Free Brief in Support of Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:03-cv-02481-LTB-CBS SUSAN VON FEIST, Plaintiff, v. CELESTICA CORPORATION, Defendant.

DEFENDANT CELESTICA CORPORATION'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendant Celestica Corporation ("Celestica"), pursuant to Fed. R. Civ. P. 56(c), respectfully submits this Memorandum of Law in Support of its Motion for Summary Judgment. I. INTRODUCTION

In this case, Plaintiff Susan Von Feist ("Plaintiff") bases her claims against Celestica, her former employer, upon Celestica's failure to accomplish the impossible ­ namely ­ to accommodate an alleged disability that, by Plaintiff's own admission, has precluded her from seeking employment in any capacity since her termination from Celestica in May 2002. As explained below, Plaintiff's claims against Celestica fail on a number of fronts. First, Plaintiff cannot establish that she is a "qualified" individual with a disability as required to sustain her claims under the Americans With Disabilities Act of 1990 ("ADA"). Additionally, all available evidence leads to the inescapable conclusion that Celestica terminated Plaintiff based on a report prepared by Plaintiff's treating physician concluding that Plaintiff's workers compensation claim "appear[ed] somewhat fraudulent," and terminating Plaintiff's case for

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"fraud." By contrast, no evidence supports Plaintiff's argument that Celestica terminated her for filing an OSHA complaint that Celestica's decisionmaker did not know about at the time he terminated her, or for filing a workers' compensation claim months in advance of her termination. For these reasons, which are discussed in detail, below, Celestica is entitled to summary judgment in its favor on Plaintiff's claims for violation of the ADA, wrongful discharge in violation of public policy for filing a complaint with OSHA, and wrongful discharge in violation of public policy for filing a workers' compensation claim. II. STATEMENT OF UNDISPUTED MATERIAL FACTS

For purposes of summary judgment only, the following facts are undisputed: A. Plaintiff's Employment With Celestica. 1. Celestica is a world leader in the delivery of innovative electronics manufacturing

services (EMS), and delivers integrated solutions in design, global order fulfillment, repair services, and supply chain management to the computer and communications markets, as well as to emerging and divergent markets. [Ex. 1 (Affidavit of Eric McCallum), ¶ 2.] 2. At all times relevant to the events alleged in Plaintiff's Complaint, Celestica

maintained a facility in Westminster, Colorado. [Ex. 1, ¶ 3.] The Westminster plant provided systems integration, warehouse and global fulfillment distribution, systems assembly, and test services for one of Celestica's customers. [Ex. 1, ¶ 3.] 3. From May 2001 through her termination in May 2002, Plaintiff was employed by

Celestica as an hourly, full-time Production Operator 2, Grade 2 in its manufacturing division. [Ex. 1, ¶ 4 & Attachment A (Job Description) to Ex. 1]

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4.

Plaintiff's primary duties involved assembly, testing, packaging and shipping of

Celestica's products. [Ex. 2 (Deposition of Susan Von Feist) at 58:2-59:7, 65:2-16.] Throughout her employment with Celestica, Plaintiff's position required lifting, standing, reaching, sitting, and concentrating on written instructions. [Ex. 2 at 58:2-59:7.] 5. Prior to working for Celestica, Plaintiff had worked in manufacturing for Lucent

Technologies beginning in August of 1998. [Ex. 2 at 60:1-20; Ex. 3 (EEOC Charge).] When Lucent spun off its manufacturing division to Avaya, Plaintiff became an employee of Avaya. [Ex. 2 at 63:12-64:13.] In May of 2001, Celestica purchased the manufacturing division of Avaya's Westminster operation, and Plaintiff became an employee of Celestica. [Complaint, ¶ 15; Ex. 2 at 63:23-64:9.] B. Celestica's Business Conduct Guidelines. 6. As a condition of her employment with Celestica, Plaintiff read and agreed to

abide by Celestica's Business Conduct Guidelines (the "Guidelines"). [Attachment C (Business Conduct Guidelines) to Ex. 1.] 7. The Guidelines set forth Celestica's expectations that its employees conduct

themselves honestly and fairly, and maintain high standards of ethical behavior. [Attachment C to Ex. 1] The Guidelines expressly put employees on notice that "[a] violation of any Celestica Guideline may result in disciplinary action, up to and including dismissal." [Attachment C to Ex. 1] Plaintiff read and agreed to comply with the Guidelines. [Ex. 2 at 191:15-192:11; Attachment C to Ex. 1; Ex. 4 (Conditions of Employment signed by Plaintiff).] C. The February 1, 2002 Incident. 8. On February 1, 2002, Plaintiff was scheduled to work the 3:00 p.m. ­ 11:00 p.m.

shift at Celestica. [Ex. 2 at 77:13-15.] When Plaintiff arrived at work, Plaintiff noticed an odor

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similar to paint. [Ex. 2 at 78:20-79:3.] Initially, the smell was not out of the ordinary, but by approximately 4:00 p.m., it had become stronger. [Ex. 2 at 78:23-79:9, 80:17-81:1.] Shortly before 6:00 p.m., Plaintiff's colleague, Rodney Frank, reported the odor to a supervisor, Brad Schultz. [Ex. 2 at 82:1-5.] Mr. Schultz gave Mr. Frank and Plaintiff permission to go outside and get fresh air. [Ex. 2 at 83:14-18.] 9. Plaintiff and Mr. Frank proceeded outside, but quickly became cold. [Ex. 2 at

84:12-18.] Plaintiff returned to the building to retrieve their coats, then went back outside. [Ex. 2 at 84:18-21.] A manager then appeared and informed Plaintiff and another employee that Celestica was evacuating employees to the cafeteria. [Ex. 2 at 84:21-85:1.] Upon re-entering the building, Plaintiff felt sick and passed out. [Ex. 2 at 85:16-24.] Plaintiff was transported to a local hospital for examination, but was released without admission that same night. [Ex. 2 at 89:7-90:18.] 10. Plaintiff later learned that the odor came from a penetrating sealant being used on

the cement floor in the space directly above Celestica's, which Avaya occupied. [Ex. 2 at 87:1323.] 11. The doctor who examined and released Plaintiff following her initial hospital visit

on February 1, 2002 assured her that she would not suffer any long-term problems from the exposure. [Ex. 2 at 90:12-18.] D. Plaintiff's Workers' Compensation Visits And Leave. 12. On February 2, 2002 ­ the day after Plaintiff had been exposed to sealant fumes

and taken to the hospital ­ Plaintiff attended a union-sponsored "casino night" event in Blackhawk, Colorado. [Ex. 2 at 96:2-24.] While at the casino, Plaintiff smoked cigarettes and drank alcohol. [Ex. 2 at 97:22-98:8].

