Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-02435-PSF-PAC LILLIAN F. SANDLE, Plaintiff, v. R. JAMES NICHOLSON , Secretary of Veterans Affairs, Defendant.

FINAL PRETRIAL ORDER 1. DATE AND APPEARANCES The date of the Pretrial Conference was October 6, 2006 at 2:30 pm. Dugan Bliss, Anne Turner and Eric Howard appeared for the Plaintiff. Michael Johnson and Mark Pestal appeared for the Defendant. 2. JURISDICTION This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, 42 U.S.C. § 2000e and 29 U.S.C. § 791 et seq. Venue is proper. Defendant denies jurisdiction to the extent that plaintiff has failed to exhaust her administrative remedies. 3. CLAIMS AND DEFENSES This is an action for damages and reinstatement resulting from violations of Title VII and the Rehabilitation Act. A. Plaintiff's Claims Plaintiff, Lillian F. Sandle ("Sandle") filed her Second Amended Complaint on November 4, 2005. In her Second Amended Complaint, Sandle asserts that Defendant, R. James Nicholson, Secretary of Veterans Affairs ("Defendant") retaliatory actions against Sandle violated Title VII and the Rehabilitation Act. In addition, Sandle asserts that Defendant failed to appropriately and adequately accommodate Ms. Sandle's disability, in violation of 29 C.F.R. § 1630. Specifically, Sandle asserts the following claims against Defendant: Count I: Violation of the Rehabilitation Act ­ Failure to Accommodate Sandle's claim of disability discrimination/failure to accommodate under the Rehabilitation act is as follows:
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1. At the time Sandle was terminated from her Claims Clerk position in Medical Administration Services, and when she was terminated from the VA, she was disabled in that she: (1) had a physical impairment that substantially limited her major life activities (including her ability to work); (2) had a record of such an impairment (numerous VA records, including Dr. Steven Oboler's May 17, 1991 memorandum); and (3) was regarded as having such an impairment by the VA (as the VA terminated Sandle for disability). 2. At the time Sandle was terminated from her Claims Clerk position in Medical Administration Services, and when she was terminated from the VA, she was otherwise qualified for that Claims Clerk position. Sandle was placed in that position because the VA thought it would be able to meet her medical restrictions and she would perform work within her knowledge, skills, and abilities. And indeed, she did perform that position in a manner clearly above that expected of a fully competent employee. 3. Finally, as numerous VA documents state, Sandle was terminated due to her disability. The VA cannot prove by a preponderance of the evidence that Sandle's termination from her Claims Clerk position and from employment with the VA would have taken place even in the absence of the impermissible disability discrimination ­ indeed, the VA has admitted as much. Nor can the VA show that accommodating Sandle would have been an undue burden. Thus, the VA discriminated against Sandle based on her disability under the Rehabilitation Act. Count II: Violation of Title VII & the Rehabilitation Act ­ Retaliation Sandle's claim of retaliation under Title VII and the Rehabilitation act is as follows: 1. Sandle engaged in protected opposition to discrimination, including at least seven formal complaints to the EEOC, at least 57 written records of complaints to her superiors, and countless oral complaints to her superiors. 2. Sandle suffered the following materially adverse actions that a reasonable employee would have found to be materially adverse: (1) her below average proficiency rating on May 28, 1987; (2) her placement on long-term leave without pay beginning November 27, 1987; (3) her unsatisfactory proficiency rating on March 23, 1988; (4) the termination of Sandle's Claims Clerk position and transfer to leave without pay status in October and November 1990; and (5) her termination from the VA on June 29, 1991. The VA also consistently acted in a manner that evidences their retaliation against Sandle; those acts are identified in Sandle's response to Defendant's Interrogatory #1. 3. A causal connection existed between Sandle's protected activity and the materially adverse actions she suffered, as detailed in Sandle's Opposition to Defendant's Motion for Summary Judgment. To the extent that the VA argues that it had any legitimate, non-discriminatory reason for taking any of these materially adverse actions, those reasons are mere pretext, as detailed in Sandle's Opposition to Defendant's Motion for Summary Judgment. Defendant's Statement of Defenses and Counterclaim In response to Sandle's claims, Defendant has asserted the following defenses: Despite the numerous allegations plaintiff has made against her former employer over many years, the VA at all times relevant hereto treated plaintiff in a good faith manner and took no adverse action against her in violation of the Rehabilitation Act or Title VII of the Civil Rights Act of 1964, as amended. Specifically, plaintiff, who was employed as nurse at the Department of Veterans Affairs Medical Center (VAMC) in Denver, Colorado, from 1986 to
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1991, asserts two claims against the defendant: (1) that the VA discriminated against her based on account of a physical disability (lower back injury) when she was not provided a reasonable accommodation; and (2) that she suffered retaliation for protected EEO activity in which she engaged when she was removed from a clerk position and later separated from the VA. Failure to accommodate. With respect to plaintiff's Rehabilitation Act claim, this Court lacks jurisdiction to entertain it. On September 28, 2006, the defendant filed a motion to dismiss Count I for lack of jurisdiction due to her failure to exhaust her administrative remedies. (Doc. 266). Plaintiff may not raise a claim for the first time in her judicial complaint that she did not present to the agency during the EEO administrative process and which was fully and timely exhausted. With respect to plaintiff's claim for failure to accommodate her disability, she fails to state a claim because she is not disabled. She did not have a record of disability nor was she regarded as disabled. Plaintiff was not a qualified individual with a disability. Plaintiff was not denied an accommodation because even with an accommodation she could not perform the essential functions of her position, which included physical requirements. The Claims Clerk position in Medical Administration Service was not a reasonable accommodation. The VA did not have an existing policy at the time that would have permitted plaintiff to be placed permanently in the Claims Clerk position, a GS-4 position, and continue to receive her GS-9 salary. The temporary detail as a Claims Clerk at MAS was not a funded vacant permanent position. Plaintiff never requested to stay in the Claims Clerk position on a permanent basis at a GS-4 salary level. Plaintiff is unable to identify any other employee who was assigned on a permanent basis to another position, due to a work-related injury, for which the employee continued to receive his or her prior salary while now performing work in the new permanent assignment which was at a much lower grade level and much lower salary. Plaintiff did not engage in good faith in the interactive process to reach an accommodation. As of the date plaintiff's accommodation claim accrued, she was not entitled to reassignment under the Rehabilitation Act of 1973. Accommodation would have posed an undue hardship upon the VA. Retaliation. As to plaintiff's retaliation claim(s), this Court again lacks jurisdiction due to plaintiff's failure to exhaust her administrative remedies, and/or to timely exhaust her administrative remedies. The defendant denies that the VA retaliated against her. Plaintiff cannot make out a prima facie case of retaliation. The defendant denies that she was subject to an adverse employment action on account of her protected EEO activity. She cannot show that the alleged retaliating official(s) knew of her prior EEO activity. There is no causal connection between her prior activity and any subsequent allegedly retaliatory action. The VA's actions were taken for legitimate, non-discriminatory and non-retaliatory business reasons. Other defenses. In addition to the grounds stated in its motion to dismiss, plaintiff's claims are also subject to dismissal for otherwise failing to exhaust her administrative remedies. Plaintiff did not fully exhaust each discrete claim of discrimination or retaliation she seeks to maintain. Finally, plaintiff filed to timely file this civil action within the prescribed 90-day deadline. Plaintiff's claims are barred by the doctrine of estoppel and accord and satisfaction because she retained the consideration paid to her as part of a global settlement agreement that was later invalidated. Plaintiff is liable to the VA for the money unjustly retained as set forth in
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its counterclaim. As to plaintiff's claim for damages, because her claims pre-date the Civil Rights Act of 1991, she is not entitled to compensatory damages but only damages for lost pay or benefits. Even if plaintiff were to prove a pecuniary loss, she failed to mitigate her damages. To the extent that damages are assessed, the VA is entitled to a setoff for amounts already paid, including interest thereon. The defendant incorporates herein by reference as if set out in full, the other defenses set forth in his answer. B. Defendant's Counterclaim Defendant has asserted a counterclaim against Sandle in this matter for restitution/unjust enrichment. In response to Defendant's counterclaim, Sandle has raised the following defenses: a. Defendant fails to state a claim upon which relief can be granted. b. Defendant's claim is barred, in whole or in part, by the doctrine of unclean hands. c. Defendant has failed to mitigate his damages, if any, as required by law. d. Defendant's claim is barred, in whole or in part, by Counterclaimant's own prior breaches. e. Defendant's claim and damages, if any, are barred by the doctrines of laches, waiver and/or estoppel. 4. STIPULATIONS Ms. Sandle began working for the Department of Veterans Affairs ("VA") Medical Center ("VAMC") in Marlin, Texas in 1982. Ms. Sandle subsequently transferred to the VAMC in Denver and worked there from 1986 through June 29, 1991. Ms. Sandle had earned a bachelor's degree in nursing and was a Registered Nurse at all times relevant to this case. On January 2, 1987, while working in the Nursing Home Care Unit of the VAMC ("NHCU"), Ms. Sandle injured her back while attempting to transfer a NHCU patient from his bed to a wheelchair. Ms. Sandle's injury eventually improved and she returned to Staff Nurse duty in the NCHU in July, 1989. On September 12, 1989, Ms. Sandle re-injured her back while helping another nurse transfer a patient from a wheelchair to his bed. From November 26, 1989 to November 17, 1990, Ms. Sandle worked in a light duty temporary detail assignment as a Claims Clerk in Medical Administrative Services ("MAS"). The VAMC terminated Ms. Sandle from her employment on June 29, 1991. 5. PENDING MOTIONS A. Plaintiff's Motion for Partial Summary Judgment on the issue of liability for violation of the Rehabilitation Act for Defendant's termination of Sandle for disability, filed on September 1, 2006 [Dkt. 242]. The Motion is anticipated to be fully briefed within fifteen (15) days of Defendant's submission of its response. B. Defendant's Motion of Summary Judgment as to all claims, filed on September 1, 2006 [Dkt. 243]. Plaintiff filed her response on September 25, 2006 [Dkt. 260] and the Motion is anticipated to be fully briefed upon Defendant's submission of its reply on October 13, 2006. C. Defendant's Motion of Summary Judgment regarding Defendant's counterclaim for restitution/unjust enrichment, filed on September 2, 2006 [Dkt. 244]. Plaintiff filed her response
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on September 25, 2006 [Dkt. 257] and the Motion will be fully briefed upon Defendant's submission of its reply on October 13, 2006. D. Defendant's Motion to Continue Pretrial Conference, Final Trial Preparation Conference and Trial, dated September 15, 2006 [Dkt. 251]. Sandle filed her response on September 22, 2006 [Dkt. 256]. By the Court's order dated September 25, 2006 [Dkt. 259], the Motion is set for oral argument on October 6, 2006 at 2:30 p.m. E. Defendant's Motion to Dismiss Plaintiff's Failure to Accommodate Claim for Lack of Jurisdiction [Dkt. 266]. G. Plaintiff's [Unopposed] Motion to Withdraw Jury Demand 6. WITNESSES List the nonexpert witnesses to be called by each party. List separately: PLAINTIFF IN PERSON / BY NONEXPERT NATURE OF TESTIMONY DEPOSITION WITNESS Plaintiff, Lillian Sandle Testimony will address facts and In person. Contact through counsel circumstances surrounding her Hogan & Hartson LLP discrimination and retaliation claims 1200 17th St., Suite 1500 Denver, CO 80202

a.

DEFENDANT NONEXPERT WITNESS(ES) See Attachment A

NATURE OF TESTIMONY

IN PERSON / BY DEPOSITION

witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); (1) For Plaintiff: Lillian Sandle For Defendant: [See Attachment A] (2) witnesses who may be present at trial if the need arises (see Fed. R. Civ. P.

26(a)(3)(A)); and For Plaintiff: Raymond DeLuna Janet Kost Cynthia McCormack Steven Oboler, M.D. 5
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Edward Sanchez, M.D. Jane Sheldon Janet Toney Martha Weeks Rebecca Newsome Williams Judith Wilson For Defendant: [See Attachment A] (3) witnesses where testimony is expected to be presented by means of a deposition

and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B). For Plaintiff: None. For Defendant: [See Attachment A] b. List the expert witnesses to be called by each party. List separately: NATURE OF TESTIMONY Testimony consistent with the opinions stated in his expert report IN PERSON /BY DEPOSITION In person.

PLAINTIFF EXPERT WITNESS Dr. Maclyn L. Clouse Reiman School of Finance Daniels School of Business 2101 S. University Blvd. Denver, CO 80208 (303) 871-3320 (1)

witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A));

For Plaintiff: Dr. Maclyn L. Clouse For Defendant: [See Attachment A] (2) witnesses who may be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); and For Plaintiff: None. For Defendant: None. (3) 6
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witnesses where testimony is expected to be presented by means of a deposition

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and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B). For Plaintiff: None. For Defendant: [See Attachment A] 7. EXHIBITS Plaintiff:
Exhibit 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Brief Description Records re Sandle's professional qualifications, 6/17/70-2/14/05 VAM C-Marlin, TX: Board Action hiring Lillian Sandle VAMC-Marlin, TX: Proficiency Report re Lillian Sandle VAM C-Marlin, TX: Board Action VAMC Organization Chart - Nursing Service EEOC Appeal # 01850579: Decision VAMC Position Description - Claims Clerk Curriculum Vitae of Lillian Sandle VA Certificate of Completion of Supportive Care of the Elderly VA MP-5, Part I, Chapter 306, "Selective Placement Programs" VAMC-Marlin, TX: Proficiency Report re Lillian Sandle EEOC Appeal # 01852513: Decision Memorandum to Martha W eeks from Lillian Sandle VA Continuing Education Certificate VA Continuing Education Certificate VA Continuing Education Certificate Memorandum to Director of Education from Lillian Sandle Offered Admitted Refused Ruling Reserved Comments

7
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Exhibit 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41

Brief Description Memorandum to Martha W eeks from Lillian Sandle Memorandum to All Professional Nurses from Jane Sheldon Memorandum to Chief, Personnel from Lillian Sandle Memorandum [to Jane Sheldon] from Lillian Sandle Memorandum to Lillian Sandle from Jane Sheldon Memorandum to Lillian Sandle from Jane Sheldon Attending Physician's Statement (Oboler MD) Memorandum to Charolett Day to Faye Sandle Memorandum to Jan Shelton, Chief Nursing Service from Faye Sandle VA Report of Contact re Lillian Sandle, prepared by Jan Kost Memorandum to Martha W eeks from Faye Sandle Memorandum to Martha W eeks from Faye Sandle Complaint Report of Contact Complaint Memorandum to Martha W eeks from Faye Sandle VA Memoranda to Jan Kost and Jane Sheldon from Lillian Sandle Letter to VA Medical Center from Lindenbaum M D Report of Contact by Martha W eeks Memorandum to Jane Sheldon from Faye Sandle Memorandum to Jane Sheldon from Faye Sandle US Dept. of Labor - Restriction Evaluation (Lindenbaum MD) Letter to VAMC from Lindenbaum MD Letter to VAMC from Lindenbaum MD Letter to Jane Sheldon from Lillian Sandle Memorandum for the Records Addendum re Proficiency Report Rating Complaint Memorandum to Fred Salas from Faye Sandle

Offered

Admitted

Refused

Ruling Reserved

Comments

42

8
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Exhibit 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67

Brief Description Memorandum to Lillian Sandle from Martha W eeks Memorandum to Chief, Nursing Service from Michael Pieper Memorandum to Steven Oboler M D from Michael Pieper Memorandum to Michael Pieper from Faye Sandle Memorandum to Director, Personnel Service from Richard Ellison VA Proficiency Report re Lillian Sandle Complaint Memorandum to Judy W ilson from Faye Sandle Board Action Memorandum to Martha W eeks from Faye Sandle Complaint VA Grievance VA assignment of investigator (Kerry Moore) Memorandum to Martha W eeks from Faye Sandle Memorandum to Lillian Sandle from Martha W eeks Complaint Intermanagerial Memo Complaint Report of Contact by Lillian Sandle Complaint Memoranda to Martha W eeks from Faye Sandle Memorandum to Lillian Sandle from Jane Sheldon Complaint Memorandum to Chief Nursing Service from Lillian Sandle Complaint Memorandum to Chief of Staff from Lillian Sandle Letter to VAMC from W einerman MD Letter to VAMC from W einerman MD Report of Contact by Jane Sheldon Memorandum to Jane Sheldon from Steven Oboler M D Letter to VAMC from Lindenbaum MD Complaint to Fred Salas from Lillian Faye Sandle

Offered

Admitted

Refused

Ruling Reserved

Comments

9
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Exhibit 68 69 70 71 72 73 74 75

Brief Description Final Interview of EEO Complaint prepared by Robert Doubleday Complaint Memorandum to Robert Doubleday from Lillian Sandle VA Complaint # 89-441(file date 9/23/87) VA notice of proposed disposition Complaint Memorandum to Martha W eeks from Faye Sandle Memorandum to Jane Sheldon from Lillian Sandle Memorandum to Lillian Sandle from Jane Sheldon Application for Promotion or Reassignment, completed by Lillian Sandle Complaint Memorandum to Jane Sheldon from Faye Sandle Memorandum to Martha W eeks from Lillian Sandle Memorandum to Jane Sheldon from Lillian Sandle Report of Contact by Lillian Sandle Memorandum to Jane Sheldon from Lillian Sandle Memorandum to Fred Salas, Director from Lillian Sandle Memorandum (Report of Contact) to Larry Seidl from Lillian Sandle Memorandum to Martha W eeks from Lillian Sandle Memorandum to Chief, Personnel Service from Jane Sheldon Memorandum to Lillian Sandle from Chief, Nursing Service Memorandum to Lillian Sandle from Jane Sheldon Memorandum to All Nursing Staff from Jane Sheldon Complaint Memorandum to W illa Tribble from Lillian Sandle Memorandum to All Nursing Staff from Jane Sheldon Lillian Sandle Report Complaint Memorandum to Larry Seidl from Lillian Sandle Memorandum to Department of Labor from Lillian Sandle

Offered

Admitted

Refused

Ruling Reserved

Comments

76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92

10
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Exhibit 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117

Brief Description Memorandum for the Records to Larry Seidl from Lillian Sandle VA Complaint # 89-440 (file date 1/4/88) Letter to US Department of Labor from Martha W eeks Memorandum to All Registered Nurses, etc. from Larry Seidl Letter to VAMC from Lindenbaum MD Complaint Report of Contact Memorandum to Chief Nursing Service from Chief Personnel Service Complaint Memorandum to Fred Salas from Faye Sandle R.N. Attending Physician's Report (La Certe, Psy.D.) Complaint Memorandum to Jan Kost from Faye Sandle Incomplete VA form re Lillian Sandle's return to work Memorandum to Chief, Nursing Service from Michael Pieper Memorandum to Lillian Sandle from Martha W eeks Memorandum to Jane Sheldon from Head Nurse, East W ing Memorandum from Faye Sandle regarding EEO Complaints Filed Memorandum from Faye Sandle re EEO Complaints Complaint Memorandum to Leonard Krause from Lillian Sandle Addendum to complaint Complaint Memorandum to Jane Sheldon from Lillian Sandle VA Complaint # 89-441 (file date 6/24/88) Family Focus Inc. Certificate of Participation VA Letter to Lillian Sandle from Ricki Stephenson Memorandum to Judy W ilson from Lillian Sandle Investigative Report re Case # 89-440 by Annette Bailey Investigative Report re Case # 89-441 by Annette Bailey

Offered

Admitted

Refused

Ruling Reserved

Comments

11
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Exhibit 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142

Brief Description Letter to Candace W iggins from Lindenbaum M D EEOC Appeal # 01891998: Decision Letter to M orris Price from Lillian Sandle Letter to M ichael W inn from Lillian Sandle VA Personnel Service Memorandum No. 05-2 Memorandum to All Registered Nurses from Pat Grant Memorandum to Pat Grant from Lillian Sandle Memorandum to Martha W eeks from Lillian Sandle Memorandum to Chief, Nursing Services from Lillian Sandle Memorandum to Jan Kost from Lillian Sandle VAMC Competency Inventory re Lillian Sandle Memorandum to Jane Sheldon from Faye Sandle Memorandum to Jan Kost from Lillian Sandle Memorandum to Lillian Sandle from Judith W ilson Report of Employee's Emergency Treatment Attending Physician's Report (Oboler MD) Memorandum to Judy W ilson from Lillian Sandle Memorandum to Chief, Nursing Service from Karen Sims Continuing Education Certificate Memorandum to Mary Hillard from Lillian Sandle Memorandum to All Nursing Staff from Cynthia McCormack US Dept. of Labor - Restriction Evaluation (Roger MD) Memorandum to Cynthia McCormack from Lillian Sandle Memorandum to Chief, Personnel from Martha W eeks Memorandum to Personnel Officer from Claire Long

Offered

Admitted

Refused

Ruling Reserved

Comments

12
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Exhibit 143 144 145 146 147 148 149 150 151 152 153 154 155

Brief Description EEOC Appeal # 01891998: Granting of Request to Reopen Complaint Memorandum to Martha W eeks from Faye Sandle Memorandum to Martha W eeks from Michael W inn Memorandum to Jan Kost from Lillian Sandle Memorandum to Martha W eeks from Lillian Sandle Memorandum to Lillian Sandle from Martha W eeks Memorandum to Martha W eeks, Jon Kash from Faye Sandle Complaint Memorandum to Martha W eeks from Faye Sandle Letter to W hom It May Concern from Roger M D Memorandum to Chief, Personnel Service from Rebecca W illiams Complaint to Martha W eeks from Faye Sandle Complaint letter to Fred Salas from Lillian Sandle Memorandum to Personnel Management Specialist from R. DeLuna Memorandum to Steven Oboler M D from Ricki Stephenson Letter to Lillian Sandle from Michael W inn re Light Duty Detail VA Complaint # 93-1785 (file date 12/01/89) Request for Personnel Action Memorandum to Martha W eeks from Faye Sandle Memorandum to Lillian Sandle from Martha W eeks VA assignment of investigator (Betty Ciacci) Memorandum to Registered Nursing Staff from Martha W eeks Memorandum to Lillian Sandle from Martha W eeks Complaint to Fred Salas from Lillian Sandle Memorandum to Steven Wallner M D from Lillian Sandle Letter to M ichael W inn from Roger MD

Offered

Admitted

Refused

Ruling Reserved

Comments

156 157 158 159 160 161 162 163 164 165 166 167

13
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Exhibit 168 169 170 171

Brief Description VA Proficiency Report re Lillian Sandle Memorandum to Lillian Sandle from Martha W eeks Memorandum to Selective Placement Coordinator from Claire Long Letter to Office of W orkers' Compensation Program from Claire Long Memorandum to Lillian Sandle from Stephen W allner Memorandum to Jan Kost from Faye Sandle Complaint to Professional Nurse Standard Boards from Faye Sandle Memorandum to Martha W eeks from Lillian Sandle Complaint to Fred Salas from Lillian Sandle VA Employee Education, Training, and Incentive Awards Record Memorandum to Martha W eeks from Lillian Sandle Sandle Application[s] for Promotion or Reassignment VA Complaint # 93-1821 (file date 6/08/90) Letter to Fred Salas from Lillian Sandle Continuing Education Certificate Continuing Education Certificate Application for Promotion or Reassignmen Letter to Lillian Sandle from Rebecca Newsome W illiams Application for Promotion or Reassignment, by Lillian Sandle VA Employee Health Record of Lillian Sandle, 4/01/86-11/13/90 VA Employee Supplemental Qualifications Statement VA Form SF 71: Application for Leave, completed by Lillian Sandle Lillian Sandle - Certification as Gerontological Nurse, 1/01/91 12/31/95 Memorandum to Chairperson, Nurse Professional Standards Board from Lillian Sandle submitting ANA Certification Examination, Geriatric

Offered

Admitted

Refused

Ruling Reserved

Comments

172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190

191

14

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Exhibit 192 193 194 195 196 197 198 199

Brief Description Application for Promotion or Reassignment, by Lillian Sandle Complaint to Fred Salas from Lillian Sandle Memorandum to M edical Center Director from Nursing Service Dept. of the Army Certificate of Training Letter to Lillian Sandle from Fred Salas Complaint to Cherylann DeLaurentis from Lillian Sandle US Civil Service Commission Certificate of Medical Examination Memorandum to Chairman, Physical Standards Board from Employee Health Unit Board Action Letter to Lillian Sandle from Fred Salas Complaint to Fred Salas from Lillian Sandle VAM C Form 50-B (Notification of Personnel Action) re Lillian Sandle VA decision denying Sandle's request re 6/29/91 separation Lillian Sandle request to USMSP Board VA Continuing Education Certificate VA Complaint # 93-1790 (file date 9/03/91) US Merit Systems Protection Board: Initial Decision Letter to Fred Salas from Lillian Sandle Letter to VAMC Director from James Holsinger M D Board Action recommending separation of Lillian Sandle Letter to Lillian Sandle from Fred Salas VA preliminary opinion Affidavit of Lillian Faye Lillian Sandle Application for Promotion or Reassignment, by Lillian Sandle Letter to Lillian Sandle from Neal Lawson re complaint filed 6/08/90

Offered

Admitted

Refused

Ruling Reserved

Comments

200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216

15
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Exhibit 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233

Brief Description Letter to Lillian Sandle from Neal Lawson re complaint filed 9/03/91 EEOC Appeal # 01932302: Decision EEOC Appeal # 01933595: Decision VA Complaint # 94-0858 (file date 10/05/93) Investigative Reports (93-1785, 931821 and 93-1790) by Angelo Flores VA assignment of investigator (Archie Hayes) Preliminary Affidavit of Lillian Sandle Affidavit of Lillian Sandle Investigative Report by Archie Hayes EEOC Appeal # 01850579: Granting of Request to Reopen Letter to Lillian Sandle from E. Thorsland (VAMC Director) VA Complaint # 98-2405 (file date 2/03/98) Letter to Lillian Sandle from John Sullivan Job Search 5/22/98-5/23/98, prepared by Lillian Sandle VA Complaint (file date 8/12/98) Letter to VA Deputy Assistant Secretaryrom Lillian Sandle Letter to Lillian Sandle from Charlotte Jones re complaint filed 2/02/98 Memorandum to Martha W eeks from Personnel Officer VA Proficiency Report re Lillian Sandle EEOC Appeal # 01995141: Decision Letter to Lillian Sandle from Charlotte Jones EEOC Decision (by Dickie Montemayor) EEOC Appeal # 01A13698: Dismissal of Appeal [Lillian Sandle] Appeal Brief/Statement EEOC Appeal # 01A13667: Dismissal of Appeal

Offered

Admitted

Refused

Ruling Reserved

Comments

234 235 236 237 238 239 240 241

16
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Exhibit 242 243 244 245 246 247 248

Brief Description EEOC Decision (by Dickie Montemayor) EEOC Appeal # 01A13698: Denial of Request for Reconsideration EEOC Appeal # 01A13667: Denial of Request for Reconsideration EEOC Appeal # 01A22053: Decision EEOC Appeal # 01A23722: Decision EEOC Appeal # 01A22053: Denial of Request for Reconsideration USDC-Colorado Sandle v. Principi: [Lillian Sandle] Affidavit in Support of Application for Leave to Proceed W ithout Prepayment of Fees, Costs or Security EEOC Appeal # 01A23722: Denial of Request for Reconsideration USDC-Colorado Sandle v. Principi: Plaintiffs' Responses to Defendants' First Supplemental Set of Discovery Requests USDC-Colorado Sandle v. Principi: Defendant's Response to Plaintiff's First Set of Requests for Production of Documents USDC-Colorado Sandle v. Principi: Defendant's First Supplemental Response to Plaintiff's First Set of Requests for Production of Documents USDC-Colorado Sandle v. Principi: Defendant's Second Supplemental Response to Plaintiff's First Set of Requests for Production of Documents USDC-Colorado Sandle v. Principi: Defendant's Responses to Plaintiff's First Set of Interrogatories USDC-Colorado Sandle v. Principi: Defendant's Responses to Plaintiff's First Request for Admissions USDC-Colorado, Sandle v. Principi: Notice of Deposition Pursuant to Fed.R.Civ.P. 30(b)(6) of Dept. of Veterans Affairs USDC-Colorado Sandle v. Principi: Defendants Responses to Plaintiff's Second Set of Interrogatories, Requests for Admission and Requests for Production of Documents

Offered

Admitted

Refused

Ruling Reserved

Comments

249 250

251

252

253

254

255

256

257

17

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Exhibit 258 259

Brief Description W estlaw Cite of Jennifer J. Mickelson v. New York Life Insurance Company USDC-Colorado Sandle v. Principi: Defendant's Supplemental Responses to Plaintiff's Second Set of Interrogatories USDC-Colorado Sandle v. Principi: Defendant's Responses to Plaintiff's Third Set of Interrogatories USDC-Colorado Sandle v. Principi: Defendants' Responses to Plaintiff's Fourth and Fifth Set of Interrogatories

Offered

Admitted

Refused

Ruling Reserved

Comments

260

261

(1)

Defendant: See Attachment B. b. Copies of listed exhibits must be provided to opposing counsel and any pro se

party no later than 15 days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided. The parties reserve the right to revise thier exhibit lists prior to the exhibits being exchanged. 8. DISCOVERY Discovery has been completed. 9. SPECIAL ISSUES Defendant reserves the right to seek the preservation depositions of Ray Deluna and Claire Long. If Defendant does so, Plaintiff reserves the right to depose the two individuals as well. 10. SETTLEMENT 18
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a.

Counsel for the parties met by telephone on September 21 and 22 and October 4

2006, to discuss in good faith the settlement of the case. b. c. d. e. The participants in the settlement conference included counsel. The parties were promptly informed of all offers of settlement. Counsel for the parties do intend to hold future settlement conferences. It appears from the discussion by all counsel and any pro se party that there is

some possibility of settlement. f. g. No additional settlement conference has been set. Counsel for the parties considered ADR in accordance with

D.C.COLO.LCivR.16.6.

11. OFFER OF JUDGMENT Counsel acknowledge familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case.

12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. 19
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This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. 2. 3. Trial is to the court. The estimated trial time is five days. The situs of trial is Denver, CO.

DATED this 4th day of October, 2006.

BY THE COURT:

____________________________________ United States District Court Judge APPROVED:

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Sean R. Gallagher Dugan Bliss Eric S. Howard Anne H. Turner HOGAN & HARTSON L.L.P. 1200 Seventeenth Street, Suite 1500 Denver, CO 80202 Telephone: 303.899.7300 Fax: 303.899.7333 E-mail: [email protected] [email protected] [email protected] [email protected] ATTORNEYS FOR PLAINTIFF AND COUNTERDEFENDANT

Michael C. Johnson Mark Pestal UNITED STATES ATTORNEY 'S OFFICE 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: 303.454.0134 Fax: 303.454.0408 E-mail: [email protected] [email protected]

ATTORNEYS FOR DEFENDANT AND COUNTERPLAINTIFF

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