DECLARATION OF AUDREY A. IVANCIE IN SUPPORT REPLY TO DEFENDANTS MOTION FOR SUMMARY JUDGEMENT Part 1(August 22, 2013) –from earlier

 

                                            IN THE CIRCUIT COURT OF THE STATE OREGON

FOR THE COUNTY OF MULTNOMAH

 

 

Audrey Ivancie,      PLAINTIFF, vs. THE OREGONIAN PUBLISHING COMPANY, Elizabeth Vineyard, Dave Guilard, Kevin Denny   DEFENDANTS,

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Case No. 1207-09344 ________________________ DECLARATION OF AUDREY A. IVANCIE IN SUPPORT REPLY TO DEFENDANTS MOTION FOR SUMMARY JUDGEMENT

I, Audrey A. Ivancie, do hereby declare:

1. I am the plaintiff, pro se, in the above matter.
2. I have personal knowledge of all facts and statements contained herein, and I am competent to testify thereto.
3. I am making this Declaration to clarify, supplement, and incorporate facts to my Reply to Defendants Motion for Summary Judgment
4. The Defendants practiced regular discriminatory practices by giving women less: leads, sales opportunities, promotions, and department recognition.
5. Attached to this Declaration as Exhibit 1, a true and correct copy of excerpts from the Deposition of Audrey Ivancie taken on behalf of the defendants Wednesday, May 29, 2013.
6. Attached to this Declaration as Exhibit 2, is a true and correct copy of excerpt from the Plaintiff’s Affidavit in Support of her Motion for Summary Judgment from August 22, 2012.
7. Attached to this Declaration as Exhibit 3, is a true and correct copy of excerpts of telephone interview between Audrey Ivancie and Brandy Pyrtle, senior investigator for the Bureau of Labor and Industries transcript September 21, 2012 from  December 2011 interview.. The statements made in the BOLI interview are true and correct
8. Attached to this Declaration as Exhibit 4, is a true and correct copy of excerpt pages from the Liberation User Guide Manual provided to the Plaintiff, by the Defendants in discovery.
9. Attached to this Declaration as Exhibit 5, a true and correct copy of excerpt pages from the Liberation public business website.
10. Attached to this Declaration as Exhibit 6, a true and correct copy of  the Plaintiff Employee of the Month recognition card from December 2010, signed by Defendant Denny and nomination card from a Michael Thompson, a co-worker.
11. Attached to this Declaration as Exhibit 7, a true and correct copy of  a memo titled, final written warning given to plaintiff June 8, 2010 prior to becoming employee of the month.
12. Attached to this Declaration as Exhibit 8, are true and correct copies of Plaintiff’s time cards from week ending June 12, 2010 and December 12, 2006.
13. Attached to this Declaration as Exhibit 9, a true and correct copy of Plaintiff’s forged time card by the defendants from week ending March 26, 2011.
14. Attached to this Declaration as Exhibit 10, a true and correct copy of affidavit in support of plaintiff motion for summary judgment by Kevin Sullivan November, 16 2012.
15. Attached to this Declaration as Exhibit 11, a true and correct copy of Plaintiff’s first 401k withdraw from T. Rowe Price for $3,000 coordinated through Oregonian Human Resources February 17, 2011.
16. Attached to this Declaration as Exhibit 12, are a true and correct copy of Defendant Vineyard Declaration Exhibits marked page 1, 2, 3)
17. This Motion should be held in advance because plaintiff is still awaiting this document from defendants.
18. Witnesses will verify this claim at trial.
19. The Defendants abusive and repeat actions towards me caused:
    1. emotional distress;
    2. acute embarrassment by berating me and using sexist remarks about my weight and appearance in front of co-workers;
    3. increased my anxiety;
    4. gave me depression;
    5. resulted in loss of wages;
    6. gastrointestinal problems, and hives, and physical complications and injury;
    7. me to leave work to recuperate from the abuse;
    8. me to take my paid time off (PTO) to supplement lost income;
    9. seek medical attention for stress related issues

 

1. Defendants gave me false and burned leads that:
   1. used celebrity aliases Aristole and Britney Spears.
   2. They gave me harassing callers that called me abusive names “telemarketer,” quoted Shakespeare during my sales pitch to them.

                 c. warned me not to get a catscan after I stated to that person I was allergic to    

           newsprint too, but read it anyway and they should still take a newspaper   

           subscription.

1. asked me esoteric questions to block my ability to sell them a newspaper subscription and entrap me in less than professional conversation.
2.  were leads of active subscribers and repeat customers that has recently told me or my co-workers they had just been contacted by the Oregonian and aren’t interested.
3. Were mixed with good leads so, that I would have to start my sales pitch and essentially wait to be harassed or challenged by a caller or that that call resulted in a sale.
4. Stated they would buy a subscription from me, but said no to the person who verified my sales for credit after I had transferred them to the verification department.

