CLOSING ARGUMENT POINTS

Document Sample
CLOSING ARGUMENT POINTS Powered By Docstoc
					                  PLAINTIFF’S CLOSING ARGUMENT POINTS

Kan claims discrimination based on her race (Asian), national origin (Thai), and color
(yellow) and retaliation

Burden of proof in discrimination case
       Prima facie case
       Protected class
       Adverse employment action
       Treatment differently than others similarly situated
Mackey v. Childrens’ Med. Ctr. of Dallas, 2006 U.S. Dist. LEXIS 68277; 99 Fair Empl.
Prac. Cas. (BNA) 70; 18 Am. Disabilities Cas. (BNA) 1016 (N.D. Tex., Sept. 22, 2006)
(Lindsey, J.)

       Defendant has to articulate legitimate non-discriminatory reason (performance not
adequate)

       Burden (by preponderance of the evidence) shifts back to show reason is
pretextual, by showing that the articulated reason is not the real reason for the decision,
and that improper motives were actual motivation for the action. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).

       This can be accomplished by persuading the trier of fact that a discriminatory
reason more likely motivated the employer, or by showing that the employer’s proffered
explanation is unworthy of credence. U.S.P.S. Bd. Gov. v. Aikens, 460 U.S. 711, 716
(1983); Reeves.

1.     Failure to promote claim:

       Evidence shows Kan agreed to become LAN at FAA with permanent position at
       GS-11

       Kan was experienced as LAN prior to joining the FAA-PX 4, PX 89 (Corp Eng.
       Perf. Ratings)

       Brought in as GS-9; Brownfield told her would be promoted to permanent GS-11

       In 1999, she receives staff employee of year for 1998, and this with less than 5
       months work for 1998 PX 6; Stuckey gives her letter of commendation in Apr.
       1999 for work on Y2k, PX 7,8

       Document submitted by Agency in EEO shows that made mistake, non-
       competitive instead of competitive—PX 57 (Perez email to Lindley); yet nothing
       is done to correct situation

       Requires Kan to competitively bid to get to GS-11—PX 19, 3rd page



CLOSING NOTES                            PAGE 1
      Kan only Asian LAN in SW Region--PX 151

      Kan only LAN below GS-11 in region—PX 151; PX 45 (Kan EEO aff); PX 40
      (O’Neal aff, pg. 3 of 8)

      White males brought in after Kan at GS-11 in region—PX 36, 37

      Peters gives her temporary promotion at GS-11 with Kan bidding –PX-17
      (increase from $43,776 to 47,085—PX 18, 19)

      Kan one of five finalists, but temp promotion allowed to expire

      Peters leaves, replaced by Dalbey

      Turmoil in office—PX 12 (Aviation Week newsletter); not a Model Work
      Environment (PX 16)

             Turf war between Kan & certain inspectors, Hoover, Raymond, Carlson
      over control of automation—Bland EEO Aff (PX 44); O’Neal Aff (PX40)

             Special Emphasis Review (PX 10) shows deterioration in office due to
      confusion over LAN’s role which needs to be defined by office manager, and role
      of automation committee. Report indicates that system management remains
      primary responsibility of LAN with Automation Committee in support role

              Carlson made racial remarks to Kan and to other inspectors (prostitute, no
      security clearance for Asians) –Kan, Bland testimony

            Kan files grievance over Culwell incident, which is denied by manager
      Brownfield after Kerwin does edit (PX 9)

            Inspectors (Bland, Webb, Estrada) complain to management about racial
      remarks (chink, chop suey)—nothing done to correct.

