Jensen v. West Jordan City et al

Filing 310

MEMORANDUM DECISION AND ORDER: WJC's Motion in Limine to Exclude Mediation Communications 231 is GRANTED, and WJC's Motion for Reconsideration and Clarification of the Court's Ruling on Tolling of Plaintiff's Ti tle VII Claim 251 is DENIED. The court further concludes that the effective date of the settlement agreement between the parties is 4/29/2009, that WJC's Chief of Police and City Attorney are final policymakers for purposes of this action, and that the question of probable cause will be submitted to the jury. Signed by Judge Dale A. Kimball on 6/1/17. (dla)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

AARON JENSEN,
MEMORANDUM DECISION
AND ORDER

Plaintiff,
vs.
WEST JORDAN CITY, a Utah municipal
corporation,

Case No. 2:12-CV-736-DAK
Judge Dale A. Kimball

Defendant.
This matter is before the court on Defendant West Jordan City’s (“WJC’s”) Motion for
Reconsideration and Clarification of the Court’s Ruling on Tolling of Plaintiff’s Title VII Claim,
WJC’s and Plaintiff Aaron Jensen’s Objections to Pretrial Disclosures, and supplemental briefing
pursuant to the court’s instruction during the May 23, 2017, hearing. The court concludes that a
hearing would not significantly aid its determination of the issues presented in these documents.
Accordingly, the court issues the following Memorandum Decision and Order based on the
written submissions of the parties and the law and facts relevant to the pending issues.
STANDARD OF REVIEW
Although “[a] motion for reconsideration is not specifically provided for in the rules of
civil procedure, . . . it is within the court’s discretion to reconsider a previous order.” Baer v. Salt
Lake City Corp., No. 2:13-CV-336, 2016 WL 3546256, at *1 (D. Utah June 23, 2016). “Grounds
warranting a motion to reconsider include (1) an intervening change in the controlling law, (2)
new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest
injustice.” Id. (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)).

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EFFECTIVE DATE OF SETTLEMENT AGREEMENT
The parties disagree as to the effective date of the agreement settling Mr. Jensen’s sexual
harassment claims with WJC. The date is relevant for two major reasons: the effective date of the
agreement determines what communications will be excluded from trial as mediation
communications, and, as part of the agreement, Mr. Jensen released WJC from any claims as of
the date of the agreement. Mr. Jensen notes that, under Utah law, the practice of parties to
“memorialize in a more formal document agreements created in mediation . . . does not preclude
the enforcement or finality of the agreement created in mediation so long as the terms are
‘sufficiently definite as to be capable of being enforced.’” Patterson v. Knight, 391 P.3d 1075,
1078 (Utah 2017). Based on this law, Mr. Jensen argues that the settlement agreement between
Mr. Jensen and WJC was made effective on the date that the parties agreed to sufficiently
definite terms, which Mr. Jensen argues occurred before April 29, 2009, when the written
agreement was signed.
The court agrees with Mr. Jensen that, under Utah law, an enforceable agreement can be
created through mediation communications without a signed document. However, once an
agreement reached through mediation is memorialized into a signed document, the signed
document becomes the enforceable agreement and supersedes any other related oral or written
negotiations, even if those negotiations would have been sufficient in isolation to create an
enforceable agreement. See, e.g., Harrison v. Fred S. James, P.A., Inc., 558 F. Supp. 438, 443
(E.D. Pa. 1983) (“Under the [parole evidence] rule, any oral representations made during the
negotiation stage are merged in and superceded by the written agreement.”). Mr. Jensen is
essentially attempting to contradict terms of the written contract, in this case the effective date,
through references to prior negotiations, which Utah law does not allow. Tangren Family Trust

