Free Scheduling Order - District Court of Colorado - Colorado

Case 1:01-cv-00799-PSF-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-00799-PSF-MEH RITA BASTIEN, Plaintiff, v. THE OFFICE OF SENATOR BEN NIGHTHORSE CAMPBELL, Defendant.

SCHEDULING ORDER

1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL AND PRO SE PARTIES a. b. A status conference was held on January 19, 2007 Counsel for Plaintiff Rita Bastien: Karen Larson, Esq. 1120 Lincoln Street, Suite 711 Denver, Colorado, 80203 Telephone: (303) 831-4404

John S. Evangelisti, Esq. 1120 Lincoln Street, Suite 711 Denver, Colorado, 80203 Telephone: (303) 832-8226 c.

Counsel for Defendant The Office of Senator Ben Nighthorse Campbell Jean M. Manning, Esq. Claudia A. Kostel, Esq. Office of Senate Chief Counsel for Employment P.O. Box 77053 Washington, D.C. 20013

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2. STATEMENT OF JURISDICTION Plaintiff: Jurisdiction is conferred pursuant to the Congressional Accountability Act, (hereinafter "CAA") 2 U.S.C. § 1301 et seq., which prohibits discrimination against employees of an instrumentality of Congress based on age within the meaning of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. Plaintiff exhausted her administrative remedies by engaging in the counseling process from September 27, 2000 until October 27, 2000, in which she alleged violations the CAA and by engaging in a mediation process from November 11, 2000 until January 22, 2001. She received a right-to-sue letter on January 30, 2001. In 2000, Ms. Bastien filed a timely request for counseling with the Office of Compliance. By letter June 12, 2001 Ms. Bastien was notified of the end of the mediation period in Case No. 01-SN-12(RP). Defendant: Defendant contests the Court's jurisdiction to hear this case. Defendant calls to the Court's attention the jurisdictional statement currently pending before the Supreme Court in the case of Office of Senator Mark Dayton v. Hanson, No. 06-618 ("the Dayton case"). By Order dated January 19, 2007, the Supreme Court postponed consideration of the question of jurisdiction and ordered the parties to brief the question presented, the issue of appellate jurisdiction and the issue of mootness. The Dayton case is tentatively scheduled for argument on the merits on April 23, 2007. The outcome of the Dayton case could have a dispositive impact on this litigation in two respects. First, the 2

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Dayton case places before the Supreme Court the issue of whether the Speech or Debate Clause bars federal court adjudication of The Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438, as amended, ("the CAA") claims of a congressional employee whose job duties are part of the due functioning of the legislative process. Upon Defendant's motion in this litigation, this Court dismissed Ms. Bastien's claims on Speech or Debate Clause immunity grounds, but was reversed on appeal by the Tenth Circuit Court of Appeals. Second, the Dayton case presents the question of whether the cessation of the employing office of a Member of Congress due to the end of the Member's term of office requires dismissal of a CAA suit as moot, where, in providing a limited waiver of sovereign immunity for CAA suits, Congress specified that the defendant shall be a particular employing office and did not provide for substitution of another defendant for an employing office that ceases to exist. Defendant in this litigation asserted the same argument in its motion to dismiss on grounds of abatement and mootness, but this Court denied the motion. 3. STATEMENT OF CLAIMS AND DEFENSES Plaintiff: Plaintiff was a Senate aide on the staff of the Office of Senator Ben Nighthorse Campbell (hereafter " Office" from July 7, 1994 until she was terminated on April 10, ) 2001. At all relevant times, Plaintiff was treated differently than the younger staff in the Office, in that the Office involuntarily transferred her, gave her less favorable job 3

