Free Motion for Summary Judgment - District Court of Arizona - Arizona

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Rosval A. Patterson, SBN 018872 Patterson & Associates, P.L.L.C. 777 East Thomas Road, Suite 210 Phoenix, Arizona 85014 Tel.: (602) 462-1004 E-mail: [email protected] Attorneys for the Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Martha Slaughter-Payne, Plaintiff, vs. ANTHONY PRINCIPI, SEC DEPT. OF VETERANS AFFAIRS AGENCY, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV03-2300PHXROS UNDISPUTED STATEMENT OF FACTS FOR PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

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1.

Liz is an African American female. (See Complaint attached hereto as Exhibit 1; ¶ 1. See also Answer attached hereto as Exhibit 2; ¶ 1.)

2.

Liz is employed by the Veterans Affairs Medical Center (hereinafter "VAMC"). (See Complaint attached hereto as Exhibit 1; ¶ 8. See also Answer attached hereto as Exhibit 2; ¶ 8.)

3.

The VAMC is located in Phoenix, Arizona. (See Complaint attached hereto as Exhibit 1; ¶ 8. See also Answer attached hereto as Exhibit 2; ¶ 8.)

4.

On April 4, 1996, Liz was selected as the VAMC's Black Employment Program Manager (hereinafter "BEPM"). (See Memorandum dated April 4, 1996 attached hereto as Exhibit 3)

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5.
2 3

In October of 1996, about five (5) months after the said selection as BEPM, VAMC employees/superiors Richard Moore, the Information Resource Management Administrator, Stanley Skorniak, the Ambulatory Care

4

Administrator, Keith Piatt, the Associate Chief Of Staff for Ambulatory Care
5

Services, and James Owens, the Administrator of Environmental Management,
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authored a derogatory e-mail letter and left same on Liz's chair at work. (See
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E-mail attached hereto as Exhibit 4)
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6.
9 10

Several minority employees requested a meeting with Liz to discuss, and otherwise address the derogatory e-mail. (See Memorandum re: Response Regarding E-Mail dated March 12, 1997 attached hereto as Exhibit 5)

11

7.
12 13

This meeting was also to consider potential actions that these employees would expect the EEOPM to take against the authors. (See the Deposition of John Fears attached hereto as Exhibit 6; 126:17-20)

14

8.
15 16

During this meeting, Liz told the minority employees that she had requested that the said authors be compelled to write an apology letter that would be posted on the VAMC bulletin boards and also sent to all employees. (See

17

Memorandum re: Response Regarding E-Mail dated March 12, 1997
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attached hereto as Exhibit 5)
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9.
20 21

On March 24, 1997 Liz was informed by John R. Fears, the Medical Center Director that the VAMC had refused to apologize, or compel any such apologies or apology letters from the said authors, and no further action would

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be taken against the said authors. (See Memorandum re: The E-Mail Issue
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dated March 24, 1997 attached hereto as Exhibit 9)
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10.
2 3

On February 8, 1997, an article regarding the VAMC author's derogatory email appeared in the Arizona Republic. (See the article attached hereto as Exhibit 7)

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11.
5 6

Minority employees continued to complain about the VAMC's evidenced indifference and lack of concern shown toward the authors of the derogatory email. (See Memorandum and Site Visit Report attached hereto as Exhibit

7

8.)
8

12.
9 10

Minority employees also complained regarding the fact that the authors were not disciplined harshly enough. (See Memorandum and Site Visit Report attached hereto as Exhibit 8.)

11

13.
12 13

Liz took hers and the minority employees' issues and concerns regarding the failure to discipline the derogatory e-mail authors to the Director and continued to press for harsher discipline against the said authors. (See Memorandum

14

re: Response Regarding E-Mail dated March 12, 1997 attached hereto as
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Exhibit 5)
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14.
17 18

While the Director claimed to have taken appropriate action against the authors of the e-mail, he refused to take further action. No apologies were given to the minority employees. (See the Memorandum re: email dated March 24,

19

1997 attached hereto as Exhibit 9)
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15.
21 22

On February 18, 1997, a letter was distributed to certain upper management personnel congratulating them for placing women into positions of authority "and therefore keeping Blacks and other minorities at the bottom where they

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belong." (See the Deposition of John Fears attached hereto as Exhibit 6;
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127:19 ­ 128:19. Also see the Letter attached hereto as Exhibit 10)
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16.
2 3

