Free Proposed Scheduling Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-0687-PSF-BNB MARY JO LAIRD, Plaintiff, v. GUNNISON COUNTY, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF GUNNISON, THE BOARD OF TRUSTEES FOR THE GUNNISON COUNTY PUBLIC LIBRARY, JOHN DEVORE, and PEGGY MARTIN, in their individual capacities, Defendants. ______________________________________________________________________________ SCHEDULING ORDER ______________________________________________________________________________ 1. DATE OF CONFERENCE The Scheduling Conference in this matter will be held before United States Magistrate Judge Boyd N. Boland on December 5, 2005, at 11:00 a.m., in Courtroom 2 of the Alfred A. Arraj United States Courthouse, Denver, Colorado. Appearing as counsel on behalf of the parties are as follows: Nathan Davidovich, Esq. Kennedy Childs & Fogg, P.C. 1050 17th Street, Suite 2500 Denver, Colorado 80265 Telephone: (303) 825-2700 Counsel for Plaintiff

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Eric M. Ziporin, Esq. Senter Goldfarb & Rice, L.L.C. 1700 Broadway, Suite 1700 Denver, Colorado 80290 (303) 320-0509 Counsel for Defendants 2. STATEMENT OF CLAIMS AND DEFENSES a. Plaintiff: Plaintiff, Mary Jo Laird ("Plaintiff" or "Mrs. Laird"), was employed by

the County of Gunnison ("Gunnison") for over 14 years before her termination in September 2002. During her entire employment she was a librarian in a branch of the Gunnison library system and worked in the library in Crested Butte, Colorado. From 1993 until her termination, Mrs. Laird was the Branch Librarian at the Crested Butte Library. From at least 1996 until 2002, shortly before her termination, she worked under a job description which contained the wording, under "Desired Minimum Qualifications", that the person in this position could have "any equivalent combination of education and experience", and that a "Masters of Library Science" was "preferred". Based on her experience she continued working, despite not having a Masters of Library Science. She did however have a Bachelors Degree in education. That did not appear to present a problem until her position was "reclassified" on May 13, 2002 to the position of Library Manager. The job description of the "reclassified position" did not differ materially from the job description that Mrs. Laird had been performing for at least the past 6 years, with the exception of the requirement for a Masters in Library Science. On September 18, 2005, Mrs. Laird was notified that her position at the Crested Butte Library was being eliminated and that her services would no longer be needed after September 30, 2002. She was the victim of a "reduction of force" of one person ­ herself! She was told that

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she didn't qualify for the newly "reclassified" position as she did not possess a Master's Degree in Library Science. It should be noted that Gunnison, prior to Plaintiff's termination, had a number of positions, including that of the County Manager, where equivalent experience could replace a degree. For example, Defendant DeVore, the County Manager, was in a job which preferred a master's degree, and his bachelor's degree together with equivalent experience was sufficient to employ and retain him in that position. The underlying reason for the "reclassification" of Plaintiff's position and her involuntary separation from Gunnison was her alleged inability to do the job. Under the Personnel Policies of Gunnison, if an employee was unable to do an adequate job, she could be terminated, but such termination required her to be provided with an appeal process, which included the appointment of an independent hearing officer to determine if cause exists for the termination. If there were a reduction in force, according to the Personnel Policies, an employee would not be entitled to an appeal. The Personnel policies contain no guidelines for determining when an employee is to be laid off as part of a reduction in force. Gunnison also knew that if Mrs. Laird were merely demoted to another position she would also have been entitled to an appeal, with the appointment of an independent hearing officer, which was not desired by Gunnison . Mrs. Laird had an implied contract with Gunnison, by virtue of the Personnel Policies, that she would not be terminated or demoted, or suffer an adverse employment action without the right to appeal. The existence of such contract turned her at-will employment into a constitutionally protected property right, which she could not be deprived of without due process as guaranteed by both the Colorado and United States Constitutions. The Gunnison Personnel Policies state that an employee has a right to a grievance and or an appeal if any action has been

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taken affecting job classification, pay or status, or "any other term or condition of employment" . The same policies also guarantee an employee the right to a formal hearing, by an independent hearing officer, "following receiving a written notice of dismissal". While Mrs. Laird's letter from Gunnison does not use the word "dismiss", it clearly tells her that a major term of her employment has been affected and that her services will no longer be required by Gunnison. The effect is the same and she had an absolute right to appeal. The attempt to label her dismissal as a "reduction in force" or as a "lay-off" is nothing but a pretext for the unconstitutional deprivation of her constitutionally protected property rights. Plaintiff makes claims against Defendants under 42 USC 1983 and 1985 for deprivation of plaintiff's constitutional rights to property without due process of law, as well as for breach of contract and allegations of promissory estoppel. b. Defendants: Defendants deny the substantive allegations within Plaintiff's Third

