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 OPPOSITION TO MOTION TO AMEND; MOTION TO STRIKE

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

though undersigned counsel respectfully submits his Opposition to Plaintiff's Motion to Amend The defendant respectfully moves pursuant to Rule 12(f), F.R.Civ.P. paragraphs 28 and 46 of the Amended Complaint and paragraphs 28 and 46 of the Proposed Amended. Further, the defendant moves pursuant to Rule 12 (b)(1), F.R.Civ. P., paragraphs 59 through 124 of the Proposed Amended Complaint.

The defendant's Opposition and Motion to Strike are supported by the attached Memorandum of Points and Authorities and other matters of record. 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 INTRODUCTION The decision to grant or deny a motion to amend is within the discretion of the district court, Rule 15(a) states that leave to amend 'shall be freely given when justice so requires'; this mandate is to be heeded." Foman v. Davis, 371 U.S. 178, 182 (1962); Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1472 (9th Cir.1987); Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990) (stating that leave to amend is generally allowed with "extraordinary liberality"); Robinson v. Fred Meyers Stores, Inc., 252 F.Supp.2d 905 (D.Ariz., 2002) . However, this policy is subject to some limitations. The United States Supreme Court has established that motions to amend should be granted unless the district court determines that there has been a showing of: (1) undue delay; (2) bad faith or dilatory motives on the part of the movant; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the opposing party; or (5) futility of the proposed amendment. Foman, 371 U.S. at 182. "Generally, this determination should be performed with all inferences in favor of granting the motion." Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir.1999) (citing DCD Programs Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir., 1987). Significantly, "[t]he party opposing amendment bears the burden of showing prejudice," futility, or one of the other permissible reasons for denying a motion to amend. DCD Programs, 833 F.2d at 187. Regarding the futility of amendments to add claims, "[a] district court does not err in denying leave to amend where the amendment would be futile ... or would be subject to dismissal." Saul v. United States, 928 F.2d 829, 843 (9th Cir.1991) (citations omitted). " A proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir., 1988). The plaintiff's proposed amendment is, indeed, futile. Title VII is, as the Government asserts, "an exclusive, preemptive administrative and judicial scheme for the redress of federal employment discrimination." Brown v. General Services Admin., 425 U.S. 820, 829 (1972); see 2

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also, White v. General Services Admin., 652 F.2d 913, 916 (9th Cir.1981); Hannon v. Chater, 887 F.Supp. 1303, 1318-20. (N.D.Cal. May 26, 1995) (Title VII). Plaintiff has requested leave of court to file a second amended Compliant in this action. The initial complaint was filed on November 21, 2003. However, the defendant was not served. On December 1, 2003 she filed her Amended Complaint. However, the Secretary of the Department of Veterans Affairs was not served until April 28, 2004. Now some two years years later she seeks to file yet another Amended Complaint. Her first amended complaint was 10 pages in length. The proposed amended complaint is 21 pages in length. It would appear that in all respects the Second Amended Complaint is untimely as the Scheduling Order and the Amended Scheduling Order dated December 9, 2005,established October 15, 2004 as the final date for filing motions to amend. Finally, the defendant respectfully moves pursuant to Rule 12(f), F.R.Civ.P. paragraphs 28 and 46 of the Amended Complaint and paragraphs 28 and 46 of the Proposed Amended. Further, the defendant moves pursuant to Rule 12 (b)(1), F.R.Civ. P., paragraphs 59 through 124 of the Proposed Amended Complaint. I. Request to Amend as to paragraphs 59 - 124 must be denied as futile While the plaintiff is correct that pursuant to Rule 15(a), F.R.Civ.P., an amendment of a complaint should be liberally granted. Despite the liberal policy favoring amendments, if amending the complaint would not correct the deficiencies or would otherwise be futile, amendment should be denied. See Barber v. Hawaii, 42 F.3d 1185, 1197-98 (9thCir.,1994). In this instance the proposed amendment to add a claim for "spoliation" of evidence lacks merit for several reasons. Deleo v. Rudin, 328 F.Supp.2d 1106,1114 (D.Nev. , 2004) . First, 42 U.S.C. 2000e16 is the exclusive remedy for employment discrimination and it contains no provision for bringing an action for "spoliation." Second, the plaintiff has failed to cite any other federal or Arizona statute or case law which creates a private cause of action for spoliation. Therefore, in the absence of subject matter jurisdiction his court which has limited 3

