Free Response to Motion - District Court of Arizona - Arizona

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Rosval A. Patterson, SBN 018872 Patterson & Associates, P.L.L.C. 777 East Thomas Road, Suite 210 Phoenix, Arizona 85014 Tel.: (602) 462-1004 E-mail: [email protected] Attorneys for the Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Martha Slaughter-Payne, Plaintiff, vs. ANTHONY PRINCIPI, SEC DEPT. OF VETERANS AFFAIRS AGENCY, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV03-2300PHXROS CONTROVERTED STATEMENT OF FACTS FOR PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

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Plaintiff, Martha Elizabeth Slaughter-Payne ("Liz" or "Plaintiff") submits her Controverted Statement of Facts in support of her opposition to Defendant's Motion for Summary Judgment. This case involves Defendant's failure to promote Liz to a Computer Specialist position because she is an African American Female. Additionally, this case involves Defendant's retaliatory actions regarding Plaintiff's involvement in protected activities. The Plaintiff has objected to and/or disputed 44 facts of the 61 facts offered by Defendant, or more than 72 percent. (See Dispute Table attached hereto as

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Exhibit 1). Contrary to Defendant's contention, the facts presented, disputed and
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undisputed provide ample basis for a jury to rule in favor of Liz on all allegations.
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BACKGROUND 1. Defendant has a total of 61 Statements of Facts; however the statements are numbered only to 55. Of the 61 Statements of Facts Plaintiff disputes and/or

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objects to 44. Defendant used 30, 31, 35, 36, 37 and 38 twice. The texts of the
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Statements of Facts are not the same, thereby causing confusion for Plaintiff in
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responding to Defendant's motion. (See Dispute Table attached hereto as
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Exhibit 1. See also Defendant's Statement of Facts ("DSOF") attached
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hereto as Exhibit 2.)
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2.
10 11

Of the 61 facts, Defendant neglected to use 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 17 and 35 in his motion. (See DSOF attached hereto as Exhibit 2.)

3.
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Defendant's facts 1, 21 and 51 are entirely unsubstantiated by evidence. (See DSOF attached hereto as Exhibit 2)

4.
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Defendant used the text of Plaintiff's Answers to Defendant's Request for Admission ("RFA") to make arguments asking the Court to deem the answers that were either denied or unknown by Plaintiff as admitted in facts 31, 32, 33,

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36, 37, 38, 39, 40, 41 and 52. (See DSOF attached hereto as Exhibit 2.)
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5.
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The Plaintiff answered Defendant's Request for Production in a timely manner on or about November 30, 2005. (See Plaintiffs Notice of Service to Defendant's Request for Admissions attached hereto as Exhibit 3)

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6.
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According to the Rule 16 Scheduling order.... F. All discovery, including answers to interrogatories, production of documents, depositions and requests to admit shall be completed by March 27, 2006. (See Amended Scheduling

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Order attached hereto as Exhibit 4).
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7.
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Defendant had from approximately November 30, 2005 through March 27, 2006 to dispute Plaintiff's answers but did not. (See DSOF attached hereto

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as Exhibit 2. Also see Plaintiff's Notice of service for the Answers to
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Defendants Request for Admissions attached hereto as Exhibit 3. Also see
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Amended Scheduling Order attached hereto as Exhibit 4.)
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8.
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On or about October 24, 1997 Liz updated her resume to include her work in Decentralize Hospital Computer Processing ("DHCP") and Personal Computer training. (See Resume Update, SF 172 attached hereto as Exhibit 5.)

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9.
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Among other things, Liz states at this time she is knowledgeable in installation, integration and troubleshooting of computers and computer systems. (See Resume Update, SF 172 attached hereto as Exhibit 5.)

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10.
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This update remained in Liz's Official Personnel Folder ("OPF"). (See Resume Update, SF 172 attached hereto as Exhibit 5.)

11.
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On or about September of 1996, Liz paid Ten Thousand Dollars ($10,000.00) to become a Microsoft Certified Professional. ("MCP"). (See Affidavit of Donna Tyson from EEO case 98-3542 attached hereto as Exhibit 6; 27:1-

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24. See also Microsoft Certified Professional Certificate attached hereto
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as Exhibit 7.)
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12.
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Liz completed the course on or about August of 1998. (See the Deposition of John Fears attached hereto as Exhibit 8; 97:18 ­ 98:2. Also see Microsoft Certified Professional Certificate attached hereto as Exhibit 7.)

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13.
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Liz put her MCP certification in her OPF (to assure that the certification was noticed). (See Microsoft Certified Professional Certificate attached hereto as Exhibit 7.)

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14.
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Liz applied and was qualified twenty two (22) times for the Computer Specialist at the GS-5/7/9 levels. (See List of Positions that Liz applied for attached hereto as Exhibit 9.)

