Free Objection - 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. Anthony Principi, Secretary Department of Veteran's Affairs,

CIV-03-2300 PHX ROS DEFENDANT'S OBJECTIONS TO PLAINTIFF'S STATEMENT OF FACTS and EXHIBITS FILED IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT and MOTION TO STRIKE

Defendant.

Defendant, R. James Nicholson,1 Secretary Department of Veteran's Affairs, by and through undersigned counsel, respectfully submits his objections to the Statement of

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Facts (PSOF) and exhibits filed by the plaintiff in support of her Motion for Summary Judgment dated May 30, 2006. Further, the defendant respectfully moves pursuant to Rule 12(f), F.R.Civ.P., for an Order striking specific paragraphs and exhibits within the PSOF.2
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On January 1, 2005 R. James Nicholson replaced Anthony Principi as the Secretary of the Department of Veterans Affairs. See, Rule 25(d)(1), F.R.Civ.P. The failure to object or failure to move to strike permits the trial court to consider such matters and precludes review of such matters on appeal. Federal Deposit Ins. Corp. v. New Hampshire Ins. Co., 953 F.2d 478, 484-85 (9th Cir., 1991); Scharf v. United States Attorney General, 597 F.2d 1240, 1243 (9th Cir.1979). To avoid summary judgment, the nonmoving party need not produce evidence in a form that would be
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These motions are supported by the attached Memorandum of Points and Authorities and other matter of record. Respectfully submitted this 14th day of July, 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 DEFENDANT'S OBJECTIONS AND MOTION TO STRIKE INTRODUCTION The plaintiff's so-called "undisputed" Statement of Facts (PSOF) have not been stipulated to by the defendant. PSOF seeks to raise matters far outside the narrow scope of this Court's subject matter jurisdiction. This Court's jurisdiction is limited to the retaliation claims filed by Payne: (1) non-selection for the position of Computer Specialist, GS-344-5/7/9, Agency Case No. 200P-2674 ("The Non-Selection Case" )3 and (2) Agency Case No. 200P-0644-2002100409 ("The Transfer Case).4 admissible at trial in order to avoid summary judgment. However, the nonmoving party is required to go beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
Informal EEO Complaint filed December 1, 2000. Formal EEO Complaint filed December 28, 2000. In sum, Payne alleged that the defendant did not select her form a computer specialist position on the basis of retaliation. Informal EEO Complaint filed October 31, 2001. Formal EEO Complaint filed December 3, 2001 and amended on March 4, 2002. In sum, Payne alleged that the defendant transferred her from the Mental Health & Behavioral Sciences Service Line to the Human Resources Management Service as retaliation. She later alleged further retaliation and non2
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Contrary to Payne's PSOF and Motion for Summary Judgment, this Court lacks subject matter jurisdiction to consider or grant relief based on: (1) Payne's prior EEO complaints, (2) prior or present claims of disparate treatment and/or disparate impact, and (3) factual assertions and exhibits having no bearing on the issues before this Court. Rather than focusing on the two retaliation based EEO cases before this Court, Payne has taken a scatter-shot approach with the apparent hope that somewhere in her blizzard of allegations she will be deemed to have raised a genuine issue of material fact. Payne is not permitted to re-litigate prior abandoned EEO claims or rely upon such claims as evidence in this lawsuit. While she has filed numerous EEO complaints, she has received adverse rulings in each and never filed a timely lawsuit on any of these prior

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EEO cases. Therefore, any facts, allegations, testimony or exhibits related to these prior EEO cases must be excluded from these proceedings. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) ; Brown v. General Servs. Admin., 425 U.S. 820, 832-33 (1976). Morgan specifically limited "background" evidence to matters that had not been the subject of a timely EEO complaint. Morgan, 536 U.S. at 113. The Morgan decision does not support Payne's improper efforts to re-litigate, rely upon or seek to admit evidence from stale and abandoned prior EEO cases. Therefore, the vast majority of PSOF and Exhibits must be stricken. Further, Payne's PSOF, exhibits and allegations based on the disparate treatment and disparate impact counts in ¶ 47-53 and 59-60 of the Amended Complaint, dated

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December 1, 2003, must be stricken. 5 When an employee seeks judicial relief for incidents not listed in the original EEO charge, a federal court may assume jurisdiction over the new claims only if they are "like or reasonable related to" the allegations of the EEO charge before the court. Oubichon v. Northen American Rockwell, Corp., 482 F.2d 569, 571 (9th Cir., 1973). Payne failed to raise claims of disparate treatment or disparate impact in the"Non-Selection Case" or the "Transfer Case." Retaliation claims, governed by 42 U.S.C.§ 2000e-3(a), are not reasonably related to disparate treatment or disparate impact claims.6 Pacheco v. Mineta, 2006 WL 1195989 (5th Cir., 2006); Williams v. Little Rock Municipal Water Works, 21 F.3d 218, 222 (8th Cir.,1994); Blum v. County of Alameda, 2003 WL 21518112 (N.D. Cal., 1994).

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notably, Payne's proposed Second Amended Complaint does not contain claims for disparate treatment or disparate impact. Docket Entry # 68 dated December 6, 2005. Motion to Amend, under advisement.
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Therefore, Payne has failed to exhaust her mandatory administrative remedies on her claims of disparate treatment and/or disparate impact raised set forth in her Amended Complaint, PSOF and exhibits. Brown v. Puget Sound Electrical Apprenticeship & Training Trust, 732 F.2d 726, 730 (9th Cir., 1984).7 The fact that Payne may have raised disparate treatment and/or disparate impact

The federal government and its agencies are liable for retaliation, even though the statutory language extending Title VII coverage to federal employees, accord 42 U.S.C. § 2000e-16, does not specifically create a cause of action for retaliation. Avon v. Sampson, 547 F.2d 446, 449-50 (9th Cir.1976); Afanador v. U.S. Postal Service , 787 F.Supp. 261, 267 (D.P.R., 1991); Hale v. Marsh, 808 F.2d 616 (7th Cir.1986). On June 22, 2006, in the case of Woodford v. Ngo, -- U.S.--; 2006 WL 1698937, a case involving the provisions of The Prison Litigation Reform Act of 1995, the Court re-emphasized the requirement for exhaustion of administrative remedies.
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claims in her prior EEO complaints is not a safe harbor, she did not file suit within the ninety-day (90) statute of limitations governing a federal court's limited jurisdiction. Nor has she provided any proof that she filed a lawsuit. Therefore, this Court lacks jurisdiction on these stale and abandoned claims. 42 U.S.C.§ 2000e-16(c); Dierson v. Walker, 117 Fed. Appx. 463, 465-66 (7th Cir., 2004). Furthermore, Payne's PSOF has set forth factual allegations and exhibits that: (1) lack authentication, (2) lack foundation, (3) lack any permissible use in this litigation, and (4) were not disclosed in response to the Defendant's discovery requests. Evidence a party relies upon with respect to a summary judgment motion must have an appropriate foundation and must be supported or opposed by admissible

