Free Response to Motion - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _________________

ROBERT GANT AND BETTY GANT, ) et al., ) ) Plaintiffs, ) ) vs. ) ) ROGER VANDERPOOL, et al., ) ) Defendants. ) ____________________________)

No.

CV 03-2077-PHX-EHC

Phoenix, Arizona October 31, 2006 1:56 p.m.

BEFORE:

THE HONORABLE EARL H. CARROLL, JUDGE

REPORTER'S EXCERPTED TRANSCRIPT OF PROCEEDINGS CLOSING ARGUMENTS APPEARANCES: For the Plaintiff: Law Office of Robert M. Gregory By: Robert Miles Gregory, Esq. 1930 South Alma School Road, Suite A-115 Mesa, Arizona 85210 For the Defendant: Jones, Skelton & Hochuli By: Georgia A. Staton, Esq. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Official Court Reporter: Candy L. Potter, RMR, CRR Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, Spc 36 Phoenix, Arizona 85003-2151 (602) 322-7246 Proceedings Reported by Stenographic Court Reporter Transcript Prepared by Computer-Aided Transcription Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 Page 1 of 51

2 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 MR. GREGORY: Thank you, Your Honor.

Ladies and gentlemen, from the outset I wish to thank you for your attention and service on this jury. I also wish

to thank opposing counsel for her time and efforts. This is a case about racial discrimination and a racially hostile work environment. The evidence that you have heard and seen, the same evidence on which you will decide this case is before you, shows a very haunting picture of how far Pinal County and the Pinal County Sheriff's Office, through Sheriff Vanderpool, was willing to go in order to enforce its decisions and deviated from the laws that were established to protect employees. I'm not going to show you any exhibits today. It's
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my objective to share with you the facts of the case and talk about the history of how we came here this day. The plaintiff, Robert Gant, has worked in law enforcement for 30 years. Over that 30 year period he
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steadily promoted in rank from deputy to detective to corporal, and then sergeant. Most of those 30 years
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Robert Gant has spent in the employment of the Pinal County Sheriff's Office. On May 10th, 2001, less than five months after Sheriff Vanderpool took office, Robert Gant took a written examination for promotion to the rank of lieutenant, which was the logical next step in his career. Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 2 of 51

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3 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 On the date that he took that written examination, Mr. Gant received the second highest score of 86 percent. After passing the examination, Mr. Gant was informed that he would be required to submit to an Assessment Center, a testing process that Pinal County and the Sheriff's Office had never before offered or required of police officers seeking promotion. The testimony that you heard from Sheriff Vasquez indicated that Robert Gant had no notice of the Assessment Center. In fact, the announcement that was published by Pinal
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County Human Resources Office in preparation for the lieutenant promotion process indicated that a written examination would be given, followed by an oral board, but not an Assessment Center. Mr. Gant relied on that announcement. And in fact,
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prepared for a written examination and an oral board, an oral board which never occurred. Mike Arnold, Human Resource Director for Pinal County, testified that Pinal County did not adopt the Assessment Center as an approved testing process until September 19th, 2001, more than three months after Mr. Gant was required to submit to the Assessment Center. At the conclusion of the Assessment Center, Mr. Gant was disqualified within the promotion process and his name was taken off the eligibility list. Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 3 of 51
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4 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 Mr. Vanderpool testified that since its adoption, the adoption of the Assessment Center on September 19th, 2001, all persons in the Sheriff's Office seeking promotion to the rank of sergeant and lieutenant were required to take the Assessment Center as part of the promotion process. However, he also testified based on the evidence before him that at least 18 persons had been promoted to the position of sergeant since September 19th of 2001, who never went through the Assessment Center process. Importantly, Robert Gant was not one of those 18 persons who was promoted. Mr. Gant filed a grievance after the Assessment Center concluded, which grievance he filed with Sheriff Vanderpool. Sheriff Vanderpool summarily denied
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Mr. Gant's grievance on the grounds that he had not acquired the 70 percent score required. However, Mike Arnold testified that with respect to Assessment Center tests and processes, there was no required score, that Pinal County was free to set the passing score at whatever rate for any examination it so choose -- chose. You heard testimony from Dr. Jay Finkelman about the validity of the Assessment Center process. Dr. Finkelman

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testified that it is commonplace in the human resource industry to not use the Assessment Center to make real time, real job decisions on the first time that Assessment Center is Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 4 of 51
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5 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 being offered. Dr. Finkelman further testified that the purpose of an Assessment Center the first, and in fact several times around, is to validate the Assessment Center in terms of whether or not it is measuring what it was designed to measure, whether or not the assessors are adequately trained, and whether or not the process complies with industry guidelines. Dr. Finkelman further testified that the decision by Pinal County to use the Assessment Center on June of 2001, on a real live basis, such that decisions regarding whether to promote or not to promote, as was the case with Robert Gant, when the County did not adopt that Assessment Center until more than three months after the test, is a clear violation of acceptable human resource practice. Sam Weiss testified that he created the Assessment Center, and was responsible for operating and conducting its Center on behalf of Pinal County and the Sheriff's Office. He
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also testified that he used industry guidelines as his, quote, primary tool in conducting the Assessment Center. However, he also testified that he rejected those guidelines with respect to how assessors should be trained. Those industry guidelines specified that at least at a minimum 32 hours of training should have been conducted for a two-day Assessment Center. Sam Weiss testified that he provided five Page 5 of 51
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Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT

6 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 hours of training. These same guidelines that Mr. Weiss used as his primary tool in implementing and conducting the Assessment Center provide, quote, the importance of assessor training cannot be overemphasized, end of quote. And that, quote,
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failure to use assessors adequately trained in the Assessment Center method in and of itself will cause any process to not be an Assessment Center, end of quote. The Assessment Center, as it was called by the Pinal County Sheriff's Office and Pinal County was, per the industry guidelines upon which they relied, not an Assessment Center at all. It may have been a panel or commission, but it was not
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an Assessment Center. You've also heard and seen evidence of how Pinal County and the Sheriff's Office, through Roger Vanderpool, applied its own policies and procedures in a discriminatory manner. In response to disciplinary notices about Sergeant Ty Morgan regarding clear deception that he had shown over a period of several years, Sheriff Vanderpool elected not to demote him, not to terminate him, but to give him a letter of reprimand, was his testimony, even though three superior officers of Ty Morgan, Sergeant Morgan, had recommended termination. In justifying his action, Chief Deputy Hal Campbell Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 6 of 51
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7 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 testified that -- who was the number two law enforcement officer in Pinal County -- that the administration of Sheriff Vanderpool had agreed to look forward. The same Chief Deputy Campbell was accused by several persons, a fellow officer, a citizen, and an investigator, of making racial and ethnic slurs. Sergeant Angelo Gonzales testified in August of 2001 Chief Deputy Campbell asked him if he should have one list for Chicanos, one for Gringos, and one for Blacks. And it breaks
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his heart to see you guys not doing as well on the tests. Blacks, well, we know they're not as smart as us. to this Sergeant Gonzales filed a complaint. Chief Deputy Campbell admitted in testimony that during the investigation he told an investigator, quote, there has been a few times during all of this when I've thought, tall tree, short rope. When asked about this statement, he said, that's -- that's the same where I come from, it means, hang them high. In response to this complaint and the admissions made by Hal Campbell during the investigation, Sheriff Vanderpool disciplined Hal Campbell by sending him to a diversity training class. Sergeant Doug Brown testified in this matter and testified that he felt that Chief Deputy Campbell had asked Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 7 of 51 In response

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8 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 him to lie during the investigation or survey by the Arizona Attorney General into complaints of discrimination. Sergeant Brown also testified that Chief Deputy Campbell called Allen Miles a nigger. And that if another
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officer had taken care of Allen Miles, they would not be having this problem now with this nigger. Sergeant Brown further testified that Chief Deputy Campbell told Sergeant Brown to put some of our Black people in a lineup, because they're always accusing him of not including the Blacks in things. Sheriff Vanderpool testified in court that when he received this information from Sergeant Brown in the form of a letter it, quote, knocked the wind out of him. However, no

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disciplinary action was taken against Chief Deputy Campbell. Sheriff Vanderpool testified that on January 31st, 2001, approximately four weeks after he took office, Sergeant Charles Jordan was accused of raping an unconscious woman, to whom Sergeant Jordan had responded in the line of duty. And
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the woman had testified under investigation that when she was becoming conscious, she saw Sergeant Jordan putting his pants back on. Sheriff Vanderpool testified that he did not terminate Sergeant Jordan, he demoted him. However, Mr. Gant was accused of staying home on November 22nd, 2001, Thanksgiving day, and that he had Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 8 of 51
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9 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 falsified his time records. Even though we heard testimony of

a longstanding practice in Pinal County of officers being allowed to stay home and work on the holidays. We also heard testimony that Robert Gant received no phone calls from dispatch that day requiring him to come into the field. That he was prepared to do so.
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For this alleged offense, Mr. Gant was investigated and terminated. When Mr. Gant appealed his termination to the Pinal County Merit Commission, he was reinstated to the Sheriff's Office. However, demoted in rank from sergeant to corporal.
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And later all of his supervisory rights in this new position were removed. You heard testimony from Sheriff Vanderpool that he did not provide any notice to Robert Gant that if he stayed home on Thanksgiving day that he would be terminated. In
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fact, when asked if Robert Gant had any warning that he would be terminated if he stayed home, Sheriff Vanderpool said no. It was not until one year later in November of 2002, Sheriff Vanderpool testified, that he first sent out a written notice regarding the policy of staying home on holidays. Robert Gant was humiliated by what happened to him. However, he persevered in his career path and in trying to improve himself. On March 16th, 2004, he took an examination offered Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 9 of 51
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10 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 by the Sheriff's Office for promotion to the rank of sergeant. He was one of 13 persons who took that examination, and the only person who passed that examination with a score of 98 percent. After the test results were returned, an investigation was commenced by Pinal County Human Resources and the Sheriff's Office acting together. And a decision was
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made to throw out some of the questions and have the test rescored. When the test was rescored, Sergeant Gant was still the only person who passed the test with a revised score of 100 percent. It was at that point that the decision was made by Pinal County to throw out the test all together. When asked
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if there were any alternatives that could have been taken other than throwing out the test, human resource director Mike Arnold said no. You also heard testimony from Mike Arnold that the new test that was offered in place of the original test was actually a lesser version of the original test, requesting that the officers look at a shorter time period of Sheriff management regulations than had been required on the original test. Ladies and gentlemen, you have heard all the evidence in this case. This evidence clearly shows that the actions of Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 10 of 51

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Case 2:03-cv-02077-EHC

11 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 much. That's the opening statement on behalf of plaintiff. We've been about 45 minutes, and that's a long time for the court reporter as well. So it's a quarter after 2:00, we'll take a recess for 20 minutes until 25 minutes of 3:00, and then go ahead with the defense argument, and then proceed to the rebuttal. then just a few additional instructions. So remember now during this recess as well, don't talk about the case, don't talk about the instructions, don't make up your mind about any of these matters at all. Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 11 of 51
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Pinal County and the Sheriff's Office, through Sheriff Vanderpool, constituted racial discrimination, age discrimination, created a racially hostile work environment, and inflicted emotional distress on Robert Gant. Robert Gant is asking only that you look at the evidence in the light that it's been offered, draw the references -- inferences that are -- that you can make from the testimony that's been given and on the documents that have been admitted into evidence, and draw the conclusion that he was, in fact, discriminated against by Pinal County in violation of their own policies, in violation of the laws of the United States and the Constitution, and find for him. Thank you. THE COURT: All right. Very well. Thank you very
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And

12 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 longer. (Jury in at 2:38 p.m.) THE COURT: of the jury. All right. Miss Staton. Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 12 of 51 Be seated, please.
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And be back in the jury room to come in at the time I said, 25 minutes of 3:00. So we'll take a recess now for the jury and for counsel and for the court reporter. (Jury out at 2:12 p.m.) THE COURT: All right. Be seated. Just let the jury
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get started, if they want to leave the floor. You might check on them, Bobbi, and see if they do that. THE CLERK: THE COURT: I think those that are leaving have left. All right. Well, remember now, stay away
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from where the jurors are, elevators, hallways, restrooms, any of those matters. And continue to do that.

