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Case 1:03-cv-01793-EWN-BNB Document103 Filed 08/17/2005 Page 1 of 37 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-N-1793 (BNB) PATRICIA A. EMERSON, Plaintiff, Vv.
WEMBLEY USA, INC.; WEMBLEY INC.;
ROBERT TY HOWARD in his personal capacity; and JEFFREY GOERGEN in his personal capacity, Defendants.
BRIEF IN SUPPORT OF WEMBLEY INC.’S RENEWED MOTION FOR SUMMARY JUDGMENT AND WEMBLEY USA, INC.’S RENEWED MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendants Wembley, Inc. (““WINC”) and Wembley USA, Inc. (“‘WUSA”), through their attorney Kristen L. Mix of Snell & Wilmer L.L.P., respectfully submit the following brief in support of their respective Renewed Motion for Summary Judgment and Renewed Motion for Partial Summary Judgment.
STATEMENT OF UNDISPUTED MATERIAL FACTS
l. Plaintiff became an employee of Defendant WUSA in approximately January 1999. Emerson Depo. 9:8-9, excerpts attached as Exhibit A-1.' Plaintiff resigned her employment on December 17, 2002. Jd. at 146:14-16; Resignation Ltr., attached as Exhibit A-2.
2. WUSA is a wholly-owned subsidiary of WINC. Howard Aff. { 3, attached as Exhibit A-3. WINC does not have physical operations. /d. at 76. It has no office and no
" All excerpts from Plaintiff's deposition cited herein are attached as part of Exhibit A-1. 92402.1
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employees. Jd. at { 7; Emerson Depo. 11:11; 104:7-11. Rather, it is a holding company that is the parent to WUSA and Rhode Island-based subsidiaries. Howard Aff. 6. WINC’s primary function is to file consolidated U.S. tax returns on behalf of all of its subsidiary companies. Jd. At the time when the events described in Plaintiffs First Amended Complaint occurred, the ultimate parent company of WINC was Wembley ple, a British company. Jd. A corporate structure diagram of the Wembley companies during the relevant timeframe is attached hereto as Exhibit A-14.
3. Plaintiff was hired as a controller in WUSA’s accounting department. Emerson Depo. 10:17-18. During her tenure as a WUSA employee, Plaintiff performed accounting and other financial functions for the benefit of all of the Wembley-affiliated companies, including WINC and its several subsidiaries. /d. at 10:10-12; 101:22-25; 102:1-9.
4, From 1999 until April 2001, Plaintiff reported directly to WUSA’s Chief Financial Officer (“CFO”), David Brents. Jd. at 10:4-6; 12:1-7; 13:10-14. During this same period of time, Plaintiff also reported to WUSA’s President and CEO, Skip Sherman. /d. 10:4-6; 12:1-7; 13:15-19.
5. In April of 2001, both Mr. Brents and Mr. Sherman no longer had direct reports at WUSA and ultimately separated their employment from the company. Howard Aff. ¢ 9.
6. In April of 2001, WUSA hired Defendant Robert Ty Howard as WUSA’s CEO. Howard Aff. ¥ 2. Shortly thereafter, Mr. Howard was also appointed to serve as WUSA’s President, CEO, CFO and Treasurer, as well as President, CEO, CFO and Treasurer of WINC.
Id. at 2-3.
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7. After Mr. Sherman and Mr. Brents left the company and Mr. Howard took over as CEO, Plaintiff reported to Mr. Howard. Howard Aff. § 9. Mr. Howard acted as Plaintiff's supervisor until WUSA hired Jeff Goergen to serve as its CFO in October 2001. Jd. at 10. From October 2001, until separation of Plaintiff's employment in December 2002, Mr. Goergen was Plaintiff's immediate supervisor. Jd. at 10. See also Emerson Depo. 198:19.
8. Effective December 31, 2001, Mr. Goergen was appointed as WUSA’s CFO by its Board of Directors. Howard Aff. 4. In September 2003, Mr. Goergen was appointed as WINC’s CFO and Treasurer. Id.
9. On February 15, 2002, Jeff Goergen sent an e-mail to Plaintiff that contained critical remarks about her recent work performance. See 2/15/02 E-mail, attached as Exhibit A-
4. After February 2002, Mr. Goergen sent Plaintiff additional e-mails, some of which were complimentary of her work performance and others which criticized her performance and behavior. See Various E-mails, attached as Exhibit A-5; and 12/13/02 E-mail attached as Exhibit A-15. He also drafted a job performance evaluation for Plaintiff that was both complimentary and critical of her job performance. Evaluation, attached as Exhibit A-6.
10. On October 25, 2001, Plaintiff filed her first Charge of Discrimination against WUSA with the Equal Employment Opportunity Commission (“EEOC”) alleging gender discrimination. See 10/25/01 EEOC Charge, attached as Exhibit A-7.
11. On June 3, 2002, Plaintiff filed a second Charge of Discrimination against WUSA with the EEOC alleging continuing gender discrimination and retaliation. See 6/3/02 EEOC
Charge, attached as Exhibit A-8. Plaintiff's statements made in support of this charge were
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Case 1:03-cv-01793-EWN-BNB Document103 ~~ Filed 08/17/2005 Page 4 of 37 made under oath. /d. Plaintiff also supported her charge with a June 3, 2002 Affidavit, also submitted under oath. See 6/3/02 Affidavit, attached as Exhibit A-9.
12. On January 28, 2003, Plaintiff filed a third Charge of Discrimination against WUSA with the EEOC alleging continuing retaliation for her complaints of gender discrimination. See 1/28/03 EEOC Charge, attached as Exhibit A-10. Plaintiffs statements in support of this charge were made under oath. Jd.
Additional Undisputed Facts Relating to Plaintiff's Breach of Contract Claim
13. Onor about January 1, 1999, David Brents provided Plaintiff with a letter that stated, in pertinent part: “In the event that the Company chooses to terminate your employment for any reason, you will be entitled to payment of one year’s full pay.” 1/9/99 Letter, attached as Exhibit A-11. This letter (hereinafter “termination agreement”) is printed on WUSA letterhead and signed by Mr. Brents in his capacity as CFO for WUSA. 7d.
14. Neither WUSA nor WINC have paid Plaintiff severance pay pursuant to this termination agreement.
Additional Undisputed Facts Related to Plaintiff's Claim that WINC was her Employer
15. | WINC isa separate and distinct entity from WUSA. Howard Aff. { 3.
16. There is no employment contract between Plaintiff and WINC. Jd. at 78. WINC never paid Plaintiff a salary or provided her with any employment benefits. /d.; Emerson Depo. 11:12-14; 99:2-13; 102:13-25. Nor did WINC provide Plaintiff with an employee handbook. Id. 103:1-4; Handbook Excerpt, attached as Exhibit A-12; Howard Aff. 7.
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Additional Undisputed Facts Related to Plaintiff's Claim of Witness Retaliation
16. The state of Rhode Island initiated grand jury proceedings against two individuals, Daniel Bucci and Nigel Potter, who worked for companies affiliated with WUSA. Emerson Depo. 72:15-19. In 2001, Daniel Bucci was General Manager of Lincoln Park, a Wembley-affiliated company located in Rhode Island. Howard Aff. J 11. Nigel Potter was President and CEO of Wembley plc, the British parent company of all of the Wembley-affiliated companies. Jd. at § 10. According to Plaintiff, the Rhode Island grand jury proceedings involved allegations of fraud and bribery. Emerson Depo. 72:15-19.
17. Fora period of time during her employment with WUSA, Plaintiff's job duties included performing financial functions for Lincoln Park. Emerson Depo. 10:10-11; 78:17-22. Because of her responsibilities relating to Lincoln Park, Plaintiff assisted in the grand jury investigation. /d. at 72:20-25. Plaintiff also testified before the grand jury on February 13, 2002 pursuant to a subpoena. Subpoena, attached as Exhibit A-13.