 

1.  Defendants Guilard and Vineyard strictly monitored my sales calls daily after I made a wage complaint in January 2011. This practice, was never generally exercised until them because we were all seasoned sales people and we had a verification process to check viable sales.
2. I was hired in 2004 and recognized by the Oregonian job Pledge as a full time employee. Defendant Denny had told me in over three Circulation meetings that I was protected under the job Pledge.
3. Attached to this Declaration as Exhibit 13, are a true and correct copy of Plaintiff Order Production sheets from 2008 versus 2011 showing wage manipulations and a dramatic reduction in wages and commissions.
4.  I had to take additional jobs at Origins cosmetics, DJed at local clubs, play in a band for extra money as seek employment elsewhere to try to stabilize my income
5.  Two Women were transferred and three women were fired from their jobs after they complained about dialer manipulations/ and or low wages during a three month period. No men were transferred or fired during this time.
6. I was approved for a medical leave by supervisor Vineyard March 18, 2011 that continued through March 25, 2011 until I was terminated over the telephone.

 

I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand that it is made for use as evidence in court and subject to penalty for perjury.

 

SIGNED this date August 22, 2013 by:

                                                                         __________________________________

                                                                                   Audrey A. Ivancie –Plaintiff Pro Se

DECLARATION OF AUDREY A. IVANCIE IN SUPPORT OF SANCTIONS AGAINST DEFENDANTS FOR FAILURE TO DELIVER COURT-ORDERED DISCOVERY (September 30, 2013)

IN THE CIRCUIT COURT OF THE STATE OREGON

              IN THE COUNTY OF MULTNOMAH

 

Audrey Ivancie, Plaintiff, vs.  THE OREGONIAN PUBLISHING COMPANY, Elizabeth Vineyard, Dave Guilard, Kevin Denny   Defendants,

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Case No. 1207-09344 ________________________   DECLARATION OF AUDREY A. IVANCIE IN SUPPORT OF SANCTIONS AGAINST Defendants FOR FAILURE TO DELIVER COURT-ORDERED Discovery

 

I, Audrey A. Ivancie, do hereby declare:

1.)   I am the Plaintiff, pro se, in the above matter

2.)   I have personal knowledge of all facts and statements contained herein, and I am     competent to testify thereto

3.)   I am making this declaration to support sanctions against the Defendants for fa

ilure to  provide court-ordered Discovery even up to their last ordered delivery, August 18, 2013.

4.)   I have firsthand knowledge and inside information about the quality of the documents that were ordered to be delivered in Discovery, because they are familiar documents I used, and were in use, while I was an employee at the Oregonian

5.)   August 23, 2013 the court Ordered the following documents to be provided to the Plaintiff in Discovery.

6.)  (1) Documents related to lawsuits, BOLI Complaints, or EEOC Complaints filed by Inside Sales employees between 2004 and 2011;

7.)   Defendants’ provided one BOLI complaint and forms for the Plaintiff to received public record release. No other information was addressed or provided.

 8.)  (2) Documents related to formal or informal complaints raised by Inside Sales employees alleging gender discrimination, manipulation of the call system,and/or distribution of sales calls and leads between 2004 and 2011;

  9.)   Defendants’ provided no formal or informal complaints raised by Inside Sales Agents, although many had been documented and discussed and supported in Plaintiff Declarations and Affidavits from her earlier pleadings. Defendants deny groupwise email sexist, and have stated they have since moved to an alternative Outlook email system.

10.)  (3) Documents related to how Paid Time Off (PTO) was calculated for Inside Sales employees between 2004 and 2011, including but not limited to the PTO matrices calculation formula and documents showing the hourly PTO value per week for each agent;

11.)   Defendants’ provided documents that do not accurately measure PTO hourly awards and result in illogical numbers that don’t match the provide results. Nor, did they provide calculation method to determine the discrepancy of the Plaintiff missing and expect PTO that was her wage complaint. Judge stated because Defense has failed to provide this information accurately it can be inferred that they are hiding something.

 12.)  (4) Any employee handbook applicable to and/or distributed to Inside Sales employee between 2004 and 2011; and

 13.)   Defendants’ did not provide an employee handbook, and state that there is no handbook. The court has stated at trial if Plaintiff can produce her employee handbook, their testimony will be discredited to a jury.

 14.)  (5) Order Production Sheets for all Inside Sales employees from 2004 through 2011, including all of the data on these documents, except that Defendants shall redact only and exclusively any social security numbers included in these documents.

 15.)   Defendants have continued to provide incomplete Order Production sheets, after conferring and giving samples of complete Order Production sheets. Judge Rees toldDefense Counsel that they must submit to him in writing why they had failed to produce these documents they had promised the Plaintiff. Defense stated they overlooked a disc that contains this information. The following day Defense produces a disc made in the yearY2k to the Plaintiff. The Plaintiff examined the disc and found it to be incomplete, stillmissing the specific fields they were ordered to provide, and was provided in an alien format and to the tune of 36,000 documents, for what should have been less than 8,000, 1 day before Defense scheduled Motion For Summary Judgment. Judge Postpones Defenses’ Motion for Summary Judgment hearing because they just produce over 36,000 documents the day before the hearing.

16.)  (6) Agent Summary Sheets for all Inside Sales employees from 2004 through 2011,including all of the data on these documents, except that Defendants shall redact and social security numbers included in these documents.

