Free Proposed Pretrial Order - District Court of Colorado - Colorado

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

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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. _____________________________________________________________________ SUPPLEMENTAL FINAL PRETRIAL ORDER _____________________________________________________________________ I. DATE AND APPEARANCE OF COUNSEL

The final pretrial conference in the above case was held on April 11, 2006. Appearing for the parties were Sander Karp for Plaintiff; Steven J. Dawes for Defendant Steve Barwick, and Paul Collins for Defendant Aspen/Pitkin County Housing Authority (hereinafter "Authority"). II. JURISDICTION Jurisdiction is admitted. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the subject matter of the state law claims pursuant to 28 U.S.C. § 1367(a).

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III. CLAIMS AND DEFENSES A. Claims of Plaintiff:

Plaintiff was employed by Defendant Housing Authority from July 2000 until wrongfully terminated on June 16, 2003 in writing by Defendant Barwick, Aspen City Manager. At all times Plaintiff was employed by the Housing Authority as its Assistant Director and worked pursuant to a five year term employment contract. Plaintiff protested the termination of her employment noting that she had a contract of employment for a specific term, five years. The job description, and oral representation consistent with this, relied upon by Ms. Giannola when she left her previous employment to accept the position with the Housing Authority, states the following: This is a five-year position with renewal beyond the five-year period dependent upon the housing long range plan. Full time position with complete City of Aspen benefits package. Exempt employee. The five year term was also discussed by representatives of Defendant Authority before and during Ms. Giannola's employment. Plaintiff brings the following claims: (1) 42 U.S.C. §1983 against Defendants for terminating Plaintiff's employment; (2) breach of the employment contract against Defendant Housing Authority; (3) promissory estoppel against Defendant Housing Authority; and (4) breach of the duty of good faith and fair dealing against Defendant Housing Authority. The claim brought under 42 U.S.C. '1983 against Defendant Steve Barwick is brought against him in his official capacity only. 2

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B.

Defenses of the Defendant Authority:

The Defendant Aspen/Pitkin County Housing Authority admits that Ms. Giannola was hired to serve as Assistant Director of Aspen/Pitkin County Housing Authority. However per the IGA, the Authority asserts that she was an employee of the City of Aspen. The Authority further asserts that Ms. Giannola was an at will employee per the personnel Policies and Procedures manual, and city guidelines. The Defendant asserts that Plaintiff was subject to all procedures and policies of the City of Aspen Personnel Policies & Procedures. The Defendant Aspen/Pitkin County Housing Authority denies the remaining allegations in the Plaintiff's Complaint. The Defendant Aspen/Pitkin County Housing Authority asserts the following Affirmative Defenses: 1. 2. Plaintiff's claims are barred by the Doctrine of Accord and Satisfaction. Plaintiff's damages, if any, are the proximate result of acts or omissions,

negligent or otherwise, of third persons over whom defendant exercised no control and for whose acts or omissions Defendant is not responsible. 3. Plaintiff's recovery of damages, if any, must be reduced by the amount

received from collateral sources, C.R.S. § 13-21-111.6 4. This Defendant is a governmental entity and as such is entitled to the

protections of the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et.seq. The allegations of Plaintiff's Complaint do not fall within the waived areas of immunity, and as such, Plaintiff's Complaint should be dismissed in total. 3

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5.

Although Defendant expressly denies any wrong doing in this matter.

Plaintiff is hereby notified that the judgment liability of this Defendant, if any, is limited to the degree of negligence or fault attributable pursuant to C.R.S. § 13-21-111.5. 6. Plaintiff consented to the actions of this Defendant which form the basis

for the allegations of the Complaint herein. Plaintiff, therefore, is barred from recovering damages as a result thereof. 7. The allegations forming the basis of this Complaint were performed with

the full knowledge, consent and acquiescence of Plaintiff and/or Plaintiff's agents and Plaintiff is estopped from requesting the relief asserted herein 8. The injuries and damages, if any, sustained by the Plaintiff are barred by

his failure to give notice as required by the Colorado Governmental Immunity Act. 9. The Plaintiff has failed to mitigate her damages, if any, as required by law

and is therefore barred from recovery against this Defendant. 10. At all times relevant hereto, this Defendant has acted in good faith and

pursuant to the laws of the State of Colorado is therefore immune from damages. 11. The allegations complained of by Plaintiff in the Complaint were not in

privity and Plaintiff is barred from recovery herein. 12. There was no contract between Plaintiff and this Defendant Regarding the

terms of employment and therefore there is not cause of action for violation of any terms of employment or for any claims arising out of the Plaintiff's loss of employment. 13. This Defendant had no duty or obligation to the Plaintiff under the

circumstances forming the basis for the Complaint and no other duty or obligation on

