Free Statement - District Court of Arizona - Arizona

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Lynn M. Laney, Jr., State Bar # 1084 934 W. McDowell Road Phoenix, Arizona 85007-1730 Tel: (602) 254-7600 Fax: (602) 252-7225 e-mail: [email protected] Attorney for Plaintiff Sharon S. Moyer, No. 013341 Mark D. Dillon, No. 014393 [email protected] SACKS TIERNEY P.A. 4250 N. Drinkwater Blvd., 4th Floor Scottsdale, Arizona 85251-3693 Telephone: (480) 425-2600 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Connie B. Pappas, Plaintiff, vs. J.S.B. Holdings, Inc., an Arizona corporation, d.b.a. R&D Specialty/Manco, Defendant. A.

NO. CV 03-1449 PHX PGR JOINT PRETRIAL STATEMENT

COUNSEL FOR THE PARTIES. For Plaintiff Connie B. Pappas: Lynn M. Laney, Jr., State Bar #1084 934 West McDowell Road Phoenix, Arizona 85007 Telephone: (602) 254-7600 Facsimile: (602) 252-7225 e-mail: [email protected]

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For Defendant J.S.B. Holdings, Inc.: Sharon S. Moyer, State Bar #13341 Mark D. Dillon, State Bar #14393 Sacks Tierney P.A. 4250 N. Drinkwater Blvd., 4th Floor Scottsdale, Arizona 85251-3693 Telephone: (480) 425-2600 Facsimile: (480) 970-4610 B. STATEMENT OF JURISDICTION.

The United States District Court for the District of Arizona has jurisdiction over Pappas' two claims herein, pursuant to 28 U.S.C. 1331 and 42 U.S.C. 2000e5(f) 1 & 3. C. PARTIES REMAINING IN ACTION.

Plaintiff Connie B. Pappas Defendant J.S.B. Holdings, Inc. D. CLAIMS REMAINING IN ACTION.

Count One: Sex discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a). Count Two: Retaliation in violation of Title VII, 42 U.S.C. 2000e-3(a). E. NATURE OF ACTION.

This is a Title VII case in which the Plaintiff has alleged causes of action for sex discrimination (sexual harassment) and retaliation in violation of 42 U.S.C. § 2000e-2 and -3. Plaintiff seeks equitable relief in the form of an injunction, back pay, and front pay. She also seeks compensatory damages and punitive damages under 42 U.S.C. 1981a and her attorney's fees under 42 U.S.C. § 2000e-5(k). F. CONTENTIONS OF THE PARTIES. 1. A. Plaintiff's Burdens COUNT ONE: SEX DISCRIMINATION

(HOSTILE ENVIRONMENT), 42 U.S.C. 2000e-2(a)

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To establish a hostile environment sexual harassment claim based upon the conduct of co-workers, Pappas must prove (1) that she was subjected to verbal or physical conduct of a sexual nature or because of her sex, (2) that this conduct was unwelcome, and (3) that this conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment. Little v. Windemere Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2002). To establish that JSB is liable for the hostile environment, Pappas also must prove that JSB knew or should have known of the hostile environment and failed to take effective remedial measures to correct the situation. Inc., 170 F.3d 951, 955 (9th Cir. 1999). B. COUNT TWO: RETALIATION (FOR HAVING Mockler v. Multnomah County, 140 F.3d 808, 812 (9th Cir. 1988); Burnell v. Star Nursery,

COMPLAINED ABOUT SEX DISCRIMINATION), 42 U.S.C. 2000e-3(a) Pappas must prove (1) that she had engaged in activity protected by Title VII, (2) that an adverse employment action was thereafter taken against her, and (3) that a causal link exists between the protected activity and the adverse employment action. Kortan v. California Youth Authority, 217 F.3d 1104, 1112 (9th Cir. 2000). Pappas has stated that her constructive discharge was the adverse employment action supporting her retaliation claim. Constructive discharge can be an adverse employment action for purposes of establishing a Title VII retaliation claim. See Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 2351 (2004). ("Under the constructive discharge doctrine, an

employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes."); see also, Jordan v. Clark, 847 F.2d 1368, 1377 n. 10 (9th Cir. 1988), cert. denied, 488 U.S.

