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] Attorney for the Plaintiff UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA Martha Slaughter-Payne, Plaintiff, vs. ANTHONY PRINCIPI, SEC DEPT. OF VETERANS AFFAIRS AGENCY, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV03-2300 PHX ROS

PLAINTIFF'S RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Martha Elizabeth Slaughter-Payne (hereinafter referred to as "Liz") submits her response to defendants Motion for Summary Judgment. This motion is supported by the following Memorandum of Points and Authorities filed concurrently herewith. DATED this 30th day of June, 2006 Patterson & Associates, P.L.L.C. s/ Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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MEMORANDUM OF POINTS AND AUTHORTIES I. FACTS:

Defendant's Statements of Facts ("DSOF") has a total of sixty-one (61), however the statements are numbered only to fifty-five (55) of which 44 facts were objected to and/or disputed by Plaintiff. (See Exhibit 1 of Plaintiff's Statement of Facts). (CSOF ¶ 1) Defendant used numbers 30, 31, 35, 36, 37 and 38 twice. (CSOF ¶ 1). However, the text of those numbers is not the same. (CSOF ¶ 1) Defendant did not use Statement of Fact's 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 17 and 35 in his motion. (CSOF ¶ 2) Of the 61 facts used by Defendant, Defendant used the text of Plaintiff's answers to Defendant's Request for Admission ("RFA") to make arguments asking the Court to deem Plaintiff's answers as admitted. (CSOF ¶ 4) The facts in which this occurred involve Defendants Statements of Facts numbered 31, 32, 33, 36, 37, 38, 39, 40, 41 and 52. (CSOF ¶ 4). Additionally, in Defendant's Exhibit 18, which is Plaintiff's Exhibit 19, is a document that was created in 2002. (CSOF ¶ 34). On or about October 24, 1997 Liz updated her resume to include her work in Decentralize Hospital Computer Processing (DHCP) and Personal Computer training. (CSOF ¶ 8) Among other things, Liz stated at this time she is knowledgeable in installation, integration and troubleshooting of computers and computer systems. (CSOF ¶ 9) This update remained in Liz's official personnel file ("OPF"). (CSOF ¶ 10). On or about September of 1996, Liz paid Ten Thousand Dollars ($10,000.00) to become a Microsoft Certified Professional ("MCP"). (CSOF ¶ 11) Liz completed the course on or about August of 1998. (CSOF ¶ 12) Liz put her MCP certification in her OPF (to

assure that professional certification was noticed). (CSOF ¶ 13) Liz applied and was qualified twenty two (22) times for the Computer Specialist at the GS-5/7/9 levels. (CSOF ¶ 14). Throughout Liz's career with the Carl T. Hayden Veterans Administration Medical Center, ("VAMC"), Liz helped organize a series of informational protests.
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(CSOF ¶ 15) The first protest was held May 19, 2000. (CSOF ¶ 16) The protesters marched in front of the VAMC for four (4) hours demanding an end to Defendants' discriminatory employment and promotion practices. (CSOF ¶ 17) Plaintiff received a letter from Director, John Fears ("Mr. Fears") requesting that the two parties sit down and discuss their issues and differences. (CSOF ¶ 18) As there was no resolution, Liz scheduled another protest for October 6, 2000. (CSOF ¶ 19) The protesters again marched in front of the VAMC for four (4) hours demanding an end to Defendants' discriminatory promotion practices. (CSOF ¶ 20) 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. (CSOF ¶ 21) Grade 9 was the target for the specific position of Computer Specialist OCA 34-334-GS5/7/9. (CSOF ¶ 22) When Liz applied, she listed "specialized experience". Liz used her computer skills from 1995 through 1998 and she was a Microsoft Certified Professional. (CSOF ¶ 23) 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. (CSOF ¶ 24) The race was written on the Merit Promotion Certificate by Defendant. (CSOF ¶ 25) The only reason to write the race on the Merit Promotion Certificate is if the race of the candidate is of issue. (CSOF ¶ 26) Instead of Liz, Richard Moore ("Mr. Moore"), the selecting official, selected Robert Pyle. (CSOF ¶ 27) Mr. Pyle is a white male. (CSOF ¶ 28) Liz was more qualified than Mr. Pyle as Liz was rated a GS-9 and Mr. Pyle was rated a GS-6. (CSOF ¶ 29) Robert 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. (CSOF ¶ 30) At the time of his selection, Mr. Pyle's highest education completed was high school and only possessed six (6) credit hours of computer education. (CSOF ¶¶ 31 and 32)

