Free Proposed Pretrial Order - District Court of Colorado - Colorado

Case 1:01-cv-01567-WYD-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-01567-WYD-CBS SALVATORE GIOVE, Plaintiff, v. DEPARTMENT OF TRANSPORTATION, Defendant. ________________________________________________________________________ FINAL PRETRIAL ORDER ________________________________________________________________________ 1. DATE AND APPEARANCES The Pretrial Conference was held on June 27, 2005 at 9:30 a.m. Plaintiff Salvatore Giove was represented by Ronald E. Gregson of Ronald E. Gregson, P.C. Defendant Department of Transportation was represented by Assistant United States Attorney Mark S. Pestal. 2. JURISDICTION Jurisdiction over this action is invoked pursuant to 42 U.S.C § 2000e-5. 3. CLAIMS AND DEFENSES A. Plaintiff's Claims: Plaintiff Salvatore Giove is a United States citizen who was born in Italy, now residing in the State of Colorado in the City of Grand Junction. Giove claims that defendant U.S. Department of Transportation discriminated against and harassed him in

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employment on the basis of his national origin over a period of twelve years, concluding in his termination in 1998. After five years in the U.S. Air Force in air traffic control tower work, plaintiff was hired as an Air Traffic Control Specialist-Developmental in July, 1986, and assigned for training in Oklahoma City. He was posted to the Salt Lake City Center in October, 1986, as an Air Traffic Assistant, where he first faced ridicule and derisive comments centering his name and Italian heritage. Prominent among his harassers was Doug Clayton, who eventually terminated his employment in 1998. Giove was denied the training provided to non-Italian trainees in Oklahoma City, Salt Lake City and Ogden. Upon arrival in Ogden in 1988, Clayton greeted Giove with a generic Italian name. Indeed, Clayton never addressed Giove by his given name and even abused him physically. While in Ogden, Giove repeatedly applied for and was repeatedly denied a transfer to Salt Lake City where his wife resided. Giove was certified in March, 1989. Later, while attending college and working in Grand Junction, Giove was denied the shifts that would have accommodated his scheduled classes. Giove was terminated in 1998, effective September 4 th. The rationale given for his termination was based on allegations of improper disclosures concerning an air accident in Grand Junction on October 31, 1992. Plaintiff contends that his termination was discriminatorily motivated and retaliatory based on his repeated claims of discrimination during his employment. Plaintiff seeks back pay and benefits, future pecuniary damages, and compensation for emotional distress. 2

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B.

Defendant's Defenses: Giove's termination from his position as an Air Traffic Controller with the FAA

was justified because he was found to have lied during an official FAA investigation, created a disturbance to FAA operations, and misused government property. The dismissal was not motivated in any way by Giove's national origin or in retaliation for any prior EEO involvement. The defendant denies plaintiff's allegations of discrimination and retaliation. Giove's claims fail for the following reasons: (1) Giove failed to exhaust his administrative remedies for those claims (harassment, hostile work environment, disparate treatment) arising 45 days before October 2, 1998 (the date of his initial contact with an EEO counselor) or August 18, 1998. (2) Giove may not maintain a Title VII claim in district court over his removal because he elected to pursue that claim in a negotiated grievance proceeding that permitted claims of discrimination to be brought as well. (3) Assuming Giove is able to state a claim for employment discrimination, he is unable to offer admissible evidence that the FAA's reasons for his removal were pretextual, and that the removal was in fact the result of intentional national origin discrimination. The defendant's defenses are more fully set forth in its motion for summary judgment filed October 6, 2004. (Doc. 94). Plaintiff fails to state a claim upon which 3

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relief may be granted. Plaintiff fails to name the proper party in this Title VII suit. Plaintiff is not entitled to punitive damages against the government. 4. STIPULATIONS 1. Plaintiff is a citizen of the United States who resides in the City of Grand

Junction, State of Colorado. 2. Defendant Department of Transportation is located at 400 7th Street,

