Free Report - District Court of Arizona - Arizona

GANT v. PINAL COUNTY United States District Court ­ District of Arizona Expert Report Jay M. Finkelman, Ph.D.
Overview of the Case I was contacted by Robert Gregory, Esq. on behalf of his clients Robert and Betty Gant. He described the facts and issues in the case as follows: Plaintiffs filed a lawsuit in Pinal County Superior Court, on June 14, 2002, in which they named Roger Vanderpool and Pinal County as defendants, alleging racial and age discrimination under Title VII of the Civil Rights Act and the Arizona Civil Rights Act, retaliation, violation of 42 U.S.C. § 1983, wrongful termination, negligent hiring and supervision, and intentional and negligent infliction of emotional distress (the "First Lawsuit"). The parties reached a settlement and the lawsuit was dismissed. In the fourteen months following the settlement, discrimination, harassment and other conditions constituting a hostile work environment that necessitated the lawsuit reappeared, with increased intensity, thus necessitating the filing by Plaintiffs of a second lawsuit on October 27, 2003, wherein Plaintiffs alleged the same causes of action (less negligent infliction of emotional distress) as they had in the first lawsuit. Defendants filed a Motion for Summary Judgment of the second lawsuit, to which Plaintiffs responded and requested the Court's permission to amend their complaint with a hostile work environment claim. After the Court's Order denying, in part, Defendants' Motion for Summary Judgment and granting Plaintiffs' request to amend their Complaint, Plaintiffs filed a Proposed Amended Complaint adding a hostile work environment claim. In Plaintiffs' Proposed Amended Complaint, Plaintiffs alleged the following facts in support of their proposed hostile work environment claim: 1) On or about June 14, 2001, Plaintiff passed the written test administered by Defendants for promotion to the rank of Lieutenant with the second highest score. Plaintiff was subsequently denied promotion by Defendants on the basis of a newly-instituted assessment process, for which denial Plaintiff filed a grievance with Defendants. See Plaintiffs' Amended Complaint, ¶ 38. 2) On or about August 27, 2001, Plaintiff sent a letter to Mike Arnold, Director of Human Resources for Pinal County, regarding alleged statements made by Chief Deputy Harold Cambpell, and witnessed by Deputy Angelo Gonzales ("Gonzales"), in which Harold Campbell asked Gonzales if he should have a separate promotion list for "Chicanos, one for gringos, and one for blacks" and further stated that "it breaks my heart to see you guys not doing as well on the test

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as everyone else. Blacks, well we know they're not as smart as us." Gonzales memorialized what he heard in an internal grievance with the Sheriff's Office, Case 2001-44, and a Charge of Discrimination filed with the Equal Employment Opportunity Commission, Charge No. 350A12940, September 4, 2001. See Plaintiffs' Amended Complaint, ¶ 39. 3) On or about February 8, 2002, Defendants terminated Plaintiff for allegedly falsifying his time record on Thanksgiving Day in 2001. See Plaintiffs' Amended Complaint, ¶ 40. 4) On or about August 9, 2002, and after appeal to the Pinal County Merit Commission, Plaintiff returned to work and was assigned to work with accountability to the same supervisor and in the same region where Plaintiff had previously experienced discrimination. See Plaintiffs' Amended Complaint, ¶ 41. 5) On or about November 3, 2002, Plaintiff filed a grievance with the Sheriff's Department alleging discrimination and harassment. Plaintiff pointed out in the grievance that a recent applicant had been promoted to the rank of Sergeant even though the applicant did not have a passing score. This contradicted Vanderpool's response to Plaintiff's June 15, 2001 grievance, in which Vanderpool told Plaintiff that "[y]ou failed to achieve a minimum passing score of 70% therefore [sic] being eliminated from the eligibility list." See Plaintiffs' Amended Complaint, ¶ 42. 6) On or about March 16, 2004, Plaintiff applied for promotion from the rank of Corporal to Sergeant and took the written test administered by Human Resources. Plaintiff was the only applicant to pass the written test (out of 13 applicants) and received a score of 98%. After the results of the test were announced, the Sheriff's Department issued an email to the applicants indicating that the test would need to be re-scored because some of the test questions related to study materials that were not available. Upon rescoring the test, Plaintiff was still the only applicant to pass, and received a revised score of 100%. On or about March 22, 2004, the Sheriff's Department sent an email to the test applicants indicating that the March 16, 2004, test would need to be re-administered because Human Resources had "administered an older Sergeants exam in error, which did not coincide with the list of study materials sent to all candidates." On or about April 8, 2004, the test for promotion to Sergeant was re-administered, but Plaintiff refused to take it on the grounds he had already passed it. See Plaintiffs' Amended Complaint, ¶ 43. 7) The cumulative actions taken by Defendants against Plaintiff as provided herein, including, but not limited to, denying Plaintiff promotion, discrediting Plaintiff's character, improperly disciplining Plaintiff, allowing several employees to utter racial epithets and slurs without appropriate corrective action, and otherwise making Plaintiff's working conditions difficult, collectively created a hostile