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13.

On February 3, 2002, Plaintiff did not feel well, and returned to the hospital. [Ex.

2 at 98:18-100:20; Ex. 5 (2/3/04 Emergency Room Report).] Plaintiff was again released without admission, and was advised to visit a workers' compensation physician the next day, February 4, 2002. [Ex. 2 at 100:5-18; Ex. 5, p. 3.] 14. On February 4, 2002, Plaintiff passed out and returned to the hospital. [Ex. 2 at

100:19-101:2.] The hospital contacted Eileen Lanners, RN ("Ms. Lanners"), Celestica's nurse, who met Plaintiff at the hospital. [Ex. 2 at 102:14-103:8.] Ms. Lanners authorized Plaintiff's absence from work on February 4, and offered to reschedule Plaintiff's appointment with the workers' compensation physician for February 5. [Ex. 2 at 102:14-103:12.] Plaintiff was once again released from the hospital without admission. [Ex. 2 at 101:22-102:5.] 15. On February 5, 2002, Plaintiff was examined by Dr. Julie Parsons, a workers

compensation physician. [Ex. 2 at 106:4-7.] Finding no physical condition to explain the symptoms about which Plaintiff complained, Dr. Parsons released Plaintiff to work on February 6. [Ex. 2 at 121:4-9.] Plaintiff was unhappy about being released to work. [Ex. 2 at 121:10122:5.] Plaintiff believes that she should have not have returned to work in any capacity on February 6, and acknowledges that no accommodations would have allowed her to return to work that day. [Ex. 2 at 123:13-21.] 16. Nonetheless, on February 6, 2002, Plaintiff returned to work, although she left

early. [Ex. 2 at 124:2-18.] 17. On February 7, 2002, Plaintiff was scheduled to see another physician, Dr. Orent,

for a toxicology evaluation. [Ex. 2 at 126:10-18; Ex. 6 (2/7/02 Toxicologic Consultation).] After examining Plaintiff, Dr. Orent concluded that "In my opinion this patient had mild hydrocarbon exposure. There is no evidence toxic levels were approached. The patient

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describes herself as very sensitive and I believe that a good deal of her response is based on this perception. . . . While it is possible that this patient had some irritant effect and even possibly some sedative effect from the mild hydrocarbon exposure, I anticipate no long-lasting brain damage." [Ex. 6, p. 3.] 18. On February 13, 2002, Plaintiff saw Dr. Parsons. [Ex. 7 (2/13/02 Physician's

Report of Workers' Compensation Injury).] Although Dr. Parsons was again unable to find anything wrong with Plaintiff, Plaintiff informed Dr. Parsons that she had fallen at work, and therefore Dr. Parsons concluded that Plaintiff should not return to work to protect herself and others. [Ex. 7, p. 3.] Before the February 13 appointment, Plaintiff met with an attorney who told her that if she "so much as stubbed her toe at Celestica, there would be implications and they would own Celestica." [Ex. 2 at 140:7-19.] Plaintiff may have related this statement to Dr. Parsons. [Ex. 2 at 140:7-19; Ex. 7, p. 3.] 19. Dr. Parsons placed Plaintiff on workers compensation leave beginning February

13, 2002. [Ex. 7; Ex. 2 at 142:4-12.] 20. From February 13, 2002 through Plaintiff's termination in May 2002, no doctor

was able to identify any physical condition to explain the symptoms described by Plaintiff. [Attachment B (5/6/02 Special Report) to Ex. 1.] E. Plaintiff Is Cleared To Return To Work, With Restrictions. 21. Plaintiff remained on workers' compensation leave through April 2002. [Ex. 2 at

175:13-19, 160:13-161:5.] 22. Then, on April 24, 2002, Dr. Parsons released Plaintiff to modified work starting

April 30 with the following restrictions: no lifting; no carrying and pushing more than 10

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pounds; working only half days with sitting duty; and no more than 15 minutes of walking per hour. [Ex. 8 (4/24/02 Progress Note).] 23. By Plaintiff's own admission, lifting, standing and reaching were essential

functions of every job Plaintiff had previously performed at Celestica. [Ex. 2 at 59:8-12.] 24. On April 24, 2002, Plaintiff contacted Ms. Lanners to discuss a possible return to

work. [Ex. 2 at 153:11-154:4; Ex. 9 (Lanners Notes).] However, Plaintiff acknowledges that she was unsure that she could return to work: Q: Was there ever a time after February 1st of 2002 and before your termination that you felt you should be able to return to work? I believe I discussed, before ­ just before my termination, with Dr. Parsons, she felt that I could return to work. I was unsure about it, but not knowing what my limitations were at that point, I agreed with her that we could try half days with restrictions.

A:

[Ex. 2 at 139:3-8 (emphasis added).] 25. Ms. Lanners told Plaintiff that she would need to see if Celestica had a position

that would accommodate her restrictions. [Ex. 2 at 153:11-154:8; Ex. 9.] Ms. Lanners discussed Plaintiff's work restrictions with Tina Smith, who was the director of Plaintiff's department. [Ex. 9] After talking to Ms. Smith, Ms. Lanners determined that Celestica could accommodate her half day restrictions, but not her sitting restrictions. [Ex. 9] 26. On April 30, 2002, Ms. Lanners called Plaintiff and informed her that Celestica

could not accommodate her work restrictions. [Ex. 2 at 153:11-155:5; Ex. 9.] Plaintiff asked Ms. Lanners to put this in writing, which Ms. Lanners promptly did. [Ex. 2 at 176:15-177:6; Ex. 9; Ex. 10 (5/1/02 Lanners Letter).] Ms. Lanners' letter indicates that "Efforts are being made to try to accommodate [Plaintiff's] restrictions in another area." [Ex. 10.] Plaintiff admits that she

