Free Reply - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JAMES C. HAIR, JR. AZ Bar No. 6692 Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Jose Castillo, CIV 02-2043-PHX-DKD Plaintiff, v. Gale A. Norton, Secretary, United States Department of the Interior, Defendant. Defendant hereby replies to Plaintiff's Controversion Of Defendant's Statement Of Facts and responds to Plaintiff's Statement Of Facts In Support Of His Cross Motion For Summary Judgment. Reply is made to specific numbered paragraphs of Plaintiff's Controversion, which correspond to the paragraph numbers of Defendant's Statement Of Facts (Def. SOF).1 PLAINTIFF'S CONTROVERSION OF DEFENDANT'S SOF 6. Def. SOF ¶ 6 is fully supported by the portions of the record cited. Furthermore, Castillo admitted that he was promoted from GS-5 to GS-7 to GS-9, but did not remember when those promotions occurred (Exh. 1 pp. 34-36). 8. Def. SOF ¶ 8 accurately summarizes the allegations of discrimination in Castillo's formal complaint of discrimination in FNP-96-064, EEOC 350-97-8168X and is fully supported by the portions of the record cited. Furthermore, the details of plaintiff's complaint of discrimination are set forth in Defendant's Motion For Partial Summary Judgment (Def. MoPSJ) at p.6. DEFENDANT'S REPLY TO PLAINTIFF'S CONTROVERSION OF HER STATEMENT OF FACTS AND RESPONSE TO PLAINTIFF'S STATEMENT OF FACTS

Plaintiff, while admitting or denying a significant number of defendant's statements of fact, labels them "not material." However, as stated in the Advisory Committee Notes on the 27 1972 Proposed Rules Of Evidence, reprinted in 28 U.S.C.A. following Rule Of Evidence 401 (2001): "Evidence which is essentially background in nature can scarcely be said to involve 28 disputed matter, yet it is universally offered and admitted as an aid to understanding."
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Case 2:02-cv-02043-DKD

Document 69

Filed 11/21/2005

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9-19. Notably, plaintiff does not deny Def. SOF ¶¶ 9-19. Furthermore, these statements of fact support the proposition, argued in Def. MoPSJ at pp. 6-7, that "[a]ll of the claims asserted and resolved in Castillo's first NPS/EEOC case of discrimination should be dismissed for failure to state a claim upon which relief can be granted because the evidence indisputably demonstrates that he has received all the relief to which he is entitled." 20. While admitting Def. SOF ¶ 20, plaintiff asserts that: "Defendant on their [sic] facts admit that Plaintiff was not satisfied with the results of the decision of the Office of Federal Operations." It is so stated as fact in Def. SOF ¶ 20. 21. Def. SOF ¶ 21 is fully supported by the portions of the record cited. Furthermore, the details of plaintiff's complaint of discrimination are set forth in Def. MoPSJ at pp. 7-8. The complaint of discrimination described in Def. Exh. ¶ 21 is Exh. 18, to which citation is made. 23. Def. SOF ¶ 23 is fully supported by the portions of the record cited and, contrary to plaintiff's assertion, is intended only to, and does, summarize what is stated in the April 21, 1998 Agency Decision. 24. Def. SOF ¶ 24 is, as plaintiff concedes, based on the Agency Decision sent to Castillo (Exh. 21) and is most certainly admissible under Fed.R.Evid. 803(6) (record of regularly conducted activity) and (8) (public record or report), 807 (residual exception), and 901(7) (authentication requirement satisfied because it is a public record or document). Notably, plaintiff offers no basis in the Rules of Evidence on which Exhibit 21 may be excluded.2 25. Def. SOF ¶ 25 is fully supported by the portions of the record cited. Furthermore, plaintiff's objection is refuted by the Report of Investigation (Exh. 26), which states that the investigation was conducted from April 29 to August 15, 1998 and the report of investigation was issued August 15, 1998. 35. Def. SOF ¶ 35 is fully supported by the portions of the record cited. Furthermore, the details of plaintiff's complaint of discrimination are set forth in Def. MoPSJ at pp. 9-10. 38. Def. SOF ¶ 38 is fully supported by the portions of the record cited. This omission clearly shows that plaintiff's denial of Def. SOF ¶ 24 and assertion that it is not based on any admissible evidence, and others like it, are patently without merit.
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39. Def. SOF ¶ 39 is fully supported by the portions of the record cited. 41. Def. SOF ¶ 41 is fully supported by the portions of the record cited. Furthermore, the details of plaintiff's complaint of discrimination are set forth in Def. MoPSJ at pp. 10-11. 45-46. Def. SOF ¶¶ 45-46 are fully supported by the portions of the record cited. 47. Def. SOF ¶ 47 is fully supported by the portions of the record cited. Furthermore, the details of plaintiff's complaint of discrimination are set forth in Def. MoPSJ at pp. 12-14. 48. Def. SOF ¶ 48 is fully supported by the portions of the record cited. 49. Def. SOF ¶ 49 is fully supported by the portions of the record cited. 51. Def. SOF ¶ 51 is fully supported by the portions of the record cited. Furthermore, the details of plaintiff's complaint of discrimination are set forth in Def. MoPSJ at pp. 12-14. 59. Def. SOF ¶ 59 is fully supported by the portions of the record cited. Page 253 of Exhibit 84 gave Castillo the opportunity to reject the Informal Resolution Agreement. He instead accepted it and signed the acceptance, page 254. 65. Def. SOF ¶ 65 is fully supported by the portions of the record cited. Furthermore, the details of plaintiff's complaint of discrimination are set forth in Def. MoPSJ at pp. 15-16. 67. Def. SOF ¶ 67 accurately summarizes, and is fully supported by, the portions of the record cited, Exhibits 94-95. Notably, plaintiff fails to point to any specifics omitted by defendant in summarizing these exhibits. 69. Def. SOF ¶ 65 is fully supported by the portions of the record cited. The decisions from which Castillo could appeal were rendered July 12 and 30, 2001 (see Exhs. 94 and 95). Thus, the dates of the decisions listed in Castillo's notice of appeal (Exh. 97), from which he appealed, are incorrect. 75. Def. SOF ¶ 75 is fully supported by the record cited. 77. Def. SOF ¶ 77 is fully supported by the portions of the record cited. Furthermore, the date Castillo received the July 12, 2002 EEOC OFO decision mailed to him that date is not stated in ¶ 77. 78. That Def. SOF ¶ 78 is accurate is demonstrated not only by Exhibit 107, but also by Exhibits 7-106 and the Complaint. Furthermore, Exhibit 107 is admissible for the reasons stated
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in ¶ 24 above. Notably, plaintiff again offers no basis in the Rules of Evidence on which Exhibit 107 may be excluded. PLAINTIFF'S UNDISPUTED FACTS 1-4. Plaintiff's statements pertain to claim 7 of his Third NPS/EEOC case of discrimination, which is addressed in Def. SOF ¶¶ 35-38 and Def. MoPSJ pp. 9-10. The complaint of discrimination is Exh. 35, not Exh. 38. Respectfully submitted this 21st day of November, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/James C. Hair, Jr. JAMES C. HAIR, JR. Assistant U.S. Attorney Attorneys for Defendant

CERTIFICATE OF SERVICE I hereby certify that, on November 21, 2005, I electronically transmitted this document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice Of Electronic Filing to the CM/ECF registrant listed below and had a paper copy delivered to the Clerk's Office for delivery to Judge Duncan's chambers. Cheri L. McCracken 2402 North 24th Street Phoenix, Arizona 85008-1804 Attorney for Plaintiff s/James C. Hair, Jr.

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