Free Proposed Pretrial Order - District Court of Colorado - Colorado

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-01690-WDM-MJW CONAIL CROSS, Plaintiff, v. THE HOME DEPOT, Defendant.

FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES A Trial Preparation Conference was held on November 29, 2005 at 10:00 a.m. in Courtroom A902 before Judge Walker D. Miller. William R. Hess, Esq., 5455 Wilshire Blvd., Suite 2100, Los Angeles, CA 90036, (323) 931-7330, appeared on behalf of the Plaintiff and Daniel E. Friesen, Esq., 1430 Wynkoop Street, Suite 300, Denver, Colorado, 80202 (720) 9046000, appeared on behalf of Defendant. 2. JURISDICTION This Court has jurisdiction over this matter pursuant to 42 U.S.C. § 2000e-5.

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 2 of 16

3. CLAIMS AND DEFENSES a. Plaintiff: Plaintiff claims that he is entitled to relief under 42 U.S.C. Section 1981 for actionable events occurring between August 27, 1997 and August 27, 1999. Specifically, Plaintiff claims that Defendant failed to promote him to the position of Store Manager during that time period, and such failure to promote was based on his race. (Approximately 19 Store Manager positions were filled in Home Depot's Colorado District between August 27, 1997 and August 27, 1999.) Plaintiff also claims that Defendant deliberately interfered with his participation in scheduled advanced manager training programs and/or failed to provide him with the opportunity to attend such training programs. Plaintiff contends that such conduct constituted an unlawful adverse employment action and was based on his race. In addition, Plaintiff claims that the decision to downgrade him on or about July 30, 1999 constituted an unlawful adverse employment action based on his race. Plaintiff further claims that Defendant and its representatives, including legal counsel, deceived Plaintiff into believing that he could and would be promoted, when in fact they never intended to comply with their promises. Specifically, and at all times, Defendant had falsely represented that it would not adversely use information provided by him in confidence to them about his prior employment and discrimination claims. Such information was provided and/or obtained during the course of Defendant's legal representation of Plaintiff in defense of a sex harassment

2

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 3 of 16

claim by another employee. Nonetheless, Defendant obtained the benefit of Plaintiff's performance and encouraged his expectations that he could and would be promoted. Plaintiff is seeking compensation for all of his economic loss, including back pay and front pay, and loss of benefits. He is seeking compensation for the mental and emotional distress and physical suffering, he has suffered and continues to suffer as a result of Defendant's conduct. Plaintiff is also seeking an award of punitive damages because the adverse employment actions and discrimination were taken by, known to and/or sanctioned by Home Depot's regional and district directors, officers, managers, and legal representatives, including, but not limited to, Timothy Pfieffer and Michael J. McEnroe. b. Defendant:

Plaintiff has one claim in this case. He alleges he was denied promotions from Assistant Store Manager ("ASM") to Store Manager between August 27, 1997 and August 27, 1999 because of his race in violation of 42 U.S.C. § 1981. Home Depot denies Plaintiff=s claim and states that Plaintiff was not selected for promotions to Store Manager during this period because, based on his job performance, he was not the most qualified person for the positions. Through the years, Mr. Cross received consistently mediocre performance ratings. He had problems with "motivating others," "developing and training associates," "self-motivation," monitoring," "understanding numbers," "enforcing standards," and "leadership." In contrast, Home Depot promoted employees who consistently performed better than Plaintiff. Home Depot also maintains that Plaintiff's damages, if any, are limited by the after acquired evidence rule because it was discovered, during litigation of this case, that he lied on 3

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 4 of 16

his employment application. Home Depot has also asserted affirmative defenses in its answer, many of which are no longer pertinent because Plaintiff's claims have been limited through the previous proceedings in this action. Home Depot's defenses that remain relevant include the following: failure to mitigate damages and statute of limitations. In addition, Home Depot claims that Plaintiff's claim for race discrimination should be limited by the doctrines of law of the case, issue preclusion, waiver and estoppel because of Plaintiff's voluntary dismissal with prejudice of his claim for race discrimination under Title VII covering the period from April 15, 1999, forward. 4. STIPULATIONS The following facts are undisputed: 1. The Home Depot sells home improvement products and services in large retail

stores throughout the United States. 2. Although the Home Depot=s stores vary in size, in 1997-2000 each Colorado

Home Depot store generally had between 150-250 employees and between $25-45 million gross annual revenues. 3. Plaintiff is an African-American resident of Colorado who commenced

employment with the Home Depot in August, 1988 as a Sales Associate. 4. California. 5. Plaintiff became an Assistant Store Manager at the Home Depot store located at Plaintiff was promoted to Assistant Store Manager in November, 1992, in

7120 North Academy Blvd., Colorado Springs, Colorado in January 1999, store 1510. 4

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 5 of 16

6.

ASMs have general managerial duties and overall store responsibilities, as well as

responsibility for several specific departments. Departments are overseen by Department Heads, who report to the ASMs. 7. On July 30, 1999, Plaintiff was downgraded from a promotable to an

unpromotable category and thereafter was not considered for promotion to Store Manager. 8. Home Depot did not promote any ASMs to Store Manager in Colorado from

January 14, 2000 to February 10, 2000. 9. 10. Mr. Cross was hired for an indefinite period of time. Mr. Cross= employment application states: AThe information given in this

application is true in all respects. I agree if the information is found to be false in any respect including omission of information, I will be subject to dismissal without notice at any time.@ 11. Home Depot provides employees with extensive training on a variety of subjects

and encourages its employees to undergo training. 12. training log. 13. On four occasions, Mr. Cross was instructed in writing to seek further training. 5. PENDING MOTIONS None. 6. WITNESSES a. List the non-expert witnesses to be called by each party. List separately: Mr. Cross completed at least 73 training classes at Home Depot as reflected in his

5

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 6 of 16

Plaintiff's Witnesses (1) 1. Plaintiff=s witnesses who will be present at trial: Conail Cross: Discrimination at Home Depot since date of employment;

Promises and representations of Home Depot employees, including Chuck Lempereur; Performance since date of employment; Comparative qualifications of assistant store managers who were promoted over Plaintiff; Defendant's promotion practices and policies; Damagespecuniary, mental, emotional and physical. 2. Jaqueline Cross: Wife of Plaintiff. Damages-pecuniary, mental, emotional and

physical, including loss of consortium. 3. Hector Hernandez: Employment history, discriminatory and retaliatory

practices of Home Depot and its employees, including Chuck Lempereur; Defendant's promotion practices and policies. 4. Daniel E. Friesen: How and when Defendant and its agents obtained

Montgomery Ward and other materials and information regarding Plaintiff's prior employment history and prior discrimination claims and whether releases were obtained from Plaintiff. (2) 1. Plaintiff=s witnesses who may be present at trial if the need arises: Sherri McCune: Discriminatory and retaliatory practices of Home Depot and

its employees, including Chuck Lempereur; Comparative qualifications of assistant store managers who were promoted over Plaintiff; promotion practices and succession planning.

6

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 7 of 16

(3)

Plaintiff=s witnesses where testimony is expected to be presented by means of a deposition:

1.

Chuck Lempereur: Performance/employment history with Defendant,

including discrimination and retaliation charges made as a result of his conduct; Promotion practices in Colorado and other areas where he worked; Succession planning: practice and procedure in Colorado; Persons promoted while he worked in Colorado; Review 9-Box Grids and performance evaluations and management tracking applications prepared while he was district manager; Comments showing racial bias; Promises and representations to Plaintiff re: Store Manager position; Defendant's employment practices and procedures; Problems at Store 1510 with employees, management and maintenance; District managers and store configuration; Employment history generally. 2. Tim Pfeiffer: Company organization; Company rules contained in SOP's and

handbooks; Promotion policies and practices; Succession planning: practice and procedure in Colorado and western states; Conduct toward Plaintiff; Supervision of Lempereur; Involvement in succession planning and promotions as Regional Vice President; Polices re: bonuses, options and salary; Employment history. 3. Ron Whited: Company organization; Company rules contained in SOP's and

handbooks; Promotion policies and practices and Succession planning: practice and procedure in Western States, Colorado and New-England area; Employment; History; Plaintiff's performance; Promotions in Colorado while he was District Manger.

7

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 8 of 16

4.

