Free Pretrial Order - District Court of Arizona - Arizona

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Stephen G. Montoya (#011791) M ONTOYA J IMENEZ , P.A.
T he Great American T ower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney f or Plaintif f s

Brian Goodwin JoEllen Benton S HUGHART THOMSON & KILROY, P.C.
One Columbus Plaza 3636 North Central Avenue, Ste. 1200 Phoenix, Arizona 85012 (602) 650-2068 (fax) 264-7033

Attorney s f or Def endant

IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Beth D'Aguanno and Frankie Tyree, plaintiffs, vs. American Builders & Contractors Supply Co., Inc., doing business as ABC Supply Company, Inc., defendant.

No. CV 03-1408-PHX-DGC

Proposed Final Pretrial Order

The following is the joint Proposed Final Pretrial Order to be considered at the Final Pretrial Conference set for Friday, September 9, 2005, at 4:00 p.m. A. TRIAL COUNSEL FOR THE PARTIES: Plaintiff: Stephen G. Montoya Montoya Jimenez, P.A. 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667 [email protected]

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Defendant: Brian Goodwin JoEllen Benton Shughart Thomson & Kilroy, P.C. One Columbus Plaza 3636 North Central Avenue, Ste. 1200 Phoenix, Arizona 85012 B. STATEMENT OF JURISDICTION The j u ri s dictional basis of this dispute is 28 U.S.C. § 1331 and 42 U.S.C. § 2000e5(f)(3). Jurisdiction is not contested.

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C.
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STIPULATIONS AND UNCONTESTED FACTS AND LAW 1. The follow i n g m a te rial facts are admitted by the parties and require no proof: a. Beth D'Aguanno was employed by the Mesa Branch o f ABC Supply Company ("ABC Supply") from September 11, 2000 until February 1,

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2001.
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b.
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Frankie Tyree worked for the Me s a Branch of ABC Supply until her employment with the company ended on January 31, 2001.

2.
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The

follow ing

m a terial facts, although not

admitted, will not

be

contested at trial by evidence: None.
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3.

The following issues of law are uncontested and s tipula te d to by the parties:

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a.

To prevail on a hostile work environment claim under Title VII, plaintiff(s) must show: 1 ) th at she was subjected to verbal or physical conduct of

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a sexual nature; 2) that the conduct was un w elcome; and, 3) that the
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conduct was sufficiently severe or p e rva sive to alter the conditions of
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her employment and create an abusive environment.
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Vasquez v.

County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2004). b. To determine whether a work environment was su ffi ci e n tly severe or pervasive to violate Title VII, th e co u rt looks at all the circumstances,

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including the frequency of the conduct, its s everity, whether it was
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physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with the empl o ye e ' s work

performance. Id. c. Under Title VII, an e m p l o yer is subject to vicarious liability to a victimized e m p l o yee for an actionable hostile environment created by a supervisor with i m m e diate (or successively higher) authority over the employee. Se e Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998). In addition, the working environment must be both objectively

and subjectively perceived as abusive. In cases where the harassment does not re s u l t in a tangible adverse e mployment action, the employer may raise an affirmative de fe n s e . Th i s affirmative defense requires the employer to prove b y a

preponderance o f evidence that (a) the employer exercised reasonable care to prevent and correct promptly a n y h a rassing behavior, and (b) that the employee unreasonably failed to take advantage of any p re ventive or corrective opportunities provided by the employers or to a vo i d the harm. Burlington Industries, Inc. v. Ellerth, 524 U.S. at 765. Id. d. Under Title VII, a n employer's liability to a victimized employee for an actionable hostile environment created by a co -worker is direct, not derivative, in that an employer is o n l y responsible for its own actions or omission s , not for a co-worker's sexually harassing conduct. Swenson v. Potter, 371 F. 3 d 1 1 8 4, 1191-1192. Where a Title VII Plaintiff alleges sexual harassment by a co-worker, the employer can be held liable only where its own negligence is a cause of the harassment. Id . a t 1191. The employer cannot be held liable for

