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 TESTIMONY OF OR REFERENCES TO JANNA CLARK (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 testimony of or references to Janna Clark. Janna Clark's testimony or references to her should be excluded from trial because: 1) it is
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1 irrelevant and therefore inadmissible pursuant to Fed.R.Civ.P. 401 and 402; and, 2) its 2 probative value, if any, is substantially outweighed by unfair prejudice, confusion of the 3 4 5

issues, and misleading the jury. Fed.R.Civ.P. 403. This case involves Plaintiffs Frankie Tyree's and Beth D'Aguanno's claim that they

6 were subjected to a sexually hostile environment while employed at ABC Supply Company's 7 Mesa branch. 8 9 10 11

At trial, Plaintiffs intend to call Janna Clark, a regional manager from

California who was not in any way involved with the Mesa branch. Her testimony is not relevant to whether a hostile environment existed at ABC's Mesa branch. Janna Clark claims that regional manager John Simonelli, who oversaw the Mesa

12 branch, once made a comment, at a meeting in Wisconsin, regarding Plaintiff Tyree's 13 14 15

promotion to branch manager that he didn't care how good she was, he didn't want a female branch manager. Plaintiff Tyree admits that she never knew of this alleged statement until See Deposition of Frankie Tyree, pp. 49-50,

16 after she left her employment with ABC.

17 attached as Exhibit "A." Therefore this comment is irrelevant to whether Plaintiff Tyree was 18 19 20

subjected to a sexually hostile environment during her employment with ABC. Ms. Clark also alleges that she and Mr. Simonelli used to banter back and forth

21 regarding jokes about women in business. With the exception of the one comment about Ms. 22 Tyree, Janna Clark stated that the jokes were between just herself and Mr. Simonelli, they 23 24 25

were directed at Ms. Clark, and she was not bothered by them. See Deposition of Janna Clark, pp. 8-10, attached as Exhibit "B." The jokes were not made in the presence of others,

26 including Plaintiffs Tyree and D'Aguanno and Plaintiffs had no knowledge of them. Id.

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1 Accordingly, testimony regarding these jokes is irrelevant to whether Plaintiffs were 2 subjected to a hostile work environment while they were employed at ABC's Mesa branch. 3 4 5

Janna Clark also alleges that on one occasion she was traveling on a bus across the campus of Texas A&M Institute with male co-employees when some of the males began

6 heckling and making comments about the girls they saw. See Exhibit B, p. 16. Ms. Clark's 7 testimony regarding this isolated incident in Texas is not relevant to the determination of 8 9 10

whether the environment at the Mesa, Arizona branch was hostile. Mooney v. Aramco Serv. Co., et al., 54 F.3d 1207, 1221 (5th Cir. 1995) (Testimony of witness with different

11 supervisors working in different parts of the company too attenuated to be relevant). 12 13 14 15

Even if Janna Clark's testimony 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. If the jury hears testimony

16 regarding comments allegedly made by John Simonelli, they may be misled into improperly 17 considering the comments as part of Plaintiffs' claims of sexually hostile environment. 18 19 20

Moreover, the jury may become angry regarding the alleged comments and draw inferences and make erroneous conclusions based on emotion rather than on the merits of Plaintiffs' In addition, allowing testimony regarding the isolated incident on the bus may

21 claims.

22 mislead the jury into erroneously concluding that because the environment on the bus may 23 24 25 26

have been sexually hostile, that the environment at the Mesa branch must also be hostile.

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1

Because Janna Clark's testimony is irrelevant and its probative value is substantially

2 outweighed by the danger of prejudice to Defendants, her testimony, and any references to 3 4 5 6 7 8 9 10 11 12 13 14

her should be excluded at trial. 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.

15 I electronically transmitted the foregoing 16 document to the U.S. District Court

I hereby certify that on August 19, 2005,

Clerk's Office by using the CM/ECF 17 System for filing and transmittal of a Notice of Electronic filing to the 18 following CM/ECF registrant:
19 20 MONTOYA JIMENEZ P.A. 21

Stephen G. Montoya, Esq.

3200 N. Central Avenue, Suite 2550 Phoenix, AZ 85012 22 Attorneys for Plaintiffs
23 I further certify that I caused a copy 24 of the foregoing document and the

notice of Electronic filing to be 25 mailed postage prepaid, to the following:
26

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1 The Honorable David G. Campbell 2 Sandra Day O'Connor U.S. Courthouse 3 Suite #623

United States District Court

401 W. Washington St., SPC 58 4 Phoenix, AZ 85003-2156
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/s Jody C. Corbett

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Exhibit B Exhibit A

INDEX OF EXHIBITS June 21, 2004 Transcript of Deposition Testimony of Frankie Tyree, pages 49 and 50 July 23, 2004 Transcript of Deposition Testimony of Janna Clark, pages 8, 9, 10, and 16

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