Free Statement - 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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Patrice Jerome, plaintiff, vs. Midway Holdings, Inc., Midway Auto Team, Midway Infiniti, Midway Nissan, Midway GMC, Midway Buick, Midway Pontiac, and Midway Chevrolet, defendants. Pursuant to Rule 56, Federal Rules of Civil Procedure, and Local Rule of Practice 1.10 (l)(1), Plaintiff Patrice Jerome submits the following Statement of Facts in Opposition to Defendant's Motion for Summary Judgment. Respectfully submitted this 10th day of May 2006. MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff No. CV 03-1913-PHX-MHM Plaintiff's Statement of Facts in Opposition to Defendant's Motion for Summary Judgment (Oral Argument Requested)

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STATEMENT OF FACTS 1. Ms. Patrice Jerome is a white woman. See Defendant's Statement of Facts, p. 2, ¶ 3. 2. Ms. Jerome started her employment with the "Midway Auto Team" on approximately April 7, 2001. See Deposition of Patrice Jerome, p.45, lines 11-15, attached hereto as Exhibit A. 3. The "Midway Auto Team" consists of the following automobile dealerships, Midway Infiniti, Midway Nissan, Midway GMC, Midway Buick, Midway Pontiac, and Midway Chevrolet, all of which do business collectively as the "Midway Auto Team." See Defendant's Statement of Facts, p. 2, lines 25-26, footnote 2, and Deposition of Patrice Jerome, p.71, lines 12-17, attached hereto as Exhibit A. 4. During all times material to this proceeding, Mr. John Cleaves was the General Manager of the Midway Auto Group. See Defendant's Statement of Facts, p. 4, ¶ 11. 5. Midway initially hired Ms. Jerome to work as an "Assistant Sales Manager" at Midway Nissan. See Deposition of Patrice Jerome, p.73, lines 5-15, attached hereto as Exhibit A. 6. When Ms. Jerome was employed as an Assistant Sales Manager at Midway Nissan, one of her supervisors at the dealership, Desk Manager Jerry Schwelling, "use[d] the word 'nigger' frequently." Id. at p. 82, lines 3-25, p. 83, lines 1-15. 7. Ms. Jerome complained of Mr. Schwelling's use of this racial slur to Mr. Schwelling's direct supervisor at the dealership, Midway Nissan Floor Manager Mr. Rodney Berry. Id. at p. 84, lines 15-21. 8. Mr. Berry responded that Mr. Schwelling's racial slur "didn't bother him" and that "Jerry Schwelling was there because of Mr. Cleaves. Mr. Cleaves wants him there." And he said "whatever Mr. Cleaves wants, I will do, including mopping the floors." Id. at p. 84, lines 15-21, and p. 85, lines 1-13. 9. On another occasion, a co-worker at Midway Nissan named Mike Moss referred to
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Ms. Jerome as a "cunt." Id. at p. 95, lines 22-24, p. 95, lines 6-8, p. 97-98. 10. Midway subsequently promoted Ms. Jerome to the position of "Floor Manager" at Midway Infiniti. Id. at p. 116, lines 4-11. 11. Midway subsequently promoted Ms. Jerome to the position of "Director of Recruiting" for the entire Midway Auto Team on approximately September 1, 2002. Id. at p.45, lines 11-15, and p. 133, lines 24-25, 134, lines 1-2. 12. Mr. Patrick Beaman was Ms. Jerome's direct supervisor in her capacity as Director of Recruiting. Id. at p.131, lines 17-21, p. 141, lines 7-9, p. 142, lines 24-25, and pp. 143-145. 13. Mr. Beaman was the "Recruiting Manager" of the Midway Auto Group. Id. at p.131, line 25. 14. Ms. Jerome was assigned to work in Mr. Beaman's office. Id. at p.139, lines 17-24, and p. 146, lines 12-24. 15. Mr. Beaman has a history of perpetrating discriminatory harassment while working under the supervision of John Cleaves at car dealerships. See attached Exhibits B, C, and D. 16. Specifically, while employed as the "Human Resource Director" of a car dealership named Pinnacle Nissan in Scottsdale, Arizona in September of 2000, Mr. Beaman was accused of sexually harassing one of his female subordinates. See attached Exhibits B and C. 17. Similarly, while still employed as the Human Resources Director of Pinnacle Nissan in October of 2000, Mr. Beaman and another manager at Pinnacle Nissan referred to Middle-Eastern customers as "dot-heads," "sand-niggers," and "cheap." See attached Exhibit D. 18. Although John Cleaves was employed as the General Manager at Pinnacle Nissan and was Mr. Beaman's direct supervisor when each complaint was made and investigated, Mr. Cleaves did not discipline Mr. Beaman based on either incident. See Deposition of John Cleaves, pp. 18-20, attached hereto as Exhibit E.
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19.

