Free Trial Brief - 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-1056-EWN-OES CONNIE J. REYNOLDS, Plaintiff, v. COBE CARDIOVASCULAR, INC., Defendant.

DEFENDANT COBE CARDIOVASCULAR, INC.'S TRIAL BRIEF

Defendant COBE Cardiovascular, Inc. ("COBE"), by its counsel, hereby submits the following Trial Brief. INTRODUCTION While this matter was originally postured as an employment case involving claims of discrimination on three different bases, retaliation and breach of implied contract, all that remains for the trial scheduled for the week of February 13, 2006, is whether COBE retaliated against Plaintiff Connie J. Reynolds ("Plaintiff") in violation of Title VII and/or the ADEA by issuing her a final written warning on September 8, 2003, and subsequently terminating her employment the following day. The relevant facts are set forth below. STATEMENT OF FACTS COBE manufactures and sells medical equipment. Plaintiff was hired by COBE in 1996 to manage the company's workers' compensation claims. Over time, Plaintiff's responsibilities at

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COBE increased until Plaintiff became the Integrated Disability Case Manager. In that position, Plaintiff was responsible for overseeing all workers' compensation claims, administering COBE's medical leave policies, and otherwise providing medical care to COBE employees as the company's occupational health nurse. As COBE's first point of contact for employees with medical issues, it was important that Plaintiff be approachable and responsive to employees' medical needs. Yet, during her employment, Plaintiff received criticism and was counseled on several occasions regarding her demeanor towards employees who came to her with medical problems. On the evening of August 27, 2003, Plaintiff received a call from a second-shift supervisor that one of the employees on the shift had collapsed and was complaining about being in pain. The Plaintiff spoke to the collapsed employee on the phone and urged him to, "get up and walk around, even if it hurt." Plaintiff then advised the supervisor that she would come down to the facility from her home nearby. Unbeknownst to Plaintiff, the supervisor had also called "911," which resulted in the Arvada Fire Department also being summoned to the facility. When the Plaintiff arrived, the fire department was already there. Witnesses described the Plaintiff as "loud" and "mad" that the fire department had been contacted, and stated that she interfered with the fire department's ability to care for the injured employee. Employees also described Plaintiff as caring more about the facility being inconvenienced than the employee being treated. The following week, COBE instituted an investigation as a result of the concerns raised by employees who witnessed the Plaintiff's behavior that evening. As part of the investigation,
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COBE's Human Resources Manager, Sharon Oliver ("Oliver"), interviewed Plaintiff, the employees on site that evening, and the fire chief who had responded to the 911 call. At the conclusion of its investigation, COBE determined that Plaintiff's actions on the evening of August 27th were unacceptable and prepared a final written warning for the Plaintiff in which she was required to show immediate and sustained improvement in her demeanor. However, when Plaintiff received the final written warning, she showed no remorse for her actions, stating instead that she would not change anything she did and intended to act in the same way in the future. Due to Plaintiff's failure to accept responsibility for her behavior and her affirmative refusal to modify her behavior, COBE then decided to terminate Plaintiff's employment. COBE made the decision to terminate Plaintiff's employment on September 8, prepared all of the termination paperwork, and even called the payroll manager into the office that evening to cut the final paychecks. Oliver and COBE's Vice President of Human Resources, Carolyn Byram ("Byram"), planned to meet with Plaintiff first thing on September 9, to advise her of her termination. However, when Plaintiff arrived at work that morning, she immediately presented Oliver with a typewritten memorandum in which she stated she would now comply with the requirements of the written warning, but also accused Oliver and Byram of issuing the final written warning against her because of her age. Approximately 15 minutes later, Oliver and Byram met with Plaintiff and terminated her employment.

