Free Reply to Response 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-00860-WDM-PAC ROBERT ALWARD Plaintiff, v. VAIL RESORTS, INC., a Colorado corporation; VAIL CORPORATION, INC. D/B/A/ VAIL ASSOCIATES INC., a Colorado corporation; VR HOLDINGS, INC., a Colorado corporation; and WILLIAM JENSEN, individually and in his official capacity as Senior Vice President and Chief Operating Officer of Vail Resorts, Inc. Defendants. ______________________________________________________________________________ PLAINTIFF'S REPLY TO DEFENDANTS' RESPONSE TO PLAINTIFF'S COMBINED MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPENING BRIEF ______________________________________________________________________________ Plaintiff Robert Alward, by and through his attorneys, McClain Drexler & Matthews, LLC, and pursuant to the Fed.R.Civ.P. 56 and DC.COLO.LCivR 56.1, hereby replies to Defendants' Response to Plaintiff's Combined Motion for Partial Summary Judgment and Opening Brief [Docket #221] (Defendants' Response): PRELIMINARY STATEMENT As set forth in Plaintiff's Opening Brief, the court must dismiss defendants' Counterclaim because defendants have not shown any evidence that Plaintiff breached the release. In addition, the court must grant summary judgment in plaintiff's favor and against the defendants on Plaintiff's Third Claim, because defendants have failed to rebut plaintiff's evidence that they breached the release by not considering plaintiff the same as any other applicant. Specifically, defendants: (1) applied different criteria to Plaintiff in considering whether to rehire him as a full-time ski instructor in the adult alpine program at Beaver Creek for

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the 2002-2003 ski season, and (2) Bill Jensen, who had no authority or responsibility for hiring decisions for the Beaver Creek Ski School at the time, actually made the decision not to rehire the plaintiff, thereby completely bypassing the usual chain of command. REPLY CONCERNING ADDITIONAL DISPUTED OR UNDISPUTED FACTS1 Defendants summarize the facts set forth in Defendants' Brief in Support of Their Partial Motion for Summary Judgment on Defendants' Counterclaim (for Breach of Contract) against Plaintiff. Plaintiff's response to that Brief will be filed separately. Thus, plaintiff replies only to those facts specifically set forth in Defendants' Response, and incorporates his forthcoming response to that Brief. Defendants posit eight Additional Undisputed Facts as "material" in support of their argument that Plaintiff breached the Release by bringing claims that arose before the date the release was signed. Plaintiff denies that all but one of these facts are undisputed or material. A. B. Admit, but plaintiff disputes defendants' characterization of its terms. Denied. The deposition testimony cited by the defendants does not support the

allegedly undisputed fact, and does not even relate to defendants' assertion. In fact, defendants never asked plaintiff "to identify the facts to support his national origin discrimination claim." As set forth in plaintiff's complaint, Plaintiff's claims are not based on facts or occurrences that predate the release. Rather, his national origin discrimination claim arises out of Defendants' failure to rehire him for the 2002-2003 ski season, and his observations and discussions about the disproportionately high number of foreigners defendants actually hired for the 2002-2003 ski

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Defendants' Response fails to admit or deny the undisputed facts set forth in Plaintiff's Motion, and does not present their "statement of Additional Disputed or Undisputed Material Facts" in numbered, sequential paragraphs with specific references to the record. As such, Defendants' Response does not comply with Section 6.3 of this Court's Pretrial and Trial Procedures.

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season, who were less qualified than the plaintiff. Ex. 8, Declaration of Bob Borgo, ¶¶ 8-11; Ex. 12, Declaration of Spike Kullus, ¶¶ 8-12. C. Denied. The deposition testimony cited by the defendants does not support the

allegedly undisputed fact, and does not even relate to defendants' assertion. In fact, defendants never asked plaintiff "to identify the facts to support his age discrimination claim." Defendants' citation to the record reveals that they only asked plaintiff about conversations he had during his employment with defendants. As set forth in plaintiff's complaint, Plaintiff's claims are not based on facts or occurrences that predate the release. Rather, his age discrimination claim arises out of Defendants' failure to rehire him for the 2002-2003 ski season, and his observations and discussions about the disproportionately high number of individuals under the age of 40 whom defendants actually hired for the 2002-2003 ski season and who were less qualified than the plaintiff. Ex. 8, Declaration of Bob Borgo, ¶¶ 8-11; Ex. 12, Declaration of Spike Kullus, ¶¶ 8-12. D. E. Admit, however this fact is irrelevant and immaterial. Denied. The deposition testimony cited by the defendants does not support the

allegedly undisputed fact, and does not even relate to defendants' assertion. In fact, defendants never asked plaintiff "to identify the facts to support his claim that defendants retaliated against him because of his workers' compensation claim." As set forth in plaintiff's complaint, Plaintiff's claims are not based on facts or occurrences that predate the release. Rather, his claim for workers' compensation retaliation arises out of actions taken by GE Young, Defendants' worker's compensation administrator, which occurred after he signed the release. Ex. A-2 to Defendants' Response, Alward Dep., 181:7-17 (not cited by Defendants). F. Admit, however this fact is irrelevant, immaterial, and unsupported by

defendants' citation to the record.

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G.

Admit, however this fact is irrelevant to plaintiff's claims, and immaterial.

Instead, this information was sought to rebut defendants' defenses to this action. See infra, Section I. H. Admit, however this fact is irrelevant to plaintiff's claims, and immaterial.

Instead, this information was sought to rebut defendants' defenses to this action. See infra, Section I. LEGAL ARGUMENT I. VAIL'S COUNTERCLAIM FOR BREACH OF THE RELEASE IS WITHOUT MERIT. As set forth in plaintiff's Motion, Defendants' counterclaim for breach of the release should be dismissed on summary judgment because defendants have utterly failed to establish any evidence that plaintiff breached the release. A. Alward Is Not Bringing Claims That He Waived In The Release. Defendants' entire argument hinges on their erroneous assertion that the plaintiff's claims rely on facts which arose before the date the release was signed. Notably, Defendants do not, and cannot, identify a single allegation or claim set forth in plaintiff's Complaint to support this misplaced assertion. Rather, as clearly set forth in the Complaint, plaintiff's claims in this action arose out of Defendants' failure to rehire plaintiff in 2002--long after the release was filed. Complaint ¶¶ 71130. In order to prevail on his discrimination claims, plaintiff has the burden to show that defendants' stated "legitimate non-discriminatory business reason" for failing to rehire the plaintiff is pretextual. EEOC v. Flasher, 986 F.2d 1312, 1316-17 (10th Cir. 1992). Before this action was filed, Defendants submitted their position statement to the EEOC, which clearly stated that their refusal to rehire the plaintiff was based on his alleged record as an employee. Ex. 9, letter dated October 8, 2003 from Chris Ottele (HRO) to Nilsa Gordon (EEOC), pp. 3-4. 4

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Defendants' stated reason for not rehiring plaintiff is that they did not believe Plaintiff could be a team player and "couldn't trust that [plaintiff] would reenter the organization and be a positive contributing member of the team." Defendants' Response, pp. 3-4; Ex. A-4 to Defendants' Response, 162:2-10; 161:7-19. This conclusion was based in part on plaintiff's perceived objections to the reorganization in 2001, and his decision to take the separation package instead of the demotion to Manager. Ex. 9, pp. 1-3. Thus, defendants rely on alleged facts and occurrences which predate the release as a defense to plaintiff's claims. These facts are not the basis for plaintiff's claims. In order to rebut defendants' defense, Plaintiff had an obligation to inquire during discovery concerning these alleged events, which predate the release. Defendants cannot prove that plaintiff breached the release by asking such questions during discovery. This argument is without merit, and it is all that defendants offer in support of their Counterclaim. In addition, defendants' reliance on this theory flies in the face of the law governing the enforceability and scope of a valid release. See 29 U.S.C. § 626 (f)(1)(C). Not surprisingly, defendants cite no legal support for their argument that plaintiff's signature on the release also waived his right to rebut Defendants' defenses to claims that arose after the release was signed. In short, it is a circular argument without any merit. The court must reject defendants' theory and dismiss their counterclaim, or ignore controlling precedent. B. Defendants Cannot Establish That Plaintiff Disclosed The Terms Of The Release To Robertson, Or Anyone Else. In order to prevail on their breach of contract counterclaim, defendants must show that plaintiff violated a material term of the release. Defendants cannot meet this burden. As set forth in plaintiff's Motion, the record is devoid of any evidence that plaintiff materially breached the release by disclosing its terms. Defendants ask the court to deny plaintiffs motion because Mr. Robertson's statement that he understood that plaintiff could be rehired after one year is a 5

