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 RESPONSE TO MOTION FOR SANCTIONS FOR DESTRUCTION OF EVIDENCE

Anthony Principi, Secretary, Department of Veterans Affairs, Defendant. The defendant, R. James Nicholson,
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Secretary, Department of Veterans Affairs,

by and though undersigned counsel respectfully submits his Response to the plaintiff's Motion for Sanctions for Destruction of Evidence. For the reasons set forth in the attached Memorandum of Points and Authorities and supporting exhibits the defendant requests the Court to deny said motion and grant defendant any further relief as the Court may deem appropriate. 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

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
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INTRODUCTION
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While not specifically stated the plaintiff seeks a default judgment against the
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defendant for the "spoliation" of documents which relate to events, dating back to at least 1997, set forth in paragraphs 28 and 46 of the December 1, 2003 Amended Complaint. This Court is well aware of the alleged "destruction" of these documents as a result of plaintiff's discovery violation motions and hearings last Fall. The plaintiff has now informed this Court that she cannot present her justiciable claims to a jury because of the intentional, bad faith and unlawful destruction of these critical documents by the Department of Veterans Affairs. The relevant documents that go to "the heart of" her justiciable claims are in her possession. These are the EEO administrative/investigative files which were developed in response to her timely filed employment discrimination claims. produced in response to her discovery requests. fact. A district court only has subject matter jurisdiction over timely filed employment claims. The events alleged in paragraphs 28 and 46 of the Amended Complaint are nonjusticiable for failure to exhaust, laches and waiver. Furthermore, she fails to distinguish between standard retention policies ( 2 years) and retention policies governing "resolution of case", see Plaintiff's EXHIBIT 2 at page 11-13,(4 years). Therefore, spoliation sanctions are simply inappropriate. As a result her demands for a default judgment or other sanctions are without merit. As previously stated, the plaintiff was the sole proximate cause of the "destruction" of these documents. Finally, references to these events must be stricken from her Amended Complaint July 26, 2004, Case Management Plan at pages 4-6. 3 "Included in those documents were several Equal Employment Opportunity files which we agreed prior to discovery would not be served on each other." Letter dated 2/24/2005. EXHIBIT O
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These files were also

Plaintiff's motion fails to mention this

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(paragraphs 28 and 46)and the proposed Amended Complaint (paragraphs 28, 46 and 59124). Further, the plaintiff must be precluded from presenting any arguments, statements, testimony or other evidence, including impeachment evidence, or in any other way presenting matters related to these twenty-two (22)and/or thirty (30) non-selections at the time of trial. appropriate. I. Plaintiff failed to exhaust the mandatory administrative remedies regarding these events. Paragraph 28 of the Amended Complaint states:" Plaintiff has applied for the Computer Specialist GS-344-5/7/9, under OC34/PVA twenty-two times." Paragraph 46 of the Amended Complaint states: "Plaintiff has applied for more than Thirty (30) positions within the VAMC Phoenix, Arizona in the grade level of GS/9 and above and has been denied for all positions." Title VII specifically requires a federal employee to timely exhaust his or her administrative remedies as a precondition to filing suit. Vinieratos v. U.S. Dept. of Air Force, 939 F.2d 762, 768 (9th Cir. 1991). Such exhaustion requires that the plaintiff raise the discrimination claims at issue or "like or reasonably related" claims in an administrative action. Yamaguchi v. U.S. Dept. of Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997). The mere fact that a disgruntled employee submits multiple applications for positions and is not selected does not raise a presumption of unlawful discrimination. Murphy v. General Electric Co., 245 F. Supp.2d 459, 475-76 (N.D.N.Y. 2003)(57 applications). Proof that a Title VII plaintiff belongs to a protected group, that he or she was qualified for the position, and that he or she was not selected, without more, simply fails to present evidence that the plaintiff "was rejected under circumstances which give rise to an inference of unlawful discrimination." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Although federal law protects job applicants against discrimination, it does not afford them special preference or place upon the employer an affirmative duty to accord special treatment. See, 42 U.S.C.§ 2000e-2(j); see also Burdine 450 U.S. at 259; Sessions
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The defendant also requests any further relief that the Court may deem

