Free Pretrial Order - District Court of Colorado - Colorado

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

Document 50

Filed 01/27/2006

Page 1 of 19

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. FINAL PRETRIAL ORDER 1. DATE OF CONFERENCE The Final Pretrial Conference is scheduled for January 27, 2006 at 8:30 a.m. 2. JURISDICTION The United States District Court for the District of Colorado has jurisdiction over the claims asserted under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. 3. CLAIMS AND DEFENSES a. Plaintiff' Statement of Claims: s

Plaintiff' claims of retaliation in violation of the ADEA and Title VII survived summary s judgment. The following evidence is relevant to those claims (and plaintiff respectfully disagrees with the defendant's contention that the court has already declared certain evidence to be irrelevant): Plaintiff was terminated after seven years of what the company called " dedicated service." At the time of her firing, she was described by the very people who fired her as a " great"nurse. Plaintiff' supervisor (the one who fired her a few months later) endorsed a selfs performance evaluation in April 2003 reporting that plaintiff " Exceeds Expectations." Her supervisor noted just a few months before plaintiff was fired that, " You [plaintiff] have established good relationships and instilled trust with many of COBE' employees. Your on-site s support helps to minimize an employee' time again from work. . . ." Her supervisor wrote, s

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

Document 50

Filed 01/27/2006

Page 2 of 19

again just a few months before plaintiff was fired, " You are a dedicated professional and have a true commitment to COBE and its employees." However, the supervisor, Carolyn Byram, also chided plaintiff in the same performance review that, " Your primary responsibility, however, is your role as an Integrated Disability Case Manager. I would like to see you take more of a lead in this area, establishing a vision and providing innovative approaches to managing our worker' compensation costs." This was s another way to say that " job was to cut workers compensation costs,"plaintiff noted. As my soon as Carolyn Byram came in, she enforced a change in plaintiff' approach to employees, s away from attention to their needs and toward containing costs associated with their health and workers compensation claims. Plaintiff stated: " entire focus changed to simply saving The dollars no matter what it did to our attention to the needs of the employees." Plaintiff' prior performance evaluations had been excellent for years. She had recently s been lauded for her " outstanding clinical work supporting our people' health needs . . . ." s Plaintiff was previously lauded for handling her duties " a way that serves both employee and in COBE. Thank you for your wonderful contributions in this area." Plaintiff was lauded again and again by her prior supervisor: " Thanks for being there so well for people!" " am thrilled to I have you as a member of our team. You are an excellent clinician and worker' comp manager s as evidenced by your results over the past several years in this area. Keep it up! . . . I really value you and your work." Plaintiff' performance ratings were generally " s outstanding"or " exceeds expectations"year after year. Plaintiff worked in a small department, with only seven permanent employees and one " temp." Employed as a manager in the same small department at the same time was Jerri Paulison. Paulison had been employed a total of 24 years with the company and its predecessor. She was familiar with the policies and procedures of the company and in the department, including at the time that plaintiff was working there and then was terminated. She was also familiar with plaintiff' job performance and management' treatment of her. This was from s s Paulison' direct observation and discussions over two and one-half years. She attended staff s meetings and also meetings and discussions where the topics referred to in these paragraphs came up either directly or were touched upon. Paulison observed that the company applied pressure to everyone, and especially to Ms. Reynolds, to reduce expenses in the areas of employee health and workers compensation claims and to reduce litigation costs. She observed that plaintiff was particularly compassionate toward the needs of the employees. Plaintiff' s relationship with the production employees was particularly good, according to Paulison from her direct observation. She observed that the production employees looked upon plaintiff as an advocate for them or someone there to help them, and they would come to her nearly all day long everyday with work issues, questions, emergency situations. According to Paulison and from her direct observation, plaintiff was looked at as kind of a friend to the employees, to whom they could bring all manner of problems. The above observations of plaintiff by Paulison were over a span of two and one-half years. Paulison stated: " Ms. Reynolds was criticized for If being insensitive to employees, I would have to say the exact opposite." She observed that plaintiff was very responsive to employee' needs. She stated, " observed [plaintiff] to be very s I

04-cv-01056 FPTO.DOC

-2-

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

Document 50

Filed 01/27/2006

Page 3 of 19

sensitive to employees on a day-to-day basis. " Paulison observed that management was looking for an excuse to get rid of plaintiff " well before it happened." She stated from her own observation: " know that they didn' like her frankness and her straightforward way of telling I t management what she thought about specific situations, specific employee' situations." After s Ms. Reynolds was terminated, the employees let it be known that they missed her very much, according to Paulison. Plaintiff recognized that certain managers were trying to create a colorable reason to fire her. The motivation for getting rid of plaintiff was that she had complained regarding discrimination against certain employees by name and she had complained repeatedly that there was a pattern of discrimination at the company against employees over 40 with health problems, particularly females. Her most recent complaint regarding the pattern of discrimination was about one month before she was fired. She was in Sharon Oliver' office, and Oliver was her s supervisor who, along with one other person would make the decision to fire her barely one month later. Plaintiff informed Oliver that the pattern of discrimination was still going on. It was impacting primarily employees over 40 years old who had health problems, and she wanted to remind Oliver of this concern, " because it was HR' job to investigate it and do something s about it. I felt I was obligated to report it." Oliver' reaction was to say nothing. Reynolds s noted, " was shocked. She didn' say a word. She did not acknowledge what I had just said." I t It was part of Oliver' responsibility to investigate such claims of discrimination. It was s company policy to investigate such claims. There was never any such investigation by Oliver or anyone else. Part of plaintiff' job was to know the law regarding discrimination and to report it if she s saw it. In fact, that was the responsibility of everyone at the company, and the employees were told to report such information to the Human Resources Department without fear of retaliation. Plaintiff recounted under oath that she had specifically complained to Oliver about a pattern of discrimination because of multiple factors, age being one of them. Plaintiff recounted under oath that she discussed with Oliver that, " of these people that they certainly were over all 40 years old, all of these people, and they all had medical problems. . . . Oliver simply did not respond. Plaintiff recounted her detailed complaint to Oliver regarding the pattern of discrimination that she perceived: " was a pattern. It truly was a pattern." " told her, I said, It I you know, you are looking at people that are over 40, and that these people have medical problems. . . . They were usually always females. I felt like they were definitely discriminating against that type of employee." Oliver did not respond. Oliver and Axelrod told plaintiff, " This is not your concern. You are not in employee relations. We are the ones that make the decisions. That is the way it is." Plaintiff also spoke with Byram on the same topic. Plaintiff complained to Byram shortly before Byram forced plaintiff to report to Oliver. Indeed, plaintiff recognized an increasing unhappiness from Oliver and Byram because she voiced her position that discrimination was occurring. " [Oliver] basically told me that it She

