Emerson v. Wembley USA Inc. Document 108: Response to Motion

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Judge Edward Nottingham Civil Action No, (3-C'V-1793-EWN-BNB PATRICIA EMERSON, Plaintiff ¥.

WEMBLEY USA INC;
WEMBLEY INC.;

ROBERT TY HOWARD in his personal capacity; and JEFFREY GOERGEN in his personal capacity, Defendants PLAINTIFFS RESPONSE TO WEMBLEY INC.'S RENEWED MOTION FOR SUMMARY JUDGMENT AND WEMBLEY USA, INC."S RENEWED MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff Patricia Emerson, through counsel Zupkus and Angell, PoC. and pursuant to F.ROCLP, 36, states (he following in support of her Response To Wembley Inc.*s Renewed Motion For Summary Judgment And Wembley USA, Inc.'s (collectively referred to as “Wembley") Renewed Motion For Partial Summary Judgment (“Wembley Brief"):

I. Introduction a. Undisputed Material Facts The following set of facts was listed in the Wembley Brief and Plaintiff aprees with each:

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I, Plaintiff agrees she was an employee of Defendant Wembley USA, Inc. (WUSA") beginning approximatcly January 1999, Deposition transeript of Pat Emerson, dated April 28, 2004, page 9, limes 8-9, attached hereto as Exhibit B-1.

2: Plaintiff agrees that WUSA is a wholly owned subsidiary of Wembley, Ime. CWINC"), Plaintiff also-agrees that the ultimate parent company of WINC is Wembley ple, a British company.

4, Plaintif! agrees she was hired as a controller in WUSA's seccounting departnent. Deposition transcript of Pat Emerson, dated April 28, 2004, page 10, lines- 17-18, Wembley Bnef Exhibit A-1.

4. Plaintiff agrees that from 1999 unnl April 2001, she reported directly to WUSA Chief Financial Officer (“C FO"), David Brents. Deposition of Pat Emersim, dated April 28, 2004, pape 10, lines 4-6, page 12, lines 1-7, pagé 13, lines 10-14, Wembley Brief Exhibit A-1, During this same period of time, the Plaintiff also reported to WUSA's President ond CEO, Skip Sherman. Deposition of Pat Emerson, dated April 28, 2004, page 10, lines 4-6, page 12, lines 1-7, page 13, lines 15-19, Wembley Brief Exhibit A-1, i

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5. Plaintiff agrees that in April of 2001, both Mr. Brents and Mr. Sherman no longer had direct reports at WUSA and ultimately separated their employment

from the company, Howard AfE #9, Wembley Brief Exhibit A-3

6, Plamtit? agrees that after Mr. Sherman and Mr, Brents left the company and Mr. Howard took over as CEO, the Plaintiff reported to Mr. Howard, Howard Ail © 4. Wembley Brief Exhibit A-3. Mr. Howard acted as the Plaintiffs supervisor until WUSA hired Defendant Goergen to serve as its CFO in Qetober 2001, Idoat 410, From October 2001, until separation of Plaintiff's employment in December 2002, Defendant Georgen was the Plaintiff's immediate supervisor, Id. at ] 10; Deposition transeript of Pat Emerson, dated

April 28, 2004, page 198, line 19, Wembley Brief Exhibit A-1.

7. The Plaintiff agrees that effective December 31, 2001, Defendant Goergen was appointed as WUSA’s CFO by its Board of Directors. Howard Aff. € 4, Wembley Bnef Exhibit A-3, In September 2003, Defendant Goergen was

appointed as WINC's CFO and treasurer. lel,

8. The Plaintiff agrees that on January 28, 2003, the Plaintiff filed a third Charge of Discrimination against WUSA with the EROC alleging continuing retaliation for her complaints of gender discrimination, See 1/24/03 EEOC

Charge, Wembley Bret Exhibit A-10. Plaintiff anaches a complete copy of

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Case 1:03-cv-01793-EWN-BNB Document108 Filed 09/12/2005 Page 4 of 39 her EEOC Complaints hereto as Exhibit B-32. The Plaintiff's statements in support of this charge were made under oath. Id.

&. The Plamtiff-agrees that on or about January 1, 1999, Mr. Brents provided the. Plaintiff with a letter that stated, in pertinent part; “In the event that the Company chooses to terminate your employment for any reason, you will be entitled to payment of one. year's full pay.” 1/9/99 Letter, Wembley Brief Exhibit A-11, 1, = The Plaintiff agrees that neither WUSA nor WINC have paid the Plaintiff SOVCRAOE pily.

I]. The Plaintiff agrees that for a period of time during her employment with WUSA, Plaintiffs job duties: included performing financial funetions: for Lincoln Park, Deposition transcript of Pat Emerson, dated April 28, 2004, page 10), lines 10-11, page 78, lines 17-22, ottachéd hereto as Exhibit B-1. Because of her responsibilities relating to Lincoln Park, the Plaintiff assisted In the grand jury investigation. Deposition trunseript of Fat Emerson, dated Apol 28, 2004, page 72, lines 20-25, attached hereto as Exhibit 8-1: documents relating to Pat Emerson's grand jury testimony, atiached hereto as Exhibit B-2. [he Plaintiff also testified before the grand jury on Febniary 13, 2002, pursuant to subpoena. Subpoena, Wembley Brief Exhibit A-13;

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documents relating to Pat Emerson's grind jury testimony, attached hereto as Exhibit B-2.

I2. Plamtiff believes that Defendant Goergen’s statements in the December 13 ¢mail damaged her reputation, Deposition transcript of Pat Emerson Vol. II, page 306, lines 2-4, Wembley Brief Exhibit A-16,

13. Plaintiff agrees that she cannot identify a job she believes she would have gotten, but for the December 13 e-mail. Deposition transeript of Pat Emerson Vol. I, page 317, lines 17-21, Wembley Brief Exhibit A-16.

14. = Plaintiff agrees that-no one hes told her that they think less of her because of the December 13 e-mail. Deposition transeript of Pat Emerson Vol. |, page

341. tines 17-21, Wembley Brief Exhibit. A-16, Plaintiff agrees that no one has told her that they feel she is fess competent than they thought before they saw the December 13-e-muail (Id. poge 331, line 22, pape 332, tine 17) or that they respect her less as a result of reading the December 13 e-mail, ld, at page 532, lines 21-24, Wembley Brief Exhibit A-L6, [3. Plaintiff agrees that no one has told the Plaintiff that they believe she was guilty of misconduct or anything like misconduct as a result of reading the December 13 e-mail. Id. at page 332, lines 21-24, Wembley Brief Exhibit A- 16, am)

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16, Plaintiff disputes all other facts listed as undisputed in the Wembicy Brief. b. Plaintiffs Undisputed Material Facts Plaintiff asserts that the following additional facts-are undisputed: l. PlainiitY resigned her employment on December 16, 2112. Deposition transcript of Pat Emerson, dated April 28, 2W4, page 42, lines 16-19, attached hereto os Exhibit B-1. Further, Plaintiff was forced to resign under the terms of a constructive discharge. Deposition transeript of Pat Emersan, dated April 28, 2004, page 191, lines 24-25, page 192, lines 1-5, attached hereto as Exhibit H-1.

