Free Response to 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-1009-EWN-MEH MARIAN J. BARCIKOWSKI, v. SUN MICROSYSTEMS, INC., a Delaware corporation, Defendant. ______________________________________________________________________________ PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFF'S DAMAGES EXPERT ______________________________________________________________________________ COMES NOW the Plaintiff, by and through his attorneys, Roseman & Kazmierski, LLC, and respectfully submits the following Response to Defendant's Motion in Limine to Exclude the Testimony of Plaintiff's Damages Expert (hereinafter, "Defendant's Motion in Limine"): SUMMARY OF ARGUMENT Plaintiff's FMLA interference claim includes, and always has included, the allegation that Defendant interfered with his FMLA interference rights by terminating his employment. Plaintiff made that clear in his summary judgment answer brief and in the parties' Final Pretrial Order. This Court did not grant summary judgment to Defendant on Plaintiff's FMLA interference/wrongful discharge claim. Its ruling on summary judgment about termination of employment was limited to the issue of pretext, which is not relevant for an FMLA interference claim. It is questionable whether Defendant even moved for summary judgment on Plaintiff's FMLA interference claim. Even if it did so, this Court's summary judgment ruling does not limit the damages Plaintiff can seek under that claim. In denying what it assumed to be Defendant's motion for summary judgment on Plaintiff's FMLA interference claim, this Court did not rule on that part of that claim which is based squarely on Defendant's termination decision. In addition, the federal courts have repeatedly recognized FMLA interference/wrongful discharge claims arising from discharge decisions made after or on the same day as the return to work of the plaintiffs in those cases. Defendant's Motion in Limine is a thinly disguised dispositive motion, filed long after the parties' deadline for filing dispositive motions. It is not based on any new legal authority. Plaintiff,

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STATEMENT OF THE CASE Plaintiff expects to present the following evidence at trial that is relevant to Defendant's Motion in Limine: September 10, 2001, Robyn Denholm, Defendant's vice president of finance for services, presided over a "balance sheet review" meeting. The purpose of that meeting was to discuss that entity's forecast of its business sheet for the first quarter of Fiscal Year 2002 (hereinafter, "Q102") before September 30, 2001, the end of that quarter. Ms. Denholm had assumed the position of vice president of finance for services less than two weeks previously, on August 28, 2001, following her employment for Defendant in Australia. Ms. Denholm, whose office was located in the company's headquarters in Santa Clara, California, participated in that meeting by telephone. Plaintiff was not present at that meeting. During that meeting, Ms. Denholm learned for the first time that the organization for which she served as vice president of finance had accrued revenue and accrued liabilities on its balance sheet. She asked to obtain some more detail about those accounting entries. At that time, Plaintiff was the controller for Sun Educational Services ("SES") Americas. Ms. Denholm was his second-level supervisor on September 10, 2001. supervisor was Brenda Osborne, who held the title of controller for SES. In early April 2001, Plaintiff had recommended that Defendant recognize $3,761,782.14 in a SunKey revenue accrual and another $2,503,617.83 for a Delivered v. Invoice revenue accrual for the third quarter of Fiscal Year 2001 (hereinafter, "Q301"). Ms. Osborne approved those revenue accruals. No employee of Defendant questioned any of those revenue accruals and did not reverse any of them. Defendant promoted Plaintiff and gave him a pay increase on or about April 23, 2001. Ms. Osborne gave Plaintiff an overall performance rating of "Superior" ­ the highest performance rating that he could have received ­ on June 30, 2001. In early July 2001, Plaintiff recommended that Defendant recognize $6,247,547.48 in a SunKey revenue accrual and another $4,734,824.50 for a Delivered v. Invoice revenue accrual for the fourth quarter of Fiscal Year 2001 (hereinafter, "Q401"). Plaintiff based both of those recommendations on computerized information he had received, summarizing data about thousands of individual transactions. Plaintiff decided not to use an analysis that had been prepared by Cindy Newell, a business analyst with a high school education who had taken some accounting classes in Plaintiff's immediate

