Free Reply to Response to Motion - District Court of Arizona - Arizona

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 26 27 28
LIT T LE R ME NDE LSO N
A PR O F E SSIO N AL C O R PO R AT IO N C a m e lba ck E spla na de 2425 E a st C a m e lba ck Roa d Suite 900 Phoe nix, AZ 85016 602. 474. 3600

J. Mark Ogden; AZ Bar No. 017018 [email protected] J. Greg Coulter; AZ Bar No. 016890 [email protected] Brandon A. Newton; AZ Bar No. 021565 [email protected] LITTLER MENDELSON A Professional Corporation Camelback Esplanade 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Facsimile: 602.957.1801 Attorneys for Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Plaintiffs, v. Eagle Produce Limited Partnership, Phoenix Agro Invest, Inc., SAM Management, Inc., Defendants.

Defendants Eagle Produce Limited Partnership ("Eagle Produce"), Phoenix Agro Invest, Inc. ("Phoenix Agro") and SAM Management, Inc. ("SAM") (collectively "Defendants") hereby submit Defendants' Reply in Support of Defendants' Motion for Summary Judgment. This Reply is supported by the attached Memorandum of Points and Authorities, Defendants' Supplemental Statement of Facts in Support of Motion for Summary Judgment ("SSOF"), and all other papers and pleadings on file herein, all of which are incorporated herein by reference. No genuine issue as to any material fact exists in this case and judgment in favor of Defendants should be granted as a matter of law.

Case 2:03-cv-02127-MHM

Document 89

Filed 09/19/2005

Page 1 of 11



DEFENDANTS REPLY IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT



Abel Ruiz Diaz, Ubaldo Moreno, Piedad H. Renteria, Alejandro D. Mancilla,

Case No. CV03-2127 PHX-MHM

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 26 27 28
LIT T LE R ME NDE LSO N
A PR O F E SSIO N AL C O R PO R AT IO N C a m e lba ck E spla na de 2425 E a st C a m e lba ck Roa d Suite 900 Phoe nix, AZ 85016 602. 474. 3600

MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In their Response to Defendants' Motion for Summary Judgment ("Response"), Plaintiffs argue that they do not have to prove the fourth element of a prima facie case of age discrimination ­ being replaced by a substantially younger worker ­ because anybody hired by Eagle Produce would probably perform some of the duties Plaintiffs performed. The fact that a new hire might have hypothetically performed some of Plaintiffs' job duties does not create an issue of fact that prevents the Court from granting summary judgment. To

overcome summary judgment, Plaintiffs must produce specific facts that substantially younger workers actually replaced Plaintiffs. No such evidence exists. Even if Plaintiffs could establish a prima facie case of age discrimination, they cannot overcome Defendants' legitimate, non-discriminatory reason for their terminations. Plaintiffs have presented no evidence contradicting the fact that substantially less hours were available to Crew 94 in January and February 2002 when compared to previous years. Due to those reduction of hours, Moreno, Mancilla and Diaz were chosen, among many others, to be laid off. Renteria was terminated for cashing checks on company property. Plaintiffs failed to present any specific fact demonstrating that the stated reasons for their termination are pretext for age discrimination. II. ADDITIONAL FACTS Clint White was originally hired by Eagle Produce on June 11, 1999. SSOF ¶ 1. He was fired on March 12, 2002. SSOF ¶ 2. Arturo Osuma was originally hired by Eagle Produce on January 2, 2001. SSOF ¶ 3. William Monroe's employment with Eagle Produce ended on April 2, 2002. SSOF ¶ 4. Anton Bucklew was hired shortly thereafter to replace Monroe and operate the grader. SSOF ¶ 5. Justiniano Vazquez's employment with Eagle Produce ended on March 12, 2002. SSOF ¶ 6. Jose Andujo's employment with Eagle Produce also ended on March 12, 2002. SSOF ¶ 7.

Case 2:03-cv-02127-MHM

Document 89

-2-

Filed 09/19/2005

Page 2 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

III.

