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. Defendant ABC Supply Company's ("ABC") Motion to Sever misstates the material facts and the applicable law. Specifically, it inaccurately contends that (1) Beth Ann D'Aguanno and Frankie Tyree's claims of sexual harassment do not arise out of the same "series of occurrences" and (2) do not involve common questions of law. In fact, as demonstrated below, both of ABC's assertions are false. A. Plaintiffs' claims are based upon the same facts. No. CV 03-1408-PHX-DGC Plaintiffs' Response in Opposition to Defendant's Motion to Sever (Oral Argument Requested)

First, Ms. D'Aguanno and Ms. Tyree worked together at the Mesa branch of ABC Supply with the vast majority of the witnesses in this case. Correspondingly, the witnesses that support Ms. D'Aguanno and Ms. Tyree's sexual harassment claims are identical, as the list of Plaintiffs' trial witnesses set forth in the Joint Final Pretrial Order of this matter unequivocally demonstrates. Moreover, many of the individuals who harassed Ms. D'Aguanno also harassed Ms. Tyree, specifically Pedro Santiago and Roger Sole.

Case 2:03-cv-01408-DGC

Document 83

Filed 08/31/2005

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Similarly, Ms. Tyree's direct supervisor at ABC Supply, Mr. John Simonelli, failed to take appropriate corrective measures in response to Ms. Tyree's complaints of sexual harassment and also completely ignored Ms. D'Aguanno's complaints of sexual harassment. In short, Ms. D'Aguanno and Ms. Tyree's respective claims of sexual harassment are supported by the same evidence. Severing the trials of their respective cases would result in a significant waste of judicial resources by requiring two juries to consider the same evidence of the violation of the same legal rights. Under these circumstances, ABC's Motion to Sever should be denied. B. Plaintiffs' claims raise identical issues of law.

In addition to involving the same facts and witnesses, Plaintiffs' claims are based upon identical statutory and decisional law, specifically, the law governing sexual harassment under Title VII of the Civil Rights Act of 1964 as interpreted by the Ninth Circuit. The commonality of the legal issues presented by Plaintiffs' respective claims is most efficiently demonstrated by reviewing the Proposed Joint Final Pretrial Order in this case. In fact, there is not a single legal issue presented in Ms. D'Aguanno's case that is also not presented in Ms. Tyree's case. Although ABC asserts that Ms. Tyree's sexual harassment claims do not involve misconduct by a supervisor, that assertion is false. In fact, Ms. Tyree's harassment claim is based (in part) on the misconduct of two of her supervisors, Mr. Jerry Pearman and Mr. John Simonelli. Similarly, Ms. D'Aguanno's sexual harassment claim is based (in part) on the misconduct of her supervisor, Pedro Santiago, and failure of yet another supervisor, Mr. John Simonelli, to do anything to either prevent or correct that misconduct. Accordingly, not only are the legal issues presented by Plaintiffs' respective claims "similar," they are identical.

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Conclusion: Based upon the identity of the evidence supporting Plaintiffs' respective claims and the identify of the legal theories applicable to Plaintiffs' claims, Plaintiffs were correct in asserting their complaints together and their respective claims should be tried together. Accordingly, for the foregoing reasons, Defendant's Motion to Sever 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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Case 2:03-cv-01408-DGC

Document 83

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