Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) Plaintiff, ) ) ) v. ) REGIS CORPORATION; SUPER ) CUTS, ) ) Defendants. ) ) _________________________________ _) MARY CSANYI, a single woman,

No. CV 03-1987 PHX JAT PROPOSED FINAL PRETRIAL FORM OF ORDER

The following is the lodged joint Proposed Final Pretrial Order to be considered at the Final Pretrial Conference set for January 17, 2006, at 10:00 a.m., at 10:00 a.m. A. COUNSEL FOR THE PARTIES. Defendant: Ronald Stolkin FENNEMORE CRAIG One South Church Avenue, Suite 100 Tucson, Arizona 85701-1627 Telephone: (520) 879-6800 Facsimile: (520) 879-6881

Plaintiff: Angela Wilson-Goodman WILSON-GOODMAN & FONG, P.C. 528 South Gilbert Road, Suite 101 Gilbert, Arizona 85296 Telephone: (480) 503-9217 Facsimile: (480) 503-9219

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B.

STATEMENT OF JURISDICTION. 1. The jurisdictional basis for this case is federal question jurisdiction

pursuant to 28 U.S.C. §§ 1331, 1343. 2. C. 1. Jurisdiction is not disputed.

STIPULATIONS AND UNCONTESTED FACTS AND LAW. The following facts are admitted by the parties and require no proof: a. b. c. Plaintiff is Hispanic and was born in Bolivia. Plaintiff speaks with an accent. Plaintiff began working for SuperCuts as a hairstylist on or about

February 12, 1999. d. Plaintiff originally worked at the SuperCuts store located in Scottsdale

on Indian Bend Road. e. on August 7, 2003. f. On or about August 7, 2003, Plaintiff was involuntarily transferred to Plaintiff was the only Hispanic employed at the Indian Bend location

a SuperCuts store located in Phoenix on Bell Road. g. Plaintiff was 50 years old at the time she was transferred to the store

on Bell Road, and the oldest employee at the Indian Bend location. h. Maudie Kappel was the Area Supervisor for SuperCuts stores in the

northwest Phoenix, Arizona metropolitan area on August 7, 2003, and had been since February 16, 2003. The Indian Bend location came under Maudie Kappel's supervision in April 2003. Prior to April 2003, Ms. Kappel had never met and had not heard about Plaintiff. i. Maudie Kappel was the person who made the decision to transfer and

informed Plaintiff that she was being transferred to the Bell Road location. j. From approximately May 2003 to June 30, 2003, Jessica Nyman

("Nyman") was Plaintiff's immediate supervisor at the Indian Bend location.

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k.

Within approximately two months after becoming Store Manager of

the Indian Bend Store Nyman requested and was granted a transfer to another store. l. On July 1, 2003, Cara Smith ("Smith") became the store manager for

the Indian Bend location. m. n. o. 2003. p. At the time of Plaintiff's transfer, Smith was Plaintiff's immediate This was Smith's first store manager assignment. Smith was 22 years old at the time. Smith had not worked with Plaintiff in any capacity prior to July 1,

supervisor at the Indian Bend location. q. Two days before Csanyi's transfer, Smith told Kappel that she wanted

to step down as manager of the Indian Bend Store and move to a different store. r. On or about August 7, 2003, Ms. Kappel granted Smith's request and

Smith then worked in different stores assisting as an extra hair stylist until she was transferred on a regular basis to Store #9591 on or about September 1, 2003. s. August 7, 2003. t. August 7, 2003. u. At times between June 1, 2003 and August 6, 2003, Maudie Kappel Larisa Baturow worked with Plaintiff from March 15, 2003 until Nina Barayeva worked with Plaintiff from October 30, 2002 until

personally observed Plaintiff while she was working at the Indian Bend location. v. At the time Maudie Kappel transferred Plaintiff, she did not know

Plaintiff's specific age. w. At the time of Plaintiff's transfer, Plaintiff was a Shift Leader at the

Indian Bend location, and had keys to the store. x. /// At the time of her transfer, the Bell Road location had ten stylists.

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y.

At the time of her transfer, Plaintiff was one of four stylists at the

Indian Bend location. z. hour. aa. Bell Road location. bb. Upon her transfer to the Bell Road location, Michelle Ortega became Plaintiff's hourly rate of pay remained at $8.60 after her transfer to the At the time of her transfer, SuperCuts was paying Plaintiff $8.60 per

Plaintiff's immediate supervisor. cc. On September 25, 2003, Plaintiff applied for and was granted FMLA

leave, retroactive to September 18, 2003, which initially was to continue until October 18, 2003. Plaintiff's FMLA leave was subsequently extended until November 3, 2003. dd. location. ee. benefits terminated. ff. On or about October 5, 2003, Plaintiff mailed a check to SuperCuts in Plaintiff was still on approved FMLA leave when her health insurance The Bell Road location is 26 miles from the Indian Bend

the amount of $186.00 to cover her portion of her health insurance premium for the month of October, while she was on FMLA leave. gg. Defendants never refunded Plaintiff the $186.00 she paid for her

October health insurance premium. hh. 2. Plaintiff went to work for Fantastic Sam's in February 2004.