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Liz filed her formal EEO complaint on December 28, 2000 and the case was investigated on April 2, 2001. (CSOF ¶ 38) In the EEO case file there was no mention of an error in qualifying Liz as a GS-9 computer specialist. (CSOF ¶ 38) 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 referred for consideration for the position of Computer Specialist, GS-344-5/7/9. (CSOF ¶ 39) The VAMC refused to give Ms. Garbe the information. (CSOF ¶ 40). Ms. Garbe threatened that the VA would be sanctioned for failing to provide the documents. (CSOF ¶ 41) Liz in conjunction with the Union scheduled another protest which was held on August 31, 2001. (CSOF ¶ 46) The protesters again marched in front of the VAMC for four (4) hours demanding an end to Defendants' discriminatory promotion practices. (CSOF ¶ 47) On September 20, 2001, Liz received a Voluntary Separation Incentive Payment letter ("VSIP.") (CSOF ¶ 48) Liz refused the VSIP. (CSOF ¶ 49) Of the sixteen (16) employees that received the letter, eleven (11) employees within the Mental Health Behavioral Science Services declined such incentive letter offers. (CSOF ¶ 50) Of the eleven employees that declined such incentive letter offers, Liz was the only employee that was threatened with a Reduction in Force ("RIF"). (CSOF ¶ 51) In fact, 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. (CSOF ¶ 52) October 15, 2001, Defendants conducted a one employee RIF. (CSOF ¶ 53) On October 17, 2001, on behalf of Liz, AFGE requested the right to negotiate the RIF. (CSOF ¶ 54) It was discovered that Defendants did not have RIF authority to reduce Liz's position. (CSOF ¶ 55) Under VHA Directive 96-005, RIF actions adversely affecting employees in centralized positions must be approved by Veterans Health Administration (VHA) Headquarters. (CSOF ¶ 56) In fact, on October 22, 2001, five
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days after they delivered the RIF notice to Liz VAMC requested authority for the RIF. (CSOF ¶ 57) On December 3, 2001, the VHA denied VAMC RIF Authority. (CSOF ¶ 58) Only one day after RIF authority was denied the VAMC, Liz was then involuntarily put into her current position of Human Resources Specialist, a position with no growth potential. (CSOF ¶ 59). Even though the VAMC had approximately 2000 positions at the facility, and although a variety of positions were available to be filled, Liz was only offered one position. (CSOF ¶ 60) Liz's supervisor Rafael Martinez ("Mr. Martinez") stated that Liz could only have applied for jobs at a lower grade. (CSOF ¶ 61) Contrary to good performance awards and evaluations Mr. Martinez felt Liz was only qualified for housekeeping aid jobs; food service work; and secretarial work. (CSOF ¶ 62) In Liz's new position, she became ineligible to represent fellow employees in EEO cases. (CSOF ¶ 63). Excluding Liz from engaging in protected activities work is to Defendants advantage as Liz was a strong advocate for minorities and employees of VAMC. (CSOF ¶ 64) Liz can no longer engage in protected activities which affected not only Liz, but the entire bargaining unit. (CSOF ¶ 65). The Human Resource position in which Liz was forced into had been previously abolished. (CSOF ¶ 66) Prior to Liz entering into the position, the former employee who held it received a buyout. (CSOF ¶ 67) Under VA regulation the only reason to give an employee a buyout is to abolish the position. (CSOF ¶ 68). Defendant claimed Liz's position in the Compensated Workers Therapy Program ("CWT") was abolished due to budgetary necessity. (CSOF ¶ 69) However, as of July 12, 2001, Mental Health and Behavioral Services were actively recruiting for various positions. (CSOF ¶ 70). In fact, Liz's position in the CWT Program which was to be abolished was not dissolved until on or about July 2002. (CSOF ¶ 71) There is an employee that has been performing Liz's job description since the VSIP, and the function of Liz's position continues to be performed to this date. (CSOF ¶ 72).
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II.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper where no genuine issue as to any material fact exists. FED.R.CIV.P. 56(c); Celotex Corp. v. Sutrett, 477 U.S. 3 17,322 (1986). The initial burden rests on the moving party to point out the absence of any genuine issue of material fact. FED.R.CIV.P. 56 (a); Celofex, 477 U.S. at 323. The Court must determine whether, viewing the evidence and the inferences from that evidence in the light most favorable to the nonmoving party, there remains any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Proctor v. Consolidated Freightways Corp., 795 F.2d 1472, 1477 (9th Cir. 1986); Fed.R.Civ.P.56(c). Yartzoff v. Thomas, 809 F.2d 1371, 1373 (9th Cir. 1987). III. ARGUMENT A. DEFENDANT'S STATEMENT OF FACTS, AFFIDAVITS MOTION FOR SUMMARY JUDGMENT MUST BE STRICKEN. i. Defendant's Statement of Facts AND

