Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01009-EWN-OES MARIAN J. BARCIKOWSKI, Plaintiff, v. SUN MICROSYSTEMS, INC., a Delaware corporation, Defendant. ______________________________________________________________________________ REPLY BRIEF OF DEFENDANT SUN MICROSYSTEMS, INC., IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________

Sun Microsystems, Inc. ("Sun") respectfully submits the following Reply Brief in support of its Motion for Summary Judgment. I. INTRODUCTION. Notwithstanding the nearly impenetrable thicket of mischaracterized and generally immaterial record citations contained in Barcikowski's brief in opposition to Sun's summary judgment motion, the following facts, among others, are undisputed: · In a balance sheet review meeting on September 10, 2001, Robyn Denholm raised several questions about $13.5 million in the accrued revenue account and $2 million in accrued liabilities that appeared on the financial statements of SES Americas, the Sun business unit for which Barcikowski was Controller.

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·

The information received by Denholm in response to those questions led her to conclude that Barcikowski had inappropriately caused those revenue and liability accruals to be reflected on Sun's books.

·

On October 22, 2001, Denholm reported those conclusions to Sun's Chief Financial Officer, as well as her conclusion that Barcikowski, "at a minimum" was guilty of "gross misjudgment/ misconduct." She also reported to Sun's CFO that Barcikowski could not be permitted to be reinstated to the position of SES Americas Controller upon his return from medical leave, and that an "acting" Controller had been appointed to take his place.

·

Sun's CFO asked that another investigation be conducted, this time by Sun's internal audit department. That investigation was conducted after Barcikowski returned from medical leave. The investigator, Paul Wear, concluded that Barcikowski had failed to carry out his fiduciary responsibilities as SES Americas Controller, and reported that conclusion to Denholm.

·

On the basis of her own investigation and that of Paul Wear, Denholm concluded that Barcikowski had failed to carry out his responsibilities as SES Americas Controller, and therefore made the decision to terminate his employment.

·

Based upon Denholm's conclusion that Barcikowski had failed to carry out his responsibilities as SES Americas Controller, the SES Americas 2001 financial statements were restated to reduce 2001 revenues by approximately $12.22 million.

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·

Because the compensation of three SES executives was tied to the revenues of the SES business unit, the restatement of SES Americas 2001 revenues resulted in the reduction of their 2001 compensation. Because they had already received that compensation, they were required to refund to Sun several thousand dollars each in 2001 incentive compensation.

Moreover, there cannot be found anywhere in that thicket any admissible evidence that Barcikowski's termination was the result of discrimination on the basis of his religion, age, claimed or perceived disability, or FMLA leave. Finally, the idea that Sun would restate and reduce the 2001 revenues of its SES Americas business unit by more than $12 million, and demand--and receive--refunds of thousands of dollars of 2001 incentive compensation from three Sun executives, all just as a pretext so it could discriminate against Barcikowski on the basis of his religion, or his age, or a non-existent disability, or the fact that he took FMLA leave is absurd--and, more to the point, unsupported by any evidence in the record of this case. As Sun stated in its opening brief, none of Barcikowski's claims is supported by any evidence. Each of those claims is frivolous. All should be dismissed with prejudice. II. SUN'S REPLY CONCERNING THE UNDISPUTED FACTS. A. Reply Concerning Sun's Statement Of Undisputed Material Facts.

Sun's Statement Of Undisputed Material Facts No. 7: As SES Americas Controller, Barcikowski was responsible for accurately analyzing and reporting the financial results of Sun's SES Americas business unit for incorporation into Sun's publicly issued financial statements.

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Sun's Reply: Barcikowski denied this fact "in part," claiming that he was not responsible for "guaranteeing the accuracy of his reports." However, Barcikowski admitted Sun's Fact No. 5, which states that the SES Americas Controller was "responsible for accurately analyzing and reporting the financial results" of his business unit. Moreover, Barcikowski testified in his deposition that from the beginning of his employment with Sun he occupied a position as a Controller, Barcikowski Dep. 64, partial transcript of the deposition of Marian Barcikowski ("Barcikowski Depo"), attached hereto as Exhibit A-201; and that his job responsibilities as Controller included the following: On a monthly basis assure that revenue is reported correctly that occurred in that time period, to analyze any prior adjustments, or if any adjustments were needed in that monthly period, to assure that by managing on a monthly basis, that by the end of the quarterly close, that all the relevant and accurate information had been analyzed and recorded within the financial books. Barcikowski Dep. 56 (emphasis added). Sun's Fact No. 7 should therefore be deemed admitted. Sun's Statement Of Undisputed Material Facts No. 13: "Accrued" revenues are dollars booked in the financial statements as revenues, but which have not been received by the company. Accordingly, as Denholm testified, "accrued" revenues cannot be reflected in the company's financial statements as revenues unless they are documented and well-substantiated. Similarly, "accrued" liabilities cannot be reflected in the company's financial statements as liabilities unless they are meticulously documented and well-substantiated. Sun's Reply: Barcikowski denied this fact "in part," although it is unclear which "part" is being denied. He refers to Denholm's testimony concerning a reversal of an accrual that
1 The exhibits referenced in this brief are a continuation from Defendant's Motion for Summary Judgment

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occurred while she was employed by Sun in Australia; however, there is no evidence (and Denholm did not testify) that that accrual was improperly documented when originally made, or that it was in any respect similar to the accruals made by Barcikowski. Denholm's testimony therefore provides no basis on which to deny this fact. Barcikowski also refers to alleged reversals of $3 million in accruals in an unrelated matter, but relies for that reference on his own affidavit, which makes clear that his testimony in this regard is inadmissible hearsay. Sun's Fact No. 13 should therefore be deemed admitted. Sun's Statement Of Undisputed Material Facts No. 14: [During the balance sheet review meeting on September 10, 2001,] Denholm was concerned about the size of the accrued revenues and liabilities in the SES Americas financial statements, and about the fact that they did not seem to her to be adequately substantiated. Denholm therefore asked for documentation to substantiate the accrued revenues and liabilities that had been included in the SES Americas financial statements. Sun's Reply: Barcikowski denied this fact, citing to documents and deposition testimony he claims are evidence of a "changed position," "different recollections," and the like. Barcikowski's denial is both disingenuous and without basis. For example, he claims that Sun's EEOC position statement asserted that Denholm questioned "only" accounting irregularities relating to "a debit balance in the amount of $2.2 million, not to any revenue accruals." Barcikowski mischaracterizes Sun's EEOC position statement. The only reference in Sun's EEOC position statement regarding the September 10, 2001, meeting was one sentence stating that Denholm "questioned a number of accounting irregularities" relating to a $2.2 million debit balance--the word "only" was never used, and

