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Case 1:03-cv-01793-EWN-BNB Document 120 Filed 01/11/2006 Page 1 of 26 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01793-EWN-BNB PATRICIA A. EMERSON, Plaintiff, v.
WEMBLEY USA, INC.; WEMBLEY INC.;
ROBERT TY HOWARD in his personal capacity; and JEFFREY GOERGEN in his personal capacity, Defendants.
______________________________________________________________________________ REPLY BRIEF IN SUPPORT OF WEMBLEY, INC.’S SECOND RENEWED MOTION FOR SUMMARY JUDGMENT AND WEMBLEY USA, INC.’S SECOND RENEWED MOTION FOR PARTIAL SUMMARY JUDGMENT ______________________________________________________________________________ Defendants Wembley, Inc. (“WINC”), and Wembley USA, Inc. (“WUSA”), through their attorney Kristen L. Mix of Snell & Wilmer L.L.P., respectfully submit the following Reply Brief in Support of their respective Second Renewed Motion for Summary Judgment and Second Renewed Motion for Partial Summary Judgment.
I.
1.
RESPONSE CONCERNING DISPUTED FACTS1
Defendants admit that Plaintiff resigned from employment with Defendant WUSA on December 17, 2002. Exhibit A-2. The allegation that “Plaintiff was forced to resign under the terms of a constructive discharge” is disputed.
1 The numbered paragraphs below correspond to the numbered paragraphs in section I.b., “Statement of Additional Disputed Facts,” in Plaintiff’s Response to Defendants’ Second Renewed Motion for Summary Judgment.
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Document 120 Filed 01/11/2006 Page 2 of 26 Defendants admit that Defendant Robert Ty Howard (“Howard”) was hired as Chief Executive Officer and Chief Financial Officer of WUSA and WINC in April 2001. Exhibit A-3, ¶¶ 2-3. The allegation that Plaintiff held the position of Acting Chief Financial Officer from April 2001 through October 2001 is disputed.
3.
Defendants admit that Plaintiff’s performance evaluation dated November 5, 2002 was partially negative. Exhibit A-6.
4.
Defendants admit that Plaintiff filed an EEOC Charge of Discrimination, which speaks for itself. Exhibit A-7.
5.
Defendants admit that Defendants WINC and WUSA have loaned or borrowed money from each other. Exhibit B-3, 143-144; 18-1. However, as set forth in section II, infra, this fact is immaterial.
6.
Defendants admit that at certain times, Defendants WINC and WUSA shared some officers and directors. Exhibit B-6. However, as set forth in section II, infra, this fact is immaterial.
7.
Defendants admit that at certain times, Defendants WINC and WUSA had the same registered agents in Colorado and Delaware. Exhibit B-6. However, as set forth in section II, infra, this fact is immaterial.
8.
This allegation misquotes Defendants’ Brief in Support of their Motions for Summary Judgment as its sole reference source, and is therefore disputed. 9.
Defendants admit that, for a certain time period, Plaintiff was the Secretary of WINC. Exhibit B-6. However, as set forth in section II, infra, this fact is immaterial.
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Document 120 Filed 01/11/2006 Page 3 of 26 The reference to the material in the record (Exhibits B-7 and B-32) does not support the claimed facts, and therefore the allegations are disputed. 11.
Defendants do not dispute that Plaintiff discovered that a Chief Financial Officer would be hired for Lincoln Park in November of 2000. Exhibit B-8. 12.
The reference to the material in the record (Exhibit B-9) does not support the claimed fact that Plaintiff applied for the Lincoln Park CFO position in December of 2000, and therefore the allegation is disputed.
13.
Defendants admit this fact. Exhibit B-10.
14.
This allegation is disputed.
15.
This allegation is disputed.
16.
Defendants admit that Plaintiff was appointed Secretary of WINC and WUSA prior to the change in management which occurred in April, 2001. Exhibit B-6. However, as set forth in section II, infra, this fact is immaterial.
17.
Defendants admit that Plaintiff received the specified letter. Exhibit B-12. The remaining allegations are disputed.
18.
Defendants admit that in July of 2001, Plaintiff wrote two e-mails, dated July 26, 2001 and July 27, 2001, relating to internal control issues at Lincoln Park. Exhibit B-13, pp. 3135. The reference to the remaining material in the record does not support the remaining claimed facts, and therefore the allegations are disputed.
19.
Defendants admit that Michael Cardello, a male, was hired as Chief Financial Officer of Lincoln Park in August of 2001. Exhibit B-32. The remaining allegations are disputed.
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Document 120 Filed 01/11/2006 Page 4 of 26 Defendants admit that in August of 2001, Plaintiff complained to WINC and WUSA director Mark Elliott and WINC and WUSA Chief Executive Officer and Chief Financial Officer Howard about alleged gender discrimination, and that her written complaint speaks for itself. Exhibit B-15.
21.
This allegation is disputed.
22.
Defendants admit that Jeff Goergen was hired as Chief Financial Officer of WUSA in October of 2001, but dispute that this had been Plaintiff’s position previously. Exhibit A-3, ¶4. Defendants admit that Plaintiff filed an EEOC Charge of Discrimination, which speaks for itself. Exhibit A-7.
23.
These allegations are disputed, but as set forth in section II, infra, they are immaterial to the claims on which Defendants seek summary judgment. 24.
These allegations are disputed, but as set forth in section II, infra, they are immaterial to the claims on which Defendants seek summary judgment. 25.
These allegations are disputed, but as set forth in section II, infra, they are immaterial to the claims on which Defendants seek summary judgment. 26.
Defendants admit that Plaintiff was subpoenaed to testify before a Grand Jury in Rhode Island on February 13, 2002. Exhibit B-2. The remaining allegations are disputed. 27.
The reference to the material in the record (Exhibit B-18) does not support the claimed fact, which is therefore disputed.
28.
The reference to the material in the record (Exhibit B-18) does not support the claimed fact, which is therefore disputed.
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Document 120 Filed 01/11/2006 Page 5 of 26 The reference to the material in the record (Exhibit B-19) does not support the claimed fact, which is therefore disputed.
30.
Defendants admit that Plaintiff filed a second EEOC Charge of Discrimination on June 3, 2002, which speaks for itself. Exhibit A-8. The remaining allegations are disputed. 31.
The reference to the material in the record (Exhibit B-20) does not support the claimed fact, which is therefore disputed.
32.
The reference to the material in the record (Exhibit B-21) does not support the claimed fact, which is therefore disputed.
33.
Defendants admit that Plaintiff sent Jeff Goergen an e-mail on July 29, 2002, which speaks for itself. Exhibit B-22.
34.
Defendants admit that Plaintiff sent Ty Howard an e-mail on August 12, 2002, which speaks for itself. Exhibit B-23, pp. 2-3.
35.
The reference to the materials in the record (Exhibit B-23) does not support the claimed fact, which is therefore disputed.
36.
Defendants admit that Plaintiff sent Janet Meis an e-mail dated July 29, 2002, which speaks for itself. Exhibit B-23, p. 16.
37.
Defendants admit that Plaintiff sent e-mails to Defendant Howard and/or Goergen on August 5, 2002, August 7, 2002, August 12, 2002, August 23, 2002, and October 2, 2002, all of which speak for themselves. Exhibit B-23. The remaining allegations are disputed. 38.
Defendants admit that Plaintiff requested and was granted leave under the Family and Medical Leave Act and sick leave from August 8, 2002 through October 12, 2002. Exhibit B-23. The remaining allegations are disputed.
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Document 120 Filed 01/11/2006 Page 6 of 26 Defendants admit that they received certain information from Tracy Todd, Ph.D., which speaks for itself. Exhibit B-23. The remaining allegations are disputed. 40.
The reference to the material in the record (Exhibit B-23) does not support the claimed fact, which is therefore disputed.
41.
The reference to the material in the record (Exhibit B-22) does not support the claimed fact, which is therefore disputed.
42.
The reference to the material in the record (Exhibit B-17) does not support the claimed fact, which is therefore disputed.
43.
This allegation is disputed.
44.
The reference to the material in the record (Exhibits B-1 and B-17) does not support the claimed fact, which is therefore disputed.
45.
These allegations are disputed.
46.
The reference to the material in the record (Exhibit B-25) for the allegation that “Plaintiff made repeated requests . . . for a job description and performance evaluation” does not support the claimed fact, which is therefore disputed. Defendants admit that Plaintiff received a performance evaluation dated November 5, 2002, which was partially negative. Exhibit A-6. 47.
The reference to the materials in the record (Exhibit B-25) does not support the claimed fact, which is therefore disputed.
48.
Defendants admit that Goergen mistakenly sent an e-mail to the Plaintiff and others on December 13, 2002, which speaks for itself. Exhibit A-15. In light of the Court’s Order dated March 31, 2005 granting Defendant Goergen’s Motion for Summary Judgment, this fact is immaterial.
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Document 120 Filed 01/11/2006 Page 7 of 26 These allegations are disputed, but as set forth in section II, infra, they are immaterial to the claims on which Defendants seek summary judgment.
50.
Defendants admit that the EEOC issued a Notice of Right to Sue letter to Plaintiff on May 30, 2003. Exhibit B-27. The allegations that the EEOC was “satisfied that Plaintiff had been discrimination and retaliated against” are not supported by the reference to the materials in the record, and are therefore disputed.
51.
These allegations are disputed, but as set forth in section II, infra, they are immaterial to the claims on which Defendants seek summary judgment.
52.
The reference to the materials in the record (Exhibit B-33) does not support the claimed facts, and therefore they are disputed. In addition, as set forth in section II, infra, the allegations are immaterial to the claims on which Defendants seek summary judgment. 53.
The reference to the materials in the record (Exhibit B-33) does not support the claimed facts, and therefore they are disputed. In addition, as set forth in section II, infra, the allegations are immaterial to the claims on which Defendants seek summary judgment. 54.
Defendants admit that at certain times, Dan Bucci was an Officer and Director of Burrillville Racing Association, UTGR, Inc., Burrillville Catering, Inc., and WIL, Incorporated. Exhibit B-6. The reference to the materials in the record (Exhibit B-34) does not support the additional claimed facts, which are therefore disputed.
55.
Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
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Document 120 Filed 01/11/2006 Page 8 of 26 Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
57.
Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
58.
Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
59.
Defendants admit that Bucci may have formed opinions regarding some of Plaintiff’s work for WUSA. Exhibit B-28. The reference to the material in the record (Exhibit B-28) does not support the additional claimed facts, which are therefore disputed. 60.
Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
61.
Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
62.
Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
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Document 120 Filed 01/11/2006 Page 9 of 26 Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
64.
Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
65.
Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
66.
Defendants admit that Bucci was convicted of conspiracy to commit wire fraud, but as set forth in section II, infra, this fact is immaterial.
67.
Regarding the allegation that “Plaintiff had knowledge of Mr. Bucci’s illegal acts and attempted to stop them,” the reference to the material in the record (Exhibit B-28) does not support the claimed fact, which is therefore disputed.
Moreover, the fact is immaterial.
Regarding the remaining allegations, Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
68.
Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
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Document 120 Filed 01/11/2006 Page 10 of 26 Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
70.
Defendants admit that Plaintiff deposed Dan Bucci on November 16, 2005, in Rhode Island, and that Bucci asserted his rights under the United States Constitution in response to certain questions. Exhibit B-34.
II.
A.
ARGUMENT
Plaintiff Cannot Prove That She Was Constructively Discharged.
Plaintiff does not dispute that there is no claim for constructive discharge, standing alone, under Colorado law.
(Plaintiff’s Response to Defendants’ Second Renewed Motion for Summary Judgment, hereinafter “Plaintiff’s Response,” at p. 29.) Nor does Plaintiff dispute that her allegation of constructive discharge must instead be viewed as an element of proof of three of her claims which depend upon a right to continued employment: “unlawful discrimination,” “unlawful retaliation,” and “violation of C.R.S. § 8-2.5-101.
Id.
Plaintiff concedes that Colorado law applies an objective, reasonable person standard for determining whether an individual’s working conditions have become so intolerable that she is forced to resign. Id. Plaintiff simply contends that “the lengthy, hostile, demeaning actions” of both Wembley Defendants support her claim. Plaintiff’s Response, at p. 29.
However, Plaintiff is wrong. First, Plaintiff has not offered a single piece of evidence to suggest that Defendant WINC did anything to affect her working conditions, including rendering them intolerable. As a result, to the extent that Plaintiff’s claims for discrimination, retaliation and statutory retaliation are brought against Defendant WINC, summary judgment should enter
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against her on those claims. Garrett v. Hewlett-Packard Co., 305 F.3rd 1210, 1221 (10th Cir. 2002).
Second, the evidence offered by Plaintiff in support of her constructive discharge claim cannot meet the high threshold established by law. Id. Plaintiff’s (or her attorney’s) selfserving, conclusory allegations must be ignored for purposes of Defendant’s Motions for Summary Judgment. Martin v. Nannie & Newborns, 3 F.3d 1410, 1417-18 (10th Cir. 1993). Disregarding those self-serving, conclusory allegations, Plaintiff offers only the following evidence of constructive discharge:
1.
E-mails and memorandums written by her to her supervisor, Jeff Goergen, in which she questions his judgment, his intelligence, his authority to manage her, his right to critique her performance, and his character, complains about his e-mail communications, demands that he justify his business decisions to her, accuses him of violating company policies, demeans his work, comments sarcastically on his suggestions, admits overreacting to his comments about her, makes unsupported assertions about conspiracies to avoid her, refuses to answer his legitimate business questions, brags about her alleged superior intelligence and job performance, refuses to acknowledge his accolades regarding her performance, makes generalized accusations against him without providing specific examples, uses insubordinate and unprofessional language, asks repeated questions despite having the answers, threatens legal action, mischaracterizes his written communications, fails to respond to his questions, complains about how hard she works and how unappreciated she is, takes credit for results that he achieves, engages in legal posturing to bolster her EEOC charges of discrimination and retaliation, refuses to acknowledge any of her performance problems, and falsely asserts that she has been training him to do his job. (Exhibits B-2, B-13, B-15, B-18, B-21, B-24, and B-25.)
2.
Memorandums and e-mails written by her to her supervisor Ty Howard, in which she makes untrue assertions regarding her job duties, demands excessive pay for job duties she neither held nor performed, demands a job description, inflates her value to the company, demands inclusion in meetings which were not her responsibility, makes demands based on her attorney’s legal advice, and pretends to be unaware of her own job duties. (Exhibits B-11, B-13, B-15, B-17, and B-23.)
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3.
E-mails written by Defendant Goergen to Plaintiff which document her refusal to acknowledge his concerns about her job performance, identify her legal posturing, encourage her to improve her performance instead of spending time defending her actions, explain his concern that she is wasting his time and other employees’ time, instruct her to check the facts before demanding explanations, remind her of the limits of her authority, remind her of company policies, respond to her concerns about the working environment point by point, repeat instructions already given to her about completing time detail information, admonish her for making threats, explain in detail the basis for his business judgment regarding work she had questioned, remind her that it was his job to point out occasions when she was not working efficiently or productively, admonish her for insubordination and point out her work errors, tell her to notify him in advance if she believes deadlines are unrealistic, explain the duties of specific tasks assigned to her, and answer her task-related questions. (Exhibits B2, B-13, B-15, B-21, and B-24.) 4.
E-mails or memorandums written by Defendant Howard to Plaintiff which explain, in detail, the basis for the company’s decision to award her extra pay and its calculation of that pay for additional work she performed between April and June of 2001, as well as a bonus, explain the difference between Plaintiff’s duties and Goergen’s duties and the reason for her correspondingly lower pay, explain that Plaintiff never performed the job duties of Chief Financial Officer in Colorado, respond to her complaints about unequal pay, explain the company’s car lease benefit program, awards of stock options, and reimbursement for cell phone charges and continuing education costs, acknowledge her report that she enjoyed working with Goergen, respond to her requests to be updated on certain issues, explain his business decisions, correct himself when he made an error, grant her requests for medical leave, note his surprise at her failure to complain to him earlier about the supposed long-standing “hostile work environment,” agree to her request that they meet to discuss her concerns, honor her request regarding the timing of her performance evaluation, explain the difference between maternity and unscheduled medical leave, point out her legal posturing, explain that the accounting department operated more smoothly, efficiently and happily during her leave, attempt to reach her to discuss her return to work after her leave, and notify her of her rights under the FLMA. (Exhibits B-11, B-13, B-17, B-18, B-19, and B-23.)
5.
Documents in which Plaintiff herself misrepresented her title as “Acting CFO.” (Exhibit B-5.)
6.
A memorandum of a meeting conducted by Goergen during which all accounting staff, including Plaintiff, were reminded that they were expected to have positive attitudes and not to engage in unprofessional behavior. (Exhibit B20.)
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7.
Memorandums written by Dan Bucci supporting a forensic audit of the company’s accounting practices in light of remarks made by Plaintiff, explaining that Plaintiff was less qualified than other applicants for the Rhode Island CFO position, and commenting that Plaintiff overestimated her own worth to the company and was arrogant. (Exhibit B-28.)
8.
The Court’s Order dated March 31, 2005. Exhibit B-30. The Order held that Goergen’s December 13, 2002, e-mail, which Plaintiff contends was the event that immediately led to her alleged constructive discharge, “does not state that Plaintiff was unable to perform her job or lacked the ability or capacity to properly perform her job. Goergen’s statements only show that Goergen thought Plaintiff saw events in a different light than he or some of their other co-workers. . . . These statements do not render Plaintiff contemptible or ridiculous, or expose her to hatred or contempt. They merely show that Plaintiff and Goergen disagreed on their perceptions of various events.” The Court held that the e-mail was not defamatory. (Exhibit B-30, at pp. 19, 21.)
Taken as a whole, in the light most favorable to Plaintiff, her evidence that her working conditions were intolerable and compelled her to resign is woefully inadequate.
Instead,
Plaintiff’s evidence shows an increasingly disgruntled employee who was unwilling to be supervised by a male and who, despite the company’s efforts to address her concerns, to grant her leave when needed, and to correct her performance deficiencies, overreacted to a message she did not want to hear and voluntarily quit her employment. These circumstances simply cannot add up to a constructive discharge under Colorado law. Tran v. Trustees of State Colleges in Colorado, 355 F. 3rd, 1263-1270 (10th Cir. 2004). “The question is not whether the employee’s resignation resulted from the employer’s actions, but whether the employee had any other reasonable choice but to resign in light of those actions.” Id. “If an employee resigns of her own free will, even as a result of the employer’s actions, that employee will not be held to have been constructively discharged.” Jeffries v. State of Kansas, 147 F. 3rd, 1220, 1233 (10th Cir. 1998).
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Accordingly, Plaintiff’s claims for “unlawful discrimination,” “unlawful retaliation,” and “violation of C.R.S. § 8-2.5-101” should be dismissed against Defendant WINC. In addition, the Court should enter summary judgment in favor of Defendant WUSA with respect to Plaintiff’s contention that she was constructively discharged and preclude Plaintiff from offering evidence in support of those claims relating to her alleged constructive discharge. B.
