Free Trial Brief - District Court of Arizona - Arizona

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Mishka L. Marshall (#016641) MARSHALL LAW GROUP, P.C. 777 East Thomas Road, Suite 210 Phoenix, AZ 85014 Telephone: 602/274-7873 Facsimile: 602/274-8207 Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

SEAN L. HARGROW, Case No. CIV 2003-0642 PHX DGC Plaintiff, V. FEDERAL EXPRESS CORPORATION, a Delaware corporation doing business in Arizona; JOHN and JANE DOES I-X;
BLACK CORPORATION I-X, WHITE LIMITED LIABILITY COMPANIES I-X, PLAINTIFF'S TRIAL BRIEF RE RETALIATION

Defendants.

Plaintiff Sean Hargrow submits this trial memorandum on the law of retaliation pursuant to Title VII and 42 U.S.C. § 1981. MEMORANDUM OF POINTS AND AUTHORITIES In order to prevail on his retaliation claims pursuant to Title VII and 42 U.S.C. § 1981, Plaintiff has the burden of proving by a preponderance of the evidence that 1) he engaged in protected activity such as the filing of a complaint alleging discrimination; 2) Defendant subjected him to retaliation; and 3) there is a causal link between the protected activity and the retaliation. Ray v. Henderson, 217 F.3d 1234, 1240 (citations omitted). The Ninth Circuit has defined "adverse employment action" broadly to mean any decision

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reasonably likely to deter employees from engaging in protected activity. Ray¸ 217 F.3d at 1243. E.g., Manatt v. Bank of America, 339 F.3d 792, 802 (9th Cir. 2003) (denial of transfer); Passantino v. Johnson & Johnson Consumer Products, Inc. 212 F.3d 493, 500501, 506 (9th Cir. 2000) (low rating on job performance review, decreased responsibilities and failure to receive promotions); Hashimoto v. Dalton, 118 F.3d 671, 675 (9th Cir.1997) (negative job reference), cert. denied, 523 U.S. 1122 (1998); Miller v. Fairchild Ind., Inc., 885 F.2d 498, 503 (9th Cir.1989) (layoff), cert. denied, 494 U.S. 1056 (1990); Yartzoff v. Thomas, 809 F.2d 1371,1376 (9th Cir. 1987) (transfer of job duties and "undeserved" performance ratings); Ruggles v. California Polytechnic State University, 797 F.2d 782, 785 (9th Cir. 1996) (failure to hire); EEOC v. Crown Zellerbach Corp. 720 F.2d 1008, 1012 (9th Cir. 1983) (four month disciplinary suspension). Defendant claims there is no causal link between Plaintiff's termination on May 12, 2003 and the filing of this lawsuit on April 4, 2003 because the decision maker was not aware of that Plaintiff had filed a lawsuit. While this is a disputed fact, the Court should also consider that causation may also be shown by circumstantial evidence of a pattern of antagonism following the protected conduct. Porter v. California Dept. of Corrections, 2004 U.S. App. Lexis 19070 (9th Cir. 2004), p. 8 citing Kachmar v. SunGuard Data Sys., Inc. 109 F.3d 173, 177 (3rd Cir. 1997)("It is important to realize that it is causation, not temporal proximity itself, that is an element of plaintiff's prima facie case, and temporal proximity itself, that is an element of plaintiff's prima facie case, and temporal proximity merely provides an evidentiary basis from which an inference can be drawn. The element of causation, which necessarily involves an inquiry into the motives of an employer, is highly context-specific.") Id. at 178 Once Plaintiff establishes a prima facie case of retaliation, the defendant must present legitimate nondiscriminatory reasons for the adverse employment action. Brooks v. San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). A plaintiff may demonstrate that a defendant's non-discriminatory reason for taking an adverse employment action is pretext

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"either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 256 (1981). This Court has ruled that Plaintiff engaged in protected activity when he complained about written reprimands he received and when Plaintiff filed this action in April 2003. It is undisputed that Plaintiff engaged in protected activity and that he suffered an adverse employment action (the termination of his employment a little more than one month after filing this action). If Plaintiff can establish a causal link between his termination and the protected activity, he must prevail. Respectfully submitted this 2nd day of November, 2006. s/Mishka L. Marshall Mishka L. Marshall MARSHALL LAW GROUP, P.C. 777 E. Thomas Rd., Suite 210 Phoenix, Arizona 85014 Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on November 2, 2006 I transmitted by electronic filing the foregoing Trial Brief re Retaliation to the United States District Court for the District of Arizona using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mary H. Beard FEDERAL EXPRESS CORPORATION 3620 Hacks Crossing Road, Building B-3rd Floor Memphis, Tennessee 38125 Lori Higuera Alec Hillbo FENNEMORE CRAIG, PC 3003 North Central Avenue, Suite 2600

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Phoenix, Arizona 85012-2913 Counsel for Defendant s/Mishka L. Marshall Mishka L. Marshall

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