Free Response in Opposition to Motion - District Court of Arizona - Arizona

Mark F. Brinton (SBA 7674) Law Offices of Mark F. Brinton 1745 South Alma School Road, Suite 100 Mesa, AZ 85210-3010 (480) 756-2256 Counsel for Plaintiff Joyce Corrales IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COURT OF ARIZONA Joyce Corrales, Plaintiff, vs. Chase Bankcard Services, Inc. Defendant CV 02 - 02157 PHX - SRB PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SANCTIONS

Plaintiff Joyce Corrales, through her undersigned counsel, hereby submits her response in opposition to Defendant's Motion for Sanctions. A) Plaintiff's difficulty in obtaining her Medical Records obstructed her ability to deliver them to Defendant. Through Ceridian LifeWorks Services (LifeWorks), in affiliation with Counseling & Family Resources, Ltd./EAP Preferred, Plaintiff received therapy for the emotional anguish she suffered at the hands of Defendant's Chase Bright, which trauma she testified about in her deposition. Ceridian demanded that Corrales personally sign the release in order to release her records. (See Exhibit A (1-2), attached hereto.) This

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demand created an insurmountable hurdle to the timely release of Corrales's records because of the work demands created by her employment. Ultimately, however,

Corrales succeeded in persuading her employer to give her the time necessary to sign the release on 5 July 2006 and to obtain the records on July 6, at which time she mailed a copy to her undersigned counsel. He shared the records with Defendant on or about July 14th. B) Defendant's request for dismissal is draconian. Defendant claims that "imposing the ultimate sanction" is necessary because Corrales's failure to produce evidence of her emotional anguish (in response to its letter of March 29) has "prejudiced the defense." Even if Corrales had been able to obtain her records and deliver them to Defendant within several days thereafter, the discovery period would have already elapsed, and short of receiving Corrales's stipulation to extend the discovery time (which she readily would have granted), Defendant would have no additional time for a deposition, presuming it desired such. Indeed, extending the discovery time is the correct remedy to Defendant's claim of prejudice, but by obtaining that remedy, Defendant would deprive itself of the prejudice it now claims. Defendant's request for the sanction of dismissal is premised on the mistaken belief that Corrales's therapy records are the sine qua non of her damage
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claim of emotional distress. Defendant arrives at that mistaken premise because of two misconceptions: One) she views Corrales's sworn deposition testimony as inadmissible, i.e., "she has provided no proof of damages," (Motion for Sanctions, page three, lines 3-4) because, she claims, Plaintiff's testimony is "self-serving." By so claiming, Defendant has overlooked our Ninth Circuit's holding of McGinest v. GTE Service Corp., 360 F.3d 1103, 1113, footnote five (9th Cir. 2004), in which our Appellate Court explains that ". . . the Supreme Court has instructed that at the summary judgment stage, `the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. . . (W)hen ruling on a summary judgment motion, the district court is not empowered to make credibility determinations or weigh conflicting testimony,'" While the therapy records permit Corrales to buttress her claim of emotional anguish, their absence does not preclude her from asserting the claim for damages; and Two) One does not need diagnosed problems to support a claim for sexual harassment. McGinest, Id. (holding that "...the harassment need not cause diagnosed psychological injury . . . It is enough `if such hostile conduct pollutes the victim's workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position.'"
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Conclusion Under the circumstances, Corrales's inordinate difficulty in producing her therapy records does not warrant the draconian remedy of dismissal. Rather, an extension of time for additional discovery is the appropriate remedy. If any sanction is appropriate, it should rest on the shoulders of the undersigned in the form of compensating Defendant for a portion of its attorney fees for his improper failure to keep Defendant apprised of Corrales's difficulty in obtaining her records. Accordingly, Plaintiff respectfully requests the Court to deny Defendant's motion for the sanction of dismissal. DATED THIS 14th day of August 2006 Law Office of Mark F. Brinton /s/ Mark F. Brinton Mark F. Brinton Counsel for Plaintiff Corrales I hereby certify that on the 14th day of August 2006, I electronically transmitted the foregoing document to the Clerk's office using the CM/ECF System. /s/ Mark F. Brinton

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