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LAW OFFICES

ONE ARIZONA CENTER

400 E. VAN BUREN, SUITE 1900 PHOENIX, ARIZONA 85004-2202

Marian M. Zapata-Rossa (AZ Bar No. 025846)

SNELL & WILMER L.L.P.

One Arizona Center

400 E. Van Buren, Suite 1900

Phoenix, Arizona 85004-2202

Telephone: 602.382.6000

Facsimile: 602.382.6070

E-Mail: mzapata-rossa@swlaw.com

Attorneys for Defendant Aerotek, Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Jania Mkunga,

Plaintiff,

v.

Aerotek, Inc., a Maryland Corporation; 

Edward D. Jones & Co., a Missouri 

Limited Partnership,

Defendants.

No. CV-17-04652-DLR

THE PARTIES’ RULE 26(f) JOINT 

CASE MANAGEMENT REPORT

Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and the Court’s 

February 16, 2018, Order setting the Rule 16 Case Management Conference [Dkt. 20], 

Plaintiff, Jania Mkunga, and Defendants, Aerotek, Inc. and Edwards D. Jones & Co., 

(collectively the “Parties”) hereby submit their Joint Case Management Report.

1. The Parties Who Attended the Rule 26(f) Meeting

Jania Mkunga,

Pro Se

Marian M. Zapata-Rossa, Esq.

Counsel for Defendant Aerotek, Inc.

Kristy Leah Peters, Esq.

Melissa Lori Shingles, Esq.

Counsel for Defendant Edward D. Jones & Co.

2. Nature of the Case

Plaintiff:

Plaintiff believes that Defendants Aerotek, Inc. and Edward Jones & Company 

engaged in a pattern of discrimination when they allegedly claim that Plaintiff took an

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assessment test and failed it. Plaintiff’s contention is that she did not take an assessment 

test. In addition, Defendant Edward Jones belatedly “manufactured” a phantom live call 

format assessment which Plaintiff believes is pretext, a cover-up to justify Plaintiff’s 

termination from her employment at EDJ. As a result, Plaintiff believes that coming up 

with a “random” score of this phantom assessment several months after the charge was 

filed with EEOC is egregious behavior and willful animus by both parties against Plaintiff 

in violation of Federal and State labor laws and Title VII Civil Rights of Plaintiff’s Civil 

Rights. Plaintiff will ask the court in the jury trial to reject the notion that the assessment 

even occurred, including the validity of this so-called live call assessment test and its 

scores as alleged by the Defendants. EEOC Uniform Guidelines of Employee Selection 

Procedures (UGESP) is clear about the impact certain employment selection instruments 

in the selection process and how some of the employee selection instruments can easily 

negatively impact members of minority groups in the form of disparate impact. Other 

more objective and subjective methods of assessment were available at EDJ, however,

EDJ did not use them to assess Plaintiff’s learning experience and continued training. 

Moreover, Plaintiff had already taken a pre-employment test from Defendant Aerotek 

before she was considered for employment at EDJ. Furthermore, Plaintiff was treated 

differently – less favorably than other Aerotek and non-Aerotek similarly situated 

contractor employees at EDJ. Plaintiff was not given the same amount of training 

privileges as other similarly situated contractor employees. As a result, Plaintiff suffered 

disparate treatment. In yet another example, other Aerotek and non-Aerotek contractor 

employees were not given the same live call assessment test. If they were given the same 

live call assessment, there is no reason Defendants don’t have these scores readily 

available during the MID discovery while Plaintiff’s scores are available. Mock client 

call scenario assessment tool was used to assess other younger, American-born, nonaccent speaking contractor employees. Plaintiff witnessed firsthand when a mock 

scenario assessment was given to one of the contractor employees. There is an abundance 

of evidence that other contractor employees were notified and prepared to take the 

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assessment ahead of time. Plaintiff was not given the same opportunity by her on-the-job 

coaches nor by Aerotek’s recruiting team. The nature of this case is discrimination by 

disparate treatment and disparate impact, and yet neither Party is eager to share the 

data which is the basis for Plaintiff’s termination while other contractor employees were 

retained.

