Free Motion for Judgment as a Matter of Law - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, vs. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC. Defendants. DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW UNDER RULE 50(b) Defendants Mountain Coal Company, L.L.C., Arch Western Resources, L.L.C., and Arch Coal, Inc., by their attorneys, Holland & Hart LLP, hereby move for entry of judgment as a matter of law, pursuant to Fed. R. Civ. P. 50(b). In accordance with D.C.COLO.LCivR 7.1(A), Defendants state that they have conferred with counsel for Plaintiff Clawson regarding this motion; Plaintiff Clawson opposes the relief sought by this motion. I. INTRODUCTION

Federal Rule of Civil Procedure 50(b) "gives the trial court a last chance to order the judgment that the law requires." 7 Wright and Miller, FEDERAL PRACTICE & PROCEDURE § 2521 (2d ed. 1995), at 242. In this case, Rule 50(b) presents the Court with a final opportunity to enter judgment as a matter of law for Defendants due to the various legal deficiencies in Plaintiff Michael E. Clawson's claim for failure to accommodate under the Americans with Disabilities

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Act ("ADA"). Judgment as a matter of law is required in this case because there is no duty to accommodate a "regarded as" disability and, even if there were, Clawson did not offer sufficient evidence at trial to prove that he was regarded as disabled. Additionally, the statutory damage cap should be applied to reduce Clawson's compensatory damage award because the evidence is insufficient to support the jury's finding that all three Defendants were an integrated enterprise and because the Court's erroneous exclusion of evidence concerning the number of employees at each Defendant led to an improper denial of Defendants' motion for application of the cap. II. FACTUAL BACKGROUND

In its Order dated March 3, 2005 (Dkt. No. 280), the Court granted Defendants' Motion to Dismiss Plaintiff Clawson's wrongful termination claim and all four initial Plaintiffs' retaliation claims based on lack of subject matter jurisdiction (Dkt. No. 269). Then, in its March 14, 2005 Order (Dkt. No. 287), the Court granted in part and denied in part Defendants' Revised Motion for Summary Judgment, which had requested summary judgment as to all claims asserted by all four Plaintiffs (Dkt. No. 247). The three remaining claims ­ Plaintiff Clawson's claim for failure to accommodate his "regarded as" disability under the ADA and Plaintiff Dillon's claims for failure to accommodate his "regarded as" disability and for wrongful termination in violation of the ADA ­ proceeded to trial. On April 17, 2006, after the close of Plaintiffs' case, Defendants moved for judgment as a matter of law on the remaining claims, pursuant to Rule 50(a). At the time, the Court denied Defendants' motion in part, but reserved the issue of whether Plaintiffs had presented sufficient evidence for a reasonable jury to find that they were regarded as disabled. Defendants renewed their Rule 50(a) motion at the close of the evidence. The parties later briefed the issue of the

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sufficiency of the evidence on the "regarded as" disabled issue (Dkt. Nos. 420, 432 & 440). The jury found in favor of both Plaintiffs. Verdict Form (Dkt. 407). As to Clawson, the jury awarded $236,000 in economic damages and $250,000 in non-economic damages. Id. at 6. In its January 24, 2007 Order, the Court granted in part and denied in part Defendants' Rule 50(a) motion, finding that Clawson had presented sufficient evidence for a reasonable jury to find that he was regarded as disabled, but that Dillon had not (Dkt. No. 447). In that same Order, the Court also denied Clawson's motion to assess punitive damages, adopted the jury's advisory verdict on back pay, and reduced the back pay award by the amounts Clawson received in shortand long-term disability benefits. In its oral ruling following the evidentiary hearing on March 27, 2007, the Court denied Defendants' motion to reduce the non-economic damage award based on application of the statutory damage cap (Dkt. No. 423). Thus, on March 27, 2007, the Court entered judgment in favor of Plaintiff Clawson in the amount of $540,991.07, consisting of $219,011 in economic damages, $71,980.07 in interest on economic damages, and $250,000 in non-economic damages (Dkt. No. 457). The Court also entered judgment against Dillon. Id. III. A. ARGUMENT

LEGAL STANDARD UNDER RULE 50(b) A party who moves for but does not obtain judgment as a matter of law under Rule of