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assignments, removed job benefits enjoyed by her younger counterparts, increased her expenses without reimbursement, increased her job duties without reimbursement, paid her less than her younger counterparts, and terminated her without cause. The Office knowingly, intentionally, and willfully engaged in age-based discriminatory practices to drive Plaintiff out of her employment at the office. The Office allowed its agent(s) to perpetrate age-based workplace harassment and discriminatory practices that substantially altered Plaintiff's employment conditions constituting an adverse action. On or about September 5, 2000, the Office notified Plaintiff that she was involuntarily transferred from her workplace in the Englewood, Colorado to Colorado Springs, Colorado a discriminatory and disparate adverse action based on Plaintiff's then age, sixty-one (61). When Ms. Bastien was transferred to Colorado Springs, she was switched with the younger (age 50) female, Ms. Lawton, who previously took the job in Colorado Springs to advance from her job as a receptionist. Chief of Staff Kontnik demonstrated a preference for the younger Ms. Lawton by requiring Staff, including the Plaintiff, on one occasion, to clean Ms. Lawton's apartment during work hours. Senator Campbell and Chief of Staff Kontnik expressed reservations about older workers abilities to learn and fit in. Chief of Staff Kontnik stated to Ms. Bastien that she wanted to replace at least one older worker with a younger worker that was " more attractive." This person was terminated. Chief of Staff Kontnik is manipulative, cruel and discriminatory to older staff members, and verbally disrespectful to older workers. 4

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Ms. Bastien received no training for the new position in Colorado Springs. Ms. Bastien's predecessor received training for a month when she began as District Director. Nevertheless, Ms. Bastien increased the case load in Colorado Springs and performed well. Senator Campbell characterized the transfer as part of a normal practice and policy of cross training and rotation. However, the Office had no policy for transfer, cross training or rotation. Staffers always remained permanently in the locations and positions for which they were hired. During Ms. Bastien's employment with the Office, no other Colorado staff members were transferred or rotated against their will. There was no performance review of Ms. Bastien's work in Colorado Springs until five months passed. This review took place after Ms. Bastien's Counsel raised the failure to provide a performance review as retaliation for filing the complaint of discrimination. The Office chose to deal with Ms. Bastien's Complaint of discrimination through denial of pay increases, benefits and her termination on April 10, 2001. On or about March 30, 2001 Chief of Staff Kontnik called Ms. Bastien and told her that she would not be staffing a Town Meeting in Colorado Springs because Senator Campbell did not know what she was going to do about to her pending discrimination claim. After Plaintiff complained of discrimination the Office knowingly, intentionally, and willfully engaged in age-based retaliatory practices including false claims of misconduct and insubordination to drive Plaintiff out of her employment. The Office 5

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allowed its Chief of Staff to perpetrate retaliatory workplace harassment and to continue in age-based discriminatory practices that became the basis for Plaintiff's termination irrelevant cause. On April 9, 2001 Ms. Bastien was terminated. As a result of Defendant's illegal acts, Ms. Bastien suffered economic and non-economic damages, lost wages and benefits, suffered and will suffer emotional pain and suffering, and incurred costs and reasonable attorneys fees for which Plaintiff seeks pecuniary and compensatory damages. Plaintiffs requests declaratory relief finding and remedying discrimination, and equitable relief ordering the Plaintiff be made whole by providing her with back pay and front pay, reimbursement of expenses, and the monetary value of lost fringe benefits, wage increases, promotions, and lost retirement pay with moratory interest in an amount to be shown at trial, together with statutory interest pursuant to 2 U.S.C. § 1361, and such further and different relief as this Court may deem necessary and proper to make Plaintiff whole. Defendant: Defendant did not discriminate against Plaintiff on any basis prohibited by the CAA and did not retaliate against Plaintiff in violation of the CAA. The personnel actions Defendant took with regard to Plaintiff during the times relevant to the allegations of the Amended Complaint were for legitimate, non-discriminatory reasons, including, but not limited to, unsatisfactory job performance and misconduct.