See, Answer to Amended Complaint: SIXTH DEFENSE
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v. Rusk State Hosp., 648 F.2d 1066, 1071 (5th Cir. 1981); Wynn v. Columbus Mun. Separate Sch. Dist., 692 F. Supp. 672, 684 (N.D. Miss. 1988). As the Ninth Circuit has noted: [W]here, as here, the complainant has only himself to blame for the absence of an administrative ruling on the merits of his claim, it is fair to conclude that he has failed to comply with the administrative exhaustion requirement. It is not the role of the federal judiciary to straighten out a mess that is the complainant's own doing. Vinieratos v. U.S. Dept. of Air Force, 939 F.2d 762, 773 (9th Cir. 1991). While she has not complied with these requirements, the plaintiff asserts that the twenty-two to thirty non-selections are critical to her case and that she is absolutely entitled to a default judgment or other sanctions as the Department of Veterans Affairs has "unlawfully" destroyed the documents related to these events. For example, " The Position Vacancy Announcement ("PVA") files are crucial to Plaintiff's case." Motion, page 5, lines 18-19; "If as the plaintiff has alleged - the missing PVA's showed that she was the "most qualified applicant" then it would undermine the Defendant's claim that the person selected over Plaintiff was more qualified." Motion, page 8, lines 1-4. It is readily apparent that these documents relate to time-barred events which are non-justiciable. Howell v. Department of the Army, 975 F. Supp. 1293 (M.D. Ala. 1997), aff'd 130 F2d. 445 (11th Cir. 1997)(Federal employee had to consult Equal Employment Opportunity (EEO) counselor at the workplace within 45 days of allegedly discriminatory act.). Furthermore in the Ninth Circuit, a district court lacks subject matter jurisdiction over additional claims that were not raised or that are not reasonably related to the allegations presented during the administrative process. Shah v. Mt. Zion Hospital and Medical Center, 642 F.2d 268, 271-72 (9th Cir. 1981)(Additional and new theories properly dismissed.); Serpe v. Four-Phase Systems, Inc., 718 F.2d 935, 936 (9th Cir. 1983); Worrell v. Uniforms to You & Co., 673 F. Supp. 1461, 1462-3 (N.D. Cal. 1987); See also, King v. Seaboard Coast Line R. Co., 538 F.2d 581, 583 (4th Cir. 1976); Sanchez
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v. Standard Brands, Inc., 431 F.2d 455, 496 (5th Cir. 1970); Ray v. Freeman, 626 F.2d 439, 443 (5th Cir. 1980)(Allegations of new acts of discrimination are not appropriate); McGuire v. U.S. Postal Service, 749 F. Supp. 1275, 1287-8 (S.D.N.Y. 1990); Sudtelgte v. Sessions, 789 F. Supp. 312, 315 (W.D.Mo. 1992). Such procedural requirements for gaining access to the federal courts are strictly construed, and "are not to be disregarded by courts out of a vague sympathy for particular litigants." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1994); See also, Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 94 (1990) (time limits must be strictly construed); Dillard v. Runyon, 928 F.Supp. 1316 1323 (S.D.N.Y., 1996); Thompson v. West, 883 F.Supp. 1502, 1507 (M.D.Ala.1995) ( "[t]hese rules are not mere technicalities . . . [t]he requirement of fully exhausting administrative remedies serves substantial policy considerations").A failure to exercise due diligence in preserving one's legal rights does not justify an equitable tolling of the statute of limitations. Scholar v. Pacific Bell, 963 F.2d 264, 268 (9th Cir. 1992). Although pro se pleadings are construed liberally, pro se litigants are nonetheless bound by the rules of procedure. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). As a matter of law, she may not re-litigate abandoned claims in this action. Furthermore, she did not exhaust her administrative remedies regarding these events in the cases properly before this Court. These documents were destroyed pursuant to routine document retention policies. Further, she has admitted that she did not retain any of these documents. EXHIBIT M (defense Requests to Admit # 58 through 75) EXHIBIT N (Plaintiff's May 13, 2005 letter). Therefore, these events represent non-justiciable claims and the principles of spoilation do not apply. The prejudice to the defendant by plaintiff's failure to file timely EEO complaints regarding these events, relates to the important policy factors underlying the exhaustion requirement. The requirement that aggrieved employees present their discrimination/retaliation complaints to an agency rather than to a court in the first
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instance encourages informal, conciliatory resolution of disputes and reduces the burden on federal district courts. Sampson v. Civiletti, 632 F.2d 860, 862-63 (10th Cir. 1980). In addition, it permits the agency to develop a record, locate and preserve relevant documents and to exercise its discretion, to apply its expertise, and possibly to discover and correct its own alleged errors. Id. at 863; Sanchez, supra. at 466; Vinieratos, supra. at 775. When directly questioned regarding the allegations in paragraphs 28 and 46 the plaintiff refused to identify when and how she "exhausted" her administrative remedies regarding these twenty-two to thirty non-selections. EXHIBIT M (Defense Request for Admissions # 40 through 57). For example: REQUEST FOR ADMISSION #40. Admit that the plaintiff did not file a union grievance or file a charge of employment discrimination and/or retaliation or institute any legal process, i.e., administrative or a federal lawsuit, including but not limited too a complaint to the CTHVAMC employment discrimination office, EEOC, MSPB, Federal Labor Relations Authority ( FLRA), or agency grievance procedure regarding her non-selection for CTHVAMC job announcement #97-175B1 . ( see,- Plaintiff 1 0/04/04 Interrogatory # 12 (a)) Admit _____ Deny X Plaintiff filed a complaint through internal administrative process as well as EEO complaints. See EEO case filed in the possession of the defendant. If denied, please state the factual basis for the denial and identify the witness(es) who will testify at the time of trial in support of your denial and identify any and all documents that you intend to, will or may rely upon or proffer at the time of trial, publish to the jury or seek to admit into evidence. This is an evasive and incomplete response to a request for admission. Asea, Inc. v. Southern Pacific Transportation Co., 669 F.2d 1242, 1245 (9th Cir.1981);Diederich v. Dept.