So we'll be in recess until 25 of 3:00 o'clock. (Recess at 2:14 p.m., until 2:38 p.m.) THE COURT: All right. We'll have the jury back in.
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Approximately how long do you expect you'll be, Miss Staton? MS. STATON: Approximately 45 to 50 minutes, no
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All right.

Thank you very much, members

13 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 MS. STATON: Thank you.

May it please the Court, Counsel, ladies and gentlemen. On a few occasions did Hal Campbell say things that were just wrong? Yes. Should he have said them? No.
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Was it Hal Campbell's decision to use the Assessment Center as part of the promotional process? No.

Did Hal Campbell have anything whatsoever to do with plaintiff not getting promoted to lieutenant in June of 2001 after he failed the assessment center? No.
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Was it Hal Campbell's decision to terminate plaintiff in February 2002 after he falsified his time sheets? Was Hal Campbell working in the Pinal County Sheriff's Office after May of 2002? No.
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No.

Did Hal Campbell have anything to do with voiding the wrongfully given sergeant's exam in March of 2004? No.

Lastly, does Hal Campbell have anything to do with this lawsuit? No.

So you have to ask yourself, why did plaintiff focus so much attention on Hal Campbell throughout this trial? Well, first, he's an easy target. And second, if you can get him -- if they can get you to focus on Hal Campbell, then the hope is that you won't be focused on the plaintiff's own lack of skill, on his own lack of ability, and on his own misconduct. Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 13 of 51
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14 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 In order to prove that he was discriminated against on the basis of race, the plaintiff has to prove one of two things: He has to prove either that race was the sole reason

for not being promoted, or that it was a motivating factor in him not being promoted. What evidence, what evidence did the plaintiff present that his race was the sole factor, the sole reason he wasn't promoted to lieutenant in June of 2001? is none. Ladies and gentlemen, instruction number 21, and this is a part of it that the Court has already read, and you'll have all of it in your jury room, and it says that the plaintiff has the burden of proving both of the following elements by a preponderance of the evidence. That the plaintiff wasn't promoted. Well, he wasn't, we all know that. But they also have to prove that the plaintiff was not promoted solely because of the plaintiff's race. Race wasn't the sole reason, it wasn't any reason. It was because he didn't measure up. promoted. Jury instruction number 23, it's almost the same except it says that, under number 2, that the plaintiff's race was a motivating factor. That means, was it part of the
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And the answer

That's why he wasn't

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decision-making process as to why he wasn't promoted in June Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 14 of 51

15 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 of 2001? Plaintiff's race wasn't a part of the decision or a part of the equation at all. It was never considered. And

there's no evidence to that effect. If it wasn't the sole reason he wasn't promoted, and it wasn't the motivating reason he wasn't promoted, then you under the law cannot find for plaintiff on his claim of race discrimination. Ladies and gentlemen, claims of discrimination are very, very easy to make, you just say it. proof are two entirely different things. What facts have been presented in this courtroom to prove that race played any part in Sheriff Vanderpool's decision not to promote plaintiff to lieutenant? answer is none. When Roger Vanderpool became Sheriff in 2001, he wanted to professionalize that office. and it was dysfunctional. It was disorganized And the
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But claims and

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And he knew then that the key to

professionalizing that office was to promote managers on the basis of merit, not on who was friends with whom. Promoting someone just because they'd been around for a long time, or helped the other sheriff, the prior sheriff get elected, that's just wrong. You don't do it that way.
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That was the old sheriff's way of doing things, and it wasn't fair. And Roger Vanderpool wanted no part of it. Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT He wanted a Page 15 of 51
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Case 2:03-cv-02077-EHC

16 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 better way. He wanted to let the sun shine into what had

previously been a very closed, secret process. He testified, Roger Vanderpool testified that he knew about Assessment Centers, he'd gone through those processes himself when he was at the Department of Public Safety, and he thought that would be the best tool to help him select the next lieutenant. And that's when he asked Mike Arnold, the director of county human resources, if county personnel rules would permit the use of an Assessment Center in selecting a lieutenant. And he was told by the expert, yes, it would. And you saw and you heard Mike Arnold, ladies and gentlemen. He's a man who knows his business. He knows every
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County rule, and he knows how it applies.

He's not some ivory
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towered professor, like Jay Finkelman, who reviewed only the limited information that plaintiff's attorney spoon fed him. Jay Finkelman had no idea who the assessors were, he didn't know their background, he didn't know how the center operated, he didn't review the plaintiff's work product, the memos that he wrote as part of the in-basket exercise. didn't even look at the videotapes that were made of everybody's performance. He had no clue as to what questions He had no idea as to how each He

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were asked of the candidates. candidate performed.

Yet he came into this courtroom and he offered his Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 16 of 51

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17 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 it. opinions that using the Assessment Center was problematical and equivocal. Jay Finkelman is a man who knows nothing, but has an opinion about everything. There's a jury instruction, ladies and gentlemen, on expert witnesses, and it fits Jay Finkelman to a T. Because
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it says, as part of that instruction, that you may accept an expert or opinion evidence or reject it, give it whatever weight you think it deserves. And I would suggest to you, ladies and gentlemen, that you should reject Jay Finkelman's opinion. Mike Arnold testified that he examined County Personnel Rule Number 4, and he looked carefully at that Rule, the Rule that was in existence at the time. fit. And he said, it
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In his professional judgment, an Assessment Center could

be used, because it is, in fact, an examination, it is related to the job at hand, it is determined for the purpose of -- used for the purpose of determining the suitability of those who are most qualified, and the examinations shall be rated impartially. And when he looked at that rule, he said, we can do Sheriff Vanderpool, you can do it. Using the Assessment Center process to promote upper level managers like the lieutenant was better than the old oral board system. Case 2:03-cv-02077-EHC That system, as it was described to you by Page 17 of 51
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Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT

18 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 everybody that testified from the Sheriff's Office, was there were three members of the Pinal County Sheriff's Office, all with the baggage, it was all in-house, it was incestuous. had Pinal County Sheriff's officers interviewing people to become upper rank Pinal County managers. a series of canned questions. And it was based on
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You

And the oral board candidates

simply repeated old hat made responses to old, stale questions. They never had to demonstrate that they knew what

to do, they just had to talk about it. In the Assessment Centers, candidates had to actually demonstrate that they could perform the job that they were seeking. And ladies and gentlemen, I would suggest to you He
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that that's what caused plaintiff his most concern.

couldn't do what he'd done in the past, he couldn't just memorize answers. Flash cards, the flash cards that he was so proud of for the oral boards, wouldn't help him in an Assessment Center. Because in an Assessment Center you have to think on You have to do it in real time. You have to show
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your feet.

people you know what you're doing.

