Free Reply to Response to Motion - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-00684-EWN-MEH

JOSEPH STEINBACH, JR. Plaintiff, v. OMNI PROPERTIES, INC, Defendant.

REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OF DEFENDANT OMNI PROPERTIES

Pursuant to Fed. R. Civ. P. 56, Defendant Omni Properties, Inc. ("Omni"), respectfully submits this reply ("Reply") in support of its motion for summary judgment against Plaintiff ("Motion"). I. INTRODUCTION

For purposes of this Motion only, Omni will not dispute that Plaintiff had an objectively reasonable belief that his brother, Jason, qualified for protection under the ADA. Nonetheless, Plaintiff's retaliation claim fails, as a matter of law, because the undisputed facts establish that: (a) Plaintiff did not engage in protected opposition to unlawful discrimination; (b) Plaintiff did not suffer any adverse employment action; and (c) no causal link exists between Plaintiff's alleged employment termination and any such protected activity.

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II.

EVIDENCE OBJECTIONS

Plaintiff's Attachments 3 & 5-8 and certain deposition citations upon which Plaintiff relies are inadmissible and should not be considered by the Court. The legal bases for Omni's objections are addressed in § III of this Reply, infra. Omni further objects that Plaintiff's denials of Omni's undisputed facts and Plaintiff's additional facts are not supported by admissible evidence and/or by specific citations to the record. See § III of this Reply, infra. III. A. Omni's Undisputed Facts 1. Plaintiff's denial of Omni's Statement of Undisputed Facts ("SOF") ¶ 9 is not FACTS

supported by Plaintiff's citation to the Court's Order Memorandum of Decision ("Order"). This Court concluded that Plaintiff accommodated Jason's limitations, to the extent that Plaintiff was aware of those limitations, during the time Plaintiff was Jason's supervisor. Order at 4, 23 & 25. Such conclusion has no bearing upon the Court's conclusion that Plaintiff did not request accommodations on Jason's behalf. 2. Plaintiff's denial of ¶ 16 of Omni's SOF provides no evidence that Plaintiff

engaged in any protected activity or that his alleged employment termination was causally connected to any protected activity. Further, as Plaintiff's denial is not supported by any

citations to the record, it cannot constitute admissible evidence that may be considered by the Court. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985) (the court may only consider admissible evidence in determining a motion for summary judgment); Fed. R. Civ. P. 56.

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3.

Plaintiff's denial of ¶¶ 17 & 18 of Omni's SOF provides no evidence that Plaintiff

engaged in any protected activity or that his alleged employment termination was causally connected to any protected activity. Further, Plaintiff's denial is based on his misrepresentation of the record. Plaintiff misquotes his own deposition testimony by adding punctuation, within the quotation, that does not exist in the deposition transcript: Accardi also stated that she had a "$25 million dollar complex" and sarcastically asked "we have to hire disabled people?" Plaintiff's Response at p. 3 (underline emphasis added). The purported question mark at the end of the quote (underlined above) is not contained in the deposition transcript: And she [Accardi] says, "Well, we've got a $25 million complex and we have to hire disabled people," meaning Jason, and I was upset and--". Plaintiff's Attachment 1 at 196:19-21. Thus, the actual record, on its face, is unambiguous and establishes that Accardi's alleged statement was not a question, sarcastic or otherwise. This fact is further verified by two

subsequent references to the same alleged quote in the deposition of Plaintiff's father, neither of which contains a question mark: A: Well, they-- I guess they had-- on that particular occasion he told me about this list that he wanted to put up for Jason to read, and he told me about that. And then another time Joseph Steinbach told me that the supervisor was there and she made the comment that, like, It was a two to three million dollar operation and we have to hire disabled people. And Diana told Joseph Steinbach to fire Jason, that they didn't want him.