18. The events about which Plaintiff testified concerned only matters relating to the operations of Lincoln Park that preceded the hiring of Ty Howard in April 2001. Emerson Depo. 196:17-20. In general, Plaintiffs testimony concerned corporate board action, and her knowledge concerning certain payments and expenditures. Jd. 196:3-14. Plaintiff did not make any reference to Mr. Howard or Mr. Goergen during her grand jury testimony. Jd. 196:21-23. Plaintiff did not discuss her grand jury testimony with anyone other than her attorneys and her boyfriend, Bernard Filliat. Jd. at 45:9-10; 196:25; 197:1-3. Plaintiffis not aware of anyone at
the company who has knowledge about the content of her grand jury testimony. /d. at 197:6-21.
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19. Jeff Goergen sent Plaintiff an e-mail dated December 13, 2002 (the “December 13 email’’) with the subject listed as “Emerson exclusion.” 12/13/02 E-mail, attached hereto as Exhibit A-
15. This e-mail was also sent to several third parties, who are indicated on “To:” line of the e-mail. Jd.
20. Plaintiff believes that Mr. Goergen’s statements in the December 13 e-mail damaged her reputation. Emerson Depo. Vol. II. 306:2-4, attached hereto as Exhibit A-16.
21. Plaintiff cannot identify a single job she believes she would have gotten, but for the December 13 e-mail. /d. at 317:17-21.
22. Plaintiff admits that no one has told her that they think less of her because of the December 13 e-mail. Jd. at 331:17-21. She also admits that no one has told her that they feel she is less competent than they thought before they saw the December 13 e-mail (/d. 331:22-332:17) or that they respect her less as a result of reading the December 13 e-mail. Jd. at 332:18-20.
25. No one has told Plaintiff that they believe she was guilty of misconduct or anything like misconduct as a result of reading the December 13 e-mail. Jd. at 332:21-24.
STANDARD OF REVIEW
Summary judgment is proper if no genuine issues of material fact exist and one party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 USS. 242, 250 (1986). The movant need not show an absence of genuine issues of material facts, nor must it negate the nonmovant’s claims. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Rather, it must only allege an absence of evidence to support the opposing party’s case and identify supporting portions of the record. Jd| Once the movant has carried its initial burden, the burden of going forward shifts to the opposing party to go beyond the pleadings and 92402.1 6
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identify specific facts showing genuine material issues for trial on every element challenged by the motion. Mowat-Chesney v. Children’s Hosp., 917 F.Supp. 746, 748 (D.Colo. 1996). Because the content or substance of the nonmovant’s evidence must be admissible to defeat summary judgment, Thomas y. International Bus. Mach., 48 F.3d 478, 485 (10th Cir. 1995), unsupported factual allegations will not establish an issue of material fact precluding the entry of summary judgment. See Handy v. Price, 996 F.2d 1064, 1068 (10th Cir. 1993); see also Klover v. Antero Healthplans, 64 F.Supp.2d 1003, 1008 (D.Colo. 1999) (“Unsupported allegations without any significant probative evidence tending to support the complaint are insufficient, as are conclusory assertions that factual disputes exist.” (internal citations omitted)). If the nonmoving party fails to make the required showing as to any element essential to her case and on which she bears the burden of proof at trial, then the movant is entitled to summary judgment “since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.
ARGUMENT
I. PLAINTIFF HAS NO EVIDENCE TO SUPPORT HER BREACH OF
CONTRACT CLAIM.
Plaintiff's fifth claim for relief is a breach of contract claim against both WUSA and WINC. This claim fails as a matter of law for two reasons. First, Defendants’ performance under the termination agreement at issue was never triggered because the condition precedent contained therein never occurred. Second, this claim cannot stand against WINC because WINC is not a party to the agreement.
Plaintiff testified during her deposition that the sole document supporting her breach of
contract action consists of the single-page, two-sentence letter attached hereto as Exhibit A-11.
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Case 1:03-cv-01793-EWN-BNB Document103 ~~ Filed 08/17/2005 Page 8 of 37 Emerson Depo. 189:12-23. This termination agreement is printed on WUSA letterhead and signed by David Brents in his capacity as Chief Financial Officer of WUSA. See Exhibit A-11. In its entirety, the termination agreement states:
The purpose of this letter is to confirm in writing the oral agreement with regard to your employment with Wembley USA. In the event that the Company chooses to terminate your employment for any reason, you will be entitled to payment of one year’s full pay.
Plaintiff resigned her employment on December 17, 2002. See Exhibit A-2; Emerson Depo. 146:14-16. She claims that her resignation was tendered under terms of a constructive discharge. FAC J 42. Plaintiff bases her breach of contract claim on the fact that neither WUSA nor WINC paid her one year’s severance pay upon her resignation. Jd. at Ff 43, 59-60. In order to establish a breach of contract claim under Colorado law, a party must prove
(1) the existence of a contract; (2) performance by the plaintiff or some justification for nonperformance; and (3) the duty and failure to perform the contract by the defendant. See Klover, 64 F.Supp.2d at 1009; Western Distrib. Co. v. Diodosio, 841 P.2d 1053, 1057 (Colo. 1992). In this case, Plaintiff cannot establish a duty to perform on the part of WUSA or WINC, or the existence of a contract between herself and WINC.
Interpretation of a contract is generally a question of law for the court. Jn re Parsons, 272 B.R. 735, 752 (D.Colo. 2001). The primary goal of contract interpretation is to determine and give effect to the intent of the parties. Ad Two, Inc. v. City & County of Denver, 9 P.3d 373, 376 (Colo. 2000). To determine the parties’ intent, “the instrument's language must be examined and construed in harmony with the plain and generally accepted meaning of the words employed. Written contracts that are complete and free from ambiguity will be found to express the intention of the parties and will be enforced according to their plain language.” Jd. See also 92402.1 8
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Parsons, 272 B.R. at 752. Barring an ambiguity, a court may “not look beyond the four corners of the agreement to determine the meaning intended by the parties.” Ad Two, 9 P.3d at 377.
A, The Condition Precedent of the Termination Agreement Did Not Occur and, Therefore, Performance by Defendants was not Required.
Plaintiff cannot establish a breach of the terms of the termination agreement because the condition precedent contained therein never occurred. “Parties to an agreement may make one party’s performance contingent on satisfaction of a condition. If a condition does not or cannot occur then performance is not required.” Sternberg v. Secretary, Dept. of Health & Human Sery., 299 F.3d 1201, 1207 (10" Cir. 2002) (internal citation omitted). See also St. Paul Fire & Marine Ins. Co. v. Estate of Hunt, 811 P.2d 432, 434 (Colo. App. 1991) (a condition is an event which must occur before performance under a contract becomes due).
In this case, performance under the termination agreement is triggered only upon “the event that the Company chooses to terminate [Plaintiff's] employment. ...” In other words, the condition precedent triggering performance here is the company’s unilateral decision to terminate Plaintiff's employment. The plain and unambiguous language of the agreement does not include any requirement of performance upon Plaintiff’s termination of her own employment. Had the parties intended Plaintiff to receive severance upon such an event, they could have easily included express language to that effect. See Union Ins. Co. v. Houtz, 883 P.2d 1057, 1063 (Colo. 1994) (interpreting a contract according to its plain language rather than according to terms not included but which could have been easily added had that been the parties’ intent); Colonial Ins. Co. v. American Hardware Mut. Ins. Co., 969 P.2d 796, 799 (Colo.App. 1998) (same). It is undisputed that Plaintiff's separation from employment was
initiated upon her own resignation. See Emerson Depo. 146:14-16; Exhibit A-2.