You have to use judgment.

And then you have to be able to talk about it and explain what you were doing. And he just couldn't do it.

Before the testing process even began, Commander Chris Vasquez, with the approval of Mike Arnold, the human resource director, notified each of the candidates that an Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 18 of 51
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19 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 Assessment Center would be used instead of the oral boards. Chris Vasquez said, I sent out these memos to all lieutenant candidates, and I provided them with material about the Assessment Center. The plaintiff claims that he was never notified of meetings where the Assessment Center was discussed. received any memos, he never got any material. Ladies and gentlemen, that's a bit convenient. Because Chris Vasquez testified he sent notices by e-mail and by hard copy to each candidate, and he distributed that information. He said he held meetings describing the
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He never

Assessment Center and how it worked, and everybody came but plaintiff. Now, you might think, well, maybe plaintiff didn't get the notices, maybe he didn't get all of those memos, maybe he didn't get all that material that was sent out to all five candidates that an Assessment Center was going to be used instead of an oral board. But ladies and gentlemen, in Exhibit No. 14, which is in evidence and is before you, that issue was addressed. Because in response to that very complaint by Sheriff Vanderpool (sic), Sheriff Vanderpool responded right then to the plaintiff. And he said, in March Commander
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Vasquez held a meeting with all candidates, you didn't attend. On June 4th he sent all the information to all candidates Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 19 of 51
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20 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 asking if you needed assistance. any offer. You didn't take him up on

Again, he distributed information. And Commander Vasquez

And then he goes on to say:

instructed personnel staff to first call you and tell you they were faxing two documents to you, and the original would be sent by interdepartmental mail. acknowledged that. Ladies and gentlemen, you know that the plaintiff got the April 10th memo, because he testified that he did. Exhibit 132. It's
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You, according to the staff,

And that memo is telling, on April the 10th is

telling all the candidates that an Assessment Center is going to be used -- or going to be given, and it's going to first be preceded by the written exam on May 10th. Now, you know he got this memo, even though he refused to acknowledge it, because otherwise how would he have found out where and when to show up for the written exam on May 10th? And you know he took the exam on May 10th. Was there some grand conspiracy to keep plaintiff from performing well on the Assessment Center? Commander Vasquez tried to help. Hardly.
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He saw him in the library

and game him a book on public speaking, because he knew that would be a challenge for the plaintiff. acknowledged having received that book. you review it? And the plaintiff And when asked, did

He said, well, some of it.
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Nothing was hidden from the plaintiff, and nothing Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 20 of 51

21 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 was sprung on him at the last moment. The Assessment Center itself wasn't handled in-house by the Pinal County Sheriff's Office, and for good reason. And that's because commander -- excuse me, Sheriff Vanderpool wanted the Pinal County Sheriff's Office to be at arm's length, he wanted impartial evaluators to tell him who the best candidates were. He wanted to take the promotional
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decision and make that decision based on merit, not on personality. Sam Weiss, the director of the Regional Law Enforcement Academy put the Assessment Center together. He
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said, and he testified that he had experience throughout his career over almost 30 years in directing law enforcement agencies across the country. And he did a fine job.
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The purpose of the Center, the purpose was to allow the candidates the opportunity to demonstrate that they could solve real live, real world law enforcement problems. That

they could prioritize tasks, determine how and to whom to delegate tasks. They gave them the opportunity, each
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candidate the opportunity to research a real problem that was facing the Pinal County Sheriff's and to provide real solutions, and then make that presentation to the assessors. They could then do that in an articulate and reasoned way. On May the 25th of 2001, Robert Gant acknowledged receiving this memo. Case 2:03-cv-02077-EHC And he was told that the next phase was Page 21 of 51

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Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT

22 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 the Assessment Center, being held approximately three weeks later. He was given two weeks to prepare the written material which was due by June the 8th. And an additional
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week after that to practice before making that presentation. Everyone, including the plaintiff -- and this is Exhibit 135, ladies and gentlemen. Everyone, including the

plaintiff, was given a fair opportunity to show what they could do. These tasks, the ones that have been presented that we've talked about, are exactly what's on the job description which is Exhibit 109. That's what lieutenants are supposed to
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do, all of these things; supervising, commanding, preparing reports, assessing and evaluating, applying law enforcement principles and communicating effectively. Well, who were some of these assessors, ladies and gentlemen? they were. Who were these evaluators? Well, you know who
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Two members from other law enforcement agencies.

Jerry Monahan of the Casa Grande Police Department, who was also a member of the NAACP. of Public Safety. Brian Wilcox, from the Department One
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Two citizen members of the community.

was a Hispanic member from Congressman member JD Hayworth's staff, and another a woman, a citizen from Pinal County. only one representative. Ladies and gentlemen, if the Pinal County Sheriff's Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 22 of 51
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And

23 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 Office wanted to discriminate against anybody, they wouldn't throw the doors open to the citizens of Pinal County and invite them into that process. They wouldn't throw those

doors open and say, you make decisions, you tell me who I should promote. Not if you want to discriminate.
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If you want to discriminate, you hold it close, you hold it tight, and you don't let people know about it. Mr. Gregory tried to impugn the Assessment Center process by suggesting that there's some rule as to how many hours of training an assessor has to have. And if they didn't
14:55:42

have 32 hours of training, somehow they didn't know what they were doing. And that, ladies and gentlemen, is simply silly.

