Free Reply to Response to Motion - District Court of Arizona - Arizona

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LAW OFFICE OF ROBERT M. GREGORY, P.C. Robert M. Gregory, State Bar No. 021805 1930 S. Alma School Road, Suite A-115 Mesa, Arizona 85210 Tel: (480) 839-4711 Fax: (480) 452-1753 Attorney for Plaintiffs

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

ROBERT GANT and BETTY GANT, husband and wife,

) ) ) Plaintiffs, ) ) vs. ) ) ROGER VANDERPOOL, Sheriff of Pinal ) County; PINAL COUNTY, a political ) subdivision; JOHN DOES, I­X; JANE ) DOES, I­X; ABC-XYZ CORPORATIONS I- ) X; BLACK AND WHITE PARTNERSHIPS ) I-X, jointly and severally, ) ) Defendants. ) ) )

Case No. CV 03-2077-PHX-EHC PLAINTIFFS' REPLY TO DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL

(Assigned to the Honorable Earl H. Carroll)

Plaintiffs belatedly submit their Reply to Defendants' Response to Plaintiffs' Motion for Judgment as a Matter of Law or, in the alternative, Motion for a New Trial. I. JUDGMENT AS A MATTER OF LAW At the close of evidence, the Court, sua sponte, may grant Judgment as a Matter of Law if "there is no legally sufficient evidentiary basis for a reasonable jury to find for [a] party on [a given] issue." Fed. R. Civ. P., Rule 50(a)(1). The Court's entry of judgment as a matter of law "is appropriate when the evidence permits only one reasonable conclusion. The evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must

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be drawn in favor of that party. If conflicting inferences may be drawn from the facts, the case must go to the jury." LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000) (citations omitted). The focus of a ruling on a Motion for Judgment as a Matter of Law is whether a reasonable jury reached a reasonable conclusion drawn from the evidence, with reasonable inferences drawn in favor of the nonmoving party. The uncontroverted evidence presented at trial showed that: · In March, 2001, Defendant Pinal County distributed an announcement for a lieutenant's examination indicating that a written examination and oral board would be required; · On May 10, 2001, Plaintiff Robert Gant took and passed the examination with the second highest score; · On June 11-12, 2001, an "assessment center" was administered in place of the oral board; · On September 19, 2001, three months after the assessment center was administered, Pinal County's merit rule handbook was revised to reflect that the assessment center was an approved form of testing; · Since its implementation, the assessment center was required for all persons seeking advancement to the rank of sergeant or lieutenant; · From 2001 to 2004, at least 18 persons were promoted to sergeant or lieutenant after implementation of the assessment center without being required to submit to the assessment center; · Roger Vanderpool denied Robert Gant's grievance regarding the assessment center on the grounds that Mr. Gant didn't have the requisite 70% score; · Mike Arnold testified that there is no required score for passing the assessment center, and that Pinal County can set a different passing score for each examination; · At least one other individual was promoted to lieutenant even though he did not have a passing score of 70%;

