Free Motion for Judgment - District Court of Arizona - Arizona

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Georgia A. Staton, Bar #004863 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7854 [email protected] Attorneys for Defendants, Pinal County and Roger Vanderpool as Sheriff of Pinal County UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Robert Gant and Betty Gant, husband and wife, Plaintiffs, v. Roger Vanderpool, Sheriff of Pinal County; Pinal County, a political subdivision; John Does and Jane Does I-X; ABC Corporations IX; and XYZ Partnerships I-X, Defendants. NO. CV 03-2077-PHX-EHC MOTION FOR JUDGMENT AS A MATTER OF LAW

Pursuant to Rule 50(a), Federal Rules of Civil Procedure, Defendants Pinal County and Roger Vanderpool move this Court for judgment as a matter of law on the claims set forth below, for the reasons stated1. COUNT ONE (Age Discrimination Under the Age Discrimination and Employment Act (ADEA) 29 U.S.C. §621 et seq.) The plaintiff has the burden of proving each of the following elements by a
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Preliminarily, Plaintiff is not entitled to pursue any cause of action arising from his termination of employment on February 8, 2002. In September 2002 Plaintiff and Defendants entered into a Settlement Agreement which released the County from any liability. This Release is clear and unambiguous. As a result, Plaintiff should not be able to rely on his 2002 termination as evidence of any violation of federal or state law.

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preponderance of the evidence: 1. 2. the plaintiff suffered an adverse employment action; the plaintiff was 40 years of age or older at the time of the adverse employment action; and The plaintiff's age was a motivating or determining factor in the Defendant's failure to promote the plaintiff.

3.

29 U.S.C. § 623; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); 9th Cir. Civ. Jury Instructions (2001), 14.2, revised March 2002. This Court has already granted summary judgment on Plaintiff's Age Discrimination claim as to the following discrete acts: (1) (2) Plaintiff's assignment to serve civil process on August 9, 2002; Denial of promotion to lieutenant on March 30, 2003. See Court

Order dated February 15, 2005 at Page 7. The only remaining acts of alleged discrimination based on age are: 1. 2. June 14, 2002 denial of promotion to lieutenant; and, The March 2004 denial of promotion to sergeant. ARGUMENT A. June 14, 2001 Denial of Promotion to Lieutenant. In June 2001 Pinal County used a three-part process for promoting sergeants to the position of lieutenant. It consisted of (1) a written examination followed by (2) the candidate's performance at an Assessment Center and (3) a review of the candidate's personnel file. Failure at one step precluded the candidate from progressing to the next step. Plaintiff failed the second component ­ the Assessment Center, placing last among all five candidates.

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The Assessment Center was comprised of five evaluators only one of which was from the Pinal County Sheriff's Office. Two were citizen volunteers and two were volunteers from other law enforcement agencies. No evidence had been presented that Plaintiff's age was either the sole cause or even a motivating factor in the members' scoring decision. Plaintiff presented no evidence that the members were aware of

Plaintiff's age or the age of any other candidate. Plaintiff presented no evidence that any member individually or the group, collectively, considered Plaintiff's age or the ages of other candidates when making their scoring decisions. Nor has Plaintiff presented any evidence that Sheriff Vanderpool considered the candidates' ages when making the promotion. consideration. Indeed, no evidence was presented regarding the other candidates' ages. As far as this Court, or the jury, knows, all candidates were age 40 or over and were identical ages. In the absence of any such evidence Plaintiff cannot establish that the Assessment Center results were premised, in any way, on the basis of age. Likewise, there is no evidence that anyone at the County considered Plaintiff's age or the ages of any candidate when making the final selection for lieutenant.2 If Plaintiff had made a prima facie case, which he did not, the burden of production, but not persuasion, shifts to the County to articulate a legitimate and nondiscriminatory reason for the alleged action. Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2004). If the County does so, then Plaintiff must show that the articulated reason is pretextual. Bodett v. Cox Com, 366 F.3d 736, 743 (9th Cir. 2004). Here, the County proffered a legitimate and non-discriminatory reason for not promoting Plaintiff to lieutenant in June 2001 and that reason had nothing to do with Plaintiff's age. Put simply Plaintiff's inability to perform the essential functions required of all
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There is no evidence, direct or circumstantial, that age was ever a

