marshall law group, p.c.3620 hacks crossing road, building b-3rd floor memphis, tennessee 38125...

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Mishka L. Marshall (#016641) MARSHALL LAW GROUP, P.C. 777 East Thomas Road, Suite 210 Phoenix, AZ 85014 Telephone: 602/274-7873 Facsimile: 602/274-8207 Email: [email protected] Attorney for Plaintiff Mary H. Beard (TN #020619) (Admitted Pro Hac Vice) FEDERAL EXPRESS CORPORATION 3620 Hacks Crossing Road, Building B-3rd Floor Memphis, Tennessee 38125 Telephone: (901) 434-8061 Facsimile: (901) 434-9279 Email: [email protected] Lori Higuera (#017273) Celeste Helms(#021128) FENNEMORE CRAIG, PC 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Facsimile: (602) 916-5999 Email: [email protected]: [email protected]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

SEAN L. HARGROW,

Plaintiff,

V.

FEDERAL EXPRESS CORPORATION, a Delaware corporation doing business in Arizona; JOHN and JANE DOES I-X; BLACK CORPORATION I-X, WHITE LIMITED LIABILITY COMPANIES I-X,

Case No. CIV 2003-0642 PHX DGC

JOINT PROPOSED PRETRIAL ORDER

Case 2:03-cv-00642-DGC Document 124 Filed 11/02/2006 of 48

mailto:[email protected]

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Defendants.

The following is the joint Proposed Final Pretrial Order to be considered at the

Final Pretrial Conference set for November 21, 2006 at 3:00 p.m.

A. TRIAL COUNSEL FOR THE PARTIES

Plaintiff: Mishka L. Marshall Marshall Law Group, P.C. 777 E. Thomas Rd., Suite 210 Phoenix, Arizona 85014

Telephone: 602/274-7873 Facsimile: 602/274-8207 Email: [email protected]

Defendant: Mary H. Beard (TN #020619)

(Admitted Pro Hac Vice) FEDERAL EXPRESS CORPORATION 3620 Hacks Crossing Road, Building B-3rd Floor Memphis, Tennessee 38125 Telephone: (901) 434-8061 Facsimile: (901) 434-9279 Email: [email protected]

Lori Higuera (#017273) Alec Hillbo (#020185) FENNEMORE CRAIG, PC 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Facsimile: (602) 916-5999

Email: [email protected] Email: [email protected] B. STATEMENT OF JURISDICTION

1. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332, 1337,




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1343, 2201 and 2202, Title VII of the Civil Rights Act of 1964, as amended and 42

U.S.C. § 1981.

2. Jurisdiction is not disputed.

C. STIPULATIONS AND UNCONTESTED FACTS AND LAW

1. The following material facts are admitted by the parties and require no

proof:

a. Sean Hargrow is African American.

b. On October 1996, Federal Express Corporation (“Fedex”)

hired Hargrow as a handler.

c. In February 1997, Hargrow became a permanent part-time

courier for Fedex.

d. In April 2002 Hargrow injured his ankle while working. He

was placed on medical leave.

e. Hargrow filed suit against Defendant on April 4, 2003

alleging violations of Title VII and the ADA.

f. On May 12, 2003 Defendant terminated Hargrow’s

employment.

2. The following material facts, although not admitted, will not be contested at

trial by evidence to the contrary: None.

3. The following issues of law are uncontested and stipulated to by the parties:

None.

D. CONTESTED ISSUES OF FACT AND LAW

The following are the material issues of fact to be tried and decided:

Issue # 1: Whether Sean Hargrow engaged in protected activity.

Plaintiff Contends: Plaintiff’s internal complaints to Defendant as well as the three

EEOC charges he filed and the lawsuit he filed against Defendant all constitute protected

activity.


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Defendant Contends: The only protected activity at issue is Plaintiff’s filing of a

federal lawsuit on April 4, 2003.

Issue # 2: Whether Sean Hargrow suffered an adverse employment action.

Plaintiff Contends: The formal and informal discipline he received, the unwarranted

scrutiny of his work, the unfair assignment of overtime, Defendant’s refusal to allow

Sean Hargrow to work in a job that accommodated his physical limitations and the

termination of his employment constitute adverse employment action.

Defendant Contends: The only adverse employment action at issue is Plaintiff’s

discharge from Federal Express Corporation on May 12, 2003.

Issue # 3: Whether there is a causal link between the protected activity and the

adverse employment action.

Plaintiff Contends: The temporal proximity between Sean Hargrow’s protected activity

and the adverse employment action taken against him demonstrate a causal link between

his protected activity and the adverse employment action. Furthermore, the disparate

treatment Hargrow received compared to other similarly situated couriers further

demonstrates causation.

Defendant Contends: Plaintiff cannot prove a causal connection between the

protected activity (i.e., filing the federal lawsuit on April 4, 2003) and the adverse

employment action (his discharge on May 12, 2003) because Plaintiff lacks evidence that

the decisionmaker had knowledge of the protected activity.

Issue # 4: If Defendant retaliated against Sean Hargrow, the amount of damages

to which Hargrow is entitled.

Plaintiff Contends: Sean Hargrow has been damaged in the form of past and future wage

loss, the value of benefits, financial losses, mental and emotional distress and other

incidental damages.

Defendant Contends: It is Plaintiff’s burden to prove damages. Such amounts

cannot be based on speculation, but should reflect specific detailed calculations.


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Defendant contends that Plaintiff has not been damaged by its conduct.

Issue # 5: Whether there are legitimate, non-retaliatory reasons for Defendant’s

actions?

Defendant Contends: Defendant discharged Plaintiff pursuant to its Medical Leave

of Absence Policy.

Plaintiff Contends: Defendant has not articulated non-retaliatory reasons for its actions.

Defendant’s Issue #6: Whether Defendant had an honest, good faith belief

regarding the reasons for Plaintiff’s discharge.

Plaintiff Contends: Defendant’s issue misstates the law as whether it had an “honest,

good faith belief” that regarding its reasons for discharging Plaintiff. Plaintiff contends

that the actions Defendant took against Plaintiff violated Title VII and 42. U.S.C. § 1981

and that the actions taken were intentional.

Defendant Contends: Defendant contends that it acted in good faith with respect to

Plaintiff, which was shown especially by Defendant granting Plaintiff an extension of his

leave of absence to assist him in finding employment, unlike other employees under the

HCMP program under Ms. Montgomery’s tenure.

Issue #7: Whether Plaintiff’s protected activity was a determining factor in the

decision to discharge Plaintiff?

Plaintiff Contends: Plaintiff asserts that his protected activity was a motivating factor in

Defendant’s decision to discharge Plaintiff. Plaintiff lodged numerous internal and

external EEOC complaints of discrimination against Defendant prior to his discharge and

believes those complaints were either the sole or a motivating factor in his discharge.

