HomeMy WebLinkAbout2016CV00966 - ARAUJO & GONZALES V. CITY OF FORT COLLINS, ET AL - 032 - PROPOSED SCHEDULING ORDERIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00966-CBS
KENNYBERG ARAUJO, and
FRANCIS GONZALES,
Plaintiffs,
V.
THE CITY OF FORT COLLINS, a municipality,
DONALD VAGGE, former Deputy Chief of Police, in his individual capacity, and
GARY SHAKLEE, Police Sergeant, in his individual capacity,
Defendants.
SCHEDULING ORDER
1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL
A Scheduling Conference in this case was held on November 16, 2016 at 8:30
a.m. in Courtroom A902 of the Alfred A. Arraj Courthouse, 901 19th Street, Denver,
Colorado. Qusair Mohamedbhai and Laura B. Wolf attended for Plaintiffs, Cathy
Havener Greer and Jenny Lopez Filkins attended for Defendant City of Fort Collins,
David R. DeMuro attended for Defendant Donald Vagge, and Marni Nathan Kloster
attended for Defendant Gary Shaklee. The Parties will be represented in this case as
follows:
For Plaintiffs:
Qusair Mohamedbhai
Laura B. Wolf
RATHOD | MOHAMEDBHAI LLC
2701 Lawrence Street, Suite 100
Denver, CO 80205
(303) 578-4400
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(303) 578-4401 (f)
qm@rmlawyers.com
lw@rmlawyers.com
For Defendant City of Fort Collins:
Cathy Havener Greer
Wells, Anderson & Race, LLC
1700 Broadway, Suite 1020
Denver, Colorado 80290
(303) 830-1212
(303) 830-0898 (f)
cgreer@warllc.com
Jenny Lopez Filkins
Fort Collins City Attorney’s Office
City Hall West, 300 LaPorte Avenue
Fort Collins, CO 80521
(970) 416-2284
(970) 221-6327 (f)
jlopezfilkins@fcgov.com
For Defendant Donald Vagge:
David R. DeMuro
Vaughan & DeMuro
720 S. Colorado Blvd.
North Tower, Penthouse
Denver, Colorado 80246
(303) 837-9200
ddemuro@vaughandemuro.com
For Defendant Gary Shaklee:
Marni Nathan Kloster
Nathan Dumm & Mayer P.C.
7900 East Union Ave, Suite 600
Denver, Colorado 80237
(303) 691-3737
(303) 757-5106 (f)
mkloster@ndm-law.com
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2. STATEMENT OF JURISDICTION
As a result of Plaintiffs’ assertion of violations of their civil rights pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C § 2000e et seq. and the Civil
Rights Act of 1866, 42 U.S.C. § 1981, Plaintiffs have presented a federal question over
which this Court properly has jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiffs’ claim
for attorneys’ fees and costs is conferred by 42 U.S.C § 2000e-5(k) and 42 U.S.C. §
1988(b). Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391(b).
All of the events alleged herein occurred within the state of Colorado, and at the time of
the events giving rise to this litigation, all of the parties resided in Colorado.
3. STATEMENT OF CLAIMS AND DEFENSES
a. Plaintiffs:
Plaintiffs Detective Kennyberg Araujo (“Det. Araujo” or “Plaintiff Araujo”) and
Sergeant Francis Gonzales (“Sgt. Gonzales” or “Plaintiff Gonzales”) (collectively
“Plaintiffs”) have suffered ongoing discrimination based on their race and national origin
as well as retaliation throughout their employment with the Fort Collins Police
Department (“FCPD”), in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C § 2000e et seq. and the Civil Rights Act of 1866, 42 U.S.C. § 1981.
The culture of discrimination as well as the specific acts alleged in their Complaint &
Jury Demand were perpetrated and perpetuated by Defendants City of Fort Collins
(“Fort Collins” or “Defendant Fort Collins”), former Deputy Chief Donald Vagge (“Deputy
Chief Vagge” or “Defendant Vagge”), and Sergeant Gary Shaklee (“Sgt. Shaklee” or
“Defendant Shaklee”).