Several of Defendant's Statement of Facts must be struck because they violate L. R. Civ. 56.1(a). Local Rule 56.1(a) requires that a separate concise statement of material facts in support of its motion for summary judgment be filed. The specific facts shall be set forth in serial fashion and not in narrative form. The separate concise statement should be set forth in numbered paragraphs as to each fact, and must refer to the specific portion of the record where the fact is found. L. R. Civ. 56.1(a). Defendant's Statement of Facts numbered 1, 7, 16, 20, 23, 24, 26, 31, 32, 33, 34, 35, 35, 36, 37, 38, 39, 40, 41, 42, 49, 52 and 53 must be stuck because they are not separate concise statements and are in narrative form which is prohibited. L. R. Civ. 56.1(a). Essentially, Defendant Statement of Facts numbered 31, 32, 33, 36, 37, 38, 39, 40, 41 and 52 is an argument to the court requesting that Plaintiff's Answers to Defendant's Request for Admissions become admitted. (CSOF ¶ 4) This is clearly an end
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run attempt by Defendant to bring forward a discovery dispute in violation of rule 16 scheduling order (CSOF ¶ 6) The Plaintiff answered Defendant's Request for Admissions in a timely manner on or about November 30, 2005. (CSOF ¶ 5) According to the Rule 16 Scheduling order.... If parties cannot reach a resolution of discovery disputes they are directed to arrange a conference call with the Court to resolve the disputes. No conference was scheduled. The reasoning behind this requirement is to facilitate early intervention against costly motions and delay. Defendant had from

approximately November 30, 2005 through March 27, 2006, the end of the discovery period to dispute Plaintiff's answers, yet Defendant did not. (CSOF ¶ 7) Defendant's Statement of Facts numbered 30, 31, 35, 36, 37 and 38 must be struck because the numbers are used twice. (CSOF ¶ 1) Local rule 56.1(a) requires that the specific facts shall be set forth in serial fashion. However, the text in those Statements of Fact numbered 30, 31, 35, 36, 37 and 38 is not the same, thereby causing confusion for Plaintiff in disputing Defendant's Statement of Facts and in responding to Defendant's motion. (CSOF ¶ 1). Defendant's Statement of Facts numbered 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 17 and 35 (CSOF ¶ 2) must be struck because they are not used in Defendant's motion. Under Local Rule 56.1(a), a material fact supports the motion for summary judgment because Defendant failed to use these facts they can only be considered nonmaterial facts and no weight can be given to them. Defendant's Statement of Facts number 28 is not admissible. Defendant's Statement of Facts number 28 refers to Defendant's Exhibit 18, which is Plaintiff's Exhibit 19 that has documents that were created in 2002. (CSOF ¶ 34). Defendant's Exhibit 18 is hearsay and inadmissible. Defendant's Statement of Facts numbered 1, 21 and 51 (CSOF ¶ 3) must be struck
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because they fail to refer to the specific portion of the record where the facts are found in violation of L. R. Civ. 56.1(a). In closing, Defendant's Statement of Facts numbered 1, 2, 3, 4, 5, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 20, 21, 23, 24, 26, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 49, 51, 52 and 53 must be struck because they violated Local rule 56.1(a) ii. The Affidavits of Ponce and Huckaby Must be Struck Because They are not Based on Personal Knowledge in Violation of Federal Rule of Evidence 701