ARGUMENT In filing summary judgment, the moving party must first successfully bear the burden

of establishing (1) the absence of any genuine issue of material fact, and (2) its entitlement to judgment as a matter of law on the basis of undisputed facts. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has successfully done so, as in this case, the burden shifts to the nonmoving party who is then charged with contesting the defendant's prima facie case for summary judgment, demonstrating there is a genuine dispute of material fact and a need for trial to resolve the issues presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In doing so, the nonmoving party must identify for the Court specific facts supported by the evidence, which articulate and illustrate the presence of genuine issues requiring trial. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). There can be no trial, however, unless there is sufficient evidence presented which could support a verdict in the nonmoving party's favor. Id. at 249. Here, Plaintiffs failed to provide sufficient evidence in support of their Response. A. PLAINTIFFS CANNOT ESTABLISH THAT THEY WERE REPLACED BY SUBSTANTIALLY YOUNGER WORKERS. 1. Jose Garcia

16 17 18 19 20 21 22 23 24 25 26 27 28
LIT T LE R ME NDE LSO N
A PR O F E SSIO N AL C O R PO R AT IO N C a m e lba ck E spla na de 2425 E a st C a m e lba ck Roa d Suite 900 Phoe nix, AZ 85016 602. 474. 3600

At the time of his hire Jose Garcia was older than Diaz, but slightly younger than Moreno and Mancilla.1 Defendants cannot be liable for age discrimination based upon Garcia's hire unless the decision-maker knew that Garcia was substantially younger than Moreno and Mancilla. Robinson v. Adams, 847 F.2d 1315, 1316-17 (9th Cir. 1987).

Plaintiffs argue that because Defendants had documents showing each employee's age, that they knew Garcia was substantially younger than Moreno and Mancilla when hired. Plaintiffs ignore the fact that the only person's knowledge that is relevant is that of the individual responsible for the layoffs, Owen Brandt. It is undisputed that Brandt decided to lay off Moreno and Mancilla without input from anybody else. Additionally, Plaintiffs state that Brandt never looked at the employee files before deciding who to lay off. Plaintiffs'
1

Renteria was still employed when Garcia was hired.

Case 2:03-cv-02127-MHM

Document 89

-3-

Filed 09/19/2005

Page 3 of 11

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 26 27

Statement of Genuine Issues ("PSOF") ¶ 22. No inference exists that Brandt knew, or looked at any documentation showing, Moreno's, Mancilla's or Garcia's age before he decided to lay off Moreno and Mancilla and hire Garcia. Because Plaintiffs have no direct or indirect evidence that Brandt knew that Garcia was substantially younger, Garcia cannot be used to establish a prima facie case of age discrimination. 2. William Monroe and Anton Bucklew

Plaintiffs failed to present evidence that Monroe was not hired to replace Fermin Palma and operate the grader, a job that none of the Plaintiffs performed. Anton Bucklew was hired to operate the grader and replace Monroe after Monroe's termination. SSOF ¶ 5. Neither of these individuals can be used to establish a prima facie case of age discrimination because they were not hired to replace Plaintiffs. 3. Clint White and Arturo Osuma

Exhibit N in PSOF is an inaccurate and inadmissible chart (the "Chart"). For the reasons stated in Defendants' Motion to Strike, the information on the Chart cannot be used to oppose Defendants' Motion for Summary Judgment. If the Chart constitutes admissible evidence despite its clear inaccuracies, Plaintiffs argue that based upon dates in the Chart, White and Osuma were hired to replace them.2 White and Osuma, however, were hired by Eagle Produce before 2002. White was originally hired in June 1999 and Osuma was hired January 2001. SSOF ¶¶ 1, 3. Neither Osuma nor White can be used to establish a prima facie case because they were not hired by Eagle Produce to replace any of the Plaintiffs. 4. Juan Cazares, Javier Gastelum, Jesus Valdez and Ramiro Salgado

Based solely upon the inaccurate and inadmissible hearsay in the Chart, Plaintiffs argue that Cazares was hired on May 10, 2002, Gastelum was hired on April 4, 2002, Valdez was hired on March 20, 2002, and Salgado was hired on April 16, 2002. Even if those individuals were hired on the dates stated by the Chart, they still cannot be used to establish
2

28
LIT T LE R ME NDE LSO N
A PR O F E SSIO N AL C O R PO R AT IO N C a m e lba ck E spla na de 2425 E a st C a m e lba ck Roa d Suite 900 Phoe nix, AZ 85016 602. 474. 3600

According to the inaccurate Chart, Osuma was hired only after Diaz was laid off and White was hired after Moreno, Mancilla and Diaz were laid off.

