Kennedy v. Colorado RS, LLC et al

Filing 98

ORDER. ORDERED that Defendant's Partial Rule 12(b)(6) Motion to Dismiss the Second and Fourth Causes of Action in Plaintiff's Amended Complaint 56 is GRANTED IN PART AND DENIED IN PART by Chief Judge Wiley Y. Daniel on 02/01/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 10-cv-02240-WYD-MJW
PATRICK KENNEDY,
Plaintiff,
v.
COLORADO RS, LLC, a Delaware corporation, d/b/a “RIVERSTONE RESIDENTIAL
GROUP SW”; and
CAS PARTNERS, LLC, a Texas corporation,
Defendants.

ORDER

I.

INTRODUCTION
Plaintiff filed his First Amended Complaint and Jury Demand (“Complaint”) [ECF

No. 53], on July 14, 2011. Plaintiff brings four claims for relief against his former
employer: (1) Unfair Labor Standards; (2) Wrongful Termination in Violation of Public
Policy; (3) Violation of the Americans with Disabilities Act as amended in 2009 (ADA);
and, (4) Violation of the Employment Retirement Income Security Act (ERISA). This
matter is before the Court on Defendant’s Partial Rule 12(b)(6) Motion to Dismiss the
Second and Fourth Causes of Action in Plaintiff’s Amended Complaint [ECF No. 56],
filed July 28, 2011. Plaintiff filed his Response [ECF No. 63] on September 6, 2011,
and Defendant filed its Reply [ECF No. 68] on September 22, 2011.

II.

BACKGROUND
This case arises from the events surrounding the termination of Plaintiff Patrick

Kennedy by Defendant Riverstone Operating Company, Inc., (“Riverstone”) 1 on
February 10, 2010. (Compl., ¶ 7.) The Complaint alleges that Mr. Kennedy was a
maintenance employee at Riverstone’s Clear Creek Commons (“CCC”) property, an
independent living facility for elderly residents. (Id., ¶ 5.) During the course of his
employment, Mr. Kennedy’s supervisor was Kathleen Trujillo. (Id., ¶ 9.) Beginning in
2008, Mr. Kennedy began raising concerns to Trujillo about lax security around the
office. (Id.) He was particularly concerned by the fact that the resident’s confidential
files containing personal and financial information were stored in an unlocked room.
(Id.) Mr. Kennedy also alleges that throughout his employment he was frequently
required to work through his lunch break and that he was required to work during
holidays to assist with events for the residents. (Id., ¶ 10.)
In October 2009, Mr. Kennedy was diagnosed with diverticulitis and potentially
cancerous polyps. (Id., ¶ 11.) He underwent surgery in December 2009 to remove part
of his colon. (Id., ¶ 13.) In anticipation of his medical leave, Mr. Kennedy requested
short-term disability benefits from Riverstone. (Id., ¶ 13). Mr. Kennedy claims that
Riverstone received a request for more information from the disability carrier regarding
his request in early January 2010. (Id.) Mr. Kennedy returned to work on January,11
2010, and submitted a physician-mandated work restriction that prohibited him from
lifting more than 15 pounds. (Id., ¶14).

1

Defendant states that it has been incorrectly named as “Colorado RS, LLC” and “CAS Partners,
LLC” in the case caption. This Order will accordingly refer to Defendant as “Riverstone.”
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On January 21, 2010 the residents’ personal files were stolen from an unlocked
room and cabinet at CCC. (Id., ¶ 15). Mr. Kennedy alleges that his supervisor Trujillo
instructed him to lie to the police by telling them the files were locked up. (Id., ¶ 16-17).
Mr. Kennedy refused and Trujillo sent him home, stating that he was putting himself
against the company. (Id., ¶ 19-20.) Rather than inform residents individually about the
theft, Riverstone placed a note on the front desk explaining the files had been stolen.
(Id., ¶ 22-24.)
The day after the theft, Mr. Kennedy alleges Trujillo assigned him tasks that
violated his work restrictions including moving a washer and dryer, cleaning the entire
residential grounds and storage units, painting an apartment, and replacing a toilet. (Id.,
¶ 29-30). He also alleges Trujillo created a new policy, requiring him to account for
every moment of his work time, which none of the other employees were required to
follow. (Id., ¶ 32.) On January 26, 2010, Riverside held a meeting where all
employees, including Mr. Kennedy, were threatened with termination if they discussed
the stolen files. (Id., ¶ 37.)