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Sun's position statement never purported to completely describe everything that was said at that meeting. Denholm's testimony did not "change" or "contradict" that statement, either; rather, in response to lengthy questioning by Barcikowski's counsel, Denholm testified in much more detail2 regarding the September 10, 2001, meeting. She testified that (1) she asked questions regarding accrued liabilities for SES Americas, the area for which Barcikowski was responsible, Denholm Dep. 44-5 partial transcript of the deposition of Robyn Denholm ("Denholm Depo"), attached hereto as Exhibit A-17; (2) she asked questions regarding accrued revenues for SES Americas and wanted more detail about them, Denholm Dep. 40, 47; (3) regarding the SES Americas accrued revenues, Denholm testified that "the fact that we had some was a concern," Denholm Dep. 39-40. Barcikowski's brief also claims that Denholm testified that she could not recall any questions being asked in that meeting about accrued liabilities, and that Jeffrey Powley "had a different recollection of that meeting." That is false. Denholm testified at length concerning the questions she asked about accrued liabilities, Denholm Dep. 44-6; the testimony cited by Barcikowski was Denholm's statement that she could not recall anyone else asking such questions. Denholm Dep. 45. In different words and in more detail, Powley agreed with Denholm --he testified that for the September 10 meeting, his assignment was to report on a $2 million debit balance that had been accrued in an SES Americas liability account, and that Denholm questioned him about that accrued liability. Powley Dep. 50-2, 55; partial transcript of the deposition of Jeffrey Powley ("Powley Depo"), attached hereto as Exhibit A-18.

2

Her testimony on this subject takes up over 17 pages of deposition transcript, Denholm Dep. 31-47.

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In sum, Barcikowski's denial is without any basis. Sun's Fact No. 14 should therefore be deemed admitted. Sun's Statement Of Undisputed Material Facts No. 15: The information received by Denholm in response to her request was that there was little or no documentation to substantiate the approximately $13.5 million balance in the accrued revenue account, and more than $2 million of accrued liabilities, that Barcikowski had caused to be booked on the SES Americas financial statements. Sun's Reply: Barcikowski denied this fact; however, he relies upon documents and deposition testimony that, even as he has mischaracterized them, are not contrary (or even relevant) to Sun's Fact No. 15. For example, Barcikowski's brief consistently mischaracterizes Denholm's deposition testimony. He asserts that Denholm did not recall receiving any information after August 20, 2001, about any alleged accounting irregularities within SES Americas. That is false; she did not say that. Rather, she testified that no other person came to her with accusations of "alleged accounting irregularities," but that such irregularities were discovered as a result of her balance sheet review meeting on September 10, 2001, and the ensuing investigation. Denholm Dep. 3031. Barcikowski asserts that Denholm recalled seeing a spreadsheet that was documentation for a specific revenue accrual made by Barcikowski. That is false; she did not say that. Rather, Denholm testified that she was given a spreadsheet that she was told was support for certain accruals made by Barcikowski, that she asked her staff to investigate whether the entries in that spreadsheet were correct, and that the ensuing investigation revealed that they were not--that the spreadsheet contained numerous erroneous and duplicate entries, and that the magnitude of those

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errors was on the order of millions of dollars. Denholm Dep. 64, 72-5. Barcikowski asserts that Denholm did not recall receiving any information about any accrued revenue item other than the SunKey accrual before she asked for further analysis of revenue accrual items. That is false; she did not say that. Rather, she testified that she asked her staff to investigate the amount of revenue that Barcikowski had accrued with respect to the SunKey program, that they did so, and reported that the amount Barcikowski had accrued was incorrect and overstated. Denholm Dep. 89-91. More to the point, however, is that none of this--as mischaracterized by Barcikowski-- in any way supports his denial of Sun's Fact No. 15 and that all of it--when read straightforwardly and in context--supports Fact No. 15. Similarly, Barcikowski's brief relies on certain testimony of Doug Brasier in support of his denial of Sun's Fact No. 15, claiming that Brasier "contradicted himself." That is false. Brasier consistently testified throughout his deposition that he found insufficient documentation to support the accruals that Barcikowski had made. E.g. Brasier Dep. 105, 109-10, 117-8; partial transcript of the deposition of Doug Brasier ("Brasier Depo"), attached hereto as Exhibit A-19. Brasier also made clear that Jackson never provided him with anything that Brasier regarded as sufficient documentation for those accruals. Brasier Dep. 226-7 (Jackson "provided us with what he had. In our estimation, it wasn't enough to support the entries."), 228-9 (same). Brasier's testimony, as well, supports Sun's Fact No. 15. Accordingly, Sun's Fact No. 15 should therefore be deemed admitted. Sun's Statement Of Undisputed Material Facts No. 20: As a result of [the investigation initiated by Denholm], Denholm was informed by Brasier and the other Sun employees involved in the investigation that the liability accrual in question was incorrect, and that they could not

