Free Memorandum - District Court of Arizona - Arizona

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RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 Telecopier: 602/257-9582 Michael D. Moberly ­ 009219 Andrea G. Lisenbee - 019882 Attorneys for Defendant/Counterclaimant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA AMMAR HALLOUM, Plaintiff, vs. INTEL CORPORATION, Defendant. INTEL CORPORATION, Counterclaimant, vs. AMMAR HALLOUM and SAWSAN HAMAD, Counterdefendants. Pursuant to the Court's authorization and direction at the conclusion of trial, Defendant/Counterclaimant Intel Corporation ("Intel or the "Company") the DEFENDANT/COUNTERCLAIMANT'S MEMORANDUM IN SUPPORT OF ITS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW No. CIV-02-02245-PHX-EHC

20 Company hereby submits the following memorandum in support of its Proposed 21 Findings of Fact and Conclusions of Law submitted concurrently herewith. 22 23 24 25 26 I. Halloum Failed to Present Direct Evidence of Discrimination One means of establishing a prima facie case under Title VII is through the production of direct evidence of discrimination. See Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1074 n.2 (9th Cir. 1986) ("A prima facie case may . . . be

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established through the production of direct evidence of discrimination."); see also Mendoza v. Sysco Food Services of Arizona, Inc., 337 F. Supp. 2d 1172, 1182 & n.3 (D. Ariz. 2004). Only two individuals who testified at trial worked directly with the plaintiff, Ammar Halloum, and Paul Callaghan, the Company representative Halloum claims discriminated and retaliated against him, during the relevant post-September 11, 2001 time period. Those witnesses were two of Halloum's subordinates, Christian Hess and Dorothy ("Dot") Townsend. Both Hess and Townsend testified that they never saw Callaghan mistreat Halloum in any respect, and both reported that fact to Sherri Jacob, the Intel Human Resources Representative who investigated Halloum's discrimination and retaliation allegations. Townsend also testified, without contradiction from

Halloum, that although he treated her as something of a confidante, he never told her that he felt Callaghan was discriminating against him because of his religion or national origin. (Tr. at 1037-38, 1047, 1123-25, 1127-28, 1138-39, 1177.) Halloum elected not to offer any rebuttal to the testimony of Hess or Townsend (or, for that matter, any other rebuttal to the evidence presented by the Company during its case). On the contrary, far from rebutting Hess and Townsend's testimony, much of Halloum's own evidence confirmed their perceptions of Callaghan's treatment of Halloum. For example, the only witness Halloum himself presented who actually worked with Halloum and Callaghan was an administrative assistant in their department, Dorrie Hoffman. Hoffman, who actually left Intel's employment prior to September 11, 2001, testified unequivocally that she also never saw Callaghan mistreat Halloum. (Tr. at 217, 219, 237, 245-47.)1
1

To the extent Hoffman was critical of Callaghan, it was of his alleged treatment of her, and she is neither a Muslim nor of Arabic origin. (Tr. at 239-43, 245.) Under the

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Halloum also introduced an exhibit reflecting Jacob's summary of her interview of Halloum's only other subordinate, Tim Theodoseau, which was conducted in connection with Jacob's investigation of Halloum's allegations against Callaghan. Although Theodoseau was critical of Callaghan's management of Halloum (and, apparently, of Theodoseau himself), Theodoseau directly refuted Halloum's claim that Callaghan discriminated against Halloum. (Tr. at 910-12; Exhibit 46.) In particular, Theodoseau told Jacob that while he understood Halloum was claiming that Callaghan's alleged treatment of him was attributable to "the 9/11 thing," this was not so. (See Exhibit 46, at p. 2.) While acknowledging that there appeared to be a "personality type issue" between Halloum and Callaghan, Theodoseau specifically told Jacob that the way in which Callaghan treated Halloum was "not due to religion or national origin." (Id. at pp. 2, 4.)2 The only other "direct" evidence of alleged discrimination Halloum presented was his assertion that Callaghan made certain inappropriate remarks in the workplace. These included (1) questions Callaghan allegedly asked Halloum shortly

