Free Response in Opposition to Motion - 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

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Patrice Jerome, plaintiff, vs. Midway Holdings, Inc. and Midway Chevrolet, Inc., defendants. Plaintiff hereby responds to Defendants' Motion in Limine in this matter and asks that the Motion be denied for the reasons set forth in detail below. Respectfully submitted this 5th day of November 2007. MONTOYA JIMENEZ A Professional Association No. CV 03-1913-PHX MHM Plaintiff's Response in Opposition to Defendants' Motion in Limine

Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

Stephen G. Montoya

Case 2:03-cv-01913-MHM

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MEMORANDUM OF POINTS AND AUTHORITIES Evidence of Patrick Beaman's discriminatory misconduct at Pinnacle Nissan is probative of whether or not Mr. Beaman engaged in discriminatory misconduct at Midway because Mr. Beaman was supervised by the same individual, Mr. John Cleaves, at both dealerships.

Patrick Beaman is a former employee of "Pinnacle Nissan," an automobile dealership in Scottsdale, Arizona. See Deposition of John Cleaves, attached hereto as Exhibit A, pp. 8-20. During Mr. Beaman's tenure of employment at Pinnacle Nissan, he was supervised by the General Manager of the dealership, Mr. John Cleaves. Ms. Neima Curtis worked with Patrick Beaman at Pinnacle Nissan. During the time period that they worked together at the dealership, Ms. Curtis complained that she believed that Patrick Beaman had sexually harassed her by attempting to tuck in her hanging shirt tails into her pants. See attached Exhibit B. Patrick Beaman was ultimately reprimanded for his conduct in reference to Ms. Curtis by (among others) the General Manager of Pinnacle Nissan, Mr. John Cleaves. Mr. Charles Schirra also worked with Mr. Beaman at Pinnacle Nissan. When working with Mr. Beaman at Pinnacle Nissan, Mr. Schirra stated that Mr. Beaman referred to people from the middle east as "dot-heads" and "towel-heads." See Affidavit of Charles Schirra, attached hereto as Exhibit C. Although Mr. Schirra was reported his allegation against Mr. Beaman to Mr. Cleaves, Mr. Cleaves did not investigate the complaint or discipline Mr. Beaman in any way in response to the complaint. Id. To the contrary, when Mr. Cleaves transferred his employment from Pinnacle Nissan to Midway, he asked Patrick Beaman to also transfer to the new dealership. In his deposition of March 1, 2005, Mr. Cleaves further testified that at this juncture he supervises the present General Managers of both the Midway Auto Group and Pinnacle Nissan. See Exhibit A, p. 8, lines 21-25. In the Joint Final Pretrial Statement in this matter, Midway has raised the affirmative -2-

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defense recognized by the Supreme Court of the United States in Ellerth v. Burlington Industries, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), claiming Midway has an anti-discrimination policy which it both promulgates and enforces in good faith. The evidence of Patrick Beaman's misconduct at Pinnacle Nissan­and Mr. Cleaves' toleration of that discriminatory misconduct at Pinnacle Nissan­is probative of whether or not Mr. Cleaves continued to tolerate Mr. Beaman's discriminatory misconduct at Midway. Specifically, in the Final Pretrial Order, Midway claims that it does not tolerate discriminatory misconduct in the workplace by Mr. Beaman or anyone else. The finder-offact could reasonably conclude that the fact that Mr. Cleaves tolerated discriminatory misconduct perpetrated by Patrick Beaman at Pinnacle Nissan supports Ms. Jerome's claims that Mr. Cleaves tolerated discriminatory misconduct perpetrated by Mr. Beaman at the Midway. Although Midway asserts that the introduction of this information into evidence at trial will needlessly confuse the jury and result in several "mini-trials," this assertion is refuted by the limited number of both witnesses and exhibits that the parties to this case have set forth in the Final Pretrial Order governing the trial of this case. Moreover, any alleged potential prejudice resulting from the introduction of this information into evidence could be cured by a limiting instruction advising the jury that it is only to consider this evidence when evaluating Midway's affirmative defenses under Ellerth and Faragher. Accordingly, for the foregoing reasons, this important evidence should not be excluded at trial. 2. The Allegedly "Unrelated" Lawsuit Against Pinnacle Nissan.

In the list of her trial exhibits in the Final Pretrial Statement, Ms. Jerome listed the consent decree entered in the case of EEOC v. Pinnacle Nissan, Inc., No. CIV 00-1872 PHX-MHM. Ms. Jerome listed this exhibit because both Patrick Beaman and John Cleaves were employed at Pinnacle Nissan during the pendency of EEOC v. Pinnacle Nissan and both Mr. Cleaves and Mr. Beaman were material witnesses in EEOC v. Pinnacle Nissan. -3-

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Ms. Jerome does not intend to use the Consent Decree in EEOC v. Pinnacle Nissan as part of her case-in-chief at trial. However, Ms. Jerome reserves the right to use the exhibit solely for purposes of impeachment if the circumstances arise that would warrant the use of the exhibit in such a manner. Moreover, Ms. Jerome reserves the right to use the Consent Decree in EEOC v. Pinnacle Nissan in the event that Midway "opens-the-door" on this issue at trial. 3. Discriminatory Acts Based On Characteristics Other Than Gender Are Relevant To This Dispute Because They Are Probative Of The Validity Of Midway's Affirmative Defenses.

As set forth in detail in Ms. Jerome's response in opposition to Midway's Motion for Summary Judgment, when Ms. Jerome was employed at Midway, the dealership was permeated by discriminatory remarks about women, racial minorities, religious groups, and the elderly. Midway contends that discriminatory comments not directed at women are irrelevant because they allegedly are not probative of whether or not Ms. Jerome was subjected to discrimination on the basis of her gender at Midway. Midway's contentions in this regard miss the point. As already indicated above, Midway claims that it does not tolerate unlawful discrimination in the workplace. Of course, this broad assertion is easily undermined by evidence that discrimination of all types pervaded the workplace at Midway. Accordingly, by invoking the affirmative defenses recognized by the Supreme Court in Ellerth and Faragher, Midway has "opened-the-door" to the introduction of this line of evidence at trial. In other words, how can Midway reasonably contend that it does not tolerate discrimination in the workplace when women, racial minorities, religious groups, and the elderly were routinely and openly verbally denigrated in the workplace by subordinates and supervisors alike at the dealership? For this reason, discriminatory remarks directed against characteristics (race, religion, age, etc.) other than gender are both relevant and material to the resolution of this dispute.

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4.

Discriminatory Comments At Midway Not Directly Heard By Ms. Jerome.

Midway next seeks to exclude from evidence at trial discriminatory remarks at Midway not heard by Ms. Jerome. This evidence is relevant to the resolution of Ms. Jerome's claims because it is material to Midway's affirmative defenses under Ellerth and Faragher. Specifically, Midway's senior managers, including Mr. John Cleaves, cannot persuasively claim that they did not tolerate discriminatory comments in the workplace at Midway if evidence shows that their subordinates routinely and openly made discriminatory remarks without ever being disciplined for doing so. Accordingly, this evidence is material to Midway's affirmative defenses. If Midway truly desires to exclude them from evidence, it could render them virtually irrelevant by withdrawing its affirmative defenses under Ellerth and Faragher. However, by invoking the affirmative defenses of Ellerth and Faragher, Midway has in effect "opened-the-door" to this line of evidence. 5. Alleged "Stray Remarks."

Midway next seeks to exclude from evidence at trial "alleged stray remarks that were made by a person other than the person who made the decision to terminate [Ms. Jerome] or that were unrelated to the decision making process. . ." See Defendants' Motion in Limine, p. 5, lines 22-26. As already explained above, Midway has opened the door to the introduction into evidence of such remarks by invoking the affirmative defenses under Ellerth and Faragher. See Dominguez-Curry v. Nevada Transport Authority, 424 F.3d 1037, 1038-1040 (9th Cir. 2005). Moreover, Midway's Motion in Limine regarding "alleged stray remarks" should also be denied because Midway has completely neglected to identify any of the allegedly "stray remarks" that it seeks to exclude from evidence. Without knowing the specifics of any allegedly stray remarks, it is impossible for Ms. Jerome to evaluate whether the specific remarks which Midway seeks to exclude are probative of any of Ms. Jerome's claims or Midway's defenses. -5-

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6.

Patrick Beaman's Directive To Ms. Jerome That She Should Only Hire "20-Year-Old White Guys With Flat Guts" Is Material To Ms. Jerome's Claims And Midway's Affirmative Defenses.

Surprisingly, Midway seeks to exclude Patrick Beaman's hiring directive that Ms. Jerome should only hire "twenty-year-old white guys with flat guts." This remark is relevant because it goes to Ms. Jerome's gender harassment claim, in light of the fact that her direct supervisor at Midway, Mr. Patrick Beaman, told her to only hire white males. See Dominguez-Curry v. Nevada Transport Authority, 424 F.3d 1037, 1038-1040 (9th Cir. 2005). Mr. Beaman's discriminatory hiring directive is also probative of Midway's affirmative defenses under Ellerth and Faragher, namely, whether or not Midway tolerates discrimination in the workplace. Given the fact that Mr. Beaman was a senior supervisor at Midway, if he is issuing discriminatory hiring directives to his subordinates, it is less likely that Midway is as intolerant of discrimination in the workplace as it claims. 7. Dismissed Claims And Parties.

Midway next moves to exclude from evidence at trial "evidence or arguments concerning former Defendant Automotive Investment Group, Inc., and all claims Plaintiff asserted in this lawsuit that had been dismissed with prejudice." See Defendants' Motion in Limine, p. 6, lines 18-20. Unfortunately, Midway does not specify what evidence or arguments it seeks to exclude. Because Midway failed to provide sufficient specificity for Ms. Jerome to respond to this issue, Midway's Motion in Limine on this issue should be denied without prejudice. The Court can address the issue if and when Midway provides more specifics during the trial of this matter. 8. Evidence Of Other Lawsuits, Etc.

Midway next moves to exclude evidence or arguments relating to other lawsuits etc. Ms. Jerome does not oppose this aspect of Midway's Motion in Limine, but reserves her right to address the issue at trial in the event that Midway opens-the-door to this line of evidence at trial.

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9.

Partial Denial Of Motion for Summary Judgment.

Ms. Jerome does not oppose Midway's Motion in Limine to deny any evidence or arguments concerning the Court's partial denial of Defendants' Motion for Summary Judgment. 10. Damages Not Specified In Plaintiff's Discovery Responses.

Ms. Jerome does not oppose Midway's Motion in Limine to exclude damages not specified in Ms. Jerome's discovery responses, but reserves her right to introduce any such evidence in the event that Midway opens-the-door to this line of evidence at trial. In addition, Ms. Jerome reserves her right to use any undisclosed exhibit solely for purposes of impeachment. 11. Unproduced Documents.

Ms. Jerome does not oppose Midway's Motion in Limine to exclude unproduced documents at trial, but reserves the right to readdress this issue at trial if Midway opensthe-door to such evidence or such evidence is used only for purposes of impeachment. 12. Midway's Failure To Call Any Witness Not Under Their Control.

Ms. Jerome does not oppose Midway's Motion in Limine to exclude evidence of Midway's failure to call any witness who is actually not under their control or outside of the court's subpoena powers. Respectfully submitted this 5th day of November 2007. MONTOYA JIMENEZ A Professional Association

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 November 5, 2007, 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 Tricia Schafer Mariscal, Weeks, McIntyre & Friedlander, P.A. 2901 North Central Avenue Phoenix, Arizona 85012 Attorneys for Defendants 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

Stephen G. Montoya

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