Christen-Loper v. Bret's Electric, LLC

Filing 55

ORDER; 32 Defendant's Motion to Amend Answer to Assert an Additional Defense is GRANTED, by Magistrate Judge Kathleen M. Tafoya on 4/4/16.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 15–cv–00496–RM–KMT
NANCI CHRISTEN-LOPER, a Colorado resident,
Plaintiff,
v.
BRET’S ELECTRIC, LLC, a Colorado corporation,
Defendant.

ORDER

This matter is before the court on “Defendant’s Motion to Amend Answer to Assert an
Additional Defense,” (Doc. No. 32), to which Plaintiff has responded (Doc. No. 37) and
Defendant has replied. (Doc. No. 43.)
BACKGROUND
Plaintiff filed her complaint on March 9, 2015. (See generally Doc. 1 “Comp.”) By this
action, Plaintiff asserts that Defendant violated the Americans with Disabilities Act, 42 U.S.C.
§12101, et seq. and the Colorado Anti-Discrimination Act (“CADA”), Colo. Rev. Stat. § 24-34301, et seq. She also asserts a claim for wrongful discharge in violation of Colorado public
policy and intentional infliction of emotional distress. Defendant seeks to add an affirmative
defense relative only to Plaintiff’s claim for intentional infliction of emotional distress.
Therefore, the court will set forth those facts pertinent to this claim.

In her Complaint, Plaintiff sets forth the following allegations: (1) Defendant disciplined
her for visiting her doctor (Comp. at 5-6, 9) ; (2) Defendant disciplined her for taking medical
leave (Id at 5-6, 9); (3) Defendant yelled at her (Id. at 4, 9); (4) On November 18, 2013, Bret
Martin, one of Defendant’s owners, threw papers at Plaintiff, telling her to “take the God damn
thing” (Id. at 4); (5) On November 20, 2013, Mr. Martin escalated a disagreement with Plaintiff
by standing over her and yelling, hitting a wall and shouting obscenities (Id. at 4); (6) Defendant
engaged in the aforementioned actions knowing that Plaintiff was suffering from bi-polar
disorder, had recently been in an automobile accident and had a family member threaten suicide
(Id. at 3, 7, 9); (7) Defendant terminated her employment when she was in the hospital on suicide
watch by having its attorney deliver a termination letter to her home (Id. at 6-7, 9).1 By this
motion, Defendant seeks to assert the defense that the Colorado Worker’s Compensation Act is
Plaintiff’s exclusive remedy for her intentional infliction of emotional distress claim.
ANALYSIS
A. Fed. R. Civ. P. 16
The Scheduling Order entered in this case set a deadline of August 3, 2015 for the parties
to amend pleadings. (Doc. No. 14 at 13.) Defendant did not file its request to amend until
December 3, 2015, but contends it did not learn of the basis for the Worker’s Compensation Act
defense until he received certain of Plaintiff’s discovery responses and took Plaintiff’s deposition
in October 2015. Because Defendant filed its motion after the deadline, the court employs a twostep analysis, first determining whether Defendant has shown good cause to modify the

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The court notes that in response to Defendant’s Motion to Dismiss, Plaintiff also relied upon
each of these allegations as supporting her intentional infliction of emotional distress claim.
(Doc. No. 16 at 7-8.)
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scheduling order under Federal Rule of Civil Procedure 16(b), and then evaluating whether
Defendant has satisfied the standard for amendment of pleadings under Federal Rule of Civil
Procedure 15(a).2 This court has stated:
Rule 16(b)'s “good cause” standard is much different than the more lenient
standard contained in Rule 15(a). Rule 16(b) does not focus on the bad faith of
the movant, or the prejudice to the opposing party. Rather, it focuses on the
diligence of the party seeking leave to modify the scheduling order to permit the
proposed amendment. Properly construed, “good cause” means that the
scheduling deadlines cannot be met despite a party’s diligent efforts. In other
words, this court may modify the schedule on a showing of good cause if [the
deadline] cannot be met despite the diligence of the party seeking the extension.
Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (citations and internal
quotations omitted).
Plaintiff does not challenge Defendant’s stated good cause for the late nature of its
request to amend its pleading. Thus, the court finds Defendant has shown good cause to amend
the scheduling order and request to amend its pleading.
B. Fed. R. Civ. P. 15
Once Defendant has shown good cause for modifying the scheduling order, it must also
satisfy the requirements of Rule 15(a) for amending the pleadings. Under Rule 15(a), a court

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The court employs this two-step analysis, notwithstanding the fact that the Tenth Circuit “has
not yet decided whether a party seeking to amend its pleadings after the scheduling order
deadline must show ‘good cause’ for the amendment under Rule 16(b) in addition to the Rule
15(a) requirements.” Strope v. Collins, 315 F. App’x 57, 62 n.4 (10th Cir. 2009) (internal
quotation omitted); cf. Bylin v. Billings, 568 F.3d 1224, 1231 n.9 (10th Cir. 2009)
(acknowledging that “[m]ost circuits have held that when a party amends a pleading after a
deadline set by a scheduling order, Rule 16 and its ‘good cause’ standard are implicated.”)
(collecting cases); Minter v. Prim Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006) (citing
SIL–FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1518–19 (10th Cir. 1990)) (explaining that the
Tenth Circuit “adopted a similar interpretation of Rule 16(b)'s ‘good cause’ requirement in the
context of counterclaims asserted after the scheduling order deadline, but has not yet done so in
the context of an amendment to the complaint”).
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should allow a party to amend its pleadings “when justice so requires.” Fed. R. Civ. P. 15(a).
The grant or denial of an opportunity to amend is within the discretion of the court, but “outright
refusal to grant the leave without any justifying reason appearing for the denial is not an exercise
of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal
Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Refusing leave to amend is generally only
justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or
dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of
amendment.” Frank U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). However, “Rule 15(a)
does not restrict a party's ability to amend its pleadings to a particular stage in the action.”
Minter, 451 F.3d at 1205.
Plaintiff’s only argument against Defendant’s request to add this defense is based upon
futility. (See generally Doc. No. 37.) The applicable standard for assessing the futility of a
proposed amendment is not entirely settled. Defendant cites to case law indicating that a
proposed amendment should be considered futile when it would not withstand a motion to
dismiss. (Doc. No. 43 at 2) (citing Corp. Stock Transfer, Inc. v. AE Biofuels, Inc., 663 F. Supp.
2d 1056, 1061 (D. Colo. 2009)). The Tenth Circuit has indicated that proposed amendments are
futile when the amended pleading “would be subject to dismissal for any reason, including that
amendment would not survive a motion for summary judgment.” Watson ex rel. Watson v.
Beckel, 242 F.3d 1237, 1240–41 (10th Cir. 2001). Notwithstanding Watson, the Tenth Circuit
has at other times indicated that “[t]he futility question is functionally equivalent to the question
of whether a complaint may be dismissed for failure to state a claim.” Gohier v. Enright, 186
F.3d 1216, 1218 (10th Cir.1999). Other courts have attempted to resolve this seeming conflict

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by considering the stage of the litigation before deciding which standard to apply. See Street v.
Curry Bd. of Cnty. Comm’rs, No. Civ. 06–0776 JB/KBM, 2008 WL 2397671, at *13 (D.N.M.
Jan. 30, 2008). Nevertheless, the court finds it need not resolve this apparent conflict because, as
discussed infra, even applying a summary judgment standard, the court finds the proposed
amendment is not futile.
Plaintiff relies on Archer v. Farmer Bros. Co., 70 P.3d 495 (Colo. App. 2002) to argue it
would be futile to allow Defendant’s proposed amendment because the “Colorado Court of
Appeals has explicitly held that the [Worker’s Compensation] Act provides no defense to an
outrageous conduct claim based on the termination of an employee who is on medical leave.”
(Doc. No. 37 at 1.) In Archer, the plaintiff asserted an intentional infliction of emotional distress
claim against his employer following his termination. Id. at 497-98. According to the decision,
the claim was based upon the following facts presented at trial and on appeal, viewed in the light
most favorable to the plaintiff:
Farmer’s VP, Henshaw, and Rawson all believed that Archer had suffered a heart
attack just five days before the termination and were aware that Archer was out on
indefinite sick leave. Although Archer had not missed a day of work in eight
years, Henshaw and Rawson both knew he had been absent from work for four
days before his termination.
Farmer’s VP ordered Archer’s termination from employment. When Henshaw
initially demurred, Farmer’s VP told him, “I don't give a shit if [Archer] is on his
deathbed, if I tell you to fire him, that’s what you will do, or I’ll get somebody
who will.” Henshaw thereafter carried out his instructions, without inquiring
further about the status of Archer’s health, evaluating the possible medical
consequences of delivering such news while Archer was ill, or discussing
alternative means to deliver the news.
Instead, Henshaw and Rawson went in search of Archer, ending up at Archer’s
mother-in-law’s home. In the twenty years Henshaw and Rawson had known
Archer, they had never visited him or been invited to his home. Upon arrival at
his mother-in-law’s home, they entered uninvited.
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Neither Henshaw nor Rawson announced the purpose of their visit or asked about
Archer’s health. Upon entering the spare bedroom, they found Archer lying in
bed, not fully clothed. Without asking Archer whether he was fit to discuss work
matters or when he intended to return to work, they peremptorily announced that
they had his termination papers, which they needed him to initial.
Archer had a reputation as an accomplished branch manager, was fast
approaching retirement, and, even though he was being investigated for alleged
misconduct, had no reason to anticipate that he would be fired by Farmer.
Consequently, news of his firing came as a shock to him.
Noticeably upset by the incident, Archer demanded that Henshaw and Rawson
leave the premises. According to Archer’s doctor, Archer’s health was in such a
delicate condition that the termination incident could have triggered a fatal heart
attack. Archer attempted to commit suicide that evening.
Id. at 499-500.
In reviewing the precise terms of the Worker’s Compensation Act, the court determined
that it did not apply to the plaintiff’s claim.
The Act is an employee’s exclusive remedy against an employer or coworkers for
personal injuries where, as pertinent here, “at the time of the injury, the employee
is performing service arising out of and in the course of the employee’s
employment.” Section 8–41–301(1)(b), C.R.S.2001 (emphasis supplied); see § 8–
41–102, C.R.S.2001 (abolishing causes of action against employer).
***
As used in the Act, the phrase “in the course of” refers to the time, place, and
circumstances under which a work-related injury occurs. Horodyskyj v.
Karanian, supra, 32 P.3d at 475. “The ‘course of employment’ requirement is
satisfied when it is shown that the injury occurred within the time and place limits
of the employment relation and during an activity that had some connection with
the employee’s job-related functions.” Popovich v. Irlando, 811 P.2d 379, 383
(Colo.1991) (the exclusivity provision must be strictly limited to injuries
sustained where both the tortfeasor and the victim are acting in the course of
employment). See 1 Larson's Workers’ Compensation Law § 12.01, at 12–1
(2000).
Id.

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Based on the facts alleged, the court determined that the Worker’s Compensation Act did
not apply because “[a]lthough Henshaw and Rawson were engaged in work-related activity,
Archer was not. Inasmuch as he was away from work on approved sick leave, the incident did
not occur within the time or space parameters of his employment. Further, when terminated,
Archer was not making sales, supervising staff, delivering goods, or attending to any other workrelated duty; rather, he was resting in bed, an activity unrelated to his employment.” Id.
In the present case, Plaintiff argues that the Worker’s Compensation Act does not apply
to her intentional infliction of emotional distress claim because, like the plaintiff in Archer,
Plaintiff “was terminated by Defendant when she was on medical leave, recovering from a lifethreatening illness. . . . And just as in Archer, when she was terminated, she was not involved in
any work-related activity.” (Doc. No. 37 at 3-4.) As a result, she contends that the amendment
would be futile and therefore, Defendant’s request should be denied.
However, Plaintiff was clear not only in her Complaint but also in her response to
Defendant’s motion to dismiss challenging the sufficiency of her claim, that the supporting
allegations are not limited to the manner in which her termination occurred but also include
various events that occurred during the course of her employment. As previously noted, Plaintiff
alleges that, in addition to the events surrounding her termination, Defendant disciplined her for
visiting her doctor and for taking medical leave and that Mr. Martin also yelled and cursed at her,
and on one occasion, did so while standing over her and hitting a wall above her head and on
another, while he threw papers at her. (Comp. at 3-7, 9; see also Doc. No. 16 at 7-8.) There are
no allegations indicating that these events occurred somewhere other than Defendant’s location
and during the work day. In other words, these alleged events occurred while the plaintiff was

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performing “service arising out of” and “in the course of” her employment, thereby directly
implicating the Worker’s Compensation Act. Colo. Rev. Stat. § 8-41-301(1)(b).
Plaintiff argues that if any of the alleged actions supporting an intentional infliction of
emotional distress claim occurs outside of the plaintiff’s employment, as contemplated under the
Worker’s Compensation Act, then the Act does not apply. Specifically, Plaintiff states,
Plaintiff has explicitly pled that her Outrageous Conduct claim is not confined to
‘the time and space parameters of [her] employment.’ Archer, 70 P.3d at 497-98,
but includes actions taken against her when she was not working, i.e. terminating
her while she was hospitalized. (Doc. No. 1, Complaint, ¶¶ 21-23).
Because Plaintiff’s claim is not constrained to the ‘time and place limits’ of her
employment, Archer, 70 P.3d at 497-98, but is based on Defendants’ [sic]
termination of her when she was away from work and in the hospital, Defendant’s
proposed defense is contrary to law. Id.
(Doc. No. 37 at 4.) Plaintiff’s argument in this regard wholly depends on the premise that
Archer stands for the proposition that if any of the alleged conduct supporting an intentional
infliction of emotional distress claim occurs outside of the time and space parameters of
employment, then the Worker’s Compensation Act does not apply. Indeed, with regard to
Archer, Plaintiff states, “Crucially, in reaching its decision the Court found that, even though
some of Defendants’ actions were work related (i.e. the plaintiff was investigated while at work,
Defendants’ employees delivered the termination notice to Plaintiff’s home), the claim was not
barred by the Act because the entire conduct ‘did not occur within the time or space parameters
of his employment.’ Id.” (Doc. No. 37 at 3.) However, the court disagrees with Plaintiff’s
interpretation of Archer and its application to this case.
Though the Archer court noted that the plaintiff was being investigated for misconduct,
nowhere in the decision does the court indicate this was a factual allegation supporting the claim

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at issue. Within the recited facts noted above, the court stated, “Archer had a reputation as an
accomplished branch manager, was fast approaching retirement, and, even though he was being
investigated for alleged misconduct, had no reason to anticipate that he would be fired by
Farmer. Consequently, news of his firing came as a shock to him.” Archer, 70 P.3d at 500.
Clearly, the court does not indicate the investigation was part of his claim.
Further, although the Archer court does note the fact that the defendants were engaged in
employment activities at the time of the termination, the relevant factor in determining the Act
did not apply to the plaintiff’s claim was that the plaintiff was not engaged in employment
activity during the events supporting his claim. Id. at 498 (“Although Henshaw and Rawson
were engaged in work-related activity, Archer was not. Inasmuch as he was away from work on
approved sick leave, the incident did not occur within the time or space parameters of his
employment.”) By contrast, during at least some of the allegations supporting Plaintiff’s claim
herein, she was clearly engaged in her employment. While a state court might someday rule that
if any events supporting an intentional infliction of emotional distress claim occur while the
plaintiff is not engaged in employment then the Act does not apply, Colorado courts have not so
held at this time. See Jones v. Denver Post Corp., 203 F.3d 748, 757 (10th Cir. 2000) (“When
exercising jurisdiction over pendent state claims, we must apply the substantive law of the forum
state . . . .”). Further, while it is unclear to what extent the Worker’s Compensation Act will
preclude Plaintiff’s claim for intentional infliction of emotional distress, that issue will likely be
best resolved through questions of fact rather than law. The court finds Defendant’s assertion of
the Worker’s Compensation Act as the exclusive remedy for Plaintiff’s intentional infliction of
emotional distress claim is not futile.

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Accordingly, it is
ORDERED that “Defendant’s Motion to Amend Answer to Assert an Additional
Defense” (Doc. No. 32) is GRANTED.
Dated this 4th day of April, 2016.

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