Marshall v. Exelis Systems Corporation et al
Filing
154
ORDER granting in part and denying in part 78 Motion for Summary Judgment; granting in part and denying in part 79 Motion for Summary Judgment. By Judge Christine M. Arguello on 03/26/2015. (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 GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
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 in Afghanistan. This matter is before the Court on Defendant Exelis
Systems Corporation’s (“Exelis”) Motion for Summary Judgment (Doc. # 78) and
Defendant Lawrence Lindloff’s Motion for Summary Judgment (Doc. # 79). For the
reasons discussed below, the Court grants in part and denies in part both motions.
I. BACKGROUND 1
In June 2006, Marshall began working for Exelis at Bagram Airfield. (Doc. # 78,
¶ 1.) In February 2011, Lindloff became the Afghanistan Country Manager and one of
Marshall’s supervisors. (Id., ¶¶ 7, 8.) Starting in approximately May 2011, Marshall
1
Unless otherwise noted, these facts are deemed undisputed. The Court sets forth facts only
as necessary to address the pertinent arguments in Defendants’ motions.
began to complain to Lindloff that Exelis failed to consider her and other qualified
African Americans for a promotion from Network Administrator to Temporary Section
Lead, which was given to Robert Coapman, who is white. (Doc. # 116, ¶¶ 16, 17.)
On May 26, 2011, Site Manager Robert Payne requested a merit-pay increase
for Marshall because he “really would like to keep her on Bagram” due to her
“knowledge of the network . . . .” (Doc. # 78, ¶ 27.) However, her pay increase was
denied. Simultaneously, Exelis approved a merit increase for Marshall’s white coworker. (Doc. # 116, ¶ 28.) Later, Lindloff told Marshall that her request was denied
because it was not his policy to give out-of-cycle raises. (Doc. # 78, ¶ 44.)
In August of 2011, Lindloff complained that Marshall had raised her voice and
spoke to him in disrespectful tone. Although Marshall denied doing so, Lindloff gave her
a written warning. (Doc. # 78, ¶ 41.) Marshall alleges that the written warning was in
retaliation for her complaints about race discrimination. (Doc. # 116, ¶ 41.)
Between October 24 and November 7, Exelis decided that all Network
Administrators would work at the South Node, resulting in Marshall’s and her fiancé
Andre Hill’s assignment to that location. (Doc. # 78, ¶ 52.) Exelis tested employees’
technical abilities through a “tech out,” which Hill did not pass. (Id., ¶¶ 53, 56.) Hill was
demoted to Help Desk Administrator and told he would be transferred to another site in
Afghanistan. (Id., ¶ 59.) On November 7, 2012, Marshall inquired whether Lindloff
would treat her request to transfer to join Hill “equally.” (Doc. # 78-1 at 37.) During the
meeting, Marshall accused Lindloff of dismissing her concerns by rolling his eyes. (Doc.
# 116, ¶ 65.) The following day, Lindloff drafted a final written warning in which he
2
stated that during the meeting, Marshall accused him of “being a racist, rolling [his]
eyes, and acting inappropriately” and reprimanded her for being “loud and
unprofessional.” (Doc. # 78-4.) Marshall denied that she behaved in an inappropriate
manner. (Doc. # 116, ¶ 74.)
Lindloff forwarded the warning to Program Manager Harry Loper and Human
Resources Professional Bridget Bailey, who held a conference call with Marshall that
day. (Doc. # 78, ¶¶ 72, 73.) During the call, Marshall repeated her concerns that
Lindloff was racist and treated her and other African Americans unfairly because of their
race. She expressed concern that, following his own termination, a former AfricanAmerican employee warned her and her fiancé that they would be the next targets. She
also reiterated her concern that African Americans were passed up for promotions and
that she was denied a pay raise, even though Lindloff approved one for a white
employee, and that Lindloff failed to take action in response to another employee’s
racially derogatory remark. (Doc. ## 78, ¶ 76; 116, ¶ 76.) That evening, Lindloff gave
Marshall the written reprimand, at which time she became emotional and cried. (Doc. #
78, ¶ 77.) Following that meeting, Lindloff recommended that Exelis terminate
Marshall’s employment. (Id., ¶ 84.)