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evidence. Fed. R. Civ. P. 56(e); Hal Roach Studios, Inc. v. Feiner & Co., 896 F.2d 1542, 1555 (9th Cir.1990). Inadmissible evidence is subject to a timely objection and must be stricken from the record. FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 484-85 (9th Cir.1991). At the summary judgment stage, the court focuses on the admissibility of the evidence's contents, not the admissibility of its form. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir.2003). ARGUMENT A. The defendant objects to and moves to strike ¶ 5-14 of PSOF and Exhibits 4, 7 and portions of Exhibit 8. These ten paragraphs and associated exhibits are all related to plaintiff's EXHIBIT 4, an email dated October 24, 1996. These paragraphs and exhibits must be stricken for one or more of the following reasons: 1. Payne's conclusory and hearsay opinion that EXHIBIT 4 is "derogatory" is

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inadmissible and insufficient to raise a genuine issue of material fact. There are limits to the admissibility of evidence offered to support a motion for summary judgment. Conclusory, speculative testimony is insufficient to raise genuine issues of fact and, thereby, warrant summary judgment. Thornhill Publishing Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979); Falls Riverway Realty, Inc. v. Niagra Falls 754 F.2d 49 (2nd Cir.1985) (conclusory testimony insufficient support for summary judgment); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989) (party cannot defeat summary judgment "with an affidavit ... based on rumor or conjecture."). 2. The contents of the email lacks specificity. This so-called "derogatory" email

contains no abusive or racial slurs. It does not mention Payne or any of her protected
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activity. Further, it predates any justiciable claim in this case by over four years. It's contents are simply too general in nature and could easily be interpreted as referring to another group of employees. Moreover, the " 'mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee' is not, by itself, actionable under Title VII." Ellison v. Brady, 924 F.2d 872, 876 (9th Cir.1991). 3. Payne statement in paragraph 5 that this "derogatory" email was left on her chair at

work by Richard Moore, Stanley Skorniak and/or James Owens, is conclusory and hearsay. Thornhill Publishing Co., 594 F.2d at 738. 4. The events surrounding EXHIBIT 4 in October, 1996 and February, 1997 are

simply too remote to establish the causational link for her actionable retaliation claims. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir., 2002).(18-month lapse between protected activity and an adverse employment action is simply too long to give rise to an inference of causation.)

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5.

Payne specifically relied upon EXHIBIT 4 in her November 13, 1998 EEO

Complaint Case No. 98-3542 . PSOF EXHIBIT 25 at pages 3, 4, 6, 11, 12. She lost that case, the subsequent administrative appeal (May 31, 2000)(2000 WL 757995) and did not file a timely suit in Federal District Court.8 Therefore, as a matter of law, she cannot seek re-litigate any claims based on EXHIBIT 4 or introduce it into evidence in this case. Morgan, 536 U.S. at 113;Brown , 425 U.S. at 832-33. 6. Exhibit 7, is a February 8, 1997 Arizona Republic newspaper article about the

October, 1996 email ( Exhibit 4). This exhibit lacks foundation, is hearsay and double hearsay must be stricken now and at the time of trial. Green v. Maricopa County Community College School District, 265 F.Supp. 2d 1110, 1134 (D. Ariz., 2003)(The newspaper article lacks foundation and is inadmissible hearsay.); Villodas v. Healthsouth Corp., 338 F. Supp.2d 1096,1104 (D. Ariz., 2001). 7. There are references to EXHIBIT 4 ( "electronic mail" ), on page 6 of Exhibit 8.

Therefore, the reference to this email lacks foundation, is hearsay and too remote in time and attenuated must be stricken from EXHIBIT 8. Green, 265 F. Supp.2d at 1134; Villiarimo, 281 F.3d at 1065.

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Even assuming, solely for purposes of this Motion, this Court would consider

these remote events (October, 1996 and February, 1997) for some purpose, Exhibits 4, 7 and page 6 of Exhibit 8 fail to state a prima facie case of unlawful retaliation. In reviewing even more graphic written documents or events, the Federal Circuits have dismissed claims of unlawful conduct, for: (1) failure to state a claim or (2) because of

Nor has she provided any proof that she filed a lawsuit.
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timely remedial action by the employer. Li Li Manatt v. Bank of America, 339 F.3d 792, 798-800 (9th Cir., 2003). 9. Payne has admitted, Rule 801 (d) (2), F.R.Evid., (admission against interest), that

the defendant took action after the email came to his attention. In PSOF ¶ 9, 13, 14 and EXHIBIT 9 Payne admits that the defendant took action: "the authors were [not] compelled to write an apology letter", "the authors were not disciplined harshly enough" and " the VAMC had refused to apologize ." The defendant did take remedial action. Federal law requires an employer to take timely remedial action to address alleged discriminatory statements made in the workplace. Yamaguchi v. United States Dep't of the Air Force, 109 F.3d 1475, 1482 (9th Cir.1997); Fuller v. City of Oakland, 47 F.3d 1522,

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1528 (9th Cir.1995). It does not require an employer to satisfy the whims and/or agendas of the complaining employee(s) as to the form or extent of "punishment." Star v. West, 237 F.3d 1036, 1039 (9th Cir., 2001). 10. Payne has failed to demonstrate any legitimate basis for injecting this nearly 10

year old email into this litigation. No federal court has ever permitted such a remote event to be admitted into evidence to support retaliation claims. Villiarimo, 281 F.3d at1065 (18-month lapse between protected activity and an adverse employment action is simply too long to give rise to an inference of causation.) Therefore, for all the foregoing reasons, the defendant moves to strike PSOF ¶ 514 and Exhibits 4, 7 and the email references page 6 of Exhibit 8.

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Defendant objects to and moves to strike paragraph 15 PSOF and Exhibit 10 (dated February 18, 1997).

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EXHIBIT 10 lacks authentication, foundation and is hearsay. Payne has failed to

establish that it falls within an exception to the hearsay rule. In fact, when asked directly Payne said "Plaintiff was unaware of the document until it was received from Defendant as an answer to her Interrogatory. On or about November 9, 2005, Plaintiff's counsel was given a clear copy of the letter by a prospective witness." Response to Defense Interrogatory # 17, dated October 31, 2005.9 2. In his deposition of September 16, 2005, John R. Fears, Director, CTHVAMC

(now retired) stated that this is not an official business record of the CTHVAMC. Rather it is an anonymous letter. PSOF, Exhibit 6, pp. 127, line 19-25; 128, lines 1-18. As such, EXHIBIT 10 is hearsay and it along with paragraph 15 must be stricken. 3. Payne's arguments in paragraph 15 and the contents of Exhibit 10 are

inflammatory, highly prejudicial, confuse the issues and would be misleading to a jury. Rule 403, F.R.Evid. 4. The mere fact that the defendant produced this document in response to plaintiff's

discovery requests (1st Set-Interrogatories #015-000046), does not establish proper foundation or authentication. Dodi v. The Putnam Companies, 1996 WL 489998 *3 (1st Cir., 1996)( "We fail to see how the fact that a document was presented in discovery suffices to authenticate the document or lay the foundational requirements of Rule 803(6) or Rule 801(d)(2)(D).") 5. Paragraph 15 PSOF and Exhibit 10 lack a causational nexus to Payne's retaliation

claims. This document is dated February 17, 1997. Payne filed her informal complaint in

This "prospective witness" has not been identified despite defense discovery requests.
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Case No. 200P-2674 on December 1, 2000 and on October 31, 2001 in Case No. 200P0644-2002100409. A gap of over three years to four years is simply too attenuated to establish the required causational nexus to Payne's justiciable retaliation claims. Villiarimo, 281 F.3d at 1065. The contents in this document are very general in nature, do not refer to Payne or any of her protected activities. For all the foregoing reasons the defendant moves to strike paragraph 15 and Exhibit 10. C. Defendant objects to and moves to strike ¶ 16-24, and Exhibits 8 and 11, PSOF. On or about April 4,1996, John R. Fears appointed Payne as the Black Employee

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Program Manager. This is a voluntary collateral duty position outside Payne's regular duties as a VA employee. On or about July 8, 1997, Fears removed Payne because of a union unfair labor practice complaint filed against Payne. On October 8, 1998, Payne filed her informal EEO complaint in Agency Case No. 98-3542 regarding her nonselection for a Computer Specialist position. She based her complaint on race, gender and retaliation. Payne supported her non-selection and retaliation claims with specific reference to her activity as the Black Employee Program Manager. PSOF EXHIBIT 25 at pages 3, 5, 10, 11, 12. On or about October 26, 1999, the defendant issued its Final Agency Decision (FAD) denying her claim. 10 Payne filed an administrative appeal which was dismissed on May 31, 2000. She did not file suit within 90 days. Therefore, as

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"Complainant stated that she was removed from her position as the Black

Employment Program Manager because she was named in a local daily newspaper concerning a computer email message incident involving RMO RM and management personnel." Docket Entry # 73, Exhibit D, at page 2.
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a matter of law the arguments in ¶ 16-24 and EXHIBITS 8 and 11 are barred as a matter of law and must be stricken. Morgan, 536 U.S. at 113; Brown , 425 U.S. at 832-33. 2. These events set forth in EXHIBITS 8 and 11 are simply too remote in time and

attenuated to establish the required causational nexus with Payne's claims of retaliation filed on December 1, 2000 and October 31, 2001. Villiarimo, 281 F.3d at 1065. Furthermore, they have absolutely no probative value in support of Payne's retaliation claims. There are irrelevant, immaterial and inadmissible. Therefore, they must be stricken. 3. In PSOF paragraph 23 and page 6 "Conclusions" EXHIBIT 8, Payne expressly

relies on the statement: "The representation of African Americans in pay grades GS-9 and above is less than their representation in the medical center's workforce."[Emphasis added]. Such allegations are well outside the scope of Payne's justiciable retaliation claims. Such allegations relate to either a claim for disparate treatment and/ or disparate impact. Statistical data is only relevant in disparate treatment and disparate impact cases. Such comparisons are irrelevant in retaliation cases. Disparate treatment and/or disparate impact cases are not sufficiently related to retaliation cases to permit this Court to consider Payne's factual allegations and exhibits and they must be stricken. Williams, 21 F3d at 222. 4. Even were this Court to consider EXHIBIT 8, Payne's reliance on EXHIBIT 8, is

misplaced. It is a principle of federal discrimination law that the statistical comparison must be made between the employers work force and comparable positions in the general civilian labor force. Not the employers workforce. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650 (1989); Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308
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(1977); Moore v. Hughes Helicopters, 708 F.2d 475, 482-83 (9th Cir. 1983); Valentino v. United States Postal Service, 674 F.2d 56, 71 (D.C.Cir.1982)(If special skills are required for a job, the proxy pool must be that of the local labor force possessing the requisite skills.). Therefore, ALL of the statistical data or conclusions in EXHIBIT 8 which are based on an internal workforce comparison are inadmissible as a matter of law. 5. Paragraph 24 must be stricken as irrelevant and immaterial. Whether or not the

decision was "flawed" fails to raise a genuine issue of material fact, fails to state a claim upon which relief can be granted. It is not the function of a District Court Judge to sit as a court of industrial relations or act as supervisory personnel manager. No matter how allegedly high-handed its decisional process or how allegedly mistaken the employer is,

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Title VII will not interfere, in the absence of a proper showing of impermissible intent or motivation. Pollard v. REA Magnet Wire Co, Inc., 824 F.2d 557, 560-61 (7th Cir. 1987). Nor is a federal district court tasked with the responsibility of reviewing the wisdom or reasonableness of the defendant's articulated reason or reasons for an employment action. Dale v. Chicago Tribune, Co., 797 F.2d at 464 ("Court does not sit as a super-personnel department that reexamines an entities business decisions. ... The question is not whether the [employer] exercised prudent business judgment."); Tozzi v. Union Railroad Co., 722 F. Supp. 1236, 1241 (W.D.Pa. 1989)("...plaintiff cannot create an issue for the fact finder simply by challenging defendant's business judgment."). Rather, the appropriate inquiry is whether this defendant's articulated reasons are both false and mere pretext for unlawful discrimination. Furthermore, a plaintiff must show not merely that the defendant's employment decisions were pretextual but that they were in fact motivated by a prohibited

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discriminatory animus. Combs v. Plantation Patters, 106 F.3d 1519, 1543 (11th Cir. 1997); Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir.1999) (emphasizing that courts "are not in the business of adjudging whether employment decisions are prudent or fair. Instead, our sole concern is whether unlawful discriminatory animus motivates a challenged employment decision"). Therefore, for all of the foregoing reasons ¶ 16-24 and EXHIBITS 8 and 11 must be stricken. D. Defendant objects to moves to strike ¶ 25- 31, 36-50,52-56, 58-60, 61-69 and exhibits 13-18, 20-27, 38, 40, 43-45.

