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. Ms. Janna Clark is a former Regional Manager of ABC Supply Company. See attached Exhibit A. At Ms. Clark's deposition of July 23, 2004, she testified that when Frankie Tyree was promoted to the position of Manager of ABC's Mesa branch, her colleague at ABC Supply, ABC Regional Manager Mr. John Simonelli, remarked that "he didn't care how good she was, he didn't want a female branch manager." Id. at p. 8. At her deposition, Ms. Clark also testified that Mr. Simonelli would often engage in disparaging "banter" about "women [in general] and women in business [in particular]." Id. at p. 9. Upon Ms. Tyree's promotion to Manager of the Mesa branch of ABC Supply, Mr. Simonelli became Ms. Tyree's supervisor's (Mr. Jerry Pearman) supervisor. In his capacity as Ms. Tyree's second-line supervisor, Mr. Simonelli participated in Ms. Tyree's annual performance reviews and was also responsible for investigating Ms. Tyree's complaints of sexual harassment against Jerry Pearman and Andrew Pearman. No. CV 03-1408-PHX-DGC Plaintiffs' Response to Defendant's Motion In Limine to Exclude Testimony of or Reference to Janna Clark (Oral Argument Requested)

Case 2:03-cv-01408-DGC

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ABC Supply seeks to exclude Mr. Simonelli's disparaging remarks regarding Ms. Tyree in particular and women in general because they are purportedly "irrelevant." As the Court is aware, under Rule 401 of the Federal Rules of Evidence, information is "relevant" if it tends to make a disputed issue of fact more probably true or less probably true than otherwise. In this case, Mr. Simonelli's remarks regarding Ms. Tyree in particular and women in general are probative of Ms. Tyree's allegation that Mr. Simonelli failed to implement ABC's alleged anti-discrimination policy in good faith when she complained that she was being sexually harassed by Jerry Pearman and Andrew Pearman. Specifically, someone who believed that Ms. Tyree should not have been promoted to branch manager regardless of her ability merely because she is a woman is less likely to enforce an anti-discrimination policy designed to protect women from gender discrimination than someone who does not make such remarks. Accordingly, Mr. Simonelli's remarks are relevant to Ms. Tyree's case-in-chief. Similarly, because Plaintiff Beth Ann D'Aguanno also complained of sexual harassment in the workplace directly to Mr. Simonelli, Mr. Simonelli's discriminatory remarks regarding women are also material to her case-in-chief. ABC Supply also seeks to exclude from evidence Ms. Clark's testimony that ABC Supply's senior management team made sexually offensive remarks regarding women during a company business trip. See Exhibit A, pp. 14-16. These remarks are clearly probative of the issue of whether or not ABC Supply implements its anti-discrimination policy in good faith. As the Ninth Circuit explained in Passantino v. Johnson & Johnson Consumer Products, 212 F.3d 493, 517 (9th Cir. 2000): Although the purpose of Title VII is served by rewarding employers who adopt anti-discrimination policies, it would be undermined if those policies were not implemented, and were allowed instead to serve only as a device to allow employers to escape punitive damages for the discriminatory activities of their managerial employees. Thus, to avail itself of a Burlington defense, an employer must show not only that it has adopted an anti-discrimination policy, but that it has implemented that policy in good faith.
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Thus, under this standard, evidence that ABC's senior management team openly made a series of sexually offensive remarks regarding young women in front of a woman colleague is strong proof that ABC does not implement its alleged anti-discrimination policy in good faith and in fact discriminatory harassment goes ignored and unpunished in the workplace at ABC Supply. For the foregoing reasons, ABC's Motion in Limine regarding Ms. Janna Clark 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

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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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