Scavetta v. King Soopers, Inc. et al

Filing 66

ORDER granting in part and denying in part 45 Defendants' Motion for Summary Judgment. Defendants Motion for Summary Judgment as to Plaintiffs claim for Disparate Treatment and Unlawful Termination under the ADA ("Claim 1") is DENIE D; Defendants Motion for Summary Judgement as to Plaintiffs claim for Reasonable Accommodation under the ADA ("Claim 2") is DENIED; Defendants Motion for Summary Judgement as to Plaintiffs claim for the Retaliation for under the ADA (&quo t;Claim 3") is DENIED; Defendants Motion for Summary Judgement as to Plaintiffs claim for Age Discrimination under the ADEA ("Claim 4") is GRANTED; Defendants Motion for Summary Judgement as to Plaintiffs claim for Wrongful Terminati on in Violation of Public Policy ("Claim 5") is DENIED; and Defendants Motion for Summary Judgement as to Plaintiffs claim for Outrageous Conduct pursuant to Colorado Common Law ("Claim 6") is GRANTED, by Judge William J. Martinez on 1/28/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-02986-WJM-KLM
KAREN SCAVETTA,
Plaintiff,
v.
KING SOOPERS, INC.,
THE KROGER CO., and
DILLON COMPANIES, INC.,
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Plaintiff Karen Scavetta (“Plaintiff”) brings claims for unlawful termination against
her former employer, King Soopers Inc. et al. (“Defendants”). Before the Court is
Defendants’ Motion for Summary Judgment (“Motion”). (ECF No. 45.) Plaintiff has filed
a Response to this Motion (ECF No. 58) and Defendants have filed a Reply. (ECF No.
60). The Motion is ripe for adjudication.
For the reasons set forth below, the Motion is granted in part and denied in part.
I. STANDARD OF REVIEW
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient

disagreement to require submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
Service, 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is genuine if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. The
Court must resolve factual ambiguities against the moving party, thus favoring the right to
a trial. Quaker State Mini-Lube, Inc. v. Fireman’s Fund Ins. Co., 52 F.3d 1522, 1527
(10th Cir. 1995); Houston v. Nat’l General Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II. BACKGROUND
A.

Factual Background
Plaintiff worked at King Soopers for over thirty years. (ECF No. 58 at 3.) She

had worked as a pharmacist for King Soopers since 1994. (Id.) Plaintiff was a “floater
pharmacist” and worked in different stores to cover the shifts of other pharmacists. (Id.)
Jeff Meador was Plaintiff’s pharmacy supervisor (ECF No. 58-6 at 1).
Plaintiff alleges that she suffers from rheumatoid arthritis. (ECF No. 58 at 25.) It
causes pain, swelling and damage to the joints, impeding the movement and function of
joints. (Id.) Because of this condition, she contends that she could not administer flu
shots for her former employer, Defendant King Soopers. (ECF No. 41 ¶¶ 26-28; ECF
No. 58 at 25.) Plaintiff claims that she had a medical certificate from her specialist
directing her not to administer flu shots due to her medical condition. (ECF No. 58 at 2526; ECF No. 58-6 at 1.) This was communicated to Mr Meador and Ms Stephanie
2

Bouknight (Director of Labor Relations). (ECF No. 58-6 at 1.) Despite such notice,
Plaintiff contends that Defendants terminated her employment because of what she
contends is a disability, and also pursuant to a systematic plan to replace older
pharmacists with younger pharmacists.1 Plaintiff seeks damages for both economic and
non-economic losses, including an award of punitive damages and attorney’s fees.
B.

Procedural Background
Plaintiff filed this action against Defendants on December 9, 2010. (ECF No. 1.)

