Free Statement - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Martha Slaughter-Payne, CIV-03-2300 PHX ROS Plaintiff, v. Anthony Principi, Secretary Department of Veteran's Affairs, Defendant. BACKGROUND 1. Ms. Martha Slaughter-Payne (Payne) is currently employed as an Employee
DEFENDANT'S STATEMENT OF FACTS

Relations Specialist, GS-0230-09 at the Carl T. Hayden Veterans Affairs Medical Center (CTHVAMC) in Phoenix, Arizona. The Amended Complaint contains allegations from two separate EEO complaints. One EEO complaint concerns her non-selection for a Computer Specialist Position (Agency Case No. 200P-2674) herein after the "NonSelection Case. The second EEO complaint regarded a series of events in late 2001which involved a transfer to new position and related matters, herein after the "Transfer Case."(Agency Case No. 200P-0644-2002100409). Payne subsequently added additional charges to this EEO complaint. In addition, the Plaintiff also filed a union grievance on January 2, 2002 in which she also alleged that she had been discriminated against in her
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transfer from the Vocational Rehabilitation Specialist position to the Employee Relations Specialist position. Despite the agency's contention that the matter was not grievable and not arbitrable, an arbitrator was appointed and a hearing took place. The arbitrator concluded that the matter was not grievable and not arbitrable, and ruled in favor of the agency. No appeal was taken. 2. Payne began her federal career as a Medical Clerk (Typing), GS-4 at the

VA Medical Center, Palo Alto, California on May 7, 1989. EXHIBIT 1 3. Payne received a non-competitive promotion to the position of Program Clerk

(Typing), GS-5, in Personnel Service at the VA Medical Center in Palo Alto, California effective December 31, 1999.EXHIBIT 1 4. Payne was laterally reassigned to the position of Personnel Assistant(Typing),

GS-5, in Personnel Service effective February 25, 1990.EXHIBIT 1 5. Payne was non-competitively promoted to the position of Personnel Assistant

(OA), GS-203-6 effective May 17, 1992 as the result of the reclassification of her position. EXHIBIT 1 6. Payne applied for and was competitively selected for position of Secretary

(Typing), GS-318-5 under the Chief of Staff/Program Evaluation Research and Education under the VA Medical Center, Long Beach, CA effective June 14, 1992 under merit promotion announcement MP 92-63. EXHIBIT 1 7. In 1994 Payne sought a transfer from San Francisco VA due to an impending

Reduction in Force.. Payne applied for position of Personnel Assistant, GS-6 (with known promotion potential to Personnel Assistant GS-7) in the Human Resources Management Service at the Carl T. Hayden VA Medical Center, Phoenix, AZ under competitive procedures (PVA #94-23C) and was selected for the position by Human Resources Officer Rafael Martinez effective May I, 1994.EXHIBIT 1 Rafael Martinez , CTHVAMC employee, was subsequently charged, by Payne,

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with alleged unlawful discrimination in the Transfer Case. 8. Payne received a non-competitive promotion to the position of Personnel

Assistant, GS-7 effective April 30, 1995.EXHIBIT 1 9. Since the Payne has been an employee of the CTHVAMC, management

has approved her for promotions, awards, favorable job performance evaluations and has retained her as an employee even when CTHVAMC experienced reorganizations and reduced operational funding. EXHIBIT 1 10. Payne received a Suggestion Award for $100 effective April 17, 1996. Payne

received a Performance Award for $450 effective May 28, 1997. EXHIBIT 1 11. Payne received a Special Act or Service Award for $425 effective September 17,

1998.EXHIBIT 1 12. Payne received a "Time-Off" award for 8 hours effective September

17,1998.EXHIBIT 1 13. Payne received a "Time-Off" award for 16 hours effective April 28, 2005 while

working as a Human Resources Specialist, GS-9. EXHIBIT 1 14. Payne applied for and was competitively selected (PVA 99-067B1) for the

position of Vocational Rehabilitation Specialist, GS-9 in Mental Health & Behavioral Sciences Service effective September 12, 1999.EXHIBIT 1 15. Payne was reassigned to Human Resources Management Service as a

Human Resources Specialist (Employee Relations), GS-9 effective December 30, 2001. EXHIBIT 2. The Non-Selection Case: Computer Specialist, GS-344-5/7/9 (Agency Case No. 200P-2674) 16. Payne was employed by the CTHVAMC as a GS-09 Vocational Rehabilitation

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Specialist when, on December 1, 2000, Payne contacted the Office of Resolution
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Management and filed an informal complaint alleging that she was not selected for the
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position of Computer Specialist, GS-344-5/7/9 as reprisal for prior EEO activity. The
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counselor was unable to resolve the complaint, EXHIBIT 3, and after receiving written notice of her right to file a discrimination complaint, the Plaintiff filed a formal complaint on December 28, 2000. EXHIBIT 4. The formal complaint also alleged that the non-selection was retaliation for previous EEO activity. EXHIBIT 5. 17. The EEO Investigator completed her report on May 17, 2001, having taken

witness affidavits by sworn testimony and obtained relevant documentary evidence. Payne then requested a hearing before an Administrative Judge of the Equal Employment Opportunity Commission. The case was in the pre-hearing stage when Payne filed her Complaint in Federal District Court. Subsequently, a Motion to Dismiss for Lack of Jurisdiction was filed by the agency. COMPUTER SPECIALIST SELECTION PROCESS 18. The Information Resources Management Department (IRM) CTHVAMC

determined that they had a recurring need for Computer Specialists within their department. As a result, they decided to fill existing and potential vacancies by way of an Open Continuous Announcement, which means that applications are accepted on a regular, recurring basis and considered when a vacancy materializes. CAMPBELL Declaration at pp. 6-7. 19. Open Continuous Announcement 34 sought potential candidates at three different

levels, a GS-5/7/9 Computer Specialist working in Systems; a GS-12 working in Programming, and a GS-11/12 working in Systems. The announcement listed a name and phone should an applicant need additional information. EXHIBIT 6. 20. Payne applied under Open Continuous Announcement 34. The cover page to the

application, VA Form 4078 is a two-part form. Payne indicated that she was applying for a Computer Specialist GS-9/11 position, which is not listed on the Open Continuous Announcement OC 34. EXHIBIT 7. 21. The bottom portion of the form is completed by Human Resources (HR) and

