Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01124-JLK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. O4-CV-JLK-MEH LINDA FORGACS, MONICA JONES, DANIEL LINK, GRACE MORENO AND PAM ROGGE, Plaintiffs, V. EYE CARE CENTER OF NORTHERN COLORADO; WILLIAM L. BENEDICT, M.D.; JOEL S. MEYERS, M.D.; MORRIS TILDEN, M.D.; IRENE OLIJNYK, M.D.; and JAY R. HOLMS, Defendants. ___________________________________________________________________ PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT _________________________________________________________________ The Defendants in this case have submitted numerous motions for Summary Judgment. Plaintiffs have consolidated these motions

into a single response.

Plaintiffs will respond to the motions in the following order:

1. Motion for Summary Judgment as to Plaintiff's Defamation Claims; 2. Motion for Summary Judgment as to Plaintiff's Remaining ERISA Claims; 3. Motion for Summary Judgment as to Colorado Wage Claim Act Claims, FLSA Claims and Breach of Contract Claim. 1

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DEFAMATION Evidence provided in this case indicates that several things took place that would allow for liability to attach to each of the individual defendants in the case.

First, evidence provided shows that Defendants Holms, Tilden, Meyer and Benedict met and discussed information concerning the allegations that Forgacs, Jones and Link had stolen money from the company. (Affidavit of Michelle Hebert, Exhibit 1)

Those individuals then attended a meeting with the staff of Defendant company in which statements were made by Defendant Holms that these individuals had stolen money from the company. (Affidavit of Michelle Hebert, Exhibit 1)

During that meeting, Defendants Meyers, Tilden, Benedict and Olijnyk made no comment indicating that they disagreed with the defamatory statements made by Holms.(id.)

Evidence, either disputed or undisputed, demonstrates that these individuals nodded approval while the statements were made by Holms.(id.)

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These actions by these defendants clearly indicate that they actively initiated the statements made, and participated in the publication of the defamatory statements.

This is not a case similar to Wilson v. Meyer, 2005 WL 2046224 (Colo. App. 2005). This was not a personal statement of

one individual, and the argument made by Defendants that they were not participants and merely sat silently by does not apply to the facts here.

The case cited in Wilson to support the Defendants' proposition, Wayment v. Clear Channel Broadcasting, Inc., 116P3d 271 (Utah 2005) supports this contention.

The facts presented further indicate that these Defendants caused the defamatory statements to be published.

There is evidence either disputed or undisputed, that Defendants Meyers and Tilden made comments to at least one employee of the company concerning the alleged theft of money. (Affidavit of Michelle Hebert, Exhibit 1)

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PLAINTIFFS HAVE NOT RECEIVED PROPER ACCOUNTING Defendants argue that they have provided an accounting of the 401(k) accounts to Plaintiffs. They have not. (See

affidavits of Plaintiffs) The documents allegedly turned over to Plaintiffs do not provide the Plaintiffs with the proper accounting. No 2003 tax return was produced, as stated in

paragraph 5 of the Holm's affidavit contained in document 67 (Exhibit A). As stated in the Hebert affidavit (Exhibit 1), Mr. Holms requested that Ms. Hebert prepare false documents related to the 401(k) issues. Documents created by a defendant in this

case, without the proper back up documentation, does not constitute an "accounting".

PLAINTIFFS MAY SEEK DAMAGES BASED UPON THE PLAN ADMINISTRATOR'S BREACHES OF FIDUCIARY DUTY The Defendants argue that Plaintiffs are not entitled to damages resulting from their failure to provide timely and appropriate 401(k) rollover paperwork.

The Plaintiffs assert that they requested 401(k) rollover paperwork in writing and that the paperwork was not provided to them in a timely manner. §1132. 4 That time frame is 30 days, 29 USC

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There is evidence that Mr. Holms falsified information concerning the 401(k) paperwork. (Affidavit of Michelle Hebert, Exhibit 1)

Penalties are available to the Plaintiffs pursuant to 29 USC §1132(c), and a civil action may be brought.

PLAINTIFFS ARE ENTITLED TO CERTAIN DAMAGES OR PAYMENTS BECAUSE OF THE LATE DEPOSITS Defendants argue the fact that Plaintiffs' exclusive remedy for the late deposits of monies into their 401(k) plan are contained in 29 CFR §2510.3-102.

Assuming that the position taken by the Defendants is true, there is still a disputed issue of fact concerning whether the Defendants complied with the provisions of 29CFR § 2510.3-102. The Defendants have failed to indicate under which formula the amounts paid to Plaintiffs were calculated. Plaintiffs assert

that they should have been paid under the formula set forth in 29 CFR § 2510.3-102(d)(ii)(A). This was not done.

