Free Lodged Proposed Document - District Court of Arizona - Arizona

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Stephen G. Montoya (#011791) MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney for Plaintiff

Stephanie Osteen AKIN GUMP STRAUSS HAUER & FELD LLP
1700 Pacific Avenue, Suite 4100 Dallas, Texas 75201 Telephone: (214) 969-2800 Fax: (214) 969-4343

[email protected]

Tricia Schafer MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A.
2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012 Phone: (602) 889-5341 Facsimile: (602) 285-5100

[email protected] Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Patrice Jerome, plaintiff, vs. Midway Holdings, Inc. and Midway Chevrolet, Inc., defendants. No. CV 03-1913-PHX-MHM PROPOSED JOINT PRETRIAL ORDER

Pursuant to this Court's Scheduling Order of September 17, 2007, the parties to this

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proceeding submit the following Proposed Pretrial Order to be considered at the final pretrial conference scheduled for December 17, 2007 at 4:00 p.m. A. TRIAL COUNSEL FOR PARTIES Plaintiff: Stephen G. Montoya Montoya Jimenez, P.A. 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (602) 256-6667 fax [email protected] Stephanie Osteen Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Avenue, Suite 4100 Dallas, Texas 75201 Telephone: (214) 969-2800 Fax: (214) 969-4343 [email protected] Tricia Schafer Mariscal, Weeks, McIntyre & Friedlander, P.A. 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012 Phone: (602) 889-5341 Facsimile: (602) 285-5100 [email protected]

Defendant:

B.

STATEMENT OF JURISDICTION

Jurisdiction in this case is based on federal question under Title 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(3). Jurisdiction is not disputed. C. NATURE OF ACTION

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This is an action seeking money damages for hostile working environment sexual harassment and discriminatory discharge based on sex brought by plaintiff Patrice Jerome against defendants Midway Holdings, Inc. (d/b/a Midway Auto Team, Midway Infiniti, Midway Nissan, Midway GMC, Midway Buick, Midway Pontiac) and Midway Chevrolet, Inc., pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e. Midway denies Plaintiff was subjected to sex discrimination or hostile work environment sex harassment and denies the allegations Plaintiff makes in support of those claims. Midway incorporates by reference the defenses set forth in its Answer to Plaintiff's Complaint. D. CONTENTIONS OF THE PARTIES

Contentions of Plaintiff: 1. Ms. Jerome's Claims against the Midway Holdings, Inc., Midway Auto Team, Midway Infiniti, Midway Nissan, Midway GMC, Midway Buick, Midway Pontiac, and Midway Chevrolet under Title VII.

In order to prevail on her claim of hostile working environment sexual harassment against Defendants, plaintiff must establish each of the following elements by a preponderance of evidence: 1. That she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; 2. 3. That the conduct was unwelcome; and That the conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working -3-

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environment; See Ellison v. Brady, 924 F.2d 872, 875-876 (9th Cir. 1991) and Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th Cir. 1999). The "required showing of severity or seriousness of the sexually harassing conduct varies inversely with the pervasiveness or frequency of the conduct." Ellison v. Brady, 924 F.2d at 879 (9th Cir. 1991). Moreover, the question of whether a particular working environment is "hostile or abusive" is to be considered from the perspective of a "reasonable person" with the same fundamental characteristics as the victim of harassment under the same circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). When determining whether an unlawful hostile working environment exists, the court must consider "the totality of the circumstances." Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). See also Harris v. Forklift Systems, Inc., 510 U.S. at 23 (1993) ("whether an environment is 'hostile or 'abusive' can be determined only by looking at all of the circumstances"). Discriminatory Discharge

In order to establish her claim for discriminatory discharge, Ms. Jerome must establish that Defendants terminated her employment at the dealership in whole or in part based on her gender. See, e.g., Dark v. Curry County, 451 F.3d 1078, (9th Cir. 2006). 3. Damages and Attorney Fees

Ms. Jerome is entitled to awards of nominal, compensatory, and punitive damages -4-