Plaintiff's Attachment 2 at 83:25-84:11 (emphasis added). A: You know, I don't know for sure. But he said--mentioned something about a --Jason's disability, that she didn't--this was, like, a two or three

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million dollar complex, and we have to hire disabled people. And he told me about that. He said that kind of upset him. Id., at 88:1-8 (emphasis added). The depositions of Plaintiff and Plaintiff's father were transcribed by different court reporters (compare Plaintiff's Attachment 1 at p. 1 with Plaintiff's Attachment 2 at p. 1). Thus, to accept Plaintiff's argument, this Court would have to conclude that two court reporters, on three separate occasions, failed to transcribe accurately the testimonies of Plaintiff and Plaintiff's father. Moreover, despite having the opportunity to make changes to their deposition transcripts, neither Plaintiff nor Plaintiff's father made changes to any of the above quotes. The alleged quote also was addressed in the briefs submitted in connection with Omni's motion for summary judgment against Jason. Omni's Motion for Summary Judgment, filed February 1, 2005 ("Jason Motion"), at p. 28, ¶ 111 (citing the above-described quote from Plaintiff's deposition); Response to Defendant's Motion for Summary Judgment, dated March 3, 2005 ("Jason's Response"), at p. 30, ¶ 111 (erroneously alleging that Accardi said she did not want "retarded people" working at her $2 million property); Omni's Reply in Support of Motion for Summary Judgment ("Jason Reply"), filed March 31, 2005, at p. 17, ¶ 111 (replying that "Accardi's exact statement does not include any references to "retarded people" and reflects an accurate statement of Omni's obligations under the law.") Ms. Bangert filed two surreply briefs in connection with the Jason Motion, neither of which asserted that Accardi's alleged statement was a question, or sought to substitute a nonexistent question mark at the end of the quote. The questions Plaintiff was asked immediately following Accardi's alleged statement further confirm that the statement was not a question: "Q: And those are the words she used? A: Yes. Q:

Exactly? A: Yes." Attachment 1 at 196:22-25. 4

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4.

Plaintiff's denial of ¶ 19 of Omni's SOF provides no evidence that Plaintiff

engaged in any protected activity or that his alleged employment termination was causally connected to any protected activity. Further, Plaintiff's denial simply raises a distinction without a difference. Plaintiff contends that it was somehow permissible for him to call his female supervisor a fucking bitch at the end of their conversation, so long as she first commenced their conversation by saying "I don't mean to be an f'n bitch my first day back, but we have--we need to talk about these grounds conditions." Plaintiff's Attachment 1 at 194:24-195:1. 5. Plaintiff's denial of ¶ 20 of Omni's SOF provides no evidence that Plaintiff

engaged in any protected activity or that his alleged employment termination was causally connected to any protected activity. Plaintiff's denial also is not supported by the record

citations upon which he relies, as none of Plaintiff's citations provide any evidence that Accardi ever told Plaintiff "that she did not want a disabled person working at her $25 million complex." See also Reply, supra, at III.A.3. 6. Plaintiff admits ¶ 21 of Omni's SOF, based on his opinion that "Jason was doing

his job." Response at II.B.21. Whether Plaintiff believed Jason was doing his job provides no evidence that Plaintiff engaged in any protected activity or that his alleged employment termination was causally connected to any protected activity. Plaintiff's record citations

conclusively establish that: (a) Accardi was dissatisfied with the appearance of the grounds; (b) Plaintiff's disagreement with Accardi had nothing to do with any disability Jason had, any accommodations Jason requested or required, or Plaintiff's opposition to any unlawful discrimination against Jason; (c) Plaintiff's disagreement with Accardi was expressly based on his opinion that Jason was doing his job and that the groundskeeper job was too big for any one

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person to do; (d) Plaintiff did not put Omni on notice that he was engaging in any protected opposition to unlawful discrimination against Jason; and (e) as Omni did not know that Plaintiff was engaging in any protected opposition to unlawful discrimination against Jason, Omni could not have retaliated against Plaintiff for engaging in any such activity. See Plaintiff's Attachment 1 at 194:1-199:25; 219:4-229:8; see also Response at II.A.21 & p. 22 (admitting that Plaintiff refused to fire Jason "because Plaintiff thought Jason was doing his job" or "because he believed that his brother was doing a good job"); Exhibit A1 at 121:3-19 (additional pages attached hereto). 7. Plaintiff's denial of ¶ 22 of Omni's SOF provides no evidence that Plaintiff