Defendant Contends: Defendant contends that the filing of the federal lawsuit was not a


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factor at all.

Issue #8: Whether Defendant’s articulated legitimate, nondiscriminatory

reasons are pretext for retaliation.

Plaintiff Contends: Plaintiff contends that his retaliation claims are not limited to

Defendant’s decision to terminate his employment a little more than a month after he

filed suit against Defendant, but also includes the discipline issued for the refueling error,

the package pickup, assignment of overtime, and approval of time off. Plaintiff further

contends that the actions taken by management officials who issued discipline and made

decisions regarding assignment of overtime and approval of time off retaliated against

Plaintiff. Plaintiff also contends that Defendant has not articulated non-retaliatory

reasons for its actions in light of the adverse employment action. Even if Defendant

produces sufficient evidence to support its nondiscriminatory explanation, Plaintiff may

still prevail by proving that defendant’s stated reason was pretext or unworthy of

credence.

Defendant Contends: Defendant contends that Plaintiff was discharged pursuant to a bona

fide policy. Additionally, there is no evidence of any retaliatory animus on the part of Ms.

Montgomery, the decision-maker with respect to the application of the policy, nor is there

any evidence that Ms. Montgomery did not honestly believe that termination consistent

with the policy was proper.

Defendant’s Issue #9: Whether Plaintiff’s own conduct contributed to his damages.

Plaintiff Contends: Plaintiff contends that he made diligent efforts to follow Defendant’s

policies and procedures while employed. Plaintiff further contends that it was his

compliance with Defendant’s policies, such as the GFTP, that ultimately led Defendant to

retaliate against Plaintiff and terminate his employment. Plaintiff also contends that

while on medical leave, he made diligent efforts to secure a position that he could

perform given his physical limitations. Those efforts continued after Defendant

terminated Plaintiff’s employment.


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Defendant Contends: Defendant avers that Plaintiff’s conduct contributed to his damages

as he did not adequately avail himself of the avenues available to assist him in seeking

other positions during his medical leave of absence.

Issue #10: Whether Plaintiff adequately mitigated his damages.

Plaintiff Contends: Plaintiff contends that he made every effort to mitigate his damages.

Defendant Contends: Defendant contends that Plaintiff did not avail himself of all of the

employment opportunities that he could have based on his past employment experience.

The following are the issues of law to be determined:

Issue #1: Whether Plaintiff’s retaliation claims are considered unlawful

discrimination.

Plaintiff Contends: Plaintiff’s claims for retaliation are indistinguishable from the

discrimination prohibited by Title VII and 42 U.S.C. § 1981 because it was the

discriminatory treatment about which Plaintiff complained that led to the retaliation.

Defendant Contends: Plaintiff’s claim of retaliation is separate and distinct from any

claim for alleged discrimination. Under the applicable law, a claim of retaliation is

separate and distinct from any claim of discrimination.

Issue #2: Whether Plaintiff can establish a prima facie case of retaliation under Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.§§

Plaintiff Contends: Plaintiff can establish that he engaged in a protected activity,

suffered adverse employment actions, there is a causal link between the protected activity

and the adverse employment actions, and Plaintiff was damaged.

Defendant Contends: Defendant contends that Plaintiff cannot prove the third element of

a prima facie case, i.e., whether there exists a causal link between the adverse

employment action and the protected activity.


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Issue #3: Whether Plaintiff can establish a prima facie case of retaliation under

the Civil Rights Act of 1991, as amended, 42 U.S.C.§ 1981.

Plaintiff Contends: Plaintiff can establish that he engaged in a protected activity,

suffered adverse employment actions, there is a causal link between the protected activity

and the adverse employment actions, and Plaintiff was damaged.

Defendant Contends: Defendant contends that Plaintiff cannot prove the third element of

a prima facie case, i.e., whether there exists a causal link between the adverse

employment action and the protected activity.

Issue #4: Whether Plaintiff is entitled to punitive damages.

Plaintiff Contends: Plaintiff contends that Defendant’s conduct demonstrates that it

acted with reckless indifference, malice or will. Punitive damages are appropriate in this

case.

Defendant Contends: Defendant has not acted in reckless indifference, malice, or ill-will

with respect to Plaintiff and thus, Plaintiff’s claim for punitive damages is barred.

Issue # 5: If Defendant retaliated against Sean Hargrow, what type of damages is he

entitled to?

Plaintiff Contends: Plaintiff is entitled to past and future wage loss, the value of benefits,

financial losses, mental and emotional distress, other incidental damages as well as

punitive damages.

Defendant Contends: Plaintiff is only entitled to those damages lawfully available under

Title VII and/or Section §1981.

E. LIST OF WITNESSES

Each party understands that it is responsible for ensuring that the witnesses it

wishes to call to testify are subpoenaed. Each party further understands that any witness


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a party wishes to call shall be listed on that party’s list of witnesses; the party cannot rely

on the witness having been listed or subpoenaed by another party.

PLAINTIFF:

(a) Plaintiff shall call the following witnesses at trial:

1. Sean Hargrow, c/o counsel. Mr. Hargrow is expected to testify to all issues

concerning his employment and damages.

2. Cheryl Montgomery Wilson, 2146 W. Isabella Avenue, Unit 148, Mesa,

AZ 85202. (Fact Witness) Ms. Wilson is expected to testify about Plaintiff’s complaints

of discrimination, Defendant’s responses to same and other issues concerning Plaintiff’s

employment.

3. Roxanne Ruiz, former senior HR rep, 4546 E. Los Alamos Street, Higley,

AZ 85236. (Fact Witness) Ms. Wilson is expected to testify about Plaintiff’s complaints

of discrimination, Defendant’s responses to same and other issues concerning Plaintiff’s

employment.

4. Ronald Bennett, c/o Federal Express/Fennemore Craig. (Fact Witness) Mr.

Bennett is expected to testify about his refueling error(s) and any action taken by

Defendant in response to the incident(s).

5. Tim Kelly, retired managing director, 4373 S. Marble, Gilbert, AZ 85296.

(Fact Witness) Mr. Kelly is expected to testify about Plaintiff’s complaints of

discrimination and retaliation, Defendant’s responses to same and other issues concerning

Plaintiff’s employment. Mr. Kelly may also testify about Defendant’s policies and

procedures regarding refueling errors, complaints of discrimination and the GFTP and

other facts related to Plaintiff’s claims.

6. Kevin McHugh, Senior Manager, Station Operations/AA, Station

Operations, Scottsdale, 1375 N. Hayden Rd., Scottsdale, AZ 85257. (Fact Witness) Mr.

McHugh is expected to testify about Plaintiff’s complaints of discrimination and


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retaliation, the GFTP, assignment of overtime and other facts related to Plaintiff’s claims.

7. Don Fitzgerald, Operations Manager, Station Operations/AA, Station

Operations, Scottsdale, 1375 N. Hayden Rd., Scottsdale, AZ 85257. (Fact Witness) Mr.

