Free Report re: Rule 26(f) Planning Meeting - District Court of Arizona - Arizona

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Georgia A. Staton, 004863 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 602-263-1752 [email protected] Attorneys for Defendants

5 6 7 8 9 Plaintiff(s), 10 11 12 13 Defendant(s). 14 15 16 17 18 19 20 21 22 23 24 25 26 left the PCSO to work for the Arizona Department of Corrections and another police department, respectively. In 1988, Mr. Gant returned to the PCSO and was promoted Counsel for the parties have met and conferred pursuant to Rule 16 and Rule 26(f) of the Federal Rules of Civil Procedure, and hereby submit the following Case Management Plan for the Court's review to be used at the Case Management Conference scheduled for October 3, 2005 at 2:30 p.m., Sandra Day O'Connor U.S. Federal Courthouse, 401 West Washington Street, Phoenix, Arizona 85003. I. NATURE OF THE CASE A. Factual and Legal Basis of Plaintiff's Claims v. Roger Vanderpool, Sheriff of Pinal County; Pinal County, a political subdivision; John Does and Jane Does I-X; ABC Corporations I-X; and XYZ Partner-ships I-X, (Assigned to the Honorable Earl H. Carroll) JOINT PROPOSED CASE MANAGEMENT PLAN UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Robert Gant and Betty Gant, Husband and Wife, NO. CV 03-2077-PHX-EHC

Robert Gant began working for the PCSO in 1980. Mr. Gant worked as a Deputy and an Undercover Detective with the PCSO from 1980 until 1985, at which time he

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to the rank of Corporal in 1991. Mr. Gant was again promoted to the rank of Sergeant in 1998. Mr. Gant remained employed with the PCSO until his termination by Defendant Vanderpool and Defendant Pinal County on February 8, 2002. Mr. Gant filed a complaint in the Superior Court of Pinal County, Case No. CV200200638, on June 14, 2002, alleging, inter alia, that Roger Vanderpool, Pinal County, and other parties had discriminated against him on the basis of his race and age in violation of the Arizona Civil Rights Act, the Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of 1964, and that his termination was wrongful under Arizona state law. The parties in the preceding case reached an out-of-court settlement of all claims and charges, and entered into a settlement agreement (the "Settlement Agreement") on or about August 9, 2002. The Settlement Agreement was signed by Robert Gant, Roger Vanderpool, and an unnamed representative for Pinal County.

17 18 19 20 21 22 23 24 25 26 2 Case 2:03-cv-02077-EHC Document 64 Filed 09/19/2005 Page 2 of 26 pay and benefits from February 8, 2002, when he was terminated, until August 9, 2002; and 3) the Order for Disciplinary Action that had been served on Robert Gant would be amended, dropping two charges and retaining one charge. The Settlement Agreement detailed, inter alia, three specific actions to be taken by the parties thereto, as follows: a) Mr. Gant would be reinstated to full-time employment with the PCSO, with demotion to the rank of Corporal; b) Mr. Gant would receive back

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In negotiating for the Settlement Agreement, the parties had agreed that Mr. Gant would be assigned to Region Three within the PCSO, which assignment the parties believed would allow Mr. Gant to serve in his employment free from much of the discriminatory activity and conduct that had prompted his filing of the complaint in civil court. The assignment to Region Three was a material part of the basis and motivation for Mr. Gant executing the Settlement Agreement. In fact, since the execution of the Settlement Agreement, Mr. Gant has been assigned to Region One, reporting to the same Lieutenant who had openly participated in the discriminatory conduct against Mr. Gant that had formed the basis, in part, for his filing of the civil complaint. Mr. Gant has made repeated requests since his reemployment to be assigned to Region 3, as the parties had agreed in negotiating the Settlement Agreement, but Defendant Vanderpool and Pinal County have denied each and every request. The

