Free Response to Motion - District Court of Colorado - Colorado

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

Document 52

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 DEFENDANT'S MOTION IN LIMINE REGARDING GREG CURRY ________________________________________________________________________ Plaintiff, Deborah Dixon, by and through her attorney, Karen Larson, hereby responds to Defendant's Motion in Limine To Exclude Testimony by Greg Curry of Alleged Discrimination and Racial Jokes or Comments as follows: 1. Defendant wishes to exclude the testimony of Greg Curry that regards Mr.

Curry's hearing a co-worker use the word, "monkey" and other racial comments from time to time in the workplace. Defendant claims this testimony is vague pursuant t o Ford v. West, 222 F. 3d 767, 777 (10th Cir. 2000). Plaintiff complains of racial harassment by co-workers including their repeated references to "monkey" as a racist slur, especially after she complained of racial harassment. Defendant's witnesses deny the use of the word, "monkey" in the workplace and state if it was used, it was used as a non-racist reference to "Planet of the Apes."

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

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2. Mr. Curry's testimony is relevant because he verifies the term was used at the workplace; and he verifies he heard it before Plaintiff complained of hearing it. Exh. 2, p. 14, ll. 25; p. 15, ll. 1-22; p. 16, ll. 4-16. He will testify he has heard racist comments and jokes frequently, at least every few weeks; and, he is not often in the office. Exh. 2, p. 37, ll. 19-25; p. 38, ll. 1-15. His testimony that his co-workers make racist comments from time to time in the workplace is also relevant because it refutes the witnesses interviewed in the DHHA investigation of Plaintiff's complaint, who all deny categorically that racist comments would ever be made in the workplace. Ex. 1, p. 1, (second to last paragraph); p. 2, (second to last paragraph). Mr. Curry testified he is not bothered by the racist comments because he is inured to them after growing up in the south. Exh. 2, p. 15, ll. 1-22. Exh. 2, p. 16, ll. 4-16. 2. Mr. Curry also testifies he is not comfortable going to the social events in his department because he knows he is not really invited because of cliques based on race and cliques based on the fact his department, Interlink, is 90% white. Exh. 2, p. 27, ll. 125. He states the white bread character of Interlink spills over into Denver Health. Exh. 2, p. 29, ll. 23-25. He has talked to Greg Veltri and Jeff Pelot, managers in the department, about the racial preference toward whites in hiring and that he was told to not apply for a position that white employees received. Exh. 2, p. 29, ll. 1-25; p. 30, ll. 1-25. He thinks Jeff Pelot and Greg Veltri have a preference for white employees. Exh. 2, p. 30, ll. 20-25; p. 31, ll. 1-9. 2. In Ford v. West, 222 F. 3d 767, 777 (10th Cir. 2000) the Court upheld a summary judgment of a racial harassment case because that plaintiff baldly asserted he He doesn't let it get to him if the word monkey is used.

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was continuously subjected to racial slurs; however, that assertion was not sufficient to withstand summary judgment because the evidence did not show dates, times or the nature of the slurs. Mr. Curry's testimony in this case is not to prove instances of racial harassment to avoid summary judgment in a complaint of his own, it is intended to refute Defendant's contention and witness statements that racial slurs would never occur in this workplace and that Ms. Dixon fabricated references to "monkeys." Mr. Curry's lack of dates, times and specific comments do not undermine his statement that racial comments occur; rather, show that he has not kept dates and specifics because he does not pay much attention to racist comments other than the use of the "N" word. Exh. 2, p. 15, ll. 16-21. 3. Defendant also wishes to eliminate testimony by Mr. Curry that he was told to not apply for a position that was filled by a white Interlink employee because it was a mere belief or "in his heart" that his race was a motivating factor in employment decisions against him. Actually, Mr. Curry said that in his mind he wanted to think that he was rejected because he was not an Interlink employee, but he knew in his heart it was race that excluded him from the job. This is a statement of personal knowledge, not speculation. Mr. Curry also testified that he does not go to the Interlink office social functions because the conduct of the white employees is not welcoming. This testimony supports Plaintiff's evidence that she is excluded in the workplace because of her race, because Mr. Curry feels and experiences the same exclusion. Mr. Curry's testimony about racial slurs and the exclusion of African-Americans from the social network and from jobs refutes the Defendant's witnesses who deny there have ever been any racial slurs or disparate treatment in this workplace. Exh. 1.

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Because the direct evidence presented by Mr. Curry assists the trier of fact in weighing the testimony of other witnesses, it is probative and relevant and must be included. DATED this 14th day of November, 2005. Respectfully submitted,

s/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

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]