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Case 1:03-cv-01793-EWN-BNB
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Edward W. Nottingham Civil Action No. 03-cv-01793-EWN-BNB PATRICIA A. EMERSON, Plaintiff, v.
WEMBLEY USA, INC.; WEMBLEY INC.; and ROBERT TY HOWARD in his personal capacity, Defendants.
FINAL PRETRIAL ORDER
1. DATE OF CONFERENCE
The final pre-trial conference was held on June 27, 2006 at 9:30 a.m. Plaintiff Patricia Emerson is represented by Robert Zupkus and Melissa A. Clack of Zupkus & Angell, P.C., 555 E. 8th Avenue, Denver, Colorado 80202, (303) 894-8948. Defendants Wembley USA, Inc. (“Wembley USA”), Wembley, Inc., and Robert Ty Howard are represented by Kristen L. Mix and Katrin Miller Rothgery of Snell & Wilmer L.L.P., 1200 Seventeenth Street, Suite 1900, Denver, Colorado 80202, (303) 634-2000.
2. JURISDICTION
Jurisdiction is based upon 28 U.S.C. § 1331 as Plaintiffs’claims raise questions under federal statutory law. Accordingly, the Court has subject matter jurisdiction over this action.
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3. CLAIMS AND DEFENSES 1.
Libel Per Se and Slander Per Se Against Howard, Wembley, Inc. and Wembley USA: In response to Plaintiff’s second EEOC Complaint, filed on June 3, 2002, Defendant Wembley USA, Inc. submitted to the Equal Employment Opportunity Commission (EEOC) a Verified Position Statement that stated, “then-new CEO Howard learned that Emerson had been purchasing the company’s tickets to Colorado Avalanche professional hockey games and re-selling them, in violation of company policy.” On August 5, 2002, Plaintiff sent Defendant Goergen an e-mail asking him why Wembley USA, Inc. made such allegations and asserted that both Defendant Goergen and Defendant Howard knew the statements were false. After Plaintiff sent the e-mail, Wembley USA, Inc. amended the Verified Position Statement to extract that statement. Plaintiff maintains that she never purchased hockey tickets from Defendants Wembley.
In addition, Plaintiff claims that Defendant Howard discussed such accusations with several Wembley employees and third-parties.
Plaintiff also maintains that Defendants Wembley and Wembley USA are liable for Howard’s actions under the theory of respondeat superior. Howard’s actions were committed within the course and scope of his employment. Therefore, Defendants Wembley and Wembley USA are vicariously liable for Howard’s defamation. Alternatively, Plaintiff claims that Howard
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Case 1:03-cv-01793-EWN-BNB Document 140 Filed 06/28/2006 Page 3 of 13 is an agent of Defendants Wembley and Wembley USA. In addition, Howard acted within the scope of his authority when he sent made the defamatory statements. Therefore, Defendants Wembley and Wembley USA are liable for Howard’s actions.
Defendants deny that Defendant Howard made any libelous or slanderous statements about Plaintiff, and deny that any allegedly libelous or slanderous statements about Plaintiff were published, as that term is defined by law.
Defendants further deny that plaintiff has incurred any damage caused by any libelous or slanderous statements allegedly made by Defendant Howard.
In addition, Defendants Wembley, Inc. and Wembley USA deny that Defendant Howard was actually or impliedly authorized to make any allegedly libelous or slanderous statements about Plaintiff, and deny that he did so, if at all, as an actual or apparent agent of Defendants.
2.
Sex Discrimination in Violation of Title VII and the Colorado Anti-Discrimination Act Against Wembley USA: Initially, Plaintiff belongs to a protected class – female. She claims that Defendant Wembley USA violated Title VII of the Civil Rights Act of 1964 as well as C.R.S. § 24-34-402 by discriminating against her because of her gender. Plaintiff claims she was provided disparate benefits as compared with the male employees at Wembley USA. Plaintiff was paid at a lower rate than males in comparable positions. In addition, Plaintiff was denied certain benefits, including a company car. Plaintiff also was denied the opportunity to advance within the company. Instead, Jeff Goergen was
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Case 1:03-cv-01793-EWN-BNB Document 140 Filed 06/28/2006 Page 4 of 13 selected to replace the Plaintiff in her position as Acting CFO. Plaintiff applied for the CFO position at Wembley’s Lincoln Park location and again was denied the position. Defendant Wembley USA, instead, hired Mike Cardello. Both Mr. Goergen and Mr. Cardello had significantly less experience in the gaming industry. Although Plaintiff was qualified for the CFO position, she was subjected to adverse employment decisions.
These facts give rise to an inference of unlawful discrimination.
Defendant strongly denies the claims asserted by Plaintiff. Plaintiff never complained of discrimination during her first ten years of employment with Wembley USA; only after she began to believe she was entitled to additional recognition and rewards from Wembley USA did her complaints of discrimination and retaliation begin.
