Free Response in Opposition to Motion - 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, Defendant. CIV-03-2300 PHX ROS DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Defendant, R. James Nicholson, Secretary Department of Veteran's Affairs, by and through undersigned counsel, respectfully submits his Response to plaintiff's Motion for Summary Judgment. For the reasons set forth in this Response and other matters of record, the defendant respectfully requests the Court to deny plaintiff's Motion for Summary Judgment. This Response is based upon the attached Memorandum of Points and Authorities, Defendant's Motion to Strike filed this date and other matters 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 1

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Payne's Motion for Summary Judgment 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" )1 and (2) Agency Case No. 200P-0644-2002100409 ("The Transfer Case). Contrary to Payne's Statement of Facts (PSOF) and Motion for Summary Judgment (PMSJ), 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 or union grievance 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 EEO cases or her union grievance. Therefore, any facts, allegations, testimony or exhibits related to these prior EEO cases or prior grievance 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); 5 U.S.C. 7121. Although Payne seeks to admit these prior matters based on the theory of "continuing violation," reliance on this theory lacks any basis in law. Further, although 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. 2
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Payne does not seek to have these prior matters admitted "background" evidence, even if she did, such evidence is inadmissible. 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 relitigate, 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 December 1, 2003, must be denied. 2 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.3 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). 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, exhibits and Memorandum of Points and Authorities. Brown v. Puget
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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. 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). 3
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Sound Electrical Apprenticeship & Training Trust, 732 F.2d 726, 730 (9th Cir., 1984).4 The fact that Payne may have raised disparate treatment and/or disparate impact 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 after the entry of the adverse decisions. 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). In a separate pleading the defendant has moved to strike specific factual allegation and exhibits in PSOF. 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 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). Payne's Motion for Summary Judgment must be denied as she has failed to sustain her burden of proof that the stated reasons for the actions taken by the defendant were a pretext for unlawful retaliation. A plaintiff can prove pretext either (1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.' " Lyons v. England, 307 F.3d at 1113; Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-22 (9th Cir.1998).To meet her ultimate burden, Payne must produce reliable evidence. Payne may not simply state generalizations, Warren v. 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. 4
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City of Carlsbad, 58 F.3d 439, 443 (9th Cir.1995), nor may she rely on the mere temporary proximity between the protected activity and the retaliation to create a triable issue of fact after the employer has, as here, offered legitimate reasons for his actions. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064-65 (9th Cir.2002); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987); Miller v. Fairchild Industries, Inc., 797 F.2d 727, 731 (9th Cir. 1986).
A plaintiff may not obtain summary judgment merely by denying the credibility

of the proffered reason for the challenged employment action. Wallis, 26 F.3d at 890; Schuler v. Chronicle Broad. Co., 793 F.2d 1010, 1011 (9th Cir.1986). Nor may a plaintiff create a genuine issue of material fact by the plaintiff's subjective belief that the challenged employment action was unnecessary or unwarranted. Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir.1996). The plaintiff must produce "specific, substantial evidence of pretext." Godwin v. Hunt Wesson, 150 F.3d 1217, 1222 (9th Cir.1998) ; Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983). The general principles of summary judgment apply with equal force to employment discrimination claims. Godwin, 150 F.3d at 1222; Wallis. 26 F.3d at 890-91 (9th Cir. 1994); Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir.1991); Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420 (9th Cir. 1990). Summary judgment not appropriate for discrimination claims when, as here, the plaintiff does nothing more that
present conclusory allegations. Hoeppner v. Crotched Mountain Rehabilitation Center Inc., 31 F3d 9, 14 (1st Cir. 1994); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).

It is settled law that the plaintiff's own beliefs or feelings that he was the victim of disparate treatment are insufficient, as a matter of law, to preclude summary judgment for the defendant. Lediju v. New York City Department of Sanitation, 173 F.R.D. 105,114 (S.D.N.Y. 1997); Arzate v. City of Topeka, 884 F. Supp. 1494, 1501 (D.Kan. 1995). Payne, in essence, rests her claims of retaliation exclusively on her conclusory assertions that her participation in protected activity explains all the events of which she complains. This is simply not sufficient to warrant entry of summary judgment on her behalf. Smith 5