To the contrary, Mr. Cleaves thought that Mr. Beaman did a "good job" at Pinnacle Nissan, and Mr. Cleaves hired Mr. Beaman to work for the Midway Auto Team under Mr. Cleaves. Id.

20.

During the course of Mr. Beaman's supervision of Ms. Jerome at Midway, Mr. Beaman directed Ms. Jerome to "only hire white males in their twenties with flat guts." See Exhibit A, pp. 175, 179, and 181.

21.

Mr. Beaman also directed Ms. Jerome to discriminate against people based upon their age. As Ms. Jerome testified in her deposition: Question Answer: And this is your allegation that Mr. Beaman told you to hire flat gut twenty-year old white males? [Mr. Beaman] also didn't like me to hire older people. I have a complaint about that as well. And that's discriminatory against me, because I was required to do something I could not do, or discriminate against other people. . . upon interviewing older candidates, he would tell me that, do them a favor, suggest them to go down to Walmart and be a door opener, a door greeter, instead not to waste my time on interviewing older candidates. He even had me pick-up--call an ASM [Assistant Sales Manager] to come over and interview older people so they could do three by five interview. I had--he had to explain that to me, I had to explain that to, you know, ASM. I don't mean to interrupt you, but can you tell me what that means, a three by five interview? It is, "what have you done in the last three years? What are you going to do in the next five years?" And at the conclusion of the interview you tell them the hiring committee will make a decision and get back to them. And we didn't have a hiring committee.

Question: Answer:

Id. at p. 258, lines 1-25, p. 259, lines 1-8. 22. Mr. Beaman also directed Ms. Jerome to discriminate against single mothers. Specifically, Ms. Jerome testified in her deposition that: First, [Mr. Beaman] told me not to ask if they had daycare provided, but once I found out, to conclude that they wouldn't be an appropriate candidate. . . whenever I was compelled to hire someone who seemed desperate for a job and I felt compassionate, to remind myself that it took him a full year to properly staff the Pinnacle [Nissan] dealership, and to remind
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himself, he kept a picture in his drawer and he described that picture to me, of a twenty-year old white guy with a flat gut. Id. at p. 259, lines 21-25, p. 260, and p. 261, lines 1-3. 23. Sometimes Ms. Jerome was forced to disqualify a job applicant based upon Mr. Beaman's discriminatory hiring criteria. As Ms. Jerome testified in her deposition: Question: So were there times when you personally disqualified someone because this is what Mr. Beaman told you to look for or not to look for in an applicant. Not because--no. They would be in my office, and he would tell me to call the ASM to come and complete the interview, for me not to waste my time. And you would do that? I would have to. He's my supervisor. How many times did this happen? Often.

Answer:

Question: Answer: Question: Answer:

Id. at p. 261, lines 21-25, p. 262, lines 1-5. 24. Mr. Beaman also described a Hispanic job applicant to Ms. Jerome as a "wetback who's too big for his shoes." Id. at pp. 287-290. 25. Mr. Beaman also told Ms. Jerome that a Hispanic employee at Midway Pontiac was an "overdressed spic in a cheap suit." Id. at p. 263, lines 7-13, pp. 288-289. 26. Mr. Beaman also directed Ms. Jerome not to hire people with strong religious convictions because Midway's "hires" needed "a little larceny in their hearts." Id. at p. 292, lines 10-15. 27. As Ms. Jerome testified in her deposition: I distinctly remember the gentlemen that he was discussing, I can't remember his religious affiliation, I want to say Seventh Day Adventist because he had a problem working on a scheduled Saturday, which I directed him to discuss with his ASM at Nissan, and Mr. Beaman critiqued me--criticized me, I should say for hiring him because of the religious affiliation, and that's when he made the comment, "anyway, you shouldn't be hiring people with religious backgrounds because they need to have a little larceny in their hearts." Id. at p. 292, lines 10-25, p. 293, lines 1-18.
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28.

Similarly, Ms. Jerome testified that: The racial comments were rampage [sic, rampant] in the dealership, the whole auto team. The employees made comments as well. And I complained to other people about that. Specifically, I think I mentioned Ken Pfifer. And that was regarding Mike Moss. So there were several times when those comments were made, and I complained about them. That was when I was an assistant sales manager. I wasn't actually in a higher management position. And I went to my supervisors. Id. at p. 298, lines 23-25, p. 299, lines 1-6.

29.

When Ms. Jerome attempted to ignore Mr. Beaman's discriminatory hiring directives, he retaliated against her by criticizing her work performance and verbally abusing her. Id. at p. 292, lines 22-25.

30.