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returned to the employee at a later date with an annotation of whether the individual meets the basic, minimum qualifications for the position. 22. After the deadline for submitting applications, the IRM Department requested a

Certificate of Eligible Candidates for the position of Computer Specialist GS-5/7/9 pursuant to Announcement No. 2000-279B1. This announcement number is a HR internal number used to track Certificates of Eligible Candidates issued. In this case, the number was assigned when the IRM staff requested a Certificate from OC 34. EXHIBIT 8. 23. The HR staff reviews the applications and compares the education and experience

of each applicant to the minimum standards published by OPM for the position. The Computer Specialist Position required consideration of two standards. First, the OPM General Standards for Administrative and Management positions. Exhibit 9. Second, an individual qualification standard, which modifies the general qualification standards. EXHIBIT 10. 24. Of the thirteen applicants Mr. Ron Webb, HR staff determined that seven did not

meet both the minimum general and individual standards for the position. They were notified that they did not meet the minimum standards and therefore not qualified for the position. EXHIBIT 15. Webb provided IRM with the Certificate of Eligibles, which contained six names, including Robert Pyle, the selectee, and Payne. EXHIBIT 11. 25. The IRM selecting official, Richard Moore, delegated the review and

recommendation process to Robert Jones, a subordinate supervisor in IRM. MOORE Declaration at pp. 8-9. 26. Webb erroneously qualified Payne, as well as Jemison at the GS-9 level, even

though they failed to meet the general requirement of one year of specialized training at the GS-7 level. Webb also erred in qualifying Foress at the GS-7 level. EXHIBIT 11;

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PONCE Declaration; CAMPBELL Declaration at pp. 5-14. Payne also failed to meet the individual requirements of education or experience at the GS-9 level. EXHIBITS 12, 13 27; HUCKABY Declaration; PONCE Declaration. 27. This error was noted and corrected by Jones, who also determined that no

candidate qualified above the GS-5 level when he compared their applications against the Computer Specialist Position Descriptions for GS-7 and GS-9. EXHIBITS 12, 13, 14, 16, JONES Declaration at pp. 6-16, MOORE Declaration pp.9-10. 28. After a complete review of all of the referred candidates applications, Jones

determined that Robert Pyle was best qualified for the position. EXHIBITS 17, 18; JONES Declaration at pp.9-16, MOORE Declaration at pp. 6-16, PYLE Declaration at pp. 5-12. 29. 30. Moore, agreed and selected Pyle for the position. EXHIBIT 19. Payne was notified of her non-selection. EXHIBIT 20. THE `TRANSFER CASE " (Agency Case No. 200P-0644-2002100409) 31. Payne was employed by the CTHVAMC as a GS-09 Vocational Rehabilitation

Specialist when, on October 31, 2001, Payne contacted the Office of Resolution Management and filed an informal complaint alleging that she was retaliated against for prior EEO activity when; (1) on September 20,2001, she received a Voluntary Separation Incentive Payment letter (2) on September 26, 2001, she received a job offer for a GS-7 position, (3) on October 17, 2001, she received a Notice that her position was pending a Reduction in Force (RIF). EXHIBIT 21. Payne's formal EEO Complaint was dated December 3, 2001. EXHIBIT 22. 30. The Master Agreement between Department of Veterans Affairs Carl T.

Hayden Medical Center (DVA)and the American Federation of Government Employees, which was in effect in 2001, required the DVA to advise the Union and the individual potentially affected in writing before obtaining authority to conduct a Reduction in Force

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(RIF). The EEO administrative record contained a copy of the relevant provisions of this agreement. EXHIBIT 23. 31. Despite this requirement, Payne has improperly alleged that this Notice was in

"retaliation" for her prior protected activity. Nothing could be further from the truth. Furthermore, when specifically asked to admit the relevant provisions in the Union Bargaining Agreement, despite the fact that she had been a Union Representative, she improperly responded to RTA #18 by stating: Plaintiff can neither admit nor deny. The information that is known and readily obtainable by Plaintiff is insufficient to enable the Plaintiff to admit or deny the request, for the reason that the underlying data required for an intelligent response is in the possession of the opposing party. The administrative record contained a copy of the relevant provisions of this

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agreement. EXHIBIT 23. As a result, is an evasive and incomplete response and this
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Court must deem that the plaintiff has admitted this RTA. Rule 36, F.R.Civ.P.
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Therefore, Payne must be deemed , by this Court, to have admitted this Notice
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was required by both VA regulations and the Union Bargaining Agreement. Therefore,
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this charge of "retaliation" lacks a good faith basis in law and fact and is frivolous.
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32. In response to RTA # 19 - Admit that on or about August 27, 2001 (Bates Stamped #009-000106)September 20, 2001 (Bates Stamped RPD #007-000055) September 26, 2001 (Bates Stamped RPD #007-000047) and/or October 15, 2001 (RPD # 08-000009) the plaintiff was informed of possible budget cuts and elimination of positions etc. See ATTACHMENT A. She merely replied: DENIED. See documents submitted to Plaintiff by Defendant Bates Labeled 1st SET-RPD #009-000106 and #009-000107; 1st SET-RPD #007000047, #007-000055 and #007-000056; 1st SET-RPD #008-000009. Payne did not provide the factual basis for this denial or identify witnesses who would support the denial. This is an incomplete and evasive answer as the documents referred to, do indeed provide notice. EXHIBIT 24. Therefore, this Court should deem admitted the fact that Payne received advanced warning, along, with all other affected employees of possible budget cuts and elimination of positions. Rule 36,F.R.Civ.P.

