to testify about

Plaintiff's job history and performance, Albertsons' company polices, Plaintiff's religion discrimination allegation, and his observations of Plaintiff. 4. Kenneth J. Cetro, fact witness. Mr. Cetro is expected to testify about

company policies, Plaintiff's job history and performance, Plaintiff's religion discrimination allegation, and the reason for Plaintiff's suspension and termination. 5. Casey Tomlinson, fact witness. Mr. Tomlinson is expected to testify

about Plaintiff's job history and performance, company polices, Plaintiff's religion discrimination allegation, and his observations of Plaintiff. May call: 1. 2. Plaintiff. Deborah Horak, fact witness. Ms. Horak may testify about Plaintiff's

job history and performance and Plaintiff's religion discrimination allegation. 3. Leonard Wise, fact witness. Mr. Wise may testify about company

policies and Plaintiff's job history and performance.

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4.

Benjamin Willis, fact witness. Mr. Willis may testify about company

policies and Plaintiff's job history and performance. 5. CaSaundra Holt, fact witness. Ms. Holt may testify about the timing

and investigation of Plaintiff's allegations of religion discrimination. Unlikely to be called: 1. Cynthia Silverman, fact witness. Ms. Silverman may testify about

Plaintiff's damages. Note: Defendant objects to Plaintiff's attempt to call Gregory Joines, Casey Tomlinson, Deborah Horak, and any other witness on his witness list by deposition. If Plaintiff wants these witnesses to testify on his behalf, he should procure them for live testimony in open court. Fed. R. Civ. P. 43. The factors under Federal Rule of Civil Procedure 32(a) for offering witness testimony by deposition are not present, and Plaintiff has made no showing to the contrary. See In re Ashley, 903 F.2d 599, 603 (9th Cir. 1990). Plaintiff also has not designated those portions of the deposition transcripts that he intends to offer for these witnesses. Defendant reserves the right to make additional objections regarding transcript admissibility if or when Plaintiff does so, to make counter-designations under Rule 32(a)(4), and to object that Plaintiff's transcript designations are untimely. LIST OF EXHIBITS A. The following exhibits are admissible in evidence and may be marked in evidence by the Clerk:

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Ex. No. 1 2 3 4

Description of Exhibit Employee Status Report - Lewis Silverman Alb-00073-74 Albertson's Inc. - Warning Notice - Silverman - 6/9/03 Alb-00124 Albertson's Inc. - Warning Notice - Silverman - 6/17/03 Alb-00062 Albertsons' Retirement Savings Statement - Lewis Silverman - PS 001150-51

5 B.

Albertsons' Equal Opportunity Policy - PS 001032 As to the following exhibits, the parties have reached the following stipulations: C. As to the following exhibits, the party against whom the exhibit is offered is to be offered objects to the admission of the exhibit and offers the objection stated below:

PLAINTIFF'S EXHIBITS: Ex. No. 6 7 Description of Plaintiff's Exhibit Silverman Albertsons' Employee History Alb-00070-71 Albertsons Associate Hotline In-Take and Investigation Form - Alb00135­039 July 14, 2003 Blair Letter to Albertsons - Alb 00148 Defendant's Objections Relevance 402, Hearsay 801-02 Relevance 402, Hearsay 801-02, Relevance 402, Hearsay 801-02, Confusion of the issues and cumulative 403, Character evidence 404 Relevance 402, Hearsay 801-02, Confusion of the issues 403, Character evidence 404

8

9

Chris Columbus Letter to Albertsons - Alb-00149

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July 22, 2003 Goldman Letter to Albertsons - Alb-00150

Relevance 402, Hearsay 801-02, Confusion of the issues 403, Character evidence 404 Relevance 402, Hearsay 801-02, Confusion of the issues 403, Character evidence 404 Relevance 402, Hearsay 801-02, Cumulative and Confusion of the issues 403, Character evidence 404 Relevance 402, Hearsay 801-02 Relevance 402, Hearsay 801-02 Relevance 402, Confuse Jury 403, Hearsay 801-02 Relevance 402, Confuse Jury 403, Hearsay 801-02, Lack of foundation Relevance 402, Confuse Jury 403, Hearsay 801-02, Lack of foundation Relevance 402, Confuse Jury 403, Hearsay 801-02, Lack of foundation, Lack of authenticity 901 Relevance 402, Confuse Jury 403, Hearsay 801-02, Lack of foundation, Lack of authenticity 901

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August 12, 2003 Petrzelka Letter to Albertsons - PS 001087

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Albertsons' Customer Service email to Dr. Blair - June 16, 2001 - Alb00151

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6/24/03 Silverman faxed letter to Albertsons - Alb-00178-189 6/13/03 Silverman faxed letter to Cassandra Holt - PS 001090-91 Application for Employment - Coffee Plantation - PS 001133-34 Application for Employment Starbucks - PS 1135-37 Application for Employment Seattle's - PS 001138-1140 Application for Employment - World Market - PS 001142-1143

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18

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Application for Employment - WalMart - PS 001144-1147

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Arizona Superior Court Docket Statement - Debra A. Collette-Toleu Eastman

