Free Motion to Supplement - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-D-2474 (PAC)

CHARLOTTE SCHNEIDER AND DEAN WYMER, Plaintiffs, v. LANDVEST CORPORATION, a Kansas corporation, and DAVID MASON, individually, Defendants.

DEFENDANTS' MOTION TO SUPPLEMENT FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING PLAINTIFFS' REFERENCES TO SOCIAL SECURITY; DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION TO SUPPLEMENT RECORD WITH CORRESPONDENCE FROM SOCIAL SECURITY ADMINISTRATION OR, IN THE ALTERNATIVE, MOTION FOR ORDER FOR PRODUCTION OF RECORDS AND MOTION TO SUPPLEMENT RECORD WITH SOCIAL SECURITY RECORDS _____________________________________________________________________________ COMES NOW Defendants, Landvest Corporation and David Mason, through undersigned counsel, in response to Plaintiffs' Motion to Supplement Record with Correspondence from Social Security Administration (SSA). Defendants oppose the supplementation of the record since it is nothing more than an attempt by Plaintiffs to rescind Plaintiff Schneider'trial testimony. Contrary to s Plaintiffs' assertion in Plaintiffs' Revised Findings of Fact and Conclusion of Law, Defendants have established that Plaintiff Schneider made an inconsistent claim to Social Security by representing that she was not engaged in substantial gainful activity while representing to this court that she was able to work in excess of forty hours a week. Therefore, Plaintiff is judicially estopped. A supplementation

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of the record at this stage would allow Plaintiff to retract key testimony. The Court should allow the evidence to stand and deny Plaintiffs' Motion to Supplement the Record. Defendants further object to the supplementation of the record with Plaintiffs Exhibit 74 since this Exhibit is a partial record of correspondence between Plaintiff and the SSA. Defendants have repeatedly sought statements made by Plaintiff regarding her employment, and specifically a release for her Social Security records. Plaintiffs had a continuing duty to supplement their discovery responses and Plaintiffs failure to disclose this information until post-trial is sanctionable. The Tenth Circuit upheld a sanction for similar conduct ordered by the district court in Rodriguez v. IBP, Inc., 243 F.3d 1221 (10th Cir. 2001) that ultimately exceeded the jury award for the plaintiff. Should the Court chose to supplement the record with Exhibit 74, Defendants move the Court for an order requiring Plaintiff Charlotte Schneider to provide a complete release for her Social Security records. Defendants also request that the Court withhold its ruling on the merits of Plaintiffs' claims until such records are obtained and allow Defendants to supplement the record with the complete Social Security documents. A. The record is clear that Plaintiff Schneider should be judicially estopped from recovering. Plaintiffs request to supplement the record with a new Exhibit 74 that consists of 15 pages of correspondence from the SSA to Plaintiff Schneider. Plaintiffs claim that should the Court accept Plaintiffs' proposed supplement to the record, these documents establish that " Plaintiff was in fact working at Landvest during a trial work period as allowed by statute and rule and thus as a matter of fact there is no evidence in the record of any inconsistent claim made to the Social Security Administration."[Doc. 135: Motion, p. 5.]

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In responding to Defendants' judicial estoppel argument, Plaintiffs try to shift the court' s focus to the fact that Schneider continued to receive Social Security benefits during her " work trial period"while employed at Landvest. This, Plaintiffs argue, is not " clearly inconsistent"with Schneider' " s contention that she worked over 40 hours in certain weeks." Plaintiffs ignore Schneider'testimony that she represented to the SSA that she was not engaging in substantial gainful s employment while employed with Landvest. Plaintiffs also ignore the fact that Schneider'trial work s period ended in November of 2002 and, at that time, that she entered into a " reentitlement period" whereby the SSA could have disqualified her on a permanent basis, necessitating a new review for benefits had she reported that she was working 40-60 hours per week. Without the admission of Exhibit 74, the record is clear ­ Schneider testified that she did not represent to SSA that she was engaged in substantial gainful activity, when in fact she was engaging in substantial gainful activity (by working 40-60 hours per week). Plaintiffs' motion to supplement the record with Exhibit 74 is merely an attempt to " explain away" Schneider'testimony at trial and s argue that there is no " clear inconsistencies." The admission of these documents at this stage, without a complete admission of all of Plaintiffs' Social Security records, only muddles the record; it is unnecessary to render a determination that Plaintiff is estopped from recovering. B. Defendants are entitled to Plaintiffs' Social Security Records relating to Plaintiffs' proposed Exhibit 74 since these records, in conjunction with Plaintiffs' Exhibit 74, will ensure the Court is not " misled" about Schneider'inconsistent statements. s Plaintiff Schneider requested that Exhibit 74, consisting of 15 pages of Social Security Records, be included in the record to ensure that an " appellate court, unfamiliar with the application of the ` work' trial rules to a specific case," not misled " believing that Charlotte Schneider made is into an inconsistent claim in another forum. She did not."