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33. RTA # 20 asked that no employment position occupied by the Plaintiff, from May 7, 1989 , until the present day, either at the VA Medical Center, Palo Alto, California or at the Carl T. Hayden Veterans Administration Medical Center (CTHVAMC), was eliminated by way of a Reduction in Force (RIF) employment action. Payne responded: DENIED See John Fears Deposition, Exhibit 2. Exhibit 2 to the Fears Deposition is the October 15, 2001 Notification to the

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Union of intention to proceed with a Reduction in Force due to budgetary shortfall.
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EXHIBIT 2. This document did not constitute a RIF elimination of the position held by
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Payne as the position had already been eliminated. EXHIBITS 26, 27. No RIF
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occurred and this evasive and unresponsive answer to RTA # 19 must be deemed
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admitted. Rule 36 F.R.Civ.P.
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DEFENDANT'S VERIFIED RESPONSES TO PLAINTIFF'S DISCOVERY
11 34. 12 INTERROGATORY NO. 17: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CWT/IT Program Coordinator (GS-11) Martha Slaughter-Payne, CWT/IT Vocational Therapist (GS-9) Carol Wares, CWT/IT Vocational Therapist (GS-9) 8 Unknown Unknown Unknown Unknown Female Female There were no adverse actions or Reduction-in-Force, however, the following is a list of the employees in the Compensated Work Therapy/Incentive Therapy (CWT/IT) program when it was abolished: (a): Name David Knapp, Age Unknown Ethnicity Unknown Sex Male How many employees performed the same job function as Plaintiff at the time of the adverse action Reduction-in-Force, Voluntary Incentive Separation Payment Offer, Job Offer, and Direct Reassignment? (a) What is the age composition, ethnicity, or sex of all employees who were similarly situated to Plaintiff? (b) Are these similarly situated employees still employed by Defendant? (c) If these employees are not employed by Defendant, were they terminated or did they voluntarily separate their employment? (d) In what capacity are these similarly situated employees currently employed? Were they promoted? ANSWER:

In his verified answer to plaintiff's Interrogatory # 17 the defendant stated:

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David Hardt, CWT/IT Temporary Employee (GS-7)

Unknown

Unknown

Male

(b): David Knapp: Still employed by the Carl T. Hayden VA Medical Center. Martha Slaughter-Payne: Still employed by the Carl T. Hayden VA Medical Center. Carol Wares: No longer employed by the Carl T. Hayden VA Medical Center. David Hardt: No longer employed by the Carl T. Hayden VA Medical Center. (c): Carol Wares: Voluntarily separated her employment. David Hardt: Temporary appointment expired. (d) David Knapp: Applied for and was selected for promotion in another Service Line. Martha Slaughter-Payne: Was moved to another position at the same grade in another Dept. (Human Resources) within the Medical Center.

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In his verified answers to Plaintiff's Interrogatory # 18 the defendant stated:

INTERROGATORY NO. 18: Do the Defendants contend that the actions of the defendant were based upon legitimate business reason, lawful principles of personnel management and legitimate managerial and institutional needs was adopted as a matter of business necessity? (a) If your answer to interrogatory #18 was yes, please IDENTIFY the business necessity that supported your decision for the Reduction in Force and failure to promote plaintiff. (b) As to each business necessity identified in your answer to interrogatory#18 please IDENTIFY each individual with knowledge of any fact relating to such necessity. (c). As to each business necessity identified in your answer to interrogatory #18, please IDENTIFY each WRITING relating to such necessity. (d) Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory #18c. (e) Please state whether Defendant considered all alternative means to achieve each business necessity identified in your answer to interrogatory #18a. (f) If your answer to interrogatory #18e was yes, please IDENTIFY each PERSON who participated in such consideration. (g) If your answer to interrogatory #18e was yes, please IDENTIFY eacl~ WRITING relating to such consideration. (h) Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory #18e. ANSWER: Yes, the actions were based upon legitimate business reason, lawful principles of personnel management and legitimate managerial and institutional needs. 9

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Laurel Van Halderen determined that the CWT/IT Program should be eliminated when all Service Line Administrators were asked to revise their initial Fiscal Year 2002 budget requests to achieve a 10% budget reduction. While the CWT/IT Program provided a valuable service to the veterans it served, I determined that it was not cost effective to continue the Program. In FY2001, the CWT Program served 51 patients with 26 of these being employed. An additional 15 patients participated in the IT Program in FY01 with 3 on the roles at the time I came to this conclusion. The staff to patient ratio was inefficient. In addition to the salary cost for this Program, which was projected to be $188,309 in FY2002, the budget for two Fund Control Points utilized by this Program was planned to be $102,500, totaling $290,809. Promotion was never an issue. 2. John R. Fears, Medical Center Director Richard Pasquale, Administrator, Financial Management (c): 1. Mental Health & Behavioral Science Services Budget Request and Cost Analysis, July 23, 2001. EXHIBIT 27. 2. Memorandum to Medical Center Employees from John R. Fears, Medical Center Director regarding Prospective Fiscal Year 2002 Budget dated August 27, 2001. EXHIBIT 29. 3. Memorandum to Administrators from Richard A. Pasquale regarding FY2002 Cost Containment Initiatives dated August 27, 2001 Mental Health & Behavioral Science Services Revised Budget Request, September 13, 2001. 4. Mental Health & Behavioral Science Services Revised Budget Request, October 2, 2001.(d): Laurel Van Halderen 5. Office of the Medical Center Director 6. Administrator, FMS 7. Laurel Van Halderen 8. Laurel Van Halderen (e) Other alternatives to the elimination of the CWT/IT program were considered. Alternatives considered included reassignment of staff to critical positions and ending temporary appointments. Positions were held vacant for a period of time. Sixteen employees were offered buy outs as an incentive for retirement. In addition, reduction in overtime expenses were planned. (f): Buy outs were offered to 16 employees: Bonnie Babakian, RN Randolph Brumm, RN William Fay, RN Elaine Caves, RN Katherine Ayers, RN Lillian Guzman, RN Martha Burton, RN Charlene Robinson, RN Adam Weisman, Social Worker Helen McNicholas, RN QM Liz Slaughter-Payne, Voc Rehab Carol Wares, Voc Rehab Declined Declined Declined Declined Declined Declined Accepted Accepted Declined Declined Declined Accepted 10

