Free Scheduling Order - District Court of Colorado - Colorado

Case 1:04-cv-01185-WDM-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01185-WDM-PAC GREG FELDMAN, Plaintiff, v. JOBSON PUBLISHING, LLC, a Delaware corporation, POSTGRADUATE INSTITUTE FOR MEDICINE, Inc., a member of the Jobson Education Group, a Delaware corporation, INTERNATIONAL CENTER FOR POSTGRADUATE MEDICAL EDUCATION, a member of the Jobson Education Group, a Delaware corporation. Defendants.

SCHEDULING ORDER

1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL AND PRO SE PARTIES The scheduling conference was held on November 15, 2005. Appearing for the parties were: a. For the Plaintiff, Greg Feldman: Laura L. Rovner Ari Krichiver, Student Attorney Julie Schmidt, Student Attorney STUDENT LAW OFFICE University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 E-mail: [email protected] b. For Defendants Jobson Publishing, LLC and Postgraduate Institute for Medicine, Inc.:

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Thomas J. Lyons Gillian Dale Hall & Evans, LLC Denver, CO 80202-2052 Telephone: 303.628.3300 Fax: 303.628.3368 E-mail: [email protected] 3. STATEMENT OF CLAIMS AND DEFENSES a. Plaintiff: Plaintiff Greg Feldman claims that Defendants discriminated against him on the basis of religion in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq, such discrimination taking the form of harassment and disparate treatment. Plaintiff also claims Defendants violated Title VII when they retaliated against him by terminating his employment when Plaintiff reported the discriminatory behavior. Additionally, Plaintiff claims that Defendants' discriminatory behavior on the basis of his race violated his right to enforce his employment contract within the meaning of 42 U.S.C. § 1981. b. Defendants: With respect to the named Defendants, Plaintiff was employed solely by Jobson Publishing, LLC (" Jobson" and not by Postgraduate Institute for ), Medicine, Inc. (" PIM" or International Center for Postgraduate Medical Education ) (" ICPME" ). PIM was not named as a respondent in Plaintiff' Charge of s

Discrimination to the Equal Employment Opportunity Commission (" EEOC" and ), Plaintiff therefore has not exhausted his administrative remedies with respect to this entity. The ICPME division in Colorado where Plaintiff worked at the time of the alleged events was not an independent entity capable of being sued and no

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answer was filed on behalf of such entity. As a result, the only properly named Defendant in this case was Jobson. Since the filing of this lawsuit, Jobson has changed its name to XJP, LLC. However, because the caption has not yet been revised to reflect this name change, the parties continue to refer to this entity as Jobson in this Scheduling Order. As defenses, Defendants Jobson and PIM assert that some or all of Plaintiff' claims fail to state a claim upon which relief may be granted against s Defendants; Plaintiff' claims do not rise to the level of violations of federal law s sufficient to state a claim under Title VII or 42 U.S.C. §1981; all actions taken by Defendants with respect to Plaintiff's employment were reasonable under the circumstances, taken in the course and scope of his employment, in the good faith performance of the duties of Defendants' employees, for legitimate business reasons, for the purpose of serving Defendants and in the good - faith belief that Defendants' employees acted in compliance with applicable laws and

regulations, and all such actions were based on legitimate factors, with no action taken in relation to any " protected activity"of Plaintiff or Plaintiff' race or religion; s at all times pertinent herein, Defendants and their agents, if any, acted in accordance with all common law, statutory, constitutional and contractual obligations and without any intent to cause Plaintiff harm; the facts alleged by Plaintiff do not rise to the level of a hostile work environment; Defendants' employees are entitled to express their own religious beliefs, and the display of religious symbols in an employee' own office does not violate the rights of any s other employee; Defendants possessed good and sufficient cause for all actions

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taken in relation to Plaintiff' employment; any actions taken by Defendant in s relation to Plaintiff were taken for legitimate non-discriminatory business reasons; Defendants would have taken the same actions with respect to Plaintiff' s employment in the absence of Plaintiff's race or religion and any alleged " protected activity" of the Plaintiff; Defendant never breached any duty owed Plaintiff at any time in the course of his employment with Defendant; upon information and belief, Plaintiff obtained a new job prior to the expiration of his severance pay at a higher wage than he was paid by Jobson, and therefore suffered no damages for lost wages; some or all of the damages, if any, alleged by Plaintiff were caused by the actions of third parties, or circumstances over which Defendants had no right of control or actual control; upon information and belief, Plaintiffs failed to mitigate his damages, if any, as required by law; Plaintiff' claims for punitive damages, if any, are barred, reduced, or in the s alternative, unconstitutional and violate Defendant' right to due process under s the Fifth and Fourteenth Amendments to the United States Constitution, and Article II, Section 25 of the Colorado Constitution; Plaintiff' damages, if any, are s subject to offset by virtue of amounts received from other sources; Plaintiff failed to bring his claims of religious discrimination and favoritism to the Defendants' attention and offered Defendants no opportunity to address his purported concerns; Plaintiff failed to exhaust his administrative remedies with respect to

some of his claims and with respect to some of the Defendants; ICPME was a division of Jobson and is not a separate entity capable of being sued; Plaintiff does not have standing to allege any violation of the rights of any employee other

