Free Motion in Limine - 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-1056-EWN-OES CONNIE J. REYNOLDS, Plaintiff, v. COBE CARDIOVASCULAR, INC., Defendant.

DEFENDANT COBE CARDIOVASCULAR, INC.'S MOTION IN LIMINE AND CERTIFICATE OF COMPLIANCE

Defendant COBE Cardiovascular, Inc. ("COBE"), by its counsel, hereby moves this Court for an Order Prohibiting Plaintiff Connie J. Reynolds ("Plaintiff") from introducing at trial any evidence or testimony concerning: (1) Plaintiff's claim that her reassignment to a new supervisor was retaliatory; (2) Plaintiff's unsuccessful claims for age, sex and disability discrimination and evidence supporting those claims; (3) Plaintiff's claim that she was somehow retaliated against for complaining about alleged OSHA violations; (4) Plaintiff's claim that she was retaliated against for speaking up on behalf of an employee she believed was being terminated for filing a worker's compensation claim; (5) Plaintiff's claim that she was retaliated against in violation of Title VII for reasons other than Plaintiff's complaint to Sharon Oliver ("Oliver") concerning sexual discrimination at COBE made one month before Plaintiff's termination on September 9,

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2003; (6) Plaintiff's claim that she was retaliated against in violation of the ADEA for reasons other than Plaintiff's complaint to Oliver concerning age discrimination at COBE made one month before Plaintiff's termination on September 9, 2003, and Plaintiff's letter to Oliver and Carolyn Byram ("Byram"), dated September 8, 2003; (7) those portions of Plaintiff's September 8, 2003, letter and Oliver's response, dated September 12, 2003, that address alleged retaliation for reasons other than age discrimination; and (8) alleged discrimination directed at other COBE employees. As grounds for this Motion, COBE states as follows: INTRODUCTION On May 24, 2004, Plaintiff filed a complaint against COBE alleging claims for: (1) disability, sex, and age discrimination in violation of the Americans with Disability Act ("ADA"), 42 U.S.C. §§ 12101-12213 (2005), Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (2005), and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (2005); (2) retaliation in violation of Title VII and ADEA; and (3) breach of contract/promissory estoppel. On January 24, 2005, COBE moved for summary judgment on all claims. This Court, in an Order and Memorandum dated December 16, 2005 ("Order"), granted COBE's Motion as to all claims except Plaintiff's claims for retaliation under Title VII and ADEA. As a result of this Court's Order, all that remains to be litigated is whether COBE retaliated against Plaintiff in violation of Title VII or the ADEA by issuing a final written warning and subsequently terminating her employment. The Order further limited the evidence upon which Plaintiff could base her retaliation claims. Specifically, Plaintiff's Title VII
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retaliation claim was limited to whether she was retaliated against in response to a complaint to Oliver about sexual discrimination at COBE that Plaintiff claims to have made one month before her termination. Dkt. No. 36, pp.l26-8. Plaintiff's ADEA retaliation claim was limited to whether she was retaliated against for complaining to Oliver of age discrimination approximately one month before Plaintiff's termination on September 9, 2003, or because she complained of age discrimination in a letter to Oliver and Byram, dated September 8, 2003. Id. at 35-7. Notwithstanding the limited issues that remain for trial and as evidenced in the Final Pretrial Order, COBE expects Plaintiff to offer evidence and testimony that her reassignment to a new supervisor was retaliatory, evidence as to her dismissed causes of action, evidence of noncontemporaneous incidents regarding the remaining retaliation claims, a non-redacted form of Plaintiff's letter to Oliver and Byram, dated September 8, 2003, a non-redacted form of Oliver's letter to Plaintiff, dated September 12, 2003, evidence of alleged discrimination directed at other COBE employees, evidence that she was retaliated against for complaining about an employee who was terminated while on worker's compensation, and evidence that Plaintiff was retaliated against for reporting alleged OSHA violations. For the following reasons, all of this evidence is irrelevant or objectionable pursuant to the Federal Rules of Evidence and should be excluded. ARGUMENT Only relevant evidence is admissible. Fed. R. Evid. 402. "Relevant evidence" is defined as "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Although admissible, relevant evidence "may be excluded if its
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probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. A primary purpose of Rule 403 is to eliminate evidence that might trigger a verdict based upon "illegitimate emotional appeal." 22 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE AND PROCEDURE § 5215, at p.275 (West 1978); see also Lanni v. New Jersey, 177 F.R.D. 295, 302 (D.N.J. 1998) ("Evidence is . . . considered 'unfairly prejudicial' if it appeals to the jury's sympathies, . . . or otherwise may cause a jury to base its decision on something other than the established proposition in the case"(internal quotations omitted)); Glover v. Oppleman, 178 F. Supp. 2d 622, 632 (W.D.Va. 2001) ("Prejudice is 'unfair' when it will excite a jury to make a decision on the basis of a factor unrelated to the issues properly before it."). In determining whether evidence should be excluded under Rule 403, the district court has broad discretion that will not be disturbed on appeal absent an abuse of that discretion. O'Banion v. Owens-Corning Fiberglass Corp., 968 F.2d 1011, 1013 (10th Cir. 1992). 1. Evidence Concerning Plaintiff's Reassignment to a New Supervisor