17 18 19 20 21 22 23 24 25 26 3 Case 2:03-cv-02077-EHC Document 64 Filed 09/19/2005 Page 3 of 26 attempt to bring Mr. Gant under the disciplinary procedures of the PCSO for the apparent purpose of making the working conditions so difficult and hostile that Mr. Gant had no option but to quit his employment. discriminatory activity and conduct that preceded the Settlement Agreement has once again surfaced, but in greater vigor, as Mr. Gant has been the subject of continued attempts and veiled threats by Defendant Vanderpool to discredit Mr. Gant's character and to

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Mr. Gant has not quit his employment but has continued to serve in his capacity as Corporal. In fact, Mr. Gant applied for the position of Lieutenant on or about March 30, 2003, in response to an announcement made by Pinal County that an opening for the position of Lieutenant existed. Despite meeting the qualifications for the position, as detailed in the announcement, Mr. Gant's application was withdrawn by the PCSO for no apparent reason. In an apparent attempt to further aggravate M r. Gant, Defendant Vanderpool and Pinal County have stripped him of most of his duties and responsibilities, such that Mr. Gant now functions in name only as a Corporal, and has been reduced to performing strictly administrative duties. Defendant Vanderpool and Pinal County have taken these actions in violation of the employee handbook used by the PCSO, which handbook identifies the specific duties, responsibilities, and authority of an employee in the position of Corporal, and in violation of the Age Discrimination in Employment Act of 1967

17 18 19 20 21 22 23 24 25 some of the test questions related to study materials that were not available. Upon 26 4 Case 2:03-cv-02077-EHC Document 64 Filed 09/19/2005 Page 4 of 26 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 ("ADEA") and Title VII of the Civil Rights Act of 1964 ("Title VII"). 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

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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. On or about June 7, 2004, Plaintiff filed a second Charge of Discrimination with the EEOC, Charge No. 350-2004-03883, again alleging discrimination on the basis of race and age and retaliation by the Sheriff's Department. Plaintiff immediately requested a Right to Sue letter. The cumulative actions taken by Defendants against Plaintiff as provided herein,

17 18 19 20 21 22 23 24 25 26 5 Case 2:03-cv-02077-EHC Document 64 Filed 09/19/2005 Page 5 of 26 conditions difficult, collectively created a hostile working environment in violation of Title VII. 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

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Legal Basis Age Discrimination: Under the Age Discrimination in Employment Act ("ADEA"), employers are prohibited from failing or refusing to hire or discharging an individual or otherwise discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). A plaintiff alleging discrimination under the ADEA may prove either disparate treatment or disparate impact. EEOC v. Local 350 Plumbers & Pipefitters, 998 F.2d 641, 648 (9 th Circ. 1992). A plaintiff may prove disparate treatment by either direct or indirect evidence. Phipps v. Gary Drilling Co., 722 F. Supp. 615, 618 (E.D. Cal. 1989). Where the plaintiff presents direct evidence of discrimination, then the burden of proof shifts to the defendant. Price Waterhouse v. Hopkins, 490 U.S. 228, 244 (1989). The burden of persuasion, however, remains with the plaintiff. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).

17 18 19 20 21 22 23 24 25 employee's rejection. Should the defendant carry this burden, the plaintiff must then 26 6 Case 2:03-cv-02077-EHC Document 64 Filed 09/19/2005 Page 6 of 26 Coin Caterers Corporation, 517 U.S. 308 (1996)(citing Teamsters v. United States, 431 U.S. 324, 358 (1977). If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the In the absence of direct evidence, a plaintiff must first make out a prima facie case of discrimination by "evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion . . . ." O'Connor v. Consolidated

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prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973); Nesbit v. Pepsico, Inc., 994 F.2d 703, 704 (9 th Cir. 1993). Race Discrimination: A plaintiff can establish a prima facie case of disparate treatment if he provides evidence suggesting that the "employment decision was based on a discriminatory criterion illegal under the [Civil Rights] Act." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 (1977). When the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial. Godwin v. Hunt Wesson, 150 F.3d 1217 (9 th Cir. 1998). The amount of direct evidence need be "very little." Lindahl v. Air France, 930 F.2d 1434, 1438 (9 th Cir. 1991); see also Cordova v. State Farm Ins., 124 F.3d 1145, 1150 (9 th Cir. 1997) (direct evidence of race discrimination where employer referred to a Mexican-American employee as a "dumb Mexican."); Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995) (fire chief's derogatory comments about Hispanics create inference of discriminatory motive). "Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Davis v. Chevron, U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994) (alterations in original, quotations and citations omitted).