An Amended Complaint was filed on January 5, 2012. (ECF No. 41). In the Amended
Complaint, Plaintiff claims are based upon the Americans with Disabilities Act (“ADA”),
the Age Discrimination in Employment Act (“ADEA”), and Colorado common law.
Defendants now move for summary judgment as to each of Plaintiff’s claims.
III. ANALYSIS
Plaintiff specifically brings the following claims for relief: (1) Disparate Treatment
and Unlawful Termination under the ADA (“Claim1”); (2) Denial of Reasonable
Accommodation under the ADA (“Claim 2”); (3) Retaliation for Engaging in Protected
Activity under the ADA (“Claim 3”); (4) Age Discrimination under the ADEA (“Claim 4”);
(5) Wrongful Termination in Violation of Public Policy (“Claim 5”) and; (6) Outrageous
Conduct pursuant to Colorado Common Law (“Claim 6”).
With respect to claims (1) through (4), the familiar McDonnell-Douglas burdenshifting test applies. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see
also Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). Under

1

Plaintiff was forty-eight years of age at the time she was terminated from employment.
(ECF No. 61 at 2.)

3

McDonnell-Douglas, Plaintiff must first establish a prima facie case of discrimination
based on Plaintiff’s disability or age. Garrett, 305 F.3d at 1216. If the plaintiff makes
out a prima facie case, the burden shifts to the defendant to come forward with a
legitimate, non-discriminatory basis for its employment decision. Id. If the defendant
does so, the inference of discrimination drops out and the burden shifts back to the
plaintiff and he must offer evidence to show that disability or age, inter alia, was a
determinative factor in the employment decision, or that the defendant’s
non-discriminatory reason was pretextual. Id.
A.

Disparate Treatment and Unlawful Termination (Claim 1 - ADA)2
To satisfy the McDonnell-Douglas analysis, Plaintiff must first establish a prima

facie case of discrimination. To do so, three elements must be met: (1) the plaintiff is a
disabled person as defined by the ADA; (2) the plaintiff is qualified, with or without
reasonable accommodation, to perform the essential functions of the job held; and (3)
the plaintiff suffered discrimination by an employer or prospective employer because of
the disability. MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10th
Cir.2005).
As to element (1), Plaintiff has proffered sufficient facts to establish that she had
a disability within the meaning of the ADA. Pursuant to 42 U.S.C. 12102(1), the term
disability means “a physical or mental impairment that substantially limits one or more

2

Plaintiff argues that there is direct evidence to support her claim. Price Waterhouse v.
Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d (1989) (holding that “the McDonnellDouglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”)
However, given that it is a close call whether there is sufficient ‘direct evidence’ in the record,
the Court will undertake the analysis of Claim I under the McDonnell-Douglas framework. The
Court notes that this does not preclude Plaintiff from making the same argument later should
this matter proceed to trial.

4

major life activities.” Moreover, 29 C.F.R. § 1630.2(j)(1)(I) provides that the term
‘substantially limits' shall be "construed broadly in favor of expansive coverage.”
In Plaintiff’s case, rheumatoid arthritis is a recognized impairment under the ADA.
It causes pain, swelling, stiffness, and damage to the joints. It attacks the
muscular-skeletal system, impeding the movement and function of joints. (ECF No. 58
at 25.) There is also evidence in the record, that rheumatoid arthritis severely restricted
Plaintiff’s life activities. Plaintiff can no longer golf, ride her bike, garden and play
tennis. (Id.) See also 29 C.F.R. § 1630.2(i)(2) (“rheumatoid arthritis affects
musculoskeletal functions.”) In addition to these facts, and relevant to Plaintiff’s
termination on October 6, 2009, her medical specialist stated in a medical certificate
that Plaintiff must “not give flu or other injections” due to joint pain, swelling and
inflammation caused by her disability. (ECF No. 58-6 at 4.) On this record, Plaintiff is
disabled under the ADA for the purposes of summary judgment.
As to element (2), the Court similarly finds for Plaintiff because there is evidence
to show that she was qualified to perform essential functions required of her position.
Specifically, Plaintiff worked at King Soopers for over thirty years, and as a pharmacist
for nearly fifteen years. (ECF No. 58 at 26.) She obtained strong performance reviews.
This demonstrates that she could perform the essential functions of the pharmacist
position. (Id.)
To counter, Defendants assert that providing flu injection services was an
essential part of the job description. And because Plaintiff could not perform this
function, she was not qualified as a King Soopers’ pharmacist. Defendants rely heavily
on Hennagir v. Utah Dept. of Corr., 587 F.3d 1255, 1262 (10th Cir. 2009). There, the
5

