Free Proposed Scheduling Order - District Court of Colorado - Colorado

Case 1:04-cv-01117-WDM-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01117-WDM-MJW MARK A. STEIN, Plaintiff, v. BURT-KUNI ONE, LLC, Defendant. SCHEDULING ORDER 1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL AND PRO SE PARTIES The Scheduling Conference was held on December 12, 2005. Plaintiff Mark Stein was represented by Susan J. Eckert, Santarella & Eckert, LLC, 7050 Puma Trail, Littleton, Colorado 80125, (303) 932-7610. Defendant Burt-Kuni One, LLC, was represented by Herbert S. Schiff and Thomas M. Condas, Ritsema & Lyon, P.C., 111 S. Tejon Street, Suite 700, Colorado Springs, Colorado 80903, (719) 520-1299. 2. STATEMENT OF CLAIMS AND DEFENSES a. Plaintiff(s): Plaintiff's claims are for: (1) gender discrimination and sexual

harassment, (2) for retaliation and wrongful discharge for engaging in protected activity pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e2000e-17, and (3) unpaid compensation under the Colorado Wage Claim Act, as amended, C.R.S. §§ 8-4-101-8-4-127. Plaintiff was employed by Defendant as a Sales Consultant at Defendant's

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facility located at 6160 East Colfax Avenue, Denver, Colorado 80220 for an eleven month period. Plaintiff successfully performed the duties of his position during his tenure. Plaintiff claims during Plaintiff's employment the General Sales Manager subjected Plaintiff to unwelcome and inappropriate touching and other sexual comments and conduct constituting sexual harassment. Subsequently, when Plaintiff objected to the General Sales Manager's conduct, the General Sales Manager treated Plaintiff unfairly and developed a hostile and retaliatory attitude toward Plaintiff. This, in turn, negatively impacted and interfered with Plaintiff's efforts to complete his car sales. In addition, the sales managers prevented Plaintiff from being promoted to a management position with the opening of Defendant's new flagship store at 10750 E. Arapahoe Road, Centennial, Colorado. The discrimination and retaliation culminated in Plaintiff's termination. During the course of Plaintiff's employment, Plaintiff complained to Defendant's senior management about the alleged gender discrimination and sexual harassment in July 2003. As such, Plaintiff engaged in protected activity under Title VII relating to the conduct of the General Sales Manager. Within one hour of engaging in protected activities under Title VII, Plaintiff was suspended from his position without pay for two days. After Plaintiff engaged in the protected activity, the General Sales Manager intensified his retaliatory conduct toward Plaintiff. Plaintiff was disciplined a second time as part of Defendant's internal investigation into Plaintiff's gender and sexual harassment complaints. Plaintiff filed a gender discrimination charge with the EEOC on July 30, 2003, against Defendant. Upon information and belief, the EEOC notified Defendant of Plaintiff's EEOC 2

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charge on or about August 6, 2003. At that time, Defendant placed Plaintiff on leave without pay. Plaintiff felt compelled to request a leave of absence until Defendant's new store opened or until September 1, 2003. Plaintiff asserts this request was due to the retaliation and hostile work environment Plaintiff was experiencing as a result of his protected activities. While Plaintiff was on his leave of absence, Defendant opened the new store on or about August 22, 2003. However, Defendant did not notify Plaintiff of the opening of the new store. Instead, Plaintiff learned of the opening through a co-worker and immediately requested to return to work. Defendant apparently had no intention of allowing Plaintiff to work at the new store Plaintiff returned to work for one week. Then, Defendant terminated Plaintiff from his position on August 29, 2003, causing Plaintiff significant economic and emotional damage. As a result of the termination, Plaintiff was unemployed or underemployed for a 27 month period to date thereby losing his income, benefits and retirement plan. At the time of Plaintiff's termination, Plaintiff was a few weeks away from his one year anniversary with the company. Defendant retaliated against Plaintiff by intentionally terminating Plaintiff right before his one year anniversary. Defendant then refused to pay Plaintiff for all accrued vacation pay, claiming that Plaintiff was not entitled to his accrued vacation pay because he was three weeks away from his one year anniversary. In addition, Defendant's retaliatory and discriminatory termination prevented Plaintiff from obtaining eligibility in the company's 401(k) plan. Due to the loss of his health insurance coverage and loss of income, Plaintiff was unable to continue his burgeoning racing career in 2004. Specifically, Plaintiff had to forego a necessary surgery, was unable to race without health 3

