Apodaca v. Colorado Nonprofit Development Center

BRIEF in Support of 79 MOTION for Summary Judgment

D. Colo.April 28, 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. _____ COLORADO NONPROFIT DEVELOPMENT CENTER’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT _____ Defendant Colorado Nonprofit Development Center d/b/a Families Forward Resource Center (“CNDC” or “Defendant”), by and through its attorneys at Wilson Elser Moskowitz Edelman & Dicker, LLP, submits this Reply in Support of Its Motion for Summary Judgment (“Reply”) and, in support, states as follows: I. INTRODUCTION In this employment action, Plaintiff Jerilyn Apodaca (“Plaintiff”) alleges multiple claims for which she bears the burden to present competent evidence that establish every element of her claims, and Plaintiff’s failure to carry this burden of proof warrants the entry of summary Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 1 of 17 2 judgment in favor of CNDC. 1 In her Verified Brief in Opposition to Defendant’s Second Motion for Summary Judgment (“Response”), ECF No. 84-1, Plaintiff did not dispute the overwhelming majority of facts set forth in CNDC’s Motion for Summary Judgment (“Motion”), ECF No. 79. 2 Instead, Plaintiff introduces immaterial facts, uses inadmissible evidence as factual support, relies on allegations in her pleadings, and in some instances fails to provide any factual or legal support whatsoever for her claims. For example, Plaintiff fails to introduce any medical records or expert testimony that supports her allegations that she was on bed rest at the time of her termination. More importantly, she does not provide evidence supporting her diagnosis of mental health issues such as depression, or establish by expert testimony that her termination caused emotional stress resulting in physical symptoms such as blood clots. Without more, Plaintiff’s conclusions and speculation cannot meet her burden of proof, and in turn, her claims of intentional infliction of emotional distress and exemplary damages are unsuccessful. In regards to her wrongful termination in violation of public policy claim, Plaintiff attempts to side-step the factual support provided by CNDC in its Motion that the report at issue was not one of child abuse or neglect, but rather she directly contacted individuals at DHS to provide information of potential prostitution by a DHS client. Plaintiff, by her own admission, 1 Plaintiff’s Retaliation for Reporting Claim Pursuant to C.R.S. § 19-3-304 was dismissed in the Recommendation of United States Magistrate Judge (ECF No. 83) shortly after CNDC filed its Motion for Summary Judgment rendering arguments as to that claim moot. 2 Plaintiff mistakenly refers to CNDC’s Motion as its second motion for summary judgment. Plaintiff suggests in her Verified Brief in Opposition to Defendant’s Second Motion for Summary Judgment (ECF No. 84-1) that Magistrate Judge Varholak treated CNDC’s Partial Motion to Dismiss Plaintiff’s Amended Verified Complaint (ECF No. 67) as a motion for summary judgment. See ECF 84-1 at n. 1. However, there is no indication in Magistrate Judge Varholak’s Recommendation of United States Magistrate Judge (ECF No. 83) that the Court considered, much less determined, that CNDC’s Partial Motion to Dismiss Plaintiff’s Amended Verified Complaint (ECF No. 67) should be converted to a motion for summary judgment. Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 2 of 17 3 distinguishes her report from prior child abuse reports she has made. Plaintiff does not provide contradictory facts to dispute her testimony, but rather relies on arguments that her testimony is taken out of context. Without more, Plaintiff’s wrongful termination claim relies only on her conflated arguments as to the report, and cannot survive summary judgment. Last, the crucial element of Plaintiff’s Equal Pay Act claim that she needs to establish is that her work was substantially similar to Ron Allen’s. Instead of contradicting CNDC's legitimate and factually supported reason that Mr. Allen earned a higher salary because he had a larger workload, Plaintiff provides inadmissible evidence that actually supports, and does not contradict, the reasons given by CNDC as to the pay differential. On these grounds, as elaborated in more detail below, Plaintiff fails to meet her burden of proof as to all claims, and necessitating that summary judgment be granted in favor of CNDC on all claims. II. ARGUMENT A. There is No Basis for Plaintiff’s Intentional Infliction Claim as Plaintiff Failed to Provide Evidence of Conduct that is Outrageous and Intentional, and Causation Has Not Been Established. Plaintiff does not respond to CNDC’s argument that she cannot establish her intentional infliction claim with factual or legal support for her argument, but rather relies on her speculation alone that the alleged emotional distress she suffered following her termination was caused by CNDC’s outrageous conduct. Plaintiff’s conclusions are offered without the introduction of the required expert testimony or medical records that establish causation. Plaintiff does not dispute that her claim is based solely on her factual allegations that she was terminated while on sick leave and that in the midst of this litigation, CNDC allegedly refused to assist her with obtaining Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 3 of 17 4 housing more than a year after her termination. Compare ECF No. 79, at p. 21 with ECF No. 84- 1, at p. 16. These facts alone do not establish conduct that is outrageous or intentional. 