             Carlson, Hoover, Raymond re-form automation committee while Kan on
      vacation in November of 1999

             Kan protests to manager (Brownfield) PX 40-Oneal Aff; not supported by
      subsequent managers: Kerwin (acting manager), Peters, Dalbey or Mills—all
      white males

             Dalbey as new manager, agrees to security inspection by Dana Taylor,
      regional computer specialist (white female) PX 20




CLOSING NOTES                             PAGE 2
              Dalbey requires Kan to continue doing daily log (PX 31), initiated by
      Peters; only person required to do so

            Dana Taylor isn’t part of computer security at the FSDO; Kan is ISSO.
            PX 23 (training list); PX 27 (Taylor recommendation to make LANs
      ISSOs); PX 14, p.9 §9; PX 82 (D-FSDO ISS Order)

              Prior to inspection, Kan discovers backups not working properly; gets
      batch file fix through FAST in Oklahoma City (PX 35, 3rd pg.); Taylor learns of
      batch file problem in OKC, and returns to FSDO to do nothing else but check
      back up tapes (Taylor had all ready completed initial inspection). Inspection
      originates at Regional Office in a meeting with Kerwin, Dalbey and Taylor.
      Kerwin manages AEG at this time, and has nothing to do with HR (verified by
      email trail, Kan’s statements and Dalbey’s statements in tape recorded meetings).

             Taylor is critical of Kan in report for backups not being done and properly
      secured, although Taylor knows that Kan has all ready repaired the problem. PX
      20

             Dalbey accepts Taylor’s criticism at face value over Kan (white v. Asian);
      PX 24 (Dalbey note 9/01)

               old Automation committee members critical of Kan.

               Dalbey critical of extra time spent by Kan-set up by Glenn Wall; PX 32

              Dalbey accepts their criticism (white) over Kan (Asian); PX 24 (Dalbey
      note 9/01); Dalbey tapes PX 29, 30

              Combined criticism of Taylor & inspectors is basis for Dalbey’s decision
      not to promote Kan. (Dalbey’s in court testimony)

               Evidence that whites favored over Asian; rebuts Defendant’s performance
      reason

              Kan suffers damage ($13,236) based on differential ($3309 X 4) between
      GS-9 ($43,776) vs. GS-11 ($47085) from Oct. 01 forward to September 05 when
      she is terminated by Agency; PX 25, 26

      Defendant claims Kan failed to timely contact EEO counselor on failure to
      promote claim within 45 days

      Evidence shows she wasn’t aware she was no longer at grade 11 until late Nov.,
      early Dec. 01, upon return from vacation, when finds SF-50 in inbox that she has
      reverted back to GS-9, PX 25




CLOSING NOTES                           PAGE 3
      Dalbey testified Kan didn’t know not being promoted until his meeting with her
      0n Dec. 3rd, 2001; PX 28 (Kan note of meeting with Dalbey on Dec. 3rd)

      Kan sees EEO counselor on Dec. 19th, 2001 (PX 67-EEO ROI), within 45 day
      period

      EEO contacted for informal process last week of December, which is within
      required 45 day period

      Formal EEO filed Feb., 2002 (PX 34)

2.    Melissa Kerwin (first incident); confiscation of computers, security
      investigation and placement on administrative leave AND Hoover (second
      incident) alleging confrontation with GS

      The anti-retaliation clause in § 704 of Title VII forbids employer from
      discriminating against employee because that individual opposed any practice
      made unlawful from Title VII, or made a charge, etc. in a Title VII proceeding or
      investigation. The clause is not limited to activity occurring only in the
      workplace, or to punishment affecting a term or condition of employment.
      Burlington N & Santa Fe Rlwy Co. v. White, ___ U.S. ___, 126 S.Ct. 2405, 165
      L.Ed.2d 345 (2006) The Supreme Court in Burlington upheld a jury verdict that a
      suspension with backpay and the changing of job responsibilities were actionable
      retaliatory acts for which liability and compensatory and punitive damages could
      be imposed.

      Kan is punished for reporting Melissa violating FAA policy and making
      statements about President Bush dying slow horrible death (PX 62, MK Aff.; PX
      39)

      Kan learns of improper internet activity by Melissa while attempting to upgrade
      her computer

      Kan does upgrade after hours due to Melissa’s refusal to allow her access during
      day

      Melissa’s computer still not working properly after upgrade

      Kan copies URLs and takes home to investigate

             Whether she copied on paper or on disk is distinction without substance,
      as none of information is confidential FAA information (Schaffer testified he was
      handed paper, but not clear how he was able to check entire research file).

