Free Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:03-cv-01305-MEH-CBS

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Filed 03/13/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-1305-MEH-CBS VICTORIA GIANNOLA Plaintiff, v. ASPEN/PITKIN COUNTY HOUSING AUTHORITY and STEVE BARWICK, Defendants. ______________________________________________________________________________ DEFENDANT STEVE BARWICK'S MOTION FOR SUMMARY JUDGMENT ON THE STATUTE OF FRAUDS ______________________________________________________________________________ Defendant Steve Barwick, by his undersigned attorney, pursuant to Rule 56 of the Federal Rules of Civil Procedure, respectfully submits his Motion for Summary Judgment on the Statute of Frauds. As grounds therefor, Defendant states as follows. 1. Plaintiff Victoria Giannola was hired as the Assistant Director of the Aspen/Pitkin

County Housing Authority ("APCHA") on or about July 5, 2000. She was laid off from her position as the Assistant Director of APCHA, effective June 27, 2003. She was notified in writing of her layoff on June 13, 2003 by Steve Barwick, the City Manager of the City of Aspen, who gave her a Memorandum dated June 13, 2003. 2. According to Ms. Giannola, during the interview process, she was told that the

offer of employment was for a "five-year contract of employment."

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3.

Plaintiff claims that shortly before she accepted employment with APCHA she

received a package of materials, which included a job description. The job description has a number of sections, including a section entitled "Compensation." The paragraph entitled "Compensation" states the following. Compensation: This is a five-year position with renewal beyond the fiveyear period dependent on the housing long-range plan. Full-time position with complete City of Aspen benefits package. Exempt employee. 4. Ms. Giannola contends that this language, as well as subsequent oral assurances,

created an enforceable contract for a five-year term of employment. She contends that she relied upon this language to leave her prior employment and accept the position at APCHA. 5. Ms. Giannola also contends that during performance reviews her supervisor, Mary

Roberts, confirmed the five-year employment commitment of APCHA. 6. Under the Colorado Statute of Frauds, § 38-10-112, C.R.S. (1)(a), C.R.S., an

agreement that by its terms cannot be performed within one year is invalid or void unless the agreement or some note or memorandum thereof is in writing and signed by the party to be charged. Presuming, without admitting, that Plaintiff was offered a five-year contract of employment, Plaintiff's claim against this Defendant is barred by the Colorado Statute of Frauds because (1) a contract of employment for a term of no less than five years excludes, by its very terms, the possibility of performance within one year; and (2) there is no document or memorandum in writing and signed by Ms. Giannola, APCHA, the City of Aspen, Colorado, or this Defendant, Steve Barwick, memorializing such an agreement. 7. The only claim against Defendant Steve Barwick is a claim under 42 U.S.C.

§1983. In order to sustain the §1983 claim, Plaintiff has to show she has a constitutionally

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protected property interest, by way of an employment contract. In this case, Plaintiff claims that she entered into an oral contract of employment for a fixed term of five years. Accordingly, the contract should be in writing, and because it is not, the Statute of Frauds renders void her claim that she had an oral contract of employment. An oral contract that is void under the Statute of Frauds cannot support a constitutional claim. 8. Contemporaneously herewith, Defendant submits his Memorandum Brief in

Support of his Motion for Summary Judgment on the Statute of Frauds. WHEREFORE, Defendant Steve Barwick respectfully requests that summary judgment be entered in his favor and that this Court dismiss, with prejudice, Plaintiff's claim under 42 U.S.C. § 1983.

Respectfully submitted, s/ Steven J. Dawes ___________________________________ Steven J. Dawes Light, Harrington & Dawes, P.C. 1512 Larimer St., Suite 300 Denver, CO 80202 Phone: 303-298-1601 Fax: 303-298-1627 E-mail: [email protected] Attorney for Defendant Steve Barwick

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CERTIFICATE OF SERVICE The undersigned herein certifies that on this 13th day of March 2006 a true and complete copy of the foregoing DEFENDANT STEVE BARWICK'S MOTION FOR SUMMARY JUDGMENT ON THE STATUTE OF FRAUDS was electronically filed using the CM/ECF system, which will send notification of such filing to the following e-mail addresses of the parties Sander N. Karp, Esq. [email protected] Paul E. Collins, Esq. [email protected]

s/ Steven J. Dawes ___________________________________ Steven J. Dawes Light, Harrington & Dawes, P.C. 1512 Larimer St., Suite 300 Denver, CO 80202 Phone: 303-298-1601 Fax: 303-298-1627 E-mail: [email protected] Attorney for Defendant Steve Barwick

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