Peterson v. United States Army Corps of Engineers

MOTION for Summary Judgment Def's Motion for Partial Summary Judgment James Schaefer appearing for Defendant United States Army Corps of Engineers. Responses due

D. IdahoMarch 1, 2017

DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 RAFAEL M. GONZALEZ, JR. ACTING UNITED STATES ATTORNEY JOANNE P. RODRIGUEZ, IDAHO STATE BAR NO. 2996 ASSISTANT UNITED STATES ATTORNEY JAMES P. SCHAEFER, CALIFORNIA STATE BAR NO. 250417 ASSISTANT UNITED STATES ATTORNEY DISTRICT OF IDAHO WASHINGTON GROUP PLAZA IV 800 EAST PARK BOULEVARD, SUITE 600 BOISE, ID 83712-7788 TELEPHONE: (208) 334-1211 FACSIMILE: (208) 334-1414 Email: James.Schaefer@usdoj.gov Attorneys for Defendant UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO TREVIS DUANE PETERSON, AN INDIVIDUAL, Plaintiff, v. PATRICK J. MURPHY, Acting Secretary of the Army, UNITED STATES ARMY CORPS OF ENGINEERS, Agency, Defendant. Case No. 2:16-CV-00075-EJL DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 7.1(b)(1), Defendant hereby moves the Court to grant summary judgment in its favor on Plaintiff’s Second Cause of Action. (Dkt. 2 ¶¶ 40-47.) Case 2:16-cv-00075-EJL-REB Document 34 Filed 03/01/17 Page 1 of 3 DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 2 Plaintiff’s Second Cause of Action alleges that Defendant violated the Age Discrimination in Employment Act (“ADEA”) by depriving Plaintiff of a Utility Worker position in retaliation for Plaintiff having engaged in protected ADEA activity. (Id.) Summary judgment is appropriate because Plaintiff cannot establish a causal connection between his protected ADEA activity and his non-selection for the Utility Worker position. Plaintiff cannot do so because he did not engage in protected ADEA activity until after Defendant selected a different applicant for the Utility Worker position. This motion is based on Defendant’s Memorandum in Support of Partial Summary Judgment, Defendant’s Separate Statement of Undisputed Material Facts, the declaration and exhibits filed herewith, any further briefing and evidence submitted to the Court, and any oral argument before the Court. Respectfully submitted this 1st day of March 2017. RAFAEL M. GONZALEZ, JR. ACTING UNITED STATES ATTORNEY By: /s/ James P. Schaefer JAMES P. SCHAEFER Assistant United States Attorney Case 2:16-cv-00075-EJL-REB Document 34 Filed 03/01/17 Page 2 of 3 DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 1st, 2017, the foregoing DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT, MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT, DEFENDANT’S SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT and DECLARATION OF JAMES P. SCHAEFER IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT were electronically filed with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the following person(s): Matthew Z. Crotty Matt@crottyandson.com Thomas G. Jarrard TJarrard@att.net Michael B. Love Mike@micheallovelaw.com /s/ Jessica Black Jessica Black Legal Assistant Case 2:16-cv-00075-EJL-REB Document 34 Filed 03/01/17 Page 3 of 3 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 RAFAEL M. GONZALEZ, JR. ACTING UNITED STATES ATTORNEY JOANNE P. RODRIGUEZ, IDAHO STATE BAR NO. 2996 ASSISTANT UNITED STATES ATTORNEY JAMES P. SCHAEFER, CALIFORNIA STATE BAR NO. 250417 ASSISTANT UNITED STATES ATTORNEY DISTRICT OF IDAHO WASHINGTON GROUP PLAZA IV 800 EAST PARK BOULEVARD, SUITE 600 BOISE, ID 83712-7788 TELEPHONE: (208) 334-1211 FACSIMILE: (208) 334-1414 Email: James.Schaefer@usdoj.gov Attorneys for Defendant UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO TREVIS DUANE PETERSON, AN INDIVIDUAL, Plaintiff, v. PATRICK J. MURPHY, Acting Secretary of the Army, UNITED STATES ARMY CORPS OF ENGINEERS, Agency, Defendant. Case No. 2:16-CV-00075-EJL MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant respectfully requests that the Court grant summary judgment in its favor on Plaintiff’s Second Cause of Action, which alleges that Defendant violated the Age Discrimination in Employment Act (“ADEA”) by depriving Plaintiff of a Utility Worker position in retaliation for Plaintiff engaging in protected ADEA activity. The Court should grant Case 2:16-cv-00075-EJL-REB Document 34-1 Filed 03/01/17 Page 1 of 7 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 2 Defendant summary judgment because Plaintiff did not engage in protected ADEA activity until after Defendant selected a different applicant for the Utility Worker position. Accordingly, as a matter of law, Plaintiff cannot establish the required causal link between his protected ADEA activity and his non-selection for the Utility Worker position. See Bishop v. Donahoe, 479 F. App'x 55 (9th Cir. 2012) (“The district court properly granted summary judgment on Bishop's retaliation claim because Bishop failed to raise a triable dispute as to whether he engaged in a protected activity before his discharge.” (emphasis added)); Trainor v. HEI Hosp., LLC, 699 F.3d 19, 27 (1st Cir. 2012) (“There is a common-sense aspect to causation: to establish that an adverse employment action was caused by an employee's protected activity, the employer's decision to act adversely to the employee must postdate the protected activity.”). I. BACKGROUND In April 2010, Defendant hired Plaintiff as a maintenance worker. (Dkt. No. 2 (“Compl.”) at ¶ 19.) Between August 2011 and April 2015, Plaintiff unsuccessfully applied for eight positions with Defendant, including a Utility Worker position in January 2013. (Id. at ¶¶ 10, 21-23, 25-28, 30-32.) After Defendant selected a different applicant for the Utility Worker position, Plaintiff filed an informal grievance through his union, the International Federation of Professional and Technical Engineers. (Compl. at ¶¶27-28; Declaration of James P. Schaefer in Support of Defendant’s Opposition to Plaintiff’s Rule 702 Motion (“Schaefer Decl.”) ¶ 2 & Ex. 1 (“Peterson Tr.”) at 46:3-47:10.) Plaintiff asserted that Defendant improperly gave hiring preference to members of a different union, the United Power Trades Organization (“UPTO”), by: (1) sending the selecting official a list of qualified applicants that contained only UPTO members; and (2) Case 2:16-cv-00075-EJL-REB Document 34-1 Filed 03/01/17 Page 2 of 7 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 3 not considering non-UPTO applicants such as Plaintiff. (Id.) Subsequently, on July 29, 2013, Plaintiff filed an Equal Employment Opportunity (“EEO”) complaint, alleging that he was not selected for five positions (i.e., Laborer, Budget Tech, Office Support Assistant, Power Plant Mechanic, and Utility Worker) because of his age. (Compl. at ¶ 4; Schaefer Decl. ¶ 3 & Ex. 2 at 1-2.) As to the Utility Worker position, Defendant dismissed the complaint on forum election grounds because Plaintiff’s non-selection was the subject of his union grievance. (Schaefer Decl. ¶ 3 & Ex. 2 at 1-2.) As to the Laborer, Budget Tech, Office Support Assistant and Power Plant Mechanic positions, Defendant dismissed Plaintiff’s complaint as untimely because it was not filed within forty-five days of the alleged discrimination. (Id.) On March 4, 2014, Plaintiff appealed the dismissal of his EEO complaint to the Equal Employment Opportunity Commission (“EEOC”). (Id.; see also Compl. at ¶ 5.) On November 20, 2015, the EEOC affirmed the dismissal of Plaintiff’s complaint as to the Laborer, Budget Tech, Office Support Assistant and Power Plant Mechanic positions because claims based on those positions are time-barred. (Schaefer Decl. ¶ 3 & Ex. 2 at 2-3.) As to the Utility Worker position, the EEOC reversed because it could not determine from the evidence submitted whether the applicable collective bargaining agreement allowed for discrimination-based grievances. (Id.) The EEOC did not reach the merits of Plaintiff’s claim that he was denied the Utility Worker position because of his age. (Id.) In April 2015, Plaintiff voluntarily resigned and restarted the construction business that he left in 2010 due to an economic downturn. (Peterson Tr. at 14:13-16:25; 73:5-9; 74:8-15.) On February 18, 2016, Plaintiff filed a Complaint in the United States District Court for the District of Idaho that contains two causes of action. (See Compl. at ¶¶ 33-39 (First Cause of Case 2:16-cv-00075-EJL-REB Document 34-1 Filed 03/01/17 Page 3 of 7 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 4 Action (Age Discrimination in Violation of the ADEA, 29 U.S.C. § 631-34)); 40-47 (Second Cause of Action (Retaliation in Violation of the ADEA, 29 U.S.C. § 631-34)).) Plaintiff’s first cause of action alleges age discrimination and is expressly based on his non-selection for the Utility Worker position: “Defendants violated Peterson’s rights by depriving him of the Powerhouse Utility Worker position at the Abani [sic] Falls Dam, based upon his age by hiring a less qualified, substantially younger employee of [Defendant].” (Dkt. 2 ¶ 36 (emphasis added); see also id. ¶ 39 (seeking placement in the Utility Worker position).) Plaintiff’s second cause of action alleges retaliation and is expressly based on his non- selection for the Utility Worker position: “Defendants violated Peterson’s rights by depriving him of the Powerhouse Utility Worker position at the Abani [sic] Falls Dam, based upon Peterson’s opposition to unlawful practices, by denying Peterson employment opportunities, and hiring a less qualified, substantially younger employee of [Defendant].” (Dkt. 2 ¶ 44 (emphasis added); see also id. ¶ 47 (seeking placement in the Utility Worker position).) On May 6, 2016, Defendant answered Plaintiff’s Complaint, denying liability and asserting that the selection official “had legitimate, non-discriminatory reasons for his selection decisions.” (Dkt. No. 12 at 10.) Plaintiff has not sought leave to amend his Complaint to allege causes of action related to the Laborer, Budget Tech, Office Support Assistant, Power Plant Mechanic, Painter, or Maintenance Worker Lead positions. (Schaefer Decl. ¶ 4.) II. ARGUMENT A. Legal Standard Summary judgment is appropriate where a party can show that, as to any claim or defense, “there is no genuine dispute as to any material fact and the movant is entitled to Case 2:16-cv-00075-EJL-REB Document 34-1 Filed 03/01/17 Page 4 of 7 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 5 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of the summary judgment “is to isolate and dispose of factually unsupported claims . . ..” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). It is not “a disfavored procedural shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. Where, as here, the nonmoving party bears the ultimate burden of proof at trial on a dispositive issue, the moving party may obtain summary judgment by doing no more than “pointing out to the district court ... that there is an absence of evidence to support the non- moving party's case.” Celotex, 477 U.S. at 325; see also Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). To do so, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000). If the moving party does so, the burden shifts to the non-moving party to produce evidence sufficient to support a jury verdict in his favor. Devereaux, 263 F.3d at 1076. The non-moving party must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a genuine dispute of material fact exists. Celotex, 477 U.S. at 324. B. The Court Should Grant Summary Judgment Because Plaintiff Cannot Establish A Causal Connection Between His Protected ADEA Activity And His Non-Selection For The Utility Worker Position The ADEA prohibits retaliatory behavior by an employer against an employee who has complained of age discrimination. See Gomez-Perez v. Potter, 553 U.S. 474 (2008) (holding the ADEA prohibits retaliation against federal employees). Case 2:16-cv-00075-EJL-REB Document 34-1 Filed 03/01/17 Page 5 of 7 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 6 On summary judgment, allegations of ADEA retaliation are analyzed under the familiar three-part burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which requires the plaintiff to make out a prima facie case of retaliation. Id.; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To do so, a plaintiff must show: “(1) that the plaintiff was engaged in a protected activity under the act[]; (2) that he was thereafter subjected by his employer to adverse employment action; and (3) that a causal link exists between the two.” Wallis v. J. R. Simplot Co., No. CIV. NO. 91-0013, 1992 WL 613355, at *1 (D. Idaho July 6, 1992), aff'd sub nom. Wallis v. J.R. Simplot Co., 26 F.3d 885 (9th Cir. 1994), as amended on denial of reh'g (July 14, 1994). To demonstrate the required causal link, a plaintiff must show that his protected ADEA activity was the “but-for” cause of the alleged adverse employment action. See Cramblett v. McHugh, No. 3:10-CV-54-PK, 2014 WL 2093600, at *11 (D. Or. May 19, 2014) (citing Shelley v. Geren, 666 F.3d 599 (9th Cir.2012) (“To prevail on a claim for age discrimination under the ADEA, a plaintiff must prove at trial that age was the “but-for” cause of the employer's adverse action.”)). Courts routinely dispose of retaliation claims where the plaintiff cannot establish the required causal connection because he or she did not engage in protected activity prior to the alleged adverse employment action. See, e.g., Rodríguez-Cruz v. Stewart Title Puerto Rico, Inc., No. CV 14-1534 (GAG), 2016 WL 4991531, at *13 (D.P.R. Sept. 19, 2016) (“Plaintiff cannot show causation because she engaged in no protected activity before either of those events.”); Coleman v. Johnson, 19 F. Supp. 3d 126, 135 (D.D.C. 2014) (“Mr. Coleman cannot have suffered retaliation in October 2010 for actions he took in December 2010.”); Muffoletto v. Christus St. Vincent Reg'l Med. Ctr., 157 F. Supp. 3d 1107, 1118 (D.N.M. 2015) (“Plaintiff has Case 2:16-cv-00075-EJL-REB Document 34-1 Filed 03/01/17 Page 6 of 7 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 7 not alleged that she engaged in protected activity until after the first adverse employment action about which she complains.”); Baptiste v. N.Y. City Transit Auth., No. 02 CIV. 6377 (NRB), 2004 WL 626198, at *7 (S.D.N.Y. Mar. 29, 2004) (“As plaintiff did not engage in the protected activity until after the occurrence of the alleged adverse employment actions, he cannot show any causal connection between the alleged adverse employment actions and his protected activities. Accordingly, his retaliation claims are dismissed.”). Here, Plaintiff cannot carry his burden of making out a prima facie case of ADEA retaliation because he did not engage in protected ADEA activity prior to his non-selection for the Utility Worker position. Rather, as alleged in the Complaint and confirmed during discovery, Plaintiff filed an EEO complaint in response to Defendant selecting a different applicant for the Utility Worker position. (Compl. ¶¶ 10, 27-29; Peterson Tr. at 46:3-13.) Accordingly, the Court should grant summary judgment for Defendant on Plaintiff’s Second Cause of Action. III. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court grant summary judgment in its favor on Plaintiff’s Second Cause of Action. Dated this 1st day of March 2017. RAFAEL M. GONZALEZ, JR. ACTING UNITED STATES ATTORNEY By: /s/ James P. Schaefer JAMES P. SCHAEFER Assistant United States Attorney Case 2:16-cv-00075-EJL-REB Document 34-1 Filed 03/01/17 Page 7 of 7 DEFENDANT’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 RAFAEL M. GONZALEZ, JR. ACTING UNITED STATES ATTORNEY JOANNE P. RODRIGUEZ, IDAHO STATE BAR NO. 2996 ASSISTANT UNITED STATES ATTORNEY JAMES P. SCHAEFER, CALIFORNIA STATE BAR NO. 250417 ASSISTANT UNITED STATES ATTORNEY DISTRICT OF IDAHO WASHINGTON GROUP PLAZA IV 800 EAST PARK BOULEVARD, SUITE 600 BOISE, ID 83712-7788 TELEPHONE: (208) 334-1211 FACSIMILE: (208) 334-1414 Email: James.Schaefer@usdoj.gov Attorneys for Defendant UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO TREVIS DUANE PETERSON, AN INDIVIDUAL, Plaintiff, v. PATRICK J. MURPHY, Acting Secretary of the Army, UNITED STATES ARMY CORPS OF ENGINEERS, Agency, Defendant. Case No. 2:16-CV-00075-EJL DEFENDANT’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to Local Rule 7.1(b)(1), Defendant submits this separate statement of material facts that it contends are not in dispute. 