Free Motion in Limine - District Court of Arizona - Arizona

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Georgia A. Staton, 004863 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 (602) 263-1752; (602) 263-7365 [email protected] Attorneys for Defendants

5 UNITED STATES DISTRICT COURT 6 DISTRICT OF ARIZONA 7 8 9 10 11 12 13 Defendants. 14 15 16 17 18 19 20 21 22 Plaintiffs make an off-the-cuff suggestion that Defendants only "recently" 23 disclosed videotapes of Robert Gant's and others' performance on the June 11-13, 2001 24 Assessment Center examination (Motion at 1). The suggestion is spurious. More than 25 a year ago, on June 8, 2004, Defendants provided Plaintiffs over 400 pages of documents 26 pertaining to the Assessment Center examination, specifically noting the existence of I. PLAINTIFFS' MOTION IS UNTIMELY. Preliminarily, Defendants move to strike Plaintiffs' Motion in Limine for untimeliness. This Court's Order required all Motions in Limine to be filed on or before 30 days prior to trial (scheduled for July 11, 2006). This made the deadline June 12, 2006. Plaintiffs did not file their Motion in Limine until June 15, 2006. The Court should not consider the untimely motion. II. DEFENDANTS HAVE REPEATEDLY DISCLOSED VIDEOTAPES AND MATERIAL GENERATED BY THE ASSESSMENT CENTER Robert Gant and Betty Gant, Husband and Wife, v. NO. CV 03-2077-PHX-EHC

Plaintiffs, DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION IN LIMINE RE: EVIDENCE OF PERFORMANCE BY Roger Vanderpool, Sheriff of Pinal PLAINTIFF ROBERT GANT County; Pinal County, a political AND OTHER PERSONS ON THE subdivision; John Does and Jane Does IASSESSMENT CENTER X; ABC Corporations I-X; and XYZ EXAMINATION Partner-ships I-X,

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videotapes of the Oral Board testing for Gant and others (see Ex. 1, item Nos. 16, 17, 18 and 19 ­ notifying Plaintiffs' counsel that HI8 videotapes of the Oral Board testing were available for inspection at undersigned counsel's office). Defendants then filed a formal disclosure on November 8, 2005 disclosing the existence of the Assessment Center tapes (see Ex. 2). Six weeks later, because Plaintiffs' counsel had never asked to review the videotapes (despite having been physically present in undersigned counsel's office on May 24, 2004 and July 14, 2004), undersigned counsel's legal assistant e-mailed Plaintiffs' attorney on December 28, 2005 asking if he would like copies of the Assessment Center videotapes at a cost of $800 or if he would prefer to view them first and select only specific tapes. Plaintiffs' counsel never responded (see Ex. 3). Finally, out of an abundance of caution, when Defendants formally responded to Plaintiffs' Second Request for Production, they again referenced the tapes and noted that Plaintiffs' counsel never requested the opportunity to review them or asked for copies (see Ex. 4). Plaintiffs' counsel could have requested copies of the videotapes at any time over the past two years or reviewed them in the undersigned's office and never did anything in that regard. As part of the Court's requirement that all exhibits be exchanged prior to trial, undersigned counsel provided CD's of the videotapes previously described. Plaintiffs' counsel has been on notice for over two years that Defendants intended to use videotapes of the participants' performance in the Assessment Center. The choice of Plaintiffs' counsel not to examine these videotapes does not translate into a lack of disclosure. III. EVIDENCE OF WHAT TRANSPIRED AT THE ASSESSMENT CENTER IS RELEVANT TO PLAINTIFF'S CLAIM OF DISCRIMINATION. Plaintiff claims that he was discriminated against when he was not promoted

23 to the rank of lieutenant in or about June 2001. That test for promotion included the 24 25 26 2 Case 2:03-cv-02077-EHC Document 101 Filed 06/29/2006 Page 2 of 6