Sam Weiss testified that it's not the hours of training that's important, it's, do they understand the process? And repeatedly he told you, three of the five
14:56:01

assessors had experience in dealing with Assessment Centers. Cindy Shader, the woman citizen from Pinal County, was familiar with law enforcement issues because she, before he ever, Sam Weiss ever showed up at the academy, taught some courses at the academy. And Miguel Olivas, the JD Hayworth staff member, had a degree in criminal justice. Sam Weiss testified that during the training they reviewed videos of other Assessment Centers and practiced scoring, so that they would know exactly what they should look Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 23 of 51
14:56:38 14:56:23

24 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 happened? promote. for and what they should do. It was a refreshingly open way of selecting who to And none of this old boy behind the scenes kind of

way -- network way of doing things. There's not one bit of evidence that anyone in the Assessment Center discriminated against plaintiff. The only
14:56:54

evidence is that honorable citizens gave up several days of their lives to help their community. Well, with that backdrop, ladies and gentlemen, what As part of it they were given an in-basket exercise
14:57:12

to show their ability to communicate in writing, to delegate and to prioritize. Now, you saw these memos written by the plaintiff. It's Exhibit 146. And you can read them again. Ladies and
14:57:43

gentlemen, an 11-year-old would not turn in work of that caliber. The plaintiff couldn't write a simple sentence. Now, one of the things that he did tell you was he has a speech impediment. no speech impediment. Well, that, ladies and gentlemen, is

That is just an ability to have a And is that
14:58:12

simple, coherent thought and put it in writing.

the work product that citizens of Pinal County, or any county for that matter, should expect of upper management and law enforcement? Was plaintiff discriminated against because he's Black when he was asked to complete this exercise like Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 24 of 51
14:58:29

25 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 accurate. grind. everybody else had to complete? Ladies and gentlemen, you didn't see the oral presentations, but the assessors did. And this is Exhibit 141. He got a 45 percent. And you know that score is
14:58:45

Those assessors, those five people had no ax to And what they saw

They called them as they saw them.

is what you saw.

Someone who just can't communicate orally or

in writing, and who was below average in every major area that was being assessed. And it's not discrimination. perform at that level. about. He just couldn't
14:59:18

That's what the testing process is all

And as a result, he was ranked at the very bottom of

the five candidates. Now, at some point plaintiff has made the claim that the Assessment Center itself is unfair. the same. Everybody was treated
14:59:39

Is he saying that Black candidates for lieutenant That's just

can't compete when the playing field is level? wrong. It's offensive. Of course they can.

Sheriff Vanderpool believed that the playing field had to be level. And when it's level, that everyone, Blacks,

15:00:04

Native Americans, Hispanics, males, females, Anglos, everybody, had the same opportunity to be promoted. And you know that's true, and you know that Sheriff Vanderpool did not discriminate against Blacks because Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 25 of 51
15:00:23

26 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 he promoted Allen Miles to lieutenant. You know he didn't

discriminate, because he promoted both of the Rushings, he told you two relatives by the name of Rushing, to lieutenant. An employee, anyone, should not expect to be promoted because he's Black or because he's Hispanic or because she's female. An employee should only expect to be promoted because
15:00:46

he has the ability to do the job. Now, ladies and gentlemen, on the claim of race discrimination, this -- on Count 2, this is the part of the verdict form that you will see. And when you get there, you
15:01:07

should check two checks, you have to have two checks, find for the defendants, sole factor, find for the defendants, motivating factor. Because that's what the evidence shows.

Sheriff Vanderpool didn't discriminate against anyone, and certainly not the plaintiff. Now, the plaintiff also claims he was discriminated against on the basis of age during that same promotional process. What does he have to prove in order to meet that burden of proof? And he, that is the plaintiff, has the
15:01:50 15:01:36

burden of proof throughout this trial. Well, instruction number 18 says, he has to prove he wasn't promoted, that he's over 40, we know that. And then he

has to prove all of these things, and, that his age was the sole or the motivating factor in the defendants' decision not Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 26 of 51
15:02:11

27 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 to promote. In other words, that the defendants would not Or

have made the same decision but for the plaintiff's age.

that the -- plaintiff's age was a determining factor in the defendants' decision not to promote. In other words, the
15:02:31

defendant, Sheriff Vanderpool, would not have made the same decision but for the plaintiff's age. Ladies and gentlemen, age never came up. never discussed. process. It was

It never was a part of the assessment center

There's no evidence that Sheriff Vanderpool thought
15:02:47

about it, or anybody within the command staff thought about it or discussed it. It's not sole, it's not motivating, it's not determining. There's simply no evidence of age

discrimination. And in this case Lieutenant -- excuse me. In this
15:03:03

case Sheriff Vanderpool promoted lieutenants in the order in which they scored. And that's what he did. The overall

scores from the Assessment Center, from top to bottom, and that's the order in which he promoted them. Because plaintiff hasn't met his burden of proof as the law requires, then you're going to look at a verdict form that looks like this: two checks. It says age discrimination. And again
15:03:30

One, find for defendants, sole factor, find for Because age was never a
15:03:51

the defendants, motivating factor.

part of anyone's thought process at the Pinal County Sheriff's Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 27 of 51

28 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 Office. Now, plaintiff claims that somehow he was focused on -- he didn't use the word "targeted," but something like that, when he was terminated on February the 8th of 2002. That's the time, ladies and gentlemen, that's the result of him staying home on Thanksgiving, claiming he worked. This is
15:04:21

when the plaintiff turned in those time sheets certifying that what he did -- that he actually worked, circled the ten hours, asking to be paid even more because it was a shift differential. He turned in time sheets that were inaccurate. He
15:04:42

wasn't truthful during the internal affairs investigation. And there were all good reasons for why Sheriff Vanderpool took the action he did. The plaintiff, ladies and gentlemen, was used to the old way of doing things, the ways that Sheriff Reyes permitted. Now, Roger Vanderpool may have inherited Sheriff Reyes' employees, but he wasn't going to put up with an officer not doing his job and then not being truthful about it. And when an officer, particularly a sergeant, a supervisor, is assigned to work, they have to work. Because
15:05:18 15:04:57

officers have a duty to protect the citizens of the community that they are sworn to protect. Case 2:03-cv-02077-EHC And staying at home all day Page 28 of 51
15:05:33

Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT

29 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 contrary. with your family on Thanksgiving, watching the bowl games and eating turkey and pretending that you're working is laughable. And someone who does that should be disciplined. Now, plaintiff claims that there was a longstanding custom established by the prior sheriff that allowed officers to stay home on holidays and still claim that they were working. Ladies and gentlemen, the evidence is to the This is from Exhibit 115, the internal affairs And here's the specific exhibit. It's at
15:06:18 15:05:55

investigation.

