Reveles v. Catholic Health Initiatives

MOTION to Dismiss for Lack of Jurisdiction

D. Colo.December 22, 2016

55460080.6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 16-cv-02561-CBS VALERIE REVELES, an individual, Plaintiff, v. CATHOLIC HEALTH INITIATIVES, Defendant. DEFENDANT’S MOTION TO DISMISS Defendant Catholic Health Initiatives (“CHI”), through counsel, moves to dismiss Plaintiff Valerie Reveles’ (“Plaintiff”) Complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). In support of its Motion, Defendant states as follows: CERTIFICATE OF COMPLIANCE WITH D.C.COLO.L.CIVR 7.1A The undersigned counsel has conferred with counsel for Plaintiff who has indicated that she opposes the relief requested herein. INTRODUCTION Plaintiff contends that her employer, CHI, harassed, discriminated, and retaliated against her because of her gender, in addition to engaging in various tortious conduct. Specifically, Plaintiff alleges: (1) violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq. – Sex Discrimination; (2) violation of Title VII – Sexual Harassment; (3) violation of Title VII – Retaliation; (4) violation of the Colorado Anti- Discrimination Act (“CADA”), Colo. Rev. Stat. § 24-34-401, et seq. – Discrimination; Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 1 of 17 2 55460080.6 (5) violation of CADA – Sexual Harassment; (6) violation of CADA – Retaliation; (7) Negligent Supervision and Retention; (8) Respondeat Superior; and (9) Outrageous Conduct/Intentional Infliction of Emotional Distress. Plaintiff cannot prevail on any theory of liability and her Complaint should be dismissed. Plaintiff’s Title VII claims should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction because Plaintiff failed to exhaust her administrative remedies. Specifically, the allegations of discrimination, harassment, and retaliation in her Equal Employment Opportunity Commission (“EEOC”) Charge of Discrimination (“Charge”) are untimely, as they all occurred 300 days prior to the filing of the Charge. Plaintiff also failed to exhaust administrative remedies as to several Complaint allegations that were not alleged in the Charge. Likewise, Plaintiff’s claims under CADA are untimely because they were not filed within six months after the allegedly discriminatory, harassing, or retaliatory conduct, as required by C.R.S. §§ 24-34-306, 403. Finally, the negligence claims asserted by Plaintiff should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because they accrued more than two years before Plaintiff filed this action and thus, are barred by the applicable statute of limitations under C.R.S. § 13-80-102(1)(a). Since all Complaint allegations are untimely, this Court should grant CHI’s Motion to Dismiss. Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 2 of 17 3 55460080.6 STATEMENT OF FACTS The following facts are derived from the allegations in the Complaint: 1 1. CHI is a Colorado non-profit corporation with a principal place of business located in Englewood, Colorado. (Doc. 1, Compl. ¶ 4.). 2. Plaintiff was hired by CHI as a Procurement Manager in 2003. (Doc. 1, Compl. ¶ 13.) 3. In 2008, Plaintiff transferred to the Data Management Department, where she worked as a Product Specialist. (Doc. 1, Compl. ¶ 15.) 4. In August 2009, Plaintiff reported to her supervisor, Kevin Kakuda, that her co- worker, Andrew Martin, was acting inappropriately towards her. (Doc. 1, Compl. ¶ 36.) She accused Martin of repeatedly making unwanted and offensive comments and other sexual communications to her. (Doc. 1, Compl. ¶¶ 18, 32.) 5. Plaintiff continued working as a Product Specialist, without any reported incident, until March 18, 2014, when she approached Mr. Kakuda and two other CHI Directors and told them that Mr. Martin was sexually harassing her and her co-worker. (Doc. 1, Compl. ¶ 53.) 6. In response, Mr. Nelson reprimanded Mr. Martin and notified CHI’s Human Resources department. (Doc. 1, Compl. ¶ 57.) 7. Mr. Nelson told Plaintiff that he had reprimanded Mr. Martin, but if an incident with Mr. Martin occurred again, she should tell him that he will be reported to Human Resources. (Doc. 1, Compl. ¶ 56.) 