Christen-Loper v. Bret's Elec., LLC, Case No. 15-cv-00496-RM-KMT
Decision Date | 29 March 2016 |
Docket Number | Case No. 15-cv-00496-RM-KMT |
Citation | 175 F.Supp.3d 1213 |
Parties | Nanci Christen-Loper, Plaintiff, v. Bret's Electric, LLC, Defendant. |
Court | U.S. District Court — District of Colorado |
Paul J. Maxon, The Law Office of Paul Maxon, P.C., Boulder, CO, for Plaintiff.
Christian Dow Hammond, Lawrence Daniel Stone, Dufford & Brown, P.C., Denver, CO, for Defendant.
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.
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, 167 L.Ed.2d 929 (2007). A complaint warrants dismissal if it fails “in toto to render [plaintiff's] entitlement to relief plausible.” Id . at 569, 127 S.Ct. 1955 n. 14.
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 (10th Cir.1996) ().
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 .)
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, (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 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 .)
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 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...
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