Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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

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Filed 01/19/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION No. 1:04-cv-01295-LTB-CBS BETTY GALLEGOS, BERTHA PACHECO, LAURA REYES, MANUELA ARRAS, DAVID ZUBIA, ANTONIO MEZA, JESUS ARENIVAR, ALBA BARRIOS, GLORIA CAMPOS, REYNEL CARMONA, SILVIA 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 TO MOTION TO EXCLUDE EVIDENCE

DEFENDANT

GROSSLY

EXAGGERATES

THE

AMOUNT

OF

POSITIONS DISCLOSED. Defendant claims that Plaintiffs disclosed "nine-hundred and two entirely new positions Plaintiffs claim they could have performed." (Emphasis in the original). Plaintiffs' list actually contains only 283 positions. Most listed positions apply to more than one plaintiff. For example, the Position Pull Knuckle Skin, Job No. 00222 is listed

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for 22 of 26 of the Plaintiffs. 1st Legger, Job No. 10440 is listed for 11 of the Plaintiffs. Yet Defendant has counted just these two positions as 33 "entirely new" positions.

A MAJORITY OF THE POSITIONS WERE PREVIOUSLY DISCLOSED TO DEFENDANT IN THE ANSWERS TO INTERROGATORIES AND IN THE MOTIONS FOR PARTIAL SUMMARY JUDGMENT.

Swift lists the positions disclosed by each plaintiff in the answers to interrogatories, but fails to list the positions disclosed in each Plaintiff's Motion for Summary Judgment. The only exception is Juana Rosales where Defendant

acknowledges the positions she listed in her Motion for Partial Summary Judgment.

Plaintiffs disclosed positions to Swift in their Motions for Partial Summary Judgment as well as their answers to interrogatories. A complete list of the previously disclosed positions is attached as Appendix A. Swift has been aware since April 2006 of the positions claimed by the Plaintiffs to be within their restrictions.

SOME OF THE LISTED POSITIONS ARE NOT SEPARATE AND DISTINCT POSITIONS BUT MERELY DIFFERENT NAMES FOR THE SAME POSITION

An additional difficulty exists because Swift uses different names for the same position, for example Pick Vertebra is also known as Bone Collection; Clean Up is also

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known as Clean Belts; and Pick XF Trim is also known as Pick 85 Trim. Pick Product Conveyor, a position performed by nearly half of the Plaintiffs is referred to by a variety of other names including, Pick Trim, Pick Defects, and Pick Fat. Contamination position has four different Titles: The Trim

Trim Contamination, Trim

Contamination Forequarter, Trim Contamination USDA High, and Trim Contamination USDA Low.

Further, the Plaintiffs, most who are Spanish speaking, primarily refer to the Positions with titles other than Swift "official" position names. For example, "Dry Ice" refers to Box Add Dry Ice / Lid Position, Sort Rope Meat refers to Mark Rope Meat / Neck Bone, "Pack light pieces of meat" encompasses the Bag Flatiron, Bag Tails, and Bag / Box Tail positions.

DEFENDANT HAS ALWAYS HAD ACCESS TO THE SAME INFORMATION UTILIZED BY THE PLAINTIFFS AND CLAIMED TO HAVE ALREADY REVIEWED THE SAME POSITIONS FOR EACH PLAINTIFF The positions listed in the January 2, 2007 disclosure contain the positions listed in (1) the answers to the interrogatories; (2) the Motions for Partial Summary Judgment; (3) the positions Swift documented that it considered for each Plaintiff; (4) positions Swift placed each Plaintiff with Restrictions; (5) Open positions that came available during the time frame of each plaintiff's layoff.

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This is not a case where Plaintiffs relying upon hitherto undisclosed documents and material, suddenly produced the information. The positions identified in the Motions for Summary Judgment and in the January 2, 2007 email were identified solely with Swift's own documents to identify suitable positions that opened at the time of each plaintiff's layoff.

This is an analysis Swift claims to have already performed.1 Swift assured each Plaintiff at the time of his or her layoff that it had reviewed all open positions to determine if any matched the worker's restrictions. In addition, Swift assured each plaintiff that it would continue to review all positions that came open within the next six weeks. Defendant cannot now credibly claim to be prejudiced by this listing of positions and at the same time claim to have already reviewed each of the listed positions and reached its own conclusions about every position's suitability for each plaintiff.

PLAINTIFFS' COUNSEL PRODUCED THE LIST OF POSITIONS AS SEASONABLY AS POSSIBLE GIVEN THE VOLUME OF DOCUMENTS REQUIRED TO REVIEW IN ORDER TO DETERMINE OPEN AND SUITABLE POSITIONS

The majority of the positions listed for each plaintiff come from analysis of light duty positions that came open, whether by means of a Bid Sheet, or because Swift & Company moved an employee into a position.

In its Answer to Interrogatory Three Swift stated, "Initially, all crewed positions within the bargaining unit within Greeley plant were considered for each Plaintiff."

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As acknowledged in the Supplementation as well as Defendant's Motion, Plaintiffs, through counsel, utilized the following Swift generated documents in order to identify positions that Swift could have placed each Plaintiff: (1) The Physical Demands Assessment Sheets of each position in the plant - PDAs; (2) The Swift Employment and Medical Records of each Client; (3) Bid Sheets posted for Open Positions (Grade 1 or Higher) during the relevant two year period; (4) and the Swift LMS/Supervisory Detail Reports. (LMS Reports) used to identify whom Swift placed each week in any given position.

However, Defendant's motion fails to describe the volume of records submitted to Plaintiffs' counsel. Plaintiffs requested a listing of the positions at the Plant, who performed the positions, and the physical demands of the positions. Plaintiffs further requested all the Bid Sheets as well as the employment records and on-site medical files. Defendants produced roughly 61,100 pages of material: Documents PDAs Medical & Employment Records Bid Sheets LMS/Reports TOTAL Pages 763 14,3002 1,156 44,8803 61,099 PAGES

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Although each Plaintiff's volume of records, on average Respondents produced 550 pages per plaintiff. Each LMS report contains, on average, 440 pages. Swift produced 102 such reports.

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Identifying open and suitable positions required (1) identifying when Swift & Company placed an employee into a new position; (2) determining the physical requirements of the position; and (3) comparing the Plaintiff's restrictions to the Position. During the two-year period covered in the materials produced, Swift placed employees into new positions roughly 10,760 times. The analysis of open and suitable positions required an extraordinary expenditure of attorney and paralegal time.

Plaintiffs did not, as Defendant allege, simply "wait" to produce the list, given the limited resources of a solo-attorney's office, the information was produced as quickly as it was generated. As discussed above, Plaintiffs disclosed a majority of the positions in their answers and their Motions for Partial Summary Judgment.

WHEREFORE Plaintiffs respectfully request that the Motion to exclude the information contained in the Plaintiffs' January 2, 2007 supplemental response to Interrogatory 7 from trial be DENIED.

Respectfully submitted this 19th day of January, 2007 s/ Britton Morrell Britton Morrell THE MORRELL LAW OFFICE, LLC 1305 8th Street Greeley, CO 80631 [email protected] Attorney for Plaintiffs CERTIFICATE OF SERVICE

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I hereby certify that on the 19th of January, 2007 I served the above OBJECTION by Electronic Filing with the Clerk of the Court using the CM/ECF system which will send such filing to all parties.

S/ Britton Morrell

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