Free Response to Motion - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No: 04-cv-0684-EWN-OES

JOSEPH STEINBACH, JR., Plaintiff, v. OMNI PROPERTIES, Defendant. ______________________________________________________________________________ PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Plaintiff, Joseph Steinbach, by and through his undersigned attorney, respectfully files this response to defendant's motion for summary judgment. I. INTRODUCTION AND BACKGROUND Joseph Steinbach was the maintenance supervisor for Omni Properties at Kimberly Woods Apartments for approximately ten years. From all accounts, he was a good maintenance supervisor. Mr. Steinbach intended to retire from his job with Defendant Omni Properties (also referred to as "Omni"). In 2000, Omni hired Joseph's brother, Jason Steinbach, to be the groundskeeper for the apartment complex. Jason is a disabled man, having been diagnosed as "mentally retarded." With accommodations, Jason as able to perform the essential duties of the groundskeeper job. The District Manager for Omni, however, did not want "retarded people" working at her "$25 million complex." Diana Accardi, the District Manager, pressured Joseph so much to fire Jason that, on one occasion, Joseph ended up in the hospital with an apparent heart attack. On September 24,

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2002, Accardi fired Plaintiff because he refused to terminate Jason. Jason Steinbach brought suit against Omni (Case No. 04-cv-00684). Joseph Steinbach brought the instant case. The District Court granted Defendant summary judgment in Jason Steinbach's case. Defendant now attempts to shortcut the judicial process by erroneously applying the findings in that separate and distinct case to this matter. Because the issues in the two cases are different and the parties are different, the findings in Jason Steinbach's case are not properly applied to this case. In any event, there is sufficient evidence in the record to establish a prima facie case of retaliation against Joseph Steinbach for opposing disability discrimination. At there very least, there is sufficient evidence to create genuine disputes of material fact that warrant denial of Defendant's motion for summary judgment. II. RESPONSE TO DEFENDANTS STATEMENT OF UNDISPUTED MATERIAL FACTS Plaintiff responds as follows to each of defendant's statements of undisputed material facts. A. RESPONSE TO DEFENDANT'S "UNDISPUTED FACTS ESTABLISHING THAT PLAINTIFF DID NOT ENGAGE IN PROTECTED ACTIVITY " 1. 2. Admit. Deny. The Court found that Plaintiff does not have a complete understanding of

Jason Steinbach's disability. The Court quoted from Plaintiff's deposition in which Plaintiff said that he knew that Jason had a disability that affected his reading, memory and ability to retain a lot of information. Order, at p.4. 3-7. 8. Admit. Deny. The Court did not conclusively find that Omni received no requests for

accommodation. Order, at 25. 2

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9.

Deny.

The Court determined that Plaintiff accommodated Jason Steinbach's

disabilities. Order, at 25. 10-12. Admit. B. RESPONSE TO DEFENDANT'S "UNDISPUTED FACTS ESTABLISHING THAT OMNI TOOK NO ADVERSE EMPLOYMENT ACTION AGAINST PLAINTIFF" 13-14. Admit. 15. Thomas. 16. Deny. Plaintiff has insufficient information to know what was said between Accardi and

17-18. Deny. The topic of discussion was Accardi's desire to terminate Jason Steinbach. Attachment 1 [Transcript of Deposition of Joseph Steinbach, Jr.], at 193:20 - 198:4. During the discussion, Accardi stated that the grounds were unacceptable, but Plaintiff disagreed. Id. Accardi also stated that she had a "$25 million dollar complex" and sarcastically asked "we have to hire disabled people?" Id. at 196:19-21. When Plaintiff refused to fire Jason, Accardi told him to leave the property. Plaintiff testified about the incident: A. Pretty much, yes. I don't really recall her saying much after I refused to, you know, tell Jason to leave. She says, "If you can't do it, we'll get somebody else to," and, you know, I just, okay, you know. She said somebody else and I said something and she said, "Well, I want you to leave the property right now. You are not welcome back here." Id. at 197:17-24. 19. Deny. Plaintiff only repeated a phrase that Diana Accardi had used about herself

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earlier in their conversation, i.e. Accardi said "I do not want to be a fucking bitch, but...." Atch. 1, at 194:3-199:25. After Plaintiff was fired, he said words to the effect that "You said that you do not want to be a fucking bitch, but you are." Id. Mr. Steinbach believed he was doing the right thing in refusing to fire Jason. Id. 20. Deny. Ms. Accardi had told Plaintiff on numerous occasions that she did not want

a disabled person working on her $25 million complex. Atch. 1, at 219:4 - 229:8. 21. 22. Admit. Plaintiff thought that Jason was doing his job. Atch. 1, at 194:3-199:25.