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If Plaintiff cannot produce direct evidence of discrimination, retaliation, and a hostile work environment, Plaintiff may establish a prima facie case of discrimination with circumstantial evidence under the McDonnell Douglas burden-shifting analysis. Bodett v. CoxCom, 366 F.3d 736, 743 (9 th Cir. 2004). Under this analysis, Plaintiff must prove that: (1) (2) (3) (4) he belongs to a protected class; he was performing the job satisfactorily; he suffered an adverse employment action; and other employees with the same qualifications were treated more favorably.

See Vasquez v. County of Los Angeles, 349 F.3d 634, 646 (9 th Cir. 2004); see also McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). To establish a prima facie case of retaliation, Plaintiff must show that: (1) he engaged in a protected activity; he suffered an adverse employment action, and there is a causal link between the two.

17 18 19 20 21 22 23 24 25 was severe or pervasive enough to alter the conditions of employment. Manatt v. Bank 26 8 Case 2:03-cv-02077-EHC Document 64 Filed 09/19/2005 Page 8 of 26 Hostile Work Environment: In order to establish a prima facie case of a racially hostile work environment, Plaintiff must prove that: (1) he was subjected to physical or verbal conduct because of his race; (2) the conduct was unwelcome; and (3) the conduct (2) (3)

Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1113 (9 th Cir. 2003)

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of America, 339 F.3d 792, 798 (9 th Cir. 2003). If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Should the defendant carry this burden, the plaintiff must then prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973); Nesbit v. Pepsico, Inc., 994 F.2d 703, 704 (9 th Cir. 1993). Negligent Supervision: To establish a prima facie case of negligence, Plaintiff must prove: (1) the existence of a duty recognized by law, obligating the defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the breach and the injury; and (4) actual damages. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983). Whether a duty exists is a question of law to be decided by the court. Bach v. State, 152 Ariz. 145, 147, 730 P.2d 854, 856 (App. 1986).

17 18 19 20 21 22 23 24 25 26 9 Case 2:03-cv-02077-EHC Document 64 Filed 09/19/2005 Page 9 of 26 11/26/01: Plaintiff claims he is working on Thanksgiving Day, but stays home with his family. B. Factual and Legal Basis of Defendants' Claims

In order to simplify the facts in this case, they are presented in serial fashion. 6/01: Plaintiff applies for promotion to Lieutenant, but is denied because he fails to achieve a passing score on the Assessment Center portion of the test. The implementation of the "IN BOX" Assessment Center portion of the promotion process was designed to test a candidate's ability to respond to real world law enforcement issues.

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02/08/02:

Pinal County fires Plaintiff for falsifying his time sheet on Thanksgiving Day. Plaintiff files a charge of discrimination with the EEOC alleging race and age discrimination arising out of his termination. Plaintiff appeals his dismissal to the Pinal County Merit Commission. He receives a Right to Sue letter from the EEOC. He files suit in Pinal County Superior Court. He settles his Merit Commission appeal with the Sheriff's Department and receives a demotion instead of dismissal. As part of the Settlement Agreement, he agrees to release Pinal County from any and all claims arising out of his termination. The Settlement Agreement does not restrict Plaintiff to any particular assignment or location.1 In accordance with the Settlement Agreement, Plaintiff returns to work and is assigned to serve civil process. He is assigned to a centralized location and later transferred to Region One. Plaintiff was assigned to serve civil process because he had been disciplined

02/15/02:

02/19/02: 03/16/02: 06/14/02: 08/09/02:

08/09/02:

The Settlement Agreement contains a release of Defendants: "of and from all and any manner of action and actions, cause and causes of action, suits, claims and demands whatsoever, in law or in equity, against Pinal County, its officials, employees, agents and assigns, I have had, now have or which my heirs, executors, or administrators, hereafter can, shall or may have for any cause of action arising out of the Order for Disciplinary Action issued on February 08, 2002 by the Pinal County Sheriff's Department against Robert Gant and his subsequent dismissal from employment."