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than himself; Plaintiff does not have standing to allege discrimination against members of a religion of which he is not a member; Plaintiff does not have standing to pursue injunctive relief against a former employer; Plaintiff' claims s for injunctive relief against his former employer are moot; some or all of Plaintiff' s claims are frivolous and groundless and without a basis in law or fact entitling Defendants to attorney's fees and costs of defense of this matter in conformity with applicable law. In addition, Defendants specifically reserved the right to amend their Answer to include additional defenses and affirmative defenses, or to delete defenses and affirmative defenses that become non-applicable, upon completion of additional discovery. 3. UNDISPUTED FACTS The follow facts are undisputed: a. At all relevant times, Jobson has been a Delaware limited liability company doing business in the State of Colorado and has continuously employed at least fifteen (15) employees. b. Defendant Jobson was an " employer"within the meaning of Title VII, 42 U.S.C. § 2000e(b). c. Jobson purchased PIM in 1999, and purchased another entity in 2000 whose name was changed to ICPME in 2001. d. Plaintiff was employed by Jobson beginning in March 2002, as Editorial Manager for the ICPME division of Jobson. e. Plaintiff was employed by Jobson until his employment concluded in August 2003.

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f. Plaintiff received positive work evaluations while employed with Jobson. g. In 2003, Jobson merged its ICPME division into PIM, and consolidated them into one office. h. Dennis Graber, the former Director of Operations for the ICPME division, displayed a picture of Jesus in his office. i. On or about October 14, 2003, Mr. Feldman filed a timely charge of discrimination against Defendants Jobson and ICPME with the Equal Employment Opportunity Commission (EEOC) alleging that Defendants Jobson and ICPME discriminated and retaliated against him. j. On or about April 22, 2004, the EEOC sent Mr. Feldman a Notice of Right to Sue. k. Mr. Feldman filed a complaint on June 9, 2004, within ninety (90) days of receiving the Notice of Right to Sue. 4. COMPUTATION OF DAMAGES Plaintiff: Plaintiff asserts that issues regarding damages should be deferred to a later stage of the litigation when the information necessary to make full and accurate calculation of damages has been obtained through discovery, including the disclosure of expert reports pursuant to Fed. R. Civ. P. 26(a)(2). Generally, Plaintiff is seeking back pay, front pay, compensatory damages, and punitive damages to the extent permitted by law. Plaintiff also seeks injunctive relief and a declaratory judgment stating that Defendants discriminated and retaliated against Plaintiff in violation of Title VII and section 1981.

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Plaintiff shall provide complete Rule 26(a)(1)(C) information to defense counsel by November 22, 2005. Defendants: Defendants object to Plaintiff' statement regarding computation of s damages. Plaintiff is in complete control of all data respecting any claim of front or back pay and requires no discovery pertaining to any such claim. Defendants Jobson and PIM claim no damages at this time but reserve the right to request attorney fees and costs. 5. REPORT OF PRE-CONFERENCE DISCOVERY AND MEETING UNDER FED. R. CIV. P. 26(F) a. Date of Rule 26(f) meeting: October 25, 2005 (via telephone). b. Names of each participant and the party he/she represented: Plaintiff was represented by Julie Schmidt, Student Attorney, of the University of Denver Student Law Office. Defendants Jobson and PIM were represented by Thomas J. Lyons of Hall & Evans, LLC. c. Proposed changes, if any, in timing or requirement of disclosures under Fed. R. Civ. P. 26(a)(1): None. d. Rule 26(a)(1) disclosures were made by November 15, 2005. Statement concerning any agreements to conduct informal discovery, 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

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names of such witnesses and a date and time for the interview which has been agreed to by the witness, all counsel, and all pro se parties: None. 5. CONSENT All parties have not consented to the jurisdiction of a magistrate judge. 6. CASE PLAN AND SCHEDULE a. Deadline for Joinder of Parties and Amendment of Pleadings: January 6, 2006. Plaintiff' deadline to amend the complaint with respect to the s proper employer is December 6, 2005. b. Discovery Cut-off: April 28, 2006. Deadline for 28 U.S.C. §636(c) consent to a magistrate judge is May 8, 2006. See D.C.Colo. L. Civ. R. 72.2. Dispositive Motion Deadline: June 30, 2006. b. Expert Witness Disclosure: (1) State anticipated fields of expert testimony: Plaintiff may designate an expert witness regarding Plaintiff' emotional s distress damages. Plaintiff may designate an expert witness regarding Plaintiff' economic s damages. Defendants Jobson and PIM may designate expert witnesses as necessary to rebut Plaintiff' expert witnesses. s (2) State any limitations proposed on the use or number of witnesses: Experts shall be limited to three per side.