Amended Complaint and Jury Demand. Defendants deny that Plaintiff had a due process right in her employment with Gunnison County as she was an at-will employee under Colorado law. Defendants deny that they violated Plaintiff's Fifth and Fourteenth Amendment rights under the United States Constitution. Defendants deny that they violated Plaintiff's due process rights under Article II, Section 25 of the Colorado Constitution, or that Plaintiff has an implied cause of action under the Colorado Constitution. Defendants deny that they conspired to violate

Plaintiff's civil rights. Defendants deny that they breached any employment contract, or that any employment contract ever existed, express or implied. Defendants deny that the breached any express or implied covenant of good faith and fair dealing. Defendants deny that they made any employment promises to Plaintiff and that Plaintiff relied upon any employment promises to her

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detriment. Defendants at all times acted in good faith and without the intent to injure Plaintiff or deprive her of her constitutional rights. As for affirmative defenses, Plaintiff's Complaint fails, at least in part, to state a claim upon which relief can be granted. To the extent that Plaintiff may be alleging state tort claims against Defendants, Plaintiff's claims are barred or limited by the Colorado Governmental Immunity Act, §§ 24-10-101, et seq., 7B C.R.S. (2004). Plaintiff's claims against Defendants John DeVore and Peggy Martin are barred by the doctrine of qualified immunity. Plaintiff has failed to reasonably mitigate her alleged damages. Plaintiff's alleged damages, if any, were caused by reason of Plaintiff's own acts and conduct. Plaintiff's claims may be barred by the applicable statute of limitations. Plaintiff's damages, if any, are not of the nature and extent as alleged by Plaintiff. Defendants reserve the right to add any additional defenses within any responsive pleading filed pursuant to Fed.R.Civ.P. 8 and/or Fed.R.Civ.P. 12. Defendants further reserve their right to add any defenses which may become apparent during discovery. 3. UNDISPUTED FACTS The following facts are undisputed: None. 4. COMPUTATION OF DAMAGES Plaintiff: Plaintiff is seeking economic and non economic damages losses related to her discharge, including backpay and benefits, front pay, and compensatory damages. The exact amount of these damages is not possible to calculate at this time. In addition, Plaintiff is seeking exemplary damages under 42 U.S.C. ' 1983 and her attorney fees and costs in this action, which

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cannot be calculated at this time. She also requests pre- and post-judgment on any award and any other damages permitted by law. Defendants: Defendants are not seeking any damages from the Plaintiff, but reserve the right to seek attorneys' fees and costs to which they may be entitled. 5. REPORT OF PRE-CONFERENCE DISCOVERY AND MEETING UNDER FED. R. CIV. P. 26(F) a. The parties conducted meetings pursuant to Fed.R.Civ.P. 26(f) during the week of

November 28, 2005. b. Participants in the meeting pursuant to Fed. R. Civ. P. 26(f): Nathan Davidovich, Esq., Counsel for Plaintiff Eric M. Ziporin, Esq., Counsel for Defendants c. The parties propose a change to the timing of initial disclosures under

Fed.R.Civ.P. 26(a)(1). d. Defendants provided their initial disclosures on March 11, 2005. Plaintiff has yet

to provide her initial disclosures, but will do so within seven (7) days of the Scheduling Conference. e. Plaintiff and Defendants do not agree to conduct any informal discovery.

However, if that should change, the parties represent that they will immediately notify the Court in writing of any agreed to informal discovery, including any joint interviews with potential witnesses, exchanges of documents, and joint meetings with clients to discuss settlement. 6. CONSENT The parties do not consent to the jurisdiction of a magistrate judge with the exception of the referral of Defendants' Motion for Summary Judgment filed on May 24, 2004.

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7. CASE PLAN AND SCHEDULE a. Deadline for Joinder of Parties and Amendment of Pleadings:

The parties agree that the deadline for the joinder of parties and amendment of pleadings has expired. b. Discovery Cut-off:

The deadline for the completion of all discovery in this case is April 5, 2006. c. Dispositive Motion Deadline:

The deadline for the filing of any dispositive motion in this case is May 5, 2006. d. Expert Witness Disclosure: (1) Anticipated fields of expert testimony, if any: a. of economics. b. Defendants: Defendants will call a rebuttal expert in any field or Plaintiff: Plaintiff intends to designate an expert in the field

similar field designated by Plaintiff. (2) witnesses. (3) The parties shall designate all experts and provide opposing counsel and The parties have agreed that each side may retain no more than 2 expert

any pro se party with all information specified in Fed.R.Civ.P. 26(a)(2) on or before February 17, 2006. (4) The parties shall designate all rebuttal experts and provide opposing

counsel and any pro se party with all information specified in Fed.R.Civ.P. 26(a)(2) on or before March 17, 2006.

