Free Answer to Amended Complaint - District Court of Arizona - Arizona

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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 6 DISTRICT OF ARIZONA 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Martha Slaughter-Payne, v. Plaintiff, CIV-03-2300-PHX-ROS ANSWER TO SECOND AMENDED COMPLAINT

R. James Nicholson, Secretary, Department of Veterans Affairs, Defendant.

The defendant, R. James Nicholson, Secretary, Department of Veterans Affairs, by and through undersigned counsel, by and through undersigned counsel, answers plaintiff's First Amended Complaint as follows: I. NATURE OF THE CASE 1. In response to paragraph 1 of plaintiff's Second Amended Complaint, the defendant admits the allegations of said paragraph.. 2. In response to paragraph 2 of plaintiff's Second Amended Complaint, this paragraph is a statement of plaintiff's reason for bringing the action, and to the extent that an answer is deemed to be required, deny. Additionally, the defendant denies that any unlawful employment practices or actions occurred. Further, plaintiff is not entitled to any form of relief in this lawsuit. 3. In response to paragraph 3 of plaintiff's Second Amended Complaint, this paragraph is a statement of the relief sought by the plaintiff, and to the extent that an answer is deemed to be required, the defendant denies the allegation of said paragraph. In further response to said paragraph, Martha Slaughter-Payne is female and not male as alleged. Additionally, this Court lacks subject matter jurisdiction to grant relief on the basis of "race" as plaintiff as failed to exhaust her administrative remedies regarding any alleged "racial discrimination." II. JURISDICTION AND VENUE 4. In response to paragraph 4 of plaintiff's Second Amended Complaint, the

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defendant admits only that jurisdiction lies under 42 U.S.C. § 2000e-16 and denies the remaining allegations of said paragraph. 5. In response to paragraph 5 of plaintiff's Second Amended Complaint, the defendant admits only that venue is proper under 42 U.S.C. § 2000e-5(f)(3) and denies the remaining allegations of said paragraph. III. PARTIES

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6. In response to paragraph 6 of plaintiff's Second Amended Complaint, the defendant admits only the first sentence of this paragraph. In further response to said paragraph the defendant admits that the plaintiff is a federal employee within the meaning of 42 U.S.C. § 2000e-16. The defendant denies the remaining allegations of said paragraph. 7. In response to paragraph 7 of plaintiff's Second Amended Complaint, the defendant admits that the Secretary of Veterans Affairs is amenable to suit as provided by 42 U.S.C. § 2000e-16(c).However, Anthony Principi is no longer the Secretary of the Department of Veterans Affairs and has not been since January 1, 2005, when R. James Nicholson succeeded Anthony Principi as the Secretary of the Department of Veterans Affairs. IV. FACTS 8. In response to paragraph 8 of plaintiff's Second Amended Complaint, the defendant admits only that the plaintiff remains employed by the defendant and denies the remaining allegations as plaintiff's factual characterizations are not accurate. 9. In response to paragraph 9 of plaintiff's Second Amended Complaint, the defendant admits only that the plaintiff has engaged in prior EEO activity at the Carl T. Hayden VAMC. However, the defendant objects to the use of the term "filed prior EEO cases" as unduly vague and would require the defendant to speculate as to the nature of plaintiff's allegations and, therefore, the defendant denies the remaining allegations of said paragraph. 10. In response to paragraph 10 of plaintiff's Second Amended Complaint, the defendant admits only that the plaintiff has engaged in prior EEO activity at the Carl T. Hayden VAMC. However, the defendant objects to the use of the term "filed an EEO case" as unduly vague and would require the defendant to speculate as to the nature of plaintiff's allegations and, therefore, the defendant denies the remaining allegations of said paragraph. 11. In response to paragraph 11 of plaintiff's Second Amended Complaint, the defendant admits only that the plaintiff has engaged in prior EEO activity at the Carl T. Hayden VAMC. However, the defendant objects to the use of the term "filed an EEO case" as unduly vague and would require the defendant to speculate as to the nature of plaintiff's allegations and, therefore, the defendant denies the remaining allegations of said paragraph. 12. In response to paragraph 12 of plaintiff's Second Amended Complaint, the defendant admits only that the plaintiff has engaged in prior EEO activity at the Carl T.