The candidate with the top score, Jeffrey Karns, was selected.
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lieutenants, e.g., prioritize, delegate, communicate, as was reflected in Plaintiff's written work product and oral presentations during the Assessment Center process constitutes legitimate and non-discriminatory reasons for not promoting him. B. Denial of Promotion to Sergeant in March 20043 In March 2004 the Human Resource Department for Pinal County distributed and proctored a written examination given to those deputies seeking promotion to Sergeant. The wrong (old) test was inadvertently distributed by the Human Resource Technician. That test did not match the study materials nor did it test on policies then in effect. Mike Arnold, the Human Resource Director for Pinal County, declared that

"Manifest Error" occurred and voided the results of the erroneously given test. Mr. Arnold then gave all candidates additional time to study and the correct test was then administered. Plaintiff has provided no evidence that his age was either the sole cause or even the motivating factor in Mr. Arnold's declaration of Manifest Error. There is no evidence that Plaintiff's age played any role in the County's decision that the test given be aligned to the study materials provided candidates and aligned to the then-current Pinal County Sheriff's Office policies. In the absence of such evidence, Plaintiff cannot

establish a prima facie case of age discrimination. Even if Plaintiff established a prima facie case, the County had legitimate and non-discriminatory reasons for declaring Manifest Error and for ensuring that the correct test was given to all candidates. The underlying reason for administering the correct test is to ensure fairness to all candidates who studied for the test. In short, there is
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This Court noted in its Order of February 15, 2005 at Footnote 3 that Plaintiff did not have a right to sue letter based upon a charge of discrimination alleging that the March 2004 promotional process was discriminatory. There is no evidence before this Court that such a right to sue letter was issued. Title VII requires that a Plaintiff obtain a "right to sue" letter from the EEOC before filing an action. See Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172-74 (9th Cir. 1986 amended by 815 F2d. 570 (9th Cir. 1987); Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 715 n1 (9th Cir. 2001).
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no legally sufficient evidentiary basis for a reasonable jury to find for Plaintiff on his claim of age discrimination and judgment as a matter of law should be granted to Defendants. C. There is no Supervisory or Co-Employee Liability Under the ADEA. In Miller v. Maxwell International, Inc., 991 F.3d 583, 588 (9th Cir. 1993) the Ninth Circuit held that there is no individual liability under the ADEA. Vanderpool is entitled to Judgment as a matter of law on this claim. COUNT TWO (Race Discrimination and Retaliation Under Title VII) The plaintiff has the burden of proving each of the following elements by a preponderance of the evidence: 1. 2. 3. 4. he belongs to a protected class; he was performing the job satisfactorily; he suffered an adverse employment action; and other employees with the same qualifications were treated more favorably. Roger

See Vasquez v. County of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2004); see also McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). The Court granted summary judgment on Plaintiff's race discrimination claims as it relates to the following discrete acts: 1. 2. Assignment to serve civil process on August 9, 2002; Denial of promotion to lieutenant on March 30, 2003 (see Court

Order dated February 15, 2005 at Page 7). The only remaining alleged acts of discrimination are: 1. 2. The June 14, 2001 denial of promotion to lieutenant; and, March 2004 denial of promotion to sergeant.

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ARGUMENT A. June 14, 2001 Denial of Promotion to Lieutenant. Although Plaintiff clearly belongs to a protected class and there is no dispute that he was not promoted, Plaintiff has not established a prima facie case because Plaintiff has not established that he performed satisfactorily at the Assessment Center ­ the second component of the promotional process. The evidence is that Plaintiff ranked last in the Assessment process. All candidates who did not receive at least 70% or greater on the Assessment Center were not permitted to complete the final stage of the process ­ review of the candidate's personnel file. Additionally, there is no evidence that the other

employee (Neal Mullard) who also received a less than passing grade on the Assessment Center was treated more favorably. As a result, Plaintiff cannot establish a prima facie case of race discrimination as it relates to the June 14, 2001 denial of promotion to lieutenant. B. Denial of Promotion to Sergeant in March 2004.4 For the same reasons as set forth in Defendants' argument regarding Count One, Defendants move this Court for judgment as a matter of law on the denial of Plaintiff's promotion to sergeant in March 2004. There is no evidence that Plaintiff's race was either the sole cause or even motivating factor in the declaration of Manifest Error and the administration of the correct test. Furthermore, even if a prima facie case had been established, the County had legitimate and non-discriminatory reasons for voiding the results of the first test and that is to ensure fairness to all candidates. In the absence of any evidence whatsoever that the March 2004 test was voided because Plaintiff is Black, Defendants request that this Court grant judgment as a matter of law since no reasonable jury could find in favor of Plaintiff.

See Footnote 1.
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C.