Plaintiff moves to strike the affidavits of Mauricio G. Ponce ("Ponce") and Donald
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Huckaby, Jr. ("Huckaby) noting that the affidavits do not purport nor are they based upon
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personal knowledge. Ponce's and Huckaby's expert opinion is based upon documents
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that were not used during the selection process. In fact, Ponce's and Huckaby's affidavits
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are based totally on third party hearsay. Someone unknown provided them with the
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information, which they used to make their expert opinion. It is Plaintiff's contention
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that both Ponce and Huckaby used documents developed after the selection process in
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determining Mr. Pyle's skills. (CSOF ¶ ¶ 33 and 34) For instance, when Liz filed her
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EEO complaint, case number 200P-2674, the EEO investigator, Deborah Garbe asked the
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VAMC four (4) times for the comparative data used in determining the qualifications for
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the candidate's referred for consideration for the position of Computer Specialist, GS20

344-5/7/9. (CSOF ¶ 39) The VAMC refused to give Ms. Garbe the information. (CSOF
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¶ 40). On May 10, 2001, Ms. Garbe threatened that the VA would be sanctioned for
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failing to provide the documents. (CSOF ¶ 41). Liz filed a civil action in Federal Court
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on November 21, 2003. (CSOF ¶ 42) Plaintiff requested the information through
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discovery in that case. (CSOF ¶ 43) Plaintiff was told by Defendant that the comparative
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information had been destroyed. (CSOF ¶ 44) If Ms. Garbe and Plaintiff were unable to
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attain the comparative information in which the selection was made, how was it that
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Ponce and Huckaby in 2006 can conduct a comparative which determines that Mr. Pyle was the best candidate for the position of Computer Specialist? Their affidavits fail to fully disclose the exact documents used for their expert comparative analysis. (CSOF ¶ 45) Their comparative analysis relies on undated documents and documents from 2002! (CSOF ¶ ¶ 33 and 34). With those documents Defendant attempts to persuade the court that Mr. Pyle was more qualified. Why would Defendant think that the court would allow and accept into evidence a comparative analysis done by Ponce and Huckaby when the EEO and the Plaintiff were unable to retrieve that exact information from the Defendant? In order to satisfy the requirement of Rule 56(e), an affidavit must be based upon personal knowledge, set forth facts that would be admissible in evidence, and show that the affiant is competent to testify to the matters stated therein. Ponce's and Huckaby's affidavits are defective in all of these respects at least insofar as they refer by inadmissible evidence to the job histories and classifications used for their analysis of Liz and Mr. Pyle. Allen v. IT&T, 164 F.R.D. 489, 491-492 (D. Ariz. 1995). It is not enough that an affiant assert that he or she has personal knowledge of the facts recited; the facts themselves must show that they are matters known to the affiant personally and are not based upon hearsay or upon "information and belief." E.g., Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir. 1978). Ponce's and Huckaby's affidavits fail to satisfy the requirement of Rule 56(e). iii. The Affidavits of Ponce and Huckaby Must be Struck Because They are Hearsay in Violation of Federal Rule of Evidence 801

The testimony of Ponce and Huckaby's affidavits must be excluded because their testimony is based on double and perhaps triple-hearsay. Their opinions are based on statements and information of others. Ponce and Huckaby's affidavits state that they are reviewing a list of document. However, they fail to state how they received the
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documents or where they came from. (CSOF ¶ 45) There affidavit's fails to acknowledge any personal knowledge about Liz or the law suit. Under FED. R. EVID. 801(d) (2) (D) Huckaby and Ponce's testimony will not be admissible because they do not have personal knowledge of the facts that they will relate and use as a basis for their expert opinions. Mauricio G. Ponce and Donald Huckaby affidavits must be excluded. iv. Large Portions of Defendant's Summary Judgment Motion Must be Struck Because They Violate Fed. R. Civ. P. 56(C) and L. R. Civ. R. 7.1(B).