Fitzgerald is expected to testify about Plaintiff’s employment with Defendant, Plaintiff’s

complaints of discrimination and retaliation, the GFTP and other facts related to

Plaintiff’s claims.

(b) Plaintiff may call the following witnesses at trial:

1. Cindy Alfonso, Manager, Human Resources, HR Services – DGO Western,

1640 S. Stapley, Suite 101, Mesa, AZ 85204. (Fact Witness) Ms. Alfonso may testify

about facts involving Plaintiff’s claims.

2. John Carroll, Senior Manager, Customer Service Center, Phoenix Call

Center, 2602 S. 47th St., Suite 101, Phoenix, AZ 85034. (Fact Witness) Mr. Carroll

may testify about Defendant’s call center training and operations, Plaintiff’s request for

admission into the call center and Defendant’s refusal to honor Plaintiff’s request. Mr.

Carroll may also testify regarding other facts related to Plaintiff’s claims.

3. Tim Christensen, c/o Federal Express/Fennemore Craig. (Fact Witness) Mr.

Christensen may testify about facts related to Plaintiff’s claims.

4. Keith Bergen, c/o Federal Express/Fennemore Craig. (Fact Witness) Mr.

Bergen may testify about Defendant granting his request for time off in violation of

company policy and other information regarding Plaintiff’s claims.

5. Tim Tays, PhD. 15849 N. 71st St., Scottsdale, Az 85254. (Fact Witness)

Dr. Tays may testify about Plaintiff’s treatment for depression and other symptoms

brought on by Defendant’s conduct.

6. Sherry L. Burke, 847 S. Ash St., Gilbert, Az 85233. (Fact Witness) Ms.

Burke may testify about Plaintiff’s treatment for depression and other symptoms brought

on by Defendant’s conduct.

7. Dr. Peter Mitchell, Baltimore Surgical Center, 2222 E. Highland Ave.,


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Suite 425, Phoenix, Az 85016. (Fact Witness) Dr. Mitchell may testify regarding

Plaintiff’s work-related injury, treatment for same and prognosis.

8. Dr. Lewis Freed, East Valley Foot & Ankle Specialists, Power Road

Medical Center, 215 S. Power Rd., Suite 205, Mesa, Az 85206. (Fact Witness) Dr.

Freed may testify regarding Plaintiff’s work-related injury, treatment for same and

prognosis.

9. Paul Nelson, PT, Physiotherapy Associates, 655 S. Dobson Blvd., Suite B-

111, Chandler, Az 85224. (Fact Witness) Mr. Nelson may testify regarding Plaintiff’s

work-related injury, treatment for same and prognosis.

10. Pam Williams, MSPT, Strength Training, Inc., 1941 W. Guadaloupe Rd.,

Suite 106, Mesa, Az. 85202. (Fact Witness) Ms. Williams may have information

regarding Plaintiff’s work-related injury, treatment for same and prognosis.

11. Dr. Randall R. Hardison, 604 W. Warner Rd., Suite C-1, Chandler, Az

85225. (Fact Witness) Dr. Hardison may have information regarding Plaintiff’s work-

related injury, treatment for same and prognosis.

12. Any witness needed to establish foundation.

13. Any witness listed by Defendant.

14. Rebuttal or impeachment witnesses.

(c) Plaintiff Is Unlikely to Call the Following Witnesses

1. Kevin Feig, MD, Concentra Medical Center, 950 W. Southern Ave.,

Tempe, Arizona 85282 (Fact Witness). Dr. Feig may have information regarding

Plaintiff’s work-related injury, treatment for same and prognosis.

2. Maura Murphy, Address and phone number unknown. (Fact Witness).

Maura Murphy was an employee of Defendant’s during the relevant time period and

may have information regarding the assignment of overtime hours and other facts

related to Plaintiff’s claims.

3. Bill Jones, Address and phone number unknown. (Fact Witness)Bill Jones


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was an employee of Defendant’s during the relevant time period and may have

information regarding Defendant’s discrimination and retaliation against Plaintiff.

DEFENDANT:

A. Defendant will call: 1. Cheryl Montgomery Wilson, (retired HCMP manager) 2146 W. Isabella Avenue, Unit 148, Mesa, AZ 85202. Ms. Wilson is expected to testify regarding Defendant’s Medical Leave of Absence Policy, HCMP program, Plaintiff’s medical leave of absence, and Plaintiff’s discharge (Fact Witness). B. Defendant may call: 2. Kevin T. McHugh, Senior Manager, Station Operations/AA, Station Operations, Scottsdale, 1375 N. Hayden Rd., Scottsdale, AZ 85257. Mr. McHugh may testify regarding Plaintiff’s employment history and medical leave of absence (Fact Witness) 3. Roxanne Ruiz, former senior HR rep, 4546 E. Los Alamos Street, Higley, AZ 85236 Ms. Ruiz may testify regarding Plaintiff’s employment history, medical leave of absence, and discharge (Fact Witness) 4. Timothy J. Kelly, retired managing director, 4373 S. Marble, Gilbert, AZ 85296. Mr. Kelly may testify regarding Plaintiff’s employment history, leave of absence, and discharge (Fact Witness) 5. John A. Carroll, Jr. (“Jack”), Senior Manager, Customer Service Center, Phoenix Call Center, 2602 S. 47th St., Suite 101, Phoenix, AZ 85034. Mr. Carroll may testify regarding the qualifications for applicants for Phoenix call center positions (Fact Witness). 6 Mary H. Beard, Senior Attorney, Federal Express Corporation, 3620 Hacks Cross Road, Memphis, TN 38125. Ms. Beard may testify regarding her initial contact with Ms. Montgomery Wilson (Fact Witness). 7 Donald Fitzgerald, Operations Manager, Station Operations/AA, Station Operations, Scottsdale, 1375 N. Hayden Rd., Scottsdale, AZ 85257 Mr. Fitzgerald may testify regarding Plaintiff’s employment history and medical leave of absence (Fact Witness). 8 Denise Micale, RN, MS, CCM, Intracorp Field Case Management, Telephone number: 1-480-585-9402. Ms. Micale may testify regarding


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Plaintiff’s medical leave of absence (Fact Witness). 9. Michelle Bruno, Claims Examiner II, Sedgwick Claims Management Services, Inc., 1225 17th Street, Suite 2100, Denver, Colorado 80202. Ms. Bruno may testify regarding Plaintiff’s medical leave of absence (Fact Witness). 10. Carmen Cooley, Claims Administrator, FedEx Express, 3620 Hacks Cross Road, Building B, 2nd Floor, Memphis, TN 38125. Ms. Cooley may testify regarding Plaintiff’s medical leave of absence (Fact Witness). 11. Jennifer Ramos, HCMP advisor, FedEx Express, 3660 Hacks Cross Road, Bldg F, 3rd Floor, Memphis, TN 38125, Telephone number: 1-901-434-6090. Ms. Ramos may testify regarding Plaintiff’s medical leave of absence and extension of leave (Fact Witness). 12. Sean Hargrow, Plaintiff 13. Any witness listed by Plaintiff. 14. Any witness for impeachment or rebuttal purposes. C. Defendant will unlikely call:

15. Deborah Reed-Garcia, Manager Human Resources, FedEx Express, 2100 Main St. Suite # 330, Huntington Beach, CA 926487 (Fact Witness).