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The admission of Exhibit 74, and Plaintiffs' supplemental Findings of Fact and Conclusions of Law, imply that Exhibit 74 proves that there are no inconsistent statements by Schneider because she claims she can receive Social Security Disability benefits and work during a trial period. [Doc. 135: Proposed Supplemental Findings of Fact and Conclusions of Law, ¶ 16.] Plaintiff made this clear in her Motion to Supplement the record that " [t]he proposed Exhibit 74 demonstrates that Plaintiff disclosed her work and income to the SSA and was still eligible for benefits."[Doc. 135: Motion to Supplement, p. 3, ¶ 1.] Plaintiffs' submission of Exhibit 74, however, does not provide the Court with the information that Plaintiffs allege. In fact, these documents prove that there is one, possibly two, standard Social Security forms that were signed and submitted by Schneider which report specifically the number of hours worked. These forms were not submitted by Plaintiff to the Court. These forms elicit information about Schneider' ability to engage in substantial gainful activity. At trial, Plaintiff s testified she represented to the SSA that she could not perform substantial gainful activity. Schneider'representation about her ability to engage in substantial gainful activity (i.e. full time plus s overtime work) are contradictory to her SSA representations. The current record is sufficient to determine Plaintiff is judicially estopped. Plaintiffs' Exhibit 74 muddles the record without the admission of Plaintiffs' complete Social Security file. If the Court determines that the current record is insufficient, Plaintiffs' proffered Exhibit 74 is evidence of a SSA determination that was made based on a signed statement submitted by Schneider regarding her work and earnings, which will ensure that this Court is not misled about Schneider' s statements. Defendants request an order for the production of this statement and any similar statements made by Schneider during and after her employment with Landvest that gave rise to Exhibit 74.

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1.

A legal overview of the Administration'criteria for determining whether an applicant s is " disabled" and when to discontinue benefits for engaging in " substantial gainful activity."

According to applicable case law and regulations, a disabled person must apply to the SSA for a determination of disability. 42 U.S.C. § 432(a)(1)(D). This determination is made based on medical, personal and work reports. Id. § 432(d)(5)(A); 20 C.F.R. § 404.1512. For social security purposes, one is " disabled" she is unable to engage in any substantial gainful activity because of a if medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of no less than 12 months. 42 U.S.C. § 423(d). One goal of the social security program is to encourage disabled workers to be productive and attempt to re-enter the workforce. SSA Publication No. 05-10095 (January 2005) (available at www.socialsecurity.gov/disability). This SSA publication describes one'entitlement to disability s benefits and is routinely provided by the SSA to disabled persons. See, e.g., Form SSA-821-BK (March 2001) (which is standard form used by the SSA which requires enclosure of Publication 0510095). With this goal, the social security program permits a " work period."Id. § 422(c). The trial trial work period is a period during which a disabled person tests her ability to work without jeopardizing disability benefits. 20 C.F.R. § 404.1592(a). Every disabled social security recipient is entitled to one trial work period while disabled. Id. § 404.1592(c). The trial work period begins with the month a person first becomes entitled to disability benefits and generally ends after the ninth month in which the person performed " services"within a rolling period of five years. Id. § 404.1592(e). The nine months of " services" not have to be consecutive, but may occur at any do time during the five-year measuring period. Id. § 404.1592(a). A recipient is generally considered by

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the SSA to have performed " services"in any month in which the recipient' earnings exceed a s specified monthly limit, which is adjusted from time to time ($530 in 2001, $580 in 2004, $590 in 2005, $620 in 2006). Id. § 404.1592(b). In essence, the trial work period allows a person receiving disability benefits to work and earn income at any level but still receive full disability benefits. 42 U.S.C. § 422(c)(2); 20 C.F.R. § 404.1592(a). After a trial work period ends, a " reentitlement period" begins. The reentitlement period begins immediately after the trial work period ends and lasts for three years. Id. § 404.1592a(b). A reentitlement period is yet another period of time during which a disability recipient may test her ability to work. Id. § 404.1592a(a). During the reentitlement period, a disability recipient may continue to work, but if the work constitutes " substantial gainful activity," SSA considers the the person'disability to have ceased and does not pay disability benefits during any month of substantial s gainful activity. Id. § 404.1592a(a)(2). If a recipient'benefits stop because of substantial gainful s activity, the reentitlement period allows benefits to restart without further application or a new determination of disability, once the recipient ends substantial gainful employment. Id. The reentitlement period essentially allows a disabled person to work off and on and start and stop benefits depending on the earnings of the person for any month in the reentitlement period. " Substantial gainful activity" work during any period in which a benefit recipient considers is herself disabled which tends to show that she could work at a gainful level. Id. § 404.1571. Based on this definition, the SSA uses several factors to determine if work meets the substantial gainful activity level. One of the most common factors is the amount of a disability recipient'earnings. If s the earnings exceed a certain level, the SSA will generally consider the recipient capable of substantial gainful activity. If a disability insurance recipient does not have earnings in excess of the substantial threshold, the SSA will consider the recipient to have not engaged in substantial gainful activity and