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find any documentation sufficient to substantiate the revenue accruals in question, nor could they determine why those accruals had been booked on the SES Americas financial statements or how they had been calculated. Sun's Reply: Barcikowski denied this fact, relying on his denial of Sun's Fact No. 15. For the reasons set forth above, and because Barcikowski's denial of Fact No. 20 does not meet the substance of Fact No. 20, that Fact should be deemed admitted. Sun's Statement Of Undisputed Material Facts No. 21: Denholm also spoke at length with Barcikowski in an effort to determine whether he could adequately substantiate the revenue and liability accruals in question, or explain why those accruals had been booked on the SES Americas financial statements or how they had been calculated. Although Barcikowski claimed to have substantiation for those accruals, he also claimed that the documentation to which he referred was on his computer at his home. Sun's Reply: Barcikowski denied this fact "in part." Apparently, he admits the first sentence of Fact No. 21, but as to the second sentence, he claims that on October 3, 2001, he supplied documentation for the SunKey revenue accrual because that was the only accrual for which he was asked to provide documentation. That is false. Barcikowski testified in his deposition that on October 3, 2001, he was asked about all accruals, not just the SunKey accrual. Barcikowski Dep. 275 (after the meeting on the afternoon of October 3, Barcikowski looked for information regarding "how we did our accruals," "not just revenue accruals but accruals for liabilities"), Barcikowski Dep. 281-2 (that afternoon he searched for information "just on processes" regarding "every entry" for revenue accruals), Barcikowski Dep. 282 (he was asked not only about the SunKey entry, but about another accrual as well). Moreover, Barcikowski's

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denial fails to meet the substance of the second sentence of Fact No. 21. Accordingly, the second sentence of Fact No. 21, as well as the first sentence, should be deemed admitted. Sun's Statement Of Undisputed Material Facts No. 22: Barcikowski never produced documentation demonstrating that the accruals in question were substantiated. Sun's Reply: Barcikowski denied this fact, claiming that he produced documentation for SunKey accrual because that was the only one about which he asked. That is false. As stated above, Barcikowski testified that he was asked about the SunKey accrual, and others as well. He also admitted that the information he supplied related to the "process" by which those accruals were made, not substantiation for the substance of those accruals. Fact No. 22 should be deemed admitted. Sun's Statement Of Undisputed Material Facts No. 23: As a result of that investigation, Denholm concluded that Barcikowski had inappropriately caused approximately $13.5 million in the accrued revenue account and $2 million in accrued liabilities to be reflected on the books of SES Americas for fiscal year 2001. Sun's Reply: Barcikowski denied this fact; however, he relies upon citations to Denholm's testimony that are completely irrelevant to Fact No. 23. The relevant and undisputed fact is that Denholm's conclusions are set forth in her report to Sun's Chief Financial Officer, attached as Exhibit 7 to Sun's brief and as Exhibit R to Barcikowski's brief.3 That report sets forth the conclusion Denholm reached as stated in Fact No. 23, and there is no evidence anywhere in the record that suggests that Denholm concluded anything to the contrary. Fact No. 23 should be deemed admitted.

3

See Sun's Fact No. 24, admitted by Barcikowski.

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Sun's Statement Of Undisputed Material Facts No. 32: Paul Wear, an auditor in Sun's internal audit department, was assigned to investigate Barcikowski's revenue and liability accruals. Wear (who is non-Mormon) had never met Barcikowski, and did not know his religion or age, or whether he had, or claimed to have, any disability. Sun's Reply: Barcikowski denied this fact "in part." However, the citations upon which he relies do not contradict any aspect of Fact No. 32, and it should therefore be deemed admitted. Sun's Statement Of Undisputed Material Facts No. 35: Wear also interviewed Barcikowski. Again, Barcikowski claimed to have documentation related to the accruals at issue on his computer at home, but never produced that documentation to Wear. Sun's Reply: Barcikowski denied this fact "in part." However, the citations upon which he relies do not contradict any aspect of Fact No. 35, and it should therefore be deemed admitted. Sun's Statement Of Undisputed Material Facts No. 36: As a result of his investigation, Wear concluded that Barcikowski had not properly carried out his responsibilities as SES Americas Controller, and that the accruals he had caused to be booked were inappropriate and rendered the SES Americas financial statements for 2001 inaccurate. Sun's Reply: Barcikowski denied this fact "in part." However, the citations upon which he relies do not contradict any aspect of Fact No. 36. Moreover, the relevant and undisputed fact is that Wear's conclusions are set forth in his memo of his interview with Barcikowski, attached as Exhibit U to Barcikowski's brief: Conclusion: revenue accruals were made based on unreliable and incorrect information. Accrual entries that should have been reversed automatically were not. Independent review of supporting documentation prior to booking the journal was not performed which is a violation of a fundamental internal control process whereby no one individual has complete control over a

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transaction permitting intentional or unintentional errors to go undetected. I found no evidence that Mike B gained personally from the error. I do see that there was a lack of attention to detail and a failure of a manager to properly execute their fiduciary responsibility. Fact No. 36 should be deemed admitted. Sun's Statement Of Undisputed Material Facts No. 37: Wear conveyed his conclusions to Robyn Denholm and Lori Walker, a Sun Human Resources representative. Sun's Reply: Barcikowski denied this fact "in part;" however, it is unclear which "part" Barcikowski denied. In any event, Barcikowski apparently admits at least that Wear informed Denholm and Walker that he did not believe that Barcikowski had adequately carried out his fiduciary responsibilities. Accordingly, at least to that extent, Fact No. 37 should be deemed admitted. Sun's Statement Of Undisputed Material Facts No. 38: On the basis of her own investigation and the investigation conducted by Paul Wear, Denholm concluded that the accruals that Barcikowski had booked were inaccurate and unsupported, and that Barcikowski had failed to properly carry out his responsibilities as SES Americas Controller. Sun's Reply: Barcikowski's brief states only that he "admits that Denholm so testified." Because Barcikowski has not supplied any record citations to contradict this Fact, or even denied it, it should be deemed admitted. Sun's Statement Of Undisputed Material Facts No. 45: As a result of the conclusion that Barcikowski had inappropriately caused approximately $13.5 million in the accrued revenues account and $2 million in accrued liabilities to be reflected on the books of SES Americas for

