Free 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 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

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PLAINTIFF RESPONSE TO DEFENDANTS MOTION TO STRIKE PAGE 6 OF PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SANCTIONS FOR DESTRUCTION OF EVIDENCE

Plaintiff respond to Defendants Motion to Strike page 6 of Plaintiff's Reply to Defendant's Response to Plaintiff's Motion for Sanctions for Destruction of Evidence. This motion is supported by the following Memorandum of Points and Authorities filed concurrently herewith. DATED this 24th day of February, 2006 Patterson & Associates, P.L.L.C. s/ Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES I. A. ARGUMENT. PLAINTIFF'S ASSERTATIONS ON PAGE 6 ARE PRESENTED IN GOOD FAITH. There is only one system for the control of records. The Veterans Health Administration (VHA) Records Control Schedule 10-1 provides disposal authorities for VHA general and administrative records and program records. (See VHA Records Control Schedule 10-1 attached as Exhibit #1.) The Disposal authorities were issued by the National Archives and Records Administration for records that were appraised to determine their record retention value. The following Regulations apply to the destruction of the PVA Checklist; Position Description; Vacancy Announcement; Crediting Plans or Rating Guides; VAF 4078 and /or Application; Employee Supplemental Experience Statement; Record of Qualification Determination; Notification Memorandums/Letters; Certificate of Eligible and Quality Assurance Data Sheet: RCS 10-1 05-30 Section Merit Promotion Case File: Records relating to the promotion of an individual that document qualification standards, evaluation methods, selection procedures, and evaluation of candidates are to be destroyed after OPM audit or two (2) years after the personnel action is completed, whichever is sooner. RCS 10-1 05-24 EEO (Equal Employment Opportunity) Records Section a: Official Discrimination Complaint Case Files: Originating agency's file containing complaints with related correspondence reports, exhibits, withdrawal notices, copies of decisions, records of hearings and meetings, and other records as described in 29 CFR 1613.222. Cases resolved within the agency, by EEOC, or by a U.S. Court are to be

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destroyed four (4) years after resolution of case.
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RCS 10 05-19 Section b: Destruction of a Position Description: Record copy of
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position descriptions, which include information on title, series, grade, duties and
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responsibilities, and related documents are to be destroyed two (2) years after position is abolished or description superseded. RCS 10-1 05-24 Section c: Destruction of background records not filed in the Official Discrimination Complaint Case Files are to be destroyed two (2) years after final resolution of the case. None of the above regulations allow for the destruction of the PVA files requested by the Plaintiff. It is important to note that Defendant have not disclosed as to when the PVA's were destroyed or to the manner of destruction. Thus, it is not simply a matter that

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the Defendant should have reasonably anticipated that the evidence would be needed, but
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rather that the evidence should have been maintained under normal practices 1 in any event, even preceding the knowledge that the evidence would be needed for litigation. It's disappearance under these circumstances is even more troublesome.

B.

VHA RECORDS CONTROL SCHEDULE 10-1 REQUIRED THAT THE PVA FILES BE PRESERVED. RCS 10-1 05-24 EEO (Equal Employment Opportunity) Records Section a: read

in conjunction with RCS 10-1 05-24 Section c clearly show that EEO case file 98-3542 and the related case file should not have been destroyed. Defendants have failed to prove that they have served Plaintiff with notice that her appeal had been dismissed. A Title VII claimant must fulfill several filing requirements in order to bring a civil action in federal

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district court. Among these, an action must be filed within 90 days of the issuance of a
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right to sue letter by the EEOC. 42 U.S.C. § 2000e-5(f)(1). The 90-day period for filing
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commences when the plaintiff receives the right to sue letter from the EEOC. Norris v.
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1 VA Handbook 6300.1, 7. DESTRUCTION OF RECORDS. b and c. Records with restrictions (PVA files) must be witnessed by a federal employee or a contractor employee. (Attached as Exhibit #2) Defendants should have maintained the witness statement that would show the date and manner of destruction. Without this document one could be lead to believe that the documents were destroyed primarily to prevent them from being used in litigation.

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Florida Department of Health and Rehabilitative Services, 730 F.2d 682 (11th Cir. 1984); Plunkett v. Roadway Express, Inc., 504 F.2d 417 (10th Cir. 1974). The 90-day filing requirement is a statute of limitations, and not a jurisdictional bar to bringing suit. Valenzuela v. Kraft, Inc., 801 F.2d 1170 (9th Cir. 1986); See Zipes v. Trans World Airlines Inc., 455 U.S. 385, 398 (1982) (indicating that 90-day filing requirement under Title VII is not jurisdictional). Therefore, a failure to file within the time limit is not necessarily fatal to the suit: it may be excused under equitable doctrines such as waiver or tolling. Valenzuela, 801 F.2d at 1172. Equitable tolling is applicable in employment discrimination cases filed by federal employees. Williams-Scaife v. Department of Defense Dependent Sch., 925 F.2d 346, 348 (9th Cir. 1991). Whether or not a plaintiff will be excused from late filing is determined by the purpose of the statute, the due diligence demonstrated by the plaintiff in filing the suit, and the sufficiency of the notice to the defendant. Id. at 1175. Equitable tolling has excused late filings where the plaintiff had inadequate notice of the EEOC's determination, where the plaintiff was led to believe that he or she had done everything required, and where the affirmative misconduct of the defendant lulled the plaintiff into inaction. Id. at 1178-84. Plaintiff has not been served notice that her appeal had been denied. Additionally, it is Plaintiff's position that Defendant's were unaware of the courts decision denying her appeal until they pulled it on Westlaw in 2006 to response to Plaintiff's motion. Had Defendants maintained the file in accordance with Records Control Schedule 10-1, EEO case file 98-3542 and the related PVA files would still be available and produced. C. DEFENDANT'S MOTION IS ANOTHER ATTEMPT TO EXCEED THE PAGE LIMIT IN RESPONSE TO PLAINTIFF'S MOTION FOR DESTRUCTION OF EVIDENCE.

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Defendant's motion is clearly an attempt to add another argument as why the court should deny Plaintiff's motion for Sanctions for Destruction of Evidence. Federal courts routinely warn litigants and attorneys not to evade page limits. United Automobile, Aerospace & Agricultural Implement Workers v. NLRB, 902 F.2d 40, 1990 WL 61309, at 4 (9th Cir. 1990). Defendant's motion to strike is rearguing Plaintiff's motion for Sanctions for Destruction of Evidence paragraphs: 2. THE PRESENCE OF WILLFULNESS, BAD FAITH, OR FAULT and 4. THE RELATIONSHIP BETWEEN THE MISCONDUCT AND THE MATTERS IN CONTROVERSY. In paragraph 2 plaintiff outlined how the VHA's Records Control Schedule 10-1 provides disposal authorities for VHA general and administrative records and program records. And that the Disposal authorities were issued by the National Archives and Records Administration for records that were appraised to determine their record retention value. In paragraph 4 Plaintiff outlined Defendant relationship and that they were under a Second notice: On July 14, 1999 [sic ­ date was April 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. Plaintiff appealed the finding based on race, color and sex. The Appeal is still active. The Motion to strike is attempting to add additionally argument in there areas which would exceed the page limit. D. DEFENDANTS ARGUMENT IS MERELY ANOTHER ATTEMPT TO OBJECT TO THE PRODUCTION OF DOCUMENTS WHEN THEIR OBJECTIONS HAVE BEEN WAIVED. On October 4, 2004, Plaintiff submitted twenty-three Interrogatories to Defendant. On November 8, 2004, Defendant answered Plaintiff's Interrogatories. Defendants answered Fifteen (15) interrogatories, Defendant objected to eight (8) of the Interrogatories. Of the Fifteen Interrogatories answered by the Defendant, their answers
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were incomplete, evasive and insufficient. For example, they completely failed to provide any answers or responses to the subparts. The names of their employees were redacted and several documents that are a matter of public record were either omitted or redacted when they should not have been. After Plaintiff sent out several requests by phone calls, letters, stipulated Protective Order and a Mediator order, the Defendants, after waiting almost ten (10) months, on June 16, 2005 submitted several objections for not providing the answers or requested Documents. Fed. R. Civ. P. 33 (b) (4) states that any grounds not stated in a timely objection are waived unless the party's failure to object is excused by the court for good cause shown. The court has already agreed with Plaintiff that Defendants have waived their objections. This is merely an attempt to use a motion to strike as a way to object to the production of evidence. E. TITLE I OF PUBLIC LAW 105-114, THE VETERANS BENEFIT ACT OF 1997 HAS NEVER BE DISCLOSED. Plaintiff requested as early as April 12, 2005, (See Mediator requested Letter