1 While a Motion to Dismiss requires the Court to accept all of Plaintiff’s Complaint allegations as true (see GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)), CHI, notwithstanding, denies all alleged unlawful conduct. Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 3 of 17 4 55460080.6 8. In January 2016, CHI received an anonymous complaint through its ethics hotline about Mr. Martin’s behavior towards other female employees. (Doc. 1, Compl. ¶ 77.) 9. The hotline complaint triggered an internal investigation by CHI’s Human Resources. (Doc. 1, Compl. ¶ 77.) 10. At the conclusion of the investigation, in February 2016, CHI terminated Mr. Martin’s employment. (Doc. 1, Compl. ¶ 85.) 11. On July 6, 2016, Plaintiff filed a Charge with the EEOC, alleging discrimination due to her gender and retaliation for reporting the discrimination. (Doc. 1, Compl. ¶¶ 11, 91.) A true and correct copy of the Charge is attached as Exhibit A. 2 12. In the Charge, Plaintiff alleged that she was subjected to sexual harassment “[b]eginning in or around 2009, and continuing until on or around May 2014.” (Ex. A, EEOC Charge.) 13. Significantly, Plaintiff reported that the discrimination took place, at the earliest, on June 1, 2009, and at the latest, May 31, 2014. (Ex. A, EEOC Charge.) Plaintiff did not check the box to indicate a continuing violation. Id. 14. On July 15, 2016, Plaintiff received her Notice of Right to Sue from the EEOC. (Doc. 1, Compl. ¶¶ 12, 92.) 15. Plaintiff filed this lawsuit on October 13, 2016. (Doc. 1, Compl. p.21.) 2 Although Plaintiff did not attach the Charge to her Complaint, she refers to it in that pleading, and, for obvious reasons, the timeliness of the Charge is critical to the analysis of this Motion. The Court may consider the EEOC Charge without converting this Motion to a motion for summary judgment. See Dirkse v. Alticast Inc., No. 14-CV-02224-RM-NYW, 2015 WL 6125311, at *9 n.7 (D. Colo. July 6, 2015) (12(b)(6); Underwood v. Geo Grp., Inc., No. 10-CV-00306-LTB-KLM, 2010 WL 2653316, at *1 (D. Colo. June 30, 2010) (12(b)(1)). Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 4 of 17 5 55460080.6 LEGAL STANDARD I. Fed. R. Civ. P. 12(b)(1) Federal Rule of Civil Procedure 12(b)(1) requires courts to dismiss a complaint if it lacks jurisdiction over the subject matter. Jurisdictional issues must be addressed at the outset of a case and, if jurisdiction is lacking, the court must immediately dismiss the case or claim. In re Franklin Sav. Corp., 385 F.3d 1279, 1286 (10th Cir. 2004). It is the Plaintiff’s burden to establish subject matter jurisdiction over her claims. Underwood, No. 10- 2010 WL 2653316, at *1. When analyzing a motion to dismiss under Rule 12(b)(1), courts have wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts. Id. An EEOC charge is a document that a Court must consider when assessing jurisdiction under Rule 12(b)(1). See, e.g., Jenkins v. Educ. Credit Mgmt. Corp., 212 F. App’x 729, 733 (10th Cir. 2007); Underwood, 2010 WL 2653316, at *1. II. Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 12(b)(6) permits courts to dismiss claims when they fail to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing and quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claimant must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Although courts should accept allegations of fact as true, legal conclusions couched as factual Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 5 of 17 6 55460080.6 allegations need not be accepted. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). If Plaintiff’s Complaint does not contain well-pled factual allegations to support each of her claims, it should be dismissed pursuant to Fed.R.Civ.P.12(b)(6). See U.S. ex rel. Conner v. Salina Reg’l Health Ctr., Inc., 543 F.3d 1211, 1217 (10th Cir. 2008). ARGUMENT I. PLAINTIFF’S TITLE VII CLAIMS SHOULD BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION. First, this Court lacks subject matter jurisdiction to consider Plaintiff’s Title VII claims. Here, Plaintiff alleges sex discrimination, sexual harassment, and retaliation, in violation of Title VII. (Doc. 1, Compl. ¶¶ 93-113.) All of this alleged misconduct, however, is time-barred and not actionable. Additionally, the Court lacks subject matter jurisdiction over all allegations in the Complaint that Plaintiff failed to specifically raise in her Charge. A. Plaintiff Failed To Timely Exhaust Administrative Remedies All Title VII counts in Plaintiff’s Complaint must be dismissed because she failed to timely exhaust her administrative remedies. In the Tenth Circuit, “[e]xhaustion of administrative remedies is a ‘jurisdictional prerequisite’ to suit under Title VII.” Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996). Exhaustion requires that an employee assert allegations of discrimination in a charge of discrimination that was timely filed with the EEOC or the Colorado Civil Rights Division. Aluru v. Anesthesia Consultants, 176 F. Supp. 3d 1116, 1129 (D. Colo. 2016). The failure to timely file a charge with the proper agency is “jurisdictionally fatal and requires dismissal” under Rule (12)(b)(1). Chytka v. Wright Tree Serv., Inc., 925 F. Supp. 2d 1147, 1161 (D. Colo. 2013), aff’d, 617 F. App’x 841 (10th Cir. 2015) (quoting Underwood, 2010 Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 6 of 17 7 55460080.6 WL 2653316, at *2). Federal courts do not have subject matter jurisdiction to review a claim for which administrative remedies have not been exhausted. Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317-18 (10th Cir. 2005). In states, such as Colorado, that have an agency to investigate employment discrimination claims, the complainant has 300 days, instead of the statutory 180 days, to file a claim with the EEOC. 42 U.S.C. § 2000e-5(e)(1); Colo. Rev. Stat. §§ 24-34-301 et seq.; Castaldo v. Denver Public Sch., 276 Fed. App’x. 839, 841-42 (10th Cir. 2008). To exhaust administrative remedies, “[e]ach discrete act of discrimination . . . is treated separately, and must be the subject of a timely EEOC charge.” Bronakowski v. Boulder Valley Sch. Dist., 549 F. Supp. 2d 1269, 1278 (D. Colo.), aff’d, 294 F. App’x 408 (10th Cir. 2008) (quoting Carrero v. Arapahoe County Sheriffs Office, 2006 WL 2594472 at * 3 (D.Colo. Sept. 11, 2006)); Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003) (recognizing that Nat’l R.R. Passenger Corp. v. Morgan rejected “application of the continuing violation theory” in the Tenth Circuit). This is true “even though each discrete act might also be part of a larger pattern or practice of discrimination.” Bronakowski, 549 F. Supp. 2d at 1278 (quoting Carrero, 2006 WL 2594472 at * 3). In other words, conduct that is time-barred is not actionable, and does not become actionable by assertions that it is related to acts occurring within the limitations period. Brown v. Unified School Dist. 501, Topeka Public Schools, 465 F.3d 1184, 1187 (10th Cir. 2006). See also Carrero, 2006 WL 2594472 at * 3 (“[A]n employee who fails to file a timely charge with respect to a discrete act cannot thereafter revive the ability to seek damages for the discrete act by claiming it to be part of a hostile environment.”) (citing Morgan, 536 U.S. at 115, 120, n.12). Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 7 of 17 8 55460080.6 Here, Plaintiff’s Title VII claims are facially untimely. Plaintiff filed her charge of discrimination with the EEOC on July 6, 2016. (Doc. 1, Compl. ¶¶ 11, 91; Ex. A, EEOC Charge.) Per statute, only discrete acts of discrimination alleged to have occurred within 300 days of filing the Charge (or September 10, 2015) can be pursued. See Morgan, 536 U.S. at 113. In this case, no discrete act of discrimination, harassment, or retaliation occurred within the limitations period. On the contrary, twice in the Charge, Plaintiff asserts that the last discriminatory act occurred in May 2014. Plaintiff stated in her Charge that the discrimination took place, at the earliest, on June 1, 2009, and at the latest, May 31, 2014. (Ex. A, EEOC Charge.) Plaintiff also stated that she was subjected to sexual harassment, “[b]eginning in or around 2009, and continuing until on or around May 2014.” (Ex. A, EEOC Charge.) The only conduct alleged in the Charge to have occurred after 2014 is the assertion that Plaintiff reported the discrimination in 2015. 