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college and whom Plaintiff did not directly supervise. Plaintiff based his decision in substantial part on Ms. Newell's failure to create any audit trail of the adjustments that she had made in Defendant's computerized financial reports. Plaintiff did not have the resources to do any more detailed analysis in the short amount of time between June 30, 2001, the end of Q401, and approximately July 5, 2001, the date of the financial close for Q401. Ms. Osborne approved those revenue accruals and all other revenue and liability accruals that Mr. Barcikowski recommended be recognized for Q401. Until September 10, 2001, no employee of Defendant questioned any of these accounting entries. Information about those accounting entries and about the supporting documentation was contained in Defendant's computer system and in documents in the offices in which Plaintiff and his team worked. That electronic information and those documents were available to any of the employees in Plaintiff's chain of command. During the two weeks following September 10, 2001, neither Ms. Denholm nor Ms. Osborne asked Plaintiff to provide any information or explanation about any of the revenue or liability accruals that he had recommended for Q401. time. On September 17, 2001, Terry Erdle, the operational director of SES Americas, expressed his interest in having Plaintiff reassigned from his job as controller for SES Americas. One of the major reasons he was dissatisfied with Plaintiff's work performance was that he felt that Plaintiff was not spending a sufficient amount of time at Defendant's offices in Broomfield, Colorado, where both Plaintiff and Mr. Erdle were based. Plaintiff was performing much of his work out of his home in Castle Rock, Colorado, and out of Defendant's satellite offices in the Greenwood Village office complex, located approximately ten miles from his home. He was doing so because he was working 70-hour weeks that summer, at one point working 33 straight days without any rest, and wanted to reduce the stress resulting from the 40-mile one-way commute between his home and Defendant's offices in Broomfield. On September 25, 2001, due to the stress under which he was working at that time, Plaintiff experienced symptoms of dizziness and significantly elevated blood pressure. He sought medical No employee of Defendant audited, investigated or did any further analysis about any of those revenue or liability accruals during that

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attention and commenced leave under the Family and Medical Leave Act (hereinafter, "FMLA") on that date. Mr. Erdle recommended that Carl Douglas Brasier, an ambitious 30-year old employee, fill in for Plaintiff during his absence. Mr. Brasier worked with a team of other employees to perform the financial close for Q102 for SES Americas. He did not include in that process Barry Jackson, the most senior and experienced employee in Plaintiff's team and the person, other than Plaintiff, who was most knowledgeable about the financial close for previous quarters. After the completion of the financial close for Q102, Mr. Brasier and a team he had assembled analyzed revenue and liability accruals that Plaintiff had recommended be recognized for Q401. Again, Mr. Brasier did not ask Mr. Jackson to participate in that process. On or before October 17, 2001, Mr. Brasier provided a verbal report to Ms. Denholm about that analysis, in which he claimed that he could not find supporting documentation for the revenue accruals Plaintiff had recommended for Q401. Mr. Brasier never prepared a written report on that subject. At no time did Defendant request, conduct or receive the results of any financial audit for any of the revenue or liability accruals in question. After receiving that verbal report, Ms. Denholm sent an e-mail message to Mike Lehman, Defendant's chief financial officer. While she stated in that document that she had concluded that the booking of those revenues constituted "gross misconduct," she did not base that conclusion on the definition of that term in Defendant's personnel policies. Ms. Denholm recommended that Plaintiff not be reinstated to his position of controller of SES Americas upon his return from FMLA leave. However, she did not recommend that Defendant terminate Plaintiff's employment. Nothing further happened with respect to any of those Q401 revenue or liability accruals during the remainder of Plaintiff's FMLA leave. However, Defendant required Plaintiff to work during that FMLA leave, including requiring him to participate in meetings until approximately 8:00 p.m. on October 3, 2001. In addition, Defendant did not give Plaintiff an annual pay increase, as he had received in August or September of each of the previous three years. The last annual pay increase that Plaintiff received was on September 25, 2000 ­ exactly one year before he began his FMLA leave. Plaintiff attempted to return to work on January 2, 2002, the first work day that he could do so following the completion of his FMLA leave and following Defendant's closure of its offices

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during the Christmas-New Year's holiday season.