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15.
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Liz helped organize a series of informational protests. (See the Deposition of John Fears attached hereto as Exhibit 8; 121:16-20.)

16.
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The first protest was held May 19, 2000. (See Arizona Informant Newspaper article dated May 24, 2000 attached hereto as Exhibit 10.)

17.
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The protesters marched in front of the VAMC for four (4) hours demanding an end to Defendant's discriminatory employment and promotion practices. (See Arizona Informant Newspaper article dated May 24, 2000 attached hereto

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as Exhibit 10.)
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18.
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Plaintiff received a letter from the Director, John Fears (hereinafter referred to as "Fears") requesting that the two parties sit down and discuss their issues and differences. (See the Deposition of John Fears attached hereto as Exhibit

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8; 122:6-12. See also Letter dated September 25, 2000 attached hereto as
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Exhibit 11.)
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19.
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Liz scheduled another protest for October 6, 2000. (See the Deposition of John Fears Attached hereto as Exhibit 8; 122:3-14. See also Memorandum dated September 25, 2000 attached hereto as Exhibit 12.)

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20.
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The protesters again marched in front of the VAMC for four (4) hours demanding an end to Defendant's discriminatory promotion practices. (See the Deposition of John Fears Attached hereto as Exhibit 8; 122:3-14. See also

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Memorandum dated September 25, 2000 attached hereto as Exhibit 12.)
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21.
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On or about September 11, 2000, Liz applied for the Open and Continuous Announcement ("OCA") 34-334-GS5/7/9 for Computer Specialist as a GS-9 level. (See Nancy Campbell's affidavit attached hereto as Exhibit 13; 7:4-

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22.)
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22.
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Grade 9 was the target for the specific position of Computer Specialist OCA 34-334-GS5/7/9. (See Nancy Campbell's affidavit attached hereto as Exhibit 13; 7:21-22.)

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23.
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When Liz applied, she listed "specialized experience" that she had used her computer skills from 1995 through 1998 and she was a Microsoft Certified Professional. (See Nancy Campbell's affidavit attached hereto as Exhibit

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13; 7:24 through 8:14. Also see MCP attached hereto as Exhibit 7.)
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24.
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Although there were six (6) names on the Merit Promotion Certificate, of the 6, four (4) candidates were white and two (2) candidates were black. (See Merit Promotion Certificate submitted as Defendants Exhibit 11 in his DSOF

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attached hereto as Exhibit 14.)
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25.
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The race was written on the Merit Promotion Certificate by Defendant. (See Merit Promotion Certificate submitted as Defendants Exhibit 11 in his DSOF attached hereto as Exhibit 14.)

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26.
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The only reason for Defendant to write in the race of the candidates is if the race is of issue. (See Merit Promotion Certificate submitted as Defendants Exhibit 11 in his DSOF attached hereto as Exhibit 14.)

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27.
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Instead of Liz, Richard Moore ("Mr. Moore"), the selecting official, selected Robert Pyle ("Mr. Pyle"). (See Complaint attached hereto as Exhibit 15; ¶ 22. See also Answer attached hereto as Exhibit 16; ¶ 22. See also Nancy

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Campbell's affidavit attached hereto as Exhibit 13; 8:16-20.)
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28.
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Mr. Pyle is a white male. (See Summary of Merit Promotion Activities attached hereto as Exhibit 17.)

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29.
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Liz was more qualified than Mr. Pyle as she was rated a GS-9 and Mr. Pyle was rated a GS-6. (See Nancy Campbell's affidavit attached hereto as Exhibit 13; 8:22 ­ 9:9. See also Merit Promotion Certificate submitted as

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Defendant's Exhibit 11, attached hereto as Exhibit 14)
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30.
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Mr. Pyle began his employment with the VAMC on or about January 2000, and had only worked for the VAMC for approximately nine (9) months when he was chosen for the Computer Specialist position. (See the Mr. Pyle's

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Optional Application for Employment attached hereto as Exhibit 18. Also
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See Standard Form 172 dated August 5, 2002 as proof of the date Mr. Pyle
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started at the VAMC, attached hereto as Exhibit 19; page 7) [THIS
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CSOF DISPUTES DSOF NUMBER 23 AS MR. PYLE DID NOT
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POSSESS THE EDUCATION AND EXPERIENCE NESSECARY AT A
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LEVEL GS-5 TO OBTAIN THE POSITION. DEFENDANT'S EXHIBIT
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9 INDICATES THAT A GS-5 IN THE POSITION MUST HAVE
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ATTAINED AND EXPERIENCE EQUALING 3 YEARS, ONE YEAR
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OF WHICH WAS EQUIVELENT TO A GS-4.]
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31.
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Mr. Pyle's highest education completed was high school. (See Mr. Pyle's Optional Application for Federal Employment attached hereto as Exhibit 18.) [THIS CSOF DISPUTES DSOF NUMBER 23 AS MR. PYLE DID