3 (Ex. A, EEOC Charge.) Reporting discrimination that occurred up to a year earlier is not a discrete act of discrimination. See Aluru, 176 F. Supp. 3d at 1125 (holding that to support a claim for discrimination, an employment action must cause a significant change in employment status or benefits). Plaintiff has not pleaded anything of the kind. Indeed, the opposite is true; since Plaintiff asserted that the discrimination/harassment ceased in 2014, the 2015 report cannot constitute an independent discriminatory act. 4 3 Even if the Court construes Plaintiff’s “reporting” of the alleged discrimination/harassment as protected activity, which CHI asserts it is not, the act also may be untimely if it occurred prior to September 10, 2015. 4 Although courts liberally construe EEOC charges when determining whether administrative remedies have been exhausted, a liberal construction should not be afforded to claimants like Plaintiff who were represented by counsel at the time they filed the charge. See Bank v. Allied Jewish Fed’n of Colorado, 4 F. Supp. 3d 1238, 1242 (D. Colo. 2013) (noting that EEOC charges are liberally construed when written by a claimant who is unassisted by counsel, but declining to construe plaintiff’s charge of discrimination as liberally because she had legal representation at the time she filed her charge). Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 8 of 17 9 55460080.6 “The contents of the EEOC charge define the contours of any subsequent lawsuit that may be brought.” Bronakowski, 549 F. Supp. 2d at 1278 (quoting Carrero, 2006 WL 2594472 at * 3). By Plaintiff’s own statements in the Charge, the last discriminatory/harassing/retaliatory act occurred in May 2014 – well outside the 300-day limitations period. 5 Plaintiff’s Complaint cannot provide her with a “mulligan” for her failure to timely pursue her allegations of misconduct. As this Court lacks subject matter jurisdiction over Plaintiff’s Title VII claims, the Complaint must be dismissed. B. Plaintiff Cannot Pursue Complaint Allegations That Were Not Raised In The Charge.Next, all discrete incidents of discrimination or harassment that Plaintiff failed to raise in the Charge should not be considered. It is axiomatic that Plaintiff must exhaust administrative remedies for each discrete discriminatory act before she may pursue a claim under Title VII based on the acts (emphasis added). See Martinez, 347 F.3d at 1210 (citing Morgan, 536 U.S. at 110-13). Exhaustion requires that Plaintiff’s EEOC Charge contain allegations of every discriminatory act (emphasis added). See e.g., Aluru, 176 F. Supp. 3d at 1124-25; Bronakowski, 549 F. Supp. 2d at 1278-79; Underwood, 2010 WL 2653316, at *4 (finding plaintiff failed to exhaust her Title VII claim as to the allegations of discrimination in her complaint that were not set out in her EEOC charges); Rydzeski v. Curian Capital, LLC, No. CIV.A.06CV01298WDMBN, 2008 WL 465299, at *4-5 (D. Colo. Feb. 14, 2008) (dismissing plaintiff’s claims of discrimination and retaliation for lack of subject matter jurisdiction because they were based on acts that were not included in the EEOC charge and thus, plaintiff did not exhaust administrative remedies with respect to those acts). 5 Indeed, 767 days elapsed between the last act of discrimination and the filing of the Charge. Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 9 of 17 10 55460080.6 In this case, the allegations in Plaintiff’s Complaint go far beyond the contours of her EEOC charge and contain allegations of numerous discriminatory acts that were not asserted in Plaintiff’s EEOC Charge. 