When he arrived at Defendant's offices in

Broomfield, Colorado, he was surprised to discover that Jeffrey Powley, a subordinate employee and friend of Mr. Brasier, had moved into the office Plaintiff had occupied before his FMLA leave. He discovered that no office had been assigned to him and that his documents and personal property had been boxed. Plaintiff was not able to reach Ms. Osborne, since she was on vacation. No one else was able to provide him with any information about his status on that date. Plaintiff left for home that day, and the next day was told not to return to work until further notice. At no time did Ms. Osborne, Ms. Denholm or any other employee of Defendant inform Plaintiff, either verbally or in writing, that he was on administrative leave. On January 15 and 16, 2002, Paul Wear, an internal auditor employed by Defendant and based in Santa Clara, California, conducted what he has described as an "investigation" of the revenue and liability accruals that Plaintiff had recommended recognizing for Q401. That investigation consisted entirely of employee interviews. Mr. Wear did not review any financial or accounting records, nor did he conduct any audit about these accounting entries. He received conflicting information about the propriety of those accounting entries, with both Plaintiff and Mr. Jackson informing him that they were appropriate. On January 17, 2002, Mr. Wear met with Ms. Denholm and with Lori Walker, a Human Resources representative employed by Defendant. terminate Plaintiff's employment. Ms. Denholm informed Plaintiff on January 29, 2002, that his employment would be terminated, effective February 12, 2002. Plaintiff requested that he meet with her before February 12 to explain why the revenue and liability accruals for which he was being criticized were proper. On February 11, 2002, he provided a detailed explanation about the basis for those accruals in a meeting with Ms. Denholm and with Mike Hampton, the financial planning and analysis manager for Sun Enterprise Services. After that meeting, Ms. Denholm decided not to change her decision. Plaintiff had received no disciplinary action for any reason before he began his FMLA leave. Defendant did not terminate Ms. Osborne's employment. In fact, she remains an employee of Defendant to this day. Ms. Denholm decided at that meeting to

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ARGUMENT I. PLAINTIFF'S FMLA INTERFERENCE CLAIM IN THIS CASE INCLUDES, AND ALWAYS HAS INCLUDED, THE ALLEGATION THAT DEFENDANT INTERFERED WITH HIS FMLA RIGHTS BY TERMINATING HIS EMPLOYMENT. As this Court has explained previously (Order and Memorandum of Decision, Feb. 23, 2006, p. 30), courts construing the FMLA have recognized two theories of recovery ­ the entitlement or interference theory and the retaliation or discrimination theory. An interference claim is based on 29 U.S.C. § 2615(a)(1), which provides that it "shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." A retaliation claim is based on 29 U.S.C. § 2615(a)(2), which provides that it "shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." This Court has recognized that Plaintiff has asserted claims against Defendant under both § 2615(a)(1) and § 2615(a)(2) (Order and Memorandum of Decision, p. 30). 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 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

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exercise of protected rights surely "tends to chill" an employee's willingness to exercise those rights. Id. at 1124; Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 147 (3d Cir. 2004). Retaliation is not the only impermissible reason for termination of employment under the FMLA. Smith, 298 F.3d at 961. A jury can find that an employee would not have been dismissed had he not taken FMLA leave based, among other things, on the employee's prior satisfactory service, the employer's failure to subject that employee to serious discipline before his FMLA leave, and the timing of the termination decision. See id., citing with approval Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (observing that one and one-half months between the protected activity and dismissal "may, by itself, establish causation"). The timing of a termination decision could support a finding that the employee would not have been fired absent his taking of leave if, for example, an employer based a post-FMLA leave termination decision on incidents of which that employer had been aware prior to the employee's taking that FMLA leave. See Arban v. West Publ'g Corp., 345 F.3d 390, 402 (6th Cir. 2003). Defendant's Motion in Limine is based on its erroneous assertion that, in his FMLA interference claim, Plaintiff "asserted that Sun failed to reinstate him to the position he held before his FMLA leave began (or its equivalent) in violation of 29 U.S.C. section 2615(a)(1)" (Defendant's Motion in Limine, p. 5). Defendant further has argued that it was only in Plaintiff's FMLA retaliation claim that Plaintiff alleged that Defendant had violated that statute by terminating his employment (Id.). That is not how Plaintiff pleaded his FMLA interference claim. Plaintiff alleged in his Complaint that he began working for Defendant on or about January 28, 1998, and that he "was notified on January 29, 2002, that he was going to be terminated from his position of employment with Defendant, effective February 12, 2002." (Complaint, p. 3, ¶ 13). Plaintiff alleged that he commenced FMLA leave on or about September 25, 2001 (Id., ¶ 15). section of his Complaint further alleged as follows: 17. Plaintiff's physician originally scheduled Plaintiff to return to work on or about December 26, 2001. Due to the holiday season and pursuant to an agreement between the parties, Plaintiff's return to work was rescheduled to January 2, 2002. 18. Defendant did not restore Plaintiff to his former job or to an equivalent position when he attempted to return to work on January 2, 2002. The "Factual Allegations"