The following facts, although not admitted, will not be contested at trial by

evidence to the contrary: a. /// /// /// Plaintiff is over forty years of age, was born in Bolivia and is Hispanic.

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3.

The following issues of law are uncontested and stipulated to by the parties: a. The Age Discrimination in Employment Act ("ADEA") 1. The ADEA makes it "unlawful for an employer . . . to fail or

refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 621(a)(1). 2. To establish a violation of the ADEA under the disparate

treatment theory of liability, Csanyi must first establish a prima facie case of discrimination. If she does, the burden then shifts to defendants to articulate a legitimate, nondiscriminatory reason for their employment decision. Then, in order to prevail, Csanyi must demonstrate that defendants' reason for the adverse employment decision is a pretext for another motive which is discriminatory. Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000); Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994). Despite the burden shifting, the ultimate burden of proof remains always on Csanyi to show that defendants intentionally discriminated because of her age. See Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420-21 (9th Cir.1990). 3. To establish her prima facie case using circumstantial evidence,

Csanyi must demonstrate that she (1) was at least age 40; (2) was performing her job satisfactorily; (3) suffered some adverse employment action; and (4) was replaced by substantially younger employees with equal or inferior qualifications. Coleman v. Quaker Oats Co., supra; Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir.1997); Douglas v. Anderson, 656 F.2d 528, 532 (9th Cir. 1981). b. National Origin or Race Discrimination 1. To establish a prima facie case of national origin or race

discrimination, Csanyi must show: (1) she belongs to a protected class; (2) she was qualified for the position; (3) she was subject to an adverse employment action; and (4) similarly situated individuals outside of her protected class were treated more favorably.

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Chuang v. University Cal. Davis, Bd. Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000). 2. If Csanyi establishes a prima facie case of national origin or

race discrimination, the burden shifts to the defendants to show that their decision was based on a legitimate, nondiscriminatory reason. Chuang, 225 F.3d at 1123-24. 3. Once defendants provide a legitimate, nondiscriminatory reason

for the adverse employment action, Csanyi must show that the adverse employment action was a pretext for national origin or race discrimination. See Chuang, 225 F.3d at 1127. c. Retaliation 1. A prima facie case of retaliation in violation of Title VII

requires Csanyi to show that: (1) she engaged in a protected activity; (2) her employer subjected her to an adverse employment action; and (3) there is a causal link between the protected activity and the employer's action. Tempesta v. Motorola, Inc., 92 F. Supp. 2d 973, 982 (D. Ariz. 2000). To be protected activity, Csanyi must have "reasonably believed" that she was opposing a practice made discriminatory by Title VII. See 42 U.S.C. § 2000e-3(a); Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978). To show the requisite causal link, Csanyi must present evidence sufficient to raise the inference that her protected activity was the likely reason for the adverse action. Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1064-65 (9th Cir. 2002). 2. If Csanyi establishes a prima facie case of retaliation, the

burden shifts to the defendants to provide a legitimate, nondiscriminatory reason for their actions. Id. Once defendants provide a legitimate, nondiscriminatory reason for their actions, Csanyi then has the burden to establish that the action was really motivated by retaliatory animus. Id. Unless Csanyi has direct evidence of retaliatory animus, she must set forth "specific" and "substantial" evidence of pretext. Id. d. Family and Medical Leave Act: The Family and Medical Leave Act

("FMLA") requires that an employer maintain an employee's insurance coverage for the duration of an employee's leave under the FMLA. 29 U.S.C. § 2614(c)(1).

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e.

Mitigation of Damages: A plaintiff has a duty to mitigate damages by

exercising reasonable care and diligence in seeking reemployment after termination. See 42 U.S.C. § 2000e-5(g); Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1345 (9th Cir. 1987). f. Punitive Damages: Punitive damages are only available when a

plaintiff can show that the employer-Defendants engaged in a discriminatory practice or practices and acted "with malice or reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). g. Adverse Employment Action: "Adverse employment action" is broadly

defined and Plaintiff's transfer does constitute an adverse employment action. Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000); see also Fonseca v. Sysco Food Svs. of Arizona, 374 F.3d 840, 847 (9th Cir. 2004). D. CONTESTED ISSUES OF FACT AND LAW. 1. The following are the issues of fact to be tried and decided: Whether Plaintiff was transferred because of her age, race,