On November 9, 2012, Marshall told Site Manager Luther Murray that she was
en route to the S3 Medical Clinic with chest pains and, then, that the clinic was referring
her to Dubai for further testing. (Doc. # 116, ¶ 87.) Marshall gave Murray a note from
an EMT at the clinic, stating that she needed “bed rest” until November 17, when she
would “travel to Dubai for testing . . . .” (Doc. # 78, ¶ 88.) On November 11, Vice
3
President of Human Resources Frank Peloso decided to terminate Marshall’s
employment for insubordination. (Id., ¶ 89.) That day, when Marshall came into the
office to fill out medical leave paperwork, Bailey and Lindloff informed her that she was
terminated. (Id., ¶ 90.)
The following day, Bailey and Lindloff went to the S3 Medical Clinic to request
information related to Marshall’s illness. (Id., ¶ 92.) Bailey and Lindloff claim that
because Exelis is required to promptly evacuate or “demobilize” from Bagram any
employee whose employment has been terminated, they asked merely whether
Marshall’s medical condition prevented her from traveling before November 17 and if
she could travel commercially or required a medevac. (Id., ¶¶ 91, 92.) However, John
Kronmiller wrote an email 2 complaining to Loper that Lindloff and Bailey “question[ed]
the validity of a medical referral and the credibility of our medical staff.” (Doc. # 11636.) Kronmiller further stated, “S3 Medical Clinic is in no way associated with and does
not report to your company regarding your employees, however, we also will not be lied
to or be used to obtain a termination.” (Id.) He also stated that Lindloff and Bailey
“have gone above and beyond to attack a patient of the S3 Medical Clinic and tried to
get information that they were not privy to . . . .” (Id.)
On August 29, 2012, Marshall filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), alleging that she was discriminated
against based on race and subjected to discriminatory and retaliatory discipline,
2
Defendants object to the admissibility of this email as hearsay. However, Marshall has
designated Kronmiller as a witness. Therefore, even if the contents of the email are not
admissible at trial, the Court considers it as demonstrative of what his testimony will be at trial.
4
including discharge. (Doc. # 78-5.) On March 1, 2013, Marshall filed the instant action.
(Doc. # 1.) Both Defendants moved for summary judgment, which is ripe for this Court’s
review. (Doc. ## 78, 79, 110, 111, 116, 118, 126, 128.)
II. STANDARD OF REVIEW
Summary judgment is warranted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it is essential to the proper
disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc.,
259 F.3d 1226, 1231-32 (10th Cir. 2001). A dispute is “genuine” if the evidence is such
that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v.
Muskogee, Okl., 119 F.3d 837, 839 (10th Cir. 1997). When reviewing motions for
summary judgment, a court must view the evidence in the light most favorable to the
non-moving party. Id. However, conclusory statements based merely on conjecture,
speculation, or subjective beliefs do not constitute competent summary judgment
evidence. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
The moving party bears the initial burden of demonstrating an absence of a
genuine dispute of material fact and entitlement to judgment as a matter of law. Id. In
attempting to meet this standard, a movant who does not bear the ultimate burden of
persuasion at trial does not need to disprove the other party’s claim; rather, the movant
need simply point the Court to a lack of evidence for the other party on an essential
element of that party’s claim. Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 671 (10th
Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
5
Once the movant has met its initial burden, the burden then shifts to the
nonmoving party to “set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The nonmoving party
may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving
party must “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.” Adler, 144 F.3d at
671. “To accomplish this, the facts must be identified by reference to affidavits,
deposition transcripts, or specific exhibits incorporated therein.” Id.
III. ANALYSIS
A.
STATE LAW CLAIMS—OUTRAGEOUS CONDUCT AND INTENTIONAL
INTERFERENCE WITH CONTRACT
1.
Outrageous Conduct Claim Against Exelis
a.