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misconduct of which it is unaware. Id. at 1 1 9 2. An employer's liability for sexual harassment of an empl o ye e by a co-employee runs only fro m the time the employer knew or should have known about th e conduct and failed to stop it. Id. The employer is only responsible for acts of miscondu ct committed after it has been put on notice. Notice of the s e xu ally harassing

conduct triggers an employer's duty to take prompt corrective a ction that is "reasonably calculated to e n d th e harassment." Id. This

obligation has two parts 1) the te m p o ra ry steps the employer takes to deal with the situation while it determines whether the compl a i nt is justified; and, 2) the permane n t re medial steps the employer takes once it has completed its investigation. Id. D. CONTESTED ISSUES OF FACT AND LAW Issue #1: Whether Pl a i n tiffs were subjected to an unlawful hostile work environment while employed by ABC. Plaintiffs Contend: Plaintiffs contend that th e y were subjected to severe an d /or pervasive sexual harassment by both supervisors and co-employees while Plaintiffs were employment by ABC. Defendant Contends: Defendant contends that plaintiffs were not subjected to an unlawful hostile work environment w h i le employed by ABC.

Issue #2:

Whether Plaintiffs provided ABC with notice o f the hostile work environment;

Plaintiffs Contend:

Plaintiffs contend that th e y p ro vided ABC with direct, actual notice of the hostile work environment at ABC

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and/or ABC either knew or should h a ve known of the hostile work environment a t ABC because it pervaded the workplace. Defendant Contends: D e fe n d ant contends that it was not provided with direct actual notice of a hosti l e w o rk environment and/or it did not know or have reaso n to know of an alleged hostile work envi ronment ABC. In those instances where ABC was notified o f s p ecific instances of misconduct, ABC took prompt corrective and effective remedial measures.

Issue #3:

Wh e th e r

ABC

took

prompt and

effective corre cti ve

measures i n response to any complaints of harassment by Plaintiffs; Plaintiffs Contend: Plaintiffs contend that ABC fa i l e d to take prompt or e ffective corrective measures in response to thei r

complaints of sexual harassment.

Defendant Contends:

Defendant conten d s that in those instances where ABC w a s notified of specific instances of misconduct, ABC took prompt corrective and effective remedial measures.

Issue #4:

Whether ABC is harassment;

liable

to

Plaintiffs for the alleged

Plaintiffs Contend:

Plaintiffs contend that ABC i s l iable to Plaintiffs for the alleged harassment because ABC failed to take prompt and effective corrective measures i n response to their complaints of harassment and in fact reta liated against Plaintiffs after they complained of the harassment.
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Defendant Contends:

Defendant contends that it is not liable fo r th e a lleged harassment of co-workers because either it had no notice of alleged harassment, or when i t d i d have notice, it took prompt corrective a ction that was reasonably calculated to end the harassment. D e fe ndant contends that it is not liable for the alleged harassment by supervisors becau s e it exercised reasonable care to prevent and correct promptly any harassing behavior and the p l a i n tiffs unreasonably failed to take advantage of any preventative or co rrective opportunities provided by ABC or to avoid the alleged harm. Defendants object to plaintiff' s s tatement regarding retaliation as this issue has already been decided against plaintiffs.

Issue #5:

Whether Plaintiffs' are entitl e d to an award of nominal damages against ABC;

Plaintiffs Contend:

Plaintiffs co n tend that they are entitled to an award of nominal damages against ABC.

Defendant Contends:

Plaintiffs are not e n ti tl e d to an award of any damages against ABC.

Issue #6:

Whether

Plaintiffs '

a re

e n ti tl e d

to

an

award of

compensatory damages against ABC; Plaintiffs Contend: Plaintiffs co n te n d they are entitled to an award of

compensatory damages against ABC for thei r m ental anguish, humiliation, and loss of enjoyment of life. Defendant Contends: Plaintiffs are not entitled to an award o f a n y d amages against ABC.
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Defendant denies that plaintiffs suffered

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any m e n tal anguish, humiliation or loss of enjoyment of li fe. Defendant denies that Plaintiffs are entitled to any damages for emotional distress.

Issue #7:

Whether Plaintiffs' a re e n titled to an award of punitive damages against ABC;

Plaintiffs Contend:

Plaintiffs contend they are entitled to an award of p u n i ti ve damage s a g ainst ABC because ABC acted in reckless disregard of their federally p ro te cted rights in reference to the sexually hostile work environment at ABC.

Defendant Contends:

Plaintiffs a re n o t e n titled to an award of any damages against ABC. Defendant denies i t acted in reckless

disregard of any of plaintiff's federally protected rights.