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fiscal year 2001, Sun had to go back and restate the 2001 financial statements for its SES Americas business unit. Sun's Reply: Barcikowski's brief states only that he "admits that Defendant decided to restate the 2001 financial statements for its SES Americas business unit." Because Barcikowski has not supplied any record citations to contradict this Fact, or even denied it, it should be deemed admitted. B. 1. 2. 3. Reply Concerning Barcikowski's Statement Of Undisputed Material Facts. Admitted. Admitted. Denied as a mischaracterization of the undisputed evidence. Barcikowski was

the SES Americas Controller and was responsible for accurately analyzing and reporting the financial results of the SES Americas business unit. Defendant's Statement of Undisputed Facts No. 5, admitted by plaintiff. Denholm's termination letter states that Barcikowski "exercised bad judgment" in booking the entries at issue, and that "this bad judgment resulted in the misstatement of the financial results of the Educational Services organization." Denholm's letter also states that Barcikowski's actions constituted "gross misconduct and demonstrated behavior far below the level of performance, professionalism, and technical expertise required of a finance manager in your position." Exhibit Y to Plaintiff's Brief. 4. Denied as to the first sentence of paragraph 4 as an oversimplification of a large

and complex set of rules, guidelines, and principles. Denied as to the second sentence of paragraph 4: Barcikowski incorrectly accrued revenue relating to the SunKey program by recognizing all revenue attributable to that program at once. Powley Dep. 37, 93; Newell 133-4;

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partial transcript of the deposition of Cindy Newell ("Newell Depo"), attached hereto as Exhibit A-21; Brasier 132-33, 151. 5. Denied: no such "booking of an accrued liability . . . without any sound basis" as

alleged in paragraph 5 ever took place. Hampton Dep. 40-42; partial transcript of the deposition of Michael Hampton ("Hampton Depo"), attached hereto as Exhibit A-22. Moreover, the allegation in paragraph 20 of the plaintiff's affidavit regarding that alleged "booking of an accrued liability" is, on its face, hearsay from an unidentified source, and is therefore not admissible evidence. 6. 7. alleged. 8. Admitted as to the first sentence of paragraph 8. Denied as to the second sentence Admitted. Denied: paragraph 29 of the plaintiff's affidavit does not support the "facts" as

of paragraph 8: the plaintiff was frequently absent from his job location in Sun's Broomfield offices, sometimes as often as three or four times a week, and his frequent absences were causing problems for other Sun employees with whom he worked. Powley Dep. 28; Erdle Dep 67-70; partial transcript of the deposition of Terry Erdle ("Erdle Depo"), attached hereto as Exhibit A23. 9. 10. 11. 12. Admitted. Admitted. Admitted. Denied. In addition to the October 3, 2001, meeting, Denholm and Lori Walker

met with Barcikowski on January 29, 2002, to inform him that his employment would be

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terminated effective as of February 12, 2002. During that meeting, Barcikowski asked for another chance to provide Denholm with an explanation and information relating to the accruals at issue. Denholm agreed to meet with Barcikowski again in two weeks, and said she would revisit the issue of his termination in light of any additional information he provided. Denholm and another Sun employee, Mike Hampton, met again with Barcikowski on February 11, 2002. Barcikowski was given a chance to present any documents and information relating to the accruals at issue. At the end of the meeting, Denholm concluded that he still had not adequately substantiated the revenue and liability accruals in question, or explained why those accruals had been booked on the SES Americas financial statements or how they had been calculated. Accordingly, Denholm informed Barcikowski that her decision to terminate his employment stood. Sun's Statement of Undisputed Material Facts Nos. 40-44, admitted by the plaintiff. 13. C. 1. 2. 3. Admitted. Reply Concerning Barcikowski's Statement Of Disputed Material Facts. Admitted that the asserted "fact" is disputed but denied that it is material. Admitted that the asserted "fact" is disputed but denied that it is material. For two reasons, it is, or should be, undisputed that no such booking of "an

accrued liability . . . without any sound basis" as alleged in paragraph 3 ever took place. First, the only admissible evidence in the record regarding that alleged "booking" is Michael Hampton's testimony that no such booking occurred. Hampton Dep. 40-42. Second, the allegation in paragraph 20 of the plaintiff's affidavit regarding that alleged "booking" is, on its face, hearsay from an unidentified source, and is therefore not admissible evidence. 4. Admitted that the asserted "fact" is disputed but denied that it is material.

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5. 6. 7. 8. 9. 10. 11.

Admitted that the asserted "fact" is disputed but denied that it is material. Admitted that the asserted "fact" is disputed but denied that it is material. Admitted that the asserted "fact" is disputed but denied that it is material. Admitted that the asserted "fact" is disputed but denied that it is material. Admitted that the asserted "fact" is disputed but denied that it is material. Admitted that the asserted "fact" is disputed but denied that it is material. It is, or should be, undisputed that (1) the SunKey revenue accrual for Q4 01 was

not the only accrual that Barcikowski was asked to explain on October 3, 2001; rather, he was asked about all accruals for which he was responsible; (2) Barcikowski therefore attempted to obtain information on all accruals, not merely the SunKey accrual, and (3) the information he provided to Murray and Denholm was information regarding the process by which those accruals were calculated, not supporting documentation for those accruals. Barcikowski Dep. 282-3 (Murray "jumped to some other accrual when he talks about the accounting system. It wasn't just the SunKey accrual."); 281 (Barcikowski spent the afternoon of October 3 gathering data concerning those accruals, but "just on processes"); 286 (later that day, Barcikowski explained to Murray and Denholm "the processes of how we have done accruals for the last three years"). 12. The asserted "fact" is inadmissible hearsay and therefore cannot be considered on

this Motion for Summary Judgment. Moreover, the asserted "fact" is disputed, but not material. 13. The asserted "fact" is inadmissible hearsay and therefore cannot be considered on

this Motion for Summary Judgment. Moreover, the asserted "fact" is disputed, but not material. III. BARCIKOWSKI HAS FAILED TO PRODUCE EVIDENCE THAT THE SUN MANAGER WHO MADE THE DECISION TO TERMINATE HIS EMPLOYMENT REGARDED HIM AS HAVING A DISABILITY; ACCORDINGLY, HIS ADA CLAIM MUST BE DISMISSED.