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Under these circumstances, Defendants’ performance under the agreement was not required because, even viewing the evidence in a light most favorable to Plaintiff, by assuming arguendo that Plaintiff was constructively discharged, a “constructive discharge” does not constitute termination by the company for purposes of her breach of contract claim. See Alliance Metals, Inc. v. Hinely Indus., Inc., 222 F.3d 895, 902-903 (11" Cir. 2000). While there are apparently no cases within this jurisdiction addressing the question of whether a constructive discharge constitutes termination by the employer in the context of a breach of contract claim, the Eleventh Circuit’s rationale in Alliance Metals on this issue is persuasive.
In that case, Alliance Metals brought suit against its former employee, in part, for breach of a non-competition clause after the employee resigned under a claim of constructive discharge and set up a competing business. Jd. at 898-899. The court granted summary judgment in favor of Alliance Metals on this claim. On appeal, the employee maintained that his constructive discharge constituted a termination without cause, and therefore the non-competition provision was void pursuant to language in the agreement stating that the provision “shall be null and void in the event Employee is terminated by Employer without cause... .” Jd. at 900. The Eleventh Circuit rejected this argument, placing significant weight on the words “by Employer” by holding that these words “contemplate a conscious choice by Alliance Atlanta to terminate [employee] without cause in order to free him of his contractual duty not to compete.” Jd. at
902. The court thus concluded that “the language ‘terminat[ion] by Employer without cause’ manifests the intent to foreclose the sort of unintentional invalidation of the non-competition
provision that could result from a constructive discharge” and held that “an alleged constructive
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discharge would not constitute a ‘terminat[ion] by Employer without cause”’ pursuant to the express terms of the employment contract. Jd. at 902-903 (emphasis added).
The rationale of Alliance Metals is particularly applicable in this case given the language in the termination agreement that payment only becomes due “in the event that the Company chooses” to terminate Plaintiff's employment. As in the Alliance Metals case, this language unequivocally manifests a conscious choice by the company -- rather than an unintentional triggering of the duty to perform by a claim of constructive discharge. Because the company did not choose to terminate Plaintiff's employment, its obligation to perform under the termination agreement was not triggered. Accordingly, neither WUSA nor WINC are bound by this agreement and Plaintiff's claim for breach of contract fails as a matter of law. New York Life Ins. Co. v. K N Energy, Inc., 80 F.3d 405, 411 (10" Cir. 1996) (under Colorado law, party could not be bound by agreement to agree or by contract subject to conditions precedent which were never fulfilled). Summary judgment in favor of WUSA and WINC on this claim is therefore appropriate.
B. WINC is Not a Party to the Termination Agreement.
Summary judgment in favor of WINC on Plaintiff’s breach of contract claim is also appropriate because WINC was not a party to the termination agreement. It goes without saying that in order to prevail on a claim for breach of contract, the complainant must prove the existence of a contract. See Klover, 64 F.Supp.2d at 1009; Diodosio, 841 P.2d at 1057. “Although generally, the question of whether a contract exists is a matter of fact to be determined by the jury, this is only the case where ‘the evidence is conflicting or admits of more
than one inference.’” K N Energy, Inc., 80 F.3d at 409 (quoting 1.M.A., Inc. v. Rocky Min.
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Airways, Inc., 713 P.2d 882, 887 (Colo. 1986) (en banc)). In this case, the evidence conclusively establishes that WINC was not a party to the termination agreement.
The termination agreement does not contain a single reference to WINC and nothing in the language raises any suggestion that WINC was a party to this agreement. In fact, the plain language of the termination agreement expressly negates the proposition that WINC was a party to the agreement. For example, the agreement states that it relates to Plaintiffs “employment with Wembley USA.” Exhibit A-11 (emphasis added). It further contemplates termination of employment by “the Company,” singular, rather than by multiple companies. /d. The fact that “the Company” referred to is WUSA rather than WINC is evidenced by a) reference to WUSA in the preceding sentence; b) printing of the agreement on WUSA letterhead; and c) execution of the agreement by Mr. Brents in his capacity as Chief Financial Officer of WUSA. See id. “*Each word in an instrument is to be given meaning if at all possible.”” Parsons, 272 B.R. at 753(quoting United States Fidelity & Guar. Co. v. Budget Rent-A-Car Sys., Inc., 842 P.2d 208, 213 (Colo. 1992)). When the agreement is viewed as a whole and the language is given its plain and ordinary meaning, it is clear that the contract is solely between Plaintiff and WUSA. Any contrary interpretation would not be in accord with the parties’ clearly expressed intent.
“Provisions of a contract cannot be enforced against those who are not parties to the contract.” Broderick v. McElroy & McCoy, Inc., 961 P.2d 504, 506 (Colo.App. 1997) (citing Frontier Airlines, Inc. v. United Air Lines, Inc., 758 F.Supp. 1399 (D.Colo. 1989)). See also E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 294 (2002) (“It goes without saying that a contract cannot bind a nonparty.”). Because WINC is not a party to the termination agreement, this entity
is not bound by its provisions. Jd. Accordingly, Plaintiff's claim against WINC for breach of
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contract fails as a matter of law, Klover, 64 F.Supp.2d at 1009, and summary judgment in favor of WINC on this claim is appropriate.
Il. WINC WAS NOT PLAINTIFF’S EMPLOYER.
Plaintiff asserts eight claims against WINC based on her contention that WINC was her employer. Specifically, these claims are her claims for defamation (second and fourth claims for relief), breach of contract (fifth claim for relief), Title VII claims for gender discrimination (sixth claim for relief) and unlawful retaliation (seventh claim for relief), wrongful discharge in violation of public policy (eighth claim for relief), witness retaliation in violation of Colo. Rev. Stat. § 8-2.5-101 (ninth claim for relief) and outrageous conduct (tenth claim for relief), Because Plaintiff has no evidence to support her contention that WINC was her employer, WINC cannot be held liable on these claims.
Plaintiff was hired as a WUSA employee in 1999. Emerson Depo. 9:8-9. WUSA is the wholly-owned subsidiary of WINC. Howard Aff. { 3. WINC does not have physical operations. Id. at] 6. It has no office and no employees. Jd. at { 7; Emerson Depo. 11:11; 104:7-11.
Rather, it is a holding company that is the ultimate U.S. parent to WUSA, as well as several other Rhode Island-based subsidiaries. Howard Aff. § 6. WINC’s primary function is to file consolidated U.S. tax returns on behalf of all of its subsidiary companies. Id.
During her tenure as a WUSA employee, Plaintiff performed job duties and accounting tasks relating to all of the Wembley-affiliated companies, including WINC and its several subsidiaries. Emerson Depo, 101:22-25; 102:1-8. Plaintiff believes that WINC was her
employer based on the fact that she performed work on behalf of WINC’s subsidiaries. Emerson
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Depo. 101:22-25; 102:1-9. Contrary to Plaintiff's belief, the law does not support the proposition that WINC was Plaintiffs employer.
A, WINC Does Not Qualify as an Employer Under Title VII.
WINC cannot be subject to Plaintiff's Title VII gender discrimination and retaliation claims unless it satisfies Title VII’s statutory definition of an employer. See Walters v. Metropolitan Educ. Enter., Inc., 519 U.S. 202, 205 (1997). “The term ‘employer’ means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. ...2 42 U.S.C. § 2000e(b).
There is no dispute that WINC did not employ “fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year...” See Howard Aff. 7; Emerson Depo. 11:11. Indeed, both the President of WINC and Plaintiff agree that WINC is merely a holding company that never had any employees. Jd. Accordingly, as a matter of law, WINC cannot be liable for Plaintiff’s Title VII discrimination and retaliation claims. See Castille v. Compliance Solutions Occupational Trainers, Inc., Case No. 02-1363, 2003 WL 245636, *1 (10" Cir. Feb. 4, 2003) (affirming dismissal of Title VII claim based on affidavit by company president and admission by Plaintiff that defendant did not have 15 employees). Therefore, summary judgment should be granted in favor of WINC on
Plaintiff's Title VII claims of unlawful discrimination and unlawful retaliation.