Preemption
Exelis contends that the Defense Base Act (“DBA”) bars Plaintiff’s outrageous
conduct claim. The DBA extends and incorporates the provisions of the Longshore and
Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901, et seq., to provide
federal workers’ compensation coverage for injuries suffered by certain classes of
employees working outside the United States, including on military bases. 42 U.S.C. §
1651(a). The DBA’s purpose is to “provide uniformity and certainty in availability of
compensation for injured employees on military bases outside of the United States.”
Davila–Perez v. Lockheed Martin Corp., 202 F.3d 464, 468 (1st Cir. 2000).
Both the DBA and the LHWCA contain exclusivity provisions that preempt all
state law claims. See 42 U.S.C. § 1651(c) (DBA); 33 U.S.C. § 905(a) (LHWCA).
6
Courts evaluating this language have found that it clearly expresses Congress’s intent
that the DBA preempt any and all claims that fall within the ambit of that statute. 3 Thus,
if Marshall’s injuries fall within the scope of the DBA, she cannot pursue her state law
claims for outrageous conduct against Exelis. Marshall does not contest that the DBA
provides an exclusive remedy for a covered injury. Instead, she argues that because
she sustained injuries after her termination, her claim does not fall within the scope of
the DBA because her injuries did not “aris[e] out of and in the course of employment.”
See 33 U.S.C. § 902(2). Specifically, Marshall alleges that, following her termination,
(1) she lost her housing and dining privileges, (2) she was required to immediately leave
Bagram, and (3) Exelis attempted to improperly obtain her medical information after she
visited an on-base clinic with chest pains.
The DBA applies to claims for the “injury or death of any employee.” 42 U.S.C. §
1651(a). However, the DBA does not define “injury.” 42 U.S.C. § 1651 et seq.
Therefore, the Court looks to the LHWCA for a definition of “injury,” which is defined as
an:
accidental injury or death arising out of and in the course of employment,
and such occupational disease or infection as arises naturally out of such
3
See, e.g., Fisher v. Halliburton, 667 F.3d 602 (5th Cir. 2012) (“[T]he coverage provisions of the
Defense Base Act clearly evidence the intent that the act shall afford the sole remedy for injuries
or death suffered by employees in the course of employments which fall within its scope.”)
(citation omitted); Sickle v. Torres Advanced Enter. Solutions, LLC, No. 11-CV-2224 (KBJ),
2013 WL 7231238 (D.D.C. Dec. 24, 2013); Brink v. XE Holding, LLC, 910 F.Supp.2d 242, 24951 (D.D.C. 2012) (the DBA’s exclusivity language bars state law causes of action related to
claims for DBA benefits); Nauert v. Ace Props. & Cas. Ins. Co., No. 104CV02547, 2005 WL
2085544, at *3 (D. Colo. Aug. 27, 2005) (the DBA’s plain language preempts state law claims
arising from alleged bad faith handling of LHWCA claims); Martin v. Halliburton, 808 F. Supp. 2d
983, 989 (S.D. Tex. 2011) (finding that the language of the DBA’s exclusivity provision preempts
common law claims that fall within the statute’s scope).
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employment or as naturally or unavoidably results from such accidental
injury, and includes an injury caused by the willful act of a third person
directed against an employee because of his employment.
33 U.S.C. § 902(2). This standard relaxes common law principles of causation:
Workmen’s compensation is not confined by common-law conceptions of
scope of employment. The test of recovery is not a causal relation
between the nature of employment of the injured person and the accident.
Nor is it necessary that the employee be engaged at the time of the injury
in activity of benefit to his employer. All that is required is that the
‘obligations or conditions’ of employment create the ‘zone of special
danger’ out of which the injury arose.
O’Leary v. Brown–Pacific–Maxon, Inc., 340 U.S. 504, 506-07 (1951) (internal citations
omitted); see also Gondeck v. Pan American World Airways, Inc., 382 U.S. 25, 27
(1965).
Relying on an U.S. Department of Labor administrative decision, Exelis argues
that the DBA applies because Afghanistan is a “zone of special danger.” M.P. v. Ser.
Emp’rs Int’l, Inc., 2007-LDA-00123, at 5 (Dep’t of Labor Sept. 24, 2007); (Doc. # 126-2).
