Free Statement - District Court of Arizona - Arizona

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M. Brett Burns (admitted pro hac vice) [email protected] Stephanie K. Osteen (admitted pro hac vice) [email protected] AKIN GUMP STRAUSS HAUER & FELD LLP 1700 Pacific Avenue, Ste. 4100 Dallas, Texas 75201 (214) 969-2800 facsimile (214) 969-4343 Tricia Schafer (018748) MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.C. 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012 (602) 889-5341 facsimile (602) 285-5100 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Patrice Jerome, Plaintiff, v. DEFENDANTS' UNDISPUTED STATEMENT OF FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CV03-1913-PHX-MHM

Midway Holdings, Inc. et al. Defendants.

Defendants Midway Holdings, Inc. and Midway Chevrolet, Inc. (collectively "Midway Auto Team") file this Statement of Undisputed Facts ("DSOF") in Support of

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Their Motion for Summary Judgment, filed contemporaneously herewith. The following facts, assumed to be true for purposes of this Motion, are established by the deposition testimony, declarations, and documents1 attached hereto. FACTS RELEVANT TO THIS MOTION Background 1. On September 30, 2003, Plaintiff Patrice Jerome filed the present lawsuit,

and asserted claims of sexual harassment, retaliation, and age, sex, and religious discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621; and the Civil Rights Act of 1991, 42 U.S.C. § 1981 against Midway Holdings, Inc.,2 Midway Chevrolet, Inc., and Automotive Investment Group, Arizona (See Pl.'s Cmpl., Docket Entry No. 1.) 2. On March 16, 2005, the Court granted the parties' Stipulation of Partial

Dismissal with Prejudice, dismissing all of Plaintiff's claims against Automotive Investment Group­Arizona. (See Docket Order No. 40.) Midway Auto Team's Anti-Harassment and Reporting Policies 3. Ms. Jerome, a Caucasian female, is a former employee of Midway Auto

Team. (Ex. A, Jerome Depo. 45:11-15.) 4. Plaintiff began her employment with Midway Auto Team in April 2002.

(Ex. A, Jerome Depo. 45:11-15.) Plaintiff was terminated from her employment on December 6, 2002. (Ex. J, Personnel Change of Status Notice.) 5. In or around April 2002, Plaintiff interviewed with Bob Carter (recruiting

director), Larry Smith (general sales manager), and Joe Triola (general sales manager) at Midway. (Ex. A, Jerome Depo. 43:20-44:9.) She was hired as an assistant sales manager
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All documents attached are exhibits to the transcript of Patrice Jerome. Midway Holdings, Inc. consists of Midway Infiniti, Midway Nissan, Midway GMC, Midway Buick, and Midway Pontiac, collectively doing business as "Midway Auto Team."

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at Midway Nissan. (Ex. A, Jerome Depo. 45:11-15.) She later became a floor manager for Midway Infiniti. (Ex. A, Jerome Depo. 73:8-10.) 6. In or around September 1, 2002, Plaintiff became the recruiting director for

Midway Auto Team. (Ex. A, Jerome Depo. 76:5-7.) On or around October 15, 2002, Jack Colson became her supervisor. (Ex. A, Jerome Depo. 142:4-6; Ex. E, Colson Depo. 16:6-18; Ex. F, October 15, 2002 Inter-Office Memorandum.) 7. Plaintiff testified that she did not have performance problems and that she

performed "very well." (Ex. A, Jerome Depo. 119:11-14; 147:1-9.) 8. Midway Auto Team has Equal Employment Opportunity and Anti-

Harassment policies that expressly prohibit discrimination and harassment. (Ex. L, AntiHarassment Policies, Ex. A, Jerome Depo. 54:17-25.) Plaintiff received copies of these policies when she began her employment. (Ex. A, Jerome Depo. 55:10-56:4; 58:5-9.) 9. Midway Auto Team subscribed to an Employee Report Line encouraging

employees to use the 1-800 number to report any complaints, including complaints of harassment and discrimination, that employees may not feel comfortable discussing with their supervisors, and Plaintiff signed forms acknowledging her awareness of the policy. (Ex. A, Jerome Depo. 54:6-55:3; Ex. L, Anti-Harassment Policies.) The Employee Report Line is promoted in written policies and pamphlets given to employees and in posters at the dealership. (Ex. A, Jerome Depo. 55:10-56:4; 58:5-9.) Plaintiff was aware of the Employee Report Line and used it during her employment. (Ex. A, Jerome Depo. 58:5-9; 169:25-170:20.) As a recruiter with responsibility for conducting orientation sessions for new hires, she instructed new hires on the employee hotline and distributed flyers with the hotline number and instructions on its use. (Ex. A, Jerome Depo. 62:1-10.)