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against all Defendants. See, e.g., Smith v. Wade, 461 U.S. 30, 56 (1983). In addition, if Ms. Jerome prevails at trial, she will be entitled to an award of her costs and attorney fees. See, e.g., Cabrales v. City of Los Angeles, 935 F.2d 1050, 1051 (9th Cir. 1991). Contentions of Defendants: Midway denies Plaintiff was discriminated against on the basis of her sex by being terminated. Rather, Plaintiff was terminated for a legitimate and nondiscriminatory reason - her poor work performance. Midway also denies Plaintiff was subjected to a hostile work environment on the basis of her sex. The alleged sexual harassment about which Plaintiff complains does not rise to the level of actionable hostile work environment harassment. To the extent Plaintiff was subjected to any alleged sexual harassment, which Midway denies, Plaintiff unreasonably failed to take advantage of opportunities afforded by Midway to avoid, prevent, and correct the harm she allegedly suffered. To prevail on this affirmative defense, Midway must prove: (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) Plaintiff unreasonably failed to take advantage of Midway's preventive or corrective opportunities or unreasonably failed to otherwise avoid harm. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). To the extent Plaintiff suffered any compensable damages as a result of Midway's conduct, which Midway denies, Plaintiff failed to take reasonable steps to mitigate her alleged -5-

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damages. To prevail on this affirmative defense, Midway must prove: (1) Plaintiff failed to use reasonable efforts to mitigate her alleged damages; and (2) the amount by which damages would have been mitigated had Plaintiff used reasonable efforts. E. 1. 2. STIPULATIONS OF UNCONTESTED FACTS Plaintiff is a female. Plaintiff was employed by Midway in the position of Assistant Sales Manager from

approximately April, 6 2002 until approximately September 11, 2002. 3. Plaintiff was employed by Midway in the position of Recruiting Director from

approximately September 11, 2002 until approximately December 6, 2002. 4. F. Plaintiff was terminated from her employment at Midway on December 6, 2002. CONTESTED ISSUES OF FACT AND LAW

Plaintiff's Contested Issues of Fact and Law: 1. Whether Plaintiff was subjected to an unlawful sexually hostile work environment (as defined above) while employed by the Defendants. 2. Whether Plaintiff complained to management or otherwise appraised management of allegations relating to alleged hostile work environment. 3. Whether the Defendants failed to remedy or prevent a sexually hostile work environment of which management level employees knew, or in the exercise of reasonable care should have known. 4. Whether Plaintiff's working conditions were altered as a result of any unlawful -6-

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sexually hostile work environment at Midway. Whether Plaintiff suffered an adverse employment action or any tangible employment action as a result of any unlawful sexually hostile work environment at Midway. Whether Defendants to the extent it had notice of Plaintiff's claims of hostile work environment, promptly investigated and whether remedial measures were employed. Whether Plaintiff is entitled to an award of nominal damages against Defendants. Whether Plaintiff is entitled to an award of compensatory damages Defendants for a sexually hostile working environment. Whether Plaintiff is entitled to an award of punitive damages against Defendants. Whether Plaintiff is entitled to an award of her costs and attorney fees against the Defendants. Defendants' Contested Issues of Fact: Issue #1: Whether Ms. Jerome was unlawfully discriminated against by being terminated from her position as Recruiting Director at Midway on the basis of her sex. Plaintiff Contends: Ms. Jerome contends that she was discriminated against by Defendants based on her gender when she was terminated from her position of employment with Defendants. -7-

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Defendants Contend:

Midway denies Ms. Jerome's termination constituted unlawful discrimination on the basis of sex. Ms. Jerome was

terminated for a legitimate, non-discriminatory reason - her poor work performance. Issue #2: Whether Ms. Jerome was subjected to an unlawful sexually hostile work environment while employed as Recruiting Director by Midway. Plaintiff Contends: Ms. Jerome contends that she was subjected to an unlawful sexually hostile work environment while employed by Defendants. Defendants Contend: Midway denies Ms. Jerome was subjected to unlawful hostile work environment sex harassment at Midway a n d

further denies Ms. Jerome complained about such alleged conduct. Issue #3: Whether Midway exercised reasonable care to prevent and promptly correct alleged sexually harassing behavior. Plaintiff Contends: Ms. Jerome contends that Midway failed to exercise reasonable care to prevent or properly correct sexual harassment in the workplace. Defendants Contend: Midway did exercise reasonable care to prevent and promptly correct alleged sexually harassing behavior. Issue #4: Whether Ms. Jerome unreasonably failed to take advantage of Midway's -8-

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preventive and corrective opportunities or unreasonably otherwise avoid harm.

failed to

Plaintiff Contends: Ms. Jerome contends that she reasonably availed herself of Midway's alleged preventive and corrective opportunities in order to attempt to stop the harassment in the workplace. Defendants Contend: Midway contends Ms. Jerome unreasonably failed to take advantage of measures and opportunities in place a Midway designed to prevent and correct alleged harassment and unreasonably failed to otherwise avoid the alleged harm she claims she suffered. Whether Midway is liable to Ms. Jerome for alleged sex discrimination. Plaintiff Contends: Ms. Jerome contends that Defendants are liable for the sexually hostile work environment at the dealership because they failed to take reasonable actions to prevent or correct it. Defendants Contend: Midway denies Ms. Jerome was discriminated against on the basis of her sex and further denies it is liable to Jerome for its employment decisions concerning Whether Midway is liable to Ms. Jerome for alleged hostile work -9M s . her. t

sexual

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environment sex harassment. Plaintiff Contends: Ms. Jerome contends that Defendants are liable for a sexually hostile work environment. Defendants Contend: Midway denies the environment in which Ms. Jerome worked was sexually hostile and further denies it is Ms. Jerome for any alleged sexual harassment. Whether Ms. Jerome is entitled to an award of nominal damages against Midway. Plaintiff Contends: Ms. Jerome contends that she is entitled to an award of nominal damages. Defendants Contend: Midway denies Ms. Jerome is entitled to recover any damages in this action, including nominal damages. Whether Ms. Jerome is entitled to an award of compensatory against Midway. Plaintiff Contends: Ms. Jerome contends that she is entitled to an award of compensatory damages. Defendants Contend: Midway denies Ms. Jerome is entitled to recover any damages in this action, including compensatory damages. - 10 dmgs a ae liable to

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Issue #9:

Whether Ms. Jerome is entitled to an award of punitive damagesagainst Midway.

Plaintiff Contends: Ms. Jerome contends that she is entitled to an award of punitive damages. Defendants Contend: Midway denies Ms. Jerome is entitled to recover any damages in this action, including punitive damages. Issue #10: Whether Ms. Jerome has properly mitigated her damages.

Plaintiff Contends: Ms. Jerome contends that she mitigated her damages. Defendants Contend: Midway contends Ms. Jerome failed to take reasonable steps to mitigate her alleged damages. Issue #11: Whether the prevailing party is entitled to an award of reasonable costs and attorney's fees. Plaintiff Contends: If Ms. Jerome prevails at trial she will be entitled to an award of her costs and attorneys fees. Defendants Contend: Midway denies Ms. Jerome is entitled to recover any damages in this action, including attorney's fees. G. LIST OF WITNESSES

Plaintiff's: 1. Patrice Jerome (fact witness - will be called at trial) C/o Stephen G. Montoya - 11 -

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Montoya Jimenez, P.A. 3200 North Central Avenue, Suite 3200 Phoenix, Arizona 85012 (602) 256-6718 Ms. Jerome will substantiate the allegations set forth in her Complaint against the Defendants in this dispute. Maria Rivera (fact witness - will be called at trial) 8145 East Camelback, #225 Scottsdale, Arizona 85251 Ms. Rivera will testify in accordance with her deposition testimony in this matter. Mike Madrid (fact witness - may be called at trial) 9703 East Natal Avenue Mesa, Arizona 85212 (480) 558-7506 Mr. Madrid will testify consistent with his affidavit, a copy of which is already in Defendant's possession. Debra Winger (fact witness - may be called at trial) (Address and telephone number presently unknown) Ms. Winger will testify consistent with her affidavit, a copy of which is already in Defendant's possession. Charles Timothy Schirra (fact witness - may be called at trial) 6350 North 78th Street #291 Scottsdale, Arizona 85250 Mr. Schirra will testify consistent with his affidavit, a copy of which is already in Defendant's possession. - 12 -