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working environment in violation of Title VII. Complaint, ¶ 44.

See Plaintiffs' Amended

Plaintiffs filed a charge of discrimination with the EEOC on February 15, 2002, referencing discrete acts allegedly constituting a hostile work environment, discrimination and retaliation. On June 7, 2004, Plaintiffs filed a second charge of discrimination, referencing additional discrete acts allegedly constituting a hostile work environment, discrimination and retaliation. Materials Reviewed · · · · · · · · · · · · · · · · · · · · · · · · · Complaint Motion for Summary Judgment (MSJ) Response to MSJ Response to Motion to Dismiss Joint Case Management Plan Pinal County Sheriff's Office Discipline Policy Manual & Internal Affairs Policy Manual Pinal County Personnel Policies & Procedures Wage & Salary Administration (Revisions through September 27, 2000) Pinal County Human Resources Exit Interview Pinal County ­ Personnel Department Personnel Action Form Pinal County Personnel Files Pinal County Policy and Procedure ­ Unlawful Discrimination and/or Harassment Pinal County Human Resources Department Interoffice Memorandum State of Arizona Peace officer Standards and Training Board Case Status Report Lieutenant's Promotional Process Final Results (June 14, 2001) Pinal County Sheriff Department Internal Job Change Applications Pinal County Sheriff's Department Completed Training Summary Report, by Employee Pinal County Policies, Procedures, and Rules (May 7, 2002) Raymond W. Roerdink ­ Summary of Capabilities Pinal County Employment Opportunity for Lieutenant (November 16, 1999) Confidential Memorandum on Numeric Assignment of Assessors / Assessment Center Pinal County Sheriff's Office Lieutenant Assessment Center Policies (June 11-13, 2001) Sergeant Applications ­ dated 2/13/04 Pinal County Human Resources Department Administration Receipt on new/revised Personnel Policies and Procedures Pinal County Human Resources Department Interoffice Memorandum Employee Training Sexual Harassment

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· · · · · · · · · · · · ·

Memorandum from Roger Vanderpool to Robert Gant, Regarding the Lieutenant's Grievance on Assessment Center filed on June 15, 2001 Pinal County Board of Supervisors Memorandum on Length-of-Service Adjustments, dated February 19, 1994 Memorandum on Review of Salary Scale from Robert Gant to Mike Arnold, Human Resources, dated May 18, 2000 Facsimile to Gant from Michael S. Arnold on Gant's Base Salary Certificate of Hazardous Materials Training ­ Robert R. Gant Arizona Law Enforcement Officer Advisory Council ­ Certificate of Attendance, to Robert R. Gant Pinal County Sheriff's Department Uniform Allowance Reimbursement for Robert Gant Tax Documents of Robert Gant (W-4s) Arizona State Retirement Fixed Benefit Plan Enrollment Form by Robert R. Gant Pinal County Job Description for Corporal (RT) Pinal County Classification Specification ­ Sergeant Classification Specification ­ Lieutenant Robert Gant's Promotion Denial Letter from Frank R. Reyes, Sheriff of Pinal County, Arizona, dated January 19, 1995