04-cv-01056 FPTO.DOC

-3-

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

Document 50

Filed 01/27/2006

Page 4 of 19

was none of my business." After plaintiff complained, Oliver treated her differently -- " less closed mouthed"[sic]. " Yes, it was kind of an avoidance." Plaintiff was fired in part because her supervisors " not want me to say anything. They did not want to hear it." Plaintiff had did previously been ordered by Byram not to communicate with upper management regarding her safety concerns and OSHA. Over prior months, plaintiff named names of employees being discriminated against, and one of them was Elizabeth McCarthy (discrimination because of McCarthy' pregnancy). s Plaintiff testified at deposition in support of Elizabeth McCarthy' federal discrimination s lawsuit. Plaintiff also provided an affidavit in support of McCarthy' claims of pregnancy s discrimination. McCarthy' case was before this Court [Case No. 03 N 0366 (MJW)], and this s Court dismissed McCarthy' claims upon a motion for summary judgment. Plaintiff also s complained that Rose Pass and Jim Russell were being subjected to age discrimination. Plaintiff' complaint regarding Pass was in February 2003. Recall that it was soon after, on s April 29, 2003, that Byram began her attack on plaintiff with a false and misleading performance evaluation. Plaintiff complained regarding discrimination against " many"other employees, not just the ones she named in her deposition. " go back and recollect, I almost would have to see a To list of employees." She detailed multiple other employees whose names she could not recall who were discriminated or retaliated against. Plaintiff made clear that her complaints about discrimination were with regard to many employees whose names she could not recall. Thus, complaints regarding discrimination against McCarthy, Russell, Croy, Pass and Bardo-Hankie should not be well-taken were not the only ones. " There was more. I would have to see a list of employees." Plaintiff' experience was that to claim discrimination or oppose it inside the company s was " kiss of death." Sooner or later, every employee who did so was forced out or simply the fired for a trumped up reason. Paulison, another manager in Human Resources, verified that management was looking for a colorable excuse to fire plaintiff long before she was fired (" a way to make it look legal" Plaintiff verified that management did not like plaintiff' frankness ). s in telling management about specific employee' situations. The company did not like the fact s that plaintiff would advocate for employees. Among the employees that plaintiff complained were being discriminated against were Claudia Croix [Croy], Rose Pass and Patricia BardoHankie. But there were others, including certain people " in purchasing." up The company tried to reduce employee awareness of their own rights that could lead to claims against or costs to the company. For example, plaintiff advocated training employees as to their rights under the Family Medical Leave Act, but Byram told her to stop it. The company (Byram and Oliver) wanted to, and did, limit employee education in the handling of blood products, which plaintiff believed was required by OSHA (annual training). When plaintiff expressed her view regarding the need for blood-handling training, Byram instructed plaintiff never to send any e-mails again to upper management " anything that pertained to OSHA." on Plaintiff had been teaching employees their FMLA rights for longer than a year. Employees

04-cv-01056 FPTO.DOC

-4-

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

Document 50

Filed 01/27/2006

Page 5 of 19

were taught what made them eligible and what would not. Byram had worked with the Texas plant, where the employees were not advised of their FMLA rights. As a result there was a huge difference in the number of FMLA leaves between the Texas plant and the plant where plaintiff worked. As a result, plaintiff said Byram felt that, " did not need to do any more training, we period." Plaintiff was then assigned to report to Sharon Oliver in part in retaliation for advocating the training of employees as to their rights under FMLA.. This reassignment to a new supervisor, Oliver, occurred on May 5, 2003. Plaintiff was told by Oliver that she was being too sensitive to employee' problems, including health problems, and she had to discourage such claims. Byram s told plaintiff that there were too many people on FMLA leaves. Byram did not treat the employees with respect and did not care about safety concerns. Plaintiff put this into an evaluation of Byram that was supposed to be confidential. Plaintiff' s goal was " protect the employees, and she [Byram] certainly did not have that goal in mind." to Plaintiff had no responsibility for hiring employees, terminating employees, or for their performance reviews. She had no input into performance evaluations. Plaintiff never participated in any decision to terminate an employee nor did she ever make a recommendation to terminate an employee. Indeed, it was not even plaintiff' role to determine if the company s could accommodate an employee' disability. s This demonstrates that the reason selected for plaintiff' firing (that employees were s afraid to see plaintiff because they feared she would get them fired) were false. Plaintiff had no such authority and never even participated in such decisions. Indeed, Oliver placed this false reason into the Final Written Warning the day before plaintiff was fired. It was also cited as a reason (though false) in a performance review on April 29, 2003: " Recently, as you know, it has been pointed out that employees are concerned about reporting injuries for fear they will lose their jobs. . . ." Sharon Oliver and Carolyn Byram were well aware that plaintiff played no role in termination decisions -- rather it was they who made those firing determinations. Plaintiff had nothing to do with it, and Oliver and Byram knew it. Indeed, plaintiff was never even privy to the decision-making after she reported an employee' allegations. But she was well aware that s employees were afraid to report their allegations to HR. " this point there were numerous At people that I worked with on a daily basis that were scared to death of HR and morale was low. I mean, they did not want to see HR. You have to practically beg them to go to HR." Plaintiff realized that this was a " up." Oliver and Byram were beginning to fabricate set a reason to fire plaintiff, and they were basing it on firing employees for reporting health concerns -- which is actually what Oliver and Byram themselves (and another HR employee named Keith Axelrod) had been doing. Plaintiff had no responsibility for such terminations, nor did she even provide input therefor. Whenever plaintiff discussed an employee with Axelrod, he would respond, " [W]e will just fire their ass." Plaintiff informed Oliver that Axelrod' s comments were inappropriate. Indeed, at one point, Axelrod greeted word that a certain employee had filed a workers compensation claim with the comment that it gave the company " opportunity to terminate her." Axelrod also told plaintiff " keep my nose out of it." the to

