Free Response to Motion - 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

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Martha Slaughter-Payne, v. Plaintiff, CIV-03-2300-PHX-ROS DEFENDANT'S EXHIBITS IN SUPPORT OF HIS RESPONSE TO PLAINTIFF'S MOTION FOR SANCTIONS

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

1.

On October 8, 1998, the Plaintiff filed an informal complaint of discrimination in

which she alleged that she was not selected for a Computer Specialist position, GS 7/9/11/12 (PVA #98-060B1) on the basis of race (African-American), gender (female) and reprisal. See Counselor's Report dated November 23, 1998, attached as EXHIBIT A (also produced in discovery at 1ST.SET-INTERROGATORIES #004-000191 through 1ST.SET-INTERROGATORIES #004-000195. The Plaintiff also noted that she felt she had been harassed in not being selected for several other positions which are not described in the Counselor's Report. Id.

2.

It is evident that the informal counseling was unsuccessful because the Plaintiff

filed a formal complaint of discrimination on November 13, 1998. In her formal complaint of discrimination, she alleged that she was discriminated against as the result of her race (African-American), color (Black), gender (female), and in reprisal for prior EEO activity. Interestingly, she included correspondence with her formal complaint

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indicating that the materials supplied to the EEO Counselor regarding positions at the Phoenix VAMC other than the one she applied for were background information and were not part of her complaint. See Formal Complaint of Discrimination dated November 13, 1998, attached as EXHIBIT B (also produced in discovery at 1ST.SETINTERROGATORIES #004-000189 through 1ST.SET-INTERROGATORIES #004000190, without the correspondence).

3. 3542

The VA Office of Resolution Management assigned the matter case number 981/

and investigated the matter. The issue investigated was whether the Plaintiff was

discriminated against in not being selected for a Computer Specialist position, GS 7/9/11/12 (PVA #98-060B1) on the basis of race (African-American), gender (female) and/or reprisal. At the conclusion of the investigation, the investigator recommended a finding of no discrimination on the issues of race and gender, but a finding of discrimination on the issue of reprisal. See Investigatory Summary and Analysis dated July 14, 1999, attached as EXHIBIT C (also produced in discovery at 1ST.SETINTERROGATORIES #004-000207 through 1ST.SET-INTERROGATORIES #004000219).

4.

Agency records reflect that the Plaintiff was notified at the conclusion of the

investigation that she could elect a formal hearing before an EEO Administrative Judge, or forgo that hearing and seek a Final Agency Decision. Agency records reflect that on July 26, 1999, the Plaintiff requested a Final Agency Decision. Id. See 1ST.SETINTERROGATORIES #004-000204 for Plaintiff's letter requesting a Final Agency Decision.

5.

On October 26, 1999, the VA Office of Employment Discrimination Complaint

Case numbers 200P-1543 and 200P-0644-2001123655 have also been associated with this matter. This appears to be a function of VA's Office of Resolution Management changing a computer referencing system.

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Adjudication (OEDCA) issued a Final Agency Decision concluding that the Plaintiff had failed to prove by preponderant evidence that she had been discriminated against. See Final Agency Decision dated October 26, 1999, attached as EXHIBIT D. The Plaintiff was notified of this decision by certified mail at what appears to be her address to this day. Id.

6.

On March 16, 1999, the Plaintiff filed an informal complaint of discrimination in

which she alleged that she was discriminated against as the result of her race (AfricanAmerican), color (Black), gender (female), and in reprisal for prior EEO activity when management failed to promote/select her for the position of Computer Specialist, GS-3345/7/9 (PVA#99-023B1) and that from approximately March 16, 1997 through March 15, 1999 management harassed her by failing to select her for twenty-two positions/vacancies. See Counselor's Report dated April 14, 1999, attached as EXHIBIT E.

7.

It is evident that the informal counseling was unsuccessful because the Plaintiff

filed a formal complaint of discrimination on May 3, 1999. In her formal complaint of discrimination, she alleged that she was discriminated against as the result of her race (African-American), color (Black), gender (female), and in reprisal for prior EEO activity. See Formal Complaint of Discrimination dated May 3, 1999, attached as EXHIBIT F.

8. 1321.

