Free Trial Brief - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

Document 349

Filed 07/14/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-MK-2199 (OES) MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, v. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants. TRIAL BRIEF ON CALCULATION OF EMPLOYEES FOR PURPOSES OF THE 42 U.S.C. § 1981a DAMAGE CAPS

The plaintiffs, Michael E. Clawson, and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Trial Brief On Calculation Of Employees For Purposes Of The 42 U.S.C. § 1981a Damage Caps, and in support thereof, state as follows: 1. Jones v. Rent-A-Center, Inc., 281 F.Supp. 2d 1277, 1287 (D. Kan. 2003).

It is the defendants' burden to prove the number of employees for purposes of the damages cap in 42 U.S.C. § 1981a, which is applicable to ADA cases. 2. Story v. Vae Nortrak, Inc., 214 F.Supp. 2d 1209, 1210 (N.D. Ala. 2001).

However, if plaintiffs wish to aggregate companies under the "integrated enterprise" theory for calculation of employees, it is plaintiffs' burden to prove by a preponderance of the evidence that the entities are integrated.

Case 1:01-cv-02199-MSK-MEH

Document 349

Filed 07/14/2005

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3. Equal Employment Opportunity Comm'n v. Illinois, 69 F.3d 167, 171 (7th Cir. 1995) (assessing whether school district was integrated with the state under the integrated enterprise test); Player v. Nations Biologics, Inc., 993 F.Supp. 878, 881-82 (M.D. Ala. 1997). The integrated enterprise test has application beyond the simple parent-subsidiary relationship. 4. Landon v. Agatha Harden, Inc., 6 F.Supp. 2d 1333, 1337-38 (M.D. Ala. 1998); Story v. Vae Nortrak, Inc., 214 F.Supp. 2d 1209, 1210 (N.D. Ala. 2001). Subsidiaries may be grouped together for purposes of counting employees if the parent company is integrated with each subsidiary. 5. Player v. Nations Biologics, Inc., 993 F.Supp. 878, 882 & FN 5 (M.D. Ala. 1997); Landon v. Agatha Harden, Inc., 6 F.Supp. 2d 1333, 1338-39 (M.D. Ala. 1998); Story v. Vae Nortrak, Inc., 214 F.Supp. 2d 1209, 1210 (N.D. Ala. 2001). Non-party [non-defendant] entities may be aggregated with party [defendant] entities for purposes of determining the number of employees. 6. Player v. Nations Biologics, Inc., 993 F.Supp. 878, 882 FN 5 (M.D. Ala. 1997); Landon v. Agatha Harden, Inc., 6 F.Supp. 2d 1333, 1339 (M.D. Ala. 1998). So long as the non-parties are jointly owned by a party, or by the owner of a party, there is no problem with lack of notice, and the non-party entities cannot claim lack of notice. 7. Player v. Nations Biologics, Inc., 993 F.Supp. 878, 882 FN 5 (M.D. Ala. 1997); Landon v. Agatha Harden, Inc., 6 F.Supp. 2d 1333, 1339 (M.D. Ala. 1998). However, the plaintiffs cannot collect damages directly from the non-party entities. 8. 42 U.S.C. § 1981a(c)(2)

The court, not the jury, must make the necessary findings to apply the damage cap, as the jury cannot be informed of the damage cap. 9. Story v. Vae Nortrak, Inc., 214 F.Supp. 2d 1209, 1210 (N.D. Ala. 2001) (using hearings to determine if entities are integrated for purposes of counting employees); Jefferson v. Milvets Sys. Tech., Inc., 986 F.Supp. 6, 7, 11-12 (D. D.C. 1997) (use of a special master to determine the number of employees in the relevant years). The court may hold hearings and make findings of fact after the trial to determine if non-party entities are integrated with party entities and to determine the number of employees. 10. South Prairie Construction Co. v. Local No. 267, 425 U.S. 800, 803 FN 3 (1976). 2

Case 1:01-cv-02199-MSK-MEH

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The four factors which are considered under the integrated enterprise test are: 1) interrelation of operations; 2) common management; 3) centralized control of labor relations; and 4) common ownership. RESPECTFULLY SUBMITTED this 14th day of July, 2005.

s/Damon Davis J. Keith Killian Joanna C. Jensen Damon Davis Killian, Guthro & Jensen, P.C. Post Office Box 4859 Grand Junction, Colorado 81502 Telephone: (970) 241-0707 FAX: (970) 242-8375 E-mail: [email protected] Attorney for Plaintiffs Michael E. Clawson and Jared L. Dillon

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Case 1:01-cv-02199-MSK-MEH

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on July 14, 2005, 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 email addresses:

Jeffrey T. Johnson, Esq. Monique A. Tuttle, Esq. Holland and Hart, LLP P.O. Box 8749 Denver, CO 80201-8749 and, I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Mr. Michael Clawson 38506 Back River Road Paonia, CO 81428 Mr. Jared Dillon 35404 Back River Road Hotchkiss, CO 81419 By mail

By mail

s/Kathi R. Stahl Kathi R. Stahl

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