Relevance 402, Confuse Jury 403, Hearsay 801-02, Lack of foundation/personal knowledge 602, Lack of authenticity 901, Inadmissible as public record 1005, Inadmissible as summary 1006 Relevance 402, Hearsay 801-02 Relevance 402, Confuse jury 403, Character evidence 404, Lack of foundation/personal knowledge 602, Lack of authenticity 901 Relevance 402, Confusion of the Issues and Mislead the Jury 403, Lack of authenticity 901, Undisclosed (FRCP 37(c)), Not disclosed at courtordered exhibit exchange meeting ­ Defendant reserves the right to lodge additional objections when Plaintiff provides Defendant with the exhibit

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Declaration of Leonard Wise - PS 001148-49 4/21/2003 - Starbucks Customer Service Snapshot Report on Lewis Silverman

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Agreement between Albertsons and Starbucks

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DEFENDANT'S EXHIBITS: Ex. No. 24 25 Description of Defendant's Exhibit 6/9/03 Photos of Contents of Bag - 2 Hotline Poster Alb-00009 Plaintiff's Objections Relevance 402, Prejudicial 403, Foundation Relevance 402, Prejudicial 403, Hearsay 803, Foundation Relevance 402, Waste of Time, Confuse Jury, Prejudicial 403, Hearsay 803, Foundation Relevance 402, Waste of Time, Confuse Jury, Prejudicial 403, Hearsay 803, Foundation Relevance 402, Confuse Jury, Prejudicial 403, Hearsay 803, Foundation, inadmissible opinion, Subject to Plaintiff's Motion in Limine Relevance 402, Confuse Jury, Prejudicial 403, Hearsay 803, Foundation, inadmissible opinion, Subject to Plaintiff's Motion in Limine Relevance 402, Confuse Jury, Prejudicial 403, Hearsay 803, Foundation, inadmissible opinion, Subject to Plaintiff's Motion in Limine

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Non-Discrimination Acknowledgment Form signed by Silverman - Alb00011 Albertsons Company Personnel Policies Acknowledged by Silverman - Alb 00021 Albertson's Inc. - Warning Notice Silverman - 3/18 & 19/02 Alb-00075

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Albertson's Inc. - Warning Notice Silverman - 7/21/02

Statement of Deborah Horak 7/21/02 Incident - Alb-00033

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Albertson's Inc. - Warning Notice Silverman - 7/8/02-7/21/02

Relevance 402, Confuse Jury, Prejudicial 403, Hearsay 803, Foundation, inadmissible opinion, Subject to Plaintiff's Motion in Limine Relevance 402, Waste of Time, Confuse Jury, Prejudicial 403, Hearsay 803, Foundation, inadmissible opinion, Subject to Plaintiff's Motion in Limine Relevance 402, Waste of Time, Confuse Jury, Prejudicial 403, Hearsay 803, Foundation, inadmissible opinion, Subject to Plaintiff's Motion in Limine Relevance 402, Waste of Time, Confuse Jury, Prejudicial 403, Hearsay 803 Relevance 402, Confuse Jury, Prejudicial 403, Hearsay 803, Foundation, inadmissible opinion Relevance 402, Waste of Time, Confuse Jury, Prejudicial 403, Hearsay 803, Foundation, Subject to Plaintiff's Motion in Limine

32

August 27, 2003 EEOC Dismissal and Notice of Suit Rights - Alb-00059

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August 27, 2003 EEOC Dismissal of Charge

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1999 Silverman Note - Alb 00067

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6/16/03 Cetro Statement - Alb-00122

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Coffee Shop Punch Cards

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4 Notes from Silverman re: Punch Cards

Relevance 402, Waste of Time, Confuse Jury, Prejudicial 403, Hearsay 803, Foundation, Subject to Plaintiff's Motion in Limine Relevance 402, Waste of Time, Confuse Jury, Prejudicial 403, Hearsay 803, Subject to deposition objection for Improper Deposition Question and Answer, Foundation Rule 37 Undisclosed photos prior to 9/2/05, Relevance 402, Waste of Time, Confuse Jury, Prejudicial 403, Hearsay 803, Foundation

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Hand-written chart from Deposition

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Recent Photos of Coffee Shop

Each party hereby acknowledges by signing this joint Proposed Final Pretrial Order that any objections not specifically raised herein are waived. G. DEPOSITIONS TO BE OFFERED Plaintiff may offer the following: Gregory Joines (if not within 100 miles or not subpoenaeable for trial) ­ Pages 5:22 to 13:13; 17:3 to 17:11; 47:12 to 52:11; 55:24 to 56:6 James Metcalf (lives more than 100 miles from the place of the trial) ­ Pages 4:9 to 4:11; 8:4 to 13:1; 15:3 to 18:5; 29:19 to 30:10; 30:15 to 31:20. (Defendant objects to the introduction of pages: 12:25 to 13:1 as irrelevant and unnecessary; 15:17 to 15:24 as non-responsive; 15:25 to 16:9 as irrelevant and confusing