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Attached as Exhibit #3), that defendant produces all documents that provide authority for destruction of the PVA files in question. 19. Position Vacancy Announcements file folders consist of: (a) A copy of the Vacancy Announcement. (b) Rating and/or Crediting Plan. (c) VAF 5-4078 or TWX (d) Request for KSAO's (e) Request for supervisor's appraisal. (f) VAF 5-4667b (g) VAF 5-4676a
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(h) Qualification Determination Form (i) Merit Promotion Certificate (j) VAF 5-179s (k) Selection Notice for Posting (l) Quality Assurance Data Sheet. Please provide Plaintiff with the complete file folder for the following Position Vacancy Announcements: (a) 97-175B1 (b) 97-148B1 (c) 97-139B1 (d) 97-137B1 (e) 97-115B1 (f) 97-068B1 (g) 98-204B1 (h) 98-165B1 (i) 98-166B1 (j) 98-105B1 (k) 98-114B1 (l) 98-060B1 (m) 98-028B1 (n) 98-007B1 (o) 99-023B1 (p) 2000-279B1 (q) 2001-020B1 (r) 2001-169C2 Computer Specialist, GS-334-9/11 Computer Specialist, GS-334-9/11 Computer Specialist, GS-334-9 Computer Specialist, GS-334-7/9 Computer Specialist, GS-334-9/11 Computer Specialist, GS-334-9/11 Computer Specialist, GS-334-9/11 Computer Specialist, GS-334-9/11 Computer Specialist, GS-334-7/9 Computer Specialist, GS-334-9/11/12 Computer Specialist, GS-334-7/9 Computer Specialist, GS-334-7/9/11 Computer Specialist, GS-334-9 Computer Specialist, GS-334-7/9 Computer Specialist, GS-334-5/7/9 Computer Specialist, GS-334-7/9/11 Computer Specialist, GS-334-7/9//11 Computer Specialist, GS-334-7/9/11
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If you are unable to produce the Position Vacancy Announcements, please state the location of the documents. If the documents have been destroyed, please provide: (a) Date of destruction; (b) Person who destroyed the documents; (c) Under what authority were the cases destroyed? For instance, was the document destroyed according to a C.F.R., an RCS or any other authority which allows for the destruction of documents? In response to question 19 Defendant answered (See Defendants Response to Plaintiff's Letter Dated June 16, 2005 Attached as Exhibit #4):

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 a ruse on the court to show that there is some other authority for the destruction of the PVA files in question.

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Additionally, it is disingenuous to cited Title I of Public Law 105-114 and fail to attach a copy of the authority for the court to review. II. CONCLUSION. For the reasons adduced and outlined above this Court should deny Defendant's Motion to Strike page 6 of Plaintiff's Reply to Defendant's Response to Plaintiff's Motion for Sanctions for Destruction of Evidence.

Respectfully submitted this 24th day of February, 2006

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

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CERTIFICATE OF SERVICE I hereby certify that on the 24th day of February, 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 U.S. 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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