Free Supplement - District Court of Arizona - Arizona

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David C. Larkin #006644 DAVID C. LARKIN, P.C. 4645 South Lakeshore Drive, Suite 6 Tempe, Arizona 85282 Telephone (480) 491-2900 Fax (480) 755-4825 William P. Allen #011161 ALLEN LAW FIRM, LLC 1650 North First Avenue Phoenix, Arizona 85003 Telephone (602) 495-6502 Fax (602) 277-9839 Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Connie B. Pappas, Plaintiff, vs. J.S.B. Holdings, Inc., d.b.a. R&D Specialty/Manco, Defendant. No. CV-03-1449-PHX-PGR PLAINTIFF'S SUPPLEMENTAL AUTHORITY FOR RESPONSE TO DEFENDANT'S MOTION IN LIMINE RE: UNEMPLOYMENT APPEALS DECISION

Defendant moved in limine to preclude plaintiff Pappas from introducing at trial, inter alia, the decision of the Arizona Department of Economic Security Appeals Tribunal Decision. The Court denied the motion without prejudice. Plaintiff hereby provides this supplemental authority for the admissibility of the Appeals Tribunal decision. Baldwin v. Rice, 144 F.R.D. 102 (E.D.Cal.1992) - the District Court held that a State administrative decision granting employee's California unemployment compensation claim was admissible in employee's subsequent suit against employer for employment discrimination because the issues were similar and the employer participated fully in the administrative proceedings. Thus, the administrative findings were highly relevant on issue of whether employee had been discharged for misconduct, which was government's defense in discrimination action.

Case 2:03-cv-01449-PGR

Document 84

Filed 06/05/2006

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The District Court cited a Ninth Circuit case, Salinas Valley Broadcasting Corp. v. NLRB. 334 F.2d 604, 612 (9th Cir.1964) as authority as follows: Moreover, the Ninth Circuit in a case involving unfair labor practices has expressly referenced the administrative decision of the California Unemployment Appeals Board as a decision, while not final, as one that showed "proof that there could exist some substantial evidence ... from which it could be inferred that employee misconduct, and not union activities, was [the cause of the discharge.]" Salinas Valley Broadcasting Corp. v. NLRB, 334 F.2d 604, 612 (9th Cir.1964). The ALJ's decision in this case would be given to the jury in the same vein--not as a final determination binding their judgment, but as potential, substantial evidence disproving employee misconduct as a reason for plaintiff's discharge. Id., 144 F.R.D. at 106. The District Court also held that a California Statute, similar to A.R.S. § 23-672.01 cited by defendant, did not preclude the use of Unemployment Appeals decisions as evidence in Federal Court proceedings as follows: Although the parties have not briefed the applicability of Cal.Unemployment Ins.Code § 1960 to the issue of the admissibility of the Board decision, the statute requires discussion. Section 1960 provides: Any finding of fact or law, judgment, conclusion, or final order made by a hearing officer ... shall not be used as evidence in any separate or subsequent action or proceeding, between an individual and his present or prior employer brought before an arbitrator, court, judge of this state or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts. There can be no doubt, however, that a state legislature cannot purport to make binding pronouncements of law concerning what evidence may be privileged or otherwise inadmissible in a federal court action involving claims based on federal law. F.R.Evid. 501 (state privilege law binding only in actions where state law controls the merits of a claim or defense). See, Kerr v. U.S.D.C. (N.D.Cal.), 511 F.2d 192, 197 (9th Cir.1975) aff'd. on procedural grounds, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976), refusing to apply state statutory privilege law in a federal civil rights action. Respectfully submitted this 5th day of June, 2006. DAVID C. LARKIN, P.C. By: /s David C. Larkin David C. Larkin Attorney for Plaintiff

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Electronic notice and service of documents provided to: Sharon S. Moyer No. 013341 Mark D. Dillon No. 014393 SACKS TIERNEY P.A. 4250 N. Drinkwater Blvd., 4th Floor Scottsdale, AZ 85251-3693 Attorneys for Defendants /s David C. Larkin

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Case 2:03-cv-01449-PGR

Document 84

Filed 06/05/2006

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