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of Army, 132 F.R.D. 614, 616 (N.D.N.Y., 1990. Her incomplete and evasive answers required a careful search of her prior filings against the CTHVAMC. EXHIBITS A through L There are only two EEO complaints where the events in paragraphs 28 and 46 are raised by the plaintiff. The first is Case # 98-3542, the events involved occurred in 1997-1998 some 6 to 7

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years prior to service of the lawsuit on the defendant. Her initial contact occurred on October 8, 1998. However, she expressly withdrew these, as she described them "background information," at the time she filed her formal complaint on November 13, 1998. EXHIBITS A and B. So whether in fact her "Appeal is still active" as stated in her Motion at page 13, line 9, none of these "missing"documents would have been investigated as she specifically withdrew them. Furthermore, it is a matter of public record that her appeal (EEOC # 01A01398 EXHIBIT P ) was dismissed on May 31, 2000 for failure to timely file the appeal. She abandoned this EEO case by not timely seeking relief in District Court.
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The second time was in case # 99-1321, initial contact 3/16/1999, in plaintiff's informal complaint, EXHIBIT E Counselor's Report at page 2: The aggrieved submitted a list of twenty two positions that she has applied for at the Medical Center within the past two years. An inquiry was made into a random number of these positions which included the last position she applied for. However, her formal complaint was untimely and case # 99-1321 was dismissed. EXHIBIT G. She neither appealed the adverse decision nor filed suit. Therefore she abandoned those claims. Therefore, it is readily apparent that the defendant could have preserved the non-

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selection documents, but for the failure of the plaintiff to trigger their retention as a "case" as defined by the Department of Veterans Affairs four (4) year record retention policies. While counsel relies on Exhibit 3 to his memorandum, that "summary" was in response to plaintiff's Interrogatory # 4. Any "confusion" was resolved in responding to Interrogatory # 12 in his letter of April 12, 2005. Furthermore, all he had to do was ask his client. Therefore, such arguments lack merit. EXHIBIT P.
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As a result the normal two (2) year retention policy applied and they were lawfully destroyed. Therefore, the requested default judgment or other sanctions for "spoliation" of evidence must be denied as a matter of law. In Agency Case No. 200P-2674 (Case Management Plan, page 4) plaintiff's initial contact occurred on December 1, 2000 on her discrimination/retaliation claim that she was not selected for a specific position of Computer Specialist, GS-344-5/7/9 on or about November 7, 2000. In that matter she did not rely upon the twenty-two to thirty nonselections nor did she protest when the underlying documents regarding these events were not: (1) included in the defined issues, (2) obtained and preserved in the investigative file, or (4) discussed in the Investigators Report dated May 17, 2001.