      Kan believes she has authority to investigate computer misuse as ISSO, and
      because interfering with office automation



CLOSING NOTES                          PAGE 4
      Kan discovers entries on livejournal.com (PX 39), Requests husband and EEO
      rep, Garry Schaffer, to contact Peter Kerwin, man to man, to avoid having full
      scale investigation launched (PX 140)

      Kan also leaves message for Mills

      GS emails Kerwin, who passes on to Ron Nelson and ―recuses‖ he & Lindley
      from further involvement (PX 61, Kerwin aff.)

      Nelson contacts security to start investigating Kan and Melissa.

      GS emails Mills about MK (forwards copy of email sent to Kerwin) PX 49

      Evidence shows that neither Kerwin nor Lindley are truly recused—3/31/03
      meeting about GS & Kan; Kerwin denies attending meeting; Lindley can’t
      remember meeting even though she initiated it

            PX 52-Mills 3/31 email to Lindley
            PX 53-Lindley 3/31 email to Kerwin, et al about scheduled meeting on
      Kan & GS
            PX 54-Lindley forwards Mills email (PX 52) to Nelson, cc to Kerwin


      FAA Security investigation launched; Mills knows 1 hour in advance that they are
      going to seize both Melissa’s and Kan’s computers, but says nothing to Kan

      Note: Kan’s computer could have been investigated remotely by this
      time, confiscation not required to examine computer.
      Eric Barnett works for Kerwin in Rotocraft Division; seizes Kan’s computers; N.
      Colon file accessed PX 47

      Note: seizure of Kan’s computers is subterfuge-Computers are not imaged by
      security until July 03 after Kan put on admin leave (this during a 2nd confiscation
      by the agency) (PX 77)

      Seizure also discriminatory- white female who reports former receptionist does
      not have her computers seized as part of investigation (Sasser aff., PX 85)

      Seizure of computers is emotionally distressing to Kan and prevents her from
      being able to do work (PX 48)

            She takes week off to go to doctor (Primacare) who gives her anti-anxiety
      medication (PX 48)



CLOSING NOTES                           PAGE 5
             She is fearful that Security will come to her home

             GS testifies she is not sleeping, having nightmares, looking out window

      New EEO filed over seizure of computers and aftermath (PX 63)

      Mills send Nelson email about computer deployment (PX 59)

      Kan returns to work, asks for assistance in completing May 1st deployment,
      receives none, but completes anyway

      Kan discovers that Hoover & Raymond giving themselves back door privileges
      again (PX 65-Raymond; PX 66-Hoover & Raymond)

      Changes security settings per her job authority and reports to Mills (Note: Mills
      acknowledges in ROI that he hasn’t discussed Kan’s authority before she is put on
      admin leave-PX 62, Mills aff.)

      Mills accepts word of white inspectors (Hoover & Raymond) over Kan (Asian)

               Mills later bases 10-day suspension (earlier, termination) in part on Kan’s
      failure to bring to his attention before changing settings-PX 103

              Yet, no directive by Mills or predecessors that Kan doesn’t have authority
      to do so.

      Next day, Kan is placed on administrative leave based on reported incident
      between Hoover & GS in FAA parking lot (PX 70; PX 71-Mills statement)

      Mills tells Bland & Webb that he hopes Kan never returns to FSDO (PX 75-Webb
      statement)

             Credibility assessment required as to whether incident occurred

      Even if it did, Kan is being targeted based on something she didn’t do

              Hoover denies that he told Bland, Webb and others in the office that
      either Kan goes or he goes

             Word of white male (Hoover) taken and Asian is punished for something
      she had nothing to do with

             Hoover and Mills both admit no physical violence occurs or threatened

             Prior VIW meeting concludes no basis to support imminent threat of harm
      by reason of GS’ emails to Smith with religious overtones


CLOSING NOTES                           PAGE 6
      Mills informs FSDO employees of incident between GS & Hoover –puts Kan in
      bad light with ―violent‖ husband (PX 74)

