Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-00623-WYD-PAC

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Filed 06/21/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-00623-WYD-PAC EVA LYONS, Plaintiff, v. RED ROOF INNS, INC., Defendant.

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO UPHOLD THE APPEAL'S COURT RULING FOR FURTHER PROCEEDINGS ON PLAINTIFF'S WRONGFUL TERMINATION CLAIM

COMES NOW Red Roof Inns, Inc., by and through its attorneys, Frank D. Sledge and Lance E. Shurtleff, and in response to Plaintiff's Motion to Uphold the Appeal's Court Ruling for Further Proceedings on Plaintiff's Wrongful Termination Claim, states as follows: I. SUMMARY OF ARGUMENT

The sole issue which remains in this case is Ms. Lyons' claim that she was wrongfully terminated due to gender discrimination. The May 12, 2005 Appellate Order and Judgment does not direct this Court to try state law wrongful termination claims. Ms. Lyons' Motion to Uphold Appeal is without merit and should be denied.

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II.

ARGUMENT

It appears that Ms. Lyons is once again arguing that the 10th Circuit Court of Appeals has ordered that her state law wrongful termination claims be tried. Ms. Lyons' argument is without merit. Ms. Lyons brought three causes of action in her Title VII Complaint: 1. I, Eva Lyons, allege that Red Roof Inns, Inc. by or through its agents or employees, wrongfully discharged me from the position of senior front desk clerk, for which I was otherwise qualified with intent to discriminate because of my race/color (caucasian/white). *** 2. I, Eva Lyons, allege that Red Roof Inns, Inc. by or through its agents or employees, wrongfully discharged me from the position of senior front desk clerk, for which I was otherwise qualified with intent to discriminate because of my sex (female). *** 3. I, Eva Lyons, allege that Red Roof Inns, Inc. by or through its agents or employees, wrongfully discharged me from the position of senior front desk clerk, for which I was otherwise qualified with intent to discriminate because of retaliation.

(See, Plaintiff's Complaint, pp. 3-5.) These are the only claims which were addressed in the May 12, 2005 Judgment and Order. (See, Order and Judgment, No. 04-1360, attached as Exhibit A.) Ms. Lyons is mistaken when she states that the "Court of Appeals for the 10th Circuit Reversed and Remanded for Further Proceedings, plaintiff's Wrongful Termination Claim." (Plaintiff's Motion to Uphold the Appeal's Court Ruling, ¶ 2). The Court of Appeals for the 10th Circuit reversed only this Court's grant of summary judgment in favor of Red Roof Inns on Ms. Lyons' gender discrimination claim. (See, Exhibit A, p. 10.) No other holdings of this

Court were reversed by the 10th Circuit, and no other claims exist in this case. 2

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Also, Ms. Lyons's reliance on the language of FN 8 of Exhibit A is misplaced. FN 8 provides that: In her opening brief, Lyons claims that the district court erred because it `did not address [her] wrongful termination claim.' [T]o the extent that Lyons is referring to a state-law claim for wrongful termination, this argument is without merit, as Lyons' complaint does not contain any state-law claims. [M]oreover, the district court did address her claim that she was terminated in violation of Title VII. (Exhibit A, at p. 18.) This footnote does not indicate that Ms. Lyons is able to assert state law claims for wrongful termination. It simply explains that Ms. Lyons' wrongful termination claim based upon gender discrimination was remanded and indicates that this Court could not address a state wrongful termination claim because Ms. Lyons' complaint did not allege state law violations in her initial complaint. Ms. Lyons is correct that this district court has not allowed plaintiff to pursue her state law claims for breach of contract and/or employment policy, but she is mistaken when stating that this ruling is contrary to the holding of Exhibit A. Ms. Lyons's breach of contract claim failed because it was untimely. (See, Order Affirming and Adopting Recommendation of US Magistrate Judge, dated April 19, 2006, at p. 3.) This court's denial of Ms. Lyons' attempt to assert untimely state law claims is entirely consistent with Exhibit A, which holds that the sole claim which Ms. Lyons is able to pursue is her wrongful termination claim based upon gender discrimination. Neither FN 8 nor any other portion of Exhibit A supports Ms. Lyons' argument that the 10th Circuit has endorsed her attempts to assert state law wrongful termination claims.

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Case 1:03-cv-00623-WYD-PAC

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III.

CONCLUSION

This Court's denial of Ms. Lyons' attempt to assert a state law claim for breach of contract and/or employment policy is consistent with the Order and Judgment entered on May 12, 2005, and Ms. Lyons' motion should be denied. WHEREFORE, defendant Red Roof Inns, Inc. respectfully requests that this Court deny Ms. Lyons' Motion to Uphold the Appeal's Court Ruling for Further Proceedings on Plaintiff's Wrongful Termination Claim. DATED this 21st day of June, 2006.

Respectfully submitted,

s/ Lance E. Shurtleff Frank D. Sledge Lance E. Shurtleff Attorneys for Defendant WHITE AND STEELE, P.C. 950 17th Street, 21st Floor Denver, CO 80202-2804 Phone: (303) 296-2828 Fax: (303) 296-3131 Email: [email protected] Email: [email protected]

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on June 21, 2006, a true and correct copy of the foregoing was electronically filed via CM/ECF, and that a true and correct copy was mailed to the following: Eva Lyons P.O. Box 5712 Colorado Springs, CO 80931

s/ Charlene Falk For WHITE AND STEELE, P.C. 950 17th Street, 21st Floor Denver, CO 80202-2804 Phone: (303) 296-2828 Fax: (303) 296-3131 Email: [email protected]

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