Free Uncategorized - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Quarles & Brady Streich Lang LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Lonnie J. Williams, Jr. (#005966) ([email protected]) Dawn C. Valdivia (#020715) ([email protected]) Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, v. Charles Schwab Corporation, Defendant. NO. CV 04-0790 PHX-JWS PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR COURT ORDER TO SECURE RECORDS RELATING TO ALLEGED DAMAGES AND MOTION FOR SANCTIONS

Defendant Charles Schwab & Co., Inc. (Schwab) asks this Court to order Plaintiff Marcela Johnson to execute certain releases under the premise that the sought after information is relevant to her damages claim. Schwab's Motion is devoid of any legal support.1 Specifically, Schwab seeks releases to obtain information from the Arizona Department of Economic Security, Industrial Commission of Arizona, and the State Compensation Fund. Schwab is not, however, entitled to such information because the Ninth Circuit does not permit earnings from unemployment and workers' compensation to be used to offset a plaintiff's claim for damages. See Kauffman v. Sidereal Corporation, 695 F.2d 343, 347 (9th Cir. 1983) (unemployment benefits received by successful plaintiff in an employment discrimination action are not offsets against a back pay award). In Kauffman, the Ninth Circuit held that unemployment compensation from a state fund supported by a tax on employers could not be used to offset the plaintiff's back pay award. Id. at 347. In reaching this conclusion, the Ninth Circuit relied on the United
1

28

During the meet and confer, undersigned counsel indicated that they would reconsider their position regarding the releases if Schwab's counsel provided them with legal authority to support their position. No authority was provided.

Case 2:04-cv-00790-EHC

Document 56

Filed 11/17/2005

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

States Supreme Court's holding in National Labor Relations Board v. Gullett Gin Co., 340 U.S. 361, 364, 71 S.Ct. 337, 339-340 (1951). In Gullet Gin, the Supreme Court upheld the National Labor Relations Board's refusal to deduct unemployment benefits from an employee's back pay award for discriminatory discharge. See Kauffman, 695 F.2d at 346, citing Gullet Gin. The Supreme Court held that consideration should not be given to collateral losses in framing an order to reimburse employees for their lost earnings and no consideration should given to collateral benefits that employees may have received. Id. The Ninth Circuit adopted the reasoning in Gullet Gin to apply to Title VII cases, stating: We find the reasoning of Gullett Gin persuasive because on another occasion the Supreme Court stated that the back pay provision of Title VII "was expressly modeled on the back pay provision of the National Labor Relations Act." Id. Because Schwab cannot offset Plaintiff's back pay award by amounts received from unemployment or workers' compensation, it is not entitled to documents from the requested agencies and the motion should be denied.2 Schwab also makes various other accusations against Ms. Johnson, including that she failed to disclose a damages calculation, records of her earnings, and refused to identify her current employer. These accusations are without merit. Plaintiff has been unable to complete a damages calculation because Schwab has refused, and continues to refuse, to provide any valuation of its benefits and has continued to delay the scheduling of a Rule 30(b)(6) deposition that seeks information regarding benefits. Indeed, on

November 14, 2005, Schwab filed a motion for a protective order to further delay the deposition, even though this Court ordered Schwab to cooperate with Plaintiff in scheduling this deposition. [Dkt. No. 53.] Additionally, Ms. Johnson has produced all documents in her possession relating to her damage claim and has provided all relevant
2

The Ninth Circuit upheld a District Court's decision to deduct workers' compensation benefits because the benefits were ultimately paid by the defendant and not derived from a collateral source. See McLean v. Runyon, 222 F.3d 1150 (9th Cir. 2000). Schwab is seeking only information regarding collateral benefits. To the extent that Schwab is seeking to offset Ms. Johnson's back pay award with unemployment or workers' compensation benefits that it paid, that information is in Schwab's possession, thereby rendering the requested releases unnecessary.

Case 2:04-cv-00790-EHC

Document 56

-2Filed 11/17/2005

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

mitigating information including various employers, dates of employment, and earnings.3 Ms. Johnson requests that this Court, pursuant to Fed. R. Civ. P. 37(a)(4)(B), award fees and costs incurred in responding to Schwab's motion because it is without merit, unsupported by the law in this jurisdiction, and intended solely to harass Plaintiff. DATED this 17th day of November, 2005. QUARLES & BRADY STREICH LANG LLP

By

s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Attorneys for Plaintiff Marcela Johnson

I hereby certify that on November 17, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the following CM/ECF registrants: Joseph T. Clees Christopher Mason Michelle H. Ganz Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 2415 E. Camelback Road Suite 800 Phoenix, AZ 85016 A copy of this documents was provided to The Honorable John W. Sedwick
QBPHX\115637.00002\1971150.1

3

These issues will be addressed more fully in Plaintiff's response to Schwab's Motion to Compel.

Case 2:04-cv-00790-EHC

Document 56

-3Filed 11/17/2005

Page 3 of 3