Free Reply - District Court of Colorado - Colorado

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

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Filed 06/19/2006

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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 REPLY IN SUPPORT OF OBJECTIONS TO PLAINTIFF'S EXHIBITS

COMES NOW Red Roof Inns, Inc., by and through its attorneys, Frank D. Sledge and Lance E. Shurtleff, and respectfully submits its Reply in Support of Objections to Plaintiff's Exhibits. In support thereof, defendant states as follows: A. Exclusion of 4, 23 and 40 is Proper. While Exhibits 4, 23 and 40 were submitted to Ms. Lyons in Defendant's Exhibit List, they were submitted to Ms. Lyons as a matter of courtesy. Red Roof did not stipulate to the admissibility of these Exhibits. The documents included in Defendant's Exhibit List were disclosed to Ms. Lyons in Defendant's Rule 26 Initial Disclosures and Supplemental Disclosures, However, Ms. Lyons indicated that she did not have all of the documents listed. When Red Roof provided its exhibits to Ms. Lyons, her complete employment file and the complete file received from the Colorado Civil Rights Division were submitted. It is very likely that Red Roof Inns will trim down its Exhibit List as trial approaches, due to the normal time constraints. The fact

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that Red Roof Inns has provided plaintiff with the documents does not change the fact that the documents cannot be authenticated, are irrelevant and are impermissible hearsay. B. Ms. Lyons has not demonstrated that any of the exhibits objected to are admissible. 1. Exhibits 17 and 18.

In her Response, Ms. Lyons does not rebut Red Roof's contention that Exhibits 17 and 18 are hearsay and does not establish how these documents will be authenticated. Instead, Ms. Lyons argues that Exhibits 17 and 18 should be admitted because they demonstrate her involvement in a separate case against Red Roof Inns. Again, these documents are not relevant because they have nothing to do with Ms. Lyons' claims. In no way do these documents tend to prove or disprove that Ms. Lyons was treated differently due to her gender. If Ms. Lyons was able to pursue a retaliation claim, Red Roof would concede the relevance of the documents. However, the upcoming trial will decide her gender discrimination claim. Harley Lyons never alleged he was treated wrongfully because of his gender; therefore, these documents would only tend to mislead the jury by inserting evidence that Ms. Lyons was fired for assisting in a separate lawsuit. 2. Exhibit 21.

Ms. Lyons is correct in that Red Roof believed Exhibit 21 was filled in by an unknown person. Ms. Lyons has indicated that she, in fact, completed this room rack. If Ms. Lyons is able to properly authenticate the document by providing reliable evidenced that she did complete Exhibit 21, the objection to this exhibit will be withdrawn.

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3.

Exhibit 23.

Exhibit 23 is hearsay. It was completed by a police officer who will not be testifying to its contents. Ms. Lyons does not dispute this fact. Ms. Lyons instead argues that this exhibit shows motive on the part of Harley Lyons to try to get Ms. Lyons in trouble at work. The motive of Harley Lyons is irrelevant. Ms. Lyons has not provided any evidence, nor does she allege, that this exhibit tends to show that Red Roof threatened and terminated her because of her gender. This is yet another attempt by plaintiff to try her dismissed retaliation claims to the jury. 4. Exhibit 24.

Whether or not this item was disclosed to Ms. Lyons during discovery does not change the fact that the document was written by an unknown party. Mr. Shah is not testifying in this case, and an unknown party drafted this document. Therefore, in addition to being irrelevant, the document is inadmissible hearsay. If Mr. DeVilbiss is able to authenticate this document, Red Roof will likely withdraw its objections based upon hearsay and F.R.E. 901. However, Red Roof does not stipulate to the relevance of this discharge report, since plaintiff has not offered any evidence demonstrating why a discharge report for a male employee tends to prove or disprove her allegations that she was terminated because of her gender. 5. Exhibit 27.

Exhibit 27 has nothing to do with falsification of room rack reports. Whether or not a hearing occurred has no effect on Ms. Lyons' ability to question Red Roof about falsification of a room rack report. This exhibit is irrelevant and does not tend to prove or disprove gender discrimination by Mr. DeVilbiss or Red Roof. There is little doubt that Ms. Lyons will offer 3

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testimony about her room rack report, and this document adds nothing to this testimony. The fact that an insurance benefit hearing was held will not assist the jury in any way and will only further confuse the issue of being decided. 6. Exhibit 38.

Harley Lyons is unable to authenticate the document and Ms. Lyons has not provided any Sprint employee to authenticate this document. Additionally, plaintiff's assertion that the phone log will show she followed Red Roof Inns Non-Discrimination Polices and Procedures and therefore demonstrate Red Roof's gender discrimination is misplaced. To succeed, Ms. Lyons must prove that Red Roof demoted then terminated her because she is a woman. What actions Ms. Lyons supposedly took following the termination are irrelevant. This document cannot add or detract from plaintiff's assertions, and whether or not she made phone calls to Red Roof following her termination does not tend to prove or disprove that she was discriminated against during the time she was employed at Red Roof. 7. Exhibit 40.

Ms. Lyons has never alleged that Red Roof Inn terminated her because she suffered a traumatic experience. Ms. Lyons' only claim is that she was terminated because of her gender. The fact that she suffered a traumatic experience has nothing to do with her claims against Red Roof and is another attempt to cloud the waters in hopes of showing that Mr. DeVilbiss was simply a bad person and she should recover based upon that fact. Ms. Lyons cannot recover from Red Roof simply because Mr. DeVilbiss was a "mean man." She must show he treated her differently because she is a woman. Regardless of the fact that Ms. Lyons is attempting to use

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inadmissible hearsay as evidence, the document does nothing to prove or disprove Ms. Lyons allegations and is irrelevant and inadmissible. 8. Exhibit 43.

Ms. Lyons has done nothing to rebut the fact that the tape of "Joe" is not admissible. Again, defendant does not know who Joe is and there is no way to test the truthfulness of the statements on the tape. Ms. Lyons cannot rely on her own self-serving statements to authenticate the tape and has not provided "Joe" to authenticate the tape. Therefore, it is inadmissible. Dated this 19th 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 19, 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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