Free Trial Brief - 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 TRIAL BRIEF RE: ADMISSIBILITY OF PLAINTIFF'S SECOND CHARGE OF DISCRIMINATION

(Assigned to the Honorable Earl H. Carroll)

Plaintiffs respond to the Court's Order, given in open court on October 27, 2006, and hereby submit their Trial Brief Re: Admissibility of Plaintiff Robert Gant's Second Charge of Discrimination, and request that the Court issue an order that Plaintiff's Complaint and Amended Complaint referring to conduct referenced in Plaintiff's second charge of discrimination is deemed timely and admissible for purposes of consideration by the jury as pertaining to Plaintiff's claims for hostile work environment, racial discrimination, and intentional infliction of emotional distress.

Case 2:03-cv-02077-EHC

Document 139

Filed 10/29/2006

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I.

BACKGROUND On February 8, 2002, Plaintiff was terminated by Pinal County and the Pinal County

Sheriff's Office ("PCSO"), collectively hereinafter "Defendants", for allegedly falsifying his time sheet and being absent from work on Thanksgiving Day, November 22, 2001. On February 15, 2002, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), Charge No. 350A201162, in which Plaintiff alleged race and age discrimination and retaliation by the Sheriff's Department for raising incidences of discrimination. (First EEOC Charge, attached hereto as Exhibit 1.) On March 12, 2002, the EEOC issued a Dismissal and Notice of Right to Sue. (Notice of Right to Sue, attached hereto as Exhibit 2.) On June 14, 2002, Plaintiff, through counsel Dennis Fitzgibbons, filed suit in Pinal County Superior Court, Case No. CV200200638, alleging race and age discrimination, violation of the Arizona Civil Rights Act, wrongful termination, violation of 42 U.S.C. § 1983, negligence and retaliation by the Sheriff's Office, and naming Pinal County, Sheriff Vanderpool and Chief Deputy Harold Campbell as defendants. On August 9, 2002, Plaintiff reached a settlement agreement with Pinal County and Sheriff Vanderpool, which agreement dismissed all but one of the underlying charges ­ that Plaintiff was "inexcusably absent" from work on November 22, 2001 ­ and provided for Plaintiff to be reinstated to the PCSO, but demoted from sergeant to corporal. (Settlement Agreement, attached hereto as Exhibit 3.) On October 27, 2003, due to ongoing discrimination after his reinstatement, Plaintiff served a Notice of Claim on Pinal County and Sheriff Vanderpool in compliance with A.R.S. § 12-821.01, and alleged claims of racial and age discrimination under federal and state law, violation of county policies, negligence and emotional distress, and declared the settlement agreement to be null and void. (Notice of Claim, attached hereto as Exhibit 4.) Plaintiff concurrently filed a second Complaint in District Court, alleging the same claims set forth in the Notice of Claim. On March 16, 2004, Plaintiff took and was the only person out of thirteen to pass the examination for promotion to Sergeant. The test was ultimately thrown out and Plaintiff was not
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promoted. On June 7, 2004, Plaintiff filed a second Charge of Discrimination with the EEOC, Charge No. 350-2004-03883, in which Plaintiff indicated that Defendants had denied him promotion and alleged discrimination on the basis of race and age and retaliation by the Sheriff's Department, and immediately requested a Right to Sue letter be issued. (Second EEOC Charge, attached hereto as Exhibit 5.) On June 25, 2004, the EEOC notified Plaintiff that his request for his Right to Sue letter had been forwarded to the U.S. Department of Justice ("DOJ") for action, and that the DOJ would act on his "request as soon as possible and issue the Notice directly to you." (EEOC Letter, to be sent under separate cover.) On February 24, 2005, pursuant to the Court's Order dated February 15, 2005 (Docket No. 49), Plaintiff amended his Complaint to add a claim for hostile work environment, in which Plaintiff alleged acts that occurred from June 2001 to March 2004, including the following: (1) Defendants' failure to promote Plaintiff on the March 16, 2004 Sergeant's examination; (2) inconsistent promotional practices; (3) Defendants' termination of Plaintiff; (4) racial slurs by Chief Deputy Hal Campbell; and (5) Defendants' failure to promote Plaintiff after he was required to submit to an assessment center in June 2001. II. LEGAL ARGUMENT To establish federal subject matter jurisdiction, a plaintiff must exhaust his administrative remedies before seeking adjudication of a Title VII claim. Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002). Exhaustion of administrative remedies under Title VII requires that the complainant file a timely charge with the federal Equal Employment Opportunity Commission ("EEOC"), thereby allowing the agency time to investigate the charge. See 42 U.S.C. § 2000e5(b); Lyons, 307 F.3d at 1104. Under Title VII, an administrative complaint must be filed with the EEOC within 180 days of the alleged unlawful employment practice, or 300 days in states, such as Arizona, that have deferral agreements between the EEOC and state agencies enforcing anti-discrimination laws. 42 U.S.C. § 2000e-1. Once the EEOC has issued a right-to-sue letter, the plaintiff must file a complaint in district court within ninety days. 42 U.S.C. § 2000e5(f)(1).

