PHOENIX — The state Senate wants a do-over of at least part of the trial where a jury concluded a staffer was the victim of racial and sexual discrimination.
In new legal filings, Michael Moberly, the attorney hired by the Senate, said Talonya Adams testified during the trial that the first time she learned she was being paid less than colleagues is when the Arizona Capitol Times published the salaries of staffers.
“There was no evidence presented at trial that Ms. Adams ever had a verbal conversation of any kind with anyone at the Senate about her salary or those of her colleagues between the time this report was published and the termination of her employment,” he told U.S. District Court Judge Douglas Rayes. And Moberly said there’s nothing in emails about the issue.
What all that means, he said, is jurors had no basis to conclude Adams was engaged in “statutorily protected activity” — specifically complaining about discrimination — or that she was terminated for that reason.
Adams, for her part, testified at trial that she repeatedly had complained about her salary and working conditions with supervisors before she was fired in 2015.
If Rayes agrees with Moberly, that would result in a new trial, at least on the retaliation claim.
It would not disturb the separate conclusion by jurors that she was the victim of discrimination, not just in pay but also in how leave time was granted. But absent a finding she was the victim of retaliation, a new jury could conclude she is entitled to less than the $1 million she originally was awarded in the first trial.
Rayes already has trimmed that to $300,000 — the maximum he said she is entitled to under federal anti-discrimination laws — with another $50,000 for things like lost wages.
The filing comes as the judge heard complaints on Friday by Adams that the Senate had not met the deadline he imposed of Oct. 31 to rehire her.
Adams acknowledged in court that she was offered a salary of $113,300, which would put her on par with other senior policy advisers. It also compares with the $60,000 she was being paid when she filed suit claiming she was paid less than others because of her race and her sex.
But she told the judge there are sticking points, including whether she would get back the four years and nine months of seniority she lost as well as the retirement benefits that would have accrued in that time.
The judge was less sympathetic to her complaint that if she is hired back she would be reporting to Jeffrey Winkler, the chief of staff for Senate Democrats — and one of the people Adams said was guilty of discriminating against her.
“The problem is, we’re not Microsoft,” Moberly said, saying there simply was no one else to whom she could report. Rayes said that left him no options.
“I’m not going to change the supervisor for you,” he told Adams. “I can’t do that.”
It was Rayes who presided over the trial and, after the jury found for Adams, ordered the Senate to reinstate her by Oct. 31 “pursuant to terms negotiated by the parties.” When that didn’t happen, Adams asked the judge to intercede. At Friday’s hearing, Rayes appeared annoyed at times that he was being forced to tell the two sides how to negotiate those terms. “I’m not the HR department of the Senate,” he told Adams.
“I’m not going to set the terms and conditions of employment,” the judge continued. “That’s up to the employer.”
Aside from retirement benefits, Adams is asking for time to close down her personal law practice. Yet she wants her employment to be reinstated even if she is still doing outside legal work.
“I need health care,” she told Rayes, specifically citing the need for dental work. The judge, however, said the state can’t provide benefits like that until she actually returns to her job. And he questioned her list of demands.
“They’re not required to give you everything you ask for,” Rayes said.
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