Free Motion for Extension of Time - District Court of Colorado - Colorado

Case 1:03-cv-02435-PSF-PAC

Document 189

Filed 12/20/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02435-PSF-PAC (Consolidated with 04-cv-00639-PSF-PAC) LILLIAN F. SANDLE, Plaintiff, v. ANTHONY J. PRINCIPI, Secretary, Department of Veterans Affairs, Defendant.

Civil Action No. 04-cv-00639-PSF-PAC (Consolidated with 03-cv-02435-PSF-PAC) LILLIAN F. SANDLE, Plaintiff, v. ANTHONY J. PRINCIPI, et al., Defendants.

DEFENDANT'S MEMORANDUM IN SUPPORT OF EXTENSION OF DISCOVERY CUT-OFF DATE AND RELATED DATES, FOR PURPOSES OF THE DECEMBER 20, 2005 STATUS CONFERENCE

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At this Court's October 18, 2005 Status Conference, at which counsel for plaintiff Lillian F. Sandle appeared for the first time, the Court allowed plaintiff to file an amended complaint and, in addition, set a very short schedule for the parties to complete discovery on the amended complaint, noting that one of the reasons for the exceedingly short discovery schedule was that the Court expected plaintiff's new counsel to narrow the scope of the case and focus on those claims that appeared to plaintiff's counsel to be most appropriate for judicial consideration. The parties are now governed by a January 23, 2006 discovery cut-off deadline. See Docket No. 180 (Order dated December 5, 2005, granting plaintiff's motion for extension). Rather than narrow the issues and claims to be resolved in this matter, plaintiff's Second Amended Complaint, filed November 9, 2005,1 significantly expands the issues by adding 13 new claims. Defendant is physically incapable of investigating and researching these new claims in the period of time remaining to conduct discovery in this case, and it would be manifestly unjust to require defendant to try these claims without affording a reasonable opportunity to conduct the necessary discovery. Defendant requests a six-month extension of the discovery cut-off period to allow defendant the opportunity to conduct discovery. Plaintiff opposes this request.

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The Second Amended Complaint is 94 paragraphs in length. See Docket No.

169. 2

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FACTUAL BACKGROUND Although the Second Amended Complaint is itself not clear as to exactly what alleged actions by defendant are at issue here -- see Docket No. 169 (Second Amended Complaint) at ¶¶ 17, 25, 37, 56, 71 2 ­ plaintiff's response to Defendant's First Supplemental Set of Discovery Requests is clear as to the actions allegedly taken by defendant which are now at issue. See Exhibit 1, attached. That document demonstrates that plaintiff has considerably expanded the issues and claims. Id. Plaintiff primarily identifies these new claims and issues in her responses to defendant's interrogatories 1 and 2. They include the following: * plaintiff was "denied a position in Nursing Service/Education . . . in or about November 1986"; plaintiff was "denied the position of Geriatric Evaluation Unit Coordinator and Head Nurse . . . on December 18, 1986"; plaintiff was "denied the position of Administrative Assistant in Nursing Service . . . after applying for the position on April 16, 1987"; plaintiff was "denied the position of Head Nurse, a vacancy that was announced on November 20, 1987"; plaintiff was "denied the position of Quality Assurance Specialist, a vacancy that was announced on January 6, 1988";

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After defendant received plaintiff's Second Amended Complaint, defendant wrote a letter to plaintiff, requesting in light of the very short time frame available to the parties to conduct discovery that plaintiff further amend her Complaint and clarify the specific actions taken by defendant which allegedly violated Title VII and the Rehabilitation Act. Plaintiff in her responsive letter stated that she would not do so. 3

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plaintiff was "denied a position in Nursing Education, for which she requested consideration on August 3, 1989"; plaintiff was "denied the position of Nuclear Medicine Technologist, for which she requested consideration on August 8, 1989"; plaintiff was "denied a position on the EEO counselor committee, for which she requested consideration . . . on August 19, 1989"; plaintiff was "denied the position of Geriatric Evaluation Unit Coordinator, for which she requested consideration on October 20, 1989"; plaintiff was "denied the position of Patient Health Education Coordinator/Administrative Assistant . . . on April 19, 1990". plaintiff's request for administrative leave to seek EEOC counseling on December 14, 1989 was denied; plaintiff's request for administrative leave to seek EEOC counseling on February 28, 1990 was denied; plaintiff's request for administrative leave to seek EEOC counseling on June 13, 1990 was denied.

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See Exhibit 1 at 3-5. In short, plaintiff's new claims include the allegation that she was denied nine substantive positions, an EEO counselor committee position, and three requests for administrative leave. These new claims and issues only came to light in plaintiff's Responses to Defendant's First Supplemental Set of Discovery Requests. They are not mentioned anywhere in plaintiff's Second Amended Complaint, see Docket No. 169, nor are they mentioned anywhere in plaintiff's original Complaint, see Docket No. 4 (a copy of which has been attached as Exhibit 4), or in plaintiff's February 7, 2005 response to defendant's

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Case 1:03-cv-02435-PSF-PAC

Document 189

Filed 12/20/2005

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First Set of Interrogatories (a copy of which has been attached as Exhibit 3). Moreover, none of these claims were mentioned by the Administrative Law Judge in his 90-page decision on plaintiff's formal written administrative complaints of discrimination, see Exhibit 2, nor were they mentioned by Ms. Sandle during his deposition in this case on February 7, 2005. In short, these claims are brand new. DISCUSSION Plaintiff's new claims will require extensive efforts on defendant's part to discover the facts and circumstances surrounding the claims. These efforts will by necessity require attempts to locate relevant documents from VA closed files at the Federal Records Center, additional searches for relevant documents within the VAMC Denver itself, and discussions and interviews with past and present VA employees. Given the nature and age of the new claims, it will not be a simple matter for defendant to easily locate such information and documentation, and defendant will need some time to accomplish these tasks. /// ///

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Wherefore, defendant requests that the discovery cut-off be extended to July 2005, and that all other dates in this case, including the trial date, be continued for a similar period of time. Dated this 19th day of December, 2005. Respectfully submitted, WILLIAM J. LEONE United States Attorney s/ Michael C. Johnson MICHAEL C. JOHNSON Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected] Counsel for Defendant

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Case 1:03-cv-02435-PSF-PAC

Document 189

Filed 12/20/2005

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CERTIFICATE OF SERVICE I hereby certify that on this 19 th day of December, 2005, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: Counsel for Plaintiff: Elizabeth Kapukihilani Pietsch Email: [email protected] Dugan William Edward Bliss Email: [email protected] Sean Robert Gallagher Email: [email protected]

I hereby certify that on this 19 th day of December, 2005, I served the foregoing document via electronic mail on the following non-CM/ECF participant: Agency Counsel: Thomas Kennedy [email protected]

s/ Michael C. Johnson MICHAEL C. JOHNSON Attorney for Defendant United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected]

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