Free Reply - 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 [email protected]

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
REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S OBJECTIONS TO PLAINTIFF'S STATEMENT OF FACTS and EXHIBITS FILED IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT and MOTION TO STRIKE

Defendant, R. James Nicholson, Secretary Department of Veteran's Affairs, by and through undersigned counsel, respectfully submits his Reply to plaintiff's response to defendant's Objections to the Statement of Facts (PSOF) and exhibits filed by the plaintiff in support of her Motion for Summary Judgment dated May 30, 2006. Further, the defendant respectfully request the Court to sustain the objections and grant the defendant's Motion to Strike. This Reply is supported by the attached Memorandum of Points and Authorities and other matters of record.

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Respectfully submitted this 10th day of August 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney MEMORANDUM OF POINTS AND AUTHORITIES I. The defendant's Objections and Motion to Strike based on those Objections do not violate Local Rule 7.2 (e). In her Response, Payne does not address the defendant's objections to the admissibility of plaintiff's Statement of Facts and exhibits. Instead, Payne once again claims that the defendant has violated a local rule and must be sanctioned. However, Payne's contentions lack merit. Neither the Scheduling Order1 or Local Rule 7.2(e) address the length of evidentiary objections to an opposing party's statement of facts and/or exhibits filed in support of a Motion for Summary Judgment. The number of objections and length of the objections in this case were dictated by the numerous objectionable matters set forth in Plaintiff's Statement of Facts (PSOF) and the requirement that evidentiary objections be specific. United States v. Chang, 207 F.3d 1169, 1176 (9th Cir.2000) (If a party fails to state the specific grounds upon which evidence is inadmissible, the issue is not preserved for review.); U.S. v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir.1990) (Specific objection required). In accordance with Ninth Circuit case law, the defendant moved to strike, based upon his objections, plaintiff's inadmissible statements of facts and exhibits.

The defendant is not precluded by the Scheduling Order from filing objections in response to Payne's PSOF.
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FDIC v New Hampshire Ins. Co., 953 F.2d 478, 484 (9th Cir. 1991); Scharf v. United States Attorney General, 597 F.2d 1240, 1243 (9th Cir.1979) (Motion to strike should be filed to address formal defects in documentation submitted in connection with a motion for summary judgment); Moore v. Argenbright Sec., 2001 WL 687484 * 3-4 (D.Ariz. , 2001). The defendant has an absolute right to object to the admissibility of plaintiff's statement of facts and exhibits. "It is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment." Beyene v. Coleman Sec. Servs., 854 F.2d 1179, 1181 (9th Cir.1988). The defendant's objections are legally and factually proper. This is especially true with respect to documents, transcripts

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and other matters which were not disclosed in response to defense discovery requests. Therefore, the objections must be sustained and plaintiff's requests to strike and for sanctions must be denied. II. The plaintiff's arguments in Section B beginning on page 3 of the Response lack merit. Payne asserts that defendant's objections and motion to strike constituted a Motion for Summary Judgment in violation of this Court's Rule 16 Order. That is simply not the case. The defendant has a right to object to the numerous inadmissible statements of fact and exhibits submitted by Payne. Payne's Statement of Facts relies heavily on matters pertaining to her January 2,

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2002 union grievance to support her claims of unlawful discrimination. See, Docket Entry # 103 Objections, Attachment B. As set forth in the defendant's Objections, Payne's union grievance mirrors the allegations in "The Transfer Case." See, Docket Entry # 103,