In July of 1997, Liz was removed from her BEPM position. (See the Deposition of John Fears attached hereto as Exhibit 6; 77:24 ­ 78:1)

17.
4 5

On July 24, 1997, the Black Employment Program (BEP) held a meeting wherein it was agreed those members would appropriately petition to have Liz reinstated as manager for the BEP. (See Letter and Petitions attached

6

hereto as Exhibit 11)
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18.
8 9

On August 27, 1997, the resulting petition was sent to the Director requesting that Liz be immediately reinstated as the manager for the BEP. (See Letter and Petitions attached hereto as Exhibit 11)

10

19.
11 12

After receiving two such petitions requesting Liz reinstatement, the Director requested a site visit to review the VAMC's Equal Employment Opportunity programs. (See Memorandum and Site Visit Report attached hereto as

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Exhibit 8.)
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20.
15 16

The requested site visit was granted and thereafter actually occurred, taking place September 15-19 of 1997. (See Defendant's answers to Plaintiff's Interrogatories attached hereto as Exhibit 12; Interrogatory number 3)

17

21.
18 19

A site visit report was completed, and that report expressed certain conclusions and recommendations. (See Memorandum and Site Visit Report attached hereto as Exhibit 8.)

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22.
21 22

In the site visit report it stated: "Effective EEO programs management is not apparent at the medical center." (See the Deposition of John Fears attached hereto as Exhibit 6; 101:19 ­ 102:4. Also see Memorandum and Site Visit

23

Report attached hereto as Exhibit 8.)
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23.
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In the site visit report it stated: "The representation of African Americans in pay grades GS-9 and above is less than their representation in the medical

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center's workforce..." (See the Deposition of John Fears attached hereto as
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Exhibit 6; 102:5 ­12. See also the Site Visit Report attached hereto as
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Exhibit 8)
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24.
5 6

In the site visit report it stated: "The decision to remove the Liz as the black employment program manager is flawed." (See the Site Visit Report attached hereto as Exhibit 8)

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25.
8 9

Throughout Liz's career with the VA, she has applied numerous times for a position as a computer specialist but has never been selected. (See Document Bates Labeled 1ST.SET-INTERROGATORIES #012-000001attached

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hereto as Exhibit 13)
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26.
12 13

On November 4, 1997, Liz applied for a Computer Specialist GS 9 position. (See Memorandum dated November 6, 1997 attached hereto as Exhibit 14)

27.
14 15

Rafael Martinez is the VAMC Human Resource Officer. (See Arbitration testimony of Rafael Martinez dated July 26, 2002 Attached as Exhibit 15; 191:16-18)

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28.
17 18

Mr. Martinez requested that Liz's certification for the position first be sent to him, prior to being sent to the VAMC official charged with hiring, selecting and filling this position. (See Post-it note attached hereto as Exhibit 16)

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29.
20 21

After Human Resources received Liz's certification, the certification was marked and put in the file marked as follows: "Candidates did not meet needs". (See Memorandum dated November 6, 1997 attached hereto as Exhibit 14)

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30.
23 24

Liz did meet and possess the qualifications necessary to apply for and hold the Computer Specialist GS9 position prior to Human Resources' involvement. (See the Deposition of John Fears attached hereto as Exhibit 6; 97:18 ­

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98:2. Also see Microsoft Certified Professional Certificate attached hereto

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as Exhibit 17. See also the Affidavit of Donna Tyson from EEO case 982

3542 attached hereto as Exhibit 18; 27:1-18)
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31.
4 5

No one was selected at this time for the position. (See Memorandum dated November 6, 1997 attached hereto as Exhibit 14)

32.
6 7

On February 10, 1998, Defendants adopted John R. Fears recommendations encompassed within a "Multi-Year Affirmative Employment Program" (hereinafter "The Plan"). (See the Deposition of John Fears attached hereto

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as Exhibit 6; 84:5 ­ 86:5. Also see the Multi-Year Affirmative
9

Employment Program attached hereto as Exhibit 19)
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33.
11 12

The Plan's discussed analysis identified and evidenced a "Conspicuous Absence" of Black Females in Professional Occupations for Computer Services. (See the Deposition of John Fears attached hereto as Exhibit 6;

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86:16 ­ 87:18. See also the Multi-Year Affirmative Employment Program
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attached hereto as Exhibit 19, pg. 39)
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34.
16 17