1. Paragraphs 25-31 and EXHIBITS 13, 14, 15, 16 17, 18. a. These paragraphs create serious confusion as multiple non-selection events are

mixed together by Payne.
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Payne has abandoned the claims set forth in PSOF ¶ 25-31. On March 16, 1999, Payne filed an informal complaint of discrimination (Agency Case No. 99-1321) 11in which she alleged that she was discriminated against as the result of her race (AfricanAmerican), color (Black), gender (female), and in reprisal for prior EEO activity when management failed to promote/select her for the position of Computer Specialist, GS-3345/7/9 (PVA#99-023B1)(PSOF EXHIBIT 26) and in addition to that specific position she also claimed that from approximately March 16, 1997 through March 15, 1999 management harassed her by failing to select her for twenty-one other computer positions for a total of 22 non-selections Docket Entry # 73, EXHIBIT E - Counselor's Report

NOTE: In paragraph 63 Payne once again refers to this case. On May 26, 1999 she filed her formal complaint in Case No. 99-1321.
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dated April 14, 1999, at page 2; Docket Entry #73 EXHIBIT G - FAD dated July 13, 1999 at page 1; See also ATTACHMENT A hereto in which Payne listed each of the 22 computer positions by their PVA numbers as a part of her informal complaint in Agency Case No. 99-1321. The Final Agency Decision issued on July 13, 1999, dismissed her formal complaint in Agency Case No. 99-1321 as untimely. Payne did not appeal this adverse decision or file a lawsuit within 90 days. b. PSOF ¶ 26 refers to PVA # 97-139B1 (PSOF EXHIBIT 14)which is one of the

"twenty-two" non-selections referred to in PSOF EXHIBIT 13 (Computer Specialist (Instructor) [97-139B1 ERS 11-4-97 Computer Spec Inst GS-334-9.]. See also PSOF EXHIBIT 14 - non-selection on PVA # 97-139B1. c. The mere fact that a disgruntled employee submits multiple applications for

positions and is not selected does not raise a presumption of unlawful discrimination. Murphy v. General Electric Co., 245 F. Supp.2d 459, 475-76 (N.D.N.Y. 2003)(57 applications). These very remote events are therefore, irrelevant, immaterial and inadmissible. d. As this Court is well aware, in accordance with VA records retention policies the

files regarding these "22 non-selections" were destroyed. The plaintiff is barred by laches and estoppel from relying on these remote events in this lawsuit. The equitable defense of laches consists of two elements: (1) a lack of diligence by the plaintiff, and (2) prejudice resulting from the delay. Under this two prong approach, the plaintiff bears the burden of explaining the delay in bringing suit or relying on the alleged events. Payne offers nothing but righteous indignation and assumes no

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responsibility for the very situation she has created . Wilmes v. U.S. Postal Service, 810 F.2d 130, 133-35 ( 7th Cir. 1987); Lingenfelter v. Keystone Consol. Industries, Inc., 691 F.2d 339, 340-42. (7th Cir., 1982).The plaintiff bears the burden of proof of demonstrating that her unconscionable delay was not unreasonable. Zelazny v. Lyng, 853 F.2d 540, 541 (7th Cir. 1988). This is a burden that she cannot meet. Laches bars those claims where a plaintiff's unreasonable delay in bringing suit harms the defendant. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121-22 (2002); Smith v. Caterpillar, Inc., 338 F.3d730, 733 (7th Cir. 2003); Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 824 (7th Cir. 1999). Application of laches is particularly appropriate in light of the fact that records

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covering the period from 1997 through 2001 are no longer available to the defendant making it impossible to locate comparative applicant/candidate information, potential witnesses and former employees. Payne's abandonment of this EEO case eliminated the need for an appropriate investigation of the charges. The Secretary of the Department of Veterans Affairs has made the required showing that it has been prejudiced by this delay. It is the intent of the plaintiff to present these remote events, and to put her personal "spin" on what happened during the course of these twenty-two to thirty non-selections. Such arguments have been rejected in the Ninth Circuit. E.E.O.C. v. Alioto Fish Co., Ltd., 623 F.2d 86, 88 (9th Cir., 1980)(Title VII); Boone v. Mechanical Specialties Co., 609 F.2d 956, 958-60 (9th Cir. 1979) (Title VII case);Shouse v. Pierce County, 559 F.2d 1142, 1147 (9th Cir.1977) ( "It is extremely rare for laches to be effectively invoked when a plaintiff has filed his action before limitations in an analogous action at law has run."). She must be precluded from placing the

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defendant in the impossible position of defending against 22 to 30 "mini-trials" before a jury when it cannot rebut, without the documentary evidence, her self-serving personal opinions, speculative allegations and those of her proposed witnesses. Lyons v. England, 307 F.3d 1092, 1111, Fn. 13 (9th Cir., 2002); Tennison v. Circus Circus, Enters., 244 F.3d 684, 689-90 (9th Cir. 2001); Wyvill v. United Companies Life Ins. Co., 212 F.3d 296, (5th Cir.2000)( 44 prejudicial mini-trials). To subject the defendant to such a gauntlet would be unconscionable and result in unfair prejudice, confusion of the issues, mislead the jury, cause undue delay and needless waste of time. Furthermore, the minimal value, if any, of such remote events is substantially outweighed by the defendant's rights to a fair trial. Rule 403 Fed.R.Evid.

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Clearly the prejudicial impact on the defendant, before a jury, is the primary goal of such "evidence" and clearly invites reversible error. Hester v. BIC Corp., 225 F.3d 178, 184-86 (2nd Cir., 2000); Caparotta v. Entergy Corp. 168 F.3d 754, 755-58 (5th Cir., 1999) (Employment discrimination case. Comments regarding spoliation were reversible error.) e. There is one serious question regarding Payne continuing efforts to rely on this

"evidence" that has yet to be answered. If the subject documents regarding these alleged non-selections were so very critical to Payne in this lawsuit, she needs to explain to this Court why she did not exercise due diligence to preserve such claims in her prior EEO cases and most recently in her computer specialist non-selection claim which she initiated on December 1, 2000 (Agency Case No. 200P-2674) when some of these records would have still been in existence. She was represented by the same attorney who represents her in this lawsuit.

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Their inconsistent positions and inaction in failing to timely raise these matters during the administrative proceedings should first be explained to this Court before any consideration is given to allowing Payne to rely upon this "evidence" in a Motion for Summary Judgment. f. Clearly the prejudicial impact on the defendant, before a jury, is the primary goal

of such "evidence" and must be excluded in this action. Rules 403, 404 (b), F. R. Evid.; Obrey v. Johnson, 400 F.3d 691, (9th Cir., 2005); Coral Const. Co. v. Coral Const. Co. v. King County, 941 F.2d 910, 919 (9th Cir. 1991); Tennison , 244 F.3d at, 689-90. As she first raised and then abandoned her claims for all of the 22 non-selections for a Computer Specialist position, this Court must strike PSOF ¶ 25- 31 and PSOF

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12

EXHIBITS 13-18. Morgan, 536 U.S. at 113, 121-22;12 Brown , 425 U.S. at 832-33. g. PSOF paragraph 27 and PSOF EXHIBIT 15, refer to the purported arbitration

testimony of Rafael Martinez in an unidentified, unauthenticated purported "arbitration" proceeding of unknown date. This obvious lack of foundation alone requires the striking of this paragraph and exhibit. Further, this document was not produced to the defendant in response to defendant's discovery requests, therefore, it must be stricken. In opposing a motion for summary judgment a party may not rely on evidence produced after the close of discovery. Fed.R.Civ.P. 37(c). Fallar v. Compuware Corp. 202 F. Supp.2d 1067, 1078-79 (D. Ariz., 2002). h. PSOF EXHIBIT 16 is a hand-written "post it note" with no date, no identification

