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] Attorney 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.: CV03-2300 PHX ROS ) ) ) ) PLAINTIFF'S MOTION FOR ) SUMMARY JUDGMENT ) ) ) )

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Martha Elizabeth Slaughter-Payne (hereinafter referred to as "Liz") submits
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her Motion for Summary Judgment on her Non-Promotion and Retaliation claims. This motion is supported by the following Memorandum of Points and Authorities filed concurrently herewith.

DATED this 30th day of May, 2006 Patterson & Associates, P.L.L.C.

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s/ Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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MEMORANDUM OF POINTS AND AUTHORTIES I. FACTS:

Liz is a Black female employed by the Veterans Affairs Medical Center
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("VAMC") located in Phoenix, Arizona. (SOF ¶ 1 - 3) On April 4, 1996, Liz was
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selected as the VAMC's Black Employment Program Manager ("BEPM"). (SOF ¶ 4). In
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October of 1996, about five (5) months after the selection as BEPM, VAMC
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employees/superiors Richard Moore ("Mr. Moore"), the Information Resource
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Management Administrator, Stanley Skorniak ("Mr. Skorniak"), the Ambulatory Care
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Administrator, Keith Piatt ("Mr. Piatt"), the Associate Chief Of Staff for Ambulatory
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Care Services, and James Owens ("Mr. Owens"), the Administrator of Environmental
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Management, authored a derogatory e-mail letter which was left on Liz's chair at work.
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(SOF ¶ 5) Hearing about the email, several minority employees requested a meeting with
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Liz to discuss, and otherwise address, the derogatory e-mail, and consider potential
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actions that these employees would expect the VAMC to take against the authors. (SOF ¶
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6 - 7) During this meeting, Liz told the minority employees that she had requested that
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the said authors be compelled to write an apology letter that would be posted on the
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VAMC bulletin boards and also be sent to all employees. (SOF ¶ 8)
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However, a short

time after the minority employee's effort, Liz was informed by John R. Fears, the Medical Center Director ("Director") that the VAMC had refused to apologize, or compel
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any such apologies or apology letters from the authors, and no further action would be
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taken against the authors. (SOF ¶ 9)
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On February 8, 1997, an article regarding the VAMC author's derogatory e-mail
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appeared in the Arizona Republic. (SOF ¶ 10) Minority employees continued to
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complain about the VAMC's evidenced indifference and lack of concern shown toward
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the authors of the derogatory e-mail, and the fact that the authors were not disciplined
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harshly enough. (SOF ¶ 11 - 12) Consequently, 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 disciplinary action against the said authors. (SOF ¶ 13) Still, no further action was taken against the authors. (SOF ¶ 14) On February 18, 1997, a letter was distributed to upper management personnel congratulating them for placing women into positions of authority "and therefore keeping Blacks and other minorities at the bottom where they belong." (SOF ¶ 15) In July of 1997, Liz was removed from the BEPM position. (SOF ¶ 16) 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. (SOF ¶ 17) On August 27, 1997, the resulting petition was sent to the Director requesting that Liz be immediately reinstated as the manager for the BEP. (SOF ¶ 18) After receiving two such petitions requesting Liz reinstatement, the Director requested a site visit to review the VAMC's Equal Employment Opportunity programs. (SOF ¶ 19) The requested site visit was granted and thereafter actually occurred, taking place September 15-19 of 1997. (SOF ¶ 20) A site visit report was completed by the VAMC's EEO office on November 21, 1997, and that report expressed certain conclusions and recommendations, including the following: (1) "Effective EEO programs management is not apparent at the medical center." (2) "The representation of African Americans in pay grades GS-9 and above is less than their representation in the medical center's workforce..." and (3) "The decision to remove Liz as the black employment program manager is flawed." (SOF ¶ 21 - 24) However, the VAMC did not heed, implement or to any degree employ the recommendations of the report. (SOF ¶ 21 ­ 24)

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Throughout Liz's career with the VA, she has applied numerous times for a position as a computer specialist but has never been selected. (SOF ¶ 25) A few instances among all the applications stand out specifically. On November 4, 1997, Liz applied for a Computer Specialist GS 9 position. (SOF ¶ 26) Rafael Martinez, the VAMC Human Resource Officer, 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. (SOF ¶ 27 - 28) Rafael Martinez, then marked Liz's certification as follows: "Candidate did not meet needs". (SOF ¶ 29) No one was selected for the position; yet Liz was in fact qualified and certified to hold the position. (SOF ¶ 29 - 31) On February 10, 1998, Defendants adopted John R. Fears recommendations encompassed within a "Multi-Year Affirmative Employment Program" (hereinafter "The Plan").1 (SOF ¶ 32) The Plan's discussed analysis identified and evidenced a "Conspicuous Absence" of Black Females in Professional Occupations like Computer Services. (SOF ¶ 33) A Conspicuous Absence is present when the work force representation is 25% or less of the appropriate civilian labor force representation. The Plan was to be in effect for multiple years. (SOF ¶ 34) The plan had a Numerical objective to hire 1 black female for each year of the plan in Computer Services. (SOF ¶ 35) On March 10, 1998, Liz applied for the Computer Specialist GS 9 position. (SOF ¶ 36) Liz was qualified for this position; yet Liz was not selected. (SOF ¶ 37 - 38) Linda Edwards, a white female, was selected for the position, even though she was in fact not qualified to fill that position. (SOF ¶ 38 - 39) The Defendants were clearly aware