50(a) at the close of evidence may renew that motion pursuant to Rule 50(b) after the jury verdict and entry of judgment. Fed. R. Civ. P. 50; Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 126 S.Ct. 980, 985 (2006). Judgment as a matter of law is appropriate where the "`evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion.'" Riske v. King Soopers, 366 F.3d 1085, 1091 (10th Cir. 2004) (citation

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omitted) (reversing denial of Rule 50(b) motion because a reasonable jury could not find that plaintiff was harassed because of her sex). In considering whether such relief should be granted, the court draws all reasonable inferences in favor of the nonmoving party and does not make credibility determinations or weigh the evidence. Stewart v. Adolph Coors Co., 217 F.3d 1285, 1288-89 (10th Cir. 2000) (affirming grant of Rule 50(b) motion because the evidence was insufficient to support verdict for plaintiff on race discrimination claim). Applying this standard, Defendants are entitled to judgment as a matter of law, as more fully set forth below. B. THERE IS NO DUTY TO ACCOMMODATE A "REGARDED AS" DISABILITY Clawson did not contend at trial that he was actually disabled within the meaning of the ADA. Rather, his failure to accommodate claim was premised on his contention that Mountain Coal Company, L.L.C. ("Mountain Coal") regarded him as disabled. Defendants have maintained throughout this case that no such claim exists, as the ADA does not require the accommodation of a "regarded as" disability. This Court disagreed, ruling against Defendants on that issue in its Summary Judgment Order (Dkt. No. 287 at 12-16). Since then, the Tenth Circuit similarly held that "an employer must reasonably accommodate employees regarded or perceived as disabled." Kelly v. Metallics West, Inc., 410 F.3d 670, 676 (10th Cir. 2005). However, given that the circuits are evenly split on this issue (4-4), it is possible that the Tenth Circuit may reconsider the issue en banc or that the Supreme Court may resolve the circuit split in Defendants' favor. Compare Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1232-33 (9th Cir. 2003) (no duty to accommodate a "regarded as" disability); Weber v. Strippit, Inc., 186 F.3d 907, 916-917 (8th Cir. 1999) (same); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999) (same); Newberry v. East Texas State Univ., 161 F.3d 276, 280 (5th Cir. 1998)

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(same), with D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1239 (11th Cir. 2005) (duty exists to accommodate a "regarded as" disability); Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 773-76 (3d Cir. 2004) (same); Katz v. City Metal Co., Inc., 87 F.3d 26, 33 (1st Cir. 1996) (same). Because Clawson's claim rests solely on his contention that Mountain Coal failed to accommodate his alleged "regarded as" disability, and because the courts may yet resolve this issue in Defendants' favor, that is, determine that no such claim exists under the ADA, Defendants submit that they are entitled to judgment as a matter of law. 1 C. THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE JURY'S FINDING THAT CLAWSON WAS REGARDED AS DISABLED Even assuming that the ADA supports a claim for failure to accommodate a "regarded as" disability, Clawson failed to present sufficient evidence at trial to establish such a claim. In order to be regarded as disabled within the meaning of 42 U.S.C. § 12102(2)(C), a plaintiff must show that his employer mistakenly believes either that he has a "physical impairment that substantially limits one or more major life activities" or that his "actual, nonlimiting impairment substantially limits one or more major life activities." Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). Clawson claims that Mountain Coal regarded him as being limited in the major life activity of working. 2 However, because he failed to present sufficient evidence on this issue, his failure to accommodate claim should be dismissed as a matter of law. The Tenth Circuit recently expressed that "it is particularly difficult for a plaintiff to Defendants recognize that the Court is bound by Metallics West, but respectfully seek to preserve this issue for appeal. See generally Unitherm Food Sys., 546 U.S. at 394. The Supreme Court has never explicitly held (but only assumed) that "working" is a major life activity under the ADA. See Sutton, 527 U.S. at 492. Nonetheless, as discussed infra, even assuming that working is such a major life activity, Clawson failed to offer sufficient evidence at trial to show that he was regarded as being substantially impaired in the activity of working.
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prevail on this type of claim," i.e., a claim that a plaintiff was regarded as disabled in the activity of working. EEOC v. Heartway, 466 F.3d 1156, 1162 (10th Cir. 2006) (citing Ross v. Campbell Soup Co., 237 F.3d 701, 709 (6th Cir. 2001)). As the Ross court explained, Proving that an employee is regarded as disabled in the major life activity of working takes a plaintiff to the farthest reaches of the ADA. It is a question embedded almost entirely in the employer's subjective state of mind. Thus, proving the case becomes extraordinarily difficult. Not only must a plaintiff demonstrate that an employer thought he was disabled, he must also show that the employer thought that his disability would prevent him from performing a broad class of jobs. As it is safe to assume employers do not regularly consider the panoply of other jobs their employees could perform, and certainly do not often create direct evidence of such considerations, the plaintiff's task becomes even more difficult. 237 F.3d at 709 (quoted in Heartway, 237 F.3d at 1162). Essentially, the plaintiff in such a case must show that he was treated adversely, not simply because of his impairment, but because the defendant regarded that impairment as substantially limiting his ability to work at all. See Conant v. City of Hibbing, 271 F.3d 782, 785 (8th Cir. 2001). For a plaintiff to prevail on a claim that he is regarded as substantially limited in the activity of working, he must show that he is regarded as having a condition that significantly restricts his "ability to perform either a class of jobs or a broad range of jobs as compared to similarly trained persons." Heartway, 237 F.3d at 1162 (citation and quotation marks omitted). "The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id. (quoting 29 C.F.R. § 1630.2(j)(3)(i)) (internal quotation marks omitted). A "class of jobs" is defined in the EEOC regulations as "[t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which

