Free Brief in Support of 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-OES

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

BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Pursuant to Fed. R. Civ. P. 56, Defendant Omni Properties, Inc. ("Omni"), respectfully submits this brief in support of its motion for summary judgment against Plaintiff Joseph Steinbach, Jr. ("Plaintiff"), on his sole claim for relief, which alleges retaliation under the Americans with Disabilities Act ("ADA"). INTRODUCTION AND BACKGROUND Omni employed Plaintiff as a maintenance supervisor at Omni's Kimberly Woods apartment complex ("Kimberly Woods") until he quit his job on September 24, 2002, tossing his keys across a table toward his female supervisors and calling one of his female supervisors a "f----- bitch." Before he quit his job with Omni, Plaintiff had supervised his brother, Jason

Steinbach ("Jason"), whom he had helped Omni hire as the groundskeeper at Kimberly Woods. This Court has already determined that: (1) Jason was not a qualified individual with a disability under the ADA; (2) Omni was never apprised of the nature and extent of Jason's

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disability; (3) Omni did not receive accommodation requests by or on behalf of Jason; and (4) Omni accommodated Jason's known limitations. Therefore, Plaintiff cannot establish that Jason was qualified for protection under the ADA. Plaintiff also cannot establish that he had an objectively reasonable belief that Jason was qualified for protection under the ADA. Thus, Plaintiff cannot establish that he engaged in protected activity on Jason's behalf. Further,

Plaintiff cannot establish that he suffered any adverse employment action after engaging in any protected activity, or that a causal link exists between any protected activity and any adverse employment action. Accordingly, Plaintiff cannot establish a prima facie case of retaliation under the ADA. Therefore, Omni is entitled to summary judgment, as a matter of law. STATEMENT OF UNDISPUTED FACTS I. Undisputed Facts Establishing that Plaintiff Did Not Engage in Protected Activity A. Plaintiff Had No Objectively Reasonable Basis to Believe that Jason Was a "Qualified Individual With a Disability" Under the ADA This Court has already determined that Jason was not a qualified individual with

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a disability under the ADA because he did not demonstrate that he could perform the essential functions of his job. Order Memorandum of Decision, filed September 8, 2005 ("Order"), at 1521, in Jason Steinbach v. Omni Properties, Inc., Civil Action No. 04-cv-00685-EWN-OES ("Jason's Case"). 2. disability is. 3. This Court has already determined that Plaintiff does not know what Jason's Order at 4. This Court has already determined that Plaintiff does not have a complete

understanding of Jason's disability. Order at 23.

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4.

Plaintiff is Jason's brother and was Jason's supervisor at Omni until September

24, 2002. A1 (Deposition of Plaintiff, dated September 13 & 14, 2004, and January 31, 2005) at 74:3-18, 75:18-22, 77:16-21, 92:7-13. B. Plaintiff Had No Objectively Reasonable Basis to Believe that Omni Was Aware of the Nature and Extent of Jason's Disability This Court has already determined that Omni was never apprised of the nature

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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. 6. This Court has already determined that 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. 7. This Court has already determined that 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 4-6. C. Plaintiff Had No Objectively Reasonable Basis to Believe that Accommodation Was Requested or that Omni Failed to Accommodate Jason's Known Limitations This Court has already determined that Omni did not receive requests for

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accommodation from Jason, Plaintiff or Jason's father. Order at 24-25. 9. This Court has already determined that Plaintiff did not request accommodations

on Jason's behalf. Order at 5, 9 & 24-25.

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10.