The Termination Agreement Does Not Require Payment to Plaintiff in the Event of Alleged Constructive Discharge.
Plaintiff asserts that the Court should allow her breach of contract claim to proceed because she was constructively discharged, despite the fact that the Termination Agreement explicitly provides for payment to Plaintiff only “in the event that the Company chooses to terminate your employment.” Exhibit A-11. Plaintiff’s argument ignores the undisputed fact that the company did not chose to terminate her employment, and misinterprets the law as well. The United States Supreme Court’s decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), which is relied upon by Plaintiff, is simply inapplicable here. The case discusses constructive discharge in the context of the sexual harassment claim under Title VII only. Id. at 140. The statement in the opinion which is cited by Plaintiff is black-letter law about the effect of the constructive discharge doctrine; it is not meaningful in the context of interpretation of a specific agreement, as is the case here. Id. at 141. Indeed, the Suders court explicitly distinguished between “an actual termination, which is always effected through an official act of the company” and “a constructive discharge, which need not be.” Id. at 148 (emphasis in original). Plaintiff’s alleged constructive discharge simply falls outside of the
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Leopoldstadt, Inc. v. Fitzgerald, 1992 WL 396330 (D. Kan. 1992), also relied upon by Plaintiff, is equally unpersuasive.2 The case is based upon Kansas law, not Colorado law. Moreover, the contract at issue was an employment contract executed by the parties at the time when the employee began working for the employer. Id., at p. 2. The opinion provides no other information about the terms of the agreement, and reaches the conclusion that under the circumstances present in that case, Kansas would recognize a cause of action for breach of an employment contract due to constructive discharge. Id., at p. 5. Given the lack of explanation of the terms of the agreement at issue and the Court’s reliance on Kansas law, the case has no precedential value here.
C.
The Indemnification Agreement is Not Applicable Here.
For the first time in the history of this lengthy litigation, Plaintiff asserts that her breach of contract claim relates to the so-called “Indemnification Agreement.” Exhibit B-12. Plaintiff strains her credulity by asserting that this “contract” has been breached. By its explicit terms, the agreement indemnifies Plaintiff only against any loss or damage she allegedly suffered as a result of making “certain statements and providing certain information to [Wembley] of a confidential nature for its benefit.” Exhibit B-12 (emphasis added.) Moreover, the agreement contemplates indemnification only for “claim[s] or lawsuit[s] against [Plaintiff],” and obligates Plaintiff both to notify Defendants of such claims and not to settle them without Defendant’s consent. The 2 Pursuant to D.C.COLO.L.R. 7.1(d), a copy of the unpublished opinion is attached hereto as Exhibit 4.
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agreement further permits Wembley “to take over the conduct of any defense to any claim brought against you.” Exhibit B-12.
Colorado law holds that contracts must be interpreted in accordance with their explicit provisions. Town of Silverton v. Phoenix Heat Source Systems, 948 P.2nd 9, 12 (Colo. App. 1997). Moreover, the meaning of a contract is “found by examination of the entire instrument and not by viewing clauses or phrases in isolation.” United States Fidelity and Guaranty Co. v. Budget Rent-a-Car Systems, Inc., 840 P.2nd 208, 213 (Colo. 1992). Finally, a contract is to be interpreted in its entirety “with the end in view of seeking to harmonize and give affect to all provisions so that none will be rendered meaningless.” Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2nd 1310, 1313 (Colo. 1984).
Plaintiff’s interpretation of the Indemnification Agreement violates each of these principles. First, Plaintiff seeks to ignore that the agreement only indemnifies her for providing information to Wembley for its benefit. Her claim in this case relates to damage she allegedly suffered after providing information to a Grand Jury, not to Wembley. Second, Plaintiff ignores the fact that the Indemnification Agreement does not apply to claims brought by her. Finally, Plaintiff’s interpretation of the agreement would render meaningless the numbered terms in the agreement, which require Plaintiff to notify Wembley of claims, not to settle claims without Wembley’s consent, and to allow Wembley to take over the defense of any claims brought against her. By construing the terms of the Indemnification Agreement as a whole, it is clear the agreement does not apply to claims brought by Plaintiff against Defendants, as Defendants’ indemnification of Plaintiff in such circumstances would be utterly ridiculous. Id.
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Case 1:03-cv-01793-EWN-BNB Document 120 Filed 01/11/2006 Page 17 of 26 Notably, Plaintiff fails to present any evidence whatsoever, aside from the agreement itself, to support her contention that it has been breached. Even her self-serving Affidavit contains no statements regarding the purpose or meaning of the Indemnification Agreement, the parties’ intent in executing it, or her understanding of its terms.
Exhibit B-8.
The Indemnification Agreement is simply not applicable here and has not been breached. Accordingly, the Court should enter summary judgment in favor of Defendants on Plaintiff’s breach of contract claim.
D.
All of Plaintiff’s Claims Against Defendant WINC Should be Dismissed Because WINC Was Not Plaintiff’s Employer.
First, it is important to note that Plaintiff makes no attempt to respond to Defendants’ argument that Defendant WINC did not satisfy the definition of “employer” under Title VII. (Defendants’ Brief, at p. 14; Plaintiff’s Response, at pp. 33-37.) Thus, this point is conceded. Moreover, Plaintiff admits that there is no legal authority to support her argument that because Defendant WINC was reorganized after she resigned, she “should have standing to assert claims against any company resembling the companies for which she once worked.” (Plaintiff’s Response, at p. 33.) If the lack of applicable precedent to support this argument does not defeat it, the lack of logical support does. If workers could assert legal claims against entities by which they claim to have been employed simply because of an organizational change after their employment ends, ordinary business practices would be seriously undermined, and corporations would be prevented from taking legitimate legal steps to further their legitimate business goals. There is no law, public policy or other concept which could justify such a restraint on ordinary business functions. Plaintiff’s argument lacks merit.
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Plaintiff asserts that she has adduced sufficient facts to establish that Defendant WINC was her joint employer, pursuant to 42 U.S.C. § 2000 E(b). (Plaintiff’s Response, at pp. 34-35). Plaintiff’s argument ignores binding authority. The Tenth Circuit has held that entities will be treated as joint employers for purposes of Title VII if “they share or co-determine those matters governing the essential terms and conditions of employment. In other words, courts look to whether both entities exercise significant control over the same employees. Most important to control over the terms and conditions of an employment relationship is the right to terminate it under certain circumstances.” Sandoval v. Boulder Reg. Communs. Ctr., 388 F.3rd 1312, 132324 (10th Cir. 2004)(int. cits. om.). Plaintiff has failed to present any evidence that Defendant WINC or its representatives exercised significant control over the terms and conditions of her employment. Instead, she relies on evidence regarding the relationship between the companies (Plaintiff’s Response, at pp. 34-35: common officers, ownership of WUSA by WINC, WINC’s filing of tax returns for WUSA, the loaning and borrowing of money between the companies). None of this evidence suggests that Defendant WINC exercised significant control over the same employees as Defendant WUSA. As a result, the test to establish that Defendant WINC was Plaintiff’s joint employer has not been met. Id. Equally importantly, Plaintiff contends that the Brents letter dated January 1, 1999 regarding severance pay (Exhibit A-11) governed the critical term of her employment – conditions for its termination. The letter refers only to Plaintiff’s “employment with Wembley USA,” not WINC, and is on Wembley USA letterhead. Exhibit A-11. Thus, the evidence which is critical to determination of whether Defendant WINC was her joint employer points in exactly the opposite direction.
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Plaintiff’s evidence of joint employment with Defendant’s WINC and WUSA is inadequate to meet the legal requirements long established in the Tenth Circuit. As a result, the Court should enter summary judgment in favor of Defendant WINC on each of Plaintiff’s claims.
In addition, contrary to Plaintiff’s assertion, the common law of agency does not help her. As indicated in Defendant’s Brief, at pp. 15-16, the evidence overwhelmingly indicates Defendant WINC’s lack of control over Plaintiff’s employment. Lambertsen v. Utah Dept. of Corrections, 79 F.3rd 1024, 1028 (10th Cir. 1996). The fact that Plaintiff may have been confused about which entity was her employer, and the fact that the entities had some connection to each other, are not sufficient to establish that Defendant WINC controlled her employment. The undisputed facts established that she did not have an employment contract with WINC, she was not paid by WINC, she did not receive employee benefits from WINC, she did not receive an employee handbook from WINC, she performed limited duties for WINC, and the only WINC employee from whom she received instruction was Ty Howard, who also could have been acting on behalf of WUSA. (Defendants’ Brief, at pp. 15-16.) As a result, Plaintiff’s claims against Defendant WINC cannot survive summary judgment.
E.
Plaintiff Cannot Establish Outrageous Conduct by Defendants.
Defendants stand by each and every word of their argument in support of summary judgment on Plaintiff’s claim for intentional infliction of emotional distress, as set forth in their Brief at pp. 17-21. Plaintiff’s bland response, in which she makes conclusory allegations that “Defendants Wembley engaged in a pattern of conduct that was intended to cause or recklessly did cause severe emotional distress [and that] Plaintiff communicated her physical illness that
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Accordingly, the Court should enter summary judgment on this claim.
F.
Plaintiff’s Claim for Wrongful Discharge In Violation of Public Policy Must Fail. In an attempt to avoid summary judgment on this claim, Plaintiff argues that: (1) Plaintiff reported questionable accounting practices to her supervisors; and (2) State Board of Accountancy Rules may constitute public policy. (Plaintiff’s Response, at pp. 39-40). Missing from Plaintiff’s argument, however, is any allegation that Defendants directed Plaintiff to perform an illegal act, that they prohibited her from performing a public duty, or that they prohibited her from exercising a right or privilege. (Plaintiff’s Response, at pp. 38-40.) Without any evidence in support of at least one of these contentions, Plaintiff’s claim must fail. Martin Marietta Corp. v. Lorenz, 823 P.2nd 100, 107 (Colo. 1992). Indeed, Plaintiff cannot offer any
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such evidence, as she has admitted that none of the necessary events occurred. (Defendant’s Brief, at pp. 21-24.)
Moreover, Plaintiff has cited no Colorado authority for the proposition that constructive discharge can support her wrongful discharge claim. (Plaintiff’s Response, at p. 40.) For both of these reasons, Defendant’s Motion for Summary Judgment should be granted. G.
Plaintiff’s Claim for Retaliation Under C.R.S. § 8-2.5-101 Must Fail.
Without recitation of any legal authority, Plaintiff contends that the term “solely” in the referenced statute “refers to the employee’s actions, not the employer’s reasons for discriminating against the employee.” (Plaintiff’s Response, at p. 41.) Plaintiff’s argument makes no sense. By its very terms, the statute makes it unlawful for any person “to take any action against its employees, franchisees, or agents or entities under its control or oversight solely for, testifying before a committee of the general assembly or a court of law. . .” Plaintiff’s interpretation of the statute is defied by its plain language.
Plaintiff’s half-hearted attempt to assert that she was “discriminated against solely for her testimony during the Rhode Island Grand Jury proceeding” (Plaintiff’s Response, at p. 41) defies the evidence cited in Defendants’ Brief at pp. 24-29, to the effect that Plaintiff has contended that Defendants discriminated against her not only because of her Grand Jury testimony, but also because of her gender and in retaliation for filing Charges of Discrimination. Id. Plaintiff cannot have it both ways. The statute is limited to circumstances in which an employer takes action against an employee solely because of Grand Jury or other testimony. It simply does not apply in circumstances such as those in this case, where the Plaintiff contends that her employer acted against her from a variety of motivations, including gender-based animosity and retaliation for
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pursuing discrimination complaints. As a result, the Court should enter summary judgment in Defendants’ favor on Plaintiff’s claim for violation of C.R.S. § 8-2.5-101. H.
The Court Should Decline to Decide Defendants’ Motion for Summary Judgment on the Basis of Bucci’s Invocation of His Constitutional Privileges.
In a nutshell, Plaintiff presents the following scenario: Her attorneys took the deposition
of Dan Bucci, a former employee of either or both Wembley Defendants, who had been convicted of conspiracy to commit wire fraud in an unrelated criminal proceeding. Exhibit B-34; 8:17-22; Exhibit A-17; 60:8-16. Plaintiff’s attorneys asked Bucci numerous questions relating to his knowledge of Plaintiff’s employment, her job duties and performance, her qualifications for the Chief Financial Officer positions, her benefits and compensation packages, Goergen’s qualifications, the reasons for Goergen’s hiring, and Defendants’ alleged retaliation against Plaintiff. Exhibit B-34; 1-56. Bucci refused to answer each and every question, on the grounds that doing so would allegedly violate his constitutional rights. Exhibit B-34; 1-56. As a result of his refusal to answer, Plaintiff has asked the Court to invoke an adverse inference against Defendants on every meaningful factual allegation she has made in this case, in order to avoid summary judgment. (Plaintiff’s Response, at pp. 42-52).
If the Court did what Plaintiff requests, it would be engaging in unfairness of the highest degree. As the First Circuit has held, “on a somewhat equal footing, one party’s assertion of his constitutional right should not obliterate another party’s right to fair proceeding.” Serafino v. Hasbro, 82 F.3rd 515, 518 (1st Cir. 1996)(emphasis added.) By his own admission, Bucci is not even a party to this litigation. Exhibit A-17; 60:19-21. Implication of an adverse inference because of a non-party’s testimony is patently unfair. Moreover, Bucci has no interest in the outcome of this case. Exhibit A-17; 60-61: 22-1. In addition, because Bucci’s decision to
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invoke his Fifth Amendment privilege was personal, it cannot be imputed to Defendants. Veranda Beach Club v. Western Sur. Co., 936 F.2nd 1364, 1373-74 (1st Cir. 1991). An individual’s invocation of his Fifth Amendment privilege against self incrimination is a personal decision. It cannot be imputed to a corporation. . . . In a civil case, therefore, an individual’s invocation of a personal privilege against self incrimination cannot, without more, be held against his corporate employer in circumstances analogous to those at the bar.
Id. at 1374.
The Colorado Supreme Court has acknowledged that fairness to both parties is essential in determining to invoke an adverse inference. In Steiner v. Minnesota Life In. Co., 85 P.3rd 135, 141 (Colo. 2004), the Court wrote: “We note the constitutional imperative that a person’s privilege against self incrimination not be too costly, while also acknowledging that such a privilege must not be wielded to unfair advantage over a defendant seeking to defeat a claim brought against him.” In LiButti v. United States, 107 F.3rd 110 (2nd Cir. 1997), the Court applied a multi-factor test to determine whether a former employee’s invocation of the Fifth Amendment could result in an adverse inference against the witness’ previous employer. The Court suggested that, in making this determination, the following factors should be examined: The nature of the relationship between the non-party witness and the defendant; the degree of control which the defendant had vested in the non-party witness in regard to the key facts and general subject matter of the litigation; the compatibility of the interests of the defendant and the non-party witness in the outcome of the litigation; and whether the non-party witness was a key figure in the litigation and played a controlling role in respect to any of its underlying aspects. Id., at 123-124.
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Application of the LaButti factors to this case should result in a determination that creation of the adverse inference would be unfair to the Defendants. The Defendants have no current relationship to Bucci whatsoever. His loyalty is to himself only. Exhibit A-17; 60-61:51. Moreover, Defendants vested no control whatsoever in Bucci regarding the key facts and general subject matter of the litigation. Whereas Defendants have a considerable interest in the outcome of this litigation, Bucci has admitted that he has no interest. (Exhibit A-17; 60-61:221.) Bucci has played absolutely no role in this litigation, other than as a witness compelled to testify by Plaintiff as the result of an Order she obtained. As the LaButti Court pointed out: “Whether these or other circumstances unique to a particular case are considered by the trial court, the overarching concern is fundamentally whether the adverse inference is trustworthy under all of the circumstances and will advance the search for the truth.” Id. Defendants have amassed considerable factual evidence and legal justifications to support their Motion for Summary Judgment and Motion for Partial Summary Judgment. In response, Plaintiff has made her longest, most strenuous argument in an effort to obtain an unfair advantage as the result of a non-party’s constitutional refusal to provide answers to questions related to the case. Utilizing the factors set forth in LaButti, and recognizing the “overarching concern” inherent in this process, the Court should decline to eviscerate Defendant’s legitimate arguments and the Court should decline to invoke an adverse inference against Defendants WINC and WUSA as a result of their former employee’s self-serving refusal to answer questions. In the alternative, the Court should entertain a Motion to Compel Bucci to respond to these questions, instead of accepting his bald assertion that self-incrimination is possible from providing answers. See, e.g., United States v. Schmidt, 816 F.2nd 1477, 1481 (1987), holding
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that in order to invoke the Constitutional protection under the Fifth Amendment that bars compelled self-incrimination, witnesses must demonstrate that they have a reasonable cause to apprehend danger upon giving a responsive answer that would support a conviction or would furnish a link in the chain of evidence needed to prosecute them for the criminal statutes. None of the questions which Mr. Bucci refused to answer could reasonably be construed to subject him to criminal liability. His invocation of the Fifth Amendment and other Constitutional rights was a desperate, selfish act, and nothing more.
For the reasons set forth above, Defendants respectfully request that the Court grant their Motion for Summary Judgment and Partial Motion for Summary Judgment in their entirety. Respectfully submitted this 9th day of January, 2006.
Respectfully submitted,
s/Kristen L. Mix Kristen L. Mix SNELL & WILMER L.L.P.
1200 Seventeenth Street, Suite 1900 Denver, Colorado 80202 Telephone: (303) 634-2000 Facsimile: (303) 634-2020 ATTORNEYS FOR DEFENDANTS WEMBLEY USA, INC., WEMBLEY, INC., AND ROBERT TY HOWARD
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CERTIFICATE OF SERVICE
The undersigned does hereby certify that on this 9th day of January, 2006, a true and correct copy of the foregoing REPLY BRIEF IN SUPPORT OF WEMBLEY, INC.’S SECOND RENEWED MOTION FOR SUMMARY JUDGMENT AND WEMBLEY USA, INC.’S SECOND RENEWED MOTION FOR PARTIAL SUMMARY JUDGMENT was served via ECF electronic filing on the following: Attorneys for Plaintiff Bradley N. Shefrin, Esq.
Melissa Clack, Esq.
ZUPKUS & ANGELL, PC
555 E. 8th Ave.
Denver, CO 80203 Telephone: 303-894-8948 Facsimile: 303-894-0104 Attorneys for Defendant Jeffrey Goergen David H. Stacy, Esq.
DUCKER MONTGOMERY & ARONSTEIN, P.C.
1560 Broadway, Suite 1400 Denver, CO 80202-5151 Telephone: (303) 228-2529 Facsimile: (303) 861-4017
s/Sarah McPherson Sarah McPherson 101164.1
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