Coleman v. Home Health Resources Incorporated et al

MOTION for Summary Judgment Defendants Home Health Resources, Inc. and the Crossing Hospice Care, Inc.'s Motion for Summary Judgment

D. Ariz.October 7, 2016

Active/43794183.13 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 L A W O F F I C E S S H E R M A N & H O W A R D L . L . C . 7 0 3 3 E A S T G R E E N W A Y P A R K W A Y , S U I T E 2 5 0 S C O T T S D A L E , A R I Z O N A 8 5 2 5 4 T E L E P H O N E : ( 4 8 0 ) 6 2 4 - 2 7 1 0 F A X : ( 4 8 0 ) 6 2 4 - 2 0 2 9 ( A Z B A R F I R M N O . 0 0 4 4 1 0 0 0 ) John Alan Doran (AZ Bar No. 012112) (JDoran@ShermanHoward.com) Lori Wright Keffer (AZ Bar No. 028144) (LKeffer@ShermanHoward.com) Matthew Hesketh (AZ Bar No. 029319) (MHesketh@ShermanHoward.com) Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA NORMA COLEMAN and BOOKER COLEMAN, Plaintiffs, v. HOME HEALTH RESOURCES, INC., and THE CROSSING: HOSPICE CARE, INC., Defendants. Case No. 2:15-cv-01332-NVW DEFENDANTS HOME HEALTH RESOURCES, INC. and THE CROSSING HOSPICE CARE, INC.’S MOTION FOR SUMMARY JUDGMENT (Assigned to Hon. Neil V. Wake) (Oral Argument Requested) Defendants Home Health Resources, Inc. and The Crossing: Hospice Care, Inc., (collectively, “Home Health” or the “Company”) by and through their undersigned counsel, respectfully move the Court to enter summary judgment in their favor pursuant to Rule 56, Federal Rules of Civil Procedure. This Motion is supported by the following Memorandum of Points and Authorities, Defendants’ Statement of Undisputed Facts filed contemporaneously with this Motion, and by the entire record in this matter. The undisputed facts compel summary judgment because: (1) all but one of Plaintiff’s claims are time-barred; (2) Plaintiff cannot make out even a prima facie case on her remaining claim of retaliation; (3) even were Plaintiff able to state a prima facie retaliation claim, Plaintiff cannot adduce sufficient evidence to convince a trier of fact that Home Health’s reasons for eliminating her position were factually false and the real reason was retaliatory animus; and (4) Plaintiff’s damages case is irretrievably flawed. MEMORANDUM OF POINTS AND AUTHORITIES This is a retaliation claim with untimely discrimination claims appended to it. Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 1 of 18 Active/43794183.13 2 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 While Plaintiff Norma Coleman (“Plaintiff”) lacked meaningful training in the Human Resources field, Defendants made her their HR Manager in the Summer of 2007. When it became clear that Plaintiff was failing in that role, Defendants issued Plaintiff a stern, documented warning drawing her attention to a variety of performance shortcomings. This warning came on October 15, 2010. Defendants issued Plaintiff another stern, documented warning on November 11, 2010. Unbeknownst to Defendants, after the first performance warning, Plaintiff took a page out of HR 101 and filed a baseless EEOC charge, in a facile attempt to gain artificial employment security. Defendants did not become aware of the EEOC charge until after they issued the second warning. Once apprised of the EEOC charge, Defendants were forced to walk on egg shells with Plaintiff, while her performance continued to disappoint. Some seven months after Plaintiff’s EEOC charge, Defendants received advice from an independent, neutral third-party HR consultant that Plaintiff was not doing her job and lacked the experience or skills necessary to improve. Based on this advice and the documented history of Plaintiff’s shortcomings, she was discharged and Defendants outsourced the entire HR function to a third-party provider, which subsequently confirmed the conclusions of the third-party consultant. In the face of the undisputed record in this matter, no reasonable juror could conclude that Plaintiff’s EEOC charge was the “cause in fact” of her discharge. I. UNDISPUTED FACTS. Home Health provides hospice care and home nursing services for patients in Arizona. [SOF ¶ 1] It provides these services to the infirm and the elderly through a cadre medical or therapeutic providers, some of whom are employees and some of whom are contractors. [SOF ¶ 2] Theresa Lungwitz is the CEO and founder. [SOF ¶¶ 3-4] She has been a Registered Nurse for over 30 years. [SOF ¶ 5] Dianne Tryggestad serves as the Company Administrator. [SOF ¶ 6] She has been in the industry for over 20 years. [SOF ¶¶ 7-8] Lori Thomas serves as the Company’s Operating Officer. [SOF ¶¶ 9-10] She has over 20 years of management experience in the home health industry. [SOF ¶ 11] Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 2 of 18 Active/43794183.13 3 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 The Company hired Plaintiff in February 2007. [SOF ¶ 28] Diane Tryggestad made the hiring decision after working with Plaintiff at a previous employer. [SOF ¶¶ 30- 42] The Company hired Plaintiff to provide clerical assistance to the Company’s long- standing financial executive, Dr. Margaret Irby (“Dr. Margaret”). [SOF ¶¶ 43-45] Dr. Margaret was roughly 79 years of age when the Company hired Plaintiff. [SOF ¶ 46] Plaintiff was 57 when she was hired. [SOF ¶ 41] Home Health has an extremely diverse workforce with respect to gender, age, minority, and disability status. [SOF ¶¶ 141-43] During the time Plaintiff assisted Dr. Margaret with clerical bookkeeping projects, she performed to Dr. Margaret’s apparent expectations. [SOF ¶¶ 44, 47] In August 2007, Plaintiff assumed the newly-created HR manager role while continuing to handle clerical bookkeeping duties. [SOF ¶ 58] In 2010, the Company hired Dr. Vahan Setyan to take over Plaintiff’s bookkeeping role and other payroll duties. [SOF ¶¶ 24, 91- 94, 97] Because Home Health provides medical and therapeutic services, it is subject to intense government regulation and scrutiny. [SOF ¶¶ 64-69] The Company is subject to random audits by federal and state regulators alike. [SOF ¶ 68] These audits can result in deficiencies, fines, and/or termination of a company’s participation in the Medicare program. [SOF ¶¶ 65, 67] Audits frequently assess the credentialing of Home Health care providers. [SOF ¶¶ 65-68] Credentialing, in turn, includes a wide variety of necessary documentation, including an up-to-date TB screen, proof of necessary insurances, sex offender checks, up-to-date state licenses, background checks, OIG checks, and documentation of orientation by the Company. [SOF ¶¶ 66, 115] These items are time sensitive and many need to occur prior to hiring an employee. [SOF ¶¶ 66, 115] As the HR Manager, Plaintiff was responsible for ensuring that provider personnel files were kept current on credentialing, and to ensure that providers timely updated their credentials before they expired. [SOF ¶¶ 61-63] When a provider’s credentials expire, it creates significant scheduling problems for the Company and can impact the care provided to the patient. [SOF ¶¶ 65, 67] Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 3 of 18 Active/43794183.13 4 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 Throughout the course of Plaintiff’s HR role, the Company repeatedly advised her that she needed to take on a more professional/management, as opposed to clerical, role within the Company. [SOF ¶¶ 72, 75-78, 89, 127, 197] This admonition appeared on all of Plaintiff’s performance appraisals. [SOF ¶¶ 72, 75-76, 127, 197] Home Health was a relatively small company when Plaintiff began her employment. [SOF ¶ 60] The Company has grown dramatically since that time, however, and so have the demands on the HR function. [SOF ¶ 61] As a result, the demands of the position seemed to grow beyond Plaintiff’s ability to handle them, hence the repeated urgings to take on more managerial, as opposed to clerical, responsibility. [SOF ¶¶ 61-62, 70-72, 75-90, 101, 105-118, 120-33, 139, 151-56, 162-71, 184-89, 191-98, 207-209, 220-36] In roughly September 2010, Plaintiff did what she admittedly did every year at around that time-she asked for a raise. [SOF ¶¶ 73, 95-96] Nothing in Plaintiff’s request hinted at discrimination of any kind and nothing put Home Health on notice that Plaintiff was opposing practices made unlawful by Title VII or the ADEA at that time. [SOF ¶¶ 95-101] Things came to a head shortly after Plaintiff’s annual raise request in the fall of 2010. The Company anticipated that a government audit was a distinct possibility, and asked Plaintiff to bring the personnel files up to date and ready for an audit. [SOF ¶ 105] Plaintiff went on vacation, however. [SOF ¶ 107] In her absence, Ms. Thomas (the Company’s Operating Officer) reviewed the personnel files and found them to be nothing short of disastrous. [SOF ¶ 106-109] In Plaintiff’s absence, the three most senior Home Health executives, including the Company’s CEO and owner, had to work around the clock to put the personnel files in a state that would pass an audit, which also included running background checks, OIG checks, and/or sex offender checks, which should occur before an employee starts employment. [SOF ¶¶ 114-18] As a result of the audit file debacle, Home Health issued Plaintiff an extremely stern warning on October 15, 2010. [SOF ¶¶ 118-28] The warning required immediate improvement by Plaintiff and warned of possible discharge. [SOF ¶ 126] The warning Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 4 of 18 Active/43794183.13 5 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 first criticized Plaintiff because certain critically important investigatory checks (such as sex offender checks and OIG checks) were not documented in the personnel files, and other necessary documents were also missing. [SOF ¶¶ 120-22] The warning next criticized Plaintiff for her poor time management skills, and noted that Plaintiff failed to take advantage of extra help that had been offered to her. [SOF ¶ 123] The warning also criticized Plaintiff for her poor attitude and for speaking ill of the Company to clerical staff. [SOF ¶¶ 124-25] As was the case in previous performance appraisals, the warning again admonished Plaintiff to become more empowered in the HR Manager function. [SOF ¶ 127] The warning ordered Plaintiff to take responsibility for the development of policies and procedures, ensuring compliance with “Federal and State guidelines,” ensuring employee files are current and up to date, providing orientation to all staff, and tracking personnel items. [SOF ¶ 128] In the face of this ominous performance warning, Plaintiff did what even the most unseasoned HR practitioner might do-she went to the EEOC to file a charge in order to secure some degree of artificial employment security. Plaintiff filed her first EEOC charge on November 1, 2010. [SOF ¶ 134] The charge raised a wide variety of allegations, generally categorized as race, gender, and age discrimination, as well as alleged retaliation. [SOF ¶¶ 135-36, 138] Before Home Health learned of Plaintiff’s first EEOC charge, it issued Plaintiff a follow-up verbal warning. [SOF ¶¶ 139, 151-56] Like the previous warning in October, this November 11, 2010 warning criticized Plaintiff for not finalizing the conversion of administrative files to the new computer system, criticized Plaintiff’s continuing time management problems, criticized Plaintiff’s ongoing duplication issues, and again ordered Plaintiff to empower herself as an HR Manager rather than an HR clerk. [SOF ¶¶ 153-56] Like the prior warning, Home Health instructed Plaintiff that she needed to ask for help when she fell behind. [SOF ¶ 153] And like the prior warning, the November 10 warning advised Plaintiff that future problems could result in discharge. [SOF ¶ 154] Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 5 of 18 Active/43794183.13 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 Home Health received Plaintiff’s first charge from the EEOC after presenting Plaintiff with the November 11, 2010 warning. [SOF ¶ 139] Ms. Lungwitz (the Company’s owner) was admittedly saddened by the charge. [SOF ¶ 140] She approached Plaintiff in bewilderment, asking how Plaintiff could possibly think that a company that employs individuals of all races and genders, and employs many