This Court has already determined that Omni did not fail to accommodate Jason's

known limitations. Order at 24-25. 11. This Court has already determined that Plaintiff accommodated Jason's known

limitations during the time that he supervised Jason. Order at 25. 12. This Court has already determined that 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. II. Undisputed Facts Establishing that Omni Took No Adverse Employment Action Against Plaintiff 13. Michelle Thomas ("Thomas") was the community manager at Kimberly Woods

and was Plaintiff's immediate supervisor; Diana Accardi ("Accardi") was Omni's district manager and was Plaintiff's second-level supervisor. 14. This Court has already determined that on September 24, 2002, Accardi found the

grounds at Kimberly Woods in an unacceptable condition and called a meeting with Plaintiff. Order at 9.1 15. Accardi asked Thomas to call Plaintiff to Thomas' office to discuss Accardi's A1 at 193:20-196:21;

dissatisfaction with the appearance of the grounds at Kimberly Woods.

A2 (Deposition of Accardi, dated October 12, 2004) at 60:20-63:8; A3 (Deposition of Thomas, dated October 1 & 15, 2004) at 69:11-71:2. 16. After Thomas radioed Plaintiff and asked him to come to her office, Plaintiff

commented to a co-worker, George Junkermeier ("Junkermeier"), "what's this f------ bitch want

The Order contains a typographical error relating to the year. The correct year, as stated in the cited testimony, is 2002, rather than 2003.

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now," and appeared to be angry. A4 (Deposition of Junkermeier, dated October 15, 2004) at 24:7-25:11. 17. The topic of discussion during Plaintiff's September 24, 2002, meeting with

Accardi and Thomas was the unacceptable state of the grounds at Kimberly Woods: Q: So what I would like you to tell me is everything you can remember about the conversation that took place among the three of you at that time [September 24, 2002]. Okay. I came into the office or I was called up to the office by -- Michelle [Thomas] asked me to come up to the office, and I came in and they asked me to close the door. So I closed the door. And Diana was sitting there, and she said to me, "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. And then what happened? What was said next? Well, I was just, you know, kind of shocked, you know, what's going on. You haven't been here for a long time and this is your first day back. What's going on? That's what I was thinking. We started to have a conversation about the grounds and she said that the grounds were unacceptable and there was crabapples here and various things here and there. And I said, "Well, you know, we are getting them cleaned up." And then she started talking about firing Jason. "You know, his work is just unacceptable. He needs to go." I disagreed with her and she just started talking about, you know, the grounds, what -- you know, crabapples. I don't even remember exactly what the issues were, but it was -- overall was the condition of the grounds. She didn't like it. And she asked me that -- that, you know, he needs to be terminated. I said, "Well, I disagree. I said he is doing his job." And we, you know, just started talking back and forth and I said, "Well, you know, we need more help, you know. You know, we already had a second groundsman that we had hired on and you got rid of him. There is no way one person can keep this property clean to your-- to your standards that you want done." I said, "It's just impossible." She didn't--she was getting upset with me saying, "No, we are not hiring anyone else," and this and that, and I said, "I'm sorry, there is nothing I 5

A:

Q: A:

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can -- I mean, I will do the best I can do to get the issues done that we can get done," I said, "but what you are asking is totally ridiculous." Oh, the owners are coming out or something like this. I said, "I understand." I said, you know -- you know, I kept saying, "One person can't just do this job alone." I mean, what she's asking to be done. And she says, "Well, we've got a $25 million complex and we have to hire disabled people," meaning Jason, and I was upset and -Q: A: Q: A: Q: And those were the exact words she used? Yes. Exactly? Yes. Meaning Jason -- did she say Jason's name or you just surmised that she meant Jason? Jason. We are speaking about Jason.

A:

A1 at 194:15-197:3. 18. Plaintiff argued with Accardi about the grounds and claims that he refused to

follow her alleged directive to terminate Jason and that Accardi allegedly told him "If you can't do it, we'll get somebody else to." A1 at 197:6-20, 199:6-202:2. 19. Plaintiff referred to Accardi as a "f------ bitch" and felt he "was doing the right

thing." A1 at 198:23-199:25. 20. 201:23-202:2. 21. Plaintiff did not tell Accardi or Thomas during the meeting that the reason Jason Plaintiff doesn't really know why Accardi wanted Jason to be terminated. A1 at

could not keep the grounds clean was because he was disabled, or that Jason needed an accommodation for his disability in order to keep the grounds clean. A1 at 194:15-202:2.