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Hayden VAMC. However, the defendant objects to the use of the term "filed an EEO case" as unduly vague and would require the defendant to speculate as to the nature of plaintiff's allegations and, therefore, the defendant denies the remaining allegations of said paragraph. 13. In response to paragraph 13 of plaintiff's Second Amended Complaint, the defendant, after reasonable investigation, admits only that the plaintiff has engaged in protected activities in the past and denies the remaining allegations in said paragraph. same. 14. In response to paragraph 14 of plaintiff's Second Amended Complaint, the defendant, after reasonable investigation, and specific discovery requests regarding this allegation denies the allegations in said paragraph. In further response to said paragraph, plaintiff refused to produce any documents or other information regarding this so-called "class action" suit or her involvement. Based on her failure to produce this information, this allegation lacks a good faith basis. 15. In response to paragraph 15 of plaintiff's Second Amended Complaint, the defendant, admits only that the plaintiff, in accordance with the provisions of the defendant's collective bargaining agreement with the American Federation of Government Employees Union, ceased to be a member of the AFGE local union on December 29, 2000. 16. In response to paragraph 16 of plaintiff's Second Amended Complaint, the defendant, after reasonable investigation, is without knowledge or information to form a belief as to the truth of the averments contained in paragraph 16 and therefore denies same. 17. In response to paragraph 17 of plaintiff's Second Amended Complaint, the defendant, after reasonable investigation, is without knowledge or information to form a belief as to the truth of the averments contained in paragraph 17 and therefore denies same. 18. In response to paragraph 18 of plaintiff's Second Amended Complaint, the defendant, after reasonable investigation, is without knowledge or information to form a belief as to the truth of the averments contained in paragraph 18 and therefore denies same. 19. In response to paragraph 19 of plaintiff's Second Amended Complaint, the defendant, after reasonable investigation, is without knowledge or information to form a belief as to the truth of the averments contained in paragraph 19 and therefore denies same. 20. In response to paragraph 20 of plaintiff's Second Amended Complaint, the defendant, admits only that the plaintiff's application of September 11, 2000, for the position of Computer Specialist GS-334-5/7/9 under OC34/PVA No. 2000-279B1, in which she indicated that she only wanted to be considered for a GS-09 position, was the only application raised before the EEOC and denies the remaining allegations of said paragraph. 21. In response to paragraph 21 of plaintiff's Second Amended Complaint, the defendant, admits the allegations of said paragraph. In further response, interviews of
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prospective candidates were not required. 22. In response to paragraph 22 of plaintiff's Second Amended Complaint, the defendant, admits the allegations of said paragraph. 23. In response to paragraph 23 of plaintiff's Second Amended Complaint, the defendant, admits the allegations of said paragraph. In further response, interviews of prospective candidates were not required. 24. In response to paragraph 24 of plaintiff's Second Amended Complaint, the defendant is without knowledge or information sufficient to form a belief as to the truth of the plaintiff's allegations and therefore denies the allegations of said paragraph. 25. In response to paragraph 25 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph. 26. In response to paragraph 26 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph. 27. In response to paragraph 27 of plaintiff's Second Amended Complaint, the defendant admits only that the plaintiff was non-selected because it was determined that the selectee had better qualifications for the specific position and the defendant denies the remaining allegations of said paragraph. 28. In response to paragraph 28 of plaintiff's Second Amended Complaint, the defendant, after reasonable investigation is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 28 and therefore denies same. In further response, plaintiff has abandoned her EEO claims based on her prior non-selections. Additionally, despite specific discovery requests to substantiate the allegations in paragraph 28, plaintiff has failed to produce any documents or other information regarding this so-called "22 applications." Based on her failure to produce such documentation, this allegation lacks a good faith basis and this allegations remain unsubstantiated. 29. In response to paragraph 29 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph. In further response to said paragraph, objection, it is vague as it does not give a time frame for when plaintiff was or is supposedly qualified for the position mentioned. 30. In response to paragraph 30 of plaintiff's Second Amended Complaint, the defendant the defendant is without knowledge or information sufficient to form a belief as to the truth of the plaintiff's allegations and therefore denies the allegations of said paragraph. 31. In response to paragraph 31 of plaintiff's Second Amended Complaint, the defendant, admits the allegations of said paragraph. 32. In response to paragraph 32 of the plaintiff's Second Amended Complaint, the defendant admits only that the defendant abolished the program within which the plaintiff was employed and denies the remaining allegations of said paragraph. 33. In response to paragraph 33 of plaintiff's Second Amended Complaint, the

