By: Jeff Birren, Senior Writer
Todd Romero is a Denver-based sports television announcer. For years, he hosted various local sports events, including the Denver Nuggets pre-game and post-game shows. After he went through drug-dependency treatment he was demoted by his employer, Altitude Sports (“Altitude”). Romero then sued Altitude, and recently the U.S. District Court in Denver granted one of Romero’s two motions to amend his complaint.
Background
Romero was born and raised in Denver and also attended college there. He began covering Denver’s sports teams decades ago. He was jointly hired by Altitude and Kroenke Sports & Entertainment LLC (“Kroenke Sports”) in 2012 to host the pregame and post-game shows for the Nuggets. He also does play-by-play for local high school football games and the men’s and women’s basketball games at the University of Denver.
Some years later, Romero sought treatment for prescription-drug dependency. According to Romero, he used vacation time to receive inpatient treatment for his prescription medication addiction related to a severe neck injury. That is when the problems allegedly began. Romero alleged, Altitude “intentionally discriminated against” him by “removing him from a successful sports host and reporter…to a literal afterthought who provides short features on gambling, taped from his home computer, during the same games that he used to host.” Romero also claimed that Altitude “paid Romero less than his non-Hispanic, non-brown-skin-colored peers despite his consistently stellar performance” (Todd Romero v. Altitude Sports & Entertainment LLC, et al, U.S. Dist. Ct. CO, Case No. 21-CV-885 (“Complaint”) at 1, (3-26-21)).
The Litigation Begins
Romero sued Altitude and Kroenke Sports, filing a 34-page Complaint. He had nine causes of action, including claims for discrimination and retaliation in violation of the Americans with Disabilities Act; discrimination because of race and national origin, and retaliation in violation of Title VII; discrimination based on race, color, national origin, and retaliation in violation of 42 U.S. Section 1981; discrimination and retaliation in violation of age; and breach of contract. Romero asserted that Altitude “intentionally and unlawfully discriminated against him by not renewing his contract, falsely claiming that all on-air talent was being moved to at-will employment and taking away his on-air host duties…in favor of other hosts” who are not people of color (“Inside Todd Romero’s Lawsuit Against Altitude TV”, Michael Roberts, Westworld (4-12-21)). Romero sought compensatory damages, backpay, punitive damages and attorneys’ fees. The case was assigned to District Court Judge Christine M. Arguello.
Altitude and Kroenke Sports filed a motion for an extension of time to Answer or Respond (Doc. #9) and answered on April 29, 2021 (Doc. #11). The parties consented to assignment to a magistrate judge, and discovery began. Before 2021 ended the parties were in a dispute over who could see compensation information produced in discovery. They took this dispute to Magistrate Judge S. Kato Crews. Judge Crews ruled that such information could be designated as “Confidential” but not “Attorneys’ Eyes Only” (Doc. #33). Consequently, Romero could see the confidential salary information. Altitude appealed that order to Judge Arguello (Doc. #36) and Romero filed an opposition (Doc. #37).
Judge Arguello affirmed the magistrate’s ruling, finding that the defendants “had not met their burden of showing good cause” for “Attorneys’ Eyes Only” protection. Furthermore, there was “no clear error or abuse of discretion in Judge Crews’s conclusion that ‘a confidential’ designation is sufficient to protect Defendants’ interests and the interests of these non-parties’ with respect to the compensation information in this case” and overruled all objections (Romero, Order (4-5-22)).
The Fun Continues
The deadline to amend the pleadings was July 13, 2021. Undeterred, Romero filed a motion to supplement his Complaint on February 22, 2022 (Doc. #43). The defendants filed an opposition (Doc. #46), and Romero replied (Doc. #47). Before that motion was heard, Romero filed a Second Motion to Supplement on August 4, 2022 (Doc. #55). The defendants again opposed the motion. At this point the Court stepped in and exercised “its discretion” under the local rules of court “to rule on the Second Motion to Supplement without awaiting the benefit of a Reply” (Opinion, at 2 (8-30-22)).
The Court stated that because “the deadline to amend pleadings has long passed” there was a two-step analysis. The pleadings could only be amended “for good cause and with the judge’s consent.” The moving party had to show “the scheduling deadlines cannot be met” despite that party’s “diligent efforts.” FRCP 16 states “good cause requirement” may be satisfied “if a plaintiff learns new information through discovery or if the underlying law has changed.” Rule 16 “focuses on the diligence of the party seeking to modify the scheduling order” (Id.).
The second step, under FRCP 15(d), gives the Court “broad discretion” and leave to amend “shall be freely given when justice so requires.” The motion may be denied due to “undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” The opposing party has the burden to prove “that the amendment should be refused on one of these bases” (Id.).
The First Motion to Supplement
Romero alleged that the “Defendants have continued their discriminatory and retaliatory actions against [him], which have escalated and caused [him] further severe emotional distress and lasting damage to his reputation among the public and those in the industry.” Romero sought to add events that occurred after he initially sued “in support of his request for injunctive relief.” This included allegations “that he has been entirely excluded from hosting duties for Nuggets and Avalanche games for the 2021-2022 seasons” and that the defendants “have assigned” him “to host a low-profile sports betting show with much lower television ratings as pretext for discriminatory/retaliatory reasons.” Romero “seeks to add prayers for injunctive relief restoring him to his previous position, or awarding him front pay in lieu of reinstatement, and prohibiting Defendants from violating Title VII, the ADA, the ADEA, and any of Plaintiff’s other constitutional rights” (Id., at 2/3).
