Christen-Loper v. Bret's Electric, LLC
Filing
54
OPINION AND ORDER granting in part and denying in part 44 Report and Recommendations; denying 8 Motion to Dismiss for Failure to State a Claim; SUSTAINS plaintiffs objections to the R&R 46 ; REJECTS defendants objections to the R&R 47 , ORDERED by Judge Raymond P. Moore on 03/29/2016.(cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Case No. 15-cv-00496-RM-KMT
NANCI CHRISTEN-LOPER,
Plaintiff,
v.
BRET’S ELECTRIC, LLC,
Defendant.
______________________________________________________________________________
OPINION AND ORDER
______________________________________________________________________________
On March 9, 2015, plaintiff Nanci Christen-Loper (“plaintiff”) filed a Complaint against
Bret’s Electric, LLC (“defendant”), raising the following claims for relief: (1) disability
discrimination under The Americans with Disabilities Act (“the ADA”); (2) disability discrimination
under the Colorado Anti-Discrimination Act (“the CADA”); (3) wrongful discharge in violation of
public policy; and (4) intentional infliction of emotional distress. (ECF No. 1 at ¶¶ 24-50.)
On May 18, 2015, defendant filed a partial motion to dismiss the third and fourth claims of
the complaint (“the motion to dismiss”), pursuant to Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”), for
failure to state a claim. (ECF No. 8.) Plaintiff filed a response in opposition to the motion to dismiss
(ECF No. 16), and defendant filed a reply (ECF No. 29).
After referral, U.S. Magistrate
Judge Kathleen M. Tafoya entered a report and recommendation (“R&R”), recommending that the
motion to dismiss be granted in part and denied in part. (ECF Nos. 20, 44.) Both parties then filed
objections to the R&R, as well as responses to the objections. (ECF Nos. 46, 47, 49, 52.) The
motion to dismiss and R&R are now before the Court.
I.
Legal Standard
In evaluating a motion to dismiss under Rule 12(b)(6), a court must accept as true all well-
pleaded factual allegations in the complaint, view those allegations in the light most favorable to the
non-moving party, and draw all reasonable inferences in the plaintiff’s favor. Brokers’ Choice of
America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135-36 (10th Cir. 2014); Mink v. Knox, 613
F.3d 995, 1000 (10th Cir. 2010). In doing so, “a court may look both to the complaint itself and to
any documents attached as exhibits to the complaint.” Oxendine v. Kaplan, 241 F.3d 1272, 1275
(10th Cir. 2001). In the complaint, the plaintiff must allege a “plausible” entitlement to relief. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556, 127 S.Ct. 1955 (2007). A complaint warrants
dismissal if it fails “in toto to render [plaintiff’s] entitlement to relief plausible.” Id. at 569 n.14.
II.
Review of a Magistrate Judge’s Report and Recommendation
A district court may refer pending motions to a magistrate judge for entry of a report and
recommendation. 28 U.S.C. §636(b)(1)(B); Fed. R. Civ. P. 72(b). The court is free to accept, reject,
or modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C.
§636(b)(1); Fed. R. Civ. P. 72(b)(3). A party is entitled to a de novo review of those portions of the
report and recommendation to which specific objection is made. See Fed.R.Civ.P. 72(b)(2), (3).
“[O]bjections to the magistrate judge’s report and recommendation must be both timely and specific
to preserve an issue for de novo review by the district court or for appellate review.” United States
v. 2121 E. 30 St., 73 F.3d 1057, 1060 (10th Cir. 1996). Furthermore, arguments not raised before
the magistrate judge need not be considered by this Court. Marshall v. Chater, 75 F.3d 1421, 1426
2
(10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.”).
III.
Factual Background1
The Court assumes the following factual allegations from the complaint to be true. Plaintiff
worked for defendant as a construction project coordinator from May 2011 until December 2013.
(ECF No. 1 at ¶ 6.) In plaintiff’s last performance evaluation, on November 11, 2013, she was stated
to have met or partially met expectations in every evaluated category. (Id. at ¶¶ 9-10.)
Plaintiff suffers from bi-polar disorder. (Id. at ¶ 11.) Plaintiff was able to manage her
condition by meeting regularly with her doctor. Plaintiff informed defendant of her condition and
her need to take time off from work to meet with her doctor. (Id.)
On October 22, 2013, plaintiff was involved in a car accident that required her admission into
an emergency room. (Id. at ¶ 12.) On November 6, 2013, a member of plaintiff’s family threatened
to kill themself. Plaintiff informed defendant of both of these events. (Id.)
On November 18, 2013, one of defendant’s owners, Brett Martin (“Brett”), threw papers at
plaintiff, telling her to “Take the God damn thing.” (Id. at ¶ 13.) On November 20, 2013, Brett
stood over plaintiff and yelled, hit a wall, and shouted obscenities. (Id.) Brett’s conduct visibly
upset plaintiff, with his conduct on November 20, 2013 causing her to cry. (Id. at ¶ 14.) Defendant’s
other owner, Janet Martin (“Janet”), observed plaintiff’s distress, and told plaintiff to go home for
the day. (Id.)
1
Because the Magistrate Judge failed to set out a statement of facts in the R&R, the Court will do
so herein.
3
On November 22, 2013, plaintiff came to work in tears. (Id. at ¶ 15.) Janet told plaintiff she
could leave for the day, and plaintiff told Janet that she would be making an appointment to see her
doctor as soon as possible. (Id.) Plaintiff secured an appointment with her doctor for November 27,
2013, and, the day before the appointment, plaintiff informed Janet about the same and apologized
for the short notice. (Id. at ¶ 16.) Plaintiff also told Janet that she needed to see the doctor in order
to have her medication changed, so she could “get back on track.” Janet replied, “No worries. Take
the day off.” (Id.)
On December 2, 2013, plaintiff requested time off for a doctor’s appointment on December
18, 2013. (Id. at ¶ 17.) On December 3, 2013, Janet denied the request, stating that plaintiff’s
appointments needed to be scheduled around her work schedule. Plaintiff replied that her request
had been made in compliance with defendant’s “time-off policy” and that she needed to see her
doctor. Plaintiff also told Janet that she would be keeping her appointment. (Id.)
On December 4, 2013, Janet wrote up plaintiff for her absences on November 22 and
November 27, 2013. (Id. at ¶ 18.) Janet stated that, in both instances, plaintiff’s absence was
unexcused. Janet also stated that the November 27, 2013 absence was not made in writing and was
made on short notice. In issuing the “write-ups,” Janet did so while another employee was in the
room, even though the write-ups implicated plaintiff’s confidential medical information. (Id.) In
response, plaintiff told Janet that defendant was required to accommodate her doctor’s appointment
under the ADA. (Id. at ¶ 20.) Janet replied that work hours were from 7:30 to 4:30 each day, and
that plaintiff was required to be at work during those times. (Id.)
On December 8, 2013, plaintiff experienced an acute activation of her bi-polar disorder,
which resulted in plaintiff being admitted to Highlands Behavioral Health Hospital and placed on
4
a 72-hour suicide watch. (Id. at ¶ 21.) That evening, plaintiff’s husband called Janet and told her
that plaintiff was in the hospital on a 72-hour watch, and that plaintiff would likely return to work
later that week. (Id. at ¶ 22.)
On December 10, 2013, through its attorney, defendant delivered a letter to plaintiff’s home,
stating that her employment was terminated. (Id. at ¶ 23.) At this time, plaintiff was still in the
hospital on a 72-hour watch. (Id.)
IV.
Discussion
A.
Claim Three—Wrongful Discharge
Defendant first moved to dismiss plaintiff’s third claim for relief. (ECF No. 8 at 2-5.)
Plaintiff’s third claim is a state law claim for wrongful discharge in violation of public policy, with
the public policy being the CADA. (ECF No. 1 at ¶¶ 42-46.) Defendant moved to dismiss this claim
on a purely legal ground; specifically, Colorado courts have barred wrongful discharge claims where
a statute provides for a wrongful discharge remedy. (See ECF No. 8 at 3.) Defendant argued that,
because plaintiff’s claim was premised on the CADA, and the CADA provides remedies for its
violation, the claim was barred. (Id. at 4-5.) In response, plaintiff argued that “controlling
precedent” from the Colorado Supreme Court defeated defendant’s argument because said precedent
established that the CADA did not preclude wrongful discharge claims, citing Brooke v. Rest. Servs.,
Inc., 906 P.2d 66 (Colo. 1995). Plaintiff also cited an opinion from this District, Kennedy v.
Colorado RS, LLC, 872 F. Supp. 2d 1146 (D. Colo. 2012), in which the court found that the CADA
did not bar a claim for wrongful discharge premised on the same statute. (See id. at 2-5.) In reply,
defendant reiterated its argument, and cited another decision from this District, Gatuma v. Encore
Electric, Inc., 2012 WL 5354932 (D. Colo. 2012), in which the court was “unconvinced” that Brooke
5
answered whether the CADA preempted claims for wrongful discharge, and found to be more
persuasive Colorado cases concluding that the statute did so preempt. Id. at *5. In the R&R, the
Magistrate Judge found in favor of defendant, agreeing with the reasoning in Gatuma that the CADA
preempts a wrongful discharge claim. (ECF No. 44 at 6.)
Because plaintiff’s wrongful discharge claim is one of state law, this Court must apply “the
substantive law of the forum state and reach the same decision … that [the] state’s highest could
would.” Lytle v. City of Haysville, Kan., 138 F.3d 857, 868 (10th Cir. 1998). Thus, the question is
whether the Colorado Supreme Court would conclude that the CADA preempts plaintiff’s wrongful
discharge claim, which is itself premised on the CADA. In her objections, plaintiff contends that
the Colorado Supreme Court answered this question in Brooke (ECF No. 3-4), while defendant
disputes the applicability of Brooke to the facts of this case (ECF No. 49 at 4-7).
In Brooke, the Colorado Supreme Court was faced with “whether the [CADA] provided the
exclusive remedy for the [plaintiff’s] tortious interference [with employment] claim.” Brooke, 906
P.2d at 68. In answering this question, the Colorado Supreme Court arguably answered a much
broader question, concluding that the CADA was not the exclusive remedy for claims of employment
discrimination covered by the CADA. See id. at 68-70 & n.4 (noting that, although the plaintiff’s
claims involved sex discrimination, its conclusion “would be applicable to the other employmentrelated discrimination prohibited by the [CADA],” which included handicap, race, creed, color, sex,
age, national origin, and ancestry).
The Brooke court began by stating that, generally, “federal and state remedies for civil rights
violations are cumulative, not exclusive,” and, absent a clearly expressed or clearly implied intent,
“the creation of a private right of action by state statute does not bar pre-existing common law rights
6
of action.” Id. at 68. As to clear expression, the Colorado Supreme Court found that no provision
of the CADA explicitly precluded common law or other statutory claims. The Colorado Supreme
Court then turned to clear implication, concluding that the CADA did not provide a “comprehensive
scheme” for addressing discrimination in the workplace, and thus, the legislature had not clearly
indicated its intent to preclude common law claims. Id. Specifically, the Colorado Supreme Court
concluded that the CADA was not a “comprehensive scheme” for two principal reasons: first, the
CADA did not provide redress for discriminatory conduct that did not effect an employee’s pay,
status, or tenure; and second, remedies under the CADA for individuals were incidental to the
CADA’s primary purpose of eliminating employers’ discriminatory practices. Id. at 68-69.
After Brooke, courts in this District have taken conflicting paths in terms of whether its
holding encompasses wrongful discharge claims premised upon the CADA such that those claims
are actionable. Down one path is Judge Daniel’s finding in Kennedy that, although wrongful
discharge claims are generally unavailable in Colorado when premised on a statute that provides a
remedy, an exception to the general rule exists for such claims when premised upon the CADA. See
Kennedy, 872 F. Supp. 2d at 1149.2 In an opposite direction is Judge Krieger’s decision in Endahl
v. Vinell Corp., 2006 WL 57496 (D. Colo. 2006), and repeated and expanded upon in Gatuma, that
the CADA bars wrongful discharge claims because the statute contains a wrongful-discharge
remedy. See Endahl, 2006 WL 57496, at * 10; Gatuma, 2012 WL 5354932, at * 5. Although this
Court takes a different path than those trodden in the above-mentioned decisions, ultimately the
2
Plaintiff cites to other decisions of this Court on the purported basis that they have followed
Kennedy or at least Kennedy’s reasoning. (See ECF No. 46 at 5.) Close examination of those cases,
however, reveals that they do not stand for the proposition to which plaintiff cites them.
7
Court reaches the same end result as the court in Gatuma: that a wrongful discharge claim premised
upon the CADA is not actionable.
The Court starts by noting the principle expressed in Brooke that, if the legislature wishes
to bar common law rights of action, it must do so explicitly or by clear implication. See Brooke, 906
P.2d at 68. Here, plaintiff’s wrongful discharge claim is a common law right of action. Martin
Marietta Corp. v. Lorenz, 823 P.2d 100, 108-112 (Colo. 1992) (acknowledging for the first time a
common law right of action for wrongful discharge when such discharge violates public policy).3
Defendant argues that the decision in Brooke is “necessarily limited” to claims of tortious
interference with employment because that was the only claim before the Colorado Supreme Court.
(ECF No. 49 at 4.) The Court disagrees. Nowhere in Brooke does the Colorado Supreme Court limit
its holding to purely claims of tortious interference. Rather, the Colorado Supreme Court
specifically states that its holding applies to common law sexual harassment claims, and then, by
footnote, expands this holding to all “other employment-related discrimination prohibited by the
[CADA].” Brooke, 906 P.2d at 68-70 & n.4. Notably, in the actual analysis part of the Colorado
Supreme Court’s opinion,4 the phrase “tortious interference” is mentioned precisely zero times.
Thus, this Court is not persuaded at all that the Colorado Supreme Court intended its decision in
Brooke to be limited purely to tortious interference claims.5
3
Defendant argues that a wrongful discharge claim was not a “pre-existing” common law right of
action when the CADA was first enacted in 1957. (ECF No. 49 at 7.) The Court discerns no relevance
from this argument given that a wrongful discharge claim was pre-existing when the legislature amended
the CADA in the years following Lorenz.
4
That is Part II.A. of the opinion.
5
As such, to the extent the court’s decision in Gatuma can be construed as finding that Brooke was
limited to tortious interference claims, this Court disagrees. While the Court notes the court’s discussion
that claims of tortious interference and wrongful discharge are qualitatively different, as discussed supra,
the Colorado Supreme Court did not limit its holding to tortious interference claims. In addition, although
8
Moving on, defendant does not contend that the CADA explicitly bars common law rights
of action. (See generally ECF Nos. 8, 29.) Thus, the question is whether the CADA clearly implies
that common law rights of action are barred. As discussed supra, the court in Brooke clearly found
that they were not. See Brooke, 906 P.2d at 68-70. Defendant argues that, since Brooke, the CADA
has been amended, and thus, at the very least, Brooke is not authoritative anymore on whether the
CADA impliedly bars common law rights of action. (ECF No. 49 at 6-7.) Given that the CADA
has been amended, and amended in a way that ameliorates one of the deficiencies relied upon in
Brooke, the Court will accept that Brooke is not authoritative on this issue. It is, however, still
persuasive authority, and the principles it enunciated—specifically, that the legislature must clearly
express its intent to bar pre-existing common law rights—remain irrespective of the amendments
made to the CADA. Thus, it is this Court’s role to predict how the Colorado Supreme Court would
resolve this question. See DP-Tek, Inc. v. AT & T Global Info. Solutions Co., 100 F.3d 828, 831
(10th Cir. 1996) (“In the absence of authoritative precedent from the [state’s highest court], however,
our job is to predict how that court would rule.”) (quotation omitted).
the Colorado Supreme Court found that the CADA did not provide redress for an employment-related
decision that did not affect an employee’s pay, status, or tenure, and that lack of a remedy has since been
ameliorated, as another court in this District has stated, the Colorado Supreme Court has “not retreated from
its conclusion that CADA does not ‘indicate a legislative intent to exclusively address the impact of
discrimination in the individual claimant.’” See Alarid v. MacLean Power, LLC, ___ F. Supp. 3d ___, 2015
WL5444295, at *4 (D. Colo. Sep. 16, 2015) (quoting Brooke, 906 P.2d at 69) (discussing the decision in
City of Colorado Springs v. Conners, 993 P.2d 1167, 1174-75 (Colo. 2000), in which the Colorado
Supreme Court reiterated that the CADA was not primarily designed to compensate individual claimants).
Finally, the Court disagrees with the statement in Gatuma that the Colorado Supreme Court “somewhat
understated the comprehensiveness of CADA’s enforcement provisions.” Gatuma, 2012 WL 5354932, at
*5 (quotation omitted). In cases such as this with pendent state claims, a court should merely apply the
substantive law of the state to those claims. See Jones v. Denver Post Corp., 203 F.3d 748, 757 (10th Cir.
2000). Here, the Colorado Supreme Court has determined that the CADA is not a comprehensive scheme.
Brooke, 906 P.2d at 68.
9
On this issue, the Court does not believe that the Colorado Supreme Court would change
course from Brooke based on the version of the CADA at issue in this case. First, the mere fact that
the CADA was amended to make clear that discriminatory harassment of employees was unlawful,
something which Brooke did not believe to be the case in the version of the CADA at issue in that
case, implies nothing with respect to whether the legislature intended the addition of that statutory
language to also bar all common law employment discrimination claims, or at least wrongful
discharge claims. Nor does the addition of harassment as an unlawful employment practice
undermine the second reason for the Colorado Supreme Court believing that the CADA did not
provide a comprehensive scheme for addressing discrimination in the workplace; specifically, the
CADA’s primary goal of eliminating discriminatory practices on a broad scale, rather than on a caseby-case basis. See Brooke, 906 P.2d at 69. Notably, the Colorado Supreme Court has continued on
its course that the CADA was not intended to exclusively address individual claimants. See City of
Colorado Springs v. Conners, 993 P.2d 1167, 1174-75 (Colo. 2000) (discussing Brooke and the antidiscrimination provisions of the CADA contained in the Colorado Civil Rights Act, and explaining
that those provisions were not primarily designed to compensate individual claimants); see also
Alarid v. MacLean Power, LLC, ___ F. Supp. 3d ___, 2015 WL5444295, at *4 (D. Colo. Sep. 16,
2015) (reaching the same conclusion with respect to a common law claim of negligent supervision).
Because defendant points the Court to no other part of the CADA that may indicate the legislature’s
implied intent to bar common law employment discrimination claims, the Court predicts that the
Colorado Supreme Court would reach the same conclusion it reached in Brooke with respect to the
version of the CADA at issue in this case.6
6
The Court notes that the remedy provision of the CADA was substantially altered by the Colorado
Legislature in 2013. Among other things, the new provision, Colo. Rev. Stat. § 24-34-405 (2013), allows
10
This may appear to be a victory for plaintiff because, if the legislature did not intend to bar
common claims in the CADA, and her claim for wrongful discharge is a common law claim, then
her claim for wrongful discharge should not be barred. This is certainly the position that plaintiff
appears to take. (See generally ECF Nos. 16, 46.) The Court, however, does not believe this to be
the case because plaintiff fails to recognize the entirety of the wrongful discharge claim upon which
she relies.
In Colorado, at common law, the general rule was that indefinite employment was terminable
at will by either party. Lorenz, 823 P.2d at 104-105. An exception to this rule, though, is for
employment terminations that violate public policy as expressed in, inter alia, statutes. Id.
at 108-109. Importantly, however, there is an exception to this exception. That is when the public
policy being relied upon itself provides a wrongful discharge remedy.7 In the context of a statute,
that basically means that, where the statute provides a wrongful discharge remedy, a claim for
wrongful discharge in violation of a statute is not available. See Gamble v. Levitz Furniture Co. of
the Midwest Inc., 759 P.2d 761, 766 (Colo. App. 1988). Plaintiff argues, though, that this remedyalready-provided exception does not apply when the statute providing the remedy is the CADA. The
Court disagrees.
an individual to obtain compensatory and punitive damages, see id. § 24-34-405(3). Whether this new
provision would result in a change to the Colorado Supreme Court’s earlier interpretation of the CADA
may be an interesting philosophical question, but that version of the statute is not before the Court. See id.
§ 24-34-405(3)(f) (providing that the remedies specified in the statute apply to causes of action accruing “on
or after January 1, 2015.”). In any event, even under this new, enhanced remedial provision, this Court
doubts whether its prediction of Colorado law would change because the amended provision expressly
states that “[n]othing in this section precludes a party from asserting any other available statutory or
common law claims.” See id. § 24-34-405(7).
7
For ease of reference, the Court will call this the “remedy-already-provided exception.”
11
In support of her argument, plaintiff cites Kennedy. In Kennedy, the court found that
“wrongful discharge claims premised on the CADA are an exception to the [remedy-alreadyprovided exception].” 872 F. Supp. 2d at 1149 (citing Brooke, 906 P.2d at 70). The court in
Kennedy also stated that Brooke “clearly addressed” whether a wrongful discharge claim can be
premised on the CADA, finding that it could. 872 F. Supp. 2d at 1149. This Court can see no such
clear addressing of the issue in Brooke. Notably, the only time that wrongful discharge is discussed
in Brooke is in the recitation of the procedural background, noting that the dismissal of such a claim
was not challenged on appeal. See Brooke, 906 P.2d at 67. Moreover, the part of Brooke to which
the court in Kennedy cites states, in pertinent part, that the CADA does not explicitly bar non-CADA
claims, does not provide a comprehensive scheme for addressing workplace discrimination, and that
the Colorado Supreme Court could not conclude that the legislature intended to preempt “the
remedies that are otherwise available to victims of sexually discriminatory conduct in the work
place.” Brooke, 906 P.2d at 70. Given that this part of the opinion does not expressly mention
claims of wrongful discharge, the Court cannot discern how the Colorado Supreme Court clearly
addressed an issue involving such claims.
Nonetheless, the Court does believe that, from the phrase “remedies that are otherwise
available,” it can be inferred that the Colorado Supreme Court meant wrongful discharge claims,
given that such claims were otherwise available to employees at the time. However, this does not
help plaintiff because, although a wrongful discharge remedy was and is available to plaintiff, that
remedy can only be available if plaintiff shows her entitlement to it. Here, plaintiff cannot do so to
the extent that her claim is premised on defendant’s violation of a statutory duty because the CADA
provides for a wrongful discharge remedy. See Colo. Rev. Stat. § 24-34-405 (1989) (providing for,
12
inter alia, back pay and reinstatement). This is entirely consistent with the Colorado Supreme
Court’s holding that the CADA does not preempt otherwise available remedies. Here, it is not the
CADA preempting plaintiff’s wrongful discharge claim, rather, the wrongful discharge claim itself,
or, more accurately, the remedy-already-provided exception is getting in the way. The fact that the
statute in question happens to be the CADA does not mean that the CADA is preempting plaintiff’s
claim, at least not to the extent that this Court reads the opinion in Brooke. Put more simply,
plaintiff’s common law remedy for wrongful discharge in violation of public policy is not “otherwise
available” pursuant to Colorado law. See Gamble, 759 P.2d at 766. For it to be available, the Court
would need to graft a third exception onto the general rule that, in Colorado, indefinite employment
is terminable at will. With nothing expressly supporting such an exception, including no case law
from the courts of Colorado, it is not this Court’s role to predict such an outcome. See DP-Tek, 100
F.3d at 831 (explaining that, in predicting state law, a court may look to: lower state court decisions
and state Supreme Court dicta; any lower court ruling in the case; the general rule on the issue; the
rule in other states; and other legal sources).
This, however, does not end the Court’s inquiry because, although not addressed by the
parties, an interesting facet to the remedy-already-provided exception has developed in Colorado
case law. Notably, the Colorado Court of Appeals has found that, even when a wrongful discharge
claim may be premised on a statutory public policy, the claim is not necessarily unavailable. For
example, in Hoyt v. Target Stores, 981 P.2d 188, 192-193 (Colo. App. 1998), the court distinguished
Gamble on the ground that, in Gamble, the statutory violation concerned “an employer’s own alleged
statutory violation,” whereas the violation in Hoyt concerned an employee’s pursuit of a statutory
right. See also Lathrop v. Entenmann’s, Inc., 770 P.2d 1367, 1372 (Colo. App. 1989) (distinguishing
13
Gamble on the same grounds). The court, thus, rejected the defendant’s argument that the statute
in question limited the plaintiff’s remedies, given that the plaintiff presented evidence that she had
pursued “an important work-related right based on a Colorado statute.” Hoyt, 981 P.2d at 193.
In this light, in Colorado, there appears to be a difference between wrongful discharge claims
premised on an employer’s violation of a statute and an employee’s exercise or pursuit of a statutory
right, with only those claims premised on the former being unavailable. As noted supra, the parties
do not address this divergence in the remedy-already-provided exception, and thus, the Court does
not have the benefit of argument as to whether plaintiff’s wrongful-discharge claim is premised on
defendant’s alleged violation of a statutory duty or plaintiff’s alleged exercise of a statutory right.
Arguably, the claim could be seen as identical to the one brought in Gamble as, in that case, the
plaintiff premised her claim on the CADA. See Gamble, 759 P.2d at 763, 766. That is essentially
the underlying argument running through the part of the motion to dismiss related to this issue. (See
ECF No. 8 at 3-5.) However, in the complaint, plaintiff alleges that she “exercised important job
related rights by requesting time off to visit her doctor, by taking intermittent and short-term medical
leave, and by invoking her statutory right to reasonable accommodation.” (ECF No. 1 at ¶ 42.)
Without the benefit of argument as to whether plaintiff did in fact exercise these rights, and,
if she did, whether they constitute the pursuit of statutory rights as in Hoyt and Lathrop, or whether
the rights pursued involve a matter of public policy, see Crawford Rehab. Servs., Inc. v. Weissman,
938 P.2d 540, 552 (Colo. 1997) (explaining that “public policy ‘must concern behavior that truly
impacts the public in order to justify interference into an employer’s business decisions.’”) (quoting
Rocky Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 525 (Colo. 1996)), the Court is not
prepared to grant the motion to dismiss as to the wrongful discharge claim (Claim Three) at this
14
juncture. As a result, plaintiff’s objection (ECF No. 46) is SUSTAINED, the R&R with respect to
the wrongful discharge claim is REJECTED, and the motion to dismiss as to that claim is DENIED.
B.
Claim Four—Intentional Infliction of Emotional Distress
The parties agree that, in Colorado, a claim for intentional infliction of emotional distress
requires a showing of, inter alia, extreme and outrageous conduct. (See ECF No. 8 at 5; ECF No. 16
at 5.) This is the only element of Claim Four that defendant challenges in its motion to dismiss.
(ECF No. 8 at 5-8.) The parties further agree that termination of employment alone cannot establish
this element, but the claim can exist in the employment context. (See ECF No. 8 at 6; ECF No. 16
at 5.) In the motion to dismiss, defendant argued that plaintiff’s allegations of being disciplined for
visiting her doctor and taking leave, terminating her while she was in hospital on suicide watch, and
yelling at her, did not rise to the level of outrageousness needed in Colorado. (ECF No. 8 at 7-8.)