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v. Tangren, 182 P.3d 326, 330 (Utah 2008) (“[T]he parol evidence rule . . . operates . . . to
exclude evidence of contemporaneous conversations, representations, or statements offered for
the purpose of varying or adding to the terms of an integrated contract.”) Therefore, whether the
communications between Mr. Jensen and WJC would have been sufficient to create an
enforceable agreement at some point before April 29, 2009, is irrelevant because the agreement
was memorialized in a signed document on April 29, 2009. Therefore, in this case, the effective
date of the enforceable settlement agreement is April 29, 2009.
Having concluded that the effective date of the settlement agreement is April 29, 2009,
the court also grants WJC’s Motion in Limine to Exclude Mediation Communications [Docket
No. 231]. Specifically, the court excludes from evidence all communications between the parties
that meet the definition of “mediation communications,” as that term is defined in Utah’s
Uniform Mediation Act, that occurred on or before April 29, 2009. See Utah Code Ann. § 78B10-102(2) (defining “mediation communication” as “conduct or a statement, whether oral, in a
record, verbal, or nonverbal, that occurs during a mediation or is made for purposes of
considering, conducting, participating in, initiating, continuing, or reconvening a mediation or
retaining a mediator”). The court further notes that, pursuant to the terms of the settlement
agreement, April 29, 2009, represents the date before which Mr. Jensen has released all claims
against WJC.
TOLLING OF TITLE VII CLAIMS
On August 11, 2016, the court issued a Memorandum Decision and Order denying Mr.
Jensen’s Motion for Partial Summary Judgment and granting in part and denying in part WJC’s
Motion for Summary Judgment. In that Memorandum Decision and Order, the court concluded
that, although “discrete acts that occurred outside of the 300-day window prior to Mr. Jensen’s

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filing of the Charge of Discrimination with the EEOC are time barred, . . . genuine issues of
material fact exist as to whether equitable tolling should apply under the ‘misleading conduct’
doctrine.” Mem. Decision and Order, at 11, Aug. 11, 2016, ECF No. 186. On May 1, 2017, WJC
filed a Motion for Reconsideration and Clarification of the Court’s Ruling on Tolling of Mr.
Jensen’s Title VII Claim. In its motion, WJC argues that the court applied the wrong tolling law
and requests that the court clarify the evidentiary basis for the court’s conclusion that genuine
issues of material fact exist as to whether equitable tolling should apply. Specifically, WJC
argues that the court applied Utah’s “misleading conduct” doctrine for equitable tolling when, in
the Tenth Circuit, “a Title VII time limit will be tolled only if there has been active deception of
the claimant regarding procedural requirements.” Jarrett v. U.S. Sprint Commc’ns Co., 22 F.3d
256, 260 (10th Cir. 1994).
Although the court is aware of arguments against applying equitable tolling in this case
and understands the arguments regarding the appropriate standard for equitable tolling, for
purposes of admitting evidence at trial, the court will assume that equitable tolling applies. In
other words, the court will not exclude any evidence based solely on the objection that it is
outside of the 300-day window and equitable tolling should not apply. The court will clarify the
appropriate standard to apply for equitable tolling in the court’s instructions for the jury, which
the parties and the court will discuss in the jury instruction conference that will take place before
the final day of trial.
FINAL POLICYMAKERS
In its supplemental briefing, WJC asks the court to determine the question of law of
whether WJC’s Chief of Police or City Attorney has final policymaking authority regarding
WJC’s conduct related to Mr. Jensen’s claims. “‘[F]inal policymaking authority’ is a legal issue

