Kennedy v. Colo. RS, LLC

• Decision Date: 01 February 2012
• Docket Number: Civil Action No. 10–cv–02240–WYD–MJW.
• Citation: 872 F.Supp.2d 1146
• Parties: Patrick KENNEDY, Plaintiff, v. COLORADO RS, LLC, a Delaware corporation, d/b/a “Riverstone Residential Group SW”; and CAS Partners, LLC, a Texas corporation, Defendants.
• Court: U.S. District Court — District of Colorado

872 F.Supp.2d 1146

Patrick KENNEDY, Plaintiff,

v.COLORADO RS, LLC, a Delaware corporation, d/b/a “Riverstone Residential Group SW”; and CAS Partners, LLC, a Texas corporation, Defendants.

Civil Action No. 10–cv–02240–WYD–MJW.

United States District Court, D. Colorado.

Feb. 1, 2012.

Brice Phillips Kindred, Craig Tyler Truitt, Whitney Charles Traylor, Traylor Law Group, LLC, Paul J. Maxon, Law Office of Paul Maxon, P.C., Denver, CO, for Plaintiff.

Roger Glenn Trim, Steven W. Moore, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Denver, CO, for Defendants.

ORDER

WILEY Y. DANIEL, Chief Judge.

I. INTRODUCTION

Plaintiff filed his First Amended Complaint and Jury Demand (“Complaint”) [ECF No. 53], on July 14, 2011. Plaintiff brings four claims for relief against his former employer: (1) Unfair Labor Standards; (2) Wrongful Termination in Violation of Public Policy; (3) Violation of the Americans with Disabilities Act as amended in 2009(ADA); and, (4) Violation of the Employment Retirement Income Security Act (ERISA). This matter is before the Court on Defendant's Partial Rule 12(b)(6) Motion to Dismiss the Second and Fourth Causes of Action in Plaintiff's Amended Complaint [ECF No. 56], filed July 28, 2011. Plaintiff filed his Response [ECF No. 63] on September 6, 2011, and Defendant filed its Reply [ECF No. 68] on September 22, 2011.

II. BACKGROUND

This case arises from the events surrounding the termination of Plaintiff Patrick Kennedy by Defendant Riverstone Operating Company, Inc., (“Riverstone”) ¹ on February 10, 2010. (Compl., ¶ 7.) The Complaint alleges that Mr. Kennedy was a maintenance employee at Riverstone's Clear Creek Commons (“CCC”) property, an independent living facility for elderly residents. ( Id., ¶ 5.) During the course of his employment, Mr. Kennedy's supervisor was Kathleen Trujillo. ( Id., ¶ 9.) Beginning in 2008, Mr. Kennedy began raising concerns to Trujillo about lax security around the office. ( Id.) He was particularly concerned by the fact that the resident's confidential files containing personal and financial information were stored in an unlocked room. ( Id.) Mr. Kennedy also alleges that throughout his employment he was frequently required to work through his lunch break and that he was required to work during holidays to assist with events for the residents. ( Id., ¶ 10.)

In October 2009, Mr. Kennedy was diagnosed with diverticulitis and potentially cancerous polyps. ( Id., ¶ 11.) He underwent surgery in December 2009 to remove part of his colon. ( Id., ¶ 13.) In anticipation of his medical leave, Mr. Kennedy requested short-term disability benefits from Riverstone. ( Id., ¶ 13). Mr. Kennedy claims that Riverstone received a request for more information from the disability carrier regarding his request in early January 2010. ( Id.) Mr. Kennedy returned to work on January, 11 2010, and submitted a physician-mandated work restriction that prohibited him from lifting more than 15 pounds. ( Id., ¶ 14).

On January 21, 2010 the residents' personal files were stolen from an unlocked room and cabinet at CCC. ( Id., ¶ 15). Mr. Kennedy alleges that his supervisor Trujillo instructed him to lie to the police by telling them the files were locked up. ( Id., ¶ 16–17). Mr. Kennedy refused and Trujillo sent him home, stating that he was putting himself against the company. ( Id., ¶ 19–20.) Rather than inform residents individually about the theft, Riverstone placed a note on the front desk explaining the files had been stolen. ( Id., ¶ 22–24.)