On approximately October 14, 2002, Mr. Beaman summarily terminated Ms. Jerome's employment with the Midway Auto Team and ordered her to immediately leave the dealership. Id. at p. 158, lines 3-24.

31.

As Ms. Jerome was leaving the dealership, Mr. Beaman followed her and told her on the showroom floor of Midway Pontiac, "I want you to pack up your things. You're fired. This is the last time I'm ever going to see your face again, you worthless cunt." Id. at p. 159, lines 16-22.

32.

Ms. Jerome did not respond to Mr. Beaman's remark. Ms. Jerome testified, "my knees were shaking. I was scared. He was so close behind me that I just, it wasn't a comfortable feeling." Id. at p. 163, lines 6-22.

33.

Ms. Jerome subsequently called Midway's "1-800" number to complain of her termination. Id. at pp. 165-171.

34.

On the next day, Ms. Jerome met with Mr. Beaman and Midway General Manager, Mr. John Cleaves. Id. at pp. 171-174.

35.

At the meeting, Ms. Jerome specifically complained to Mr. Cleaves that Mr. Beaman had given her discriminatory hiring directives and that she was unable to do her job effectively as a result. Id. at p. 175, lines 1-13, p. 179, lines 12-16, p. 181, lines 421, and p. 311, lines 13-23.

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36.

Ms. Jerome did not tell Mr. Cleaves that Mr. Beaman had called her a "worthless cunt" because she "was ashamed." Id. at p. 176, lines 16-25.

37.

Although Mr. Cleaves reinstated Ms. Jerome's employment with the dealership, Mr. Cleaves did not admonish Mr. Beaman in any way. Id. at pp. 173-186.

38.

To the contrary, rather than disciplining Mr. Beaman for instigating discriminatory hiring practices, Mr. Cleaves proceeded to give Ms. Jerome advice on how to execute Mr. Beaman's directives. Id. at p. 175, lines 1-13.

39.

Mr. Cleaves also told Ms. Jerome that Midway's Director of Training, Mr. Jack Colson, was her new direct supervisor. Id. at p. 186, lines 4-14.

40.

However, Ms. Jerome continued to work in Mr. Beaman's office, and Mr. Beaman continued to supervise Ms. Jerome on a daily basis. Id. at pp. 351-352.

41.

Specifically, as Ms. Jerome testified in her deposition: Question: Did Patrick Beaman stop supervising you in the workplace at Midway at any time during your tenure of employment there? No. Jack Colson, was he ever your supervisor? No. Did Jack Colson ever direct your day to day activities in the workplace at the Midway Group? No, that would have been Patrick Beaman.

Answer: Question: Answer: Question: Answer:

Id. at p. 351, lines 15-25, p. 352, lines 1-7. 42. Moreover, almost immediately after Ms. Jerome complained about Mr. Beaman's discriminatory hiring directives to Mr. Cleaves on October 15, 2002, Mr. Colson proceeded to criticize Ms. Jerome's work performance on November 4, 2002, November 20, 2002 and December 2, 2002. See Defendant's Statement of Facts, ¶ 11, 12, 13, 14, and 15. 43. Before Ms. Jerome complained about Mr. Beaman, she had never been reprimanded by the dealership. Id.

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44.

To make matters worse, Mr. Beaman continued to make discriminatory remarks in the workplace. As Ms. Jerome testified in her deposition: Question: During the entire time that you worked at the Midway Group, tell me when Mr. Beaman stopped making discriminatory remarks at work. When I was fired the second time.

Answer:

See Exhibit A at p. 352, lines 8-11. 45. As Ms. Jerome further described Mr. Beaman's continuing harassment, "the fact [is] that I was still in his office and was still directing comments to me on a daily basis, critiquing who I was interviewing and my interviewing process." Id. at p. 301, lines 8-17. 46. Ultimately, as a result of alleged "poor performance," Midway terminated Ms. Jerome's employment with the dealership on December 6, 2002. Id. at p. 229, lines 17-19. 47. However, Ms. Jerome's alleged "poor" work performance was a direct result of the discriminatory hiring directives imposed upon her at the Midway Auto Group. As Ms Jerome testified in this regard: Question: Is it your testimony that you were not able to recruit the requisite number of people because of the hiring directives you say you were subjected to? Correct.

Answer:

See Exhibit A at p. 306, lines 5-8. Respectfully submitted this 10th day of May 2006. MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

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I hereby certify that on May 10, 2006, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Stephanie K. Osteen Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Avenue Suite 4100 Dallas, Texas 75201 Attorneys for Defendants

I hereby certify that on May 11, 2006, I served the foregoing document by hand-delivery to the following: The Honorable Mary H. Murguia United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

s/ Stephen G. Montoya

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