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Kathleen Monroe, RN Declined Sharon von Lentz, Psychologist Accepted Shondel Camara, Lead Medical Clerk Declined Robert Henry, Medical Clerk Accepted Other Actions Taken:

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 RN 25 26 27 28 11 Roberts, Charlene MD ­ Show Low ACOS RN Osterholtz, Rodger Parker, Lorne Burton, Martha Position Affected CWT Coordinator CWT Voc. Therapist CWT Voc. Therapist CWT Temp. Staff Administrative Officer Lead Clerk Clerk Clerk Clerk QM Nurse Inpt. Social Worker Inpt. Social Worker CSTAT Social Worker CSLT Social Worker Inpt. RN Psychologist QM Social Worker Evening LSU MD CSTAT MD Employee Knapp, David Slaughter-Payne, Liz Wares, Carol Hardt, David Gray, Carol Camara, Shondel Vacant Henry, Robert Andrews, Peggy McNicholas, Helen James, Kathleen Weisman, Adam Leon, Michael English, Heather Weekly, Etta VonLentz, Sharon Gutierrez, John Waundry, Geoff McIntyre, Jay Action Transferred to ICS/ Position Abolish Possibly Abolish Buy Out End Temp. Appointment Reassigned to SAC & Homeless Coordinator Abolish / Placed in Med. Clerk Position Abolished thru Attrition Buy Out Reassign to Homeless & SAC Abolish / Reassign to Jade/Opal Clinic Reassign to SAC Reassign to Jade/Opal Clinic Reassign to vacant Homeless position Transfer to CS / Delay Replacement Reassign to CSTAT / Delay replacing behind Buy Out Reassign to lead Social Worker & Inpt. Care Reassign ½ time to Opt. (1/2 time remains in LSU) Reassign to Jade/Opal (temporary coverage for Bray) Temp. Full Time ended Temporary cost savings while ACOS on LWOP Buy Out / Delay Hiring Behind Buy Out / Delay Hiring Behind

(g): Mental Health & Behavioral Science Services Budget Request and Cost Analysis, July 23, 2001.

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1. Mental Health & Behavioral Science Services Revised Budget Request, September 13, 2001. 2. Mental Health & Behavioral Science Services Revised Budget Request, October 2, 2001. (h) Laurel Van Halderen

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In his verified response to Plaintiff's Interrogatory # 19, the defendant stated:

INTERROGATORY NO. 19: Please provide a list of employees that received a Voluntary Separation Incentive Pay offer by date/name/age/sex/race/department/position during the period from October 1, 2000 through the date of your response ANSWER: MH&BSS offered Buy Outs to 16 individual in September 2001 (listed below). No other Buy Outs have been offered in MH&BSS from that date to present. Employee Name/Position Bonnie Babakian, RN Randolph Brumm, RN William Fay, RN Elaine Caves, RN Katherine Ayers, RN Lillian Guzman, RN Martha Burton, RN Charlene Robinson, RN Adam Weisman, Social Worker Helen McNicholas, RN QM Liz Slaughter-Payne, Voc Rehab Carol Wares, Voc Rehab Kathleen Monroe, RN Sharon von Lentz, Psychologist Shondel Camara, Lead Medical Clerk Robert Henry, Medical Clerk Age Sex Unknown F Unknown M Unknown M Unknown F Unknown F Unknown F Unknown F Unknown F Unknown M Unknown F Unknown F Unknown F Unknown F Unknown F Unknown F Unknown M Race Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Unknown Outcome Declined Declined Declined Declined Declined Declined Accepted Accepted Declined Declined Declined Accepted Declined Accepted

Declined Unknown Accepted

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In his verified response to Plaintiff's Interrogatory # 19, the defendant stated: .

INTERROGATORY NO. 20: List all positions that were abolished by position date/title/department/grade/salary during the period from October 1, 2000 through the date of your response. ANSWER: Positions Abolished in MH&BSS in September 2001. I do not have knowledge of positions that may have been abolished prior to that date. Position Affected CWT Coordinator CWT Voc. Therapist CWT Voc. Therapist CWT Temp. Staff Grade GS-11 GS-9 GS-9 GS-7 Employee Knapp, David Slaughter-Payne, Liz Wares, Carol Hardt, David 12 Total Pay Per Period PP17 or PP18 FY2001 $2,546 $1,914 $2,054 $ 606

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Lead Clerk Clerk QM Nurse Psychologist

GS-6 GS-5 Title 38 RN GS-13

Camara, Shondel Henry, Robert McNicholas, Helen VonLentz, Sharon

$1,679 $1,390 $3,136 $3,387

The Mental Health & Behavioral Science Services Budget Request and Cost Analysis provides further information regarding positions that were combined or higher grade positions that were replaced through attrition with several lower graded positions.