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the individual is also disqualified because of the impairment." 29 C.F.R. § 1630.2(j)(3)(ii)(B). Likewise, a "broad range of jobs" is defined as "[t]he job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment." Id. § 1630.2(j)(3)(ii)(C). See also Heartway, 237 F.3d at 1163-67 (applying these definitions). Here, Clawson failed to present sufficient evidence for a reasonable jury to conclude that he was regarded as substantially limited in his ability to perform either a class of jobs or a broad range of jobs. First, he did not present any evidence of the job market for "the average person having comparable training, skills and abilities." Bristol v. Bd. of County Comm'rs, 281 F.3d 1148, 1161 (10th Cir. 2002) (expert testimony that plaintiff would be unable to perform "many jobs" in the relevant geographic area and had "many limitations" was insufficient to prove that he was substantially limited in his ability to work); see also Bolton v. Scrivner, Inc., 36 F.3d 939, 944 (10th Cir. 1994) (affirming dismissal of ADA claim because "[t]he evidence does not address [plaintiff's] vocational training, the geographical area to which he has access, or the number and type of jobs demanding similar training from which [plaintiff] would also be disqualified"). To satisfy his burden, Clawson would not only have had to show that he was regarded as being unable to perform his prior Underground Production/Utility Miner ("UP/UM") job, which required him to operate vehicles without good shocks over rough roads, he would also have had to show either (1) the number and types of jobs utilizing similar training, knowledge, skills or abilities, within the relevant geographical area, from which he would also be disqualified because of his perceived inability to operate vehicles without good shocks over

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rough roads, i.e., a class of jobs, or (2) the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within the relevant geographical area, from which he was also disqualified because of such perceived inability, i.e., a broad range of jobs. He did neither. Second, Clawson failed to present sufficient evidence that Mountain Coal subjectively believed he was unable to work in a class of jobs or broad range of jobs. See Heartway, 466 F.3d at 1163-64 (setting forth plaintiff's burden of proof). Clawson's only evidence on this issue was the alleged "no restrictions" policy and the alleged comment by Safety Director Bill Olsen that Clawson "probably would not be returning to the mining industry." However, the evidence was that Mountain Coal did allow some employees, such as Jose Hernandez and Bart Rolf, to work with restrictions so long as those restrictions did not prevent them from performing the essential functions of their jobs. See also Henderson v. Ardco, Inc., 247 F.3d 645, 653 (6th Cir. 2001) (rejecting argument that "no restrictions" policy could in and of itself establish that plaintiff was regarded as substantially limited in her ability to work). Moreover, as Clawson himself admitted ­ and as was confirmed by his own notes, Ex. 162, the transcript of his interview with MSHA, Ex. 196, and his affidavit to the CCRD, Ex. 207 ­ he was told by representatives of Mountain Coal that the so-called "no restrictions" policy did not really mean "no restrictions" at all, but rather, simply meant that he could not return to work with restrictions that prevented him from performing the essential functions of his job. Further, the comment attributed to Olsen ­ a comment alleged to have been made at the same time Olsen informed Clawson about a vacancy in the warehouse at the West Elk Mine, which certainly constitutes a job "in the mining industry" ­ is insufficient to show that Clawson was "regarded as" disabled. This is particularly so given that Clawson failed to present any