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Defendant did not inform Plaintiff of his status until January 29, 2002, when it told him that it would terminate his employment, effective February 12, 2002. Plaintiff's Complaint contained four claims for relief. The first, unnumbered paragraph in his Fourth Claim for Relief adopted and incorporated by reference the allegations contained in the previous paragraphs. In addition, Plaintiff alleged: 31. Defendant retaliated against Plaintiff, and/or interfered with, restrained or denied Plaintiff's exercise of or his attempt to exercise, any right provided under the FMLA. 32. As a direct and proximate result of such actions, Plaintiff has been, is, and in the future will be deprived of income in the form of wages and prospective retirement benefits and other benefits due him as an employee, in a sum to be proven at trial. Plaintiff did not allege that Defendant interfered with his FMLA rights only by denying him the right of job restoration granted by 29 U.S.C. § 2614(a)(1). That claim includes the allegation that Defendant interfered with Plaintiff's FMLA rights by terminating his employment. Paragraph No. 32 did not differentiate between Plaintiff's FMLA interference and retaliation claims in alleging that, as a result of Defendant's retaliation and interference, Plaintiff had been and continued to be "deprived of income in the form of wages and prospective retirement benefits and other benefits due him as an employee" (Id., p. 5, ¶ 32). The parties' Scheduling Order contained similar allegations. The section of that document that summarized Plaintiff's claims alleged that Plaintiff commenced leave pursuant to the FMLA on or about September 25, 2001, that he was prepared to return to work on or about December 26, 2001, and that due to the holiday season and pursuant to an agreement between the parties, his return to work was rescheduled to January 2, 2002 (Scheduling Order, p. 1, ¶ 2.a.(3)). That summary then stated: 4. Defendant did not restore Plaintiff to his former job or to an equivalent position when he attempted to return to work on January 2, 2002. It did not inform him of his status until January 29, 2002, when it told him that it would terminate his employment, effective February 12, 2002 The paragraph in that document that summarized the relief Plaintiff was seeking stated, without differentiating between Plaintiff's FMLA interference and retaliation claims: 7. Plaintiff is seeking back pay and back benefits; reinstatement or front pay and front benefits; liquidated damages; compensatory damages; punitive damages; attorneys' fees, costs, expert witness fees, disbursements, pre- and postjudgment interest; and such other relief as this Court may order.

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Plaintiff made it clear in the brief he filed in opposition to Defendant's Motion for Summary judgment that he was alleging that Defendant had interfered with his FMLA rights by terminating his employment. Even though it is questionable whether Defendant moved for summary judgment on Plaintiff's FMLA interference claim,1 Defendant argued that "the timing of [Plaintiff's] termination alone is insufficient to carry his burden of proving that Barcikowski's FMLA leave caused his termination" (Sun Microsystems Inc.'s Brief in Support of Motion for Summary Judgment, p. 16). In support of that proposition, Defendant cited Gunnell v. Utah Valley State College, 152 F.3d 1253, 1262 (10th Cir. 1998), a case in which the plaintiff's only FMLA claim was an interference claim. Out of an overabundance of caution, Plaintiff assumed that Defendant was seeking summary judgment on his FMLA interference claim. His opposition brief pointed out that an employer's intent is irrelevant for an FMLA interference claim and that the employer has the burden of proving, for such a claim, that it would have terminated the plaintiff's employment regardless of the plaintiff's request for, or taking of, FMLA leave (Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment, pp. 14-15). Plaintiff cited two Tenth Circuit FMLA interference decisions in support of that proposition. Smith, 298 F.3d at 963; Bones v. Honeywell Internat'l, Inc., 366 F.3d 869 (10th Cir. 2004). That brief then discussed the evidence supporting Plaintiff's argument that Defendant's decision to terminate his employment was made only after he attempted to return to work (Id., pp. 15-16). He argued that he had established, "at a minimum, a prima facie case of interference with his FMLA rights and discrimination against him for having exercised those rights" (Id., p. 16). In its summary judgment reply brief, Defendant argued for the first time that Plaintiff had no right to job restoration at the end of his FMLA leave (Reply Brief in Support of Sun Microsystems, Inc.'s Motion for Summary Judgment, p. 19). In addition, it argued for the first time that its termination decision was not based on Plaintiff's request for or taking of FMLA leave (Id., pp. 20-22). Defendant cited Smith, an FMLA interference case, in that section of its reply brief (Id., p. 20). It is clear, therefore, not only that Plaintiff's FMLA interference claim is based at least in part on Defendant's decision to terminate his employment, but also that Defendant understands that
1