individuals considerably older than Plaintiff, would ever discriminate against her. [SOF ¶¶ 141-44] Ms. Lungwitz tried to salve Plaintiff’s concerns by suggesting that she and Plaintiff could work everything out privately if Plaintiff would withdraw the EEOC charge. [SOF ¶ 145] Obviously, Plaintiff chose not to do so. The Company was forced to walk on eggshells thereafter, for fear of incurring a retaliation claim. [SOF ¶¶ 146-47] Plaintiff failed to embrace Home Health’s instruction to become more empowered and more managerial in HR. From November 2010 into May 2011, the record is replete with examples of Plaintiff’s failure to provide actual HR guidance and management. [SOF ¶¶ 70-72, 75-77, 80-90, 105-33, 139, 151-56, 162-71, 177-79, 184- 98, 207-209, 220-36, 284-85] In particular, Plaintiff had numerous run-ins with the Home Health Director of Nursing, Diane Kazala, who had no knowledge of Plaintiff’s first EEOC charge. [SOF ¶¶ 83, 86, 163-65] These run-ins, among other performance problems, continued into May 2011. [SOF ¶¶ 70, 90, 164-71, 177-79, 184-98] Because Plaintiff was not improving from Home Health’s perspective, in the first quarter of 2011, the Company hired a professional HR consulting firm-C2 Consulting (“C2”). [SOF ¶¶ 172-73] C2 is owned by Carol Dalton. [SOF ¶ 174] Ms. Dalton had almost 30 years of HR experience, including serving as the senior HR executive in a company with 10,000 employees. [SOF ¶ 175] After multiple consultations with C2 to address the ongoing challenges with Plaintiff’s performance, Home Health asked C2 to conduct an audit of Home Health’s HR department. [SOF ¶ 176] As part of the audit, Ms. Dalton shadowed Plaintiff in her HR Manager function for a half-day on May 24, 2011. [SOF ¶ 177] Ms. Dalton verbally shared her results and conclusions with Home Health shortly thereafter, and later submitted a detailed written Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 6 of 18 Active/43794183.13 7 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 audit report. [SOF ¶¶ 181-83] The results of the independent C2 audit were not pretty. Ms. Dalton informed Home Health that: (1) Plaintiff resisted the audit and appeared irritated at the process; (2) Plaintiff was resistant to Ms. Dalton’s suggested improvements; (3) the HR recordkeeping was unorganized and disheveled; (4) Plaintiff failed to prepare and maintain accurate records, files, and reports, including personnel records; (5) Plaintiff was not effectively communicating with staff and management; (6) Plaintiff shied away from more effective means of communicating such as verbal or in-person discussions; (7) personnel policies were outdated; (8) Plaintiff was not adequately advising and keeping the Company up to date on laws, rules, regulations, and policies; (9) Plaintiff was not adequately researching current employment issues to ensure the Company was in compliance with employment laws; (10) Plaintiff was not involved in the hiring and tracking process in any meaningful way; and (11) Plaintiff’s shortcomings exposed Home Health to unnecessary risk and liability. [SOF ¶¶ 184-87] Ms. Dalton also informed Home Health that Plaintiff did not possess the experience or job knowledge to draft or carry out an action plan to improve the HR function or to bring the Company up to date on policies and procedures. [SOF ¶¶ 188-89] Also on May 24, 2011, Home Health issued Plaintiff a written warning for showing up late for a telephonic unemployment compensation hearing. [SOF ¶ 166-71] While Plaintiff’s rendition of the event differs in non-material ways, it is undisputed that Home Health specifically instructed Plaintiff that she needed to participate in the hearing, the hearing was scheduled for 8:00 a.m., the hearing officer called Home Health at that time, Plaintiff was not yet at work or available to take the call, and Plaintiff did not join the call until 8:07, which was after the hearing began. [SOF ¶¶ 166-69, 171] In her deposition, Plaintiff was unable to provide a plausible explanation why she did not give the Company any advance warning that she would be late for the hearing. [SOF ¶ 171] On May 31, 2011, Home Health issued Plaintiff an annual Performance Evaluation. [SOF ¶191] The Evaluation credited Plaintiff in some categories, but repeated Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 7 of 18 Active/43794183.13 8 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 the criticisms of her three recent warnings and the cadre of informal counselling notes and comments she received in the preceding year. [SOF ¶¶ 192-97, 220] While Plaintiff disagreed in writing with the criticisms of her performance [SOF ¶¶ 212-17], her disagreements were largely a matter of personal opinion as opposed to demonstrable challenges to the evaluation, and they are belied by the independent assessments of third- party HR consultants Ms. Dalton of C2 and Kara Gibbs of Diversified Human Resources (“DHR”). [SOF ¶¶ 184-89, 207-209] Although this evaluation repeatedly emphasized Plaintiff’s immediate need to immerse herself in applicable employment laws and policies, Plaintiff testified that she took no steps to do so from receipt of the evaluation until her discharge over a month later. [SOF ¶¶ 193-97, 218-22, 224, 227-31, 234] In light of Plaintiff’s ongoing performance issues, and taking stock of the latest performance evaluation, the Company decided to discharge Plaintiff. In May 2011, the Company began looking for ways to replace Plaintiff and move the HR function forward in a productive manner. [SOF ¶ 200] During this time frame, Home Health spoke with a third-party HR provider, DHR, that also managed the Company’s benefits. [SOF ¶¶ 21, 201] DHR provides HR solutions in a variety of modalities, including outsourcing of back-office HR functions. [SOF ¶ 20] Home Health discussed with DHR its frustrations with the state of the HR situation, and DHR suggested that Home Health outsource its HR functions to DHR. [SOF ¶¶ 201-203] DHR proposed to send one of its HR experts on- site for a capped number of hours per week to replace Plaintiff, to clean up the HR