* Pursuant to D.C.COLO.L.CIVR. 7.1(D), copies of all unpublished decisions cited herein are attached as an Appendix.
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B. WINC Does Not Qualify as Plaintiff's Employer as to Plaintiff’s Other Claims Under Common Law Principles.
The question of whether WINC qualifies as Plaintiff's employer with regard to her remaining claims is governed by the common law of agency. In determining whether a hired party is an employee under the general common law of agency, the primary inquiry is whether the hiring party controls the means and manner by which work is accomplished. Lambertsen v. Utah Dep’t of Corrections, 79 F.3d 1024, 1028 (10th Cir.1996). Other relevant factors include the type of occupation and the skill required; the source of equipment and place of work; the length of time the individual has worked; whether the hiring party has the right to assign additional projects to the worker; the extent of the hired party’s discretion over when and how long to work; the method of payment; whether the work is part of the regular business of the hiring party; and the tax treatment of the hired party. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992). No single factor is dispositive. Id. at 324.
WINC did not control the means and manner by which Plaintiffs work was accomplished. There is no dispute that Plaintiff did not have an employment contract with WINC, that she was not paid by WINC, that she did not receive any employee benefits from WINC (Emerson Depo. 11:9-14; 98:20-25; 99:1-13; 102:13-25°; Howard Aff. { 8) and that WINC did not issue an employee handbook to Plaintiff governing the terms and conditions of her employment (Exhibit A-12; Emerson Depo. 103:1-6). While Plaintiff performed some job
duties for the benefit of WINC, those duties were limited. Plaintiff testified that the job duties
> While Plaintiff initially testified in her deposition that she “could not recall” or was “not sure” about whether she had a contract with WINC and whether she received pay and benefits from this entity, Emerson Depo. 98:20- 25;102:10-15, she also conceded that WINC would have evidence of these items if they existed. Emerson Depo. 102:16-25. Plaintiff has failed to produce any paychecks, W-2s, 1099s, employment contracts and evidence of benefits that she had with WINC, and WINC has confirmed, through a search of its records, that no such documents exist. Howard Aff. J 8.
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she performed for WINC were limited to tax planning and preparation, consolidation and budgeting activities, and that she only performed these duties from the late 1990’s through the fall of 2001. Emerson Depo. 99:16-25; 100:1-4. Furthermore, when Plaintiff performed these duties, she did not perform the work at any WINC-designated office, as no such office exists. Jd. at 104:7-11; Howard Aff. 7. Rather, she performed her work at the same office locations known as WUSA’s corporate offices. Emerson Depo. 104:7-11. Moreover, the persons to whom she allegedly reported at WINC, namely Skip Sherman, David Brents, Ty Howard, Jeff Goergen, Nigel Potter and Mark Elliott (Emerson Depo. at 104:25; 105:1-9,13-14) are the same superiors to whom she reported at WUSA (id. at 10:4-6; 12:1-7; 198:19; Howard Aff. 4 10). Plaintiff has no evidence to establish that she was reporting to these individuals in their capacities as officers or directors of WINC rather than in their capacities as her superiors at WUSA. Similarly, Plaintiff has no evidence that her superiors were exercising control over Plaintiff and her job duties in their capacity as officers or directors of WINC rather than in their capacity as her superiors at WUSA. For example, Plaintiff testified that the only person she received instruction from at WINC was Ty Howard, yet she also admitted that her contact with Mr. Howard could have been in his capacity as an officer of any of the Wembley companies. Emerson Depo. 106:5-25; 107:1-16. In sum, Plaintiff simply has no evidence to show that WINC was anything more than the parent company of her employer, WUSA. Accordingly, because Plaintiff has no facts to establish that WINC was her employer, WINC is entitled to
summary judgment in its favor on all claims Plaintiff has asserted against it.
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I. PLAINTIFF CANNOT ESTABLISH “OUTRAGEOUS CONDUCT” BY
DEFENDANTS.
“[V]ery few fact situations give rise to a cognizable claim for intentional infliction of emotional distress.” Rawson v. Sears Roebuck & Co., 530 F. Supp. 776, 780 (D. Colo. 1982), rev'd on other grounds, 822 F.2d 908 (10th Cir. 1987). This case is not one of them. Plaintiffs claim for outrageous conduct (ninth claim for relief) against WUSA and WINC fails as a matter of law because the alleged conduct supporting this claim does not begin to meet the threshold requirements for outrageous conduct.
“The tort of intentional infliction of emotional distress is extremely limited.” Katz v. City of Aurora, 85 F.Supp.2d 1012, 1020-1021 (D.Colo. 2000). A mere allegation by an employee that she was dismissed or demoted wrongfully, summarily, or in violation of the employer's policies and procedures fails to state a claim for outrageous conduct. Bellairs v. Coors Brewing Co., 907 F.Supp. 1448, 1459 (D.Colo.1995), aff'd, 107 F.3d 880 (10th Cir.1997). See also Grandchamp vy. United Air Lines, Inc., 854 F.2d 381, 384 (10th Cir.1988), cert. denied, 489 US. 1080 (1989) (discharge from employment, without more, is not intentional infliction of emotional distress). Nor are alleged defamatory remarks and discharge sufficient to support a claim of intentional infliction of emotional distress. See Steinberg v. Thomas, 659 F Supp. 789, 795 (D.Colo. 1987).
Instead, to establish a claim of outrageous conduct under Colorado law, a plaintiff must show conduct that is “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.” Rugg v. McCarty, 173 Colo. 170, 177, 476 P.2d 753, 756 (1970) (quoting
RESTATEMENT (SECOND) OF TORTS § 46, comment d). See also CJI-Civ.3d 23:2 (1998); Coors
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Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999); Katz, 85 F.Supp.2d at 1020. The “defendant’s conduct must be more than unreasonable, unkind or unfair; it must truly offend community notions of acceptable conduct.” Grandchamp, 854 F.2d at 383. Moreover, “liability ... does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” RESTATEMENT (SECOND) OF TorTSs § 46, cmt. d (1965). See also Shackelford v. Courtesy Ford, Inc., 96 F.Supp.2d 1140, 1147-1148 (D.Colo. 2000) (“While plaintiff may have felt strongly that she was treated unfairly, unprofessionally, and even rudely, those circumstances were mere insults, indignities, threats or annoyances, which fail to rise to the level of egregious conduct required to support an intentional infliction of emotional distress claim.”).