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22.

Plaintiff quit his job at Omni during this meeting, after tossing his keys across the

desk toward Accardi and calling Accardi a "f------ bitch." A2 at 60:20-61:19; A3 at 69:11-71:2, 73:11-74:23, 75:19-76:1. III. Undisputed Facts that Plaintiff Cannot Establish a Causal Connection Between Any Protected Activity and Any Adverse Employment Action 23. IV. See Statement of Undisputed Facts ("SOF") at 1-22, supra.

Undisputed Facts Establishing that Law of the Case and Collateral Estoppel Doctrines Apply 24. This Court consolidated this case and Jason's Case for discovery, and Plaintiff

concedes that the cases are related and would have been tried together if Jason's Case had not been resolved by summary judgment. See Plaintiff's Motion to Vacate and Continue Trial, filed October 13, 2005, at ¶ 2; Omni's Response in Opposition to Motion to Vacate and Continue Trial, filed October 26, 2005, at ¶ 1; Reply to Defendant's Response to Motion to Vacate and Continue Trial, filed October 30, 2005. 25. The issues decided in the Order are identical to the specified issues addressed

above. Compare SOF 1-23 with Order. 26. Jason's Case was finally adjudicated on the merits. Order, at 26; Final Judgment,

filed September 14, 2005, in Jason's Case. 27. Jason and Plaintiff, who are brothers, worked together at Omni as supervisor and

direct report; have been represented in these cases by the same attorney; have attended each other's depositions in these cases; have been treated by the same psychologist (Michael Mead, Ph.D) and have engaged the same expert witnesses for the trial of these cases; have jointly responded to motions filed in these cases; have made claims of discrimination and retaliation

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against Omni that arise from the same facts; and have presented a joint defense strategy against Omni in these cases. See SOF 4 & 28; see Court record in both cases, generally. 28. Plaintiff's counsel offered extensive evidence, including testimony from

Plaintiff's deposition (Exhibit A62 to Response Brief) and an affidavit signed by Plaintiff (Exhibit A75 to Response Brief), in opposition to Omni's motion for summary judgment in Jason's Case. See Response to Omni's Motion For Summary Judgment in Jason's Case, filed March 8, 2005. 29. Plaintiff was a party, or was in privity with a party (Jason), to the prior

adjudication (Jason's Case). See SOF 24-28, supra. 30. Plaintiff had a full and fair opportunity to litigate the issues decided in the Order

in Jason's Case. See SOF 24-29, supra. 31. The issues decided in the Order were decided explicitly. See Order. LEGAL ARGUMENT I. Summary Judgment Standard Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment 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 and the . . . moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) (2003); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554,

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91 L. Ed. 2d 265 (1986). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, Inc., 36 F.3d at 1518 (citing Celotex Corp., 477 U.S. at 325, 106 S. Ct. at 2554). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324, 106 S. Ct. at 2553; 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) (quoting Anderson, 477 U.S. at 248, 106 S. Ct. at 2505). The court may consider only admissible evidence when ruling on a summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). The factual record must be viewed in the light most favorable to the nonmoving party. Concrete Works, Inc., 36 F.3d at 1518 (citing Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990)). II. Analysis of ADA Retaliation Claims To establish a prima facie case of retaliation under the ADA, a plaintiff must show that: (1) plaintiff engaged in statutorily protected activity (conduct or expression); (2) plaintiff suffered an adverse employment action subsequent to such activity; and (3) there was a causal link between the protected activity and the adverse action. Stover v. Martinez, 382 F.3d 1064, 1071-72 (10th Cir. 2004); see also Annett v. Univ. of Kansas, 371 F.3d 1233, 1237 (10th Cir. 2004) (to establish retaliation claim, plaintiff must demonstrate that he experienced an adverse employment action); Sprague v. Thorn Americas, Inc., 129 F.3d 1355 (10th Cir. 1997) (employer's termination of the plaintiff after she refused to return to work, except on her own

