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. 04-D-0077(PAC) JENNIFER L. GIFFORD, Plaintiff, v. FARMERS GROUP, INC., FARMERS INSURANCE EXCHANGE, TRUCK INSURANCE EXCHANGE, FIRE INSURANCE EXCHANGE, MID-CENTURY INSURANCE COMPANY, and FARMERS NEW WORLD LIFE INSURANCE COMPANY, d/b/a FARMERS INSURANCE GROUP OF COMPANIES, Defendants. PRETRIAL ORDER I. DATE AND APPEARANCES The Pretrial Conference was held on July 18, 2005 at 8:30 a.m. Plaintiff Jennifer L. Gifford was represented by Ronald E. Gregson of Ronald E. Gregson, P.C. Defendants Farmers Group, Inc., et. al. were represented LLP. II. JURISDICTION Jurisdiction of this court is invoked pursuant Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, et. seq. Defendants object to this Court's exercise of jurisdiction and contend that Plaintiff is not within the class of individuals covered by 42 U.S.C. § 2000e et seq. by Brett C. Painter of Davis, Graham & Stubbs

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III. CLAIMS AND DEFENSES A. Plaintiffs' Claims: Plaintiff worked as an insurance agent for Defendants for over three years. During this time, Defendants and their agents engaged in a pattern of illegal discrimination against female employees. From the time that Plaintiff began working under her District Manager, Dave Williams, she was treated differently than her male counterparts. Beginning in late 1999, Plaintiff's co-worker, Steve Stines, began to sexually harass her. Stines repeatedly made sexual

comments about Plaintiff's appearance, remarked about Plaintiff's genitals and, during a business meeting with Plaintiff and other co-workers, shook the table simulating the noise that a squeaky bed would make during intercourse. Plaintiff made multiple complaints to Williams about Stines' sexual harassment of her, however

Williams took no action to correct the problem. Plaintiff then complained to Sue Swanson, Defendants' Mile High Division Market Manager, about Williams' discrimination and Stines' harassment. On or around April 16, 2002, Plaintiff received written notice from Swanson regarding her purported investigation of Plaintiff's complaints of harassment and discrimination. Swanson concluded that Stines was unaware that his comments and behavior were unwelcome, Plaintiff's dress was "unacceptable and subject to reprimand," Williams showed no favoritism toward male employees and then

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threatened Plaintiff with a thirty-day termination notice. On or around October 2, 2002, Defendants' sent Plaintiff a notice of termination and on January 23, 2003, Plaintiff's employment was terminated. Plaintiff claims that she was discriminated against on the basis of sex and retaliated against due to her opposition to Defendants' discriminatory conduct, in violation of Title VII of the Civil Rights Act of 1964. Plaintiff has confessed judgment on her claims of breach of contract and promissory estoppel. B. Defendant's Defenses: Defendants deny that Plaintiff is entitled to seek relief under Title VII. At all times, Plaintiff was an independent Even if the Court determines that Moreover,

contractor and not an employee.

Plaintiff was an employee, her claims are time-barred.

Plaintiff cannot establish the elements necessary to support her Title VII claims. Defendants deny that they engaged in any form of

discrimination or retaliation against Plaintiff and further deny that they engaged in any illegal conduct whatsoever. In addition, Defendants assert the following defenses: lack of jurisdiction; failure to state a claim; effective anti-

discrimination and anti-retaliation policies; legitimate business reasons; prompt remedial action; preemption; waiver, estoppel, laches, or release; bad faith; failure to mitigate; damages subject to statutory limitations; failure to exhaust remedies; failure to

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raise claims in the charge of discrimination; and failure to provide notice. IV. STIPULATIONS a. The parties agree that venue is proper in the United

States District Court for the District of Colorado. b. Plaintiff filed her charge of Discrimination with the

Equal Employment Opportunity Commission on April 17, 2003. b. Plaintiff was a Reserve Agent from approximately June

1999 to approximately November 1999. c. d. Jay Eidel and David Williams were District Managers. Plaintiff brought to Dave Williams' attention allegations

concerning Steve Stines. e. Plaintiff provided a letter dated December 12, 2001 to