Issue #8:

Whether Plaintiffs' are entitled to an aw a rd o f attorney fees and costs against ABC;

Plaintiffs Contend:

Plaintiffs contend they are e n ti tl e d

to

an award of

attorneys fee s a n d costs against ABC if they prevail against ABC at trial. Defendant Contends: Plaintiffs a re n o t entitled to an award of attorney fees and costs against ABC.

Issue # 9:

Whether Defendants a re entitled to reasonable attorney's fees.

Plaintiffs Contend:

Plainti ffs contend that Defendant is not entitled to attorney fees as a matter of law.
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Defendant Contends:

Defe n d a n ts

a re entitled to an award for reasonable

attorney's fees if they prevail at trial.

E.

LIST OF WITNESSES 1. (a) 1. Plaintiffs' Witnesses: witnesses who shall be called at trial Frankie Tyree c/o Stephen G. Montoya Montoya Jimenez, P.A. 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 Ms. Tyree will testify about the pattern and practice of s e xu al harassment against women in the workplace at ABC Supply.

2.
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Beth D'Aguanno c/o Stephen G. Montoya Montoya Jimenez, P.A. 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 Ms. D'Aguanno will testify about the pattern and practice of s e xu a l harassment against women in the workplace at ABC Supply.

3.

Karen Allen c/o Stephen G. Montoya Montoya Jimenez, P.A. 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718

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Ms . Allen will testify in accordance with her deposition in this matter, n a m e l y that women were subjected to severe and pervasive g e n d e r based discrimination and sexual harassment at ABC.

4.

Jana Clark 1745 North St. Thomas Circle Orange, California 714-637-0420 Ms. Clark will testify in accordance with her deposition in this matte r, n a mely that women were s u b j e cted to severe and pervasive gender based discrimination and sexual harassment at ABC.

5.

Cindy Conn Ms. Conn will testi fy i n accordance with her deposition, specifically, that women were subjected to severe and pervasive sexual harassment in the w o rkplace at ABC and that ABC's human resources department did not a ct promptly or effectively in response to their complaints.

6.

Steve Mulcock (Address presently unknown) 602-738-1729 Mr. Mulcock will testify in accordance with his deposition testimony i n this matter, namely, that Ms. Tyree's co-workers at ABC made offensive sexual remarks to customers at ABC regarding Ms. Tyree.

7.

John McCall Mr. McCall w i l l te s ti fy in accordance with his deposition testimony in this case, specifically that even after Ms. Tyree's e m p l oyment ended with ABC and she filed a Charge of Discrimination with the EEOC, Mr. McC a l l would "consequently" have to admonish his subordinates at ABC not to engage in sexually offensive conduct.

8.

Lisa Indgjer c/o Shughart Thomson & Kilroy, P.C. 3636 North Central Avenue, Ste. 1200 Phoenix, Arizona 85012

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Ms . Indgjer will testify in accordance with her deposition testimony in this matter.

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9.

John Simonelli c/o Shughart Thomson & Kilroy, P.C. 3636 North Central Avenue, Ste. 1200 Phoenix, Arizona 85012 Mr. Simonelli will testify in accordance with h i s deposition testimony in this

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matter. 2. Defendant's Witnesses: Witnesses who shall be called at trial as to Plaintiff Tyree Claims. Lisa Indgjer c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Ave., Ste. 1200 Phoenix, Arizona 85012

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(a) 1.

Lisa Indgjer is the Human Resources Director of Defendant ABC. Ms. Indgjer will
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testify concerning her kno w ledge of the allegations contained in Plaintiffs' Complaint. In
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addition, Ms. Indgjer will testify that she firs t re ceived notice of Frankie Tyree's sexual
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harassment complaint against Jerry Pearman on Ja n u a ry 5, 1999. Immediately upon
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receiving notice of Ms. Tyree's harassment complaint against Jerry Pearman , the
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company arranged for Mr. Pearman to fly to its Beloit, Wi s co n s i n headquarters. There,
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Mr. Pearman was verbally reprimanded and a warning placed in his file. He was fu rth e r
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instructed to stay away from th e Me s a Branch, and from Ms. Tyree, and to concentrate
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his efforts in ABC's Glendale Branch. After ABC separated Ms. Tyree and Mr. Pearman,
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no further incidents occurred.
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2.