Retaliation Under Title VII. The plaintiff has the burden of proving each of the following elements by a

preponderance of the evidence: 1. 2. 3. he engaged in a protected activity; he suffered an adverse employment action, and there is a causal link between the two.

Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1113 (9th Cir. 2003). In order for Plaintiff to establish a retaliation claim under Title VII Plaintiff must prove that he engaged in a protected activity. It is unclear what protected activity Plaintiff is alleging he engaged in. If Plaintiff is claiming that his August 2001

memorandum complaining about Hal Campbell was the protected activity and his termination on February 8, 2002 was the adverse action, Plaintiff's claim of retaliation fails as a matter of law. This Court held that his termination on February 8, 2002 was time barred. (See Court Order dated February 15, 2005 Order, Page 11.) However, even if not time barred there is no evidence (1) that Plaintiff's memo of August 2001 is a "protected activity" under Title VII or, (2) of any causal connection between his complaint against Hal Campbell in August 2001 and Plaintiff's termination six months later on February 8, 2002 based on temporal proximity between the two events. To establish a prima facie case of retaliation under Title VII, Plaintiff must prove: (1) participation in a protected activity (opposition to any practice made an

unlawful employment practice by Title VII) that is known to the Defendant; (2) adverse employment action; (3) causal connection between the protected activity and the adverse action. Steiner v. Showboat Operating Company, 25 F.3d 1459, 1464 (9th Cir. 1994) cert. denied, 513 U.S. 1082 (1995); Nelson v. Pima Community College District, 83 F.3d 1975 (9th Cir. 1992). "Protected activity" includes opposing an unlawful employment practice,
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making a charge, testifying, assisting or participating in a covered investigation. 42 U.S.C. §2000(e)-3(a). Accusations made in the context of charges before the Commission are protected by statute but charges made outside of that are not protected. Vasconcelos v. Meese, III, 907 F.2d 111 (9th Cir. 1990). The Ninth Circuit has specifically held that this clause refers only to "participation in the machinery set up by Title VII to enforce its provisions". Silver v. Capitol KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978). Furthermore, Courts have held that when a Plaintiff relies on temporal proximity between the alleged protected conduct and the adverse employment decision, the two acts must be "very close". Clark County School Dist. v. Breeden, 532 U.S. 268, 1221 S.Ct. 1508 (2001). Sufficient evidence existed where adverse action occurred less than 3 months after complaint was filed. Yartzoff v. Thomas, 809 F.2d 1371, 1396 (9th Cir. 1987). However, it has been held that four months is too long. Filipovic v. K & R Express Sys., Inc., 176 F.2d 390, 398-99 (7th Cir. 1999) and Conner v. Schuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997); five months is too long, Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998). Here there is a six month interval between the two events. Causal connection cannot be established by temporal proximity and there is no other evidence to establish causation. Additionally, Defendants have a legitimate and non-discriminatory reason for terminating Plaintiff on February 8, 2002. Between August 2001 and February 8, 2002 Plaintiff filed a timesheet that was inaccurate insofar as he claimed to have worked on Thanksgiving Day 2001 and admittedly stayed home celebrating the holiday with his family. It was Plaintiff's action of filing an inaccurate timesheet which resulted in his termination. There is no evidence that other Sergeants assigned to work on Thanksgiving Day did not perform standard patrol duties. There is no evidence that the complaint he
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made regarding Hal Campbell was the cause of his termination. E. Sheriff Vanderpool Moves for Judgment as a Matter of Law Since Title VII Does Not Provide a Cause of Action Against Supervisors or Fellow Employees. In Miller v. Maxwell International, Inc., supra, and in Holly D. v. California Institute of Technology, 339 F.3d 1158, 1179 (9th Cir. 2003) the Ninth Circuit held that there is no individual liability under Title VII. Roger Vanderpool moves for judgment as a matter of law on this claim. COUNT THREE (§ 1983 Discrimination on the Basis of Race and Age) This count is directed only to the County since summary judgment was granted in favor of Roger Vanderpool. (See Court Order dated February 15, 2005 at Page 10.) In order to prove that Pinal County intentionally discriminated against Plaintiff on the basis of his race and age in violation of 42 U.S.C. §1983, Plaintiff must show that the County had a policy or custom that was the "moving force" in depriving him of his rights. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694, 98S.Ct. 2018, 2037-2038 (1978); Oviatt by and through Waugh v. Pearce, 954 F.2d 1470, 1474-1477 (9th Cir. 1992). This violation must be intentional. Sischo Nownejad v. Merced Community College District, 934 F.2d 1104, 1112 (9th Cir. 1991). Furthermore, "a municipality cannot be held liable under §1983 on a respondeat superior theory". Monell, 436 U.S. at 691, 98 S.Ct. 2036 (1978). ARGUMENT A. June 2001 Denial of Promotion to Lieutenant. Plaintiff appears to allege that after he passed the written exam, the Assessment Center was established by the County for the purpose of discriminating against Black candidates. (See discussion of Plaintiff's allegations at Page 10 of Court
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Order dated February 15, 2005.) The facts, as developed, is that the Assessment Center was set up with permission of the County Human Resource Director and that it was established before any candidates took the written exam and that information on the Assessment Center was also distributed to candidates well before the written examination was given. There is no evidence that the Assessment Center was established for any discriminatory reason or designed to discriminate against Black candidates. Plaintiff's argument is that Black candidates lack written or verbal communication skills and, therefore, the Assessment Center was designed to discriminate against Black candidates. That argument is offensive. It is not the position of the County that any race lacks communication skills. Communication skills are an essential part of any lieutenant's job and Plaintiff's inability to successfully complete the Assessment Center is simply an assessment that Plaintiff demonstrated that he lacked those skills. B. Denial of Promotion to Sergeant in March, 2004. Defendants incorporate by reference its argument at Page 6, regarding Count Two. COUNT FOUR (Title VII ­ Hostile Work Environment Claim) Plaintiff claims that he was subjected to a hostile work environment because he was not promoted to lieutenant in June 2001, was terminated on February 8, 2002 for falsifying his timesheet for Thanksgiving Day 2001; upon reinstatement was assigned to work in the same region and for the same supervisor prior to his termination; and the results of the 2004 written promotional test to sergeant were voided for all candidates after Plaintiff tested and was the only one to pass. (See Count Four, Paragraphs 38-44 of Plaintiff's Amended Complaint.) Plaintiff also asserts that Hal Campbell, the former Chief Deputy for the Pinal County Sheriff's Office, created a hostile work environment based upon a statement he made to Deputy Gonzalez asking if he should have a separate promotion list for "Chicanos, one for Gringos and one for Blacks" and further allegedly

