Free Response in Opposition to Motion - District Court of Arizona - Arizona

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MARY JO O'NEILL # 005924 C. EMANUEL SMITH MS BAR # 7473 KATHERINE J. KRUSE # 019127 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, Arizona 85012 Telephone: (602) 640-5029 Facsimile: (602) 640-5009 Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, ) ) ) ) Plaintiff, ) ) Kelley J. Miles, ) ) Plaintiff-Intervenor, ) ) vs. ) ) The Boeing Company, a Delaware ) corporation, and Boeing Aerospace Operations, Inc., a Delaware corporation, ) ) ) Defendants. CV 03-1210 PHX PGR PLAINTIFF EEOC'S RESPONSE TO DEFENDANTS' MOTION FOR AWARD OF ATTORNEYS' FEES

Pursuant to Federal Rule of Civil Procedure 54(d), Plaintiff, the Equal Employment Opportunity Commission ("EEOC" or "Commission") hereby respectfully requests that the Court deny Defendants' Motion for Award of Attorneys' Fees on Plaintiffs' retaliation claim. A. Boeing's Request for Fees Fails to Comply with Federal and Local Rules of Civil Procedure, and Should be Denied Because Boeing Has Not Provided a Fair Estimate of the Amount of Fees Sought

Boeing asserts in its Motion for Award of Attorneys' Fees that it "is not submitting a complete memorandum of points and authorities or supporting documentation with this Motion, but will do so within 60 days of entry of judgment, or as otherwise ordered by the Court." (Defs.' Mot. at 2). However, the very rule Boeing cites in support, Local Rule

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54.2(b), mandates that Defendant timely submit a complete memorandum and supporting documentation in seeking to recover attorneys' fees against the United States.

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Local Rule 54.2(b) provides: Where recovery of attorneys' fees and related non-taxable expenses are sought against the United States, the motion and supporting memorandum of points and authorities must be filed in accordance with the time limits set forth in Rule 54(d)(2)(B), Federal Rules of Civil Procedures, and 28 U.S.C. § 2412(d)(1)(B). In all other cases, this paragraph (b) shall apply. (Emphasis added). Federal Rule of Civil Procedure 54(d)(2)(B) requires that a motion for attorneys' fees be filed no later than fourteen days after entry of judgment. It is only when a request for fees is not against the United States that Local Rule 54.2(b) allows a defendant to wait sixty days to file a memorandum of points and authorities and supporting documentation. Because both the Federal and Local Rules required Boeing to file its motion, supporting memorandum, and documentation within fourteen days to seeks attorneys' fees from the EEOC, Boeing's basis for requesting fees should be limited to the argument and support it already has set forth. Moreover, both Fed. R. Civ. P. Rule 54(d)(2)(B) and Local Rule 54.2(b) require that Defendant, within fourteen days of the entry of judgment, "state the amount or provide a fair

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estimate of the amount sought." Boeing has neither stated nor provided a fair estimate of the amount of fees that it seeks. As Boeing explains in its motion, it seeks solely the fees reasonably related to defense of the retaliation claim asserted by Plaintiffs. Boeing has made no application for fees regarding the harassment claim asserted by Plaintiffs. (Defs.' Mot. At 4). Boeing adds that it must determine what portion of its total fees is attributable to the defense of the retaliation claim. (Id.) Boeing provides no fair estimate of what this amount might be; it merely explains that it has paid, or agreed to pay, $157,000 total to defend this lawsuit.1 (Id.) Boeing has failed to satisfy the requirements imposed by both the Federal and Local rules of Civil Procedure to seek fees against the Commission. Thus, the Commission requests that Boeing's motion for fees against it be denied. //

As explained in detail in subsection F below, the harassment and retaliation claims are intertwined, and defense of those claims cannot be separated for purposes of assessing attorneys' fees for one claim. 2

1

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B.