The VA Office of Resolution Management assigned the matter case number 992/

The VA ORM concluded that the Plaintiff had failed to file a formal complaint

of discrimination within fifteen (15) days of the Notice of Final Interview issued on April 29, 1999, as required by 29 C.F.R. § 1614.106(b) and dismissed her complaint as untimely. See Final Agency Decision dated July 13, 1999, attached as EXHIBIT G. Case numbers 200P-1544 and 200P-0644-2001123656 have also been associated with this matter. See, fn. 1.
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9.

On June 18, 1999, the Plaintiff filed an informal complaint of discrimination in

which she alleged that she was discriminated against as the result of her race (AfricanAmerican), color (Black), gender (female), and in reprisal for prior EEO activity when the Chief, Information Resources Management Department denied her request to volunteer in the department. See Counselor's Report dated July 19, 1999, attached as EXHIBIT H.

10.

It is evident that the informal counseling was unsuccessful because the Plaintiff

filed a formal complaint of discrimination on July 15, 1999. In her formal complaint of discrimination, she alleged that she was discriminated against as the result of her race (African-American), color (Black), gender (female), and in reprisal for prior EEO activity. See Formal Complaint of Discrimination dated July 15, 1999, attached as EXHIBIT I.

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The VA Office of Resolution Management assigned the matter case number 99-

The VA ORM concluded that the Plaintiff had failed to state a claim [upon which

relief could be granted], as required by 29 C.F.R. § 1614.103, 29 C.F.R. § 1614.106 and 29 C.F.R. § 1614.107(a) and dismissed her complaint. See Final Agency Decision dated August 15, 1999, attached as Tab J (also produced in discovery at 1ST.SETINTERROGATORIES #004-000197 through 1ST.SET-INTERROGATORIES #004000200.

12.

On October 29, 2001, the Plaintiff filed an informal complaint of discrimination in

which she alleged that she was discriminated against based upon reprisal where she was intimidated and coerced with intent to inflict harassment. See Notice of Informal Counseling, produced in discovery at 1ST.SET-INTERROGATORIES #004-000084 through 1ST.SET-INTERROGATORIES #004-000085. It is evident that the informal Case numbers 200P-1542 and 200P-0644-2001123654 have also been associated with this matter. See fn. 1.
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counseling was unsuccessful because the Plaintiff filed a formal complaint of discrimination on December 3, 2001. See Formal Complaint of Employment Discrimination, produced in discovery at 1ST.SET-INTERROGATORIES #004-000078 through 1ST.SET-INTERROGATORIES #004-000079). ( The "Transfer Case.").

13.

The VA Office of Resolution Management assigned the matter case number 200P-

0644-2002100409, investigated the case and notified the Plaintiff at the conclusion of the investigation that she could elect a formal hearing before an EEO Administrative Judge, or forgo that hearing and seek a Final Agency Decision. See Investigatory Summary and Analysis dated May 17, 2002, produced in discovery at 1ST.SET-INTERROGATORIES #004-000035 through 1ST.SET-INTERROGATORIES #004-000049). The Plaintiff also amended the allegations of discrimination after filing the Formal Complaint to include being offered a Voluntary Separation Incentive Payment (buyout) and that the transfer, from the Mental Health and Behavioral Sciences Service Line to the Human Resources Management Service, was motivated by discrimination. Id. The Plaintiff selected a formal hearing by an EEO Administrative Judge. See Plaintiff's selection, produced in discovery at 1ST.SET-INTERROGATORIES #004-000029.

14.

During the pendency of this matter, the Plaintiff also filed a grievance under the

Agency's collective bargaining agreement with the American Federation of Government Employees union. On July 25, 2002, July 26, 2002, December 5, 2002 and December 11, 2002, the Plaintiff, represented by the union local, conducted a labor arbitration in which she argued, inter alia, that she was discriminated against by management in her involuntary transfer from the Mental Health and Behavioral Sciences Service Line to the Human Resources Management Service.

15.

At the conclusion of the labor arbitration and upon receipt of the arbitrator's

decision, the Agency filed a Motion to Dismiss the Plaintiff's formal complaint before the

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EEOC Administrative Judge on the basis that she had irrevocably selected her forum in the labor arbitration under 5 U.S.C. § 7121(d). On October 27, 2003, the EEOC Administrative Judge granted the Agency's motion and dismissed the Plaintiff's complaint. See EEOC Administrative Judge's decision dated October 27, 2003, attached as EXHIBIT K.

16.