Mr. Kennedy claims that on February 2, 2010 he was

asked but refused to sign a document he presumed to be disciplinary in nature. (Id., ¶
39.)
Mr. Kennedy claims that on February 1, 2010 he received a letter from the
disability carrier rejecting his application for short-term disability benefits because
Riverside had not completed the necessary paperwork. (Id., ¶ 40.) On February 10,
2010 Mr. Kennedy was terminated for “fraternization with residents” because he had
shared information about the files. (Id., ¶ 41.) Mr. Kennedy claims this was a pretext
and that he was actually terminated for refusing to lie to the police. (Id., ¶ 42.)

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III.

ANALYSIS
A. Standard of Review
The Federal Rules of Civil Procedure provide that a defendant may move to

dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). “The court’s function on a Rule 12(b)(6) motion is not to weigh
potential evidence that the parties might present at trial, but to assess whether the
plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be
granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and
quotation marks omitted). “A court reviewing the sufficiency of a complaint presumes all
of plaintiff’s factual allegations are true and construes them in the light most favorable to
the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to
dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. If the allegations
state a plausible claim for relief, the claim survives the motion to dismiss. Id. at 1950.
B. Whether Dismissal is Appropriate as to Kennedy’s Second Claim For
Wrongful Discharge
Riverstone asserts that no wrongful discharge claim may lie where the statute on
which the claim is premised provides a remedy for wrongful discharge. Riverstone
argues that because the ADA and the Colorado Anti-Discrimination Act (“CADA”)

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provide a full measure of remedies, Kennedy may not bring a wrongful discrimination
claim based on either statute.2
Riverstone directs me to a line of cases holding that under Colorado law no
wrongful discharge claim may lie where the statute on which the claim is premised
provides a remedy. Gamble v. Levitz Furniture Co. of the Midwest, Inc., 759 P.2d 761,
766 (Colo. App. 1988) (holding that public policy claims are unavailable where “the
statute in question provides the employee with a wrongful discharge remedy”); Caspar
v. Lucent Techs., Inc., 280 F. Supp. 2d 1246, 1249 (D. Colo. 2003) (holding that a
wrongful discharge claim is not available given the availability of Title VII remedies);
Krauss v. Catholic Health Initiatives Mountain Region, 66 P.3d 195, 203 (Colo. App.
2003) (stating that employee could not base wrongful discharge claim on the Family
Medical Leave Act because the Act provides its own remedies for retaliatory discharge);
Hein v. AT&T Operations, Inc., No. 09-cv-00291-WYD-CBS, 2010 WL 5313526, at *6
(D. Colo. Dec. 17, 2010) (noting that “[u]nder Colorado law, even if a public policy
exception is appropriate, it is not available when the statute in question provides a
remedy for retaliatory discharge,” and dismissing a wrongful discharge claim because
the Sarbanes-Oxley Act provided its own remedy for retaliatory discharge).
In response, Mr. Kennedy argues that Brooke v. Restaurant Services, Inc., 906
P.2d 66 (Colo. 1995), supports a finding that wrongful discharge claims premised on the
CADA are not barred. In Brooke, the Colorado Supreme Court held that the CADA is
not the exclusive remedy for employment-related sex discrimination. Id. at 67. The
Brooke court began its analysis by stating the general rule that federal and state
2