See argument infra at 11.

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claim to include an allegation of wrongful termination of employment. Having argued that this Court should dismiss Plaintiff's FMLA claims because Plaintiff allegedly had not presented sufficient evidence of a nexus between its termination decision and his FMLA leave, it is disingenuous, to put it mildly, for Defendant to argue that Plaintiff's FMLA interference claim was not based even in part on its decision to terminate his employment. There can be no doubt now that Plaintiff's FMLA interference claim includes the allegation that Defendant unlawfully terminated his employment. The parties' Final Pretrial Order expressly alleges that Defendant interfered with Plaintiff's rights under the FMLA by not restoring him to his former job or to an equivalent position when he attempted to return to work on January 2, 2002, and "by terminating his employment, effective February 12, 2002" (Final Pretrial Order, p. 2, ¶2.a.(5)). The Final Pretrial Order controls the subsequent course of this action and the trial, and provides that the "pleadings will be deemed merged herein" (Id., p. 6, ¶ 10). II. THIS COURT DID NOT DISMISS PLAINTIFF'S CLAIM THAT DEFENDANT INTERFERED WITH HIS FMLA RIGHTS BY TERMINATING HIS EMPLOYMENT. Defendant has argued that this Court dismissed Plaintiff's FMLA retaliation claim, allegedly "holding that the Plaintiff failed to raise any issue of material fact in support of his claim that he had been terminated because he took FMLA leave" (Defendant's Motion in Limine, p. 5). Since this Court granted summary judgment in favor of Defendant on Plaintiff's FMLA retaliation, age discrimination, religious discrimination and disability discrimination claims, Defendant contends that "[e]very claim based upon [Plaintiff's] termination has been dismissed" (Id.). As a result, according to Defendant, evidence concerning the damages Plaintiff suffered as a result of the termination of his employment is no longer relevant (Id.). That argument is based upon three false premises. First, in dismissing Plaintiff's FMLA retaliation claim, this Court did not hold that Plaintiff failed to raise any issue of material fact in support of his claim that Defendant had terminated his employment because he took FMLA leave. Instead, this Court held that Plaintiff had failed to present sufficient admissible evidence that would support a finding by a reasonable finder of fact that Defendant's proffered reason for its termination decision was pretextual (see Order and Memorandum of Decision, pp. 34-35). This Court applied the analysis it had used in reaching the same conclusion on the issue of pretext for Plaintiff's claim of age discrimination (see id., pp. 15-24). That analysis was in turn based substantially on Tenth

