This matter comes before the Court on the Defendant Ball Aerospace & Technologies Corporation’s Motion for Summary Judgment (#116). The pro se Plaintiff Alan C. Lammle has not responded to the motion.¹

Lammle v. Ball Aerospace & Technologies Corporation Doc. 156

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56(e)(3). In doing so, however, the Court deems Mr. Lammle to have conceded the truth of any properly-supported facts alleged by the Defendant. Fed. R. Civ. P. 56(e)(2). With that standard in mind, the Court turns to the facts as asserted in the Defendant’s motion. In 2005, Mr. Lammle was hired by Ball Aerospace & Technologies Corporation (Ball), an information technology company, as a computer technician in the Information Management (IM) Department. In that position, Mr. Lammle served as the dedicated technician for engineers working at Ball. He was responsible for servicing and repairing their computers, troubleshooting software problems, and performing service calls to the engineers.

In June 2008, Mr. Lammle was hospitalized with pancreatitis. Due to his health problems, Mr. Lammle took a leave of absence from work until March 3, 2009. Upon returning to work, Mr. Lammle discovered that in his absence, the IM Department had been reorganized. Mr. Lammle was told that he would no longer be providing field support to the engineers. Instead, he was assigned to a service desk position. At the service desk, Mr. Lammle was responsible for providing remote computer service to all customers. Mr. Lammle continued to receive the same salary and benefits as he did before his leave of absence. Shortly after returning to work, Mr. Lammle complained to his supervisors that he had been demoted. He also complained that he was not being provided with sufficient training for his new position. In an e-mail sent to the Human Resources manager, Toya Specman, Mr. Lammle stated that he thought he would eventually be laid off because of his age and his “perceived disability.” About a week later, Mr. Lammle’s wife and former attorney, Amy Jane Simmons, sent a letter to Ball’s legal department, alleging that Mr. Lammle had been falsely accused of sleeping on the job and that the accusation was part of a scheme intended to bring about Mr. Lammle’s termination. On March 27, 2009, Ms. Simmons sent another letter to Ball’s legal department. Ms. Simmons alleged that Mr. Lammle was suffering “harassment” because his pay was not directly deposited into his bank account that afternoon. On March 31, 2009, Mr. Lammle filed a Charge of Discrimination with the Equal Employment Opportunity Commission. In his Charge, Mr. Lammle alleged that he had been “discriminated against based on [his] age, 47, in violation of the [ADEA] and based on a perceived disability... in violation of the ADA.” Specifically, he alleged that after his “demotion,” he was “subjected to harassment and adverse terms and conditions of employment when [Ball] failed to give [him] appropriate training, and access to tools needed to perform the duties of [his] reassigned position.” He further alleged that he was “issued a fabricated verbal warning [for sleeping on the job] under threat of termination on March 20, 2009.”

In April, Mr. Lammle sent another e-mail to Ms. Speckman, raising additional allegations of harassment. In addition his allegations of being denied training and not being paid properly, Mr. Lammle alleged that another service desk employee appeared to have a web camera directed at him, so that “[he] could be fired for sleeping on the job” if he even “blinks or closes his eyes.” Finally, in May, Ms. Simmons wrote another letter to Ball’s legal department. She alleged that not only was Mr. Lammle being monitored by web cam and remote access of his desktop, but that someone was going through his personal lunchbox. She alleged that someone had stolen a used insulin syringe out of his lunchbox. Ms. Simmons suggested that perhaps the syringe was taken so that it could be tested for other substances and used “to fabricate another reason to terminate [Mr. Lammle].”

In June 2009, Mr. Lammle was hospitalized again. After he was discharged, Mr. Lammle did not report back to work. Instead, he began a second leave of absence. When he returned to work on December 1, 2010, he was informed that his position had been filled. Mr. Lammle received a right to sue letter from the EEOC in September 2011. He then commenced this action. As narrowed by earlier proceedings, Mr. Lammle has three remaining claims in this case: (1) disability discrimination under the Americans with Disabilities Act (ADA), (2) age discrimination under the Age Discrimination in Employment Act (ADEA), and (3) common law intentional infliction of emotional distress. Ball seeks summary judgment on each claim.

If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Under Colorado law, a plaintiff may recover for the tort of intentional infliction of emotional distress (otherwise known as “outrageous conduct”) if the plaintiff proves that (1) the defendant engaged in extreme and outrageous conduct, (2) recklessly or with the intent of causing the plaintiff severe emotional distress, and (3) causing the plaintiff to suffer severe emotional distress. Han Ye Lee v. Colo. Times, Inc., 222 P.3d 957, 966-67 (Colo. App. 2009).

Ball argues that Mr. Lammle cannot prove any of these elements.

Before permitting a plaintiff to present a claim for outrageous conduct to a jury, however, the Court must rule on the threshold issue of whether the plaintiff has alleged conduct that is outrageous as a matter of law. Coors Brewing Co. v. Floyd, 978 P.2d 663 (Colo. 1999). A claim for outrageous conduct contemplates only acts that are “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Destefano v. Grabrian, 762 P.2d 275, 286 (Colo. 1988).

Here, it appears Mr. Lammle alleges that Ball engaged in outrageous conduct when it took certain employment actions against him, and when it failed to prevent the “discrimination” from occurring. To the extent Mr. Lammle relies on the same conduct that formed the basis of his statutory claims, that conduct cannot be used as the basis of his claim for intentional infliction of emotional distress. See Emerson c. Wembley USA Inc., 433 F.Supp.2d 1200, 1228 (D.Colo. 2006); see also Katz v. City of Aurora, 85 F.Supp.2d 1012, 1021 (D.Colo. 2000) (noting under Colorado law, where the allegations forming the basis of a claim for outrageous conduct are the same as those forming the basis for a claim of discrimination, and nothing more, they fail to state an independently cognizable claim). Disregarding Mr. Lammle’s allegations that form the basis of his statutory claims, his only allegations as to his outrageous conduct claim are that Ball failed to “assist and/or attempt to rectify the discrimination.” As to those allegations, the Court finds that they are not sufficiently outrageous to support a claim for outrageous conduct. Indeed, as noted above, Mr. Lammle has failed to establish that he was subjected to discrimination. Accordingly, the Court finds that Ball is entitled to judgment on this claim.

Dated this 1st day of September, 2013.

BY THE COURT:

Marcia S.Krieger

Chief United States District Judge

Retrieved from: