Anderson v. Guaranty Bank and Trust Co.
Filing
44
ORDER AND OPINION re: 32 MOTION for Summary Judgment filed by Guaranty Bank and Trust Co., by Magistrate Judge Nina Y. Wang on 10/09/2015. (Attachments: # 1 Attachment 1, # 2 Attachment 2) (slibi, )
Page 1
Not Reported in F.Supp.2d, 2013 WL 4718928 (D.Colo.)
(Cite as: 2013 WL 4718928 (D.Colo.))
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Alan C. LAMMLE, Plaintiff,
v.
BALL AEROSPACE & TECHNOLOGIES CORPORATION, Defendant.
Civil Action No. 11–cv–03248–MSK–MJW.
Sept. 1, 2013.
Alan C. Lammle, Parker, CO, pro se.
Kelly K. Robinson, Matthew M. Morrison, Sherman
& Howard, L.L.C., Denver, CO, for Defendant.
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT
MARCIA S. KRIEGER, Chief Judge.
*1 THIS MATTER comes before the Court on the
Defendant Ball Aerospace & Technologies Corporation's Motion for Summary Judgment (# 116). The pro
se Plaintiff Alan C. Lammle has not responded to the
motion.FN1
FN1. Mr. Lammle was given numerous opportunities to file a response. The motion for
summary judgment was filed on December
17, 2012. On February 12, 2013, the Court
granted (# 133) Mr. Lammle's first request
for more time to respond. The Court specified that no further extensions would be
granted. On February 21, 2013, Mr. Lammle
filed a second motion for extension of time (#
138), and on March 21, 2013, he filed a third
motion for an extension of time to “respond
to existing motions” (# 145). By text order on
April 2, 2013, the Court granted in part (#
146) Mr. Lammle's requests for more time.
The Court ordered that Mr. Lammle had 14
days in which to comply with any pending
deadline. Still, no response was filed. Despite
having nearly four months to respond to the
motion, Mr. Lammle has failed to do so. The
Court therefore considers the motion without
a response.
I. Material Facts
Where a party fails to respond to a motion for
summary judgment, the Court does not reflexively
grant relief to the movant. Rather, it must examine the
movant's submissions to determine whether the movant has met its burden of demonstrating that no material issues of fact remain for trial. Reed v. Bennett,
312 F.3d 1190, 1194–95 (10th Cir.2002);
Fed.R.Civ.P. 56(e)(3). In doing so, however, the Court
deems Mr. Lammle to have conceded the truth of any
properly-supported facts alleged by the Defendant.
Fed.R.Civ.P. 56(e)(2). With that standard in mind, the
Court turns to the facts as asserted in the Defendant's
motion.
In 2005, Mr. Lammle was hired by Ball Aerospace & Technologies Corporation (Ball), an information technology company, as a computer technician
in the Information Management (IM) Department. In
that position, Mr. Lammle served as the dedicated
technician for engineers working at Ball. He was responsible for servicing and repairing their computers,
troubleshooting software problems, and performing
service calls to the engineers.
In June 2008, Mr. Lammle was hospitalized with
pancreatitis. Due to his health problems, Mr. Lammle
took a leave of absence from work until March 3,
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
Not Reported in F.Supp.2d, 2013 WL 4718928 (D.Colo.)
(Cite as: 2013 WL 4718928 (D.Colo.))
2009. Upon returning to work, Mr. Lammle discovered that in his absence, the IM Department had been
reorganized. Mr. Lammle was told that he would no
longer be providing field support to the engineers.
Instead, he was assigned to a service desk position. At
the service desk, Mr. Lammle was responsible for
providing remote computer service to all customers.
Mr. Lammle continued to receive the same salary and
benefits as he did before his leave of absence.
Shortly after returning to work, Mr. Lammle
complained to his supervisors that he had been demoted. He also complained that he was not being
provided with sufficient training for his new position.
In an e-mail sent to the Human Resources manager,
Toya Specman, Mr. Lammle stated that he thought he
would eventually be laid off because of his age and his
“perceived disability.” About a week later, Mr.
Lammle's wife and former attorney, Amy Jane Simmons, sent a letter to Ball's legal department, alleging
that Mr. Lammle had been falsely accused of sleeping
on the job and that the accusation was part of a scheme
intended to bring about Mr. Lammle's termination. On
March 27, 2009, Ms. Simmons sent another letter to
Ball's legal department. Ms. Simmons alleged that Mr.
Lammle was suffering “harassment” because his pay
was not directly deposited into his bank account that
afternoon.
On March 31, 2009, Mr. Lammle filed a Charge
of Discrimination with the Equal Employment Opportunity Commission. In his Charge, Mr. Lammle
alleged that he had been “discriminated against based
on [his] age, 47, in violation of the [ADEA] and based
on a perceived disability ... in violation of the ADA.”
Specifically, he alleged that after his “demotion,” he
was “subjected to harassment and adverse terms and
conditions of employment when [Ball] failed to give
[him] appropriate training, and access to tools needed
to perform the duties of [his] reassigned position.” He
further alleged that he was “issued a fabricated verbal
warning [for sleeping on the job] under threat of termination on March 20, 2009.”
*2 In April, Mr. Lammle sent another e-mail to
Ms. Speckman, raising additional allegations of harassment. In addition his allegations of being denied
training and not being paid properly, Mr. Lammle
alleged that another service desk employee appeared
to have a web camera directed at him, so that “[he]
could be fired for sleeping on the job” if he even
“blinks or closes his eyes.” Finally, in May, Ms.
Simmons wrote another letter to Ball's legal department. She alleged that not only was Mr. Lammle being
monitored by web cam and remote access of his
desktop, but that someone was going through his
personal lunchbox. She alleged that someone had
stolen a used insulin syringe out of his lunchbox. Ms.
Simmons suggested that perhaps the syringe was
taken so that it could be tested for other substances and
used “to fabricate another reason to terminate [Mr.
Lammle].”
In June 2009, Mr. Lammle was hospitalized
again. After he was discharged, Mr. Lammle did not
report back to work. Instead, he began a second leave
of absence. When he returned to work on December 1,
2010, he was informed that his position had been
filled.
Mr. Lammle received a right to sue letter from the
EEOC in September 2011. He then commenced this
action. As narrowed by earlier proceedings, Mr.
Lammle has three remaining claims in this case: (1)
disability discrimination under the Americans with
Disabilities Act (ADA), (2) age discrimination under
the Age Discrimination in Employment Act (ADEA),
and (3) common law intentional infliction of emotional distress. Ball seeks summary judgment on each
claim.
II. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure
facilitates the entry of a judgment only if no trial is
necessary. See White v. York Intern. Corp., 45 F.3d
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
Not Reported in F.Supp.2d, 2013 WL 4718928 (D.Colo.)
(Cite as: 2013 WL 4718928 (D.Colo.))
357, 360 (10th Cir.1995). Summary adjudication is
authorized when there is no genuine dispute as to any
material fact and a party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). Substantive law
governs what facts are material and what issues must
be determined. It also specifies the elements that must
be proved for a given claim or defense, sets the
standard of proof, and identifies the party with the
burden of proof. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); Kaiser–Francis Oil Co. v.
Producer's Gas Co., 870 F.2d 563, 565 (10th
Cir.1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented
in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could
enter for either party. See Anderson, 477 U.S. at 248.
When considering a summary judgment motion, a
court views all evidence in the light most favorable to
the non-moving party, thereby favoring the right to a
trial. See Garrett v. Hewlett Packard Co., 305 F.3d
1210, 1213 (10th Cir.2002).
If the movant has the burden of proof on a claim
or defense, the movant must establish every element
of its claim or defense by sufficient, competent evidence. See Fed.R.Civ.P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary
judgment the responding party must present sufficient,
competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin
Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991); Perry
v. Woodward, 199 F.3d 1126, 1131 (10th Cir.1999). If
there is a genuine dispute as to a material fact, a trial is
required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies
the law to the undisputed facts and enters judgment.
*3 If the moving party does not have the burden
of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that
the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence
to establish a prima facie claim or defense, a trial is
required. If the respondent fails to produce sufficient
competent evidence to establish its claim or defense,
then the movant is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986).
III. Analysis
A. Claims under the ADA and ADEA
Mr. Lammle presents two theories of recovery for
each of his statutory claims. First, he claims that he
was subjected to disparate treatment because of his
age and/or perceived disability when he was reassigned to a service desk position and was not provided
training related to his new position.FN2 Second, Mr.
Lammle claims that since he returned to work, he was
repeatedly harassed and subjected to a hostile work
environment because of his age and/or perceived
disability, in violation of the statutes.
FN2. Mr. Lammle's statutory claims are limited by the scope of his allegations in the
charge of discrimination submitted to the
EEOC. See MacKenzie v. City & County of
Denver, 414 F.3d 1266, 1274 (10th
Cir.2005); see also Jones v. U.P.S., Inc., 502
F.3d 1176, 1186 (10th Cir.2007).
1. Disparate Treatment
Mr. Lammle claims that when he returned to work
in March 2009, he was “demoted” to an office position
and was denied training on certain software systems.
The ADA provides that “[n]o covered entity shall
discrimination against a qualified individual on the
basis of the disability in regard to job application
procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To prevail on a disparate
treatment or discrimination claim under the ADA, Mr.
Lammle must show that Ball intentionally discriminated against him for a reason prohibited by the stat-
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
Not Reported in F.Supp.2d, 2013 WL 4718928 (D.Colo.)
(Cite as: 2013 WL 4718928 (D.Colo.))
ute. Jaramillo, 427 F.3d at 1306. In so doing, Mr.
Lammle must make out a prima facie case, showing
that (1) he is a disabled person as defined by the Act;
(2) he was qualified, with or without reasonable accommodation, to perform the essential functions of the
job held or desired; and (3) his employer discriminated
against him because of his disability. See Mackenzie v.
City & Cnty. of Denver, 414 F.3d 1266, 1274 (10th
Cir.2005). To demonstrate “discrimination” under the
third element, Mr. Lammle must show that he suffered
an “adverse employment action because of the disability.” EEOC v. C.R. England, Inc., 644 F.3d 1028,
1037–38 (10th Cir.2011). Similarly, to establish a
prima facie case under the ADEA, Mr. Lammle must
prove that (1) he is a member of the class protected by
the ADEA; (2) he was qualified for the position at
issue; (3) he suffered an adverse employment action;
and (4) he was treated less favorable than others not in
the protected class. Jones, 617 F.3d at 1279.
When, as here, there is no direct evidence of discrimination, the Court applies the burden-shifting
framework outlined in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–02 (1973). The McDonnell
Douglas framework applies to Mr. Lammle's discrimination claims under both the ADA and the
ADEA. See Jaramillo v. Colo. Judicial Dep't, 427
F.3d 1303, 1306 (10th Cir.2005); Jones v. Oklahoma
City Public Schools, 617 F.3d 1273, 1278 (10th
Cir.2010). Under this framework, Mr. Lammle must
first make out a prima facie case of discrimination, as
described above. If he is successful, the burden shifts
to Ball to articulate a legitimate, nondiscriminatory
reason for its employment actions. If Ball proffers
such a reason, the burden shifts back to Mr. Lammle to
ultimately show that the stated reasons are merely
“pretextual.” McDonnell Douglas, 411 U.S. at
804–05.
*4 Assuming, without necessarily finding, that
Mr. Lammle could establish a prima facie case on the
undisputed facts here, Ball has carried its burden by
proffering a legitimate, nondiscriminatory reason for
Mr. Lammle's change in employment conditions in
March 2009—namely, that Mr. Lammle's reassignment was necessary due to the reorganization of the
IM Department. Ball proffers that the reorganization
was due to budgetary concerns and the need to create
more efficiency. It also proffers that Mr. Lammle was
not provided training on certain computer systems
because other service desk employees were already
providing support on those systems. Thus, to survive
summary judgment, Mr. Lammle must show a genuine dispute as to whether Ball's proffered reasons for
its employment decisions are pretextual. In other
words, Mr. Lammle must show that the stated reasons
are untrue, and that age and/or disability discrimination was the real reason.
An employee produces sufficient evidence of
pretext when he shows “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons”
for its actions that a reasonable fact finder could rationally find them unworthy of belief and therefore
infer that the employer did not act for the asserted
nondiscriminatory reasons. Jaramillo, 427 F.3d at
1308. The Court is mindful that when evaluating
pretext, the pertinent question is not whether the employer's proffered reasons were right, wise, or fair, but
whether the employer honestly believed those reasons
and acted in good faith upon those beliefs. Stover v.
Martinez, 382 F.3d 1064, 1076 (10th Cir.2004).
In support of their position, Ball proffered the
affidavit of Toya Speckman, its Senior Human Resources Manager. Ms. Speckman testified that in
2008, budgetary constraints required that IM Department improve its efficiency and lay off several
employees. The evidence shows that the reorganization of the IM Department resulted in greater use of
outside contractors, thereby reducing the need for
Ball's technicians to work in the field. Further, the IM
Department began delegating a higher volume of
service calls to the service desk, where computer
technicians could resolve problems remotely. Ms.
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
Not Reported in F.Supp.2d, 2013 WL 4718928 (D.Colo.)
(Cite as: 2013 WL 4718928 (D.Colo.))
Speckman testified that to implement the necessary
layoffs, the IM Department manager, John LaFalce,
conferred with the Human Resources and together
they compared each employee's skills and performance level to those possessed by other layoff candidates and Ball's operational requirements. Ms.
Speckman testified that the review identified three
candidates for layoff—Mr. Lammle was one of them.
She testified that although Ball laid off the other two
candidates, it did not lay off Mr. Lammle. Ball opted
instead to reassess its needs when Mr. Lammle returned from his leave of absence. Ms. Speckman
stated that the individuals who were laid off were 28
and 30 years old, and neither was disabled. The evidence shows that although Mr. Lammle previously
provided dedicated support to Ball's engineers, after
the reorganization, Ball employees no longer served in
that capacity. Ms. Speckman testified that when Mr.
Lammle returned to work in March 2009, no technician positions involving field work were available.
She stated that because Ball needed a service desk
position filled when Mr. Lammle returned, he was
assigned to that position. Ms. Speckman testified that
there were at least two other individuals who were
formerly computer technicians who were assigned to
the service desk during the reorganization. One of
those individuals was 54 years old, and the other was
36 years old; neither of them was disabled.
*5 The evidence also shows that Ms. Speckman
explained to Mr. Lammle that he had not received
training on the “IFS” computer system because another service desk employee was already providing
assistance on that system. During Mr. Lammle's performance review in June 2009, he was informed on
how to access free online training and given suggestions for ways that he could increase his knowledge
base and advance his career. Indeed, Mr. Lammle
admits that he eventually did receive extensive training related to his position at the service desk.
Having reviewed the record, the Court finds that
there is nothing to support an inference that Ball's
proffered reasons for Mr. Lammle's reassignment and
any denial of training are unworthy of belief. There is
nothing implausible, inconsistent, or contradictory
about Ball's reasons for its employment decisions.
Rather, it appears that the decision-makers at Ball
made choices that they determined were in the best
interest of the company. Accordingly, the Court finds
that nothing in the record that creates a genuine dispute of fact as to whether Ball's proffered reasons for
changes in his employment were pretextual. Thus,
Ball is entitled to summary judgment on Mr. Lammle's
claims.
2. Hostile Work Environment
Mr. Lammle claims that, beginning in March
2009 when he returned to work, he was subjected to
harassment. Ball moves for judgment in its favor on
this claim, arguing that Mr. Lammle cannot prove that
he was subjected to severe or pervasive harassment
that altered the conditions of his employment, nor can
he prove that the alleged harassment occurred because
of his age or disability.
For a hostile environment claim to survive summary judgment, the plaintiff must show that a rational
jury could find that the workplace was permeated with
discriminatory intimidation, ridicule, and insult that
were sufficiently severe or pervasive to alter the terms,
conditions, or privileges of employment, and the harassment stemmed from age- or disability-related animus. See Mackenzie, 414 F.3d at 1280; Lanman v.
Johnson Cnty., Kansas, 393 F.3d 1151, 1155 (10th
Cir.2004). To evaluate whether a working environment is sufficiently hostile or abusive, the Court examines the totality of the circumstances, including the
frequency of the conduct, the severity of the conduct,
whether the conduct was physically threatening or
humiliating or a mere offensive utterance, and whether
the conduct unreasonably interfered with the employee's work performance. Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 23 (1993). Additionally, the environment must be both subjectively and objectively
hostile. Id.