Defendant asserts that Plaintiff was treated fairly and equitably, that she was compensated in a fair and equitable manner, and that others who received higher-level positions and pay did so solely as a result of their qualifications as presented to Defendant, not their gender. Defendant asserts that its treatment of Plaintiff was based upon its legitimate business judgment and not gender-based animus or discrimination. 3.
Unlawful Retaliation in Violation of Title VII and the Colorado Anti-Discrimination Act Against Wembley USA: Plaintiff alleges Defendant Wembley USA retaliated against her for several reasons: (1) Plaintiff confronted Wembley USA with several concerns regarding accounting irregularities, including wage and hour law violations; (2) Plaintiff expressed her concerns to Defendant Wembley
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Immediately following each of these actions, Defendant Wembley USA retaliated against her by reducing her authority to sign checks and approve purchases, stripped her of her management duties and assigned her to place tags on all inventory, instructed her subordinates to work around her, told her that she was unprofessional, insubordinate, and attacked her mental abilities.
Defendant Wembley USA also refused to allow Plaintiff to attend meetings of the Board of Directors despite the fact that she was appointed Secretary of the company, berated her in front of her colleagues, and issued her first negative performance evaluation.
Defendant strongly denies the claims asserted by Plaintiff. Defendant did not retaliate against Plaintiff in any way after her complaints about alleged accounting irregularities and internal control issues and the filing of her EEOC charges of discrimination. Defendant asserts that its treatment of Plaintiff was based upon its legitimate business judgment and not motivated by retaliation. Defendant further asserts that Plaintiff is not entitled to relief under Title VII or the Colorado Anti-Discrimination Act for retaliation based on alleged protected activities not involving allegations of discrimination. Defendant further denies that Plaintiff suffered any adverse employment action, as that term is defined by law, and that Plaintiff incurred damages as a result of any allegedly retaliatory action.
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4. STIPULATIONS The parties stipulate as follows:
1. Patricia Emerson was employed by Defendant Wembley USA from approximately January 1999 until December 2002.
2. Wembley USA is a wholly owned subsidiary of Wembley, Inc.
3. Patricia Emerson was initially hired as a controller in Wembley USA’s accounting department.
4. From 1999 until April 2001, Patricia Emerson reported directly to Wembley USA CFO David Brents.
5. From 1999 until April 2001, Patricia Emerson also reported to Skip Sherman, President and Chief Executive Officer (“CEO”) at Wembley USA.
6. From April 2001 through October 2001, Patricia Emerson reported directly to Robert Ty Howard.
7. Mr. Howard acted as Patricia Emerson’s supervisor until Wembley USA hired Jeff Goergen to serve as Colorado CFO in October 2001.
8. From October 2001 until Patricia Emerson’s separation from Wembley USA in December 2002, Mr. Goergen was Patricia Emerson’s immediate supervisor.
9. Effective December 31, 2001, Mr. Goergen was appointed Wembley USA’s CFO by its Board of Directors.
10. In September 2003, Mr. Goergen was appointed as Wembley, Inc.’s CFO and Treasurer.
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11. On October 25, 2001, Patricia Emerson filed her first Charge of Discrimination against Wembley USA with the Equal Employment Opportunity Commission (“EEOC”), alleging gender discrimination.
12. On June 3, 2002, Patricia Emerson filed a second Charge of Discrimination against Wembley USA with the EEOC, alleging continuing gender discrimination and retaliation.
13. On January 28, 2003, Patricia Emerson filed a third Charge of Discrimination against Wembley USA with the EEOC, alleging continuing retaliation.
14. Patricia Emerson’s performance evaluation dated November 5, 2002 was partially negative.
15. Michael Cardello, a male, was hired as CFO for Wembley USA’s Lincoln Park Rhode Island Operations in August 2001.
16. In August 2001, Patricia Emerson complained to Wembley, Inc. and Wembley USA’s Director, Mark Elliot, and to Mr. Howard about alleged gender discrimination.
17. In May 2003, the EEOC issued a Notice of Right to Sue Letter to Patricia Emerson.
5. PENDING MOTIONS
The following motions are pending:
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Document 140 Filed 06/28/2006 Page 8 of 13 Defendants’Motion for Leave to File Supplement to Motion for Summary Judgment, with attached Supplement to Motion for Summary Judgment. 2.
Defendants’Motion in Limine.
3.
Defendants’Motion to Strike Expert Witness.
4.
Plaintiff may file a Motion in Limine prior to trial. 5.
6. WITNESSES
All contact information for each of the Plaintiff’s witnesses has been previously supplied in Rule 26(a)(1) or (2) Disclosures.
a.
Non-Expert Witnesses
1. Plaintiff: the following witnesses will be present at trial: i. Pat Emerson; and ii.
Janet Meis.
2. Plaintiff: the following witnesses may be present at trial if the need arises: i. Jeff Goergen; ii.
Robert Ty Howard; iii.
Karen Henke; iv.
Frank Provenza; v.
Alan Abrams
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Lisa Brown; and vii.
Dan Bucci.
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3. Defendants: the following witnesses will be present at trial: i. Patricia Emerson, address and telephone number known to plaintiff; ii.
Jeffrey Goergen, 1541 Meadowlark Lane, Golden, CO 80403,
(303) 278-7188; iii.
Robert Ty Howard, 5355 Preserve Drive, Greenwood Village, CO 80121, (303) 741-3213; iv.
Karen Henke, 62000 Dahlia Street, Commerce City, CO 80022,
(303) 288-1591; v.
Debbie Crady, 18130 E. Maplewood Drive, Aurora, CO 80016,
(303) 400-3053.
2. Defendants: the following witnesses may be present at trial: i.
Mark Elliott, 1 Hay Hill, Berkeley Square, London, W1J 6DH, 020 7495 2277.
ii. Claes Hultman, address and telephone number to be provided; iii. Trena Young, 14995 Iliff Place, Aurora, CO 80014, (303) 751-5205;
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Case 1:03-cv-01793-EWN-BNB Document 140 Filed 06/28/2006 Page 10 of 13 iv. Frank Provenza, 3215 Lake Ave., Pueblo, CO 81004 (719) 566-0370; v. Lisa Brown, address will be provided; (720) 940-7145; vi. Alan Abrams, address and telephone number known to Plaintiff; vii. Bill Lee, 62000 Dahlia Street, Commerce City, CO, 80022; (303) 288-1591.
b.
Expert witnesses:
1.
Plaintiff: the following experts will be called as witnesses: i. Dr. Tracy Todd; and ii.
Pat Pacey.
2. Plaintiff: the following experts may be called as witnesses: none.
3. Defendants: the following expert witness may be present at trial if the need arises:
i. Jory L. Laine, The Laine Group, 4330 W. 37th Ave., Suite 100, Denver, CO 80212, (303) 455-9880.
7. EXHIBITS
a. List of Exhibits:
e.
(1) Plaintiff’s: Please see the attached Plaintiff’s Exhibit List. (2) Defendants: Please see the attached Defendants’Exhibit List. Copies of listed exhibits must be provided to opposing counsel no later than five days after the Final Pretrial Conference. The objections contemplated by Fed.R.Civ.P. 26(a)(3) shall
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be filed with the clerk and served (electronic means, hand delivery or facsimile) no later than eleven (11) days after the exhibits are provided.
f.
8. DISCOVERY
Discovery has been completed.
9. SPECIAL ISSUES
Plaintiff has listed Mr. Dan Bucci as a witness that may be called during trial. Mr. Bucci is currently incarcerated in Massachusetts. However, Plaintiff was able to take the preservation deposition of Mr. Bucci and has a videotape that may be shown during trial. To the extent that Defendants assert that Plaintiff’s claim for retaliation is not related to alleged discrimination, Plaintiff hereby asserts and confirms that her claim for retaliation is based upon gender discrimination, which will be shown during the course of trial. Defendants suggest that this Court may wish to consider the following legal issues: (1) whether Plaintiff may recover under Title VII or the Colorado Anti-Discrimination Act for retaliation based on protected activities that are not related to or arising out of alleged discrimination, and (2) whether the alleged retaliatory acts asserted by Plaintiff are “adverse employment actions”under applicable law.
10. EFFECT OF FINAL PRETRIAL ORDER
Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or
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by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Preliminary Pretrial Order and the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings.
11.TRIAL AND ESTIMATED TRIAL TIME; TRIAL PREPARATION
CONFERENCE
a. Trial is to a jury, is expected to last four (4) days, and is scheduled to take place in the United States District Court for the District of Colorado.
b. Trial Date: Monday, August 28, 2006 c. Trial Preparation Conference Date and Time: 3:00 o’clock p.m., Friday, August 18, 2006. At the trial preparation conference, counsel are directed to comply with the Instructions Concerning Preparation for Trial Preparation Conference delivered to all parties at the Final Pretrial Conference.
DATED this 28th day of June, 2006.
BY THE COURT:
s/ Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge
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FINAL PRETRIAL ORDER TENDERED FOR REVIEW:
___/s/Melissa A Clack_________________ Robert A. Zupkus Bradley N. Shefrin Melissa A. Clack Zupkus & Angell, P.C.
555 E. 8th Ave.
Denver, Colorado 80202 mclack@zalaw.com
(303) 894-0104 Attorneys for Plaintiff
___/s/Kristen L. Mix__________________ Kristen L. Mix Katrin Miller Rothgery Snell & Wilmer LLP 1200 17th St., Suite 1900 Denver, Colorado 80202
(303) 634-2000 kmix@swlaw.com Attorneys for Defendants
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