Tenth Circuit explained that: “[p]rovided a job specification is job-related, uniformly
enforced, and consistent with business necessity, the employer has a right to establish
what a job is and what is required to perform it.” (emphasis added.) The Court finds
Defendants’ reliance on Hennagir misplaced. The reasons are two-fold.
First, the Hennagir decision is qualified. That case provides that an employer
only has a right to establish what a job is, if the job specification is uniformly enforced.
Defendants fail to appreciate the relevant triggers which give rise to the employer’s right
to determine essential functions of a position. Here, it is hotly disputed whether the
rendering of immunizations was an essential function of Plaintiff’s job. Indeed, at least
ten other similarly-situated pharmacists who had medical restrictions were exempted
from giving immunizations. (ECF No. 58-15.) See, e.g., Bates v. United Parcel Service,
Inc., 511 F.3d 974, 991 (9th Cir. 2007) (en banc). Second, evidence exists that
Defendants were aware of Plaintiff’s disability for some time before her termination (i.e.,
as far back as September 2008). During this time, Defendants did not require Plaintiff
to undertake patient immunizations. This raises the issue: if immunizations were so
essential to Plaintiff’s job specification, why didn’t Defendants enforce this requirement
before October 2009?
In light of the above, the Court finds that genuine disputes as to material facts
clearly exist and Defendants cannot prevail on its Motion with regard to element (2).
Anderson, 477 U.S. at 248.
As to element (3) of the prima facie case—i.e., whether Plaintiff was fired
because of her disability—the Court views the record on this element in a similar
fashion. The Court has little difficulty in finding that the e-mail correspondence, in the
6

week leading up to Plaintiff’s termination, broadly supports her position on her ADA
disparate treatment claim. In particular, there is an e-mail sent from Stephanie
Bouknight (Director of Labor Relations) to Jeff Meador (Pharmacy Supervisor) dated
September 28, 2009. Ms Bouknight’s e-mail states: “if she [Scavetta] really wants to
force the [arthritis] issue it won’t take long before we reach termination.” (ECF No. 58-6
at 1.) This e-mail, along with Plaintiff’s submission of her medical certificate notifying
Defendants of her disability on October 2, 2009, provide sufficient evidence that
Defendants were aware of Plaintiff’s disability. (Id. at 2-3.) Given that Defendants were
armed with knowledge of Plaintiff’s disability, and that Plaintiff was fired on October 6,
2009, little more is required to show that this element of Scavetta’s prima facie ADA
disparate treatment claim is manifestly appropriate for jury determination, and cannot be
resolved summarily on the papers. Because all three elements of the prima facie claim
are met, Plaintiff has satisfied her burden as to the first step in the McDonnell-Douglas
analysis.
Turning to the second step, Defendants argue that termination of Plaintiff’s
employment was primarily for insubordination. Because insubordination is a legitimate,
nondiscriminatory reason for termination, the Court finds that Defendants have carried
its burden in showing a nondiscriminatory reason for its decision to terminate Plaintiff.
Texas Dep’t. of Cmty Affairs v. Burdine, 450 U.S. 248, 254 (1981); Rivera v. City &
County of Denver, 365 F.3d 912, 920 (10th Cir. 2004).
As to the third step, to establish a genuine issue of material fact regarding
pretext, a plaintiff must produce evidence that would allow a reasonable juror to find that
the defendant's non-discriminatory reason is, among other things, “unworthy of belief.”
7

Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). A plaintiff can meet this
burden with “evidence of such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of credence.”
Argo v. Blue Cross and Blue Shield of Kan., Inc., 452 F.3d 1193, 1203 (10th Cir. 2006).
To make this determination, a court must consider the plaintiff’s evidence in its totality.
Orr v. City of Albuquerque, 531 F.3d 1210, 1215 (10th Cir. 2008).
Here, there is evidence upon which a jury could find that Defendants terminated
Plaintiff because of her medical disability. Much of this evidence overlaps with what has
been discussed above. But again, the e-mail correspondence between Ms. Bouknight
and Mr. Meador (referencing Scavetta’s termination before the date of termination) is
critical. (ECF No. 58-6.) Equally important is evidence dating back as far as September
2008 that gives rise to the fact that Defendants were aware of Plaintiff’s disability as of
that date. Given the timing of Ms Bouknight’s referenced e-mail, and Plaintiff’s
subsequent termination only a week later, there exist some circumstantial evidence of
pretext that can only be evaluated and resolved by a jury. Randle, 69 F.3d at 451. As
such, Plaintiff has satisfied the third step of the McDonnell-Douglas analysis.
Accordingly, there is sufficient evidence in the record that make Plaintiff’s ADA
disparate treatment claim trial worthy for jury determination. Harper v. Mancos Sch.
Dist. RE–6, 837 F.Supp.2d 1211, 1223–24 (D.Colo. 2011). The Court, therefore, denies
Defendants Motion for Summary Judgment with respect to Claim 1.