Deny. Plaintiff did not quit his job; but, rather, was fired after he refused to fire his

brother because he had a disability. Atch. 1, at 194:3-199:25. Specifically, when Plaintiff refused to fire Jason Steinbach, Accardi told him to leave the property. Plaintiff testified about the incident: A. Pretty much, yes. I don't really recall her saying much after I refused to, you know, tell Jason to leave. She says, "If you can't do it, we'll get somebody else to," and, you know, I just, okay, you know. She said somebody else and I said something and she said, "Well, I want you to leave the property right now. You are not welcome back here." Id. at 197:17-24. 23. 24. 25. Needs no response. Admit. Deny. While it is unclear what Defendant is saying here, the issues decided in the

Order are different from the issues to be decided here. The primary issue in 04-cv-685 is whether Omni violated the ADA by terminating Jason Steinbach because of his disability. See Defendant's Motion for Summary Judgment, and Response to Omni's Motion for Summary Judgment in 04-cv4

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685. The issues contained therein are: (i) whether Jason Steinbach was disabled; (ii) whether he could perform the essential functions of his job; and (iii) whether he was terminated because of his disability. Id. The primary issue in this case is whether Joseph Steinbach had a reasonable good faith believe that the ADA was violated, involving sub-issues of (i) whether Joseph Steinbach engaged in a protected activity; (ii) whether Joseph Steinbach was subject to an adverse action; and (iii) whether there was a casual relation between the opposition to discrimination and the termination. 26. 27. Admit. Deny. Jason Steinbach and Plaintiff have generally filed separate responses to

motions in this case because their legal theories are different. See Court record in both cases, generally. Although some facts are the same in both cases, there are also different facts applicable in each case. Id. Jason Steinbach and Plaintiff Joseph Steinbach are plaintiffs in separate cases and have not presented a "joint defense strategy against Omni." Id. 28. itself. 29. Deny. Plaintiff was not a party or in legal privity with a party in 04-cv-685 (Jason The Response to Omni's Motion for Summary Judgment in 04-cv-685 speaks for

Steinbach v. Omni Properties). 30. Deny. Plaintiff was not a party or in legal privity with a party in 04-cv-685 (Jason

Steinbach v. Omni Properties) and, therefore, did not have a full and fair opportunity to litigate the issues in that case, and did not even attempt to do so.

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III PLAINTIFF'S STATEMENT OF ADDITIONAL UNDISPUTED FACTS Plaintiff offers the following additional disputed facts: 1. When he was terminated on September 24, 2002, Joseph Steinbach had worked for

Omni Properties for ten years. Atch. 1, at 67:6-9. He planned to retire from Omni Properties. 2. Plaintiff, Joseph Steinbach, Jr., referred Jason Steinbach to the then Community

Manager, Hope Kindler-Smith, for the job of groundskeeper. Atch. 1, at 78:20-79:4. Ms. KindlerSmith interviewed Jason Steinbach, and referred him to LMC for pre-hiring process. Id. 3. Jason Steinbach had several jobs before being hired by Omni, as follows: a. Jason Steinbach worked as a helper installing garage doors for three or four years, and was laid off only when the company downsized after the owner became a Denver police officer. Attachment 2 [Transcript of Deposition of Joseph Steinbach, Sr.], at 79:8-81:3, 111:1-119:10. b. Jason Steinbach worked at a construction company (Precision Heating) for two years installing heating duct work; and was laid off after the company moved to Greeley. Atch. 2, at 79:8-81:3, 111:1-119:10. c. Jason Steinbach worked at a fire extinguisher company (Pioneer), until it became necessary to read blueprints. Atch. 2, at 79:8-81:3, 111:1-119:10. d. Jason Steinbach worked in a merchandiser job at FRBC from September of 1997 until May of 1999, after FRBC was sold to Coors. Attachment 3 [Mead Report], at p. 2. In that job, Jason drove to liquor stores, set up displays, hung banners and signs, and stocked coolers with beer. Id. Jason

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assisted a salesperson for the first three weeks of his employment; and then was on his own. Id. During the next six months, he required assistance in finding some stores. Id. After that, Jason worked on his own without incident until May 28, 1999. Id. The owner of FRBC and the salesperson both told Jason that he was doing a good job. Id. 4. Plaintiff and his family have a lay person's understanding of the nature and scope of

Jason Steinbach's disability. Attachment 4 [Transcript of Deposition of Jason Steinbach], at 37:614; Atch. 1, at 97:17-98:2; 278:9-14; Atch. 2, at 18:10-19:12; 21:25-23:5. They do not have a physician's understanding of the nature and scope of the disability. Id. They all understand that Jason Steinbach has a learning disability that limits his reading, writing, ability to retain information, and ability to do more than one task at a time. Id. 5. Plaintiff, Joseph Steinbach, and Jason Steinbach's father repeatedly identified for

