Archer v. Cook

• Decision Date: 07 June 2022
• Docket Number: Civil Action 21-cv-02649-RM-NRN
• Parties: CELESTE T. ARCHER, Plaintiff, v. KIMBERLYN COOK, in her individual capacity LACEY KLINDT, in her individual capacity, and ELEANORE LEWIS, in her individual capacity, Defendants.
• Court: U.S. District Court — District of Colorado

CELESTE T. ARCHER, Plaintiff,
v.
KIMBERLYN COOK, in her individual capacity LACEY KLINDT, in her individual capacity, and ELEANORE LEWIS, in her individual capacity, Defendants.

Civil Action No. 21-cv-02649-RM-NRN

United States District Court, D. Colorado

June 7, 2022

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS SECOND AMENDMENT COMPLAINT (Dkt. ##24 & 29)

N. REID NEUREITER UNITED STATES MAGISTRATE JUDGE

1. Introduction

As I have noted more than once during hearings in this case, “there are mountains and then there are molehills.” Plaintiff Celeste Archer and her lawyers are trying to turn the latter into the former by making a federal constitutional lawsuit out of a two hour inconvenience.

In September 2021, Ms. Archer received a notice under the University of Colorado Denver's (the “University” or “CU Denver”) COVID-19 safety protocols. The notice was based on an inaccurate COVID-19 report which indicated Ms. Archer was the source of a COVID-19 exposure. The notice included a directive that she stay away from the University's campus pending communication with a member of the contact

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tracing team. Two hours later, after Ms. Archer complained and made clear she was vaccinated and not suffering any symptoms, the directive was reversed.

Ms. Archer and her lawyers now claim that her supposed property interest in being able to go to the office was infringed because the University's directive to avoid campus was issued without an allegedly constitutionally mandated pre-deprivation hearing. This is so, even though as soon as Ms. Archer heard about the directive, she communicated with the contact tracer listed on the notice and quickly had the directive reversed. Ms. Archer could have gone into the office that same afternoon, but decided she was too upset to go in, even over the weekend. Reciting even these skeletal allegations underscores the patent absurdity of the constitutional claim being made here. In addition to the constitutional claim against the contact tracers who sent out the directive, Ms. Archer brings a state law claim for outrageous conduct against the person who made the false report, Ms. Eleanore Lewis.

Defendants have moved to dismiss, arguing that there was no constitutional violation and that the defendant employees have immunity from suit, both under the doctrine of qualified immunity and, with respect to one state law claim against Ms. Lewis, pursuant to Colorado's Governmental Immunity Act (“CGIA”).

Based on the allegations of the Second Amended Complaint (Dkt. #21), I find there was no constitutional violation. Not every arguably wrongheaded employment decision by a governmental entity violates the United States Constitution. And in this case, a directive that an employee not come to work for the afternoon, based on a suspicion of COVID-19 exposure, with zero other effects on her job (such as a reduction in pay or change in job responsibilities), does not deprive that employee of any

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constitutionally protected property right. In addition, to the extent there was any deprivation at all, Ms. Archer had a meaningful and prompt post-deprivation way of addressing the issue-she contacted the person listed on the notice and cleared up the misunderstanding. And, even if there were an arguable constitutional violation here, Defendants Kimberlyn Cook and Lacey Klindt, who were the contact tracers, have qualified immunity from suit because the claimed right is not clearly established. There is no Supreme Court or Tenth Circuit decision putting a reasonable official on notice that the conduct in this case violated the Constitution. Ms. Archer's federal claim should be dismissed with prejudice.

Absent the continued existence of any federal claim, the sole remaining claim is the state law claim for outrageous conduct. This Court could decline to exercise supplemental jurisdiction over this claim. See Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995) (explaining that the “most common response” to a pretrial disposition of federal claims has been to dismiss a remaining state law claim without prejudice, absent compelling reasons to the contrary). However, the question of whether the outrageous conduct claim against Ms. Lewis should survive has been fully briefed and it would be an unnecessary expense and prolongation of this litigation to not decide the issue at this time. Dismissing without prejudice merely to allow Ms. Archer to refile in state court and force all parties to make all the same arguments again in another forum would not be in the interests of justice, nor would it be consistent with Rule 1.

