Freeman v. Barnhart et al

Filing 162

ORDER on Objections to Redacted Exhibits. Signed by Judge Jeffrey S. White on December 5, 2008. (jswlc1, COURT STAFF) (Filed on 12/5/2008)

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MARY DRYOVAGE (California Bar No. 112551) Law Offices of Mary Dryovage 600 Harrison Street, Suite 120 San Francisco, CA 94107 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorney for Plaintiff KIMBERLY FREEMAN JOSEPH P. RUSSONIELLO (California Bar No. 44332) United States Attorney JOANN M. SWANSON (California Bar No. 88143) Chief, Civil Division CLAIRE T. CORMIER (California Bar No. 154364) Assistant United States Attorney JENNIFER S. WANG (California Bar No. 233155) Assistant United States Attorney 150 Almaden Boulevard, Suite 900 San Jose, California 95113 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorneys for Defendant MICHAEL J. ASTRUE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION KIMBERLY FREEMAN, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 06-4900 JSW REVISED JOINT EXHIBIT LIST WITH OBJECTIONS AND RESPONSES TO OBJECTIONS ; ORDER RE OBJECTIONS Trial Date: December 8, 2008 Courtroom: 2, 17th Floor Hon. Jeffrey S. White

Pursuant to Rule 16 of the Federal Rules of Civil Procedure, the Guidelines for Trial and Final Pretrial Conference in Civil Jury Cases Before the Honorable Jeffrey S. White, and the Court's instructions at the pretrial conference, and the Order on Objections filed December 2, 2008 (CR 151), the parties submit the attached Revised Joint Exhibit List.

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Exhibits 1 through 100 are offered by plaintiff, though some of the stipulated exhibits 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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were jointly offered by both parties. Exhibits 101 to 200 are offered by defendant. . Objections and responses to objections are noted. Plaintiff acknowledges that the court has ruled that the evidence on certain issues has been excluded and wishes to preserve the issues for appeal.

Respectfully submitted, FOR THE PLAINTIFF: Law Offices of Mary Dryovage Dated: December 4, 2008 ________________________________ MARY DRYOVAGE FOR THE DEFENDANT JOSEPH P. RUSSONIELLO United States Attorney Dated: December 4, 2008 ________________________________ CLAIRE T. CORMIER Assistant United States Attorney

Exh. No. 1

Description/ Bates Nos./Sponsoring Witness(es) Timeline - Freeman v. Astrue Defendant's Discovery Responses

Objection or Stipulation 401, 403, 801, Def. Motion In Limine No. 2 401, 403, Def. Motion In Limine No. 2; See also objections stated in the document 401, 403, Def. Motion In Limine No. 1, 2; See also objections stated in the document 401, 403, Def. Motion In Limine No. 2; See also objections stated in the document; No verification attached 401, 403; See also objections stated in the document

Response 402, 801(d)(1) A & B, 801(d)(2) A, B, C, D 402, 801(d)(1) A & B, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 801(d)(1) A & B, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 801(d)(1) A & B, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 801(d)(1) A & B, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 801(d)(1) A & B, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 801(d)(1) A & B, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805

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2

Defendant's Objections and Responses to Plaintiff's First Set of Request for Production, dated June 25, 2007. Defendant's Objections and Responses to Plaintiff's First Set of Request for Admission, dated June 25, 2007. Defendant's Responses to Plaintiff's First Set of Interrogatories, dated August 22, 2007. Defendant's Objections and Responses to Plaintiff's Second Set of Request for Production, dated November 23, 2007. Defendant's Objections and Responses to Plaintiff's Second Set of Request for Admission, dated November 23, 2007. Defendant's Responses to Plaintiff's Second Set of Interrogatories, dated November 23, 2007.

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3

RR O RR O S

4

5

6

401, 403, Def. Motion In Limine No. 2; See also objections stated in the document 401, 403, Def. Motion In Limine No. 2; See also objections stated in the document; No verification attached

RR O RR S

7

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8

Defendant's Initial Disclosures, dated

403

402, 801(d)(1) A & B, 801(d)(2) A, B, C, D,803(6), (7),(8), (10), 804(1), (3), 805 402, 801(d)(1) A & B, 801(d)(2) A, B, C, D,803(6), (7),(8), (10), 804(1), (3), 805

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9

Defendant's Supplemental Disclosures and Discovery Responses, dated October 30, 2007. Appointment of Kimberly Freeman in FCIP

