Pina-Belmarez v. Board of County Commissioners of Weld County, Colorado, The et al

Filing 39

ORDER RE: MOTION FOR PARTIAL DISMISSAL OF CLAIMS granting 14 Motion for Leave to File Excess Pages and granting in part and denying in part 15 Motion for Partial Dismissal of Claims. The First, Second, Fifth, Seventh, Eleventh, and Thirteen th (mis-designated as Eleventh) are DISMISSED WITHOUT PREJUDICE. The Ninth Claim for Relief is DISMISSED WITHOUT PREJUDICE. The Sixth and Tenth Claims for Relief are DISMISSED WITH PREJUDICE. The Fourth Claim for Relief is DISMISSED WITH PREJUDI CE. Plaintiff's Third Claim for Relief are DISMISSED WITHOUT PREJUDICE. In all other respects, the motion is DENIED. Please see additional information as set forth in the attached order. By Judge Robert E. Blackburn on 7/19/12.(mjgsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-03179-REB-MJW
CORINNA PINA-BELMAREZ,
Plaintiff,
v.
THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY COLORADO,
THE OFFICE OF THE WELD COUNTY CORNER/MEDICAL EXAMINER,
PATRICK C. ALLEN, M.D., in his individual capacity,
MARK WARD, in his individual capacity, and
JAMES A. WILKERSON IV, M.D., in his individual capacity,
Defendants.

ORDER RE: MOTION FOR PARTIAL DISMISSAL OF CLAIMS
Blackburn, J.
The matters before me are defendants’ (1) Motion for Partial Dismissal of
Claims [#15]1 filed January 30, 2012; and (2) Motion for Leave To Exceed the Court’s
Page Limit [#14] filed January 30, 2012. I grant the motion to exceed the page
limitations, and grant in part and deny in part the motion to dismiss.
I. JURISDICTION
I have jurisdiction over this case pursuant to 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
When ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), I must
determine whether the allegations of the complaint are sufficient to state a claim within the
1

“[#15]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s electronic case filing and management system (CM/ECF). I use this convention
throughout this order.

meaning of Fed.R.Civ.P. 8(a). For many years, “courts followed the axiom that dismissal
is only appropriate where ‘it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.’” Kansas Penn Gaming,
LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Conley v. Gibson, 355
U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). Noting that this standard “has
been questioned, criticized, and explained away long enough,” the Supreme Court
supplanted it in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955,
1969, 167 L.Ed.2d 929 (2007). Pursuant to the dictates of Twombly, I now review the
complaint to determine whether it “‘contains enough facts to state a claim to relief that is
plausible on its face.’” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177
(10th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1974). “This pleading requirement serves
two purposes: to ensure that a defendant is placed on notice of his or her alleged
misconduct sufficient to prepare an appropriate defense, and to avoid ginning up the
costly machinery associated with our civil discovery regime on the basis of a largely
groundless claim.” Kansas Penn Gaming, 656 F.3d at 1215 (citation and internal
quotation marks omitted).
As previously, I must accept all well-pleaded factual allegations of the complaint as
true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002).
Contrastingly, mere “labels and conclusions or a formulaic recitation of the elements of a
cause of action” will not be sufficient to defeat a motion to dismiss. Ashcroft v. Iqbal,
556 U.S. 662, 678 , 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations and internal
quotation marks omitted). See also Robbins v. Oklahoma, 519 F.3d 1242, 1247-48

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(10th Cir. 2008) (“Without some factual allegation in the complaint, it is hard to see how a
claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the
claim, but also ‘grounds' on which the claim rests.”) (quoting Twombly, 127 S.Ct. at 1974)
(internal citations and footnote omitted). Moreover, to meet the plausibility standard, the
complaint must suggest “more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 129 S.Ct. at 1949. See also Ridge at Red Hawk, 493 F.3d at 1177
(“[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in
support of the pleaded claims is insufficient; the complaint must give the court reason to
believe that this plaintiff has a reasonable likelihood of mustering factual support for these
claims.") (emphases in original). For this reason, the complaint must allege facts
sufficient to “raise a right to relief above the speculative level.” Kansas Penn Gaming,
656 F.3d at 1214 (quoting Twombly, 127 S.Ct. at 1965). The standard will not be met
where the allegations of the complaint are “so general that they encompass a wide swath
of conduct, much of it innocent.” Robbins, 519 F.3d at 1248. Instead “[t]he allegations
must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively)
has a claim for relief.” Id.
The nature and specificity of the allegations required to state a plausible claim will
vary based on context and will “require[] the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 129 S.Ct. at 1950; see also Kansas Penn
Gaming, 656 F.3d at 1215. Nevertheless, the standard remains a liberal one, and “a
well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.“ Dias v. City

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and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Twombly, 127
S.Ct. at 1965) (internal quotation marks omitted).
III. ANALYSIS
Plaintiff formerly was employed as a “Medicolegal Investigator” (“MI”) with the Weld
County Coroner/Medical Examiner (“WCCO”). In that position, she was classified as a
non-exempt employee under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201219. On June 16, 2009, the Board of County Commissioners (“BOCC”) decided to pay off
accumulated comp time for all WCCO MIs, as a result of which, plaintiff received a payout
of $9,924.88.
WCCO subsequently implemented a policy restricting accumulated comp time to
no more than 80 hours total, after which any further time would be counted and paid out
as overtime. This agreement was memorialized in a contract, which plaintiff signed in
November 2009. Plaintiff complains that thereafter her supervisors limited her to no more
than 30 to 40 hours of accumulated comp time. Plaintiff alleges that she “voiced
concerns” regarding the application of the comp time agreement as well as regarding
compensation for her on-duty time to the BOCC, WCCO, and defendant Mark Ward, the
then Chief Deputy Weld County Coroner (now Coroner).
For reasons not apparent from the record, plaintiff took a leave of absence
pursuant to the Family and Medical Leave Act (“FMLA”) from June 24 to July 2, 2009.
She took a second such leave from May 3 to June 14, 2010. During this period, on June
4, 2010, the WCCO circulated an amended job description for the MI position that listed
as an essential job function the ability to lift, carry, or otherwise move 150 to 200 pounds.
Because plaintiff subsequently returned to work with a temporary lifting restriction of no

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more than 30 pounds, she was not assigned to full duty until her medical restrictions were
lifted the following month.
On August 6, 2010, plaintiff suffered a work-related injury and again was placed on
lifting restrictions, this time of no more than 25 pounds. Plaintiff alleges that she provided
the WCCO with a list of reasonable accommodations that would allow her to continue her
employment, but the WCCO refused her request and, instead, placed her on FMLA leave.
On September 17, 2010, after allegedly exhausting her FMLA leave, plaintiff was
terminated for inability to perform the essential functions of the MI job.
This lawsuit followed. The plaintiff alleges a plethora of claims, including those that are
the subject of this motion.2 I consider them seriatim.
Plaintiff’s First and Second Claims for Relief allege a violation of the FLSA’s
overtime pay and compensation time pay requirements, respectively. The FLSA requires
employers to compensate an employee for any hours worked in excess of 40 hours per
week “at a rate not less than one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1). The FLSA permits a state or political subdivision
thereof to offer its employees, “in lieu of overtime compensation, compensatory time off at
a rate not less than one and one-half hours for each hour of employment for which
overtime compensation is required by this section.” Id. § 207(o)(1). Pursuant to her
November 2009 comp time agreement, plaintiff accepted such an alternative
arrangement. Nothing in the complaint suggests that this contract was not valid and
enforceable. I thus conclude that plaintiff has no viable claim for overtime pay under the

2

Plaintiff concedes that her Fourth Claim for Relief, under the Colorado Wage Act, is not feasible,
and defendants’ motion to dismiss that claim thus will be granted.

5

FLSA. Accordingly, defendants’ motion to dismiss this claim will be granted.

Plaintiff’s claim for violation of the comp time provisions of the FLSA does not
allege that plaintiff was not allowed to take all comp time she actually earned. Instead,
plaintiff asserts that after complaining about the comp time agreement, she was
scheduled to work less desirable shifts, sent home from work arbitrarily and without
regard to her workload, and evaluated negatively based on her accumulated comp time.
These complaints may involve a violation of the anti-retaliation provisions of the FLSA, but
they do not state a claim for violation of the comp time requirements themselves.
Accordingly, plaintiff’s Second Claim for Relief will be dismissed.
Plaintiff’s Third Claim for Relief does assert a violation of the FLSA’s anti-retaliation
provisions, pursuant to which it is unlawful for an employer “to discharge or in any other
manner discriminate against any employee because such employee has 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). A complaint may be oral or written, but in either
instance, “must be sufficiently clear and detailed for a reasonable employer to understand
it, in light of both content and context, as an assertion of rights protected by the statute
and a call for their protection.” Kasten v. Saint-Gobain Performance Plastics Corp., –
U.S. –, 131 S.Ct. 1325, 1335, 179 L.Ed.2d 379 (2011). See also Valerio v. Putnam
Associates, 173 F.3d 35, 44 (1st Cir. 1999) (“[N]ot all abstract grumblings will suffice to
constitute the filing of a compliant with one's employer.”).

