Apodaca v. Colorado Nonprofit Development Center

BRIEF in Opposition to 67 Partial MOTION to Dismiss Plaintiff's Amended Verified Complaint

D. Colo.February 23, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 16-CV-00383-MSK-STV JERILYN E. APODACA, Plaintiff, v. COLORADO NONPROFIT DEVELOPMENT CENTER d/b/a FAMILIES FORWARD RESOURCE CENTER, a Colorado Non-Profit Corporation in Good Standing, Defendant. ___________________________________________________________________________ VERIFIED BRIEF IN OPPOSITION TO DEFENDANT’S PARTIAL MOTION TO DISMISS PLAINTIFF’S AMENDED VERIFIED COMPLAINT ____________________________________________________________________________ COMES NOW, Plaintiff Jerilyn Apodaca, by and through her attorneys, and files the within Brief in Opposition to Defendant’s Partial Motion to Dismiss Plaintiff’s Amended Verified Complaint (Motion) [#67] seeking to have this Honorable Court to deny the Motion. AS GROUNDS THEREFOR, Plaintiff states as follows: I. SUMMARY Ms. Apodaca, a mandatory reporter, was wrongfully terminated in violation of public policy for reporting her reasonable belief that children receiving services from Defendant Colorado Nonprofit Development Center (CNDC) were subject to abuse because their mother was engaged in prostitution. CNDC was providing supervised visitation services to the children because they had been raped by an unknown person or persons and consequently removed from her home. CNDC’s Executive Director called Ms. Apodaca in from her sick bed to be terminated while she was on authorized medical leave from Defendant to have and recover from a hysterectomy. She had not been cleared to drive at that time. CNDC so far has alleged at Case 1:16-cv-00383-MSK-STV Document 72 Filed 02/23/17 USDC Colorado Page 1 of 12 different times that Ms. Apodaca was i) terminated because she performed her job poorly; ii) her reporting threatened CNDC’s contract with Denver Department of Human Services (DHS); iii) she shouldn’t have reported while she was recovering from surgery and on pain killers, and iv) she showed poor judgment by failing to notify the Executive Director of Families Forward Resource Center (FFRC) before making the report. Each of the reasons for Ms. Apodaca’s termination cited by CNDC is a pretext: prior to her termination she repeatedly had complained that a subordinate male coworker, Ron Allen, was being paid more than she. Initially Allen was performing a job requiring less experience, training, knowledge, and skill with far less responsibility than the position Ms. Apodaca held. After Allen was promoted to co-director of programs CNDC continued to pay him more than Ms. Apodaca despite the fact that she already had five years of experience in the position. Ms. Apodaca mentioned the ongoing breach of the Equal Pay Act in her January verbal performance review with Bechhoefer. Ms. Apodaca was given a five percent raise in that review to bring her pay more in line with Allen’s pay. She was terminated within 60 days of that meeting but had not received the promised raise. CNDC honored the raise, retroactive to February 1, 2015, after Ms. Apodaca’s job was terminated. CNDC admitted in deposition that the raise was given to make Ms. Apodaca’s pay more commensurate with Allen’s, an admission against interest that it was in violation of the EPA. Defendant brought its motion to dismiss arguing that the FAC should be partially dismissed on the mistaken belief that Plaintiff did not properly allege the elements supporting her Fourth and Fifth claims against CNDC. Plaintiff’s allegations in support of her Fourth and Fifth claims render them plausible and meet each and every element of claims for intentional infliction of emotional distress and for exemplary damages. CNDC also argues that because there is no express or implied right to bring a civil action pursuant to the Child Protection Act, CRS §19-3- 301, et seq. (the “Act”), Ms. Apodaca cannot bring a claim pursuant to it. It is precisely because Case 1:16-cv-00383-MSK-STV Document 72 Filed 02/23/17 USDC Colorado Page 2 of 12 there is no statutory remedy in the Act that she may bring her claim for wrongful termination in violation of public policy. Ms. Apodaca does agree that her second and third claims for relief are redundant, and she proposes that those claims be merged, reducing her claims from five to four, as set out in her Second Amended Verified Complaint filed contemporaneously herewith. II. FACTS 1. On March 6, 2015, exactly two weeks after an hysterectomy, Ms. Apodaca was sent a text message by Bechhoefer directing her to report to CNDC’s office at 8:30 a.m. on March 9, 2015, to discuss “Aubri’s client.” FAC ¶22, Ex. 1. 2. The principals of CNDC were aware of her surgery, including the fact that Ms. Apodaca was having a hysterectomy because of stage four cancerous cells. Ex. 2. 3. Ms. Apodaca had not yet been cleared to drive by her surgeon on March 9, 2015, but she believed the text message from Bechhoefer was urgent, so she drove to the office. 4. The text message from Bechhoefer did not inform Ms. Apodaca that he was calling her in to terminate her employment. 5. The allegations supporting Ms. Apodaca’s claims for intentional infliction of emotional distress and exemplary damages are set out at FAC ¶¶22, 24, 25-27, 50-57, and 59. III. STANDARD OF REVIEW A. AMENDMENT OF PLEADINGS Fed.R.Civ.P. 1 provide that they are to be construed “to secure the just, speedy, and inexpensive determination of every action.” Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962). In Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009), the Tenth Circuit analyzed the circumstances in which a complaint may be modified: Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S. W., Inc., 3 F.3d 1357, 1365 (10th Cir. 1993); Case 1:16-cv-00383-MSK-STV Document 72 Filed 02/23/17 USDC Colorado Page 3 of 12 cf. U.S. ex rel. Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir. 2009). [In the Tenth Circuit trial courts have ‘wide discretion to recognize a motion for leave to amend in the interest of a just, fair or early resolution of litigation.’ Calderon v. Kan. Dep't of Soc. & Rehab. Servs., 181 F.3d 1180, 1187 (10th Cir. 1999) (quotations omitted). ‘Rule 15 ... was designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result.’ United States v. Hougham, 364 U.S. 310, 316, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960). Typically, courts will find prejudice only when an amendment unfairly affects non-movants ‘in terms of preparing their [response] to the amendment.’ Minter v. Prime Equipment Co., 451 F.3d 1196, 1208 (10th Cir. 2006) (quoting Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971)). See also Rehberg v. City of Pueblo, 10-CV-00261-LTB-KLM, 2011 WL 4102287, at *2 (D. Colo. Sept. 14, 2011). B. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY FOR EXERCISING A RIGHT OR DUTY. “[A]n employer incurs liability to an employee by discharging that employee in violation of the state's public policy, if the public policy involved is reflected in a statute that creates a specific right or duty.” Lathrop v. Entenmann's, Inc., 770 P.2d 1367, 1372 (Colo.App. 1989). The elements for a claim of wrongful termination in violation of public policy for exercising a right or duty are set out at Colo. Jury Instr., Civil (4th), §31:13: 1. During the course of employment, plaintiff (describe the action, omission, or conduct of plaintiff that was (1) an exercise of a statutory, regulatory, or rule-based right relating to public health, safety, or welfare, or (2) a performance of a public duty relating to plaintiff's basic responsibility as a citizen, or (3) an exercise of an important work-related right or privilege) because (he) (she) (reasonably believed [he][she]) had a right to (follow the [statute] [regulation] [rule]) (perform [his] [her] duty as a citizen) (exercise [his] [her] right or privilege as a worker); 2. The defendant was aware or reasonably should have been aware that plaintiff (reasonably believed [he] [she]) had a right to (follow the [statute] [regulation] [rule]) (perform [his] [her] duty as a citizen) (exercise [his] [her] right or privilege as a worker); and 3. The defendant (constructively) discharged the plaintiff because the plaintiff (followed the [statute] [rule] [regulation]) (performed [his] [her] duty as a citizen) (exercised [his] [her] right or privilege as a worker). Case 1:16-cv-00383-MSK-STV Document 72 Filed 02/23/17 USDC Colorado Page 4 of 12 C. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Colo. Jury Instr., Civil (4th), §23:1, sets forth the elements of a claim for intentional infliction of emotional distress as follows: For the plaintiff, (name), to recover from the defendant, (name), on (his) (her) claim of extreme and outrageous conduct, you must find all of the following have been proved by a preponderance of the evidence: 1. The defendant engaged in extreme and outrageous conduct; 2. The defendant did so recklessly or with the intent of causing the plaintiff severe emotional distress; and 3. The defendant's conduct caused the plaintiff severe emotional distress. See also, Llewellyn v. Shearson Fin. Network, Inc., 622 F. Supp. 2d 1062, 1068 (D. Colo. 2009); Archer v. Farmer Bros. Co., 70 P.3d 495, (Colo.App. 2002), aff'd, 90 P.3d 228 (Colo. 2004); Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 754 (1970); Restatement (Second) of Torts §46 (1965). D. EXEMPLARY DAMAGES In Colorado, so long as a plaintiff is awarded actual damages, punitive damages may be assessed by the jury if the defendant engages in fraudulent, malicious, or willful and wanton conduct. C.R.S. §13-21-102(1)(a). The statute defines “willful and wanton conduct” as “conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff.” C.R.S. §13-21-102(1)(b). The decision to award exemplary damages rests with the jury but only where the trial court determines that plaintiff has stated a prima facie case for amending a complaint to add such claim. Id. IV. ARGUMENT A. THE COURT PROPERLY GRANTED MS. APODACA’S AMENDMENTS AS SET OUT IN THE FAC AND SIMPLY MERGING THE SECOND AND THIRD CLAIMS WILL ELIMINATE REDUNDANCY. Case 1:16-cv-00383-MSK-STV Document 72 Filed 02/23/17 USDC Colorado Page 5 of 12 Foman, supra., stands for the proposition that mere technical formalities should not prevent a plaintiff from having her legitimate claims heard. Ms. Apodaca has not attempted to shift her theories of liability so as to create a “moving target” of her claims in order to make defense of the case difficult for CNDC. Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006). Her claims always have been directed at CNDC’s violation of the Equal Pay Act (EPA) and retaliation against her for seeking pay equal to that of Allen and to recover for her egregious treatment by CNDC. Nor is she attempting to “salvage a lost case by untimely suggestion of new theories of recovery.” Id. She is not presenting different theories seriatim to avoid dismissal, nor has she knowingly delayed raising an issue until the eve of trial.” Id. [citations omitted]. Mr. Cohen clearly has had difficulty pleading Ms. Apodaca’s claim for wrongful termination in violation of public policy, a claim established in her original complaint pursuant to Fed.R.Cov.P. 8(a). See Maj. Vatholak’s Minute Order issued on December 2, 2017 [#53]. The merger of Claims 2 and 3 in the FAC, as proposed in the SAC filed herewith, will eliminate this redundancy and clearly state Ms. Apodaca’s claim for wrongful termination in violation of public policy. B. MS. APODACA STATES A PLAUSIBLE CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. 1. CNDC’s Refusal to Confirm Termination of Employment Was Outrageous. Ms. Apodaca had been homeless for several months when she sent a copy of a request for confirmation that she was no longer employed by CNDC. CNDC, which is in the business of helping people in need, including assisting their clients in finding affordable housing, failed and refused to assist her in being able to move into an apartment. When plaintiff’s counsel, Mr. Schaefer emailed defense counsel Sweeney regarding this situation, Mr. Sweeney replied, “I'm sure that you must understand that suing someone generally does not endear you to them or Case 1:16-cv-00383-MSK-STV Document 72 Filed 02/23/17 USDC Colorado Page 6 of 12 justify personal assistance.” This failure to act demonstrates CNDC’s malice against Ms. Apodaca and demonstrates its intentional or reckless disregard for Ms. Apodaca’s emotional well-being. CNDC misrepresents the claim when they argue that Ms. Apodaca relies solely on this incident to state her claim for intentional infliction of emotional distress. CNDC has demonstrated a penchant for retaliatory terminations. 2. CNDC Terminated Ray Maestas in Retaliation for Speaking with Plaintiff’s Counsel. Ray Maestas was an employee of CNDC for many years, including 2012 until July 29, 2016, when he was summarily “laid off” the day after he spoke with Plaintiff’s counsel, Mr. Cohen. Ex. 3. Mr. Cohen called Mr. Maestas on July 28, 2016, to confirm whether Ron Allen had delegated home service work to Mr. Maestas for which Allen was receiving additional pay to provide personally. Ex. 3.1 When he came into work on July 29, 2016, he was met by Allen and Bechhoefer, who told him they had to take all of his cases and files from him and he no longer was permitted to communicate with any of his clients because DHS demanded it. Id. Bechhoefer called Mr. Maestas a couple weeks later and told him at that time that he had been laid off and his work was unacceptable. Id. Mr. Maestas had recently been given a favorable performance review and a raise. Id. This situation is similar to Ms. Apodaca’s treatment and supports a pattern of retaliatory termination on a pretext for troublesome employees. The closer in time an adverse employment action is taken after an employee engages in a protected activity, “the more likely it will support a showing of [retaliation].” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999). Mr. Maestas informed Allen and Bechhoefer that he spoke with Mr. Cohen on July 28, 2016, and those gentlemen terminated Mr. Maestas on July 29, 2016. The immediate termination of Mr. Maestas establishes an effectively 1 Due to a technical glitch, Mr. Maestas’ fully executed Declaration is not available from my home computer. The fully executed copy will be filed in the morning of February 23, 2017. An unsigned version is attached hereto. Case 1:16-cv-00383-MSK-STV Document 72 Filed 02/23/17 USDC Colorado Page 7 of 12 conclusive presumption that Mr. Maestas was terminated for daring to support Ms. Apodaca. It also demonstrates that CNDC is not beyond terminating employees vindictively for improper reasons. 3. The Manner in Which Ms. Apodaca was Terminated was Outrageous, and the FAC set out adequate facts to support each of the three elements of such claim. CNDC erroneously argues in its Motion that “The Amended Complaint does not set forth any facts to demonstrate that CNDC engaged in conduct that was so outrageous in character that it goes beyond all possible bounds of decency and is utterly intolerable in a civilized community.” In so doing, CNDC ignores the circumstances surrounding her termination and its refusal to assist her in acquiring affordable housing. Ms. Apodaca’s termination by CNDC is comparable to that of the plaintiff in Archer, supra. In Archer, supra., Archer, a car salesman, had worked at Farmer Brothers for 22 years and performed well. Archer was being investigated for alleged misconduct and suffered an apparent heart attack. He was terminated while on his sick bed by two of his supervisors on the orders of a vice president of the dealership where they all were employed. All three of these persons were aware that Archer suffered a serious medical condition. They entered the house without knocking, handed Archer his check, terminated him, and took the keys to the company van. Archer became visibly upset, told them to get out of his house immediately, and attempted suicide later that day. See also, Riske v. King Soopers, 366 F.3d 1085, 1089 (10th Cir. 2004). The standard for finding outrageous conduct is high, and the Court first must make a threshold determination as to the legal sufficiency of the claim. Archer, 70 P.3d at 499. In making that determination the Court must construe the factual allegations supporting the claim in