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.03-CV-02073-WDM-PAC ROBERTA PULSE, TONYA HOUSE, Plaintiffs, v. THE LARRY H. MILLER GROUP, Defendant _____________________________________________________________________ SECOND REVISED FINAL PRETRIAL ORDER ­ PHASE 2 OF BIFURCATED TRIAL _____________________________________________________________________

1. DATE AND APPEARANCES Date of Conference: A Pretrial Conference was held Friday, May 26, 2006, at 11.00 a.m. before the Honorable Magistrate Judge Coan. A final Trial Preparation

Conference is scheduled for January 9, 2007, at 8:30 a.m. before Honorable Judge Miller. Counsel for Plaintiffs: Kimberlie K. Ryan, The Ryan Law Firm LLC, Mail: 283 Columbine Street #157, Denver, Colorado 80206; Telephone: (303) 355-0639; E-mail: [email protected]; Whitney C. Traylor, W.C. Traylor & Associates, 700 E. 24th Ave., #1, Denver, CO 80205; Office: (303) [email protected]. Counsel for Defendant: Raymond W. Martin and Kimberly A. Smiley, Wheeler Trigg Kennedy LLP, 1801 California Street, Suite 3600, Denver, Colorado 80202; 321-1862; Fax: (303) 837-1214; E-mail:

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Telephone: (303) 244-1800; Facsimile: (303) 244-1879; E-mail: [email protected] and [email protected]. 2. JURISDICTION PLAINTIFFS' STATEMENT OF JURISDICTION: Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § sections 451, 1331, 1337, 13433, and 1345, and this action is authorized pursuant to sec. 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. sec 2000ee5(f)(1)("Title VII"), Section 102 of the Civil Rights Act of 1991, 42 U.S.C. sec 1991A. This Court has jurisdiction over Defendant in its trade name and its real legal name. Under the law of the case, the jury verdict confirms subject matter jurisdiction. Any defense claim as to personal jurisdiction has been waived. DEFENDANT'S STATEMENT
OF

JURISDICTION. As a result of the jury verdict in this

case purporting to hold that The Larry H. Miller Group is the d/b/a for Landcar Management, Ltd. ("Landcar") and that Landcar operated as an integrated enterprise with the Larry H. Miller Corp. - Denver, Landcar is participating in this Pretrial Order and in the trial of this case. Landcar is participating based on the Court's determination that it is the law of the case that the Larry H. Miller Group is the d/b/a for Landcar. It continues to be Landcar's position that The Larry H. Miller Group was not Landcar's trade name and that Landcar did not operate as an integrated enterprise with Larry H. Miller Corp. ­ Denver. By participating in the pretrial matters and trial of this case, Landcar does not consent to personal jurisdiction and does not waive its objections to

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the Court exercising jurisdiction over Landcar or any other objections to the Jury Verdict, or pre-trial proceedings in this case. The Court does not have subject matter jurisdiction under Title VII of The Civil Rights Act of 1694, as amended, 42 U.S.C. § 2000e et seq. or The Civil Rights Act of 1991, 42 U.S.C. § 1991 A. Plaintiffs have admitted that they were employed by the Larry H. Miller Corporation ­ Denver dba Larry Miller Toyota. (see Plaintiffs Response to Defendants Statement of Undisputed Facts [Docket No. 51, p. 1] in response to the Larry H. Miller Group's Motion to Dismiss/Summary Judgment [Docket No. 46, p. 4]. Plaintiffs have not named their employer, Larry H. Miller Corporation ­ Denver, as a defendant in this action. Defendant has never employed either Plaintiff. As a result, the court does not have subject matter jurisdiction under Title VII. Plaintiffs have withdrawn their defamation claims. Plaintiff House has withdrawn her pay disparity claim claim. 3. CLAIMS AND DEFENSES A. Plaintiffs: Title VII sexual harassment/hostile work environment and

retaliation. Plaintiff Pulse worked as a Controller, and Plaintiff House worked as a Finance Director successfully and without discipline until they reported to Defendant a hostile work environment by Defendant's General Manager. After their reports, Defendant subjected them to a campaign of retaliation and further harassment and sex discrimination, including harassment by their manager Mr. Bob Cockerham and by Mr. Tony Schnurr. Although Plaintiffs reported this harassment and sex discrimination to Defendant, Defendant conducted no investigation and took no remedial acion. 3

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Instead, Defendant terminated Ms. Pulse's employment based on pretextual reasons and constructively discharged Ms. House. Defendant's conduct caused both Ms. House and Ms. Pulse damages, and was taken in reckless disregard of their federally protected rights. Plaintiffs seek all monetary damages available, not limited to but including lost wages and benefits, non-pecuniary damages, consequential damages, punitive damages, costs, fees, interest, and equitable relief, and all other relief to which they are entitled under the law. B. Defendant:

Defendant asserts that Plaintiffs' employer had legitimate good faith reasons for all actions that Plaintiffs challenge in their Complaint. Plaintiffs were not subjected to a hostile work environment, did not engage in protected activity, and were not the victims of retaliation. Plaintiffs' claims for alleged sexual harassment and hostile work environment are time-barred, as Plaintiffs failed to file charges with the EEOC within three hundred days of the alleged conduct on which the claims are based. The only individual Plaintiffs claim engaged in alleged sexual harassment was Mark Dundon. Mr. Dundon left