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Circuit authority that the test on the issue of pretext is the good-faith belief of the employer. Rivera v. City and County of Denver, 365 F.3d 912, 925 (10th Cir. 2004); McKnight v. Kimberly Corp., 149 F.3d 1125, 1129 (10th Cir. 1998). In addition, this Court noted that "Plaintiff's evaluation of his own performance is not relevant to this court's analysis regarding pretext" and that the evidence Plaintiff had presented could not "serve to discredit Defendant's good-faith belief in Denholm's and Wear's investigations and the results thereof" (Id., p. 35). This Court cannot use that same burden-shifting analysis in connection with Plaintiff's FMLA interference claim. Smith, 298 F.3d at 963. Instead, the test is whether Defendant would have terminated Plaintiff's employment even if he had not exercised or attempted to exercise his FMLA rights. Id. That is a very different standard than the one used by this Court in its decision to dismiss Plaintiff's FMLA retaliation claim and the other claims he has made in this case. Second, it is questionable whether Defendant even moved for summary judgment on Plaintiff's FMLA interference claim. Defendant devoted less than one page of its 19-page summary judgment opening brief to both of Plaintiff's FMLA claims. The three-part test that Defendant stated that Plaintiff was required to meet in order for his "FMLA claim to survive summary judgment" (Sun Microsystems Inc.'s Brief in Support of Motion for Summary Judgment, p. 15) is the test for a prima facie case for an FMLA retaliation claim. Both of the cases Defendant cited in support of that three-part test ­ Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1184 (10th Cir. 2005), and Morgan v. Hilti, Inc., 108 F.3d 1319, 1325 (10th Cir. 1997) ­ involved only FMLA retaliation claims. Defendant's entire argument was that Plaintiff allegedly "cannot prove a prima facie case of FMLA discrimination" (Sun Microsystems, Inc.'s Brief in Support of Motion for Summary Judgment, p. 16). That argument was addressed only to Plaintiff's FMLA retaliation claim, not to his FMLA interference claim. Clearly, if Defendant did not move for summary judgment on that claim, this Court's summary judgment ruling does not limit the damages Plaintiff can claim for Defendant's alleged interference with his FMLA rights. As discussed in more detail supra at 6-10, that interference claim includes, and always has included, the allegation that Defendant interfered with those rights by terminating Plaintiff's employment. Third, even assuming for the sake of argument that Defendant moved for summary judgment on Plaintiff's FMLA interference claim, this Court's summary judgment ruling does not

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limit the damages Plaintiff can seek in connection with that claim. This Court, which assumed that Defendant in fact had moved for summary judgment on that claim, denied summary judgment in its entirety on that interference claim (Order and Memorandum of Decision, pp. 30-32). Defendant argued in its summary judgment reply brief, inter alia, that there was substantial evidence that Ms. Denholm's termination decision "had nothing to do with [Plaintiff's] request for or taking FMLA leave" (Reply Brief of Defendant Sun Microsystems, Inc., in Support of Motion for Summary Judgment, p. 20) and that "the only evidence in the record is that Denholm's decision that Barcikowski ... would be terminated ... was not based on any reasons related to his request for or his taking of FMLA leave" (Id., p. 22). By denying in its entirety any part of Defendant's Motion for Summary Judgment that may have been directed toward Plaintiff's FMLA interference claim, this Court rejected Defendant's argument that Plaintiff had presented insufficient evidence to support his claim that Defendant interfered with his FMLA rights by terminating his employment. Defendant's argument that this Court has dismissed all of Plaintiff's claims based on the termination of his employment is both frivolous and groundless. Before Defendant filed its Motion in Limine, Plaintiff's attorneys explained to defense counsel (Exh. A, p. 1) that this Court had not dismissed Plaintiff's FMLA interference/wrongful discharge claim. stated earlier it would make (Id., p. 2). III. DEFENDANT'S ARGUMENTS ARE WRONG AS A MATTER OF LAW. Defendant clearly was aware that Plaintiff claims that this Court did not dismiss his FMLA interference/wrongful discharge claim. Defendant, referring obliquely to the e-mail message that Plaintiff's attorneys sent to defense counsel on March 14, 2006 (Exh. A), stated that Plaintiff "may take the position that, notwithstanding the dismissal of his FMLA retaliation claim, his termination is still part of this case" and that Plaintiff "may argue that the survival of his interference claim permits him to claim that his termination is somehow actionable as an `interference' with his right to reinstatement under 29 U.S.C section 2615(a)(1)" (Defendant's Motion in Limine, pp. 5-6). Defendant then contended that Plaintiff "is wrong as a matter of law" (Id., p. 6) for three reasons. Plaintiff will discuss those reasons below. First, Defendant claimed that the argument that it, correctly, anticipated the Plaintiff would make "ignores the reason this Court denied summary judgment on the plaintiff's interference claim After receipt of that communication, Defendant presented in its Motion in Limine the same baseless arguments it had

