Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1122 ­LTB-MJW DEBORA K. RUDD, Plaintiff, v. BURLINGTON COAT FACTORY WAREHOUSE OF COLORADO, INC., a Colorado corporation and MICHAEL NEUMAN, individually and in his capacity as supervisor, Defendants. DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT

Defendant Burlington Coat Factory Warehouse of Colorado, Inc. ("BCFW"), and Defendant Michael Neuman ("Neuman") hereby submit their Reply to Plaintiff's Response to Motion for Summary Judgment. Defendants BCFW and Neuman state as follows: I. Response to Plaintiff's Statement of the Case In Plaintiff's lengthy statement of the case, numerous facts are emphasized which are not relevant to the issues before this Court and numerous facts cited by Defendants are ignored which are essential in determining whether Defendants' Motion for Summary Judgment should be granted. Plaintiff's statements attempt to raise issues and additional questions, relying heavily on affidavits provided by former coworkers and ex-employees, Angel Garcia and June Dominguez, and deposition testimony of a former store manager, Tammy Skurnick, and former employee, Chris Limppo, the loss prevention officer. The affidavits consist mainly of personal opinion,

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belief, conclusory statements not based on personal knowledge, or the facts asserted are not relevant to the issues of this case or not supported by admissible evidence. Plaintiff's efforts to create material issues of fact in her brief fall short of what is required by Fed. R. Civ. P. 56. Factual assertions are primarily self-serving and unsupported by admissible evidence or not relevant to Plaintiff's claims. Conclusory allegations are not specific facts which create a general issue for trial. Mechan v. Amex Oil and Gas Inc., 796 F.Supp. 461 (D. Colo. 1992). Defendants presented their Statement of the Case in their Brief in Support and will offer only additional evidence from depositions that were taken after Defendants' Motion and Brief were filed with the Court or to rebut relevant allegations of Plaintiff. BCFW and Neuman seek summary judgment on Plaintiff's First and Second Claims for Relief. Plaintiff has voluntarily dismissed her Third Claim as stated in Plaintiff's Response. Defendants do not waive their request for costs, expenses, and attorney fees should the Court at a later date determine that Plaintiff's Second and Third Claims for Relief are frivolous, unreasonable, and groundless. II. Standard of Review In general, Plaintiff and Defendants agree as to the Standard of Review. Defendants state affirmatively that the Plaintiff, as the nonmoving party must establish more than "the mere existence of a scintilla of evidence" in support of her position or summary judgment may enter for Defendants.. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 106 S.Ct. 2505 (1986) . A. Defendants' Responses to Plaintiff's "Elements of the Claims and Burdens of Proof" Plaintiff and Defendants agree that the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973) establishes the burdens of each party. To support her prima facie case, Plaintiff must show: (1) that she engaged in statutorily protected activity in opposition to discrimination or participation in a proceeding involving the EEOC;

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(2) her employer took adverse employment action against her; and (3) there is a causal connection between the employee's protected activity and the harm suffered. Pastran v. K-Mart, 210 F.3d 1201 (10th Cir. 2000). Plaintiff asserts that the Seventh Circuit has determined that the third element, that of a causal connection between the protected activity and the adverse employment issue, overstates the Plaintiff's burden, citing McKay v. Town & Country Cadillac, Inc., 991 F.Supp. 966 (N.D.Ill. 2002) and Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 643-44 (7th Cir. 2002), and requests the Court consider this analysis for this case. It should be noted that in the Stone case the Court stated: Because this opinion creates a new rule for the adjudication of retaliation cases, it has been circulated to the full court in advance of publication under 7th Cir. R. 40(e). No judge in regular active service voted to hear the case en banc. Stone v. City of Indianapolis, 281 F.3d at 644. Defendants can find no case from the Tenth Circuit, or the U.S. Supreme Court, which follows the Seventh Circuit analysis. Defendants assert that the proper test to be applied to this case is as set forth in McDonnell Douglas, 411 U.S. at 792; Anderson v. Coors Brewery, 181 F.3d 1171 (10th Cir. 1999); and a long line of Tenth Circuit cases, including Pastran, and as stated most recently in Duncan v. Manager, Dept. of Safety, City and County of Denver, 397 F.3d 1300 (10th Cir. 2005). The elements required to establish a prima facie case, as set forth in all cases cited herein, require Plaintiff to show the third element, that of a causal connection between the protected activity and the harm suffered. If the Plaintiff meets her initial burden of proof, the Defendants must articulate some legitimate nondiscriminatory reason for the adverse employment action. If Defendants carry this burden, Plaintiff is required to show that the employer's stated reason for its decision was pretext for discrimination and that an illegitimate factor played a "substantial role" in the adverse employment decision. Price Waterhouse v. Hopkins, 490 U.S. at 228, 275 109 S.Ct. 1775 (1989); Texas Dept. of Community Affairs v. Buidine, 450 U.S. 248, 252-53, 101 S.Ct. 1089 (1981).

