Free Motion to Strike - 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, v. Plaintiff, CIV-03-2300-PHX-ROS DEFENDANT'S MOTION TO STRIKE

Anthony Principi, Secretary, Department of Veterans Affairs, Defendant.

The defendant, R. James Nicholson, 1/ Secretary, Department of Veterans Affairs, by and though undersigned counsel respectfully moves pursuant to Rule 12(f), F.R.Civ.P. 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. The defendant's Motion to Strike said portions of plaintiff's Reply is supported by the attached Memorandum of Points and Authorities and other matters of record. 2/

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.

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The failure to object or failure to move to strike defective pleadings, allegations, and/or affidavits during pretrial proceedings waives such defects; permits the trial court to consider such matters and precludes review of such matters on appeal. Klingman Indemnity Co., 317 F.2d 850, 854 (7th Cir. 1963); Associated Press v. Cook, 513 F.2d 1300, 1303 (10th Cir. 1975); Williams v. Evangelical Retirement Homes, 594 F. 2d 70l, 703-04 (8th Cir.1979); Scharf v. United States Attorney General, 597 F.2d 1240, 1243 (9th Cir.1979); Davis v. Sears, Roebuck and Co., 708 F.2d 862, 864 (lst Cir. 1983); In Re Teltronics Services Inc., 762 F.2d 185, 192 (2nd Cir. 1985).
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Respectfully submitted this 9th day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION The plaintiff has made the following assertions and arguments her 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 Motion for Sanctions, Docket Entry # 67, dealt solely with the alleged unlawful destruction of Position Vacancy Announcement (PVA) records prepared by CTHVMC Human Resource/Personnel Department. Plaintiff did not accuse the defendant of the "unlawful destruction" of the
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administrative/investigative file in case # 98-3542 (aka Case no. 200P-1543 and 200P0644-2001123655). In fact, these new representations to the Court are not only false but constitute a material misrepresentation of the record in this matter. First and foremost, we are discussing two entirely distinct and separate systems of records that address entirely different documents: personnel records versus employment discrimination investigations records. PVA files are developed by the Human Resources/Personnel Department. Employment discrimination administrative and investigative files are created by the Office of Resolution Management (ORM). Title I of Public Law 105-114, the Veterans' Benefit Act of 1997. The plaintiff improperly mixes these two separate and distinct systems of records I and two separate discrimination complaints filed by his client, an effort to further obfuscate the defendant's arguments and the facts in this litigation. The arguments on page 6 assert that the twenty-two non-selections and associated documents including PVA files, ("... and other records like the PVA's in question.")WERE collected and investigated in case #98-3542, and were a part of the appeal in that case. Therefore, plaintiff argues, all of the documents and other evidence in the administrative and investigative files in case #98-3542 were unlawfully destroyed by the defendant in the summer of 2002. Reply, page 6,lines 21-22. Particularly troubling are the following misstatements: 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 twenty-two 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. [Emphasis added]. Plaintiff counsel has, in this paragraph, improperly combined two distinct
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employment discrimination claims filed by his client (case # 98-3542 and case # 991321). On January 23, 2006, the defendant filed a synopsis which specifically detailed the events regarding cases #98-3542 and # 99-1321. The plaintiff has moved to strike this synopsis. As these events were carefully spelled out and tied into specific defense exhibits, plaintiff's counsel may not claim "confusion" when he wrote the paragraph on page 6. " On July 14, 1999"- the Counselor's Report in #98-3542 is in fact dated November 23, 1998. (Defense EXHIBIT A not E (case # 99-1321) - as alleged in the Reply at page 6, line 8. See, Paragraph 1, Defendant's Exhibits in Support of his Response to Plaintiff's Motion for Sanctions ("Synopsis"). This November 23, 1998 Report does not state that the "aggrieved submitted a list of twenty-two positions that she has applied for at the Medical Center within the past two years." Furthermore, the "Investigative Summary and Analysis In the Matter of the EEO Complaint of Discrimination" in case # 98-3542, which is dated July 14, 1999 ( See Defense EXHIBIT C, see, paragraph 3 of the "Synopsis") does not contain the phrase " aggrieved submitted a list of twenty-two positions that she has applied for at the Medical Center within the past two years" nor does it mention or refer to such events. The Counselor's Report in #99-1321 (Defense EXHIBIT E, see, paragraph 6 of the "Synopsis" ) is dated April 14, 1999 and does, on page 2, contain the following: "She went on to state that she has applied for at least twenty two vacant positions within the past two years at the Medical Center. She stated that she has been qualified for all the positions and yet, not selected for any of them." However, as the plaintiff failed to file a timely FORMAL complaint in case #991321, it was dismissed as untimely. (Defense EXHIBIT G, see, paragraph 8 of the "Synopsis."). While plaintiff appealed case #98-3542, this case did not include the issue of the alleged twenty-two non-selections as asserted by plaintiff's counsel. The plaintiff specifically withdrew those allegations when she filed her FORMAL complaint in case #
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98-3542 (Defense EXHIBIT B). Furthermore she did not appeal the dismissal of her FORMAL complaint, as untimely, in case #99-1321 where the alleged twenty-two non-selections had been raised. Nor did she file suit in District Court regarding either case # 98-3542 or #99-1322. On June 16, 2005, the plaintiff was placed on express written notice that the files concerning case # 98-3542 (aka Case numbers 200P-1543 and 200P-0644-2001123655) and case # 99-1321 (aka Case numbers 200P-1544 and 200P-0644-2001123656) were available for her inspection pursuant to Rules 33(d) and 34(b), F.R.Civ.P. See, ATTACHMENT A at pages 6-7 and ATTACHMENT B 4/12/05 Request # 9-0001 -. attached hereto). In response to plaintiff's letter of April 12, 2005 and informal request for production the defendant, on June 16, 2005 stated the following: 9. For the period from May 1, 1994 through the present, please list all governmental investigations in which any employee, former employee, or prospective employee has alleged race discrimination that has been conducted by or is pending against you with the Equal Employment Opportunity (sic). With respect to each investigation, describe all relevant facts, including but not limited to the following: (a) Charging parties; (b) Charging parties race; (c) Dates of charge and complaint; (d) Charged parties; (e) charged parties race;

