Free Statement - 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) 382-6378 [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. DEFENDANT DRIVETIME AUTOMOTIVE GROUP'S STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT No. CV-03-1369-PHX-MHM

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Defendant DriveTime Automotive Group, aka Ugly Duckling Corporation ("DriveTime") hereby submits the following Statement of Facts in support of its Motion for Summary Judgment, filed concurrently herewith.

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

1.

On September 24, 2001, DriveTime hired Plaintiff Debra Jilka as Regional

Mediator in the Customer Relations Department. (See Affidavit of Lisa Sheldon, (hereinafter, "Sheldon Affidavit") at ¶ 2, attached as Exhibit A.) 2. On October 14, 2002, Ms. Jilka was counseled because she had used up her

allotted "Paid Time Off" ("PTO") for the year, resulting in an unexcused absence, and for being tardy more than ten times since August 1, 2002. (See Performance Discussion Record dated October 14, 2002, attached as Exhibit B.) 3. On November 22, 2002, Ms. Jilka and her supervisor, Ruth Leatherman,

reviewed her written annual Performance Review. (See 2002 Non-Supervisory Employee Evaluation, attached as Exhibit C.) 4. The Performance Review noted that Ms. Jilka's attendance was

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unsatisfactory. See id. 5. In addition, Ms. Jilka was impersonal and indifferent, and had difficulty

interfacing with customers and co-workers. See id. 6. Ms. Jilka testified that she was aware of the issues raised in her Performance

Review, and that she did not feel that she was being discriminated against or harassed in any way by Ms. Leatherman in pointing out these issues. (See Deposition Transcript of Debra Jilka, (hereinafter "Jilka Deposition") at 65:24 ­ 66:19, attached as Exhibit D.) 7. On January 16, 2003, Ms. Jilka was written up for failing to follow up

properly on two legal matters involving customers. (See Performance Discussion Record dated January 16, 2003, attached as Exhibit E.) 8. As a result, additional and unnecessary follow-up was required from other

employees. See id. 9. Ms. Jilka's response to this write up was: "What's done is done and will not

happen again." See id.

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

10.

On February 26, 2003, a customer contacted the Customer Service

Supervisor to complain that Ms. Jilka had been rude and unprofessional to him. (See email from Diana Pastrano dated February 26, 2003, attached as Exhibit F.) 11. On March 5, 2003, Ms. Jilka was written up after another employee

complained that she had insulted him by falsely stating that he was a drug user in front of other employees. (See Performance Discussion Record dated March 5, 2003, attached as Exhibit G; see also, e-mail from Jaime Castillo dated February 26, 2003, attached as Exhibit H; Jilka Deposition at 70:3-16, attached as Exhibit D.) 12. Ms. Jilka agreed that her comment was inappropriate, and that she should

have been written up. (See Jilka Deposition at 73:7-17, attached as Exhibit D.) 13. Under the DriveTime PTO policy, Ms. Jilka was entitled to five hours off

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for each pay period. (See Sheldon Affidavit at ¶7, attached as Exhibit A.) 14. Thus, by March 19, 2003, Ms. Jilka was entitled to only 25 hours off. (See

Sheldon Affidavit at ¶8, attached as Exhibit A.) 15. If Ms. Jilka had sought and obtained prior approval from management for

vacation or personal reasons (which she did not), she could have borrowed up to an additional 40 hours. (See Sheldon Affidavit at ¶10, attached as Exhibit A.) 16. Assuming Ms. Jilka properly sought and obtained pre-approval from

management, her total available PTO hours was 65, or 8 days and one hour. (See Sheldon Affidavit at ¶11, attached as Exhibit A.) 17. On February 10, 2003, Ms. Jilka had taken leave pursuant to the FMLA for

five days, until February 14, 2003. (See DriveTime Response to Employee Request for Family or Medical Leave dated February 18, 2003, attached as Exhibit I.) 18. Ms. Jilka had been absent nine days not covered by FMLA, tardy twice, and

left early once. (See Sheldon Affidavit at ¶11, attached as Exhibit A; see also Deposition

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

Transcript of Ruth Leatherman, (hereinafter "Leatherman Deposition"), at 47:14-17, attached as Exhibit J.) 19. As a result, on March 19, 2003, Ms. Jilka was properly written up for

violating the DriveTime attendance policy. (See Performance Discussion Record dated March 19, 2003, attached as Exhibit K, and Sheldon Affidavit at ¶11-12, attached as Exhibit A.) 20. See id. 21. Once this was brought to DriveTime's attention, the FMLA days were Ms. Jilka's five FMLA days were inadvertently included in the write up.