circumstances, even if Hoffman had testified that Callaghan somehow mistreated Halloum, that testimony "by an employee with [her] own axe to grind [would have] too little probative value to make out a prima facie case of discrimination." Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 360 (7th Cir. 2001). The Court observed during the course of trial that Jacob's summary of Theodoseau's interview contains hearsay. (Tr. at 519, 780.) However, the summary was introduced in evidence by Halloum, and "[i]t is well settled that hearsay evidence which is admitted without objection and without a motion to strike may be considered by the trier of fact." Hayden v. Chalfant Press, Inc., 281 F.2d 543, 548 (9th Cir. 1960). Even if that was not the case, Theodoseau's statements to Jacob would be admissible "to show [her] state of mind at the time she was evaluating [his] performance." Luckie v. Ameritech Corp., 389 F.3d 708, 716 (7th Cir. 2004); see, e.g., Jones v. Los Angeles Community College District, 702 F.2d 203, 205 (9th Cir. 1983); see also Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1322-23 (11th Cir. 1982).
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after the September 11, 2001 terrorist attacks regarding why his "people" wanted to kill Americans, and why fundamentalist Islamic groups wanted to "destroy western civilization," (2) a question allegedly posed by Callaghan during roughly the same time frame regarding whether Halloum would consider returning "home" permanently, and (3) an email Callaghan circulated to staff members on October 12, 2001 inviting them to "grab a Donut," and cautioning that "chocolate donuts are in short supply as we try and match the Taliban for [best-in-class]." (Tr. at 99-100, 663-64; Exhibit 8.) Callaghan denied asking Halloum why his people wanted to kill Americans or why fundamentalist Islamic groups wanted to destroy western civilization. (Tr. at 550-52, 663-64.) Callaghan's admission that he asked Halloum whether he would ever consider returning to live and work in the Middle East (albeit in a different context than Halloum alleges)3 lends credence to his denial of the other statements Halloum attributed to him (and stands in stark contrast to Halloum's assertion that Callaghan always held these alleged discussions in private precisely so he could later deny them). Cf. United States v. Caramandi, 415 F. Supp. 443, 448 (E.D. Pa. 1976) (noting that a witness's acknowledgment of potentially detrimental matters "lends credence to the substance of [his] testimony").4

Callaghan testified that he asked Halloum about this possibility in a casual conversation on approximately December 10, 2001, shortly after Halloum returned from his extended vacation in the United Arab Emirates, and not immediately after September 11, 2001, as Halloum claims. Halloum had indicated to Callaghan that business in the United Arab Emirates was good ­ that there was a "hive of activity" there. Callaghan, who is frequently asked by others if he would ever consider returning to live and work in Ireland, knew that Halloum still had family in the Middle East, and asked him if he thought he'd ever return to live and work there. Halloum expressed no umbrage or objection to Callaghan's question, but merely responded that he did not believe he would ever do so. (Tr. at 553-54, 665-66.) Halloum, on the other hand, repeatedly cast doubt on his own credibility by, for example, (1) testifying that it never occurred to him that his surreptitious tape recording
4

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In any event, Halloum did not dispute that Callaghan participated in a meeting immediately after September 11, 2001 in which Callaghan and Halloum's subordinates offered their support to Halloum, and Halloum admits that Callaghan accommodated Halloum's modified work schedule to enable him to escort his children home from school for several weeks after the September 11 terrorist attacks. (Tr. at 388-89, 549-50, 1037, 1138-39, 1188-89.) Particularly in light of these undisputed actions in support of Halloum on Callaghan's part, the isolated and ambiguous remarks Halloum attributed to Callaghan are insufficient to support a Title VII claim. Not only has Halloum presented nothing to connect the alleged comments to his receipt of a corrective action plan several months later, but such a connection is refuted by Theodoseau's statement to Jacob that it was in fact Halloum, and not Callaghan, who was "hung up on the 9/11 thing." (Exhibit 46, at p. 4.)5

