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

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

Georgia A. Staton, Bar #004863 Lori L. Voepel, Bar #015342 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 DEFENDANTS' REPLY IN SUPPORT OF MOTION IN LIMINE RE: DISCRIMINATION ALLEGED BY OTHER EMPLOYEES

Defendants submit their Reply in support of their Motion in Limine to exclude evidence of alleged discrimination by other employees. This Reply is supported by the attached Memorandum of Points and Authorities and the record in this case. MEMORANDUM OF POINTS AND AUTHORITIES I. LAW AND ARGUMENT A. The Cases Relied On By Plaintiffs Are Distinct.

In Response to Defendants' Motion in Limine, Plaintiff asserts that evidence of a few isolated comments allegedly made by Chief Deputy Harold "Hal" Campbell to other employees is admissible to prove motive or intent under Rule 404(b), Fed.R.Evid.

1657723.1 7/24/06

Case 2:03-cv-02077-EHC

Document 112

Filed 07/24/2006

Page 1 of 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 26

Plaintiffs' primary argument is that such evidence is relevant on the issue of the employer's discriminatory intent and is admissible under Heyne v. Caruso, 69 F.3d 1475, 1479 (9th Cir. 1995), and United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983). These cases and the others cited by Plaintiff are distinct because the comments in those cases were made by people involved in the employment decisions. In Heyne, the plaintiff was a waitress at the defendant Caruso's restaurant. Heyne, 69 F.3d at 1477. After the plaintiff arrived late to work one morning, Caruso went to her home that night and propositioned her for sex, which she refused. Id. The following day, the plaintiff was again late for work, and Caruso fired her. Id. In the plaintiff's

subsequent sexual harassment/discrimination suit, the trial court precluded plaintiff from calling as witnesses several other waitresses who claimed they were also subjected to or witnesses sexual harassment by Caruso. Id. at 1479. The Ninth Circuit reversed, holding that testimony of third-party witnesses regarding statements/conduct of defendant Caruso was relevant and admissible to prove the defendant Caruso's motive or intent. Id. Similarly, in United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983), the plaintiff properly introduced testimony that "the person responsible for the promotion decisions at issue made numerous derogatory comments about blacks in general and Aikens in particular." (emphasis added). Likewise, in Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1104 (8th Cir. 1988), the district court improperly excluded evidence "that a Ford manager, who Estes alleged participated in the decision to fire him, told racist jokes about blacks at staff meetings and referred to black customers and Estes himself as "damn niggers." (emphasis added). The appellate court reversed holding that "testimony that these same supervisors on occasion used racial insults against him and other black people is certainly probative" of his claim. Finally, in Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990), an age discrimination case, the court held admissible the testimony of two former employees who were fired because they would not
1657723.1 7/24/06

2

Case 2:03-cv-02077-EHC

Document 112

Filed 07/24/2006

Page 2 of 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

take early retirement. Although a different district manager was involved, the manager who forced the two employees to take early retirement or be fired referred to the plaintiff's early retirement (which was also forced). Id. at 1156 n. 2. Because the

circumstances under which the two were fired were so similar to plaintiff's, they were probative of the claim that the employer discriminated against older employees. Id. Here, in contrast, Plaintiffs are seeking to introduce evidence from third party witnesses regarding the alleged statements and conduct of Hal Campbell, who is not a named defendant in this case and had no involvement whatsoever in the employment decisions at issue. Spulak specifically distinguished its case from Schrand v. Federal Pacific Elec. Co., 851 F.2d 152 (6th Cir. 1988), where there was a "lack of evidence `from which the alleged statements of the witnesses could logically or reasonably be tied to the decision to terminate [the plaintiff].'" Spulak, 894 F.2d at 1156 n. 2 (quoting Schrand, 851 F.2d at 156). Similarly, there is no evidence that Mr. Campbell's alleged conduct is logically or reasonably tied to the motive and intent of Defendants Sheriff Vanderpool and Pinal County in making the employment decisions at issue. Thus, even assuming Mr. Campbell made these statements,1 they have no connection whatsoever to Plaintiffs' hostile environment claim and cannot properly be considered by a jury. B. There Is No Nexus In This Case Between the Alleged Statements and the Employment Decisions At Issue.

