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

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Steven G. Biddle; AZ Bar No. 012636 [email protected] Christie L. Kriegsfeld, AZ Bar No. 022537 [email protected] LITTLER MENDELSON, P.C. 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Facsimile: 602.957.1801 Attorneys for Defendant

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Connie Alms, a single woman, Plaintiff, v. AdvancePCS, a Delaware corporation, n/k/a CaremarkRx, Inc., a Delaware corporation, Defendant. Defendant AdvancePCS ("AdvancePCS" or "Defendant")1, by and through its undersigned counsel, hereby submits its Response to Plaintiff's Motion to Strike Portions of Defendant's Statement of Facts in support of Defendant's Motion for Summary Judgment ("MSJ"). This Response is supported by the accompanying Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In her Motion to Strike, Plaintiff takes issue with certain of Defendant's fact statements in support of its MSJ. With the exception of a few typographical errors in some of the citations to the supporting materials, all of the contentions in Defendant's Statement of Facts are properly supported by the cited materials and otherwise proper.
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Case No.: CIV 04 0332 PHX JWS DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO STRIKE PORTIONS OF DEFENDANT'S STATEMENT OF FACTS

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

In March 2004, AdvancePCS was acquired by CaremarkRx, Inc.

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Document 58

Filed 03/13/2006

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

II.

LEGAL ANALYSIS A. Summary Judgment Standard

Pursuant to FRCP 56(c), "[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Accordingly, motions for summary judgment may be based on affidavits, declarations and discovery documents, including answers to deposition questions or interrogatories. The party requesting summary judgment does not necessarily need to put on evidence to negate the opponent's claim; it may simply reference portions of the pleadings, discovery responses, and depositions which, along with any affidavits, show the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Bhan v. NME Hospitals, Inc., 929 F.2d 1401 (9th Cir. 1991). Here, Defendant's MSJ is properly supported by the record before the Court. All of the evidence relied upon by Defendant in preparing its MSJ is based upon admissible discovery responses, deposition testimony, and supporting declarations. Upon close review of Plaintiff's Motion to Strike, it is clear that the thrust of Plaintiff's argument appears to be that the factual representations made in Defendant's Statement of Facts are not identical in substance or "word-for-word" to the deposition testimony, declarations, or discovery responses Defendant cited to as supporting materials. Notably, however, Plaintiff has not provided any case law to support this muddled contention and instead urges the Court that all of the statements of fact it takes issue with should be stricken as unsupported and inadmissible. In reality, Plaintiff failed to ask the necessary questions during the depositions and discovery process to establish her age discrimination claim and is now attempting to create a genuine issue of material fact by moving to strike certain portions of Defendant's Statement of Facts, some of which are not even crucial to this Court's analysis of Defendant's MSJ.

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

Even if the Court decided to grant Plaintiff's Motion to Strike, which it should not, Defendant's MSJ is still supported by the remaining undisputed facts that clearly establish Defendant had legitimate economic reasons for a Company-wide reduction in force that led to the elimination of Plaintiff's position, and that Plaintiff was not retained to fill a new position created in her department for legitimate, non-discriminatory reasons wholly unrelated to her age. B. Legal Standard for Evaluating Affidavits

In her Motion to Strike, Plaintiff claims the Court should disregard the Declaration of Richard Wenban because it differs from his deposition testimony. In support of this claim, Plaintiff purports to set forth the "legal standard" for evaluating "sham" affidavits filed in opposition to summary judgment motions, but provides the Court with only half the analysis. First, the sham affidavit doctrine prohibits a party from creating a genuine issue of material fact by submitting an affidavit or declaration that contradicts prior deposition testimony. See Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 265 (9th Cir. 1991) (emphasis added). As the Kennedy court explained: If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact. Id. Thus, the doctrine is limited to instances where a party attempts to create a genuine issue of material fact to defeat summary judgment. See, e.g., Adler v. Federal Republic of Nigeria, 107 F.3d 720, 727 (9th Cir. 1997) (refusing to apply sham affidavit doctrine in another context). In fact, Plaintiff has not presented the Court with any authority where this doctrine has been applied to an affidavit created by a defendant in support of a summary judgment motion. Certainly, Mr. Wenban's Declaration was not provided to "create" a genuine issue of material fact and, as discussed below, it does not change his deposition testimony at all. Further, the sham affidavit doctrine has no application where, as here, an affiant's declaration seeks to explain, rather than contradict, prior deposition testimony. See Leslie v. Grupo ICA, 198 F.3d 1152 (9th Cir. 1999); Messick v. Horizon Indus., Inc., 62 F.3d 1227,
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