04-cv-01056 FPTO.DOC

-5-

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

Document 50

Filed 01/27/2006

Page 6 of 19

Plaintiff went in to speak with Oliver about Axelrod' comment, as she believed it was illegal to s terminate someone for filing a workers compensation claim. Oliver' response was to say s nothing. Plaintiff was stunned by such silence. With regard to such complaints, plaintiff was told to " mind my own business." The same thing happened with the firing of Patricia Bardo-Hankie. Plaintiff believed it was discriminatory, and when she brought up the subject she was told " stay out of it." Thus, to for Oliver and Byram to fire plaintiff upon the claim that the employees were afraid plaintiff would get them terminated was patently a pretextual reason selected by Oliver and Byram, who were the ones who actually fired employees with health problems. Indeed, when plaintiff realized that a " up"was in the works, she specifically set countered that she should provide a presentation to the employees of the company. " told her I [Carolyn] what I thought was necessary was to actually do a little presentation on the different roles that I had, what the expectations were, those kinds of things." But Byram forbade her to make the presentation. The reason that Byram forbade plaintiff to speak with the employees on the subject was that, " Carolyn knew that I would make very clear that all of these decisions to fire employees with health problems had not come from me, but had come from Carolyn and Sharon and others. She did not want me to let the employees know where the decisions had really been made and that I had had nothing to do with them." Plaintiff had fought long and hard against the firing of such employees. She would call specific instances to the attention of Axelrod, another human resources employee. His response was to comment that the best way to deal with it was to get rid of the employee. Plaintiff' supervisor, Carolyn Byram, had a bias toward younger people [" seemed to s She get along with younger people." Byram made ageist comments about plaintiff, and noted at a ]. department meeting that plaintiff was the oldest person there. The ageist comment by Byram at the department meeting was not funny, and plaintiff said so. Plaintiff was also subjected to other ageist comments and innuendoes. Oliver would repeatedly inquire as to how old plaintiff was when plaintiff discussed her medical issues. Axelrod would make comments like " know who we the oldest person is in this department." Recall that other than plaintiff, there were only six permanent employees in the department. Thus, plaintiff was subjected to ageist comments from half of her fellow employees, including derisively by some. This was obviously unusual for a human resources staff. Plaintiff stated, " [W]hen you develop medical problems"that the company would begin to write you off. Plaintiff observed at COBE a trend of firing older females with health problems. " [B]ut I guarantee you that COBE did not fire males." When plaintiff complained to her supervisors about a pattern of discrimination, she believed the company was forbidden to retaliate against her pursuant to its own promises.

04-cv-01056 FPTO.DOC

-6-

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

Document 50

Filed 01/27/2006

Page 7 of 19

Note: When plaintiff was given the final written warning on September 8, 2003, she believed that she was being given a period of time in which her performance was supposed to improve. But they didn' say how long that period was. The next day, September 9, 2003, t plaintiff was terminated without being given any reason. Plaintiff denied that the company explained to her a basis for terminating her. Plaintiff recalled that in firing her they said simply they were going to offer a severance package " because we had resolved nothing." Indeed, Byram' own notes belie any assertion that plaintiff was given detailed reasons. s The accusations in the final written warning were substantially false and plaintiff was not insensitive to employees, including a subordinate of Thong Khamsitthisack. Plaintiff not only did not require the employee to walk out of the clean room, she directed a manager to get a wheelchair. Plaintiff fully cooperated with the firemen at the scene. There was never any procedure in place to deal with what occurred with the employee. Plaintiff believed it was appropriate to examine what could be done better. Plaintiff believed that the incident was simply a pretextual reason to use to get rid of her. " They had been waiting for anything to try to make it look [firing plaintiff] legal." " it had not been for my complaints of about If discrimination, they would never have tried to use such a flimsy excuse to let me go." Captain Michael G. Piper recalled personally interacting with plaintiff on many prior emergencies at the company. There had never been any problem with her. For this incident, Piper could not recall anything unusual that plaintiff did after she came out of the clean room (and he knew of nothing that occurred inside either). The most he could say about plaintiff was that she was " certainly upset." Later he said that she seemed " angry"but he described no gestures, no words, nothing else. Moreover, Piper affirmed that plaintiff learned that the patient could not walk, which confirms her previously memory of the same series of events. The patient was then brought out in a chair, which did not bother Piper at all. Moreover, Piper could not remember a single thing that plaintiff said (and thus could not have been critical of anything she said). The incident was not classified as a life-threatening emergency, as the company claims when it fired plaintiff. The incident was reported to the dispatcher as not being life-threatening. Plaintiff agreed it was not life threatening when she arrived at the scene, but if Thong wanted to go the hospital that was fine. Thong went to the hospital but was released immediately. Indeed, when plaintiff entered the building, the employees were all taking a break, smoking. It was clear that Byram and Oliver sought to embellish the accusation against plaintiff relating to Thong in order to trump up a colorable reason to fire her. Thus, the most that could be said for plaintiff' s conduct in the Thong incident is that she was angry. Axelrod had displayed extreme anger and loudly proclaimed " their ass"numerous times before, advocating illegal actions against fire employees, including firing them for filing workers compensation claims. Yet, Axelrod was not so much as reprimanded by Oliver or management, let alone disciplined or fired for his conduct. He was a male under 40 and had not complained about discrimination. Paulison, an eyewitness in the same department for two and one-half years, confirmed from her own observation that, " They wanted [plaintiff] out and were looking for a way to do it. They were simply waiting for a way to try to make it look legal."