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LEGAL ISSUES I. PLAINTIFF WILL NOT BE ABLE TO OFFER SUFFICIENT EVIDENCE OF PRETEXT AND, THEREFORE, A DIRECTED VERDICT AT THE CLOSE OF PLAINTIFF'S CASE IS APPROPRIATE. As set forth above, the only question that remains for trial in this case is whether COBE retaliated against Plaintiff in violation of Title VII or the ADEA when it decided to issue Plaintiff the final written warning and subsequently terminate her employment. "Title VII [and the ADEA make] it unlawful to retaliate against an employee because she has 'opposed' any practice made unlawful" under either statute. Annett v. Univ. of Kansas, 371 F.3d 1233, 1237 (10th Cir. 2004); 42 U.S.C. § 2000e-3(a) (2005); 29 U.S.C. § 623(d) (2005). Where, as here, there is no direct evidence of retaliation, courts analyze a retaliation claim brought pursuant Title VII or the ADEA under the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Annett, 371 F.3d at 1237 (Title VII); MacKenzie v. City & County of Denver, 414 F.3d 1266, 1278-79 (10th Cir. 2005) (ADEA). Under the McDonnell Douglas burden-shifting scheme, a plaintiff must first demonstrate a prima facie case of retaliation by demonstrating that: (1) she engaged in a protected activity; (2) the employer took an adverse employment action against her; and (3) a casual link exists between the protected activity and the adverse action. Annett, 371 F.3d at 1237; MacKenzie, 414 F.3d at 1278-79. If the plaintiff meets her prima facie burden, then the employer must offer a legitimate business reason for its actions. Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996). Upon doing so, the employer is entitled to judgment unless the plaintiff demonstrates

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that the proffered reason is a pretext for discrimination, "i.e. unworthy of belief." Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). In its Order dated December 16, 2005, the Court found that Plaintiff established a prima facie case for retaliation under both Title VII and ADEA. Dkt. No. 36, pp.28, 37. The Court further held that COBE articulated a legitimate, non-discriminatory reason for terminating Plaintiff. Id. at 29, 37. As such, all that remains to be litigated concerning COBE's liability is whether Plaintiff can prove pretext. COBE believes that Plaintiff will not be able to offer sufficient evidence to meet her burden of establishing that COBE's rationale was pretextual. COBE expects Plaintiff will only proffer evidence substantiating a close temporal proximity between her protected activity and COBE's adverse employment action to establish pretext. Yet, while close temporal proximity can establish the causal element of a prima facie retaliation case, the Tenth Circuit has held that even very close temporal proximity is not sufficient, alone, to establish pretext. Annett, 371 F.3d at 1240-41 (finding that "close temporal proximity is a factor in showing pretext, yet is not alone sufficient to defeat summary judgment"); Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1397-98 (10th Cir. 1997); Bolin v. Oklahoma Conf. of the United Methodist Church, 397 F. Supp. 2d 1293, 1306 (N.D.Okla. 2005); Hysten v. Burlington N. Santa Fe Ry. Co., 372 F. Supp. 2d 1246, 1254-55 (D.Kan. 2005) (listing cases). Because Plaintiff will not be able to meet her burden of establishing pretext, a directed verdict should be granted at the close of Plaintiff's evidence.

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II.

IF PLAINTIFF PREVAILS, PARTICULAR FACTS SHOULD REDUCE THE DAMAGE AWARD. If Plaintiff prevails on either retaliation claim, she may be entitled to damages. Certain

facts, however, will reduce any award the Plaintiff can obtain. A. Back and Front Pay

Carolyn Byram, the Vice President of Human Resources, will testify that COBE was working with its parent company and its sister subsidiaries to increase overall efficiency. As part of these efforts, individuals such as Byram were constantly evaluating the organization with an eye on eliminating surplus positions. It is an undisputed fact that Plaintiff's position was eliminated after her termination and Plaintiff was never replaced. Dkt. No. 36, p.33; Fed. R. Civ. Pro. 56(d). The evidence will further demonstrate that the duties associated with Plaintiff's position were absorbed or outsourced easily and quickly. These facts should curtail, if not eliminate, Plaintiff's entitlement to back and front pay damages. 1. Back Pay

"A plaintiff who suffers a violation of the ADEA or Title VII is entitled to recover monetary damages in the form of back pay." Goico v. The Boeing Co., 347 F. Supp. 2d 986, 990 (D.Kan. 2004). Under the ADEA, back pay is determined by the jury. Vernon v. Port Auth. of New York & New Jersey, 220 F. Supp. 2d 223, 235 (S.D.N.Y. 2002). Federal Jury Instructions state that back pay under the ADEA "is determined by calculating the amount that would have been earned from the date of adverse action to the date" the jury returns a verdict. 5 L. SAND ET
AL., MODERN FEDERAL JURY INSTRUCTIONS,

Inst. 88-38 (Matthew Bender 3d ed. 2005).

