McCoy v. Department of the Army et al

Filing 90

TENTATIVE PRETRIAL CONFERENCE ORDER signed by Judge Lawrence K. Karlton on 10/7/11. Motions in Limine are to be heard on 12/5/2011 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. A Settlement Conference is SET for 1/12/2012 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. Jury Trial is SET for 3/20/2012 at 10:30 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton; and is estimated to take approximately five days. (Kastilahn, A)

FILED
OCT

? 2011

UNITED STATES DISTRICT COURT
7

EASTERN DISTRICT OF CALIFORNIA

8

ROSLYN McCOY,

9
lo

1

Plaintiff,

NO. CIV. 5-09-1973 LKK/CMK
PRETRIAL CONFERENCE ORDER
[TENTATIVE1

12 11 HONORABLE JOHN McHUGH.

SECRETARY OF THE ARMY,
13

Defendant.

l5
16
17
18

Pursuant to court
a Pretrial Conference was
1 Chambers on October order,LARRY A. ORGAN and BARBARA E .held in
FIGARI

1
I

3, 2011.

PICKLES and LYNN
I(1 appeared as counsel for plaintiff; TODD A.After hearing, theTRINKA
ERNCE appeared as counsel for defendants.
court

1I

19 makes the following findings and orders:
20

I. JURISDICTION/W~

21

Jurisdiction is predicated upon 28 U.S.C. 5 1331, as this is

22

an action
1I1 predicatedarising underC.the federal Rehabilitation Act.anVenue is
upon
S.
, as defendant is
officer

23
24
25
26

28 U.

I
1
I
1
I

1 1391 (3) (2)

of the United States, and a substantial part of the events occurred
in Sacramento. The court has heretofore found both jurisdiction
and venue proper and confirms those orders.

JVRY/NON-JURY

11.

The trial will be by jury.
111.

UNDISPUTED FACTS

The parties have stipulated that the following facts are
undisputed:
GENERAL FACTS RELEVANT TO ALL CAUSES OF ACTION
1.

Plaintiff began working at

the Army

Corps of

Engineers in May 2005.
2.

Plaintiff was hired through the Workforce Recruitment

Program, which provided funding for units within the Department
of the Defense to hire persons with disabilities for limited
80-day terms of employment.
3.

Plaintiff applied for a position through the program,

self-designating as having a learning disability, and accepted
a position as an administrative support assistant in the Equal
Employment Opportunity ("EEO")Office in Sacramento.
4.

Plaintiff

has

a

severe

form

of

the

learning

disability dyslexia, which makes it difficult for her to fully
comprehend written words.
5.

Plaintiff's disability

substantially limits her

ability to read and comprehend.
6.

Plaintiff did

well

in school, graduating from

Humboldt State College in 2005 with a degree in Psychology, but
needed to spend significantly more time studying than students
without her disability.
7.

Prior to beginning her work in the EEO office,
2

Plaintiff spoke to Linda Brown, who was the manager of the EEO
office, and discussed with Brown Plaintiff's disabilities and
the accommodations she would be provided.
8.

Also in the EEO Office was Barbara Dwyer, an EEO

Specialist, and there were also other individuals who had
collateral duties for the EEO office.
9.

Plaintiff, Ms. Brown, and Ms. Dwyer were the only

individuals who worked in the EEO Office, and Ms. Dwyer and
Plaintiff were the only individuals supervised by Ms. Brown.
10.

Ms. Brown was Plaintiff Is supervisor during the

entire time period of her employment in the EEO Office.
11.

At the end of Plaintiff Is 80-day appointment under

the Workforce Recruitment Program, Brown converted Plaintiff
to a 2-year "excepted" or special appointment with the Corps.
12.

Plaintiff s new position was a Program Support Clerk,

in which she primarily provided clerical and administrative
support to the EEO Office, focused primarily on special
emphasis programs.
13.

In her capacity as the Program Support Clerk, she

assisted Ms. Brown, Ms. Dwyer, and the Special Emphasis Program
Managers, who did not work in the EEO Office but devoted up to
20% of their time as collateral duty to managing special
emphasis

programs,

such

as

those

for

individuals with

disabilities, or minorities.
14.

Plaintiff began her probationary period in this

position on October 1, 2005.
3

15.

On April 7, 2006, Plaintiff and Ms. D y e r were

entering the Army Corps office at the same time as A.R. Smith,
another employee of the Corps.
16.

Mr. Smith is African-American.

17.

In August 2006, Plaintiff was involved in making

changes to a flyer for the Diversity Jubilee, an event
sponsored by the EEO Office.
18. Some of the contents of the flyer were inaccurate,

which was discovered by Ms. Brown while she was meeting with
Debora Richert, the Chief of Staff, on or about August 23,
2006.

Ms. Richert instructed Ms. Brown to schedule a meeting

between Ms. Richert, Ms. Brown, Plaintiff, and Ms. Dwyer to
discuss the error in the flyer.
19.

On August 23, 2006, Chief of Staff Richert held a

meeting in her office, attended by Plaintiff, Ms. Dwyer and Ms.
Brown, in which the errors in the Diversity Jubilee flyer were
discussed.

During the meeting, Chief of Staff Richert asked

Plaintiff whether she was expected to proofread her own work
and Plaintiff responded, "No."
20.

On or about August 23, 2006, Ms. Brown wanted to

reward the initiative shown by her staff in setting up meetings
with volunteers for the Diversity Jubilee event, and inquired
separately of Plaintiff and Ms. Dwyer as to whose idea it was
to set up meetings with the volunteers.
21.

Both Plaintiff and Ms. Dwyer separately claimed

credit for the idea.
4

22.

On September 7,

Plaintiff that
September 15,
You

her

2006.

are

employment

was

terminated

effective

The notice stated:

being

unsatisfactory

Ms. Brown gave notice to

2006,

terminated

conduct

because

including

making

of

your

a

false

statement to the Chief of Staff during a meeting on
August

2006

23

wherein you stated "you were not required

to proofread your work"; on

24

August

2006,

you made

a false statement to me when you said that it was your
idea to meet with Diversity Jubilee volunteers prior
to the event; and your inappropriate comment to a
member of the Safety Office on 7 April
23.