Defendant Aerotek:

Aerotek is a global recruitment and staffing agency that works with various 

companies to provide employee staffing services. Starting on or about September 7, 2016, 

Aerotek hired Plaintiff as an Operations Specialist II to work on assignment with its 

client, Edward Jones. On or about October 6, 2016, Edward Jones Contingent Workforce 

Coordinator, Dana Cronin, contacted Aerotek Account Recruiting Manager, Juan Calixto 

requesting to end Plaintiff’s assignment at Edward Jones due to her unsatisfactory 

performance. At no point during Plaintiff’s assignment or upon termination of that 

assignment did she raise any concerns she was being subjected to discrimination based on 

her age, race, or national origin. It was not until later that she indicated she was not 

satisfied with the reasons why the temporary assignment at Edward Jones ended. Upon 

further review, however, Aerotek learned that during Plaintiff’s performance assessments, 

during which the trainers monitor the calls of all new trainees, Plaintiff’s trainers reported 

multiple instances where she provided the wrong information to Edward Jones customers 

as well as situations where the customers became angry with Plaintiff. Her trainers 

decided that she was not implementing takeaways from lessons learned and the coaching 

sessions she had received. Unfortunately, Plaintiff did not show sufficient improvement 

and therefore, her assignment was ended. Plaintiff’s claims that she was discriminated 

against are frivolous and based solely on her subjective belief as to her qualifications for 

her position and her performance. Defendant Aerotek is, therefore, entitled to recover 

costs and attorneys’ fees incurred.

Notably, even after Edward Jones ended her assignment, Plaintiff remained eligible 

for other work opportunities through Aerotek. On or about October 14, 2016, Aerotek 

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found her a new assignment with its client, Delta Career Education Corp., working as a 

Financial Advisor Representative. However, without giving any notice, Plaintiff tendered 

her resignation within weeks, stating that she found more suitable employment elsewhere. 

Despite Aerotek’s attempts to contact Plaintiff thereafter for future placement 

opportunities, she never responded. Accordingly, Aerotek has not taken any adverse 

actions against Plaintiff, and any action that was taken against Plaintiff was taken for 

legitimate, non-discriminatory reasons. Aerotek would have made the same decisions 

regarding Plaintiff absent any impermissible motivation. At all times, Aerotek acted in 

good faith and without malice, ill will, or reckless indifference toward Plaintiff. 

Therefore, Aerotek has no liability in this case.

Defendant Edward D. Jones & Co (“Edward Jones”):

Plaintiff was an employee of Defendant Aerotek, a staffing company. Plaintiff 

began a temporary assignment in the Insurance Services Department of Edward Jones on 

September 7, 2016. In this role, Plaintiff was responsible for fielding telephone calls from 

branch offices and advising branch office employees on the proper procedures for 

processing insurance products. Beginning with the first day of her assignment, Plaintiff 

participated in one week of classroom-based onboarding, followed by a period of on-thejob onboarding led by Insurance Services On-the-Job Coach Rochelle Martinez. As 

Plaintiff began to field calls, Ms. Martinez observed that she appeared unable to apply 

information learned during the onboarding process. As a result, Ms. Martinez extended 

Plaintiff’s onboarding for an additional week. During the additional period, however, 

Ms. Martinez noted that Plaintiff continued to confuse processes and was uncertain about 

which intranet pages she should utilize during calls.

At the end of the onboarding period, temporary workers in the Insurance Services 

Department are given a proficiency test, which involves a review of a selection of the 

worker’s recent live calls. Plaintiff scored only 60% on her proficiency test, well short of 

the 90% score required for workers to move from the onboarding period to working 

independently. On October 6, 2016, Edward Jones informed Aerotek that they wished to 

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end Plaintiff’s assignment due to her failure to grasp the requirements of her role and her 

poor score on the proficiency test.

Edward Jones affirmatively asserts that it was not Plaintiff’s employer, nor was it a 

joint employer. Accordingly, Plaintiff’s claims under Title VII and the Arizona Civil 

Rights Act fail as a matter of law. Additionally, Plaintiff’s claims under the Arizona Civil 

Rights Act are time-barred because she filed her Charge on October 17, 2016, but did not 

file the Complaint until December 15, 2017 – past the one-year statute of limitations.