1. Conduct That is Outrageous Must Be Extreme. In Colorado, the level of outrageousness required to create liability is extremely high. Archer v. Farmer Bros. Co., 70 P.3d 495, 499 (Colo. App. 2002). Only conduct that is so outrageous in character, and so extreme in degree, as to go beyond possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community will suffice. Id. For example in Archer, Richard Archer suffered a heart attack just five days before his termination. Id. Archer was on indefinite leave and recuperating at his mother-in-law’s home. Id. at 497. Agents for Farmer went to Archer’s mother-in-law’s home unannounced, entered the spare room where they found Archer lying in bed, not fully clothed, and presented him with his termination papers. Id. at 499. The Colorado Court of Appeals affirmed the trial court’s decision denying Farmer’s motion for a directed verdict on Archer’s claim for intentional infliction of emotional distress based on these facts. Id. at 500. In the recent case Christen-Loper v. Bret’s Elec., LLC, outrageous conduct was established when the plaintiff was terminated while undergoing a suicide watch. 175 F. Supp. 3d 1213, 1226 (D. Colo. 2016). Christen-Loper suffered from bi-polar disorder which she informed her employer about. Id. Following a series of events at work, Christen-Loper experienced an acute activation of her bi-polar disorder which resulted in her being admitted to a behavioral health hospital and placed on a 72-hour suicide watch. Id. Plaintiff’s husband informed her employer of the situation and the employer responded by delivering a letter to plaintiff’s home stating her employment had been terminated. Id. The court found that these acts, along with an Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 4 of 17 5 incident where defendant’s owner stood over plaintiff yelling at her while hitting the wall and shouting obscenities, constituted outrageous behavior. Id. Plaintiff’s Response identifies only two facts to support her claim of outrageous conduct: that she was terminated while on leave following recovery from a hysterectomy and that CNDC did not provide a letter to assist her in obtaining housing. See ECF No. 79, at p.21; ECF No. 84- 1, at p. 16. For purposes of this Motion, these facts are not disputed. Although Plaintiff has made further allegations in her pleadings, she failed to present any additional facts or evidence in her Response to support her claim of outrageous conduct. To the extent the Court might give credence to such arguments of counsel, “a scintilla of contrary evidence does not create a genuine dispute, nor does reliance upon the allegations in a party’s pleading.” In Re Ribozyme Pharms. Sec. Litig., 209 F. Supp. 2d 1106, 1110 (D. Colo. 2006). The facts of Plaintiff’s termination are readily distinguishable from those in Archer and Christen-Loper. CNDC sent a text to Plaintiff, more than two weeks after her surgery, asking her to meet at FFRC to discuss the situation involving Ms. Schmidt’s former client. See Exhibit X (ECF No. 79-24). Although Plaintiff has alleged in this litigation that she was on FMLA and medically ordered bed rest, evidence has not been presented to support these allegations nor was that information relayed to CNDC. Id. Mr. Bechhoefer called Plaintiff in to the office to discuss her role in events that occurred, events that took place while Plaintiff was on leave because she elected not to follow the procedures established in her absence, and make a determination based on that conversation whether or not it was necessary to terminate Plaintiff. Exhibit T (ECF No. 79-20); Dave Bechhoefer Deposition 118:1-123:23, January 31, 2017 attached as Exhibit Y. In contrast to the factual scenario present in Archer and Christen-Loper, CNDC conducted the Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 5 of 17 6 termination at the place of employment, not at Plaintiff’s home or at the hospital. Plaintiff has not provided any evidence indicating CNDC was ever informed that Plaintiff’s recovery prevented her from attending a meeting at her place of employment or that she was in a compromised condition. Similarly, there is no evidence that Plaintiff objected in any way to attending the requested meeting. Plaintiff’s assertion that CNDC’s election not to complete a housing form for her, more than a year after her termination, because of this litigation, also does not constitute extreme and outrageous behavior. It is common practice that once litigation has ensued, parties avoid direct communications with each other and instead communicate through their legal representatives. Plaintiff has provided no legal authority that suggests there is an obligation otherwise. Furthermore, the evidence provided by Plaintiff establishes that it is undisputed that CNDC indeed informed the housing authority that it could not complete the requested form due to litigation and that a letter from Plaintiff’s counsel sufficed. ECF No. 84-16, at p.3. Accordingly, Plaintiff cannot establish the outrageous conduct element of her intentional infliction of emotional distress claim. 