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, v. Plaintiff, CIV-03-2300-PHX-ROS REPLY TO RESPONSE TO DEFENDANT'S MOTION TO STRIKE Secretary, Department of Veterans Affairs,
Anthony Principi, Secretary, Department of Veterans Affairs, Defendant. The defendant, R. James Nicholson,
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by and though undersigned counsel respectfully submits his Reply to plaintiff's Response to the Motion to Strike the assertions and arguments set forth on page 6 of plaintiff's Reply ( Docket Entry # 74 dated 1/30/2006) to Defendant's Response to Plaintiff's Motion for Sanctions for Destruction of Evidence. This Reply is supported by the attached Memorandum of Points and Authorities and other matters of record. Respectfully submitted this 7th day of March, 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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On January 1, 2005 R. James Nicholson replaced Anthony Principi as the Secretary of the Department of Veterans Affairs. See, Rule 25(d)(1), F.R.Civ.P. 1
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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION The defendant filed a narrowly focused Motion to Strike. The only issue presented to the Court was defendant's request to strike the following paragraph which appeared on page 6 of plaintiff's Reply to Defendant's Response to Plaintiff's Motion for Sanctions for Destruction of Evidence (Docket Entry # 74, 1/30/06): C. EEO REGULATIONS REQUIRED THAT THE PVA FILES BE PRESERVED. On July 14, 1999 the EEO Investigator of the Plaintiff's EEO Case 98-3542 determined that Plaintiff was non-selected and retaliated against because of her prior EEO Activity. Under the Aggrieved Assertions section, (See, Defendant's Exhibit E, Attached as Exhibit #7.) the EEO investigator states that the aggrieved submitted a list of twentytwo positions that she has applied for at the Medical Center within the Past two years. (See Defendant's Exhibit A Attached as Exhibit #8) The EEO Investigator makes her decision based on those denials. Defendant presents Exhibit P as evidence that Defendant appeal [sic "plaintiff's appeal"] was denied on May 31, 2000.Under RCS 10-1 05-24 EEO (Equal Employment Opportunity) Records Section a: Cases resolved within the agency, by EEOC, or by a U.S. Court are to be destroyed four (4) years after resolution of case. Therefore, under the regulation the Defendants (sic) should be in possession of EEO case 98-3542 complaints with related correspondence reports, exhibits, withdrawal notices, copies of decisions, records of hearings and meetings, and other records like the PVA's in question. These documents should not have been destroyed until after May 31, 2004. Plaintiff filed her Amended Complaint December 1, 2003. Plaintiff served her complaint on the Defendant March 8, 2004. Defendant had no right to destroy the files in the summer of 2002.[Emphasis added].Reply at page 6 lines 3 through 22. I. These assertions lack a good faith basis and were presented without a reasonable inquiry. Plaintiff's Reply fails to address the following issues: 1. The defendant has not destroyed the administrative file in Case number 983542. Plaintiff's repeated statements that this file has been destroyed are false. Case files No. 98-3542 and No. 99-1321 have been preserved. The plaintiff was advised in June, 2005, that these and other files were available for inspection pursuant to Rule 33(d) and 34, F.R.Civ. P. As neither she nor her attorney requested to inspect any file proffered by the defendant, the plaintiff is not in a position to make valid representations to this Court regarding the contents of the administrative record in Cases # 98-3542 and #99-1321.
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2. The attachments to Docket Entry # 73, dated January 23, 2006, placed the plaintiff on notice as to the allegations and issues presented in: (1) Case # 98-3542, synopsis at paragraphs 1 through 5, Exhibits A through D and, (2) Case #99-1321 synopsis at paragraphs 6 through 7 , Exhibits E though I. [End note 1 ]. Plaintiff counsel offers no explanation for his deceptive and deliberate misstatements regarding the contents of these two distinct employment discrimination cases filed by his client. 3. Exhibit B, Case # 98-3542 above, signed by her, establishes that the plaintiff formally withdrew her allegations regarding the prior 22 non-selections for a computer specialist positions. Likewise, Exhibit G establishes that Case # 99-1321, the only case wherein she raised the alleged 22-non-selections as evidence of unlawful discrimination, was dismissed . She neither filed an administrative appeal nor an action in District Court seeking relief from this adverse decision. 4. Her Response fails to demonstrate either a factual or legal basis for the deceptive and deliberate misrepresentations set forth on page 6 of Docket Entry # 74. [End
Note
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]. Plaintiff merely ignores the obvious fact that she improperly "mixed" these two
separate discrimination complaints together in an improper effort to further obfuscate the facts and the defendant's arguments. 5. Furthermore, plaintiff's counsel has not offered any evidence that he made these assertions, on page 6, after a reasonable inquiry into the facts and/or law. In fact, plaintiff's Response contains irrelevant, impertinent and improper discussions of other matters which are presently pending before this Court . These matters are irrelevant to and clearly exceed the narrow scope of the defendant's Motion to Strike. There are only two legitimate responses to the Motion to Strike: 1. Present the Court with a Response demonstrating that defense counsel was the one in error and submit admissible evidence to refute the matters raised in the Motion to Strike. 2. Apologize to the Court, and either correct her errors or withdraw the assertions on page 6 of Docket Entry # 74. Therefore, as the Response is without merit, the defendant respectfully requests the
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Court to grant the Motion to Strike and for any other relief that the Court may deem appropriate. II.
