Free Order on Motion in Limine - District Court of Arizona - Arizona

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IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

) ) Plaintiffs, ) ) v. ) ) American Builders & Contractors Supply ) Col, Inc. dba ABC Supply Company, Inc.,) ) Defendant. ) ) ) ) Beth D'Aguanno and Frankie Tyree,

CV-03-1408-PHX-DGC

ORDER

A Final P ret rial Conference was held on September 9, 2005. Counsel appeared on 17 behalf of Plaintiffs and Defendant. 18 the hearing, 19 IT IS HEREBY ORDERED: 20 1. 21 2. 22 hours of trial time and Defendants shall be allotted 12 hours of t rial time. The Court will 23 keep track of each side's t ime. 24 cross-examination shall be counted against the parties' allotted time. 25 3. 26 Courtroom 603, Sandra Day O'Connor Federal Courthouse, 401 Wes t Washington Street, 27 Phoenix, Arizona 85003. 28 A final conference s hall be held on December 1, 2005, at 4:30 p.m. in Opening and closing statements, direct examination, and The trial shall last 5 days (December 5-9, 2005). Plaintiffs shall be allotted 12 Trial in this matter shall begin on December 5, 2005, at 9:00 a.m. On the basis of the parties' written submissions and

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4.

The parties' proposed final pretrial order shall govern the presentation of Evidence and objections not identified in the order shall

evidence and other trial issues . not be available at trial. 5.

The Court Orders that the p art ies engage in good faith settlement talks, faceIf the parties desire to hold a settlement

to-face, on or before October 31, 2005.

conference before a M agistrate Judge, they shall notify the Court promptly. 6. At the Final Pretrial Conference, the Court addressed Defendant's M otion

in Limine to Exclude Evidence or Comments by Counsel Pertaining to Claims other than Hostile Environment Sexual Harassment (Doc. #72). T he motion was largely unopposed

by Plaintiffs. The Court granted the mot ion w ith respect to any claims previously asserted, but now dismissed, from this case. The Court did not grant the motion with respect t o

gender-discrimination evidence that Plaintiffs propose to introduce at trial. T he Court will rule on the admissibility of such evidence when it is presented. 7. The Court address ed Defendant's M otion in Limine to Exclude Testimony

of or References to Janna Clark (Doc. #70). The Court granted the motion with respect to M s. Clark's testimony about comment s made by ABC personnel during a bus trip in Texas. The Court considers this evidence too remote to be relevant, and inadmissible under Federal Rule of Evidence 403. The Court denied the motion without prejudice with respect t o M s . Clark's testimony regarding M r. Simonelli's alleged statement that he did not w ant a woman manager and his alleged dis criminatory remarks regarding women. The Court will rule at trial whether s uch evidence is admissible. Because the Court has not yet determined that it is admissible, the Court directed Plaintiffs' counsel not to mention it during opening statement. If Defendant or M r. Simonelli present M r. Simonelli to the jury as disapproving of gender discriminat ion and acting promptly to eliminate it within the company, the Court will cons ider M s. Clark's testimony about M r. Simonelli to be more probative and may admit it during trial. 8. The Court considered Defendant's M otion in Limine to Exclude Testimony

of or References to Cindy Conn (Doc. #74). T he Court took this motion under advisement.
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M s. Conn apparently will t estify that she was subject to sexual harassment at ABC's Tucson office, that two of the harassers were A ndy P ierman and Jerry Pierman (alleged harassers in this case), and that she complained to Lis a Indger, who did not respond to her complaints. Defendants asserts that events occurring in the Tucson office are not relevant to issues in this case and t hat presentation of M s. Conn's testimony will result in an inefficient mini-trial concerning her allegations. Plaintiffs assert that M s. Conn's testimony is highly relevant to the claims of Plaintiff Tyree, who alleges harassment by the Piermans and a complaint to M s. Indger that was not investigated. Plaintiffs also assert that the The Court concludes

evidence will be relevant to M s. D'A guanno's general allegations.