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to be determined by the court based on state and local law.” Randle v. City of Aurora, 69 F.3d
441, 447 (10th Cir. 1995) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988)). In
the Tenth Circuit, to determine whether an individual is a “final policymaker,” a court should
consider the following three elements: “(1) whether the official is meaningfully constrained ‘by
policies not of that official’s own making’; (2) whether the official’s decisions are final—i.e., are
they subject to any meaningful review; and (3) whether the policy decision purportedly made by
the official is within the realm of the official’s grant of authority.” Id. at 448 (citations omitted).
WJC argues that the West Jordan City Code explicitly confers policymaking authority on
the City Council, West Jordan City Code § 1-6-5 (“As the legislative branch of city government,
the city council . . . establishes policy”), and tasks the City Manager with executing those
policies and ensuring that the executive and administrative activities of WJC are “consistent with
and fulfill the city council’s policies,” West Jordan City Code §§ 1-6-6, 1-7D-4(B). WJC further
argues that no final policymaking authority is delegated to department heads, such as the Chief
of Police or the City Attorney, because the policies and procedures manuals developed and
maintained by the department heads must have the “approval of the city manager.” West Jordan
City Code § 1-7C-2(B)(2). But Mr. Jensen argues that the West Jordan City Code also provides
that department heads “shall,” among other things, “[e]xercise authority over al subordinates,”
West Jordan City Code § 1-7C-2(B), and that the City Manager can delegate to the department
heads any duties the city manager “shall deem appropriate,” West Jordan City Code §§ 1-7-C1,
1-8-B2, F2. The West Jordan City Code further states that “[t]he designation of a duty or
responsibility [to a department head] shall constitute such authority as is necessary to effect the
duty or responsibility so imposed.” West Jordan City Code § 1-7C-2(C).

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Both parties seem to agree that the City Manager is a final policymaker of WJC. The
court agrees. The court also agrees with Mr. Jensen that the Chief of Police and the City
Attorney for WJC are both final policymakers for purposes of the policy decisions at issue in this
case. Although some of the decisions of the WJC Chief of Police and City Attorney are subject
to approval by the City Manager, the types of decisions at issue in this case, such as the decision
to initiate an internal investigation into personnel of the police department, the decision to pass
off the investigation to an outside agency, and the decision to provide or not provide evidence to
outside investigators, are the types of decisions over which the WJC Chief of Police and the City
Attorney are likely to have final policymaking authority that is not subject to meaningful review.
PROBABLE CAUSE
The court concluded in a previous Memorandum Decision and Order [Docket No. 186]
that genuine issues of material fact exist as to whether a reasonable jury would find probable
cause for Mr. Jensen’s arrest and continued prosecution in light of all material facts and
potentially exculpatory information. Despite the fact that the court recognized the existence of
genuine issues of material fact, WJC asks the court to determine, as a matter of law, whether
there was probable cause accepting Mr. Jensen’s allegations as true. “[T]he existence of probable
cause is generally a mixed question of law and fact.” Roberts v. Cottonwood Heights City, No.
2:15-CV-839 TS, 2016 WL 2344219, at *3 (D. Utah May 3, 2016) (unpublished). “If the facts
are undisputed, the question of probable cause is one for the court to decide as a matter of law. If
the facts tending to establish the existence or want of existence of probable cause are in dispute,
it becomes the duty of the trial court to submit the question to the jury.” Webb v. Airlines
Reporting Corp., 57 F.3d 1081, at *2 (10th Cir. 1995) (unpublished) (citation omitted). Because

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the court finds that facts related to probable cause are in dispute, the court will perform its duty
of submitting the question to the jury.
EVIDENTIARY OBJECTIONS
Both parties have raised objections to witnesses and exhibits in the other party’s pretrial
disclosures. The court has already decided some of those objections through its rulings on the
parties’ motions in limine, and the court will not reconsider those rulings. Those objections have
been preserved on the record and do not need to be repeated. Some of the objections have also
been rendered moot by the Pretrial Order that was agreed to by both parties. The court will
decide all other objections raised by the parties during the trial when the evidence is presented
with the benefit of the foundation and the context available at the trial.
CONCLUSION
Based on the above reasoning, WJC’s Motion in Limine to Exclude Mediation
Communications [Docket No. 231] is GRANTED, and WJC’s Motion for Reconsideration and
Clarification of the Court’s Ruling on Tolling of Plaintiff’s Title VII Claim [Docket No. 251] is
DENIED. The court will clarify the appropriate standard for equitable tolling on that claim in the
jury instructions. The court further concludes that the effective date of the settlement agreement
between the parties is April 29, 2009, that WJC’s Chief of Police and City Attorney are final
policymakers for purposes of this action, and that the question of probable cause will be
submitted to the jury.
DATED this 1st day of June, 2017.
BY THE COURT:

_________________________________________
DALE A. KIMBALL
United States District Judge
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