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This is indeed very curious as she now maintains that the VA was `on notice' that these documents are so very important and now she cannot proceed in this lawsuit without them. Her present indignation is disingenuous at best. Her demand for sanctions must be denied. During the course of the administrative proceedings, the plaintiff was represented by Mr. Patterson. This case was at the pre-hearing stage when shortly after being served with the defendant's November 13, 2001, Motion for Summary Judgment, her attorney elected to file the instant lawsuit on November 21, 2003. EXHIBIT Q. As a federal employee she is not permitted to withhold discrimination or retaliation claims during the administrative process in order to raise them for the first time in district court. Ong v. Cleland, 642 F.2d 316, 320 (1981); Beale v. Blount, 461 F.2d 1133, 1140 (5th Cir. 1972). The issues in the justiciable claims pending before this Court, have been defined

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by the administrative proceedings below. As to the new factual allegations and theories of discrimination and/or retaliation, no prejudice to the plaintiff is present since the Court is without subject matter jurisdiction to consider them. Additionally, any such prejudice is solely the end result of her own failure to timely and properly present her case in accordance with Title VII statutory requirements. The plaintiff cannot seriously dispute her obligation to exhaust administrative remedies as required by federal law to create Title VII subject matter jurisdiction. She was, by her own assertions in this litigation, very knowledgeable on these requirements as she represented other employees with discrimination claims, furthermore she was represented by counsel. Brown v. General Services Administration, 425 U.S. 820, 829

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 A district court has discretionary power to make appropriate evidentiary rulings in response to the spoliation of relevant evidence. Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir.1993). This includes sanctioning the responsible party by a jury instruction that the destroyed evidence would have been unfavorable to the responsible party. Id.; Akiona v. United States, 938 F.2d 158, 161 (9th Cir.1991) . The district court's sanctions are only reviewed for abuse of discretion. Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 367 (9th Cir.1992); see, Caparotta v. Entergy Corp. 168 F.3d 754, 755-58 (5th Cir., 1999).
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(1976); Mt. Zion Hospital and Medical Center, 642 F. 2d 268, 271-72 (9th Cir. 1981). II. All documents relevant to plaintiff's justiciable claims were preserved.
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Spoliation involves the destruction of relevant and admissible evidence.

Further

it is well established that 42 U.S.C. 2000-5(e)(1) precludes recovery for discrete acts of alleged discrimination or retaliation that occur outside the statutory time period, irrespective of whether other acts of alleged discrimination occurred within the statutory time period. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14 (2002). The plaintiff has failed to meet her burden of proof that: (1) the defendant had

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proper and sufficient notice to warrant the preservation of the subject documents, (2) the subject documents go to the heart of proving the plaintiff's justiciable claims and not mere collateral or peripheral issues, (3) the subject documents are admissible into evidence, and (4) that the plaintiff is unable to proceed without the subject documents. Destruction of evidence must go to the heart of the case. Hammond Packing Co. v. Ark., 212 U.S. 322, 349-54(1909); Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 806 (9th Cir.1982); Byrnie v. Town of Cromwell, 243 F.3d 93, 107-12 (2d Cir.2001); Hamilton v. Signature Flight Support Corp., 2005 WL 3481423(N.D.Cal. 2005);Advantacare Health Partners v. Access IV, 2004 WL 1837997, *6 (N.D.Cal., 2004); Nat'l Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557 (N.D.Cal.1987);Computer

