Free Proposed Pretrial Order - 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,

______________________________________________________________________________ FINAL PRETRIAL ORDER ______________________________________________________________________________ 1. DATE OF CONFERENCE The final pretrial conference in this case was held on March 10, 2006. 2. JURISDICTION Plaintiff claims that this Court has jurisdiction over his claim of interference for the exercise of his protected rights pursuant to 29 U.S.C. § 2617(a)(1). Defendant denies that Plaintiff has any legitimate basis for asserting that claim and invoking the jurisdiction of this Court, but Defendant admits that this Court has jurisdiction to hear this case. 3. CLAIMS AND DEFENSES Plaintiff began working for Defendant on January 28, 1998. In 2001, he served as the Controller -Americas for Sun Educational Services ("SES") Finance, based in Broomfield, Colorado. Brenda Osborne, Plaintiff's first-level supervisor, consistently rated Plaintiff as "exceeds expectations" and as "superior," the latter being the highest overall rating in Defendant's performance appraisal system. She rated Plaintiff as "superior" on or about June 30, 2001. Ms. Osborne also promoted Plaintiff on or about April 23, 2001. Plaintiff worked at least 70-hour weeks in the summer of 2001, working more than one full month without any days off, including on weekends. His work duties were extremely stressful, in part because of the impact of that year's deepening economic recession on SES's revenues and earnings. Plaintiff began working frequently from home and from a satellite office much closer to his home in Castle Rock, Colorado than Defendant's offices in Broomfield, in order to reduce the stress caused by commuting. However, Terry Erdle, the director of SES Americas, was critical of

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the fact that Plaintiff was not spending more of his time at Defendant's Broomfield offices. On September 25, 2001, Plaintiff commenced leave pursuant to the Family and Medical Leave Act ("FMLA"), due to his serious health condition. Plaintiff was prepared to return to work on or about December 26, 2001. However, as a result of the holiday season and pursuant to an agreement between the parties, Plaintiff's return to work was rescheduled to January 2, 2002. Defendant interfered with Plaintiff's rights under the FMLA. Among other things,

Defendant required Plaintiff to work during his FMLA leave; did not provide Plaintiff with an annual pay increase or stock options, as he had received in August or September of the three preceding years; did not restore him to his former job or to an equivalent position when he attempted to return to work on January 2, 2002; and informed him on January 29, 2002, that it was terminating his employment, effective February 12, 2002. Mr. Erdle pressed for Carl Douglas Brasier to replace Plaintiff. During Plaintiff's FMLA leave, Mr. Brasier headed a team that claimed that Plaintiff had erroneously decided to include amounts for accrued revenue and accrued liabilities on SES's books in early July 2001. Those entries for accrued revenue and accrued liabilities were very similar to entries he had made in the past, including entries he had made before his promotion. Defendant undertook no audit or investigation of those accounting entries, and took no disciplinary action against Plaintiff, until after he began his FMLA leave. Based upon the information that Mr. Brasier reported, Robyn Denholm, who was then Plaintiff's second-level supervisor, submitted an e-mail report on October 22, 2001, in which she falsely claimed that Plaintiff was guilty of gross misconduct but did not recommend termination of employment. After Plaintiff attempted to return to work from his FMLA leave, Ms. Denholm terminated his employment. She took no disciplinary action against Ms. Osborne, even though Ms. Osborne approved the accounting entries in question and even though she had full access to the financial information that formed the basis for those accounting entries. (1) b. Defendant: In September 2001 Robyn Denholm questioned a number of accounting entries relating to the Sun Educational Services group. The entries in question were attributable to the .