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evidence that "the mining industry" comprises a class of jobs or a broad range of jobs as required for a finding that he was "regarded as" disabled. See generally Sutton, 527 U.S. at 492 ("If jobs utilizing an individual's skills . . . are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs."); Heartway, 466 F.3d at 1163 n.6 (noting that under EEOC regulations and interpretive guidance, classes of jobs may include such broad categories as "heavy labor jobs" and "jobs that involve manual labor"). Finally, Olsen was not the decisionmaker as to Clawson's termination, but only played a minor role in providing input in the process. In short, Clawson did not present sufficient evidence for a reasonable jury to conclude that Mountain Coal regarded him as being unable to perform a class of jobs or a broad range of jobs in the relevant geographic area, as opposed to only being unable to perform the duties of his specific job (or even any job at the mine). Accordingly, the Court should enter judgment in favor of Defendants on this claim. 3 D. THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE JURY'S FINDING THAT DEFENDANTS CONSTITUTED AN INTEGRATED ENTERPRISE Clawson was formerly employed by Mountain Coal. The other two defendants, Arch Western Resources, L.L.C. ("AWR") and Arch Coal, Inc. ("Arch Coal"), are first- and secondtier parent companies of Mountain Coal and, thus, may be liable for the acts of Mountain Coal only if they each acted as an "integrated enterprise" with Mountain Coal. However, there is "a strong presumption that a parent company is not the employer of its subsidiary's employees, and
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Defendants recognize that the Court considered these issues and ruled against Defendants in its January 24, 2007 Order, at 8-20. However, Defendants respectfully request that the Court reconsider its ruling in light of the matters discussed herein. By this motion, Defendants also seek to preserve this issue for appeal. See generally Unitherm Food Sys., 546 U.S. at 394.

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the courts have found otherwise only in extraordinary circumstances." Frank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir. 1993). To overcome this strong presumption under the integrated enterprise test applied in this case, a plaintiff must offer sufficient evidence as to the four factors of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1070 (10th Cir. 1998). Of these factors, the most important is the second, centralized control of labor relations. Id. at 1069-70. Because Clawson did not present sufficient evidence on any of the four factors ­ and, in particular, on the critical second factor ­ neither AWR nor Arch Coal can be liable for the acts allegedly taken by Mountain Coal. 4 Considering the first factor, interrelation of operations, Clawson did not offer sufficient evidence to show that either AWR or Arch Coal exercises control over Mountain Coal's operations that "exceeds the control normally exercised by a parent corporation." Frank, 3 F.3d at 1362. Applying the factors discussed by the Tenth Circuit in Frank, Clawson did not show (1) that the parents keep the subsidiary's books, issue its paychecks, and pay its bills, (2) that the parents and the subsidiary have common employees, a common headquarters, common advertising, and property rental payments going from the subsidiary to the parents, or (3) that the parents and the subsidiary share services, equipment, employees, and office space and that the parents control payroll and benefits for the subsidiary. Id. at 1363.

Again, Defendants recognize that the Court considered and ruled against them on this issue in its January 24, 2007 Order, at 6-7, n. 6. However, Defendants respectfully request that the Court reconsider its ruling, based upon the matters discussed herein. Further, by this motion, Defendants also seek to preserve this issue for appeal. See generally Unitherm Food Sys., 546 U.S. at 394.