1231 (9th Cir. 1995) (stating that, 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). This is true because courts are concerned with "sham" testimony that flatly contradicts earlier testimony in an attempt to "create" an issue of fact and avoid summary judgment. Indeed, "before [striking an affidavit], the district court must make a factual determination that the contradiction was actually a `sham.'" Kennedy, 952 F.2d at 267 (emphasis added). Thus, the sham affidavit doctrine Plaintiff seeks to utilize, by its very nature, does not even apply to the present case. Mr. Wenban did not provide his Declaration to "create" a genuine issue of material fact. Moreover, Mr. Wenban's Declaration does not contradict ­ much less "flatly" contradict ­ his deposition testimony. Rather, the Declaration was offered to clarify and further explain his deposition testimony and his personal knowledge. Mr. Wenban's Declaration was prepared by him and the information contained therein is based on his personal knowledge. Plaintiff deposed Mr. Wenban and had the opportunity to ask him specific questions regarding his personal knowledge of the reduction in force and reorganization of the Company, as well as the circumstances surrounding the decision to hire Ms. Carr and Ms. Simonton for the two positions that were created as a result of the reorganization. Just because Plaintiff did not get the answers she wanted, she cannot now attempt to create a genuine issue of material fact by arguing Mr. Wenban's deposition testimony is contradicted by his Declaration when it is not. Despite Plaintiff's hyperbole, no so-called "contradictions" exist. C. Defendant's Statements of Fact Are Supported By the Record and Should Not Be Stricken.

All of Defendant's factual statements in support of its MSJ are admissible, supported by the record and should not be stricken. The following is a listing of all of Defendant's factual statements Plaintiff is seeking to have stricken, and Defendant's rationale for each statement. As will be shown, all the factual statements are proper and should not be stricken.

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

1.

Defendant's Statement of Fact ("DSF") ¶ 1 is clearly supported by the record,

however, due to typographical error, the deposition citation provided in support of DSF ¶ 1 is incorrect. The correct citation is contained in the pages attached hereto as Exhibit 1 to Defendant's Response to Motion to Strike ("DRMS"), Deposition of Connie Alms ("Alms DP"), pp. 43:16-25.2 2. DSF ¶ 2 is clearly supported by the record and should not be stricken. The

exact same information regarding the responsibilities of the IS Department was referenced in Defendant's Responses to Plaintiff's Non-Uniform Interrogatories (DSF Exhibit 2, p. 9), as well as the Job Description disclosed by Plaintiff and Bates Labeled as EEOC 050-052 (DRMS Exhibit 2). Accordingly, DSF ¶ 2 is supported by admissible evidence and was properly disclosed during discovery. 3. DSF ¶ 4 is clearly supported by the record, however, due to a typographical

error, the deposition citation provided in support of DSF ¶ 4 is incorrect. The correction citation is DSF Exhibit 1, Alms DP, pp. 52:11-15; 53:1-6. As further evidence that Plaintiff remained in her position until she separated from the Company on March 28, 2002, due to a reduction in force, see Defendant's response to Plaintiff's Charge of Discrimination, disclosed by Plaintiff in her Initial Disclosure Statement and Bates labeled EEOC 100-106 See DRMS Exhibit 3. 4. DSF ¶ 5 is clearly supported by the record and does not conflict with Mr.