In Plaintiff's Interrogatory #7 (Exhibit 12) the defendant was asked if "During the period since May 1, 1994 through the date of response, have any affirmative action plans, upward mobility plans or similar policies existed?" Defendant answered "No." Exhibit 19 clearly shows there were affirmative action policies in place at the VAMC. 5

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that there was a "Conspicuous Absence" of Black Females, as reported in The Plan. (SOF ¶ 59) In hiring Ms. Edwards, a nonqualified, white female, and failing to hire Liz, an amply qualified Black Female, Defendants completely ignored The Plan that was adopted only Twenty (20) days before. (SOF ¶ 32- 35). 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. (SOF ¶ 40) Ms. Tyson thought Liz was a prime candidate and that she would have been a very good person for the position. (SOF ¶ 41) Ms. Tyson and Mr. Moore spoke at length regarding Liz's qualifications. (SOF ¶ 42) Mr. Moore tried very strongly to get Ms. Tyson to hire Rhonda Hill ("Ms. Hill"), a white female with secretarial skills. (SOF ¶ 43) Mr. Moore wanted to hire Ms. Hill in case he needed someone who could perform secretarial duties. (SOF ¶ 44) Ms. Tyson stated to Mr. Moore that Liz was the better candidate due to her strong computer skills and that "Liz has taken initiative, spent her own money to go get training". 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. (SOF ¶ 45 - 47) For instance, whenever the personnel department needed help, Liz was always willing to assist. (SOF ¶ 47) As Ms. Tyson explained, "She showed motivation and assistance". (SOF ¶ 47) Ms. Tyson felt that Ms. Hills computer skills were not equivalent to Liz's" (SOF ¶ 48) In fact, Ms. Tyson went on to state "Rhonda hardly knew how to turn on the computer". (SOF ¶ 48) 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. (SOF ¶ 49) Although Mr. Moore did not select Ms. Hill, he also did not select Liz. He chose to select a white male. (SOF ¶ 50) Further, it is noteworthy to recall The Plan, prior to this instance, had mandated that a black female be hired into this particular position. (SOF ¶ 51) The
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Defendants were clearly aware that there was a "Conspicuous Absence" of Black Females, as reported in The Plan. (SOF ¶ 32 - 35) On or about June 1998, Liz applied again for the Computer Specialist position, GS-334-5/7/9; PVA#98-114B1. (SOF ¶ 52) Liz was qualified to hold the position, yet, instead of Liz, Mr. Moore selected Wayne Bivens, a white male. (SOF ¶ 53 - 55) Additionally Wayne Bivens was only qualified as a GS-7 (SOF ¶ 56) The Defendants were clearly aware that there was a "Conspicuous Absence" of Black Females, as reported in The Plan. (SOF ¶ 57) On or about September of 1996, Liz paid Ten Thousand Dollars ($10,000.00) to become a Microsoft Certified Professional. (MCP). (SOF ¶ 58) Liz completed the course in August of 1998. (SOF ¶ 59) Liz put her MCP certification in her Official Personal Folder (to assure that professional certification was noticed). (SOF ¶ 60) On October 8, 1998, Plaintiff filed an Equal Employment Opportunity ("EEO") non-selection and retaliation complaint (hereinafter referred to as "Complaint") complaining about all of the applications which were summarily denied in applying for the positions listed above. On July 14, 1999, the EEO determined that Plaintiff had been non-selected and retaliated against for reporting the derogatory e-mail. (SOF ¶ 61- 62).2 May 26, 1999, Liz filed an EEO complaint for non-selection and retaliation specifically against Richard Moore. (SOF ¶ 63) On July 15, 1999, Liz filed an amended complaint with the EEO for non-selection and retaliation against Richard Moore. (SOF ¶ 64) On or about August 1999 Liz applied for Computer Specialist GS-334-5/7/9; PVA#99-032B1. (SOF ¶ 65) Although Liz was qualified for the position, Mr. Moore

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Exhibit 25 is the conclusion of the EEO Investigation done by the Office of Resolution Management Investigator. 7

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selected John Legendre, a white male. (SOF ¶ 66 - 68) Additionally, Mr. Legendre was only rated as a GS-5. (SOF ¶ 69) In October of 1999, Liz joined the AFGE union and became the Fair Practice Labor Coordinator. (SOF ¶ 70) In that capacity, Liz represented approximately twelve (12) employees having discrimination claims against the Defendants. (SOF ¶ 71) Additionally, in May of 1999, Liz solicited the Arizona State NAACP's help in trying to resolve the VAMC's discriminatory and oppressive practices. (SOF ¶ 72) Consequently, on May 26, 1999, The NAACP conducted an investigation on behalf of Liz.3 (SOF ¶ 73) 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 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United State Government", which notice was, among other things, 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. s2000e et seq. has occurred at (the VAMC) facility." (SOF ¶ 74 - 75) 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 following entries: "Date Posted: March 17, 2000" "Posting Expires: May 17, 2000"