As the above cases illustrate,. "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
1

26

As noted in the Motion in Limine and Supplement, Mr. Campbell denies making any of the alleged statements.
3

1657723.1 7/24/06

Case 2:03-cv-02077-EHC

Document 112

Filed 07/24/2006

Page 3 of 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 26

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. Unless Plaintiffs can show some connection or "nexus" between Mr. Campbell's statements and the alleged discriminatory employment decisions, the statements cannot properly be considered in support of Plaintiffs' employment discrimination claim. Plaintiffs cannot make this showing. First, the alleged statements were not made to Plaintiff. Plaintiff Robert Gant alleges that he learned about the first set of statements (regarding having a separate promotion list for "Chicanos," "gringos" and "blacks") from Deputy Angelo Gonzales who purportedly witnessed the statements and filed a grievance with the Sheriff's Office.2 Second, the statements were not made about Plaintiff. The first set of statements referred to "blacks," "gringos" and "Chicanos" generally, not to Plaintiff in particular. Likewise, the second set of statements (allegedly referring to a black officer as a "nigger" and instructing Sergeant Brown to "put some of our Black people in the line-ups") were allegedly made about another black officer and/or black employees in general. As offensive as these comments may be, they were not directed to or made about Plaintiff. As noted in Defendants' Supplement, 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
2

As noted in Defendants' Supplemental Motion in Limine, Deputy Gonzales subsequently brought a federal lawsuit based on these alleged statements, which was dismissed on summary judgment in favor of Defendants. (See Exhibit 1 to Supplement).
4

1657723.1 7/24/06

Case 2:03-cv-02077-EHC

Document 112

Filed 07/24/2006

Page 4 of 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 26

environment claim.

See, e.g., Kishaba, 737 F.Supp. 549 (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). Plaintiffs completely fail to address or distinguish these cases in their Response. Third, there is no evidence that the Sheriff was aware of the comments at the time he made the key employment decisions. A Title VII claimant is required to demonstrate that the employer failed to take reasonable steps to prevent racial harassment. Kishaba, 737 F.Supp. 549 (citing Murphy Motor Freight, 488 F.Supp. 381 (D.Minn. 1980)). It is impossible for an employer to take reasonable steps to prevent racial harassment if he or she is not aware of the misconduct at issue. Here, the first set of statements was not made or brought to the Sheriff's attention until two months after the denial of Plaintiff's promotion to Lieutenant in June 2001.3 Although the Sheriff was aware of Mr. Gonzales' allegations at the time he made his subsequent decision to terminate Plaintiff in January 2002,4 the alleged statements were then very remote in time to the termination decision. And, Plaintiff acknowledges that in the intervening time period, he put on his time sheet that he had worked on Thanksgiving when, in fact, he had not. This is what caused Sheriff Vanderpool to initiate the investigation and ultimately led to Plaintiff's termination. There is also no evidence that Sheriff Vanderpool was aware of the second set of statements when he initiated the Deputy Gonzales claims the statements were made around August 17, 2001, and filed his grievance on August 28, 2001. (See Exhibit 1 to Defendants' Supplement to MIL). 4 Plaintiff was formally terminated in February 2002.
1657723.1 7/24/06

