Free Trial Brief - District Court of Colorado - Colorado

Case 1:04-cv-01009-EWN-MEH

Document 81

Filed 04/06/2006

Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1009-EWN-MEH MARIAN J. BARCIKOWSKI, v. SUN MICROSYSTEMS, INC., a Delaware corporation, Defendant. ______________________________________________________________________________ PLAINTIFF'S TRIAL BRIEF ______________________________________________________________________________ COMES NOW the Plaintiff, by and through his attorneys, Roseman & Kazmierski, LLC, and, respectfully submits the following Trial Brief: STATEMENT OF THE CASE Plaintiff previously provided an extensive summary of evidence that he expects to present at trial (Plaintiff's Response to Defendant's Motion in Limine to Exclude the Testimony of Plaintiff's Damages Expert, pp. 2-5). Plaintiff hereby adopts and incorporates by reference that section of that Response. ARGUMENT I. PLAINTIFF WILL BE ABLE TO ESTABLISH AT TRIAL A PRIMA FACIE CASE OF INTERFERENCE WITH HIS FMLA RIGHTS. This Court has denied Defendant's Motion for Summary Judgment, and this case will go forward to trial, on Plaintiff's claim, based on 29 U.S.C. § 2615(a)(1), that Defendant interfered with, restrained, or denied the exercise of or the attempt to exercise any right provided under the Family and Medical Leave Act ("FMLA"). The interference theory is derived from the FMLA's creation of substantive rights. If an employer interferes with the FMLA-created right to medical leave or to the right to reinstatement following such leave, a deprivation of that right is a violation of that statute, regardless of the employer's intent. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002). The language in § 2615(a)(1) prohibiting "interference with" and "restraint" of the exercise of FMLA rights largely mimics the language in § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), which provides that it is an unfair labor practice for an employer "to interfere Plaintiff,

Case 1:04-cv-01009-EWN-MEH

Document 81 -2-

Filed 04/06/2006

Page 2 of 9

with, restrain, or coerce employees in the exercise of the rights guaranteed" by § 7 of the NLRA. Because the FMLA's language so closely follows that of the NLRA, the courts' interpretation of § 8(a)(1) of the NLRA helps to clarify the meaning of the statutory terms "interference" and "restraint." Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1123 (9th Cir. 2001). As a general matter, the established understanding at the time the FMLA was enacted was that employer actions that deter employees' participation in protected activities constitute "interference" or "restraint" with the employees' exercise of their rights. See NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964) ("the example of employees who are discharged on false charges would or might have a deterrent effect on other employees"). Under both of those statutes, attaching negative consequences to the exercise of protected rights surely "tends to chill" an employee's willingness to exercise those rights. Bachelder, 259 F.3d at 1124; Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 147 (3d Cir. 2004). The Tenth Circuit has recognized that the "fact that the interference/entitlement theory and the retaliation/discrimination theory are recognized as separate theories" under the FMLA "makes it evident ... that retaliation is not the only impermissible reason for dismissal" under that statute. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.32d 955, 961 (10th Cir. 2002). A plaintiff can prevail under that theory through evidence that he "would not have been dismissed had [he] not taken FMLA leave." Id.. To make out a prima facie claim for FMLA interference, a plaintiff must establish (1) that he was entitled to FMLA leave, (2) that some adverse action by the employer interfered with his right to take FMLA leave, and (3) that the employer's action was related to the exercise or attempted exercise of his FMLA rights. Jones v. Denver Pub. Sch., 427 F.3d 1315, 1319 (10th Cir. 2005). The parties have stipulated to the first of those three elements (Final Pretrial Order, p. 4, § 4, ¶ 6)). In addition, Plaintiff will testify that he sought medical attention on September 25, 2001; that he was unable to work due to that medical condition for at least three consecutive days, and that he received continuing treatment by a health care provider during that period of time. case. Plaintiff's evidence on the second prong ­ an adverse action that interfered with his FMLA rights ­ will include evidence about Defendant's failure to restore him to his former position or to an equivalent position and its decision to terminate his employment a mere 15 days after he See 29 C.F.R. § 825.114(a)(2). The issue of Plaintiff's entitlement to FMLA leave has never been an issue in this