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v. American Express, 853 F.2d 151, 154-55 (2nd Cir. 1988). An employee's own subjective belief of discrimination, no matter how honestly and genuinely held, cannot serve as a basis for judicial relief in a Title VII action. Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996); Amendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152-53 (5th Cir. 1995). ARGUMENT I. Payne has abandoned her March 4, 2002 retaliation claims. On March 4, 2002, the Plaintiff requested that the additional claims be added to her formal EEO Transfer Case Complaint. See DSOF ¶ 42 Payne claimed that she suffered retaliation for prior EEO activity when (1) She was notified on February 11, 2002 that she was not qualified for a Human Resources Management Specialist position that she had applied for, (2) on February 20, 2002, when she was asked to log in and out when she left the HR department and was notified that her morning arrival and afternoon departure times would be monitored and (3) she was asked to develop a training program. Payne has not sought summary judgment on these retaliation claims and has therefore waived them. II. a. Payne has failed to produce "specific, substantial evidence of pretext. No cause of action for disparate treatment or disparate impact claims. Payne begins her argument with a statement that the VA has a long historic record of discriminating against blacks and especially black women. Not only does this statement lack a factual basis, it is irrelevant to the two retaliation cases before this Court. While such allegations, if valid and deemed admissible, may be relevant in a disparate treatment and/or disparate impact cases, when, as here, 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." 6

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Retaliation claims, governed by 42 U.S.C.§ 2000e-3(a), are not reasonably related to disparate treatment or disparate impact claims. 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). 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 PMSJ. Brown v. Puget Sound Electrical Apprenticeship & Training Trust, 732 F.2d 726, 730 (9th Cir., 1984).5 The fact that Payne may have raised disparate treatment and/or disparate impact 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). b. Payne lost every prior EEO complaint and her union grievance. Payne goes on to claim on pages 19-20, that on July 14, 1999, "the EEO determined that Plaintiff had been non-selected and retaliated against for reporting the derogatory email." This statement is false and a material misrepresentation to this Court.. 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 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. 7
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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 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). c. EEOC Notice inadmissible. Payne, on page 20, relies upon a January 17, 2000, EEOC "Notice to Employees " as further evidence of this "long history of discrimination." Payne seems to assert that this document sustains her burden of proof of pretext. It does not. She has not shown how this posting in any way relates to her justiciable retaliation claims, or that she is similarly situated to the underlying proceeding that lead to the issuance of the Notice. Payne provides no information at all as to the basis for the issuance of the Notice. Payne has not established that this notice related to retaliation claims filed by Black Women who were similarly situated to her with respect to claims of retaliation for protected conduct. The mere fact that a Notice was posted proves nothing relevant to the retaliation issues before this Court. Payne as the proponent of this "evidence" bears the burden of establishing its admissibility. Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir.1987) Payne fails to even proffered a reason why this Court or a jury should be permitted to read and consider the contents of this Notice. If she is offering it as evidence of prior misconduct, it is inadmissible under Rule 404 F.R.Evid. Moreover, the allusion to a prior discrimination dispute against the CTHVAMC, in order to raise the inference that the CTHVAMC was acting in conformity with its prior alleged conduct in her case, violates Rule 404(b), F.R.Evid. This rule of evidence generally prohibits the use of evidence of prior bad acts to show conduct in conformity therewith. Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1208 (9th Cir. 2002); Becker v. ARCO Chem. Co., 207 F.3d 176, 194-203 (3d Cir.2000). Evidence of other bad acts may be admitted to show other "non-character" 8

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purposes. In order for other acts to be admissible, four criteria must be met: (1) there must be sufficient proof for the jury to find that the defendant committed the other act; (2) the other act must not be too remote in time; (3) the other act must be introduced to prove a material fact in the case; and (4) the other act must, if knowledge or intent is at issue, be similar to the offense charged. United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir.2004); Duran v. City of Maywood, 221 F.3d 1129, 1132-33 (9th Cir.2000). Such evidence should still be excluded where if its prejudicial effect substantially outweighs its probative value under Rule 403. In any event, even assuming the Notice did involve a similarly situated VA employee, in a retaliation case, a plaintiff cannot testify about other acts of alleged retaliation against others unless the plaintiff presents admissible evidence that he/she witnessed the alleged retaliation or the alleged incidents were related to him/her while on the job. Biggs v. The Nicewonger Co., Inc., 897 F.Supp. 483, 485 (D. Or.1995). Other act evidence is only relevant if the jury could reasonably find, by a preponderance of the evidence, that the other acts actually took place. Huddleston v. United States, 485 U.S. 681, 689 (1988). As this Notice lacks a proper foundation, is prejudicial and inadmissible hearsay and double hearsay, as such there is no valid reason to inject this Notice into this lawsuit. It is therefore obvious that Payne has attached this document to Motion for Summary Judgment 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 sufficient to constitute reversible error. c. Payne may not rely on Affirmative Action Plans or "statistics." On pages 16-19 on Payne relies upon "statistical evidence," the 1997 CTHVAMC "Multi-Year Affirmative Employment Program" and a November 19 2001 "Annual Affirmative Employment Program Accomplishment Report" to assert that she should

