Free Brief in Opposition to Motion - 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, vs. AVAYA INC. Defendant. ____________________________________________________________________________ RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ____________________________________________________________________________

The Plaintiff, by and through counsel, provides this Response to Defendant's Motion for Summary Judgment in the above case.

INTRODUCTION Plaintiff brought this action against the Defendant alleging age and gender discrimination, retaliation for having advocated for a subordinate employee who suffered from disabilities and for wrongful termination. Barbara Smith worked for the Defendant company and its predecessors for approximately thirty-three years. She began as a clerical employee with Western Electric (Smith 11:18-24). Her last position was as an Operations Manager working for Avaya from a remote office and

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supervising a contingent of employees based in Florida. She was consistently rated as an excellent student and was considered one of the top producers in the company (Smith Aff. 3-4)

RESPONSE TO STATEMENT OF UNDISPUTED MATERIAL FACTS Plaintiff disputes the following facts listed as undisputed by Defendant: 2. While an investigation allegedly took place, it is submitted that Plaintiff's participation and input was limited, at best, and she was not given full ability to respond to allegations and misinformation provided to Human Resources. 5. While there had never been a face to face meeting with either of these supervisors, the Plaintiff had spoken to both of these individuals by telephone. 7, 8 and 9. While facts are technically true, they are taken out of context. The facts set forth in later sections of the response brief will indicate why. 11 and 12. These two statements taken together make it clear that the Defendant wants the Court to believe that the statements made by Plaintiff and alluded to in 11 were made during an interview for a position. That is not the case and there is nothing in Pina's affidavit that says a personal conversation between employees, after hours, cannot discuss issues certain personal issues. 13. Plaintiff submits that she did nothing to justify the allegations and her dismissal. 14 and 15. These "facts" do not constitute anything material and make no sense when read with other facts produced by Plaintiff.

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18. This is not supported by the information provided by Plaintiff in her deposition and in her affidavit. 19. This fact is not true and is contradicted by Plaintiff's statement that she raised the issue in a meeting with her immediate supervisors.

STATEMENT OF ADDITIONAL DISPUTED OR UNDISPUTED FACTS References to exhibits are by number. All deposition transcript pages are contained in Exhibit 1. References to deposition pages and lines are made in the following manner (Smith page: line). Plaintiff's affidavit is Exhibit 3. Reference to the affidavit will be made to the paragraph (Smith aff. ____). All references from deposition testimony are also affirmed in Plaintiff's affidavit. 1. Margene Nistler was an employee of Avaya who worked under the supervision of the Plaintiff (Smith 80: 3-23). 2. When a particular position opened up in Plaintiff's supervisory area, the Plaintiff contacted Ms. Nistler and suggested that she apply for the position (Smith 81: 15-18). 3. Ms. Nistler and the Plaintiff discussed the position and conducted an interview (Smith 181:25- 182:5). 4. Weeks after the interview, the Plaintiff telephoned Ms. Nistler, at the suggestion of another employee, because Ms. Nistler had been sick (Smith 82: 18-22). The conversation was personal in nature, was after hours and was not considered an interview (Smith 86: 9-16). Conversations of a personal nature were common among the employees (Smith 84:16-85:12). 3

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This was the conversation whwere comments about age were made. 5. The defendant has failed to provide any information or policy that indicates that employees may not have a personal conversation about personal issues during off hours. 6. Defendant failed to address this issue with the United States Equal Employment Opportunity Commission when it discussed the alleged basis for Plaintiff's termination (Exhibit 2). 7. The plaintiff was responsible for providing evaluations to employees under her supervision. She did so regularly and consistently (Smith aff. 9). 8. The evaluation process consisted of a variety of steps. First, the Plaintiff would assess performance and assign a numerical rating to the employee. Those numbers would be discussed at the "calibration meeting." (Smith aff. 10) 9. Next, the immediate manager would prepare an evaluation and the information would be provided to the employee orally. A written evaluation would later be sent to the employee for signature and return (Smith aff. 11.). 10. For the particular employee in this case, the Plaintiff attended the calibration meeting by telephone (Smith aff. 12). 11. A draft of the evaluation was prepared by the Plaintiff (Smith aff. 13). 12. The oral evaluation was not given within the normal timeframe because the employee, Debbie Kiesel-Ryan, was out on disability leave. Her leave commenced in October and lasted through December 16, 2002 (Smith aff. 14). 13. Company policy prevented the Plaintiff from contacting the employee while she was 4

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out on disability leave (Smith aff.15). 14. The oral evaluation was provided at the first practical time after both Ms. KieselRyan and Plaintiff had returned from disability leave and vacation, respectively (Smith aff.16). 15. There was no misrepresentation of facts. Plaintiff kept her supervisor fully apprised of the Kiesel-Ryan evaluation and leave situation (Smith aff.17). 16. At no time did the Plaintiff's immediate supervisor express any concern about the status of the Kiesel-Ryan evaluation (Smith aff.18). 17. Plaintiff did not receive a written evaluation from her immediate supervisor for the last five years of her employment (Smith 169:1-6). 18. Another employee, a male by the name of John Eberhardt, who was at an equal level with the Plaintiff, failed to provide a large number of his supervisees with written evaluations. He remains employed with the company (Smith 174:11- 176:1).