17.)   Defendants’ have continued to provide agent summary sheets incomplete. September 19, 2013 Judge instructs the Plaintiff to show the Defense Counsel the missing data,   required, that defense has still failed to produce. Plaintiff shows Defense Counsel with exhibits, that the agent summary sheets provided do not account for all hours the agents worked and they are with blank spaces for the missing data.

18.)   (7) Sales sheets or other summary documents posted on the wall to show sales byagent or date from 2004 to 2001. If such documents were destroyed or discarded, Defendants shall explain when and why such documents were destroyed or discarded.

19.)   Defense Counsel had stated to the Plaintiff that these sales sheets and wall posting“horse-racing sheets” had all been discarded. However, Plaintiff later received after 2motions to compel years of these sheets, but with missing data, employees, consecutive months that should have been represented and missing over three years of figures. They never explain what happened to the years missing, whether destroyed or discard and or why.

20.)   Plaintiff makes this declaration to clarify and account for defense failures in Discovery, and their discount of judicial orders to compel documents.

21.)   Defendants’ failed to provide Court Ordered Discovery and should be sanctioned by dismissal of their entire pleadings and directives given by the court to instruct jury to infer evidence missing as evidence of transgressions by the Defendants.

22.)   Plaintiff can infer the information being withheld by the Defendants is cause toshow that they are intentionally covering their transgressions to prevent the Plaintiff from supporting her claim and elements.

I hereby declare that the above statements are true to the best of my knowledge and belief, and that I understand that it is made for use as evidence in court and subject to penalty for perjury.      SIGNED this date September 30 ,2013 by            

 

_____________________________

 Audrey A. Ivancie –Plaintiff Pro Se

                                                

Letter to Judge for Motion for an extention because of Defenses discovery failures September 25, 2013

Audrey Ivancie                                                                                            9-25-2013

Portland, OR 97209

 RE: Oregonian et, al V. Ivancie Case No.1207-09344

Deborah Spencer
Judicial Assistant
Honorable David F. Rees
Multnomah County Circuit Court
1021 SW 4th Avenue, Room 732/734
Portland, OR 97204

Hello Ms. Spencer and Honorable Judge Rees,

Good morning. I filed a Motion for an Extension on date of Defendants’ Motion for Summary Judgment Hearing , earlier today because I have just filed a leave to Amend Plaintiff’s Complaint, yesterday.

 I am asking the court to set out the date(extend) for Defendants Motion for Summary Judgment so that my Motion to Leave can be heard prior to their Motion. My Motion has bearings on my ability to support my case diligently and to the degree that I have been working on for months to be allowed to do. This case has had obvious setbacks with defense counsel and defendants in discovery that I have brought to the court attention and I have had additional help from the court for assistance in these discovery failure that have impeded this process sooner. I filed a declaration with the court yesterday Tuesday, September 24, 2013 extensively detailing the history of the defendants and Plaintiff’s actions in the discovery process that should support this extension and further with the attached declaration.  I have also filed a motion to expedite a hearing for my Motion to leave to Amend with the court.  Thank you.

Cordially,

Audrey Ivancie

Plaintiff –Pro Se

 

                                               

DECLARATION IN SUPPORT OF PLAINTIFF’S MOTION TO LEAVE TO FILE AN AMENDED COMPLAINT (September 23, 2013)

IN THE CIRCUIT COURT OF THE STATE OREGON

                                           IN THE COUNTY OF MULTNOMAH

 

AUDREY IVANCIE, an individual,  Plaintiff, vs. THE OREGONIAN PUBLISHING COMPANY, an Oregon Corporation, ELIZABETH VINEYARD, an individual, DAVE GILLARD, an individual,KEVIN DENNY, an individual, Defendants.

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Case No. 1207-09344 ________________________ DECLARATION IN SUPPORT OF PLAINTIFF’S MOTION TO LEAVE TO FILE AN AMENDED COMPLAINT

I, Audrey A. Ivancie, do hereby declare:

1.       I am the Plaintiff, Pro Se, in the above matter.

2.       I have personal knowledge of all facts and statements contained

 herein, and I am competent to testify thereto.

 3.       I am making this declaration to clarify, supplement, and incorporate facts to my supporting memorandum for my Motion to Leave to File an Amended Complaint. 

 4.    This declaration is a historical account of discovery problems defense and defendants have caused to stall and suppress document discovery for the Plainitiff.

 5.       Plaintiff served her first order of production on the Defendants on December 10, 2010.

 6.       December 11, 2013 Janet Schroer was appointed Arbitrator. Plaintiff had just filed a Motion for Summary Judgment on her pleading that was denied at the hearing because there were disputes between parties.

 7       Attached to this declaration as Exhibit 1, a true and correct copy of an email from December 12, 2012 by Defense counsel Mr. Schpak writing to Arbitrator Janet Schroer asking to set arbitration January 10, or 16, 2012. Prior to responding to or providing any discovery to Plaintiff.

 8.      Attached to this declaration as Exhibit 2, a true and correct copy of an email from December 13, 2012 by Plaintiff Audrey Ivancie to Janet Schroer about the arbitration she is scheduling being premature because defense and she are still gathering necessary data to present to the court.

