Mark

Mausert
Nevada Bar #2398
930 Evans Avenue
Reno, Nevada 89512
(775) 786 5477
(775) 786 9658 fax




January 11, 2017


Dear Reno:

The Reno City Council and the Reno City Attorney decided to release heavily
redacted reports from David Wall, Esq. and Alice Campos Mercado, Esq. regarding their
investigation into claims of misconduct by the former City Manager. Pursuant to the right of
fair reply, recognized by the Nevada Rules of Professional Conduct, my clients are replying
to the reports.

This response will cover some of the inadequacies of each report, detail the hostile
treatment of my clients by the City and address the outlandish claim of a conspiracy. The
effect of this material in whole will show the concerted cover-up attempts by the City
Attorney, failure of the City Council to manage their employees and detail a tremendous
waste of tax-payer money.

This response is not a comprehensive rebuttal to the two reports. I have not covered
all points for the sake of brevity. Further, in keeping with the desire to protect the identities
of those involved, I have avoided identifying most individuals.


Issues with the first investigation process and report

The first investigation, conducted by Ms. Mercado was artificially, and improperly
restricted. During her interviews with my clients, my clients repeatedly informed Ms.
Mercado of the nature of their most important allegations, i.e., retaliatory hostility
emanating from sexual favoritism and corruption as evidenced by the MyRPD issues and
other examples. Ms. Mercado repeatedly put her head in the proverbial sand and told my
clients such allegations were "beyond the scope" of her investigation she was only scoped
to look into direct sexual harassment. The audio of these interviews, recorded by my clients,
and the limited scope of the first investigation report definitively establish this fact.

Should the allegations of daily ostracism, hostility and corruption have been
investigated thoroughly? You bet. Two of my clients reported to Human Resources on June
29th and July 1st that they worked side-by-side with employees who would not speak with
them for months as the result of hostility which they allege can be traced directly to
Clingers sexual favoritism. The establishment of the very narrow "scope" violated binding

Ninth Circuit law and invalidates the investigation and report.1 Ms. Mercado knows better
and the City tacitly acknowledged this when outside counsel reviewed the first investigation
and concluded a do-over was necessary.

The narrow scope comes with consequences for the City. Consequence #1: Enough
time elapsed so the second investigation may be fairly characterized as untimely and the
City will lose the ability to invoke the critical Ellerth/Faragher affirmative defense.
Consequence #2: $10,000 of taxpayers monies were wasted on the first investigation.
Consequence #3: Bad faith becomes painfully apparent. Consequence #4: The contention
Ms. Mercado acted in an independent manner is exposed as a fallacy.

Given these consequences, why was the scope of the first investigation kept
artificially narrow after multiple claims had been made to Human Resources? The
inferences are not favorable: either the decision was made to limit discovery to ensure
Clinger would be exonerated (AKA, a cover-up) or the decision-maker had a very limited
understanding of employment law.

Who made the decision to artificially limit the scope of the first investigation? All
signs point to the City Attorney, Karl Hall. It is well documentedby my clients and by
Judge Wall in the second investigationthat Hall took control the day the first claim was
filed, with little regard for City policy, and began to exert his influence.

1 There is a overtly considerable body of case law, which clearly establishes an investigation should not be

artificially limited to sexual conduct. In Morgan v. National Railroad Passenger Corp., 232 F.3d 1008, 1017 (9th
Cir. 2000), the Court wrote:

"A hostile work environment occurs when there is a pattern of ongoing and persistent harassment severe
enough to alter the conditions of employment." Draper, 147 F.3d at 1108 (citing Meritor Sav. Bank v. Vinson,
477 U.S. 57, 66-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). As this court noted in Fielder, "[m]ost instances of
hostile environments are not capable of facile identification. [I]nstead, the day-to- day harassment
[is] particularly significant, both as a legal and a practical matter, in its cumulative effect." Fielder, 218
F.3d at 985 (quoting Draper, 147 F.3d at 1108).

Emphasis added.

The Supreme Court has held that "harassing conduct need not be motivated by sexual desire to support an
inference of discrimination on the basis of sex." Id.

Equal Employment Opportunity Commission v. National Education Association, 442 F.3d 840 (9th Cir. 2005).

In U.S. Equal Employment Opportunity Commission v. Scolari Warehouse Markets, Inc., 2007 U.S. Dist. LEXIS
20719 (2007); 488 F.Supp. 1117 (D.Nev. 2007), the Court quoted Draper for the proposition, "[d]iscriminatory
behavior comes in all shapes and sizes, and what may be an innocuous occurrence in some circumstances may,
in the context of a pattern of discriminatory harassment, take on an altogether different character, causing a
worker to feel demeaned, humiliated, or intimidated on account of her gender."

