Ellerton et al v. Sefton Resources Inc., et al

Filing 109

RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 12/29/16. The Court recommends that 84 MOTION to Dismiss filed by John J. Ellerton be DENIED; that 93 MOTION for Summary Judgment filed by S efton Resources Inc. be GRANTED; 75 MOTION for Sanctions filed by Sefton Resources Inc. be DENIED AS MOOT, and that the court DISMISS Mr. Ellerton's three remaining claims WITH PREJUDICE. Additionally, the Court ORDERS that 89 MOTION for Sanctions Under FRCP 37(d) filed by Sefton Resources Inc. is GRANTED IN PART AND DENIED IN PART. The Clerk of the Court is directed to mail Mr. Ellerton a copy of this Recommendation and Order at his address of record: John J. Ellerton, 2724 Puuhoolai Street, Kihei Maui, Hawaii 96753. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5) (nmarb, )

Lammle v. Ball Aerospace & Technologies Corp., Not Reported in F.Supp.2d (2013)
2013 WL 4718928

2013 WL 4718928
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.
Attorneys and Law Firms
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. 1

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, 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

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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 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

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Lammle v. Ball Aerospace & Technologies Corp., Not Reported in F.Supp.2d (2013)
2013 WL 4718928

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. 2 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.

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 statute. 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

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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. 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 disabilityrelated 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.
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

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Lammle v. Ball Aerospace & Technologies Corp., Not Reported in F.Supp.2d (2013)
2013 WL 4718928

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.

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.

All Citations
Not Reported in F.Supp.2d, 2013 WL 4718928

Footnotes

1

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.

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2

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.
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).

End of Document

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