Omni the nature and extent of Jason's disabilities. Atch. 1, at 93:12-94:5; 100:1-101:6; 102:18105:4; 115:5-116:24; 263:9-22, 291:9-293:5; 295:1-21; Atch. 4, at 35:7-36:24; 47:22-49:13; Atch. 2, at 71:4-74:3, 75:21-77:24, 157:3-16. Those discussions included the fact that Jason's

developmental disability (also described as a learning disability) limited his ability to read, write, retain information or do more than one task at a time, which resulted in a need for verbal instructions, one task at a time, hands on training and retraining when necessary. Atch. 1, at 93:1294:5; 100:1-101:6; 102:18-105:4; 115:5-116:24; 263:9-22, 291:9-293:5; 295:1-21; 368:14 - 376:10. Jason Steinbach's father also told Omni officials that Jason is "very shy." Atch. 2, at 157:3-16. 6. Plaintiff, Joseph Steinbach, Jr., discussed Jason's disability with Hope Kindler-Smith,

as well as with Michelle Thomas, the later Community Manager, and Diana Accardi, the District 7

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Manager, and told the Omni officials that Jason's developmental disability limited his ability to read, write, retain information or do more than one task at a time, which resulted in a need for verbal instructions, one task at a time, hands on training and retraining when necessary. Atch. 1, at 93:1294:5; 100:1-101:6; 102:18-105:4; 115:5-116:24; 263:9-22, 291:9-293:5; 295:1-21; 368:14 - 376:10. 7. Jason Steinbach's father, with Plaintiff in attendance, informed Omni about his son's

disabilities to the extent of his layman's understanding of them. Atch. 2, at 71:4-74:3, 75:21-77:24, 157:3-16. The substance of the conversation between Jason's father and Hope Kindler-Smith was as follows: A. Well, the substance is what -- they agreed to hire Jason, knowing that he had a disability. And the discussion was if there was any problem, that Jason would have to give -- myself and Jason or anybody else that would help him to correct it. If they could not corrected, then Jason would just voluntarily quit. Q. And who made those statements? A. Well, Jason. Jason was right with me. He said he really wants the job, and he'll do whatever they ask him to do. And I actually brought up the situation that Jason and I discussed before, that if he just can't do it, then he'll just have to quit; and just to give him the opportunity. Q. Did you tell -- during that conversation did you tell them that Jason had a disability? A. Yes. Q. What disability did you tell them that he had? 8

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A. I told them he would have to have verbal instructions and he would have to have instructions, you know, for new tasks. That's basically what we talked about. And I think the gal that I talked to, she said, Hey, that's no problem, just as long as he comes to work when he's supposed to, you know, we'll train him. And that's no problem. And to Joe, he was glad to have Jason because they were having problems, I guess, getting anybody that would last very long. And it was a good opportunity for them too, as well as Jason. Atch. 2, at 71:4-74:3; 75:21-77:24, 157:3-16. 8. Plaintiff, Joseph Steinbach, Jr, discussed accommodations needed by Jason, and

those he provided to Jason, with Ms. Kindler-Smith, and later with Ms. Thomas and Ms. Accardi, including (a) the provision of verbal instructions, (b) the provision of one task at a time, (c) hands-on training and retraining when necessary, and (d) the use of a color-coded map. Atch. 1, at 93:12-94:5; 100:20-101:6; 102:18-105:4; 115:5-116:24; 263:9-22; 291:9-293:5; 295:1-21;368:14 - 376:10; Atch. 2, at 71:4-74:3, 75:21-24; Atch. 4, at 47:22-51:12; 134:10-135:16. Plaintiff told Hope Kindler-Smith that Jason Steinbach needed accommodations; for example, that he could not remember too many things at one time. Atch. 1, at 100:20-101:6. Plaintiff also told Hope KindlerSmith, as well as with Michelle Thomas, the Community Manager, and Diana Accardi, the District Manager, that Jason's disability included limited ability to read, write, retain information or do more than one task at a time, which resulted in a need for verbal instructions, one task at a time, hands on training and retraining when necessary. Atch. 1, at 93:12-94:5; 100:20-101:6; 102:18-105:4; 115:5116:24; 263:9-22; 291:9-293:5; 295:1-21;368:14 - 376:10. 9. Jason Steinbach's performance as a groundskeeper was good, as evidenced by the 9