iJ Defendant Howard was hired as CEO of WUSA and WINC in April 2001] For further clarification, Defendant Howard did not become an employee of WUSA or WINC until December 2003, See Robert Ty Howard's Deposition, taken April 30, 2004, page 45, lines 3-14, attached hereto as Exhibit B-3, [tis Plaintiff's position that she held the position of Acting CFO from April 2001 through Gctober 2001. See Deposition transeript of Janet Meis, wken April 3, 2004, page 10, lines 15-21, atmched hereto as Exhibit B4; Deposition transcript of Pat Emerson, taken April 28, 2004, page 26, lines 10-12, attached hereto as Exhibit B-1; documents relating to Pat Emerson a3 Acting CFO, attached hereto as Exhibit H-5,

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Case 1:03-cv-01793-EWN-BNB Document108 — Filed 09/12/2005 Page 7 of 39 3 It is Plaintiffs position that the performance evaluation, attached as Wembley Brief Exhibit A-6, constituted a negative evaluation, See Deposition transcript of Pal Emerson, taken April 28, 2004, page 235, lines 8-12, attached! hereto as Exhibit B-1.

4. Plaintiff filed an Equal Employment Opportunity Commission (BEOC™) discrimination complaint, charging Defendants with gender discrimination, among other things, treating her less favorably than her male counterparts, which treatment resulted in adverse employment actions including lost opportunities for advancement and lost increases to her wages and benefits, See EEOC Complaint Wembley Brief Exhibit A-7; documents relating to Plaintiffs EEOC Complaints, attached hereto as Exhibit B-32. WINC and WUSA have loaned or borrowed money from each other, Robert Lat Ty Howard's Deposition, taken April 30, 2004, page 143, lines 18-25, pawe

144. line 1, attached as Exhibit 8-3.

b. WUSA and WINC share the same Officers ond Directors, Sve documents relating to Wembley subsidiaries and officers, attached hereto as Exhibit B-6: WINC and WUSA share the same registered agents in Colorado and Delaware. See documents relating io Wembley subsidiaries ane officers, ittuched hereto as Exhibit B-6,

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Case 1:03-cv-01793-EWN-BNB Document108 Filed 09/12/2005 Page 8 of 39

a Plaintiff performed tay services to WINC and assisted WINC in

performing its primary function. See Wembley Brief, page 2.

9, PluintifY is an officer of WINC. See documents relating to Wembley

subsidiaries and officers, attached hereto as Exhibit B-6

10, In August of 2000, Plaintiif held a position in upper management and requested that Defendants Wembley provide her with a company car, which was a benefit Defendants Wembley provided to male managers at the sume level as the Plaintiff. See documents relating to benetit of company car, attached hereto as Exhibit B-7; statement submitted with EEOC Complaint, dated October 25, 2001, attached as part of Exhibit B- 32, The Plaintiff's: requests were denied. See documents relating to benefit of company car, attached hereto os Exhibit B-7; statement submitted with EEOC Complaint, dated October 25, 2001, attached as part of Exhibit B-32. Plaintiff later discovered that Defendants Wembley continued to provide company curs to male employees at her manogement level. See documents relating to benefit of company car, attached hereto as Exhibit B-7; statement submitted with EEOC Complaint, dated

October 25, 2001, attuched-os part of Exhibit B-32,

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Case 1:03-cv-01793-EWN-BNB Document108 Filed 09/12/2005 Page 9 of 39 il. In November of 2000, Plaintiff discovered that Defendants Wembley would be hiring a Finaneial Director for the Lincoln Park office in Lincoln Park, Rhode Island, See Emerson Affidavit, attached hereto as Exhibit B- 8.

12. In December of 2000, Plaintiff applied for the Financial Director position for the Lincoln Park office. See documents relating to Pat Emerson's application for Lincoln Park Financial Director position, attached hereto as Exhibit B-9.

13. In January of 2001, Plaintiff authired a memo directing no checks to be written to the law firm of McKinnon and Harwood, See memo regarding checks to McKinnon and Harwood, attuched hereto as Exhibit B-L0. i4, In April of 2001, the Plaintiff was appointed to the position of acting Chief Financial Officer ("CFO") for Defendants Wembley. See Deposition transcript of Janet Meis, taken April 3, 2004, page 10, lines 15-21, atlached hereto as Exhibit Bel; Deposition transcript of Pat Emerson, tuken April 28, 2004, page 26, lines 10-12, attached hereto as Exhibit 8-1; documents relating to Pat Emerson as Acting CFO, attached hereto as Exhibit B-5,

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15. Plaintiff was not provided with salary or benefits commensurate with the new position See documents relating to Plaintiffs compensation,

altached hereto as Exhibit B-11.

Io. Defendants Wembley appointed Plaintiff to the position of Secretary of the Board of Directors. See documents relating to Wembley’s subsidiaries

and officers, attached hereto as Exhibit B-6.

17, Also in April of 2001, Plaintiff received a letter from Wembley ple and WUSA promising her that the company would indemnify Plaintiff for any sensitive information she provided it with respect to certain questionable expenditures, presumably made by Wembley CEQ and CFO, Skip Sherman and David Brents. See April (2, 2001 letter to Pat Emerson, attached hereto as Exhibit B-12. Despite the indemnification agreement, Plaintiff was harassed and constructively discharged, See affidavit of Pat

Emerson, attached hereto 2s Exhibit B-8.

8. In July of 2001, Plaintiff authored several e-mails questioning several accounting practices such as. check. cashing through the money room, intemal control, and other accounting practices, See documents relating to

questionable accounting practices, attached heretw as Exhibit B-13,

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1% In August of 2001, Defendants Wembley hired a male for the Lincoln Park position, Mike Cardello, who had fewer quolifications for the position than the Plaintiff. See Emerson Resume, attached hereto as Exhitit B-14: Emérson Alfidevit, attached hereto es Exhibit 8-8,

20. In July and August of 200], Plaintiff complained to Defendant Wembley that she was being mistreated because of her gender. Deposition transcript of Pat Emerson, dated April 28, 2004, pape #2, lines 7-10, attached hereto as Exhibit B-1; documents relating to hostile work environment complaints, attached hereto as Exhibit 8-15, The Plaintit identified as a basis for gender discrimination the fact that Defendants Wembley did not consider her for the Lincoln Park position, as well as other incidents for which she received unfair treatment due to her vender. See documents relating to hostile work environment complaints, attached hereto as Exhibit B-15.