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Associates Intern., Inc. v. American Fundware, Inc., 133 F.R.D. 166, 170 (D. Colo. 1990); Nat'l Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557 (N.D.Cal.1987); Computer Assoc. Int'l v. Am. Fundware, Inc., 133 F.R.D. 166, 170 (D.Col.1990). It is plaintiff's position that merely because she filed numerous EEO complaints, anything and everything concerning her employment must be indefinitely preserved just in case she decides, at some future date, to file a lawsuit. Such arguments lack merit. In U.S. v. Kitsap Physicians Service, 314 F.3d 995, 1001-1002 (9th Cir. 2002) the Ninth Circuit held: Defendants have offered credible reasons for the destruction of the records, i.e. the retention policy in accordance with both State and Federal Regulations, and storage accommodation. Aflatooni offered no evidence to rebut that explanation. Defendants engage in spoliation of documents as a matter of law only if they had "some notice that the documents were potentially relevant" to the litigation before they were destroyed. Akiona, 938 F.2d at 161. Aflatooni argues that defendants improperly destroyed the 1985-87 billing records. The defendants respond that the documents were

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kept and destroyed in the normal course of business. Defense witnesses testified on deposition that the documents were routinely destroyed after keeping them for the six years required by state regulations. That is, the 1985-87 documents were destroyed in 1991-94. Aflatooni did not bring his lawsuit until January 1996. Therefore, Aflatooni's action could not have provided the notice required to establish a valid claim of spoliation. *** Aflatooni's argument, if accepted by this Court, would result in a de facto rule that health care providers must keep documents in perpetuity ... [A]nd would be unfair as a matter of legal policy to health care providers who generate enormous quantities of records. Where an organization receives a clean bill of health as a result of such an investigation, and keeps the relevant records for the time period mandated by law, without additional evidence of wrongdoing that should have put management on notice that the investigation was inadequate, there is nothing to warrant a finding of spoliation. In this case, the district court correctly found that there was no spoliation. In Akiona v. United States, 938 F.2d 158, 161(9th Cir.1991), which involved alleged spoilation by the federal government, the Ninth Circuit held: Generally, a trier of fact may draw an adverse inference from the destruction of evidence relevant to a case. Welsh v. United States, 844 F.2d 1239, 1246 (6th Cir.1988). The adverse inference is based on two rationales, one evidentiary and one not. The evidentiary rationale is nothing more than the common sense observation that a party who has notice that a document is relevant to litigation and who proceeds to destroy the document is more likely to have been threatened by the document than is a party in the same position who does not destroy the document. The other rationale for the inference has to do with its prophylactic and punitive effects. Allowing the trier of fact to draw the inference presumably deters parties from destroying relevant evidence before it can be introduced at trial. Nation-Wide Check Corp. v. Forest Hills Distribs., Inc., 692 F.2d 214, 218 (1st Cir.1982). The evidentiary rationale does not apply here. Nothing in the record indicates that the government destroyed the records pertaining to the grenade in response to this litigation. Thus, its destruction of the records does not suggest that the records would have been threatening to the defense of the case, and it is therefore not relevant in an evidentiary sense.[Emphasis added]. *** Here, the plaintiffs have not shown any bad faith in the destruction of the records, nor even that the government was on notice that the records had
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potential relevance to litigation. Nothing in the record indicates that the government destroyed the grenade records with the intent of covering up information. [Emphasis added]. *** Indeed, the government may have destroyed the records pursuant to its policy of destroying documents regarding grenades two years after their disposition. This lawsuit, which was filed on November 21, 2003, was not served on the Secretary of the Department of Veterans Affairs until April 28, 2004. And the subject documents were not requested until October 4, 2004. This obvious delay, by the plaintiff, clearly increased the risk that the subject documents would be routinely destroyed. A district court does not abuse its discretion in refusing an unfavorable inference when the circumstances indicated that the evidence was not intentionally lost and the responsible party searched for it, but to no avail. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir.1995); Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 716 (7th Cir.1998) (the inference that a missing record contained adverse evidence was not justified

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when the record's loss was inadvertent). The "destroyed" documents were not required to be preserved by any employment discrimination claim timely filed by the plaintiff. filed against the defendant. Plaintiff simply avoids the only relevant question: whether or not the administrative Exhibit 7 to plaintiff's Motion adds nothing to her arguments. While the applications of other candidates were not preserved, they are no longer relevant. The selectees application (Mr. Pyle) and plaintiff's application were preserved. Once the selection was made, in this case, the other applications are irrelevant to comparing the plaintiff's qualifications to the selectee's. DeHerrera v. Stone, 1993 WL 793931 (D. Ariz., 1993). The question is whether the selectee was more qualified with respect to the criteria that CTHVAMC had established for the specific position in question. Cotton v. City of Alameda, 812 F.2d 1245, 1248-49 (9th Cir. 1987). However, the plaintiff refused to comply with defendant's discovery request in the same administrative proceedings. EXHIBIT R.
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This is the only lawsuit that she has