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For decades, the FCPD has fostered and condoned a culture of discrimination
against Latino/Hispanic officers, which is evidenced in its hiring and promotional
practices as well as its disparate treatment of Latino/Hispanic officers in its disciplinary
decisions and performance evaluations. Complaints of discrimination by these
Latino/Hispanic officers have been met with retaliation in the form of demotions,
transfers, denials of promotion and special assignment, and constructive discharge.
Deputy Chief Vagge and Sgt. Shaklee have actively participated in and directed the
discrimination and retaliation against Det. Araujo and Sgt. Gonzales, causing both
officers great financial and emotional hardship.
Sgt. Gonzales is Latino/Hispanic and of Mexican heritage. Despite being
described in one annual review as “the gold standard” for task force sergeants, Sgt.
Gonzales has been repeatedly passed over for promotion to lieutenant for the last
fifteen years. Despite Sgt. Gonzales’s exemplary resume and thirty-five years of
service with the FCPD, his failure to be promoted is unsurprising as the FCPD has
only ever promoted one Latino/Hispanic officer to position of lieutenant, Lt. John
Pino. Deputy Chief Vagge has been the driving force blocking Sgt. Gonzales from
advancing in his career. In July 2016, after becoming more vocal about the
discrimination he was facing as well as serving as a witness for two Latino/Hispanic
officers in support of their complaints of discrimination, Sgt. Gonzales was passed
over for a special assignment to School Resources Officer (“SRO”) Sergeant
despite being the most qualified candidate.
Det. Araujo is Latino/Hispanic and from Brazil. Although he was praised as
having “the essentials to be an exceptional officer,” Det. Araujo did not experience
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the type of career advancement he envisioned. Under the hypercritical supervision
of Sgt. Shaklee, Det. Araujo was set up to fail; his white colleagues, meanwhile,
were given the encouragement and support to succeed. The environment
established by Sgt. Shaklee was overtly discouraging to Latino/Hispanic officers,
whom he disparagingly refers to as “tonks” behind their backs. Not only did Det.
Araujo face unparalleled criticism from Sgt. Shaklee, but Sgt. Shaklee took active
measures to isolate Det. Araujo from the members of his team, just as he has done
with other Latino/Hispanic officers in the past. After bringing complaints of
discrimination against Sgt. Shaklee to Deputy Chief Vagge, Det. Araujo was
subjected to retaliation in the form of additional reprimands, suspension from all
collateral-duty assignments, and reduced hours and pay. Det. Araujo was
constructively discharged in June 2015 and now works as a police officer with the
Denver Police Department.
b. Defendants:
City:
Fort Collins denies that it has discriminated or retaliated against either Plaintiff
based on their race, national origin, or any other illegal reason and denies that it has
perpetrated or perpetuated a culture of discrimination. Fort Collins specifically denies
that it has violated Title VII of the Civil Rights Act of 1964, as amended, or the Civil
Rights Act of 1866, 42 U.S.C. 1981. Fort Collins denies that the FCPD has fostered
and condoned a culture of discrimination against Hispanic/Latino officers. Fort Collins
denies that any action it took with regard to either Plaintiff was taken in retaliation to any
protected activity by either of them. With respect to the broad claim of a pattern and
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practice of discrimination: Fort Collins categorically denies any such pattern or practice,
and denies that it has created or perpetuated a culture of discrimination. Specifically,
the City denies that it permitted any of its officers to “openly target and discriminate
against” other officers, still less that it fostered or condoned any such behavior. The City
likewise denies that either Mr. Araujo or Mr. Gonzales, or any other employee, has been
subjected to “relentless race discrimination” or to unlawful or discriminatory
“hypercritical evaluation” on the basis of race or national origin. The City also denies
that any action it took with regard to either Plaintiff was in retaliation for any protected
activity. Fort Collins incorporates the defenses and affirmative defenses set forth in its
Answer to Plaintiffs’ First Amended Complaint.
Defendant Vagge:
During part of the time alleged in the first amended complaint, defendant Don
Vagge was an assistant chief of the Fort Collins Police Department, retiring on or about
May 1, 2015. He denies that he was the final decision maker for the Department, and
denies that he ever discriminated or retaliated against either plaintiff. He intends to raise
various defenses to the plaintiffs’ claims, including that he did not commit the allegedly
improper acts, part or all of the claims are barred by the statute of limitations, and he
had little or no personal involvement in many of the allegedly improper actions.