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insurance in case of accident, and lacked sufficient income to finance his racing career. As a result, Plaintiff lost racing winning income and other related economic benefits. In addition, due to Plaintiff's loss of income, Plaintiff had to cancel and postpone his wedding for one year causing him emotional stress. Plaintiff mitigated his damages by looking for comparable work in the Denver metro area and accepting various positions with other car dealerships to offset some of his economic losses. However, Plaintiff's interim earnings did not offset completely Plaintiff's losses nor did these jobs provide Plaintiff with any management opportunities. Plaintiff filed two charges of discrimination against the Defendant with the Colorado Civil Rights Division and the Equal Employment Opportunity Commission. The EEOC did not issue any determinations. Instead, the EEOC issued the two Notice of Right to Sue letters upon request from Plaintiff after the administrative review period was exhausted but prior to the issuance of any determinations by the EEOC. Plaintiff incorporates by reference herein the allegations of his complaint relating to the specific details of his claims. b. Defendant(s): The Plaintiff was hired as a sales consultant for Defendant

on September 20, 2002. The Plaintiff was hired by Defendant on an "at-will" basis. No employment contract exists. At the commencement of his employment, the Plaintiff was provided with an employee handbook which contained sections on "unlawful discrimination and harassment." In addition, the Plaintiff signed a document entitled "Kuni Automotive, Inc. and Affiliates Discrimination and Harassment Policy." The Plaintiff attended a discrimination training seminar on October 24, 4

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2003. Based upon the above and other training opportunities, the Plaintiff was fully aware of Defendant's policies regarding discrimination and harassment. The Plaintiff claimed that he was subjected to unwelcome and inappropriate touching from a male general sales manager. The Plaintiff alleges inappropriate sexual comments and conduct constituting sexual harassment. The Plaintiff first complained about these activities on July 7, 2003. Defendant denies these activities took place. Defendant denies that the Plaintiff was subjected to unlawful and inappropriate conduct by the general sales manager. The Defendant agrees that the Plaintiff was terminated from his position as a sales consultant. Defendant terminated the Plaintiff due to poor performance issues. The Plaintiff instituted the allegations of discrimination and retaliation as an offensive step in order to attempt to avoid termination based upon his own conduct and performance. The Plaintiff alleges that "sales managers" prevented the Plaintiff from being promoted to a management position as a form of discrimination and retaliation. Defendant will demonstrate that the lack of promotion for the Plaintiff had nothing whatsoever to do with "discrimination and retaliation." Defendant nonetheless took the Plaintiff's allegations seriously and investigated his complaints, finding no basis for the allegations of discrimination or sexual harassment. Defendant denies there was a hostile work environment experienced by the Plaintiff secondary to the exercise of "his protected activities." The Plaintiff alleges entitlement to vacation. Based on the clear written policy of Defendant, the Plaintiff was not entitled to vacation until he had worked for one year. Due to his 5

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own actions, he was terminated from employment before the vacation benefit had accrued. The Plaintiff has brought a third claim for relief in the nature of violation of the Colorado Wage Claim Act. At the time of his termination, the Plaintiff made a disputed claim for future commissions. To avoid litigation, Defendant paid the Plaintiff what was believed to be the amount he had requested. Defendant believes there was an accord and satisfaction as it pertains to the Colorado Wage Claim Act claim. Defendant denies that there is any basis for gender discrimination and sexual harassment or for retaliation and wrongful discharge for engaging in protected activity pursuant to Title VII of the Civil Rights Act of 1964. The Plaintiff filed a charge of discrimination against the Defendant with the Colorado Civil Rights Division and the Equal Employment Opportunity Commission. The EEOC issued a determination, finding no reasonable cause to believe that the allegations made in the Plaintiff's charge were true and that a Notice of Right to Sue was issued. As additional defenses, the Defendant has pled affirmative defenses including that the Plaintiff has failed to state a claim upon which relief can be granted pursuant to Rule XII(B)(6), F.R.C.P., failure to timely file a Charge of Discrimination, that there may be claims alleged in the Plaintiff's Complaint broader than the allegations of his Charge of Discrimination, that Defendant has acted at all times with good faith toward the Plaintiff, that Plaintiff's claims are barred, in whole or in part, by the Workers' Compensation laws of the State of Colorado, equitable remedies of waiver and estoppel, accord and satisfaction, failure to mitigate damages, the additional equitable remedy of unclean hands, that Plaintiff's claims are frivolous and known to Plaintiff to be frivolous and are being pursued in bad faith and for vexatious reasons for the 6

