Free Response - 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. CIV-03-2300 PHX ROS RESPONSE TO PLAINTIFF'S MOTION TO STRIKE and OBJECTIONS REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant, R. James Nicholson, Secretary Department of Veteran's Affairs, by and through undersigned counsel, respectfully submits his Response to plaintiff's June 30 2006, Motion to Strike Defendant's Statement of Facts, affidavits and portions of the defendant's Memorandum of Points and Authorities. [Docket Entry # 101]. The defendant respectfully submits that the plaintiff `s Motion is without merit and must be denied. This Response is supported by the attached Memorandum of Points and Authorities and other matters of record. 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 1

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1 MEMORANDUM OF POINTS AND AUTHORITIES 2 ARGUMENT 3 Payne's counsel, on pages 6-12 of the Response, requesting the Court to strike the 4 5 Once again, Payne seeks sanctions against the defendant. 6 I. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 In short, "[t]he purpose of Rule 36(a) is to expedite trial by establishing certain 24 25 26 27 28 Payne is correct that certain paragraph numbers in DSOF are used twice. It was due to a computer software problem and not noticed prior to filing. The defendant will substitute and file a corrected version if the Court deems it appropriate. 2
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defendant's Motion for Summary Judgment, Statement of Facts, exhibits and affidavits.1

Response to motion to strike. a. Plaintiff's Motion to Strike defendant's Motion for Summary Judgment and Motion for Sanctions lacks merit. Contrary to Local Rule 7. 2(b), Payne has failed to set forth any case law or other

recognized authority to support her version of the law. She is simply wrong. "The Court alone shall determine the necessary and deserved weight of each fact alleged by each of the parties in this matter." White v. United States, 422 F.Supp.2d 1089, 1091-1092 (D. Ariz., 2006). Mere argument of her counsel is insufficient to support a motion to strike. While he is certainly entitled to his opinions, in the absence of citation of applicable case law, there is nothing for the defendant to respond to. It is not the responsibility of the defendant to search the case law to find decisions contrary to the personal opinions of opposing counsel. Furthermore, mere arguments or allegations are insufficient to defeat a properly supported motion for summary judgment. F.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir.1997); Burford v. Tremayne, 747 F.2d 445, 447 (8th Cir.1984). Therefore, Payne's Motions to Strike and for Sanctions must be denied. b. Plaintiff's Motion to Strike defendant's request for an Order pursuant to Rule 36, F.R.Civ.P. is specious.

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material facts as true and thus narrowing the range of issues for trial." Asea, Inc. v. Southern Pacific Transportation Co., 669 F.2d 1242, 1245 (9th Cir.1982). "Parties may not view requests for admission as a mere procedural exercise requiring minimally acceptable conduct. They should focus on the goal of the Rules, full and efficient discovery, not evasion and word play." Marchand v. Mercy Med. Ctr., 22 F.3d 933, 936-37 (9th Cir.1994). See also, Advisory Committee Notes, 1970 Amendments. Payne fails to cite any authority for her assertion that citing responses to Requests for Admissions (RTA) in a Statement of Fact (SOF) is improper. Compare, In Re United States of America v $493,850.00 Currency, 2006 WL 163570*7 (D.Ariz., 2006)(RTA in set forth in SOF.). Contrary to Payne's assertions, it is clear that a district court may grant summary judgement based on deemed admissions. O'Campo v. Hardisty, 262 F.2d 621, 624 (9th Cir., 1958). Further, evidence inconsistent with a Rule 36 admission is properly excluded. 999 v. C.I.T. Corp., 776 F.2d 866, 869-70 (9th Cir., 1985). Likewise, a party responding to a motion for summary judgment cannot attack issues of fact which have been admitted by that party pursuant to Rule 36, F.R.Civ.P. Kasuboski, 834 F.2d 1345, 1350 (7th Cir., 1987). Payne states that the defendant has improperly raised "a discovery dispute" thereby violating the Scheduling Order and/or Local Rule 7.2(j). Once again, Payne's arguments are contrary to federal law. In re Heritage Bond Litigation, 220 F.R.D. 624, 626 (C.D.Cal. 2004)(Plaintiffs chose to have the requests for admissions deemed admitted. In such circumstances, the application of Local Rule 37, which requires a pre-filing conference to resolve discovery disputes, would serve no purpose; there is no discovery dispute for the parties to attempt to narrow or settle.) As Payne did respond to the requests for admission, there is no discovery dispute.