 9.      Attached to this declaration as Exhibit 3, a true and correct copy of an email from December 13, 2012 by Plaintiff Audrey Ivancie to Arbitrator Janet Schroer and defense counsel Mr. Schpak and Mr. Harnden that she is still waiting on documents from the defendants and that she is filing a stipulation with the court.

 10.      Attached to this declaration as Exhibit 4, a true and correct copy of an email from January 2 , 2013 by Plaintiff Audrey Ivancie to Defense counsel Andrew Schpak stating to him she is still awaiting documents from the Oregonian and that she is available to have her deposition taken at his convenience after the 15^th of February.

 11.      On January 2, 2012 the Plaintiff files a Motions to Remove case from Arbitration.

 12.      Attached to this declaration as Exhibit 5,  is a true and correct copy of a hand written letter Dated January 7, 2013 by the Plaintiff to Arbitrator Janet Schroer and copied to defense counsel informing her that she is still waiting on all of the production of documents discovery from the defendants.

 13.    Attached to this Declaration as Exhibit 6, a true and correct copy of an e-mail from January 8, 2013 by Defense counsel Andrew Schpak to Arbitrator Janet Schroer, and to the Plaintiff, that he would be responding to Plaintiff’s production of document requests.

 14.     Defense Responds to Plaintiff’s production of order request January 8, 2012 objecting by stating they are “overly broad and unduly burdensome, attorney eyes only and work-product doctrine. They do not provide any requested documents.

 15.      Plaintiff  sends defense counsel a revised Request for documents January 15, 2010 after Defendants failed to fulfill the Production of Document with delivery instructions for defendants.

 16.     Attached to this Declaration as Exhibit 7, a true and correct copy of an e-mail from January 17, 2013 by Plaintiff Audrey Ivancie to Arbitrator Janet Schroer and Defense counsel Mr. Schpak, Mr. Harden, and Mr. Ray regarding defendants not turning over discovery documents, which are now overdue. Plaintiff asks Arbitrator Janet Schroer to set a date for Defendants to turn over requested documents, and to prepare to set a hearing to compel if they fail to deliver.      

 17.     Attached to this Declaration as Exhibit 8, a true and correct copy of an e-mail from January 23, 2013 by Andrew Schpak to Janet Schorer and Plaintiff, stating that they are ready to deliver documents.

 18.    On January 23, 2013 Plaintiff calls courthouse and tells clerk the Arbitrator and    defendants have not been responsive to her emails. The court clerk instruct her to call the arbitrator on the phone and office and speak with her directly. Plaintiff telephones Arbitrator Janet Schroer making a good faith effort to have defendants ordered to produce documents they have not delivered through a hearing to compel.

 19.     Attached to this Declaration as Exhibit 9, a true and correct copy of an e-mail from January 24, 2013 by Andrew Schpak to Janet Schorer and Plaintiff stating defense is overnighting documents to Plaintiff’s home.

 20.     Plaintiff receives 8,946 documents on January 25, 2013. Documents submitted are incomplete, many are missing, and a number are incorrect unsigned time cards.  Additionally, they gave alternative summaries of payroll that was unrequested. The data disc is missing almost entirely all of the relevant information and items that support the elements of her claim that she had request them to produce.

 21.     The week of February 1, 2013 Plaintiff examines disc and finds more documents: missing , incomplete, redacted and missing specific comparators information and PTO information she expected to receive.

 22.   On February 8, 2013 Plaintiff files a Motions to stay Arbitration and Leave to file Amended Complaint with Janet Schroer.

 23.     On the afternoon of February 15, 2013, a holiday weekend, Janet Schroer denies Plaintiff’s Motion to Leave to File, and to Stay Arbitration that is to commence the following business day on February 19, 2013.

24.     Plaintiff informs Defense counsel Andrew Schpak, at his office that they gave her a disc of documents missing the requested documents they stated they would provide while she is hand-delivering copies of filings on or around February 8, 2013.

 25.     On February 19, 2013 Plaintiff states in-person to Arbitrator Janet Schroer and Defense Counsel and the defendants Mr. Schpak that defendants are withholding requested documents.

 26.     On April 4, 2013 Plaintiff files a bar complaint on defense counsel Mr. Schpak regarding his behavior with discovery and stonewalling documents and communicating dishonestly.

 27.     On the week of June 18, 2013, the Plaintiff  RE-hand-delivers first request for production with highlighted documents missing on request and a note to Sean P. Ray defense counsel at Barran Liebman firm.

 28.    Attached to this declaration as, Exhibit 10, is a true and correct copy of a letter the Plaintiff wrote to Mr. Schpak  June 27, 2013 outlining the specifics of her document requests they have failed to turn over, or have turned over incomplete with data missing.

 29.     Attached to this declaration  as Exhibit 11, is a true and correct copy of a letter  July 1, 2012 by defense counsel Andrew Schpak to Plaintiff denying to give plaintiff documents stating their substitute incomplete documents should be enough.