Exelis’s reliance on this decision oversimplifies the analysis that this Court must
undertake to determine whether Marshall’s claims fall within the ambit of the DBA. As
the district court in Jones v. Halliburton Co. observed, “employment in an overseas
locale, and specifically within the Iraqi war zone, does not constitute in itself a condition
of employment creating a zone of special danger . . . .” 791 F. Supp. 2d 567, 584 (S.D.
Tex. 2011). Rather, “[t]he ‘zone of special danger’ standard requires a court to focus
not only upon the place of employment, but also upon the conditions and obligations of
the employment.” Id. Review of cases in which courts have engaged in this analysis is
instructive.
8
In O’Leary, the Supreme Court determined that an employee of a government
contractor operating in Guam was within the zone of special danger when he died trying
to rescue two drowning swimmers in a channel adjacent to a recreation center operated
by his employer. 340 U.S. at 505. The Court stated, “A reasonable rescue attempt . . .
may be one of the risks of the employment, an incident of the service, foreseeable, if not
foreseen, and so covered by the statute.” Id. at 507 (internal quotation marks and
citation omitted). However, the O’Leary court acknowledged that there may be cases
“where an employee even with the laudable purpose of helping another, might go so far
from his employment and become so thoroughly disconnected from the service of his
employer that it would be entirely unreasonable to say that injuries suffered by him
arose out of and in the course of his employment.” Id.
In O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., the Supreme Court
applied a deferential standard in reviewing an administrative decision awarding benefits
and determined that a man employed at a defense base in South Korea was in the
special zone of danger when he drowned during a Saturday outing while boating on a
lake. 380 U.S. 359, 360-64 (1965). The Court found persuasive the terms and
conditions of the decedent’s employment, which included that he work on a 365 day per
year basis, subject to call to the job site at any time; his transportation to Korea and
back to the United States was at the employer’s expense; all employees were
considered “in the course of regular occupation from the time they leave the United
States until their return”; and the employer provided neither housing nor recreational
activities for its employees. Id. at 3063-64. The Court further observed that the
9
accident occurred during an outing to a lake located only 30 miles from the employer’s
job site and, therefore, “[i]t was reasonable to conclude that recreational activities
contributed to a higher efficiency of the employer’s work and that when conducted in the
restricted area of employment, on a work day, so to speak, and in a manner not
prohibited by the employer, such activity was an incident of the employment.” Id. at
3064 (internal quotation marks and citation omitted).
In Jones, the court determined that “review of the conditions and obligations of
Jones’s employment for the KBR Defendants in Iraq, [makes] clear that they did not
create a zone of special danger, in the context of workers’ compensation, out of which
her alleged injuries—sexual harassment and sexual assault—arose.” 791 F. Supp. 2d
at 584. The court acknowledged that although Jones’s employment agreement
“explicitly outlines some risks of employment overseas, such as terrorism, war,
rebellion, labor strike or unrest, civil strife, and capture,” the employer specifically
included a prohibition on sexual harassment in its standards for personal conduct. Id.
This Court is aware of no federal case discussing whether an employee remains
in the zone of special danger for injuries sustained following the termination of
employment. Cf. Kalama Svcs., Inc. v. Director, Office of Workers’ Compensation
Programs, 354 F.3d 1085, 1093 (9th Cir. 2004) (employee fired three months after
injury may maintain a workers’ compensation claim under the LHWCA). Again citing to
an administrative decision, Exelis argues that the DBA “covers injuries sustained after
employment ends but while an employee is still in the zone of danger.” Okeh v. Serv.
Emps. Int’l, Inc., Case No. 2013-LDA-111, at 19-20 (Dep’t of Labor Apr. 21, 2014);
10
(Doc. # 126-1). While this may be true in some cases, the operative inquiry requires
courts to focus on whether the injury is related to the conditions and obligations of the
employment. See Jones, 791 F. Supp. 2d at 584. Okeh confirms, rather than
undermines this conclusion. In Okeh, the administrative judge determined that although
the claimant’s employment had been terminated at the time of his injury, it “flowed
directly from his employment in Iraq” because the employer was required to transport
him back to the United States and he was injured during his convoy to the airport. Case
No. 2013-LDA-111, at 19-20.