Legal Standard - W hether Plaintiffs Had a Legal and Factual Basis for Filing the Retaliation Claim

If the Court does consider Boeing's request for fees, the Supreme Court has ruled that, in order to receive attorney's fees under 42 U.S.C. § 2000e5(k), a defendant must prove that the plaintiff's action was "frivolous, unreasonable, or without foundation." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694 (U.S. 1978). To satisfy this standard, Defendants must establish more than the mere fact that Plaintiffs did not finally prevail. Id. at 422. Rather, Defendants must establish that the Commission and Plaintiff Intervenor had "no legal or factual basis" for filing the suit. Mitchell v. Office of the Los Angeles County Superintendent of Sch., 805 F.2d 844, 847 (9th Cir 1986). Because the inquiry is the Commission's and Plaintiff-Intervenor's basis for filing the suit, the inquiry is limited to what the Plaintiffs knew or should have anticipated at the outset of the litigation. EEOC v. Bruno's Restaurant, 13 F.3d 285, 287, 289 (9th Cir. 1993). Thus, for example, if a defendant raises the issue of witness credibility, the Ninth Circuit has concluded that attorney's fees can not be awarded based on a finding that the Commission failed to present credible evidence of discriminatory conduct. Id. At 290. Fees can be awarded in that circumstance only if a court finds that the plaintiff "should have anticipated at the outset that none of its evidence of discriminatory conduct was credible." Id. The Supreme Court also has exhorted courts to avoid post hoc reasoning to determine whether an action is frivolous, unreasonable, or without foundation: In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Id. at 421-422. The Supreme Court proceeded to express concern that assessing attorneys'

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fees merely because a party does not prevail "would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII." Id.

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The Ninth Circuit has repeatedly restated the concerns expressed by the Supreme Court in Christianburg Garment Co., and emphasized that "a district court must exercise caution in awarding fees to a prevailing defendant in order to avoid discouraging legitimate suits that may not be 'airtight.'" Bruno's Restaurant, 13 F.3d at 287, 289 (quoting

Christianburg Garment Co., 434 U.S. at 422); see also Miller v. Los Angeles County Board of Educ., 827 F.2d 617, 619 (9th Cir. 1987) (same). Applying these standards, the Ninth Circuit has routinely denied attorneys' fees awards to prevailing defendants in discrimination cases because it could not find the cases frivolous, unreasonable or lacking in foundation. See, e.g., Crowe v Wiltel Comm. Systems, 103 F.3d 897, 900-901 (9th Cir. 1996) (affirming a district court's order denying a prevailing defendant's request for attorneys' fees); Bruno's Restaurant, 13 F.3d at 289 (reversing a district court's award of attorneys' fees to a prevailing defendant); Thomas v. Bible, 983 F.2d 152, 155 (9th Cir. 1993) (same); Forsberg v. Pacific Northwest Bell Tel. Co., 840 F.2d 1409, 1422 (9th Cir. 1988) (affirming a district court's order denying a defendant's request for

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attorneys' fees); Miller, 827 F.2d at 621 (reversing a district court's award of attorneys' fees to a defendant); Mitchell, 805 F.2d at 847 (same). C. Defendants' Analysis of the Factual and Legal Bases for the Retaliation Claim Relies on Improper Post Hoc Reasoning, Contrary to the Requirements of Christianburg

Boeing offers one basis for its request for attorneys' fees on the Plaintiffs' retaliation claim ­ the Court's Order granting Boeing's Summary Judgment Motion. Boeing refers to two points in the Court's order: (1) the "determination that the EEOC and Miles failed to establish key elements of a prima facie case for unlawful retaliation"; and (2) the "dismiss[al]" of a portion of the retaliation claim, based on Jeff Luidhardt's issuance of corrective action notice to Miles, on the basis that Miles had failed to exhaust administrative remedies. (Defs.' Mot. At 3). In relying on the Court's Order granting Boeing's Motion for Summary Judgment as the sole basis for its attorneys' fees request, Boeing engages in the very post hoc reasoning that the Supreme Court prohibited, i.e., "concluding that, because [P]laintiff[s] did not ultimately prevail, [their] action must have been unreasonable or without foundation." See 4

