Free Reply to Response to Motion - District Court of Arizona - Arizona

1 2 3 40 North Center Street, Suite 200 4 Mesa, Arizona 85201 Telephone No.: (480) 464-1111 (480) 464-5692 5 Facsimile No.: Email: [email protected] 6 Attorneys for Plaintiff By: Michael R. Pruitt, State Bar No. 011792 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 Connie Alms, a single woman, 10 Case No. CIV 04-0332 PHX JWS Plaintiff, 11 PLAINTIFF'S REPLY TO vs. DEFENDANT'S RESPONSE TO 12 PLAINTIFF'S MOTION TO STRIKE AdvancePCS, a Delaware corporation, PORTIONS OF DEFENDANT'S 13 n/k/a CaremarkRx, Inc., a Delaware STATEMENT OF FACTS corporation, 14 Defendant. 15 Plaintiff Connie Alms, by and through her undersigned counsel, hereby submits 16 Plaintiff's Reply to Defendant's Response to Plaintiff's Motion to Strike Portions of 17 Defendant's Statement of Facts. Plaintiff moves the Court for an Order striking portions of 18 Defendant's Statement of Facts ("DSOF") on the grounds they (1) are unsupported by the 19 citation to the record, (2) are contained in Defendant's Response to Plaintiff's Non-Uniform 20 Interrogatories which was not verified and thus inadmissible (3) do not support the factual 21 allegation, (4) lack foundation, (5) are inconsistent or conflict with prior deposition 22 testimony, (6) are not made from personal knowledge, (7) rely on a document not produced 23 during discovery, and/or (8) are not admissible evidence. This Reply is supported by the 24 accompanying Memorandum of Points and Authorities and Plaintiff's Motion to Strike 25 Portions of Defendant's Statement of Facts. 26
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MEMORANDUM OF POINTS AND AUTHORITIES Legal Argument

Plaintiff incorporates by reference Plaintiff's Motion to Strike Portions of Defendant's

4 Statement of Facts ("Motion to Strike"). 5 Many of the legal arguments made in Plaintiff's Motion to Strike were not countered

6 or addressed in Defendant's Response to Plaintiff's Motion to Strike Portions of Defendant's 7 Statement of Facts ("Response to Motion to Strike") and so will not be discussed at length 8 again. Those issues include: 1) statements of fact not supported by citation to the record 9 should be stricken; 2) interrogatories that are not verified and signed under oath by the 10 person answering them violate Rule 33(b)(1) and (2) of the Fed.R.Civ.P. and are therefor 11 inadmissible evidence and should be stricken; 3) affidavits supporting a motion for summary 12 judgment must be made on personal knowledge; 4) the Court should strike any evidence 13 produced after the close of discovery; and 5) the Court can only consider admissible evidence 14 in ruling on a motion for summary judgment. 15 It should be noted that Defendant never denies in its Response to Motion to Strike that

16 Exhibit "2" of Defendant's Statement of Facts ("DSF") is a set of interrogatory answers that 17 are not verified or signed under oath. Plaintiff's counsel did request that defense counsel 18 provide the verification for those same interrogatory answers in a letter dated May 17, 2005, 19 but the verification was never produced. (See Exhibit "1"). Accordingly, those interrogatory 20 answers in their entirety are inadmissible and should be stricken along with any portion of 21 the Defendant's Statement of Facts that references them. Defendant also never denies in its 22 Response to Motion to Strike that Exhibit "5" of DSF was produced after the close of 23 discovery. Accordingly, that exhibit is likewise inadmissible and should be stricken, along 24 with any portion of Defendant's Statement of Facts that references it. 25 Defendant's Response to Motion to Strike does address affidavits and/or declarations

26 that directly contradict the witnesses' previous sworn deposition testimony, which are
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1 sometimes referred to as "sham" affidavits. As pointed out in Plaintiff's Motion to Strike, 2 "[t]he general rule in the Ninth Circuit is that a party cannot create an issue of fact by an 3 affidavit contradicting his prior deposition testimony." Kennedy v. Allied Mut. Ins. Co., 952 4 F.2d 262, 262 (9th Cir. 1991). 5 Defendant correctly observed that the facts in Kennedy dealt with the issue of a sham

