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Equal Employment Opportunity Commission v. Western Distributing Co.

United States District Court, D. Colorado

January 3, 2018



          Scott T. Varholak United States Magistrate Judge

         This matter is before the Court on Plaintiff's Opposed Motion for Leave to Add an Aggrieved Individual (the “Motion”) [#98]. The Motion has been referred to this Court. [#99] This Court has carefully considered the Motion, related briefing, the case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, I GRANT the Motion.

         I. Background

         On July 7, 2016, Plaintiff filed its Complaint alleging violations of Title I and Title V of the Americans with Disabilities Act of 1990 (“ADA”) and Title I of the Civil Rights Act of 1991. [#1] Plaintiff brought this action “to correct” Defendant's allegedly “unlawful employment practices on the basis of disability and to provide appropriate relief to Clinton Kallenbach and other aggrieved individuals, who were adversely affected by such practices.” [Id. at 1] Generally, the Complaint alleges that Defendant maintained a “full duty” return-to-work policy that impermissibly required employees to return to work without restrictions, failed to provide reasonable accommodations, imposed an inflexible policy of allowing medical leave of no more than 12 weeks, and retaliated against individuals who sought reasonable accommodations. [Id. at 2, 5-8, 12-18]

         On September 14, 2016, United States Magistrate Judge Nina Y. Wang entered a Scheduling Order setting a December 1, 2016 deadline for Plaintiff to identify aggrieved individuals. [#26 at 23-24] On October 21, 2017, this Court held a discovery hearing primarily concerning the nature of the notice that Plaintiff would mail to Defendant's current and former employees. [#65 at 2-14] Due to a dispute over the language of the notice, Defendant did not object to resetting the deadline for identifying aggrieved individuals. [Id. at 15] As a result, the Court extended the deadline to January 16, 2017. [Id. at 17] The Court warned Plaintiff that it would “only consider an addition [of aggrieved individuals] after that January 16 deadline [] in exceptional circumstances.” [Id. at 18]

         On January 13, 2017, this Court conducted another hearing on Plaintiff's request to extend the deadline to identify aggrieved individuals. [#71] Plaintiff explained that there were 31 individuals who had not received notice and an additional 75 people who had received notice but likely had not had sufficient time to respond. [Id. at 5-7] Plaintiff further explained that there were another 45 people who had indicated that they wanted to participate in the litigation, but who had not yet been interviewed. [Id. at 11] This Court granted Plaintiff's request and extended the deadline to identify aggrieved individuals for 45 days. [Id. at 18-19] But the Court warned Plaintiff that it would not “grant[] any additional extensions of time to contact people. By [the] March 6th [status conference] if [aggrieved individuals] haven't joined in, they're[] out.”[1] [Id. at 19]

         On March 24, 2017, the parties filed a Joint Motion to Stay Discovery so that the parties could pursue mediation [#81], which this Court granted [#83]. Over the next six months, the parties pursued settlement discussions and the litigation remained stayed until September 26, 2017. [## 88, 89, 91, 92] These settlement discussions ultimately failed and on September 26, 2017, this Court entered an Amended Scheduling Order. [## 94, 95] Pursuant to the Amended Scheduling Order, discovery is due by September 28, 2018, and dispositive motions are due by November 27, 2018. [#95 at 34-35] A Final Pretrial Conference is set for February 4, 2019 [id. at 38], a Trial Preparation Conference is set for June 28, 2019, and trial is set to commence on August 5, 2019 [# 96]. To date, Plaintiff has timely identified 63 aggrieved individuals. [#98 at ¶ 4]

         On November 6, 2017, Plaintiff filed the instant Motion. [#98] The Motion seeks to add Lee Sombelon, a former employee of Defendant, as an aggrieved individual. [Id. at ¶ 5] Attached to the Motion is a Declaration purportedly completed by Mr. Sombelon.[2] [#98-1] The Declaration asserts that, on December 2, 2016, Mr. Sombelon completed, signed, and returned to Plaintiff the participation agreement. [Id. at ¶ 4] After not receiving a status update, Mr. Sombelon made several calls to Plaintiff's general number. [Id. at ¶¶ 6-10] Mr. Sombelon did not receive a return call. [Id. at ¶ 11]

         According to the Declaration, in August 2017, Mr. Sombelon again called Plaintiff's general number and referenced the Notice of Litigation letter. [Id. at ¶ 12] This time, Mr. Sombelon was given the number for Plaintiff's counsel in this litigation, Karl Tetzlaff. [Id.] On August 25, 2017, Mr. Sombelon contacted Mr. Tetzlaff and left a voice message. [Id. at ¶ 13] In early September, Mr. Sombelon received a return phone call from an EEOC Legal Technician, Janet Brown. [Id. at ¶ 14] During this conversation, Mr. Sombelon conveyed to Ms. Brown his attempts to participate as an aggrieved individual. [Id.]

         Approximately two months after Mr. Sombelon's call with Ms. Brown, Plaintiff filed the instant Motion. [#98] Defendant filed an opposition on November 27, 2017 [#100], and Plaintiff replied on December 11, 2017 [#102].

         II. Analysis

         While the instant Motion requests leave to add an aggrieved individual, in effect, Plaintiff seeks to modify the Scheduling Order, so as to designate Mr. Sombelon as a witness. [See generally #98] By extension, Defendant's opposition to the Motion amounts to its attempt to preclude Mr. Sombelon from testifying about his particular damages. [See generally #100]

         “Numerous courts have noted . . . that a ‘Scheduling Order is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.'” Washington v. Arapahoe Cty. Dep't of Soc. Servs., 197 F.R.D. 439, 441 (D. Colo. 2000) (quoting Widhelm v. Wal-Mart Stores, Inc., 162 F.R.D. 591, 593 (D. Neb. 1995)). Federal Rule of Civil Procedure 16(b)(4) allows modification of a Scheduling Order “only for good cause and with the judge's consent.” “Demonstrating good cause under the rule ‘requires the moving party to show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay.'” Strope v. Collins, 315 Fed.Appx. 57, 61 (10th Cir. 2009) (quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006)); see also Lehman Bros. Holdings Inc. v. Universal Am. Mortg. Co., LLC, 300 F.R.D. 678, 681 (D. Colo. 2014). Nonetheless, “total inflexibility is undesirable.” Summers v. Missouri Pac. R.R. Sys., 132 F.3d 559, 604 (10th Cir. 1997) (quotations omitted). As a result, “[a]lthough a good cause inquiry will, in most cases, begin with an inquiry into the movant's diligence, there may be other relevant considerations.” E.E.O.C. v. JBS USA, LLC, No. 10-cv-02103-PAB-KLM, 2016 WL 1039907, at *5 (D. Colo. Mar. 16, 2016) (citing 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1522.2 (3d ed. 2015)).

         Initially, the parties dispute the proper standard that the Court should apply in determining whether Plaintiff has established good cause. Plaintiff argues that the Court should apply the four-factor test set forth in Burks v. Okla. Publ'g Co., 81 F.3d 975 (10th Cir. 1996) (“the Burks factors”). [#98 at 3] Defendant, on the other hand, contends that Burks is inapplicable and the Court should consider only the EEOC's diligence in seeking to add aggrieved individuals. [#100 at 3 n.1] The Court agrees with Plaintiff that it may look to the ...

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