Case 1:04-cv-01009-EWN-MEH

Document 81 -3-

Filed 04/06/2006

Page 3 of 9

attempted to return to work from his FMLA leave.1 It is simply not true, as Defendant has contended (Defendant's Reply in Support of Its Motion to Exclude the Testimony of Plaintiff's Damages Expert, p. 4) that "courts have generally analyzed FMLA termination claims under an `interference' theory [only] if the termination at issue occurred before, during or immediately upon the conclusion of FMLA leave." Plaintiff previously has cited (Plaintiff's Response to Defendant's Motion in Limine to Exclude the Testimony of Plaintiff's Damages Expert, p. 14) a Seventh Circuit opinion and four district court opinions in which those courts denied motions to dismiss or for summary judgment on FMLA interference claims arising out of termination decisions made after the plaintiffs in those cases has been restored to their former positions. Instead, the courts have analyzed FMLA interference and retaliation claims based on which claims were pleaded2 and based upon the evidence in each case. See, e.g., Bearley v. Friendly Ice Cream Corp., 322 F. Supp. 2d 563, 57174 (M.D. Pa. 2004) (claim arising from termination of employment following restoration to job after FMLA leave analyzed under both interference and retaliation theories).3 Plaintiff will establish the third prong of his prima facie case by evidence that there was a relationship between his FMLA leave and the termination of his employment. As Plaintiff has discussed previously (Plaintiff's Response to Defendant's Motion in Limine to Exclude the Defendant has argued that Plaintiff's interference claim is solely based on its alleged refusal to reinstate him to his former position or to an equivalent position upon his return from FMLA leave (Defendant's Reply in Support of Its Motion in Limine to Exclude the Testimony of Plaintiff's Damages Expert, p. 2). Defendant did not respond to Plaintiff's argument that his FMLA interference claim has included, and always has included, the allegation that Defendant interfered with his FMLA rights by terminating his employment (Plaintiff's Response to Defendant's Motion in Limine to Exclude the Testimony of Plaintiff's Damages Expert, pp. 7-10). Nor has Defendant explained why it now considers Plaintiff's FMLA interference claim to be solely based upon the denial of his right to job restoration, when it moved, or at least claims that it moved, for summary judgment on that claim on the ground that Plaintiff allegedly had presented no evidence of any causal connection between his FMLA leave and the termination of his employment (Sun Microsystems Inc.'s Brief in Support of Motion for Summary Judgment, pp. 15-16). 2 See, e.g., Smith, 298 F.3d at 961 (plaintiff decided not to pursue her claim under the FMLA retaliation theory); Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1104-05 (10th Cir. 2005) (plaintiff claimed only FMLA retaliation). 3 Defendant has not responded to Plaintiff's argument (Plaintiff's Response to Defendant's Motion in Limine to Exclude the Testimony of Plaintiff's Damages Expert, p. 15) that there "is no valid public policy that would support immunizing an employer for an otherwise unlawful termination decision merely because it was made after an employee returned to work following his or her FMLA leave." Under Defendant's theory, an employer that fires an employee one day before the end of that employee's FMLA leave can be held liable under the interference theory, while an employer that fires an employee one day after restoring that employee to his or her former position would not be liable, even if the termination decision was related to the FMLA leave.
1

