Free Response in Opposition to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6

JEFFREY F. ARBETMAN ARBETMAN LAW OFFICE, P.C. Arizona State Bar No. 005380 349 N. 4TH Ave. Phoenix, Arizona 85003 (602) 265-1770 [email protected]

UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff, Thomas D. McCaffrey, by and through his attorney undersigned, hereby replies to Defendant's Opposition to Plaintiff Motion to file a Second Amended Complaint alleging recent acts of retaliation. Plaintiff also opposes Defendant's Motion for Protective Order objecting to an additional deposition of witness Kathleen Sinclair in connection with retaliation events that occurred after her deposition. This Reply and Opposition are supported by the attached Memorandum of Points and Authorities, affidavit, exhibits, and undersigned counsel's certification attached hereto. v. John Snow, Secretary of the Treasury, and, Michael Chertoff, Director of the Department of Homeland Security, Defendants (Oral Argument Requested) Thomas D. McCaffrey, Civ-04-0701-PHX-SMM Plaintiff PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO FILE SECOND AMENDED COMPLAINT AND PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER

Case 2:04-cv-00701-SMM

Document 31

Filed 06/29/2006

Page 1 of 6

1 2 3 4 5 6 7 8

Respectfully Submitted this

Day of June 2006.

ARBETMAN LAW OFFICE, P.C.

s/Jeffrey F. Arbetman Jeffrey F. Arbetman, Esq. Attorney for Plaintiff

MEMORANDUM OF POINTS AND AUTHORITIES 9 10 Course of Proceedings 11 On April 4, 2004 Plaintiff filed the original Complaint in this matter alleging a 12 violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 13 §621, et seq. and retaliation. Plaintiff alleges in his Complaint that he filed formal 14 complaints of age discrimination and retaliation on December 12, 2000 and January 3, 15 16 17 Thereafter, Plaintiff was the target of additional acts of retaliation and was, 18 without objection, granted permission by this court to file an Amended Complaint (24). 19 That Amended Complaint was filed on June 6, 2005. The additional acts of retaliation 20 21 was filed. Plaintiff exhausted his administrative remedies with regard to those acts of 22 23 24
1

2002 with Defendant's EEO office.1 He thereafter exhausted his administrative remedies.2

occurred on April 28, 2004, July 9, 2004, and July 12, 2004,3 after the original Complaint

25 26 27 28
2

Complaint paragraph 19. Complaint paragraph 24. Amended Complaint paragraphs 25 and 26. 2

3

Case 2:04-cv-00701-SMM

Document 31

Filed 06/29/2006

Page 2 of 6

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

retaliation, on April 20, 2005.4 On June 5, 2006, pursuant to stipulation of the parties (28), this court ordered that the discovery deadline in this case be extended to September 29, 2006 (29). On May 3, 2005, Plaintiff filed a motion for leave to file a Second Amended Complaint (23, 24). In the proposed Second Amended Complaint, Plaintiff alleged that he was the target of additional and related retaliatory events on January 14, 2005 5 and October 31, 2005 6 . On February 4, 2005 Plaintiff sought informal counseling and March 15, 2005 filed a formal complaint of discrimination/reprisal with Defendant's EEO Office with respect to the retaliation events described in paragraph 27 of the Proposed Second Amended Complaint, which was accepted by Defendant under Complaint No. ICE-05W172. Ex. A.7 The Defendant found that the Plaintiff became aware of the TECS database records as a result of an audit on January 14, 2005. Ex. A, pg.1, paragraph 2. Plaintiff requested a Final Agency Decision on January 26, 2006. Ex. B. On February 6, 2006 Plaintiff filed a formal complaint of discrimination/retaliation with Defendant's EEO Office with respect to retaliation events beginning October 31, 2005, which was accepted by the Agency under Complaint No. HS-06-ICE-000533 Ex.C. On January 30, 2006, undersigned counsel took the deposition of witness Kathleen Sinclair, in connection with the October 31, 2005 retaliation events described in the Proposed Second Amended Complaint. After the deposition was concluded, Ms. Sinclair alleged that Plaintiff attempted to intimidate and harass her, in connection with this case,

4

24
5

Amended Complaint paragraph 27. Proposed Second Amended Complaint, ¶27. Proposed Second Amended Complaint, ¶28. "Ex." refers to the exhibits attached to this reply. 3