In addition to other equitable defenses, therefore, an employer may raise a laches defenses, which bars a plaintiff from maintaining a suit if he unreasonably delays in filing a suit and as a result harms the defendant.
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of the author of the note, no authentication or foundation for admission into evidence. It must be stricken. A document that lacks proper foundation for authentication cannot be used to defeat a motion for summary judgment. Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir.1987) I. Paragraph 30 and EXHIBIT 17 must be stricken. Payne's conclusory statement

and the attachment of a conclusory "exhibit" that purportedly "signifies" she was "qualified" for the position is inadmissable hearsay. EXHIBIT 17 is nothing more that some form of an identification card purportedly issued by the Microsoft Corporation that purports to indicate that she was "certified" in 1998. It provides no specific definitions, program of instruction, qualifications or level of

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certification as to the meaning of the term "professional." Further, it provides no foundation or authentication that she was "certified" on any relevant basis for any specific degree of expertise in the field of computer technology at issue in any of the computer specialist positions that Payne applied for. As a result EXHIBIT 17 lacks foundation, is purely speculative in nature and it is hearsay. Conclusory allegations are insufficient to raise a genuine issue of material fact. Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir.1986) (subjective personal judgments of qualifications do not raise genuine issues of material fact). Thornhill Publishing Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979)( A conclusory statement and simply does not constitute evidence.); Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir.1988) (explaining that conclusory allegations of discrimination are insufficient to preclude summary judgment); Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.,1983)("mere assertions that [the defendant] had discriminatory motivation and intent ... were inadequate, without

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substantial factual evidence, to raise an issue precluding summary judgment.")If an applicant does not establish that she qualified for the job in question, she has failed to establish a prima facie case. Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1275 (9th Cir.1981). Furthermore, her "Microsoft" card EXHIBIT 17 is dated 1998. Therefore, she did not even possess the card when she applied for this 11/4/97 position. See also PSOF # 59 "completed the course on or about August of 1998." j. Likewise, placement on the list of minimally qualified candidates does not create

a justiciable expectation of being selected. In Higgins, the Ninth Circuit expressly rejected the notion that any plaintiff has an absolute entitlement to a position. Higgins v. City of Vallejo, 823 F.2d 351, 354-55 (9th Cir. 1987). Cf. Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1178 (9th Cir. 1998). While Payne may have subjectively had some hope of promotion, she did not have a legitimate expectation of being promoted which was protected by Title VII. Cf. Mustafa, 157 F.3d at 1178. k. PSOF EXHIBIT 18 must be stricken. While PSOF ¶ 30 refers to the "affidavit" of

Donna Tyson, however, there is no affidavit attached. Rather EXHIBIT 18 consists of 14 pages of paper which lack authentication and foundation. Tyson is not even identified as the witness. As such it must be stricken. A document that lacks proper foundation for authentication cannot be used to defeat a motion for summary judgment. Canada., 831 F.2d at 925. If indeed this is the testimony of Tyson in Agency Case No. 98-3542 as Payne alleges, several serious issues arise: (1) Payne on two occasions sought sanctions against the defendant for the unlawful destruction of the administrative file in Agency Case No. 98-3542. Docket Entry # 67 at

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p. 10; Docket Entry # 74 at p. 6; Docket Entry # 80 at pp. 3-4. Payne petitioned the Court to enter default judgment on her behalf or impose severe sanctions to punish on the defendant so that future VA employees would not suffer from the VA's illegal conduct of destroying documents in discrimination cases. See, 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."). (2) PSOF EXHIBITS 15 and 18 were not produced in response to defendant's

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discovery requests. Further, she was requested to produce any and all documents that she intended to rely upon at the time of trial. This is the first time that defense counsel has seen the purported hearing transcript in Agency Case No. 98-3542 and union arbitration transcript. Therefore, these two exhibits must be stricken. Fallar, 202 F. Supp.2d at 107879. l. Payne admits in PSOF ¶ 31 that "no one was selected." Such an admission against

interest precludes any relief for failure to state a prima facie case. Payne has failed to prove that the position, apparently PVA #97-139B1, remained open and that the defendant continued to look for a candidate. Bouman v. Block, 940 F.2d 1211, 1223 (9th Cir., 1991); Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1148-49 (9th Cir.1997); Williams v. Edward Apffels Coffee Co., 792 F.2d 1482, 1485 (9th Cir., 1986). m. The events referred to in PSOF ¶ 25-31 are simply too remote and attenuated to

support Payne's retaliation claims. Villiarimo, 281 F.3d at 1065.

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n.

The purported testimony of Tyson, even if admissible, are as a matter of law,

insufficient to raise a genuine issue of material fact. This testimony relates to nonselections which pre-date the retaliation claims before this Court. This "evidence" does not raise genuine issues of material fact. How can testimony given in a 1998 EEO proceeding have any relevance to an entirely different selection process with different applicants that occurred two and three years in the future? Therefore, for all the foregoing reasons the defendant moves to strike this Court must strike PSOF ¶ 25- 31 and PSOF EXHIBITS 13-18. 2. a. Paragraphs 36-50 and EXHIBITS 18, 20, 21, In these paragraphs Payne is relying upon the claims raised in Agency Case No.

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98-3542 which she filed after she was non-selected for a Computer Specialist Position GS-9. These events took place over two years prior to the events of 2000. Payne did not prevail in Agency Case No. 98-3542 and her appeal was dismissed on May 31, 2000. She did not file an action in federal court within the mandatory 90 day time period. She is not permitted to re-litigate a case that she abandoned over six years ago. Morgan, 536 U.S. at 113; Brown , 425 U.S. at 832-33. b. Payne personal opinion that she was qualified back in 1998 has no bearing on her

qualifications when she applied in 2000 for the Computer Specialist GS 5/7/9 position and competed against different candidates. Paragraph 37 must be stricken as conclusory. Schuler , 793 F.2d at 1011. Furthermore, this prior EEO case is simply irrelevant and inadmissible for any purpose in this lawsuit. Morgan, 536 U.S. at 113; Brown , 425 U.S. at 832-33. To permit Payne to re-litigate these stale claims would unfairly prejudice the rights of the defendant, create undue delay, waste time and confuse and mislead a jury.