2006.

Plaintiff was in a two-year special appointment

position.
UNDISPUTED FACTS RELEVANT TO PLAINTIFF'S EMPLOYMENT
DISCRIMINATION BASED ON DISABILITY CLAIM
1.

Initially, Ms. Brown proofread Plaintiff's work

product.
UNDISPUTED FACTS RELEVANT TO PLAINTIFF'S RETALIATION CLAIM
1.

In late spring of

2006,

Plaintiff met with Human

Resources representative Ted Surratt to discuss her job
description.
2.

August 9,
3.

Plaintiff met with Chief of Staff Debora Richert on
2006.

Ms. Brown knew that one of the subjects discussed in

the August 9, 2 0 0 6 meeting between Plaintiff and Chief of Staff
5

Richert was Ms. Brown's "management style."
IV.

DISPUTED FACTUAL ISSUES

GENERAL DISPUTED FACTUAL ISSUES RELEVANT TO U L CLAIMS
1.
23,

Whether or not Ms. Brown believed that, as of August

2006,

Plaintiff

was

responsible

for

proofreading

Plaintiff's final work product (This is relevant to all claims
because Ms. Brown alleged that Plaintiff made an untrue
statement regarding this issue and asserts this statement as
3ne of the non-retaliatory and non-discriminatory bases for the
decision to terminate Plaintiff's employment.)
2.

Whether or not Ms. Brown believed that Plaintiff

attempted to take credit for a co-worker's work related to
setting up a meeting with volunteers for Diversity Jubilee.
(This is relevant to all claims because Ms. Brown alleged that
Plaintiff made untrue statements regarding this issue and
asserts

this

as

one

of

non-discriminatory bases

for

the
the

non-retaliatory
decision

to

and

terminate

Plaintiff.)
3.

Whether or not the alleged offensive comment made by

Plaintiff to Mr. A.R. Smith contributed to Ms. Brown's decision
to terminate Plaintiff's employment. (This is relevant to all
claims because Defendant alleges that this statement was one
3f the non-retaliatory and non-discriminatory bases for the
decision to terminate Plaintiff's employment.)
4.

Whether or not the reasons stated by Ms. Brown in the

notice to Plaintiff that she was terminated, are false. (This
6

is relevant to whether or not Plaintiff Is disability and/or
protected activity contributed to the decision to terminate
Plaintiff.)
5.

Whether or not Plaintiff's employment would have

continued past September 30, 2007.

(This is relevant to

whether Plaintiff would be entitled to back and front pay
damages after September 30, 2007.)
6.

Whether or not Ms. Brown approached Human Resources

representative Ted Surratt about making Plaintiff's position
permanent and to promote her approximately one month prior to
the termination of Plaintiff's employment.

(This is relevant

to whether Plaintiff would be entitled to back and front pay
damages after September 30, 2007.)
7.

Whether or not Plaintiff normally used special

software that read documents to her aloud in order to help her
understand the words. She normally used four types of software
to read and write. (This is relevant to Plaintiff's claim for
disability discrimination, and relevant to whether Ms. Brown's
statements that Plaintiff was to proofread her own work were
false.)
8.

Whether or not, because of her disability, it takes

Plaintiff significantly longer to read and comprehend a
document than a person without her condition.

(This is

relevant to Plaintiff's claim for disability discrimination,
and relevant to whether Ms. Brown's statements that Plaintiff
was to proofread her own work were false.)
7

9.

Whether or not Mr. Smith heard Plaintiff say to him

"where are you going, we don't let your kind in here."
is relevant to all

claims, specifically as

(This

to whether

Defendant's stated reasons for Plaintiff's termination are
false.)
10.

Whether or not, in her deposition in June 2010,

Plaintiff could not recall her exact words to Mr. Smith on
April 9, 2006.

(This is relevant to all claims, specifically

as to whether Defendant's stated reasons for Plaintiff's
termination are false.)
11.

Whether or not, at the fact-finding conference in May

2007, Plaintiff testified she said to Mr. Smith on April 9,
2006, "they let peoples like you in here."

(This is relevant

to all claims, specifically as to whether Defendant's stated
reasons for Plaintiff's termination are false.)
12.

Whether or not Mr. Smith prepared a memorandum

recording the details of the conversation, which he recalls
preparing that same day as the incident on April 9, 2006.
(This is relevant to all claims, specifically as to whether
Defendant's stated reasons for Plaintiff's termination are

.

false

13.

Whether or not Mr. Smith later sent a copy to Ms.

Brown because he wanted to let Brown know of the incident as
she was Plaintiff's supervisor and because Plaintiff worked in
the EEO office. (This is relevant to all claims, specifically
as to whether Defendant's stated reasons for Plaintiff's
8

:emination are false.)
14.

Whether or not, after learning about the incident,

4s. Brown counseled Plaintiff on the inappropriate remark,
Einding her explanation not credible and nonsensical. (This is
relevant to all claims, specifically as to whether Defendant's
stated reasons for Plaintiff's termination are false.)
15.

Whether or not, in June 2006, Plaintiff received a

>erformance evaluation from her supervisor, Linda Brown.

In

:his evaluation, Plaintiff received an overall rating of
'Successful,' with no rating less than

successful" in any of

: e six subcategories. In the evaluation, Ms. Brown commented,
h
'Roslyn does an excellent job of staying on top of several
3rojects at the same time.

Roslyn is always looking for a

setter, faster, easier way to complete assignments. (This is
relevant to all claims, specifically as to whether Defendant's
3tated reasons for Plaintiff's termination are false. This is
3lso relevant to Plaintiff's damages, specifically whether she
~ouldhave been promoted and/or retained by Defendant absent
x discriminatory or retaliatory termination.)

16. Whether or not Ms. Brown met with both Ms. Dwyer and

?laintiff together, and asked them again who it was that set
i the volunteer meeting given that they both claimed credit
p
it. (This is relevant to all claims, specifically as to whether
lefendantls stated reasons for Plaintiff's termination are
false.)
17. Whether or not Ms. Dwyer indicated that it was her
9

idea, and Plaintiff remained silent for a long period, and
Plaintiff again remain silent when Ms. Brown asked her directly
why she claimed credit for work that Ms. Dwyer was claiming
credit for. (This is relevant to all claims, specifically as
to

whether

Defendant's

stated

reasons

for

Plaintiff's

termination are false.)
18. Whether or not, thereafter, Ms. Brown decided to
terminate
period.

