Rexroat v. Arizona Department of Education et al

Filing 108

*ORDER denying Plaintiff's 89 Motion to Disqualify Counsel due to Suborning Perjury of a Witness. FURTHER ORDERED denying Plaintiff's 94 Motion to Strike Materially False Declarations of Janet Brite and Debbie Jackson and to Hold Janet Brite, Debbie Jackson and Attorney Balcazo in Contempt of Court. Signed by Senior Judge Paul G Rosenblatt on 11/26/2012.(LFIG) *Modified document type to opinion on 11/27/2012 (SSU).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tracy Rexroat,

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Plaintiff,
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v.
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Arizona Department of Education, et al., )
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Defendants.

CIV. 11-1028-PHX-PGR
ORDER

Before the Court are Plaintiff’s Motion to Disqualify Counsel Due to Suborning
Perjury of a Witness (Doc. 89) and Motion to Strike Materially False Declarations of Janet
Brite and Debbie Jackson and to Hold Janet Brite, Debbie Jackson and Attorney Bacalzo in
Contempt of Court (Doc. 94). The motions are denied for the reasons set forth below.
Plaintiff works as an Education Program Specialist, with the working title “State
Supervisor,” in the Career Pathways Unit of the Arizona Department of Education (“ADE”).
On May 24, 2011, she filed a complaint alleging gender discrimination in violation of the
Equal Pay Act (“EPA”), 29 U.S.C. § 206(d)(1). She alleges that her male counterparts
receive higher salaries for the same work and that her salary is the result of unlawful gender
discrimination.
Motion to Disqualify
Plaintiff moves to disqualify Defendant’s counsel, Rachel Bacalzo, for conduct that
allegedly occurred during a deposition-preparation meeting with Stephanie Hahn on February
29, 2012. Ms. Hahn, like Plaintiff, is employed as a State Supervisor with the ADE. On June
15, 2012, Ms. Hahn filed her own EPA claim. Hahn v. Arizona Department of Education,

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2:12-cv-01299-FJM. She is represented by Plaintiff’s counsel, Peter Strojnik.
Plaintiff alleges that Ms. Bacalzo, in her meeting with Ms. Hahn, “suborned perjury
of a witness in this action, intimidated, pressured and argued with a witness, attempted to
influence a witness, and demeaned and disparaged Plaintiff’s former counsel.” (Doc. 84 at
1.) Plaintiff seeks to disqualify Ms. Bacalzo under LRCiv 83.2(e) and the Arizona Rules of
Professional Conduct,1 specifically Ethical Rule 8.4(c), which states that “[i]t is professional
misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.” (Id.)
Defendant responds that the allegations of misconduct are untrue and that
disqualification would not be an appropriate remedy even if the allegations were true because
Plaintiff cannot show that she will suffer prejudice from Ms. Bacalzo’s continued
involvement in this case. (Doc. 98.) The Court agrees.
To avoid the use of ethical rules for the tactical disqualification of opposing counsel,
Arizona law provides that “[o]nly in extreme circumstances should a party to a lawsuit be
allowed to interfere with the attorney-client relationship of his opponent.” Alexander v.
Superior Court, 141 Ariz. 157, 685 P.2d 1309, 1313 (1984); see Amparano v. ASARCO, Inc.,
208 Ariz. 370, 93 P.3d 1086, 1092 (Ariz.Ct.App.2004) (“The rules of professional
responsibility are for ethical enforcement and are not designed to be used as a means to
disqualify counsel.”); Gomez v. Superior Court, 149 Ariz. 223, 717 P.2d 902, 905 (1986)
(noting that Arizona courts “view with suspicion” motions to disqualify opposing counsel
based on a conflict of interest or appearance of impropriety.); see also Optyl Eyewear
Fashion Int’l Corp. v. Style Cos., Ltd., 760 F.2d 1045, 1050 (9th Cir.1985) (explaining that
disqualification motions should be subjected to “particularly strict scrutiny” because of their

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Under Rule 83.2(e) of the Local Rules of Civil Procedure, “[t]he ‘Rules of
Professional Conduct,’ in the Rules of the Supreme Court of the State of Arizona, shall apply
to attorneys admitted or otherwise authorized to practice before the United States District
Court for the District of Arizona.”
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potential for abuse); In re Cnty. of L.A., 223 F.3d 990, 996 (9th Cir. 2000) (“A motion to
disqualify a law firm can be a powerful litigation tactic to deny an opposing party’s counsel
of choice.”). Motions to disqualify therefore “require careful scrutiny of the facts before such
a result is permitted.” Security General Life. Ins. Co. v. Superior Court, 149 Ariz. 332, 718
P.2d 985, 988 (1986). The moving party has the burden of showing that the Court should
disqualify an attorney from representing her client. Alexander, 685 P.2d at 1313; Amparano,
93 P.3d at 1093.
“To preserve the integrity of the judicial system close or doubtful cases should be