Qualifications Dr. Jay M. Finkelman, Ph.D., C.P.E. is Interim Systemwide Dean in charge of the California School of Business and Organizational Studies and Program Director and Full Professor of the Organizational Studies Division of CSBOS at Alliant International University. He teaches the advanced elective doctoral level course entitled Forensic Issues in Employment, focusing on the human resource management issues in employment and discrimination litigation, as well as the doctoral level course in Human Resources Management. Dr. Finkelman served as a manager, consultant and expert witness in Employment, Staffing and Human Resources Management for over two decades. He has had hundreds of retentions, over one hundred depositions, and testified at trial 33 times (approximately equally for plaintiff and defense). Dr. Finkelman is an Industrial and Forensic Psychologist as well as a Certified Professional Ergonomist. He holds a Ph.D. in Industrial / Organizational Psychology from New York University and an M.B.A. in Industrial Psychology from the Bernard M. Baruch School of Business of The City College of The City University of New York. He was a tenured full professor of Industrial Psychology at The City University of New York as well as Dean of Students at Baruch College. He also served on the Doctoral Faculty in Business, specializing in Organizational Behavior, at the Graduate Center of C.U.N.Y. Dr. Finkelman served in a variety of senior line management positions after leaving C.U.N.Y. - including 13 years in the staffing and employment industry. He was founding

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partner of Staffing Advisors, Inc., a team of staffing industry veterans who collaborate to provide an array of advisory and support services to staffing firms. Dr. Finkelman holds a Diplomate from the American Board of Professional Psychology and from the American Board of Forensic Psychology where he is also a fellow. He is a Certified Personnel Consultant from the National Association of Personnel Consultants and a Certified Employment Specialist from the California Association of Personnel Consultants. He is a licensed psychologist in the State of California and in the State of New York and is listed in the National Register of Health Service Providers in Psychology. He is a member of Psi Chi, Delta Sigma Rho ­ Tau Kappa Alpha and Beta Gamma Sigma, and received the Excellence In Teaching Award from C.U.N.Y. Dr. Finkelman is a member of the Industrial Psychology and Engineering Psychology Divisions of the American Psychological Association, the Human Factors and Ergonomics Society and the American Academy of Forensic Psychology. Dr. Finkelman specializes in Human Resources, staffing industry management practices, employment discrimination (gender, age, race, disability), sexual harassment, ADA (Americans with Disabilities Act), conflict of interest, negligent hiring/retention, wrongful termination, adverse impact, performance appraisal, psychometrics, statistical analysis, human factors and ergonomics. Los Angeles contact information: Alliant International University, California School of Organizational Studies, 1000 S. Fremont Avenue, Unit 5, Alhambra, CA 91803 phone: 626-284-2777 ext. 3160 fax: 626-284-0554 email: [email protected] Publications Finkelman, J. M. (1994). A Large Database Study of the Factors Associated with WorkInduced Fatigue. Human Factors, 36(2), 232-243. Finkelman, J. M. (2000). The Dysfunctional Manager. Staffing Industry Review (SIReview), V(3), 106-108. Finkelman, J. M. & Editors (2000). Vendor On Premises Programs - A 10 Year Retrospective. Staffing Industry Reports, August. Finkelman, J. M. (2000). Choosing an Effective Board of Directors. Staffing Industry Review (SIReview), V(5), 114-122. Finkelman, J. M. & Editors (2000-2001). Special Report - Vendor On Premises ­ Sophistication in Services Becomes Competitive Strength. Staffing Industry Sourcebook, 243-245. Finkelman, J. M. (2001). Managing For Effective Performance. Staffing Industry Review