21, In August of 2001, Plaintiff discovered that Defendants Wembley posted her position on the Internet, See job posting, attached hereto as Exhibit B-16, I In October of 2001, Defendants Wembley hired Jeffrey Goergen to take over the Pinintiffs position as CFO. Deposition transcript of Pat Emerson, dated April 28, 2004, page 86, lines 15-15, attached hereto as

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Exhibit Bel. On October-25, 2001, Plaintiff filed an Equal Employment Opportunity Commission (“EEQOC™) discrimination complaint, charging Defendants Wembley with gender discrimination for, among other things, treating her less favorably than her male counterparts, which treatment resulted in adverse employment actions including lost opportunities for advancement and lost increases to her wages and benefits, See Wembley Brief Exhibit A-7; documents relating to Plaintiffs EEOC Complaints, dttached hereto os Exhibit H-32.

23, Tt tesponse to the Plaintiff's EEOC complaint, Defendants Wembley reduced the Plamtif's check-writing authority, and Defendants Wembley began to criticize the Plaintiff's job performance. Deposition transcript of Pat Emerson, dated April 28, 2004, page 144, lines 24-25_ page 145, line 1, attached hereto as Exhibit B-1.

24. Beginning in December of 2001. in further retaliation to the Plaintiff filing a complaint with the EEOC as well as her intemal complaints of gender discrimination, Defendants Wembley excluded the Plaintiff from. all further board meetings. See documents relating to Plaintiff's participation in meetings and suthority, attached hereto as Exhibit B-17, ball tah As further retaliation, on or about January.of 2002, Defendants Wembley stripped Plautit of her authority to approve all contracts and to approve

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purchases, which authority the Plaintiff had price 1o making complaints of gender discrimination. See documents relating to Plaintiff's participation in meetings and authority, attached hereto as Exhibit B-17; deposition lranscrip! of Pat Emerson, dated April 278, 2004, page 140, lines 10-24,

page 144. lines 24-25, page 145, line |, attached hereto as Exhibit B-1.

26. On February 6, 2002, Plaintiff was subpoenaed to testify before a Rhode island State grand jury proceeding investigating Defendants Wembleys' Rhode Island activities surrounding the implementation of Video Lottery Terminals, Deposition transcript of Pat Emerson, dated April 28, 24M, page 72, line 22, otfached hereto os Exhibit B-1, documents relating to the grand jury proceedings, attached hereto as Exhibit B-2, Immediately following her compelled testimony; Defendants Howard and Goergen began to mistreat the Plaintiff by ignoring her, criticizing her performance, criticizing her abilities in front of her subordinates, and perpetuating a hostile work environment, See documents relating to the grand jury proceedings, attached hereto as Exhibit B-2: deposition of Pat Emerson,

dated April 28, 2044, page 74, lines 9-17, attached hereto as Exhibit B-1.

27. In an e-mail sent from Defendant Goergen to the Plaintiff on February 15,

2002, Goergen acknowledges that the Plaintiff did “an outstanding job”

until “these recent issues” referring to the grand jury proceedings. Sve ¢-

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mail from Goergen, dated February 15, 2002, attached hereto as Exhibit

28. Immediately upon Plaintiff's return from testifying in front of the Rhode Island grand jury, Defendant Goergen approwehed Plaintiff to discuss certain “issues” he had with Plaintiff never before raised. See e-mail from Goergen, dated February 15, 2002, attached hereto as Exhibit B-18

29. After June 3, 2002, Defendants Wembley intentionally and falsely secused the Plaintiff of fraud and theft for the purposes of attempting to discredit the Plaintiff to her subordinates, peers, and to the EEOC, See documents relating to accusations of ful and theft, attached hereto.as Exhibit B-19,

30. Because of Defendants Wembleys’ continued mistreatment in response to the Plaintiffs EEOC ond internal complaints, Plaintiff filed a second HEOC claim for unlawful retaliation in June 2002. See Wembley Brief Exhibit A-8; documents relating to Plaintiff's EEOC Complaints, attached hereto as Exhibit B-32,

41. «On June 4, 2002, Defendant Goergen advised only the women of the accounting department thal excessive ‘emotion, negativity, and insubordination would not longer be tolerated, See documents relating to accounting team meeting. attached hereto. as Exhibit 8-20, I4

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Case 1:03-cv-01793-EWN-BNB Document108 ~ Filed 09/12/2005 Page 15 of 39 lad [+ On July 17, 2002, Plaintiff renurmed from approved vacation w find that Defendant Goergen advanced the deadline for a project upon which the Phamtif? was working, with the intent or reprimanding the Plaintitl for her inability to complete the project. See documents relating to Plaintift’s advanced deadlines, ullached hereto os Exhibit B-21, 33, = On July 24, 2002, Plaintiff requested a meeting with Defendant Goergen io discuss Defendants Wembly’s hostile work environment. Plaintiff infommed Defendant Goergen that constant and pervasive hostility and resentment directly affected her work. See documents relating to Plaintiffs request for meetings, attached hereto as Exhibit B-22,

34. Plaintiff relayed to Defendant Goergen that such hostile treatment was making her physically ill. See documents relating to Plaintiffs physical health, attached hereto as Exhibit B-23,

35. Defendant Goergen refused to meet with the Plaintiff but, instead, continued his hostile treatment of the Plaintiff. See documents relating to Plaintiffs physical health, attached hereto as Exhibit B-23. 36, As a result of Defendants Wembleys’ continued barrage of belittlement, the Plaintiff inquired as to whether there was an employee assistance

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program as the hostile work environment resulted in emustional difficulties. See documents relating to Plaintiff's physical health, attached lereto as Exhibit 8-23, a7, In an e-mail addressing Defendants Wembleys’ false statements regarding fraudulent conduct, the Plaintiff again relaved to Defendants Wembley that these false allegations negatively impacted her and asa result she was physically ill, See documents relating to Plaintiff's physical health, attached hereto as Exhibit B-23., a8. Ags a direct resull of the hostile work environment ond adverse employment actions perpetrated by Defendants Wembley, Plaintiff became emotionally distraught and took o medical leave of absence starting on August &, 2002, See documents relating to Plainoff's physical health, attached herelo os Exhibit 8-23, 39, = Plaintiffs dector provided Defendants Wembley with information concerning the emotional symptoms suffered by the Plaintiff asa result of Defendants: Wembleys’ actions, dee documents relating to Plaintiff's physical health, attached hereto os Exhibit B-23 It

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40, Defendants Wembley threatened the PlaintifY with termination unless she retumed to work by September 12, 2002. See documents relating to

Plaintiff's physical health, attached hereto as Exhibit B-23,

41. On September 5, 2002, after numerous communications with Defendants Wembley regarding her hostile work environment, the Plaintiff reflected to Defendant Coergen that his and Defendant Howard’s silence, regarding the Plaintiff's request to address the conduct, implied the situation would not be corrected. See documents relating to Plaintiff's request for a

meeting, attached hereto as Exhibit H-22.