1

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for dishonesty and would, therefore, be a liability to the County Prosecutor if called to testify in a later criminal trial. Plaintiff applies for a promotion from Corporal to Lieutenant. Plaintiff is not eligible to test for the promotion, because the M erit Commission Rules require applicants to be a Sergeant for one year immediately preceding the promotion. Plaintiff files this lawsuit in federal District Court on October 27, 2003 alleging race and age discrimination, as well as common-law claims for negligent hiring/supervision and intentional infliction of emotional distress. Plaintiff claims that the County has not assigned him to Region Three per the terms of the August 9, 2002 Settlement Agreement, attempted to discredit his character and discipline him, failed to promote him in March 2003, and stripped him of most of his duties and responsibilities by requiring him to serve civil process. Plaintiff serves a Notice of Claim against Pinal County. Plaintiff applies for a promotion to Sergeant and takes the written portion of the Sergeant's promotion test. The Human Resources Department inadvertently gives out the incorrect test. The test is out-dated and contains questions from General Orders that were no longer in use. Human Resources throws out the test and requires all applicants to take the correct test. Plaintiff's Superior Court lawsuit is dismissed for lack of prosecution. Plaintiff refuses to retake the correct test for the Sergeant's promotion.

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06/07/04:

Plaintiff files another charge of discrimination with the EEOC alleging he was wrongfully assigned to serve civil process, not promoted to Lieutenant in March 2003, and not promoted to Sergeant in March 2004.

Plaintiff was not promoted because he failed to pass tests given to all candidates. Neither race nor age played a factor in is inability to be promoted. This Court granted summary judgment to all Defendants on the following claims/counts: (1) That upon return to duty on August 9, 2002, Plaintiff was assigned to serve civil process; that he was sent to Region One; and that he was assigned to the same Lieutenant who allegedly discriminated against him. (See Order, p. 9). That on March 30, 2003, Plaintiff was not promoted to Lieutenant. (Order, p. 7). Count 5 2 premised on the Arizona Civil Rights Act. (Order, p. 11). Count 7 3 Intentional Infliction of Emotional Distress. (Order, p. 13).

(2)

(3) (4)

The Court granted summary judgment to the County on Plaintiff's claim in Count 6 4 based on negligent hiring of Sheriff Vanderpool. (Order, p. 12).

2

Count 4 in original Complaint. Count 6 in original Complaint. Count 5 in Amended Complaint. 12

3

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The Court granted summary judgment to Sheriff Vanderpool on Plaintiff's claim in Count 3 based on use of the Assessment Center in 2001 promotional process. (Order, p. 10). As a result of this Court's February 5, 2005 Order, the only incidents of alleged discrimination that remain are: (1) Allegations of discrimination based on Plaintiff's failure to be promoted to Lieutenant on 6/15/01; His termination for falsifying time sheets on 2/8/02; and The allegations of hostile work environment presented in Plaintiff's Amended Complaint.

(2) (3)

Allegations (1) and (2) were the subject of a state court action that was resolved by a settlement agreement negotiated between the parties, which provided that it was to serve as the entire agreement between the parties and release the Defendants from future claims based on those allegations. As a result, allegations (1) and (2) should not now be the basis for a new or revived cause of action. Furthermore, the Agreement provides that if Gant breaches the Agreement, he must pay Pinal County's fees and expenses.

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These same allegations form the basis for Plaintiff's hostile work environment claim. The amended complaint adds factual allegations regarding the incorrectly administered Sergeant's examination and action taken by Defendants with relation to all test-takers, not just the Plaintiff. No discrimination, therefore, occurred. C. Count One - Age Discrimination

In order to show that the County violated the ADEA, the Plaintiff must prove by a preponderance of the evidence that: (1) (2) He was over the age of 40, and He performed his job satisfactorily and was qualified to be promoted, and He was not promoted "because of" his age.

(3)

The Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq.; see also, Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9 th Cir. 2004). 3. Plaintiff always has the burden of proving that the Defendants intentionally

discriminated against him because of his age. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141 (2000); Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1343-1344 (9 th Cir. 1987).

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D.

Count Tw o - Race Discrimination

To establish a prima facie case of race discrimination, Gant must prove that: 1) 2) 3) 4) he belongs to a protected class; he was qualified for his position; he was subject to an adverse employment action; and similarly situated individuals outside his protected class were treated more favorably. Chuang v. University of Cal. Davis, 225 F.3d 1115, 1123-24 (9 th Cir. 2000). (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

If Gant establishes these elements, the burden of production, but not of persuasion, shifts to the County to articulate a legitimate and non-discriminatory reason for the alleged action. If the County does so, then Gant must show that the articulated reason is pretextual. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). The elements of a prima facie case of retaliation require that Plaintiff show: (1) involvement in a protected activity; (2) that he suffered an adverse employment action; and, (3) a causal connection between the two. Ray v. Henderson, 217 F.3d 1234, 1240 (9 th Cir. 2000). As with claims of race discrimination, if Plaintiff established a prima facie case of retaliation the burden shifts to the County to articulate a legitimate non-

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discriminatory reason for its decision. Id. at 1240. If the County articulates such a reason, Plaintiff bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory motive. Id. E. Count Three - 42 U.S.C. § 1983 Claim

The Court, in its Order on Defendants' Motion for Summary Judgment, dismissed Defendant Vanderpool as to this count. As a result, only the Defendant Pinal County remains. In order to prevail on his § 1983 claim, Plaintiff must prove the same elements as in his Title VII claim. In addition, he must prove discriminatory intent. Washington v. Davis, 426 U.S. 229 (1978). If Plaintiff's Title VII claim fails then his § 1983 claim fails as well. See Sischo-Nownejad v. Merced Comm'ty College, 934 F.2d 1104, 1112 (9 th Cir. 1991). Further, because his claim is a § 1983 claim, Plaintiff must base it on a constitutional violation. Plaintiff's Complaint, however, does not identify any violation under the United States Constitution which forms a predicate for this cause of action. /// /// ///

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F.

Count Four (Amended Complaint) - 42 U.S.C. § § 2000e-Hostile Work Environment

Plaintiff's Amended Complaint adds a new cause of action. It is Defendants' position that Plaintiff's new claim fails because it is not timely and cannot be revived as a "hostile work environment" claim. The acts forming the basis of this claim occurred more than 300 days before Plaintiff filed his June 7, 2004, Charge of Discrimination. An employee may recover on a hostile work environment theory for an act that occurred outside the 300 day filing period, only if the act is related to a timely allegation in the Charge of Discrimination. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002). In other words, both acts (the untimely and timely ones) must be a part of the same alleged hostile work environment. The only timely allegation (filed within 300 days) in the June 7, 2004 Charge is that Plaintiff was not promoted to Lieutenant in March 2004. However, that allegation is not related to the 2001 promotional process, the remarks allegedly made in 2001 by then-Chief Deputy Campbell, or Plaintiff's termination in 2002. In order to establish the existence of a racially hostile work atmosphere, Plaintiff must prove that: (1) he was subjected to verbal or physical conduct because of his race,

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(2) the conduct was unwelcome and (3) the conduct was severe or pervasive enough to alter the conditions of employment. Manatt v. Bank of Am., 339 F.3d 792, 798 (9 th Cir. 2003). He must prove more than a few isolated incidents of racial enmity and the alleged harassment must be sufficiently pervasive to create an abusive working environment. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Manatt v. Bank of Am., 339 F.3d 792, 798 (9 th Cir. 2003); Snell v. Suffolk County, 782 F.2d 1094 (2 nd Cir. 1986). The Plaintiff has the burden of proving, by a preponderance of the evidence, a prima facie case. If Plaintiff succeeds in this proof, he is entitled to a transitory presumption of discrimination. The burden shifts briefly to the Defendants to articulate some legitimate, non-discriminatory reason for its employment decision. If the Defendants meet this burden, the presumption raised by the Plaintiff's prima facie case is rebutted and the burden then shifts back to the Plaintiff to prove that the reasons given by the employer were a pretext for a discriminatory motive. Costa v. Desert Palace, Inc., 299 F.3d 838 (9th Cir. 2002) (en banc) (setting forth the legal standard for proof of a violation of Title VII), affirmed 539 U.S. 90 (2003).