Case 1:04-cv-01009-EWN-MEH

Document 81 -4-

Filed 04/06/2006

Page 4 of 9

Testimony of Plaintiff's Damages Expert, p. 14), the Tenth Circuit has held that the timing of a termination decision can indicate a causal relationship between an employee's FMLA leave and dismissal. Smith, 298 F.3d at 961. The Tenth Circuit, in Smith, cited with approval that court's earlier opinion in Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999), for the proposition "that one and one-half months between the protected activity and dismissal may, by itself, establish causation" (internal citation marks omitted). The Tenth Circuit held in Anderson that termination of employment two months and one week after the plaintiff had filed an EEOC charge was sufficient to establish a prima facie case of retaliation under the Americans with Disabilities Act. That decision cited Ramirez v. Okla. Dept. of Mental Health, 41 F.3d 584, 596 (10th Cir. 1991), in which that court held that adverse actions that occurred one and one-half months after the plaintiffs' protected activity was sufficient to establish a prima facie case of retaliation. The Tenth Circuit's use of that authority in Smith establishes, if there is any doubt, that an FMLA interference claim can be based on a discharge decision made after an employee has been restored to his or her former position or to an equivalent position. It would make no sense to cite that authority if an FMLA interference claim were limited to a termination decision made during an employee's FMLA leave. II. DEFENDANT WILL NOT BE ABLE TO ESTABLISH THAT IT WOULD HAVE DISCHARGED PLAINTIFF EVEN IF HE HAD NOT TAKEN FMLA LEAVE. As Plaintiff has explained previously (Plaintiff's Response to Defendant's Motion in Limine to Exclude the Testimony of Plaintiff's Damages Expert, p. 11), where a plaintiff has established a prima facie case of FMLA interference, the employer can avoid liability by proving, by a preponderance of the evidence, that it would have terminated the plaintiff's employment even if he or she had not exercised or attempted to exercise that employee's FMLA rights. Smith, 298 F.3d at 963. The federal courts have looked at a variety of factors in determining whether an employer has satisfied that burden. Those factors include: Pre-FMLA Leave Job Stability. In Parker v. Hahnemann Univ. Hosp., 234 F. Supp. 2d 478, 489-90 (D.N.J. 2002), the court denied the defendant's motion for summary judgment on an FMLA interference claim where the plaintiff presented evidence that the hospital's senior directors of nursing had told her that her position was "here to stay" because the administration and the physicians were happy with it and presented evidence that other staff informed her that her position

Case 1:04-cv-01009-EWN-MEH

Document 81 -5-

Filed 04/06/2006

Page 5 of 9

was going to stay. See also Toeller v. Wis. Dept. of Corrections, 390 F. Supp. 2d 792, 796-97 (E.D. Wis. 2005) (court denied defendant's motion for summary judgment where plaintiff presented evidence that discharge decision occurred only after FMLA leave). In this case, it is undisputed that Plaintiff received no disciplinary or corrective actions before his FMLA leave, that Defendant promoted him and gave him an increase only five months before his FMLA leave, and that his first-level supervisor gave him an overall performance rating of "Superior" ­ the highest possible rating in Defendant's performance appraisal system ­ less than three months before he began his FMLA leave. Discharge Based on Pre-FMLA Leave Events. In Smith, the employer had

reprimanded the plaintiff for not training her junior employees, but set no deadline for that training to be completed and did not require any documentation. 298 F.3d at 958-59. The Tenth Circuit held that the jury verdict in favor of the plaintiff was supported by the employer's "failure to subject her to serious discipline before her FMLA leave, the lack of formal emphasis on the importance of training [and] the lack of monitoring or reporting of training progress." Id. at 961. See also Toeller, supra (while plaintiff "had less than a perfect work record prior to August 23, 2000," one week before he began his FMLA leave, he "was not discharged prior to August 23, and ... his discharge did not occur until after he returned from his medical leave"); Riggs v. Pilkington, 2005 U.S. Dist. LEXIS 16956, at ** 12-17 (S.D. Ind. 2005) (court denied employer's motion for summary judgment where all of the incidents on which discharge was based occurred before employee's FMLA leave, employer did not inform plaintiff about his alleged insubordination for more than two months after it allegedly occurred, and employer did not inform plaintiff his employment could be terminated immediately when they discussed that incident with him before his FMLA leave).4 In this case, Plaintiff will present evidence that the alleged accounting irregularities on which the discharge decision was supposedly based were approved by his supervisors at the time that Plaintiff recommended that they be booked and where all of the documentation supporting those accounting entries was available for inspection by any auditor or by any person in Plaintiff's chain of command at the time or after those entries were booked. Robyn Denholm, the manager who decided to terminate Plaintiff's employment, did not ask Plaintiff to explain those accounting entries during the 15 days after she first learned of them and the date on which Plaintiff began his FMLA

Plaintiff attached copies of all of the unreported opinions cited in this Trial Brief to his Response to Defendant's Motion in Limine to Exclude the Testimony of Plaintiff's Damages Expert.
4