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Importantly, if "the plaintiff would have been terminated or discharged for non-discriminatory reasons prior to trial," back pay is "calculated from the date of adverse action to the date such discharge would have occurred." Id. With respect to Title VII, the decision to award back pay is within the equitable discretion of the district court. Baty v. Willamette Indus., Inc., 985 F. Supp. 987, 999 (D.Kan. 1997); 42 U.S.C. § 2000e-5(g)(1). Although there is no settled test for determining back pay under Title VII, courts have compared the plaintiff's present earnings to what she would have earned if she had remained at the original occupation. See, e.g., Buonanno v. AT&T Broadband, LLC, 313 F. Supp. 2d 1069, 1083 (D.Colo. 2004). Under either statute, back pay damages are limited to the time period between the alleged adverse employment action and the time the position was or would have been eliminated. See, e.g., Bartek v. Urban Redevelopment Auth. of Pittsburgh, 882 F.2d 739, 746-47 (3d Cir. 1989) (upholding district court's decision to not award back pay damages in ADEA case from time after position was eliminated). In this case, the evidence will reflect that Plaintiff's position would likely have been eliminated by the date of this trial, even if the events of August 2003 had not occurred. Representatives of COBE will confirm that the company was constantly looking to reduce costs and promote efficiencies. That Plaintiff's position would likely have been eliminated is illustrated by two facts. First, after Plaintiff's termination, COBE never looked to replace her. Second, the Plaintiff's duties were quickly and easily absorbed by other positions or were outsourced to independent contractors. Based upon these facts, Plaintiff's entitlement to back pay

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should be curtailed to the time that Plaintiff's position would have been eliminated, irrespective of the circumstances surrounding Plaintiff's actual termination. 2. Front Pay

Under both the ADEA and Title VII, when reinstatement is not possible, the entitlement to front pay is a remedy that must be determined by the district court. 29 U.S.C. § 626(b); 42 U.S.C. § 2000e-5(g); Whittington v. The Nordam Group Inc., 429 F.3d 986, 1000-01 (10th Cir. 2005) (ADEA); McCue v. State of Kansas Dep't of Human Res., 165 F.3d 784, 791-92 (10th Cir. 1999) (Title VII). "In determining whether, and how much, front pay is appropriate, the district court must attempt to make the plaintiff whole, yet the court must avoid granting the plaintiff a windfall." Abuan v. Level 3 Commc'ns, Inc., 353 F.3d 1158, 1176 (10th Cir. 2003) (internal quotations omitted). To that end, courts assess the plaintiff's duty to mitigate, "work life expectancy, salary and benefits at the time of termination, any potential increase in salary through regular promotions and cost of living adjustment, the reasonable availability of other work opportunities, the period within which the plaintiff may become re-employed with reasonable efforts and methods to discount any award to net present value." Whittington, 429 F.3d at 1000-01 (ADEA); Shore v. Federal Express Corp., 777 F.2d 1155, 1159-60 (6th Cir. 1985) (applying similar analysis in Title VII front pay assessment). Yet, courts have held that front pay damages are not appropriate if the plaintiff's position is eliminated before the trial occurs. Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1350 (11th Cir. 2000) (citing cases); see also Sandlin v. Corp. Interiors, Inc., 972 F.2d 1212, 1215 (10th Cir. 1992) ("[A]ny award of front pay is limited by the estimated remaining tenure plaintiff
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would have enjoyed with his company absent the discriminatory conduct."); Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1209 (7th Cir. 1989) ("Where the employer satisfies its burden of demonstrating that the employee would have lost his job based on legitimate, nondiscriminatory criteria, the award of front pay after the termination date is not appropriate."); Bartek, 882 F.2d at 747 (upholding district court's decision to not award front pay damages in ADEA case where plaintiff failed to identify a comparable position that existed after judgment was rendered); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1182 (2d Cir. 1996) (finding that district court did not abuse its discretion in Title VII case in only providing seven weeks of front pay since plaintiff's position was scheduled to be eliminated seven weeks after jury returned verdict). As stated above, this Court has already found that Plaintiff's position has been eliminated. Accordingly, front pay damages are inappropriate as a matter of law and, thus, should not be awarded even if the jury returns a verdict in the Plaintiff's favor. B. Punitive Damages