Sherri McCune: Discriminatory and retaliatory practices of Home Depot and

its employees, including Chuck Lempereur; Comparative qualifications of assistant store managers who were promoted over Plaintiff; Promotion practices and succession planning. 5. Hector Hernandez: Employment history, discriminatory and retaliatory

practices of Home Depot and its employees, including Chuck Lempereur; Defendant's promotion practices and policies. Defendant's Witnesses (1) Defendant=s witnesses who will be present at trial: 1. Conail Cross will testify in person or by deposition concerning the matters

covered in his deposition. 2. Dave Ash will testify in person concerning the 9-box grid meeting on July 30,

1999, Mr. Cross= performance, promotions in Colorado and other subjects identified in Defendant=s Disclosures. 3. Mike Carter will testify in person concerning the Plaintiff=s performance,

capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Disclosures. 4. Chuck Lempereur will testify either in person or by deposition concerning the

Plaintiff=s performance, capabilities and reputation, the Home Depot=s policies, procedures, practice, promotions and all other matters identified in Disclosures and testified to in his July 10, 2002 deposition.

8

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 9 of 16

5.

Cheryl LeConey may testify in person concerning the Plaintiff=s performance,

capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant's Disclosures. 6. Jennifer Thrower may testify in person concerning the Plaintiff=s performance,

capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant's Disclosures. 7. Chris Springer may testify in person concerning the Plaintiff=s performance,

capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant's Disclosures. 8. William Thornton may testify in person concerning the Plaintiff=s

performance, capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant=s Disclosures. 9. Lynn Jacobs may testify in person concerning the Plaintiff=s performance,

capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant=s Disclosures. (2) Defendant=s witnesses who may be present at trial if the need arises: 1. Dana Chango may testify in person concerning the Plaintiff=s performance,

capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant's Disclosures.

9

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 10 of 16

2.

Anthony Clayton may testify in person concerning the Plaintiff=s performance,

capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant's Disclosures. 3. John AMike@ Hill may testify in person concerning the 9-box grid meeting on

July 30, 1999 promotions in Colorado, his own qualifications, Mr. Cross= performance, and relative qualifications, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant's Disclosures. 4. Charlie Stroud may testify in person concerning the Plaintiff=s performance,

capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant=s Disclosures. 5. Becky Gutierrez may testify in person concerning her knowledge, as Human

Resources Manager in Plaintiff's district, of Plaintiff=s performance, capabilities and reputation, various promotions to Store Manager in Colorado in 1999 and 2000, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant=s Disclosures. 6. Ron Whited may testify in person or by deposition concerning the Plaintiff's

performance, capabilities and reputation, the Home Depot's policies, procedures, practice, promotions and all other matters identified in Defendant's Disclosures and testified to in his March 25, 2002 deposition. 7. Phillip Plush may testify in person concerning the Plaintiff=s performance,

capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant's Disclosures. 10

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 11 of 16

8.

Frank McManus may testify in person concerning Plaintiff=s performance,

capabilities and reputation, the Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant's Disclosures. 9. Tim Pfieffer may testify in person concerning the Plaintiff=s performance,

capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant's Disclosures and testified to in his March 6, 2002 deposition. 10. Harry Alfred may testify in person concerning the Plaintiff=s performance,

capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant=s Disclosures. 11. Marc Brown may testify in person concerning the Plaintiff=s performance,

capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant=s Disclosures. 12. Matt Story may testify in person concerning the 9-box grid meeting on

July 30, 1999 promotions in Colorado, his own qualifications, Mr. Cross= performance and relative qualifications. 13. Scott Greske may testify in person concerning the 9-box grid meeting on

July 30, 1999 promotions in Colorado, his own qualifications and employment history, and relative qualifications of others promoted. 14. Jason Britain may testify in person concerning Home Depot=s policies,

procedures, practice and Mr. Cross= performance and relative qualifications. 11

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 12 of 16

15.