Although I agree with defendants that plaintiff’s allegation that she “voiced

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concerns” about her comp time agreement is itself too vague and conclusory to state a
plausible claim for relief, the broader allegations of the complaint flesh this assertion out in
sufficient detail to withstand dismissal. The complaint makes clear that plaintiff’s
concerns included compensation for on-duty time and the application of the comp time
agreement and that she made these concerns known to Mr. Ward. In addition, plaintiff
does specify a number of her concerns elsewhere in the complaint, for example, the limits
on the amount of comp time she was allowed to accrue, the requirement that she
schedule comp time in advance or a the direction of a supervisor, and the allegation that
plaintiff often was sent home from work arbitrarily to avoid accumulation of comp time.
Although the complaint arguably could do a better job of tying these specific concerns to
those plaintiff allegedly voiced to her employer, I am unwilling to say at this early juncture
that she can assert no plausible claim for relief on this basis. The motion to dismiss
plaintiff’s Third Claim for Relief therefore will be denied.
In her Fifth Claim for Relief, plaintiff asserts a violation of her First Amendment
rights. In the context of public employment, an employee’s free speech rights are
coterminous with her rights as a citizen to speak on matters of public concern. See
Borough of Duryea, Pennsylvania v. Guarnieri, – U.S. –,131 S.Ct. 2488, 2493, 180
L.Ed.2d 408 (2011); Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 1690, 75
L.Ed.2d 708 (1983). Otherwise,
when a public employee speaks not as a citizen upon matters
of public concern, but instead as an employee upon matters
only of personal interest, absent the most unusual
circumstances, a federal court is not the appropriate forum in
which to review the wisdom of a personnel decision taken by
a public agency allegedly in reaction to the employee's
behavior.

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Connick, 103 S.Ct. at 1690. “Whether an employee's speech addresses a matter of
public concern must be determined by the content, form, and context of a given
statement, as revealed by the whole record.” Id. (footnote omitted).
Nothing in plaintiff’s complaint suggests that the concerns she allegedly brought to
defendants’ attention were anything more than matters of private concern. Plaintiff
alleges that she was retaliated against for complaining about overtime pay. (Compl. ¶
152 at 26.) Nothing in the complaint makes manifest that these complaints had any
context broader than plaintiff’s own paycheck. The various larger health and safety
concerns plaintiff suggests she made known to defendants are set forth only in her
response to the motion to dismiss, not in the complaint itself, and therefore are not
effective to prevent dismissal of this claim.
Plaintiff’s Sixth and Tenth Claims for Relief allege that she was wrongfully
discharged in violation of public policy. Defendants claim that they are entitled to
immunity from these claims pursuant to the Colorado Governmental Immunity Act
(“CGIA”) at §24-10-106(1), C.R.S. I agree, at least to the extent that these claims purport
to be asserted against the BOCC and the WCCO.3 The CGIA preserves the sovereign
immunity of a public entity except in a limited number of specifically defined categories,
none of which is applicable here. See §24-10-106(1)(a)-(h), C.R.S. Plaintiff’s allegation
of willful and wanton conduct does not cure this fundamental deficiency in her pleading,

3

State officials sued in their individual capacities are not entitled to sovereign immunity unless the
state ultimately would be liable for the payment of damages against them or sovereign immunity otherwise
bars the action against the public entity. Middleton v. Hartman, 45 P.3d 721, 726-28 (Colo. 2002).
Because the allegation of willful and wanton conduct against a state employee absolves the state of liability
for any judgment against that employee, see id. at 728 (citing §24-10-110(1)(b)(I), C.R.S.), the individual
defendants still may be liable on these claims.