8

B.

Denial of Reasonable Accommodation (Claim 2 - ADA)
Plaintiff further argues that Defendants failed to accommodate her disability and

that there is sufficient evidence in the record to deny summary judgment as to this claim
as well. In this regard, Plaintiff must first demonstrate that an accommodation appears
reasonable on its face. White v. York Int'l Corp., 45 F.3d 357, 361 (10th Cir. 1995).
The burden of production then shifts to Defendant King Soopers to present evidence of
its inability to accommodate. Id. If the Defendant presents such evidence, Plaintiff then
has the burden of coming forward with evidence concerning her possible
accommodations to rebut such evidence. Id.
Here, evidence in the record demonstrates that an accommodation of Plaintiff’s
disability is reasonable on its face. The extent of that disability has been addressed at
length above in Claim 1. These facts provide ample predicate to show that Defendants
could have taken some ‘reasonable’ steps to accommodate Plaintiff’s disability. This
could have included allowing Plaintiff to decline giving immunizations, among other
things. Moreover, if Defendants knew during October 2009 that there was a heightened
need for flu injections, it begs the question why Defendants did not have another
(healthy) pharmacist help Plaintiff on the day she was suspended. Accordingly, the
Court finds that steps to accommodate Plaintiff’s disability were available to Defendants
and were reasonable on their face. This allows Plaintiff to satisfy her initial burden.
Under McDonnell-Douglas, the burden then shifts to Defendants to present
evidence of its inability to accommodate Plaintiff. Defendants argue that they “simply
did not have time to evaluate [Plaintiff’s] medical information” so to accommodate her
disability. (ECF No. 45 at 27.) This is a close call, but the Court concludes this is a
9

marginally sufficient rationale by Defendants to cause the burden to shift back to
Plaintiff to come forward with evidence to rebut Defendants’ position.
To that end, Plaintiff points to several facts in rebuttal. First, Mr. Meador’s e-mail
to Ms. Bouknight on September 28, 2009 states that Plaintiff Scavetta had raised the
issue of her disability with Meador on the same date. (ECF No. 58-6.) A medical
certificate was submitted on Friday, October 2, 2009. Viewing the facts most favorable
to Plaintiff, there is also evidence that Defendants knew of the disability in September
2008. Despite such awareness, there is nothing in the record to show that Defendants
formally accommodated Plaintiff, or even that it attempted to do so.
Second, the meeting between Steve Anger (store manager) and Plaintiff on
October 6, 2009 is telling against Defendants. At that meeting, when Plaintiff attempted
to explain her medical restrictions and the reasons why she was unable to give
immunizations, Mr. Anger simply replied that he did not want to get into “semantics.”
(ECF No. 58-1 at 150; ECF No. 58-21.) Mr. Anger then terminated Plaintiff’s
employment. These facts could support inferences to be drawn by a jury that
Defendants were not prepared to do anything to accommodate Plaintiff’s disability. Any
argument that Defendants did not have enough time to accommodate Plaintiff—or even
to take good faith steps to do so—is clearly rebutted by this evidence.
Accordingly, Plaintiff has provided evidence that would allow a reasonable juror
to conclude that genuine issues of material facts exist with regard to whether
Defendants failed to reasonably accommodate Plaintiff’s disability. Defendants’ Motion
for Summary Judgment is accordingly denied as to Claim 2.

10

C.