We have held that this [Title VII] not only covers "terms" and "conditions" in the narrow contractual sense,
but "evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women
in employment." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed. 49 (1986)
(citations and internal quotation marks omitted). "When the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victims
employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (citations and internal quotation marks omitted).

Oncale v. Sundowner Offshore Services, Inc., 532 U.S. 75, 118 S.Ci. 998, 140 L.Ed.2d 201 (1998).

City Policy 607 Prohibited Discrimination, Harassment and Retaliation Policy

governs sexual harassment and retaliation. The policy states clear roles and responsibilities
that were violated when Hall supplanted Kelly Leerman, Director of HR, in handling the
complaint process. 2 The City Attorney does not have expertise in employment law and it is
clear from Judge Walls interviews with Ms. Leerman she disagreed with Halls handling of
the process from the start.3 What authority allowed Hall to unilaterally decide to break with
policy and put himself in charge of the investigation? Shouldnt the rationale for this
decision have been documented and approved by Council as a deviation of policy and
process?


Taking control of the complaint process allowed Hall to give preferential treatment
to Clinger in a number of ways.

The very day the first complaint was filed, Hall breached confidentially and told
Clinger the identity of the complainant. In his interview with Judge Wall, Hall claims this
was in order to prevent Clinger from inadvertently retaliating against the claimant. In
reality, the breach allowed Clinger to alert [redacted] of the complaint and complainant.
Clinger admitted to this breach of confidentiality in his interview with Judge Wall. We
believe the breach allowed [redacted] to retract her own claims of sexual harassment by
Clinger that she had shared with Councilmember Duerr proceeding Clingers June 21st
review. We believe [redacted] also fostered retaliatory hostility against the claimant by
spreading rumors to her staff.

City policy was not followed when the Council was deliberately kept in ignorance
about the investigation. When questioned by one of the claimants on July 18th, Hall stated, I
didnt think I had an obligation to tell them,4 showing a complete lack of understanding of
Policy 607.5 Council was only officially informed on July 20th, after the first investigation
was over and after my clients had endured retaliatory hostility for weeks. As the
supervisors of the accused, Council is the only body able to discipline the City Manager in
the event of retaliation and make the call to put him on leave during an investigation.

2 Policy 607 designates the Human Resources Director as the main point-person for handling claims. For

example, Section VII B. 8. states the Human Resources Director shall contact the person accused to notify them
of the complaint.
3 Leerman was critical of Hall for telling Clinger the nature of [deleted] complaint and giving Clinger her
identity. She had previously discussed with Hall that they ought not to do that, but Hall did it anyway. Wall
Report, p.45; and, [deleted] is now on the outs with the City Attorneys office after criticizing Karl Hall for
disclosing [deleted] identity to Clinger. Wall Report, p. 53.

4 As memorialized in an audio recording by the claimant.
5 Policy 607 is clear:
Section VI. C. states that supervisors must monitor the day-to-day conduct of employees to ensure no
violations of policy occur
Section VII. B. Step 4. states that once a complaint is made, department heads will receive copies of any
complaints filed directly with HR
Section VII. B. Step 7. states that once the complaint is determined to be appropriately addressed under
the policy, the HR Director, at the direction of the City Attorneys Office, shall immediately notify the
department head of the complaint
Section VII. B. Step 13. states that in the event the complaint involves the department head, the City
Manager or his or her designee shall be substituted for department head beginning at Step 2
While the policy does not specify protocols in the event the City Manager is being the accused, it is clear that the
intent of the policy is for the supervisor to be notified, in this case, the Council and Mayor.

Even when the Council was told about the allegations, the City Attorney did not
inform them of the full extent of the problem. They still are mostly unaware of the extent of
the allegations (a minority have taken the time to read my correspondence to the City
Attorney that presents the full story) and have little awareness of the retaliation
experienced by my clients. Look at the example of Councilmember McKenzie learning new
information from Councilmember Duerr:

Additionally, McKenzie related a conversation he had with Duerr during the [first]
investigation, during which she told him that she had spoken with Clinger and that
he vehemently threatened revenge on the claimants. For McKenzie, this was the
final straw that led him to believe Clinger could not continue as City Manager.

November 21, 2016 Confidential Investigation Report (hereinafter "Wall Report") authored
by Judge David Wall, p.34.

What if all Council members had been informed about Clingers conduct? Would
Councilmember Jardon still demean my clients to Judge Wall by characterizing their claims
as high school type complaints? It is the City Councils responsibility to take these matters
seriously and respond swiftly and appropriately. The members are sworn to uphold the law
but are not able to hold employees accountable if they have not been properly informed.

What is Clingers attitude toward retaliation? Is he capable of understanding
running about like an adolescent, and referring to an [redacted] as his "unicorn" he might be
responsible for generating a sexual harassment complaint? One possible answer is found at
page 26 of the Wall Report.

