Free Motion in Limine - District Court of Arizona - Arizona

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Brian M. Goodwin AZ (002487) Jessica Franken AZ (011484) JoEllen Benton AZ (022351) Jody C. Corbett AZ (019718) SHUGHART THOMSON & KILROY, P.C. One Columbus Plaza 3636 N. Central Ave., Ste 1200 Phoenix, AZ 85012 Telephone (602) 650-2000 [email protected] [email protected] [email protected] [email protected] Attorneys for Defendant ABC Supply Company, Inc. THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA BETH D'AGUANNO and FRANKIE TYREE, Plaintiff, vs. CASE NO. CV 03-1408-PHX-DGC DEFENDANT AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC.'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OR COMMENTS BY COUNSEL PERTAINING TO CLAIMS OTHER THAN HOSTILE ENVIRONMENT SEXUAL HARASSMENT (Oral Argument Requested)

AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC., 19 D/B/A ABC SUPPLY COMPANY, INC.,
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Defendant.

Defendant, American Builders & Contractors Supply Co., Inc. d/b/a ABC Supply Company, Inc. (hereinafter "ABC" or "Defendant") by and through undersigned counsel, moves in limine to exclude at trial any evidence or comments by counsel pertaining to claims

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1 other than hostile environment sexual harassment. The court entered summary judgment in 2 favor of Defendant on Plaintiffs' claims of retaliation, wrongful termination or constructive 3 4 5

discharge, and gender discrimination. The only claim left for adjudication in this case is for hostile work environment sexual harassment. Evidence or comments by counsel pertaining

6 to all of the Plaintiffs' other claims should be excluded because it is irrelevant and allowing 7 the evidence or comments at trial would be highly prejudicial to Defendant. Fed.R.Evid. 8 9 10

401-403. To prove sexual harassment, each Plaintiff must show: 1) that she was subjected to

11 verbal or physical conduct of a sexual nature; 2) that the conduct was unwelcome; and, 3) 12 that the conduct was sufficiently severe or pervasive to alter the condition of her employment 13 14 15

and create and abusive environment. Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2004) (emphasis added). Plaintiffs must prove that any harassment took place

16 "because of sex." Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (2001). 17 Indeed, "Title VII does not prohibit all verbal or physical harassment in the workplace; it is 18 19 20 21

directed only at discrimination because of sex." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1002 (1998). Here, Plaintiffs made allegations of a non-sexual nature to support their claims of

22 retaliation, wrongful or constructive termination, and gender discrimination. For example, 23 24 25

Plaintiff Tyree alleged that Regional Manager John Simonelli gave her a bad review, refused to help her with her branch's profit and loss statement, denied her a trainer for her branch,

26 and denied her copies of "Page 4" of her profit and loss statement. She also alleged that she

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1 was working long hours, that Jerry Pearman badmouthed her to vendors and customers, and 2 that he embarked on a campaign to destroy her career. Plaintiff D'Aguanno alleged that she 3 4 5

was treated poorly and terminated because she was a friend of the branch manager, CoPlaintiff, Frankie Tyree, and that she did not deserve to be fired and was not given a chance

6 to prove her abilities. 7 8 9 10

Because of the Court's earlier ruling, the forgoing evidence is no longer relevant to this case. Further, because the allegations supporting those claims were not sexual in nature, they are not relevant to Plaintiffs' hostile work environment sexual harassment claims and

11 are therefore inadmissible at trial. Fed.R.Evid. 401,402. 12 13 14 15

Even if the evidence pertaining to Plaintiffs' other claims had some marginal relevance it should still be excluded because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury. Plaintiffs' complaints about ABC's work environment or business

16 Fed.R.Evid. 403.

17 practices that are not sexual in nature are not probative of whether or not Plaintiffs were 18 19 20

subjected to a sexually hostile environment. Admission of evidence or allowance of comments not related to Plaintiffs' sexual

21 harassment claims is irrelevant and highly prejudicial to Defendant and should therefore be 22 excluded from trial. 23 24 25 26

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RESPECTFULLY SUBMITTED this 19th day of August, 2005. SHUGHART THOMSON & KILROY, P.C.

By: s/ Jody C. Corbett Brian M. Goodwin Jessica Franken JoEllen Benton Jody C. Corbett Attorneys for Defendant ABC SUPPLY COMPANY, INC.

I hereby certify that on August 19, 2005, I electronically transmitted the foregoing document to the U.S. District Court Clerk's Office by using the CM/ECF System for filing and transmittal of a Notice of Electronic filing to the following CM/ECF registrant: MONTOYA JIMENEZ P.A. Attorneys for Plaintiffs ...

17 Stephen G. Montoya, Esq. 19 Phoenix, AZ 85012 20 21

18 3200 N. Central Avenue, Suite 2550

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... ...

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1 I further certify that I caused a copy 2 notice of Electronic filing to be 3 mailed postage prepaid, to the 4 5

of the foregoing document and the

following:

The Honorable David G. Campbell United States District Court Sandra Day O'Connor U.S. Courthouse 6 Suite #623 7 401 W. Washington St., SPC 58 8 Phoenix, AZ 85003-2156
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s/ Jody C. Corbett

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