Retaliation for Engaging in Protected Activity (Claim 3 - ADA)
In order to establish a prima facie case of retaliation, a plaintiff must show: “(1)

that he engaged in protected opposition to discrimination, (2) that a reasonable
employee would have found the challenged action materially adverse, and (3) that a
causal connection existed between the protected activity and the materially adverse
action.” Proctor v. United Parcel Service, 502 F.3d 1200, 1208 (10th Cir. 2007). Here,
Defendants correctly concede the first two elements of the prima facie case—i.e,.
seeking an accommodation under the ADA is protected activity. And termination is
“materially adverse.” (ECF No. 45 at 29.) Accordingly the Court need only consider
whether a reasonable jury could find a causal connection between Plaintiff’s protected
activity under the ADA and her ultimate termination.
A jury may establish a causal connection between protected activity and an
adverse employment action by inference. Evidence of circumstances that justify an
inference arise where protected activity is “closely followed by adverse action” which is
indicia of a retaliatory motive. Proctor, 502 F.3d at 1208. “The date of Plaintiff's
termination is key to this inquiry because the closer it occurred to the protected activity,
the more likely it will support a showing of causation.” Anderson v. Coors Brewing Co.,
181 F.3d 1171, 1179 (10th Cir.1999) (stating that “a one and one-half month period
between protected activity and adverse action may, by itself, establish causation.”)
Here, Plaintiff had engaged in protected activity seeking an accommodation
under the ADA—i.e., Plaintiff provided a formal medical certificate to Defendants just
four days before her termination. This is much less than a month and a half involved in
the Anderson case. The extremely close temporal proximity alone is sufficient to allow a
11

reasonable jury to infer the termination was in retaliation for her request for
accommodation.
Despite this, Defendants argue that Plaintiff cannot prove causation because of
her insubordination—i.e., the purported failure to provide customers with flu shots was
an intervening cause that defeats Plaintiff’s claim. To support its position, Defendants
cite Lovato v. Presbyterian Healthcare Servs., 2007 U.S. Dist. LEXIS 76650, at *25-26
(D.N.M. June 14, 2007). Defendants state that this case goes to “pretext.” (ECF No. 45
at 29.) On closer review, it is clear that its holding goes to a prima facie case; a step in
the analysis well before Plaintiff must discharge her burden regarding pretext.3
Assuming, though, that Defendants rely on Lovato for the purposes of a prima
facie case, the Court notes: (1) Lovato is not binding authority in this district, and (2)
even if Lovato were followed, the existence of an intervening cause is a factual question
determined on a case-by-case basis—particularly in the employment context where the
causation analysis is tied to the knowledge and intent of the defendant. As addressed
above with respect to Claim 1, there are clear factual disputes regarding what

3

Defendants also cite Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1002-03 (10th
Cir. 2011) (stating that evidence of “temporal proximity has minimal value in a retaliation case
where intervening events between the employee's protected conduct and the challenged
employment action provide a legitimate basis for the employer's action”). But this case is cited
in Defendants’ Reply Brief, not its Opening Brief. (ECF No. 60 at 14.) The Court notes that
“issues not raised in the opening brief are deemed abandoned or waived.” Coleman v. B-G
Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir. 1997). Even if the Court were to
apply Twigg, Defendants cannot overcome the hurdle that causation in this case necessitates
jury determination as to what Defendants knew at the time of the termination because Plaintiff’s
reason for the purported insubordination was tied closely to her disability (which Defendants
had knowledge of)—i.e., she was purportedly insubordinate in not providing the immunizations
because of her medical disability. Thus, any argument based on intervening cause will require
the jury to assess what was known by Defendants, and more importantly when it was known
before suspension and subsequent terminations. Given the conflicting facts as to these issues,
the matter cannot be disposed of as a matter of law.

12

Defendants did know (and when). These disputed facts preclude the grant of summary
with respect Claim 1. Those same disputed facts are relevant to Claim 3. Because
such facts are disputed, it follows that Plaintiff has satisfied her burden on the prima
facie case as to Claim 3 since Defendants cannot prevail as a matter of law. Anderson,
477 U.S. at 248-49 (stating that a dispute as to a material fact depends on whether
there is sufficient disagreement between the parties factual narratives to require
submission to a jury).
As to the second and third steps of McDonnell-Douglas, each of the parties did
not meaningfully dispute these steps in the analysis. Even if they were disputed, the
Court finds that these steps would follow a similar pattern to Claims 1 and 2,
above—particularly where there has been disputed material facts between the parties.4
Accordingly, Defendants’ Motion for Summary Judgment regarding Claim 3 is also
denied.
D.