04-cv-01056 FPTO.DOC

-7-

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

Document 50

Filed 01/27/2006

Page 8 of 19

After she was terminated, the company claims to have conducted an investigation and wrote a letter to plaintiff clearing itself (the company) of any wrongdoing. But the company never contacted plaintiff in said " investigation." Oliver said she made no effort to reach plaintiff. After plaintiff was fired, she was never given back her personal notes from the office. The defense apparently asserts that plaintiff was cited for misconduct during an earlier investigation by the Mountain States Employers Counsel. However, plaintiff was cleared. " Importantly, neither the initial complaints nor subsequent information described the behavior at issue as related to any protected characteristic under the law or COBE' EEO policy." s Part of plaintiff' job was to tell employees what their rights were in situations involving s medical issues, and sometimes employees were unhappy with what they heard. However, plaintiff interacted with employees the same for her many years at the company. Prior to plaintiff' complaints to Byram and Oliver about the pattern of discrimination at s the company, the company' reaction to the way plaintiff did her job was that she was doing an s excellent job. It was not until plaintiff complained about the pattern of discrimination that Byram and Oliver flip-flopped and began to use employee comments as a basis to try to get rid of plaintiff. It has always been the company policy when putting someone on a corrective action plan to give them time to demonstrate improvement. The company' own policies and procedures s require that for a corrective action plan, the " timeframes"to observe improvement must be set forth: " Timeframes for accomplishing these actions must be included in the plan." Plaintiff was not given time to demonstrate improvement. At the time she was handed the Final Written Warning, she commented that she believed it constituted " harassment." This document is the handwriting of Oliver. At that point, and given plaintiff' prior unhesitant complaints about a pattern of s discrimination at the company, Byram and Oliver were well aware that plaintiff was probably going to contact an attorney. Byram herself then contacted the company' own attorney. In fact, s that' exactly what plaintiff did, on the afternoon of September 8, 2003. The next day, plaintiff s gave HR a letter stating her belief that she was being discriminated and retaliated against. This was before she was terminated. The company provided plaintiff with a letter that termed her termination to be a " mutual separation."[" you accept this mutual separation. . . ." If ]. Byram initially decided on September 9, 2003 to declare plaintiff' termination to have s been a resignation. Thus, she kept notes of the meeting, and she wrote " QUIT"on it as the last note. It is obvious that after plaintiff left the office, Byram and Oliver decided to claim they fired plaintiff. Otherwise, it would look like retaliation for the letter complaining about discrimination/retaliation that plaintiff had turned in earlier in the morning. Although the checks had been prepared the previous night, it was obviously in expectation that plaintiff would accept the severance package and the " mutual separation"that

04-cv-01056 FPTO.DOC

-8-

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

Document 50

Filed 01/27/2006

Page 9 of 19

was written into the papers themselves. While the company claims that it created the termination papers the previous night, this is substantially false. The " Employee Termination Notice"was not created or signed until September 9, 2003. The wording and date of signatures on this document under the heading " Company Initiated Termination"confirms the signing on September 9, 2003 and the ex post facto manner in which the company decided to declare that plaintiff had been terminated the previous night (September 8). Oliver claimed that the Employee Termination Notice was prepared the previous night but not signed. By any reading of the document, this is highly improbable. It is incredible to suggest that Oliver drafted the paragraph under " Company Initiated Termination,"using the specific language therein (which is clearly tuned to the issue raised by plaintiff' written s complaint of discrimination the next morning) and then did not sign the document until the next day. Pursuant to the company' own policies and procedures, when a decision is made to s terminate an employee, his or her signature is supposed to be obtained. This was not done for plaintiff and the reason is patent, that the form was filled out after the fact on September 9, 2003. The company confirmed in its letter to the EEOC that its intention on the morning of September 9, 2003 was to " present the Charging Party with the opportunity to resign in lieu of termination." Further, the company admitted to the EEOC that the paperwork was prepared " in anticipation of that meeting." It is thus evident that the company thought that plaintiff would resign and the paperwork was prepared for that purpose, not to fire her. Directly contradicting what the company wrote to the EEOC, Oliver in her deposition claimed that the option of permitting plaintiff to resign never entered her thinking and it was not discussed with Byram. Thus, Oliver' credibility is significantly suspect. s Oliver' credibility is also suspect because she claimed that when she received the letter s in which plaintiff complained about discrimination/retaliation, Oliver did not read it. She claimed to have only " glanced at it,"even though reading it would have taken all of 15 seconds. Oliver claimed she didn' read the letter for the reason that " was focused on making sure that t I we go forward with the termination, yes." This assertion by Oliver is plainly false, and demonstrates that these human resources managers were keenly aware that they had to conjure up some way of camouflaging the fact that they decided to fire plaintiff in part because of what she wrote in the letter. The separation paperwork required plaintiff to waive her civil rights, including any claims of discrimination. If it is true that the company drafted the separation agreement on the evening of September 8, 2003, then it is patent that the company was concerned that plaintiff would bring a discrimination claim against the company. Plaintiff had never asked for such a separation agreement, nor for any waiver of her civil rights. This was all created by the company.