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Barcikowski apparently concedes that he did not have either "(A) a physical or mental impairment that substantially limits one or more of [his] major life activities" or "(B) a record of such impairment." See 42 U.S.C. § 12102(2)(A) and (B). Rather, he argues only that "management employees of defendant, including Plaintiff's immediate supervisor" regarded him as having such an impairment. See 42 U.S.C. § 12102(2)(C). For at least three reasons, however, that argument is not enough to avoid dismissal of his ADA claims. First, it is undisputed that the Sun manager who made the decision to terminate Barcikowski's employment was Robyn Denholm.4 Yet, Barcikowski does not cite to any evidence in the record, or even suggest, that Denholm regarded him as having any impairment that substantially limited one or more of his major life activities. Second, whether other "management employees of defendant, including Barcikowski's immediate supervisor" regarded him as mentally impaired is immaterial. That is so because: (1) Robyn Denholm, not other "management employees," made the decision to terminate Barcikowski's employment; (2) Barcikowski does not cite to any evidence in the record, or even suggest, that any other "management employees" played any role in the decision to terminate his employment; (3) his Brief does not cite to any evidence in the record, or even suggest, that Brenda Osborne played any role in the decision to terminate his employment; and (4) it is undisputed that Osborne was no longer his supervisor at the time of his termination--in fact, she had been transferred to another position in mid-January 2002, a month before his termination. Denholm Dep. 255.

4

Plaintiff's admission of defendant's Undisputed Fact No. 39.

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Accordingly, because there is no evidence that Denholm, the Sun manager who made the decision to terminate Barcikowski's employment, regarded him as disabled, the plaintiff's ADA claim must be dismissed.5 See Rakity v. Dillon Companies, Inc., 302 F.3d 1152, 1163 (10th Cir. 2002) ("[Plaintiff] cites no legal authority and makes no factual argument explaining how the views of a non-decisionmaker . . . could prove [that defendant] regarded [plaintiff] as disabled for purposes of the Americans with Disabilities Act;" summary judgment for employer affirmed); McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) ("agerelated comments by non-decision makers are not material in showing the [employer's] action was based on age discrimination"); Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1328 (11th Cir. 1998) (comments about plaintiff's physical condition made by non-decisionmaker employee could not prove that employer regarded plaintiff as disabled; summary judgment for employer affirmed). Third, because there is no evidence that Denholm, the decision-maker, regarded Barcikowski as disabled, there cannot be evidence--as there must be--that his termination was "motivated by the fact" that Denholm "regarded [him] as substantially limited from a broad class of jobs by [his] mental impairments." See Doebele v. Sprint United Management Co., 342 F.3d 1117, 1133 (10th Cir. 2003). That lack of evidence in this case is another reason Barcikowski's ADA claim must be dismissed. IV. THERE IS NO EVIDENCE THAT SUN VIOLATED BARCIKOWSKI'S FMLA RIGHTS; ACCORDINGLY, HIS FMLA CLAIMS MUST BE DISMISSED. A.
5

Barcikowski Was Not Entitled To Job Restoration.

This dispositive lack of evidence distinguishes this case from Doebele v. Sprint United Management Co., 342 F.3d 1117 (10th Cir. 2003). In Doebele, the Tenth Circuit reversed the District Court's grant of summary judgment for the employer because there was substantial evidence that those who made the decision to terminate the plaintiff's employment regarded the plaintiff as "substantially limited from a broad class of jobs by her mental impairments." 342 F.3d at 1133. It bears repeating that there is no such evidence here.

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Barcikowski claims that Sun violated his FMLA rights to "job restoration" by failing to allow him to return to work to his Americas Controller position, or an equivalent position, before it terminated his employment. That claim is nonsense. First, Barcikowski had no absolute right to "job restoration" at the end of his FMLA leave. Certainly, the FMLA grants an employee who returns from FMLA leave a right to be restored to his former position or an equivalent position. 29 U.S.C. § 2614(a)(1). However, "[u]nder FMLA, an employee who requests leave or is on leave has no greater rights than an employee who remains at work." Gunnell v. Utah Valley State College, 152 F.3d 1253, 1262 (10th Cir. 1998). Thus, a plaintiff can prevail on a FMLA "entitlement or interference" claim only if he was not restored to his former position "for reasons related to the request for or the taking of FMLA leave." McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1108 (10th Cir. 2002) (no evidence that plaintiff was not restored to former position because she took leave; summary judgment for employer affirmed); accord, Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960-61 (10th Cir. 2002) ("A plaintiff can prevail under an entitlement theory if she was denied her substantive rights under the FMLA for a reason connected with her FMLA leave."); see also Renaud v. Wyoming Dept. of Family Services, 203 F.3d 723, 732-3 (10th Cir. 2000) (plaintiff was terminated during FMLA leave; jury verdict for employer affirmed in light of evidence that plaintiff would have been dismissed regardless of FMLA leave); Second, Barcikowski has presented no evidence that Sun refused to allow him to return to work to his Americas Controller position after his FMLA leave for reasons related to his request for or taking of FMLA leave. Compare McBride, 281 F.3d at 1108 (no evidence that employer failed to restore plaintiff to former position because she took FMLA leave; summary judgment

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for employer affirmed) with Smith, 298 F.3d at 960-61 (plaintiff both presented evidence and argued that she would not have been dismissed had she not taken FMLA leave; jury verdict for plaintiff affirmed). Third, Sun has come forward with substantial and uncontradicted evidence that Robyn Denholm's decision that Barcikowski would not be restored to the Americas Controller position, and would be terminated, had nothing to do with his request for or taking FMLA leave, but was based on Denholm's conclusion that he had booked $13.5 million in accrued revenues and $2 million in accrued liabilities without adequate substantiation or documentation. Indeed, the following facts are undisputed: · Denholm's investigation of Barcikowski's overstatement of SES Americas revenues began before he took FMLA leave, and the initial discovery that Barcikowski had booked $13.5 million in revenues without proper substantiation was made before he took that leave. · The first page of Denholm's October 22, 2001, report to Sun's Chief Financial Officer,6 under the heading "Executive Summary" contains the following statements: (1) Barcikowski's bookings of $13.5 million in accrued revenues and $2 million in accrued liabilities were "invalid;" and (2) "at a minimum, we have concluded gross misjudgment/misconduct on the part of the Controller [Barcikowski]." · Under the heading "Corrective Action," Denholm's report states that "[we] have placed an interim Controller in an acting capacity and have determined that Mike

6

Attached as Exhibit 7 to Sun's opening brief and as Exhibit R to the plaintiff's response brief.