Romero asserted that good cause existed to allow these changes because it did not involve different issues “but describes the continuation of events that have occurred since the filing of his Complaint” (Id., at 3). Finally, Romero stated that there was no prejudice to the defendants because when he filed the motion “discovery had barely begun, no documents had been exchanged, and no depositions had been taken” (Id.).
The defendants naturally opposed the motion. They asserted that the motion was “untimely and that Plaintiff unduly delayed in seeking to supplement.” The Court acknowledged that the motion was filed “approximately six months after the deadline to file an amended pleading.” However, Romero “demonstrated good cause for the delay in that the new alleged events happened—and continued to happen—during the time period between the amendment deadline” and his First Motion to Supplement. Moreover, Romero could not have known when he filed the case that “he would be permanently removed from hosting duties.” He also identified several “instances … when on-air hosts were sick or on vacation and unable to host Nuggets or Avalanche games, but Defendants refused to allow Plaintiff to fill in as a host. Under these circumstances, the Court finds that Plaintiff has adequately explained his delay in filing the First Motion to Supplement and that such delay was not ‘undue’” (Id.).
Prejudice
The Court then turned to the question of whether the defendants were prejudiced by the delay. Undue prejudice occurs “when an amendment unfairly affects the opposing party ‘in terms of preparing their defense to the amendment.’” This happens “when the amendment claims arise out of subject matter different from what was set forth in the complaint and raises significant new factual issues.” The defendants argued that the proposed allegations “will require new evidence and likely new witnesses” though they conceded that Romero could nevertheless assert the proposed allegations “as further support for his claims as pled in his original Complaint.” The Court agreed with Romero that “there is no prejudice” because as of the date of the motion, discovery “had barely begun.” Furthermore, “the new allegations supporting injunctive relief are substantially similar to those already in the Complaint” and thus the defendants “would not be prejudiced by the Supplemental Complaint” (Id.). Consequently, Romero “adequately demonstrated good cause for modifying the scheduling order” and it “will not unduly prejudice Defendants. The Court therefore grants Plaintiff’s First Motion to Supplement” (Id., at 4).
Romero’s Second Motion to Supplement
This motion sought to add facts learned during a June 2022 deposition. Those allegations were: (1) defendants refused to offer Romero an employment contract because of the pending lawsuit, based on the advice of counsel; (2) counsel instructed defendants to offer employment contracts to all other similarly situated on-air talent; (3) Romero had been denied salary raises since 2019 due to his discrimination charges, though other on-air talent received raises; (4) and for the past six years, Romero was paid “between two and two-and-a-half times less per year than other on-air talent.” Romero did not attempt to add any new claims or prayers for relief. These allegations were intended to “bolster the claims alleged and the relief requested” (Id.).
The Court was not impressed. These new allegations were filed more than thirteen months after the deadline to amend the pleadings had passed. This was sufficient reason to deny the motion. Furthermore, Romero did not seek to add additional claims, but the proposed amendments were only to “bolster” his allegations. The Court agreed “with Defendants that the purpose of Rule 15 and Rule 16 would be undermined were a plaintiff granted leave to update his complaint each time the plaintiff learned facts supporting his allegations.” In addition, Romero “knew information to assert these allegations” prior to the deposition because he knew “that he had not been offered a new contract or received a pay increase since he filed his charges in 2020 and his lawsuit in March 2021” (Id.).
Furthermore, Romero’s Complaint “alleged that the decision not to renew his contract was communicated to Plaintiff in 2018, well before” he filed his charges of discrimination (Id. at 5). The new material was “duplicative because Plaintiff already alleged in his original Complaint” that he had been paid less than his non-Hispanic peers. These additional allegations were thus “untimely” and “are either duplicative of or in tension with the allegations in the existing Complaint.” The Court cited cases that state there “is no absolute right to repeatedly amend a complaint.” The Court found that the “Second Motion to Supplement is untimely, and that Plaintiff has not established good cause for amending the scheduling order to permit further supplementation” (Id.).
Further Developments
Romero filed his Amended Complaint on September 7, 2022. The Court then granted a joint motion for a telephonic hearing to resolve pending discovery issues. It was assigned to the Magistrate and was heard on September 16, 2022. Judge Crews ruled that the defendants “shall provide all amended discovery responses within the next fourteen days.” Discovery is set to be completed by December 9, 2022. Dispositive motions are to be filed by January 9, 2023, and the final pretrial conference is scheduled for March 15, 2023 (Doc. #69, (9-16-22)). Altitude and Kroenke Sports answered the Amended Complaint on September 20, 2022 (Doc. #71).
One of Romero’s lawyers then filed a motion to withdraw from the case. That was granted on October 6, 2022 (Doc. #76). One day later new counsel filed a “Notice of Entry of Appearance.” What makes this case somewhat peculiar is that this is not the first counsel to withdraw from the case. The first motion to withdraw was filed on July 22, 2021 (Doc. #22). Another motion to withdraw was filed on January 12, 2022 (Doc. 38). A third such motion was filed on April 27, 2022, (Doc. #49). In a case less than 20 months old, this recent motion was the fourth motion to withdraw as counsel.
Conclusion
The case is now in the discovery home stretch. Such cases typically settle before trial, but given the internal upheaval within Romero’s camp that may not be possible. The private goings on in this case to date are likely even more interesting than what is available in the public record. Romero had a long on-air career prior to his demotion, so at least for much if it he must have been doing a good job. Consequently, at this distance one can only wonder what impact the prescription pain medication rehabilitation had on Romero’s job performance, or how he was perceived by his supervisors. An impending trial could get ugly.