“Before permitting a plaintiff to present a claim for outrageous conduct to the jury, the trial court must initially rule on the threshold issue of whether the plaintiff's allegations of outrageous conduct are sufficiently outrageous as a matter of law.” Floyd, 978 P.2d at 665-666. See also Schnurr v. Board of County Comm'rs, 189 F.Supp.2d 1105, 1143 (D.Colo. 2001) (it is the court’s responsibility, as an initial matter, to determine whether reasonable persons could differ on the question of outrageousness). Colorado courts have routinely dismissed outrageous conduct claims as a matter of law where, as here, the alleged conduct cannot be viewed as outrageous in character. See, e.g. Card v. Blakeslee, 937 P.2d 846, 850 (Colo. App. 1996) (publication of false accusations of sexual abuse insufficient to support outrageous conduct claim); Zick v. Krob, 872 P.2d 1290, 1295 (Colo. App. 1993), cert. denied (1994) (breach of duty in administering estate insufficient to support outrageous conduct claim); Rubenstein v. South Denver Nat’! Bank, 762 P.2d 755, 757 (Colo. App. 1988), cert. denied (1989) (bank’s improper
disclosure of customer’s financial affairs and difficulties to third parties insufficient to support
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outrageous conduct claim); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo. 1988) (firing based on false claims of dishonesty insufficient to support outrageous conduct claim). This Court has also dismissed outrageous conduct claims where the evidence asserted in support of the claim is the same evidence relied upon to support a discrimination claim. See Katz, 85 F.Supp.2d at 1021 (dismissing outrageous conduct claim in part because factual allegations supporting the claim were no different from the factual allegations supporting ADEA and § 1983 claims); Visor v. Sprint/United Management Co., 965 F.Supp. 31, 33 (D.Colo. 1997) (dismissing outrageous conduct claim because the allegations forming the basis of the claim were the same as those forming the basis for Title VII retaliation claim). As explained by the Court in Visor:
The tort [of outrageous conduct] contemplates an extreme level of independently ascertainable misconduct from which the “ineluctable conclusion” is the calculated or reckless infliction of severe mental suffering. Gard v. Teletronics Pacing Sys., Inc., 859 F.Supp. 1349, 1354 (D.Colo. 1994) (applying Colorado law). It is not meant to be an "incantation to augment damages" in an employment discrimination or any other state or federal tort action. Id. Where the allegations forming the basis of a claim for outrageous conduct are the same as those forming the basis for a claim of discrimination, and nothing more, they fail to state an independently cognizable claim for which relief can be granted under Rule 12(b)(6).
Visor, 965 F.Supp. at 33 (emphasis added).
Here, the factual allegations supporting Plaintiffs outrageous conduct claim are insufficient as a matter of law. First, Plaintiff fails to assert any specific, independent allegations in support of this claim in her Complaint. Instead, Plaintiff simply “adopts and incorporates by reference all previous allegations” and then alleges that “Defendants Wembley’s conduct constituted extreme and outrageous conduct performed recklessly or with the intent of causing 92402.1 19
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the Plaintiff to suffer severe emotional distress.” FAC 9 85-87. Under this same scenario, this Court found such allegations legally insufficient to support a claim for outrageous conduct: Plaintiffs support their Sixth Claim for Relief for outrageous conduct by “incorporat[ing]”, by reference the allegations supporting their employment claims (see Am. Compl. { 52) and then adding that “Defendant's course of conduct as described in this [Amended] Complaint was extreme and outrageous” and “done with the intent of causing the Plaintiffs severe emotional distress.” (/d., {| 53-54). These allegations are insufficient to support an independent claim Sor outrageous conduct under Colorado law.
Visor, 965 F.Supp. at 33 (emphasis added).
The fact that Plaintiff is not alleging any misconduct that is “independently ascertainable” from the conduct alleged in support of her other claims is confirmed by her deposition testimony on this topic:
92402.1 MS. MIX:
You made a legal claim for outrageous conduct or intentional infliction of emotional distress in connection with this litigation. What conduct is it that you are contending caused you emotional distress?
MR. SHEFRIN: Object to the form. You can answer.
PLAINTIFF:
MS. MIX:
PLAINTIFF:
MS. MIX:
PLAINTIFF:
MS. MIX:
PLAINTIFF:
It was the continued and -- you know, continued treatment of me by Wembley PLC and by the top management of Wembley Inc.
What treatment?
Just ongoing. Every aspect of my work. They would criticize and complain or take away my responsibilities or not communicate with me or work around me or tell me I was a bad employee, and that my work was not adequate and just, you know, the whole -- what was it? -- 18 months between when Ty Howard came on board and I was finally terminated.
Is there any other conduct that you assert caused you to experience emotional distress?
I can't recall all the details at this time.
What you can recall of the conduct that caused you emotional distress, you've just testified about; is that right?
At this point, yes.
Page 21
Emerson Depo. at 191:15-25:192:1-12 (emphasis added). This is the exact same conduct Plaintiff alleges in support of her Title VII retaliation claim. See FAC § 69 (c)-(). Plaintiff is therefore improperly attempting to augment the damages of her retaliation claim with her outrageous conduct claim. For this reason alone, Plaintiffs claim fails as a matter of law. See Vice, 965 F.Supp. at 33.
Even if Plaintiff had not asserted this same conduct in support of her retaliation claim, however, this conduct simply does not rise to the level of outrageousness which is required under Colorado’s exacting standard. Taking as true Plaintiff's allegations that WUSA and WINC criticized her, complained about or to her, took away her job responsibilities, failed to communicate with her, worked around her, and told her she was “‘a bad employee, and that [her] work was not adequate,” for eighteen months, this conduct is simply not “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.” Coors Brewing Co., 978 P.2d at 666. Because no reasonable person could find that such conduct rises to the high level of outrageousness required by Colorado law, summary judgment in favor of WUSA and WINC on this claim is appropriate. See, e.g., Bauer v. Southwest Denver Mental Health Ctr., Inc., 701 P.2d 114, 118 (Colo.App. 1985) (“If, after viewing the evidence in the light most favorable to plaintiff, the court determines that no reasonable person could conclude that the defendant’s conduct was outrageous, summary judgment is appropriate.”’).
IV. PLAINTIFF ADMITS THAT SHE HAS NO EVIDENCE TO SUPPORT HER CLAIM FOR WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY.
Colorado adheres to the employment at-will doctrine, which provides that an employee
who is hired for an indefinite period of time “is an ‘at-will employee,’ whose employment may
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be terminated by either party without cause and without notice, and whose termination does not give rise to a cause of action.” Crawford Rehab. Serv., Inc. v. Weissman, 938 P.2d 540, 546 (Colo. 1997) (quoting Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987). Colorado recognizes a narrow exception to the at-will employment doctrine, however, where “the discharge of the employee contravenes a clear mandate of public policy.” Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 107 (Colo. 1992). In Lorenz, the Colorado Supreme Court acknowledged the public’s interest in prohibiting “an employer from placing an employee in the position of keeping a job only by performing an illegal act, forsaking a public duty, or foregoing a job-related right or privilege.” Lorenz, 823 P.2d at 109.
Pursuant to this exception, an at-will employee has a cause of action for public policy wrongful discharge if she can show that: “(1) the employer directed the employee to perform an illegal act as part of the employee’s work-related duties or prohibited the employee from performing a public duty or exercising an important job-related right or privilege; (2) the action directed by the employer would violate a specific statute relating to the public health, safety, or welfare, or would undermine a clearly expressed public policy relating to the employee's basic responsibility as a citizen or the employee’s right or privilege as a worker; (3) the employee was terminated as a result of refusing to perform the act directed by the employer or for exercising the privilege to which the employee was entitled; and (4) the employer was aware or reasonably should have been aware that the employee’s refusal to comply with the order or directive was based on the employee's reasonable belief that the action ordered was illegal, contrary to clearly
expressed statutory policy relating to the employee's duty as a citizen, or violative of the
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employee’s legal right or privilege as a worker.” Hoyt v. Target Stores, 981 P.2d 188, 190-191 (Colo.App. 1998) (citing Lorenz). See also Shackelford, 96 F.Supp.2d at 1145. In this case, Plaintiff has asserted a claim for wrongful discharge in violation of public policy (eighth claim for relief) against WUSA and WINC. In her deposition, however, Plaintiff admitted that she had no evidence to support the first element of this claim by testifying that neither WUSA nor WINC directed her to perform an illegal act or prohibited from performing a public duty or exercising a job-related right or privilege:
MS. MIX: Were you directed to perform an illegal act by Wembley USA or Wembley Inc. between April of 2001 and December of 2002?
PLAINTIFF: Not that I was aware of, because I would not have performed an illegal act.
kOe OX MS. MIX: Did anyone at Wembley USA or Wembley Inc. prohibit you from performing a public duty between April of 2001 and December of 2002?
MR. SHEFRIN: Object to the form.
PLAINTIFF: Not specifically; however, Mr. Howard requested that I provide them with all the details of my grand jury testimony, which was somewhat intimidating.