files, and to provide meaningful, substantive HR guidance. [SOF ¶ 205] Home Health entered into a DHR contract for outsourced HR services in early July 2011, while Plaintiff was on vacation. [SOF ¶¶ 19, 204] When Plaintiff returned from vacation, she was discharged. [SOF ¶¶ 218-19] It should be noted that when DHR came on board, it took quick stock of the HR situation at Home Health and concluded that it was in a complete state of disarray. [SOF ¶¶ 207-208] DHR conducted its own audit of the HR function and reached conclusions substantially similar to the C2 audit. [SOF ¶ 209] Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 8 of 18 Active/43794183.13 9 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 After her discharge, Plaintiff filed a second EEOC charge, this time alleging retaliation for filing her first EEOC charge. [SOF ¶¶ 265-68] The second charge alleged that Plaintiff was denied attendance at meetings, required to work at the receptionist’s desk, provided an unfavorable performance warning, and discharged as a result of her first charge. [SOF ¶ 269] II. THE APPLICABLE STANDARD. As this Court observed in Powers v. Arizona Department of Corrections, No. CV-13-00988-PHX-NVW, 2014 WL 3734132 (D. Ariz. July 29, 2014): A motion for summary judgment tests whether the opposing party has sufficient evidence to merit a trial. At its core it questions whether sufficient evidence exists from which a reasonable jury could find in favor of the party opposing the motion. Summary judgment should be granted if the evidence reveals no genuine dispute about any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A material fact is one that might affect the outcome of the suit under the governing law, and a factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party must produce evidence to support its claim or defense by more than simply showing “there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Court must view the evidence in the light most favorable to the nonmoving party, must not weigh the evidence or assess its credibility, and must draw all justifiable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 255. Where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 587. See Powers, 2014 WL 3734132, *4. III. VIRTUALLY ALL OF PLAINTIFF’S CLAIMS ARE TIME-BARRED AND BY DEFINITION FRIVOLOUS. At the initial Scheduling Conference in this matter, the Company raised the obvious timeliness defects of virtually all of Plaintiff’s claims. Plaintiff’s counsel, Mr. Montoya, agreed to analyze these issues and revise his pleadings accordingly. See October 27, 2015 Scheduling Conference Transcript, pgs. 5-7, attached hereto as Exhibit Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 9 of 18 Active/43794183.13 10 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 A; see also email correspondence between counsel dated November to December 2015, attached hereto as Exhibit B (“First, we will stipulate to the dismissal of all claims, except those Title VII claims predicated on Ms. Coleman’s Charge of Discrimination of September 26, 2011.”); see also Stipulation for Leave to File Second Amended Complaint (Doc. 36), pg. 1, lines 19-24. Plaintiff did amend her Complaint to add her husband as a party, but continued to assert the claims this Court previously found wanting. Those claims were and are frivolous because they are inexcusably untimely.1 Plaintiff continues to assert a claim under 42 U.S.C. § 1981. The statute of limitations for such claims is four years. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004). Plaintiff’s position was eliminated on July 11, 2011. [SOF ¶¶ 218- 19] She failed to file this lawsuit until July 15, 2015. The claim is untimely. Plaintiff continues to assert a claim under the ADEA, 29 U.S.C. § 621 et. seq. The statute of limitations for ADEA claims is 90 days from the Notice of Right to Sue (“NRTS”). The EEOC issued its NRTS on Plaintiff’s ADEA claim on October 19, 2011. This claim is clearly untimely. Plaintiff continues to assert claims for gender and race discrimination under Title VII, 42 U.S.C. § 2000e et. seq. The statute of limitations for these claims is also 90 days from the NRTS. The EEOC issued its NRTS on this claim on October 19, 2011. This claim is clearly time barred. Plaintiff may assert that she did not receive the October 19, 2011 NRTS disposing of her Title VII and ADEA claims. This assertion runs afoul of the mailbox presumption. See Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1123 n.4 (9th Cir. 2007) (“[T]he mailbox rule, a long-established principle which presumes that, upon a showing of predicate facts that a communication was sent, the communication reached its destination in regular time.”); Panyanouvong v. Vienna Wolftrap Hotel, 525 F. 1 No more powerful proof of frivolousness can be imagined than Mr. Montoya’s representation to this Court that he was unaware of a second EEOC charge, when, in fact, Mr. Montoya actually attached that very charge to the Complaint. See October 27, 2015 Scheduling Conference Transcript, pg. 5, lines 11-12 (Mr. Montoya: “I didn’t know about that charge.”); pg. 6, lines 15-16 (Mr. Doran: “And the charge that I’m referring to is actually Exhibit 8 of Plaintiff’s complaint.”). Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 10 of 18 Active/43794183.13 11 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 Supp. 2d 793, 796 (D. Va. 2007) (“When the date that a potential plaintiff received actual notice of right to sue is disputed or unknown, Fed.R.Civ.P. 6(e) creates a presumption that notice was received three days after it was mailed.”). Additionally, Plaintiff readily admits that she was aware as of 2012 that the EEOC had closed her case [SOF ¶ 150], so she cannot possibly justify the subsequent three year delay in filing this lawsuit. See Ball v. Abbott Advertising, Inc., 864 F.2d 419, 421 (6th Cir. 1988) (plaintiff’s actual notice of right to sue letter “destroys any possible basis for applying the ‘equitable tolling’ doctrine here”); see also Rhodes v. Raytheon Co., 555 Fed. App’x 665, 668 (9th Cir. 2014). These claims are plainly frivolous on the face of the Complaint. Plaintiff’s counsel informed the Court that he would revisit the pleadings in light of timeliness issues, but chose to double-down by reasserting them in the Amended Complaint. Home Health is entitled to recover its attorneys’ fees with respect to these claims, and it respectfully requests summary judgment as to its entitlement to fees on these claims at this time, with the amount of fees to be adjudicated at the conclusion of the case. IV. PLAINTIFF’S ONLY TIMELY CLAIM-ALLEGED RETALIATION- FAILS BECAUSE SHE CANNOT MEET HER SUMMARY JUDGMENT BURDEN OF PRESENTING A PRIMA FACIE CASE, AND EVEN WERE SHE ABLE TO DO SO, SHE CANNOT ADDUCE PROOF THAT HOME HEALTH’S STATED REASONS FOR HER DISCHARGE ARE FALSE AND THAT THE REAL REASON WAS UNLAWFUL RETALIATION. This Court is undoubtedly familiar with the general burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); and St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). As a general proposition, a plaintiff asserting a claim under Title VII or the ADEA must come forward at the summary judgment stage with a prima facie case. In response, the employer must merely articulate a legitimate, non-discriminatory or non- retaliatory reason for the challenged employment action. The ultimate burden then shifts back to the plaintiff to demonstrate that the employer’s stated reason is false and that the real reason is unlawful discrimination or unlawful retaliation. The plaintiff must rebut the employer’s articulated reason with “specific” and “substantial” proof that the reason is merely a pretext. Hicks, 509 U.S. at 507-508. In order to establish a prima facie claim of Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 11 of 18 Active/43794183.13 12 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 retaliation specifically, Plaintiff must demonstrate that she engaged in protected activity, that she suffered a materially adverse employment action, and that there was a causal relationship between the two. See, e.g., Westendorf v. W. Coast Contractors of Nev., Inc. 712 F.3d 417,422 (9th Cir. 2013). The Supreme Court recently established an exacting standard for assessing retaliation claims under Title VII and the ADEA. See Univ. of Tex., Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (Title VII); Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176 (2009) (ADEA). These cases instruct that the burden of proof in retaliation claims is “but-for” causation, or “causation in fact.” It is therefore not enough for a plaintiff to prove that retaliatory animus played a contributing role in the challenged employment decision. A plaintiff must demonstrate that retaliatory animus was the “cause in fact” for the employment decision. According to the Court in Nassar, use of the more lenient discrimination burden of proof in retaliation cases could contribute to the filing of frivolous claims. In a particularly apt analogy, the Nassar Court observed: Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. 133 S. Ct. at 2532. Prior to Plaintiff engaging in any protected activity, Home Health gave Plaintiff two stern performance warnings. [SOF ¶¶ 118, 120, 123-29, 151-57] Plaintiff, an HR Manager, knew exactly what she should do next-she lodged an unfounded charge of discrimination with the EEOC to insulate her from further discipline or discharge. However, it is undisputed that Home Health’s course of disciplinary action began and even progressed before Home Health learned of the first EEOC charge [SOF ¶¶ 118-29, 134, 139, 151-57], and Plaintiff cannot demonstrate “but for” causation as a result. This is particularly true when Home Health relied on the advice of an independent, seasoned Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 12 of 18 Active/43794183.13 13 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 HR professional who concluded that Plaintiff was ill-suited for her HR Manager role and that the Company’s criticisms of Plaintiff’s performance were completely valid, findings that were later validated by another independent HR professional. [SOF ¶¶ 172, 181, 185, 187-89, 209] A. PLAINTIFF CANNOT PRESENT A PRIMA FACIE RETALIATION CLAIM. Plaintiff cannot make out even a prima facie showing of unlawful retaliation because there is no circumstantial evidence from which to draw an inference of retaliation. First, it is undisputed that a full eight months lapsed between Plaintiff’s first EEOC charge in November 2010 and her discharge in 2011. [SOF ¶¶ 134, 218-219] This substantial gap belies any inference of unlawful retaliation. See Clark County School Dist. v. Breeden, 532 U.S. 268, 273-274 (2001) (per curiam) (holding that only extremely close proximity supports retaliation inference and citing with approval a case where 4- month period was considered too long); see also Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (citing with approval cases where courts held that four month gap is too long); Musolf v. J.C. Penney Co., 773 F.3d 916, 919 (8th Cir. 2014) (no prima facie retaliation claim where seven month gap between protected activity and discharge); Sklyarsky v. Means-Knaus Partners, LP, 777 F.3d 892, 898 (7th Cir. 2015), cert. denied, 135 S. Ct. 2861 (2015) (delay of six months between protected activity and discipline defeats causation). Second, it is undisputed Home Health’s charted course of discipline began before it became aware of the first EEOC charge. Home Health issued Plaintiff two disciplinary warnings before it even knew about the first EEOC charge. [SOF ¶¶ 118, 139, 151] See, e.g., Porter v. City of Lake Lotawana, 651 F.3d 894, 898-99 (8th Cir. 2011) (no retaliation where no knowledge of protected activity); Rivera-Colon v. Mills, 635 F.3d 9, 12-13 (1st Cir. 2011) (same); Vera v. McHugh, 622 F.3d 17, 34-35 (1st Cir. 2010) (same). The negative disciplinary warnings, performance evaluation, and discharge that followed were consistent with and in furtherance of the pre-charge warnings and demonstrate Plaintiff was not performing to Home Health’s satisfaction even before the first charge. Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 13 of 18 Active/43794183.13 14 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 Third, the pre-discharge acts that Plaintiff describes as other forms of unlawful retaliation are nothing of the sort. Plaintiff’s May 24, 2011 write-up and May 31, 2011 evaluation were part of an existing and ongoing course of discipline that pre-dated the first EEOC charge. [SOF ¶ 220] Plaintiff’s remaining complaints with respect to alleged pre-discharge retaliation are truly trivial, ranging from being asked to cover the reception desk in the receptionist’s absence, not being invited to a benefits renewal meeting with an insurer, not being told of someone’s birthday, and the like.2 These do not constitute adverse employment actions, nor do they remotely give rise to an inference of unlawful retaliatory animus. See Burlington Northern & S.F. R. Co. v. White, 548 U.S. 53, 68 (2006) (adverse employment actions are only those that would deter a reasonable employee from engaging in protected activity in the future); Colon-Fontanez v. Municipality of San Juan, 660 F.3d 17, 44-45 (1st Cir. 2011) (long list of slights were episodic, not severe, and did not impact performance); Quinn v. St. Louis Cnty, 653 F.3d 745, 751-53 (8th Cir. 2011) (no retaliation where excluded from meetings, moved, stripped of responsibilities, and yelled at); cf. Baird v. Gotbaum, 792 F.3d 166, 172 (D.C. Cir. 2015) (“long list of trivial incidents is no more a hostile work environment than a pile of feathers is a crushing weight”). B. PLAINTIFF CANNOT SHOW HOME HEALTH’S STATED REASONS FOR THE DISCHARGE ARE FALSE AND THE REAL REASON WAS UNLAWFUL RETALIATORY ANIMUS. Even were Plaintiff to make out a prima facie retaliation claim, she cannot fulfill her summary judgment burden of demonstrating that Home Health’s stated reasons for its actions were false, nor can she demonstrate that the actual reason for its actions was 2 There are legitimate, non-retaliatory explanations for all of these trivialities. Multiple employees were required or asked to cover the reception desk when necessary, including Ms. Thomas, the Company’s Operating Officer. Plaintiff was not asked to do so more than any other comparator. [SOF ¶¶ 52-54] Plaintiff was not invited to the 2011 health plan review with the insurance carrier because the Company was not in a position to make any material changes in the benefits plans and the meeting was more financial in nature, so HR input was unnecessary. [SOF ¶¶ 276-79] Plaintiff was not invited to have some birthday cake for a co-worker because Plaintiff was habitually anti-social and did not attend such events typically, and this was simply an oversight in any event. [SOF ¶¶ 280-81] Additionally, virtually all of these incidents were subsumed by the first EEOC charge and are therefore untimely. Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 14 of 18 Active/43794183.13 15 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 unlawful retaliatory animus. It is undisputed that Plaintiff possessed negligible HR experience, and only of a clerical nature, before she took on the HR Manager role. [SOF ¶¶ 31-34, 37] It is also undisputed that Home Health began significantly criticizing Plaintiff’s performance before learning of the first charge. [SOF ¶¶ 106, 108-115, 118-133, 151-56] In fact, Home Health issued two warnings to Plaintiff prior to learning of that charge - which were in addition to her 2010 performance evaluation that was issued before her EEOC charge and which clearly demonstrated several areas of improvement. [SOF ¶¶ 72, 75-76, 118, 151, 220] Plaintiff disagreed with Home Health’s view of her performance back then, and she continues to do so now. But that does not a genuine factual dispute make. As Justice Souter recently held, “[c]ausation moves forward, not backwards, and no protected conduct after an adverse employment action can serve as the predicate for a retaliation claim.” Pearson v. Mass. Bay Transp. Auth., 723 F.3d 36, 42 (1st Cir. 2013). “Where, as here, adverse employment actions or other problems with an employee predate any knowledge that the employee has engaged in protected activity, it is not permissible to draw the inference that subsequent adverse actions, taken after the employer acquires such knowledge, are motivated by retaliation.” Id. (internal quotations omitted) (emphasis added); see also Breeden, 532 U.S. at 272 (“Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.”). It is also undisputed that Home Health received independent, unbiased corroboration of its serious performance concerns from C2. [SOF ¶¶ 181, 184-85, 187- 89] This undisputed evidence impacts summary judgment two-fold. First, it demonstrates that Home Health’s stated reasons for the discharge were and are true. In other words, Plaintiff cannot satisfy her burden of proving tthe Company’s stated reasons for the discharge were false. See Dillard v. Hyatt Corp., No. 14-56380, __ Fed. App’x __, 2016 WL 4056069, at *1 (9th Cir. July 29, 2016) (to establish pretext, employee must Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 15 of 18 Active/43794183.13 16 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 show “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence”); Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (same); see also Douglas v. Anderson, 656 F.2d 528, 533-34, n. 5 (9th Cir.1981) (holding that audit report of bookstore manager’s mismanagement supported legitimate reason for discharge, and noting focus on “whether there was sufficient evidence of unsatisfactory performance to be a legitimate concern of his employer” and “whether this was the real reason for the termination”); Register v. Honeywell Fed. Mfg. & Techs., LLC, 397 F.3d 1130, 1139 (8th Cir. 2005) (defendant’s reliance on third-party’s assessment was relevant to defendant’s motive on ERISA claim). Second, the undisputed corroboration defeats any possible causal inference of retaliation. Home Health received an unbiased, independent assessment of Plaintiff’s performance that supported Plaintiff’s discharge. [SOF ¶¶ 181, 184-85, 187-89] Whatever speculation