On July 21, 2016, Duerr attended an already scheduled lunch meeting with Clinger.
By now, Hall had briefed her on the status of the investigation. Duerr told Clinger
that she was aware of the claims and hope the investigation would go well so that
everyone could move forward. Duerr said at that point Clinger "goes ballistic,"
proclaiming his innocence in an angry outburst that lasted nearly an hour. Duerr
described him as "furious". No complainants names were mentioned, but Clinger
threatened vengeance against them, saying things like, "theyre evil," and
"theyll pay." He told Duerr that its a conspiracy against him, which he declared was
a felony, and he vowed to hold them accountable. Duerr said that Clinger went on to
say things like, "Paybacks a bitch," and [deleted]. Duerr explained that she was
"freaking out" at this point and tried to calm Clinger down. She told him he shouldnt
be at work and should take a few days off. Clinger agreed to do that.

But the following day, July 22, 2016, Duerr saw Clinger at a City firehouse dedication
event. She also saw [deleted] as she spoke with Councilwoman Neoma Jardon and
Mayor Schieve. Duerr told [deleted] she should leave because Clinger was there.
That afternoon, Duerr said she had a conversation with Karl Hall and relayed to him
Clingers lunch conversation with her, including the threats about taking revenge.
Duerrs message to Hall was that Clinger ought not to be in the office. Duerr said
Hall told her that Clinger had made the same type of comments to him.

Emphasis added.

Councilwoman Duerr and Hall are joined in their allegations regarding Clinger
openly expressing his intent to exact vengeance.

Like Naomi Duerr, Mayor Schieve said that Clinger made derogatory statements
about the complainants to her and threatened to take revenge against them.
Those statements greatly concerned the Mayor.

Wall Report, p.42 (emphasis added); also see, p. 53 (Clinger threatened to fire the women).

Clinger used his bully pulpit to call the complainants "liars". What sort of reaction
does that invite from employees loyal to Clinger? The same sort which the complainants
actually allege they experienced for many months. If these allegations are true, Clingers
departure was mandated by Policy 607 and Federal law. The City was possessed of an
obligation to prevent future harassment. Retaliatory hostility is a well-recognized form of
sexual harassment. See below, i.e., Draper v. Coeur Rochester, 147 F.3d 1104 (9th Cir. 1998).
Clinger apparently expressed, at length, a crystalline intent to exact vengeance on women
who complained, in good faith, of his activities. Clingers unfitness, if not established by
evidence regarding the original allegations, is established by his reaction to the complaints.
Clingers unalloyed rage may be seen as probative of the allegations. One interpretation is
Clinger was very angry because he is innocent. That interpretation is rendered less credible
by Clingers participation in the Hot Crazy Matrix nonsense. Another, more cogent
interpretation is: Clinger was, and is, in denial. Even when confronted directly with the
consequences of creating a sexualized work environment, Clinger could not see his
culpability. In his mind, he is innocent. Hence, the rage reaction.

City policy was again breached when Hall gave Ms. Mercados report to Clinger. This
allowed Clinger to springboard off the false conclusion of innocence and emboldened him
to retaliate against my clients by branding them liars in the press and to Councilmembers.
The City Attorney, despite repeated requests, refused to release the first report to me and
still has refused to provide an unredacted copy the report.

How are we confident Hall violated City policy and process in all these ways to
benefit Clinger? Hall himself made it clear that he did not take the claims seriously. Judge
Walls interview of City Councilmember Paul McKenzie reads in part:

City Attorney Karl Hall told him about the complaints after they were filed. Hall also
mentioned at some point before the completion of the [first] investigation that
he thought it was "likely a witch hunt by disgruntled employees." McKenzie
found this comment by Hall to be inappropriate.

Wall Report, p.33 (emphasis added).

Judge Walls interview of Councilmember Duerr reads in part:

[Duerr] believes Hall didnt really take the allegations seriously, saying things like,
its just a leg being touched.

Wall Report, p.26 (emphasis added).

These are grossly inappropriate statements by Hall.6 Hall should have recused
himself, early. It is probative of the proposition Halls breach of confidentiality to Clinger
was not the product of inadvertence. He thereby communicated a willingness to trivialize
sexual harassment, and exacerbated extant hostility. And, of course, this sort of remark
illustrates the gender animus underlying the refusal to properly investigate7 and sets the
stage for Clingers conspiracy claims. I intend to depose Councilmembers McKenzie and
Duerr and explore at length the question whether the actions and statements of Clinger
were exacerbated by the City Attorney.

