Free Motion for Miscellaneous Relief - 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 RULE 56(d) MOTION AND CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A

Defendant COBE Cardiovascular, Inc. ("COBE"), by its counsel and pursuant to Rule 56(d) of the Federal Rules of Civil Procedure, hereby moves this Court for an Order: (1) prohibiting Plaintiff Connie J. Reynolds ("Plaintiff") from offering any evidence or testimony controverting the factual and legal findings of this Court's Order and Memorandum, dated December 16, 2005; and (2) establishing, as conclusive, the facts that were found by this Court to be admitted or without substantial controversy as outlined in this Court's Order and Memorandum, dated December 16, 2005. As grounds for the Motion, COBE states the following: INTRODUCTION On May 24, 2004, Plaintiff filed a complaint against COBE in this Court alleging claims for: (1) disability, sex, and age discrimination in violation of the Americans with Disability Act

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("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 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 COBE's Motion as to all claims except certain limited claims for retaliation in violation of Title VII and ADEA. As a result of this Court's Order and Memorandum, all that remains to be litigated in this case is whether COBE retaliated against Plaintiff in violation of Title VII or ADEA. Nonetheless, as evidenced by Plaintiff's Statement of Claims in the proposed Final Pretrial Order, COBE expects Plaintiff to attempt to offer evidence and testimony controverting the specific findings of this Court's Order and Memorandum.1 Furthermore, Plaintiff counsel has rejected all but three stipulations offered by COBE that were derived directly from the Court's Order and Memorandum. The rejected stipulations include the following. 1. At all times during her employment at COBE, Plaintiff understood that she was

employed-at-will. Order and Memorandum, p.39. 2. Plaintiff's job duties while employed at COBE included: training, tracking

Family and Medical Leave Act compliance, administering COBE's short-term disability policy, and managing COBE's worker's compensation and ADA claims. Order and Memorandum, p.3.

COBE anticipates filing a Motion in limine to address disputes over the admissibility of certain testimony and evidence.
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3.

In April of 2003, Carolyn Byram prepared an informal performance review of

Plaintiff, stating "[i]t is critical . . . that you are sensitive to what and how you communicate your message to employees." Order and Memorandum, p.5. 4. On August 27, 2003, a COBE employee became ill and fell to the floor in pain.

Order and Memorandum, p.6. 5. Thongsmough Khamsitthisack and Sally Pena, both COBE employees, witnessed

Plaintiff's interaction with the emergency response professionals attending to the injured employee on August 27, 2003. Order and Memorandum, p.6. 6. Khamsitthisack and Pena were of the opinion that Plaintiff's behavior was

inappropriate, and both employees reported their opinions to their supervisor or manager. Order and Memorandum, p.6. 7. Khamsitthisack also received complaints from other employees who disapproved

how Plaintiff behaved during the incident. Order and Memorandum, p.6. 8. Captain Michael Piper of the Arvada Fire Department believed Plaintiff's

behavior was unprofessional and made his job more difficult. Order and Memorandum, p.7. 9. Sharon Oliver received reports of employees' complaints regarding Plaintiff's

behavior during the August 27, 2003, incident and proceeded to commence an investigation. As part of the investigation, she met with employees, Captain Piper, and Plaintiff, to discuss the incident. Ms. Oliver then discussed her findings with Carolyn Byram. Order and Memorandum, p.7.

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10.

On the morning of September 8, 2003, Oliver and Byram presented Plaintiff with

a final written warning. Order and Memorandum, p.8. 11. Plaintiff did not acknowledge any inappropriate actions with respect to the

August 27, 2003, incident, and told Oliver and Byram that she would handle herself in the same manner if the situation were to repeat itself. Order and Memorandum, p.8. 12. After the meeting with Plaintiff on September 8, 2003, Oliver and Byram met

with each other later in the day. Order and Memorandum, p.8. 13. On the evening of September 8, 2003, Laurie Sadler, COBE's payroll manager,

came to COBE's offices in order to prepare Plaintiff's final paychecks. Order and Memorandum, p.9. 14. Computer records confirm that Plaintiff's termination letter and proposed

severance agreement were prepared and last revised on September 8, 2003. Order and Memorandum, p.9. 15. Plaintiff was terminated on the morning of September 9, 2003, shortly after

Plaintiff presented her response to the written warning of September 8, 2003. Order and Memorandum, p.30. 16. Plaintiff was not replaced by a younger person in her employment position. In

fact, Plaintiff's position was eliminated, and Plaintiff was not replaced. Order and Memorandum, p.33.

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Pursuant to Rule 56(d), the foregoing facts have been admitted or this Court has found these facts to be without substantial controversy and should be deemed established for purposes of trial. ARGUMENT Rule 56(d) of the Federal Rules of Civil Procedure, entitled "Case Not Fully Adjudicated on Motion," states: If on motion under this rule judgment is not rendered upon the whole case . . . and a trial is necessary, the court . . . shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy . . . and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