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facts that: a. Mr. Steinbach's evaluations were good. See Attachment 5 [Evaluation done in December of 2002]. b. Mr. Steinbach was given raises on 1/1/01; 4/20/01, 1/1/02, and 1/1/03. See Attachment 6 [Raise documents]. c. Mr. Steinbach received several bonuses each year that he was with Omni. See Attachment 7 [Affidavit of Jason Steinbach]. Bonuses were given on the basis of performance. See Attachment 8 [Bonus Plan]. 10. Omni made an admission that Jason Steinbach was doing a good job as a

groundskeeper, when the Community Manager told his father that she really liked Jason and that he was doing a good job. Atch. 2, at 66:12-68:19. 11. One corrective action in October of 2001 ­ which was ordered by Diana Accardi ­

was the only counseling that was ever done with Jason Steinbach. Atch. 4, at 43:16-44:10; 118:20119:19; Atch. 1, at 165:7-20; 432:21-436:20. Both Joseph Steinbach and the Community Manager, Michelle Thomas, believed that the corrective action was "ridiculous" and unnecessary. Atch. 1, at 172:14-173:7; 174:5-23; 306:13-307:17. 12. Plaintiff was told many times by Diana Accardi that she wanted him to get rid of

Jason Steinbach, and, on one occasion, Accardi told him that she did not want disabled people working at her multi-million dollar complex. Atch. 1, at 219:4 - 229:8; 248:1-7; Atch. 2, at 84:386:22, 88:3-14. Ms. Accardi put Plaintiff under so much stress concerning the termination of his brother that he went to the hospital with an apparent heart attack, which turned out to be job-related stress. Atch. 1, at 428:18-432:13. 10

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13.

On September 24, 2001, Accardi called Plaintiff to the Community Manager's office

to order him to fire his brother. Atch. 1, at 194:3-199:25. 14. Plaintiff did not quit his job; but, rather, was fired after he refused to fire his brother

because he had a disability. Atch. 1, at 194:3-199:25. Further, Plaintiff did not swear at Accardi, but merely repeated a phrase that Diana Accardi had used about herself earlier in their conversation, i.e. Accardi said "I do not want to be a fucking bitch, but...." Id. After Plaintiff was fired, he said words to the effect that "You said that you do not want to be a fucking bitch, but you are." Id. 15. 199:25. 16. The Community Manager testified that she had never seen Joseph Steinbach get irate Plaintiff was told to leave the office immediately after he was fired. Atch. 1, at 194:3-

with the District Manager in the manner alleged by Omni. Attachment 9 [Transcript of deposition of Michelle Thomas], at 76:14 - 78:15. In fact, Ms. Thomas said that every time that Accardi came to the property, she found something wrong. Id. However, she said, Plaintiff had never gotten mad at Accardi on any of these other occasions, always simply saying that he would take care of any problems she mentioned. Id. 17. The people testifying that Plaintiff resigned and swore at Accardi are Diana Accardi

and Michelle Thomas, two people who are still employees of Omni. In fact, Michelle Thomas was promoted to District Manager of a then unidentified area several days before her deposition testimony in this matter. Atch. 9, at 50:19 - 51:7. 18. The employee testifying that Steinbach had been angry prior to going to the office has

been disciplined for drinking on the job and using foul language. Attachment 10 [Transcript of Deposition of ________], at 3:1-4:24 [Confidential] [separately filed]. 11

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IV. ARGUMENT A. SUMMARY JUDGMENT STANDARD The grant of summary judgment is an extraordinary action by the Court. This Court has instructed that summary judgment "motions are not appropriate in every action. Indeed, it is the rare case where a Rule 56 motion should be filed." In re Ribozyme Pharm., Inc., Sec. Litig., 209 F.Supp.2nd 1106, 1109 (D. Colo. 2002) (emphasis added). That is because our civil legal system favors resolution of factual disputes through live testimony at trial; entry of judgment in summary fashion on documentary evidence without a trial contravenes that process. Id. Thus, Defendant bears the "substantial" burden of establishing that no material issues of fact remain in dispute which would defeat summary judgment. See Eastman Kodak Co. v. Image Tech. Servs., 504 U.S. 451, 469 (1992); Lawmaster v. Ward, 125 F.3d at 1347; Foote v. Spiegel, 118 F.3d 1416, 1424 (10th Cir. 1997); Mick v. Brewer, 76 F.3d 1127, 1133 (10th Cir. 1996). On summary judgment, the "fundamental issue is whether ... there are material factual issues to be resolved" necessitating a trial. Ribozyme, 209 F.Supp.2nd at 1109 Answering that question requires a twostep analysis. First, under Rule 56©, the Court must determine whether there exists a "genuine" dispute as to any "material" fact.1 If so, the motion must be denied; only if all material facts are undisputed can the Court go on to the second step of applying the law to those facts and entering a judgment. Id. & n.7. In addition, in making a determination regarding summary judgment, the Court must view
1