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terms, after being on leave for several months did not constitute an adverse employment action). "Mere inconveniences. . . do not rise to the level of an adverse employment action." Stover, 382 F.3d at 1071-72. The familiar burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), applies to ADA claims. Taylor v. PepsiCola Co., 196 F.3d 1106, 1109 (10th Cir. 1999); Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1079 (10th Cir. 1999). Only if the plaintiff establishes a prima facie case is a defendant employer required to articulate a non-discriminatory reason for its employment decision. See Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1387 (10th Cir. 1981); Hines v. Chrysler Corp., 231 F.Supp.2d 1027, 1035 (D. Colo. 2001) (J. Nottingham). The plaintiff at all times bears the ultimate burden of persuading the trier of fact that he has been the victim of illegal discrimination. White v. York Int'l Corp., 45 F.3d 357, 361 (10th Cir. 1995); Hines, 231 F.Supp.2d at 1035. Here, Plaintiff cannot establish any of the elements of his prima facie case of retaliation. See SOF at 1-31. As such, Plaintiff's retaliation claim fails, as a matter of law. Stover, 382 F.3d at 1071-72. A. Plaintiff did not engage in protected activity.

The ADA prohibits employers from discriminating against an individual because of his or her disability. 42 U.S.C.A. § 12112(a); Sutton v. United Air Lines, Inc., 527 U.S. 471, 476, 119 S. Ct. 2139, 2144, 144 L. Ed. 2d 450 (1999); Martin v. Kansas, 190 F.3d 1120, 1129 (10th Cir. 1999); Hardy, 185 F.3d at 1079 (10th Cir. 1999); Hines, 231 F.Supp.2d at 1035. To be qualified for protection under the ADA, an individual must be a "qualified individual with a disability,"

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which is defined as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires." 42 U.S.C.A. § 12111(8); Taylor v. Pepsi, 196 F.3d at 1109. A retaliation claim based on a plaintiff's efforts to champion the needs of an allegedly disabled person must be premised upon an objectively reasonable belief that the person in question is qualified for protection under the ADA. Talanda v. KFC Nat'l Management Co., 140 F.3d 1090, 1097 (7th Cir. 1998); Selenke v. Medical Imaging of Colo., 248 F.3d 1249, 1264-65 (10th Cir, 2001). Here, this Court has already determined that Jason was not a qualified

individual with a disability under the ADA. SOF 1. Thus, Plaintiff's conduct relating to Jason cannot qualify as protected activity under the ADA unless Plaintiff had an objectively reasonable basis for believing that Jason was qualified for protection under the ADA. Talanda, 140 F.3d at 1097; Selenke, 248 F.3d at 1264-65. As Plaintiff lacked an understanding of Jason's disability, he lacked the information necessary to form an objectively reasonable belief that Jason was a qualified individual with a disability who was protected by the ADA. SOF 2-3. Plaintiff's uninformed speculations that Jason was qualified for protection under the ADA are not evidence and, as such, cannot establish an objectively reasonable belief the Jason was a qualified individual with a disability under the ADA. Talanda, 140 F.3d at 1097; Selenke, 248 F.3d at 1264-65. Similarly, Plaintiff cannot establish that he had an objectively reasonable basis for concluding that Omni was aware of the nature and extent of Jason's disability. This Court has already determined that Plaintiff did not inform Omni of the nature and extent of Jason's disability and that neither Jason nor Jason's father informed Omni of the nature and extent of

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Jason's disability.

SOF 5-7.