that M s. Conn's testimony is relevant to the claims of M s . Tyree and to the defense to her claim, which apparent ly will include an assertion by Defendant that M s. Indger was responsive to sexual harassment complaints and that ABC acted promptly and in good faith to remedy such complaint s . The Court finds the evidence less relevant to the claims The part ies

of M s . D 'A guanno, and will grant the motion with respect to her claims.

should jointly submit an appropriate limiting instruction before the final conference to be held on December 1, 2005. 9. The Court addressed Defendant's M otion in Limine to Exclude Testimony

of or References to John M cCall (Doc. #76). M r. M cCall was a branch manager at ABC's M esa office two years after the events at issue in this case. Plaintiffs assert that his

testimony regarding ongoing sexual harassment problems will be highly relevant to the question of whether Defendant took appropriate steps to end harassment, particularly since several of t he employees who continued to engage in allegedly harassing conduct under M r. M cCall were also alleged t o have been involved in harassment of Plaintiffs. Defendant asserts that event s occurring two years after the events in this case is simply not relevant to the jury's decision and would be unduly prejudicial. As wit h M s . Clark's testimony, the Court cannot determine the relevancy of M r. M cCall's testimony at this stage of the case. Plaintiffs' couns el may raise the issue with

t he Court during trial, and the Court may permit Plaintiffs to introduce the testimony during
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their rebuttal case.

Because the Court cannot determine today that the testimony is it during opening statement.

admissible, Plaintiffs' counsel should not to ment ion

Defendant's motion is denied without prejudice to Defendants continuing t o assert the objections set forth in the motion, and with the understanding that Plaintiffs w ill proceed as outlined above. 10. The Court has also considered Defendant's M otion to Sever Plaintiffs on the

G round of M isjoinder (Doc. #79). The motion, brought under Rules 20(a) and (b) of t he Federal Rules of Civil Procedure, argues that Plaintiffs have been misjoined under Rule 20 and that trial of their cases should be severed in light of the prejudice that would be caused by a joint trial. A district court has broad dis cret ion in ruling on such a motion. See

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1297 (9th Cir. 2000). Under Rule 20(a), joinder is proper if (1) Plaintiffs assert rights to relief arising out of the same transaction, occurrence, or series of transactions or occurrences, and (2) some question of law or fact common to both Plaintiffs will arise in the action. Id. at 1296. In this case, Plaintiffs were employed by the same employer, in the same office, at t he same time. Both allegedly were subjected to a hostile work environment, both allegedly complained about the work environment, and both claim that Defendant failed to res p ond to their complaints. Both assert claims under Title VII, and both will be faced with the argument that ABC took prompt and effect ive remedial measures in response to their complaints. T he Court concludes that Plaintiffs' claims arise out of a series of occurrences and present common questions of fact and law. Defendant asserts that it would be prejudiced by the jury 's exposure to evidence presented by both Plaintiffs. capable of following The Court does not agree. ins t ructions and The Court has found juries claimants. Defendant's

limit ing

distinguishing between

Considerations of judicial efficiency weigh heavily against separate trials. motion will be denied. 11.

Attached to this Order are the Court's proposed voir dire ques t ions . These

questions will be discussed during the conference to be held on December 1, 2005.
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12.

Attached to this Order are the Court's proposed preliminary jury instructions These instructions will also be addressed at the

to be given at the beginning of trial. December 1, 2005 conference.

13.