Denver Toyota in early January, 2000. Plaintiffs did not file charges with the EEOC until August 22, 2002. As a result, these claims are time-barred. Defendant denies that a hostile work environment existed during the time that Plaintiffs were employed at Denver Toyota. During the relevant time period, Denver Toyota had specific policies and procedures in place for reporting alleged misconduct. Plaintiffs did not report alleged sexual harassment or hostile work environment. When 4

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Plaintiffs did complain about Mr. Dundon's management style (as opposed to sexual harassment), prompt remedial action was taken. Mr. Dundon was immediately asked to return to the dealership in Idaho where he was General Manager and did not perform any further supervisory responsibilities at Denver Toyota. At that point, Mr. Dundon had no further interaction with, or authority over, Plaintiffs. Ms. Pulse's employment was terminated in 2001 for good cause. Ms. Pulse failed to perform, or performed negligently, numerous accounting duties for which she was responsible. Examples include, but are not limited to, failing to accurately and timely perform bank reconciliations; failing to pay bills in a timely manner; failing to perform reconciliation of car inventory; directing payment of commissions and bonuses without proper backup documentation; failing to accurately account for oil and gas charges; failing to submit proper documentation for insurance contracts; failing to pay long-term disability insurance premiums; and failing to timely account for NSF checks. Ms. Pulse also "self-transferred" to the Used Car Superstore in direct violation of a management directive. Ms. House was not constructively discharged. Ms. House voluntarily chose to quit her employment at Denver Toyota. Defendant denies that Plaintiffs were retaliated against in any manner. To the contrary, there were legitimate business reasons for all decisions made affecting Plaintiffs' employment. Assuming for the sake of argument that Plaintiffs established an entitlement to recovery, Plaintiffs have not made reasonable efforts to mitigate their damages. This 5

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includes, but is not limited to, the fact that Plaintiffs participated in misconduct in their subsequent employment and partial ownership of Kelly's International Auto Sales. This misconduct resulted in the sales license for Kelly's being revoked by the Colorado Motor Vehicle Dealers Board and a fine of $460,000 being imposed. Also, because Plaintiffs voluntarily chose to become involved in a self-employment enterprise following their employment at Denver Toyota, they should not be entitled to recover damages after the date that they began these self-employment activities. If Plaintiffs were entitled to damages, damages for wage loss, employment benefits, front pay and all related damages would end in 2003 when Denver Toyota and the Used Car Supermarket were sold. Because Plaintiffs' employment would have

ended at that time, they cannot recover any damages after the date of the sale. Defendant asserts additional defenses including that Plaintiffs have failed to make reasonable efforts to mitigate their damages; Plaintiffs claims for damages are barred or reduced by the doctrine of after acquired evidence; and Defendant is entitled to an offset from any liability to Ms. House in the amount of $33,212.85. On October 24, 2005, the Court entered the Final Pretrial Order ­ Second Amended [Docket No. 147] ("Second Amended PTO")]. Since the Parties prepared and tendered that Order, this case has changed in fundamental ways. These changes

include the fact that Plaintiffs raised for the first time their theory that Landcar did business in Colorado under the trade name The Larry H. Miller Group and that Landcar (allegedly) operated as an integrated enterprise with Plaintiffs' real employer, Larry H. Miller Corporation ­ Denver. Plaintiffs raised these new theories even though Landcar 6

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was not a party to the case and had never been served with a summons or complaint. See generally Motion to Dismiss and Reply in Support of Landcar's Motion to Dismiss [Docket Nos. 298, 313.] Defendant has consistently contended throughout the pretrial proceedings that it was not Plaintiffs' employer. This objection was preserved in the Second Amended PTO, in which Defendant noted: "The Larry H. Miller Group," has never employed the Plaintiffs or any one else. Therefore, the defendant is not an "employer" within the definition of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and the Court has no subject matter jurisdiction under 42 U.S.C. § 2000e. Second Amended PTO, p. 2. .... Defendant believes that Title VII claims and defenses do not apply to this case because there is no employment relationship between the Plaintiffs and Defendant. Id., p. 3. 4. STIPULATIONS

1. Plaintiff Roberta Pulse and Plaintiff Tonya House are females. 2. On June 29, 1999, Ms. Roberta Pulse was hired as the Controller/Office Manager at Denver Toyota and The Used Car Supermarket. 7

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3. Plaintiff Tonya House was employed as Finance and Insurance Director at Denver Toyota and The Used Car Supermarket in March 1999. 4. In December 1999, Mark Dundon was transferred to Denver Toyota to assume the duties of General Manager on an acting basis. 5. Roberta Pulse's employment was terminated on June 8, 2001. 6. Tonya House's employment ended on June 11, 2001. 7. The Handbook contains a policy prohibiting retaliation. "It is the policy of this company not to retaliate against an employee regarding a charge of employment discrimination or harassment. Protection against employer retaliation applies not only to the complaining employee, but to all other employees who might participate in any investigation. This protection applies regardless of the validity of the complaining employee's charge." 8. The Handbook provides that "[t]his company prohibits all forms of discrimination or harassment against any individual based on gender . . . in any employment condition. Violations of this policy will be treated as disciplinary matters. `Harassment' includes, but is not limited to, inappropriate graphic, verbal, or physical conduct relating to the categories listed above." 9. It further provides that "it is the policy of this company to prohibit the sexual harassment of any employee or client, male or female, by another employee or client. 8

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Prohibited actions include . . . creating an intimidating, hostile, or offensive working environment by such conduct." 5. PENDING MOTIONS Defendant's Objections to July 18, 2006 Order Entered by Magistrate Judge Coan, which was filed on July 28, 2006. Both parties intend to re-file motions in limine and jury instructions no later than December 22, 2006. The Parties propose that responses to motions in limine and objections to jury instructions shall be filed no later than January 8, 2007.