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only in special circumstances, such as a person deferring or suppressing earnings, will the SSA consider the other factors. Id. § 404.1574(b)(6)(ii). The following table sets forth the minimum earnings level the SSA uses to determine if a recipient engages in substantial gainful activity. For Months in Calendar Years: 2006 2005 2004 2003 2002 2001 Monthly Earnings Averaged More Than: $860 $830 $810 $800 $780 $740

After the three-year reentitlement period, a disability recipient'benefits completely terminate s if the recipient engages in substantial gainful employment. Id. § 404.1592a(a)(3). Thereafter, the recipient must be re-determined by the SSA as disabled. Nonetheless, after a recipient'benefits s cease because her earnings are substantial, the recipient has five years during which she can request that the SSA restart her benefits without a new application if the participant is unable to continue to work because of her condition (referred to as the expedited review period). 2. Schneider' signed representations to the SSA made in 2004 were relied upon in s determining her eligibility for benefits indicated in Exhibit 74. With this regulatory background, the judicial estoppel determination is clear. According to Schneider'testimony, she began receiving social security benefits when she was 18 years of age. s

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[Trial Transcript 228:12-14.] According to the SSA, the first month in which she performed " services" (earned in excess of a set limit for the month) occurred in June of 2001. [Pls Ex. 74-4.] Schneider worked for periods of time, including the complete years of 1989 through 1991, 1994 and 1996, but the SSA did not use any of these dates for purpose of the trial work period. [Pls Ex. 74-3.] Either Schneider did not have sufficient income in any month in these years to satisfy the " services" threshold or ­ because Schneider had about a five-year break in employment from 1996 to 2001 ­ she did not satisfy the requirements because of the rolling five-year basis. Regardless, beginning June of 2001, Schneider had monthly income in excess of the services level ($530 in 2001) to begin her trial work period. Schneider continued to perform " services" July in and August of 2001. These three months were counted for the trial work period. Considering Schneider' trial work period began June of 2001, she was allowed to perform services for nine s months through June of 2006 without affecting her benefits. Accordingly, she had six months remaining prior to her employment with Landvest (or until October of 2002). October 2002 was the same month that Schneider wrote to David Mason and requested that her pay no longer be split evenly between her and Wymer so she would not be " dropped by Social Security." [Ex. A001700001.] According to the SSA letters to Schneider, she again performed services under her trial work period the first six full months after she began employment with Landvest (May through October of 2002). [Ex. 74-3.] Schneider'nine months of trial work ended in October of 2002. s After Schneider'trial work period ended in October of 2002, she entered her reentitlement s period, which ended October of 2005. The reentitlement period would allow Schneider to continue to work but it would restrict her earnings if she desired to maintain disability benefits. During the reentitlement period, the SSA determined that Schneider engaged in substantial gainful employment

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the last three months of her employment with Landvest (February through April of 2003), because she had monthly earning in excess of the substantial level at that time ($800).1 [Ex. 74-74-3.] Since Schneider performed substantial gainful activity during these periods, she was not entitled to the full amount of disability she received. The SSA is now requiring that Schneider re-pay over $4,000 in benefits that she should never have accepted. [Ex. 74-8, 74-14.] Schneider has acknowledged that she received benefits to which she was not entitled, as evidenced by her initial payment of a refund, acknowledged by the SSA in its letter of September 21, 2005, and noted in handwriting on Schneider'original documents filed with the court. [Ex. 74-12, 74-7.] However, Schneider never s lost disability status during this period because she was in a reentitlement period, which allowed her to conveniently stop and restart benefits depending on her earnings level; this gave SSA the impression she was not engaged in " substantial gainful activity."Schneider clearly understood this $800 threshold and tried to manipulate the system (as evidenced by her October 2002 letter to David Mason) requesting that Wymer receive her portion of the salary wage so she would appear not to be engaged in substantial gainful activity. [Ex. A0017-0001.] Because Schneider'reentitlement period ended in October of 2005, if she were to engage in s substantial gainful activity after that time, her disability benefits would have terminated. While Schneider was able to continue to work, she could not engage in substantial gainful activity based on her representations to SSA. Interestingly, as of an SSA letter dated July 22, 2005, Schneider had

stopped working at any substantial level. [Ex. 74-7.] The 15-pages of letters from the SSA marked as Exhibit 74, show: 1. On May 11, 2004, Schneider was asked by the SSA to " sign, date, and return the completed form"that " for facts we need to know." At that time, she was asks