Prior to the December 1, 2005 conference, the parties s hall provide the Court

with a joint list of witnesses t o be read to the jury panel during voir dire and with a joint report on their settlement efforts. IT IS ORDERED: 1. Defendants' M otion in Limine to Exclude Evidence or Comments by Counsel

Pertaining to Claims Other Than Hostile Environment Sexual Harassment (D oc. #72) is granted as set forth above. 2. Defendants' M otion in Limine to Exclude Testimony or References to Janna

Clark (Doc. #70) is granted in part and denied in part as set forth above. 3. Defendants' M otion in Limine to Exclude Testimony of or References to

Cindy Conn (Doc. #74) is granted in part and denied in part as set forth above. 4. Defendants' M otion in Limine t o Exclude Testimony of or References to John

M cCall (Doc. #76) is denied without prejudice as set forth above. 5. D efendants' M otion to Sever Plaintiffs on the Ground of M isjoinder

(Doc. #79) is denied. 6. Defendant's First M otion for Extension of Time to Respond to M otions in

Limine and M otion to Sever (Doc. #82) is granted. DATED this 13th day of September, 2005.

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IN THE UNITED S TATES DIS TRICT COURT DIS TRICT OF ARIZONA

Beth D'Aguanno and Frankie Tyree, Plaintiffs, v. American Builders & Contractors Supply Co., Inc., doing business as ABC Supply Company, Inc., Defendant. _________________________________)

) ) ) ) ) ) ) ) ) ) )

No. CV03-1408 PHX DGC

COURT'S PROPOS ED PRELIMINARY JURY INS TRUCTIONS AND VOIR DIRE QUES TIONS

DATED: September 13, 2005

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1.1 DUTY OF JURY Ladies and gentlemen: You are now t he jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial, I will give y ou more detailed instructions. Those instructions will control your deliberations. You should not take anyt hing I may say or do during the trial as indicating what I think of the evidence or what your verdict should be.

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1.2 CLAIMS AND DEFENS ES To help you follow the evidence, I will give you a brief summary of the positions of the parties: M s. Bet h A nn D 'Aguanno and M s. Frankie Tyree are former employees at the M esa branch of ABC Supply Company in M es a, Arizona. ABC Supply provides building materials to the roofing industry throughout the Valley and the United States. During t heir respective tenures of employment at ABC Sup ply, M s. D'Auganno and M s. Tyree claim that they were subjected to sexual harass ment by their supervisors and coworkers at ABC Supply. M s. D'Aguanno and M s. Tyree also claim that although they comp lained of the sexual harassment to their supervisors at ABC Supply, the harass ment continued until their employment with the Company ultimately ended. ABC Supply denies t hat either M s. D'Aguanno or M s. Tyree were subjected to sexual harassment in the workplace and also denies that it failed to promptly respond to any complaints of harassment made by either M s. D'Aguanno or M s. Tyree.

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1.3 WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: (1) (2) (3) the sworn testimony of any witness; the exhibits which are received into evidence; and any facts to which the lawyers stipulate.

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1.4 WHAT IS NOT EVIDENCE The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case: (1) (2) (3) (4) statements and arguments of the attorneys; questions and objections of the attorneys; testimony that I instruct you to disregard; and anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.

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1.5 EVIDENCE FOR LIMITED PURPOS E Some evidence may be admit t ed for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other.

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1.6 DIRECT AND CIRCUMS TANTIAL EVIDENCE Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no dis t inction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

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1.7 RULING ON OBJECTIONS There are rules of evidence t hat control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by t he rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been. Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the cas e, you must not consider the evidence that I told you to disregard.

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1.8 CREDIBILITY OF WITNES S ES In deciding the facts in this case, y ou may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; the witness' memory; the witness' manner while testifying; the witness' interest in the outcome of the case and any bias or prejudice; whether other evidence contradicted the witness' testimony; t he reasonableness of the witness' testimony in light of all the evidence; and any other factors that bear on believability.

(2) (3) (4) (5) (6) (7)

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

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1.9 CONDUCT OF THE JURY I will now say a few words about your conduct as jurors. First, you are not to discuss this case with anyone, including y our fellow jurors, members of your family, people involved in the trial, or any one els e, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and t ries t o talk to you about the case please let me know about it immediately; Second, do not read any news stories or articles or lis ten to any radio or television reports about the case or about anyone who has anything to do with it; Third, do not do any research, such as cons ult ing dictionaries, searching the Internet or us ing ot her reference materials, and do not make any investigation about the case on your own; Fourth, if y ou need to communicate with me simply give a signed note to the clerk to give to me; and Fifth, do not make up your mind about what the verdict should be unt il after you have gone to the jury room to decide that case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.