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B [the plaintiff] cannot be reinstated to that role upon his return from Medical leave."7 · Denholm forwarded that report to Sun's Chief Financial Officer, who asked that another investigation be conducted, this time by Sun's internal audit department. The investigation by the internal audit department did not begin until Barcikowski returned from his leave of absence.8 · The Sun employee who conducted that investigation, Paul Wear, had never met Barcikowski, and did not know his religion or age, or whether he had, or claimed to have, any disability.9 After interviewing several Sun employees, including Barcikowski, and reviewing documentation, Wear concluded that Barcikowski had not adequately executed his fiduciary responsibilities, and he conveyed that conclusion to Denholm and to Lori Walker, a Sun Human resources employee.10 · On the basis of her own investigation and the investigation conducted by Paul Wear, Denholm concluded that the accruals that Barcikowski had booked were inaccurate and unsupported, and that he had failed to properly carry out his responsibilities as SES Americas Controller.11

7

Despite this unambiguous statement in Denholm's report, the plaintiff's brief asserts that Denholm's report "at most" discussed "the possibility" that the plaintiff "might" be moved to a different position "in the future." Plaintiff's Brief at p. 16. That assertion--like most of the plaintiff's statements of "fact"--is clearly and demonstrably false. Sun's Statement of Undisputed Facts ¶¶ 24 and 25, admitted by the plaintiff. Sun's Statement of Undisputed Facts ¶ 32, although "denied in part," was not denied as to this statement, which should therefore be deemed admitted. to this statement; ¶ 37, admitted by plaintiff as to this statement.

8 9

10 Sun's Statement of Undisputed Facts ¶ 33, admitted by plaintiff; ¶ 34, admitted by plaintiff as to this statement; ¶ 36, admitted by plaintiff as 11 Sun's Statement of Undisputed Facts ¶ 38. The plaintiff's response to ¶ 38 was that "Plaintiff admits that Ms. Denholm so testified." The
plaintiff did not accompany this statement with any specific reference (or, indeed, any reference at all) to contradict this statement, and did not deny it; accordingly, this statement should be deemed admitted.

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·

Denholm therefore made the decision that Barcikowski's employment should be terminated.12

Thus, the only evidence in the record is that Denholm's decision that Barcikowski would not be restored to the Americas Controller position, and would be terminated, was not based on any reasons related to his request for or his taking of FMLA leave; rather, it was based on her conclusion and that of Paul Wear that he had failed to properly carry out his responsibilities as SES Americas Controller. Accordingly, Barcikowski's FMLA "entitlement" claim must be dismissed. B. Barcikowski Has Failed To Make A Prima Facie Case Of Discrimination Against Him For Having Availed Himself Of FMLA Rights.

Barcikowski claims that his termination was the result of discrimination against him for having taken FMLA leave. Accordingly, to make a prima facie case of discrimination that can survive summary judgment, he must present evidence that there was a causal connection between his termination and his FMLA leave. Morgan v. Hilti, 108 F.3d 1319, 1325 (10th Cir. 1997). Here, the only evidence on which he relies to prove that necessary causal connection is the fact that his termination followed relatively soon after his return from leave. In light of the undisputed facts of this case, however, that is not enough. Specifically, there is no evidence that anyone at Sun disputed Barcikowski's right to take a medical leave, threatened adverse consequences if he took that leave, or made any negative or disapproving comments regarding his leave. Moreover, it is also undisputed that Denholm's investigation of Barcikowski's overstatement of SES Americas revenues began before he took that leave, and that the initial discovery that Barcikowski had booked millions of dollars in
12 Sun's Statement of Undisputed Facts ¶ 39, admitted by plaintiff.

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accrued revenues and accrued liabilities without proper substantiation was made before he took that leave. Accordingly, on the undisputed facts of this case, timing alone is insufficient to raise any inference of causation, and Barcikowski's FMLA discrimination claim must be dismissed. V. THERE IS NO EVIDENCE THAT THE LEGITIMATE NONDISCRIMINATORY REASON ARTICULATED BY SUN FOR BARCIKOWSKI'S TERMINATION WAS A PRETEXT FOR DISCRIMINATION; ACCORDINGLY, EACH OF HIS CLAIMS MUST BE DISMISSED. Sun has explained that its legitimate non-discriminatory reason for Barcikowski's termination was Denholm's conclusion that he improperly caused millions of dollars of revenues and liabilities to be booked on the financial statements of SES Americas. Barcikowski claims that Sun's explanation was a pretext for age discrimination, religion discrimination, disability discrimination and FMLA discrimination, and he offers five arguments for why he thinks that is so. However, some of those arguments are unsupported by any evidence, some would not demonstrate pretext even if any evidence existed to support them, some are flatly contradicted by undisputed evidence--and none of them demonstrate pretext. A. Barcikowski's Claim That Sun's Articulated Reason For His Termination Has Been Contradicted By Its Management Employees Is False.

Barcikowski claims that Sun's articulated reason for his termination was a pretext for discrimination because, he asserts, that reason has been contradicted by the testimony of its management employees. That claim is false--it rests entirely upon testimony taken out of context and mischaracterized, "facts" distorted beyond recognition, the incessant manufacturing of "contradictions" where none exist, and conclusory assertions that those non-existent "contradictions" are "material" when--even if they existed--they would be utterly meaningless.

