Opinion
NO. CIV. S-09-1973 LKK/CMK
09-19-2011
ROSLYN MCCOY, Plaintiff, v. HONORABLE JOHN McHUGH, SECRETARY OF THE ARMY, Defendant.
PRETRIAL CONFERENCE ORDER
[TENTATIVE]
Pursuant to court order, a Pretrial Conference was held in Chambers on October 3, 2011. LARRY A. ORGAN and BARBARA E. FIGARI appeared as counsel for plaintiff; TODD A. PICKLES and LYNN TRINKA ERNCE appeared as counsel for defendants. After hearing, the court makes the following findings and orders:
I. JURISDICTION/VENUE
Jurisdiction is predicated upon 28 U.S.C. § 1331, as this is an action arising under the federal Rehabilitation Act. Venue is predicated upon 28 U.S.C. § 1391(3) (2), as defendant is an officer of the United States, and a substantial part of the events occurred in Sacramento. The court has heretofore found both jurisdiction and venue proper and confirms those orders.
II. JURY/NON-JURY
The trial will be by jury.
III. UNDISPUTED FACTS
The parties have stipulated that the following facts are undisputed:
GENERAL FACTS RELEVANT TO ALL CAUSES OF ACTION
1. Plaintiff began working at the Army Corps of Engineers in May 2005.
2. Plaintiff was hired through the Workforce Recruitment Program, which provided funding for units within the Department of the Defense to hire persons with disabilities for limited 80-day terms of employment.
3 . Plaintiff applied for a position through the program, self-designating as having a learning disability, and accepted a position as an administrative support assistant in the Equal Employment Opportunity ("EEO") Office in Sacramento.
4. Plaintiff has a severe form of the learning disability dyslexia, which makes it difficult for her to fully comprehend written words.
5. Plaintiff's disability substantially limits her ability to read and comprehend.
6. Plaintiff did well in school, graduating from Humboldt State College in 2005 with a degree in Psychology, but needed to spend significantly more time studying than students without her disability.
7. Prior to beginning her work in the EEO office, Plaintiff spoke to Linda Brown, who was the manager of the EEO office, and discussed with Brown Plaintiff's disabilities and the accommodations she would be provided.
8. Also in the EEO Office was Barbara Dwyer, an EEO Specialist, and there were also other individuals who had collateral duties for the EEO office.
9. Plaintiff, Ms. Brown, and Ms, Dwyer were the only individuals who worked in the EEO Office, and Ms, Dwyer and Plaintiff were the only individuals supervised by Ms. Brown.
10. Ms. Brown was Plaintiff's supervisor during the entire time period of her employment in the EEO Office.
11. At the end of Plaintiff's 80-day appointment under the Workforce Recruitment Program, Brown converted Plaintiff to a 2-year "excepted" or special appointment with the Corps.
12. Plaintiff's new position was a Program Support Clerk, in which she primarily provided clerical and administrative support to the EEO Office, focused primarily on special emphasis programs.
13. In her capacity as the Program Support Clerk, she assisted Ms. Brown, Ms. Dwyer, and the Special Emphasis Program Managers, who did not work in the EEO Office but devoted up to 20% of their time as collateral duty to managing special emphasis programs, such as those for individuals with disabilities, or minorities.
14. Plaintiff began her. probationary period in this position on October 1, 2005.
15. On April 7, 2006, Plaintiff and Ms, Dwyer were entering the Array Corps office at the same time as A.R. Smith, another employee of the Corps.
16. Mr. Smith is African-American.
17. In August 2006, Plaintiff was involved in making changes to a flyer for the Diversity Jubilee, an event sponsored by the EEO Office.
18. Some of the contents of the flyer were inaccurate, which was discovered by Ms. Brown while she was meeting with Debora Richert, the Chief of Staff, on or about August 23, 2006. Ms. Richert instructed Ms. Brown to schedule a meeting between Ms. Richert, Ms. Brown, Plaintiff, and Ms. Dwyer to discuss the error in the flyer.
19. On August 23, 2006, Chief of Staff Richert held a meeting in her office, attended by Plaintiff, Ms. Dwyer and Ms, Brown, in which the errors in the Diversity Jubilee flyer were discussed. During the meeting, Chief of Staff Richert asked Plaintiff whether she was expected to proofread her own work and Plaintiff responded, "Ho."
20. On or about August 23, 2006, Ms, Brown wanted to reward the initiative shown by her staff in setting up meetings with volunteers for the Diversity Jubilee event, and inquired separately of Plaintiff and Ms. Dwyer as to whose idea it was to set up meetings with the volunteers.
21. Both Plaintiff and Ms. Dwyer separately claimed credit for the idea.
22. On September 7, 2006, Ms. Brown gave notice to Plaintiff that her employment was terminated effective September 15, 2006. The notice stated:
You are being terminated because of your unsatisfactory conduct including making a false statement to the Chief of Staff during a meeting on 23 August 2006 wherein you stated "you were not required to proofread your work"; on 24 August 2006, you made a false statement to me when you said that it was your idea to meet with Diversity Jubilee volunteers prior to the event; and your inappropriate comment to a member of the Safety Office on 7 April 2006.
23. Plaintiff was in a two-year special appointment position.
UNDISPUTED FACTS RELEVANT TO PLAINTIFF'S EMPLOYMENT
DISCRIMINATION BASED ON DISABILITY CLAIM
1. Initially, Ms. Brown proofread Plaintiff's work product.
UNDISPUTED FACTS RELEVANT TO PLAINTIFF'S RETALIATION CLAIM
1. In late spring of 2006, Plaintiff met with Human Resources representative Ted Surratt to discuss her job description.
2. Plaintiff met with Chief of Staff Debora Richert on August 9, 2006.
3. Ms. Brown knew that one of the subjects discussed in the August 9, 2006 meeting between Plaintiff and Chief of Staff Richert was Ms. Brown's "management style."
IV. DISPUTED FACTUAL ISSUES
GENERAL DISPUTED FACTUAL ISSUES RELEVANT TO ALL CLAIMS
1. Whether or not Ms. Brown believed that, as of August 23, 2006, Plaintiff was responsible for proofreading Plaintiff's final work product (This is relevant to all claims because Ms. Brown alleged that Plaintiff made an untrue statement regarding this issue and asserts this statement as one of the non-retaliatory and non-discriminatory bases for the decision to terminate Plaintiff's employment,)
2. Whether or not Ms. Brown believed that Plaintiff attempted to take credit for a co-worker's work related to setting up a meeting with volunteers for Diversity Jubilee, {This is relevant to all claims because Ms. Brown alleged that Plaintiff made untrue statements regarding this issue and asserts this as one of the non-retaliatory and non-discriminatory bases for the decision to terminate Plaintiff.)
3. Whether or not the alleged offensive comment made by Plaintiff to Mr. A.R. Smith contributed to Ms. Brown's decision to terminate Plaintiff's employment. (This is relevant to all claims because Defendant alleges that this statement was one of the non-retaliatory and non-discriminatory bases for the decision to terminate Plaintiff's employment.)
4. Whether or not the reasons stated by Ms. Brown in the notice to Plaintiff that she was terminated, are false. (This is relevant to whether or not Plaintiff's disability and/or protected activity contributed to the decision to terminate Plaintiff.)
5. Whether or not Plaintiff's employment would have continued past September 30, 2007. (This is relevant to whether Plaintiff would be entitled to back and front pay damages after September 30, 2007.)
6. Whether or not Ms, Brown approached Human Resources representative Ted Surratt about making Plaintiff's position permanent and to promote her approximately one month prior to the termination of Plaintiff's employment. (This is relevant to whether Plaintiff would be entitled to back and front pay damages after September 30, 2007.)
7. Whether or not Plaintiff normally used special software that read documents to her aloud in order to help her understand the words. She normally used four types of software to read and write. (This is relevant to Plaintiff's claim for disability discrimination, and relevant to whether Ms. Brown's statements that Plaintiff was to proofread her own work were false.)
8. Whether or not, because of her disability, it takes Plaintiff significantly longer to read and comprehend a document than a person without her condition. (This is relevant to Plaintiff's claim for disability discrimination, and relevant to whether Ms. Brown's statements that Plaintiff was to proofread her own work were false.)
9. Whether or not Mr. Smith heard Plaintiff say to him "where are you going, we don't let your kind in here." (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false.)
10. Whether or not, in her deposition in June 2010, Plaintiff could not recall her exact words to Mr. Smith on April 9, 2006. (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false.)
11. Whether or not, at the fact-finding conference in May 20 07, Plaintiff testified she said to Mr. Smith on April 9, 2006, "they let peoples like you in here." (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false.)
12. Whether or not Mr. Smith prepared a memorandum recording the details of the conversation, which he recalls preparing that same day as the incident on April 9, 2006. (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false.)
13. Whether or not Mr. Smith later sent a copy to Ms. Brown because he wanted to let Brown know of the incident as she was Plaintiff's supervisor and because Plaintiff worked in the EEO office. (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false.)
14. Whether or not, after learning about the incident, Ms. Brown counseled Plaintiff on the inappropriate remark, finding her explanation not credible and nonsensical. (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false.)
15. Whether or not, in June 2006, Plaintiff received a performance evaluation from her supervisor, Linda Brown. In this evaluation, Plaintiff received an overall rating of "Successful," with no rating less than "Successful" in any of the six subcategories. In the evaluation, Ms. Brown commented, "Roslyn does an excellent job of staying on top of several projects at the same time. Roslyn is always looking for a better, faster, easier way to complete assignments. (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false. This is also relevant to Plaintiff's damages, specifically whether she would have been promoted and/or retained by Defendant absent a discriminatory or retaliatory termination.)
16. Whether or not Ms. Brown met with both Ms. Dwyer and Plaintiff together, and asked them again who it was that set up the volunteer meeting given that they both claimed credit it. (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false.)
17. Whether or not Ms. Dwyer indicated that it was her idea, and Plaintiff remained silent for a long period, and Plaintiff again remain silent when Ms. Brown asked her directly why she claimed credit for work that Ms. Dwyer was claiming credit for. (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's, termination are false.)
18. Whether or not, thereafter, Ms. Brown decided to terminate Plaintiff's employment during the probationary period. (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false.)
19. Whether or not Plaintiff's position would not automatically convert to a permanent position at the end of that term. (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false. This is also relevant to Plaintiff's damages, specifically whether she would have been promoted and/or retained by Defendant absent a discriminatory or retaliatory termination.)
20. Whether or not Ms. Brown stopped proofreading Plaintiff's work product at some point prior to the termination of Plaintiff's employment unless Plaintiff requested that Ms. Brown review Plaintiff's work. (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false.)
21. Whether or not Plaintiff and Ms. Dwyer testified that they were treated similarly by Ms. Brown, as did some of the Special Emphasis Program Managers who had interactions with Ms. Brown. (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false, whether Plaintiff was discriminated against, and whether Plaintiff was retaliated against. This is also relevant to Ms. Brown's alleged animus, and whether she treated similarly situated employees differently.)
22. Whether or not, a few months after Plaintiff's termination, Ms. Brown proposed that Ms. Dwyer's employment be terminated as well. (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false, whether Plaintiff was discriminated against, and whether Plaintiff was retaliated against. This is also relevant to Ms. Brown's alleged animus, and whether she treated similarly situated employees differently.)
23. Whether or not Ms. Dwyer is disabled. (This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false, whether Plaintiff was discriminated against, and whether Plaintiff was retaliated against. This is also relevant to Ms. Brown's alleged animus, and whether she treated similarly situated employees differently.)
24. Whether or not Ms. Brown ever inquired of Plaintiff or Ms. Dwyer as to what was said in the meeting with Ms. Richert on August 9, 2006. This is relevant to all claims, specifically as to whether Defendant's stated reasons for Plaintiff's termination are false, whether Plaintiff was discriminated against, and whether Plaintiff was retaliated against. This is also relevant to Ms. Brown's alleged animus, and whether _ retaliated against Plaintiff for making a complaint.)
DISPUTED FACTUAL ISSUES RELEVANT TO PLAINTIFF'S EMPLOYMENT
DISCRIMINATION BASED ON DISABILITY CLAIM
1. Whether or not Plaintiff's disability was a motivating reason for Ms. Brown's decision to terminate her. (This is relevant to whether Plaintiff's disability contributed to the decision to terminate Plaintiff's employment.)
2. Whether or not Ms. Brown told a co-worker in July or August 2005, that Plaintiff was not of average intelligence, nor could she read or write, or words to that effect. (This is relevant to whether Plaintiff's disability contributed to the decision to terminate Plaintiff's employment.)
3. Whether or not Ms, Brown referred to Plaintiff in July or August 2005, as "mentally handicapped." (This is relevant to whether Plaintiff's disability contributed to the decision to terminate Plaintiff's employment.)
4. Whether or not Ms. Brown stated in July or August 2005, that each of her employees was "handicapped by one form of stupidity or another." (This is relevant to whether Plaintiff's disability contributed to the decision to terminate Plaintiff's employment.)
5. Whether or not Ms. Brown expressed anger and resentment about the time and effort she had to give her own daughter, who Plaintiff claims Ms. Brown referred to as "mentally retarded" or "mentally ill." (This is relevant to whether Plaintiff's disability contributed to the decision to terminate Plaintiff's employment.),
6. Whether or not Ms. Brown concluded she could not trust Plaintiff's judgment or her candor because of Plaintiff's two allegedly false statements in August 2006, coupled with Plaintiff's earlier allegedly racially offensive statement to Mr. Smith in April 2 006.
7. Whether or not Ms. Brown terminated Plaintiff's probationary employment due to Ms. Brown's alleged lack of trust in Plaintiff's judgment and her candor.
8. Whether or not Ms, Brown followed correct government procedure in disciplining Plaintiff and whether government EEO officials followed correct procedure in addressing Plaintiff's complaints,
9. Whether or not Plaintiff and Ms. Dwyer testified that they were treated similarly by Ms. Brown, as did some of the Special Emphasis Program Managers who had interactions with Ms. Brown.
10. Whether or not, a few months after Plaintiff's termination, Ms. Brown proposed that Ms. Dwyer's employment be terminated as well.
11. Whether or not Ms. Dwyer is disabled.
DISPUTED FACTUAL ISSUES RELEVANT TO PLAINTIFF'S RETALIATION
CLAIM
1. Whether or not Plaintiff raised concerns about a hostile work environment and/or disability discrimination during Plaintiff's meeting with Ms. Richert in August 2006. (This is relevant to the issue of whether Plaintiff engaged in protected activity.)
2. Whether or not Ms. Brown became upset with Plaintiff for "going over Ms. Brown's head" by talking to a member of Human Resources about Plaintiff's position, description in May or June 2006. (This is relevant to Plaintiff's retaliation claim because it relates to whether Ms. Brown harbored retaliatory animus.)
3. Whether or not Ms. Brown told Plaintiff that "if she, [Ms. Brown] were any other supervisor" Plaintiff would have been fired. (This is relevant to Plaintiff's retaliation claim because it relates to whether Ms. Brown harbored retaliatory animus.)
4. Whether or not, prior to Ms. Brown's decision to terminate Plaintiff's probationary employment, Ms. Brown knew that Plaintiff had allegedly complained about a hostile work environment and disability discrimination during the August 9, 2 006 meeting with Chief of Staff Richert. (This is relevant to whether Plaintiff's alleged protected activity contributed to the decision to terminate Plaintiff.
V. NON-DISCOVERY MOTIONS TO THE COURT AND RESOLUTION
Plaintiff moved for IFP status, which was granted and appointment of counsel, which was denied. Plaintiff moved for a default judgment, which was denied, and the Army Corps moved to dismiss the First Amended Complaint, which was mooted by plaintiff filing an Amended Complaint omitting the Army Corps, and naming only McHugh, Secretary of the Army, as defendant. Defendant moved to dismiss the Declaratory Judgment claim of the Second Amended Complaint, which was granted with prejudice, and to strike and dismiss the Third Amended Complaint, which was granted. Defendant moved for summary judgment, which was granted as to compensatory damages for the retaliation claim, and otherwise denied.
The plaintiff now claims that later Ninth Circuit determinations suggest that the court's original ruling was erroneous. Despite the fact that law and motion has been cut off, the court will grant the plaintiff fifteen (15) days to file a motion for reconsideration and the court will hear the matter on December 5, 2011 at 10:00 a.m.
VI. DISPUTED EVIDENTIARY ISSUES
Plaintiff intends to move in limine, pursuant to Fed. Rule of Evidence 403, to exclude evidence of the details of the comment made by Plaintiff to A.R. Smith on April 7, 2006 and to limit references to such comment to the phrase: "inappropriate comment." The phrase "inappropriate comment" is the phrase used by Linda Brown in Plaintiff's notice of Termination. The details of the comment were not stated in the Notice of termination and the danger of prejudice associated with these comments substantially outweighs their probative value.
Plaintiff anticipates that issues regarding production of evidence during discovery, document retention, and compliance with document retention policies will also constitute evidentiary issues to be addressed. Plaintiff anticipates addressing these issues through jury instructions. Plaintiff anticipates that Defendant will move to exclude testimony related to Plaintiff's emotional distress, specifically, witnesses who will testify about their observations of Plaintiff before and after her termination. Plaintiff suggests that this issue be resolved by motion in limine.