Issue #1:

national origin and/or in retaliation for complaining of discrimination and harassment by another employee in October of 2002, in violation of 29 U.S.C. § 621(a)(1) and/or 42 U.S.C. § 2000(e). Plaintiff Contends: Plaintiff was transferred to the Bell Road store because of the complaints against her by Cara Smith, which were motivated in part by the fact that Cara Smith did not like working with old people, did not like working with Plaintiff because of her accent, and/or the result of a prior harassment complaint in 2002 involving Michelle Ortega. Defendants Contend: Plaintiff was not transferred because of her age, race, national origin and/or in retaliation for complaining of discrimination and harassment by another employee in October of 2002, in violation of 29 U.S.C. § 621(a)(1) and/or 42 U.S.C. § 2000(e). Maudie Kappel made the decision to transfer Plaintiff and did transfer

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Plaintiff to the Bell Road store for legitimate, nondiscriminatory reasons. Issue #2: Whether Plaintiff suffered any damages?

Plaintiff Contends: That Plaintiff suffered actual and compensatory damages. Defendants Contend: compensatory damages. Issue #3: Whether Plaintiff failed to mitigate her damages? Plaintiff Contends: That Plaintiff did mitigate her damages. Defendants Contend: 2. That Plaintiff failed to mitigate her damages. That Plaintiff did not suffer actual or

The following are issues of law to be tried and determined: Issue #1: Whether Plaintiff was discriminated against due to her age, race

and/or national origin in violation of 29 U.S.C. § 621(a)(1) and/or 42 U.S.C. § 2000(e)? Plaintiff Contends: Plaintiff was transferred to the Bell Road store because of the complaints against her by Cara Smith, which were motivated in part by the fact that Cara Smith did not like working with old people, did not like working with Plaintiff because of her accent, and/or the result of a prior harassment complaint in 2002 involving Michelle Ortega, in violation of 42 U.S.C. § 2000(e), and/or 29 U.S.C. § 621(a)(1). Defendants' proffered reasons for the transfer are pretextual, and the reason(s) for Plaintiff's transfer is/are discriminatory. Defendants Contend: First, Plaintiff never stated a claim for race

discrimination. Second, assuming the existence of a race discrimination claim, Plaintiff failed to satisfy the administrative prerequisites required to maintain such a claim. Third, Plaintiff cannot establish a prima facie case of age, race and/or national origin discrimination. Finally, even assuming, arguendo, that Plaintiff could establish her prima facie case for her age, race and/or national origin discrimination claims, Defendants have articulated a legitimate, nondiscriminatory reason for the transfer and Plaintiff cannot show that her transfer was false and a pretext for age, race and/or national origin discrimination.

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Issue #2:

Whether Defendants transferred Plaintiff in retaliation for

complaining of discrimination and harassment by another employee in October of 2002 in violation of 42 U.S.C. § 2000(e). Plaintiff Contends: That Defendants retaliated against her for filing a discrimination and harassment complaint against another employee in October of 2002, which claim was not processed by Defendant, by transferring her to another store managed by Michelle Ortega. Defendants Contend: First, that Plaintiff never stated a claim for

retaliation. Second, assuming the existence of a retaliation claim, Plaintiff failed to satisfy the administrative prerequisites required to maintain such a claim. Third, Defendants deny that Plaintiff was retaliated against for allegedly filing a discrimination and harassment complaint against another employee in October of 2002 and that any such alleged claim was not processed by Defendants. Fourth, Plaintiff cannot establish a causal connection between her transfer by Maudie Kappel in August 2003 and the alleged protected activity of October 2002, which involved Michelle Ortega, a person not involved in the August 2003 transfer. Issue #3: Act ("FMLA"). Plaintiff Contends: That Defendants terminated her health insurance benefits while she was out on FMLA. Defendants Contend: Issue #4: Plaintiff cannot establish that she was damaged. Whether Defendants violated the Family and Medical Leave

Whether Plaintiff is precluded from litigating her claims for

retaliation and race discrimination because she failed to exhaust her administrative remedies. Plaintiff Contends: That Defendants did not raise failure to exhaust administrative remedies in its Answer, and there Defendant's waives the defense of failure to exhaust administrative remedies, allowing the claims for retaliation and race

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discrimination to go forward. Defendants Contend: First, Defendants did not raise Plaintiff's failure

to satisfy the administrative prerequisites to litigating her race discrimination and retaliation claims in their Answer or Amended Answer because such alleged claims were not included in Plaintiff's lawsuit and did not become issues until the Court ruled that race discrimination and retaliation claims would proceed to trial. Second, the Court does not have subject matter jurisdiction because Plaintiff failed to satisfy the administrative prerequisites to litigating her race discrimination and retaliation claims. Finally,

Defendants contend that Plaintiff's race discrimination and retaliation claims should be dismissed due to her failure to administratively file race discrimination and retaliation charges with the EEOC. Issue #5: Whether Plaintiff is entitled to an award of punitive damages?

