Free Motion in Limine - District Court of Arizona - Arizona

Georgia A. Staton, 004863 Melissa Even, 023637 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 (602) 263-1752; (602) 263-7387 [email protected]; [email protected] Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Robert Gant and Betty Gant, Husband and Wife, v. NO. CV 03-2077-PHX-EHC

Plaintiffs, DEFENDANTS' SUPPLEMENTAL MOTION IN LIMINE RE: DISCRIMINATION ALLEGED BY OTHER EMPLOYEES Roger Vanderpool, Sheriff of Pinal County; Pinal County, a political subdivision; John Does and Jane Does I-X; ABC Corporations I-X; and XYZ Partnerships I-X, Defendants. On November 12, 2004, Defendants filed a Motion in Limine regarding discrimination alleged by other employees. This Court deferred ruling on the Motion until time of trial. Defendants hereby supplement that Motion in Limine. Pursuant to Fed. R. Evid. 401 and 404(b) this Court should exclude any evidence, argument, or inference that other Pinal County employees were discriminated against or harassed by Pinal County or former Chief Deputy Hal Campbell because such testimony is irrelevant and inadmissible. I. Introduction. Plaintiff filed this lawsuit against Pinal County alleging age and race discrimination as well as retaliation. Defendants filed a Motion for Summary

Case 2:03-cv-02077-EHC

Document 85

Filed 02/06/2006

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Judgment arguing that Plaintiffs had presented no evidence to support their claims.1 In their Response, Plaintiffs claimed that in August, 2001, former Chief Deputy Campbell made racially inappropriate remarks to other deputies, including Angelo Gonzales and Doug Brown. Plaintiff Robert Gant did not witness the conversation referred to in his Response. Former Chief Deputy Campbell denies ever making any inappropriate remarks. II. Legal Argument. A. The Evidence is Irrelevant. 1. In general, comments made to other employees, outside the presence of Plaintiffs, are not admissible as proof of discrimination.

Plaintiffs' discrimination claim is based on the following adverse employment actions: the denial of Plaintiff Robert Gant's promotion to Lieutenant in July 2001; the termination of Plaintiff Robert Gant in February, 2002; and the failure to promote Plaintiff Robert Gant to Sergeant in March, 2004. Plaintiffs claim that these actions were based on discriminatory animus that created a hostile work environment. Plaintiffs further claim that comments made to other employees prove this animus. Comments made to other employees outside of Plaintiffs' presence, however, are not relevant to Plaintiffs' claims. Especially in light of the

Defendant also claimed that Plaintiffs' claims were time barred. This Court ruled that two of the four alleged discriminatory incidents were time barred. As a result, Defendant now refers only to the remaining discrete incidents of alleged discriminatory conduct. 2 Case 2:03-cv-02077-EHC Document 85 Filed 02/06/2006 Page 2 of 8

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fact that the alleged comments were made after the July 20012 promotion denial and six months before the 2002 termination.3 The Ninth Circuit hostile work environment decisions that address the issue of alleged discriminatory statements made to employees other than the plaintiff, are illustrative. Dominguez-Curry v. Nevada Transportation Dept., 424 F.3d 1027 (9 th Cir. 2005)(statements made to other employees within plaintiff's range of hearing as well as comments made directly to plaintiff led to finding of hostile work environment); McGinest v. GTE Service Corp., 360 F.3d 1103 (9 th Cir. 2004)(comments made in the presence of plaintiff in order to anger and harass him are relevant in hostile work environment claim). In those cases, comments made to other employees only contributed to a hostile work environment where the comments were made in the presence of the plaintiff. In both cases, the court

pointed to the fact that the plaintiffs heard the comments as leading to the finding the comments contributed to the hostile work environment. These cases do not address the situation where the alleged comments were made outside of the plaintiff's presence. One district court within the Ninth Circuit, however, has addressed this same factual situation. Kishaba v. Hilton Hotels Corp., 737 F.Supp. 549 (D.Haw. 1990), affirmed 936 F.2d 578 (9 th Cir. 1991). In Kishaba, the court held that plaintiff could not prove a hostile work environment, in part, because the allegedly offensive statements were neither directed at the plaintiff nor made in her presence. Kishaba, at 576. The allegations

Plaintiff did not score high enough during the Assessment Center portion of the promotional process to be considered for promotion. The evaluators assigned to score each candidate were members of the community at large and members of other law enforcement agencies. Plaintiff was terminated only after submitting a false timesheet claiming to have worked Thanksgiving Day when he did not. 3 Case 2:03-cv-02077-EHC Document 85 Filed 02/06/2006 Page 3 of 8
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in Kishaba were similar to those made here. Ms. Kishaba, like Plaintiff, did not make a single allegation of an objectively racially offensive statement directed at her or made in her presence. She did allege that racially offensive comments had been made outside her presence and based on the same ethnicity as hers. The Court found that comments made to other employees were "too ambiguous, referred to other employees including non-Asian employees, were casual, joking remarks and were largely removed in time and context from Kishaba's resignation." Id. at 581. As a result, those comments could not serve as proof that the defendant subjected Ms. Kishaba to a hostile work environment. Just like the plaintiff in Kishaba, comments allegedly made to other employees, outside of Plaintiff Robert Gant's presence, are not be relevant to any alleged treatment of Gant. First, Plaintiffs allege the comments made to other employees were made in August, 2001, after the promotion denial. It follows that the comments could not have demonstrated animus as motivation for previous actions. Second, the termination of Plaintiff Robert Gant in February, 2002, came six months after the alleged comment. This time lapse of six months is too long to prove any causal connection between the comments and the termination. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)(per curiam) (noting that a court may not infer causation from temporal proximity unless the time between an employer's knowledge of protected activity and an adverse employment action is "very close" and citing cases for the proposition that a three-month and four-month time lapse is insufficient to infer causation); Manatt v. Bank of America, 339 F.3d 792, 802 (9 th Cir. 2003)(nine months time lapse insufficient to show causation). Other Federal Circuit and District Courts that have addressed this factual scenario, have also held that comments made outside of the presence of the plaintiff 4 Case 2:03-cv-02077-EHC Document 85 Filed 02/06/2006 Page 4 of 8