of other employees might be against Company policy, despite receiving and signing for a copy of the Company guideline prohibiting that conduct at the outset of his employment (Tr. at 443-44, 480, 841-42; Exhibit 256), (2) implying during his testimony in connection with the Company's counterclaim that he did not remember pleading guilty in the criminal case, when he had specifically testified to doing so during his own case-in-chief (Tr. at 483, 1197-1200), (3) inferring that he never received a copy of the Company's relocation guidelines when he had in fact acknowledged receipt of them in writing (Tr. at 1211; Exhibit 257 at ¶ 12), (4) asserting he had never previously seen an exhibit he subsequently admitted receiving well in advance of trial, and (5) testifying that he never received an email transmission from Callaghan to which he actually responded, in writing, almost immediately after receiving it. (Tr. at 194-95, 589-90, 852-55, 894-96, 995-98; Exhibits 41, 260, 302 & 304.) Theodoseau indicated, for example, that shortly after the September 11 terrorist attacks, "Ammar brought [his] team into [a] room" and "tr[ied] to convince [them] that [the] U.S. bombed itself." Exhibit 46, at p. 4. Hess likewise testified to similar conduct by Halloum that Halloum himself made no effort to refute. (Tr. at 1033-34, 1096-97.)
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In short, Callaghan's isolated inquiries and remarks, even if made, would be insufficient to establish a prima facie case of discrimination under Title VII. See Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996) (observing that comments "not tied directly" to an adverse employment action are "weak evidence and not enough to create an inference of . . . discrimination"); Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (holding that an allegedly ageist remark "uttered in an ambivalent manner and . . . not tied directly to [the plaintiff's] termination" was "at best weak circumstantial evidence of discriminatory animus"); Merrick v. Farmers Insurance Group, 892 F.2d 1434, 1438 (9th Cir. 1990) ("`[S]tray' remarks are insufficient to establish discrimination."). II. Halloum Failed to Establish a Prima Facie Case of Discrimination Under the "Indirect" Method of Proof The plaintiff in a Title VII case can also "use circumstantial evidence to establish a prima facie case." Sengupta, 804 F.2d at 1074 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). The Ninth Circuit has recently observed that in order to establish a prima facie case under this approach, "a plaintiff must offer proof . . . that the plaintiff's employer treated the plaintiff differently than a similarly situated employee who does not belong to the same protected class as the plaintiff." Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). The Ninth Circuit has also recently held that "[i]n order to show that the `employees' allegedly receiving more favorable treatment are similarly situated (the fourth element necessary to establish a prima facie case under Title VII), the individuals seeking relief must demonstrate, at the least, that they are similarly situated to those employees in all material respects." Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006) (emphasis added).

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Halloum failed to satisfy this burden. The only individuals with whom he made any effort to compare himself were his three subordinates and the administrative assistant in his department, Hoffman. None of those individuals held the type of group leader position Halloum held. Unlike Halloum, all of these individuals instead were non-supervisory employees. The Company's allegedly different treatment of those individuals is therefore insufficient to establish a prima facie case of discrimination or retaliation under Title VII. See Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) ("Employees in supervisory positions are generally deemed not to be similarly situated to lower level employees."). Accordingly, Halloum failed to establish a prima facie Title VII case under either the direct or circumstantial method of proof. See Bodett v. CoxCom, Inc., 366 F.3d 736, 744 (9th Cir. 2004) (affirming summary judgment for the employer where the plaintiff "failed to present any legitimate `comparator' evidence on her . . . discrimination claim"); Mendoza, 337 F. Supp. 2d at 1182-83 ("Plaintiff fails to establish a prima facie case of disparate treatment because he has not alleged that similarly-situated employees not in his protected class were treated more favorably.").6 Halloum's performance problems discussed infra also preclude him from establishing the second element of his prima facie case ­ that he was qualified for the position he held. See Messick v. Horizon Industries, Inc., 62 F.3d 1227, 1229 (9th Cir. 1995) (noting that in order to satisfy the second element of the prima facie case, an employee must show that he "was performing his job in a satisfactory manner"); Spratt v. Northern Automotive Corp., 958 F. Supp. 456, 462 (D. Ariz. 1996) (holding that the plaintiff "failed to make the requisite showing to establish a prima facie case" where she did not establish that "she was performing satisfactorily"). However, the Court need not necessarily address that issue separately because (as also discussed infra) Halloum's performance deficiencies clearly constitute legitimate nondiscriminatory and nonretaliatory reasons for the Company's actions that Halloum failed to show were a pretext for unlawful discrimination or retaliation. Cf. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 n.4 (7th Cir. 1994) (finding it unnecessary to separately address whether the plaintiff's poor performance precluded him from establishing that he was qualified for his position because that question was "intertwined with the issue
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III.