Case 2:03-cv-02127-MHM

Document 89

-4-

Filed 09/19/2005

Page 4 of 11

1 2 3 4 5 6 7 8 9 10

a prima facie case of discrimination. Farming operations differ greatly from normal businesses. Work being performed by Eagle Produce varies week to week. As the season progresses, Eagle Produce requires more and more workers in order to efficiently plant and harvest crops. Hiring workers six to eight weeks after the layoff of Moreno, Mancilla and Diaz has no evidentiary value without more detail. Additionally, Eagle Produce terminated employees from Crew 94 in early March, weeks before any of these employees were allegedly hired. The hiring of a worker after the termination of several other workers months after the layoffs of Plaintiffs does not provide evidence of age discrimination. 5. No Evidence Exists Proving that Anyone Replaced Plaintiffs or Performed Plaintiffs' Job Duties After Their Employment Ended.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LIT T LE R ME NDE LSO N
A PR O F E SSIO N AL C O R PO R AT IO N C a m e lba ck E spla na de 2425 E a st C a m e lba ck Roa d Suite 900 Phoe nix, AZ 85016 602. 474. 3600

Assuming, arguendo, that Brandt knew Garcia was substantially younger than Moreno and Mancilla, and that Osuma, White, Cazares, Gastelum, Valdez and Salgado were hired at the times specified by the inaccurate Chart, no evidence exists demonstrating what job duties they performed after they were hired. Plaintiffs argue that because Defendants did not present evidence that the these individuals were not hired to replace Plaintiffs, that Plaintiffs have established a prima facie case. That is not the correct standard to overcome a motion for summary judgment. See Celotex¸ 477 U.S. at 325 (the moving party's burden is satisfied by showing an absence of evidence to support the nonmoving party's case). The mere hiring of a worker does not provide a prima facie case of age discrimination. It is Plaintiffs' burden to establish facts proving that they were replaced by these workers. No evidence exists that any of these individuals drove tractors for Eagle Produce or performed any job duty that any of the Plaintiffs performed. General statements and beliefs that the work performed by Crew 94 was by and large the same and that these workers might have performed similar jobs does not create any issue of fact that precludes summary judgment. At the summary judgment stage, Plaintiffs must set forth specific facts demonstrating each and every element of their prima facie case. Mere speculation and possibilities cannot prevent summary judgment. Because Plaintiffs failed to state specific facts that establish -5-

Case 2:03-cv-02127-MHM

Document 89

Filed 09/19/2005

Page 5 of 11

1 2

their prima facie case, summary judgment should be granted in favor of the Defendants.3 B. MORENO CANNOT ESTABLISH THAT HE WAS PERFORMING HIS JOB SATISFACTORILY.

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LIT T LE R ME NDE LSO N
A PR O F E SSIO N AL C O R PO R AT IO N C a m e lba ck E spla na de 2425 E a st C a m e lba ck Roa d Suite 900 Phoe nix, AZ 85016 602. 474. 3600

Plaintiffs argue that because Moreno's termination sheet does not reference his poor performance, he had to be performing his job at a satisfactory level. Moreno admitted at his deposition that the tractor he was driving the night before his termination suffered damage, which Brandt estimated at $10,000 of damage. By severely damaging a tractor, Moreno was not performing his job to Eagle Produce's legitimate expectations and for this reason alone he cannot establish a prima facie case of age discrimination. C. PLAINTIFFS WERE TERMINATED FOR LEGITIMATE, NONDISCRIMINATORY REASONS. 1. Plaintiffs Have No Direct Evidence of Discrimination

Defendants' Motion to Strike explains in detail why Renteria's affidavit is nothing more than a self-serving "sham" affidavit. Even if Renteria heard Gilberto Vigueria state that he wanted to fire the older workers, it is not direct evidence. Brandt terminated

