Free Response to Motion - District Court of Arizona - Arizona

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

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No. CIV 03-2077-PHX-EHC PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION IN LIMINE RE: DISCRIMINATION ALLEGED BY OTHER EMPLOYEES

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. ) ) ) I. BACKGROUND

(Honorable Earl H. Carroll)

Plaintiff filed his complaint alleging, inter alia, race discrimination and retaliation. In response to Defendant's Motion for Summary Judgment, Plaintiff highlighted several alleged statements by Chief Deputy Hal Campbell that Mr. Campbell made to other employees at the Pinal County Sheriff's Office, including: 1) statements made by Mr. Campbell and witnessed by Deputy Angelo Gonzales, in which Mr. Campbell asked Deputy Gonzalez if he should have a separate promotion list for "Chicanos, one for gringos, and one for blacks" and further stated that "it breaks my heart to see you guys not doing as well on the test as everyone else. Blacks, well we know they're not as smart as us." Deputy Gonzales memorialized what he heard in an internal grievance he Case 2:03-cv-02077-EHC Document 106 Filed 07/13/2006 Page 1 of 5

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filed with the Sheriff's Office, which resulted in an internal investigation by the Sheriff's Office, Case No. 2001-44, and an external investigation by the Arizona Attorney General. Deputy Gonzales also filed a Charge of Discrimination with the Equal Employment Opportunity Commission, Charge No. 350A12940, concerning Mr. Campbell's statements. Plaintiff sent a letter to Mike Arnold, Director of Human Resources for Pinal County, regarding the alleged statements by Mr. Campbell in which Plaintiff complained about being racially profiled by Mr. Campbell. 2) Sergeant Doug Brown of the Pinal County Sheriff's Office wrote a letter to Sheriff Vanderpool, at the Sheriff's request, in which Sergeant Brown detailed several incidences of discriminatory conduct by Mr. Campbell, including referring to a black officer as a "nigger", making "an off color comment about a member of the department", and instructing Sergeant Brown "to put some of our Black people in the line-ups, because they are always accusing him of not including them in things." Defendants have asked that these and other statements that "ring the bell" should be excluded on the grounds that such statements are irrelevant, would confuse the jury and cause undue delay, constitute hearsay, and constitute inadmissible wrong acts. II. ARGUMENT Federal Rule of Evidence Rule 401 defines relevant evidence as: [E]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed.R.Evid. 401. Evidence of other crimes, wrongs, or acts is admissible to prove motive or intent. See Fed.R.Evid. 404 (b). Such evidence, however, must be more probative than prejudicial in order to be admissible. See Fed.R.Evid. 403. It is clear that an employer's conduct tending to demonstrate hostility towards a certain group is both relevant and admissible where the employer's general hostility towards

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that group is the true reason behind firing an employee who is a member of that group. See Heyne v. Caruso, 69 F.3d 1475, 1479 (9th Cir. 1995) (citing Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990)("As a general rule, the testimony of other employees about their treatment by the defendant [employer] is relevant to the issue of the employer's discriminatory intent."). Recognizing that "[t]here will seldom be `eyewitness' testimony as to the employer's mental processes," United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983), the Supreme Court held that evidence of the employer's discriminatory attitude in general is relevant and admissible to prove race discrimination. See id. at 713-14 n. 2. Additionally, The Eighth Circuit, in an action for wrongful termination on the basis of race, likewise found that "[e]vidence of prior acts of discrimination is relevant to an employer's motive in discharging a plaintiff, even where this evidence is not extensive enough to establish discriminatory animus by itself." Heyne v. Caruso, 69 F.3d at 1480 (citing Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1104 (8th Cir. 1988). Statements made by Chief Deputy Hal Campbell to other employees about black police officers, whether or not directed at Plaintiff, are relevant to the issue of Mr. Campbell's discriminatory intent. Hal Campbell was responsible for managing the day-to-day affairs of the Pinal County Sheriff's Office, and implicitly had the ability and authority to affect Plaintiff, including in the administration of promotional examinations. Mr. Campbell's racially discriminatory remarks made to other employees about black persons is indicative of his intent and/or motives towards black persons, including Plaintiff.

III.

CONCLUSION
For the reasons provided herein, the Court should not preclude evidence from persons

other than Plaintiff, to show that these persons experienced or witnessed statements or acts of discrimination against them.

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RESPECTFULLY SUBMITTED this _13th__ day of July, 2006. LAW OFFICE OF ROBERT M. GREGORY, P.C. By: __s/ Robert M. Gregory_________________ Robert M. Gregory Attorney for Plaintiffs

ORIGINAL of the foregoing electronically filed this _13th_ day of July, 2006, with: Clerk of the Court United States District Court District of Arizona ONE COPY of the foregoing mailed this _13th_ 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 Phoenix, AZ 85003-2218

COPY of the foregoing electronically transmitted via the CM/ECF system this _13th_ day of July, 2006, to:
Georgia A. Staton JONES, SKELTON & HOCHULI, P.L.C. 2901 N. Central Avenue, Suite 800 Phoenix, Arizona 85012

Attorneys for Defendants

___s/ Robert Gregory___________ --4-- Document 106 Filed 07/13/2006

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