Free Brief - 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' BRIEF IN SUPPORT OF JUDGMENT AS A MATTER OF LAW UNDER RULE 50(a)
On April 17, 2006, after the close of Plaintiffs' case, Defendants moved for judgment as a matter of law pursuant to Rule 50(a) of the Fed. R. Civ. P. The Court reserved ruling as to the portion of Defendants' motion asserting that Plaintiffs had failed to present sufficient evidence for a reasonable jury to find, as a matter of law, that Plaintiffs had been "regarded as disabled" by Defendants in the major life activity of working, the first element of each of the ADA claims at issue. Defendants submit this brief addressing the legal standards for establishing such element and respectfully request that the Court now grant their motion for judgment as a matter of law as to Plaintiffs' ADA claims.1

1

In the event such motion is denied and judgment is entered in favor of Plaintiffs, Defendants reserve the right to file a motion for judgment as a matter of law under Rule 50(b) or, in the alternative, for a new trial, under Rule 59.

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I.

Standard for Judgment as a Matter of Law Rule 50(a)(1) of the Fed. R. Civ. P. provides that, if a party has been fully heard on an

issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may grant a motion for judgment as a matter of law against that party. See also Bristol v. Bd. of Cty. Commissioners, 281 F.3d 1148, 1161 (10th Cir. 2002). In other words, "a trial judge may direct a verdict if the governing law applied to the evidence can yield only one outcome." In re Ribozyme Pharmaceuticals, Inc. Securities Litigation, 209 F. Supp.2d 1106, 1110 (D. Colo. 2002). See also Bristol, 281 F.3d at 1161. The evidence, and all inferences drawn from the evidence, are to be construed in the light most favorable to the nonmoving party. Aquilino v. Univ. of Kansas, 268 F.3d 930 (10th Cir. 2001) (reversing denial of judgment as a matter of law and directing district court to enter judgment for defendant). "[I]f reasonable minds could differ as to the import of the evidence..., a verdict should not be directed." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986). However, "Rule 50 `allows the trial court to remove cases or issues from the jury's consideration when the facts are sufficiently clear that the law requires a particular result.'" Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1089 (10th Cir. 2001) (citations omitted). Because reasonable minds could not differ as to the evidence presented during Plaintiffs' case and the law clearly requires a particular result, the Court should grant judgment as a matter of law to Defendants. II. Plaintiffs Failed to Present Legally Sufficient Evidence That They Were "Regarded As" Disabled in the Major Life Activity of Working. Under the ADA, a "disability" is defined as: (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such

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an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). In this case, Plaintiffs proceeded solely under the "regarded as" prong of this definition. The Supreme Court has held that to be "regarded as disabled," a plaintiff must show: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits or more major life activities, or (2) a covered entity mistakenly believes that the person's actual, nonlimiting impairment substantially limits one or more major life activities. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). The evidence was undisputed that Clawson and Dillon each reported an on-the-job injury and had an impairment resulting from such injury. Both Plaintiffs claim that Defendants regarded them as being substantially limited in the major life activity of working.2 Because neither Plaintiff presented sufficient evidence as to this element, each of their ADA claims should be dismissed as a matter of law. The purpose of the "regarded as" prong of the ADA is to protect individuals "rejected from a job because of the `myths, fears and stereotypes' associated with disabilities." Sutton, 527 U.S. at 489-90, quoting 29 C.F.R. Pt. 1630, App. § 1630.2(l). The test is not whether a defendant treated a plaintiff adversely because of that plaintiff's impairment, but whether defendant treated a plaintiff adversely because it regarded him as having an impairment that substantially limits one or more major life activities. See Conant v. City of Hibbing, 271 F.3d 782, 785 (8th Cir. 2001). "[A]n employer does not necessarily regard an employee as having a
2

Defendants do not concede that "working" is appropriately designated as a major life activity under the ADA. In Sutton, 527 U.S. at 483, the Supreme Court suggested that the EEOC's inclusion of "working" was problematic. The Court assumed, without deciding, that working is a major life activity. 527 U.S. at 492.