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 /// /// stand.

G.

Count Five - Arizona Civil Rights Act 41-1401 et seq.

Although this claim remains in Plaintiff's Amended Complaint, it was dismissed by the Court in its Order on Defendant's Motion for Summary Judgment. H. Count Six - Negligent Hiring/Supervision

In its Order, this Court dismissed the Negligent Hiring claim but, citing A.R.S. § 11-251, let the Negligent Supervision claim remain. A.R.S § 11-251 states that the Board of Supervisors "may" supervise county officials. Further, the case law makes clear that a county has "no right of control" over county officials. Yamamoto v. Santa Cruz County Bd. Of Supervisors, 124 Ariz. 538, 540 (1979), Fridena v. Maricopa County, 18 Ariz. App. 527, 530 (1972). Since the County does not have a duty to supervise the Sheriff and has no right of control over him, a claim for Negligent Supervision cannot

I.

Count Seven - Intentional Infliction of Emotional Distress

Although this claim remains in Plaintiff's Amended Complaint, it was dismissed by the Court in its Order on Defendant's Motion for Summary Judgment.

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II.

FACTUAL AND LEGAL ISSUES GENUINELY IN DISPUTE. PLAINTIFF: · · · Was defendants' conduct motivated by Plaintiff's age? Was defendants' conduct motivated by Plaintiff's race? Did defendants' retaliate against Plaintiff when Plaintiff was not allowed to promote? Was the settlement agreement null and void because Plaintiff was assigned to work in the same region where the discriminatory activity had occurred? Did the County have a duty to supervise its employees and prevent discrimination, retaliation, and a hostile work environment? Did the County arbitrarily establish a testing component that was discriminatory against Plaintiff because of his race?

·

·

·

DEFENDANT: 1. 2. 3. 4. 5. Were Defendants' actions motivated by Plaintiff's age? Were Defendants' actions motivated by Plaintiff's race? Was Plaintiff qualified for the positions he sought? Did Defendants retaliate against Plaintiff? Was there a causal link between Plaintiff's complaints about Title VII violations and any adverse employment action taken by Defendants?

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 V. 22 23 24 25 26 /// IV. III.

6. 7.

Was the conduct of which Plaintiff complained severe or pervasive? Did the conduct of which Plaintiff complained affect the terms and conditions of his employment? Did the conduct of which Plaintiff complained create an abusive working environment? Was the Settlement Agreement reached in August 2002 is a full and complete release thus barring some or all of Plaintiff's claims. Is Plaintiff's request for punitive damages barred pursuant to A.R.S. § 12820.04 for all state-based claims and as to any request against Pinal County or Sheriff Vanderpool acting in his official capacity pursuant to City of Newport v. Fact Concerts, Inc., 101 S.Ct. 2748 (1981) and Smith v. Wade, 461 U.S. 30 (1983)? Can the County be held liable under a theory of negligent supervision?

8.

9.

10.

11.

JURISDICTIONAL BASIS OF THE CASE . This Court has jurisdiction pursuant to 42 U.S.C. § 2000e-5 and 29 U.S.C. § 626. THE PARTIES, IF ANY, THAT HAVE NOT BEEN SERVED. None. THE NAMES OF PAR TIES NOT SUBJECT TO THE COURT'S JURISDICTION. None.

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VI.