Halloum Failed to Establish The Legitimate Nondiscriminatory and Nonretaliatory Reasons For the Company's Actions Were Pretextual A. Halloum Failed to Rebut the Company's Evidence Even if Halloum established a prima facie case of discrimination or

retaliation under Title VII, the Company is still entitled to prevail in this action unless Halloum established that the legitimate nondiscriminatory and nonretaliatory reasons the Company articulated for its actions were a pretext for unlawful discrimination or retaliation. See McDonnell Douglas, 411 U.S. at 802; Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000); Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). The Company offered ample evidence of the performance problems Halloum exhibited that prompted the Company's actions and employment decisions. For example, Hess and Townsend testified at length about their perceptions of Halloum's performance. Because Halloum elected not to offer any rebuttal in response to this testimony or any other portion of the Company's case, the testimony of those witnesses establishes without contradiction that Halloum had numerous performance problems, both before and after September 11, 2001. The performance problems Hess and Townsend observed included (1) difficulties grasping his role as a group leader, (2) difficulties interacting with employees in other departments and working in a team environment, (3) difficulties meeting time commitments, (4) poor coaching and communication skills, (5) ineffectiveness at managing or even participating in meetings, which he often failed to attend and, when he did attend, in which he seemed to be disengaged, and (6) excessive absences from the factory, making him unavailable to provide guidance and direction to of whether [he] . . . met his burden of showing that [the employer's] reasons for his discharge [were] pretextual").

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his subordinates. Hess reported his perceptions of these problems to Callaghan on multiple occasions, and Townsend repeatedly coached Halloum himself about his performance problems. (Tr. at 79, 119, 375-76, 529-30, 1028-37, 1039, 1062, 1064-66, 1110-18, 1120-25, 1140, 1155, 1170-71.) The interview summary Halloum himself introduced demonstrates that Theodoseau also observed Halloum's performance problems, which Theodoseau told Jacob were "already on the table" at the time of the September 11 terrorist attacks. (Exhibit 46, at p. 4.) In fact, Theodoseau told Jacob that by the time he joined

Halloum's work group in April 2001, "the word on the street was that Ammar doesn't know what he is doing," although Theodoseau himself apparently felt that this general perception of Halloum's ability was somewhat unfair. (Id. at pp. 1, 4.) Like Hess and Townsend, Theodoseau specifically identified some of Halloum's performance deficiencies. He noted, for example, that Halloum "doesn't know Intel systems [like] his peers do," and observed that "[w]hen Ammar goes to meetings he doesn't come across as being knowledgeable, experienced or capable." (Id. at p. 2.) Theodoseau elaborated on this fact in the following terms: Ammar doesn't have the buy in from peers and team members. Ammar doesn't run meetings very well, he doesn't come across as secure[.] [I]t appears that he lacks Intel meeting knowledge and doesn't understand his business. Paul [Callaghan] does have a point here. * * *

Ammar needs to learn Intel Culture, how to run a meeting, 7 step problem solving, he needs to learn how to multitask in the Intel environment. When he thinks he has too much work he collapses. . . . Sometimes when he speaks at [a] meeting he doesn't come across as knowledgeable. We have all seen this; sometimes he publishes things showing commitments

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that are not real. He needs to understand who the stakeholders are.

