Free Statement - District Court of Arizona - Arizona

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CHERI L. McCRACKEN

Cheri L. McCracken, Esq.
State Bar # 006111 2402 North 24th Street Phoenix AZ 85008-1804 (602) 231-0595 Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) Plaintiff, ) ) v. ) Gale A. Norton, Secretary, United States ) ) Department of the Interior, ) ) Defendant. ) ) Jose Castillo, No. CIV'02 2043 PHX ROS PLAINTIFF'S CONTROVERSION OF DEFENDANT'S STATEMENT OF FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT and PLAINTIFF'S STATEMENT OF FACTS IN SUPPORT OF HIS CROSS MOTION FOR SUMMARY JUDGMENT

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2402 NORTH 24TH STREET PHOENIX, AZ 85008-1804 (602) 231-0595 (PHONE) (602) 231-0841 (FAX)

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COMES NOW the undersigned attorney for Plaintiff Jose Castillo ("Castillo"), and submits Plaintiffs Statements of Facts in Controversion of Defendant's Statement of Facts in Support of Defendant's Motion for Partial Summary Judgment. Plaintiff admits facts solely for the purpose of this motion. Plaintiff notes that many of the "facts" are Dependant's summaries of documents which should speak for themselves. Also the recitation of the text maybe correct but not the fact asserted therein. ¶1. Admitted ¶2. Admitted not material ¶3. Admitted not material ¶4. Admitted not material ¶5. Admitted not material ¶6. Denied, it is unclear how the promotions came about and when and therefore is denied.
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¶7. Admitted not material ¶8. Denying. This is denied because of the characterizations found within it. It is admitted that Plaintiff filed a formal complaint all in May 3, 1996.Exhibit 7 speaks for itself. ¶9, ¶10, ¶11, ¶12, ¶13, ¶14, ¶15, ¶16, ¶17, ¶18, and ¶19 are not material. ¶20. Admitted, in the Exhibit 16 page 6 Plaintiff specifically states... "I do not agree with the resolution of this discrimination claim. I assert that the year is all the way back to 1993 should have been considered in this total and I should receive back play pay plus interest for all the years I was prevented from participating in fire duty assignments regardless of whether or not other coworkers decided to accept assignments." Defendant on their own facts admit that Plaintiff was not satisfied with the results or decision of the Office of Federal Operations. ¶21. Denied, Plaintiff alleged ongoing discrimination for several years. He alleged that he was treated with disrespect by his peers and seasonal employees. That his supervisors allowed this disrespect. He alleged that a photograph of himself was defaced in a derogatory manner. He alleged that because of the hostile atmosphere that he should not be rated on teamwork. He alleged retaliation as receiving a letter of reprimand for writing a memo to the chief ranger saying that many of the people hired were racists. He was denied in annual leave he was denied supervisor training despite being designated as an acting supervisor from time to time. Exhibit 17 years in the report of counseling at the informal stage. Neither it nor Exhibit 26 relied on by the Defendant is the formal complaint. ¶22. Admitted not material ¶23. Denied, this fact is put for to prove the truth of the matters recited not the fact that the conclusions were made by the Agency. Plaintiff submits it continues to cement a continuing pattern and practice of discrimination going back to before his first formal complaint. The continuous nature of the hostile atmosphere and work
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environment is shown repeatedly in the complaints. ¶24. Denied, Statement 24 is not based on any admissible evidence. Exhibit 21 is the letter from the Agency. ¶25. Denied, Defendant Exhibit 22 and Exhibitts 26 state that this was a time as the investigation however it cannot be because August 15, 1998 was the date the investigation was submitted according to Defendant's Exhibit 26. material. ¶26. Admitted not material ¶27 Admitted not material ¶28. Admitted not material ¶29. Admitted not material ¶30. Admitted not material ¶31, ¶32, ¶33, and ¶34, are admitted not material ¶35. Denied as mischaracterized, Plaintiff alleged that he had been discriminated and retaliated against by the allowance of disrespect by seasonal employees with a specific incident, by not being allowed to take his requested annual leave, by having a performance appraisal imposed without having reasonable input, by a second reprimand for a failure to follow instructions. He is disciplined and This is not