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has no evidence to suggest that Ms. Lanners did not try to identify an available position for Plaintiff, or that Ms. Lanners did not want Plaintiff to return to work. [Ex. 2 at 154:20-155:13.] 27. Plaintiff remained on workers' compensation leave and continued receiving

workers' compensation benefits through May 2002. [Ex. 2 at 160:13-161:13.] 28. Plaintiff cannot identify any position at Celestica that would have accommodated

the restrictions imposed by Dr. Parsons. [Ex. 2 at 177:22-178:18.] Instead, Plaintiff believes that Celestica should have accommodated her by creating a new position consisting solely of tasks Plaintiff might have been able to perform, which were part of the "busy work" duties and responsibilities already being performed by existing employees. [Ex. 2 at 177:22-178:18.] 29. When Plaintiff suffered prior work injuries, Celestica willingly and readily

accommodated Plaintiff's work restrictions. For example, on June 20, 2001, Plaintiff submitted a note with visual work restrictions to Celestica. [Ex. 11 (6/5/01 Doctors' Note).] Celestica accommodated these restrictions. [Ex. 2 at 71:3-21.] Additionally, on October 10, 2001, Plaintiff brought in a note asking that she be temporarily excused from lifting over 15 pounds. [Ex. 12 (10/10/01 Doctor's Note).] Celestica also accommodated these restrictions. [Ex. 2 at 72:10-74:1.] F. Surveillance of Plaintiff and Dr. Parsons' Special Report. 30. On April 5 and 6, 2002, while Plaintiff remained out on leave, WMW &

Associates conducted surveillance on Plaintiff. [Ex. 13 (4/23/02 Client Investigation Report).] No evidence indicates that Celestica was involved in the decision to conduct video surveillance of Plaintiff. [Ex. 2 at 231:12-16.] For at least some of the time, Plaintiff did not know that she was under surveillance. [Ex. 2 at 164:7-11.] The video showed Plaintiff walking outside for several minutes, and at no point was she using a cane. [Ex. 2 at 166:3-168:17; Ex. 13, p. 1.]

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Plaintiff was also videotaped conducting many activities without problem or assistance, such as climbing stairs, stepping over fences, and carrying objects. [Ex. 13.] 31. Dr. Parsons did not review the surveillance video until approximately one month

after it was filmed. [Attachment B to Ex. 1.] 32. On May 6, 2002, after viewing the video, Dr. Parsons wrote a report in response

to the surveillance tapes, stating in part: This surveillance tape showed that Plaintiff was able to walk without the assistance of a cane, and of note I had seen her in the clinic on 3/27/02, less than a week prior to the dates of the surveillance, and at that time was markedly unsteady, shaky, and had to walk with assistance of a cane. However, on the video she walks without the cane, she was able to crawl through a fence without difficulty and she was able to work under the hood of her car and crawl under the car with no difficulty, no tremors, and absolutely no physical characteristics she displayed while being examined from 2/05/02 until 3/27/02 in the clinic. IMPRESSION: It is my opinion, therefore, to a reasonable degree of medical certainty, that this case is somewhat fraudulent. Therefore, I will close the case for fraud and she will be placed at MMI with no impairment. [Attachment B to Ex. 1, p. 3 (emphasis added).] 33. On or about May 6, 2002, Dr. Parsons completed a closing Physician's Report of

Worker's Compensation Injury (the "May 6 Closing Report"). [Ex. 14 (5/6/02 Physician's Report of Workers' Compensation Injury).] The May 6 Closing Report indicated that Plaintiff had reached MMI as of May 6, 2002 and was being discharged from care based on "video surveillance." [Ex. 14.] 34. On May 15, 2002, Celestica workers' compensation insurance carrier (Hartford

Casualty Insurance) submitted its Final Admission of Liability. [Ex. 15 (5/15/02 Final Admission of Liability).] Consistent with the May 6 Closing Report, the Final Admission of Liability states that Plaintiff reached MMI on May 6, 2002, and that Plaintiff's benefits ceased effective as of May 5, 2002. [Ex. 15.]

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G.

The Decision to Terminate Plaintiff. 35. In early May, 2002, Eileen Lanners received Dr. Parsons' report and provided a

copy of the report to Eric McCallum ("Mr. McCallum"), Celestica's Human Resources Director. [Ex. 1, ¶¶ 1, 6.] At the time Mr. McCallum received Dr. Parsons' report, he had never met or observed Plaintiff. [Ex. 1, ¶ 8.] Therefore, he had no reason to doubt the conclusions reached by Plaintiff's treating workers' compensation physician. [Ex. 1, ¶ 8.] 36. Mr. McCallum concluded that Plaintiff's conduct as set forth in Dr. Parsons'

report violated the standards of conduct established by the Guidelines. [Ex. 1, ¶ 9.] Mr. McCallum decided to terminate Plaintiff based upon her violation of the Guidelines. [Ex. 1, ¶ 9.] Mr. McCallum directed Laura Berry, Employee Relations Specialist, to send a certified letter to the Plaintiff instructing her to report to work on May 13, 2002. [Ex. 1, ¶ 10.; Ex. 2 at 184:15185:1; Ex. 16 (5/9/02 Letter).] H. Plaintiff's Termination. 37. 38. On May 13, 2002, Plaintiff reported to work. [Ex. 2 at 187:16-23.] Though the May 6 Closing Report cleared Plaintiff to work without restrictions,

Plaintiff did not feel she could return to work on May 13: Q: At the time you went to work on May 13th, did you feel you were capable of working? I did not. I did feel I had to give a best effort, at least to show up and try it, because like I mentioned earlier, I did not know what my limitations were or what accommodations would be necessary. So I ­ no, I didn't think I could work the whole shift, but I didn't feel I had a choice. Did you think you could work in any capacity when you were on your way to work May 13th? Again, no, but I did not know what accommodations were going to be necessary, what my true limitations on the job would be. Up to that point I hadn't had any testing. All I could do was do my best.