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(3) The Plaintiff shall designate all experts and provide opposing counsel with all information specified in Fed. R. Civ. P. 26(a)(2) on or before: February 1, 2006. (4) Defendants Jobson and PIM shall designate all rebuttal experts and provide opposing counsel with all information specified in Fed. R. Civ. P. 26(a)(2) on or before: March 17, 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. (6) Counsel are advised to review Washington v. Arapahoe Social Services, 197 F.R.D. 439 with respect to treating physicians and Rule 26(a)(2). c. Deposition Schedule: A deposition schedule with dates is to be filed as a supplement to this Order no later than January 17, 2006. Name of Deponent Dennis Graber Lorraine Orlando Patrice Light Greg Feldman Andy Jeanjaquet Debbie Willis d. Interrogatory Schedule: All interrogatories shall be served on the opposing party by March 15, 2006. e. Schedule for Request for Production of Documents/Requests to Admit: Date and Time of Expected Length Deposition of Deposition TBD 7 hours TBD 7 hours TBD 7 hours TBD 7 hours TBD 4 hours TBD 4 hours

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All requests for production of documents and requests to admit shall be served on the opposing party by March 15, 2006. f. Discovery Limitations: (1) Any limits which any party wishes to propose on the number of depositions: Ten (10) depositions per side, including experts. (2) Any limits which any party wishes to propose on the length of depositions: Seven (7) hours maximum for each deponent. (3) Modifications which any party proposes on the presumptive numbers of interrogatories contained in the federal rules without the leave of the court: Twenty-five (25) interrogatories per side. (4) Limitations which any party proposes on the number of requests for production of documents and/or requests for admission without the leave of the court: Thirty (30) requests for the production of documents per side. Twenty-five (25) requests for admissions per side. g. Other Planning or Discovery Orders: None. 8. SETTLEMENT The parties discussed the possibility of settlement. No settlement was

arranged. The parties can revisit settlement during and following discovery as appropriate. Additionally, consistent with this Court' Order of September 28, s

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2005, counsel for Plaintiff and Defendant will provide the Court a Confidential Settlement Statement in anticipation of the Settlement Conference scheduled with Magistrate Judge Coan for November 15, 2005. 9. 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: None. b. Anticipated length of trial and whether trial is to the court or jury: All parties anticipate a three (3) day trial. Trial is to a jury. 3. DATES FOR FURTHER CONFERENCES a. A settlement conference will be held on February 13, 2006 at 1:30 p.m. It is hereby ordered that all settlement conferences that take place before the magistrate judge shall be confidential. ( ) (x) Pro se parties and attorneys only need be present. Parties, attorneys, and client representatives with full authority to

settle must be present. (NOTE: This requirement is not fulfilled by the presence of counsel. If an insurance company is involved, an adjustor authorized to enter into settlement must also be present.) (X ) Each party shall submit a Confidential Settlement Statement to the

magistrate judge on or before February 9, 2005 outlining the facts and issues in the case and the party's settlement position. b. Status conferences will be held in this case at the following dates and times:

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___________________________________________________________ ___________________________________________________________ c. A final pretrial conference will be held in this case on Sept. 18, 2006 at 9:30 a.m. :in Courtroom A-501. A proposed Final Pretrial Order shall be prepared by the parties and submitted to the court no later than five days before the final pretrial conference. 11. OTHER MATTERS In addition to filing an appropriate notice with the clerk's office, counsel must file a copy of any notice of withdrawal, notice of substitution of counsel, or notice of change of counsel's address or telephone number with the clerk of the magistrate judge assigned to this case. In addition to filing an appropriate notice with the clerk's office, a pro se party 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's client, all attorneys of record, and all pro se parties. 12. AMENDMENTS TO SCHEDULING ORDER The scheduling order may be altered or amended only upon a showing of good cause.

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DATED this 15th day of November 2005. BY THE COURT:

s/Patricia A. Coan Patricia A. Coan United States Magistrate Judge

Approved: s/ Laura L. Rovner Laura L. Rovner STUDENT LAW OFFICE University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 E-mail: [email protected] s/ Ari Krichiver Ari Krichiver, Student Attorney STUDENT LAW OFFICE University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 s/ Julie Schmidt Julie Schmidt, Student Attorney STUDENT LAW OFFICE University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 s/ Thomas J. Lyons Thomas J. Lyons Gillian Dale Hall & Evans, LLC Denver, CO 80202-2052 Telephone: 303.628.3300 Fax: 303.628.3368 E-mail: [email protected]

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