Opinion
Civil Action 1:20-cv-03687-WJM-KLM
03-17-2022
STEPHEN GORSHOW, Plaintiff, v. EQHEALTH SOLUTIONS, GLEN J. GOEMI, RON RITCHEY, HEATHER WICKER, CHRISTINE GATLIN, KATHERINE DENNEY, KATRINA FEYINTOLA, JOHN DOE, and JANE DOE Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kristen L. Mix, United States Magistrate Judge.
This matter is before the Court on Plaintiff's Opposed Motion to Amend the Amended Complaint [#55] (the “Motion”). The Motion [#55] seeks to cure certain deficiencies previously noted by the Court as to the State Defendants, as explained in more detail below. Defendants Katherine Denney and Katrina Feyintola (collectively “State Defendants”) filed a Response [#60] in opposition to the Motion, and Plaintiff filed a Reply [#62]. The Motion has been referred to the undersigned pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72. See [#19, #58]. The Court has reviewed the Motion, the Response, the Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#55] be DENIED.
“[#55]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Order.
I. Background
This action, brought in November 2020, arises out of Plaintiff's employment with eQHealth Solutions (“EQHS”). The Amended Complaint [#28] asserted six claims: 1) disability discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.; against EQHS; (2) interference with contractual relations in violation of Colorado state law against State Defendants; (3) wrongful termination in violation of Colorado public policy against EQHS, Ron Ritchey, Heather Wicker, Christine Gatlin, and Glen Golemi (collectively “EQHS Defendants”); (4) promissory estoppel against EQHS; (5) conspiracy against all Defendants; and (6) deprivation of procedural due process against the State Defendants.
As to the relevant facts, Plaintiff began his employment with Defendant EQHS in March 2017. Am. Compl. [#28] ¶ 20. EQHS held a contract with the Colorado Department of Health Care Policy and Financing (“HCPF”), a state-wide Medicaid Program. Id. ¶ 21. Plaintiff's primary duties were to review cases for medical necessity, advise EQHS and HCPF on these issues, and testify in hearings related to medical necessity denials. Id. ¶ 22. Plaintiff alleges that he notified EQHS of his hearing impairment, which he avers causes him significant difficulty in understanding conversation in situations with background noise or decreased sound quality, such as telephone conversations with individuals using speaker phones. Id. ¶¶ 19, 24.
Around November 2018, Plaintiff began working with State Defendants and others from HCPF on matters dealing with appeal hearings. Am. Compl. [#28] ¶ 30. In December 2018, Plaintiff was asked to testify regarding Continuous Glucose Monitoring devices (“CGM”) for adults. Id. ¶ 31. While there is no written policy from HCPF regarding the use or prescription of CGM, Plaintiff avers that an unwritten procedure of HCPF nevertheless suggested they not be made available to adults. Id. Plaintiff believed, however, that a CGM device was medically necessary for an adult and refused to testify otherwise. Id. As a result of his refusal to testify to the contrary, Plaintiff alleges that State Defendants began to falsely discredit Plaintiff's performance and personal competence. Id. ¶ 32. Plaintiff asserts that these actions were done without his knowledge and with no consideration of his workload or disability. Id. ¶¶ 34-35, 38. Accordingly, Plaintiff asserts that he was denied any semblance of due process and the opportunity to provide truthful evidence. Id. ¶ 46. Plaintiff further asserts that State Defendants were consciously aware that their conduct in response to Plaintiff's refusal to lie in testimony would endanger Plaintiff's reputation and continued employment. Id. ¶ 48.
On September 27, 2019, Plaintiff was notified by Ron Ritchey (“Ritchey”), the Chief Medical Officer for EQHS, that there had been complaints about his performance during conference calls and that he would be removed from all activities involving contact with and related to HCPF. Am. Compl. [#28] ¶ 50. Plaintiff informed Ritchey that he attributed the complaints and comments to his disability, and requested that accommodations be made to enable him to hear conference calls more clearly. Id. ¶ 52. Ritchey promised Plaintiff that he would receive reasonable accommodations regarding his hearing disability, and that Ritchey would talk to State Defendant Katherine Denney (“Denney”) about Plaintiff's hearing disability. Id. ¶ 55-56. However, when Denney was informed by Ritchey of Plaintiff's hearing impairment, she allegedly stated that “this new information did not matter and did not change HCPF's position.” Id. ¶ 58.