38.

Laurel VanHalderen, CTHVAMC, Administrator, Mental Health and Behavioral

Management Services, testified in her Declaration that she determined that the CWT/IT Program should be eliminated when all Service Line Administrators were asked to revise their initial Fiscal Year 2002 budget requests to achieve a 10% budget reduction. While the CWT/IT Program provided a valuable service to the veterans it served, she determined that it was not cost effective to continue the Program. VanHalderen Declaration pp. 7- 17. In FY2001, the CWT Program served fifty-one (51) patients with twenty-six (26) of these being employed. An additional fifteen (15) patients participated in the IT Program in FY01 with three (3)3 on the roles at the time she came to this conclusion. The staff to patient ratio was inefficient. In addition to the salary cost for this Program, which was projected to be $188,309 in FY2002, the budget for two Fund Control Points utilized by this Program was planned to be $102,500, totaling $290,809. As the VA had determined to abolish the program that plaintiff and others were assigned to, the VA extended offers to all affected employees. This included early retirement, transfers and other adjustments. VanHalderan Declaration, pp. 7- 17. There were no adverse actions or Reduction-in-Force, however, the following is a list of the employees in the Compensated Work Therapy/Incentive Therapy (CWT/IT) program when it was abolished: David Knapp: Applied for and was selected for promotion in another Service Line. Still employed by the Carl T. Hayden VA Medical Center.

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Martha Slaughter-Payne: Was moved to another position at the same grade in another Dept. (Human Resources) within the Medical Center. Still employed by the Carl T. Hayden VA Medical Center. Carol Wares: Voluntarily separated her employment. David Hardt: Temporary appointment expired. 35. Therefore, with the exception of Payne, all other employees reached some form of

a resolution. However, Payne by October 4, 2001, had rejected all reasonable offers and insisted on being transferred to one of five specific positions that she set forth on page 2 of the September 26, 2001 Memorandum form prepared by Rafael Martinez EXHIBIT 26; VanHaldren Declaration, pp 7-17. 1. Computer Specialist GS-7/9/11 2. Patient Representative GS-301-11 3. Administrative Officer GS-341-9/11/12 4. Personnel Management Specialist GS-201-9/11 5. Human Resources Specialist GS-230-9/11/12 ADDITIONAL REQUESTS FOR ADMISSION 36. In defendant's RTA # 21-24, 29, 30 and 31 the plaintiff was asked to admit that

there were no vacancies in these positions between September 1, 2001 and December 21, 2001. Further, that she could not be transferred to any of those positions as they were competitive positions under OPM rules. Further, that the OPM rules could only be suspended if the CTHVAMC were granted RIF authority. RIF authority was denied. Her response to RTA's 21-24, 29, 30 and 31 were evasive and incomplete. Therefore this Court must deem as admitted each of these RTA for failure to comply with the requirements of Rule 36, F.R.Civ.P. RTA #21. With reference to page two (2) ATTACHMENT B (Bates stamped RPD #007-000058), there are five VA employment positions that were, apparently, hand written by the plaintiff on or about October 4, 2001: 1. Computer Specialist GS-7/9/11 2. Patient Representative GS-301-11
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3. Administrative Officer GS-341-9/11/12 4. Personnel Management Specialist GS-201-9/11 5. Human Resources Specialist GS-230-9/11/12

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In accordance with the instructions on that document, the plaintiff she indicated she would accept one of these positions when her position of Vocational Rehabilitation Specialist was abolished. Please admit that to select or transfer the plaintiff for any of the listed positions would have required a competitive promotion or had promotion potential which would have required a competitive selection process. [Emphasis added] RESPONSE: DENIED. See document submitted to Plaintiff by Defendant, Bates Labeled 1st SET-RPD #007-000059. This is an evasive and incomplete response as this document is merely the notification of Payne's transfer to the Employee Relations Specialist GS-9 position, effective December 30, 2001 issued by John Fears, Medical Center Director. EXHIBIT 2. RTA 22. With reference to page two (2) of ATTACHMENT B (Bates stamped RPD #007-000058) , there are five VA employment positions that were, apparently, hand written by the plaintiff on or about October 4, 2001: 1. Computer Specialist GS-7/9/11 2. Patient Representative GS-301-11 3. Administrative Officer GS-341-9/11/12 4. Personnel Management Specialist GS-201-9/11 5. Human Resources Specialist GS-230-9/11/12 Please admit that between September 1, 2001 and December 31, 2001, that plaintiff would not have accepted any these alternative positions( five positions) at a pay scale level below GS-9, even with preservation of her employment and pay benefits (pay and grade retention) which she had already achieved during the stated time period. [Emphasis added] If denied, please state the factual basis for the denial and identify the witness(es) who will testify at the time of trial in support of your denial and identify any and all documents that you intend to, will or may rely upon or proffer at the time of trial, publish to the jury or seek to admit into evidence. RESPONSE: DENIED. See documents submitted to Plaintiff by Defendant, Bates Labeled 1st SET-RPD #007-000058. This is an evasive and incomplete response as this document is merely page two where Payne handwrote the positions for which she wished to be considered. Therefore,

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she must be deemed to have admitted this RTA. Rule 36 F.R.Civ.P. EXHIBIT 26.
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RTA #23. Admit that between September 1, 2001 and December 31, 2001 that there were no vacancies in the position of Computer Specialist GS-7/9/11. If denied, please state the factual basis for the denial and identify the witness(es) who will testify at the time of trial in support of your denial and identify any and all documents that you intend to, will or may rely upon or proffer at the time of trial, publish to the jury or seek to admit into evidence. RESPONSE: DENIED. See documents submitted in Defendat's discovery responses Bates Labeled 1st SET- INTERROGATORIES # 012-000006 and #012-000007. This is an evasive and incomplete response as these documents in fact