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NOT POSSESS THE EDUCATION AND EXPERIENCE NESSECARY
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AT A LEVEL GS-5 TO OBTAIN THE POSITION. DEFENDANT'S
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EXHIBIT 9 INDICATES THAT A GS-5 IN THE POSITION MUST
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HAVE ATTAINED AND EDUCATION EQUALING A 4 YEAR
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COURSE OF STUDY LEADING TO A BACHELORS DEGREE.]
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32.
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At the time of his selection for Computer Specialist, Mr. Pyle only possessed six (6) credit hours of computer education. (See Optional Application for Federal Employment of Mr. Pyle, attached hereto as Exhibit 18; page 2)

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[THIS CSOF DISPUTES DSOF NUMBER 23 AS MR. PYLE DID NOT
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POSSESS THE EDUCATION AND EXPERIENCE NESSECARY AT A
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LEVEL GS-5 TO OBTAIN THE POSITION. DEFENDANT'S EXHIBIT
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9 INDICATES THAT A GS-5 IN THE POSITION MUST HAVE
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ATTAINED AN EDUCATION EQUALING A 4 YEAR COURSE OF
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STUDY LEADING TO A BACHELORS DEGREE.]
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33.
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Defendant attempts to show the court that Mr. Pyle was more qualified by using documents that were not dated. (See Defendant's Exhibit 18 attached hereto as Exhibit 19; pages 1, 2, 3, 4, 8, 9, 10 (duplicate of page 8), 13

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(Duplicate of page 8), 14 (duplicate of page 9), 15 (duplicate of page 2)
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and 16 (near duplicate of page 3)) [THIS CSOF DISPUTES DSOF
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NUMBER 28 AS DEFENDANT MIXED DOCUMENTS THAT WERE
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UNDATED OR DATED IN 2002 IN WITH MR. PYLES RECORD OF
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MINIMUM QUALIFICATION AND APPLICATION FOR
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REASSIGNMENT IN AN ATTEMPT TO SHOW THE COURT MR.
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PYLE WAS MORE QUALIFIED FOR A POSITION FROM 2000.]
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34.
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Defendant used Mr. Pyle's documents from 2002 to attempt to show this court that Mr. Pyle was more qualified. (See Defendant's Exhibit 18 attached hereto as Exhibit 19; pages 7 and 12) [THIS CSOF DISPUTES DSOF

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NUMBER 28 AS DEFENDANT MIXED DOCUMENTS THAT WERE
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UNDATED OR DATED IN 2002 WITH MR. PYLES RECORD OF
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MINIMUM QUALIFICATION AND APPLICATION FOR

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REASSIGNMENT IN AN ATTEMPT TO SHOW THE COURT MR.
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PYLE WAS MORE QUALIFIED FOR A POSITION FROM 2000.]
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35.
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Robert Jones ("Mr. Jones") was not involved in the selection process and could not have changed the VAMC requirements. (See the Merit Promotion Certificate submitted as Defendant's Exhibit 11 attached hereto as Exhibit

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14.) [THIS DISPUTES DEFENDANTS DSOF NUMBER 25 BECAUSE
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THE DOCUMENT DEFENDANT ATTEMPTS TO SHOW THE COURT
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THAT MR. JONES WAS PART OF THE SELECTION PROCESS IS
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NOT DATED, NOR DOES IT STATE THE POSITION IN WHICH THE
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SELECTION IS BEING MADE. ]
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36.
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Liz was qualified for the position of Computer Specialist at a GS-9 level. (See the affidavit of Nancy Campbell attached hereto as Exhibit 13; 7:14 ­ 8:14.) [THIS CSOF DISPUTES DSOF NUMBER 26. DEFENDANT

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USES NANCY CAMPBELL'S DECLARATION IN HIS STATEMENT
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WHICH CLEARLY STATES THAT LIZ QUALIFIES AS A GS-9.
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ADDITIONALLY, DEFENDANT IS ATTEMPTING TO USE
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TESTIMONY FROM ALLEGED EXPERTS WHO DID NOT HAVE
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ANY DEALING WITH THE VAMC OR LIZ. THESE SO-CALLED
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WITNESSES ARE LOOKING AT PAPERWORK SUBMITTED BY
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DEFENDANT NOW, NOT WHEN THE INCIDENT HAPPENED.
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DEBORAH GARBE, THE EEO INVESTIGATOR FOR THIS CASE
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ASKED DEFENDANT FOR THE COMPARATIVE DATA FOUR (4)
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TIMES AND WAS NEVER PROVIDED WITH THE INFORMATION
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REQUESTED. FURTHERMORE, THE COMPARATIVE DATA WAS
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REQUESTED THROUGH DISCOVERY AND DEFENDANT STATED