Riverstone argues that Kennedy’s second claim should be dismissed only to the extent it is
based on the ADA and the CADA. Kennedy also bases his second claim on Colo. Rev. Stat. §§ 18-8-101
to 116.
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remedies for civil rights violations are cumulative, not exclusive. Id. at 68. If the
legislature wishes to bar preexisting common law rights with the creation of a statutory
private right of action, “it must manifest its intent either expressly or by clear
implication.” Id. The court reasoned that because the CADA offers less than a
comprehensive remedial scheme, such intent could not be found in the Act. Id. at 6970. Specifically, the CADA provides no redress to an employee for discriminatory
conduct that does not result in an employment-related decision, and damages are not
available under the Act. Id. at 69. Moreover, remedies under the CADA “are only
incidental to the Act’s primary purpose of eradicating discriminatory practices by
employers,” and “the duties of the [Colorado Civil Rights Commission], in addition to
enforcing the compulsory provisions of the Act, are geared toward eliminating
discriminatory practices on a broad scale rather than addressing the harm such
practices cause on a case-by-case basis.” Id. The Brooke court concluded by noting
that its analysis is applicable to all other forms of prohibited discrimination, including
discrimination based on handicap. Id. at 70 n.4.
1. The CADA
I agree with Kennedy that a wrongful discharge claim premised on the CADA
may lie. As I have previously found, the Brooke court “clearly addressed whether CADA
may form the basis for a claim of wrongful discharge in violation of public policy, holding
that it may.” Bronikowski v. Dish Commc’ns, No. 01-D-0457, at 4 (D. Colo. Sep. 12,
2001) (unpublished order); see also Van DeWege v. Storage Tech. Corp., No. 97-B1599 (D. Colo. Oct. 8, 1998) (unpublished order) (in light of Brooke, denying motion to
dismiss wrongful discharge claim premised on the CADA). Thus while Gamble and its

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progeny state the general rule that wrongful discharge claims are unavailable when
premised on a statute that provides a remedy, Brooke states that wrongful discharge
claims premised on the CADA are an exception to the general rule. See 906 P.2d at
70.
Riverstone contends that reliance on Brooke is misplaced because the decision
did not address the tort of wrongful discharge. I reject this contention. The first holding
of Brooke—that the CADA does not provide the exclusive remedy for employmentrelated discrimination—plainly states that other remedies, and thus presumably
wrongful discharge claims, are available. See 906 P.2d at 70 n.4; see also 1B West’s
Colorado Practice Series § 19:18 (2011) (“Statutes providing a wrongful discharge
remedy for proscribed conduct may preempt common law claims based on the same
facts but only if the legislature clearly expressed its intent to do so[,]” citing Brooke); 7
West’s Colorado Practice Series § 26:16 (“The [CADA] does not, however, provide an
exclusive remedy for gender discrimination claims, and . . . any common-law claim may
be filed in the district court at any time during the [administrative] process[,]” citing
Brooke). Moreover, the reasoning of Brooke applies equally well to the issue of whether
the CADA precludes wrongful discharge claims, particularly because the CADA does
not allow a plaintiff to recover damages. See 906 P.2d at 68-70 (citing C.R.S. § 24-34405).
Riverstone also contends that the 2007 decision of Crow v. Penrose-St. Francis
Healthcare System, 169 P.3d 158, 168 (Colo. 2007), indicates that Brooke would have
been decided differently had a CADA-based wrongful discharge claim been at issue. I
disagree. The Crow decision is inapposite because it dealt with ripeness and examined