A Conspicuous Absence is present when the work force representation is 25% or less of the appropriate civilian labor force representation. (See the MultiYear Affirmative Employment Program attached hereto as Exhibit 19;

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page 15)
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35.
20 21

The Plan had a Numerical objective to hire 1 Black female in the Computer Specialist field for each year of the Plan. (See the Deposition of John Fears attached hereto as Exhibit 6; 95:13-21. Also see the Multi-Year

22

Affirmative Employment Program attached hereto as Exhibit 19; pg. 39)
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36.
24 25

On March 10, 1998, Liz applied for the Computer Specialist GS 9 position. (See Memorandum dated March 25, 1998 attached hereto as Exhibit 20)

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37.
2 3

Liz was qualified for this position. (See Memorandum dated March 25, 1998 attached hereto as Exhibit 20)

38.
4 5

Instead of Liz, Linda Edwards, a white female, was selected for the position. (See Memorandum dated March 25, 1998 attached hereto as Exhibit 20)

39.
6 7

Ms. Edwards was not qualified to fill that position as she had "no specialized expertise in computers such as software or hardware setup and no instruction/training background". (See Record of Minimum Qualification

8

Determination attached hereto as Exhibit 21)
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40.
10 11

On or about April 1998, Donna Tyson ("Ms. Tyson") recommended Liz for computer specialist GS-7/9/11/12, PVA number 98-060B1 as one of three candidates. (See Affidavit of Donna Tyson from EEO case 98-3542

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attached hereto as Exhibit 18; 3:1 ­ 5:11)
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41.
14 15

Liz was a prime candidate and Ms. Tyson thought she would have been a very good person for the position. (See Affidavit of Donna Tyson from EEO case 98-3542 attached hereto as Exhibit 18; 26:23-25)

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42.
17 18

Ms. Tyson and Mr. Moore spoke at length regarding Liz's qualifications. (See Affidavit of Donna Tyson from EEO case 98-3542 attached hereto as Exhibit 18;13:17 ­ 14:3)

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43.
20 21

Mr. Moore tried very strongly to get Ms. Tyson to hire Rhonda Hill ("Ms. Hill"), a white female with secretarial skills. (See Affidavit of Donna Tyson from EEO case 98-3542 attached hereto as Exhibit 18; 14:4 - 7)

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44.
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Mr. Moore wanted to hire Ms. Hill in case he needed someone who could perform secretarial duties. (See Affidavit of Donna Tyson from EEO case 98-3542 attached hereto as Exhibit 18;14:8 - 15)

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45.
2 3

Ms. Tyson stated to Mr. Moore that Liz was the better candidate due to her strong computer skills. (See Affidavit of Donna Tyson from EEO case 983542 attached hereto as Exhibit 18; 14:16 - 23)

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46.
5 6

Ms. Tyson stated that "Liz has taken initiative, spent her own money to go get training. (See Affidavit of Donna Tyson from EEO case 98-3542 attached hereto as Exhibit 18; 14:24 ­ 15:5)

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47.
8 9

Ms. Tyson felt Liz was a good candidate for computer specialist, not only for her initiative but that she was always taking classes and trying to improve her skills. Whenever the personnel department needed help, Liz was great to

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assist. "She showed motivation and assistance. (See Affidavit of Donna
11

Tyson from EEO case 98-3542 attached hereto as Exhibit 18; 24:21 ­ 25:4)
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48.
13 14

Ms. Hills computer skills were not equivalent to Liz's, in fact, Ms. Tyson stated "Rhonda hardly knew how to turn on the computer". (See Affidavit of Donna Tyson from EEO case 98-3542 attached hereto as Exhibit 18; 15:17

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- 24)
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49.
17 18

Ms. Tyson felt that Liz was discriminated against by Mr. Moore for prior EEO activity, her position as black program manager, her race and in relation to the adverse email. (See Affidavit of Donna Tyson from EEO case 98-3542

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attached hereto as Exhibit 18; 18:17 ­ 21:6)
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50.
21 22

Instead of Liz, Mr. Moore selected a white male. (See List of Selections Bates Labeled Response ­ Request for Production # 3 Attached hereto as Exhibit 22)

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51.
24 25

The Plan, prior to this instance, had mandated that a black female be hired into this particular position. (See the Deposition of John Fears attached hereto as Exhibit 6; pg 112:24 ­ 113:10)