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THAT THE DATA HAD BEEN DESTROYED. PLAINTIFF CAN NOT
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BE SURE THAT WHAT THE WITNESSES PONCE AND HUCKABY
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ARE REVIEWING CURRENTLY IS WHAT WAS REVIEWED TO
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MAKE THE DECISION TO HIRE MR. PYLE OVER LIZ. FINALLY,
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DEFENDANT USES EXHIBITS THAT EITHER DO NOT PROVE HIS
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STATEMENT (SEE DEFENDANT'S EXHIBITS 12 AND 13) OR THAT
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DO NOT HAVE ANYTHING TO DO WITH THE STATEMENT (SEE
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DEFENDANT'S EXHIBIT 27).]
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37.
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Liz was unaware of an error regarding her qualification as the notification that Liz received stated that she was qualified but wasn't selected, not that she was not qualified. (See Non-Selection Letter attached hereto as Exhibit 20. See

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also the Merit Promotion Certificate attached hereto as Exhibit 14.) [THIS
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CSOF DISPUTES DSOF NUMBER 27. DEFENDANT SUBMITS
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EXHIBITS THAT DO NOT PROVE ITS STATEMENT (SEE
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DEFENDANT'S EXHIBITS NUMBERED 12, 13, 14 AND 16).]
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38.
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Liz filed her formal EEO complaint on or about December 28, 2000, the case was investigated on or about April 2, 2001 and in the EEO case file there was no mention of an error in qualifying Liz as a GS-9 computer specialist. (See

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Non-Selection Letter attached hereto as Exhibit 20. See also the Merit
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Promotion Certificate Attached hereto as Exhibit 14.) [THIS CSOF
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DISPUTES DSOF NUMBER 27. LIZ RECEIVED A LETTER OF NON22

SELECTION, NOT A LETTER OF NON-QUALIFICATION. THIS IS
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THE FIRST PLAINTIFF HAS HEARD THAT DEFENDANT DID NOT
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CONSIDER HER QUALIFIED AT THE GS-9 LEVEL FOR
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COMPUTER SPECIALIST.]

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39.
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When Liz filed her EEO complaint, case number 200P-2674, the EEO investigator, Deborah Garbe asked the VAMC four (4) times for the comparative data used in determining the qualifications for the candidate's

4

referred for consideration for the position of Computer Specialist, GS-3445

5/7/9. (See the EEO Investigation Report attached hereto as Exhibit 21;
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page 3 and 16.)
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40.
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The VAMC refused to give Ms. Garbe the information. (See the email from Deborah Garbe dated May 10, 2001 attached hereto as Exhibit 22. See also the EEO Investigation Report attached hereto as Exhibit 21; page 3 and

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16.)
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41.
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Ms. Garbe threatened that the VA would be sanctioned for failing to provide the documents. (See the email from Deborah Garbe dated May 10, 2001 attached hereto as Exhibit 22.)

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42.
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Liz filed a complaint through Federal Court on November 21, 2003 and still Defendant makes no mention of the error in rating Liz as qualified for the GS-9 computer specialist position. (See Complaint attached hereto as Exhibit 15)

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43.
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In Plaintiffs interrogatory to Defendant, Plaintiff requests the comparative data for the candidates for the Computer Specialist position in which Defendant replied that responsive documents were being located and would be furnished

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under separate cover. (See Defendant's Answers to Plaintiff's
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Interrogatories attached hereto as Exhibit 23; Interrogatory 12)
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44.
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On or about June 16, 2005, according to Defendant, all comparative data has been destroyed. (See Supplemental Discovery Letter from Defendant dated June 16, 2005 attached hereto as Exhibit 24; page 15, number 19)

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45.
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Mauricio Ponce ("Ponce") and Donald E. Huckaby Jr.'s ("Huckaby") affidavits allege that Liz was not the best candidate, however, the documents that Ponce and Huckaby used to determine the most qualified candidate were

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not attached and Liz can not be sure the documents used by Ponce and
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Huckaby were the documents used in the actual selection process. (See the
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affidavit of Mauricio Ponce attached hereto as Exhibit 25; ¶ 13. Also see
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the affidavit of Donald Huckaby Jr. attached hereto as Exhibit 26; ¶ 9.)
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[THIS CSOF DISPUTES DEFENDANT'S DSOF NUMBER 26. THE
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DEFENDANT CLAIMS TO HAVE DESTROYED THE
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COMPARATIVE DATA, THEREFORE IT IS UNCLEAR AS TO
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WHAT DOCUMENTS WERE CONSIDERED BY PONCE OR
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HUCKABY.]
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46.
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Liz, in conjunction with the union scheduled another protest which was held on August 31, 2001. (See Letter regarding the Informational Protest from the Union dated July 27, 2001 attached hereto as Exhibit 27.)