John Simonelli c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Avenue, Suite 1200 Phoenix, Arizona 85012

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Mr. Si m o n e lli is ABC's Regional Director for its Rocky Mountain Region.

Mr.

Simonelli will respond to the allegations made by Plaintiff Frankie Tyree. He will also testify that the branch ma n a g ers are responsible for preventing sexual harassment. He will testify that Ms. Tyree did not complain of a n y s e xu a l m i sconduct by Jerry Pearman after January 1999. He will also testify that he verbally reprimande d An d y Pe arman for making a distasteful comment about Ms. Tyree's daughter. 3. P. Gregg Curry Navigant Consulting, Inc. 201 E. Washington Street, Ste. 1700 The Collier Center Phoenix, AZ 85004

Mr. Curry is Defendant's expert as to econ o m i c damages and shall testify consistent with his written report dated October 1, 2004.. 4. Robert Taylor Vocational Diagnostics, Inc. 3101 North Central Avenue, Ste. 1120 Phoenix, AZ 85012 Telephone (602) 285-0625

Mr. Taylor is Defendant' s vo cational rehabilitation expert and shall testify consistent with his written report dated September 27, 2004.. B. Witnesses who may be called at trial as to Tyree Claims. 1. Jerry Pearman c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Ave., Ste. 1200 Phoenix, Arizona 85012

Mr. Pearman is employed by ABC as an outside sales representative. He may b e called to testify that he and Frankie Tyree maintained a close relatio n s h i p . H e will testify that Frankie Tyree asked him to g i ve h e r a way at his wedding and that he did in fact give her away at her wedding. He will also te s ti fy th at, because of his close relationship with
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Ms . Tyree, he did not know that his conduct towards her was unwelcome. H e d i d n o t i n te n d for his conduct to be perceived as sexual and if he knew that it was unwelcome by Ms. Tyree, he would h a ve stopped it. He will also testify that he was reprimanded by ABC for his conduct and never engaged in the conduct again. 2. Pedro Santiago c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Ave., Ste. 1200 Phoenix, Arizona 85012

Mr. Santiago was an assistant manager for Defendant ABC. Mr. Santiago may be ca l l ed to respond to Plaintiff Frankie Tyree's allegations that the work environmen t w a s hostile. Mr. Sa n ti a g o will also testify that Ms. Tyree promoted him to assistant manager. Mr. Santiago will also testify that Ms . Tyree commonly used profanity when yelling at her husband and daughter on the phone at work. Ms. Tyree would call her daughter a "fucking b i tch " and tell her daughter to "go to hell." On one occasion Mr. Santiago overh e a rd Ms . Tyree fighting with her h u sband about her husband doing more for his mother than he did for Ms. Tyree. Ms. Tyree told her husband to "get your mom to suck your dick from now on." 3. Brian Chinavare c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Avenue, Suite 1200 Phoenix, Arizona 85012

Mr. Chinavare has b e e n e m p l o yed by ABC for 10 years as a roof loader. Mr. Chinavare may be called to testify regarding Frankie Tyree's conduct and behavior in the w o rkp l ace On one occasion, Frankie Tyree commented that "the only thing a woman ' s mouth is good for is one thing." According to Mr. Chinavare, Ms. Tyree was very

unprofessional and yelled at everyone. She smoked cigarettes inside the building when she knew she should not. Ms. Tyree was a poor manager who had no respect for anyone. On a few occasions, Mr. Chinavare witnessed Ms. Tyree showing up fo r w o rk "hung over" from the night before.
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4.

Roger Sole c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Ave., Ste. 1200 Phoenix, Arizona 85012

Mr. Sole is an employee of Defendant ABC who worked with Ms. Tyree at th e Mesa, Ari zona branch. He may be asked to testify concerning his knowledge of the al l e g a ti o n s made by Ms. Tyree. 5. Deborah Harvey c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Ave., Ste. 1200 Phoenix, Arizona 85012