Plaintiff may attempt to offer evidence or testimony that her change in reporting structure in April of 2003 was somehow discriminatory or retaliatory. In its Order, the Court found, as a matter of law, that Plaintiff's reassignment was not an adverse employment action, and thus declined to address Plaintiff's claims concerning her reassignment. Dkt. No. 36, p.14. Issues upon which summary judgment were granted should not be allowed before the jury. Clipco, Ltd. v. Ignite Design, LLC, 2005 WL 2861032, at *2 (N.D.Ill. Oct. 28, 2005); Sunstar, Inc. v.
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Alberto-Culver Co., Inc., 2004 WL 1899927, at *2-3 (N.D.Ill. Aug. 23, 2004). Because the Court found the evidence about the reassignment immaterial to Plaintiff's claims, Plaintiff should be precluded from arguing or offering evidence that the reassignment was improperly motivated. 2. Evidence Supporting Plaintiff's Dismissed Causes of Action

As set forth above, Plaintiff's claims for discrimination under ADA, Title VII, ADEA, and breach of implied contract were dismissed with prejudice by this Court. Nevertheless, COBE anticipates that Plaintiff may still attempt to submit evidence or testimony concerning these claims. For the following reasons, such evidence should be excluded. The Order held that Plaintiff's ADA, Title VII, ADEA, and breach of implied contract claims failed as a matter of law. Dkt. No. 36, pp.21-2, 24-5, 33-4, 39-42. Thus, substantively, these claims will not be submitted to the jury. Clipco, Ltd., 2005 WL 2861032, at *2; Sunstar, Inc., 2004 WL 0899927, at *2-3. Further, courts have held that evidence supporting a dismissed discrimination claim is irrelevant to a corresponding retaliation claim. Coles v. Perry, 217 F.R.D. 1, 10 (D.D.C. 2003) (finding racial discrimination testimony irrelevant where Title VII discrimination claim was dismissed on summary judgment, 271 F. Supp. 2d 157, 164 (D.D.C. 2003), and only Title VII retaliation claim remained); see also Heno v. Sprint/United Mgt. Co., 208 F.3d 847, 856 (10th Cir. 2000) (distinguishing relevance of evidence concerning Title VII discrimination claim and retaliatory hostile environment or constructive discharge claim). As such, Plaintiff should not be permitted to offer evidence that she believed she was being discriminated against by COBE on the basis of her age, sex or disability, nor should she be permitted to offer evidence or argument
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that COBE breached some sort of implied contract with her as a means of supporting her retaliation claims, since these claims have already been dismissed by this Court, with prejudice. Even if the Court concludes that evidence of other acts of discrimination or the breach of contract claim could be relevant to the remaining retaliation claims, such evidence cannot be admitted unless it is "logically or reasonably tied to the decision to terminate [the plaintiff]." Curtis v. Oklahoma City Pub. Schls. Bd. of Educ., 147 F.3d 1200, 1217 (10th Cir. 1998) (alteration in original and internal quotations omitted); Schneider v. City and County of Denver, 47 Fed. Appx. 517, 2002 WL 1938583, at *2 (10th Cir. Aug. 22, 2002) (applying the Curtis test in Fed. R. Evid. 404(b) "other acts" analysis); Pleasants v. Allbaugh, 285 F. Supp. 2d 53, 56 (D.D.C. 2003) (stating that similar acts of discrimination or retaliation are admissible to show discriminatory motive and intent "if it is of the same character and type of discrimination"); Bell v. Gonzales, 2005 WL 3555490, at *2 (D.D.C. Dec. 23, 2005). Here, Plaintiff's failed claims are wholly separate and insular issues from those that remain, i.e., whether COBE retaliated against Plaintiff in violation of Title VII or ADEA. In other words, the decision to retaliate against an employee is not related to the decision to discriminate against an employee on the basis of disability, sex, or age,1 or to breach a contract with that employee.