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For example, Barcikowski claims that Sun's statement to the EEOC regarding the September 10, 2001, balance sheet review meeting was "contradicted" by Denholm's deposition testimony, which in turn, according to Barcikowski, was "contradicted" by the testimony of Jeffrey Powley.13 That is simply and demonstrably false: · The only reference in Sun's statement to the EEOC regarding the September 10, 2001, meeting was one sentence stating that, on that date, Denholm "questioned a number of accounting irregularities" relating to a $2.2 million debit balance. · Denholm's testimony did not "contradict" that statement--indeed, she said precisely the same thing in different words and in more detail. She testified at length14 regarding the September 10, 2001, meeting, and stated, among other things, that (1) she asked questions regarding accrued liabilities for SES Americas, the area for which Barcikowski was responsible, Denholm Dep. 44-5; (2) she asked questions regarding accrued revenues for SES Americas, Denholm Dep. 40, 47; (3) regarding the SES Americas accrued revenues, Denholm testified that "the fact that we had some was a concern," Denholm Dep. 39-40.15 · Powley's testimony did not "contradict" either Denholm's testimony or Sun's EEOC statement--indeed, he said precisely the same thing in different words and in more detail. Powley testified that, at the September 10 meeting, Denholm questioned him regarding SES Americas accrued liabilities; specifically, about a

13 See Plaintiff's Brief at p. 18. 14 Her testimony on this subject takes up over 17 pages of deposition transcript, Denholm Dep. 31-47. 15 Barcikowski's claim that Denholm "could not recall any questions being asked in that meeting about accrued liabilities" is a
mischaracterization of her testimony. Denholm testified that she asked numerous questions about accrued liabilities; she merely could not recall whether anyone else had asked such questions. Denholm Dep 45, lines 1-10.

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$2 million debit balance that had been accrued in an SES Americas liability account. Powley Dep. 50-2, 55. Barcikowski also attempts to contrast Sun's EEOC statement and interrogatory responses that Barcikowski directed his staff to post entries with little or no supporting documentation with Denholm's testimony that she was given a spreadsheet that was support for the accrued revenues at issue. He thus seems to imply that some sort of contradiction exists. Any such implication is false. Although Denholm testified that she was given a spreadsheet that was represented to her "as being support for the accrued revenue," Denholm Dep. 64, she also testified that she asked her staff to investigate whether the entries in that spreadsheet were correct, and that the investigation revealed that they were not--that the spreadsheet contained numerous erroneous and duplicate entries, and that the magnitude of those errors was on the order of millions of dollars. Denholm Dep. 72-5. Barcikowski claims that Denholm admitted in her deposition that he provided "a detailed explanation" of the rationale behind the revenue accruals at issue, and of the "SunKey accruals" in particular. That claim is immaterial. The issue confronting Denholm was not whether Barcikowski could articulate a "detailed" explanation of his "rationale" for booking erroneous accruals; rather, the issue was whether those accruals were adequately supported and correct-- and it is undisputed that Denholm concluded that they were not adequately supported, and not correct. Barcikowski attempts to contrast Sun's statements in its interrogatory responses that Barcikowski was guilty of "gross misconduct" and a failure to adequately perform his duties, with several citations to Denholm's deposition testimony relating to a spreadsheet. The purpose

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of that exercise is unclear, but Barcikowski seems to imply that Denholm did not really believe that Barcikowski was guilty of "gross misconduct" or a failure to adequately perform his duties. That is simply absurd. Every statement Denholm made in her deposition, in her reports to her superiors, and to Barcikowski himself, has been consistent with her belief that Barcikowski erroneously booked millions of dollars in revenue, and that in doing so he committed gross misconduct. Barcikowski attempts to make a great deal of the difference between an "audit" and an "investigation." That difference, if any, is immaterial. Whether Paul Wear conducted an "audit" or an "investigation," the material--and undisputed--facts are that (1) Wear (who is nonMormon) had never met Barcikowski, and did not know his religion or age, or whether he had, or claimed to have, any disability, and was not in Barcikowski's or Denholm's chain of command; (2) in the course of his investigation he interviewed all of the relevant employees including Barcikowski and also reviewed relevant documents, (3) he concluded that Barcikowski had failed to do his job as he was supposed to do, and (4) he communicated that conclusion to Robyn Denholm, as a result of which Denholm decided to terminate Barcikowski's employment. Barcikowski attempts to contrast Denholm's statement in her termination letter that Barcikowski's misstatement of revenues in Sun's financial statements amounted to "gross misconduct" with Denholm's testimony that she "had no reason to disbelieve" a series of statements. Yet, none of those statements is material to the issues in this case, and none of those statements even remotely suggests that Denholm did not truly believe that Barcikowski's inflation of revenues amounted to conduct deserving of termination.

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The bottom line is that from the very beginning, Sun and Denholm have consistently maintained that Barcikowski improperly caused millions of dollars of revenues and liabilities to be booked on the financial statements of SES Americas, and on that basis Denholm made the decision that Barcikowski's employment should be terminated. Nothing Barcikowski has relied upon contradicts that in any meaningful, or material, way. For that reason, his pretext argument based on alleged "contradictions" fails. B. Barcikowski's Claim That Sun "Changed Its Evaluation" Of His Work Performance, Even If True, Is Immaterial.

Barcikowski's claim that Sun "changed its evaluation" of his work performance is evidence of nothing--it is simply immaterial. It is undisputed that Denholm did not assume her position in Barcikowski's chain of command until August 2001, that she shortly thereafter questioned the accruals for which Barcikowski was responsible, and for that reason triggered the investigation that led to Barcikowski's termination. Whether Barcikowski before then had been regarded as an adequate, or superior--or even perfect--employee is simply immaterial. Whether Barcikowski's gross misconduct "could" have been discovered before Denholm assumed that position is also immaterial; the undisputed and material fact is that it was not. Barcikowski's pretext argument therefore fails on this point as well. C. Barcikowski's Claim That Sun Failed To Follow Its Own Procedures Is False.

Barcikowski claims that Sun failed to follow its "Gross Misconduct" policy when it terminated his employment. That policy states that "[a]cts which may be cause for immediate termination with no prior warning include, but are not limited to, the following," and then lists, among others, "any action that, in the opinion of management, could result in substantial damage

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or harm to the interests of the Company or bring disrepute to the Company." It is undisputed that management in the person of Denholm was of the opinion--based upon Denholm's investigation and that of Paul Wear--that Barcikowski overstated revenues by $13 million, and was also of the opinion that Barcikowski's conduct fit quite well within that definition and warranted immediate termination. Indeed, it is difficult to imagine a clearer example of conduct that could harm a company or bring it into disrepute than overstating revenues. Barcikowski's "pretext" argument fails on this point as well. D. Barcikowski's Claim That Direct Evidence Of Discrimination Exists Is False.

