Kirk v. Smith

• Decision Date: 02 December 1987
• Docket Number: Civ. A. 85-C-2081.
• Parties: Junee KIRK, Plaintiff, v. Griff SMITH, James Burks, and School District No. 1 in the County of Pitkin, State of Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

674 F. Supp. 803

Junee KIRK, Plaintiff, v. Griff SMITH, James Burks, and School District No. 1 in the County of Pitkin, State of Colorado, Defendants.

Civ. A. 85-C-2081.

United States District Court, D. Colorado.

December 2, 1987.

Larry F. Hobbs, Hobbs/Bethke & Assoc., Denver, Colo., for plaintiff.

Jerry Tompkins, Traylor, Arnold, Tompkins & Black, Grand Junction, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

Plaintiff Junee Kirk asserts a claim under 42 U.S.C. § 1983 for infringement of her First Amendment rights, together with pendent state law claims of assault and outrageous conduct. A tenured teacher for School District No. 1 in Pitkin County, Colorado ("District"), she claims that her strongly expressed support for an expansion of the District's foreign language program evoked retaliatory actions against her by the defendant District and the individual defendants James Burks and Griff Smith. Burks is superintendent of the District and Smith is the school principal who directly supervises the plaintiff.

More specifically, the plaintiff alleges that the defendants reacted to her advocacy of program changes by unfairly reprimanding her, harassing her, and demoting her from the position of full-time teacher to that of permanent substitute teacher. Additionally, she claims that when she met with Burks to discuss her then forthcoming demotion, Burks discovered that she was tape-recording the discussion, and, in an effort to confiscate the tape recorder, physically assaulted her and threw her to the ground.

Defendants Burks and Smith have moved for summary judgment on the plaintiff's pendent state law claims on the grounds that: (1) the plaintiff's claims for assault and outrageous conduct are barred by the Colorado Workmen's Compensation Act; and (2) the allegation of outrageous conduct fails as a matter of law to state a claim upon which relief can be granted. The issues have been fully briefed and oral argument would not assist my decision.

Under Fed.R.Civ.P. 56(c), summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Here, there are apparently no substantial disputes regarding the material facts. Therefore, summary judgment is proper with respect to either or both of the plaintiff's state law claims for relief if, as a matter of law, she cannot prevail on them. In evaluating the pendent state claims, I must apply Colorado Law as defined by the Colorado courts. Cf. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

A. Colorado Workmen's Compensation Act as a Bar to Recovery.

Defendants assert that the Colorado Workmen's Compensation Act ("the Act"), Colo.Rev.Stat. § 8-40-101 et seq., covers the plaintiff's injury and provides an exclusive remedy that preempts her tort claims. See Colo.Rev.Stat. §§ 8-42-102 and 8-43-104; Kandt v. Evans, 645 P.2d 1300, 1302 (Colo.1982) ("recovery under the Act is meant to be exclusive and to preclude employee tort actions against an employer").

Whether worker's compensation coverage is invoked as a defense by an employer, or as the basis of a claim by an employee, the test of applicability is the same. Compensation is to be awarded, and the tort remedy is abolished, if the statute's conditions are all met. Tolbert v. Martin Marietta, Corp., 621 F.Supp. 1099 (D.Colo. 1985), appeal docketed, No. 86-1188 (10th Cir. January 23, 1986). Worker's compensation applies:

"(a) Where, at the time of the injury, both employer and employee are subject to the provisions of said articles and where the employer has complied with the provisions thereof regarding insurance;

(b) Where, at the time of the injury, the employee is performing service arising out of and in the course of his employment;

(c) Where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of his employment and is not intentionally self-inflicted." Colo.Rev.Stat. § 8-52-102(1).

Here, it is uncontested that condition (a) is met, and condition (b) does not appear to be in dispute. Plaintiff argues, however, that the third condition is not met. That is, she asserts that her claims for assault and outrageous conduct are not covered under, and therefore not barred by, the Act, because her injuries: (1) were almost entirely mental and emotional rather than physical; and (2) were not proximately caused by an incident arising out of and in the course of her employment. See Colo.Rev.Stat. § 8-52-102(1)(c).