In the instant case, Exelis states simply, “Employment termination, questions
about ability to evacuate, and loss of company housing after demobilizing arose from
the zone of danger created by Plaintiff’s employment in Afghanistan.” (Doc. # 126 at
15.) The Court agrees that Marshall’s loss of housing and the requirement that she
immediately leave Bagram arise from the obligations and conditions of her employment.
Therefore, to the extent Marshall asserts these facts as evidence of an injury that forms
the basis of her outrageous conduct claim, the Court determines that it falls within the
ambit of the DBA and is preempted. However, there are disputed issues of material fact
relating to whether Lindloff and Bailey attempted to obtain Marshall’s medical records
after she provided documentation that she was placed on bed rest in order to evacuate
her from Bagram and, thus, bring that conduct within the zone of special danger
because it relates to the obligations and conditions of her employment. Thus, the Court
reserves ruling on this issue until evidence is presented at trial. 4
4
At that time, the Court will likely ask the jury, via special interrogatory, whether Lindloff and
11
b.
Merits
Exelis contends that Marshall’s outrageous conduct claim fails as a matter of law
because she has not alleged conduct that is sufficiently “outrageous.” See Coors
Brewing Co. v. Floyd, 978 P.2d 663, 665-66 (Colo. 1999) (internal quotation marks
omitted) (“Before permitting a plaintiff to present a claim for outrageous conduct to the
jury, the trial court must initially rule on the threshold issue of whether the plaintiff’s
allegations of outrageous conduct are sufficiently outrageous as a matter of law . . .
[i.e.,] whether reasonable persons could differ on the question.”) Specifically, Marshall
must show that Exelis’s conduct here was “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.” Id. at 666. To survive
summary judgment on this claim, Marshall must present evidence “that the defendants
engaged in outrageous conduct with the specific intent of causing severe emotional
distress or that the defendants acted recklessly with the knowledge that there was a
substantial probability that their conduct would cause severe emotional distress.”
Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 883 (Colo. 1994).
Exelis’s argument—that Lindloff and Bailey’s attempt to obtain Marshall’s medical
information was not actually “outrageous”—is, of course, premised on the view that they
did so solely because Exelis was responsible for evacuating her from Bagram following
her termination and they sought to obtain information related to her ability to evacuate.
Bailey sought information to safely evacuate Marshall or for an improper purpose. Therefore,
the parties should be prepared to submit jury instructions and verdict forms with this issue in
mind.
12
The Court, however, concludes that a reasonable juror could determine, upon finding
S3 Medical Clinic staff more credible than Lindloff or Bailey, that it is beyond the bounds
of decency for an employer to attempt to obtain medical information about an employee
in order to verify whether she was appropriately placed on medical leave to provide a
post-hoc justification for the manner and timing of her termination.
2.
Outrageous Conduct Claim Against Lindloff
Likewise, Lindloff contends that the allegations against him are not sufficiently
outrageous and, therefore, fail as a matter of law. Even if the jury were to conclude that
Lindloff’s decision to fire Marshall was motivated by racial animus, that, alone, is
insufficient to make her termination outrageous. See Grandchamp v. United Air Lines,
Inc., 854 F.2d 381, 384 (10th Cir. 1988). Instead, the manner of the termination must
itself be outrageous. Id. The Court agrees with Lindloff that terminating Marshall’s
employment even though she was on medical leave is not sufficiently outrageous. See
Brown v. Progressive Cas. Ins. Co., Civ. Action No. 90-F-1428, 1991 U.S. Dist. LEXIS
17812, *1-2, 13-14 (D. Colo. June 21, 1991). Nor is terminating her employment even
though she would lose her housing and dining privileges sufficiently outrageous.
Terminating employment will always include adverse consequences, but outrageous
conduct claims are “reserved for those truly exceptional cases.” Ayon v. Kent Denver
Sch., No. 12-CV-2546-WJM-CBS, 2013 WL 1786978, at *4 (D. Colo. Apr. 26, 2013).
