Free Motion to Compel - District Court of Colorado - Colorado

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

Document 67

Filed 01/30/2006

Page 1 of 6

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. MOTION TO COMPEL ANSWERS TO REQUESTS FOR ADMISSION Plaintiffs BETTY GALLEGOS, et. al, by and through counsel, THE MORRELL LAW OFFICE, LLC requests that this honorable court issue its order requiring the Defendant, Swift & Company to provide full and complete answers to each Plaintiff's first Set of Requests for Admission and that this court further order Swift & Company to pay the reasonable expenses and attorney fees incurred by reason of this motion, for following reasons: STATEMENT OF CASE 1. This Civil Action arises from the implementation of a so-called Restricted Duty / Return-to-Work policy (The Policy) at Defendant Swift. Each

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

Document 67

Filed 01/30/2006

Page 2 of 6

plaintiff has permanent restrictions due to one or more industrial injuries. Implementing The Policy, Swift placed each plaintiff on medical leave of absence based upon Swift's assertion that the position each plaintiff performed was either (a) a temporary (six-month maximum) light duty assignment, or (b) a regular position that had been unreasonably accommodated beyond the six-month maximum. Plaintiffs claim that the policy is a violation of the Americans with Disabilities Act. BACKGROUND OF THE DISCOVERY DISPUTE 2. Each Plaintiff did, pursuant to applicable court rules and the Case Management Order, submit a First Set of Requests for Admission to Defendant on October 20, 2005. 3. In general, each plaintiff sought admissions in the following areas: a. Request Number One requested admission that each Plaintiff was capable of performing the essential functions of positions occupied prior to the layoff. b. Request Number Two requested admission that particular employees were permitted to work in excess of six months in the positions Swift claims are "temporary" assignment jobs. Each request identified one position and specific employees assigned to such a position in excess of six months. c. Request Number Three sought admission that specifically identified employees had been placed in a particular position after the Plaintiff's layoff. 4. Defendant sought a 30 day extension of time in which to respond. Plaintiffs did not object to the motion as Swift, through counsel, indicated it needed the additional time to review documents needed to form a response. 5. Defendant served its answers to each plaintiff's Requests for Admission. Rather than providing any answer, Defendant objected to each and every request for admission upon various grounds.

2

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

Document 67

Filed 01/30/2006

Page 3 of 6

CERTIFICATION OF ATTEMPT TO RESOLVE 6. Counsel for Plaintiff's has attempted to resolve this impasse prior to seeking assistance of the Court: a. On January 13, 2006 the undersigned sent the attached (Motion Exhibit 1) email to all defense counsel of record requesting reconsideration of the objections, and suggesting clarifications and limitations: i. Request Number One - The undersigned suggested limiting the scope of the question to those three positions performed prior to the layoff. The undersigned suggested limiting the time frame to the Plaintiff's capabilities at the time of the layoff.

ii. Request Number Two ­ The undersigned suggested that the phrase "in excess of six months" meant that the identified employee has worked in the position longer than six months. As to the issue of subparts, the undersigned brought to attention Defendant's own interrogatories that include multiple subparts with nearly each central question. iii. Request Number Three ­ The undersigned attempted to eliminate confusion as what after the layoff meant, as well as further explained the purpose regarding the identification of the particular employees alleged to have been placed in the requested position. b. The email requested complete answers within ten days. Swift has never responded to this email. Swift has never indicated whether it will or will not answer the Requests. c. On January 22, 2006 the undersigned alluded again to our problems in obtaining answers to requests for admission and advised Defense counsel that this "office is in the process of obtaining a conference with Magistrate Shaffer." (Exhibit 1, page 7) d. The following week, the undersigned's office obtained dates for a telephone conference. Defense counsel refused to set. Instead Defense Counsel requested clarification of the issues to be raised

3

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

Document 67

Filed 01/30/2006

Page 4 of 6

and relief sought. Defendant was again advised that the undersigned sought to resolve the issue regarding the objections to the requests for admission. The email notes that no response had been received to the email of January 13, 2006. (Exhibit 1, Page 9). ARGUMENTS AS TO OBJECTIONS RAISED BY REQUEST ONE 7. The Requests are not overly broad. An essential element of this claim is whether Swift claims that any given Plaintiff was incapable of performing the essential functions of the position occupied at the time of layoff. In some instances, certain Plaintiff's were transferred to other jobs immediately prior to their layoff the request sought to include all positions occupied prior to the layoff.1 In response to this objection, Plaintiffs offered to limit the inquiry to the three positions occupied prior to his or her layoff. Swift has not responded. 8. In response to the alleged confusion regarding whether the Request requested an admission as to whether the Plaintiff was currently capable of performing the position, Plaintiffs clarified, limiting the inquiry to the capabilities of the Plaintiff at the time of the layoff. Swift has not responded.

9. In response to the objection that the Request is compound, the matter is best analyzed under the discrete subpart rule. Counting all subparts of an interrogatory towards the total, regardless of whether the subparts are related to the initial questions, would unduly restrict the use of interrogatories and force automatic requests for an increase in the number of interrogatories. Williams v. Bd. of County Comm'rs, 192 F.R.D. 698, 701 (D. Kan. 2000); see also Zarlengo, 44 P.3d at 1078 (citing Nyfield v. Virgin Islands Tel. Corp., 200 F.R.D. 246, 247 (D.V.I. 2001); Safeco v. Rawstron, 181 F.R.D. 441, 443 (C.D. Cal. 1998)).

1

According to Swift documents, in the year prior to lay off Swift moved Jesus Arenivar from Trim Loin Tail to Clean Up; Manuela Arras from Stage Loin Product to Transfer Small Box; Gloria Campos from Rack Pack Liver to Scan Boxes to Auditor On Line; Petrona Coreas from Box Fresh Offal to Box Maker; Silvia Cruz from Retrimmer to Clean Up; Maria Estevez from Trim Contamination F.Q. to Clean Up to Pick Product Conveyor; Maria I. Flores from Trim Hanging Tender to Clean Up; Carmen Luna from Operate Cryovac to Scan Boxes; Maria McReynolds from Pull of Muscle Bones to Pick Product Conveyor; Bertha Pacheco from Clean Rib Bone to Clean Up Locker Room to Bag Chuck Finger Meat to Pick Product Conveyor;

4

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

Document 67

Filed 01/30/2006

Page 5 of 6

10. In the instant case, the Requests seeks an admission only to whether Swift disputes that each Plaintiff was capable of performing positions held prior to layoff. The topic and subject matter is singular. 11. Even if each is to be counted separately, each Plaintiff is permitted up to 25 Requests for Admission. (See Case Management Order Item 7(g)(4). ARGUMENTS AS TO OBJECTIONS RAISED BY REQUEST TWO 12. Plaintiff has sought to explain the term "in excess of six months after September 1, 2002" that Swift claims is vague and ambiguous. Swift has not responded. 13. The request is not compound as it is limited to one position. Plaintiff has further clarified that the information regarding the dates of hire and dates of assignment were for identification purposes. Swift has not responded. ARGUMENTS AS TO OBJECTIONS RAISED BY REQUEST THREE 14. The phrase "after [Plaintiff's] layoff" is not vague and ambiguous as claimed by Swift. In any event, this has been clarified to mean the days and weeks and months after that particular employee was placed on involuntary medical leave. Swift has not responded. RELIEF SOUGHT 15. Plaintiff requests this honorable court issue an order finding the matter requested to be admitted, or require Swift to fully answer each request, or other such relief as the Court may find proper. 16. Your undersigned attorney incurred the sum of $475.00 as reasonable costs and attorney fees with respect to this motion. 17. In conjunction with Rules 36(a)and 37(a) of the Federal Rules of Civil Procedure, the Moving Party seeks sanctions in sum of the costs and attorney fees referred to above; the failure on the part of the Responding Party to answer the subject Requests was not substantially justified, nor are there any circumstances that would render the imposition of the sanctions unjust.

5

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

Document 67

Filed 01/30/2006

Page 6 of 6

WHEREFORE, Plaintiffs respectfully request that this honorable court issue its order requiring the Defendant to answer fully and completely each of the Request for Admission contained in each Plaintiff's First Set of Requests for Admission and that Plaintiffs be awarded costs and attorney fees. Dated this 30th day of January, 2006. THE MORRELL LAW OFFICE, LLC /S/ Britton Morrell Britton Morrell, Esq. 1305 8th Street Greeley, Colorado 80631 ATTORNEY FOR PLAINTIFFS CERTIFICATE OF MAILING I hereby certify that on the 30th of January 2006 I caused to be faxed and mailed a copy of the foregoing MOTION TO COMPEL ANSWERS TO REQUESTS FOR ADMISSION, by E-FILING: W.V. Bernie Siebert, Esq. SHERMAN & HOWARD LLC 633 17th Street, Ste. 3000 Denver, Colorado 80202 STUART B. JOHNSTON, JR. VINSON & ELKINS, L.L.P. 3700 Trammell Crow Center 2001 Ross Avenue Dallas, Texas 75201-2975

6