Free Motion to Alter Judgment - District Court of Colorado - Colorado

Case 1:03-cv-02307-RPM

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Filed 03/15/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03cv02307-RPM STANLEY C. MOWRY, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.

PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT AND ORDER GRANTING SUMMARY JUDGMENT

COMES NOW Plaintiff Stanley C. Mowry ("Mowry"), by and through his counsel of record, Stefan Kazmierski of Roseman & Kazmierski, L.L.C., and pursuant to F.R.C.P. 52(b) and 59(e), moves this Court to amend or alter its Judgment, as well as its findings as set out in its Memorandum Opinion and Order Granting Summary Judgment. As grounds, plaintiff states: In its March 5, 2007 Memorandum Opinion, this Court has accepted as true, "Mowry's description of the road conditions and his decision that the driving conditions were too dangerous for continued operation." Memorandum Opinion at 3. This Court nevertheless found that "there is no evidence to support a finding that at the time of his decision to terminate Mowry's employment Ford knew or should have known that the road conditions Mowry was experiencing were such that he was required to stop and wait for almost three hours before continuing the trip." Memorandum Opinion, pg. 4. Therefore, this Court granted summary judgment to UPS. The facts admitted by UPS are that Mowry was pulling two tandem empty trailers and that he pulled into the Wagon Hound rest stop after encountering a jack knifed tractor-trailer

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truck. Two managers were following Mowry and they witnessed him pulling off the highway. Therefore, the UPS managers also knew of "Mowry's description of the road conditions," namely, that "the driving conditions were too dangerous for continued operation" with two empty trailers. Mowry returned to the UPS yard early Saturday morning, when no dispatch was on duty, cleaned his truck and went home. When he returned to work Monday morning, he was immediately called into Ford's office and summarily terminated. It is not disputed that the decision to fire Mowry was made before Mowry even knew he was being considered for discharge, and that Mowry was fired without being afforded an opportunity to explain his actions. Rather than protest his termination in the office of Mr. Ford, Mowry immediately proceeded to his union office and filed a grievance. That grievance reads, "Had experienced fog ice snow Friday night shut down to wait out storm." Mowry formally put UPS on notice that he pulled off the highway due to hazardous weather conditions immediately after recovering from the shock of being summarily fired. Ironically, UPS uses the fact that it never afforded Mowry an opportunity to explain his actions before his termination to say it could not have known of his reasons for pulling off the road, so it could not have retaliated against Mowry for exercising an important right. This, in spite of the hazardous road conditions that this Court has accepted as true, and in spite of the fact that management was following him when he pulled over, and in spite of the fact that those managers admit that they encountered a jack-knifed tractor-trailer just outside Wagon Hound rest stop. Indeed, as pointed out in the numerous pleadings already filed with this Court, UPS never investigated the reasons why the tractor-trailer was jack-knifed on the highway even after it was on notice of the reasons that Mowry claimed to pull off the highway. Blake Deposition, Exhibit 6, pgs. 35;21 to 37;25; Durante Deposition, Exhibit 5, pgs. 40;23 to 41;11. Ford also admits he 2

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never investigated the reasons for the jackknifed tractor-trailer and he even testified that, "I don't recall why it would be important." Ford Deposition, Exhibit 3, pg. 53;15-25. On the one hand, this Court's ruling requires Mowry to somehow know in advance that UPS was contemplating firing him, so that he was obligated to place UPS on notice that he was exercising an important statutory right even before he knew his conduct was in question. On the other hand, this Court excuses UPS for failing to know why Mowry acted in the manner he did, even though the Court accepts as true that road conditions caused him to pull over, and even though Mowry was being followed by UPS management, and even though UPS never investigated the reasons claimed by Mowry once it was formally placed on notice of his claims. This result is manifestly unjust. Since Mowry could not have put UPS on notice of the reason why he pulled off the highway before he was terminated, one is caused to question when Mowry should have put UPS on notice that he pulled off the road for weather conditions so that he could claim the protections of a public policy discharge claim. Should Mowry have argued with Ford in his office immediately after he was told he was fired? Is it permissible to avoid a confrontation and instead immediately file a grievance protesting a termination for exercising an important statutory right? In this case, Mowry chose not to argue with Ford, but to avoid a direct confrontation and immediately file a grievance. His conduct was appropriate under the circumstances. Not allowing an explanation before termination is not appropriate conduct. It is clear that UPS determined to summarily fire Mowry without giving him an opportunity to provide an explanation for his actions and that UPS intended to fire Mowry despite his having exercised his right to pull off the road in hazardous weather conditions. The evidence indicates that UPS knew the reasons why Mowry pulled off the highway and it 3

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determined not to even allow him to voice an objection, in the hopes that it could avoid any argument that it retaliated against Mowry for exercising his statutory rights. This Court's ruling would encourage employers to summarily discharge employees without allowing any explanation for behavior -- for to allow explanation would place the employer on notice of potential public policy reasons for the employee's behavior. In Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 109 (Colo. 1993), the Colorado Supreme Court held that the final element to the claim for public policy discharge is "evidence showing that the employer was aware, or reasonably should have been aware," that the employee's action was based on the employee's reasonable belief that the action was "violative of the employee's legal right or privilege as a worker." [emphasis added]. Here, this Court has accepted as true, "Mowry's description of the road conditions and his decision that the driving conditions were too dangerous for continued operation." Memorandum Opinion at 3. Because Mowry was being followed by two UPS managers who witnessed these road conditions, and the jack-knifed tractor trailer in those road conditions, UPS cannot now argue that it did not know that Mowry pulled over because of road conditions. Clearly, the knowledge of the managers is the knowledge of UPS and Ford for purposes of determining whether UPS had knowledge of the road conditions before Mowry was terminated. After all, Mowry has alleged in this suit that UPS, not Ford alone, discharged him for illegal reasons. Even if Ford's subjective intent, or the intent of the other managers who witnessed Mowry pull off the road were at issue here, questions of intent are more properly matters of consideration after a full trial and are not for resolution by summary judgment. Prochaska v, Marcoux, 632 F.2d 848 (10th Cir. 1980), cert. denied, 451 U.S. 984, 101 S.Ct 2316, 68 L.Ed.2d. 841 (1981). Intent is a factual determination, particularly within the province of the trier of fact. Dow Chemical Co. v. Eby 4

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Mine Serv., 813 F.Supp 739, 753 (D.Colo. 1993). UPS even failed to investigate Mowry's allegations that he pulled off the road for public policy reasons after it was on formal notice of that fact (through the written grievance that Mowry filed the same day he was fired). UPS ratified Ford and the other manager's decision to terminate Mowry for exercising a protected statutory right despite knowledge of the road conditions that caused him to cease operation of this truck and two empty trailers. "What act constitutes ratification or disaffirmance is ordinarily a question of law to be determined by the trial court. Sullivan v. Bennett, 261 Mich. 232, 246 N.W. 90 (1933). We agree that what constitutes a reasonable time for affirmance or disaffirmance is ordinarily a question of fact to be determined by the facts in a particular case." Jones v Dressel, 623 P.2d 370, 373 (10th Cir. 1981). Here, even if this Court were to excuse UPS for not knowing that "Mowry determined the driving conditions were too dangerous for continued operation" when it fired Mowry, UPS was put on notice the same day he was fired that he was exercising a protected statutory right. UPS ratified the decision to terminate Mowry in retaliation for exercising a protected statutory right. It must also be noted here that the truck being driven by Mowry had an IVIS system, which is an on-board computer that records truck status. This Court acknowledged at page 4 of its Memorandum Opinion that Ford reviewed that IVIS log before he terminated Mowry. It was noted at the union panel hearing, that the IVIS system was new and that it had no entry codes for impassable road or hazardous weather conditions. The log shows that Mowry did enter that there was a "breakdown on road," shown as "BOR1" or "BOR2", immediately when he pulled into the Wagon Hound rest stop. Again, Mowry was never given an opportunity to explain why he pulled off the highway before he was fired, and Ford never questioned Mowry about that entry until the union hearing. See, Reporter's Transcript, pages 4, 8, 12, 14, 17-18, 20, 22-24, 32-35, 56, 5

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attached as Exhibit D to UPS' Motion to Dismiss All Claims, filed December 17, 2003. Further, Mowry testified that he entered "snow, ice and fog at the mile marker" after he pulled into the Wagon Hound rest area, but that his entry was changed or not recorded as such in the new system. Reporter's Transcript, page 33. At the least, UPS had notice that Mowry pulled off the road for some reason, and Mowry never hid the fact that he pulled off the road, but UPS never sought an explanation for his behavior prior to firing him. This Court's finding that UPS did not have notice that Mowry pulled off the road because of road conditions is erroneous. WHEREFORE Mowry respectfully requests that this Court amend or alter its Judgment, and findings as set out in its Memorandum Opinion and Order Granting Summary Judgment, to indicate that UPS was aware, or reasonably should have been aware, that Mowry pulled off the road for weather conditions, and order that this case proceed to trial by jury. Dated this 15th day of March 2007. ROSEMAN & KAZMIERSKI, L.L.C. s/Stefan Kazmierski Stefan Kazmierski 1120 Lincoln St., Ste. 1607 Denver, CO 80203-3154 (303) 839-1771 Fax (303) 861-9214

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Certificate of Service I hereby certify that a true and correct copy of the foregoing PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT AND ORDER GRANTING SUMMARY JUDGMENT was filed electronically and emailed, this 15th day of March 2007 to: Jude A. Biggs Holland & Hart, LLP 555 17th St., Ste. 3200 Denver, CO 80202-3921 [email protected] s/Stefan Kazmierski

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