Sloan v. Ameristar Casinos, Inc. et al

Filing 117

ORDER denying 108 Plaintiff's Motion for Reconsideration of Order Denying Motion to Compel and Motion for Additional Sanctions, by Magistrate Judge Kathleen M. Tafoya on 11/19/13.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12-cv-01126-RM-KMT
LEANNE SLOAN, individually and on behalf of others similarly situated,
Plaintiff,
v.
AMERISTAR CASINOS, INC., and
AMERISTAR CASINO BLACK HAWK, INC.,
Defendants.
______________________________________________________________________________

ORDER
______________________________________________________________________________
This matter is before the court on “Plaintiff’s Motion for Reconsideration of Order
Denying Motion to Compel and Motion for Additional Sanctions” [Doc. No. 108], filed October
15, 2013. Defendants filed their Response [Doc. No. 114] on November 8, 2013.
Plaintiff challenges the Court’s Order dated October 8, 2013 [Doc. No. 103] (“October 8
Order”) denying Plaintiff’s Motion to Compel [Doc. No. 84], contending it contains clear error
that must be revisited to prevent manifest injustice, invoking Servants of Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000) (In the context of a Rule 59(e) motion to reconsider a judgment,
“[g]rounds warranting a motion to reconsider include (1) an intervening change in the controlling
law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent
manifest injustice.”).
In the October 8 Order, this court acknowledged Defendants’ improper behavior directed
at currently employed putative class members during the period shortly before and shortly after
mailing of the class-wide, court-approved notice of the suit and opportunity to join. Similar
intimidating behavior by Defendants directed at former employees was the subject of this court’s
1

previous order imposing significant sanctions [Doc. No. 68] (“First Sanction Order”). That order
is the subject of a pending objection to the District Court pursuant to Fed. R. Civ. P. 72(b). [Doc.
No. 70.]
As part of the First Sanction Order, this court required that Defendants disclose all their
oral and written communications with currently employed putative class members about this case.
This sanction provision was not intended as an open-ended invitation to request further sanctions
as argued by Plaintiff, but rather was designed to obtain full disclosure of all wrongful conduct so
that effective counterbalancing measures could be crafted by the court as part of the new notice
and other communications to be sent to all putative class members when the collective action
proceeds.
As to Defendants’ conduct toward current employees as described by Defendants in their
court-ordered production, this court stated in the October 8 Order
Altogether, although the Court reiterates that it finds the conduct engaged in by
Defendants to have been deceitful, underhanded and designed specifically to thwart
the proper functioning of the judicial system, there is no useful purpose to piling on
additional sanctions for behavior that is part of a continuous pattern and which has
previously been the subject of a sanction order. This court concludes that the
interests of justice would best be served by allowing District Court Judge Raymond
P. Moore to review the defendants’ behavior on the record as a whole and decide
whether or not the sanctions already imposed by this court are justified, legally
permissible and reasonable upon his review of the objections on file.
Id. at 5. Important to this finding is that, although only discovered subsequent to the entry of the
First Sanction Order, Defendants’ wrongful conduct was directed toward current employees
during the same time period Defendants were found to be wrongfully intimidating their former
employees. Defendants’ transparent goal with respect to both current and former employees was
to thwart the judicial process and deter the employees from joining the action.
2

Plaintiff alleges that the October 8 Order was in error because Defendants’ actions directed
at the former employee putative class members differed from the actions directed at current
employees, to wit: the threats and intimidation directed at current employees involved “repeated
face-to-face intimidation,” whereas the threats and intimidation directed at the former employees
was through a letter. Additionally, Plaintiff argues that because monetary sanctions in the First
Sanction Order were based on the number of former employee victims, the total amount of the
monetary sanction should have been expanded commensurate with the total number of victims,
including the current employees, in order to be consistent. Finally, Plaintiff complains that it is
unjust to deny additional sanctions “despite uncovering misconduct that occurred in a more
coercive manner and more than doubles the scope of the damage done.” (Mot. at 3, emphasis in
original.)
While the court is sympathetic to Plaintiff’s outrage, the argument that the scope of the
damage done to Plaintiff has significantly increased from that apparent at the time the First
Sanction Order was entered is simply incorrect. The court acknowledged on February 26, 2013,
that the Defendants had effectively crushed Plaintiff’s potential class action by their wrongful
behavior resulting in zero opt-in members from either former or current employees. Even absent
evidence of coercion by a defending company in an FLSA case, former employees are more likely
to join in a wage-based collective action than those employees still working for the defendant due
to their perception that joining in a legal action against their employer might cast them in an
unfavorable light and jeopardize their continued employment. 1 See, e.g., Alamo Foundation v.

1

Of course, the FLSA prohibits such conduct: “[I]t shall be unlawful for any person . . . (3) to
discharge or in any other manner discriminate against any employee because such employee has
3

Secretary of Labor, 471 U.S. 290, 302 (1985) (“employers might be able to use superior
bargaining power to coerce employees to make [assertions negating the Plaintiff’s allegations] or
to waive their protections under the [FLSA].”) It was important to this court’s consideration in
the First Sanction Order, therefore, that not even one of the former employees, including some
who had been fired by the Defendants and therefore could be expected to be disgruntled, had opted
into the collective. Further, Defendants’ claim that the failure to join the collective by current
employees is a result of the employees’ own evaluation of their worth (Resp. at 13) does not
change the fact that no employee joined the collective action after Defendants’ forced meetings
about the case. See Reab v. Electronic Arts, Inc., 214 F.R.D. 623, 629 (D. Colo. 2002)
(“Plaintiffs’ subjective belief as to their status under the FLSA is irrelevant to the question whether
to conditionally certify a class.”) Ultimately the damage to Plaintiff now is the same as it was at
the time of the First Sanction Order – Plaintiff has been foreclosed completely from pursuing her
class-action claim.
As noted by Defendants, no litigant is necessarily entitled to additional sanctions under
these circumstances. See, e.g., Stransky v. HealthONE of Denver, Inc., 929 F.Supp.2d 1100, 1109
(D. Colo. 2013). The court, in its First Sanction Order, tailored the sanctions it imposed to
achieve specifically-delineated results in remediation of the wrongful conduct of Defendants.
The court continues to feel that the sanctions contained in the First Sanction Order are appropriate
and sufficient to: deter the conduct engaged in by Defendants against all its employees, both
former and current; inspire hope that the case can be put back on its proper judicial track by a

filed any complaint or instituted or caused to be instituted any proceeding under or related to this
chapter . . . .” 29 U.S.C. § 215(a)(3)
4

newly-crafted notice to all putative class members; and impose sanctions sufficient to warn others
that behavior such as that engaged in by Defendants may have serious consequences, thereby
deterring similar conduct by other litigants in the future. 2
The court does not agree that its two orders are inconsistent on any basis, or that the
October 8 Order is unjust. Given that any award of sanctions is discretionary, the Plaintiff has
failed to establish clear error or manifest injustice entitling it to reconsideration of the October 8
Order.
It is therefore
ORDERED that “Plaintiff’s Motion for Reconsideration of Order Denying Motion to
Compel and Motion for Additional Sanctions” [Doc. No. 108] is DENIED.
Dated this 19th day of November, 2013.

2

The court found in the First Sanction Order that, having been advised by its counsel that the
sanctions for willful interference with the court process during an FLSA case were negligible,
Defendants made a business decision that it was worth the risk of receiving a “slap on the hand”
from the court if they could annihilate Plaintiff’s possibility of gathering class members in the first
instance, rather than incur the costs of defending the case on the merits.
5