04-cv-01056 FPTO.DOC

-9-

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

Document 50

Filed 01/27/2006

Page 10 of 19

Pursuant to the terms of the separation agreement, plaintiff was supposed to be provided with 21 day to consider it. When plaintiff gave the company her complaint of discrimination in writing, the company decided to revoke the 21 days and fire her forthwith. Thus, the Employee Termination Notice was dated September 9, 2003. This amounted to further a further act of retaliation against plaintiff. The company' reason for firing plaintiff was also shown to be pretextual by the fact that s there was a pre-existing plan to cutback jobs, and a series of older females were terminated: Connie Reynolds, Teresa Drummond, Donna Michael, Suzie Chase, Jenny Adams, Sharon Oliver and Jerri Paulison. Plaintiff' termination was at least in part to " s reduce headcount," according to an insider in the HR department, Paulison. Plaintiff was not replaced. Byram confirmed that she considered eliminating plaintiff' job before the date of her firing. She even s spoke about the subject with Oliver and also with Stewart, the head of the company. Plaintiff' s position was eliminated. The company eliminated 40 headcount from its budget, according to Byram. Three of those eliminated headcount were in Byram' department. s Byram and Oliver claim that they decided to fire plaintiff because she denied any wrongdoing in the Thong incident. Yet, that was nothing new to them, as plaintiff had previously denied any wrongdoing in the Thong incident, which led the company to place plaintiff on a Final Written Warning. Thus, the only new fact known to the company when it decided to terminate plaintiff (without any chance to perform within the timeframe of the Final Written Warning) was that she had turned in a letter claiming discrimination and retaliation. At the time of the issuance of the Final Written Warning, Oliver had already presented plaintiff with the allegation: " final written warning was issued in the morning of -- I don' The t remember what day it was, when she clearly said -- after we presented everything to her, and she clearly said that if she had to do it over again, she couldn' change a thing." Indeed, plaintiff t was sent home " think about it,"i.e. think about the Final Written Warning. Thus, at that to point, there was no thought of firing plaintiff. Byram herself confirmed that when plaintiff was sent home it was for the purpose of thinking about how plaintiff would react to the Final Written Warning. Plaintiff was told that was the purpose: " Whether I [Byram] told her or Sharon told her, the intention was that she would have time to reflect on what had happened and the seriousness of what had happened." Oliver testified under oath that she wanted plaintiff to return the next morning to [d]iscuss the terms of the final written warning." Thus, again, there was patently no intent to fire plaintiff when she was sent home. Note: prior to the Final Written Warning, Oliver had no facts upon which to place plaintiff on any written warning. If she had such facts, she would have. No one else had such facts either. In Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the Supreme Court established in unequivocal language that the presence of a fact issue as to pretext alone suffices to deny summary judgment and permit jury determination. Reeves was decided by a unanimous Supreme Court. Id., 120 S.Ct. at 2103. In Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995), the Court of Appeals for the Tenth

04-cv-01056 FPTO.DOC

- 10 -

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

Document 50

Filed 01/27/2006

Page 11 of 19

Circuit was well ahead of Reeves in reaffirming the principle: " defendant fails to appreciate The that the Supreme Court has said that discriminatory animus may be inferred from the simple showing of pretext." In Reeves, supra, at 2110, the Supreme Court went on to criticize and reverse the circuit court's supplanting of the jury in determination of matters of credibility. The Tenth Circuit has ruled that a summary judgment motion shall be defeated if the plaintiff can create "a genuine issue concerning the sincerity of the proffered reasons for her termination." Cone v. Longmont United Hospital, 14 F.3d 526, 530 (10th Cir. 1994). In reversing the grant of summary judgment in an employment discrimination case, the Court of Appeals has relied upon the mere presence of contradictions within the very reasons of the employer that led to the employee' termination. Cole v. Ruidoso Mun. Schools, 43 F.3d 1373, s 1380 (10th Cir. 1994). As the Court of Appeals emphasized in Morgan v. Hilti, Inc., 108 F.3d 1319, 1323-24 (10th Cir. 1997): Pretext can be shown by ` such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer' proffered legitimate reasons for the action that s a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.' [citations omitted]. [emphasis added]. Indeed the existence of proximate satisfactory performance evaluations can raise " serious questions of material fact"regarding whether newfound criticisms of an employee are pretextual such that summary judgment is inappropriate. Cole, at 1380. This Court of Appeals has highlighted evidence in opposition to a motion for summary judgment including (a) that plaintiff continued to possess the objective qualifications she held when she was hired, or by (b) her own testimony that her work was satisfactory, even when disputed by her employer, or (c) by evidence that she had held her position for a significant period of time. MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1121 (10th Cir. 1991). Summary judgment may be defeated merely by a showing of disturbing procedural irregularities in the adverse employment action (which are present in this case, as discussed infra). See, Mohammed v. Callaway, 698 F.2d 395, 399 (10th Cir. 1983); Cone v. Longmont United Hospital, 14 F.3d 526, 532 (10th Cir. 1994); Colon-Sanchez v. Marsh, 733 F.2d 78, 81 (10th Cir.), cert. denied, 469 U.S. 855 (1984) [emphasis added]. Finally, any doubts concerning pretext should be resolved in plaintiffs'favor. See, Morgan v. Hilti, Inc., at 1324. The indicia of pretext in this case are powerful, as set forth supra. With regard to plaintiff' claim of retaliation, the elements are that, (1) plaintiff was s engaged in protected opposition to discrimination; (2) she suffered adverse employment action contemporaneous with or subsequent to such opposition; and (3) there is a causal connection between the protected activity and the adverse employment action. Cole, supra, at 1381 [citing Daniel v. Loveridge, 32 F.3d 1472, 1475 (10th Cir. 1994); Burrus v. United Tel. Co. of Kansas,