(f) Type of discrimination alleged; and (g) Outcome of case, or if case pending, status of case. (h) Please produce all copies of the cases. (i) If you are unable to produce the cases, please state the location of the documents. If the documents have been destroyed, please provide: i) Date of destruction; ii) Person who destroyed the documents; iii) Under what authority was the document 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?

Response: Objection: The Federal Rules of Civil Procedure, especially Rules 33 and 34, F.R.Civ.P., do not require a party to generate specific data or review existing records to generate a new document in response to a discovery request.. See, e.g., 8A Wright & Miller, Federal Practice and Procedure § 2174 at 303.
Response: Objection: The time frame, before and after the justiciable claims, for the requested information is excessive, improper and contrary to federal Title VII law. See, e.g., Raddatz v The Standard Register Company, 177 F.R.D. 446 (D. Minn. 1997). 5

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Objection, This interrogatory seeks information regarding theories of discrimination which are not alleged in plaintiff's amended complaint and therefore, are not discoverable, i.e., an improper "fishing expedition." Objection, This interrogatory seeks information which is inadmissable, irrelevant, immaterial and not reasonably calculated to lead to the discovery of admissible evidence. Rule 404(b) F.R.Evid. See, e.g., Miller v. Doctor's General Hospital, 76 F.R.D. 136 (W.D. Okla., 1977). Without waiving said objections, and pursuant to Rules 33 (d) and 34(b) F.R.Civ.P., the documents presently known to be responsive to this request for production will be made available at the location(s) where they are maintained, by a custodian of records, at a mutually agreeable time and date for plaintiff's counsel to conduct an inspection of said documents. A listing of the presently known documents which may be responsive to this request for production is attached as ATTACHMENT B. [Emphasis added]. ATTACHMENT B specifically states: 5/26/1999 200P-0644-200112356 Slaughter-Payne, Elizabeth VAMC, PHOENIX Race- Black 11/10/98 200P-0644-2001123655 Slaughter-Payne, Elizabeth VAMC, PHOENIX Race-Black Therefore both the plaintiff and her attorney were on express notice that case # 983542 and # 99-1321 were available for their inspection. Neither the plaintiff nor her attorney requested to examine the files in case # 98-3542 or case # 99-1321. Any attempted claim of "confusion" by either the plaintiff or her attorney lacks merit. Paragraph 3, fn.1 on page 2 of the "synopsis" clearly states that case numbers 200P-1543 and 200P-0644-2001123655 have been associated with case # 98-3542. Likewise, paragraph 8, fn. 2 on page 3 of the "synopsis" clearly states that case numbers 200P-1544 and 200P-0644-2001123656 have been associated with case # 991321. Therefore, prior to the filing of plaintiff's Reply to Defendant's Response to Plaintiff's Motion for Sanctions for Destruction of Evidence (Docket Entry # 74), plaintiff's counsel failed to make a reasonable inquiry into defendant's prior discovery responses and the information contained in paragraphs 3 and 8, and others, of defendant's "synopsis" which set forth, in detail, the events pertaining to the assertions and arguments
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on page 6. Rather, the plaintiff moved to strike the synopsis. The defendant has never stated that these files had been destroyed. Additionally, Plaintiff's Exhibit 1, to the Reply (Docket Entry # 74), is not referenced or explained in her Reply, lacks a proper foundation as it is neither dated nor does it contain an EEO/ORM case number. Furthermore, this document was not produced in response to the Defendant's April 14, 2005 and October 31, 2005 Requests for Production, which specifically requested the production of such documents. ATTACHMENTS C and D. Even assuming that Exhibit 1 is the list which she submitted in case #99-1321 and which was referred to by the counselor in the April 14, 1999, INFORMAL Counselor's Report, the plaintiff failed to timely file a formal complaint of discrimination within fifteen (15) days of the Notice of Final Interview issued on April 29, 1999, as required 29C.F.R. § 1614.106(b). As a result her formal complaint was dismissed on July 13, 1999, as untimely. Defense EXHIBIT G. First she withdrew these twenty-two alleged non-selections from the formal investigation in case #98-3542 and later she abandoned such claims in case #99-1321. As a result there was no formal investigation into these alleged twenty-two nonselections and there were no documents collected for a formal administrative or investigative file for the simple and obvious reason that there was no need to as these alleged adverse employment actions were not part of any timely FORMAL employment discrimination complaint filed by the plaintiff. Plaintiff's counsel asserts that any and all documents regarding the 22 nonselections were preserved in case # 98-3541 and that the defendant has, unlawfully and in " bad faith" destroyed this case file. A reasonable inquiry into the facts would have revealed that there was no good faith basis for such assertions. Plaintiff has once again made unfounded accusations in a pleading filed with the Court.

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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 9th day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s\ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney CERTIFICATE OF SERVICE I hereby certify that on February 9, 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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