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Plaintiff has not come forward with facts sufficient to meet her burden of proof as to the causation element necessary to prove her Title VII retaliation claim, as will be more fully discussed in Defendants' "Argument" section. Defendants also state that in regard to Plaintiff's Second Claim, Plaintiff must prove by a preponderance of the evidence that Neuman intentionally and improperly induced the termination of Plaintiff. Defendants assert that she has not met this burden which will also be discussed further in Defendants' "Argument" section. B. Defendants' Response to Plaintiff's Asserted Material Facts in Dispute. Plaintiff has disputed Defendants' paragraphs 10, 13, 14, 15, 17, 19, and 20. Defendants respond as follows: Regarding Defendants' paragraph 10: Plaintiff testified that her relationship [with Neuman] did not change after she would no longer work for him as District Secretary. (P. Depo., p. 81, ll. 17-25, p.82, ll. 1-3.) She also stated that she suffered no change in pay when she chose to transfer to the position of a Receiving Associate. (P. Depo., p. 80, ll. 21-23.) She now attempts to state, contrary to her deposition testimony, that although she was not aware of it [apparently until recently], Neuman was "scrutinizing Plaintiff's conduct more than other employees at the store" and also was "intent on finding a reason for terminating the Plaintiff." The facts overwhelmingly do not support this. Plaintiff relies on a statement by Chris Limppo which is not based on anything except his speculation and opinion that Neuman intended to terminate Plaintiff. Plaintiff does not state the many times that other employees were disciplined or that other employees' conduct was also investigated by Chris Limppo and by other managers throughout this time period. Even if, for purposes of this Motion, it is acknowledged that Neuman was "scrutinizing" Plaintiff after she no longer worked for him as District Secretary (P. Depo., p. 74, ll. 18-20), it was from April 1, 2002 to June 10, 2003 before Plaintiff engaged in any protected activity

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relevant to this matter. So, any "scrutiny" as to Plaintiff's performance is not relevant to Plaintiff's Title VII claim. Violations of Title VII exist only when Plaintiff is engaged in protected activity. Cross v. The Home Depot, 390 F.3d 1283, 1286, (10th Cir. 2004). Therefore Plaintiff's disagreement with Defendants' statement of undisputed fact at paragraph 10 does not create a material disputed fact preventing entry of summary judgment. Regarding Defendants' paragraphs 13, 14, 15: Defendants agree that the date of the potluck lunch was mistakenly stated in its Statement of Facts as May 26, 2005. The correct date was May 16, 2003. Therefore there is no dispute regarding this fact. Regarding Defendants' paragraph 17: Plaintiff asserts that Defendants' statement that Neuman immediately began an investigation is disputed because he only investigated and reported the allegations against Mr. Limppo and K.C. Islehart. Although the evidence is that Neuman investigated whether any employee (without using any names) made other females "uncomfortable," for purposes of this Motion only, if Plaintiff's statement were "true," no material disputed fact is created. It is irrelevant to this matter as to whether Neuman specifically named anyone, or only Limppo and Islehart, or how thoroughly he conducted the investigation into Jesica Rudd's claims. Plaintiff's retaliation claim does not require evidence of a satisfactory investigation or conclusion that sexual harassment occurred. Therefore, paragraph 17 does not create a material disputed fact preventing entry of summary judgment. Regarding Defendants' paragraphs 19 and 20: Plaintiff apparently disputes the language used in paragraph 19, that Rudd committed a "second offense," and in paragraph 20, "a second timekeeping violation." Plaintiff has admitted that she did not clock out for the potluck lunch, the "first offense." Plaintiff does not dispute that Chris Limppo reported Rudd's departure from the store on June 13, 2005 to Neuman and that Plaintiff was terminated by Defendant for the stated reason that she had committed a second timekeeping violation. Plaintiff apparently