403

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Application for Federal Employment [SSA 0246-0253] Freeman Form 50-B, Notification of Personnel Action, Executive Appointment, September 10, 2003 [SSA 0236] Freeman SSA FCIP Statement of Understanding, dated September 15, 2005 signed by Freeman; SSA0241; Freeman Individual Development Plan for FCIP Participant San Francisco Region [SSA 0242-0245] Freeman SSA Fresno District Office Performance SSA Fresno District Office Work Unit Log for May 2004 Title II Systems Processing Schedule for June 2004 [SSA 0191-0192] Relationship of Affiants, Fresno District Office [SSA 0066] Position Description, GS-962-8 Service Representative, amended February 11, 2003 [SSA 0156-0161]

Stipulated Defendant will stipulate if salary information is redacted. Such information relates only to a bench issue. Stipulated 402, 801(d)(1) A & B, 801 (d) (2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805, Best Evidence Rule. O

12

13

Stipulated

14

Authentication, 401, 403

402, 801(d)(1) A & B, 801(d)(2) A, B, C, D [Sylvia Norman]

15 16 17

Stipulated Stipulated as redacted Stipulated Stipulated

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18

Trainee Evaluation Form for Freeman, 1/13/04 [SSA0167-0171]; Freeman, Corneliuz Termination

Stipulated

19

June 2004 documents re Harris complaint [SSA0564-567] Keag, Currey 6/30/04 email, attaching 6/16/04 email from Currey to Singer and Summers [SSA0291] Currey, Singer, Summers Termination of Appointment letter to Kimberly Freeman from Bobbie Summers, dated July 9, 2004 [ SSA 0271-0272] Freeman, Summers, Thompson Form 50-B Notification of Personnel Act, dated July 26, 2004 [SSA 0174] Freeman

Stipulated

20

Stipulated

21

Stipulated

22

Defendant will stipulate if salary information is redacted. Such information relates only to a bench issue.

402, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805. Salary information is relevant to show plaintiff is similarly situated to Galan. Best Evidence Rule. This evidence is offered to show that SSA failed to follow the federal regs and refused to process the EEO complaint and to refute defendant's affirmative defense that it would have taken the same action. 402, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805

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Efforts to Exhaust Administrative Remedies

Because Defendant does not contest that plaintiff exhausted administrative remedies, documents on that subject are irrelevant.

23

E-mail sent to and from Scott Incardona to and from Sylvia Norman re: EEO Counseling for Freeman, dated July 23, 26, 29, August 18, 24 and 25, 2004 [not in ROI]

401, 403, 801

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24

E-mail from Sandra Knox to Sylvia Norman, dated August 4, 2004 [SSA 0270] Knox, Norman Letter to Senator Feinstein from Kimberly Freeman, dated August 20, 2004 [SSA 0268-0269] Letter to Peter D. Spencer from Senator Feinstein, dated September 7, 2004 [SSA 0267] Letter to Senator Feinstein from Peter D. Spencer, dated October 4, 2004 [SSA 0266]

801

402, 612, 613, 801(d)(2) C

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25

401, 403, 801. Post-termination Congressional correspondence is irrelevant to whether the termination was discriminatory. 401, 403, 801. Post-termination Congressional correspondence is irrelevant to whether the termination was discriminatory. 401, 403, 801. Post-termination Congressional correspondence is irrelevant to whether the termination was discriminatory. The manner of the investigation into plaintiff's claims is not relevant to the question of why she was terminated. Defendant thus objects to many of the exhibits in this section. 401, 403, 801, 1002; Def. Motion In Limine No. 2 401, 403, 801

402, 801(c)

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402, 801(d)(2) A, B, C, D

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27

402, 612, 613, 801(c)

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Informal EEO Counseling

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SSA EEO Counseling Report from Jim Buyck, dated November 1, 2004 [SSA 0036-0045, 0054-0056] Formal Discrimination Complaint Filing Form, dated December 10, 2004 [SSA 0016]

402, 801(d)(2) A, B, C, D, 803 (1), (2), (3), (5), (6), (7),(8), (10), 804(1), (3), 805 402, 801(d)(2) A, B, C, D,803(6), (7),(8), (10), 804(1), (3), 805

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29

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30

Memorandum from Paula Singer to Jim Buyck re: management rebuttal to complaint, including statements from Ms. Singer, Ms. Curry, Mr. Corneliuz and Ms. Summers dated December 21, 2004 [SSA 0046-0053]

Portions of this exhibit offered by defendant as Ex. 102 and 103, and a portion is offered by plaintiff as Ex. 32. Defendant would not object to the use of the original memoranda from Currey, Summers, Singer, and Corneliuz that are incorporated into Exhibit 30, but defendant objects to this exhibit in its entirety under 801, 1002. Stipulated

402, 612, 613, 801(d)(1) A & B, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805, Relevant to show motive, intent, pretext, scheme, pattern, lack of legitimate justification.