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Assessment Center. 1 Plaintiffs argue that any testimony or videotape regarding Robert Gant's performance at the Assessment Center is irrelevant (Motion at 2). They suggest that "how he performed" is not relevant to whether Defendants intentionally discriminated against him in failing to promote him, because he is not challenging "the format, content or results" of the Assessment Center (Id.). The suggestion is a bit silly. That is precisely what he is doing. In Count IV of his Amended Complaint at Paragraph 38, Plaintiff specifically alleges that Defendants denied him a promotion on the basis of a newly instituted assessment process. He claims that he was subjected to a hostile work environment, in part, because of the institution of the Assessment Center and was, thus, discriminated against. Plaintiff specifically alleges that he was "denied promotion by the Defendants on the basis of the Assessment Center." Plaintiff is simply wrong in suggesting that the format, content or results of the Assessment Center is not relevant. Only now does Plaintiff, for the first time, contend that Defendants discriminated against him based on "how and when" the Assessment Center was administered, not on the "results, format or content" of such tests (Motion at 2). Not only is the position contrary to his complaint's allegations noted above, but it makes no sense. This case is not about "how and when" the Assessment Center was administered. It's about why Plaintiff was not promoted. If Plaintiff wants to argue it was due to "how and when" the Assessment Center was administered, that is his prerogative. But Defendants are certainly entitled to demonstrate via the videotapes and Plaintiff's written work product

The Assessment Center was a two day hands-on process by the applicants. They were given an "in basket" exercise which required them to demonstrate their ability to prioritize tasks typical of a lieutenant in the Pinal County Sheriff's Office. They also were required to make a presentation to the Assessment Board regarding the timely topic of "Regionalization of the Pinal County Sheriff's Office." A third component consisted of demonstrating their ability to deal with the public as well as demonstrate their ability to interact productively with colleagues. All but the "in basket" component were videotaped. 3

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that, in truth, he failed abysmally at every part of the examination. This is the real reason Plaintiffs want to prevent the jury from actually seeing the quality of Plaintiff's performance. They want the jury to simply assume that Plaintiff performed well on the Assessment Center. The videotapes are not only relevant, but they are probably some of the most relevant evidence in this case. IV. THE EVIDENCE IS NOT UNDULY PREJUDICIAL Plaintiff argues that even if the evidence is relevant under Rule 401, the danger of unfair prejudice outweighs its relevance under Rule 403 (Motion at 2-3). This is nonsense. Plaintiffs' only argument in this regard is that the evidence "casts him in a bad light" and would lead the jury to "draw conclusions about Robert Gant" (Motion at 3). In essence, they do not argue that the evidence is unfairly prejudicial, but rather, that it simply hurts their case. This is not an appropriate basis on which to exclude evidence. See U.S. v. Davis, 449 F.3d 842, 846 (8 th 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 (5 th 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 (1 st 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'"). Plaintiffs err in suggesting that it would be prejudicial for the jurors to assess Gant's performance because his performance has no bearing on the case (Motion at 3). As is noted earlier, the performance of Robert Gant and others have a direct bearing on why Plaintiff was not promoted ­ due to either intentional discrimination in the administration of the Assessment Center, or his abysmal performance. The videotapes

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of the participants, the evidence of Plaintiff's work product, and the testimony of how the Assessment Center was administered is all directly probative of this central issue in the case. To make its decision, the jury needs to hear testimony from Sam Weiss, the facilitator of the Assessment Center who can describe how the Assessment Center was established, why the components were selected for the Assessment Center, the manner in which the Assessment Center was administered and his observations of the performance of each of the participants. To make its decision, the jury needs to watch Robert Gant's performance and the performance of the other participants so that they can determine whether the Defendants intentionally discriminated against Robert Gant or whether the playing field was level for all participants and Robert Gant was simply found wanting. Allowing the jury to view the videotapes of the participants performing the Assessment Center and listening to testimony regarding its administration would not mislead the jury (Motion at 3). It will enlighten them as to the process and the reasons Robert Gant was not promoted. And if Robert Gant is cast in a bad light, as Plaintiffs suggest (Motion at 3), then it will only be because his performance in the Assessment Center was sorely lacking, not because of his race or age. For these reasons, the Court should not preclude Defendants from offering evidence of Robert Gant's and the other candidates' performance on the Assessment Center. RESPECTFULLY SUBMITTED 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

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ORIGINAL of the foregoing e-filed this 29 th day of June, 2006 with: Clerk of the U.S. District Court District of Arizona COPY of the foregoing mailed this 29 th 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. 1930 South Alma School Road Suite A-115 Mesa, AZ 85210 480-839-4711 Attorney for Plaintiffs

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Case 2:03-cv-02077-EHC