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stated that "it breaks my heart to see you guys not doing as well on a test as everyone else. "Blacks, well we know they are not as smart as us" and that Mr. Campbell referred to a Black officer "as a Nigger" and instructing Sgt. Brown to allegedly "put some of our Black people in the lineups because they are always accusing him of not including them in things". In order to establish a racially hostile work environment, the plaintiff must prove each of the following elements by a preponderance of the evidence: 1. the plaintiff was subjected to slurs, insults, or intimidation of a racial nature; 2. the conduct was unwelcome; 3. the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create a racially abusive or hostile work environment; 4. the plaintiff perceived the working environment to be abusive or hostile; and 5. a reasonable man in the plaintiff's circumstances would consider the working environment to be abusive or hostile. Fuller v. City of Oakland, California, 47 F.3d 1522, 1527 (9th Cir. 1995). Whether the environment constituted a racially hostile work environment is determined by looking at the totality of the circumstances, including the frequency of the

18 harassing conduct, the severity of the conduct, whether the conduct was physically 19 threatening or humiliating or a mere offensive utterance, and whether it unreasonably 20 interfered with an employee's work performance. Fuller v. City of Oakland, California, 21 47 F.3d 1522, 1527 (9th Cir.1995); Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). 22 23 24 25 26
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There is no evidence that Plaintiff was subjected to any slurs, insults, or intimidation of a racial nature. Furthermore, there is no evidence that the statements allegedly made to others were sufficiently severe or pervasive to alter the conditions of the Plaintiff's work environment and create a racially abusive or hostile work environment.
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The alleged statements were not made to Plaintiff nor were they made about Plaintiff. Courts have widely held that alleged derogatory statements made to or about someone other than the plaintiff generally should not be taken into account in determining whether a plaintiff has established a hostile work environment claim. See, Kishaba v. Hilton Hotels, 737 F.Sup. 549 (D. Haw. 1990, affirmed by 936 F.2d 578 (9th Cir. 1991)) (derogatory statements not directed to plaintiff), Singletary v. Missouri Dept. of Corrections, 423 F.3d 886 (8th Cir. 2005)(racial epithets made outside of plaintiff's presence); Ngenjuntr v. Metropolitan Life Ins. Co., 146 F.3d 464 (7th Cir. 1998)(offensive statements not made in plaintiff's presence); Caruso v. City of Cocoa, 178 F.Supp.2d 96 (D.Conn. 2001)(only one comment made in plaintiff's presence ­ all others made outside plaintiff's presence); Tavares v. Sam's Club, 178 F.Supp.2d 96 (D.Conn. 2001) (comments not heard by plaintiff but reported to her by a co-worker). Furthermore, "there must exist some nexus between alleged improper conduct and a term, condition, or privilege of employment." Kishaba v. Hilton Hotels Corp., 737 F.Supp. 549 (D.Haw. 1990), affirmed by 936 F.2d 578 (9th Cir. 1991)(emphasis added). The United States Supreme Court has explained that "not all workplace conduct that may be described as `harassment' affects a `term, condition, or privilege' of employment within the meaning of Title VII." Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986); see also Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971); Henson v. Dundee, 682 F.2d 897, 902 (1982). Thus, the "mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" does not sufficiently affect the conditions of employment to violate Title VII. Rogers, 454 F.2d at 238 (quoted with approval by United States Supreme Court in Meritor); see also Henson, 682 F.2d at 904 (same); Kishaba, 737 F.Supp. at 555.