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(SIReview), VI(2), 85-88. Finkelman, J. M. (2001). Vendor On Premises Programs for the Next Century. Staffing Industry Review (SIReview), VI(2), 30-36. Finkelman, J. M. (2001). Exploiting Downsizing While Avoiding Meltdown. Staffing Industry Review (SIReview), VI(3), 14-16. Finkelman, J. M. (2001). Do The Right Thing. Staffing Industry Review (SIReview), VI(4), 72-76. Finkelman, J. M. (2001). Why Staffing Industry CEOs & General Managers Fail. Staffing Industry Review (SIReview), VI(6), 38-40. Finkelman, J. M. (2002). The Expert Witness in Employment Litigation (chapter). Expert Witness Update 2002 Edition, Aspen Law & Business. Finkelman, J. M. (2002). Especially in Tough Times, Management Matters. Staffing Industry Review (SIReview), VII(1), 61-64. Finkelman, J. M. (2002). Enhancing Performance With Recognition & Incentives. Staffing Industry Review (SIReview), VII(3), 27-29. Finkelman, (2002). J. M. Managing Your Sales Force For Greater Productivity. Staffing Industry Review (SIReview), VII(4), 25-27. Finkelman, J. M. (2002). Restructuring Sales & Service. Staffing Industry Review (SIReview), VII(5), 29-31. Finkelman, J. M. (2002). Gaining Perspective ­ Listening to the Marketplace. Staffing Industry Review (SIReview), VII(6), 44 - 46. Finkelman, J. M. (2003). Use a Valid Test, or Don't Test At All. Staffing Industry Review (SIReview), VIII(1), 49-52. Finkelman, J. M. (2003). Performance Appraisal Programs Can Be Hazardous. Staffing Industry Review (SIReview), VIII. Finkelman, J. M. (2003). Taming The Reckless Manager. Staffing Industry Review (SIReview),VIII(4), 28-31. Finkelman, J. M. (2003). If It Hurts, Don't Do It ­ Correcting Dysfunctional Management. Staffing Industry Review (SIReview),VIII(6), 40-41. Finkelman, J. M. (2003). Doing More With Less Without Burning Staff. Staffing Industry Review (SIReview),VIII(6), 18-22.

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Finkelman, J. M. (2003). "Opportunistic" Staffing Strategy: Maximizing Customer Relationships. Staffing Industry Review (SIReview), VIII(10), 30-34. Finkelman, J. M. (2003). Managing Your Sales Force. Staffing Industry Review (SIReview), IX(3), 24-28. Finkelman, J. M. (2003). Enhancing Performance With Recognition & Incentives. Staffing Industry Review (SIReview), VIII(3), 34-36. Finkelman, J. M. (2003). Taming the Reckless Manager: Inoculating Your Company Against Sexual & Racial Harassment Claims. Staffing Industry Review (SIReview), VIII(4), 28 ­ 31. Finkelman, J. M. (2004) Sales Management Best Practices. Staffing Industry Review (SIReview), Finkelman, J. M. (2004). Testing the Testing Programs: Distinguishing High Quality from High Risk. Contingent Workforce Strategies, 1.1, 26-27. Finkelman, J. M. (2004). Make Sure You're In the Know. Contingent Workforce Strategies, 1.2, 13 & 35. Finkelman, J. M. (2004). Sexual Harassment ­ The Organizational Perspective. Chapter in Women, Law & Psychology, Andrea Barnes, Editor, in press. Finkelman, J. M. (2004). What Business Are We Really In? Gaining Profitable Market Share. Staffing Industry Review (SIReview), IX (5), 50-53. Finkelman, J. M. (2004). Transparency in Management Competence. Staffing Industry Review (SIReview), IX (9), 24-27. Finkelman, J. M. (2004). Take Charge of Your Training. Contingent Workforce Strategies, 1.3, 12-13. Finkelman, J. M. (2004). The Ins and Outs of Vendor-on-Premises Programs. Contingent Workforce Strategies, 1.4, 14-15. Finkelman, J. M. (2004). Don't Hesitate to Ask. Contingent Workforce Strategies, 1.5, 12-13. Finkelman, J. M. (2004). Satisfaction For All: Motivating A Contingent Workforce. Contingent Workforce Strategies, 1.6, 28-31. Finkelman, J. M. (2004). Let the Good Times Roll. Staffing Industry Review (SIReview), IX, in press.