The Secretary will move to exclude any expert opinion testimony to be offered on behalf of Plaintiff, including testimony by her mother, Lois McCoy, her son, Jonathan McCoy, and her friend, Polly Baumbauer, and by any other individual identified on Plaintiff's Witness List [D.E. 85], as well as exhibits containing similar evidence. See Pltf's Proposed Exhibits 76 and 80. Plaintiff had at one point identified her mother, son, and friend as potentially providing expert witness testimony but failed to present any reports for them under Rule 26(a) (2).. After the Secretary objected, Plaintiff withdrew the designations for Lois McCoy and Polly Baumbauer, and also failed to produce a report for Jonathan McCoy. Accordingly, Plaintiff is barred from eliciting expert testimony or opinions from these individuals at trial. See Fed.R.Civ.P. 26(a)(2); Fed.R.Civ.P. 37(c)(1).
The Secretary will move to exclude or otherwise limit Plaintiff's testimony regarding emotional distress to her stipulation that she suffered "garden variety" emotional distress. In particular, in response to the Secretary's notice that he would be seeking an independent medical (physiological) examination, Plaintiff conceded she is only seeking garden variety emotional distress. She also did not oppose summary judgment on this point. Accordingly, the jury should be instructed that she is seeking only "garden variety" emotional distress, and Plaintiff should be limited to only her own testimony on this point.
The Secretary will move to limit Plaintiff's compensatory damages to "garden variety" emotion distress, and to exclude any other form of compensatory damages, based on her stipulation to that effect and based on the absence of any competent testimony or evidence with respect to any other compensatory damages. This includes Plaintiff's apparent intention to claim as damages certain dental expenses, as indicated by proposed exhibits identified on Plaintiff's Exhibit List [DE 84] . See, e.g., Pltf's Proposed Exhibits 61, 62. The Secretary previously objected to Plaintiff's designation of her dentist as an expert, and Plaintiff subsequently withdrew that designation and has failed to designate any expert or provide an expert report with respect to any alleged dental harm caused by the alleged discriminatory termination. Accordingly, Plaintiff has no admissible evidence showing any causal connection and such evidence must be excluded.
The Secretary will move to exclude testimony from Helen Warren and Elaine Woodhall, both of whom are listed as witnesses on Plaintiff's Witness List. See DE 85, at Nos. 16 and 18. The Secretary propounded discovery on Plaintiff to identify individuals with knowledge of facts relevant to Plaintiff's claims. Neither of these individuals was ever identified as a potential witness by Plaintiff in her discovery responses nor in any supplemental responses. Plaintiff's failure to timely disclose the identities of these individuals during discovery forecloses their appearance at trial. See Fed.R.Civ.P.33; Fed.R.Civ.P. 37(c)(1). Further, Ms. Warren appears to relate to the declaratory relief claim for a different administrative complaint; the subject of which was dismissed from this action by the Court's order. See DE 62. Accordingly, Ms. Warren's proffered testimony is irrelevant.
Plaintiff has identified numerous documents that do not reference a Bates number. Until the Secretary has the opportunity to determine whether these documents have previously been produced by Plaintiff in response to the Secretary's discovery requests, or were otherwise made available to the Secretary through discovery or were part of the administrative record, the Secretary reserves the right to object to any documents or.evidence that was not previously produced to the Secretary in discovery. See Fed,R.Civ.P.34; Fed.R.Civ.P. 37(c) (1) .
Plaintiff has identified the entirety of the testimony before the Administrative Law Judge, as well as affidavits or statements from various individuals that Plaintiff has also identified as her witnesses. See Plaintiff's Proposed Exhibit List [DE 84], at Ex. Nos. 58, 59, 78, 79, 81-82. The Secretary reserves the right to object to any particular testimony or affidavit by Plaintiff's witnesses on the basis of hearsay or any other applicable evidentiary basis prior to or at the time of trial.
Plaintiff has identified a significant number of witnesses that appear to be character witnesses only and/or related to the issue of Plaintiff's emotional state, and will not testify to any percipient knowledge about the alleged discrimination and retaliation in connection with her termination. See Plaintiff's Witness List [DE 85], Nos. 1, 4, 8, 9, 21, 15, 17. The Secretary reserves the right to challenge all or some of these witnesses on the basis of the relevance of their testimony as well as that their testimony will be cumulative and unduly burdensome.
Plaintiff has identified as potential exhibits letters of recommendation unrelated to any issues in the case, including her initial appointment, and letters to employers subsequent to her termination. See Plaintiff's Proposed Exhibit List [DE 84], at Ex. Nos. 34, 35, 37, 38, and 39. The Secretary will move to exclude these documents as hearsay and irrelevant.
The Secretary will move to exclude and have Plaintiff destroy or return all copies of an attorney-client privileged document that was inadvertently produced to Plaintiff in discovery. The Secretary had previously identified the document, and withheld it from discovery, but another copy was inadvertently produced. On September 21, 2011, the Secretary informed Plaintiff of this issue after reviewing Plaintiff's exhibit list, and requested Plaintiff destroy or return the document. Plaintiff has not responded to date. Plaintiff's possession and use of the document is foreclosed. See Fed.R.Evid. 702; Fed.R.Civ.P. 26(b)(5)(B).
The parties shall file cross motions in limine to be heard on the same date as the motion to reconsider.
VII. SPECIAL FACTUAL INFORMATION
None.
VIII. RELIEF SOUGHT
Plaintiff seeks:
1. Back pay,
2. Compensatory damages,
3. Injunctive relief, including sanitization of plaintiff's personnel file and a request for a positive referral,
4. Attorneys' fees, costs of suit and interest. Defendant seeks judgment in its favor and costs.
IX. POINTS OF LAW
(a) The elements, standards, and burdens of proof for making a federal Rehabilitation Act claim.
(b) The elements, standards, and burdens of proof for making a retaliation claim under the federal Rehabilitation Act.
(c) The legal standard for awarding compensatory damages (on the discrimination claim), and back pay.
ANY CAUSES OF ACTION OR AFFIRMATIVE DEFENSES NOT EXPLICITLY ASSERTED IN THE PRETRIAL ORDER UNDER POINTS OF LAW AT THE TIME IT BECOMES FINAL ARE DISMISSED, AND DEEMED WAIVED.
X. ABANDONED ISSUES
None.
XI. WITNESSES
Plaintiff anticipates calling the following witnesses:
See attachment "A".
Defendant anticipates calling the following witnesses:
See attachment "B" .
Each party may call a witness designated by the other.
A. No other witnesses will be permitted to testify unless:
(1) The party offering the witness demonstrates that the witness is for the purpose of rebutting evidence which could not be reasonably anticipated at the Pretrial Conference, or
(2) The witness was discovered after the Pretrial Conference and the proffering party makes the showing required in "B" below.
B. Upon the post-Pretrial discovery of witnesses, the attorney shall promptly inform the court and opposing parties of the existence of the unlisted witnesses so that the court may consider at trial whether the witnesses shall be permitted to testify. The evidence will not be permitted unless:
(1) The witnesses could not reasonably have been discovered prior to Pretrial;
(2) The court and opposing counsel were promptly notified upon discovery of the witnesses;
(3) If time permitted, counsel proffered the witnesses for deposition;
(4) If time did not permit, a reasonable summary of the witnesses' testimony was provided opposing counsel.
XII. EXHIBITS. SCHEDULES AND SUMMARIES
Plaintiff contemplates the following by way of exhibits: See attachment "C".
Defendant contemplates the following by way of exhibits: See attachment "D".
A. No other exhibits will be permitted to be introduced unless:
(1) The party proffering the exhibit demonstrates that the exhibit is for the purpose of rebutting evidence which could not be reasonably anticipated at the Pretrial Conference, or
(2) The exhibit was discovered after the Pretrial Conference and the proffering party makes the showing required in paragraph "B," below.
B. Upon the post-Pretrial discovery of exhibits, the attorneys shall promptly inform the court and opposing counsel of the existence of such exhibits so that the court may consider at trial their admissibility. The exhibits will not be received unless the proffering party demonstrates:
(1) The exhibits could not reasonably have been discovered prior to Pretrial;
(2) The court and counsel were promptly informed of their existence;
(3) Counsel forwarded a copy of the exhibit(s) (if physically possible) to opposing counsel. If the exhibit(s) may not be copied, the proffering counsel must show that he has made the exhibit(s) reasonably available for inspection by opposing counsel.
As to each exhibit, each party is ordered to exchange copies of the exhibit not later than fourteen (14) days from the date of this Pretrial Order. Each party is then granted fourteen (14) days to file with the court and serve on opposing counsel any objections to said exhibits. In making said objections, the party is to set forth the grounds for the objection. As to each exhibit which is not objected to, it shall be marked and received into evidence and will require no further foundation. Each exhibit which is objected to will be marked for identification only.