* OK
MS. MIX: In the context of your job, did anyone at Wembley USA or Wembley Inc. prohibit you from exercising a right or a privilege between April of 2001 and December of 2002?
PLAINTIFF: Not that I'm aware.
Emerson Depo. 194:17-21; 195:3-9, 20-24. Moreover, Colorado law requires proof of termination of employment to support a wrongful discharge claim. Hoyt, supra. Plaintiff admits that her employment was not terminated, but instead contends that she was “constructively discharged.” FAC § 42. No Colorado state court has determined that the doctrine of constructive discharge applies to public policy claims. The Practitioner ’s Guide to Colorado 92402.1 23
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Employment Law §7.3 (Sean R. Gallagher et al. eds., 2004). Plaintiff's admissions establish that she has no evidentiary or legal basis to support her claim of wrongful discharge and, accordingly, summary judgment in favor of WINC and WUSA on this claim is appropriate.
V. PLAINTIFF HAS NO EVIDENCE TO SUPPORT HER CLAIM UNDER COLO.
REV. STAT. § 8-2.5-101 FOR WITNESS RETALIATION.
Plaintiff's ninth claim for relief asserts a violation of Colo. Rev. Stat. § 8-2.5-101. Relevant to the circumstances here, this statute makes it “unlawful for any person. . . to take any action against its employees . . . solely for, testifying before a... court of law. . . at the request of such... court.” Colo. Rev. Stat. § 8-2.5-101(1)(a). A determinative factor for success of a claim under this statute is whether the action taken against the employee was taken solely because of the employee’s testimony. See Hoffler v. Colorado Dept. of Corrections, 27 P.3d 371, 376 n. 5 (Colo. 2001). In Hoffler, the Colorado Supreme Court expressly rejected the plaintiff/employee’s argument that her employer could not use false statements she made during an official government investigation as the basis of her termination of employment under §8-2.5- 101 because the court concluded that the “disciplinary action was not based on the sole fact that she provided testimony in a quasi-judicial proceeding” but rather because she “lied in the course of official departmental proceedings.” /d. (emphasis added). As in the Hoffler case, Plaintiff cannot establish that the sole basis of any alleged action taken against her was her testimony.
On February 13, 2002, Plaintiff provided testimony before the Rhode Island grand jury pursuant to a subpoena. See Exhibit A-13; Emerson Depo. 72:20-25. Her testimony concerned payments and expenditures made in relation to a WUSA-affiliated company located in Rhode Island. Emerson Depo. at 72:15-22; 196:3-14. Plaintiff admits that the events about which she
testified predated the hiring of Ty Howard as CEO of WUSA (and thus the hiring of Jeff
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Goergen, who was hired after Mr. Howard) and that she did not refer to either Jeff Goergen or Ty Howard during her testimony. /d. at 196:17-23. She also admits that, to her knowledge, no one at WUSA or WINC had any knowledge of the substance of her grand jury testimony. /d. at 196:24-25; 197:1-24. Nevertheless, Plaintiff claims that as a result of her testimony, WUSA and WINC retaliated against her. FAC 4 82. As to the basis of this claim, Plaintiff testified during her deposition as follows:
MS. MIX:
PLAINTIFF:
MS. MIX:
PLAINTIFF:
MS. MIX:
PLAINTIFF:
MS. MIX:
PLAINTIFF:
MS. MIX:
PLAINTIFF:
MS. MIX:
PLAINTIFF:
What job-related acts were taken against you after your testimony to the grand jury?
Almost immediately upon my return, Mr. Goergen told me that I was not doing a good job for the company and that I was insubordinate and unprofessional and threatened me with termination.
Are there any other acts that were taken against you after your grand jury testimony?
Not immediately.
Are there any other acts that were taken against you after your grand jury testimony at any time?
It appeared that the intimidation and harassment escalated after my grand jury testimony.
And why did it appear that way?
Because everything I said and everything I did seemed to be taken to task. And it became more and more difficult to do anything right.
And were all those things taken to task by Mr. Goergen?
Mr. Goergen was my supervisor, so yes, I would say it was.
koe Did Mr. Howard do anything to intimidate or harass you after your grand jury testimony?
Not that I'm aware of. Not directly.
Emerson Depo. at 197:25; 198:1-20; 199:6-8. According to this testimony, Plaintiff's position is that the action taken against her in retaliation for her grand jury testimony was the criticism of 92402.1
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her work performance and behavior and threats of termination by her supervisor, Mr. Goergen, which occurred immediately following her testimony and continued to escalate thereafter. Plaintiff, however, cannot show that Mr. Goergen’s critical treatment of her was related solely to her grand jury testimony.
The criticisms Plaintiff received from Mr. Goergen are well documented and not in dispute. Plaintiffs reference to a criticism immediately after her return from testifying refers to a February 15, 2002 e-mail sent by Mr. Goergen to Plaintiff. See Exhibit A-4. In this e-mail, sent two days after Plaintiff's testimony, Mr. Goergen addressed several concerns he had with Plaintiff's job performance and behavior, and stated that if her performance problems continued, Plaintiff would face additional disciplinary action, up to and including termination. Jd. There were additional criticisms of Plaintiff’s work performance and attitude problems by Mr. Goergen after February 15, 2002. Most, if not all, of these criticisms are documented in e-mails exchanged between Goergen and Plaintiff (see Exhibits A-5 and A-15) and in Plaintiff's job performance evaluation, dated November 5, 2002 (see Exhibit A-6). All of these subsequent criticisms presumably fall within the category of “intimidation and harassment” that Plaintiff alleges escalated after her grand jury testimony and provide the basis for Plaintiffs allegation that “everything I said and everything I did seemed to be taken to task” by Mr. Goergen. Emerson Depo. 198:9-20.
There are two reasons why this evidence cannot be used to support Plaintiffs claim under §8-2.5-101. First, Plaintiff has already taken the position that Mr. Goergen’s critical conduct toward her was not solely in response to her grand jury testimony. Specifically, in her filings
before the EEOC and in this action, Plaintiff has asserted that that this same conduct constituted
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retaliation for her complaints of gender discrimination and hostile work environment. For example, on June 3, 2002, Plaintiff filed a Charge of Discrimination with the EEOC alleging continuing gender discrimination and retaliation. See Exhibit A-8. As a part of the basis for her retaliation claim, Plaintiff stated in her charge that “on February 16, 2002, the new CFO told her that her work performance was ‘no good’ without explanation.” Jd. This statement, most likely a reference to the February 15, 2002 e-mail,’ is undoubtedly part of the “immediate action” Plaintiff claims that Mr. Goergen took against her. In further support of this charge, Plaintiff submitted a June 3, 2002 Affidavit to the EEOC, in which she referenced additional criticisms by Mr. Goergen: “May 20, 2002: New CFO picks apart Pat’s work, takes the information he needs . .. then finds fault with her work. Still no job description, nor explanation from New CFO about why my work is unsatisfactory, or what I must do to meet his approval.” Exhibit A-9 (emphasis added). Plaintiff also filed a third Charge of Discrimination with the EEOC on January 28, 2003, this time alleging only continuing retaliation for her complaints of gender discrimination. See Exhibit A-10. Plaintiffs verified statement in support of this charge is littered with references to Mr. Goergen’s criticisms of her job performance:
¢ “Prior to a leave of absence in October 2002 and continuing since my return, I
have had all my previous job duties removed under the guise of a
reorganization of the accounting department. ... When I asked my
supervisor, the Chief Financial Officer (CFO), how he would like this done,
he responded by saying I should not ask questions, that I should perform this
Junction without assistance from anyone and if I asked questions it demonstrated that I was incompetent.”
e “On November 5, 2002, I received my first negative performance evaluation in all of my ten years.”
