Ayon v. Kent Denver Sch.

Decision Date26 April 2013
Docket NumberCivil Action No. 12-cv-2546-WJM-CBS
PartiesTRACI AYON, Plaintiff, v. KENT DENVER SCHOOL, and JERRY WALKER, Defendants.
CourtU.S. District Court — District of Colorado

Judge William J. Martínez


Plaintiff Traci Ayon ("Plaintiff" or "Mrs. Ayon") brings claims for unlawful termination against Defendant Kent Denver School and Defendant Jerry Walker (jointly, "Defendants"). Before the Court is Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Court Rules of Civil Procedure ("Motion"). (ECF No. 12.) Plaintiff has filed a Response (ECF No. 14), and Defendants have filed a Reply. (ECF No. 19). The Motion is ripe for adjudication.

For the reasons set forth below, the Motion is granted without prejudice. The Court also grants Plaintiff leave to amend its First Amended Complaint. (ECF No. 11.)


The purpose of a Rule 12(b)(6) motion is to test "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). "The court's functionon a Rule 12(b)(6) motion 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 for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts . . . to provide 'plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility in this context "must refer to the scope of the allegations in a complaint—i.e. if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible." Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008).

As the Tenth Circuit recently pointed out in Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th Cir. 2011), there are two working principles that underlie the Twombly holding requiring that a claim be plausible on its face. First, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. at 1214 (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)) Second, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. (quoting Iqbal, 129 S. Ct. at 1950). In other words, a plaintiff must offer sufficient factual allegations to "raise a right to relief above the speculative level." Id. (quoting Twombly, 550 U.S. at 555).

Accordingly, the plausibility requirement serves not only to "weed out claims that do not have a reasonable prospect of success, but to also provide fair notice todefendants of the actual grounds of the claim against them." Twombly, 550 U.S. at 582.

A. Procedural Background

On September 26, 2012, Plaintiff filed her Complaint, inter alia, for unpaid wages and wrongful discharge. (ECF No. 3). Defendants thereafter filed a Motion to Dismiss. (ECF No. 6.) That motion was denied by this Court for failure to comply with WJM Revised Practice Standard III.D.1, which requires conferral between the parties preceding the filing of a Rule 12(b)(6) motion. (ECF No. 6.) On October 22, 2012, Plaintiff filed an Amended Compliant after the parties had resolved some deficiencies identified in the previous pleadings.1 (ECF No. 12 at 1.)

Notwithstanding the parties' efforts to stipulate, three claims still remain subject to the instant Motion. Those claims are addressed below.

B. Factual Background

The following factual allegations are drawn primarily from Plaintiff's Amended Complaint, all of which are found within the four corners of same:

On or about August 2009, Plaintiff entered into an employment contract to provide daycare services at the Kent Denver School's childcare center. (ECF No. 11 ¶ 2.) Plaintiff worked at Kent Denver from 2009-2012. Her employment was terminated at the end of the 2011-2012 school year. (Id.)

Plaintiff's primary duties at the Kent Denver School were to provide custodialcare and provide for the basic physical needs of babies and toddlers at the childcare center. (Id.) The employee handbook—provided to Plaintiff, and incorporated into her employment contract—states which of Kent Denver's employees were covered by the Fair Labor Standards Act ("FLSA") and which employees were exempt from FLSA. (Id. ¶ 3.) The employee handbook, inter alia, requires that Kent Denver's directors, officers, and employees comply with all applicable laws and regulations and to report violations of the employee handbook. To protect employees who report violations of the handbook, the handbook contains a "Whistleblower Policy" that bars retaliation for reporting. (Id.)

Defendant Jerry Walker is the Associate Head of School at Kent Denver, and he was the person who hired Plaintiff Ayon. (Id. 8) He also negotiated the terms of Plaintiff's contract, drafted her contract, and eventually terminated Plaintiff's employment with Kent Denver child care center. (Id.)