Defendant Shaklee:
Sergeant Gary Shaklee is currently a sergeant with the City of Fort Collins Police
Department. Sergeant Shaklee denies the substantive allegations in the Plaintiffs’
Amended Complaint. Specifically, he denies that he violated any federal law or took
any action that was discriminatory or in response to any protected activity by either
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Plaintiff. Any action Sergeant Shaklee engaged in either as a police officer or a
supervisor was done in full compliance with the law and was reasonable and
appropriate under the circumstances. It should be also noted that Sergeant Shaklee
never supervised Plaintiff Gonzales and that Plaintiff Araujo’s work performance matters
are well documented. Sergeant Shaklee incorporates herein those affirmative defenses
set forth in his response to Plaintiffs’ First Amended Complaint.
4. UNDISPUTED FACTS
The following facts are undisputed:
1. Plaintiff Araujo was hired by the Fort Collins Police Department (“FCPD”) on
January 4, 2007 as a police officer.
2. Plaintiff Araujo’s last day of his employment with the FCPD was on June 19,
2015.
3. Plaintiff Araujo held the rank of detective at the time his employment ended with
the FCPD.
4. Plaintiff Gonzales was hired by the FCPD on September 1, 1981 as a police
officer.
5. Plaintiff Gonzales still works at the FCPD and currently holds the rank of
sergeant.
6. Defendant Shaklee currently works at the FCPD and holds the rank of sergeant.
7. Defendant Vagge retired from the FCPD on May 1, 2015 with the rank of Deputy
Chief of the Criminal Investigations Division.
8. John Hutto is the present Chief of Police for the FCPD.
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5. COMPUTATION OF DAMAGES
a. Plaintiffs: Plaintiffs claim actual economic losses (including
consequential damages), compensatory damages (including, but not limited to, those
for past and future pecuniary and non-pecuniary losses, emotional distress, suffering,
loss inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary
losses), declaratory relief and injunctive relief, including prospective injunctive relief, as
appropriate, punitive damages for all claims allowed by law in an amount to be
determined at trial, as well as attorneys’ fees and costs, pre-judgment and post-
judgment interest at the highest lawful rate, and all other damages and relief legally
recoverable including equitable relief.
Plaintiffs suffered significant economic losses in the form of lost promotions,
extended probationary periods, and discipline resulting in lost overtime. While Sgt.
Gonzales continues to work for the FCPD, he has suffered significant economic losses
resulting from his discriminatory failure to be promoted to lieutenant over the last fifteen
years. Presently, Sgt. Gonzales’s annual salary and benefits are valued by the FCPD
at $119,183.14. Det. Araujo also suffered losses on account of his constructive
discharge from the Fort Collins Police Department (“FCPD). Although Det. Araujo has
mitigated the losses resulting from his discriminatory discharge by finding comparable
work, his losses are difficult to calculate insofar as he lost seven years of seniority with
the FCPD when he took his position with the Denver Police Department. At the time of
his constructive discharge, Det. Araujo’s annual salary and benefits were valued by the
FCPD at $97,543.31. These figures are undervalued, as both Sgt. Gonzales and Det.
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Araujo would have been earning more had they not suffered from the unlawful
discrimination and retaliation forming the basis of this lawsuit.
Due to the complex nature of these damages, a more precise computation of
damages will be provided during the normal course of discovery, to the extent Plaintiffs’
damages are subject to such computation, and will be determined by a jury in its sound
discretion following a presentation of the evidence at trial in this matter.
b. Defendants: The Defendants do not currently seek damages, but they
reserve the right to seek costs and attorney fees.
6. REPORT OF PRE-CONFERENCE DISCOVERY &
MEETING UNDER FED. R. CIV. P. 26(f)
a. The Fed. R. Civ. P. 26(f) meeting was held on September 14, 2016.
b. The following counsel participated in the meeting: Qusair Mohamedbhai
and Laura B. Wolf represented Plaintiffs. Cathy Havener Greer represented Defendant
City of Fort Collins, David R. DeMuro represented Defendant Donald Vagge, and Marni
Nathan Kloster represented Defendant Gary Shaklee.
c. The Parties made their initial disclosures on November 9, 2016.
d. There are no proposed changes in requirement of disclosures under Fed.