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Plaintiff's Performance Problems Plaintiff was informed that her employment was terminated for job

abandonment on or around October 11, 2002. (Ex. A, Jerome Depo. 147:25-148:22.) Plaintiff used the Employee Report Line to report that "she was confused" about the situation. (Ex. A, Jerome Depo. 169:25-170:20.) Plaintiff was reinstated to her position on October 15, 2002. (Ex. A, Jerome Depo. 164:2-5; 174:20-175:6.) 11. Jerome was given five written reprimands and numerous verbal reprimands

during the few months she held the recruiter position. The first write-up was given to Jerome by Midway Auto Team General Manager John Cleaves approximately one month after she started, when she was a no-call/no-show for work on Friday and then skipped working at a Midway "tent sale" the next day. (See Ex. F, October 15, 2002 Inter-Office Memorandum.) 12. The second write-up was given to Ms. Jerome by supervisor Jack Colson

approximately three weeks later, counseling her about producing an insufficient number of salesperson candidates (she produced 8 and needed to produce 20), and offering some suggestions for improvement. (See Ex. G, November 4, 2002 Memorandum.) Ms. Jerome admitted that she liked Mr. Colson, thought he was a nice guy, never heard him make any inappropriate remarks or comments or saw him act inappropriately, and said that he often offered to help her with work. (Ex. A, Jerome Depo. 200:4-16; 209:13-17.) 13. The third and fourth write-ups were given to Jerome by Mr. Colson

following verbal counseling for arriving late to the training classes for her recruits and again producing an insufficient number of salesperson candidates (she produced 9 and needed to produce 20). (See Ex. H, November 20, 2002.) 14. The fifth and final write-up was given to Jerome by Mr. Colson following

"several" verbal counseling incidents for insufficient production, insufficient recruit

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quality, and failing to answer calls from 148 candidates who called Jerome in response to a job advertisement in the local newspaper. In this final write-up, among other things, Mr. Colson commented that "[i]t is becoming obvious that you are either not committed to performing this job or unable to, or perhaps, some of both" and stated clearly that "[her] continued employment is at risk" and "[o]ur expectations have absolutely not been met." (See Ex. I, December 2, 2002 Inter-Office Memorandum.) 15. Four days later on December 6, 2002, Ms. Jerome was terminated by Mr.

Colson for "lack of performance." (See Ex. J, Personnel Change of Status Notice; Ex. E, Colson Depo. 29:24-30:1.) Mr. Colson made the decision to terminate her. (Ex. E, Colson Depo. 29:24-30:1; 39:19-40:5.) Upon hearing the news of her termination, Plaintiff did not protest, complain of retaliation or discrimination, or even express disagreement ­ she later said she felt relief. (Ex. A, Jerome Depo. 231:5-13.) Plaintiff's Harassment Allegations 16. Early in her employment, Plaintiff alleges that coworker Mike Moss greeted

her by asking her how a "cunt like her" got a job at Midway Auto Team. (Ex. A, Jerome Depo. 94:9-21.) She reported the incident to Rodney Berry (an assistant sales manager at Midway Nissan) and to her supervisor, Ken Pfifer. (Ex. A, Jerome Depo. 98:3-23; 99:1321.) Plaintiff testified that she felt Pfifer's and Berry's responses to the situation were "reasonable" and addressed her complaint. (Ex. A, Jerome Depo. 100:15-19; 101:15-16.) 17. Three months before her employment ended, Plaintiff alleges that she

overheard coworker Patrick Beaman mutter "worthless cunt" while following her on the showroom floor out of the dealership after an argument over her failing to show up for work. (Ex. A, Jerome Depo. 158:25-159:22.) Plaintiff never complained to anyone, including the Employee Report Line or anyone in management, about this alleged incident, despite meeting with Mr. Cleaves the following workday in counseling session.

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(Ex. A, Jerome Depo. 170:21-24.) Plaintiff was also unable to identify any witnesses who definitely heard this comment Mr. Beaman allegedly made. (Ex. A, Jerome Depo. 160:34-161:3.) She thought that someone named "Amy," someone named "Ted," and the "Russian gal" may have heard of it, but she was not certain. (Ex. A, Jerome Depo. 161:19-163:2.) 18. Plaintiff alleges that Mr. Beaman once showed her a photograph of a

successful job applicant and told her that she should hire "flat gut, 20-year old white males" like the person in the photograph. (Ex. A, Jerome Depo. 260:21-261:3.) 19. During a counseling meeting, on or around October 15, 2002, Plaintiff

alleges that she told her supervisor, Midway Auto Team General Manager John Cleaves that she "could not find enough 20-year-old white guys who wanted to sell cars." (Ex. A, Jerome Depo. 179:8-180:3; Ex. B, Cleaves Depo. 12:17-25.) 20. Midway Auto Team hired salespersons, during Plaintiff's tenure, of both

sexes, who were non-white, and older then twenty. (Ex. A, Jerome Depo. 307:21-308:8; Ex. E, Colson Depo. 10:18-12:3.) 21. Plaintiff testified that Mr. Beaman once referred to a Hispanic job applicant

as a "wetback who's too big for his shoes." (Ex. A, Jerome Depo. 287:12-16.) She also claims that Mr. Beaman referred to a Hispanic employee as an "overdressed spick in a cheap suit." (Ex. A, Jerome Depo. 288:23-289:4.) Plaintiff never complained about these alleged comments to anyone. (Ex. A, Jerome Depo. 299:16-23; 300:9-13.) 22. Plaintiff claims coworker Jerry Schwelling used the term "nigger" in the

workplace. (Ex. A, Jerome Depo. 82:21-83:1.) Plaintiff's Post-Termination Employment 23. At the time of her termination in December 2002, there were several jobs

advertised in the Arizona Republic at car dealerships in the Phoenix area. (See Ex. K, Aff.

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of Dr. Mitchell ¶¶ 6, 7.) Some of the positions advertised listed salaries ranging from $35,000 to $80,000. (See Ex. K, Aff. of Dr. Mitchell ¶ 7.) 24. Plaintiff recalls applying for only one job in the auto industry after her

separation from Midway. (Ex. A, Jerome Depo. 318:16-319:4.) Instead of pursuing such employment, however, she decided to work as an independent contractor for three months with Western Pacific in a completely different field and career, earning $1,035. (See Ex. K, Aff. of Dr. Mitchell ¶ 7; Ex. A, Jerome Depo. 341:1-16.) 25. After three months of employment with Western Pacific, she quit. Plaintiff

then spent six months working for a pharmaceutical research company, where she earned $2,700. (Ex. K, Aff. of Dr. Mitchell ¶ 7.) In 2004, she switched industries again, this time working in the mortgage industry for three different companies during the calendar year: Prime Mortgage (where she earned $15,719), Concord Mortgage (where she earned $1,500), and Homeowners Mortgage (where she earned between $3,000 and $4,000). (See Ex. K, Aff. of Dr. Mitchell ¶ 8.) 26. Finally in 2005, she earned $800 working for United Financial (another

mortgage company) and then switched careers again to interior design, where she worked for her sister and earned $3,000. (See Ex. K, Aff. of Dr. Mitchell ¶ 9.) Respectfully submitted,

/s/ Stephanie K. Osteen M. Brett Burns (admitted pro hac vice) Stephanie K. Osteen (admitted pro hac vice) Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Avenue, Ste. 4100 Dallas, TX 75201-4618 (214) 969-2800 facsimile (214) 969-4343 Tricia Schafer (018748)

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#5869053

Mariscal, Weeks, McIntyre & Friedlander, P.C. 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012 (602) 889-5341 facsimile (602) 285-5100 Attorneys for Defendants I hereby certify that on this 31st day of March, 2006, I electronically transmitted the foregoing 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]: Stephen G. Montoya Montoya Jiminez, P.A. 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 Attorney for Plaintiff COPY hand-delivered to: Honorable Mary H. Murguia United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 525 401 West Washington Street, SPC 53 Phoenix, Arizona 85003-2154

By: /s/ Stephanie K. Osteen

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