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purpose of harassing Defendant, that Plaintiff's claims for punitive damages are barred for failure to plead facts sufficient to support allegations of malice, oppression, or fraud, statute of limitations, and that the "wages" claimed in the third claim for relief are not wages or compensation earned, vested or determinable as defined by Colorado's statute. Defendant has requested judgment and for dismissal of Plaintiff's Complaint, for an Order awarding attorneys' fees and costs, including any expert witness fees or other costs as deemed appropriate. Defendant has reviewed the Plaintiff's computation of damages. Defendant denies that the Plaintiff has incurred any damages whatsoever. Defendant further believes that damages alleged are not incidental or have been caused by actions of the Defendant. Defendant denies the accuracy of the computation of damages. 3. UNDISPUTED FACTS The following facts are undisputed: 1. Defendant is a Washington corporation with its principal office located at 203 SE Park Plaza Drive, Suite 290, Vancouver, Washington 98684. 2. Defendant is licensed to conduct business in the State of Colorado and conducted business in the State of Colorado through the registered trade name of Burt-Kuni Honda with a facility located at 10750 E. Arapahoe Road, Centennial, Colorado 80112. 3. Plaintiff filed a charge of discrimination with the Colorado Civil Rights Division and the Equal Employment Opportunity Commission on or about July 30, 2003, 7

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and a second charge on or about October 7, 2003. 4. 5. Plaintiff is a male with a date of birth of April 4, 1972. Plaintiff was hired to work for Defendant on September 20, 2002, as a Sales Consultant. 6. Defendant terminated Plaintiff's employment on or about August 29, 2003. 4. COMPUTATION OF DAMAGES Plaintiff estimates the damages in this matter as follows. Plaintiff reserves the right to amend these damage calculations as additional investigation/ discovery is completed and upon retention of an economic damages expert. Plaintiff is seeking an order enjoining Defendant from engaging in unlawful employment practices in violation of Title VII. He also is seeking reinstatement along with a promotion to a management sales position with the company or, in lieu of reinstatement and the promotion, front pay in an amount to be proven at trial. In terms of back pay calculations, Plaintiff is seeking economic damages for the sexual harassment, gender discrimination and retaliation occurring during the course of his employment with Defendant including lost promotion opportunities, wages and benefits in 2003 (May, June, July, and August 2003) in the estimated amount of $20,000. In addition, Plaintiff is seeking economic damages in the form of back pay from August 29, 2003, through the date of trial, relating to the termination of his employment and the failure to promote along with any unpaid bonuses, pay increases plus interest, medical insurance payments, 401(k) matching funds, vacation pay and other company benefits. As a result of the termination and failure to promote to a 8

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management position, Plaintiff estimates his lost pay for the 27 month period since his termination to be $270,000 (27 months x $10,000.00 per month) less his interim earnings of $75,983.58 for a total loss of $194,016.42. This is based upon Plaintiff's information and belief that Defendant's sales managers averaged $10,000.00 per month in earnings during the interim 27 months. In addition, Plaintiff lost vacation pay, 401(k) plan benefits including beneficial tax treatment for deferred compensation and matching funds, health insurance coverage and training assistance valued at approximately $30,000. Plaintiff also seeks recovery of unpaid vacation pay of $600.00 accrued at the time of his termination and a penalty under the Colorado Wage Claim Act. These damages amounts will continue to accrue until the time of trial. In total, Plaintiff is seeking economic damages currently estimated at $244,616.42 along with reinstatement. In addition under Title VII, Plaintiff is entitled to compensatory damages in an amount to be proven at trial subject to the statutory limitation under 42 U.S.C. § 1981a. Plaintiff is seeking punitive/exemplary damages in an amount to be proven at trial. If Plaintiff prevails on his Title VII claim, he also is entitled to his attorneys' fees, including any expert witness fees, and other costs. Finally, Plaintiff is seeking an order awarding him any other equitable or legal relief deemed just and appropriate by this Court including pre- and post- judgment interest. Plaintiff earned $51,453.02 in his eleven month time period with Defendant as a top sales person for the dealership. Had Plaintiff continued to earn at the same rate for the next 27 intervening months, he would have earned $126,293.58 (average monthly earnings of $4,677.54 x 27). Thus, at a minimum, Plaintiff has lost $50,310.00 in wages ($126,293.58 ­ interim earnings of $75,938.58) to date based on average earnings of $4,677.54 per month as a top sales person at 9