Plaintiff interrogatory #15 (see Exhibit #12) asked if Defendants had been made aware of any complaints which alleged selection, promotion and/or hiring practices were wrongful. Defendant objected and stated the interrogatory was overbroad, not relevant or likely to lead to discoverable information. The newspaper articles were clear that Defendant was very aware of the complaints. Information of knowledge of the complaints would be very relevant to this particular case. 8

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"29 C.F.R. Part 1614". (SOF ¶ 76).4 The EEOC Notice, itself, signed by "John Fears", the VAMC Medical Director, is further evidence the VAMC was particularly and expressly aware that its employment/promotions practices were violative of applicable, Federal Statutes. 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. (SOF ¶ 77) Further, it became abundantly clear to Liz that Defendants were not attempting to resolve the existing, discriminatory and oppressive problems. So, as a last resort effort to halt the observed discriminatory and oppressive VAMC practices, Liz organized a series of informational protests. (SOF ¶ 78) The first protest was held May 19, 2000.5 (SOF ¶ 79) The protesters marched in front of the VAMC for four (4) hours demanding an end to Defendants' discriminatory employment and promotion practices. (SOF ¶ 80) Defendants received a letter from the Director requesting that the two parties sit down and discuss their issues and differences. (SOF ¶ 81) Yet, after exhausting the chain of command to speak with the Director, the Director refused to meet with Liz. Defendants' discriminatory employment and promotion practices continued for Grades GS/9 and above despite having The Plan, which clearly recognized, and mandated

In Plaintiff's interrogatory #5 (See Exhibit #12) Defendant was asked "For the period from May 1, 1994 to the date of your response, please identify each instance in which the Arizona Civil Rights Division, Equal Employment Opportunity Office of Resolution Management, the United States Equal Employment Opportunity Commission, the United States Justice Department, United States Labor Department and/or any other state or federal government entity that has conducted an investigation of you has determined you have discriminated against any employee or applicant or retaliated against any employee who has complained about race discrimination." Defendant answered "The Arizona Civil Rights Division is without jurisdiction to conduct an investigation of a federal agency. Defendant is unaware of any investigation by the other federal entities mentioned". This statement is clearly untrue as the exhibit shows. 5 Plaintiff interrogatory #15 (See Exhibit #12) asked if Defendants had been made aware of any complaints which alleged selection, promotion and/or hiring practices were wrongful. Defendant objected and stated the interrogatory was overbroad, not relevant or likely to lead to discoverable information. The newspaper articles regarding the protests clearly show Defendant was aware of complaints pertaining to race discrimination. This information is relevant and discoverable but was not given to Plaintiff by Defendant. 9