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defendant denies the allegations of said paragraph. 34. In response to paragraph 34 of plaintiff's Second Amended Complaint, the defendant admits only that the defendant issued a notice of a pending reduction in force to the union local, as required by the collective bargaining agreement with the American Federation of Government Employees Union, on October 17, 2001 and denies the remaining allegations of said paragraph. Plaintiff has refused to produce a copy of the "notification" she allegedly received, therefore this allegations lack a good faith basis and remain unsubstantiated. 35. In response to paragraph 35 of plaintiff's Second Amended Complaint, the defendant, admits the allegations of said paragraph. 36. In response to paragraph 36 of plaintiff's Second Amended Complaint, the defendant, admits the allegations of said paragraph. 37. In response to paragraph 37 of plaintiff's Second Amended Complaint, the defendant, denies the allegations of said paragraph. The actual date was December 3, 2001. 38. In response to paragraph 38 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph. 39. In response to paragraph 39 of plaintiff's Second Amended Complaint, the defendant admits only that the plaintiff was not selected for a Human Resources Management Specialist position under Announcement No. 2001-215C1 as she was not qualified for said position and denies the remaining allegations of said paragraph. 40. In response to paragraph 40 of plaintiff's Second Amended Complaint, the defendant admits only that the plaintiff was determined to be not qualified for the Human Resources Management Specialist position under Announcement No. 2001-215C1 and denies the remaining allegations of said paragraph. 41. In response to paragraph 41 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph. 42. In response to paragraph 42 of plaintiff's Second Amended Complaint, the defendant, admits the allegations of said paragraph. Please note, plaintiff has duplicated paragraphs 39-41 in paragraphs 43-45.

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43. In response to paragraph 43 of plaintiff's Second Amended Complaint, see Answer to paragraph 39, incorporated herein by reference. 44. In response to paragraph 44 of plaintiff's Second Amended Complaint See Answer to paragraph 40, incorporated herein by reference. 45. In response to paragraph 45 of plaintiff's Second Amended Complaint, the defendant admits only that the plaintiff was determined to be not qualified for the Human Resources Management Specialist position under Announcement No. 2001-215C1 and denies the remaining allegations of said paragraph.

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46. In response to paragraph 46 of plaintiff's Second Amended Complaint, the defendant the defendant is without knowledge or information sufficient to form a belief as to the truth of the plaintiff's allegations and therefore denies the allegations of said paragraph. In further response, plaintiff has abandoned her EEO claims based on her prior non-selections. Additionally, despite specific discovery requests to substantiate the allegations in paragraph 46, plaintiff has failed to produce any documents or other information regarding this so-called "30 applications." Based on her failure to produce such documentation, this allegation lacks a good faith basis and this allegations remain unsubstantiated. 47. In response to paragraph 47 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph. In further response to said paragraph, this Court lacks subject matter jurisdiction to grant relief on the basis of "race" as plaintiff as failed to exhaust her administrative remedies regarding any alleged "racial discrimination." 48. In response to paragraph 48 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph. In further response to said paragraph, this Court lacks subject matter jurisdiction to grant relief on the basis of "race" as plaintiff as failed to exhaust her administrative remedies regarding any alleged "racial discrimination." 49. In response to paragraph 49 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph. In further response to said paragraph, this Court lacks subject matter jurisdiction to grant relief on the basis of "race" as plaintiff as failed to exhaust her administrative remedies regarding any alleged "racial discrimination." V. CLAIMS