immediately removed from the write up. (See Performance Discussion Record dated March 19, 2003, attached as Exhibit L, and Sheldon Affidavit at ¶13, attached as Exhibit A.) 22. However, because she had exceeded her allocated PTO time

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notwithstanding FMLA days, she would have been written up anyway. See Sheldon Affidavit at ¶14, attached as Exhibit A. 23. During her discussion with Ms. Leatherman about her absenteeism and

tardiness, Ms. Leatherman allegedly told Ms. Jilka that several other people were written up the previous week for attendance issues, and that Ms. Jilka "probably heard them talk about it on the floor." (See e-mail from Debra Jilka dated March 20, 2003, attached as Exhibit M.) 24. Ms. Jilka freely admitted in her deposition that she was already aware that

several people had been written up. (See Jilka Deposition at 115:20-24, attached as Exhibit D.) 25. Ms. Jilka then complained to Brandie Anslow, DriveTime's Human

Resources Director, and Eileen Hickey, the Director of Retail Operations and Ms. Leatherman's supervisor, about these comments, noting specifically that "if we believe in

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

integrity and accountability, let's start with certain members of management." (See e-mail from Debra Jilka dated March 20, 2003, attached as Exhibit M.) 26. Ms. Jilka testified that she was specifically referring to Ms. Leatherman.

(See Deposition of Debra Jilka at 118:17-21, attached as Exhibit D.) 27. Because of the numerous performance issues and Ms. Jilka's continuing

inability to get along with customers, co-workers and especially her supervisor, Ms. Anslow and Ms. Leatherman elected to terminate Ms. Jilka on March 21, 2003. (See Sheldon Affidavit at ¶6, attached as Exhibit A; see also Leatherman Deposition at 53:454:11, 94:21-95:2, attached as Exhibit J.) 28. At no time was Ms. Jilka's age or attendance ever raised as an issue that

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contributed to her termination. (See Sheldon Affidavit at ¶6, attached as Exhibit A.) 29. Ms. Jilka was terminated solely for poor performance. (See Sheldon

Affidavit at ¶6, attached as Exhibit A; see also Leatherman Deposition at 53:12-13, attached as Exhibit J, and see Termination paperwork, attached as Exhibit N.) 30. Ms. Jilka testified that the sole basis for her age discrimination claim is that

she was terminated and replaced by a younger employee. (See Jilka Deposition at 85:710, attached as Exhibit D.) 31. Ms. Jilka asked Ms. Leatherman, to join her discrimination lawsuit after Ms.

Leatherman's employment with DriveTime ended. (See Leatherman Deposition at 6:3-7, attached as Exhibit J.) 32. The sole basis for Ms. Jilka's FMLA claim is that the March 19, 2003 write

up referenced days that were covered under her FMLA policy. (See Jilka Deposition at 92:11-21, attached as Exhibit D.) 33. However, Ms. Jilka did not complain about that reference while she was

employed at DriveTime. (See Jilka Deposition at 108:17:23, attached as Exhibit D.) 34. The decision-maker in this matter was over 40 years old. (See Leatherman

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

Deposition at 92:11-14, attached as Exhibit J.) 35. Ms. Jilka filed a Complaint with the Department of Labor alleging that

DriveTime violated the FMLA by terminating her. (See Letter from Department of Labor to Debra Jilka dated April 28, 2003, attached as Exhibit O.) 36. The Department of Labor Wage-Hour Investigator, Thomas C. Hull, fully

investigated this charge, and concluded that DriveTime did not violate the FMLA. Mr. Hull concluded that DriveTime was within its rights in terminating Ms. Jilka, as the decision to terminate her employment was not made based upon her FMLA leave, nor was Ms. Jilka treated disparately for taking a leave pursuant to FMLA. (See Letter from Thomas Hull to Debra Jilka dated May 12, 2003, attached as Exhibit P.) RESPECTFULLY SUBMITTED this 29th day of August, 2005. SNELL & WILMER L.L.P.

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By: s/Elizabeth A. Peterson Elizabeth A. Petersen Robert G. Vaught One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Attorneys for Defendant DriveTime

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

ORIGINAL of the foregoing filed electronically with the Clerk of the U.S. District Court this 29th day of August, 2005. I hereby certify that on August 29, 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/Crystal Olton
26785.0149\VAUGHTR\PHX\1716120.1

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