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47.
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The protesters again marched in front of the VAMC for four (4) hours demanding an end to Defendant's discriminatory promotion practices. (See Letter regarding the Informational Protest from the Union dated July 27,

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2001 attached hereto as Exhibit 27.)
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48.
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On September 20, 2001, Liz received a Voluntary Separation Incentive Payment letter ("VSIP"). (See Complaint attached hereto as Exhibit 15; ¶ 31. See also Answer attached hereto as Exhibit 16; ¶ 31. See also see

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VSIP Memorandum dated September 20, 2001 attached hereto as Exhibit
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28.)
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49.
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Liz refused the VSIP. (See Defendant's Response to Plaintiff's Request for Production attached hereto as Exhibit 29; Request number 6. See also Defendants Answers to Plaintiff's Interrogatories attached hereto as

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Exhibit 23; Interrogatory 18 (f) and 19)
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50.
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Of the sixteen (16) employees that received the letter, eleven (11) employees within the Mental Health Behavioral Science Services declined such incentive letter offers. (See Defendant's Answers to Plaintiff's Interrogatories

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attached hereto as Exhibit 23; Interrogatory 18 (f) and 19. Also see the
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Arbitration Testimony of Laurel Van Haldren December 5, 2002 attached
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hereto as Exhibit 30; 234:2-5)
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51.
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Of the eleven employees that declined such incentive letter offers, Liz was the only employee that was threatened with a RIF. (See RIF Letter dated October 15, 2001 attached hereto as Exhibit 31.) [THIS CSOF DISPUTES

14

DSOF NUMBER 31. THE RIF WAS IN RETALIATION. ON
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SEPTEMBER 26, 2001, LIZ REFUSED A JOB OFFER; ON OCTOBER
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15, 2001, LIZ WAS GIVEN A ONE EMPLOYEE RIF NOTICE; ON
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OCTOBER 17, 2001, THE UNION REQUESTED THE RIGHT TO
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NEGOTIATE THE RIF; ON OCTOBER 22, 2001, THE VAMC
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REQUESTED RIF AUTHORITY; ON DECEMBER 3, 2001 THE VAMC
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WAS DENIED RIF AUTHORITY.]
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52.
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Of the eleven employees, all were put in a position similar or better than the position they had been in prior to the VSIP letter. (See the Arbitration Testimony of Laurel Van Haldren dated April 12, 2002 Attached hereto as

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Exhibit 32; 10:12 ­ 11:20. See also the Arbitration Testimony of Laurel
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Van Haldren December 5, 2002 Attached hereto as Exhibit 30; 236:5-8)

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53.
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Defendants decided, on October 15, 2001, to conduct a one employee Reduction in Force ("RIF"). (See Complaint attached hereto as Exhibit 15; ¶ 34 and 38. See also Answer attached hereto as Exhibit 16; ¶ 34 and 38.

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Also see Laurel Van Haldrens Arbitration Testimony of July 25, 2002
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attached hereto as Exhibit 33; 91:15-22.) [THIS CSOF DISPUTES DSOF
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NUMBER 31. THE RIF WAS IN RETALIATION. ON SEPTEMBER 26,
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2001, LIZ REFUSED A JOB OFFER; ON OCTOBER 15, 2001, LIZ WAS
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GIVEN A ONE EMPLOYEE RIF NOTICE; ON OCTOBER 17, 2001,
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THE UNION REQUESTED THE RIGHT TO NEGOTIATE THE RIF;
10

ON OCTOBER 22, 2001, THE VAMC REQUESTED RIF AUTHORITY;
11

ON DECEMBER 3, 2001 THE VAMC WAS DENIED RIF
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AUTHORITY.]
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54.
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On October 17, 2001, on behalf of Liz, AFGE requested the right to negotiate the RIF (See the Arbitration Testimony of Rafael Martinez on July 26, 2002 attached hereto as Exhibit 34; 198:8 ­ 199:6. See also Letter from

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Union dated October 17, 2001 attached hereto as Exhibit 35.)
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55.
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Defendants did not have RIF authority to reduce Liz's position. (See Complaint attached hereto as Exhibit 15; ¶ 35. See also Answer attached hereto as Exhibit 16; ¶ 35.) [THIS CSOF DISPUTES DSOF NUMBER 31.

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THE RIF WAS IN RETALIATION. ON SEPTEMBER 26, 2001, LIZ
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REFUSED A JOB OFFER; ON OCTOBER 15, 2001, LIZ WAS GIVEN A
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ONE EMPLOYEE RIF NOTICE; ON OCTOBER 17, 2001, THE UNION
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REQUESTED THE RIGHT TO NEGOTIATE THE RIF; ON
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OCTOBER 22, 2001, THE VAMC REQUESTED RIF AUTHORITY; ON
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DECEMBER 3, 2001 THE VAMC WAS DENIED RIF AUTHORITY.]