 30.    Attached to this declaration as Exhibit 12, is a true and correct copy of an email by the Plaintiff on July 3, 2013 to Mr. Schpak attempting to confer with Defense counsel about discovery.

31.     Attached to this declaration as Exhibit 13, is a true and correct copy of an email by Mr. Schpak on July 4, 2013 to the Plaintiff about discovery stating they have provided sales sheets posted on the wall. Defendants had not.

 32.    Attached to this declaration as Exhibit 14, is a true and correct copy of the second bar complaint the Plaintiff files on July 8, 2013 for Defense failure to provide documents, and dishonest practices.

 33.    On or around July 15, 2013 Plaintiff files Motion with the court to Dismiss Defendants Pleadings in their entirety for failure to deliver discovery.

 34.     Hearing on Motion to Dismiss (Sanctions) is construed by Judge Rees as a Motion to Compel the missing discovery July 31, 2013. Judge instructs Parties to draft an order for him to sign based on his ruling.

 35.    Between August 1 and 8, 2013 Defense counsel and Plaintiff exchange numerous emails on judicial order and bids for document. Plaintiff asks to meet in person immediately to clarify the documents that are to be produced completely.

 36.     Defendants mail a second  bates Disc dated “August 5, 2013” PTO information overnighted to Plaintiff August 6, 2013. Plaintiff examines disc of literally hundreds of pages.  Plaintiff discovers the information defendants were requested to provided were in fact, substituted with incomplete documents, missing key information pertinent to the discovery process, again.

37.     Defense Counsel Andrew Schpak e-mails a letter to Plaintiff regarding their responses to documents On Aug. 7, 2013 stating they don’t have documents any longer, will produce “Order Production Sheets” 13,000-18,000 and plaintiff  must pick a bid on their cost.

  38.    Defense counsel states all he and Mr. harden are away and will not return until the    following Wednesday, August 14, 2013.

 39.    Plaintiff goes to defense firm Barran Liebman  to meet with Mr. Schpak and Mr. Ray to go over each incomplete document as it appears in an accompanied declaration she also prepared for the judge in her proposed court order.

 40.     August 15, 2013 Plaintiff writes a letter to Judge Rees that she conferred in detail and supported this conferral in a Declaration (with supporting exhibits) to Defense Counsel Mr. Schpak that specific documents were missing, as well as missing fields of information in submitted documents, that should have been accounted for. Plaintiff provided sample copies of the documents request that came incomplete or not at all and examples of complete documents with easily visible differences referenced.

41.      On August 23, 2013 Defense send a letter to Plaintiff with a bates disc AIVA 010163-0103234. Plaintiff examines bates disc AIVA 010163-0103234, from defense counsel, and information expected per mutual conferral is not produced on disc.

42.     September Plaintiff file another motion to compel on August 29, 2013 after defendants fail to comply with judicial order, and do not produce order production sheets promised and ordered. They make it cost prohibitive at over $1,500 in bids and won’t deliver ordered documents.

 43.     Plaintiff files a Motion to Strike Defendants Pleading in their entirety on September 3, 2013 for failure to deliver court-ordered discovery.

 44.     Plaintiff files an affidavit in Support of her motion to Strike Defendants’ pleadings September 3, 2013  because the defendants’ disk has not deliver court-ordered documents.  Moreover, the 1000s of documents they did submit were missing years of information, as well as applicable agent comparators –of which they were instructed to provide.

 45.     On September 16, 2013 there was hearing on Plaintiff motion to strike defendants pleading as sanctions for failure to deliver court ordered documents and compelling production of documents. Judge instructed defense counsel to write him by the following day explaining where the missing documents “ order production sheet that they promised to deliver and the judge had ordered.

 46.     September 17, 2013 Defense writes Judge Rees explaining they’re faulted for not looking in the box of document from the defendants to discover a disk of information that are probably the order production sheet.

 47.     September 18, 2013 the Plaintiff receives in the afternoon mail over 36,000 documents on a data disc containing only partial documents. The Disc had a creation date of January 1, 2000 (Y2K) over four year before the Plaintiff  was employed at the Oregonian. This disc contained information from her employment but it was still incomplete as requested and ordered by the court.

48.    Attached to this declaration as Exhibit 15, is a true and correct copy of  a letter sent to Judge Rees In the evening of September 18, 2013 Plaintiff writes and  explains that she just received a disc with over 36, 000 files, in an alien format that has incomplete reports of the promised Order Production Sheets.

 49.     Septembers 19, 3013 Judge Rees addresses the  Plaintiff letter  to the court regarding the discrepancies of the disc from the defendants Motion.  Plainitff provides the court with a sample from the disc showing blank information and incomplete fields. Defense argues that there is more information than she requested. Plaintiff states the information she requested is still not there. Judge Rees postpones Defendants Motion for Summary judgment hearing so that Plaintiff can spend more time sifting through the 36,000 documents defendants delivered the night before.

 50.    The Plaintiff has been able to infer and deduce that the evidence withheld by defendants and stonewalled by defense on PTO, wages, quality of calls, Order Production, and missing employee handbook are indicators that they support her IIED claim and elements of her claim.

