United States District Court, D. Colorado
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
Richard P. Matsch, Senior District Judge.
Applegate and Ernest Applegate are married. Both were
employed by Defendant Heath Consultants, Inc.
("Heath"), and both were fired on December 3, 2013.
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.
discovery, Heath moved for summary judgment of dismissal.
That motion was fully briefed, and oral arguments were heard
on July 18, 2017.
of Plaintiffs' EEOC Charge
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).
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:
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.
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.
27, 2013 - Alleged Yelling in the Office
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.
2-3, 2013 - Suspension and Termination
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.
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