Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-1325-WYD-MJW

BARBARA SMITH Plaintiff, v. AVAYA INC., a Delaware Corporation Defendant.

FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES The Final Pretrial Conference was held on September 8, 2005. Appearing for the parties were the following:

For the Plaintiff: George C. Price 900 Logan Street Denver, Colorado 80203 (303) 861-5500

For the Defendant: Patrick J. Miller Sherman & Howard L.L.C. 633 17th Street, Suite 3000 Denver, Colorado 80202 (303) 297-2900

2. JURISDICTION Plaintiff maintains that this Court has jurisdiction over the claims herein pursuant to 28

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U.S.C. §§1331. Plaintiff is alleging a violation of her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e, et seq., as amended, and under the Age Discrimination in Employment Act, 29 U.S.C. §§1621, et seq. Defendant agrees that Plaintiff brings claims arising under federal law, but reserves the right to argue that subject matter jurisdiction is lacking due to Plaintiff's failure to exhaust administrative remedies.

3. CLAIMS AND DEFENSES Plaintiff: Plaintiff alleges that she was terminated from employment without cause and in violation of the provisions of the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, as amended (sex), in retaliation for having advocated for a disabled employee in violation of the Americans With Disabilities Act. Defendant: Defendant denies that it has treated Plaintiff unlawfully in any way. Plaintiff's was separated form her employment with Defendant on or about February 5, 2003. Plaintiff's termination was a result of the fact that an investigation concluded that she had misrepresented that a performance evaluation for which she was responsible had been completed in a timely fashion. Plaintiff was also found to have asked inappropriate age-related questions during an interview. Plaintiff's claims that her termination had anything to do with her age or gender are without merit. Rather, her separation was for legitimate, nondiscriminatory reasons unrelated to any protected status. Nor was Plaintiff's separation the result of retaliation in violation of the Americans with Disabilities Act. Defendant never directed Plaintiff to lower a performance evaluation of an employee who was "perceived" as having a disability. In fact, Plaintiff consistently rated this employee as sub-par. Nor was Defendant's decision to terminate 2

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Plaintiff's employment related to this other employee's performance review. Defendant also has raised several separate defenses. These include failure to state a claim upon which relief can be granted, failure to mitigate damages (based, in part, upon Plaintiff's inadequate job search), failure to exhaust administrative remedies, federal and state statutory caps, the fact that Defendant acted at all times in good faith with respect to Plaintiff (negating any possibility of an award f punitive damages), workers compensation exclusivity (raised upon information and belief), the fact that Plaintiff is limited by and to all allegations and claims made before state and federal civil rights agencies and the charges filed therewith, the fact that all actions taken with respect to Plaintiff's employment were taken for legitimate, nondiscriminatory reasons, and the fact that Plaintiff's claims may be barred by the applicable statute of limitations. Defendant also is entitled to an award of attorney fees and costs as Plaintiff's claims are groundless and frivolous. In her Response to Defendant's Motion for Summary Judgment, filed June 27, 2005, Plaintiff informed the Court of her wish to voluntarily dismiss her state law claims. Defendant agrees to this request. Defendant had raised numerous separate defenses relating to Plaintiff's state law claims. Defendant withdraws these defenses as Plaintiff has withdrawn her state law claims.

4. STIPULATIONS

1. of Colorado. 2.

The Defendant is a Delaware Corporation that conducts business within the State

Plaintiff was employed by the Defendant and its predecessor companies from

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1970 until her termination in February 2003. 3. At the time of her termination from employment, Plaintiff was employed by the

Defendant as an Operations Manager.
4. Venue is appropriate in this Court.

5. PENDING MOTIONS Defendant's Motion for Summary Judgment is pending. 6. WITNESSES Please see Exhibits A and B

7. EXHIBITS a. b. Please see Exhibits C and D. Copies of listed exhibits must be provided to opposing counsel and any pro se

party 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. Counsel for the parties and any pro se party met in person and by telephone at

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various times throughout the pendency of the case to discuss in good faith the settlement of the case. A settlement conference was also held.

b.

The participants in the settlement conference, included counsel and party

representatives.

c.

The parties were promptly informed of all offers of settlement.

d. conferences. e.

Counsel for the parties and any pro se party do intend to hold future settlement

It appears from the discussion by all counsel and any pro se party that there is: Some possibility of settlement

f.

The date of the next settlement conference before the magistrate judge or other

alternative dispute resolution method. None is scheduled.

g.

Counsel for the parties and any pro se party considered ADR in accordance with D.C.COLO.LCivR.16.6.

11. OFFER OF JUDGMENT Counsel and any pro se party 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.

12. EFFECT OF FINAL PRETRIAL ORDER 5

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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

1. 2. 3 4

Trial is to a jury. Estimated trial time is five days. Situs of trial is Denver, Colorado. Any other orders pertinent to the trial proceedings. None.

Counsel and the parties note that the procedures for setting and conducting trial and for further conferences before trial vary according to the district judge assigned to the case. The judges all have written procedures which can be obtained from the clerk's office.

DATED this _____ day of September 2005. BY THE COURT:

____________________________________ United States Magistrate Judge

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APPROVED: s/ George C. Price George C. Price 900 Logan Street Denver, Colorado 80203 (303) 861-5500 Attorney for Plaintiff /s Patrick J. Miller Patrick J. Miller Sherman & Howard, L.L.C. 633 17th Street, Suite 3000 Denver, Colorado 80202 (303) 297-2900 Attorney for Defendant

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Exhibit A - Plaintiffs Witness List Plaintiff's Non-Expert Witnesses: (1) witnesses who will be present at trial: Barbara Smith

Testimony: the Complaint.
(2)

Ms. Smith will testify to all allegations in

witnesses who may be present at trial: Chandra Nelson Clay Sutton Dale Mitchell Stacey Pina Mary Cottmeyer

Testimony: These individuals may testify to information related to Plaintiff's termination from the company.
Other individuals who may be available at trial are: Holly Berg Beth Durant Robert Buettner Mark Dawson Michael Lumley Jim Mergner Nik Wolnik Ray Zapfel Neil Ferry Richard Matovcik Willa Effler Lori Burk Holly Pieslak Mary Andretta Michelle Suarez Maribeth Hustek Plaintiff's Expert Witness: (1) Witness who will be present at trial:

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Dr. Michael Metros

EXHIBIT B

Defendant: a. Nonexpert witnesses to be called by Defendant (1) The following witnesses will be present at trial: a. Stacey Piña, Avaya Inc. EO Compliance Manager ­ East, 4252

Park City Court, Gahanna, Ohio 43230, (614) 478-0920. Ms. Piña is expected to testify regarding the investigation into Plaintiff's misconduct, her termination, and other information relevant to the claims and defenses in this matter. Ms. Piña will testify in person. (2) The following witnesses may be present at trial if the need arises: a. Chandra Nelson, Systems-Network Integration Manager, Avaya

Inc., 11399 16th Court North, St. Petersburg, FL 33716, (727) 217-1045. Ms. Nelson may testify as to Plaintiff's separation from employment, Plaintiff's work performance, and any other matters related the claims and defenses in this matter. Ms. Nelson is expected to testify in person should the need arise. b. Dale Mitchell, Services General Manager, Avaya Inc., 7618

Windover Way, Titusville, FL 32780, (407) 838-4200. Ms. Mitchell may testify as to Defendant's investigation of Ms. Smith, Ms. Smith's termination, and any other matters related to the claims and defenses in this matter. Ms. Mitchell is expected to testify in person should the need arise. c. Mary Cottmeyer, Supervisor Coaching Resource Global Sales and

Marketing, Avaya Inc., 4250 N. Fairfax Drive, 10th Floor, Arlington, VA 22203, (703) 310-3779.

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Ms. Cottmeyer may testify as to Defendant's investigation of Ms. Smith and any other matters related to the claims and defenses in this matter. Ms. Cottmeyer is expected to testify in person should the need arise. d. Jené Machinski, Human Resourced Professional, Avaya Inc., 3410

Midcourt, Carrollton, TX 75006, (972) 745-5576. Ms. Machinski may testify as to the investigation into Plaintiff's misconduct, her termination, and any other matters related to the claims and defenses in this matter. Ms. Machinski is expected to testify in person should the need arise. e. Clay Sutton, 718 Bella Vista Dr., Coppell, TX 75019, (972) 459-

5222. Mr. Sutton may testify as to the investigation of Ms. Smith, and any other matters related to the claims and defenses in this matter. Mr. Sutton is expected to testify in person should the need arise. f. Craig Campeau, The Home Depot, 1200 Mayberry, Highlands

Ranch, CO 80129, (720) 344-7645. Mr. Campeau may testify as to Plaintiff's work history at The Home Depot, including her hiring and separation and the reasons therefore. Mr. Campeau is expected to testify in person should the need arise. g. may testify in person. h. exhibit may testify in person. i. j. Any witness listed but not called by Plaintiff may testify in person. Defendant may utilize the deposition testimony of any witness who Any witness needed to authenticate any document or identify any All witnesses necessary for rebuttal, sur-rebuttal, or impeachment

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does not testify in person. b. Defendant will not call any expert witnesses.

PLAINTIFF'S EXHIBIT C ­ EXHIBIT LIST

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1. E-mail from Maria Henderson dated February 5, 2003 2. RNIS Strategic Process Management document 3. E-mail from Chandra Nelson dated Wednesday, December 11, 2002 4. Compensation Notification letter effective December 1, 2002 5. E-mail from Chandra Nelson dated November 5, 2002 6. E-mail from Chandra Nelson dated November 8, 2002 7. BCS Performance Excellence Partnership Performance Review Summary for period 1/97-9/97 8. Employee Notification document dated December 1, 1999 9. Employee Notification document dated December 1, 1998

10.Memorandum to Chandra Nelson from Barbara Smith dated 2/6/03 re: accomplishments 11.Memorandum to Chandra Nelson from Barbara Smith dated 4/10/02 re: accomplishments 12.Memorandum to Ray Zapfel from Barbara Smith dated 10/7/98 re: accomplishments 13.E-mail from Chandra Nelson to Barbara Smith dated 6/12/02 14.E-mail from Barbara Smith to Sandra Nelson dated 6/12/02 15.E-mail from Lori Burk to Barbara Smith dated 3/26/02 16.Interoffice Memorandum to Stephen Adler from John Supe and Gretchen Munley, Subject: provisioning without boundaries dated 6/8/01 17.E-mail from Stephen Adler dated 1/17/01 18.E-mail from Nita Terhune to Barbara Smith dated 3/12/01 19.E-mail from Chandra Nelson to Barbara Smith dated 6/18/01 20.E-mail from VA Whitelaw to Barbara Smith 21.E-mail from Chandra Nelson to Barbara Smith dated 6/18/01 22.E-mail from Beth Durant, Thurs., August 24, 2000 to Barbara Smith with other e-mails contained on the document 23.E-mail from Kevin Schiller to Barbara Smith with an additional e-mail from Barbara Smith to Chandra Nelson dated 11/9/00 24.Letter from CR Artis dated 8/00 to Barbara Smith 25.Notecard dated 9/24/96 from Tony to Barbara Smith 26.Memorandum from Ray Zapfel to Barbara Smith dated 3/17/97 27.Letter from Don Webb dated 3/11/97 to Barbara Smith

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28.Letter dated 1/15/03 to Nilsa Gordon at the United Equal Employment Opportunity Commission from Stacey Tina of Avaya Communication 29.E-mail to Barbara Smith from Lisa Gorman dated 12/3/02 30.E-mail from Barbara Smith to Lisa Gorman dated 12/3/02 31.E-mail from Lisa Gorman to Barbara Smith dated 11/26/02 32.E-mail from Barbara Smith to Lisa Gorman dated 12/3/02 33.E-mail from Lisa Gorman to Barbara Smith dated 11/26/02 34.E-mail from Lisa Gorman to Barbara Smith dated 11/21/02 35.E-mail from Lisa Gorman to Barbara Smith dated 11/26/02 36.E-mail from Barbara Smith to Lisa Gorman dated 11/22/02 37.E-mail from Lisa Gorman to Barbara Smith dated 11/22/02 38.E-mail from Barbara Smith to Lisa Gorman dated 11/22/02 39.E-mail from Lisa Gorman to Barbara Smith dated 11/21/02 40.E-mail from Lisa Gorman to Barbara Smith dated 11/21/02 41.Dismissal and Notice of Rights for Barbara Smith Charge No. 320-200400344 dated 4/1/04 42.Charge of Discrimination dated 11/24/03 for Charge No. 320-2004-00344 43.E-mail from Mary Cottmeyer to Barbara Smith dated 1/10/03 44.E-mail from Barbara Smith to Gail Mitchell and others dated 1/9/03 45.E-mail from Debbie Kiesel-Ryan to Barbara Smith dated 1/3/03 46.E-mail from Debbie Kiesel-Ryan to Barbara Smith dated 1/3/03 47.E-mail from Barbara Smith to Chandra Nelson dated 11/3/02 48.E-mail from Barbara Smith to Chandra Nelson dated 10/31/02 49.Avaya Code of Conduct dated 2001 50.PMP 2000 materials 51.Debbie Kiesel-Ryan material 52.Marjean Nistler material 53.Any documents required for impeachment 54.Any documents required for rebuttal 55.Any documents listed or endorsed by the Defendants in this case 56.Barbara Smith's resume

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EXHIBIT D

Defendant: A. B. Avaya Code of Conduct (Plaintiff's Deposition Exhibit 4). Performance Management Evaluation Form for Salaried Employees ­

Debbie Kiesel-Ryan (Plaintiff's Deposition Exhibit 6). C. Exhibit 7). D. Deposition Exhibit 8). E. Performance Management Platform (PMP) Rating Worksheet with 14 Performance Management Platform (PMP) Rating Worksheet (Plaintiff's Handwritten notes regarding Kiesel-Ryan review (Plaintiff's Deposition

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handwritten notes (Plaintiff's Deposition Exhibit 9). F. G. Plaintiff's affidavit to EEOC (Plaintiff's Deposition Exhibit 10). Performance Management Platform (PMP) Rating Worksheet (Plaintiff's

Deposition Exhibit 11). H. I. Performance Review Summary (Plaintiff's Deposition Exhibit 12). Email exchange between Plaintiff and Chandra Nelson (Plaintiff's

Deposition Exhibit 13). J. Email exchange between Plaintiff and Deborah Kiesel-Ryan (Plaintiff's

Deposition Exhibit 14). K. Email exchange between Plaintiff and Mary Cottmeyer and others

(Plaintiff's Deposition Exhibit 15). L. September 25, 2002 email from Chandra Nelson to numerous recipients

(Plaintiff's Deposition Exhibit 16). M. Compensation Notification Letter and attached performance evaluation

documents (Plaintiff's Deposition Exhibit 17). N. O. Exhibit 20). P. Q. R. Exhibit 23). Charge of Discrimination (Plaintiff's Deposition Exhibit 21), Avaya Employee Guide (Plaintiff's Deposition Exhibit 22). Avaya Workplace Harassment Policy Statement (Plaintiff's Deposition Performance Management Platform (Plaintiff's Deposition Exhibit 18). Operating With Integrity Employee Review Form (Plaintiff's Deposition

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S. 24). T.

Avaya Equal Opportunity Policy Statement (Plaintiff's Deposition Exhibit

Performance Management Platform Supervisor Update dated March 5,

2002 (Plaintiff's Deposition Exhibit 25). U. V. W. X. Y. Z. AA. BB. CC. DD. 135). EE. FF. GG. HH. II. 1084). JJ. Email exchange between Plaintiff, Mary Cottmeyer, and others (AVAYA Notes and voicemail transcriptions of investigation (AVAYA 136-144). Notes regarding investigation (AVAYA 158-164). Notes regarding outcome of investigation (AVAYA 166-169). Notes of separation meeting (AVAYA 178). Email and handwritten notes regarding "Hotline Call" (AVAYA 1083Application for employment with Home Depot (EMP 002-003). Performance Discussion Tracking Form (EMP 011). EEOC Intake paperwork (EEOC 42-49). Avaya Equal Opportunity statement (EEOC 64). Notes regarding discussion with Dale Mitchell (AVAYA 11). Notes regarding discussion with Dale Mitchell (AVAYA 25-26). Notes regarding discussion with Plaintiff (AVAYA 28-31). Notes regarding conclusion of investigation (AVAYA 32-33). Notes regarding investigation (AVAYA 46-47). Compensation Notification Letter with handwritten comments (AVAYA

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1120-1121). KK. LL. Deposition Exhibit 1 of deposition of Dr. Michael J. Metros. Dismissal and Notice of Right to Sue (PL 85).

MM. December 11, 2002 email from Chandra Nelson to Plaintiff (PL 205). NN. OO. PP. QQ. RR. SS. TT. UU. 468). VV. Handwritten notes of Plaintiff (PL 472-475). January 18, 2001 email from Chandra Nelson to Plaintiff (PL 262). August 23, 2000 email from Chandra Nelson (PL 264). Avaya Employee Guide (PL 313-318). Operating with Integrity (PL 320-362). June 3, 2002 email from Pam Craven to Plaintiff (PL 365). February 19, 2002 email from Pam Craven to Plaintiff (PL 367). October 8, 2002 email from Chandra Nelson to Plaintiff (PL 466). October 17, 2002 email from Chandra Nelson to Plaintiff and others (PL

WW. December 16, 2002 email from Deborah Kiesel-Ryan to Plaintiff (PL 653). XX. YY. ZZ. Email exchange (PL 656-658). PL 766 ­ 816. Any document necessary for rebuttal or impeachment.

AAA. Any document listed by Plaintiff in this Pretrial Order.

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