Free Proposed Pretrial Order - District Court of Colorado - Colorado

Case 1:04-cv-01122-LTB-MJW

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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.

FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES The Final Pretrial Conference was held on July 11, 2005 at 9:00 a.m., before Magistrate Judge Michael J. Watanabe: Appearing for the parties: For the Plaintiff: Kara T. Birkedahl, Esq. Silvern Law Offices, P.C. 1801 Broadway, Suite 930 Denver, Colorado 80202 (303) 292-0044 E-mail: [email protected] For the Defendants: Jan E. Montgomery, Esq. Hamilton and Faatz, P.C. 1600 Broadway, Suite 500 Denver, Colorado 80202

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(303) 830-0500 E-mail: [email protected] 2. JURISDICTION The jurisdiction of this Court is based on 42 U.S.C. §2000 e-5 (f), 28 U.S.C. §1331 and §1343 and 42 U.S.C. §1988. The Court also has jurisdiction pursuant to 28 U.S.C. §§2201 and 2202 relating to declaratory judgements. This Court has supplemental jurisdiction over Plaintiff's claims arising under the common law of Colorado pursuant to 28 U.S.C. §1367. 3. CLAIMS AND DEFENSES A. Plaintiff's Claims: Plaintiff, Debora K. Rudd, was terminated by Defendant Burlington Coat Factory Warehouse of Colorado, Inc. ("BCFW") on June 27, 2003, after 13 years of employment with the company. The sole reason for her termination was that on June 13, 2003, she left the store to retrieve a statement that her daughter (Jesica Rudd) had prepared regarding sexual harassment that she (the daughter) had been experiencing at BCFW. (Jesica Rudd, who was 17 at the time was also employed at BCFW). BCFW maintains that Ms. Rudd was not terminated for engaging in protected activity but rather because (1) either she did not have a supervisor's permission to go to her car or (2) if she did have permission, she failed to punch out in violation of company policy. Ms. Rudd did have permission of the assistant store manager, Raquel Romero, to go to her car that day. Moreover, it was not the policy or practice that an employee had to punch out before leaving the store with managerial permission - particularly when the purpose was related to

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company business such as a sexual harassment investigation. Ms. Rudd claims that she was terminated in violation of §704(a) of Title VII of the Civil Rights Act of 1964, as amended, ("the Act") which protects employees from discrimination for opposing any practice made unlawful by the Act or for participating in any manner is an investigation under the Act. Ms. Rudd has also brought a state law claim against Michael Neuman, the district manager at BCFW, for intentional interference with contractual relationships. Ms. Rudd has voluntarily dismissed her claim against the Defendants for intentional interference with a prospective business relation. Ms. Rudd seeks a declaratory judgment that Defendant BCFW has violated her right to be free from discrimination in the work-place; an injunction ordering BCFW to make her whole with full back pay, lost benefits and front pay; compensatory damages for past and future economic and non-economic losses; exemplary damages; attorney fees; interest; and such other relief as the Court deems just and appropriate. B. Defendants' Claims and Defenses: BCFW asserts that the sole reason for Plaintiff's termination was solely for her second violation in less than one month of BCFW's written timekeeping policy Stealing time is considered a serious offense which can result in termination for the first offense and is set forth in its policy manual. Plaintiff's first offense occurred on May 16, 2003 and Plaintiff admits that she did not clock out for a one-hour lunch. She received a final written warning for this which advised her 3