engaged in any protected activity or that his alleged employment termination was causally connected to any protected activity. To the contrary, Plaintiff's citations establish that he never expressed opposition to any unlawful discrimination against Jason, and that his alleged job termination was unrelated to any such protected activity. Plaintiff's denial also is not supported by the record citations upon which he relies, as none of his citations supports his contention that he "was fired after he refused to fire his brother [Jason] because he had a disability." Compare Response at II.A.21 & p. 22 and Plaintiff's Attachment 1 at 193:20-199:25, 219:4-229:8 with Response at II.A.22; Reply, supra, at III.A.3. Plaintiff's citations do establish that Plaintiff "[doesn't] really recall her [Accardi] saying much" after he refused to tell Jason to leave. He simply recalls that he said something else, and she said something else, and then she asked him to leave the property. Attachment 1 at 197:17-24. 8. Omni addresses Plaintiff's denial of ¶¶ 25, 27 & 29-30 of Omni's SOF in the

legal argument section of this Reply, infra, at § IV.

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B.

Plaintiff's Statement of Undisputed Facts 1. Plaintiff's Fact Statement 1 provides no evidence that Plaintiff engaged in any

protected activity or that his alleged employment termination was causally connected to any protected activity. Further, Plaintiff provides no record citation for his immaterial assertion that he planned to retire from Omni. 2. DENY. Plaintiff's Fact Statement 2 is immaterial, irrelevant, and provides no

evidence that Plaintiff engaged in any protected activity or that his alleged employment termination was causally connected to any protected activity. Approximately one month after Jason was terminated from his job with Coors, Plaintiff helped Jason obtain employment with Omni as a groundskeeper and became Jason's supervisor. See Jason Motion at II.A.23; Exhibit A1 at 74:3-18, 75:18-76:10, 77:16-21, 79:1-4, 92:7-13 (additional pages attached hereto). 3. DENY. Plaintiff's Fact Statement 3 is immaterial, irrelevant, and provides no

evidence that Plaintiff engaged in any protected activity or that his alleged employment termination was causally connected to any protected activity. Plaintiff admits that this Court has already determined that Jason was not a qualified individual with a disability under the ADA because he did not demonstrate that he could perform the essential functions of his job. Plaintiff's Response at II.A.1; Motion at I.A.1; Order at 15-21. Thus, Plaintiff's effort to relitigate this issue lacks merit, and Plaintiff's Attachment 3, a December 2000 psychology report relating to Jason, is inadmissible hearsay that lacks foundation and is irrelevant and immaterial. Even if Plaintiff's evidence is deemed admissible, Jason reported to the SSA---while he was employed with Omni---that his termination from Coors [his immediately prior employer] was "because of my disability" and that "I cannot get any work in the past unless a friend or

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relative helps me and trains me because of my disability." Jason Motion at II.A.29. Jason reported to the SSA that he was able to do his job at Omni only because his brother [Plaintiff] was his supervisor. Jason Motion at II.A.32. Jason's father testified that all of Jason's other jobs were obtained through family or close friends and that in prior jobs Plaintiff always worked in tandem with another worker, rather than independently. Id. at II.A.30; Plaintiff's Attachment 2 at 111:10-112:15, 113:14-115:5, 116:19-119:2. 4-7. DENY. Plaintiff's Fact Statements 4-7 are immaterial and irrelevant and provide

no evidence that Plaintiff engaged in any protected activity or that his alleged employment termination was causally connected to any protected activity. Plaintiff admits that this Court has already determined that Plaintiff does not have a complete understanding of Jason's disability. Response at II.A.3; Motion at I.A.3; Order at p. 23. Plaintiff also admits that this Court has already determined that: (a) Omni was never apprised of the nature and extent of Jason's disability by Plaintiff, Jason or Jason's father and, therefore, did not have enough information to trigger any duty to determine an appropriate accommodation (Order at 22-24); (b) Plaintiff, Jason and Jason's father never communicated to Omni that Jason was mentally retarded, was diagnosed with limited intellectual development, was socially phobic, or had an avoidant personality disorder with dependent traits (Order at 23); and (c) Plaintiff told Omni only that Jason had a learning disability that caused him to have trouble reading and writing and trouble retaining too much information, and that Jason needed to do only one task at a time (Order at 46). Response at II.A.5-7; Motion at I.A.5-7; Jason Motion at II.B.48-66. Further, neither Jason nor any of his family members ever used the term "developmental disability" when describing

