Free Reply to Response to Motion - 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, Martha Slaughter-Payne 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.: CV 03-2300PHX ROS PLAINTIFF'S REPLY TO DEFENDANTS RESPONSE TO PLAINTIFF'S MOTION UNDER RULES 16, 37 AND 41 SANCTION OF PRECLUSION OF WITNESSES FOR FAILURE TO COMPLY WITH DISCLOSURE REQUIREMENTS

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Martha Slaughter-Payne, Plaintiff, by and through undersigned counsel, hereby replies to Defendant's Response. This Reply motion is supported by the following Memorandum of Points and Authorities filed concurrently herewith.

DATED this 21st day of April, 2005

Patterson & Associates, P.L.L.C. s/ Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Defendant

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MEMORANDUM OF POINTS AND AUTHORITIES I. ARGUMENT:

Donald Huckaby ("Mr. Huckaby"), Mike Jones ("Mr. Jones"), Mauricio G. Ponce ("Mr. Ponce") and Mike Dole ("Mr. Dole") must be precluded as agency witnesses. Rule 801(d)(2)(D) requires the proffering party to lay a foundation to show that an

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otherwise excludible statement relates to a matter within the scope of the agent's employment. Hoptowit v. Ray, 682 F.2d 1237, 1262 (9th Cir. 1982). For evidence to qualify as a vicarious admission, the proponent of the evidence must demonstrate that the evidence is "a statement by an agent or servant concerning a matter within the scope of employment, made during the existence of the relationship." Oki America v Microtech Int'l Inc, 872 F.2d 312, 314 (9th Cir 1989); FRE 801(d)(2). A vicarious admission must be made during the employment relationship; "statements made after the employment or agency has concluded do not qualify as vicarious admissions." Weissenberger's Federal Evidence § 801.18 (1987). Neither Mr. Huckaby, Mr. Jones, Mr. Ponce or Mr. Dole had a relationship with Plaintiff, nor were they present at the Carl T. Hayden's Veterans Administration Medical Center ("VA") during the discriminatory events that Plaintiff suffered from. None of these witnesses have any information relating to VA practices and procedures involving Information Resources Management Services policies, VA Human Resources policies, Evaluation Diversity Management & EEO during the time that Plaintiff was being discriminated against. Mr. Huckaby, Mr. Ponce and Mr. Dole have never been employed at the VA. As for Mr. Jones, he was the Former Chief of Information Resources Management Services THE VA, who retired before Plaintiff was hired at the VA. A statement is a vicarious admission only if it concerns "a matter within the scope of employment." Id. When a declarant has nothing to do with a decision of an employer,

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declarant's speculation about the employer's motives for that decision is not "within the scope of his agency and [is] made in his capacity as wiseacre only." Staheli v University of Mississippi, 854 F.2d 121, 127 (5th Cir 1988) (holding statements of a university professor not involved in a decision to deny another professor tenure not to be vicarious admissions of university); see also Cebula v General Electric Co, 614 F. Supp. 260, 266 (ND Ill 1985) (holding statements made by low level employees not involved in a decision to fire another employee not to be vicarious admissions of employer). Here, neither Mr. Huckaby, Mr. Jones, Mr. Ponce nor Mr. Dole were involved in VA's decision to deny Plaintiff her promotions, witness to retaliation or VA's decision to conduct a one person RIF involving Plaintiff. Their statements are therefore not vicarious admissions. Defendant must demonstrate that the employment of these witnesses by THE VA existed at the time the statements were made. Oki America v Microtech Int'l Inc, 872 F.2d 312, 314 (9th Cir 1989). Employment of these witnesses at the time the statements were made is a fact Defendant has not and cannot establish. Thus, Defendant has failed to demonstrate that the proffered testimony concerned a matter within the scope of the witnesses' employment. Defendant is merely offering expert testimony disguised as lay testimony to prove the truth of the matters asserted therein. inadmissible hearsay and must be correctly excluded. Even ignoring the hearsay nature of these statements, however, the court should find that the testimony is not probative. For instance, Mr. Dole, whose title is listed by Defendant as Director, Workforce Analysis Evaluation Diversity Management & EEO (06), is attempting to testify to statistical analysis of minority employment and all related aspects of employment at the VA. Policies, procedures, policies, practices and procedures... However in Interrogatory #7, Defendant denied the very existence of any EEO or Affirmative Action Reports: The testimony is

