Greenwich Housing Authority discrimination, part 3 of 5

Kristi Wachter <humanrights@racerrecords.com>
Greenwich Housing Authority discrimination, part 3 of 5
18 Sep 2002

C. There Was No Undue Delay, Fed.R.Civ.P. 11 Prevented Plaintiff from Bringing Religious Discrimination Claim Until After Further Investigation, Production Requests and Deposition Testimony.

Plaintiff asserts that she was prohibited from bringing a claim of religious discrimination until the recent Sixth Amended Complaint because neither she and nor her counsel had sufficient evidentiary proof pursuant to Fed.R.Civ.P. 11. However, discovery and deposition testimony in this case now reveals that there is sufficient evidence to support her claim of religious discrimination.

During a State of Connecticut Unemployment Appeals hearing, Defendant Little testified for the first time that he was a Scientologist:

Q: Okay. Before I ask whether there are others, where does ARC2, A-R-C, come from?

A: A-R-C comes from L. Ron Hubbard's training.

Q: Okay.

A: On management. Yes.

Q: And what's that?

A: Scientology management.

Q: Okay. And I'm unfamiliar with that. Can you describe what Scientology is?

A: Well, it's a principle of management that I utilize of making sure that people know what they're doing. It's very structured. And it works very well.

(Exhibit K: State of Connecticut Unemployment Appeals Division, June 7, 2001, Transcript at pp.108-109, Direct Examination of Benjamin W. Little).

After receiving the transcript of Defendant Little's testimony in the June 7, 2001 Unemployment Appeals Hearing, Plaintiff filed her charge of religious discrimination, pursuant to Title VII, with the United States Equal Employment Opportunity Commission on July 17, 2001. The Plaintiff was diligent in bringing her claim through the administrative process. She did investigate all available resources, both factual and legal, to determine whether religious discrimination occurred, but she found nothing. The EEOC issued a Notice of Right to Sue on July 18, 2001. It is important to note that Rule 11 does not control the EEOC charge filing process.

Fed.R.Civ.P. 11 states in pertinent part as follows:

(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(1) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support, or if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; . . .

Plaintiff asserts that neither she and nor her counsel had sufficient evidentiary support, pursuant to Rule 11, to commence a suit on religious discrimination grounds. Neither Plaintiff nor her counsel had any idea what Scientology was. (See Exhibit F [Declaration of Ursula Milde] and L [Declaration of Attorney Mark P. Carey]). No reasonable person would have been able to comprehend that Scientology played an active role in the discrimination thwarted against the Plaintiff.

The Advisory Committee's Note to the 1993 Amendment of Rule 11 further provide in pertinent part:

"[t]he rule continues to require litigants to 'stop-and-think' before initially making legal or factual contentions. (emphasis added) It also, however, emphasizes the duty of candor . . . The certification with respect to allegations and other factual contentions is revised in recognition that sometimes a litigant may have good reason to believe that a fact is true or false but may need discovery, formal or informal, from opposing parties or third persons to gather and confirm the evidentiary basis for the allegation. Tolerance of factual contentions in initial pleadings by plaintiffs or defendants when specifically identified as made on information and belief does not relieve litigants from the obligation to conduct an appropriate investigation into the facts that is reasonable under the circumstances; it is not a license to join parties, make claims, or present defenses without any factual basis or justification. Moreover, if evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery, the party has a duty under the rule not to persist with that contention. . .The certification is that there is (or likely will be) 'evidentiary support' for the allegation, not that the party will prevail with respect to its contention regarding the fact.

Although Defendant Little testified that he was a Scientologist, Plaintiff's counsel had to first "stop-and-think" before bringing a claim for religious discrimination. Pursuant to Fed.R.Civ.P. 11, Plaintiff's counsel was prohibited from filing suit on the religious discrimination claim because Defendant Little's June 7, 2001 sworn testimony did not provide a sufficient evidentiary basis to support the claim. Defendant Little never came out directly and stated that Plaintiff was fired because she protested against Scientology. Plaintiff was even prohibited from bringing the claim based on "information and belief." Plaintiff's counsel conducted a thorough investigation, however he found no legal or factual support to bring the claim. Plaintiff's counsel found only one reported decision involving religious employment discrimination based on Scientology.3 No third party witnesses ever came forward and provided information that Defendant Little discriminated against Plaintiff based on her "suppressive" behavior (opposition) to his Scientology practices.