The City Attorney has repeatedly resorted to attempting to try this case in the press,
and while doing so has manifested ignorance of the law. Hall stated to the media the
purpose of an investigation is to protect the City. False. The primary purpose of a sexual
harassment investigation is to gather information, so as to allow the employer to do the
right thing, i.e., if sexual harassment has occurred the employer is to fashion remedial action
sufficient to redress past harassment and deter future harassment. If the employer
performs a prompt and thorough investigation, and then properly addresses past
harassment and deters future harassment, in most situations the employer is entitled to
what is called an affirmative defense per two 1998 United States Supreme Court cases, i.e.,
Ellerth & Faragher. It was part and parcel of the City Attorneys duty to ensure a prompt and
thorough investigation occurred, and if appropriate, adequate measures were to be taken to
clean up any problem. The City Attorney dropped the ball on all counts.

The first investigation was botched (or more accurately, probably sabotaged per the
imposition of artificial parameters by Hall), and $10,000 of the Citys monies were wasted.
Worse, enough time elapsed so as to impair the ability of the City to successfully invoke the
Ellerth/Faragher affirmative defense, increasing the Citys liability.

Once hired, outside counsel Attorney Gregg Kamer reviewed the first investigation
report, Ms. Mercados notes, and the letters sent by myself and Bill Peterson on behalf of the
claimants. Mr. Kamer apparently told Mayor Schieve (as the Mayor related to two of my
clients via telephone) the first investigation was badly done and apparently advised her that
in spite of the first investigations attempt to cover up the truth, it nonetheless showed my
clients claims were likely valid. We are further informed Mr. Kamer was clear Clinger
needed to go and initiated the second, independent investigation to remedy the first.


Issues with the Second Investigation and Report


Unfortunately the second investigation suffered from many of the same defects: it
was not independent from the City Attorney, had a deliberately narrow scope and

6 A number of cases repudiate this sort of knee-jerk reaction. In Ellison v. Brady, 924 F.2d 872, 879-80 (9th Cir.

1991), the Court observed, "[b]y acknowledging and not trivializing the effects of sexual harassment on
reasonable women, courts can work towards ensuring the neither men nor women will have to "run a gauntlet
of sexual abuse in return for the privilege of being allowed to work and make a living." Citing, Henson v. Dundee,
682 F.2d 897, 902 (11th Cir. 1982).
7 From Dominguez-Curry v. Nevada Transportation Dept., 424 F.3d 1027,1039-40 (9th Cir. 2005):
Where, as here, the person who exhibited discriminatory animus influenced or participated in the decision
making process, a reasonable fact finder could conclude that the animus affect the employment decision.
Mondero v. Salt River Project, 400 F.3d 1207, 1213 (9th Cir. 2005) . . . .

continued to show preferential treatment and bias in Clingers favor. In addition, or perhaps
because it was not independent, it failed to investigate Halls bias.


The second investigation was purported to be independent and neutral. The
discussion by the Council at the August 4th Special Meeting to approve the contract with Mr.
Kamer confirms this (emphasis added):

Councilmember Bobzien: I am very comfortable with delegating this to you.
Understanding that, yes, there will be questions that come about as to the scope and
the performance of whatever the engagement is and those questions will be
answered in due time. But the idea that we would create a calendared ladder that
pushes out action that is needed on this immediately makes me very uncomfortable,
so with that, I would move to authorize the appointment of special counsel to
manage an investigation of the complaints alleged misconduct of City Manager
Andrew Clinger and to delegate to Mayor Hillary Schieve to select contract with
and direct the special counsel in an amount not to exceed $50k.

Mayor Schieve: To be completely transparent and to be able to make sure that the
public can follow the process as long as we are following the process and make sure
we are doing this absolutely correctly, so I'd agree with you.

Councilmember Bobzien: Just some clarifying comments on my motion, I
understand the scope to be very broad, as much as it needs to be and as thorough as
it needs to be. I also would hope and recognize due to the special circumstances
here given the parties reporting lines and everything else, Mayor, you should
select someone on staff to assist you with the contract and execution in terms of
invoices, billables, etc. and that you keep us apprised because we are delegating
this authority to you. I'm very confident that you will keep the entire Council
apprised as well as the public.

The City took the steps to create the appearance of independence but in reality Hall
continued to be deeply involved in the second investigation, undoubtedly influencing the
outcome.

Hall was included on all communications and was clearly part of the decision to not
interview my clients. Halls improper involvement in the second investigation was even
discussed publicly at the November 16th Council meeting where the Mayor berated Hall for
not managing the costs. In response, Councilmember McKenzie rightly pointed out Hall
should not be involved at all given that the whole point of hiring expensive outside counsel
was to get independent advice (emphasis added):

Councilmember McKenzie: Mr. Hall, I appreciate the situation you are in because we
are the ones who decided to hire an outside counsel and now we are looking at
you and asking why it cost us so much. That procedure is something that we
should be developing as counsel because when we go to outside counsel it's
usually because we have something that we disagree with you about and we put
you in a really strange position when disagree with you and we have hired someone
else to give us another opinion, we ask you to be the mediator, so I think that is
something that if we ever get those Council policies together that we've been
working on since I've been on this City Council that we do something. It's qualified

in code how we seek outside counsel but this Council has to be the one to establish
that policy, we can't expect Karl to establish that process for us.