On or about October 14, 2019, Plaintiff was given the choice of either taking a demotion from his position and a salary decrease or resigning. Am. Compl. [#28] ¶ 61. Plaintiff avers that the conspiratorial actions and unlawful decisions by the State Defendants and other individual defendants directly resulted in Plaintiff's unlawful, constructive discharge, and their malicious and discriminatory statements about Plaintiff's ability to perform his job damaged his reputation and ability to secure future employment. Id. ¶ 67. As is relevant here, Plaintiff asserted that State Defendants (1) unlawfully interfered with an existing contract and with prospective economic advantage in violation of §1983, (2) conspired against Plaintiff, and (3) violated Plaintiff's due process rights under the Fourteenth Amendment. Id. ¶¶ 79-118.
State Defendants filed a Motion to Dismiss [#35] as to the claims asserted against them. District Judge William J. Martinez granted the Motion to Dismiss [#35], dismissing without prejudice Plaintiff's first two claims against State Defendants and dismissing with prejudice the final claim. Order [#54] at 8.
In relation to the first two claims, the Court agreed with the State Defendants that they were entitled to immunity pursuant to the Colorado Governmental Immunity Act (“CGIA”). Order [#54] at 8. The CGIA precludes tort claims against state employees unless the state has specifically waived immunity or the claim arises out of willful and wanton conduct by individual state employees. Id. at 7. Both parties agreed that the state did not waive immunity, and Plaintiff was therefore required to allege willful and wanton conduct by State Defendants. Id.
Plaintiff argued in response to the Motion to Dismiss [#35] that he pled plausible allegations of willful and wanton conduct because he averred that State Defendants consciously disregarded the impact of their actions in a way such that the Court, drawing on its judicial experience and common sense, could infer willful and wanton conduct. Response [#39] at 16. The willful and wanton conduct alleged by Plaintiff in the Amended Complaint [#28] was that State Defendants were seeking revenge for Plaintiff refusing to testify falsely, that they knew of Plaintiff's disability, that State Defendants began conspiring against Plaintiff by gathering information and making maliciously false and discriminatory statements without his knowledge and without giving consideration to his workload or disability, and that because of these actions, Plaintiff's reputation and continued employment were endangered. Id. ¶¶ 24-67. Judge Martinez rejected Plaintiff's argument that he pled plausible allegations of willful and wanton conduct. The Court found that Plaintiff's contentions that State Defendants complained about his work due to Plaintiff's refusal to testify falsely were “purely speculative.” Order [#54] at 7-8.
The Court further explained that Plaintiff “does not raise any facts suggesting that his refusal to testify was the underlying reason for the [State Defendants'] complaints,” and that Plaintiff “does not allege that State Defendants personally directed him to make false statements, nor does [Plaintiff] identify their connection with the HCPF officials who allegedly did.” Id. Because Plaintiff's allegations are “speculative, with no facts suggesting State Defendants possessed disingenuous or ulterior motives in complaining to EQHS,” the Court found that Plaintiff “has failed to plausibly allege that their conduct is willful and wanton.” Id. at 8. Thus, the Court dismissed the claims against the State Defendants under the CGIA. Id. However, the Court ruled that if Plaintiff could plausibly plead facts to cure the pleading deficiencies noted as to the State Defendants, he could file a motion seeking leave to file an amended complaint. Id. at 8-9.
Plaintiff subsequently filed the Motion [#55] at issue and the proposed Second Amended Complaint [#56]. Plaintiff asserts that the Motion [#55] should be granted because it “plausibly pleads facts, curing the pleading deficiencies noted.” Id. at 3. The State Defendants contend in their Response [#60] that Plaintiff has not cured the deficiencies and that Plaintiff's Motion [#55] should be denied.