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6. PLAINTIFFS' WITNESS LIST Judge Walker D. Miller CASE NUMBER 03-CV-02073 WDM-PAC : Date June 19, 2006 Estimated Time for Examination Plaintiffs' Will Call Witnesses ­ Name and Summary of Testimony Each of these witnesses also may be called as rebuttal witnesses 1. Plaintiff Roberta Pulse, PO Box 1326, Columbus, MT, 2 hours 2 hours Direct Cross

59019, Telephone through her counsel at (303) 355-0639. Title VII discrimination, hostile work environment, retaliation,

emotional distress, and damages, Defendant's policies and procedures, all information raised in her deposition and allegations contained in the complaint, rebuttal as necessary. 2. Plaintiff's husband, Mike Pulse, PO Box 1326, Columbus, 30 minutes MT, 59019, Telephone through counsel at (303) 355-0639. Emotional distress and mitigation, rebuttal as necessary. 3. Plaintiff Tonya House, PO Box 327, Columbus, MT, 59019; 2 hours (406) 321-0528. Title VII discrimination, hostile work 2 hours 30 minutes

environment, retaliation, emotional distress, and damages, Defendant's policies and procedures, all information raised in 10

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her deposition and allegations contained in the complaint, rebuttal as necessary. 4. Plaintiff's husband, Wes House, PO Box 327, Columbus, 30 minutes MT, 59019; (406) 321-0528. damages, necessary. 5. Ms. Nichole (St. John.) Henderson. 256 Field St., Craig, CO 15 minutes 81625, 970-824-2519. Hostile work environment, sex 15 minutes Emotional distress, other 15 minutes

mitigation, subsequent employment, rebuttal as

discrimination, retaliation, Defendant's policies and practices, jurisdictional facts and corporate structure; Plaintiffs' work performance, emotional distress, Defendant's failure to respond to complaints, facts in her Affidavit, rebuttal as necessary. 6. Ms. Kelly Eyen: (303) 444-5647; retaliation; mitigation; 45 minutes 30 minutes

emotional distress, rebuttal as necessary.

Plaintiffs' May Call Witnesses ­ Name and Summary of Testimony

Direct

Cross

1. Mr. Richard Newendyke. 595 Silver Oak Grove, Colorado 1 hour Springs, CO 303-810-3879. retaliation, sex discrimination, Hostile work environment, Defendant's policies and

1 hour

practices; damages; mitigation; Plaintiffs' work performance,

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Defendant's failure to respond to complaints; emotional distress; facts in his Affidavit. 2. Ms. Connie Coyne. 341 S. Swadley, Lakewood, CO 80228; 15 minutes 303-709-8364. Hostile work environment, sex discrimination, retaliation, Defendant's policies and practices, jurisdictional facts and corporate structure; Plaintiffs' work performance, Defendant's failure to respond to complaints, facts in her Affidavit, damages. 3. Mr. Richard Dickert. Adverse witness. Sexual harassment, 30 minutes Defendant's knowledge of complaints, damages, Defendant's response, if any; and other issues raised in his deposition. 4. Mr. Jeff Jensen. Jensen & Keddington, 4511 S. 600 East, 1 hour Salt Lake City, UT, 84107, (801) 262-4554. Adverse witness. Defendant's claim of alleged financial mismanagement, 1 hour 30 minutes 15 minutes

damages, audits, any issues raised in his deposition. 5. Mr. Bob Cockerham. Adverse witness. Plaintiffs complaints, 30 minutes investigations, hostile work environment, policies and practices, damages, and his disciplinary record with Defendant, and any issues raised in his deposition. 6. Tony Schnurr. Adverse witness. Hostile work environment, 1 hour policies and practices, steps taken or not taken to protect 1 hour 1 hour

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federally protected rights of Plaintiffs; Defendant's financial procedures and instructions, disciplinary record with Defendant, damages, decision to terminate Ms. Pulse's employment and circumstances surrounding the termination and alleged

justifications, and issues raised in his deposition. 7. Moneca Alvera. Adverse witness. Investigation; similarly 30 minutes situated employees, damages, and issues raised in her deposition. 8. Pat Kroneberger. Adverse witness. Defendant's policies 30 minutes and practices; complaints; retaliation, damages and issues in his deposition. 9. Carolyn Ashburn. Adverse witness. Defendant's policies and 30 minutes practices; investigations; Defendant's knowledge of Plaintiffs' complaints; Dundun's promotion/transfer; any issues raised in her deposition, damages. 10. Mike Kujawa. sex 303-748-3137 hostile work environment; 30 minutes Defendant's policies and 30 minutes 45 minutes 30 minutes 1 1/2 hours

retaliation,

discrimination;

practices; Plaintiffs' work performance, damages, any facts in his Affidavit. 11. Ms. Christine Bollig. P.O. Box 845, Georgetown, CO 15 minutes 5 minutes