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have been selected for a Computer Specialist Position.6 Such argument lack a factual or legal basis. Statistical data whether generated within an Affirmative Action Plan or otherwise, are simply irrelevant in retaliation cases. Her non-selections occurred in 2000 and 2002.7 The 1997 Multi-year Affirmative Action Plan, (AAP) even assuming Payne's argument, would have only covered 1997 to 1998. As a result EXHIBIT 19 has no relationship or relevance to the alleged retaliation that occurred in 2000 and 2002. Further, these documents were not obtained through the discovery process. Payne presents no evidence that either PSOF EXHIBIT 19 or 37 were imposed as a result of a federal court order which specifically mandated the hiring of members of protected groups. In any event, absent a specific federal court Order the defendant is not "mandated" by these voluntary Plans which merely set goals. This is not a class action suit and Payne lacks standing to raise alleged discriminatory practices by the defendant against all black females employed at CTHVAMC. Therefore, Payne meritless statements that these Plans "mandated" such action, lacks a basis in fact and law. As a matter of law, an employer is not required to give preferential treatment to minorities or women." Odima v. Westin Tucson Hotel Co., 991 F.2d 595, 601 (9th Cir., 1993).There is no requirement that an employer hire a minority applicant instead of a non-minority applicant, even when their objective qualifications are equal. Id.; Ayon v. Sampson, 547 F.2d 446, 451(9th Cir., 1976). The mere fact that the CTHVAMC had one or more "Affirmative Action Plans" or prepared the November 21, 1997 Site Visit Report, is truly irrelevant. Payne was not as

The defendant has objected to and has moved to strike these exhibits and incorporates by reference those argument herein from the Motion to Strike. On February 11, 2002, Payne was notified that she did not meet the minimum qualifications for the GS-11 HRMS position. As she does not even mention the HRMS position in her Motion for Summary Judgement or in PSOF she has waived this allegation of retaliation. 10
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qualified for the computer specialist position as was Mr. Pyle. Payne also did not possess the minimum requirements for the GS-11 Human Resources Management Specialist (HRMS) position. Although federal law protects job applicants against discrimination, it does not afford them special preference or place upon the employer an affirmative duty to accord special treatment. See, 42 U.S.C.§ 2000e-2(j); see also Burdine 450 U.S. at 259; Sessions v. Rusk State Hosp., 648 F.2d 1066, 1071 (5th Cir. 1981); Wynn v. Columbus Mun. Separate Sch. Dist., 692 F. Supp. 672, 684 (N.D. Miss. 1988). Furthermore, although alleged in the Amended Complaint, the disparate treatment and disparate impact cause of action for employment discrimination are not properly before this Court. Additionally, Payne formally withdrew her non-justiciable claims of disparate treatment and impact claims when she filed her motion to further amend her complaint on December 6, 2005. Docket Entry # 68. Neither of these theories are present in the Proposed Second Amended Complaint. Payne's Motion to Amend is under advisement. While the data within an AAP has been admitted into evidence by some courts in disparate treatment and disparate impact cases8, Payne has failed to cite a federal case which permitted such evidence in support of retaliation claims. Further, she did not raise any issues even remotely related to the AAP's in the "Non-Selection Case" or the "Transfer Case." Her sole complaint was retaliation in both these cases. e. Payne's RIF arguments are improper. Payne's arguments that she was a victim of an unlawful RIF are specious. She has never produced a letter from the VA addressed to her stating that she was being discharged or transferred because of a Reduction in Force action. She seems to rely on a letter from CTHVAMC to the Randy Brumm dated October 15, 2001. DSOF ¶ 30, Payne has not identified a specific policy of the CTHVAMC that has had an unfair impact on Black females who are applying for a Computer Specialist position. 11
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Exhibit 1(d) at last page. This letter was required by the terms of the Collective Bargaining Agreement. As a matter of law, this Notification does not constitute retaliation as it was issued pursuant to the Notice Requirements. Williams v. General Motors Corp., 18 Fed. Appx. 342, 349( 6th Cir., 2001); Williams v. General Motors Corp., 187 F.3d 553, 568( 6th Cir., 1999). Payne readily admits that the CTHVAMC was denied RIF authority on December 3, 2001. PSOF ¶ 107. What she fails to mention is the fact that her transfer to her position as a Human Resources Assistant was dated December 4, 2001 and was not effective until December 31, 2001. DSOF Exhibit 11. This was a transfer by the Medical Center Director, not a Reduction in Force action. Only by such means was the defendant able to keep Payne employed, a fact she refuses to acknowledge. The fact that the defendant did everything her could, under then existing circumstances, to provide employment to Payne the same grade and pay levels, is obviously not retaliatory. f. Abandoned EEO Complaints. On pages 20-22 Payne attempts to re-litigate and rely upon abandoned EEO claims based on her prior non-selections. She is not permitted to do so and this Court lacks jurisdiction to consider such matters. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) ; Brown v. General Servs. Admin., 425 U.S. 820, 832-33 (1976). g. Payne fails to present specific evidence as to her qualifications. Payne claims that candidate Pyle was less qualified than her for the Computer Specialist Position (Agency Case No. 200P-2674) because Pyle only had 6 hours of computer credits and she had a "MCP." In addition to being a material misrepresentation of Pyles qualifications ( See DSOF ¶ 26, 27, 28 and Exhibits 18, Huckaby Declaration, Ponce Declaration) Payne offers no specific evidence of how or why she was better qualified. Her "MCP" card is hearsay and her self-serving opinions are not evidence. 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). 12