In addition, Steve Rogers, who Halloum called as a witness, did not work directly with Halloum, but he did interview Halloum, all of Halloum's subordinates, members of his management chain, and many of his peers in connection with Halloum's allegations to the SEC. Rogers, who did not know either Halloum or Callaghan prior to his investigation of Halloum's allegations, concluded from his investigation that Halloum "did not understand even the most basic things about how Intel does business." (Tr. at 506-07.) These perceptions of Halloum's performance are consistent with other evidence Halloum himself submitted. For example, one of the peer evaluations he introduced indicated that Halloum did not "understand the numbers he [was] reporting," as the result of which his "Spares forecasts [had] been completed with exceedingly less detail over the last year, at a time in which more detail [was] encouraged due to the dynamic environment." (Tr. at 458-59; Exhibit 38.) The same peer indicated that there were a "number of instances" in which Halloum ignored requests for assistance from Company representatives he was supposed to be serving, and criticized Halloum for failing "to take full ownership of all facets of Spares spending, through partnership with area teams and . . . World Materials." When asked about these criticisms during trial, Halloum simply dismissed them as "illegitimate." (Tr. at 458-59; Exhibit 38.) Significantly, Halloum's own testimony confirmed that he was aware of some of the perceptions of his poor performance. He admitted, for example, that prior to September 11, 2001, Nancy Stuart, an important Company management representative, expressed her concerns about Halloum's performance to Callaghan and,

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subsequently, to Halloum himself. (Tr. at 135, 211, 378, 532-33, 641-44.) While Halloum dismissed Stuart's criticisms as a minor issue and, indeed, as "nothing," the written evidence establishes that they were serious enough to play a part in Callaghan's decision to seek guidance from Jacob about the possibility of extending Halloum's probation in July 2001, two months before the terrorist attacks that Halloum claims prompted Callaghan to begin questioning his performance. (Tr. at 137, 401, 537-40, 644,
648-49, 764-65; Exhibit 205.)

Halloum also admitted to being counseled by Callaghan about his performance in October and again in December, 2001, and to being told by another group leader (and thus one of his peers), Glenn Dueck, that he seemed to be absent from work too much, and that he lacked the leadership skills necessary for someone in his position. When asked about Dueck's comments, Halloum once again dismissed them as untruthful, stating that they reflected Dueck's desire "to gain Callaghan[`s] trust [in order] to keep his position." (Tr. at 105, 110, 117, 143-44, 383, 390, 393-97, 556-57, 562-64, 666-68, 674.) Callaghan's perception of the problems with Halloum's performance, which was substantiated ­ and reported -- by other supervisors, peers, and subordinates, clearly constitutes a legitimate, nondiscriminatory and nonretaliatory reason for the Company's actions in this case. See Douglas v. Anderson, 656 F.2d 528, 533 & n.5 (9th Cir. 1981) (noting that "evidence of unsatisfactory job performance" is a "legitimate nondiscriminatory reason for [an employer's] action"); Hogan v. Henderson, 102 F. Supp. 2d 1180, 1194 (D. Ariz. 2000) ("Poor employee performance is the quintessential legitimate, nondiscriminatory reason explaining an employment action."), aff'd sub nom. Hogan v. Runyon, 15 Fed. Appx. 458 (9th Cir. 2001). Moreover, Halloum's own disagreement with Callaghan's assessment of his performance, and with the other supervisors, peers and subordinates who were

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critical of his performance, is insufficient to establish that the Company's stated reasons for its actions were pretextual. See, e.g., Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996) ("[A]n employee's subjective personal judgments of her competence alone do not raise a genuine issue of material fact."); cf. Russell v. AcmeEvans Co., 51 F.3d 64, 68 (7th Cir. 1995) ("Evidence required to contradict the employer's evidence is rarely within the competence of the plaintiff to give . . . .").7 As the Ninth Circuit has observed, the "focus of the inquiry . . . [is] not a determination of whether [the employee] was in fact performing his job adequately, but rather, whether there was sufficient evidence of unsatisfactory performance to be a legitimate concern of his employer." Douglas, 656 F.2d at 533 n.5; see also Mathes v. Furniture Brands International, Inc., 266 F.3d 884, 888 (8th Cir. 2001) (evidence that other employees complained about the plaintiff's performance is sufficient to defeat a claim of pretext, even if some of the complaints were inaccurate). This standard is clearly satisfied in this case, and the Company is therefore entitled to prevail. B. Halloum Is Estopped from Relitigating The Legitimacy of the Company's Actions This Court has previously held that Halloum is collaterally estopped from challenging certain findings made by the administrative law judge (the "ALJ") in