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56.
2 3

Under VHA Directive 96-005, RIF actions adversely affecting employees in centralized positions must be approved by Veterans Health Administration ("VHA") Headquarters. (See Defendant's Response to Plaintiff's Request

4

for Production attached hereto as Exhibit 29; Request 8. Also see VHA
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Directive 96-005 attached hereto as Exhibit 36.) [THIS CSOF DISPUTES
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DSOF 30. THE EXHIBIT USED IN DSOF 30 DID NOT STATE
7

ANYTHING REGARDING THAT THE VAMC HAD TO ADVISE THE
8

UNION PRIOR TO OBTAINING AUTHORITY FOR THE RIF.]
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57.
10 11

On October 22, 2001, five days after they delivered the RIF notice to Liz, VAMC requested authority for the RIF. (See Deposition of John Fears attached hereto as Exhibit 8; 57:3-8. See also Letter dated October 22,

12

2001 attached hereto as Exhibit 37.) [THIS CSOF DISPUTES DSOF 30.
13

THE EXHIBIT USED IN DSOF 30 DID NOT STATE ANYTHING
14

REGARDING THAT THE VAMC HAD TO ADVISE THE UNION
15

PRIOR TO OBTAINING AUTHORITY FOR THE RIF.]
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58.
17 18

On December 3, 2001, the VHA denied VAMC RIF Authority. (See Deposition of John Fears attached hereto as Exhibit 8; 58:17 ­ 59:9. See also Letter dated December 3, 2001 attached hereto as Exhibit 38.) [THIS

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CSOF DISPUTES DSOF NUMBER 31. THE RIF WAS IN
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RETALIATION. ON SEPTEMBER 26, 2001, LIZ REFUSED A JOB
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OFFER; ON OCTOBER 15, 2001, LIZ WAS GIVEN A ONE
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EMPLOYEE RIF NOTICE; ON OCTOBER 17, 2001, THE UNION
23

REQUESTED THE RIGHT TO NEGOTIATE THE RIF; ON
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OCTOBER 22, 2001, THE VAMC REQUESTED RIF AUTHORITY; ON
25

DECEMBER 3, 2001 THE VAMC WAS DENIED RIF AUTHORITY.]

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59.
2 3

One day after RIF authority was denied the VAMC, Liz was involuntarily put into her current position as Human Resources Specialist, which had no growth potential. (See Directed Reassignment Memorandum dated December 4,

4

2001 attached hereto as Exhibit 39) [THIS CSOF DISPUTES DSOF
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NUMBER 35. DEFENDANT TRIED TO RIF LIZ BUT WAS UNABLE
6

TO. THEN DEFENDANT FORCED LIZ INTO A POSITION SHE DID
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NOT WANT TO BE IN; A POSITION WITH NO GROWTH
8

POTENTIAL, AND IRONICALLY A POSITION THAT WAS
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PREVIOUSLY ABOLISHED. THE RIF AND DIRECT
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REASSIGNMENT WERE ADVERSE ACTIONS,]
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60.
12 13

The VAMC has approximately 2000 positions at the VA and although a variety of positions were available to be filled, Liz was only offered one position. (See Arbitration Testimony of Rafael Martinez dated December 5, 2002

14

attached hereto as Exhibit 40; 341:1 ­ 12)
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61.
16 17

Liz's supervisor Rafael Martinez ("Mr. Martinez") stated that Liz could only have applied for jobs at a lower grade. (See Arbitration Testimony of Rafael Martinez dated December 5, 2002 attached hereto as Exhibit 40; 341:6 -

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12)
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62.
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Contrary to good performance awards and evaluations Mr. Martinez felt Liz was only qualified for housekeeping aid jobs; food service work; and secretarial work. (See Arbitration Testimony of Rafael Martinez dated

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December 5, 2002 attached hereto as Exhibit 40; 341:11-14)
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63.
24 25

At the time Liz was moved to her current position, she became ineligible to represent fellow employees in EEO cases. (See the Arbitration Testimony of Randy Brumm of July 25, 2002 attached hereto as Exhibit 41; 159:4 ­ 10.