04-cv-01056 FPTO.DOC

- 11 -

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

Document 50

Filed 01/27/2006

Page 12 of 19

683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982)]. The causal connection can be shown by retaliatory action following on the heels of the assertion of civil rights. MacKenzie v. Atlantic Richfield Co., supra, at 906 F.Supp. at 576 (D.Colo. 1995); Cooper v. COBE Laboratories, Inc., 743 F.Supp. 1422, 1433 (D. Colo. 1990). Each case of retaliation must be considered within its own circumstances, and even extended temporal proximity will be sufficient for jury submission if there is " additional evidence from which a reasonable jury could find causation . . . ." See, O' v. Ferguson Neil Construction Co., 237 F.3d 1248, 1253 (10th Cir. 2001). The context in which any delay in retaliation occurs is an important consideration. See, Freeman v. Santa Fe Railway, 229 F.3d 1163 (10th Cir. 2000). Thus, evidence of a " marked shift in the attitudes and treatment"of a plaintiff " his supervisors"is evidence of retaliation supporting the causal connection. See, by Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002). As in Garrett, supra, plaintiff has both a temporal connection between her complaint of discrimination and the adverse actions against her, as well as additional evidence supporting the conclusion that the end product of the course of actions against her (reflecting a new attitude and treatment of her by her supervisors) was retaliatory. Moreover, plaintiff had complained about a pattern of discrimination to Oliver within one month before her firing. Further, she had complained of discrimination in a letter on the very morning that the company wanted to reach a mutual agreement to resign (although Oliver fabricated her testimony that resignation never entered her mind, as discussed supra). The evidence confirms that the company' termination s was a direct result of plaintiff' letter. s Plaintiff seeks a declaratory judgment declaring that the defendant corporation has violated the above-described statutes by retaliation against plaintiff in breach of two federal statutes; reinstatement in her job, with all attendant benefits and other amenities that she would have received were these illegal actions not taken against her; all compensation, back pay, equal pay, front pay and benefits that plaintiff was denied because of the defendant's acts, in a sum to be determined by the court and jury; liquidated and compensatory damages, including for future pecuniary losses, physical/medical injury and harm, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life, in a sum to be determined by the court and jury; exemplary or punitive damages in a sum to be determined by the court and jury; legal fees, disbursements, expert fees, and costs of this action; all legal interest on sums awarded; all issues so triable to be decided by a jury. b. Defendant' Statement of Defenses: s

On December 16, 2005, The Honorable Judge Edward W. Nottingham issued an Order and Memorandum Granting Defendant's Motion for Summary Judgment as to Plaintiff's claims for: (1) discrimination under the ADA, ADEA, and Title VII; (2) breach of contract; and promissory estoppel. Defendant's Motion for Summary Judgment was denied as to certain allegations of Plaintiff's claim for retaliation under the ADEA and Title VII. The following Statement of Defenses relates to the remaining claims at issue.

04-cv-01056 FPTO.DOC

- 12 -

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

Document 50

Filed 01/27/2006

Page 13 of 19

Defendant COBE Cardiovascular, Inc. (" COBE" is a global company that manufactures ) and sells medical equipment. COBE is an equal opportunity employer. Plaintiff Connie Reynolds (" Plaintiff" was hired by COBE in 1996, as a case manager for worker' ) s compensation claims. Plaintiff is a registered nurse. Over time, Plaintiff's responsibilities at COBE increased until Plaintiff was promoted to the position of 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' first point of contact for employees on medical issues, it was important that s Plaintiff be approachable and responsive to employees' medical needs. During the course of 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, " up get and walk around, even if it hurt." Plaintiff then advised the supervisor that she would come to facility immediately from her home nearby. Unbeknownst to Plaintiff, the supervisor had also called " 911,"which resulted in the Arvada Fire Department being summoned to the facility. When the Plaintiff arrived, she was described by witnesses as " loud"and " mad"that the fire department had been contacted, and that Plaintiff had interfered with the fire department' ability s to care for the injured employee. Employees who witnessed the events described Plaintiff as caring more about the facility being inconvenienced then the employee being treated. The following week, and as a result of the differences in the accounts of the events by Plaintiff and the other witnesses at the facility, COBE instituted an investigation into the Plaintiff' conduct. Upon conclusion of the investigation, COBE determined that Plaintiff' s s actions on the evening of August 27th were unacceptable and decided to issue a final written warning to Plaintiff. When Plaintiff received the 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. Plaintiff was sent home for the remainder of the day. Due to Plaintiff' failure to accept responsibility for her behavior and her affirmative s refusal to modify her behavior, COBE determined that afternoon that it had no option but to terminate Plaintiff' employment. COBE made the decision to terminate Plaintiff' employment s s on September 8, prepared all of the termination paperwork, and even called its payroll manager into the office that evening to cut the final paychecks. On the morning of September 9, 2003, COBE representatives Sharon Oliver and Carolyn Byram planned to meet with Plaintiff immediately upon her arrival to advise her of the decision to terminate her employment. When Plaintiff arrived at work, she immediately presented Ms.