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and investigative files in her justiciable claims are sufficient to permit her to proceed. It is readily apparent that it is the defendant who is prejudiced if the plaintiff is allowed to argue or present evidence regarding the events alleged in paragraphs 28 and 46 of the Amended Complaint. The defendant was denied the opportunities afforded by the administrative process to timely investigate such allegations.

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As the defendant was not placed on notice of a need to preserve such documents beyond the time period set forth in agency retention policies, as a matter of law there is no spoliation. U.S. v. Kitsap Physicians Service, 314 F.3d at, 1001. A motion for sanctions that rests on sheer speculation must be denied. Medical Laboratory Management Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 823-25 (9th Cir., 2002). Therefore, plaintiff's demand for default judgment or other sanctions must be denied. III. Whether deemed admissible background evidence or not, laches precludes such evidence. The equitable defense of laches consists of two elements: (1) a lack of diligence by the plaintiff, and (2) prejudice resulting from the delay. Under this two prong approach, the plaintiff bears the burden of explaining the delay in bringing suit or relying on the alleged events. She offers nothing but righteous indignation and assumes no responsibility for the very situation she has created . Wilmes v. U.S. Postal Service, 810 F.2d 130, 133-35 ( 7th Cir. 1987); Lingenfelter v. Keystone Consol. Industries, Inc., 691 F.2d 339, 340-42. (7th Cir., 1982). The plaintiff bears the burden of proof of demonstrating that her unconscionable delay was not unreasonable. Zelazny v. Lyng, 853 F.2d 540, 541 (7th Cir. 1988). This is a burden that she cannot meet.

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Laches bars those claims where a plaintiff's unreasonable delay in bringing suit harms the defendant. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121-22 (2002); Smith v. Caterpillar, Inc., 338 F.3d730, 733 (7th Cir. 2003); Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 824 (7th Cir. 1999). In the absence of a timely filed EEO complaint or a timely lawsuit which would

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require the retention of such documents, a federal agency would reasonably assume that any such documents could be destroyed in accordance with published records retention policies. This reliance is reasonable as the defendant is not placed on notice that an employee some years later would seek to rely upon such documents as "background" evidence in an employment discrimination/retaliation lawsuit. cf. Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 806-08 ( 8th Cir., 1979). In fact since plaintiff's unreasonable delay far exceeds the statutes of limitation governing federal employees, prejudice may be presumed. Gruca v. U.S. Steel, 495 F2d 1252, 1260 (3rd Cir 1974). In rejecting the concept of "continuing violations" the Supreme Court was careful to protect the rights of the employer who is accused of unlawful discrimination in the case of National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121-22 (2002): Our holding does not leave employers defenseless against employees who bring hostile work environment claims that extend over long periods of time. Employers have recourse when a plaintiff unreasonably delays in filing a charge. As noted in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S. Ct. 1127, 71 L.Ed.2 234 (1982), the filing period is not a jurisdictional prerequisite to filing a Title VII suit. Rather it is a requirement subject to waiver, estoppel, and equitable tolling "when equity so requires." Id., at 398, 102 S.Ct. 1127. These equitable doctrines allow us to honor Title VII's remedial purpose "without negating the particular purpose of the filing requirement, to give prompt notice to the employer." Ibid. This Court previously noted that despite the procedural protections of the statute " a defendant in a Title VII enforcement action might still be significantly handicapped in making his defense of an inordinate EEOC