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"disputed issue of fact whether plaintiff disclosed the terms of the Release to Robertson." Defendants' Response, p. 11. This conclusory statement, however, is not enough to defeat summary judgment. In order to defeat summary judgment, Defendants must show that there is evidence in the record which could lead a rational trier of fact to find in favor of the defendants. Defendants have not met this standard. Defendants point to no other statements by any third parties which indicate plaintiff actually disclosed the terms of the Release. In fact, they do not even make this argument in their brief in support of their own motion for summary judgment on defendants' counterclaim. See Docket #210. In response to Plaintiff's Motion, defendants also fail to show that Mr. Robertson's awareness that plaintiff could be rehired after one year is evidence of an actual material breach of the release. Mr. Robertson lives on the east end of Long Island, New York and has no connection to defendants. Defendants elected not to depose Mr. Robertson. The fact that defendants could not locate a single "unauthorized third-party" in the Vail organization or the Vail Valley to whom plaintiff disclosed any part of the Release indicates that Defendants had no evidence of such a breach when they filed their Counterclaim. Defendants' Counterclaim is frivolous and cannot survive summary judgment. Because defendants have put forth no credible evidence or rational basis for asserting that plaintiff materially breached the release, their counterclaim must be dismissed. II. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON HIS BREACH OF CONTRACT CLAIM BECAUSE THE UNDISPUTED MATERIAL FACTS ESTABLISH THAT DEFENDANTS DID NOT CONSIDER PLAINTIFF THE SAME AS ANY OTHER APPLICANT. Defendants breached Paragraph 5(e) of the Release because: (1) they deviated from the established hiring procedures when Jensen acted outside the scope of his authority and made the decision not to rehire the plaintiff; and (2) defendants applied a different set of "qualifications" 6

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to the Plaintiff. Defendants do not, and cannot, present any evidence that they considered Plaintiff's request for rehire the same as any applicant. Nor do Defendants assert that Plaintiff's request did not qualify for the "same consideration as any other applicant."2 A. It Is Undisputed That Mr. Jensen Had No Authority To Make Hiring Decisions For Beaver Creek In 2002, Yet He Made The Decision Not To Hire The Plaintiff.

Defendants do not dispute that as a result of the reorganization in 2001, the management structures for the Vail and Beaver Creek Ski Schools were separated. After 2001, Bill Jensen had no authority to make hiring decisions of ski school instructors at Beaver Creek. Ex. 11, Marsh Dep., 18:2-21; Exhibit 3, Jensen Dep., 227:16 to 228:13; Exhibit 4, Deposition of James Kercher, 148:14-22. Even before 2001, Mr. Jensen's responsibilities did not include any oversight of hiring decisions for Beaver Creek. Ex. 11, Marsh Dep., 17:7-19:12. Mr. Jensen was the COO of Vail; and John Garnsey was the COO of Beaver Creek. Ex. 11, Marsh Dep., 18:7-9. Defendants also do not dispute that Mr. Jensen made the decision not to rehire the plaintiff. See [Docket # 208], "Undisputed Fact #14" and Ex. A-1 thereto, Jensen Dep., 214:513 and 216:3-15 (cited by defendants). Defendants cannot show that Mr. Jensen made any other hiring decisions (as opposed to simply "weighing in") for the Beaver Creek ski school during the 2002-2003 ski season. See Defendants' Response, p. 5 (Response to Statement of Disputed Facts #11). Defendants mistakenly assert that plaintiff contests only the fact that Mr. Jensen had input in that process. Defendants miss the point. Rather, defendants violated their own policies and procedures when Mr. Jensen, not Jim Kercher or anyone else at Beaver Creek, actually made the

2

The semantic game defendants play in an attempt to deny plaintiff's Undisputed Fact #11 is of no consequence. The Release does not require that plaintiff follow a defined procedure or submit a written "application." It states: "employee shall be considered the same as any other applicant for any positions for which he may apply..." Ex. 1, p.3, ¶5(e).

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decision not to rehire Plaintiff, and only the Plaintiff. They do not proffer any evidence in the record which demonstrates that Plaintiff was considered the same as any applicant for the ski instructor position for the 2002-2003 ski season. Defendants incorrectly cite the testimony of Les Marsh to rebut plaintiff's evidence of defendants' breach. This evidence is not persuasive. First, plaintiff applied to be rehired with Beaver Creek, not Vail. Second, Les Marsh was no longer the HR director of Vail at the time plaintiff applied to be rehired, and was not involved in that decision. In fact, he left his employment with defendants to become Vice president of Human Resources and Risk Management for Heavenly Ski Resort in California in May 2002--before plaintiff applied to be rehired. Ex 11, Marsh Dep. 5:14- 6:1; 9:1-9. Thus, he has no knowledge of Beaver Creek's hiring processes or procedure in effect for the 2002-2003 ski season, or as they were applied to the Plaintiff's application for rehire. Even if the court accepted Mr. Marsh's testimony on this point, it does not refute plaintiff's arguments. The facts show that Bill Jensen did not simply provide input regarding whether to rehire Mr. Alward. He made the decision not to rehire the plaintiff. This fact is undisputed. It is also undisputed that Bill Jensen had no authority to make that decision. Thus, defendants cannot make a showing sufficient to establish that they considered Plaintiff' the same as any other applicant when they refused to rehire him. Accordingly, the court must grant summary judgment in favor of the plaintiff and against the defendants on plaintiff's Third Claim. A. The Undisputed Material Facts Establish That Defendants Applied Different Criteria In Considering Whether Plaintiff Was Qualified For The Position The only documents defendants produced which describes the applicable qualifications are the advertisements Vail places to find instructors, and the visa applications to request visas 8