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remedial directives aimed at solving, the VAMC discriminatory employment and practices problem. (SOF ¶ 32 - 35) The first protest failing to motivate the VAMC and/or its superiors, Liz scheduled another protest for October 6, 2000. (SOF ¶ 82) The protesters again marched in front of the VAMC for four (4) hours demanding an end to Defendants' discriminatory promotion practices. (SOF ¶ 83) On or about November 13, 2000, Liz applied for the Computer Specialist GS-3345/7/9; PVA#2000-279B1. (SOF ¶ 84) Liz was, still at this time, qualified to hold and be employed within this position; yet Liz was not selected to fill the position. (SOF ¶ 85 86) Yet again, Mr. Moore selected a white male, Robert Pyle ("Mr. Pyle"). (SOF ¶ 86 87) Liz was more qualified than person actually selected to fill the said position, as Robert Pyle only possessed six (6) credit hours of computer education, while Liz held an MCP, among other credentials. (SOF ¶ 88 - 90) At this point, The Plan had been in effect for two (2) years and nine (9) months. (SOF ¶ 32) Liz had, during that period, applied for a Computer Specialist Position for which she was qualified for on twenty-two (22) separate occasions, but never selected to fill such position at any time. Compliance, or attempt at compliance, with The Plan, again, was wholly ignored. Defendants have not hired one, single Black Female in the Professional Occupation of Computer Services at any time since The Plan, which called for at least one (1) Black employees per year to be hired from the date thereof, has been in effect; and, consequently, there remains a "Conspicuous Absence" of Black Females at the VAMC, even two years and nine months after The Plan's implementation. (SOF ¶33; ¶ 91 - 92) Liz in conjunction with AFGE decided to organize another informational protest. (SOF ¶ 93) On August 31, 2001, a protest was held. (SOF ¶ 94) Over 300 VAMC
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employees marched in protest to the VAMC's discriminatory promotion practices. (SOF ¶ 95) On September 20, 2001, Liz received a Voluntary Separation Incentive Payment letter ("VSIP"). (SOF ¶ 99) Of the sixteen (16) employees that received the letter, eleven (11) employees within the Mental Health Behavioral Science Services declined such incentive letter offers. (SOF ¶ 100) However, because Liz refused the VSIP, Defendants decided, on October 15, 2001, to conduct a one employee Reduction In Force ("RIF"). (SOF ¶ 101 - 102) On October 17, 2001, on behalf of the Liz, AFGE requested the right to negotiate the RIF.6 (SOF ¶ 103) It was then discovered that Defendants did not have RIF authority to reduce Liz's position. (SOF ¶ 104) Under VHA Directive 96-005, RIF actions adversely affecting employees in centralized positions must be approved by Veterans Health Administration (VHA) Headquarters. (SOF ¶ 105) On October 22, 2001, Five days after they delivered the RIF notice VAMC requested authority for the RIF. (SOF ¶ 106) But on December 3, 2001, the VHA denied VAMC RIF Authority. (SOF ¶ 107) That being the case, at all times prior thereto, any and all of Defendants' RIF activities were improper and executed without any appropriate authority; and as such, those baseless RIF activities were tantamount to harassment. Still, oddly enough, there is an employee that has been performing Liz's job description since the VSIP, and the function of the Liz's position continues to be performed to this date. (SOF ¶ 118). Strangely, the CWTIT Program was not dissolved until on or about July 2002. (SOF ¶ 117) On November 19, 2001, Defendants adopted the recommendations of an "Annual Affirmative Employment Program Accomplishment Report" (such report being
In Plaintiff's interrogatory #17 (See Exhibit #12) Defendant answered "There were no adverse actions or Reductions-in Force...", however the letter from the AFGE states that if Plaintiff was to be forced into the Human Resources Department that she had declined originally, she would be ineligible for membership in the union. Plaintiff considers this an adverse action to which Defendant denies. 11
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hereinafter referred to as "The Report"). (SOF ¶ 96) The Report's analysis revealed that there was a "Conspicuous Absence" of Black Females in the position of Computer Specialist. (SOF ¶ 97) However, in the Affirmative Employment Program for Minorities and Woman the Director fails to make a report of Objection and Action Items to alleviate the under representation of African American females in the Computer Specialist occupation. The Report had a Numerical Objective to hire one (1) African American female for each year of The Plan in the Computer Services occupation. (SOF ¶ 98) Liz was involuntarily put into her current position of Human Resources Specialist. (SOF ¶108) The VAMC has approximately 2000 positions. Although a variety of positions were available to be filled, Liz was only offered one position. (SOF ¶109) Rafael Martinez ("Mr. Martinez") Liz's supervisor stated that Liz could only have applied for jobs at a lower grade. (SOF ¶110) Contrary to good performance awards and evaluations Mr. Martinez felt Liz was only qualified for housekeeping aid jobs; food service work; and secretarial work. (SOF ¶111) Furthermore, at the time Liz was moved to her current position, she became ineligible to represent fellow employees in EEO cases. (SOF ¶112) Excluding Liz from engaging in protected activities work to Defendants advantage as Liz was a strong advocate for minorities and employees of VAMC. (SOF ¶113) Having Liz in a situation where she can no longer engage in protected activities affects not only Liz, but the entire bargaining unit. (SOF ¶114) Additionally, the current position Liz was forced into was previously abolished through a buyout as the former employee who had Liz's current job received a buyout. (SOF ¶115) The former employee that held Liz's position accepted a buyout. (SOF ¶ 116) Under VA regulation the only reason to give an employee a buyout is the abolish the position. (SOF ¶116)

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Liz is an exceptional employee as she has been given a number of awards including time off awards, special contribution awards and merit awards. (SOF ¶ 119) In Mr. Martinez's own words Liz was a good employee. Her awards were based on her performance and contributions. (SOF ¶ 120) II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper where no genuine issue as to any material fact exists and the movant is entitled to judgment as a matter of law. FED.R.CIV.P.56(c); Celotex

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Corp. v. Sutrett, 477 U.S. 3 17,322 (1986). The initial burden rests on the moving party to point out the absence of any genuine issue of material fact. FED.R.CIV.P. 56 (a); Celofex, 477 U.S. at 323. Once satisfied, the burden shifts to the opponent to demonstrate through production of probative (and admissible) evidence that an issue of fact remains to be tried. Id. at 323-24. The non-moving party may not rest on mere denials of the movant's pleadings, but must respond asserting specific facts showing a genuine issue

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exists precluding a grant of Summary judgment. FED.R.CIV.P.56(e); Celotex, 477 U.S. at 324. III. ARGUEMENT A. The VA has a long historic record of discriminating against Blacks and especially, Black Women!

Plaintiff moves for a Summary Judgment regarding the computer specialist positions she has applied for. Plaintiff applied for numerous positions as a computer specialist and was denied selection each time.

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Plaintiff applied for PVA numbers 97-175B1; 97-148B1; 97-137B1; 98-204B1; 98-165B1; 98-166B1; 98-028B1; 98-007B1 and 2001-169C2. According to Defendants
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Response to Plaintiff's Request for Production #3, the information regarding the candidates selected is unknown. Plaintiff applied for PVA numbers 97-139B1; 98-

060B1; 98-114B1; 99-023B1 and 2000-279B1. She was not selected. Defendants claim
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that the candidate selected was more qualified. (See Exhibit 12 and Exhibit 13) Prima Facie Case of Discrimination "The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by

