Rawson v. Sears Roebuck & Co.
Decision Date | 27 January 1982 |
Docket Number | Civ. A. No. 81-K-1454. |
Citation | 530 F. Supp. 776 |
Parties | Gary RAWSON, Plaintiff, v. SEARS ROEBUCK & COMPANY, Defendant. |
Court | U.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.
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.
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:
(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.
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.
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):
Id. ( ).
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 ...
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Rawson v. Sears, Roebuck & Co.
...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., ......
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