cannot be used to show that plaintiff suffered from a hostile work environment. Singletary v. Missouri Dept. of Corrections, 423 F.3d 886 (8 th Cir. 2005)(alleged use of racial epithets outside plaintiff's presence is insufficient to create a hostile work environment); Ngeunjuntr v. Metropolitan Life Ins. Co., 146 F.3d 464 (7 th Cir. 1998)(objectively offensive comments made outside plaintiff's presence are insufficient to show hostile work environment); Caruso v. City of Cocoa, 260 F.Supp.2d 1191 (M.D.Fla. 2003)(only one comment allegedly made in plaintiffs' presence, among allegations of other comments made outside their presence, is not enough to show hostile work environment); Tavares v. Sam's Club, 178 F.Supp.2d 96 (D.Conn. 2001)(comments that were not heard by plaintiff but rather reported to her by a co-worker cannot support hostile work environment claim). Whether former Chief Deputy Campbell made inappropriate racial remarks to other deputies, which Plaintiff did not hear, and occurred after one employment decision and six months before another, does not make it any more or less probable that age or race factored into the decisions by Pinal County to not promote him in 2001, terminate him in 2002, and or not promote him in 2004. Thus, the evidence is irrelevant and, therefore, inadmissible. See Fed. R. Evid. 401-402.

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The specific evidence that Plaintiff seeks to introduce is irrelevant.

Plaintiff's Complaint refers to comments made by Chief Deputy Harold Campbell to Deputy Angelo Gonzales. See Complaint, ¶ 39. The Plaintiff also makes note of the fact that Deputy Gonzales filed an internal grievance and a charge of discrimination with EEOC. In fact, Deputy Gonzales also filed a federal lawsuit against Sheriff Vanderpool and Pinal County, CV 03-1316-PHX-PGR. Deputy Gonzales's lawsuit was dismissed at Summary Judgment. See Order, attached as Exhibit 1. Deputy Gonzales asserted 21 instances of discriminatory conduct, including the comments that Plaintiffs now seek to rely upon. In response, Defendants successfully presented an explanation or legitimate non-discriminatory reason for their actions. See Order, p. 6. Plaintiffs offered no evidence of pretext, and, as a result, the Court granted Summary Judgment to Defendants. The County has attached this Order to demonstrate that if Gonzalez and others are allowed to testify unchecked regarding their personal gripes against the Sheriff's Office, this lawsuit will (1) devolve into multiple mini trials, (2) none of which has any bearing on any claims made by Gant. B. The Evidence Cannot Be Used To Show Action In Conformity Therewith.

The evidence is also inadmissible under Rule 404(b) because evidence of a person's other wrongs or acts is inadmissible to show action in conformity 6 Case 2:03-cv-02077-EHC Document 85 Filed 02/06/2006 Page 6 of 8

therewith. See Fed. R. Evid. 404(b). Although Plaintiff claims that former Chief Deputy Campbell made inappropriate remarks to other deputies, he does not allege that former Chief Deputy Campbell made any inappropriate remarks to him. Should Plaintiff attempt to claim at trial that former Chief Deputy Campbell made inappropriate racial remarks to him, any evidence of remarks to others would only be shown to prove action in conformity therewith. That is impermissible under Rule 404(b). III. Conclusion. Allegations that other deputies were discriminated against or harassed at the Sheriff's Office is the type of evidence that "rings the bell." If the jury hears this evidence, the bell cannot be unrung. This Court should preclude Plaintiff, his counsel, and his witnesses from testifying, arguing, or inferring that Pinal County or former Chief Deputy Campbell discriminated or harassed any other present or former employees. RESPECTFULLY SUBMITTED this 6th day of February, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By s/Georgia A. Staton Georgia A. Staton Melissa Even 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants 7 Case 2:03-cv-02077-EHC Document 85 Filed 02/06/2006 Page 7 of 8

ORIGINAL of the foregoing e-filed this 6 day of February, 2006 with: Clerk of the U.S. District Court District of Arizona COPY of the foregoing mailed this 6 day of February, 2006, to: Hon. Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, SPC 48 Suite 521 Phoenix, AZ 85003-2151 602-322-7530 Robert M. Gregory, Esq. LAW OFFICE OF ROBERT M. GREGORY, P.C. 1930 South Alma School Road Suite A-115 Mesa, AZ 85210 480-839-4711 Attorney for Plaintiffs

Gloria Gray

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