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­ that `a genuine question of fact exists as to whether Defendant's placement of Plaintiff on paid administrative leave is tantamount to reinstatement into his position prior to his FMLA leave'" (Id.). Since, according to Defendant, "this Court found that no genuine issues of fact existed regarding the plaintiff's termination, and therefore dismissed all of the plaintiff's termination claims, ... the `genuine issue of fact' that remains for trial does not relate to the plaintiff's termination" (Id.) (emphasis in original). This Court appears to have assumed that Plaintiff's FMLA interference claim was based solely on Defendant's refusal to reinstate him to his former position or to an equivalent position upon his return from FMLA leave (see Order and Memorandum of Decision, p. 31). This Court most likely made that assumption because Defendant did not address Plaintiff's FMLA interference claim in its summary judgment opening brief. In any event, this Court did not base its decision on any of the arguments that the parties presented either in Plaintiff's summary judgment answer brief or in Defendant's summary judgment reply brief. Instead, this Court stated that "neither party offers any information as to the nature or status of administrative leave under Defendant's policies" and that "the parties do not specify Plaintiff's salary, benefits or rights while on administrative leave as compared to under active employment under Defendant" (Id., p. 32).2 As a result of the parties' failure to present any information about that issue, this Court found "that a genuine question 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" (Id.). In that ruling, this Court found that a genuine issue of material fact exists as to that part of Plaintiff's FMLA interference claim that is based on Defendant's failure to restore him to his former position or to an equivalent position upon his return from FMLA leave. This Court did not rule upon that part of Plaintiff's FMLA interference claim that is based squarely on Defendant's termination decision. Second, Defendant contends that Plaintiff's "claim is that Sun interfered with his right to be reinstated to the same position (or its equivalent) that he held before his FMLA leave" (Defendant's

2

In a footnote to its decision, this Court stated that "Defendant flatly does not address Plaintiff's claim for entitlement or Plaintiff's employment status upon return from FMLA leave in its submissions" (Order and Memorandum of Decision, p. 32 n. 9). This Court further asserted that "Plaintiff states on that on January 3, 2002, he `was told not to return to work until further notice'" (Id.).

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Motion in Limine, p. 6). As Plaintiff has explained in detail supra at 6-10, that allegation is only part of Plaintiff's FMLA interference claim. That claim includes, and always has included, the allegation that Defendant interfered with Plaintiff's FMLA rights by terminating his employment. Third, Defendant claims that Plaintiff's argument ignores the case law under 29 U.S.C. § 2615(a)(1), and specifically argues that cases arising out of that subsection "which have found employee terminations to constitute interference with the FMLA right to reinstatement have dealt with terminations occurring during the employee's FMLA leave, and not terminations ­ such as the termination in this case ­ which occurred weeks or months after the end of that leave" (Id.) (emphasis in original). Defendant has cited three Tenth Circuit decisions for the proposition that "a termination which occurs weeks or months after an employee's return from FMLA leave simply has no relevance to whether that employee was, or was not, reinstated upon his return from leave" (Id., pp. 6-7) (emphasis in original). Defendant's argument is without merit. The federal courts have repeatedly recognized FMLA interference claims based on employers' termination decisions that were made after the plaintiffs in those cases had returned to work from FMLA leave. See, e.g., Kauffman v. Fed. Express Corp., 426 F.3d 880, 885-87 (7th Cir. 2005) (court reversed grant of summary judgment to employer on FMLA interference claim where plaintiff was discharged after return to work from FMLA leave); Johnson v. Mithun, 401 F. Supp. 2d 964 (D. Minn. 2005) (court denied employer's motion for summary judgment where plaintiff was discharged approximately two months after return to work from FMLA leave); Toeller v. Wis. Dept. of Corrections, 390 F. Supp. 2d 792, 796-97 (E.D. Wis. 2005) (court denied employer's motion for summary judgment where plaintiff was discharged after return to work from FMLA leave); Tuttle v. Eats & Treats Ops., Inc., 10 Wage & Hour Cas. 2d (BNA) 1820, 2005 U.S. Dist. LEXIS 15302 (D. Kan. 2005) (court denied employer's motion for summary judgment and plaintiff's motion for partial summary judgment where plaintiff was discharged after return to work from FMLA leave);3 Arbia v. Owens-Illinois, Inc., 8 Wage & Hour Cas. 2d (BNA) 1345, 2003 U.S. Dist. LEXIS 9429 (M.D.N.C. 2003) (court denied employer's motion to dismiss where plaintiff received written reprimand ten days after return to work from FMLA leave and was subsequently discharged).4
3 4

A copy of that opinion is attached to this Response as Exh. B. A copy of that opinion is attached to this Response as Exh. C.