Plaintiff's employment during

the probationary

(This is relevant to all claims, specifically as to

whether Defendant's stated reasons for Plaintiff's termination
are false.)
,19.

Whether

or not

Plaintiff's position would

not

automatically convert to a permanent position at the end of
that term. (This is relevant to all claims, specifically as to
whether Defendant's stated reasons for Plaintiff's termination
are false.

This is also relevant to Plaintiff's damages,

specifically whether she would have been promoted and/or
retained by Defendant absent a discriminatory or retaliatory
termination.)
20.

Whether or not Ms. Brown

stopped proofreading

Plaintiff Is work product at some point prior to the termination
of Plaintiff's employment unless Plaintiff requested that
Brown review Plaintiff's work.

Ms.

(This is relevant to all

claims, specifically as to whether Defendant's stated reasons
for Plaintiff's termination are false.)
21. Whether or not Plaintiff and Ms. Dwyer testified that
10

they were treated similarly by Ms. Brown, as did some of the
Special Emphasis Program Managers who had interactions with Ms.
Brown. (This is relevant to all claims, specifically as to
whether Defendant's stated reasons for Plaintiff's termination
are false, whether Plaintiff was discriminated against, and
whether Plaintiff was retaliated against.

This is also

relevant to Ms. Brown1 alleged animus, and whether she treated
s
similarly situated employees differently.)
22.

Whether or not, a few months after Plaintiff's

termination, Ms. Brown proposed that Ms. Dwyer's employment be
terminated

as

well.

(This is

relevant

to

all

claims,

specifically as to whether Defendant's stated reasons for
Plaintiff's termination are false, whether Plaintiff was
discriminated against, and whether Plaintiff was retaliated
against. This is also relevant to Ms. Brown's alleged animus,
and

whether

she

treated

similarly

situated

employees

differently.)
23.

Whether or not Ms. Dwyer is disabled. (This is

relevant to all claims, specifically as to whether Defendant's
stated reasons for Plaintiff's termination are false, whether
Plaintiff was discriminated against, and whether Plaintiff was
retaliated against.

This is also relevant to Ms. Brown's

alleged animus, and whether she treated similarly situated
employees differently.)
24.

Whether or not Ms. Brown ever inquired of Plaintiff

or Ms. Dwyer as to what was said in the meeting with Ms.

Richert on August 9, 2006. This is relevant to all claims,
specifically as to whether Defendant's stated reasons for
Plaintiff's termination are false, whether Plaintiff was
discriminated against, and whether Plaintiff was retaliated
against. This is also relevant to Ms. Brown's alleged animus,
and whether

retaliated against Plaintiff for making a

complaint.)
DISPUTED FACTUAL ISSUES RELEVANT TO PLAINTIFF'S EMPLOYMENT
DISCRIMINATION BASED ON DISABILITY CLAIM
1.

Whether

or

not

Plaintiff's disability

was

a

motivating reason for Ms. Brown's decision to terminate her.
(This is relevant to whether Plaintiff's disability contributed
to the decision to terminate Plaintiff's employment.)
2.

Whether or not Ms. Brown told a co-worker in July or

August 2005, that Plaintiff was not of average intelligence,
nor could she read or write, or words to that effect.

(This

is relevant to whether Plaintiff's disability contributed to
the decision to terminate Plaintiff's employment.)
3.

Whether or not Ms. Brown referred to Plaintiff in

July or August 2005, as "mentally handicapped."

(This is

relevant to whether Plaintiff's disability contributed to the
decision to terminate Plaintiff's employment.)
4.

Whether or not Ms. Brown stated in July or August

2005, that each of her employees was "handicapped by one form

of stupidity or another."

(This is relevant to whether

Plaintiff's disability contributed to the decision to terminate
12

Plaintiff's employment.)
5.

Whether

or not Ms.

Brown

expressed anger and

resentment about the time and effort she had to give her own
daughter, who Plaintiff claims Ms. Brown referred to as
"mentally retarded" or "mentally ill."

(This is relevant to

whether Plaintiff's disability contributed to the decision to
terminate Plaintiff's employment.),
6.

Whether or not Ms. Brown concluded she could not

trust Plaintiff's judgment or her candor because of Plaintiff's
two allegedly false statements in August 2006, coupled with
Plaintiff's earlier allegedly racially offensive statement to
Mr. Smith in April 2006.
7.

Whether or not Ms. Brown terminated Plaintiff's

probationary employment due to Ms. Brown's alleged lack of
trust in Plaintiff's judgment and her candor.
8.

Whether or not Ms. Brown followed correct government

procedure in disciplining Plaintiff and whether government EEO
officials followed correct procedure in addressing Plaintiff's
complaints.
9.

Whether or not Plaintiff and Ms. Dwyer testified that

they were treated similarly by Ms. Brown, as did some of the
Special Emphasis Program Managers who had interactions withMs.
Brown.
10. Whether or not, a few months after Plaintiff's

termination, Ms. Brown proposed that Ms. Dwyer's employment be
terminated as well.
13

11.

Whether or not Ms. Dwyer is disabled.

DISPUTED FACTUAL ISSUES RELEVANT TO PLAINTIFF'S RETALIATION
CLAIM
1.

Whether or not Plaintiff raised concerns about a

hostile work environment and/or disability discrimination
during Plaintiff's meeting with Ms. Richert in August 2006.
(This is relevant to the issue of whether Plaintiff engaged in
protected activity.)
2.

Whether or not Ms. Brown became upset with Plaintiff

for "going over Ms. Brown's headu1
by talking to a member of
Human Resources about Plaintiff's position description in May
or June 2006.

(This is relevant to Plaintiff's retaliation

claim because

it relates to whether Ms. Brown harbored

retaliatory animus.)
3.

