Joint Discovery/Case Management Plan (00367842).DOC



IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

Nadiya Williams-Boldware §

§

Plaintiff §

§

v. § Civil Action No. 4:09-CV-00591

§ (Judge Schneider/Judge Mazzant)

Denton County, Texas §

Denton County Criminal District §

Attorney, Cary Piel, Susan Piel, §

Ryan Calvert §

§

Defendants §

JOINT DISCOVERY/CASE MANAGEMENT PLAN

NOW COME Plaintiff Nadiya Williams-Boldware (“Plaintiff”) and Defendants Denton County, Texas, Cary Piel, Susan Piel, and Ryan Calvert (“Defendants”), and, in accordance with the Court’s February 10, 2010, Order, submit the following Joint Discovery/Case Management Plan:

State where and when the conference among the parties required by FED. R. CIV. P. 26(f) was held, and identify the counsel who attended for each party, including name, address, bar number, phone and fax numbers, and email address.

On February 26, 2010, the parties, through their counsel, met via telephone, and held the conference required by Federal Rule of Civil Procedure 26(f). The counsel in attendance were

William E. Trantham

State Bar No. 20187000

1710 West University Dr., Suite A

Denton, TX 76201

(940) 380-1016

(940) 387-2849 fax

tranthamlawfirm@

Lead Counsel for Plaintiff

Thomas P. Brandt

State Bar No. 02883500

Fanning Harper Martinson Brandt & Kutchin, P.C.

Two Energy Square

4849 Greenville Ave. Suite 1300

Dallas, Texas 75206

(214) 369-1300 (office)

(214) 987-9649 (telecopier)

tbrandt@

Lead Counsel for Defendants

List any related cases pending in any state or federal court. Include the case numbers, the courts, and how they are related.

None.

Briefly described in 3 pages or less: (1) What this case is about and (b) Each claim or defense.

This is an employment discrimination/harassment/retaliation case brought by an employee against her employer(s) and various co-workers.

Claims

The factual recitation included in Plaintiff's active complaint sets forth in detail the events the claims will attempted to be reduced in accordance with the directions above.

Plaintiff is an African-American female employed by Denton County, Texas/Denton County Criminal District Attorney asserting claims of racial harassment, discrimination, hostile work environment and retaliation arising out of the conduct of the individual defendants in this matter and the conduct of her employers as a result of that conduct.

Plaintiff's misdemeanor trial division was and is supervised in name, in part, by Susan Piel, the wife of Cary Piel and sister of Ryan Calvert. Susan Piel, as misdemeanor chief, is responsible in large part for the hiring and firing of misdemeanor prosecutors. In fact, as a result of the manner in which the office of the Criminal District Attorney is “run” by the elected official, the control of the office with regards to the hiring, firing and advancement of misdemeanor prosecutors is by and through Cary Piel, Susan Piel and Ryan Calvert.

Plaintiff was subjected to virulent racist conduct by Cary Piel. Plaintiff reported that conduct to her immediate supervisor and that conduct was then made known to Paul Johnson (elected Criminal District Attorney) and Jamie Beck (First Assistant). Prior to discussing the conduct with either Paul Johnson or Jamie Beck, John Rentz harassed Plaintiff for her reporting the conduct to her immediate supervisors. Plaintiff then met with Paul Johnson and Jamie Beck regarding the racist conduct of both Cary Piel and John Rentz which created a hostile environment for Plaintiff.

After the meeting with Paul Johnson and Jamie Beck, Plaintiff met with Susan Piel requesting her assistance with the racist conduct. Susan Piel, instead of assisting Plaintiff as she had assisted others under her supervision in the past, elected to not get involved as the racist offender was her husband. Plaintiff then met with Cary Piel who confirmed his past behavior and made a vague attempt at an apology which was not believed by Plaintiff (Plaintiff was correct in her belief as the racist conduct of Cary Piel persisted even after allegedly being made to attend a “sensitivity” class). Plaintiff then met with Susan Piel again, once again, seeking her protection and assistance. Rather than protect and assist Plaintiff, Susan Piel, despite having the authority and the ability as shown by her conduct in the past, remained uninvolved.

The approval of the racist environment was then shown by the Denton County Criminal District Attorney's office in the trial of the very case that brought the racist comments to Plaintiff as, despite having the knowledge of the racist conduct, Cary Piel was allowed to try the matter. In the trial, Cary Piel was allowed to strike all African-American jurors despite a Batson challenge being made. At no time did any member of the Denton County Criminal District Attorney's office inform either the trial judge or the counsel for the defendant of the racist comments of Cary Piel.