Violation of the Age Discrimination in Employment Act (Claim 4 - ADEA)
The Court finds that summary judgment is warranted as to Plaintiff’s Age

Discrimination Claim. To make out a prima facie case, Plaintiff must prove (1) she is a
member of the class protected by the ADEA; (2) she was doing satisfactory work; (3)
she was discharged; and (4) her position was not filled or was filled by a younger
person. Rivera, 365 F.3d at 920-21.
Here, and while Plaintiff could meet elements (1)-(3), she fails on element (4).
Plaintiff identifies several pharmacists whom she also believes were terminated
4

"[W]e are not charged with making the parties' arguments for them." Meyer v. Bd. of
County Comm'rs, 482 F.3d 1232, 1242 (10th Cir. 2007). This passage would apply ever more
so to Defendants being the moving party in this case.

13

because of age, but she has no personal knowledge of the circumstances surrounding
their departures. (ECF No. 45-2 Ex. B at 165-168.) Nor is anything specific as to when
the other employees (who were reportedly aged 40 or older) were terminated from the
employ of King Soopers, what store they were discharged from, whether they reported
to one or more of the same supervisors, among other things. Clearly, more is needed
to discharge her burden as to the prima facie case. See Mitchell v. City of Moore,
Oklahoma, 218 F.3d 1190, 1199 (10th Cir. 2000) (holding that the responding party
must ensure that the factual dispute is portrayed with “particularity”). Perhaps most fatal
to this claim is the lack of any evidence in regards to how pharmacists under the age of
40 were treated in similar circumstances.
In sum, Plaintiff’s ADEA Claim is quite distinct from the claims for unlawful
termination based on disability. The Court finds that much of Plaintiff’s factual and legal
arguments are conclusory and without much or indeed any evidentiary support in the
record. Accordingly, Defendants’ Motion for Summary Judgment on Plaintiff’s age
discrimination claim is granted. See Mitchell, 218 F.3d at 1199.
E.

Wrongful Termination in Violation of Public Policy (Claim 5 - Colorado
Common Law)
Plaintiff’s next claim asserts the common law tort of wrongful termination. While

Plaintiff need not prove her claim at this juncture, the following elements for a wrongful
discharge claim are pertinent because they provide the framework for the summary
judgment analysis.5

5

Plaintiff need only set forth specific facts that would be admissible in evidence in the
event of trial from which a”rational trier of fact could find for the nonmovant.” Bausman v.
Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001).

14

Relevantly, the elements for a wrongful discharge claim, are: (1) the employer
directed the employee to perform an illegal act as part of the employee's work related
duties; (2) the action directed by the employer would violate a specific statute relating to
the public health, safety, or welfare, or would undermine a clearly expressed public
policy; (3) the employee was terminated as the result of refusing to perform the act
directed by the employer; and (4) the employer was aware, or reasonably should have
been aware, that the employee's refusal to comply with the employer's order or directive
was based on the employee's reasonable belief that the action ordered by the employer
was illegal, contrary to clearly expressed statutory policy relating to the employee's duty
as a citizen, or violative of the employee's legal right or privilege as a worker. Bonidy v.
VVCAD, 186 P. 3d 80, (Colo. Ct. App. 2008).
Here, the Court finds that Plaintiff has provided enough admissible
facts—beyond mere conclusory assertions—to support the relevant elements of the
claim. Much of Plaintiff’s argument is based upon the fact that the State Pharmacy
Board passed Colorado Regulation 19.01.10(b)(2) (3 CCR 719-1). That regulation
provides that a pharmacist can only give immunizations if the “pharmacist or pharmacy
intern holds a current basic cardiopulmonary resuscitation (CPR) certification issued by
the American Heart Association or the American Red Cross or a basic cardiac life
support certification.” Pharmacists that are licensed in Colorado must follow state
statutes. See Colorado Pharmacy Regulation 1.00.11 (“A pharmacist shall at all times
conduct his/her profession in conformity with all federal and state drug laws, rules and
regulations; and shall uphold the legal standards of the current official compendia”)
The record indicates that Plaintiff was a licensed pharmacist and had not
15