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31

Reports of Contact by Corneliuz; [SSA0573-575] Corneliuz Notes on Kim Freeman by Corneliuz; [SSA0255-0256] Corneliuz Individual EEO Discrimination Complaint Form, dated January 14, 2005 [SSA 0015] Freeman

32 33

Stipulated 401, 403, 801 402, 612, 613, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805. Relevant to show motive, intent, pretext, scheme, pattern, lack of legitimate justification. 402, 612, 613, 801(c) S 401, 403, Def. Motion In Limine No. 2 The ruling on defendant's Motion In Limine No. 5 should bar documents on this subject. 401, 403, 801, Def. Motion In Limine No. 5 402, 612, 613, 801(d)(1) A & B, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 S 402, 801(c) S

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34

Letter to Director Civil Rights and Equal Opportunity, dated January 14, 2005 [SSA 0017] Freeman Letter to Sylvia Norman dated January 31, 2005 [SSA 0021-0023] Norman Preservation of Documents

401, 403, 801

35

36

E-mail to Paula Singer, Bobbie Summers from Sylvia Norman, dated July 16, 2004 re: Fresno Document Request for Information - Freeman Termination [Norman Ex. 2] Norman

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37

Memorandum from Bobbie Summers to Sylvia Norman, dated July 27, 2004 re: Information Request dated July 15, 2004 Kimberly Freeman (Termination) [Norman Ex.1 ] Norman E-mail to Paula Singer, Bobbie Summers from Sylvia Norman, dated July 30, 2004 re: Freeman: Response to Information Request. [Norman Ex. 3] Norman Letter to Pete Spencer, Regional Commissioner, dated September 9, 2004 [SSA 0283] Norman Investigators Discovery Requests to SSA

401, 403, 801, Def. Motion In Limine No. 5

402, 612, 613, 801(d)(1) A & B, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 612, 613, 801(d)(1) A & B, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 612, 613, 801(d)(2) A, B, C, D This evidence goes to the central issues before the jury, namely motive, intent, pretext, lack of legitimate justification, as well as defendant's affirmative defense that they would have taken the same action. 402, 612, 613, 801(d)(1) A & B, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 612, 613, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 612, 613, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805

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401, 403, 801, Def. Motion In Limine No. 5

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39

401, 403, 801

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The manner of the investigation into plaintiff's claims is not relevant to the question of why she was terminated. Defendant thus objects to many of the exhibits in this section. In addition, the ruling on defendant's Motion In Limine No. 5 should bar many of these exhibits. 401, 403, 801, Def. Motion In Limine No. 5

40

Document and Data Request for Kimberly Freeman [SSA 0211-0212] Williams, Campbell Letter to Janice Campbell from Isaac Williams, Manager, CREO [SSA 0214] Report of Investigation (ROI) - Kimberly Freeman, Case No. 05-0102-SSA dated August 1, 2005 ­ EEO Counseling Report [SSA 0036-0065] Document Tampering

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401, 403, 801, Def. Motion In Limine No. 5 401, 403, 801, 1002, Def. Motion In Limine No. 2

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42

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The ruling on Defendant's Motion In Limine No. 4 should bar exhibits on this subject.

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43

Declaration of Noel P. Riggins, signed and dated July 28, 2005 [not in ROI] Declaration of Noel P. Riggins, [unsigned]

401, 403, 801, Def. Motion In Limine No. 2 401, 403, 801, 1002, Def. Motion In Limine No. 2, 4 401, 403, 801, Def. Motion In Limine No. 2

402, 612, 613, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 612, 613, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 612, 613, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805. Relevant to show motive, intent, pretext, scheme, pattern, lack of legitimate justification. 402, 612, 613, 801(d)(2) A, B, C, D

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44

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45

EEO Complaints filed by employees in the Fresno Office during the period 2001-2004 [SSA 0499]

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46

Memo to file from EEO Investigator Janice Campbell, re: Complainant's rebuttal affidavit dated July 28, 2005 [SSA 02170218] Transmittal letter to Riggins from Campbell dated June 28, 2005 [SSA 0220-0221] Riggins, Campbell Transmittal letter to Galan from Campbell dated July 19, 2005 [SSA 0222-0223] Galan, Campbell Letter to Sylvia Norman from EEO Investigator Janice Campbell, dated July 28, 2005 [SSA 0219] Norman Affidavit of Vicky Curry [SSA 0103-0112] Affidavit of Bobbie Summers [SSA 01130121] Affidavit of Paula Singer [SSA 0122-0129]

401, 403, 801

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47

401, 403, 801, Def. Motion In Limine No. 4 401, 403, 801

402, 612, 613, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 612, 613, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 612, 613, 801(d)(2) A, B, C, D

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48

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49

401, 403, 801

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50 51 52

Stipulated as redacted Stipulated as redacted Stipulated as redacted

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53

Affidavit of Sandra Knox [SSA 0130-0133]