6 affidavit that was filed in opposition to summary judgment. With this assessment of Kennedy, 7 Defendant made the following arguments: 8 9 10 11 12 13 "the doctrine [i.e. striking "sham" affidavits] is limited to instances where a party attempts to create a genuine issue of material fact to defeat summary judgment." (Response to Motion to Strike, page 3, line 19-20). **** "Thus, the sham affidavit doctrine Plaintiff seeks to utilize, by its very nature, does not even apply to the present case."(Response to Motion to Strike, page 4, line 9-10). These arguments are extremely dubious at best. It is hard to believe a court would

14 hold that a sham affidavit can be stricken if it is being used to create a genuine issue of 15 material fact while at the same time hold that a sham affidavit would be allowed if it was 16 used to show that there was no genuine issue of material fact in an attempt to obtain summary 17 judgment. Logically, the criteria for evaluating an affidavit should be applied consistently 18 to any affidavit filed in a summary judgment proceeding. 19 In an unpublished decision, Barber v. Hallmark Cards, Inc., 1994 WL 568872, at *5

20 (D. Kan. 1994), the court did in fact strike certain paragraphs in an affidavit filed in support 21 of a motion for summary judgment based on the fact that the paragraphs contradicted the 22 witnesses' earlier deposition testimony. The court explained its reasoning as follows: 23 24 25 26
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"Factors relevant in this determination include: `whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain.'" Id. at *5 (citation omitted).

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Defendant also claims that Adler v. Federal Republic of Nigeria, 107 F.3d 720, 727

2 (9th Cir. 1997) shows the court "refusing to apply sham affidavit doctrine in another context." 3 (Response to Motion to Strike, page 3, line 21-22). In reality, Adler is totally irrelevant and 4 deals with contradictory affidavits being considered to resolve an issue of immunity and has 5 nothing to do with whether a genuine issue of material fact exists in the context of a motion 6 for summary judgment. The court stated: 7 8 9 10 11 "But this is not a summary judgment motion. Summary judgment is intended to avoid a useless trial before a finder of fact. Courts have found that a party may not automatically avoid this screening mechanism by submitting affidavits that contradict his or her deposition testimony. But on the immunity issue, the district court is the finder of fact. As there is no screening mechanism to avoid, the purpose of excluding contradictory affidavits is lost." Adler at 728 (citations omitted). Defendant then goes on to state that "the sham affidavit doctrine has no applicability

12 where, as here, an affiant's declaration seeks to explain, rather than contradict prior 13 deposition testimony." (Response to Motion to Strike, page 3, line 26-27). They cite two 14 cases, the first is the irrelevant case of Leslie v. Grupo ICA, 198 F.3d 1152 (9thCir. 1999), 15 which dealt with an affidavit that was entirely consistent with deposition testimony but was 16 allegedly inconsistent with previous unsworn letters written by the witness. The second case 17 cited is Messick v. Horizon Indus., Inc., 62 F.3d 1227, 1231 (9th Cir. 1995). Apparently, 18 based on Messick, the Defendant states that: 19 20 21 22 "even under the sham affidavit doctrine, a party is not precluded from `elaborating upon, explaining or clarifying prior testimony' and that `minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence' do not require excluding an affidavit." (Response to Motion to Strike page 3-4, line 28, 1-4). Overlooking for the moment that Defendant has previously argued that the sham

23 affidavit argument does not apply to Mr. Wenban's declaration, his declaration does not seek 24 to explain or elaborate, but as will be shown, directly contradicts his previous deposition 25 testimony. Defendant is in fact attempting to use the contradiction present in Mr. Wenban's 26 declaration to show there is no genuine issue of material fact present in this matter.
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Defendant in its Motion for Summary Judgment has repeatedly stressed that the open