Case 1:04-cv-01009-EWN-MEH

Document 81 -6-

Filed 04/06/2006

Page 6 of 9

leave. No question was raised about those entries for more than two months after they were booked. Defendant promoted Plaintiff, gave him a pay increase and gave him a "Superior" rating after he had recommended very similar accounting entries less than six months before he began his FMLA leave. Plaintiff Not Responsible for Alleged Misconduct. In Tuttle v. Eats & Treats Ops., Inc., 10 Wage & Hour Cas. 2d (BNA) 1820, 2005 U.S. Dist. LEXIS 15302, at ** 14-15 (D. Kan. 2005), the court denied the employer's motion for summary judgment where the plaintiff presented evidence that she was not responsible for the sanitation citations on which the termination decision was based, at least in part, and that her supervisor was responsible for the staff friction with her store. In this case, Plaintiff will present evidence that one of the computer programs on which he had to rely in connection with revenue recognition frequently, and unpredictably, produced inaccurate information; that Cindy Newell, an employee who was trying to eliminate duplicates and cancellations reported by that program, did not analyze all of the relevant records and did not create an audit trail in connection with her work; and that Plaintiff did not have the time or resources to correct those deficiencies in her work after he learned of them. Plaintiff also will present testimony that the methodology that he used for the accruals that allegedly formed the basis for Defendant's termination decision was the same methodology that he had used for years, without any question being raised by any of his supervisors. III. PLAINTIFF IS ENTITLED TO AN AWARD OF LOST SALARY, BENEFITS, INTEREST AND LIQUIDATED DAMAGES. The FMLA provides for an award of "any wages, salary, employment benefits, or other compensation denied or lost" as a result of an employer's violation of that statute. 29 U.S.C. § 2617(a)(1)(A)(i)(I). In addition, a prevailing employee is entitled to recover interest on that amount calculated at the prevailing rate. 29 U.S.C. § 2617(a)(1)(A)(ii). Further, a prevailing plaintiff shall recover "an additional amount as liquidated damages" equal to the sum of those two previous amounts, unless the employer "proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615 of this title." 29 U.S.C. § 2617(a)(1)(A)(iii). The defense of an employer's good faith goes only to damages, not to liability. Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1130 (9th Cir. 2001).

Case 1:04-cv-01009-EWN-MEH

Document 81 -7-

Filed 04/06/2006

Page 7 of 9

An employer must show both good faith and reasonable grounds for the act or omission in order to move for a reduction in the liquidated damages award. Chander v. Specialty Tires of America (Tenn.), Inc., 283 F.3d 818, 827 (6th Cir. 2002). Even if an employer meets that burden, the court has the discretion to award the full amount of liquidated damages. Nero v. Industrial Molding Co., 167 F.3d 921, 928-29 (5th Cir. 1999). Among the evidence that Plaintiff plans to present on this issue will be testimony that, during Plaintiff's FMLA leave, one of Plaintiff's subordinate employees, Jeffrey Powley, moved into Plaintiff's former office; that Plaintiff's books and other belongings were placed in boxes; and that no office or even a cubicle had been assigned to Plaintiff before he attempted to return to work immediately after the end of his FMLA leave. Defendant claims that it terminated Plaintiff's employment at least in part because there was no documentation to substantiate certain accounting entries he had recommended, while denying Plaintiff access to those documents and therefore denying him the ability to establish that that documentation existed. Plaintiff will present evidence that Defendant never intended to restore Plaintiff to his former position ­ as shown by its decision to evict Plaintiff from his office during his FMLA leave ­ and that it based that decision on political maneuvers made possible only because Plaintiff was on FMLA leave. IV. THIS COURT INSTRUCTION. SHOULD GIVE AN ADVERSE-INFERENCE JURY

Plaintiff requested that Defendant produce, inter alia, all "queries, reports, spreadsheets, and any and all other documents, not previously produced to Plaintiff, that Plaintiff and any employee who worked under his supervision produced, reviewed or received in connection with revenue accruals during the third and fourth quarter of Defendant's 2001 fiscal year and during the first quarter of the Defendant's 2002 fiscal year" (Exh. A, p. 2, ¶ 2). In a letter dated April 1, 2005 (Exh. B), Plaintiff's attorneys informed Defendant that it had failed to produce either an electronic or printed copy of the one of the two spreadsheets that Cindy Newell had attached to her e-mail message to Plaintiff on June 27, 2001. That spreadsheet is a critical piece of evidence in this case. Defendant has claimed that Plaintiff engaged in gross misconduct, and therefore was discharged, because he disregarded the information contained in Ms. Newell's analysis. Plaintiff will testify that he did not use that information because, after reviewing the now-missing spreadsheet with Ms.