the light most favorable to the nonmoving party. Id. At the time of her termination Ms. Apodaca had worked at CNDC for 11 years and had served as a Director for almost six years. Ms. Apodaca’s superiors at CNDC knew that on Case 1:16-cv-00383-MSK-STV Document 72 Filed 02/23/17 USDC Colorado Page 8 of 12 February 27, 2015, Ms. Apodaca was on sick leave after a total hysterectomy, Higgs Depo. 29:12-30:5; 33:22-25. During her tenure at CNDC, Ms. Apodaca made many calls to report her reasonable belief that there had been or likely would be child abuse, never conferred with Bechhoefer before so doing, and never before had been criticized for her reporting. Melinda Higgs, CNDC’s President and CEO, Higgs Depo., 13:10-11, testified in her 30(b)(6) deposition that there never had been a problem with any reporting of child abuse by CNDC employees other than Ms. Apodaca’s report regarding VV’s2 circumstances. Higgs Depo. 29:1-6. When Bechhoefer summoned her to the office in his text message of March 6, 2015, he did not inform Ms. Apodaca that she was being called in to be terminated. Ex. 1. He did know at that time that she was at home recovering from an hysterectomy. Bechhoefer Depo., 110:5-13. When Ms. Apodaca came into the meeting, it was a complete shock to her that she was being terminated. After all, she had just had a favorable performance review from Bechhoefer and been given a raise. Higgs Depo., 102:11-14. A reasonable person would understand that a woman recovering from a total hysterectomy would be emotionally very fragile, especially someone who works for a non-profit human services provider. A year later, when Ms. Apodaca told CNDC her circumstances and requested that it confirm that she no longer worked there so she could get an apartment and stop living out of her car, CNDC refused to do so. Here “reasonable persons could disagree about whether the requisite level of outrageousness had been shown and whether [CNDC] engaged in such conduct recklessly . . . to cause [Ms. Apodaca] severe emotional distress.” Id. The circumstances of Ms. Apodaca’s termination and CNDC’s refusal simply to confirm that she no longer was employed there demonstrate that none of those who acted on behalf of CNDC took her medical and emotional condition into consideration and acted with actual malice toward her. The outrageousness of 2 VV used the pseudonym “Juicy Jennifer” in the Back Page postings. Case 1:16-cv-00383-MSK-STV Document 72 Filed 02/23/17 USDC Colorado Page 9 of 12 CNDC’s conduct here is in stark contrast to its raison d’etre: providing services to families in need of assistance. Higgs Depo, 26:14-18(“Our exempt purpose is to improve the quality of life in Colorado.”). Part of the services provided by FFRC is finding housing for its clients. Bechhoefer Depo. 194:21-195:1 A series of acts may constitute outrageous conduct, even though any one of the acts might be considered only an isolated unkindness or insult…. However, a single incident may constitute outrageous conduct if the incident would be so regarded by a reasonable member of the community…. The extreme and outrageous character of conduct may arise from a person's knowledge that another is peculiarly susceptible to emotional distress because of some physical or mental condition or peculiarity. The same conduct without that knowledge might not be extreme and outrageous…. Colo. Jury Instr., Civil (4th), §23:2; Archer, supra. CNDC’s knowledge that Ms. Apodaca was on her sick bed after a hysterectomy when they retaliated against her for reporting VV’s prostitution to DHS and that she was homeless when they refused to help her obtain an apartment would inform a reasonable member of the community that she was peculiarly susceptible to emotional distress. The fact that CNDC refused to perform a ministerial act to help her obtain a place to live simply because it terminated her comprises malice. The common meaning of the word “malice” is “desiring or wishing pain, injury, or distress to another.” Webster’s New Collegiate Dictionary 8th Ed., (1977) 660.3 CNDC mistakenly argues that Ms. Apodaca must set out specific facts describing the nature of her emotional distress. “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012)[punctuation and citation omitted]. Unlike the plaintiff in Khalik, Ms. Apodaca provides the details of events leading up to her 3 Where a “word at issue is a term of common usage, and people of ordinary intelligence need not guess at its meaning, we may refer to dictionary definitions in determining the plain and ordinary meaning of the word.” Mendoza v. Pioneer Gen. Ins. Co., 365 P.3d 371, ¶24 (2014). Case 1:16-cv-00383-MSK-STV Document 72 Filed 02/23/17 USDC Colorado Page 10 of 12 termination. Khalik, 671 F.3d at 1193. Those details indicate a plausible factual basis for Ms. Apodaca’s claims. In Ms. Apodaca’s first deposition, Defense Counsel Sweeney acknowledged being aware that Ms. Apodaca suffered from anxiety, depression, and nightmares from the time of her termination until the time of that deposition. Apodaca I, 26:16-20; 205:22-206:23; 207:22- 208:18. It is beyond cavil that CNDC knew that Ms. Apodaca had suffered significant emotional distress prior to her filing the FAC. All that is necessary for a plaintiff’s claim to be plausible is that defendant has enough factual information to be able to defend against the claims. Khalik, supra., at 1192. Regarding the second element of a claim for intentional infliction of emotional