Dave Williams and Sue Swanson. V. PENDING MOTIONS Defendants' motion for summary judgment currently is pending. The parties anticipate filing motions in limine and other pretrial motions. VI. WITNESSES Plaintiff's Non-expert Witnesses (1) witnesses who will be present at trial: 1. Jennifer L. Gifford P.O. Box 27904 Denver, CO 80227 (303)521-5695

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Ms. Gifford will testify to all facts underlying her claims against defendants. 2. Jim Gifford (303) 995-2444 Mr. Gifford is Plaintiff's father and will testify to the effect of Defendants' discrimination on Plaintiff. to testify in person. 3. David H. Williams 5601 S. Broadway, Ste. 355 Littleton, CO 80121 (303) 734-9958 He is expected She is expected to testify in person.

Mr. Williams was Plaintiff's immediate supervisor and will testify regarding his relationships with Plaintiff and other

agents in the District Office; plaintiff's complaints of sexual harassment and unequal treatment; his treatment of male agents versus female agents. Mr. Williams will be called as an adverse

witness; he is expected to testify in person. 4. Steven Stines 6425 Wadsworth Blvd., Ste 207 Arvada, CO 80003 (303) 431-2300

Mr. Stines is a former co-worker of Plaintiff and will testify regarding his relationships with Plaintiff and other agents in the District Office; plaintiff's complaints of sexual harassment and unequal treatment; the treatment of male agents versus female agents in Dave Williams' office. Mr. Stines will be called as an

adverse witness; he is expected to testify in person.

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5.

Sue Swanson Mile High Division Marketing Manager Farmers Insurance Group of Companies 7535 E. Hampden Ave., Suite 300 Denver, CO 80231

Ms. Swanson will testify regarding Plaintiff's complaints of hostile work environment, sexual harassment and unfair treatment, and Defendants' response to those complaints. Ms. Swanson will be

called as an adverse witness; she is expected to testify in person. (2) witnesses who may be present at trial: 1. Greg Truitt 3300 S. Parker Rd., Suite 500 Denver, CO 80202

Mr. Truitt is Plaintiff's former accountant and may testify regarding Plaintiff's status as an employee. He is expected to testify in person. 2. Lloyd Edraney 1780 S. Bellaire St, Suite 535 Denver, CO 80222 (303) 758-7628

Mr. Edraney is Plaintiff's former accountant and may testify regarding Plaintiff's status as an employee. testify in person. 3. Dr. Brian Brody Ascend Coaching P.O. Box 620430 Littleton, Colorado 80162 303-979-0319 Brody may testify regarding his interactions with He is expected to

Dr.

Plaintiff and Plaintiff's statements regarding her experiences with Defendants. He is expected to testify in person. 6

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4. 5. records. 6.

Any individual necessary for rebuttal or impeachment. Any individual necessary to authenticate documents or

Any witnesses endorsed by Defendants or identified by

Defendants in their disclosures and discovery responses. Defendant's Non-expert Witnesses: (1) 1. witnesses who will be present at trial: Jennifer Gifford 2587 S. Harlan Court Lakewood, CO 80227 will testify concerning her contracts with

Plaintiff

Defendants; her acts, omissions, statements, and demeanor; her relationships and interactions with others; Gifford Insurance

Agency, Inc. and its relationship with Defendants; and all matters alleged in Plaintiff's First Amended Complaint and Jury Demand (the "Complaint"). 2. She is expected to testify in person.

Sue Swanson P.O. Box 371078 Denver, CO 80231 (303) 238-6108

Ms. Swanson will testify concerning Plaintiff's complaints, Defendants' investigation of those complaints, and the results of that investigation; Plaintiff's status and performance as an

independent contractor; and other matters alleged in the Complaint. She is expected to testify in person.

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3.