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The Ninth and other Circuits have held that a motion to deem, as admitted, unresponsive, incomplete, or evasive responses in summary judgment practice is permitted. Asea, 669 F.2d at 1247 (1981); A. Farber & Partners, Inc. v. Garber, 2006 WL 2048486* 8 Fn.1 (C.D.Cal., 2006). Payne further argues that defense counsel should have attempted to resolve the "dispute." The record in this matter clearly demonstrates that plaintiff's counsel simply ignores such efforts. See, Defendant's October 3, 2005, Discovery Dispute Memorandum, at pp 6-8, Exhibits 4, 5, 11 and 16.[Docket Entry # 36]. Many of these RTA, e.g., DSOF Exhibit 1, RTA 21-24, 29-31, 35 (p.11), 36 (p.11-12), 37and 39; DSOF Exhibit 1a RTA # 82-88, 90-97; DSOF Exhibit 1b RTA #98116. were addressed to facts that Payne has the ultimate burdens of proof. Rule 36 (a), F.R.Civ.P; Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986).2 Since Payne has the burden of proof on the matters set forth in

these RTA's summary judgment based on the sufficiency of her responses is appropriate. Rule 36(a), F.R.Civ.P. Asea, 669 F2d. at 1246; In re Heritage Bond Litigation, 220 F.R.D. 624, 626-27 (C.D. Cal., 2004); Jenkins v. MCI Telecommunications, Inc., 973 F.Supp. 1133, 1137 (C.D., Cal., 1997). Payne's "objections" on pages 6-7 of the Response do not constitute a motion to withdraw or amend her prior responses. Fed. R.Civ.P. 36(b); United States v Kasuboski, 834 F.2d at 1350. Even if Payne's were to file a Rule 36(b) motion requesting leave to amend, withdraw or supplement prior responses, it is simply too late. Hadley v. United States, 45
If the nonmoving party will bear the burden of proof at trial on any element essential to its case, that party can withstand a motion for summary judgment only by making a showing sufficient to establish a genuine issue of fact regarding that element and a showing that the dispute properly may be resolved only by the fact-finder because it could reasonably be resolved in favor of either party. Celotex Corp. v. Catrett, 477 U.S. at 321.
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F.3d 1345, 1348 (9th Cir., 1995); Switchmusic.Com, Inc. v. U.S. Music Corp., 416 F. Supp.2d, 812, 818-19 (C.D. Cal., 2006). Payne had from November 30, 2005 until March 27, 2006, to amend her responses, request leave of court to withdraw her responses or seek a protective Order. She did nothing. Discovery closed on March 27, 2006 and the deadline for dispositive motions expired on May 30, 2006. Payne's failure to provide proper and complete responses to RTA on matters which directly relate to her burdens of proof, constitutes substantial prejudice to the defendant. Her opinion that she does not have to demonstrate the factual basis for allegations of unlawful retaliation in response to RTA and their associated interrogatories, warrants the relief requested by the defendant. Therefore, the Court is requested to deem as admitted, pursuant to Rule 36(b),F.R.Civ.P., the RTA's identified in the defendant's Statement of Facts. b. Plaintiff's Motion to Strike the affidavits of Huckaby and Ponce is specious3 Plaintiff has already moved to strike defense witnesses Ponce and Huckaby.