Plaintiffs. No evidence exists that Vigueria had any input or knowledge that Brandt was going to terminate Plaintiffs. A stray comment by a decisionmaker is, at best, very weak circumstantial evidence. Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993). A stray comment by an individual that had no impact in the adverse employment action most certainly has no evidentiary value. Similarly, Chester Daffren's belief that he was fired because of his age is not direct evidence. It is also not admissible evidence that the Court can consider in opposition to a motion for summary judgment. See Defendants' Motion to Strike. Even if Daffren's

termination is admissible, Jimmy Byrd fired Daffren, not Brandt. Because Brandt had no involvement in Daffren's termination, it cannot be used as evidence by Plaintiffs in this case.
3

Plaintiffs argue that the EEOC cause finding should be considered by the Court as indirect evidence. An EEOC cause determination is not suffiicent to create a genuine issue of material fact. Roberts v. Dimension Aviation, 319 F. Supp.2d 985, 991 (D. Ariz. 2004); Mondero v. Salt River Project, 400 F.3d 1207, 1214-15 (9th Cir. 2005). When it is impossible to know what facts the EEOC considered and how it analyzed those facts, a cause letter has little probative value. Roberts, 319 F. Supp 2d at 991.

Case 2:03-cv-02127-MHM

Document 89

-6-

Filed 09/19/2005

Page 6 of 11

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 26 27 28
LIT T LE R ME NDE LSO N
A PR O F E SSIO N AL C O R PO R AT IO N C a m e lba ck E spla na de 2425 E a st C a m e lba ck Roa d Suite 900 Phoe nix, AZ 85016 602. 474. 3600

2.

Plaintiffs Were Terminated for Legitimate, Non-Discriminatory Reasons

No evidence has been presented by Plaintiffs refuting the fact that substantially less work was available for Crew 94 for January and February 2002. Instead, Plaintiffs argue that because Defendants have not stated every reason why less work was available in early 2002 that summary judgment should not be granted. Defendants explained in their Motion for Summary Judgment that increased use of plastic mulch was a factor in the reduced hours available for Crew 94. Plaintiffs point out that Brandt stated in his deposition that the decision not to plant broccoli in early 2002 contributed to the lack of work for Crew 94. Those are not inconsistent reasons; there were numerous factors why substantially less work was available in early 2002. The fact that Defendants did not list each and every one of those reasons does not prove that the lack of hours is a pretext for age discrimination. It is undisputed that Eagle Produce did not have enough work for all of its employees on Crew 94 in early 2002, which led to layoffs. a. Deviation for Established Policy Not Evidence of Pretext.

Plaintiffs' claim that because Brandt deviated from Eagle Produce's layoff policy, pretext can be assumed.4 For support, Plaintiffs cite to Brennan v. GTE Government Syst. Corp., 150 F.3d 21, 29 (1st Cir. 1998).5 The employer in Brennan stated that it fired the plaintiff because of the diminishing work load and that plaintiff was among the lowest ranked employees performing that type of work. Id. at 28. Brennan offered evidence of pretext in his performance reviews, the amount of work available after his layoff, the disproportionate age-weighted layoffs, favoritism by the employer toward younger employees, evidence showing that older qualified employees were discharged and younger, less qualified engineers were retained, and that the specific and detailed layoff procedure was not followed. Id. at 28-30. The Court found evidence of pretext based upon the totality of evidence submitted by Brennan. Id. The fact that the employer did not follow the layoff
4

Plaintiffs also argue that it was "company policy that the farm manager, Jimmy Byrd, is involved in the decisions to hire and fire all company employees." There is no such policy. 5 Plaintiffs mistakenly cite this case as a Ninth Circuit case.