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this Defendant exists as a matter of law. 14. To the extent that the conduct alleged against this Defendant involved

discretionary rather than non-discretionary acts or omissions, this Defendant is officially immune from any liability. 15. Although this Defendant specifically denies the allegations of the

Complaint, the Defendant specifically asserts the defense of privilege. 16. By her actions, Plaintiff consented to and ratified any of the acts of the

acts complained of. 17. Plaintiff's Complaint fails to state compliance with the statutory conditions

precedent and, therefore, Plaintiff's claims are barred. 18. C. Plaintiff's claims are barred by the statute of frauds, C.R.S. §38-10-112. Claims and Defenses of the Defendant Barwick:

Defendant Steve Barwick denies that Plaintiff had any contract of employment for a term of five years. Rather, Plaintiff's employment was at-will. Defendant denies any liability to Plaintiff. As affirmative defenses, Defendant asserts the following: 1. Plaintiff's Complaint fails to state claims upon which relief can be granted

against this Defendant. 2. 3. 13-21-111.6. 4. 5. Plaintiff has failed to mitigate reasonably her alleged damages, if any. Plaintiff's claims are barred by the statute of frauds, § 38-10-112, C.R.S. Plaintiff's claims are barred by the doctrines of waiver and estoppel. Plaintiff's claims and damages, any, are subject to C.R.S. §§ 13-21-111.5,

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6. 7.

Plaintiff's claims are barred by failure of consideration. Plaintiff's claims and damages, if any, were proximately caused by the

improper acts or omissions of others over whom Defendants had no control nor right of control. 8. Defendant is entitled to attorney fees as provided by 42 U.S.C. § 1988. IV. STIPULATIONS 1. Defendant Barwick is the City Manager of the City of Aspen and is sued in

his official capacity only. V. PENDING MOTIONS 1. Judgment. 2. 3. Judgment. 4. 5. 6. Defendant Barwick's Motion for Summary Judgment re statute of frauds. Defendant APCHA's Motion for Leave to Amend Answer. Plaintiff's Motion to Strike Defendants' Witness Endorsement. VI. WITNESSES A. Non-Expert Witnesses Plaintiff's Witnesses Attached Exhibit 1 Defendant Authority's Witnesses Defendant APCHA's Motion for Summary Judgment re statute of frauds. Defendant Barwick's Motion for Leave to File Motion for Summary Defendant APCHA's Motion for Leave to File Motion for Summary

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Attached Exhibit 2 Defendant Barwick's Witnesses Attached Exhibit 3 B. Expert Witnesses: There are no experts in this case. VII. A. Plaintiff's Exhibits: Attached as Exhibit 4. B. Defendant Authority's Exhibits: Attached Exhibit 5 C. Defendant Barwick's Exhibits: Attached Exhibit 6. 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. VIII. DISCOVERY Discovery has been completed. IX. SPECIAL ISSUES Plaintiff objects to the listing of Hillary Smith as a witness for the Defendants upon the grounds that she was not properly disclosed by the Defendants at any time. Defendants disagree and have responded to Plaintiff's Motion, which is pending before the Court. 7 EXHIBITS