Whether or not Ms. Brown told Plaintiff that "if she,

[Ms. Brown] were any other supervisor1'Plaintiff would have
been fired. (This is relevant to Plaintiff's retaliation claim
because it relates to whether Ms. Brown harbored retaliatory
animus.)
4.

Whether or not, prior to Ms. Brown's decision to

terminate Plaintiff's probationary employment, Ms. Brown knew
that Plaintiff had allegedly complained about a hostile work
environment and disability discrimination during the August 9,
2006 meeting with Chief of Staff Richert.

(This is relevant

to whether Plaintiff's alleged protected activity contributed
to the decision to terminate Plaintiff.

V.

NON-DISCOVERY MOTIONS TO THE COURT

AND RESOLUTION

Plaintiff moved for IFP status, which was granted and
appointment of counsel, which was denied. Plaintiff moved for
a default judgment, which was denied, and the Army Corps moved
to dismiss the First Amended Complaint, which was mooted by
plaintiff filing an Amended Complaint omitting the Army Corps,
and naming only McHugh, Secretary of the Army, as defendant.
Defendant moved to dismiss the Declaratory Judgment claim of
the Second Amended Complaint, which was granted with prejudice,
and to strike and dismiss the Third Amended Complaint, which
was granted. Defendant moved for summary judgment, which was
granted as to compensatory damages for the retaliation claim,
and otherwise denied.
The plaintiff

now

claims

that

later Ninth Circuit

determinations suggest that the court's original ruling was
erroneous. Despite the fact that law and motion has been cut
off, the court will grant the plaintiff fifteen (15) days to
file a motion for reconsideration and the court will hear the
matter on December 5, 2011 at 10:OO a.m.
VI.

DISPUTED EVIDENTIARY ISSUES

Plaintiff intends to move in limine, pursuant to Fed. Rule
of Evidence 403, to exclude evidence of the details of the
comment made by Plaintiff to A.R. Smith on April 7, 2006 and
to

limit

references

to

such

comment

to

the

phrase:

"inappropriate comment." The phrase llinappropriate
comment" is
the phrase used by Linda Brown in Plaintiff's notice of
15

Termination. The details of the comment were not stated in the
Notice of termination and the danger of prejudice associated
with these comments substantially outweighs their probative
value.
Plaintiff anticipates that issues regarding production of
evidence during discovery, document retention, and compliance
with

document

retention

policies

will

evidentiary issues to be addressed.

also

constitute

Plaintiff anticipates

addressing these issues through jury instructions.
Plaintiff anticipates that Defendant will move to exclude
testimony

related

specifically,

to

witnesses

Plaintiff's
who

will

emotional
testify

distress,

about

their

observations of Plaintiff before and after her termination.
Plaintiff suggests that this issue be resolved by motion in
limine .
The Secretary will move to exclude any expert opinion
testimony to be offered on behalf of Plaintiff, including
testimony by her mother, Lois McCoy, her son, Jonathan McCoy,
and her friend, Polly Baumbauer, and by any other individual
identified on Plaintiff's Witness List [D.E. 851, as well as
exhlbits containing similar evidence.

See Pltf's Proposed

Exhibits 76 and 80. Plaintiff had at one point identified her
mother, son, and friend as potentially providing expert witness
testimony but failed to present any reports for them under Rule

.

26 (a)(2)

After the Secretary objected, Plaintiff withdrew the

designations for Lois McCoy and Polly Baumbauer, and also
16

failed to produce a report for Jonathan McCoy.

Accordingly,

?laintiff is barred from eliciting expert testimony or opinions
from these individuals at trial.

R.
;
See Fed. Civ.P. 26 (a)(2)

?ed.R.Civ.P. 37 (c)(1).
The Secretary will move to exclude or otherwise limit
?laintiff1s testimony regarding emotional distress to her
;tipulation that she suffered "garden variety" emotional
fistress. In particular, in response to the Secretary's notice
:hat he would be seeking an independent medical (physiological)
sxamination, Plaintiff conceded she is only seeking garden
rariety emotional distress.
judgment on this point.

She also did not oppose summary
Accordingly, the jury should be

instructed that she is seeking only "garden variety" emotional
listress, and Plaintiff should be limited to only her own
:estimony on this point.
The Secretary will move to limit Plaintiff's compensatory
lamages to "garden variety" emotion distress, and to exclude
my

other

form

of

compensatory damages, based

on

her

3tipulation to that effect and based on the absence of any
2ompetent testimony or evidence with respect to any other
2ompensatory damages.

This includes Plaintiff's apparent

intention to claim as damages certain dental expenses, as
indicated by proposed exhibits identified on Plaintiff's
Zxhibit List [DE 841. See, e.g., Pltf's Proposed Exhibits 61,
52.

The

Secretary

previously

objected

to

Plaintiff's

lesignation of her dentist as an expert, and Plaintiff
17

subsequently withdrew that designation and has failed to
designate any expert or provide an expert report with respect
to any alleged dental harm caused by the alleged discriminatory
termination. Accordingly, Plaintiff has no admissible evidence
showing any causal connection and such evidence must be
excluded.
The Secretary will move to exclude testimony from Helen
Warren and Elaine Woodhall, both of whom are listed as
witnesses on Plaintiff's Witness List.
and 18.

See DE 85, at Nos. 16

The Secretary propounded discovery on Plaintiff to

identify individuals with knowledge of facts relevant to
Plaintiff's claims.

Neither of these individuals was ever

identified as a potential witness by Plaintiff in her discovery
responses nor in any supplemental responses.

Plaintiff's

failure to timely disclose the identities of these individuals
during discovery forecloses their appearance at trial.

.

Fed.R.
Civ.P.33 ; Fed.R.Civ.P. 37 (c)(1)

See

Further, Ms. Warren

appears to relate to the declaratory relief claim for a
different administrative complaint; the subject of which was
dismissed from this action by the Court's order.

See DE 62.

Accordingly, Ms. Warren's proffered testimony is irrelevant.
Plaintiff has identified numerous documents that do not
reference a Bates number.
opportunity

to

determine

Until the Secretary has the
whether

these

documents

have

previously been produced by Plaintiff in response to the
Secretary's

discovery

requests, or

were

otherwise made

available to the Secretary through discovery or were part of
the administrative record, the Secretary reserves the right to
object to any documents or.evidence that was not previously
produced to the Secretary in discovery.

