Bullard v. Las Vegas Valley Water District

BRIEF re Response to Motion ;

D. Neb.June 15, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1160483v.1 Page 1 of 6 Sheri M. Thome, Esq. Nevada Bar No. 008657 Chad C. Butterfield, Esq. Nevada Bar No. 010532 I-Che Lai, Esq. Nevada Bar No. 12247 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 300 South Fourth Street, 11th Floor Las Vegas, Nevada 89101 (702) 727-1400; FAX (702) 727-1401 sheri.thome@wilsonelser.com chad.butterfield@wilsonelser.com i-che.lai@wilsonelser.com Attorneys for Defendants Las Vegas Valley Water District and Patricia Maxwell UNITED STATES DISTRICT COURT DISTRICT OF NEVADA LYNDALOU BULLARD, an individual; Plaintiff, v. LAS VEGAS VALLEY WATER DISTRICT; PATRICIA MAXWELL, an individual; DOES XI through XX and ROE CORPORATIONS XXI through XXX, inclusive, Defendants. CASE NO.: 2:15-cv-00948-JAD-VCF DEFENDANT LAS VEGAS VALLEY WATER DISTRICT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF WITH HER OPPOSITION TO THE DISTRICT’S MOTION FOR SUMMARY JUDGMENT Defendant LAS VEGAS VALLEY WATER DISTRICT (the “District”), by and through its attorneys of record, Sheri M. Thome, Esq., Chad C. Butterfield, Esq., and I-Che Lai, Esq. of WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, hereby objects to the following portions of evidence submitted by Plaintiff with her opposition to the District’s Motion for Summary Judgment (ECF No. 77). The District respectfully requests an evidentiary ruling as to each of these objections. / / / / / / / / / Case 2:15-cv-00948-JAD-VCF Document 83 Filed 06/15/17 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1160483v.1 Page 2 of 6 EVIDENTIARY OBJECTIONS Material Objected To: Grounds for Objection: Ruling on Objection: Bullard Dec. at ¶ 11: “At the time of the RIF, I was developing the programs that would help the District transition from growth and development to operations and management.” The District objects to this statement on the grounds that it is irrelevant, conclusory, self- serving, and unsupported by any factual data and/or evidence. See Hansen, supra. Plaintiff has failed to explain how this alleged fact demonstrates the existence of any genuine issues for trial. The lack of relevance of this statement is evident in the fact that Plaintiff did not cite to this statement anywhere in her opposition brief. The Court “is not required to comb through the record to find some reason to deny a motion for summary judgment.” See Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quotation omitted). Sustained: _____ Overruled: _____ Bullard Dec. at ¶ 27: “But, by about 2012, I noticed that the District’s training needs were increasing.” The District objects to this statement on the grounds that it is irrelevant, conclusory, self- serving, and unsupported by any factual data and/or evidence. See Hansen, supra. There is absolutely no truth to this speculative statement, as the District has conclusively established that “in the years leading up to the RIF, training attendance dropped considerably, from 23,948 hours in 2008 to only 9,705 hours in 2013.” (See ECF No. 71 at 6:14-16, including referenced exhibits) Sustained: _____ Overruled: _____ Bullard Dec. at ¶ 28: “After I was laid off, the Water District retained employees to continue to do my job duties. To this day, the Water District employs people to do these job duties. The District also hires outside consultants and contractors to train District Employees.” The District objects to this statement on the grounds that it is irrelevant, conclusory, self- serving, and unsupported by any factual data and/or evidence. See Hansen, supra. The lack of relevance of this statement is evident in the fact that Plaintiff did not cite to this statement anywhere in her opposition brief. See Carmen, supra. Plaintiff has failed to establish that she possesses knowledge of the District’s hiring and staffing practices following the RIF, and Plaintiff has failed to identify any factual data Sustained: _____ Overruled: _____ Case 2:15-cv-00948-JAD-VCF Document 83 Filed 06/15/17 Page 2 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1160483v.1 Page 3 of 6 and/or evidence to support this statement, which is directly refuted by the deposition testimony of Pat Maxwell. (See Reply at Ex. B, 62:5-14). Bullard Dec. at ¶ 29: As a matter fact [sic], the day of the RIF, Pat Maxwell offered all the other members of my division contracts to continue their work.” The District objects to this statement on the grounds that it is irrelevant, conclusory, self- serving, and unsupported by any factual data and/or evidence. See Hansen, supra. Plaintiff has failed to establish that she possesses knowledge of the District’s hiring and staffing practices following the RIF, and Plaintiff has failed to identify any factual data and/or evidence to support this statement, which is directly refuted by the deposition testimony of Pat Maxwell. (See Reply at Ex. B, 62:5-14). The lack of relevance of this statement is evident in the fact that Plaintiff did not cite to this statement anywhere in her opposition brief. See Carmen, supra. Sustained: _____ Overruled: _____ Bullard Dec. at ¶ 31: “While the projects I was responsible [sic] decreased because of the recession, they never ceased because of the recession and they continue regardless of the status of the economy.” The District objects to this statement on the grounds that it is conclusory, self-serving, and unsupported by any factual data and/or evidence. See Hansen, supra. Plaintiff has failed to establish that she possesses knowledge of the District’s HR practices following her inclusion in the RIF, and therefore has failed to demonstrate that she possesses foundational knowledge to support this statement. Sustained: _____ Overruled: _____ Bullard Dec. at ¶ 32: “These projects continued after the layoffs.” The District objects to this statement on the grounds