With respect to the state law claim, I conclude that Ms. Lewis's report of COVID-19 symptoms/exposure (whether false or not) was part of the Ms. Lewis's duties as a University employee. Because the report of COVID-19 exposure fell within the scope of

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the scope of her employment, the claim against Ms. Lewis for wrongful reporting (allegedly constituting outrageous conduct) comes under the notice requirements of the CGIA. Ms. Archer did not give the required notice under that Act and therefore this Court lacks jurisdiction to hear that claim. Normally, the Court's lack of subject matter jurisdiction for failure to comply with the CGIA notice requirements results in dismissal without prejudice. However, where the time has lapsed to file the notice and the pleading defect therefore cannot be cured even in state court. I also find that, even if Ms. Archer's allegations are accepted as true, a single intentional false report that a coworker is spreading COVID-19 does not reach the extreme level of behavior needed for the tort of outrageous conduct in Colorado. The state court claim should be dismissed for this reason as well.

2. Conversion of the Motion to Dismiss (Dkt. #24) to a Motion for Summary Judgment

Because the parties referenced documents and stipulations not contained in the Second Amended Complaint in the briefing on the Motion to Dismiss filed on behalf of all defendants (Dkt. #24), I elected to convert this Motion to Dismiss to a Motion for Summary Judgment. See Fed.R.Civ.P. 12(d). I gave the parties the opportunity to submit additional affidavits or documents in support of their respective positions as to whether Ms. Archer has adequately stated a constitutional claim and whether the Court has jurisdiction over the state law claim. See Dkt. #50. Defendants declined to provide additional documentation or affidavits, taking the position that there was no need to convert the Motion to Dismiss to a Motion for Summary Judgment because the Court is entitled to take judicial notice of certain matters outside the pleadings without conversion. See Dkt. #53. Ms. Archer, for her part, provided an affidavit and other

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materials. See, e.g., Dkt. #54-1 (Archer Declaration); Dkt. #54-2 (September 6, 2021 Email Blast); Dkt. #54-3 (Deposition transcript excerpts). Ms. Archer also incorporated other materials that had previously been submitted in connection with her opposition to the Motion to Stay Discovery. These included Dkt. #34-1 (Defendant's Answers to Plaintiff's First Requests for Admission); Dkt. #34-2 (e-mail chain including statement by associate University counsel that “[n]o one should have said you were excluded from campus. They were moving way too fast.”); Dkt. #34-4 (e-mail of September 3, 2021 directing Ms. Archer not to come to campus); Dkt. #34-5 (e-mail of September 3, 2021 to Ms. Archer's supervisor saying, “Celeste Archer is unable to be physically present on campus at this moment”); and Dkt. #34-6 (e-mail of 9/3/2021 from Kimberlyn Cook saying, “I have spoken with Celeste, and would like to let everyone know that she has been cleared to return to campus, effective immediately.”).

3. Factual Background

Plaintiff Celeste Archer is the Executive Director of the University of Colorado Denver's National History Day in Colorado program, and “a mainstay in the Denver education community.” Dkt. #21 at 1. Ms. Archer serves on numerous boards, such as the National Conference of Governor's Schools, and has received myriad awards, including being named the 2019 Defender of Democracy by the Denver League of Women Voters. Ms. Archer has served as a teacher in schools and universities in Houston and Denver for over 25 years. Ms. Archer also serves as Executive Director of the Colorado Student Leaders Institute, based at CU Denver.

On September 1, 2021, Ms. Archer was not in Colorado. She was in Texas. Dkt. #54-1 ¶ 10.

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On September 3, 2021, a week before National History Day's showcase event for which Ms. Archer was responsible (scheduled for September 10, 2021), while en route to her CU Denver office, Ms. Archer received an e-mail notice that, based on an anonymous report, she had been exposed to COVID-19, and was directed to stay away from the CU Denver campus pursuant to its COVID-19 protocols. The notice read as follows:

Hello,

The Contact Tracing Team has received notification that you have either been exposed to COVID 19, tested positive for COVID-19, Or [sic] having symptoms related to COVID-19.

If you are a University Staff, Student or Faculty you MUST fill out this self-report form [. . .] Please do not come to campus. A contact tracer will reach out to you about next steps and returning to campus (if you are symptomatic or positive for COVID 19). Please remain off campus until you are cleared by your contact tracer to return.

For any self-report questions, please e-mail Lacey Klindt at LACEY.KLINDT@CUANSCHUTZ.EDU and KIMBERLYNCOOK@CUANSCHUTZ.EDU.

For any medical questions regarding COVID 19, please call your health care provider.

Thank you,

Kimberlyn Cook

Occupational Health I Environmental Health and Safety

Dkt. #21-2 (“COVID-19 Notice”) (emphasis in original).

Per the Second Amended Complaint, this exclusion notice originated when, at 11:18 a.m. on...