16 (Race Discrimination in Violation of Title VII) 17 18 19 20 21 22 23 24 25 26 27 28 51. In response to paragraph 51 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph. In further response, plaintiff has failed to exhaust her administrative remedies on such claims. Therefore, this Court lacks subject matter jurisdiction to grant relief. (Promotion) 52. The defendant, Department of Veterans Affairs, incorporates by reference its answers to paragraphs 1-51, inclusive, as fully as though the same were set forth here at length. 53. In response to paragraph 52 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph .In further response, plaintiff has failed to exhaust her administrative remedies on such claims. Therefore, this Court lacks subject
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50. The defendant, Department of Veterans Affairs, incorporates by reference its answers to paragraphs 1 through 49, inclusive, as fully as though the same were here set forth at length. In further response to said paragraph, this Court lacks subject matter jurisdiction to grant relief on the basis of "race" as plaintiff as failed to exhaust her administrative remedies regarding any alleged "racial discrimination."

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matter jurisdiction to grant relief. (Retaliation) 54. The defendant, Department of Veterans Affairs, incorporates by reference its answers to paragraphs 1-53, inclusive, as fully as though the same were set forth here at length. 55. In response to paragraph 55 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph. In further response to said paragraph, this Court lacks subject matter jurisdiction to grant relief on the basis of the alleged denial of "opportunities" as plaintiff as failed to exhaust her administrative remedies regarding any such allegations. 56. In response to paragraph 56 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph. In further response to said paragraph, this Court lacks subject matter jurisdiction to grant relief on the basis of the alleged denial of "opportunities" as plaintiff as failed to exhaust her administrative remedies regarding any such allegations. 57. In response to paragraph 57 of plaintiff's Second Amended Complaint, the defendant, admits the allegations of said paragraph. 58. In response to paragraph 58 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph. (Bad Faith) 59. The defendant, Department of Veterans Affairs, incorporates by reference its answers to paragraphs 1-58, inclusive, as fully as though the same were set forth here at length. The defendant affirmatively alleges that paragraphs 60-124 fail to state a claim upon which this Court can grant relief, fail to state a cause of action, plaintiff's claims therein are outside the subject matter jurisdiction of this Court and plaintiff has failed to exhaust her administrative remedies regarding the factual and legal allegations raised in said paragraphs. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. In further response, plaintiff has abandoned her EEO claims based on her prior nonselections. Additionally, all documents relevant to Agency Case No. 200P-2674) "The Non-Selection Case" and Agency Case No. 200P-0644-2002100409 the "Transfer Case" were properly preserved and provide to the plaintiff during the administrative process and in response to plaintiff's discovery requests. The allegations in said paragraphs lack a good faith basis in law and fact. 60. In response to paragraph 60 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Further, that the plaintiff did, in fact, abandon any such claims regarding her non-selections. 61. In response to paragraph 61 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the
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remaining allegations of said paragraph. 62. In response to paragraph 62 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 63. In response to paragraph 63 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. 64. In response to paragraph 64 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Further, that the plaintiff did, in fact, abandon any such claims regarding her non-selections. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 65. In response to paragraph 65 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 66. In response to paragraphs 66 though 82, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit when the referenced documents were destroyed. Further, that the plaintiff did, in fact, abandon any such claims regarding her non-selections which are based on the documents referenced said paragraphs. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. 67. In response to paragraph 83 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Further, that the plaintiff did, in fact, abandon any such claims regarding her non-selections which are based on the documents referenced said paragraphs. Further, although plaintiff alleges unlawful destruction of VA
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documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 68. In response to paragraph 84 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. 69. In response to paragraph 85 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 70. In response to paragraph 86 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. 71. In response to paragraph 87 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Further, that the plaintiff did, in fact, abandon any such claims regarding her non-selections which are based on the documents referenced said paragraphs. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 72. In response to paragraph 88 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 73. In response to paragraph 89 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention
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regulations and policies at all times relevant to this lawsuit when the referenced records were destroyed. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. All documents relevant to Agency Case No. 200P-2674) "The Non-Selection Case" and Agency Case No. 200P-0644-2002100409 the "Transfer Case" were properly preserved and provide to the plaintiff during the administrative process and in response to plaintiff's discovery requests. The allegations in this paragraph lack a good faith basis in law and fact. 74. In response to paragraph 90 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 75. In response to paragraph 91 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. 76. In response to paragraph 92 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 77. In response to paragraph 93 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. 78. In response to paragraph 94 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no
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response is required and said are denied to the extent the Court would require a response. 79. In response to paragraph 95 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 80. In response to paragraph 96 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit when the referenced records were destroyed. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. All documents relevant to Agency Case No. 200P-2674) "The Non-Selection Case" and Agency Case No. 200P-0644-2002100409 the "Transfer Case" were properly preserved and provide to the plaintiff during the administrative process and in response to plaintiff's discovery requests. The allegations in this paragraph lack a good faith basis in law and fact. 81. In response to paragraph 97 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. 82. In response to paragraph 98 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. 83. In response to paragraph 99 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 84. In response to paragraph 100 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph.
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85. In response to paragraph 101 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. All documents relevant to Agency Case No. 200P-2674) "The Non-Selection Case" and Agency Case No. 200P-0644-2002100409 the "Transfer Case" were properly preserved and provide to the plaintiff during the administrative process and in response to plaintiff's discovery requests. The allegations in this paragraph lack a good faith basis in law and fact. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 86. In response to paragraph 102 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 87. In response to paragraph 103 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit when the referenced records were destroyed. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. 88. In response to paragraph 104 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. 89. In response to paragraph 105 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph.
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90. In response to paragraph 106 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 91. In response to paragraph 107 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. 92. In response to paragraph 108 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 93. In response to paragraph 109 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. 94. In response to paragraph 110 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit when the referenced records were destroyed. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. 95. In response to paragraph 111 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the