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objects only to the wording "first offense" and "a second violation." Therefore neither of these "disputes" raise a material disputed fact preventing entry of summary judgment. III. Defendants Response to Plaintiff's Argument. A. Title VII Retaliation Claim The basic legal issue to be considered when reviewing Plaintiff's assertions in support of her claim of retaliation is whether the termination of Plaintiff was in retaliation for Plaintiff's participation in protected activity. It is not: Whether there was, as a matter of law, sexual harassment; Whether the investigation in regard to her daughter's allegations of improper comments was thorough; or Whether the investigation reached the right conclusion; or Whether plaintiff was treated fairly in every instant she recites. Therefore many of the facts asserted by Plaintiff are irrelevant to Plaintiff's retaliation claim. For purposes of this Motion only, Defendants have agreed that Rudd's informal complaint to Neuman on behalf of her daughter was protected activity. However, the conduct which resulted in her termination is not "protected activity," and no causal connection exists between Plaintiff's June 10 "protected activity" and the June 13 conduct. Plaintiff admits she left the store on June 13th without clocking out. Whether she had permission is not relevant to the determination of retaliation in violation of Title VII. Plaintiff must prove that she was terminated by BCFW because she engaged in protected activity. The facts necessary to determine whether, as a matter of law, Plaintiff's decision to go to her car rises to the level of "protected activity" are not in dispute. On June 13, shortly after taking a break to go outside and smoke, and after taking a personal call in the store, Plaintiff left without clocking out. During that week, Mr. Limppo was

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watching Plaintiff and other employees and noting people who left the store. (Limppo Depo., p. 78, ll. 24-25, p. 79, ll. 1-6.) On June 15 he requested Angie Bochy to check Plaintiff and the others' timesheets to see if they had clocked out. (Limppo Depo., p. 78, ll. 13-19.) Upon review, it was found that Plaintiff had not clocked out on the 13th for a second break in the morning. Then Limppo called Neuman who was out of state on vacation to inform him that there had been a violation by Plaintiff. (Limppo Depo., p. 82, ll. 5-16.) Neuman told him to do nothing until he returned. This is all Neuman knew until he returned a couple of weeks later. Upon his return, he verified with Limppo what he had observed. He and Limppo also reviewed the security tape as to all the associates and Neuman asked every manager if permission had been given to Plaintiff on July 13 to leave the store. All said "no" at that time. (Neuman Depo., p. 231, ll. 6-20.) Limppo testified that Neuman was very careful with his dealings with Plaintiff and that Neuman said that if we ever made a mistake that it would end up getting taken to court. When dealing with Plaintiff, Neuman made it a point to send everything ­ any questions, comments, potential problems, or potential punishment to the corporate office first. (Limppo Depo., p. 64, ll. 3-11.) Mr. Limppo assisted Neuman in being certain that there was a violation by reviewing the security tape very thoroughly ­ more so than he thought was necessary. This thorough review was not peculiar to Plaintiff as this was Neuman's way in all instances ­ "micro managing" as Limppo would describe it. (Limppo Depo., p. 19, ll. 14-25.) Plaintiff admits that she took it upon herself to go to her car to retrieve her daughter's written statement. (P. Depo., p. 56, ll. 15-19.) There is a total absence of evidence that Plaintiff was asked to obtain the statement. In fact, it was clear that Neuman requested Jesica to do this. (P. Depo., p. 95, ll. 10-13; Neuman Depo. p.79, ll. 22-25, p. 80, ll. 1-19.) Plaintiff asserts that Defendants were "pressuring" Jesica Rudd for a statement and "threatening to fire her" if she did not promptly provide a written statement. However, there is no evidence to support this