801, Def. Motion In Limine No. 2

612, 613, 801(d)(2) A, B, C, 803(5), (7),(8), (10), 804(1), (3), 805 D 612, 613, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805

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Affidavit of Teresa Galan [SSA 0134-0138]

801

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55

Map of Fresno SSA office (Singer Depo. Ex. 1); Freeman, Norman, Riggins, Currey, Summers, Singer Paula Singer's Application for Leave [SSA 0673-0676]

Stipulated

56

401, 403

402, 612, 613, 801(d)(1) A & B, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805

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Statistical Evidence and Workforce Profile 57 E-mail from CREO to EEO Investigator, dated July 18, 2005 [SSA 0175-0178] Fresno District Office Workforce Data - 2 page document (Exhibit 5 in Paula Singer's deposition) [SSA 0067-0068] SSA Policies and Procedures 59 President Clinton's Executive Order 13162 re: Federal Career Intern Program, July 6, 2000 [SSA 0193-0194] Norman, Freeman SSA OCREO Policy for the Prevention and Elimination of Harassment in the Workplace [SSA 0358-0361] Norman, Freeman Stipulated 401, 403, 801, Def. Motion In Limine No. 2 401 402, 612, 613, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805 402, 612, 613, 803(6), (7),(8), (10), 804(1), (3), 805 S

58

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60

401, 403. This document regarding harassment policies is irrelevant to this case, which is not a harassment case.

402, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805

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61

SSA CREO Discrimination Complaint Process, SSA 437 [SSA 0380-0382] Norman, Freeman

401, 403

402, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805. Relevant to show that the defendant violated their own rules and to show motive, intent, pretext, scheme, pattern, lack of legitimate justification.

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SSA Personnel Policy Manual re: SSA Federal Career Intern Program [SSA 01780186] [SSA 0383-396] Norman, Freeman SSA Policy Against Discrimination [SSA0407-415] Singer, Summers, Currey, Korn, Higdon; Jew Affidavit of Scott Foster, Lead Human Resources Specialist GS 13 [SSA 01510154] Excerpts from Annual Personnel Reminders, August 2002 [SSA 0300-0357] Norman, Freeman The Social Security Administration's Policy Prohibited Discrimination Against Employees and Applicants for Employment [SSA 0429-0436] Norman Discriminatory Treatment of CoWorkers

Stipulated

63

Stipulated

64

Stipulated

65

Stipulated

66

Withdrawn

67

Resignation Letter from Quiona Jamison, dated November 17, 2003 [SSA 0579-0580] Jamison

Stipulated

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68

ROI - Noel P. Riggins, Case No. 05-0048SSA, dated July 5, 2005 Declaration of Paula Nanette Singer, dated July 1, 2005

401, 403, Def. Motion In Limine No. 1 and 2.

402, 612, 613, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805. Relevant to show motive, intent, pretext, scheme, pattern, lack of legitimate justification. 402, 612, 613, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805. Relevant to show motive, intent, pretext, scheme, pattern, lack of legitimate justification. AGREE

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69

Letter from Mark Anderson re: Case No. SF-07-2125-SSA, dated November 15, 2007 [SSA 0599-0600]

401, 403, 801, Def. Motion In Limine No. 1 and 2.

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Damages 70 Record of Leave Data for Kimberly Freeman, dated Sept. 14, 2004 [SSA 02240225] Freeman Expert Report of Sally White, CPA, CVA, dated November 29, 2007 White Form 50-B, Conversion to Career Conditional Appointment, dated August 31, 2005 [SSA 0298-0299] Galan 401. Relates only to bench issue of back pay 401. Relates only to bench issue of back pay Defendant will stipulate if salary information is redacted. Such information relates only to a bench issue.

71 72

AGREE 402, 612, 613, 801(d)(2) A, B, C, D, 803(6), (7),(8), (10), 804(1), (3), 805. Best Evidence Rule. Relevant to show that Galan is "similarly situated" to plaintiff. O

Defendant's Exhibits 101 102 103 Trainee Evaluation Form for Galan, 1/13/04 [SSA0568-572] Corneliuz, Galan 12/15/04 memo from Summers to Singer re Freeman [SSA0257-258]; Summers, Singer 12/22/04 memo from Currey to Singer re Freeman [SSA0259-261] Currey, Singer Stipulated Stipulated Stipulated

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104

Map of Fresno SSA office (Unmarked version of the map - Ex. 55); Currey, Summers, Singer

Stipulated

Defendant withdraws the following exhibits in light of the ruling on Defendant's Motion In Limine No. 4 105 Transmittal letter to Riggins from Campbell [SSA0220Withdrawn 221] Riggins 106 Page from Report of Investigation re attempts to collect affidavits [SSA0010] Jew Withdrawn

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Dated: December 5, 2008

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