This discussion was limited to matters of billing and raises the question: is the Council
aware of Halls critical involvement in the second investigation otherwise, especially
regarding the decision to not interview my clients?

Judge Wall acknowledged the difficulties created by the failure to interview the
women. That the refusal to interview the complainants did not arise with Judge Wall is
obvious. He wrote:

Notably absent from the foregoing list are the three complainants, . . . I have not
interjected myself into those negotiations [the negotiations between myself and the
City Attorneys Office re the interviews of the complainants] and take no position as
to the validity of any position taken therein.
. . . .
The inability to speak with [the complainants] made the completion of the instant
investigation far more challenging. Access to the complainants would have allowed
me to ask cogent questions regarding their claims, to further attempt to seek
corroboration thereof, to request access to certain documents and personal
information they possess and to take normal investigatory steps to determine facts
and assess credibility. Credibility assessment is normally conducted in one-on-one
interviews or otherwise determined in the existence or non-existence of
corroborative evidence. Additionally, in interviews the claimants would have had
the opportunity to support their versions of events. It is therefore a fair criticism of
this Report to allege that it was completed without having spoken with the very
complainants who necessitated it in the first place.

Wall Report p.2-3 (emphasis added).

The offer to allow the complainants to be interviewed remained open, but the
City never accepted that offer.8 At any point during the expenditure of this massive

8 What are the terms I put on interviews of my clients? My clients have already been interviewed, absent

restrictions, by Ms. Mercado. Despite the issues with the first interviews, I offered to allow my clients to be
interviewed with two conditions: I offered to forego from attacking the thoroughness of the interview, but
wanted a stipulation, to the effect David Wall, Esq. would not testify in event of litigation. That is, I did not want
to be turned into a witness if Mr. Wall decided to testify one of my clients said something which perhaps she did
not say. The interviews were to be lengthy. Memories differ as to what may have been said during a five hour
interview. Nor did I want the interviews recorded as that would amount to two depositions in event of litigation
an unfair advantage for the City. The legitimate purpose of the interviews was to investigate allegations of
sexual harassment not to obtain tactical advantage in future litigation via having a retired Judge
available to participate in an evidentiary contest over what was said or extra time deposing. In other
words, I offered to cooperate, and to provide the City with a second chance to do the investigation with the
prohibition the interviews were not going to be morphed into something that could be used against my clients.

The City Attorneys attempt to characterize my clients position as sounding in dishonesty is itself less
than candid. The interviews would have been lengthy. Many incidents would have been discussed, involving
many actors. Mr. Hall is a very experienced attorney. He knows, just as I do, and just as Mr. Wall does if a
witness is interviewed for five hours about a complex fact pattern, and then interviewed at length a year later,
and then the same interview is done two years hence, three slightly different versions will exist. Every
experienced lawyer knows this for a fact because we have seen the phenomenon again and again and again.
Memory is a bit malleable. This phenomenon has nothing to do with honesty. This analysis was spelled out to

amount of money, the City could have fixed the problem. I find it highly unlikely Mr.
Kamer, highly trained in employment law, would allow the City to take such an indefensible
position.9 The City Attorney apparently reserved the right to arrogate control of at least this
crucial aspect of the investigation. Why? The only apparent reason is the City Attorney was
intent on using the investigation as an offensive weapon against victims of sexual
harassment, instead of as a mechanism to fix the problem.


Why were Halls actions not investigated by Judge Wall? We sent a letter to Judge
Wall on November 1st detailing issues with Halls conduct. Judge Wall notes Halls
inappropriateness several times in his Report, but declines to investigate further or let it
affect his credibility assessment of Hall.

Judge Wall opened his report with his given scope: Neutral fact finding as a thirdparty investigator concerning allegations of alleged misconduct by the City Manager and
related allegations of retaliatory actions, inclusive of any allegations not addressed in the
initial investigators report and those warranting further factual inquiry based on exercise
of independent professional judgment. Wall continues to say he was given the latitude to
go where the facts lead you.10 Yet Judge Wall engaged in limited fact-finding efforts
related to my clients claims. In contrast, he went the extra mile to investigate, and even
speculate on, Clingers self-serving contention a conspiracy was at work.

