Free Response to Motion - District Court of Colorado - Colorado

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Civil Case No. 04-B-1295 (CBS) GALLEGOS ET. AL. v. SWIFT & COMPANY

MOTION EXHIBIT 1

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STAFF:
ATTORNEY & COUNSELOR AT LAW

Britton Morrell

Brandy Gutierrez Paralegal Frank Zamora Paralegal Gina Rivera Morrell Accounts Adriana Varela* Paralegal

November 28, 2005 W.V. Bernie Siebert, Esq. SHERMAN & HOWARD LLC 633 17th Street, Ste. 3000 Denver, Colorado 80202 VIA EMAIL AS WELL Re: Gallegos v. Swift REQUESTED SUPPLEMENTATION OF ANSWERS

Dear Mr. Siebert: I have had an opportunity to review each of the answers from your client in conjunction with my review of the employment records produced for each Plaintiff. I have identified the following deficiencies and ask that your client voluntarily amend or supplement its Prior Answers. Please review this letter and advise me within 15 days whether your client is agreeable to amend and supplement its answers as requested, and if so, by when.

MISLABELED OR INCOMPLETE PEOPLE SOFT FORMS
With respect to the positions each plaintiff performed, your client primarily referred me to a specific (dark) document that I have labeled People Soft Form. However in several instances, the form provided did not pertain to the Plaintiff. SW Bate No. SW2154 Plaintiff Maria Alva Notes SW2154 lists many positions for which Swift has produced neither Job Data Forms nor Job Change Forms see e.g. the Swing Up position, the Mark Forequarter Position and the Open Arm Bone position contained in the People Soft Form. The discrepancies between this document and the Job Change Forms that have been produced lead me to question whether8this document pertains to 1305 TH Street · Greeley, CO 80631 my client at all. 970-356-9898 · Fax 970-356-9899
[email protected]

* Admitted to Practice Law in Mexico

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SW2475 SW1923 SW1924

Manuela Arras Gloria Campos Gloria Campos

SW1731 SW2982 SW2308 SW2388

Reynel Carmona Petrona Coreas Sylvia Cruz Jesus Estrada

Forms that have been produced lead me to question whether this document pertains to my client at all. This form does not list all positions performed by Ms. Arras. This form does not pertain to Ms. Campos. I believe that document pertains instead to Ms. Barrios. SW1924 is, on its face, contradictory, to the employment history contained on SW1923. I doubt that both documents relates to one individual, as claimed by your client. Do not know who this belongs to. I cannot determine to whom SW1924 pertains. pertains not to Mr. Carmona but to Ms. Cruz. Furthermore, SW2982 does not pertain to Ms. Coreas, but instead (I believe) to Ms. Lehmkuhl. Furthermore, SW2308 does not even pertain to Ms. Cruz. I believe this document really pertains to Reynel Carmona. SW2388 is inconsistent with Mr. Estrada's employment history. I believe this document actually belongs to Silvia Cruz. Please advise. SW1731 was included with Mr. Carmona's employment records. Your client produced SW2414 with Ms. Flores' employment records ­ but I believe that document pertains to Mr. Estrada as the date of hire coincides with his date of hire. I believe, based upon the dates of hire, that SW1696 pertains to Ms. Flores notwithstanding the fact that it was included in Mr. Martinez' employment records. SW1696 does not even apply to Mr. Martinez. The date of hire is incorrect and the only position listed is Trim Hanging Tenders. As discussed below, I believe SW2245 pertain to Mr. Martinez. The sheet assigned to is really that of Jorge Martinez

SW1731

Maria Isabel Flores

SW1696

Jorge Martinez

SW2245

Maria McReynolds

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SW2568

Ignacio Rangel

SW1696

Alfredo Pineda

SW1836

Juana Rosales

SW1966 SW2611 SW2099

Maria Tovar David Zubia Antelmo Zunun

Martinez SW2568 was not contained in the Rangel documents. SW2568 was contained in the Antonio Meza records and it is a Job Change Form. SW2268 was produced in the Rangel documentation but that document is at odds with SW2267 and SW2669. SW2268 gives a date of hire as 11/20/2000 while the others give a date of hire of 1/20/1998. SW1696 was not contained in the Pineda documents. SW1696 was contained in the Jorge Martinez records. 1695 and 1697 also pertain to Jorge Martinez (ostensibly) and therefore I doubt that SW1696 pertains to Alfredo Pineda. Furthermore the date of hire on SW1696 is 7/6/1998 as opposed to Mr. Pineda's actual date of hire 3/26/2001. The only position listed on SW1696 is Trim Hanging Tenders. None of Mr. Pineda's employment records refer to such a position ­ indeed your LMS Reports have him in the Chisel Head position. SW1836 was not contained in the Rosales' documents. SW1836 was contained in the Bertha Pacheco records. SW1835 and SW1837 also pertain to Bertha Pacheco. The date of hire 1/20/98 is inconsistent with the date of hire in other Rosales records of 4/22/97 SW1966 lists only positions after 1997. My client began work at the Plant on 9/18/1989. SW2611 is an incomplete list of positions. SW2099 list positions inconsistent with the Job Change Forms, leading me to question whether this form even pertains to Mr. Zunun.

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AS TO SWIFT'S ANSWERS TO EACH PLAINTIFF'S INTERROGATORIES
ONE The Essential Functions of the Position: Deficiencies: Your client refers me to the Physical Demands Assessments (PDAs). This is insufficient. The PDA ostensibly describes the physical requirements to perform the essential functions of the position. It does not describe the essential functions. For example, the essential functions of a secretary cannot be determined simply the standing, sitting, and lifting required. By way of further example, I attach a job description of a Position at another meatpacking plant. Requested Correction: Please have your client provide a comprehensive description of the essential functions of each position performed by Plaintiff. If your client has not created such a description, please advise, when such compilation can be produced for the above positions. TWO Interrogatory Two requested for the last two position performed by Plaintiff, identification of all employees who had, for any period of time, performed the position between Plaintiff's layoff to September 1, 2004. Your client referred to the "Supervisory Detail" previously produced. And "to the medical records for any temporary job assignments, to the extent that any such record exists." My assumption is the Supervisory Detail referred to is the Swift LMS Reports given to this office on CD-ROM. If I am mistaken please advise. Deficiencies: I am willing to accept the information contained on the LMS Report as the exhaustive answer. I am not, however, prepared to accept unknown, perhaps un-produced, medical records referring to other employees performing Plaintiff's two positions prior to layoff. Requested Correction: Plaintiff requires a definitive and exhaustive statement without reference to any document that has not been specifically identified by Swift Bate Number as to what employees have

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performed the requested positions and during which dates. If the complete and exhaustive answer is contained in the LMS Reports, please advise. If this is not, please have your client provide the list. FOUR Interrogatory Four requested description of all conversations and communications Swift had with Plaintiff with respect to accommodating his restrictions, including in the description the participants, the date and time, a description of what was said, and any documentation of the communication. Deficiencies: You objected, stated that the interrogatory as overbroad and unduly burdensome. I am willing to refine or narrow my interrogatory if you will explain the overbreadth or burden that the interrogatory poses for Defendant. Your client's reference unidentified document in Plaintiff's medical records (to the extent that the document exists) is insufficient. Requested Correction: Given some of the questions during the depositions regarding meetings regarding accommodation, it appears Defendant claims to have had some conversations with each Plaintiff regarding accommodation of his or her restrictions. If Defendant intends not to present evidence of discussions with each Plaintiff with respect to accommodating the restrictions, please advise, otherwise please fully answer this Interrogatory.

AS TO MARIA ALVA
ONE Interrogatory One requested identification and description of all positions performed by Plaintiff. NAMES OF POSITIONS Your client identified SW2154 as giving the positions, as well as stating that the medical file "may also" contain the names of Job Positions for "restricted duty." Deficiencies: I believe, just as it would be insufficient to refer Defendant to the medical records to identify medical restrictions, it is insufficient to refer to voluminous medical records to ferret

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out the names of Job Positions for Restricted duty. Furthermore, as described above, I have doubts as to whether SW2154 even pertains to Ms. Alva. From the Job Change Forms provided I can discern that Ms. Alva performed the following positions: From 8/6/98 8/11/98 9/11/98 5/8/00 10/15/02 To 8/11/98 9/11/98 5/8/00 10/15/02 9/6/03 Job Title Base job Probationary Loin Trim Bottom Butts BPI Picker Pick Product Conveyor 2480 32360 26640 (also 13677) Job No. 3341

Requested Correction: To the extent that the above list conflicts with your client's understanding of the positions performed by my client, please have your client provide a comprehensive list of all positions performed by Plaintiff. THREE Interrogatory Three requested identification of all positions for which you considered placing Plaintiff and identify the particular reasons you claim that the position could not be offered to him. Your answer states, "To the extent that any records exist, please refer to Plaintiff's medical records for information concerning what positions Plaintiff was considered for and the reasons he was not offered the position." Deficiencies: Referring Plaintiff to voluminous medical records (which may or may not exist) is insufficient. Defendant has produced only (as far as I can determine) the following Medical Recommendation Form records with Respect to Ms. Alva: APPROVED Pick fat from belt SW10699 DISAPPROVED Clean Grease on Tables per Brignoni due to limit of 4 lbs. With RUE plus overhead work 3/2/05Clean Grease on Tables needed to take hose down. SW10700 DISAPPROVED Combo 50 Monitor per Brignoni due to constant bending, reaching & pulling. Not 3/2/05Combo 50 Monitor within her permanent Restrictions. SW10701 3/2/05Pick Fat from Belt