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substantially limiting impairment simply because it believes [he] is incapable of performing a particular job." Pryor v. Trane Co., 138 F.3d 1024, 1028 (5th Cir. 1998) (employer merely believed that at the time, there were no jobs available that fit the employee's restrictions). An employer "is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job." Sutton, 527 U.S. at 490-91 (emphasis in original). A. Working

According to the EEOC Regulations, an individual is substantially limited in the activity of "working" if he is: [s]ignificantly restricted in the ability to perform either a class of jobs or broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 C.F.R. § 1630.2(j)(3)(i). See also Sutton, 527 U.S. at 491 ("When the major life activity under consideration is that of working, the statutory phrase `substantially limits' requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs."). As adopted by the Tenth Circuit, the EEOC regulations provide further guidance for the analysis of whether a plaintiff has shown that a defendant "regarded" an impairment as substantially limiting the major life activity of working "by defining what is meant by `a class of jobs' or `a broad range of jobs.'" MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1444 (10th Cir. 1996). See also Nielsen v. Moroni Feed Co., 162 F.3d 604, 612 n. 13 (10th Cir. 1998); Sutton v. United Air Lines, Inc., 130 F.3d 893 (10th Cir. 1997), aff'd, 527 U.S. 471 (1999). A "class 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 jobs utilizing similar training, knowledge, skills

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or abilities, within that geographical area, from which the individual is also disqualified because of the impairment." 29 C.F.R. § 1630.2(j)(3)(ii)(B). 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." 29 C.F.R. § 1630.2(j)(3)(ii)(C). "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." Sutton, 527 U.S. at 492. 1. Plaintiffs Did Not Present Evidence as to a Class of Jobs or a Broad Range of Jobs

For a "regarded as" claim, it is Plaintiffs' burden to demonstrate that Defendants mistakenly believed they were significantly restricted in either a class of jobs or broad range of jobs. Sutton, 527 U.S. at 489. Plaintiffs failed to present any evidentiary basis for the jury to conclude that they were regarded as substantially limited in their ability to perform either a class of jobs or a broad range of jobs. Plaintiffs did not present any evidence of the job market for "the average person having comparable training, skills and abilities," as the regulations and the Tenth Circuit require. Bristol, 281 F.3d at 1161-62, citing Bolton v. Scrivner, Inc., 36 F.3d 939, 944 (10th Cir. 1994) (affirming summary judgment dismissing an 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."). See also Nielsen, 162 F.3d at 611-12; Sutton, 130 F.3d at 903-06; MacDonald, 94 F.3d at 1444-45. Plaintiffs also failed to present evidence that Defendants

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perceived them as unable to work in a broad range of jobs, as defined in the regulations and set out in the relevant Tenth Circuit authority. In Bristol, the plaintiff did present the testimony of one expert to attempt to establish his substantial limitation in the activity of working. The expert testified that the plaintiff would not be capable of performing "many jobs" in the relevant geographic area and had "many limitations" Id. at 1162. The Tenth Circuit held that such testimony was insufficient to prove that the plaintiff was substantially limited in his ability to work, citing to the Supreme Court's opinion in Sutton that the impairment "must prevent the plaintiff from working in a substantial class of jobs or a broad range of jobs in various classes." Id., citing Sutton, 527 U.S. at 492-93 (stating that, even assuming plaintiffs could not work as global airline pilots, they had not produced evidence that they could not work as regional pilots or pilot instructors, among other positions). Similarly, in Gasser v. Dist. of Columbia, 442 F.3d 758 (D.C. Cir. 2006), the plaintiff presented expert testimony regarding the jobs he was precluded from performing, but based only on a review of the light duty job he had been performing temporarily, rather than the restriction reviewed by the employer. Thus, the plaintiff failed to offer any evidence of the number of jobs he would be unable to perform as a result of his actual restriction and whether, based on that restriction, he was precluded from a broad range or a substantial class of jobs. Id. at 764-65, citing, inter alia, Duncan v. Wash. Metro. Area Transit Auth., 240 F.3d 1110, 1115 (D.C. Cir. 2001) (en banc), and Giordano v. City of New York, 274 F.3d 740, 749 (2d Cir. 2001) ("The record contains no evidence from which we can infer that the [police department] thought, or had grounds for thinking, that other jobs in the public or private sector...carry the same nature or

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degree of risk."). On this basis, the D.C. Circuit found that the defendant was entitled to judgment as a matter of law, since the plaintiff was on notice, before the close of all evidence, of the evidentiary deficiencies in his case. Id. at 765-66. See also Duncan, 240 F.3d 1110 (reversing denial of defendant's post-trial motion for judgment as a matter of law due to plaintiff's failure to offer any significantly probative evidence of the number and types of position available in his local job market so as to demonstrate that his back impairment substantially limited ability to work). Plaintiffs in this case did not present any evidence whatsoever as to whether Defendants regarded them as substantially limited in their ability to perform either a class of jobs or a broad range of jobs, as those terms are defined in the regulations and the applicable case law. If the evidence presented by the plaintiffs in Bristol and Gasser was insufficient, as those courts held, then the complete lack of evidence from Plaintiffs here requires the dismissal of their claims, as a matter of law. 2. The No Restrictions Policy Does Not Mean that Plaintiffs Were "Regarded As" Substantially Limited in the Activity of Working

Plaintiffs contend that by eliminating restricted or light duty and instituting a "no restrictions" policy, Defendants regarded them as unable to perform a class of jobs or broad range of jobs, since they each had restrictions. Neither the elimination of light or restricted duty nor the evidence presented as to the implementation and application of the "no restrictions" policy provides the necessary evidentiary basis to show that Defendants regarded Plaintiffs as substantially limited in a class or broad range of jobs. It is undisputed that by May 27, 1999, Mountain Coal had eliminated the last of its light duty assignments, after Clawson reached MMI and was given his permanent restrictions.

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Plaintiffs equate the elimination of light duty assignments with "regarding" impaired employees as disabled, which is contrary to established law. Employers are not required to create positions, including light duty assignments, under the ADA. Martin v. Kansas, 190 F.3d 1120, 1133 (10th Cir. 1999). Rather, employers are simply required to provide a reasonable accommodation, if possible, that would allow a disabled employee to perform the essential functions of his or her job or a vacant, available job for which the employee is qualified. Similarly, employers are not required to convert temporary light duty assignments or positions to permanent positions for employees with disabilities as an accommodation. Matthews v. The Denver Post, 263 F.3d 1164, 1169 (10th Cir. 2001) (citation omitted). Therefore, it is incorrect as a matter of law for Plaintiffs to assert that Mountain Coal's elimination of light duty shows that it regarded impaired employees as disabled, as such a finding would be tantamount to holding that all "impaired" employees are disabled and that an employer is required to have and maintain light duty in order not to violate the ADA. Furthermore, Plaintiffs equate the "no restrictions" policy with a "100% healed policy," which they argue, citing to cases outside the Tenth Circuit, Johnson v. Paradise Valley Unified School Dist., 251 F.3d 1222 (9th Cir. 2001), and Henderson v. Ardco, Inc., 247 F.3d 645 (6th Cir. 2001), is evidence that employees with restrictions were regarded as disabled. At the Rule 50(a) argument, Plaintiffs claimed that Defendants' policy prevented anyone who is restricted from returning to any job at the mine, misstating the evidence that they themselves had presented. First, there was absolutely no evidence presented that Defendants had a "100% healed" policy that applied to all employees at all jobs at the mine. It is undisputed that Mountain Coal

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had a policy stating that "hourly employees" could not return to work without a doctor's release stating that they had "no restrictions." It also is undisputed, based on testimony presented by witnesses called by Plaintiffs themselves, that, following the elimination of light duty and the implementation of the "no restrictions" policy, Mountain Coal allowed some employees, such as Jose Hernandez and Bart Rolf, to work with restrictions. Defendants explained, including to Clawson himself, as demonstrated by his notes and testimony, that such employees were allowed to work with restrictions so long as their restrictions did not prevent them from performing the essential functions of their job. Clawson was told that, so long as he had "this" restriction, he could not return to his job. Dillon testified that, when he allegedly called Langrand after reaching MMI, he was told that the company would have to review his restrictions.3 In both cases, such statements are contrary to what Plaintiffs' counsel characterized as a blanket "no restrictions" or "100% healed" policy. Faced with a policy and circumstances substantially similar to the one at hand, another District Court engaged in a thoughtful, detailed analysis in reaching its conclusion that a similar policy was not a violation of the ADA, ultimately granting summary judgment to the employer. Beveridge v. Northwest Airlines, Inc., 259 F. Supp.2d 838 (D. Minn. 2003). The court stated that the policy did not stand alone, and was "not so monolithic, in its import, so as to displace all of the other evidence." Id. at 848. The court noted that "the ADA does not prohibit the Defendant from having a policy, which would require that persons, who were out on sick or medical leave,

3

Although Langrand denies that any such telephone call ever occurred, Defendants recognize that this evidence must be considered in the light most favorable to Plaintiffs.