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Plaintiff also asserts that the Tenth Circuit decided, as a matter of law, that the City of Aspen Personnel Policies and Procedures signed by Plaintiff do not supercede any employment contract between Plaintiff and Defendant Housing Authority. Tenth Circuit Order and Judgment at 9-10. Accordingly, Defendants are precluded from

relying on the Policies and Procedures as a defense to Plaintiff's claims. Defendant Barwick disagrees with Plaintiff's characterization of the Tenth Circuit's Mandate. The Defendant's position is that the Tenth Circuit found that disputed issues of material fact exist which preclude entry of summary judgment and that the factual issues should be determined by the fact finder. All factual and legal issues regarding the claims and defenses made by the parties are still pending. Defendant Aspen/Pitkin County Housing Authority also disagrees with Plaintiff's characterization of the Tenth Circuit's Mandate. It is the Authority's position that the Tenth Circuit found that disputed issues of material fact exist which preclude entry of summary judgment and that the factual issues should be determined by the fact finder. All factual and legal issues regarding the claims and defenses made by the parties are still pending. Plaintiff asserts that the Tenth Circuit also decided the following, as a matter of law: Authority also argues that Ms. Giannola has sued the wrong party in this action, based on the contention that the City of Aspen and not the Authority was her employer. We agree with the magistrate judge that this argument is unpersuasive. Utilizing either the integrated enterprise test or the joint-employer test it is clear that the Authority and the City shared the authority to hire and fire employees and that both exercised significant control over Ms. Giannola's employment.

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Tenth Circuit Order and Judgment at FN.2 (internal citations omitted). Accordingly, the Authority is precluded from arguing that it was not Plaintiff's employer. Further, Plaintiff objects to several affirmative defenses raised by Defendants. Defendants have waived and are time-barred from asserting affirmative defenses which could have been decided as a matter of law and were not raised by Defendants prior to the summary judgment deadline. These include the Authority's affirmative defenses arising out of the Colorado Governmental Immunity Act and statute of frauds, as well as Barwick's assertion of the statute of frauds. In addition, Plaintiff has not asserted any common law negligence claims. Therefore, the Authority's defenses of lack of duty, causation and contributory negligence are inapplicable and should be dismissed. Similarly, Defendants' reliance on Colorado's comparative fault statute and collateral source rule should be dismissed. Defendant Barwick stands on the affirmative defenses listed above and specifically asserts that he plead the statute of frauds in his Answer and preserved this defense in the September 20, 2004 Final Pretrial Order (page 5, paragraph III.C, subparagraph 5), so the defense has not been waived. See the February 7, 2006 Tenth Circuit Court of Appeals Order and Judgment, slip. Op., page 7, fn. 3 ("We also note that while Mr. Barwick did raise a statute of frauds defense in his Answer . . ."). Therefore, Plaintiff's objection is not well taken. X. SETTLEMENT a. A settlement conference was scheduled before Magistrate Judge Schlatter

on May 11, 2004. On May 4, 2004, Defendants filed an Unopposed Motion to Vacate

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the Settlement Conference. Defendants Motion was granted, and the settlement conference was vacated. b. Another settlement conference has been set for May 5, 2006 before

Magistrate Judge Craig B. Shaffer. XI. OFFER OF JUDGMENT

Counsel and any pro se party acknowledge familiarity with the provisions 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. XII. 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. pleading will be deemed merged herein. The

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. XIII. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. 2. 3. Trial is scheduled to commence on August 14, 2006 before a jury. The parties anticipate a four (4) day trial will be necessary. The situs of the trial is Denver.

DATED this 7th day of April, 2006.

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BY THE COURT:

________________________________ MICHAEL E. HEGARTY United States Magistrate Judge APPROVED: LEAVENWORTH & KARP, P.C. TREECE, ALFREY, MUSAT & BOSWORTH, P.C.

s/ Anna S. Itenberg Anna S. Itenberg (31334) 201 14th Street, Suite 200 PO Drawer 2030 Glenwood Springs, CO 81602 (970) 945-2261 Attorneys for Plaintiff

s/ Laura Childs Paul Collins (15866) Laura Childs (34561) 999 18th Street Suite 1600 Denver, CO 80202 303-292-2700 Attorneys for Defendant Aspen/Pitkin County Housing Authority

LIGHT HARRINGTON & DAWES, P.C.

s/ Steven J. Dawes Steven Dawes (13193) 1512 Larimer Street, Suite 550 Denver, CO 80202 (303) 298-1601 Attorney for Defendant Steve Barwick

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