Free Reply to Response to Motion - District Court of Arizona - Arizona

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Rosval A. Patterson, SBN 018872 Patterson & Associates, P.L.L.C. 777 East Thomas Road, Suite 210 Phoenix, Arizona 85014 Tel.: (602) 462-1004 E-mail: [email protected] Attorney for the Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Martha Slaughter-Payne, Plaintiff, vs. ANTHONY PRINCIPI, SEC DEPT. OF VETERANS AFFAIRS AGENCY, Defendant.

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Case No.: CV03-2300 PHX ROS

PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

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Martha Elizabeth Slaughter-Payne (hereinafter referred to as "Liz") hereby files
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her Reply in Support of Plaintiff's Motion for Partial Summary Judgment on her Non18

Promotion and Retaliation claims. Summary Judgment should be granted as there are no
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disputed facts on this matter. Defendants' Response does not dispute one fact listed in
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Plaintiff's Motion.
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This motion is supported by the following Memorandum of Points and
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Authorities filed concurrently herewith.
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DATED this 18th day of August, 2006

Patterson & Associates, P.L.L.C.

s/ Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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MEMORANDUM OF POINTS AND AUTHORTIES I. ARGUMENT A. DEFENDANTS FAILS TO PRESENT ANY GENUINE ISSUES OF DISPUTED FACT REGARDING LIZ'S PROMOTION AND RETALIATION CLAIMS AND SUMMARILY JUDGMENT MUST BE GRANTED. i. Defendant Failed to Present any Genuine Issue of Material Fact Regarding Their Legitimate NonDiscriminatory Reason of "Unknown".

Plaintiff applied for PVA numbers 97-175B1; 97-148B1; 97-137B1; 98-204B1; 98-165B1; 98-166B1; 98-028B1; 98-007B1 and 2001-169C2. According to Defendants Response to Plaintiff's Request for Production #3, the information regarding the candidates selected is unknown. Defendant fails to respond to the fact that Liz was not selected on PVA file 2001-169C2 which is EEO file #200P-0644-2002100409. Defendant lists "Unknown" as to who was selected. This file was not dismissed by the EEO until after Plaintiff filed her complaint. If Defendants reason for the destruction was legitimate then where are these PVA files for EEO #200P-0644-2002100409? Defendants have not presented any material fact that would preclude summary judgment for promotion discrimination on the unknown files. ii. Defendant Failed to Present any Genuine Issue of Material Fact Regarding the Issues of Promoting Linda Edwards.

Liz was more qualified than Linda Edwards who was selected for the 97-139B1, 97A-083B1, 98-02B1 position EEO Complaint # 98-3542. (See Attached Exhibit #1.) Ms. Edwards's selection occurs after the human resource department determined that she not qualified to fill that position as she had "no specialized expertise in computers such as

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software or hardware setup and no instruction/training background". Her Qualification Determination as marked `not qualified'. In Defendants response they failed to respond to this allegation therefore there is no genuine issue of material fact and summary judgment must be granted. iii. Defendant Failed to Present any Genuine Issue of Material Fact Regarding the Promotion of Wayne Bivens and John Legendre.

Wayne Bivens, whose prior position was that of a File clerk, was selected for PVA
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98-114B1; EEO Complaint # 98-3542. John Legendre, whose prior position was that of a
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house keeper, was selected for PVA 99-023B1; EEO Complaint # 99-3654.
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Mr. Bivens

and Mr. Legendre only qualified at the entry level; while Liz qualified at the journeyman level; GS-9. Applicants qualifying at a higher grade are more experienced and need less
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training for the position. By this time Plaintiff had already received her Microsoft
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Certified Professional certification ("MCP"). EEO Complaint # 98-3542 was and still is
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in the appeal process at the time Liz filed her complaint. As noticed by the fact that no
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right to sue letter has been issued. EEO Complaint # 99-3654 was still active as of the
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date of Liz filing her complaint. Defendants failed to respond to these allegations,
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therefore there is no genuine issue of material fact and summary judgment must be
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granted.
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iv.