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the East Colfax store. Defendant's business, however, changed dramatically one week before Plaintiff was terminated with the opening of its new, significantly larger and more upscale flagship store in Centennial, moving from the older, less prestigious location on East Colfax Avenue. Upon information and belief, in the time since Plaintiff's termination, a top sales person working for Defendant at the Centennial store averaged approximately $8,000.00 per month in wages from car sales and bonuses. As such, for the 27-month period to date, had Plaintiff continued to work at the Centennial store as a top sales person without being promoted to management, he would have earned $216,000.00 (27 x $8,000.00) in wages. That results in a loss of $140,016.42 ($216,000 ­ interim earnings of $75,983.58) in wages for this time period. Plaintiff intended to continue working for Defendant as a sales manager for many years and would be seeking front pay for a reasonable time period if he is not reinstated to a sales manager position, less any interim earnings. Finally, Plaintiff seeks recovery of $18,200.00 in damages for the costs relating to the termination of Plaintiff's racing career in 2004 due to the loss of health insurance and income for investment capital. This is based on lost racing earnings of $23,200.00 for 2004 less $5000.00, the current Kelly Blue Book value of Plaintiff's bikes. 5. REPORT OF PRECONFERENCE DISCOVERY AND MEETING UNDER FED. R. CIV. P. 26(f) a. Date of Rule 26(f) meeting.

The Rule 26(f) meeting was held on November 11, 2005. b. Names of each participant and party he/she represented. 10

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Susan J. Eckert participated on behalf of Plaintiff. Herbert S. Schiff and Thomas M. Condas participated on behalf of Defendant. c. Proposed changes, if any, in timing or requirement of disclosures under Fed. R.

Civ. P. 26(a)(1). Disclosure documents were exchanged on or before December 2, 2005. d. Statement as to when Rule 26(a)(1) disclosures were made or will be made.

Disclosures were made on or before November 25, 2005. Disclosure documents were exchanged on or before December 2, 2005. e. 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 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. Parties have agreed to exchange informally documents relating to damage calculations. 6. CONSENT All parties have not consented to the exercise of jurisdiction of a magistrate judge. 7. CASE PLAN AND SCHEDULE a. Deadline for Joinder of Parties and Amendment of Pleadings:

All parties shall be joined and pleadings amended on or before March 1, 2006. (See

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discussion in section7b, supra.). b. Discovery Cut-off:

Initially, the parties have agreed to pursue settlement with a formal settlement conference before the Magistrate Judge within 30 days from the December 12, 2005, Scheduling Conference with a moratorium on formal discovery during that time period. If the parties are unable to settle the claims during that time period, then the parties will begin formal discovery on January 17, 2006. All factual discovery shall be completed on or before July 3, 2006. If no settlement is reached on the claims upon completion of factual discovery, then the parties will proceed with the declaration of expert witnesses and expert discovery (See, section 7d, supra). All expert discovery shall be completed by October 2, 2006. c. Dispositive Motion Deadline:

All dispositive motions shall be filed on or before December 1, 2006. d. Expert Witness Disclosure (1) State anticipated fields of expert testimony, if any.

Plaintiff anticipates retaining an economic/damages expert and may retain a psychological expert relating to non-economic damages. Defendant anticipates retaining an economic/damages expert and a psychological expert relating to non-economic damages. (2) State any limitations proposed on the use or number of expert witnesses.

Each party shall be limited to three expert witnesses. (3) The parties shall designate all experts and provide opposing counsel and 12

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any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before August 1, 2006. (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 September 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:

Plaintiff anticipates the following depositions:
Name of Deponent Bob Rausch Sandi Strahle Judy Grinestaff Sunny Sivihok Name of Deponent Heidi Evans Sara Humbert Kelly Raio Rich Marshall Date of Deposition May-June 2006 May-June 2006 May- June 2006 May-June 2006 Date of Deposition May-June 2006 May-June 2006 May- June 2006 May-June 2006 Time of Deposition 9:00 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m. Time of Deposition 9:00 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m. Expected Length of Deposition 7 hours 7 hours 3 hours 7 hours Expected Length of Deposition 7 hours 7 hours 3 hours 3 hours