A fact is "material" if, under governing substantive law, it could affect disposition of a claim. A dispute is "genuine" if the evidence is such that a jury could reasonably return a verdict in favor of either party on that point. Id. at 1109-10 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 12

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the facts and evidence most favorably to Mr. Steinbach. Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998). Thus, "[t]he evidence of [Mr. Steinbach, as] the non-movant is to be believed and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); accord Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir. 1988); see In re Ribozyme Pharm., Inc., Sec. Litig., 209 F.Supp.2nd at 1113. "[Mr. Steinbach's] version of any disputed issue of fact thus is presumed correct ...." Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992) (emphasis added). Summary judgment then may not be granted against Mr. Steinbach on any claim unless there exist no "genuine" issue as to any "material" fact relating to it and defendant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). In order to grant summary judgment against Mr. Steinbach on a claim the evidence must be such that no fair-minded jury could reasonably find for Mr. Steinbach on it and defendant would be entitled to a directed verdict at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 251-52; see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A verdict cannot be directed, and summary judgment therefore cannot be entered, "[i]f reasonable minds can differ as to the import or the weight of the evidence." Ribozyme, 209 F.Supp.2nd at 1110 Here, as demonstrated infra, there are numerous genuine disputes of material facts that should be decided by a jury. In addition, Mr. Steinbach presented sufficient, competent evidence to establish prima facie each offense element of the claim he has asserted. That creates ­ at the very least ­ a genuine dispute for trial regarding his claim, thus necessitating denial of defendant's motion. See id. at 1111-12, 1114. B. THERE IS SUFFICIENT EVIDENCE TO ESTABLISH A PRIMA FACIE CASE OF RETALIATION The Americans with Disabilities Act ("ADA") prohibits retaliation against individuals who 13

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champion the rights of persons with disabilities by opposing discrimination against them. See 42 U.S.C. §12203(b). Under the ADA, a person must prove the following elements in order to establish a prima facie case of retaliation: (1) that he engaged in an activity protected by the statute; (2) that he was subjected to an adverse employment action subsequent to or contemporaneous with the protected activity; and (3) that there was a causal connection between the protected activity and the adverse action. Selenke v. Medical Imaging of Colo, 248 F.3d 1249, 1264 (10th Cir. 2001). As with claims for discriminatory discharge, if the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a nondiscriminatory reason for the adverse employment action. If the employer satisfies this burden of production, then, in order to prevail on her retaliation claim, the plaintiff must prove that the employer's articulated reason for the adverse action "is pretextual, i.e. unworthy of belief." Id. 1. Joseph Steinbach Was Engaged in an Activity Protected by the ADA

To meet the first element of a retaliation claim, the person opposing discrimination must have "a reasonable, good faith belief that the statute has been violated..." Selenke, 248 F.3d at 1264, citing to Standard v. A.B.E.L Servs., Inc., 161 F.3d 1318, 1328 (11th Cir.1998) ("[T]o satisfy the first element of the prima facie case, it is sufficient that an employee have a good faith, objectively reasonable belief that his activity is protected by the statute."); Krouse v. American Sterilizer Co., 126 F.3d 494, 502 (3d Cir.1997) ("Unlike a plaintiff in an ADA discrimination case, a plaintiff in an ADA retaliation case need not establish that he is a `qualified individual with a disability.' By its own terms, the ADA retaliation provision protects `any individual' who has opposed any act or practice made unlawful by the ADA.") (quoting 42 U.S.C. § 12203(a)); see also Love v. RE/MAX of Am., Inc., 738 F.2d 383, 385 (10th Cir.1984) (concluding that a good faith belief that Title VII has 14

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been violated is sufficient to support a retaliation claim). This Circuit, in Selenke, stated that, even if the District Court finds that an individual is not disabled under the ADA, a retaliation claim may still exist if there is a reasonable good faith belief that the statute had been violated. Selenke, 248 F.3d at 1264. Joseph Steinbach had a reasonable good faith belief that Omni was violating the ADA in the actions it took toward his employee and brother, Jason Steinbach. To qualify for relief under the ADA, a plaintiff must establish: (i) that he is a disabled person within the meaning of the ADA, i.e. that he has an impairment that substantially limits major life functions, or has a record of having such impairment, or is regarded as having such impairment; and (ii) that he is qualified, i.e., with or without reasonable accommodation, he is able to perform the essential functions of the job; and (iii) that the employer terminated him because of his disability.