A:

Q:

A:

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[Ex. 2 at 186:24-187:15 (emphasis added).] 39. Mr. McCallum met Plaintiff at the front desk. [Ex. 2 at 187:16-188:6] Plaintiff

had never met Mr. McCallum before that day. [Ex. 2 at 188:7-9; Ex. 1, ¶ 8.] 40. Mr. McCallum escorted Plaintiff to a conference room, where he informed her

that she was being terminated based on the results of an investigation performed by Celestica's workers' compensation carrier, which suggested fraud. [Ex. 2 at 188:19-189:15; Ex. 17 (Personnel Change Notice).] 41. Plaintiff initiated a union grievance on her termination, which the union

subsequently dismissed. [Ex. 2 at 193:21-23; Ex. 18 (Grievance); Ex. 19 (Notice of Dropped Grievance).] I. Plaintiff's Workers' Compensation Claim. 42. Plaintiff acknowledges that Celestica did not discourage her from filing a

workers' compensation claim or object to her receipt of workers' compensation benefits from February 2002 through May 2002. [Ex. 2 at 229:13-20.] 43. No evidence suggests that Mr. McCallum, who made the decision to terminate

Plaintiff, was involved in Plaintiff's workers compensation case. [Ex. 2 at 190:22-191:14.] 44. Following her termination, Plaintiff successfully reinstated her workers'

compensation case, and was awarded additional benefits. Plaintiff settled her case in January 2005, in exchange for payment of $100,000. [Ex. 2 at 211:8-21.] Plaintiff acknowledges that all of the physical and mental symptoms from which she currently suffers are directly attributable to her exposure to sealant fumes on February 1, 2002. [Ex. 2 at 120:10-121:3.]1

1

Of course, Plaintiff's acknowledgment that all of her current physical and mental injuries stem from her exposure (and not from her termination) triggers the exclusivity provision of the Colorado Workers' Compensation Act, Colo.

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J.

Plaintiff's OSHA Claim. 45. Plaintiff contacted OSHA from her home at the end of February 2002. [Ex. 2 at

134:24-135:2.] 46. Plaintiff told only three Celestica employees that she contacted OSHA. [Ex. 2 at

234:8-235:1.] None of these three employees were supervisors. [Ex. 2 at 234:8-235:1.] Plaintiff never told any management employee at Celestica that she had contacted or complained to OSHA. [Ex. 2 at 235:8-12.] 47. Mr. McCallum had no knowledge that Plaintiff had contacted or complained to

OSHA until after Plaintiff filed this lawsuit against Celestica in December 2003. [Ex. 1, ¶ 12.] Not surprisingly, then, Plaintiff's OSHA complaint was not mentioned in Plaintiff's May 13, 2002 termination meeting with Mr. McCallum. [Ex. 2 at 191:10-14.] K. Plaintiff's Has Not Sought Employment In Any Capacity Since Her Termination In May 2002. 48. at 206:4-7.] 49. Plaintiff admitted that she did not apply for unemployment benefits following her Plaintiff has not looked for work since her termination on May 13, 2002. [Ex. 2

termination from Celestica, because she was not able "to go to job interviews and . . . go to work right away." [Ex. 2 at 217:22-218:16.] 50. In her appeal of the Social Security Administration's denial of her request for

benefits, filed in September 2003, Plaintiff's representative wrote: Claimant continues to suffer vestibular, visual, balance, pain, mental confusion and vocational problems as a result of exposure in the workplace to toxins. Due to her physical and mental problems, Claimant is unable to perform any type of substantial gainful activity.

Rev. Stat. § 8-41-301(1)(c) and precludes any award of damages to Plaintiff based on such physical or mental conditions.

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[Ex. 20 (Request for Hearing by Administrative Law Judge (emphasis added)]. Plaintiff agrees with that statement. [Ex. 2 at 216:14-217:21.] 51. At her deposition, Plaintiff could not identify any accommodation that would

allow her to return to the workforce in any capacity. [Ex. 2 at 224:3-23; 225:14-24.] 52. Q: In fact, Plaintiff acknowledges that she may never be able to return to work: Do you have any intention, at the current time or in the future, of looking for work? I have no idea at the current time if I will ever be able to work, what I could do, what direction I would go. I am completely out of anything I have known previously. I know, based on how I feel today, that to go back to the exact same work I was doing before, I would not physically be able to handle that, to say nothing of intellectually how I would handle that.

A:

[Ex. 2 at 157:9-18.] .... Q: Since the date of your termination on May 13th, you have not been able to work in any capacity; is that correct?

MS. SERNA: Objection to form. A: Q: I would say so. And you would agree you have not looked for work since your termination, correct? I agree. And that's because of your medical condition, correct? I agree. Would you agree that you are not ­ let me start over. Would you agree that you have not been able to work since your termination in any capacity, even with an accommodation?

A: Q: A: Q:

MS. SERNA: Objection to form.

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A:

I will agree that up to this point I have not worked. I am not sure that accommodation couldn't be met because I truly don't know what my limitations would be. I'm understanding that they would be great. What would be great, the limitations? The limitations. If you're not sure of what accommodations would be necessary to allow you to work to meet these restrictions, why have you not made an attempt to look for work? Based on my massage therapist, my ­ Michelle Ellis, my counselor, past reports by Dr. Helffenstein, and from my own family practitioner, it would be an unwise thing to do, to attempt to look for work. All of these people have recommended against you looking for any kind of work in any capacity; is that your testimony?

Q: A: Q:

A:

Q:

MS. SERNA: Objection to form. A: My testimony is, they have voiced either deep concern or an absolute opposition to my attempt to get any work.

[Ex. 2 at 205:24-207:15.) 53. Plaintiff's recent medical records confirm that she is unable to return to her prior

position, or to work in any other capacity. For example, in or about March 7, 2005, Plaintiff consulted a physical therapist who concluded "[i]t appears that [Plaintiff] would not be able to return to her previous line of work." [Ex. 21 (3/7/05 Letter from Mara Lund).] Further, following a workers' compensation evaluation conducted in late October, 2004, the evaluators determined that Plaintiff's "capacity for work is below the 1st percentile. The combination of her limitations does not render a vocational profile that will match any known jobs locally or in the United States." [Ex. 22, p. 21 (10/27/04 Workers' Compensation Evaluation).]