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and her assertion of a host of new (and completely irrelevant) facts in her response brief
likewise fails to overcome the county defendants’ immunity. These claims therefore also
will be dismissed insofar as they are asserted against the BOCC and the WCCO.
Plaintiff’s Seventh and Eighth Claims for Relief allege violations of the Americans
With Disabilities Act (“ADA”). The first purports to assert a claim for discrimination based
on a hostile work environment, which the Tenth Circuit has recognized as actionable.
See Lanman v. Johnson County, Kansas, 393 F.3d 1151, 1155-56 (10th Cir. 2004).
Because the ADA is interpreted consistently with Title VII, plaintiff must allege facts
sufficient to demonstrate, inter alia, that her “workplace [was] permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to
alter the conditions of the victim's employment and create an abusive working
environment.” EEOC v. Dillon Companies, Inc., 2011 WL 1226215 at *2 (D. Colo.
March 30, 2011) (quoting Penry v. Home Loan of Topeka, 155 F.3d 1257, 1261 (10th
Cir. 1998), cert. denied, 119 S.Ct. 1334 (1999)) (alteration in Dillon).
The complaint comes nowhere near making out this essential element of a hostile
work environment claim. Plaintiff alleges merely that she was subject to “excessive and
unwarranted disciplinary action”4 and scheduled to work less desirable hours and multiple
back-to-back shifts after complaining about compensation for on-duty time and comp
time. (Compl. ¶¶ 167-168 at 28.) These allegations are too vague, conclusory, and thin
to allege the type of severe and pervasive harassment that would support a hostile work

4

Plaintiff specifically identifies only two instances in which she received Performance Correction
Notices shortly after receiving her accumulated comp time payout in June 2009. (Compl. ¶¶ 86-87 at 15.)
She does not specify what alleged infractions the notices purported to address, whether they were
unwarranted, how they were resolved (if at all), and what consequences attended their issuance.

9

environment claim.
To assert a claim for discrimination under the ADA, plaintiff must allege facts
sufficient to show, inter alia, that she was qualified to perform the essential functions of
her job with or without reasonable accommodation. Hennagir v. Utah Department of
Corrections, 587 F.3d 1255, 1261 (10th Cir. 2009). A primary question in determining
whether the lifting requirements of the MI job are essential job functions is whether the
employer “actually requires all employees in the particular position to satisfy the alleged
job-related requirement.” Davidson v. America Online, Inc., 337 F.3d 1179, 1191 (10th
Cir. 2003). Plaintiff has alleged that a male employee of the WCCO was placed on light
duty after lifting restrictions were imposed on him. (Compl. ¶ 36 at 8 & ¶ 111 at 19.)
Thus, although the court should not “second guess the employer or to require him to
lower company standards,” Davidson, 337 F.3d at 1191, the allegation suggests that the
lifting requirement was neither uniformly enforced nor consistent with business necessity,
id. I therefore find and conclude that plaintiff’s complaint adequately pleads a plausible
claim for discrimination under the ADA.
Although plaintiff has designated her Ninth Claim for Relief as “Family and Medical
Leave Act – Interference/Retaliation,” these are actually separate causes of action, with
different elements, under the FMLA. See Campbell v. Gambro Healthcare, Inc., 478
F.3d 1282, 1287 (10th Cir. 2007). The way in which plaintiff has pleaded this cause of
action, however, leads me to conclude that she, in fact, has asserted only a retaliation

10

claim.5 A prima facie case of FMLA retaliation requires proof (1) that plaintiff engaged in a
protected activity; (2) that her employer took actions that a reasonable employee would
have found materially adverse; and (3) that there was a causal connection between the
protected activity and the adverse action, that is, that there was bad faith or retaliatory
motive on the part of the employer. Id. In response, defendants argue that plaintiff
cannot make out such a claim because of her inability to perform the allegedly essential
lifting functions of the job. In essence, defendants assert that plaintiff cannot overcome
their legitimate, non-discriminatory reason for her termination.
There are at least two problems with this argument. First, although FMLA
retaliation claims are analyzed under the burden-shifting analysis developed in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973), see id., that framework is applicable only in the context of a motion for summary
judgment, and has no relevance to a plaintiff’s pleading burden under Rule 12(b)(6), see
Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 511-14, 122 S.Ct. 992, 997-99, 152
L.Ed.2d 1 (2002); Negrete v. Maloof Distributing L.L.C., 2006 WL 4061178 at*7 (D.N.M.
Oct. 17, 2006); Yonker v. Centers for Long Term Care of Gardner, Inc., 2006 WL
516851 at*4 (D. Kan. March 2, 2006).
Second, and as noted above, the complaint adequately alleges that the lifting

5

To establish an interference claim, plaintiff must plead facts plausibly demonstrating, inter alia,
“that some adverse action by the employer interfered with h[er] right to take FMLA leave.” Campbell v.
Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007) (citation and internal quotation marks
omitted; alterations in original). In this regard, plaintiff “must show that she was prevented from taking the
full 12 weeks' of leave guaranteed by the FMLA, denied reinstatement following leave, or denied initial
permission to take leave.” Id. Although plaintiff argues in her response that defendants miscalculated her
FMLA leave and that she still had some leave pending at the time of her termination, nothing in her
complaint itself can fairly be read to suggest that any of these scenarios is applicable here. Defendants’
motion for summary judgment as to this aspect of this claim therefore will be granted.