ARGUMENT

1. Summary judgment standards Summary judgment is appropriate if the pleadings and other documents submitted before the Court show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10 Cir. 1998) (quoting Fed. R. Civ. P. 56). When considering a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party. Baptiste v.

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J.C. Penney CO., 147 F.3d 1252, 1255 (10 Cir. 1998). A fact is material if it might affect the outcome of the suit under the governing law, and a genuine issue exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Occusafe Inc., v. E G & G Rocky Flats, Inc., 54 F.3d 618, 621 (10 Cir. 1995). Cases premised on alleged violations of civil rights frequently are unsuitable for summary judgment. Courts may refuse to grant summary judgment because it is felt that a fuller record is necessary in order to be able to decide the issues. Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed 2d 196 (1971).

2. Summary Judgment is not appropriate on the Plaintiff's First and Second Claims because there are disputed and undisputed facts that indicate that the reasons proffered by the Defendant are pretextual. Defendant asserts that it is entitled to summary judgment on Plaintiff's first and second claims for relief because the Plaintiff cannot demonstrate that the reasons given by the Defendant are pretextual. For purposes of the motion the Defendant has conceded that the Plaintiff has established a prima facie case. Defendant asserts that it terminated Plaintiff because she improperly discussed age in an interview with an applicant for a position and by failing to provide a written evaluation to an employee before that employee was terminated. Plaintiff submits that the reasons provided by the Defendant are not correct and were created to mask the discriminatory intent of the Defendant.

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At a minimum, the facts concerning the circumstances of the termination are in dispute and preclude summary judgment. As to the assertion by Defendant that the Plaintiff "improperly discussed age" during an interview during a job interview is not correct at all. This allegation by Defendant involved an employee by the name of Margene Nistler. Ms. Nistler was an employee of Avaya who worked under the supervision of the Plaintiff (Smith 80: 3-23). When a particular position opened up in Plaintiff's supervisory area, the Plaintiff contacted Ms. Nistler and suggested that she apply for the position (Smith 81: 15-18). Ms. Nistler and the Plaintiff discussed the position and conducted an interview (Smith 181:25182:5). Weeks after the conversation, the Plaintiff telephoned Ms. Nistler, at the suggestion of another employee, because Ms. Nistler had been sick (Smith 82: 18-22). The conversation was personal in nature, was after hours and was not considered an interview (Smith 86: 9-16). Conversations of a personal nature were common among the employees (Smith 84:16-85:12). The defendant has failed to provide any information or policy that indicates that employees may not have a personal conversation about personal issues. It should also be noted that the Defendant failed to address this issue with the United States Equal Employment Opportunity Commission when it discussed the alleged basis for Plaintiff's termination (Exhibit 2). The issue of failing to provide a written evaluation to an employee before her termination is also improperly addressed in the motion. Again, at a minimum, the facts are in dispute as to what happened and the company's reaction to it. 7

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The plaintiff was responsible for providing evaluations to employees under her supervision. She did so regularly and consistently (Smith aff. 9). The evaluation process consisted of a variety of steps. First the Plaintiff would assess performance and assign a rating number to the employee. Those numbers would be discussed at the "calibration meeting." (Smith aff.10) Next, the immediate manager would prepare an evaluation and the information would be provided to the employee orally. A written evaluation would be sent to the employee for signature and return (Smith aff.11). For the particular employee in this case, the Plaintiff attended the calibration meeting by telephone (Smith aff.12). A draft of the evaluation was prepared by the Plaintiff (Smith aff.13). The oral evaluation was not given within the normal timeframe because the employee, Debbie Kiesel-Ryan, was out on disability leave. Her leave commenced in October and lasted through December 16, 2002.(Smith aff.14) Company policy prevented the Plaintiff from contacting the employee while she was out on disability leave (Smith aff.15). The oral evaluation was provided at the first practical time after both Ms. Kiesel-Ryan and Plaintiff had returned from disability leave and vacation, respectively (Smith aff.16). There was no misrepresentation of facts. Plaintiff kept her supervisor fully apprised of the Kiesel-Ryan evaluation and leave situation (Smith aff.17). At no time did the Plaintiff's immediate supervisor express any concern about the status 8