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52.
2 3

On or about June 1998, Liz applied again for the Computer Specialist position, GS-334-5/7/9; PVA#98-114B1. (See Memorandum dated June 24, 1998 attached hereto as Exhibit 23)

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53.
5 6

Liz was qualified to hold the position. (See Memorandum dated June 24, 1998 attached hereto as Exhibit 23)

54.
7 8

Instead of Liz, Mr. Moore selected Wayne Bivens, a file clerk. (See Memorandum dated June 24, 1998 attached hereto as Exhibit 23)

55.
9 10

Mr. Bivens is a white male. (See Summary of Merit Promotion Activities Bates Labeled Interrogatory #004-000300 attached hereto as Exhibit 24)

56.
11 12

Mr. Bivens was rated at a GS-7 (See List of Selections attached hereto as Exhibit 22)

57.
13 14

Defendants were clearly aware that there was a "Conspicuous Absence" of Black Females as per The Plan. (See the Deposition of John Fears attached hereto as Exhibit 6; 110:15 ­ 112:4)

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58.
16 17

On or about September of 1996, Liz paid Ten Thousand Dollars ($10,000.00) to become a Microsoft Certified Professional. (MCP). (See Affidavit of Donna Tyson from EEO case 98-3542 attached hereto as Exhibit 18; 27:1-18 Also

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see Microsoft Certified Professional Certificate attached hereto as Exhibit
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17)
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59.
21 22

Liz completed the course on or about August of 1998. (See the Deposition of John Fears attached hereto as Exhibit 6; 97:18 ­ 98:2. Also see Microsoft Certified Professional Certificate attached hereto as Exhibit 17)

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60.
24 25

Liz put her MCP certification in her Official Personal Folder (to assure that professional certification was noticed). (See Microsoft Certified Professional Certificate attached hereto as Exhibit 17)

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61.
2 3

On October 8, 1998, Liz filed an Equal Employment Opportunity ("EEO") non-selection and retaliation complaint (hereinafter referred to as "Complaint") (See Complaint attached hereto as Exhibit 1; ¶ 10. See also Answer

4

attached hereto as Exhibit 2; ¶ 10)
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62.
6 7

On July 14, 1999, the EEO determined that Liz had been non-selected and retaliated against. (See EEO Decision attached hereto as Exhibit 25)

63.
8 9

May 26, 1999, Liz filed an Equal Employment Opportunity ("EEO) complaint for non-selection and retaliation specifically against Richard Moore. (See Complaint attached hereto as Exhibit 1; ¶ 11. See also Answer attached

10

hereto as Exhibit 2; ¶ 11.)
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64.
12 13

On July 15, 1999, Liz filed an amended complaint with the EEO for nonselection and retaliation against Richard Moore. (See Complaint attached hereto as Exhibit 1; ¶ 11. See also Answer attached hereto as Exhibit 2; ¶

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11.)
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65.
16 17

On or about August 1999 Liz applied for Computer Specialist GS-334-5/7/9; PVA#99-032B1. (See Memorandum dated August 25, 1999 attached hereto as Exhibit 26)

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66.
19 20

Liz was qualified for the position. (See Memorandum dated August 25, 1999 attached hereto as Exhibit 26)

67.
21 22

Instead of Liz, Mr. Moore selected John Legendre, a housekeeper. (See Memorandum dated August 25, 1999 attached hereto as Exhibit 26)

68.
23 24

Mr. Legendre is a white male. (See Summary of Merit Promotion Activities Bates Labeled Interrogatory #004-000300 attached hereto as Exhibit 24)

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69.
2 3

Mr. Legendre was rated as a GS-5. (See List of Selection attached hereto as Exhibit 22)

70.
4 5

In October of 1999, Liz joined the AFGE union and became the Fair Practice Labor Coordinator. (See Complaint attached hereto as Exhibit 1; ¶ 15. See also Answer attached hereto as Exhibit 2; ¶ 15)

6

71.
7 8

In that capacity, Liz represented approximately twelve (12) employees having discrimination claims against the Defendants. (See the Arbitration Testimony of Randy Brumm of July 25, 2002 attached hereto as Exhibit 27; 116:22 ­

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117:14)
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72.
11 12

Additionally, in May of 1999, Liz solicited the Arizona State NAACP's help in trying to resolve the VAMC's discriminatory and oppressive practices. (See Arizona Informant Articles attached hereto as Exhibit 28)