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As to AWR, Clawson showed only that one document lists Mountain Coal's address as the same address used by AWR, that AWR is listed as his employer on some W-2 forms, that Mountain Coal's president ultimately reports to AWR, and that disability benefits may have come from AWR. Clawson offered even less evidence relating to Arch Coal. None of his evidence demonstrates any substantial level of control over Mountain Coal's operations, particularly in light of the undisputed evidence that Mountain Coal's only operations are in Gunnison County, Colorado, that Mountain Coal has no offices or employees at AWR's St. Louis address, and that Mountain Coal management runs the mine on a day-to-day basis and administers its own policies for the mine. See also Frank, 3 F.3d at 1362 (mere fact that project supervisor reported to an officer of parent corporation was irrelevant, as it is to be expected that some employees of the subsidiary will ultimately report to the parent); Calvert v. Midwest Restoration Serv., Inc., 35 Fed. Appx. 798, 802 (10th Cir. 2002) (affirming dismissal of claims on integrated enterprise issue where parent and subsidiary had "separate customers, separate payroll accounts, separate insurance policies, and separate bank accounts," had "distinct phone numbers and physical addresses," and common bookkeeper was paid separately by each entity). Turning to the second and most critical factor, centralized control of labor relations, Clawson did not present sufficient evidence to show that any entity other than Mountain Coal was responsible for "`ma[king] the final decisions regarding employment matters related to the person claiming discrimination'" or that AWR or Arch Coal "control[led] the day-to-day employment decisions" of Mountain Coal. Frank, 3 F.3d at 1363 (citations omitted). The undisputed evidence at trial revealed that Mountain Coal made both the decision to terminate Clawson and the decision not to continue to offer light-duty work at the mine.

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There was no evidence whatsoever of any involvement by AWR in these decisions or any other employment issues. As to Arch Coal, the only evidence presented by Clawson was that Mountain Coal sought legal advice from Arch Coal's in-house counsel prior to making the decision to terminate him, that Arch Coal (or AWR) establishes benefit plans for its subsidiaries, that Arch Coal authored Mountain Coal's short-term disability ("STD") plan, that Arch Coal's name appeared on an employment application, and that Langrand once indicated, after Arch Coal acquired the mine, that Mountain Coal would be "standardizing numerous policies and procedures based on Arch Coal, Inc.'s business needs." However, the use of a parent company's in-house legal counsel is not an indication of centralized control, given that the ultimate decision was still made by Mountain Coal. See Lockard, 162 F.3d at 1071 (second factor not established, despite fact that employee of parent responded to EEOC charge filed by employee of subsidiary). The fact that Arch Coal authored the STD policy is also irrelevant, as it was the application of that policy to Clawson, and not the policy itself, that was challenged in this case, and the undisputed evidence was that the decision was made at the Mountain Coal level, by Mountain Coal President Gene DiClaudio, based on Langrand's recommendation. See, e.g., id. at 1070-71 (second factor not established, despite fact that franchisee used franchisor's employment policies); Frank, 3 F.3d at 1363 (second factor weighed in favor of parent, despite fact that plaintiff cited parent company's EEO policies and that parent company issued other policies in its capacity as ERISA plan administrator for subsidiaries, because evidence did not show that parent company substantively controlled employment decisions on a daily basis). For these same reasons, the other evidence offered by Clawson is also insufficient to prove centralized control over labor relations. See also Praseuth

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v. Newell-Rubbermaid, Inc., 219 F. Supp.2d 1157, 1176-77, 1181-82 (D. Kan. 2002) (no integrated enterprise where parent corporation handled payroll, prepared employee newsletters, and provided benefits and retirement programs). Regarding the third factor, common management, Clawson did not show that the three entities had anything more than the normal overlap in officers and directors. Some degree of common management is expected in a parent-subsidiary relationship where the subsidiary's performance ultimately impacts the parent. See Frank, 3 F.3d at 1362 ("the top officer of a subsidiary is, at some point, always held accountable to an officer of the parent corporation"); see also Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 778 (5th Cir. 1997) (stating that "[c]ommon management and ownership are ordinary aspects of a parent-subsidiary relationship" and finding no integrated enterprise despite fact that corporations at issue shared a common chairman, CEO, president and chief operating officer). Here, the evidence showed only that Mountain Coal's president reports to the president of AWR, who, in turn, ultimately reports to Arch Coal, and that the three companies' boards share some common directors. Such evidence is unremarkable and does not establish common management, particularly since Clawson did not show that any of the common officers or directors had anything to do with the decisions at issue in this case or with the day-to-day operations of the mine. See, e.g., Lockard, 162 F.3d at 1071 ("some common management" insufficient to meet standard); Frank, 3 F.3d at 1364 ("[o]ne common manager is insufficient to establish a disputed material fact under this prong of the integrated enterprise test"). See also Yoder v. Honeywell Inc., 104 F.3d 1215, 1221 (10th Cir. 1997) ("[i]dentity of directors . . . `has been held to be innocuous where, as here, there is no evidence that through the board the parent

