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 Sharon S. Moyer No. 013341 Mark D. Dillon No. 014393 SACKS TIERNEY P.A. 4250 N. Drinkwater Blvd., 4th Floor Scottsdale, AZ 85251-3693 Telephone (480) 425-2600 Fax (480) 970-4610 Attorneys for Defendant

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. Pursuant to the Court's May 8, 2006 Trial Order, the parties file this Joint Addendum to the Joint Pretrial Statement. No. CV-03-1449-PHX-PGR JOINT ADDENDUM TO JOINT PRETRIAL STATEMENT

Case 2:03-cv-01449-PGR

Document 83

Filed 06/02/2006

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I.

WITNESS LISTS [REVISED]: All witnesses listed are fact witnesses. There are no expert witnesses. PLAINTIFF'S WITNESSES: 1. Connie B. Pappas - will testify - She will testify about the discriminatory

hostile work environment she suffered because she was a female, her complaints to management, the failure of defendant to stop the hostile atmosphere, her constructive discharge, her economic damages and her emotional distress. 2. Janice Wilt - will testify - She will testify about the hostile work

environment that Ms. Pappas was subjected to, incidents that she witnessed, sexual epithets and comments about women made by male employees made to or about Connie Pappas that she witnessed. 3. Mary Williams - will testify - She will testify about the hostile work

environment towards her as a female that she experience while working as a Quality Manager at JSB, that she complained to management, that nothing was done to stop it, and that she quit because of the hostile work environment. Defendant's Objection: Ms Williams was never properly listed as a witness who would testify regarding her own allegations of sexual harassment. The description of testimony, up until this supplement to the joint pretrial statement never included testimony regarding her own work related complaints. 4. Thomas Pappas - will testify - he will testify about his observations

about the emotional distress suffered by plaintiff from the discriminatory hostile work environment and constructive discharge. 5. Stephanie Pappas - will testify - she will testify about her observations

about the emotional distress suffered by plaintiff from the discriminatory hostile work environment and constructive discharge.

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Case 2:03-cv-01449-PGR

Document 83

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6.

Jim Dennis - not available for trial (cannot be located at last known

address or Dennis's listed in the Telephone book - plaintiff has been told that Dennis moved to a mid-western state) - Dennis will testify through deposition testimony - Depositions pp. 4:9 to 4:16, 5:7 to 7:13, 7:14 to 7:15, 8:3 to 9:16, 10:5 to 10:14, 10:22 to 11:20, 13:8 to 13:17, 15:19 to 16:12. 7. Dennis R. Parker, D.O. - Will Testify - Dr. Parker was plaintiff's

treating physician who will testify regarding his treatment of plaintiff's work-related stress. 8. Plaintiff may call any of Defendant's listed witnesses as necessary.

DEFENDANT'S WITNESSES:

1.

Nick Anaya - will testify. He is one of the alleged harassers. He will

testify about his communications with Plaintiff and her working conditions. 2. Kevin Beach - will testify. He was Plaintiff's supervisor and he will

testify about his communications with Plaintiff and her working conditions. 3. Greg Beam - will testify. He is one of the alleged harassers. He will

testify about his communications with Plaintiff and her working conditions. 4. John Bloom - will testify. He is an owner of the Defendant. He will

19 testify about his communications with Plaintiff and her working conditions. 20 5. Linda Druse - will testify. She handles office/accounting matters for the

21 Defendant and may testify about Plaintiff's employment dates, wage information and the like. 22 6. Marco Espinosa - will testify. He is one of Plaintiff's subordinates. He

23 will testify about his communications with Plaintiff and her working conditions. 24 7. John Gusel - will testify. He is one of the alleged harassers. He will

25 testify about his communications with Plaintiff and her working conditions. 26 8. Jim Dennis - Dennis will testify through deposition testimony -

27 Depositions pp. 7-8, ll.16-2; p.9, ll.17-25; p.10, ll.15-21; pp.11-13, ll.21-1; p.14, ll.15-19; p. 28 15, ll.1-14; pp.18-20, ll.3-4; p.21, ll.7-11; pp.24-25, ll.6-2.

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9.