Barcikowski claims that both Brenda Osborne and Kerry McGuire regarded him as mentally incompetent, and that Michael Hampton made a comment regarding "Mormons." As to Osborne, Barcikowski's claim is not based on evidence, it is based on hearsay. Moreover, neither Osborne nor McGuire nor Hampton had any role in the decision to terminate Barcikowski's employment. See e.g., McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) ("age-related comments by non-decision makers are not material in showing the [employer's] action was based on age discrimination"). Accordingly, no direct evidence of discrimination exists.

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E.

Barcikowski's Claim That "Other Incoherencies" Exist In Sun's Articulated Reason For His Termination Is False.

Barcikowski claims that the decision that Brasier would fill in for him during the financial close for Q1 02 is evidence of pretext because (1) he was "surprised" by it, and (2) it is not clear to him who made that decision. It ought to, but apparently cannot, go without saying that Barcikowski's level of "surprise" is utterly immaterial to the issue of pretext. Moreover, while it may not be clear to Barcikowski who asked Brasier to complete the Q1 02 financial close in Barcikowski's stead, it is clear on the record that Brenda Osborne made that request. Denholm Dep. 152-3. The decision to officially appoint Brasier to the position of Acting SES Americas Controller was a different decision; that decision was not made by Osborne, Osborne Dep. 135-6; partial transcript of the deposition of Brenda Osborne ("Osborne Depo"), attached hereto as Exhibit A-24, rather, it was suggested by Terry Erdle and made by Denholm. Denholm Dep 170-1. There is, therefore, no lack of clarity in the record on this point--but, more importantly, none of this is material to the issue of pretext. Barcikowski also refers to another case in which Sun is a defendant. That reference, and that case, is immaterial to any issue on this motion. Barcikowski cites to isolated snippets of the deposition testimony of Powley and Brasier as evidence of pretext, apparently relying on the fact that Powley and Brasier attempted to analyze what Barcikowski had done with respect to the SunKey accrual without personally interviewing Barcikowski on that point. That is immaterial--indeed, there is no evidence, and Barcikowski does not argue, that contacting Barcikowski was Powley's or Brasier's responsibility. Rather, the evidence is undisputed that contacting Barcikowski was left to

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Denholm and, later, Paul Wear, and that both Denholm and Wear interviewed Barcikowski extensively. Barcikowski claims that Denholm "faulted" him for not having undertaken steps that he could not perform at that time because he lacked the staff to do so. Yet, his claim is neither supported by any specific reference in the record, nor is in any way material to the issue of pretext. Barcikowski makes reference to a "delivered vs. invoiced revenue accrual," but offers no record citation to support his reference, and fails to explain why that might be evidence of pretext. Barcikowski makes reference to what he claims to have "learned" about a $3 million accrual "without any sound basis" and to a reversal of a liability accrual, but offers no admissible evidence with respect to the former, and no evidence that the latter was in any way comparable to his own failure to perform the responsibilities of his job as SES Americas Controller. These references are neither evidence of pretext nor material in any way to the issues on this motion. Barcikowski points to his claim that Powley moved into his office before January 2, 2002, as evidence that the decision to terminate his employment was made before Paul Wear's investigation. That is false. Powley's office move, as Barcikowski well knows, was nothing more than part of a routine "office shuffle." Barcikowski testified that he was informed before he went on medical leave that an office shuffle was to take place, that it would affect at least four other employees in addition to him, and that one result of that shuffle was that Powley would move into his office. Barcikowski Dep. 167-8. Moreover, the undisputed evidence is that Denholm--who made the decision to terminate--had nothing to do with the office move and did

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not even know that it involved Barcikowski's office. See Denholm Dep. 248-9 ("I knew that there was a reshuffle of offices in the Americas field HQ, yes. I was not aware who had moved into what office, because I didn't know which office was Mike's. . . . I have no idea who authorized it.") In sum, the reason Sun has articulated for Barcikowski's termination is that he improperly caused millions of dollars of accrued revenues and liabilities to be booked on the financial statements of SES Americas, and there is nothing in any of the dozens of pages and hundreds of record citations Barcikowski has proffered to prove that reason is a pretext for discrimination. Although Barcikowski may argue that he was right to book those accruals, that argument is immaterial. The material issue is not whether the decision to terminate Barcikowski was fair, wise, or even correct, but instead is whether Denholm honestly believed the reason for the termination. Rivera v. City and County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004); Kendrick v. Penske Transp. Servs., 220 F.3d 1220 (10th Cir. 2000). Barcikowski has failed to come forward with evidence that the reasons articulated for his termination were pretext, and each of his claims must therefore be dismissed. VI. CONCLUSION. Barcikowski's discrimination claims have no basis in fact or law. The undisputed evidence demonstrates that he was terminated because he improperly booked $13.5 million in the accrued revenue account and $2 million in accrued liabilities on the financial statements of SES Americas. Accordingly, each of Barcikowski's claims should be dismissed with prejudice.

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Respectfully submitted this 26th day of July, 2005.

s/ Steven J. Merker __________________________________ Steven J. Merker R. Stephen Hall DORSEY & WHITNEY LLP 370 17th Street, Suite 4700 Denver, Colorado 80202 Phone: (303) 629-3400 Fax: (303) 629-3450 Email: [email protected] [email protected] Attorneys for Defendant Sun Microsystems, Inc.

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on July 26, 2005, a true and correct copy of the foregoing REPLY BRIEF OF DEFENDANT SUN MICROSYSTEMS, INC., IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was electronically filed with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: 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 Phone: (303) 629-3400 Fax: (303) 629-3450 Email: [email protected] [email protected] Attorneys for Defendant Sun Microsystems, Inc.

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