Wenban's deposition testimony. In his deposition, Mr. Wenban testified that each employee was informed of the Company's plan and provided with their options, which included accepting a severance package as part of reduction in force or moving to Dallas. See DSF Exhibit 4, Deposition of Rick Wenban ("Wenban DP"), pp. 34:21-25; 35:1-25; 36:1-4. Mr. Wenban's Declaration further explains and clarifies his knowledge of the Company's
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Exhibit 1 to this Response contains a few additional pages of Plaintiff's deposition transcript that inadvertently were omitted from the exhibit to DSF containing excerpts from Plaintiff's deposition transcript. Like the other exhibits attached to this Response, these pages support Defendant's MSJ and are incorporated into Defendant's MSJ by this reference.

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

reasons for the reduction in force.

See DSF Exhibit 3, Declaration of Rick Wenban

("Wenban DEC") ¶¶ 4-5. Even Ms. Alms testified she was told that everyone's position in Scottsdale was being eliminated. See DRMS Exhibit 1, Alms DP, pp. 101-103. Importantly, Mr. Wenban does have personal knowledge about the reduction in force because he testified that his employment with Defendant ended because of the reduction in force. See DRMS Exhibit 4, additional page from Wenban DP, p. 11:12-22. Moreover, Defendant objects to Plaintiff's attempted incorporation of her Separate Statement of Facts ¶¶ 19-22 as support for her Motion to Strike DSF ¶ 5 on the grounds that the evidence upon which Plaintiff relies is taken out of context and does not support the factual assertion made therein. 5. DSF ¶ 6 is clearly supported by the record and does not conflict with Mr.

Wenban's deposition testimony. In his deposition, Mr. Wenban testified that each employee was informed of the Company's plan and provided with their options, which included accepting a severance package as part of reduction in force or moving to Dallas. See DSF Exhibit 4, Wenban DP, pp. 34:21-25; 35:1-25; 36:1-4. Mr. Wenban's Declaration further explains and clarifies his knowledge of the Company's reasons for the reduction in force. See DSF Exhibit 3, Wenban DEC ¶¶ 4-5. Even Ms. Alms testified that everyone's position in Scottsdale was being eliminated. See DRMS Exhibit 1, Alms DP, pp. 101-103.

Importantly, Mr. Wenban does have personal knowledge of the reduction in force because he testified that his own employment with Defendant ended as part of the same reduction in force. See DRMS Exhibit 4, Wenban DP, p. 11:12-22. Moreover, Defendant objects to Plaintiff's attempted incorporation of her Separate Statement of Facts ¶ 21 as support for her Motion to Strike DSF ¶ 6 on the grounds that the evidence upon which Plaintiff relies is taken out of context and does not support the factual assertion made therein. 6. DSF ¶ 7 is clearly supported by the record and does not conflict with Mr.

Wenban's deposition testimony. In his deposition, Mr. Wenban testified that each employee was informed of the Company's plan and provided with their options, which included accepting a severance package as part of reduction in force or moving to Dallas. See DSF Exhibit 4, Wenban DP, pp. 34:21-25; 35:1-25; 36:1-4. Mr. Wenban's Declaration further
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

explains and clarifies his knowledge of the Company's reasons for the reduction in force. See DSF Exhibit 3, Wenban DEC ¶¶ 4-5. Even Ms. Alms testified that everyone's position in Scottsdale was being eliminated. See DRMS Exhibit 1, Alms DP, pp. 101-103.

Importantly, Mr. Wenban does have personal knowledge of the reduction in force because he testified that his employment with Defendant as part of the same reduction in force. See DRMS Exhibit 4, Wenban DP, p. 11:12-22. Moreover, Defendant objects to Plaintiff's attempted incorporation of her Separate Statement of Facts ¶¶ 19 and 21 as support for her Motion to Strike DSF ¶ 7 on the grounds that the evidence upon which Plaintiff relies is taken out of context and does not support the factual assertion made therein. 7. DSF ¶ 16 is clearly supported by the record and should not be stricken. Both

Mr. Wenban and Plaintiff testified that all of the employees in the IS Department were encouraged to apply for the new, temporary Analyst position. See DRMS Exhibit 1, Alms DP, pp. 104-110; DSF Exhibit 3, Wenban DEC ¶ 12; DSF Exhibit 4, Wenban DP, p. 126:714. 8. DSF ¶ 17 is clearly supported by the record, however, due to typographical

error, the deposition citation provided in support of DSF ¶ 17 is incorrect. The correct citation is DRMS Exhibit 1, Alms DP, pp. 108-111. Plaintiff admitted she expressed interest in applying for the new IS Analyst position and submitted her application and an e-mail to Mr. Wenban outlining her qualifications. 9. DSF ¶18 is clearly supported by the record, however, due to a typographical

error, the deposition citation provided in support of DSF ¶ 18 is incorrect. The correct citation is DSF Exhibit 4, Wenban DP, pp. 70-72. 10. DSF ¶ 26 is clearly supported by the record citation and should not be stricken.