If Plaintiff prevails on her Title VII retaliation claim, any compensatory or punitive damages that she can be awarded are governed by 42 U.S.C. § 1981(a) (2005). Baty, 985 F. Supp. at 998. The very structure of § 1981a suggests a congressional intent to authorize punitive awards in only a subset of cases involving intentional [retaliation]. Section 1981a(a)(1) limits compensatory and punitive awards to instances of intentional [retaliation], while § 1981a(b)(1) requires plaintiffs to make an additional "demonstration" of their eligibility for punitive damages. Congress plainly sought to impose two standards of liability ­ one for establishing a right to compensatory damages and another, higher standard that a plaintiff must satisfy to qualify for a punitive award.

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Kolstad v. Am. Dental Assoc., 527 U.S. 526, 534 (1999). Accordingly, "[p]unitive damages are available under Title VII if the plaintiff proves an employer engaged in [(1)] intentional [retaliation] 'with [(2)] malice or with reckless indifference to the federally protected rights of an aggrieved individual.'" Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1097 (10th Cir. 2005) (quoting 42 U.S.C. § 1981a(b)(1)). "Malice" or "recklessness" are established if a plaintiff "proves an employer [retaliated] 'in the face of a perceived risk that its actions [would] violate federal law.'" Id. (quoting Kolstad, 527 U.S. at 536). The terms "malice" and "reckless" "ultimately focus on the actor's state of mind." Kolstad, 527 U.S. at 535. However, the employer need not have the "awareness that it is engaging in [retaliation]," rather the plaintiff must prove that the employer possessed the specific "knowledge that it may be acting in violation of federal law." Id. "Whether sufficient evidence exists to support punitive damages [in a Title VII case] is a question of law . . . ." Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1262 (10th Cir. 1995). In the Tenth Circuit, before imposing punitive damages, courts have required the plaintiff to establish that the defendant acted with "malicious, willful or gross disregard of a plaintiff's rights over and above intentional [retaliation]." The Guides, Ltd. v. Yarmouth Group Prop. Mgt., 295 F.3d 1065, 1077 (10th Cir. 2002). In Yarmouth, the jury found that the defendant, a shopping mall management company, intentionally discriminated against the minority owners of a store named "Africa House" on the basis of race and awarded punitive damages. Id. at 1070. At trial, it was deduced that defendants refused to enter into rental negotiations with the plaintiffs, made misrepresentations to the plaintiffs concerning the leased space; made comments
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that the store did not "mix well" with other tenants, was not glamourous enough, did not fit with the image of the shopping mall, needed to change its name, negatively affected the mall's value, and was unsophisticated. Id. On appeal, the Tenth Circuit upheld the jury's finding of intentional race discrimination, but reversed the district court's allowance of punitive damages. Id. at 1077. Despite the laundry list of facts establishing the intentional misconduct on the part of the defendants, the court found insufficient evidence of "malicious, willful or gross disregard of [the] plaintiff's rights over and above intentional discrimination." Id. Here, even if a jury were to find in plaintiff's favor and that COBE acted intentionally, there is simply no evidence that will be presented at trial establishing that COBE's actions constitute a gross disregard for Plaintiff's rights "over and above intentional" retaliation. Comparing the present case to the extensive list of intentional acts in Yarmouth, a case where the Tenth Circuit found not to qualify for punitive damages, there is insufficient evidence, as a matter of law, for a jury to award punitive damages. Therefore, at the close of Plaintiff's evidence and/or at the jury instruction conference, this Court should find that the jury cannot be permitted to consider an award of punitive damages. CONCLUSION WHEREFORE, for the reasons stated herein, Defendant COBE Cardiovascular, Inc. respectfully requests that this Court consider a directed verdict at the close of Plaintiff's case, directing a verdict in favor of Defendant on all of Plaintiff's case and, at a minimum, order that Plaintiff's claim for punitive damages be dismissed.

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DATED this 8th day of February, 2006. Respectfully submitted,

/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 COBE CARDIOVASCULAR, INC.'S TRIAL BRIEF 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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