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showing (i) that she belongs to a racial minority;(ii) that she applied and was qualified for a job for which the employer was seeking applicants;(iii) that, despite her qualifications, she was rejected; and (iv) that, she was rejected under circumstances giving rise to an inference of discrimination. (None of the positions were filled by African American females)." McDonnell Douglas Corp., 411 U.S. at 802. In this case, it is undisputed that Liz is a Black woman who applied for the above positions was qualified and non-Black was placed in the position. Legitimate. Non-Discriminatory Reason

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Defendants have advanced two non-discriminatory reasons for the non-selection. One, the candidate selected was more qualified than Liz; the other was "Unknown". Once Defendant has stated a legitimate, non-discriminatory reason for not promoting Liz,

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the burden shifts back to Plaintiff to present evidence that the proffered explanation is a pretext for a discriminatory reason. McDonnell Douglas Corp. 411 US. at 802. Plaintiff may meet this burden "either directly by persuading the court that a discriminatory reason
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more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Chuang v. Univ. of California, Davis, 225 F.3d 1115, 1123 (9th Cir. 2000). In this case, Plaintiff has evidence to show that

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Defendant's reason for rejecting her promotion is pretext and was actually motivated by discrimination. Plaintiff's prima facie case, together with evidence discrediting defendant's explanation, and expressions of discriminatory bias by decision participants, permit a finding that defendant denied her a promotion because of her pursuit of title vii claims.

The Supreme Court, in a unanimous decision, recently clarified the nature of
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proof required to support a finding of intentional discrimination, and the standard of review for granting judgment as a matter of law or summary judgment in discrimination cases. Reeves v. Sanderson Plumbing Products, 120 S.Ct. 2097 (2000). The Court held that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification" for a challenged employment action "is false, may

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permit the trier of fact to conclude that the employer unlawfully discriminated." Id.at
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2109. In so holding, the Court recognized that "proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. at 2108. Consistent with general evidentiary principles, the Court explained, the trier of fact in "appropriate circumstances ... can reasonably infer from the falsity of the explanation that the

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employer is dissembling to cover up a discriminatory purpose." Id. "[O]nce the employer's justification has been eliminated," moreover, "discrimination may well be the
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most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision." Id. at 2108-09. The "prophylactic" objective of Title VII, aimed at inducing employers "to self-examine and to self-evaluate their

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employment practices and to endeavor to eliminate, so far as possible," the lingering effects of past discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975) (internal quotation omitted). Evidence of Defendant's unlawful motive is strong. 1. Statistically Evidence of Defendants Unlawful Motives. An overall statistical picture of Defendant's promotion practices show that Defendant does not promote blacks and especially, Black Females in the position of

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Computer Specialist. Even through the suit seeks only individual relief for an individual instance of discrimination, and is not a pattern or practice suit by the government or a class action, the past history of the employer's employment practices with regard to both whites and minorities is relevant information. Burns v. Thiokol Chemical Corporation, 483 F.2d 300, 306 (5th Cir. 1973). Statistical proof alone may be used in an individual

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action to establish a prima facie case of discrimination, and in such case the statistical
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evidence is to be considered just as probative as it would be if the case were a class action. Davis v. Califano, 613 F.2d 957, 962-963 (D.C.Cir. 1979). In Davis, the court reasoned: "Just as statistical proof of a `broad-based policy of employment discrimination [provides] reasonable grounds to infer that individual [employment] decisions were made in pursuit of the discriminatory policy and . . . require[s] the employer to come forth with evidence dispelling that inference' in a class action, so too should the use of statistical
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evidence have equal force and effect in an individual discrimination case." At 963. Hiring statistics which support an inference of discrimination in hiring are relevant and

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admissible in an individual case of discrimination. See, Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103-1104 (8th Cir. 1988). In that case, the court reasoned: "As a matter of common sense, however, it is hard to see how evidence which suggests that Ford discriminated against blacks in hiring would be irrelevant to the question of whether it fired a black employee because of his race. If a plaintiff can present comparative statistical data which `might suggest that equal employment opportunity was not the employer's prevailing policy ...' this evidence has some probative value for the question of whether discrimination has motivated a particular employee's treatment. ... Id. at 1103-1104. "One commonly used measure of statistical significance, is evidence showing that an employer promotion practice selects member of a protected class in a proportion smaller than their percentage in the pool of actual applicants. Robinson v. Adams, 847 F.2d 1315, 1318 (9th Cir. 1987). Generally, the appropriate population is the relevant labor market from which the positions at issue are filled. Stout v. Potter, 276 F.3d 1118, 1123 (9th Cir. 2002). The composition of the relevant labor market is then compared to composition of the successful applicants. Id. Defendants developed a plan that provided the comparisons. On February 10, 1998, Defendants adopted John R. Fears recommendations encompassed within a "Multi-Year Affirmative Employment Program" The Plan's discussed analysis identified and evidenced a "Conspicuous Absence" of Black Females in Professional Occupations like Administrative Computer Services. A Conspicuous Absence is present when the work force representation is 25% or less of the appropriate civilian labor force representation. The Plan was to be in effect for multiple
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years. The plan had a Numerical objective to hire 5 black females for each year of the plan in the Administrative Computer Services. During the entire duration of The Plan Plaintiff had, applied for a Computer Specialist Position for which she was qualified for on twenty-two (22) separate occasions, but never selected to fill such position at any time. Compliance, or attempt at compliance, with The Plan, again, was wholly ignored. Defendants did not hired one, single Black Female in the Professional Occupation of Administrative Computer Services at any time since The Plan, which called for at least five (5) Black employees per year to be hired from the date thereof, has been in effect; and, consequently, there remains a "Conspicuous Absence" of Black Females at the VAMC, even after The Plan's implementation. On November 19, 2001, Defendants adopted John R. Fears recommendations encompassed within an "Annual Affirmative Employment Program Accomplishment Report" (such report being hereinafter referred to as "The Report"). The Report's analysis revealed that there was a "Conspicuous Absence" of Black Females in the position of Computer Specialist. The Report had a Numerical Objective to hire one (1) African American female for each year of The Plan in the Computer Services occupation. The Plan and the Report clearly show that the promotion practice of the defendant in the area of Computer Specialist position has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994, 108 S.Ct. 2778, 2789 (1988). During John R. Fears Depositions he testified that even though he signs the plan he does not read it. No one follows the Plan, and he does not follow the plan.