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the second holding of Brooke—that the CADA requires exhaustion of administrative
remedies only before filing claims pursuant to the Act—not the first holding, which is
relevant to this case. See id. Accordingly, I find no reason to conclude that Crow in
some way limited the first holding of Brooke.
Riverstone also directs my attention to Endahl v. Vinnell Corp., No. 04-CV00426-MSK-PAC, 2006 WL 57496, at *10 (D. Colo. Jan. 10, 2006), where Judge
Krieger found that the tort of wrongful discharge is barred when premised on the CADA
because the Act establishes a remedy for such prohibited discrimination. This finding
was based on the Gamble line of cases. Id. However, Endahl did not address Brooke
at all, and I have previously found that “the Brooke case’s holding is directly contrary to
Gamble[.]” Bronikowski, No. 01-D-0457 at 4. My prior reliance and interpretation of
Brooke in Bronikowski applies with equal force today.
Riverstone further argues that the rationale underlying the tort of wrongful
discharge is incompatible with the assertion of CADA rights under the guise of wrongful
discharge. The Caspar court noted that “the concept of a wrongful discharge evolved
as an exception to the at-will employment doctrine and is designed to provide a remedy
for unlawful adverse employment actions where no cause of action for breach of
contract would lie.” 280 F. Supp. 2d at 1249. Riverstone thus contends that because
the CADA contains remedy provisions, the tort of wrongful discharge no longer serves
any purpose. Yet this contention does not address Brooke’s findings regarding the
CADA. The Brooke court found no legislative intent to abrogate common law causes of
action, and the court pointed to the incompleteness of remedies (such as the
unavailability of damages) under the CADA. 906 P.2d at 68-70. Thus I find that the

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purpose of wrongful discharge claims as described in Caspar is not eliminated when a
wrongful discharge claim is premised on the CADA.
Finally, Riverstone argues that recognizing a claim of wrongful discharge
premised on the CADA will encourage an end-run around the limitations within the
CADA, such as the statute of limitations. I find this argument inconsistent with the
reasoning and first holding of Brooke. See id. Therefore, I conclude that Brooke is
dispositive on this issue, and therefore Mr. Kennedy’s wrongful discharge claim is not
barred to the extent it is premised on the CADA.
2. The ADA
I agree with Riverstone that Mr. Kennedy’s wrongful discharge claim is barred to
the extent it is premised on the ADA. Mr. Kennedy did not address this issue in his
Response so I conclude that Mr. Kennedy confesses Riverstone’s argument regarding
the ADA. In addition, a review of the issue reveals that Riverstone’s argument has
merit. Unlike with the CADA where the Colorado Supreme Court has ruled that nonCADA remedies are available for discrimination claims, I know of no comparable
authority regarding non-ADA remedies. Moreover, the comprehensiveness of the ADA
stands in contrast to that of the CADA. An enumerated purpose of the ADA is to
“provide a clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities[.]” 42 U.S.C. § 12101(b)(1).
Remedies available under the ADA include the recovery of compensatory and punitive
damages, 42 U.S.C. § 1981a(a)(2), as well as recovery of back pay for up to two years
preceding the filing of a charge. 42 U.S.C. § 2000e-5(e)(3)(B). Accordingly, because
the ADA has statutory remedies for wrongful discharge and because I know of no

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authority comparable to Brooke, Kennedy’s wrongful discharge claim is barred to the
extent it is premised on the ADA. See Gamble, 759 P.2d at 766.
B. Whether Dismissal is Appropriate as to Kennedy’s Fourth Claim for
Violation of ERISA
Riverstone contends that Kennedy’s ERISA 510 claim is barred by the sixthmonth statute of limitations set forth in Colo. Rev. Stat. § 24-34-403. Riverstone argues
that the Tenth Circuit’s decision in Held v. Manufacturers Hanover Leasing Corp., 912
F.2d 1197, 1204-05 (10th Cir. 1990), mandates that I apply the state law limitations
period applicable to Colorado employment discrimination claims, and Riverstone
asserts that § 24-34-403 is the only limitations period applicable to such claims.
Held is the leading case on determining which limitations period applies to ERISA
510 actions. In Held, the Tenth Circuit began its analysis by noting the general rule that
where a federal statute does not state a limitations period, statutes of limitations are to
be borrowed from state law. 912 F.2d at 1200. Finding that section 510 of ERISA gave
rise to the possibility of declaratory and injunctive relief under 29 U.S.C. § 1132, the
court concluded that “the most analogous claim for relief under New York law is a claim
for employment discrimination[.]”3 Id. at 1205 (quotations and citation omitted).
Assuming that Held mandates that I use a statute of limitations applicable to
employment discrimination, I disagree that Colo. Rev. Stat. § 24-34-403 provides the