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Finkelman, J. M. (2004). Who's The Boss? Contingent Workforce Strategies, in press. Finkelman, J. M. (2005). Contingent Strategies. You need to know what makes a good VOP program before you can demand one. (pp.12-13). Los Altos, CA: Staffing Industry Analyst, Inc. Finkelman, J. M. (2005). Contingent Strategies. Setting quality standards for suppliers can yield continuous improvement. (pp.15-16). Los Altos, CA: Staffing Industry Analyst, Inc. Finkelman, J. M. (2005). Contingent Workforce Strategies. Review your staffing supplies on a regular basis. (pp.14-15) Los Altos, CA: Staffing Industry Analyst, Inc. Finkelman, J. M. (2005). Contingent Workforce Strategies. Here's one gift horse you should look in the mouth. (pp.14-15) Los Altos, CA: Staffing Industry Analyst, Inc. Finkelman, J. M. (2005). Legal and Forensic Issues In Management. Special Issue Editor for The Psychologist-Manager Journal, in press. Finkelman, J. M. (2005). Jury Perception of Employment Litigation. The PsychologistManager Journal, in press. Finkelman, J. M. (2005). Legal and Forensic Issues In Management: The Human Resource Management and Risk Management Perspective. The PsychologistManager Journal, in press. Trial Testimony 2000 2000 2001 2001 2001 2001 2002 2002 P Ishimaru v. Vario (Breach of Contract/Negligence) Santa Clara Superior Court P Bruns v. Henry (Human Factors) Solano County Superior Court P Pineda v. Able Building Maintenance Co. (Gender Discrim) San Francisco Superior Court P Farmer v. Add Staff (Negligent Background Checking/Negligent Misrepresentation) Colorado District Court D Moore v. County of Nevada (Constructive Discharge-Damages) Nevada County Superior Court D Synergy Staffing v. Westaff (Staffing-Damages) Binding Arbitration ­ San Francisco P Kotla v. Regents Univ. of Cal. dba LLNL (Gender Discrim/Wrong Term/Whistler Blower) Alameda Superior D May v. Cal. State Univ. (Monterey Bay) (Race

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2002 2002 2002 2002 2003 2003 2004 2005 2005 2005 2005 2005

Discrim/ADA/Retaliation/Wrongful Term) Monterey Superior Court D Goodman v. Tickets.com (Wrongful Termination/Breach of Contract) Los Angeles Superior Court D Foti v. Aventis Pharmaceuticals (ADA/Constructive Discharge) Marin Superior Court P Mascarenas v. Kaiser Permante (Race Discrim/Constructive Discharge) Alameda Superior Court P Sims v. National University (Retaliation/Whistle Blower) Binding Arbitration ­ San Francisco D Kennedy v. Chevron U.S.A. (Conflict of Interest/Retaliation/Wrong Term) Contra Costa Superior Court D Hobbs v. HRS (Gender discrimination/Retaliation/Harassment) San Francisco Superior Court P Pico v. UC Regents dba LLNL (ADA/Wrongful Term) Alameda Superior Court D Norwood v. Stanford (Race Discrimination/Retaliation) US District Court No. District of CA P Kotla v. Regents Univ. of Cal. dba LLNL (Gender Discrim/Wrong Term/Whistler Blower) Alameda Superior Court P Garcia v. Napa County Juvenile Hall (Sexual Harassment/Retaliation) Napa County Superior Court D Hays v. UCSF (Assault/Harassment/Improper Investigation) San Francisco Superior Court P Davenport v. Donald T. Sterling (Sex Harassment/Retaliation) LA Superior Court