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Jason's limitations to Omni. Id. Moreover, advising Omni that Jason is "very shy" does not establish Omni was ever advised Jason suffered from social phobia or any other disability. 8. DENY. Plaintiff's Fact Statement 8 provides no evidence that Plaintiff engaged

in any protected activity or that his alleged employment termination was causally connected to any protected activity. Plaintiff admits that this Court has already determined that: (a) Omni did not fail to accommodate Jason's known limitations (Order at 24-25); (b) Plaintiff accommodated Jason's known limitations during the time that he supervised Jason (Order at 25); and (c) the only time Jason's subsequent supervisor, Donovan Vigil ("Vigil"), didn't provide Jason with verbal instructions was when Vigil was busy or "didn't know what to do." (Order at 7). Response at II.A.10-12; Motion at I.C.10-12; Jason Motion at II.C.68-92. Further, Plaintiff has failed to establish that any of his alleged communications with Omni about Jason's known limitations or alleged need for accommodations occurred in proximity to or were causally connected with Plaintiff's alleged employment termination. 9-10. DENY. Plaintiff's Fact Statements 9 & 10 provide no evidence that Plaintiff engaged in any protected activity or that his alleged employment termination was causally connected to any such protected activity. Plaintiff admits that this Court has already determined that Jason was not a qualified individual with a disability under the ADA because he did not demonstrate that he could perform the essential functions of his job. Plaintiff's Response at II.A.1; Motion at I.A.1; Order at 15-21. Thus, Plaintiff's effort to relitigate this issue lacks merit. Moreover, whether Jason received good evaluations, raises or bonuses over six months before his employment was terminated is inadmissible hearsay that is immaterial and irrelevant. Whether Omni's community manager told Jason's father that Jason was doing a good job is

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equally immaterial and irrelevant, and is also inadmissible because it lacks any foundation as to timeframe or a workplace context pertaining to an evaluation of Jason's job performance. Plaintiff's Attachment 7 is inadmissible because it is not sworn, fails to comply with the requirements of a declaration under federal law, lacks foundation, is immaterial and irrelevant, is hearsay, and the questions asked by Jason's counsel are leading. 11. Plaintiff's Fact Statement 11 provides no evidence that Plaintiff engaged in any

protected activity or that his alleged employment termination was causally connected to any such protected activity. Whether Jason received one or more written corrective actions, and whether Plaintiff and Thomas believed Jason's October 2001 written corrective action was ridiculous or unnecessary is immaterial and irrelevant. Moreover, Plaintiff's record citations contain no

evidence that Thomas believed Jason's October 2001 corrective action was ridiculous or unnecessary. Plaintiff's assessment of Thomas' beliefs is inadmissible speculation. 12-15. DENY. See Reply, supra, at § III.A.3. Plaintiff's Fact Statements 12-25 provide no evidence that Plaintiff engaged in any protected activity or that his alleged employment termination was causally connected to any such protected activity. 16-18. DENY. Plaintiff's Fact Statements 16-18 provide no evidence that Plaintiff engaged in any protected activity or that his alleged employment termination was causally connected to any such protected activity. Plaintiff's beliefs about the reasons for his alleged hospitalization are irrelevant and immaterial, and Plaintiff is a lay witness who is not qualified to draw such causal medical connections or provide such medical opinions. Whether Plaintiff had previously become angry with Accardi is immaterial and irrelevant. Likewise, whether Accardi always found problems with the property is immaterial and irrelevant. Plaintiff has testified that