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Christiansburg Garment Co. 434 U.S. at 421-422. Boeing's argument also ignores the Ninth Circuit decisions repeating the Supreme Court's prohibition and urging caution "in awarding fees to a prevailing defendant in order to avoid discouraging legitimate suits that may not be 'airtight'". Bruno's Restaurant, 13 F.3d at 287, 289 (quoting Christianburg Garment Co., 434 U.S. at 422). By applying the proper standard, whether Plaintiff had a legal and factual basis for the retaliation claim, instead of engaging in the post hoc reasoning that Boeing urges, the Court should conclude that there is no basis for an award of attorneys' fees, for the reasons explained in detail in sections D and E below. D. The Commission Had Both Legal and Factual Bases for Asserting the Retaliation Claim at the Outset of This Litigation

As mentioned above, Defendants seek attorneys' fees solely on the retaliation claim brought by the Plaintiffs. At the outset of this litigation, the Plaintiffs had the following legal and factual bases for asserting a retaliation claim: (1) A determination by the Commission's enforcement personnel, who are responsible for investigating employees' charges of discrimination, finding reasonable cause to believe that Boeing retaliated against Miles for complaining about employment discrimination by subjecting her to further harassment. A second determination by the Commission's enforcement personnel finding reasonable cause to believe that Boeing further retaliated against Miles for complaining about employment discrimination by denying her further access to its internal complaint process after learning she filed her initial charge with the EEOC.

(2)

(Ex. 1, Affidavit of Susan L. Grace ¶ 12 and Attach. C-D thereto, Letters of Determination dated March 12, 2002 on Charge Nos. 350-A1-2101 and 350-A1-2690). Boeing did not request reconsideration of either of these determinations by the Commission's enforcement personnel. (Id. ¶ 14). Determinations by the EEOC's enforcement personnel finding

reasonable cause to believe that a company has engaged in discrimination are considered in determining whether there is a factual and legal basis for asserting a claim, because "the EEOC is expert in the investigation of such claims." Mitchell, 805 F.2d at 847. In addition to the EEOC determinations, Plaintiffs set forth some of the specific factual incidents on which their retaliation claim was based in their Complaints, although

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they explained that the retaliation was not limited to these incidents. The Commission filed its Complaint on June 25, 2003 and Ms. Miles filed her Complaint on September 19, 2003. The listed incidents, set forth below, provide further legal and factual bases for Plaintiffs' retaliation claim. (3) Reporting Ms. Miles's internal complaint to co-workers, and warning them to be careful around her because she had them on a list (June, 2001); Refusing to further investigate Ms. Miles's internal complaints after she filed a charge with the EEOC, on the ground that she had chosen to go to the EEOC (July, 2001); Falsely accusing Ms. Miles of damaging the floor of an aircraft (March, 2002); Threatening to call "security because of the alleged conduct of Ms. Miles (M arch, 2002); Allowing a co-worker to harass Ms. Miles by swearing loudly and mocking her by singing obscenities and making derogatory references toward her (October, 2002); Requiring Ms. Miles to work with those individuals who were harassing her and whom she had complained about (June, 2001 to July, 2004); Requiring Ms. Miles to tolerate a supervisor yelling at her in a threatening and humiliating manner (May, 2003); and Giving Ms. Miles a corrective action notice and a written and verbal warning for not wearing safety glasses when there was no requirement to do so and when those who had not complained to Human Resources or filed charges with EEOC were not required to wear safety glasses (May, 2003).

(4)

(5) (6) (7)

(8)

(9) (10)

(EEOC Complaint ¶ 10 (dkt. no. 1); Miles's Complaint ¶ 13 (dkt. no. 11)). Items five through ten are set forth solely in the Intervenor's Complaint, but the EEOC was aware of these additional allegations and their factual bases as well, through their joint representation of the interests of Ms. Miles. Defendants did not file a motion to dismiss or any other pleading requesting dismissal on the basis that the allegations of retaliation set forth in the Complaints failed to state a claim. Thus, they did not dispute the adequacy of the basis for the retaliation claim when it was filed. \\