See Fed.R.Civ.P.34;

Fed.R.Civ.P. 37(c) (1).
Plaintiff has identified the entirety of the testimony
before the Administrative Law Judge, as well as affidavits or
statements from various individuals that Plaintiff has also
identified as her witnesses. See Plaintiff's Proposed Exhibit
List [DE 841, at Ex. Nos. 58, 59, 78, 79, 81-82. The Secretary
reserves the right to object to any particular testimony or
affidavit by Plaintiff's witnesses on the basis of hearsay or
any other applicable evidentiary basis prior to or at the time
of trial.
Plaintiff has identified a significant number of witnesses
that appear to be character witnesses only and/or related to
the issue of Plaintiff's emotional state, and will not testify
to any percipient knowledge about the alleged discrimination
and retaliation in connection with her termination.

See

Plaintiff's Witness List [DE 851, Nos. 1, 4, 8, 9, 21, 15, 17.
The Secretary reserves the right to challenge all or some of
these witnesses on the basis of the relevance of their
testimony as well as that their testimony will be cumulative
and unduly burdensome.
Plaintiff has identified as potential exhibits letters of
recommendation unrelated to any issues in the case, including
19

her initial appointment, and letters to employers subsequent
to her termination. See Plaintiff's Proposed Exhibit List [DE
841,

at Ex. Nos. 34, 35,

37,

and

38,

39.

The Secretary will

nove to exclude these documents as hearsay and irrelevant.
The Secretary will move to exclude and have Plaintiff
destroy or return all copies of an attorney-client privileged
document that was inadvertently produced to Plaintiff in
discovery.

The Secretary had previously identified the

document, and withheld it from discovery, but another copy was
inadvertently produced. On September 21, 2011, the Secretary
informed Plaintiff of this issue after reviewing Plaintiff's
exhibit list, and requested Plaintiff destroy or return the
document.

Plaintiff has not responded to date.

Plaintiff's

possession and use of the document is foreclosed.

See

Fed.R.Evid. 702; Fed.R.Civ.P. 26 (b)(5)(B).
The parties shall file cross motions in limine to be heard
3n the same date as the motion to reconsider.
VII.

SPECIAL FACTUAL INFORMATION

None.
VIII.

RELIEF SOUGHT

Plaintiff seeks:
1.

Back pay,

2.

Compensatory damages,

3.

Injunctive

relief,

including

sanitization

of

plaintiff Is personnel file and a request for a
positive referral,
20

4.

Attorneys' fees, costs of suit and interest.

Defendant seeks judgment in its favor and costs.
IX.

POINTS OF LAW

(a) The elements, standards, and burdens of proof for
naking a federal Rehabilitation Act claim.
(b) The elements, standards, and burdens of proof for

naking a retaliation claim under the federal Rehabilitation
kt.
(c) The legal standard for awarding compensatory damages
(on the discrimination claim), and back pay.
ANY

CAUSES

OF

ACTION OR AFFIRMATIVE DEFENSES NOT

ZXPLICITLY ASSERTED IN THE PRETRIAL ORDER UNDER POINTS OF LAW
\T THE TIME IT BECOMES FINAL ARE DISMISSED, AND DEEMED WAIVED.
ABANDONED ISSUES

X.

None.
XI.

WITNESSES

Plaintiff anticipates calling the following witnesses:
See
- attachment

"A".

Defendant anticipates calling the following witnesses:
attachment "B" .
Each party may call a witness designated by the other.
A.

No other witnesses will be permitted to testify

~nless:
(1) The party offering the witness demonstrates that
: e witness is for the purpose of rebutting evidence which
h
I///

21

Could not be reasonably anticipated at the Pretrial Conference,
or
(2)

The witness was discovered after the Pretrial

Conference and the proffering party makes the showing required
in " B M below.
B.

Upon the post-Pretrial discovery of witnesses, the

attorney shall promptly inform the court and opposing parties
of the existence of the unlisted witnesses so that the court
may consider at trial whether the witnesses shall be permitted
to testify. The evidence will not be permitted unless:
(1) The witnesses could not reasonably have been

discovered prior to Pretrial;
(2) The court and opposing counsel were promptly

notified upon discovery of the witnesses;
(3)

If

time

permitted,

counsel proffered

the

witnesses for deposition;
(4) If time did not permit, a reasonable summary of

the witnessest testimony was provided opposing counsel.
XII.

EXHIBITS. SCHEDULES AND S-RIBS

Plaintiff contemplates the following by way of exhibits:

.

See attachment "C"

Defendant contemplates the following by way of exhibits:
See
- attachment
A.

unless :

.

"DT1

No other exhibits will be permitted to be introduced

(1) The party proffering the exhibit demonstrates

that the exhibit is for the purpose of rebutting evidence which
could not be reasonably anticipated at the Pretrial Conference,
or
(2) The exhibit was discovered after the Pretrial
Conference and the proffering party makes the showing required
in paragraph "B ,
B.

below.

Upon the post-Pretrial discovery of exhibits, the

attorneys shall promptly inform the court and opposing counsel
of the existence of such exhibits so that the court may
consider at trial their admissibility. The exhibits will not
be received unless the proffering party demonstrates:
(1) The exhibits could not reasonably have been
discovered prior to Pretrial;
(2)

The court and counsel were promptly informed of

their existence;
(3)

Counsel forwarded a copy of the exhibit(s) (if

physically possible) to opposing counsel.

If the exhibit(s)

may not be copied, the proffering counsel must show that he has
made the exhibit(s) reasonably available for inspection by
opposing counsel.
As to each exhibit, each party is ordered to exchange
copies of the exhibit not later than fourteen (14) days from
the date of this Pretrial Order.

Each party is then granted

fourteen (14) days to file with the court and serve on opposing
counsel any objections to said exhibits.
23

In making said

objections, the party is to set forth the grounds for the
objection.