11

requirement was not uniformly applied. A plaintiff may create a triable issue of pretext by
showing “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.” Swackhammer v.
Sprint/United Management Co., 493 F.3d 1160, 1167 (10th Cir. 2007) (citation and
internal quotation marks omitted). One common method of doing so is to demonstrate
differential treatment between similarly situated employees. See id. at 1167-68. I thus
deny defendants’ motion to dismiss plaintiff’s Ninth Claim for Relief insofar as it asserts a
claim for retaliation under the FMLA.
Plaintiff’s Eleventh Claim for Relief asserts a violation of her due process rights,
specifically, that she was denied notice and an opportunity to be heard prior to her
termination. (Compl. ¶ 191 at 32.) However, her complaint fails to allege that she held
any protectible property interest in her job. “The Fourteenth Amendment, by its terms,
guarantees due process only for the deprivation of ‘life, liberty, or property.’” Lauck v.
Campbell County, 627 F.3d 805, 812 (10th Cir. 2010) (quoting U.S. CONST., amend. XIV,
§ 1). “A government employee may have a property interest in his position, but only if he
has a legitimate claim of entitlement to that position.” Id. (citation and internal quotation
marks omitted). To show such an entitlement, the employee must point to some specific
statutory provision or contractual right. Id. Plaintiff has alleged nothing that would
suggest that she had any such protectible interest in her position with the WCCO. I
therefore grant the motion to dismiss this claim.
Plaintiff also has alleged a breach of her comp time agreement. She asserts that

12

defendants’ breached the agreement by restricting her accumulation of comp time and
assigning her less favorable office hours and on-duty shifts. (Compl. ¶ 205 at 34.)
Although defendants complain that plaintiff has failed to allege that the agreement
required that plaintiff be provided with better hours and/or allowed to accumulate more
comp time, I believe such allegations are fairly implied by the assertion of a breach of the
contract. Moreover, it is impossible based on the record before me to determine whether
such terms in fact were part of the contract, as defendants failed to attach a copy of the
agreement to their motion to dismiss, although it would have been entirely proper to do
so. See Prager v. LaFaver, 180 F.3d 1185, 1189 (10th Cir.), cert. denied, 120 S.Ct. 405
(1999). I therefore deny the motion to dismiss this claim.
Plaintiff’s Thirteenth Claim for Relief (mis-designated in the complaint as the
Eleventh Claim for Relief), asserts a violation of her plaintiff’s equal protection rights. The
allegations attendant on this claim are vague, unsubstantiated in any particular, and
frankly, almost nonsensical.6 I thus grant the motion to dismiss this claim as well.
Three collateral issues remain. First defendants argue that the WCCO is not a
proper party to this action because it is not an entity separate from the county itself. This
argument is premised on the authority of Stump v. Gates, 777 F.Supp. 808 (D. Colo.
1991), aff’d, – Fed. Appx. –, 1993 WL 33875 (10th Cir. Feb. 11, 1993). which confirms that
county or municipal offices or departments that do not exist as separate juridical entities

6

Plaintiff alleges in conclusory fashion that defendants classified WCCO employees into two
categories based on whether they signed the comp time agreement. (Compl. ¶ 208 at 35.) She then
alleges that employees who did not sign the agreement or later opted out of it were precluded from working
overtime and scheduled to work less desirable shifts. (Id. ¶ 209 at 35.) Given that plaintiff admits she
signed the comp time agreement and never alleges that she opted out of it, it is not at all clear how she was
harmed by the alleged classification.