Plaintiff might offer as to the Company’s alleged motivation preceding the May 24, 2011 HR audit by C2, it is undisputed that C2 independently criticized Plaintiff’s performance and concluded that Plaintiff lacked the necessary skills for the position. [SOF ¶¶ 177, 184-85, 187-89] Any alleged inference of retaliatory animus is extinguished in the face of this undisputed fact. See, e.g., Curley v. City of North Las Vegas, 772 F.3d 629, 634 (9th Cir. 2014). As the Ninth Circuit held in Curley: “It is true that very close temporal proximity between a protected activity and an adverse employment action can be sufficient evidence of a causal link between the two to support a prima facie showing of retaliation…. But the new information revealed by the City’s investigation defeats any causal inference that might otherwise follow from the temporal proximity between his protected activity and his termination.” Id. (citation omitted). It is also undisputed that a subsequent unbiased, independent audit by DHR confirmed Home Health’s criticisms of Plaintiff’s performance and concluded that Plaintiff was not suited for the HR Manager position. [SOF ¶ 209] The amount of evidence challenging Plaintiff’s performance and suitability for the position is Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 16 of 18 Active/43794183.13 17 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 overwhelming and undisputed. Plaintiff cannot meet her burden at the summary judgment stage. See, e.g., Hamza v. Saks, Inc., 533 Fed. App’x 34 (2d Cir. 2013) (summary judgment affirmed on retaliation claim where employer proffered persuasive evidence of performance and attitude problems). V. SUMMARY JUDGMENT IS REQUIRED ON DAMAGES. It is undisputed that Plaintiff failed to reasonably mitigate her damages. [SOF ¶ 295] Plaintiff is foreclosed from disputing this because she admittedly destroyed evidence going to mitigation. [SOF ¶ 292, 294] See Surowiec v. Capital Title Agency Inc., 790 F.Supp.2d 997, 1005-09 (D. Ariz. 2011) (imposing adverse inference sanction based on spoliation); Pettit v. Smith, 45 F.Supp.3d 1099, 1105-15 (D. Ariz. 2014) (same and precluding evidence created after-the-fact); Leon v. IDX Sys. Corp., 464 F.3d 951, 959-61 (9th Cir. 2006) (affirming dismissal of employee’s retaliation and other employment-related claims where “spoliation threatened to distort the resolution of the case” because the type of evidence destroyed “would likely be at the heart of [the employer’s] defense were [the files] available” (internal punctuation omitted)). Plaintiff’s damages also terminated when she voluntarily moved from the relevant labor market to Tennessee to live with her husband. Regardless, Plaintiff’s damages are limited to back-pay and only up to the date of Plaintiff’s first supplemental Disclosure Statement (March 22, 2016), when Home Health first learned that Plaintiff misappropriated highly confidential patient and employee information that would have been cause for her discharge had the Company learned of it. [SOF ¶ 257] See McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995) (adopting the “after-acquired evidence” defense). VI. CONCLUSION. For these reasons, Home Health respectfully requests an award of summary judgment on all of Plaintiff’s claims and an award of attorneys’ fees for Plaintiff’s continued pursuit of otherwise moribund claims. RESPECTFULLY SUBMITTED this 7th day October, 2016 Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 17 of 18 Active/43794183.13 18 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 SHERMAN & HOWARD L.L.C. By /s/John Alan Doran John Alan Doran Lori Wright Keffer Matthew Hesketh 7033 East Greenway Parkway, Suite 250 Scottsdale, Arizona 85254 Attorneys for Defendants ORIGINAL of the foregoing e-filed with the Court this 7th day of October, 2016 With a copy of the foregoing e-delivered through ECF system this 7th day of October, 2016 to: Stephen Montoya, Esq. Montoya, Jimenez & Pastor, P.A. 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 /s/ Lori Hinkel Case 2:15-cv-01332-NVW Document 82 Filed 10/07/16 Page 18 of 18 EXHIBIT A To Defendant’s Motion for Summary Judgment EXHIBIT A To Defendant’s Motion for Summary Judgment Case 2:15-cv-01332-NVW Document 82-1 Filed 10/07/16 Page 1 of 7 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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Norma Coleman, Plaintiff, vs. Home Health Resources, Inc., et al., Defendants. No. CV 15-1332-PHX-NVW Phoenixr Arizona October 27, 2015 1:31 p.m. BEFORE: THE HONORABLE NEIL V. WAKE, JUDGE REPORTER'S TRANSCRIPT OF PROCEEDINGS (Scheduiing Conference) APPEARANCES: For the Plaintiff: MONTOYA JIMENEZ & PASTOR PA By: Stephen G. Montoya, Esq. 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 For the Defendants: SHERMAN & HOWARD LLC , Phoenix By: John A. Doran, Esq. 7033 E. Greenway Parkway, Suite 250 Scottsdale, Arizona 85254 Official Court Reporter: Laurie A. Adams, RMR, CRR Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, Spc 43 Phoenix, Arizona 85003-2151 (602) 322-7256 Proceedings Reported by Stenographic Court Reporter Transcript Prepared by Computer-Aided Transcription UNITED STATES DISTRICT COURT 1 Case 2:15-cv-01332-NVW Document 82-1 Filed 10/07/16 Page 2 of 7 1 2 P R 0 C E E D I N G S THE COURTROOM DEPUTY: Civil Case 2015-1332, Norma 2 3 Coleman versus Home Health Resources Incorporated, et al. This 4 is the time set for a scheduling conference. 5 6 Counsel, please announce for the record. MR. MONTOYA: Good afternoon, Your Honor. Steve 7 Montoya here on behalf of the plaintiff, Ms. Norma Coleman. 8 Thank you. 9 10 11 12 MR. DORAN: Good afternoon, Your Honor. behalf of the defendants. John Doran on THE COURT: All right. Good afternoon, counsel. Let's see. The initial disclosures have been 13 exchanged. And let's see. No one contemplates any amended 14 pleadings, but I will give you a deadline. As you know, the 15 deadline is never absolute. If things develop in the way that 16 you can meet the criteria of Rule 15, you can always file a 17 motion to amend, the most important being diligence, 18 promptness, and lack of unfairness to the other side. So let's 19 see. What had you requested? November 27. Well, I don't set 20 any deadlines on the day after Thanksgiving. 