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Ms. H a rve y i s presently employed by ABC as a Customer Financial Services (CFS) As s o ciate in Kansas City, Missouri. Ms. Harvey may be asked to testify that s h e u s e d to room with Ms. Tyree at company conventions. At the company's Las Ve g a s

convention, she was told by Ms. Tyree about some inappropriate cond u ct by Jerry Pearman, but does not recall personally seeing the alleged conduct. Fo llowing that

convention, Ms. Harvey was contacted by Lisa Indgjer and interviewed abo u t the incident in Las Ve g a s as part of Ms. Indgjer's investigation on behalf of ABC. Ms. Harvey never witnessed nor heard of anyone o th e r than Mr. Pearman touching or acting inappropriately towards Ms. Tyree at any of the company's co n ve n ti o n s . Ms. Harvey shall testify that Ms. Tyree routinely flirted with co-workers a n d instigated or welcomed flirtatious behavior. Ms. Tyree drank a lot at company convention s a n d Ms . Harvey often had to make sure that Ms. Tyree woke up the next m o rn i ng for company meetings after drinking heavily the night before. Ms. Harvey will tes ti fy th a t both Ms. Tyree and John Thede told her that they were having an affair. Ms. Harvey will testify that Ms. Tyree appeare d to welcome the conduct she now complains of and that she never saw Ms. Tyree complain a b o u t i t or reject anyone's advances. 6. Carl Hoop
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602-367-6470 Mr. Hoop is a superintenden t o f a roofing company and a long time customer of ABC Supply's Mesa and Glendale branches . According to Mr. Hoop, Ms. Tyree used to

flirt with him, as well as other customers and employees ins i d e the branch. On one occasion , Mr. H o o p was at the Mesa branch and was asked by Ms. Tyree whether "he was horny." Subsequently, d u ring another visit to ABC's Mesa branch, Mr. Hoop was

outside in the yard loo ki n g a t ti l e with Ms. Tyree when Ms. Tyree lifted her dress to show Mr. Hoop that she was not wearing any underwear and propositioned him to have sex. Mr. Hoop declined and told Fra n ki e she was a married woman and Frankie Tyree became upset. 7. Marvin Ternik c/o Shughart, Thomson & Kilroy PC 3636 N. Central Avenue, Suite 1200 Phoenix, Arizona 85012

Mr. Te rn i k i s an employee of ABC and was employed in ABC's Mesa Branch at all relevant times herein. He is expecte d to testify that he never witnessed anyone harassing Ms. Tyre e , nor is he aware of any complaints of harassment made by either of them to anyone at ABC. 8. Kelly Rhodes 480-239-0855

Ms. Rhodes is a former employee of ABC . Sh e is expected to testify regarding the reasons she quit ABC, and to Frankie Tyree's knowled g e of those reasons. She will further testify to Frankie Tyree' s conduct in the workplace, her treatment of customers, employees and vendors, and to her knowledge of Ms. Tyree's affa i r with John Thede. Ms. Rhodes will testify that Ms. Tyree frequently came in late , l e ft early, verbally abused her workers and made many of h e r e m p l o yees unhappy. According to Ms. Rhodes, Ms. Tyree would often leave during the d a y fo r long periods of time to allegedly get her car washed, pick up her dry cleaning, or just hang out at her fri e n d Beth D'Aguanno's house.
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According to Ms. Rhodes, Mr. Pearman has never been anything but po l i te a n d respectful towards her. H o w e ver, during her employment with ABC, Mr. Pearman was hardly ever Ms. R hodes recalls being told by Ms. Tyree that Jerry

present at the Mesa branch.

Pearman had sexually harassed her and that she was goin g to get a lawyer. However, Ms. Rhodes never witnessed any sexual harassment by Jerry Pearman or any o f the other employees. On one occasion, Ms . Rhodes recalls working late with Ms. Tyree and

commenting that her husband married her because she can tune up his truck, to which Ms. Tyree responded "my husband married me because I swallow." Rhodes, ABC was a nice place to work when Frankie Tyree wasn't there. C. Claims. D e fe ndants intend to offer select testimony from the following witness depositi o n s . However, Defendants reserve the right to call each of the following witnesses at trial. 1. Mike Lyle c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Avenue, Suite 1200 Phoenix, Arizona 85012 Witnesses Who are unlikely to be called at trial as to Plaintiff Tyree's Accordi ng to Ms.

2.

Nora Bernal c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Avenue, Suite 1200 Phoenix, Arizona 85012

3.

Andrew Pearman c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Avenue, Suite 1200 Phoenix, Arizona 85012

D.