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conclusory statement. Plaintiff stated that after she told Neuman about Chris Limppo's and K.C. Islehart's comments to Jesica, Neuman responded that "Jesica needed to give him a verbal statement right then and there, which she did. Then he said that he would need a written statement from Jesica. (P. Depo., p. 95, ll. 10-13.) Neither Neuman nor Human Resources requested Plaintiff to provide any further information or participate in the investigation. Neuman stated that it was Jesica's responsibility entirely. (Neuman Depo., p. 238, ll. 3-19.) No deadline was given Jesica, and based on Jesica's verbal statement, Neuman began the investigation as instructed by Human Resources. (Neuman Depo., p. 79, ll. 18-21.) No one said to Jesica that she would be fired, and certainly no one stated that Plaintiff would be fired if she did not cooperate. The company policy regarding harassment is attached hereto as Exhibit H. Plaintiff admitted that she went to her car to make a telephone call to an attorney to find out if she had a right to be present when her daughter's employment was being discussed with Neuman. (P. Depo., p. 61, ll. 7-21.) She also admits that after finding her daughter's complete statement was not in the car, she made another telephone call to her daughter. (P. Depo., p. 62, ll. 11-13, p. 65, ll.16-17.) This conduct does not rise to the level of "protected activity" as a matter of law. Every act of Plaintiff, after being involved in "protected activity," is not protected. The relationship between Jesica's allegations and Plaintiff's alleged desire to help her daughter was her personal choice. The personal decision made by Plaintiff to get her daughter's statement from her car while on company time is far removed from the type of oppositional activity protected by Title VII. It is curious that she did not simply walk to her car to get the statement when she clocked out to smoke between 9:16 and 9:26 a.m. She left again, after the personal phone call without clocking out at 9:41 a.m. (P. Depo. p. 56, ll. 1-13; p. 54, ll. 8-10.) It creates an inference that her phone call to a lawyer was really why she went to her car.

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It is Plaintiff's burden to prove that she was engaged in protected activity and that she was terminated because of this activity. Price Waterhouse v. Hopkins, 490 U.S. at 275. Plaintiff asserts that she did not violate the policy because employees were not required to clock out before leaving the building if the employee had the permission of a supervisor to leave. [Not all witnesses agree with this statement and managers, Raquel Romero and Angie Bochy provided written statements to the contrary.] (See attached Exhibit I.) However, even if Defendants were wrong when they made their decision to terminate Plaintiff, unless this decision was made for an improper discriminatory purpose, there is no violation of Title VII. Leibforth v. Belvedere Nat'l Bank, 337 F.3d 931 (7th Cir. 2003). Most importantly, at the time that Neuman and BCFW's corporate Human Resource Department reviewed the information available to them to determine whether Plaintiff had violated policy, neither knew why Plaintiff had gone to her car. At that time, there was no information from any source to inform Defendants that Plaintiff had obtained permission to go to her car. When Plaintiff was given the termination, she said the manager, Chris Moore had given her permission to leave. This was not true because Mr. Moore, who was present, stated that he was not even at work that day. (P. Depo., p. 53, ll. 1-25 and Exhibit J.) Chris Limppo also said he did not get a phone call at the front desk to inform him that Plaintiff had permission which was the custom, especially from Receiving. (Limppo Depo., p. 91, ll. 1-25.) Since Limppo was the person who reported Plaintiff's violation, he surely would have remembered a phone call which was to let Plaintiff go to her car. Defendants, in good faith, believed she had violated the timekeeping policy by not clocking out when she left the store. Plaintiff also attempts to create disputed facts sufficient to prevent this Court from entering summary judgment by stating that written statements obtained from employees after Plaintiff's termination, at Neuman's request, support an inference of retaliation in preparation for litigation. However, the record is clear that Neuman requested each employee to address specific

