Free Reply to 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, Plaintiff, v. R. James Nicholson, Secretary Department of Veteran's Affairs, Defendant. Defendant, R. James Nicholson, Secretary Department of Veteran's Affairs, by and CIV-03-2300 PHX ROS REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT

15 through undersigned counsel, respectfully submits his Reply to plaintiff's Response to 16 defendant's Motion for Summary Judgment. 17 The defendant respectfully submits that the plaintiff has failed to establish that 18 genuine issues of material fact are present and the defendant is entitled to Summary 19 Judgment as a matter of law. 20 This Reply is supported by the attached Memorandum of Points and Authorities and 21 other matters of record. 22 23 24 25 26 27 28 Respectfully submitted this 18th day of August 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION In order to defeat the defendant's Motion for Summary Judgment the plaintiff must

4 establish with specific and substantial evidence that the legitimate reasons given by the 5 defendant for his decisions and actions were pretext for unlawful retaliation. Stegall v.
th 6 Citadel Broadcasting Co., 350 F.3d 1061, 1066-67 (9 Cir., 2004); Steckl v. Motorola, Inc., th 7 703 F.2d 392, 393 (9 Cir., 1983).

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A motion for summary judgment must be granted when "the pleadings, depositions,

9 answers to interrogatories, and admissions on file, together with the affidavits, if any, show 10 that there is no genuine issue as to any material fact and that the moving party is entitled to a 11 judgment as a matter of law." Fed.R.Civ.P. 56(c). On an issue as to which the nonmoving party will have the burden of proof at trial, 12 13 however, the movant can prevail merely by pointing out that there is an absence of evidence 14 to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 15 If the moving party meets its initial burden, the nonmoving party must then set forth, by 16 affidavit or as otherwise provided in Rule 56, "specific facts showing that there is a genuine 17 issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Fed.R.Civ.P. 18 56(e). 19 20 21 ARGUMENT INTRODUCTION Payne has failed to make the showing sufficient to establish the existence of the

22 elements essential to her case, and on which she will bear the burden of proof at trial. Celotex 23 Corp., 477 U.S. at 322. See also Fed.R.Civ.P. 56(e)If a plaintiff has asserted a prima facie 24 retaliation claim, the burden shifts to the defendant to articulate a legitimate 25 nondiscriminatory reason for its decision. If the defendant articulates such a reason, the 26 plaintiff bears the ultimate burden of demonstrating that the reason was merely a pretext for a th 27 discriminatory motive. Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9 Cir., 1987). 28 2

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1 I. 2
a.

Plaintiff has not established that her non-selection for the Computer Specialist, above the GS-5 level or the GS 11 Human Resources Position was retaliatory.
The Non-Selection for Computer Specialist Position (Agency Case No. 200P2674).

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When presented with specific facts regarding the fact that she was not as qualified as

5 Pyle for the Computer Specialist, Payne moves to strike the defendant's exhibits and the 6 affidavits of Ponce and Huckaby. Payne further relies on the fact that she was placed on the 7 "qualified list" for the Computer Specialist position with a rating of GS-9 as her "evidence" 8 that there is a genuine issue of material fact. Nothing could be further from the truth. Payne 9 has not come forward with either direct evidence, or "specific" and "substantial" 10 circumstantial evidence, that the defendant's stated reasons for the adverse actions were a 11 mere pretext to retaliate against her. Cornwall v. Electra Central Credit Union, 439 F.3d 12 1018, 1030-31, and fn.9 (discussion of post-Costa decisions) (9th Cir. 2006); Villiarimo v. 13 Aloha Island Air, Inc., 281 F.3d 1054, 1062-63 (9th Cir. 2002); Godwin v. Hunt Wesson, 14 Inc., 150 F.3d 1217, 1222 (9th Cir.1998). 15 Instead Payne makes the remarkable statement1 that Robert Jones had nothing to do

16 with the selection process and that DSOF Exhibit 17 must be stricken. 17 Robert Jones and Richard Moore, in their Declarations, explain why she was not

18 selected for the Computer Specialist position. Jones Declaration at pages 7-10, 12-14 19 (experience more important than training); Moore Declaration at pages 6-13. See also, 20 affidavits of Huckaby and Ponce. 21 While Nancy Campbell did indeed rank Payne at a GS-9 level2 , several other

22 candidates were likewise ranked higher than GS-5. Campbell Declaration at pages 5-11. 23 24 25 26
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Response, at page 13, lines 2-3.

