Free Motion in Limine - District Court of Arizona - Arizona

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Georgia A. Staton, Bar #004863 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7854 [email protected] Attorneys for Defendants, Pinal County and Roger Vanderpool as Sheriff of Pinal County UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Robert Gant and Betty Gant, husband and wife, Plaintiffs, v. Roger Vanderpool, Sheriff of Pinal County; Pinal County, a political subdivision; John Does and Jane Does I-X; ABC Corporations IX; and XYZ Partnerships I-X, Defendants. I. PLAINTIFFS' MOTION IN LIMINE IS UNTIMELY Preliminarily, Defendants move to strike Plaintiffs' Motion in Limine for untimeliness. This Court's Order required that all Motions in Limine be filed on or before 30 days prior to trial (scheduled for July 11, 2006). This made the deadline June 12, 2006. Plaintiff's Motion in Limine was not filed until June 15, 2006. The Court should not consider the untimely filed motion. II. PLAINTIFFS' MOTION FOR AN ORDER IN LIMINE IS UNCLEAR. Plaintiffs simply ask this Court for an Order precluding any testimony by Defendants regarding disciplinary actions Defendants took against Plaintiff Robert Gant (Motion at 1). Plaintiff does not enlighten Defendants or the Court as to precisely what NO. CV 03-2077-PHX-EHC DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION IN LIMINE RE: TESTIMONY OF DISCIPLINARY ACTIONS BY DEFENDANTS AGAINST PLAINTIFF ROBERT GANT

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disciplinary actions Plaintiff is moving to preclude. At a minimum, Plaintiff should identify every disciplinary action to which his motion applies. As it currently stands, this Court and undersigned counsel are simply left to guess. III. PLAINTIFF'S DISCIPLINE IS RELEVANT TO DEFENDANTS' LEGITIMATE, NON-DISCRIMINATORY REASON FOR TERMINATING HIM Assuming that the disciplinary action to which Plaintiff is referring is his February 8, 2002 termination from the Pinal County Sheriff's Office for lying on his timesheets,1 then Plaintiffs' suggestion that the termination is irrelevant makes no sense (Motion at 2). First, Plaintiff himself has previously argued that his February 8, 2002 termination was relevant to the issue of discrimination. When Defendants moved for summary judgment, they asserted that Plaintiff's claim of discrimination based on his February 8, 2002 termination was untimely and barred by the statute of limitations. In Response, Plaintiff contested that assertion, and identified the February 8, 2002 termination as evidence of Defendants' alleged improper conduct (see his Response at 10). This Court, in its

February 15, 2005 Order (at 5), acknowledged Plaintiff's allegation that the February 8, 2002 termination was one of four separate events comprising Defendants' alleged discriminatory acts; and the Court ruled that they were timely alleged (see Order at 6). Having found that the February 8, 2002 termination was timely alleged, the Court noted that while Plaintiff had the burden of establishing a prima facia case, the burden of production shifted to Defendants to articulate legitimate non-discriminatory reasons for the employment action (see Order at 9). Defendants, now faced with Plaintiff's allegation that his February 8, 2002 termination was discriminatory, clearly have the right to explain ­ and in fact have the burden of explaining -- their legitimate, non-discriminatory reasons for terminating Plaintiff ­ i.e., not because of Plaintiff's race or age, but because he lied on
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If Plaintiff is referring to some other kind of discipline, then the Court should require Plaintiff to identify what that other disciplinary action is. Until further clarification is made, Defendants cannot respond further.
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his timesheets. He claimed he was working on Thanksgiving 2001 when, in fact, he spent the time at home celebrating with his family.2 In short, Plaintiff himself argued long ago that his termination was relevant ­ in fact was part of ­ the Defendants' discriminatory conduct in this case. He cannot now claim that it is irrelevant so as to avoid having the jury hear about his discipline. Second, in addition to arguing at the summary judgment stage that the termination was a discriminatory act, Plaintiff also requested permission from the Court to allege a hostile work environment, which was granted. Count IV of Plaintiffs' Amended