White v. York Intrn. Corp., 45 F.3d 357, 360-61 (10th Cir. 1995) (emphasis added). a. Plaintiff Had a Reasonable Good Faith Belief that Jason Steinbach Had a Disability

Joseph Steinbach understood that Jason had a disability. Although he could not describe the disability as a doctor would, the evidence shows that he had a lay person's understanding of the nature and scope of Jason Steinbach's disability. He understood that Jason Steinbach has a learning disability that limits his reading, writing, ability to retain information, and ability to do more than one task at a time. Under the applicable law, to show a disability, an individual must show that he has: (1) a

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"physical or mental impairment," that (2) "substantially limits," (3) "major life activities." See 29 C.F.R. §§ 1630.2(h)-(j). Under the regulations, a "physical impairment" includes "[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine." 29 C.F.R. § 1630.2(h)(1). The term "substantially limits" means, among other things, "[u]nable to perform a major life activity that the average person in the general population can perform"; or "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j). Finally, "[m]ajor [l]ife [a]ctivities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(I). It is undisputed that Joseph Steinbach understood Jason to have a limited ability to learn, read and write, and retain information. Under the plain wording of the regulations implementing the ADA, this amounts to a disability under that statute. Omni argues that the Court's findings in a completely separate case determine the issues in this matter. Specifically, Omni argues that the Court found that Mr. Steinbach did not have a complete understanding of Jason's disability. That finding, even if it were applicable here, is not determinate of the issue of whether Mr. Steinbach had a reasonable good faith belief that Jason had a disability. Thus, in understanding that his brother had a limited ability to learn, read and write, and 16

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retain information, Joseph Steinbach a reasonable good faith belief that Jason had a disability, as that term is defined under the ADA. b. Plaintiff Had a Reasonable Good Faith Belief that Jason Steinbach Was a Qualified Individual

Further, Joseph Steinbach had a reasonable, good faith belief that Jason Steinbach was a qualified individual, that is that he could perform the essential functions of the job. The evidence in the record is clear that Mr. Steinbach could and did perform his job as a groundskeeper satisfactorily. At the very least, there are genuine disputes as to the material facts relevant to the issue of whether Mr. Steinbach could perform the essential functions of his job. Omni's own records state clearly that Jason did a satisfactory job as a groundskeeper at Kimberly Woods Apartments. Every piece of undisputed evidence in the record demonstrates the same point. Diana Accardi, Donovan Vigil and Joe Steinbach, Jr., all signed off on annual evaluations that were at least satisfactory. In December of 2001, Plaintiff received a satisfactory evaluation, after which he received a 5% increase in salary. Diana Accardi, the District Manager, reviewed the evaluation, signed off on it, and wrote on it "Thanks for 2001!" Jason Steinbach also received raises on January 1, 2001, April 20, 2001, and on January 1, 2002. In addition, Jason received regular bonuses. Under the Omni Bonus Program, bonuses are awarded, in part, based on performance. Jason received several bonuses a year each year he was employed by Omni. In addition, Omni admitted that Jason Steinbach was doing a good job as a groundskeeper when the Community Manager, Michelle Thomas, told Jason's father that she really liked him and that he was doing a good job. Further, during the time Jason worked for Joseph Steinbach, he received only one

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documented corrective action, a corrective action ordered by Diana Accardi. Both Joseph Steinbach and the Community Manager, Michelle Thomas, believed that the corrective action was "ridiculous" and unnecessary. Thus, Omni's own actions gave rise to a good faith belief that Jason Steinbach was doing a satisfactory job as a groundskeeper at Kimberly Woods. In the alternative, there is sufficient evidence to create a genuine dispute of material fact as to whether Joseph Steinbach had a good faith reasonable belief that Jason was a qualified individual. c. Plaintiff Had a Reasonable Good Faith Belief that Omni Wished to Fire Jason Steinbach Because of his Disability

Plaintiff also had a reasonable, good faith belief that Omni wanted to terminate Jason Steinbach because of his disability. (i) Omni's District Manager, Diana Accardi, made it abundantly clear that she wanted Jason fired because he was disabled. Plaintiff believed that Jason Steinbach was doing a good job based on the evidence discussed above. Nevertheless, Diana Accardi wanted to fire Jason. Joseph Steinbach was told many times by Diana Accardi that she wanted him to get rid of Jason, and, on one occasion, Accardi told him that she did not want "retarded" people working at her multi-million dollar complex. Ms. Accardi put Plaintiff under so much stress that he went to the hospital with an apparent heart attack, which turned out to be job-related stress. Defendant's citation to Mr. Steinbach's deposition for the proposition that Diana Accardi, the District Manager, said that Omni "has to hire disabled people" is totally disingenuous in that it puts the emphasis in the wrong place. Plaintiff testified that Accardi said "we've got a $25 million complex and we have to hire disabled people?" The meaning of the testimony is clearly set out