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but who did not meet the definition of a disabled person under the ADA, be healed before returning to work." Id. at 849 Moreover, the court in Beveridge found that the policy, like the one here, did not force the employee to demonstrate that he was physically capable of performing a broad range or class of jobs, but rather that he was able to perform the duties of his specific job. Id. at 848-49. Finally, the court noted that, like here, the company had other policies concerning the accommodation of disabled individuals, that notwithstanding the "no restrictions" policy, the plaintiff applied for another position (which he did not receive because he was not qualified), and plaintiff stated an awareness of other employees who had returned to work with restrictions. Id. at 849-50 & n.5. Like in Beveridge, the evidence presented during Plaintiffs' case shows that individual restrictions were reviewed, Defendants had a policy requiring accommodation of disabled individuals, Clawson applied and was interviewed for another position (which he did not receive because he was not qualified), and there were other employees who returned with restrictions. At the Rule 50(a) argument, Plaintiffs relied on two cases that are clearly distinguishable and, in fact, do not support their position. In Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222 (9th Cir. 2001), the plaintiff testified that she was told that she could not return with a limited release, as opposed to a full release. Although the company denied making such a statement, in stark contrast to the employee testimony in this case, two other employees testified that they also had been told that they could not return to work with a limited release and, unless they obtained a full release, they would be terminated. Id. at 1224. There was no evidence of any employees being allowed to return to work with any type of limited release. Moreover, there

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was no discussion of an EEO policy recognizing the company's obligations under the ADA and requiring reasonable accommodation for known disabilities. Ultimately, the plaintiff in Johnson was forced to resign because she had only a limited release. Three weeks later, she obtained a full release and, over the next several months, applied for 13 different positions, which as to all she was refused even an interview. In fact, each of her applications was marked "DNP" for "do not process." Although the court found the evidence far from overwhelming, the Ninth Circuit reversed the district court's grant of judgment as a matter of law to the defendant. The Ninth Circuit held that, among other things, the defendant's refusal to even consider her for thirteen other jobs, despite her applications, and the defendant's blanket policy of refusing to accept partial releases supported the jury's finding that the defendant regarded the plaintiff as unable to perform any job. In addition to the difference in evidence, it is significant to note that the jury instructions in Johnson contained "no discussion of the class or broad range of jobs requirement" and the court stated that the defendant could not now challenge the absence of such a discussion since it had stipulated to the instruction. Id. at 1227-28. In Henderson, the plaintiff appealed the grant of summary judgment to her employer and the Sixth Circuit reversed and remanded for trial. 247 F.3d at 647. After injuring her back, plaintiff was told by the plant manager that company policy required her to be 100% to work there. Id. The record on summary judgment in Henderson, in contrast to the record at the close of Plaintiffs' case here, indicated that defendant's "100% healed rule" was "well-known and consistently applied, at least with regard to lifting restrictions." Id. Moreover, the plant manager stated "there is not a job in the plant that her restrictions would not bump into," which, on

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summary judgment, the court found, if proven, could be interpreted as a broad statement supporting a perceived disability. Id. at 651. Notably, the court went on to state that even if the plaintiff was able to show that the company perceived her as unable to do a larger class of manufacturing jobs in the plant, as possibly indicated by the manager's statement, she still would have to present evidence at trial that the larger class is sufficiently substantial to satisfy Sutton's requirements. Id. The court specifically noted that, while at the summary judgment stage, "Henderson has presented little evidence to show that manufacturing represents a significant portion of the jobs locally available to her, this will ultimately be part of her burden [at trial] in showing she was perceived as `substantially impaired' in working" in the relevant geographic area. Id. at 653, n. 5. The Henderson court also was careful to note that a 100% healed rule is only a violation of the ADA if applied to a disabled person. In a "regarded as" case, it is important to look at the business and types of jobs to which the alleged rule is applied. Specifically, "if the employer had only a set of relatively physically demanding jobs available and prevented a plaintiff from working these jobs, the employer would not necessarily be `regarding' the plaintiff as disabled...The variability and type of jobs available goes to the narrowness of the employment class and whether the individual is disabled." Id. at 653, n. 6. If, for example, the employer knows that the jobs to which it applies the "no restrictions" rule have significant physical demands beyond those consistent with other jobs requiring similar skills in the same geographic area, then the employer's actions are permissible. Id. at 654. The Sixth Circuit determined that, at the summary judgment stage, plaintiff had made at least an initial showing warranting a trial and, therefore, reversed the grant of summary judgment

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and remanded for trial. However, it is clear from the opinion that, in order to prevail at trial, the plaintiff would have to come forward with additional evidence as to the class and/or broad range of jobs in which she was perceived as unable to work. Even viewed in the light most favorable to Plaintiffs, any so-called "no restrictions" policy does not stand alone. The evidence presented by Plaintiffs showed that it applied only to hourly employees, the mine only had two hourly underground job classifications, both of which had significant physical demands, the policy was not strictly applied since other hourly employees were allowed to work with restrictions, the company had an EEO policy that recognized its obligations under the ADA to make reasonable accommodation, and Clawson was able to apply and interview for an open position on the surface in the warehouse. Thus, the "no restrictions" policy, by itself, does not provide a sufficient evidentiary basis to support Plaintiffs' claims that they were regarded as disabled, as a matter of law. B. Clawson

The evidence established that Defendants believed that Clawson could no longer perform his Underground Production/Utility Miner job that required him to operate vehicles without good shocks over rough roads.4 Even if Defendants' belief as to Clawson's restriction was erroneous, such belief is not sufficient to establish that he was regarded as substantially limited in the major life activity of working. Clawson presented no evidence as to 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
4

Nor did Defendants believe that Clawson could perform, consistent with his restriction, the Underground Maintenance Mechanic job, which included, as part of its job duties, the light duty assignment of fuel hauling.