“February 16, 2002 was a Saturday and there is no evidence of any communications between Plaintiff and Mr. Goergen on that weekend.
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e “In November 2002, J was admonished by the CFO for not presenting a solution to a wage violation issue in which mine and many other employees
(sic) paychecks were docked. ...
e “On or about December 6, 2002, I asked the CFO a question regarding a correction he made in my work in which he reclassified a capital improvement expense in violation of accounting policies. When I asked him his reasons for not following policy, I was told that I was insubordinate, unprofessional and that I should not waste his time asking him questions, and that it was not my place to request that he respond. ...”
e “On or about December 14, 2002, the CFO sent an e-mail attacking my competency... .”
e “On 7/17/02, when I returned from approved vacation, there was an e-mail sent while I was on vacation, -- pushing up (advancing) a reporting deadline that the CFO knew I could not meet because I was out of the office. The CFO then threatened me with termination for failure to meet the deadline.”
Id. Plaintiff also asserts in her Complaint that her unlawful retaliation claim is based in part on WUSA and WINC “provid[ing] the Plaintiff with her first ever negative performance evaluation” and “berat[ing] the Plaintiff with unprofessional attacks challenging her capabilities, skills and mental capacity.” FAC § 69. Likewise, in her resignation letter, Plaintiff states: “In response to filing an EEOC complaint for retaliation, you have made my work environment worse by: giving me my only poor evaluation . . . berating me . . . and demanding lengthy explanations simply so you could accuse me of wasting your time to read my explanations.” Exhibit A-2 (emphasis added). Finally, Plaintiff also testified in her deposition that part of the retaliation she suffered as a result of filing her EEOC charges was that she was “harassed and intimidated with the ultimate goal of obtaining my termination.” Emerson Depo. 179:4-8. Because Plaintiff has already taken the position that Mr. Goergen’s critical conduct toward her was in retaliation for
her complaints of gender discrimination, Plaintiff is now precluded from arguing that this same
conduct was taken solely in response to her grand jury testimony.
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Furthermore, Plaintiff cannot show that the criticisms she received from Mr. Goergen resulted solely from her grand jury testimony rather than her actual job performance problems. Indeed, the documentary evidence of the criticisms establishes that, in each instance, Mr. Goergen was addressing specific concerns he had with Plaintiff's job performance and lack of professionalism. See Exhibits A-4-A-6. For example, in the February 15, 2002 e-mail, Mr. Goergen stated that he was upset because Plaintiff turned in incomplete work without notifying him of that fact, that Plaintiff was not completing tasks assigned to her and that Plaintiff was unprofessional and insubordinate with regard to her responses to his questions. Exhibit A-4. The fact that Mr. Goergen had no knowledge as to the substance of Plaintiff's grand jury testimony at the time he drafted the e-mail (Emerson Depo. at 196:24-25, 197:1-24), and that, “[i]n the last month or so” prior to Plaintiff's testimony, Plaintiff and Mr. Goergen “had three different conversations about these concerns” (Exhibit A-4), strongly indicates that Mr. Goergen had real concerns about Plaintiff's job performance. Plaintiff has no evidence to contradict this inference. The February 15, 2002 e-mail illustrates this point with regard to all of the other documentary evidence of Mr. Goergen’s criticisms of Plaintiff, in which Mr. Goergen always addressed very specific concerns. See Exhibits A-4-A-6. Any contention by Plaintiff that Mr. Goergen’s criticisms were based solely on her grand jury testimony rather than her performance problems at work would be pure speculation on her part, which is not sufficient to overcome a motion for summary judgment. See Serliffv. Memorial Hosp., 850 F.2d 1384, 1393 (10th Cir. 1988) (“[w]e require more than pure speculation to defeat a motion for summary judgment.”). Plaintiff therefore has no claim under §8-2.5-101, Hoffler, 27 P.3d at 376 n. 5, and, accordingly,
summary judgment in favor of WUSA and WINC on this claim is appropriate.
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VI. PLAINTIFF CANNOT ESTABLISH THAT SHE WAS CONSTRUCTIVELY DISCHARGED.
Plaintiff relies upon her contention that she was constructively discharged to support several of her claims. For example, her claim for unlawful retaliation under Title VII (seventh claim for relief) is based on her contention that she was constructively discharged in retaliation for filing gender discrimination charges against WUSA with the EEOC. See FAC 9969, 71. In addition, it appears that Plaintiff is also relying on proof of constructive discharge to support her wrongful discharge in violation of public policy claim (eighth claim for relief), Title VII gender discrimination claim (sixth claim for relief) and violation of C.R.S. §8-2.5-101 claim (ninth claim for relief). Plaintiff, however, has no evidence to establish that her working conditions were so intolerable such that her resignation amounted to a constructive discharge.
As an initial matter, it should be noted that Colorado law does not recognize a “claim” for constructive discharge. Instead, the Colorado courts have adopted the “doctrine” of constructive discharge, which is simply an alternative method of proving termination of employment in support of certain types of claims alleging wrongs in the employment context, such as unlawful discrimination, breach of contract, or public employment wrongful discharge. Wilson v. Board of County Commissioners, 703 P.2d 1257, 1259 (Colo. 1985) (public employee asserts constructive discharge in support of claim for breach of employment contact); Koinis v. Colo. Dept. of Pub. Safety, 97 P.3d 193, 196 (Colo. App. 2003), cert. den. 8/16/04 (public employee asserts constructive discharge in support of claim for wrongful discharge); Olivarez v. Centura Health Corp., 203 F.Supp.2d 1218, 1225 (D. Colo. 2002) (private employee asserts
constructive discharge in support of claims for violation of 42 U.S.C. §1981 and Title VII).
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Moreover, the doctrine of constructive discharge has limited application in Colorado. The Colorado Court of Appeals has held that at-will employees may not assert constructive discharge in the absence of a “right to continued employment,” such as that granted by certain federal statutes. Krauss v. Catholic Health Initiatives, 66 P.3d 195, 203 (Colo. Apps. 2003) (“As an at-will employee, [plaintiff] must pair her constructive discharge claim with a right to continued employment, such as the anti-retaliation provision of the FMLA.”) (int. cits. om.) As one commentator notes, “No Colorado state court has expressly addressed whether the doctrine of constructive discharge applies to at-will employment in general or to pubic policy claims in particular.” The Practitioner’s Guide to Colorado Employment Law §7.3 (Sean R. Gallagher et al. eds., 2004).
Thus, Plaintiff's assertion of constructive discharge is properly viewed as an element of proof of three of her claims, all of which depend upon a “right to continued employment:” “unlawful discrimination” (sixth claim for relief), “unlawful retaliation” (seventh claim for relief), and “violation of C.R.S. §8-2.5-101” (ninth claim for relief). Because Plaintiff cannot prove that she was constructively discharged — which is an essential element of each of the above claims — each of those claims must be dismissed.
“Constructive discharge occurs when the employer by its illegal discriminatory acts has made working conditions so difficult that a reasonable person in the employee’s position would feel compelled to resign.’” Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1221 (10" Cir. 2002) (quoting Sanchez v. Denver Public Schools, 164 F.3d 527, 534 (10" Cir. 1998)). The bar is quite high in such cases: a plaintiff must show that she had no other choice but to quit. Jd In
determining whether an employee’s working conditions are so intolerable as to cause a
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reasonable person to feel compelled to resign, the court applies an objective test under which neither the employee’s subjective views of the situation, nor her employer’s subjective intent with regard to the discharge, are relevant. Tran v. Trustees of State Colleges in Colorado, 355 F.3d 1263, 1270 (10" Cir. 2004). “The question is not whether the employee’s resignation resulted from the employer’s actions, but whether the employee had any other reasonable choice but to resign in light of those actions.” Jd. “If an employee resigns of her own free will, even as a result of the employer’s actions, that employee will not be held to have been constructively discharged.” Jeffries v. State of Kansas, 147 F.3d 1220, 1233 (10" Cir. 1998).
In this case, Plaintiff resigned her employment on December 17, 2002, after her supervisor distributed the December 13 e-mail containing critical remarks about Plaintiff to several third parties. See Exhibits A-2, A-15; Emerson Depo. 146:14-16. In her resignation letter, Plaintiff claims that the circulation of the December 13 e-mail to third parties made her working conditions “unbearable.” Exhibit A-2. In her deposition, Plaintiff testified that the distribution of this e-mail, as well as her supervisor’s “practice of berating me whenever he could” from November 2001 through December 2002, left her with no choice but to resign. See Emerson Depo. 146:14-25; 147: 1-23. This conduct, even if taken as true, would not allow any reasonable jury to find that a reasonable person in Plaintiff's position would view the working conditions as so intolerable that she had no other choice but to resign.
First, a reasonable person in Plaintiffs position would not feel compelled to quit based on distribution of the December 13 e-mail. While Plaintiff may subjectively believe that the distribution of this e-mail made her working conditions intolerable, her own admissions establish
that a reasonable person would not agree. For example, Plaintiff admits that:
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° she cannot identify a single job she believes she would have gotten, but for the December 13 e-mail (Emerson Depo. Vol. II. 317:17-21);
° no one has told her that they think less of her because of the December 13 e-mail or that they feel that she is less competent than they thought before they saw the December 13 e-mail (/d. 331:17-25; 332:1-8);
° no one has told her that they respect her less as a result of reading the December 13 e-mail (/d. at 332:18-20); and that
° no one has told her that they believe she was guilty of misconduct or anything like misconduct as a result of reading the December 13 e-mail (dd. at 332:21-24),
Plaintiff's subjective views of the situation are irrelevant, Tran, 355 F.3d at 1270, and this testimony shows that Plaintiff has no evidence to establish that a reasonable person in her situation would feel compelled to resign. Indeed, the e-mail shows nothing more than the fact that she may have had a personal conflict with her supervisor, which is not sufficient to support a constructive discharge claim. See Muhleisen v. Principi, Case No. 02-1447, 2003 WL 21662028, * 5 (10" Cir. July 16, 2003) (evidence that employee’s subjective expectations were not met and that she had personal conflicts with supervisors and coworkers was insufficient to support claim of constructive discharge under Title VII).
Moreover, the criticisms Plaintiff received from her supervisor Jeffrey Goergen are insufficient to support a claim of constructive discharge. As stated above, these criticisms are well documented, and dealt with Plaintiff’s work performance problems and lack of professionalism. See Exhibit A-4, A-5 and A-15. Even if Plaintiff felt that Mr. Goergen was constantly “berating” her, the Tenth Circuit has already concluded that such constant criticisms by a supervisor do not rise to the level of intolerable working conditions sufficient to support a constructive discharge claim. See Walker v. United Parcel Service of America, Inc., 2003 WL
22101491, * 8 (10" Cir. Sept. 11, 2003) (supervisors’ alleged conduct of, inter alia, constantly
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criticizing and disciplining employee for minor infractions did not amount to constructive discharge under Title VII). Furthermore, the fact that Plaintiff worked with Mr. Goergen for more than a year despite his alleged constant berating supports the conclusion that no reasonable person, let alone Plaintiff, would find her working conditions intolerable. See Hogue v. MOS Inspection, Inc., 875 F.Supp. 714, 723 (D.Colo. 1995) (“timeliness of an employee’s resignation is an important factor in the constructive discharge equation.”) (int. quotation om.)
Plaintiff has failed to allege any facts in support of her constructive discharge claim that are sufficient to demonstrate, under an objective test, that a reasonable person would have viewed her working conditions as intolerable. Rather, the undisputed evidence clearly shows that Plaintiff resigned on her own accord. Therefore, her unlawful retaliation claim, which is based on her contention of constructive discharge, fails as a matter of law and summary Judgment should be entered in favor of WUSA and WINC on this claim. Cf Heno v. Sprint/United Management Co., 208 F.3d 847, 858-858 (10" Cir. 2000) (“In order to survive a motion for judgment as a matter of law on the constructive discharge claim, [plaintiff] ‘must allege facts sufficient to demonstrate under an objective test that a reasonable person would have viewed her working conditions as intolerable.” (quoting Jeffries, 147 F.3d at 1233)). In addition, the Court should rule, as a matter of law, that Plaintiff cannot allege constructive discharge in support of her gender discrimination claims or state law retaliation claims.
VII. PLAINTIFF’S CLAIM FOR DEFAMATION BASED ON CONDUCT BY DEFENDANT GOERGEN MUST FAIL.
In her second claim for relief, Plaintiff asserts a defamation claim against WUSA and
WINC based on Defendant Goergen’s conduct in inadvertently distributing an e-mail to persons
other than Plaintiff. FAC {j 46-49. WUSA’s and WINC’s liability for this claim is based on a
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vicarious liability theory. Jd. at {] 47-48. By its Order and Memorandum of Decision dated March 31, 2005, the Court granted Defendant Goergen’s Motion for Summary Judgment on Plaintiff's defamation claim against him, holding that Defendant Goergen’s statements did not constitute libel per se, as a matter of law. (Order of March 31, 2005, at p. 21.) Accordingly, WUSA and WINC request that the Court enter summary judgment in their favor on Plaintiff's second claim for relief.
CONCLUSION
For the foregoing reasons, Defendant Wembley Inc. respectfully requests that the Court enter an Order granting summary judgment against the Plaintiff and in its favor on all of Plaintiff's claims. Alternatively, Defendant Wembley Inc. joins Wembley USA, Inc. to respectfully request that the Court enter an Order granting summary judgment against the Plaintiff and in its favor on her claims of 1) breach of contract (fifth claim for relief); 2) outrageous conduct (ninth claim for relief); 3) wrongful discharge in violation of public policy (eighth claim for relief); 4) witness retaliation under Colo. Rev. Stat. § 8-2.5-101 (ninth claim for relief); 5) unlawful retaliation (seventh claim for relief); and 6) defamation (second claim for
relief).
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Dated this 17" day of August, 2005.
Respectfully submitted,
ile Zu:
isten L. Mix — NELL & WILMER Lv.
1200 Seventeenth Street, Suite 1900 Denver, Colorado 80202 Telephone: (303) 634-2000 Facsimile: (303) 634-2020
ATTORNEYS FOR DEFENDANTS
WEMBLEY USA, INC., WEMBLEY, INC., AND ROBERT TY HOWARD
92402.1 36
Page 37
Case 1:03-cv-01793-EWN-BNB Document 103 CERTIFICATE OF SERVICE Filed 08/17/2005 Page 37 of 37 The undersigned does hereby certify that on this 17th day of August, 2005, a true and correct copy of the foregoing BRIEF INSUPPORT OF WEMBLEY INC.’S RENEWED MOTION FOR SUMMARY JUDGMENT AND WEMBLEY USA, INC.’S RENEWED MOTION FOR PARTIAL SUMMARY JUDGMENT was served via ECF electronic filing on the following:
Attorneys for Plaintiff Robert A. Zupkus, Esq.
Bradley N. Shefrin, Esq.
Melissa Clack, Esq.
ZUPKUS & ANGELL, PC
555 E. 8" Ave.
Denver, CO 80203 Telephone: 303-894-8948 Facsimile: 303-894-0104 Attorneys for Defendant Jeffrey Goergen David H. Stacy, Esq.
DUCKER MONTGOMERY
& ARONSTEIN, P.C.
1560 Broadway, Suite 1400 Denver, CO 80202-5151 Telephone: (303) 228-2529 Facsimile: (303) 861-4017 92402.1 LAA auek\wuie, AA C
Martha McCleery
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