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OTHER MATTERS RAISED IN THE RESPONSE
Should the Court determine a need for the defendant to address matters raised in the Response that are outside the narrow scope of the Motion to Strike, the defendant offers the following for the Court's consideration. Response at: 1. Page 3, lines 7-9: Defendant has not disclosed when and the manner of destruction of the PVA's Please see, Docket Entry # 67 at exhibits 9 and 10 affidavits of Belen Bautista and Tom Zacher filed by plaintiff on December 6, 2005. [End Note 3 ] 2. Page 3, lines 18-19, EEO case file 98-3542 and the related case file should not have been destroyed. Defense counsel has been advised by the Records Center at the Department of Veterans Affairs Office of Resolution Management, 11301 Wilshire Blvd.Building 220, 2nd Floor Los Angeles, CA 90073, that Case file # 98-3542 and Case file # 99-1321 have been preserved and are available for inspection at that location at a time convenient to all parties. Plaintiff was so advised back in June, 2005. 3. Page 3, lines 19-20;Page 4 lines 16-19, "Defendants (sic)
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have failed to
prove that they (sic) have served Plaintiff with notice that her appeal had been dismissed." "Plaintiff was not served notice that her appeal had been dismissed." "Additionally, it is Plaintiff's position that Defendant's (sic) were (sic) unaware of the courts (sic) decision denying her appeal until they pulled it on Westlaw in 2006 to respond to Plaintiff's motion." The U.S. Equal Employment Opportunities Commission, Office of Federal Operations (OFO) decision dismissing the plaintiff's appeal, as untimely, in Case No. 98-
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See also, Local Rule Civil 7.2(I).
The Secretary of the Department of Veterans Affairs in the sole defendant. 42 U.S.C. 2000e-16(b)(1)(c).
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3542 was issued on May 31, 2000 nearly six (6) years ago. EXHIBIT P Docket Entry # 73. The OFO mailed a copy of this decision to the defendant in a letter postmarked June 1, 2000. See Declaration, and attached EXHIBITS A and B. and mailing certification of Toni Barnes at page 3.The OFO is an independent Title 42 federal agency and not affiliated with the Title 38 Department of Veterans Affairs. Further, the OFO is not a party to this litigation. As the same notice was mailed by the OFO to the plaintiff at her address of record, the burden is upon her to rebut the presumption of receipt. Declaration EXHIBIT B, page 3 certificate of mailing. The "mail box rule" states that a proper and timely mailing of a document raises a rebuttable presumption that it is received by the addressee. Anderson v. United States, 966 F.2d 487, 491-92 (9th Cir.1992) (citing Rosenthal v. Walker, 111 U.S. 185, 193-94 (1884)). The burden of rebuttal rests on the plaintiff. Her argument that the Secretary of the Department of Veterans Affairs had a duty to mail her a copy of the Dismissal of the Appeal is specious. Her assertion that even after nearly six years her "Appeal is still active"(p.5,l. 17), and that the 90 day limitation to file a lawsuit has been tolled, based on equitable estoppel, is absurd. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 93, 96 (1990)(Only garden variety excusable neglect); Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984); Scholar v. Pacific Bell, 963 F.2d 264, 267-68 (9th Cir. 1992). The fact that the defendant received his copy demonstrates that the plaintiff also received hers. The 90 day limitation of filing an action in District Court expired on August 30, 2000. Furthermore, she is not an "uniformed" pro se EEO complainant. It remains her position, in this litigation, that she is well versed and experienced in EEO matter and the administrative process as she has represented numerous other VA employees in their administrative proceedings. She has also alleged that the defendant has retaliated against her because of this protected activity. So either she is well aware of the process and the obligation to make reasonable and periodic inquiry into the status of a EEO case or an EEOC appeal, or she is not. In any event, her specious arguments are
