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Tarango v. City of Bakersfield

United States District Court, E.D. California

July 7, 2017

EMILIO TARANGO, Plaintiff,
v.
CITY OF BAKERSFIELD, Defendant.

          PRETRIAL ORDER

          Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE.

         Emilio Tarango is an employee of the City of Bakersfield. He asserts the City is liable for discriminating against him on the basis of his hearing impairment through a failure to accommodate his disability, denial of promotions and other privileges and treating him with deliberate indifference. The City denies the allegations of discrimination.

         A.JURISDICTION/ VENUE

         This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction for Plaintiff's claims arising under state law pursuant to 28 U.S.C. § 1367. In addition, the events that gave rise to this action occurred in Bakersfield, California. Accordingly, venue is proper in the United States District Court for the Eastern District of California sitting in Bakersfield. See 28 U.S.C. § 1391.

         B. JURY TRIAL

         The parties demanded a jury trial in this matter. (Doc. 1 at 13; Doc. 14 at 14)

         C. UNDISPUTED FACTS

         1. Plaintiff is a profoundly deaf individual.

         2. Plaintiff's preferred language is American Sign Language.

         3. Plaintiff was hired by the City on September 5, 1995, as a Fleet Service Worker I.

         4. On March 1, 1999, Plaintiff was promoted to the position of Fleet Service Worker II.

         5. On March 23, 2015, Plaintiff was promoted to the position of Fleet Mechanic I.

         6. Plaintiff has been an employee of the City of Bakersfield for nearly 22 years and is still presently employed by the City.

         D. DISPUTED FACTS

         1. Plaintiff's primary language is American Sign Language.

         2. Plaintiff has a limited ability to communicate via speech, reading, or writing.

         3. Plaintiff requires an American Sign Language interpreter in order to participate in group meetings, meetings with management or supervisors, and trainings.

         4. Plaintiff was only promoted in 2015, after 16 years since his last promotion, because he had complained to Human Resources about not being provided accommodation for his disability and because he had filed a complaint with the California Department of Fair Employment and Housing (“DFEH”).

         5. Plaintiff has been overlooked for new job opportunities that arise in his workplace despite his seniority over other younger, non-deaf co-workers.

         6. Plaintiff has also been asked to train younger, non-deaf employees, who have then been promoted over him and given the ability to earn more pay.

         7. Plaintiff has also been denied the opportunity to attend and to equally participate in classes and receive further training, unlike other non-disabled co-workers.

         8. Throughout his employment, Plaintiff has made repeated requests for an ASL interpreter to facilitate effective communication, but these requests are routinely denied.

         9. In particular, Plaintiff has been forced to attend mandatory meetings without the benefit of an ASL interpreter.

         10. Plaintiff has never been provided an ASL interpreter for safety classes, which he is forced to sit through with his other co-workers despite the fact that he is unable to hear or participate by asking questions or understanding co-workers' questions and the answers thereto.

         11. Plaintiff has been subjected to exceptional scrutiny by his supervisors, who have treated him rudely and with deliberate indifference because he is deaf.

         12. This treatment has caused Plaintiff to feel belittled, humiliated, ashamed, and completely isolated, which has also led to anxiety and depression.

         13. Plaintiff has repeatedly advised Defendant about the Americans with Disabilities Act; that it is the law to provide him with Sign Language interpreters to ensure effective communication; that he does not feel Defendant has made any attempt to ensure reasonably equal treatment compared to his other younger, non-disabled co-workers; that he is losing out on promotional opportunities that he has requested; and that he is not being provided training with an ASL interpreter in order to be promoted and earn more pay.

         14. Despite Plaintiff's best efforts, Defendant has treated Plaintiff in a way that is deliberately indifferent to his rights as a disabled individual, and has repeatedly failed to accommodate Plaintiff's disability.

         15. The discriminatory behaviors hereinbefore described continue to the present day, and continue to cause Plaintiff to suffer embarrassment, violation of civil rights, emotional distress, and irreparable damage to his reputation and career prospects.

         16. As a direct and proximate result of Defendants' discrimination, Plaintiff has suffered and will continue to suffer damages in an amount within the jurisdiction of this court, the exact amount to be proven at trial. Such damages include:

a. loss of salary and other valuable employment benefits;
b. prejudgment interest and interest on the sum of damages at the legal rate, and;
c. other consequential damages, including damages for shame, humiliation, mental anguish and emotional distress caused by the conduct of Defendants.

         17. Whether Defendant failed to take reasonable steps to prevent discrimination, harassment, and retaliation within the workplace.

         18. Whether, and to what extent, Plaintiff is entitled to recover back-pay.

         19. Whether, and to what extent, Plaintiff is entitled to recover front-pay.

         20. Whether, and to what extent, Plaintiff is entitled to any form of compensatory damages for alleged emotional distress.

         21. Whether, and to what extent, Plaintiff is entitled to secure injunctive relief.

         22. Whether, and to what extent, Plaintiff is entitled to declaratory relief.

         23. Whether Defendant can prove any and all of its affirmative defenses

         E. DISPUTED LEGAL ISSUES

         None.

         F. DISPUTED EVIDENTIARY ISSUES

         Both parties intend to file motions in limine regarding the evidence to be used at trial.

         Plaintiff:

         Plaintiff will file a motion in limine to exclude any testimony, documents, and/or other evidence regarding substance abuse pursuant Fed.R.Evid. 401 and 403. Plaintiff will also file a motion in limine regarding Defendant's abandoned or legally insufficient affirmative defenses.

         Defendant:

         Defendant anticipates filing motions in limine as to various topics, including but not limited to: evidence of any insurance held by the City which may pay any damages awarded to Plaintiff; to bar evidence of speculative damages; to bar punitive damages; to bar evidence of speculation as to the denial of any promotions which Plaintiff allegedly did not obtain in the context of the City's Civil Service statutes, rules and regulations; on the issue of what evidence should be allowed outside the context of the applicable statute of limitations; exclusion of testimony regarding any alleged lost wages sustained by or medical special damages allegedly incurred by Plaintiff; no testimony from undisclosed experts; as to the financial condition of Plaintiff or Defendant; as to other actions filed against the Defendant; and, to preclude evidence not otherwise produced by Plaintiff in the context of written discovery responses. Defendant is also considering the propriety of other Motions in Limine at this point in time.

         At the hearing, counsel agreed as to the following:

1. Evidence related to any insurance held by the City which may pay any damages awarded to Plaintiff will not be admitted;
2. Evidence related to punitive damages will not be admitted;
3. Because the City does not assert that it lacked sufficient financial resources to make changes, if any were required, by the Americans with Disabilities Act, evidence related to City will not be admitted. Further, evidence of the plaintiff's financial condition will not be admitted.

         Consequently, these motions are GRANTED at this time.

         G. SPECIAL FACTUAL INFORMATION None.

         H. RELIEF SOUGHT

         Plaintiff

         Plaintiff seeks declaratory, injunctive, and equitable relief; compensatory damages; and attorneys' fees and costs. Specifically, Plaintiff seeks an injunction ordering the City to provide American Sign Language interpreters as necessary to enable him to enjoy equal opportunities and other privileges of employment in the workplace. Plaintiff seeks nominal damages in the event a jury finds liability but does not award compensatory damages.

         Defendant

         The City seeks dismissal of this case, costs, and attorneys' fees. (Doc. 14 at 14)

         I. ABANDONED ISSUES

         None.

         J.WITNESSES

         The following is a list of witnesses that the parties expect to call at trial, including rebuttal and impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed.R.Civ.P. 16(e); Local Rule 281(b)(10).

         Plaintiff's Witnesses

1. Emilio Tarango, Plaintiff

         2. Judy Shepard-Kegl, Ph.D., Plaintiff's expert witness

         3. Christine Tenter

         4. Miguel Raya

         5. Jane Garcia

         6. Marlene Valdez

         Defendants' Witnesses

         1. Christi Tenter (Plaintiff designated witness)

         2. Jaime Flores

         3. Miguel Raya (Plaintiff designated witness)

         4. Mike Vogel

         5. Mike Rogers

         6. Felix Romero

         7. ...


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