Free Objection - 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. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV03-2300 PHX ROS

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.

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Plaintiff respond to Defendants objections to Plaintiff's Statement of Facts and exhibits filed in support of Motion for Summary Judgment and Motion to Strike. This motion is supported by the following Memorandum of Points and Authorities filed concurrently herewith. DATED this 31st day of July, 2006 Patterson & Associates, P.L.L.C. s/ Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES I. ARGUMENT.

A. DEFENDANT'S RESPONSE TO PLAINTIFF MOTION MUST BE STRICKEN BECAUSE IT IS IN VIOLATION OF LOCAL RULE 7.2(e). i. Defendant's Motion exceeds the seventeen (17) page limitation. Defendant's forty-nine (49) page motion clearly exceed the court order page limitation and must be stricken. Federal courts routinely warn litigants and attorneys not to evade page limits. United Automobile, Aerospace & Agricultural Implement Workers v. NLRB, 902 F.2d 40, 1990 WL 61309, at 4 (9th Cir. 1990) (imposing $500 sanctions for circumventing page limits by improper spacing); In re MacIntyre, 181 B.R. 420, 421-22 (9th Cir. BAP 1995), aff'd, 77 F.3d 489 (9th Cir. 1996) (sanctioning counsel $250 for using "minuscule" type and 26 footnotes in apparent attempt to circumvent page limit for

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briefing); Westinghouse Electric Corp. v. NLRB, 809 F.2d 419, 425 (7th Cir. 1987) (striking over length memorandum for failure to comply with page limitations, stating: "One has the sense that the lawyers wrote what they wanted and told the word processing department to jigger the formatting controls until the brief had been [properly] reduced."). Defendant's Motion falls clearly in line with the above stated cases as it exceeds the seventeen (17) page limitation set forth in LRCVP 7.2(e). Defendants have again for the fifth time violated this rule by submitting Defendant's objections to Plaintiff's Statement of Facts and exhibits filed in support of Motion for Summary Judgment and Motion to Strike. The aforemention motion, which is 49 pages long is

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nothing more than pure argument and is not admissible. Litigants who file briefs exceeding page limitations without seeking leave of court should beware. DeMarco v. Depotech Corp., 1999 U.S. Dist. LEXIS 15321, 4-5 (D. Cal. 1999). It is more difficult to obtain forgiveness than permission. DeMarco v. Depotech Corp., 1999 U.S. Dist. LEXIS 15321, 4-5 (D. Cal. 1999), citing Fleming v. County of Kane, 855 F.2d 496, 498 (7th Cir. 1988). Such activities are disrespectful to this court and to opposing counsel. They also disrespect the spirit of the page limitation and make it more difficult for this court to
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consider motions as carefully and efficiently as possible. Reyes v. City of Chicago, 1999 U.S. Dist. LEXIS 12255, No. 98- C-1136, 1999 WL 608768, at *2 n.1 (N.D. Ill. Aug. 06, 1999). According to LRCVP 7.2(e): Length of Motions and Memoranda. Unless otherwise permitted by the court, a motion including its supporting memorandum, and the response including its supporting memorandum, each shall not exceed seventeen (17) pages, exclusive of attachments and any required statement of facts. Unless otherwise permitted by the Court, a reply including its supporting memorandum shall not exceed eleven (11) pages, exclusive of attachments. In addition to Defendant's violation of LRCVP 7.2 (e), Defendant is in violation with LRCVP 7.2 (i) and the Rule 16 Scheduling Order, which state: All parties are specifically admonished that pursuant to local rule 1.10(i), "if a motion does not conform in all substantial respects with requirements of this rule or if the opposing party does not serve and file the required answering memorandum, or if counsel for any party fails to appear at the time and place for oral argument, such noncompliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily". (Emphasis added) Defendant's Motion must be stricken because it is merely an attempt to

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circumvent the page limitation as set forth in the Local Rules of Civil
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Procedure.

B. DEFENDANTS ARGUMENT IS MERELY ANOTHER SUMMARY JUDGMENT ARGUMENT CONTESTING THE COURT JURISDICTION WHICH VIOLATES THE COURTS RULE 16 ORDER. The court must strike Defendant's Motion for the reason that it is in violation of

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Court's Rule 16 Scheduling order, which orders that:
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... only one dispositive motion is allowed to be filed by each party. Defendants motion is based on the mistaken premise that Plaintiff failed to fulfill the administrative requirements of filing a law suit within the required 90 day period after an agency complaint is dismissed. And thus the court does not have jurisdiction and the evidence is not admissible. A determination of

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whether the Plaintiff fulfilled the administrative requirements can only be made by this court. The Defendants have not presented this question to the court until now. In doing so the Defendant relies on evidence that goes outside of the pleadings, thus this is a motion for summary judgment. The Defendants have already filed a summary judgment motion and neither the administrative issue nor the jurisdictional issues were briefed. Therefore, both of these issues brought forward now violate the Rule 16 Order and must be stricken.