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resolved in favor of disqualification.” Richards v. Holsum Bakery, Inc., No. CV09-418-PHXMHM, 2009 WL 3740725, at *6 (D.Ariz. November 5, 2009) (citing Faison v. Thornton, 863
F.Supp. 1204, 1216 (D.Nev. 1993)). However, because of the “great prejudice often
associated with an enforced change of counsel, courts applying these standards have granted
disqualification only when the moving party has demonstrated substantial and irreparable
harm growing out of the ethical violation.” Id. (quoting Complaint of Korea Shipping Corp.,
621 F.Supp. 164, 169 (D.Alaska 1985)). “Whenever possible the courts should endeavor to
reach a solution that is least burdensome upon the client or clients.” Alexander, 685 P.2d at
1313.
In support of her motion to disqualify Ms. Bacalzo, Plaintiff has submitted a
declaration from Ms. Hahn. (Doc. 89, Ex. 1.) Much of the declaration is characterized by
subjective statements such as, “I could tell immediately that [Ms. Bacalzo] was attempting
to intimidate me,” “It was my general sense that Ms. Balcazo wanted me to testify as she
explained the facts to me,” and “I felt as though if [sic] I had a choice between agreeing with
Ms. Bacalzo’s representations or she would continue to argue with me.” (Id., ¶ 10.)
Elsewhere, Ms. Hahn attests that Ms. Bacalzo instructed her to answer “I don’t
remember” if she was asked a question and was unable to remember even “one minor detail
of a part of a larger question.” (Id., ¶ 13.) She also states that Ms. Balcazo argued with her
and pressured her into accepting Ms. Balcazo’s views concerning the qualifications and
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responsibilities of State Supervisors. (Id., ¶ 14–16.) Ms. Hahn states, however, that she did
not commit perjury during her deposition testimony. (Id., ¶ 2.)
In response to Plaintiff’s motion, Defendant has provided a declaration from Ms.
Balcazo denying all of Ms. Hahn’s allegations of unethical conduct. (Doc. 98-1.) She attests
that she did not try to intimidate or pressure Ms. Hahn but instead emphasized the
importance of testifying truthfully. (Id., ¶ 3.) Ms. Bacalzo further states that, with respect to
questions about the qualifications and responsibilities of State Supervisors, she advised Ms.
Hahn to stick to the facts and not offer an opinion about the similarities or differences
between the various positions, which was a legal question to be argued by the lawyers. (Id.,
¶ 5.) Finally, Ms. Bacalzo attests that Ms. Hahn’s deposition testimony was consistent with
the views she expressed at the February 29 meeting. (Id., ¶ 6; see id., Ex. 1.) Presented with
these declarations, the Court finds that Plaintiff falls far short of meeting her burden of
showing that opposing counsel violated any ethical rules, let alone that she should be
disqualified.
The Court also notes that Plaintiff’s motion to disqualify counsel was filed on
September 27, 2012, seven months after the February 29 meeting between Ms. Hahn and Ms.
Balcazo.2 During that period, Plaintiff filed numerous documents with the Court, none of
which raised allegations of misconduct. Ms. Hahn attests that she felt comfortable raising
these allegations only after retaining Mr. Strojnik (Doc. 89, Ex. 1, ¶ 3 ), which occurred some
time prior to June 8, 2012 (see Doc. 73). However, Plaintiff filed documents after that date
without making any reference to Ms. Hahn’s allegations. These include Plaintiff’s motion
for a status conference and reply in support (Docs. 73, 75), Plaintiff’s reply in support of her
motion to compel (Doc. 79), and Plaintiff’s motion for summary judgment and supporting

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Plaintiff’s counsel first raised the issue of the alleged misconduct in a letter to Ms.
Bacalzo dated September 7, 2012, following the filing of the parties’ summary judgment
motions. (Doc. 89-1, Ex. 2.) The letter, which was written in response to a letter from Ms.
Bacalzo stating that Plaintiff’s disclosure of damages amounts was untimely, accused Ms.
Bacalzo of engaging in “unethical deposition prep.” (Id.)
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statement of facts (Docs. 84, 85). Further, Ms. Hahn, in her own lawsuit, has not moved to

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disqualify Ms. Balcazo.

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Plaintiff filed her motion only after the completion of discovery and the filing of

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summary judgment motions, and long after the alleged misconduct for which disqualification

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is sought. She has offered no plausible explanation for this delay, nor has she cited any

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prejudice resulting from Ms. Bacalzo’s continued representation of Defendant.

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“Where a litigant uses a motion to disqualify as a tool to deprive its opponent of

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counsel of its choice, especially after substantial preparation of the case for trial has occurred,

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the court may properly find that the balance of the parties’ interests tips sharply in favor of

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the nonmoving party.” U.S. for Use and Benefit of Lord Elec. Co., Inc. v. Titan Pacific Const.