On page 14, lines 1-2, Payne cites Lindsey v. SLT Los Angeles, LLC, 432 F.3d 954 (9th 27 Cir., 2005). This opinion was superceded. 447 F.3d 1138 (9th Cir., 2006). 28 3

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1 Campbell was of the opinion that Payne's non-selection was not the result of discrimination. 2 Campbell Declaration at page 12. 3 Additionally, the affidavits of defense witnesses Huckaby and Ponce fully explain the

4 requirements for the Computer Specialist position and why Payne was less qualified for that 5 position than the selectee. In response Payne offers nothing more than statements by her 6 counsel that unlawful discrimination was the cause of her non-selection. Plaintiff's counsel 7 has not established himself as an "expert" on VA rules, regulations, policies and promotional 8 requirements. Just because he repeats the same arguments over and over does not constitute 9 admissible evidence. Summar v. Potter, 355 F. Supp.2d 1046, 1056 (D. Alaska, 2005). 10 Payne took only one deposition, John R. Fears, in the three years this case has been

11 pending. Payne has alleged that the defendant intentionally destroyed evidence "critical" to 12 her "continuing violations" claims. However, the"continuing violation" theory that was 13 abolished over four years ago. Davidson v. Am Online, Inc., 337 F.3d 1179, 1185 (10th Cir., 14 2003). Most recently, in her Contested Statement of Facts, she asserts that the defendant has 15 admitted destroying the "comparative data" regarding the Computer Specialist position. 16 However, Payne attached these very same documents to her Motion for Summary Judgment 17 and her Response to the dependant's Motion for Summary Judgment. The relevant 18 documents were preserved. 19 Payne did not meet these requirements above the GS-5 level, nor did any of the other

20 candidates. DSOF ¶'s 26, 27. However, Pyles had actual experience with the computer 21 systems in question and, therefore, his selection had a good faith, legitimate and non22 discriminatory basis. DSOF ¶ 26-29. Jones Declaration, Huckaby and Ponce Affidavits. As 23 Payne has failed to establish that these stated reasons were pretext for discrimination, 24 summary judgment must be granted to the defendant on this issue. 25 26 27 28 4

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1 b. 2

Plaintiff lacked the minimum qualifications for the GS-11 Human Resource Management Specialist position. With respect to the GS-11 position, it is just more of the same. Payne was deemed not

3 qualified to make the list of eligible candidates. According to Payne, the defendant "illegally" 4 changed the experience requirements for this position. Response, p. 17, l.10. Illegally 5 according to whom? There is no admissible evidence to support Payne's assertion. 6 The affidavits of defense witnesses Huckaby and Ponce fully explain the requirements 7 for the GS-11 position and why Payne was not qualified for the position. Plaintiff's response 8 is to strike their affidavits and submit more unsubstantiated and unsupported statements by 9 her attorney. 10 Payne argues that her prior experience as a GS-9 asthmatically qualified her for the 11 GS-11 Human Resource Specialist position. Even if this Court were to strike the affidavits of 12 Huckaby and Ponce, Payne has ignored the Declaration of Judith Law. 13 Judith Law stated under oath in her April 12, 2002, Declaration that Payne's GS-9 14 experience as a vocational rehabilitation specialist did not represent the required 15 experience for the GS-11 position. Payne did not have the minimum one year requirement of 16 GS-9 experience in Human Resources. Law Declaration at pages 9 - 15. Law also 17 disqualified another applicant who also had prior GS-9 experience, which did not qualify her. 18 Law Declaration at pages 15-16. 19
Payne has failed to meet her burden of proof that these legitimate reasons for her failure to

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qualify for the GS-11 position were pretext for unlawful discrimination,.

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Therefore, the defendant is entitled to Summary Judgment on these issues.

22 I. 23 24 Plaintiff has failed to establish pretext in her "Transfer Case" (Agency Case No. 200P-0644-2002100409). In his Summary Judgment Memorandum the defendant set forth his legitimate reasons

25 for the actions taken and the decisions made regarding the issues presented in the "Transfer 26 Case." 27 28 5

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In her Response Payne moves, on page 10, lines 10-11, to strike sections III, IV, V

2 and VI of the defendant's Memorandum in support of his Motion for Summary Judgment.3 3 Her Motion to Strike is based on the argument that in these sections the "Defendant has 4 failed to cite to the record or to any affidavit, which will support the absence of a genuine 5 issue of material fact." The reason that the defendant cannot point to records or affidavit 6 regarding these matters is precisely because Payne has not presented any evidence or 7 arguments on these issues and upon which she bears the burden of proof. 8 On issues which the nonmoving party will have the burden of proof at trial, the

9 movant can prevail merely by pointing out that there is an absence of evidence to support the 10 nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 11 These sections raised matters of law. Payne's failure to respond warrants summary

12 judgment for the defendant on the issues set forth in sections III, IV, V and VI. 13 a. 14 Plaintiff's has failed to prove "pretext." The parties are in agreement that at various times the plaintiff engaged in "protected

15 conduct."4 16 In her Response at pages 14-18 seeks to establish a causal link between her prior

