Free Response to Motion - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Elizabeth A. Petersen (#018377) Robert G. Vaught (#020717) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 [email protected] [email protected] Attorneys for Defendant DriveTime Automotive Group IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Debra Jilka, Plaintiff, v. DriveTime Automotive Group aka Ugly Duckling Corporation, Defendant. No. CV-03-1369-PHX-MHM RESPONSE TO "PLAINTIFF'S MOTION TO STRIKE AFFIDAVIT OF LISA SHELDON AND MOTION FOR CHARGES OF PERJURY" (DOC. #114), AND "PLAINTIFF'S MOTION TO STRIKE AFFIDAVIT OF BRANDIE ANSLOW AND MOTION FOR CHARGES OF PERJURY" (DOC. #115)

Snell & Wilmer L.L.P.

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Defendant DriveTime Automotive Group aka Ugly Duckling Corporation ("DriveTime"), hereby responds in opposition to "Plaintiff's Motion to Strike Affidavit of Lisa Sheldon and Motion for Charges of Perjury" (Doc. #114) and "Plaintiff's Motion to Strike Affidavit of Brandie Anslow and Motion for Charges of Perjury" (Doc. #115). Plaintiff has presented no evidence to justify striking the Affidavits from the record, or to support her outrageous request for perjury charges. Lisa Sheldon's Affidavit is based on her review of Plaintiff's employee file and her personal knowledge of DriveTime's policies and procedures. Her Affidavit analyzes DriveTime's PTO policy, Plaintiff's use of that policy in the months prior to her termination, and the circumstances surrounding Plaintiff's termination as reflected in the termination paperwork. Ms. Sheldon is certainly qualified, in her position as DriveTime's

Case 2:03-cv-01369-MHM

Document 124

Filed 10/24/2005

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Regional Team Manager of Human Resources, to present such evidence in support of DriveTime's Motion for Summary Judgment. Indeed, Plaintiff does not dispute that Ms. Sheldon is qualified to review and comment upon her employee file, but objects to the Affidavit because she "is not familiar with Ms. Sheldon, her title at the time of Plaintiff's termination, or when she was employed by the company." Plaintiff's Motion to Strike Affidavit of Lisa Sheldon, at p. 1. However, Plaintiff's unfamiliarity with Ms. Sheldon does not render her Affidavit inadmissible. Brandie Anslow is DriveTime's Director of Human Resources. Ms. Anslow and Ruth Leatherman decided to terminate Plaintiff for poor performance on March 21, 2003. Ms. Anslow obviously has direct knowledge of her conversations with Plaintiff's supervisors, as well the decision-making process leading up to Plaintiff's termination. Plaintiff objects to Ms. Anslow's Affidavit because "Ms. Anslow was not in Ms. Leatherman's office or on the phone with Ms. Leatherman at the time of Plaintiff's termination." Plaintiff's Motion to Strike Affidavit of Brandie Anslow at p. 1. Plaintiff's objection is irrelevant, however, as Ms. Anslow never claimed to be present when Plaintiff was actually notified of her termination. In addition, Ms. Anslow's Affidavit reiterates Ms. Sheldon's analysis of DriveTime's PTO policy and Plaintiff's use of that policy prior to her termination. Despite Plaintiff's suggestion to the contrary, this information is directly relevant to the present dispute, as the sole basis for Plaintiff's claim under the Family Medical Leave Act is the March 19, 2003 write up concerning Plaintiff's PTO time. Finally, DriveTime objects to Plaintiff's request for perjury charges. The information contained in the Affidavits is truthful, and based on the affiants' own knowledge and experience. Plaintiff has not presented one shred of evidence to the contrary. Plaintiff's speculation and conjecture, while arguably appropriate for future witness examination, is not sufficient to warrant striking the Affidavits from the record,

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Case 2:03-cv-01369-MHM

Document 124 2 - Filed 10/24/2005

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

and is certainly not grounds for this Court to issue perjury charges. For the foregoing reasons, DriveTime respectfully asks the Court to deny "Plaintiff's Motion to Strike Affidavit of Lisa Sheldon and Motion for Charges of Perjury" (Doc. #114) and "Plaintiff's Motion to Strike Affidavit of Brandie Anslow and Motion for Charges of Perjury" (Doc. #115). RESPECTFULLY SUBMITTED this 12th day of October, 2005. SNELL & WILMER L.L.P. By: /s/ Elizabeth A. Petersen Elizabeth A. Petersen Robert G. Vaught One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Attorneys for Defendant DriveTime ORIGINAL of the foregoing filed electronically with the Clerk of the U.S. District Court this 24th day of October, 2005. and I hereby certify that on October 24th, 2005, I served the attached document by mail, on the following, who is not a registered participant of the CM/ECF System: Debra Jilka 1738 W 6th Ave. Mesa, AZ 85202 480-969-7263 Pro Per /s/ Susan McGinn
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Case 2:03-cv-01369-MHM

Document 124 3 - Filed 10/24/2005

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