1. Mental and Emotional Injuries.

In Luna v. City of Denver, 537 F.Supp. 798 (D.Colo.1982), Judge Kane held that state law claims based mainly on mental suffering and humiliation, and only peripherally on physical pain and suffering, are not within the Act's exclusive remedy provision. The plaintiff in Luna had sued his employers alleging three federal claims as well as a state law claim for intentional infliction of emotional distress. He asserted that the defendants discriminated against him because of his Asian race by failing to promote him several times and instead promoting less qualified whites. Defendants contended that the claim for intentional infliction of emotional distress was barred by the Workmen's Compensation Act.

However, Judge Kane held that the injury was not covered by the Act because the plaintiff's claims were based almost exclusively on mental suffering and humiliation resulting from the discriminatory conduct of the employer. In construing § 8-43-104, Judge Kane stated:

"C.R.S. 8-43-104 bars only actions based on `personal injuries or death' of a covered employee. `Personal injury' is not defined by the act, but I do not think that it includes damages such as those alleged by the plaintiff in the present case, which are based mainly on mental suffering and humiliation, and only peripherally on physical suffering and pain." 537 F.Supp. at 801.

Similarly, in Vigil v. Safeway Stores, Inc., 555 F.Supp. 1049 (D.Colo.1983), Judge Kane ruled that an employee's claim that his employer intentionally, negligently, or recklessly had caused him severe emotional distress by trying to entrap him into committing theft of company property, might not be compensable under the Act. He reasoned that the plaintiff's claims were not based on physical injury, relying partially on Professor Larson's treatise, The Law of Workmen's Compensation. There, it was stated that:

"If the essence of the tort, in law, is nonphysical, and if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a makeweight, the suit should not be barred. But if the essence of the action is recovery for physical injury or death, the action should be barred even if it can be cast in the form of a normally non-physical tort." 2A A. Larson, The Law of Workmen's Compensation § 68.34, at 13-62, 63.

Here, the plaintiff's alleged injuries are "based mainly on mental suffering and humiliation" and were almost exclusively non-physical.¹ In her deposition, the plaintiff stated:

"I have experienced considerable emotional distress, physical distress, insomnia, I have been made to feel like a second class citizen, felt like a dog with a tail between its legs, I have been put down, I have been put in demeaning, a demeaning situation, substituting, I have been harassed, I have been snubbed, I have endured a loss of reputation in the articles that have been in the paper, the loss of respect in the community and professionally, I have been essentially a social pariah." (Plaintiff's deposition, at 119-20.)

Additionally, she alleges that she: (1) has lost her hair; (2) has been forced to take sleeping pills; and (3) has had to undergo psychological counseling for the first time. (Id. at 120.) She also contends that she has experienced thyroid problems, has been fatigued, has felt emotionally drained, and has lost weight. (Id. at 120-121.)

Notably, the plaintiff's alleged physical injuries are insignificant compared to her mental suffering. Plaintiff described the "physical distress" mentioned in the above-quoted material as consisting of headaches, a thyroid problem, and lost weight. (Id. at 120-21.) The only other physical injury was a soreness in the plaintiff's elbow that diminished or disappeared a few hours after the assault.

In support of their argument that the Act covers the plaintiff's alleged injuries, the defendants rely on Kandt v. Evans, 645 P.2d 1300 (Colo.1982), and Ellis v. Rocky Mountain Empire Sports, 43 Colo. App. 166, 602 P.2d 895 (1979). Those cases, however, are clearly inapposite. They stand for the proposition that injuries resulting from intentional torts may be compensable under the Act, but they are distinguishable because they involved plaintiffs with primarily physical injuries.

For example, in Kandt the plaintiff's claim for intentional infliction of emotional distress was based on the employer's intentional aggravation of a pre-existing work-related physical injury. It was the physical injury that precipitated the mental and emotional suffering. Additionally, the plaintiff had already been awarded disability benefits under the Workmen's Compensation Act prior to filing her lawsuit.

Ellis also involved a physical injury to the plaintiff. There, the plaintiff was a professional football player who sought damages for intentional infliction of emotional distress resulting from the physical consequences of his initial physical injury. See Luna, 537 F.Supp. at 801 (distinguishing Ellis from the situation where the intentional tort resulted in primarily mental suffering and humiliation).

Similarly, the reliance of the defendants here on two recent Colorado cases is misplaced. In their reply brief, the defendants contend that Fort Logan Mental Health Center v. Walker, 723 P.2d 740 (Co...