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See also Memorandum dated April 12, 2002 attached hereto as Exhibit 42.
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See also E-mail to Liz from Martin Lieberman dated April 16, 2002
3

attached hereto as Exhibit 43.)
4

64.
5 6

Excluding Liz from engaging in protected activities work to Defendant's advantage as Liz was a strong advocate for minorities and employees of the VAMC. (See the Arbitration Testimony of Randy Brumm of July 25, 2002

7

attached hereto as Exhibit 41; 159:11 ­ 18)
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65.
9 10

Liz can no longer engage in protected activities, which affected not only Liz, but the entire bargaining unit. (See the Arbitration Testimony of Randy Brumm of July 25, 2002 attached hereto as Exhibit 41; 132:21 - 23)

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66.
12 13

Liz was forced into her current position which was previously abolished. (See the Arbitration Testimony of Randy Brumm of July 25, 2002 attached hereto as Exhibit 41; 151:12 ­ 152:14)

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67.
15 16

The former employee who held Liz's job received a buyout. (See the Arbitration Testimony of Randy Brumm of July 25, 2002 attached hereto as Exhibit 41; 151:25 ­ 152:19)

17

68.
18 19

Under VA regulation the only reason to give an employee a buyout is to abolish the position. (See the Arbitration Testimony of Randy Brumm of July 25, 2002 attached hereto as Exhibit 41; 151:25 ­ 152:19. Also see the

20

Arbitration testimony of John Fears dated December 11, 2002 attached
21

hereto as Exhibit 44; 426:18 ­ 25. Also see Email regarding VHA
22

Restructuring dated August 15, 2001 attached hereto as Exhibit 45;
23

number 3)
24

69.
25

Defendant's claim they decided to abolish Liz's position in the Compensated Workers Therapy Department ("CWT") due to budgetary necessity. (See

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1

Defendant Answers to Plaintiff's Interrogatories attached hereto as
2

Exhibit 23; Interrogatory 18)
3

70.
4 5

As of July 12, 2001, Mental Health and Behavioral Services were actively recruiting for various positions. (See Announcement #2001-141B1 attached hereto as Exhibit 46.)

6

71.
7 8

The CWT Program was not dissolved until on or about July 2002. (See the Arbitration Testimony of Randy Brumm of July 25, 2002 attached hereto as Exhibit 41; 111:19 ­ 112:1. Also see the Arbitration Testimony of Carol

9

Gray of July 25, 2002 attached hereto as Exhibit 47; 177:4-15. Also see the
10

Memorandum dated January 17, 2003 attached hereto as Exhibit 48)
11

72.
12 13

There is an employee that has been performing Liz's job description since the VSIP, and the functions of the Liz's position continue to be performed to this date. (See E-mail to Jo Jackson attached hereto as Exhibit 49)

14

73.
15 16

Liz qualified for the GS-11 Human Resources Management Specialist position based on her duties as the Vocational Rehabilitation Specialist in which she was responsible for job placement at the VA from September 10, 1999 though

17

December 31, 2001. (See Vacancy Announcement for 2001-215C1
18

attached hereto as Exhibit 50. See also the Vocational Rehabilitation
19

Specialist position description attached hereto as Exhibit 51) [THIS CSOF
20

DISPUTES DSOF 49. LIZ QUALIFIED FOR THE POSITION BASED
21

ON HER DUTIES AS THE VOCATIONAL REHABILITATION
22

SPECIALIST IN WHICH SHE WAS RESPONSIBLE FOR JOB
23

PLACEMENT AT THE VA FROM SEPTEMBER 10, 1999 THROUGH
24

DECEMBER 31, 2001. IN HER POSITION LIZ WAS RESPONSIBLE
25

FOR PLACEMENT, PAYROLL, COUNSELING, DEVELOPMENT,

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1

RECRUITMENT AND OTHER DUTIES REQUIRED FOR THE GS-11
2

HUMAN RESOURCES MANAGEMENT SPECIALIST POSITION.
3

LIZ WOULD DETERMINE INDIVIDUALS QUALIFICATIONS AND
4

MEDICAL ABILITIES IN ORDER TO FILL A POSITION. LIZ
5

DETERMINED IF INDIVIDUALS NEEDED ADDITION EDUCATION,
6

INTERVIEWING, COMPUTER, WRITING OR COMMUNICATION
7

SKILLS. FURTHERMORE, ACCORDING TO THE QUALIFICATION
8

STANDARDS FOR GENERAL SCHEDULE POSITION, AT GS-11,
9

THE ONLY SPECIALIZED EXPERIENCE REQUIRED WAS ONE (1)
10

YEAR EQUIVELENT TO AT LEAST GS-9. (SEE PLAINTIFF'S
11

EXHIBIT 52 WHICH IS DEFENDANT'S EXHIBIT 29.) THERE IS NO
12

MENTION THAT THE POSITION REQUIRED ONE YEAR
13

SPECIALIZED EXPERIENCE IN FEDERAL HUMAN RESOURCE
14

FUNCTIONS.]
15

74.
16 17

The Vocational Rehabilitation Specialist GS-9 position gave Plaintiff the one year of specialized experience in Federal Services. (See Vocational Rehabilitation Specialist Position Description attached hereto as Exhibit