            While Kan placed on leave, Mills places FBI 10 most wanted picture
      of GS in front reception area which can be viewed by visitors (PX 143)
             Placement of picture protested by inspectors and PASS rep (Webb) yet
      photo remains there for months. (Posting of GS picture in violation of
      order given by Max Payne- PX 78)

             Armed Security guards hired to protect employees during period of Kan’s
      leave (cost over $60,000 per PDT)

      EEO Counseling Report 6/30/03 (PX 76)

      EEO Complaint filed (PX 86); ROI (PX 87)

      Kan off work for over 7 months until she tries to return in Feb. 04, where she is
      told by Mills of return to work conditions; sets her back and she goes out on sick
      leave for another six weeks (PX 88-GS letter to Gilbert Salazar, OIG)

      FSDO Contact Roster shows Darren Idlett as LAN (PX 105)

      While investigation is ongoing, Becky Lindley reads EEO and learns of secret
      taping of Dalbey by Kan in Dec. meetings regarding promotion and evaluation;
      causes 2nd security investigation to be launched vs. Kan (PX 81-Security ROI)

      Security investigations result in 2 brutal interrogations of Kan by agent LaFlair

      Webb testifies that LaFlair gruff in preliminary interview of Kan following
      seizure of computers; corroborates Kan & Garry’s version of what happened
      during interviews. Frank Gentile in affidavit states LaFlair did not allow
      Kan to eat until after two o’clock. States he felt interview was illegal
      (Bivens submissions)
      2nd one is protested by attending PASS rep, Frank Gentile; acknowledged by
      LaFlair in his report

      Kan files whistleblower complaint in 9/03 (PX 80) over interrogations

      FAA takes no disciplinary or corrective action vs. MK (white female), instead
      determines that temporary position no longer needed, allowed to expire, and MK
      terminated from service on position availability only (clean record allows rehire)
      (PX 83, Nelson aff.; Mills aff.-temporary services no longer needed)


CLOSING NOTES                           PAGE 7
      Note: MK’s direct supervisor, Bill Smith, tells investigator he would take
      immediate corrective action (PX 62, Smith aff.)

      Kan suffers severe emotional trauma, resulting in hair loss, diarrhea, etc., as result
      of security investigations

      Kan diagnosed by Dr. Martin with PTSD after 1st LaFlair
      interrogation (PX 156)
      Dr. Martin diagnoses anxiety and depression, and puts her on anxiety and
      depression medication (PX 156)

      Kan not able to work

      While Kan doesn’t lose pay on admin leave, she incurs medical expense as well
      as damages for emotional trauma & embarrassment at being singled out to office
      as having violent husband.

      Agency says Kan violates her role as LAN by acting as computer police and
      brought this on herself

      Yet evidence shows that Mills acknowledges to security that he never informed
      Kan she didn’t have authority as LAN to do what she did (Mills aff. in security
      ROI-PX 62; see also LaFlair summary)

      Further, disparate treatment of Kan vs. white female (MK); Asian is punished for
      white female’s undisputed misconduct

      Inference can be drawn that placement on leave is in retaliation for reporting MK
      to PK, especially since PK & Lindley remain involved to some extent in
      disciplinary actions vs. Kan (Steve, there was a ruling by the US SC one or
      two years ago holding that a change of job duty is an adverse employment
      action-retaliation).

3.    Retaliation by Return to Work Conditions and 10-day Suspension w/o Pay

      Agency argues that this are not properly before the Court since they occurred after
      EEO on Melissa incident concluded in Jan. 04. However, a Title VII cause of
      action may be based on any kind of discrimination like or related to the charge’s
      allegations, limited only by the scope of the EEOC investigation that could
      reasonably be expected to grow out of the initial charges of discrimination. Fine
      v. GAF Chem. Corp., 995 F.2d 576 (5th Cir. 1993). The prior charge involves
      discriminatory and retaliatory conduct, which is the same conduct at issue in Mills
      return to work conditions. Indeed, the 10-day suspension grows out in part from



CLOSING NOTES                            PAGE 8
      the Melissa Kerwin incident (as well as the taping of Dalbey). These charges
      certainly meet the test recognized in Fine, and are properly before the Court.