Case 1:04-cv-01009-EWN-MEH

Document 81 -8-

Filed 04/06/2006

Page 8 of 9

Newell, he realized that her analysis was incomplete and that she had failed to create or maintain any audit trail substantiating the changes she had made in Defendant's electronic records. Defendant has produced a paper copy of the electronic mail message that Ms. Newell sent to Plaintiff on June 27, 2001, along with a printed copy of the other, summary spreadsheet (with Ms. Newell's handwritten notations added) that she had attached to that electronic mail message. Defendant also produced an electronic copy of an e-mail message that Jennifer Philips had sent to Ms. Newell on that same date, along with electronic copies of both of the spreadsheets that Ms. Philips has attached to that e-mail message (see Exh. B). In a letter dated May 10, 2005 (Exh. C), counsel for Defendant informed Plaintiff's attorneys that "Defendant is unable to locate in either electronic form or hard copy the version of the spreadsheet that was apparently attached to the e-mail referenced" in the letter of April 1, 2005. Defendant has not produced either an electronic or printed copy of that spreadsheet. In Hicks v. Gates Rubber Co., 833 F.2d 1406, 1418-19 (10th Cir. 1987), the Tenth Circuit held that an employee was entitled to the benefit of a presumption that destroyed documents would have bolstered her case where her former employer had violated 29 C.F.R. § 1602.14(a) by destroying those documents. That regulation, issued by the EEOC, requires every employer covered by the federal anti-discrimination statues to preserve "[a]ny personnel or employment record ... (including but not limited necessarily limited to ... records having to do with ... termination ...) ... for a period of 6 months from the date of the making of the record or the personnel action involved, whichever occurs later." That regulation further provides that where a charge of employment discrimination has been filed under Title VII, "the responding employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action." The documents in question in Hicks consisted of clock charts and daily reports noting the job performance of the plaintiff and the performance of other, similarly situated security guards. 833 F.2d at 1418. The Tenth Circuit held that those documents were "personnel or employment" records under § 1602.14, since the employer relied on those documents in disciplining and ultimately firing the plaintiff. Id. at 1419. That court further held that the plaintiff was entitled to an adverseinference instruction, even though the records in question were destroyed pursuant to the employer's routine business practices. Id. at 1418. See also Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003) (adverse-inference instruction for deletion of electronic file).

Case 1:04-cv-01009-EWN-MEH

Document 81 -9-

Filed 04/06/2006

Page 9 of 9

Defendant selectively maintained these electronic spreadsheets, preserving the ones that Ms. Philips sent to Ms. Newell but not the more important of two the spreadsheets that Ms. Newell sent to Plaintiff. See Hicks, 833 F.2d at 1418. Since Defendant had a duty to maintain this evidence, Plaintiff is entitled to an instruction that would permit the jury to draw an adverse inference from Defendant's destruction of this crucial information. CONCLUSION For the reasons stated herein, Plaintiff submits that this case should be submitted to the jury on all aspects of Plaintiff's FMLA interference claim; that this Court should award Plaintiff full relief, including liquidated damages; and that this Court should give the jury an adverse-inference instruction. Respectfully submitted, ROSEMAN & KAZMIERSKI, LLC s/Barry D. Roseman BARRY D. ROSEMAN 1120 Lincoln Street, Suite 1607 Denver, Colorado 80203 303/839-1771 Attorneys for Plaintiff CERTIFICATE OF SERVICE The undersigned hereby certifies that, on the sixth day of April 2006, a true and correct copy of the above and foregoing Plaintiff's Trial Brief was sent via CM/ECF electronic filing, addressed to the following party: Steven J. Merker, Esq. R. Stephen Hall, Esq. DORSEY & WHITNEY LLP 370 17th Street, Suite 4700 Denver, Colorado 80202-5647

s/Karin C. Bailey Karin C. Bailey