1 Schneider also engaged in substantial employment after leaving Landvest, having earnings in excess of the 2004 limit

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provided a pamphlet " Working While Disabled. . . How Social Security Can Help,"
2 and told that the Administration was needing " know more about your work." On to

the second page of the letter, the form is referred to as a " Work Activity Report." [Ex. 74-1 and 74-2.] 2. On May 3, 2005, Schneider was informed that based on the information received, her " disability ended because of substantial work November 2002" that she was not and entitled to payments for " February 2003 through April 2003 and August 2004 through April 2005." The Administration stated that it considered " your [Schneider' signed statement regarding work and earnings" evaluating her claim. s] in This letter invited Schneider to provide the Administration with " more information before [making their] decision final."[Ex. 74-3.] The signed statement referred to by SSA was not included in Plaintiffs' Exhibit 74. 3. On July 22, 2005, Schneider was informed that the Administration had made its decision regarding her receipt of benefits. The Administration determined that Schneider is " longer entitled to Social Security Disability payments for February no 2003 through April 2003 and January 2005 through February 2005 because of substantial work." Because Social Security did not stop Schneider' checks in a s timely manner, she was paid $4,145.30 too much in benefits. Schneider was notified that she had 60 days to appeal the determination to the Administration. [Ex. 74-7; 74-8; 74-9.]

($810) from August through December of 2004 and the 2005 limit ($830) for January through April of 2005. 2 This request was received, and Schneider'response was mailed, over one year after Schneider resigned her employment s with Landvest; five months after she filed this lawsuit; and two months after she was deposed in this lawsuit.

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4.

On September 21, 2005 (60 days following the arrears notification) SSA sent Schneider a letter acknowledging receipt of $30.00 from Schneider for repayment of the amount owed to the Administration. [Ex. 74-12.]

5.

On October 3, 2005, Schneider was informed of a change in her repayment withholding schedule used to collect the Social Security benefits paid in error. There is no indication as to why Schneider'withholding schedule was changed. [Ex. 74s 14.]

The SSA letter dated May 11, 2004, enclosed Form SSA-821-BK as evidenced by the notation on that letter and its text, " enclosed form asks for facts we need to know" the The and reference to the form at the bottom of the page. [Ex. 74-3.] A sample Form SSA-821-BK is

attached hereto as Exhibit B. Schneider was required to " sign, date and return the completed form within 15 days." Id. Schneider returned this form as a disability recipient, or, if she did not, her benefits would have been suspended. Id. § 404.1596(2)(i). This, coupled with a subsequent SSA letter dated May 3, 2005 whereby the Administration explained that it based its decision on " your signed statement regarding work and earnings," conclusive evidence that Schneider returned the is requested form. [Ex. 74-3.] But the completed form is omitted from the proposed Exhibit. Plaintiffs obviously do not want this statement in the record. Schneider'counsel has refused s as recently as last week to return a signed release for this information and asserts that Schneider never completed the form. A copy of this relevant e-mail exchange and Plaintiffs' counsel'letter dated s November 1, 2005 is attached hereto as Exhibit C and D.

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As the attached sample Form SSA-821 clearly indicates the completed form would provide undisputed evidence regarding Schneider'representations to the SSA about the number of hours that s she worked and her ability to engage in substantial gainful activity. 3 3. Schneider'affirmatively obligation to notify Social Security of any increase in the s amount of work is relevant to whether Schneider reported her alleged overtime worked to SSA and should be made as part of the record in response to Plaintiffs' Exhibit 74. A social security recipient has an affirmative obligation to keep the SSA advised of her status. A social security recipient must contact the SSA under specified circumstances, including: (1) improvement in the disabling condition; (2) a return to work; (3) an increase in the amount of work; or (4) an increase in earnings. 20 C.F.R. § 404.1588. When Schneider began employment with Landvest, she was required to report this information to the SSA. According to SSA documents, Schneider did not work from September of 2001 until she started with Landvest in April of 2002, so she returned to work within the meaning of the reporting rule. [Ex. 74-3.] This Court is entitled to know what Schneider reported to the SSA about her employment with Landvest. Specifically, did

3 In addition to this form, a release for related records from the SSA would most likely turn up additional information that was relied

upon by the SSA in awarding benefits. In a letter dated September 21, 2005, the SSA advised Schneider that it would set aside her current disability benefits to satisfy her ineligible receipt of benefits. [Ex. 74-12.] The SSA would keep her entire payments for the months of September of 2005 through December of 2005 and a portion of January of 2006. Not long thereafter, in a letter dated October 3, 2005, the SSA advised Schneider of a new repayment plan, under which it would withhold only a small portion of her benefit payment beginning October of 2005 through December of 2008. [Ex. 74-14.] When a social security recipient disagrees with the schedule for repayment of an overpayment, the recipient may request that the SSA reconsider the schedule. To do so, a recipient completes Form SSA-632-BK. A sample of this form is attached hereto as Exhibit E. Without being contacted, it is highly unlikely that the SSA changed its repayment schedule to accept less of a payment over a longer period of time on its own initiation and within only a few weeks of its first decision. Schneider most likely requested a new schedule. Based on the information requested by Form SSA-632-BK, this form would also provide the Court with information about Landvest and Schneider'employment therewith, considering she improperly received benefits while s employed with Landvest. The form might also shed light on her credibility as to her knowledge that she was improperly receiving benefits. Schneider would be hard pressed to argue to the SSA that she did not know her benefits were in jeopardy based on her testimony demonstrating her knowledge of the trial work period, the earnings levels and that employers in the past had adjusted her pay to keep her qualified for benefits. [Def. Ex. A0017-0001; Record 229:23-230:2.]