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1.10 NO TRANS CRIPT AVAILABLE TO JURY At the end of the trial, y ou will have to make your decision based on what you recall of the evidence. You w ill not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given.

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1.11 TAKING NOTES If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the courtroom. Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

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1.12 OUTLINE OF TRIAL The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence w ill show. A party is not required to make an opening statement. The plaintiff will then present evidence, and counsel for the defendant may cross-examine. Then t he defendant may present evidence, and counsel for the plaintiff may cross-examine. After the evidence has been presented, the attorneys will make closing arguments and I will instruct you on the law that applies to the case. After that, you will go to the jury room to deliberate on your verdict.

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1.13 BURDEN OF PROOF ­ PREPONDERANCE OF THE EVIDENCE When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. You should base y our decision on all of the evidence, regardless of which party presented it.

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2.2 BENCH CONFERENCES AND RECES S ES From time to time during t he trial, it may become necessary for me to talk with the attorneys out of the hearing of t he jury , either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum. I may not always grant an at t orney 's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

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2.3 S TIPULATED TES TIMONY The parties have agreed w hat [witness]'s testimony would be if called as a witness. You should consider that tes t imony in the same way as if it had been given here in court.

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2.4 S TIPULATIONS OF FACT The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved.

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2.6 DEPOS ITION AS S UBS TANTIVE EVIDENCE [When a person is unavailable to testify at trial, the deposition of that person may be used at the trial.] A dep os it ion is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and law y ers for each party may ask questions. The questions and answers are recorded. The deposition of [witnes s ], which was taken on [date], is about to be presented to you. Depos it ion testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify. [Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.]

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2.10 LIMITED PURPOS E EVIDENCE The testimony [you are about t o hear] [you have just heard] may be considered only for the limited purpose of [describe purpose] and for no other purpose.

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2.13 US E OF INTERROGATORIES OF A PARTY Evidence is now to be pres ent ed t o y ou in the form of answers of one of the parties to written interrogatories submit t ed by the other side. These answers have been given in writing and under oath, before the actual trial, in res p ons e to questions which were submitted in writing under established court procedures. The ans w ers are entitled to the same cons ideration and are to be judged as to credibility and weight, and otherwise considered by you insofar as possible, as if the answers were made from the witness stand.

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CIVIL VOIR DIRE QUES TIONS 1. Read statement of the case. · Have any of y ou read or heard anything about this case from any source whatsoever? · Given this brief description of the facts, is there anything about t his case that would cause you to believe t hat y ou could not consider the evidence fairly and impartially according to the law? 2. Introduce self and staff: Lisa Richter, T ricia Lyons, Jeff Kilmark, Nicole Nakaji, and N ancy Johnson. Do any of you know me or any member of my staff on any bas is , social, professional or otherwise? 3. The P laintiffs are represented by Stephen G. M ontoya of the law firm of M ontoya Jimenez. Counsel please stand. · Do any of y ou know Plaintiffs' counsel, or any of the employees in his office on any basis, social, professional or otherwise? · Counsel, please introduce your client and those present at the couns el t able. Do any of you know these individuals on any basis, social, professional or otherwise? · If a company or corporation: Have any of you ever had a business or employment relationship of any kind with the plaintiffs?

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4.

T he defendant is represented by Brian Goodwin and JoEllen Benton of the law firm of Shughart Thomson & Kilroy. Counsel please stand. · Do any of you know the Defendant's counsel or any employees of their office on any basis, social, professional or otherwise? · Counsel, please introduce your client and those present at t he counsel table. Do any of you know t hes e individuals on any basis, social, professional, or otherwise? · If a company or corporation: Have any of you ever had a business or employment relationship of any kind with the defendant?