distress, CNDC argues in the Motion that the FAC “does not state any act taken by CNDC in which it knew or should have known there was a substantial probability that act would cause severe emotional distress to Plaintiff.” Motion, at 5. This argument fails because Ms. Apodaca’s FAC presents facts outlining CNDC’s knowledge of her fragile physical and emotional states at the time of her termination and at the time it refused to complete a simple form to assist her in obtaining a place to live. CNDC argues that “The Amended Complaint does not specify any facts demonstrating that Plaintiff incurred severe emotional distress which was caused by the CNDC's conduct.” Id. This argument fails for two reasons. CNDC was aware that she suffered from anxiety, depression, and nightmares from the time of her termination until her first deposition and explored the nature of those conditions a month before the FAC was filed. CNDC had knowledge of her fragile physical and emotional condition at the time it terminated her employment and of the fact that she was homeless at the time it refused to assist her in obtaining a place to live. C. THE FAC STATES A PRIMA FACIE CASE FOR EXEMPLARY DAMAGES. Case 1:16-cv-00383-MSK-STV Document 72 Filed 02/23/17 USDC Colorado Page 11 of 12 By definition willful and wanton conduct includes “conduct that creates a substantial risk of harm to another and is purposefully performed with an awareness of the risk in disregard of the consequences. Archer, 70 P.3d at 500. As demonstrated above at IV.B.2., Ms. Apodaca has stated a plausible claim for intentional infliction of emotional distress. The second element of such claims requires allegations of non-conclusory facts establishing that a defendant acted recklessly or with the intent of causing the Plaintiff severe emotional distress. Ms. Apodaca has stated a plausible claim for exemplary damages in the FAC because she has stated sufficient non-conclusory facts to state a claim for intentional infliction of emotional distress. WHEREFORE, Plaintiff prays this Honorable Court to deny CNDC’s Partial Motion to Dismiss Plaintiff’s Amended Verified Complaint (Motion) [#67], permit her to merge the second and third claims in her Amended Verified Complaint, and grant such other, further, and different relief as the Court deems just and proper in the premises. DATED: February 22, 2017. Respectfully Submitted, /s/ Joseph C. Cohen Joseph C. Cohen 1901 W. Littleton Blvd., #219 Littleton, CO 80120 303.794.2114 jcc@jccpc.com Attorney for Plaintiff CERTIFICATE OF SERVICE Pursuant to FED. R. CIV. P. 5, I hereby certify that on the of February, 2017, I caused to be served via CM/ECF a true and correct copy of BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS on all counsel of record. s/ Joseph C. Cohen Case 1:16-cv-00383-MSK-STV Document 72 Filed 02/23/17 USDC Colorado Page 12 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No: 1:16-cv-00383-MSK- STV JERILYN E. APODACA Plaintiff, v. COLORADO NONPROFIT DEVELOPMENT CENTER d/b/a FAMILIES FORWARD RESOURCE CENTER, a Colorado Non-Profit Corporation in good standing, Defendant. _____________________________________________________________________________ AMENDED VERIFIED COMPLAINT ____________________________________________________________________________ Plaintiff, Jerilyn E. Apodaca, by and through her attorneys, Joseph C. Cohen, P.C., by Joseph C. Cohen, and Elwyn F. Schaefer & Associates, P.C., by Elwyn F. Schaefer, states as follows for her Complaint against Defendant Colorado Nonprofit Development Center d/b/a Families Forward Resource Center (CNDC or the “Center”): PARTIES 1. Plaintiff Jerilyn E. Apodaca has been a resident of Aurora, Colorado, at all times relevant herein. 2. At all times relevant herein CNDC has been and is a Colorado Non-Profit Corporation with its principal place of business located in the City and County of Denver, Colorado, as well as other locations in the Denver Metropolitan area. Case 1:16-cv-00383-MSK-STV Document 72-1 Filed 02/23/17 USDC Colorado Page 1 of 11 2 JURISDICTION AND VENUE 3. Subject matter jurisdiction is conferred upon this Court under 16(b) of the Fair Labor Standards Act, as amended, 29 U.S.C. §206(d), the Equal Pay Act (EPA) and 28 U.S.C. § 1337. 4. Jurisdiction over the independent Colorado claims for wrongful termination in violation of public policy, intentional infliction of emotional distress, and punitive damages is premised upon supplemental jurisdiction. 28 U.S.C. §1367. 5. The violation of the EPA and retaliation prohibited by C.R.S. §8-2-123 took place in Denver, Colorado. 6. CNDC’s acts and omissions took place in Denver, Colorado. 7. Venue is proper in the United States District Court for The District of Colorado pursuant to 28 U.S.C. § 1391: the discriminatory acts and retaliation establishing the basis for this case all occurred in Denver, Colorado. ADMINISTRATIVE PROCEDURES Ms. Apodaca was not required to exhaust administrative remedies to commence this litigation but filed charges of sex, disability, and national origin discrimination and retaliation against CNDC with the Equal Employment Opportunity Commission (EEOC) on August 19, 2015. She has elected not to pursue such claims in the case at bar. GENERAL ALLEGATIONS 8. CDNC, as a Community Collaborative Partnership Center, provides family advocacy, pre- and post-natal counseling, parent education, community health services, and youth development services to underprivileged families in the Denver Metropolitan area. CDNC, as a Community Collaborative Partnership Center, provides family advocacy, pre- and Case 1:16-cv-00383-MSK-STV Document 72-1 Filed 02/23/17 USDC Colorado Page 2 of 11 3 post-natal counseling, parent education, community health services, and youth development services to underprivileged families in the Denver Metropolitan area. 9. At all times relevant herein, CNDC was under contract with Denver Department of Human Services (DDHS) and was certified to provide social work services to DDHS. 10. CDNC receives federal financial assistance. 