Robyn v. Phillips Petroleum Co., Civ. A. No. 86-K-600

• Citation: 774 F. Supp. 587
• Decision Date: 23 September 1991
• Docket Number: Civ. A. No. 86-K-600,87-K-1801.
• Parties: Elisa ROBYN, Plaintiff, v. PHILLIPS PETROLEUM COMPANY, Defendant.
• Court: U.S. District Court — District of Colorado

774 F. Supp. 587

Elisa ROBYN, Plaintiff, v. PHILLIPS PETROLEUM COMPANY, Defendant.

Civ. A. Nos. 86-K-600, 87-K-1801.

United States District Court, D. Colorado.

September 23, 1991.

Valerie McNaughton, McNaughton & Rodgers, Denver, Colo., for plaintiff.

Kay J. Rice, Cooper & Kelley, Denver, Colo., for defendant.

ORDER ON MOTIONS FOR PARTIAL SUMMARY JUDGMENT

KANE, Senior District Judge.

This matter is before me on the motions for partial summary judgment, filed July 12, 1988 and December 29, 1989, by defendant Phillips Petroleum Company against plaintiff Elisa Robyn. I have jurisdiction over this consolidated action under 28 U.S.C. § 1332(a). For the following reasons, I grant in part the December 29 motion and deny it in part. The July 12 motion is denied as moot.

I. Facts.

On March 5, 1986, Robyn commenced this action in Colorado state court. She was then employed by Phillips as a geologist. On March 28, 1986, Phillips removed the action to this court based on diversity and federal question jurisdiction. In her initial complaint, Robyn alleged that Phillips discriminated against her because of her sex by denying her promotions, pay and benefits commensurate with her male coworkers and by subjecting her to a sexist work environment. Her second claim alleged that these events amounted to outrageous conduct. Robyn lost her job with Phillips in May of 1986. Shortly thereafter, she filed a Supplemental Complaint, adding allegations of retaliatory discharge to her discrimination claim.

On February 26, 1987, Robyn was granted permission to file a First Supplemental Complaint, in which she changed the basis for her sexual discrimination claims from state law to Title VII. She also added a federal Equal Pay Act claim and a state law claim for invasion of privacy. On November 27, 1987, she filed a Second Amended Complaint, seeking to add allegations of religious discrimination to her Title VII claim. Three days later, Robyn commenced a separate action in which she alleged the identical religious discrimination claim as that contained in her Second Amended Complaint. By order dated January 4, 1988, the two suits were consolidated for all purposes.

On June 19, 1987 and May 16, 1988, Phillips moved for summary judgment on Robyn's Title VII claims, contending that they were untimely under the statute's 90-day limitations period and that the complaint failed to state a claim for religious discrimination. The court denied summary judgment on the religious discrimination claim, but granted the motion as to the sexual discrimination claim. The court then permitted Robyn to amend her complaint to reassert under state law her claims for sexual discrimination.

On August 15, 1988, Robyn filed her Third Amended Complaint, deleting all former discrimination claims under Title VII, including those based on religious discrimination, and realleging them under the Colorado Antidiscrimination Act. Presently, Robyn's complaint alleges five claims for relief: (1) a claim under the Colorado Antidiscrimination Act for religious and sexual discrimination, (2) a claim for outrageous conduct, (3) a claim for violation of the federal Equal Pay Act, (4) a claim for invasion of privacy, and (5) an undesignated claim alleging negligent breach of employment contract.

Phillips moves for summary judgment on all but the Equal Pay Act claim. Phillips argues (1) Robyn's claim under the Colorado Antidiscrimination Act is barred by the Act's six-month statute of limitations, (2) the complaint fails to state a claim for outrageous conduct, (3) the complaint fails to state a claim for invasion of privacy, (4) there is no actionable claim for negligent termination of employment, and (5) the exclusivity provisions of Colorado's workmen's compensation act bar the latter three claims.

II. Merits.

A. Statute of Limitations.

Phillips contends that Robyn's claim under the Colorado Antidiscrimination Act of 1957 (the Act), as amended, Colo.Rev. Stat. §§ 24-34-301 to 406 (1988 & Supp. 1990), is barred by the Act's six-month limitations period. The Act provides that "any charge alleging a civil rights violation ... shall be filed with the commission pursuant to section 24-34-306 within six months after the alleged discriminatory or unfair employment practice occurred, and if not so filed, it shall be barred." Id. § 24-34-403 (Supp.1990).¹ Phillips alleges that Robyn's claims under the Act are untimely because they are based on events which occurred between May 1980 and April 1986, but her separate complaint for religious discrimination was not filed until November 30, 1987, more than six months after her termination.

