Marshall v. Exelis Systems Corporation et al

Filing 112

ORDER re 47 Motion to Dismiss. Defendant Exelis Systems Corporation's Motion to Dismiss Plaintiff's 42 U.S.C. § 1981 and Outrageous Conduct Claims (Doc. # 47 ) is DENIED IN PART with respect to its arguments regarding Plaintiff's outrageous conduct claim. By Judge Christine M. Arguello on 08/26/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-00545-CMA-KMT
RASHANNA MARSHALL,
Plaintiff,
v.
EXELIS SYSTEMS CORPORATION, and
LAWRENCE LINDLOFF,
Defendants.

ORDER DENYING DEFENDANT EXELIS’ MOTION TO DISMISS
PLAINTIFF’S OUTRAGOUS CONDUCT CLAIM

In this employment discrimination action, Plaintiff Rashanna Marshall alleges that
Defendants discriminated against her on the basis of race during her employment on
Bagram Airfield, the largest military base in Afghanistan. This matter is before the Court
on Defendant Exelis Systems Corporation’s (“Exelis”) Motion to Dismiss Plaintiff’s 42
U.S.C. § 1981 and Outrageous Conduct Claims. (Doc. # 47.) The Court previously
granted in part that motion and dismissed Marshall’s Section 1981 claims. (Doc. # 81.)
For the reasons discussed below, the Court denies the balance of the motion, which
asks it to dismiss Marshall’s outrageous conduct claim.

I. BACKGROUND 1
Marshall, an African-American female, worked for Exelis for five years, starting
in 2006. Exelis is a Colorado corporation with its principal place of business in Colorado
Springs Colorado, but employs over 7,800 employees worldwide and performs
numerous contracts for the United States government related to defense services.
During her employment, Marshall, a United States citizen and resident of Texas, worked
at Bagram Airfield in Afghanistan. During all times relevant to this action, Lindloff was
a resident of Iowa and a United States citizen. (Doc. # 31 at 1-2.)
Marshall alleges that in the summer of 2011, she discovered that Defendants
were discriminating against her and her African-American co-workers. She alleges
that Defendants passed her and other African Americans over for job opportunities and
provided them less favorable terms and conditions of employment than were provided
to their similarly situated non-African-American counterparts. Marshall reported her
concerns to her supervisor, Lindloff, and when he refused to remedy the problems, she
reported her concerns to Exelis human resources and upper management. (Id. at 1-2,
7-8.) Hours after meeting with upper management to discuss her concerns regarding
race discrimination, Lindloff retaliated against Marshall by giving her a disciplinary writeup, in part because she “accused him of being a racist . . . .” (Id. at 8.) Marshall then
contacted Exelis’s human resources department located in Colorado Springs and
reported that “Exelis was discriminating against her and others on the basis of race,

1

Unless otherwise noted, the following facts are allegations from Plaintiff’s Amended Complaint
(Doc. # 31) and are deemed true for purposes of the instant motion.

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and that she had been written up for expressing her opposition to race discrimination.”
(Id.) Marshall contacted human resources a second time to discuss her concerns of
discrimination and retaliation. (Id.)
On November 9, 2011, Marshall began to experience chest pains. She sought
treatment at an on-base medical center, where a paramedic placed Marshall on bed
rest pending further tests. The paramedic wrote a letter informing Exelis of Marshall’s
condition. Lindloff and another employee contacted the medical center to attempt to
verify the veracity of this letter and demanded information on Marshall’s medical
condition. (Id. at 9.)
On November 11, 2011, Lindloff fired Marshall. Following her termination,
Lindloff and another Exelis employee attempted to obtain access to Marshalls’ medical
records in an effort to provide a post hoc justification for her termination; however,
medical employees refused to provide that information. (Id. at 8-12.)
Plaintiff filed the instant action, alleging race discrimination and retaliation under
42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as well as claims of
outrageous conduct and intentional interference with contract and/or prospective
business advantage under Colorado law. (Doc. # 31, at 13-23.) The Court previously
granted in part Exelis’s motion to the extent it asked for dismissal of Marshall’s § 1981
claims. (Doc. # 81.) The Court now addresses the balance of Exelis’s motion, in which
it asks the Court to dismiss Marshall’s Colorado state law claim for outrageous conduct.
(Doc. # 47.)