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controlled the subsidiary'") (citations omitted) (applying instrumentality test). In fact, the one Mountain Coal officer who was not common to AWR or Arch Coal, DiClaudio, actually ran Mountain Coal and made the decisions at issue in this case, and while he was ultimately accountable to AWR President Robert Shanks, there is no evidence that Shanks (or anyone else at AWR or Arch Coal) made the decision to terminate Clawson. Given that Clawson did not present sufficient evidence on the first three factors, the mere fact that Mountain Coal, AWR, and Arch Coal share common ownership and financial control is insufficient to establish an integrated enterprise. "[T]his factor, standing alone, can never be sufficient to establish parent liability." Frank, 3 F.3d at 1364 (no liability, although parent was sole shareholder of subsidiary); see also Lockard, 162 F.3d at 1071 (fact that subsidiary was wholly-owned by parent not enough to allow finding of integrated enterprise). Thus, the Court should enter judgment as a matter of law on this issue in favor of Defendants. 5 E. THE COURT ERRED IN EXCLUDING EVIDENCE CONCERNING THE NUMBER OF EMPLOYEES AT EACH DEFENDANT AND THEREBY DENYING DEFENDANTS' MOTION FOR APPLICATION OF THE STATUTORY DAMAGE CAP During the March 27, 2007 hearing on Defendants' Motion for Application of Statutory Damage Cap (Dkt. No. 423), the Court erroneously excluded testimony from Pat Madras, Manager of Corporate HRIS for Arch Coal. Defendants attempted to elicit testimony from Madras concerning the correct number of employees for each Defendant for the relevant years of
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A ruling in favor of Defendants on this issue would necessarily affect the Court's application of the statutory damage cap, because only the employees of Mountain Coal would be considered in applying the cap. Accordingly, should the Court grant Defendants' motion on this ground, Defendants respectfully request that the Court reconsider its oral ruling denying Defendants' Motion for Application of Statutory Damage Cap (Dkt. No. 423) and, based upon the evidence admitted at the March 27, 2007 hearing, apply the $200,000 damage cap under 42 U.S.C. § 1981a(b)(3)(C).

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1998, 1999, and 2000. However, because Madras (understandably) had not memorized the various figures, she sought to testify by referring to a chart based upon reports run from Defendants' personnel management software system (Oracle). The Court sustained an objection to the admission of the chart itself and further precluded Madras from using the chart in any manner to testify, holding that she could not refer to the chart to refresh her memory under Fed. R. Evid. 612, that the chart was could not be used as a recorded recollection under Fed. R. Evid. 803(5), and that the underlying computer records upon which the chart was based were not business records under Fed. R. Evid. 803(6). These evidentiary rulings were in error. Because the admission of the chart and/or Madras' testimony referencing it would have compelled a finding that Defendants collectively employed fewer than 500 employees during the years in question, Defendants seek judgment as a matter of law reducing the non-economic damage award in favor of Clawson to $200,000, pursuant to 42 U.S.C. § 1981a(b)(3)(C). IV. CONCLUSION

For the foregoing reasons, the Court should enter judgment as a matter of law in favor of Defendants, as more fully set forth above. Dated: April 10, 2007. Respectfully submitted, s/ Jeffrey T. Johnson Jeffrey T. Johnson Christina Gomez HOLLAND & HART LLP D.C. Box 6 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 (303) 295-8000 ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE I hereby certify that on April 10, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] (J. Keith Killian) [email protected] (Damon Davis) I am not aware of any non CM/ECF participants in this matter requiring service by other means.

s/ Jeffrey T. Johnson Jeffrey T. Johnson Christina Gomez Attorneys for Defendants HOLLAND & HART LLP 555 Seventeenth Street, Ste. 3200 Post Office Box 8749 Denver, Colorado 80201 Telephone: (303) 295-8000 Facsimile: (303) 295-8261 E-mail: [email protected] [email protected]

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