Free Brief in Support of Motion - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01009-EWN-MEH MARIAN J. BARCIKOWSKI, Plaintiff, v. SUN MICROSYSTEMS, INC., a Delaware corporation, Defendant. ______________________________________________________________________________ DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFF'S DAMAGES EXPERT ______________________________________________________________________________

Sun Microsystems, Inc. ("Sun") respectfully submits this Reply in support of its motion for an Order excluding the testimony of Jane Lillydahl, the expert retained by the plaintiff to opine on the damages he allegedly suffered as a result of his termination. I. INTRODUCTION.

In his attempt to avoid the consequences of this Court's Order and Memorandum of Decision on Sun's summary judgment motion, the plaintiff mischaracterizes the holding of the Court and misinterprets the Family and Medical Leave Act. The simple fact is that all of the plaintiff's claims relating to his termination have been dismissed. The only claim left in this case is the plaintiff's claim that Sun interfered with his right to reinstatement upon his return from medical leave by placing him on leave instead of in his former position as SES Americas Controller. Because the propriety of the plaintiff's termination is no longer an issue, the damages he may have suffered, if any, as a result of his termination are no longer relevant.

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Accordingly, the testimony of the plaintiff's damages expert--who opines solely on the issue of termination damages--should be excluded. II. THIS COURT DISMISSED ALL OF THE CLAIMS RELATING TO THE PLAINTIFF'S TERMINATION; ACCORDINGLY, TESTIMONY REGARDING TERMINATION DAMAGES IS IRRELEVANT AND MUST BE EXCLUDED. A. The Plaintiff Mischaracterizes The Holding Of This Court.

In his Response to Sun's Motion in Limine, the plaintiff argues that this Court did not rule on the part of his "interference" claim that he says was based on Sun's termination decision. That argument mischaracterizes the Court's decision on Sun's summary judgment motion. In that decision, the Court described--correctly--the plaintiff's "interference" claim: "[h]ere, Plaintiff alleges that Defendant violated 29 U.S.C. § 2615(a)(1) by refusing to reinstate Plaintiff to his former position as SES Americas Controller or an equivalent position upon his return from FMLA leave as required by 29 U.S.C. § 2614(a)."1 Thus, the Court correctly considered the plaintiff's "interference" claim to focus on whether the plaintiff was reinstated upon his return from leave, and not on his termination six weeks later. In deciding Sun's summary judgment motion on that claim,2 the Court held that "a genuine issue of fact exists as to whether Defendant's placement of Plaintiff on paid administrative leave upon his return is tantamount to reinstatement into his position prior to his FMLA leave."3 Thus, this Court did not, as argued by the plaintiff, simply forget to consider one of the plaintiff's termination claims; indeed, the Court specifically dismissed all of those claims.

1 Order and Memorandum of Decision at p. 31. 2 The plaintiff's assertion that it is "questionable" whether Sun moved for summary judgment on his "interference" claim is nonsense. The very
first line of Sun's motion states that Sun moves "for a summary judgment of dismissal with prejudice of each of the plaintiff's claims. . . ." (Emphasis added).

3 Id. at p. 32.

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Rather, the Court very clearly--and correctly--stated the nature of his "interference" claim, and ruled on that claim. Moreover, in ruling on that claim, the Court very clearly described the issue remaining for trial--whether placing the plaintiff on leave at the end of his FMLA leave amounted to "reinstatement" as required by 29 U.S.C. § 2614(a). Because the plaintiff's termination is simply not relevant to that claim, the damages he might have suffered, if any, as a result of his termination are no longer relevant, and Sun's Motion in Limine should be granted. B. The Plaintiff Misinterprets The Family Medical Leave Act.

The plaintiff argues that, under the circumstances of this case, his termination could have given rise to a FMLA "interference" claim. That argument is based upon a fundamental misinterpretation of the Family Medical Leave Act. A FMLA "interference" claim arises out of 29 U.S.C. § 2615(a)(1), which makes it unlawful for an employer to "interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." The pertinent "right provided under this subchapter" is the right of restoration to position established by 29 U.S.C. § 2614(a). Section 2614(a) describes that right as follows: ". . . any eligible employee who takes [FMLA] leave . . . shall be entitled, on return from such leave-- (A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. [Emphasis added.]

