Alarid v. MacLean Power, LLC

Decision Date16 September 2015
Docket NumberCivil Action No. 14-cv-03125-PAB-KMT
Parties Lorraine Alarid, Plaintiff, v. MacLean Power, LLC d/b/a Foresight Products, a Delaware corporation, Edwina Hurtado, individually, and Jose Alvarado, individually, Defendants.
CourtU.S. District Court — District of Colorado

Craig Tyler Truitt, Whitney Charles Traylor, Traylor Law Group, LLC, Denver, CO, for Plaintiff.

Gregory Steve Hearing, II, Laurie J. Rust, Gordon & Rees, LLP, Denver, CO, for Defendants.

ORDER

PHILIP A. BRIMMER, United States District Judge

This matter is before the Court on the Partial Motion to Dismiss [Docket No. 20] filed by defendant MacLean Power, LLC d/b/a Foresight Products.1 Defendant seeks to dismiss plaintiff's state law claims for negligent supervision and negligent retention.

I. BACKGROUND2

Plaintiff Lorraine Alarid began working for defendant in 1998 as an assembly and packaging worker. Docket No. 6 at 3, ¶ 10. In 2009, defendant hired Jose Alvarado. Id. at 3, ¶ 11. In 2010 and 2011, plaintiff and Mr. Alvarado casually dated. Id. at 3, ¶ 12. Plaintiff ended the relationship in March 2011. Id. Mr. Alvarado thereafter threatened to inform defendant about their relationship. Id. at 3, ¶ 13. Plaintiff instead informed defendant of the relationship, including Mr. Alvarado's threats towards her, but defendant did not address his behavior. Id. Mr. Alvarado subsequently began sexually harassing plaintiff at work. Id. at 3, ¶ 15. Plaintiff reported these incidents to defendant, but Mr. Alvarado's harassment continued for two years. Id. at 3, ¶ 16. In 2012, defendant required plaintiff and Mr. Alvarado to sign a statement stating that they would have no contact with one another while at work. Id. at 4, ¶ 18. Mr. Alvarardo's harassment continued, however, when he sent plaintiff an explicit photograph. Id. at 4, ¶ 19. Plaintiff reported the incident, but defendant did not correct Mr. Alvarado's behavior. Id. at 4, ¶ 20. On May 22, 2013, Mr. Alvarado approached plaintiff over 20 times, asking her to give him another chance and, in July 2013, he informed plaintiff that he had a gun and threatened her with bodily harm. Id. at 4, ¶¶ 21-22. Plaintiff alleges that Mr. Alvarado got into verbal confrontations with other employees and that defendant was aware of these incidents. Id. at 4, ¶ 23.

In July 2013, plaintiff sought and received a temporary restraining order ("TRO") against Mr. Alvarado in County Court for Adams County, Colorado. Id. at 5, ¶ 24. At the TRO hearing, plaintiff called co-worker Edwina Hurtado to testify, but, according to plaintiff, Ms. Hurtado lied under oath to protect Mr. Alvarado. Id. at 5, ¶ 26. Defendant terminated Mr. Alvarado's employment shortly after the TRO was issued. Id. at 5, ¶ 25.

Plaintiff alleges that, after the TRO hearing, Ms. Hurtado began to harass plaintiff by making rude comments and throwing plaintiff's work on the floor. Id. at 5, ¶ 27. Plaintiff reported Ms. Hurtado's behavior to defendant, but defendant did not address the issue. Id. at 5, ¶ 28. Ms. Hurtado began to exhibit aggressive behavior toward other employees, who noticed this behavior and informed defendant. Id. at 6, ¶ 36. On October 1, 2013, Ms. Hurtado and co-worker Virginia Deleon got into an argument, wherein Ms. Hurtado threatened to fight Ms. Deleon. Id. at 5, ¶ 30. Later that day, plaintiff was standing in the break room with Ms. Deleon when Ms. Hurtado began yelling. Id. at 5, ¶ 29. Plaintiff responded and Ms. Hurtado punched her in the face and pulled her hair. Id. at 6, ¶ 31. Co-workers were able to separate the two women, but plaintiff suffered a bloody nose and bruising, and had pieces of her hair ripped out. Id. at 6, ¶¶ 32-33. Police responded and issued Ms. Hurtado a summons and complaint for assault. Id. at 6, ¶¶ 34-35. Defendant terminated Ms. Hurtado's employment. Id. at 6, ¶ 35. Defendant terminated plaintiff two days later, claiming that plaintiff violated the company's workplace violence policy. Id. at 6, ¶ 37.