In addition to electronically filing said objections, if any, the objections must be submitted by email, as an attachment in Word or WordPerfect format, to: arivas@caed.uscourts.gov.
The attorney for each party is directed to appear before and present an original and one (1) copy of said exhibit to Ana Rivas, Deputy Courtroom Clerk, not later than 10:30 a.m. on the date set for trial. All exhibits shall be submitted to the court in binders. Plaintiff's exhibits shall be listed numerically. Defendant's exhibits shall be listed alphabetically. The parties shall use the standard exhibit stickers provided by the court: pink for plaintiff and blue for defendant.
XIII. DISCOVERY DOCUMENTS
Discovery documents to be used in the case-in-chief:
Pursuant to Local Rule 281(b)(12), Plaintiff designates the following answers to interrogatories and responses to requests for admissions to be offered at trial;
Defendants' Answers to Interrogatories Nos. 1,2, 3, 4, 6, 8, 9, 11, 17, 18, 21.
Defendants' Requests for Admissions Response Nos. 3, 4, 5, 6, 7, 8, 17, 19, 20, 21, 22.
Defendants' Request for Production of Documents Responses Nos. 7, 8, 55.
United States Discovery Documents:
The United States intends to use at trial the following discovery :
Plaintiffs' responses to admissions nos. 5, 6, 7, 11, 12, 16, 30, 31, 32, 34, 35, 51, .
Plaintiffs' response to interrogatory nos. 3, 4, 5.
XIV. FURTHER DISCOVERY OR MOTIONS
None, save and except for the permission to bring a motion to reconsider relative to compensatory damages under the Rehabilitation Act.
XV. STIPULATIONS
The parties have agreed that the plaintiff's mother will be permitted to testify as to her perceptions of the plaintiff's emotional upset but will not be permitted to testify as to any medical condition, despite the fact she is a psychologist. The jury will also not be informed that she is a psychologist.
In light of this stipulation, the defendants will withdraw exhibit 3(a).
XVI. AMENDMENTS/DISMISSALS
None.
XVII. FURTHER TRIAL PREPARATION
A. Counsel are directed to Local Rule 285 regarding the contents of and the time for filing trial briefs.
B. Counsel are informed that the court has prepared a set of standard jury instructions. In general, they cover all aspects of the trial except those relating to the specific claims of the complaint. Accordingly, counsel need not prepare instructions concerning matters within the scope of the prepared instructions. A copy of the prepared instructions is given to the parties at the Pretrial Conference.
C. Counsel are further directed that their specific jury instructions shall be filed fourteen (14) calendar days prior to the date of trial. As to any instructions counsel desires to offer, they shall be prepared in accordance with Local Rule 163(b)(1) which provides:
"Two copies of the instructions shall be submitted. One copy shall be electronically filed as a .pdf document and shall contain each instruction on a separate page, numbered and identified as to the party presenting it. Each instruction shall cite the decision, statute, ordinance, regulation or other authority supporting the proposition stated in the instruction."
The second copy ("jury copy") shall be submitted by e-mail to lkkorders@caed.uscourts.gov.
In addition, counsel shall provide copies of proposed forms of verdict/ including special verdict forms, at the time the proposed jury instructions are filed with the court.
D. It is the duty of counsel to ensure that any deposition which is to be used at trial has been filed with the Clerk of the Court. Counsel are cautioned that a failure to discharge this duty may result in the court precluding use of the deposition or imposition of such other sanctions as the court deems appropriate.
E. The parties are ordered to file with the court and exchange between themselves not later than one (1) week before the trial a statement designating portions of depositions intended to be offered or read into evidence (except for portions to be used only for impeachment or rebuttal).
F. The parties are ordered to file with the court and exchange between themselves not later than one (1) week before trial the portions of answers to interrogatories which the respective parties intend to offer or read into evidence at the trial (except portions to be used only for impeachment or rebuttal).
G. The court has extensive audiovisual equipment available. Any counsel contemplating its use shall contact the court's Telecommunications Manager, Andre Carrier, at (916) 930-4223, at least two weeks in advance of trial to receive the appropriate training.
XVIII. SETTLEMENT NEGOTIATIONS
A Settlement Conference is SET before the Honorable Dale A. Drozd, United States Magistrate Judge, on January 12, 2012 at 10:00 a.m. Counsel are directed to submit settlement conference statements to the settlement judge not later than, seven (7) days prior to the conference and shall be e-mailed to: dadorders@caed.uscourts.gov . At counsel's option, such statements may be submitted in confidence pursuant to Local Rule 270(d).
Each party is directed to have a principal capable of disposition at the Settlement Conference or to be fully authorized to settle the matter on any terms and at the Settlement Conference.
XIX. TRIAL EXHIBITS
Plaintiff reserves the right to use trial presentation software.
XX. SEPARATE TRIAL OF ISSUES
None.
XXI. IMPARTIAL EXPERTS/LIMITATION OF EXPERTS
None.
XXII. ATTORNEYS' FEES
Plaintiff will seek attorney's fees pursuant to the statute.
XXIII. MISCELLANEOUS
None.
XXIV. ESTIMATE OF TRIAL TIME/TRIAL DATE
Jury trial is set for March 20, 2012, at 10:30 a.m. in Courtroom No. 4. The parties represent in good faith that the trial will take approximately five (5) days.
Counsel are to call Ana Rivas, Courtroom Deputy, at (916) 930-4133, one week prior to trial to ascertain status of trial date.
XXV. OBJECTIONS TO PRETRIAL ORDER
Each party is granted fourteen (14) days from the effective date of this Pretrial Order [Tentative] to object to or augment same. Each party is also granted seven (7) days thereafter to respond to the other party's objections. If no objections or additions are made, the Tentative Pretrial Order will become final without further order of the court.
The parties are reminded that pursuant to Federal Rule of Civil Procedure 16(e), this order shall control the subsequent course of this action and shall be modified only to prevent manifest injustice.
XXVI. OTHER
All time limits and dates that refer to the Pretrial Order refer to the date this Pretrial Order [Tentative] is filed and not the date an amended order, if any, is filed.
IT IS SO ORDERED.
LAWRENCE K. KARLTON
senior judge
united states district court
John Ota (SBN 195532)
LAW OFFICES OF JOHN OTA
LAWRENCE A. ORGAN (SBN 175503)
BARBARA E. FIGARI (SBN 251942)
EQUALITY LAWYERS LLP
Attorneys for Plaintiff ROSLYN G. MCCOY
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION
ROSLYN G. McCQY, Plaintiff,
v.
JOHN MCHUGH,
SECRETARY OF THE ARMY, collectively, Defendants.
CASE NO: 2:09-CV-01973 LKK-CMK
PLAINTIFF ROSLYN McCOY'S WITNESS LIST
Pretrial Conference: September 6, 2011
Judge: Hon. Lawrence K. Karlton
Pursuant to Local Rule 281 (b)(10) Plaintiff Roslyn McCoy intends to call the following witnesses at trial:
1. Polly Bambauer
2060 Butte St.
Redding, C A 96001
2. Linda Brown-Employee of Defendant
1325 J Street, Room 840
Sacramento CA, 95814
3. Penelope Cross
1325 J Street, Room 1440 Sacramento, CA 95814
4. Deanna D. Cooper 404 East Lake Street Mt. Shasta, CA 96067
5. Barbara Dwyer
1325 J Street
Sacramento CA, 95814
6. John Esparza
3041 Pebble Beach Circle
Fairfield, CA 94534
7. Jason Faridi
9707 Almond Wood Drive
Oakdale, CA 95361
8. Jonathan McCoy
404 East Lake Street
Mt. Shasta, CA 96067
9. Lois E. McCoy
1327 Tipperary St.
Boulder, CO 80303
10. Roslyn McCoy - Plaintiff
404 East Lake Street
Mt. Shasta, CA 96067
11. Debora Richert - Former Chief of Staff, USACOE, Sacramento District
204 Lee Avenue
Fort Meyer, VA 22211
12. Katherine E. Sawyer
1325 J Street
Sacramento CA, 95814
13. Arthur R. Smith
2100 Bridgeway Boulevard
Sausalito, CA 94965
14. Ted Surratt - Employee of Defendant
1325 J Street, Room 840
Sacramento CA, 95814
15. Robert Taylor
Last known address:
1325 J Street
Sacramento, CA 95814
16. Helen Warren
Civilian Personnel Management Service
Investigations and Resolutions Division
P.O. Box 135
Roseville, CA 95678
17. Keiko Wilson
1325 J Street
Sacramento, CA 95814
18. Elaine Woodhall - Employee of Defendant
1325 J Street
Sacramento CA, 95814
Respectfully submitted,
EQUALITY LAWYERS, LLP
LAWRENCE A. ORGAN, ESQ.