Bates stamp number 567 of Exhibit 115.

And this is a

memorandum from Investigator Doug Brown talking about the Thanksgiving day of November 22nd of 2001. And look at it, ladies and gentlemen, region 1, region 2, region 3. duty, was on duty. Every sergeant who was scheduled to be on RDO, meaning that's your regular day off,
15:06:42

they weren't supposed to be working that Thursday anyway. Every sergeant scheduled to be on duty was on duty except one person, the plaintiff. He was AWOL.
15:07:08

Even if it had been a, quote, longstanding policy under Sheriff Reyes, by the time Thanksgiving day of 2001 rolled around, every sergeant knew if you are assigned to be on duty, you show up. Plaintiff's claim is not believable. And ladies and gentlemen, as part of all of this Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 29 of 51

15:07:37

30 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 investigation, Sheriff Vanderpool again looked at the polygraph examination. And it supported his conclusion

of -- it supported his conclusion that the plaintiff was not being truthful during that investigation. Well, the plaintiff may never admit that he did not tell the truth. He did recognize that he was wrong. Because he signed documents
15:07:58

And how do we know?

agreeing to have his rank reduced from sergeant to corporal. And you don't do that if you don't believe that you did something wrong. And as a part of that agreement he released Pinal County and everybody else from any cause of action arising out of his termination of February 8th of 2002. Well, why did Roger Vanderpool allow plaintiff to return if what he did was so bad? Well, he told you. There
15:08:43 15:08:19

was a hearing that was going on, and it was tearing the Sheriff's Office apart. office. There were strong feelings in that

There were those that thought the plaintiff got what

he deserved, and there were a few that thought he was treated too harshly. And at the same time Roger Vanderpool had been in that office for just about a year, and it was a huge shift to try to turn around and go into a new direction. And the
15:08:58

hearing was a distraction and a hindrance to him, so he gave the plaintiff a second chance. Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 30 of 51
15:09:13

31 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 And when he give the plaintiff a second chance, that is not an act of discrimination. The plaintiff wasn't disciplined by Roger Vanderpool because he was Black. He was disciplined because he failed to
15:09:28

do his job and then wasn't honest about it. Now, plaintiff -- Mr. Gregory, just a few minutes ago claimed that plaintiff was treated differently from others, and he mentioned Ty Morgan. Well, Sheriff Vanderpool explained that to you, and he said, that was an investigation into a deputy's conduct during a traffic stop that had begun at the end of Sheriff Reyes' term in office. And Ty Morgan had been given

15:09:49

what's called a CVSA, that was that computer voice stress analyzor. And he said, it's not recognized by our regulatory
15:10:13

body, that's called the Arizona Post, that's the state-wide agency that regulates all law enforcement. And he said, I'm not going to give any weight to a CVSA that is not recognized. And particularly when there were

other witnesses that supported what Ty Morgan said or what Ty Morgan did. The difference, he said, is that with the plaintiff everyone knew what his policy was. As you know, because he

was the only one that went AWOL, and he deliberately violated that policy and he wasn't truthful when he was investigated. Let me talk to you a little bit about the March 2004 Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 31 of 51
15:10:52

32 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 sergeant's exam. The plaintiff claims he was discriminated against on the basis of race and age when Mike Arnold voided the 2004 -- March 2004 exam. At that time plaintiff was still a
15:11:13

corporal and he wanted to promote to sergeant. And the department followed its usual procedure, and they first scheduled a written examination. Now, both Dave Jordan, who was then the commander of support services, and Roger Vanderpool testified that the exam was supposed to cover management principles contained in some of those well-known books such as One Minute Manager. And in

15:11:32

addition Roger Vanderpool and Dave Jordan had a test prepared that would examine Roger Vanderpool's policies, not the old general orders that had long ago been discarded under the Reyes administration. He also wanted them tested on the new
15:11:55

disciplinary policy which he had put into effect with the Deputy's Association. And he wanted to make sure that those

supervisors in that written exam understood those policies. And Commander Jordan testified, I took -- looked at the exam that was supposed to be given, I walked it over to the human resource department in Pinal County, and I gave it to them. it. And the very day, I mean literally within hours, literally within hours, he started getting phone calls from Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 32 of 51
15:12:29 15:12:13

And it didn't have any General Orders references in

33 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 do I do? questions? employees, from candidates who had taken that exam, complaining that the test didn't cover the current policies. It was covering things that were no longer in effect. wasn't covering what you told us to study. everything. And so immediately an e-mail went out. I mean It

It didn't include
15:12:48

literally by 4:51 p.m. on the day of the exam they knew something was wrong. That's Exhibit 42.

That test was reviewed. Now, John Akram was involved for a little while in dealing with the problem. But as even John Akram testified,
15:13:03

his boss, Mike Arnold was responsible for consulting with the Sheriff's Office and knew how best to handle the situation. And Mike Arnold testified that he went over to the Sheriff's Office, he had a meeting with Dave Jordan, with Commander Chris Vasquez and others, and they started walking through the test and they realized what had happened. wrong test had been administered. Karla Royal, the HR assistant, had just gone into the vault and picked up the wrong stack, the ones that weren't intended to be used. And now Mike Arnold is sitting there saying, now what He said, I considered, should I throw out some No, that won't work, because it won't cover the
15:13:54 15:13:37 15:13:21

The

new policies, throwing out old questions. Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 33 of 51

34 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 don't. So he did the only thing he could do, he declared under the policy in existence in 2003, the one that's still in existence in 2004, he declared manifest error. And this is a

policy that is given to him -- I mean, the authority rather, is given to him by the Board of Supervisors. And it says that
15:14:12

the director, meaning the direct of HR, may adjust the status of any applicant, and he can correct a manifest error. given that authority. And he declared the test null and void. let's start all over. And he told you from that witness stand, ladies and gentlemen, that he made that decision knowing full well that plaintiff would claim he was discriminated against. But he And he said,
15:14:30

He's

also knew that all of the other -- not all, but almost all of the others who took the test were Hispanic deputies, and they were crying foul because the wrong test had been given. And Mike said, I felt damned if you do, damned if you So I'll just do what I think is the fairest thing and
15:14:45

I'll start all over again. And plaintiff refused to take the test. Why? Why
15:15:03

didn't he want to show that he was sergeant's material by taking the right test? Was it because he was afraid to take Was it The one
15:15:32

the test that would test him on the new policies? because he lucked out when the old test was given?

that had been used by the Reyes administration in years past, Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 34 of 51

35 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 the ones to which he had those flash cards, memorized answers? That's for you to decide. Ladies and gentlemen, you heard the phrase that someone looks at life through rose colored glasses. Well,
15:16:00

some people also look at life through race colored glasses. And that is that everything that happens to them is because of race. Nothing is their fault, they're not responsible, people And at some point someone has to say,

are out to get them. stop it.