1. In April 2010, Defendant hired Plaintiff as a maintenance worker. (Dkt. No. 2 (“Compl.”) at ¶ 19.) Case 2:16-cv-00075-EJL-REB Document 34-2 Filed 03/01/17 Page 1 of 4 DEFENDANT’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 2 2. Between August 2011 and April 2015, Plaintiff unsuccessfully applied for eight positions with Defendant, including a Utility Worker position in January 2013. (Id. at ¶¶ 10, 21- 23, 25-28, 30-32.) 3. After Defendant selected a different applicant for the Utility Worker position, Plaintiff filed an informal grievance through his union, the International Federation of Professional and Technical Engineers. (Compl. at ¶¶27-28; Declaration of James P. Schaefer in Support of Defendant’s Opposition to Plaintiff’s Rule 702 Motion (“Schaefer Decl.”) ¶ 2 & Ex. 1 (“Peterson Tr.”) at 46:14-47:10.) 4. Plaintiff’s informal union grievance asserted that Defendant improperly gave hiring preference to members of a different union, the United Power Trades Organization (“UPTO”), by: (1) sending the selecting official a list of qualified applicants that contained only UPTO members; and (2) not considering non-UPTO applicants such as Plaintiff. (Id.) 5. Subsequently, on July 29, 2013, Plaintiff filed an Equal Employment Opportunity (“EEO”) complaint, alleging that he was not selected for five positions (i.e., Laborer, Budget Tech, Office Support Assistant, Power Plant Mechanic, and Utility Worker) because of his age. (Compl. at ¶ 4; Schaefer Decl. ¶ 3 & Ex. 2 at 1-2.) As to the Utility Worker position, Defendant dismissed the complaint on forum election grounds because Plaintiff’s non-selection was the subject of his union grievance. (Schaefer Decl. ¶ 3 & Ex. 2 at 1-2.) As to the Laborer, Budget Tech, Office Support Assistant and Power Plant Mechanic positions, Defendant dismissed Plaintiff’s complaint as untimely because it was not filed within forty-five days of the alleged discrimination. (Id.) 6. On March 4, 2014, Plaintiff appealed the dismissal of his EEO complaint to the Equal Employment Opportunity Commission (“EEOC”). (Id.; see also Compl. at ¶ 5.) Case 2:16-cv-00075-EJL-REB Document 34-2 Filed 03/01/17 Page 2 of 4 DEFENDANT’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 3 7. On November 20, 2015, the EEOC affirmed the dismissal of Plaintiff’s complaint as to the Laborer, Budget Tech, Office Support Assistant and Power Plant Mechanic positions because claims based on those positions are time-barred. (Schaefer Decl. ¶ 3 & Ex. 2 at 2-3.) As to the Utility Worker position, the EEOC reversed because it could not determine from the evidence submitted whether the applicable collective bargaining agreement allowed for discrimination-based grievances. (Id.) 8. On February 18, 2016, Plaintiff filed an Age Discrimination in Employment Act Complaint in this Court that contains two causes of action. (Compl. at ¶¶ 33-39 (First Cause of Action (Age Discrimination in Violation of the ADEA, 29 U.S.C. § 631-34)); 40-47 (Second Cause of Action (Retaliation in Violation of the ADEA, 29 U.S.C. § 631-34)).) 9. Plaintiff’s first cause of action alleges age discrimination and is expressly based solely on his non-selection for the Utility Worker position: “Defendants violated Peterson’s rights by depriving him of the Powerhouse Utility Worker position at the Abani [sic] Falls Dam, based upon his age by hiring a less qualified, substantially younger employee of [Defendant].” (Dkt. 2 ¶ 36 (emphasis added); see also id. ¶ 39 (seeking placement in the Utility Worker position).) 10. Plaintiff’s second cause of action alleges retaliation and is expressly based solely on his non-selection for the Utility Worker position: “Defendants violated Peterson’s rights by depriving him of the Powerhouse Utility Worker position at the Abani [sic] Falls Dam, based upon Peterson’s opposition to unlawful practices, by denying Peterson employment opportunities, and hiring a less qualified, substantially younger employee of [Defendant].” (Dkt. 2 ¶ 44 (emphasis added); see also id. ¶ 47 (seeking placement in the Utility Worker position).) Case 2:16-cv-00075-EJL-REB Document 34-2 Filed 03/01/17 Page 3 of 4 DEFENDANT’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 4 11. On May 6, 2016, Defendant answered Plaintiff’s Complaint, denying liability and asserting that the selection official “had legitimate, non-discriminatory reasons for his selection decisions.” (Dkt. No. 12 at 10.) 12. Plaintiff did not engage in protected ADEA activity prior to Defendant selecting a different applicant for the Utility Worker position. Rather, as alleged in the complaint and confirmed during discovery, Plaintiff filed an EEO complaint in response to Defendant selecting a different applicant for the Utility Worker position. (Compl. ¶¶ 10, 27-29; Peterson Tr. at 46:3- 13.) 13. Plaintiff’s non-selection for the Utility Worker position was not caused by his subsequent filing of an EEO complaint. Respectfully submitted this 1st day of March 2017. RAFAEL M. GONZALEZ, JR. ACTING UNITED STATES ATTORNEY By: /s/ James P. Schaefer JAMES P. SCHAEFER Assistant United States Attorney Case 2:16-cv-00075-EJL-REB Document 34-2 Filed 03/01/17 Page 4 of 4 DECLARATION OF JAMES P. SCHAEFER IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 RAFAEL M. GONZALEZ, JR. ACTING UNITED STATES ATTORNEY JOANNE P. RODRIGUEZ, IDAHO STATE BAR NO. 2996 ASSISTANT UNITED STATES ATTORNEY JAMES P. SCHAEFER, CALIFORNIA STATE BAR NO. 250417 ASSISTANT UNITED STATES ATTORNEY DISTRICT OF IDAHO WASHINGTON GROUP PLAZA IV 800 EAST PARK BOULEVARD, SUITE 600 BOISE, ID 83712-7788 TELEPHONE: (208) 334-1211 FACSIMILE: (208) 334-1414 Email: James.Schaefer@usdoj.gov Attorneys for Defendant UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO TREVIS DUANE PETERSON, AN INDIVIDUAL, Plaintiff, v. PATRICK J. MURPHY, Acting Secretary of the Army, UNITED STATES ARMY CORPS OF ENGINEERS, Agency, Defendant. Case No. 2:16-CV-00075-EJL DECLARATION OF JAMES P. SCHAEFER IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT I, James P. Schaefer, pursuant to 28 U.S.C. § 1746, declare as follows: 1. I am employed as an Assistant United States Attorney with the United States Attorney’s Office for the District of Idaho. I am currently assigned to the above-captioned case. 2. Attached hereto as Exhibit 1 are excerpts of the transcript of Plaintiff Trevis Duane Peterson’s deposition. Case 2:16-cv-00075-EJL-REB Document 34-3 Filed 03/01/17 Page 1 of 2 DECLARATION OF JAMES P. SCHAEFER IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 2 3. Attached hereto as Exhibit 2 is a copy of the Equal Employment Opportunity Commission, Office of Federal Operation’s decision in Peterson v. McHugh, Appeal No. 0120151471. 4. Plaintiff has not sought leave to amend his complaint. I declare under penalty of perjury that the foregoing is true and correct. Executed on March 1, 2017. /s/ James P. Schaefer James P. Schaefer Assistant United States Attorney Case 2:16-cv-00075-EJL-REB Document 34-3 Filed 03/01/17 Page 2 of 2 Exhibit 1 Case 2:16-cv-00075-EJL-REB Document 34-4 Filed 03/01/17 Page 1 of 6 ·1· · · · · · · · UNITED STATES DISTRICT COURT ·2· · · · · · · · · FOR THE DISTRICT OF IDAHO ·3· · · · · · · · · · · · · ·--oOo-- ·4· ·TREVIS DUANE PETERSON,· · · ) · · · · · · · · · · · · · · · · ·) ·5· · · · · · · Plaintiff,· · · ·) · · · · · · · · · · · · · · · · ·) ·6· · · ·vs.· · · · · · · · · · ·) Case No. 2:16-CV-00075-EJL · · · · · · · · · · · · · · · · ·) ·7· ·PATRICK J. MURPHY, Acting· ·) · · ·Secretary of the Army,· · · ) ·8· ·UNITED STATES ARMY CORPS· · ) · · ·OF ENGINEERS, Agency,· · · ·) ·9· · · · · · · · · · · · · · · ·) · · · · · · · · Defendant.· · · ·) 10· ·__________________________· ) 11 12 13· · · · · · ·DEPOSITION OF TREVIS DUANE PETERSON 14· · · · · · · · · · · ·October 5, 2016 15 16 17 18 19 20 21· ·CDA Reporting Court Reporters · · ·401 Front Avenue, Suite 215 22· ·Coeur d'Alene, Idaho 83814 · · ·ID Ph. 208.765.3666· WA Ph. 509.703.6600· Fax 23· ·208.676.8903 · · ·Toll Free 888.894.CDAR 24· ·www.cdareporting.com 25· ·REPORTED BY:· DIANE M. BOLAN, RPR, CRR, CSR 473 Case 2:16-cv-00075-EJL-REB Document 34-4 Filed 03/01/17 Page 2 of 6 Page 14 ·1· · · · A.· · ·E-7. ·2· · · · Q.· · ·And what year did you actually retire? ·3· · · · A.· · ·2006. ·4· · · · Q.· · ·And so you retired in Nevada.· Did you go ·5· ·somewhere else? ·6· · · · A.· · ·No, I came straight back home here to ·7· ·Oldtown, Idaho. ·8· · · · Q.· · ·Is this where you had grown up? ·9· · · · A.· · ·Yes, I was born in Oldtown.· Well, I was 10· ·born in Newport, Washington, because that's where the 11· ·hospital is, which is right across the street from 12· ·Oldtown. 13· · · · Q.· · ·So how were you next employed between when 14· ·you retired from the Air Force and when you went to the 15· ·Army Corps?· Tell me your employment history. 16· · · · A.· · ·I took a year... 17· · · · · · · ·When I came home, my dad, he had a few 18· ·rental houses, and so over the years, he had sold them, 19· ·and he had kept one that was one of the nicer ones, and 20· ·when I came back, I took a year off, got a construction 21· ·loan through the bank, and basically paid myself to 22· ·build my own house there that me and my family could 23· ·live in. 24· · · · Q.· · ·And your family consisted of? 25· · · · A.· · ·Myself, my wife, and I had two sons and a Page 15 ·1· ·daughter. ·2· · · · Q.· · ·And so you took a year to build a house you ·3· ·said, about a year? ·4· · · · A.· · ·Yes. ·5· · · · Q.· · ·And then? ·6· · · · A.· · ·And then I went into the construction ·7· ·business with a friend of mine under my -- just an ·8· ·assumed.· I got a dba business. ·9· · · · Q.· · ·What was the name of your dba? 10· · · · A.· · ·Peterson Homes. 11· · · · Q.· · ·How long was Peterson Homes in business? 12· · · · A.· · ·I kept it active even through the time I 13· ·was employed with the Corps of Engineers, and I just 14· ·changed it last year to T&L Peterson Homes, LLC. 15· · · · Q.· · ·Why did you change that? 16· · · · A.· · ·Because I was getting more busy and I 17· ·wanted to separate my business from my personal life, 18· ·so I LLC'd my business. 19· · · · Q.· · ·As Peterson Homes, how many homes did you 20· ·build? 21· · · · A.· · ·Two homes, eight pole barns. 22· · · · Q.· · ·Pole, p-o-l-e? 23· · · · A.· · ·P-o-l-e, pole barns.· And five remodels, 24· ·interior remodel jobs. 25· · · · Q.· · ·And, now, is that what you're doing again Page 16 ·1· ·now? ·2· · · · A.· · ·Yes. ·3· · · · Q.· · ·That's what you're telling me? ·4· · · · A.· · ·Yes. ·5· · · · Q.· · ·And since you left the Army Corps, that is ·6· ·what you've been doing? ·7· · · · A.· · ·Yes. ·8· · · · Q.· · ·Okay.· It's a partnership with somebody? ·9· ·You said Peterson Homes was a partnership? 10· · · · A.· · ·Yeah, it included my son.· I brought my son 11· ·into the business. 12· · · · Q.· · ·And is he still in business with you? 13· · · · A.· · ·Yes. 14· · · · Q.· · ·So why did you apply initially to Army 15· ·Corps? 16· · · · A.· · ·Well, 2007, the economy started to go 17· ·haywire, and in our area here, construction virtually 18· ·shut down to nothing, so there was -- I was looking at 19· ·no job, employment.