42 In October of 2002 and in retaliation for the Plaintiff's internal and EEOC complaints of discrimination and retaliation, Defendants Wembley excluded the Plaintiff from budget discussions, See documents relating 16 Plaintiil’s participation in meetings and authority, attached hereto as

Exhibit 8-17; affidavit of Pat Emerson, attached hereto as Exhibit B-8.

43. Prior te: Plaintiffs complaints regarding Defendant Wembleys’ discriminatory practices, Plaintiff had regularly participated in budget discussions, See Emerson Affidavit, attached hereto as Exhibit B-9; deposition transcript of Pat Emerson, dated April 28, 2004; page 10, lines I-16, page 99, tines 16-18, page 175, lines 12-18, page 180, lines 21-25,

page 181, lines 1-9, attached hereto as Exhibit B-1.

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Case 1:03-cv-01793-EWN-BNB Document108 ~ Filed 09/12/2005 Page 18 of 39

44, Defendants Wembley then stipped the Plaintiff of most of her job duties and supervisory responsibilities. See deposition transcript of Pat Emerson, dated April 28, 2004, page 14), lines 23-24, attached hereto as Exhibit B- 1; documents relating to Plaintiff's participation in meetings and authority,

atteched hereto as Exhibit 8-17,

45. After being stripped of her duties, the Plaintiff's task was to place inventory. identification tags on hundreds of itéms at various locations. Deposition transcript of Pat Emerson, dated April 28, 2004, page 144, lines “8-12, attached hereto as Exhibit B-1; documents pertaining to tagging inventory. attached hereto as Exhibit B-24, This limited task degraded the Plaintiff. See documents pertaining tw tagging inventory,

attached hereto as Exhibit B-24,

46, Plaintiff made repeated requests of Defendants Wembley for a jab description and performance evaluation, See documents relating to Plaintii's request for a job description and performance evaluation, attached hereto as Exhibit B-25. Finally on November 5, 2002, Detendants Wembley provided the Plaintiff with « formal written evaluation, which for the first time in almost ten vears with Defendants Wembley, rated her very negatively and threatened her with termination.

See Wembley Brief Exhibit A-6; documents relating to Plaintiff's request

i}

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Case 1:03-cv-01793-EWN-BNB Document108 ~ Filed 09/12/2005 Page 19 of 39 for a job description and performance evaluation, attached hereto ws Exhibit B-25, 47, Following the negative evaluation, on November 8, 2002, Plaintiff reported to Detendants Wembley that she continued to experience hostile treatment, as well as adverse employment conditions commited by Detendants Howard and Goergen. See documents: relating to Plaintiffs request for a job description and performance evaluation, attached hereto as Exhibit B-35,

48. On or about December 13, 2002, Defendant Goergen sent an e-mail to the Plaintiff and over fifty (50) other individuals. inside and outside the company. See Exhibit A-15 Wembley Brief. The e-mail attacked the Plaintiff's mental capabilities and ability to perform her job stating, “Your version of reality frequently dows not correspond to mine...” questioning the Plaintiff's mental capabilities. See Exhibit A-15 Wembley Brief.

49. Asa resalt of Defendant Goergen's December 13, 2002, e+mail the Plaintiff was humiliated, emotionally distraught, embarrassed and stupefied to such great extent that she was forced to immediately resign under the terms of a constructive discharge, The Plaintiff had no other choice, Deposition transcript of Pat Emerson, dated April 28, 2004, page

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147, line 1, attached hereto as Exhibit B-1; documents relating to Plaintiff s constructive discharge, attached hereto as Exhibit B-26, 50, On May 30, 2003, satisfied that the Plaintiff had been disctiminated and retahated avainst, the EEOC tendered a night to sue letter to the Plaintiff with regard to all of her EEOC charges. See Right To Sue letter, attached hereto ag Exhihit B-27 un Although the Plaintit? worked for Defendants Wembley for ten (10) years, their actions forced her action,,.she was constructively discharged. Sve documents relating to Plaintiff's constructive discharge, attached hereto os Exhibit B-26, After the Plaintiff's employment with Wembley ceased, Wembley ‘ati Pub underwent a reorganization whereby Wembley USA, Inc. no longer owned the Lincoln Park operations. Instead, the Lincoln Park operations were trinsferred to Wembley, Inc, See affidavit of Pat Emerson, attached hereto as Exhibit B-#; documents relating to reorganization, attached hereto as Exhibit 8-33.

53, Because of the reorganization, Wembley, inc. most closely resembles the entity Plaintiff pertormed work for during her employment at Wembley. See affidavit of Pat Emerson, attached hereto as Exhibit B-8: documents

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relating to reorganization, attached hereto as Exhibit B-33, Plaintiff also performed work on behalf of Wembley USA, Inc. See affidavit of Pat Emerson, atlached hereto as Exhibit B-8, 4, Dan Bucci was an officer and director of Wembley at the time Plaintiff worked forthe companies. See documents relating to Wembleys' officers’ and subsidiaries, attached hereto as Exhibit B-6, Dan Bueci regularly worked with Plaintiff while Plaintiff was an il Lat employee of Wembley. See conmespondence between Dan Bucei and Pat Emerson, attached héreto as Exhibit B-28.

36. Through his work with the Plaintiff, Dan Bucei was able to form opinions of her work-and has knowledge regarding Plaintiff's scope of work. See correspondence between Dan Bucci and Pat Emerson, attached hereto as Exhibit B-28.

57. Dan Bucei was recently convicted for bribery and conspiracy relating to his work while employed by Wembley, See documents relating to Bucci's conviction, attached hereto as Exhibit B-29.

58. Plaintif? had knowledge of Bucci’s illegal acts and wttempted to stop them. See comespondence between Dan Bueci and Pat Emerson, attached hereto

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a8 Exhibit 8-28; documents relating Ww questionable accounting practices,

miached hereto as Exhibit 6-13.

il. Standard OF Review

In order to prevail on a Motion for Summary Judgment, the moving party must establish thal no issues of material fact exist and it is entitled to judgment as a matter of law, When o party seeks summary judgment, the court may only grant such relief “if the pleadings, depositions, answers to interrogatories, und admissions on file, together with the affidavits, if any, show that there is no penuine issue as to any material fact and thal the moving party is entitled to 4 judgment us.a mater of law.” Fed. R. Civ. P. 36(c}. In deciding the motion, the court should “accept as true the evidence presented by the nonmovant and draw all justifiable inferences in his favor.” Anderson v. Liberty Lobby, Ines, 477 US, 242, 255, 106 8.C1. 2505, 9) L.Ed. 2d 202 (1986),

Summary judgment is a drastic remedy and is never warranted except on a clear showing that there exists no genuine issue as to any material fact. Further, “summary judgment is appropriate only where the record, taken asa whole, could lead no rational trier of fact to find in... faver [of the non-moving party) and would support judgment in favor-of...[the moving party] a5 a matter of law.” Matrushira Elec. Indus. Co. v. Zenith fadia Corp, 475 U.S, 374, 586, 106 S.C 1348.89 Lbd.2d $38 (1986). In the present case, issues of material fact preclude a granting of summary judgment. Further, Plaintiff can establish each clement necessary to prevail om the claims she asserts against Defendants Wembley. Therefore, Defendant Wembleys’ Motion for Summary Judgment

should be denied.