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issues because BCFW's Human Resources department wanted Neuman to investigate and respond to the many e-mails Plaintiff sent to Human Resources after her termination.1 The internal grievances filed by Plaintiff after termination cannot be deemed to be opposition to an unlawful employment practice unless it refers to a specific practice of the employer that is allegedly unlawful. DuPont-Lauren v. Schneider (USA) Inc., 994 F.Supp. 802, 823 (S.D.Tex 1998). Plaintiff is required to prove that she was engaged in activity protected by Title VII. She must also prove that Defendants knew that she was engaged in protected activity when she left the store without clocking out and, because she was engaged in this activity, or her participation in her daughter's claim was protected activity, Defendants terminated her. Plaintiff has no such evidence as Defendants clearly did not know her purported reason until after she was terminated and there is no causal connection between Jesica Rudd's June 10 report and Plaintiff's decision to leave the store for her own reasons. Although Defendants assert that many of the fact allegations asserted by Plaintiff in an attempt to support her case are not relevant or material to her claims, because such statements at least add "color," if not substance, Defendants dispute Plaintiff's "facts" as follows: Plaintiff attempts to prove that Defendants retaliated with Jesica's self-serving affidavit, by comments made, or the opinions of ex-employees, which are not admissible evidence and do not provide Plaintiff's required elements of proof. Plaintiff alleges that Jesica was moved to Receiving because she claimed sexual harassment to Tammy Skurnick when she was the Store Manager. Contrary to Plaintiff's assertions, Ms. Skurnick testified that it was never brought to her by Plaintiff or her daughter as serious ­ like I have "sexual harassment" (Skurnick Depo., p. 33, ll. 16-25, p. 34, ll. 1-5), but Jesica would talk about who she thought was cute and she said
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Records of Plaintiff's allegations and Neuman's responses to Human Resources thereto are attached as Exhibit K.

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that Lovelle Gerdine said that he looked up her name in a baby book. She did not consider this serious or sexual harassment. (Skurnick Depo. p. 34, ll. 8-12.) She stated that Jesica moved around a lot but it was not because of any problems with Lovelle, K.C., or Chris Limppo. It was just because she asked to be transferred, usually for better hours or to work with her mom (Skurnick Depo. p. 33, ll. 16-25, p. 34, ll. 1-12, and 22-25, p. 35, l), and that she transferred Jesica to Receiving as a favor to Plaintiff. She also stated that neither Plaintiff nor Jesica Rudd said anything about inappropriate comments made by Chris Limppo. (Skurnick Depo. p. 36, ll. 23-25, p. 37, ll. 14-22.) Ms. Skurnick also testified that when she first started as Store Manager, employees could go out and smoke a cigarette if they wanted to and although they were supposed to punch out, they probably did not. (Skurnick Depo. p. 57, ll. 7-13.) Later she started enforcing the rules and reviewed timecards of employees. (Skurnick Depo. p. 57, ll. 14-18.) Plaintiff, as District Secretary, could smoke all day long and Ms. Skurnick had no say in it, but she told Plaintiff that as a receiving associate Plaintiff had to follow the rules like everyone else. (Skurnick Depo. p. 57, ll. 19-25, p. 58, ll. 1-10.) Leaving to smoke without punching out was not approved in the Receiving department. (Skurnick Depo. p. 58, ll. 11-15.) Plaintiff was allowed extra smoke breaks but she was required to clock out. (Skurnick Depo. p. 58, ll. 24-25, p. 59, ll. 1-19.) Ms. Skurnick admitted that Plaintiff was given some special permission to take extra smoke breaks but she had to clock out as did everyone else who wanted an extra smoke break. (Skurnick Depo. p. 59, ll. 11-22.) Because Plaintiff did not always clock out as required, Skurnick verbally warned her that she had to clock out "because it would get her in trouble." Other employees were also going out and smoking from time to time without clocking out including June Dominguez. (Skurnick Depo. p. 60, ll. 5-22.) Although Plaintiff violated the policy from time to time and Ms. Skurnick had warned her that she could get in trouble, she admitted that she gave Plaintiff special