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plaintiff. Ms. Denholm requested further information as to the basis for the entries. Shortly thereafter, Terry Erdle reported that he had become dissatisfied with the plaintiff's work as Controller and requested that the plaintiff be removed from his position. The plaintiff subsequently took a medical leave of absence from September 25, 2001, to January 2, 2002. During the plaintiff's leave of absence, and in response to Ms. Denholm's request for further information, Brenda Osborne, Kerry McGuire, and others reported that the plaintiff had booked large revenue accruals which could not be explained and for which there appeared to be no backup. Ms. Denholm then began an internal investigation which revealed that the plaintiff had, among other things, erroneously booked revenue accruals totaling over $13 million without sufficient explanation or supporting documentation. Upon the plaintiff's return from medical leave, he was treated the same as if he had not taken that leave. He was reinstated, and his pay and benefits remained the same. A second investigation of his conduct was commenced, this time by Paul Wear. Wear's conclusions as a result of his investigation were essentially the same as those of Ms. Denholm. On January 29, 2002, the plaintiff was notified of the results of Ms. Denholm's and Mr. Wear's investigations, and was informed that his employment with Sun would be terminated effective as of February 12, 2002. The plaintiff asked for, and was granted, another opportunity to provide information sufficient to avoid termination. On February 11, 2002, the plaintiff met with Ms. Denholm and Michael Hampton, another Sun manager, and was given an opportunity to present any additional information he thought relevant. Ms. Denholm concluded that the information presented by the plaintiff was insufficient to explain or justify his conduct, and the plaintiff's employment was therefore terminated as of February 12, 2002. Sun contends that, upon the plaintiff's return from medical leave on January 2, 2002, it complied with 29 U.S.C. § 2615(a)(1). Specifically, the plaintiff was reinstated upon his return from medical leave and received the same pay and benefits as he had received before his leave commenced. The plaintiff was treated as he would have been treated had he not taken medical leave. Because he was entitled to no greater rights than he would have had if he had remained at work, his claim under 29 U.S.C. § 2615(a)(1) must be dismissed.

4. STIPULATIONS

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The parties stipulate as follows: 1. 2. Colorado. 3. 4. Defendant at one time employed Plaintiff. Defendant is an "employer" within the meaning of 29 U.S.C. §2611(4). At Venue is proper in this Court. Defendant does business in the City and County of Broomfield, State of

all times pertinent hereto, Defendant engaged in commerce or in any industry or activity affecting commerce, and employed fifty (50) or more employees for each working day during each of twenty (20) or more calendar workweeks in the current or proceeding calendar year. 5. During 2001, Plaintiff was the Controller-Americas for Sun Education

Services Finance, a line of business of Defendant. 6. 2001. 7. Plaintiff began working for Defendant on or about January 28, 1998. Plaintiff commenced leave pursuant to the FMLA on or about September 25,

Plaintiff was notified on January 29, 2002, that he was going to be terminated from his position of employment with Defendant, effective February 12, 2002. 8. Defendant terminated Plaintiff's employment, effective February 12, 2002. 5. PENDING MOTIONS None. 6. WITNESSES a. (1) Plaintiff's Non-Expert Witnesses: The following witnesses will be present at trial: (a) Marian J. Barcikowski (to be contacted only through counsel), to testify

concerning his employment for Defendant, his qualifications; his work performance for Defendant; Defendant's decision to terminate his employment; Defendant's discriminatory treatment of him; his damages; and all other related matters. (2) Witnesses who may be present at trial if the need arises: (a) Tim Andrews, current address and telephone number unknown, concerning

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the variability and unreliability of the Scholar software, the conduct of Terry Erdle; and all other related matters. Plaintiff currently expects him to testify in person. (b) Linda Ardizzone, Golden, Colorado 80401, (303) 273-5301, to testify

concerning the variability and unreliability of the Scholar software, and all other related matters. Plaintiff currently expects her to testify in person. (c) Pat Baker, Sun Microsystems, Inc., current address and telephone number

unknown, concerning the variability and unreliability of the Scholar software, and all other related matters. May testify by deposition. (d) Robyn Denholm, Vice President of Enterprise Services Finance, Sun

Microsystems, Inc., 4150 Network Circle, Santa Clara, CA 95054, to testify under cross-examination concerning the balance sheet review meeting held on September 10, 2001; the e-mailed report she sent to Mike Lehman; her meeting with Paul Wear on January 16, 2002; her meetings with Plaintiff; and all other related matters. May testify by deposition. (e) Barry Jackson, 500 El Dorado Boulevard, Broomfield, Colorado 80021, to

testify concerning the variability and unreliability of the Scholar software, Defendant's management practices; and all other related matters. Plaintiff currently expects him to testify in person. (f) Larry Kaplan, 29204 Wild Rose Drive, Evergreen, Colorado 80439, (303)