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that any further violation could result in termination. Length of service is not a factor to be considered for violation of policy. On June 13, 2003, Plaintiff clocked out for a smoke break, clocked back in, and a few minutes later again left the store without clocking out for approximately 11 minutes. She claims she left to get a statement written by her daughter, Jesica Rudd, related to a claim of improper comments previously made to Jesica Rudd by three male coworkers. She alleges that she had permission, was on company business, and engaged in protected activity. Jesica Rudd's claim of harassment was first made to Michael Neuman, District Manager, on June 10, 2003. Neuman immediately began an investigation and requested that Jesica Rudd provide a written statement of the comments made, who made them, and of any witnesses. Defendants assert that Plaintiff's purported reason to go to her car does not rise to "protected activity" as she had no responsibility or involvement in her daughter's claims. No one asked her to get her daughter's statement, nor was any deadline given to Jesica Rudd to provide her statement. In fact, her statement was not provided to BCFW's Human Resource Department until approximately June 22, 2005. Plaintiff admits that while at her car on June 13, on company paid time, she called an attorney to find out if she had the legal right to be present in any meeting between store managers, Neuman, and her daughter as she had demanded prior to the harassment allegations when Mr. Neuman was discussing Jesica's work schedule and department assignment. She also called her daughter before returning to the store. BCFW asserts that this was personal business, not protected activity, and a violation of company policy. Nonetheless, Neuman conducted a careful 4

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review of the videotape, spoke with the loss prevention officer who reported the violation to Neuman, and spoke with store managers as to whether permission was given to leave without clocking out. No one gave permission to leave without clocking out and only one recalled giving Plaintiff permission to go to her car, but said this permission was for a different day, not the 13th. There is no admissible evidence which meets the causation element of Plaintiff's Title VII claim or that the stated nonretaliatory business purpose is pretextual. All evidence supports Neuman's conclusion that Plaintiff violated the policy was genuine and not in retaliation. BCFW also asserts that Plaintiff's conduct removes her from any protection otherwise available under Title VII. Plaintiff also asserts a state law tort claim against Neuman alleging that he wrongfully interfered with her contract with BCFW. Neuman asserts that at all times relevant, he had the authority to discipline and terminate employees and he was acting within the scope of his authority when he terminated Plaintiff. There is no evidence to support Plaintiff's claim that Neuman's sole motive was to harass or retaliate against Plaintiff. Plaintiff as an "at will" employee had only a "future expectancy," not a legal right to have continued employment. Neuman was not acting improperly but solely in furtherance of BCFW's policies and interests, not out of malice or with personal self-serving animosity or interests. There was no discriminatory intent as a factor in the adverse employment decision at the time it was made. Without this evidence, as a matter of law this claims fails.

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4. STIPULATIONS The following facts are undisputed: 1. 2. Rudd began employment with BCFW on or about 1990. At all relevant times, BCFW employed in excess of 15 employees for at

least 20 calendar weeks and was further engaged in an industry affecting interstate commerce. 3. At and around the time of her termination in June 2003, Ms. Rudd was

working in the Receiving Department of BCFW as a Receiving Associate. 4. Rudd's daughter, Jesica Rudd, then 17, was also working in the same

department as a Receiving Associate. 5. 6. fraud. 7. 2001. 8. By Rudd's decision, she resigned from those duties April 1, 2002 and Rudd was Neuman's District Secretary beginning approximately November Neuman was and is a District Manager for BCFW Corp. On or about June 27, 2003, Neuman terminated Rudd for alleged timecard

requested she be placed in the Receiving Department at BCFW. 9. 10. Neuman had authority to hire and fire employees, including Rudd. Rudd suffered no change in pay when she chose to transfer to the position

of Receding Associate. 11. At all relevant times, Rudd was an at-will employee, not subject to a union

or any other contract of employment, understood that she could quit at any time and could be 6

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terminated at any time without cause. 12. 2003. 13. Rudd was given a final written warning for violation of the timekeeping Rudd did not clock out for a potluck lunch held at the store on May 16,

policy related to her failure to clock out for the lunch break on May 16, 2003 on or about June 5, 2003. 14. in the parking lot. 15. Chris Limppo, who was the Loss Prevention Officer in June 2003, reported Rudd left the store without clocking out on June 13, 2003 to go to her car

to Neuman that Rudd left the store without clocking out on June 13, 2003. 5. PENDING MOTIONS 1. Defendant Burlington Coat Factory Warehouse's Motion for Summary

Judgement Pursuant to Fed. R.Civ.P. 56(c) dated May 2, 2005 is still pending. Plaintiff filed her response on July 6, 2005. Defendants' reply is currently due on July 21, 2005. 6. WITNESSES a. NON-EXPERT WITNESSES Plaintiff's Non-Expert Witness: 1. Witnesses Plaintiff will call: Please see Exhibit 1, attached. 2. Witnesses Plaintiff may call: Please see Exhibit 1, attached. 7

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3.