15 Docket Entry # 85. The defendant filed his Response. Docket Entry # 86. This prior 16 Motion to Strike is under advisement. However, now that their affidavits have been 17 presented, Payne once again asserts that these defense witnesses are "expert witnesses." 18 She argues they lack personal knowledge regarding the plaintiff, her allegations of 19 unlawful discrimination and were not involved in her EEO cases. Therefore, they must 20 be "expert witnesses." Additionally, as certain documents were not produced by the VA 21 during the EEO investigation, these affidavits must be stricken. Response, page 8, lines 22 16-27; page 9 lines 1-9. No case law is cited for these novel theories. 23 Such objections miss the mark. Personal knowledge of the type Payne discusses, 24 is immaterial as there were no interviews conducted in either the GS 5/7/9 Computer 25 26 27 28 The defendant incorporates by reference the Memorandum of Points and Authorities and exhibits of Docket Entry # 86. 5
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specialist "Non-Selection Case" nor the GS-11 position in the "Transfer Case." The selection process for both positions also did not include on-the job observations of the candidates for the positions. Therefore, Payne's reliance on Allen v IT&T, 164 F.R.D. 489 (D.Ariz., 1995). is misplaced. Allen was concerned with "on-the-job" assessments. This Courted noted: In support of its Motion to Strike, ITT supplied an additional affidavit from Barbara Cole, ITT's "Human Resource Assistant" and custodian of records. Cole states in her affidavit that she was responsible for coordinating the exit paperwork and benefits for the Plaintiff Employees. She further states that she has reviewed the personnel records of the Plaintiffs as well as those of other employees holding positions for which the Plaintiffs claim bumping rights. She describes the job histories of each Plaintiff--job titles, labor grades, and job families--and also provides specifics as to other employees in whose jobs Plaintiffs claim to have bumping rights. By the date of oral argument, both of Plaintiffs' objections had been cured. ITT had produced not only all of the documents upon which Ms. Cole had relied, but a second affidavit from her as well, which established all of the foundational elements required under Fed.R.Evid. 803(6). Allen, 164 F.R.D. at 491-92. Ponce and Huckaby reviewed documents prepared in the ordinary course of VA business in the "non-Selection" and "transfer" cases. See, August 11, 2006 affidavits. They performed the same qualification evaluations that they perform on a daily basis at other VA facilities. Fed.R.Evid. 803(6). The very documents they relied upon were furnished to the plaintiff as demonstrated by the bates stamped entries on the documents. See, August 11, 2006 affidavits of Huckaby and Ponce attached to the Defendant's August 18, 2006, Reply. The fact that they are not accused of discrimination in this matter, adds to the impartial nature of their assessments. Personal knowledge or perception acquired through review of records prepared in the ordinary course of business, or perceptions based on industry experience, is a sufficient foundation for lay opinion testimony. Rice v Kemper, 374 F.3d 675, 681 (8th Cir., 2004); Eckelkamp v. Beste, 315 F.3d 863, 872 (8th Cir., 2002)(Overruling plaintiffs objections that portions of the affidavits amount to undisclosed expert opinion and that a 6

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written report should therefore have been furnished under Fed.R.Civ.P. 26(a)(2) and the court's case management order.); Burlington Northern R. Co. v. State of Neb., 802 F.2d 994, 1004 (8th Cir.1986); C.H. Robinson Worldwide, Inc. v. Ghirardelli Chocolate Co. 2005 WL 1432199, *2 (D. Minn.2005)( "...each may testify to the knowledge that he has gained from his industry experience, and from his review of the records that have been prepared ... in the ordinary course of ... business pursuits."). Therefore, Payne's objections must be overruled. III. Response to Objections to Defendant's Statement of Facts. Interspersed within Payne's Response to defendant's Motion for Summary Judgment are objections to paragraphs and exhibits in the defendant's Statement of Facts. Further, objections are raised in Payne's "Controverted Statement of Facts" also attached to the Response. Payne's Objections lack merit and must be overruled. a. Objections set forth in Payne's Response. On page 7, lines 12-17, of the Response, Payne moves to strike DSOF paragraphs 3-5,9-15, 17 and 35, The basis for this request is that they "were not used in Defendant's motion" and therefore they are "nonmaterial facts and no weight can be given to them." Once again Payne cites no authority for her novel assertion. Payne admitted the facts in DSOF ¶' #2-5, 10-15, 17 and 35 in RTA # 1-4, and 9-13. DSOF ¶'s 15, 17 and 35 were indeed relied upon in the defendant's Motion for Summary Judgment. Therefore, Payne's Objections must be overruled. On page 7 line 23-26, of the Response, Payne moves to strike DSOF ¶ 28 and DSOF Exhibits 17 and 18. She asserts that ¶ 28 and its exhibits are not admissible. Payne re-attached DSOF Exhibit 18 as Exhibit 19 to her Response. Payne is partially correct. The pages in Payne's Exhibit 19 have been handnumbered. Undersigned counsel, in error, attached records which were mistakenly believed to have been administrative records in the "Non-Selection Case." Therefore, the

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defendant withdraws from DSOF Exhibit 18 those pages that correspond to pages 7­14 of Payne's Exhibit 19. However, pages, 7-14, in Payne's Exhibit 19, WERE NOT relied upon by either Huckaby or Ponce in creating their affidavits. Therefore, this inadvertence by undersigned counsel, although regrettable, was harmless error. The remaining pages of DSOF Exhibit 18 and DSOF Exhibit 17 are bates stamped and were produced in verified responses, as official VA business records, in response to plaintiff's Request for Production. Payne has already taken the position that such documents produced by the opposing party are admissible. Likewise, DSOF ¶ 28 is based on information contained in the administrative record in the "Non-Selection Case," DSOF Exhibits 17, 18 and the Declarations of Robert Jones, Richard Moore and Robert Pyle. Therefore, such objections must be overruled. On page 7 line 27 and page 8 lines 1-2, of the Response, Payne requests the striking of DSOF ¶'s 1, 21 and 51 because "they fail to refer to the specific record where the facts can be found." DSOF ¶ 1 is an accurate summary of the procedural background of this matter and it is so labeled. These facts are in the Court's record and have been cited repeatedly by both parties. DSOF ¶ 21 merely states the obvious regarding the VA form in question. DSOF ¶ 51 merely reflects a true statement. Payne has not presented admissible evidence to support her claims of "qualifications" nor has she demonstrated that the legitimate reasons given by the defendant were pretextual. b. Objections raised in Payne's Controverted Facts. It should be noted that when you apply the same "rules" that Payne used to strike paragraphs in the DSOF, Payne violates her own rules in paragraphs 25, 30-38, 44, 45, 51, 53, 55, 57-62, 66-68, 73, 74,77-79, of her "CONTROVERTED STATEMENT OF FACTS FOR PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT." In any event, particular discussion of paragraphs 36, 45, on pages 8 and11, is

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required. Once again Payne states that the defendant has admitted destroying the "comparative data" in the "Non-Selection Case." Payne's accusations are absurd. Tunnell v. Powell, 219 F. Supp.2d 230, 243(N.D. Calif., 2002) ("Moreover, allegations of the intentional destruction of evidence are very serious, and the court notes that Tunnell has made this allegation without any support in either the record or case law. ...Tunnell's counsel should ensure, prior to engaging in such ad hominem attacks, that the evidence supports her assertions."). These documents were produced during discovery, attached as exhibits 7 and 18 to the Defendant's Motion for Summary Judgment, as exhibit 35 to plaintiff's Motion for Summary Judgment and as exhibits 5, 18, and 19 to plaintiff's Response. Therefore, Payne's Motion to Strike the specific DSOF paragraphs and exhibits must be denied. IV. Response to Objections raised in Exhibit 1 to Payne's Response to the Motion for Summary Judgment. Payne's objections to DSOF # 1-5, 7, 16, 17, 20, 21, 23, 24, 26, 31-33, 34-37,

15 38-41, 49, 52, and 53, lack merit and must be overruled. Rule 56(c) expressly permits 16 reliance on discovery responses. With respect to Payne's remaining objections please see 17 White v. United States., 422 F.Supp.2d 1089, 1091-1092 (D. Ariz., 2006). 18 Payne's Objection to DSOF #54 impermissibly raises new charges of retaliation 19 not set forth in her EEO Complaint in the "Transfer Case" Agency Case Agency Case No. 20 200P-0644-2002100409, when she sought to amend her complaint on March 4, 2002 and 21 which was granted on March 29, 2002. Payne did not assert retaliation based upon these 22 new assertions: 23 24 25 26 27 28 9 " Furthermore, Plaintiff was required not only to sign in and out, but to personally inform Max Avilez and/or Martin Lieberman before she left the office. Additionally, Plaintiff was required to provide Mr. Avilez and Mr. Lieberman a journal of her daily activities which included but not limited to; who Plaintiff spoke to on the phone, what the conversation was regarding, who Plaintiff met with in person, what the meeting was regarding."

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Payne failed to exhaust her administrative remedies regarding these new allegations, her objections are without merit and in this case, must be stricken. Vinieratos v. United States, 939 F.2d 762, 768 (9th Cir.1991). CONCLUSION For all of the foregoing reasons, plaintiff's objections must be overruled. 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 CERTIFICATE OF SERVICE I hereby certify that on August 18, 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

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