United States District Court, D. Colorado
For Equal Employment Opportunity Commission, Plaintiff: David Andrew Winston, LEAD ATTORNEY, U.S. Equal Employment Opportunity Commission-Denver, Denver, CO.
For CollegeAmerica Denver, Inc., other Center for Excellence in Higher Education, Inc., doing business as CollegeAmerica, Defendant: Raymond W. Martin, LEAD ATTORNEY, Craig Ruvel May, Thomas Eilif Miller Werge, Wheeler Trigg O'Donnell, LLP, Denver, CO.
MEMORANDUM OPINION AND ORDER
LEWIS T. BABCOCK, JUDGE.
This case is before me on Defendant CollegeAmerica Denver, Inc's (" CollegeAmerica" ) Motion to Dismiss Complaint [Doc # 6]. After consideration of the motion, all related pleadings, and the case file, I grant CollegeAmerica's motion in part and deny it in part.
This action arises out of Charging Party Debbi Potts' (" Potts" ) employment as campus director for CollegeAmerica's Cheyenne, Wyoming campus from January 9, 2009 until her resignation on July 16, 2012. Complaint, ¶ 6. On September 1, 2012, after her resignation, Potts and CollegeAmerica entered into an agreement (the " Agreement" ) which provides in pertinent part as follows:
CollegeAmerica ... agree[s] to:
1.) Pay Potts $7,000.00.
3.) Hold Potts harmless for initiating contact with agencies prior to September 1, 2012.
Potts agrees to:
1.) ... refrain from personally (or though the use of any third party) contacting
any governmental or regulatory agency with the purpose of filing any complaint or grievance that shall bring harm to CollegeAmerica ....
3.) To not intentionally with malicious intent (publicly or privately) disparage the reputation of CollegeAmerica....
See Ex. 1 to Complaint.
By letter dated January 11, 2013, CollegeAmerica notified Potts that it considered emails she had exchanged with another of its former employees to be in violation of the Agreement's non-disparagement clause and demanded the return of its $7,000 payment to her. Complaint, ¶ 14. On January 25, 2013, Potts filed the first of three charges of discrimination against CollegeAmerica with the EEOC. Complaint, ¶ 15. CollegeAmerica received notice of Potts' first charge on March 18, 2013 and filed suit against Potts alleging breach of the Agreement's non-disparagement clause in state court on March 25, 2013 (the " State Court Action" ). Complaint, ¶ ¶ 16 & 17.
Potts filed her second and third charges of discrimination against CollegeAmerica with the EEOC on April 8, 2013 and December 18, 2013, respectively. Complaint, ¶ ¶ 18 & 23. In connection with Potts' discrimination charges, CollegeAmerica provided the EEOC with four Separation and Release Agreements (the " Separation Agreements" ) that it has routinely used since 2012. Complaint, ¶ 24. All of these agreements include a release of claims provision and a non-disparagement clause. Complaint, ¶ ¶ 25-31.
On December 20, 2013, the EEOC issued a Letter of Determination finding reasonable cause to believe that CollegeAmerica had engaged in unlawful employment practices in violation of the Age Discrimination in Employment Act (the " ADEA" ). Complaint, ¶ 33. The parties efforts to resolve the matter through conciliation were unsuccessful. Complaint, ¶ 34.
On April 30, 2014, the EEOC filed this action and asserted three claims against CollegeAmerica: (1) a claim asserting that CollegeAmerica, through the Agreement, denied Potts the full exercise of her rights under the ADEA and interfered with the statutorily assigned responsibility of the EEOC and state Fair Employment Practices Agencies' (" FEPAs" ) to investigate charges of discrimination in violation of Section 7(f)(4) of the ADEA, 29 U.S.C. § 626(f)(4), Complaint ¶ ¶ 38-39; (2) a claim asserting that CollegeAmerica, through the Separation Agreements, denied other employees the full exercise of their rights under the ADEA and interfered with the statutorily assigned responsibility of the EEOC and FEPAs to investigate charges of discrimination in violation of Section 7(f)(4) of the ADEA, Complaint ¶ ¶ 41-42; and (3) a claim asserting the CollegeAmerica retaliated against Potts by filing the State Court Action in violation of Section 4(d) of the ADEA, 29 U.S.C. § 623(d), Complaint ¶ ¶ 44-46.
College America seeks the dismissal of all of the EEOC's claims arguing that the Court lacks jurisdiction to hear the EEOC's first two claims and that all of the EEOC's claims fail ...