suspension entered the change in policy his refusal to listen to. Plaintiff's view of what was going forward in the reprimand that others similarly situated were allowed to use tape recorders, for being chastised about being late meetings when he wasn't and the continuing hostile work environment the removal of his supervisory duties and directions that he could not supervise seasonal help, orders to work and put together a display case which were suddenly withdrawn and changed but never used. ¶36. Admitted but not material, Plaintiff has a continuing ongoing complaint of a hostile work environment the fact is proven by these claims over and over again. The Agency consistently refused to investigate or acknowledge a continuing pattern
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and practice of discrimination and retaliation. ¶37. Admitted not material ¶38. Denied, not material ¶39. Denied not material ¶40. Admitted not material ¶41. Denied as not characterized properly. ¶42. Admitted not material ¶43. Admitted not material ¶44. Admitted not material ¶45, ¶46 Denied as not material ¶47. Denied as not characterized properly ¶48. Denied as not properly characterized ¶49. Denied as not properly characterized ¶50. Admitted not material ¶51. Denied as not properly characterized ¶52. Admitted not material ¶53. Admitted not material, once again Defendant show the continuing ongoing nature of the discrimination and their refusal to investigate it as a continuing pattern and practice. ¶54. Admitted not material ¶55. Admitted to not material ¶56. Admitted not material ¶57. Admitted, not material. It does show the continuing nature the continuing good faith and persistence of the Plaintiff in attempting to get his discrimination and retaliation concerns addressed. ¶58. Admitted not material, the administrative process ceased to go forward because of the filing of the civil lawsuit. The administrative remedies have been exhausted.
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¶59.

Denied. Defendant's Exhibit 84 is a compilation documents without

authentication. The last page which purports to be the signature page is a faxed copy. Page numbered 253 although unsigned appears to be the exact opposite of what the Agency alleges. Plaintiff later asserts this "agreement" has been breached. ¶60, ¶61, ¶62, ¶63, and ¶64, are admitted for purposes of this motion but are not material. ¶65. Denied. Not characterized properly ¶66. Admitted to not material ¶67. Denied. Exhibits 94 through 95 speak for themselves and these documents must be read as they are very complicated and refer to many things. They cannot be correctly characterized in the shorthand that Defendant has used. ¶68. Admitted not material ¶69. Denied. Plaintiff appealed decisions on July 23, 2001 and August 6, 2001. In the Defendant's Exhibit 97 he not only appeals the refusal to accept certain allegations but if what he characterizes as the minimization or ignoring completely others. ¶70. Admitted not material ¶71. Admitted not material ¶72 Admitted to not material not relevant ¶73.Admitted not material ¶74. Admit it not material ¶75. Denied to the extent that it is meant to provide evidence of the truth of the facts asserted. ¶76. Admitted ¶77. Denied. There is a new way to ascertain on what date the document was sent to the Plaintiff as it is not the Postal Service cancellation but instead is a stamp by a postage meter of the EEOC. Plaintiff received this decision July 21, 2002. ¶78. Is neither admitted nor denied, the evidence submitted to the Exhibit 107 is
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not admissible, is speculative on its face by its own admission, and the Plaintiff has laid out in his Complaint those complaints that he is claiming in this matter. PLAINTIFF'S UNDISPUTED FACTS 1. Plaintiff filed an EEO Complaint naming Sandell and Superintendent Henderson. (Defendant's Exhibit 38, Bates 108101-102). 2. Plaintiff wrote to Sandell telling him some of the people he hired were racist. (Defendant's Exhibit 38). 3. Sandell reprimanded Plaintiff for false and malicious statements (Defendant's Exhibit 38, Bates 108137-138). 4. Superintendent Henderson upheld the reprimand. (Defendant's Exhibit 38, Bates 108101-102). RESPECTFULLY SUBMITTED this 31st day of October, 2005.

Cheri L. McCracken, Esq.

s/ Cheri L. McCracken Cheri L. McCracken 2402 N. 24th Street Phoenix AZ 85008-1804 Attorney for Plaintiff Electronically filed this 31st day of October, 2005 and a courtesy copy sent to: HONORABLE ROSLYN O. SILVER United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, AZ 85003-2158 s/ Fran Townsend

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Document 64

Filed 10/31/2005

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