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The CAA provides the sole remedy for the claims alleged by Plaintiff in her Amended Complaint, and she is therefore limited to the relief provided by the CAA. To the extent Plaintiff seeks relief that is not available under the CAA, the Court is without jurisdiction to grant the relief requested. Plaintiff has failed to mitigate her damages and to the extent of such failure to mitigate, any damages awarded to Plaintiff should be reduced accordingly. This Court lacks jurisdiction to adjudicate this lawsuit because (1) the Office of Senator Ben Nighthorse Campbell ceased to exist on January 3, 2005, and is no longer an "employing office" subject to suit under the CAA; and (2) Congress has not waived sovereign immunity for CAA suits against non-existent congressional offices or for CAA suits against the Congress. 4. UNDISPUTED FACTS The following facts are undisputed: 1. At the time of the filing of the Amended Complaint, Rita Bastien was a

62-year old female. 2. Plaintiff was employed by the Office of Senator Ben Nighthorse Campbell

in the following positions during the periods of time stated: Senate Aid in Englewood, Colorado from July 7, 1994, to September 5, 2000, except for three months in 1997 when she was the Scheduler in Washington, D.C. office; and District Director in Colorado Springs, Colorado from September 6, 2000, to April 10, 2001; and was terminated on April 10, 2001.

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3.

Plaintiff was notified in September 5, 2000, that her work title would be

changed to District Director and her work situation would be changed to Colorado Springs, Colorado, effective September 6, 2000. 4. Senator Campbell informed Plaintiff that her transfer to the Colorado

Springs office in September 2000 was in keeping with his policy of cross training and rotation. 5. When Plaintiff was a Senate Aid in the Englewood office of the Office of

Senator Ben Nighthorse Campbell, her job duties included but were not limited to handling constituent casework that focused on immigration issues. 6. Simultaneously with Plaintiff's transfer to the Colorado Springs office of

the Office of Senator Ben Nighthorse Campbell, Catherine Lawton was transferred to the Englewood Office of Senator Ben Nighthorse Campbell; and that Ms. Lawton is younger than Plaintiff. 7. Catherine Lawton held that position of District Director in Colorado

Springs for the Office of Senator Ben Nighthorse Campbell in 1999. 8. Mr. Doyle was hired as the District Director in Fort Collins. He lives in

Berthoud and commuted to Fort Collins. He was then offered the position of Press Secretary in Denver. He accepted the promotion and commuted to Denver. 5. COMPUTATION OF DAMAGES Ms. Bastien was terminated on April 9, 2001. She was paid through April 10, 2001.

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Ms. Bastien planned to work through the end of Senator Campbell's second term which was December 31, 2004. This additional four years and five months would have afforded Ms. Bastien considerably more in pension benefits in her Government annuity and from Social Security. Ms. Bastien's salary at the time of her termination was approximately $40,000.00. Given the fact that pay raises and bonuses were given at least once a year her salary would have increased to approximately $45,000 per annum if she was able to continue her employment with the Office. Ms. Bastien's wage loss is estimated at $150,000.00 - $200,000.00. Ms. Bastien receives a Government annuity of $465.00 per month or $5580.00 per annum. If she had worked for the Senate for 10 years this annuity would be greater.

Ms. Bastien receives Social Security of $799.50 per month or $9549.00 per annum. It is estimated that she would receive approximately an additional $300.00 per month if she was allowed to continue her employment with the Office. Ms. Bastien is entitled to compensatory damages in an amount to be determined by the jury for emotional pain and suffering, loss of enjoyment of life, financial hardship, embarrassment, and injury to reputation.

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Ms. Bastien is entitled to interest, costs, and reasonable attorney fees, together with other equitable and just relief. Defendant is not seeking damages. 6. REPORT OF PRECONFERENCE DISCOVERY AND MEETING UNDER F.R.CIV.P. 26(f) a. Date of Rule 26(f) meeting. January 26, 2007. b. Names of each participant and party he/she represented. John S. Evangelisti participated on behalf of the plaintiff. Julia H. Perkins participated on behalf of the defendant. c. Proposed changes, if any, in timing or requirement of disclosures under