Hector Hernandez may testify in person or by deposition concerning the

Plaintiff=s performance, capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant=s Disclosures and testified to in his May 8, 2002 deposition. (3) Defendant's Witnesses where testimony is expected to be presented by means of a deposition or Affidavit: 1. Ron Whited may testify by deposition concerning the Plaintiff=s performance,

capabilities and reputation, the Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant=s Disclosures and testified to in his March 25, 2002 deposition. 2. Chuck Lempereur may testify by deposition concerning the Plaintiff=s

performance, capabilities and reputation, the Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant=s Disclosures and testified to in his July 10, 2002 deposition. 3. Penny Allen will testify by Affidavit concerning the Plaintiff=s performance,

capabilities and reputation, Home Depot=s policies, procedures, practice, promotions and all other matters identified in Defendant=s Disclosures and in Ms. Allen's Affidavit attached to Defendant's Motion for Summary Judgment. 4. Conail Cross may testify by deposition concerning his performance reviews,

disciplinary notices, training, capabilities, mitigation efforts, medical history and other matters covered by his deposition. 12

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 13 of 16

b.

List the expert witnesses to be called by each party. List separately: Plaintiff's Experts (1) Plaintiff's expert witnesses who will be present at trial: Dr. Patricia L. Pacey: Damages: Economic (2) Plaintiff's expert witnesses who may be present at trial:

1. 2. 3. 4.

Dr. Thomas J. Bartlett: Damages: Physical, mental, emotional (treating physician) Dr. Richard Marciniak: Damages: Mental, emotional (treating physician) Dr. Victor Neufeld: Damages: Mental, emotional (treating physician) Dr. Gerald Stein may testify in person or by deposition concerning damages. (3) Plaintiff's Expert witnesses where testimony is expected to be presented by means of a deposition:

1. physician) 2. 3. 4.

Dr. Thomas J. Bartlett: Damages: Physical, mental, emotional (treating

Dr. Richard Marciniak: Damages: Mental, emotional (treating physician) Dr. Victor Neufeld: Damages: Mental, emotional (treating physician) Dr. Gerald Stein may testify in person or by deposition concerning damages. Defendant's Experts (1) Defendant's expert witnesses who will be present at trial: None (2) Defendant's expert witnesses who may be present at trial:

1.

Richard Marciniak, M.D. may testify in person or by deposition and/or trial 13

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 14 of 16

transcript concerning Plaintiff=s alleged emotional distress. 2. Thomas Bartlett, M.D. may testify in person or by deposition concerning

Plaintiff=s health and leaves of absence from Home Depot and the Plaintiff=s claim for alleged emotional distress. 3. Gerald Stein, M.D. may testify in person concerning Plaintiff=s claim for alleged

emotional distress and matters set forth in his expert report. 4. Steven J. Shulman, Ph.D. may testify in person regarding Plaintiff=s claim for

alleged damages and in rebuttal to the report provided by Plaintiff=s expert economist, Patricia Pacey, Ph.D. (3) Expert witnesses where testimony is expected to be presented by means of a deposition: 1. Dr. Thomas J. Bartlett may testify by deposition concerning his contacts with

Plaintiff and Plaintiff's alleged damages. 2. Dr. Richard Marciniak may testify by deposition and/or trial transcript

concerning his contacts with Plaintiff and emotional distress damages. 3. Dr. Victor Neufeld may testify by deposition concerning his contacts with

Plaintiff and Plaintiff's alleged damages. 7. EXHIBITS a. List of Exhibits to be offered by each party. (1) (2) Plaintiff will offer the following exhibits: See attached list. Defendant will offer the following exhibits: See attached list. 14

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 15 of 16

b.

Copies of listed exhibits must be provided to opposing counsel no later than five

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. 8. DISCOVERY Discovery has been completed. 9. SPECIAL ISSUES None. 10. SETTLEMENT a. A settlement conference was held on March 18, 2002 before Magistrate Judge

Watanabe to discuss in good faith the settlement of this case. b. The participants in the settlement conference included counsel and party

representatives. c. d. e. settlement. f. g. There are no additional settlement conferences scheduled. Counsel for the parties have considered ADR in accordance with D.C.COLO.LCivR.16.6. The parties were promptly informed of all offers of settlement. Counsel for the parties do not intend to hold future settlement conferences. It appears from the discussion by all counsel that there is little possibility of

15

Case 1:01-cv-01690-WDM-MJW

Document 142

Filed 11/28/2005

Page 16 of 16

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. Defendant has made three offers of judgment. 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. 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 Trial is to a jury beginning December 5, 2005, and is expected to last 10 days. DATED this _____ day of _____________ 2005. BY THE COURT: ____________________________________ United States Judge

APPROVED:

16