16. Eddie Arredondo, (Not-Defined) Managing Director, 200 Regent Blvd.,

Bldg. C, 2nd Floor, Irving, TX 75063-0000 (Fact Witness). 17. Suzann Ray, Former Sr. HR Support Control Assistant V, FedEx Express,

3660 Hack Cross Road, Bldg F, 3rd Floor, Memphis, TN 38125 (Fact Witness). 18. Bobbie Temple, Former Human Resources Representative, FedEx

Express, 3660 Hacks Cross Road, Building F, 3rd Floor, Memphis, TN 38125 (Fact Witness).

19. Dawn Melillo, Sr. Human Resources Representative, FedEx Express, HR

Services - DGO Western, 10500 NE 8th St, 20th Floor Suite 2000, Bellevue, WA 98004 (Fact Witness)

20. Dave Crutchfield, Sr. Human Resources Representative, FedEx Express,

HR Services - DGO Western, 7090 S Union Park Ave, Suite 600, Midvale, UT 84047 (Fact Witness).

21. Renee Mannon, Former Sr. Manager Station Operations, FedEx Express,


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200 Regent Blvd., Bldg. C, 2nd Floor, Irving, TX 75063-0000 (Fact Witness). 22. Mary (Ann) Richerson, Retired, Sr. HR Corporate Representative, FedEx

Express, 3660 Hacks Cross Road, Bldg F, 3rd Floor, Memphis, TN 38125 (Fact Witness). 23. Curt Johnson, Sr. Human Resources Representative, FedEx Express, 2121

N 85th E Ave, Tulsa, OK 74115, Telephone number: 1-918-831-8047 (Fact Witness). 24. Charles E. (Chuck) Smith, Manager Station Operations, FedEx Express,

1375 N. Hayden Road, Scottsdale, AZ 85257-0000 (Fact Witness). 25.Paola High, Former Sr. Human Resources Corporate Representative, FedEx

Express, Hacks Cross Road, Bldg F, 3rd Floor, Memphis, TN 38125 (Fact Witness) 26. Carolyn Roney, Retired HR Manager, FedEx Express, 200 Regent Blvd.,

Bldg. C, 2nd Floor, Irving, TX 75063-0000 (Fact Witness) 27. Beverly Koslow, Retired Sr. Safety Spec/Field, FedEx Express, 1640 S.

Stapley, Suite 101, Mesa, AZ 85204 (Fact Witness). 28. Peter Corriveau, Retired Human Resources Representative, FedEx

Express, 3660 Hacks Cross Road, Bldg. F, 3rd Floor, Memphis, TN 38125 (Fact Witness).

29. Robert (Bobby) Saiz, Sr. Ops Manager, FedEx Express, 1881 Main Street,

Dunedin, FL 3469 (Fact Witness).

30. Cindy L. Alfonso, Manager, Human Resources, HR Services – DGO Western, 1640 S. Stapley, Suite 101, Mesa, AZ 85204 (Fact Witness).

F. LIST OF EXHIBITS

Each party hereby acknowledges by signing this joint Proposed Final Pretrial Order

that any objections not specifically raised herein are waived.

The parties stipulate to the following exhibits:

1. Job offer Letter from Fedex to Hargrow dated 10/28/1996. 3-33


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2. Statement of Policy dated 6/1/2002. Hargrow 000057

3. Letter from Cheryl Montgomery to Sean Hargrow dated 1/13/2003 regarding terminating his employment. 4-206 - 207

4. Email from Cheryl Montgomery to Kevin McHugh dated 8/6/2002

regarding Sean Hargrow’s FML. 78-21

5. Email from Kevin McHugh to Cheryl Montgomery dated 8/7/2002 regarding replacing Sean Hargrow. 78-22

6. Email from Kevin McHugh to Cheryl Montgomery dated 8/8/2002

regarding replacing Sean Hargrow. 78-23

7. Email from Carmen Cooley to Cheryl Montgomery dated 1/27/2003. 4-194

8. Employee Communication Record. 4-192- 193 9. Courier/DOT job description. 9-93-94

10. Employer’s first Report of Injury dated 4/11/2002. 3-246 - 248

11. Management Practices and the Law. 35-1 - 46

Plaintiff’s Exhibits:

1. Bravo Zulu Award dated 8/17/1998 issued to Sean Hargrow 3-155.

Objection: Relevance, unfairly prejudicial, confusion of the issues,

misleading the jury.

2. Bravo Zulu Award dated 11/18/1998 issued to Sean Hargrow 3-153 – 54.





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Objection: Relevance, unfairly prejudicial, confusion of the issues, and



Objection: Relevance, unfairly prejudicial.

5. Warning Letter dated 7/6/2001 regarding package pick – up. Hargrow 000028



6. Letter from Peter Corriveau to Sean Hargrow dated 8/8/2001 regarding receipt of GFTP

packet and attached documents 50-38 – 51.



7. Documents submitted as part of GFTP regarding package pickup. Hargrow 000033 - 43



8. GFT Complaint regarding package pickup and discrimination 8-1 - 8-23.



9. Letter from Tim Kelly to Sean Hargrow dated 9/17/2001 regarding complaint of

discrimination Hargrow 000030.




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10. Letter from Tim Kelly to Sean Hargrow dated 9/25/2001 upholding Warning Letter 8-87.



11. Performance Reminder dated 1/2/2002 regarding refueling error Hargrow 000045.



12. GFTP Complaint regarding refueling error 8-121 – 8-124.



13. Email from Jay Walker to Don Fitzgerald dated 1/23/2002 regarding refueling error.

Hargrow 000044



14. Step 1 of GFT Complaint regarding refueling error Hargrow 000046-47.



15. Email from Dave Crutchfield dated 2/11/2002 regarding refueling error.



16. Email from Tim Kelly to Dave Crutchfield dated 2/11/2002 upholding discipline.

4-23


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17. Letter from Tim Kelly to Sean Hargrow dated 2/12/2002 upholding discipline

Hargrow 000050.



18. Management Summary prepared by Tim Kelly dated 2/13/2002 8-166 – 167.



19. GFTP Follow - up Sheet dated 2/14/2002 4-29.



20. GFTP Complaint Status 4-30.



21. Letter from Adam Psarianos to Sean Hargrow dated 2/26/2002 regarding receipt

of Step II of the GFT process Hargrow 000051.