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(5)

Notwithstanding the provisions of Fed.R.Civ.P. 26(a)(2)(B), no exception

to the requirements of the rule will be allowed by stipulation of the parties unless the stipulation is approved by the Court. e. Deposition Schedule:
Date of Deposition Time of Deposition Expected Length of Deposition

Name of Deponent

Plaintiff

9:00 a.m.

7 hours

Other Depositions may be added as soon as written discovery progresses. f. Interrogatory Schedule

All interrogatories must be mailed no later than March 3, 2006 so that they may be responded to by the discovery cut-off deadline of April 5, 2006. g. Schedule for Request for Production of Documents

All requests for production of documents must mailed no later than March 3, 2006 so that they may be responded to by the discovery cut-off deadline of April 5, 2006. h. Discovery Limitations: (1) The parties ask that the presumptive rule be applied, that being

Fed.R.Civ.P. 30(a)(2)(A), and that each side be allowed to conduct ten (10) depositions, inclusive of experts. (2) depositions. (3) None of the parties propose any modifications on the presumptive number Each party may serve twenty-five (25) None of the parties anticipate the need for a limitation on the length of

interrogatories contained in the federal rules.

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interrogatories on the opposing party, including all discrete subparts, in accordance with Fed.R.Civ.P. 33(a). (4) Each party may serve twenty-five (25) requests for production of

documents. Each party may serve twenty-five (25) requests for admissions. (5) Other Planning or Discovery Orders 8. SETTLEMENT As required by Fed. R. Civ. P. 26(f), the parties discussed the possibilities for a prompt settlement or resolution of the case by alternate dispute resolution. The parties will promptly notify the court if the need for a formal settlement conference should arise. 9. OTHER SCHEDULING ISSUES a. There are no discovery or scheduling issues on which counsel, after a good-faith

effort, were unable to reach an agreement. b. The anticipated length of trial is 5 days to a jury. 10. DATES FOR FURTHER CONFERENCES a. A settlement conference will be held on _________________________ at

___________ o'clock ___ .m. It is hereby ordered that all settlement conferences that take place before the magistrate judge shall be confidential. ( ) ( ) Pro se parties and attorneys only need be present. Pro se parties, attorneys, and client representatives with authority to settle must be

present. (NOTE: This requirement is not fulfilled by the presence of counsel. If an insurance company is involved, an adjustor authorized to enter into settlement must also be present).

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( )

Each party shall submit a Confidential Settlement Statement to the magistrate

judge on or before _______________________________ outlining the facts and issues in the case and the party's settlement position. b. Status conferences will be held in this case at the following dates and times:

______________________________________________________________________________ ______________________________________________________________________________ c. A final pretrial conference will be held in this case on

______________________________ at ___________ o'clock ____.m. A final pretrial order shall be prepared by the parties and submitted to the court no later than five days before the final pretrial conference. 11. OTHER MATTERS In addition to filing an appropriate notice with the clerk's office, counsel must file a copy of any notice of withdrawal, notice of substitution of counsel, or notice of change of counsel's address or telephone number with the clerk of the magistrate judge assigned to this case. In addition to filing an appropriate notice with the clerk's office, a pro se party must file a copy of a notice of change of his or her address or telephone number with the clerk of the magistrate judge assigned to the case. The parties have not agreed that it is necessary to obtain a protective order to maintain the confidentiality of certain information pursuant to Fed.R.Civ.P. 26 (c). Plaintiff will propose the entry of an order of confidentiality for all medical and financial records of Plaintiff in accordance with the standards set forth in Gillard v. Boulder Valley School District. With respect to discovery disputes, parties must comply with D.C.COLO.LcivR 7.1A.

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The parties filing motions for extension of time or continuances must comply with D.C.COLO.LcivR 6.1D. by submitting proof that a copy of the motion has been served upon the moving attorney's client, all attorneys of record, and all pro se parties. 12. AMENDMENTS TO THE SCHEDULING ORDER The Scheduling Order may be altered or amended only upon a showing of good cause.

DATED this ______ day of ____________________, 2005.

BY THE COURT:

United States Magistrate Judge Boyd N. Boland

SCHEDULING ORDER TENDERED FOR REVIEW: s/ Ronald H. Nemirow Ronald H. Nemirow, Esq. Kennedy Childs & Fogg, P.C. 1050 17th Street, Suite 2500 Denver, Colorado 80265 Telephone: (303) 825-2700 Attorney for Plaintiff

s/ Elliot J. Scott Elliot J. Scott, Esq. SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, Colorado 80290 Telephone: (303) 320-0509 Facsimile: (303) 320-0210 Attorney for Defendants

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