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The Supreme Court has addressed the issued of whether discrete acts can form the basis for "continuing violation" claims of discrimination. National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002). In Morgan, the Court held that discrete acts of discrimination or retaliation, including promotion denials, cannot form the basis for continuing violation claims; instead, such claims "are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Morgan, 536 U.S. at 113. However, Morgan is factually distinguishable from the present case because the issue in Morgan was how far back an EEOC charge may reach; here, by contrast, the issue is whether an EEOC charge can reach forward to include related claims that occurred while the charge was pending. The United States District Court for the Northern District of California very recently dealt with this very issue. In ruling on defendant's motion for summary judgment, the Court wrestled with whether a complaint may encompass conduct not included in an EEOC charge of discrimination filed by the plaintiff concerning a denial of promotion in 2002. Roger-Vasselin v. Marriott International, Inc., No. C04-4027 (N.D. Cal. July 19, 2006). In responding to defendant's motion, the plaintiff contended that he did not have to file a new administrative charge based on the 2002 promotion denials because those promotion denials were reasonably related to the allegations in a preceding charge of discrimination, and a complaint may include incidents that are not included in the EEOC charge if such incidents are "like or reasonably related to the allegations of the EEOC charge." Brown v. Continental Can Co., 765 F.2d 810, 813 (9th Cir. 1985) (citations omitted). The defendants argued that the Supreme Court's decision in Morgan precluded Plaintiffs' theory. The Court in Roger-Vasselin explained that "[w]hile some courts have applied Morgan's rationale to bar recovery for subsequent discrete acts of the sort claimed by [the plaintiff], e.g., Shelton v. Boeing Co., 399 F.3d 909, 912-13 (8th Cir. 2005), courts have not `wholly abandoned the theory that reasonably related subsequent acts may be considered exhausted' if the subsequent acts can reasonably be expected to grow out of the EEOC's investigation.'" RogerVasselin, at p. 6 (citing Wedow v. City of Kansas City, 442 F.3d 661, 672-75 (8th Cir. 2006)
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(distinguishing Shelton and holding that an additional administrative charge is not required for reasonably related subsequent acts). The Court further noted that the Ninth Circuit does not appear to have directly ruled on this issue, but it has, post-Morgan, held that jurisdiction extends to "all claims of discrimination that fall within the scope of the EEOC's actual investigation or an EEOC investigation that could reasonably be expected to grow out of the charge." Vasquez v. County of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2003). In denying in part defendant's motion for summary judgment, the Court in RogerVasselin noted that the plaintiff's EEOC charge alleged denied promotions as a result of ongoing discrimination and retaliation. Thus, the Court noted, the "case is unlike Shelton, which put a discrete time limit on the charges of discrimination, and more like Wedow, where the retaliation, including denials of promotion, was alleged to be ongoing. Shelton, 399 F.3d at 912-13; Wedow, 442 F.3d at 674. As the Wedow court explained, "a reasonable EEOC investigation of alleged `ongoing and continu[ing]' retaliation in this case would certainly have focused on whether or not the retaliation alleged was in fact existent at the time of the filing of the charges and if it did indeed continue to exist at the time of the investigation." Wedow, 442 F.3d at 674. That is, it would be reasonable to expect an investigation of the plaintiff's 2002 EEOC charge, which alleged discrimination and retaliation on a "continuous basis," to include an investigation of whether such retaliation was, in fact, continuing. The two charges of discrimination filed by Robert Gant, unlike the single charge filed by the plaintiff in Roger-Vasselin, put beyond challenge whether the conduct alleged in the respective charges were timely filed and therefore litigable. The first charge of discrimination filed by Mr. Gant on February 15, 2002, addressed six discrete events, as follows: (1) (2) (3) Racial remarks allegedly made by Chief Deputy Hal Campbell in August 2001; Being accused of claiming unworked hours on November 22, 2001; Failing to follow the progressive disciplinary process in response to the accusation of claiming unworked hours;
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(4) (5) (6)