22. Letter from Adam Psarianos to Sean Hargrow dated 2/28/2002 upholding discipline

Hargrow 000052.


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23. Step 3 GFTP Tracking Form dated 3/6/202 4-28.



24. Email from Don Fitzgerald to Bobbie Temple dated 3/8/2002 requesting

information about cost of refueling error 78-6.



25. Letter from Carol Mitchell to Sean Hargrow dated 3/12/2002 regarding Appeals

Board decision. Hargrow 000053



26. GFTP Complaint Executive Summary 4-4 – 5.



27. GFTP Packet 4-33 – 4-57.




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28. Letter from Diane LaMonica dated 12/23/1997 regarding refueling error 21-94.

Objection: Relevance, unfairly prejudicial, confusion of issues,

misleading the jury, duplicative authentication and hearsay.

29. Inter - Office Memorandum dated 12/29/1997 regarding Diane LaMonica’s GFTP

on the refueling error 21-98.


misleading the jury, duplicative authentication and hearsay.

30. Letter from Cesar Valenzuela to Diane LaMonica dated 12/31/1997 reversing her

discipline 21-99.


misleading the jury, duplicative, authentication and hearsay.

31. Inter - Office Memorandum dated 1/6/1997 regarding removal of warning letter to

D. Lamonica 21-97.



32. Warning Letter regarding refueling to Patrick Kenney dated 2/1/2001 60-9 - 10.



33. Warning Letter regarding refueling to Mona Bevan dated 2/1/2001 60-9 - 12.


misleading the jury, authentication and hearsay.


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34. Letter of Warning issued to Scott Williams dated 11/15/2001 regarding refueling

error 60-13–14.



35. Performance Reminder issued to Trish Forester dated 3/13/2002 regarding

refueling error 60-15–16.



36. Warning Letter issued to Kathy Hunt dated 2/21/2002 regarding refueling error

60-17– 18.



37. Warning Letter issued to Robert Sawyer dated 3/12/2002 regarding refueling

error 60-19 – 20.



38. Warning Letter regarding refueling to Pete Michalenko dated 6/6/2002 60-21.



39. Warning Letter regarding refueling to Michelle Forbis dated 7/10/2002 60-24.



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40. Warning Letter regarding refueling to Forrest Fuller dated 8/8/2002 60-25.



41. Warning Letter regarding refueling to Spencer Rosas dated 10/9/2002 60-28.



42. Warning Letter regarding refueling to James Camuso dated 3/25/2003 60-33.



43. Warning Letter regarding refueling to James McClellan dated 9/19/2003 60-34 –

35.



44. Warning Letter regarding refueling to Matt Young dated 11/4/2003 60-36 – 37.



45. Warning Letter regarding refueling to Kristine McMackin dated 3/27/2004 60-

38.




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46. Warning Letter regarding refueling to Michael Decaires dated 5/5/2004 60-39.



47. Warning Letter regarding refueling to Tom Bianco dated 7/8/2004 60-42 – 43.



48. Reminder Letter regarding refueling to Andi Cunningham dated 1/16/2004 60-

50.



49. Email from Dave Crutchfield to Kevin McHugh dated 7/9/2002 regarding EEO

investigation 78-20.



50. Emails exchanged between Kevin McHugh and Dave Crutchfield dated

7/12/2002 regarding day off request records 78-15 – 17.



51. Email from Kevin McHugh to Dave Crutchfield dated 7/12/2002 regarding

Keith Bergen 78-13 – 14.



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52. Letter from Keith Bergen to Kevin McHugh dated 3/26/2002 requesting time off

78-4.



53. Inter - Office Memorandum dated 4/4/2002 from Kevin McHugh to Keith

Bergen regarding time off request 78-3.



54. Letter from Sean Hargrow to EEOC dated 5/16/2002 regarding discrimination

50-56 – 58.


misleading the jury, and hearsay.

55. Tim Kelly One on One Meeting dated 5/21/2002 52-706 – 708.

Objection: Relevance, confusion of issues, misleading the jury, and

hearsay.

56. EEOC Charge of Discrimination, 350A202158, dated 5/24/2002 50-21.



57. EEOC Intake Interview Notes of meeting with Sean Hargrow dated 5/24/2002

50-54–55.


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58. Letter written by Sean Hargrow dated 5/28/2002 and provided to EEOC with

charge No. 350A202158 50-23 – 25.



59. Notice of Charge of Discrimination dated 6/2/2002 for charge no. 350A202158

50-19.



60. Right to Sue Letter for charge no. 350A202158 dated 6/19/2002 50-17.



61. EEOC Charge of Discrimination, 350A203126, dated 9/16/2002 50-71.



62. EEOC Intake Questionnaire dated 9/16/2002 Hargrow 000115-118.



63. EEOC Intake Notes dated 9/16/2002 50-104.



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64. Letter from Ann Richerson to EEOC dated 10/22/2002 regarding charge no

350A203126 Hargrow 000123.



65. Emails exchanged between Roxanne Ruiz and Kevin McHugh dated 10/30/2002

and 10/31/2002 regarding Hargrow’s complaints of discrimination 78-48.


66. Letter from Ann Richerson to EEOC regarding Defendant’s position dated

12/6/2002 50-94–99.



67. Cover letter and Right to Sue from EEOC to Sean Hargrow for Charge No.

350a203126 dated 1/8/2003. Hargrow 00129-130


misleading the jury, authentication, and hearsay.

68. Request for Extension of Duration Date 4-188 - 191.

Objection: Incomplete.

69. Letter from Cheryl Montgomery to Sean Hargrow dated 5/12/2003 terminating

his employment 4-124 – 125.

Objection: Based on the Bates numbers indicated, Defendant cannot


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identify the document named. The Bates numbers indicated here reflect documents

that are included in Defendant’s privilege log.

70. EEOC Charge of Discrimination, 350 - 2003 - 84312, dated 8/11/2003 50-162.



71. EEOC Intake Questionnaire dated 8/11/2003 Hargrow 000101-109.



72. ADA Questionnaire 50-181–186.



73. Notice of charge of discrimination, charge no. 350 - 2003 - 84312, dated

8/13/2003 50-160.



74. EEOC dismissal letter and Notice of Right to Sue dated 9/23/2003 50-158–159.



75. Letter from EEOC to Sean Hargrow regarding charge no. 350 - 2003 - 84312

dated 5/5/2004 50-150.



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76. Robert Hollenbeck Employee LOA History Screen 53-4.



77. Robert Hollenbeck TRW Assignment dated 2/15/2005 53-5.



78. Email stream between Kevin McHugh , Pam Paroubek and Gail Davis dated

10/19/2004 and 10/20/2004 53-9.



79. HCMP Reasonable Accommodation Request Form for Robert Hollenbeck dated

10/1/2004 53-14.