3

Before reaching this conclusion, the Held court found that appellant had two distinct causes of
action: an action for violation of § 510 seeking declaratory and injunctive relief, and “a civil action to
‘recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan,
or to clarify his rights to future benefits under the terms of the plan.’” Id. at 1203 (quoting 29 U.S.C. §
1132(a)(1)(B)). The court held that this second cause of action is most analogous to a state-law action
upon a contract, and therefore applied a different statute of limitations to the second cause of action. Id.
at 1207. Because I conclude that Kennedy’s ERISA 510 action is not barred by a limitations period, I find
it unnecessary to parse his First Amended Complaint to determine whether he has asserted a cause of
action under 29 U.S.C. § 1132(a)(1)(B).
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limitations period applicable to all employment discrimination claims in Colorado.
Section 24-34-403 states, “Any charge alleging a violation of this part 4 [the CADA] shall
be filed with the commission . . . within six months after the alleged discriminatory or
unfair employment practice occurred, and if not so filed, it shall be barred.” Colo. Rev.
Stat. § 24-34-403 (2008). By its very terms, section 24-34-403 applies only to
administrative actions filed with the Colorado Civil Rights Commission (“CCRC”), and
the Colorado Supreme Court has made clear that the CADA is not the exclusive remedy
for employment-related discrimination. Brooke, 906 P.2d at 67. Accordingly, the statute
of limitations for filing non-administrative employment discrimination claims is not
governed by § 24-34-403. See id. Such claims would instead fall under the two-year
limitations period found in Colo. Rev. Stat. § 13-80-102, which covers tort actions as
well as “[a]ll other actions of every kind for which no other period of limitation is
provided[.]” See Colo. Rev. Stat. § 13-80-102(1)(a), (i) (2005). For example, the
Colorado Court of Appeals overruled a trial court decision applying the six-month
limitations period from § 24-34-403 to a claim brought court pursuant to § 24-34-402.5
of the CADA.4 Galvan v. Spanish Peaks Reg’l Health Ctr., 98 P.3d 949, 950-51 (Colo.
App. 2004). The Galvan court concluded that “the six-month limitation period set forth
in § 24-34-403 applies only to claims filed with the [CCRC],” and therefore the court held
that the claim at issue “is governed by the two-year statute of limitations set forth in
§ 13-80-102[.]” Id. at 951. Thus, like in Galvan, I find that the two-year limitations
period established in § 13-80-102 would apply to a Colorado employment discrimination
claim that is not brought to the CCRC.

4

Unlike the majority of claims brought under the CADA, a § 24-34-402.5 claim can be pursued
only by filing a suit for damages in Colorado state district court. Colo. Rev. Stat. § 24-34-402.5(2)(a).
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Further, I find Murphy v. American Home Products Corp., 448 N.E.2d 86 (N.Y.
1983), instructive in determining the proper limitations period for employment
discrimination claims in Colorado. Murphy was the only case the Held court cited when
it concluded that under New York Law employment discrimination is the most analogous
claim to ERISA 510 actions. Held, 912 F.2d at 1205. In Murphy, the trial court had
looked to New York’s Human Rights Law—which is similar to the CADA, see N.Y. Exec.
§ 290-301—for a limitations period to apply to an employment discrimination claim filed
in state court, thus choosing the one-year statute of limitations applicable to complaints
filed with New York’s Division of Human Rights. 448 N.E.2d at 92. Overturning the
lower court, the Court of Appeals found that “there are persuasive reasons why
provision should be made for different periods of time within which claims for unlawful
discrimination may be made—one for administrative relief, the other for judicial remedy.”
Id. Noting the radical difference of perspective between administrative intervention and
judicial adjudication, the court ruled that employment discrimination claims filed in court
are “governed by the three-year period of limitations… applicable to ‘an action to
recover upon a liability, penalty or forfeiture created or imposed by statute[.]’” Id. at 93
(quoting N.Y. C.P.L.R. 214 (McKinney 2003)). 5 Accordingly, as in Murphy, I find that
the administrative limitations period found in the CADA does not apply to employment
discrimination claims that are not brought before the CCRC.
Additionally, the Tenth Circuit has indicated that claims for wrongful discharge
are the most appropriate analogue to ERISA 510 actions. See Myers v. Colgate
5