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· Robert Gant was the first and only person ever terminated by Roger Vanderpool for working from home on Thanksgiving Day; · Roger Vanderpool first sent out notice of his Thanksgiving Day work policy one year after the incident giving rise to Robert Gant's termination; · Several officers received comparatively little or no discipline even though their offenses included "clear deception" over a period of years, raping a civilian, or using racially derogatory language; · The assessment center was created using the industry guidelines as the "primary tool" to develop and conduct the assessment center; · The industry guidelines were ignored by the defendants in several major respects, even though the guidelines stated that ignoring these components would invalidate an assessment center; · Using the assessment center to make "real life" decisions to promote or not promote, when the assessment center had not been formally approved by Pinal County until three months after its administration, was a clear violation of acceptable human resource practice; · It is commonplace practice in the human resource industry to not use an assessment center to make "real life" job decisions when it is first implemented, so that the process may be validated to ensure that bias does not occur; · On March 16, 2004, Robert Gant was the only person out of 13 persons to pass the examination for sergeant, with a score of 98% · The sergeant's examination would be rescored, throwing out invalid questions; · Robert Gant was the only person out of 13 persons to pass the rescored examination, with a revised score of 100%; · The sergeant's examination was then thrown out altogether. The above evidence was not controverted by Defendants and was, in fact, supported by the testimony of Defendants' witnesses, Roger Vanderpool, Mike Arnold, and Samuel Weiss.
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Instead, Defendants argued that their collective actions were reasonable on the following grounds: · Robert Gant was given notice of the assessment center before it was administered, even though the Defendant's had no evidence of any notice being sent to Robert Gant (Defendant's instead proffered a memorandum distributed to general circulation); · Robert Gant's termination was justified because he failed a polygraph examination, even though such evidence is not admissible, Defendants' proffered such evidence to the jury (on closing argument) after being instructed not to do so, and another officer had failed a stress examination but was not disciplined; · Sam Weiss justifiably ignored the guidelines that he had cited as the primary tool on which he relied because he had participated in assessment centers in the past, even though Pinal County and the Sheriff's Office had never given an assessment center before June 2001; · The March 2004 sergeant's examination was thrown out because of "manifest error" in the administration of the test, even though Mike Arnold acknowledged that it would have been fair to promote Robert Gant. Reasonable inferences drawn from the evidence presented at trial support only one conclusion ­ that Pinal County and Roger Vanderpool discriminated against Robert Gant and violated his constitutional rights. Assuming arguendo that conflicting inferences are drawn in favor of Defendants ­ that Robert Gant did have notice of the assessment center, that his termination was fair, and that the administration of the March 2004 sergeant's examination was manifest error ­ these inferences do not by themselves or collectively explain away evidence for which there is no conflicting evidence, which evidence yields only one reasonable conclusion. For the foregoing reasons, Plaintiffs respectfully request that the Court find that there is and was only one reasonable conclusion, that Defendants did, in fact, discriminate against Robert Gant and did, in fact, violate his constitutional rights.

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II.

MOTION FOR A NEW TRIAL The Court may grant a new trial under Rule 59 "if the verdict is against the clear weight

of the evidence." Landes Const. Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987; see also Byrd v. Blue Ridge Rural Elec. Co-op, Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 902 (1958) ("The trial judge in the federal system . . . has discretion to grant a new trial if the verdict appears to him to be against the weight of the evidence." For the reasons provided herein in Section I, supra, Plaintiffs respectfully request that the Court find that the weight of the evidence was in favor of Plaintiffs, and order a new trial. III. DEFENDANT'S CLOSING ARGUMENT DEFIED A COURT ORDER The Court directed Defendant to not further discuss the evidence regarding the polygraph examination administered to Robert Gant in that the Court, and the Ninth Circuit, had determined that polygraph examinations are inadmissible evidence. Defendants' argument that Plaintiffs did not object during its closing argument when evidence of the polygraph examination was nonetheless proffered, thereby making such argument procedurally appropriate, is both transparent and offensive. Defendants' introduction and emphasis of the polygraph during closing argument irreparably compromised the integrity of the proceedings by: (1) ignoring a direct order to not introduce such evidence; (2) placing the burden upon Plaintiffs to enforce a Court order, when Defendants were well aware of the instructions regarding the same; (3) putting Plaintiffs in the untoward position of having to object during Defendants' closing argument, for the ostensible purpose of giving greater emphasis to that which should not have been introduced at all; and (4) creating grounds for a mistrial if Plaintiff had objected. Defendants should not be rewarded for conduct that is clearly in violation of the Court's order and, at a minimum, contemplative of creating a mistrial. IV. CONCLUSION For the foregoing reasons, Plaintiff Robert Gant respectfully requests that the Court vacate the jury verdict, and direct Judgment as a Matter of Law in favor of Plaintiff. In the alternative, Plaintiff requests that the Court order a new trial in this matter.
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RESPECTFULLY SUBMITTED this 1st day of February, 2007. LAW OFFICE OF ROBERT M. GREGORY, P.C. By: s/Robert M. Gregory Robert M. Gregory Attorney for Plaintiffs

CERTIFICATE OF SERVICE I certify that I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants, and mailed a copy of same to any non-registrants this 1st day of February, 2007: Georgia A. Staton JONES, SKELTON & HOCHULI, P.L.C. 2901 N. Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants

s/Robert Gregory

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