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demonstrate that as of September 4 and September 18, 2001 the position was not
8

available. There for Payne must be deemed to have admitted this RTA. Rule 36,
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F.R.Civ.P. Payne has the burden of proof that she was qualified for this position, that the
10

position was vacant and that OPM regulations did not prevent the defendant from
11

transferring her to that position. She has demonstrated that she has no evidence to
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support her allegations that one or more of the five positions was vacant. EXHIBIT 26.
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RTA # 24. Admit that between September 1, 2001 and December 31, 2001 that there were no vacancies at the CTHVAMC in the position of Patient Representative GS-30111. If denied, please state the factual basis for the denial and identify the witness(es) who will testify at the time of trial in support of your denial and identify any and all documents that you intend to, will or may rely upon or proffer at the time of trial, publish to the jury or seek to admit into evidence. RESPONSE: Plaintiff can neither admit nor deny. The information that is known and readily obtainable by Plaintiff is insufficient to enable the Plaintiff to admit or deny the request, for the reason that the underlying data required for an intelligent response is in the possession of the opposing party. This is an evasive and incomplete response . Therefore, Payne must be deemed to have admitted this RTA. Rule 36, F.R.Civ.P. EXHIBIT 26. Payne has the burden of proof that she was qualified for this position, that the position was vacant and that OPM regulations did not prevent the defendant from transferring her to that position. She has demonstrated that she has no evidence to support her allegations that one or more of the five positions was vacant. RTA #29. Admit that between September 1, 2001 and December 31, 2001 that there
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were no vacancies at the CTHVAMC in the position of Administrative Officer GS-3419/11/12. If denied, please state the factual basis for the denial and identify the witness(es) who will testify at the time of trial in support of your denial and identify any and all documents that you intend to, will or may rely upon or proffer at the time of trial, publish to the jury or seek to admit into evidence. RESPONSE: DENIED. Plaintiff can neither admit nor deny. The information that is known and readily obtainable by Plaintiff is insufficient to enable the Plaintiff to admit or deny the request, for the reason that the underlying data required for an intelligent response is in the possession of the opposing party. This is an incomplete and evasive response. This must be deemed an admission that the

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plaintiff has no evidence or witness testimony to present at the time of trial support her
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assertion that this position was available, vacant and that she was qualified for the
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position. Rule 36, F.R.Civ.P. Payne has the burden of proof that she was qualified for
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this position, that the position was vacant and that OPM regulations did not prevent the
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defendant from transferring her to that position. EXHIBIT 26.
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RTA #30. Admit that between September 1, 2001 and December 31, 2001 that there were no vacancies at the CTHVAMC in the position of Personnel Management Specialist GS-201-9/11 If denied, please state the factual basis for the denial and identify the witness(es) who will testify at the time of trial in support of your denial and identify any and all documents that you intend to, will or may rely upon or proffer at the time of trial, publish to the jury or seek to admit into evidence. RESPONSE: See documents submitted in Defendant's discovery responses Bates Labeled 1st SET-INTERROGATORIES #012-000005. This is an incomplete and evasive respnse as only a GS-11 position was available

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and Payne was not qualified for a GS-11 position. Further, Payne's answer indicates that
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she has no evidence or witnesses testimony to support her denial. Therefore, she must be
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deemed to have admitted this RTA. Rule 36, F.R.Civ.P. Payne has the burden of proof
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that she was qualified for this position, that the position was vacant and that OPM
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regulations did not prevent the defendant from transferring her to that position.
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EXHIBIT 26.
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RTA # 31. Admit that between September 1, 2001 and December 31, 2001 that there
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were no vacancies at the CTHVAMC in the position of Human Resources Specialist GS230-9/11/12 If denied, please state the factual basis for the denial and identify the witness(es) who will testify at the time of trial in support of your denial and identify any and all documents that you intend to, will or may rely upon or proffer at the time of trial, publish to the jury or seek to admit into evidence. RESPONSE: DENIED See documents submitted in Defendant's discovery responses Bates Labeled 1st SET-INTERROGATORIES #012-00004.1st SETINTERROGATORIES #012-00004. In effect she has admitted that there was a vacancy in this position. A position

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was open but only at the GS-9 level and this was the position she was transferred to
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effective December 31, 2001. EXHIBIT 2. Therefore, this was the only position
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available for which she qualified. Had Fears not transferred her to this position, she
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would have lost her employment with the CTHVAMC.
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37. RTA#35. Admit that between September 1, 2001 and December 31, 2001 that there were no vacancies at the CTHVAMC for any positions for which you possessed the minimum qualifications other than the GS-9 Employee Relations Specialist position to which you were reassigned to on December 4, 2001 by John R. Fears, Medical Center Director. ATTACHMENT D (Bates Stamp RPD #007-000059). If denied, please state the factual basis for the denial and identify the witness(es) who will testify at the time of trial in support of your denial and identify any and all documents that you intend to, will or may rely upon or proffer at the time of trial, publish to the jury or seek to admit into evidence. RESPONSE: DENIED. Plaintiff can neither admit nor deny. The information that is known and readily obtainable by Plaintiff is insufficient to enable the Plaintiff to admit or deny the request, for the reason that the underlying data required for an intelligent response is in the possession of the opposing party. This is an incomplete and evasive response. This must be deemed an admission that the plaintiff has no evidence or witness testimony to present at the time of trial support her assertion that any other positions were vacant and that she was qualified for such positions. Rule 36, F.R.Civ.P. Payne has the burden of proof that she was qualified for some other vacant this position and that OPM regulations did not prevent the defendant from transferring her to that position. EXHIBIT 26. 38. RTA #36. Admit that between September 1, 2001 and December 31, 2001 that had you not been reassigned to the GS-9 Employee Relations Specialist position, to
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which you were reassigned to on December 4, 2001 by John R. Fears, Medical Center Director. ATTACHMENT D (Bates Stamp RPD #007-000059), that you would have been terminated as a CTHVAMC employee as there were no other positions for which you qualified that were exempt from competitive selection. If denied, please state the factual basis for the denial and identify the witness(es) who will testify at the time of trial in support of your denial and identify any and all documents that you intend to, will or may rely upon or proffer at the time of trial, publish to the jury or seek to admit into evidence. RESPONSE: DENIED. See documents submitted to Plaintiff by Defendant, Bates Labeled 1st SET-RPD #007-000059. This is an incomplete and evasive response. The document she refers to is merely the