I hearby declare that the above statement is true to the best of my knowledge and belief,and that I understand that it is made for use as evidence in court and subject to penalty for perjury.                                                   

                                                                                            ______________________________

  SIGNED this date September 23, 2013 by                Audrey A. Ivancie –Plaintiff Pro Se

                                                

 

 

 

 

 

 

 

            

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION TO LEAVE TO AMEND COMPLAINT September 23, 2013

                                                               MEMORANDUM

This memorandum is made in support of Plaintiff’s Motion for Leave to file an Amended Complaint to allege additional claims. Plaintiff has asked to Move the court to allow her to amend her complaint because, during discovery, she found within the tens of thousan

ds of deliberately incomplete documents submitted, key support that have lead to discovery of new claims.   Attached to this memorandum is a declaration of factual events supporting these arguments. 

                                                                        1.

There is no prejudice to Defendant for allowing Plaintiff to Leave to Amend, instead Plaintiff is prejudiced by Defendants repeated failures in Discovery to move forward.

 There has been a long history in this case of the Defendants: stonewalling, withholding, substituting, and sending incomplete documents that are missing requested and court ordered information.  In each case, the missing data is specifically that which supports the Plaintiff’s claims and elements, and has led to other discoveries.

 

Defense has continually requested more time to confer with their clients after repeated conferences with exhibits supporting the Plaintiff’s request documents . Following these conferences, they deny they understood the requested for documents, send alternate represented attorneys to request additional time to confer to stall and drag out the process  for the purpose of impeding the Plaintiff’s efforts for Discovery.

a.         Defendants’ are not prejudiced by Plaintiff Amending Complaint. Plaintiff has been prejudiced by Defendants willful withholding requested documents and failures to cooperate, and delay discovery that would have allowed her to amend sooner.  (See Ivancie, Declaration)

b.         It is not the Plaintiff who has caused delay of discovery, it is the Defendants who are  

at fault. See attached declaration of historical efforts to gain discovery requested through arbitration, arbiter, emails, phone calls, conferences, two motions to compel , judicial orders, hearings, supporting affidavits, and motions for sanctions on their continued failures.  Despite all of these

extensive communication efforts, Defendants have still failed to turn over discoverable documents completely, and this resistance  and non-compliance now totals 9 months, and 13 days. (Ivancie, Declaration)  Plaintiff has continued to hold the Defendants accountable for the discovery by her repeated actions with the court to hold in check of their responsibilities to this legal process.

c.         Defendants have attempted to game the system they have done this by scheduling premature arbitration dates to skirt their responsibilities to providing discovery.  Delaying discovery, incompletely providing discovery, scheduling  a Motion For Summary Judgment hearing after continued failure and delaying delivery of documents, asking the court for additional time to confer even after Plaintiff met in person and exhibited specific complete documents she expected them to produce per judicial order.  After this, they delivered more incomplete documents.

 Plaintiff had to seek motions for sanctions on two occasions because of Defendants’ failure to deliver court-ordered discovery. She had corresponded with Defense Counsel by more than 70 communications: email, phone, in person conferences and court hearings.  Defendants dumped more than 36,000 documents in an alternative format 2 days before Defendants Motion for Summary Judgment Hearing. This disc containing more than 36,000 documents that were still incomplete and stated the remainder of the judicial order no longer exists in their possession of control after they had previously promised to deliver. Defendants’ have made excuses  and stated they have changed computer vendors, changed email providers, and they have saved over requested documents, they claim they can’t find an employee handbook or that it doesn’t exist, contrary to what the Plaintiff once had in her possession.

On September 16, 2013 during a court hearing on  discovery and sanctions the Plaintiff showed defense counsel and court the documents were still incomplete. Defense counsel promised to confer with his client and stated a new disc had been discovered with these documents. September 19, 2013 at another court hearing  Plaintiff showed defense counsel where the documents are still incomplete before the Motions judge. Defense stated they found a disc in a box the defendants had given them(they hadn’t conducted a reasonable search ) This disc was suspiciously created in the year Y2K.

 d.         Defendants have intentionally not cooperated with discovery in this case, and have intentionally suppressed documents that support the Plaintiff claims and discovery off addition claims sooner.

 e.         Defense has deliberately delayed discovery so that Plaintiff would not have her documents to support her claim thus prejudicing the Plaintiff to amend sooner. However in the 50,000 documents there was some evidence that would support the elements of her claim and support the discovery of new claims. 

2.