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Thus, the plain language of FMLA makes clear that the focus of a FMLA "interference" claim is on whether the employer restores the employee to his old position or its equivalent "on return from such leave," and not on what happens to the employee weeks or months later.4 Consistent with that plain language, courts have generally analyzed FMLA termination claims under an "interference" theory if the termination at issue occurred before, during, or immediately upon the conclusion of FMLA leave. In contrast, courts have almost uniformly analyzed FMLA termination claims under a "retaliation" theory if the termination at issue occurred weeks or months after the employee's return from leave. Tenth Circuit FMLA cases follow that pattern. See Smith v. Diffee Ford-LincolnMercury, Inc., 298 F.3d 955 (10th Cir. 2002) (termination during FMLA leave analyzed under an interference theory); Bones v. Honeywell Int'l, Inc., 366 F.3d 869 (10th Cir. 2004) (termination in the middle of leave assumed to be FMLA leave; FMLA claim analyzed under interference theory); Tate v. Farmland Indus., 268 F.3d 989, 997 (10th Cir. 2001) (termination during FMLA leave analyzed under an interference theory); Renaud v. Wyoming Department of Family Services, 203 F.3d 723, 732 (10th Cir. 2000) (same); compare Morgan v. Hilti, 108 F.3d 1319, 1325 (10th Cir. 1997) (termination several months after FMLA leave analyzed under a discrimination/retaliation theory). Even many of the cases cited by the plaintiff--all from other jurisdictions--follow that pattern. See e.g., Riggs v. Pilkington, 2005 U.S. Dist. LEXIS 16956 (S.D.Ind. 2005)5 (termination "immediately" on return from leave analyzed as an interference with FMLA right to

4 Of course, an employee who is terminated weeks or months after his return from FMLA leave is not without a remedy. Such an employee
could assert a FMLA retaliation claim under 29 U.S.C. § 2615(a)(2).

5 Attached as Exhibit D to plaintiff's brief.

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reinstatement); Bonar v. Missouri Gaming Co., (W.D.Mo. 2005)6 (same); Parker v. Hahnemann Univ. Hosp., 234 F.Supp.2d 478, 481-2 (D.N.J. 2002) (same); compare Arbia v. Owens-Illinois, Inc., 2003 U.S. Dist. LEXIS 9429 (M.D.N.C. 2003)7 (reprimand 10 days after return to work and subsequent discharge analyzed under retaliation theory).8 In short, it is simply a fact that the plaintiff's termination not only was not a part of his interference claim (as this Court correctly noted), under the circumstances of this case his termination could not have been a part of his interference claim. Sun's motion in limine should therefore be granted. III. CONCLUSION

The only claim left in this case is the plaintiff's claim that Sun interfered with his right to reinstatement upon his return from medical leave by placing him on leave instead of in his former position as SES Americas Controller. The plaintiff's termination is no longer an issue. The testimony of the plaintiff's damages expert, which relates solely to the issue of termination damages, should therefore be excluded.

6 Attached as Exhibit E to plaintiff's brief. 7 Attached as Exhibit C to plaintiff's brief. 8 Other cases cited by the plaintiff--all from other jurisdictions--either directly and expressly reject 10th Circuit FMLA law, e.g., Bachelder v.
America West Airlines, Inc., 259 F.3d 1112, 1124 n.10 (9th Cir. 2001) (rejecting as "erroneous" the 10th Circuit analysis of FMLA), or are wrongly decided in light of 10th Circuit FMLA law.

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Respectfully submitted this 4th day of April, 2006.

s/ Steven J. Merker ___________________________________ Steven J. Merker R. Stephen Hall DORSEY & WHITNEY LLP 370 17th Street, Suite 4700 Denver, Colorado 80202 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 E-mail: [email protected]

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on April 4, 2006, I caused the foregoing document, titled DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFF'S DAMAGES EXPERT, to be electronically filed with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email address: Barry D. Roseman, Esq. Roseman & Kazmiereski, L.L.C. 1120 Lincoln Street, Suite 1607 Denver, CO 80203 [email protected] s/ Steven J. Merker ___________________________________ Steven J. Merker R. Stephen Hall DORSEY & WHITNEY LLP 370 17th Street, Suite 4700 Denver, Colorado 80202 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 E-mail: [email protected]

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