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By the time the Commission and Intervenor filed their Complaints, the Plaintiffs also were aware that Miles had repeatedly engaged in the protected activity of reporting harassment and retaliation to Boeing. As explained in the Plaintiffs' Response to Defendants' Summary Judgment Motion, M iles reported harassment to Nunimaker for years; and to Luidhardt, to Boeing's Human Resources and Equal Employment Opportunity Offices ("HR/EEO"), and to the EEOC in June 2001. In July 2001, she complained to Boeing HR of additional harassment, and in August 2001, she complained of retaliation to Boeing HR and submitted a second EEOC charge. (Pls.' Resp. to Defs.' Sum. J. Mot. at 10-11 (dkt. no. 116)). It is undisputed that Miles has reported harassment and retaliation to Boeing HR/EEO repeatedly since then, on dates including March and October, 2002, and February and May, 2003. (Id. at 11). The factual allegations in Plaintiffs' Complaints, and the information about the dates on which Miles complained to Boeing management or Boeing HR/EEO about discrimination and retaliation, were based on information contained in the EEOC's investigative file, the determinations made by the EEOC's enforcement personnel, additional interviews of Ms. Miles after the investigation, and documents provided by Ms. Miles. The factual allegations set forth above, applied to the governing legal standards, also provided Plaintiffs the legal basis for alleging the retaliation claim contained in their Complaints. First, Plaintiffs had factual information that Miles engaged in protected activity, specifically, the complaints she made to Boeing HR/EEO in June, July, and August, 2001, March and October, 2002, and February and May, 2003. See Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000) (setting forth the elements of a retaliation claim). Second, Plaintiffs had factual information to indicate that Boeing subjected Miles to an adverse employment action, i.e., action "'reasonably likely to deter employees from engaging in protected activity.'" Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 (9th Cir. 2004). That factual information includes the retaliatory conduct set forth as numbers three through ten above, particularly when viewed in totality. See Ray, 217 F.3d at 1244-45 (stating that retaliatory harassment is adverse employment action upon which a retaliation claim may be based). 7

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Third, the Plaintiffs had a basis for concluding that there was a causal link between Miles's protected activity and the adverse employment action. See id. Items three through four above, that Boeing shared Miles's internal complaint with co-workers, and warned them to be careful around her because she had them on a list; and that Boeing refused to further investigate Miles's internal complaints after she filed a charge with the EEOC, are direct retaliatory responses to Miles's complaints. In addition to these direct retaliatory responses, a causal link may be established by timing alone if an adverse employment action closely follows protected action. Pardi, 389 F.3d at 850; Ray, 217 F.3d at 1244. Items three through ten above have a close temporal proximity to one or more of Miles's complaints. Ms. Miles complained of harassment and retaliation in June, July, and August, 2001. Thereafter, retaliatory acts continued, and Ms. Miles continued to complain as they occurred, on the following dates: March and October, 2002, and February and May, 2003, as set forth above. The dates of the reports and the additional acts of retaliation gave the Plaintiffs a legal and factual basis for concluding that there was sufficient temporal proximity to establish a causal link. See Ray, 217 F.3d at 1244 (finding a sufficient temporal proximity between complaints that occurred in March, April, and June, 1994 and retaliation that began with berating by management in November and December, 1994). A causal link also may be shown by a "pattern of antagonism following the protected conduct." Porter v. California Dept. of Corrections, 419 F.3d 885, 895 (9th Cir. 2005). (internal quotation omitted). The conduct set forth above gave Plaintiffs a factual basis for concluding that Boeing had engaged in such a pattern. In sum, the determinations issued by the Commission's enforcement personnel, finding reasonable cause to believe that Boeing retaliated against Miles, and the factual information available to Plaintiffs at the time the actions were filed, including the allegations set forth in the Complaints, provide ample legal and factual bases for the retaliation claim asserted by the Commission. Defendants cannot present facts to establish that the claim was frivolous, unreasonable, or without foundation. See M itchell, 805 F.2d at 847; Bruno's Restaurant, 13 F.3d at 287, 289. Thus, the EEOC requests that the Motion for Attorneys' Fees be denied. \\ 8