Halloum's receipt of certain appreciation awards -- which were generally given to entire teams of employees, and not merely to Halloum (see Tr. at 615, 658, 1086, 115758) -- is also insufficient to establish that Callaghan's assessment of his performance was a pretext for unlawful discrimination or retaliation. See Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 528 (3d Cir. 1992) ("Pretext is not established by virtue of the fact that an employee has received some favorable comments in some categories or has, in the past, received some good evaluations."); Anderson v. Stauffer Chemical Co., 965 F.2d 397, 403 (7th Cir. 1992) ("The fact that an employee does some things well does not mean that any reason given for his firing is a pretext for discrimination.").

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Halloum's Sarbanes-Oxley case against the Company. See, e.g., Order entered March 31, 2005, at 6 ("The Court adopts the ALJ's finding that secretly taping conversations is grounds for discharge at Intel, and that Intel would have discharged Plaintiff as soon as it found out about this conduct. Plaintiff is collaterally estopped from further litigating this issue."). In this respect, the Court noted that "the ALJ found by clear and convincing evidence that Intel would have modified Plaintiff's Corrective Action Plan on August 19, 2002 for legitimate business reasons," and the Court specifically adopted that finding "as a matter of law." Id. The Court further noted that this finding

encompassed the following three legitimate business reasons: (1) "First, beginning in January 2002, Plaintiff had surreptitiously taped conversations with other Intel employees in violation of company policy." "Second, when Intel began its Open Door investigation in January 2002 into Plaintiff's allegations that Callaghan was harassing him and treating him unfairly, Plaintiff improperly attempted to coerce his subordinates into giving only positive reviews of him."8

(2)

Theodoseau's interview is instructive on this point. Among other things, Theodoseau told Jacob that Halloum "pressured" him to "say all these positive things" on Halloum's 360° feedback, and also to "say that [the plaintiff] has been discriminated against to [the] EEOC." (Exhibit 46, at p. 5.) Theodoseau also reported that he was concerned about his job because Halloum "indirectly said, if you are not on my side, then you will not get what we agreed to in [your annual performance review]," and in doing so made it clear that Halloum could "put stuff down in [the evaluation] against [Mr. Theodoseau]." (Id.) Hess and Townsend likewise reported receiving similar pressure from Halloum. (Tr. at 1039-47, 1079-84, 1087, 1090, 1129-37, 1172-78, 1186-87; Exhibits 213 & 214.) In this regard, Halloum's "intimidation and mistreatment of subordinated employees," standing along, constituted "an adequate non-discriminatory reason for his discharge," let alone for the employment actions the Company actually took. Kelliher v. Veneman, 313 F.3d 1270, 1276 (11th Cir. 2002).

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(3) Id. at 5.

"Third, Plaintiff had consistent difficulty meeting performance expectations at Intel." The Administrative Review Board of the United States Department of

Labor (the "Board") has since affirmed the ALJ's decision on which the Court based its collateral estoppel ruling. (Exhibit 298.)9 With respect to the ALJ's finding that Halloum "had consistent difficulty meeting performance expectations at Intel," the Board agreed that the Company had demonstrated by clear and convincing evidence that Halloum "did not integrate himself into Intel's workforce and that he failed to perform up to expectations," and that "[t]hese were sufficient, non-discriminatory reasons to seek his termination." (Id. at 8.) 10 The Board further noted that Halloum's performance deficiencies included