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Hl, The Plaintiff Was Constructively Discharged

“To prove a constructive discharge, a plaintiff must present sufficient evidence establishing deliberate action on the part of an employer which makes or allows an employee's working conditions to become so difficult or intolerable that the employee has no other choice but to resign.” Wilven v. Bd, of County Comm'rs, 703 Pod 1257, 1259 (Colo, 1985) (citing Irving v. Dubuque Packing Co., 689 F.2d 170 (10" Cir, 1982). A successful argument of constructive discharge “depends upon whether a reasonable person under the same or similar circumstances would view the ...working conditions as intolerable.” Border Valley Sch Dist, R-2 v, Price, 805 Pd 1085, 1088 (Colo, 1991). Cumulative events can als’ cause working conditions to déteriorate to an intolerable level, Hogwe vo MON Jnspection, 875 F.Supp. 714 (D,Colo: 1995), Because of the lengthy, hostile, demeaning actions of Defendants Wembley, as illustrated in Plainiff's Undisputed Pacts listed above, a reasonable person in the Plaintiil’s position would view her conditions as intolerable. Therefore, Wembleys’ Motion For Summary Judgment

should be DENTED.

IV. Plaintiffs Evidenee Supports Her Breach Of Contract Claim a. The Severance Agreement Is Triggered The Plaintiff and Defendants Wembley entered into @ severance agreement whereby Defendants Wembley agreed to pay Plaintiff one year's full pay in the event

Plaintiff was terminated (“Severance Agreement”), See Wembley Brief Exhibit A-11,

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Defendants Wembley have failed w perform under the Severance Agreement and are therefore in breach of this agreement,

Defendants Wembley argue that performance under the Severance Agreement was conditioned upon Defendants: Wembleys’ termination of the Plaintiffs employment. Delendants Wembley further argue that because Plaintiff resigned, the Severance Agreement is not triggered. See Wembley Brief, page 9, Under the constructive discharge doctrine, however, an employee's reasonable decision to resign because of unendurable working conditions is equivalent to a formal discharge for remedial purposes. See Pennsylvania State Palice v. Suders, 542 U.8.129, 124 S.Ct 2342 (2004) (citing BH. Lidemann & P. Grossman, Employment Discrimination Law 838-839 (3d ed, 1996)). Because constructive discharge constitutes formal discharpe, the Severance Agreement is triggered and Plaintiff is entitled to one year's severance pay. See Wembley Brel Exhibit A-11. Because Defendants Wembley have not paid Plaintiff severance pay, they are in breach of the Severance Agreement.

Defendants Wembley cite to Alance Metals, Ine. v. Hinely Inetus,, Ime, 222 Fd 895, 902-903 (11 Cir, 2000) in support of its argument that constructive discharge does not constitute termination by the employer in the context of a breach of contract claim. See Wembley Brief, pages 10-11. In AlNanee Metals, the 11" Circuit cites to Turner v. Anheuser-Busch, Ine, 7 Cal4" 1238, 32 Cal. Rptr.2d 223, 876 P.2d 1022, 1030 in-which the court stated “standing alone, constructive discharge is neither a tort nor a breach of contract, but a doctrine that transforms, what is ostensibly a resignation into a firing.” fi The employment provision at issue in Aflianee Mefaly was a non-competition provision,

unlike the Severance Agreement in this case, requiring that the defendant not start,

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participate in, oF assist any competitive enterprise for two years after his departure from Alliance. See ia, at 902. The employment provision in Ailiance Metals contained two narrow “escape clauses” included in paragraph }(YD), See id One of the two escape clauses provided that the non-competition provision would become null and void, if after thirty days notice to Alliance and its lawyer, Alliance failed to cure » material breach of the employment contract. See id The “terminat{ion] by Employer without couse” was the second escape clause the parties included in paragraph 10(D), See ja. The Alliance Metalx court did not consider the “by Employer” term in isolation. It concluded that the language “termat{ion) by Employer without cause” manifested the intent to foreclose the son of unintentional invalidation of the non-competition provision that could result from a constructive discharge. See id. Unlike the Severance Agreement at issue in this case, the type of employment provision at issue in Alliance is drastically different. Therefore, this Court should not rely on Adiance Metaly in formulating its ruling with regards to Wembleys’ Motion For Summary Judgment.

Wembley recognizes that no Colorado case has deal) with this exact issue. However, breach of an employment contract due to constructive discharge is recognized within the 10" Circuit. The U.S, District Court of Kansas has allowed such claims to proceed. See Leapoldstadt, Ine. v. Fitzgerald, No. 91-2419-GTV, 1992 WL 396330, at 5- 6 (D. Ran, Dee. 22, 1992) Kansas. would recognize a cause of action for breach of an employment contrict due to constructive discharge), This Court should likewise allow Pluintifl to proceed with her claim of breach of contract based upon Wembieys’ refusal to

pay Plaintiff's severance pay despite the fact that Plaintiff was constructively discharged.

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b. Plaintiff Was Also Given An Indemnification Agreement

On April 12, 2001, Wembley ple sent to Plaintiff a leer indicating that the company would indemnify her for any sensitive information she provided Wembley with respect to certain questionable expenditures (“Indemnification Agreement”). Sve letter from Wembley ple and WUSA to Pat Emerson, attached hereto os Exhibit B-12. After receiving the Indemnification Agreement, Plaintiff informed Wembley af ceriain actions taken by Wembley USA, Inc: CEO and CFO, Skip Shennan and David Brents. See affidavit of Pat Emerson, attached hereto as Exhibit B-8, Although Plaintiff was provided an Indemnification Agreement, Plaintiff was harassed and constructively discharged because she provided such information io Wembley. See affidavit of Pat Emerson, attached hereto as Exhibit B-S,

An indemnification agreement, such as the one in this case, is generally governed bythe same roles of construction and interpretation that gover contracts. See Way Dept, Stares Cov, University Milly, dne., 824 Pd 100 (Colo. App. 1991). In the instant case, the Indemnification Agreement provides that Wembley ple and WUSA will indemnify Plaintiff if Plaintiff provides: Wembley with certain information. The Indemmitiestion Agreement, therefore, Was tnggered when Plaintiff provided information to Wemblcy. Plaintiff did provide information to Wembley, See affidavit of Pat Emerson, attached hereto as Exhibit B-8®. [In accordance with the Indemnification Agreement, Wembley should indemnify Plaintit for the damages she incurred as a result of her constructive discharge from the company, Because Wembley has failed to do so, Wembley is in breach of the Indemnification Agreement, See affidavit of Pal Emerson, anoched: hereto

a3 Exhibit B-8.