R. Civ. P. 26(a)(1).
e. The Parties have not agreed to conduct informal discovery, but the Parties
are actively working to resolve this case and will use all methods available to them,
including informal discovery if possible and if agreed upon.
f. The Parties agree to take all reasonable steps to reduce discovery and
reduce costs.
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g. The Parties agree to produce all electronic files in either paper form or an
electronic version of their choosing. A Party will only be required to produce
electronically stored information in an electronic form if specifically requested with the
form specified (i.e., with or without metadata, PDF, or native form). The Parties agree
that, in the event that disputes arise regarding discovery of electronically stored
information, they will attempt to apply the Sedona Principles to resolve such disputes
and will also comply with the practice standards adopted by the United States District
Court for the District of Colorado.
h. The parties will be engaging in private mediation in the upcoming months
and are continuing to work toward a possible settlement or resolution of the case.
7. CONSENT
All parties have not consented to the exercise of jurisdiction of a magistrate
judge.
8. DISCOVERY LIMITATIONS
a. Defendants propose a limit of ten (10) depositions exclusive of experts per
side. Plaintiffs propose a limit of seven (7) depositions exclusive of experts per side.
b. The Parties agree to limit the length of depositions of witnesses other than
the Plaintiffs to seven (7) hours of actual deposition time. The Defendants request that
the depositions of each Plaintiff be ten (10) hours. Plaintiffs oppose this request and
maintain that the length of each Plaintiff’s deposition should be no longer than seven (7)
hours, per FRCP(d)(1).
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c. The Parties propose a limit of forty-five (45) interrogatories for Defendants
collectively to propound and a limit of twenty-five (25) interrogatories for Plaintiffs
collectively to propound.
d. Consistent with the Parties’ proposed limitations on interrogatories, the
Parties propose a limit of forty-five (45) requests for production for Defendants
collectively to propund and a limit of twenty-five (25) requests for production for Plaintiffs
collectively to propund.
e. Consistent with the Parties’ proposed limitations on interrogatories, the
Parties propose a limit of forty-five (45) requests for admissions for Defendants
collectively to propound and a limit of twenty-five (25) requests for admissions for
Plaintiffs collectively to propound.
f. The Parties anticipate their submission to the Court of a proposed
protective order for its review and approval to accommodate the exchange of
confidential documents and other information during the discovery process.
9. CASE AND PLAN SCHEDULE
a. Deadline for Joinder of Parties and Amendment of Pleadings: Friday,
February 10, 2017.
b. Discovery Cut-off: Friday, September 1, 2017.
c. Dispositive Motion Deadline: Friday, October 6, 2017.
d. Expert Witness Disclosure:
1. Anticipated fields of expert testimony: Plaintiffs anticipate retaining
an expert to testify with respect to their economic loss as a result of Defendants’
conduct. Plaintiffs also anticipate retaining an expert to testify with respect to the
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management of a police force, including how to handle discipline, the promotional
process, and internal investigation. Defendants anticipate they may retain an expert in
one or more of the following fields: municipal/police practice and/or supervision; medical
and/or mental health; economics and/or accounting; and any topic identified by
Plaintiffs.
2. The Parties propose a limit of two (2) retained experts per side.
3. The Parties shall designate all experts and provide opposing
counsel with all information specified in Fed. R. Civ. P. 26(a)(2) on or before Monday,
June 5, 2017.
4. The Parties shall designate all rebuttal experts and provide
opposing counsel with all information specified in Fed. R. Civ. P. 26(a)(2) on or before
Monday, July 17, 2017.
Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no exception to the
requirements of the rule will be allowed by stipulation of the parties unless the
stipulation is in writing and approved by the court.
e. Identification of Persons to Be Deposed:
Name of Deponent Expected Length of Deposition
Donald Vagge 7 hours
Gary Shaklee 7 hours
City of Fort Collins 30(b)(6) 7 hours
John Hutto 7 hours
Lori Greening 7 hours
Elizabeth Rita 7 hours – Defendants object
Kennyberg Araujo 7 hours - Defendants request 10
Francis Gonzales 7 hours - Defendants request 10
Lt. John Pino 7 hours
JoAnne Sizemore 7 hours
Rita Davis 7 hours
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f. Deadline for Interrogatories: Interrogatories must be served on the
opposing party no later than 33 days before the discovery cutoff date. Responses to
same are due as required by Fed. R. Civ. P. 6(d) and 33(b)(2).
g. Deadline for Requests for Production of Documents and/or Admissions:
Requests for Production of Documents must be served on the opposing party no later
than 33 days before the discovery cutoff date. Responses to same are due as
required by Fed. R. Civ. P. 6(a) and 34(b)(2). The same deadlines apply for submission
of Requests for Admissions.
10. DATES AND FURTHER CONFERENCES
a. Status conferences will be held in this case at the following dates and
times:
________________________________________________________________
______________________________________________________________________
________________
b. A final pretrial conference will be held in this case on __________ at
_______ o’clock __.m. A Final Pretrial Order shall be prepared by the parties and
submitted to the court no later than seven (7) days before the final pretrial conference.
11. OTHER SCHEDULING MATTERS
a. Counsel have been unable to reach an agreement as to the amount of
time designated for Plaintiffs’ depositions as well as to the number of depositions that
may be taken in total. Defendants also object to Plaintiffs’ deposing Elizabeth Rita.
Besides these impasses, there are no discovery or scheduling issues on which counsel
were unable to reach an agreement.
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b. The Parties anticipate a five (5) day jury trial. All Parties have requested a
trial to a jury.
c. There are no pretrial proceedings that the Parties believe may be more
efficiently or economically conducted in any of the District Court’s facilities outside of
Denver, Colorado.
12. NOTICE TO COUNSEL AND PRO SE PARTIES
The parties filing motions for extension of time or continuances must comply with
D.C.COLO.LCivR 6.1(c) by submitting proof that a copy of the motion has been served
upon the moving attorney's client, all attorneys of record, and all pro se parties.
Counsel will be expected to be familiar and to comply with the Pretrial and Trial
Procedures or Practice Standards established by the judicial officer presiding over the
trial of this case.
With respect to discovery disputes, parties must comply with D.C.COLO.LCivR
7.1(a).
Counsel and unrepresented parties are reminded that any change of contact
information must be reported and filed with the Court pursuant to the applicable local
rule.
13. AMENDMENTS TO SCHEDULING ORDER
The Scheduling Order may be altered or amended only upon a showing of good
cause.
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DATED at Denver, Colorado, this _____ day of ______________, 2016.
BY THE COURT:
R. Brooke Jackson
United States District Judge
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SCHEDULING ORDER REVIEWED:
For Plaintiffs:
s/ Laura B. Wolf
Laura B. Wolf
Qusair Mohamedbhai
RATHOD | MOHAMEDBHAI LLC
2701 Lawrence Street, Suite 100
Denver, CO 80205
(303) 578-4400
(303) 578-4401 (f)
lw@rmlawyers.com
qm@rmlawyers.com
For Defendant City of Fort Collins:
s/ Cathy Havener Greer
Cathy Havener Greer
Wells, Anderson & Race, LLC
1700 Broadway, Suite 1020
Denver, Colorado 80290
(303) 830-1212
(303) 830-0898 (f)
cgreer@warllc.com
s/ Jenny Lopez Filkins
Jenny Lopez Filkins
Fort Collins City Attorney’s Office
City Hall West, 300 LaPorte Avenue
Fort Collins, CO 80521
(970) 416-2284
(970) 221-6327 (f)
jlopezfilkins@fcgov.com
For Defendant Donald Vagge:
s/ David R. DeMuro
David R. DeMuro
Vaughan & DeMuro
720 S. Colorado Blvd.
North Tower, Penthouse
Denver, Colorado 80246
(303) 837-9200
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ddemuro@vaughandemuro.com
For Defendant Gary Shaklee:
s/ Marni Nathan Kloster
Marni Nathan Kloster
Nathan Dumm & Mayer P.C.
7900 East Union Ave, Suite 600
Denver, Colorado 80237
(303) 691-3737
(303) 757-5106 (f)
mkloster@ndm-law.com
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