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on the day he left his employment with Omni: (a) he was called to the office to meet with Accardi; (b) Accardi told him, repeatedly, that she was dissatisfied with the appearance of the grounds; (c) he argued with Accardi and did not agree with her alleged decision to terminate Jason, because he felt Jason was doing his job; (d) he told Accardi that no single person could maintain the grounds to her satisfaction; and (e) he ultimately called Accardi a fucking bitch. Plaintiff's Attachment 1 at 194:1-199:25; Response at II.A.21 & p. 22; Reply, supra, at III.A.6. Plaintiff's contention that it was somehow permissible for him to call his female supervisor a fucking bitch at the end of their conversation, so long as she first commenced their conversation by saying "I don't mean to be an f'n bitch my first day back, but we have--we need to talk about these grounds conditions," raises an immaterial distinction without a difference. Id.; Reply, supra, at III.A.4. Plaintiff also has provided no evidence to support his denial of Junkermeier's testimony that, right before Plaintiff went to the office to meet with Accardi, Plaintiff said "what's this fucking bitch want now," and appeared to be angry. Reply, supra at III.A.2. That Accardi and Thomas are employees of Omni does not negate the fact that Plaintiff admits he called Accardi a fucking bitch, that Plaintiff did not engage in any protected opposition to unlawful discrimination, or that Plaintiff cannot establish a causal connection between any such protected activity and his alleged job termination. Similarly, whether Junkermeier was ever disciplined is inadmissible, because it is immaterial, irrelevant, hearsay, and more prejudicial than probative. Moreover, even if deemed otherwise admissible, Plaintiff and Junkermeier are not similarly situated, as Accardi did not supervise Junkermeier (his supervisor was Max Cooper, a male), and Junkermeier was disciplined for actions that took place at different properties than where Plaintiff worked. Plaintiff's Attachment 10 at 3:1-5:24.

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IV. A. Summary Judgment Standard

ARGUMENT

To avoid summary judgment, the nonmoving party must designate "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see Fed. R. Civ. P. 56(e). "Only disputes over facts that might affect the outcome of the suit under governing law will preclude the entry of summary judgment." Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir. 1998). The moving party is entitled to judgment as a matter of law where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). In ruling on a motion for summary judgment, the Court may consider only admissible evidence. Fed. R. Civ. P. 56; World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). B. Plaintiff Has Not Established a Retaliation Claim Plaintiff's retaliation claim fails, as a matter of law, because the undisputed facts establish that: (a) Plaintiff did not engage in protected activity in opposition to discrimination; (b) Plaintiff did not suffer any adverse employment action; and (c) no causal link exists between Plaintiff's alleged employment termination and any such protected activity. Selenke v. Medical Imaging of Colo., 248 F.3d 1249, 12664-66 (10th Cir. 2001); Petersen v. Utah Department of Corrections, 301 F.3d 1182, 1188 (10th Cir. 2002); Stover v. Martinez, 382 F.3d 1064, 1071 (10th Cir. 2004). As Plaintiff has failed to establish a prima facie case of retaliation, the burden

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of production does not shift to Omni to articulate a nondiscriminatory reason for Plaintiff's alleged employment termination. Selenke, 248 F.3d at 1264. 1. Plaintiff did not engage in protected activity

To establish a claim of retaliation, it is crucial that the employer knows the plaintiff was engaging in protected opposition to discrimination against another employee. Petersen, 301 F.3d at 1188-89. In short, "an employer cannot engage in unlawful retaliation if it does not know that the employee has opposed or is opposing [unlawful discrimination]." Id. at 1188. Here, Plaintiff did not provide any information to Accardi from which she could have known that he was opposing unlawful disability discrimination against Jason. To the contrary, Plaintiff's only stated reasons for refusing to terminate Jason's employment were his opinion that Jason was doing his job and that the job was too big for any one person to accomplish. Thus, Plaintiff has failed to establish that he opposed disability discrimination against Jason, or that he notified Omni of his opposition to any such disability discrimination against Jason. Viewing the facts in the light most favorable to Plaintiff, Plaintiff advised Omni only that Jason had a disability, had trouble reading and writing, and sometimes had trouble remembering things. None of these communications opposed unlawful discrimination against Jason, or

included any statements of opposition to unlawful discrimination against Jason. Rather, they simply provided information to Omni about Jason's known limitations. Thus, such

communications with Omni failed to place Omni on notice that Plaintiff was opposing unlawful disability discrimination against Jason. Further, none of Plaintiff's communications with Omni about Jason's disability or limitations occurred in proximity to Plaintiff's alleged employment