Disqualifying Mr. Gant from promotion after he passed the written examination for lieutenant in July 2001; Providing younger employees with privileges that he was denied; and Terminating Mr. Gant on February 8, 2002.

The second charge of discrimination filed by Robert Gant identified several discrete events, with some reference to conduct alleged in the prior charge, as follows: (1) (2) (3) (4) (5) Terminating Mr. Gant on February 8, 2002; Rehiring Mr. Gant into a lower-level position in August 2002; Subjecting Mr. Gant to different terms and conditions of employment from August 2002 continuing forward; Having his supervisory authority removed in August 2003; and Denying Mr. Gant promotion on the March 2004 sergeant's examination.

The allegations contained in the respective charges of discrimination filed by Mr. Gant are comparable to the facts in the Wedow and Roger-Vasselin cases, where the plaintiff alleged subsequent discrete acts that were "like or reasonably related to the allegations of the EEOC charge." Brown v. Continental Can Co., 765 F.2d 810, 813 (9th Cir. 1985) (citations omitted). However, Mr. Gant is not left, like the plaintiffs in Wedow and Roger-Vasselin, to rely alone on the charge of discrimination he filed on February 15, 2002. His second charge of discrimination, filed on June 7, 2004, was filed within 300 days of the three allegations that are unique to his second charge ­ being subjected to different terms and conditions on a "continuing" basis, having his supervisory authority removed, and being denied promotion in March 2004. Therefore, the second EEOC charge and the three unique allegations contained therein are per se timely and litigable, and not subject to the limiting language of Morgan. Even if the acts identified in Plaintiff's second charge of discrimination were found to not be timely, these acts would still be admissible, given the rulings in Roger-Vasselin and Wedow, in that these acts would reasonably be found to be a continuation of previous acts of discrimination and retaliation by the defendants.
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III.

CONCLUSION For the foregoing reasons, Plaintiff Robert Gant respectfully requests that the Court issue

an Order that his second charge of discrimination and the discrete acts alleged therein were timely and that Plaintiff may seek to recover damages for these acts. Plaintiff also seeks a jury instruction identifying the March 2004 failure to promote as a separate claim upon which he may recover damages, or alternatively, that existing jury instructions incorporate the March 2004 failure to promote as a basis for recovery. RESPECTFULLY SUBMITTED this 29th day of October, 2006. LAW OFFICE OF ROBERT M. GREGORY, P.C. By: s/Robert M. Gregory Robert M. Gregory Attorney for Plaintiffs

COPY of the foregoing faxed this 29th day of October, 2006, to: Hon. Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse 401 W. Washington Street, SPC 48 Phoenix, AZ 85003-2218 FAX: 602-322-7539 COPY of the foregoing emailed this 29th day of October, 2006, to: Georgia A. Staton JONES, SKELTON & HOCHULI, P.L.C. 2901 N. Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants
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s/Robert Gregory

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