However, as with the claim against Exelis, it is for the jury to resolve factual disputes
regarding allegations that Lindloff attempted to improperly procure Marshall’s medical
records.
13
3.
Intentional Interference with Contract
The tort of intentional interference with contractual relations is defined as:
One who intentionally and improperly interferes with the performance of a
contract . . . between another and a third person by inducing or otherwise
causing the third person not to perform the contract, is subject to liability to
the other for the pecuniary loss resulting to the other from the failure of the
third person to perform the contract.
Memorial Gardens, Inc. v. Olympian Sales & Mgmt. Consultants, Inc., 690 P.2d 207,
210 (Colo. 1984) (citing Restatement (Second) of Torts § 766 (1979)). Thus, to be liable
for intentional interference with contract, a defendant must (1) be aware of a contract
between two parties, (2) intend that one of the parties breach the contract, (3) and
induce the party to breach or make it impossible for the party to perform the contract.”
Krystkowiak v. W.O. Brisben Cos., Inc., 90 P.3d 859, 871 (Colo. 2004) (en banc). In
addition, the defendant must have acted intentionally and improperly in causing the
result. Id. (citing Trimble v. City & Cnty. of Denver, 697 P.2d 716, 726 (Colo. 1985),
superseded by statute, C.R.S. § 24-10-105, as recognized in Colorado Dep’t of Transp.
v. Brown Grp. Retail, Inc., 182 P.3d 687 (Colo. 2008)).
Lindloff focuses on the third element, arguing that Marshall cannot establish that
he acted improperly because she cannot prove that he was “motivated solely by the
desire to harm [her] or to interfere in the contractual relations between the parties.”
(Doc. # 79 at 13) (citing W.O. Brisben Companies, Inc. v. Krystkowiak, 66 P.3d 133, 137
(Colo. App. 2002) aff’d on other grounds, 90 P.3d 859 (Colo. 2004)). Lindloff argues
that Marshall behaved unprofessionally, which serves as an independent basis for her
termination. However, the facts Lindloff points to simply rebut Marshall’s claim that her
14
termination was precipitated by alleged improper and intentional actions. Therefore,
she has provided sufficient evidence to raise genuine issues of fact that are material to
whether Lindloff acted intentionally and improperly in terminating her employment. See
Ryskin v. Banner Health, Inc., No. 09-CV-01864-MEH-KMT, 2010 WL 4818062, at *12
(D. Colo. Nov. 9, 2010).
B.
FEDERAL LAW CLAIMS—RACE DISCRIMINATION AND RETALIATION
CLAIMS
The Court first considers Exelis’s argument that some of the allegedly
discriminatory acts should be excluded from consideration because they are timebarred. An employee wishing to challenge an employment practice under Title VII must
first Afile@ a Acharge@ of discrimination with the EEOC. Montes v. Vail Clinic, Inc., 497
F.3d 1160, 1163 (10th Cir. 2007) (citing 42 U.S.C. § 2000e-5(e)(1)). Although the
applicable deadline for filing a charge with the EEOC depends on a variety of
circumstances, Athe latest possible filing date is 300 days from the last allegedly
unlawful act.@ Id. If the employee does not submit a timely EEOC charge, he or she
may not proceed to court. Id.; see also Semsroth v. City of Witchita, 304 F. App=x 707,
717 (10th Cir. 2008) (unpublished) (affirming the district court’s exclusion of conduct
that occurred outside the 300-day window). It is Marshall’s burden to show that her
charge was timely. Montes, 497 F.3d at 1168. In this case, Marshall filed her charge of
discrimination with the EEOC on August 29, 2012. (Doc. # 78-5.) Thus, any allegedly
discriminatory acts that occurred prior to November 2, 2011 are time-barred.