BARBARA E. FIGARI, ESQ.
Attachment A to Secretary's Pretrial Conference Statement
Secretary's Proposed Witness List
Linda L. Brown
EEO Manager,
United States Army Corps of Engineers, Sacramento District
1325 J. Street, Room 840
Sacramento, CA 95825
To be contacted through defense counsel only
Debora C, Richert
Formerly Chief of Staff,
United States Army Corps of Engineers, Sacramento District
204 Lee Avenue
Fort Myer,VA 22211
To be contacted through defense counsel only
Arthur R. Smith
Formerly Chief of Safety & Occupational Health Office,
United States Army Corps of Engineers, Sacramento District
2100 Bridgeway Boulevard
Sausalito,CA 94965
To be contacted through defense counsel only
Ted D.Surratt
Formerly Human Resources Specialist, Civilian Human Resources Agency,
United States Army Corps of Engineers, South Pacific Division-Civilian Personnel
Advisory Center
Current contact information to be determined
To be contacted through defense counsel only
Larry Rinetti
Formerly Supervisory Human Resources Specialist
Civilian Human Resources Agency,
United States Army Corps of Engineers, South Pacific Division-Civilian Personnel
Advisory Center
Current contact information to be determined
To be contacted through defense counsel only
Barbara Dwyer
1325 J. Street, Room 840
Sacramento, CA 95825
Susan Bayless
United States Army Corps of Engineers, Sacramento District
1325 J. Street
Sacramento, CA 95825
To be contacted through defense counsel only
Roslyn McCoy
Plaintiff
404 East Lake Street
Mt. Shasta, CA 96067
John Ota (SBN 195532)
LAW OFFICES OF JOHN OTA
LAWRENCE A. ORGAN (SBN 175503)
BARBARA E. FIGARI (SBN 251942)
EQUALITY LAWYERS LLP
Attorneys for Plaintiff ROSLYN G. MCCOY
ROSLYN G. McCOY, Plaintiff,
v.
JOHN MCHUGH, SECRETARY OF THE ARMY, collectively, Defendants.
CASE NO: 2:09-CV-01973 LKK-CMK
PLAINTIFF ROSLYN McCOY'S EXHIBIT LIST
Pretrial Conference: October 3,2011
Time: 1:30 p.m.
Trial Date: December 6,2011
Judge: Hon. Lawrence K, Karlton
+-----------------------------------------------------------------------------+ ¦Pursuant to Local Rule 281(b)(l 1) Plaintiff Roslyn McCoy submits the ¦ ¦following list of ¦ +-----------------------------------------------------------------------------¦ ¦exhibits she intends to proffer at trial: ¦ ¦ +------------------------------------------------------------+----------------¦ ¦Exhibit¦ ¦ ¦ ¦No. ¦ ¦ ¦ +-------+----------------------------------------------------+----------------¦ ¦ ¦Notice of Termination and accompanying Memoranda for¦USACOE-1303-1311¦ ¦1 ¦Record ¦ ¦ ¦ +----------------------------------------------------+----------------¦ ¦2 ¦Plaintiff's Performance Counseling Worksheet dated ¦USACOE-1449-1450¦ ¦ ¦12-19-05 ¦ ¦ +-------+----------------------------------------------------+----------------¦ ¦3 ¦Plaintiff's Performance Counseling Worksheet dated ¦USACOE-1460 ¦ ¦ ¦2-23-06 ¦ ¦ +-------+----------------------------------------------------+----------------¦ ¦4 ¦Plaintiff's Base System Civilian Evaluation Report ¦USACOE-1451-1456¦ ¦ ¦-June 2006 ¦ ¦ +-------+----------------------------------------------------+----------------¦ ¦ ¦September 5, 2006 email from Ted Surratt to Linda ¦ ¦ ¦5 ¦Brown. Subject: Sample Termination Letter during ¦USACOE-1141-1142¦ ¦ ¦Probationary Period ¦ ¦ +-------+----------------------------------------------------+----------------¦ ¦6 ¦September 5,2006 email from Larry Rinetti to Linda ¦USACOE-1143 ¦ ¦ ¦Brown. Subject: FW: Temp Termination Ltr ¦ ¦ +-------+----------------------------------------------------+----------------¦ ¦7 ¦Plaintiff's 2005 Student Info Report ¦USACOE-0090 ¦ +-------+----------------------------------------------------+----------------¦ ¦8 ¦August 4,2005 Email to Linda Brown. Subject: CPOL ¦USACOE-0299 - ¦ ¦ ¦Resume Builder ¦300 ¦ +-------+----------------------------------------------------+----------------¦ ¦ ¦Email chain between Plaintiff, John Esparza, Barbara¦ ¦ ¦9 ¦Dwyer and Linda Brown dated April 13, 2006 - May ¦USACOE-0154-0160¦ ¦ ¦3,2006 ¦ ¦ +-------+----------------------------------------------------+----------------¦ ¦10 ¦August 3- 4, 2005 Email chain between Linda Brown ¦USACOE-0107 ¦ ¦ ¦and Ted Surratt. Subject: RE: Roslyn ¦ ¦ +-------+----------------------------------------------------+----------------¦ ¦ ¦August 31,2005 Email from Nicholas J. Applegate to ¦ ¦ ¦11 ¦Plaintiff, Linda Brown, Ted Surratt. Subject: ¦USACOE-0127 ¦ ¦ ¦Excepted Service Appointment ¦ ¦ +-------+----------------------------------------------------+----------------¦ ¦12 ¦June - July 2006 Emails between Linda Brown and Ted ¦USACOE-0108-0109¦ ¦ ¦Surratt. Subject: Roslyn McCoy ¦ ¦ +-------+----------------------------------------------------+----------------¦ ¦13 ¦Document Titled: RM CONTINUATION ¦USACOE-0126 ¦ +-------+----------------------------------------------------+----------------¦ ¦14 ¦Notice of Personnel Action effective date: ¦USACOE-0142 ¦ ¦ ¦05-31-2005 ¦ ¦ +-------+----------------------------------------------------+----------------¦ ¦15 ¦Notice of Personnel Action effective date: ¦USACOE-0140 ¦ ¦ ¦01-08-2006 ¦ ¦ +-------+----------------------------------------------------+----------------¦ ¦ ¦Notice of Personnel Action effective date: 06-11 ¦USACOE-0141 ¦ ¦ ¦-2006 ¦ ¦ ¦16 17 +----------------------------------------------------+----------------¦ ¦ ¦Request for Personnel Action proposed effective ¦USACOE-0143 ¦ ¦ ¦date: 09-16-2006 ¦-0145 ¦ +-------+----------------------------------------------------+----------------¦ ¦ ¦September 6, 2006 Email chain between Linda Brown ¦ ¦ ¦18 ¦and LTC James A. Porter. Subject: Roslyn McCoy - LDP¦USACOE-1150 ¦ ¦ ¦Tier 2 Recommendation ¦ ¦ +-------+----------------------------------------------------+----------------¦ ¦ ¦November 18, 2005 Email chain between Roslyn McCoy ¦USACOE-0086, ¦ ¦19 ¦and Linda Brown. Subject: Correction of official ¦USACOE-0438 ¦ ¦ ¦listings ¦ ¦ +-----------------------------------------------------------------------------¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦20¦Emails and flyers regarding Diversity Jubilee ¦USACOE-1108-1112 ¦ +--+--------------------------------------------------------+-----------------¦ ¦ ¦August 30, 2006 Email from Linda Brown to Debora C. ¦ ¦ ¦21¦Reichert. Subject: Doctor's Appointment/EEO Teambuilding¦USACOE-1131 ¦ ¦ ¦Session ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦22¦Email chain between Plaintiff, Barbara Dwyer, Linda ¦USACOE-1132-1133;¦ ¦ ¦Brown. Subject: Diversity Jubilee Update ¦USACOE-1169 ¦ +--+--------------------------------------------------------+-----------------¦ ¦23¦Plaintiff's Civilian Leave Earnings Statements from 7/09¦N/A ¦ ¦ ¦/05 through 9/30/06 ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦24¦Plaintiffs Individualized Plan for Employment ¦RM0044 - 56 ¦ +--+--------------------------------------------------------+-----------------¦ ¦25¦Plaintiff's Plan to Achieve Self-Support ¦RM0616-639 ¦ +--+--------------------------------------------------------+-----------------¦ ¦26¦September 14, 2006 Email chain between Patricia Hawkins,¦USACOE-1164 ¦ ¦ ¦Linda Brown and Larry Rinetti. Subject: Roslyn ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦ ¦Email chain between Jason Faridi, John Esparza, ¦ ¦ ¦27¦Plaintiff, Katrina Chow, Barbara Dwyer. Subject: SEPM ¦USACOE-1444-1446 ¦ ¦ ¦meeting ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦28¦Email Chain between Plaintiff, Barbara Dwyer and Jason ¦USACOE-1653-1654 ¦ ¦ ¦Faridi dated October 4-5, 2005. ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦29¦Email chain between Plaintiff and Keiko Wilson dated ¦No Bates Number ¦ ¦ ¦August 23, 2006 ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦30¦Letter from Katherine E. Sawyer to Col. Light dated ¦No Bates Number ¦ ¦ ¦September 11,2006 ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦31¦USACOE District Organization Chart ¦USACOE-0050 ¦ +--+--------------------------------------------------------+-----------------¦ ¦32¦Calculation Worksheet for Student Pay & Benefits 2005 ¦USACOE-0181 ¦ ¦ ¦Summer Hire Program for Students with Disabilities ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦33¦Plaintiff's Summer Job Authorization Form ¦USACOE-0180 ¦ +--+--------------------------------------------------------+-----------------¦ ¦34¦Letter of Recommendation from Karen Ziegler to Hiring ¦No Bates Number ¦ ¦ ¦Committee regarding Plaintiff dated February 3, 2005 ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦35¦Letter of Recommendation from Ralph D. McFarland ¦No Bates Number ¦ ¦ ¦regarding Plaintiff dated February 3,2005 ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦ ¦Letter from Lankford S. Satterfield of the Safety and ¦ ¦ ¦36¦Occupational Health Office regarding Plaintiff dated ¦No Bates Number ¦ ¦ ¦September 14, 2006 ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦37¦Letter of Recommendation from Katherine E. Sawyer ¦No Bates Number ¦ ¦ ¦regarding Plaintiff dated September 14, 2006 ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦38¦Letter of Recommendation from Barbara Dwyer regarding ¦No Bates Number ¦ ¦ ¦Plaintiff dated September 23, 2006 ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦39¦Letter of Recommendation from Jim Arack, PhD regarding ¦No Bates Number ¦ ¦ ¦Plaintiff dated October 12, 2006 ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦40¦Email from A.R. Smith to Plaintiff dated September 13, ¦RM0113-114 ¦ ¦ ¦2006 and attachment ¦ ¦ +--+--------------------------------------------------------+-----------------¦ ¦41¦Email chain between Plaintiff and Frederick Royer ¦No Bates Number ¦ ¦ ¦regarding voice assistive software dated June 15, ¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ +-----------------------------------------------------------------------------¦ ¦2006 ¦ ¦ +---------------------------------------------------------------+-------------¦ ¦42¦Email chain between Plaintiff and Frederick Royer. Subject: ¦No Bates ¦ ¦ ¦requesting upgrade dated July 19, 2006 ¦Number ¦ +--+------------------------------------------------------------+-------------¦ ¦43¦Email from Plaintiff to Frederick Royer. Subject: grammar ¦No Bates ¦ ¦ ¦checker accommodation. Dated August 28, 2006 ¦Number ¦ +--+------------------------------------------------------------+-------------¦ ¦ ¦Handwritten Notes marked: "Roslyn 2 May 0950 ¦USACOE-0094 ¦ ¦44+------------------------------------------------------------+-------------¦ ¦45¦Letter from Plaintiff to EEO/Civil Rights Office dated ¦No Bates ¦ ¦ ¦October 5,2009 ¦Number ¦ +--+------------------------------------------------------------+-------------¦ ¦46¦Email from Sandra L. Olivares to Plaintiff, Kenneth Manning,¦No Bates ¦ ¦ ¦Carl Korman dated February 20, 2009 ¦Number ¦ +--+------------------------------------------------------------+-------------¦ ¦47¦Photographs of 1325 J Street Sacramento, CA and adjacent ¦No Bates ¦ ¦ ¦parking lot. ¦Number ¦ +--+------------------------------------------------------------+-------------¦ ¦48¦Email from Merle Heard to Linda Brown dated August 3, 2005 ¦USACOE-0298 ¦ ¦49+------------------------------------------------------------+-------------¦ ¦ ¦Memorandum For Record dated 12 June 2006 ¦USACOE-1338 ¦ +--+------------------------------------------------------------+-------------¦ ¦50¦Memorandum for Record Dated 21 April 2006 ¦US ¦ ¦ ¦ ¦ACOE-1341-43 ¦ +--+------------------------------------------------------------+-------------¦ ¦51¦Notice of Termination and Accompanying Documentation (signed¦USACOE-1461 -¦ ¦ ¦versions) ¦1470 ¦ +--+------------------------------------------------------------+-------------¦ ¦ ¦Relevant Excerpts of Army Regulation 690-600 Civilian ¦No Bates ¦ ¦52¦Personnel Equal Employment Opportunity Discrimination ¦Number ¦ ¦ ¦Complaints ¦ ¦ +--+------------------------------------------------------------+-------------¦ ¦ ¦Pertinent Agency and Local Guidelines Concerning Excepted ¦No Bates ¦ ¦ ¦Appointments Under the Authority Supporting Complainant's ¦Number ¦ ¦ ¦Appointment. ¦ ¦ ¦56+------------------------------------------------------------+-------------¦ ¦57¦Pertinent Agency and Local Guidelines Regarding Disciplinary¦No Bates ¦ ¦ ¦and Adverse Actions in Effect at the time of the Action at ¦Number ¦ ¦58¦Issue ¦ ¦ ¦ +------------------------------------------------------------+-------------¦ ¦ ¦A.R. Smith Declaration from EEO Investigation and email to ¦No Bates ¦ ¦ ¦A.R. Smith from Marie Robichau Subject: Draft - Declaration ¦Number ¦ ¦ ¦for the Investigation on Ms. Roslyn McCoy ¦ ¦ +--+------------------------------------------------------------+-------------¦ ¦ ¦Ted Surratt Declaration from EEO Investigation and email to ¦No Bates ¦ ¦59¦Ted Surratt from Marie Robichau Subject: Formal EEO ¦Number ¦ ¦ ¦Investigation - Ms. Roslyn McCoy ¦ ¦ +--+------------------------------------------------------------+-------------¦ ¦ ¦Flow Chart of EEO Complaint Process ¦No Bates ¦ ¦60¦ ¦Number ¦ ¦ +------------------------------------------------------------+-------------¦ ¦61¦Plaintiff's Delta Dental Policy Information ¦No Bates ¦ ¦ ¦ ¦Number ¦ +--+------------------------------------------------------------+-------------¦ ¦ ¦ ¦RM793 - 800; ¦ ¦62¦Plaintiff's Dental Bills ¦802 -806; ¦ ¦ ¦ ¦810-838 ¦ +--+------------------------------------------------------------+-------------¦ ¦63¦Plaintiff's Plan to Achieve Self-Support ¦RM0659 - 694 ¦ +--+------------------------------------------------------------+-------------¦ ¦64¦Plaintiff's Business Plan for Social Security Administration¦RM0644 - 658 ¦ +--+------------------------------------------------------------+-------------¦ ¦65¦Job Description County of Siskiyou Behavioral Health ¦RM0701 ¦ ¦ ¦Clinician I/II ¦ ¦ +--+------------------------------------------------------------+-------------¦ ¦66¦Job Description Behavioral Health Services Specialist II ¦RM0702 - 705 ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦67¦Letter to Plaintiff from College Siskyous Human Resources dated ¦RM0697 ¦ ¦ ¦January 29,2007 ¦ ¦ +--+------------------------------------------------------------------+-------¦ ¦ ¦ ¦No ¦ ¦68¦Informational Freedom Profit and Loss ¦Bates ¦ ¦ ¦ ¦Number ¦ +--+------------------------------------------------------------------+-------¦ ¦ ¦Fictitious Business Name Statement for Informational Freedom ¦No ¦ ¦69¦Consultant ¦Bates ¦ ¦ ¦ ¦Number ¦ +--+------------------------------------------------------------------+-------¦ ¦ ¦ ¦No ¦ ¦70¦Informational Freedom Profit & Loss ¦Bates ¦ ¦ ¦ ¦Number ¦ +--+------------------------------------------------------------------+-------¦ ¦ ¦ ¦No ¦ ¦71¦Crew Agreement dated 8-1-07, W-9 and hours log ¦Bates ¦ ¦ ¦ ¦Number ¦ +--+------------------------------------------------------------------+-------¦ ¦ ¦Out Reach Notice Posted 8/8/06 - Pacific Southwest Region 5 ¦No ¦ ¦72¦Shasta-Trinity National Forest and Outreach Response Form dated ¦Bates ¦ ¦ ¦August 22,2006 ¦Number ¦ +--+------------------------------------------------------------------+-------¦ ¦ ¦ ¦No ¦ ¦73¦Plaintiff's Paystubs from IHSS ¦Bates ¦ ¦ ¦ ¦Numbers¦ +--+------------------------------------------------------------------+-------¦ ¦ ¦Position Description for Equal Employment Opportunity Assistant ¦No ¦ ¦74¦(Office Automation) ¦Bates ¦ ¦ ¦ ¦Numbers¦ +--+------------------------------------------------------------------+-------¦ ¦75¦Plaintiff's Continuation, Rehabilitation Program Report ¦RM0688 ¦ ¦ ¦ ¦- 691 ¦ +--+------------------------------------------------------------------+-------¦ ¦76¦Letter To Whom It May Concern from Polly Bambauer regarding ¦RM0732 ¦ ¦ ¦Plaintiff ¦ ¦ +--+------------------------------------------------------------------+-------¦ ¦77¦Receipt from College of the Siskiyous for Fall 2008 ¦RM0693 ¦ +--+------------------------------------------------------------------+-------¦ ¦78¦Statement from Penelope Ann Cross dated January 30,2009 ¦RM0284 ¦ ¦ ¦ ¦- 286 ¦ +--+------------------------------------------------------------------+-------¦ ¦79¦Statement from Deanna Dawn Cooper regarding Plaintiff ¦RM0729 ¦ ¦ ¦ ¦- 730 ¦ +--+------------------------------------------------------------------+-------¦ ¦80¦Letter from Lois E. McCoy titled Indications of psychological pain¦RM0953 ¦ ¦ ¦and mental suffering ¦- 954 ¦ +--+------------------------------------------------------------------+-------¦ ¦ ¦Transcript of Hearing Vol. 1, pages 1 to 241, February 25, 2009 ¦ ¦ ¦81¦from EEOC Hearing in EEOC Case Number 550-2007-0038IX, Roslyn G. ¦Pages 1¦ ¦ ¦McCoy v. Pete Geren, Secretary, Department of the Army (Army Corps¦to 241 ¦ ¦ ¦of Engineers) ¦ ¦ +--+------------------------------------------------------------------+-------¦ ¦ ¦Transcript of Hearing Vol. 2, pages 242 to 252, March 12, 2009 ¦Pages ¦ ¦82¦from EEOC Hearing in EEOC Case Number 5 5 0-2007-003 8IX, Roslyn ¦242 to ¦ ¦ ¦G. McCoy v. Pete Geren, Secretary, Department of the Army (Army ¦252 ¦ ¦ ¦Corps' of Engineers) ¦ ¦ +-----------------------------------------------------------------------------+
Plaintiff reserves the right to introduce as exhibits any exhibits not listed here but that appear on Defendant's exhibit list.