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are not “persons” subject to suit under section 1983. Id. at 815-16. None of plaintiff’s
remaining claims, however, implicates section 1983.7 Defendants have not shown that
this doctrine has application outside that particular context, and I have found no case so
holding. Their motion to dismiss WCCO on that basis therefore will be denied.
Second, defendants maintain that Messrs. Wilkerson and Allen are not subject to
liability under the FLSA because they were not plaintiff’s employers. I agree. The FLSA
defines an “employer” to “include[] any person acting directly or indirectly in the interest of
an employer in relation to an employee and includes a public agency.” 29 U.S.C. §
203(d). Although this definition has been characterized as “expansive,” it must be shown
that the person or entity sought to be charged has “substantial control of the terms and
conditions of the work of [its] employees.” Falk v. Brennan, 414 U.S. 190, 195, 94 S.Ct.
427, 431, 38 L.Ed.2d 406 (1973). See Donovan v. Tavern Talent and Placements,
Inc., 1986 W L 32746 at *2-3 (D. Colo. Jan. 8,1986) (noting that in determination of
employer stats, “‘economic reality’ prevails over technical common law concepts of
agency” and that “[t]here may be several simultaneous employers”). Nothing in plaintiff’s
complaint itself states or suggests that Messrs. Wilkerson or Allen had the type of control
over the terms and conditions of plaintiff’s employment. The motion to dismiss the FLSA
claims against these individual defendants therefore will be granted.
Third and finally, defendants argue that punitive damages are not available under

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Following entry of this order, it appears to this court that the remaining claims are (1) retaliation
under the FLSA as against the BOCC, the WCCO, and Mr. Ward (Third Claim for Relief); (2) wrongful
discharge as against the individual defendants only (Sixth and Tenth Claims for Relief); (3) discrimination
under the ADA (Eighth Claim for Relief): (4) retaliation under the FMLA (Ninth Claim for Relief); (5) breach
of contract (Twelfth Claim for Relief); and (6) discrimination under Title VII (Fourteenth Claim for Relief, misdesignated in the complaint as Twelfth Claim for Relief).

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the FLSA. This is an issue on which federal courts have not agreed, and the Tenth Circuit
has yet to decide the issue. See Conus v. Watson’s of Kansas City, Inc., 2011 WL
4348315 at *3 & n.23 (D. Kan. Sept. 16, 2011) (citing cases). Given the unsettled state of
the law and the paucity of defendants’ arguments on the matter, I decline defendants’
invitation to dismiss this portion of plaintiff’s FLSA claims at this juncture.8
IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That defendants’ Motion for Leave To Exceed the Court’s Page Limit [#14]
filed January 30, 2012, is GRANTED; and
2. That defendants’ Motion for Partial Dismissal of Claims [#15], filed January
30, 2012, is GRANTED IN PART and DENIED IN PART as follows:
a. That the motion is GRANTED with respect to
(1) The First, Second, Fifth, Seventh, Eleventh, and Thirteenth (misdesignated as Eleventh, alleging violation of the Equal Protection
Clause) Claims for Relief set forth in plaintiff’s Complaint and
Demand for Jury Trial [#1] filed December 7, 2011, which claims
are DISMISSED WITHOUT PREJUDICE;
(2) The Ninth Claim for Relief as set forth in plaintiff’s Complaint and
Demand for Jury Trial [#1] filed December 7, 2011, insofar as it

8

Moreover, defendants’ blanket assertion that governmental entities are not subject to punitive
damages overstates the law. “The general rule today is that no punitive damages are allowed unless
expressly authorized by statute.” City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 261 n.21, 101
S.Ct. 2748, 2756 n.21, 69 L.Ed.2d 616 (1981). Thus, defendants’ argument begs the more basic question
whether the FLSA allows punitive damages.

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asserts a claim for interference with plaintiff’s rights under the Family
and Medical Leave Act, which claim is DISMISSED WITHOUT
PREJUDICE;
(3) The Sixth and Tenth Claims for Relief as set forth in plaintiff’s
Complaint and Demand for Jury Trial [#1] filed December 7, 2011,
as against the Board of County Commissioners of Weld County,
Colorado, and the Office of the Weld County Coroner/Medical
Examiner only, which claims are DISMISSED WITH PREJUDICE;
(4) The Fourth Claim for Relief as set forth in plaintiff’s Complaint
and Demand for Jury Trial [#1] filed December 7, 2011, which
claim is DISMISSED WITH PREJUDICE;
(5) Plaintiff’s Third Claim for Relief as against defendants Patrick C.
Allen, M.D., in his individual capacity, and James A. Wilkerson IV,
M.D., in his individual capacity, only, which claims are DISMISSED
WITHOUT PREJUDICE; and
b. That in all other respects, the motion is DENIED.
Dated July 19, 2012, at Denver, Colorado.
BY THE COURT:

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