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later in the deposition when Mr. Steinbach testified that Accardi said: "This is a $25 million dollar complex and this is what we get," referring to Jason as a disabled person. See Atch. 1, at 228:7 229:6. (ii) Further, Plaintiff had a good faith belief that Omni was informed about Jason's disability. Joseph Steinbach discussed the nature and scope of Jason Steinbach's disability with Hope Kindler-Smith, with the subsequent manager ­ Michelle Thomas, and with the District Manager, Diana Accardi, as follows: 1. Joseph Steinbach, Jr. discussed his brother's disability with Hope KindlerSmith and explained what he knew about the disability. He told Ms. KindlerSmith that Jason needed accommodations; for example that he couldn't remember too many things at one time. 2. Joseph Steinbach, Jr. told Diana Accardi and Michelle Thomas that Jason had limited ability to read, write and retain information. 3. Joseph Steinbach, Jr. told Omni that Jason's disability required that he be given verbal instructions, that he be given one task at a time, and that he be given hands-on training and retraining when necessary. Plaintiff also

discussed with them his use of a color-coded map, so that Jason would not need to read or remember more than one task at a time. Jason Steinbach also told Omni Properties that he was disabled. He told Hope KindlerSmith and Michelle Thomas, the Community Managers, in the presence of Plaintiff, that he had a disability and "had a hard time reading and writing and remembering a lot of stuff." Even if he had not told Omni representatives before, it is undisputed that he informed Michelle Thomas, the Community Manager, in October of 2001, that he had a learning disability in a meeting with Thomas, Accardi and the Plaintiff. Joseph Steinbach also heard Jason's father discuss his son's disability with the then-manager 19

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of Kimberly Woods, Hope Kindler-Smith. Specifically, he told Kindler-Smith that Jason had a disability that limited his ability to read, write and retain information, thus requiring verbal instructions and the provision of one task at a time. Jason's father also told Kindler-Smith that, if Jason could not do the work required because of his disability, Jason would quit. Kindler-Smith told him that the disability, and requested accommodations, would not be a problem and that she just wanted someone who would show up for work regularly: Q. What disability did you tell them that he had? A. I told them he would have to have verbal instructions and he would have to have instructions, you know, for new tasks. That's basically what we talked about. And I think the gal that I talked to, she said, Hey, that's no problem, just as long as he comes to work when he's supposed to, you know, we'll train him. And that's no problem. And to Joe, he was glad to have Jason because they were having problems, I guess, getting anybody that would last very long. And it was a good opportunity for them too, as well as Jason. Atch. 2, at 72:18-74:3. In short, Plaintiff had a reasonable good faith belief that he and his family did everything required under the law to explain Jason Steinbach's disability and its effects. As pointed out in Sanglap v. LaSalle Bank, FSB, 345 F.3d 515, 520 (7th Cir. 2003), the law "does not require a professional understanding of the plaintiff's condition; it is enough to show that the defendant knew of symptoms raising an inference that the plaintiff was disabled." The evidence in the record clearly shows that Omni was informed about the nature and extent of Jason Steinbach's disability. At the least, there are clearly genuine issues of material fact with regard to the issue, most of which deal 20

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with credibility, an issue particularly suited to determination by a jury. (iii) Plaintiff had a reasonable good faith belief that Jason and his family had requested accommodations for Jason's disability. There is clear evidence in the record that Plaintiff, Jason Steinbach, and Jason's father, on his behalf, requested accommodations from Omni. For example: 1. Jason Steinbach himself told Hope-Kindler Smith and Michelle Thomas that he needed verbal instructions and needed to be given one task at a time. 2. Jason's father requested accommodations from Hope Kindler-Smith on his behalf when Jason started at Kimberly Woods, including provision of verbal instructions, provision of one task at a time, provision of hands-on training and retraining when necessary. 3. Plaintiff provided accommodations to Jason Steinbach and discussed the need for those accommodations with Diana Accardi, the District Manager, and Michelle Thomas, the Community Manager. Those accommodations included: verbal instructions, explaining one task at a time, using the colorcoded map; providing hands-on training and retraining when necessary. Thus, evidence in the record shows that Joseph Steinbach had a reasonable good faith belief that Omni wished to terminate Jason because he was disabled. In the alternative, there is sufficient evidence to create a genuine dispute of material fact as to whether Joseph Steinbach had a good faith reasonable belief that Omni wished to terminate Jason because of his disability. 2. Joseph Was Subjected to an Adverse Action

There is a genuine issue of material fact as to whether Joseph Steinbach resigned or was 21