Witnesses who shall be called at trial as to Plaintiff D'Aguanno Claims. 1. Roger Sole
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c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Ave., Ste. 1200 Phoenix, Arizona 85012 Mr. Sole is an employee of Defendant ABC who worked w i th Pl a i n tiffs at the Mesa, Arizona branch. He is expected to testify in response to Pl a i n tiff D'Aguanno's claims of hostile work environment. 2. Brian Chinavare c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Avenue, Suite 1200 Phoenix, Arizona 85012 Telephone (602) 650-2000

Mr. Chinavare has been em p l o ye d b y ABC for 10 years as a roof loader. Mr. Chinavare shall testify regarding his employment at ABC, Beth D'Aguanno's conduct and behavior in the workplace, and, specifically, the allegations contained in Be th D'Aguanno's affidavit. According to Mr. Chinavare, Beth D'Agua n no would flirt with the other

employees out in the yard.

3.

Pedro Santiago c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Ave., Ste. 1200 Phoenix, Arizona 85012

Mr. Santi a go was an assistant manager for Defendant ABC. Mr. Santiago shall
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testify concerni n g the Plaintiffs' employment as well as his knowledge of the allegations
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contained in Plai n ti ffs' Complaint. Mr. Santiago shall also testify that Richard Toddey was
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not Be th D ' Aguanno's supervisor and had no supervisory authority over her. Both Beth
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D'Aguanno a n d R i ch a rd Toddey were office personnel with different duties. Mr. Santiago
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will also testify that he did not terminate Beth's employment.
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E.

Witnesses who may be called at trial as to D'Aguanno Claims.
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1.

Richard Oliver c/o Shughart Thomson & Kilroy 3636 N. Central Ave., Ste. 1200 Phoenix, Arizona 85012

Mr. Oliver is an employee of Defendant ABC who worked with Plainti ffs at the Mesa, Arizona branch. He is expected to testify concerning Plaintiffs' employment as well as his knowledge of the allegations contained in Plaintiffs' Complaint. 2. Richard Toddy

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Mr. To ddy is an employee of Defendant ABC who worked with Plaintiffs at the Mesa, Arizona b ranch. He is expected to testify concerning his knowledge of the allegations contained in Plaintiffs' Complaint. 3. Marvin Ternik c/o Shughart, Thomson & Kilroy PC 3636 N. Central Avenue, Suite 1200 Phoenix, Arizona 85012

Mr. Ternik is an employee of ABC and was employed in ABC's Mesa Bra n ch at all relevant times herein. He is expected to testify th a t he never witnessed anyone harassing Ms. Tyree or Ms. D'Aguanno , n o r i s h e a ware of any complaints of harassment made by either of them to anyone at ABC. 4. John Simonelli c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Avenue, Suite 1200 Phoenix, Arizona 85012

Mr. Simonelli is ABC ' s Regional Director for its Rocky Mountain Region. He may te s ti fy that he made the decision to terminate Ms. D'Aguanno based on her perfo rm a n ce and that he was not awa re o f a n y complaints of sexual harassment by Ms. D'Aguanno at the time he terminated her. F. claims.
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Witnesses who are unlikely to be called at trial as to Plaintiff D'Aguanno's

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Defendants intend to offer select testimony from the following witness d e p o s i tions. However, Defendants reserve the right to call each of the following witnesses at trial. 1. Frankie Tyree c/o Montoya Jimenez, P.A. 3200 N. Central Ave. Ste. 2550 Phoenix, Arizona 85012

2.

Nora Bernal c/o Shughart Thomson & Kilroy, P.C. 3636 N. Central Avenue, Suite 1200 Phoenix, Arizona 85012

Each party understands that it is responsible for ensuring that the w i tn e s ses it wishes to call to testify are subpoenaed. Each party fu rther understands that any witness a party wishes to call shall be listed on that party' s l i s t of witnesses; the party cannot rely on the witness having been listed or subpoenaed by another party. F. LIST OF EXHIBITS 1. The following exhibits a re admissible in evidence and may be marked in evidence by the Clerk: A. Plaintiff's Exhibits: 1. Plaintiff Beth D'Aguanno's EEOC Charge of Discrimination o f March 21, 2001; 2. Pl aintiff Frankie Tyree's EEOC Charge of Discrimination of March 21, 2001.

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B.

Defendant's Exhibits: 1.