80444 (720) 560-2117. Hostile work environment, retaliation,

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sex discrimination, Defendant's policies and practices, Plaintiffs' work performance, Defendant's failure to respond to complaints; emotional distress; facts in her Affidavit. 12. David Austin, 2041 Southwest Birdsdale, Gresham, 1 hour (801) 563-4205. Adverse witness. Computer 1 hour

Oregon,

conversion, any issues in his deposition. 13. Ms. Audra Holzer. PO Box 2403, Dillon, CO 80435, 970- 15 minutes 262-9488 Hostile work environment, retaliation, sex 15 minutes

discrimination, Defendant's policies and practices, Plaintiffs' work performance, Defendant's failure to respond to complaints; emotional distress; facts in her Affidavit. 14. Mr. Lee Ledger, 4341 Dixon Drive, Westminster, CO 303- 15 minutes 487-4946. Hostile work environment, retaliation, sex 30 minutes

discrimination, Defendant's policies and practices; Plaintiffs' work performance, Defendant's failure to respond to complaints, any facts set forth in his Affidavit. 15. Sandi Shaner. 2969 G West 81st Ave., Westminster, CO 15 minutes 80031 (303) 657-8615. Hostile work environment, retaliation, sex discrimination, Defendant's policies and practices,

jurisdictional facts and corporate structure; Plaintiffs' work performance, Defendant's failure to respond to complaints;

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emotional distress; facts in her Affidavit. Any witnesses on Defendant's witness list. Any witness necessary for impeachment or rebuttal. Any or all witnesses listed by Defendant.

(2)

Witnesses where testimony is expected to be presented by a means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony:

Deposition (video and/or written transcript): Tony Schnurr, Richard Dickert, Bob Cockerham, Moneca Alvera, Carolyn Ashburn, Pat Kroneberger, Jeff Jensen, David Austin. b. Plaintiff: Expert Witnesses (1) (3) Witnesses who will be present at trial: None. Witnesses who may be present at trial: None.

DEFENDANT'S WITNESS LIST A. Defendant's Witness List Will Call Witnesses Direct Cross 1 Hour

1. Tony Schnurr. 9350 S. 150 East, Suite 1000, Sandy, UT 1 ½ Hours 84070(801) 563-4118. Mr. Schnurr will testify concerning all issues relating to Plaintiffs' Complaint, including, alleged 15

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Will Call Witnesses complaints made by Plaintiffs and actions taken in response; the temporary assignment of Mark Dundon to Denver Toyota; Mr. Dundon's performance at other dealerships;

Direct

Cross

communications with Plaintiffs; policies and procedures at Denver Toyota; the accounting problems identified at Denver Toyota in 2001 and efforts to resolve these problems; mini audits conducted at Denver Toyota in 2000; financial

performance of Denver Toyota and the Used Car Supermarket in 1999; Plaintiffs' work performance; Ms. Houses's resignation from employment; the decision to terminate Ms. Pulse's employment the sale of Denver Toyota and the Used Car Supermarket; Plaintiffs' damage claims; and other issues addressed in his deposition or trial testimony. 2. Moneca Alvera. 10905 S. Auto Mall Dr. Sandy, UT 84070, 1 ½ Hours (801) 553-5931. Ms. Alvera will testify regarding the 1 ½ Hours

investigation she performed in 2001 regarding the financial statements and accounting problems at Denver Toyota and efforts to resolve these problems; Ms. Pulse's job

responsibilities and performance; the treatment of female employees (if deemed to be relevant); the circumstances

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Will Call Witnesses surrounding Ms. Pulse's termination; Mr. Cockerham's

Direct

Cross

management style and treatment of employees; Plaintiffs' damage claims; and issues addressed in her deposition. 3. Mr. Richard Dickert. 9350 S. 150 East, Suite 1000, Sandy, 1 Hour UT 84070, (801) 563-4105. Mr. Dickert will testify regarding policies and procedures at Denver Toyota; accounting issues and audits performed at Denver Toyota and the Used Car Supermarket in 2000 and 2001; mini audits conducted at Denver Toyota in 2000; the accounting problems discovered at Denver Toyota in 2001 and efforts to resolve these problems; conversations with Ms. Pulse; and issues addressed in his 1 Hour

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Will Call Witnesses deposition or trial testimony.

Direct

Cross

4. Brad Hershelman. 2465 48th Court, Boulder, CO 80301, 30 Minutes (303) 443-3250. Mr. Hershelman will testify regarding bank

30 minutesa

reconciliations he performed at Denver Toyota in 2001; policies and procedures regarding bank reconciliations and other accounting functions; communications with Plaintiffs; and the accounting problems identified in Denver Toyota in 2001.

Defendant's May Call Witnesses

Direct

Cross 1 Hour

5. Mr. Bob Cockerham. 5901 San Mateo NE, Albuquerque, 1 Hour NM 87109, (505) 880-0777. Mr. Cockerham will testify

concerning all issues relating to Plaintiffs' complaints regarding Mr. Cockerham; Plaintiffs' job performance; communications with Plaintiffs, policies and procedures at Denver Toyota; the accounting problems identified at Denver Toyota in 2001 and efforts to resolve these problems; Plaintiffs separation from employment with Denver Toyota; Plaintiffs' damage claims; and

Prior to the June 2006 trial setting, Defendant filed a motion to amend the Pretrial Order to add a number of newly identified witnesses, which was granted by the Court. Plaintiffs do not waive their objections to the testimony of these witnesses.

a

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Defendant's May Call Witnesses issues addressed in his deposition.