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termination and, therefore, were too remote in time to have played a role in Accardi's motivations at the time of Plaintiff's alleged job termination. Similarly, Plaintiff did not engage in any protected activity in opposition to unlawful disability discrimination against Jason at the time of Plaintiff's alleged employment termination on September 24, 2002. Plaintiff never advised Accardi that he opposed her alleged decision to terminate Jason's employment because he believed it was discriminatory. Plaintiff did not tell Accardi that he believed Jason was being terminated because of his disability, or that Jason could not do the job to her level of satisfaction because he was disabled or because he required an accommodation. Instead, Plaintiff merely expressed disagreement with Accardi's alleged

decision to terminate Jason's employment based on his opinion that Jason was doing his job. In fact, Plaintiff admits that his reason for not carrying out Accardi's alleged order to fire Jason was that he believed Jason was doing his job. Response at II.A.21 & p. 22. Plaintiff also argued with Accardi about the grounds conditions and the number of groundskeepers he felt were needed to maintain the property in the condition she wanted it to be maintained, advising her "There is no way one person can keep this property clean to your--to your standards that you want done. . . . It's just impossible." When Accardi refused to hire any additional groundskeepers, Plaintiff told her he would do the best he could, but what she was asking was "totally ridiculous." Accardi then reminded Plaintiff that the owners were coming out to the property and he told her he understood, but "kept saying, "One person can't just do this job alone." All Plaintiff can remember about the conversation is that he and Accardi "were just kind of arguing back and forth about what job can be done, you know. What she was asking was you know, wasn't really possible. . . ." Exhibit A1 at 197:6-12.

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After his meeting with Accardi, Plaintiff phoned the property owner, Greg Gulley, to "talk to him about the situation." Plaintiff's Attachment 1 at 198:2-22. Significantly, Plaintiff did not tell Mr. Gulley that his refusal to discharge Jason was in opposition to unlawful discrimination against Jason. Id. Further, Plaintiff advised Mr. Gulley that "Accardi told me to leave and, you know, I don't know why other than, you know, she wanted me to ask Jason to leave and I wasn't going to do that." Id. at 198:12-15. Thus, the undisputed evidence establishes that, at the time of Plaintiff's alleged employment termination: (a) Accardi told Plaintiff, repeatedly, that she was dissatisfied with the appearance of the grounds; (b) Plaintiff argued with Accardi and disagreed with her alleged decision to terminate Jason, based on his expressed opinion that Jason was doing his job; (c) Plaintiff also told Accardi that the job was too big for any one person to do to her satisfaction; and (d) Plaintiff ultimately called Accardi a fucking bitch. Plaintiff's Attachment 1 at 194:1199:25; Response at II.A.21 & p. 22. None of these facts establishes that Plaintiff ever opposed unlawful disability discrimination against Jason, or put Omni on notice that he was opposing any such discrimination. This case is factually similar to the Petersen case. There, as here, the plaintiff never communicated her concern about unlawful discrimination when she refused to cooperate in the evaluation of a co-worker and complained about the co-worker's treatment by supervisors. Id. at 1188-89. Based on the absence of any mention by the plaintiff that she was opposing unlawful discrimination, the Tenth Circuit concluded that no retaliation for opposing unlawful discrimination occurred, or could have occurred. Id. The Court concluded that the statutory purpose of encouraging opposition to discrimination "is hardly served by imposing sanctions

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upon employers who take action against employees who never communicated their concern about unlawful discrimination." Id. at 1189. Plaintiff's reliance on the alleged "$25 million dollar" statement by Accardi is misplaced. First, Accardi's alleged statement, as it exists in the actual record, reflects an accurate statement of Omni's obligation under the law not to discriminate against the disabled. Second, even assuming arguendo that Accardi's statement was followed by a question mark, the statement does not alter the fact that Plaintiff's admitted reason for opposing Accardi's alleged decision to terminate Jason's employment was that he believed Jason was doing his job. Thus, Plaintiff's reason for opposing Accardi's decision was unrelated to any disability Jason had, any accommodations Jason requested or required, or any opposition to unlawful discrimination against Jason. In fact, Plaintiff also opined that the job was too big for any one person to accomplish to Accardi's satisfaction. Thus, Plaintiff believed that even a super-groundskeeper, not disabled in any way, would have been unable to maintain the grounds to Accardi's satisfaction. Based on the foregoing, the undisputed evidence establishes that Plaintiff did not engage in any protected activity in opposition to unlawful disability discrimination against Jason. As such, no genuine issues of material fact exist on this element of Plaintiff's prima facie case of retaliation and Omni is, therefore, entitled to summary judgment as a matter of law. 2. Plaintiff has failed to establish that he suffered an adverse employment action

An adverse employment action must amount to "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or . . . causing a significant change in benefits." Stover, 382 F.3d at 1071. "An 16