As to each exhibit which is not objected to, it

shall be marked and received into evidence and will require no
further foundation. Each exhibit which is objected to will be
marked for identification only.
In addition to electronically filing said objections, if
any, the objections must be

submitted by email, as an

attachment

WordPerfecC

in

Word

or

format,

to:

[e-mail].

The attorney for each party is directed to appear before
and present an original and one (1) copy of said exhibit to Ana
Rivas, Deputy Courtroom Clerk, not later than 10 :30 a.m. on the
date set for trial.

All exhibits shall be submitted to the

court in binders.

Plaintiff's exhibits shall be listed

numerically.

Defendant's

exhibits

alphabetically.

The parties shall use the standard exhibit

stickers provided by the court:

shall

be

listed

pink for plaintiff and blue

for defendant.
XIII.

DISCOVERY DOCUMENTS

Discovery documents to be used in the case-in-chief:
Pursuant to Local Rule 281 (b)(12), Plaintiff designates
the following answers to interrogatories and responses to
requests for admissions to be offered at trial:
Defendants' Answers to Interrogatories Nos. 1,2, 3, 4, 6,
8, 9, 11, 17, 18, 21.

////

Defendants1 Requests for Admissions Response Nos. 3, 4,
5, 6, 7, 8, 17, 19, 20, 21, 22.

Defendants' Request for Production of DocUments Responses
Nos. 7, 8, 55.
United States Discovery Documents:
The United States intends to use at trial the following
discovery:
PlaintiffsT responses to admissions nos. 5, 6, 7, 11, 12,
16, 30, 31, 32, 34, 35, 51,

.

Plaintiffs1 response to interrogatory nos. 3, 4, 5.
XIV.

FURTHER DISCOVERY OR MOTIONS

None, save and except for the permission to bring a motion
to reconsider relative to compensatory damages under the
Rehabilitation Act.
XV.

STIPULATIONS

The parties have agreed that the plaintiff's mother will
be

permitted

to testify as

to her perceptions

of

the

plaintiff's emotional upset but will not be permitted to
testify as to any medical condition, despite the fact she is
a psychologist.

The jury will also not be informed that she

is a psychologist.
In light of this stipulation, the defendants will withdraw
exhibit 3 (a).
XVI.

None.

AMENDMENTS/DISMISSALS

XVII.

A.

Counsel are directed to Local Rule 285 regarding the

contents of and the time for filing trial briefs.

B.

Counsel are informed that the court has prepared a

set of standard jury instructions. In general, they cover all
aspects of the trial except those relating to the specific
claims of the complaint. Accordingly, counsel need not prepare
instructions concerning matters within the scope of the
prepared instructions. A copy of the prepared instructions is
given to the parties at the Pretrial Conference.
C.

Counsel are further directedthat their specific jury

instructions shall be filed fourteen (14) calendar days prior
to the date of trial. As to any instructions counsel desires
to offer, they shall be prepared in accordance with Local Rule
163 (b)(1) which provides:

"Two copies of the instructions shall be submitted.
One copy shall be electronically filed as a .pdf
document and shall contain each instruction on a
separate page, numbered and identified as to the
party presenting it. Each instruction shall cite the
decision, statute, ordinance, regulation or other
authority supporting the proposition stated in the
instruction.
The second copy (Trjury
copyTT)
shall be submitted by e-mail
to 1kkorderslcaed.uscourts.qov.

////
26

In addition, counsel shall provide copies of proposed
Corms of verdict, including special verdict forms, at the time

: e proposed jury instructions are filed with the court.
h
D.

It is the duty of counsel to ensure that any

leposition which is to be used at trial has been filed with the
2lerk of the Court.

Counsel are cautioned that a failure to

iischarge this duty may result in the court precluding use of
: e deposition or imposition of such other sanctions as the
h
:ourt deems appropriate.
E.

The parties are ordered to file with the court and

sxchange between themselves not later than one (1) week before
: e trial a statement designating portions of depositions
h
intended to be offered or read into evidence (except for
?ortions to be used only for impeachment or rebuttal).
F.

The parties are ordered to file with the court and

sxchange between themselves not later than one (1) week before
:rial the portions of answers to interrogatories which the
respective parties intend to offer or read into evidence at the
:rial

(except portions to be used only for impeachment or

rebuttal) .
G.

The

court has

extensive audiovisual equipment

wailable. Any counsel contemplating its use shall contact the
2ourtUs Telecommunications Manager, Andre Carrier, at (916)
33 0-4223, at least two weeks in advance of trial to receive the

nppropriate training.
I///

XVIII.

SETTLEaNT NEGOTIATIONS

A Settlement Conference is SET before the Honorable Dale
A. Drozd, United States Magistrate Judge, on January 12, 2012
at 10:OO a.m.

Counsel are directed to submit settlement

conference statements to the settlement judge not later than
seven ( 7 ) days prior to the conference and shall be e-mailed
to:

[e-mail].

At counsel's option, such

statements may be submitted in confidence pursuant to Local
Rule 270 (d).
Each party is directed to have a principal capable of
disposition at the Settlement Conference or to be fully
authorized to settle the matter on any terms and at the
Settlement Conference.
XIX.

TRIAL EXHIBITS

Plaintiff reserves the right to use trial presentation
software.

I

XX.

SEPARATE TRIAL OF ISSUES

None.
XXI.

IMPARTIAL EXPERTS/LIMITATION OF EXPERTS

None.
XXII.

ATTORNEYS' FEES

Plaintiff will seek attorney's fees pursuant to the
statute.
XXIII.

None.

MISCELULNEOUS

DATED: October 7 , 2011.