C. DEFENDANTS MUST BE SANCTIONED.
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Additionally, the Court should sanction the Defendant for violating the local rules subject to limits upon the court's inherent power and statutory authority. See Miranda v. Southern Pac. Transp. Co., 710 F.2d 516, 520-21 (9th Cir. 1983). These limits require at a minimum that the sanctions order be supported with an explicit finding of an attorney's bad faith, and that the misconduct amount to more than a negligent transgression of local

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rules. See Zambrano v. City of Tustin, 885 F.2d 1473, 1478, 1480 (9th Cir. 1989). In this case, Defendant's actions are in bad faith. If Defendant required additional pages for its statement, it could have (1) requested a stipulation from Plaintiff for additional pages, (2) filed an ex-parte application showing good cause why it should be permitted to exceed the page limitation or (3) arranged a conference call with the Court to resolve the dispute. Defendant ignored all of these options. Instead, it violated the court's order by submitting a motion which consisted forty-nine (49) pages.
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D. THE COURT HAS SUBJECT MATTER JURISDICTION OVER PLAINTIFF'S CLAIMS. The court has subject matter jurisdiction, the Defendants has failed to recognize the continuing violations doctrine. The continuing violations doctrine extends the accrual of a claim when a continuing system of discrimination violates an individual's rights "up to a point in time that falls within the applicable limitations period." Williams v. OwensIllinois, Inc., 665 F.2d 918, 924 (9th Cir. 1982). The 9th Circuit has recognized two methods by which a Plaintiff may establish a continuing violation. Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir. 1997). First, the Plaintiff may show a serial violation by pointing to a series of related acts against one individual, of which at least one falls within the relevant period of limitations. Id.; Morgan v. Nat'l RR Passenger Corp., 232 F.3d 1008 (9th Cir. 2000). For example, in a case alleging discrimination on the basis of national origin, the court permitted the Plaintiff to introduce acts of discrimination by his employer that occurred outside of the statute of limitations period because they were sufficiently related to later, timely incidents of discrimination. Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th Cir. 1990). In other words, if both discrimination and injury are ongoing, the limitations clock does not begin to tick until the invidious conduct ends. Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 183 (1st Cir. 1989). Defendant denied Plaintiff twenty two times for promotions in the computer specialist position almost monthly before she filed her first complaint. Since that time Defendant has been denied several more times for the Computer Specialist and has filed four additional EEO Complaints. Each of these related acts against the Plaintiff are a continuing violation of which at least one falls within the relevant period of limitations. The continuing violation theory recognizes the principle that a Plaintiff may be able to recover under Title VII if he or she can demonstrate a pattern or practice of discrimination that has continued into the present, notwithstanding his or her ability to
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prove specific instances of discrimination personally suffered at the hands of the Defendant within the limitation period of Title VII. See O'Brien v. Sky Chefs, Inc., 670 F.2d 864, 868 (9th Cir.1980); Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 761-62 (9th Cir. 1980). Defendants continue a pattern and practice of discrimination that Plaintiff personally suffers from. Therefore, the statute of limitations has not run and the court has subject matter jurisdiction. Second, a Plaintiff may show a systematic policy or practice of discrimination that operated, in part, within the limitations period as a systemic violation. Morgan, 232 F.3d at 1015-16. A systemic violation claim requires no identifiable act of discrimination in the limitations period, and refers to general practices or policies, such as hiring, promotion, training and compensation. Provencher v. CVS Pharmacy, Div. Of Melville Corp., 145 F.3d 5, 14 (1st Cir. 1998). In Gutowsky, for example, the court concluded that the Plaintiff's case was timely because she alleged the existence of "widespread policy and practices of discrimination of which she complains continued every day of her employment, including days that fall within the limitations period." Id. 108 F.3d at 260. Here, Plaintiff has attacked Defendant's promotion systems and policies. In order for a violation to be continuing, it must involve a practice, continued over a period of time, which operates to injure the Plaintiff either individually or as a member of a class to which the Plaintiff belongs. See Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924-25 & n. 3 (9th Cir.), cert. denied, 459 U.S. 971, 103 S. Ct. 302, 74 L. Ed. 2d 283 (1982); Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 760 (9th Cir.1980); Elliott v. Sperry Rand Corp., 79 F.R.D. 580, 585-86 (D.Minn.1978). There is no question that Defendant's policies remained intact from season to season. Moreover, the practices are confined in application and operated against the Plaintiff. Another example of the application of the continuing violation theory is in Reed v.
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Lockheed Aircraft Corp., 613 F.2d 757 (9th Cir.1980). In Reed, the Plaintiff launched a sweeping attack on Lockheed's systems of promotion, compensation, and training. She alleged three specific instances of discrimination, in 1963, 1969, and 1972, but filed her charge in 1976. The district court held her claim time-barred and we reversed, saying that the specific events of which Plaintiff complained are but evidence that a policy of discrimination pervaded Lockheed's personnel decisions. "The violations of which she complains occurred each day of her employment, including the days within the appropriate limitations period." Id. at 760 (latter emphasis added); accord Scott v. Pacific Maritime Association, 695 F.2d 1199, 1206 (9th Cir.1983). Plaintiff's twenty two attempts demonstrate, by fact of her denials that she has been discriminated against during the limitation period. E. THE STATUTE OF LIMITATIONS DOES NOT RUN UNTIL THE PLAINTIFF KNEW OR SHOULD HAVE KNOW OF THE DISCRIMINATROY EVENTS. Plaintiff could not have known that she was being discriminated against until after