25 26 27 28
6

7

Case 2:04-cv-00701-SMM

Document 31

Filed 06/29/2006

Page 3 of 6

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

subsequent to the taking of the deposition.8 Plaintiff then filed another complaint of retaliation with the Defendant's EEO Office denying he intimidated or harassed Ms. Sinclair and alleging that Defendant's investigation of the complaint was retaliatory (Complaint No. HS-06-ICE-001029). Ex. D. Undersigned counsel requested that Defendant produce Ms. Sinclair for a continued deposition relating only to the allegations of harassment and intimidation occurring after the deposition. Ex. E. Argument I. The Second Amended Complaint Leave to amend a complaint is generally granted absent surprise or prejudice to the opposing party.9 Therefore, this court must weigh the factors of bad faith, undue delay, prejudice to the opposing party and futility of the amendment against the granting of the motion. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9 th Cir. 1987), Cert. Granted, judgment vac'd, 492 U.S. 914 (1989); United States ex rel Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9 th Cir. 2001). In this case Plaintiff has been granted permission to file an Amended Complaint alleging continuing acts of retaliation which occurred after the original Complaint was filed. Plaintiff now asks permission of this court to file a Second Amended Complaint for retaliatory acts which occurred after the Amended Complaint was filed. Defendant's first argue that Plaintiff did not timely exhaust his administrative remedies. Defendants argue that Plaintiff waited for " ...five years after he knew or should have know [sic] of the assignment of these cases to him." The Defendant's own EEO investigation found that Plaintiff did not become aware of retaliatory event regarding the TECS records until January 14, 2005. Ex. A, page 2. This finding was

8

Exhibit 2 attached to Defendant's opposition.

Defendants admit that this court did not set a deadline for amendments to pleadings in its Scheduling Order of March 3, 2005; Defendant's opposition at Page 3, lines 11-12. 4

9

Case 2:04-cv-00701-SMM

Document 31

Filed 06/29/2006

Page 4 of 6

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

never challenged at the administrative level. Defendant has presented no basis for challenging its own finding at this juncture. See, Oliver v. Levin, Fishbein, Sedran, & Berman, 38 F.3d 1380, 1386 (3 rd Cir. 1994). Furthermore, Plaintiff has demonstrated herein that he has complied with EEO procedures, timely filed charges of retaliation, and has exhausted/ and or is in the process of exhausting his administrative remedies by the time this case is to be tried. 29 C.F.R. § 1614.201. Contrary to Defendant's assertions to the contrary, Plaintiff has not been dilatory with respect to any matters alleged in the Second Amended Complaint. There has been no delay. Defendants have not demonstrated that they have been prejudiced. The Agency has been put on notice of the acts of retaliation and the parties are continuing discovery in those matters. Plaintiff has taken the deposition of William O'Neil and Kathleen Sinclair on January 30, 2006 and filed requests for production of the TECs records which have been supplied to Plaintiff. II. Continued Deposition of Kathy Sinclair Defendants have moved for a protective order of Kathleen Sinclair. Defendant alleges, without factual support, that a continued deposition of Ms. Sinclair would be annoying and embarrassing. Ms. Sinclair did not claim at any time that the deposition was annoying or embarrassing only that she stated that "she did not like being involved in this deposition". This does not amount to annoyance or embarrassment. Furthermore, there is no doubt that the discovery requested of Ms. Sinclair is calculated to lead to relevant evidence of retaliation. Plaintiff was never informed by Ms. Sinclair that she felt Plaintiff was harassing and intimidating her. It was not until Plaintiff received the letter dated February 6, 2006 that is attached as Exhibit 2 to Defendant's Motion for Protective Order, that Plaintiff knew that he was the target of Ms. Sinclair's allegations of harassment and intimidation, and was ordered to have no further contact with her. As a result of these events, the matter was referred to Defendant's

5

Case 2:04-cv-00701-SMM

Document 31

Filed 06/29/2006

Page 5 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14

Office of Professional Responsibility and management conducted an investigation. Ex. F. As a result, Plaintiff filed a charge of retaliation against the Agency. Ex. D. Based the fact that the allegations by Ms. Sinclair specifically involve matters in this case, it is clear that Plaintiff is entitled to a continued deposition of Ms. Sinclair to explore the additional charges of retaliation by Defendant and the credibility of Ms. Sinclair. Wherefore Plaintiff requests that this Court grant Plaintiff's Motion to file the proposed Second Amended Complaint and deny Defendant's Motion for Protective Order. ARBETMAN LAW OFFICE, P.C. s/Jeffrey F. Arbetman Jeffrey F. Arbetman, Esq. Attorney for Plaintiff CERTIFICATE OF SERVICE

15 I hereby certify that on the ____ day of June, 2006, I electronically transmitted the attached REPLY to the following: [email protected] 16 I hereby certify that on the ____ day of June, 2006, I served attached REPLY by mail/hand17 delivery* on the following: 18 John R. Mayfield, Esq. Assistant U.S. Attorney 19 Two Renaissance Square 40 North Central Ave., Suite 1200 20 Phoenix, AZ 85004 21 The Honorable Stephen M. McNamee* U.S. District Court 22 District of Arizona Sandra Day O'Connor U.S. Courthouse 23 Phoenix, AZ 85003-2151 24 s/ Eva Lindsay 25 26 27 28 6

Case 2:04-cv-00701-SMM

Document 31

Filed 06/29/2006

Page 6 of 6