Sections III, IV, V, and VI of Defendant's Motion for Summary Judgment must be
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struck because they violated FED.R.CIV.P. 56(c). A party seeking summary judgment
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bears the initial responsibility of informing the court of the basis of its motion, and
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identifying those portions of "pleadings, depositions, answers to interrogatories, and
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admissions on file, together with the affidavits, if any, which it believes demonstrates the
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absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 325,
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91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting FED.R.CIV.P. 56(c)). The moving party
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must do more than simply show that there is some metaphysical doubt as to the material
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facts. Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 586, 89 L. Ed. 2d
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538, 106 S. Ct. 1348 (1986). In sections III, IV, V, and VI, Defendant has failed to cite
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to the record or to any affidavit, which will support the absence of a genuine issue of
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material fact. Essentially, Defendant merely relies upon conclusionary statements of the
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attorney. Conclusionary assertions are not accepted as facts. Lombard's Inc. v. Prince
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Manufacturing, Inc., 753 F.2d 974, 975 (11th Cir. 1985), cert. denied, 474 U.S. 1082, 106
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S. Ct. 851, 88 L. Ed. 2d 892 (1986); Kaiser Aluminum & Chemical Sales, Inc. v.
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Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105, 74
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L. Ed. 2d 953, 103 S. Ct. 729 (1983).
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Additionally, Defendant's entire motion must be struck because it is in violation of L. R. Civ. 7.1(b). Local Rule 7.1 prohibits the font size of a motion to be no smaller than 13 point. In Defendant's motion, Defendant used a type font similar to "Times New Roman 12," which contains twelve characters per inch. This results in a minuscule type size which is much more difficult to read than the required type size. It is clear that Defendant is utilizing the minuscule type size for the sole purpose of circumventing the courts page limits on opening briefs. Had Defendant used the correct type size for the motion, they would have undoubtedly exceeded the seventeen page limit by several pages. Courts routinely warn litigants and attorneys not to manipulate the briefing format to evade page limits. Kano v. National Consumer, Co-op. Bank, 22 F.3d 899 (9th Cir. 1994) (imposing $ 1,500 sanction on party who violated form of brief rules through improper line spacing and excessive footnotes); In re MacIntyre, 181 B.R. 420, 421-22 (9th Cir. BAP 1995), aff'd, 77 F.3d 489 (9th Cir. 1996) (sanctioning counsel $ 250 for using "minuscule" type and 26 footnotes in apparent attempt to circumvent page limit for briefing); The violation in this case is particularly inexcusable given the repeated filing by Plaintiff requesting a sanction on three prior incidents. If Defendant required additional pages for their motion, they could have sought (1) to stipulate with Plaintiff for additional pages, or (2) to file an ex parte application showing good cause why they should be permitted to exceed the 17-page limitation. Fleming v. County of Kane, 855 F.2d 496, 498 (7th Cir. 1988) ("Litigants who file briefs [exceeding page limitations] without seeking leave of court should beware. It is more difficult to obtain forgiveness than permission."). Defendant elected neither of these options. Instead, they continue to violate the local rule after Plaintiff has written three prior motions to strike based on the same rule violation. B. DEFENDANT MUST BE SANCTIONED FOR VIOLATING THE LOCAL RULES OF THE COURT IN THEIR STATEMENT OF FACTS
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AND THEIR SUMMARY JUDGMENT MOTION. The court should sanction the Defendant for violating the local rules subject to limits upon the court's inherent power and statutory authority. See Miranda v. Southern Pac. Transp. Co., 710 F.2d 516, 520-21 (9th Cir. 1983). These limits require at a minimum that the sanctions order be supported with an explicit finding of an attorney's bad faith, and that the misconduct amount to more than a negligent transgression of local rules. See Zambrano v. City of Tustin, 885 F.2d 1473, 1478, 1480 (9th Cir. 1989). In this case, Defendant's actions are in bad faith. If Defendant required additional pages for its statement, it could have (1) requested a stipulation from Plaintiff for additional pages, (2) filed an ex-parte application showing good cause why it should be permitted to exceed the page limitation or (3) arranged a conference call with the Court to resolve the dispute. Defendant ignored all of these options. Instead, it violated the court's order by submitting a motion in a font size smaller then 13 point. Defendant's Statement of Facts numbered 31, 32, 33, 36, 37, 38, 39, 40, 41 and 52 contained pure arguments disguised as a statement of fact. (CSOF ¶ 4) The court should sanction the Defendant and award attorney fees and costs to Plaintiff especially since this is Plaintiff's third request for sanctions involving the same actions. C. A GENUINE ISSUE OF MATERIAL FACT EXISTS BASED ON DEFEDANT'S OWN DOCUMENTS AS TO WHETHER PYLE IS MORE QUALIFIED THAN LIZ. There is a genuine material issue of fact regarding Mr. Pyle's selection over Liz. Defendant relies on the affidavits of Ponce, Huckaby and Jones as evidence that Pyle was more qualified than Liz. Remember, Ponce and Huckaby's expert analysis was conducted years after the selection occurred using documents that were not in existence in 2000, which clearly violates FED. R. EVID. 801(d) (2) (B). Documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary
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judgment." Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). Additionally, Jones was not involved in the selection process and could not have changed the VAMC requirements. (CSOF ¶ 35) Nevertheless, the above evidence is clearly controverted by Nancy Campbell, the Human Resource Coordinator, Staffing and Classification Specialist's affidavit, Plaintiff's Exhibit 14 and Defendants Exhibit 11. Nancy Campbell testified under oath that on 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. (CSOF ¶ 21). Grade 9 was the target for the specific position of Computer Specialist OCA 34-334-GS5/7/9. (CSOF ¶ 22) When Liz applied, she listed "specialized experience". Liz had used her computer skills from 1995 through 1998 and she was a Microsoft Certified Professional. (CSOF ¶ 23) 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. (CSOF ¶ 24) The candidate's race was written on the Merit Promotion Certificate by Defendant. (CSOF ¶ 25) The only reason to write the race on the Merit Promotion Certificate is if the race of the candidate is of issue. (CSOF ¶ 26) Instead of Liz, Richard Moore ("Mr. Moore"), the selecting official, selected Robert Pyle. (CSOF ¶ 27) Mr. Pyle is a white male. (CSOF ¶ 28) Liz was more qualified than Mr. Pyle as Liz was rated a GS-9 and Mr. Pyle was rated a GS-6. (CSOF ¶ 29). Defendants Exhibit 11, which is Plaintiff's Exhibit 14, shows that Liz was qualified for the position of Computer Specialist at a GS-9 level. (CSOF ¶ 36). The notification stated that Liz was qualified, but wasn't selected. (CSOF ¶ 36). Liz was never made aware of an error in her qualifications as GS-9. (CSOF ¶ 37). Based on Ms. Campbell's affidavit and Defendant's Exhibit 11, which is Plaintiff's Exhibit 14, a material issue of fact exists regarding the party's ratings, qualifications and experience. The issue of internal documents controlling over other