Deposition Testimony 1992 1992 1992 1992 1992 1993 1993 1993 1993 1993 1994 1994 1994 1994 1994 1995 P Straley v. Becton-Dickinson (Human Factors/Employment Practices) P Hollway v. Snelling (Negligent Hiring/Retention) P Mauer v. Western Industrial Management (Human Factors/Sex Discrim) D Jolley v. Grubb & Ellis (Wrongful Term/Conflict of Interest) P Jimeno v. Mobil Oil Corporation (Human Factors/Disability Discrim) P Rupp v. Nordstrom (Wrongful Term/Sexual Preference) P IBM v. Zachariades (Conflict of Interest) D Thompson v. Thrifty Corporation (Constructive Discharge) P Cobb v. USC (Race Discrim/Constructive Discharge) P Bonsangue v. ADP (Constructive Discharge/Age Discrim) D Tahvildari v. First Interstate Bank of California (Wrongful Term/Discrim) D Anderson v. Thrifty (Constructive Discharge/Sex Discrim) P Rothman v. Ocean House (Negligent Hiring/Retention) D Phelps v. Lewis, D'Amato, Brisbois & Bisgaard (Wrongful Term/Sex Discrim) D Rothenberg v. Saturn (Sexual Harassment) D Rodriguez v. Thrifty Corporation (Sexual Harassment)

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1995 1995 1995 1996 1996 1997 1998 1998 1998 1999 1999 1999 1999 1999 2000 2000 2000 2000 2000 2000 2001 2001 2001 2001 2001 2001 2001 2000 2002 2002 2002 2002 2002 2002 2003 2003 2003 2003

P Nemeth v. International Union of Operating Engineers (Sexual Harassment) D Doerr v. J.C. Penney (Age Discrim) D Martin v. Texaco (Sex Discrim) D John Doe v. Randolph & Hein (Wrongful Term/AIDS Discrim) D Garringer v. Viking Freight System (Wrongful Term) D Pederson v. National Broadcast Company (Age Discrim) D Pedroza v. Fashion 21 (Race Discrim) D Amador v. County of L.A. (Age & National Origin Discrim) D Cawthon v. Community Housing Services (Sexual Harassment/Discrim) D Warr v. Intermountain Staffing (Negligent Background) D A.Z. v. Libertas Healthcare Facility (Negligent Hiring) P Folb v. Motion Picture Industry Pension & Health Plans (Age Discrim/Wrongful Term) D Ramsey v. WMC Mortgage Corp (Sexual Harassment) P Pagter v. First Alliance Mortgage Co. (Fraud/Negligent Misrepresentation) P Lappa v. Regents Univ. of Cal. dba LLNL (Constructive Term/Whistle Blower) P Bruns v. Henry ­ Arbitration Hearing (Human Factors) P Ishimaru v. Vario Inc. (Breach of Contract/Negligence) D Goodman v. Tickets.com (Wrongful Termination/Breach of Contract) P Bruns v. Henry (Human Factors) P Ramirez v. Kroonen (Race Discrimination) P Salem v. NASD (Contract/Age Discrimination) D Express Staffing Services v. Hill (Staffing Franchise/Conspiracy) P Farmer v. Add Staff (Negligent Background Checking/Negligent Representation) D Moore v. County of Nevada (Constructive Discharge) P Creggett v. Tosco Refining Company (Wrongful Term/Whistle Blower) D Perry v. Marriott (Sexual Harassment/Discrim) P Kotla v. Regents Univ. of Cal. dba LLNL (Gender Discrim/Wrongful Term/Whistle Blower) D May v. Trustees of Cal. State Univ. (Monterey Bay) (Race Discrim/ADA/Retaliation/Wrongful Term) D Swet v. Starwood Hotels (Sexual Harassment) P Sims v. National University (Wrongful Term/Whistle Blower) D Foti v. Aventis Pharmaceuticals (Constructive Term/ADA) P Garner v. Univ. of Cal. (Santa Cruz) (Race Discrimination) P Mascarenas v. Kaiser (Race/Religious Discrimination & Harassment) D Haddock v. Thrifty Payless (Age Discrimination) D Ortiz v. Roadway Express (Race Harassment/Retaliation) D Richter v. Wink Communications (Gender Discrimination/Retaliation) D Hobbs v. URS (Gender Discrimination/Retaliation/Harassment) D Woo v. Southbayside System Authority (Gender Discrimination/Retaliation)