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In summary, Plaintiff has not demonstrated that he was subjected to slurs, insults or intimidation of a racial nature. He has not produced any evidence that any alleged statements made were sufficiently severe or pervasive to alter the conditions of his employment, nor has he shown any connection between the statements allegedly made by former Chief Hal Campbell and any employment decision involving Plaintiff. In the absence of such evidence the jury is only left to speculate. That is an insufficient basis upon which to allow this matter to go to a jury and, therefore, Defendants respectfully

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A. promptly taken. COUNT FIVE (Arizona Civil Rights (A.R.S. §41-1401 et seq. ­ Race and Age Discrimination) Plaintiff Failed to Comply with the Notice of Claim Statute. As a preliminary matter, Defendants move for judgment as a matter of law because Plaintiff failed to properly comply with Arizona's Notice of Claim statute under A.R.S. §12-821.01. Plaintiff acknowledged, in his Response to Defendants' Motion for
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request that this Court grant judgment as a matter of law on Count Four. Liability for hostile work environment may be defeated by the employer by proving (a) that the employer exercised reasonable care to prevent and correct promptly any discriminatory conduct, and (b) the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunity by the employer or to otherwise avoid harm. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Here, whenever any misconduct came to the attention of Sheriff Vanderpool (statements allegedly made by Hal Campbell) corrective action was

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Summary Judgment that he filed his Notice of Claim on October 27, 2003 when he filed their Federal District Court case. This Court denied Defendants' Motion finding that "Plaintiffs were not required to give Defendants sixty days advance notice of their state claims" ­ the amount of time which must pass before the claim is deemed automatically denied. (See this Court's Order dated February 15, 2005, Page 11.) Subsequent to this Court's Order, Division Two of the Arizona Court of Appeals in Barth v. Cochise County, 213 Ariz. 58, 138 P.3d 1186, 1189 (Ariz. App. 2006) held that "a claim must be presented and disallowed before the claimant may bring an action. Mammo; see also Grimm v. Arizona Board of Pardons and Paroles, (citations omitted)". In short, after this Court ruled, Division Two of the Arizona Court of Appeals held that in order to comply properly with Arizona's Notice of Claim statute, a plaintiff may not bring an action until such time as a claim has been disallowed. A claim can be disallowed in one of two ways ­ by the governmental entity responding to the claim and denying it or by letting sixty days pass with no response at which point the claim is deemed automatically denied. (See A.R.S. §12-821.01(E)) In this case, there is no evidence of any denial prior to the expiration of sixty days and there is no dispute that Plaintiff did not wait sixty days for the automatic denial to be triggered by statute. Therefore, pursuant to Barth, sixty days was required to lapse before Plaintiff could file his lawsuit since Plaintiff did not comply with the Notice of Claim statute, the state law based claim should be allowed to go to the jury. Defendants move for judgment as a matter of law on this basis. B. State Law Based Claims. Plaintiff's claim that he was discriminated against when he was terminated on February 8, 2002 is time barred. (See Court Order dated February 15, 2005, Page 11.) Plaintiff's claims arising from his reinstatement on August 9, 2002 (assignment to Region 3; reporting to Lt. DeGon and his administrative claims as well as his March 30, 2003