674-6508, to testify concerning the variability and unreliability of the Scholar software, the conduct and credibility of Brenda Osborne and Teresa Ribeiro; and all other related matters. Plaintiff currently expects him to testify in person. (g) Sheryl Kitchen, Sun Microsystems, Inc., 500 El Dorado Boulevard,

Broomfield, Colorado 80021, to testify concerning the variability and unreliability of the Scholar software; and all other related matter. Plaintiff currently expects her to testify in person. (h) Kris Nickeson, current address and telephone number unknown, concerning

the variability and unreliability of the Scholar software, and all other related matters. Plaintiff currently expects him to testify in person. (i) Brenda Osborne, World Wide Controller Sun Enterprise Services, Sun May testify by

Microsystems, Inc., 4150 Network Circle, Santa Clara, CA 95054, to testify under cross-examination concerning Mr. Barcikowski's employment, performance and termination.

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deposition. (j) Paul Wear, Audit Business Manager, Sun Microsystems, Inc., 4150 Network

Circle, Santa Clara, CA 95054, to testify under cross-examination concerning the investigation that he conducted on January 15 and 16, 2006. May testify by deposition. (k) Jackie Wiles, Sun Microsystems, Inc., 500 El Dorado Boulevard, Broomfield,

Colorado 80021, to testify concerning the variability and unreliability of the Scholar software, and all other related matters. Plaintiff currently expects her to testify in person. (l) (m) Any witness listed by Defendant. Any witness whose testimony may be necessary or desirable for

impeachment or rebuttal purposes. (n) Any witness whose testimony may be necessary or desirable to lay a

foundation for the admission of any exhibit into evidence. b. (1) Plaintiff's Expert Witnesses: Witnesses who will be present at trial: (a) Jane Lillydahl, Ph.D., 2150 Linden Drive, Boulder, Colorado 80304, (303)

449-1447, to testify concerning Plaintiff's economic losses and all other related matters. Plaintiff currently expects her to testify in person. (2) Witnesses who may be present at trial if the need arises: None. c. (1) Defendant's Non-Expert Witnesses: The following witnesses will be present at trial: (a) Robyn Denholm, Sun Microsystems, Inc., 4150 Network Circle, Santa Clara, California 95054. Ms. Denholm will testify to her employment with Sun, the balance sheet review meeting of September 2001, the investigation into revenue and liability accruals which took place in late 2001 and her conclusions as a result of that investigation, the plaintiff's return from medical leave and the fact that he was reinstated with no change to his pay or benefits and was treated the same as if he had not taken medical leave, the investigation conducted by Mr. Wear, the termination of the plaintiff's employment, and matters relevant to the plaintiff's claim. (Will testify in person).

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(2)

Witnesses who may be present at trial if the need arises: (a) Paul Wear, Sun Microsystems, Inc., 4150 Network Circle, Santa Clara,

California 95054. Mr. Wear may testify to his employment with Sun, his investigation into certain revenue and liability accruals which took place in early 2002, his conclusions as a result of that investigation, the termination of the plaintiff's employment, and matters relevant to the plaintiff's claim. (Will testify in person). (b) Terry Erdle, Sun Microsystems, Inc., 500 El Dorado Boulevard, Broomfield,

Colorado 80021. Mr. Erdle may testify to his employment with Sun, his interactions with the plaintiff, his communications to others within Sun regarding the plaintiff, the effect of the plaintiff's job performance on his own job performance and on his compensation, the termination of the plaintiff's employment, and matters relevant to the plaintiff's claim. (Will testify in person). (c) Carl D. Brasier, Sun Microsystems, Inc., 500 El Dorado Boulevard,

Broomfield, Colorado 80021. Mr. Brasier may testify to his employment with Sun, his interactions with and regarding the plaintiff, his participation in the investigation into revenue and liability accruals which took place in late 2001, and matters relevant to the plaintiff's claim. (Will testify in person). (d) Jeff Powley, Sun Microsystems, Inc., 500 El Dorado Boulevard, Broomfield,

Colorado 80021. Mr. Powley may testify to his employment with Sun, his interactions with and regarding the plaintiff, his participation in the investigation into revenue and liability accruals which took place in late 2001, and matters relevant to the plaintiff's claim. (Will testify in person). (e) Michael Hampton, Sun Microsystems, Inc., 500 El Dorado Boulevard, Mr. Hampton may testify to his employment with Sun, his

