Waters v. Durango Fire & Rescue Auth. - No. 09-cv-00272-PAB-MJW, 2009 U.S. Dist. LEXIS 122235 (D. Colo. Dec. 16, 2009)

Rule:

The Colorado Government Immunity Act, Colo. Rev. Stat. § 24-10-101, et seq. provides that a public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant. Pursuant to the Age Discrimination in Employment Act, it shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. Also, to recover under the Americans With Disabilities Act, 42 U.S.C. § 12101-12213, plaintiff would have to show that he 1) is a disabled person as defined by the ADA, 2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job held, and 3) defendant discriminated against him because of his disability.

Facts:

The case arose out of an investigation that defendant Durango Fire and Rescue Authority initiated regarding allegations against plaintiff Larry L. Waters by its fellow employees. During the investigation, defendant placed plaintiff on leave, and after the investigation concluded, plaintiff did not return to work contending that the emotional toll of the investigation rendered him disabled. Defendant then terminated plaintiff. Plaintiff alleged that defendant, on account of conducting an investigation contrary to the terms of its personnel manual and terminating him for failing to return to work, has committed the torts of intentional and negligent infliction of emotional distress, has violated his procedural due process rights, and has discriminated against him on account of age and disability. Defendant now sought the dismissal of plaintiff's claims in the amended complaint for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

Issue:

Should the defendant’s motion to dismiss plaintiff’s claims be granted?

Answer:

Yes.

Conclusion:

The court held that defendant was immune from plaintiff’s claim for intentional and negligent infliction of emotional distress. As the Colorado Government Immunity Act, Colo. Rev. Stat. § 24-10-101, et seq. (CGIA) provides that "a public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant. In this case, defendant was alleged to be a multijurisdictional political subdivision formed by the City of Durango. As such, defendant was a public entity within the meaning of the CGIA. Thus, plaintiff's state law claims, that were intentional and negligent infliction of emotional distress, both "lie in tort." Consequently, the court found that plaintiff has failed to state a claim for violation of his due process rights, as well as to his disability discrimination for having failed to alleged facts sufficient to support a finding on an essential element of a disability discrimination claim- that he was qualified, with or without reasonable accommodation, to perform the essential functions of the job, plaintiff's claim must be dismissed.