renewed her CPR certificate. (ECF No. 56 at 35-36.) On October 2, 2009, Defendants
directed Plaintiff to render immunizations even though they were fully aware that she did
not have a current CPR card. Because regulation 1.00.11 is binding on Plaintiff, there is
evidence in the record that Defendants’ directive violated Colorado state pharmacy laws
and regulations which mandate that a pharmacist have a current CPR card in order to
give immunizations. Such facts provide more than enough to satisfy elements (1)-(4)
for the purposes of summary judgment.
Accordingly, the Court finds that Plaintiff has shown a trial-worthy issue
as to Claim 5 regarding violation of public policy and Defendants’ Motion for Summary
Judgment is denied as to this claim.6
F.

Outrageous Conduct Claim (Claim 6 - Colorado Common Law).
The Court finds that summary judgment with respect to the Outrageous Conduct

Claim is warranted as a matter of law. The elements of an outrageous conduct claim
are: “(1) the defendant engaged in extreme and outrageous conduct, (2) recklessly or
with the intent of causing the plaintiff severe emotional distress, and (3) causing the
plaintiff severe emotional distress.” Green v. QWest Services Corp., 155 P.3d 383, 385
(Colo. App. 2006). Liability for outrageous conduct lies only when the plaintiff can prove
conduct “so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community.” Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999).
Here, Plaintiff alleges that Ms Bouknight’s e-mail to Mr. Meador—that Plaintiff
6

While Defendants do not raise the argument at summary judgment stage, the Court
notes that Plaintiff’s Colorado common law claims are not precluded by the federal statutes
referenced in Claims 1-3. Brooke v. Restaurant Services, Inc., 906 P.2d 66, 68 (Colo.1995).

16

would be terminated if she “forced” the issue of her medical restrictions—provides the
predicate for Plaintiff’s Outrageous Conduct claim. While there is much merit in such
evidence as applied to Claim 1, this e-mail and the following events alone do not rise to
the level that is required to satisfy the relevant elements in Claim 6. The relevant case
law has erected a very high bar for plaintiffs to clear in order to get such a claim before
a jury. While Defendants’ conduct–if found by the jury in conformity with the allegations
asserted by Plaintiff in this action–may be actionable employment discrimination, it does
rise to the level which permits a jury to find that it is “utterly intolerable in a civilized
community.” Coors Brewing Co. 978 P.2d at 666. The case law is also clear in that an
outrageous conduct claim under Colorado law requires ascertainable misconduct, and is
not cognizable if the allegations, forming the basis of the claim, are the same as those
forming the basis of a discrimination claim. Visor v. Spring/United Mgmt. Co., 965 F.
Supp. 31, 33 (D. Colo. 1997). That is precisely what has occurred here.
For these reasons, element (1) of this claim is not met, and the Court finds that it
can be disposed of as a matter of law in the context of a Rule 56 motion. As to this
claim, therefore, Defendants’ Motion for Summary Judgment is granted.
IV. CONCLUSION
For the reasons set forth above, It is hereby ORDERED that:
1.

Defendants’ Motion for Summary Judgment (ECF No. 45) is GRANTED in
part and DENIED in part;

2.

Defendants’ Motion for Summary Judgment as to Plaintiff’s claim for
Disparate Treatment and Unlawful Termination under the ADA ("Claim 1")
is DENIED;
17

3.

Defendants’ Motion for Summary Judgement as to Plaintiff’s claim for
Reasonable Accommodation under the ADA ("Claim 2") is DENIED;

4.

Defendants’ Motion for Summary Judgement as to Plaintiff’s claim for the
Retaliation for under the ADA ("Claim 3") is DENIED;

5.

Defendants’ Motion for Summary Judgement as to Plaintiff’s claim for Age
Discrimination under the ADEA ("Claim 4") is GRANTED;

6.

Defendants’ Motion for Summary Judgement as to Plaintiff’s claim for
Wrongful Termination in Violation of Public Policy ("Claim 5") is DENIED;

7.

Defendants’ Motion for Summary Judgement as to Plaintiff’s claim for
Outrageous Conduct pursuant to Colorado Common Law ("Claim 6") is
GRANTED.
Dated this 28th day of January, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

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