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Rule 403, F.R.Evid. c. Payne seeks to re-litigate in this lawsuit every prior administrative proceeding that

she lost. To permit this to occur, the trial in this matter would necessitate several "minitrials" over matters Payne abandoned long ago. Tennison v. Circus Circus, Enters., 244 F.3d 684, 689-90 (9th Cir. 2001); Wyvill v. United Companies Life Ins. Co., 212 F.3d 296, (5th Cir.2000)( 44 prejudicial mini-trials). To subject the defendant to such a gauntlet would be unconscionable and result in unfair prejudice, confusion of the issues, mislead the jury, cause undue delay and needless waste of time. Furthermore, the minimal value, if any, of such remote events is substantially outweighed by the defendant's rights to a fair trial. Rule 403 Fed.R.Evid.

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Clearly the prejudicial impact on the defendant, before a jury, is the primary goal of such "evidence" and clearly invites reversible error. Hester v. BIC Corp., 225 F.3d 178, 184-86 (2nd Cir., 2000); Caparotta v. Entergy Corp. 168 F.3d 754, 755-58 (5th Cir., 1999). Therefore, ¶'s 36-50 and EXHIBITS 18, 20, 21 and 22 must be stricken. 3. a. Paragraphs 52-56 and EXHIBITS 22-24. PVA #98-114B1 is yet another of the so-called "22 non-selections." PSOF

EXHIBIT 13. She abandoned this non-selection in Agency Case No. 99-1321, which was dismissed on July 13, 1999 as untimely. In that case, Payne alleged non-selection for a computer position that was offered under PVA99-023B1 and harassment for her nonselection in 22 other Computer Specialist Position ( "From approximately 3/16/97 through 3/15/99 management has harassed you by failing to select you for twenty-two positions/vacancies."). Docket Entry # 73, EXHIBIT G. Payne did not appeal this

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adverse decision or file a lawsuit within 90 days. She is not permitted to re-litigate a case that was dismissed over seven years ago. Morgan, 536 U.S. at 113; Brown , 425 U.S. at 832-33. Payne's personal opinion that she was qualified back in 1998 has no bearing on her qualifications when she applied in 2000 for the Computer Specialist GS5/7/9 position and competed against different candidates. Schuler , 793 F.2d at 1011. b. This prior EEO case is simply irrelevant and inadmissible for any purpose in this

lawsuit. To permit Payne to re-litigate these stale claims would create unfair prejudice the rights of the defendant, create undue delay, waste time and confuse and mislead a jury. Rule 403,F.R.Evid. Furthermore, Payne seeks to re-litigate in this lawsuit every prior administrative proceeding that she lost. To permit this to occur, the trial in this matter

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would necessitate several "mini-trial" over matters Payne abandoned long ago. Tennison v. Circus Circus, Enters., 244 F.3d 684, 689-90 (9th Cir. 2001); Wyvill v. United Companies Life Ins. Co., 212 F.3d 296, (5th Cir.2000)( 44 prejudicial mini-trials). To subject the defendant to such a gauntlet would be unconscionable and result in unfair prejudice, confusion of the issues, mislead the jury, cause undue delay and needless waste of time. Furthermore, the minimal value, if any, of such remote events is substantially outweighed by the defendant's rights to a fair trial. Rule 403 Fed.R.Evid. Clearly the prejudicial impact on the defendant, before a jury, is the primary goal of such "evidence" and clearly invites reversible error. Hester v. BIC Corp., 225 F.3d 178, 184-86 (2nd Cir., 2000); Caparotta v. Entergy Corp. 168 F.3d 754, 755-58 (5th Cir., 1999). c. Paragraph 53 is a conclusory statement and must be stricken. Schuler , 793 F.2d at

1011. Further, EXHIBIT 23, merely states that she was placed on the "qualified" list for

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the position. Placement on the list of minimally qualified candidates does not create a justiciable expectation of being selected. In Higgins, the Ninth Circuit expressly rejected the notion that any plaintiff has an absolute entitlement to a position. Higgins v. City of Vallejo, 823 F.2d 351, 354-55 (9th Cir. 1987). Cf. Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1178 (9th Cir. 1998). While Payne may have subjectively had some hope of promotion, she did not have a legitimate expectation of being promoted which was protected by Title VII. Cf. Mustafa, 157 F.3d at 1178 The selecting official has the discretion to choose among the qualified candidates, provided that the decision is not based upon unlawful criteria. Texas Dept. of Community Affairs v. Burdine, 101 S.Ct. 1089, 1097 (1978); Odima v Westin Tucson Hotel Co., 991

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F.2d at 602. Payne's personal assessment of her competence does not raise a genuine issue of material fact. Coleman v. Quaker Oats Co. 232 F.3d 1271, 1285 (9th Cir. 2000); Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270 (9th Cir.1996). Therefore, ¶ 52 - 56 and EXHIBITS 22, 23 and 24 must be stricken. 4. a. Paragraphs 58-60 and EXHIBITS 6, 17 and 18. Paragraphs 58, 59 and 60 are conclusory and hearsay statements that also lacks

foundation and must be stricken. Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1335 n. 9 (9th Cir.1980). Paragraph 60 is blatant hearsay. Canada, 831 F.2d at 925. b. EXHIBIT 18 must be stricken for all the reasons stated above which are

incorporated herein by reference. c. EXHIBIT 17 must be stricken for all the reasons stated above which are

incorporated herein by reference. EXHIBIT 17 lacks foundation, is purely speculative in
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nature and it is hearsay. Conclusory allegations are insufficient to raise a genuine issue of material fact. Schuler , 793 F.2d at 1011; Thornhill, 594 F.2d at 738; Forsberg, 840 F.2d at 1419; Steckl, 703 F.2d at 393. Payne has never once properly established that she was in fact more qualified for the jobs she applied than any of the selectees. She has failed to establish a prima facie case. Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1275 (9th Cir.1981). d. EXHIBIT 6 must be stricken. Fears was not testifying from his personal

knowledge regarding Payne's qualifications. Nor has Payne established that he was a decision maker on any of her non-selections. Furthermore, he was being asked to state what was printed on the Microsoft card, what relevance this testimony has to anything

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before this Court is a complete mystery. e. Fears testimony does not support Payne's positions stated in ¶'s 58-60. Since it has

not been shown that Fears had personal knowledge of Payne's qualifications based on the Microsoft card, EXHIBIT 6 must be stricken as irrelevant and immaterial. 5. a. Paragraphs 61-64 and EXHIBIT 25. These paragraphs misrepresent the events in three entirely separate EEO

complaints filed by Payne. Paragraphs 61 and 62 are related to Agency Case No. 983542, whereas paragraph 63 relates to Agency Case No. 99-1321, whereas paragraph 64 relates to Agency Case No. 99-3654 (which is not a non-selection case). b. Paragraphs 61 and 62 relate to Agency Case No. 98-3542. On October 26, 1999

she received an adverse decision. Docket Entry # 73, EXHIBIT D. She appealed. On

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May 31, 2000 her appeal was dismissed and she failed to file a lawsuit within 90 days.13 She is not permitted to re-litigate a case that was dismissed over 6 years ago. Morgan, 536 U.S. at 113; Brown , 425 U.S. at 832-33. Payne's personal opinion that she was qualified back in 1998 has no bearing on her qualifications when she applied in 2000 for the Computer Specialist GS5/7/9 and competed against different candidates. This prior EEO case is simply irrelevant and inadmissible for any purpose. To permit Payne to relitigate these stale claims would unfairly prejudice the rights of the defendant, create undue delay, waste time and confuse and mislead a jury. Rule 403,F.R.Evid. Further, as Payne seeks to re-litigate every prior administrative proceeding that she lost, the trial is this matter would necessitate several "mini-trials" over matters Payne abandoned.