On October 1, 2014, plaintiff filed this case in the District Court for Adams County, Colorado against defendant, Mr. Alvarado, and Ms. Hurtado. Docket No. 1-1. On November 19, 2014, plaintiff removed the case to this Court. Docket No. 1. Plaintiff's amended complaint asserts state law claims against defendant for negligent supervision and negligent retention and federal law claims for sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1942. Docket No. 6 at 8-10. Plaintiff asserts state law claims for intentional infliction of emotional distress and invasion of privacy against Mr. Alvarado and a claim for battery against Ms. Hurtado. Id. at 6-7. On December 8, 2014, defendant filed the present motion, seeking the dismissal of plaintiff's negligent supervision and negligent retention claims. Docket No. 20.

II. STANDARD OF REVIEW

Defendant's motion implicates both Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6)

. Dismissal pursuant to Rule 12(b)(1) is appropriate if the Court lacks subject matter jurisdiction over certain claims. Rule 12(b)(1) challenges are generally presented in one of two forms: "[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests." Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell , 363 F.3d 1072, 1074 (10th Cir.2004) (quoting Maestas v. Lujan , 351 F.3d 1001, 1013 (10th Cir.2003) ). When resolving a facial attack on the allegations of subject matter jurisdiction, the Court "must accept the allegations in the complaint as true." Holt v. United States , 46 F.3d 1000, 1002 (10th Cir.1995). To the extent the defendant attacks the factual basis for subject matter jurisdiction, the Court "may not presume the truthfulness of the factual allegations in the complaint, but may consider evidence to resolve disputed jurisdictional facts." SK Finance SA v. La Plata Cnty ., 126 F.3d 1272, 1275 (10th Cir.1997). "Reference to evidence outside the pleadings does not convert the motion to dismiss into a motion for summary judgment in such circumstances." Id . Ultimately, and in either case, plaintiff has "[t]he burden of establishing subject matter jurisdiction" because it is "the party asserting jurisdiction."

Port City Props. v. Union Pac. R.R. Co. , 518 F.3d 1186, 1189 (10th Cir.2008)

.

The Court's function on a Rule 12(b)(6)

motion for failure to state a claim upon which relief may be granted is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim. FED. R. CIV. P. 12(b)(6) ; Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1201 (10th Cir.2003) (citations omitted). In doing so, the Court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Alvarado v. KOB–TV, LLC , 493 F.3d 1210, 1215 (10th Cir.2007) (quotation marks and citation omitted). At the same time, however, a court need not accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc ., 291 F.3d 1227, 1232 (10th Cir.2002).

Generally, "[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the claim is and the grounds upon which it rests.’ " Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)

(per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The "plausibility" standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible. Bryson v. Gonzales , 534 F.3d 1282, 1286 (10th Cir.2008). However, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and alteration marks omitted). Thus, even though modern rules of pleading are somewhat forgiving, "a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Bryson , 534 F.3d at 1286 (quotation marks and citation omitted).

III. ANALYSIS
A. Negligent Supervision Claim Based Upon Mr. Alvarado's Conduct
1. Preemption

Defendant argues that the portion of plaintiff's negligent supervision claim arising from Mr. Alvarado's conduct is preempted by the Colorado Anti-Discrimination Act ("CADA"), Colo. Rev. Stat. §§ 24-34-301, et seq.

Docket No. 20 at 4. The Colorado Supreme Court has held that, in determining whether a Colorado statutory right of action supplants a common law right, " statutes in derogation of the common law must be strictly construed, so that if the legislature wishes to abrogate rights that would otherwise be available under the common law, it must manifest its intent either expressly or by clear implication.’ " Brooke v. Restaurant Servs., Inc. , 906 P.2d 66, 68 (Colo.1995) (quoting Van Waters & Rogers, Inc. v. Keelan , 840 P.2d 1070, 1076 (Colo.1992) ). CADA provides that it shall constitute discrimination

[f]or an employer to refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry; but, with regard to a disability, it is not a discriminatory or an unfair employment practice for an employer to act as provided in this paragraph (a) if there is no reasonable accommodation that the employer can make with
...

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