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 10. Naima Curtis (fact witness - may be called at trial) (Last known address and telephone number already in possession of Defendants) Ms. Curtis worked with Mr. Beaman at Pinnacle Nissan under John Cleaves. Ms. (Address and telephone number presently unknown) Mr. Dederman worked with Mr. Beaman at Pinnacle Nissan under John Cleaves. Mr. Dederman has knowledge regarding the sexual harassment perpetrated by Mr. Beaman in the workplace under the supervision of Mr. Cleaves. 9. 8. 7. 6. Heather Young (fact witness - may be called at trial) (Address and telephone number presently unknown) Ms. Young will testify consistent with her affidavit, a copy of which is already in Defendant's possession. Patrick Beaman (fact witness - will be called at trial) Midway Chevrolet 2201 West Bell Road Phoenix, Arizona 85023 (602) 866-6662 Mr. Beaman has information regarding Ms. Jerome's complaint in this matter. John Cleaves (fact witness - will be called at trial) Midway Chevrolet 2201 West Bell Road Phoenix, Arizona 85023 (602) 866-6662 Mr. Cleaves has information regarding Ms. Jerome's complaint in this matter. John Dederman (fact witness - may be called at trial)

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Curtis has knowledge regarding the sexual harassment perpetrated by Mr. Beaman in the workplace under the supervision of Mr. Cleaves. Jackie Schwelling (fact witness - may be called at trial) (Address and telephone number presently unknown) Ms. Schwelling worked with Mr. Beaman at Pinnacle Nissan under John Cleaves. Ms. Schwelling has knowledge regarding the sexual harassment perpetrated by Mr. Beaman in the workplace under the supervision of Mr. Cleaves. Defendants: 1. George Athan (fact witness - may be called at trial) Current address unknown Mr. Athan is one of Plaintiff's former supervisors. He will testify concerning Plaintiff's work history, job duties and performance, work environment, allegations of sex harassment and sex discrimination, and alleged compensatory and punitive damages. He also may testify concerning Midway's policies and procedures for preventing and remedying sex harassment and sex discrimination in the workplace. 2. Patrick Beaman (fact witness - shall be called at trial) 2201 West Bell Rd. Phoenix, AZ 85023 Mr. Beaman is one of Plaintiff's former co-workers and the person Plaintiff alleges sexually harassed her. He will testify concerning Plaintiff's work history, job performance, work environment, allegations of sex harassment and sex discrimination, and alleged compensatory and punitive damages. He also may testify concerning Midway's policies and procedures for preventing and remedying sex harassment and sex discrimination in the workplace. - 14 -

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3.

Rodney Berry (fact witness - may be called at trial) Current address unknown Mr. Berry is one of Plaintiff's former co-workers. He will testify concerning

Plaintiff's work environment, allegations of sex harassment, and alleged compensatory damages. He also may testify concerning Midway's policies and procedures for preventing and remedying sex harassment and sex discrimination in the workplace. 4. Bob Carter (fact witness - may be called at trial) Current address unknown Mr. Carter held the position of Recruiter prior to Plaintiff. He will testify concerning Plaintiff's allegations of sex discrimination. He also may testify concerning Midway's policies and procedures for preventing and remedying sex harassment and sex discrimination in the workplace. 5. John Cleaves (fact witness - shall be called at trial) 2201 West Bell Rd. Phoenix, AZ 85023 Mr. Cleaves is one of Plaintiff's former supervisors. He will testify concerning Plaintiff's work history, job duties and performance, work environment, allegations of sex harassment and sex discrimination, and alleged compensatory and punitive damages. He also will testify concerning Midway's policies and procedures for preventing and remedying sex harassment and sex discrimination in the workplace. 6. Jack Colson (fact witness - shall be called at trial) 200 Brookstone Center Pkwy, Suite 205 Columbus, GA 31904 - 15 -