80. Letter from Gail Davis to Robert Hollenbeck regarding HCMP form dated

9/28/2004 53-16 – 17.



81. Letter from Gail Davis to Robert Hollenbeck and attachments regarding medical

leave of absence policy dated 10/4/2004 53-18 – 25.


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82. Inter - Office Memorandum dated 5/21/2002 from Tim Christensen to Jacob

Weinlein regarding suspension with pay for DUI 61-29.



83. Letter from Tim Christensen to Jacob Weinlein dated 5/22/2001 regarding

investigation into DUI charges 61-30.



84. Offer letter from Tim Christensen to Jacob Weinlein dated 5/22/2001 regarding

DUI 61 - 31.



85. Change of Employment Status for Carl Henderson dated 8/30/2002 regarding

DUI 61-26.



86. Inter - Office Memorandum dated 9/6/2002 from Kevin McHugh to Tim Kelly

regarding suspension of Carl Henderson regarding DUI 61-27.



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87. Arizona Traffic Ticket and Complaint issued to Rick Halquist dated 5/31/03 for

DUI.



88. Investigative suspension of Rick Halquist dated 6/2/2002 regarding DUI 61-35.



89. Employment Status Change of Ronald Gaona regarding DUI dated 3/19/2004

61-38.



90. Change of Employment Status for Danny Musick regarding DUI dated

6/21/2004 61-39.



91. Change of Employment Status for Maria Bux dated 7/1/2004 27-439.



92. Email dated 7/1/2004 from Gail Davis to Roxanne Ruiz regarding sending

JCATS and Career Ops to Maria Bux 61-19.


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93. Offer Letter to Maria Bux dated 7/13/2004 27-438.



94. Letter of Suspension issued to Maria Bux dated 6/29/2004 27-442.



95. Change of employment status for James Smith regarding DUI dated 10/27/2004

61-33.



96. Letter from Noreen Wesolek to Maria Bux dated 8/2/2004 27-435–436.



97. Tim Kelly Fiscal Year 2000 Performance Evaluation 52-179–189.



98. Offer letter to Tim Kelly for MD position 52-678.




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99. Tim Kelly Fiscal Year 2002 Performance Evaluation 52-367 – 378.



100. Tim Kelly Fiscal Year 2003 Performance Evaluation 52-354 – 361.



101. Tim Kelly Letter of Expectation dated 4/3/2002 52-703 – 705.



102. Tim Kelly Performance Review dated 6/10/2003 (CONFIDENTIAL). 52-655 –

663.



103. Inter - Office Memorandum from Kelly Romito to Thomas O’Hearn regarding

separation agreement of Tim Kelly (CONFIDENTIAL) 52-617.



104. Email from Kevin McHugh to Don Fitzgerald regarding customer complaint

about Ron Bennett dated 1/4/2005. 24-133



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105. Statement of Ron Bennett dated 1/4/2005 regarding customer complaint 24-134.



106. Letter of Warning dated 2/11/2003 issued to Ron Bennett 24-136 – 137.



107. Warning Letter dated 12/14/2000 issued to Ron Bennett 24-151 – 152.



108. Overtime Sign Up Sheets 39-1 – 73.



109. Individual Performance and Contribution Discussion Form Management for

Kevin McHugh dated 7/18/2003 31–1 – 15.




Kevin McHugh dated 6/14/2002 31-16 – 22.




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Kevin McHugh dated 6/22/2001 31-26 – 31.



112. Employee History Information Screen 1-5 – 12.

Objection: Relevance.

113. Employee Safety Award History 1-30.

Objection: Relevance.

114. GFTP Prism document for Kevin McHugh 30-71 – 72.



115. GFTP Procedure/EEOC Complaint Process Hargrow 000013-19.



116. GFTP Procedure/EEOC Complaint Process dated 6/20/2003 35-67 – 74.



117. 2 - 5 Acceptable Conduct policy dated 2/1//2003 24-139 – 149.


118. 2 - 5 Acceptable Conduct policy dated 5/25/2003 35-57 – 66.



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119. 4 - 3.3 Fueling Operations Maintenance 38-1 – 2.



120. 8 - 3 Fueling 38-3 – 4.



121. 5 - 15 External EEO Complaint Investigation dated 6/20/202 35-78 –81.



122. 5 - 55 Anti - Harassment policy dated 6/15/2003 35- 75 – 77.



123. Organization Chart dated 3/28/2005 40-1.



124. Excerpts from The People Manual dated 11/11/2001 Hargrow 000003-7.

Objection: Incomplete, relevance, unfairly prejudicial.

125. People Manual dated 5/2002 PM0503C001 – 18.




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126. Federal Express (USA) Personnel Policy and Procedure Manual dated 5/2003

PM0503C006-PM0503P403.



127. Medical records Strength Training 43-1 - 25.



128. Medical records from R. Hardison 44-1– 11.



129. Medical records from Physiotherapy Associates 46-1 – 97.



130. Medical records from Tree of Life Counseling Center (Sherry Burk) 47-5 - 15.



131. Medical records from Dr. Peter Mitchell 48-1 – 83.



132. Medical records from Dr. Lewis Freed 49-1 – 46.



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133. Sean Hargrow’s damages documents, including W-2’s, out of pocket medical

expenses, job search expenses and other relevant damages documents.

Objection: Relevance, cumulative, lack of specificity, unfairly

prejudicial, confusion of the issues, misleading the jury, authentication,

hearsay.

134. Defendant’s Interrogatory Responses (Including Supplemental Responses).

Objection: Relevance, duplicative, cumulative, unduly prejudicial,

confusion of the issues, misleading the jury, hearsay, authentication, lack of

specificity.

135. Defendant’s Responses to Plaintiff’s Requests for Production of Documents

(including supplemental responses).

Objection: Relevance, duplicative, cumulative, unduly prejudicial,

confusion of the issues, misleading the jury, hearsay, authentication, lack of

specificity.

136. Call Center File. 80-1 – 22

Objection: Relevance, cumulative, unduly prejudicial, confusion of the

issues, misleading the jury, hearsay, lack of specificity.

137. McHugh GFT file. 79-1 – 122

Objection: Relevance, duplicative, cumulative, unduly prejudicial, confusion

of the issues, misleading the jury, hearsay, authentication, lack of specificity.


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138. Overtime sign-up sheets. 39-1 - 50

Objection: Relevance, duplicative, cumulative, unduly prejudicial, confusion

of the issues, misleading the jury, hearsay, authentication, lack of specificity.