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As noted in section C above, Defendants surmise that Plaintiffs lacked factual or legal bases for the retaliation claim by relying solely on the conclusions the Court reached after exhaustive review of material obtained during discovery, and counsels' arguments. Defendants' Motion is inconsistent with established Ninth Circuit authority. See, e.g., Bruno's Restaurant, 13 F.3d at 287, 289. E. The Commission Had Both Legal and Factual Bases for Litigating the Portion of the Retaliation Claim Involving Issuance of Corrective Action Notices

As stated above, in requesting attorneys' fees on the retaliation claim, Defendants incorrectly rely in part on the Court's conclusion that Miles did not exhaust her administrative remedies with respect to one portion of the retaliation claim - Jeff Luidhardt's repeated issuance of corrective action notices to Miles. As explained above, the proper analysis is whether the Plaintiffs had a legal and factual basis for litigating Luidhardt's issuance of corrective action notices as part of the retaliation claim; if so, litigation of this portion of the claim was not frivolous, unreasonable, or without merit. See Christiansburg Garment Co., 434 U.S. at 421, 98 S.Ct. 694; Bruno's Restaurant, 13 F.3d at 287, 289. Plaintiffs had a legal and factual basis for litigating Luidhardt's issuance of corrective action notices as part of the retaliation claim because Plaintiffs had a legal and factual basis for concluding that Luidhardt's issuance of the corrective action notices was within the scope of the actual EEOC investigation or the investigation that reasonably would have been expected to grow out of the allegations in Miles' two EEOC charges, construing the charge "with the utmost liberality". See EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994); Freeman v. Oakland Unified School Dist., 291 F.3d 632, 636 (9th Cir. 2002). In the two Charges of Discrimination that Miles filed with the EEOC, in June and in August, 2001, Miles alleged retaliation as well as sex discrimination, including retaliation by Boeing managers and HR/EEO officials who either belittled her for complaining, refused to further investigate her complaints, or warned employees about her complaints. (Ex. 1, Grace Aff. ¶¶ 5-6, and Attachs. A-B thereto). In the two Letters of Determination issued by the EEOC, based on the administrative investigation of both Charges, the Commission found reasonable cause to believe that Boeing retaliated against Miles for complaining about discrimination. 9

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(Id. ¶ 12, and Attach. C-D thereto). Because Miles alleged retaliation by management officials in both charges, the Plaintiffs had a factual and legal basis for concluding that the EEOC's investigation of Miles's retaliation charges reasonably would have included investigation of supervisor Luidhardt's issuance of corrective action notices after Miles made other complaints of discrimination and retaliation. See Farmer Bros. Co., 31 F.3d at 899; Freeman, 291 F.3d at 636. The Plaintiffs also had a legal basis for concluding that it was irrelevant that the conduct occurred after the EEOC's investigation was complete because the Ninth Circuit has ruled that "forcing an employee to begin the administrative process anew after additional occurrences of discrimination in order to have them considered by the agency and the courts would erect a needless procedural barrier." Lyons v. England, 307 F.3d 1092, 1104 (9th Cir. 2002) (internal quotation omitted). Given that Plaintiffs had a legal and factual basis for including Luidhardt's issuance of the corrective action notices in the retaliation claim, Defendants cannot establish that inclusion of these acts within the retaliation claim was frivolous, unreasonable, or without foundation. See Mitchell, 805 F.2d at 847; Bruno's Restaurant, 13 F.3d at 287, 289. Therefore, the EEOC requests that Defendant's Motion for Attorneys' fees on this basis be denied. F. The Claim of Harassment Based on Gender and the Claim of Retaliation Are So Intertwined As to Preclude Assessment of Attorneys' Fees Related Solely to the Retaliation Claim

As explained above, Boeing did not provide a fair estimate of the amount of attorneys' fees it seeks on the retaliation claim because it seeks fees only for that claim, and asserts that it "needs to determine what portion of the total [defense] is attributable to the defense of those claims." (Defs.' Mot. at 4). The Ninth Circuit has upheld a district court's denial of attorneys' fees on a portion of a plaintiff's claims because the claims "were so interrelated that fees could not practicably be attributed to [a portion of the] claims alone." Crowe, 103 F.3d at 900. Boeing's fee request should be denied on the same basis - the harassment claim, for which Boeing does not seek fees, is so interrelated with the retaliation claim that there is no way to assign a 10