II. Analysis
A. Rule 16(b)(4)
As an initial matter, the parties' deadline to amend pleadings was March 12, 2021. Scheduling Order [#34] at 13. The Motion was filed on October 12, 2021, and is therefore untimely. “After a scheduling order deadline, a party seeking leave to amend must demonstrate (1) good cause for seeking modification under Fed.R.Civ.P. 16(b)(4); and (2) satisfaction of the Rule 15(a) standard.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015) (quoting Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014) (internal quotations omitted)). Under Rule 16(b), a scheduling order deadline “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). The Rule 16(b)(4) standard requires that the movant show “the scheduling deadlines cannot be met despite [the movant's] diligent efforts.” Gorsuch, 771 F.3d at 1240 (quoting Pumpco, Inc. v. Schenker Int'l, Inc., 204 F.R.D. 667, 688 (D. Colo. 2001)). To prove diligence, the movant must provide an adequate explanation for any delay. Minter v. Prime Equipment Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006).
In this case, the Court finds good cause and an adequate explanation for the delay because the Court explicitly gave Plaintiff an opportunity to file a motion to amend the complaint. See Order [#54] at 8-9. The Motion [#55] and Second Amended Complaint [#56] were timely submitted within the Court-ordered deadline. Accordingly, the Court finds that Plaintiff has satisfied Rule 16(b)(4).
B. Rule 15(a)
Having found that Plaintiff has satisfied the requirements of Rule 16(b)(4), the Court turns to Rule 15(a). See Gorsuch, 771 F.3d at 1240. The Court has discretion to grant a party leave to amend its pleadings. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Fed. R. Civ. P 15(a)(2) (“The court should freely give leave when justice so requires.”). “In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.-the leave sought should, as the rules require, ‘be freely given.'” Foman, 371 U.S. at 182 (quoting Fed.R.Civ.P. 15(a)(2)). Here, State Defendants argue that the proposed amendment would be futile because Plaintiff has still not pled a plausible claim of willful and wanton conduct that would overcome immunity from suit under the CGIA. Response [#60] at 3-4.
An amendment is futile if it would not survive a motion to dismiss. See Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing Jefferson Cnty. Sch. Dist. v. Moody's Investor's Servs., 175 F.3d 848, 859 (10th Cir. 1999)). In other words, “the futility question is functionally equivalent to the question whether a complaint may be dismissed for failure to state a claim.” Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999). When examining whether a party has failed to state a claim, courts generally look to “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994).
However, “all issues related to an employee's immunity, including factual issues such as whether a public employee acted in a willful and wanton manner, are to be determined by the district court prior to trial, pursuant to Rule 12(b)(1).” Duke v. Gunnison Cnty. Sheriff's Office, 456 P.3d 38, 42, 44 (Colo.App. 2019). When resolving factual disputes on which sovereign immunity depends, “the trial court, rather than a jury, is the finder of fact.” Hernandez v. City and Cnty. Of Denver, 439 P.3d 57, 60 (Colo.App. 2018) (citing Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924 (Colo. 1993) (en banc)). Thus, evidence can be considered, and the court may rule without a hearing “when there is no evidentiary dispute.” Duke, 456 P.3d at 44.
Although not defined in the CGIA, willful and wanton conduct has been defined under controlling authority to be actions that are “not merely negligent; instead, it must exhibit a conscious disregard for the danger.” Martinez v. Estate of Bleck, 379 P.3d 315, 323 (Colo. 2016). Moreover, willful and wanton conduct has been said to include conduct where the defendant “purposefully pursued a course of action or inaction that he or she considered would probably result in harm to [the plaintiff].” Castaldo v. Stone, 192 F.Supp.2d 1124, 1141 (D. Colo. 2001). “It is 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.” Estate of Grabbingbear by Feltman v. Europe, No. 18-cv-3113-WJM-STV, 2022 WL 159812, at *7 (D. Colo. January 18, 2022) (quoting Moody v. Ungerer, 885 P.2d 200, 205 (Colo. 1994)).