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1006 (1989) ("if shown, constructive discharge is an adverse employment action.") 2. Defendant's Burdens

To succeed on her claims that JSB is liable for sexual harassment, Ms. Pappas must present evidence that her "workplace [was] permeated with discriminatory intimidation...that [was] sufficiently severe or pervasive enough to alter the conditions of [her] employment and create an abusive work environment. Brooks v. City of San Mateo, 229 f.3d 917 (9th Cir. 2000). The work environment must both be subjectively and objectively perceived as abusive. In addition, the totality of the circumstances will be examined to determine whether a plaintiff's allegations make out a colorable claim, relying on such factors as frequency, severity, and level of interference with work performance. Brooks, 229 F.3d at 924-25. With respect to the sexual harassment claim, when an employee claims to have experienced sexual harassment, yet suffers no adverse tangible employment action, the employer may interpose an affirmative defense. The affirmative defense consists of two elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.W. 775, 807 (1998); Montero v. AGCO Corporation, 192 F.3d 856, 861 (9th Cir. 1999). With respect to the retaliation claim, once the Plaintiff presents a prima facie case of retaliation, the burden the shifts to the Defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). If the Defendant satisfies this
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burden, the Plaintiff bears the ultimate burden of demonstrating that the reason asserted is a pretext for discrimination. Id. With respect to Plaintiff's claim for monetary relief, Defendant bears the burden to prove that she failed to mitigate her losses. Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995). It is plaintiff's burden to establish that her employment was constructively discharged, as that term is defined in section F (1) (B) above. G. STIPULATIONS AND UNCONTESTED MATERIAL FACTS 1. The United States District Court or the District of Arizona has both

subject matter and personal jurisdiction over Pappas' two claims herein, pursuant to 28 U.S.C. 1331 and 42 U.S.C. 2000e-5(f) 1& 3. 2. 3. Plaintiff Connie B. Pappas is an adult female. The Defendant, J.S.B. Holdings, Inc., also doing business as "R&D

Specialty/Manco" ("JSB") is (1) an Arizona corporation, (2) employing more than fifteen but less than 100 persons, and (3) owns and operates an aerospace parts machine shop business in Phoenix, Arizona. 4. Pappas was employed by JSB from August 31, 1998 until February

18, 2003 (except for a period of two-and-a-half months in early 2001). She initially worked as an inspector, but subsequently was promoted to the position of Quality Control Manager, which position she held on February 18, 2003 when her employment ended. Her annual salary was then $49,875.00. 5. During the time period in question (August 2002 to February 18,

2003) Pappas' supervisor at JSB was JSB's General Manager, Kevin Beach, and Mr. Beach's supervisor was JSB's owner and CEO, John Bloom. 6. Pappas's co-workers at JSB, Nick Anaya, John Gussel and Greg

Beam, were neither her superiors nor subordinates.

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H. 1.

CONTESTED ISSUES OF MATERIAL FACT

Whether Pappas was subjected to unwelcome verbal or physical

conduct of a harassing nature? 2. 3. Whether any such harassing conduct was motivated by her gender? Whether any such harassing conduct was severe or pervasive

enough, both objectively and subjectively, to alter the conditions of Pappas' employment? 4. conduct? 5. If JSB knew or should have known of any harassing conduct, Whether JSB knew or should have known of any such harassing

whether JSB took appropriate investigative and remedial action? 6. Whether Pappas was constructively discharged, i.e., whether her

working conditions became so intolerable from the hostile environment that a reasonable woman in her position would have felt compelled to quit? 7. Whether any such constructive discharge was done in retaliation

against Pappas for engaging in activity protected by Title VII? 8. Whether Pappas made reasonable and diligent efforts to find new

employment after February 18, 2003, in order to mitigate her damages (income loss) after she left JSB? 9. Whether Pappas is entitled to recover punitive damages against JSB

because its conduct, in totality, constituted discriminatory practices with malice or reckless indifference to the federally protected rights of Pappas pertaining to employment discrimination and retaliation? I. 1. CONTESTED ISSUES OF LAW

Whether the conduct complained of rises to a level sufficient to

constitute sexual harassment?

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2. retaliation? 3. retaliation? 4.

Whether the conduct complained of is sufficient to constitute

Whether Plaintiff has succeeded in presenting a prima facie case of

Whether JSB is successful in establishing a legitimate, non-

discriminatory reason for any adverse employment action? 5. 6. Whether Plaintiff suffered any adverse employment action? Whether JSB failed to take reasonable measures to prevent sexual

harassment and/or discrimination? 7. 1. Whether JSB is entitled to any affirmative defenses? Is there sufficient evidence of "discriminatory practices with malice

or reckless indifference to the federally protected Title VII rights" of Pappas to allow for an instruction that the jury may award punitive damages? 2. What, if any, injunctive relief should be granted to Pappas for (1)

back pay and (2) reinstatement or front pay? J. 1. Notes: 1. Plaintiff's List WITNESSES

All witnesses listed are "fact witnesses." 2. For brevity, the following codes are used: WT: Will Testify MT: May Testify UT: Unlikely to Testify, but could be called

A. B.

Connie B. Pappas (WT), c/o Lynn M. Laney, Jr., her attorney Thomas Pappas (WT), c/o Lynn M. Laney, Jr., his wife's attorney

DEFENDANT'S OBJECTION: Not disclosed. C. Janice Wilt (WT), former employee of JSB, 25438 West Pueblo

Avenue, Buckeye, Arizona 85326.