2. CNDC Had No Knowledge That Its Conduct Would Cause Severe Emotional Distress. Plaintiff’s Response confirms that CNDC’s knowledge of Plaintiff’s condition at the time of termination was limited to that provided in her February 19, 2015 email advising that she would be on leave due to medical reasons for 3-4 weeks. Response (EFC No. 84-1), at p. 16. Notably, Plaintiff’s Response is void of any assertion, or factual support, that CNDC knew or reasonably should have known that there was a substantial probability that Plaintiff would contemplate suicide or be homeless as a result of her termination. In fact, Plaintiff attests she Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 6 of 17 7 had not been treated for depression or anxiety for at least five years prior to her termination. Id. Plaintiff has failed to put forth evidence that CNDC engaged in reckless or intentional conduct. 3. Plaintiff Has Not Established Severe Emotional Distress Caused by CNDC’s Conduct. Throughout this litigation, Plaintiff has contended that she suffered severe emotional distress caused by her termination from CNDC. These injuries allegedly include severe depression and contemplating suicide, anxiety, and blood clots. 3 However, Plaintiff’s testimony alone is insufficient to establish those alleged injuries purportedly caused by her termination. Instead, Plaintiff must proffer testimony from a medical expert to establish such conditions as well as causation. “It is uniformly held that where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, they must be proved by the testimony of medical experts.” Franklin v. Shelton, 250 F.2d 92, 97 (10th Cir. 1957). When a plaintiff seeks emotional distress damages for anything beyond garden-variety emotional distress, lay testimony is insufficient to establish causation. Llewellyn v. Ocwen Loan Servicing, LLC, Civil Action No. 08-cv-00179-WJM-KLM, 2015 U.S. Dist. LEXIS 58700, at *6 (D. Colo. May 5, 2015). Allegations of physical symptoms attributed to emotional distress require expert medical testimony. Id. Various courts have held whether a stressful incident caused a flare-up of a preexisting condition is not within a jury’s competence. Id. at *7. Likewise, medical causation is usually a matter for expert testimony. Id. See also EEOC v. Vail Corp., Civil Action No. 07-cv-02035-REB-KLM, 2008 U.S. Dist. LEXIS 86046, at *11-12 (D. 3 Plaintiff cites to her deposition testimony as factual support for the emotional distress complained of including depression and anxiety. See Response (ECF No. 84-1), at p. 16. However, the deposition testimony cited, Ex. 11 at 186:13-189:16, was not submitted into the record thus Plaintiff has failed to provide admissible evidence to support this fact as required by FED. R. CIV. P. 56(c). Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 7 of 17 8 Colo. Oct. 1, 2008) (distinguishing garden-variety emotional distress damages as those that include general manifestations such as loss of enjoyment of life with those that rise to the level of specific diagnosed mental injuries, disorders, or unusually severe psychological conditions); Schlenker v. City of Arvada, Civil Action No. 09-cv-01189-WDM-KLM, 2010 U.S. Dist. LEXIS 61840, at *12 (D. Colo. June 2, 2010) (assessing when Rule 35 examination are necessary to prove causation including cases where plaintiff’s claimed emotional injuries resulted from independent causes such as preexisting or post-incident mental disorders). In her Response, Plaintiff states that although she has not been treated for depression and anxiety for at least five years prior to her termination, she contemplated suicide as a result of being terminated and consequent circumstances. ECF No. 84-1, at p. 16. Plaintiff fails to set forth crucial evidence such as the disorders she was diagnosed with, dates related to the diagnosis, medical records to support the diagnosis, and expert testimony that her emotional distress resulted from her termination. As noted in CNDC’s Motion, despite being served with a subpoena duces tecum, Plaintiff has failed to produce relevant medical records in this litigation, and elected again not to produce such records with her Response. See ECF No. 79, at p. 21. Plaintiff’s contention that she was suicidal reflects a severe psychological condition for which expert testimony is necessary to establish causation. Moreover, it appears that Plaintiff suffered from preexisting conditions of depression and anxiety for which expert testimony is also required. However, Plaintiff has failed to disclose a medical expert or provide the requisite testimony as to the cause of her depression and anxiety. Although not