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Michael Bhojak v. Victor Community Support Services

April 24, 2013

MICHAEL BHOJAK,
PLAINTIFF,
v.
VICTOR COMMUNITY SUPPORT SERVICES, DEFENDANT.



The opinion of the court was delivered by: John A. Mendez United States District Court Judge

AMENDED PRETRIAL CONFERENCE ORDER

Pursuant to court order, a Pretrial Conference was held on April 12, 2013 before Judge John Mendez. Gregory P. Einhorn appeared as counsel for plaintiff; Michael A. Bishop and Shelbi L. Ovenstone appeared as counsel for defendant. After hearing, the court makes the following findings and orders:

I. JURISDICTION/VENUE

Jurisdiction is predicated upon 28 U.S.C. §1331, and has previously been found to be proper by order of this court, as has venue. Those orders are confirmed.

II. JURY/NON-JURY

Both parties have demanded a jury trial.

III. STATEMENT TO BE READ TO JURY

Seven (7) days prior to trial the parties shall E-file a joint 3 statement of the case that may be read to the jury at the beginning 4 of jury selection. 5

IV. UNDISPUTED FACTS

The parties agree that the following facts are undisputed:

1. Plaintiff was hired on or about July 6, 2004 for the Insurance Coordinator position offered by Defendant.

2. On or about September 2007, Plaintiff was promoted to the position of Contract Compliance Specialist.

3. For the duration of his employment, Plaintiff worked at Defendant's administrative office, located in Chico, California.

4. Between the years of 2008 and 2010, Plaintiff requested, and was granted, leave from Defendant.

5. This leave was requested, and granted, under state and federal law, specifically, the FMLA and CFRA.

6. Plaintiff's employment was terminated by Defendant on September 2, 2010.

7. From approximately June 22, 2009 through the date of Plaintiff's termination, Plaintiff's immediate supervisor was James

P. White.

8. James P. White was the Office Services Manager for Defendant's administrative office in Chico, California.

9. During Mr. White's employment with Defendant, the budget for the administrative office was based on the income received by all of Victor's programs throughout the State: a percentage of all of the programs' income came to the administrative Office.

10. Defendant is subject to the ADA, FMLA, CFRA and FEHA rules and regulations. 2

11. Plaintiff was not on medical leave at the time of his

3 involuntary termination. 4

t

V. DISPUTED FACTUAL ISSUES

The following facts are in dispute:

1. Whether Defendant considered Plaintiff's use of medical leave as a factor in its decision to terminate him.

2. Whether Defendant was experiencing budgetary constraints at the time of Plaintiff's termination.

3. Whether Defendant had undergone budget cuts at the time of Plaintiff's termination.

4. Whether Defendant terminated Plaintiff's employment based on his disability.

5. Whether Defendant's stated reason for Plaintiff's termination was a pretext for discrimination.

6. Whether Defendant failed to reasonably accommodate Plaintiff's disability.

VI. DISPUTED EVIDENTIARY ISSUES

Plaintiff takes exception to Defendant's proposed Exhibit 43:

3 a string of emails concerning a car accident in February of 2010. 4

Plaintiff contends this exhibit is not relevant to the lawsuit. 5

VII. RELIEF SOUGHT

Plaintiff seeks the following monetary damage:

1. Back pay (wages and benefits);

2. Front pay;

3. Liquidated damages under the FMLA;

4. Compensatory damages (including pain, suffering, humiliation, emotional distress);

5. Prejudgment interest;

6. Punitive damages;

7. Attorneys' fees; and

8. Costs

VIII. POINTS OF LAW

Trial briefs shall be E-filed with the court no later than seven (7) days prior to the date of trial, i.e., May 13, 2013. Any points of law not previously argued to the Court should be briefed in the trial briefs.

IX. ABANDONED ISSUES

Plaintiff has not abandoned any claims for relief.

Pursuant to the Court's prior ruling on Defendant's Motion for Summary Judgment, Defendant has abandoned the argument that Plaintiff failed to exhaust all administrative remedies based on the fact that Plaintiff's filing of a DFEH complaint was deemed to be sufficient to satisfy the necessary exhaustion of any EEOC remedies.

X. WITNESSES

Plaintiff anticipates calling the following witnesses:

1. Plaintiff, Michael Bhojak

2. Deborah Bhojak

3. James P. White

4. John Helvey

5. Monte Buckhold

6. Cathy Rayden

7. Lisa Finwall Defendant anticipates calling the following witnesses:

1. Plaintiff Michael Bhojak

2. James P. White

3. John Helvey

4. Monte Buckhold

5. Cathy Rayden

6. Ray Mestas

7. Doug Scott Each party may call a witness designated by the other.

A. No other witnesses will be permitted to testify unless:

(1) The party offering the witness demonstrates that the witness is for the purpose of rebutting evidence which could not be reasonably anticipated at the Pretrial Conference, or

(2) The witness was discovered after the Pretrial Conference and the proffering party makes the showing required in "B" below.

B. Upon the post-Pretrial discovery of witnesses, the attorney shall promptly inform the court and opposing parties of the existence of the unlisted witnesses so that the court may consider at trial whether the witnesses shall be permitted to 2 testify. The evidence will not be permitted unless: 3

(1) The witnesses could not reasonably have been

4 discovered prior to Pretrial; 5

(2) The court and opposing counsel were promptly

6 notified upon discovery of the witnesses; 7

(3) If time permitted, counsel proffered the witnesses

8 for deposition; 9

(4) If time did not permit, a reasonable summary of the witnesses' testimony was provided opposing counsel.

XI. EXHIBITS, SCHEDULES AND SUMMARIES Plaintiff intends to introduce the following exhibits:

1. September 2, 2010 termination letter.

2. Personnel Action form dated 4/3/2009 (2 pages).

3. April 6, 2009 letter from VCCS.

4. Medical Certification - FMLA/CFRA dated 3/6/2009.

5. Victor Treatment Centers, Inc. Annual Evaluation Form -Contracts Compliance Specialist, dated 12/18/09 (6 pages).

6. Supervision Notes - Michael Bhojak, dated February 2, 2009.

7. Supervision Log - dated 4/19/2006.

8. Personnel Action form - dated 4/19/2006.

9. April 24, 2006 email from Plaintiff to Monte Buckhold and Ray Mestas ...


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