17 protected activity and her "Transfer Case" retaliation claims. While it is true that on August 18 31, 2001 participated in a protest march. It is also true that by no later than August 27, 2001 19 the VA employees at the Carl T. Hayden Medical Center were informed that due to fiscal 20 constraints will have an impact on "nearly every aspect of the Medical Center." John R. Fears 21 22 23 III. Plaintiff has failed to prove pretext; IV. Plaintiff has not identified similarly situated individuals; V. Plaintiff has not established a causal link; VI. Payne's race 24 discrimination, disparate treatment and disparate impact claims are non-justiciable. 25 Payne has alleged she represented VA employees in union grievances. She has never 26 set forth the dates of such representation. Therefore, such allegations lack a proper foundation to establish a causational link and must be disregarded for establishing pretext. Contested 27 Statement of Facts, p. 16, ¶'s63-65. 28 6
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1 letter to Medical Center Employees, DSOF, Exhibit 1d.5

Payne's "Transfer Case"

2 allegations of retaliation are based on events which occurred subsequent to August 27, 2001. 3 Payne has failed to present evidence that the Carl T. Hayden Medical Center was not

4 faced with a fiscal crisis and that adjustments to programs had to be made. Payne's 5 assertions that the actions that affected her were unnecessary or unwarranted do not raise a 6 genuine issue of material fact. Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir., 7 1996). 8 Payne continues to argue that she was unlawfully RIFFED. At no time has she

9 produced a document addressed to her so stating. Her sole reliance for this assertion is John 10 R. Fears letter to the Union dated October 15, 2001 addressed to the President AFGE L 11 I/2382. DSOF Exihbit 1d, bates number 008-000009. This letter begins with the statement by 12 Fears: "In accordance with the Master Agreement ... the agency hereby provides you with 13 notification that it intends to proceed with a reduction-in-force...." Payne asserts that the 14 Master Agreement contained no such requirement, this fails to raise a genuine issue of 15 material fact. She has failed to present specific and substantial evidence that Fears 16 interpretation of the Master Agreement provisions was pretext for retaliation. 17 Payne also argues that with over 2000 positions at the VA hospital there was no

18 reason to involuntarily transfer her, on December 4, 2001, to the GS-9 Employee Relations 19 Specialist position and that this was in retaliation for her protected activity.6 DSOF Exhibit 20 2. 21 Payne has the burden of proof, not the defendant, that (1) there was a vacancy in one

22 or more positions and (2) she was qualified for the position(s). At no time has she met this 23 burden of proof. Chavez v. Tempe Union High Sch. Dist. No. 213, 565 F.2d 1087, 1091-92 24 25 26 27 28
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See also, DSOF Exhibits 1e 9/26/2001 letter, 1f, 24, 26-28. Controverted Statement of Facts, p. 15, ¶ 60. 7

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1 (9th. Cir., 1977); Kaster v. Safeco Ins. Co. of America, 212 F. Supp. 2d 1264 (D. Kan., 2 2002). 3 b. 4 Payne has gone to great lengths to discuss each and every event subsequent to August 5 27, 2001, which she has deemed unlawful retaliation. The parties agree that the proximity of 6 time between protected activity and an adverse action may support an inference of causation. 7 8 The the proximity in timing as to the events subsequent to August 27, 2001, was 9 legitimately dictated by external forces, a fiscal crisis for the Carl T. Hayden V.A. Medical 10 Center. Payne has demonstrated nothing more that a sequence of events in a context where 11 there were obviously good and legitimate reasons for the challenged actions of the defendant. 12 Chen v. County of Orange, 116 Cal. Prptr. 2d 786, 789 (App. 2002). 13 Temporal proximity evidence derives its circumstantial fre from the assumption that 14 protected activities and adverse actions are both relatively infrequent. If they occur in rapid 15 succession, the likelihood of a causal or other connection between them is increased. Where, 16 as here, an employee systematically engages in protected activity, proximity in time will no 17 longer effectively connote increased probability of a causal connection between the adverse 18 action and the protected activity. Under the circumstances of this case, it is obvious that the 19 alleged adverse actions will ipso facto be temporally proximate to a protected activity. 20 Therefore, this Court should be leary of attributing too much weight to Payne's 21 circumstantial evidence of retaliation. Dilettoso v. Potter, 2006 WL 19146 * 12-14 (D. Ariz., 22 2006). 23 Conclusion 24 In sum, although afforded the opportunity over the past three years to produce 25 admissible and relevant evidence, Payne's has utterly failed to come forward with admissible 26 evidence even suggestive of retaliation. 27 28 8 Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir.,2000). Plaintiff has not established a causal link between her prior protected activity and her "Transfer Case" allegations of retaliation.

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She has taken only one deposition and has litigated this matter by filing numerous

2 motions for sanctions, motions to strike, unsubstantiated "testimony" by her attorney and 3 material misrepresentations to this Court. 4 WHEREFORE, the defendant prays that the Court grant defendant's motion and enter

5 summary judgment and dismissal of the Amended Complaint. 6 7 8 9 s/ John R. Mayfield 10 11 12 CERTIFICATE OF SERVICE 13 I hereby certify that on August 18, 2006, I electronically transmitted the attached 14 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: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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 s\ John R. Mayfield Office of the U.S. Attorney

Respectfully submitted this 18th day of August 2006. PAUL K. CHARLTON United States Attorney District of Arizona

JOHN R. MAYFIELD Assistant U.S. Attorney

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