Free Reply - District Court of Colorado - Colorado

Case 1:03-cv-02307-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:03-cv-2307-RPM STANLEY C. MOWRY, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant. DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO STRIKE MCGUIRE AFFIDAVIT Defendant United Parcel Service, Inc. ("UPS"), by and through its attorneys, hereby submits its Reply in Support of its Motion to Strike McGuire Affidavit, submitted in response to Plaintiff's Response and Supplemental Response to Motion for Summary Judgment [Docket Nos. 77 and 81].

ARGUMENT On September 18, 2006, UPS submitted its Reply to Plaintiff's Supplemental Response to Motion for Summary Judgment [Docket No. 73], in which it opposed Plaintiff Mowry's Supplemental Response to UPS' Motion for Summary Judgment [Docket No. 69] (the "Supplemental Response") and urged that the Affidavit of Joe E. McGuire (the "McGuire Affidavit") that was attached to and submitted in support of Plaintiff's Supplemental Response be disregarded and stricken. UPS' basis for its request was 1) the Affidavit fails to comport with the requirements of F.R.C.P. 56(e) as it

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includes statements that are not based on personal knowledge and offers unsupported conclusions and improper opinion or expert testimony which the affiant is not qualified to offer, all of which would be inadmissible as evidence at trial; 2) the late disclosure of the Affidavit violates F.R.C.P. 26, and prevents fair cross examination, and 3) the matters addressed in the Affidavit are irrelevant and do not create a genuine issue as to any material fact to be resolved by the Court in addressing UPS' Motion for Summary Judgment. Since the filing of UPS' Reply, Plaintiff has filed two responsive pleadings and Mr. McGuire's deposition was taken. Despite Plaintiff's claims to the contrary, testimony elicited from Mr. McGuire at his deposition confirms that the statements made in his Affidavit are not based upon personal knowledge, are hearsay, and are improper speculation or opinions. In addition, questioning by Plaintiff's attorney shows that any testimony by Mr. McGuire cannot change what Gregg Ford knew at the time he decided to terminate Plaintiff. Therefore, based upon Mr. McGuire's recent deposition testimony, there can be no doubt that his Affidavit should be disregarded and stricken. A. The McGuire Affidavit Does Not Comply With F.R.C.P 56(e) and Should be Disregarded and Stricken.

In its Reply, UPS asserted that McGuire's statements in paragraph 1 of the Affidavit that "there were many vehicles stopped at the Wagon Hound Rest Stop to wait out this storm on April 27, 2002" and the weather made "highway travel hazardous" were speculation or impermissible hearsay. In his Response to Motion to Strike McGuire Affidavit [Docket No. 77], dated October 6, 2006 ("Plaintiff's Response"), 2

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Plaintiff claims this assertion is "insincere and naïve, since common sense would indicate that vehicles pulling into a rest area during a storm are there to wait out the storm." (Plaintiff's Response at 3.) According to Mowry, McGuire's statement is "observable fact." (Id.) However, in his deposition, Mr. McGuire concedes he did not talk to any of the truckers or other drivers in the rest area that night. He also concedes that truckers use the rest area to sleep and they may have pulled over to sleep. And most important, Mr. McGuire admits he did not know why the drivers were pulled over at the rest stop, as follows: Q. Did you talk to any of the truckers personally? A. No. Q. Did you talk to any of the drivers of nontruck vehicles, the auto passengers? Did you talk to any of them personally? A. I never talked to anybody. Q. So you don't know why they were stopping; isn't -- isn't that fair to say? A. I would suppose. McGuire Dep. 22:4-13 at Exhibit A hereto. *** Q. You testified that you had no doubt in your mind that the -- the individuals who were at the rest area in their cars and in their trucks were there because of the storm. And yet you testified earlier that you didn't speak to any of them; isn't that correct? A. That's correct. Q. Now, isn't it true that truckers often use rest areas to sleep? 3

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A. True. Q. Do you have any idea whether the truckers that were there that night might have just been sleeping? A. Could have. McGuire Dep. 37:17-38:5. Therefore, Mr. McGuire's claim that the vehicles, including truckers, were there to "wait out the storm" is nothing more than mere surmise on his part. He has no personal knowledge as to why any of the cars and trucks may have been stopped at the rest area. Accordingly, his statement does not comply with F.R.C.P. 56(e); it is inadmissible under Fed. R. Evid. 602 and should be stricken. Mr. McGuire's claim that the weather made "highway travel hazardous" is similarly flawed. In his deposition, he admits he was not driving on I-80 on the evening of April 26 or the early morning hours of April 27 and he has no personal knowledge of the road conditions on I-80. Q. Do you know -- could you see the highway from where you were located? A. That night? Q. I-80. Could you see it? A. That night? Q. Uh-huh. A. Not with the storm, you can't. Q. Did you have any idea, based on personal experience, access to the highway, what the road conditions on I-80 were that night? A. Probably very slick. 4

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Q. No. That wasn't my question. My question was, did you -- do you have any factual knowledge ­ A. Was I out there driving? Is that what you -Q. Were you on the highway at all that night? A. No, I was not. McGuire Dep. 20:16-21:7. Based upon this testimony, Mr. McGuire lacks personal knowledge regarding road or travel conditions on I-80 that evening and has insufficient information on which to base a perception as to what the conditions were on the highway and whether they were hazardous. At best, his statement that highway travel was hazardous is mere speculation, and is, therefore, inadmissible under Fed. R. Evid. 602. In paragraphs 2 and 3, Mr. McGuire attests to weather conditions and cell phone coverage generally along I-80 in Wyoming and, in particular, in the area of the Wagon Hound Rest Area. Plaintiff contends that this testimony should survive because it is based on years of driving I-80 and his two visits to the Rest Area. (Plaintiff's Response at 4.) However, during his deposition, Mr. McGuire admits he does not have years of experience driving I-80, in particular, in the area around the Wagon Hound Rest Area. He concedes he has only driven the portion of I-80 around the Rest Area a couple of times, in addition to the two visits to the rest area to visit his mom. Q. Right. Now, how often do you drive I-80? A. Anymore, I don't. Q. Since you obtained your driver's license, how often have you driven I-80? A. I -- I worked construction over here a couple times for a few months at a 5

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time, so maybe -- I don't know. Six, eight months. Q. And during those six and eight months, how often were you actually on I-80? A. I rebuilt the road from Rawlins 30 miles past Rawlins. Q. So from Rawlins west, 30 miles west? A. Yeah. Q. And how often have you driven in the vicinity of the Wagonhound restaurant -- rest area? A. Just the few times that I went and seen my mom. Q. So the two times you went to see your mom? A. Yes. Oh, I can't even say that. I guess I passed by it a few times traveling to Cheyenne when I stayed up -- when I was working in Rawlins. Q. So just several? A. A few. Not very many. McGuire Dep. 26:19-27:16. *** Q. Do you have a cell phone? A. Yes. Q. How long have you had that cell phone? A. Since I was 18. Q. So then your experience with the cell phone in the area of the Wagonhound rest area it's fair to say is limited to the occasions where you -A. Can get out. Q. -- have either driven in that area or visited your mom? A. I get better -- at that point, I got better reception than most, and it was still 6

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hard for me to even get out. Q. No. My question was the scope of your experience with your cell phone in the area of the Wagonhound restaurant -- rest -- rest area. And you stated that you had been to the rest area on two occasions? A. Right. Q. And you had maybe driven in that area a couple more times? A. Right. Q. So that's the scope of your experience using a cell phone? A. In that area. Q. Assuming that you used it during the time that you were passing that area; correct? A. Correct. McGuire Dep. 27:17-28:19. Consequently, Mr. McGuire lacks sufficient experience to be qualified to testify as a fact or opinion witness as to the weather conditions or cell phone coverage generally along I-80 and, in particular, in the vicinity of the Rest Area. His testimony is not "based on a solid foundation of years of experience" as Mowry inaccurately suggests. (Plaintiff's Response at 4.) Mr. McGuire's statement cannot be factually supported by his limited experience and his statement is improper lay opinion testimony because it does not meet the requirements of either Rule 701 or 702. It is, therefore, inadmissible. In paragraph 3 of his Affidavit, Mr. McGuire also states that "the phone at the rest stop often did not work, especially in bad weather." In his deposition, Mr. McGuire concedes that he did not use the phone in the Rest Area and did not personally know if 7

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the phone at the Rest Area worked or not. He admitted that any information he had regarding whether the phone worked came from his mother. Q. And did you personally go in and try to use the phone that was in the -A. No, ma'am. Q. -- rest area? A. No. McGuire Dep. 29:9-13. *** Q. (BY MS. DeCOOK) Now, you've put in this affidavit that you recall that the phone at the Wagonhound rest stop often did not work. That's not based on your own personal experience with that phone; is that correct? A. No. I have a cell phone. Q. No. I'm talking about the phone at the rest stop. A. Correct. I've never used it. Q. So -- so you can't state based on personal experience whether -A. No. Q. -- it works or not? McGuire Dep. 33:19-34:6. *** Q. Now, as far as the phone at that rest area is concerned, how is it that you know that it was not -- as -- as you put it, it did not -A. Work. 8

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Q. -- work? MS. DeCOOK: Objection; hearsay. A. Main reason is just because my mom had came back in, told me that the phone didn't work, and then we tried getting out on ours to let people use our phone instead, but it didn't work, either. McGuire Dep. 36:21-37:6. As this testimony reveals, Mr. McGuire lacks personal knowledge to testify whether the phone at the rest area was in working order that night. Any knowledge he has on the subject comes from out-of-court statements made by his mother. Therefore, the statement in his Affidavit is impermissible hearsay, which is inadmissible under Fed. R. Evid. 602 and 801. In paragraph 4, Mr. McGuire proffers his opinion that it would have been prudent for a UPS driver pulling two empties to pull over at the rest stop on April 27, 2002. In his responsive filings, Plaintiff claims that this opinion by Mr. McGuire is based upon years of driving I-80 and "witnessing storms and accidents related to storms." (Plaintiff's Response at 4.) As established infra, Mr. McGuire's deposition testimony demonstrates that he lacks personal knowledge regarding the impact of the weather on the road conditions on I-80 on the evening in question. He is not qualified to testify as a fact or opinion witness as to the weather, its impact on road conditions, and whether the roads were impassable or hazardous for an experienced long-haul truck driver, in particular a UPS driver. When Mr. McGuire was pressed during his deposition to clarify his truck driving 9

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experience, he admits that he has no experience as an over-the-road tractor trailer truck driver, he has no experience driving tractor trailers on I-80, and he has no training on driving tractor trailers on major interstates in adverse driving conditions. His only training for driving in adverse weather conditions was for driving snow plows. Further, he acknowledges he has no knowledge as to how UPS trains its drivers, what those drivers are advised to do in adverse weather conditions, or the training UPS drivers receive regarding driving in adverse weather conditions.

*** Q. And the -- the 30 miles that you drove or the -- the times when you drove a tractor-trailer truck, did you ever drive it on I-80? A. No. McGuire Dep. 15:1-4. *** Q. All right. And you testified that you have truck driving experience; correct? A. Yes. Q. And you have driven tractor-trailers? A. Yes. Q. Not doubles? A. Never. Q. And is there a difference between driving doubles than singles? A. Yeah. Q. Is there a difference between driving empty doubles and singles, empty 10

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singles? A. Yeah. Q. Now, what's the longest distance that you have driven a tractor-trailer truck? A. Most of mine is probably under 30 miles. I don't ever over -- do over the road. Q. And so do you have any long-haul experience? A. No. Q. And the -- the 30 miles that you drove or the -- the times when you drove a tractor-trailer truck, did you ever drive it on I-80? A. No. McGuire Dep. 14:7-15:4. *** Q. Now, do you have any knowledge about how UPS trains its drivers? A. No. Q. Do you know what their drivers are advised to do in the event of adverse weather conditions? A. No. Q. Do you know what kind of training they get to drive in adverse weather conditions? A. Nope. McGuire Dep. 30:16-24. *** Q. Do you have any training yourself about driving on major interstates in adverse driving conditions? 11

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A. All my experience is classes that I took with DOT. Q. And what kind of training did you get in that circumstance? A. I had to take -- I don't remember all of them, but I do know we had to take a snowplowing course. Q. Did you actually do practical driving of tractor-trailers on I-80 -A. Huh-uh. Q. -- as part of that training? A. Huh-uh. We don't -- we don't drive tractor-trailers with DOT. Well, for the most part we don't. Q. Okay. So -- so the extent of the training you got for adverse weather conditions was driving snowplows? A. Correct. McGuire Dep. 30:25-31:20. Simply stated, Mr. McGuire lacks both personal knowledge to support his statement and insufficient experience to render a lay opinion regarding the prudent course of action for a UPS driver on the morning of April 27, 2002. In sum, Mr. McGuire lacks the personal knowledge to support the statements made in his Affidavit. His statements are based upon speculation, hearsay or are improper lay opinion testimony on matters which he could not have a rational perception. In addition, Mr. McGuire lacks sufficient personal experience to form the basis for the opinions he has offered and he is not qualified as an expert. His statements are inadmissible under Rules 602, 701, 702 and 801. His Affidavit should be stricken for failing to comply with F.R.C.P. 56(e). 12

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B.

The McGuire Affidavit Is Irrelevant and Creates No Fact Issue On What Mr. Ford Knew When He Decided to Terminate Plaintiff.

In its Reply, UPS asserted that Mr. McGuire's Affidavit is irrelevant because it sheds no light on Plaintiff's retaliation claim. In his Response, Plaintiff contends that the Affidavit is relevant because it presents Mr. McGuire's observations regarding the weather conditions and states, without explanation, that this information is relevant. (Plaintiff's Response at 5 and 6.) To the contrary, even if the Affidavit actually presented Mr. McGuire's observations regarding the weather conditions, which it does not, that testimony creates no issue of fact regarding Mr. Ford's knowledge at the time of the termination and whether Mr. Ford acted in retaliation for Mowry asserting his contractual and statutory right to stop driving due to hazardous weather conditions on the night of April. Plaintiff has failed to present, through the Affidavit or otherwise, any evidence that Mr. Ford, at the time he decided to terminate Mowry ­ had knowledge that Mowry had pulled over for safety-related reasons. It is undisputed that he did not have such knowledge. And, there is no dispute that Ford honestly believed that Mowry was dishonest and stole time from the Company, and fired him for that belief. The Affidavit does not confront this issue and certainly creates no factual dispute as to this undisputed evidence. WHEREFORE, Defendant UPS respectfully requests that this Court grant its request that the McGuire Affidavit be stricken. Dated this 3rd day of November, 2006.

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Respectfully submitted, s/ Rebecca B. DeCook Judith A. Biggs HOLLAND & HART LLP One Boulder Plaza 1800 Broadway, Suite 300 Boulder, CO 80302 Telephone: 303-473-2707 Fax: 303-473-2720 Email: [email protected] Rebecca B. DeCook HOLLAND & HART LLP 8390 E. Crescent Parkway Greenwood Village, CO 80111 Telephone: 303-290-1085 Fax: 303-290-1606 E-mail: [email protected] ATTORNEYS FOR DEFENDANT UNITED PARCEL SERVICE, INC.

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CERTIFICATE OF SERVICE

I hereby certify that on November 3, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected]

s/Karen Kinnear

3626663_2.DOC

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