Plaintiff reserves the right to depose any individual identified in Defendant's disclosures or discovery responses as having knowledge of the facts relating to this case. Defendant anticipates the following depositions:

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Name of Deponent Mark Stein Tim Wieland Rebecca Redmond Person Most Knowledgeable from JR Motors Company Person Most Knowledgeable from John Elway Honda Person Most Knowledgeable from Mountain States Toyota Person Most Knowledgeable from Gateway Mazda Person Most Knowledgeable from Stevenson Toyota Person Most Knowledgeable from Plaintiff's current employer Person Most Knowledgeable from Answer Racing Person Most Knowledgeable from Factory Connection Person Most Knowledgeable from Hindson Clutch Sunny Sivihok (Evidentiary Deposition)

Date of Deposition May-June 2006 May-June 2006 May-June 2006 May-June 2006 May-June 2006 May-June 2006 May-June 2006 May-June 2006 May-June 2006 May-June 2006 May-June 2006 May-June 2006 May-June 2006

Time of Deposition 9:00 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m. 9:00 a.m.

Expected Length of Deposition 7 hours 4 hours 4 hours 3 hours 3 hours 3 hours 3 hours 3 hours 3 hours 3 hours 3 hours 3 hours 7 hours

Defendant reserves the right to depose any individual identified in Plaintiff's Disclosures or Discovery Responses as having knowledge of the facts relating to this case. The parties have agreed to conduct the factual depositions during the months of May and June 2006. The expert depositions shall be conducted during the months of August and September 2006. The parties anticipate that each deposition shall be completed within the sevenhour presumptive time limit. f. Interrogatory Schedule 14

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All interrogatories shall be served on or before May 15, 2006. g. Schedule for Request for Production of Documents

All requests for production of documents shall be served on or before May 15, 2006. h. Discovery Limitations: (1) depositions. The parties have agreed to the limit of fifteen depositions per side including expert witnesses. (2) Any limits which any party wishes to propose on the length of depositions. Any limits which any party wishes to propose on the number of

The parties have agreed to the presumptive limit of seven hours. (3) Modifications which any party proposes on the presumptive numbers of

depositions or interrogatories contained in the federal rules. The parties have agreed to the limit of fifteen depositions per side including expert witnesses. The parties have agreed to the presumptive numbers of interrogatories contained in the federal rules. (4) Limitations which any party proposes on number of requests for

production of documents and/or requests for admissions. The parties have agreed to limit requests for production of documents to twenty-five (including sub-parts) and requests for admissions to twenty-five. (5) None. 15 Other Planning or Discovery Orders

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8. SETTLEMENT The parties certify that they have discussed the possibility for a prompt settlement in this matter. The parties have been unable to settle this case to date. The parties previously mediated this matter before an EEOC mediator but were unable to settle the EEOC charges. However, based on the preliminary discussions, the parties believe that an additional settlement conference may be helpful. As such, the parties respectfully request that a formal settlement conference be scheduled before the Magistrate Judge within thirty days of the December 12, 2005, scheduling conference. During that time period, the parties have agreed to exchange documents relating to damages for purposes of facilitating settlement discussions. 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.

This case would require a seven-day jury trial. 10. DATES FOR FURTHER CONFERENCES a. A settlement conference will be held on________________________ at ______ o'clock __.m. It is hereby ordered that all settlement conferences that take place before the magistrate judge shall be confidential. ( ) Pro se parties and attorneys only need be present. 16

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( )

Pro se parties, attorneys, and client representatives with 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.)

( )

Each party shall submit a Confidential Settlement Statement to the magistrate judge on or before _______________ 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: __________________________________________________________________ __________________________________________________________________

c.

A final pretrial conference will be held in this case on __________________at _____ o'clock __.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. 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. 17

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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. DATED this ______ day of _____________ 2005. BY THE COURT:

_______________________________ United States Magistrate Judge

APPROVED: s/ Susan J. Eckert Susan J. Eckert Joseph M. Santarella Santarella & Eckert, LLC 7050 Puma Trail Littleton, Colorado 80125 T: (303) 932-7610 F: (303) 932-7316 [email protected] Attorneys for Plaintiff s/ Herbert S. Schiff Herbert S. Schiff Thomas M. Condas Ritsema & Lyon, P.C. 111 S. Tejon St., Suite 700 Colorado Springs, Colorado 80903 T: (719) 520-1299 F: (719) 520-1737 [email protected] Attorneys for Defendant

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