Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:04-cv-01056-EWN-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01056-EWN-OES CONNIE J. REYNOLDS, Plaintiff, v. COBE CARDIOVASCULAR, INC., Defendant. ______________________________________________________________________________ DEFENDANT'S PROPOSED JURY INSTRUCTIONS ______________________________________________________________________________

Defendant COBE Cardiovascular, Inc., by its attorney, Michael D. Nosler of Rothgerber Johnson & Lyons LLP, respectfully submits its Proposed Jury Instructions that remain disputed by Plaintiff as follows:

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DEFENDANT'S INSTRUCTION NO. STATEMENT OF THE CASE The parties' positions can be summarized as follows:

1

Plaintiff Connie J. Reynolds was employed by Defendant COBE Cardiovascular, Inc. as its Integrated Disability Case Manager until her termination from employment by defendant on September 9, 2003. Plaintiff claims that her termination was motivated by her complaints of age and sex discrimination to her supervisor, Sharon Oliver, made approximately one month before her termination, and also due to a letter that she presented to Oliver on the morning of her termination, in which she complained that a final written warning she had received the previous day was actually motivated by discrimination against her due to her age. Plaintiff brings this lawsuit against COBE asserting claims under the Age Discrimination In Employment Act, which I will refer to as the ADEA and the Civil Rights Act of 1964, which I will refer to as Title VII. Defendant denies that it retaliated against plaintiff in any way and further denies that any of its actions violated either the ADEA or Title VII. Defendant claims that following an incident in late August 2003, in which employees of the second shift were critical of the way that Plaintiff handled herself in dealing with an injured employee, Defendant issued Plaintiff a final written warning, requiring that she modify her behavior. Defendant further claims that, after Plaintiff was presented with the final written warning and declared that she had done nothing wrong and would act the same way again, Defendant decided to terminate her employment. Defendant claims that this decision was made on the evening of September 8, 2003, and therefore had nothing to do with the letter Plaintiff presented to the Defendant the following morning.

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DEFENDANT'S INSTRUCTION NO.

2

STIPULATIONS AND FINDINGS BY THE COURT The parties to this lawsuit have agreed to certain facts which you must treat as having been proved, and this Court has determined that certain facts are substantially without controversy and therefore must be treated as true. Those facts are: 1. 2. Plaintiff is a female, born on December 10, 1945. Plaintiff worked for Defendant from April 1996 through September 9, 2003, as a

disability case manager and nurse. 3. At all times during her employment at COBE, Plaintiff understood that she was

employed-at-will. 4. Plaintiff's job duties while employed at COBE included: training, tracking

Family and Medical Leave Act compliance, administering COBE's short-term disability policy, and managing COBE's worker's compensation and ADA claims. 5. In April of 2003, Carolyn Byram prepared an informal performance review of

Plaintiff, stating "[i]t is critical . . . that you are sensitive to what and how you communicate your message to employees." 6. 7. On August 27, 2003, a COBE employee became ill and fell to the floor in pain. Thongsmough Khamsitthisack and Sally Pena, both COBE employees, witnessed

Plaintiff's interaction with the emergency response professionals attending to the injured employee on August 27, 2003. 8. Khamsitthisack and Pena were of the opinion that Plaintiff's behavior was

inappropriate, and both employees reported their opinions to their supervisor or manager.

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9.

Khamsitthisack also received complaints from other employees who disapproved

how Plaintiff behaved during the incident. 10. Captain Michael Piper of the Arvada Fire Department believed Plaintiff's

behavior was unprofessional and made his job more difficult. 11. Sharon Oliver received reports of employees' complaints regarding Plaintiff's

behavior during the August 27, 2003, incident and proceeded to commence an investigation. As part of the investigation, she met with employees, Captain Piper, and Plaintiff, to discuss the incident. Ms. Oliver then discussed her findings with Carolyn Byram. 12. On the morning of September 8, 2003, Oliver and Byram presented Plaintiff with

a final written warning. 13. Plaintiff did not acknowledge any inappropriate actions with respect to the

August 27, 2003, incident, and told Oliver and Byram that she would handle herself in the same manner if the situation were to repeat itself. 14. After the meeting with Plaintiff on September 8, 2003, Oliver and Byram met

with each other later in the day. 15. On the evening of September 8, 2003, Laurie Sadler, COBE's payroll manager,

came to COBE's offices in order to prepare Plaintiff's final paychecks. 16. Computer records confirm that Plaintiff's termination letter and proposed

severance agreement were prepared and last revised on September 8, 2003. 17. Plaintiff was involuntarily terminated on the morning of September 9, 2003,

shortly after Plaintiff presented her response to the written warning of September 8, 2003.

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18.

Plaintiff was not replaced by a younger person in her employment position. In

fact, Plaintiff's position was eliminated, and Plaintiff was not replaced.

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DEFENDANT'S INSTRUCTION NO.

3

CLOSE TIMING BETWEEN PROTECTED ACT AND ADVERSE ACTION While the close timing between and adverse employment action and a protected activity is a factor that you should consider in determining whether the defendant retaliated against the plaintiff for complaining about discrimination, close timing alone is not sufficient to establish retaliation.

Annett v. University of Kansas, 371 F.3d 1233, 1240-41 (10th Cir. 1999).

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DEFENDANT'S INSTRUCTION NO.

4

DEFENDANT'S LEGITIMATE BUSINESS JUSTIFICATION It is not necessary that the defendant, in offering legitimate, non-retaliatory reasons for taking the actions that it took, was right or correct in its reasons, but only that it believed them in good faith.

Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1426 (10th Cir. 1993) (approving instruction); Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999).

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DEFENDANT'S INSTRUCTION NO. AT WILL EMPLOYEE

5

Plaintiff was employed as an at-will employee. Under Colorado law, an at-will employment relationship may be terminated by either party without cause and without notice, and said termination does not generally give rise to any cause of action, unless the termination violates a statute or is otherwise inconsistent with the law.

Wiseheart v. Meganck, 66 P.3d 124, 126 (Colo. App. 2003), cert. denied 2/24/03; Collins v. Mountain College, 56 P.3d 1132, 1135 (Colo. App. 2002), cert. denied, 10/21/02.

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Respectfully submitted this 8th day of February, 2006.

/s Michael D. Nosler Michael D. Nosler Rothgerber Johnson & Lyons LLP 1200 17th Street, Suite 3000 Denver, Colorado 80202 Telephone: (303) 623-9000 Fax: (303) 623-9222 [email protected] Attorney for Defendant COBE Cardiovascular, Inc.

CERTIFICATE OF SERVICE I hereby certify that on the 8th day of February, 2006, I electronically filed the foregoing DEFENDANT'S PROPOSED JURY INSTRUCTIONS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: John R. Olsen, Esq. Olsen & Brown LLC 8362 Greenwood Drive Niwot, CO 80503 Telephone: (303) 652-1133 Fax: (303) 652-3701 [email protected] s/ Michael D. Nosler Michael D. Nosler Attorney for Defendant COBE Cardiovascular, Inc. Rothgerber Johnson & Lyons LLP 1200 17th Street, Suite 3000 Denver, Colorado 80202-5855 Tel: (303) 623-9000 Fax:(303) 625-9222 E-mail: [email protected]

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