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treatment (Skurnick Depo. p. 76, ll. 9-14), and that she was personal friends with Plaintiff. (Skurnick Depo. p. 76, ll. 15-17.) When Plaintiff claims she "inadvertently" failed to clock out on May 16 for the potluck lunch, it was not because she did not know the policy or know that she had been previously verbally warned by her friend, Tammy Skurnick. Neuman had no involvement with Plaintiff as to discipline or possible violations of policy until the May 16 potluck lunch violation. Plaintiff has no evidence that Neuman treated her any differently than any other employee. All employees that were at the May 16 lunch who did not clock out were given final written warnings. Neuman made the decision to only write Plaintiff up for the May 16 violation, and not for the other days of that week that she also left without clocking out, although this many violations in one week could have fortified termination and, if Neuman was "out to get her" he could have done so right then. Instead, he gave her another chance. (Neuman Depo. p. 166, ll. 11-25.) To this point in time, Plaintiff had not participated in any "protected activity." Then, on June 10, 2003, the allegations of inappropriate comments were made known to Defendants by Plaintiff and her daughter in a meeting with Neuman and Raquel Romero. Plaintiff also attempts to support her case by alleging that the investigation of Jesica Rudd's charges of harassment was "cursory" and that no corroborating evidence was unearthed against Mr. Limppo. Plaintiff alleges that Defendants failed to produce notes Neuman admits he took during the interview or summaries of his notes. He testified that most of his notes were destroyed by him after they were "typed."2 This is not really relevant, however, as the issue of thoroughness of the investigation is not material to this matter. Immediately after Plaintiff's termination, she began to e-mail all kinds of claims of violations of policy by other employees to Human Resources. Human Resources determined that
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All "typed" versions and remaining handwritten notes were provided to Plaintiff.

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each should be investigated by Neuman to see if others had violated company policy. Plaintiff also asserts that Neuman "structured" the written statements provided by employees related to Rudd's claims. All statements addressed the issues raised by Plaintiff but were in the words of each employee and were truthful as testified by Limppo. (Limppo Depo., p. 138, ll. 4-20.) Defendants could dispute other "fact" statements but such are not material to the issues raised for purposes of Defendants' Motion for Summary Judgment. The basic issue is simple. Plaintiff's termination on June 27, 2003 after multiple prior offenses and a Final Warning was merely the culmination of a preexisting pattern of misconduct by Plaintiff. She violated a legitimate rule of her employer and she was terminated solely for that reason. Defendants assert that none of the evidence put forth by Plaintiff rises to the level that satisfies her required burden of proof. In the event that this Court deems that Plaintiff has made a prima facie case of retaliation, Defendants have asserted a bona fide nonretaliatory business purpose for its action and have supported their nonretaliatory reasons by direct uncontroverted evidence as is more fully set forth herein and in Plaintiff's Brief, pp. 10-12. For the reasons stated herein and in their Brief in Support of Motion for Summary Judgment, Defendants respectfully request this Court dismiss Plaintiff's First Claim for Relief and enter Judgment in favor of Defendants. B. Defendants' Response to Intentional Interference With At-Will Contractual Relationship It is not disputed that Plaintiff as an at-will employee is still entitled to some protection from improper interference with her relationship. But this "protection" requires that the actor responsible for the termination be motivated solely by a desire to harm one of the contracting parties or to interfere in the contractual relations between those parties. Trimble v. City and County of Denver, 697 P.2d 716, 726 (Colo. 1985).