that it is conclusory, self-serving, and unsupported by any factual data and/or evidence. See Hansen, supra. Plaintiff has failed to establish that she possesses knowledge of the District’s HR practices following her inclusion in the RIF, and therefore has failed to demonstrate that she possesses foundational knowledge to support this statement, which is directly refuted by the testimony of Pat Maxwell: Q. I’m trying to get a handle on this. In regards to Lyndalou’s job functions, did they cease or did Sustained: _____ Overruled: _____ Case 2:15-cv-00948-JAD-VCF Document 83 Filed 06/15/17 Page 3 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1160483v.1 Page 4 of 6 somebody take them over? A. They pretty much ceased. I mean, there was a couple of minor things having to do with the diversity council and other things that could be managed out of my department - out of my office that weren’t involved in employee development. (See Reply, Ex. B at 62:5-14) Bullard Dec. at ¶ 37: “In the HR Division, there was an atmosphere of intimidation; bullying, biases and unethical scenarios were an unfortunate part of our department by the then-director of Human Resources, Pat Maxwell.” The District objects to this statement on the grounds that it is conclusory, self-serving, and unsupported by any factual data and/or evidence. See Hansen, supra. Sustained: _____ Overruled: _____ Bullard Dec. at ¶ 40: “The egregious behavior that continued is absolutely unacceptable in today’s corporate world.” The District objects to this statement on the grounds that it is conclusory, self-serving, and unsupported by any factual data and/or evidence. See Hansen, supra. Plaintiff has failed to identify or describe the so-called “egregious behavior” she references in this paragraph. Sustained: _____ Overruled: _____ Bullard Dec. at ¶ 42: “Because of my two harassment complaints against Pat Maxwell, Pat Maxwell stopped giving me raises. Pat Maxwell told me this was because I ‘make more than enough money.’ However, other people in my division continued to get raises.” The District objects to this statement on the grounds that it is conclusory, self-serving, and unsupported by any factual data and/or evidence. See Hansen, supra. Plaintiff has failed to identify any factual data and/or evidence to support her speculative causal link between her complaints and the alleged cessation of raises. Sustained: _____ Overruled: _____ Bullard Dec. at ¶ 49: “The Water District did not follow the layoff procedure in the employee handbook.” The District objects to this statement on the grounds that it is irrelevant, conclusory, self- serving, and unsupported by any factual data and/or evidence. See Hansen, supra. Plaintiff has failed to provide any factual data and/or evidence to support her contention, and has failed to demonstrate that she is qualified to render opinions on the District’s application of the Employee Handbook to the RIF. Plaintiff has also ignored her prior testimony in which she expressly acknowledged that Sustained: _____ Overruled: _____ Case 2:15-cv-00948-JAD-VCF Document 83 Filed 06/15/17 Page 4 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1160483v.1 Page 5 of 6 she was not relying on the Employee Handbook as a basis for asserting that she had a contract with the District, and that she was an at-will employee. (See Reply at Ex. A, 69:1-22, 100:19 to 102:5). See Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009) (“The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.”). Bullard Dec. at ¶ 50: “If the procedure had been followed, I should not have been laid off due to my education, experience and length of service.” The District objects to this statement on the grounds that it is irrelevant, conclusory, self- serving, and unsupported by any factual data and/or evidence. See Hansen, supra. Sustained: _____ Overruled: _____ The District respectfully asks the Court to sustain the foregoing evidentiary objections. DATED this 15 th day of June, 2017. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP BY: /s/ Chad C. Butterfield Sheri M. Thome, Esq. Nevada Bar No. 008657 Chad C. Butterfield, Esq. Nevada Bar No. 010532 I-Che Lai, Esq. Nevada Bar No. 12247 300 South Fourth Street, 11th Floor Las Vegas, Nevada 89101 Attorneys for Defendant Las Vegas Valley Water District ORDER GOOD CAUSE SHOWN, IT IS SO ORDERED. Dated this _____ day of _____________, 2017. ________________________________________ UNITED STATES DISTRICT COURT JUDGE Case 2:15-cv-00948-JAD-VCF Document 83 Filed 06/15/17 Page 5 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1160483v.1 Page 6 of 6 CERTIFICATE OF SERVICE Pursuant to Fed. R. Civ. P. 5(b), I certify that I am an employee of Wilson Elser Moskowitz Edelman & Dicker LLP, and that on this 15 th day of June, 2017, I served a true and correct copy of the foregoing DEFENDANT LAS VEGAS VALLEY WATER DISTRICT’S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF WITH HER OPPOSITION TO THE DISTRICT’S MOTION FOR SUMMARY JUDGMENT as follows: by placing same to be deposited for mailing in the United States Mail, in a sealed envelope upon which first class postage was prepaid in Las Vegas, Nevada; and/or via electronic means by operation of the Court’s electronic filing system, upon each party in this case who is registered as an electronic case filing user with the Clerk; and/or via hand-delivery to the addressees listed below; and/or via facsimile; and/or by transmitting via email the document listed above to the email address set forth below on this date before 5:00 p.m. (PST/PDT). Matthew Q. Callister, Esq. CALLISTER & ASSOCIATES 330 E. Charleston Blvd., #101 Las Vegas, Nevada 89104 Phone: (702) 385-3343 Fax: (702) 385-2899 mqc@call-law.com Attorneys for Plaintiffs BY /s/ Naomi E. Sudranski An Employee of WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Case 2:15-cv-00948-JAD-VCF Document 83 Filed 06/15/17 Page 6 of 6