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13

c.

Paragraph 62 is a blatant and material misrepresentation to the Court. Payne states:

"On July 14, 1999, the EEO determined that Liz had been non-selected and retaliated against" This statement is false. PSOF Exhibit 25 is only the EEO Investigator's Report. As a matter of law an Investigator's Report is not a Final Decision. Under the regulations, the report of the investigator is intended to serve as a basis from which the agency and the complainant ascertain the basic facts of the case and attempt an informal resolution of the complaint. If an informal resolution is not agreed upon, the agency must notify the complainant of her right to a decision by the head of the agency or his designee, or proceed to a hearing by an administrative judge. If the complainant desires a hearing, the administrative judge will include the record of the proceeding in the complaint file and recommend a decision to the head of the agency. The Final Agency Decision is made by

Nor has she provided any proof that she filed a lawsuit.
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the head of the agency or his designee, based upon the information in the complaint file and the record of the hearing. While the investigator's report, is a part of the complaint file, it is in no sense a decision of the agency. Weahkee v. Perry, 587 F.2d 1256, 1264 (D.C.Cir., 1978). This is a material misrepresentation of fact to this Court and paragraph 62 must be stricken. d. Paragraph 63 relates to Agency Case No. 99-1321 (See discussion, section D.1.a.

and 3.a. infra at pages 14-15 and Fn 10 and pages 24-25 ) and it must be stricken for the reasons previously stated. e. Paragraph 64 is yet another material misstatement of fact. Payne did not file an

amended complaint on July 15, 1999. Nor did she file a a "non-selection" case on that
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date. On June 18, 1999, the Plaintiff filed an informal complaint of discrimination in which she alleged that she was discriminated against as the result of her race (AfricanAmerican), color (Black), gender (female), and in reprisal for prior EEO activity when the Chief, Information Resources Management Department denied her request to volunteer in the department. Docket Entry # 73, See Counselor's Report dated July 19, 1999, Exhibit H. f. On July 15, 1999, Payne filed a formal complaint of discrimination. In her formal

complaint of discrimination, she alleged that she was discriminated against as the result of her race (African-American), color (Black), gender (female), and in reprisal for prior EEO activity. Docket Entry # 73, See Formal Complaint of Discrimination dated July 15, 1999, attached thereto as Exhibit I. The VA Office of Resolution Management assigned the matter case number 99-3654.

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The VA ORM concluded that the Payne had failed to state a claim upon which relief could be granted, as required by 29 C.F.R. § 1614.103, 29 C.F.R. § 1614.106 and 29 C.F.R. § 1614.107(a) and dismissed her complaint. Docket Entry # 73, See Final Agency Decision dated August 15, 1999, Exhibit J. Payne never administratively appealed this adverse decision. Nor did she file a timely lawsuit in Federal District Court.14 For all the foregoing reasons, ¶ 61-64 and EXHIBIT 25 must be stricken. 6. a. Paragraphs 65-69 and EXHIBITS 22, 24, 26 These paragraphs relate, once again, to one of the so-called "22 non-selections."

See, PSOF EXHIBIT 13. b. In PSOF ¶ 65, Payne has transposed the PVA number. The correct PVA is #99-

023B1 and not PVA#99-032B1. See PSOF EXHIBIT 26 - upper right hand corner. PSOF ¶'s 65-69 all relate to PVA #99-023B1 which was abandoned in EEO Case No.99-1321( "From approximately 3/16/97 through 3/15/99 management has harassed you by failing to select you for twenty-two positions/vacancies."). Payne abandoned all of these claims after receiving an adverse decision on July 13, 1999. Docket Entry # 73, Exhibit G. She did not file an administrative appeal. She did not file a timely action in Federal District Court. She is not permitted to re-litigate a case that was dismissed over seven years ago. Morgan, 536 U.S. at 113; Brown, 425 U.S. at 832-33. c. Payne's personal opinion that she was qualified back in 1999 has no bearing on her

qualifications when she applied in 2000 for the Computer Specialist GS5/7/9 position

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Nor has she provided any proof that she filed a lawsuit.
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and competed against different candidates. Schuler , 793 F.2d at 1011. d. This prior EEO case is simply irrelevant and inadmissible for any purpose in this

lawsuit. To permit Payne to re-litigate these stale claims would create unfair prejudice the rights of the defendant, create undue delay, waste time and confuse and mislead a jury. Rule 403, F.R.Evid. Further, as Payne seeks to re-litigate every prior administrative proceeding that she lost, the trial is this matter would necessitate several "mini-trials" over matters Payne abandoned long ago. Therefore, ¶'s 65-69 and EXHIBITS 22, 24, 26. Must be stricken. 7. Defendant objects to and moves to strike Paragraphs72-73, 79, 80 and exhibits 28 and 30 NEWSPAPER ARTICLES Payne has repeatedly attached copies of various newspaper articles appearing in

a.

the Arizona Informant to her Complaints and various pleadings. This publication is funded by the NAACP and is therefore a publication of a special interest group. Such publications by a special interest group, in addition to being hearsay and double hearsay, are inherently biased. Larez v. City of Los Angeles, 946 F.2d 630, 643 (9th Cir., 1991) b. Payne as the proponent of this "evidence" bears the burden of establishing its

admissibility. Canada, 831 F.2d at 925. Furthermore, the fact that Payne has engaged in various forms of protected conduct is not a contested issue. The defendant has admitted that Payne engaged in a wide variety of protected conduct. See, DSOF,¶ 55. Furthermore, ¶'s 72 and 73 are hearsay and must be stricken. Canada, 831 F2d. At 925. c. At no time during these proceedings, including in her Statement of Facts, has

Payne proffered a reason why this Court or a jury would be permitted to read and
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consider the contents of these various articles. In fact, these articles lack proper foundation, are prejudicial and inadmissible hearsay and double hearsay, as such there is no valid reason to inject them into this lawsuit. They must be stricken. Green v. Maricopa County Community College School Dist., 265 F. Supp.2d 1110, 1134 (D.Ariz., 2003) (The newspaper article lacks foundation and is inadmissible hearsay as to the truth of all its contents .) d. Further, it is obvious that they are being submitted as inflammatory, highly

prejudicial statements intended to place the defendant in a false light before this Court and ultimately a jury. Should such hearsay be admitted into evidence before a jury, irreparable damage would occur with respect to the substantial rights of the defendant