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Plaintiff asserts that Neuman had personal animosity towards Plaintiff because she left her position with him as District Secretary and moved suddenly into the Receiving Department. Plaintiff starts with a comment allegedly made by Neuman in April 2002 when Plaintiff decided she did not want to be his secretary. The Store Manager in April 2002 was Tammy Skurnick. She testified that when Neuman first started as District Manager, he was definitely into enforcing the rules. (Skurnick Depo. p. 19, ll. 16-21.) She was present when Plaintiff informed Neuman that she no longer wanted to be his District Secretary. She recalled that he told Plaintiff that it was going to be different going into the store from being a District Secretary because there are rules in the store that she hadn't been held to, as in breaks, dress code, and all those things. (Skurnick Depo. p. 24, ll. 11-16.) Later that day Neuman had a telephone conversation with Ms. Skurnick wherein he asked "if it was okay for Plaintiff to move into Receiving and did she understand that Plaintiff would have to follow the store rules and all that kind of stuff." She acknowledged that she had discussed this with Plaintiff. (Skurnick Depo. p. 26, ll. 16-21.) Plaintiff infers that her first performance evaluation by Neuman in 2002 resulted in her not getting a raise for the first time. She was very angry about that. Ms. Skurnick assisted with Neuman in regard to this evaluation since Neuman had not been there long and did not know Plaintiff that well. Skurnick agreed that "satisfactory" was the appropriate rating for Plaintiff. (Skurnick Depo. p. 20, ll. 1-8.) Skurnick knew there were other people in the store that did not get a raise in 2002. (Skurnick Depo. p. 21, ll. 22-25, p. 22, ll. 1-5.) Neuman testified that "satisfactory" is not a bad rating at all and when he gave her the evaluation he did not know if she would get a raise. (Neuman Depo., p. 19, ll. 3-15, p. 26, ll. 1-2.) Ms. Skurnick testified that she did not remember Neuman saying that he was upset with Plaintiff for having brought a complaint to corporate attention that mentioned him in addition to others. When asked if Neuman ever discussed his feelings towards Plaintiff, she said "No, not his feelings, no," and she did not recall him ever saying "I am upset with her." She did not know

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his attitude with respect to Plaintiff, whether he liked her or did not like her. She knew that he always made it a point to say "hello" to Plaintiff when he walked into Receiving. She did not know if Neuman was upset about anything Plaintiff had done. (Skurnick Depo. p. 82, ll. 1-25, p. 83, ll. 1-12.) Although Mr. Limppo believed that there was "definite animosity between the two," he based this upon their "demeanor." (Limppo Depo., p. 66, ll.7-14.) Neither Plaintiff nor any other person identified any acts or conduct which support allegations of Neuman's hostility between April 1, 2002 and May 16, 2003, when Plaintiff received the final written warning of violation of the timekeeping policy (along with several other employees). Just prior to May 16, Angie Bochy, Operations Manager, noticed Plaintiff and four others were taking too many breaks outside the store. Ms. Bochy (not Neuman) asked Mr. Limppo to observe when each left the building and to record this. During the week of May 12, 2003, Plaintiff took extra breaks every day and Ms. Bochy verified that Plaintiff did not clock out for any of her extra breaks. (See Exhibit L.) Neuman did not terminate or otherwise discipline Plaintiff for the extra breaks on May 12, 13, 14, or 15. He chose not to write her up for the rest of time fraud violations noted for that week, believing the May 16 hour on the clock was the best evidence of a violation and a warning would suffice to prevent further violations. (Neuman Depo., p. 166, ll. 11-25.) He also testified that when Plaintiff first went to Receiving he noticed an improvement in the department. (Neuman Depo., p. 46, ll. 2-5.) All this is contrary to Plaintiff's allegations of animosity. After this warning, Plaintiff engaged in a campaign to report any employee she believed had violated any company policy. Each of the violations reported by Plaintiff to Human Resources or to Neuman was required to be investigated. Most were found not to have any merit, but to the degree that any violations were discovered, including a timekeeping violation by June Dominguez, each employee was given a final written warning. No one heard Mr. Neuman

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complain about having to do this or criticize Plaintiff for her reports. If it was troublesome for Mr. Neuman, he did not take any adverse action against Plaintiff or treat her differently. Although Plaintiff paints herself as an ideal, valuable, and model employee, it is clear that after Plaintiff received the final written warning of May 16, 2003, she became a disruptive, vindictive influence in the work place and that the constant interference with the operations of the store, bothered manager Raquel Romero enough that she sent a complaint to Human Resources regarding Plaintiff. (Exhibit M.) However, Ms. Romero's complaint does not support animosity on the part of Neuman. None of this shows motive, willful and intentional desire on the part of Neuman to harm Plaintiff and wrongfully interfere with her employment with BCFW. At all times he acted within the scope of his authority as District Manager, and in conjunction with BCFW. At every instance involving Plaintiff, Neuman communicated directly with Human Resources. There is no evidence, and cannot be any evidence, that Neuman took any action not authorized by BCFW's corporate Human Resource Department. Neuman never acted solely in his own interests, and there is no admissible evidence that he was motivated solely by personal animus towards Plaintiff, or not acting in furtherance of BCFW's policies. Plaintiff has failed to provide sufficient evidence that Neuman was acting out of malice and not in furtherance of BCFW's policies. There is not even a scintilla of evidence that his conduct and acts were improperly motivated, intentional, willful, and wanton. Plaintiff has not met her required evidentiary burden of proof under Colorado law. Zappa v. Seiver, 706 P.2d 440 (Colo.App. 1985). Plaintiff's claim of wrongful interference must fail ultimately because at all times BCFW's corporate Human Resource department involved and participated in all decisions and all matters related to Plaintiff. Neuman acted strictly upon the advice and under the direction of