      Mills imposes return to work conditions on Kan when she attempts to return in
      Feb. 04 (PX 88-GS letter to Salazar). Kan shocked and surprised.

      Result is that Kan goes out again on medical leave; more hair loss, diarrhea, etc.

      GS emails Mills about RTW conditions before Kan returns from sick leave (PX
      90) (Asks that Kan be treated as he would want his wife to be treated)

      Kan returns on April 1, 2004. Mills 1st asks if she has found another job yet

      RTW Conditions then read out loud; very demeaning to Kan

      Kan forced to sign or be terminated (PX 91)

      Mills writes her up immediately for violating RTW conditions (PX 92)

      Bogus incident with Idlett; Webb sees no problems between he & Kan that day
      (PX 94-Webb statement; PX 106, Idlett aff., shows Mills had him rewrite
      statement to be stronger, which he was uncomfortable with)

      Mills Critical of Kan asking AO, Annette Williams, about status of ID and access
      to system

             Reasonable requests on their face

      Mills requests assistance to evaluate Kan (PX 93)

             Makes three separate requests (PX 99, 111, 112)

      Love-in meeting held in Apr. 04 (PX 96, 97)

      Mills is vilified as worst FSDO manager by everyone at meeting

      Lack of integrity, trust, intimidating and retaliatory conduct towards those filing
      complaints or grievances

      Webb testifies Mills threatened him if he continued as PASS rep; causes him to
      leave FSDO

      Public reprisal by Agency against those participating in the EEO process certainly
      had a cold and chilling effect on employees who might otherwise want to exercise
      their rights to seek redress through same.




CLOSING NOTES                           PAGE 9
      Hoover is team leader who also speaks out about Mills; shortly thereafter
      transferred out of office (Bland testimony)

      Mills refers to persons complaining as contentious malcontents, then can only
      remember one, Oscar Thomas, who filed retaliation complaint vs. him for
      imposing 3-day suspension

      Mills doesn’t take results well; environment becomes worse; not a Model
      Environment per FAA policy (FSDO never has been according to Bland, Webb,
      Estrada)

      Immediately after offsite meeting, Mills proposes 10-day suspension vs. Kan for
      conduct occurring nearly a year before (PX 98)

      Also after Love in, 2 subsequent all hands meetings at FSDO.
      Lindley tells Bland that a Bivens action is only way to deal with bad
      managers

             Problems worsen after meetings.

      Kan, through her EEO rep GS, sends copies of reply to the proposed
      suspension to multiple official agency heads, including Tom Stuckey.
      GS received letter from DC that Stuckey ordered to contact him to
      work things out. No contact from Stuckey. (PX 100, 101)

      Bivens action filed later to try and stop abuse and harassment.
      Clearly part of retaliatory conduct by Mills to force Kan to leave or set her up for
      removal

      Kan receives suspension for exercise of her authority and for documenting record
      of conversation with Dalbey and submitting it in her pending EEO for failure to
      promote (PX 103)

      EEO filed for RTW conditions and amended to include 10-day suspension (PX
      102, 104; ROI-PX 106)

      Disparate treatment of Kan; Hoover is not disciplined at all for fraudulent
      certificate of Dalfort to maintain GS-14 level.

            PX 22 shows Dalfort certificate to be deleted in 7/01; see also, PX 113,
      114 & PX 115-letter to agent Lueken of FBI)




CLOSING NOTES                           PAGE 10
           In MSPB Stay request, Agency states there is no evidence that
      Hoover committed any misconduct.
4.    Removal for Misuse of Position based on copying and submission of PTD

      While performing upgrade in Aug. 04, Kan discovers PTD (PX 84), in which
      Mills & Lindley propose to remove her from service for conduct she has received
      10-day suspension for

      Kan copies it as RECORD of management’s retaliatory intent, and submits it as
      evidence in pending EEO challenging suspension, and in federal court on Bivens
      action

      Mills replaced by Gonzalez in Nov. 04

      Lindley becomes aware as a result of her review of court filings in February
      ’05 (Bivens submissions first, then EEO court three weeks later) PX
      118 (EEO prehearing submission)

      Kan & Gonzalez have good working relationship; office environment improved
      post-Mills. Kan starts monthly office parties.