Witnesses whose testimony Plaintiff expects to present by means of a deposition or transcript: None at this time.

Defendant's Non-Expert Witnesses: 1. Witnesses Defendants will call: Please see Exhibit 2, attached 2. Witnesses Defendants may call: Please see Exhibit 2, attached 3. Witnesses whose testimony Defendants expect to present by means of a deposition or transcript:

b.

EXPERT WITNESSES: There were no experts endorsed by either Plaintiff or Defendants.

7. EXHIBITS a. 1. Plaintiff's Exhibits: Please see Exhibit 3, attached hereto. 2. Defendants' Exhibits: Please see Exhibit 4, attached hereto. b. Copies of listed exhibits must be provided to opposing counsel and any pro

se party no later than five days after the final pretrial conference. The objections contemplated by 8

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Fed.R.Civ.P.26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided.

8. DISCOVERY Except as noted herein, discovery has been completed. However, both parties remain under an obligation to supplement their previous discovery responses pursuant to Fed.R.Civ.P. 26(e). Defendants are still attempting to locate certain documents and tapes requested by Plaintiff in discovery and will provide same immediately if they are located. Defendants may request some additional discovery after reviewing Plaintiff's response to their Motion for Summary Judgement.

9. SPECIAL ISSUES None.

10. SETTLEMENT Undersigned counsel for the parties certify that: a. Counsel for the parties met in person on January 10, 2005, to discuss in

good faith the settlement of this case. b. The participants in the settlement conference included counsel, party

representatives, and any pro se party. c. The parties were promptly informed of all offers of settlement. 9

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d.

Counsel for the parties and any pro se party do intend to hold future

settlement conferences. e. It appears from the discussion by all counsel and any pro se party that there

is some possibility of settlement. f. Counsel for the parties and any pro se party considered ADR in accordance

with D.C.COLO.L.CivR.16.6.

11. OFFER OF JUDGMENT Counsel acknowledge familiarity with the provisions of rule 68 of the Federal Rules of Civil Procedure (Offer of Judgement) and have discussed it with the clients against whom claims are made in this case.

12. EFFECT OF FINAL 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. This 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 pleadings. Notwithstanding the above, this Final Pretrial Order may be amended, modified or supplemented by the anticipated Trial Preparation Conference Order or any order entered during 10

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the trial preparation conference which subsequent orders are anticipated and incorporated by such reference.

13. TRIAL AND ESTIMATED TRIAL TIME: FURTHER TRIAL PREPARATION PROCEEDINGS Trial in this matter is in front of a jury. The estimated length of trial is five (5) days. The situs of this trial is the U.S. District Court, District of Colorado, 901 - 19th Street, Denver, Colorado.

DATED this _______ day of __________ 2005.

BY THE COURT:

__________________________________________ United States Magistrate Judge Michael J. Watanabe

\

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APPROVED:

/s Kara T. Birkedahl Kara T. Birkedahl, Esq. Silvern Law Offices, P.C. 1801 Broadway, Suite 930 Denver, Colorado 80202 Telephone: 303-292-0044 FAX: 303-292-1466 E-mail: [email protected] Attorney for Plaintiff

/s Jan E. Montgomery Jan Montgomery, Esq. Hamilton and Faatz, P.C. 1600 Broadway, Suite 500 Denver, Colorado 80202 Telephone: 303-830-0500 FAX 303-860-7855 E-mail: [email protected] Attorney for Defendants

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