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Notice from Mr. Fears that she was being transferred. EXHIBIT 2. VanHaldren
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Declaration, pp. 15-17.This must be deemed an admission that had she not been
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transferred to the position by Mr. Fears she would have been terminated. Rule 36,
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F.R.Civ.P. Furthermore, the plaintiff has admitted that she has no evidence or witness
12

testimony to present, at the time of trial, to support her assertion that any other positions
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were vacant and that she was qualified for such positions and that OPM regulations did
14

not prevent the defendant from transferring her to that position.
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39. RTA #37. Admit that between September 1, 2001 and December 31, 2001 that had the CTHVAMC been granted Reduction in Force authorization that such authority would have permitted the facility to place you into a position that was otherwise unavailable under OPM regulations as such regulations are waived by the provisions of RIF regulations. If denied, please state the factual basis for the denial and identify the witness(es) who will testify at the time of trial in support of your denial and identify any and all documents that you intend to, will or may rely upon or proffer at the time of trial, publish to the jury or seek to admit into evidence. RESPONSE: DENIED Plaintiff can neither admit nor deny. The information that is known and readily obtainable by Plaintiff is insufficient to enable the Plaintiff to admit or deny the request, for the reason that the underlying data required for an intelligent response is in the possession of the opposing party. This response is contrary to evidence in the administrative record. EXHIBIT 28. VanHaldren Declaration, pp. 15-17. Furthermore, EXHIBIT 28 clearly demonstrates that she was given additional information by Lynn Woods-Hurd (ORM) and Horace Kendrick (ORM) who were available to answer any questions that arose in the Fall of
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2001. Payne knew or should have known of the benefits if RIF authority had been granted. In any event, this is an incomplete and evasive response. Payne must be deemed to have admitted this RTA. Rule 36, F.R.Civ.P. Furthermore, she has admitted that she has no evidence or witness testimony that will demonstrate that the reasons for her transfer by Mr. Fears to the Employee Specialist Position GS-9 was neither legitimate or a pretext for unlawful discrimination. To meet her burden of proof she is required to present admissible evidence. As she has none, she must be deemed to have admitted this RTA.

40. RTA #38. Admit that since January 1, 1994, the CTHVAMC has hired and/or promoted African-American females to positions at GS-9 and higher. If denied, please state the factual basis for the denial and identify the witness(es) who will testify at the time of trial in support of your denial and identify any and all documents that you intend to, will or may rely upon or proffer at the time of trial, publish to the jury or seek to admit into evidence. RESPONSE: DENIED :Plaintiff can neither admit nor deny. The information that is known and readily obtainable by Plaintiff is insufficient to enable the Plaintiff to admit or deny the request, for the reason that the underlying data required for an intelligent response is in the possession of the opposing party. This is an evasive and incomplete response. Rule 36 F.R.Civ.P. This RTA is based upon paragraphs 47 and 48 of the Amended Complainant. As Payne has demonstrated she has no competent evidence to support this allegation, it lacks a good faith basis. Therefore, paragraphs 47 and 49 of the Amended Complaint must be stricken and summary judgment granted to the defendant on these allegations. See also Rule 11 F.R.CIV.P. 41. RTA# 39. Admit that one of the OPM requirements for minimal qualifications for a GS-11position for a current employee, is one year time in grade at GS-9 and one year of specialized experience at the GS-9 level in the same area of expertise (Human Resources) as the GS-11position. If denied, please state the factual basis for the denial and identify the witness(es)who will testify at the time of trial in support of your denial and identify any and all documents that you intend to, will or may rely upon or proffer at the time of trial, publish to the jury or seek to admit into evidence.
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RESPONSE: DENIED. Refer to Qualifications Standards for General Schedule Positions of the Office of Personnel Management; Bates Labeled #00539#00545. Presumably this refers to one of plaintiff's discovery responses. However, the specific regulations are a matter of public record and were provided to her during the

5

administrative process. This document is attached as EXHIBIT 29. See also EXHIBIT
6

31; Judith Law Declaration, pp. 3-4, 8-20.
7

In any event, in response to defendants RTA, Payne has refused to demonstrate a
8

good faith basis for the allegations set forth in Paragraphs 39, 40, 41, 42, 43, 44 and 45of
9

the Amended Complaint. Further she has refused to identify admissible evidence to
10

support the allegations of these paragraphs. Furthermore, she has demonstrated in
11

response to the RTA s that the legitimate reasons set forth by the defendant regarding
12

the actions taken were pretextual. Therefore, the defendant is entitled to summary
13

judgment and dismissal of paragraphs 39, 40, 41, 42, 43, 44 and 45 of the Amended
14