Absent interviews with my clients, Judge Wall was forced to use the Mercado
interviews as the basis for the second investigation. Judge Wall cites the fact he interviewed
some of the persons whom Ms. Mercado interviewed and "asked interviewees whether they
had in fact told Ms. Mercado certain things that were contained in her Report."11 The
problem is: Ms. Mercado deliberately avoided the most important aspects of this case. She
did so with the complainants, as memorialized by the tapes of those interviews. If she did so
with the complainants, it is a fair bet she also did so with the witnesses. In other words, by
using the first investigation as the basis for second investigation, Judge Wall went down the
same rabbit hole as Ms. Mercado, i.e., the very one which necessitated his investigation.

On November 7, 2016, two weeks before Judge Wall completed his Report, I provided
him with a copy of a letter I wrote that day to Hall. I wrote because I came to believe the City
did not want to thoroughly investigate my clients allegations. That this is apparently true is
indicated by the November 21, 2016 Report. That is, the Wall Report does not address most
of the concerns articulated in the November 7th letter, or my six previous letters.12 Among
those concerns was the manner in which [redacted] came to be promoted, notwithstanding
glaring problems such as the five million dollars expended on the ADP payroll system (it
turned into a boondoggle and was abandoned when the City recently returned to the

Mr. Hall in a November 1, 2016, letter, as well as earlier letters (add dates). He failed to rebut the analysis. Mr.
Hall has confined himself to the contention the womens position is unreasonable. Wrong. What is unreasonable
is Mr. Halls unseemly insistence on using a procedure intended to protect victims of sexual harassment to, in his
own words, defend the City.
9 "The failure to interview witnesses is evidence of inadequate remedial action. Fuller
v. City of Oakland, 47 F.3d 1522, 1529 (9th Cir. 1995)." Mockler v. Multnomah County, 140 F.3d 808, 813 (9th Cir.
1998).
10 Wall Report, p.1
11 Wall Report, p.3
12 On September 15th, September 20th, September 28th, October 11th, October 17th, November 1st, and November
7th I sent letters directly to Judge Wall, or CCing Judge Wall, that each detail claims that were not ultimately
adequately addressed in the second investigation.

original system). [redacted] was instrumental in hiring a number of persons, including

persons who did not meet the minimum qualifications for their positions, who subsequently
aligned themselves with her and Clinger, i.e., they allegedly ostracized my clients. Most
importantly, Clingers alliance with a prominent lobbyist was raised. That relationship is
directly relevant to the circumstances underlying Clingers hiring, and the manner in which
his indiscretions were ignored. Prior to writing, I called Judge Wall and verbally raised these
concerns. Judge Wall told me those concerns were beyond the scope of his investigation.
That is, Judge Wall repeated just about the same refrain Ms. Mercado articulated when
interviewing the complainants. The ostracism and hostility, which are the heart of my
clients complaints, are somehow, in some way no one has explained, "beyond the scope."

My clients made claims in good faith.13 If Judge Wall had not been forestalled from
interviewing my clients he would have learned there was no actionable conspiracy without
having to spend a good part of his investigation looking into the claimants motives instead
of their claims. This red herring has the effect of distracting from the merits of my clients
claims and flirts with morphing an investigation into sexual harassment into a form of
retaliatory hostility.14

The second report by Judge Wall concluded my clients primary claims were
meritorious but there was not enough evidence to establish the sexual nature of Clingers
relationship with [redacted] so as to find a sexual harassment violation. Consequently,
many newspaper headlines have reported the two investigation reports clear the former
City Manager of charges. Lets be very clear: insufficient evidence is not the same as being
cleared of sexual harassment charges.

Walls Report incriminates Clinger.

My clients believe Clinger disseminated the Hot Crazy Matrix video. Clinger
apparently denies having done so. The point is fairly minor. Clinger took no remedial action,
notwithstanding his ability and obligation to do so, in the face of the dissemination of the
Hot Crazy Matrix video. This video is sexist. It is offensive to women. Its intended humor
does nothing to mitigate its inherently misogynistic character. Instead of taking remedial
action, Clinger is accused of routinely referring to [redacted] as his "unicorn." A unicorn, per
the video, is a very attractive woman, who is only a four on a one-to-ten crazy scale.
Regardless of who disseminated the video, Clinger appears to have run with it. If he did not
disseminate it, but he routinely referenced it with approval by designating [redacted] as his
unicorn, he may as well have. The effect was the same. Repeated reference to [redacted] as
Clingers unicorn would have served to sexualize the workplace and send an improper

13 The womens complaints were good faith, protected activity: Hernandez v. Spacelabs Medical, Inc., 343 F.3d

1107 (9th Cir. 2003).