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documents present at least a triable question of fact. Lindsey v. SLT Los Angeles, LLC, 432 F.3d 954, 964 (9th Cir. 2005). D. THE EVIDENCE CLEARLY SHOWS THAT THE DEFENDANT HAS RETALIATED AGAINST LIZ. To succeed on a retaliation claim, a plaintiff must first establish a prima facie case. To establish such a case, the plaintiff must show that (1) she engaged in a protected activity, (2) that she was thereafter subjected by his or her employer to adverse employment action, and (3) that a causal link exists between the two. On October 15, 2001, the Defendant conducted a one employee Reduction in Force ("RIF"). (CSOF ¶ 53). A prima facie case of retaliation is established by a showing by the plaintiff that the adverse employment decision occurred after the protected activity of which the employer was aware. E.E.O.C. v. Crown Zellerbach Corporation, 720 F.2d 1008 (9th Cir. 1983); Aquirre v. Chula Vista Sanitary Service, 542 F.2d 779, 781 (9th Cir. 1976). The causal link may be established by an inference derived from circumstantial evidence, such as the employer's knowledge that the employee engaged in the protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision. If the plaintiff makes out a prima facie case, the burden shifts to the defendant to articulate some legitimate, non-retaliatory reason for the adverse action. The burden then shifts back to the plaintiff to show that the asserted reason is pretextual. Jordan v. Clark, 847 F.2d 1368 (9th Cir. 1988). The most obvious causal link between Plaintiff's protected activity and Defendants adverse actions is the proximity in time. Protective activity followed shortly by an adverse employment action was pretext for retaliation. Miller v. Fairchild Industries, Inc., 885 F.2d 489, 505 (9th Cir. 1989). See Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324-25 (D. Mass.) (holding that discharge six months after EEOC settlement and a month after
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an informal complaint satisfies causation requirement), aff'd, 545 F.2d 222 (1st Cir. 1976). See Miller, 797 F.2d at 731-32 (holding that an employer's knowledge of protected activity and the discharge of employees less than two months after negotiation of EEOC settlement agreements were sufficiently probative of a causal link to withstand summary judgment). Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (The supervisors issued the sub-average performance rating in late April 1980, approximately three weeks after Yartzoff, the supervisors, and the EEO counselor met to discuss the complaints). a. Defendant's RIF was Conducted in Retaliation for Liz's Protected Activity.