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remaining allegations of said paragraph. 96. In response to paragraph 112 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. 97. In response to paragraph 113 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. 98. In response to paragraph 114 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. 99. In response to paragraph 115 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Further, such documents are irrelevant, immaterial and inadmissible in this lawsuit. 100. In response to paragraph 116 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Further, during the course of discovery the defendant produced statistical information responsive to plaintiff's discovery requests. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. 101. In response to paragraph 117 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Further, during the course of discovery the defendant produced statistical information responsive to plaintiff's discovery requests. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. 102. In response to paragraph 118 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the
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remaining allegations of said paragraph. The defendant denies that he was on notice with respect to the preservation of documents beyond their routine destruction dates. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. All documents relevant to Agency Case No. 200P-2674) "The Non-Selection Case" and Agency Case No. 200P-0644-2002100409 the "Transfer Case" were properly preserved and provide to the plaintiff during the administrative process and in response to plaintiff's discovery requests. The allegations in this paragraph lack a good faith basis in law and fact. 103. In response to paragraph 119 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. All documents relevant to Agency Case No. 200P-2674) "The Non-Selection Case" and Agency Case No. 200P-0644-2002100409 the "Transfer Case" were properly preserved and provide to the plaintiff during the administrative process and in response to plaintiff's discovery requests. The allegations in this paragraph lack a good faith basis in law and fact. 104. In response to paragraph 120 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. All documents relevant to Agency Case No. 200P-2674) "The Non-Selection Case" and Agency Case No. 200P-0644-2002100409 the "Transfer Case" were properly preserved and provide to the plaintiff during the administrative process and in response to plaintiff's discovery requests. The allegations in this paragraph lack a good faith basis in law and fact. In further response to said paragraph, the defendant asserts that said paragraph fails top state a claim upon which relief can be granted. Further, this Court lacks subject matter jurisdiction to award any relief based on plaintiff's so-called "bad faith"action. The United States of America and its agencies have not waived sovereign immunity to be sued for "bad faith." 42 U.S.C.§ 2000e-16 is the exclusive remedy for employment discrimination jurisdiction and it does not contain a provision for bringing an action for "bad faith." Further, if this "bad faith" action sounds in tort, Arizona does not recognize and action for bad faith. Finally, even if Arizona tort law recognized an action for "bad faith" such action is barred by the statute of limitations and failure to exhaust
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administrative remedies. 105. In response to paragraph 121 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. The defendant denies that he was on notice with respect to the preservation of documents beyond their routine destruction dates. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. In further response, the plaintiff failed to timely exhaust her administrative remedies, abandoned her EEO claims and failed to timely file an action in Federal District Court. The defendant denies that he was on notice with respect to the preservation of documents beyond their routine destruction dates. All documents relevant to Agency Case No. 200P-2674) "The Non-Selection Case" and Agency Case No. 200P-0644-2002100409 the "Transfer Case" were properly preserved and provide to the plaintiff during the administrative process and in response to plaintiff's discovery requests. The allegations in this paragraph lack a good faith basis in law and fact. 106. In response to paragraph 122 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. The defendant denies that he was on notice with respect to the preservation of documents beyond their routine destruction dates. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. In further response, the plaintiff failed to timely exhaust her administrative remedies, abandoned her EEO claims and failed to timely file an action in Federal District Court. The defendant denies that he was on notice with respect to the preservation of documents beyond their routine destruction dates. This Court lacks subject matter jurisdiction regarding plaintiff's "negligence" claims. All documents relevant to Agency Case No. 200P-2674) "The Non-Selection Case" and Agency Case No. 200P-0644-2002100409 the "Transfer Case" were properly preserved and provide to the plaintiff during the administrative process and in response to plaintiff's discovery requests. The allegations in this paragraph lack a good faith basis in law and fact. 107. In response to paragraph 123 of plaintiff's Second Amended Complaint, the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of
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plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. In further response, the plaintiff failed to timely exhaust her administrative remedies, abandoned her EEO claims and failed to timely file an action in Federal District Court. The defendant denies that he was on notice with respect to the preservation of documents beyond their routine destruction dates. All documents relevant to Agency Case No. 200P-2674) "The Non-Selection Case" and Agency Case No. 200P-0644-2002100409 the "Transfer Case" were properly preserved and provide to the plaintiff during the administrative process and in response to plaintiff's discovery requests. The allegations in this paragraph lack a good faith basis in law and fact. 108. In response to paragraph 124 of plaintiff's Second Amended Complaint, including subparts (a) through (i), the defendant admits only that it followed and complied with approved records retention regulations and policies at all times relevant to this lawsuit. The defendant denies the remaining allegations of said paragraph. Defendant affirmatively alleges that the allegations of this paragraph present legal conclusions and questions of law to be determined solely by the court, to which no answer is required. Further, the defendant asserts that this paragraph also consists of plaintiff's factual conclusions and characterizations and conclusions of law to which no response is required and said are denied to the extent the Court would require a response. Further, although plaintiff alleges unlawful destruction of VA documents, such documents are irrelevant, immaterial and inadmissible in this lawsuit. In further response, the plaintiff failed to timely exhaust her administrative remedies, abandoned her EEO claims and failed to timely file an action in Federal District Court. The defendant denies that he was on notice with respect to the preservation of documents beyond their routine destruction dates. This Court lacks subject matter jurisdiction regarding plaintiff's "negligence" claims. All documents relevant to Agency Case No. 200P674) "The Non-Selection Case" and Agency Case No. 200P-0644-2002100409 the "Transfer Case" were properly preserved and provide to the plaintiff during the administrative process and in response to plaintiff's discovery requests. The allegations in this paragraph lack a good faith basis in law and fact. VI. EXHAUSTION 109. The defendant, Secretary, Department of Veterans Affairs, incorporates by reference its answers to paragraphs 1- 124, inclusive, as fully as though the same were set forth here at length. 110. In response to paragraph 126 of plaintiff's Second Amended Complaint, the defendant admits only that plaintiff filed a formal administrative complaint of discrimination under case No. 200P-2674 on December 28, 2000, that alleged some, but not all, of the facts alleged herein, and that an investigative report was issued on May 17, 2001 and defendant denies the remaining allegations of said paragraph. 111. In response to paragraph 127 of plaintiff's Second Amended Complaint, the defendant admits only that case No. 200P-2674 was submitted to the VA Office of Resolution Management for Investigation on April 2, 2001 and denies the remaining allegations of said paragraph. 112. In response to paragraph 128 of plaintiff's Second Amended Complaint, the