Complaint.
15

ADDITIONAL CHARGES ADDED TO THE TRANSFER CASE
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42.
17 18

On March 4, 2002, the Plaintiff requested that the additional claims be added to

her formal EEO Transfer Case Complaint. EXHIBIT 30. Payne claimed that she suffered retaliation for prior EEO activity when (1) She was notified on February 11,
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2002 that she was not qualified for a Human Resources Management Specialist position
20

that she had applied for, (2) on February 20, 2002, when she was asked to log in and out
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when she left the HR department and was notified that her morning arrival and afternoon
22

departure times would be monitored and (3) she was asked to develop a training
23

program. An EEO Investigator was assigned to investigate Payne's revised EEO
24

complaint.
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HUMAN RESOURCES MANAGEMENT SPECIALIST SELECTION PROCESS 43. The Human Resources Management Service (HRMS) determined that they had a

need for a Human Resource Management Specialist (GS-11) within their department. As a result, they decided to fill the vacancy through a Vacancy Announcement. EXHIBIT 31. 44. Vacancy Announcement 2001-215C1, advertised the position. EXHIBIT 31. The

facility also advertised the position through an Open Continuous Announcement. 45. Open Continuous Announcement OC-9, sought potential candidates at two

different levels, a GS-9 Personnel Management Specialist and a GS-11 Personnel Management Specialist, both working in the Staffing and Pay Administration Section. The announcement listed a name and phone should an applicant need additional information. EXHIBIT 31. 46. Payne applied under Announcement No. 2001-215C1. Payne applied for the

Personnel Management Specialist GS-201-11 position. EXHIBIT 32. 47. After the close of the application period, the HR staff reviewed the applications

and compared the education and experience of each applicant to the minimum standards published by OPM. OPM has a general standard for Administrative and Management positions. EXHIBIT 31. 48. The OPM general standard for Administrative and Management positions

mandates that a candidate have either a Ph.D. or equivalent or three full years of progressively higher level education leading to such a degree, or one year of specialized experience equivalent to the GS-9 level to qualify for a GS-11 Human Resources Management Specialist position. EXHIBITS 29, 31; PONCE Declaration. 49. Judith A. Law, HR staff, reviewed Payne's application and her Official Personnel

Folder. Law determined that Payne did not have one year of specialized experience in Federal Human Resources functions required for the GS-11 position. EXHIBITS 29, 31, LAW Declaration, pp. 8-20; LIEBERMAN Declaration, pp. 22-26; MARTINEZ
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Declaration, pp. 14; PONCE Declaration. On February 11, 2002 Payne was notified that she did not meet the minimum requirements to be considered for this position. EXHIBIT 29. Payne's application also did not indicate that she had any higher level education. EXHIBIT 32. 50. Ms. Law also disqualified a female GS-12 Contract Specialist as well. LAW

Declaration, pp. 15-19. 51. Payne's claims the determination that she was not qualified was due to retaliation

for prior protected activity, However, Payne's allegations lack a good faith basis in law and fact. 52. When specifically requested to admit the OPM requirements for the GS-11

position, she failed to do so and her lack of qualifications must be deemed admitted. Rule 36, F.R.Civ.P. RTA # 39. Admit that one of the OPM requirements for minimal qualifications for a GS-11position for a current employee, is one year time in grade at GS-9 and one year of specialized experience at the GS-9 level in the same area of expertise (Human Resources) as the GS-11position. If denied, please state the factual basis for the denial and identify the witness(es) who will testify at the time of trial in support of your denial and identify any and all documents that you intend to, will or may rely upon or proffer at the time of trial, publish to the jury or seek to admit into evidence. RESPONSE: DENY, Refer to Qualifications Standards for General Schedule Positions of the Office of Personnel Management; Bates Labeled #00539-00545. This is an evasive and incomplete response to the RTA. Therefore, the plaintiff must be deemed as to have admitted that she failed to meet the minimum OPM requirements for the position. Rule 36 F.R.Civ.P. TRAINING PROGRAM 53. Payne claims retaliation because she was requested in January 2002 to develop a

training program prior to attending a meeting in San Francisco. However, both Max Avilez and Ginger Rich testified that since Payne was going to fill the position full-time there was no need for Ginger Rich or Sharon Heath to attend the conference. AVILEZ Declaration, pp 6-11; RICH Declaration, pp. 2-4. Furthermore, management wanted
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Payne to get the most out of the conference and requested her to prepare for the conference. LIEBERMAN Declaration, pp. 19-22.As Ginger Rich and Sharon Heath were only handling the OWCP duties part-time and in addition to their main assignments. Payne cannot establish that they were similarly situated and as a result cannot establish a prima facie case of retaliation. Therefore, this claim must be dismissed. LOG IN SHEET 54. Signing the daily "sign in sign out log" was required of all HR staff including

supervisory staff. Therefore , having to sign the log was not an adverse employment action or retaliation as a matter of fact and law. EXHIBIT 33; Avilez Declaration, pp. 11-19; Law Declaration, pp. 3-7; Lieberman Declaration, pp. 27-32; Martinez Declaration, pp. 15-18. PRIOR PROTECTED ACTIVITY 55. Payne submitted a document in the Transfer Case where she set forth her prior

protected activity. EXHIBIT 34. Respectfully submitted this 30th day of May, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on May 30, 2006, 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:

Rosval A. Patterson Attorney at Law Patterson & Associates, P.C. 777 East Thomas Road # 210 Phoenix, Arizona 85014 Attorney for plaintiff Dana Heck, Attorney Office of Regional Counsel Department of Veterans Affairs 650 East Indian School Road, Building 24 Phoenix, Arizona 85012-1839 3225 North Central Avenue, Room 305 Phoenix, Arizona 85012 s\ John R. Mayfield Office of the U.S. Attorney

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