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15

sufficient to constitute reversible error. E. The defendant objects to and moves to strike paragraphs 27, 71, 109, 110, 111, 115,116, and 117 and EXHIBITS 15, 27, 38, 40, 4315, 44, and 45 These exhibits lack a foundation and authentication. They consist of completely

a.

unidentified pieces of paper. The Court cannot tell when the statements were made, in what proceeding they were made, the date they were made, who was asking the questions and who was answering the questions. Therefore all of these exhibits must be stricken. Canada, 831 F.2d at 925. b. As Payne PSOF paragraphs 27, 71, 109, 110, 111, 115,116, and 117 were based on c.

these exhibits they too must be also be stricken as hearsay and conclusory statements. The alleged testimony of Randy Brumm in paragraphs 115, 116, 117 and the alleged testimony of Carol Gray in paragraph 117, must be stricken for lack of a proper

Exhibit 43 is not the testimony of Martinez but rather Mucerino; Brumm; Lieberman. 30

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foundation, as hearsay and for the reason that such testimony is not based upon their personal knowledge. Rules 602, 802 F.R.Evid.; F.R.Civ.P. 56(e); Latman v. Burdette, 366 F.3d 774, 787 (9th Cir.2004). b. More fundamental reasons exclude this "evidence." Payne has never produced

these documents in response to defendant's discovery requests, i.e., Exhibits 15, 27, 38, 40, 43-45. After several extensions, discovery closed on March 27, 2006 with all supplementation to be completed by April 24, 2006. Therefore, Payne's failure to produce the contents of Exhibits 15, 27, 38, 40, 4345 to the defendant, in and of itself, warrants the exclusion of this these documents now and at the time of trial. Furthermore, in summary judgment practice, a party may not rely on evidence produced after the close of discovery. Fed.R.Civ.P. 37(c). Fallar. 202 F. Supp.2d at 1078-79. c. During the pendency of Agency Case No.200P-0644-2002100409 ("The Transfer

Case") the Plaintiff also filed, on January 2, 2002, a grievance under the Agency's collective bargaining agreement with the American Federation of Government Employees Union. See, ATTACHMENT B.

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On July 25, 2002, July 26, 2002, December 5, 2002 and December 11, 2002, Payne, represented by counsel, participated in the labor arbitration in which she argued, inter alia, that she was discriminated against by management in her involuntary transfer from the Mental Health and Behavioral Sciences Service Line to the Human Resources Management Service. At the conclusion of the labor arbitration, on March 7, 2003 the Arbitrator dismissed the union grievance as non-grievable. Whereupon, the Agency filed a Motion
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to Dismiss the Payne's formal EEOC complaint in the "Transfer Case" for the reason that Payne had irrevocably selected her forum in the labor arbitration under 5 U.S.C. § 7121(d). On October 27, 2003, the EEOC Administrative Judge granted the Agency's motion and dismissed Payne's EEO complaint. See Docket Entry # 73, Exhibit K. EEOC Administrative Judge's decision dated October 27, 2003. d. The transcripts from the union grievance arbitration proceedings may not be

considered by this Court in ruling on the cross-motions for Summary Judgment nor may they be relied upon or introduced as evidence at the time of trial. There is no identity of the "subject matter." Hub v. Sun Valley Co.682 F.2d 776,

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778 (9th Cir., 1982)( Plaintiff failed to show that the deposition relates to issues common to both lawsuits.) Courts have required a substantial identity of issues. George R. Whitten, Jr., Inc. v. State University Const. Fund, 359 F. Supp. 1037 , 1039 (D. Mass. 1973)("In the present case, plaintiff has neither made nor attempted to make a showing of substantial identity of issues."). A collective bargaining proceeding is based on contract and the federal antidiscrimination laws are based upon public policy as defined by Congress. Further, the procedural rules, rules of evidence, discovery and cross-examination governing arbitrations are not the same as those governed by the Federal Rules of Evidence or Federal Civil Procedure. The United States Supreme Court has recognized the independent jurisdictional differences between administrative proceedings based on Collective Bargaining Agreements and a lawsuit based upon federal anti-discrimination statutes.

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In Alexander v. Gardner Denver Company, 415 U.S. 36, 56-58 (1974)16 the Supreme Court held: Moreover, a contractual right to submit a claim to arbitration is not displaced simply because Congress also has provided a statutory right against discrimination. Both rights have legally independent origins and are equally available to the aggrieved employee. This point becomes apparent through consideration of the role of the arbitrator in the system of industrial self-government. As the proctor of the bargain, the arbitrator's task is to effectuate the intent of the parties. His source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the 'industrial common law of the shop' and the various needs and desires of the parties. The arbitrator, however, has no general authority to invoke public laws that conflict with the bargain between the parties . ... '(A)n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.' United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). *** Arbitral procedures, while well suited to the resolution of contractual disputes, make arbitration a comparatively inappropriate forum for the final resolution of rights created by Title VII. This conclusion rests first on the special role of the arbitrator, whose task is to effectuate the intent of the parties rather than the requirements of enacted legislation. Where the collective-bargaining agreement conflicts with Title VII, the arbitrator must follow the agreement. To be sure, the tension between contractual and statutory objectives may be mitigated where a collective-bargaining agreement contains provisions facially similar to those of Title VII. But other facts may still render arbitral processes comparatively inferior to judicial processes in the protection of Title VII rights. Among these is the fact that the specialized competence of arbitrators pertains primarily to the
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See also, McDonald v. City of West Branch,466 U.S. 284, 289 - 92 (1984).

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Case 2:03-cv-02300-ROS

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law of the shop, not the law of the land. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581--583, 80 S.Ct. 1347, 1352--1353, 4 L.Ed.2d 1409 (1960). Parties usually choose an arbitrator because they trust his knowledge and judgment concerning the demands and norms of industrial relations. On the other hand, the resolution of statutory or constitutional issues is a primary responsibility of courts, and judicial construction has proved especially necessary with respect to Title VII, whose broad language frequently can be given meaning only by reference to public law concepts. More over, the factfinding process in arbitration usually is not equivalent to judicial factfinding. The record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, and testimony under oath, are often severely limited or unavailable. See Bernhardt v. Polygraphic Co., 350 U.S. 198, 203, 76 S.Ct. 273, 276, 100 L.Ed. 199 (1956); Wilko v. Swan, 346 U.S., at 435--437, 74 S.Ct., at 186--188. *** Indeed, it is the informality of arbitral procedure that enables it to function as an efficient, inexpensive, and expeditious means for dispute resolution. This same characteristic, however, makes arbitration a less appropriate forum for final resolution of Title VII issues than the federal courts. 415 U.S. at 57.

Payne is impermissibly attempting to boot-strap a union gr