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jurisdiction, could offer no relief as plaintiff does not have a cause of action to pursue this new claim of "Bad Faith." Federal district courts are courts of limited jurisdiction, and a party seeking to invoke this Court's jurisdiction bears the burden of establishing jurisdiction. U.S. v. Sumner, 226 F.3d 1005, 1010 (9th Cir.2000); State of Idaho ex rel. Trombley v. U.S. Dep't of Army, Corps of Eng'rs, 666 F.2d 444, 446 (9th Cir.1982). Additionally, federal district courts lack jurisdiction over suits against the United States unless the United States has expressly and unequivocally waived its sovereign immunity. Balser v. Dep't of Justice, Office of U.S. Tr., 327 F.3d 903, 907 (9th Cir.2003). Therefore, where the Secretary of the Department of Veterans Affairs is the defendant, the plaintiff must show both subject matter jurisdiction and that the United States has waived its sovereign immunity. Powelson v. United States, By and Through Sec'y of Treasury, 150 F.3d 1103, 1104 (9th Cir.1998) ("[i]n an action against the United States, in addition to statutory authority granting subject matter jurisdiction, there must be a waiver of sovereign immunity." The Supreme Court has stated that dismissal of actions on the basis of subject matter jurisdiction is appropriate when the claim is "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974). Third, as a Scheduling Order has been entered, the standards of Rule 15 do not control the consideration of plaintiffs' motion. Upon the expiration of the deadline established in a Rule 16 scheduling order, a party seeking to amend its pleadings must satisfy the standards of Rule 16 before the amendment will be allowed. Johnson v. Mammoth Recreations, 975 F.2d 604, 607-08 (9th Cir.1992); Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir.1994); Riofrio Anda v. Ralston Purina, 959 F.2d 1149, 1154-55 (1st Cir.1992). In this matter, consideration of plaintiffs' ability to amend the complaint in governed by Rule 16(b), not Rule 15(a). Rule 16 provides that the scheduling order "shall not be modified except upon a showing of good cause and by leave of the district judge ..." Fed.R.Civ.P. 16(b); Johnson, 975 F.2d at 608. This rule was designed to allow the district court to manage its calendar and to facilitate 4

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more efficient disposition of cases by settlement or by trial. Johnson, 975 F.2d at 610-11; see Rule 16 Advisory Committee Notes (1983 Amendment). To permit a party to disregard a Rule 16 order by an appeal to the standards of Rule 15 would "undermine the court's ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier." Johnson, 975 F.2d at 610-11; see also Riofrio, 959 F.2d at 1155. The focus of the Rule 16 "good cause" inquiry is on the on the moving party's diligence, or lack thereof, in seeking amendment. Johnson, 975 F.2d at 608-09. The district court may allow a post-deadline amendment if the deadline could not reasonably have been met despite the diligence of the moving party. Id. If the moving party was not diligent in seeking amendment, leave to amend should be denied. Id. Once a party demonstrates good cause to amend under Rule 16(b), the court next must apply the standards of Rule 15(a) to determine whether the proposed amendment should be allowed. See e.g., Marcum v. Zimmer, 163 F.R.D. 250 (S.D.W.Va.1995); Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C.1987). If the plaintiff is relying on Arizona state law for a cause of action for "spoilation" such reliance is also without merit. Arizona has not recognized a separate tort of either negligent or intentional spoliation of evidence. La Raia v. Superior Court, 150 Ariz. 118, 121, 722 P.2d 286, 289 (1986);Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 249 n. 1, 955 P.2d 3, 5 n. 1 (App.1997); Tobel v. Travelers Ins. Co. 988 P.2d 148, 156 (Ariz. App. 1999). Second, even if Arizona recognized a cause of action in tort for spoliation of evidence, the plaintiff has failed to exhaust her mandatory administrative remedies pursuant to the Federal Tort Claims Act (FTCA). Brady v. U.S., 211 F.3d 499, 502(9th Cir., 2000); Jerves v. United States, 966 F.2d 517, 518-19 (9th Cir.1992); see 28 U.S.C. § 2675(a). The timely filing of an administrative claim is a jurisdictional prerequisite to the bringing of a suit under the FTCA, Caton v. United States, 495 F.2d 635 (9th Cir.1974), and, as such, should be affirmatively alleged in the complaint. A district court may dismiss a complaint for failure to allege this jurisdictional prerequisite. Martin v. United States, 436 F.Supp. 535 (S.D.Cal.1977). In rejecting plaintiff's spoliation claim the Tenth Circuit Court of Appeals in an FTCA 5