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contrary to well established law. Alaska Limestone Corp. v. Hodel, 799 F2d 1409, 141112( 9th Cir. 1986(Due diligence). Finally the defendant advised the plaintiff on June 16, 2005, in response to Interrogatory # 12 of plaintiff counsel's April 14, 2005 informal discovery request, all of plaintiff's EEO cases were closed with the exception of one case. Plaintiff counsel represents the plaintiff in this remaining EEO complaint. See EXHIBIT C. Therefore plaintiff's assertions that "The appeal is still active" in #98-3542 is simply false (p.5, l. 17). 4. Plaintiff's arguments set forth in Section D of the Response at page 5, lines2025, page 6, lines1-12. Such arguments are well beyond the narrow scope of the Motion to Strike. Furthermore, the issued raised by section D of the Response are currently pending before this Court in previously filed motions See Docket Entries # 36, 48, 73. 5. Plaintiff's arguments set forth in Section E of the Response at page 6, lines 1425, page 7, lines 1-25,page 8, lines 1-25and page 9, lines1-2, Such arguments are well beyond the narrow scope of the Motion to Strike. Furthermore, the issue raised by section E the Response are currently pending before this Court in previously filed motions See Docket Entries # 36, 48. 6. Page 8, lines 23-25. " As you can see Defendant has never disclosed Title I of Public law 105-114, The Veterans Benefit Act of 1997. It is clearly being used as ruse on the court to show that there is some other authority for the destruction of the PVA files in question." [Emphasis added]. Defendant merely mentioned Title I Public Law 105-114 became effective on November 21, 1997 and that the Department of Veterans Affairs, Office of Resolution Management became operational on February 1998. [ End Note 4 ] The defendant mentioned this legislation in paragraph 24, lines 14-19,Attachment #1 Exhibit Summary to Docket Entry # 73, dated January 23, 2006. Plaintiff raised no objections in her Reply Docket Entry # 74 or her Motion to Strike Docket Entry # 75, both dated January 30, 2006. [ End Note 5].
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As this legislation modified the process whereby VA employees' claims of employment discrimination were investigated, there is no "ruse" (Response, page 8, line 24). A review of this public law indicates that it does not provide "authority for the destruction of the PVA files in question." (Response, page 8, line 24-25). In fact, the relevant statutory provisions do not even mention VA records management. However, the plaintiff has not controverted the fact that PVA files are developed by the Human Resource/Personnel Department and that employment discrimination administrative and investigative files are created by the VA Office of Resolution Management. Nor has she controverted the fact that the VA systems of records distinguishes between personnel records and employment discrimination investigation records with respect to record retention and destruction policies. Finally, a party is not required to supply the Court with the full text of federal statutes. CONCLUSION For the foregoing reasons, Section C on page 6 of the plaintiff's Reply [Docket Entry # 74] must be stricken from the record. Respectfully submitted this 7th day of March, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s\ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney
ATTACHMENT:
END NOTES
1. Docket Entry # 73 - filed 1/23/06 - Response ( by defendant) to Motion re Docket Entry #67 Motion for Sanctions against Defendant for Destruction of Evidence (Attachments: #1 Exhibit Summary, # 2 Exhibit A, B# Exhibit C # 4 Exhibit D, #5 Exhibit F, H, I #7 Exhibit J, K, L # 8 Exhibit M # 9 Exhibit N # 10 Exhibit O, P #11 Exhibit Q Exhibit R. 2. Docket Entry # 74 - filed 1/30/06- Reply (by plaintiff) to Response to Motion re Docket Entry # 67 Motion for Sanctions against Defendant for Destruction of Evidence.
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3. Docket Entry # 67 - filed 12/6/05 - Motion for Sanctions (by plaintiff) against Defendant for Destruction of Evidence. 4. Veterans' Benefits Act of 1997 (Pub.L. 105-114, Nov. 21, 1997, 111 Stat. 2277) Section of Pub.L. 105-114 USCA Classification
101 ............................................ 38 USCA § 516 102 ............................................ 38 USCA § 319 202(a) ......................................... 38 USCA § 1771 202(a) ......................................... 38 USCA § 1772 202(a) ......................................... 38 USCA § 1773 202(a) ......................................... 38 USCA § 1774 208 ............................................ 38 USCA § 7322 404(b) ......................................... 38 USCA § 1806
CERTIFICATE OF SERVICE I hereby certify that on March 7, 2006, I electronically transmitted the attached document as associated attachments 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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