It was represented to Plaintiff that Cary Piel was made to attend a “sensitivity” class in April 2009. On July 16 2009, Cary Piel appeared in the doorway of an adjacent office to Plaintiff and made additional racist remarks made for the benefit of Plaintiff. Plaintiff then delivered a memorandum to Paul Johnson regarding the continuing racist conduct of Cary Piel. In response to the memo, Paul Johnson requested that Plaintiff not deliver a copy to the Denton County Human Resources department. Ultimately, Plaintiff did deliver that complaint to the Human Resources department and prior to that delivery witnessed Paul Johnson and Cary Piel in a show of solidarity. The Human Resources department never contacted Plaintiff regarding her complaint other than to forward her a perfunctory letter.

Despite the awareness of all involved as to the continuing racist conduct of Cary Piel, neither the Criminal District Attorney's office nor the Human Resources department have further disciplined Cary Piel or protected Plaintiff from his conduct. After being informed that no further discipline would occur, Plaintiff witnessed conduct between Paul Johnson and Cary Piel indicating, again, his approval of and the solidarity between Cary Piel and Paul Johnson.

In October 2009, the racist conduct was expanded to include Ryan Calvert who made comments indicating his approval of Cary Piel's actions and his disapproval of Plaintiff's exacerbating the hostile work environment. Again, Susan Piel did nothing to protect Plaintiff from this conduct nor did she attempt to have Ryan Calvert, her brother, disciplined for his conduct.

Susan Piel, in addition to the conduct above, has excluded Plaintiff from normal office interaction with employees which is believed to be attributable to the racist attitudes of all involved. In addition, counsel for Plaintiff discovered after the filing of the initial complaint in this matter that Cary Piel was conducting racist activity as far back as 2008 with same being reported to Paul Johnson.

Plaintiff claims that the acts of Denton County and the Denton County Criminal District Attorney's office violate Title VII (42 U.S.C. §§ 2000(e)) as the conduct above constitutes racial and color harassment/discrimination and for creating and maintaining a hostile work environment as Plaintiff, being a minority (protected class), was subjected to harassment and discrimination based on her race and color which was severe and pervasive that affected a term, condition and/or privilege of her employment, Denton County and the Denton County Criminal District Attorney's office were more than aware of the harassment but failed to take prompt remedial action thereby creating a hostile work environment. Defendants Cary Piel and Ryan Calvert intentionally and knowingly subjected Plaintiff to racial harassment/discrimination and Defendant Susan Piel failed, entirely, to protect Plaintiff from that harassment/discrimination. These county defendants are not entitled to immunity based upon their actions and inactions set forth above.

Plaintiff claims that the acts of Cary Piel, Susan Piel and Ryan Calvert 42 U.S.C. § 1981 (through 42 U.S.C. § 1983) as the conduct above constitutes racial and color harassment/discrimination and for creating and maintaining a hostile work environment as Plaintiff, being a minority (protected class), was subjected to harassment and discrimination based on her race and color which was severe and pervasive that affected a term, condition and/or privilege of her employment, each of the individual defendants were more than aware of the harassment but failed to take prompt remedial action thereby creating a hostile work environment. Defendants Cary Piel and Ryan Calvert intentionally and knowingly subjected Plaintiff to racial harassment/discrimination and Defendant Susan Piel failed, entirely, to protect Plaintiff from that harassment/discrimination. In addition, the individual defendants, being the de facto employer of Plaintiff, excluded Plaintiff from promotions and opportunities she is and was qualified for due to her race and color. None of these individual defendants are entitled to qualified immunity as each of them were aware that their conduct was clearly established to be discriminatory in nature and harassing.

Defenses

Defendants generally deny that they have discriminated against, retaliated against or created a hostile work environment for Plaintiff. Defendants deny that they have acted against Plaintiff based on any racial animus or discriminatory or retaliatory motive.

Defendants contend that Plaintiff has failed to state a claim upon which relief may be granted because the allegations contained in Plaintiff’s amended complaint do not constitute violations of federal law or the United States Constitution. Defendants contend that Plaintiff’s allegations amount to actions for which neither Title VII nor the United States Constitution provides a remedy.