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73.
14 15

On May 26, 1999, The NAACP conducted an investigation on behalf of Liz. (See Arizona Informant Article attached hereto as Exhibit 28)

74.
16 17

On January 17, 2000, the U.S. Equal Employment Opportunity Commission (hereinafter referred to as "EEOC"), Washington, D.C., forwarded to the VAMC a "NOTICE TO EMPLOYEES POSTED BY ORDER OF THE

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the
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United State Government" (said document being hereinafter referred to as
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"EEOC Notice") (See the Deposition of John Fears attached hereto as
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Exhibit 6; 130:7-23 Also see EEO Notice attached hereto as Exhibit 29)
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75.
23 24

The notice was to be "posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated 1/27/00 which found that a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

25

s2000e et seq. has occurred at (the VAMC) facility." (See the Deposition of

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John Fears attached hereto as Exhibit 6; 130:15 ­ 18. Also see EEO
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Notice attached hereto as Exhibit 29)
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76.
4 5

Said EEOC Notice, which set out VAMC discriminatory conduct, among other things, was acknowledged as received by the VAMC by "John R. Fears", whose signature is affixed thereon at the bottom of the document above the

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following entries:"Date Posted: March 17, 2000""Posting Expires: May 17,
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2000""29 C.F.R. Part 1614". (See EEO Notice attached hereto as Exhibit
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29)
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77.
10 11

In Liz's new position as the Fair Practice Labor Coordinator, she became aware of other African-American employees that were suffering from the same and/or similar discriminatory practices at the VAMC. (See the Arbitration

12

Testimony of Randy Brumm of July 25, 2002 attached hereto as Exhibit
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27; 116:22 ­ 117:14)
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78.
15 16

So, as a last resort effort to halt the observed discriminatory and oppressive VAMC practices, Liz helped organize a series of informational protests. (See the Deposition of John Fears attached hereto as Exhibit 6; 121:16-20)

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79.
18 19

The first protest was held May 19, 2000. (See Arizona Informant Newspaper article dated May 24, 2000 attached hereto as Exhibit 30)

80.
20 21

The protesters marched in front of the VAMC for four (4) hours demanding an end to Defendants' discriminatory employment and promotion practices. (See Arizona Informant Newspaper article dated May 24, 2000 attached hereto

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as Exhibit 30)
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81.
24 25

Defendants received a letter from the Director requesting that the two parties sit down and discuss their issues and differences. (See the Deposition of John

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Fears attached hereto as Exhibit 6; 122:8-12. See also Letter dated
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September 25, 2000 attached hereto as Exhibit 31)
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82.
4 5

Liz scheduled another protest for October 6, 2000. (See the Deposition of John Fears Attached hereto as Exhibit 6; 122:3-14. See also Memorandum dated September 25, 2000 attached hereto as Exhibit 32)

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83.
7 8

The protesters again marched in front of the VAMC for four (4) hours demanding an end to Defendants' discriminatory promotion practices. (See the Deposition of John Fears Attached hereto as Exhibit 6; 122:3-14. See also

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Memorandum dated September 25, 2000 attached hereto as Exhibit 32)
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84.
11 12

On or about November 13th, 2000, Liz applied for the Computer Specialist GS334-5/7/9; PVA#2000-279B1. (See Memorandum dated November 13th, 2000 attached hereto as Exhibit 33)

13

85.
14 15

Liz was qualified to hold and be employed within this position. (See Merit Promotion Certificate Bates Labeled `INTERROGATORY #004-000261, Attached hereto as Exhibit 34)

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86.
17 18

Instead of Liz, Mr. Moore selected Robert Pyle. (See Complaint attached hereto as Exhibit 1; ¶ 22. See also Answer attached hereto as Exhibit 2; ¶ 22.)

