Free Response in Opposition to Motion - District Court of Arizona - Arizona

1 2 3 4 5

Stephen G. Montoya (#011791) MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney for Plaintiffs

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Beth D'Aguanno and Frankie Tyree, plaintiffs, vs. American Builders & Contractors Supply Co., Inc., doing business as ABC Supply Company, Inc., defendant. Mr. John McCall has been the Manager of the Mesa branch of ABC Supply since December of 2002. At Mr. McCall's deposition of September 1, 2004, he testified that when he started his position as Manager of ABC's Mesa branch, he found it "interesting" to "note that the ABC Supply employees [at the Mesa branch] were far more comfortable with being vulgar and being rough, saying things that I thought were inappropriate." See attached Exhibit A, at pp. 48-49. Moreover, almost two years after Frankie Tyree and Beth D'Aguanno left ABC's employ, Mr. McCall testified that employees at the Mesa branch were still engaging in "the constant use of the 'f' word" and constantly "talked back and forth" in ways that Mr. McCall thought were inappropriate, for example, talking "about woman, about sex, about anything. . . ." Id. Similarly, Mr. McCall testified in his deposition that it was "a constant challenge" to prevent sexual harassment at ABC Supply's Mesa branch. Id. at p. 45. No. CV 03-1408-PHX-DGC Plaintiffs' Response to Defendant's Motion In Limine to Exclude Testimony of or References to John McCall (Oral Argument Requested)

Case 2:03-cv-01408-DGC

Document 87

Filed 08/31/2005

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ABC's Motion in Limine attempts to preclude this testimony because it is purportedly irrelevant and unduly prejudicial. Both of ABC's contentions in this regard are wrong. First, Mr. McCall's testimony is extremely relevant. Because many of Mr. McCall's subordinates at ABC, for example, Pedro Santiago, Bryan Chinavare, and Roger Sole, were also employed when Plaintiffs were employed by ABC, evidence of their misbehavior during Mr. McCall's tenure as Manager of ABC's Mesa branch is probative of whether or not they engaged in sexual harassment when Ms. Tyree and Ms. D'Aguanno worked at the Mesa branch. Moreover, ABC contends that it implemented "prompt and effective" corrective measures in response to Ms. D'Aguanno and Ms. Tyree's complaints of sexual harassment. See generally, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The fact that Mr. McCall was still contending with the same problem of which Ms. D'Aguanno and Ms. Tyree complained two years after the fact is probative of Plaintiffs' contention that ABC's corrective measures were neither prompt nor effective. This conclusion is underscored by the fact that the problem was generated by some of the same people, e.g., Pedro Santiago, Bryan Chinavare, etc. Accordingly, Mr. McCall's testimony is neither irrelevant nor unduly prejudicial and should be admitted in full. Accordingly, ABC Supply's Motion in Limine should be denied. Dated the 31st day of August, 2005.

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

-2-

Case 2:03-cv-01408-DGC

Document 87

Filed 08/31/2005

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CERTIFICATE OF SERVICE

:

I hereby certify that on August 31, 2005, I electronically transmitted the attached document 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 31, 2005, the 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

-3-

Case 2:03-cv-01408-DGC

Document 87

Filed 08/31/2005

Page 3 of 3