F.R.Civ.P. 26(a)(1). None. d. made. Plaintiff's disclosures were made January 29, 2006. Defendant will serve its disclosures within 14 days of this Scheduling Order if not already served. e. Statement concerning any agreements to conduct informal discovery, Statement as to when rule 26(a)(1) disclosures were made or will be

including joint interviews with potential witnesses, exchanges of documents, and joint meetings with clients to discuss settlement. If there is agreement to conduct joint interviews with potential witnesses, list the names of such witnesses and a date and

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time for the interview which has been `agreed to by the witness, all counsel, and all pro se parties. None. f. Statement as to whether the parties anticipate that their claims or

defenses will involve extensive electronically stored information, or that a substantial amount of disclosure or discovery will involve information or records maintained in electronic form. In those cases, the parties must indicate what steps they have taken or will take to (I) preserve electronically stored information; (ii) facilitate discovery of electronically stored information; (iii) limit associated discovery costs and delay; and (iv) avoid discovery disputes relating to electronic discovery. Describe any agreements the parties have reached for asserting claims of privilege or of protection as trial preparation materials after production of computer-generated records. Plaintiff would like to review any electronic records that pertain to Ms. Bastien from the time her transfer to Colorado Springs was first contemplated or discussed. Therefore the location of this information is requested. Plaintiff requested Defendant identify computers that would have information that pertains to this case including but not limited to: emails, draft correspondence, internal memos, white papers or other documents concerning Ms. Bastien's claims, reasons for termination, responses to her complaint. Plaintiff asked what if any effort was made to preserve electronic information contained on computers and email. Defendant has not responded. Plaintiff requests Defendant be directed to provide the information required above at f. i-iv. 11

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Defendant does not anticipate that the claims or defenses will require extensive electronically stored information, or that a substantial amount of disclosure of discovery will involve information or records maintained in electronic form. Defendant is directed to provide the information required above at f. i-iv. 7. CONSENT All parties have not consented to the exercise of jurisdiction of a magistrate judge. 8. CASE PLAN AND SCHEDULE a. Deadline for Joinder of Parties and Amendment of Pleadings: March 1, 2007. b. Discovery Cut-off: August 3, 2007. c. Dispositive Motion Deadline: August 10, 2007. d. (1) Expert Witness Disclosures State anticipated fields of expert testimony, if any. Plaintiff may call psychologist, psychiatrist, economist and/or accountant. Defendant may call such experts as necessary to respond to Plaintiff's expert witnesses. (2) State any limitations proposed on the use or number of expert witnesses. None.

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(3)

The parties shall designate all experts and provide opposing counsel with all information specified in Fed. R. Civ. P. 26(a)(2) on or before July 15, 2007.

(4)

The parties shall designate all rebuttal experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before August 1, 2006.

(5)

Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no exception to the requirements of the rule will be allowed by stipulation of the parties unless the stipulation is approved by the court.

e.

Deposition Schedule:
Date of Deposition Time of Deposition Expected Length of Deposition

Name of Deponent Ben Nighthorse Campbell1 Ginnie Kontnik David Devendorf James Doyle Catherine Lawton Linda Campbell Rita Bastien Thomas Bastien Scotland Gragg Carolyn Last Amy Aglar

June 13, 2007 June 11, 2007 June 11, 2007 June 12, 2007 June 18, 2007 June 20, 2007 June 21, 2007 July 9, 2007 July 9, 2007 July 10, 2007

9 a.m. 8 a.m. 1 p.m. 8 a.m. 8 a.m. 8 a.m. 8 a.m. 8 a.m. 1 p.m. 8 a.m.

7 hours 4 hours 4 hours 4 hours 7 hours 7 hours 4 hours 4 hours 4 hours 4 hours

The scheduling of this deposition is subject to the limitations set forth in this Court' Order denying defendant' Motion to Stay, entered February 28, 2007. s s

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f.

Interrogatory Schedule

Interrogatories are to be served no later than 33 days before the discovery cut off. g. Schedule for Request for Production of Documents

Requests for production of documents are to be served no later than 33 days before the discovery cut off. h. (1) Discovery Limitations: Any limits which any party wishes to propose on the number of depositions. None. (2) Any limits which any party wishes to propose on the length of depositions.