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defendant denies the allegations of said paragraph. 113. In response to paragraph 129 of plaintiff's Second Amended Complaint, the defendant admits only that the plaintiff contacted an EEO counselor on October 31, 2001, regarding some, but not all, of the facts alleged herein and denies the remaining allegations of said paragraph. 114. In response to paragraph 130 of plaintiff's Second Amended Complaint, the defendant admits only that the plaintiff filed a formal administrative Complaint of discrimination under case No. 200P-0644-2002100409 on December 3, 2001, that alleged some, but not all, of the facts alleged herein, and that an investigative report was issued on May 17, 2001, and defendant denies the remaining allegations of said paragraph. In further response to said paragraph, due to an election of remedies, this Complaint of Discrimination is not properly before this court and must be dismissed. 115. In response to paragraph 131 of plaintiff's Second Amended Complaint, the defendant admits only that that the plaintiff's formal administrative Complaint of discrimination under case No. 200P-0644-2002100409 was submitted to the VA Office of Resolution Management of investigation on April 1, 2002, and defendant denies the remaining allegations of said paragraph. In further response to said paragraph, due to an election of remedies, this Complaint of Discrimination is not properly before this court and must be dismissed. 116. In response to paragraph 132 of plaintiff's Second Amended Complaint, the defendant denies the allegations of said paragraph. In further response, the defendant avers that the EEOC issued an order granting the Agency's Motion to Dismiss for Lack of Jurisdiction on October 21, 2003. In further response to said paragraph, due to an election of remedies, this Complaint of Discrimination is not properly before this court and must be dismissed. VII. PRAYER FOR RELIEF