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III.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); accord Meredith v. Beech Aircraft Corp., 18 F.3d 890, 893 (10th Cir. 1994). "The movant need not negate the non-movant's claim, but need only point to an absence of evidence to support to the non-movant's claim." Kuehl v. Wal-Mart Stores, Inc., 909 F. Supp. 794, 798 (D. Colo. 1995). IV. A. ARGUMENT

Plaintiff Cannot State A Claim Against Celestica Under The ADA. Plaintiff cannot produce evidence necessary to support her claim against Celestica under

the ADA. The ADA prohibits employers from discriminating against qualified individuals with disabilities, 42 U.S.C. § 12112(a), and requires employers to reasonably accommodate "the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A). "Merely having an impairment does not make one disabled for purposes of the ADA." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002). Instead, Plaintiff must establish that: "(1) she is a disabled person as defined by the ADA; (2) she is qualified, with or without reasonable accommodation, to perform the essential functions of

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the job held or desired; and (3) the employer discriminated against her because of her disability." Doyal v. Okla. Heart, Inc., 213 F.3d 492, 495 (10th Cir. 2000). For purposes of summary judgment only, Celestica does not dispute that Plaintiff can satisfy the first factor, i.e., that Plaintiff is disabled for purposes of the ADA. However, Plaintiff's ADA claim still fails on multiple fronts, because: (1) Plaintiff cannot establish that she is qualified, with or without reasonable accommodation, to perform the essential functions of any available position at Celestica; To the extent Plaintiff's ADA claim arises based upon an alleged failure to accommodate, such claim is time-barred; Plaintiff cannot show that Celestica unreasonably failed to accommodate her disability in April 2002; and Plaintiff cannot show that Celestica's decision to terminate Plaintiff in reliance on the report of Plaintiff's treating physician was pretext for unlawful disability discrimination. Plaintiff Cannot Show That She Was Qualified To Perform The Essential Functions Of Any Available Position Within Celestica.

(2)

(3)

(4)

1.

As an initial matter, Plaintiff's ADA claim against Celestica fails because she cannot establish that she was a "qualified individual" within the meaning of the ADA. The Tenth Circuit relies upon a two-part test to determine whether an individual is qualified for purposes of the ADA. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir. 1999). First, the Court "examine[s] whether the individual can perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue." Id. If the employee cannot perform the essential functions of her job, the Court "must determine whether any reasonable accommodation by the employer would enable her to perform those functions." Id. It is undisputed that Plaintiff could not perform the essential functions of her manufacturing job at any time following her exposure to sealant fumes on February 1, 2002.

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When Dr. Parsons released Plaintiff to modified work in late April 2002, Plaintiff's restrictions included: no lifting; no carrying and pushing more than 10 pounds; working only half days with sitting duty; and no more than 15 minutes of walking per hour. [Stm. Und. Fact ¶ 22.] Plaintiff herself has admitted that lifting, standing and reaching were essential functions of every job she performed at Celestica. [Stm. Und. Fact ¶ 23.] However, perhaps the most conclusive evidence of Plaintiff's inability to perform the essential functions of her manufacturing job comes from Plaintiff's testimony that, even now ­ over three years after the exposure ­ she could not perform her prior job at Celestica: Q: Do you have any intention, at the current time or in the future, of looking for work? I have no idea at the current time if I will ever be able to work, what I could do, what direction I would go. I am completely out of anything I have known previously. I know, based on how I feel today, that to go back to the exact same work I was doing before, I would not physically be able to handle that, to say nothing of intellectually how I would handle that.

A:

[Stm. Und. Fact ¶ 52 (emphasis added).] Along similar lines, Plaintiff's physical therapist recently opined that Plaintiff "would not be able to return to her previously line of work." [Stm. Und. Fact ¶ 53.] Accordingly, Plaintiff clearly was not a "qualified individual" with regard to her manufacturing position. Thus, the only inquiry remaining is whether Celestica could have accommodated Plaintiff through reassignment. Plaintiff bears the burden of demonstrating a triable issue as to whether reassignment was possible or required. See Spraggs v. Sun Oil Co., 215 F.3d 1337, 2000 WL 628186 at * 3 (10th Cir. May 16, 2000) (unpublished decision) (Ex. 23) (citing White v. York Int'l Corp., 45 F.3d 357, 361-63 (10th Cir. 1995)). To trigger a reassignment obligation, an employee must be qualified for a vacant position, i.e., able to perform the essential functions of the

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position. See Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999); Tate v. Farmland Indus., Inc., 268 F.3d 989, 993 (10th Cir. 2001) (quoting 29 C.F.R. § 1630.2(m) ("[a]s a condition to performing the essential functions of an employment position, however, an individual must first satisfy `the requisite skill, experience, education and other job-related requirements of the employment position.'")); Frazier v. Simmons, 254 F.3d 1247, 1256 (10th Cir. 2001) (assessing the physical activities that the plaintiff could not perform during the relevant time frame in comparison to the essential functions of the vacant positions to determine whether employee was qualified); White, 45 F.3d at 363 (interactive process triggered if employee is qualified for position). On this issue, Celestica is entitled to summary judgment because even Plaintiff could not identify a single, vacant position that she could have performed in the April/May 2002 timeframe. [Stm. Und. Fact ¶ 28.] "[I]n a failure to transfer case, if, after a full opportunity for discovery, the summary judgment record is insufficient to establish the existence of an appropriate position into which the plaintiff could have been transferred, summary judgment must be granted in favor of the defendant ­ even if it also appears that the defendant failed to engage in good faith in the interactive process." Donahue v. Consolidated Rail Corp., 224 F.3d 226, 234 (3d Cir. 2000) (emphasis added); see also Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995) (rejecting job transfer as reasonable accommodation where plaintiff failed to describe other jobs that would have accommodated his disability and instead simply speculated that "he could probably transfer to something else"). Further evidence that reassignment would not have permitted Plaintiff to return to Celestica comes from Plaintiff's repeated representations concerning her inability to work in

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April/May 2002 and thereafter. For example, Plaintiff has admitted that even she did not believe she could return to work in any capacity in the April/May 2002 timeframe: Q: At the time you went to work on May 13th, did you feel you were capable of working? I did not. I did feel I had to give a best effort, at least to show up and try it, because like I mentioned earlier, I did not know what my limitations were or what accommodations would be necessary. So I ­ no, I didn't think I could work the whole shift, but I didn't feel I had a choice. Did you think you could work in any capacity when you were on your way to work May 13th? Again, no, but I did not know what accommodations were going to be necessary, what my true limitations on the job would be. Up to that point I hadn't had any testing. All I could do was do my best.