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Schneider fulfill her affirmative obligation and report the increase in amount of work of 40-60 hours a week that she claims in this lawsuit? Further, Schneider arguably should have reported her change in work after Landvest as well, and it is unclear whether she did this or affirmatively concealed it in any way. Accordingly, in addition to the two Forms SSA-821 and SSA-632-BK, Landvest requests a release of Plaintiffs' Social Security records submitted, created or received both during and after her employment with Landvest (April 2002 to the present). C. Defendants are entitled to a post-trial discovery order for the limited release of Plaintiff Schneider'Social Security Records under Plaintiffs' s continuing duty to supplement discovery responses. Control of discovery lies in the sound discretion of the district court. See Martinez v. Schock Transfer & Warehouse Co, 789 F.2d 848, 850 (10th Cir. 1986). A district court has the authority to order a plaintiff to provide a written consent for the release of social security records. Rodriguez v. IBP, Inc., 243 F.2d 1221, 1230 (10th Cir. 2001) (citing to United States ex rel. Woodard v. Tynan, 776 F.2d 250, 252 (10th Cir. 1985 (en banc) (federal district courts have authority to order defendants to request release of their records from parties maintaining them so defendants can comply with discovery obligations)). A party has a continuing duty pursuant to Fed. R. Civ. P. 26(e) to supplement its responses and disclosures upon learning that the information disclosed was incomplete even after discovery closes. See Rodriguez v. IBP, Inc., 243 F.3d 1221, 1229-1230 (10th Cir. 2001).

Plaintiffs attached 15-pages of Social Security documents to their Motion. Defendants have never seen these documents before Plaintiffs filed their motion to supplement the record with correspondence from the SSA. In conferring on this issue, Plaintiffs' counsel asked whether Defendants would object to the record being supplemented with letters from Social Security to Plaintiff Schneider granting her the ability to work during a one-year period. Defendants responded

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to this request stating that it would consider this request but would like to see all of Plaintiff Schneider'Social Security records that were requested before trial but Plaintiffs' s counsel refused to produce. Counsel for Plaintiffs did not respond but rather filed in their Motion to Supplement the Record immediately. Plaintiffs' proposed Exhibit 74 is relevant to these proceedings and could be included in the record if it were complete. However, if Exhibit 74 is included in the record, Defendants request the Court allow the record to be supplemented with the entire span of correspondence sent by both Plaintiff Schneider and the SSA during Plaintiffs' employment to the present. Defendants sought these records both during discovery and after discovery when Defendants learned of the SSA'review s of Plaintiffs' benefits in 2005. Plaintiffs not only refused to produce this information prior to trial but also failed to comply with their continuing duty to disclose these documents under Rule 26(e)(2). Plaintiffs claimed that the release encompassed private information and was not relevant to Plaintiffs' claims. See Exhibits F and G attached hereto. Plaintiffs' failure to supplement its discovery with these records and Defendants' recent discovery before trial of the SSA' review of Schneider' s s benefits entitle Defendants to an order for the production of these records and a complete supplementation of the record. 1. Plaintiffs failed to comply with their continuing duty to disclose these documents under Rule 26(e)(2). On April 5, 2004, Defendants served its First Set of Request for Production of Documents requesting several categories of documents that would encompass the records sought here today. Specifically, Defendants requested and Plaintiffs responded: Request No. 1: All documents that may have been prepared, maintained, or received by Plaintiff (other than privileged attorney/client communications) that in any way pertain to, evince, or support any and/or all of Plaintiff' claims in this lawsuit, s

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including, but not limited to, any documents maintained by you that contain any notations concerning the events relating to or referring to the subject matter of this litigation. Plaintiffs' Answer: All such documents have been produced. Request No. 2: All documents, of any form or nature, prepared or signed by Plaintiff or any person other than Plaintiff that in any way pertain to, evince, or support Plaintiff'allegations or claims for damages in this lawsuit. s Plaintiff'Answer: All such documents have been produced. s Request No. 3: All documents relating to any of the factual allegations in Plaintiff' s Complaint. Objection: The request is overly broad and vague. Plaintiff'Answer: Without waiving the foregoing, Plaintiff believes all such s documents have been produced. Request No. 6: Copies of any documents prepared by, or referring to, Plaintiff regarding his employment with The Landvest Corporation Plaintiff' Answer: All such documents in the possession or control of s Plaintiff have been produced. Request No. 10: All documents relating to your employment with and/or separation from The Landvest Corporation. Plaintiff' Answer: All such documents in the possession or control of s Plaintiff have been produced. Request No. 14: All documents which relate to or support your claim for a monetary award of any amount in this case. Plaintiff' Answer: All such documents in the possession or control of s Plaintiff have been produced. Request No. 15: All documents that you have made or developed that relate to your claim(s) in this case. Plaintiff' Answer: All such documents in the possession or control of s Plaintiff have been produced. A copy of Plaintiffs' Responses to Defendants' First Set of Requests for Production to Plaintiff Charlotte Schneider, served May 12, 2004, are attached hereto as Exhibit F.