Plaintiff testified to a number of incidents regarding alleged ageist comments to bolster her ADEA age discrimination claim. As noted in the Order and Memorandum, the occasions Plaintiff describes are either too remote in time to support a finding of causation or wholly lack support in the way of "dates or specifications." Dkt. No. 36, p.33. Evidence of prior acts that are insufficiently contemporaneous should not be admitted. Hurley v. Atlantic City Police Dep't., 174 F.3d 94, 112 (3d Cir. 1999) (holding admission of evidence relating to insufficiently contemporaneous incidents an abuse of discretion); see also Heno, 208 F.3d at 856 (finding that evidence of prior discrimination that occurred non-contemporaneously should not be admitted).
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Finally, even if logically or reasonably related, the evidence supporting Plaintiff's failed claims is still subject to Rule 403 and can be admitted only if the probative value of the evidence substantially outweighs the danger of unfair prejudice. Pleasants, 285 F. Supp. 2d at 56. The probative value of Plaintiff's evidence supporting her failed claims is minuscule, at best, since this Court has already concluded these claims to be unfounded. Dkt. No. 36, pp.21-2, 24-5, 33-4, 39-42; Pleasants, 285 F. Supp. 2d at 56-7 (holding that because "independent judicial officer" had already determined certain claims for racial discrimination were unfounded, that their tendency to show defendant's motive or intent were "ambiguous, at best"). In addition, if such evidence were allowed, COBE would be required to submit evidence in its defense. The need to re-litigate issues already resolved by this Court would unfairly prejudice COBE since it previously prevailed, as a matter of law, upon these claims. Pleasants, 285 F. Supp. 2d at 57; see also Fed. R. Evid. 403 (stating that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of . . . misleading the jury, or by considerations of undue delay, [and] waste of time"). For all these reasons, evidence that supported Plaintiff's failed claims for relief in this case is not relevant to the remaining causes of action for trial, and should be precluded from admission at trial 3. Evidence Supporting Plaintiff's Remaining Causes of Action

As noted above, the only remaining claims to be decided by a jury concern Plaintiff's retaliation claims under Title VII and ADEA. With respect to these claims, the Court found only certain complaints of discrimination were sufficiently timely to support her retaliation claims.
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Specifically, the Court found that only Plaintiff's complaints to Oliver, made in August 2003, describing her belief that COBE sexually discriminated against its employees, supported her Title VII claim. Dkt. No. 36, p.28. Furthermore, the Court found that only Plaintiff's complaints to Oliver, made in August 2003, describing her belief that COBE discriminated against its employees because of their age, and Plaintiff's September 8, 2003, letter, stating that she was the subject of age discrimination, could form the basis for Plaintiff's ADEA retaliation claim. Id. at 36. Nonetheless, COBE anticipates that Plaintiff will attempt to submit evidence of additional

