Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01295-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION No. 04-B-1295 (CBS) BETTY GALLEGOS, BERTHA PACHECO, LAURA REYES, MANUELA ARRAS, DAVID ZUBIA, ANTONIO MEZA, JESUS ARENIVAR, ALBA BARRIOS, GLORIA CAMPOS REYNEL CARMONA, SAN JUANITA CELEDON, SYLVIA CRUZ, JESUS ESTRADA, MARIA ISABEL FLORES, JORGE MARTINEZ, MARIA MCREYNOLD, IGNACIO RANGEL, JUANA ROSALES, MARIA TOVAR, ANTELMO ZUNUN, MARIA ALVA, PETRONA COREAS, MARIA ESTEVEZ, ALFREDO PINEDA, CARMEN LUNA, PATTY LEHMKUHL & LUIS OCHOA Plaintiffs v. SWIFT & COMPANY, Defendant.

OBJECTION AND RESPONSE TO DEFENDANT SWIFT'S MOTION FOR PROTECTIVE ORDER TO DENY OR LIMIT THE SCOPE OF PLAINTIFFS' NOTICE OF DEPOSITION PURSUANT TO RULE 30(b)(6)

COMES NOW PLAINTIFFS Betty Gallegos et. al and objects in part and responds in part to Defendant's Motion for Protective Order and as grounds states as follows: DEFENDANT HAS FAILED TO CONFER IN GOOD FAITH AS REQUIRED.

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FRCP(26)(c) requires that Defendant make a good faith attempt to resolve the issue informally with the requesting party prior to seeking such relief from the Court. Swifts failure is illustrated as follows: (a) (b) (c) Swift's Motion fails to certify that it has conferred with Plaintiffs' counsel as required by the rules. Swift raises in its motion, for the first time, certain concerns with respect to the scope of Rule 30(b)(6) Deposition. Concerns which, had they been raised before, would have been informally resolved. Swift has failed to respond to suggested limitations to the scope of areas of inquiry made by Plaintiffs' counsel.

For these reasons alone, Swift's Motion to deny the Deposition should be denied. As discussed below, it is Plaintiffs' position that many of the disputed areas can be resolved without court action. SWIFT FAILS TO DESCRIBE WHY INFORMATION IS NOT REASONABLY AVAILABLE. Swift's claim that information regarding its own actions is not reasonably available is likewise without support to enable to court to determine the validity of such a claim. RESPONSE TO SPECIFIC OBJECTIONS 1. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain the adoption and implementation of the Swift & Company "Restricted Duty Return to Work" policy (afterwards referred to as "The Policy." Despite communication between counsel since January 9, 2006 regarding the deposition, Swift raises concern for the first time in its motion regarding the alleged failure of the topics to specify a particular Swift facility at issue. At no time did Swift's counsel ever raise any concern or desire for clarification that the inquiry would limited to the Greeley facility. Following the filing of the Motion, the Plaintiff's counsel indicated no objection to limiting the inquiry on this topic to the

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Greeley facility. The deposition on this topic occurred, albeit over objection by Defendant, on Tuesday January 31, 2006. 2. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain the identification and designation of positions to be considered "Restricted Duty Positions" according to the Policy. As above, there was no disagreement and this topic was covered in the deposition on January 31, 2006. 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. An employer's understanding of a plaintiff's medical restrictions is a relevant element in a disability discrimination claim. Swift's answer to interrogatory No. Five simply refers plaintiff to review the medical records. This is insufficient for two reasons: A. B. Each plaintiff has on average 500 pages of medical records. The ADA permits inquiry into the employer's subjective understanding and beliefs as to the functional limitations of a plaintiff's physical impairments. A reference to hundreds of pages of medical records does not substitute for, nor can it convey, Swift's beliefs and understanding regarding the limitations of each Plaintiff

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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 [Plaintiffs].

Following the deposition on January 31, 2006, counsel discussed the Motion. A suggestion was made to limit the inquiry to the last position performed by each Plaintiff prior to his or her layoff. Plaintiffs are agreeable to this compromise. 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. Plaintiffs are agreeable to the suggested modification to limit the inquiry to the job performance issues relating to a Plaintiff's physical ability to do the job. Plaintiffs would further suggest limiting the inquiry to the position performed at the time of layoff. 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. Swift claims that it considered all open positions both prior to and six weeks after each Plaintiff's layoff but found none matching each Plaintiff's physical restrictions. Swift has yet to produce, despite request, an actual list of what positions it considered for Plaintiffs. (See e.g. Exhibit 1:6-7) Swift's answers merely refer plaintiff to the medical records. These are records filled out by Swift's in-house

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health service department. There are three reasons why Swift's answer is not duplicative for testimony on this topic: A. For a number of plaintiffs, no medical forms indicating consideration of open positions can be found. B. C. In the majority of instances, the medical forms do not specify why a position was disapproved. Swift's counsel has indicated that there may be other undisclosed positions other than those mentioned in the medical records that were considered by Swift. (See e.g. Exhibit 1:9-10) An employer's claim that it sought to accommodate a medically restricted employee is relevant. For the above reasons, Plaintiffs are opposed to limiting the testimony to a general review of available position, but rather testimony specific to each Plaintiff. 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. Following the Deposition on January 31, 2006 and the conference between counsel, Plaintiffs are willing this inquiry to why each plaintiff was laid off and what actions were taken to communicate the layoff to each plaintiff. 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 abovereferenced lawsuit.

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Following the Deposition on January 31, 2006 and the conference between counsel, Plaintiffs would agree to limiting the testimony regarding the report to how the reports are generated and how to interpret the reports. 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. Following the Deposition on January 31, 2006 and the conference between counsel, Plaintiffs would agree to withdraw this area of inquiry. 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. Following the Deposition on January 31, 2006 and the conference between counsel, Plaintiffs are willing to limit this area of inquiry only those positions that Swift identifies it considered placing each Plaintiff. 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. Following the Deposition on January 31, 2006 and the conference between counsel, Plaintiffs are willing to limit this area of inquiry only those positions that Swift identifies it considered placing each Plaintiff. 12. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain all efforts made to communicate with

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Plaintiff, Plaintiff's representatives, or Plaintiff's medical providers regarding accommodation of his or her medical limitations. Plaintiffs suggest seek to understand what communications occurred between Swift and Dr. Brignoni, the Union in March of 2005 when several positions were reviewed. If Swift communicated with the Plant physician or nurse regarding a particular Plaintiff's ability to perform a particular position then this information is relevant. 13. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain the allegations, affirmative defenses or denials contained in Defendant's Answer to Plaintiff's Complaint. Following the Deposition on January 31, 2006 and the conference between counsel, Plaintiffs would agree to withdraw this area of inquiry. 14. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain the allegations, affirmative defenses or denials contained in Defendant's Answer to Plaintiff's Interrogatories. Following the Deposition on January 31, 2006 and the conference between counsel, Plaintiffs would agree to withdraw this area of inquiry. 15. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain the allegations, affirmative defenses or denials contained in Defendant's Answer to Plaintiff's Requests for Admission. Following the Deposition on January 31, 2006 and the conference between counsel, Plaintiffs would agree to withdraw this area of inquiry.

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16.

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.

Following the Deposition on January 31, 2006 and the conference between counsel, Plaintiffs would agree to withdraw this area of inquiry. 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 a Request for Production from the EEOC or CCRD. Following the Deposition on January 31, 2006 and the conference between counsel, Plaintiffs would agree to withdraw this area of inquiry. Dated this 2nd day of February, 2006 THE MORRELL LAW OFFICE, LLC

S/ Britton Morrell Britton Morrell, Esq. THE MORRELL LAW OFFICE, LLC 1305 8th Street Greeley, Colorado 80631 ATTORNEY FOR PLAINTIFFS

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CERTIFICATE OF MAILING I hereby certify that on the 2nd of February, 2006 I served the above RESPONSE AND OBJECTION TO MOTION FOR PROTECTIVE ORDER by E-FILING. S/ Britton Morrell

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