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II. DISCUSSION
Defendants move to dismiss Marshall’s outrageous conduct claim, arguing that
the claim fails as a matter of law because (1) “Colorado choice-of-law rules preclude the
application of Colorado outrageous conduct tort law to govern the parties’ relationship in
Afghanistan”; and (2) “Exelis’s due process rights would be violated if Colorado tort law
applied here.” (Doc. # 47 at 6.) The Court will address each contention in turn.
A.

CHOICE-OF-LAW ANALYSIS
Federal courts exercising supplemental jurisdiction apply the substantive law of

the forum state, including its choice-of-law rules. BancOklahoma Mortg. Corp. v. Capital
Title Co., 194 F.3d 1089, 1103 (10th Cir. 1999). In tort cases, such as this one,
Colorado’s choice-of-law standard is the “most significant relationship” test, as
articulated in the Restatement (Second) of the Conflict of Laws §§ 6, 145, 171 (1971)
(the “Restatement”). AE, Inc. v. Goodyear Tire & Rubber Co., 168 P.3d 507, 508 (Colo.
2007). In applying that test, the Court analyzes the following contacts:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place
of business of the parties, and
(d) the place where the relationship, if any, between the parties is
centered.
Restatement § 145(2). Such contacts “are to be evaluated according to their relative
importance with respect to the particular issue.” Id. Further, § 145(2) requires the Court
to analyze the following factors listed in § 6 of the Restatement:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,

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(c) the relevant policies of other interested states and the relative interests
of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
The weight these factors carry often “var[ies] in importance and in application
depending upon the field of law and the particular issue under consideration.” Sabell
v. Pac. Intermountain Express Co., 536 P.2d 1160, 1164 (Colo. App. 1975). In cases
where the primary purpose of the tort rule is to deter wrongful conduct, the place where
the conduct occurred may be more important than in other cases. See Restatement
§ 145, cmts. c, e. Additionally, “when the injury was caused by an act done in the
course of the relationship, the place where the relationship is centered” should be
considered. See id. § 145, cmt. e.
Exelis argues that Afghanistan law applies and therefore, the Court should
dismiss Marshall’s outrageous conduct claim, which sounds in Colorado law. Although
Marshall’s injuries and the conduct causing the injuries occurred in Afghanistan, the
Court finds that on this particular set of facts, Colorado law applies. Marshall, a citizen
of the United States, worked for Exelis, a Colorado corporation with its principal place
of business in Colorado. Exelis assigned Marshall to work on a United States military
base in Afghanistan. When she believed she was retaliated against for reporting
discriminatory conduct, Marshall contacted human resources employees in Colorado.
Moreover, other courts have declined to apply foreign law in cases involving injuries that
occurred outside of the United States because plaintiffs face accessibility issues. See
Rux v. Republic of Sudan, 495 F. Supp. 2d 541, 558 (E.D. Va. 2007), abrogated on
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other grounds by, 07-1835, 2009 WL 9057606 (4th Cir. July 4, 2009) (declining to apply
Yemen or Sudan laws in case involving an act of terrorism against an American warship
flying the flag of the United States in which seventeen U.S. nationals were killed,
because “[t]he courts of Yemen and Sudan are plainly inaccessible to Plaintiffs, all
of whom are themselves U.S. nationals and reside in the United States.”) Likewise,
courts have determined that domestic law applies to tort claims for injuries sustained
in Afghanistan. 2
Notwithstanding the determination that Colorado law applies, the Court notes
that Exelis asks for relief to which it is not entitled. In a typical choice-of-laws scenario,
a court determines what law applies, then applies the chosen law to determine whether
a plaintiff has stated a claim for that cause of action. See, e.g., Gloston v. ITT Federal
Servs. Int’l Corp., 06-cv-02168-PSF-BNB, 2007 WL 18304086, (D. Colo. June 21,
2007). Conversely, here, Exelis argues that Afghanistan, rather than Colorado, Iowa, or
Texas, has the most significant relationship, but then simply asks this Court to dismiss
Marshall’s claim. Other than a general reference to Afghanistan’s Labor Code, Exelis
offers no reference to Afghanistan law nor does it demonstrate that an outrageous
2