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3/2/05Combo 65 Monitor 3/2/05Combo 85 Monitor 4/11/05Pick 65 Trim Requested Correction:

DISAPPROVED Combo 65 Monitor per Brignoni due to 4 Lbs. Limit with RUE SW10702 DISAPPROVED Combo 85 Monitor per Brignoni due to exceeding the 4 lb. Limit with RUE. SW13806 DISAPPROVED Pick 65 Trim Not approved per Brignoni job exceeds permanent restrictions SW10698

If this is not the exhaustive and complete statement of all positions that Swift considered for Plaintiff, please have your client provide such a statement. If these documents do not provide the complete reasons for which Plaintiff was not offered the position, please have your client provide such a statement.

AS TO JESUS ARENIVAR
THREE Interrogatory Three requested identification of all positions for which you considered placing Plaintiff and identify the particular reasons you claim that the position could not be offered to him. Your answer states, "To the extent that any records exist, please refer to Plaintiff's medical records for information concerning what positions Plaintiff was considered for and the reasons he was not offered the position." Deficiencies: Referring Plaintiff to voluminous medical records (which may or may not exist) is insufficient. Defendant has produced only (as far as I can determine) the following Medical Recommendation Form records with Respect to Mr. Arenivar: 3/2/05Drive Cattle Mill 3/2/05Flush Weasand 3/2/05Pick Bones APPROVED Drive Cattle Mill, by Brignoni sw10862 DISAPPROVED Flush weasand, not approved lifting away from body, Brignoni sw108634 APPROVED Pull Fat from Belt per Brignoni sw10861

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STAFF:
ATTORNEY & COUNSELOR AT LAW

Britton Morrell

Brandy Gutierrez Paralegal Frank Zamora Paralegal Gina Rivera Morrell Accounts Sylvia Felix Paralegal

January 22, 2006 W.V. Bernie Siebert, Esq. SHERMAN & HOWARD LLC 633 17th Street, Ste. 3000 Denver, Colorado 80202 Re: Concerns regarding Swift Deposition and Discovery

Dear Mr. Siebert: With respect to the Concerns regarding Swift's Deposition B.3 A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain Swift's understanding of each plaintiff's medical limitations or restrictions. Your statement of Swift's understanding of each Plaintiff's medical restrictions does not substitute for your client's testimony under oath in discovery. Just as you had questions regarding my client's understanding of their restrictions ­ I do as well. B.4. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain Swift's understanding of the essential functions and physical demands of all positions performed by each Plaintiff following imposition of permanent restrictions described in the lay off letter. I have limited the scope of my inquiry into the positions performed by my clients after the imposition of the permanent restrictions identified in the letter informing each plaintiff that he or she would be placed on involuntary medical leave. With respect to you request that I "identify" the positions performed by Plaintiffs I would direct you to your client's answer to each Plaintiff's Interrogatory One and Two. I have provided you the following: · Each Plaintiff has identified the positions he or she performed (by means of interrogatory answers and deposition testimony);
1305 8TH Street · Greeley, CO 80631 970-356-9898 · Fax 970-356-9899 [email protected]

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·

I have provided you my own understanding of the positions performed by each Plaintiff. (See my letter to you dated November 28, 2005.) Please recall that I have requested, but not yet received, a statement from your client if the lists of positions performed by each Plaintiff is incorrect.

To the extent that the above identifications conflict with your client's view, it is time that I gain a clear statement of your client's understanding of the positions each Plaintiff performed under permanent restrictions for which your client claimed later to be unable to accommodate. B.5. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain Swift's understanding of the each plaintiff's job performance in the positions covered in item 4. You claim this request is overbroad and burdensome. If Swift is willing to admit that each plaintiff satisfactorily performed the positions assigned following the imposition of permanent restrictions, then I have no need to further question under this heading. If, however, Swift claims that any Plaintiff was, as a result of the imposition of Permanent Restrictions, unable to satisfactorily perform the positions they occupied ­ then I insist you designate one or more individuals to so testify at the deposition. Swift may designate anyone it chooses who will testify as to the corporation's position in the matter, even if such testimony does not come from personal knowledge. PPM Finance, Inc. v. Norandal USA, Inc., D.C.Ill.2004, 297 F.Supp.2d 1072. However, I expect this witness or witnesses to be prepared, and educated regarding the topics designated. Dravo Corp. v. Liberty Mut. Ins. Co., D.C.Neb.1995, 164 F.R.D. 70. Swift may prepare and educate a designee with information reasonably available, whether from documents, past and current employees, or other sources. U.S. v. Taylor, D.C.N.C.1996, 166 F.R.D. 356. B.6 A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain Swift's actions with respect to the review of any available positions to place each Plaintiff in the month prior to placing the affected Plaintiff on involuntary medical leave following implementation of The Policy. You claim this request is overboard and burdensome. I have therefore limited it to the month prior to each Plaintiff's layoff. Swift claims that it had reviewed such positions for each Plaintiff. Please designate one or more individuals who can testify about such claimed review. B.7 A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain Swift's decision to subject each Plaintiff to The Policy, and all actions taken in connection with applying the policy to each Plaintiff.

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You claim this is unclear. With respect to each plaintiff, I seek to understand what actions Swift took in determining that the Policy should apply to him or her, that the position he or she performed was a temporary accommodation, what positions were reviewed for possible placement in lieu of layoff, what communications took place with Plaintiff in informing him or her of the policy, what efforts were taken to determine whether a considered position was within his or her restrictions. C. 8. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain each and every "LMS Report" which Swift has prepared and/or produced pursuant to discovery in the above-referenced lawsuit. I seek to understand certain entries of the LMS sheet, and certain gaps. I seek to establish that the LMS sheets are the final, complete and truthful answer with respect to what positions performed, and by whom for each covered week. C. 9. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain any positions that became available from March 1, 2003 ongoing. I will limit my inquiry to positions that became available during the month prior and the month-and-a-half after each Plaintiff's layoff. As this is the time frame that Swift claims it reviewed all open available positions in an effort to accommodate Plaintiffs, these positions are clearly relevant. I would suggest that the individual who provided the answer to Swift General Interrogatories Four and Five would be the individual with this information. C. 10. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain the Essential Functions and Physical Demands of all positions at the Plant. I will limit my inquiry to the essential functions of the following positions: A. Positions performed by each Plaintiff following imposition of permanent restrictions for which Swift placed the Plaintiff on forced medical leave of absence. Positions which Swift claims it considered for each Plaintiff. Positions offered by Swift to each Plaintiff. Positions that became available during the month prior and the month-and-a-half after each Plaintiff's layoff.

B. C. D.

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D. 11. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain Swift's consideration or lack thereof in placing Plaintiff in any available position following his or her layoff. It is not Plaintiff's responsibility to list the positions that Swift considered, especially when your client has yet to provide a definitive list of what positions it considered. I require your client to give testimony regarding its consideration of each and every position it considered Plaintiff that includes, but is not limited to, the identity of the position considered, when it was considered, and why the position was approved or not approved. Earlier, in my letter of November 28, 2005, I listed what positions I could determine from your client's casual reference to multiple medical and employment records. I asked for a confirmation that my list was correct or supplementation. Your client's response of December 22, 2005 falls short of a clear and definitive statement requested and required. D. 12. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain all efforts made to communicate with Plaintiff, Plaintiff's representatives, or Plaintiff's medical providers regarding accommodation of his or her medical limitations. Regardless of the total number of such witnesses, Plaintiffs are entitled to be apprised of all communications which Swift as a corporate entity claims it engaged in an effort to accommodate Plaintiffs. I am willing to limit the inquiry to the time frame after imposition of permanent medical restrictions for which Swift placed the Plaintiff on forced medical leave. E. 14 ­ 16 and 18. Please review Ecrix Corp. v. Exabyte Corp. 95 F.Supp 2d 1155 (D.Colo 2000). (Seeking knowledge of facts supporting claims and defenses does not require production of attorney's mental impressions.) E.17. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain the any document produced in response to Plaintiff's Requests for Production. I am happy to limit this inquiry to documents produced by my office at least three business days prior in the Deposition Exhibits. Other areas of Concern I have not yet had a response as to my efforts to resolve your objections to Plaintiff's request for admission.

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I have not yet received a response to my concerns raised about your December 22, 2005 response to our request for Supplementation. Given our problems in obtaining answers to requests for admissions, proper supplemental responses, and inability to have you confirm Deposition attendance for all but two areas noticed, my office is in the process of obtaining a conference with Magistrate Shaffer to resolve these issues and concerns. I am willing to work out any agreeable compromise, including, if needed a short extension of time to conduct the depositions past the discovery cut off. However if I am not able to resolve these issues, I will file a motion to compel. Sincerely, Britton Morrell

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