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In addition, Defendants also served the following interrogatory requests and received the following responses on May 12, 2004: Interrogatory No. 4: Excluding the present lawsuit, please identify all lawsuits, litigation, claims or charges filed with any federal, state or local court, agency or administrative body, including but not limited to any and all civil rights claims, employment discrimination claims, workers compensation claims, and/or claims for breach of contract, that have been initiated by or on behalf of you, or against you, by stating the style, case or charge number, nature and subject matter of, parties to, date of initiation of, and the resolution (if any) of, the suit, complaint, claim or charge; and identify each document related thereto. Plaintiff'Answer: None. s Interrogatory No. 6: Identify by source, date and amount of all income or monies (including, but not limited to, wages earned, Social Security benefits, unemployment compensation, worker'compensation, disability benefits (long and/or short term), s retirement benefits, public assistance benefits, investment income, business income, etc.) that you have received or applied for from the date of your separation from employment with Defendant through the present and, for each application of benefits, state the date of such application, the name and address of any counsel representing you, the basis of such application, the determination of the agency involved, the current status or final disposition of the application including any appeals, and the benefits or assistance received, and execute and return the attached Authorization to Release Records. Objection: The interrogatory requests that the Plaintiff disclose information about her financial affairs since the termination of her employment. No claim in this case is made for wrongful termination. This a claim for wages under the federal Fair Labor Standards Act. Financial Records are recognized by federal law to contain private and sensitive information. Plaintiff has not placed her financial affairs at issue in this case. It is so extremely unlikely that the requested financial information could lead to the discovery of admissible evidence in this case that Plaintiff objects to allowing Landvest Corporation access to these records. Plaintiff disclosed at her deposition that she is a recipient of Social Security Disability benefits. Allowing access to her records with the Social Security Administration would allow Defendants access to medical information. Plaintiff has not placed her medical condition at issue in this case. The request represents an unwarranted intrusion on the privacy of the Plaintiff, is not likely to lead to the discovery of admissible evidence and is part of a plan by Landvest Corporation and its attorneys as evidence by

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questioning at Plaintiff'deposition, to defeat enforcement of the federal Fair s Labor Standards Act by engaging in a wholesale invitation of Plaintiff' s privacy in order to annoy, embarrass, and burden the Plaintiff. The interrogatory does not represent a good faith attempt to discover information which might lead to evidence which would be admissible at trial. Plaintiff'Answer: Without waiving the foregoing, Plaintiff disclosed at her s deposition all employment since the termination of her employment with Landvest Corporation and the fact that she is the recipient of Social Security Disability benefits. A copy of Plaintiffs' Responses to Defendants' First Set of Interrogatories to Plaintiff Charlotte Schneider, served May 12, 2004, are attached hereto as Exhibit G. Defendants became aware that Ms. Schneider had been receiving Social Security Disability benefits since she was 18 years of age at her deposition in April of 2004. It requested records and information from Plaintiff regarding her statements made to the Administration regarding her employment in its discovery requests. The day before Plaintiff Schneider served her discovery responses, she received a request from the SSA for her to fill out and return the " enclosed form [asking] for facts we need to know," Form SSA-821-BK (as indicated at the bottom of the letter), which specifically asked Plaintiff to verify the " Number of Hours (on average) Worked" Landvest. for [Ex. 74-1, dated May 11, 2004; see also Defendants' Exhibit B attached.] As argued above, Plaintiffs' Exhibit 74 conclusively establishes that Plaintiff Schneider returned this form. Yet, after she served her discovery responses on May 12, 2004, she never supplemented her discovery responses with a copy of this form which would have been in her possession. 2. Defendants sought the production of this information after the close of discovery upon learning that the SSA was reviewing Plaintiff Schneider'benefits. s During discovery, Defendant Landvest was informed by Plaintiff Schneider that the last review that she had went through was two years prior to her employment with Landvest. Schneider also represented, as set forth above, that she had produced all records or documents relating to her
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statements made regarding her employment. See generally, attached Exhibits F and G: Plaintiffs' discovery responses. Defendant was unaware of any further representations to the SSA until it received a request for information from the SSA in March of 2005 regarding Schneider' s employment. This request was received after discovery had closed. A copy of that request is attached hereto as Exhibit H. Upon receipt of this request, counsel for Defendants waited sufficient time for the Department to receive the requested information from both parties and make a determination of benefits. On June 14, 2005, Counsel for Defendants forwarded a second release for records from the SSA to Plaintiff Schneider and requested that the form be signed and returned. A copy of Defendants' letter dated June 14, 2005 is attached hereto as Exhibit I. When Plaintiff did not respond to this request, a subsequent e-mail was sent on July 12, 2005 to Plaintiffs' counsel pointing out the relevance of the newly discovered information. Specifically, Defendants counsel pointed out: The letter from SSA indicated that she worked for Landvest from ` 01/01/02 to the Present' and that " is not the case and we would like to obtain the information " this that Charlotte submitted to SSA to see what, if any, other inconsistent information was given regarding the terms, dates or compensation relating to her employment. Further, by the very nature of requesting disability benefits, Charlotte would have had to fill out extensive paperwork on her job responsibilities and what she was able to do or not to do. This of course speaks to her claim of unpaid wages. A copy of counsel'July 12, 2005 e-mail is attached hereto as Exhibit J. Plaintiff refused to return s the release and on August 9, 2005, Defendants provided notice to Plaintiffs that a subpoena would be issued to the SSA. A copy of counsel' August 9, 2005 letter is attached hereto as Exhibit K. s Plaintiff served her formal objections to the subpoena on August 22, 2005 stating that " you proceed if to serve the subpoena your subpoena will not be honored by the SSA and we will seek sanctions."A copy of Plaintiffs' counsel'August 22, 2005 letter is attached hereto as Exhibit L. With less than s one month before trial was to begin, it was clear that it was unlikely that any subpoena for records