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D.

Stephanie Pappas (MT) (Pappas' teenage daughter)

DEFENDANT'S OBJECTION: Not disclosed. E. F. G. Mary Williams, former JSB employee (WT) Nick Anaya (MT), JSB employee Custodian of Records of Arizona Dept. of Economic Security

Unemployment Div. (UT) to provide and authenticate records re Plaintiff's application for and receipt of unemployment benefits after being constructively discharged by Defendant, and to provide and authenticate the tape recording or transcript of the ADES Appeal Tribunal hearing on April 14, 2003, and its written decision thereafter (dated April 16, 2003).

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H.

Dennis R. Parker, D.O. (MT), Suite #1, 4350 North 19th Avenue, 85015, Phone (602) 264-4848, to testify as the Plaintiff's

Phoenix, Arizona

treating primary care physician. I. J. K. L. M. N. O. P. Q. R. John Gussel (UT), JSB employee Greg Beam (UT), JSB employee Kevin Beach (MT), JSB employee John Bloom (WT), JSB owner Mary Ann Land (MT), JSB former employee Kim Ferguson (UT), JSB former employee Jim Dennis (MT), JSB former employee Marco Espinoza (UT), JSB former employee Monico Munoz (MT) Steve Barnes (WT), Honeywell Engines, 402 South 36th Street,

Phoenix, Arizona 85034 2. A. B. Defendant's List (all are fact witnesses)

Nick Anaya--will testify. Kevin Beach--will testify. He was Plaintiff's supervisor, and he will

testify about his communications with Plaintiff and her working conditions.
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C.

Greg Beam--will testify. He is one of the alleged harassers. He

will testify about his communications with Plaintiff and her working conditions. D. Randy Beam--may testify. He is one of Plaintiff's co-workers. He

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

testify about his communications with Plaintiff and her working conditions. F. Jim Dennis--may testify. He was one of Plaintiff's co-workers. He

will testify about his communications with Plaintiff and her working conditions. G. Linda Druse--unlikely to testify. She handles office/accounting

matters for the Defendant and may be called to testify to Plaintiff's employment dates, wage information and the like. H. Marco Espinoza--may testify. He was one of Plaintiff's

subordinates. He will testify about his communications with Plaintiff and her working conditions. I. John Gussel--will testify. He is one of the alleged harassers. He

will testify about his communications with Plaintiff and her working conditions. J. Monico Munoz--may testify. He was one of Plaintiff's

subordinates. He will testify about his communications with Plaintiff and her working conditions.

K. 1. A.

LIST OF EXHIBITS

Plaintiff's List

The Plaintiff's personnel file and records, including performance

evaluations and payroll records, while employed by the Defendant. DEFENDANT'S OBJECTION: This designation is too general and may include objectionable material, such as information relating to Plaintiff's claims for unemployment compensation, which would be inadmissible under A.R.S. § 23-672.01 and Fed. R. Evid. 402 and 403. If Plaintiff is limiting this exhibit to performance evaluations and payroll records, Defendant has no objection.

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B.

The ADES file on the Plaintiff's application for and receipt of

unemployment benefits after her termination by the Defendant, including the ADES Appeal Tribunal hearing tape recording or transcript and evidence, and decision (FAC exhibit #1).

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DEFENDANT'S OBJECTION: Plaintiff's request for and ultimate receipt of unemployment compensation benefits are irrelevant and inadmissible under A.R.S. § 23-672.01 and Fed. R. Evid. 402 and 403. Defendant recognizes that sworn testimony rendered during the unemployment compensation appeals process may be admissible depending on the context in which it is proffered, no other information from the ADES file is admissible. C. The EEOC file on the Plaintiff's discrimination and retaliation

charged filed against the Defendant. DEFENDANT'S OBJECTION: Plaintiff's designation of this exhibit is too broad and may include objectionable materials, such as the documentation relating to voluntary mediation, which is inadmissible under Fed. R. Evid. 402 and 408. Defendant, therefore, reserves objection to this exhibit until trial. D. Medical records of the Plaintiff from her treating physician, Dennis

R. Parker, D.O. DEFENDANT'S OBJECTION: Lack of foundation. Defendant will not object to this exhibit if the physician is called as a witness. E. Court reporter's transcript of deposition of Dennis R. Parker, D.O.