5.

The witnesses who may be called during this trial are: (See Witness Tab): · Do any of you know or think you might know any of these witnesses?

6.

Do any of you have strong feelings either for or against a party who brings a lawsuit?

7.

This is a civil case which is to be decided by the preponderance of the evidence. This is different from a criminal case where the government has to prove it s case beyond a reasonable doubt. Does anyone have a problem ap p lying a lower burden of proof than used in a criminal case?

8.

Have any of you or members of your family been a party or witness in any litigation (excluding domestic relations, traffic, or probate)?

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9. 10. 11. 12. 13.

Do any of you or any of the members of your family have any legal training? Have you ever had management or supervisory responsibilities? Have you ever had the authority to hire or fire people? Have you ever worked in Human Resources or a personnel office? Have you or anyone in your family, or a close friend, ever worked in a personnel or human resources department?

14.

Have you or anyone in your family or a close friend ever owned your ow n business?

15.

Does any member of the jury panel feel that no person should be entitled to sue on the basis of harassment at the workplace due to race, color, national origin, gender or religion?

16.

Do you think that claims of racial harassment or sexual harassment are exaggerated as problems in the workplace?

17.

Does any member of the jury panel feel that women today sometimes take advantage of their status?

18.

Have you or any member of your family or close personal friend ever been a victim of sexual harassment in the workplace?

19.

Have you or any member of your family or close p ers onal friend ever worked for any company or organization that may have been subject to a sexual harassment claim?

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20.

Have you or any member of your family or close personal friend filed a sexual harassment claim with the EEOC?

21.

Have you or any member of your family or close personal friend filed a law s uit resulting from sexual harassment in the workplace?

22.

I will instruct you on the law at t he conclusion of the case. If selected as a juror, you will take an oat h to follow the law. Do any of you think you would have trouble following the law even if you may disagree with it?

23.

Will you be able to render your verdict solely on the basis of the evidence presented during the trial, setting as ide any personal beliefs, opinions, or biases you might have?

24.

Ladies and gentlemen, we recognize that jury service is probably an inconvenience for y ou, t aking you away from your jobs and families and disrupting your daily routine. Jury service is, however, one of the most important duties t hat citizens of this country can p erform. For this reason, from time to time we ask citizens to make sacrifices and serve on juries, even when inconvenient. Prospective jurors can be

excused from jury service if the lengt h of the trial or the daily schedule would impose undue hardship. By undue hardship I mean more than inconvenience ­ I

mean genuine hardship that would be experienced by you or your family. This case is expected to last ___ days. Would the length of the trial create an undue hardship

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for any of you? 25. I expect to conduct trial on these dates and times: _______________________________________ _______________________________________ _______________________________________ _______________________________________ Would this schedule create an undue hardship for any of you? 26. Do any of you have any other reason whatsoever, such as a phys ical difficulty, a health problem or home problems t hat might interfere with your serving as a fair and impartial juror in this case? 27. We have handed you a sheet with 10 separate questions. Please stand and answer the questions. The last question asks about your prior jury service. With respect

to any juries on which you have served, please indicate the nature of the case and the outcome of the trial. 28. 29. Did any of you know each other before this morning? If there are any matters that you would rat her dis cus s privately that may affect your ability to be a fair and impartial juror, please let the Court know.

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1.

Juror Number The general location of your residence Length of time at current residence Education after high school, if any. State your major Marital status Number of children. Ages of children if under 18 Employment A. B. Yourself ­ current job and types of jobs throughout lifetime Spouse ­ current job and types of jobs throughout lifetime

2. 3. 4. 5. 6. 7.

8. 9. 10.

Civil, social, fraternal, union or professional organizations. Offices held in them Hobbies or recreational activities Prior jury service ­ civil or criminal

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