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Vv. WINC Is Plaintiff's Employer a. Wembley Was Reorganized After Plaintiff's Employment Ceased

While Plaintiff was employed by Wembley, WINC wholly-owned WUSA. See organization charts, attached hereto as Exhibit B-28; affidavit of Pat Emerson, attached hereto os Exhibit B-8. WUSA in turn wholly-owned Lincoln Park. See organization charts, attached hereto as Exhibit B-28; affidavit of Pat Emerson, attached hereto as Exhibit B-8. After Plaintiffs employment with Wembley ceased, Wembley was reorganized. Now, WINC wholly owns Lincoln Park. See organization charts, attached hereto as Exhibit B-28; affidavit of Pat Emerson, attached hereto as Exhibit 8-8 WUSA no longer maintains the same assets, structure, or responsibilities ft did during the time Plaintiff was employed by Wembley. See organization charts, attached hereto as Exhibit B-28; affidavit of Pat Emerson, attached hereto us Exhibit B-8. Instead, those assets and responsibilities are now divided between WINC and WUSA. See organization charts, attached hereto as Exhibit 8-28; affidavit of Pat Emerson, attached hereto as Exhibit B-8.

Although the undersigned could not locate any Colorado state or federal cases on this point, it follows logic that where a company has reorganized, the Plaintiff should have standing to assert claims against any company resembling the companies for which she once worked. Therefore, both WINC and WUSA were appropriately named o

defendant to this action.

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b. WINC And WUSA Are A Single Entity Under Tithe VI

Detendanis Wembley argue that Plaintiff's Tile VII claim against WINC fails because WINC does not employ the requisite fifteen (15) employees to be subject to Title VI. See Wembley Brief, page 14. However, Plaintiff is entitled to Tithe VII relief if Defendants Wembley could be considered a single or joint employer under 42 U.S.C. § 000e(), See Mekensie vo Davenport-Harrix Funeral Home, $34 F.2d 990 (11 Cir (487). The predominant trend in determining whether two businesses should be treated as a single or joint employer under § 2000e(b) is to apply the standards promulgated by the National Labor Relations Board (“NLRB”). See Egnal Employment Opportunity Comm'n y, Wooster Bruch Co, Employees Relief Axc'n, 727 F.2d 566, 572 (6° Cir. 1984), Childs v. Local 18, fat l Bla af Elec. Workers, 719 F.2d 1379, 1382 (9" Cir. 1983); Trevino v. Celanese Corp., 701 F.2d 397, 404 (5™ Cir, 1983); Mas Marques v, Digital Equip. Corp. 637 F.2d 24, 27 (1" Cir, 1980), The NLRB factors include: (1) interrelation of operations, (2) centralized control of labor relations, (3) common miihagement, and (4) common ownership or financial control

In this case, WUSA aids in WINC’S primary function to file tax returns on behalf af its subsidiaries, Furthermore, WUSA and WINC share the same officers. See Undisputed Facts above. WUSA is also owned by WINC. See Undisputed Facts above. Detendant Howard has testified that WINC and WUSA have loaned or borrowed money from each other. See Undisputed Facts above, Furthermore, The Plaintiff performed tax planning and preparation, consolidation and budgeting activities for WINC thus assisting in WINC's primary function, even though she is an employee of WUSA, See Undisputed

Facts oboye, The evidence presented raises a genuine issue of material fact as to whether

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WUSA and WINC are a joint employer under 42 U.S.C. § 2000e(b), As such, summary judgment is precluded, ec. WINC Is Plaintiffs Employer Under Common Law Agency

Defendants Wembley also argue that WINC does not qualify as the Plaintiffs employer as.to the Maintilfs other claims under common Jaw principles. See Wembley Brief, page 15, However, a liberal construction must be accorded to the term employer, See Trevino « Celanese Corp., T01 F.ad 397, 403 (5" Cir, 1983); Baker vo Stuart Broudcasiing Co. 560 F.2d 389, 391 (8" Cir, 1977) Therefore, this Court should construe such interpretation broadly.

The existence of an agency relationship is ordinarily a question of fact to be determined by the fact finder, See Moves vo Diocese of Colorado, 863 Pd 310, 334 (Colo, 1993), -A court can only decide whether an agency relationship exists as matter of law when the facts ore nol in dispute. See fa, As discussed below, facts regarding Plaintiff's relationship with WINC are in dispute. Therefore, this issue is not properly decided upon motion for summary judgment.

Agency is ultimately a question of the intention of the parties and is evidenced by their acts and not on what the relationship is-called, See Granite State Fire Ins, Co. v Mitton, 98 F.Supp. 706 (D. Colo, 1951), afd 196 F.2d-988 (10 Cir. 1952), Thus, formal tenminology regurding the relationship between the Plaintiff and WINC ig not necessary. In determining whether o hired party is an employee under the general common law of agency, courts evaluate all factors relevant to the to the hiring party's right to control the manner and means by which the work is accomplished. See Hockert

v. Sun Co. Ine. (RAM), 109 F.3d 1915, 1526 (10" Cir. 1997). These factors include: (a)

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the skill required in the particular occupation; (b) the source of the instrumentalities and iools tor the person doing the work; (¢) the location of the work; (d) the duration of the work relationship; (¢) the hiring party’s right to assign additional projects to the hired party; (1) the hired party's discretion over when and how long to work; (g) the method of payment, whether by the time or by the job; (h) the hired party's role in hiring and paving assistants; (i) whether the work is party of the regular business of the hiring party; (}) whether the hiring party is or is-not in business; (k) the provision of employee benefits;

(I) tax treatment of the hired party. See id. No single factor is dispositive. See il “A cour may also consider the intent of the parties and their beliefs as to whether they have created the relation of employer and employee,” Roth vo American Hosp. Supply Carp., 968 F.2d 862, 865 (10" Cir. 1992), Hooker, 109 F.3d at 1526,

As Defendants Wembley state, WINC's primary function is to file tax returns on behalf of its subsidiaries, See §2 Wembley Brief. It is undisputed that Plaintiff prepared ithe tax returns on behalf of WINC. See Undisputed Facts above, Therefore, the work performed by Plaintiff was part of WINC's regular business. Furthermore, Plaintiff has testified that because WUSA and WINC share the exact same directors and officers, Plaintiff did. not know whether she was reporting to WUSA or WINC when conducting her work. Deposition transeript of Pat Emerson, dated April 28, 2004, page 105, lines 6- 14, attached hereto as Exhibit B-1, However, Plaintiff believes she received instructions from WINC pertaining to tax audit and tax preparation. Deposition transeript of Pat Emerson, dated April 28, 2004, page 106, lines 5-15. Plaintiff also had contact with WINC with respect to her grand jury testimony. Deposition transcript of Pat Emerson,

dated April 28, 2004, page 106, lines 21-23, attached hereto as Exhibit B-1.