Plaintiff Contends: That if Plaintiff can show that Defendants' proffered reason(s) for her transfer was/were pretextual, and that Plaintiff was actually transferred for a discriminatory reason, that is sufficient for a finding that the employer acted `with malice or reckless indifference to the complaining party's federal protected rights' See Equal Employment Opportunity Commission v. Wal-Mart Stores, Inc., 156 F.3d 989, 993. Defendants Contend: Punitive damages are only available if Plaintiff

can show that Defendants engaged in a discriminatory practice or practices and acted "with malice or reckless indifference to [her] federally protected rights ...." 42 U.S.C. § 1981a(b)(1). Defendants did not act with malice or reckless indifference to the federally protected rights of Plaintiff. Defendants have articulated legitimate, non-discriminatory reasons for plaintiff's transfer. Finally, Plaintiff cannot show the "willful" conduct necessary for an award of punitive damages for her age discrimination claim because she has no evidence to dispute that Defendants acted non-recklessly and in good faith. 29 U.S.C. § 626(b); Hazen Paper Co. v. Biggins, 507 U.S. 604, 616, 113 S. Ct. 1701, 1709 (quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 129, 105 S. Ct. 613, 625

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(1985) (internal alterations omitted). E. (1) LIST OF WITNESSES. Plaintiff's Witnesses who shall be called at trial:

a. Mary Csanyi, Plaintiff, fact witness. This witness' testimony is expected to include but not necessarily be limited to: the discrimination she endured from the Defendants and her damages. b. Cara Smith, Manager, SuperCuts. This witness' testimony is expected to include but not necessarily be limited to: the reasons why Plaintiff was transferred to the Bell Road store. She is also expected to testify regarding Plaintiff's work habits and her interactions with customers and coworkers. c. Michelle Ortega, Store Manager, SuperCuts. This witness' testimony is expected to include but not necessarily be limited to: Plaintiff's work habits and her interactions with customers and coworkers, the prior harassment complaint in 2002 and the circumstances surrounding Plaintiff's transfer. d. Melissa Kell, SuperCuts Operations. This witness' testimony is expected to include but not necessarily be limited to: Plaintiff's written request to be transferred back to the Indian Bend location, and SuperCuts' denial. e. Maudie Kappel, Area Manager, SuperCuts. This witness' testimony is expected to include but not necessarily be limited to: Plaintiff's transfer, her work habits and her interactions with customers and coworkers. f. Jennifer Defilippis (Csanyi), former Stylist, SuperCuts. This witness' testimony is expected to include but not necessarily be limited to: the treatment received by Plaintiff by the managers of SuperCuts. g. Lawrence M. Martin, M.D. of Scottsdale Psychiatric Services. This witness' testimony is expected to include but not necessarily be limited to: his psychiatric evaluation of Plaintiff and her emotional distress. h. Mary Ann of Griffin & Associates Court Reporters. This witness is expected to testify about the drafting and mailing of the letter to Plaintiff on August 27, 2004, regarding reviewing the deposition transcript. i. Gerald Helm, Director, SuperCuts. This witness' testimony is expected to include but not necessarily be limited to: Plaintiff's work habits and her interactions with customers and coworkers. j. Allison Manno, Regis Benefits Department. This witness' testimony is expected to include but not necessarily be limited to: the cancellation of Plaintiff's health insurance, Plaintiff's vacation benefits, and other benefits of Plaintiff's employment with Defendants. k. Terry Gilstrap. This witness' testimony is expected to include but not necessarily be limited to: the circumstances surrounding Plaintiff's transfer. ///

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(2)

Plaintiff's Witnesses who may be called at trial:

a. Darci Hoyt. Ms. Hoyt's testimony is expected to include but not necessarily be limited to: Plaintiff's work habits and her interactions with her supervisors, co-workers and clients. b. Jessica Nyman. Ms. Nyman's testimony is expected to include but not necessarily be limited to: Plaintiff's work habits and her interactions with her supervisors, co-workers and clients, and the reasons Ms. Nyman left the Indian Bend store. (3) Plaintiff's Witnesses who are unlikely to be called at trial:

Elaine Rogers, customer of Plaintiff's at SuperCuts. This witness is expected to testify as to a statements made by a manager of SuperCuts to Plaintiff about not wanting to work with Plaintiff. (4) Defendant's Witnesses who shall be called at trial:

a. Mary Csanyi, Plaintiff, fact witness: Ms. Csanyi is expected to testify about her allegations against Defendants, the circumstances surrounding her transfer, her work habits and her interactions with co-workers, supervisors and clients. b. Maudie Kappel, Area Supervisor, fact witness: Ms. Kappel's testimony is expected to include but not necessarily be limited to: Plaintiff's work habits and her interactions with her supervisors, co-workers and clients and/or her knowledge thereof; the reason(s) she made the decision to transfer and, in fact, transferred Plaintiff to the Bell Road store; her rebuttal of Plaintiff's various statements and claims. c. Cara Smith, Plaintiff's manager, fact witness: Ms. Smith's testimony is expected to include but not necessarily be limited to: Plaintiff's work habits and her interactions with and treatment of her supervisors (including Smith), co-workers and clients; Plaintiff's transfer to the Bell Road store and her involvement or non-involvement therein; her desire to leave the Indian Bend Store; her rebuttal of Plaintiff's various statements and claims. d. Michelle Ortega, Plaintiff's manager, fact witness: Ms. Ortega's testimony is expected to include but not necessarily be limited to: Plaintiff's work habits and her interactions with her supervisors, co-workers and clients at both the Bell Road and Indian Bend stores; her knowledge of and involvement in Plaintiff's complaint in October 2002; her non-involvement in Ms. Kappel's decision to transfer plaintiff; her rebuttal of Plaintiff's various statements and claims. e. Larisa Baturow, Plaintiff's co-worker, fact witness: Ms. Baturow's testimony is expected to include but not necessarily be limited to: Plaintiff's work habits and her interactions with her supervisors, co-workers and clients, including her comments about Russians; her rebuttal of Plaintiff's various statements and claims. f. Nina Barayeva, Plaintiff's co-worker, fact witness: Ms. Barayeva's testimony is expected to include but not necessarily be limited to: Plaintiff's work habits and her interactions with her supervisors, co-workers and clients, including her comments about Russians; her rebuttal of Plaintiff's various statements and claims.

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g. Linda Brown, SuperCuts' customer, fact witness: Ms. Brown's testimony is expected to include but not necessarily be limited to: her interactions with and/or observations of Plaintiff at SuperCuts and Plaintiff's effect on Store morale. h. Jessica Nyman, Plaintiff's manager, fact witness: Ms. Nyman's testimony is expected to include but not necessarily be limited to: Plaintiff's work habits and her interactions with her supervisors (including Nyman), co-workers and clients; her reasons for transferring out of the Indian Bend store; her communications about Plaintiff with Ms. Kappel; her rebuttal of Plaintiff's various statements and claims. (5) Defendant's Witnesses who may be called at trial:

a. Darci Hoyt, Plaintiff's manager, fact witness: Ms. Hoyt's testimony is expected to include but not necessarily be limited to: Plaintiff's work habits and her interactions with her supervisors, co-workers and clients. b. J.C. Edwards, Plaintiff's manager, fact witness: Ms. Edwards' testimony is expected to include but not necessarily be limited to: Plaintiff's work habits and her interactions with her supervisors, co-workers and clients. c. Liz Perez Donaldson, Area Supervisor, fact witness: Ms. Perez-Donaldson's testimony is expected to include but not necessarily be limited to: Plaintiff's work habits and her interactions with her supervisors, co-workers and clients. d. Melissa Kell, SuperCuts benefits department, fact witness: Ms. Kell is expected to testify about Plaintiff's benefits. e. Terry Gilstrap, SuperCuts Regional Supervisor, fact witness: Ms. Gilstrap is expected to testify about Plaintiff's transfer to the Bell Road store. f. Allison Manno, SuperCuts Benefits Department, fact witness: Ms. Manno is expected to testify about Plaintiff's benefits. g. Galina Babayeva, Plaintiff's co-worker, fact witness: Ms. Babayeva is expected to testify about Plaintiff's work habits and her interactions with her supervisors, co-workers and clients. h. Yelena Baturow. Plaintiff's co-worker, fact witness: Ms. Baturow is expected to testify about Plaintiff's work habits and her interactions with her supervisors, co-workers and clients. (6) Defendant's Witnesses who are unlikely to be called at trial: N/A Each party understands that it is responsible for ensuring that the witnesses it wishes to call to testify are subpoenaed. Each party further understands that any witness a party wishes to call shall be listed on that party's list of witnesses above and that party cannot rely on that witness having been listed or subpoenaed by another party.

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F. 1.