Even assuming Edward Jones was a joint employer, which Edward Jones expressly 

denies, Plaintiff’s race, national origin, or age did not play any part in its decision to 

request that Aerotek end her assignment with Edward Jones. With respect to Plaintiff’s 

claims of race and national origin discrimination, Plaintiff cannot show that she was 

performing up to Edward Jones’ legitimate expectations or that similarly-situated 

individuals outside her protected class were treated more favorably. Plaintiff also cannot 

meet the burden of establishing discrimination under the ADEA. She cannot prove that 

age was the “but-for” cause of Edward Jones’s decision to request the end of her 

assignment. Here, Plaintiff has no evidence that Edward Jones treated her differently on 

the basis of her age, let alone evidence that it ended her assignment because of her age. 

Edward Jones acted with legitimate, non-discriminatory reasons – Plaintiff’s failure to 

pass the proficiency test – when it ended her assignment.

3. Principal Factual and Legal Disputes in Case

The principle disputes in this case involve:

• Whether Plaintiff was discriminated against on the basis of her race, 

national origin, and age in violation of the Arizona Civil Rights Act, Title 

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1981, and the 

Age Discrimination in Employment Act of 1967 (“ADEA”).

• Whether Plaintiff was performing her job satisfactorily.

• Whether Plaintiff took an assessment test as alleged by both Defendants.

• Whether Defendant Aerotek had a legitimate, nondiscriminatory, nonCase 2:17-cv-04652-DLR Document 33 Filed 05/03/18 Page 5 of 11
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pretextual reason for terminating Plaintiff’s employment.

• Whether Defendant Edward Jones was Plaintiff’s employer.

• Whether Defendants would have taken the same actions against Plaintiff, 

regardless of her race, age, and national origin.

• Whether Defendant acted wrongfully or with ill will, malice, or reckless 

indifference toward Plaintiff.

• Whether Plaintiff’s claims are barred by the after-acquired evidence 

doctrine.

• Whether Plaintiff’s claims under the Arizona Civil Rights Act are timebarred.

• Whether Plaintiff has mitigated her damages.

4. Jurisdictional Basis of the Case

The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 as 

Plaintiff’s claims arise under the Title VII (42 U.S.C. § 2000e-2 et seq.), 42 U.S.C.

§ 1981, and the ADEA (29 U.S.C. § 621 et seq.). The Court has supplemental jurisdiction 

over Plaintiff’s claims under the Arizona Civil Rights Act pursuant to 28 U.S.C. § 1367.

5. Parties That Have Not Been Served or Have Not Appeared

All parties have been served and have appeared.

6. Expected Additional Parties or Amendments to the Pleadings

None.

7. Contemplated Motions

Defendant Aerotek anticipates intends to serve Motion for Summary Judgment on 

the issue of whether or not Plaintiff was discriminated against on the basis of national 

origin, race, or age by Aerotek, and whether Plaintiff is entitled to recover damages in this 

case.

Defendant Edward Jones anticipates filing a dispositive motion on one or more of 

Plaintiff’s claims.

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400 E. VAN BUREN, SUITE 1900 PHOENIX, ARIZONA 85004-2202

8. Reference to a United States Magistrate Judge

The Parties agree that the case is not suitable for reference to a United States 

Magistrate Judge.

9. Status of Any Related Cases

Not applicable.

10. Issues Under the Mandatory Initial Discovery Pilot Project (“MIDP”)

The Parties do not anticipate any issues relating to preservation of information or to 

the disclosure or discovery of electronically stored information, including the form in 

which it should be produced. If such issues do arise, the Parties suggest that the Parties 

promptly attempt to resolve them and bring them to the Court only if necessary.

11. Nature of Discovery

A. Anticipated Discovery

Plaintiff:

Plaintiff has already requested Defendants for Admissions. Plaintiff will 

also request Production of Documents and Interrogatories pursuant to Rules

33, 34 and 36. Plaintiff may also subpoena any third parties for relevant 

documents relevant to Plaintiff’s claims.

Defendants:

Defendants intend to depose the Plaintiff and may also depose non-parties, 

currently unknown, who have knowledge regarding Plaintiff’s claims or 

otherwise can testify to the Plaintiff’s assignment with Edward Jones. 