Case 2:09-cv-01973-LKK -CMK Document 85

Filed 09/19/11 Page 1 of 4

John Ota (SBN 195532)
LAW OFFICES OF JOHN OTA
1720 Broadway
Alameda, CA 94501
T. 510.521.7047
[e-mail]
LAWRENCE A. ORGAN (SBN 175503)
BARBARA E. FIGARI (SBN 251942)
EQUALITY LAWYERS LLP
407 San Anselmo Avenue. Suite 201
San Anselmo, CA 94960
T. 415.453.4740
F. 415.963.4301
lany@e ualitylawyers.com
barbar~equalitylawyeTs.com
-~~

~

~

-

~

->

- ~

~

~

-

Attorneys for Plaintiff ROSLYN G. MCCOY

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
(SACRAMENTO DIVISION)

I

ROSLYN G. McCOY,

CASE NO: 2:09-CV-01973 LKK-CMK

PLAINTIFF ROSLYN McCOY'S
WITNESS LIST

Plaintiff,
V.
S
JOHN MCHUGH, SECRETARY OF
THE ARMY, collectively,

Pretrial Conference: September 6,201 1
Time: 1:30 p.m.
Trial Date: December 6,201 1
Judge: Hon. Lawrence K. Karlton

Defendants.

AWAaWy "A"
PLAINTIFF ROSLYN McCOY'S WITNESS LIST
Case No. 2:OPEV-01973LKK-<

Case 2:09-cv-01973-LKK -CMK Document 85

Filed 09/19/11 Page 2 of 4

Pursuant to Local Rule 281(b)(10) Plaintiff Roslyn McCoy intends to call the following
witnesses at trial:
1. Polly Bambauer

2060 Butte St.
Redding, CA 96001

2. Linda Brown -Employee of Defendant
1325 J Street, Room 840
Sacramento CA, 95814

3 Penelope Cross
1325 J Street, Room 1440
Sacramento, CA 95814

4. Deanna D. Cooper
404 East Lake Street
Mt. Shasta, CA 96067

5. BarbaraDwyer
1325 J Street
Sacramento CA, 95814
6. John Esparza
I

3041 Pebble Beach Circle

I

Fah5eld,

CA 94534

7. Jason Faridi
9707 Almond Wood Drive
i

I

Oakdale, CA 95361
8. Jonathan McCoy

!

404 East Lake Street

)

Mt. Shasta, CA 96067

7

5

9. Lois E. McCoy
1327 Tipperary St.
2
PLAINTTFF ROSLYN McCOY'S WTNESS LIST

Case No. 2 09-CV-01973
WaC-CI

Case 2:09-cv-01973-LKK -CMK Document 85

Filed 09/19/11 Page 3 of 4

Boulder, CO 80303
10. Roslyn McCoy - Plaintiff
404 East Lake Street
Mt. Shasta, CA 96067
11. Debora Richert - Former Chief of Staff, USACOE, Sacramento District
204 Lee Avenue
Fort Meyer, VA 2221 1
12. Katherine E. Sawyer
1325 J Street
Sacramento CA, 95814
13. Arthur R Smith
2100 Bridgeway Boulevard
Sausalito, CA 94965

-

14. Ted Surratt Employee of Defendant
1325 J Street, Room 840
Sacramento CA, 95814
15. Robert Taylor
Last known address:
1325 J Street
Sacramento, CA 95814
16. Helen Warren
Civilian Personnel Management Service
Investigations and Resolutions Division
P.O. Box 135
Roseville, CA 95678
17. Keiko Wilson
1325 J Street
Sacramento. CA 95814

PLAINTIFF ROSLYN McCOY'S WIlXESS LIST

CaseNo. 299-CV-01973 LKK-Ch

Case 2:09-cv-01973-LKK -CMK Document 85

Filed 09/19/11 Page 4 of 4

18. Elaine Woodhall - Employee of Defendant
1325 J Street
Sacramento CA, 95814

Respectfully submitted,

DATED: September 19,201 1

EQUALITY LAWYERS, LLP

/s/Barbara E. Figan

LAWRENCE A. ORGAN, ESQ.
BARBARA E. FIGARI, ESQ.

4
PLAINllF'F ROSLYN McCOY'S WITNESS LIST

Attachment A to Secretary's Pretrial Conference Statement

Linda L. Brown
EEO Manager,
United States Army Corps of Engineers, Sacramento District
1325 J. Street, Room 840
Sacramento, CA 95825
To be contacted through defense counsel only
Debora C. Richert
Formerly Chief of Staff,
United States Army Corps of Engineers, Sacramento District
204 Lee Avenue
Fort Myer, VA 2221 1
To be contacted through defense counsel only
Arthur R. Smith
Formerly Chief of Safety & Occupational Health Office,
United States Armv Corns of Eneineers. Sacramento District
2100 Bridgeway ~bule<ard
Sausalito, CA 94965

-

To be contacted throueh defense counsel only
Ted D.Surratt
Formerly Human Resources Specialist, Civilian Human Resources Agency,
United States Army Corps of Engineers, South Pacific Division-Civihan Personnel
Advisory Center
Current contact information to be determined
To be contacted through defense counsel only
Larry Rinetti
Formerly Supervisory Human Resources Specialist
Civilian Human Resources A ency,
United States Army Corps of ngneers, South Pacific Division-Civilian Personnel
Advisory Center
Current contact information to be detennined

i

To be contacted through defense counsel only
Barbara Dwyer
1325 J. Street, Room 840
Sacramento, CA 95825
Susan Bayless
United States Army Corps of Engineers, Sacramento District
1325 J. Street
Sacramento, CA 95825
To be contacted through defense counsel only
1

Attachment A to Secretary's Pretrial Conference Statement
lproposed Witness List]

A ' r u m m c "E"

8.

Roslyn McCoy
Plaintiff
404 East Lake Street
Mt. Shasta, CA 96067

2

Attachment A to Secretary's Pretrial Conference Statement
[Proposed Witness List]

Case 2:OQ-cv-01973-LKK -CMK Document 84

Filed 0911911 1 Page Iof 6

I

1 John Ota (SBN 195532)
LAW OFFICES or JOHN om
OF Jam OTA
2 1720 Broadway
Alameda, CA 94501
3 T. 510.521 -7047
510.521.7047
[e-mail]
4
LAWRENCE A. ORGAN (SBN 175503)
5 BARBARA E. FIGARI (SBN 25 1942)
EQUALITY LAWYERS LLP
6 407 San Anselmo Avenue, Suite 201
San Anselmo, CA 94960
7 T. 415.453.4740
F. 415.963.4301
8 [e-mail]
[e-mail]

I

0

I

Attorneys for Plaintiff ROSLYN G. MCCOY

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNLA
(SACRAMENTO DIVISION)

1

ROSLYN G. McCOY.