2 position in Scottsdale was a newly created temporary position with statements such as: 3 4 5 6 The declaration of Mr. Wenban used very similar language when he declared: 7 8 9 10 11 12 "To facilitate a smooth transition, AdvancePCS decided to create a new IS Analyst position in Scottsdale that would be temporary and ultimately would be eliminated or transferred to Dallas once the reorganization of the IS Department to Dallas was complete. [Footnote one] We also created another temporary junior position in the soon-to-be-closed Scottsdale IS Department to assist with the transition of IS services to Dallas. However, that position dealt with mainframe security issues, rather than platforms, so Ms. Alms did not apply for that position." (DSF, Exhibit 3, page 2, ¶ 10 and footnote 1). This testimony directly contradicts the previous, sworn deposition testimony of Mr. "After the January 2 meeting, Management decided that in order to facilitate a smooth transition of the IS function from Scottsdale to Dallas, a new IS Analyst position would be created in Scottsdale that would be temporary and ultimately would be eliminated or transferred to Dallas once the reorganization of the IS functions to Dallas was complete."(See Defendant's Motion for Summary Judgment, page 4, line 4-7).

13 Wenban which included the following testimony: 14 15 16 17 18 19 20 21 22 23 24 25 26 A. Q. A. Q. A. Q. A. Q. Q. A. So ultimately, it was decided to allow two positions to remain open in this area in Scottsdale; is that right? Not permanently. One position permanently and one would transition later on. One or two quarters later on, we would then -- once everybody felt comfortable, we would then transfer that last position to Dallas and make the offer, same -- I guess the same process. All right. And the position that would transition to Dallas was that the junior position that you asked for? Yes Okay. And when we say junior, it would have been junior to the position that is referenced on Exhibit 1? Correct. And also junior in the fact that it wasn't -- it was gonna report in to this position here, take direction from this position. While you were employed at AdvancePCS, was that position later moved to Dallas? Yes, it was. Was the first position that was decided to remain in Scottsdale, did that position continue to be in Scottsdale throughout your employment at AdvancePCS? No.
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Q. A.

Q. A. Q. A.

When was that position changed? I don't remember the exact date of when that position changed, but the first position did move when the woman that was in the position went on maternity leave and made a decision to stay home with her baby, and -- so we didn't fill the position -Okay. -- in Scottsdale. We filled it in Dallas. All right. If the woman had not left the company, were there any plans to transition her or that position to Dallas? No.

8 (DSF, Exhibit 4, Deposition of Rick Wenban, Page 38, line 2 through page 39, line 8) 9 10 11 12 13 A. 14 15 16 17 18 A. (DSF, Exhibit 4, Deposition of Rick Wenban, Page 78, line 11 - 19) Q. Okay. Did you -- before you made the recommendations on who to hire for the permanent position, did you consult with Gina Wise? [Emphasis added]. I did. Q. Okay. Gotcha. All right. We moved on to a different topic, but I want to go back to your meetings with the employees who were seeking the position, the permanent position in Scottsdale. Is there anything about -- and I asked you already about your meeting with Connie Alms, and I believe you said that there's nothing that stands out that you can remember specifically about the get-to-know-you meetings that you had with her; is that right? [Emphasis added]. Correct.

19 (DSF, Exhibit 4, Deposition of Rick Wenban, Page 79, line 8 - 11) 20 21 22 23 24 A. Q. Okay. I'm handing you Exhibit 5 to your deposition. This is a performance, planning and review worksheet for Connie Alms for the date of March 1 of 2001. In connection with your evaluation and recommendations for the position, the permanent position in Scottsdale, do you recall receiving and reviewing Exhibit 5? [Emphasis added]. I do not.

25 (DSF, Exhibit 4, Deposition of Rick Wenban, Page 89, line 3 - 9) 26
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Q.

A.

Okay. If you would have known about the Lotus Notes and NT security training that we saw from her certificates that Connie had, would that have changed your decision as to who should be offered the permanent position? [Emphasis added]. No, it wouldn't.