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 6
Not Reported in F.Supp.2d, 2013 WL 4718928 (D.Colo.)
(Cite as: 2013 WL 4718928 (D.Colo.))
Applying these principles, the Court concludes
that the record falls far short of showing age- or disability-related harassment. Several of Mr. Lammle
claims of harassment relate to the employment decisions made by Ball, such as the reassignment and
denial of training. These decisions cannot be considered “harassment” because they were not undertaken
for the purpose of intimidation, ridicule, or insult. Mr.
Lammle also alleges that (1) he was “falsely accused”
of sleeping on the job, (2) a webcam allegedly was
used to spy on him, (3) he was allegedly yelled at on
two occasions by his manager, (3) he did not receive
his direct deposit on time, and (4) someone allegedly
stole a used syringe from his lunchbox. Mr. Lammle
has not come forth with any evidence to establish the
truth of each of these allegations. Assuming he could
do so, and assuming that these incidents could be
considered forms of harassment, there is simply
nothing in the record to support an inference that what
happened to Mr. Lammle was because of his age or a
perceived disability. Accordingly, the Court finds that
there is no genuine dispute of fact with regard to Mr.
Lammle's hostile work environment claims under the
ADA and ADEA, and Ball is entitled to judgment on
these claims.
B. Intentional Infliction of Emotional Distress
*6 Finally, Mr. Lammle claims that he suffered
severe emotional distress as a result of the “comments,
actions, and inactions of [Ball].” He alleges that Ball
failed to “provide any relief or assistance to [him,]
severely altered [his] employment circumstances and
created a hostile employment environment.”
Under Colorado law, a plaintiff may recover for
the tort of intentional infliction of emotional distress
(otherwise known as “outrageous conduct”) if the
plaintiff proves that (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 to suffer
severe emotional distress. Han Ye Lee v. Colo. Times,
Inc., 222 P.3d 957, 966–67 (Colo.App.2009). Ball
argues that Mr. Lammle cannot prove any of these
elements.
Before permitting a plaintiff to present a claim for
outrageous conduct to a jury, however, the Court must
rule on the threshold issue of whether the plaintiff has
alleged conduct that is outrageous as a matter of law.
Coors Brewing Co. v. Floyd, 978 P.2d 663 (Colo.1999). A claim for outrageous conduct contemplates only acts that are “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.”
Destefano v. Grabrian, 762 P.2d 275, 286 (Colo.1988).
Here, it appears Mr. Lammle alleges that Ball
engaged in outrageous conduct when it took certain
employment actions against him, and when it failed to
prevent the “discrimination” from occurring. To the
extent Mr. Lammle relies on the same conduct that
formed the basis of his statutory claims, that conduct
cannot be used as the basis of his claim for intentional
infliction of emotional distress. See Emerson c.
Wembley USA Inc., 433 F.Supp .2d 1200, 1228
(D.Colo.2006); see also Katz v. City of Aurora, 85
F.Supp.2d 1012, 1021 (D.Colo.2000) (noting under
Colorado law, where the allegations forming the basis
of a claim for outrageous conduct are the same as
those forming the basis for a claim of discrimination,
and nothing more, they fail to state an independently
cognizable claim). Disregarding Mr. Lammle's allegations that form the basis of his statutory claims, his
only allegations as to his outrageous conduct claim are
that Ball failed to “assist and/or attempt to rectify the
discrimination.” As to those allegations, the Court
finds that they are not sufficiently outrageous to support a claim for outrageous conduct. Indeed, as noted
above, Mr. Lammle has failed to establish that he was
subjected to discrimination. Accordingly, the Court
finds that Ball is entitled to judgment on this claim.
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 7
Not Reported in F.Supp.2d, 2013 WL 4718928 (D.Colo.)
(Cite as: 2013 WL 4718928 (D.Colo.))
IV. Conclusion
For the forgoing reasons, the Defendant's Motion
for Summary Judgment (# 116) is GRANTED.
Judgment shall enter in favor of the Defendant on all
of the Plaintiff's claims, and the Clerk of the Court
shall close this case.
D.Colo.,2013.
Lammle v. Ball Aerospace & Technologies Corp.
Not Reported in F.Supp.2d, 2013 WL 4718928
(D.Colo.)
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?