None. Counsel are expected to act reasonably with respect to the length of depositions. (3) Modifications which any party proposes on the presumptive numbers of depositions or interrogatories contained in the federal rules. None. (4) Limitations which any party proposes on number of requests for production of documents and/or requests for admissions. Each party will be permitted 20 requests for production of documents and 20 requests for admissions. If additional requests are necessary, the party make seek permission of the Court upon a showing of good cause.

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(5)

Other Planning or Discovery Orders

Written discovery (interrogatories, requests for production, and requests for admissions), other than initial disclosures, shall commence on March 1, 2007. All other discovery may commence on June 1, 2007. All responses to non-expert discovery shall be submitted by August 3, 2007. Defendant proposes that in light of the trial date of October 1, 2007, the parties observe a shortened briefing schedule whereby answering briefs to dispositive motions filed August 10, 2006 are due August 24, 2007; reply briefs are due August 31, 2007. Plaintiff responds that she will likely require 30 days until September 10, 2006 to respond to a dispositive motion. The Court directs that while the deadline for dispositive motions is August 10, 2007, any response to a dispositive motion will be filed 20 days after service of the motion, and any reply brief will be due 10 days thereafter. 9. SETTLEMENT The parties have discussed settlement several times: through mandatory CAA mediation and through the Tenth Circuit's mandatory mediation program. 10. OTHER SCHEDULING ISSUES a. A statement of those discovery or scheduling issues, if any, on which

counsel, after a good-faith effort, were unable to reach an agreement. (1) (2) (3) The time frame for discovery, Section 8.h.5. The length of depositions of non-party witnesses, Section 8.h.2. The briefing schedule for any dispositive motions, Section 8.h.5. 15

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b.

Anticipated length of trial and whether trial is to the court or jury.

This case is set for a 5-day trial to a jury commencing October 1, 2007 at 9:00 a.m. The parties anticipate that the trial can be concluded in this time. 11. DATES FOR FURTHER CONFERENCES a. A settlement conference will be held on no later than August 30, 2007

with the parties directed to contact the Magistrate Judge to set such conference. It is hereby ordered that all settlement conferences that take place before the Magistrate Judge shall be confidential. Parties and attorneys only need be present. Each party shall submit a Confidential Settlement Statement to the Magistrate Judge on or before 10 days preceding any scheduled conference outlining the facts and issues, as well as the strengths and weaknesses of their case. b. Status conferences will be held in this case as needed or as

requested by the parties. c. A final pretrial conference will be held in this case on Wednesday,

September 5, 2007 at 4:00 p.m. A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than five days before the final pretrial conference. A final trial preparation conference will be held on Friday, September 21, 2007 at 9:00 a.m. 12. OTHER MATTERS In addition to filing an appropriate notice with the clerk' office, counsel must file s a copy of any notice of withdrawal, notice of substitution of counsel, or notice of change 16

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of counsel' address or telephone number with the clerk of the magistrate judge s assigned to this case. Counsel will be expected to be familiar and to comply with the Pretrial and Trial Procedures established by the judicial officer presiding over the trial of this case. In addition to filing an appropriate notice with the clerk' office, a pro se party s must file a copy of a notice of change of his or her address or telephone number with the clerk of the magistrate judge assigned to this case. With respect to discovery disputes, parties must comply with D.C.COLO.LCivR 7.1A. The parties filing motions for extension of time or continuances must comply with D.C.COLO.LCivR 6.1D. by submitting proof that a copy of the motion has been served upon the moving attorney' client, all attorneys of record, and all pro se parties. s 13. AMENDMENTS TO SCHEDULING ORDER The scheduling order may be altered or amended only upon a showing of good cause. DATED: February 28, 2007 BY THE COURT: s/ Phillip S. Figa _______________________________ Phillip S. Figa United States District Judge

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