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denial of promotion to lieutenant are also time barred. See Court's Order dated February 15, 2005, Page 12.) The only remaining matter not previously barred by this Court's ruling5 is the Plaintiff's allegation that he was not promoted to Sergeant in March 2004 when the written examination was declared to be void. There is no evidence that Plaintiff filed any notice of claim prior to making such allegation and, therefore, it too is barred by A.R.S. §12-821.01. Defendants request that this Court grant Rule 50 relief as to Count Five. COUNT SIX (Negligent Hiring and Supervision)6 Defendants incorporate by reference their position with respect to the Notice of Claim statute as set forth above. This Court granted summary judgment as to Plaintiff's claim of negligent hiring. (See Court Order dated February 15, 2005, Page 12.) If the Court does not grant judgment as a matter of law on the Notice of Claim statute as it relates to the remaining claim of negligent supervision, Defendants respectfully request this Court grant judgment as a matter of law for the reasons set forth below. In order to prove negligent supervision Plaintiff must prove that Sheriff Vanderpool committed a tort. See Mulhern v. City of Scottsdale, 165 Ariz. 395, 398, 799 P.2d 15, 18 (App. 1990). Plaintiff has not identified any tort that Sheriff Vanderpool is alleged to have committed. The Court granted summary judgment on the intentional infliction of emotional distress claim on February 15, 2005. Furthermore, Plaintiff had to prove that Sheriff Vanderpool's alleged tortious conduct was foreseeable and that the Pinal County Board of Supervisors had actual knowledge that Sheriff Vanderpool would commit tortious behavior. See Blough v. Hawkins Market, Inc., 51 F. Supp.2d 858, 866 The Court did not address the March 2004 promotional event as a discrete discriminatory act under Title VII. See Court Order dated February 15, 2005, Page 5. 6 At the Pre-Trial Hearing on October 17, 2006 this Court sua sponte dismissed Plaintiff's claim of negligent supervision. To Defendants knowledge, an Order has not yet been issued. Defendants, nevertheless, provide this analysis as a basis for the Court's Order.
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(N.D. Ohio 1999); see also Pruitt v. Pavelin, 141 Ariz. 195, 695 P.2d 1347, 1354 (App. 1984). Here there was no evidence presented by Plaintiff demonstrating that Sheriff Vanderpool engaged in any tortious conduct or that the Pinal County Board of Supervisors was aware of the alleged misconduct and failed to act. In the absence of such evidence, Plaintiff's claim fails as a matter of law. COUNT SEVEN (Intentional Infliction of Emotional Distress) This Court granted summary judgment on February 15, 2005 ­ see Court Order dated February 15, 2005 at Page 13. PUNITIVE DAMAGES Defendants respectfully request this Court grant Rule 50 relief on Plaintiff's punitive damage claim. A. Title VII Claims. Punitive damages are not permitted against a political subdivision for Title VII claims. See 42 U.S.C. §1981a(b)(1); Carter Herman v. City of Philadelphia, 1995 WL 764574 (E.D. Pa.). Punitive damages under Title VII cannot be assessed against Roger Vanderpool since there is no supervisory liability for Title VII claims. See Miller v. Maxwell, supra; Holly D. v. California Institute of Technology, 339 F.3d 1158, 1179 (9th Cir. 2003). B. Section 1983 Claims. Under §1983 punitive damages cannot be awarded against a governmental entity. See City of Newport v. Fact Concert, Inc., 101 Sup.Ct. 2748 (1981). Punitive damages can be assessed Roger Vanderpool in a § 1983 case only if he is sued in his individual capacity. This Court granted summary judgment to Defendant Vanderpool on this claim. See Court Order dated February 15, 2005 at Page 10.

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C.

State Claims. Punitive damages may not be awarded against a governmental entity or a

governmental employee on any state law based claim. See A.R.S. §12-820.04. RESPECTFULLY SUBMITTED this 24th day of October, 2006. JONES, SKELTON & HOCHULI, P.L.C.

BY

s/Georgia A. Staton Georgia A. Staton 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants, Pinal County and Roger Vanderpool as Sheriff of Pinal County

Original e-filed and copies of the fore- th going mailed or hand-delivered this 24 day of October, 2006, to: Hon. Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, SPC 48 Suite 521 Phoenix, AZ 85003-2151 602-322-7530 Robert M. Gregory, Esq. LAW OFFICE OF ROBERT M. GREGORY, P.C. 1920 South Alma School Road Suite A-115 Mesa, AZ 85210 Attorney for Plaintiffs 480-839-4711 FAX: 480-452-1753 E-mail: [email protected] s/Gwen Coon

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