complaints that she made which are simply not relevant. To support her Title VII retaliation claim, Plaintiff may try to submit evidence that in the Spring of 2002, she expressed concern that employee Elizabeth McCarthy's ("McCarthy") termination was based upon her pregnancy. However, this Court has already held that Plaintiff's 2002 comments about McCarthy could not form the basis for a retaliation claim, since they were insufficiently contemporaneous with Plaintiff's termination. Id. at 27. Because this evidence is too remote from Plaintiff's termination, it is irrelevant and should be excluded. Fed. R. Evid. 402; Heno, 208 F.3d at 856; Hurley, 174 F.3d at 112. Additionally, any probative value of McCarthy's termination is minuscule at best since this Court dismissed all of McCarthy's claims against COBE on August 30, 2004. McCarthy v. COBE Cardiovascular, Inc., Case No. 03-CV00366-EWN-MJW (D.Colo. Aug. 30, 2004) (Nottingham, J.); Pleasants, 285 F. Supp. 2d at 56-7. In further support of her Title VII claim, Plaintiff may offer her letter, dated September 8, 2003, to Oliver and Byram, that outlined certain incidents and alleged discrimination. The Court's Order and Memorandum held that because the September 9, 2003, letter failed to mention
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sexual discrimination, that it too was irrelevant to Plaintiff's Title VII retaliation claim. Dkt. No. 36, p.27. Because the entire letter is irrelevant to the Title VII claim, it should be excluded for the purposes of supporting Plaintiff's Title VII retaliation claim.2 With respect to the ADEA retaliation claim, Plaintiff may attempt to submit evidence regarding her alleged complaints, made in February of 2003, about COBE's termination of Rose Pass ("Pass") as being discriminatory. The Court held, however, that Plaintiff's comments concerning Pass's termination were also too remote. Id. at 36. Because the evidence is noncontemporaneous, it is irrelevant and should be excluded. Fed. R. Evid. 402; Heno, 208 F.3d at 856; Hurley, 174 F.3d at 112. Moreover, any probative value of Pass's termination is minuscule at best since this Court dismissed all of Pass's claims against COBE in summary judgment on October 20, 2004. Rose v. COBE Cardiovascular, Inc., Case No. 03-CV-01453-BNB (D.Colo. Oct. 20, 2004) (Babcock, C.J.); Pleasants, 285 F. Supp. 2d at 56-7. Finally, the Court found Plaintiff's September 8, 2003, letter, stating that she was the subject of age discrimination, was proper evidence concerning her ADEA retaliation claim. Accordingly, COBE respectfully requests that only those portions of the September 8, 2003, letter referring to age discrimination against the Plaintiff be admitted to the jury. Thomas v. Ragland, 324 F. Supp. 2d 950, 977 (E.D.Wis. 2004) (finding comments not protected by Title VII irrelevant to Title VII retaliation claim); see also Pleasants, 285 F. Supp. 2d at 56 (stating that similar acts of discrimination or retaliation are admissible to show discriminatory motive and

If the letter is admitted for another purpose (i.e., to support Plaintiff's ADEA retaliation claim), COBE respectfully requests a limiting instruction pursuant to Fed. R. Evid. 105.
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intent "if it is of the same character and type of discrimination"). For the same reasons, COBE also requests that if Plaintiff submits Oliver's response (dated September 12, 2003) to Plaintiff's September 8, 2003, letter, that paragraph three, which contains rejections of Plaintiff's irrelevant assertions, be redacted and precluded from discussion. 4. Evidence or Testimony Concerning Alleged Discrimination and Retaliation Directed at Other COBE Employees.

In the Final Pretrial Order, Plaintiff lists Rose Pass, Patricia Bardo-Hankie, Jim Russell, Claudia Croy, and Elizabeth McCarthy as potential witnesses who may testify to alleged discrimination and/or retaliation directed at them by COBE. COBE objects to the relevancy of their testimony. As noted above, other acts of discrimination or retaliation may be admitted to show motive or intent if the plaintiff can establish that the other incidents are "logically or reasonably tied to the decision to terminate [the plaintiff]." Curtis, 147 F.3d at 1217. However, "anecdotal evidence of discrimination should only be admitted if 'the prior incidences of alleged discrimination can somehow be tied to the employment actions disputed in the case at hand.'" Heno, 208 F.3d at 856 (quoting Simms v. State of Oklahoma, 165 F.3d 1321, 1330 (10th Cir. 1999)). Importantly, incidents involving different supervisors are irrelevant. Id. For example, in Curtis, the Tenth Circuit found proper this district court's decision to exclude testimony from another employee regarding discrimination when that employee was not in the same department and did not have the same supervisor. 147 F.3d at 1217-18. Furthermore, to be admissible, the similar acts of discrimination or retaliation must be contemporaneous, Heno, 208 F.3d at 856, and of "the same character and type" as the action the Plaintiff's complains of, Pleasants, 285 F.