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Mr. Colson is one of Plaintiff's former supervisors. He will testify concerning Plaintiff's work history, job duties and performance, work environment, allegations of sex harassment and sex discrimination, and alleged compensatory and punitive damages. He also will testify concerning Midway's policies and procedures for preventing and remedying sex harassment and sex discrimination in the workplace. 7. Ricky Coulter (fact witness - may be called at trial) Current address unknown Mr. Coulter is one of Plaintiff's former co-workers. He will testify concerning Plaintiff's work environment, allegations of sex harassment, and alleged compensatory damages. He also may testify concerning Midway's policies and procedures for preventing and remedying sex harassment and sex discrimination in the workplace. 8. Thomas Mitchell, PhD (expert witness - shall be called at trial) 7878 N. 16th St., Suite 230 Phoenix, AZ 85020 Dr. Mitchell will testify regarding vocational and damages issues. Ken Shaw (fact witness/records custodian - may be called at trial) 2201 West Bell Rd. Phoenix, AZ 85023 Mr. Shaw is the current Controller and Records Custodian. He will testify concerning Midway's personnel and business records. 10. Randall Sorenson, CPA (expert witness - shall be called at trial) P.O. Box 23870 Tempe, AZ 85285

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Mr. Sorenson will testify regarding economic and damages issues. H. EXPERTS1

Defendants' Experts: 1. Thomas Mitchell, PhD 7878 N. 16th St., Suite 230 Phoenix, AZ 85020

Dr. Mitchell holds a doctor of philosophy in clinical psychology from Union Institute in Cincinnati, Ohio, a master of counseling from Arizona State University and a bachelor of arts in history from the University of Arizona. He has functioned as the branch manager of Crawford & Company in the disability management area, specializing in counseling and medical management of individuals who have diminished capacity to compete in the labor market as a result of accident, illness or environmental condition. He serves as a consultant to industry in the exploration, implementation and evaluation of employee assistance programs and maintains an ongoing caseload of clients. His administrative responsibilities include supervising both counselors and nurses who provide the above-sited services to employers, insurance carriers, attorneys, physicians, government agencies and private individuals. He current holds the position of senior vocational consultant. He also participates in the evaluation of economic consequences of disability related to a variety of situations. He has worked in the Phoenix office since February 1977. Prior to this, Dr. Mitchell was the director of Crawford Plaintiff objects to Defendant calling two expert witnesses at trial regarding the

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Rehabilitation Services, Inc. in Emeryville, California between January 1975 and February 1977. Prior to this, he worked as a counselor for Rehabilitation Consultants, Inc. in Phoenix from April 1974 to January 1975. Dr. Mitchell is a Certified Earnings Analyst through the American Rehabilitation Economics Association and professional member of that association; and Certified Professional Counselor through the Board of Behavioral Health Examiners in the State of Arizona. He also serves on the Commission on Rehabilitation Counselor Certification and is designed as a Certified Rehabilitation Counselor, Certified Disability Management Specialist, and Certified Case Manager. Between 1977 and 1980 he was a professional member of the National Rehabilitation Association Job Placement Division. Dr. Mitchell is qualified as a vocational expert, earnings analyst and forensic economist before the superior court in Arizona and California, the federal district court in Arizona and California, the Federal Bureau of Hearings & Appeals in Arizona and California, the Federal Railroad Retirement Board and Industrial Commissions of Arizona and California from 1977 to present. He is a member and past president of the Arizona Association of Vocational Rehabilitation Professionals and a past member of the National Association of Rehabilitation Professionals in the private sector. Dr. Mitchell was elected as the commissioner in 1990 for the Certified Disability Management Specialists Board in Chicago, Illinois and in 1999 was elected as commissioner with the Foundation for Rehabilitation Education and Research. HE is also a professional - 18 -