LIST OF EXHIBITS. The following exhibits are admissible in evidence and may be marked in

evidence by the Clerk: a. 4. 5. January 20, 2004. 6. 2003. 7. 8. 2003. 9. September 29, 2003. 10. 2003. 11. 2003. 15. 18. 24. 25. 26. 27. transcript. 30. 2003. Super Cuts Operations Employee Form re: transfer dated August 7, SuperCuts October 31, 2003, letter to Plaintiff re: return from FMLA. Employer Response to FMLA Request dated October 7, 2003. Super Cuts New Employee Packet EEOC Complaint dated August 12, 2003. EEOC Dismissal and Notice of Rights dated September 9, 2003. Griffin & Associates August 27, 2004, letter to Plaintiff re: deposition SuperCuts Employee Request For Time Off form dated October 29, Super Cuts Employee Request For Time Off form dated September 25, Revised-Extending Leave FMLA Request For Time Off form dated Super Cuts letter dated October 13, 2003, regarding payroll deductions. Revised Employer Response to FMLA Request dated November 10, Personal check #1999 by Plaintiff for health insurance dated October1, Plaintiff's Exhibits: Handwritten statement by Elaine Rogers dated August 5, 2003. Regis Corporation Certificate of Group Health Plan Coverage dated

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31. 33. 34. 35. 37.

1999 Tax Return 2001 Tax Return 2002 Tax Return 2003 Tax Return Super Cuts Management Form dated July 27, 2003, re: transfer.

Plaintiffs reserves the right to use any and all exhibits offered by Plaintiff and admitted into evidence. b. 100. 121. 122, Defendant's Exhibits: 09/09/03 Letter from EEOC to Plaintiff (RC0187) Handwritten note by Plaintiff dated 10/05/03 (1 page) Family and Medical Leave Request Tracking Form (RC0241)

Defendants reserve the right to use any and all exhibits offered by Plaintiff and admitted into evidence. 2. stipulations: a. Plaintiff's Exhibits: None b. Defendant's Exhibits: None 3. As to the following exhibits, the party against whom the exhibit is to be As to the following exhibits, the parties have reached the following

offered objects to the admission of the exhibit and offers the objection stated below: a. Plaintiff's Exhibits: 1. Handwritten statement by Jennifer Defilippis (Jennifer

Defilippis is the same person as Jennifer Csanyi) dated November 30, 2004. Defendants object because: (1) the exhibit lacks foundation because Ms. Defilippis lacks personal knowledge as to the events described in Plaintiff's Exhibit 1; (2) Exhibit 1 is not relevant; (3) Exhibit 1 is hearsay; and (4) unless it is used for impeachment, Exhibit 1 is

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duplicative of testimony that Ms. Defilippis will presumably give if she testifies at trial. 2. Affidavit of Jennifer Csanyi (Jennifer Csanyi is the same person

as Jennifer Defilippis) dated November 30, 2004. Defendants object because: (1) the exhibit lacks foundation because Jennifer Csanyi lacks personal knowledge as to the events described in Plaintiff's Exhibit 2; (2) Exhibit 2 is not relevant; (3) Exhibit 2 is hearsay; and (4) unless it is used for impeachment, Exhibit 2 is duplicative of testimony that Jennifer Csanyi will presumably give if she testifies at trial. 3. Affidavit of Mary Csanyi dated November 30, 2004.

Defendants object because: (1) Exhibit 3 is not relevant; and (2) unless it is necessary for impeachment, Exhibit 3 is duplicative of testimony that Plaintiff will presumably give when she testifies at trial. 12. Super Cuts Family & Medical Leave Act Certification of Health

Care Provider dated October 5, 2003. Defendants object because: (1) the exhibit lacks foundation because the document has not been properly authenticated (see Rule 803(6), Fed. R. Evid.); and (2) because Plaintiff's Exhibit 12 is hearsay. 13. SPS Scottsdale Psychiatric Services New Evaluation dated

September 24, 2003, by Lawrence M. Martin, M.D. Defendants object because: (1) this exhibit lacks foundation (see Rule 803(6), Fed. R. Evid.; and (2) Exhibit 13 is hearsay. 14. through 2/12/04. Defendants object because: (1) this exhibit lacks foundation (see Rule 803(6); and (2) Exhibit 13 is hearsay. 16. Mary Csanyi Sizzlin' Sales Win! Progress Notes by Lawrence M. Martin, M.D. from 10/21/03,

Defendants object because Plaintiff's Exhibit 16 is not relevant. 17. Total Sales thank you dated August 1, 2003.