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Supp. 2d at 56. Lastly, any such evidence is still subject to the strictures of Rule 403. Schneider, 2002 WL 1938583, at *7. Plaintiff was employed in COBE's Human Resources department as a disability case manager and nurse until her termination on September 9, 2003. Byram and Oliver were Plaintiff's supervisors. Furthermore, as noted above, Plaintiff's remaining claims consist only of retaliation claims under Title VII and ADEA. By contrast, Pass was employed by COBE as a senior/buyer planner until her resignation on May 2, 2002. Pass reported to Susie Chase and Jeff Whitner. Eventually, Pass sued COBE in this district court for breach of contract, promissory estoppel, and discrimination in violation of the ADA, ADEA, and Title VII. On October 20, 2004, Chief Judge Babcock granted COBE's motion for summary judgment on all claims. Pass v. COBE, Case No. 03cv01453 (BNB). Russell was employed by COBE in its safety division and terminated sometime after Plaintiff's discharge. Russell's supervisor was Roger Stewart. Plaintiff's deposition testimony indicates that Russell may have believed that at some point prior Plaintiff's termination, he was demoted because of his age. Bardo-Hankie was employed with COBE's material handler product support staff until terminated for performance issues on August 4, 2003. Plaintiff believes Bardo-Hankie was terminated for filing a worker's compensation claim. Bardo-Hankie was supervised by Byron Mitzan and Rich Halverson. No claim was filed by Bardo-Hankie protesting her termination. McCarthy was employed by COBE until July 1, 2002, when she was separated upon her failure to return to work following the expiration of her FMLA leave for the birth of a child.
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McCarthy was an International Marketing representative who reported to Kelli Richers. After her termination, McCarthy filed a lawsuit, claiming that she was discriminated against on the basis of her pregnancy and retaliated against for complaining of discrimination. On August 30, this district court in McCarthy v. COBE, Case No. 03-N-0366 (MJW), entered summary judgment in McCarthy's case, finding that she had failed to establish a prima facie claim of discrimination or retaliation.3 Croy has been employed by COBE as a quality technician. Her supervisors were Lance Schall, Jim Hill, Kris Schmidt, and Dennis Bruner. After claiming she did not receive a promotion she believes was due in 1998, Croy filed a complaint alleging sex and disability discrimination and retaliation under Title VII on October 4, 2000. On May 3, 2002, this Court dismissed all of Croy's federal discrimination and retaliation claims, with prejudice, permitting only a breach of express contract claim to go to trial in 2004.

3

In her Statement of Claims in the Final Pretrial Order, Plaintiff states the following:

Over prior months, plaintiff named names of employees being discriminated against, and one of them was Elizabeth McCarthy (discrimination because of McCarthy's pregnancy). Plaintiff testified at deposition in support of Elizabeth McCarthy's federal discrimination lawsuit. Plaintiff also provided an affidavit in support of McCarthy's claims of pregnancy discrimination. Final Pretrial Order, p.7. As written, one might assume that Plaintiff's deposition and affidavit in the McCarthy case occurred while Plaintiff was still employed by COBE. This construction could lead one to the conclusion that Plaintiff was terminated in retaliation for her McCarthy deposition and affidavit. In fact, Plaintiff was deposed in McCarthy's litigation on January 5 and February 2, 2004. Plaintiff's affidavit concerning McCarthy's pregnancy discrimination claim was signed on December 21, 2003. Plaintiff was terminated by COBE on September 9, 2003, well before either the deposition occurred or the affidavit was signed.
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As the preceding demonstrates, none of these witnesses reported to the same supervisors or were employed in the same department as the Plaintiff. On this basis alone, all of these individuals should be precluded from testifying. Heno, 208 F.3d at 856; Curtis, 147 F.3d at 1217-18. Testimony by or concerning Bardo-Hankie should further be excluded as irrelevant since it involves alleged retaliation for filing a worker's compensation case ­ an action not protected under Plaintiff's remaining Title VII and ADEA retaliation claims. Thomas, 324 F. Supp. 2d at 977; see also Pleasants, 285 F. Supp. 2d at 56. The Pass action did not include a claim for retaliation and is thus irrelevant. Coles, 217 F.R.D. at 10; see also Heno, 208 F.3d at 856. Croy's testimony would concern alleged acts of discrimination and retaliation that occurred, at the earliest, over three years before Plaintiff was terminated. Because non-contemporaneous discriminatory acts should not be admitted into evidence, Croy's testimony should be excluded. Heno, 208 F.3d at 856; Simms, 165 F.3d at 1331 (holding that allegedly discriminatory event that took place three years before was too remote). Finally, even if somehow relevant, the admission of Pass's, Croy's, and McCarthy's testimony would unfairly prejudice COBE, particularly since these individuals' claims have already been litigated and an independent judicial officer has determined that the allegations lack merit. Pleasants, 285 F. Supp. 2d at 56-7.

