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Applegate v. Heath Consultants, Inc.

United States District Court, D. Colorado

August 1, 2017



          Richard P. Matsch, Senior District Judge.

         Retha Applegate and Ernest Applegate are married. Both were employed by Defendant Heath Consultants, Inc. ("Heath"), and both were fired on December 3, 2013.

         The Applegates filed this civil action in the District Court for the City and County of Denver on March 1, 2015, claiming age discrimination and retaliation under both the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623 etseq., and the Colorado Anti-Discrimination Act ("CADA"), C.R.S. § 24-34-402. Defendant Heath removed the case to this Court.

         After discovery, Heath moved for summary judgment of dismissal. That motion was fully briefed, and oral arguments were heard on July 18, 2017.

         Timeliness of Plaintiffs' EEOC Charge

         Heath contends that Plaintiffs failed to meet the ADEA requirement that an EEOC charge must be filed within 300 days of the alleged discriminatory action, which time expired on September 28, 2014. The EEOC received a letter from former counsel for the Applegates on September 29, 2014, a Monday. Counsel also sent an intake questionnaire for Retha Applegate, which alleges the discrimination complained of in this case. The letter stated its purpose was to file an administrative complaint on behalf of "Retha and Ernest Applegate, for age . . . discrimination, hostile workplace, and retaliation against their former employer, Heath Consultants, Inc., " and requested the agency issue a charge of discrimination. [Sept. 29, 2014 Letter, Ex. 2 to Pls.' Opp'n, Doc. 26-4 at 1, 4.] It is apparent that Plaintiffs' former lawyer was not aware of the appropriate procedure. Formal charges for both plaintiffs were filed on October 27, 2014. The EEOC treated the September 29, 2014 letter as a timely filed charge supplemented by the October 27 filings, and this Court accepts that decision as within agency discretion. See Semsroth v. City of Wichita, 304 F.App'x 707, 713-14 (10th Cir. 2008) (whether EEOC treated document as charge informs determination of whether such document can reasonably be construed as request for agency action).

         Undisputed Facts

         Defendant's brief in support of its summary judgment motion includes a statement of undisputed facts that Plaintiffs admitted, denied, and supplemented in their response. Based on those statements, the following facts are not in dispute:

         Defendant Heath is a manufacturer and consulting firm headquartered in Houston, Texas. Heath employs workers nationwide, including in Denver, Colorado. Plaintiff Retha Applegate began employment as an administrative assistant in Heath's Denver office on or about November 2, 2010 when she was fifty-three years old. Plaintiff Ernest Applegate began employment as a field technician in Heath's Denver office on or about August 10, 2010 when he was fifty-seven years old. Ms. Applegate formerly worked as a paraprofessional at Platte Canyon High School in Bailey, Colorado, where a school shooting incident occurred on September 27, 2006. That traumatic experience caused Ms. Applegate severe emotional distress (for which she sought and received medical treatment) and continuing emotional fragility.

         Ms. Applegate's responsibilities as an administrative assistant included making hard copies of data entries relating to Heath's payroll. On Friday, November 22, 2013, Ms. Applegate asked Heath project manager Keith Monnig for help making copies of the payroll data entries that needed to be submitted the following Tuesday. Mr. Monnig did not respond to Ms. Applegate's request for help. On Monday, November 25, 2013, Ms. Applegate again asked Mr. Monnig for help making the copies. Ms. Applegate left the office on Monday without making the copies that needed to be submitted to Heath's clients the following day. On the morning of Tuesday, November 26, 2013, Mr. Monnig summoned Ms. Applegate to his office to discuss her failure to complete the copying task.

         November 27, 2013 - Alleged Yelling in the Office

         On Wednesday, November 27, 2013, a Heath crew leader, Jason Camper, approached Ms. Applegate to inquire about an error on a technician's paperwork. She responded that she had already taken care of the error. In response to Mr. Camper's continued inquiries regarding the paperwork, Ms. Applegate pushed her chair away from her computer, put her hands up in a defensive manner, and said "Stop. Leave Me alone." Mr. Monnig immediately summoned Ms. Applegate to his office and admonished her for yelling in the office. After leaving Mr. Monnig's office, Ms. Applegate apologized to Mr. Camper. Ms. Applegate then returned to Mr. Monnig's office in some distress, and Mr. Monnig asked her to contact her husband, Mr. Applegate, to come pick her up and take her home for the day. Mr. Applegate arrived to take Ms. Applegate home, and Plaintiffs left the building. Mr. Applegate then returned to speak to Mr. Monnig about the incident; Mr. Applegate spoke to Mr. Monnig "in a loud voice" and asked Mr. Monnig to "step outside." Mr. Monnig did not respond, and Mr. Applegate left with his wife. Five Heath employees, including Mr. Monnig and Mr. Camper, completed "incident reports" concerning their observations of this incident.

         December 2-3, 2013 - Suspension and Termination

         When Plaintiffs returned to work on Monday, December 2, 2013 (after the Thanksgiving holiday), Mr. Monnig informed them that they were being placed on paid suspension as a result of their actions the previous week. Mr. Applegate twice responded that "we're not going down without a fight, " adding that "I haven't learned to grovel well." Two Heath employees, including Mr. Camper, completed incident reports regarding the events of Monday, December 2, 2013. When Plaintiffs arrived to work on Tuesday, December 3, 2013, Mr. Monnig told them that their employment with Heath was being terminated, effective immediately. Mr. Monnig then instructed Mr. Camper to summon the police to escort the Applegates from the property. Arapahoe County Deputy Sheriffs arrived. Their "offense report" states that upon the officers' arrival, one of the officers felt the need to pat Mr. Applegate down due to his "elevated demeanor, " which included "yelling and pacing." [Dec. 3, 2013 Offense Report, Ex. F to Def's Mot., Doc. 23-8 at 2.] According to the officer, he had to tell Mr. Applegate several times to lower his voice and quit yelling, and Mr. Applegate "appeared to be extremely angry [and] agitated." [Id. at 2-3.] The report further states that Ms. Applegate "began to hyperventilate, was unable to speak or make sense, and slumped to the asphalt and onto her side." [Id. at 3.] Accordingly, the officers called for an ambulance, and Ms. Applegate was eventually transported to the hospital. [Id.]

         Heath Employment Policy

         Heath maintains a "Personal Integrity and Conduct" policy whereby "employees are expected to conduct themselves in a manner that ensures a positive, safe, and efficient work environment." [Heath Employee Manual (2012 ed.), Ex. Gto Def's Mot., Doc. 23-9 at 9.] The policy further provides that "[i]mproper conduct may result in corrective action or, ...

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