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Defendants object because Plaintiff's Exhibit 17 is not relevant. 19. September 24, 2003. Defendants object because: (1) this exhibit lacks foundation (see Rule 803(6) Fed. R. Evid.; and (2) Exhibit 13 is hearsay. 20. dated October 21, 2003. Defendants object because: (1) this exhibit lacks foundation (see Rule 803(6), Fed. R. Evid.; and (2) Exhibit 13 is hearsay. 21. SuperCuts Phone Directory. Lawrence M. Martin, M.D. Note re: Plaintiff's return to work Lawrence M. Martin, M.D. Note re: Plaintiff's illness dated

Defendants object because Exhibit 21 is not relevant. 22. 28, 2003. Defendants object because Plaintiff's Exhibit 22 is not relevant. 23. 4, 2003. Defendants object because Plaintiff's Exhibit 23 is not relevant. 28. Clonazapam. Defendants object because: (1) this exhibit lacks foundation (see Rule 803(6), Fed. R. Evid.; and (2) Exhibit 28 is hearsay. 29. SuperCuts Anita Koehn December 19, 2001, letter to Plaintiff re: 30 hours per week w/ attachments. Defendants object because: (1) this exhibit lacks foundation because it is not authenticated; (2) Exhibit 29 is hearsay; and (3) Exhibit 29 is not relevant. /// /// Prescriptions by Lawrence M. Martin, M.D. for Celuxa and SuperCuts Store ID 9667 Weekly Work Schedule dated August SuperCuts Store ID 9672 Weekly Work Schedule dated July

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32.

Plaintiff's 2000 Tax Return.

Defendants object because this exhibit lacks foundation in that it is a different document that the 2000 tax return that was produced to Defendants. 36. 9/17/03. Defendants object because: (1) the exhibit lacks foundation because it is not authenticated; and (2) Exhibit 36 is not relevant. Defendants also object to plaintiff's handwritten comments on exhibit 36. 38. Want Ad for Hairstylist at SuperCuts. SuperCuts Daily Time Reports for 9/15/03, 9/16/03, and

Defendants object to this exhibit as lacking foundation (it fails to identify a date on which the ad was run) and it is irrelevant. 39. Inc. settlement. Defendants object because: (1) the exhibit lacks foundation because there is no evidence authenticating the fact of or the terms of any settlement; (2) any reference to a settlement is barred by Rule 408, Fed. R. Evid.; (3) Plaintiff's Exhibit 39 is hearsay; and (4) Exhibit 39 is not relevant to the facts or claims in this lawsuit. 40. Telephone numbers given to Plaintiff by Maudie Kappel. Arizona Republic article dated August 14, 2003, re: SuperCuts,

Defendants object because (1) Exhibit 40 is hearsay; and (2) Exhibit 40 is not relevant. 41. Supercuts Management Form dated 1/14/02 by Darci Hoyt.

Defendants object because Plaintiff's Exhibit 41 is not relevant. 42. Supercuts transactions totals for Mary.

Defendants object because Plaintiff's Exhibit 42 is not relevant. 43. Supercuts Weekly Work Schedule dated 1/9/02.

Defendants object because Plaintiff's Exhibit 43 is not relevant. ///

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b. 101.

Defendant's Exhibits: Acknowledgment of Workplace Harassment Policy signed by Plaintiff

on 06/03/01 (RC0032). Plaintiff objects because: (1) Exhibit 101 is not relevant. 102. Acknowledgment of Retaliation Policy signed by Plaintiff (RC0034).

Plaintiff objects because: (1) Exhibit 102 is not relevant. 103. SuperCuts Management Form dated 08/11/00 (RC0071).

Plaintiff objects because: (1) Exhibit 103 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 103; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 103 is duplicative of testimony that may be given at trial. 104. SuperCuts Management Form dated 08/11/00 (RC0070).

Plaintiff objects because: (1) Exhibit 104 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 104; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 104 is duplicative of testimony that may be given at trial. 105. SuperCuts Management Form dated 10/26/00 (RC0049, RC0052).

Plaintiff objects because: (1) Exhibit 105 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 105; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 105 is duplicative of testimony that may be given at trial. 106. SuperCuts Management Form dated 08/26/01 (RC0043).

Plaintiff objects because: (1) Exhibit 106 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 106; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 106 is duplicative of testimony that may be given at trial. ///

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107.

SuperCuts Management Form dated 08/29/01 (RC0038).

Plaintiff objects because: (1) Exhibit 107 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 107; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 107 is duplicative of testimony that may be given at trial. 108. SuperCuts Management Form dated 07/08/03 (RC0083).

Plaintiff objects because: (1) Exhibit 108 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 108; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 108 is duplicative of testimony that may be given at trial. 109. SuperCuts Management Form dated 07/25/03 (RC0103)

Plaintiff objects because: (1) Exhibit 109 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 109; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 109 is duplicative of testimony that may be given at trial. 110. SuperCuts Management Form dated 07/29/03 (RC0080).

Plaintiff objects because: (1) Exhibit 110 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 110; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 110 is duplicative of testimony that may be given at trial. 111. SuperCuts Management Form dated 07/31/03 (RC0152).

Plaintiff objects because: (1) Exhibit 111 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 111; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 111 is duplicative of testimony that may be given at trial. /// ///

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112.

SuperCuts Management Form dated 08/05/03 (RC0036).

