Grand Hotel owners oppose EEOC motion for new trial

The owners of Saipan Grand Hotel have asked the district court to deny for lack of legal merit the U.S. Equal Employment Opportunity Commission’s motion for a new trial in its sexual harassment lawsuit against the hotel owners that it had accused of subjecting a band singer to a sexually hostile work environment.

Attorney Steven P. Pixley, counsel for defendants Asia Pacific Hotels Inc. and Tan Holdings Corp., said U.S. District Court for the NMI Chief Judge Ramona V. Manglona permitted the testimony of their witness, Melinda Javier, subject to well-reasoned parameters surrounding the scope of her employment.

The district court has broad discretion in permitting or excluding the testimony of witnesses not appearing on witness lists, said Pixley in the defendants’ opposition to EEOC’s motion for new trial.

Pixley asserted that EEOC’s assault on Javier’s credibility is not supported by evidence.

On Dec. 20, 2011, the jury returned a verdict in favor of the Asia Pacific and Tan Holdings.

Last month, EEOC, through trial attorney Derek W. Li, filed the motion for a new trial. Li asserted that the defendants’ late disclosure of Javier as a trial witness substantially interfered with the EEOC’s fair presentation of its case.

Li said that five days before trial and more than 10 months after the fact-discovery cutoff, the defendants notified the EEOC that they planned to call Javier as a witness to impeach the singer, Michell Bunoan.

Javier had testified during the trial that she saw Bunoan and her alleged harasser, former Grand Hotel restaurant manager Roberto “Tom” Alegre, hugging each other in two separate occasions.

Alegre, who is now based in the Philippines, insists that he had a consensual relationship with Bunoan.

In defendants’ opposition to the motion, Pixley said that, on Dec. 6, 2011 he learned that Javier possessed relevant evidence directly impeaching the prior sworn deposition testimony and prior written statements of Bunoan.

“Notwithstanding the Defendants belief that they were not required to disclose this impeachment witness prior to trial, the Defendants, nonetheless, elected to advise Plaintiff’s counsel and the District Court of the existence of this witness and the substance of her anticipated testimony,” Pixley said.

Accordingly, Pixley said, the EEOC was advised of this new witness during a recess of the pre-trial conference in this civil proceeding on Dec. 7, 2011.

The lawyer said later that same day, he advised the court that the defendants intended to call Javier as a witness during the trial.

In addition, Pixley said, on Dec. 8, 2011 he caused a letter to be delivered to EEOC counsel confirming defendants’ intent to call Javier as an impeachment witness.

Pixley said Javier appeared at the Hyatt Regency Hotel on Dec. 10, 2011 for an interview with EEOC counsel that lasted for approximately one hour.

On Dec. 10, 2011, the defendants filed a motion to permit the impeachment testimony of Javier. EEOC objected to the motion.

On Dec. 15, 2011, Manglona granted the motion to permit the testimony of Javier subject to well-reasoned restrictions.

Pixley said in line with Manglona’s ruling, Javier testified on Dec. 15, 2011.

Pixley said Javier’s testimony that she saw Bunoan and Alegre embracing on two separate occasions clearly impeaches Bunoan’s deposition testimony.

Pixley said EEOC seeks to buttress its claim of prejudice by suggesting that Javier lied about seeing an advertisement in the Saipan Tribune which led her to apply for a job at the Saipan Grand Hotel.

Pixley said EEOC represents that Javier testified that “she came back to work at the Saipan Grand Hotel in December 2011 after she learned about the job opportunity through Saipan Tribune in November 2011.

EEOC pointed out that its investigation after the trial reveals that the Saipan Tribune did not publish any ads of a supervisor position in November 2011.

Pixley, however, noted that EEOC’s counsel in the cross-examination of Javier asked the witness if she had seen an ad in the newspaper.

Pixley said Javier’s replied “Yes. That’s the month of November, something like that.”

Pixley said the use of equivocal words “something like that” weighs against a finding that Javier was being untruthful.

The lawyer noted that as acknowledged by the EEOC, an advertisement was published in the Saipan Tribune for a supervisor position as late as Oct. 28, 2011.

“The EEOC’s reliance on this feeble argument as a foundation for its claim of prejudice powerfully demonstrates the weakness of its motion,” Pixley stressed.