Completely disregarding the EEO VA site visit report which informed him: (1) "Effective EEO programs management is not apparent at the medical center." (2) "The

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representation of African Americans in pay grades GS-9 and above is less than their representation in the medical center's workforce..." The United States Equal Employment Opportunity Commission dated 1/27/00 found that defendant had violated of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. s2000e et seq. has occurred at (the VAMC) facility , "The disparate impact of the employer's challenged actions may be a highly relevant consideration in the evaluation of a disparate treatment claim [because] the discriminatory effect of an employment practice is `part of the evidence to be considered by the trial court in reaching a finding on whether there was discriminatory intent as a factual matter.'" Green v. USX Corp., 896 F.2d 801, 807 (3rd Cir.1990). The director fully aware of the discriminatory promotion policies from a site visit that he requested still ignores the same information in a report that he is responsible for. The report show that his facility discriminates against black females. 2 The VAMC Site Visit Repot Is Evidence Of Defendants Unlawful Motives A VAMC site visit report, completed on November 21, 1997, which concluded the following: (1) "Effective EEO programs management is not apparent at the medical center." (2) "The representation of African Americans in pay grades GS-9 and above is less than their representation in the medical center's workforce..."

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3 EEO Discrimination Finding Is Evidence Of Defendant Unlawful Motives On October 8, 1998, Plaintiff filed an Equal Employment Opportunity ("EEO") nonselection and retaliation complaint (hereinafter referred to as "Complaint") complaining

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about all of the applications which were summarily denied in applying for the positions

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listed above. On July 14, 1999, the EEO determined that Plaintiff had been non-selected and retaliated against for reporting the derogatory e-mail. 4 The EEOC Finding Is Evidence Of Defendants Unlawful Motives.

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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 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United State Government", which notice was, among other things, 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. § 2000e et seq. has occurred at (the VAMC) facility." 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 following entries: "Date Posted: March 17, 2000" "Posting Expires: May 17, 2000" "29 C.F.R. Part 1614". The EEOC Notice, itself, signed by "John Fears", the VAMC Medical Director, is further evidence the VAMC was particularly and expressly aware that its employment/promotions practices were violative of applicable, Federal Statutes. 5 Direct Evidence Of Defendants Unlawful Motives. Liz was more qualified than Linda Edwards who was selected for the 97-139B1

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position. The human resource department determined that Ms. Edwards was not qualified
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to fill that position as she had "no specialized expertise in computers such as software or
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hardware setup and no instruction/training background". Her Qualification Determination was marked `not qualified'. Additionally, Liz was more qualified than the "Unknown" who was selected for the 98-060B1 position. The selecting official, Ms.

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Tyson, felt Liz was the best candidate for the position regardless of these fact defendants selected a white male. Ms. Tyson thought Liz was a prime candidate and that she would have been a very good person for the position. Ms. Tyson and Mr. Moore spoke at length regarding Liz's qualifications. Mr. Moore tried very strongly to get Ms. Tyson to hire Rhonda Hill ("Ms. Hill"), a white female with secretarial skills. Mr. Moore wanted to hire Ms. Hill in case he needed someone who could perform secretarial duties. Ms.

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Tyson stated to Mr. Moore that Liz was the better candidate due to her strong computer skills and that "Liz has taken initiative, spent her own money to go get training". 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. For instance, whenever the personnel department needed help, Liz was always willing to assist. As

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Ms. Tyson explained, "She showed motivation and assistance". Ms. Tyson felt that Liz
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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. Wayne Bivens, who's prior position was that of a File clerk was selected for 98-114B1. John Legendre, who's prior position was that of a house keeper was selected for 99-023B1. Mr. Bivens and

Mr. Legendre only qualified at the entry level; while Liz qualified at the journeyman
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level; GS-9. Applicants qualifying at a higher grade are more experienced and need less training for the position. By this time Plaintiff had already received her MCP. Finally,
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Robert Pyle was selected for 2000-279B1 his prior position was a pharmacy technician; Mr. Pyle only had six (6) hours of computer credits while Liz had a MCP and on the job training. Plaintiff was clearly the best candidate and the only reason that she was not

