Rawson v. Sears Roebuck & Co.

Decision Date27 January 1982
Docket NumberCiv. A. No. 81-K-1454.
Citation530 F. Supp. 776
PartiesGary RAWSON, Plaintiff, v. SEARS ROEBUCK & COMPANY, Defendant.
CourtU.S. District Court — District of Colorado

James A. Carleo, Pueblo, Colo., for plaintiff.

Robert S. Slosky, Michael D. Nosler, Rothgerber, Appel & Powers, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

Plaintiff's complaint, which was originally filed in the Pueblo County District Court, alleges that the plaintiff was wrongfully fired from his employment with the defendant and, alternatively, that the defendant wrongfully refused to allow him to resign. He states 11 claims for relief and seeks compensatory and punitive damages. After the plaintiff filed this action, the defendant removed it to this court, which has subject-matter jurisdiction under 28 U.S.C. § 1332(a).

Defendant moved to dismiss all of the plaintiff's claims, pursuant to F.R.Civ.P. 12(b)(6), arguing that none of them state a claim upon which relief may be granted. Briefs have been submitted and the motion is now ripe for determination. I now grant the motion in part and deny it in part.

I. PRIVATE RIGHT OF ACTION

Plaintiff's first claim alleges that the defendant violated C.R.S. § 8-2-116 by firing the plaintiff solely because of his age.1 In its motion to dismiss, defendant argues that this fails to state a claim upon which relief may be granted because the statute does not grant the right to bring a private civil action. In support of this argument, defendant cites C.R.S. § 8-2-117, which states that anyone who violates C.R.S. § 8-2-116 shall be subject to a fine of between $100 and $250. Defendant argues that this penalty provision means that the Colorado Legislature "has not seen fit to legislate any private civil right of action for violation of" C.R.S. § 8-2-116. Defendant then cites, without any elaboration, a string of six cases.

Whether a particular statute grants a private right of action is a question of statutory construction. Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). In Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), the Supreme Court stated a four-part test for determining whether a federal statute has an implied private right of action:

1) Is the plaintiff `one of the class for whose especial benefit the statute was enacted' — that is, does the statute create a federal right in favor of the plaintiff?
2) Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?
3) Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?
4) Is the cause of action one traditionally relegated to state law, in any area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law?

(citations omitted, emphasis in original). Because the present case involves a Colorado statute, the U. S. Supreme Court's analysis is not controlling;2 however, in the absence of any contrary word from the Colorado Supreme Court,3 the Cort test provides useful guidance.

I conclude that the first three elements of the Cort test are satisfied here. First, C.R.S. § 8-2-116 especially singles out employees between the ages of 18 and 60 who have been discharged solely because of their age. By stating his first cause of action, plaintiff has alleged that he is within this class. Second, other statutes indicate that the Colorado Legislature intended to create a private right of action here. C.R.S. § 8-3-121(1) states,

Any person who suffers injury because of an unfair labor practice has a right of action, jointly and severally, against all persons participating in said practice for damages caused to the injured person thereby.

C.R.S. § 8-3-108(1)(l) provides that unfair labor practices include committing "any crime or misdemeanor in connection with any controversy as to employment relations." This court of course cannot determine whether the defendant has criminally violated C.R.S. § 8-2-116. However, the Colorado legislature's broad definition of unfair labor practices indicates an intent to create a private right of action to anyone who can prove by a preponderance of the evidence that a defendant has violated a criminal labor statute. I conclude that the Colorado legislature intended to create a private right of action under C.R.S. § 8-2-116 and that such a right of action is consistent with the state's legislative scheme in labor relations. Plaintiff's first claim for relief therefore will not be dismissed.

II. OUTRAGEOUS CONDUCT

Plaintiff's second claim alleges that defendant "willfully, wantonly, and maliciously fired the plaintiff, ... and would not allow him to resign with dignity." It then alleges that defendant's actions constitute outrageous conduct. His third claim alleges that defendant's acts were intended to "cause extreme emotional distress to the plaintiff," and did in fact do so. Defendant's motion to dismiss simply states,

Plaintiff's Second and Third Claims for Relief do not state a claim upon which relief can be granted for outrageous conduct resulting in emotional distress and is (sic) properly subject to dismissal.

In Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970), the Colorado Supreme Court considered the tort of intentional or reckless infliction of emotional distress. In that case the plaintiff has alleged that she had entered into a $180 health studio contract, became disabled at the first lesson and was then unable to continue her exercise sessions. After one of the defendants refused to allow her to rescind the contract, she continued to make payments, reducing the unpaid balance to $44.50. Although she had promised to pay that balance, her complaint alleged that the defendants repeatedly harassed her with numerous phone calls and letters demanding payment, and inquired with her employer about garnishing her wages, even though they did not have an outstanding judgment against her. Her complaint further alleged that defendants' acts

were done wilfully and wantonly in disregard of her rights; and that the acts of the defendants were done intentionally with the intention of causing her to suffer mental anguish, embarrassment, humiliation and extreme mental suffering.