It is uncontested that Plaintiff engaged in a protected activity. On August 31, 2001, Liz led a protest. (CSOF ¶ 46) Over 300 VAMC employees marched in protest to the VAMC's discriminatory promotion practices.1 (CSOF ¶ 46). The protesters marched in front of the VAMC for four (4) hours demanding an end to Defendant's discriminatory promotion practices. (CSOF ¶ 47) On September 20, 2001, Liz received a Voluntary Separation Incentive Payment letter ("VSIP.") (CSOF ¶ 48) (CSOF ¶ 49) Liz refused the VSIP.

Of the sixteen (16) employees that received VSIP letter, eleven (11)

employees within the Mental Health Behavioral Science Services declined such incentive letter offers. (CSOF ¶ 50) On October 15, 2001, Defendant decided to conduct a one employee Reduction in Force ("RIF"). (CSOF ¶ 53). Of the eleven employees that declined such incentive letter offers, Liz was the only employee that was RIF'ed. (CSOF ¶ 51) In fact, 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. (CSOF ¶ 52) On October 17, It

2001, on behalf of Liz, AFGE requested the right to negotiate the RIF. (CSOF ¶ 54)

was discovered that Defendant did not have RIF authority to reduce Liz's position. (CSOF ¶ 55) Under VHA Directive 96-005, RIF actions adversely affecting employees in centralized positions must be approved by Veterans Health Administration ("VHA")
1

There were a series of three (3) informational protests. Each of these informational protests was closely followed by the TV and print media. 15

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Headquarters. (CSOF ¶ 56)

In fact, two days after Union intervention and five days

after they delivered the RIF notice to Liz, on October 22, 2001, VAMC requested authority for the RIF. (CSOF ¶ 57) On December 3, 2001, VHA denied the VAMC RIF Authority. (CSOF ¶ 58) Only one day after RIF authority was denied the VAMC,