2.
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As

to the following exhibits, the parties have reached the following

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stipulations: Inapplicable. A. B. 3. Plaintiff's Exhibits: Defendant's Exhibits:

As to the followi n g exhibits, the party against whom the exhibit is to be offered objects to the admission of the exhibit and offers the objection stated below: A. Plaintiff's Exhibits: 1. B. DEFENDANT'S TRIAL EXHIBITS Tyree Claim

12 13 14 15 16 17 18 19 20 21 22 23

1.

ABC's Harassment Policy/Acknowledgment of Receipt [Plaintiffs ob j ect to this exhibit on grounds of hearsay and foundation]

2.

ABC's Manager Training Notebook [Plaintiffs object to this exhibit on grounds of hearsay and foundati o n]

3.

Written Reprimand pertaining to Jerry Pearman [Plaintiffs object to this exhibit on grounds of hea rsay and foundation]

4.

EEOC Charge and Finding [Plaintiffs object to this exhibit o n grounds of relevance, hearsay, and foundation]

5.
24 25 26 27 28

Simonelli's Action Plan to Improve Branch [Plaintiffs object to this exhibit on gro u nds of hearsay and foundation]

6.

Expert Report of P. Gregg Curry dated October 1, 2004. [Plaintiffs object to this exhibit on grounds of relevance]

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7.

Expert Report of Robert Taylor dated September 27, 2004. [Plaintiffs object to this exhibit on grounds of relevance]

8.

ABC's Brochure for February 1999 Manager's Meeting. D'Aguanno Claim

1. 2. 3. 4.

ABC's Harassment Policy/Acknowledgment of Receipt Timeclock cards for Plaintiff Beth D'Aguanno. Purchase Orders prepared by Beth D'Aguanno Written Reprimand EEOC Charge and finding

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

5.

Each party hereby acknowledges by signing this joint Proposed Final Pretri a l Order that any objections not specifically raised herein are waived. G. DEPOSITIONS TO BE OFFERED Each party hereby acknowledges by signing this joint Proposed Final Pre trial Order that any deposition not listed as provided herein will n o t b e a l l owed, absent good cause. 1. PLAINTIFFS' DEPOSITION DESIGNATIONS

Plaintiffs intends to use the videotaped depositions of Ms. Cindy Conn and Ms. Jana C l a rk i n th e i r entirety. Plaintiffs also reserve their right to use the deposition of any tri a l witness for purposes of impeachment. 2. A. DEFENDANT'S DEPOSITION DESIGNATIONS Defendant intends to offer select testim o n y from the following depositions as

to Plaintiff Tyree's claims: 1. Mike Lyle Page 4, Line 13, through Page 13, Line 15. Page 19, Line 25, through Page 20, Line 7.
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Page 26, Line 3, through Page 30, Line 24. Page 86, Line 10, through Page 87, Line 23. 2. Deborah Harvey Page 7, Lines 2-6, through Page 8, Lines 2-4. Page 15, Lines 6-7 Page 25, Line 9, through Page 34, Line 2. Page 77, Line 20, through Page 79, Line 13. Page 84, Line 2, through Page 85, Line 2.

10 11 12 13 14 15

3.

Nora Bernal Page 4, Lines 13-15 Page 17, Lines 8-17, through Page 17, lines 21-22 Page 18, Line 20, through Page 20, Line 14. Page 58, Line 10, through Page 59, Line 22.

16 17 18 19 20 21 22 23 24 25 26

4.

John McCall Page 4 Lines 14-16. Page 5, Lines 1-5. Page 15, Lines 1-3. Page 65, Line 10, through Page 66, Line 3.

5.

Andrew Pearman Page 5, Lines 18-20. Page 6, Lines 4-11. Page 8, Line 19 through Page 9, Line 20.

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Page 13, Line 14 through Page 15, Line 3.
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Defendants reserve the right to use the depositions of Jana Clark and Cindy Conn. B. Defendant intends to offer s e l ect testimony from the following depositions as to Plaintiff D'Aguanno's claims: 1. John Simonelli Page 4, Lines 13-15.

6 7 8 9 10

Page 12, Lines 23-24. Page 18, Line 1, through Page 19, Line 15. Page 77, Lines 11-15. Page 79, Line 6, through Page 82, Line 4.

11 12 13 14 15 16 17 18 19 20 21

2.

