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Lemley v. Graham County

United States District Court, Ninth Circuit

September 23, 2013

Terry R. Lemley, Plaintiff,
Graham County, et al. Defendants.


JENNIFER G. ZIPPS, District Judge.

Pending before the Court is a Motion for Summary Judgment filed by Defendants Graham County, Mark Herrington, James Palmer and Drew John ("Defendants") on November 2, 2012.[1] (Doc. 55.) Plaintiff Terry Lemley ("Lemley") filed a response to the Motion on March 7, 2013.[2] (Doc. 66.) Defendants filed a reply on May 23, 2013. (Doc. 81.) On May 7, 2013, the Court ordered Defendants to file a controverting statement of facts in response to Plaintiff's separate statement of facts; Defendants filed their Controverting Statement of Facts on May 15, 2013.[3] (Docs. 76, 77.) Defendants seek summary judgment on Plaintiff's claims of national origin discrimination and retaliation. For the reasons stated herein, the Court will grant the Motion.[4]


Plaintiff is a former employee of Graham County's Eastern Arizona Regional Juvenile Detention Facility ("EARJDF"), a small facility which employees 13-16 staff and administrators. (DSOF 1, 6.)[5] Of those employees, at least five were Caucasian. (DSOF 9.) Plaintiff is also Caucasian and was born in the United States. (DSOF 2.) Plaintiff was hired by EARJDF in August, 2000. (DSOF 2.) In 2001, Plaintiff applied for a sergeant position; Fernando Castro, who is Hispanic, was selected for the position. (DSOF 24.) In 2003, Plaintiff was promoted to sergeant. (DSOF 3.) In 2005, Plaintiff was promoted to lieutenant. (DSOF 3.)

Plaintiff claims that Hispanic employees received more favorable treatment at EARJDF. According to Plaintiff, from the time he became a sergeant in 2005, whenever he dealt with disciplinary issues involving Hispanic employees, Assistant Administrator Michael Aranda, who is Hispanic, would interfere and try to lessen the charge or advise Plaintiff to disregard the problem. (DSOF 25.) In those situations, Assistant Administrator Aranda would also remind Plaintiff that Plaintiff was an at-will employee. (DSOF 25.) From August, 2005 until he left the County's employ, the County would not permit Plaintiff to take comp time for extra hours that he worked. (DSOF 26.) Due to staff shortages, it is not always possible for command personnel such as Plaintiff to take comp time. (DSOF 56.) Assistant Administrator Aranda was permitted to take comp time.[6] (DSOF 26.) When Sgt. Castro left employment with the County, he was paid for his unused comp time due to a clerical mistake. (DSOF 27; 59.) Plaintiff did not receive payment for his unused comp time when he resigned in September, 2010. (DSOF 27.) Plaintiff was permitted to take leave. (DSOF 55.)

In October, 2009, Plaintiff countermanded a schedule created by Sgt. Esgardo Luzania and Sgt. Robert Pruszynski because it did not assign detention officer Tandy Miller to the control room. (DSOF 32.) Also, in October, 2009, Sgt. Luzania, began spreading rumors that Plaintiff was having an affair with Miller. (DSOF 15.) Plaintiff complained to his supervisor, Assistant Administrator Aranda, but no action was taken. (DSOF 16.) On October 21, 2009, Plaintiff conveyed a report by Miller to Assistant Administrator Aranda and Administrator Gatwood which alleged misconduct by Sgt. Luzania. (DSOF 31.)

In January, 2010, Miller was assigned to work with Plaintiff preparing for the American Correctional Association (ACA) audit. (DSOF 10.) The audit was scheduled for August, 2010. (DSOF 11.) Also in January, 2010, Plaintiff ordered Sgts. Luzania and Pruszynski to change negative comments about Miller in her evaluation and advocated for Miller to receive a pay increase for her work on the ACA audit. (DSOF 33, 34.)

On May, 19, 2010, Plaintiff reprimanded Sgt. Luzania for insubordinate behavior after Sgt. Luzania questioned Plaintiff about bathroom inspection procedures during a meeting.[7] (DSOF 17; Doc. 77-1, pg. 6.)

On May 25, 2010, Plaintiff received a mark of "needs improvement" on his evaluation from Assistant Administrator Aranda.[8] (DSOF 18.) Assistant Administrator Aranda noted that Plaintiff "needs improvement on maintaining a professional respect for all subordinates." (DSOF 44.) The mark did not affect Plaintiff's pay or benefits. (DSOF 45.)

On May 26, 2010, Assistant Administrator Aranda informed Plaintiff that effective immediately, Aranda would be taking over Plaintiff's supervisory responsibilities in dealing with sergeants. (DSOF 19.) The decision to allocate supervisory responsibilities was made by Administrator Gatwood, who wanted Plaintiff to be able to focus on the ACA audit. (DSOF 47; Doc. 56-1, pg. 35.)

On May 29, 2010, Plaintiff submitted a formal complaint to Administrator Charles Gatwood regarding his compensation and the County's failure to allow him to take comp time, but no action was taken. (DSOF 18; 36; 58.) Plaintiff also submitted a complaint to Administrator Gatwood alleging that Plaintiff was being subjected to a hostile work environment in the form of rumors being spread about Plaintiff and Miller. (DSOF 36.)

In June or July, 2010, Plaintiff ordered that an inmate survey be conducted for the upcoming ACA audit. (DSOF 49.) When he received the completed surveys, Plaintiff noted some negative comments about himself.[9] (DSOF 50.)

On August 8, 2010, Plaintiff submitted a formal complaint to Graham County Manager Terry Cooper alleging that he was being retaliated against for opposing discrimination against Miller. (DSOF 20; 39.) Cooper initiated an investigation, but found insufficient evidence to support the complaint and dismissed it. (DSOF 20.)

On September 1, 2010, Plaintiff complained that Miller had been told not to work the rest of the week. (DSOF 43.) Plaintiff was told not to return to work for the rest of the week because of all the hard work Plaintiff had put in to the ACA audit. (DSOF 44; ...

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