· And then a position at Albeni 20· ·Falls Dam came open for a maintenance person, which was 21· ·a very broad spectrum application of experience, and 22· ·when I looked at it, I had the experience in every 23· ·level of the aspects that they were looking for.· The 24· ·pay wasn't great, but the job was needed because the 25· ·economy was shut down. Page 17 ·1· · · · Q.· · ·Was it a GS level? ·2· · · · A.· · ·No, it was a wage rate level. ·3· · · · Q.· · ·What wage? ·4· · · · A.· · ·Wage Grade 8. ·5· · · · Q.· · ·And for maintenance, did that mean sort of ·6· ·handyman, generally, kind of everything? ·7· · · · A.· · ·Well, Albeni Falls Dam is in control of ·8· ·most of Pend Oreille lake, the Clark Fork up to Cabinet ·9· ·Gorge Dam almost.· Surrounding, there's numerous 10· ·different locations around that whole water system that 11· ·the Army Corps of Engineers owned, plus we have the 12· ·drift yard up the Clark Fork, and then there's five 13· ·parks that we have that are camping parks.· Some are 14· ·just visitation and boat launch type parks.· But that 15· ·was our mainstay of our whole summer was maintaining 16· ·and keeping those parks operating, open. 17· · · · · · · ·And then in the fall, we would de-waterize 18· ·them and shut them down and get them ready for winter. 19· ·And then during the winter, we would fix or repair the 20· ·things that we needed to have them ready for the next 21· ·season. 22· · · · Q.· · ·So you weren't really doing maintenance 23· ·inside the dam structures. 24· · · · A.· · ·No, we were separately located on top of 25· ·the hill above the dam. Case 2:16-cv-00075-EJL-REB Document 34-4 Filed 03/01/17 Page 3 of 6 Page 46 ·1· · · · A.· · ·That would have been even more substantial ·2· ·than the utility worker position. ·3· · · · Q.· · ·Okay.· So tell me about your experience ·4· ·with the utility worker.· Were you interviewed?· Excuse ·5· ·me.· Utility worker position.· Were you interviewed for ·6· ·that position?· This is 2013. ·7· · · · A.· · ·The utility worker position no one got ·8· ·interviewed for.· It was done illegally.· And that is ·9· ·when I said, I've had enough, this is five times in a 10· ·row, and that is when I filed my two grievances, one 11· ·with the IFPTE for an illegal hiring practice of the 12· ·utility worker and one with the Seattle District EEO 13· ·office for age discrimination. 14· · · · Q.· · ·Did you make the list -- was there a list 15· ·made? 16· · · · A.· · ·A list was never asked for, so a list was 17· ·never produced.· In the UPTO union agreement, behind 18· ·closed door policy with Seattle District, the commander 19· ·and the UPTO union leader had meetings and they created 20· ·a document that allows UPTO members to be the first to 21· ·be looked at for any position within a power plant 22· ·section.· So they get ten days of time for any 23· ·applicants within the UPTO union, applicants that are 24· ·UPTO members.· They get to send their applications to 25· ·that job listing, and the selecting official gets ten Page 47 ·1· ·days to look at those applications.· At that point, the ·2· ·selecting official is then supposed to call out to the ·3· ·office in Seattle to send him either the top five, the ·4· ·top ten, the top 50, whatever he wants in applicants ·5· ·that are outside of the UPTO union applicants. ·6· · · · Q.· · ·Okay. ·7· · · · A.· · ·So at this point, Glen Tauscher once again ·8· ·did not ask for this list.· He just selected directly ·9· ·from the only applicant that he wanted to have chosen 10· ·for the job.· Nobody else was looked at. 11· · · · Q.· · ·Okay.· Now, is the person that he selected, 12· ·was he on that list of people from the union list? 13· · · · A.· · ·The person he selected was Anthony Carlock, 14· ·which was the person who got the laborer position in 15· ·the very beginning of all this.· He just promoted him 16· ·straight into the utility worker position without an 17· ·interview, without looking at any other applicants, 18· ·without doing anything.· He just chose him straight off 19· ·the list and that was the end of it. 20· · · · Q.· · ·Okay.· So let me back up. 21· · · · · · · ·Did you find out that there was this job 22· ·opening, utility worker job, because it was on USA 23· ·Jobs? 24· · · · A.· · ·Yes. 25· · · · Q.· · ·And did you fill out an application? Page 48 ·1· · · · A.· · ·Yes.· Prior to the application, I went down ·2· ·to see Glen Tauscher, who was the hiring official, and ·3· ·I specifically asked him, is this job open to all of ·4· ·us, it says in the format for the application it is ·5· ·open to all of us employees with U.S. Seattle District ·6· ·Corps of Engineers. ·7· · · · Q.· · ·Didn't specify you had to be in the union. ·8· · · · A.· · ·No, just open to all. ·9· · · · Q.· · ·Yes. 10· · · · A.· · ·And his response was, yes, you are eligible 11· ·for this position.· Everybody that's in the Seattle 12· ·District, we were under hiring freezes at the time, so 13· ·they limited it to just civilian employees in the 14· ·Seattle District. 15· · · · Q.· · ·And Mr. Tauscher's job was what? 16· · · · A.· · ·I don't know his exact title. 17· · · · Q.· · ·Okay. 18· · · · A.· · ·I can say that he was the head guy of that 19· ·section down there. 20· · · · Q.· · ·Okay.· And so did you tell him, so I'm 21· ·going to apply? 22· · · · A.· · ·Yes. 23· · · · Q.· · ·Okay.· And he said what to you? 24· · · · A.· · ·He said, good luck. 25· · · · Q.· · ·Okay.· So then you applied, and then what's Page 49 ·1· ·the next thing you hear about on this job, the next ·2· ·thing that happened? ·3· · · · A.