Frankie Tyree Page 4, Lines 8-9. Page 282, Line 25, through Page 284, Line 8.

3.

Nora Bernal Page 4, Lines 13-15. Page 17, Lines 8-17. Page 17, Lines 21-22. Page 18, Line 20, through Page 20, Line 14. Page 37, Line 5, through Page 38, Line 19.

22 23 24 25 26 27 28

Page 40, Line 7, through Page 41, Line 4. Page 58, Line 17, through Page 59, Line 22. Page 66, Lines 13-18. Page 67, Line 25, through Page 68, Line 18. (Objections) Defendants reserve the right to use the depositions of Jana Clark and Cindy Conn.

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[Plaintiffs object to the portions of deposition transcrip t o ffe red by Defendant as irrelevant, lacking in foundation and unduly prejudicial.] H. MOTIONS IN LIMINE Defendants have filed their Motions in Limine in accordance with the i n s tru ctions contained in the Court's Order Setting Final Pretrial Conference. I. LIST OF PENDING MOTIONS Plaintiff's: None

Defendant: Motion to Sever the Plaintiffs on the Ground of Misjoinder J. PROCEDURES FOR EXPEDITING TRIAL Counsel for the parties have conferred and have stipulated to certain facts and to the

12

admissibility of certain exhibits in order to expedite the trial of this dispute.
13 14 15 16 17 18 19 20 21 22 23 24

K.

ESTIMATED LENGTH OF TRIAL 4 hours for opening statements and closing arguments 20 hours for Plaintiff's case 15 hours for Defendant's case 4 hours for rebuttal

L.

JURY DEMAND The parties s ti p u l a te that the request for a jury trial was timely and properly made.

M.

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR BENCH TRIALS Inapplicable.

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N.

JOINT

PROPOSED

JURY

INSTRUCTIONS,

JOINT

PROPOSED

VOIR

DIRE

QUESTIONS, AND PROPOSED FORMS OF VERDICT FOR JURY TRIALS The parties have filed the Joint Proposed Jury Instructions, Joint Proposed Voir D ire
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Questions, and Proposed Forms of Verdict with the Clerk of the Court. O. CERTIFICATIONS The undersigned counsel for each of the p a rties in this action do hereby certify and acknowledge the following: 1. 2. 3. All discovery has been completed. The identity of each witness has been disclosed to opposing counsel. Each e xh ibit listed herein: (1) is in existence; (2) is numbered; and (3) has been disclosed and shown to opposing counsel. 4. The parties have complied in all respects with the mandates of the C o u rt's Rule 16 Scheduling Order and Order Setting Final Pretrial Conference. 5. The parties have made all of the disclosures required by the Federal rules of Civil Procedure (unless otherwise previously ordered to the contrary).

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6.

The parties acknowledge that once this Proposed Final Pretrial Order has been signed and lodged by the parties, no amend m ents to this Order can be made without leave of Court.

P.

INFORMATION FOR COURT REPORTER 1. 2. 3. 4. 5. Proper names, including those of witnesses. Acronyms. Geographical locations. Technical (including medical) terms, names or jargon. Case names and citations.

In accordance w i th the directives of the Court regarding pretrial filings, the parties will file a "Notice to Court Reporter" one week before trial. Dated the 19th day of August, 2005.

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MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiffs s/ JoEllen Benton Brian Goodwin JoEllen Benton Shughart Thomson & Kilroy, P.C. One Columbus Plaza 3636 North Central Avenue, Ste. 1200 Phoenix, Arizona 85012 Attorneys for Defendant

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Based on the foregoing, IT IS ORDERED that this Proposed Final Pretrial Order jointly submitted by the parties is hereby APPROVED and ADOPTED as the official Pretrial Order of this Court. DATED this 10th day of September, 2005.

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CERTIFICATE OF SERVICE

:

I hereby certify th a t o n August 19, 2005, I electronically transmitted the attached d o cu ment 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: Brian Goodwin JoEllen Benton Shughart Thomson & Kilroy, P.C. One Columbus Plaza 3636 North Central Avenue, Ste. 1200 Phoenix, Arizona 85012

:

I further certify that on August 19, 2005, th e attached document was also sent via United States First Class Mail, postage prepaid to:

The Honorable David G. Campbell United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

s/ Stephen G. Montoya

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