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she received her Microsoft Certification on July 7, 1998 or received a notice of selection.
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The general rule applicable to federal statutes of limitations is that the limitation period
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begins to run when the claimant discovers or in the exercise of reasonable diligence
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should have discovered the acts constituting the alleged violation." 54 C.J.S. Limitations
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of Actions § 87 (1987). In this case the Plaintiff would not know that she was
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discriminated against until the selection is made. For example a position can be
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announced several times before a selection is made, Computer Specialist PVA#9722

139B1, PVA#97-083B1 and PVA#98-02B1 are all the same position. Although the
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position initially closed in November 1997, Plaintiff was not aware that a selection had
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been made until March 25, 1998. Computer Specialist PVA#98A-027B1 closed April 8,
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1998 however the individuals who applied for the position were not notified regarding
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the selection until June 12, 1998. Computer Specialist PVA#98A-027B1 closed April 8, 1998, however the individual selected for the position was not selected until August 2, 1998. Plaintiff did not know who was selected until the individual started working in the position on August 2, 1998. Computer Specialist PVA#98-114B1 closed April 10, 1998 however, the individuals who applied were never notified. Computer Specialist PVA#99-023B1 closed February 5, 1999 however the individuals who applied and not selected weren't notified until August 25, 1999. Plaintiff would have been able to track every position she applied had the Defendants not destroyed the evidence. It is clear that Plaintiff would not have known until enough selections were made where she could see a pattern of discrimination.

F. 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).

G. ALL OF THE EVIDENCE USED IN PLAINTIFF'S SUMMARY JUDGMENT MOTION IS ADMISSABLE. 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
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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. 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 produce 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. 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).

H. THE EVIDENCE THAT DEFENDANTS ALLEGE WAS NOT PRODUCED COMES FROM THE EEO FILES WHICH ARE IN DEFENDANTS POSSESSION. The parties agreed at the beginning of the litigation that they would not produce

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the EEO files; however, they would disclose them so they could be used at trial. Plaintiff disclosed each EEO and Affidavit they would use at trial.

I. EEO DETERMINATION FINDINGS ARE ADMISSABLE. The Ninth Circuit has held that EEOC findings are admissible. Bradshaw v. Zoological Soc. of San Diego, 569 F.2d 1066, 16 FEP Cases 828 (9th Cir., Feb. 3, 1978).

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Additionally, the EEO and EEOC reports are admissible as impeachment because the Defendants have denied that the documents exist. II. CONCLUSION. For the reasons adduced and outlined above this Court should deny Defendants objections to Plaintiff's Statement of Facts and exhibits filed in support of Motion for Summary Judgment and Motion to Strike.

Respectfully submitted this 31st day of July, 2006

s/Rosval A. Patterson Rosval A. Patterson Patterson & Associates P.L.L.C. 777 E. Thomas Rd. #210 Phoenix, AZ 85014

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CERTIFICATE OF SERVICE I hereby certify that on the 31st day of July, 2006, I electronically transmitted that attached document to the Clerk's Office using the CM/ECF System for filing and 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 U.S. Mail to: The Honorable Judge Roslyn Silver United States District Court 401 West Washington Courtroom 604 Phoenix, AZ 85003

By

s/Stephanie Coulter

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