Free Statement - District Court of Colorado - Colorado

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

Document 62

Filed 02/21/2006

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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 STATEMENT OF SUPPLEMENTAL AUTHORITY ______________________________________________________________________________ COMES NOW the Plaintiff, by and through his attorneys, Roseman & Kazmierski, LLC, and respectfully submits the following Statement of Supplemental Authority herein: 1. Kelly v. Metallics West, Inc., 410 F.3d 670, 675 n. 5 & 676 (10th Cir. 2005) ("A person is Plaintiff,

regarded as disabled when `(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.'"; "The ADA is concerned with safeguarding the employee's livelihood from adverse actions taken on the basis of `stereotypic assumptions not truly indicative of the individual ability' of the employee."). 2. Rodriguez v. ConAgra Grocery Prods. Co., ___ F.3d ____, 17 Am. Disabilities Cas.

(BNA) 790, 2006 U.S. App. LEXIS 565, at **18-21 (5th Cir. 2006)1 (granting partial summary judgment for plaintiff on "regarded as" disability claim, based in part on employer's interrogatory response that plaintiff was not qualified for any other positions with it, its withdrawal of plaintiff's job offer for the express reason that it viewed him as unfit for an entry-level position, and its human resources manager's conclusion, based on a medical assessment, that plaintiff's diabetes was uncontrolled). 3. Josephs v. Pac. Bell, 432 F.3d 1006, 1016 (9th Cir. 2005) (sufficient evidence to support

jury's finding that defendant viewed plaintiff as having a mental disability that substantially limited him in the major life activity of working, based on evidence that employees of defendant considered

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A copy of that opinion is being filed with this Statement.

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

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plaintiff "unemployable because he had spent time in a `mental ward' and might `go off' on a customer," defendant's review and discussion during a grievance meeting of newspaper reports that included statements that plaintiff was a "mentally disordered offender" who had been under psychiatric care, testimony that a supervisor said defendant wanted to "eliminate the possibility" of employing someone such as plaintiff, and defendant's rejection of union proposal that plaintiff be offered a position that did not involve unsupervised access to customers' homes because "people can still walk by"). 4. D'Angelo v. ConAgra, Inc., 422 F.3d 1220, 1229 (11th Cir. 2005) (plaintiff was regarded

as substantially limited in the major life activity of working, based on plant manager's conclusion that plaintiff's vertigo prevented her from working in the vicinity of moving equipment). 5. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125-26 (10th Cir. 2005) (plaintiff

established genuine factual dispute regarding pretext based in part on her raising "doubts as to the accuracy and reliability of the audit data" that constituted the dominant reason for defendant's termination decision). 6. Zisumbo v. McLeodUSA Telecomms. Servs., Inc., 2005 U.S. App. LEXIS 25567, at **18-

25 (10th Cir. 2005)2 (plaintiff established genuine issue of material fact on question of pretext based on inconsistencies between reasons given by defendant to EEOC and in court to justify demotion decision). 7. Zuniga v. Boeing Co., 133 Fed. Appx. 570, 577-78 (10th Cir. 2005), cert. denied, ___ U.S.

____, 126 S. Ct. 1051, 163 L. Ed.2d 858 (2006) (genuine issue of material fact on question of pretext based in part on inconsistencies in testimony of manager who ranked plaintiff lower than other, lessexperienced employees). 8. Plotke v. White, 405 F.3d 1092, 1103-04 (10th Cir. 2005) (genuine issue of material

fact on question of pretext based in part on employer's use of post-hoc reasons for termination of plaintiff's employment and credibility issues arising from conflicting evidence concerning the point in time at which the termination decision was made). 9. Hurlbert v. St. Mary's Health Care Sys., Inc., ___ F.3d ____, 2006 U.S. App. LEXIS

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A copy of that opinion is being filed with this Statement.

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3733, **29-34 (11th Cir. 2006)3 (genuine issue of material fact as to whether decision to terminate plaintiff's employment was made before plaintiff submitted request for FMLA leave, based on irregularities in termination process and employer's deviation from its own standard procedures in preparing separation notice). 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 twenty-first day of February 2006, a true and correct copy of the above and foregoing Plaintiff's Statement of Supplemental Authority 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

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A copy of that opinion is being filed with this Statement.