A:

Q:

A:

[Stm. Und. Fact ¶ 38 (emphasis added).] Plaintiff has also admitted that she did not seek unemployment following her termination from Celestica, because "you have to be ready to go to job interviews and be able to go to work right away" and she was not capable of doing that at the time. [Stm. Und. Fact ¶ 49.] Similarly, Plaintiff's 2003 representations to the Social Security Administration that she "is unable to perform any type of substantial gainful activity" [Stm Und. Fact ¶ 50] preclude her from asserting that she was a "qualified" for any position at Celestica in April/May 2002. The United States Supreme Court has held: A plaintiff's sworn assertion in an application for [Social Security] disability benefits that she is, for example, "unable to work" will appear to negate an essential element of her ADA case -- at least if she does not offer a sufficient explanation. For that reason, we hold that an ADA plaintiff cannot simply ignore the apparent contradiction that arises out of earlier SSDI total disability claim. Rather she must proffer a sufficient explanation. See Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 806 (1999). However, rather than lessening the impact of Plaintiff's representations to the SSA, evidence such as the findings of Plaintiff's workers' compensation evaluation only strengthens Celestica's argument

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that Plaintiff is not "qualified" for purposes of the ADA. [Stm. Und. Fact ¶ 53 (concluding that Plaintiff's "capacity for work is below the 1st percentile. The combination of her limitations does not render a vocational profile that will match any known jobs locally or in the United States.") (emphasis added).] Finally, the nail in the proverbial coffin of Plaintiff's claim that Celestica should have transferred or reassigned her to another position in 2002 comes in the fact that Plaintiff has not sought employment in any capacity since her termination from Celestica over three years ago, nor does she have any expectation of when or if she will do so in the future. In her deposition, Plaintiff testified: Q: Since the date of your termination on May 13th, you have not been able to work in any capacity; is that correct?

MS. SERNA: Objection to form. A: Q: I would say so. And you would agree you have not looked for work since your termination, correct? I agree. And that's because of your medical condition, correct? I agree. Would you agree that you are not ­ let me start over. Would you agree that you have not been able to work since your termination in any capacity, even with an accommodation?

A: Q: A: Q:

MS. SERNA: Objection to form. A: I will agree that up to this point I have not worked. I am not sure that accommodation couldn't be met because I truly don't know what my limitations would be. I'm understanding that they would be great. What would be great, the limitations?

Q:

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A: Q:

The limitations. If you're not sure of what accommodations would be necessary to allow you to work to meet these restrictions, why have you not made an attempt to look for work? Based on my massage therapist, my ­ Michelle Ellis, my counselor, past reports by Dr. Helffenstein, and from my own family practitioner, it would be an unwise thing to do, to attempt to look for work. All of these people have recommended against you looking for any kind of work in any capacity; is that your testimony?

A:

Q:

MS. SERNA: Objection to form. A: My testimony is, they have voiced either deep concern or an absolute opposition to my attempt to get any work.

[Stm. Und. Fact ¶ 52.] Having acknowledged that she has not looked for employment of any kind since her May 2002 termination, Plaintiff can produce no set of facts that show that she was "qualified" for any position within Celestica during the April/May 2002 timeframe. For all of these reasons, Plaintiff cannot meet even her threshold burden of showing that she is a "qualified" individual for purposes of the ADA, and therefore Celestica is entitled to summary judgment on Plaintiff's ADA claim. 2. Any Failure To Accommodate Claim is Time-Barred.

To the extent Plaintiff purports to state an ADA claim against Celestica for failure to accommodate, Plaintiff's claim is time barred. Denial of a request for accommodation is considered a discrete, discriminatory act. See, e.g., Kielbasa v. Illinois Environmental Protection Agency, 2003 WL 880995 at *4 (N.D. Ill. March 23, 2003) (finding that employer's alleged denial of accommodation was a discrete discriminatory act occurring outside of the limitations period) (Ex. 24); Spears v. Delphi Automotive Systems Corp., 2002 WL 1880756 at *15 (S.D. Ind. Aug. 15, 2002) (refusing to consider denial of request for accommodation that occurred

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more than 300 days before plaintiff filed his charge of discrimination) (Ex. 25). Plaintiff must file a Charge of Discrimination with the EEOC within 300 days following the discrete, discriminatory act about which she complains. National RR. Passenger Act v. Morgan, 536 U.S. 101, 110 ("A discrete retaliatory or discriminatory act `occurred' on the day it `happened.' A party, therefore, must file a charge within either 180 days or 300 days of the date of the act or lose the ability to recover for it.") According to Plaintiff, Celestica denied her request for accommodation on April 30, 2002,when Ms. Lanners informed her that Celestica could not accommodate her work restrictions. [Stm. Und. Fact ¶ 26.] Plaintiff filed her Charge of Discrimination with the EEOC on March 7, 2003 [Ex. 3] ­ 311 days after the denial of her request for accommodation. Accordingly, Celestica is entitled to summary judgment on Plaintiff's time-barred failure to accommodate claim. 3. Plaintiff Cannot Show That Celestica Failed To Reasonably Accommodate Her In April 2002.

Assuming that Plaintiff could establish that she is a qualified individual for purposes of the ADA (which she cannot) and that her claim is not time-barred (which it is), Plaintiff still cannot state a failure to accommodate claim against Celestica under the ADA. Plaintiff's argument that Celestica failed to accommodate her in April 2002 ignores the fact that Celestica provided her with the only accommodation possible ­ i.e., an extension of her workers' compensation leave while it continued to look for positions that accommodated the numerous restrictions placed upon her by Dr. Parsons. Clearly, granting an employee leave may constitute a reasonable accommodation under the ADA. See Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1168 (10th Cir. 1996) (but granting summary judgment to employer because plaintiff's requested accommodation (indefinite leave) was not reasonable). It is undisputed that Plaintiff remained on leave and