11. Ms. Apodaca served as an intern at CNDC from 2005 to 2006. She was hired as a “Partner Up” Coordinator in May 2006. 12. In 2009 Ms. Apodaca was promoted to Director of Programs. She was responsible for four programs: Community Health, Family Advocacy, Youth Development, and Parent Education. 13. After becoming Director of Programs Ms. Apodaca facilitated Mandated Reporting Training for years to all CDNC staff providing services to families. She regularly placed Mandated Reporting calls to DDHS as part of her responsibilities at CDNC and C.R.S. §19-3- 304(3). There never was a problem with her reporting procedures during her tenure with CDNC prior to her termination. 14. Mr. Allen was hired by CDNC as a Fatherhood Advocate Coordinator in 2011. 15. In 2013 Mr. Allen was asked to work additional hours providing home-based services for which he was to be paid an additional $300-400/month in consideration of his performing the additional work. 16. Rather than providing those services himself, Mr. Allen delegated the responsibility to co-workers and never performed the additional duties for which he received the additional payment. Case 1:16-cv-00383-MSK-STV Document 72-1 Filed 02/23/17 USDC Colorado Page 3 of 11 4 17. The additional payments to Mr. Allen raised his compensation above that of Ms. Apodaca. 10. Ms. Apodaca informed CDNC Executive Director David Bechhoefer (Caucasian) that Mr. Allen was not performing the additional work for which he was being paid. She was ignored. 11. CDNC stopped receiving home-based service referrals in 2014, yet Mr. Allen continued to receive the additional monthly stipend to his salary. 12. In April of 2014 Mr. Allen was promoted to the Director of Programs position and given two of the four programs that previously overseen by Ms. Apodaca for four years. 13. Mr. Allen continued to be paid more than Ms. Apodaca. 14. CNDC, among other things, provides health care services and resources to disadvantaged persons and coordinates family services with DDHS. 15. On February 27, 2015, Ms. Apodaca learned in a phone call from a CNDC staff member, Aubri Schmidt (African-American/Caucasian), that a client of the Center, “VV”, whose family was receiving benefits from CNDC and DHS relating to child neglect and abuse, was involved in prostitution. Ms. Schmidt found the client’s name when reviewing a prostitution website in an unrelated personal matter. 16. Ms. Apodaca had personal knowledge of VV’s case at Families Forward and knew that her children had been raped by an unknown assailant or assailants and they were not in VV’s home at that time. 17. Upon information and belief VV’s children have not returned to VV’s home to this day. 18. Ms. Schmidt, pursuant to C.R.S. §19-3-304, reasonably believed that she had a duty to Case 1:16-cv-00383-MSK-STV Document 72-1 Filed 02/23/17 USDC Colorado Page 4 of 11 5 report this information to Ms. Apodaca. She immediately informed Ms. Apodaca of her discovery. 19. Upon learning this information, Ms. Apodaca directed Ms. Schmidt to report the information to Mr. Allen. 18. Ms. Apodaca reasonably believed she had the duty to report VV’s illegal behavior to DHS, especially in light of the family’s history with DDHS, but was unsure about doing so because of the way VV’s involvement in prostitution was discovered. 19. Ms. Apodaca reached out to Debra Pearsy, a DHS supervisor, and explained the situation without disclosing VV’s identity. Ms. Pearsy told Ms. Apodaca that she had a duty to report VV’s suspicious behavior to DDHS, so Ms. Apodaca revealed VV’s identity. Ms. Pearsy then asked that she take the following actions:  Not to send the information via email, since this information is from a prostitution (sexual) website it would be flagged by the State.  Report the information about VV to the case worker assigned to the subject case immediately.  Leave an urgent message for VV’s case worker to contact me. 20. Ms. Apodaca placed a call to VV’s case worker that same day and left a telephone message that was not returned until March 3, 2015. 21. Ms. Apodaca also called Mr. Allen that day and left an urgent voice mail at 3:41 p.m. asking him to report the situation to DHS immediately. He did not return Ms. Apodaca’s call until March 2, 2015. Case 1:16-cv-00383-MSK-STV Document 72-1 Filed 02/23/17 USDC Colorado Page 5 of 11 6 22. On March 6, 2015, Mr. Bechhoefer sent Ms. Apodaca a text message asking her to come to CNDC during her FMLA leave to discuss the VV matter. 23. Mr. Bechhoefer terminated Ms. Apodaca on March 9, 2015, purportedly because she had performed poorly, jeopardized CNDC’s relationship with DDHS, and failed to timely report the VV situation in timely manner. 24. Mr. Allen became the sole Director of Programs immediately upon Ms. Apodaca’s termination. 25. After Ms. Apodaca was terminated she was hospitalized twice for blood clots. Her treating surgeon told her that stress could cause clots. 