mentioned in her Response, Plaintiff has alluded in this litigation that she suffered blood clots associated with stress from her termination. Amended Verified Complaint Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 8 of 17 9 (ECF No. 56), at ¶ 25. Again, no expert testimony as to the medical causation of the blood clots has been presented. In the absence of the requisite expert testimony regarding causation, Plaintiff’s claim of intentional infliction of emotional distress cannot survive summary judgment, as she has failed to establish the existence of her medical conditions or the connection between her alleged conditions and her termination. B. Plaintiff Did Not Make a Report of Child Abuse or Neglect Pursuant to C.R.S. § 19- 3-340(3), Therefore Her Termination Was Not Wrongful. Plaintiff testified that the propositioning as an escort on the internet by a DHS client is not a situation indicative of child abuse or neglect outlined in C.R.S. § 19-3-340(3). ECF No. 79, at p. 16. Instead, the call made by Plaintiff was intended to assist a DHS caseworker in coaching her client. Id. Plaintiff, in her own words, distinguishes the suspicious behavior involving a DHS client propositioning herself as an escort from reports of child abuse she has made to the designated hotline. Id. Plaintiff argues that the testimony relied on by CNDC “mischaracterizes Ms. Apodaca’s deposition testimony by cherry-picking a statement made out of context.” ECF No. 84-1, at p. 15. In support for her position, Plaintiff cites to the same testimony cited by CNDC. There is no explanation as to how this testimony is mischaracterized or provision of context that alters the implication of Plaintiff’s testimony. To be a genuine dispute, Plaintiff has to produce enough contrary evidence that, if presented to at trial, a reasonable jury could return a verdict for either party. See In Re Ribozyme Pharms. Sec. Litig., 209 F. Supp. 2d at 1110. Plaintiff has failed to present evidence contrary to her admission that her call to DHS was not a report of child abuse, thus it remains undisputed that Plaintiff’s report was not one of child abuse or neglect as contemplated by C.R.S. § 19-3-340(3). Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 9 of 17 10 To create the appearance of disputed facts as to the reason for her termination, Plaintiff introduces a termination letter drafted by Plaintiff’s supervisor, Mr. Bechhofer. ECF No. 84-1, at p. 13; ECF No. 84-15. 4 This letter does not create an issue of disputed fact. What Plaintiff omits is that the letter identified the “report” at issue as “Ms. Schmidt inappropriately researched the personal sex life of a former client on the internet and sent you compromising pictures, which you in turn forwarded to the caseworker at Denver Human Services.” ECF No. 84-15. Plaintiff is conflating the facts in evidence by equating the “report” made by Plaintiff with a report of child abuse or neglect pursuant to C.R.S. § 19-3-340(3). The concern, as discussed in the termination letter and CNDC’s Motion, was that Plaintiff exercised poor judgment in contacting DHS before discussing Ms. Schmidt’s actions with her supervisor. ECF No. 79, at p. 15; ECF No. 84-15. The testimony referenced by Plaintiff is consistent with CNDC’s position. As stated by CNDC’s 30(b)(6) designee, “[t]he problem is a problem of judgment and communication and deciding when to call and whom to call in a particular situation . . . to the extent there may have been real concern about the welfare of the children, not calling the hotline did slow down the process.” ECF No. 84-8, at 29:1-30:5. The key distinction from the arguments made in Plaintiff’s Response and the evidence in the record is that CNDC, DHS, and Plaintiff, as stated in her deposition testimony, all believe the events immediately preceding Plaintiff’s termination did not qualify as a report of child abuse or neglect, and instead it only amounted to an incident of concern regarding a DHS’s client. Likewise, Plaintiff asserts that because the draft termination letter does not state Plaintiff had performance issues that CNDC is somehow precluded from detailing Plaintiff’s continuing 4 As Plaintiff is aware, the termination letter referenced was a draft letter that was not provided to Plaintiff until discovery commenced in this litigation. Bechhoefer Deposition, Exhibit Y at 65:21-66:25. Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 10 of 17 11 performance issues, and that raising concerns regarding Plaintiff’s work performance is pretextual. CNDC has consistently stated that Plaintiff was terminated because she exercised poor judgment in way she handled the information Ms. Schmidt provided, and following her prior performance issues, CNDC decided to terminate her employment. Indeed, Plaintiff’s conduct surrounding the information provided by Ms. Schmidt is simply the final example of her poor performance. Evidence of Plaintiff’s unsatisfactory performance has not been presented as an alternate reason for the termination as has been suggested, instead the performance issues elaborate on the circumstances surrounding Plaintiff’s termination and support CNDC’s decisions such as not awarding merit-based pay increases. Concerns over Plaintiff’s inadequate job performance were documented throughout her employment. See ECF Nos. 79-6, 79-7, 79-14, 79-18, and 79-19. Moreover, Plaintiff concedes she was overwhelmed by her job. Response (ECF No. 84-1), at pp. 9-10. Plaintiff appears to believe that her performance suffered not from her own shortcomings but instead resulted from having too much on her plate. Id. However, this does not create a question as to the legitimacy of whether Plaintiff’s performance was a factor in CNDC’s decision-making, it creates a question as to the reasons Plaintiff’s performance suffered which is immaterial to her claim of wrongful termination in violation of public policy. The undisputed evidence establishes that Plaintiff was discharged for legitimate reasons which were entirely unrelated to the Colorado Child Protection Act of 1987 and, therefore, summary judgment on the wrongful termination claim in CNDC’s favor is appropriate. C. Because Plaintiff’s Intentional Infliction of Emotional Distress Claim Lacks Merit, Her Exemplary Damages Claim Is Rendered Moot. Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 11 of 17 12 Pursuant to C.R.S. § 13-21-102(1)(a), a person may recover reasonable exemplary damages in addition to, but not exceeding, the amount of actual damages awarded only if the civil injury complained of is attended by circumstances of, among other things, willful and wanton conduct. “Willful and wanton conduct" is defined 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." Archer v. Farmer Bros. Co., 70 P.3d at 500 (citing C.R.S. § 13-21-102(1)(b)). Plaintiff elected in her Response not to elaborate on the basis of her claim for exemplary damages or to identify the factual support for her claim. See ECF No. 84-1, at pp. 16-17. Therefore CNDC will briefly address alleged facts believed to be pertinent to this claim. First and foremost, as detailed above regarding Plaintiff’s intentional infliction of emotional distress claim, Plaintiff has failed to establish factual support that any conduct taken by CNDC was intentional or purposeful. In Archer, exemplary damages were awarded based on the conduct of defendant’s agents who, despite being aware of Archer’s serious medical condition, ordered his firing. 70 P.3d at 500-01. Evidence of a statement made by Farmer’s VP that he “did not care if Archer was ‘on his deathbed’” sufficed to support the conclusion that defendant acted purposefully with wanton and reckless disregard for Archer’s feelings. Id. Here, no such evidence exists. There is absolutely no evidence that CNDC was aware at the time of Plaintiff’s termination that she was on bed rest or that such information was ever communicated to CNDC. See ECF No. 79-24. There is no evidence that CNDC had any indication that Plaintiff’s termination would cause her "severe emotional distress.” Indeed, Plaintiff admits that the evidence shows that she had not been treated for depression or anxiety Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 12 of 17 13 for five years prior to her termination. ECF No. 84-1, at p. 16. It is ludicrous to suggest, as Plaintiff has done, that CNDC should have realized at the time of the termination that Plaintiff would become homeless a year later. In addition, Plaintiff has failed to demonstrate proof that she was terminated for making a report that she was required to make by law. CNDC has set forth, supra and in its Motion, testimony and documents that substantiate its position that the incident that led to Plaintiff’s termination was not a report of child abuse or neglect. Without contradictory evidence, Plaintiff’s allegations that she was fired for making a mandatory report are meritless. Because Plaintiff’s claim for intentional infliction of emotional distress fails, her exemplary damages claims must also fail. D. There Is No Genuine Dispute That Plaintiff’s Work Was Not Substantially Equal to Mr. Allen’s, Thus She Cannot Establish Her Equal Pay Act Claim. There is no genuine dispute as to the material facts set forth by CNDC in its Motion as to Plaintiffs Equal Pay Act claim. Plaintiff relies on exactly the same documents submitted by CNDC in support of its Motion when supporting her arguments with respect to the employee salaries, job titles, and timeline related to her employment. Compare ECF No. 79, at pp. 7-12 with ECF No. 84-1, at pp. 3-4. As pointed out in CNDC’s Motion, to survive summary judgment on her claim that CNDC violated the Equal Pay Act, Plaintiff must establish that she was performing work substantially equal to that of her male coworker Ron Allen. The undisputed evidence demonstrates that the positions were not substantially equal for many reasons, including Mr. Allen took on an increase in his workload and hours by 20%, which justified a correlating increase in his salary by 20%. ECF No. 79, at p. 8. In an attempt to create a genuine dispute as Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 13 of 17 14 to whether the disparity between Mr. Allen and