04-cv-01056 FPTO.DOC

- 13 -

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

Document 50

Filed 01/27/2006

Page 14 of 19

Oliver with a typewritten memorandum in which she stated she would now comply with the requirements of the written warning, but also stated the accusations against her were false and were motivated by her age and for other reasons. Approximately 15 minutes after Ms. Oliver received the memo, Oliver and Byram met with Plaintiff and terminated her employment, as was previously decided the night before. Neither Ms. Oliver or Ms. Byram fully reviewed the memorandum presented by Plaintiff prior to her termination. Subsequent to Plaintiff' termination, Sharon Oliver investigated the allegations raised by s Plaintiff's memorandum and found the allegations to be without merit. At no time during her employment or termination was Plaintiff ever subjected to retaliation of any kind. Defendant, had a good faith, non-discriminatory reason to terminate Plaintiff' employment because of her s behavior during the August 27, 2003 incident and because of her reaction to the September 8, 2003 Final Written Warning. In addition to the defenses set forth above, COBE asserts the following additional affirmative defenses to the Plaintiff' Complaint: s 1. Plaintiff' Complaint fails to state any claim upon which relief may be granted. s 2. Plaintiff has failed to mitigate her damages, if any. 3. COBE' conduct as it related to Plaintiff was reasonable and taken in good faith. s 4. Plaintiff has been the cause of her own damages. 5. The actions of COBE were based upon legitimate business justifications. 6. Plaintiff' claims for damages or injuries, if any, arising out of or in the course of s her employment are barred in whole or in part by the exclusive remedy provisions of the Colorado Workers' Compensation Act. In addition, COBE objects to Plaintiff' statement of facts to the extent the statement of s facts exceeds the district court' determination of the remaining issues to be tried and to the s extent said statement exceeds and/or deviates from the claims alleged by Plaintiff in her Complaint. 4. STIPULATIONS 1. Plaintiff is a female, born on December 10, 1945. 2. Plaintiff worked for Defendant from April 1996 through September 9, 2003 as a disability case manager and nurse. 3. Plaintiff was involuntarily terminated.

04-cv-01056 FPTO.DOC

- 14 -

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

Document 50

Filed 01/27/2006

Page 15 of 19

5. PENDING MOTIONS None at the present time. The Defendant will file Motions in Limine in accordance with the Court' trial deadlines and Defendant intends to file a Rule 56(d) Motion. s 6. WITNESSES a. Non-Expert Witnesses

Plaintiff: (1) Witnesses who will be present at trial: 1. Connie Reynolds, c/o Olsen & Brown LLC, 8362 Greenwood Drive, Niwot, CO 80503. 2. Sharon Oliver, 12564 Newton Way, Broomfield, Colorado, 303-410-1121. 3. Carolyn Byram, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. (2) Witnesses who may be present at trial: 4. Thong Khamsitthisack, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. 5. Captain Mike Piper, 10723 W. 54th Place, Arvada, Colorado, 80002, 303-4234437. 6. Keith Axelrod, 11581 W. 107th Place, Broomfield, Colorado, 80021-3540, 303474-0613. 7. Teresa Drummond, address and phone number unknown. 8. Jerri Paulison, address unknown, Telephone: 303-526-9030. 9. Dr. Jonathon Walter, 7950 Kipling, Arvada, CO 8005 (303-425-1018). 10. Elizabeth McCarthy, 6564 Independence St., Arvada, Colorado 80004. 11. Patricia Bardo-Hankie, address unknown. 12. Judy Divine, c/o COBE Cardiovascular, Inc., 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. 13. Rose Pass, 15002 E. Gunnison Place, Aurora, CO 80012, (303) 631-7579. 14. Nancy Schriver, c/o COBE Cardiovascular, Inc., 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. 15. Kelli Richers, c/o COBE Cardiovascular, Inc., 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. 16. Jim Russell, address and telephone unknown. 17. Any witness listed by the defendant who has been previously disclosed by name. 18. Any witness needed to authenticate documents. 19. Any witness needed for rebuttal purposes.

04-cv-01056 FPTO.DOC

- 15 -

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

Document 50

Filed 01/27/2006

Page 16 of 19

b. Expert Witnesses Plaintiff has no retained experts. Dr. Walter may be testifying as a treater. Note: Defendant objects to any witness listed by Plaintiff not previously disclosed through Plaintiff' Rule 26(a)(1) disclosures, and to any expert witness not properly identified pursuant s to Rule 26(a)(2). Defendant: (1) Witnesses who will be present at trial:

1. Connie Reynolds, 12173 West 84th Place, Arvada, Colorado, telephone number unknown. Plaintiff will testify in person. 2. Sharon Oliver, 12564 Newton Way, Broomfield, Colorado, 303-410-1121. Ms. Oliver will testify in person. 3. Carolyn Byram, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. Ms. Byram will testify in person. 4. Laurie Sadler, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. Ms. Sadler will testify in person. 5. Thong Khamsitthisack, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. Mr. Khamsitthisack will testify in person. 6. Sally Pena, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. Ms. Pena will testify in person. 7. Captain Mike Piper, 10723 W. 54th Place, Arvada, Colorado, 80002, 303423-4437. Captain Piper will testify in person. (2) Witnesses who may be present at trial: 8. Teresa Drummond, address and phone number unknown. Ms. Drummond will testify in person. 9. Greg Sperling, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. Mr. Sperling will testify in person. 10. Craig Snyder, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. Mr. Snyder will testify in person. 11. Gracie Lake, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. Ms. Gracie will testify in person. 12. Sue Kinzbach, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. Ms. Kinzbach will testify in person. 13. Kevin McMullin, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. Mr. McMullin will testify in person. 14. Bob Smith, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. Mr. Smith will testify in person. 15. Teresa Wentland, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. Ms. Wentland will testify in person. 16. Various representatives of the Second Shift at COBE, COBE Cardiovascular, 14401 W. 65th Place, Arvada, Colorado, 303-425-6000. The representatives will testify in person.