26. While Ms. Apodaca was still recovering from her surgery, including the two blood clots, and unable to work, she had to abandon her apartment home and live with family members. 27. After she had recovered adequately, Ms. Apodaca went to work as a driver for Uber and Lyft but could not afford an apartment in Denver’s crowded market. She applied for housing assistance and asked CNDC to send a letter to the housing agency to confirm that she no longer worked there. Ms. Apodaca had to live out of her car for a time, but a letter from Mr. Schaefer sufficed to confirm that CNDC had terminated her employment, and she now has housing. Ex. FIRST CLAIM FOR RELIEF (Violation of the Equal Pay Act, 29 U.S.C. §206(d)) 28. Ms. Apodaca incorporates the foregoing and following paragraphs as though fully set forth herein. 29. Prior to Mr. Allen’s promotion to Director of Programs, when he was her subordinate, he was paid more than Ms. Apodaca from 2012 and did so until her termination in March 2015. Case 1:16-cv-00383-MSK-STV Document 72-1 Filed 02/23/17 USDC Colorado Page 6 of 11 7 30. Mr. Allen was promoted to Director of Programs with responsibility and authority equal to that of Ms. Apodaca in 2014. 31. Thereafter, considering the skills, duties, supervision, effort, and responsibilities of the Director of Program position, Ms. Apodaca was performing work that was substantially equal to that of Mr. Allen, and she had greater seniority in the position than he. Ex. 2. 32. The conditions where their work was performed were the same. 33. Under such circumstances, Mr. Allen continued to be paid more than Ms. Apodaca until she was terminated on March 6, 2015. SECOND CLAIM FOR RELIEF (Wrongful Termination in Violation of Public Policy) 34. Ms. Apodaca incorporates the foregoing and following paragraphs as though fully set forth herein. 35. Colorado has a strong public policy to prevent child abuse or avoid allowing circumstances where children are likely to be subjected to abuse. C.R.S. §19-3-302. Permitting a child to live in a home where a parent is a prostitute comprises abuse. C.R.S. § 19-10-103(1)(a)(II); People v. Corbett, 656 P.2d 687, 689 (Colo. 1983). 36. CNDC provides services to the Denver Department of Human Services as a Collaborative Community Partnership Center. 37. As an employee of CDNC Ms. Schmidt had a duty to report her reasonable belief regarding child abuse or neglect to DHS immediately. C.R.S. §19-3-304(2)(m) and (3). 38. Ms. Schmidt properly reported the information relating to VV’s apparent involvement in prostitution to her supervisor, Ms. Apodaca, on February 27, 2015. Case 1:16-cv-00383-MSK-STV Document 72-1 Filed 02/23/17 USDC Colorado Page 7 of 11 8 39. As Director of Programs for CDNC, Ms. Apodaca had a duty to report her reasonable belief regarding child abuse or neglect to DDHS. C.R.S. §19-3-304(2)(m) and (3). 40. After seeking advice from DDHS, Ms. Apodaca immediately and properly reported the information relating to VV’s apparent involvement in prostitution to VV’s DDHS caseworker on February 27, 2015. 41. Ms. Apodaca performed an important public duty when she made the report. C.R.S. §24-34-402.5. 42. When the case worker returned Ms. Apodaca’s call on March 3, 2015, the caseworker directed her to text copies of the posting on Back Page, and Ms. Apodaca did so. Ex. 3. 43. Ms. Apodaca received an email from Mr. Bechhoefer on March 6, 2015, when he knew she was on medical leave for a total hysterectomy to remove stage 4 cancerous cells. Ex. 4. 44. CNDC terminated Ms. Apodaca’s employment on March 9, 2015, for making the report about VV being advertising on a prostitution website. 45. Ms. Apodaca suffered harms and losses as a result of her wrongful termination. THIRD CLAIM FOR RELIEF (Intentional Infliction of Emotional Distress) 46. Ms. Apodaca incorporates the foregoing and following paragraphs as though fully set forth herein. 47. CNDC terminated Ms. Apodaca by calling her in to do so while she still was on bedrest recovering from the hysterectomy. 48. After Ms. Apodaca was terminated, she became homeless. 49. Ms. Apodaca required a letter from CNDC stating that she no longer was working there. Case 1:16-cv-00383-MSK-STV Document 72-1 Filed 02/23/17 USDC Colorado Page 8 of 11 9 50. CNDC, through counsel, failed and refused to send such letter because Ms. Apodaca had commenced litigation. Ex. 6. 51. Ms. Apodaca lived out of her car until Mr. Schaefer sent a letter to the agency explaining her situation. Ex. 7. 52. CNDC engaged in extreme and outrageous conduct by refusing to assist her in obtaining housing and terminated her by calling her into the office from her sick bed to do so. 53. CNDC did so recklessly or with the intent of causing the plaintiff severe emotional distress. 54. CNDC’s reckless and intentional conduct caused Ms. Apodaca severe emotional distress. FOURTH CLAIM FOR RELIEF (Exemplary Damages) 55. Ms. Apodaca incorporates the foregoing and following paragraphs as though fully set forth herein. 