“[I]t does not suffice for the plaintiff to allege in the complaint simply that ‘[the defendant] acted willfully and wantonly' - facts from which ‘willful and wanton' behavior can be inferred must be pled.” Moses-El v. City and County of Denver, No. 17-cv-03018-MSK-NRN, 2020 WL 859240, at *2 (D. Colo. February 21, 2020). For instance, if a plaintiff needs to show that a defendant drove his car in a willful and reckless manner in causing an accident, simply alleging that the defendant caused an accident will not suffice. Id.
In their Response [#60], State Defendants highlight that the pleading deficiency specified by the Court was that Plaintiff failed to allege nonspeculative allegations of fact that State Defendants possessed ulterior motives in raising concerns about his job performance such that their conduct could be deemed willful and wanton. Response [#60] at 2. State Defendants contend that while Plaintiff has changed the allegations regarding their state of mind in several of the revised paragraphs by making “liberal use of words like ‘willfully' and ‘maliciously,'” the proposed Second Amended Complaint [#56] still does not address the Court's pleading concerns. Id. State Defendants further highlight the Court's finding that Plaintiff “did not allege that the State Defendants personally directed him to make false statements or that they had any material connection to the HCPF officials who allegedly did.” Id. at 5. According to State Defendants, the proposed Second Amended Complaint [#56] still does not plead any nonspeculative allegations that they directed Plaintiff to testify falsely in any hearings, and does not “connect the dots” between the unnamed HCPF official who supposedly did and the State Defendants. Id at 5-6. State Defendants further contend that discovery concluded months before the Motion [#55] was filed, and Plaintiff still has not stated any nonspeculative facts or provided any evidence as to how State Defendants' concerns about Plaintiff's job performance related to or were in retaliation for the alleged dispute over CGMs pursuant to HCPF's policy. Id. at 8-9.
The Court agrees with the State Defendants and finds that Plaintiff has not cured the deficiencies found by Judge Martinez. Plaintiff still has not alleged any facts suggesting that his refusal to testify was the underlying reason for the complaints by the State Defendants about Plaintiff's job performance, or that those concerns were made for any reasons other than legitimate concerns about his work. See Order [#54] at 6-7. The mere fact that there was an informal policy of HCPF that CGMs should not be a covered benefit for adults does not plausibly raise an inference that the State Defendants decided to complain about Plaintiff's job performance because he chose not to testify consistent with that policy, without some facts demonstrating that link, especially because Plaintiff has not alleged that the State Defendants were actually involved in that dispute. Moreover, while Plaintiff alleges retaliation by the State Defendants from his refusal to testify, he fails to allege how they knew of that issue. The State Defendants present deposition testimony that they did not know of this issue and that their concerns about Plaintiff's work performance were not related to that issue. See Response [#60] at 5 and Exhibits. While Plaintiff asserts that the Court should consider the fact that discovery has occurred in ruling on the Motion [#55] and cites broadly to his Opposition to Defendant eQHealth's Solutions' Motion for Summary Judgment [#61] (“Opposition”) (Reply [#62] at 3), he presents no explanation as to how the evidence he cites counters Defendants' evidence. Id. Furthermore, the Court finds after reviewing the cited portions of the Opposition [#61] that it does not counter the evidence offered by State Defendants.
In addition, although Plaintiff has added a conclusory allegation that both State Defendants have “direct control over the policies and operations of the UM department” (Second Am. Comp. [#56] at ¶ 32, n. 6), he does not state any factual allegations explaining the source of this alleged control or how it relates to the alleged dispute about HCPF's policy about CGMs. See Resp. [#60] at 6. Moreover, Plaintiff still does not allege that State Defendants personally directed him to make false statements about CGMs, nor does he identify their connection with the HCPF officials who allegedly did. See Order [#54] at 8. At best, Plaintiff's proposed Second Amended Complaint [#56] alleges a disagreement between Plaintiff and HCPF over the medical necessity of a specific service. The conclusion that this conflict led the State Defendants to raise concerns about his performance is still pure speculation. See Am. Compl. [#28] at ¶¶ 43, 47 (adding conclusory statements that the State Defendants were motivated by retaliation for Plaintiff's unwillingness to lie).