Defendant’s Exhibits:

1. Application for Employment dated May 29, 1996 Bates No. 3-75 to 3-84 Plaintiff’s Objections: FRE 601 (Foundation), FRE 801 (Hearsay) 2. Job Offer Letter to Sean Hargrow dated October 28, 1996 Bates No. 3-33 3. Federal Express Employee Handbook acknowledgement dated March 10, 1997 Bates No. 2-29 Plaintiff’s Objections: FRE 601 (Foundation), FRE 801 (Hearsay) 4. Ground Operations Planning and Support dated February 6, 2002 Bates No. 3-324 Plaintiff’s Objections: FRE 601 (Foundation), FRE 801 (Hearsay) 5. Federal Express Employee Handbook acknowledgment dated February 14, 2002 Bates No. 2-7

Plaintiff’s Objections: FRE 601 (Foundation), FRE 801 (Hearsay)

6. Email between Donald Fitzgerald and Cheryl Montgomery dated April 9, 2002 Re: Sean Hargrow Bates No. 12-93

Plaintiff’s Objections: FRE 601 (Foundation), FRE 801 (Hearsay), FRE 901 (Authenticity)

7. Medical Leave of Absence Information and Requirements Letter dated April 10, 2002, to Sean Hargrow from Cheryl Montgomery Bates Nos. 4-199 to 4-201


8. Inter-office Memorandum Re: FMLA Notification dated April 10, 2002, to Sean Hargrow from Cheryl Montgomery Bates No. 9-98


9. Federal Express FMLA Eligibility and Notice Form dated April 10, 2002


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Bates No. 9-165


10. Statement of Policy dated June 1, 2002 Bates No. Hargrow 00057


11. E-mail between Mr. Kevin McHugh, Ms. Roxanne Ruiz, and Mr. Tim Christensen regarding schedule of Mr. Hargrow dated June 5, 2002 Bates No. 12-89

Plaintiff’s Objections: FRE 601 (Foundation), FRE 801 (Hearsay), FRE 901 (Authenticity), FRE 402/403 (Relevance)

12. Email between Cheryl Montgomery, Charles Smith, and Kevin McHugh dated June 26, 2002 Re: Hargrow Bates No. 12-88 13. Emails between Cheryl Montgomery and Michelle Bruno dated July 11, 2002 Bates No. 13-18


14. Status of Your Open Job Letter dated August 6, 2002, to Sean Hargrow from Cheryl Montgomery Bates No. 4-204


15. Email between Cheryl Montgomery and Kevin McHugh dated August 23, 2002 Bates No. 12-95


16. Email Between Kevin McHugh, Cheryl Montgomery, Bev Koslow and named others dated October 28, 2002 Re: Hargrow MVR Bates No. 12-78


17. E-mail dated November 4, 2002, to Roxanne Ruiz from Kevin McHugh; Subject, Hargrove #267558 Bates No. 4-149


18. Email Between Kevin McHugh and Roxanne Ruiz Re: Hargrow dated November 4, 2002 Bates No. 9-44


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19. Email Between Kevin McHugh and Roxanne Ruiz Re: Sean Hargrow dated November 4, 2002 Bates No. 9-45


20. Email Between Kevin McHugh and Roxanne Ruiz Re: Sean Hargrow dated November 4, 2002 Bates No. 9-43


21. FedEx Express Career Opportunities, JCATS Positions Only, Posting date February 14, 2003 Bates No. 4-254 to 4-255


22. E-mail dated March 18, 2003, to Cheryl Montgomery from Sylvia Black; Subject, Sean Hargrow, with handwritten notes Bates No. 12-76


23. Email between Cheryl Montgomery and Sue Wira Re: New Hire Class dated March 24, 2003 Bates No. 12-74


24. Series of e-mails among Cheryl Montgomery, Denise Micale, and Carmen Cooley Re: Request for Extension of Duration Date dated March 21 & 27, 2003 Bates No. 4-217-2-218.

Plaintiff’s Objections: FRE 601 (Foundation), FRE 801 (Hearsay), FRE 901 (Authenticity), FRE 402/403 (Relevance), Multiple documents

25. Email between Carmen Cooley and Cheryl Montgomery Re: Sean Hargrow dated April 7, 2003 Bates No. 12-41


26. Email between Michelle Bruno and Cheryl Montgomery Re. Hargrow dated April 10, 2003 Bates No. 12-40


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27. CHCMC Case-Sean Hargrow Inter-Office Memorandum from A. Lu Crowder to Cheryl Montgomery dated April 18, 2003 Bates No. 12-43


28. Email between Eric Plunkett and Cheryl Montgomery Re: I Need Your Help Please dated May 9, 2003 Bates No. 12-34


29. E-mail dated May 9, 2003, to Cheryl L. Montgomery from Eric Plunkett; Subject, I Need Your Help Please Bates No. 12-35


30. Email between Kevin McHugh and Cheryl Montgomery Re: Handler Positions dated May 9, 2003 Bates No. 12-39


32. Email between Cheryl Montgomery and Michelle Bruno Re: Sean Hargrow dated May 10, 2003 Bates No. 12-27


33. Letter dated May 12, 2003, to Sean Hargrow from Cheryl Montgomery Bates No. 4-214 to 4-215 34. Customer Representative Non-Exempt Job Description Bates Nos. 37-1 to 37-2


35. Employee Weekly Trend Report Bates No. 12-86 to 12-87


36. Undated Document Entitled Sean Hargrow by Cheryl Montgomery Bates No. 12-80

Plaintiff’s Objections: FRE 601 (Foundation), FRE 801 (Hearsay), FRE 901


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(Authenticity), FRE 402/403 (Relevance) 37. Dangerous Goods Agent Job Description Bates No. 12-36 to 12-37


38. Package Tracking Inquiry Bates No. 4-205


39. Package Tracking Inquiry Bates No. 4-208


40. Tracking Document Bates No. 4-209


41. General Testing Inquiry Screen Bates No. 9-108


42. Tracking Document Bates No. 4-216


43. Prism General Testing Inquiry Screen Bates No. 4-219


44. Prism General Testing Inquiry Screen Bates No. 4-220


45. Termination – Involuntary Prism Authorization Form Bates No. 4-213


47. Employee Communication Record Bates No. 12-28-12-30

Plaintiff’s Objections: FRE 601 (Foundation), FRE 801 (Hearsay), FRE 901


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(Authenticity), FRE 402/403 (Relevance) 48. Employee Communication Record Bates No. 12-75


49. Handwritten Notes Bates No. 12-31


50. Federal Express Job Change Application Tracking System Job Change Bates No. 12-32


51. Untitled Document (Dangerous Goods Agent Description Included) Bates No. 12-33


52. People Manual Policies 1-7, 1-8, 1-68 and 5-5 Bates Nos. 0503P010- 0503P018; PM 0503P047-PM0503P048; PM0503P278 to PM0503P281.