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BCFW and not upon his own motivations or own decisions. (Neuman Depo., p. 241, ll. 20-23, p. 242, ll. 4-24.) As a matter of law, it is not possible for BCFW to interfere in its own contract with its employee. Koch v. Board of County Commrs of Costilla County, Colorado, 774 F.Supp. 1275 1276 (1991); Corporon v. Safeway Stores, Inc., 708 P.2d 1385, 1390 (Colo.App.). Defendants' Motion for Summary Judgment as to Plaintiff's Second Claim Relief should be granted. CONCLUSION Plaintiff has failed to present a prima facie case supporting her Title VII claim of retaliation or to show by a preponderance of the evidence that Defendants' bona fide business purpose asserted as the reason for Plaintiff's termination is not true but is pretext for discrimination. Plaintiff's First Claim for Relief should be dismissed and summary judgment should enter in favor of Defendants pursuant to Fed. R. Civ. P. 56(c). Further, in accordance with Title VII, Defendants are entitled to attorney fees as the prevailing party in this matter according to EEOC v. Christianberg Garment Co., 550 F.2d 949 (4th Cir. 1977) and 42 U.S.C. § 1988. If attorney fees are to be awarded, Defendants request a separate hearing be held on the amount and reasonableness of said fees, expenses, and costs. Plaintiff's Second Claim for Relief, a state law tort claim of Intentional Interference with a Contractual Relationship, should also be dismissed, Neuman should be dismissed as a Defendant, and summary judgment should enter in favor of Defendants based upon the undisputed facts of the case and Plaintiff's inability to meet the elements of this claim pursuant to Colorado law. Defendants further request upon dismissal they be awarded attorney fees, costs, and such other and further relief as this Court deems proper pursuant to the frivolous, unreasonable, and groundless filing of this claim as is allowed by C.R.S. § 13-17-101.

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Defendants also request a separate hearing as to any attorney fees, costs, and expenses that may be allowed. In the event that this Court dismisses Plaintiff's Title VII claim, but not Plaintiff's state law tort claim, Defendants request that the Court dismiss Plaintiff's state law claims, pursuant to 28 U.S.C § 1367(3), as the Court should decline to exercise its supplemental jurisdiction once the Court has dismissed all claims over which it has original jurisdiction. WHEREFORE, Defendants respectfully request that their Motion for Summary Judgment be granted; that they be awarded their costs and reasonable attorney fees as requested herein; and for such further relief as the Court deems proper. Respectfully submitted this 21st day of July 2005.

/s Jan E. Montgomery Jan E. Montgomery Christopher J. W. Forrest Andrew C. Iverson Hamilton and Faatz, A Professional Corporation 1600 Broadway, Suite 500 Denver, Colorado 80202 Telephone: 303-830-0500 FAX 303-860-7855 E-mail: [email protected] Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of July 2005, a true and correct copy of the foregoing Defendants' Reply to Plaintiff's Response to Motion for Summary Judgment was placed in the United States Mail, postage prepaid, addressed to: Kara T. Birkedahl, Esq. Steven Silvern, Esq. Silvern Law Offices PC 1801 Broadway, Suite 930 Denver, CO 80202 /s Deidre Vivian Hamilton and Faatz, P.C. 1600 Broadway, Suite 500 Denver, Colorado 80202 Telephone: 303-830-0500 FAX 303-860-7855 E-mail: [email protected]

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