Respectfully submitted,
EQUALITY LAWYERS, LLP
LAWRENCE A. ORGAN, ESQ.
BARBARA E. FIGARI, ESQ.
Attachment B to Secretary's Pretrial Conference Statement
Secretary's Proposed Exhibit List
+-----------------------------------------------------------------------------+ +--+--------------------------------------------+-----------------------------¦ ¦ ¦Excerpts of Transcript of Deposition of ¦Deposition of Roslyn McCoy, ¦ ¦A.¦Roslyn McCoy ¦Volumes I and II, June 29-30,¦ ¦ ¦ ¦2010 ¦ +--+--------------------------------------------+-----------------------------¦ ¦ ¦Excerpts of Videotape of Deposition of ¦Deposition of Roslyn McCoy, ¦ ¦B.¦Roslyn McCoy ¦Volumes I and II, June ¦ ¦ ¦ ¦29-30,2010 ¦ +--+--------------------------------------------+-----------------------------¦ ¦ ¦Excerpts of Transcript of Administrative ¦Transcript of Hearing, ¦ ¦C.¦Hearing Testimony ¦Volumes 1 and 2, February ¦ ¦ ¦ ¦25,2009, and March 12,2009 ¦ +--+--------------------------------------------+-----------------------------¦ ¦ ¦ ¦Fact-Finding Conference ¦ ¦D.¦Excerpts of Fact-Finding Conference ¦Conducted by EEO ¦ ¦ ¦ ¦Investigator, March 15,2007 ¦ +--+--------------------------------------------+-----------------------------¦ ¦ ¦ ¦Exhibit 1 to Deposition of ¦ ¦E.¦Resume of Roslyn McCoy ¦Roslyn McCoy; Bates No. ¦ ¦ ¦ ¦RM0641-43 ¦ +--+--------------------------------------------+-----------------------------¦ ¦F.¦Email correspondence between Roslyn McCoy ¦Exhibit 2 to Deposition of ¦ ¦ ¦and Linda Brown, November 18, 2005 ¦Roslyn McCoy, USACOE-86-87 ¦ +--+--------------------------------------------+-----------------------------¦ ¦G.¦Email correspondence between Roslyn McCoy ¦RM182-86 ¦ ¦ ¦and Barbara Dwyer, September 15,2006 ¦ ¦ +--+--------------------------------------------+-----------------------------¦ ¦ ¦Email correspondence between Roslyn McCoy ¦Exhibit 8 to Deposition of ¦ ¦H.¦and Barbara Dwyer, Subject "Memorandum For ¦Roslyn McCoy; Bates No. ¦ ¦ ¦Record," September 30, 2006 ¦RM0460 ¦ +--+--------------------------------------------+-----------------------------¦ ¦ ¦Email correspondence between Roslyn McCoy ¦Exhibit 9 to Deposition of ¦ ¦I.¦and Barbara Dwyer, Subject: "going over ¦Roslyn McCoy; Bates No. ¦ ¦ ¦evidence," May 8, 2007 ¦RM0427 ¦ +--+--------------------------------------------+-----------------------------¦ ¦ ¦Email correspondence between Roslyn McCoy ¦Exhibit 10 to Deposition of ¦ ¦J.¦and Anthony Copeland, Subject: "EEO ¦Roslyn McCoy; Bates No. ¦ ¦ ¦Complaint" dated September 8,2007 ¦RM0187 ¦ +--+--------------------------------------------+-----------------------------¦ ¦K.¦Quarterly Performance Counseling Worksheet, ¦Exhibit 11 to Deposition of ¦ ¦ ¦2-23-2006 ¦Roslyn McCoy; USACOE-1460 ¦ +--+--------------------------------------------+-----------------------------¦ ¦ ¦Email correspondence between Roslyn McCoy ¦Exhibit 14 to Deposition of ¦ ¦L.¦and Margaret Hellwege, Subject: "Roslyn ¦Roslyn McCoy; Bates No. ¦ ¦ ¦McCoy EEO Complaint," September 22,2006 ¦RM0479-81 ¦ +--+--------------------------------------------+-----------------------------¦ ¦ ¦Email correspondence between Roslyn McCoy ¦Exhibit 15 to Deposition of ¦ ¦M.¦and Barbara Dwyer, Subject: "Roslyn McCoy," ¦Roslyn McCoy; Bates Nos. ¦ ¦ ¦October 5,2006 ¦RM0458-59 ¦ +--+--------------------------------------------+-----------------------------¦ ¦N.¦Roslyn McCoy's Responses to Discovery in ¦No Bates Number; Part of ¦ ¦ ¦Administrative ¦Administrative Record ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦ ¦Proceedings ¦ ¦ +----+----------------------------------------+-------------------------------¦ ¦0. ¦Psychological Evaluation Performed by ¦Exhibit 22 to Deposition of ¦ ¦ ¦Anita Kemp, Ph.D. ¦Roslyn McCoy; RM0060-66 ¦ +----+----------------------------------------+-------------------------------¦ ¦p. ¦Letter from Roslyn McCoy to Henry ¦No Bates Number; Part of ¦ ¦ ¦McClain, dated November 24,2006 ¦Administrative Record ¦ +----+----------------------------------------+-------------------------------¦ ¦Q. ¦Memorandum for Record Re Defamatory ¦Exhibit A to Deposition of A.R.¦ ¦ ¦Statement, April 7, 2006 ¦Smith; USACOE-1464 ¦ +----+----------------------------------------+-------------------------------¦ ¦s. ¦Email exchange between Roslyn McCoy and ¦Bates No. RM0325 ¦ ¦ ¦Penelope Cross ¦ ¦ +----+----------------------------------------+-------------------------------¦ ¦T. ¦Email exchange between Roslyn McCoy and ¦Bates No. RM0365 ¦ ¦ ¦Penelope Cross ¦ ¦ +----+----------------------------------------+-------------------------------¦ ¦U. ¦Email exchange between Roslyn McCoy and ¦Bates No. RM0373 ¦ ¦ ¦Penelope Cross ¦ ¦ +----+----------------------------------------+-------------------------------¦ ¦ ¦Memorandum for Record, Subject ¦Exhibit A to Declaration of ¦ ¦V. ¦"Defamatory Statement" made by Ms. ¦Linda Brown [DE 67-8]; ¦ ¦ ¦Roslyn McCoy, 2 May 2006 ¦USACOE-1463 ¦ +----+----------------------------------------+-------------------------------¦ ¦w. ¦Handwritten Note, 2 May 2006 ¦USACOE 0094 ¦ +----+----------------------------------------+-------------------------------¦ ¦ ¦Memorandum for Record, Subject: Meeting ¦Exhibit B to Declaration of ¦ ¦X. ¦with Ms, Debora Richert Regarding ¦Linda Brown [DE 67-8]; ¦ ¦ ¦Entertainment Schedule for Diversity ¦USACOE-1465-67 ¦ ¦ ¦Jubilee, 22 August 2006 and documents ¦ ¦ +----+----------------------------------------+-------------------------------¦ ¦ ¦Memorandum for Record, Subject: Ms. ¦Exhibit C to Declaration of ¦ ¦Y. ¦Roslyn McCoy Making False Statements to ¦Linda Brown [DE 67-8]; USACOE ¦ ¦ ¦Supervisory Official, 24 August 2006 ¦1469 ¦ +----+----------------------------------------+-------------------------------¦ ¦ ¦Memorandum for Record, Subject: Meetings¦Exhibit D to Declaration of ¦ ¦Z. ¦with Volunteers for Diversity Jubilee, ¦Linda