· · ·Well, prior to any of this, I had three ·4· ·individuals that work with Glen Tauscher come and tell ·5· ·me two weeks prior to this job even being posted as an ·6· ·open position that Glen Tauscher was walking around in ·7· ·their break room or any position in the dam, and every ·8· ·time he saw Anthony Carlock, he said, hey, look, ·9· ·there's my new utility worker.· This is two weeks prior 10· ·to this job even being listed. 11· · · · Q.· · ·So who were those people that told you 12· ·that, told you that they overheard that? 13· · · · A.· · ·William Manwill, Stu -- all I know is his 14· ·name is Stu.· Even on his answering machine at the dam, 15· ·it says Stu.· But I know his name is Stuart.· He was 16· ·the next person under Glen Tauscher.· And then one of 17· ·the electricians, and I can't remember his name at this 18· ·time. 19· · · · Q.· · ·Okay.· And did they relay this information 20· ·to you? 21· · · · A.· · ·Yes. 22· · · · Q.· · ·Did they relay it to you, though -- I'm 23· ·wondering when; before you applied or after you 24· ·applied? 25· · · · A.· · ·Before I applied. Case 2:16-cv-00075-EJL-REB Document 34-4 Filed 03/01/17 Page 4 of 6 Page 70 ·1· ·to the office and put in my paperwork to resign from ·2· ·the U.S. Army Corps of Engineers because I knew that -- ·3· ·I knew I didn't get the job.· And then five minutes ·4· ·after I put in my resignation papers, he showed up to ·5· ·the compound where I was working, and he said, oh, ·6· ·yeah, I didn't select you for the job, and I said, ·7· ·okay. ·8· · · · Q.· · ·And you said, doesn't matter, I'm leaving? ·9· · · · A.· · ·I said, I'm going, yeah. 10· · · · Q.· · ·And then did you retire a couple of weeks 11· ·later or quit -- 12· · · · A.· · ·The process, yeah.· It's a two weeks notice 13· ·type process. 14· · · · Q.· · ·Okay. 15· · · · A.· · ·There's a lot of paperwork to fill out and 16· ·a lot of -- just like getting out of any branch of the 17· ·government, there's a lot of offices that have to have 18· ·requirements met to relieve you of your duties. 19· · · · Q.· · ·Yeah.· After applying for five or six jobs 20· ·pretty regularly, it looks like from the scheduling, 21· ·there was a year-and-a-half to upwards of two years 22· ·between the Walla Walla job application and your 23· ·maintenance worker leader application.· Were there 24· ·other jobs that you were applying for during that time, 25· ·or why did you stop applying for jobs then? Page 71 ·1· · · · A.· · ·There was one other job, which was the ·2· ·warehouse position.· Theresa Gavin was put on medical ·3· ·leave, so her position in the warehouse came open, ·4· ·which is, like I said, in my 22 years of service in the ·5· ·Air Force, I ran the warehouse. ·6· · · · · · · ·So I went to USA Jobs and applied for the ·7· ·warehouse position, but there was a glitch in their ·8· ·system, and I didn't catch it.· And the day before, the ·9· ·final day for applications to go in, I notice that my 10· ·application was sitting in there just in la la land. 11· ·It didn't -- it hadn't proceeded through. 12· · · · · · · ·And so I went to resubmit it and make it go 13· ·through, and it popped back with a their system is down 14· ·error.· So I waited an hour, and I went back and I 15· ·tried.· And so I was going to apply for that position, 16· ·but the USA Jobs website was having issues with my 17· ·computer or something, and so then it didn't allow me 18· ·to, and I missed the cutoff. 19· · · · · · · ·The next Monday I went and saw Shelley 20· ·West.· I said, look, I want to apply for this position, 21· ·and she said, oh, well, Alana is applying for it, too, 22· ·which Alana McGuire is another one of the younger 23· ·people that got the job for the office position and... 24· · · · Q.· · ·Office support position? 25· · · · A.· · ·Office support position.· That was Alana Page 72 ·1· ·McGuire. ·2· · · · · · · ·And she said, oh, Alana is applying for ·3· ·that job, too.· And I said, well, the computer system ·4· ·wouldn't let me apply.· I printed off the screen print ·5· ·showing that.· And she said, well, you need to get with ·6· ·USA Jobs and their website people and find out.· And ·7· ·then their website people when I contacted them said ·8· ·they're not showing any error reports in their code ·9· ·book. 10· · · · · · · ·So I was pretty much nixed out of applying 11· ·for that job through the USA Jobs website.· But Alana 12· ·McGuire got the job, so if I had applied, I can't 13· ·speculate what would have come from that. 14· · · · Q.· · ·Any others that you contemplated during 15· ·that time? 16· · · · A.· · ·No. 17· · · · Q.· · ·Okay. 18· · · · A.· · ·This whole EEO process ate up so much of my 19· ·time.· It went on for three years.· I got to the point 20· ·that I didn't have time to have my own personal life, 21· ·take care of that and all the work at work, and so I 22· ·had already been discriminated against five times, and 23· ·I got to the point, well, what's the point of going on 24· ·any further? 25· · · · · · · ·The warehouse job came open, and I said, Page 73 ·1· ·oh, we don't have many positions that ever come open in ·2· ·the Albeni Falls Dam.· Just the five years I was there ·3· ·we had a lot of new things they were doing, so there ·4· ·wasn't availability for positions to be applied for. ·5· · · · Q.· · ·Okay.· So when was it that you actually ·6· ·separated from the job?· It was in 2015. ·7· · · · A.· · ·April... ·8· · · · · · · ·I can't tell you the exact date.· It was ·9· ·the same date that I came in. 10· · · · Q.· · ·Oh. 11· · · · A.