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delay in filing the action after exhausting its conciliation efforts." Occidental Life Ins. Co., of Cal. v. EEOC, 432 U.S. 355, 373, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977). The same is true when the delay is caused by the employee, rather than by the EEOC. Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 424, 95 S.Ct. 2362, 45 L.Ed. 2d 280 (1975) ( "[A] party may not be `entitled' to relief if its conduct of the cause has improperly and substantially prejudiced the other party"). In such cases, the federal courts have the discretionary power to "to locate `a just result' in light of the circumstances peculiar to the case." Id., 424-425, 95 S.Ct. 2362. In addition to other equitable defenses, therefore, an employer may raise a laches defenses, which bars a plaintiff from maintaining a suit if he unreasonably delays in filing a suit and as a result harms the defendant. This defense " requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense. " Kansas v. Colorado, 514 U.S. 673, 687, 115 S.Ct 1733(quoting Costello v. United States, 365U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551,(1961)). *** We observe only that employers may raise various defenses in the face of unreasonable and prejudicial delay. Application of laches is particularly appropriate in light of the fact that records covering the period from 1997 through 2001 are no longer available to the defendant making it impossible to locate comparative applicant/candidate information, potential witnesses and former employees, whereas a timely complaint would permit an appropriate investigation of the charges. It must not be overlooked that, as a practical matter, such "background" evidence likely will have the same effect on a jury as evidence offered in support of timely claims. The Secretary of the Department of Veterans Affairs has made the required showing that it has been prejudiced by this delay. It is the intent of the plaintiff to present these remote events, which now constitute discrete adverse employment actions, as "background" evidence and to put her personal "spin" on what happened during the course of these twenty-two to thirty non-selections. Such arguments have been rejected in the

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Ninth Circuit. E.E.O.C. v. Alioto Fish Co., Ltd., 623 F.2d 86, 88 (9th Cir., 1980)(TitleVII); Boone v. Mechanical Specialties Co., 609 F.2d 956, 958-60 (9th Cir. 1979) (Title VII case);Shouse v. Pierce County, 559 F.2d 1142, 1147 (9th Cir.1977) ( "It is extremely rare for laches to be effectively invoked when a plaintiff has filed his action before limitations in an analogous action at law has run."). She must be precluded from placing the

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defendant in the impossible position of defending against 22 to 30 "mini-trials" before a jury when it cannot rebut, without the documentary evidence, her self-serving personal opinions, speculative allegations and those of her proposed witnesses. Lyons 307 F.3d at 1111, Fn. 13.; Tennison v. Circus Circus, Enters., 244 F.3d 684, 689-90 (9th Cir. 2001); Wyvill v. United Companies Life Ins. Co., 212 F.3d 296, (5th Cir.2000)( 44 prejudicial mini-trials). To subject the defendant to such a gauntlet would be unconscionable and result in unfair prejudice, confusion of the issues, mislead the jury, cause undue delay and needless waste of time. Furthermore, the minimal value, if any, of such remote events is substantially outweighed by the defendant's rights to a fair trial. Rule 403 Fed.R.Evid. Clearly the prejudicial impact on the defendant, before a jury, is the primary goal of such "evidence" and clearly invites reversible error. Hester v. BIC Corp., 225 F.3d 178, 184-86 (2nd Cir., 2000); Caparotta v. Entergy Corp. 168 F.3d 754, 755-58 (5th Cir., 1999) (Employment discrimination case. Comments regarding spoliation were reversible error.) There is one serious question regarding the basis for the filing of this 18 page Motion. If the subject documents were so very critical to the plaintiff and their destruction will result in such extreme prejudice to her lawsuit, she needs to explain to this Court why she did not exercise due diligence to preserve such claims in her prior EEO cases and most recently in her computer specialist non-selection claim which she initiated on December 1, 2000. In this non-selection claim she was represented by the same attorney

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who now seeks a default judgment against the defendant. Their inconsistent positions and inaction in failing to timely raise these matters during the administrative proceedings should first be explained to this Court before any consideration is given to sanctioning the defendant. Clearly the prejudicial impact on the defendant, before a jury, is the primary goal of

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such "background evidence" and must be excluded in this action. Rules 403, 404 (b), F. R. Evid.; Obrey v. Johnson, 400 F.3d 691, (9th Cir., 2005); Coral Const. Co. v. Coral Const. Co. v. King County, 941 F.2d 910, 919 (9th Cir. 1991); Tennison , 244 F.3d at, 689-90. CONCLUSION Plaintiff has failed to meet the burdens of proof required to establish sanctionable spoliation against the defendant. Therefore, as a matter of law plaintiff's motion must be denied. 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

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
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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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