Broomfield, Colorado 80021.

interactions with and regarding the plaintiff, his participation in the investigation into revenue and liability accruals which took place in late 2001, his participation in a meeting with Ms. Denholm and the plaintiff in February 2002, and matters relevant to the plaintiff's claim. (Will testify in person). (f) Cindy Newell, Sun Microsystems, Inc., 500 El Dorado Boulevard,

Broomfield, Colorado 80021. Ms. Newell may testify to her employment with Sun, her interactions with and regarding the plaintiff, her participation in the investigation into revenue and liability accruals which took place in late 2001, and matters relevant to the plaintiff's claim. (Will testify in person).

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(g)

Kerry McGuire, Sun Microsystems, Inc., 500 El Dorado Boulevard,

Broomfield, Colorado 80021. Mr. McGuire may testify to his employment with Sun, his interactions with and regarding the plaintiff, his participation in the investigation into revenue and liability accruals which took place in late 2001, and matters relevant to the plaintiff's claim. (Will testify in person). (h) Jennifer Phillips, Sun Microsystems, Inc., 500 El Dorado Boulevard,

Broomfield, Colorado 80021. Ms. Phillips may testify to her employment with Sun, her interactions with and regarding the plaintiff, her participation in the investigation into revenue and liability accruals which took place in late 2001, and matters relevant to the plaintiff's claim. (Will testify in person). (i) (j) Any witness listed by Plaintiff. Any witness whose testimony may be necessary or desirable for

impeachment or rebuttal purposes. (k) Any witness whose testimony may be necessary or desirable to lay a

foundation for the admission of any exhibit into evidence.

d. (1)

Defendant's Expert Witnesses: The following witnesses will be present at trial: None.

(2)

Witnesses who may be present at trial if the need arises: None. 6. EXHIBITS

a. (1)

List of Exhibits: Plaintiff: Attached. In addition, Plaintiff may offer into evidence: (a) (b) Any exhibit listed by Defendant. Any document that may be necessary or desirable for impeachment

or rebuttal purposes. (c) One or more summary and/or demonstrative exhibits.

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(2)

Defendant: Attached. In addition, Defendant may offer into evidence: (a) (b) Any exhibit listed by Plaintiff. Any document that may be necessary or desirable for impeachment

or rebuttal purposes. (c) b. One or more summary and/or demonstrative exhibits.

Copies of listed exhibits must be provided to opposing counsel no later than five

days after the Final Pretrial Conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served (by electronic means, hand delivery or facsimile) no later than eleven days after the exhibits are provided. 8. DISCOVERY Discovery has been completed. 9. SPECIAL ISSUES Whether Defendant is barred from asserting an affirmative defense that it did not include in its Answer, viz., that Plaintiff was treated as he would have been treated had he not taken medical leave. The Defendant contends that, if it was necessary to plead as an affirmative defense that the plaintiff was treated as he was upon his return from medical leave for reasons not connected with his leave, the defendant stated such a defense in its Answer; specifically, in its Eleventh Defense. 10. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Preliminary Pretrial Order and the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 11. TRIAL AND ESTIMATED TRIAL TIME; TRIAL PREPARATION CONFERENCE a. Trial is to a jury. The estimated trial time is five (5) days. The situs of trial will be

Denver, Colorado. There are no other orders pertinent thereto.

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b. c.

Trial date: ______________________. Trial preparation conference and time: ____________________, ________. At the

trial preparation conference, counsel are directed to comply with the Instructions Concerning Preparation for Trial Preparation Conference delivered to all parties at the Final Pretrial Conference DATED this __________ day of March, 2006. BY THE COURT: ____________________________________ EDWARD W. NOTTINGHAM United States District Judge FINAL PRETRIAL ORDER TENDERED FOR REVIEW: ROSEMAN & KAZMIERSKI, LLC DORSEY & WHITNEY LLP

By: s/Barry D. Roseman ___________ Barry D. Roseman 1120 Lincoln Street, Suite 1607 Denver, Colorado 303/839-1771 Attorneys for Plaintiffs

By: s/Steven J. Merker__________________ Steven J. Merker R. Stephen Hall Republic Plaza Building Suite 4700 370 17th Street Denver, Colorado 80202-5647 303/629-3400 Attorneys for Defendant