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selected was because she was Black. 6 Defendants Destruction Of PVA Files is Evidence Of Defendants Unlawful Motives The Court must grant summary judgment on every Position in which plaintiff

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applied for that Defendant have stated as unknown: 97-175B1; 97-148B1; 97-137B1; 98-204B1; 98-165B1; 98-166B1; 98-028B1; 98-007B1; 2001-169C2. (See Exhibit 12 and Exhibit 13 and Exhibit 22) Defendants excuse of "unknown" is a non-legitimate discriminatory reason. In a letter dated October 21, 2005 Defendant wrote to Plaintiff stating: "A final statement as to the request for production in the Plaintiff's October 4, 2004 First Set of Interrogatories number 12 (a) through (r), 13 and 14 that the documents have been destroyed". In the Ninth Circuit, spoliation of evidence raises a presumption that the destroyed evidence goes to the merits of the case, and further, that such evidence was adverse to the party that destroyed it. Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 806 (9th Cir. 1982). On the above positions Defendants cannot present any evidence supporting a legitimate reason for the selection. The court must grant summary judgment.

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In closing, Defendant's action have been consistent with the February 18, 1997
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letter which states "keep blacks and other minorities where they belong; at the bottom".
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This letter speaks volumes toward discovering the most likely reason for Liz's denial of
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promotions, discrimination! The court must grant summary judgment.
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B.

THE EVIDENCE CLEARLY SHOWS THAT THE DEFENDANT HAVE RETALIATED AGAINST LIZ.

Plaintiff moves for a Summary Judgment regarding Defendants Unlawful
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discriminatory promotion and RIF practices. Retaliation and discrimination are separate wrongs. Retaliation is not a form of discrimination. Subject matter jurisdiction of a discrimination trial properly includes any retaliation for the filing of the discrimination complaint because the "case can embrace not only the allegations in the administrative charge but also discrimination like or reasonably related to the allegations of the charge and growing out of such allegations." Malhotra v. Cotter & Co., 885 F.2d 1305, 1312

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(7th Cir. 1989). "It is good faith and reasonableness, not the fact of discrimination that is the critical inquiry in a retaliation case." Rucker v. Higher Education Aids Board, 669 F.2d 1179, 1182 (7th Cir. 1982); accord Flait v. North American Watch Corp., 3 Cal.App.4th 467, 476 (1992). The existence of a hostile work environment could make an employer

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liable for retaliation. See Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590,
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615 (1989); Strother v. Southern California Permanente Medical Group, 79 F.3d 859, 869 (1996). To succeed on a retaliation claim, a plaintiff must first establish a prima facie case. To establish such a case, the plaintiff must show that he or she engaged in a protected activity, that he or she was thereafter subjected by his or her employer to adverse

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employment action, and that a causal link exists between the two. The causal link may be established by an inference derived from circumstantial evidence, such as the employer's
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knowledge that the employee engaged in the protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision. If the plaintiff makes out a prima facie case, the burden shifts to the defendant to articulate

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some legitimate, non-retaliatory reason for the adverse action. The burden then shifts back to the plaintiff to show that the asserted reason is pretextual. Jordan v. Clark, 847 F.2d 1368, ______ (9th Cir. 1988). A prima facie case of retaliation is established by a showing by the plaintiff that the adverse employment decision occurred after the protected activity of which the employer was aware. E.E.O.C. v. Crown Zellerbach Corporation, 720 F.2d 1008 (9th Cir.

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1983); Aquirre v. Chula Vista Sanitary Service, 542 F.2d 779, 781 (9th Cir. 1976).

1. Plaintiff Engaged in a Protected Activity: She Opposed What She Reasonably and in Good Faith Believed to Be Unlawful Discriminatory Promotion practices. Liz's opposition to Defendants Unlawful discriminatory promotion practices consisted of bringing complaints directly to the Medical Center Director, filing EEO complaint or conducting informational protest. Making a charge or assisting, or participating in any manner in an investigation, proceeding, or hearing in to any discriminatory employment practice is a protective activity. See 42 U.S.C. § 2000e-3(a) (Title VII). Protesting is also a protected activity.

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Protecting an employee who reasonably believes that discrimination exists is consistent with liberal construction of equal employment opportunity law in implementing the

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legislative purpose of eliminating employment discrimination. Id. See also, Moyo v. Gomez, (9th Cir. 1994) 40 F.3d 982, 985 (correctional officer may bring a Title VII claim for retaliation for protesting employer's practice of permitting white inmates, but

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not black inmates, to shower because, although this practice may not actually violate Title VII, the correctional officer's belief that it did was reasonable); Jurado v. Eleven Fifty Corp., (9th Cir. 1987) 813 F.2d 1406, 1411 (English-only order not a Title VII violation as a matter of law, but opposition based upon a reasonable belief that the order was discriminatory is protected). Clearly under the above cases Protesting would be a protective activity.

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3. There is a Causal Link between Plaintiff's Protected Activity and Defendants discriminatory acts. The most obvious causal link between Plaintiff's protected activity and Defendants adverse actions is the proximity in time. Protective activity followed shortly by an adverse employment action was pretext for retaliation. Miller v. Fairchild Industries, Inc., 885 F.2d 489, 505 (9th Cir. 1989).