Washington, DC 20590. 3. Defendant is an employer within the meaning of Title VII. 5. PENDING MOTIONS Defendant's Motion for Summary Judgment, filed October 6, 2004, is pending. 6. WITNESSES Plaintiff's Non-Expert Witnesses: (1) witnesses who will be present at trial: 1. Salvatore Giove 593 Sycamore Court Grand Junction, CO 81504 Testimony: Mr. Giove is the plaintiff in this action and will testify to all facts

underlying his claims against defendant; testimony in person. 2. Douglas Clayton, FAA manager 617 Devin Drive Grand Junction CO 81504 (970) 523-1654 Testimony: Mr. Clayton will testify as in deposition concerning issues related

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to his treatment leading of plaintiff to plaintiff's termination and certain testimony in depositions taken on November 19, 1997, as well as to allegations made in an unemployment insurance hearing and an arbitration hearing; testimony in person. (2) witnesses who may be present at trial: None. Plaintiff's Expert Witnesses: (1) witnesses who will be present at trial: None. Defendant's Non-expert Witnesses: (1) witnesses who will be present at trial: 1. Douglas Clayton 617 Devin Drive Grand Junction CO 81504 (970) 523-1654

Mr. Clayton will testify in person regarding the basis for plaintiff's termination. (2) witnesses who may be present at trial: 1. Earl Hittle FAA Denver, International Air Traffic Control Tower Denver, Colorado (970) 487-3065; (720) 870-1217

Mr. Hittle may be called to testify about plaintiff's work performance, FAA policies and procedures.

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2.

Ed Jones Brighton, Colorado (303) 655-1767

Mr. Jones may be called to testify about plaintiff's work history, claims, and FAA policies and procedures. 3. Dirk Brown FAA Centennial Tower Centennial, Colorado.

Mr. Brown may be called to testify about plaintiff's work history, claims, and FAA policies and procedures. 4. Arnett Williams Former FAA official Address and telephone number unknown.

Mr. Williams may be called to testify about his knowledge of plaintiff's claims. 5. Gary Mueller FAA employee Grand Junction, Colorado.

Mr. Mueller may be called to testify about plaintiff's work history. 6. Brook Lewis Attorney FAA Washington, D.C. (202) 366-4118.

Mr. Lewis may be called to testify about the investigation conducted to determine who was the source of information to the plaintiffs' counsel concerning the Alpine Air litigation. 7. James Ferguson FAA Salt Lake City Air Traffic Control Tower Salt Lake City, Utah.

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Mr. Ferguson may be called to testify about plaintiff's work performance. 8. Barbara Bachus-Sanders, FAA Seattle ARTCC Auburn, Washington (253) 351-3508.

Ms. Bachus-Sanders may be called to testify about plaintiff's performance, removal, and FAA policies and procedures. 9. Steve Johnson FAA employee address and telephone number unknown

Mr. Johnson may be called to testify about plaintiff's claims, termination, and FAA policies and procedures. 10. Larry Statham former FAA employee address and telephone number unknown

Mr. Statham may be called to testify about his involvement in plaintiff's removal. 11. Jay Dilman Attorney FAA Washington, D.C.

Mr. Dilman may be called to testify about the investigation into the Alpine Air litigation. 12. Ron Beckerdite FAA Seattle ATCT Seattle, Washington.

Mr. Beckerdite may be called to testify regarding the issues concerning plaintiff's performance and removal.

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13.

Monte Eeds Regional Director Fort Worth Regional Office FAA

Mr. Eeds may be called to testify about plaintiff's EEO. 14. Special Agent Richard Roberts FAA

SA Roberts may be called to testify about a statement Giove made to him during an investigation. Any witness needed for foundation, authentication, impeachment, or rebuttal. Defendant's Expert Witnesses: None. 7. EXHIBITS a. Plaintiff's Exhibits: 1. 2. 3. 4. 5. 6. 7. 8. 9. Plaintiff's official Personnel Folder Air Traffic Control Handbook Aeronautical Information Manual FAA Facility Management Handbook FAA training regulations FAA facility evaluation rules, procedures, and/or regulations Grand Junction Time and Attendance records Grand Junction Tower work schedules Air traffic activity reports 8

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10. 11.