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INTERROGATORY NO. 7: During the period since May 1, 1994 through the date of your response, have any affirmative action plans, upward mobility plans, or other similar policies existed that have applied to you? If your answer is "yes," please identify who maintains authority over

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implementation of such plans or policies and produce copies of each such affirmative action plan, upward mobility plan, or policy and all related documents including but not limited to the following: (a) All target position under such plan (b) List applicants that applied by race (c) List applicants selected by race

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Both Mr. Huckaby, and Mr. Jones, are attempting to testify to VA Information Resources Management Services policies, practices and procedures... However, Richard Moore was the person in charge of VA Information Resources Management Services

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who made all of the selecting decision involving Plaintiff's discrimination and retaliation claims. Mr. Ponce, whose title was listed by Defendant as HRM Service Chief WJB Dorn VAMC 6439 is attempting to testify to VA Human Resources policies, procedures and practices. However, Rafael Martinez, was the person in charge of VA Human Resources during the period of Plaintiff discrimination and one person RIF, and made all of the

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hiring decisions involving Plaintiff's discrimination claims. These circumstances call for little weight to be accorded this evidence.

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Defendant relies on cases that have been overturned when they state their position that information gained from work experience in the Departments of Veterans Affairs is admissible. Defendant relies on Rice v. Kempker, 374 F.3d 675 (8th Cir. 2004), where

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Plaintiff clergy and a religious organization sought a declaratory judgment and an injunction to prevent the enforcement of the Missouri Department of Corrections' (DOC) no-camera in the execution chamber policy arguing it violated their First Amendment rights of public access. The United States District Court for the Eastern District of Missouri disagreed and granted summary judgment for Defendant DOC officials. This case has nothing to do with agency testimony.

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Defendant relies on Soden v. Freightliner Corp., 714 F.2d 498, 510-12 (5th Cir. 1983) which held that where experienced mechanic had personally observed aftermath of several truck accidents, he was permitted under Fed. R. Evid. 701 to testify to opinion that particular design feature had caused the accidents and generally were dangerous. However this issue was settled in 2000, when Congress amended Fed. R. Evid. 701 to

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address expressly the concerns and debate about the meaning of the rules. Following the
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2000 amendment, Fed. R. Evid. 701 expressly states that lay witnesses may not offer testimony that is "based on scientific, technical or other specialized knowledge within the scope of Rule 702." The Advisory Committee's note to Rule 701 states that "Rule 701 has been amended to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness

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clothing." As amended, the Rule reads as follows: "If the witness is not testifying as an expert, the witness' testimony in the form of

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opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical,

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or other specialized knowledge within the scope of Rule 702." Ragland v. State, 385 Md. 706, 722 (Md. 2005) (Superseding Soden by statute.). Richard Moore and Rafael Martinez must be prohibited form testifying. The purpose of Rule 37 sanctions is to both "'penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent.'" Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 65 L. Ed. 2d 488, 100 S. Ct. 2455 (1980) (quoting Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 49 L. Ed. 2d 747, 96 S. Ct. 2778 (1976)); United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1368 (9th Cir. 1980).

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Based on Defendants dilatory practices Richard Moore and Rafael Martinez must be prohibited form testifying. II. CONCLUSION

For the foregoing reasons it is respectfully requested that Defendant's witnesses Donald Huckaby, Mike Jones, Mauricio G. Ponce, Mike Dole, Richard Moore and Rafael Martinez be stricken.

Respectfully submitted, this 21st day of April, 2006 Patterson & Associates, P.L.L.C.

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s/Rosval A. Patterson
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Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on the 21st day of April, 2006, I electronically transmitted that attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing for the following CM/ECF registrants: [email protected] [email protected] A copy of this document was provided by Mail to: The Honorable Judge Roslyn Silver United States District Court 401 West Washington Courtroom 604 Phoenix, AZ 85003 By s/Stephanie Coulter

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