3

5

Case 2:03-cv-02077-EHC

Document 112

Filed 07/24/2006

Page 5 of 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 26

investigation. Those alleged comments were brought to Sheriff Vanderpool's attention by Sergeant Doug Brown in February 2002, after Sergeant Brown learned about them while conducting the investigation into the Thanksgiving day incident. Sheriff Vanderpool then requested Sergeant Brown to put the information in writing, which he obviously would not have done had those comments contributed in any way to Plaintiff's termination. Most importantly, as illustrated by the cases cited by Plaintiffs, there must be evidence showing some connection or nexus between the comments of a non-defendant supervisor to the employment decisions at issue. A supervisor's retaliatory or improper motive can only "be imputed to the company if the manager was involved in the [employment] decision." Bergene v. Salt River Project Agricultural Impr. and Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001); Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1459-60 (7th Cir. 1994). There is no evidence that Mr. Campbell was involved in any of the employment decisions at issue in this case (failure to promote in 2001, termination in 2002 and failure to promote after re-hire in 2004). Nor was Mr. Campbell involved in any way in the investigation that led to the Sheriff's decision to terminate Plaintiff in January 2002. Sergeant Brown conducted the investigation at the request of Sheriff Vanderpool. Nor is there any evidence that the alleged comments actually caused or influenced either the investigation or termination of Plaintiff. Because there is a complete disconnect between Plaintiffs' hostile work environment claim and Mr. Campbell's alleged remarks, Plaintiff cannot properly introduce the statements as evidence -- or make reference to them in opening argument -unless he first makes a sufficient offer of proof that Mr. Campbell was either involved in the employment decisions or somehow influenced Sheriff Vanderpool's employment decisions with regard to Plaintiff. In the absence of such a showing, evidence of the alleged statements would have no tendency to make the existence of any fact of consequence more probable than not. Rule 401, Fed.R.Evid. An employer simply cannot
1657723.1 7/24/06

6

Case 2:03-cv-02077-EHC

Document 112

Filed 07/24/2006

Page 6 of 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 26

be held liable for the isolated offensive comments of a problematic employee where there is no evidence that the person who made the employment decisions was aware of the isolated comments, the comments were not made to or about Plaintiff, and there is no evidence that the employment decisions were affected in any way by the alleged comments. See Spulak, 894 F.2d at 1156 n. 2; Schrand, 851 F.2d at 156. C. Plaintiffs Have Not Shown That Any Racial Harassment Was Sufficiently Severe or Pervasive To Establish a Hostile Work Environment Claim.

Moreover, to establish the existence of a hostile work environment, Plaintiff must show that the racial harassment was "sufficiently severe or pervasive to alter the conditions of [the claimant's] employment and create an abusive working environment." Vinson, 477 U.S. at 67; see also Henson, 682 F.2d 897, 904; Kishaba, 737 F.Supp. at 555. To reach this threshold, "more than a few isolated incidents of harassment must have occurred. Racial comments that are merely part of casual conversation, are accidental, or are sporadic do not trigger Title VII's sanctions." Kishaba, 737 F.Supp. at 555; Murphy, 488 F.Supp. at 384. Plaintiffs have not made this threshold showing. D. Admission of the Irrelevant Evidence Would Be Highly Prejudicial.

Admission of this evidence would also be highly prejudicial under Rule 403, even assuming it had minimal relevance, which it does not for the reasons stated above. Not only are the alleged statements highly inflammatory, but Mr. Campbell also denies that he made any inappropriate racial remarks. Thus, if Plaintiffs are permitted to present

evidence regarding the statements, it will result in a mini-trial in which Defendants will be forced to present evidence refuting Plaintiffs' claims, causing delay, confusion and waste of judicial resources. As noted in the Motion in Limine and Supplement, the evidence is also hearsay that does not fall within any of the exceptions under Rule 801, Fed.R.Evid.

1657723.1 7/24/06

7

Case 2:03-cv-02077-EHC

Document 112

Filed 07/24/2006

Page 7 of 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 26

II.

CONCLUSION Because the evidence regarding Mr. Campbell's alleged statements is irrelevant,

inadmissible, prejudicial, and constitutes impermissible hearsay, it must be excluded. Plaintiffs must be precluded from offering testimony and argument regarding Mr. Campbell's alleged statements, and must not be allowed to infer that other employees of the Pinal County Sheriff's Office were subjected to a racially hostile work environment. RESPECTFULLY SUBMITTED this 24th day of July, 2006. JONES, SKELTON & HOCHULI, P.L.C.

BY /s/ Georgia A. Staton Georgia A. Staton Lori L. Voepel 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 mailed this 24th day of July, 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/ Rose Crutcher

1657723.1 7/24/06

8

Case 2:03-cv-02077-EHC

Document 112

Filed 07/24/2006

Page 8 of 8