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117. Paragraph 131 [sic] of plaintiff's Second Amended Complaint and subparagraphs (a) through (I) is plaintiff's prayer for relief which does not contain allegations to which an answer is required, but insofar as an answer may be deemed to be required, defendant denies that plaintiff is entitled to any of the requested relief. VIII. JURY TRIAL DEMAND 118. Paragraph 132 (sic) of plaintiff's Second Amended Complaint does not allege facts and requires no response under the Federal Rules of Civil Procedure. By way of further answer, the Civil Rights Act of 1991 provides for a trial by jury in Title VII cases where compensatory damages are sought. 119. Defendant denies each and every allegation of the Second Amended Complaint that has not been admitted, denied, or otherwise qualified. WHEREFORE, the defendant respectfully requests the Court to dismiss plaintiff's Second Amended Complaint and grant the defendant such other and further relief as the Court may deem appropriate.

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FIRST DEFENSE The Second Amended Complaint states claims for which no relief can be granted. SECOND DEFENSE Some or all of plaintiff's claims are barred for failure to timely exhaust administrative remedies. Furthermore, some of plaintiff's claims are barred as to any remedies available under the Civil Service Reform Act. THIRD DEFENSE Plaintiff is barred from bringing any claim for which she did not timely comply with the applicable statutes and regulations. FOURTH DEFENSE All actions taken by the Department of Veteran's Affairs with regard to the plaintiff were taken for legitimate nondiscriminatory business reasons, and those reasons were and are not pretextual. FIFTH DEFENSE The actions of the defendant were based upon legitimate business reasons, lawful principles of personnel management and legitimate managerial, governmental and institutional needs. Further, these reasons were and are not discriminatory or pretextual. SIXTH DEFENSE The Second Amended Complaint, or portions thereof, is barred by collateral estoppel, res judicata, abandonment of claim(s), election of remedies, waiver, laches, estoppel and lack of subject matter jurisdiction. WHEREFORE, the defendant prays that: 1. The Second Amended Complaint be dismissed; 2. Plaintiff takes nothing by this action; 3. The Court enters judgment in favor of the defendant denying injunctive, declaratory, or any other form of relief on behalf of the plaintiff, and

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4. The Court grant such other and further relief as it deems proper and just. Dated this 25th day of September 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 September 25 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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