David H. Williams 5601 S. Broadway, Ste. 355 Littleton, CO 80121 (303) 734-9958

Mr. Williams will testify concerning his relationships with the agents in the District Office; Plaintiff's acts, omissions, statements, and demeanor; her relationships and interactions with others; Plaintiff's status and performance as an independent He is

contractor; and other matters alleged in the Complaint. expected to testify in person. 4. Steven Stines 6425 Wadsworth Blvd., Ste 207 Arvada, CO 80003 (303) 431-2300 Stines will testify and concerning her Plaintiff's interactions

Mr. omissions,

acts, and

statements,

demeanor;

relationships with others; David Williams' treatment of agents; and other matters alleged in the Complaint. in person. Veda Brown 2030 Youngfield St. Lakewood, CO 80215 (303) 233-2332 Ms. Brown will testify concerning Plaintiff's acts, omissions, statements, and demeanor; Plaintiff's interactions and 5. He is expected to testify

relationships with others; David Williams' treatment of her and of agents; and other matters alleged in the Complaint. expected to testify in person. She is

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6.

Debbie Hughes 5601 S. Broadway, Ste 355 Littleton, CO 80121 (303) 734-9958 Hughes will testify concerning Plaintiff's acts,

Ms.

omissions, statements, and demeanor; Plaintiff's interactions and relationships with others; David Williams' treatment of her and of agents; and other matters alleged in the Complaint. expected to testify in person. 7. Jim Smith 5601 S. Broadway, Ste 355 Littleton, CO 80121 (303) 734-9958 She is

Mr. Smith will testify concerning Plaintiff's acts, omissions, statements, and demeanor; Plaintiff's interactions and

relationships with others; David Williams' treatment of agents; and other matters alleged in the Complaint. in person. 8. Lloyd S. Edraney Certified Public Accountant 1780 S. Bellaire Street, Suite 535 Denver, CO 80222 (303) 758-7628 He is expected to testify

Mr. Edraney will testify concerning Plaintiff's relationship with Defendants, Plaintiff's tax and accounting records, and other matters alleged in the Complaint. person. He is expected to testify in

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9.

Susan Nairn 1776 South Jackson Street Suite 320 Denver, CO 80210 (303)691-0091

Ms. Nairn will testify concerning Plaintiff's relationship with Defendants; her relationship with Defendants; Mr. Williams' treatment of agents; Plaintiff's acts, omissions, and statements; and other matters alleged in the Complaint. testify in person. (2) witnesses who may be present at trial: 1. Art Blaszczyszyn 5601 S. Broadway, Ste. 349 Littleton, CO 80121 (303) 798-0822 She is expected to

Mr. Blaszczyszyn may testify concerning Plaintiff's acts, omissions, statements, and demeanor; Plaintiff's interactions and relationships with others; David Williams' treatment of agents; and other matters alleged in the Complaint. in person. 2. Karen O'Bryan 3500 N. Nevada Ave. Colorado Springs, CO 80907 (719) 630-2000 He is expected to testify

Ms. O'Bryan may testify concerning Plaintiff's performance as an insurance agent; Defendants' efforts to improve Plaintiff's performance; and other matters alleged in the Complaint. expected to testify in person. She is

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3.

Judy Park 3500 N. Nevada Ave. Colorado Springs, CO 80907 (719) 630-2000

Ms. Park may testify concerning Plaintiff's performance as an insurance agent; Defendants' efforts to improve Plaintiff's She is

performance; and other matters alleged in the Complaint. expected to testify in person. 4. Robert Clark address unknown telephone number unknown

Mr. Clark may testify concerning the office environment under David Williams' supervision and other matters alleged in the Complaint. 5. He is expected to testify in person. Richard Amador address unknown telephone number unknown

Mr. Amador may testify concerning the office environment under David Williams' supervision and other matters alleged in the Complaint. 6. He is expected to testify in person. Bernie Schulz 4680 Wilshire Blvd. Los Angeles, CA 90051 (323) 930-4288

Mr. Schulz may testify concerning Defendants' relationships with their agents and other matters alleged in the Complaint. is expected to testify in person. He

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7.

Jeff Burnside Farmers Insurance 7535 East Hampden Avenue, Suite 310 Denver, CO 80231 (303) 283-6130

Mr. Burnside may testify concerning Plaintiff's relationship with Defendants, the termination of Plaintiff's relationship with Defendants, and other matters alleged in the Complaint. expected to testify in person. 8. Gary Carter Gary Carter Insurance Agency 6901 S. Pierce Street, Suite 233 Littleton, CO 80128 (720) 962-8700 He is

Mr. Carter may testify concerning Plaintiff's relationship with Defendants; Plaintiff's work performance; Plaintiff's acts, statements, and conduct; Plaintiff's relationship with Carter He

Insurance Agency; and other matters alleged in the Complaint. is expected to testify in person. 9. Lana Davis 2030 Youngfield Lakewood, CO 80215 (303) 233-2332

Ms. Davis may testify concerning Plaintiff's relationship with Defendants; her conversations with Plaintiff; Plaintiff's acts, omissions, Complaint. and statements; and other matters alleged in the

She is expected to testify in person.

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10.

Anne Fischer 5601 S. Broadway, Suite 355 Littleton, CO 80121 (303)730-3715

Ms. Fischer may testify concerning Plaintiff's relationship with Defendants; Plaintiff's acts, omissions, and statements; and other matters alleged in the Complaint. She is expected to testify in person. 11. Terry Rogers Farmers Insurance 7535 East Hampden Avenue, Suite 300 Denver, CO 80231 (303) 283-6116

Mr. Rogers may testify concerning Plaintiff's relationship with Defendants; Plaintiff's acts, omissions, and statements; and other matters alleged in the Complaint. in person. 12. Andy Roy 6425 Wadsworth Boulevard, Suite 205 Arvada, CO 80003 (303)421-5123 He is expected to testify

Mr. Roy may testify concerning Plaintiff's relationship with Defendants; Plaintiff's acts, omissions, and statements; and other matters alleged in the Complaint. person. He is expected to testify in

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13.

Summer R. Meredith Human Resources/Administration Foothills Park and Recreation District 6612 S. Ward Street Littleton, CO 80127 (303)409-2100

Ms. Meredith may testify concerning Plaintiff's employment with Foothills Park and Recreation District and Plaintiff's acts, omissions, and statements. 14. She is expected to testify in person.

Dr. Brian Brody Ascend Coaching P.O. Box 620430 Littleton, Colorado 80162 303-979-0319 Brody may testify concerning his interactions with

Dr.

Plaintiff; Plaintiff's statements, acts and omissions; and other matters alleged in the Complaint. person. 15. 16. records. 17. Any witnesses endorsed by Plaintiff or identified by Any individual necessary for rebuttal or impeachment. Any individual necessary to authenticate documents or He is expected to testify in

Plaintiff in her disclosures and discovery responses. 18. 19. 20. Any custodian for Plaintiff's medical records. Any custodian for Plaintiff's employment records. Any custodian for Plaintiff's tax records.

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VII. EXHIBITS a. 1. 2. Plaintiff's Exhibits: Reserve Agent Appointment Agreement, 5/24/99 Farmers Insurance Group of Companies Agent Appointment

Agreement, 11/4/99 3. Chronological Order of Events for Gifford Insurance

Agency 04-07-23-344 4. 5. Breaking News Bulletin, 1/7/02 DM Recommendation, Applicant Name: Jennifer Gifford,

District Manager's Name: Jay Eidel, 5/24/99 6. Memorandum to Jennifer Gifford from Sue Swanson, Colorado

State Office, re: Advance Stop Notification, 5/22/01 7. Letter to Dave from Jennifer Gifford re: Rent Billing w/

hand-written notes; letter to Dave Williams from Jennifer Gifford re: Sexual Harassment (w/ cc to Jeri S. Williams), 6/4/01 8. Jennifer Gifford's handwritten notes, "Specific

Incidents/Dates/Locations", 1/4/02 9. Memorandum to: Rion Groves from: Bernie Schulz re:

Termination of Agent - Jennifer Gifford, 11/28/01 10. Letter to Jennifer Gifford from Dave Williams w/ cc to

Sue Swanson, 3/20/02 11. forwarding Fax cover sheet to Sue Swanson from Jennifer Gifford letter to Dave Williams, with letter to Williams

attached, 12/12/01

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12.

Letter to Dave Williams from Jennifer Gifford w/ cc to

Sue Swanson re: Revised Workers Compensation Manual Pages and Rates, 12/28/01 13. Letter to Sue Swanson from Jennifer Gifford re; Dave

Williams, 1/1/02 14. Letter "To Whom It May Concern" from Steven A. Stines re:

Allegations brought by Jennifer Gifford, ½4/02 15. Letter from Dave Williams to Sue Swanson re: response to

questions during investigation, 1/31/02 16. Letter to Sue Swanson from Jennifer Gifford re:

Commercial Meeting with Team Leaders Karen O'Bryan & Judi Park, ½9/02 17. Letter to Sue Swanson from Jennifer Gifford re: Upscale

Resale/Dave Williams, 2/13/02 18. Letter to Dave Williams from Jennifer Gifford re: Lease

Expiration with Contract Requirements on Lease and Series 6, 4/4/02 19. Letter to Jennifer Gifford from Dave Williams w/ cc to

Sue Swanson re: not extending deadline, 4/10/02 20. Letter to David Williams from Jennifer Gifford w/ cc to

Sue Swanson re: Window Deadline, 4/12/02 21. Memorandum to Jennifer Gifford from Sue Swanson re:

Complaint Against Steve Stines and Dave Williams, 4/16/02 22. Memorandum to Jennifer Gifford from Sue Swanson re:

Complaints against Steve Stines and Dave Williams, 4/16/02

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23.

Letter to Sue from Jennifer Gifford w/ cc to Linda

Subias, Rion S. Groves, Dave Williams, undated 24. Letter to Dave Williams from Jennifer Gifford, w/ cc to

Sue Swanson re: Series 6 Window, 4/19/02 25. Letter to Jennifer Gifford from Sue Swanson w/ cc to Rion

S. Groves, Dave Williams re: notice of termination, 10/18/02 26. Letter to Dave Williams from Jennifer Gifford re: Last

District Meeting/Sexual Harassment/Discrimination, 12/12/01 27. Letter to "Dear Colleagues" from John H. Lynch and

Stephen Leaman re. Status, 6/10/02 28. Letter to Dave Williams from Jennifer Gifford re: Meeting

on Termination/Resignation on 10/21/02 29. b. 1. All documents necessary for rebuttal or impeachment Defendants' Exhibits: A list of Exhibits Defendants may offer at trial is

attached as Exhibit A. VIII. DISCOVERY Discovery has been completed. IX. SPECIAL ISSUES None.

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X. SETTLEMENT a. Counsel for parties have discussed in good faith the issue of settlement of the case. Defendants wish to wait until the Court rules on the pending motion for summary judgment motion prior to further settlement discussions. b. Not applicable. c. Not applicable. d. Counsel for the parties may hold future settlement

discussions, however none are scheduled at this time. e. It appears from the discussion by all counsel that there is little possibility of settlement. f. There are no further settlement conferences scheduled. g. Counsel for the parties considered ADR in accordance with D.C.COLO.L.Civ.R. 16.6. XI. OFFER OF JUDGMENT Counsel and any pro se party acknowledges 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. XII. EFFECT OF PRETRIAL ORDER Hereafter, this 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. 18 The pleadings will be

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deemed

merged

herein.

This

Pretrial

Order

supersedes

the

Scheduling and Discovery Order.

In the event of ambiguity in any

provision of this Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by

stenographic notes and to the pleadings. XIII. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. 2. 3. 4. Trial shall be to a jury. Estimated trial time is five days. The trial will be conducted in Denver, Colorado. Not applicable.

DATED this _____ day of _________________, 2005. BY THE COURT: ______________________________ Patricia A. Coan, United States Magistrate Judge FINAL PRETRIAL ORDER SUBMITTED: RONALD E. GREGSON, P.C. s/Ronald E. Gregson Ronald E. Gregson Alexandra P. Smits 1775 Sherman St., Suite 1775 Denver, Colorado 80203 Facsmile: (303) 861-2706 Facsimile: (303) 861-2706 E-mail: [email protected] DAVIS GRAHAM & STUBBS LLP s/Thomas P. Johnson Thomas P. Johnson Brett C. Painter Amanda Bass Upsom 1550 Seventeenth St., Suite 500 Denver, CO 80202 Telephone: (303) 892-9400 Facsimile: (303) 893-1379 Email: [email protected] Attorneys for Defendants

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and MARK S. BOVE, P.C. s/Mark S. Bove Mark S. Bove 1775 Sherman Street, Suite 1775 Denver, Colorado 80203 Telephone: (303) 861-2702 Facsimile: (303) 861-2706 E-mail: [email protected] Attorneys for Plaintiff

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