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at pp. 31-36. Further, defendant's objections noted that, prior to the close of discovery, Payne failed to produce or disclose all of these transcripts. PSOF, EXHIBITS 15, 27, 38, 40, 43, 44, 45.2 Additionally, Payne's Response to defendant's objections does not even attempt to properly authenticate these apparent transcripts. See, Orr v. Bank of America, NT & SA, 285 F.3d 764, 774 (9th Cir., 2002). Payne's improper reliance on the union grievance transcripts to support her Motion for Summary Judgment, is the basis for the defendant's objections set forth on pages 3136 of the Objections. If sustained, these objections preclude this Court from granting relief based on Payne's "Transfer Case."3 Vinieratos v. Air Force, 939 F.2d 762, 768 (9th Cir.1991); Macy v. Dalton, 853 F. Supp. 350, 358 (E.D. Cal., 1994); Edwards v. North American Rockwell Corp., 291 F. Supp. 199, 208-09 (C.D. Cal., 1968). Payne does not deny the fact that she filed "The Transfer Case" as an EEO matter, then filed the same charges of retaliation as a union grievance. She pursued her union grievance through hearings on the merits and a final decision. Payne also requested a hearing in the EEO case. See, Docket Entry # 103, Attachment C. When she lost the grievance, she did not appeal. Rather she abandoned the grievance and abandoned her pending EEO "Transfer Case" and filed this lawsuit on November 21, 2003. As a result, Further, these transcripts are otherwise inadmissible for the reasons set forth in defendant's objections. It is presumed that a federal district court lacks jurisdiction to grant relief and "the burden of establishing the contrary rests upon the party asserting jurisdiction." Vacek v. U.S. Postal Service, 447 F.3d 1248, 1250 (9th Cir. 2006). In determining whether a plaintiff has met this burden, the court is not limited to the pleadings and may weigh the evidence before it. Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005). Matters regarding subject matter jurisdiction, failure to exhaust administrative remedies and election of remedies can be raised at any time. Kontrick v. Ryan, 540 U.S. 443, 455 (2004).
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the defendant properly raised his objections based upon issues of subject matter jurisdiction, failure to exhaust and election of remedies.4 Therefore, the defendant's objections and arguments were proper and must be sustained. III The Objections to Payne's Statement of Facts and Exhibits are meritorious. Payne's Response in paragraph D, beginning on page 5, assert that she is entitled to request relief regarding matters far outside the narrow scope of this Court's subject matter jurisdiction or which are otherwise precluded. This Court's jurisdiction is limited to the retaliation claims filed by Payne: (1) Agency Case No. 200P-2674 ("The NonSelection Case" ) and (2) Agency Case No. 200P-0644-2002100409 ("The Transfer Case). Contrary to Payne's Response, the defendant's Objections and Motion to Strike were based upon this Court lack of subject matter jurisdiction to consider or grant relief based upon: (1) Payne's prior EEO complaints, (2) prior or present claims of disparate treatment, disparate impact or "pattern and practice" discrimination,5 (3) factual assertions and exhibits having no bearing on the issues before this Court and (4) issues barred by her election of remedies. By law she could either pursue her EEO "Transfer Case" or her union grievance, but not both. Stoll v. Department of Veterans Affairs, 449 F.3d 263, 265-67 (1st Cir., 2006). Matters regarding subject matter jurisdiction, failure to exhaust administrative remedies and election of remedies can be raised at any time. Kontrick v. Ryan, 540 U.S. 443, 455 (2004). Payne has not exhausted her administrative remedies to permit her to allege a "pattern and practice," disparate treatment and/or disparate impact discrimination cases to this Court. Further, "pattern or practice" allegations are legally irrelevant in this retaliation based lawsuit.
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Payne's Response, once again, relies on the "continuing violations theory" which was abolished in 2002, with one exception not relevant to these proceedings. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Her entire line of argument on pages 5-7 is based upon expressly or implicitly overruled cases, including Morgan v. Nat'l RR Passenger Corp., 232 F.3d 1008 (9th Cir., 2000). Finally, Payne has not demonstrated how any of the objectionable paragraphs or exhibits have any probative value with respect to a "pattern or practice" case, even if one was properly pending before this Court. Morgan, 122 S.Ct. at 2071-72. Finally, Payne abandoned all of her prior EEO claims regarding her alleged 22 non-selections for a computer specialist position. She neither filed administrative appeals

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nor a timely lawsuit after her EEO cases and union grievances were dismissed. III The Objections to Payne's Statement of Facts and Exhibit also raise inadmissibility of claims barred by the Statute of Limitations. Payne's Statute of Limitations arguments in paragraphs D and E, on pages 5-8 of the Response, lack merit as she fails to establish her entitlement to either equitable tolling or equitable estoppel. Boyd v. U.S. Postal Service, 752 F2d 410, 414 (9th Cir., 1985); Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir.1996) (the doctrine of equitable tolling requires that "extraordinary circumstances."); Dilettoso v. Potter, 2006 WL 197146, *8-9 (D. Ariz., 2006); Doan v. NSK Corp., 266 F. Supp. 2d 629, 636-38 (E.D. Mich., 2003). Payne abandoned her EEO complaints regarding the very matters raised on pages 7 and 8 of her Response. See, Docket Entry # 73 at pp. 3-9. The defendant did not commit spoliation when the documents regarding the various computer specialist positions were

