Free Objections - District Court of Colorado - Colorado

Case 1:03-cv-02311-EWN-CBS

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Filed 08/12/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 03-cv-02311-EWN-CBS LINDA M. PIERCY, Plaintiff, v. TERRY MAKETA, AS SHERIFF OF EL PASO COUNTY SHERIFF'S OFFICE; EL PASO COUNTY SHERIFF'S OFFICE; and THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO, Defendants.

DEFENDANTS' OBJECTIONS TO PLAINTIFF'S TRIAL EXHIBITS

DEFENDANTS submit the following objections to Plaintiff's trial exhibits, the list of which is attached hereto, pursuant to Fed. R. Civ. P. 26(a)(3). 1. Plaintiff's Exhibit 2. Exhibit 2 is a memo from a Deputy Hazell to former

Sheriff John Anderson, via her chain of command, with the subject line: "You don't care Ward 1A3." (A copy of Plaintiff's Exhibit 2 is attached hereto.) The memo from Deputy Hazell complains that female deputies working the female ward at CJC, 1A3 at that time, need an assist and complains that there is an officer safety issue when the number of inmates is high. Defendants object to Exhibit 2 pursuant to Fed. R. Evid. 803, on the grounds that this exhibit contains hearsay not subject to any exception of the hearsay rule. Plaintiff is offering the exhibit to prove the truth of the matter

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asserted therein - that 1A3 is more difficult to work than other wards at CJC. Therefore, the exhibit contains inadmissible hearsay and no exception to the hearsay rule applies. 2. Defendants also object to Exhibit 2 as not relevant pursuant to Fed. R. Evid.

401 and 402. The sole issue before the Court is whether not allowing Plaintiff to transfer to Metro was an adverse employment action. The factors concerning that issue include whether the action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Plaintiff bears the burden of showing that the terms, conditions, and privileges of her employment were substantially different at Metro than CJC. A memo from another Deputy complaining of working the female ward at 1A3 is not relevant to the issue of whether the terms, conditions, or privileges of Plaintiff's employment were substantially similar or different between CJC and Metro, especially where it is undisputed that Plaintiff did not work just the female wards but rather worked male wards at CJC as well. Exhibit 2 will not make it more or less probable that a transfer to Metro was not purely a lateral transfer. 3. If Exhibit 2 is determined to be relevant, Defendants also object to Exhibit 2

pursuant to Fed. R. Evid. 403. Defendants believe that discussion of whether another deputy subjectively believed working the 1A3 ward was difficult is prejudicial, will confuse the issues, and will cause undue delay and a waste of time. 4. Plaintiff's Exhibit 3. Exhibit 3 is a group of documents relating to shift

bidding at CJC. (A copy of Plaintiff's Exhibit 3 is attached hereto.) The first document in

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the exhibit is a memo, dated October 1, 2002, to CJC Floor Security Personnel from Lieutenant Robert W. King regarding the 2003 shift bid process. The memo attaches a copy of the 2003 CJC Floor Security Shift Schedule and a working copy of the CJC Floor Security Seniority List. The memo contains highlighting (from Plaintiff) over the phrase "Positions that are open to "female deputies only" have been identified." 5. First, Defendants object to the highlighting on this document. Second,

Defendants object to Exhibit 3 as not relevant pursuant to Fed. R. Evid. Rule 401 and 402. The shift bid process for 2003 is not relevant to this case as Plaintiff was terminated from her job as Deputy Sheriff in February 2003, and the change to shift bidding from the prior system had only begun in October 2002 for the 2003 schedule. In addition, the highlighted section of the memo stating that "Positions that are open to `female deputies only' have been identified" is not relevant to the sole issue in the case which relates to the Metro transfer decision by EPSO in 2002. 6. Exhibit 3 appears to relate to internal CJC shift assignments and bidding and,

as such, it is not relevant to the sole issue in this case relating to whether a denial of a transfer to Metro was an adverse employment action. This is especially so as it is undisputed in this case that shift bidding at Metro is separate from shift bidding at CJC. Therefore, seniority at CJC, bidding positions at CJC, and other issues relating to bidding at CJC, are not relevant to shift bidding at Metro. It appears, from this exhibit, that Plaintiff will be rearguing her other claims of discrimination related to shift bidding, pat searching, and general job duties of a deputy sheriff at CJC, claims for which this Court specifically

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found Plaintiff did not establish her prima facie case for discrimination and, therefore, granted summary judgment against Plaintiff and for Defendants on that issue. 7. If Exhibit 3 is determined to be relevant, Defendants also object to Exhibit 3

pursuant to Fed. R. Evid. 403. Defendants believe that discussion regarding female only positions at CJC relating to shift bidding is prejudicial, will confuse the issues and cause undue delay and a waste of time. Respectfully submitted,

Date: August 12, 2008

s/ Jessica Kyle Muzzio Gordon L. Vaughan Jessica Kyle Muzzio VAUGHAN & DeMURO 111 South Tejon, Suite 410 Colorado Springs, CO 80903 (719) 578-5500 (phone) (719) 578-5504 (fax) [email protected] (e-mail) and Andrew C. Gorgey First Assistant County Attorney OFFICE OF THE COUNTY ATTORNEY OF EL PASO COUNTY, COLORADO 27 East Vermijo Avenue Colorado Springs, CO 80903 (719) 520-6485 (phone) (719) 520-6487 (fax) [email protected] (e-mail) ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE I hereby certify that on this 12th day of August, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Stefan Kazmierski [email protected] Andrew C. Gorgey [email protected]; [email protected] and I hereby certify that the foregoing was placed in the U.S. Mail, postage prepaid, and addressed to the following: [none] s/ Jessica Kyle Muzzio Gordon L. Vaughan Jessica Kyle Muzzio VAUGHAN & DeMURO 111 South Tejon, Suite 410 Colorado Springs, CO 80903 719-578-5500 (phone) 719-578-5504 (fax) [email protected] (e-mail) ATTORNEYS FOR DEFENDANTS

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