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adverse employment action is an ultimate employment decision, such as discharge or failure to hire, or other conduct that alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee." Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000). "Conduct that falls short of an ultimate employment decision must meet `some threshold level of substantiality" to be cognizable retaliation." Id. Viewing the facts in the light most favorable to Plaintiff, the undisputed evidence establishes that Plaintiff suffered no adverse employment action. Omni did not terminate

Plaintiff' employment. Plaintiff's evidence in support of his claim that Omni terminated his employment consists solely of his own deposition testimony, plus inadmissible double hearsay testimony from his father's deposition that recounts statements Plaintiff made to his father about what Accardi said to Plaintiff. Response at II.A.17-22 & II.B.12-15; Plaintiff's Attachment 1 at 193:20-199:25; 219:4-229:8; Plaintiff's Attachment 2 at 84:3-86:22, 88:3-14. Even accepting Plaintiff's proffered evidence as true, that evidence reveals Accardi, at no time, fired Plaintiff from his employment with Omni. Rather, after Plaintiff engaged in a heated, escalating argument with Accardi regarding the condition of the grounds and Plaintiff's refusal to fire Jason because he believed Jason was doing his job, Accardi said, "Well, I want you to leave the property right now. You are not welcome back here." Attachment 1 at 193:20-19724. Plaintiff then called Accardi a fucking bitch, walked out, collected his tools, and left the property. Id. at 197:24-199:25. Significantly, when Plaintiff spoke, thereafter, with Mr. Gulley

"about the situation," he never told Mr. Gulley that Accardi had fired him. See Id. at 198:2-22.

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Based on the foregoing, the undisputed evidence establishes that Plaintiff did not suffer an adverse employment action. As such, no genuine issues of material fact exist on this element of Plaintiff's prima facie case of retaliation and Omni is, therefore, entitled to summary judgment as a matter of law. 3. Plaintiff has failed to establish a causal link between any protected activity and his alleged employment termination

Assuming arguendo that Plaintiff could establish that he engaged in protected opposition to unlawful disability discrimination against Jason and suffered an adverse employment action, Plaintiff has established no causal link between any such protected activity and his alleged employment termination on September 24, 2002. Viewing the evidence in the light most

favorable to Plaintiff, Plaintiff's argument with Accardi concerned problems with the grounds. Plaintiff admits that he refused Accardi's alleged order to fire Jason, based on his opinion that Jason was doing his job. Plaintiff also argued with Accardi about his opinion that the

groundskeeper job required more than one worker. Thus, Plaintiff's disagreement with Accardi was not based on any disability Jason had, any accommodation Jason requested or required, or Plaintiff's expressed opposition to unlawful discrimination against Jason. Plaintiff also has failed to present any evidence that establishes a causal connection between his alleged job termination in September 2002, and any prior statements or conduct in opposition to unlawful discrimination against Jason. No such statements or conduct exists. Moreover, any such conduct or statements are too remote in time to establish a causal link. Toth v. Gates Rubber Co., 216 F.3d 1088 (10th Cir. 2000) (causal link found where poor performance evaluations started two days after plaintiff filed an EEOC charge); see also Nguyen v. Cleveland,

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229 F.3d 559 (6th Cir. 2000) (no causal link found even though adverse action occurred in close time proximity to a protected activity). As the undisputed evidence establishes that no causal link exists between Plaintiff's alleged job termination and any protected activity in opposition to unlawful disability discrimination against Jason, no genuine issues of material fact exist on this element of Plaintiff's prima facie case of retaliation and Omni is, therefore, entitled to summary judgment as a matter of law. C. Law of the Case and Collateral Estoppel The law of the case doctrine "applies to issues previously decided, either explicitly or by necessary implication" in the same litigation. In re Integra Realty Resources, Inc., 354 F.3d