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Plaintiff can demonstrate that a disputed issue exists with regards to whether WUSA and WINC oeted as one entity. This issue, therefore, should be properly preserved for a jury, Tf the jury determines that WUSA and WINC are the same entity and that WINC was Plaintiffs employer, Plaintiff should prevail on her claims against

WINC. At this time, Wembley’s Motion For Summary Judgment should be DENIED,

VI. Defendants Wembleys’ Outrageous Conduct Caused The Plaintiff Severe Emotional Distress

Federal Rule of Civil Procedure 56 allows the court to consider “the pleadings, depositions, answers to interrogatories, ond admissions on file, together with the affidavits.” Therefore, contrary to Defendants Wembleys’ contention, this Court must consider all evidence, not solely the Complaint. As illustrated, Defendants Wembleys’ continued callous conduet caused the Plaintiff severe emotional distress. This conduct can be offered to prove Plaintiils Tite V0 claims, Any evidence above that required to prevail on Plainuiif's Tithe VII claim may be used to establish Defendants Wemblevs’ outnigeous conduct,

The question of whether certain conduct mses to the level of outrageousness is ordinarily a question of fact for the trier of fact. See Cassidy vy. Millers Cas, Ins. Ca. af texas: | F.Supp.2d 1200, 1243 (D. Colo. 1998). However, the court must first determine whether reasonable persons could differ on the outrageousness issue, See ial citing Simmons v. Prudential Inv. Co. of America, 641 F-Supp. 675, 683 (D. Colo. 1986). In Rawson v. Sears Roebvek & Co, 530 F.Supp. 776; 780 (D.Cole, 1982), rev'd on other grounds, $22 F.2d 908 (10" Cir, 1987), Judge Kane determined that a plaintiff must

establish a certain minimum threshold level of conduct to state @ cause of nection for

a1

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outrageous conduct, See Cussidy, supra, at 1213, To meet this threshold, the plaintiff must allege enher that (1) defendant has. engaged in a pattern of conduct that was intended to cause or recklessly did cause severe emotional distress; or (2) if the incident is fsOlated, defendant blatantly and severely harassed plaintiff. See Rawson at 780; accord Arezinski v, FIV. Woolworth Co,, 626 F.Supp.240, 244 (B.Calo, 1986). Defendants Wembley engaged in a pattern of conduct that was intended (o cause or recklessly did cause severe emotional distress. Plaintiff communicated her physical illness that resulted from Defendant Wembleys’ severe emotional distress, Plaintiff also sought treatment for her emotional distress from her treating doctors, See Undisputed Facts above; documents relating to Plaintifi's physical health, attached hereto as Exhibit B-23. Plaintiff's resulting emotional symptoms reflect the outmpeousness of Defendant Wembleys’ conduct, Plaintiff has made a sufficient showing w pass the threshold test outlined in Coady, supra and Wemblevs’ Motion For Summary Judgment should be

DENTED.

VIL Defendants Wembley Wrongful Discharged The Plaintiff In Violation OF Pubtic Policy

The elements of a wrongful discharge claim are: (1) the employer directed the employee to perform and illegal act as part of the employee's duties; (2) the action directed by the employer would violate a statute or clearly expressed public policy: (3) the employee was terminated as a result of refusing to perform the illegal act; and (4) the employer was aware or should have been aware that the employee's refusal was based upon the employee's reasonable belief that the act was illegal. See Murtin Murietta v.

Lorenz, 623 P2d 100, 109 (Colo. 1992), This judicially crafled exception to at-will

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employment restricts an employer's right to terminate the employee's employment when the termination contravenes accepted and substantial public policies such as those embodied by legislative declarations, professional codes of ethics, or other sources. See Wisehart v. Meganck, 66 P.3d 124, 127 (Cola. App. 2002) cert, denied (emphasis added),

In this case, Plaintiff, a licensed CPLA. performed tax, ond accounting responsibilities for Defendants Wembley, See Wembley Grief. Mlaintiff discovered and complained to Defendants: Wembley about questionable accounting pructices such as the payments made to Mr. Sherman's step-daughter for work never perfonmed by the stepdaughter (see Undisputed Facts above; documents relating to questionable accounting practices, attached hereto os Exhibit B-13); whether certain property should be sold below market value (see documents relating to questionable accounting practices, attached hereto as Exhibit B-13); and payments made to an employee's daughter's British Primary School in the amount of $10,000.00 (see documents relating to questionable accounting practices, attached hereto as Exhibit B-13), In January of 2001, Plaintiff specifically stated that no checks were to be made to the law firm ef McKinnon and Harwood because she suspected thal Wembley was bribing them in order to gain advantage in gaming industry, See documents reloting to MeKinnon and Harwood, attached as Exhibit B-10. Throughout the month of July of 2001, Plaintiff authored emails regarding her concems of additional questionable accounting practices, including intemal controls and checks being cashed through the money room, See documents relating to questionable accounting practioes, attached hereto as Exhibit 8-13, The Plaintiff communicated her obligations to Defendants Wembley by stating “! am held to

[ethical standards| as a Certified Public Accountant and the possibility that I could lose

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my license by remaining silent.” See documents relating to questionable secounting practices, attached hereto as Exhibit B-13, These questionable accounting practices were detailed to her supervisors. See documents relating to questionable accounting practices, attached hereto as Exhibit B-13.

In Rocky Mountain Hosp. and Medical Service v, Mariani, 916 P.2d 319, 523 (Colo. 1996), the court held that the Colorado State Board of Accountaney Rules and Regulations may constitute public policy for purposes of establishing a wrongful discharge claim in violation of public policy. See dd, These rules specifically direct an accountant to retrain from knowingly misrepresenting facts. fa) at 526.

As aforementioned, the Plaintiff was constructively discharged. Although Colorado state courts have not yet determined whether constructive discharge is sufficient to prevail on a claim of wrongful discharge in violation of public policy, the absence of such a determination does not render Maintiffs claim null, In fact, the Supreme Court of Oklahoma in Collier, when analyzing Oklahoma’s public policy exception to at-will employment. found that a retaliatory constructive discharge may serve asa prediculie in bringing a public policy claim. See Colfer vo dasignia Pindnciel Group, 981 Pd 321, 324 (Okl, 1999), In this case, Plaintiff has demonstrated that she was constructively discharged because she questioned Defendants Wembley regarding several questionable accounting practices, Therefore, Wembleys’ Motion For Summary

Judgment should be DENTED.

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Case 1:03-cv-01793-EWN-BNB Document108 — Filed 09/12/2005 Page 35 of 39

VILL. The Plaintiffs Evidence Satisfies The Requirements of C.RS § §-2.5-101

Defendants Wembley argue that Plaintiff cannot prevail on her claim of violation of C.R.S, § §-2.5-101 because the statute only precludes Defendants Wembleys' disctiminuiory practices relating to Plaintiff's testimony where those discriminatory practices are the sole result of Plaintiff's testimony, See Wembley Brief, pages 24-24. (On its face, this argument fails logic, It docs not follow that an employer acts lawfully if it discriminates against its employees for a number of different reasons, but acts unlawfully if it discriminates against its employees for only one reason,

The term “solely” as used in the statute refers to the employee's actions, not the employer's reasons for discriminating against the employee.. That is, if the employer has no valid, lawful reason to treat the employee negatively and the aniy reason that the employer treats the employee negatively is because of the employee's testimony, the employer violates the statute. This court should not adopt an interpretation that would encourage employers to discriminates, harasses, and retaliates for a multitude of reasons where this court can adopt an interpretation that would discourage employers from discriminating. harassing, and retaliating altogether.