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member of the American Rehabilitation Economics Association and a recognized speaker on the Americans with Disabilities Act, life care plans, social security disability and loss of earning capacity at organizations such as the Arizona Bar Association, Counsel on Education & Management, Arizona Self-Insurer's Association, Arizona State Industrial Commission, Arizona Trial Lawyers Association, Arizona Workers' Compensation Claims Association, and Southwest Safety Congress. Dr. Mitchell will testify regarding vocational and damages issues. Dr. Mitchell may testify regarding payment structures, pay plans, compensation, and employee benefits for sales associates and other persons employed in the retail automotive sales industry in Arizona. Dr. Mitchell may evaluate the efforts of Plaintiff to seek comparable employment, as well as opportunities for comparable employment, after her separation of employment. Dr. Mitchell also may offer testimony concerning Plaintiff's attempts to mitigate her alleged damages and matters relating to the present lawsuit. 2. Randall Sorenson, CPA P.O. Box 23870 Tempe, AZ 85285

Mr. Sorenson is a Certified Public Accountant with nearly three decades of experience in the field of accounting. His areas of expertise include litigation support, accounting, auditing, taxation, and real estate. In his current practice, he provides professional, personalized CPA services including business and management consulting, business evaluations, personal injury valuations, litigation support, tax planning and preparation, financial statements, and investment - 19 -

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counseling. He holds a Bachelor of Science Degree in Business Administration from the University of North Dakota and is an active member of the American Institute of Certified Public Accountants, the Arizona Society of Certified Public Accountants, the National Association of Tax Practitioners, and the North Dakota Society of Certified Public Accountants.

Mr. Sorenson will testify regarding economic damages issues, including calculation of Plaintiff's alleged lost wages. Mr. Sorenson may offer testimony concerning Plaintiff's attempts to mitigate her alleged damages. I. LIST OF EXHIBITS

Plaintiff's: 1. Patrick Beaman's personnel file at Midway Holdings, Inc.

[Midway objects to this exhibit because it contains documents and information that are irrelevant to the claims and defenses of the parties and have no bearing on the issues the jury will be asked to decide in this case. Fed. R. Evid. 401, 402.] 2. Defendants' Responses to Plaintiff's Request for Production of Documents

[Midway objects to this exhibit because it contains no sworn, factual information relevant to the claims and defenses of the parties and has no bearing on the issues the jury will be asked to decide in this case. Fed. R. Evid. 401, 402.] 3. Depositions of Patrick Beaman and John Cleaves - 20 -

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[Midway objects to this exhibit because there is no showing that the requirements of Fed. R. Civ. P. 32(a) have been met. There is no showing that the witnesses are unavailable for trial (in fact, both are listed as witnesses on both Plaintiff's and Midway's witness lists), Plaintiff has not identified any exceptional circumstances that would warrant using their depositions as opposed to live testimony (and none exist), and Midway has not indicated an intent, and does not intend, to offer any part of the depositions in evidence. Midway also objects to the depositions because they contain considerable testimony that is irrelevant, incompetent, wasteful of time, confusing, misleading, hearsay, hearsay-within-hearsay, and unfairly prejudicial to Midway. Fed. R. Evid. 401, 403, 602, 701, 802, and 805.] 5. Consent Decree in EEOC v. Pinnacle Nissan

[Midway objects to this exhibit under Fed. R. Evid. 401, 402, and 403. Midway was not a party to this lawsuit, this lawsuit did not concern incidents of alleged harassment or discrimination at Midway, and did not even involve alleged incidents of sex harassment or sex discrimination at Pinnacle Nissan. Rather, the claims asserted against Pinnacle Nissan in the Pinnacle Nissan case were for alleged national origin harassment and retaliation. The relevancy of prior lawsuits against any employer is marginal at best, but here the lawsuit does not even involve the employer being sued. Moreover, any marginal relevancy is outweighed by the substantial danger of unfair prejudice, confusion of the