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colloquy of counsel; and 30:15 to 31:20 as incomplete without the addition of 30:11 to 30:14.) Deborah Collette (defendant's managing agent during the time the material events occurred) ­ Pages 42:15 to 44:2 (Defendant objects to the designation of 42:21 to 44:2 on the grounds that it seeks to introduce irrelevant, speculative, confusing and potentially prejudicial evidence of Plaintiff's divorce from her Jewish husband. Plaintiff's speculative theory is that Ms. Collette's divorce embittered her against Jewish men. (See Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment, p. 11.) There is no factual basis for this theory and it raises entirely unrelated issues related to stereotypical attitudes towards divorced women. Pursuant to Rules 401 and 403, the Court should not allow Plaintiff to confuse and possibly inflame the jury in this way.) Defendant: Gregory Joines (if allowed by Rule 32 and offered by Plaintiff) ­ 56:14 to 56:24 James Metcalf (if allowed by Rule 32 and offered by Plaintiff) ­ 23:1 to 23:3; 23:5 to 25:3; 25:21 to 26:11; 26:13 to 26:18; 27:1 to 27:12; 27:14 to 28:6; 28:8 to 29:15. Note: Defendant objects to Plaintiff's planned attempt to call Gregory Joines, Casey Tomlinson, Deborah Horak, and any other witness on his witness list by deposition. If Plaintiff wants these witnesses to testify on his behalf, he should procure them for live testimony in open court. Fed. R. Civ. P. 43. The factors under Federal Rule of Civil

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Procedure 32(a) for offering witness testimony by deposition are not present, and Plaintiff has made no showing to the contrary. See In re Ashley, 903 F.2d 599, 603 (9th Cir. 1990). Note: Plaintiff's counsel has been in trial in Judge Martone's court this week when defendant made its deposition designations on September 20, 2005. Trial ends September 22, 2005. Plaintiff's counsel reserves the right to file objections to defendant's deposition designations and will make objections, if any, on or before Monday, September 26, 2005. H. MOTIONS IN LIMINE Pending. I. LIST ALL PENDING MOTIONS Plaintiff's three motions in limine. J. PROCEDURES FOR EXPEDITING TRIAL The parties believe trial can be expedited with evidentiary stipulations and by using the courtroom technology to present evidence. K. ESTIMATED LENGTH OF TRIAL 2 hours for opening statements and closing arguments 10 hours for Plaintiff's case, including cross-examination of other parties' witnesses 12 hours for Defendant's case, including cross-examination of other parties witnesses 2 hours for Plaintiff's rebuttal

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TOTAL ESTIMATED TIME: 26 hours JURY DEMAND The parties stipulate that the request was timely and properly made. JOINT STATEMENT OF THE CASE To be filed in accordance with the Court's July 5, 2005 Order. JOINT PROPOSED VOIR DIRE QUESTIONS To be filed in accordance with the Court's July 5, 2005 Order. PROPOSED JURY INSTRUCTIONS To be filed in accordance with the Court's July 5, 2005 Order. PROPOSED FORMS OF VERDICT To be filed in accordance with the Court's July 5, 2005 Order. DISAGREEMENTS ABOUT PROPOSED STATEMENTS, VOIR DIRE,

INSTRUCTIONS, OR FORMS OF VERDICT If the parties disagree about any of the proposed statements, voir dire questions, jury instructions, or forms of verdict, the party in favor of the proposal shall set it forth in the joint pleading and the party opposing it shall state the reason for the objection and offer an alternative proposal. FORMAT OF SUBMISSIONS The joint statement of the case, proposed voir dire questions, proposed jury instructions, and forms of verdict shall be submitted in WordPerfect 9.0 format either by email to [email protected] or on an IBM-PC compatible disk.

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S.

CERTIFICATIONS The undersigned counsel for each of the parties in this action does hereby certify

and acknowledge the following: 1. 2. C. All discovery has been completed. The identity of each witness has been disclosed to opposing counsel. Each exhibit listed herein: (1) is in existence; (2) is numbered; and (3) has been disclosed to opposing counsel. D. The parties have complied in all respects with the mandates of the Court's Rule 16 Scheduling Order and Order Setting Final Pretrial Conference. E. The parties have made all of the disclosures required by the Federal Rules of Civil Procedure (unless otherwise previously ordered to the contrary.) F. The parties acknowledge that once this Proposed Final Pretrial Order has been signed and lodged by the parties, no amendments can be made without leave of Court. T. INFORMATION FOR COURT REPORTER In order to facilitate the creation of an accurate record, please file a "Notice to Court Reporter" one week before trial containing the following information that may be used at trial: G. H. I. Proper names, including those of witnesses Acronyms Geographic locations

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J. K.

Technical (including medical) terms, names, or jargon Case names and citations.

Please also send (or transmit electronically) to the court reporter a copy of the concordance from key depositions.

Electronically Approved 9/21/05 David C. Larkin Attorney for Plaintiff Based on the foregoing:

/s/ Jeffrey L. Lowry Jeffrey L. Lowry Attorney for Defendant

IT IS ORDERED that this Proposed Final Pretrial Order jointly submitted by the parties is hereby APPROVED and ADOPTED as the official Pretrial Order of this Court. DATED this 14th day of October, 2005.

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