Defendants also intend to depose Plaintiff’s expert witness, if any. 

Defendants anticipate serving initial discovery requests on Plaintiff pursuant 

to Rules 33, 34, and 36 in the near future. Defendants may propound further 

discovery requests in the future. Defendants will also subpoena any third 

parties for records relevant to Defendants’ defenses. At present, Defendants 

anticipate the location of discovery will occur entirely in Arizona.

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400 E. VAN BUREN, SUITE 1900 PHOENIX, ARIZONA 85004-2202

B. Suggested Changes to FRCP

At this juncture, the Parties do not wish to change the discovery limitations 

set forth in the Federal Rules of Civil Procedure, except that the Parties 

agree to limit the number of requests for admission, pursuant to Rule 36 of 

the Federal Rules of Civil Procedure, to (40) per Party. Defendants further 

request the Court limit the number of requests for production of documents, 

pursuant to Rule 34 of the Federal Rules of Civil Procedure, to forty (40) 

per Party, but Plaintiff opposes this request. 

C. Number of Hours for Each Deposition

Depositions shall be limited to seven hours each, as provided in Rule 

30(d)(1) of the Federal Rules of Civil Procedure. However, if either 

Defendant requires more than seven hours combined to complete Plaintiff’s 

deposition, the Parties will meet and confer as to a convenient and 

reasonable amount of additional time to allow Defendants the opportunity to 

do so.

12. When the Parties Served Their MIDP Discovery Responses

Pursuant to General Order 17-08, Defendant Aerotek served its MIDP discovery 

Responses on March 19, 2018; Plaintiff on March 26, 2018; and Defendant Edward Jones 

on March 30, 2018.

13. Proposed Deadlines

A. Deadline for MIDP Responses and Fact Discovery

The deadline for final supplementation of MIDP responses and the 

completion of fact discovery, including discovery by subpoena, shall be 

October 26, 2018. To ensure compliance with this deadline, the following 

rules shall apply:

i. Written Discovery. All interrogatories, requests for production, and 

request for admissions shall be served at least 45 days before the fact 

discovery deadline.

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ii. The Parties may mutually agree in writing, without Court approval, 

to extend the time provided for discovery responses under Rules 33, 

34, and 36 of the Federal Rules of Civil Procedure. Such agreedupon extensions, however, shall not alter or extend the discovery 

deadlines set forth in the Case Management Order.

B. Dates for Complete Disclosures of Expert Testimony

i. Plaintiff shall provide full and complete expert disclosures, as 

required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil 

Procedure, no later than July 27, 2018.

ii. Defendants shall provide full and complete expert disclosures, as 

required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil 

Procedure, no later than August 31, 2018.

iii. Rebuttal expert disclosures, if any, shall be made no later than 

September 14, 2018. Rebuttal experts shall be limited to responding 

to opinions stated by initial experts.

C. Deadline for Completion of all Expert Depositions

Expert depositions shall be completed no later than the discovery deadline 

of October 26, 2018.

D. Deadline for Filing Dispositive Motions

All dispositive motions shall be filed no later than December 7, 2018.

E. Date by Which Parties Will Engage in Settlement Talks

All Parties and their counsel shall meet in person and engage in good faith 

settlement talks no later than November 2, 2018.

14. Jury Trial Requests

Plaintiff requested a trial by jury. Defendants oppose this request. 

15. Estimated Length of Trial

The Parties estimate the trial will take no longer than three (3) to four (4) days.

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CERTIFICATE OF SERVICE

I do hereby certify that, on this 3rd day of May, 2018, I electronically transmitted 

the foregoing document to the Clerk’s Office using the CM/ECF System for filing and 

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants, and by 

email and/or U.S. First Class Mail if non-registrants:

Jania Mkunga

3519 East Tulsa Street

Gilbert, Arizona 85295

jmkunga@footprintspartners.com

Plaintiff Pro Per

Kristy Leah Peters, Esq.

Melissa Lori Shingles, Esq.

Littler Mendelson PC

2425 E. Camelback Rd., Suite 900

Phoenix, AZ 85016-2907

kpeters@littler.com

mshingles@littler.com

Attorneys for Defendant Edward D. Jones & Company

By: Leslie Boone

4837-7845-4879.6

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