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HomeMy WebLinkAbout2024-cv-2336 - O’Ryan v. City of Fort Collins - 019 - Proposed Scheduling OrderIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 24-cv-02336-RMR-NRN LAURELEI O’RYAN, Plaintiff, vs. CITY OF FORT COLLINS, Defendant. PROPOSED SCHEDULING ORDER 1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL The scheduling conference in this matter was held by telephone on November 19, 2024, at 11:00 a.m. before Magistrate Judge N. Reid Neureiter. Plaintiff Laurelei O’Ryan was represented by her counsel Robert M. Liechty, Esq., 1800 Gaylord St., Denver, CO 80206, 303-319-8382. Defendant Fort Collins was represented by its counsel Kendra K. Smith, Esq. and Danyelle Semjonovs, Esq. of Hall & Evans, L.L.C., 1001 17th Street, Suite 300, Denver, CO 80202, (303) 628 -3300. 2. STATEMENT OF JURISDICTION Pursuant to 28 U.S.C. § 1331, this Court has subject matter Jurisdiction over Plaintiff’s claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 1 of 15 2 3. STATEMENT OF CLAIMS AND DEFENSES A. Plaintiff: Plaintiff worked in the water treatment department for the City of Fort Collins, a male-dominated department. She complained that neither she, nor a woman in a sister department, were promoted when they each were the best candidate for the position. She told her supervisor that he should be frightened over how bad this looked, which caused the City to suspend plaintiff. The City eventually terminated plaintiff because of her alleged physical threat of violence (you “should be frightened”) against her supervisor, even though she was a 5’2” tall, 54-year-old woman and he was a 37-year- old man over 6 feet tall. She has brought a claim of discrimination and of retaliation based on her sex. B. Defendant: Defendant denies Plaintiff states any cognizable claim s as a matter of law. Defendant denies Plaintiff is entitled to any of the damages asserted in Plaintiff’s Complaint and Jury Demand (“Complaint”). Defendant relies on its defenses and affirmative defenses asserted in its Answer to Complaint and Jury Demand and Defendant’s Demand for Jury Trial (“Answer”). Plaintiff worked for Defendant in its Water Treatment Department from in or around May of 2018 until the time of Plaintiff’s termination of employment on or around June 15, 2023. At the time of Plaintiff’s hire, she held the position of Utility Worker. In or around June of 2019, Plaintiff was promoted to the position of Plant Operator after completing a competitive hiring process. In or around December 2019, Plaintiff began Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 2 of 15 3 reporting to Tyler Wells, Lead Operator, following the retirement of Mr. Wells’ predecessor. In or around November 2022, Plaintiff, along with three male coworkers, all of whom were employed as Operators, applied for a Lead Operator position left vacant as a result of the resignation of Christopher (“Topher”) Johnson. In addition to Plaintiff, the other applicants for the Lead Operator position were Casey Blosser, Adam Gerdes, and Kelly Caldwell. Defendant selected Mr. Blosser for the Lead Operator position following an interview process conducted by a panel of employees. The individuals on the hiring panel included: (a) Gregg Stonecipher (male), Director of Plant Operations, (b) Leslie Hill (female), Director of Sciences, (c) Scott Foreman (male), Senior Supervisor of Maintenance, (d) Kathleen Ganzer (female), Chemist, (e) Ross Lamb (male), Supervisor of Plant Operations, and (f) Tyler Wells (male), Lead Operator. The hiring panel posed the same interview questions to each candidate for the Lead Operator position, numerical scores were given to each candidate by the panelists, each candidate was discussed by the panelists after the numerical scores were given, and Mr. Blosser ranked highest in numerical scores and all panelists were comfortable with Mr. Blosser’s selection for the role of Lead Operator. Plaintiff was not selected for the position because she did not perform as well as the other candidates during the panel interview process, and Plaintiff ranked third lowest overall in the numerical scores provided by the interview panel. Plaintiff asked Mr. Wells and Mr. Stonecipher why Plaintiff was not selected for the position of Lead Operator, and Mr. Wells and Mr. Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 3 of 15 4 Stoncipher informed Plaintiff that Mr. Blosser had performed better than Plaintiff during the panel interview process. On or around the morning of January 5, 2023, Mr. Wells approached Plaintiff, who was working in the Plant library, to address chlorine levels at the Water Treatment Facility. At this time, an exchange occurred between Mr. Wells and Plaintiff. When Mr. Wells approached Plaintiff to address chlorine levels, Plaintiff became upset with Mr. Wells and stated, “You should be scared.” Mr. Wells asked Plaintiff if she was threatening him, and Plaintiff responded that she was. Mr. Wells felt unsafe and walked away to leave the room to remove himself from the situation. Plaintiff then followed Mr. Wells to the door and slammed the door behind Mr. Wells in a manner that shook the hallway. After Mr. Wells physically removed himself from Plaintiff, Plaintiff called Mr. Wells on the phone and yelled at Mr. Wells at a volume loud enough for Mr. Blosser to overhear Plaintiff yelling at Mr. Wells through Mr. Wells’ phone. Defendant affirmatively states Mr. Wells and Mr. Blosser reported this incident to Ken Morrison, Manager of Plant Operations, and Mr. Stonecipher, and Defendant placed Plaintiff on paid administrative leave for this incident the following day. Following Plaintiff’s placement on administrative leave, a memorandum was issued by Mr. Wells on or about January 23, 2023, recommending the termination of Plaintiff’s employment from Defendant. On or about January 24, 2023, a first pre- decision hearing was scheduled with respect to the recommendation of terminatio n. During the first pre-decision hearing, Plaintiff alleged Defendant was discriminating against her, causing Defendant to then halt the disciplinary process to investigate Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 4 of 15 5 Plaintiff’s allegations. On or about May 1, 2023, following the conclusion of a third -party investigation into Plaintiff’s allegations of discrimination, a revised memorandum was issued by Mr. Wells recommending termination of Plaintiff’s employment . On or about May 11, 2023, a pre-decision hearing was held before Jeremy Woolf, Senior Director of Water Operations, Maryann Fillingim, Human Resources Business Partner, and Ryan Malarky, Assistant City Attorney, to address the recommendation of termination, and during that pre-decision hearing, Plaintiff was present and represented by legal counsel. On or about June 15, 2023, Mr. Woolf issued a Memorandum of Determination, terminating Plaintiff’s employment with Defendant effective the same date. Plaintiff appealed the termination decision to the Utilities Service Area Director and subsequently the City Manager, and an independent hearing officer upheld the termination decision following a post-decision appeal hearing. At no time was Plaintiff subjected to discrimination, retaliation, or any other unlawful conduct by Defendant. All actions taken with respect to Plaintiff’s employment were for legitimate business reasons. 4. UNDISPUTED FACTS 1. Defendant has a Water Treatment Department. 2. Plaintiff and Kathleen Ganzer are female. 3. Plaintiff and Kathleen Ganzer were employed by Defendant. 4. Plaintiff was employed by Defendant from around May 2018 until around June 15, 2023. Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 5 of 15 6 5. Plaintiff reported to Tyler Wells, Lead Operator, in Plaintiff’s role as Plant Operator. 6. Mark Kempton held the role of Director of Plant Operations. 7. Mr. Stonecipher had held the position of Director of Plant Operations since approximately August or September, 2022. 8. Plaintiff was placed on paid administrative leave on or about January 6, 2023 . 9. On or about June 15, 2023, Jeremy Woolf, issued a Memorandum of Determination, terminating Plaintiff’s employment. 5. COMPUTATION OF DAMAGES A. Plaintiff: Plaintiff suffered lost past and future wages based upon a salary of $86,000 plus an estimated 15% worth of benefits paid by the City. She has not yet found a job in her field in part because of the harm to her reputation caused by her firing. She also suffered psychological pain-and-suffering, depression, and humiliation caused by her work conditions, by her termination, and by the fact that she could no longer afford to see her psychologist or psychiatrist. Finally, she will claim her attorney’s fees. B. Defendant: Defendant is not seeking any damages from Plaintiff at this time. Defendant reserves the right to seek its attorney’s fees and costs pursuant to applicable federal law. 6. REPORT OF PRECONFERENCE DISCOVERY AND MEETING UNDER FED.R.CIV.P. 26(f) Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 6 of 15 7 A. Date of Rule 26(f) meeting: The Rule 26(f) meeting was held via telephone on November 8 and 11, 2024. B. Names of each participant and party he/she represented: Robert Liechty, Esq. of The Law Office Cross Liechty Lane PC participated and represented the Plaintiff. Kendra K. Smith, Esq. and Danyelle Semjonovs, Esq. of Hall & Evans, L.L.C., participated and represented the Defendant. C. Statement as to when Rule 26(a)(1) disclosures were made or will be made: Initial Disclosures will be made by November 18, 2024. D. Proposed changes, if any, in timing or requirement of disclosures under Fed. R. Civ. P. 26(a)(1): The parties do not propose any changes to the timing or requirement of disclosures under Fed. R. Civ. P. 26(a)(1). E. Statement concerning any agreements to conduct informal discovery: There is no current agreement to conduct informal discovery. F. Statement concerning any other agreements or procedures to reduce discovery and other litigation costs, including the use of a unified exhibit numbering system: The parties agree to exchange all documents, including correspondence and discovery documents, electronically by email when practicable or by disk, if email is not practicable where documents are available in electronic format. In some instances, to the extent the parties agree, documents may be exchanged in hard copy format. Defendant proposes the taking of depositions remotely by Zoom or similar format videoconference where technically feasible and practical. Defendant proposes the Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 7 of 15 8 parties agree to produce to the other parties any documents obtained via subpoena from a third party or through any open records act (including the Freedom of Information Act and the Colorado Open Records Act) in accordance with the Federal Rules of Civil Procedure no later than 21 days after receipt unless the parties agree to a different period. Defendant will abide by the Court’s Civil Practice Standards regarding exhibit numbering, discovery, and litigation. Defendant requests Plaintiff agree to the same. G. Statement as to whether the parties anticipate their claims or defenses will involve extensive electronically stored information, or that a substantial amount of disclosure or discovery will involve information or records maintained in electronic form: The parties do not anticipate extensive or even substantial electronically stored information (“ESI”). Defendant will retain all information stored electronically and will notify all persons employed by Defendant who have control over such ESI to retain all information throughout the course of this litigation. Defendant agrees that any inadvertently disclosed privileged information must be returned immediately to the disclosing party and may not be used for any reason in this matter. Should ESI be involved, Defendant proposes the parties agree, where possible, to produce documents in searchable PDF format. The parties agree, upon request of another party, where reasonably possible to do so, they will additionally produce documents in their native format and/or allow inspection of documents using any proprietary software possessed by one party and not the other. Such a request will be made in writing specifying the selected format and the basis for the request and the responding party will also respond in writing. Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 8 of 15 9 H. Statement summarizing the parties’ discussions regarding the possibilities for promptly settling or resolving the case: The parties will contact the Court if they mutually determine an Early Neutral Evaluation or a Settlement Conference is appropriate in this matter. 7. CONSENT All parties have not consented to the exercise of jurisdiction of a magistrate judge. 8. DISCOVERY LIMITATIONS A. The parties shall be limited to 5 depositions per side and 25 interrogatories per side plus one interrogatory per affirmative defense. B. Depositions shall be limited per side to seven (7) hours for one deposition and three-and-a-half (3 ½ ) hours for any remaining depositions. C. Requests for production of documents and requests for admissions are limited to 25 of each per side. D. Each side may submit 25 interrogatories. E. Written discovery shall be served by February 28, 2025. F. Other planning or discovery orders: The parties shall adhere to the Sedona Principles regarding disputes relating to electronic discovery. The production of privileged or work-product protected documents, electronically stored information (“ESI”) or information, whether inadvertently or otherwise, is not a waiver of the privilege or protection from discovery in this case or in any other federal or Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 9 of 15 10 state proceeding. This Stipulated Order shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 502(d). Pursuant to Magistrate Judge Neureiter’s Civil Practice Standards, the parties will resolve ordinary discovery disputes in the following manner: 1) The parties will meet and confer in person or by telephone and make a reasonable, good faith effort to resolve or narrow the discovery dispute without the need for judicial intervention. The duty to meet and confer also requires counsel to react timely and be responsive to opposing counsel’s efforts to confer. The parties should discuss their respective positions in detail, providing the legal and factual basis for each position, as well as any compromise position that would be acceptable. 2) If the parties’ efforts to meet and confer are unsuccessful, the parties shall jointly call Chambers at (303) 335-2403 to arrange for a discovery hearing before the Court on a time and date convenient for all parties. The hearing may be conducted telephonically. 3) At least two business days prior to the hearing, the parties shall email Chambers (Neureiter_Chambers@cod.uscourts.gov) a joint statement setting out each party’s position with regard to each dispute. The joint statement should not be filed on the Electronic Court Filing system. In most instances, a single paragraph detailing each party’s position will be sufficient. In no event should each party’s portion of the joint statement exceed five pages (ten pages total). If discovery requests or responses are at issue, the parties shall attach these as exhibits to Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 10 of 15 11 the joint statement. The parties also may attach as an exhibit communications between counsel concerning the dispute at issue. Documents shall not be submitted for in camera review without prior permission from the Court. If the Court issues a ruling, the joint statement (and any exhibits) will be filed and incorporated as an exhibit to the Courtroom minutes, so there is an appropriate record of any decisions. 4) The discovery hearing will be conducted on the record. If the matter is appropriate for immediate adjudication, the Court will issue its order on the record at the hearing. If all issues are not conclusively resolved by the conclusion of the hearing, the Court may order additional briefing on an expedited schedule or may grant leave for filing appropriate motions. In accordance with Magistrate Judge Neureiter’s Civil Practice Standards, if the parties encounter discovery disputes during depositions, they agree to call Chambers with the dispute, including improper deposition conduct, assertions of privilege, and instructions not to answer. Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review of documents, ESI or information (including metadata) for relevance, responsiveness, and/or segregation of privileged and/or protected information before production. 9. CASE PLAN AND SCHEDULE A. Deadline for Joinder Parties and Amendment of Pleadings: January 10, 2025. B. Discovery Cut-Off: April 25, 2025. Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 11 of 15 12 C. Dispositive Motion Deadline: May 23, 2025. D. Expert Witness Disclosure: a. The parties shall identify anticipated fields of expert testimony: 1) Emotional damages 2) Economic losses b. The parties shall be limited to two total experts per side. c. Dates for expert designations: The parties shall designate all experts and provide opposing counsel with all information specified in Fed. R. Civ. P. 26(a)(2) on or before February 7, 2025. The parties shall designate all rebuttal experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before February 28, 2025. Because back and front pay are determined by the Court, and not by the jury, the parties will not be required to designate experts on economic loss/back and front pay unless and until there is a finding of liability by the jury. In the event of a finding of liability by the jury, the Court will set a hearing to determine the amount of back and/or front pay to be awarded to Plaintiff, if any. At the time that hearing is set, the Court, with input from counsel, will set the deadline for designation of an expert witness on economic loss/back and front pay. E. Identification of persons to be deposed: a. By Plaintiff: 1) Shannon Gallegos 2) Tyler Wells 3) Greg Stoneciphifer Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 12 of 15 13 4) Jeremy Wolff 5) A Rule 30(b)(6) representative for the City. b. By Defendant: 1) Plaintiff – 7 hours. 2) Any treating healthcare providers identified by Plaintiff – no more than 3 ½ hours each. 3) Other depositions as appropriate based on disclosures and discovery in this matter. 10. DATES FOR FURTHER CONFERENCES A. Status conferences will be held in this case at the following dates and times: A final pretrial conference will be had at ________ on 2025. A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than seven (7) business days before the final pretrial conference. 11. OTHER SCHEDULING MATTERS A. Identify those discovery or scheduling issues, if any, on which counsel after a good faith effort, were unable to reach an agreement. None B. A trial to a jury is anticipated to last five days. C. No pretrial proceedings will be more efficiently or economically conducted in the District Court’s facilities at 212 N. Wahsatch Street, Colorado Springs, Colorado; Wayne Aspinall U.S. Courthouse/Federal Building, 402 Rood Avenue, Grand Junction, Colorado; or the U.S. Courthouse/Federal Building,103 Sheppard Drive, Durango, Colorado. Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 13 of 15 14 12. NOTICE TO COUNSEL AND PRO SE PARTIES The parties filing motions for extension of time or continuances must comply with D.C.COLO.LCivR 6.1(c). by submitting proof that a copy of the motion has been served upon the moving attorney's client. Counsel will be expected to be familiar and to comply with the Pretrial and Trial Procedures or Practice Standards established by the judicial officer presiding over the trial of this case. With respect to discovery disputes, parties must comply with D.C.COLO.LCivR 7.1(a). Counsel are reminded that any change of contact information must be reported and filed with the Court pursuant to the applicable local rule. 13. AMENDMENTS TO SCHEDULING ORDER The scheduling order may be altered or amended only upon a showing of good cause. Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 14 of 15 15 DATED at Denver, Colorado, this ___ day of November, 2024. BY THE COURT: The Hon. N. Reid Neureiter United States Magistrate Judge APPROVED s/ Robert M. Liechty s/ Kendra K. Smith (by consent) Robert M. Liechty, Esq. Kendra K. Smith, Esq. ROBERT M LIECHTY PC Danyelle Semjonovs, Esq. 1800 Gaylord St. Hall & Evans, L.L.C. Denver, CO 80206 1001 17th Street, Suite 300 Tel: 303-319-8382 Denver, CO 80202 rliechty@crossliechty.com Tel: (303) 628-3300 COUNSEL FOR PLAINTIFF smithk@hallevans.com semjonovsd@hallevans.com COUNSEL FOR DEFENDANT Case No. 1:24-cv-02336-RMR-NRN Document 19 filed 11/12/24 USDC Colorado pg 15 of 15