Brown [DE 67-8]; USACOE ¦ ¦ ¦24 August 2006 ¦1468 ¦ +----+----------------------------------------+-------------------------------¦ ¦ ¦Memorandum for Ms. Roslyn G. McCoy, ¦Exhibit E to Declaration of ¦ ¦1A. ¦Subject: Notice of Termination, 7 ¦Linda Brown [DE 67-8]; USACOE ¦ ¦ ¦September 2006 ¦1470 ¦ +----+----------------------------------------+-------------------------------¦ ¦ ¦Sworn Affidavit of Penelope Cross dated ¦Attached as Exhibit A to ¦ ¦2A. ¦January 30, 2009. ¦Secretary's Reply Index of ¦ ¦ ¦ ¦Evidence [DE 76-4]. ¦ +----+----------------------------------------+-------------------------------¦ ¦ ¦ ¦Attached as Exhibit 13 In ¦ ¦3A. ¦Declaration of Penelope Cross, dated May¦Opposition to Plaintiffs ¦ ¦ ¦6,2011. ¦Opposition to Defendant's ¦ ¦ ¦ ¦Motion to Dismiss [DE 71-3]. ¦ +----+----------------------------------------+-------------------------------¦ ¦ ¦Declaration of Roslyn McCoy In ¦ ¦ ¦4A. ¦Opposition to Defendant's Motion for ¦Docket Entry 70. ¦ ¦ ¦Summary Judgment, dated May 8, 2011 ¦ ¦ +----+----------------------------------------+-------------------------------¦ ¦5A. ¦Email correspondence between Linda ¦USACOE-108-09 ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦ ¦Brown and Ted Surratt, Subject: Roslyn McCoy,¦ ¦ ¦ ¦June 7-July 5,2006 ¦ ¦ +----+---------------------------------------------+--------------------------¦ ¦6A. ¦Notice of Personnel Action, dated June ¦USACOE-0141 ¦ ¦ ¦11,2006 ¦ ¦ +----+---------------------------------------------+--------------------------¦ ¦7A. ¦Email correspondence between Roslyn McCoy and¦USACOE-154-160 ¦ ¦ ¦John Esparza ¦ ¦ +----+---------------------------------------------+--------------------------¦ ¦ ¦August 29, 2007 medical record of Checkup re ¦Medical Record Produced by¦ ¦8A. ¦Asthma, Dennis Hentrich, PAC ¦Roslyn McCoy in ¦ ¦ ¦ ¦Administrative Proceedings¦ +----+---------------------------------------------+--------------------------¦ ¦ ¦May 17, 2007 medical record of Checkup re ¦Medical Record Produced by¦ ¦9A. ¦Asthma, Dennis Hentrich, PAC ¦Roslyn McCoy in ¦ ¦ ¦ ¦Administrative Proceedings¦ +----+---------------------------------------------+--------------------------¦ ¦ ¦March 13, 2007 medical record of Checkup re ¦Medical Record Produced by¦ ¦10A.¦Asthma, Dennis Hentrich, PAC ¦Roslyn McCoy in ¦ ¦ ¦ ¦Administrative Proceedings¦ +----+---------------------------------------------+--------------------------¦ ¦11 ¦February 16,2007, medical record re visit for¦Medical Record Produced by¦ ¦A. ¦asthma, cat allergy, rosacea, dyslexia with ¦Roslyn McCoy in ¦ ¦ ¦homeopathic medicine, Dennis Hentrich, PAC. ¦Administrative Proceedings¦ +----+---------------------------------------------+--------------------------¦ ¦ ¦February 13,2007 record re visit for asthma, ¦Medical Record Produced by¦ ¦12A.¦Denis Hentrich, PAC ¦Roslyn McCoy in ¦ ¦ ¦ ¦Administrative Proceedings¦ +----+---------------------------------------------+--------------------------¦ ¦13A.¦Email correspondence between Roslyn McCoy and¦USACOE-0033 ¦ ¦ ¦Linda Brown, April 20-May 3, 2006 ¦ ¦ +----+---------------------------------------------+--------------------------¦ ¦14A.¦Email correspondence between Roslyn McCoy and¦USACOE-0981 ¦ ¦ ¦Linda Brown, May 22, 2006 ¦ ¦ +----+---------------------------------------------+--------------------------¦ ¦ ¦Email correspondence between Linda Brown, ¦ ¦ ¦15A.¦Deborah Richert, and Barbara Dwyer, May ¦USACOE-01005-1006 ¦ ¦ ¦19,2006 ¦ ¦ +----+---------------------------------------------+--------------------------¦ ¦16 ¦Email correspondence beteen Linda Brown and ¦USACOE-0985-86 ¦ ¦A. ¦Roslyn McCoy, May 22, 2006 ¦ ¦ +----+---------------------------------------------+--------------------------¦ ¦17 ¦Email correspondence between Linda Brown and ¦USACOE-1050-52 ¦ ¦A. ¦Roslyn McCoy, June 26, 2006 ¦ ¦ +----+---------------------------------------------+--------------------------¦ ¦18 ¦Email correspondence between Linda Brown and ¦USACOE-1053-55 ¦ ¦A. ¦Tony Coepland, June 26, 2006 ¦ ¦ +----+---------------------------------------------+--------------------------¦ ¦ ¦Email correspondence between Linda Brown, ¦ ¦ ¦19A.¦Susan Bayless, and Roslyn McCoy, July 10, ¦USACOE-1096-97 ¦ ¦ ¦2006 ¦ ¦ +----+---------------------------------------------+--------------------------¦ ¦20A.¦Email correspondence between Linda ¦USACOE-1127 ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦ ¦Brown and Roslyn McCoy, August ¦ ¦ ¦ ¦28, 2006 ¦ ¦ +----+--------------------------------+---------------------------------------¦ ¦21 ¦Email correspondence between ¦ ¦ ¦A. ¦Linda Brown and Deborah Richert ¦USACOE-1131 ¦ ¦ ¦August 30,2011 ¦ ¦ +----+--------------------------------+---------------------------------------¦ ¦22A.¦Linda Brown calendar entries, ¦USACOE-1437,1439 ¦ ¦ ¦August 23-24, 2006 ¦ ¦ +----+--------------------------------+---------------------------------------¦ ¦23A.¦Linda Brown's calendar entry, ¦USACOE-1419 ¦ ¦ ¦May 2, 2006 ¦ ¦ +----+--------------------------------+---------------------------------------¦ ¦ ¦Email correspondence between ¦ ¦ ¦24A.¦Roslyn McCoy and Jason Faridi, ¦USACOE-1653 ¦ ¦ ¦October 4-5, 2005 ¦ ¦ +----+--------------------------------+---------------------------------------¦ ¦ ¦Formal Complaint of ¦Part of Administrative Record; Attached¦ ¦25A.¦Discrimination filed by Roslyn ¦as Exhibit D to Declaration of Sandra ¦ ¦ ¦McCoy, Oct. 10, 2006 ¦Olivares [DE 67-6] ¦ +----+--------------------------------+---------------------------------------¦ ¦26A.¦5 C.F.R. §315.803 ¦5 C.F.R. § 315.803 ¦ +----+--------------------------------+---------------------------------------¦ ¦27A,¦Notice of Personnel Action, ¦Attached as Exhibit B to Declaration of¦ ¦ ¦effective Oct. 1,2005 ¦Sandra Olivares [DE 67-5] ¦ +-----------------------------------------------------------------------------+