The Court took the admission of Exhibit 298 under advisement. (See Tr. at 44849.) However, the Court not only should admit this exhibit, but can and should take judicial notice of it. See FED. R. EVID. 201(d) ("A court shall take judicial notice [of adjudicative facts] if requested by a party and supplied with the necessary information."); United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) ("[W]e may take notice of proceedings of other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.") (internal quotation marks and citation omitted); Black v. Arthur, 18 F. Supp. 2d 1127, 1131 (D. Or. 1998) ("[C]ourts are allowed to take judicial notice of matters in the general public record, including records and reports of administrative bodies and records of prior litigation . . . ."), aff'd, 201 F.3d 1120 (9th Cir. 2000). While the Board did not reach the issue because the elements of a prima facie case differ under Sarbanes-Oxley (see Exhibit 298, at p.5), these findings also preclude Halloum from establishing that he was qualified for his position, as required under the second element of his prima facie discrimination case. Compare Exhibit 298, at p.8 (finding that Halloum "failed to perform up to expectations") with Warfield v. Lebanon Correctional Institution, 181 F.3d 723, 729 (6th Cir. 1999) ("In order to be `qualified' for her position, [an employee] must demonstrate that she was meeting her employer's legitimate expectations and was performing to her employer's satisfaction.").
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(1) "missed meetings," (2) "absences from work," (3) "failure to perform duties expected of a group leader," (4) "failure to understand Intel's business operations," (5) "not meeting job expectations for his grade," (6) "failure to comprehend Intel's accounting system," and (7) having his "work shifted to other group leaders." (Id. at 8.) These findings should be accorded no less collateral estoppel effect than the ALJ's comparable findings previously adopted by this Court as a matter of law. Indeed, the findings of the Board and the ALJ are particularly compelling here because the Company is not required to establish the legitimate reasons for its actions by clear and convincing evidence in this case. See White v. Washington Public Power Supply Sys., 692 F.2d 1286, 1289 (9th Cir. 1982) (rejecting the proposition that the employer in a Title VII case has "the burden of proving it did not discriminate . . . with `clear, cogent and convincing' evidence"). In fact, the burden of proof in this case "remains with the plaintiff at all times." Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003). Halloum nevertheless has argued that the ALJ's and the Board's findings should not be given collateral estoppel effect because they have been appealed. This argument, implicitly but necessarily and properly rejected by this Court at the time of its March 31, 2005 ruling, is an incorrect statement of the governing law. See Robi v. Five Platters, Inc., 838 F.2d 318, 327 (9th Cir. 1988) ("[A]ppeals in no way affect the `firmness' of [decisions] for purposes of issue preclusion."); Tripati v. Henman, 857 F.2d 1366, 1367 (9th Cir. 1988) (discussing the "established rule in the federal courts" that a decision "retains all of its res judicata consequences pending decision of the appeal"); Home Diagnostics, Inc. v. LifeScan, Inc., 120 F. Supp. 2d 864, 867 (N.D. Cal. 2000) ("A final judgment retains its preclusive effect despite pendency of an appeal."). In any event, the ALJ's and the Board's findings in the Sarbanes-Oxley case were borne out by the evidence presented at the trial in this case. On either basis,

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the Company is entitled to prevail on Halloum's Title VII claims.

2 III. Conclusion 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 For the foregoing reasons, the Company respectfully requests that it be awarded judgment in its favor on Halloum's remaining claims. RESPECTFULLY SUBMITTED this 28th day of July, 2006. RYLEY CARLOCK & APPLEWHITE s/ Michael D. Moberly Michael D. Moberly Andrea G. Lisenbee One N. Central Ave., Ste. 1200 Phoenix, AZ 85004-4417 Attorneys for Defendant/Counterclaimant

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CERTIFICATE OF SERVICE I hereby certify that on July 28, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing. I hereby certify that on July 28, 2006, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System: Ammar Halloum P.O. Box 26662 Tempe, AZ 85285 Plaintiff/Counterdefendant Sawsan Hamad 260 W. Buena Vista Dr. Tempe, Arizona 85284 Counterdefendant s/ Michael D. Moberly Michael D. Moberly

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