Plaintiff’s salary was warranted, Plaintiff introduces a Declaration by a previous CNDC employee, Ray Maestas. ECF No. 84-1, at p. 8; ECF No. 84-11. Plaintiff asserts that Mr. Allen regularly delegated home-based services to Mr. Maestas because Mr. Maestas had a master’s in social work and was better qualified than Mr. Allen to provide some of the in-home services. Id. This is not in dispute. As explained by Mr. Bechhoefer, at some point there was a request that home-based services be provided by someone with a master’s in social work. Exhibit I (ECF No. 79-9), at 136:16-138:18. When that occurred, Mr. Maestas was assigned to those cases, and Mr. Allen replaced his home-based visits with additional fatherhood cases. Id. Moreover, the Declaration by Mr. Maestas states “Ron Allen regularly had me perform home based services for him during the years of 2013 and 2014, either because he was not qualified to provide therapeutic services or his schedule was too busy.” ECF No. 84-11, at ¶ 3. 5 Therefore, it is not disputed that Mr. Allen’s workload was greater than before due to either home-based services or fatherhood cases. Next, Plaintiff argues the suggestion that her poor performance impacted her pay is pretext. However no contrary evidence has been introduced; by Plaintiff’s own admission, she was overwhelmed by her job duties. ECF No. 84-1, at p. 9. CNDC has set forth evidence of Plaintiff’s ongoing performance issues, including her performance reviews, communications from DHS, and documentation of her performance issues from FFRC board members. Plaintiff counters that her performance suffered, not because of her own shortcomings, but because she had too much on her plate. Id. at p. 10. In other words, Plaintiff admits that her performance 5 Although not addressed here as it is not material to Plaintiff’s Equal Pay Act claim, CNDC objects to the majority of Mr. Maestas’ Declaration as it does not contain admissible evidence. Mr. Masteas makes many conclusory statements based on little or no factual support. Additionally, the Declaration is inadmissible as it includes hearsay, speculation, and lacks foundation. CNDC reserves the right to challenge the admissibility of the Declaration should it become relevant in this litigation. Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 14 of 17 15 was unsatisfactory and did not conform to CNDC’s expectations, but argues that the expectations were unreasonable. Given that the performance issues were ongoing and well-documented, and Plaintiff has not presented evidence directly demonstrating that the motivations behind the CNDC’s presentation of evidence as to Plaintiff’s performance is false, or indirectly by evidence that the motivations are not credible, Plaintiff’s argument that the performance issues are merely a pretext is insufficient. To rebut the evidence set forth regarding her performance, Plaintiff introduces a secretly recorded conversation between Plaintiff, her attorneys, and two DHS employees. Id. referencing a DHS Audio Recording as Exhibit 13 and Unofficial Transcript as Exhibit 14. Select portions of the transcript are cited for the proposition that Plaintiff’s inability to keep up with her workload was not a threat to the relationship between FFRC and DHS. Understood within the circumstances of the conversation and Plaintiff’s termination, this is not a reasonable inference. Of initial concern, the material cited to support Plaintiff’s contention is not presented in a form that would be admissible in evidence. Plaintiff has provided both a recording and transcript that cannot be authenticated, lack adequate foundation, and contain hearsay. Furthermore, the evidence Plaintiff introduced supports CNDC’s position that there were ongoing concerns that DHS had with FFRC’s performance. The excerpts of the conversation which Plaintiff cites in her Response do not directly address Plaintiff’s performance issues or the incident preceding Plaintiff’s termination. The individuals from DHS simply identify that Plaintiff has certain skills that they value; this does not refute evidence that CNDC found Plaintiff’s performance unsatisfactory. Regardless, since these materials do not qualify as admissible evidence, any alleged disputed fact is not supported by the evidence as required by FED. R. CIV. P. 56. Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 15 of 17 16 Accordingly, Plaintiff has not presented competent evidence to establish every element of her Equal Pay Act claim nor has she proffered a genuine dispute as to the facts set forth by CNDC regarding this claim. IV. CONCLUSION For the reasons argued in this Reply as well its Motion for Summary Judgment, Colorado Nonprofit Development Center is entitled to judgment as a matter of law on all claims made against it by Plaintiff as she has failed to come forward with sufficient evidence, when viewed in the light most favorable to her, to establish her burden of proof. Colorado Nonprofit Development Center respectfully renews its requests that this Court enter summary judgment pursuant to Fed. R. Civ. P. 56 in its favor as to all claims, dismiss