Further investigation and discovery was necessary to support Plaintiff's religious discrimination claim. (Exhibit L Declaration of Attorney Mark P. Carey). In State Teachers Retirement Board v. Fluor Corp, the plaintiff sought leave to amend its complaint four months after learning of additional facts through deposition and added new claims against the defendants. The district court denied plaintiff's leave to amend. The Second Circuit reversed on the grounds of an abuse of discretion. The court held, "although State Teachers' amendment may result in delay, it will not unduly prejudice the defendant. The amended claim was obviously one of the objects of discovery and related closely to the original claim of non-disclosure of the SASOL project. The delay in order to depose Etter was justified in light of State Teachers' need to verify what information was made public by Fluor. Clearly, this involved information better known to the defendants that to the plaintiffs." 654 F.2d 843, 856 (2d Cir.1981)

As discussed supra, Scientology is an allegedly benign religion. There was absolutely no way for Plaintiff, nor her counsel, to discover the religious discrimination at the Housing Authority until after receipt of production requests [served on August 30, 2001] on August 9, 2002 (See Exhibit B) and deposition testimony (See Exhibits C (Deposition Trans. Thomas Crawford dated June 27, 2002) and D (Deposition Trans. Russel Kemp dated June 19, 2002).

In Plaintiff's August 30, 2001 Request for Production No. 64, she requested the following documents:

Please provide a copy of all "ARC" management training materials, also called L. Ron Hubbard's Training Materials, (as testified to be Defendant Little during the Unemployment Appeals Hearing, dated June 7, 2001, page 105-110) used by the Defendants, including Defendant Little, for staff training during Plaintiff's tenure of employment to the present.

(Exhibit J: Plaintiff's Request for Production dated August 30, 2001, No. 64). Ironically, the Defendants did not produce the requested documents until one year later on August 9, 2002. (Exhibit B: Letter from Attorney Seth Eisenberg dated August 9, 2002, responding to Discovery Request No.'s 64 containing Scientology training materials "Improving Business Through Communication, by L. Ron Hubbard). The Defendants discovery response was served "after" its' July 31, 2002 Motion to Dismiss Plaintiff's Sixth Amended Complaint. Plaintiff asserts that the Defendant deliberately waited close to one year before it provided the requested documents and after Plaintiff filed her Sixth Amended Complaint alleging religious discrimination. More important, Plaintiff had sent numerous letters subsequent to the discovery request to obtain not only the training materials, but other documents that still have not been produced.4 Now in view of the arguments contained herein, Plaintiff asserts that it is almost too obvious that the Defendants never wanted her religious discrimination claim to see the light of day. (emphasis added). A party cannot perfect a claim of religious discrimination, if she is repeatedly denied access to pertinent documents, such as Scientology training course materials. Plaintiff's delay in bringing her religious discrimination claim on July 8, 2002 was "caused" by the Defendants obfuscation, i.e "we're still looking for the requested document".

In order to further perfect her claim and conduct a good faith investigation pursuant to Rule 11, Plaintiff conducted two depositions of Russel Kemp, the former Director of Finance for the Defendants, and Thomas Crawford, the former Executive Director of the Defendants.

Deponent Russel Kemp, the former Finance Director for the Defendants testified as follows:

Q: Okay. Are you aware of Mr. Little's religious affiliation?

A: Mr. Little and I - I don't ever think we ever talked about his religious affiliation but, in general, I've heard that he is a scientologist.

Q: Did you ever attend a meeting that was hosted by a colleague of Mr. Little for the Housing Authority employees where there were L. Ron Hubbard scientology principles being taught?

A: Yes.

Q: When did that occur, sir?

A: I don't know exactly, but I think it was 1998.

Q: And how many meetings did you attend?

A: Oh, gee, we must have had five or six sessions with those people or that man.

Q: Mr. Wheatley?

A: Mr. Wheatley, correct. . .

A: The training seemed ridiculous for me so I didn't take it very seriously. I didn't listen probably to what Mr. Wheatley had to say. I knew it was required training in the Housing Authority so I sat through and thought about other things most of the time and I really didn't absorb much of these things. So if he used the word ARC a lot in his presentation, I just probably didn't take it in. . .

Q: Did you receive any documentation from Mr. Wheatley during these meetings?

A: Yes, we did receive some materials that appeared to be authored by Ron Hubbard. . .

A: I perceived the meeting to be required, yes. . .

Q: Was there a bill or bills received by Mr. Wheatley's organization for these services he rendered to the Housing Authority?

A: Yes.

Q: And what was the amount of those bills?

A: I don't recollect exactly and there were more than one, obviously, and there were bills for materials and I think--I think it was on the order of $10,000, but I don't know exactly.

(Exhibit D: Deposition Transcript of Russel Kemp at pp.191-201, June 19, 2002). It is interesting to note that as former managerial employee of the Housing Authority, deponent Kemp confirmed that the Defendants maintained possession of the Scientology training materials as far back as 1998. Why then the delay in providing it to the Plaintiff pursuant to a request for production?

--
Kristi Wachter the activist formerly known as "Jour" (before $cientology outed me)

If I am not who you say I am, then you are not who you think you are. - James Baldwin

I think $cientology is hurting people and breaking the law, and I want them to stop it. See http://www.scientology-lies.com for more.

KSW: http://www.truthaboutscientology.com/alteringtech.htm