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a. Plaintiff was Retaliated Discriminatory E-mail.

Against

Because

She

Challenged

a

Plaintiff moves for a Summary Judgment regarding Liz's denial for the computer
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specialist positions she has applied for. The evidence clearly shows that Defendants retaliated against her because of her BEPM activities. On February 8, 1997, an article

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regarding the VAMC author's derogatory e-mail appeared in the Arizona Republic stating
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that minority employees continued to complain about the VAMC's evidenced indifference and lack of concern shown toward the authors of the derogatory e-mail, and
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the fact that the authors were not disciplined harshly enough. Consequently, 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 discipline against the said authors. Still, no further action was taken against the authors. From that point

forward Liz was denied promotion into the following positions. 97-068B1; 97-115B1; 97-137B1; 97-139B1; 97-148B1; 97-175B1;98-007B1; 98028B1; 98-060B1; 98-114B1; 98-105B1; 98-166B1; 98-165B1. (See Exhibit 22) On July 14, 1999, the EEO determined that Plaintiff had been non-selected and retaliated against for reporting the derogatory e-mail.

b. Plaintiff RIF was in retaliation for leading a protest that challenged the promotion practices of the Defendant. Liz organized a series of informational protests. The first protest was held May 19, 2000. The protesters marched in front of the VAMC for four (4) hours demanding an end to Defendants' discriminatory employment and promotion practices. Liz scheduled another protest for October 6, 2000. The protesters again marched in front of the VAMC for four (4) hours demanding an end to Defendants' discriminatory promotion practices. On August 31, 2001, Liz led a protest. Over 300 VAMC employees marched in protest to the VAMC's discriminatory promotion practices.7 On October 15, 2001, the Defendant conducted a one employee Reduction in Force ("RIF").

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A reorganization is defined as "the planned elimination, addition, or redistribution of functions or duties in an organization." 5 C.F.R. § Protection Bd., 687 F.2d 285, 286 (9th Cir. 1982). 351.203; Mead v. Merit Sys.

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A reduction in force may not be used as a disguise for an adverse action to remove or demote a particular employee. Gandola v. Federal Trade Commission, 773 F.2d 308, 312 (Fed. Cir. 1985). Liz contends that the reorganization in which she lost her job was a pretense for race discrimination and in reprisal for protected EEO activities. In a case in

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which it is alleged that a RIF was carried out in a discriminatory fashion, the plaintiff
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may establish her prima facie case by demonstrating: (1) that she belongs to a protected class; (2) that she was discharged from a job for which she was qualified; and (3) that others not in her protected class were treated more favorably. White v. Westinghouse Elec. Co., 862 F.2d 56, 60 (3d Cir. 1988); cf. Von Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1475 (7th Cir. 1993); Earley v. Champion Int'l Corp., 907 F.2d 1077, 1082

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(11th Cir. 1990); Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 104 (2d Cir. 1989). Liz has made out a prima facie case of employment discrimination under the above test. She was qualified for the position she held and was the only black person, indeed the only person, to lose her job in the RIF. Plaintiff evidence of discrimination is based on the fact that Defendants reduction was without authorization. On October 17, 2001, on behalf of the Plaintiff, AFGE

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requested the right to negotiate the RIF. It was then discovered that Defendants did not have RIF authority to reduce Plaintiff's position. Under VHA Directive 96-005, RIF

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actions adversely affecting employees in centralized positions must be pre-approved by Veterans Health Administration (VHA) Headquarters. On October 22, 2001, five days after they delivered the RIF notice VAMC requested authority for the RIF. But on

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December 3, 2001, the VHA denied VAMC RIF Authority. "An employer may offer a legitimate nondiscriminatory reason for taking an adverse action against an employee who has engaged in protected activity. ... However, the employer may not proffer a good faith reason for taking retaliatory action." EEOC v. Bd. of Governors of State Colls. & Univs., 957 F.2d 424, 427-28 (7th Cir. 1992); Forman v. Small, 350 U.S. App. D.C. 24 (D.C. Cir. 2001). Legitimate means "Complying with the law; lawful". Black Law

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Dictionary 413(2nd ed. 2001). Defendants had a legitimate reason for the VSIP "budgetary constraints" however; they only had a good faith reason for the RIF based on the December 3, 2001, VHA denial of VAMC RIF Authority. That being the case, the RIF was not recognized by VHA and VAMC had no legal authority, Therefore Defendants reason for the RIF was

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non-legitimate and the court can grant summary judgment.
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III.

CONCLUSION

The Court must enter judgment for Plaintiff because Defendants cannot present a legitimate non discriminatory reason for their action. All facts supporting this motion are undisputed. Liz respectfully requests that the court summary judgment for the Plaintiff. ..... .....

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Dated this 30th day of May, 2006.

s/Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Alex

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CERTIFICATE OF SERVICE I hereby certify that on the 30th of May, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems for filing and

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transmittal of a Notice of Electronic Filing for the following CM/ECF registrants:

[email protected] [email protected] A copy of this document was provided by hand-delivery to: The Honorable Judge Roslyn Silver United States District Court 401 West Washington Courtroom 604 Phoenix, AZ 85003

s/Stephanie Coulter

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