04-cv-01056 FPTO.DOC

- 16 -

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

Document 50

Filed 01/27/2006

Page 17 of 19

17. Various representatives of the Arvada Fire Dept who attended the 911 response call on August 27, 2003, 10723 W. 54th Place, Arvada, Colorado, 80002, 303-4234437. The representatives will testify in person. 18. Mr. Mark Flynn, Mountain States Employers Council, Inc., 1799 Pennsylvania Street, Denver, Colorado, 80201, 303-839-5177. Mr. Flynn will testify in person. 19. Any witness listed by Plaintiff. 20. Any witness necessary to authenticate a document. 21. Any witness necessary for impeachment or rebuttal. b. Expert Witnesses None. Note: Plaintiff objects to any witness not previously disclosed and also to any witness whose name is not listed above. 7. EXHIBITS a. (1) (2) List of Exhibits Plaintiff: Defendant: See attached list. See attached list.

b. Copies of listed exhibits must be provided to opposing counsel no later that five days after the Final Pretrial Conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served (by electronic means, hand delivery or facsimile) no later than eleven days after the exhibits are provided. 8. DISCOVERY Discovery has not been completed. By letter dated January 4, 2006, Defendant requested Plaintiff to update her Responses to Interrogatories addressing damages and her efforts to seek re-employment since her termination from COBE. On January 23, 2006, Defendant received a draft response from Plaintiff, partially addressing Defendant' requests. s 9. SPECIAL ISSUES Defendant: Defendant objects to Plaintiff' Statement of Claims because it attempts to raise and res argue claims that have been resolved on summary judgment. On May 24, 2005, Plaintiff filed a Complaint in this Court against COBE alleging claims for: (1) 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 ),

04-cv-01056 FPTO.DOC

- 17 -

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

Document 50

Filed 01/27/2006

Page 18 of 19

seq. (2005); (2) retaliation in violation of Title VII and ADEA; and (3) breach of contract and 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, granted in part and denied in part COBE' motion. s As a result of this Court' December 16, 2005, Order and Memorandum, all that remains s to be litigated in this case is whether COBE retaliated against Plaintiff in violation of Title VII or ADEA. The Court' Order further limited the evidence upon which Plaintiff could base these s remaining claims. TITLE VII The Court found relevant only one piece of Plaintiff' evidence supporting her Title VII s retaliation claim. Order and Memorandum, pp. 26-28. Specifically, the Court found that Plaintiff' comments to Sharon Oliver concerning sexual discrimination at COBE made one s month before Plaintiff' termination on September 9, 2003, precluded summary judgment on the s Title VII retaliation claim. Id. Thus the only issue for trial under Title VII is whether Plaintiff was retaliated against for comments she allegedly made to Sharon Oliver approximately one month prior to her termination. ADEA With respect to Plaintiff' ADEA retaliation claim, the Court found relevant, and s therefore denied summary judgment, because of two pieces of the Plaintiff' supporting s evidence. Order and Memorandum, pp. 35-37. This evidence consisted of Plaintiff' comments s to Sharon Oliver concerning age discrimination at COBE made one month before Plaintiff' s termination on September 9, 2003, and portions of Plaintiff' letter to Sharon Oliver and Carolyn s Byram, dated September 8, 2003. Id. Thus, the only issue for trial under the ADEA is whether Plaintiff was retaliated against for comments she allegedly made to Sharon Oliver concerning age discrimination at COBE approximately one month before her termination, and for the statement regarding age in her memo to Sharon Oliver and Carolyn Byram, dated September 8, 2003. Plaintiff' Position as to the above Special Issue Posed by Defendant: s The Court' summary judgment ruling did not include an in limine ruling that any s particular evidence was irrelevant nor did it limit evidence. Evidence of defendant' prior s treatment of plaintiff (and others) is classically relevant pursuant to multiple evidentiary rules and methods of proof. Indeed, even evidence as to the dismissed claims of discrimination is relevant to plaintiff's good faith belief that she was being discriminated against, and said good faith is a required element of her retaliation claims. Evidence of a pattern of retaliation and/or reaction over time, even years, is patently relevant, even if said evidence was not within the timeliness threshold to ipso facto obviate summary judgment. Prior acts are relevant as background evidence. See, Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003); Croy v.

04-cv-01056 FPTO.DOC

- 18 -

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

Document 50

Filed 01/27/2006

Page 19 of 19

COBE Laboratories, Inc., 345 F.3d 1199 1203 (10th Cir. 2003) [both citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)]. 10. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final 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 Preliminary Pretrial Order and 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 the pleadings. 11. TRIAL AND ESTIMATED TRIAL TIME; TRIAL PREPARATION CONFERENCE a. A four day jury trial is set to commence at 9:00 a.m. before the Honorable Judge Edward W. Nottingham. Trial Date: February 13, 2006. Trial Preparation Conference Date and Time: Wednesday, February 8, 2006 at 10:30 o' clock a.m. At the trial preparation conference, counsel are directed to comply with the Instructions Concerning Preparation for Trial Preparation Conference delivered to all parties at the Final Pretrial Conference. DATED this 27th day of January, 2006. BY THE COURT: b. c.

s/ Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Court Judge FINAL PRETRIAL ORDER TENDERED FOR REVIEW: s/ John R. Olsen John R. Olsen, Esq. Olsen & Brown LLC 8362 Greenwood Drive Niwot, CO 80503 Telephone: 303-652-1133 Attorney for Plaintiff s/ Michael D. Nosler Michael D. Nosler, Esq. Rothgerber Johnson & Lyons LLP 1200 17th Street, Suite 3000 Denver, CO 80202 Telephone: 303-623-9000 Attorney for Defendant

04-cv-01056 FPTO.DOC

- 19 -