During her employment at Kent Denver, Plaintiff alleges that she noticed the childcare center was leaving the children of about 1.5 to 3 years of age unattended. (Id. at 4.) Under Colorado law, it is illegal to leave children between the ages of 1.5 and 3 years old unattended in a childcare center licensed by the state. (Id. ¶¶ 17-19) Plaintiff claims she reported the lack of supervision to her supervisors repeatedly, but the children continued to be left unattended despite her reports. (Id.) Plaintiff made these reports to the Acting Director of the childcare center, the childcare center's permanent Director, the Associate Head of the upper school at Kent Denver, and Defendant Walker. (Id. ¶ 19).

After Plaintiff's many reports, she alleges that she was told by both the Directorof the childcare center and Defendant Walker to stop bringing up the issue, and that leaving children unattended in the toddler room was an acceptable practice in the childcare center. (Id.) Plaintiff claims that in addition she also faced a hostile work environment as a consequence of her reporting, which included the Director refusing to speak with Plaintiff on some occasions, the director losing her temper with Plaintiff on other occasions, and Defendant Walker scolding Plaintiff to stop reporting despite children still being left unattended. (Id.)

When the lack of supervision continued, Plaintiff reported the lack of supervision at childcare center to local and state authorities. (Id. ¶ 20-21) As a result of this reporting, the Colorado Department of Health and Human Services (the "CDHHS") told Plaintiff they would inspect Kent Denver's childcare center. (Id.) Within a week of the report, the CDHHS did an unannounced inspection of the childcare center at Kent Denver, found children left unattended in the toddler room, and cited Kent Denver for a violation. (Id. ¶ 22.)

Days after the inspection, Plaintiff was called into Defendant Walker's office.2 (Id. ¶ 23.) At this meeting, Defendant Walker informed Plaintiff that she was (1) terminated effective at the end of June, (2) would be placed on administrative leave until the school year ended, (3) was leaving on bad terms, (4) would not receive her July bonus, and (5) would not receive any recommendations. (Id.)

Plaintiff's employment was terminated in June 2012. (Id. ¶ 24.) Mrs. Ayon was not paid her July bonus. (Id.) Within 60 days of Mrs. Ayon's employment at Kent Denver being terminated, Mrs. Ayon, through her attorney, sent a letter to Kent Denver demanding unpaid wages and stating where the unpaid wages could be delivered. (Id.) To date, Defendant Kent Denver has not paid Plaintiff Ayon any money in response to this demand letter. (Id.)


Plaintiff specifically brings the following claims for relief: (1) Breach of the Fair Labor Standards Act (FLSA) 28 U.S.C. §§ 201 et Seq (Against Defendants Kent Denver and Walker); (2) Recovery of Colorado Overtime under C.R.S. § 8-6-118; C.C.R. § 7-1103-1 (Against Defendant Kent Denver); (3) Willful Withholding of Wages Pursuant to C.r.s. §§ 8-4-109, -110 (Against Defendant Kent Denver); (4) Wrongful Discharge in Violation of Public Policy (Against Defendants Kent Denver and Walker); (5) Breach of Contract (Against Defendant Kent Denver); (6) Breach of Implied Contract Based on Violation of Employer's Termination Policies or Procedures (Against Defendant Kent Denver and in the Alternative to Plaintiff's Fifth Claim for Relief for Breach of Contract); (7) Promissory Estoppel (Against Defendant Kent Denver and in the Alternative to Plaintiff's Fifth Claim for Relief for Breach of Contract); (8) Intentional Interference with Contractual Obligations (Against Defendant Walker and in the Alternative for Relief Against Defendant Kent Denver); (9) Intentional Infliction of Emotional Distress (Against Defendants Kent Denver and Defendant Walker).

With respect to the Defendants' Motion to Dismiss, and following the parties'meet and confer', only three claims remain subject to Rule 12(b)(6) scrutiny. They are addressed as follows.

A. Intentional Infliction of Emotional Distress (Against Defendants Kent Denver and Walker)

Plaintiff makes a claim against each of the Defendants for Intentional Infliction of Emotional Distress ("IIED"). Defendants contend that the claim does not comport with Rule 12(b)(6) of the Federal Rules of Civil Procedure because it does not sufficiently plead requisite facts to support the claim. The Court agrees.

The elements of an IIED claim include: "(1) the defendant engaged in extreme and outrageous conduct, (2) recklessly or...

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