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portion of the defense solely to the retaliation claim. The interrelationship of the two claims was set forth at length in Plaintiffs' joint response to Boeing's Motion for Summary Judgment. Plaintiffs argued that the additional incidents of harassment, those that took place after Miles's initial complaints, were motivated both by her gender and by retaliation. (Pls.' Joint Resp. to Defs. Mot. For Summ. J. at 13-14, 24). Plaintiffs also argued that Boeing's HR/EEO offices engaged in further harassment and retaliation that ratified the underlying harassment and retaliation. (Id. at 19). Given Plaintiffs' position that the vast majority of the conduct at issue constituted both gender-based harassment and retaliation, the litigation would have involved the same degree of discovery about these incidents even absent a retaliation claim. No portion of the defense can be assigned solely to the retaliation claim. Because attorneys' fees cannot be divided between the harassment and retaliation claims, the EEOC requests that the Court deny Boeing's motion for attorneys' fees on this basis as well. See Crowe, 103 F.3d at 900. See also Balmer v. HCA, Inc., 423 F.3d 606, 617 (6th Cir. 2005) (ruling that attorney's fees may not be awarded to a defendant when a plaintiff has asserted at least one non-frivolous claim). G. Plaintiffs Request That the Court Stay a Decision on the Motion for Attorneys' Fees Pending Appeal

Pursuant to Federal Rule of Civil Procedure 62(d), the EEOC also requests that the court stay a decision on the Motion for Attorneys' Fees because the Commission anticipates filing an appeal in this case. The Commission is reviewing its options and anticipates appealing the judgment of the Court in this action. If it files a notice of appeal, the Commission, a federal government agency, is entitled to a stay of the proceedings to enforce the judgment without posting a supersedeas bond. Fed. R. Civ. P. Rule 62(d)-(e). Therefore, the Commission respectfully requests that the Court stay a decision on Boeing's Motion for Award of Attorneys' Fees until the expiration of the deadline for the Commission to file a notice of appeal, December 5, 2005, or until a decision on appeal if a notice is filed. \\

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H.

Conclusion

The provision of Title VII which permits the award of attorneys' fees "was not designed as a general penalty provision for unsuccessful plaintiffs . . . ." Mitchell, 805 F.2d at 847. "Only in exceptional cases did Congress intend that defendants be awarded attorney's fees under Title VII." Id. (emphasis added). The Commission had a legal and factual basis for the retaliation claim; thus, this is not the exceptional case in which attorneys' fees are justified. For all of the reasons set forth above, the Commission respectfully requests the Court deny Defendants' Motion for Award of Attorney's Fees or in the alternative stay a decision on the Defendants' Motion for the pendency of any appeal. RESPECTFULLY SUBMITTED this 31st day of October, 2005. MARY JO O'NEILL Regional Attorney C. EMANUEL SMITH Supervisory Trial Attorney

s/ Katherine J. Kruse KATHERINE J. KRUSE Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 North Central Ave., Suite 690 Phoenix, Arizona 85012-2504 (602) 640-5029 Attorneys for Plaintiff

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1 CERTIFICATE OF SERVICE 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 27 28 13 Case 2:03-cv-01210-PGR Document 132 Filed 10/31/2005 Page 13 of 13 s/ Phyllis Brady Phyllis Brady I certify that on this 31st day of October, 2005, I electronically transmitted the foregoing response, and accompanying exhibits, using the CM/ECF for filing and transmittal, to the following CM/ECF registrants: Tibor Nagy, Jr., Esq. Erica Rocush, Esq. Snell & Wilmer, L.L.P. One South Church Avenue, Suite 1500 Tucson, Arizona 85701-1630 Attorneys for Defendants Richard L. Green, Esq. Paul D. Friedman, Esq. O'Steen and Harrison 300 West Clarendon Ave., Suite 400 Phoenix, Arizona 85013 Attorneys for Plaintiff-Intervenor