Plaintiff objects because: (1) Exhibit 112 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 112; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 112 is duplicative of testimony that may be given at trial. 113. SuperCuts Management Form dated 08/05/03 (RC0082).

Plaintiff objects because: (1) Exhibit 113 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 113; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 113 is duplicative of testimony that may be given at trial. 114. SuperCuts Management Form dated 08/20/03 (RC0149-RC0150).

Plaintiff objects because: (1) Exhibit 114 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 114; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 114 is duplicative of testimony that may be given at trial. 115. SuperCuts Management Form dated 08/20/03 (RC0190).

Plaintiff objects because: (1) Exhibit 115 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 115; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 115 is duplicative of testimony that may be given at trial. 116. SuperCuts Management Form dated 08/21/03 (RC0081).

Plaintiff objects because: (1) Exhibit 116 lacks foundation because this exhibit has not been authenticated; (2) no personal knowledge as to the events described in Exhibit 116; (3) relevancy; (4) hearsay; and (5) unless it is used for impeachment, Exhibit 116 is duplicative of testimony that may be given at trial. /// ///

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117.

Affidavit of Maudie Kappel, dated 10/29/04 (3 pages).

Plaintiff objects because: (1) the exhibit lacks foundation because Maudie Kapple lacks personal knowledge as to the events described in Defendant's Exhibit 117; (2) hearsay; and (3) unless it is used for impeachment, Exhibit 117 is duplicative of testimony that Maudie Kappel will presumably give if she testifies at trial. 118. Affidavit of Nina Barayeva, dated 10/29/04 (1 page)

Plaintiff objects because: (1) hearsay; and (2) unless it is used for impeachment, Exhibit 118 is duplicative of testimony that Nina Barayeva will presumably give if she testifies at trial. 119. Affidavit of Larisa Baturow, dated 10/29/04 (1 page).

Plaintiff objects because: (1) hearsay; and (2) unless it is used for impeachment, Exhibit 119 is duplicative of testimony that Larisa Baturow will presumably give if she testifies at trial. 120. Affidavit of Cara Mary Smith, dated 10/29/04 (2 pages).

Plaintiff objects because: (1) the exhibit lacks foundation because Cara Mary Smith lacks personal knowledge as to the events described in Defendant's Exhibit 120; (2) hearsay; and (3) unless it is used for impeachment, Exhibit 120 is duplicative of testimony that Cara Mary Smith will presumably give if she testifies at trial. 123 Handwritten note by Yelena Baturow (RC0147).

Plaintiff objects because: (1) Exhibit 123 lacks foundation because this exhibit has not been authenticated; (2) hearsay; and (3) unless it is used for impeachment, Exhibit 123 is duplicative of testimony that Larisa Baturow will presumably give if she testifies at trial. 124 Responses Thereto. Plaintiff objects because: the exhibit is irrelevant and unless it is used for impeachment, Exhibit 124 is duplicative of testimony that Plaintiff will presumably give Defendants' First Set of Interrogatories To Plaintiff and Plaintiff's

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if she testifies at trial. 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: None. Defendants will offer Plaintiff's deposition for impeachment purposes only. Each party hereby acknowledges by signing this joint Proposed Final Pretrial Order that any deposition not listed as provided herein will not be allowed, absent good cause. H. MOTIONS IN LIMINE (JURY TRIAL). Not applicable. I. LIST OF PENDING MOTIONS. None. J. ESTIMATED LENGTH OF TRIAL. 4 days. K. JURY DEMAND. No jury trial is requested. L. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW.

The separately lodged Proposed Findings of Fact and Conclusions of Law are incorporated by reference into this joint Proposed Final Pretrial Order. M. CERTIFICATIONS.

The undersigned counsel for each of the parties in this action do hereby certify and acknowledge the following: a. b.
1

All discovery has been completed. 1 The identity of each witness has been disclosed to opposing counsel.

Plaintiff, as a pro per litigant, only conducted minimal discovery, however, the deadline to complete discovery has passed.

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c.

Each exhibit listed herein: (1) is in existence; (2) is numbered; and (3)

has been disclosed and shown 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.2 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 joint Proposed Final Pretrial

Order has been signed and lodged by the parties, no amendments to this Order can be made without leave of the Court. Based on the foregoing, IT IS ORDERED that this Proposed Final Pretrial Order jointly submitted by the parties hereby APPROVED and ADOPTED as the official Pretrial Order of this Court. DATED this 17th day of January, 2006.

On December 8, 2005 the parties filed their Joint Motion To Extend Time To File Proposed Final Pretrial Form Of Order And Findings Of Fact And Conclusions Of Law, seeking to extend the time to file until December 14, 2005 for the reasons more particularly set forth in that Motion.

2

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