In her Response, Marshall states, “[E]ven if some discriminatory acts fall outside
the covered period, failing to exhaust administrative remedies does not bar an
15
employee from using the prior acts as background evidence in support of a timely
claim.” (Doc. # 116 at 40) (internal quotation marks omitted). While this may be true,
Marshall has not met her burden of demonstrating the pre-November 2, 2011 acts are
not time-barred. As such, any claims based on discriminatory acts that occurred prior to
that date are time-barred and will not be allowed. Whether the prior acts can be
introduced at trial as “background evidence” in support of a timely claim will depend on
whether sufficient evidentiary foundation can be laid. This is a matter that will need to
be addressed in a motion in limine.
Exelis also argues that Marshall failed to administratively exhaust claims based
on conduct that was omitted from her charge. Specifically, Exelis argues that Marshall’s
claims that she received a final written warning on November 8, 2011, and that Exelis
requested confidential information from the S3 Medical Clinic are not reasonably related
to the allegations in her EEOC charge. 5 (Doc. # 78 at 14.)
When an employee seeks judicial relief for incidents not listed in his [or
her] original charge to the EEOC, the judicial complaint nevertheless may
encompass any discrimination like or reasonably related to the allegations
of the EEOC charge, including new acts occurring during the pendency of
the charge before the EEOC. A claim is considered reasonably related
when the conduct complained of would fall within the scope of the
administrative investigation which can reasonably be expected to grow out
of the charge that was made. This more lenient pleading standard
contemplates the fact that administrative charges of unlawful employment
practices are regularly filled out by employees who do not have the benefit
of counsel. Thus, precise pleading is not required for Title VII purposes.
5
Exelis also argues that Marshall’s reassignment to the South Node is not reasonably related to
the allegations in her EEOC charge. However, upon review of the response briefs and Final
Pretrial Order, it does not appear that Marshall brings a claim that this reassignment was racially
discriminatory or in retaliation for her claims of race discrimination. Therefore, the Court
expresses no opinion on whether it reasonably relates to her EEOC charge claims.
16
Mitchell v. City & Cnty. of Denver, 112 F. App’x 662, 667 (10th Cir. 2004) (internal
citations, quotations, and alterations omitted).
In her EEOC charge, Marshall alleges, “On or about November 8, 2011, I
reported to the Project Manager that the Country Manager was racially discriminating
against me.” (Doc. # 78-5.) This allegation is related to her final written warning, in
which Lindloff reprimanded Marshall for accusing him of “being a racist.” (Doc. # 78-4.)
Marshall also alleges, “During the time period from November 9, 2011 through
November 17, 2011, I was put on bed rest based on a health condition which remains
unresolved. During this time period while under bed rest, I was improperly ordered to
meet with management. . . . On or about November 11, 2011, I was discharged.” (Doc.
# 78-5.) Reading Marshall’s EEOC charge liberally, the investigation of these claims
would reasonably encompass her allegations that Exelis improperly requested her
medication information from the S3 Medical Clinic to provide a post-hoc justification for
her discharge. Accordingly, the Court finds that Marshall has administratively
exhausted these claims.
However, there are genuine disputes of material facts relating to Marshall’s
claims of race discrimination and retaliation. Therefore, the Court limits Marshall’s
claims as discussed above and denies Exelis’s motion in all other respects.
IV. CONCLUSION
For the reasons provided above, the Court GRANTS IN PART AND DENIES IN
PART Exelis’s Motion for Summary Judgment (Doc. # 78) as set forth in this order.
Specifically, it is ORDERED that
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1. There are genuine disputes of material fact regarding Marshall’s
outrageous conduct claim based on allegations that Exelis attempted
to improperly obtain her medical information;
2. Marshall’s race discrimination and retaliation claims based on preNovember 2, 2011 conduct are time barred;
3. There are genuine disputes of material fact regarding Marshall’s race
discrimination and retaliation claims for post-November 2, 2011
conduct;
It is FURTHER ORDERED that Lindloff’s Motion for Summary Judgment (Doc. #
79) is GRANTED IN PART AND DENIED IN PART as set forth in this order.
Specifically, it is ORDERED that
1. Marshall’s outrageous conduct claim is limited to allegations that
Lindloff attempted to improperly obtain her medical information;
2. There are genuine disputes of material fact regarding Marshall’s
intentional interference with contract claim against Lindloff;
DATED: March 26, 2015
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
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