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would produce the records before trial. With trial imminent, Defendants did not seek a court order for the production of these records. It was also clear from Plaintiffs' actions and her own admission she was judicially estopped. At trial, it was Plaintiffs' counsel who first brought up the issue of Schneider'receipt of s Social Security benefits. On cross-examination, when questioned about her request to divide her pay unevenly, Schneider testified as follows: Question: And are you familiar with the Social Security term " substantial gainful activity" ? Schneider: Yes, I am. Question: And have you represented to the Social Security Administration that you are not able to engage in substantial gainful activity? Schneider: What I have reported to them is I filled out their papers and put in the amount that I was earning. Question: Which is an amount less than substantial gainful activity, correct? Schneider: At times, yes. ... Question: And your purpose in asking this was so that you could receive, continue to receive, your Social Security benefits without going over that limit of substantial gainful activity? Schneider: Without losing my insurance Question: And your purpose in asking this was so that you could receive, continue to receive, your Social Security benefits without going over that limit of substantial gainful activity? Schneider: Without losing my insurance. Question: Okay. So you could still get the benefits. Schneider: Yes. [Trial Transcript 228:19-4; 230:3-8.]

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Plaintiff clearly was claiming she worked overtime to the court while indicating she could not engage in such substantial work to the SSA. Because the SSA had not reviewed Schneider'benefits s until 2004, Defendants had no notice of Schneider working during a trial period, reentitlement period or being disqualified for benefits until Plaintiff requested Exhibit 74 be entered into the record. Exhibit 74, as a complete record of Plaintiff'representations to Social Security, is relevant to the s determination of whether Plaintiff should be estopped from benefits. The documentation submitted by Plaintiff during that period was relied upon by the SSA. Exhibit 74 should only come into the record as a complete, is equally relevant and must become part of the record. In a situation similar to the one at hand, the Tenth Circuit upheld a district court'order for s the production of a release for social security records and issued sanctions to the plaintiff'counsel s (that ultimately exceeded the monetary judgment awarded to the plaintiff) for failing to turn over the requested materials prior to trial. In Rodriquez v. IBP, Inc., an employer uncovered additional evidence regarding the employee'receipt of social security benefits three weeks prior to trial and s requested the production of the information but the employee only produced the record of payment. 243 F.3d 1221 (10th Cir. 2001). The employee also failed to supplement its discovery responses in violation of his obligation under Fed. R. Civ. P. 26(e) with the requested information. 243 F.3d at 1229. Through a motion in limine at trial, the employer sought to limit the plaintiff'economic s damages to a specific time frame for not receiving the requested documents. The employer made no mention of an estoppel argument. However, after trial, when the employee testified as to a different start date for receiving benefits, the employer raised for the first time an estoppel argument that the employee should be precluded from recovering under the Americans with Disabilities Act based on anticipated statements that were made to the SSA regarding the nature and extent of his disability.

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The court acknowledged that the employer " could have been more aggressive"in getting the information, but noted that it pursued discovery seeking the relevant information and there was no authority for precluding the recovery of the information post-trial. 243 F.3d at 1229. The dispute between the parties post-trial in this case is even more egregious to the Defendant than the one seen in Rodriguez. Here, not only have Defendants made every effort to pursue this information both during and after discovery, Defendants most recent attempts to secure a limited release upon receiving Plaintiffs' proposed Exhibit 74 have been blocked by Plaintiffs. Defendants are equally concerned that this Court will be misled by the recent arguments regarding Plaintiffs' receipt of Social Security benefits. Specifically, Plaintiffs' Exhibit 74 has been submitted by Plaintiffs to argue that Defendants " both derelict in honoring its obligations under the is FLSA and its understanding of SSDI, as well as mendacious."Defendants seek nothing more than a blind production of any information, statements or documents submitted to or received by Plaintiff Schneider from the SSA during and after her employment with Landvest. This information will not only establish Defendant honored its obligations under the FLSA and that it fully understands SSDI given Plaintiffs' recent submission of SSA records; but that Plaintiff Schneider is the mendacious party in this action. For these reasons, Defendants do not oppose the admission of Plaintiffs' Exhibit 74 if it contains the complete file from the SSA regarding Schneider'representations about her ability to s engage in substantial gainful activity. Defendants respectfully request that the Court order Plaintiff Charlotte Schneider to provide a limited release for her Social Security records, attached hereto as Exhibit A. Defendants further request that the Court withhold its ruling on the merits of Plaintiffs' claims until such records are obtained and allow Defendants to supplement the record with these Social Security documents.

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C.

In the alternative, Defendants request that it be allowed to Supplement its Proposed Findings of Fact to address issues of award of Social Security Benefits Addressed in Plaintiffs' Supplemental Findings of Fact and Conclusions of Law. On October 31, 2005, the Court granted Plaintiffs' Motion to Supplement its Proposed

Findings of Fact Concerning the Doctrine of Judicial Estoppel and gave Defendants the opportunity to respond to Plaintiffs' Motion to Supplement the Record. [Doc. 136.] Plaintiffs' moved for the admission of fifteen pages of documents Plaintiff Schneider received from the Social Security Administration, arguing that these records were [Doc. 135.] Plaintiff argued that the attached letters showed that " there is no inconsistency between working and receiving Social Security Disability benefits," failure to include the correspondence would allow counsel for Defendants to mislead and the appellate court. [Doc. 135, p.3.] Likewise, Plaintiffs' Counsel'arguments in their Supplemental s Findings of Fact and Conclusions of law addressing these records and the SSA' procedure in s allowing continued benefits is misleading. Only an admission of all of Plaintiffs' Social Security records relating to statements made regarding her employment with Landvest would provide this Court, and any appellate court, with a clear understanding and appreciation of Plaintiffs' inconsistent statements. For these reasons, Defendants offer the attached Supplemental Findings of Fact and Conclusions of Law only in the alternative should this Court deny Defendants' request for order for the release of Social Security Records. A copy of Defendants Supplemental Findings of Fact and Conclusions of Law Re: Judicial Estoppel and Social Security Correspondence are attached hereto as Exhibit M. WHEREFORE, Defendants request that the Court allow it to supplement its Findings of Fact and Conclusions of Law as attached Exhibit M to respond to Plaintiffs' reference to Social Security Disability benefits. Defendants oppose Plaintiffs' request to supplement the record with Exhibit 74 as

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the record is clear as to the inconsistent statements made by Plaintiff. The admission of Exhibit 74, without the complete Social Security file, only muddles the record and is misleading to Court. Therefore, Defendants do not oppose the admission of Plaintiffs' Exhibit 74 if complete and move the Court for an order requiring Plaintiff Charlotte Schneider to provide a limited release for her Social Security records. Defendants further move the Court to withhold its ruling on the merits of Plaintiffs' claims until such records are obtained and allow Defendants to supplement the record with these Social Security documents. Respectfully submitted, KUTAK ROCK LLP By: s/ Alan L. Rupe 11/07/2005 Alan L. Rupe, KS Bar # 08914 Stacia G. Boden, KS Bar # 20295 8301 East 21st Street North, Suite 370 Wichita, Kansas 67206-2295 Telephone: (316) 609-7900 Facsimile: (316) 630-8021 [email protected] [email protected] ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE I hereby certify that on the 7th day of November, 2005, I electronically filed the foregoing DEFENDANTS' MOTION TO SUPPLEMENT FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING PLAINTIFFS'REFERENCES TO SOCIAL SECURITY; DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION TO SUPPLEMENT RECORD WITH CORRESPONDENCE FROM SOCIAL SECURITY ADMINISTRATION AND, IN THE ALTERNATIVE, MOTION FOR ORDER FOR PRODUCTION OF RECORDS AND MOTION TO SUPPLEMENT RECORD WITH SOCIAL SECURITY RECORDS with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following:

Donna Dell' Olio Ian David Kalmanowitz CORNISH AND DELL' OLIO 431 North Cascade Avenue, Suite 1 Colorado Springs, CO 80903 Phone: (719) 475-1204 Facsimile: (719) 475-1264 [email protected] [email protected] Attorney for Plaintiffs s/ Alan L. Rupe 11/07/2005 Alan L. Rupe KUTAK ROCK LLP [email protected]

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