Defendant Failed to Present any Legitimate NonDiscriminatory Reason for their Retaliatory RIF of Liz.

It is undisputed that the RIF was illegal and without authority. Defendant has not presented any evidence of a legitimate nondiscriminatory reason for Liz's single person RIF. It is undisputed that on the December 3, 2001, VHA denied the VAMC RIF Authority for Liz. That being the case, the RIF which was issued on October 15, 2001,
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was not recognized by VHA and VAMC had no legal authority. Therefore Plaintiff's assertion that Defendant's reason for the RIF is non-legitimate and is undisputed by the facts. The court must grant summary judgment. B. PLAINTIFF'S MARCH 4, 2002 CLAIMS HAVE NOT BEEN ABANDONED.

The March 4, 2002 claims were amended and added to complaint #200P-06442002100409. (See Attached Exhibit #2) Additionally, Defendants own interrogatory answer shows that the March 4, 2002 complaint is still in the hearing stage. (See Defendant 1ST.SET-INTERROGATORIES #004-000010 (See Attached Exhibit #3) Defendants allegation in there response are completely false. The reason for Defendant's false claim is because the defendant destroyed the evidence which is needed to show the progression of Plaintiff's complaints. C. THE AFFIRMATIVE ACTION PLANS ARE ADMISSABLE.

Evidence that an employer has failed to live up to an affirmative-action plan is relevant to the question of discriminatory intent. Gonzalez v. Police Dept., 901 F.2d 758, 761 (9th Cir. 1990). Plaintiff has clearly shown the Defendants affirmative-action plan required them to hire a black female in the Computer Specialist Position. The VA never followed the plan. The failure of an employer to follow its own affirmative action program constitutes significant evidence in a Title VII suit against the employer. Contra Yatvin v. Madison Metro. School Dist., 840 F.2d 412, 416 (7th Cir. 1988). Additionally the affirmative action plans are admissible as Under Federal Rule of Evidence Impeachment. The defendant in a verified answer on their interrogatories denied the existence of any Affirmative Action Plan. (See Interrogatory Question 7 Attached Exhibit #4.)
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D.

DEFENDANTS ARGUMENT REGARDING THE DESTRUCTION OF EVIDENCE FAILS TO COVER SEVERAL PVA FILES.

Liz made several EEO Complaints for promotion and retaliation. Defendants attempt to confuse the court by lumping all of the complaints into the 1998 EEO Complaint # 98-3542. EEO Complaint #98-3542 only consist of PVA files 98-007B1; 98-022B3; 98-028B1; 98-060B1; 97-139B1; 98-028B1; 98-165B1; 98-166B1 and 98114B1. However, Liz's complaints regarding PVA file 99-023B1 were filed in 1999 under EEO Complaint #99-3654. Liz's complaints regarding PVA files 98-105B1; 98145B3; 98-152B3; 98-204B1 and 98-214B2 were filed on 1999 under EEO Complaint # 99-1321. And Liz's complaint regarding PVA files 2000-080B1; 2000-279B1; 2000251B1 were filed in 2000 under EEO Case file # 200P-2674. On these EEO Complaint Files #99-3654 and 99-1321 were consolidated into EEO Case file #99-3654 on June 14, 1999. EEO files 99-3654; 99-1321 and EEO case file # 200P-2674 were either still in the formal complaint stage, hearing or investigative stage upon the date of Liz filing her complaint. (See Defendant's 1ST.SET-INTERROGATORIES #004-000010 Attached as exhibit #3.) Clearly none of these files, even under Defendant's explanation for

destruction (which Liz disputes) should have been destroyed. E. DEFENDANT'S RESPONSE IS FULL OF CONCLUSIONARY STATEMENTS OF THE ATTORNEY UNSUPPORTED BY FOUNDATIONAL EVIDENCE AND RELIANT ON SPECULATION AND HEARSAY WHICH CANNOT SUPPORT A RESPONSE FED. R. CIV. P. 56(C) .