this action in its entirety, and other such relief that is just and proper. DATED: April 28, 2017. Respectfully submitted, /s/ Shawna M. Ruetz Shawna M. Ruetz, #44909 Scott D. Sweeney, #28854 WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP 1225 17 th Street, Suite 2750 Denver, CO 80202 Tel: (303) 572-5300 Fax: (303) 572-5301 Attorneys for Defendant Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 16 of 17 17 CERTIFICATE OF SERVICE Pursuant to FED. R. CIV. P. 5, I hereby certify that on the 28 th of April, 2017, I caused to be served via CM/ECF a true and correct copy of COLORADO NONPROFIT DEVELOPMENT CENTER’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT on all counsel of record. s/ Shawna M. Ruetz Shawna M. Ruetz Case 1:16-cv-00383-MSK-STV Document 92 Filed 04/28/17 USDC Colorado Page 17 of 17 Case 1:16-cv-00383-MSK-STV Document 92-1 Filed 04/28/17 USDC Colorado Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 16-CV-00383-NYW __________________________________________________ VIDEO DEPOSITION OF DAVID W. BECHHOEFER January 31, 2017 __________________________________________________ JERILYN E. APODACA, Plaintiff, vs. COLORADO NONPROFIT DEVELOPMENT CENTER d/b/a FAMILIES FORWARD RESOURCE CENTER, a Colorado Non-Profit Corporation in good standing, Defendant. __________________________________________________ APPEARANCES: THE LAW FIRM OF JOSEPH C. COHEN, P.C. By Joseph C. Cohen, Esq. 1901 West Littleton Boulevard Suite 219 Littleton, Colorado 80120 and ELWYN F. SCHAEFER, ATTORNEY AT LAW By Elwyn F. Schaefer, Esq. 460 South Marion Parkway, Suite 1704 Denver, Colorado 80209 Appearing on behalf of Plaintiff WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP By Scott D. Sweeney, Esq. Shawna M. Ruetz, Esq. 1225 - 17th Street, Suite 2750 Denver, Colorado 80202 Appearing on behalf of Defendant Also Present: Maryvonne Tompkins, videographer Jerilyn Apodaca Case 1:16-cv-00383-MSK-STV Document 92-1 Filed 04/28/17 USDC Colorado Page 2 of 10 1 interruption, I've forgotten where the heck we 2 were. Would you read back the last one, please. 3 Thanks, Tracy. 4 (Page 64, Lines 6 through 15 read.) 5 Q (By Mr. Cohen) Okay. Have you ever 6 disciplined -- In your -- In your role as 7 executive director of FFRC, have you ever 8 disciplined an employee for calling the Department 9 of Human Services -- Denver's Department of Human 10 Services rather than the hotline to report child 11 abuse or circumstances that might reasonably lead 12 to child abuse or neglect? 13 A I don't believe so. 14 Q Okay. Mr. Bechhoefer, I am handing you 15 what's been marked as Exhibit 16. Would you 16 please take a look at that. Let me know when 17 you're ready. 18 A Okay. 19 Q Do you recognize this document? 20 A I do. 21 Q What is it? 22 A This was a letter I had initially 23 drafted to give to Jerilyn Apodaca prior to her 24 termination, but after -- This was probably -- 25 This was March 6th. It was -- It was a number of Case 1:16-cv-00383-MSK-STV Document 92-1 Filed 04/28/17 USDC Colorado Page 3 of 10 1 days before the termination, and I never ended -- 2 actually gave it to her. 3 Q Why not? 4 A After finding out more about the case, 5 some of the reasons in the letter weren't quite 6 right. And CNDC -- After consult- -- consulting 7 with CNDC, they recommended that we not give 8 anything to her. 9 Q Not do anything to Ms. Apodaca? 10 A No, not giving her a copy of the 11 letter. 12 Q I see. Did anyone authorize you to 13 draft this letter to Ms. Apodaca, anyone at CNDC 14 or FFRC? 15 A Authorize, no. I mean, I wouldn't have 16 to have permission to write a letter to a staff 17 member. 18 Q So you had authority to draft this 19 letter? It was within your bailiwick as executive 20 director to write such a letter? 21 A CNDC has hiring and firing approval, so 22 I can't actually fire anybody without CNDC saying 23 that that's okay to do so. So I could write this, 24 but if they said, "Don't give it to her," I 25 wouldn't. Case 1:16-cv-00383-MSK-STV Document 92-1 Filed 04/28/17 USDC Colorado Page 4 of 10 1 client, what were your intentions at that time for 2 calling her in? What was the reason you called 3 her in? 4 A My intention was that I was probably 5 going to terminate her. I wanted to hear her 6 version of the situation, and that was it. 7 Q So what time did -- did she have to 8 come into the office? 9 A I think we did it early. 10 Q 8:30? 11 A That sounds right. 12 Q Okay. Did Ms. Apodaca have to get up 13 out of her sick bed and drive down to the office? 14 MR. SWEENEY: Form, foundation. 15 Q (By Mr. Cohen) As far as you know. 16 A She had to drive to the office. 17 Q She did? 18 A She had to get to the office. I don't 19 know how or from where. 20 Q It didn't matter to you? 21 MR. SWEENEY: Form. 22 A I wouldn't say it didn't matter, but it 23 was important to me that we spoke. 24 Q (By Mr. Cohen) Okay. And do you 25 dispute that Ms. Apodaca was still recovering from Case 1:16-cv-00383-MSK-STV Document 92-1 Filed 04/28/17 USDC Colorado Page 5 of 10 1 her hysterectomy at this time -- 2 MR. SWEENEY: Form. 3 Q (By Mr. Cohen) -- on March 9 -- well, 4 March 6th and March 9th, 2015? 