Title VII protects the right to be free from certain types of forbidden discrimination, as well as the right to
speak out against such discrimination. It also protects against retaliation for the exercise of the right to
speak out against discrimination.
14 In Sarro v. City of Sacramento, 78 F.Supp.2d 1057 (E.D. Ca. 1999).
Viewing the evidence in the light most favorable to Sarro, a reasonable factfinder could conclude that
the manner in which the investigation was conducted would deter reporting of harassment, and thus,
was not reasonably calculated to deter future harassment. Much of the investigation into Sarros
background focused on the most personal and private aspects of her life, including her former
marriage, her current relationship and her sexual history. Sarro was clearly aware of and offended by
the extent of the investigation.
78 F.Supp.2d at 1064

10

message, to wit, women are valued on their sexual attractiveness (and by implication on
their willingness to parlay that attractiveness), as opposed to competency.

Were the complainants perceptions out-of-line? They were in sync with those of the
Mayor.

Regarding the allegations against Clinger, Mayor Schieve said she believes that there
was hostility in the work environment, at least in part due to the actions of Clinger.
She believes Clinger "played one woman off on another" and points to [deleted] as
an example.

Wall Report, p.42.

In other words, the Mayors perceptions mirror the complainants allegations. To
wit, the complainants accuse Clinger of creating a sexualized work environment, and
shifting job duties, based on sexual favoritism, and then dissembling about how those duties
came to be shifted. The result, they allege, was systemic ostracism and hostility. So, when
Judge Wall received notice of the complainants allegations from me, and was also told how
Ms. Mercado ignored those allegations, he knew the complainants allegations were
corroborated by a very credible source the Mayor.

If Clinger is responsible for this mess by playing one woman off against another,
which in turn resulted in a hostile work environment, as the complainants allege, was an
actionable work environment created per Title VII? Per Draper v. Coeur Rochester,
Inc., 147 F.3d 1104 (9th Cir. 1998), the answer is in the affirmative.

Discriminatory behavior comes in all shapes and sizes, and what might be an
innocuous occurrence in some circumstances may, in the context of a pattern of
discriminatory harassment, take on an altogether different character, causing a
worker to feel demeaned, humiliated or intimidated on account of her gender. See
Meritor Savings, 477 U.S. at 65, 106 S.Ct. 2399 (noting that employees have the right
to work in an environment free from discriminatory intimidation, ridicule, and
insult").
. . . .
Draper has described an occurrence that can be understood only in light of the
circumstances that preceded it and the nature of the relationship that existed
between Draper and her supervisor.

147 F.3d 1109.

The act at issue in the Draper was derisive laughter. There is nothing inherently
sexual regarding an act of derisive laughter. However, the laughter was elicited by Ms.
Drapers complaint of ongoing sexual harassment. So too, if Clinger assigned duties to my
clients, because for instance, he was attempting to protect his "unicorn", i.e., his sexual
favorite, and then dissembled to the unicorn as to how the duties came to be reassigned
and the result was protracted, orchestrated hostility the result is a work environment,

11

actionable per Title VII. Both Reports skirt this analysis. Draper is not an obscure case.15
More importantly, the analysis stated therein sounds in common sense. Even more
importantly, the women repeatedly stated this analysis to Ms. Mercado, who assiduously
ignored them. The same was stated in the seven letters which Judge Wall received a copy of,
as noted earlier. Why have the ostracism and hostility, which are central to this case,
received only passing notice in Judge Walls lengthy report? If that Report devoted as much
attention to the manner in which the complainants were isolated and derided, as it does to
the chimerical conspiracy theory, it would contain at least one meaningful analysis.

Furthermore, the observations of the Mayor of Clinger playing one woman off
another neatly establish the good faith character of the complaints, and concomitantly, the
grossly inappropriate character of Clingers retaliatory rants.

Then too, there is the matter of Clingers chicanery in having employees download
apps which would destroy text messages among City employees. One of the complainants
alleges Clinger did so to facilitate sexual messages. Clinger denies and apparently claims he
did so to avoid compliance with public records request. So, the charitable interpretation is
the City Manager went out of his way to destroy messages so the public would not know
what he was doing in his capacity as City Manager. See, e.g., Wall Report, p.87. I think this is
a form of dishonesty and an abuse of power, but maybe Mr. Clinger has a more cogent
explanation. Of course, this sort of move is entirely consistent with the proposition Clinger
was sending sexual messages. He is not necessarily entitled to the charitable interpretation.

Nearly every witness interviewed on the subject agreed that Clingers use of the
Slack and Telegram texting platforms was entirely inappropriate for City
government. Clinger said he now appreciates that the use of these applications was
inconsistent with transparency in government.

Wall Report, p.94.

When my clients complain of the sexualized work environment Clinger created
through such venues as "The Hot Crazy Matrix", they are outright liars and should be
publicly vilified. When Clinger hunts around on the internet and finds mechanisms whereby
he may deliberately and systematically cover his tracks, while working as the City Manager,
he now "appreciates that the use of these applications was inconsistent with transparency
in government." Clinger sure is a kind guy to himself.