1246, 1258-59 (10th Cir. 2004); Dodge v. Cotter Corp., 203 F.3d 1190, 1197-98 (10th Cir. 2000). This case and Jason's case were consolidated for discovery and Plaintiff admits that the cases would have been tried together, before one jury, as a single trial, but for this Court's entry of summary judgment against Jason. Response at II.B.24; Motion at IV.24. Thus, Plaintiff and Jason are codefendants in the same litigation. Where, as here, "a rule of law has been decided adversely to one or more codefendants, the law of the case doctrine precludes all other codefendants from relitigating the legal issue." Integra, 354 F.3d at 1259. It is nonsensical for Plaintiff to argue that the he and Jason do not share a joint defense strategy, when he and Jason have shared the same legal counsel throughout these proceedings, have been jointly represented at all depositions, for all discovery, and for all substantive motions by the same attorney, and would have been jointly represented by the same counsel at a consolidated trial, but for the Court's summary disposition of Jason's claims. Moreover,

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Plaintiff's assertion that he and Jason "generally" filed separate responses to motions (Response at II.A.27) concedes that sometimes they did not. Plaintiff claims the issues that relate to his claims differ from those that relate to Jason's claims. Yet, in his Response, Plaintiff offers evidence that directly relates to facts and issues already determined and decided by this Court, rather than relying on the Court's Order regarding such facts and issues. Plaintiff's effort in this regard demonstrates that facts and issues already decided in Jason's case also relate to Plaintiff's case. In the alternative, the collateral estoppel doctrine applies. Collateral estoppel applies where, as here: (1) issues previously decided are identical to issues presented in the instant case; (2) the prior action was finally adjudicated on the merits; (3) the party against whom the doctrine is invoked was a party, or was in privity with a party, to the prior adjudication; and (4) the party against whom the doctrine is invoked had a full and fair opportunity to litigate the issue in the prior adjudication. Dodge, 203 F.3d at 1197-98. Collateral estoppel serves the interests of judicial economy by preventing the relitigation of issues already decided. Dodge at 1198. Moreover, a trial court has "broad discretion" to eliminate the mutuality requirement of collateral estoppel. Id. As addressed above, many of the facts and issues that relate to Plaintiff's claims also relate to Jason's claims. Plaintiff's contention that he and Jason are not in privity---despite their joint representation throughout these proceedings, their joint meetings and discussions with their joint counsel during depositions and for settlement discussions, and their joint filing of pleadings---lacks merit. Given the joint defense of both cases, Plaintiff's contention that he was

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denied a full and fair opportunity to litigate the issues decided in the Court's Order is equally meritless. Assuming arguendo that the collateral estoppel and law of the case doctrines do not apply, there is no rational basis for the Court to rule differently here on the same issues already decided in the Order. Based on the facts and law addressed in Omni's Jason Motion and Jason Reply, and Jason's Response, this Court has already decided the issues addressed in the Order. No evidence submitted in the Motion, Response or this Reply warrants any contrary rulings. Moreover, rendering a conflicting decision here on the same issues would result in confusion and judicial inconsistency. Plaintiff's assertion that relitigating the issues decided in the Court's Order does not have the potential to result in confusion and judicial inconsistency lacks any viable rationale. V. CONCLUSION

Based on the foregoing, no genuine issues of material fact exist and Omni is entitled to summary judgment, as a matter of law, because Plaintiff has not established a prima facie case of retaliation. Plaintiff has not established that: (1) he engaged in protected activity in opposition to unlawful discrimination against Jason; (2) he suffered an adverse employment action; or (3) a causal link exists between any protected activity and his alleged employment termination. WHEREFORE, Omni respectfully requests that this Court: 1. Enter judgment against Plaintiff and in favor of Omni on Plaintiff's sole claim for retaliation under the ADA; and Award Omni such other and further relief as the Court deems just and proper, including but not limited to an award of Omni's attorneys' fees and costs.

2.

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Dated: March 22, 2006. s/Colleen M. Rea Colleen M. Rea, Esq. #024960 FORD & HARRISON LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone: (303) 592-8860 Facsimile: (303) 592-8861 E-mail: [email protected] ATTORNEYS FOR DEFENDANT OMNI PROPERTIES, INC.

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 22, 2006, I electronically filed the foregoing REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OF DEFENDANT OMNI PROPERTIES using the CM/ECF system, which will send notification of such filing to the following e-mail addressee: Patricia S. Bangert, Esq. [email protected] Also e-mailed to Patricia S. Bangert, Esq. at: [email protected]

s/Colleen M. Rea Colleen M. Rea, Esq. #024960 FORD & HARRISON LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone: (303) 592-8860 Facsimile: (303) 592-8861 E-mail: [email protected]
Denver:11085.1

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