CASE NO: 2:09-CV-01973 LKK-CMK

PLAINTIFF ROSLYN McCOY'S
EXHIBIT LIST

Plaintiff,
VS.

JOHN MCHUGH, SECRETARY OF
THE ARMY, collectively,

Pretrial Conference: October 3,201 1
Time: 1:30 p.m.
Trial Date: December 6,201 1
Judge: Hon. Lawrence K.Karlton

Defendants.

A l l x c m p 'C'
PLA[NTIPF ROSLYN McCOY'S EXHIBIT LIST
Case No. 2:09-CV01973
LKK4

Case 2:09-cv-01973-LKK -CMK Document 84

Filed 09/19/11 Page 2 of 6

PLAINTIFF ROSLYN McCOY'S EXHIBIT LIST
Case No. 2:09CVJJIT73LKKEM

Case 2:09-cv-01973-LKK -CMK Document 84

Filed 09119111 Page 3 of 6

3
PLAINTIFF ROSLYN McCOY'S EXHIBIT LIST
Case No 209-CV01973LKK-CM

Case 2:09-cv-01973-LKK -CMK Document 84

Ii
1-

I
42
43
44
45
46

I

47
49
50
51
52
56
57

58
59
60
61
62
63
64
65
66

I

Filed 09/19/11 Page 4 of 6

2006
Ernail chain between Plaintiff and Frederick Rover.
Subject: requesting upgrade dared July 19,2006
Email from Plaintiff 10 Frederick Royer. Subject:
grammar checker accommodation. Dated August 28,
2006
Handwritten Notes marked: "Roslyn 2 May 0950
Letter from Plaintiff to EEOICivil Rights Office
dated October 5,2009
Email &om Sandra L. Olivares to Plaintiff, Kenneth
Manning, Carl Koman dated February 20,2009
Photoeravhs of 1325 J Street Sacramento. CA and
adjacent parking lot.
Email from Merle Heard to Linda Brown dated

-

I

I
I

No Bates Number
No Bates Number
USACOEOO94
No Bates Number
No Bates Number

A

No Bates Number

USACOE-0298
USACOE-1338
Memorandum For Record dated 12 June 2006
USACOE-1341-43
Memorandum for Record Dated 21 April 2006
Notice of Termination and Accompanying
USACOE-1461 - 1470
Documentation (signed versions)
Relevant Excerpts of Anny Regulation 690-600
- Civilian personn~l
Equal Employment Opportunity
No Bates Number
Discrimination Complaints
Pertinent Agency and Local Guidelines Concerning
Excepted Appointments Under the Authority
No Bates Number
Supporting Complainant's Appointment.
Pertinent Agency and Local Guidelines Regarding
Disciplinary and Adverse Actions in Effect at the
No Bates Number
time of the Action at Issue
A.R. Smith Declaration &om EEO Investigation and
ernail to A.R. Smith from Marie Robichau Subject:
Draft - Declaration for the Investigation on Ms.
No Bates Number
Roslyn McCoy
Ted Surratt Declaration from EEO Investigation and
email to Ted Surratt from Marie Robichau Subject:
No Bates Number
Formal EEO Investigation -Ms. Roslyn ~ c d o y
No Bates Number
Flow Chart of EEO Complaint Process
No Bates Number
Plaintiffs Delta Dental Policy Information
RM793 - 800; 802 806; 810- 838
Plaintiffs Dental Bills
RM0659 - 694
Plaintiffs Plan to Achieve Self-Support
Plaintiffs Business Plan for Social Security
RM0644 - 658
Administration
Job Description County of Siskiyou Behavioral
RM0701
Health Clinician UII
Job Description Behavioral Health Services
RMQ702 - 705
Specialist II
4
PLAINTIFF ROSLYN McCOY'S EXHIBIT LIST
CaseNo. 2.09-CV.01973LKK-C

Case 2:09-cv-01973-LKK -CMK Document 84

Filed 09/19/11 Page 5 of 6

1
1

N
1
1
/I

N

N
5
PLAINTIFF ROSLYN McCOY'S EXHIBIT LIST
Case No. 2:09-CV41973LKK-C

Case 209-cv-01973-LKK -CMK Document 84

Filed 09/19/11 Page 6 of 6

Plaintiff reserves the right to introduce as exhibits any exhibits not listed here but that appear

n Defendant's exhibit list.

Respectfully submitted,
)ATED: September 19,201 1

EQUALITY LAWYERS, LLP

/s/ Barbara E. Figari

LAWRENCE A. ORGAN, ESQ.
BARBARA E. FIGARI, ESQ.

6
PLAINTIFF ROSLYN McCOY'S EXHIBIT LIST
Case No. 2:0rCV.01973 LKK-CM

Attachment B to Secretary's Pretrial Conference Statement
Secretary's Proposed Exhibit List

1

Attachment B to Secretary's Pretrial Conference Statement
[Proposed Exhibit List]

ATrAamEm "D''

\

2

Attachment B to Secretary's Pretrial Conference Statement
[Proposed Exbibit List]

14A.

Email correspondence between Roslyn
McCoy and Linda Brown, May 22,
2006

USACOE-0981

15A.

Email correspondence between Linda
Brown, Deborah Richert, and Barbara
Dwyer, May 19,2006

USACOE-01005- 1006

16A.

Email correspondence beteen Linda
Brown and Roslyn McCoy, May 22,
2006

USACOE-0985-86

17A.

Email correspondence between Linda
Brown and Roslyn McCoy, June 26,
2006

USACOE-1050-52

18A.

Email correspondence between Linda
Brown and Tony Coepland, June 26,
2006

USACOE-1053-55

19A.

Email correspondence between Linda
Brown, Susan Ba less, and Roslyn
McCoy, July 10, 006

USACOE-1096-97

Email correspondence between Linda

USACOE-1127

1

20A.

3

W

Attachment B to Secretary's Pretrial Conference Statement
[Proposed Exhibit List]

4

Attachment B to Secretaty's Pretrial Conference Statement
[Proposed Exhibit List]