6 (See Ex. A, EEOC Charge.) For example, Plaintiff alleges that her supervisor denied her request for additional job training, (Doc. 1, Compl. ¶ 76). Although the denial of training may rise to a discrete act of discrimination, Plaintiff makes no mention of it in her Charge. (See Ex. A, EEOC Charge.) Likewise, Plaintiff’s assertion that she was “retaliated against for opposing discrimination in the workplace” (Ex. A, EEOC Charge) is too vague, and thus, insufficient to exhaust a claim of retaliation based on failure to provide training. See Underwood, 2010 WL 2653316, at *3. Thus, because Plaintiff did not raise these alleged unlawful employment practices in her Charge, they cannot be the basis of her Title VII claim and must be dismissed for lack of subject matter jurisdiction. II. PLAINTIFF’S CADA CLAIMS SHOULD BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES. Like the Title VII allegations, this Court lacks subject matter jurisdiction over the CADA claims. CADA requires discrimination charges to be filed “within six months after the alleged discriminatory or unfair employment practice occurred.” Colo. Rev. Stat. § 24-34-403. If a claim is not filed within six months, it is time-barred and not actionable. Id. See also Quicker v. Colo. Civil Rights Comm’n, 747 P.2d 682, 683 (Colo. App. 1987) (holding the occurrence of the alleged discriminatory act triggers the six-month time limit in which to file a claim under C.R.S. § 24-34-403). Just like Title VII claims, plaintiffs must exhaust administrative remedies for 6 Omissions include, but are not limited to: Mr. Kakuda mocked Plaintiff in an open meeting, (Doc. 1, Compl. ¶ 70); Mr. Kakuda avoided discussing work matters with Plaintiff, assigned her tasks to other employees, and excluded her from emails and meetings, (Doc. 1, Compl. ¶ 73); Mr. Kakuda did not allow Plaintiff to conduct a “go live” for Houston, (Doc. 1, Compl. ¶ 75); and denied Plaintiff’s request for additional job training, (Doc. 1, Compl. ¶ 76). Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 10 of 17 11 55460080.6 every discrete action of discrimination alleged before commencing a lawsuit. Colo. Rev. Stat. § 24–34–306(14); Aluru, 176 F. Supp. 3d at 1124 n.5 (“The administrative exhaustion requirements provided by Title VII apply with equal force to claims under CADA.”). Failure to exhaust administrative remedies deprives the court of subject matter jurisdiction over the claims. Rydzeski, 2008 WL 465299, at *4 (“Similarly, Colo.Rev.Stat. § 24–34–306(14) requires a person to exhaust proceedings and remedies available administratively before filing a civil law suit.”). In this case, Plaintiff filed her Charge with the Colorado Civil Rights Division and the EEOC on July 6, 2016. (Doc. 1, Compl. ¶ 11.) While the 300-day limitations period under Title VII is September 10, 2015, the six month limitations period under CADA is January 6, 2015. Since Plaintiff’s claims do not fall within the longer 300-day limitation period for Title VII claims, they are untimely for purposes of the six month limitation period under the CADA. 7 See Rydzeski, 2008 WL 465299, at *5. Therefore, all CADA counts should be dismissed. III. PLAINTIFF’S TORT CLAIMS SHOULD BE DISMISSED PURSUANT TO FED. R. CIV. PRO. 12(b)(6). Like the Title VII and CADA claims, Plaintiff is untimely with her tort claims. Both negligence and outrageous conduct causes of action must be filed within two years of the last occurrence, and the Complaint was filed more than two years after the last alleged tortious act. Moreover, her outrageous conduct claim should be dismissed because its basis is too inextricably tied with the alleged discriminatory acts. 7 Additionally, any discriminatory act Plaintiff alleged in her Complaint that was not raised in her Charge is not actionable because Plaintiff failed to exhaust administrative remedies with regard to those allegations. See Aluru, 176 F. Supp. 3d at 1124-45 (holding that the denial of plaintiff’s vacation request was not an adverse employment action sufficient to support a claim under CADA because, although it was a discrete, identifiable act, Plaintiff did not mention it in her charge of discrimination with the CCRD and therefore failed to exhaust administrative remedies as to that issue). Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 11 of 17 12 55460080.6 A. Plaintiff’s Tort Claims Are Time-Barred. This Court should dismiss Plaintiff’s state law tort claims. Here, Plaintiff alleges (1) Negligence; (2) Respondeat Superior; and (3) Outrageous conduct/intentional infliction of emotional distress. These claims are untimely. Where allegations in a complaint are barred by the applicable statute of limitations, the claim is subject to dismissal for failure to state a claim for relief under Fed. R. Civ. Proc. 12(b)(6). Jones v. Bock, 549 U.S. 199, 215 (2007). Tort claims generally accrue “on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence.” Colo. Rev. Stat. § 13-80-108. However, “once some injury has occurred, the statute begins to run, notwithstanding that further injury continues to occur.” Duell v. United Bank of Pueblo, N.A., 892 P.2d 336, 340 (Colo. App. 1994). Under Colorado law, the statute of limitations on a negligence claim starts running “immediately upon the happening of the wrongful act.” Schafer v. Aspen Skiing Corp., 742 F.2d 580, 582 (10th Cir. 1984) (quoting Middelkamp v. Bessemer Irrigating Ditch Co., 103 P. 280, 282 (Colo. 1909)) (internal quotations omitted). A claim for intentional infliction of emotional distress accrues “on the date when the injury was incurred and the emotional impact was felt.” Cline v. S. Star Cent. Gas Pipeline, Inc., 191 F. App’x 822, 827 (10th Cir. 2006) (quoting Moore v. Luther ex. rel. Luther, 291 F. Supp. 2d. 1194, 1199 (D. Kan. 2003)); Colburn v. Kopit, 59 P.3d 295, 297 (Colo. App. 2002). . Under Colorado law, tort claims, including negligence and outrageous conduct, “must be commenced within two years after the cause of action accrues.” Colo. Rev. Stat. § 13-80- 102(1)(a). Respondeat superior claims, which are derivative in nature, are subject to the statute Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 12 of 17 13 55460080.6 of limitations applicable to the underlying claim. Thus, Plaintiff’s respondeat superior claim is subject to the two-year statute of limitation under Colo. Rev. Stat. § 13-80-102(1)(a). Plaintiff commenced this action on October 13, 2016. Thus, to be actionable, the claims must have arisen no earlier than October 13, 2014. First, in regards to her negligent supervision and retention claim, Plaintiff alleges that CHI “was aware” that Mr. Martin posed a risk of continued harm to her, and that despite such knowledge of the potential harm, CHI “retained and failed to adequately reprimand or supervise Mr. Martin.” (Doc. 1, Compl. ¶¶ 136-140.) Thus, Plaintiff’s claim accrued when CHI first became aware of Mr. Martin’s conduct and failed to adequately reprimand or terminate him. Plaintiff alleges that Mr. Martin first harassed her in May 2009. (See Ex. A, EEOC Charge; Doc. 1, ¶ 17.) According to the Complaint, she first reported Martin’s conduct to Mr. Kakuda in August 2009. (Doc. 1, Compl. ¶¶ 36-37.) Hence, it is clear from Plaintiff’s Complaint that her negligent retention claim accrued in or around August 2009. By then, Plaintiff’s claimed injury and its cause were known. (See Doc. 1, Compl. ¶¶ 17-39.) Further, by then, Plaintiff felt the emotional impact of the injury. (See, e.g., Doc. 1, Compl. ¶ 34 (“Mr. Martin’s comments placed Ms. Reveles in apprehension of contact that was harmful, offensive, and unwelcome.”).) Although Plaintiff claims that the injury continued from 2009 to 2014, (Doc. 1, Compl. ¶ 38), Colorado courts have recognized that “once some injury has occurred, the statute begins to run, notwithstanding that further injury continues to occur.” Duell, 892 P.2d at 340. As such, Plaintiff’s claims accrued in or around August 2009, and thus, must have been brought by August 2011. Bringing them five years later clearly falls outside the statute of limitations. Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 13 of 17 14 55460080.6 The same can be said of Plaintiff’s outrageous conduct claims. Since Plaintiff alleges that she was injured by CHI’s failure to adequately reprimand or supervise Mr. Martin, her outrageous conduct/infliction of emotional distress claim also accrued when CHI failed to adequately reprimand or terminate Mr. Martin and when Plaintiff was injured because of CHI’s failure to reprimand or terminate Mr. Martin. (Doc. 1, Compl. ¶¶ 36-38.) Plaintiff has not alleged any facts to indicate that she could not have maintained these actions as early as 2009. Moreover, even