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2004 2004 2004 2004 2004 2004 2005 2005 2005 2005 2005

D Jeffries v. Santa Clara Water District (Race Discrimination/Retaliation) Pico v. UC Regents dba LLNL (ADA/Wrongful Term) D Rivera v. NIBCO (Discrimination/Literacy) P Johnson v. Department of Corrections (Race/Gender Discrimination/Harassment/Retaliation) D Thornquist v. The University of California, UCSF-Fresno (Disability Discrimination, Retaliation, Defamation) D Dao v. The University of California, Berkeley (Disability Discrimination, Wrongful Termination) P Johnson v. Dept. of Corrections (Race/Gender Discrimination /Harassment/Retaliation) P Garcia v. Pepsi (Race Discrimination/Harassment/Retaliation) P Kotla v. Regents Univ. of Cal. Dba LLNL (Gender Discrim/Wrongful Term/Whistle Blower) P Garcia v. Napa County Juvenile Hall (Sexual Harassment/Retaliation) P Davenport v. Donald T. Sterling (Sex Harassment/Retaliation)

Opinions Human Resources Management (HRM) is a sub discipline of Industrial/Organizational Psychology. Over the years there has evolved a pattern of policies and practices that are consistent with good human resource management policies and practice. While there is typically more than one acceptable way to accomplish human resource objectives, there are absolute prohibitions on discriminatory practices or consequences that adversely impact employees - based on gender, age, race, etc. - and, of course, on sexual or racial harassment and on retaliation. In essence, good human resource management practices are primarily designed to preclude opportunities for discrimination, harassment and retaliation. Thus, human resource policies and practices that are considered to be consistent with generally accepted human resource management policies and practices - are those that protect against unlawful discrimination, harassment and retaliation. Human resource management has a dual constituency and dual responsibilities within organizations. It must safeguard the rights of employees and protect them from unlawful practices (discrimination, harassment and retaliation) while also protecting the organizations from the liability associated with improper policies and practices. Typically, the best way to accomplish both objectives is to insure that good human resource management policies and practices are in place ­ namely ones that protect employees from discrimination, harassment and retaliation. Penal County has not accomplished the first objective of safeguarding the rights of employees and protecting them from unlawful practices, in my opinion.

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Generally accepted human resource management practices allow for a variety of approaches to accomplish these objectives. These include such techniques as preventive training, vigilant monitoring, management coaching, proper postings of employee rights and complaint channels, effective employee and management manuals, prompt and effective investigations of allegations of improper conduct, user friendly complaint procedures and mechanisms, appropriate disciplinary procedures and mechanisms to preclude retaliation, among others. It is also important to note that merely having these approaches and techniques doesn't insure that they will be used effectively. That is, in large measure, a responsibility of vigilant management to insure compliance and employee protection. Penal County does not appear to have taken the reasonable and proper steps to protect its employees. A few specific observations are in order: 1) Sheriff Vanderpool altering the testing procedure after plaintiff passed the written test for promotion (with the second highest score) - and without even having the authorization of the Pinal County Merit Commission ­ is not consistent with generally accepted human resources management policies and practices. 2) If Deputy Gonzalez accurately reported to Sheriff Vanderpool that Chief Deputy Harold Campbell had asked Deputy Gonzalez if he should have a separate promotion list for "Chicanos, one for gringos, and one for blacks" and further stated that "it breaks my heart to see you guys not doing as well on the test as everyone else. Blacks, well we know they're not as smart as us." ­ it should have triggered an immediate race discrimination and harassment investigation. Such racially insensitive (at best) comments are completely inappropriate from a human resources management perspective and should not be tolerated. 3) If Plaintiff was terminated for allegedly falsifying his Thanksgiving Day time sheet when Plaintiff was following long standing custom and practice in the Sheriff's Office about how to report holiday time, that would be inconsistent with generally accepted human resource management practices requiring consistent treatment of all similarly situated employees. Singling out a protected group member for an adverse job action may be seen as discriminatory. 4) Similarly, if an applicant for promotion who had failed the written test was nevertheless promoted by Sheriff Vanderpool, as alleged in Plaintiff's grievance, that inconsistent treatment may also be seen as discriminatory ­ unless failing the written test was not supposed to be a factor considered in promotion. 5) It is generally understood, within human resources management, that promotional notices or announcements should include all requirements for a position that an applicant will need to have in order to be qualified for the position. If a notice or announcement is silent as to a requirement, the process becomes suspect if requirements appear to be selectively imposed later in the process. This opens the possibility of discriminatory treatment of certain applicants ­ and is not an

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acceptable HRM practice. It is my understanding that Plaintiff was not allowed to take the promotional test for Lieutenant after he was reinstated because the Sheriff's Office claimed he had to have been a Sergeant immediately prior to the test, which fact was not stated in the notice published by Pinal County advertising the promotion. 6) Plaintiff was the only applicant out of 13 persons to pass the written test for promotion to the rank of Sergeant, but the Sheriff's Office said they would need to eliminate 18 questions that were improperly included. Upon rescoring the test, Plaintiff was still the only person to pass the test, at which point the Sheriff's Office said the entire test would have to be re-administered. From an HRM perspective, it might be understandable that a test needs to be rescored ­ if there is sufficient empirical psychometric justification. Typically you would expect that the top scoring applicant (and the only person to pass) on the original test still be selected and that the rescored test only be used to select applicants for the remaining positions ­ since none of them passed the original test. Once the test has been rescored ­ and the results do not change (with plaintiff alone passing once again) ­ it becomes highly suspect, unfair and psychometrically indefensible that the entire test be re-administered ­ without at least first selecting the only applicant who passed both times. 7) From an HRM perspective, you would never return an employee who has complained about discrimination or harassment to the same environment and supervision (without his or her permission) if there are any viable alternatives available. Depending upon the severity of the situation, in some circumstances you would not return an employee to the same environment and supervision regardless of whether there are any viable alternatives. It is my understanding that since Plaintiff's reinstatement, he has been required to work in the same region with accountability to the same supervisor under conditions that are the same as those that existed prior to the settlement agreement being reached. This is not an acceptable human resource management practice. 8) It is my understanding that Plaintiff has been stripped of any supervisory responsibilities, even though his position is that of a supervisor. If this was done in response to his complaint, it is clearly unacceptable from an HRM perspective. Otherwise it is incumbent upon management to explain and justify this adverse job action. 9) It is my understanding that Plaintiff's termination sidestepped the multi-step disciplinary process called for in Pinal County's Merit Rules and was for a relatively minor infraction. If an organization professes to employ a progressive disciplinary process, it is obligated to abide by that process except in the case of extraordinary employee misconduct, such as carrying a weapon to work or attacking another employee.

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10) The use of assessment centers for selection and promotion is a highly equivocal practice. To have predictive or criterion related validity it must be based on a professionally conducted job analysis and be carefully conducted and monitored and incorporate appropriate safeguards to protect against discrimination and bias. Finally, it must be validated for the situation in which it is to be used, to insure that the results and recommendations have merit and that the overall process correctly measures what it purports to predict with respect to future job performance. The utility and vulnerability of assessment centers has been reviewed by many industrial-psychologists over the decades. Summary of Opinions It appears as though Pinal County and the Sheriff's Office did not employ generally accepted Human Resources Management policy and practice with respect to the treatment of the Plaintiff, Robert Gant, as he sought promotion to Lieutenant and as he complained about discriminatory treatment. The actions taken by Defendants against Plaintiff, including the denial of promotion, excessive and inconsistent discipline, and permitting a racially charged environment to continue without taking appropriate corrective action is inconsistent with generally acceptable Human Resource Management policies and practices and is not acceptable in the workplace. Mr. Gant should have been given greater consideration in the testing process, especially considering his top performance on the first two scorings. The assessment center technique needs a professionally conducted job analysis and validation study to justify its inclusion in the promotion process.

_s/ Jay M. Finkleman, Ph.D._______ Jay M. Finkelman, Ph.D. Los Angeles, California November 12, 2005

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