530 F.Supp. 776 (D.Colo. 1982), Civ. A. 81-K-1454, Rawson v. Sears Roebuck & Co.

Docket NºCiv. A. 81-K-1454
Citation530 F.Supp. 776
Party NameRawson v. Sears Roebuck & Co.
Case DateJanuary 27, 1982
CourtUnited States District Courts, 10th Circuit, District of Colorado

Page 776

530 F.Supp. 776 (D.Colo. 1982)

Gary RAWSON, Plaintiff,

v.

SEARS ROEBUCK & COMPANY, Defendant.

Civ. A. No. 81-K-1454.

United States District Court, D. Colorado.

Jan. 27, 1982

Page 777

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. s 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. 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. s 8-2-117, which states that anyone who violates C.R.S. 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. 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) (I)s 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) (I)s there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?

3) (I)s it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?

4) (I)s 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?

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(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. 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. 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. 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. 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. 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 (p)laintiff, ... 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 (p)laintiff," 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,

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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...

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