Sharon Hackney - will testify. Representative of EEOC - She will

2 authenticate the EEOC documents and will testify regarding the intake and investigation 3 procedure at the EEOC. 4 Plaintiff's Objection: Defendant has never disclosed this witness, even in the

5 original Joint Pretrial Statement. In her original disclosure, plaintiff did disclose the EEOC 6 custodian of records as a potential witness to testify regarding authenticity of documents, if 7 it was an issue, but not regarding any substantive testimony. Plaintiff's do not object to the 8 authenticity of any EEOC documents defendant proposes as Exhibits. Accordingly, there is 9 no reason for this witness to testify regarding authenticity. This witness may not testify for 10 defendant as a fact witness because defendant did not disclose Ms. Hackney as an expert or 11 fact witness on EEOC procedures of intake and investigation, and did not identify these 12 subjects as information that she possessed that defendant "may use to support its . . defenses," 13 as required by FRCP 26(a)(1)(A). 14 Accordingly, the witness may not testify pursuant to FRCP 37(c)(1) which prohibits

15 testimony from undisclosed witnesses. This non-disclosure is not harmless to the extent that 16 the witness would testify to any undisclosed substantive matter because plaintiff had no 17 opportunity to depose the witness whose identity was not disclosed until the Addendum to the 18 Joint Pretrial Statement was prepared this week. 19 20 21 22 23 24 25 26 27 28

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II.

EXHIBIT LISTS [REVISED]:

PLAINTIFF'S EXHIBITS:

Exhibit No. 1

Description of Plaintiff's Exhibit Inspection Employee Performance Evaluation - 3/15/00 Employee Evaluation Form [Connie (Kevin)] - Quality Manager Stephen Barnes Email to Connie Pappas - February 11, 2003 Pappas Diary [Notebook] "New Sexual Harassment Laws" 2/9/2003 "Bullying and Harassment at Work: Guidance for Employees" - 2/9/2003

Defendant's Objections No objection. No objection. Hearsay - Rule 802, Relevance Rule 402 No objection. No objection. No objection.

R&D Specialty/Manco, Inc. Information No objection. Handbook for Employees Payroll Status Change - 4/15/02 Pappas Medical Records - Dr. Parker Decision of Appeal Tribunal - Arizona Department of Economic Security April 16, 2003 W-2s from 2003, 2004, 2005 and recent pay check stub All of Defendants' Exhibits to the extent plaintiff has no objection, or plaintiff's objection is overruled No objection. Foundation Objection. A.R.S. 23-672.01, Fed. R. Evid 402 and 403 No objection. No objection.

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DEFENDANT'S EXHIBITS: Exhibit No. 1 2 Description of Defendant's Exhibit Application for Employment of Connie Pappas - JSB00001-3 November 29, 2000 document signed by Connie Pappas and Kim Ferguson - JSB00004 Information Handbook for employees of R&D Specialty/Manco, Inc. manual signed by Connie PappasJSB00005-47 Acknowledgment of receipt and under- standing of R&D Specialty/ Manco, Inc. manual signed by Connie Pappas - JSB 000048 Documents taken from JSB personnel files by Connie Pappas - JSB0004959 Plaintiff's Objections No Objection. Rule 402, relevance, Rule 403, confusing, prejudice outweighs any probative value, Rule 802, Hearsay. Foundation. No Objection

No Objection

Rule 402, Relevance, Rule 403, cumulative, confusing, Rule 802, Hearsay, Rule 802, Further, plaintiff objects to the extent this exhibit offered on affirmative defense of "after-acquired evidence," the affirmative defense was not disclosed until June 1, 2006, after plaintiff's counsel alerted defendant's counsel that defendant was in default for failure to file answer to plaintiff's first amended complaint filed two and one-half years ago. FRCP 12, 15, 26, and 37. Plaintiff stipulated to filing of the tardy Answer because the standards for setting aside a default were likely met, but did not stipulate to the content of the answer. Relevance, Rule 402, cumulative, confusing, Rule 403, Hearsay, Rule 802 No Objection Rule 402, Relevance, Rule 403, confusing to jury, Rule 802, Hearsay.

Connie Pappas loan application dated May 5, 2002 - JSB00060-63 Employee notes dated April 7, 2003 JSB00064 JSB Holdings, Inc. Transactions by payroll item - JSB00065-69

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Charge of discrimination filed by Connie Pappas dated February 19, 2003 - JSB 00071

Rule 402, Relevance, EEOC proceedings are jurisdictional only. Defendant's have not alleged that plaintiff failed to exhaust administrative remedies, Rule 403, cumulative, prejudicial, other claims alleged not to be tried may be confusing to jury, Rule 802 Hearsay Rule 402, relevance, EEOC proceedings are jurisdictional only. Defendant's have not alleged that plaintiff failed to exhaust administrative remedies, Rule 403, cumulative, prejudicial, other claims alleged not to be tried may be confusing to jury, Rule 802 Hearsay Rule 402, relevance, EEOC proceedings are jurisdictional only. Defendant's have not alleged that plaintiff failed to exhaust administrative remedies, Rule 403, prejudicial, confusing to jury, Rule 802 Hearsay Rule 402, relevance, EEOC proceedings are jurisdictional only. Defendant's have not alleged that plaintiff failed to exhaust administrative remedies, Rule 403, prejudicial, confusing to jury, Rule 802 Hearsay Rule 402, relevance, EEOC proceedings are jurisdictional only. Defendant's have not alleged that plaintiff failed to exhaust administrative remedies, Rule 403, prejudicial, confusing to jury, Rule 802 Hearsay Rule 402, relevance, EEOC proceedings are jurisdictional only. Defendant's have not alleged that plaintiff failed to exhaust administrative remedies, Rule 403, prejudicial, confusing to jury, Rule 802 Hearsay