21 MR. MONTOYA: We're thankful, Your Honor. 22 THE COURT: We'll set November 20 as the soft deadline 23 for motions to amend. I do have some issues with your 24 schedule, but we'll come to that in a minute. 25 Mr. Montoya, who are your comparators for the equal UNITED STATES DISTRICT COURT 13:31:57 13:32:08 13:32:39 13:32:59 13:33:33 Case 2:15-cv-01332-NVW Document 82-1 Filed 10/07/16 Page 3 of 7 5 1 • -"' 2 I think all of this puts the cart before the horse. We're about to file a motion to dismiss virtually all of the claims. 3 THE COURT: What's the-- in 25 words or less, what's 4 the failure to state a claim? 5 MR. DORAN: Everything except the retaliation claim 13:36:53 6 was the subject of an EEOC charge in which a notice of right to 7 sue was issued in October of 2011. So the only claim that 8 survives is the retaliation claim. 9 THE COURT: Mr. Montoya, I can't stand the suspense. 10 What's your answer to that? 13:37:12 11 MR. MONTOYA: A frank one, Your Honor. I didn't know 12 about that charge. But, here's the substantive response is 13 Your Honor knows from reading our complaint, our primary cause 14 of action is one of retaliation in any event, so my response is 15 so what? She won't really have a good harassment claim in the 13:37:31 16 first place. 17 THE COURT: Well, and that would eliminate the equal 18 pay, too, right? 19 MR. MONTOYA: Yes. Arguably, Your Honor. I need to 20 think about it a little bit more before I speak on the record. 13:37:46 21 But the retaliation claim is still not impacted. And as Your 22 Honor knows -- 23 THE COURT: I understand that. Reading all this, you 24 know, all I know is what I read here. 25 MR. MONTOYA: I understand. 13:37:59 UNITED STATES DISTRICT COURT Case 2:15-cv-01332-NVW Document 82-1 Filed 10/07/16 Page 4 of 7 1 2 THE COURT: So nothing I think or say counts for anything yet. But it looked like the retaliation had a better 3 shot than the other. MR. MONTOYA: That's what I thought, Your Honor. 6 4 5 THE COURT: Or maybe to put it other ways, looked like u,3s,u 6 you had virtually no shot at the other. 7 8 MR. MONTOYA: That may be true, Your Honor. I need to thoroughly examine it. However, if I do reach that conclusion, 9 I urge my friend, whom I have known for many years, Mr. Doran, 10 to call me because I don't want to cause him to reinvent the 11 wheel if I admit it's a wheel. 12 13 THE COURT: He's going to do that, right, Mr. Doran? MR. DORAN: Actually, consider yourself called, 14 Stephen. 15 And the charge that I'm referring to is actually 16 Exhibit 8 of plaintiff's complaint. And that's the one that 17 identifies race, retaliation, age, and gender. The second 18 charge identifies only retaliation. And if there's no Equal 19 Pay Act charge alleged in the second one, it hasn't been 20 perfected even if there was a Lilly Ledbetter argument to be 21 made here, which I don't think there is. 22 THE COURT: So you may not be losing anything, Mr. 23 Montoya. You may just be gearing up for a sharper battle. 24 25 So anyway, you all figure that out whether you want to fight over that or not. And it doesn't seem like it should UNITED STATES DISTRICT COURT 13:38:29 13:38:39 13:38:57 13:39:15 Case 2:15-cv-01332-NVW Document 82-1 Filed 10/07/16 Page 5 of 7 1 take very long to make that decision. MR. MONTOYA: Yes, Your Honor. Thank you. 2 3 THE COURT: All right. So -- oh, Mr. Montoya, what 4 about the joinder of the husband? I always grant those 7 5 motions. u:J9:45 6 7 MR. MONTOYA: You know what? I don't know if you always do. I remember on one specific instance you did, and, 8 Your Honor, we object. And I will tell you why. And this is 9 what you previously considered in the other case and, in fact, 10 rejected. See, we believe that to join someone now based upon 11 a potential that may never come to fruition, we believe that 12 doesn't satisfy Article III requirements. Just because Mr. 13 Doran's client may in the future have a potential claim against 14 the spouse doesn't mean they have a ripe complaint against the 13:40:01 15 spouse now. 13:40:26 16 THE COURT: The problem is if it's reduced to judgment 17 for costs it's too late. You can't go back. 18 MR. MONTOYA: Well, you are right if you go that -- if 19 you wait that long. But I think it's way too early to decide 20 21 whether or not he should be joined before, you know, we even know what happens with most of the case. Now, everything is 22 completely theoretical. 23 THE COURT: Well, you know, I have ruled on this 24 before, and I think some years ago Judge Campbell wrote a long 25 order on it, too. It's the intersection of Arizona community UNITED STATES DISTRICT COURT 13:40:39 13:40:54 Case 2:15-cv-01332-NVW Document 82-1 Filed 10/07/16 Page 6 of 7 1 2 3 4 5 25 C E R T I F I C A T E 6 I, LAURIE A. ADAMS, do hereby certify that I am duly 7 appointed and qualified to act as Official Court Reporter for 8 the United States District Court for the District of Arizona. 9 I FURTHER CERTIFY that the foregoing pages constitute 10 a full, true, and accurate transcript of all of that portion of 11 the proceedings contained herein, had in the above-entitled 12 cause on the date specified therein, and that said transcript 13 was prepared under my direction and control. 14 DATED at Phoenix, Arizona, this 3rd day of November, 15 2015. 16 17 s/Laurie A. Adams 18 Laurie A. Adams, RMR, CRR 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Case 2:15-cv-01332-NVW Document 82-1 Filed 10/07/16 Page 7 of 7 EXHIBIT B To Defendant’s Motion for Summary Judgment EXHIBIT B To Defendant’s Motion for Summary Judgment Case 2:15-cv-01332-NVW Document 82-2 Filed 10/07/16 Page 1 of 6 Case 2:15-cv-01332-NVW Document 82-2 Filed 10/07/16 Page 2 of 6 Case 2:15-cv-01332-NVW Document 82-2 Filed 10/07/16 Page 3 of 6 Case 2:15-cv-01332-NVW Document 82-2 Filed 10/07/16 Page 4 of 6 Case 2:15-cv-01332-NVW Document 82-2 Filed 10/07/16 Page 5 of 6 Case 2:15-cv-01332-NVW Document 82-2 Filed 10/07/16 Page 6 of 6