Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00558-MSK-OES

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Filed 11/14/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO __________________________________________________________________ Civil Action No. 04-MK-0558 (OES) DEBORAH DIXON, Plaintiff, vs. DENVER HEALTH AND HOSPITAL AUTHORITY, Defendant.

________________________________________________________________________ PLAINTIFF'S RESPONSE TO MOTION IN LIMINE REGARDING SEXUAL TALK AND STRIP CLUB VISITS ________________________________________________________________________ Plaintiff, Deborah Dixon, by and through her attorney, Karen Larson, hereby Responds to Defendant's Motion in Limine to Exclude Evidence of Visits to Strip Clubs And Conversations About Sex as follows: 1. Plaintiff's Complaint includes claims of discrimination based on Race, Religion and retaliation by her co-workers and supervisors because she reported them for their illegal behavior. Not surprising, Plaintiff's co-workers who engaged in racist slurs and harassment or laughed at the racist harassment behavior have put up a united front and have closed ranks to categorically deny a bigoted atmosphere could possible exist.

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2. Against Plaintiff's very specific descriptions of the illegal conduct, including pervasive taunts and jokes about her race and religion and their self-righteous indignation about this lawsuit, Defendant attempts to mask its hostile bigotry by gathering statements from Plaintiff's co-workers portraying themselves as professional people who would insist on nothing less than a pristine politically-correct diverse workplace. Exh. 1, Statement of Carol Nedved in DHHA Investigation, Bullets 7 and 13. 3. Plaintiff's workplace is permeated by offensive jokes including crude sexual descriptions in addition to the racial and religious belittlement, yet the main offenders also deny their sexual conversations despite contrary evidence from Plaintiff and their own friends. Exh.2, Depo. of Darrell Diggs, p. 10, ll. 21; Exh. 3, Depo. of Brian Leary, p.9, ll. 2-25; p. 10, ll. 1-25; p. 11, ll. 1-16 (stating he cannot recall whether he engages in crude conversations); Exh. 4, Depo of Greg Curry, p. 12, ll. 4-11 (workplace sexual comments become very graphic at times.) Sexual comments are used by and denied by the same people who make racist and religious comments, therefore, the sexual comments are probative to impeach these actors and to describe the overall workplace atmosphere. Under the guise of camaraderie, which Defendant excuses as necessary to promote creativity, employees in this department are given unlimited daily time to socialize, joke and leave the workplace. Exh. 3, Depo. of Brian Leary, p. 24 ll. 1-25;

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p. 25, ll. 1-17; Exh. 5, Depo of Jeff McNally, p.13, ll. 1-25; p. 14, ll. 1-25; Exh. 4, Depo of Greg Curry, p.21, ll. 3-23. The cliquish visits to the bars and clubs after 3:00 or 4:00 p.m. by these employees, coupled with the opportunity to turn in their work late at night if they leave early, compromises any discipline to remain on task during the day. Exh. 3, Depo of Brian Leary, p. 23, ll. 8-25; p. 24, ll. 1-25; p. 25, ll. 1-17. Defendant attempts to demonstrate the workers' color-blindness by citing their friendship and camaraderie with David Boone, an African-American man who has also joined in on the racist taunts about monkeys directed toward Plaintiff. Exh. 5, Depo. of Jeff McNally, p. 17, ll.15-23, p. 19, ll. 10-17. Evidence of David Boone going to the

strip clubs with the guys offers an explanation how he has circumvented the racial hostility of this workplace and has become an exception to racial exclusion by getting onto the strip bar clique. The strip bar visits and the unrestrained sexual talk of these employees describe a locker-room atmosphere that naturally lends itself to unrestrained animus that increase the likelihood and believability that the jokes include racism and religious bigotry. Facially neutral abusive conduct and evidence of general ridicule by

co-workers supports a finding of racial animus. Chavez v. New Mexico, 397 F. 3d 826, 833-836 (10th Cir. 2005). As surreptitious and covert as Plaintiff's co-workers are in their racism and religious hatred because of their liability due to this lawsuit, they are overt in their loud,

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crude sexual conduct. Evidence of profane and vulgar workplace language is relevant and probative because it demonstrates the totality of the workplace culture and underscores the lack of discipline in an irreverent group of workers who have no concern for the rights and feelings of others. The totality of the circumstances must be considered by a jury in deciding how many racist comments constitute harassment or whether general profanity and vulgarity mixed with specific racial, ethnic, or religious epithets equate to the sum of pervasiveness required for a finding of racial or religious harassment. McGowan v. All Star Maint., Inc. 273 F. 3d 917, 926 (10th 2001). Knowledge of the vulgarity used by these co-workers underscores the believability and probability of Plaintiff's claims. The sexual matters help to describe the lack of legal or social boundaries in this workplace. DATED this 14th day of November, 2005. Respectfully submitted,

s/Karen Larson________ Karen Larson Karen Larson 1120 Lincoln Street, Suite 711 Denver, CO 80203 Telephone:303-831-4404 FAX: 303-830-8843 Email: [email protected] Attorney for Plaintiff

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CERTIFICATE OF MAILING I certify that on this 14th day of November, 2005 I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] s/Karen Larson________ Karen Larson 1120 Lincoln Street, Suite 711 Denver, CO 80203 Telephone:303-831-4404 FAX: 303-830-8843 Email: [email protected]

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