Direct

Cross

6. Mark Dundon. (208) 869-1163. Mr. Dundon may testify 1 Hour concerning all issues relating to Plaintiffs' allegations against him; policies and practices at Denver Toyota; his employment record with Defendant; lay-offs he conducted in December 1999; financial performance of Denver Toyota and the Used Car Supermarket in 1999; communications with Plaintiffs; and Plaintiffs' work performance.

1 Hour

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Defendant's May Call Witnesses

Direct

Cross 1 Hour

7. Carolyn Ashburn. Defendant's former Human Resources 45 Minutes Director. 9350 S. 150 East, Suite 1000, Sandy, UT 81070,

(801) 563-4116. Ms. Ashburn may testify as to the Defendant's policies and practices at Denver Toyota; communications with Plaintiffs; the treatment of female employees (if deemed to be relevant); the response to Plaintiffs' alleged complaints; the circumstances surrounding Ms. Pulse's termination and other issues addressed in her deposition. 8. Mr. Richard Nelson. 9350 S. 150 East, Suite 1000, Sandy, 15 Minutes UT 84070(801) 553-5200. Mr. Nelson may testify concerning Ms. House's selection to attend the Miller Business Academy in 2001. 9. Bryant Henry. 9350 S. 150 East, Suite 1000, Sandy, UT 10 Minutes 84070(801) 553-5200. Mr. Henry may testify concerning Ms. House's selection to attend the Miller Business Academy in 2001. 10. Mr. Jeff Jensen. Jensen & Keddington, 4511 S. 600 East, 45 Minutes Salt Lake City, UT 84107, (801) 262-4554. Mr. Jensen may testify concerning financial mismanagement by Roberta Pulse and affect on Denver Toyota; audits performed by his company 30 Minutes 30 Minutes 30 Minutes

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Defendant's May Call Witnesses at Denver Toyota; Ms. Pulse's behavior in the work place; and issues addressed in his deposition or trial testimony.

Direct

Cross

11. Mr. Ted Jenkins. Jensen & Keddington, 4511 S. 600 East, 1 Hour Salt Lake City, UT 84107, (801) 262-4554. Mr. Jenkins may testify regarding financial mismanagement by Roberta Pulse; audits performed at Denver Toyota; and the accounting problems identified at Denver Toyota in 2001. 12. Pat Kroneberger. 9350 S. 150 East, Suite 1000, Sandy, 15 Minutes UT 84070, (801) 563-4119. concerning policies with and Mr. Kroneberger may testify practices at Denver Plaintiff Toyota; House's

30 minutes

30 Minutes

communications

Plaintiff

House;

performance and alleged complaints; Plaintiff House's selection for the Miller Business Academy; and issues addressed in his deposition. 13. David Austin. 9350 S. 150 East, Suite 1000, Sandy, UT 45 Minutes 84070, (801) 563-4205. Mr. Austin may testify as to the 30 minutes

computer conversions at Denver Toyota and other Larry Miller dealerships; his interactions with Ms. Pulse and Ms. House; problems identified with the accounting records at Denver Toyota and efforts to resolve those problems; and issues raised

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Defendant's May Call Witnesses in his deposition.

Direct

Cross

14. Clark Whitworth. 9350 S. 150 East, Suite 1000, Sandy, UT 15 Minutes 84070. May testify regarding communications with Plaintiffs;

30 Minutes

policies and procedures at Denver Toyota; and accounting problems at Denver Toyota and efforts to resolve these problems. 15. Mike Pulse, as an adverse witness. Mr. Pulse may testify 15 Minutes regarding Ms. Pulse's activities as owner and office manager of Kelly's International and Plaintiffs' failure to mitigate damages and issues addressed in his deposition. 16. Jim Gustafson: 13045 W. 30th Dr. Golden, CO 80401, 1 Hour (303) 278-7277. Mr. Gustafson may testify regarding audits 1 Hour 30 Minutes

performed at Denver Toyota and the Used Car Supermarket in 2000 and 2001; communications with Plaintiffs; accounting problems uncovered at Denver Toyota during 2000 and 2001 and efforts to resolve these problems. 17. Karen Shield: 9350 S. 150 East, Suite 1000, Sandy, UT 15 Minutes 81070. Ms. Shield may testify regarding the conversion of the Reynolds and Reynolds system to the ADP system; training offered regarding the conversion; communications with Plaintiffs 15 minutes

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Defendant's May Call Witnesses regarding same; bank reconciliations from 2001; information relating to payroll for Denver Toyota and the Used Car Supermarket; and communications with Plaintiffs.

Direct

Cross

18. Sharon Leonard. 8730 County Road 50, Keenesburg, CO 30 Minutes 80643. Ms. Leonard may testify regarding Plaintiffs' job

15 minutes

performance and accounting problems identified in 2001 at Denver Toyota. 19. Penny Ivansic: 222 Auto Dr., Boise, ID 83709, (208) 947- 15 Minutes 6545. Ms. Ivancic may testify regarding Mr. Dundon's 15 minutes

management style and his treatment of employees in the workplace. 20. Vicky MacDonald. 4912 Pueblo Drive, La Porte, Colorado 30 Minutes 80535, (970) 222-2195. Ms. MacDonald may testify regarding accounting issues uncovered during 2001 at Denver Toyota; duties and responsibilities of office managers at Denver Toyota; Mr. Cockerham's management style and his treatment of employees in the workplace; and the treatment of female employees (if deemed to be relevant). 21. Dan Ware. 9350 S. 150 East, Suite 1000, Sandy, UT 15 Minutes 30 Minutes 15 minutes

81070.