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Lastly, the testimony of Russell4 and Croy should be excluded since Plaintiff failed to identify these two individuals under Rule 26. Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure requires a party to disclose the "name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims . . . identifying the subjects of the information . . . ." A party must supplement or amend these disclosures if it learns that the information previously disclosed or the response is "incomplete or incorrect and if the additional corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. Pro. Rule 26(e)(1). Rule 37(c)(1) provides that when a party "without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) . . . is not, unless such failure is harmless, permitted to use as evidence at a trial . . . any witness or information not so disclosed." Courts have found "[t]he sanction of exclusion . . . automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless." Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir.1998). Although discovery in this case closed well over a year ago on December 17, 2004, the Plaintiff failed to identify Russell and Croy as potential witnesses until the eve of trial. There

As noted in Plaintiff's deposition, Russell was terminated at some point after Plaintiff's discharge. If Russell is permitted to testify, COBE respectfully requests that his testimony be limited to questions concerning his demotion and that he not be permitted to discuss his termination, which occurred subsequent to Plaintiff's alleged adverse employment decisions. See Heno, 208 F.3d at 856 (finding that "[d]iscriminatory incidents which occurred anytime after [the contested action] are not sufficiently connected to the employment action in question to demonstrate pretext" (emphasis added and internal quotations omitted)).
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can be no "substantial justification" for such a delay. Furthermore, allowing the testimony of these former COBE employees would harm COBE since it now lacks the time to properly depose and further investigate the discriminatory actions each alleges to have experienced. As such, this testimony should be excluded. 5. Evidence Supporting Non-Title VII or ADEA Retaliation Claims

Plaintiff may attempt to submit evidence in support of her claim that she was retaliated against by COBE for complaining to Oliver that Bardo-Hankie was terminated for filing a worker's compensation claim and that COBE was in violation of OSHA. Because neither comment is protected under either Title VII or ADEA, the evidence is irrelevant and should be excluded. Thomas v. Ragland, 324 F. Supp. 2d at 977 (finding comments not protected by Title

VII irrelevant to Title VII retaliation claim). CERTIFICATE OF COMPLIANCE Pursuant to D.C.COLO.LCivR 7.1A, undersigned counsel certifies that the parties have conferred concerning the relief requested herein, and that Plaintiff opposes this motion and objects to the requested relief. CONCLUSION WHEREFORE, Defendant COBE Cardiovascular, Inc. respectfully moves this Court for an Order Prohibiting Plaintiff Connie J. Reynolds from introducing at trial any evidence or testimony concerning: (1) Plaintiff's claim that her reassignment to a new supervisor was retaliatory;

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(2)

Plaintiff's unsuccessful ADA claim for disability discrimination and evidence in support of this claim;

(3)

Plaintiff's unsuccessful Title VII claim for sexual discrimination and evidence in support of this claim;

(4)

Plaintiff's unsuccessful ADEA claim for age discrimination and evidence in support of this claim;

(5)

Plaintiff's unsuccessful claims for breach of contract and promissory estoppel and evidence supporting these claims;

(6)

Plaintiff's claim that she was somehow retaliated against for complaining about alleged OSHA violations;

(7)

Plaintiff's claim that she was retaliated against for speaking up on behalf of an employee she believed was being terminated for filing a worker's compensation claim;

(8)

Plaintiff's claim that she was retaliated against in violation of Title VII for reasons other than Plaintiff's complaint to Sharon Oliver concerning sexual discrimination at COBE made one month before Plaintiff's termination on September 9, 2003;

(9)

Plaintiff's claim that she was retaliated against in violation of ADEA for reasons other than Plaintiff's complaint to Oliver concerning age discrimination at COBE made one month before Plaintiff's termination on September 9, 2003, and in Plaintiff's letter to Oliver and Carolyn Byram, dated September 8, 2003;

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(10)

Portions of Plaintiff's September 8, 2003, letter and Oliver's response, dated September 12, 2003, that allege retaliation for reasons other than age discrimination; and

(11)

Alleged discrimination directed at other COBE employees.

Dated this 31st day of January, 2006. Respectfully submitted,

/s Susan S. Sperber Susan S. Sperber 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.

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CERTIFICATE OF SERVICE I hereby certify that on the 31st day of January, 2006, I electronically filed the foregoing DEFENDANT COBE CARDIOVASCULAR, INC.'S MOTION IN LIMINE AND CERTIFICATE OF COMPLIANCE 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/ Susan S. Sperber Susan S. Sperber 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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