The Plaintiff asks to file an amended complaint based on what she has discovered since her originally filed complain July 25, 2012 and in the news documents just provided by Defendants that are newly realized claims.

 a.         Plaintiff needs to Amend her complaint. In the vast pile of documents dumped on Plaintiff by defense counsel she found the little she needed that support her new claims. –she had a suspicion that she had new claims, and has newly realized there are claims that need to plead and proved, and would like to proceed on new claims.

 b.         Plaintiff understands she has a gender discrimination claim Title VII and EPA claim, because Defendants gave male employees more downtime which resulted in them being paid more in wages. She found this evidence in the small scattering of relevant documents Defendants did provided.  Men also received more bonuses and recognition, and promotions including additional pay than women reflected in bonus awards given to men also found in the little relevant documents. (Ivancie, Dec.) Plaintiff just received a Right to Sue Letter From the EEOC, July 16, 2013 that she would like to allege in state court.

c.         Plaintiff has newly realized after she filed her original complaint that she has breach of contract pay because Defendants withheld leads from Plaintiff that were to be provided to her based on their  agreed work contract.

 d.         Plaintiff has newly realized after she filed her original complaint that she has a breach of contract for the Oregonian’s Job Protection Pledge –that she was supposed to be protected for termination by using supporting document from Defendants and conducting online research. 

e.         Plaintiff has newly realized and discovered she has a breach of contract for failure to pay PTO hours and amounts based on their employment contract for compensation.

 f.          Plaintiff has newly discovered she has an additional claim for breach of contract for terminating plaintiff while on an approved medical leave.

 g.         Plaintiff has had a suspicion that she had these other claims but was looking for the evidence in the documents from Defendants. The Plaintiff found some documents that support additional claims of relief.

 CONCLUSION

Plaintiff has the right to move the court for leave to amend complaint to align with newly realized and discovered supporting documents to her claim, and this action to move the court to allow her to Amend will not prejudice the  Defendants. Further, it was their fault they delayed discovery and prevented earlier advancements.

 

Instead, the Defendants have shown a distain for the court and have tried to game the system.  For the foregoing reasons the Plaintiff  Motion to Leave to Amend must be Granted.

SIGNED this date September 23 ,2013          __________________________________

                                                                            Audrey A. Ivancie –Plaintiff Pro Se

PLAINTIFF’S SECOND REQUEST FOR DOCUMENTS (Older Request July 24 2013

     Plaintiff reserves her right to allege affirmative complaints and request additional evidence as to incorporate as they should become apparent during discovery. As stated in the Defendants’ Response to Plaintiff’s Request, Plaintiff also states that Pursuant to Oregon Rule of Civil Procedure (“ORCP”) 36 and 43, Plaintiff request the  Defendants produce the documents described below. The term “documents” shall have the broadest meaning under ORCP 36 and include any recording of data or information in any form.   This explicitly includes all data maintained in the following forms: computer data, sales sheets of employees former or current that completed or performed the same duties as the Plaintiff since January 2009. The Plaintiff requests production within (30) days of the date of service at the home of the  Plaintiff 1929 NW Irving St. Suite #210 Portland, OR 97209. Please Notify Plaintiff with intent to deliver 1 day prior so that Plaintiff can make arrangements to be present.

            These requests for production are directed to the Defendants: Elizabeth Vineyard, Kevin Denny,  David Guilard, The Oregonian Publishing Company, The Defendants’ agents, attorneys,

accountants, consultants, representatives, private investigators, vendors and any who act and/or have acted on the Defendants behalf. These requests for production encompass all documents and tangible items of any nature which are now or have at any time been within the Defendants care, custody or control.

  DEFINITIONS

1.     “Documents” means without limitations any written, recorded, filmed, or graphic matter, whether produced, reproduced, or on paper, cards, tape film, electronic mail, or facsimile, computer storage device, or any other media, including but not limited to memoranda, notes, minutes, emails(groupwise),records, photographs correspondence, telegrams, diaries, bookkeeping entries, financial statements, tax returns, checks, check stubs, reports, studies, charts, graphs, statements, handwritten notes, applications, agreements, books, pamphlets, periodicals, appointment calendars, records or recording  and of oral conversation and work papers, and also including but not limited to originals and all copies which are different in any way from the original , whether by interlineations, receipt stamp notation, indication of copies sent, received or otherwise circulated, and drafts that are or ever have been  in the possession, custody, or control, of other individuals or entities known by the Defendants  to exists.

        2. “Defendants,” “them,” “they” means “Elizabeth Vineyard”, “Kevin Denny”, “Dave  Guilard”, “ The Oregonian Publishing Company, the named Defendants in this action. And includes all present and former agents, servants, employees, representatives, private investigators, attorneys, vendors  and all others acting or purporting to act on behalf of Defendants in this action.

         3.  “Plaintiff,” is and means Audrey Ivancie, the named Plaintiff in this action and is representing herself at this time Pro Se and has no one purporting to act on behalf of Plaintiff.

       

         4.  The words “and” “or” and “and/or” shall not be interpreted to exclude any information from the scope of discovery request.

INSTRUCTIONS

1.        The documents shall be organized and labeled to correspond with the category No. Requests to be produced in response IN NATIVE HARD COPY.

 

1.        If   Defendants claim that any document required to be produced in response to these requests is protected from disclosure by any privilege or doctrine, Defendants shall set forth for each such document for both parties to determine relevance.

                        

      (a) the type of document, e.g. letter, memorandum, or object;

                        (b) the general subject matter of the document;

                        (c) the date of the document; and

            (d) such other information as is sufficient to identify the document for a subpoena

duces tecum, including where appropriate the author, addressee(s), and other recipients(s) of the  document, and (where not appropriate) the relationship between the author, addressee, and any other recipient. If the complete and exact information regarding the document it not known, including but information known and specify in what respect the response is or may be incomplete or inaccurate due  to lack of knowledge on the part of the Defendants.