In response, plaintiff argued that her allegations were sufficient because they involved conduct that
was part of a pattern, the individuals engaging in the conduct were in a position of power, and
defendant knew about her emotional vulnerability. (ECF No. 16 at 6-8.) In reply, for the first time,
defendant argued that most of the conduct alleged as being outrageous should not be considered
because it was “based on the same or similar conduct as a separate discrimination claim,” and the
remaining allegations were insufficient to state a claim. (ECF No. 29 at 11-15.) In the R&R, the
Magistrate Judge found that, based upon all of plaintiff’s allegations, a reasonable person could
conclude that defendant’s conduct exceeded the bounds of decency. (ECF No. 44 at 8.) Defendant
objects to this finding for the same reasons articulated in its reply. (See ECF No. 47.)
Here, defendant’s objections have no merit. First is defendant’s objection that the Magistrate
Judge should not have considered the majority of plaintiff’s allegations; specifically, her allegations
15
that plaintiff was disciplined for visiting her doctor and taking medical leave; and plaintiff was
terminated while in hospital on suicide watch. (ECF No. 47 at 5-6.) Defendant asserts that these
allegations should not be considered because they form the basis of plaintiff’s discrimination claims,
citing Visor v. Sprint/United Mgmt. Co., 965 F. Supp. 31, 33 (D. Colo. 1997) (ECF No. 47 at 5-6),
which itself relies upon Gard v. Teletronics Pacing Sys., Inc., 859 F. Supp. 1349 (D. Colo. 1994).8
In Gard, the court dismissed the plaintiff’s claim for outrageous conduct because “the facts
necessary to prove that claim cannot be similar or identical to, nor can they be said to share a
common nucleus of operative facts with, the federal statutory claims over which [the court has]
original jurisdiction.” 859 F. Supp. at 1354. The court reasoned that this was so because a claim
for outrageous conduct is “not some sort of froth to be lathered over other claims,” and such conduct
must consist of an extreme act or a pattern of conduct calculated to inflict severe mental suffering.
Id. Although this Court agrees with the latter contention—that, in Colorado, outrageous conduct
must be so extreme that it goes beyond all bounds of decency, see Churchey v. Adolph Coors Co.,
759 P.2d 1336, 1350 (Colo. 1988)—to the extent that Gard can be construed as eliminating facts that
pertain to the manner of defendant’s alleged discriminatory conduct or the manner in which plaintiff
was discharged, it is not consistent with Tenth Circuit precedent.
In Grandchamp v. United Air Lines, Inc., 854 F.2d 381 (10th Cir. 1988), the Tenth Circuit
Court of Appeals explained that, although an employer is not shielded from outrageous conduct
claims, its alleged conduct and/or the manner in which it allegedly discharged an employee must be
“truly outrageous.” Id. at 384. The Tenth Circuit further concluded that “a bare age discrimination
8
Defendant also cites two other cases from this District (ECF No. 47 at 5), but they also rely upon
Gard for the proposition that factual allegations for outrageous conduct claims cannot be similar to facts
used to support federal discrimination claims.
16
claim will not support a claim for intentional infliction of emotional distress under Colorado law.”
Id. at 386 (emphasis added). Instead, the “critical” focus of this inquiry looks to “the manner of the
discharge, and the employer’s conduct.” Id. at 385 (emphasis in original). This Court does not read
these conclusions as prohibiting all outrageous conduct claims that involve discrimination, but
merely those claims that rely solely upon the fact of a discriminatory termination to establish an
employer’s outrageous conduct.
As the Tenth Circuit observed, to allow a discriminatory
termination alone to constitute outrageous conduct would transform “every discrimination
claim—based on age, race, national origin, or sex—[to] also state a claim for outrageous conduct.”
Id. In other words, to allow that would be the “lather[ ]” that the court in Gard spoke about. But
that does not mean that facts related to the manner of the termination or the manner of a defendant’s
other conduct prior to and following the termination can not be considered in determining whether
that conduct is outrageous. Rather, that is precisely what the Tenth Circuit directs a court to do. See
Grandchamp, 854 F.2d at 385. Thus, given that defendant relies on Gard for the purpose of
excluding facts related to the manner of its conduct and its dismissal of plaintiff, the Court rejects
that argument as inconsistent with Circuit precedent.9
9
The Court also notes with respect to Gard that the dismissal of the outrageous conduct claim in
that case was for a procedurally different reason than the one before the Court. In Gard, the defendant
moved to dismiss all state law claims for lack of supplemental jurisdiction on the ground that the claims did
not stem from a common nucleus of facts with the plaintiff’s federal claims. 859 F. Supp. at 1350-51. The
court denied the motion in all respects, except for the outrageous conduct claim because that claim could
not “by definition” share a common nucleus of facts with the plaintiff’s federal claims. Id. at 1351, 1354.
