Free Motion in Limine - 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 MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFF'S DAMAGES EXPERT ______________________________________________________________________________

Sun Microsystems, Inc. ("Sun") respectfully moves this Court 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.1 As grounds for this motion, Sun states as follows: I. INTRODUCTION.

The plaintiff began this case by asserting that he was terminated from his employment with Sun because of disability discrimination, religion discrimination and age discrimination. He also asserted entitlement and retaliation claims under the Family Medical Leave Act ("FMLA"). In its decision on Sun's summary judgment motion, this Court dismissed the plaintiff's disability, religion, and age discrimination claims. This Court also dismissed the plaintiff's

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Local Rule 7.1A Certification: on March 14, 2006, the undersigned sent an e-mail to plaintiff's counsel notifying him that this motion would be filed, and asking whether the plaintiff would oppose the relief sought by this motion. Plaintiff's counsel responded that he would oppose this motion.

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claim that he had been terminated in retaliation for having taken FMLA leave. As to the plaintiff's FMLA entitlement claim, however, this Court denied Sun's summary judgment motion because "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." Order and Memorandum of Decision at p. 32. Thus, all of plaintiff's claims relating to the termination of his employment have been dismissed. The only claim remaining for trial is the plaintiff's FMLA entitlement claim. As to that sole remaining claim, the issues for trial are: (1) whether Sun's placement of the plaintiff on paid administrative leave was tantamount to reinstatement into the position he held prior to his FMLA leave; (2) if not, was the plaintiff placed on administrative leave for reasons not connected to his FMLA leave; and (3) if not, what damages, if any, did the plaintiff suffer as a result of having been placed on administrative leave instead of being reinstated to his position as SES Americas Controller. Because the propriety of the plaintiff's termination is no longer an issue, the damages, if any, he might have suffered as a result of that termination are also no longer an issue. Because Lillydahl opines only as to the damages the plaintiff claims to have suffered as a result of his termination,2 her opinion should be excluded. II. FACTS RELEVANT TO THIS MOTION.3

The plaintiff was employed by Sun as Controller of the "Americas" subdivision of Sun's Educational Services ("SES") business unit. As SES Americas Controller, the plaintiff was

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A copy of Lillydahl's opinion is attached as Exhibit A. Because the attachments to Lillydahl's report are voluminous, they have been omitted from Exhibit A. These facts are taken from the "Factual Background" section of this Court's Order and Memorandum of Decision granting in part and denying in part Sun's summary judgment motion.

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responsible for accurately analyzing and reporting the financial results of Sun's SES Americas business unit. On September 10, 2001, Robyn Denholm, vice president of Sun Enterprise Services, held a meeting to review the balance sheets and financial statements of the business units for which she was responsible including, among others, SES Americas. During that meeting, Denholm learned that SES Americas' financial statements, for which the plaintiff was responsible, reflected several million dollars of accrued revenues and liabilities, and requested more information concerning those accruals. On September 25, 2001, the plaintiff requested, and was granted, permission to take a medical leave of absence from his employment. That medical leave began on September 25. During the plaintiff's absence, Denholm asked several employees, including those who reported to the plaintiff, to investigate the accrued revenues and liabilities that the plaintiff had listed on the SES Americas financial statements. As a result of that investigation, Denholm concluded that the plaintiff had demonstrated gross misjudgment and misconduct in booking those accruals, and so informed Mike Lehman, Sun's chief financial officer. Lehman then requested that Sun's internal audit department perform another investigation. The plaintiff returned from his medical leave on January 2, 2002, and was placed on paid administrative leave. Thereafter, Paul Wear of Sun's internal audit department conducted a second investigation . As a result of his investigation, Wear concluded that the plaintiff had not adequately performed his fiduciary responsibilities, and had exercised poor judgment regarding the accruals. He conveyed that conclusion to Denholm.

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Based on her own investigation and Wear's investigation, Denholm concluded that the plaintiff had failed to carry out his job responsibilities and that the accruals the plaintiff had booked were inaccurate and unsupported. She therefore concluded that the plaintiff's employment should be terminated. On January 29, 2002, Denholm informed the plaintiff that his employment would be terminated effective February 12, 2002. In response to plaintiff's request, Denholm met with the plaintiff on February 11, 2002, and gave him another opportunity to provide information and explanations regarding the accruals. At the end of that meeting, Denholm concluded that the plaintiff had failed to substantiate adequately the accruals and failed to explain how he had calculated them or why he had booked them. She therefore notified the plaintiff that the decision to terminate his employment stood. The plaintiff's employment was terminated effective as of February 12, 2002. III. THE PLAINTIFF'S TERMINATION IS NO LONGER AN ISSUE IN THIS CASE; THEREFORE, EVIDENCE RELATING TO DAMAGES THE PLAINTIFF CLAIMS TO HAVE SUFFERED AS A RESULT OF HIS TERMINATION IS NO LONGER RELEVANT AND SHOULD BE EXCLUDED.