In fact, when comparing the First Amended Complaint [#28] to the proposed Second Amended Complaint [#56], Plaintiff alleges almost no new facts to comply with the Order [#54] to cure the deficiencies noted. As Defendants note, the vast majority of changes between the two complaints in an attempt to overcome the factual pleading deficiencies are simple changes in phrases such as “unlawfully and maliciously” to “willfully and wantonly,” with little else changed or added to the altered paragraphs. Cf. First Am. Compl. [#28] ¶¶ 32, 37-38, 43, 46, 60, 67, 82, 105, 108-109, with Second Am. Compl. [#56] ¶¶ 32, 37-38, 43, 46, 60, 67, 82, 105, 108-109. In fact, one of the several paragraphs that Plaintiff specified as having been changed to meet the pleading deficiency is copied verbatim from the First Amended Complaint [#28], and therefore obviously does not cure any deficiencies in connection with the same. See Am. Compl. [#28] and Second Am. Compl [#56] ¶ 60. Regardless, given that the Court specified that the pleading deficiency was due to a lack of non-speculative facts, it is insufficient for Plaintiff to principally make changes to the State Defendants' alleged state of mind in an attempt to cure the deficiencies. Again, facts must be pled from which the Court could plausibly infer this behavior. See Moses-El, 2020 WL 859240, at *2.
When comparing the Amended Complaint [#28] with the proposed Second Amended Complaint [#56], Plaintiff only truly added a new factual allegation in ¶ 58. The change within this paragraph was the addition of a sentence that Kunal Bhat, former Manager of UM Programs for HCPF, disclosed to State Defendants that the career ending decision regarding Plaintiff had already been reached before Ritchey's first meeting with Plaintiff. Second Am. Compl. [#28] at ¶ 58. However, this addition still does not help to establish that State Defendants themselves possessed disingenuous or ulterior motives, and it does not establish a connection between State Defendants and whoever directed Plaintiff to make false statements.
Plaintiff further asserts that the Court should infer an ulterior or disingenuous motive sufficient to establish willful and wanton conduct because Plaintiff refused to testify in compliance with HCPF's unwritten policy, that this policy was created and maintained by State Defendants, and because of State Defendant's intimate involvement with the policy they decided to begin a secret campaign to replace Plaintiff. See Reply [#62] at 56. However, the facts remain largely unchanged between the First Amended Complaint [#28] and the Second Amended Complaint [#56]. Plaintiff did not plead any new facts or present evidence that the HCPF policy was created and maintained by the State Defendants or that they were intimately involved with it. The same deficiencies found by Judge Martinez still exist.
In closing, the Court finds that nearly all of Plaintiff's changes to the proposed Second Amended Complaint [#56] are labels, conclusory in nature, and a recitation of the elements needed to overcome the CGIA. Cf., e.g., First Am. Compl. [#28] ¶ 82 (“Individual Defendants of HCPF, Denney and Feyintola, began to maliciously and pretextually gather and exaggerated derogatory and misleading information....”) with Second Am. Compl. [#56] ¶ 82 (“Individual Defendants of HCPF, Denney and Feyintola, with willful and wanton intent, pretextually gathered exaggerated derogatory and misleading information....”). By and large, Plaintiff did not allege any new facts or present any evidence to raise his claims above the speculative level. Therefore, the Court finds that Plaintiff did not cure the pleading deficiencies found by Judge Martinez in his Order [#54] as to the State Defendants.
III. Conclusion
For the reasons stated above, IT IS RECOMMENDED that the Motion to Amend the Amended Complaint [#55] be DENIED.
IT IS ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).