Nevertheless and as previously discussed, Plaintiff can show that she was discriminated apainst solely for her testimony during the Rhode [sland grand jury proceedings. Plaintiff received her first negative evaluation; Pefendant Goergen criticized the Plaintiffs job performance: Plaintiff was falsely accused of fraud; ancl Plant! was repeatedly threatened with termination immediately following her grand Jury testimony. See Deposition transcript of Pat Emerson, dated April 28, 2004, page 6,

lines 15-17, attuched hereto as Exhibit B-1 and undisputed facts listed above, This

a3

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sequence of events following Plaintiffs testimony illustrates Defendants Wembleys’ retaliation asa direct result of Plaintiff's testimony. Therefore, Defendants Wembleys’ Motion For Summary Judgment should be DENTED.

IX. Rule 56(f Motion

Plaintiff is planning on taking the deposition of Dan Bucci no later than December 7, 2005, During the deposition, Plaintiff is expected to elicit information from Mr. Bucci relating to Plaintiffs scope of work, quality of work, and Defendants Wembleys’ discriminatory practices, See affidavit of Pat Emerson, attached hereto as Exhibit B-8. Plaintiff respectfully requests permission to ‘supplement her Response pursuant to Rule S6(f).

This case has been temporarily stayed pending the deposition of Daniel Bucel. Plaintiff has been unable to depose Mr. Bucci because he was undergoing a criminal trial in Rhode Island (the “Lincoln Part bribery-conspimey trial”). Plaintiff previously and timely subpoenaed Mr. Bucci for his deposition, but Mr. Buce: moved to quash the subpoena. This Court has ruled that Plaintiff timely subpoenaed Mr. Bucei and should be allowed to take Mr. Bueci’s deposition before responding to Wembleys’ Motion For Summary Judgment or proceeding to trial. See Order And Memorandum Of Decision, dated March 31, 2005, attached hereto as Exhibit B-30,

After Plaintiff filed a Motion To Enforce Subpoena, the United States District Court for the District of Rhode Island held oral arguments on the enforceability of the subpoena. On July 19, 2004 the Rhode Island District Court entered its Order regarding

Motions by Danie] Bucei To Quash Subpoena or For Protective Order and by Patricia

an

Page 37

Emerson To Enforce Subpoena {ssued To Danicl Bucci or to Modify Subpoena ns Justice Requires. That Court's Order denied in part and allowed in part these motions,

The Order stated that Mr. Bucei's deposition in the matter of Emerson ¥, Wembley, dae. CUA, Now. 03-N-1793 (ENB) would be allowed to proceed aa soon as practicable following the verdict in Mr, Bucci’s criminal case. The reason for the ordered delay of the deposition was for practical purposes, That Court reasoned that the criminal trial would end soon and Mr. Bucei would provide more information upon conclusion of the criminal trial, Counsel was to confer seven (7) days following the verilict in the criminal case to apree on a mutually conventent date for the deposition.

The cnminal trial résulted in an acquitial for Mr, Bueci on several criminal charges. The remaining charges résulted ina hung jury. Counsel for Plaintiff has called Mr, Traini, counsel for Mr. Bucei, but had not been.able to communicate with Mr. Traini. At the conclusion of the trial, prosecutors decided to retry those issues that resulted in a hung jury. Mr. Bucet was to face wretrial on bribery-conspiracy charges beginning April 26, 2005. The Rhode tsland District Court stayed indefinitely the date for the second trial lo decide pre-tnal motions, including one that would move the tial to Massachusetts. The second criminal trial resulted in a conviction.

In light of recent developments, Plaintiff filed a Motion To Amend Onder pertaining to the subpoena issued to Mr. Buect. In her Motion, Plaintiff requested that she be allowed to depose Mr. Bucci so that Plaintiff's civil action may proceed, On September 7, 2005, the Rhode Island District Court held oral arguments regarding Plaintiff's Motion To Amend Order. Judge Lisi fully granted Plaintiffs Motion, ordered

Nir, Traini to produce Mr, Buect for bis deposition no later than ninety (90) days from the

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Case 1:03-cv-01793-EWN-BNB Document108 ~— Filed 09/12/2005 Page 38 of 39 date of the hearing, and allowed Plaintiff to take a video deposition of Mr. Bucci, See Order, attached hereto us Exhibit B-31, Defendants Wembley have argued vehemently against Plaintiffs Motion To Amend Order and have been uncooperative in scheduling the deposition of Mr. Bucci.

Plaintiff anticipates gathering significant and vital information during Mr, Bucci’s deposition, See affidavit of Pat Emerson, attached hereto as Exhibit B-8, Thereiore, Maintiff respectiully requests this Court to allow Plaintiff te supplement this Response in ilk entirety after she has deposed Mr. Bucei. Plaintiff also requests that this Court delay its ruling with respect to Wembleys’ Motion For Summary Judgment until such a time as Plaintiff is able to supplemert this Response, WHEREFORE, and based on the foregoing, Plaintiff respectiully requests this Court to deny Defendants Wembleys’ Motion for Summary Judgment and to allow Plaintiff to supplement her Response pursuant to F.R.C.P. 36(f). Respectfully submitted this 12° doy of September, 2005, ZUPKRUS & ANGELL, PAC.

Robert #upkus Bradley N. Shefrin Melissa A. Clack fupkus & Angell, PC.

953 EF; ain Avenue Denver, Colorade 8020/2 Telephone: (303) 894-8948 Fax: (3103) 894-0104 E-mail: mupkus(@zalaw.com E-mail: bshetrin‘d@zalaw.com E-mail: melacki@izalaw.com Atfarneys for Pleintt Patricia Emerson a8

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Case 1:03-cv-01793-EWN-BNB Document108 — Filed 09/12/2005 Page 39 of 39 CERTIFICATE OF SERVICE | hereby certify that on this 12th day of September 2005, | electronically filed the foregoing PLAINTIFF'S RESPONSE TO WEMBLEY INC."S) RENEWED MOTION FOR SUMMARY JUDGMENT AND WEMBLEY USA, INC.*S RENEWED MOTION FOR PARTIAL SUMMARY JUDGMENT, with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

kemix (als Wlaw com Kristen L. Mix, Esq, Sell & Wilmer 1200 Seventeenth Street, Suite 1900 The Tabor Centar Denver, CO 80202 a! Tins MM. Rowzell FOR AUPKUS & ANGELL, Pil.