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Corp., 637 F.Supp. 1556, 1563 (W.D.Wash. 1986); cf. Corbello v. Devito, 2:08-CV-00867-

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RCJ, 2011 WL 3859466 (D.Nev. Aug. 31, 2011) (noting that “[m]otions to disqualify

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opposing counsel have indeed become a popular tool of litigators to disrupt, distract, and

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deprive a party of the counsel of her choice”). Here, the balance of the parties’ interests tips

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sharply in favor of Defendant. The case for disqualification is not a close or doubtful one.

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Motion to Strike

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Citing Rule 56(h) of the Federal Rules of Civil Procedure, Plaintiff asks the Court to

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strike declarations by Janet Brite, Program Director of the Career Pathways Unit, and Debbie

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Jackson, former head of Human Resources with the ADE, which were submitted by

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Defendant in support of its motion for summary judgment. (Doc. 94 at 1.) Plaintiff also

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requests that the Court hold Ms. Brite, Ms. Jackson, and Ms. Balcazo in contempt. (Id.)

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Defendant acknowledges factual errors in the declarations and has filed corrected

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declarations and a corrected statement of facts. (See Docs. 102–104.) Defendant disputes

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Plaintiff’s contention that other portions of the declarations were untrue.

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Plaintiff cites as “materially false” the following information allegedly contained in

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the original declarations: that Plaintiff received a “special entrance rate” when she was hired;

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that male comparators Jason Wojcik, James Wojcik, and Bruce Watkins received a “special

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recruitment rate”; that each State Supervisor must have considerable knowledge, education,

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experience, and training in the program areas he or she oversees; and that Jason Wojcik had

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a supervisory role which contributed to his higher salary. (See Doc. 106 at 10.)

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The new declarations correct and clarify these issues, and a review of the record

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shows that Plaintiff’s challenges to the veracity of the declarations are meritless. First, Ms.

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Jackson’s corrected declaration, which defines “special entrance rate” as any rate above the

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minimum of the established pay range (Doc. 103, Ex. B, ¶¶ 9–10), rebuts Plaintiff’s

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allegation that she did not receive a special entrance rate when hired. Next, Plaintiff’s

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allegation that the declarations falsely stated that the Wojciks and Watkins received a

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“special recruitment rate” is unsupported because the declarations do not contain any such

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statements. Next, Plaintiff’s argument that State Supervisors do not each have considerable

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knowledge, education, experience, and training in their program areas, is not sufficient to

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render Defendant’s opposing position materially false. (See Doc. 102 at 5–10.) Finally, Ms.

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Brite attested that Jason Wojcik became a supervisor in October 2010. (Doc. 103, Ex. A, ¶

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19.) The fact that Plaintiff disagrees does not make Ms. Brite’s declaration materially false.

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Under these circumstances, it is unnecessary to strike the declarations. See Messick

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v. Horizon Indus., 62 F.3d 1227, 1231 (9th Cir. 1995) (explaining that “the non-moving party

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is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by

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opposing counsel on deposition and minor inconsistencies that result from an honest

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discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an

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opposition affidavit”); Yeager v. Bowlin, 693 F.3d 1076, 1081 (9th Cir. 2012) (“We caution

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that newly-remembered facts, or new facts, accompanied by a reasonable explanation, should

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not ordinarily lead to the striking of a declaration as a sham.”). To the extent that the

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corrected declarations differ from the originals, the inconsistencies are neither material nor

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clear and ambiguous enough to justify striking the declarations. See Van Asdale v.

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International Game Technology, 577 F.3d 989, 998–99 (9th Cir. 2009).

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Finally, the Court finds that sanctions are unwarranted under Rule 56(h). Plaintiff has

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offered no evidence that the declarations were submitted in bad faith, nor is such an

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accusation supported by the record. See Raher v. Federal Bureau of Prisons, No. 03:09-cv-

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0526-ST, 2011 WL 4832574, at *8 (D.Or. October 12, 2011) (“Bad faith in the context of

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Rule 56(h) requires a deliberate or knowing act for an improper purpose. Affidavit testimony

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that is materially contradicted by prior deposition testimony alone is not sufficient to show

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the necessary bad faith under Rule 56(h).”).

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Conclusion
Plaintiff has failed to offer factual or legal support for her motion to disqualify counsel
and her motion to strike.

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Accordingly,

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IT IS HEREBY ORDERED denying Plaintiff’s Motion to Disqualify Counsel Due

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to Suborning Perjury of a Witness (Doc. 89).

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IT IS FURTHER ORDERED denying Plaintiff’s Motion to Strike Materially False

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Declarations of Janet Brite and Debbie Jackson and to Hold Janet Brite, Debbie Jackson and

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Attorney Balcazo in Contempt of Court (Doc. 94).

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DATED this 26th day of November, 2012.

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