Plaintiffs seek the amount due to them under the requirements of the above regulation. 5 They do not seek

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compensation or punitive damages that do not appear to be available under the law.

PAM ROGGE WAS IMPROPERLY TERMINATED FROM HER EMPLOYMENT WITH THE EYE CARE CENTER AND NOT FOR THE REASONS CLAIMED BY DEFENDANTS

Defendants argue that Pam Rogge's claim for §125 failure to provide COBRA notification should be dismissed because she did not experience a "qualifying event" to trigger those rights.

Defendants make this assertion because they argue that she was terminated for gross misconduct based upon falsifying her time records. (Rogge Affidavit, Exhibit 2)

First, Ms. Rogge denies that she falsified her time records. She asserts that she took on extra responsibilities in an area that was not normally her responsibility, because the Eye Care Center was significantly behind in their billings to insurance companies.

Ms. Rogge billed the time she worked. (Rogge Affidavit, Exhibit 2) There is at least disputed evidence that the reason given by the Eye Care Center for her termination was a phony one used to cover up the real reasons for termination ­ issues 6

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concerning Ms. Rogge's appearance and her chronic illness. (Affidavit of Michelle Hebert, Exhibit 1)

MORENO IS ENTITLED TO VACATION PAY The Defendant argues that Grace Moreno is not entitled to payment for unused vacation pay because 1) she failed to reach her anniversary date prior to her termination so that she receive her allocation of vacation time, and 2) that the company had a "use it or lose it" vacation policy and she did not use all of her vacation days in previous years and therefore lost them.

Ms. Moreno concedes that she was terminated before her anniversary date and is not claiming that she is entitled to the 120 hours of vacation that would have accrued on that date.

Ms. Moreno claims, as the Defendant acknowledges, that she was allowed to carry over her vacation from one year to the next because her schedule and her supervising doctor made it impossible for her to take all of her accrued vacation time before her anniversary date. She made requests of Linda Forgacs,

Lori Mitchell and Jackie Smith to allow her to carry over the vacation time. Those requests were granted. Exhibit 3). (Moreno Affidavit

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PLAINTIFFS CONCEDE THAT THE RECORDS SHOW THAT ROGGE, FORGACS, JONES AND LINK WERE PAID WAGES DUE

Plaintiffs concede the wages for the above listed Plaintiffs were paid and the Second Claim for Relief should be dismissed.

It should be noted, however, that the documents upon which the Defendants defended the wage claims were not initially disclosed to Plaintiffs. The disclosures of documents were not

made until November 29, 2005, after discovery cutoff (Exhibit 4).

ROGGE CONCEDES THAT RECORDS SHOW THAT SHE RECEIVED HER OVERTIME PAYMENT

Plaintiff Rogge concedes that she has been paid her overtime.

Again, the payment was revealed in records provided by the Defendants that should have been provided to Plaintiffs with initial disclosures and were not. discovery cutoff. (Exhibit 4) They were provided after

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ROGGE DOES NOT CONCEDE BUT HEREBY WITHDRAWS HER CLAIM OF RETALIATION FOR HER CLIAM FOR OVERTIME

Plaintiff Rogge Claimed that she was terminated from employment because she worked overtime for the company, claimed overtime wages and was terminated for making these claims.

While Plaintiff Rogge asserts that the claim for overtime pay was a factor in her termination, the information recently revealed to her by Michelle Hebert, that she was terminated because of her disability (see Exhibit 1), could be the reason for her termination.

THE DEFENDANT IS NOT ENTITLED TO ATTORNEY'S FEES ON ANY OF THE WAGE CLAIMS

As mentioned above, the Plaintiffs have conceded several of the wage claims in this matter. Further, as stated above, the

Defendant failed to initially disclose any of the documentation in its possession until after the depositions of the Plaintiffs and after the discovery cutoff.

Under the circumstances, Defendant is not entitled to 9

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attorney's fees in this matter.

Respectfully submitted, s/George C. Price George C. Price Attorney for Plaintiff 900 Logan Street Denver, CO 80203 Telephone:(303)861-5500 Facsimile: (303) 484-2421 [email protected] CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 3, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address: John R. Paddock, Jr. Pryor Johnson Carney Karr Nixon, P.C. 5619 DTC Parkway, Suite 1200 Greenwood Village, CO 80111-3061 [email protected]

s/George C. Price George C. Price Attorney for Plaintiff 900 Logan Street Denver, CO 80203 Telephone:(303)861-5500 Facsimile: (303) 484-2421 [email protected]

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