Complaint identifies those acts which Plaintiff claims comprised a hostile work environment; and at Paragraph 40, Plaintiff reasserts as one of the elements of a hostile work environment that he was terminated on February 8, 2002. Defendants cannot be put in the position of having to defend against a claim that Plaintiff's termination on February 8, 2002 was part of a racially hostile work environment without being allowed to explain why Plaintiff was terminated. And Plaintiff's discipline for lying on his timesheets is directly relevant to why Plaintiff was terminated. In short, Plaintiff cannot claim that his termination was relevant only when he wants it to be, and not when Defendants want it to be.3 IV. THE EVIDENCE IS NOT UNFAIRLY PREJUDICIAL. Plaintiff now argues that evidence of disciplinary action taken against him is prejudicial because it "casts [him] in a bad light" and would cause the jurors to focus on

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Plaintiff also claimed a higher "shift differential pay" for allegedly working nighttime hours when, in fact, he was simply celebrating with his family. If Plaintiff is now taking the position that (1) he is not alleging that he was terminated on February 8, 2002 for any improper reason, e.g., age or race; and (2) that his termination forms no part of his hostile work environment claim, and (3) that his termination will not be mentioned by his expert witness, then, and only then, would the February 8, 2002 termination be irrelevant.
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"whether there was a causal connection between the disciplinary action taken by Defendants against Robert Gant and failing to promote him," which is not a claim he has made in this case (Motion at 3). Plaintiff misunderstands the crux of the case. It is not whether he is claiming a connection between his discipline and his failure to be promoted. It is whether Plaintiff's termination was a discriminatory act or subjected him to a hostile work environment. He has alleged that his termination was one of four discrete

discriminatory events, and that it also was an element of his hostile work environment. In light of these accusations, Defendants are entitled to show that his termination was not a discriminatory act, that Plaintiff's having lied on his timesheets was a legitimate, nondiscriminatory reasons for the termination, and that Plaintiff was not subject to a hostile work environment. Plaintiff's fear that the evidence of discipline will place him in a "bad light" before the jurors is understandable, but is not a reason to preclude the evidence. Rule 403 does not preclude evidence that simply hurts a party's case. See U.S. v. Davis, 449 F.3d 842, 846 (8th Cir. 2006) (Evidence is not unfairly prejudicial merely because it hurts a party's case); United States v. Henderson, 416 F.3d 686, 693 (8th Cir.2005) (same); Dollar v. Long Mfg., N. C., Inc., 561 F.2d 613, 618 (5th Cir. 1977) (" `[U]nfair prejudice' as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial or it isn't material. The prejudice must be `unfair'"); United States v. Munoz, 36 F.3d 1229, 1233 (1st Cir. 1994) ("The damage done to the defense is not a basis for exclusion; the question under Rule 403 is `one of "unfair" prejudice-not of prejudice alone'"). In short, Plaintiff has not shown that evidence of his discipline is unfairly prejudicial under Rule 403.

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CONCLUSION Defendants respectfully request the Court to deny Plaintiffs' motion in limine. DATED this 29TH day of June, 2006. JONES, SKELTON & HOCHULI, P.L.C.

BY s/Georgia A. Staton Georgia A. Staton 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants, Pinal County and Roger Vanderpool as Sheriff of Pinal County Original e-filed and copies of the foregoing mailed this 29th day of June , 2006, to: Hon. Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, SPC 48 Suite 521 Phoenix, AZ 85003-2151 602-322-7530 Robert M. Gregory, Esq. LAW OFFICE OF ROBERT M. GREGORY, P.C. 1920 South Alma School Road Suite A-115 Mesa, AZ 85210 Attorney for Plaintiffs 480-839-4711 FAX: 480-452-1753 E-mail: [email protected] s/Gwen Coon

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