54. Human Capital Management Program Action Form Bates Nos. 4-230 to 4-4-234


55. Any exhibit listed by Plaintiff. 56. Any document for rebuttal or impeachment purposes. 57. Plaintiff Sean Hargrow’s Affidavit Submitted in Support of Plaintiff’s Response to

the Motion for Reconsideration, Paragraph 4, Lines 5-10

Plaintiff’s Objections: FRE 601 (Foundation), FRE 801 (Hearsay), FRE 901 (Authenticity), FRE 402/403 (Relevance), Cumulative, Unduly Prejudicial

58. Return of service executed summons/complaint, filed on February 11, 2004.

Plaintiff’s Objections: FRE 601 (Foundation), FRE 801 (Hearsay), FRE 901 (Authenticity), FRE 402/403 (Relevance), Cumulative, Unduly Prejudicial


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G. DEPOSITIONS TO BE OFFERED

Each party hereby acknowledges by signing this Joint Proposed Final Pretrial

Order that any deposition not listed as provided herein will not be allowed, absent good

cause.

Plaintiff:

Plaintiff intends to call the following witnesses at trial. However, in the event

either or both of them is unavailable, Plaintiff designates the following portions of their

deposition transcripts to be read at trial:

1. Ronald Bennett. Deposition date August 31, 2005.

Page:Line 4:5-13 5:11-6:19 10:12-13:14 14:16-18 34:10-35:9 Defendant’s Objections: Defendant objects to the testimony designated on the grounds of relevance, hearsay, unduly prejudicial, confusion of the issues, and misleading the jury. Further, Defendant objects to this testimony as it is an opinion by a lay witness and as a witness with no personal knowledge of any evidence surrounding Plaintiff’s discharge. Further, in the Order on the Motion for Summary Judgment, the court ruled that this information was insufficient for a discrimination claim and as such, this evidence would probably be considered just as insufficient for a retaliation claim. More specifically, the Court ruled that the evidence of the comment of “boy” and the issuance of the refueling error discipline were both insufficient for Plaintiff to state a claim of discrimination or hostile work environment under Title VII and Section 1981. Additionally, the Court also found that no causal link between Plaintiff’s refueling reprimand and any protected activity with respect to Plaintiff’s retaliation claim under Title VII and Section 1981.

2. John Carroll. Deposition date August 16, 2005.

Page:Line 4:1-5 5:23-25


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6:4-7:11 15:9-19:16 20:6-16 Defendant’s Objections: Defendant objects to the testimony designated on the grounds of relevance, hearsay, unduly prejudicial, confusion of the issues, and misleading the jury. This evidence refers to situations regarding employees receiving DUIs and the hiring of them at the call center. There is no evidence whatsoever that Plaintiff ever received a DUI and was ever disciplined for receiving one or needed an accommodation because of a DUI. As such, this evidence should be excluded from trial. In the event that the Court does allow the designation, Defendant requests that it be allowed to designate the following lines and pages as well: 27:1 through 29:19. Defendant: Defendant Federal Express may use the following depositions and/or sworn testimony at trial:

1. Plaintiff Sean Hargrow’s Deposition 84: 9-25 109: 21-25 110: 1-8 195: 9-13 210: 2-12

2. Plaintiff Sean Hargrow’s Affidavit submitted in Support of Plaintiff’s

Response to Motion for Reconsideration, Paragraph 4, Lines 5-10. As for this designation, Defendant is aware that it is not a deposition. However, Plaintiff’s Affidavit is sworn written testimony that Defendant will seek to admit at trial as an admission against interest.

Plaintiff’s Objections: Plaintiff objects to Defendant’s designation of Plaintiff’s deposition testimony and the affidavit based on hearsay, relevance, authentication, cumulative, best evidence, narrative answer, speculation, assumes facts not in evidence, and unfairly prejudicial. Further, because Plaintiff will testify at trial, the designation of his deposition transcripts to be read to the jury is improper.

H. MOTIONS IN LIMINE


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Motions in limine shall be filed by the parties on November 2, 2006 by 4:00 p.m. Responses shall be filed on November 9, 2006 by 4:00 p.m.

I. LIST OF PENDING MOTIONS

Other than the motions in limine filed by the parties pursuant to this Court’s

Order, there are no pending motions.

J. PROCEDURES FOR EXPEDITING TRIAL None

K. ESTIMATED LENGTH OF TRIAL

__3__ hours for Plaintiff’s opening statements and closing arguments. __2.5 __ hours for Plaintiff’s opening statements and closing arguments. __50_ hours for Plaintiff’s case __12 hours for Defendant’s case (assuming the retaliation claim only) ___4__ hours for Plaintiff’s rebuttal ___2__ hours for Defendant’s rebuttal

L. JURY DEMAND There is no dispute as to Plaintiff’s right to a jury trial.

M. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR BENCH TRIALS Not applicable.

N. JOINT PROPOSED JURY INSTRUCTIONS, JOINT PROPOSED VOIR DIRE QUESTIONS AND PROPOSED FORMS OF VERDICT FOR JURY TRIALS The parties will submit their joint proposed jury instructions, joint proposed

voir dire questions and proposed forms of verdict on November 2, 2006 pursuant to

this Court’s Order regarding the Final Pretrial Conference.

O. CERTIFICATIONS

The undersigned counsel for each of the parties in this action do hereby certify

and acknowledge the following:

1. All discovery has been completed.


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2. The identify of each witness has been disclosed to opposing counsel.

3. Each exhibit listed herein: (1) is in existence; (2) is numbered; and (3) has

been disclosed and shown to opposing counsel.1

4. The parties have complied in all respects with the mandates of the Court’s

Rule 16 Scheduling Order and Order Setting Final Pretrial Conference.

5. The parties have made all of the disclosures required by the Federal Rules

of Civil Procedure (unless otherwise previously ordered to the contrary).

6. The parties acknowledge that once this Proposed Final Pretrial Order has

been signed and lodged by the parties, no amendments to this Order can be made

without leave of Court.

P. INFORMATION FOR COURT REPORTER

In order to facilitate the creation of an accurate record, the parties shall file a

“Notice to the Court Reporter” one week before trial containing the following

information that may be used at trial:

1. Proper names, including those of witnesses.

2. Acronyms.

3. Geographic locations.

4. Technical (including medical) terms, names or jargon.

5. Case names and citations.

The parties shall also send (or transmit electronically) to the court reporter a

copy of the concordance from key depositions.

Respectfully submitted this 2nd day of November, 2006.

s/Mishka L. Marshall s/Mary H. Beard Mishka L. Marshall Mary H. Beard Attorney for Plaintiff Attorney for Defendant 1 At the time the parties filed the Joint Proposed Pretrial Order, they had not yet exchanged the exhibits listed herein. The parties have agreed to exchange exhibits no later than November 10, 2006.


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Based on the foregoing, IT IS ORDERED that this Proposed Final Pretrial Order jointly submitted by the parties is hereby APPROVED and ADOPTED as the official Pretrial Order of this Court. DATED this ______ day of _______________________, 2006. ___________________________________ David G. Campbell United States District Judge