      Kerwin & Lindley approach Gonzalez about removing Kan for misuse of position
      for copying and submitting PTD. (Gonzalez testimony)

      After consensus reached between three of them, Gonzalez issues notice of
      removal vs. Kan, (PX 119) (Contents of letter containing damaging contents
      renders Kan unable to work at that time) Dr. Martin Testimony

      Contrary to his statements, Kerwin very much involved in decision to remove
      Kan—inference of retaliatory intent vs. legitimate reason to remove (Gonzalez
      has good working relationship with Kan)

      Kan is removed from service in Sept. 05 for misuse of position (PX 120). Kan
      further damaged by statements in removal letter, especially ―No
      chance of rehabilitation‖.

      Removal letter is devastating on Kan’s mental health; diagnosed with
      PTSD and unable to work for two years since proposed removal (PX
      156; Dr. Martin testimony).
      Prognosis is that she will still require treatment before ready to return to work
      (Dr. Martin testimony)




CLOSING NOTES                         PAGE 11
        Dr. Martin medical expenses-$2,445 (Dr. Martin testimony)

        Two years of lost income at 69k per year (PX 154-2003 wage statement)

        Kan begins informal EEO process to challenge Removal (retaliation
        for EEO participation), and for disparate treatment (Asians disciplined
        but not whites).

        Kan initiates whistleblower with OSC to try and maintain her income.

        Kay Davis, FAA Office of Civil Rights, suggests that Kan should go
        with a mixed case complaint through MSPB (PX 122)
        Agency opposes request for stay-claim of reprisal not protected activity under
        Whistleblower Act (PX 123, pg. 6) (Agency states removal is violation of 5CFR
        2302 (b) 9, not (b) 8.)

        Stay is denied (PX 124)

        Discrimination claim is not considered by AJ. AJ also removes the ―not
        according to law‖ claim, where Gonzales recommends removal, and
        Steve Douglas is the deciding official. (PX 127, p.3, ¶ 3-last
        sentence)
        Removal claim is settled after AJ makes it clear she will rule against Kan on
        misconduct (PX 128)

        EEO on 10-day suspension is dismissed per suggestion of ALJ to consolidate with
        pending federal court action

        Unable to consolidate due to pending 5th Circuit appeal and stay pending appeal

        EEO claim refiled within 90 days of remand of case from 5th Circuit after Bivens
        appeal

        Attempt to overturn settlement agreement fails at MSPB & Federal Circuit.
        Discrimination claim waived because not considered as one of the issues for
        determination by AJ in prehearing conference prior to settlement agreement being
        reached. Therefore, nothing left to waive. PX 130, 134

GS testifies to:

        LaFlair notes concerning criminal history not true




CLOSING NOTES                            PAGE 12
       Offered to take polygraph test, and pay for Hoover’s

       Concerning agency offer to settle, GS expected counter offer due to his years of
       business experience. Every division in the FAA broken down to LOB (line of
       business).

       GS states importance of Asian sensitivity training. Bland suggests this also in
       affidavit from1st EEO ROI.


In closing, if the agency was willing to accommodate Kan’s heritage, there would have
been no need for these court proceedings.

Kan requests judgment vs. Agency for:

       $13,236.00, representing wage differential between GS-9 & GS-11 for 4 years

       $138,000.00 for two years of lost income

       $2455.00 in medical expenses to Dr. Martin

       $_____ for mental anguish, emotional distress and physical/mental impairment
       (Suggest should be at least equal to economic damages of $153,691.00)

       Reinstatement upon certification that fit to return to work

       Attorneys’ fees and expenses

Any other remedies to which this court feels Kan should be entitled to receive




CLOSING NOTES                            PAGE 13

				
DOCUMENT INFO