if the claims didn’t accrue until Plaintiff’s second report to CHI on March 18, 2014, and CHI’s failure to adequately respond to that complaint, the claim is still time-barred, as this Complaint was filed more than two years later. (Doc. 1, Compl. ¶ 53.) Thus, all tort claims should be dismissed. B. Plaintiff’s Outrageous Conduct Cause Of Action Also Fails To State An Independently Cognizable Claim For Which Relief Can Be Granted. Finally, Plaintiff’s outrageous conduct/infliction of emotional distress claim also should be dismissed because she fails to state an independently cognizable claim for which relief can be granted under Rule 12(b)(6). Under Colorado law, a claim for outrageous conduct must be dismissed for failure to state a claim where the allegations forming the basis of the claim “are the same as those forming the basis for a claim of discrimination.” Visor v. Sprint/United Mgmt. Co., 965 F. Supp. 31, 33 (D. Colo. 1997). This is because outrageous conduct claims are “not meant to be an ‘incantation to augment damages.’” Visor, 965 F. Supp. at 33 (quoting Gard v. Teletronics Pacing Sys., Inc., 859 F. Supp. 1349, 1354 (D.Colo. 1994)). Outrageous conduct contemplates “an extreme level of independently ascertainable misconduct.” Visor, 965 F. Supp. at 33 (quoting Gard, 859 F. Supp. at 1354). Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 14 of 17 15 55460080.6 Plaintiff supports her outrageous conduct/infliction of emotional distress claim by pointing to the same allegations she makes in her Title VII and CADA claims. She incorporates by reference all previous paragraphs of the Complaint, (Doc. 1, Compl. ¶ 149), and then makes conclusory assertions that CHI’s “course of conduct towards Plaintiff as described in this Complaint is so severe in degree that it goes beyond the bounds of decency and is regarded as atrocious and utterly intolerable in a civil community.” 8 (Doc. 1, Compl. ¶ 150.) Plaintiff’s conclusory allegations are not supported by any different factual allegations and, thus, are insufficient to support an independent claim for outrageous conduct. Visor, 965 F. Supp. at 33. Since Plaintiff has not alleged any facts independent of her discrimination and retaliation claims to support her outrageous conduct claim, Plaintiff has failed to state a cognizable claim for outrageous conduct. Accordingly, the claim should be dismissed pursuant to Rule 12(b)(6). CONCLUSION WHEREFORE, for all of the aforementioned reasons, CHI requests that the Court dismiss Plaintiff’s Complaint in its entirety with prejudice. 8 Doubling down, she submits, “Defendant’s actions were extreme and outrageous” (Doc. 1, Compl. ¶ 151), and “as a direct, proximate, and foreseeable result of the Defendant’s intentional actions in this regard, the Plaintiff suffered damages” (Doc. 1, Compl. ¶ 153). Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 15 of 17 16 55460080.6 Respectfully submitted this 22 nd day of December, 2016. s/ Robert E. Entin Robert E. Entin, Atty. No. #6269708 Elizabeth L. Phillips, Atty. No . 46486 Polsinelli PC 1515 Wynkoop St., Ste. 600 Denver, CO 80202 /Telephone: 303-572-9300 ephillips@polsinelli.com Attorneys for Defendant Catholic Health Initiatives Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 16 of 17 17 55460080.6 CERTIFICATE OF SERVICE I hereby certify that on this 22 nd day of December, 2016, I electronically filed a true and correct copy of the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: Katherine W. Beckman Bryan E. Kuhn, Counselor at Law, P.C. 1660 Lincoln Street, Suite 2330 Denver, CO 80264 Telephone: (303) 424-4286 Facsimile: (303) 425-4013 Kate.Beckman@beklegal.com s/ Robert E. Entin Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 17 of 17 EXHIBIT A Case 1:16-cv-02561-CBS Document 14-1 Filed 12/22/16 USDC Colorado Page 1 of 5 Case 1:16-cv-02561-CBS Document 14-1 Filed 12/22/16 USDC Colorado Page 2 of 5 Case 1:16-cv-02561-CBS Document 14-1 Filed 12/22/16 USDC Colorado Page 3 of 5 Case 1:16-cv-02561-CBS Document 14-1 Filed 12/22/16 USDC Colorado Page 4 of 5 Case 1:16-cv-02561-CBS Document 14-1 Filed 12/22/16 USDC Colorado Page 5 of 5