Brandon et al v. Liddy et al

Filing 126

CONSOLIDATION ORDER - LEAD CASE granting 121 Brandon's Motion to Consolidate lead case CV-12-788-PHX with member case CV-13-1148-PHX. IT IS FURTHER ORDERED denying 101 Brandon's Motion for Partial Summary Judgment; 106 County's Motion for Summary Judgment; granting 115 County's Motion to Strike and denying 118 Brandon's Motion for leave to file a Converting Statement. Signed by Senior Judge Frederick J Martone on 10/23/13. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiffs,
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vs.
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Tom Liddy et al,
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Defendants.
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Maria Brandon et al,
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Plaintiffs,
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vs.
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Douglas Irish et al,
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Defendants.
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Maria Brandon et al,

No. CV 12-788-PHX-FJM
No. CV 13-1148-PHX-GMS
ORDER

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The court has before it Brandon’s Motion for Partial Summary Judgment (doc. 101),
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the defendants’[hereinafter “the County”] Response, Brandon’s Reply, the County’s Motion
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for Summary Judgment (doc. 106), Brandon’s Response , the County’s Reply, the County’s
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Motion to Strike (doc. 115), Brandon’s Response and Motion for Leave to File (doc. 118),
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the County’s Reply, Brandon’s Motion to Consolidate (doc. 121), the County’s Response and
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Brandon’s Reply.
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This is an employment action brought by a long time county attorney against the

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County and its employees alleging federal claims under § 1983 for First Amendment and Due

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Process violations, and state claims for wrongful discharge and interference with contractual

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relations. We had earlier dismissed the remaining claims. Order of Sept. 13, 2012 (doc. 49).

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The facts that matter are not in dispute (although the inferences to be drawn from them

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certainly are). Brandon was a county attorney for many years. She retired but was hired

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back as a contract lawyer. She then moved over to a new office the county had created in

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connection with its dispute with the then elected county attorney. The state courts concluded

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that the new office was unlawful and the county had to use the county attorney. So, Brandon

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moved back to the county attorney’s office, shortly after which she was fired without a

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hearing of any kind, before or after the discharge.

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Brandon claims she was fired because the County was unhappy with a single comment

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she made to a newspaper in connection with the County’s decision to settle a number of

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cases. The County claims they fired her because of aggressive behavior towards a paralegal.

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The County also claims she was not entitled to a hearing because she was a probationary

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employee.

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From the moment the comment appeared in the paper, the County instructed the

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county attorney to take Brandon off its cases. Slowly but surely, the county attorney did.

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When Brandon repeatedly asked a paralegal how she knew about the reassignment of cases

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the paralegal assaulted Brandon.

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This is a jury case. There is sufficient evidence from which a jury could find that the

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reassignment of cases from Brandon and her discharge were animated by the County’s

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reaction to the comment in the paper. There is also evidence from which a jury could find

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that the paralegal was the aggressor and the discharge based on that event was mere pretext.

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They need not, of course. Thus, summary judgment is not appropriate on the First

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Amendment claim.

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There is also evidence from which a jury could find that Brandon’s “probationary”

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period was form over substance. She had, after all, worked in the county attorney’s office
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longer than most anybody–what more did the County need to know about her work? A jury

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could find the machinations over the creation of a new office and the application of confusing

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county employment rules to Brandon to be absurd. If they make that finding, she was

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entitled to a hearing of some kind. Thus, summary judgment is not appropriate on the Due

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Process claim.

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Under A.R.S. § 23-1501(3)(d), a public employee has a claim against an employer for

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termination of employment if the employee has a right to continued employment under the

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United States Constitution, state statute or regulation or policy of a political subdivision.

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Thus, if the jury finds in favor of Brandon on the federal claims, it will be entitled to find in

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favor of Brandon on the state wrongful termination claim. Thus, summary judgment is not

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appropriate on the state wrongful termination claim.

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There is sufficient evidence from which a jury could find that Wilson and Armfield

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caused Liddy or Irish to terminate Brandon. Thus, for the reasons stated in our Order of

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Sept. 13, 2012 at 8-9 (doc. 49), summary judgment on the interference with contract claim

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is not appropriate.

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The County’s Motion to Strike is well taken because Statements of Facts are governed

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by LRCiv 56.1(a) and (b). No Statement of Fact is allowed on a Reply. Nor do we need one.

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Brandon seeks consolidation of the case against Irish. The County opposes solely on

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the basis that Brandon missed the deadline for amending the complaint in 12cv788 to add

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Irish and is using 13cv1148 as a vehicle to circumvent that. The amended pleading deadline

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is designed to ensure that late entry into a case by a new party does not adversely affect the

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existing Rule 16 Scheduling Order. Here, the Case Management Order in 13cv1148 (doc.

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16), expressly adopts the deadlines in 12cv788, except as to a new dispositive motion

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deadline for Irish of November 22, 2013. This acknowledges that the cases are the same and

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that no new discovery is required. The proposed pretrial order deadline is the same (January

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24, 2014), and thus the final pretrial conference (January 31, 2014) and the firm trial date

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(February 11, 2014) work for both cases. Indeed, had the parties moved for leave to amend

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the complaint to add Irish in 12cv788 and represented that the existing Rule 16 Scheduling
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Order would not have been adversely affected, we would have granted such a motion.

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Consolidation makes sense under Rule 42, Fed. R. Civ. P.

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Accordingly, it is ORDERED as follows:

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DENYING Brandon’s Motion for Partial Summary Judgment (doc. 101);

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DENYING the County’s Motion for Summary Judgment (doc. 106);

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GRANTING the County’s Motion to Strike (doc. 115);

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DENYING Brandon’s Motion for leave to file a Controverting Statement (doc. 118);

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GRANTING Brandon’s Motion to Consolidate 13cv1148 with 12cv788 (doc. 121).

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DATED this 23rd day of October, 2013.

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