Defendant has failed to cite to the record or to any affidavit, which will support a
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genuine issue of material fact. Essentially, Defendant merely relies upon conclusionary
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statements of the attorney. Conclusionary assertions are not accepted as facts. Lombard's
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Inc. v. Prince Manufacturing, Inc., 753 F.2d 974, 975 (11th Cir. 1985), cert. denied, 474 U.S. 1082, 106 S. Ct. 851, 88 L. Ed. 2d 892 (1986); Forsberg v. Pacific Northwest Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 1988). Defendant has failed to dispute that Plaintiff has established a prima facie case. The 9th Circuit has held that when a plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate a legitimate reason for its employment decision. Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997). A party opposing the motion may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Defendant's attorney has merely supplied his own testimony, unsupported by foundational evidence and reliant on speculation and hearsay. Defendant cannot defeat summary judgment with "purely conclusory allegations, with no concrete, relevant particulars." Forsberg v. Pacific Northwest Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 1988). Where there is a complete failure of proof concerning an essential element of the nonmoving party's case, all other facts are rendered immaterial, and the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. F. ADDITIONAL RESPONSE. UNSUPPORTED ALLEGATION IN THE

Defendant alleges through the response that Liz has abandoned several EEO claims; failed to exhaust several administrative remedies; statute of limitations violations and that the courts lacks subject matter jurisdiction. In making these allegations Defendants fail to cite to the record or present affidavits supporting these allegations.

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Defendant can not legitimately make these allegations when they have destroyed the evidence and failed to follow their own regulation, RCS 10-1 05-24 EEO (Equal Employment Opportunity) Records Section a; Official Discrimination Complaint Case Files; Originating agency's file containing complaints with related correspondence reports, exhibits, withdrawal notices, copies of decisions, records of hearings and meetings, and other records as described in 29 CFR 1613.222. Instead Defendant destroyed all of the evidence. Where are the final agency decisions on these cases? Where are the registered letters to the plaintiff informing her of her right to sue and her appeal rights? Without this evidence Defendant does not have any factual evidence which will support there allegations. G. LIZ'S EVIDENCE IS ADMISSIBLE

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Plaintiff used Defendant Interrogatory answers, affidavits and depositions. In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence. Cambridge Elecs. Corp. v. MGA Elecs., Inc., 227 F.R.D. 313, 320 (D. Cal. 2004). The interrogatory answers and documents produced from the defendant are admissions. Admissions in the opposing party's pleadings (even if unverified) are admissible evidence under Fed. R. Evid. 801(d)(2) and therefore can serve as the basis for summary judgment. Xerox Corp. v.

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Precision Transp. Co., 2004 U.S. Dist. LEXIS 18046 (D. Cal. 2004) citing Lockwood v. Wolf Corp., 629 F.2d 603, 611 (9th Cir. 1980). Each interrogatory answer was verified by the Defendants attorney. Under Fed. R. Evid. 801(d)(2)(D), a statement is not hearsay if it is offered against a party and is a statement by the party's servant concerning matter within the scope of employment, made during existence of the relationship. Cox v. Amerigas Propane, Inc., 2005 U.S. Dist. LEXIS 26344 (D. Ariz. 2005). Additionally, Defendant in his Interrogatory answer denied the existence of any EEOC investigations and the existence of any Affirmative Action Plans. (See Interrogatory question 5 Attached Exhibit #4.) Therefore Liz can bring these documents under Federal Rule 801(d)(1)(A) as a prior inconsistent statement or under Federal Rule of Evidence 608 as impeachment. II. CONCLUSION The Court must enter judgment for Plaintiff because Defendants cannot present a legitimate non-discriminatory reason for their action. All facts supporting Plaintiff's summary judgment motion are undisputed. Liz respectfully requests that the court grant summary judgment for the Plaintiff. Dated this 18th day of August, 2006.

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s/Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Alex

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CERTIFICATE OF SERVICE I hereby certify that on the 18th of August, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems for filing and

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transmittal of a Notice of Electronic Filing for the following CM/ECF registrants:

[email protected] [email protected] A copy of this document was provided by mailing to: The Honorable Judge Roslyn Silver United States District Court 401 West Washington Courtroom 604 Phoenix, AZ 85003

s/Stephanie Coulter

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