On December 1, 2000, the Plaintiff filed an informal complaint of discrimination

in which she alleged that she was discriminated against based upon reprisal in not being selected for a specific Computer Specialist position, GS-334-5/7/9, PVA #2000-279B1. See Counselor's Report produced in discovery at 1ST.SET-INTERROGATORIES #004000264 through 1ST.SET-INTERROGATORIES #004-000268. It is evident that the informal counseling was unsuccessful because the Plaintiff filed a formal complaint of discrimination on December 28, 2000. See Formal Complaint of Discrimination produced in discovery at 1ST.SET-INTERROGATORIES #004-000272. (The "NonSelection Case").

17.

The VA Office of Resolution Management assigned the matter case number 200P-

2674 4/, investigated the case and notified the Plaintiff at the conclusion of the investigation that she could elect a formal hearing before an EEO Administrative Judge, or forgo that hearing and seek a Final Agency Decision. See Investigative Report produced in discovery at 1ST.SET-INTERROGATORIES #004-000331 through 1ST.SETINTERROGATORIES #004-000347. The Plaintiff selected a formal hearing by an EEO Administrative Judge. See Plaintiff's selection, produced in discovery at 1ST.SETINTERROGATORIES #004-000350.

18.

At some point during the pendency of this matter, Mr. Patterson began to represent

the Plaintiff. The first document mentioning Mr. Patterson is an Order from the EEO Case number 200P-0644-2001124786 has also been associated with this matter. See, fn. 1.
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Administrative Judge dated October 15, 2003.

19.

Shortly thereafter, the Plaintiff indicated that she did not wish to further litigate

this matter before the EEOC Administrative Judge, and filed suit in federal district court on November 21, 2003.

20.

On April 8, 2004, the Plaintiff filed an informal complaint of discrimination in

which she alleged that she was discriminated against based upon reprisal in that she was harassed by being questioned by management whenever speaks with someone in her office or in the hall and by denying her compensatory time. See Notice of Informal Counseling, produced in discovery at 1ST.SET-INTERROGATORIES #004-000020. It is evident that the informal counseling was unsuccessful because the Plaintiff filed a formal complaint of discrimination on May 17, 2004. See Formal Complaint of Employment Discrimination, produced in discovery at 1STSET-INTERROGATORIES #004-000024.

21.

The VA Office of Resolution Management assigned the matter case number 200P-

0644-2002100409, investigated the case and notified the Plaintiff at the conclusion of the investigation that she could elect a formal hearing before an EEO Administrative Judge, or forgo that hearing and seek a Final Agency Decision. See Investigative Report produced in discovery at 1ST.SET-INTERROGATORIES #004-000331 through 1ST.SETINTERROGATORIES #004-000347. The Plaintiff selected a formal hearing by an EEO Administrative Judge. See Plaintiff's selection, produced in discovery at 1ST.SETINTERROGATORIES #004-000029.

22.

This matter was awaiting an assignment of a formal hearing date before an EEOC

Administrative Judge. However, the Plaintiff recently filed a Motion to Dismiss her own case. We await the Judge's decision on that motion.

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23.

With regard to each of the Final Agency Decisions mailed to the Plaintiff at her

address of record at the time, and each decision advised her that she could appeal the Final Agency Decision by the following methods: a. by filing an appeal with the Equal Employment Opportunity Commission Office of Federal Operations within 30 days of the date of the Final Agency Decision, or by filing suit in U.S. District Court within 90 days of receipt of the Final Agency Decision if no appeal to EEOC has been filed, or if an appeal is filed with the EEOC, within 90 days after receipt of EEOC's final decision on the appeal or after 180 days from the date of filing an appeal with the EEOC if there has been no final decision by the EEOC.

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b.
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23.
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VA's Office of General Counsel, Professional Staff Group IV, is the entity which

receives notice of appeals filed against VA in the EEOC Office of Federal Operations. VA Office of General Counsel has no record of any appeal being filed with the EEOC
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Office of Federal Operations. See Affidavit of Deborah McCallum, Associate General
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Counsel, VA Office of General Counsel, attached as EXHIBIT L.
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24.
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The Department of Veterans Affairs EEO process was mandated by Title 1 of

Public Law 105-114, the Veterans' Benefits Act of 1997, effective November 21, 1997. This law was entitled the Equal Opportunity Process in the Department of Veterans
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Affairs, and established the Office of Resolution Management (ORM), which became
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operational on February 22, 1998.
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Respectfully submitted this 23rd day of January, 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 January 23, 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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