Here, the Court is not faced with a motion to dismiss for lack of supplemental jurisdiction, and, even if the
reasoning in Gard could carry over to dismissing a claim on Rule 12(b)(6) grounds, the Court would not be
inclined to do so for the reasons discussed herein. In addition, to the extent that defendant believes that
Gard stands for the proposition that no facts related to acts of federally discriminatory conduct can support
an outrageous conduct claim, this Court disagrees. If the manner of the discriminatory conduct is so
extreme as to constitute outrageous conduct in Colorado, there is no reason why that conduct should not
also be relied upon to support a federal discrimination claim, or vice versa. If the manner of a defendant’s
conduct is so extreme as to subject it to more than one cause of action, that is more likely merely a
reflection of the outrageousness of the conduct itself. See, e.g., Gwin v. Chesrown Chevrolet, Inc., 931
17
This leads to defendant’s second objection: that the Magistrate Judge erred in finding that
its alleged conduct was sufficiently outrageous to set forth an outrageous conduct claim. (ECF
No. 47 at 6-10.) The Court finds the following alleged facts the most pertinent to this claim: (1) on
December 8, 2013, plaintiff suffered a reactivation of her bi-polar disorder that required her to be
admitted to hospital and placed on a 72-hour suicide watch; (2) plaintiff’s husband informed Janet
that plaintiff was in hospital and on suicide watch; (3) an attorney for defendant delivered a letter
to plaintiff’s home, terminating her employment; and (4) preceding plaintiff’s termination,
(a) plaintiff had informed defendant of her bi-polar disorder and her need to take time off to visit her
doctor, (b) she had sought leave to visit her doctor, and while one visit had initially been approved,
the same visit was subsequently written up as an unexcused absence and another visit was denied,
and (c) Brett stood over plaintiff, yelling at her, hitting a wall, and shouting obscenities. (See ECF
No. 1 at ¶¶ 11, 13, 16-19, 21-23.)
In Colorado, outrageous conduct occurs when “[o]ne who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to another….” Churchey, 759 P.2d
at 1350 (quotation omitted). The Colorado Supreme Court has explained that this requires conduct
“so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id.
(quotation omitted). Put another way, the conduct must lead “an average member of the community
… to exclaim, ‘Outrageous!’” Id. (quotation omitted).
At this stage of the case, where plaintiff’s factual allegations must be accepted as true and
all reasonable inferences therefrom must be construed in plaintiff’s favor, see Brokers’ Choice, 757
P.2d 466, 468-469 (Colo. App. 1996) (affirming verdicts finding liability on three discrimination claims and
a claim for outrageous conduct).
18
F.3d at 1135-36; Mink, 613 F.3d at 1000, the Court is unprepared to find that plaintiff has failed to
set forth a cognizable claim for outrageous conduct. Most notably, it can be construed and
reasonably inferred from plaintiff’s allegations that, while plaintiff was lying in a hospital bed after
suffering a severe bi-polar episode and under a suicide watch, defendant, knowing of plaintiff’s
compromised circumstances, took the opportunity to terminate plaintiff’s employment because it was
upset with her for taking time off from work to visit her doctor. So construed, the Court can find that
average members of the community would believe such conduct to be “Outrageous!” See Churchey,
759 P.2d at 1350; see also Zalnis v. Thoroughbred Datsun Car Co., 645 P.2d 292, 294 (Colo. App.
1982) (reversing grant of summary judgment as to a claim of outrageous conduct because reasonable
persons could differ whether the totality of the defendants’ conduct was outrageous where, inter alia,
the defendants may have abused a position of authority over the plaintiff and knew that the plaintiff
was “peculiarly susceptible to emotional distress by reason of some physical or mental condition”).
Moreover, the Court does not credit defendant’s argument that its decision to terminate plaintiff was
less outrageous because it delivered the termination letter when plaintiff was not at her home. (See
ECF No. 47 at 9-10.) An average member of the community could construe this, as defendant
asserts in its favor, but the same person could quite easily construe it against defendant as an attempt
to terminate plaintiff’s employment when she was at her weakest and could not defend herself.
As a result, the Court ADOPTS the recommendation of the Magistrate Judge to deny
defendant’s motion to dismiss with respect to plaintiff’s intentional infliction of emotional distress
claim (Claim Four), and REJECTS defendant’s objection to the R&R and DENIES the motion to
dismiss as to that claim.
V.
Conclusion
As set forth herein, the Court:
19
(1)
SUSTAINS plaintiff’s objections to the R&R (ECF No. 46);
(2)
REJECTS defendant’s objections to the R&R (ECF No. 47);
(3)
ADOPTS IN PART and REJECTS IN PART the R&R (ECF No. 44); and
(4)
DENIES the motion to dismiss (ECF No. 8) in full.
SO ORDERED.
DATED this 29th day of March, 2016.
BY THE COURT:
____________________________________
RAYMOND P. MOORE
United States District Judge
20
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