N.Y. Exec. § 297(9) (“Any person claiming to be aggrieved by an unlawful discriminatory
practice shall have a cause of action in any court of appropriate jurisdiction for damages”). That New
York’s Human Rights Law expressly allows aggrieved parties to sue for damages in court and the CADA
generally does not5 is immaterial to my analysis, for the CADA is not the exclusive remedy for
discrimination claims in Colorado. See Brooke, 906 P.2d at 70.
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Palmolive Co., 26 F. App’x 855, 864 (10th Cir. 2002) (holding that under Kansas law a
wrongful discharge claim is the most appropriate analogue to ERISA 510 claims and
applying a two-year limitations period); Woods v. Halliburton Co., 49 F. App’x 827, 829
(10th Cir. 2002) (finding that retaliatory discharge, as a variant of employment
discrimination, could serve as an analogue to ERISA 510 claims). Many other courts
agree that wrongful discharge claims are most analogous to ERISA 510 actions. See,
e.g., Hinton v. Pac. Enters., 5 F.3d 391, 394 (9th Cir. 1993) (applying California’s statute
of limitations for wrongful termination); Byrd v. MacPapers, Inc., 961 F.2d 157, 159
(11th Cir. 1992) (finding that action for discharge in retaliation for filing workers’
compensation claim is best analogue); Teumer v. Gen. Motors Corp., 34 F.3d 542, 54950 (7th Cir. 1994) (applying statute of limitations for retaliatory discharge actions);
Myers v. Colgate Palmolive Co., 102 F. Supp. 2d 1208, 1225 (D. Kan. 2000) (finding
wrongful discharge to be the most appropriate analogue in Kansas law).
In light of these cases, I find wrongful discharge to be the most appropriate
analogue to ERISA 510 claims. See Myers, 26 F. App’x at 864; Woods, 49 F. App’x at
829; see also Hinton, 5 F.3d at 394. Wrongful discharge in Colorado is characterized
as a tort. See Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 115 (Colo. 1992)
(applying statute of limitations for tort claims to wrongful discharge claim); see also
Woods, 29 F. App’x at 829 (noting that retaliatory discharge is characterized as a civil
tort under Oklahoma law). As a tort, these claims are subject to the two-year limitations
period found in Colo. Rev. Stat. § 13-80-102(1)(a). Therefore, a two-year limitations
period is appropriate for Mr. Kennedy’s ERISA 510 claim.

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Mr. Kennedy was terminated on February 10, 2010, and he raised his ERISA 510
claim on February 14, 2011, well within the two-year period set forth in Colo. Rev. Stat.
§ 13-80-102. Accordingly, I find that Riverstone’s Motion should be denied as to
Kennedy’s ERISA 510 claim.
IV.

CONCLUSION
Based on the foregoing, it is
ORDERED that Defendant’s Partial Rule 12(b)(6) Motion to Dismiss the Second

and Fourth Causes of Action in Plaintiff’s Amended Complaint is GRANTED IN PART
AND DENIED IN PART. It is GRANTED to the extent that Plaintiff’s Second Cause of
Action (wrongful termination in violation of public policy) is premised on the ADA, and it
is DENIED as to all other claims.
Dated: February 1, 2012
BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE

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