IN THE UNITED STATES DISTRICT COURT FOR …juryverdicts.net/RussPretrial.pdf · All parties were...

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION JOANNE P. RUSS, Plaintiff, vs. No. 2-14-cv-2365- SHM-dkv MEMPHIS LIGHT, GAS & WATER DIVISION, Defendant.

JOINT PRETRIAL ORDER

Pursuant to Rule 16 of the Federal Rules of Civil Procedure and the previous Orders of

the Court, the Pre-Trial Conference was held on September 16, 2016 at 10:00 am, before the

Honorable Samuel H. Mays, United States District Judge, for the Western District of Tennessee.

All parties were represented by counsel at the Pre-Trial Conference. After discussions among

counsel with this Court of the issues that will assist the parties and the Court in the orderly

disposition the case, the Court hereby enters this Pretrial Order.

I. PARTIES

Plaintiff: Joanne P. Russ (“Plaintiff” or “Russ”)

Defendant: Memphis Light, Gas and Water Division, a division of the City of Memphis, Tennessee (“Defendant” or “the Division”)

II. JURISDICTION

The Division asserts that, to the extent any actions complained of by Plaintiff occurred

more than 300 days prior to Plaintiff’s February 11, 2014 Charge for Discrimination or outside

Case 2:14-cv-02365-SHM-dkv Document 136 Filed 09/26/16 of 30 PageID 1878

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the timeframe within which Plaintiff has identified as the date range that the discrimination took

place, this Court lacks subject matter jurisdiction with regard to said alleged actions. Other than

as stated above, the Parties agree that no jurisdictional issues exist.

III. PENDING MOTIONS

The following are pending motions by the parties:

The Parties anticipate filing motions in limine.

IV. SHORT SUMMARY OF THE CASE

Plaintiff Joanne Russ alleges that, in 2013, she requested that her employer, Defendant

Memphis, Light, Gas and Water, provide her with the accommodation of working no more than

40 hours per week, with limited exceptions. The Division alleges that, per Plaintiff’s sworn

statements, this accommodation request was originally made and granted in 2009. The Division

further alleges that the accommodation granted to Plaintiff in 2009 was never rescinded and was

always honored. Plaintiff contends that she was not accommodated and was constructively

discharged.

V. CONTENTIONS OF THE PARTIES

A. Contentions of Plaintiff:

Plaintiff started working for Defendant January 17, 1977 as a Clerk in the Management

Accounting Department.

Plaintiff was a dedicated and proud employee of MLG&W. She devoted her entire career

to MLG&W. She completed the Certified Compensation Professional Program in 1994. In

2001, she completed the Executive Training Program. In 2003, she completed her Master's

degree in Human Resources. Thus she was highly qualified for upper management positions.


3

Plaintiff had been working extraordinary hours, in a high stress environment trying to

accomplish all of the area's goals despite budget constraints. Her health was deteriorating. The

harassment was both severe and pervasive.

In March 2009, Plaintiff was diagnosed with Diabetes Type 2. In July 2009, Plaintiff had

a stroke, which affected the left side of her brain. She was on sick leave until October 2009.

Plaintiff gave Defendant notice of these medical events/conditions. She was returned to work in

October under two conditions: (1) she must limit her work hours to no more than 40 hours per

week, and (2) she must get eight hours of sleep at night.

The Acting VP of HR, on November 10, 2009, sent a letter to Plaintiff's doctor, asking

him to explain why Plaintiff could not work more than 40 hours per week. Said inquiry violated

the provisions of the Americans with Disabilities Act, FMLA regulations/standards, and HIPAA.

Plaintiff requested two more professionals to be added to her area to pick up the work

that Plaintiff was performing alone and without adequate support, pay and title.

On February 11, 2013, Plaintiff received discipline, namely an Oral Reprimand. Said

reprimand was not deserved. The VP of HR continued to put pressure on Plaintiff to work long

hours, and to violate the required accommodations per her doctors' orders. Said discipline was

based on her disability and requests for accommodations.

In August 2013, Plaintiff went on vacation. During her absence the President and CEO

of MLG&W printed Plaintiff's attendance records, and distributed them at the Annual Budget

Review Committee meeting, despite the confidential nature of said records. He alleged that

Plaintiff asked for the two additional employees because Plaintiff was “never at work.”

Upon Plaintiff's return from vacation, she was told by the VP of HR about Collins'

accusations. Plaintiff responded that her attendance records showed that she always worked at


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least 40 hours each week. She requested a copy of the report as given to the Committee, but it

was never given to her. Her work hours were changed to begin at 8:30 a.m., despite that Plaintiff

needed a start time of 9:30 a.m., one of the accommodations requested by her doctors due to her

stroke.

Plaintiff compiled data on other managers and supervisors at MLG&W who were not

working 40 hours weekly, and who did not work 8:30 a.m. to 5:00 p.m. Plaintiff gave that

information to VP of HR. Receiving no response, Plaintiff on September 18, 2013 went to the

Labor and Employee Relations Department and filed an internal complaint of discrimination, on

the basis of disabilities. Her blood pressure readings were markedly higher. She was having bad

headaches and other symptoms consistent with great stress and overwork, threatening another

stroke.

Immediately following the filing of the internal complaint, the pressure on Plaintiff

became unbearable.

Plaintiff was required to attend a meeting on October 24, 2013 with HR personnel,

including MLG&W's nurse. They discussed her medical history and treatment, her problems

with concentration, her inability to multi-task, the effects on her from stress at work, the doctor's

letter, and the requests for reasonable accommodations. Plaintiff's doctor replied on November

14, 2013, to questions, addressing the need for accommodations, which was followed by further

requests for information and further responses from the doctor. Defendant was never satisfied no

matter what the doctor said.

On January 27, 2014, the HR Compliance Coordinator sent Plaintiff a letter denying her

requests for reasonable accommodations. Plaintiff became quite upset, and became frantic. She


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was fearful that she was on the verge of another stroke. She reasonably felt she had no choice

but to retire early. If she did not, she might well lose her life.

She signed her retirement papers on February 10, 2014. This was not a voluntary

retirement. Instead, this was a constructive discharge. Her last day of work was February 14,

2014.

Defendant, through its agents, representatives and employees, intentionally, willfully and

knowingly discriminated against Plaintiff in the terms and conditions of her employment based

upon unlawful disability discrimination in violation of the Americans with Disabilities Act.

B. Contentions of Defendant:

Plaintiff began working at the Division in 1977. She took advantage of the educational

and training opportunities afforded by the Division and, over the course of her career, she rose

from the position of clerk to the Supervisor of Compensation. Consistent with the retirement

plans she had discussed with her physicians and Division employees, Plaintiff retired from the

Division on February 14, 2014 with thirty-seven (37) years of service and a well-documented

history of tardiness and attendance problems dating back to the 1980’s.

In 2009, Plaintiff suffered a stroke. When she was able to return to work, she requested

an accommodation that her schedule generally be limited to 40 hours per week, per her doctor’s

orders. The Division granted this accommodation request in 2009. There is no dispute as to

whether or not the Division granted Plaintiff’s request that her schedule generally be limited to

40 hours per week. In her Charge for Discrimination, which Plaintiff signed “under penalty of

perjury,” Plaintiff stated: “On November 20, 2009, I requested an accommodation regarding my

disability and was granted the request (work 40 hours per week).”1 From 2009 until the end of

1 MLGW 000005.


6

her employment, Plaintiff, with relatively limited exceptions, maintained a 40 hour (or less) work

week schedule. Thus, not only did the Division grant Plaintiff the accommodation of a 40 hour

work week in 2009, it never rescinded or violated this accommodation.

On October 18, 2013 Plaintiff filed another ADA accommodation request with Eric

Conway, the Division’s Human Resources Compliance Coordinator and a member of the

Division’s ADA Committee which evaluates all accommodation requests. Plaintiff’s request

identified “stress” as her disability and stated that driving to work so as to arrive at 8:30 a.m. was

stressful. In addition, Plaintiff requested that the Division hire additional employees to assist her

in completing all of her assigned duties.

In the interactive process that followed, Plaintiff never requested an accommodation that

her work schedule be limited to 40 hours per week. Indeed, there would have been no need for

her to request this accommodation. As noted above, per Plaintiff’s sworn statement, this

accommodation had already been granted in 2009. The fact that this accommodation had already

been requested and granted was briefly discussed during the interactive process. When Plaintiff

was specifically asked what accommodations she was requesting, she only mentioned that she

wanted to arrive at work late and that she wanted the Division to hire additional personnel to do

her job.

Indeed, in her Charge of Discrimination, Plaintiff never says that, in 2013, she requested

an accommodation that her work schedule be limited to 40 hours. Instead, her sworn statement is

as follows: “On October 18, 2013, I requested another accommodation (to have my report time

changed from 8:30 a.m. to 9:30 a.m.”2 The only mention of a 40 hour work week restriction in

Plaintiff’s Charge of Discrimination is the above-quoted sentence in which she states, under

2 Id.


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oath, that the accommodation had been granted in 2009. Moreover, Plaintiff’s Charge of

Discrimination is devoid of any indication that Plaintiff is asserting a violation of the ADA in

connection with the 40 hour work week restriction. Therefore, even if Plaintiff had requested in

2013 that her work schedule be limited to 40 hours (which she did not), and even if the Division

had denied this request (which it did not – it is undisputed that the accommodation was granted

in 2009), Plaintiff clearly failed to exhaust her administrative remedies in this regard by failing to

raise this issue in her Charge of Discrimination.

Mr. Conway conducted the standard “interactive process” with Plaintiff on October 24,

2013 to discuss her disability and her need for assistance. Vernica Davis, the Division’s Nurse

and Medical Services Coordinator was also present at the meeting. During the interactive

process, Plaintiff reiterated that her disability was stress, and also asserted that stress made her

unable to think. Plaintiff told Mr. Conway and Ms. Davis that, with regard to her 2009 stroke,

she had fully recovered from all but the memory and multi-tasking problems, and that she was

functioning at 90% as compared to prior to the stroke.

Tellingly, Plaintiff also revealed to Mr. Conway and Ms. Davis that her main source of

work stress was simply not having enough support staff to run the Compensation Department, a

complaint that Plaintiff had made a number of times over the years. When Mr. Conway went

through the eleven (11) job duty categories listed on Plaintiff’s job description, Plaintiff

identified two (2) of the categories for which she needed assistance and each requested

accommodation required the Division to assign “more people” to help out in the Compensation

Department. (SOF ¶49.)

Following its meeting with Plaintiff, the Division evaluated Plaintiff’s two

accommodation requests (a late arrival time and additional staff). The Division, however, never


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received sufficient evidence from Plaintiff or her physicians to establish that Plaintiff had any

disability requiring accommodation under the ADA. Plaintiff’s primary care physician, Dr.

Robert McEwan, exchanged written correspondence with Ms. Davis, but he notably came short

of endorsing her claims of traffic-induced stress as a medical disability requiring employer

accommodation.

In Dr. McEwan’s first letter to Ms. Davis dated November 14, 2013, he generally referred

to Plaintiff’s unspecified “health issues” and stated that allowing Plaintiff to arrive at 9:30 a.m.

“may alleviate some of her stress.”3 Dr. McEwan went on to suggest that Plaintiff would benefit

from working no more than 40 hours per week, but declined to state that such a restriction was

medically necessary. In his November 14, 2013 letter, Dr. McEwan did not notify the Division

that Plaintiff’s problems were caused by stress or that it was medically necessary for her to have

a 9:30 a.m. arrival time.

Ms. Davis followed up with Dr. McEwan in a November 25, 2013 letter in which she

asked him to “clarify if ‘stress’ is [Plaintiff’s] disability and related to the suggestion/request or

work shift change and forty hour work week restriction.” Ms. Davis also asked Dr. McEwan to

clarify if Plaintiff’s requested accommodations were medically necessary. After over 4 weeks

had passed and Dr. McEwan had not responded to Ms. Davis, Mr. Conway wrote to Plaintiff on

January 9, 2014 to notify her of the deficiencies with Dr. McEwan’s first letter and to afford her

the opportunity to obtain additional medical proof to satisfy the deficiencies.

Dr. McEwan subsequently sent Ms. Davis a non-responsive letter dated January 14, 2014,

in which he identified, for the first time, two medical conditions Plaintiff was suffering from:

cholesterol and diabetes, but he did not describe any other conditions Plaintiff was suffering

3 MLGW 000011.


9

from in 2013. Dr. McEwan advised that Plaintiff was taking medicines for these conditions, in

addition to several vitamins and a blood thinner. Although Dr. McEwan briefly mentioned, in his

January 14, 2014 letter to Vernica Davis, Plaintiff’s 2009 stroke and her concurrent treatment for

hypertension, he drew no connection at all between Plaintiff’s work schedule accommodation

requests and either her 2009 or 2013 medical conditions. Instead, Dr. McEwan’s rationale for

why the Division should grant Plaintiff’s accommodation request was to allow her and the

Division to “co-exist until [Plaintiff] retires.”4 The phrase “medically necessary” is not to be

found in either of Dr. McEwan’s letter to Ms. Davis, and he made no mention of Plaintiff’s

request to have additional staff members as a part of her accommodation in his letters or his

deposition testimony.

Prior to the November 11, 2013 office visit at which Plaintiff requested that Dr. McEwen

write what would be become his November 14, 2013 letter, he had not seen Plaintiff in nearly

two years, since December 24, 2011. Further, based on Dr. McEwen’s own testimony, he never

instructed Plaintiff that she should arrive at work at a certain time nor did he notify the Division

that Plaintiff suffered from a disability that made it medically necessary for her to arrive at work

at particular time. Rather, Dr. McEwan was not opposed to Plaintiff arriving at work earlier than

8:30 a.m. in order to avoid rush hour traffic, and even suggested that arriving earlier would be

better for Plaintiff than her requested arrival time of 9:30 a.m.

On January 27, 2014, the Division sent Plaintiff its response to her accommodation

requests. In this response, the Division identifies the two accommodations that Plaintiff

requested as being “more staff” and that her “start time be adjusted from 8:30 a.m. to 9:30 a.m.”5

The Division then notes that, despite repeated requests, Plaintiff’s physician did not confirm that

4 Id. 5 MLGW 000009.


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Plaintiff had a disabling condition. Although Plaintiff’s physician acknowledged Plaintiff’s 2009

stroke, he “did not disclose any disabling effects from this condition or medical restrictions.”6 As

such, the Division denied Plaintiff’s two requested accommodations, and this Court has already

ruled that the denial of these requested accommodations did not violate the ADA.7

Tellingly, the Division’s response to Plaintiff’s accommodation requests does not contain

any mention of a 40 hour work week restriction. There was no need for this restriction to be

referenced in the Division’s response because, as Plaintiff has admitted in her sworn Charge of

Discrimination, this request had been granted in 2009. The Division’s silence with regard to the

40 hour work week restriction is further proof that Plaintiff did not request this accommodation

in 2013. If Plaintiff had requested this accommodation in 2013, and the Division failed to

respond to this request while addressing two other requests, surely Plaintiff would have brought

this omission to the Division’s attention. Plaintiff’s failure to do so, combined with her failure to

identify a denial of a 40 hour work week restriction in her sworn Charge of Discrimination has a

basis of her claim, demonstrates that she did not make this request in 2013 and that the request

she had made in 2009 had been granted.

On February 10, 2014, Plaintiff submitted paperwork to effect her retirement from the

Division. Plaintiff had long been planning on retiring and had discussed her plans to retire in late

2013 or early 2014 with both her doctors and other of the Division’s employees. Indeed, during

the interactive process, Plaintiff stated to the ADA Committee that she intended to retire at the

end of 2013 or in January of 2014. Thus, the timing of Plaintiff’s retirement was entirely

consistent with plans she had previously discussed with several others and was unrelated to the

6 Id. 7 Order, April 21, 2016 (Dkt. No. 111), pp. 23, 26.


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denial of her request to come to work late and for the Division to hire additional employees to

assist Plaintiff in performing her job duties.

Plaintiff filed her Charge of Discrimination on February 11, 2014, the day after she

submitted her retirement paperwork. The EEOC issued Plaintiff a “Right to Sue” letter just 19

days later, on February 20, 2014, finding that it was “unable to conclude that the information

obtained establishes violations of the statutes.”8

On the date of Plaintiff’s actual retirement, the Division threw a large party in her honor.

Plaintiff happily attended the party, as did Plaintiff’s supervisors and Jerry Collins, President and

C.E.O. of the Division. At her retirement party, many people spoke highly of Plaintiff, and

Plaintiff spoke glowingly of her time at the Division and of her supervisors. Plaintiff even

volunteered to return after her retirement to assist the Division and her replacement.

Based on the foregoing, Plaintiff cannot state a prima facie case of ADA discrimination

against the Division. Plaintiff failed to submit adequate evidence that she was disabled. She

failed to establish that she is “qualified” because she stated that the Division’s allowing her to

arrive late and hiring additional staff were necessary in order for her to perform her essential job

functions, but this Court has already ruled that the Division did not violate the ADA in denying

these requests. She did not request a 40 hour work week restriction in 2013, so the Division

could not have denied the alleged request. Even if she had made the request for a 40 hour work

week restriction in 2013, the Division had already granted the request in 2009, and this grant was

never rescinded and was always honored. Finally, Plaintiff is unable to prove damages, as she

retired with a substantial retirement package, in accordance with plans she had been discussing

well before the January 27, 2014 denial of her request for additional staff and a 9:30 start time. In

8 MLGW 000007.


12

short, Plaintiff voluntarily retired after a long, productive career at the Division, during which the

Division treated her with dignity and respect and in full accord with all of its legal obligations.

VI. STATEMENT OF UNCONTESTED FACTS

1. Plaintiff began working full-time for the Division on or about January 17, 1977 as

a Clerk in the Management Accounting Office and eventually became Supervisor of what is now

known as the Compensation and Human Resources Information Systems Department (the

“Compensation Department”) in 1999.

2. Throughout her tenure at the Division, more than one of Plaintiff’s superiors

notified Plaintiff either verbally, in writing or both, that Plaintiff was arriving at work later than

the acceptable time.

3. Plaintiff’s direct report from 2010 to 2014 was Dr. Von Goodloe, Vice President

of Human Resources.

4. In 2009, Plaintiff requested and received an accommodation that, with limited

exceptions, she would only be required to work 40 hours per week.

5. On February 11, 2013, Plaintiff received an oral reprimand from Von Goodloe,

the Vice President of Human Resources regarding Plaintiff’s tardiness.

6. Plaintiff and Dr. Goodloe met on September 3, 2013 to discuss Plaintiff’s arriving

at work no later than 8:30 am; Plaintiff did not mention an accommodation request at the

September 3, 2013 meeting.

7. On October 24, 2013, Eric Conway conducted the standard “interactive process”

with Plaintiff and Vernica Davis, the Division’s Nurse and Medical Services Coordinator, to

discuss Plaintiff’s alleged disability and desired accommodations.


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8. When Mr. Conway went through the eleven (11) job duty categories listed on

Plaintiff’s job description, Plaintiff identified two (2) of the categories for which she required

assistance in order to perform her essential job functions. Each requested accommodation

consisted of the Division assigning “more people” to help out in the Compensation Department.

Plaintiff also requested to arrive at work no earlier than 9:30 am.

9. During 2013, Plaintiff was under the care of three main doctors: Dr. McEwan

(for general primary care); Dr. Dwight Dishmon, MD (for high blood pressure); and Dr. Maher

Ghawji (for diabetes).

10. On January 6, 2014, Plaintiff went to the EEOC office to give an intake interview

in connection with her claim for discrimination.

11. Plaintiff signed her retirement paperwork on February 10, 2014 and retired from

the Division on February 14, 2014 with thirty-seven (37) years of full-time service, including

fifteen (15) years as Supervisor of the Compensation Department.

12. On February 11, 2014, Plaintiff filed Charge of Discrimination No. 490-2014-

0061 (the “Charge”) with the Equal Employment Opportunity Commission (the “EEOC”).

13. In 2013 and in prior years, Plaintiff told her superior, Dr. Von Goodloe, on

several occasions she was contemplating retiring from the Division in order to devote more time

to her husband’s care and to travel.

VII. CONTESTED ISSUES OF FACT

A. For the Plaintiff:

1. Whether Plaintiff is a qualified individual with physical and mental impairments,

which substantially limit her in one or more major life activities.


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2. Whether the Division perceived that Plaintiff had physical and/or mental

impairments, which substantially limit her in one or more major life activities.

3. Whether the Division refused to allow Plaintiff the accommodations requested by

her doctor for her real and/or perceived disability.

4. Whether the Division offered Plaintiff any accommodations for her real or

perceived disability conditions.

5. Whether Plaintiff was capable of performing the essential functions of her job –

Supervisor of Compensation/HRIS from 2009 through her retirement.

6. Whether Dr. McEwan returned Plaintiff to fully return to work in

September/October of 2009.

7. Whether the accommodations proposed by Dr. McEwan were reasonable.

8. Whether the Division unlawfully discriminated against Plaintiff when it failed to

accommodate her return to work and her continued work as requested by Dr. McEwan.

9. Whether Plaintiff suffered an adverse employment decision because of her

disability.

10. Whether Plaintiff voluntarily resigned or if she was constructively discharged in

February, 2014.

11. Whether Plaintiff lost (back pay) salary and benefits on account of the Division's

refusal to accommodate her request for accommodation.

12. Whether Plaintiff has lost (back pay) salary and benefits after being constructively

discharged, from February 2014, to date of trial, and if so, the amount.


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13. Whether Plaintiff as a result of discrimination suffered pain and suffering,

embarrassment, humiliation, severe emotional distress, depression, mental anguish, anxiety

attacks, and physical symptoms, proximately caused by stress on the job.

B. For the Defendant:

1. Whether stress is a disability as defined by the ADA.

2. Whether, in 2013, Plaintiff suffered from a disability that limited one or more

major life activities.

3. Whether Plaintiff presented the Division with sufficient medical evidence to

demonstrate that Plaintiff was disabled in 2013.

4. Whether, in 2013, Plaintiff requested an accommodation of a 40 hour work week

restriction, with limited exceptions.

5. Whether, in 2013, Plaintiff was “qualified” under the ADA for her job.

6. Whether, from April 17, 2013 through February 11, 2014, the Division requested

or forced Plaintiff to work in excess of forty hours in a week, other than on limited exceptions.

7. Whether, from July 1, 2013 through January 27, 2014, the Division requested or

forced Plaintiff to work in excess of forty hours in a week, other than on limited exceptions.

8. Whether Plaintiff was constructively discharged.

9. Whether Plaintiff mitigated her damages.

10. Whether Plaintiff is entitled to damages.

VIII. CONTESTED ISSUES OF LAW

1. Whether Plaintiff is entitled to equitable relief and/or injunctive relief to redress

the discriminatory practices of MLGW.

2. Whether, as a matter of law, stress is a disability recognized by the ADA.


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3. Whether Plaintiff’s claims are barred by application of the statute of limitations.

4. Whether Plaintiff’s claims are barred as a result of Plaintiff’s failure to exhaust

her administrative remedies.

5. Whether Plaintiff had a duty to mitigate her damages, i.e. return to work

elsewhere given her age and her fully vested retirement rights from the Division.

IX. EXHIBITS

Before trial, the parties will exchange the potential exhibits they may use during the trial

in this case. A combined list of the parties’ potential exhibits is attached as Exhibit “A.” Where

noted on Exhibit A, the parties have stipulated to the authenticity of certain of the potential

exhibits. The parties each reserve the right to object to exhibits for lack of foundation, relevance

or hearsay depending on the context in which the other party attempts to offer the exhibit at trial

and the witness through whom it is offered. The parties’ also reserve the right to object to

exhibits for relevance after the Court rules on motions in limine.

X. WITNESSES

A. Plaintiff’s Will Call Witnesses:

Plaintiff will call, in the absence of reasonable notice to opposing counsel to the contrary,

the following witnesses:

1. Joanne Russ

B. Plaintiff’s May Call Witnesses:

Plaintiff may call the following witnesses:

1. Eric Conway

2. Jerry Collins

3. Linda Peppers


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4. Sharon Cheeseman

5. Steve Day

6. Vernica Davis

7. Valerie Whitlow

8. Von Goodloe

9. Joyce Taylor

10. Maria Culp

11. Lakeshia Seymore

12. Marcus Tabor

13. Patricia Partee

14. Any witness listed by Defendant

15. Any witness needed for rebuttal

C. Defendant’s Objections to Plaintiff’s Witnesses:

1. Linda Peppers – The Division objects to Ms. Peppers on the basis that her

testimony regarding the Oracle Project is not relevant to this lawsuit.

D. Defendant’s Will Call Witnesses:

Defendant will call, in the absence of reasonable notice to opposing counsel to the

contrary, the following witnesses:

1. Joanne Russ

2. Sharon Cheeseman

E. Defendant’s May Call Witnesses:

Defendant may call the following witnesses:

1. Ira Carbage


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2. Jerry R. Collins, Jr.

3. Maria Culp

4. Steve Day

5. Dwight Dishmon, M.D. (live or via video/transcribed deposition)

6. Custodian(s) of Record for the Division

7. Maher Ghawji, M.D. (live or via video/transcribed deposition)

8. Rutha Griffin

9. Marcia Mason

10. Kerry McCowan

11. Robert C. McEwan, M.D. via video/transcribed deposition)

12. Patricia Partee

13. Tracey Smith

14. Joyce Taylor

15. Eric Conway

16. Vernica Davis

17. Von Goodloe

18. Lakiesha Seymour

19. Marcus Tate

20. Valerie Whitlow

21. Any witness identified or called by Plaintiff

22. Any witness for rebuttal or impeachment either live or by deposition


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F. Plaintiff’s Objections to Defendant’s Witnesses:

None at this time.

XI. DEPOSITION TESTIMONY

The parties may use deposition testimony for purposes of impeachment, and the parties

reserve the right to designate additional deposition testimony after the Court’s rulings on the

parties’ pending motions.

A. Plaintiff’s Deposition Designations:

Plaintiff may present the deposition of Robert C. McEwan, M.D.

B. Defendant’s Deposition Designations:

The Division may present the depositions of Plaintiff, Maher Ghawji, M.D., Dwight

Dishmon, M.D., and/or Robert C. McEwan, M.D.

XII. TRIAL

This case is set for a jury trial on Monday, September 26, 2016, at 9:30 a.m. The parties

estimate the trial of this action will take 5-7 days.

The parties will submit to the Court proposed jury instructions, any special questions for

voir dire examination of the jury venire, and any special interrogatories or verdict forms that

counsel wish to submit to the jury at the Pretrial Conference.

XIII. DAMAGES

A. Plaintiff’s Statement Regarding Damages:

Plaintiff has a claim for back pay. Plaintiff requests reinstatement. If the Court denies

reinstatement, then Plaintiff asserts a claim for front pay, to age 65 (May, 2018).


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Plaintiff asserts a claim for compensatory damages for pain and suffering, both physical

and mental, embarrassment and humiliation.

Plaintiff will seek an award of attorneys’ fees and expenses pursuant to 42 U.S.C. Section

1988 if she prevails.

B. Defendant’s Statement Regarding Damages:

The Division denies that Plaintiff is entitled to any recovery. In the alternative, to the

extent Plaintiff is awarded damages, said damages should be reduced to reflect Plaintiff’s

pension and retirement payments, as well as any other amounts received by Plaintiff since her

retirement and any other mitigating factors that the Division proves at trial.

In addition, Defendant seeks recovery of its attorney’s fees and expenses.

XIV. ATTORNEYS

A. Attorneys for Plaintiff:

KATHLEEN CALDWELL, PLLC Kathleen L. Caldwell (#9916) 2670 Union Avenue Extended, Suite 100 Memphis, Tennessee 38112 Telephone: (901) 458-4035 Email: [email protected]

B. Attorneys for Defendant:

GLANKLER BROWN, PLLC Saul C. Belz (TN #4346) Michael D. Tauer (TN #25092) Miska L. Shaw (TN #28241) 6000 Poplar Avenue, Suite 400 Memphis, Tennessee 38103 Telephone: (901) 525-1322 Facsimile: (901) 525-2389 Email: [email protected] Email: [email protected] Email: [email protected]


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XV. SPECIAL EQUIPMENT

Counsel for the parties will bring their laptop computers to the trial and may utilize the

Court’s audio/visual equipment.

IT IS SO ORDERED, on this the 26th day of September 2016.

s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR. United States District Judge APPROVED AS TO FORM: KATHLEEN CALDWELL, PLLC s/Kathleen L. Caldwell

Kathleen L. Caldwell (#9916)

2670 Union Avenue Extended, Suite 100 Memphis, Tennessee 38112 Telephone: (901) 458-4035 Email: [email protected] Attorneys for Plaintiff Joanne Plaintiff GLANKLER BROWN, PLLC By: /s/ Saul C. Belz Saul C. Belz (TN #4346) Michael D. Tauer (TN #25092) Miska L. Shaw (TN #28241) 6000 Poplar Avenue, Suite 400 Memphis, Tennessee 38103 Telephone: (901) 525-1322 Facsimile: (901) 525-2389 Email: [email protected] Email: [email protected] Email: [email protected] Attorneys for Defendant Memphis Light, Gas and Water Division, a division of the City of Memphis, Tennessee


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Exhibit A to Pretrial Exhibit

Exhibit No.

Description Date Document Identification

Stipulation as to Authenticity

1. September 23, 2009 Note from Dr. Robert C. McEwan re: hours worked

2009-09-23 MLGW 4378 Yes

2. September 23, 2009 Disability Claim Form for Plaintiff completed by Dr. Robert C. McEwan

2009-09-23 MLGW 4384 Yes

3.

November 10, 2009 Letter from Steven Day to Dr. McEwan and November 30, 2009 Handwritten Response of Dr. McEwan

2009-11-10 and

2009-11-30

MLGW 10 Yes

4. F.R.E. 1006 Summary, Chart or Calculation = Timeline of Plaintiff’s 2009 Accommodation Request

n/a Pretrial Disclosure (“PTD”) Exhibits 1-3

5. January 14, 2013 Email from Dr. Von Goodloe to Plaintiff

2013-01-14 MLGW 1477 Yes

6. January 14, 2013 Reply Email from Plaintiff to Dr. Von Goodloe

2013-01-14 MLGW 1426 Yes

7. February 11, 2013 Oral Reprimand 2013-02-11 MLGW 14-15 Yes

8. May 29, 2013 Email from Von Goodloe to Plaintiff

2013-05-29 MLGW 1475 Yes

9. July 15, 2013 Email from Von Goodloe to Plaintiff

2013-07-15 MLGW 1478 Yes

10. September 4, 2013 Email from Dr. Von Goodloe to Plaintiff

2013-09-04 MLGW 16 Yes

11. F.R.E. 1006 Summary, Chart or Calculation = Von Goodloe’s Warnings and Reprimands to Plaintiff

n/a PTD Exhibits 5-10

12. Plaintiff’s September 18, 2013 Internal EEC Charge of Employment Discrimination

2013-09-18 MLGW 1-3 Yes

13. Eric Conway’s Notes from October 24, 2013 ADA Interactive Process Meeting

2013-10-24 MLGW 4349-4351,4354

Yes

14. Vernica Davis’ Notes from October 24, 2013 ADA Interactive Process Meeting

2013-10-24 MLGW 4361-4365

15. October 28, 2013 Letter from Vernica Davis to Dr. Robert C. McEwan

2013-10-28 MLGW 4370


23

Exhibit No.



16. November 14, 2013 Letter from Dr. McEwan to Vernica Davis

2013-11-14 MLGW 11 Yes

17. November 25, 2013 Letter from Vernica Davis to Dr. Robert C. McEwan

2013-11-25 MLGW 12 Yes

18. Plaintiff’s January 6, 2014 EEOC Intake Questionnaire

2014-01-06 D.E. 81-6 Yes

19. January 9, 2014 Interdepartmental Correspondence to Plaintiff: “ADAAA Interactive Process – Final Request”

2014-01-09 MLGW 4348 Yes

20. January 14, 2014 Letter from Dr. McEwan to Vernica Davis

2014-01-14 MLGW 13 (4372) Yes

21. Eric Conway note explaining reason for denial of accommodation request

2014-01-23 MLGW 4354

22.

January 27, 2014 Interdepartmental Correspondence from Eric Conway to Plaintiff: “ADAAA Interactive Process – Final Response”

2014-01-27 MLGW 9 (4347) Yes

23. Plaintiff’s February 11, 2014 Charge of Discrimination

2014-02-11 MLGW 2805 Yes

24. F.R.E. 1006 Summaries, Charts or Calculations = Timeline of Plaintiff’s 2013 ADA Accommodation Request

n/a P.T.D. Exhibits 12-23, 25-31

25. Entire Deposition Transcript of Dwight Dishmon, M.D.

2015-05-14 Video and Written

26. Collection of Plaintiff’s Medical Records from Dr. Dishmon’s Office

2013-06-27 to

2015-04-16

Sutherland 1-17 Yes

27. Entire Deposition Transcript of Maher Ghawji, M.D.

2015-05-05 Video and Written

28. Collection of Plaintiff’s Medical Records from Dr. Ghawji’s Office

2010-09-28 to 2015-01-

16

Dr. M. Ghawji 1-41

Yes

29. Record of Plaintiff’s Endocrinology Lab Results

2012-2015 Ex. H-2 to D.E. 81.1

Yes


24

Exhibit No.



30. Entire Deposition Transcript of Robert C. McEwan, M.D.

2015-04-29 Video and Written Yes

31. Collection of Plaintiff’s Medical Records from Dr. McEwan’s Office

2009, 2011-2015

Dr. R.C. McEwan 1-26

Yes

32. Timekeeping Report Showing Plaintiff’s Hours Worked for 2013

2013 MLGW 2676-2678

33. Plaintiff’s Absences Report (2009-01-01 to 2014-12-31)

2015-01-15 MLGW 4281-4287

34. Plaintiff’s Attendance Report - Breakdown of Earnings Codes (2013-01-01 to 2014 02 24)

n/a MLGW 4049-4056

35. Plaintiff’s Attendance Report - Breakdown of Earnings Codes (2009-01-01 to 2014-02-13)

n/a MLGW 4288-4346

36. Plaintiff’s Time Records (Timecards from Workflow Mailer)

Various MLGW 1265-1337

37. Plaintiff’s Absence Calendar 2013 MLGW 2679 -

2681

38. F.R.E. 1006 Summaries, Charts or Calculations = Plaintiff’s Timekeeping Records

n/a P.T.D. Exhibits 32-37

39. Badge History Report (January 1, 2013 – August 23, 2013)

2013-01-01 to

2013-08-23

MGLW 17-64

40. Badge History Report (July 22, 2013 to December 31, 2013)

2016-08-18 MLGW 4599-4649

41. Badge History report (January 1, 2014 to February 14, 2014)

2016-08-18 MLGW 4650-4666

42. 2009 Gate Records 2009 MLGW 4073-

4083 & MLGW 4124-4132

43. F.R.E. 1006 Summaries, Charts or Calculations = Plaintiff’s Employee Badge and Gate Records



25

Exhibit No.



44. F.R.E. 1006 Summaries, Charts or Calculations = Plaintiff’s Gate and Timekeeping Records


45. Plaintiff’s 2012 W-2 (SSN redacted) 2012 MLGW 4667 Yes

46. Plaintiff’s last Statement of Earnings and Deductions for calendar year 2012 (Pay period: 2012-11-25 to 2012-12-08)

2012-12-21 MLGW 4668 Yes

47. Plaintiff’s last pay stub for calendar year 2012 (Pay period: 2012-11-25 to 2012-12-08) (banking information redacted)

2012-12-21 MLGW 4669 Yes



2013-12-20 MLGW 4671 Yes


2013-12-30 MLGW 4672 Yes

51. Plaintiff’s 2013 I.R.S. Form 1040 Tax Return 2014-10-18 MLGW 4673-

4698 (JR002-023)

Yes



2014-02-28 MLGW 4700 Yes


2014-02-28 MLGW 4701 Yes

55. Plaintiff’s 2014 1099-R (showing regular retirement pay)

2014 MLGW 4702 Yes

56. Plaintiff’s 2014 1099-R (showing lump sum withdrawal from retirement account)

2014 MLGW 4703 Yes


4719 (JR 0024-0041)

Yes


26

Exhibit No.



58. Plaintiff’s 2015 1099-R (showing regular retirement pay)

2015 MLGW 4720 Yes


4733 (JR 0042-063)

Yes

60.

Plaintiff’s March 2016 Statement of Payments and Disbursements showing retirement pay (Pay period: 2016-03-01 to 2016-03-31) (banking information redacted)

n/a MLGW 4734 Yes

61. F.R.E. 1006 Summaries, Charts or Calculations = Plaintiff’s Compensation


62. December 7, 1984 Written Reprimand 1984-12-07 MLGW 65 Yes

63. April 22, 1985 Written Reprimand, Tardiness 1985-04-22 MLGW 66 Yes

64. Notice about Dentist Appointment and Oral Reprimand

2002-04-26 MLGW 4236 Yes

65. June 20, 1980 Performance Appraisal 1980-06-20 MLGW 68-76 Yes

66. November 1, 1982 Performance Appraisal 1982-11-01 MLGW 77-84 Yes




70. November 6, 1987 Performance Appraisal (date of appraisal is actually 10/6/1987)

1987-11-06 MLGW 110-117 Yes


72. April 1, 1991 Performance Appraisal 1991-04-01 MLGW 124-129 Yes

73. February 11, 1999 Performance Appraisal 1999-02-11 MLGW 130-137 Yes

74. April 1, 2003 Performance Appraisal 2003-04-01 MLGW 138-151 Yes

75. May 23, 2003 Interdepartmental Correspondence from Mr. Magness to Plaintiff

2003-05-23 MLGW 4172 Yes

76. February 13, 2004 Performance Appraisal 2004-02-13 MLGW 152-165 Yes

77. February 10, 2006 Performance Appraisal 2006-02-10 Ex. A-26 to D.E.

81.1 Yes


27

Exhibit No.



78. April 1, 2008 Performance Appraisal 2008-04-01 Ex. A-27 to D.E.

81.1 Yes

79. Plaintiff’s Amended Complaint, filed September 23, 2014

2014-09-23 D.E. 36 Yes

80. 2013 Succession Plan for Human Resources and Compensation Department

2013-08 MLGW 208-237 Yes

81. Job Description for Supervisor of Compensation

1998-11-02 MLGW 8

82. Punctuality File Kept by Thomas Dunagan Various MLGW 4196-

4225

83. Records of Plaintiff’s Issues with Meeting Attendance

2009-07-21 MLGW 4084

84. Division Policy 23-01: Tardiness and Failure to Report to Work

2006-07-06 MLGW 1550-1551

85. Notes from Steve Day re tardiness 2009 MLGW 4086-

4087

86. Emails from Von Goodloe re changing arrival time to 8:30 a.m.

2013-11-26 MLGW 817 Yes

87.

Documentation of Plaintiff’s Tardiness Problems Written by Thomas Dunagan

Various MLGW 4155-4158; 4175-4186; 4190-4195; 4236-4254; 4276

88. Documentation of Plaintiff’s Tardiness Problems written by Marcia Mason

2002-2003 MLGW 4154; 4167-4168

89. Documentation of Plaintiff Improperly Requesting PTO benefits

2012-05-23 MLGW 991, 1032 & 4153

90. November 6, 2015 Affidavit of Dr. Von Goodloe

2015-11-06 Ex. FF to D.E. 81.1

91. F.R.E. 1006 Summaries, Charts or Calculations = Oral and Written Warnings and Reprimands to Plaintiff

n/a P.T.D. Exhibits 5-11, 62-90

92. Emails from Sandra Allen re timeliness issue with Plaintiff

2011-06-28; 2011-03-04

MLGW 987-988 Yes

93. Emails from Chris Bieber re timeliness issues with Plaintiff

2010, 2012-2013

MLGW 309-310 & 709-712

Yes


28

Exhibit No.



94. Emails from Jerry Collins re timeliness issues with Plaintiff

2013 MLGW 728 Yes

95. Email from Brent Haywood re timeliness issues with Plaintiff

2010 MLGW 269 Yes

96. Emails from Wayne Jackson re timeliness issues with Plaintiff

2011 MLGW 664 & 778-779

Yes

97. Emails from Dana Jeanes re timeliness issues with Plaintiff

2013 MLGW 327-330; 360-365 & 738

Yes

98. Email from Virginia Leonard re timeliness issues with Plaintiff

2013 MLGW 1065 Yes

99. Emails from Nick Newman re timeliness issues with Plaintiff

2012 MLGW 850; 916-923 & 1110-1112

Yes

100. Emails from Michael Ray Russell re timeliness issues with Plaintiff

2012 MLGW 803-804 & 1208

Yes

101. Email from Von Goodloe to Steve Day with attachment ( “HR Issues”)

2012-02-21 MLGW 1071-1074

Yes

102. Email from Von Goodloe to Plaintiff re timeliness issues with Compensation Department

2011-06-09 MLGW 1084 Yes

103. Email from Ira Carbage re timeliness issues with Plaintiff

2011-01-20 MLGW 721 Yes

104. Email from Joanne Russ to Carolyn Turman with attachment (Complaints from Staff in Compensation Department)

2011-06-30 MLGW 747-748 Yes

105. F.R.E. 1006 Summaries, Charts or Calculations = Complaints Related to Plaintiff and/or the Compensation Department


106. Calendars showing Plaintiff’s meetings with pension specialist

2010, 2014 MLGW 4513-4515

107. Plaintiff’s file with MLGW Pension Department

Various MLGW 4516-4594

Yes

108. Letter to Joanne Russ from Daphne Winston re Retirement Benefits

2014-03-24 MLGW4386-MLGW4405

109. F.R.E. 1006 Summary, Chart or Calculation = Plaintiff’s Retirement Planning

n/a P.T.D. Exhibits 13-14, 106-108


29

Exhibit No.



110. March 6, 2014, letter from Mr. Day 2014-03-06 MLGW 4384 Yes

111. Dismissal and Notice of Rights 2014-02-20 MLGW 2804 Yes

112. List of names to receive compensation benefits none JR 00080000206 No

113. November 12, 2008, Interdepartmental Communication

2008-11-12 JR 00080000190 No

114. January 20, 1999, Oral Reprimand 1999-01-20 MLGW 2821

(4278) Yes

115. August 3, 2006, Interdepartmental Correspondence

2006-08-03 Steve Day Depo. Ex. 1 (no Bates)

No

116. Job Description none Steve Day Depo.

Ex. 2 (no Bates) No

117. July 27, 2006, Interdepartmental Correspondence

2006-07-27 Steve Day Depo. Ex. 3 (no Bates)

No

118. July 23, 2009, (ID only) Memo (MLGW 4118) 2009-07-23 MLGW 4118 No

119. Illustrative Base Salary Policy at 25th

Percentile of National Energy Sector, Effective date January 1, 2008

2008-02-12 Exhibit 1 to Armstead Ward’s deposition

No

120. July 7, 2011, Excerpt from meeting minutes (MLGW 1234)

2011-07-07 MGLW 1234-1236

No

121. March 12, 2012, Memo (MLGW 1360-1364) 2012-03-12 MLGW 1360-

1364 No

122. October 30, 2013, Collins to Goodloe Memo (MLGW 738)

2013-10-30 MLGW 738 Yes

123. Compensation and HRIS Salary Worksheet Various Exhibit 4 to Jerry

Collins’ deposition No

124. Proposed Appraisal 2013-05-07 MLGW 1258-

1260 No

125. MLGW University 2013 MLGW 208-237 No

126. Introduction to Job Evaluation 2013 MLGW 771-777 No

127. September 18 2013, Internal Correspondence 2013-09-18 Exhibit 4 to Von

Goodloe’s deposition

No

128. Handwritten notes (MLGW 4510) 2013-10-07 MLGW 4510 No


30

Exhibit No.



129. HR Leadership Team Meeting Agenda Various MLGW 4595-

4598 No

130. Billing Statement 2015-05-05

(Print date) Dr. M. Ghwaji 42-44

Yes

4825-0525-2663, v. 5


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