The Wall Report out-of-hand dismisses the report of Clinger engaging in a liaison on
the fifteenth floor with a female employee. The Report is rife with speculation as to a
conspiracy, but the firsthand ear witness report of huffing and puffing, etc. is subject to
summary dismissal.

Judge Wall failed to consider Clingers alleged history of sexual harassment and
workplace affairs; one leading to a settlement in 2008.16 This history was brought to the
attention of Council during the August 4th Council Meeting by Kim Wallin17 and should have

15 Draper is binding in Nevada and has been around since June, 1998. See, e.g., Zuniga v. United Can Co., 812 F.2d

443, 450 (9th Cir. 1987) (absent a countervailing federal statute or a United States Supreme Court Opinion, the
District Courts, located in the Ninth Circuit, are bound to follow the law, as interpreted by the Ninth Circuit).
16 https://www.newsreview.com/reno/harassment-charged/content?oid=21621097
17 Testimony occurs 9:42 into recording of August 4th Council Meeting: http://bit.ly/2hZ8RUu

12

been known to Judge Wall. Why was this not considered in his credibility assessment of
Clinger?

Walls Report evidences Clingers unfitness for the post he held. Clinger, at least
apparently, to some extent, celebrated the Hot Crazy Matrix. Clinger, as the Mayor notes,
played one woman against another and thereby created incredible, long-term hostility in
the workplace. Worse, when complaints were finally forthcoming regarding Clingers
propensity for sexualizing the workplace, Clinger reacted with deep anger and an attempt
to discover the identities of witnesses. That anger evidences a sense of extraordinary
entitlement. Apparently, Clinger could not see the error of his ways. He ranted, at length, to
highly placed officials, as to how he was going to exact vengeance. The evidence of Clingers
reaction is the antithesis of exoneration. Clingers reaction, standing alone, should have
disqualified him for the office he held it may have.


Conclusion

There is an ugly, synergistic effect between the botching of the first investigation,
the lengthy delays attendant to the second investigation, and the calculated refusal to
conduct a thorough second investigation.

The most significant immediate measure an employer can take in response to a
sexual harassment complaint is to launch a prompt investigation to determine
whether the complaint is justified. An investigation is a key step in the employers
response, see Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987) (employer
obliged to investigate complaint and to present a reasonable basis for its subsequent
action), and can itself be a powerful factor in deterring future harassment. By
opening a sexual harassment investigation, the employer puts all employees on
notice that it will take such allegations seriously and will not tolerate harassment in
the workplace. An investigation is a warning, not by words but by action. We have
held, however, that the "fact of investigation alone is not enough. Fuller, 47 F.3d at
1529. An investigation that is rigged to reach a pre-determined conclusion or
otherwise conducted in bad faith will not satisfy the employers remedial
obligation. See id.

Swenson v. Potter, 271 F.3d 1184, 1193 (9th Cir. 2001) (emphasis added); also see Lopez
Corona v. Les Schwab Tire Centers of Nevada (3:06-cv-0330-RAM) (March 26, 2008)

The Citys lack of understanding of Title VII (Judge Wall astutely refrains from taking
a position so as to not offend Mr. Hall) has compromised the Citys ability to assert the
critical and often dispositive Ellerth/Faragher affirmative defense. The City forfeited the
opportunity to interview all three women at length, and determine exactly the Citys
exposure and how to minimize, or even negate, that exposure. The City wasted $235,000 on
investigations, conducted without the benefit of the critical knowledge which would have
been supplied by the women. If this sounds like a continuing disaster, which will be funded
at $550 per hour, well, you got it. $235,000 will turn into a million, while the City Attorney
postures, and while the City loses the services of three very competent employees.

Further, by adopting the position he will not investigate, unless he may use the
investigation against Title VII complainants, the City Attorney sent a strong message, to

13

these potential plaintiffs, and to other potential complainants. Complain, and you open
yourself up to being investigated.18 Any doubt about this message is confirmed by the
extensive, and very inappropriate ideation contained in Judge Walls Report as to whether
my clients are engaged in some sort of felonious conspiracy.

It is against this background the reports must be considered. Given the failure to
interview the complainants and properly investigate their claims, the reports are anything
but definitive. The City has exponentially increased its litigation exposure through the loss
of an affirmative defense and has initiated a trial in the press. My clients have done nothing
wrong and will not be intimidated.

18 McCaw v. Potter (2006 U.S. Dist. LEXIS 61774):

Based on the record before it, the Court finds that a jury could reasonably infer that the sexual harassment
charge was not pursued in an attempt to retaliate against Plaintiff for bringing the claim. If so, it is
reasonably likely that an individual would not file a sexual harassment complaint if she felt that her
complaint would not be thoroughly investigated or that she would not be believed. Accordingly, the Court
will not dismiss this claim.

14