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without good shocks over rough roads, i.e., a "class of jobs." Further, he failed to present any evidence as to 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." Rather, Clawson presented evidence that there were other jobs in the relevant geographic area demanding similar training which he was able to obtain. For example, prior to obtaining employment at Bowie coal mine, Clawson worked a number of jobs as an equipment operator for a variety of companies in the relevant geographic area. "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." Sutton, 527 U.S. at 492. The closest that Clawson came to presenting any such evidence was when he testified that Bill Olsen, the Safety Director, following an appointment with Dr. Huene in July 1999, stated something to the effect that Clawson "probably would not be returning to the mining industry." As Clawson's notes themselves reflect, even at the time of the comment, he was unsure what Olsen stated.5 Nevertheless, taking the evidence in the light most favorable to Clawson, the alleged comment by Olsen, standing alone and without any additional context or

Olsen denied making any such statement. Moreover, it is undisputed that at the same time Olsen allegedly made the comment, he also informed Clawson of a vacancy "in the mining industry" at West Elk mine for a Warehouse Tech. The evidence is undisputed that Stan Hopper, Warehouse Supervisor, who is the person who made the hiring decision for the Warehouse Tech position for which Clawson applied, was not aware of Clawson's restrictions and believed him to be physically capable of performing the job at the time of the hiring decision. Clawson was rejected for such position based only on the fact that he failed to demonstrate in the interview that he possesed the skills and expertise required for the job.

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evidence, is not sufficient to show that Clawson was "regarded as" disabled.6 Clawson failed to present any evidence that "the mining industry" comprises a class of jobs or a broad range of jobs as required for a finding that Clawson was "regarded as" disabled under the ADA. See Alfred, 262 F.3d at 1089 (noting that evidence presented, although enough to allow jury to infer certain conclusion, was insufficient as a matter of law to establish claim). C. Dillon

There was even less of an evidentiary basis offered to support Dillon's claim that he was regarded as disabled. Mountain Coal's belief that Dillon could no longer perform his Underground Maintenance Mechanic position position at the mine because such position would have required him to lift more than 25 pounds occasionally does not mean, as a matter of law, that Mountain Coal regarded him as disabled. See Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1241 (10th Cir. 2001), citing Thompson v. Holy Family Hosp., 121 F.3d 537, 541 (9th Cir. 1997) ("Even if [defendant] believed that [plaintiff] was incapable of lifting 25 pounds, it does not follow that [defendant] regarded her as disabled"). Here, Dillon did not apply for any vacant positions, nor did he suggest there were any vacant jobs for which he should have been considered at any time when he was actually released to work. He testified only that, after reaching MMI, he called and asked for his old job back, possibly with the same accommodation he had while working on light duty after his injury.7 His old job, whether considered lube man or Underground Maintenance Mechanic, is not a class or

It is also important to note that, to the extent such evidence somehow supports Clawson's claim that he was "regarded as" disabled, it provides no support whatsoever as to Dillon's claims.
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6

As noted above, Langrand denied that such a conversation occurred. See fn. 3, supra.

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broad range of jobs. At best, Dillon showed that he was regarded as unable to perform his old job, Underground Maintenance Mechanic, or the only other available underground hourly job, Underground Production//Utility Miner, which was also physically demanding. Such evidence clearly is insufficient to establish that he was regarded as substantially limited in the major life activity of working. See, e.g., Nielsen, 162 F.3d at 611; Sutton, 130 F.3d at 904; MacDonald, 94 F.3d at 1445. III. Conclusion In sum, Clawson and Dillon each failed to present sufficient evidence to support his claim that he was "regarded as" disabled. Therefore, the Court should grant Defendants' motion for judgment as a matter of law, pursuant to Rule 50(a). Dated: May 11, 2006. Respectfully submitted,

s/Monique A. Tuttle Jeffrey T. Johnson Monique A. Tuttle 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 May 11, 2006, 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] [email protected] I am not aware of any non CM/ECF participants in this matter requiring service by other means.

s/Monique A. Tuttle Jeffrey T. Johnson Monique A. Tuttle 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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