5 A So it would have been probably about 6 two or three weeks afterwards. Yeah, she was 7 probably still in recovery. 8 Q Okay. What did you talk about during 9 this meeting that was held at 8:30 in the morning 10 at the offices of Families Forward on March 9, 11 2015? 12 A I asked her to relate everything that 13 she had been working on and had been in 14 communication about, everything related to the 15 situation with Ms. Vigil. We discussed the 16 repercussions, and then I let her know that she 17 was terminated. 18 Q Okay. What reper- -- What 19 repercussions did you discuss with Ms. Apodaca? 20 A I believe I talked about the -- 21 sorry -- the situation with Denver Human Services 22 and their concerns and how it could affect the 23 org- -- Families Forward Resource Center. I 24 believe I alluded -- I think I said, you know, 25 I -- After all -- We received a lot of Case 1:16-cv-00383-MSK-STV Document 92-1 Filed 04/28/17 USDC Colorado Page 6 of 10 1 complaints from other staff members and board 2 members, and I said I had been defending her all 3 this time and I couldn't do it anymore. 4 And I asked her why she did not tell me 5 about this whole situation and kept me in the 6 dark. I think I told her that, to me, indicated 7 that I couldn't trust her in her position. She 8 required -- She responded that she wasn't 9 thinking clearly and she was on a lot of 10 medication. And so then I informed her we were 11 terminating her employment. 12 Q So you called her in to fire her? 13 MR. SWEENEY: Form. 14 A I was pretty sure that was going to be 15 the outcome, but I did want to hear her side of 16 the story in case there was information I didn't 17 have that could have changed my mind. 18 Q (By Mr. Cohen) But now you've -- 19 you've testified here today that her calling -- 20 her receiving the call from Ms. Schmidt was not 21 improper; that she exhibited no poor judgment in 22 calling Ms. Pearcy, running the hypothetical by 23 her, and then when she learned that it was a 24 mandatory reporting situation, reporting the 25 situation to Ms. Pearcy, correct? Case 1:16-cv-00383-MSK-STV Document 92-1 Filed 04/28/17 USDC Colorado Page 7 of 10 1 MR. SWEENEY: Form. 2 A Correct. 3 Q (By Mr. Cohen) And that there really 4 was no threat to Families Forward or CNDC's 5 relationship with Denver Human Services as a 6 result of the call? 7 MR. SWEENEY: Form and foundation. 8 A No threat as a result of the call, but 9 still a threat as a result of the situation and 10 that we weren't -- we didn't have an opportunity 11 to properly convey the situation to the department 12 to mitigate any repercussions. 13 Q (By Mr. Cohen) But Mr. Allen reported 14 to you that he'd received the call from 15 Ms. Apodaca, right? 16 A Correct. 17 Q So she did what she could to get it to 18 you. She called the person who was supposed to be 19 dealing with this stuff. 20 A She made a lot of calls, but not -- 21 never to me. 22 Q No requirement to call you, though, 23 correct? 24 A Correct. 25 Q So this is one of my very favorite Case 1:16-cv-00383-MSK-STV Document 92-1 Filed 04/28/17 USDC Colorado Page 8 of 10 1 exhibits, as you'll see. Take a look at this 2 letter again that you drafted on the 6th, the day 3 that you texted Ms. Apodaca to have her come in 4 off her sick bed for a meeting about Ms. Schmidt. 5 Is there any mention in that letter -- 6 And I'll turn back to my copy just in case. Can 7 you see anything in this letter that refers to ROC 8 notes or previous problems with Ms. Apodaca's 9 performance? 10 A No. 11 Q Are you familiar with the Colorado Wage 12 Act? 13 A Probably the spirit of it, but not the 14 exact language. 15 Q Okay. When Ms. Apodaca came in on 16 Monday, March 9, 2015, did you have a check 17 prepared for her to compensate her for her paid 18 time off and vacation and any wages that she might 19 have earned? 20 A I don't remember if I had the check or 21 if she were to pick it up from CNDC. 22 Q But one was prepared? 23 A Yes. 24 Q Before March 9th -- 25 A Yes. Case 1:16-cv-00383-MSK-STV Document 92-1 Filed 04/28/17 USDC Colorado Page 9 of 10 1 Q -- or -- Okay. So the intention 2 really was there to terminate her? 3 A No, we didn't have to give her the 4 check. We could have -- I could have stopped and 5 told CNDC we were not proceeding with the 6 termination, and they would have voided the check. 7 Q Okay. But all your plans before this 8 meeting were to terminate her? 9 A Probably. 10 MR. SWEENEY: Form. 11 Q (By Mr. Cohen) That was a probably? 12 A Yes. 13 Q Yeah. And you took every step to 14 complete that termination on March 9th that was 15 necessary, correct? 16 A Correct. 17 Q So why was Ms. Apodaca fired? I just 18 don't understand. 19 A After a long history of poor 20 performance, this was -- this incident and the way 21 it was handled showed poor judgment and it showed 22 I couldn't trust her in a position that was very 23 important to the organization. 24 Q I see. So I think you earlier denied 25 that Ms. Apodaca was an exemplary performer for Case 1:16-cv-00383-MSK-STV Document 92-1 Filed 04/28/17 USDC Colorado Page 10 of 10