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destroyed in accordance with VA records retention policies. See, Docket Entry # 73 at pp. 3-9, 9-13. Payne has specifically alleged that she was as an effective advocate for other disgruntled VA employees and that she was retaliated against because of this protected activity. e.g., See, Docket Entry # 94 at pp. 12, L. 14-19; PSOF ¶'s 70, 71, 113. Therefore, she was well aware of the procedural requirements and deadlines. Finally, Payne fails to address, on the merits, the defendant's arguments as to why all of these prior EEO cases are not admissible as "background evidence." Therefore, the defendant's objections must be sustained. IV. The VA affirmative Action Plans are not admissible. The defense motion to strike PSOF ¶'s 32-35, 51, 57, 91-92, 96-98 and EXHIBITS 19 and 37 must be sustained. They are irrelevant and inadmissible in this retaliation lawsuit. While Payne seeks to improperly raise "pattern or practice," disparate treatment and/or disparate impact claims in this lawsuit, she failed to exhaust her administrative remedies regarding any such claims in the "Non-Selection Case" or "The Transfer Case." The two cases cited by Payne are distinguishable. In Gonzales v. Police Department, 901 F2d 758, 769( 9thCir., 1990), the Affirmative Action Plan (AAP) was adopted as part of a judicially approved consent decree. The VA Plans attached as PSOF EXHIBITS 19 and 37, were not court ordered or approved. Therefore, Gonzales is not relevant. Odima v. Westin Tucson Hotel Co., 991 F2d 595, 601 ((th Cir., 1993); Ayon v. Sampson, 547 F2d 446, 451 (9th Cir., 1976). In Yatvin v. Madison Metropolitan School, 840 F.2d 412, 415 (9th Cir., 1988), the
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affirmative action plan permitted selection of an individual in a favored group only if there was a tie between candidates who were equally qualified. The VA Affirmative Action Plans PSOF EXHIBITS 19 and 37, do not contain such a provision. Furthermore, the VA has established that there was no tie between Payne and Pyle for the computer position and that Pyle was more qualified. See, Docket Entry # 92 at pp. 4-8. Furthermore, Yatvin claimed a due process violation based on the AAP at issue, a claim not present in this matter. Finally, neither of these cases involved the issues of failure to exhaust or inadmissibility of an AAP which the defendant has raised in this lawsuit. V. Plaintiff's argument that "all of her evidence is admissible" lacks merit. Payne merely renders a conclusory opinion that all of her evidence is admissible. Roundtree v Fairfax County Sch. Bd., 933 F2d 219 (4th Cir., 1991). Further, she fails to address the merits of the defense objections. The defendant did not move to strike his interrogatory answers, therefore the arguments on pages 8-9 are irrelevant. Payne's novel argument that merely because a document was produced in accordance with Rule 34, F.R.Civ.P. ipso facto renders the contents of a document admissible into evidence as an admission or otherwise is specious. Dodi v. The Putnam Companies, 1996 WL 489998 *3 (1st. Cir., 1996). Therefore, defendant's objections must be sustained. VI. Documents not timely produced by Payne must be stricken. On page 9 of the Response, Payne claims that certain documents should not be stricken because "the evidence that defendant's allege was not produced come from the EEO files which are in defendant's possession." Such an assertion is contrary to federal
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law. The mere fact that the defendant may or may not have does not excuse Payne's failure to fail to produce and/or disclose documents that she intends to rely upon, until after the close of discovery. Cornell Research Foundation, Inc. v. Hewlett Packard Co., 223 F.R.D. 55, 68 (N.D. N.Y., 2003). A district court has clear authority to exclude exhibits as a sanction for flagrant and unexcused violations of Scheduling Orders and disclosure violations. Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980); Exxon Corp. v. Halcon Shipping Co., Ltd., 156 F.R.D. 589, 591-92 (D.N.J. 1994); Habecker v. Clark Equipment Co., 36 F.3d 278, 289 (3rd Cir. 1994). Likewise, Payne falsely asserts on page 9 that "the parties agreed at the beginning of the litigation that they would not produce the EEO files; however, they would disclose

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them so they could be used at trial. Plaintiff disclosed each EEO and Affidavit they would use at trial." The defendant never agreed to such a proposal. To do so would require Court approval as this would be contrary to the Court's Scheduling Order and the initial disclosure requirements of Rule 26, F.R.Civ.P. In any event, even if the parties had entered into such an agreement, the parties would have put it in writing so that it would be enforceable. Local Rule 83.7; Rule 29 F.R.Civ.P. There never was any agreement regarding the admissibility of prior EEO and/or union grievance case administrative records or determinations. Further, Payne has never produced the documents that form the basis for the defendant's objections. Payne has not demonstrated when and where these alleged "disclosures" were made. Furthermore, Payne has forgotten that she has repeated charged the defendant with unauthorized destruction of these very same EEO files and sought sanctions against the defendant. Payne argues that all of her prior EEO determinations (which were

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adverse to her) can now be used for impeachment because the "Defendants have denied the documents exist." There are no "Defendants" and it is highly unlikely that R. James Nicholson, the sole defendant in this lawsuit, will be testifying at the time of trial. In any event, the defendant never said that it had destroyed EEO files, rather he made them available for inspection in California at the location where they are in storage. CONCLUSION The defendant raised valid objections to Payne's Statement of Facts and Exhibits. Her response does not address the merits of the objections. Therefore, the objections must be sustained and Payne's request for sanctions denied. Respectfully submitted this 10th 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 10, 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

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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

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