The day after the theft, Mr. Kennedy alleges Trujillo assigned him tasks that violated his work restrictions including moving a washer and dryer, cleaning the entire residential grounds and storage units, painting an apartment, and replacing a toilet. ( Id., ¶ 29–30). He also alleges Trujillo created a new policy, requiring him to account for every moment of his work time, which none of the other employees were required to follow. ( Id., ¶ 32.) On January 26, 2010, Riverside held a meeting where all employees, including Mr. Kennedy, were threatened with termination if they discussed the stolen files. ( Id., ¶ 37.) Mr. Kennedy claims that on February 2, 2010 he was asked but refused to sign a document he presumed to be disciplinary in nature. ( Id., ¶ 39.)

Mr. Kennedy claims that on February 1, 2010 he received a letter from the disability carrier rejecting his application for short-term disability benefits because Riverside had not completed the necessary paperwork. ( Id., ¶ 40.) On February 10, 2010 Mr. Kennedy was terminated for “fraternization with residents” because he had shared information about the files. ( Id., ¶ 41.) Mr. Kennedy claims this was a pretext and that he was actually terminated for refusing to lie to the police. ( Id., ¶ 42.)

III. ANALYSISA. Standard of Review

The Federal Rules of Civil Procedure provide that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003) (citations and quotation marks omitted). “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. If the allegations state a plausible claim for relief, the claim survives the motion to dismiss. Id. at 1950.

B. Whether Dismissal is Appropriate as to Kennedy's Second Claim For Wrongful Discharge

Riverstone asserts that no wrongful discharge claim may lie where the statute on which the claim is premised provides a remedy for wrongful discharge. Riverstone argues that because the ADA and the Colorado Anti–Discrimination Act (“CADA”) provide a full measure of remedies, Kennedy may not bring a wrongful discrimination claim based on either statute.²

Riverstone directs me to a line of cases holding that under Colorado law no wrongful discharge claim may lie where the statute on which the claim is premised provides a remedy. Gamble v. Levitz Furniture Co. of the Midwest, Inc., 759 P.2d 761, 766 (Colo.App.1988) (holding that public policy claims are unavailable where “the statute in question provides the employee with a wrongful discharge remedy”); Caspar v. Lucent Techs., Inc., 280 F.Supp.2d 1246, 1249 (D.Colo.2003) (holding that a wrongful discharge claim is not available given the availability of Title VII remedies); Krauss v. Catholic Health Initiatives Mountain Region, 66 P.3d 195, 203 (Colo.App.2003) (stating that employee could not base wrongful discharge claim on the Family Medical Leave Act because the Act provides its own remedies for retaliatory discharge); Hein v. AT & T Operations, Inc., No. 09–cv–00291–WYD–CBS, 2010 WL 5313526, at *6 (D.Colo. Dec. 17, 2010) (noting that “[u]nder Colorado law, even if a public policy exception is appropriate, it is not available when the statute in question provides a remedy for retaliatory discharge,” and dismissing a wrongful discharge claim because the Sarbanes–Oxley Act provided its own remedy for retaliatory discharge).

In response, Mr. Kennedy argues that Brooke v. Restaurant Services, Inc., 906 P.2d 66 (Colo.1995), supports a finding that wrongful discharge claims premised on the CADA are not barred. In Brooke, the Colorado Supreme Court held that the CADA is not the exclusive remedy for employment-related sex discrimination. Id. at 67. The Brooke court began its analysis by stating the general rule that federal and state remedies for civil rights violations are cumulative, not exclusive. Id. at 68. If the legislature wishes to bar preexisting common law rights with the creation of a statutory private right of action, “it must manifest its intent either expressly or by clear implication.” Id. The court reasoned that because the CADA offers less than a comprehensive remedial scheme, such intent could not be found in the Act. Id. at 69–70. Specifically, the CADA provides no redress to an employee for discriminatory conduct that does not result in an employment-related decision, and damages are not available under the Act. Id. at 69. Moreover, remedies under the CADA “are only incidental to the Act's primary purpose of eradicating discriminatory practices by employers,” and “the duties of the [Colorado Civil Rights Commission], in addition to enforcing the compulsory provisions of the Act, are geared toward eliminating discriminatory practices on a broad scale rather than addressing the harm such practices cause on a case-by-case basis.” Id. The Brooke court concluded by noting that its analysis is applicable to all other forms of prohibited discrimination, including discrimination based on handicap. Id. at 70 n. 4.

1. The CADA

I agree with Kennedy that a wrongful discharge claim premised on the CADA may lie. As I have previously found, the Brooke court “clearly addressed whether CADA may form the basis for a claim of wrongful discharge in violation of public policy, holding that it may.” Bronikowski v. Dish Commc'ns, No. 01–D–0457, at 4 (D.Colo. Sep. 12, 2001) (unpublished order); see also Van DeWege v. Storage Tech. Corp., No....