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issues, and considerations of undue delay. The jury might conclude, incorrectly and unfairly, that Midway was somehow implicated in the lawsuit against Pinnacle Nissan and must, therefore, be liable here. If evidence of this lawsuit and the resulting Consent Decree are admitted, Midway would be compelled to present rebuttal evidence concerning the nature and outcome of the lawsuit. This case would devolve into a series of mini-trials concerning the relevancy and outcome of this unrelated, other case, resulting in an unnecessarily lengthy trial for the parties, the Court, and the jury. Admitting this exhibit also would violated Fed. R. Evid. 408. 6. Undated Pinnacle Nissan Memorandum regarding Patrick Beaman

[Midway objects to this exhibit because it is not a Midway document and was not produced by Midway in this lawsuit. The document also was not produced by Plaintiff in response to Midway's requests for production. The document is unauthenticated under Fed. R. Evid. 901 and is inadmissible hearsay under Fed. R. Evid. 802. The document also contains double and triple hearsay for which no exceptions apply. Fed. R. Evid. 802, 805 There is no foundation for admitting the unauthenticated hearsay, double hearsay, and triple hearsay statements against Midway. Midway also objects to this exhibit because it is irrelevant. Fed. R. Evid. 401, 402. The document concerns alleged wrongful acts committed by Mr. Beaman at another automobile dealership prior to the time he worked for Midway. Documents purportedly concerning Mr. Beaman's

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employment with a different employer prior to Midway, and a work environment in which Plaintiff never worked, have no bearing on the issues the jury will be asked to decide in this case. Alternatively, the probative value of this document, if any, is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, and waste of time. Fed. R. Evid. 403.] 7. Memo to Patrick Beaman from John Dederman of September 20, 2000

[Midway objects to this exhibit because it is not a Midway document and was not produced by Midway in this lawsuit. The document also was not produced by Plaintiff in response to Midway's requests for production. The document is unauthenticated under Fed. R. Evid. 901 and is inadmissible hearsay under Fed. R. Evid. 802. There is no foundation for admitting the unauthenticated hearsay statements against Midway. Midway also objects to this exhibit because it is irrelevant. Fed. R. Evid. 401, 402. The document concerns alleged wrongful acts committed by Mr. Beaman at another automobile dealership prior to the time he worked for Midway. Documents purportedly concerning Mr. Beaman's employment with a different employer prior to Midway, and a work environment in which Plaintiff never worked, have no bearing on the issues the jury will be asked to decide in this case. Alternatively, the probative value of this document, if any, is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, and waste of time. Fed. R.

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Evid. 403.] 8. Written warning to Patrick Beaman from John Cleaves dated October 11, 2000

[Midway objects to this exhibit because it is not a Midway document and was not produced by Midway in this lawsuit. The document also was not produced by Plaintiff in response to Midway's requests for production. The document is unauthenticated under Fed. R. Evid. 901 and is inadmissible hearsay under Fed. R. Evid. 802. There is no foundation for admitting the unauthenticated hearsay statements against Midway. Midway also objects to this exhibit because it is irrelevant. Fed. R. Evid. 401, 402. The document concerns alleged wrongful acts committed by Mr. Beaman at another automobile dealership prior to the time he worked for Midway. Documents purportedly concerning Mr. Beaman's employment with a different employer prior to Midway, and a work environment in which Plaintiff never worked, have no bearing on the issues the jury will be asked to decide in this case. Alternatively, the probative value of this document, if any, is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, and waste of time. Fed. R. Evid. 403.] 9. Defendants' Answers to Plaintiff's Non-Uniform Interrogatories.

Defendants': 1. Application of Employment dated 4/5/02 - 24 -

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2. 3.

AutoHR, Inc. Employee Hot Line Acknowledgment dated 4/7/02 Midway Auto Team Employee Handbook [Plaintiff objects to this exhibit on grounds of foundation]

4.