See, e.g., Burke v. Air Serv Int'l, Inc., 775 F. Supp. 2d 13, 18 (D.D.C. 2011) aff'd, 685 F.3d
1102 (D.C. Cir. 2012) (District of Columbia applies in action to recover damages where plaintiff
was injured in security detail because there is no conflict between D.C., Florida, New Jersey,
and Virginia law); Berry v. WorldWide Language Res., Inc., 716 F. Supp. 2d 34, 53 (D. Me.
2010) (applying Maine law to intentional infliction of emotional distress claim that arose during
plaintiff’s employment in Afghanistan); see also Dammarell v. Islamic Republic of Iran,
CIV.A.01-2224JDB/JMF, 2006 WL 2382704 (D.D.C. Aug. 17, 2006) adopted, CIV.A.012224(JDB), 2006 WL 2583043 (D.D.C. Sept. 7, 2006) and supplemented, CIVA 01-2224
JDBJMF, 2006 WL 2724788 (D.D.C. Sept. 1, 2006) adopted, CIV.A.01-2224(JDB), 2006 WL
2583043 (D.D.C. Sept. 7, 2006) (applying domestic law for intentional infliction of emotional
distress claims for April 18, 1983 car bombing in Beirut, Lebanon).

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conduct or intentional infliction of emotional distress claim is not recognized in
Afghanistan. Instead it cites generally to Afghanistan’s Labor Code and asserts that
“Afghanistan already regulates the employment relationship and employers’ access
to employees’ medical records.” (Doc. # 47 at 8.) Moreover, while not addressed by
either party, it is questionable whether this is sufficient notice to the Court for application
of foreign law, pursuant to Fed. R. Civ. P. 44.1. See Harris v. Kellogg, Brown & Root
Servs., Inc., 796 F. Supp. 2d 642, 651-52 (W.D. Pa. 2011) (“Where parties fail to satisfy
either burden the court will ordinarily apply the forum's law.”); see also Mutual Serv. Ins.
V. Frit Indus., 358 F.3d 1312, 1321 (11th Cir. 2004) (“The district court is not required to
conduct its own research into the content of foreign law if the party urging its application
declines to do so.”). The Court finds that Colorado law applies to Plaintiff’s outrageous
conduct claim.
B.

DUE PROCESS
Next, Exelis argues that its due process rights would be violated by applying the

laws of any state except Afghanistan. The Due Process Clause of the Constitution
provides modest restrictions on the application of forum law. Allstate Ins. Co. v. Hague,
449 U.S. 302, 307-08 (1981) (plurality opinion). These restrictions require that “for a
State’s substantive law to be selected in a constitutionally permissible manner, that
State must have a significant contact or significant aggregation of contacts, creating
state interest, such that choice of its law is neither arbitrary nor fundamentally unfair.”
Id. at 312-13.

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As with the conflict-of-laws analysis, the Court finds that application of Colorado
law does not offend Exelis’s due process rights. Exelis is a Colorado corporation with
its principal place of business in Colorado Springs. As in Allstate, by virtue of Exelis’s
presence in Colorado, it “can hardly claim unfamiliarity with the laws of the host
jurisdiction and surprise that the state courts might apply forum law to litigation in
which the company is involved.” Id. Moreover, Marshall contacted human resources
employees in Colorado to report her belief that she was being discriminated and
retaliated against. In the aggregate, these contacts are sufficient to create state interest
in litigating this claim under Colorado law and that choice of law is neither arbitrary nor
fundamentally unfair.
III. CONCLUSION
Accordingly, it is ORDERED that Defendant Exelis Systems Corporation’s Motion
to Dismiss Plaintiff’s 42 U.S.C. § 1981 and Outrageous Conduct Claims (Doc. # 47) is
DENIED IN PART with respect to its arguments regarding Plaintiff’s outrageous conduct
claim.
DATED: August

26

, 2014
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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