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of the Kiesel-Ryan evaluation (Smith aff.18). Additionally, it should be noted that Plaintiff did not receive a written evaluation from her immediate supervisor for the last five years of her employment (Smith aff.19; Smith 169:16). Another employee, a male by the name of John Eberhardt who was at an equal level with the Plaintiff, failed to provide his supervisees with written evaluations. He remains employed with the company (Smith 174:11- 176:1). These facts clearly demonstrate an indication that the company placed little or no emphasis on the creation of the written final evaluation component of the process and that it was mere pretext to terminate Plaintiff. Plaintiff, besides being able to provide material evidence that the allegations made against her are not true, she has provided relevant material evidence that supports her claim that she experienced discriminatory treatment. The Plaintiff has provided evidence that her supervisor treated her differently than male employees. First, the Eberhardt situation discussed above. A male employee remains an employee despite the fact that he failed to provide evaluations to numerous employees. Plaintiff is terminated based on false allegations of failing to give one evaluation to one employee. Second, Plaintiff has provided evidence that her supervisor treated her differently from male employees. The supervisor consistently discussed her "boys," giving them accolades for their performance and rarely, if ever doing the same for Plaintiff even though she regularly outperformed her male colleagues (Smith 117:11-121:10).

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Third, her supervisor did not regularly communicate with the Plaintiff and expressed unhappiness about having to communicate with Plaintiff (Smith 187:11-20).

3. Defendant is not entitled to summary judgment on Plaintiff's Third Claim for Relief. The defendant urges that Plaintiff cannot establish a prima facie case for retaliation. Again, the Defendant ignores material evidence that is either disputed or undisputed that supports the Plaintiff's contention. First, there is evidence that the employee in question, Debbie Kiesel-Ryan, is disabled. The Plaintiff discussed what she knew of the disabilities in her deposition (Smith 87:19-25). Those disabilities included nerve damage that made it difficult for her to walk. It is also clear that the Defendant knew of the disabilities because the Avaya nursing staff communicated with the Plaintiff about the disabilities and possible accommodations (Smith 126:15-25; see also Exhibit 4). This evidence made it clear that Ms. Kiesel-Ryan had a disability, was considered to have a disability and had a record of having a disability. In addition to this, the Defendant intentionally misrepresented to the EEOC that the employee did not have a disability (Exhibit 2, page 5 of 10, first and second full paragraphs). Ms. Kiesel-Ryan was on leave for her disabilities from October 9 to December 16, 2002 (Smith aff.14). Plaintiff believed that the Defendant company wanted to terminate Ms. Kiesel-Ryan and she acted as an advocate for the employee during the calibration meeting (Smith 128:1-6).

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Plaintiff's supervisor discussed Ms. Kiesel-Ryan's health problems/disabilities at the calibration meeting (Smith 127:5-15). The Defendant directed Plaintiff to rate Ms. Kiesel-Ryan despite the fact that she had not been under the supervision of Plaintiff for a long enough time. This demand was a violation of company policy which requires an employee to be under supervision for three months before a rating can take place (Smith 129:2-10). The Plaintiff rated the employee and was told to downgrade the evaluation to a level that would cause her termination (Smith 124:5-22). Plaintiff resisted this request, indicating her concerns about the fairness of the evaluation process. She was instructed to proceed with the downgraded evaluation. Plaintiff did what she was told (Smith aff.12). When the Plaintiff expressed her concern about how the downgrading would affect Ms. Kiesel-Ryan's job status, Plaintiff was told, "We can't worry about that now" (Smith 124: 1416). It is clear that the company was intent on terminating Ms. Kiesel-Ryan, and its managers were upset with Plaintiff for questioning their motives and the violations of company policy to achieve the company's illegal ends. The above evidence, it is submitted indicates that the Plaintiff engaged in protected activity. The evidence shows that the employee was disabled, that the company wanted to get rid of the employee, that the disabling conditions were mentioned at the evaluation meeting, that the company was violating it own policies to accomplish its goal and that the Plaintiff stuck up for the employee and attempted to get the company to treat the employee fairly. 11

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Plaintiff further submits that the evidence demonstrates that Plaintiff suffered an adverse employment action subsequent to her activities in attempting to protect the disabled employee. She was placed under investigation in anticipation of termination of employment at the time the disabled employee was let go. One of the alleged bases for termination related directly to the evaluation process that ended shortly before the termination. Plaintiff's termination could not take place before that of the disabled employee or it would give disabled employee clearer grounds to challenge the inappropriate actions of management. This coupled with the fact that the alleged reasons for termination are not supportable by the facts produced make it clear, or at least materially disputed, that there were ulterior motives and that the reasons given by Defendant are pretext. The above information, it is urged creates, at a minimum, disputed issues of fact that relate to the issue of a causal connection.

4. Plaintiff wishes to dismiss the claims related to at-will employment, the covenant of good faith and fair dealing and public policy.

CONCLUSION Ms. Smith respectfully requests this Honorable Court to deny Defendant's Motion for Summary judgment. DATED this 27th day of June, 2005. GEORGE C. PRICE. Attorney for Plaintiff

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s/ George c. Price___________ 900 Logan Street Denver, CO 80203 (303) 861-5500 (303) 484-2421 fax [email protected] CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Response to Motion for Summary Judgment was duly served electronically this 27th day of June, 2005 and addressed as follows: Patrick Miller Sherman and Howard LLC 633 17th Street Denver, CO 80202 s/ George C. Price___________

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