· · ·It has to be exactly five years at least. 12· · · · Q.· · ·What has to be? 13· · · · A.· · ·Your time in service. 14· · · · Q.· · ·In order... 15· · · · A.· · ·In order to keep your retirement funds 16· ·active and your TSP funds active, so if I ever do go 17· ·back to employment with the government, those things 18· ·are not -- they're not kicked out of the system. 19· · · · Q.· · ·And was it just coincidental that that five 20· ·years came up two weeks or so after -- I mean, right 21· ·after you found out that you did not get the 22· ·maintenance worker -- 23· · · · A.· · ·It was completely coincidental.· They all 24· ·fell on the same time frame. 25· · · · Q.· · ·Okay.· So supporting yourself since that Case 2:16-cv-00075-EJL-REB Document 34-4 Filed 03/01/17 Page 5 of 6 Page 74 ·1· ·time, which has only been about a year it sounds like, ·2· ·a year-and-a-half, at most maybe, you have your ·3· ·pension, am I right, from the Air Force? ·4· · · · A.· · ·Yes. ·5· · · · Q.· · ·And did you take out any retirement or ·6· ·anything from your five years? ·7· · · · A.· · ·Yes. ·8· · · · Q.· · ·Okay.· So what did you decide to do with ·9· ·that?· You took retirement from the government? 10· · · · A.· · ·I took funds from my TSP account because I 11· ·am now jobless.· I was starting my business back up, 12· ·which I never really had closed.· I left it running. 13· ·And so I was going to go four or five months without 14· ·any income, so I had to pull funds from my TSP account 15· ·to get us through. 16· · · · Q.· · ·And is there any other way that you support 17· ·yourself now besides your business, your house building 18· ·business and your Air Force pension? 19· · · · A.· · ·No, those are the only two incomes I have. 20· · · · Q.· · ·Is your house building business doing 21· ·better than it did before you started at Albeni Falls? 22· ·I mean, is the economy better for working with it? 23· · · · A.· · ·Yes. 24· · · · Q.· · ·Have you applied for any other jobs other 25· ·than the one that you told me about earlier since you Page 75 ·1· ·left Albeni Falls? ·2· · · · A.· · ·No. ·3· · · · Q.· · ·Do you intend to apply for any others? ·4· · · · A.· · ·I can't speculate. ·5· · · · Q.· · ·Okay.· Are you looking to get back into ·6· ·work with the federal government? ·7· · · · A.· · ·I can't speculate. ·8· · · · Q.· · ·I'm just thinking, what do you want?· One ·9· ·of the things you asked for is reinstatement.· Is that 10· ·something you still want right now, or was that just 11· ·something that was in your complaint?· That's what I 12· ·want to know.· Right now what do you want? 13· · · · A.· · ·If there was a position adequate to what 14· ·would make up for all of this, then, yes, I would 15· ·reinstate with the Army Corps of Engineers. 16· · · · Q.· · ·And what kind of position, in your mind, 17· ·would make up for all of that? 18· · · · A.· · ·Something close to the painter position 19· ·that I had applied for. 20· · · · Q.· · ·The one that was at Lower Granite Dam? 21· · · · A.· · ·Yes. 22· · · · Q.· · ·And by "close" to that, do you mean in pay? 23· · · · A.· · ·In the level.· It's a TC position under the 24· ·UPTO union. 25· · · · Q.· · ·So the range or the -- the GS level, if it Page 76 ·1· ·were a GS? ·2· · · · A.· · ·Yes, it would be a GS level.· In the Power ·3· ·Trades Organization, they're TC levels.· In the painter ·4· ·position, one of those you don't have to go to a ·5· ·four-year program, experience is the only thing that's ·6· ·required for that position. ·7· · · · Q.· · ·And do you want it to be in the Walla Walla ·8· ·District? ·9· · · · A.· · ·I would want it to be at Albeni Falls Dam. 10· · · · Q.· · ·Oh, okay.· What about a job at that TC 11· ·level at Albeni Falls but that wasn't a painter?· So 12· ·what are the other requirements for what it is you want 13· ·as far as duties, or do you not have any requirements 14· ·for that? 15· · · · A.· · ·Just as long as I'm in that TC level that 16· ·the painter position is at, I wouldn't care what it is, 17· ·if it's mechanical, electrical, an operator. I 18· ·wouldn't care what it was, as long as it was at that 19· ·TC -- I think it was SC.· I can't -- I can only 20· ·speculate.· I can't remember what the level of that job 21· ·position was. 22· · · · Q.· · ·No, that's easily determined.· No problem 23· ·with that. 24· · · · · · · ·And let's say you had that job.· Let's say 25· ·that you had gotten the painter job at the Lower Page 77 ·1· ·Granite Dam at the TC level that it was in 2013, and ·2· ·now it's 2016 and you are now -- ·3· · · · A.· · ·Fifty-three. ·4· · · · Q.· · ·-- 53.· How long, in your mind, would you ·5· ·expect to work? ·6· · · · A.· · ·Till retirement age of 62 to 65. ·7· · · · Q.· · ·What would determine that, in your mind, ·8· ·whether you'd retire at 62 or 65? ·9· · · · A.· · ·Health would be the main factor, and then, 10· ·of course, where I was at with my retirement funds, so 11· ·that I could still sustain life in a meaningful fashion 12· ·with the amount of retirement pay that I would get, 13· ·which would also determine at what point I would 14· ·retire. 15· · · · Q.· · ·Is your wife employed? 16· · · · A.· · ·Yes. 17· · · · Q.· · ·And has she been employed during most of 18· ·your marriage? 19· · · · A.· · ·Yes. 20· · · · Q.· · ·Do you support any of your children still? 21· · · · A.· · ·Yes. 22· · · · Q.· · ·How many? 23· · · · A.· · ·Two. 24· · · · Q.· · ·How old are they? 25· · · · A.· · ·October 18th my son will be 26. 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