18

51. See also Qualification Standards for General Schedule Positions
19

attached hereto as Exhibit 52; page 2.) [THIS CSOF DISPUTES DSOF 49.
20

ACCORDING TO THE QUALIFICATION STANDARDS FOR
21

GENERAL SCHEDULE POSITION, AT GS-11, THE ONLY
22

SPECIALIZED EXPERIENCE REQUIRED WAS ONE (1) YEAR
23

EQUIVELENT TO AT LEAST GS-9. (SEE PLAINTIFF'S EXHIBIT 52
24

WHICH IS DEFENDANT'S EXHIBIT 29.) THERE IS NO MENTION
25

THAT THE POSITION REQUIRED ONE YEAR SPECIALIZED

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1

EXPERIENCE IN FEDERAL HUMAN RESOURCE FUNCTIONS AS
2

DEFENDANT CLAIMS.]
3

75.
4 5

In the CWT Plaintiff would determine individual's qualifications and medical abilities in order to fill a position. (See Vocational Rehabilitation Specialist Position Description attached hereto as Exhibit 51.)

6

76.
7 8

Plaintiff determined if individuals needed additional education, interviewing, computer, writing and communication skills. (See Vocational Rehabilitation Specialist Position Description attached hereto as Exhibit 51.)

9

77.
10 11

Liz had used the same experience as stated above for the various positions in Human Resources as defined under the Qualification Standards on prior occasions and each time the VA had determined that she met the qualifications

12

for GS-11 Human Resources Management Specialist position. (See
13

Memorandums regarding the Positions in which Liz applied attached
14

hereto as Exhibits 54 through 60.) [THIS CSOF DISPUTES DSOF 49.
15

LIZ WAS QUALIFIED FOR THE POSITION OF HUMAN RESOURCE
16

MANAGEMENT SPECIALIST GS-11. EXHIBITS 54 THOUGH 60
17

SHOW THAT LIZ WAS QUALIFIED FOR THE SAME OR VERY
18

SIMILAR POSITIONS IN WHICH THE QUALIFICATION
19

STANDARDS ARE THE SAME. LIZ WAS QUALIFIED AS A GS-11 AS
20

EARLY AS AUGUST 31, 1998.]
21

78.
22 23

The Qualification Standards for General Schedule Position, at GS-11, the only specialized experience required was 1 year equivalent to at least GS-9. (See Qualification Standards for General Schedule Positions attached hereto as

24

Exhibit 52; page 2.) [THIS CSOF DISPUTES DSOF 49. ACCORDING
25

TO THE QUALIFICATION STANDARDS FOR GENERAL

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1

SCHEDULE POSITIONS, AT GS-11 THE ONLY SPECIALIZED
2

EXPERIENCE REQUIRED WAS ONE (1) YEAR EQUIVALENT TO
3

AT LEAST GS-9 (SEE PLAINTIFF'S EXHIBIT 52 WHICH IS
4

DEFENDANT'S EXHIBIT 29.) THERE IS NO MENTION THAT THE
5

POSITION REQUIRED 1 YEAR SPECIALIZED EXPERIENCE IN
6

FEDERAL HUMAN RESOURCE FUNCTIONS AS DEFENDANT
7

CLAIMS.]
8

79.
9 10

Upon entering into the Human resource position Liz was told orally and in writing that in addition to logging in and out she must directly report her supervisor or his designee and tell them where she was going. (See

11

Memorandum dated September 10, 2004 attached hereto as Exhibit 61;
12

number 3) [THIS CSOF DISPUTES DSOF 54. PLAINTIFF
13

MAINTAINS THAT NO LOG-IN AND LOG-OUT REQUIREMENTS
14

WERE IN PLACE WHEN SHE PREVIOUSLY WORKED IN HUMAN
15

RESOUCES; HOWEVER THE REQUIREMENTS WERE PUT IN
16

PLACE AFTER HER DIRECTED REASSIGNMENT.
17

FURTHERMORE, SHE WAS NOT ONLY REQUIRED TO LOG IN
18

AND OUT BUT TO ALSO NOTIFY HER IMMEDIATE SUPERVISOR
19

AS TO WHERE SHE WAS GOING, FOR WHAT PURPOSE AND THE
20

DURATION OF HER ABSENCE. NO OTHER EMPLOYEE WAS
21

REQUIRED TO LOG IN AND OUT AND NOTIFY A SUPERVISOR AS
22

TO THE EMPLOYEE'S WHEREABOUTS.]
23 24 25

..... ..... .....

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Dated this 30th day of June, 2006 Patterson & Associates, P.L.L.C. s/Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

CERTIFICATE OF SERVICE I hereby certify that on the 30th day of June, 2006, I electronically transmitted that attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing for the following CM/ECF registrants: [email protected] [email protected] and a copy of this document was provided by United States mail to: The Honorable Judge Roslyn Silver United States District Court 401 West Washington Courtroom 604 Phoenix, AZ 85003

By

s/Stephanie Coulter

Case 2:03-cv-02300-ROS

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