Mr. Wenban testified that he presented his final selection of employees for the two positions to Gina Wise and Rick Gounris and they supported his decision. See DSF Exhibit 4, Wenban DP, p. 167:14-17. 11. DSF ¶ 28 is clearly supported by the record and should not be stricken.

Defendant identified Rosetta Carr as being hired on November 23, 1998, as a Senior
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

Information Security Analyst in its Position Statement to the EEOC, that Plaintiff entered into the record by disclosing it in her Initial Disclosure Statement, Bates labeled EEOC 100106. See DRMS Exhibit 3. Defendant also disclosed Ms. Carr's date of hire in its Answers to Interrogatories, DSF Exhibit 2, no. 18. Defendant attached the New Hire Information of Ms. Carr to its Statement of Facts merely to clarify Ms. Carr's position and date of hire. 12. DSF ¶ 29 is clearly supported by the record and should not be stricken.

Defendant identified Rosetta Carr has being hired on November 23, 1998, as a Senior Information Security Analyst in its Position Statement to the EEOC (DRMS Exhibit 3), that Plaintiff entered into the record by disclosing it in her Initial Disclosure Statement, Bates labeled it as EEOC 100-106. See DRMS Exhibit 3. Defendant also disclosed Ms. Carr's date of hire in its Answers to Interrogatories, DSF Exhibit 2, no. 18. Defendant attached the New Hire Information of Ms. Carr to its statement of facts merely to clarify Ms. Carr's position and date of hire. 13. DSF ¶ 30 is clearly supported by the record and does not conflict with Mr.

Wenban's deposition testimony. Plaintiff mistakenly focuses on whether Mr. Wenban was involved in the decision not to replace Ms. Simonton in Scottsdale when she did not return to work following her maternity leave. In doing so, Plaintiff misses the point of DSF ¶ 30. The record clearly establishes Ms. Simonton did not return from maternity leave and the position was not filled in Scottsdale, but was moved to Dallas. See DSF Exhibit 3, Wenban DEC ¶ 17; DSF Exhibit 4, Wenban DP, p. 157:11-20. 14. DSF ¶ 34 is clearly supported by the record and should not be stricken. Again,

Plaintiff apparently misunderstands the fact statement made in DSF ¶ 34. According to Ms. Simonton's Application for Employment, Resume and New Hire Information attached as DSF Exhibit 6, she was hired by Defendant on or about November 30, 1998, to work in the IS Department. Thus, she worked for Defendant for 1 ½ years longer than Plaintiff.

Defendant disclosed this information in its Answers to Interrogatories (DSF Exhibit 2) and its response to Plaintiff's Charge of Discrimination (DRMS Exhibit 3). Moreover, Ms. Simonton stated in her Application that she received a college degree, namely a "BSBA in
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

CIS." See DSF Exhibit 6. Importantly, Plaintiff does not dispute that, unlike Ms. Simonton, Plaintiff does not have a college degree. 15. DSF ¶ 37 is clearly supported by the record, however, due to a typographical

error, the deposition citation provided in support of DSF ¶ 37 is incorrect. The correct citation to support DSF ¶ 37 is DSF Exhibit 4, Wenban DP, pp. 55:24-25: 56:1-25; 61:14-17. 16. DSF ¶ 38 is clearly supported by the record and should not be stricken. There

is admissible evidence concerning the reduction in force. In his deposition, Mr. Wenban testified that each employee was informed of the Company's reorganization plan and provided with their options, which included accepting a severance package as part of reduction in force or moving to Dallas. See DSF Exhibit 4, Wenban DP, pp. 34:21-25; 35:125; 36:1-4. Mr. Wenban's Declaration further explains and clarifies his knowledge of the Company's reasons for the reduction in force. See DSF Exhibit 3, Wenban DEC ¶¶ 4-5. Ms. Alms even testified she knew that everyone's position in Scottsdale was being eliminated and the Company was relocating the Department to Dallas. See DRMS Exhibit 1, Alms DP, pp. 101-103. Importantly, Mr. Wenban does have personal knowledge of the reduction in force because he testified his employment with Defendant ended because of the same reduction in force. See DRMS Exhibit 4, Wenban DP, p. 11:12-22. Moreover,