Where the disability, resulting limitations, and necessary

reasonable accommodations are not open, obvious, and apparent to the employer, as is often the case when mental disabilities are involved, the initial burden rests primarily upon the employee, or his health care provider, to specifically identify the disability and resulting limitations, and to suggest reasonable accommodations. Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir. 1995), cert. denied, 136 L. Ed. 2d 515, 117 S. Ct. 586 (1996); see also Woodman v. Runyon, 132 F.3d 1330, 1345 (10th Cir. 1997) (employee has duty to notify employer of the nature of his disability and resulting limitations). When the nature of the disability, resulting limitations, and necessary accommodations are uniquely within the knowledge of the employee and his health care providers, a disabled employee cannot remain silent and expect his employer to bear the burden of identifying the need for, and suggesting, an appropriate accommodation. Id.; see also Templeton v. Neodata Svcs., Inc., 162 F.3d 617, 619 (10th 1998) (where missing information can only be provided by one of the parties, failure to provide the information may cause breakdown of the interactive process and the party withholding the information may be found to have obstructed that process). Here, the Court has already determined that Omni was not provided with sufficient information about Jason's disability and resulting limitations to place Omni on notice of the specific nature and extent of Jason's disability and resulting limitations. SOF 5-7; Taylor v. Principal, 93 F.3d at 165; Woodman, 132 F.3d at 1345; Templeton, 162 F.3d at 619. As Plaintiff had no objectively reasonable basis for believing Omni had been apprised of the nature and extent of Jason's disability and any resulting limitations, he lacked the necessary information to

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form an objectively reasonable belief that Jason was qualified for protection under the ADA. See Talanda, 140 F.3d at 1097; Selenke, 248 F.3d at 1264-65. Plaintiff also cannot establish that he had an objectively reasonable basis for concluding that accommodation was requested by Jason or on Jason's behalf, or that Omni failed to accommodate Jason's known limitations. Indeed, this Court has already determined that

accommodation was not requested by Jason or on Jason's behalf and that, nonetheless, Omni accommodated Jason's known limitations. SOF 8-12. An employer is not required to speculate as to the extent of an employee's disability or the employee's need or desire for accommodation. Gantt v. Wilson Sporting Goods, Co., 143 F.3d 1042, 1046-47 (6th Cir. 1998); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1179 (10th Cir. 1999); see also Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 952 (8th Cir. 1999) (only when disabled individual requests accommodation does it become necessary to initiate the interactive process); Williams v. Philadelphia Housing Auth. Police Dept., 380 F.3d 751, 776 (3rd Cir. 2004) (offering unsolicited accommodation to employee, along with other evidence, may be evidence that employer regarded the employee as disabled); McKenzie v. Dovala, 242 F.3d 967, 971 (10th Cir. 2001) (employer can be liable for perceiving employee as disabled); Taylor v. Principal, 93 F.3d at 164 (ADA does not require an employer to assume that an employee with a disability suffers from a resulting limitation); Templeton, 162 F.3d at 619 (failure to provide information may be cause of the breakdown of the interactive process and the party withholding the information may be found to have obstructed that process). Here, despite the lack of any request for accommodation, Omni accommodated Jason's known limitations. SOF 8-12. Plaintiff himself accommodated Jason's known limitations

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during the time period that he supervised Jason. SOF 11. After Plaintiff quit his employment with Omni, Jason's subsequent supervisor also accommodated Jason's known limitations. SOF 12. As Plaintiff had no objectively reasonable basis to beleive that accommodation was

requested by Jason or on Jason's behalf, or that Omni failed to accommodate Jason's known limitations, he lacked the necessary information to form an objectively reasonable belief that Jason was qualified for protection under the ADA. See Talanda, 140 F.3d at 1097; Selenke, 248 F.3d at 1264-65. As Plaintiff cannot establish that he had an objectively reasonable basis for believing that Jason was qualified for protection under the ADA, he cannot establish that he engaged in statutorily protected activity. Talanda, 140 F.3d at 1097; Selenke, 248 F.3d at 1264-65.