DOT policies and procedures All FAA Inspector General reports and record of interviews for the Grand

Junction Tower 12. 13. Plaintiff's record of blood donations Results of all Grand Junction Tower full Facility Evaluation Reports and

follow-up reports 14. Results of all flight inspections for Grand Junction navigational systems

between January 01, 1990 and October 31, 1992 15. Plaintiff's evaluation and documentation of Salt Lake City ARTCC controllers'

work performance 16. 1993 17. 18. 19. 20. Aviation Safety Reports Plaintiff's OPM file Plaintiff's correspondence with supervisors Plaintiff's copies of information extracted from Grand Junction Tower's daily Grand Junction ILS maintenance records from January 01, 1991 to March 01,

read file and other information located in tower 21. 22. Copies of GJT position logs Copies of FAA GJT events logs

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23.

ZLC and GJT Instrument Approach Procedure charts, Low and High Altitude

En-Route charts, Special Instrument Approach Procedure charts, LOA's, and other ATC information specific to ZLC and GJT 24. 25. 26. 27. 28. b. Results of NTSB investigation for Alpine Air 305 Plaintiff's FLRA, DOL, and ULP file GJT NATCA union local, national, and DOL records GJT traffic activity reports GJT controller depositions in Blatner V. USA

Defendant's Exhibits: 1. 2. 3.. 4. 5. 6. 7. 8. 9. 10. 11. 12. Award of Arbitration, NM-98-GJT-02 Giove v. Department of Transportation, 230 F.3d 1333 (Fed. Cir. 2000) Giove v. Department of Transportation, 89 M.S.P.R. 560 (2001) Giove v. Department of Transportation, 50 Fed. Appx. 421 (Nov. 7, 2002) Giove's EEO Complaint Letter to Giove's attorney dated January 11, 1999 from Monte Eeds Collective Bargaining Agreement, August 1993 EEO Counselor's Report Record of Interview dated July 17, 1997 (SA Richard L. Roberts) Memo to Giove from Clayton dated April 18, 1996 Memo to Giove from Clayton dated July 8, 1996 Oral Reprimand dated October 25, 1996, from Clayton 10

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13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

Memo to Giove from Clayton dated February 7, 1997 Memo to Giove from Clayton dated August 19, 1997 Record of Conversation dated September 4, 1997 Memo from Clayton to Giove dated April 8, 1998 Memo from Clayton to Giove dated January 5, 1998 Remedial training memo from Clayton dated June 4, 1998 Memo dated July 7, 1998 from Clayton to Giove August 3, 1998, letter from Clayton to Giove August 28, 1998 letter to Giove from Douglas Clayton Videotape deposition of Sal Giove (re Alpine Air investigation) Any exhibit listed by plaintiff. Any document needed for foundation, authentication, impeachment, or rebuttal. 8. DISCOVERY

Discovery has been completed. 9. SPECIAL ISSUES None. 10. SETTLEMENT a. b. Counsel for parties have not met to discuss the settlement of the case. Counsel for the parties do not intend to hold future settlement conferences.

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c. settlement. d.

It appears from the discussion by all counsel that there is little possibility of

There are no further settlement conferences scheduled. 11. OFFER OF JUDGMENT

Defendant has not made an Offer of Judgment to Plaintiff. Counsel acknowledge familiarity with the provision of Rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case. 12. EFFECT OF PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. The Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIM ATED TRIAL TIM E; FURTHER TRIAL PREPARATION PROCEEDINGS 1. 2. 3. 4. Trial shall be to a jury. Estimated trial time is three days. The trial will be conducted in Denver, Colorado. Trial will commence on Monday, November 14, 2005, at 9:00 a.m.

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DATED this _____ day of _____________, 2005. BY THE COURT:

______________________________ Craig B. Shaffer United States Magistrate Judge FINAL PRETRIAL ORDER SUBMITTED: RONALD E. GREGSON, P.C. WILLIAM J. LEONE Acting United States Attorney

s/ Ronald E. Gregson Alexandra P. Smits 1775 Sherman St., Suite 1775 Denver, Colorado 80203 Telephone: (303) 861-2702 Facsimile: (303) 861-2706 [email protected] Attorneys for Plaintiff

s/ Mark S. Pestal Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, CO 80202 (303) 454-0100 (303) 454-0400 (facsimile) [email protected] Attorneys for Defendant DOT

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