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87.
20 21

Mr. Pyle is a white male. (See Summary of Merit Promotion Activities Bates Labeled Interrogatory #004-000300 attached hereto as Exhibit 24)

88.
22 23

Liz was more qualified than the person actually selected to fill the said position, Mr. Pyle as she was rated a GS-9 and Mr. Pyle was rated a GS-6. (See Merit Promotion Certificate Bates Labeled `INTERROGATORY

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#004-000261, Attached hereto as Exhibit 34)
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89.
2 3

Robert Pyle only possessed six (6) credit hours of computer education. (See Optional Application for Federal Employment of Robert Pyle, page 2 Bates Labeled `1st.SET-RFP #004-000077 attached hereto as Exhibit 35)

4

90.
5 6

Liz held an MCP, among other credentials. (See Microsoft Certified Professional Certificate attached hereto as Exhibit 17)

91.
7 8

Defendants have not hired one, single Black Female in the Professional Occupation of Administrative Computer Services at any time since The Plan. (See the Deposition of John Fears attached hereto as Exhibit 6; 110:15 ­

9

113:16)
10

92.
11 12

The Plan called for at least one (1) Black employees per year to be hired from the date thereof, has been in effect. (See the Multi-Year Affirmative Employment Program attached hereto as Exhibit 19; pg. 39)

13

93.
14 15

Liz in conjunction with AFGE decided to organize another informational protest. (See Memorandum from AFGE dated July 27, 2001 attached hereto as Exhibit 36)

16

94.
17 18

On August 31, 2001, a protest was held. (See Memorandum from AFGE dated July 27, 2001 attached hereto as Exhibit 36)

95.
19 20

Over 300 VAMC employees marched in protest to the VAMC's discriminatory promotion practices. (See Memorandum from AFGE dated July 27, 2001 attached hereto as Exhibit 36)

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96.
22 23

On November 19, 2001, Defendants adopted the recommendations of an "Annual Affirmative Employment Program Accomplishment Report" (such report being hereinafter referred to as "The Report"). (See the Deposition of

24

John Fears attached hereto as Exhibit 6; 108:12-15)
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97.
2 3

The Report's analysis revealed that there was a "Conspicuous Absence" of Black Females in the position of Computer Specialist. (See Annual Report as Exhibit 10 in the Deposition of John Fears attached hereto as Exhibit 37;

4

pg. 46)
5

98.
6 7

The Report had a Numerical Objective to hire one (1) African American female for each year of The Plan in the Computer Services occupation. (See Report as Exhibit 10 in the Deposition of John Fears attached hereto as

8

Exhibit 37; pg. 65)
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99.
10 11

On September 20, 2001, Liz received a Voluntary Separation Incentive Payment letter ("VSIP").(See Complaint attached hereto as Exhibit 1; ¶ 31 See also Answer attached hereto as Exhibit 2; ¶ 31)

12

100.
13 14

Of the sixteen (16) employees that received the letter, eleven (11) employees within the Mental Health Behavioral Science Services declined such incentive letter offers. (See Defendants answers to Liz's interrogatories attached

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hereto as Exhibit 12; interrogatory numbers 18 (f) and 19. Also see the
16

Arbitration Testimony of Laurel Van Haldren December 5, 2002 Attached
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hereto as Exhibit 38; 234:2-5)
18

101.
19 20

Liz refused the VSIP. (See Defendants response to Plaintiff's Request for Production attached hereto as Exhibit 39; Request number 6. See also Defendants answers to Plaintiff's Interrogatories attached hereto as

21

Exhibit 12; Interrogatory #18 (f) and 19)
22

102.
23 24

Defendants decided, on October 15, 2001, to conduct a one employee Reduction In Force ("RIF"). (See Complaint attached hereto as Exhibit 1; ¶ 34 and 38. See also Answer attached hereto as Exhibit 2; ¶ 34 and 38.

25

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Also see Laurel Van Haldrens Arbitration Testimony of July 25, 2002
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attached hereto as Exhibit 40; 91:15-22)
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103.
4 5

On October 17, 2001, on behalf of the Liz, AFGE requested the right to negotiate the RIF (See the Arbitration Testimony of Rafael Martinez on July 26, 2002 attached hereto as Exhibit 15; 198:8 ­ 199:6)

6

104.
7 8

Defendants did not have RIF authority to reduce Liz's position. (See Complaint attached hereto as Exhibit 1; ¶ 35. See also Answer attached hereto as Exhibit 2; ¶ 35.)