WHETHER THERE ARE FURTHER DISPOSITIVE OR PARTIALLY DISPOSITIVE ISSUES TO BE DECIDED BY PRE-TRIAL MOTIONS. Plaintiff: None. Defendant: None anticipated at this time although Defendants reserve the right to file such

a motion on the hostile work environment claims which was added in the Amended Complaint. VII. WHETHER THE CASE IS SUITABLE FOR REFERENCE TO ARBITRATION, MASTER OR UNITED STATES MAGISTRATE JUDGE FOR TRIAL. Plaintiff is willing to consider alternative dispute resolution, including arbitration. Plaintiff does not seek to refer this case to a United States Magistrate Judge. Defendants have no objection to reference to a magistrate judge. VIII. STATUS OF RELATED CASES PENDING BEFORE OTHER JUDGES OF THIS JURISDICTION OR BEFORE OTHER COURTS. None. /// ///

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IX.

STATEMENT OF WHEN INITIAL DISCLOSURES WERE MADE OR WILL BE MADE. The parties exchanged their initial Disclosure Statements on February 17, 2004.

However, given the new hostile work environment claim, the parties agree to provide any supplemental disclosures by October 14, 2005. X. PROPOSED DEADLINES FOR: A. Completion of Discovery - If the Court allows additional discovery, it shall be completed by January 15, 2006. Filing Dispositive Motions - It is not anticipated that any further dispositive motions will be filed, however any such motions shall be filed by February 15, 2006. Disclosure of Expert Testimony - Expert testimony shall be disclosed by Plaintiff on or before November 14, 2005. Defendant will disclose expert testimony by December 14, 2005. Joint Pre-Trial Statement - 30 days after the close of discovery, or 30 days after the court's ruling on dispositive motions.

B.

C.

D.

XI.

ESTIMATED LENGTH OF TRIAL . Plaintiff:

22 23 24 25 26 23 Case 2:03-cv-02077-EHC Document 64 Filed 09/19/2005 Page 23 of 26 5 days.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 /// /// /// XV. XII.

Defendant: 7 days. WHETHER A JURY TRIAL HAS BEEN REQUESTED. Both parties request a jury trial. XIII. PROSPECTS FOR SETTLEMENT. The parties are open to settlement discussions and have engaged in early discussions, but have not yet considered what, if any, alternative dispute resolution methods may be appropriate. At the appropriate time, the parties are willing to entertain settlement discussions. XIV. REFERENCE TO THE COMPLEX TRACK FOR CASE MANAGEMENT PURPOSES. None. OTHER MATTERS WHICH WILL AID IN THE DISPOSITION OF THIS MATTER. None at this time.

24 Case 2:03-cv-02077-EHC Document 64 Filed 09/19/2005 Page 24 of 26

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RESPECTFULLY SUBMITTED this 19th day of September, 2005. JONES, SKELTON & HOCHULI, P.L.C. By s/Georgia A. Staton Georgia A. Staton 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants RESPECTFULLY SUBMITTED this 19th day of September, 2005. LAW OFFICE OF ROBERT M. GREGORY, P.C.

By

s/Georgia A. Staton (With permission - see attached) Robert M. Gregory, Esq.5 2737 West Southern Avenue Suite 8 Tempe, AZ 85282 Attorney for Plaintiffs

ORIGINAL of the foregoing e-filed this 19 th day of September, 2005 with: Clerk of the U.S. District Court District of Arizona

5

Signed by Georgia A. Staton with permission by Robert M. Gregory. 25

Case 2:03-cv-02077-EHC

Document 64

Filed 09/19/2005

Page 25 of 26

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1525764_1

COPIES of the foregoing mailed this 19 th day of September, 2005, to: Hon. Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 521 401 West Washington Street, SPC 48 Phoenix, AZ 85003-2151 602-322-7530 Robert M. Gregory, Esq. LAW OFFICE OF ROBERT M. GREGORY, P.C. 2737 West Southern Avenue Suite 8 Tempe, AZ 85282 Attorney for Plaintiffs 602-373-0109 s/Gwen M. Coon

26 Document 64 Filed 09/19/2005 Page 26 of 26

Case 2:03-cv-02077-EHC