56. CNDC acted in an outrageous, malicious, willful and wanton manner, causing Ms. Apodaca's emotional injuries, damages, and losses. WHEREFORE, Plaintiff Jerilyn F. Apodaca prays this Honorable Court to enter judgment in her favor and against Defendant Colorado Nonprofit Development Center for violation of the Equal Pay Act, wrongful termination in violation of public policy, and intentional infliction of emotional distress; award economic, compensatory, consequential, and punitive damages in her favor and against Defendant Colorado Nonprofit Development Center in amounts determined by the trier of fact, plus interest from the date Mr. Allen began receiving pay higher Case 1:16-cv-00383-MSK-STV Document 72-1 Filed 02/23/17 USDC Colorado Page 9 of 11 10 than hers until satisfied in full, costs and attorney fees according to statute, and such other, further and different relief as the Court deems just and reasonable in the premises. Respectfully submitted December 9, 2016. ELWYN F. SCHAEFER & ASSOCIATES, P.C. JOSEPH C. COHEN, P.C. Attorneys for Plaintiff Jerilyn F. Apodaca s/ Elwyn F. Schaefer s/ Joseph C. Cohen Elwyn F. Schaefer Joseph C. Cohen 460 South Marion Parkway, # 1704 1901 W. Littleton Blvd., #219 Denver, CO 80209 Littleton, CO 80120 (303) 722-3063 303.794.2114 estoppel14@msn.com jcc@jccpc.com Case 1:16-cv-00383-MSK-STV Document 72-1 Filed 02/23/17 USDC Colorado Page 10 of 11 11 VERIFICATION I, Jerilyn E. Apodaca, declare, pursuant to the penalty of perjury that I have reviewed the foregoing allegations and they are true and accurate to the best of my knowledge, recollection and belief. Dated December 9, 2016 _______________________________ Jerilyn E. Apodaca Plaintiff’s Address: 2542 S Carson Way Aurora CO 80014 PLAINTIFF DEMANDS TRIAL TO A JURY AS TO ALL ISSUES SO TRIABLE. CERTIFICATE OF SERVICE (CM/ECF) By signing below, I hereby certify that on this 9th day of December 2016 the foregoing AMENDED VERIFIED COMPLAINT was served via the CM/ECF system which will send notification of such filing via email to the following: Scott D. Sweeney, Esq. Shawna M. Ruetz, Esq. WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP 1225 17th Street, Suite 2750 Denver, CO 80202 s/ Joseph C. Cohen Case 1:16-cv-00383-MSK-STV Document 72-1 Filed 02/23/17 USDC Colorado Page 11 of 11 JA 0008EXHIBIT 1 Case 1:16-cv-00383-MSK-STV Document 72-2 Filed 02/23/17 USDC Colorado Page 1 of 1 JA 0001EXHIBIT 2 Case 1:16-cv-00383-MSK-STV Document 72-3 Filed 02/23/17 USDC Colorado Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 16-CV-00383-MSK-STV JERILYN E. APODACA, Plaintiff, v. COLORADO NONPROFIT DEVELOPMENT CENTER d/b/a FAMILIES FORWARD RESOURCE CENTER, a Colorado Non-Profit Corporation in Good Standing, Defendant. ___________________________________________________________________________ DECLARATION OF RAY MAESTAS ____________________________________________________________________________ I am Ray Maestas, and, by signing below, I declare under penalty of perjury that my statements below are based on my first-hand knowledge and are true and accurate to the best of my knowledge and recollection. 1. I worked at CNDC from the summer of 2014 until July 29, 2016. My position there was as visitation supervisor until the day I was told I was being laid off. 2. I am hold an MSW from the University of Denver Colorado and a Master of Science in Psychology from the University of Northern Colorado and have decades of experience as a social worker. I am qualified to provide therapeutic services and perform interventions. 3. Ron Allen regularly had me perform home based services for him during the years 2013 and 2014, either because he was not qualified to provide therapeutic services or his schedule was too busy. EXHIBIT 3 Case 1:16-cv-00383-MSK-STV Document 72-4 Filed 02/23/17 USDC Colorado Page 1 of 3 4. On July 28, 2016, I received a call from a lawyer named Joe Cohen who told me he represented Jeri Apodaca, to whom I reported before she was terminated in March 2015. 5. Mr. Cohen asked whether Ron had had me perform home-based services for him. I confirmed that I had done so. 6. Based on working with both Jeri and Ron and being around them at the office, I knew that they were friends. 7. After talking to Mr. Cohen I left voice messages for Ron, my supervisor, and Dave Bechhoeffer, Executive Director of the Families Forward Resource Center and Ron’s and my boss, telling them about my talk with Mr. Cohen. 8. The next day I was told by Ron and Dave that CNDC was required to remove me from all of my cases, turn over all my case materials, and not to communicate further with any of my former clients. I had just been given a favorable performance review and a raise and was told that my work was substandard until Bechhoefer called a couple weeks later. In that call Bechhoefer for the first time told me that I had been laid off and stated, also for the first time, that my work at CNDC was unacceptable. 9. Although neither Ron nor Dave told me so, I thought then and still believe that they fired me for talking to Mr. Cohen. 10. When Jeri was still there I reported to her and then Ron after she was terminated. I had no role in the decision to fire Jeri. 11. Colorado Non-Profit Center did not contest my application for unemployment insurance benefits. 12. I have been looking for work ever since without luck. EXHIBIT 3 Case 1:16-cv-00383-MSK-STV Document 72-4 Filed 02/23/17 USDC Colorado Page 2 of 3 13. I believe that CNDC has put a black mark on my record because I have received no interviews for social worker positions. 14. I think every day about the way CNDC treated me and still am upset about it. I have trouble sleeping, depressive episodes, and financial difficulties because of being fired the way I was. FURTHER DECLARANT SAYETH NAUGHT. Date: _________________ _______________________ Ray Maestas EXHIBIT 3 Case 1:16-cv-00383-MSK-STV Document 72-4 Filed 02/23/17 USDC Colorado Page 3 of 3