This issue is governed by Rule 15 of the Federal Rules of Civil Procedure. Under this rule, "whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." Fed.R.Civ.P. 15(c). It "deals expressly with the relation back of amended pleadings and covers amendments adding a claim or defense, altering the theory of the action, correcting a misnomer, or changing a party." 6A Charles A. Wright et al., Federal Practice and Procedure § 1503 at 171 (1990).

Although the procedural history of this consolidated case is somewhat convoluted, Robyn's most recent allegations of sexual and religious discrimination under state law arise out of the same "conduct, transaction, or occurrence" alleged in her initial complaint filed in state court and removed to this court. By changing the legal basis of this claim from Title VII to the Act and adding allegations of religious discrimination, she simply altered the theories upon which her discrimination claim was based, a purpose directly contemplated under Rule 15(c). Id. § 1497 at 94-95 (an amendment changing the legal theory on which the action was originally brought "is of no consequence if the factual situation upon which the action depends remains the same and has been brought to defendant's attention by the original pleading"); see, e.g., Dent v. United States Postal Serv., 538 F.Supp. 1079, 1080-81 (S.D.Ohio 1982) (amendment to assert jurisdictional basis in civil rights action related back); Baruah v. Young, 536 F.Supp. 356, 364 (D.Md.1982) (amendment changing basis for discrimination from race to national origin related back); Thomas v. Southdown Sugars, Inc., 484 F.Supp. 1317, 1320 (E.D.La.1980) (complaint amended to assert second incident of racially motivated demotion related back); Bernstein v. National Liberty Int'l Corp., 407 F.Supp. 709, 712-13 (E.D.Pa. 1976) (addition of sex discrimination claim related back to original complaint alleging religious discrimination).

Phillips contends, however, that the relation back doctrine of Rule 15(c) is of no assistance because Robyn did not file her complaint in the religious discrimination suit until November 1987, over six months after she was terminated. The proper complaint for the purpose of relation back, however, is her original complaint removed to this court, not her complaint in the latter religious discrimination suit.² This complaint was filed on March 5, 1986, before her termination from Phillips, and removed here on March 28, 1986, see Handy v. Uniroyal, Inc., 298 F.Supp. 301, 305 (D.Del. 1969) (noting that removal petition considered a "pleading" for purposes of Rule 15(c)), well before the expiration of the Act's statute of limitations.³ Phillips' motion for summary judgment on Robyn's sex and religious discrimination claim as untimely is therefore denied.

B. Failure to State a Claim for Outrageous Conduct.

Phillips next moves for summary judgment on Robyn's outrageous conduct claim. In her complaint, Robyn alleges that "Defendant unlawfully gained access to Plaintiff's confidential banking records without her consent by fraudulently representing itself as the Plaintiff." (Compl. ¶ 22(a).) Phillips contends these allegations are insufficient as a matter of law to support an outrageous conduct claim under Colorado law and that Robyn has failed to demonstrate that there is a genuine issue of material fact establishing that Phillips wrongfully obtained the statement.

Although outrageous conduct is a decision for the jury to decide, Meiter v. Cavanaugh, 40 Colo.App. 454, 580 P.2d 399, 401 (1978), "it is for the court to determine, in the first instance, whether reasonable persons could differ on the issue." Denver & Rio Grande Western R.R. Co. v. Forster, 773 P.2d 612, 614 (Colo.App.1989). In Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 756 (1970), Colorado adopted the Restatement (Second) of Torts' definition of outrageous conduct. Thus, "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Restatement (Second) of Torts § 46(1) (1965).

Liability has been found only where the conduct has been 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

Id., comment d at 73; see Rugg, 476 P.2d at 756.

In this case, Robyn's claim is based solely on the company's alleged acquisition of her bank statement. Colorado recognizes that a person has a reasonable expectation of privacy in bank records and financial transactions which must be protected from unreasonable governmental intrusion. Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117, 1120-21 (1980). However, in Rubenstein v. South Denver Nat'l Bank, 762 P.2d 755, 757 (Colo.App.1988), the court held that revealing...