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for foreign instructors.3 Ex. 10. These documents list the following requirements for the "Ski School Instructor--Level 3" job (for which plaintiff applied): "ISIA Certification or PSIA Level 3 Certification or equivalent with at least 2 seasons of full-time experience." Ex. 10, p.1. It is undisputed that, at the time plaintiff sought to be rehired, Defendants considered him to have all the technical qualifications necessary for the Level 3 ski instructor position. Despite these qualifications, they refused to rehire him. Instead, Defendants now assert that plaintiff lacked other "qualifications" for the position. However, Defendants have put forth no relevant evidence to establish that plaintiff failed to meet the qualifications used for any other applicant for the full-time ski instructor position at Beaver Creek for the 2002-2003 ski season. For the first time, Defendants assert in their Response that plaintiff was not qualified because his physician had not cleared him to ski between 2001 and December 2002. This fact is unsupported by the record. Plaintiff's medical records indicate only that he should not ski between May 16, 2002 and December 2002--during the off-season, and after a specific treatment. Ex. 13, Alward Dep. 273:7-274:13. However, Defendants did not refuse to rehire plaintiff based on his medical condition.4 Moreover, contrary to defendants' assertions, Plaintiff testified that Dr. Steadman did not tell him not to ski during the 2002-2003 ski season, or since, and in fact was aware that plaintiff had worked as a ski instructor for the 2001-2002 ski season. Ex. 13, Alward Dep. 250:12-254:9; 276:20-277:7. Plaintiff was hired, and worked, as a full-time ski instructor for Copper Mountain for the 2001-2002 ski seasons. Before he was hired for this position, he was required to take an examination to determine his ability to ski, which he passed. Ex.13, Alward Dep., 262:10263:18. Thus, defendants cannot plausibly dispute that Plaintiff was physically able to, and in
3

Defendants acknowledge that there is a written job description for the full-time adult alpine ski instructor position, yet they have not produced it (despite plaintiff's requests during discovery). 4 Defendants do not even argue in their Response that this information played any part in that decision.

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fact did, ski during the 2001-2003 ski seasons, and was physically able to teach skiing during the 2003-2004 season as well. Ex. 13, Alward Dep., 280:23-282:6; 282:24-288:3. In short, Defendants have produced no evidence that plaintiff was not qualified according to the criteria applied to any other applicant for the ski instructor job. The record indicates that defendants applied a different set of criteria to the plaintiff, and which has changed even during this lawsuit.5 The testimony defendants' cite in support of their assertion that were other qualifications for the position--which plaintiff lacked--is unsupported by any documentation defendants actually used in the hiring process, and therefore does not refute plaintiff's claim. Rather, this testimony is further evidence that defendants applied a different set of criteria to the plaintiff's application for rehire, and further evidence that they did not consider plaintiff the same as any other applicant for the ski instructor position during the 2002-2003 ski season, in violation of Paragraph 5(e) of the Release. Ex. 1, p. 3. Accordingly, the court should grant plaintiff's motion for summary judgment on his Third Claim. CONCLUSION For the reasons set forth above and in plaintiff's opening brief, defendants' have failed to show that there is any evidence that plaintiff breached the release, and defendants' counterclaim must be dismissed. Similarly, because the undisputed evidence shows that defendants did not consider plaintiff's application for rehire the same as any other applicant, the court must grant summary judgment in favor of the plaintiff and against the defendants on plaintiff's Third Claim.

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As set forth in their position statement to the EEOC, the decision was based on a fictitious account of Plaintiff's record as an employee. Ex. 9, pp. 3-4. Notably absent from their list of reasons is any assertion that plaintiff did not meet the qualificatins for the position of ski instructor.

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Dated this 14th day of July 2005. Respectfully submitted, McCLAIN DREXLER, LLC By: /s/ Nina H. Kazazian Nina H. Kazazian Of Counsel 1700 Lincoln Street, Suite 3850 Denver, Colorado 80203-4538 Telephone: (303) 860-8400 Email: [email protected] ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on this 14h day of July 2005, I electronically filed the foregoing PLAINTIFF'S REPLY TO DEFENDANTS' RESPONSE TO PLAINTIFF'S COMBINED MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPENING BRIEF with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the defendants addressed to the following email address: Sherri Heckel Kuhlmann Christopher Ottele Holme Roberts & Owen LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203

/s/ Nina H. Kazazian

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