DEFENDANT'S OBJECTION: Use of the deposition transcript is not permitted under Fed. R. Civ. P. 32(a). In addition, Plaintiff has failed to specify page and line designations as required by the Court. F. Court reporter's transcript of deposition of Kevin Beach.

DEFENDANT'S OBJECTION: This deposition was taken in connection with another case. Use of the deposition transcript is not permitted under Fed. R. Civ. P. 32(a). In addition, Plaintiff has failed to specify page and line designations as required by the Court.

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G.

Court reporter's transcript of deposition of John S. Bloom.

DEFENDANT'S OBJECTION: This deposition was taken in connection with another case. Use of the deposition transcript is not permitted under Fed. R. Civ. P. 32(a). In addition, Plaintiff has failed to specify page and line designations as required by the Court. H. Court reporter's transcript of deposition of Jim Dennis.

DEFENDANT'S OBJECTION: This deposition was taken in connection with another case. Use of the deposition transcript is not permitted under Fed. R. Civ. P. 32(a). In addition, Plaintiff has failed to specify page and line designations as required by the Court. Finally, Defendant does not have and has not been provided a copy of this exhibit. I. Connie Pappas handwritten chronological notes of workplace

incidents (as provided with Plaintiff's Initial Disclosures, and used at her deposition). 2. A. B. 3/15/00 C. D. E. Charge of Discrimination form, filed by C. Pappas on 2/19/03 Charge of Discrimination form, filed by C. Pappas on 6/03/03 Copies of diary entries of C. Pappas from August 22, 2002Defendant's List

Application for Employment, dated 8/26/1998 for Connie Pappas Inspection Employee Performance Evaluation for C. Pappas, dated

February 11, 2003 F. Handwritten note by Linda Druse, dated 3/13/03 RE: date of C.

Pappas's termination and reason G. Payroll Status Change for C. Pappas, effective 4/15/02 for 5%

increase to $49,875 H. I. List of prior [before JSB] employment for C. Pappas Transmittal sheet from J. Bloom transmitting disciplinary action for

Pappas re: use of offensive language in the presence of Mr. Trai N Le
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PLAINTIFF'S OBJECTION: Undisclosed and hearsay. J. Letter of apology dated 11/29/2000 from C. Pappas and K. Ferguson

re: apology for using offensive language in the presence of Mr. Trai N Le K. Case records from EEOC-Charge No. 350-2003-80897, including

case log; Notices; Charge of Discrimination forms; Dismissal of Charge; intake notes and intake questionnaire PLAINTIFF'S OBJECTION: Plaintiff objects to the documents in the EEOC file that pertain to the EEOC's mediation process or efforts because (1) they are irrelevant, and (2) would be contrary to Federal Rule of Evidence 408. L. Letter from K. Beach to Whom It May Concern RE: employment,

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performance and incidents with Janice Wilt, dated 4/15/03 [also attached to Plaintiff's Initial R26 Disclosure Statement, bates label PW 001015-016] PLAINTIFF'S OBJECTION: Undisclosed, and hearsay. M. Letter from J. Bloom to EEOC RE: statement regarding sexual

harassment accusation by J. Wilt, dated 4/15/03 [also attached to Plaintiff's Initial R26 Disclosure Statement, bates label PW 001012] PLAINTIFF'S OBJECTION: Undisclosed, and hearsay. N. Letter from James Dunaway to Whom It May Concern RE:

witnessed accounts of J. Wilt's behavior and language during break & lunch periods, dated 4/16/03 PLAINTIFF'S OBJECTION: Undisclosed, and hearsay. O. Letter of John Gusel re: behavior and language of Janice Wilt, dated

4/17/03 [Also attached to Plaintiff's Initial R26 Disclosure Statement, bates label PW 001014] PLAINTIFF'S OBJECTION: Undisclosed, and hearsay.

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P. Q.

R&D Specialty/MANCO Inc. Employee handbook Pappas Deposition p. 45 l. 19 to p. 46 l. 7

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p. 72 l. 4 to 7 p. 109 l. 4 to 15 p. 121 l. 4 to 8 p. 124 l. 4 to p. 129 l. 14 L. A. File B. C. Defendant's Motion in Limine regarding Janice Wilt Defendant's Motion in Limine regarding Mary Williams M. PROBABLE LENGTH OF TRIAL LIST OF PENDING MOTIONS

Defendant's Motion in Limine re: Unemployment Compensation

The parties estimate that the jury trial will take four days.

APPROVED AS TO FORM AND CONTENT:

s/Lynn M. Laney, Jr. Attorney for Plaintiff

,

January 23, 2006

s/Sharon S. Moyer Attorney for Defendant

,

January 23, 2006

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