5 (DSF, Exhibit 4, Deposition of Rick Wenban, Page 172, line 12 - 16) 6 7 8 Scottsdale position was planned to be a permanent position. Any later statements in Mr. 9 10 Wenban's declaration that contradict his deposition testimony, such as a claim the Scottsdale 11 position was originally planned to be a temporary position, should be stricken and seen as 12 a deliberate attempt to falsely assert a fact designed to bolster the claim that there is no 13 genuine issue of material fact in this case. 14 II. Paragraphs In Defendant's Statement of Facts ("DSF") Should be 15 16 Stricken 17 18 19 20 ¶ 2 is admissible evidence because: 1) the same information is also found in DSF Exhibit 2, In Defendant's Response to Motion to Strike, page 5, ¶ 2 it is argued that the purported description of the responsibilities of the AdvancePCS IS department found in DSF Mr. Wenban was cross examined during his deposition, he had all of the pertinent facts available to him at that time and he clearly, and repeatedly, said or acknowledged the

21 page 9, which is however part of the same set of inadmissible, unverified answers to 22 interrogatories; and 2) the same information is found in the Senior Information Security 23 24 25 listing of department responsibilities are not the same thing. Accordingly, the information 26 contained in DSF ¶ 2 should be stricken for the reasons stated in Plaintiff's Motion to Strike.
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Analyst job description disclosed by Plaintiff. However, a job description and a narrative

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In Defendant's Response to Motion to Strike, page 5, ¶ 4, page 6, ¶ 5 and again in page 6, ¶ 6, it is now claimed that "Mr. Wenban does have personal knowledge about the reduction in force because he testified that his employment with Defendant ended because

5 of the same reduction in force." (Emphasis added). However, Defendant's own exhibit shows 6 that Mr. Wenban never testified to this. What he actually said was: 7 8 9 10 11 12 13 Q. A. Q. A. Q. A. Q. A. How long did you have your position? From December 31, 2002 to June 2004. Why did you leave? I'm sorry. Were you finished? Yes, I was. Okay. Why did you leave AdvancePCS? Reduction in force, RIF. Do you recall how many other people were laid off at that time besides yourself? Over company wise, I'm not sure. I wasn't privy to that. In my group, there was two others that were laid off at that time.

14 (Response to Motion to Strike, Exhibit 4, Wenban deposition, page 11, line 11 - 22). 15 16 17 purported to have affected Plaintiff and, it should be noted, that Mr. Wenban's job was Mr. Wenban clearly never claims that he lost his job in the same reduction in force

18 apparently eliminated in June 2004 while Plaintiff lost her job approximately two years and 19 three months earlier in March of 2002. From the information presented there still is no 20 21 force affecting Plaintiff. 22 23 In Defendant's Response to Motion to Strike, page 7, ¶ 7 the claim is made that the foundation to believe that Mr. Wenban had personal knowledge of the alleged reduction in

24 Analyst position is "temporary." As previously outlined, Mr. Wenban's deposition testimony 25 shows this to be a false and misleading claim. 26 In Defendant's Response to Motion to Strike, page 7, ¶ 11 and in page 8, ¶ 12
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1 Defendant claims that, "Defendant identified Rosetta Carr as being hired on November 23, 2 3 4 "Defendant also disclosed Ms. Carr's date of hire in its Answers to Interrogatories" and that 1998, as a Senior Information Security Analyst in its Position Statement to the EEOC," that

5 "Defendant attached the New Hire Information of Ms. Carr to its Statement of Facts merely 6 to clarify Ms. Carr's position and date of hire." However, Ms. Carr's name never appears in 7 8 Defendant is now trying to "clarify Ms. Carr's position and date of hire" with a document 9 10 11 it knows was produced after the close of discovery. In Defendant's Response to Motion to Strike, page 8, ¶ 13, Defendant again misstates the Position Statement or in the unverified, inadmissible Answers to Interrogatories and

12 the nature of the Scottsdale position in an effort to bolster its argument that there is no 13 14 15 testimony of Mr. Wenban, the Scottsdale position was originally meant to be permanent and genuine issue of material fact in this case. As has been previously shown by the deposition

16 was not intended to be moved to Dallas. It was only after Ms. Simonton failed to return from 17 maternity leave that a decision was made to modify those intentions and transfer the 18 19 20 In Defendant's Response to Motion to Strike, page 8, ¶ 14, Defendant misstates the position.