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continued receiving workers' compensation benefits through May 2002. [Stm. Und. Fact ¶ 27.] Thus, because Celestica did provide Plaintiff with the only accommodation consistent with her restrictions, Plaintiff's argument that Celestica did not provide her with a reasonable accommodation must fail. Plaintiff's argument that Celestica failed to accommodate her similarly fails because the accommodation Plaintiff demanded would have required Celestica to create a new position and/or alter the essential job duties of her manufacturing position. The April 2002 restrictions placed upon Plaintiff by her treating physician included no lifting, no carrying and pushing more than 10 pounds, working only half days with sitting duty, and no more than 15 minutes of walking per hour. [Stm. Und. Fact ¶ 22.] Plaintiff could not identify any existing, vacant job at Celestica that would have accommodated these restrictions. [Stm. Und. Fact ¶ 28; see also Milton, 53 F.3d at 1125 (10th Cir. 1995) (rejecting job transfer as reasonable accommodation where plaintiff failed to describe other jobs that would have accommodated his disability and instead simply speculated that "he could probably transfer to something else")] Instead, at her deposition, Plaintiff contended that Celestica could have accommodated her disability by isolating the "busy work" functions of her manufacturing position and requiring her to do only those functions that she might have been able to perform. [Stm. Und. Fact ¶ 28.] However, Celestica was not required to create a permanent light duty position for Plaintiff. See Mathews v. The Denver Post, 263 F.3d 1164, 1169 (10th Cir. 2001) (accommodation does not require creation of new job by effectively changing essential duties so as to create permanent light duty position); see also Anderson, 181 F.3d at 1177 (employer is not required to change the structure of its business or create a new position).

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Additionally, Plaintiff admitted that activities such as lifting, standing and reaching were essential functions of every job that she performed at Celestica. [Stm. Und. Fact ¶ 23.] The law in the Tenth Circuit clearly establishes that reasonable accommodations do not include eliminating essential functions of an employee's position, by, for example, isolating only the "busy work" functions as demanded by Plaintiff. See Anderson, 181 F.3d at 1177; Milton, 53 F.3d at 1124 ("An employer is not required to reallocate job duties in order to change the essential function of a job.") Because Celestica did provide Plaintiff with an accommodation (continued leave), and because the other accommodations demanded by Plaintiff are unreasonable as a matter of law, Celestica is entitled to summary judgment on Plaintiff's claim that Celestica failed to accommodate her in April 2002. 4. Plaintiff Cannot Show That Celestica Terminated Her Because Of Her Disability.

Finally, assuming (again without conceding) that Plaintiff could demonstrate that she is "qualified" for purposes of the ADA, Plaintiff cannot state a claim against Celestica for terminating her in violation of the ADA. Instead, all available evidence shows that Mr. McCallum terminated Plaintiff reasonably relying on Dr. Parson's report closing Plaintiff's workers' compensation claim for fraud, and not because of her purported disability. [Stm. Und. Fact, ¶ 35.] Mr. McCallum had never met or observed Plaintiff prior to Plaintiff's termination meeting on May 13, 2002. [Stm. Und. Fact, ¶ 35.] Thus, there is no evidence that Mr. McCallum had any information concerning her workers' compensation claim or her medical condition prior to the time he received Dr. Parsons' Special Report, at which time, the only information he had indicated that Plaintiff had no medical condition and instead Plaintiff's workers' compensation claim was being closed "for fraud." [Stm. Und. Fact ¶¶ 32, 35.] Thus,

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Mr. McCallum's termination decision could not have arisen based on Plaintiff's disability, because Mr. McCallum had no information that Plaintiff was disabled. Instead, the only evidence concerning Mr. McCallum's motivation shows that Mr. McCallum received Dr. Parsons' Special Report in early May 2002, determined that Plaintiff's conduct as set forth in Dr. Parsons' report violated Celestica's Guidelines, and terminated Plaintiff shortly thereafter. [Stm. Und. Fact ¶¶ 35, 36, 40.] Of course, after Plaintiff's termination in May 2002, Plaintiff's workers' compensation claim was reinstated, and Plaintiff received additional workers' compensation benefits including a settlement payment of $100,000. [Stm. Und. Fact, ¶ 44.] However, Mr. McCallum's belief (even if that belief was mistaken) that Plaintiff's workers compensation claim was fraudulent "can be a legitimate reason for [his] employment decision and is not necessarily pretextual." EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1322 n.12 (10th Cir. 1992). As the Tenth Circuit has recognized, "a challenge of pretext requires [the Court] to look at the facts as they appear to the person making the decision to terminate plaintiff." Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220, 1231 (10th Cir. 2000) (rejecting plaintiff's claim of pretext and affirming summary judgment in favor of employer). Here, Mr. McCallum had never met or observed Plaintiff prior to receiving Dr. Parsons' report. [Stm. Und. Fact, ¶ 35.] Therefore, at the time he made his decision to terminate Plaintiff, he had no reason to doubt the conclusions of Plaintiff's treating workers' compensation physician. [Stm. Und. Fact, ¶ 35.] Because Mr. McCallum made his decision to terminate Plaintiff based on a legitimate, non-discriminatory reason (i.e., Dr. Parsons' Special Report, closing Plaintiff's workers' compensation case "for fraud"), and because Plaintiff cannot demonstrate that Mr. McCallum's

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reason for terminating her is pretextual, Celestica is entitled to summary judgment on Plaintiff's claim under the ADA. B. Plaintiff Cannot State A Claim For Wrongful Discharge In Violation Of Public Policy. Celestica is similarly entitled to summary judgment on Plaintiff's state law wrongful discharge claims. Plaintiff's state law claims are premised upon Plaintiff's assertion that Celestica's decision to terminate her was in retaliation for filing a OSHA report and/or for filing a claim for workers' compensation. As explained below, Plaintiff's claim fails under either theory. As an initial matter, Plaintiff cannot state a claim for wrongful discharge under the traditional elements necessary to support such a claim. As established by the Colorado Supreme Court case recognizing the tort of wrongful discharge, the traditional elements of the claim are: (1) the employer prohibited the employee from performing a public duty or exercising an important job-related right or privilege; the action directed by the employer would violate the employee's rights or privileges as a worker; the employee refused to comply with the employer's directive because employee reasonably believed that to do so would have been a violation of employee's legal right or duty as a worker; the employer was aware or reasonably should have been aware that employee's refusal to comply with the employer's directive was based on employee's reasonable belief that to do so would have been a violation of employee's legal right or privilege as a worker; and the employee was terminated as the result of refusing to perform the act directed by the employer.

