Free Response 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. No. CV 03-1408-PHX-DGC Plaintiffs' Response to Defendant's Motion In Limine to Exclude Evidence or Comments by Counsel Pertaining to Claims other than Hostile Environment Sexual Harassment (Oral Argument Requested)

Although ABC Supply's Motion in Limine regarding Claims other than Hostile Environment Sexual Harassment is devoid of any specific evidence that it seeks to exclude, Plaintiffs generally do not oppose the Motion in principle. However, Plaintiffs reserve their right to adduce evidence of gender-biased comments against women in the workplace in their case-in-chief in support of their sexual harassment claims, because severe or pervasive gender-biased comments can give rise to or contribute to a hostile work environment "based on sex" under Title VII of the Civil Rights Act of 1964. For example, in Harris v. Forklift Systems, Inc., 510 U.S. 17, 19 (1993), the Supreme Court of the United States concluded that the defendant's corporate president had created an hostile working environment in violation of Title VII based on these facts: Throughout Harris' [the plaintiff] time at Forklift, Hardy [the president of defendant corporation] often insulted her because of her gender and often made her the target of unwanted sexual innuendos. Hardy told Harris on several occasions, in the presence of other employees, "You're a woman, what do you

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know" and "We need a man as the rental manager"; at least once, he told her she was "a dumb ass woman." Similarly, reflecting the Supreme Court's recently issued opinion in Harris, in Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994), the Ninth Circuit concluded that: Sexual or gender-based conduct which is abusive, humiliating or threatening violates Title VII, even if it does not cause diagnosed psychological injuries to the victim. . . . It is enough, rather, if such hostile conduct pollutes the victim's workplace, making it more difficult to do her job, to take pride in her work, and to desire to stay in her position. (Emphasis added.) Specifically, in Steiner, in addition to making several sexual innuendos, the harasser called a female employee a "dumb ass woman," told her "you're a woman, what do you know," and referred to women as "dumb fucking broads." Id. at 1463-64. Accordingly-with this specific proviso-Plaintiffs conditionally do not oppose ABC Supply's Motion in Limine regarding claims other than Hostile Work Environment Harassment. 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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