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105.
10 11

Under VHA Directive 96-005, RIF actions adversely affecting employees in centralized positions must be approved by Veterans Health Administration (VHA) Headquarters. (See Defendants response to Plaintiff's Request for

12

Production attached hereto as Exhibit 39; Request number 8. Also see
13

VHA Directive 96-005, Bates Labeled 1st.SET-RFP #008-000003 attached
14

hereto as Exhibit 41)
15

106.
16 17

On October 22, 2001, five days after they delivered the RIF notice to Liz VAMC requested authority for the RIF. (See Deposition of John Fears attached hereto as Exhibit 6; 57:3-8)

18

107.
19 20

But on December 3, 2001, the VHA denied VAMC RIF Authority. (See Deposition of John Fears attached hereto as Exhibit 6; 58:17 ­ 59:9)

108.
21 22

Liz was involuntarily put into her current position of Human Resources Assistant. (See Memorandum dated September 26, 2001 attached hereto as Exhibit 42)

23

109.
24 25

The VAMC has approximately 2000 positions at the VA and although a variety of positions were available to be filled, Liz was only offered one position. (See

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Arbitration Testimony of Rafael Martinez dated December 5, 2002
2

attached hereto as Exhibit 43; 341:1 ­ 12)
3

110.
4 5

Liz's supervisor Rafael Martinez ("Mr. Martinez") stated the Liz, could only have applied for jobs at a lower grade. (See Arbitration Testimony of Rafael Martinez dated December 5, 2002 attached hereto as Exhibit 43; 341:6 -

6

12)
7

111.
8 9

Contrary to good performance awards and evaluations Mr. Martinez felt Liz was only qualified for housekeeping aid jobs; food service work; and secretarial work. (See Arbitration Testimony of Rafael Martinez dated

10

December 5, 2002 attached hereto as Exhibit 43; 341:11-14)
11

112.
12 13

At the time Liz was moved to her current position, she became ineligible to represent fellow employees in EEO cases. (See the Arbitration Testimony of Randy Brumm of July 25, 2002 attached hereto as Exhibit 27; 159:4 - 10)

14

113.
15 16

Excluding Liz from engaging in protected activities work to Defendants advantage as Liz was a strong advocate for minorities and employees of VAMC. (See the Arbitration Testimony of Randy Brumm of July 25, 2002

17

attached hereto as Exhibit 27; 159:11 ­ 18)
18

114.
19 20

Liz can no longer engaged in protected activities which affect, not only Liz, but the entire bargaining unit. (See the Arbitration Testimony of Randy Brumm of July 25, 2002 attached hereto as Exhibit 27; 132:21 - 23)

21

115.
22 23

Liz was forced into her current position which was previously abolished. (See the Arbitration Testimony of Randy Brumm of July 25, 2002 attached hereto as Exhibit 27; 151:12 ­ 152:14)

24

116.
25

The former employee which had Liz's job received a buyout. Under VA regulation the only reason to give an employee a buyout is the abolish the

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position. (See the Arbitration Testimony of Randy Brumm of July 25, 2002
2

attached hereto as Exhibit 27; 151:25 ­ 152:19. Also see the Arbitration
3

testimony of John Fears dated December 11, 2002 attached hereto as
4

Exhibit 44; 426:18 ­ 25. Also see Email regarding VHA restructuring
5

attached hereto as Exhibit 47)
6

117.
7 8

The CWTIT Program was not dissolved until on or about July 2002. (See the Arbitration Testimony of Randy Brumm of July 25, 2002 attached hereto as Exhibit 28; 111:19 ­ 112:1. Also see the Arbitration Testimony of Carol

9

Gray of July 25, 2002 attached hereto as Exhibit 45; 177:4-15)
10

118.
11 12

There is an employee that has been performing Liz's job description since the VSIP, and the function of the Lizs position continues to be performed to this date. (See E-mail to Jo Jackson attached hereto as Exhibit 46)

13

119.
14 15

Liz was given a number of awards including time off awards, special contribution awards and promotion awards. (See Arbitration Testimony of Rafael Martinez dated December 5, 2002 attached hereto as Exhibit 43;

16

327:23 ­ 328:11)
17

120.
18 19

In Raphael Martinez's own words Liz was a good employee. Her awards were based on her performance and contributions. (See Arbitration Testimony of Rafael Martinez dated December 5, 2002 attached hereto as

20

Exhibit 43; 344:1 - 3)
21 22 23 24 25

...... ...... ...... ...... ......

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Dated this 30th day of May, 2006 Patterson & Associates, P.L.L.C. _______________________ Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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

I hereby certify that on the 30th day of May, 2006, I electronically transmitted that attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing for the following CM/ECF registrants: [email protected] [email protected] and a copy of this document was provided by United States mail to: The Honorable Judge Roslyn Silver United States District Court 401 West Washington Courtroom 604 Phoenix, AZ 85003

By

s/Stephanie Coulter

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