Just because you don't get what you want, or just
15:16:21

because a mistake was made and it had to be corrected doesn't mean you've been discriminated against. You've heard the old phrase, you throw mud against the wall and see what sticks. Well, a lot of the mud that But

plaintiffs have thrown was all about Hal Campbell. Hal Campbell's not a defendant in this lawsuit.

Hal Campbell

15:16:44

made no decisions, had nothing to do with any of the decisions that happened. So why focus on Hal Campbell?

Maybe hope that some of that splatters off onto Roger Vanderpool or the Pinal county Sheriff's Office. Don't let that happen, ladies and gentlemen. not fair to Roger Vanderpool. I'm going to talk to you a little bit about the plaintiff's hostile work environment claim. There is not a It's
15:17:04

workplace in this world with more than one employee that has not had someone say something inappropriate. Case 2:03-cv-02077-EHC You get two or Page 35 of 51
15:17:23

Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT

36 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 more people together, somebody's going to say something wrong at least once. And just because someone says something stupid doesn't mean that an employee has been subjected to a hostile work environment. In order for plaintiff to prove that he was
15:17:39

subjected to a hostile work environment, this is what he has to prove: them. He has to prove all of this, every single one of

It's instruction number 26. And one is that the plaintiff, that's Robert Gant,

that the plaintiff was subjected to slurs, that the plaintiff was subjected to insults, jokes or other verbal comments or physical contact or intimidation of a racial nature. There is absolutely no evidence of that, that the plaintiff was subjected to any comments like that at all. Plaintiff can't show he was -- he was subjected to slurs or insults by having Angelo Gonzales say, I heard Hal Campbell tell me, should we have three lists? aren't as smart as us. Blacks

15:17:57

15:18:22

Or have Hal Campbell tell somebody

else, but not the plaintiff, that at one point he used the N word to refer to Allen Miles. That is not a slur or an insult
15:18:49

that plaintiff was subjected to. And in addition to that, plaintiff has to show that the conduct was sufficiently severe or pervasive. Two or three comments in a workplace of hundreds of people like that, as unfortunate as they are and as Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 36 of 51
15:19:13

37 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 inappropriate as they are, is not severe, and it's not survasive -- pervasive. If plaintiff misses any one of those elements he cannot prevail. The measure of an employer, ladies and gentlemen, is what does an employer do when he finds out something inappropriate was said? And in this case Sheriff Vanderpool took action. When he found that Hal Campbell made a flippant comment to Ursula Jordan in an e-mail, that she didn't have any sense, she didn't know what she was talking about, that's not a racial comment, it's just rude. without pay. was doing. When Angelo Gonzales complained about Hal Campbell's alleged statements, Sheriff Vanderpool did exactly what you would want a supervisor to do, he started an investigation immediately. The problem was -- and this is Exhibit 28 that's a little difficult to see, but it's easier to read when you have it in person. But the conclusion of that investigation into
15:20:27 15:20:07 15:19:50 15:19:33

He suspended him for a day

And Miss Jordan thanked him for the good job he

Hal Campbell's comments, or his alleged comments, about should we have three lists or, you know, Blacks aren't as smart, the bottom line is, is that both passed their polygraph. was no conclusion. Case 2:03-cv-02077-EHC It was a he said/she said. There
15:20:46

And so he Page 37 of 51

Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT

38 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 couldn't take -- do anything further. But he did. He went a lot further. Why, because he

does not tolerate people making any kind of comments, even -- even silly ones like, should we have three lists? So
15:21:11

he sent Hal Campbell to diversity and sensitivity training. But he went further than that. who does not discriminate. Because this is a man

He brought in speakers from

federal law enforcement agencies to train on diversity issues and ethics. He went one step further than that, he asked the Civil Rights Division of the Attorney General's Office to come in and do an audit, check out our employment policies. Why did he do that? He told you. I had just gotten
15:21:25

elected, I stepped into a big mess, and I wanted their input. And I'm trying to get a handle on everything, including employment policies and practices. for an audit. Is that someone -- is that evidence of someone who's trying to discriminate intentionally? No.
15:21:58 15:21:42

And that's why he asked

He waited and he waited and he waited for the audit report to come. And it never did.

Now, plaintiff, through Allen Miles I think it was, tried to make it sound like Roger Vanderpool got the audit report and hid it. All Allen Miles could say was,
15:22:24

somebody -- I'm telling you that somebody told me from the Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 38 of 51

39 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 writing. it. AG's office that they had a report. That's all.

Well, if there was such a report, and if it had been presented, and if it were derogatory, you can bet your bottom dollar that plaintiff would have brought that person in here. But they didn't. report. You heard and you saw Roger Vanderpool. him, and take him as the measure of the man he is. honest and he is as forthright as can be. And you know He is Because there isn't. And there never was a
15:22:44

And he told you
15:23:13

that when he got that memo from Doug Brown on May the 7th or 8th, I think it was, of 2 -- May the 7th of 2002, where Doug Brown, for the first time anybody has told the Sheriff that Hal Campbell has used the N word in referring to an employee, he said the wind was knocked out of him, he was shocked. minute. He had to gather his wits so he left the room for a He came back. And what did he say to Doug Brown? Write it down. Put it in

15:23:40

Sheriff Vanderpool didn't hide from He didn't sweep it under the rug. The
15:24:01

He didn't run from it.

