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

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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

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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. Cindy Conn was employed at the Tucson branch of ABC Supply from May 8, 2000 to August 6, 2000. See attached Exhibit A, pp. 5-6. During her brief tenure of employment at ABC Supply in Tucson, Ms. Conn's direct supervisor was Mr. Andy Pearman. Id. at p. 6. Andy Pearman's direct supervisor was Mr. John Simonelli. Id. at p. 7. During the course of supervising Ms. Conn, Mr. Pearman subjected Ms. Conn to a pattern of severe sexual harassment. For example, in Ms. Conn's deposition of October 14, 2004, she testified that Mr. Andy Pearman remarked that his reproductive organ was so large that he had to "wrap it around his waist so it didn't fall out of his pants." Mr. Pearman would also talk about pornography that he found on the internet and talk about sex in general all of the time. Id. at p. 10, pp. 11-13. Ms. Conn also interacted with Andy Pearman's father at ABC Supply in Tucson, ABC Supply Sales Manager Mr. Jerry Pearman. Id. at pp. 23-24. No. CV 03-1408-PHX-DGC Plaintiffs' Response to Defendant's Motion In Limine to Exclude Testimony of or Reference to Cindy Conn (Oral Argument Requested)

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During Ms. Conn's deposition, she testified that she also heard Mr. Jerry Pearman make offensive sexual remarks in the workplace. For example, Ms. Conn testified that she personally heard Jerry Pearman make "sexual jokes and sexual comments" at ABC Supply's Tucson branch. Id. Ms. Conn reported the sexual harassment summarized above to ABC Supply's Human Resource Manager, Ms. Lisa Indgjer. Id. at pp. 27-31. Notwithstanding her complaints, the harassment at the workplace continued until Ms. Conn was forced to resign her position with the company on approximately August 6, 2000. Id. Moreover, Human Resource Director Lisa Indgjer never responded to Ms. Conn's complaints until after Ms. Conn was forced to quit. As the Court is aware, Frankie Tyree has also alleged that she was sexually harassed by both Andy Pearman and Jerry Pearman while employed at ABC Supply. Moreover, Ms. Tyree has alleged that although she complained of the harassment to both her Regional Manager at ABC Supply, Mr. John Simonelli, and the Human Resource Director of ABC Supply, Ms. Lisa Indgjer, the harassment continued until she was forced to resign on January 31, 2001, just a few months after Ms. Indgjer was forced to resign on August 6, 2000. Ms. Conn's testimony is clearly probative of Ms. D'Aguanno and Ms. Tyree's sexual harassment claim against ABC Supply. Under Federal Rule of Evidence 401, evidence is relevant and presumptively admissible if it has the "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In this case, the testimony of Cindy Conn is probative of whether or not ABC tolerates the sexual harassment of its women employees by ABC supervisors. Specifically, both Frankie Tyree and Cindy Conn were subjected to sexual harassment by two ABC supervisors, Jerry Pearman and Andy Pearman. After Ms. Conn and Ms. Tyree

complained about the harassment to ABC HR Director Lisa Indgjer, the harassment nevertheless continued.
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As reflected in the Final Pretrial Order in this case, ABC intends to contend to the jury at trial that it is entitled to the affirmative defenses recognized in 1998 by the Supreme Court of the United States in Burlington Industries, Inc. v. Ellerth 524 U.S. 775 (1998) and Faragher v. City of Boca Raton 524 U.S. 775 (1998). See Proposed Final Pretrial Order, p. 3. By affirmatively contending that it has a written sexual harassment policy that it enforces promptly, effectively, and in good faith, ABC Supply "opens-the-door" to allegations that in fact it does not enforce its anti-discrimination policy promptly or effectively or in good faith. Hence, Ms. Conn's testimony is directly probative of ABC Supply's affirmative defenses under Faragher and Ellerth. This conclusion is underscored by the fact that the two of the ABC supervisors who harassed Ms. Conn, Andy Pearman and his father Jerry Pearman, also sexually harassed Ms. Tyree. For these reasons, ABC Supply's Motion in Limine regarding Ms. Conn's testimony 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

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CERTIFICATE OF SERVICE

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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

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