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terminated by Omni. The issue is essentially one of credibility ­ a determination properly made by the Jury. Joseph Steinbach has testified that he was called to the office of the Community Manager on September 24, 2002. He further testified that Accardi ordered him to fire his brother, but he refused because he believed that his brother was doing a good job. Steinbach testified that, during that conversation, Accardi made a derogatory remark about disabled persons, including his brother. Specifically, Accardi remarked that Kimberly Woods was a $25 million complex and sarcastically questioned why it would have to hire disabled people. Further, Steinbach testified that Accardi started off the conversation with words to the effect that she "did not want to be a fucking bitch her first day back from vacation," but that Jason had to be fired. As Joseph was walking out of the office after being fired, he said words to the effect that Accardi may not have intended to be a "fucking bitch," but she was. In addition, the evidence in the record shows that Omni's assertion that Steinbach resigned makes no sense. Specifically, the record contains the following evidence: (i) Joseph Steinbach had worked for Omni Properties for ten years. He planned to retire from Omni Properties. (ii) The Community Manager testified that she had never seen Joseph Steinbach get irate with the District Manager in the manner alleged by Omni. In fact, Ms. Thomas said that every time that Accardi came to the property, she found something wrong. However, she said, Plaintiff had never gotten mad at Accardi on any of these other occasions, always simply saying that he would take care of any problems she mentioned. (iii) The people testifying that Plaintiff resigned and swore at Accardi are Diana 22

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Accardi and Michelle Thomas, two people who are still employees of Omni. In fact, Michelle Thomas was promoted to District Manager of a then unidentified area several days before her deposition testimony in this matter. (iv) The employee testifying that Steinbach had been angry prior to going to the office has been disciplined for drinking on the job and using foul language. In short, there is sufficient evidence in the record to create a genuine issue of material fact as to whether Joseph Steinbach resigned or was fired after he was ordered to terminate Jason. C. LAW OF THE CASE AND COLLATERAL ESTOPPEL DOCTRINES DO NOT APPLY HERE The law of the case doctrine applies to issues previously decided in the same litigation. In Re Integra Realty Resources, Inc., 354 F.3d 1246, 1258-59 (10th Cir. 2004). Omni's attempts to apply the doctrine here must fail. The District Court granted summary judgment in a related, but completely separate case, Jason Steinbach v. Omni Properties, Case No. 04-cv-00685-EWN-OES. The Plaintiff here is different from the plaintiff in that case. There was no motion on the part of either party to consolidate the cases. Thus, the law of the case doctrine does not apply here. Likewise, the doctrine of collateral estoppel does not apply here. Collateral estoppel applies only where: (i) the issues in the prior and instant cases are identical; (ii) the prior action was fully adjudicated on the merits; (iii) the parties in the two cases are identical or in privity; and (iv) the party against whom the doctrine is invoked had a full and fair opportunity to litigate the issues in the prior case. Dodge v. Cotter Corp., 203 F.3d 1190, 1197-98 (10th Cir. 2000). Three of the four requirements of collateral estoppel are lacking here. First, the issues in the two cases are not identical. For example, the primary issue in 04-cv-00685 was whether Jason Steinbach was, in fact, a qualified disabled person who was terminated because of his disability. The primary issue in the 23

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present case is whether Joseph Steinbach had a reasonable good faith belief that the ADA had been violated. Second, as noted above, the plaintiffs in the two cases are not identical, nor are they in legal privity with each other. Third, the plaintiff here, Joseph Steinbach, not being a party to the earlier case, did not have a full and fair opportunity to litigate his issues in the prior case. To terminate his right to litigate his case because of the findings in a different case ­ a case to which he was not a party ­ deprives Joseph Steinbach of his due process rights, as well as his rights to utilize the courts, guaranteed by the First and Fifth Amendments to the U.S. Constitution. Finally, Defendant's argument that denying its motion would somehow result in "confusion and judicial inconsistency" is not supported by the record, including the brief filed in response to defendant's motion for summary judgment by plaintiff in 04-cv-00685, incorporated herein by reference. As contained in the record in 04-cv-00685, and as discussed herein, the facts and law in the earlier case are not dispositive of the factual and legal issues in this case. V. CONCLUSION For the reasons set out above, Plaintiff, Joseph Steinbach, respectfully requests that the Court deny Defendant Omni Properties' motion for summary judgement. Dated this 23rd day of January, 2006. Respectfully submitted, s/Patricia S. Bangert _______________________ Patricia S. Bangert, Esq. Lohf Shaiman Jacobs Hyman & Feiger 950 S. Cherry Street, Suite 900 Denver, CO 80246 Telephone: (303) 753-9000 Attorney for Plaintiff 24

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CERTIFICATE OF SERVICE I hereby certify that on January 23, 2006, the foregoing "PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT" was electronically filed with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following: Colleen Myers Rea, Esq.

_____s/Patricia S. Bangert_________________________________

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