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Payne has not established that her 1998 "MCP" card was even current in 2000. Furthermore, this card 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 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. h. Ten year old email and 1997 "letter." Payne reliance on a ten year old email is likewise specious. Payne has failed to demonstrate any legitimate basis for injecting this nearly 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 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.) 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 timely remedial action by the employer. Li Li Manatt v. Bank of America, 339 F.3d 792, 798800 (9th Cir., 2003). 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 13

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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, 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). While on page 22 Payne injects a February 18, 1997 "letter" into this case, it is hearsay and lacks a proper foundation. Hal Roach Studios, Inc. v. Feiner & Co., 896 F.2d 1542, 1555 (9th Cir.1990). Furthermore, both documents lack a causational nexus to Payne's retaliation claims. The email is dated October 26, 1996 and the letter is dated February 17, 1997. Payne filed her informal complaint in Case No. 200P-2674 on December 1, 2000 and on October 31, 2001 in Case No. 200P-0644-2002100409. 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. III. Destruction of PVA Files. This subject was previously briefed by the defendant in Defendant's Response to Motion for Sanctions for Destruction of Evidence dated January 23, 2006. The defendant incorporates by reference that pleading and the associated exhibits all of which appear at Docket Entry # 73. Payne failure to exhaust her administrative remedies and abandon her claims based on these records is the sole and proximate cause of the absence of these records. Furthermore, none of the EEO claims she filed and then later abandoned, are relevant to her retaliation claims. Morgan, 536 U.S. at 113; Brown , 425 U.S. at 832-33. As these records do not go to the heart of the retaliation cases, Payne's arguments are without merit. . Hammond Packing Co. v. Ark., 212 U.S. 322, 349-54(1909); Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 806 (9th Cir.1982); Byrnie v. Town of Cromwell, 243 F.3d 93, 107-12 (2d Cir.2001); 14

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Hamilton v. Signature Flight Support Corp., 2005 WL 3481423(N.D.Cal. 2005);Advantacare Health Partners v. Access IV, 2004 WL 1837997, *6 (N.D.Cal., 2004); Nat'l Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557 (N.D.Cal.1987). The administrative files in Agency Case No. 200P-2674 (the "Non-Selection" case ) and Agency Case No. 200P-0644-2002100409 ( the "Transfer" case) were preserved and produced during the discovery phase of this litigation. Payne must be precluded from placing the 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. 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.) These documents were destroyed pursuant to routine document retention policies. The defendant could have preserved the non-selection documents, but for the failure of the plaintiff to trigger their retention as a "case" as defined by the Department of Veterans Affairs four (4) year record retention policies. As a result the normal two (2) year retention policy applied and they were lawfully destroyed. Payne's "unlawful motive" arguments on page 22 are specious. Tunnell v. Powell, 219 F. Supp.2d 230, 243(N.D.. 15

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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."). Payne is also estopped by laches from relying on these past events. 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). Payne 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. She offers nothing but righteous indignation and assumes no 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). While two of her prior EEO complaints raised these 22 non-selections, she abandoned those claims. In the absence of a timely filed lawsuit thereafter, which would require the retention of such documents, a federal agency would reasonably assume that any such documents could be destroyed in accordance with published records retention policies. This reliance is reasonable as the defendant is not placed on notice that an employee some years later would seek to rely upon such documents as " evidence" in a Title VII retaliation lawsuit. cf. Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 806-08 ( 8th Cir., 1979). In fact since plaintiff's unreasonable delay far exceeds the statutes of limitation governing federal employees, prejudice to the defendant may be presumed. Gruca v. U.S. Steel, 495 F2d 1252, 1260 (3rd Cir 1974).

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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

CERTIFICATE OF SERVICE I hereby certify that on July 14, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Rosval A. Patterson Attorney at Law Patterson & Associates, P.C. 777 East Thomas Road # 210 Phoenix, Arizona 85014 Attorney for plaintiff Dana Heck, Attorney Office of Regional Counsel Department of Veterans Affairs 650 East Indian School Road, Building 24 Phoenix, Arizona 85012-1839 3225 North Central Avenue, Room 305 Phoenix, Arizona 85012 s\ John R. Mayfield Office of the U.S. Attorney

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