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action held in the case of Estate of Trentadue ex rel. Aguilar v. U.S., 397 F.3d 840, 862 (10th Cir., 2005): In Patel, the Oklahoma Supreme Court stated "[n]either spoliation of evidence nor prima facie tort (for acts constituting spoliation of evidence) has ever been recognized by this court as actionable." Id. at 1202. We have found no authority that suggests otherwise. See id. ("Although a few jurisdictions have adopted the tort of spoliation, most of the courts which have considered the issue have refused to recognize spoliation as an independent cause of action in tort.") (footnotes omitted). Because the "test established by the Tort Claims Act for determining the United States' liability is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred," Rayonier, Inc. v. United States, 352 U.S. 315, 319 (1957), and spoliation is not a recognized tort in Oklahoma, we conclude that the district court did not err in denying plaintiffs' claim. Therefore, leave to permit the filing of a Second Amended Complaint with respect to paragraphs 59 through 124 (BAD FAITH) must be denied as a matter of law. II Paragraphs 28 and 46 of the Amend Complaint and proposed Amended Complaint must be stricken. Paragraphs 28 and 46 of the Amended Complaint and the Proposed Amended Complaint

14 state: 15 16 17 18 In further support of the defendant's Motion to Strike said paragraphs the defendant 19 respectfully request the court to allow an incorporation by reference, as if fully set forth herein, 20 the arguments 21 Motion for Sanctions for Destruction of Evidence and the exhibits referenced therein and which 22 are in support of the defendant's arguments to strike said paragraphs. 23 24 25 26 27 28
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Plaintiff has applied for the Computer Specialist GS-34-5/7/9, under OC34/PVA, twenty-two times. 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 of the positions.

and exhibits set forth on pages 3 through 17 of the defendant's Response to

Title VII specifically requires a federal employee to timely exhaust his or her

I. Plaintiff failed to exhaust the mandatory administrative remedies regarding these events. II. All documents relevant to plaintiff's justiciable claims were preserved. III. Whether deemed admissible background evidence or not, laches precludes such evidence.
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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 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
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Position Vacancy Announcement ("PVA") files are crucial to Plaintiff's case." Motion for Sanctions, 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 for Sanctions, 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 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). 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 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. The issues in the justiciable claims pending before this Court, have been defined 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. Plaintiff simply avoids the only relevant question: whether or not the administrative 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 and Proposed Amended Complaint. The defendant was denied the opportunities afforded by the administrative process to timely investigate such allegations. 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.
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The plaintiff is barred by laches from raising the events referred to in paragraphs 28 and 46 in the Amended Complaint and Proposed Amended Complaint at the time of the trial in this matter.

see, EXHIBIT M (defense Requests to Admit # 58 through 75) EXHIBIT N (Plaintiff's May 13, 2005 letter).
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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. 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). 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 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
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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 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.) Clearly the prejudicial impact on the defendant, before a jury, is the primary goal of 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. 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. CONCLUSION Plaintiff has failed to meet the burdens of proof required to establish a viable claim
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The defendant also requests any further relief that the Court may deem

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See, Answer to Amended Complaint: SIXTH DEFENSE
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of BAD FAITH as set forth in paragraphs 59 through 124 of the Proposed Amended Complaint and this claim must be stricken. Further, for the reasons stated herein paragraphs 28 and 46 of the Amended Complaint and the Proposed Amended Complaint must be stricken and the plaintiff precluded from raising or in anyway relying upon these remote events at the time of trial. 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 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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