21 reason for Plaintiff's objection to DSF ¶ 34. This particular paragraph clearly says that Ms. 22 Simonton "had performed IS work for the Company for almost 1 ½ years longer than 23 24 work sometime later after she starting working for AdvancePCS and the record shows that 25 26 she did not perform IS work for almost 1 ½ years longer than Plaintiff. In addition, DSF ¶ Plaintiff." The record shows that Ms. Simonton had only begun to perform entry level IS

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1 34 falsely claims that Ms. Simonton had a Computer Science degree when the record shows 2 3 4 DSF, ¶ 34, attempting to inflate Ms. Simonton's qualifications for holding the permanent that she had earned a degree through the Business College of Northern Arizona University,

5 Scottsdale position without record support. 6 7 8 does not show that the Scottsdale position was intended to be temporary and as previously 9 10 11 outlined, the deposition testimony of Mr. Wenban also shows this to be false. In Defendant's Response to Motion to Strike, page 9, ¶ 16 and in DSF ¶ 38 the In Defendant's Response to Motion to Strike, page 9, ¶ 15 it is claimed that DSF ¶ 37 is supported by the record and a citation is given. However, a careful reading of that citation

12 Defendant again repeats claims that have previously been shown to be untrue regarding the 13 14 15 In Defendant's Response to Motion to Strike, page 9, ¶ 17, the false and misleading so called reduction in force and Mr. Wenban's knowledge of it.

16 assertion is again made that the Scottsdale position "was always designed to be temporary 17 in nature" and "the undisputed fact is that the position was temporary and was relocated to 18 19 20 was originally intended to be permanent and was only moved to Dallas after Ms. Simonton Dallas." As previously outlined, Mr. Wenban's deposition testimony shows that the position

21 informed AdvancePCS that she was not going to return to the Scottsdale position at the end 22 of her maternity leave. 23 24 claim found in DSF ¶ 56 that the EEOC did not perform an adequate investigation. It is 25 26 unclear, and the record cited by Defendant fails to provide any real insight, into what specific In Defendant's Response to Motion to Strike, page 10, ¶ 21, Defendant defends the

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1 actions the EEOC did, or did not, do during the course of its investigation of Plaintiff's 2 3 4 5 foundation, amount to mere conjecture and speculation and should be stricken. In DSF ¶ 57, the age of Mr. Wenben is simply noted, without providing any record charge of discrimination. For this reason the allegations found in DSF ¶ 56 clearly lack

6 citation or foundation, while in Defendant's Response to Motion to Strike, page 10, ¶ 22, it 7 8 age only became an issue as the result of Defendant claiming it was relevant in Defendant's 9 10 Motion For Summary Judgment. Therefor, since the alleged age of Mr. Wenban is provided is claimed that Mr. Wenban's age "is not a crucial issue in this case." In fact, Mr. Wenban's

11 without any foundation, it should be stricken. 12 13 14 15 Defendant's Statement of Facts, Plaintiff Alms respectfully requests this Court grant her III. Conclusion For the reasons and grounds stated herein and in her Motion to Strike Portions of

16 request and strike the indicated portions of Defendant's Statement of Facts. 17 18 19 20 21 22 23 24 25 26
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DATED this 23rd day of March, 2006. JACKSON WHITE s/ Michael R. Pruitt By: Michael R. Pruitt, Esq. 40 North Center Street, Suite 200 Mesa, Arizona 85201 Attorneys for the Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on March 23, 2006, I electronically transmitted the attached 2 documents to the Clerk's Office using the CM/ECF System for filing and transmitted a 3 Notice of Electronic Filing to the following CM/ECF registrants: 4 Steven Biddle, Esq. 5 6 7 COPY of the foregoing mailed this 23rd day of 8 March, 2006, to: 9 Honorable John W. Sedwick 10 United States District Court 222 W. 7th Avenue, #4 11 Anchorage, AK 99513 12 By s/ Michael R. Pruitt F:\ABC\Alms\Mot.Strike\Reply.Mot.Strike.Def.SOF.Alms.wpd 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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s/ Michael R. Pruitt Michael R. Pruitt