And in the next day or so Hal Campbell was gone. Chief Deputy serves at the pleasure of the Sheriff. And

Sheriff Vanderpool simply didn't want Hal Campbell in his administration. And whether Sheriff Vanderpool said, you're fired, clear out your desk at the end of the day, or have your Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 39 of 51
15:24:25

40 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 resignation on my desk by the end of the day, which is what he said, is a distinction without a difference. He was gone.

And that's exactly what you would expect of a manager in a situation like this. He didn't shy away from taking action He didn't hesitate to let him
15:24:51

against his own Chief Deputy. go.

He didn't hesitate to correct an error and make sure that Allen Miles received his promotion to sergeant. didn't hesitate to promote Allen Miles to lieutenant. He He
15:25:06

didn't hesitate to hire Willie Payne, his opponent in the race of 2000, who also happened to be Black. Didn't hesitate of

hiring him into and becoming a part of his administration. These are not the acts of anyone who discriminates against anyone. It's just not.
15:25:34

He always asked for advice, whether from the human resource director or from the County Attorney before taking any major step. He asked the attorney -- County Attorney's advice before giving plaintiff his new assignment when he returned to the Sheriff's Office in August of 2002. And he followed that Which is one of

15:25:52

advice and asked him to serve civil process.

the duties, the mandated duties that the Sheriff's Office has to perform. And it has to be performed by a sworn law

enforcement officer. So, ladies and gentlemen, when you get to the part of Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 40 of 51
15:26:14

41 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 the verdict form that says, hostile work environment, there's two lines on this one, and the only line that the evidence would allow you to mark is where it says, find for the defendants, because plaintiff has not met his burden of proof. Sheriff Vanderpool was a man who played by the rules from the very first day he started in office until the very last day in office. It took a lot of his effort to try to And there's not a shred of
15:26:38

professionalize that office.

evidence he discriminated against anybody on the basis of race or of age or on any basis. There's not a shred of evidence that Mike Arnold, the human resource director, discriminated against plaintiff in any way. And there's not a shred of evidence that Pinal County, as a governmental entity, discriminated against plaintiff in any way. The last claim plaintiff has, ladies and gentlemen, is for intentional infliction of emotional distress. is from jury instruction number 28. And in order for
15:27:26 15:27:08 15:26:54

And this

plaintiff to prove this, and he again has the burden of proving all three things, he has to show that the defendants' conduct was extreme and was outrageous. That is, that

Sheriff Vanderpool acted in an extreme way and outrageously. That the intent was to cause plaintiff emotional distress. And that the plaintiff suffered emotional distress. Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT He's got
15:27:48

Page 41 of 51

42 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 to show all three. He misses one of the three, that's it, he

cannot prevail under the law. Well, what has he shown? That the Assessment Center But
15:28:11

was set up so that there would be a level playing field. it wasn't to get plaintiff. anything to plaintiff. Center on his own. He was disciplined for claiming he worked on Thanksgiving when he didn't. blame but himself. Sheriff Vanderpool didn't do

Plaintiff failed that Assessment

But he doesn't have anyone to
15:28:31

He's the only one that went AWOL.

He wasn't assigned to patrol when he came back as a corporal, he was assigned to serve civil process, because that's the advice he got from the County Attorney's Office. The March 2004 exam was voided by the HR director, not to get plaintiff, but to make it a level playing field for everybody, the other 12 who took the exam. Sheriff Vanderpool's conduct was neither extreme nor outrageous. harm at all. It wasn't intended to cause plaintiff emotional It was intended to make that office operate and
15:29:12 15:28:54

function as well as it could after so many decades of decline. And because plaintiff has not met this burden of proof on the intentional infliction of emotional distress claim, again, there's two lines, but there's only one line that the evidence would permit you to mark, and that's the one that says, find for defendants. Case 2:03-cv-02077-EHC Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 42 of 51

15:29:34

43 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 Now, ladies and gentlemen, these are up and down decisions for you. Judge Carroll, in his instructions earlier

has said that you may not be persuaded by sympathy, prejudice, et cetera. So sympathy has no place in your deliberations. If
15:30:06

You can't be Solomon like, you can't flip the baby.

plaintiff hasn't met his burden of proof, and the evidence shows he hasn't, then he's entitled to nothing. to tell him that. So in the jury room, if one of your members says, well, gee, I know there's no evidence that plaintiff was discriminated against, but can't we give him something? somebody has to say, no, we can't. Then
15:30:19

And you have

The law doesn't permit it.

The plaintiff wants money to which he's not entitled. He called Dr. Grosse to testify, and he gave you two sets of figures. someplace. And you probably have them in your notes
15:30:39

One was, I think if he passed the sergeant's exam And I think it was, well, if he

you get 39,000 -- $39,206.

had promoted back in 2001, $88,908. Well, those are great numbers, interesting numbers. But what did he rely on in giving you those numbers? remember some of the questions that I asked? get this information? Do you
15:31:02

Where did you He

It's from the plaintiff's attorney.

had no clue if the information was accurate or not. Robert Grosse, Dr. Grosse, assumed that the plaintiff would work to 65. Case 2:03-cv-02077-EHC But you never heard that from plaintiff. Document 163-2 Filed 11/14/2006 UNITED STATES DISTRICT COURT Page 43 of 51
15:31:24

44 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 Plaintiff was on the stand, he never told you. retire tomorrow and you won't know it. Robert Grosse assumed that that plaintiff's attorney gave him the right salary information so he could make those computations. But he doesn't know if they were correct
15:31:41

He could

because he never asked to see any supporting documents. Robert Grosse assumed that plaintiff would give -- that Pinal County would give its workers salary raises at a steady rate. Pinal County. But he doesn't know what the history was at
15:31:57

He doesn't know if it's true.

Robert Grosse is a pleasant man, but everybody here knows that you can create numbers or mathematical outcome just by playing with the numbers that you put into the equation. And here the plaintiff's attorney picked the numbers, so the equation and the results are suspect. Ladies and gentlemen, the plaintiff is not entitled to one penny. He wasn't discriminated against in any way. You need to Pass the
15:32:34 15:32:13

And by your verdict you need to tell him that.

tell him, if you want to be a sergeant, then apply. test, and then pass each step of the process.

Get on this

sergeant's promotion list for -- eligibility list, and then you can be a sergeant. work for it. If you want to be a lieutenant, then Tell him, get prom