Defendant objects to Plaintiff's attempted incorporation of her Separate Statement of Facts ¶ 21 as support for her Motion to Strike DSF ¶ 38 on the grounds that the evidence upon which Plaintiff relies is taken out of context and does not support the factual assertion made therein. 17. DSF ¶ 39 is clearly supported by the record and should not be stricken. There

is admissible evidence that when Ms. Simonton did not return from maternity leave, her position was transferred to Dallas (see ¶ 13, above). There also is evidence that this position was always designed to be temporary in nature. It is entirely irrelevant who made the decision to move Ms. Simonton's position to Dallas; the undisputed fact is that the position was temporary and was relocated to Dallas. See DSF Exhibit 4, Wenban DP, pp. 157:21-25; 158:1-7; DSF Exhibit 3, Wenban DEC ¶ 17.

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

18.

DSF ¶ 43 is clearly supported by the record, however, due to a typographical

error, the deposition citation provided in support of DSF ¶ 43 is incorrect. The correct citation to support DSF ¶ 43 is DSF Exhibit 4, Wenban DP, pp. 36-37. 19. DSF ¶ 44 is clearly supported by the record, however, due to a typographical

error, the deposition citation provided in support of DSF ¶ 44 is incorrect. The correct citation to support DSF ¶ 44 is DSF Exhibit 4, Wenban DP, pp. 36-37; 163:18-25. 20. DSF ¶ 45 is clearly supported by the record, however, due to a typographical

error, the deposition citation provided in support of DSF ¶ 45 is incorrect. The correct citation to support DSF ¶ 37 is DSF Exhibit 4, Wenban DP, pp. 66-68. 21. DSF ¶ 56 is clearly supported by the record and should not be stricken. There

is admissible evidence that the EEOC did not interview Mr. Wenban or any other supervisor or manager from Defendant before it issued its determination incorrectly alleging Defendant discriminated against Plaintiff on the basis of her age, by "failing to select her for the position of Senior Information Security Analyst even though she had been the incumbent in the position" and "a younger, less qualified individual was selected." See DSF Exhibit 8, EEOC Determination. The EEOC file disclosed by Plaintiff with her Initial Disclosure Statement, Bates labeled EEOC 008-106, also shows the EEOC did not interview Mr. Wenban or any other manager. 22. DSF ¶ 57 is clearly supported by the record and should not be stricken. Mr.

Wenban testified he did not know how old Plaintiff was, however, he believed she was younger than him. See DSF Exhibit 4, Wenban DP, pp. 148-:25; 149:1-10. The fact is that Plaintiff's counsel failed to ask Mr. Wenban his age during his deposition. In any event, this is not a crucial issue in this case. III. CONCLUSION Defendant's Statement of Facts in support of its Motion for Summary Judgment is properly supported by the cited materials and the entire record before the Court. For the foregoing reasons, the Court should not strike any of the factual statements made by

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

Defendant in its Statement of Facts in support of its Motion for Summary Judgment, and Plaintiff's Motion to Strike should be denied in its entirety.

RESPECTFULLY SUBMITTED this 13th day of March 2006. s/ Steven G. Biddle Steven G. Biddle Christie L. Kriegsfeld LITTLER MENDELSON, P.C. Attorneys for Defendant I hereby certify that I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants, and mailed a copy of same to the following if non-registrants, this 13th day of March 2006: Michael R. Pruitt Jackson White 40 North Center, Suite 200 Mesa, AZ 85201 s/ ME Martin
Firmwide:80884942.1 038005.1020

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