Id. at 173, 476 P.2d at 754 (emphasis in original).

The court found that this stated a cause of action, and reversed the trial court's granting of defendants' motion to dismiss. Id. at 177, 476 P.2d at 756. The court adopted Rest.2d Torts § 46 (1965):

Outrageous Conduct Causing Severe Emotional Distress:
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, ....

The court also quoted a Restatement Comment

liability has been found only in those cases where the defendant's conduct has been extreme and outrageous.
`* * * Liability has been found only where the conduct has been 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. Generally the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, "Outrageous!"'

Id. (emphasis in original, quoting Rest. 2d Torts § 46, comment d, at 73).

Several subsequent Colorado Court of Appeals cases have considered intentional or reckless infliction of emotional distress. Because I must determine whether a particular fact pattern is sufficient to state a claim under this tort, I will summarize the facts of these previous cases.

Three appellate cases upheld jury findings of intentional infliction of emotional distress. In Enright v. Groves, 39 Colo.App. 39, 560 P.2d 851, 854 (1977), a scuffle resulted after the defendant police officer wrongfully demanded to see plaintiff's driver's license. The appellate court found the police officer's uncompromising conduct and his handcuffing and propelling of the defendant to be substantial evidence to support the jury's verdict. In DeCicco v. Trinidad Area Health Association, 40 Colo.App. 63, 573 P.2d 559, 562 (1977), the defendants refused to furnish the requested ambulance service to plaintiff's wife because her attending physician had recently resigned from the defendant's hospital. The appellate court found that the jury's verdict for the plaintiff was reasonable, because the defendants' action delayed taking a critically ill person to a hospital. In Meiter v. Cavanaugh, 40 Colo.App. 454, 580 P.2d 399, 400-01 (1978), the defendant, a lawyer, intentionally breached a house sales contract with the plaintiff, who was not sophisticated in legal matters, by refusing to vacate the house by the date required. The defendant also called the plaintiff offensive names, wrongfully threatened court action against her, and then left the house that he had sold to her in a seriously damaged condition. The appellate court noted that any one of these actions would probably not survive a directed-verdict motion, but that together they supported the jury's verdict. 580 P.2d at 401.

One appellate case sustained a trial court judgment in favor of the defendant in an intentional infliction of emotional distress case. In Paris v. Division of State Compensation Insurance Fund, Colo.App., 517 P.2d 1353, 1355 (1973), the defendant had sent the plaintiff, a paraplegic, a letter of reprimand, which also stated that his job had been created for him because of his handicap. The appellate court affirmed the trial court's finding that this did not establish a case for intentional infliction of emotional distress.

Four appellate cases affirmed trial courts' dismissing intentional infliction of emotional distress claims before trial. In Deming v. Kellogg, 41 Colo.App. 264, 583 P.2d 944, 945-56 (1979), the court ...

To continue reading

Request your trial
34 cases
  • Rawson v. Sears, Roebuck & Co.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 10 Junio 1987
    ...8-2-116 and that such a right of action is consistent with the state's legislative scheme in labor relations." Rawson v. Sears Roebuck & Co., 530 F.Supp. 776, 778 (D.Colo.1982). It also denied, in a published opinion, Sears' later motion for summary judgment. Rawson v. Sears Roebuck & Co., ......
  • Rice v. Rent-A-Center of America, Inc.
    • United States
    • U.S. District Court — Northern District of Indiana
    • 28 Mayo 1987
    ...SO ORDERED. 1 Mr. Rice cites the court to Gill v. United States Rubber Co., 195 F.Supp. 837 (N.D.Ind.1961), and Rawson v. Sears Roebuck & Co., 530 F.Supp. 776 (D.Colo.1982), in support of his claim for damages under a theory of promissory estoppel. These cases, however, are distinguishable ......
  • Katz v. City of Aurora
    • United States
    • U.S. District Court — District of Colorado
    • 18 Febrero 2000
    ...had willfully, wantonly, and maliciously fired him did not rise to the required threshold of outrageousness. Rawson v. Sears, Roebuck & Co., 530 F.Supp. 776, 780-81 (D.Colo.1982). An employer's failure to follow its own personnel policies does not amount to intentional infliction of emotion......
  • Cassidy v. Millers Cas. Ins. Co. of Texas, Civ.A. No. 94-B-1480.
    • United States
    • U.S. District Court — District of Colorado
    • 2 Abril 1998
    ...issue. Simmons v. Prudential Ins. Co. of America, 641 F.Supp. 675, 683 (D.Colo.1986) (citations omitted). In Rawson v. Sears Roebuck & Co., 530 F.Supp. 776, 780 (D.Colo.1982), rev'd on other grounds, 822 F.2d 908 (10th Cir. 1987), Judge Kane determined that a plaintiff must establish a cert......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT