Cases

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No.

HOMER JAMES,

Plaintiff,

v.

COORS BREWING COMPANY, a Colorado Profit Corporation ; YVONNE MANNON; and TARA SCHERSCHLIGT, individually and in her capacity as supervisor,

Defendants.

COMPLAINT AND JURY DEMAND

Plaintiff, Homer James, by and through his undersigned counsel, the Silvern Law Offices P.C., hereby complains against the Defendants, the Coors Brewing Company, Yvonne Mannon and Tara Scherschligt as follows:

STATEMENT OF CLAIM

1. This is an action to vindicate violations of the Plaintiff’s civil rights and to redress the unlawful and discriminatory conduct and employment practices of the Defendants. This action arises out of the illegal and wrongful discharge of Mr. Homer James on or about May 14, 1996. Mr. James alleges, inter alia, that he was terminated from his employment based, in whole or in part, upon his gender and/or race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section(s) 2000e et seq., and the Civil Rights Act of 1866, as amended by the Civil Rights Restoration Act of 1991, 42 U.S.C. Section 1981.

Beginning on or about April 18, 1972, Homer James, an African-American male, was employed at the Coors Brewing Company. During his 24 years with Coors, Mr. James performed his duties in a professional and outstanding manner. In or around March, 1996, the Coors Brewing Company initiated an investigation into alleged sexual harassment and misconduct at its brewing facility located in Golden, Colorado and particularly in its Conditioning Department, where Mr. James was employed. The investigation was the direct consequence of allegations raised by Defendant Yvonne Mannon, a white female employee, who reported, under questionable circumstances, that she had been subjected to repeated sexual harassment by her male co-workers. During the course of the investigation, Defendant Mannon implicated several of her male co-workers in alleged wrong-doing. Beginning on or about April 23, 1996, she alleged that Mr. James had accosted her on at least four hundred (400) separate occasions. In fact, Mr. James never accosted Ms. Mannon and has vehemently and steadfastly denied all allegations of sexual harassment and misconduct.

Although Coors’ investigation revealed that Defendant Mannon had, on numerous occasions, engaged in inappropriate behavior and sexual misconduct herself and although it knew or should have known that Defendant Mannon’s allegations against Mr. James were false and improperly motivated, Defendant Coors terminated Mr. James’ employment on or about May 14, 1996. On information and belief, Defendant Coors did not terminate, or in any way discipline, Defendant Mannon or any other female employees as a result of the investigation despite actual or constructive knowledge of the female employees’ violations of company policies. Mr. James thereafter filed a timely appeal with the Coors Brewing Company Appeals Board. However, he was denied the processes mandated by Defendant Coors’ policies and procedures. Specifically, employees of Defendant Coors, including Defendant Tara Scherschligt, failed to follow procedures, provided the appeals board with incomplete and misleading information, and denied Mr. James the opportunity to discover who, if anyone, had corroborated Defendant Mannon’s accusations. Consequently, on June 7, 1996, despite the questionable evidence and the fact that no witnesses were brought forth at the hearing, the appeals board upheld Mr. James’ termination.

Mr. James alleges that Defendant Coors’ investigation, the subsequent disciplinary action and termination, and the appeals process in particular, were tainted , biased and/or implemented in a discriminatory manner. As a result of the investigation out of which the allegations against Mr. James arose, Defendant Coors terminated at least eight (8) male employees: six (6) white males, a Hispanic male and Mr. James (an African-American male). All of these terminations were appealed. Of those who denied the allegations against them, only the white employees won their appeals. The Hispanic male and Mr. James lost their appeals. Upon information and belief, the appeals process has a significant disparate impact on minority employees insofar as white employees obtain more favorable results in the company appeals process.

As a result of the Defendants’ unlawful and discriminatory conduct and employment practices and violations of Plaintiff’s rights protected by federal law, Mr. James was discharged from his employment on or about May 14, 1996. Defendants’ wrongful conduct thereafter denied him a fair appeal and hearing as guaranteed by Defendant Coors’ stated employment practices and policies, and the termination was upheld on June 7, 1996. Plaintiff now seeks injunctive relief; monetary damages, including back pay, front pay, if applicable, compensatory and punitive damages; and attorneys fees and costs, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sections 2000e, et seq.; the Civil Rights Act of 1866, as amended, 42 U.S.C. Section 1981; 42 U.S.C. Section 1981A and 42 U.S.C. Section 1988. Mr. James also brings tort and contract claims under the common law of Colorado.

PARTIES

2. Plaintiff, Homer James, an African-American, is an adult male individual and citizen of the United States who resides at 18925 East 45th Avenue, Denver, Colorado . At all relevant times, Mr. James was 56 years old and was an employee of the Coors Brewing Company, within the meaning of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sections 2000e, et seq., and applicable case law.

3. Defendant, the Coors Brewing Company [herein referred to as Coors ], is a corporation or similar business entity organized and existing under the laws of the State of Colorado, and which regularly conducts business at the Coors Brewing Company, Golden Colorado.

4. At all relevant times, Defendant Coors employed in excess of fifteen employees and was an employer within the meaning of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sections 2000e, et seq.

5. Defendant, Yvonne Mannon, a white female, is an adult individual and citizen of the United States who resides in Colorado. At all relevant times, Ms. Mannon was an employee of Defendant Coors.

6. Defendant, Tara Scherschligt, a white female, is an adult individual and citizen of the United States who resides in Colorado. At all relevant times, Ms. Scherschligt was the Director of the Conditioning Department and a managerial employee of Defendant Coors.

JURISDICTION AND VENUE

7. This is, in part, an action authorized and instituted pursuant to: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section(s) 2000e et seq.; the Civil Rights Act of 1866, as amended by the Civil Rights Restoration Act of 1991, 42 U.S.C. Section 1981; 42 U.S.C. Section 1981A; 42 U.S.C. Section 1988, and the common law of the State of Colorado.

8. The jurisdiction of this Court is predicated upon 28 U.S.C. Section 1331 and 1343, to redress the unlawful deprivation of Plaintiff’s rights secured, guaranteed and protected by federal law. The Court also has jurisdiction pursuant to 28 U.S.C. Sections 2201 and 2202 relating to declaratory judgments. This Court may also exercise pendant jurisdiction over Plaintiff’s state law claims arising under the common law and statutes of the State of Colorado, and which arise from a common nucleus of operative fact pursuant to 28 U.S.C. Section 1367.

9. Venue is proper in the United States District Court for the District of Colorado pursuant to 28 U.S.C. Section 1391(b), wherein Plaintiff resides, all Defendants regularly conduct business and where all the wrongful conduct occurred.

ADMINISTRATIVE PREREQUISITES

10. Mr. James has complied with all the administrative prerequisites to action under Section 706 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sections 2000e-5 as follows:

A. On or about September 20, 1996, Mr. James timely filed a formal charge of discrimination with the State of Colorado Civil Rights Division [hereinafter referred to as C.C.R.D. ] which was jointly filed with the Equal Employment Opportunity Commission [hereinafter referred to as E.E.O.C. ];

B. Mr. James promptly and diligently accommodated all C.C.R.D. and E.E.O.C. requests for information and fully cooperated in the agencys’ investigation of this matter;

C. Mr. James has exhausted all available administrative remedies in accord with the aforementioned statutes prior to instituting this Civil Action, and Counsel for Mr. James formally requested a Notice of Right to Sue from the C.C.R.D. on May 5, 1997 and the EEOC on May 6, 1997. 11. No administrative prerequisites are required before a Plaintiff files a complaint pursuant to the Civil Rights Act of 1866, as amended by the Civil Rights Restoration Act of 1991, 42 U.S.C. Section 1981.

FACTUAL ALLEGATIONS

12. Plaintiff, Homer James, was employed by Defendant Coors on or about April 18, 1972 and worked at the Coors brewery located in Golden, Colorado.

13. At all relevant times, Defendant Coors employed in excess of fifteen (15) employees for at least twenty (20) calendar weeks in 1995, 1996 and 1997, and was further engaged in an industry directly affecting interstate commerce.

14. At all relevant times, all matters regarding compensation, terms, conditions, rights and privileges of Mr. James’ employment were governed and controlled by Defendant Coors.

15. Upon information and belief and at all relevant times, Defendants Mannon and Scherschligt were acting as the agents, servants and/or employees of Defendant Coors. Defendant Coors is therefore liable for the acts and omissions of the individual Defendants pursuant to the principals of ratification, respondeat superior and actual and/or implied agency.

16. At all relevant times, Mr. James fully, adequately and completely performed all of the functions, duties and responsibilities of his employment with Defendant Coors.

17. Mr. James has a history and record of regular salary increases and bonuses.

18. At all relevant times, Defendant Mannon was employed by Defendant Coors in the brewery Conditioning Department.

19. In or around March, 1996, Defendant Mannon reported that she had been accosted and sexually harassed by several of her male co-workers over the course of the last eight (8) years.

20. Defendant Coors had a policy regarding sexual harassment in the workplace. Pursuant to the Coors Employment manual, sexual harassment consists of and is limited to unwelcome behavior of a sexual nature.

21. Upon information and belief and as set forth herein, Defendant Coors applies this policy in a manner that discriminates against its employees on the basis of gender, and/or race.

22. Upon information and belief, Defendant Mannon’s accusations were not creditable, and she only reported the alleged sexual harassment in an attempt to save her job after she was implicated in violations of company policy.

23. In response to Ms. Mannon’s accusations, Defendant Coors initiated a department-wide investigation into Ms. Mannon’s allegations of widespread sexual harassment and misconduct.

24. During the ensuing investigation, Defendant Mannon gave numerous statements implicating several of her male co-workers in the alleged sexual harassment. On or about April 23, 1996, Defendant Mannon was interviewed by a deputy from the Jefferson County Sheriff’s Department. During that interview, she alleged that for the past eight (8) years she had been sexually harassed by Mr. James. Specifically, she alleged that Mr. James had accosted her on at least four hundred (400) separate occasions, and that he had tried to grope her, rip off her clothes and stated that he wanted to f___ her. Defendant Mannon repeated these allegations on numerous occasions.

25. During this interview and during subsequent interviews as described herein, Defendant Mannon was accompanied by one or more representatives of Coors.

26. At all relevant times, Mr. James and Ms. Mannon were employed in different areas of the Coors facility and did not work in close proximity to one another.

27. During the course of its investigation, Defendant Coors discovered that Defendant Mannon had, on numerous occasions, engaged in inappropriate behavior and sexual conduct. Specifically, several individuals reported to Coors’ investigators that Ms. Mannon had used sexually explicit, vulgar and lewd language.

28. Several individuals further indicated that Defendant Mannon had frequently touched and grabbed her male co-workers in an inappropriate and sexual manner, including but not limited to touching them in the crotch area.

29. Upon information and belief, Coors did not terminate or in any way discipline Defendant Mannon.

30. On or about May 14, 1996, Coors terminated Mr. James from his employment. The stated reason for Mr. James’ discharge was gross misconduct and dishonesty with regard to the investigation.

31. At all relevant times, Mr. James vehemently denied all allegations of misconduct.

32. Coors conducted the aforesaid investigation in such a manner so as to intimidate, embarrass and coerce its employees into supporting the accusations of Defendant Mannon.

33. As part of the aforesaid investigation, Coors, through its agents and employees, including Defendant Scherschligt, promised to waive discipline for violations of company policy in exchange for cooperation in supporting Defendant Mannon’s allegations and retaliated against employees who did not cooperate.

34. Coors knew or should have known that Defendant Mannon’s allegations particularly with respect to Mr. James were false and motivated by self-interest.

35. In spite of said knowledge, Coors terminated at least 8 male employees, including Mr. James, as a result of Defendant Mannon’s allegations.

36. Pursuant to the employment policies and procedures promulgated by Defendant Coors, Mr. James filed a timely appeal of his termination with the Appeals Board. Although the Coors Brewing Company employment policies and procedures guarantee a fair hearing, the process was implemented in a discriminatory, biased and unfair manner.

37. Contrary to its express employment policies, two (2) management personnel, including Defendant Scherschligt, presented the case against Mr. James. Pursuant to the applicable provisions of the Coors employment policies and procedures, only the appellant’s direct supervisor is supposed to appear at the hearing.

38. The evidence and information presented to the Appeals Board by Defendants Coors and Scherschligt were incomplete and misleading including but not limited to the following: The implication that Mr. James was named in allegations of theft, time card fraud, or threats on the lives of Defendant Mannon and another employee; the implication that Defendant Mannon had complained of sexual harassment to Human Resources and Women at Coors for years but the situation was never resolved; that Defendant Mannon’s accusations were confirmed during Coors’ investigation; that at least one woman aside from Defendant Mannon had been subjected to sexual harassment by Mr. James; and that Defendant Mannon had nothing to gain from pursuing her allegations.

39. In fact, Mr. James had not been implicated in any allegations of theft, time card fraud or threats on the life of any co-employee.

40. In fact, there is no evidence that Defendant Mannon complained of sexual harassment to anyone at Coors prior to 1996.

41. In fact, Defendant Mannon’s accusations were not confirmed during the investigation.

42. In fact, Coors had no evidence that at least one woman aside from Defendant Mannon had been subjected to sexual harassment by Mr. James.

43. In fact, Coors knew or should have known that Defendant Mannon did have something to gain from pursuing allegations against Mr. James because prior to her allegations of sexual harassment , Defendant Mannon was personally implicated in violations of Coors company policy.

44. Coors also knew or should have known that Defendant Mannon had previously alleged harassment against a co-emploeye when she was suspected of violating company policy.

45. Contrary to its express employment policies, Coors did not provide Mr. James with the specific facts and information pertaining to the case before the appeals hearing. Moreover, Coors used said unexchanged evidence at the appeals hearing contrary to its employment policies.

46. Contrary to its express employment policies, Coors did not allow Mr. James to strike off an employee from serving on the appeals boarrd.

47. Additionally, no witness were brought forth at the hearing to corroborate the accusations of Defendant Mannon, and Mr. James was not even given the opportunity to discover who, if anyone, had corroborated Defendant Mannon’s accusations.

48. On June 7, 1996, the Appeals Board upheld Mr. James’ termination.

49. As set forth more fully herein, similarly situated white males won their appeals.

CAUSES OF ACTION

FIRST CAUSE OF ACTION

Defendant Coors’ Violation of Title VII’s Prohibition Against Employment Discrimination Gender Discrimination — Disparate Treatment

50. Plaintiff incorporates by reference the allegations set forth in the preceding paragraphs of the Complaint as though set forth at length herein.

51. This claim is authorized and instituted pursuant to the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section(s) 2000e et seq., and 42 U.S.C. Section 1981A, for relief based upon the unlawful employment practices of the above-named Defendant. Specifically, Mr. James complains of Defendant Coors’ violation of Title VII’s prohibition against discrimination in employment based, in whole or in part, upon an employee’s gender.

52. During his employment with Defendant Coors, Mr. James was a member of a class protected under Title VII against gender based discrimination by his employer, Defendant Coors, or by its supervisory personnel.

53. As set forth herein, as a result of the investigation out of which the allegations against Mr. James arose, Defendant Coors terminated the employment of at least eight (8) employees, all of whom were males.

54. As set forth herein, during the course of its investigation, Defendant Coors discovered that Defendant Mannon had, on numerous occasions, engaged in inappropriate behavior and sexual misconduct. Specifically, several individual employees reported to Defendant Coors that Ms. Mannon had used sexually explicit, vulgar and lewd language, and had touched and grabbed her male co-workers in a sexual manner.

55. Defendant Mannon, a female, was not terminated, disciplined and/or otherwise reprimanded for her infractions of company policy. To the contrary, she was given special consideration, including, inter alia, flexible hours, a leave of absence with full pay and was provided with Company security guards.

56. Defendant Coors offered special consideration to its employees in general, and its female employees in particular, who were willing to cooperate in its investigation of sexual harassment, including waiving discipline for known infractions of company policy.

57. Mr. James, as a male employee of Defendant Coors, was therefore treated in a disparate manner and was subjected to Defendant’s unfair policies and practices insofar as that he was treated in an unequal manner and unlike female employees similarly situated with the Defendant. Said unfair practices both limited Plaintiff in his wages and other benefits because of his gender, male, and further resulted in his discharge from employment on or about May 14, 1996.

58. Defendant Coors, further denied Mr. James equal employment opportunities because of his gender, male, to wit:

A. The reason given for Mr. James’ discharge was a mere pretext for unlawful discrimination in that Defendant Coors knew or should have known that Ms. Mannon’s accusations were uncreditable, suspect and uncorroborated;

B. The Defendant did not discipline or discharge a similarly situated female employee, Defendant Mannon, in that said employee had used sexually explicit, vulgar and lewd language, and had touched and grabbed her male co-workers in a sexual manner;

C. The alleged event of the sexual harassment of Defendant Mannon by Mr. James, in fact, never took place. This fact was known or should have been known to Defendant Coors, at the time of Mr. James’ discharge.

59. At all relevant times, Defendant Coors knew that the discriminatory conduct complained of herein was without cause as Mr. James had consistently satisfied and/or exceeded all the requirements of his position.

60. As a result of Defendant Coors’ employment policies, procedures and practices, Mr. James was unjustly and discriminitorily deprived of equal employment opportunities because of his gender, male.

61. As a further result of Defendant Coors’ above stated actions, Mr. James has been, is being and will be deprived of income in the form of wages and prospective retirement benefits, and other benefits, promotion opportunities and job assignments due to him as an employee, but denied because of his gender and in an amount to be proven at trial.

62. The above-named Defendants’conduct was a direct and proximate cause of the injuries, damages and harm suffered by Mr. James.

63. Furthermore, Defendant Coors intentionally and/or with reckless indifference, engaged in the above stated discriminatory practices against Mr. James, contrary to Mr. James’ federally protected rights as guaranteed to him under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section(s) 2000e et seq., as amended, and 42 U.S.C. Section 1981.

64. The intentional and discriminatory conduct of Defendant Coors complained of herein was willful, wanton, deliberate, malicious, egregious and outrageous warranting the imposition of punitive/exemplary damages which will serve as an example and deterrent to Defendant and others who would commit similar illegal acts.

65. As Defendant Coors engaged in discriminatory employment practices with malice or with reckless indifference to Mr. James’ federally protected rights, Mr. James is entitled to punitive/exemplary damages in addition to compensatory damages and other remedies available under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section(s) 2000e et seq., as amended, and 42 U.S.C. Section 1981A.

SECOND CAUSE OF ACTION

Defendant Coors’ Violation of Title VII’s Prohibition Against Employment Discrimination Racial Discrimination — Disparate Impact

66. Plaintiff incorporates by reference the allegations set forth in the preceding paragraphs of the Complaint as though set forth at length herein.

67. This claim is authorized and instituted pursuant to the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section(s) 2000e et seq., as amended, and 42 U.S.C. Section 1981, for relief based upon the unlawful employment practices of the above-named Defendant. Specifically, Mr. James complains of Defendant Coors’ violation of Title VII’s prohibition against discrimination in employment based, in whole or in part, upon an employee’s race.

68. Mr. James is an African-American male and during his employment with Defendant Coors was a member of a class protected under Title VII against race based discrimination by his employer, Defendant Coors, or its supervisory personnel.

69. At all relevant times, Mr. James fully, adequately and completely performed all of the functions, duties and responsibilities of his employment with Defendant Coors.

70. At all relevant times, Defendant Coors operates an appeals system through which disciplined and/or discharged employees may challenge an adverse employment decision through an impartial, fair and unbiased process. Pursuant to Defendant Coors’ employment manual, policies and practices, the Appeals Board consists of five (5) voting members – three (3) employee peers and two (2) members from management.

71. The members of the appeals board are selected randomly from a list of Coors’ employees generated by a computer.

72. Because of the random selection process and the racial make-up of the Coors’ employee populations, the appeals boards of minority employees who participate in the appeals Process frequently have no member of the same race or national origin as the appelant. On the other hand, the appeals board of white employees who participate in the appeals process typically have white members.

73. In addition, Defendant Coors does not attempt to screen potential candidates, determine their qualifications and/or otherwise attempt to eliminate candidates with racial bias from the appeals board selection process.

74. On information and belief, Defendant Coors did not investigate the possibility of an alternative selection method that would eliminate racial bias from the system, have a less adverse impact on minority employees, and/or otherwise ensure the fair representation of minority interests.

75. As set forth herein, as a result of the investigation out of which the allegations against Mr. James arose, Defendant Coors terminated at least eight employees: six (6) white males, a Hispanic male and Mr. James, an African-American male.

76. Of the 8 employees that challenged their termination, only the white employees won their appeals while the 2 minority employees lost theirs.

77. On information and belief, the Coors’ appeals process negatively impacts minority employees in general and African-American employees in particular on a company-wide basis in that a lower percentage of minority employers prevail on their appeals as compared to white employees.

78. Defendant Coors’ appeals process negatively impacts minority employees in general, and African-American employees in particular, at a substantially higher rate than white employees and therefore has a significant discriminatory impact on minority employees.

79. As a result of Defendant Coors’ policies and practices, Mr. James was unjustly and discriminatorily deprived of equal employment opportunities because of his race.

80. As a further result of Defendant Coors’ above stated actions, Mr. James has been, is being and will be deprived of income in the form of wages and prospective retirement

enefits, and other benefits, promotion opportunities and job assignments due to him as an employee, but denied because of his race and in an amount to be proven at trial.

THIRD CAUSE OF ACTION

Defendant Coors’ Breach of Contract and/or Promissory Estoppel

81. Plaintiff incorporates by reference the allegations set forth in the preceding paragraphs of the Complaint as though set forth at length herein.

82. Defendant Coors promulgated express and written statements of employment policies, practices and procedure which it provided and disseminated to all of its employees, including Mr. James.

83. Defendant Coors represented, both orally and in writing, that it would treat employees in a specific, fair and equitable manner. Specifically, Defendant Coors promulgated a policy that discharged employees would be provided with a fair, impartial and unbiased appeals process.

84. Defendant Coors further represented, promised and/or implied both orally and in writing that an employee would only be discharged for cause, and after a reasonable investigation and opportunity to be heard.

85. The customary pattern and practice of Defendant Coors was to follow its express and implied employment policies and practices, including the for cause and appeals process policies.

86. Furthermore, Defendant Coors represented, promised and/or implied that it would investigate the allegations of sexual harassment and misconduct originally raised by Defendant Mannon in a fair, impartial and nondiscriminatory manner.

87. Defendant Coors promulgated these policies and procedures, and made these representations, in such a manner as to manifest its willingness to enter into a bargain with its employees, including Mr. James.

88. Mr. James assented to Defendant Coors’ offer regarding the employment policies and procedures by accepting employment and via oral representations in such a way as to conclude the bargain.

89. Mr. James’ initial and/or continued employment with Defendant Coors constituted acceptance of and consideration for Defendant’s offer. As additional consideration, Mr. James executed a non-competition and confidentiality agreement for the specific benefit of Defendant Coors on or about May 10, 1983.

90. Defendant Coors breached its contract with Mr. James by its failure to follow its own practices, policies and procedures with regard to the terms and conditions of Plaintiff’s employment as set forth herein.

91. As set forth herein, Defendant Coors intentionally, willfully and/or maliciously breached its contract with Plaintiff.

92. Moreover, Defendant Coors expected and/or should have reasonably expected Mr. James to rely on the aforementioned policies and procedures as a commitment by Defendant Coors to follow and abide by them, including the for cause and appeals process policies.

93. At all relevant times, Mr. James understood and reasonably relied on the aforementioned policies and procedures to his detriment and harm, both pecuniary and otherwise. 94. As set forth herein, Defendant Coors did not follow the aforementioned employment practices, policies and procedures. Specifically, Mr. James was not terminated for cause in that Defendant Coors did not properly determine whether or not there was cause and Coors did not follow its policies, practices and procedures with regard to the appeals process. 95. Substantial injustice can only be avoided by enforcing the promises made by Defendant Coors to Mr. James. 96. Defendant Coors’ breach of contract was a direct and proximate cause of the injuries, damages and harm suffered by Mr. James and as set forth herein. 97. Defendant Coors’ conduct was willful and wanton, and Mr. James is entitled to punitive/exemplary damages in addition to compensatory damages and other remedies available under the common law.

FOURTH CAUSE OF ACTION

Defendant Coros and Defendant Scherschligt individually and in her capacity as supervisor – Negligence

98. Plaintiff incorporates by reference the allegations set forth in the preceding paragraphs of the Complaint as though set forth at length herein.

99. Defendant Coors owed and continues to owe a duty of care to third parties, and more particularly to their employees such as Mr. James, to prevent their employees from acting in any way to harm co-employees.

100. Defendant Coors had a further duty to ensure that complaints of sexual harassment and sexual misconduct were properly handled and the investigation conducted in a fair, impartial and/or non-discriminatory manner.

101. Defendant Coors voluntarily contracted, promised and/or agreed and thereby assumed a legal duty to ensure that complaints of sexual harassment and sexual misconduct were properly handled and the investigation conducted in a fair, impartial and/or non-discriminatory manner, pursuant to its express employment policies.

102. Defendant Coors breached its duty of care owed to Mr. James by and through the following acts and/or omissions, which include but are not limited to:

A. Failing to properly and adequately train its managerial employees, including Defendant Scherschligt, to properly respond to complaints of sexual harassment;

B. Failing to properly and adequately train its managerial employees, including Defendant Scherschligt, to prohibit discriminatory employment practices, including discrimination based on gender, and/or race, and/or age;

C. Failing to carefully and diligently supervise its employees, including defendant Scherschligt, to prevent them from improperly handling complaints of sexual harassment and/or conducting the investigation in a non-discriminatory manner;

D. Failing to implement and/or take appropriate remedial action once it knew or should have known that its employees were mishandling complaints of sexual harassment and/or conducting the investigation in a discriminatory manner; and

E. Failing to conduct a reasonable, proper and appropriate investigation.

F. Failing to abide by its own express and implied employment policies and procedures; G. Failing to exercise reasonable care under the circumstances.

103. The above-named Defendants conduct was a direct and proximate cause of the injuries, damages and harm suffered by Plaintiff James.

104. Because the Defendants’ conduct toward Mr. James was improperly motivated, and was intentional, willful and wanton, Mr. James is entitled to punitive exemplary damages in addition to compensatory damages.

FIFTH CAUSE OF ACTION

All Defendants – Intentional Infliction of Emotional Distress

105. Plaintiff incorporates by reference the allegations set forth in the preceding paragraphs of the Complaint as though set forth at length herein.

106. As set forth herein, during his employment with Defendant Coors, Mr. James was subjected to a pattern of discrimination and misconduct in the workplace based, in whole or in part, on his gender, and/or race.

107. At all relevant times, the above-named Defendants knew or should have known that Defendant Mannon’s accusations against Mr. James were false. Despite said knowledge, Defendants ignored the evidence and attempted to coerce and intimidate other employees into implicating Mr. James in wrong-doing.

108. Despite actual and/or constructive knowledge that the accusations were unfounded, Mr. James was written-up and disciplined for alleged infractions of company policy, and was terminated from his employment. Moreover, the above-named Defendants have communicated to third parties, including the Jefferson County Police and District Attorneys office, that Mr. James was guilty of sexual misconduct and assault, despite actual and/or constructive knowledge that these accusations were false.

109. The above-named Defendants, by branding Mr. James a sexual molester and disciplining him for alleged infractions of company policy and terminating his employment, acted intentionally, recklessly and/or with deliberate indifference to a substantial probability that severe emotional distress would result to Mr. James.

110. The above-named Defendants’ actions towards Mr. James as set forth above, are evidence of a pattern of gender discrimination and/or race discrimination which further constitutes extreme and outrageous conduct.

111. The conduct of the above-named Defendants was outrageous in character and extreme in degree, because said conduct was atrocious and egregious, and went beyond all possible bounds of decency and is utterly intolerable in a civilized community.

112. The extreme and outrageous conduct of the above-named Defendants toward Mr. James was done in a willful and wanton manner, and constituted a disregard for the rights and well-being of Mr. James.

113. As a direct and proximate result of the above-named Defendants’ extreme and outrageous conduct, Mr. James suffered severe emotional distress.

114. Because the Defendants’ extreme and outrageous conduct toward Mr. James was improperly motivated, and was intentional, willful and wanton, Mr. James is entitled to punitive/exemplary damages in addition to compensatory damages.

SIXTH CAUSE OF ACTION

Defendant Mannon and Defendant Scherschligt, individually – Intentional Interference with a Contractual Relationship

115. Plaintiff incorporates by reference the allegations set forth in the preceding paragraphs of the Complaint as though set forth at length herein.

116. As set forth above and at all relevant times, an express and/or implied contractual relationship for continued employment existed between Defendant Coors and Mr. James.

117. At all relevant times, Defendant Mannon knew and/or should have known of the existence of the aforementioned contractual relationship between Defendant Coors and Mr. James.

118. As set forth herein, Defendant Mannon willfully gave false statements to Defendant Coors and others implicating Mr. James in sexual harassment, assault and misconduct. By so doing, Defendant Mannon intentionally induced Defendant Coors not to perform its contractual obligations in general, and to terminate Mr. James employment in particular.

119. The above-named Defendant’s intentional interference with the aforementioned contractual relationship was based upon her own self-serving motives, objectives and desires.

120. At all relevant times, Defendant Scherschligt knew and/or should have known of the existence of the aforementioned contractual relation between Defendant Coors and Mr. James.

121. As set forth herein, Defendant Scherschligt knew or had reason to know that the allegations of Defendant Mannon were false and motivated by self-interest.

122. In spite of said knowledge, Defendant Scherschligt was instrumental in conducting the investigation of Defendant Mannon’s allegations and conducted said investigation in a manner so as to intimidate and coerce Coors’ employees into supporting Defendant Mannon’s allegations.

123. In addition, Defendant Scherschligt was instrumental in improperly influencing and tainting the Appeals Board process so that Mr. James’ termination would be upheld.

124. The above-named Defendants’ intentional interference with the aforementioned contractual relationship was a direct and proximate cause of the injuries, damages and harm suffered by Mr. James.

125. Because the Defendants’ conduct towards Mr. James was improperly motivated, and was intentional, willful and wanton, Mr. James is entitled to punitive/exemplary damages in addition to compensatory damages.

SEVENTH CAUSE OF ACTION

Defendant Coors and Defendant Mannon –
Abuse of Process

126. Plaintiff incorporates by reference the allegations set forth in the preceding paragraphs of the Complaint as though set forth at length herein.

127. At the urging of Defendant Mannon and/or Defendant Coors, criminal charges were filed against Mr. James on or about June 10, 1996. These charges, for third degree sexual assault, are currently pending in Jefferson County, Colorado.

128. Upon information and belief, Defendant Coors prompted and/or encouraged Defendant Mannon to file the aforementioned criminal charges. Defendant Coors is otherwise liable for Ms. Mannon’s conduct pursuant to the theories of ratification, respondeat superior, agency and/or implied agency.

129. At all relevant times, the above-named Defendants knew or should have known that the charges were false and unfounded, and therefore intended to cause Mr. James harm.

130. At all relevant times, the above-named Defendants intended to, and did in fact, use the aforementioned criminal process for self-serving and improper motives and reasons, and to otherwise obtain a collateral benefit from the criminal process.

131. The above-named Defendants’ abuse of the Jefferson County criminal process was a direct and proximate cause of the injuries, damages and harm suffered by Mr. James.

132. Because the above-named Defendants’ conduct towards Mr. James was improperly motivated, and was intentional, willful and wanton, Mr. James is entitled to punitive/exemplary damages in addition to compensatory damages.

EIGHTH CAUSE OF ACTION

All Defendants – Defamation

133. Plaintiff incorporates by reference the allegations set forth in the preceding paragraphs of the Complaint as though set forth at length herein.

134. On or about April 23, 1996, Defendant Mannon told investigators from Defendant Coors and the Jefferson County Sheriff’s Department that Mr. James had groped her and tried to rip off her clothing. Defendant Mannon further alleged that Mr. James had verbally and physically accosted her on approximately four hundred (400) occasions over an eight (8) year period.

135. On or about April 24, 1996, Defendant Mannon repeated her allegations to investigators from Defendant Coors and the Jefferson County Sheriff’s Department, and further implicated Mr. James in sexual misconduct and/or sexual assault.

136. On or about April 29, 1996, Defendant Mannon repeated her allegations to investigators from Defendant Coors and the Jefferson County Sheriff’s Department, and further implicated Mr. James in sexual misconduct and/or sexual assault.

137. On or about April 30, 1996 Defendant Mannon repeated her allegations to investigators from Defendant Coors and the Jefferson County Sheriff’s Department, and further implicated Mr. James in sexual misconduct and/or sexual assault.

138. On or about January 23, 1997, Defendant Mannon repeated her allegations to investigators from Defendant Coors and the Jefferson County District Attorney’s office, and further implicated Mr. James in sexual misconduct and/or sexual assault.

139. On or about February 13, 1997, Defendant Mannon repeated her allegations to investigators from Defendant Coors and the Jefferson County District Attorney’s office, and further implicated Mr. James in sexual misconduct and/or sexual assault.

140. Upon information and belief, Defendant Mannon has repeated these allegations on numerous occasions to a variety of individuals, including but not limited to, Defendant Coors, the Jefferson County Sheriff and the District Attorney’s offices, and to others not presently known to Plaintiff.

141. All of the preceding oral statements by Defendant Mannon were thereafter transcribed and reduced to writing.

142. Furthermore, portions of Defendant Mannon’s oral statements, which had been reduced to writing, were republished, circulated and/or otherwise disseminated at the appeal hearing conducted on or about June 7, 1996.

143. At all relevant times, Defendant Mannon knew that her statements and allegations of sexual misconduct by Mr. James were false, and/or made with reckless disregard as to whether the statements were false or not.

144. As set forth herein, Mr. James never accosted and/or sexually assaulted Defendant Mannon, and has steadfastly denied all allegations of sexual harassment and misconduct.

145. As noted herein, Defendant Mannon’s false oral and written defamatory statements specifically pertained to Mr. James.

146. As set forth herein, Defendant Mannon’s false oral and written defamatory statements specifically alleged that Mr. James had perpetrated a crime, which constitutes libel and slander per se.

147. Upon information and belief, Defendant Coors, through its managerial employees including Defendant Scherschligt, republished Defendant Mannon’s defamatory statements.

148. Defendant Mannon’s defamatory oral and written statements were a direct and proximate cause of the injuries, damages and harm suffered by Mr. James.

149. Because the above-named Defendants’ conduct towards Mr. James was improperly motivated, and was intentional, willful and wanton, Mr. James is entitled to punitive/exemplary damages in addition to compensatory damages.

150. The above-named Defendants’ publication of a defamatory statement was a direct and proximate cause of the injuries, damages and harm suffered by Mr. James.

151. Because the Defendants’ conduct towards Mr. James was improperly motivated, and was intentional, willful and wanton, Mr. James is entitled to punitive/exemplary damages in addition to compensatory damages.

ADDITIONAL PARTIES AND/OR CLAIMS

152. Mr. James was replaced by a white individual who had been disciplined by Coors for engaging in racist behavior.

153. However, Mr. James does not currently have sufficient information to determine whether or not his termination was the result of intentional racial discrimination.

154. Mr. James does not currently know the age of the individual who replaced him or have sufficient information to determine whether or not his termination was the result of intentional age discrimination.

155. Mr. James respectfully requests leave to amend his Complaint to add additional parties and/or claims upon completing initial discovery. It may be necessary to name agents or employees of the above-named Defendants, and to add additional claims such as intentional discrimination based on race pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq., and 42 U.S.C. Section 1981; intentional discrimination based on age pursuant to the Age Discrimination in Employment Act, 29 U.S.C. Section 620 et seq, conspiracy, malicious prosecution and negligent hiring if additional investigation and discovery elicits information that supports such claims.

DAMAGES

152. The conduct of the above-named Defendants, as set forth herein, in violating Mr. James’ rights under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section(s) 2000e et seq.; the Civil Rights Act of 1866, as amended by the Civil Rights Restoration Act of 1991, 42 U.S.C. Section 1981; and the common law of Colorado, caused injuries, damages and harm to Mr. James, including, but not limited to, past and future economic loss, past and future non-economic losses, including extreme emotional distress, loss of reputation, shame, humiliation, pain and suffering, inconvenience, mental anguish, impairment in the quality of life; and consequential losses.

WHEREFORE, Plaintiff Homer James requests judgment and damages against Defendants, the Coors Brewing Company, Yvonne Mannon and Tara Scherschligt, jointly, severally and/or individually, as follows:

A. A declaratory judgment that Defendants have violated Mr. James’ right to be free from discrimination in the workplace pursuant to the Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sections 2000e, et seq.; the Civil Rights Act of 1866, as amended by the Civil Rights Restoration Act of 1991, 42 U.S.C. Section 1981; 42 U.S.C. Section 1981A;

B. Enter an injunction ordering Defendant Coors to make Plaintiff whole with full back pay, benefits and reinstatement to a position Mr. James would have obtained in the absence of discrimination or, in the alternative, front pay.

C. An award to Mr. James for compensatory damages in amount to be shown at trial for past and future economic and non-economic losses, including extreme emotional distress and mental anguish, impairment of the quality of life; and consequential loses;

D. An award to Mr. James for exemplary and/or punitive damages in an amount to be shown at trial;

E. An award to Mr. Miller for reasonable attorneys’ fees and costs, including but not limited to expert witness fees, as provided in Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e-5(k), 42 U.S.C. Section 1981A, 42 U.S.C Section 1988 and as provided under state law;

F. An award to Mr. James of interest on any awards at the highest rate allowed by law; and

G. Such other and further relief as this Court deems just and appropriate. PLAINTIFF REQUESTS TRIAL TO A JURY ON ALL CLAIMS ALLOWED BY LAW

Respectfully submitted this ______ day of May, 1997.

SILVERN LAW OFFICES, P.C.

________________________________
Steven Silvern
Kara T. Birkedahl
Edmund M. Monas
1801 Broadway, Suite 930
Denver, Colorado 80202
(303) 292-0044

ATTORNEYS FOR PLAINTIFF
Plaintiff’s address:
18925 East 45th Avenue
Denver, Colorado 80249