Employee Hotline Poster [Plaintiff objects to this exhibit on grounds of foundation]

5.

Memo to All Employees from Ken Pfifer dated 5/2/02 regarding workplace conduct

6. 7.

Inter-office Memorandum to Patrice Jerome from John Cleaves dated 10/15/02 Memorandum to Patrice Jerome from Jack Colson dated 11/4/02 regarding recruiting

8.

Memorandum to Patrice Jerome from Jack Colson dated 11/20 regarding number of students in training November 18th - 22nd

9.

Memorandum to Patrice Jerome from Jack Colson dated 11/20 regarding making an appearance at start of training class

10.

Inter-office Memorandum to Patrice Jerome from Jack Colson dated

12/2/02 11. 12. Personnel Change of Status Notice dated 12/6/02 EEOC Charge of Discrimination dated 12/13/02 - 25 -

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13.

EEOC Intake Questionnaire dated 12/13/02 [Plaintiff objects to this exhibit on grounds of heresay and foundation]

14.

EEOC Dismissal and Notice of Rights dated 6/30/03 [Plaintiff objects to this exhibit on grounds of heresay and foundation]

15.

Documents produced and/or to be produced by Plaintiff evidencing income earned by Plaintiff from other sources of employment or self-employment subsequent to her separation from Midway's employ

16.

Documents produced and/or to be produced by Plaintiff evidencing Plaintiff's efforts to find other employment or self-employment subsequent to her separation from Midway's employ

17. J.

Any exhibit listed by Plaintiff and not objected to by Midway INFORMATION FOR COURT REPORTERS Inapplicable.

K.

DEPOSITIONS TO BE OFFERED 1. Deposition of Jack Colson dated February 8, 2006 (if unavailable for trial) Page/line numbers: 3:8 - 15:11; 15:23 - 17:10; 18:2 - 7; 18:14 - 19:18; 19:22 - 20:16; 20:19 - 34:10; 34:15 - 36:15; 36:18 - 38:10; 38:20 - 38:22;

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39:23 - 40:5; 40:11 - 47:2398:16 - 99:8; 99:22 - 100:1.2 MOTIONS IN LIMINE

Defendants' motion in limine was or will be filed on October 19, 2007. LIST OF ANY PENDING MOTIONS

Defendants' motion in limine was or will be filed on October 19, 2007. PROBABLE LENGTH OF TRIAL

Four to five days O. TRIAL DATE

January 15, 2008. P. JURY DEMAND

Plaintiff timely requested a trial by jury. Q. CERTIFICATIONS

The undersigned counsel for each of the parties in this action do hereby certify and acknowledge the following: All discovery has been completed.

Plaintiff reserves her right to object to Defendants' use of Mr. Colson's deposition in the event that Mr. Colson is unavailable at trial. Plaintiff also reserves her right to use portions of Mr. Colson's deposition at trial if Defendants persuade the Court to allow Defendants to introduce portions of Mr. Colson's deposition testimony at trial. - 27 -

2

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2. 3.

The identity of each witness has been disclosed to opposing counsel. Each exhibit listed herein (a) is in existence; (b) is numbered; and (c) has been disclosed and shown to opposing counsel.

4.

The parties have complied in all aspects with the mandates of the Court's Rule 16 Scheduling Order.

5.

Unless otherwise previously ordered to the contrary, the parties have made all of the disclosures required by the Federal Rules of Civil Procedure.

APPROVED AS TO FORM AND CONTENT: Dated the 19th day of October 2007. MONTOYA JIMENEZ A Professional Association

6WHSKHQ*0RQWR\D
Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

M. Brett Burns Stephanie K. Osteen Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Avenue Suite 4100 - 28 -

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Dallas, Texas 75201 Attorney for Defendants

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Based on the foregoing, IT IS ORDERED that this Proposed Pretrial Order jointly submitted by the parties is hereby APPROVED and is thereby ADOPTED as the official Pretrial Order of this Court.

DATED this _______ day of ___________________, 2007.

___________________________________ Mary H. Murgia United States District Judge

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