Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Edward W. Nottingham Civil Action No. 03-N-2311(CBS) LINDA M. PIERCY Plaintiff, v. TERRY MAKETA, as Sheriff of El Paso County Sheriffs Office, EL PASO COUNTY SHERIFFS OFFICE, and THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO, Defendants.

FINAL PRETRIAL ORDER

1. July 25, 2008.

DATE OF CONFERENCE

2.

JURISDICTION

This action is brought alleging discrimination on the basis of sex in the terms, conditions and privileges of employment under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (``Title VII,,). Injunctive and declaratory relief, damages and other appropriate legal and equitable relief are sought pursuant to 42 U.S.C. § 2000e (f) and (g) and 29 U.S.C. § 626(b). Jurisdiction is based on 28 U.S.C. § 1331.

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3. a. Plaintiffs Claims

CLAIMS AND DEFENSES

In Piercy v Maketa, et al., 480 F.3d 1192 (10th Cir. 2007), the 10th Circuit found that the Metro Jail transfer policy of defendant El Paso County Sheriff Office ("EPSO") was discriminatory on its face, and that summary judgment "was improperly granted on whether Piercys inability to transfer to Metro Jail was an adverse employment action." Id., 480 F.3d at 1204. The 10th Circuit remanded for a determination as to whether the reasons for the transfer policy offered by EPSO were adequate to support its defense of bona fide occupational qualification ("BFOQ"). In its June 30, 2008, Order and Memorandum of Decision, this Court found that there was no issue of material fact regarding Defendants BFOQ defense and it granted plaintiffs motion for summary judgment on this issue. In its Order scheduling the Final Pretrial Conference, the Court noted that "The only remaining question is whether EPSOs action preventing female deputies from transferring to Metro was an adverse employment action with respect to ,,terms, conditions, or privileges of employment, which shall be decided by the jury at trial." b. Defendants Defenses Defendants agree that the Tenth Circuit found that the Metro decision was facially discriminatory and remanded to the District Court for a decision whether it

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was an adverse employment action and whether gender was a bona fide occupational qualification ("BFOQ") for the job of deputy sheriff, thereby permitting the alleged discrimination. Specifically, the Tenth Circuit stated that it was "remanding for further proceedings with respect to the Metro jail transfer policy." Piercy, 480 F.3d at 1204. Defendants also agree that the District Court, by its Order of June 30, 2008, found that there was no issue of fact on the BFOQ issue and granted summary judgment for Plaintiff on that issue. Further, Defendants agree that, as stated in the Courts Order of June 30, 2008, the trial in this matter regards only whether a refusal to allow Plaintiff to transfer to Metro was an adverse employment action. It is Defendants position that EPSOs decision regarding staffing female deputies at the Metro facility was not an adverse employment action. The terms, conditions and privileges of employment were substantially the same whether the deputy was at CJC or Metro. Pay, benefits, promotion opportunities, and other opportunities of employment were the same whether the deputy was staffed at CJC or Metro. Further, the job duties were substantially the same. Plaintiff did not suffer demotion, decrease in pay, decrease in benefits, including vacation time, decrease in ability to get desired shifts or days off, decrease in promotion opportunities, or other change in employment opportunities, by not being allowed to apply for a transfer to Metro.

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Defendants do not waive affirmative defenses they have asserted for purposes of the record, but, pursuant to the Courts instruction, Defendants state that the following affirmative defense may be addressed for purposes of trial in this matter: Plaintiff has failed to mitigate her damages, if any, as required by law. Depending on the jurys determination at trial, the following affirmative defenses may be brought before the Court: Plaintiff's claims for punitive or exemplary damages are barred or subject to the limitations of C.R.S. § 13-21-102; Plaintiff's claim for punitive or exemplary damages violates the Excessive Fines clause of the Eighth Amendment to the United States Constitution; the Due Process clause of the Fourteenth Amendment to the United States Constitution; the Equal Protection clause of the United States Constitution; and the Double Jeopardy clause of the Fifth Amendment to the United States Constitution; Plaintiffs claims for compensatory damages and punitive damages are subject to the limitations of 42 U.S.C. § 1981a(b)(3). In addition, it is Defendants position that Plaintiff has not suffered any damages. 4. STIPULATIONS