Case 2:03-cv-02127-MHM

Document 89

-7-

Filed 09/19/2005

Page 7 of 11

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 26 27 28
LIT T LE R ME NDE LSO N
A PR O F E SSIO N AL C O R PO R AT IO N C a m e lba ck E spla na de 2425 E a st C a m e lba ck Roa d Suite 900 Phoe nix, AZ 85016 602. 474. 3600

procedure was admittedly "thin" evidence of pretext. Id. at 29. Plaintiffs in this case do not have even a fraction of the evidence submitted by Brennan. Plaintiffs cannot prove pretext solely by stating that Brandt did not follow Eagle Produce's policy; Plaintiffs must provide evidence of a discriminatory connection. See Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir. 1989) (an agency's disregard of its own hiring system does not of itself conclusively establish that improper discrimination occurred or that a nondiscriminatory explanation for an action is pretextual). To show pretext,

Plaintiffs must "produce enough evidence to allow a reasonable trier of fact to conclude either: (a) that the alleged reason for [their] discharge was false, or (b) that the true reason for [their] discharge was a discriminatory one." Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996). Brandt stated that he chose which employees to lay off on the basis of his personal observations of their ability, skill, and attendance. The mere fact that Brandt did not consider tenure at Eagle Produce when considering which employees to lay off does not demonstrate pretext. b. Reasons for the Terminations of Plaintiffs Not Inconsistent

Different justifications for an adverse employment action will not defeat summary judgment if those reasons are "not incompatible." Nidds, 113 F.3d at 918; see also Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 661 (9th Cir. 2002) ("We do not infer pretext from the simple fact that [an employer] had two different, although consistent, reasons for laying off [an employee.]"); see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1286 (9th Cir. 2000) (holding that employer's reasons for termination which "mainly detail[ed] the earlier one [it gave]," was not sufficient evidence of pretext). Eagle Produce's reasons for terminating each Plaintiff are consistent. i. Piedad Renteria

Renteria was terminated for cashing checks on company property after receiving a warning by Brandt to stop cashing checks on company property. This fact is undisputed. Renteria, however, states in his affidavit that he was not the only employee cashing checks

Case 2:03-cv-02127-MHM

Document 89

-8-

Filed 09/19/2005

Page 8 of 11

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 26 27 28
LIT T LE R ME NDE LSO N
A PR O F E SSIO N AL C O R PO R AT IO N C a m e lba ck E spla na de 2425 E a st C a m e lba ck Roa d Suite 900 Phoe nix, AZ 85016 602. 474. 3600

on company property, but that he was the only one disciplined for cashing checks. This "fact" is too general to be considered admissible evidence. Without knowing who these employees were, who their supervisor was, and when they were cashing checks, no relevant evidence exists.6 Brandt warned Renteria to stop cashing checks as soon as he learned that Renteria was cashing checks on company property. It does not matter that Renteria was cashing checks for a period of time before Brandt became his supervisor. After being warned, Renteria cashed checks again and was terminated. Plaintiffs also argue that Defendants' Interrogatory answers state that Renteria was terminated due to a reduction of work in addition to cashing checks. Those reasons are not inconsistent. See Roge v. NYP Holdings, Inc., 257 F.3d 164, 169-170 (2d Cir. 2001)

(upholding summary judgment for the employer because there is no inconsistency in the employer's reasons that it terminated the plaintiff for a lack of work and because it believed that the employee engaged in disability fraud). Because Renteria cannot demonstrate that either reason for his termination is false, he cannot establish pretext. ii. Abel Diaz

John Redmond's letter to the EEOC specifically states that Diaz was laid off due to a slowdown in work. The letter lists several factors considered by Eagle Produce including Diaz's refusal to transfer to the harvest crew. The testimony given by Brandt during his deposition mirrors Redmond's letter to the EEOC: that no work was available on Crew 94, Diaz was offered a transfer to the harvest crew, and when he declined, he was laid off. Defendants' reasons for terminating Diaz are compatible, thus Diaz cannot prove pretext. iii. Ubaldo Moreno

It is undisputed that Moreno was laid off due to a work slowdown. He was chosen for a layoff because of his poor work performance as stated by Redmond to the EEOC and by Brandt.7 Brandt's testimony and Redmond's letter to the EEOC are not "fundamentally
6 7

For example, if Brandt was not this other individual's supervisor, no discriminatory motive can be inferred. In their Response. Plaintiffs refer to a phone conversation Redmond had with the EEOC. That conversation, as stated in Defendants' Motion to Strike, is hearsay and inadmissible evidence.

Case 2:03-cv-02127-MHM

Document 89

-9-

Filed 09/19/2005

Page 9 of 11

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 26 27 28
LIT T LE R ME NDE LSO N
A PR O F E SSIO N AL C O R PO R AT IO N C a m e lba ck E spla na de 2425 E a st C a m e lba ck Roa d Suite 900 Phoe nix, AZ 85016 602. 474. 3600

different justifications" for Eagle Produce's actions. Both state that due to a lack of work, layoffs were necessary and Moreno was chosen because of his work performance. iv. Alejandro Mancilla

Similar to Moreno, Mancilla was chosen to be laid off due to his poor work performance. Brandt testified and Redmond's letter to the EEOC reference that Mancilla was laid off because he damaged company property. Plaintiffs ignore Redmond's letter to the EEOC in order to manufacture an alleged inconsistency. Plaintiffs state that Redmond's deposition testimony does not point out that Mancilla's work performance was considered by Brandt. Redmond's memory in 2005 regarding events that occurred in 2002 does not create stark inconsistencies that give rise to pretext. Eagle Produce has always stated that

Mancilla's work performance factored into Brandt's decision to lay him off. Plaintiffs also attempt to show an inconsistency by citing the additional information provided by Eagle Produce in its Interrogatory answers, and by Brandt in his deposition regarding why Mancilla was chosen to be laid off. The fact that Eagle Produce did not state this reason until this litigation began has no evidentiary value. See Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991) ("Simply because an explanation comes after the beginning of litigation does not make it inherently incredible."). At most, the Court can find the fact that the end of the experimental tractor work being performed by Mancilla was an additional, but undisclosed, reason for Brandt's decision; the existence of an additional nondiscriminatory basis, however, does not prove pretext. Tidwell v. Carter Products, 135 F.3d 1422, 1428 (11th Cir. 1998). 3. Conclusion

Plaintiffs have not presented any evidence that the reasons for their discharge, either a lack of work or violation of company policy, are false. By taking testimony out of context, Plaintiffs have attempted to show that Eagle Produce's stated reasons for terminations are inconsistent. Additionally, Plaintiffs allege that slight deviations from policy demonstrates pretext. This weak circumstantial evidence fails to establish that the true reason for

Case 2:03-cv-02127-MHM

Document 89

-10-

Filed 09/19/2005

Page 10 of 11

1 2 3

Plaintiffs' discharge was a discriminatory one. Accordingly, Plaintiffs cannot prove pretext and their claims must be dismissed. D. NO EVIDENCE EXISTS DEMONSTRATING PHOENIX AGRO DISCRIMINATED AGAINST PLAINTIFFS.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LIT T LE R ME NDE LSO N
A PR O F E SSIO N AL C O R PO R AT IO N C a m e lba ck E spla na de 2425 E a st C a m e lba ck Roa d Suite 900 Phoe nix, AZ 85016 602. 474. 3600

Plaintiffs argue that because they were allowed to amend their complaint to add Phoenix Agro, that summary judgment should be precluded. Plaintiffs' argument has no merit. Plaintiffs must present evidence establishing that Phoenix Argo discriminated against Plaintiffs. They have failed to meet that burden and Phoenix Agro should be dismissed. IV. CONCLUSION No evidence exists that any employee hired by Eagle Produce after the layoffs of Moreno, Mancilla and Diaz and the termination of Renteria was hired to replace Plaintiffs or to perform any job duty that Plaintiffs performed. Without that evidence, Plaintiffs cannot establish a prima facie case of discrimination. Even if that evidence existed, each Plaintiff was either laid off or terminated for an undisputed, legitimate, non-discriminatory reason. RESPECTFULLY SUBMITTED this 19th day of September, 2005.

s/Greg Coulter J. Mark Ogden J. Greg Coulter Brandon A. Newton LITTLER MENDELSON Attorneys for Defendants I hereby certify that on September 19, 2005, 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: Kristina Campbell George H. McKay Community Legal Services 305 South Second Avenue Phoenix, AZ 85036-1538

s/ Ruth A. Mare
Case 2:03-cv-02127-MHM Document 89

-11-

Filed 09/19/2005

Page 11 of 11