If Connie Coyne is permitted to testified about

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Defendant's May Call Witnesses allegations against Mr. Ware, Mr. Ware will provide testimony refuting those allegations

Direct

Cross

22. Casandra Schmidt. 7541 60th Avenue NW, Oronocko, MN 30 Minutes 55960, (507) 292-9431. Ms. Schmidt was an employee of ADP during the 2001 conversion. Ms. Schmidt may testify regarding advance notification to Ms. Pulse concerning the ADP conversion; accounting problems identified during the March 2001 conversion and efforts to resolve these problems. 23. Linda Huck. Address Unknown. Ms. Huck was an 10 Minutes

15 minutes

15 minutes

employee of ADP during the 2001 conversion. Ms. Huck may testify regarding advance notification to Ms. Pulse concerning the ADP conversion in 2001. 24. Chris Rouze. Ms. Rouze is a representative of the 30 Minutes She may have 15 minutes

Colorado Motor Vehicle Dealer Board.

information regarding the conduct that led to the suspension of the license for Kelly's International Auto Sales and the imposition of a $460,000 fine in 2003 and information regarding the Complaint relating to license no. 3477 (Denver Toyota) resulting in the August 20, 2001 Stipulation and Order. 25. Roberta Pulse, adverse, for cross-examination on all 30 Minutes 1 Hour

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Defendant's May Call Witnesses claims. 26. Tonya House, adverse, for cross-examination on all claims.

Direct

Cross

30 Minutes

1 Hour

27. Nicole Henderson. Ms. Henderson may testify regarding 30 Minutes statements she made to Plaintiffs; her working experience at Larry Miller Toyota ­ Denver; her termination of employment with Larry Miller Toyota ­ Denver. 28. Lynda Jeppesen. Ms. Jeppesen is the Director of Human 45 Minutes Resources at The Larry H. Miller Management Company. She may testify regarding Defendant's policies and procedures; and the treatment of female employees (if deemed to be relevant). 29. JoAnn Spano. Ms. Spano may testify regarding issues with 15 minutes accounting at Larry Miller Toyota-Denver. 30. Amy Belyea. Ms. Belyea may testify regarding 30 minutes 15 minutes 15 minutes 15 minutes

conversations with Plaintiff Pulse regarding Ms. Belyea's transfer to Larry Miller Toyota ­ Denver, Ms. Belyea's letter to HR and Ms. Pulse's handling thereof; Mr. Cockerham's management style; issues with accounting at Larry Miller Toyota ­ Denver. 31. Mindy Allhand. Ms. Allhand may testify regarding Plaintiffs' 15 minutes job performance and accounting problems identified in 2001 at 15 minutes

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Defendant's May Call Witnesses Denver Toyota.

Direct

Cross

32. Dan Curtis, Landcar Agency, Inc., 9350 South 150 East, 30 minutes Suite 1000, Sandy, Utah 84070, (800) 733-7339. Mr. Curtis may testify regarding the contracts between Landcar Agency Inc. and Larry Miller Toyota ­ Denver; Ms. Pulse's mishandling of same, and his participation in efforts to resolve the resulting problems. 33. Mr. Reginald Lang, 1218 Roseberry Manor Drive, Spring, 15 minutes Texas 77379-3676, (281) 225-8556. Mr. Lang may testify

15 minutes

15 minutes

regarding Plaintiff Tonya House's compensation during the time he worked at Denver Toyota. 34. Any witnesses on Plaintiffs' witness list. 35. Any witness necessary for impeachment or rebuttal. Witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony: None Defendant: Expert Witnesses None.

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7. EXHIBITS List Plaintiff's Exhibits by Number (1, 2, 3, etc.) and Defendant's Exhibits by capital A followed by number (A1, A2, A3, etc.) See D.C.COLO.LCivR 56.1C.1. PLAINTIFFS' EXHIBIT LIST FORM Judge Walker D. Miller PLAINTIFFS' EXHIBIT LIST CASE NUMBER 03-cv-02073 WDM-PAC PAGE 1

CASE CAPTION: Pulse v. Larry Miller Group, et al. List Plaintiff's Lists as numbers. Designation 1. Description Finance Director Pay Plan, dated 6/30/99 2. 3. Plaintiffs' Tax returns Tonya House ­ Pay documents 4. Damages Calculation Summary 5. Tonya House Personnel File 6. Roberta Pulse Personnel File 7. Damages Notebook 27 Stip Offer Stip Stip In Out Rule Res.

Comment

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8. 9.

Deposition Exhibits Training documents and notes produced by Defendant

10.

Demonstrative Exhibits

Any or all exhibits listed by Defendant; Any or all documents necessary for rebuttal or impeachment. c. Copies of exhibits were ordered to be provided to opposing counsel no later than May 30, 2006. The Fed. R. Civ. P. 26(a)(3) objections shall be filed with the clerk and served by hand delivery or facsimile no later than June 6, 2006 at Noon.

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DEFENDANT'S EXHIBIT LIST FORM Judge Walker D. Miller CASE NUMBER 03-WM-2073 (PAC) CASE CAPTION: Pulse v. Larry Miller Group, et al. Designation A1 Description Denver Toyota Sexual Harassment Policy A2 W-2 statements issued to Tonya House A3 W-2 statement issued to James R. Vanya A4 Handbook and Acknowledgement Form signed by Tonya House A5 April 13, 2001 check from Denver Toyota payable to Tonya House for $33,212.85 A6 April 13, 2001 check request regarding July Stip Stip Stip Stip. Offer Stip. Stip. In Out Rul. Res. Comment

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Designation

Description 1999 ­ March 2000 adjustment in bonus for Tonya House

Offer

Stip.

In

Out

Rul. Res.

Comment

A7

Worksheet showing calculation for Tonya House bonus adjustment of $33,212.85

A8

June 11, 2001 Employee Separation Notice signed by Tonya House

A9

EEOC Dismissal & Notice of Rights for Tonya House

Stip

A10

Mark Dundon's January 10, 2000, letter to Tony Schnurr

A11

Mark Dundon's August 11, 2005, notes from telephone conference with Tonya House

A12

W-2 statements issued to

Stip.

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Designation

Description Roberta Pulse

Offer

Stip.

In

Out

Rul. Res.

Comment

A13

Handbook and Acknowledgement Form signed by Roberta Pulse

Stip.

A14

Roberta Pulse Pay Plan dated June 28, 1999

Stip

A15

May 2000 mini audit by Richard Dickert and Jim Gustafson

Stip.

A16

August 2000 mini audit by Richard Dickert and Jim Gustafson

Stip.

A17

"Denver Toyota Issues June 4 ­ June 12, 2001" (DXMA 1)

A18

"Larry Miller Toyota ­ Denver Summary of Accounting Issues" (DXMA 4)

A19

"December Financial

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Designation

Description Statement ­ 2001 DEN/DUC Combined" (DXMA 5)

Offer

Stip.

In

Out

Rul. Res.

Comment

A20

"Thirteenth month 104th store" (DXMA 6)

A21

"Thirteenth month Denver Toyota" (DXMA 7)

A22

IRS documents regarding fines for Denver Toyota payroll taxes

A23

IRS documents reflecting fines for Denver Toyota W-2 Submission

A24

1999, 2000 and 2001 Denver Toyota Financial Statements

A25

ADP Check Lists signed by Roberta Pulse, dated March 23, 2001

A26

Documents relating to

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Designation

Description Advertising Expenses that were not accrued in 2000 and 2001

Offer

Stip.

In

Out

Rul. Res.

Comment

A27

Cash Sheets (July 2000, Sept. 2000, October 2000, November 2000, February 2001 and May 2001)

A28

February 5, 2002 Memo from Jeppesen to Jewell/McDonald cc: Schnurr regarding disability premiums

A29

August 30, 1991 SelfEvaluation by Roberta Pulse

A30

September 11, 1991 Performance Review of Roberta Pulse by Darrell Wells

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Designation A31

Description Ms. Pulse's August 17, 1995 letter of resignation from Boulder Toyota

Offer

Stip.

In

Out

Rul. Res.

Comment

A32

Accounting and Internal Control Review Program form

A33

February 14, 1994 letter of resignation by Robert A. Gordanier

A34

June 8, 1994, letter from E. Roy Lampinen to Roberta (Pulse) Handy

A35

Larry H. Miller Dealerships Automotive Group Employee Handbook

A36

Play Plan for Tonya House

A37

December Financial Statement ­ 2001

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Designation

Description DEN/DUC Combined (DXMA 9)

Offer

Stip.

In

Out

Rul. Res.

Comment

A38 A39 A40

2000 year end audit notes 2001 year end audit notes Plaintiffs' summary of contemporaneous notes.

A41

Wheels publication dated June 15, 2004 regarding Kelly's International

A42

Order of Summary Suspension, Notice of Hearing, and Notice of Charges in the Matter of Kelly's International Auto Sales, Inc.

A43

Order of Revocation and Notice of Default in the Matter of Kelly's International

A44

Complaint from Heritage

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Designation

Description Bank v. Roberta J. Pulse and Tonya D. House, et. al.

Offer

Stip.

In

Out

Rul. Res.

Comment

A45

Computer printout listing employees of Larry H. Miller Corporation ­ Denver and dates of employment

A46

April 20, 1999 memo from C. Ashburn to Office Managers regarding " Forms" (DXCA 2)

A47

EEOC Dismissal & Notice of Rights for Roberta Pulse

A48

Employee Separation Notice for Roberta Pulse dated June 8, 2001

A49

Complaints filed in connection with Kelly's

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Designation

Description International

Offer

Stip.

In

Out

Rul. Res.

Comment

A50

Documents relating to Complaint of Terry Kerns filed with the Colorado Motor Vehicle Dealer Board relating to August 20, 2001 Stipulation and Order for license number 3477

A51

Richard Newendyke's December 29, 2003 letter to Department of Revenue

A52

January 2001 bank reconciliation documents

A53

February 2001 bank reconciliation documents

A54

March 2001 bank reconciliation documents

A55

April 2001 bank

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Designation

Description reconciliation documents

Offer

Stip.

In

Out

Rul. Res.

Comment

A56

May 2001 bank reconciliation documents

A57

June 2001 bank reconciliation documents

A58

Demonstrative exhibit ­ timeline

A59

Summary exhibit of post termination earnings for Roberta Pulse

A60

Summary exhibit of post termination earnings for Tonya House

A61

Summary exhibit of employees laid off at Denver Toyota in 1999

A62

Summary exhibit of House and Vanya Compensation

A63

Pay Plan for Tonya

Stip

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Designation

Description House signed by Mike Kujawa

Offer

Stip.

In

Out

Rul. Res.

Comment

A64

Policy on Hold Checks and One Pays (LAN 1434)

A65

Fax from Ami Belyea to Linda Jeppsen forwarding letter regarding Amy Belyea signed by Roberta Pulse (LAN 1435-36)

A66

Landcar Agency, Inc. documents relating to contracts issued to Larry Miller Toyota ­ Denver. (LAI 0001 ­ 0182).

A67

Journal entries for Denver Toyota 2001 Demonstrative Exhibits Exhibits necessary for

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Designation

Description impeachment or rebuttal

Offer

Stip.

In

Out

Rul. Res.

Comment

Copies of listed exhibits were ordered to be provided to opposing counsel no later than May 30, 2006. The objections contemplated by Fed. R. Civ. P. 26(a)(3) were ordered to be filed with the clerk and served by hand delivery or facsimile no later than June 6, 2006, at noon. Counsel intend to meet and confer again regarding exhibits to determine whether there are any additional documents that can be stipulated to by the parties. The parties propose that they shall re-file their objections pursuant to Fed. R. Civ. P. 26(a)(3) no later than January 8, 2007. 8. DISCOVERY Defendant's Statement. On July 5, 2006, the Court granted Defendant's Motion to Continue Trial and Reopen Discovery (Doc. 404) and referred the matter to Judge Patricia Coan, who issued an Order on July 18, 2006. Defendant has filed its

Objections to Magistrate Coan's July 18 Order, which motion is fully briefed and pending resolution by the Court. 9. SPECIAL ISSUES Plaintiff's Statement: Tax Enhancement: Plaintiffs seek tax enhancement on lost wage and benefit damages. Plaintiffs ask the Court for guidance as to whether to propose jury instructions regarding this issue, or whether the Court would determine applicability of such enhancement in post-trial motions 40

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Bankruptcy of Plaintiff Pulse. 1. Plaintiff Roberta Pulse has filed for Chapter 7 bankruptcy in the United

States Bankruptcy Court for the District of Montana, Case No. 06-60671-7. 2. Pursuant to 11 USC 541(a) property of the bankruptcy estate includes all

potential causes of action that exist at the time petitioner files for bankruptcy, which includes Pulse/House v. The Larry H. Miller Group, 03-cv-02073, in the United States District Court for the District of Colorado. 3. By Order dated 10/25/06, the Bankruptcy Court granted Trustee Joe

Womack's application for Kimberlie K. Ryan to serve as legal counsel for the bankruptcy estate. 4. By Order dated 11/3/06, the Bankruptcy Court approved the Stipulation

between the Trustee and Roberta Pulse regarding Pulse's claimed exemption as to lost wages. As a result, both the Trustee and Roberta Pulse have an interest in this

employment discrimination lawsuit. 5. Pursuant to Fed.R.Civ.P. 25(c), governing the transfer of interest, in the case of any transfer of interest the action may be continued by the original party, unless the court upon motion directs joinder or substitution)(emphasis supplied). 6. All parties to this case have stipulated that this matter be continued by the

original parties to this action. 7. Defendant agrees to waive any subsequent legal challenge to standing or

proper parties based on the participation in this lawsuit by the Trustee. 10. SETTLEMENT 41

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a.

Counsel for the parties discussed settlement at the settlement conference

with Magistrate Judge Coan on October 4, 2004 and on May 26, 2006. b. The participants did participate in a settlement conference that involved

counsel and/or party representatives. c. date. d. e. See section (b). It appears from the discussion(s) by all counsel that there is no possibility The parties have been promptly informed of all offers of settlement to

of settlement. f. g. See section (b). Counsel for the parties considered ADR in accordance with

D.C.COLO.LCivR.16.6. Another settlement conference is not set. 11. OFFER OF JUDGMENT Counsel acknowledges familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. No offer of judgment as been made in this case. 12. EFFECT OF FINAL PRETRIAL ORDER 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 42

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Scheduling Order and previous Pretrial Orders. In the event of ambiguity in any provision of this Final Pretrial Order, references 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. The trial is to the jury. The trial is scheduled to last 7 days. The trial will be held in the United States District Court for the District of Colorado, beginning on January 22, 2007. 4. 5. Motions in limine must be filed by December 22, 2006. Responses to motions in limine must be filed by January 8, 2007.

Dated this ____ day of ________________, 2006. BY THE COURT:

_______________________________ Judge APPROVED: s/Kimberlie K Ryan Kimberlie K. Ryan The Ryan Law Firm LLC Mail: 283 Columbine, #157 Telephone: (303) 355-0639 Email: [email protected] s/Whitney C. Traylor Whitney C. Traylor W.C. Traylor & Associates 43

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700 E. 24th Ave., #1 Denver, CO 80205 Office: (303) 321-1862 Fax: (303) 837-1214 E-mail: [email protected] Attorneys for Plaintiffs

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s/Kimberly A. Smiley Raymond W. Martin Kimberly A. Smiley Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, Colorado 80202 Telephone: (303) 244-1800 Facsimile: (303) 244-1879 E-mail: [email protected] [email protected] Attorneys for Defendant

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