1. At the time of Plaintiffs employment with EPSO, EPSO operated two jail facilities: the Criminal Justice Center ("CJC"), which housed both male and female inmates of mixed security, including some maximum security inmates; and the

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Metro facility, which housed (at the time of Plaintiffs employment) only male inmates. 2. Plaintiff was first employed with EPSO as a security technician from June 1996 to March 17, 1997. Plaintiff then entered the EPSO Law Enforcement Training Academy on March 17, 1997, and became a Deputy Sheriff III in July 1997. Plaintiff was employed with EPSO as a deputy sheriff from July 1997 to February 19, 2003. During her employment as a deputy sheriff, Plaintiff worked in the detentions bureau at CJC. 3. Plaintiff had attained Deputy I level by the time of her termination. 4. On August 27, 2002, EPSO forwarded a memorandum to "All Concerned" advising: "In the very near future, we will have a few Metro Floor Security Positions become available. Unfortunately, at this time, only requests from male deputies will be accepted." 5. PENDING MOTIONS

There are currently no motions pending before the Court. 6. a. Non-Expert Witnesses WITNESSES

1. Plaintiff Will Call: a) Rebecca Kimball, 4802 Hawk Meadow Drive, Colorado Springs, CO 80916, 719-338-8920. In Person.

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b)

Nita Acey 2540 Haystack, Colorado Springs, CO 80922, 719-591-4971. In Person.

c)

Pam Woods 1224 Fagin Drive, Colorado Springs, CO, 719-380-9932 or 3605271. In Person.

d) f)

Molly Griener, 6 N. 8th St., Colorado Springs, CO, 719-661-7901. In Person. Plaintiff Linda Piercy, 8423 Wilmington Dr., Colorado Springs, CO 809207094. In Person.

g)

Plaintiffs husband, Ernst Piercy, 8423 Wilmington Dr., Colorado Springs, CO 80920-7094. 2. Plaintiff May Call:

h)

Valerie Hazel, address presently unknown, (423) 234-2323. 3. Defendants Will Call:

a)

Sheriff Terry Maketa, c/o El Paso County Criminal Justice Center, 2739 East

Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; b) Detention Bureau Chief Paula Presley, c/o El Paso County Criminal Justice

Center, 2739 East Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; 4. Defendants May Call: c) Undersheriff Teri Goodall (retired), c/o El Paso County Criminal Justice

Center, 2739 East Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; d) Commander James Grayson (retired), c/o El Paso County Criminal Justice

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Center, 2739 East Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; e) Lieutenant Dale Goodell, c/o El Paso County Criminal Justice Center, 2739

East Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; f) Commander Ken Moore, c/o El Paso County Criminal Justice Center, 2739

East Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; g) Bureau Chief (support services) Larry Kastner, c/o El Paso County Criminal

Justice Center, 2739 East Las Vegas Street, Colorado Springs, CO 80906, 719-3902000, in person; h) Sergeant Matt Kortrey, c/o El Paso County Criminal Justice Center, 2739

East Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; i) Lieutenant Brandt, c/o El Paso County Criminal Justice Center, 2739 East

Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; j) Commander King, c/o El Paso County Criminal Justice Center, 2739 East

Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; k) Deputy Keisha Cole, c/o El Paso County Criminal Justice Center, 2739 East

Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; l) Deputy Belinda Culver, c/o El Paso County Criminal Justice Center, 2739

East Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; m) Sergeant John Molatch, c/o El Paso County Criminal Justice Center, 2739

East Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; n) Deputy Stoltmom, c/o El Paso County Criminal Justice Center, 2739 East

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Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; o) Lieutenant Caron Allen, c/o El Paso County Criminal Justice Center, 2739

East Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; p) Deputy Muoio, c/o El Paso County Criminal Justice Center, 2739 East Las

Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; q) Bureau Chief (law enforcement) Joe Breister, c/o El Paso County Criminal

Justice Center, 2739 East Las Vegas Street, Colorado Springs, CO 80906, 719-3902000, in person; r) Deputy Patty Fowler (retired), c/o El Paso County Criminal Justice Center,

2739 East Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; s) Deputy Langfels, c/o El Paso County Criminal Justice Center, 2739 East Las

Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; t) Deputy Florence Navarro (retired), c/o El Paso County Criminal Justice

Center, 2739 East Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; u) Sergeant Craig Baumert, c/o El Paso County Criminal Justice Center, 2739

East Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; v) Deputy John David, c/o El Paso County Criminal Justice Center, 2739 East

Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person; w) Deputy Marian Whitten, c/o El Paso County Criminal Justice Center, 2739

East Las Vegas Street, Colorado Springs, CO 80906, 719-390-2000, in person;

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Additional witnesses for Defendants include any witness necessary to authenticate or provide the foundation for the admission of any admissible exhibit; and any witness necessary for impeachment or rebuttal. b. Expert Witnesses

Plaintiff does not intend to call any expert witnesses. Defendants do not intend to call any expert witnesses. 7. a. List of Exhibits (1) Plaintiff(s): EXHIBITS

1. August 27, 2002 Intra-Office Memorandum, Subject: Metro Floor Security Positions. 2. October 21, 2002, You Dont Care memo from Deputy V. Hazel 3. 2003 Shift Bid Process. (2) Defendant(s):

A-1) Organizational chart of EPSO. A-2) Deputy sheriff job description. A-3) Document regarding recruiting of female deputies; A-4) Selected policies and procedures of EPSO, including but not limited to 314 and 702; A-5) Receipt for policy and procedure manual signed by Plaintiff, 4/21/97; A-6) Videotape of CJC;

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A-7) Photographs of CJC; A-8) Videotape of Metro; A-9) Photographs of Metro; A-10) Selected CJC Shift Assignment sheets for all shifts from January 2002 through February 2003; A-11) Selected El Paso County Sheriffs Office Detention Bureau Daily Ward Logs for Plaintiff from January 2002 through February 2003; A-12) August 27, 2002, Memorandum Re: Metro Floor Security Positions; A-13) Memo from Commander Grayson to Linda Piercy, dated October 7, 2002; A-14) Termination letter to Plaintiff, dated February 11, 2003; A-15) Final termination letter from Sheriff Maketa to Plaintiff, dated February 19, 2003. Additional exhibits for Defendants include any documents necessary for impeachment or rebuttal. b. Copies of listed exhibits must be provided to opposing counsel no later than five days after the Final Pretrial Conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served (by electronic means, hand delivery or facsimile) no later than eleven days after the exhibits are provided. 8. DISCOVERY

Discovery has been completed. [Unless otherwise ordered, upon a showing of good cause in an appropriate motion, there will be no discovery after entry of the Final Pretrial Order.] 9. SPECIAL ISSUES

Defendants identify special evidentiary issues related to liability and/or

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damages as follows: If Plaintiff alleges emotional damages and/or punitive damages as an element of damages at trial, does such damage theory permit Defendants to elicit and introduce evidence regarding the reasoning and rationale related to the decision not to allow female employees to apply for some open positions at the Metro facility, and other aspects of Plaintiffs employment. Defendants intend to submit a trial brief on that issue. 10. EFFECT OF FINAL PRETRIAL ORDER

Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Preliminary Pretrial Order and the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 11. TRIAL AND ESTIMATED TRIAL TIME; TRIAL PREPARATION CONFERENCE Trial is to a jury and expected to be four days at the United States District Court for the District of Colorado, in Denver, Colorado. Trial Date: September 29, 2008. Trial Preparation Conference Date and Time: September 19, 2008, 3:45 p.m. At the trial preparation conference, counsel are directed to comply with the Instructions Concerning Preparation for Trial Preparation Conference delivered to all parties at the Final Pretrial Conference.

a.

b. c.

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