    

      (e) Any and all such documented or information deemed proprietary should be    

       labeled as such any reasonable accommodation should be made to supply the  

      generation nature of the information requested if the actual content is unavailable,  

      or of a sensitive nature IN HARD COPY and labled.

           

3.  These requests shall be deemed continuing in nature so that Defendants shall  subsequently produce any additional responsive documents should such documents come to the Defendants’ attention rendering the earlier production incomplete.

                                                REQUESTS FOR DOCUMENTS

REQUEST NO. 15:  All W-2 and Tax returns for Dave Guilard and Elizabeth Vineyard from 2002-2013.

RESPONSE:

REQUEST NO. 16:  All stored back-ups tapes or any other digital back-up and what software is required to open them for Liberation systems and previous auto dialer records. Admin/ group username and password from the automated dialing systems from January 2004- January 2013.

RESPONSE:

REQUEST NO. 17: All DAT or DLT record back-up tapes or digital back-up software from 2004-2013 from Liberation Systems and the Other automated dialer system in use 2004 when the Plaintiff began her employment. The dates of any changes in software implementation. When did old systems switch over and/or conjoin with Liberation Systems.

RESPONSE:

REQUEST NO. 18: All medical and mental health records for the 2005-2013 for Elizabeth Vineyard. The names and addresses of all of her treating physicians.

RESPONSE:

REQUEST  NO.19:  What are the names of the IT directors that over saw back-up systems at the Oregonian from 2004-2013.  A brief summary of employees technical, IT and  management that are familiar and have access to Liberation software.

RESPONSE:

REQUEST  NO. 20 The names of the automated dialer systems used by Inside Sales for conduct of telemarketing business in 2004? All documents, data and user manuals for the phone dialing system and operating system prior to Liberation. E.g. SALES FORCE

RESPONSE:

REQUEST NO. 21: Who were the project leads/ managers/ Techs/Supervisors/ Oregonian staff for implementing and modifying the Liberation systems and other telemarketing dialing-campaign systems working for the Oregonian 2004-2013.

RESPONSE:

REQUEST NO. 22: Who are/were the Oregonian’s primary contacts at/in Liberation Sales and IT the Liberation systems. First and last name and current address and phone number.

RESPONSE:

REQUEST NO.23: All complete campaign profile reports for Liberation systems: Inventory Reports, Agent Reports, Campaign Reports, System Reports (See page 4-2, 4-3, & 4-4 of Liberation user manual) Only defined criteria by date for each complete day and entire shift for each agents to include all agents and all campaigns, and manual dial campaigns worked by agents between the implementation of Liberation Systems and the end of the Plaintiffs employment in April 2011.All same reports from pervious system in use from 2004- through Liberation systems. And all switches and logs and modifications for agents working during these times.

RESPONSE:

REQUEST NO. 24: All employees that worked with or during the Plaintiff’s employment service in Inside Sales 2004-2012–Including AM and PM shifts. And names and their dates of service.

RESPONSE:

REQUEST NO. 25: Current resumes for Defendants’ Vineyard, Guilard, and Denny including last ten years of employment history.

RESPONSE:

REQUEST NO. 26: Who were the employees that were hired internally from Inside Sales to be “Stop Savers”. Their first and last name and start date and end date of position as stop saver. If additional pay was given to this position or hourly rate change. This is an official request for this information.

RESPONSE:

REQUEST NO. 27: Who was the employee made ‘PIC’  person in charge appointed by Defendant Guilard and Vineyard to control and distribute leads to the Inside Sales agents in their absence. How much extra money was he paid for this duty?  How long was he in this position start date – end date and pay rate change. E.g. Michael Thompson.

Why were female candidates not considered?

RESPONSE:

REQUEST NO. 28: All Inside Sales Agents the received free lunches in exchange for making pre-lunch quotas in 2008-2010 as per Defendant Guilard. Names of these individuals and all  dates they received lunches.

RESPONSE:

REQUEST NO. 29: All inside Sales agents recognized for Employee of the month Status. Their names and all dates of recognition. Also, any management personnel present at these reward lunches.

REQUEST NO. 30:All Inside Sales agents that were given additional hourly pay for contacting active subscribers doing customer service and route management for service and delivery issues This was a specific temporary position that began 7am M-F until 9 am. Which agents and how much additional pay. When did this voluntary position begin month and year and end month year.

REQUEST NO 31: Pat Perry was transferred to a customer service Position after she vocally complained to Defendant Guilard about the abuse to the automated dialer. I am requesting the date she complained, all notes and emails regarding this complaint, the date of her transfer. Her hourly pay-rate change and the date of her last day of employment at the Oregonian.

REQUEST NO. 32: All Inside Sales employees that received Oregon State unemployment or under employment benefits between 2004-2013 during their active employment and after buyouts and terminations.                       

 

              7/24/2013                                                     ______________________________

                                                                                    Audrey Ivancie—Plaintiff — Pro Se