Opinion
Case No. 2:00-CV-887-K
May 21, 2003
STANLEY J. PRESTON, CAMILLE N. JOHNSON, JUDITH D. WOLFERTS, MARALYN M. REGER, SNOW, CHRISTENSEN MARTINEAU, Salt Lake City, Utah, Attorneys for Defendant J. Douglas Bird.
Gordon Duval, DUVAL, HAWS FREI, Attorneys for Plaintiff Delia Allan.
PRETRIAL ORDER
This matter having come before the Court on May 21, 2003, at a final pretrial conference held before The Honorable Dale A. Kimball, pursuant to Federal Rule of Civil Procedure 16; and Gordon Duval having appeared as counsel for plaintiff, and Stanley J. Preston and Camille N. Johnson having appeared as counsel for defendant, the following action was taken:
1. JURISDICTION VENUE: Jurisdiction of the Court is invoked under 28 U.S.C. § 1331. The jurisdiction of the Court is not disputed and is hereby determined to be present.
Venue was determined by the Court to be proper pursuant to 28 U.S.C. § 1391 (b). Venue is laid in the Central Division of the District of Utah pursuant to 28 U.S.C. § 125.
2. GENERAL NATURE OF THE CLAIMS OF THE PARTIES: Plaintiff claims: (a) that she had a property interest in her part-time employment with the City of Springville ("the City"); (b) that defendant terminated her employment by sending her a letter on June 23, 1997; and (c) that by sending plaintiff the June 23, 1997 letter, defendant deprived plaintiff of her right under the U.S. Constitution to procedural due process.
Defendant claims: (a) that plaintiff constructively resigned her part-time employment with the City by announcing that she intended to take at least six week unauthorized leave beginning June 20, 1997, and by not being at work on June 23, 1997; (b) that defendant did not deprive plaintiff of any right she had under the U.S. Constitution to procedural due process; and (c) that defendant's conduct is protected by qualified immunity.
3. UNCONTROVERTED FACTS: The following facts are established by admissions in the pleadings, by order pursuant to Federal Rule of Civil Procedure 56(d), or by stipulation of the parties through their counsel:
(a) The parties stipulate to jurisdiction and venue.
(b) Plaintiff was a part-time clerical employee with the City from December, 1987 until June, 1997.
(c) Defendant was the former Springville City Recorder.
(d) In May 1994, plaintiff received an updated employment manual from the City. Plaintiff acknowledges that she received the employment manual, read this policy and hilly understood the City's personnel rules and regulations.
(e) Plaintiff did not qualify for FMLA leave because she had not worked the minimum 1,250 hours in the previous year.
(f) City was denying her request for FMLA leave.
(g) Plaintiff did not show up for work on June 23, 1997.
(h) On June 23, 1997, the City sent plaintiff a letter reminding her that she did not qualify for FMLA leave and informing her that if she would like to work for the City in the future, she would need to apply for a posted position. Plaintiff has not worked for the City since June 23, 1997.
(i) In 1997, after the separation of her employment with the City, plaintiff was employed by the Provo City School District, and then the Nebo School District. Plaintiff's employment with the Nebo School District continues to this date.
4. CONTESTED ISSUES OF FACT: The contested issues of fact are:
(a) Whether plaintiff constructively resigned or whether she was terminated from her employment with the City.
(b) If plaintiff's employment was terminated, did plaintiff waive her constitutional right to procedural due process.
(c) If plaintiff's employment was terminated and if she did not waive her constitutional right to procedural due process, did defendant deprive her of her constitutional right to procedural due process.
(d) Whether defendant acted with reckless or callous indifference to plaintiff's federally protected rights.
5. CONTESTED ISSUES OF LAW: The contested issues of law are:
(a) Whether plaintiff constructively resigned or whether she was terminated from her employment with the City.
(b) if plaintiff's employment was terminated, did plaintiff waive her constitutional right to procedural due process.
(c) If plaintiff's employment was terminated and if she did not waive her constitutional right to procedural due process, did defendant deprive her or her constitutional right to procedural due process.
(d) Whether defendant's actions are protected by qualified immunity.
(e) Whether plaintiff is entitled to recover punitive damages against defendant.
(f) Whether defendant is entitled to recover reasonable attorneys' fees against plaintiff, pursuant to Utah Code Ann. § 78-27-56 and Christiansburg Garment Co. v. E.E.O.C, 434 U.S. 412 (1978), on the grounds that this action, in whole or in part, was brought without merit and has not been brought or asserted in good faith.
6. EXHIBITS: The following exhibits are identified and may be offered into evidence at trial:
(a) Plaintiff's exhibits: See Exhibit A.
(b) Defendant's exhibits: (1) June 23, 1997 letter from Douglas Bird to plaintiff (S00137); (2) Springville City Personnel Rules and Regulations (S00190-S00237); (3) plaintiff's signed acknowledgment of the personnel manual (S00006). Defendant reserves the right to use documents for rebuttal and impeachment purposes.
(c) Exhibits received in evidence and placed in the custody of the clerk may be withdrawn from the clerk's office upon signing of receipts therefor by the respective parties offering them. The exhibits shall be returned to the clerk's office within a reasonable time and in the meantime shall be available for inspection at the request of other parties.
(d) Exhibits identified and offered that remain in the custody of the party offering them shall be made available for review by the offering party to any other party to the action that requests access to them in writing.
(e) Unless objection as to authenticity is lodged within two days after exchange of exhibits, the authenticity of offered exhibits will be deemed stipulated. All other objections are hereby reserved at the time of trial when offered. If other exhibits are to be offered, the necessity for which reasonably cannot now be anticipated, they will be submitted to opposing counsel at least two days prior to trial.
(f) Each party shall notify the other party of any exhibit, including demonstrative and summary exhibits, it anticipates using, together with the witness with whom it will be used, at least twenty-four hours before the exhibit is to be offered during direct examination at trial. This requirement shall be subject to an exception for good cause and does not apply to exhibits offered during cross-examination or for impeachment purposes.
7. WITNESSES: In the absence of reasonable notice to opposing counsel to the contrary:
(a) Plaintiff's witnesses:
(i) Plaintiff will call as witnesses: See Exhibit B.
(b) Defendant's witnesses:
(i) Defendant will call as witnesses; Douglas Bird and Doris Weight.
(ii) Defendant reserves the right to read the depositions of any witnesses taken in this case and/or to the right to call at the trial any witnesses that have been deposed in this matter. Defendant also reserves the right to call at the trial any witnesses designated by plaintiff in this case and rebuttal witnesses.
(c) Each party shall provide the other party at least twenty-four hours' notice before it offers deposition testimony at trial. The notice to the other party shall designate the deposition testimony, identified by page and line number. This notice requirement does not apply to deposition testimony offered during cross examination or if the party offering the deposition testimony has good cause for not providing prior notice.
8. REQUESTS FOR INSTRUCTIONS: This case is to be tried before a jury. Requests for instructions to the jury and special requests for voir dire examination of the jury shall be submitted to the court pursuant to DUCivR 51-1. Counsel may supplement or modify requested instructions during trial on matters that arise during trial. The parties anticipate that the jury instructions will require hearing by the court on arguments in support of and in opposition to proposed instructions.
9. AMENDMENTS TO PLEADINGS: No requests to amend pleadings.
10. DISCOVERY: No further discovery is anticipated.
11. TRIAL SETTING: The case is set for four-day trial with a jury, commencing on May 20, 2003, at 8:30 a.m. at Salt Lake City, Utah.
12. POSSIBILITY OF SETTLEMENT: Poor.