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Charge of discrimination filed by Connie Pappas dated February 19, 2003 - JSB 00072-75

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Intake questionnaire - JSB00072-75

12

Intake notes - JSB00076-79

13

Correspondence from EEOC to Ms. Pappas dated April 11, 2003 JSB00080

14

Correspondence from EEOC to Ms. Pappas dated May 16, 2003 JSB00081

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EEOC Dismissal and Notice of Suit Rights dated April 11, 2003 JSB000822-83

Rule 402, relevance, EEOC proceedings are jurisdictional only. Defendant's have not alleged that plaintiff failed to exhaust administrative remedies, Rule 403, prejudicial, confusing to jury, inadmissible pursuant to Beachy v. Boise Cascade Corporation, 191 F.3d 1010, 1015 (9th Cir. 1999), Rule 802 Hearsay Rule 402, relevance, EEOC proceedings are jurisdictional only. Defendant's have not alleged that plaintiff failed to exhaust administrative remedies, Rule 403, prejudicial, confusing to jury, inadmissible pursuant to Beachy v. Boise Cascade Corporation, 191 F.3d 1010, 1015 (9th Cir. 1999), Rule 802 Hearsay Rule 402, relevance, EEOC proceedings are jurisdictional only. Defendant's have not alleged that plaintiff failed to exhaust administrative remedies, Rule 403, prejudicial, confusing to jury, inadmissible pursuant to Beachy v. Boise Cascade Corporation, 191 F.3d 1010, 1015 (9th Cir. 1999), Rule 802 Hearsay Rule 402, Relevance, Rule 403, cumulative, confusing to jury, prejudicial, Rule 802, hearsay. Rule 402, Relevance, unemployment insurance payments received is collateral source and not mitigating income, Rule 403, confusing to jury, prejudicial, Rule 802, hearsay Rule 402, relevance, Rule 403, cumulative, Rule 802, Hearsay.

16

Equal Opportunity Commission agreement of disclosure executed by Connie Pappas dated May 16, 2003 JSB00084

17

Notice of charge of discrimination dated June 9, 2003 - JSB00065

18 19

DES general adjudication - JSB00086 Notice of reduction for wages JSB00087

20

Transcriptive hearing before the Honorable Steven Schwartz administrative law judge dated April 14, 2003 pp.12-13, ll.24-25; p.14, ll.11-14; p.15, ll.1-7; pp.15-16, ll.1514; p.17, ll.5-24; p.18, ll.8-17 JSB00088-160 Medical records relating to Connie Pappas from Dr. Parker - JSB00161181

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No Objection

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Prescription records relating to Connie Pappas - JSB00182-186

Rule 401, Relevance as to medications not prescribed for stress-related symptoms, Rule 402, non-related medications could confuse jury. No Objection. Rule 402, Rule 403, cumulative, FRCP 32, Deposition testimony may be used only in accordance with FRCP 32 and not as an exhibit.

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Connie Pappas' handwritten diary JSB00187-200 Pappas Deposition - p. 45 line 19 to p. 46 line 7, p. 72 lines 4 to 7, p. 109 lines 4 to 15, p. 121 lines 4 to 8, p. 124 line 4 to p. 129 line 14

TRIAL ISSUES: Plaintiff is not requesting a jury instruction on her retaliation claim, therefore only her

10 hostile work environment and constructive discharge Title VII sex discrimination claim will 11 be tried to the jury. Plaintiff does not believe that it is required to formally dismiss the claim, 12 but if the Court deems it necessary, plaintiff stipulates to dismissal of the retaliation claim. 13 Respectfully submitted this 2nd day of June, 2006. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By: /s William P. Allen William P. Allen Attorneys for Plaintiff and ALLEN LAW FIRM, LLC By: /s David C. Larkin David C. Larkin Attorney for Plaintiffs By: /s Sharon Moyer Sharon Moyer Attorneys for Defendant DAVID C. LARKIN, P.C. SACKS TIERNEY P.A.

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