(2)

(3)

(4)

(5)

See Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 109 (Colo. 1992); Colo. Jury Instr., Civil 31:11. However, neither Martin Marietta nor any subsequent Colorado Supreme Court decision has resolved the issue of whether a plaintiff can state a claim for wrongful discharge based on the

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exercise of a statutory right absent a prior directive not to do so. See Colo. Jury Instr., Civil 31:12, Notes on Use ¶ 3 (4th ed. 2004) ("it is not clear whether the requirements set forth in Martin Marietta were intended to apply to a situation in which an employer discharges an employee for exercising a specific statutory right or duty without any prior order or directive not to do so") Here, of course, Plaintiff admits that no one at Celestica directed her not to file an OSHA report or a claim for workers' compensation. [Stm. Und. Fact ¶ 42.] Assuming, without conceding, that Plaintiff can maintain a claim for wrongful discharge in violation of public policy absent a directive by Celestica not to file an OSHA report or a workers' compensation claim, the elements of Plaintiff's claim include: (1) plaintiff was employed by defendant; (2) plaintiff was discharged by defendant; and (3) defendant discharged plaintiff because the plaintiff exercised a specific statutory right. See Colo. Jury Instr., Civil 31:12 (4th ed. 2004). As demonstrated below, Plaintiff cannot produce evidence necessary to establish these required elements. 1. Plaintiff's Wrongful Discharge Claim Based on Filing An OSHA Report Fails. a. Plaintiff cannot establish a causal connection between filing her OSHA report and her termination.

As an initial matter, Plaintiff's wrongful discharge claim does not survive summary judgment, because Plaintiff cannot establish a causal connection between her report and her discharge. See Jackson v. Dillard's Department Stores, Inc., 92 Fed. Appx. 583, at *588 (10th Cir. Oct. 17, 2003) ("[Plaintiff's] claim can only withstand summary judgment if she is able to present evidence that her termination was causally connected to her filing for benefits under workers' compensation.") (attached as Ex. 26) (citing Lathrop v. Entenmann's Inc., 770 P.2d 1367, 1372-73 (Colo. App. 1989), cert. dismissed, 778 P.2d 1370 (Colo. 1989)). Here, Mr. McCallum, who made the decision to terminate Plaintiff, had no knowledge that Plaintiff had

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filed a report with OSHA. [Stm. Und. Fact ¶ 46.] Of course, the decision-maker's knowledge of the protected activity is a fundamental element of establishing a causal connection between the protected activity and the adverse action. See, e.g., Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) (holding that "to establish a `causal connection,' plaintiff must show that the individual who took adverse action against him knew of the employee's protected activity"). Because the evidence shows that Mr. McCallum had no knowledge that Plaintiff had filed an OSHA report at the time he decided to terminate her, Plaintiff cannot establish the necessary causal connection to support her wrongful discharge claim, and therefore Celestica is entitled to summary judgment. b. OSHA provides its own statutory remedy for retaliation

Even assuming that Plaintiff could show a causal connection between her OSHA report and her termination (which she cannot), Plaintiff's state law claim would still fail, since OSHA itself provides a remedy for wrongful discharge. See 29 U.S.C. § 660(c)(2). In Miles v. Martin Marietta Corp., 861 F. Supp. 73, 74 (D. Colo. 1994), another court in this District granted summary judgment in favor of an employer on an employee's claim for wrongful discharge based on filing of an OSHA report, on the grounds that OSHA itself provides a wrongful discharge remedy. Relying on the same analysis used by the Court in Miles, Plaintiff cannot maintain a separate public policy wrongful discharge claim against Celestica premised upon her filing of an OSHA report. See id. Accordingly, Celestica respectfully requests that the Court enter summary judgment in its favor on Plaintiff's claim for wrongful discharge as premised upon her filing of an OSHA report. 2. Plaintiff's Wrongful Discharge Claim Based on Filing A Workers' Compensation Claim Similarly Fails.

Plaintiff similarly cannot establish a causal connection between her workers' compensation claim and her termination. See, e.g., Jackson, 92 Fed. Appx. 583, at *588

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(granting summary judgment on plaintiff's wrongful discharge claim, where plaintiff failed to establish causal connection between her termination and her claim for workers' compensation benefits). More than three months elapsed between the time that Plaintiff filed her workers' compensation claim and the time Celestica terminated her employment. The Tenth Circuit has previously found no causal connection existed where three months had elapsed between the protected activity and the adverse action. See Richmond v. Oneok, Inc., 120 F.3d 205, 209 (10th Cir. 1997). As Plaintiff cannot rely on the temporal proximity of her claim to her termination, and has no other evidence that would link her termination to the fact that she filed a workers' compensation claim, Celestica is entitled to summary judgment in its favor. V. CONCLUSION

For all of the reasons set forth above, Defendant Celestica Corporation respectfully requests that the Court enter summary judgment in its favor, and against Plaintiff, on each of the three causes of action alleged in Plaintiff's Complaint, and dismiss each of Plaintiff's claims against Celestica with prejudice. Respectfully submitted this 30th day of September, 2005. FAEGRE & BENSON LLP s/ Elizabeth S. McKelvey Elizabeth S. McKelvey Charles W. Weese Elizabeth S. McKelvey 3200 Wells Fargo Center 1700 Lincoln Street Denver, Colorado 80203 Telephone: (303) 607-3500 Facsimile: (303) 607-3600 ATTORNEYS FOR DEFENDANT CELESTICA CORPORATION

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CERTIFICATE OF SERVICE I hereby certify that on September 30, 2005, I electronically transmitted the attached document to the Clerk of Court using the ECF System for filing. Based on the records currently on file, the Clerk of court will transmit a Notice of Electronic Filing to the following ECF registrants: N/A I hereby certify that on September 30, 2005, I served the attached document by U.S. Mail, postage prepaid on the following, who are not registered participants of the ECF System: Cecilia M. Serna, Esq. Law Office of Cecilia M. Serna, Esq. 600 17th Street, Suite 2800 South Denver, Colorado 80202-5428

s/ Elizabeth S. McKelvey
DNVR1:60317334.04

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