Defendant then put Liz involuntarily into her current position of Human Resources Specialist, a position with no growth potential. (CSOF ¶ 59). In this position Liz became ineligible to represent fellow employees in EEO cases. (CSOF ¶ 63) Excluding Liz from engaging in protected activities work is to Defendant's advantage as Liz was a strong advocate for minorities and employees of VAMC. (CSOF ¶ 64) Liz can no longer

engage in protected activities which affect not only Liz, but the entire bargaining unit. (CSOF ¶ 65). An action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). Lateral transfers as well as ultimate employment actions such as hiring, firing, failing to promote, constitute adverse employment actions which are reasonably likely to deter employees from engaging in protected activity. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). Liz's informational protest activity satisfies the causation requirement. Defendant admits to knowledge of the protest and the fact that Liz was RIFed less than forty five days later and ultimately laterally transferred to human resources. b. Defendant's Failure to Promote Liz to GS-11 Human Resources Management Specialist Position was in Retaliation for Liz's Complaint to the Union which Stopped the RIF.

Liz qualified for the GS-11 Human Resources Management Specialist position
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based on her duties as the Vocational Rehabilitation Specialist in which she was
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responsible for job placement at the VA from September 10, 1999 though December 31,
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2001. (CSOF ¶ 73) This GS-9 position gave Plaintiff the one year of specialized
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experience in Federal Services. (CSOF ¶ 74) In the Compensation Worker Therapy Program (CWT) Plaintiff would determine individuals qualifications and medical abilities in order to fill a position. (CSOF ¶ 75) Plaintiff determined if individuals needed additional education, interviewing, computer, writing and communication skills. (CSOF ¶ 76) Liz had used the same experience as stated above for the same position on at least 3 prior occasions each time the VA had determined that she met the qualifications for GS-11 Human Resources Management Specialist position. (CSOF ¶ 77) Now less than 30 days after contesting the RIF with the Union and little more than 90 days after her formal protest she no longer qualifies for the position? Additionally, Defendant illegally increased the minimum requirements stating "Liz needs one (1) year of specialized experience in the pay grade of GS-9 in Federal Human Resource Functions." That's not required according to the Qualification Standards for General Schedule Position. At GS-11, the only specialized experience required was 1 year equivalent to at least GS-9. (CSOF ¶ 78) (See Defendant's Exhibit 29 which is Plaintiff's Exhibit 52). There is no mention that the position required one year specialized experience in Federal Human Resources functions. The change which violates the Standards for General Schedule Position occurred less than 30 days after Liz complained to the union regarding Defendant's discriminatory RIF and little more than 90 days after her informational protest! c. Liz was Treated Differently than Other Non-Black Employees in the way that the Human Resources Department Conducted the Log-In Policy in Retaliation for her Successful Complaint with the Union.

On October 17, 2001, on behalf of Liz, AFGE requested the right to negotiate the
24

RIF. (CSOF ¶ 54) It was discovered that Defendants did not have RIF authority to
25

reduce Liz's position. (CSOF ¶ 55) Under VHA Directive 96-005, RIF actions
26

adversely affecting employees in centralized positions must be approved by Veterans
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Health Administration (VHA) Headquarters. (CSOF ¶ 56) In fact, on October 22, 2001, five days after they delivered the RIF notice to Liz VAMC requested authority for the RIF. (CSOF ¶ 57) On December 3, 2001, the VHA denied VAMC RIF Authority. (CSOF ¶ 58). 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 to her supervisor or his designee and tell them where she is going. (CSOF ¶ 79) No other nonblack employee had this additional requirement. Altering the conditions of one person's employment is retaliatory. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). The additional requirement placed upon Liz occurred less than 1 week after she successfully thwarted Defendant's discriminatory RIF. III. CONCLUSION There are ample facts in this case to go to a jury on the issue of whether Defendant discriminated and retaliated against Liz. Defendant not only refused her promotions, Defendant maliciously RIF'ed her without authority. This is not simply a case of misunderstandings regarding VA policy and practices; this is much worse. Defendant's conduct is indefensible. Plaintiff requests that the Court deny Defendant's Motion for Summary Judgment in its entirety and grant Plaintiff's Summary Judgment on Defendant's failure to promote and retaliation against Liz.

Dated this 30th day of June, 2006.

s/Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Liz

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

s/Stephanie Coulter

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