As this Court pointed out in its Order and Memorandum of Decision, courts have recognized two theories of liability under FMLA--the "entitlement" or "interference" theory under 29 U.S.C. section 2615(a)(1), and the "discrimination" or "retaliation" theory under 29 U.S.C. section 2615(a)(2). Under the "interference" theory, an employee may assert a claim that his employer interfered with or refused to provide a right provided by FMLA. Under the "retaliation" theory, an employee may assert a claim that his employer "discharge[d] or in any

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other manner discriminate[d] against [him]" for taking or requesting FMLA leave. See Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960-61 (10th Cir. 2002). Here, the plaintiff asserted both an entitlement theory and a retaliation theory of liability. For his entitlement claim, he 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). For his retaliation claim, he asserted that Sun terminated his employment in retaliation for taking FMLA leave in violation of 29 U.S.C. section 2615(a)(2). On Sun's motion for summary judgment, this Court dismissed the plaintiff's retaliation claim, 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. This Court, however, denied Sun's motion with respect to the plaintiff's interference claim, finding 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." Order and Memorandum of Decision at p. 32. Accordingly, the plaintiff's termination is simply no longer an issue in this case. Every claim based upon his termination has been dismissed. For that reason, evidence as to the damages the plaintiff claims to have suffered as a result of his termination is no longer relevant. Specifically, the opinion of Jane Lillydahl--which relates only to the damages the plaintiff claims to have suffered as a result of his termination--is irrelevant. That opinion, and any testimony relating to that opinion, is therefore inadmissible and should be excluded. The plaintiff, however, may take the position that, not withstanding the dismissal of his FMLA retaliation claim, his termination is still part of this case. Specifically, he may argue that the survival of his interference claim permits him to claim that his termination is somehow

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actionable as an "interference" with his right to reinstatement under 29 U.S.C. section 2615(a)(1). For several reasons, the plaintiff is wrong as a matter of law. First, that argument ignores the reason this Court denied summary judgment on the plaintiff's interference claim--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." Significantly, 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. Accordingly, the "genuine issue of fact" that remains for trial does not relate to the plaintiff's termination; rather, it relates to whether Sun's placement of the plaintiff on paid administrative leave upon his return from FMLA leave was tantamount to reinstatement. Second, the plaintiff's argument ignores the nature of his own claim. His 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. Accordingly, the logical focus of that claim must be upon the position he was given upon his return from leave on January 2, 2002, not on what may have happened to his employment six weeks later. Third, the plaintiff's argument ignores the case law arising under 29 U.S.C. section 2615(a)(1). Specifically, cases arising under section 2615(a)(1) 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. The reason for that is clear--a termination which occurs during FMLA leave prevents reinstatement upon return from that leave. By contrast, a termination which occurs weeks or months after an

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employee's return from FMLA leave simply has no relevance to whether that employee was, or was not, reinstated upon his return from leave. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955 (10th Cir. 2002) is a good example. In that case, the plaintiff's FMLA leave extended from April 30, 1997, through June 16, 1997. However, before she returned from leave, she was terminated on June 3, 1997, thus preventing her from exercising her right to reinstatement upon her return. The Tenth Circuit therefore analyzed that termination under an entitlement theory. See also, e.g., Tate v. Farmland Indus., 268 F.3d 989, 997 (10th Cir. 2001) (termination during FMLA leave analyzed under an entitlement theory); Renaud v. Wyoming Department of Family Services, 203 F.3d 723, 732 (10th Cir. 2000) (termination during FMLA leave analyzed under an entitlement theory); compare Morgan v. Hilti, 108 F.3d 1319, 1325 (10th Cir. 1997) (termination several months after FMLA leave analyzed under a discrimination/retaliation theory). See also 29 C.F.R. § 825.216(a) (shifting the burden of proof to the employer in cases in which employee is laid off during FMLA leave). In sum, the plaintiff in this case no longer has a claim arising out of his termination-- those claims have been dismissed. He has only a claim that Sun interfered with his right to reinstatement by placing him upon administrative leave, instead of restoring him to his position as SES Americas Controller, when he returned from his medical leave on January 2, 2002. Moreover, if he prevails in that claim, his damages are "limited to the benefits [he] would have received had [Sun] not interfered with [his] right to reinstatement following FMLA leave." Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d at 961-2. More to the point, he is not entitled to "termination" damages. Accordingly, Lillydahl's opinion and testimony are irrelevant and must be excluded from evidence at trial.

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VI.

CONCLUSION.

Because the propriety of the plaintiff's termination is no longer an issue, the damages, if any, he might have suffered as a result of that termination are also no longer an issue. Because Lillydahl opines only as to the damages the plaintiff claims to have suffered as a result of his termination, her opinion and testimony are irrelevant and should be excluded. Respectfully submitted this 20th day of March, 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 Email: [email protected]

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 20, 2006, I caused the foregoing document, titled DEFENDANT'S 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 E-mail: [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 Email: [email protected]

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