Accordingly, Plaintiff cannot establish the first element of a prima facie case of retaliation and, therefore, his retaliation claim fails as a matter of law. 2. Plaintiff did not suffer an adverse employment action and cannot establish a causal link between any protected activity and any adverse employment action.

Plaintiff quit his job at Omni, after tossing his keys across the desk toward his female supervisor and calling her a "f------ bitch." SOF 22. Although Plaintiff asserts that he was terminated from his employment with Omni, he admits that he argued with his supervisor, Accardi, about the grounds at Kimberly Woods, admits that the grounds were not clean to Accardi's satisfaction, admits that he refused to follow an alleged directive to terminate the groundkeeper (Jason) because of the appearance of the grounds, and admits that he called Accardi a "f------ bitch." SOF 17-21. Thus, even assuming arguendo that Plaintiff was fired,

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his own admitted actions warranted his termination, as a matter of law, and his termination was not connected to Jason's disability or any accommodation request. SOF 17-23. Assuming arguendo that Plaintiff could establish that he engaged in protected conduct and that he suffered an adverse employment action, Plaintiff cannot establish a causal link between any protected activity and any adverse employment action. The topic of Plaintiff's discussion with Accardi and Thomas on September 24, 2002, concerned problems with the grounds, not Jason's disability or any request for accommodation. SOF 17-23. Plaintiff's argument with Accardi was based on his conclusion that the groundskeeper job required more than one worker; it was not based on any disability that Jason had or any accommodation that Jason requested or required. SOF 17-21. Thus, any alleged termination was not causally related to Jason's disability or any requested accommodation and, therefore, not causally linked to any protected activity. Selenke, 248 F.3d at 1264-65. 4. Omni is entitled to judgment as a matter of law.

As Plaintiff cannot establish a prima facie case of retaliation, his ADA retaliation claim fails, the burden of persuasion never shifts to Omni, and Omni is entitled to summary judgment, as a matter of law. Selenke, 248 F.3d at 1264-65; Pushkin, 658 F.2d at 1387; Hines, 231 F.Supp.2d at 1035. III. Law of the Case and Collateral Estoppel Doctrines Apply This Court's Order and the issues decided therein are binding here through the doctrines of law of the case and collateral estoppel. See In re Integra Realty Resources, Inc., 354 F.3d 1246, 1258-59 (10th Cir. 2004) (law of case doctrine precludes relitigation of issues already

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decided; Dodge v. Cotter Corp., 203 F.3d 1190, 1197-98 (10th Cir. 2000) (doctrine of collateral estoppel precludes relitigation of issues previously decided). The collateral estoppel doctrine applies where, as here: (1) the issues previously decided are identical to the ones 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; SOF 24-31. 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. The law of the case doctrine "applies to issues previously decided, either explicitly or by necessary implication" in the same litigation. Integra, 354 F.3d at 1258-59. As this case and Jason's Case were consolidated for discovery and were to be consolidated for trial, Plaintiff and Jason were codefendants. SOF 24-31. 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; SOF 24-31. Even 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 it already decided in the Order. Based on the facts and law cited in Omni's motion for summary judgment, brief in support of motion for summary judgment brief, and reply brief in support of motion for summary judgment in Jason's Case, incorporated herein by reference, as well as the response brief filed by Jason's and Plaintiff's attorney, Ms. Bangert, this Court has already decided the

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issues addressed in the Order. Rendering a conflicting decision here on the same issues is unsupported by the evidence and would result in confusion and judicial inconsistency. 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 cannot establish a prima facie case of retaliation. Plaintiff cannot establish that: (1) he engaged in statutorily protected activity; (2) he suffered an adverse employment action subsequent to engaging in such protected activity; or (3) a causal link exists between any protected activity and any adverse employment action. 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.

Dated: January 3, 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 January 3, 2006, I electronically filed the foregoing BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT using the CM/ECF system, which will send notification of such filing to the following e-mail addressee: Patricia S. Bangert, Esq. [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 [email protected] E-mail:

Denver:10382.1

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