Fed. R. Civ. Pro. 56(d) (emphasis added). The provisions of Rule 56(d) controls when, like here, a Court enters summary judgment on less than all claims. When a Court partially grants a motion for summary judgment, the ruling is the law of the case. United States v. Horton, 622 F.2d 144, 148 (5th Cir. 1980). Furthermore, Rule 56(d) "imposes a duty on [the] court . . . to make an order formulating the issues for trial, to the extent practicable." Connelly v. Wolf, Block, Schorr & Solis-Cohen, 463 F. Supp. 914, 920 (E.D.Pa. 1978); 11 JAMES WM . MOORE ET AL., MOORE 'S FEDERAL PRACTICE ¶ 56.40[2] (3d ed. 2005) ("Should the court determine that there are matters that are not in controversy, it must enter an order detailing these facts."). As such, issues of both law and fact can be resolved by partial summary judgment. MOORE , MOORE 'S FEDERAL PRACTICE ¶ 56.40[2]. "Once a district judge issues a partial summary judgment order removing certain claims from a case, the parties
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have a right to rely on the ruling by forbearing from introducing any evidence or cross-examining witnesses in regard to those claims." Leddy v. Standard Drywall, Inc., 875 F.2d 383, 386 (2d Cir. 1989). Therefore, granting partial summary judgment can result in the exclusion of certain evidence and testimony. MOORE , MOORE 'S FEDERAL PRACTICE ¶ 56.40[2]. In this case, COBE moved for summary judgment on all claims. The Court subsequently granted in part and denied in part COBE's motion. The result of the Court's ruling was that all claims were dismissed except two. In order to grant summary judgment on any claim, the Court had to find, while construing the facts in the light most favorable to the Plaintiff, that no issue of genuine fact existed. When the Court partially granted COBE's motion it implicitly determined, as a matter of law, that certain facts and issues were not in dispute. Considering the Court's required summary judgment analysis, the fact that the Court rendered judgment on some but not all claims, and Rule 56(d)'s mandate that the Court make factual and legal findings when issues are not in dispute, the Court's December 16, 2005, Order and Memorandum is "an order specifying the facts that appear without substantial controversy" under Rule 56(d). Thus, the factual findings therein should be "deemed established" for trial. Fed. R. Civ. Pro. Rule 56(d); see id. Advisory Committee Notes ("partial summary judgment is . . . a pretrial adjudication that certain issues shall be deemed established for th trial of the case"). Accordingly, Plaintiff should be precluded from retrying factual and legal issues already disposed of by this Court in its December 16, 2005, Order and Memorandum. Furthermore, the Court should order these facts "deemed established" for purposes of trial.

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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., pursuant to Fed. R. Civ. Pro. Rule 56(d), respectfully moves this Court for an Order: (1) prohibiting Plaintiff Connie J. Reynolds from offering any evidence or testimony controverting the factual and legal findings of this Court's Order and Memorandum, dated December 16, 2005; and (2) establishing as conclusive, the following facts which were found by this Court to be admitted or without substantial controversy as outlined in this Court's Order and Memorandum, dated December 16, 2005: 1. At all times during her employment at COBE, Plaintiff understood that she was

employed-at-will. Order and Memorandum, p.39. 2. Plaintiff's job duties while employed at COBE included: training, tracking Family

and Medical Leave Act compliance, administering COBE's short-term disability policy, and managing COBE's worker's compensation and ADA claims. Order and Memorandum, p.3. 3. In April of 2003, Carolyn Byram prepared an informal performance review of

Plaintiff, stating "[i]t is critical . . . that you are sensitive to what and how you communicate your message to employees." Order and Memorandum, p.5.

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4.

On August 27, 2003, a COBE employee became ill and fell to the floor in pain.

Order and Memorandum, p.6. 5. Thongsmough Khamsitthisack and Sally Pena, both COBE employees, witnessed

Plaintiff's interaction with the emergency response professionals attending to the injured employee on August 27, 2003. Order and Memorandum, p.6. 6. Khamsitthisack and Pena were of the opinion that Plaintiff's behavior was

inappropriate, and both employees reported their opinions to their supervisor or manager. Order and Memorandum, p.6. 7. Khamsitthisack also received complaints from other employees who disapproved

how Plaintiff behaved during the incident. Order and Memorandum, p.6. 8. Captain Michael Piper of the Arvada Fire Department believed Plaintiff's behavior

was unprofessional and made his job more difficult. Order and Memorandum, p.7. 9. Sharon Oliver received reports of employees' complaints regarding Plaintiff's

behavior during the August 27, 2003, incident and proceeded to commence an investigation. As part of the investigation, she met with employees, Captain Piper, and Plaintiff, to discuss the incident. Ms. Oliver then discussed her findings with Carolyn Byram. Order and Memorandum, p.7. 10. On the morning of September 8, 2003, Oliver and Byram presented Plaintiff with

a final written warning. Order and Memorandum, p.8.

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11.

Plaintiff did not acknowledge any inappropriate actions with respect to the

August 27, 2003, incident, and told Oliver and Byram that she would handle herself in the same manner if the situation were to repeat itself. Order and Memorandum, p.8. 12. After the meeting with Plaintiff on September 8, 2003, Oliver and Byram met

with each other later in the day. Order and Memorandum, p.8. 13. On the evening of September 8, 2003, Laurie Sadler, COBE's payroll manager,

came to COBE's offices in order to prepare Plaintiff's final paychecks. Order and Memorandum, p.9. 14. Computer records confirm that Plaintiff's termination letter and proposed

severance agreement were prepared and last revised on September 8, 2003. Order and Memorandum, p.9. 15. Plaintiff was terminated on the morning of September 9, 2003, shortly after

Plaintiff presented her response to the written warning of September 8, 2003. Order and Memorandum, p.30. 16. Plaintiff was not replaced by a younger person in her employment position. In

fact, Plaintiff's position was eliminated, and Plaintiff was not replaced. Order and Memorandum, p.33. Dated this 25th day of January, 2006.

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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 25th day of January, 2006, I electronically filed the foregoing DEFENDANT COBE CARDIOVASCULAR, INC.'S RULE 56(d) MOTION AND CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A 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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