United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
Kristen L. Mix United States Magistrate Judge
This
matter is before the Court on Defendant's
Unopposed Motion to Dismiss Plaintiff's Third
Claim for Relief [#12][1] (the “Motion”).
Plaintiff filed a Response [#15] in which Plaintiff states
that she does not oppose the Motion. Defendant did not file a
reply. The Court has reviewed the Motion, the Response, the
entire case file, and the applicable law, and is sufficiently
advised in the premises. For the reasons set forth below and
given that the Motion is unopposed, the Court respectfully
RECOMMENDS that the Motion [#12] be
GRANTED.
Plaintiff
initiated this action against Defendant on September 30,
2018, asserting claims for discrimination on the basis of age
and wrongful termination pursuant to the Age Discrimination
in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§ 621, et seq. Compl. [#1] ¶ 1.1.
Plaintiff generally alleges that, despite being successfully
employed by Defendant for thirty years, she received
discriminatory treatment in the later stages of her
employment and was ultimately terminated by Defendant due to
her age. See Id. ¶¶ 4.1-4.10. Based on
Defendant's allegedly discriminatory conduct, Plaintiff
asserts the following three claims: (1) discriminatory
termination on the basis of age in violation of the ADEA; (2)
retaliation for making complaints of age discrimination in
violation of the ADEA; and (3) wrongful termination for
making complaints of age discrimination in violation of
public policy. Id. ¶¶ 5.1-5.27.
Defendant
filed the instant Motion [#12] on November 26, 2018, seeking
to dismiss with prejudice Plaintiff's third claim for
wrongful termination in violation of public policy.
Defendant
argues that Plaintiff's third claim must be dismissed
“because it is duplicative of her ADEA retaliation
claim and the ADEA already provides its own remedy for
retaliatory discharge.” Motion [#12] at 4.
Plaintiff's Response [#15] states, in its entirety:
Plaintiff, Brenda Van Newkirk (hereinafter referred to as
“Van Newkirk” or “Plaintiff”), by and
through her attorneys, Andrea S. Loveless, of Loveless Law
Firm, LLP, hereby submits its notice of non-opposition to the
Motion to Dismiss Plaintiff's Third Claim for Relief,
which was filed by Defendant Miller International, Inc. in
this action on November 26, 2018 (document 12).
Response [#15] at 1.
As
Defendant notes, “[t]he tort of wrongful discharge in
violation of public policy . . . ‘is grounded in the
notion that an employer should be prohibited from discharging
an employee with impunity for reasons that contravene widely
accepted and substantial public policies.'”
Basile v. Missionary Sisters of Sacred Heart of
Jesus-Stella Maris Province, No. 11-cv-01827-REB-KMT,
2011 WL 5984752, at *2 (D. Colo. Nov. 30, 2011) (quoting
Crawford Rehabilitation Services, Inc. v. Weissman,
938 P.2d 540, 552 (Colo.1997)).
“However,
no wrongful discharge claim may lie when the statute on which
it is premised already provides a remedy for discriminatory
or retaliatory discharge.” Spaziani v. Jeppesen
Sanderson, Inc., No. 14-cv-03261-REB-KMT, 2015 WL
5307971, at *3 (D. Colo. Sept. 11, 2015); see e.g.,
Basile, 2011 WL 5984752, at *2 (D. Colo. Nov. 30, 2011)
(claim for wrongful discharge in violation of public policy
preempted by ADEA and finding “where a statute already
provides a remedy for wrongful termination, the tort is
unavailable, as the courts in this district have unanimously
concluded”); Hein v. AT&T Operations,
Inc., No. 09-cv-00291-WYD-CBS, 2010 WL 5313526, at *6
(D. Colo. Dec. 17, 2010) (“Colorado courts have
expressly disallowed a wrongful discharge in violation of
public policy claim where the statute provides a wrongful
discharge remedy.”); Gorkin v. Vinnell Corp.,
No. 03-cv-02287-WDM-PAC, 2006 WL 517645, at *5 (D. Colo. Mar.
2, 2006) (“This court has held . . . that a claim of
wrongful discharge is not available where a statute, such as
Title VII, provides the employee with a remedy.”);
Caspar v. Lucent Tech., Inc., 280 F.Supp.2d 1246,
1249 (D. Colo. 2003) (“Given the availability of
Caspar's Title VII remedies, therefore, Colorado
authority indicates the wrongful discharge claim is not
available.”); Krauss v. Catholic Health Initiatives
Mountain Region, 66 P.3d 195, 203 (Colo.App. 2003)
(employee could not base wrongful discharge claim on the FMLA
because the FMLA provided retaliatory discharge remedy).
Here,
Defendant correctly observes that Plaintiff's ADEA claim
for retaliation is premised on the same allegation as her
state law claim for wrongful termination in violation of
public policy. See Motion [#12] at 4. In her ADEA
retaliation claim (claim two), Plaintiff alleges that
Defendant retaliated against her due to her “opposition
to activities prohibited by the ADEA.” Compl.
[#1] ¶ 5.16. In her claim for wrongful discharge in
violation of public policy (claim three), Plaintiff alleges
that she was terminated for “asserting a legal right
pursuant to the ADEA, opposing discrimination on the basis of
age.” Id. ¶ 5.23. Accordingly, pursuant
to the above authority and Plaintiff's non-opposition, IT
IS HEREBY RECOMMENDED that the Motion [#12]
be GRANTED and that Plaintiffs claim for
wrongful termination in violation of public policy (claim
three) be dismissed with prejudice based on
the parties' agreement. See Response [#15] at 1.
IT IS
FURTHER ORDERED that pursuant to
Fed.R.Civ.P. 72, the parties shall have fourteen (14) days
after service of this Recommendation to serve and file any
written objections in order to obtain reconsideration by the
District Judge to whom this case is assigned. A party's
failure to serve and file specific, written objections waives
de novo review of the Recommendation by the District Judge,
Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140,
147-48 (1985), and also waives appellate review of both
factual and legal questions. Makin v. Colo. Dep't of
Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley
v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A
party's objections to this Recommendation must be both
timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United
States v. One Parcel of Real Prop., 73 F.3d 1057, 1060
(10th Cir. 1996).
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Notes:
[1] “[#12]” is an example of
the convention the Court uses to identify the docket number
assigned to a specific paper by the Court's case
management and electronic case filing system (CM/ECF). This
...