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In addition, other decisions have recognized FMLA interference claims where the plaintiffs were discharged on the same day that they returned to work from FMLA leave. See, e.g., Riggs v. Pilkington, 2005 U.S. Dist. LEXIS 16956 (S.D. Ind. 2005) (court denied employer's motion for summary judgment);5 Bonar v. Missouri Gaming Co., Case No. 03-6158-CV-SJ-GIF (W.D. Mo. 2005) (court denied employer's motion for summary judgment);6 Parker v. Hahnemann Univ. Hosp., 234 F. Supp. 2d 478, 489-92 (D.N.J. 2002) (court denied employer's motion for summary judgment). The FMLA does not provide, in 29 U.S.C. § 23615(a)(1), that an interference claim is limited to an adverse employment action occurring during, but not after, an employee's FMLA leave. While 29 C.F.R. § 825.216(a) states that the burden of proof is shifted to the employer where the employee is laid off during FMLA leave, nothing in that subsection or in any other Department of Labor regulation suggests that an FMLA interference/wrongful discharge claim is limited to a termination decision made before an employee attempts to return to work. Nor is there any language in any other cases cited by Defendant that would support this type of artificial distinction. If anything, the fact that the Tenth Circuit, in Smith, 298 F.3d at 961, cited with approval that court's earlier opinion in Anderson, 181 F.3d at 1179 ­ in which it observed that one and one-half months between protected activity and dismissal "may, by itself, establish causation" ­ demonstrates that an FMLA interference claim can be based on a discharge decision made within one and one-half months, and possibly longer, after the end of an employee's FMLA leave. 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. What is important is whether that termination decision interfered with or restrained the exercise or attempted exercise of an employee's FMLA rights, not whether it was made before or after the employee had exercised or attempted to exercise those rights. IV. DEFENDANT'S MOTION IN LIMINE IS A THINLY DIGUISED DISPOSITIVE MOTION, FILED LONG AFTER THE DEADLINE FOR FILING DISPOSITIVE MOTIONS. The Scheduling Order in this case set a deadline of January 28, 2005, for the parties to file any dispositive motion. Defendant filed a Motion for Summary Judgment, and this Court has decided that motion. This Court did not rule, in its Order and Memorandum of Decision, that
5 6

A copy of that opinion is attached to this Response as Exh. D. A copy of that opinion is attached to this Response as Exh. E.

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Plaintiff could not present any evidence in connection with his FMLA interference claim about the economic damages he suffered as a result of the termination of his employment. Defendant's Motion in Limine asks this Court to dispose of that claim for damages. Defendant is not relying on any controlling authority handed down after the parties' deadline for filing dispositive motions. It has not requested an extension of time to file this dispositive motion. Instead, it asks this Court to enter a new ruling on the false premise that this Court has already has made that ruling. This Court should not countenance Defendant's blatant attempt to circumvent the deadlines this Court set more than one and one-half years ago. This Court should deny Defendant's Motion in Limine. CONCLUSION For the reasons stated herein, Plaintiff submits that this Court should deny Defendant's Motion in Limine to Exclude the Testimony of Plaintiff's Damages Expert.

ROSEMAN & KAZMIERSKI, LLC s/Barry D. Roseman BARRY D. ROSEMAN 1120 Lincoln Street, Suite 1607 Denver, Colorado 80203 303/839-1771 Attorneys for Plaintiff

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CERTIFICATE OF SERVICE The undersigned hereby certifies that, on the twenty-seventh day of March 2006, a true and correct copy of the above and foregoing Plaintiff's Response to Defendant's Motion in Limine to Exclude the Testimony of Plaintiff's Damages Expert 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