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MONTOYA, LUCERO

&

PASTOR

A PROFESSIONAL ASSOCIATION OF LAWYERS

3200 NORTH CENTRAL AVENUE, SUITE 2550

PHOENIX, ARIZONA 85012

Stephen Montoya (#011791)

Montoya, Lucero & Pastor, P.A.

3200 North Central Avenue, Suite 2550

Phoenix, Arizona 85012

602-256-6718 (telephone)

602-256-6667 (fax)

stephen@montoyalawgroup.com

Attorney for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Maria Bruner and Laura Cerda,

Plaintiffs,

vs.

City of Phoenix, an Arizona Municipal 

Corporation,

Defendant.

No. CV 18-00664-PHX-DJH

JOINT SUMMARY OF DISCOVERY 

DISPUTE REGARDING 

AMENDMENTS TO 

ADMINISTRATIVE REGULATION 

(AR) 2.35

The parties submit this joint summary of discovery dispute.1

1 Counsel have attempted to resolve this matter through multiple letters, personal 

consultations and sincere effort, but have not been able to resolve this discovery dispute.

Case 2:18-cv-00664-DJH Document 81 Filed 06/25/19 Page 1 of 4
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MONTOYA, LUCERO 

&

PASTOR

A PROFESSIONAL ASSOCIATION OF LAWYERS

3200 NORTH CENTRAL AVENUE, SUITE 2550

PHOENIX, ARIZONA 85012

Plaintiffs’ Position: In the parties’ Proposed Case Management Plan, at p. 4, the City 

admits it “investigated Ms. Bruner’s complaint [of discrimination] pursuant to the City’s 

Administrative Regulation 2.35 [the City’ anti-discrimination policy]. In July 2017, the 

investigation concluded that Ms. Bruner’s allegations of discrimination and retaliation were 

not a violation of Administrative Regulation 2.35 because they were untimely.” Under AR 

2.35, an employee had only 180 days in which to file a complaint of discrimination, and the 

City would not investigate complaints filed outside the deadline. However, only after the 

City’s 180 day deadline was ridiculed in the media in connection with this very case, the 

City amended AR 2.35 to extend the deadline to 300 days on January 16, 2019, which 

reflects the 300 day deadline in which to file a charge of discrimination with the EEOC.

On January 17, 2019, Plaintiffs noticed the City’s 30(b)(6) deposition regarding the 

amendment to AR 2.35. Just three days before the deposition, the City’s lawyers asked to 

reschedule the deposition due to “personal and professional” (but otherwise unspecified) 

“logistical” issues. Plaintiffs’ counsel granted the request as a professional courtesy. 

However, after Plaintiffs agreed to reschedule the deposition, defense counsel repudiated 

their promise to proceed with the deposition at another time and contended that this area of 

questioning was irrelevant and otherwise impermissible. The City also refused to provide 

Plaintiffs any documents regarding amending AR 2.35.

In its answer to Plaintiffs’ Complaint, the City raised the affirmative defense 

recognized in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), that it took “prompt 

and effective corrective” measures in response to Plaintiffs’ complaints of discrimination. 

Because the City has already admitted that amendment to AR 2.35 constituted a subsequent 

“remedial measure,” the recent amendments to AR 2.35 were clearly taken in response to 

Plaintiffs’ complaints of discrimination. Because the City is invoking the Faragher defense, 

Plaintiffs have the right to engage in discovery regarding the City’s remedial actions, 

including its recent amendments to AR 2.35. The history of the amendments is accordingly 

subject to discovery in this case, and the Court should order the City to proceed with the 

Rule 30(b)(6) deposition and produce all relevant documents regarding the amendments.

Case 2:18-cv-00664-DJH Document 81 Filed 06/25/19 Page 2 of 4
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MONTOYA, LUCERO 

&

PASTOR

A PROFESSIONAL ASSOCIATION OF LAWYERS

3200 NORTH CENTRAL AVENUE, SUITE 2550

PHOENIX, ARIZONA 85012

Defendant’s Position: Plaintiffs seek a 30(b)(6) deposition on the City’s “January 14, 

2019 amendments to Administrative Regulation 2.35.” The City’s Equal Opportunity 

Department (“EOD”) investigated Bruner’s EOD complaints under AR 2.35 (which at the 

time indicated complaints must be filed within 180 days) and issued a report on July 19, 

2017. In January 2019–1.5 years after EOD concluded Bruner’s investigation–the City 

amended AR 2.35 in multiple ways, one of which was to note complaints must be filed 

within 300 days. The City raising the Faragher/Ellerth affirmative defense (where an 

employer “exercised reasonable care to prevent and correct promptly alleged harassing 

conduct”) has no bearing on this discovery issue (the City took actions re: the alleged 

harassment regardless of AR 2.35) and doesn’t entitle Plaintiffs to the depo. Faragher v. 

Boca Raton, 524 U.S. 775 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742 (1998).

Subsequent amendments to AR 2.35 are not relevant to EOD’s investigation into Bruner’s 

complaints or the City’s measures to prevent alleged harassing conduct regarding Bruner. 

A time consuming, expensive depo on this topic is also disproportionate to the needs of this 

case. Rule 26(b)(1). Plaintiffs seek this depo to embarrass and harass the City about 

changes to policy and argue about the merit of the policy, which is irrelevant. In meet and 

confer, Plaintiffs’ counsel said he believed AR 2.35 was changed because the City was 

embarrassed after an ABC 15 news story (noting below the 180-day deadline “was 

ridiculed in the media”). The City has not admitted that any one of the multiple 

amendments to AR 2.35 in fact constituted a subsequent remedial measure - and this is an 

evidentiary issue, anyway. On May 23, the City told Plaintiffs the revisions to AR 2.35 

were in the works before Bruner complained to EOD; if they issued an interrogatory on that 

point, the City would respond accordingly. Plaintiffs did not issue written discovery on 

this.2 The deposition also seeks privileged information, as City lawyers were involved in 

amendments to AR 2.35.3

2The City first asked to reschedule the depo, but said before doing that, the parties should 

discuss if there was information that could be provided to avoid the expense of a 

deposition. 

3Plaintiffs now seek “all relevant documents regarding the amendments,” but never issued 

an RFP on that. These documents are privileged and not discoverable (see above).

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MONTOYA, LUCERO 

&

PASTOR

A PROFESSIONAL ASSOCIATION OF LAWYERS

3200 NORTH CENTRAL AVENUE, SUITE 2550

PHOENIX, ARIZONA 85012

Respectfully submitted this 25th day of June 2019. 

MONTOYA, LUCERO & PASTOR, P.A.

________________________________ 

Stephen Montoya

3200 North Central Avenue, Suite 2550

Phoenix, Arizona 85012

Attorney for Plaintiffs

I hereby certify that on June 25, 2019, I electronically transmitted the foregoing document 

to the Clerk of Court using the CM/ECF System for filing and transmittal of a Notice of 

Electronic Filing to the following registrant: 

C. Christine Burns

Kathryn Hackett King

BurnsBarton LLP

2201 East Camelback Road, Suite 360

Phoenix, Arizona 85016

Attorneys for Defendant

____________________________

Case 2:18-cv-00664-DJH Document 81 Filed 06/25/19 Page 4 of 4