Denton County contends that Plaintiff’s failure to promote and retaliation claims brought pursuant to Title VII should be dismissed because Plaintiff failed to exhaust those claims before the EEOC.

Denton County contends that Plaintiff has not alleged a retaliation claim in her amended complaint.

Denton County contends that, to the extent Plaintiff proves any discriminatory or retaliatory actions in violation of Title VII, Denton County would have taken the same actions absent the discriminatory or retaliatory motive and, in addition, Plaintiff failed to make use of procedures provided by Denton County for the resolution of allegations of discriminatory or retaliatory conduct.

Cary Piel, Susan Piel and Ryan Calvert (“the Individual Defendants”) contend that they are entitled to qualified immunity. The Individual Defendants contend that they are entitled to qualified immunity both because Plaintiff has not alleged the violation of the United States Constitution or any federal law and because, even assuming Plaintiff has alleged such a violation, it was not clearly established that the Individual Defendants actions or alleged actions would constitute a violation of the United States Constitution or any federal law.

Specify the basis of federal jurisdiction.

Plaintiff contends that this Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331 because this action arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), 42 U.S.C. § 1981, and 42 U.S.C. § 1983.

Identify the parties who disagree with plaintiff’s jurisdictional allegations and state the reasons for disagreement.

Defendant Denton County contends that the Court lacks jurisdiction over Plaintiff’s “failure to promote” and retaliation claims because Plaintiff has not exhausted those claims with the EEOC.

List anticipated additional parties that may be included, when they might be added and by whom.

None.

List anticipated intervenors.

None.

Describe any class-action or collective-action issues.

None.

State whether the parties are exempt from initial disclosures under Rule 26(a)(1)(E).

No.

State whether each party represents that it has made the initial disclosures required by Rule 26(a)(1). If not, describe the arrangements that have been made to complete the disclosures.

The parties have not made initial disclosures. The parties have agreed to provide initial disclosures by April 16, 2010.

Describe the proposed discovery/case management plan, including:

In accordance with Rule 26(f):

Any changes that should be made in the timing, form, or requirement for disclosures under Rule 26(f).

Disclosures will be made by April 16, 2010.

The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on limited issues.

Plaintiff contends that limited discovery should be allowed 1) to properly develop the qualified immunity claims and 2) for anticipated transient information.

Defendants contend that no discovery should proceed until Cary Piel’s, Susan Piel’s, and Ryan Calvert’s assertion of qualified immunity has been finally resolved.

The parties anticipate that discovery will be conducted regarding the allegations contained in Plaintiff’s amended complaint.

Any issues relating to disclosure and discovery of electronically stored information (ESI), including the form(s) in which it should be produced.

None.

The steps already taken or that will be taken for preserving discoverable information, including ESI.

Plaintiff has worked to preserve discoverable information, including ESI.

Defendants have worked to preserve discoverable information, including ESI.

Any issues relating to claims of privilege or protection, including whether any agreement has been reached as to inadvertent production.

Plaintiff contends that limited discovery should be allowed 1) to properly develop the qualified immunity claims and 2) for anticipated transient information.

Defendants contend that no discovery should proceed until Cary Piel’s, Susan Piel’s, and Ryan Calvert’s assertion of qualified immunity has been finally resolved.

Any changes that should be made in the limitations on discovery imposed by the Rules, whether federal or local, and any other limitations that should be imposed.

Plaintiff contends that limited discovery should be allowed 1) to properly develop the qualified immunity claims and 2) for anticipated transient information.

Defendants contend that no discovery should proceed until Cary Piel’s, Susan Piel’s, and Ryan Calvert’s assertion of qualified immunity has been finally resolved.

When and to whom plaintiff anticipates sending interrogatories.

Plaintiff anticipates forwarding interrogatories to the named Defendants in this matter after completion of initial discovery of productions and admissions after Defendants file a proper answer in this matter.

When and to whom defendant anticipates sending interrogatories.

Defendant(s) anticipate(s) sending interrogatories to Plaintiff Nadiya Williams-Boldware within sixty days after the Individual Defendants motion to dismiss based on qualified immunity is finally resolved. Depending on the information derived from Defendant(s)’s initial set of written discovery, it may be necessary to propound additional interrogatories.

Of whom and by when plaintiff anticipates taking oral depositions.

Plaintiff anticipates, after Defendants have properly answered and written discovery is completed, taking the oral depositions of the individual defendants (Cary Piel, Susan Piel, Ryan Calvert) and individuals involved in the Denton County Criminal District Attorney's Office (Paul Johnson, Jamie Beck, Tom Whitlock, Caroline Simone, Rebecca Lively, Shannon Miller, Allison Sartin, Matthew Shovlin, Michael Graves, George Mitcham, Forrest Beadle, John Rentz, Elliot Reed) and individuals involved in the Denton County Human Resources Office (Amy Phillips, Georgiana McCoig)

Other depositions of individuals identified in the foregoing depositions or other written discovery responses may become necessary but Plaintiff is unable to list such unknown individuals at this time.

Of whom and by when defendant anticipates taking oral depositions.

Defendant(s) anticipate(s) taking the oral deposition of Plaintiff Nadiya Williams-Boldware within sixty to ninety days after finishing written discovery.

When plaintiff (or the party with the burden of proof on an issue) will be able to designate experts and provide the reports required by Rule 26(a)(2)(B), and when the opposing party will be able to designate responsive experts and provide their reports.

Defendants contend that the case should be stayed pending a final resolution of the qualified immunity defense of the Individual Defendants.

When plaintiff (or the party with the burden of proof on an issue) anticipates taking expert depositions and the anticipated completion date.

Plaintiff anticipates taking expert depositions, as needed, after the expert disclosure deadline and before the close of discovery.

When the opposing party anticipates taking expert depositions and the anticipated completion date.

Defendant(s) anticipate(s) taking expert depositions, as needed, after the expert disclosure deadline and before the close of discovery.

Whether there should be separate deadlines for the completion of fact discovery and expert discovery.

No.

If the parties disagree on any part of the discovery plan, describe the opposing views.

Plaintiff contends that limited initial discovery should be allowed 1) to properly develop the qualified immunity claims and 2) for anticipated transient information.

Specify any discovery beyond the initial disclosures that has taken place to date.

None.

State the date the planned discovery can reasonably be completed.

Plaintiff contends that this case should not be stayed completely as Plaintiff will require discovery to be conducted on at least the issues of qualified immunity and anticipated transient information.

Defendants contend that this case should be stayed pending a final resolution of the qualified immunity defense of the Individual Defendants.

State the progress made toward settlement, and the present status of settlement negotiations by providing the information set out below.

Describe the possibilities for a prompt settlement or resolution of the case that were discussed in the Rule 26(f) meeting.

A prompt settlement or resolution is unlikely.

Describe what each party has done or agreed to do to bring about a prompt resolution of this case.

Nothing has been done at this point as Defendants have no incentive to negotiate pending the outcome of their immunity claims.

State whether a demand and an offer have been made.

No demands or offers have been made.

From the attorneys’ discussions with their client(s), state the alternative dispute resolution technique (e.g., mediation, arbitration, or summary jury trial) that would be reasonably suitable for resolving this case and when it would be most effective (e.g., before discovery, after limited discovery, at the close of discovery).

No alternative dispute resolution technique should be used until after the issue of qualified immunity is finally resolved. The parties believe that mediation would not be appropriate until after the close of discovery.

If mediation is the preferred ADR technique and the parties have agreed on a specific mediator, state the name and address of the mediator.

The parties have not agreed on a mediator.

United States Magistrate Judges are vested with full authority to try both jury and nonjury trials. State whether the parties agree to trial before a United States Magistrate Judge.

The parties do not agree to trial before a United States Magistrate Judge.

State whether a jury demand has been made and if it was made on time.

A jury demand has been made and it was made on time.

Specify the number of hours it will take to present the evidence in this case.

The parties estimate that it will take approximately 20 hours to present the evidence in this case.

List any pending motions that could be ruled on at the Scheduling Conference.

Currently pending before Judge Mazzant are Denton County’s Second Motion to Dismiss [Docket No. 22] and Defendants’ Second Motion to Dismiss Based on Qualified Immunity [Docket No. 23].

List all other pending motions.

None.

Indicate other matters peculiar to this case, including discovery, that deserve the special attention of the court at the Scheduling Conference.

Defendants Cary Piel, Susan Piel and Ryan Calvert contend that they are entitled to qualified immunity, both from liability and from suit. As such, the Individual Defendants are entitled to a stay of the case until their qualified immunity has been finally resolved. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009).

Certify that all parties have filed Disclosure of Interested Persons as directed in paragraph 3 in the Order to Meet, Report and Appear at Scheduling Conference, listing the date of the original and any amendments.

Plaintiff certifies that she filed her Disclosure of Interested Persons on February 25, 2010. See Docket No. 27.

Defendants certify that they filed their Disclosure of Interested Persons on February 25, 2010. See Docket No. 26.

Proposed Dates for Scheduling. Please review the proposed deadlines for many of the pretrial events (listed below) that will be scheduled for this case. Both the events and the proposed dates are intended to give the parties guidance in (1) formulating answers to the other parts of this questionnaire and (2) scheduling the events preceding the trial. The Scheduling Order that will be entered at the Scheduling Conference will necessarily be more specific, more detailed, and contain additional matters and discovery limitations. The court’s suggested dates and events may be appropriate for this case. If not, please propose suggested modifications that the parties believe are suited for this lawsuit. As indicated below by asterisks, some dates and events are “inflexible” because of limited judicial resources and the court’s calendar.

Defendants contend that this case should be stayed pending a final resolution of the qualified immunity defense of the Individual Defendants.

|PRETRIAL EVENTS |COURT’S PROPOSED DATES |PLAINTIFF’S PROPOSED DATES |DEFENDANTS’ PROPOSED |

| | | |DATES[1] |

|Rule 26(f) meeting* |March 3, 2010 | | |

|File case management plan* |March 10, 2010 | | |

|Rule 16(b) scheduling conf.* |March 17, 2010 | | |

|Deadline to add additional parties |June 25, 2010 | |See note below |

|Deadline to amend pleadings |June 25, 2010 | |See note below |

|Deadline to file motions to dismiss |July 9, 2010 | |See note below |

|Exchange privilege logs |August 9, 2010 | |See note below |

|Deadline for plaintiff to designate expert|September 8, 2010 | |See note below |

|witnesses & reports | | | |

|Deadline for defendant to designate expert|October 8, 2010 | |See note below |

|witnesses & reports | | | |

|Discovery deadline |November 8, 2010 | |See note below |

|Deadline to complete ADR |November 15, 2010 | |See note below |

|Deadline to file dispositive motions* |November 22, 2010 | |See note below |

|Deadline to file joint pretrial order, |February 7, 2011 | |See note below |

|motions in limine & joint proposed jury | | | |

|instructions (or proposed findings of fact| | | |

|& conclusions of law) | | | |

|Pretrial conference & trial scheduling* in|March 7, 2011 | |See note below |

|Sherman, Texas | | | |

List the name, bar number, address, email address, and telephone number of counsel and any unrepresented person who will appear at the Scheduling Conference on behalf of the parties. Appearing counsel must be an attorney of record, have full authority to bind clients and enter into stipulations regarding all matters that may be discussed.

William E. Trantham

State Bar No. 20187000

1710 West University Dr., Suite A

Denton, TX 76201

(940) 380-1016

(940) 387-2849 fax

Reslay42@

Lead Counsel for Plaintiff

Thomas P. Brandt

State Bar No. 02883500

Fanning Harper Martinson Brandt & Kutchin, P.C.

Two Energy Square

4849 Greenville Ave. Suite 1300

Dallas, Texas 75206

(214) 369-1300 (office)

(214) 987-9649 (telecopier)

tbrandt@

Lead Counsel for Defendants

Respectfully submitted,

   /s/ William E. Trantham               

WILLIAM E. TRANTHAM

State Bar No. 20187000

CHRIS RAESZ

State Bar No. 16460150

1710 West University Dr., Suite A

Denton, TX 76201

(940) 380-1016

(940) 387-2849 fax

res1ay42@

ATTORNEYS FOR PLAINTIFF

NADIYA WILLIAMS-BOLDWARE

   /s/ Thomas P. Brandt                   

Thomas P. Brandt

State Bar No. 02883500

tbrandt@

Joshua A. Skinner

State Bar No. 24041927

jskinner@

Fanning Harper Martinson

Brandt & Kutchin, P.C.

Two Energy Square

4849 Greenville Ave., Suite 1300

Dallas, Texas 75206

(214) 369-1300 (office)

(214) 987-9649 (telecopier)

Attorneys for Defendants

-----------------------

[1] Defendants contend that this case should be stayed pending the final resolution of the Individual Defendants’ entitlement to qualified immunity. In light of this position, it is unrealistic to assign deadlines to the various items listed.

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