Silver v. Primero Reorganized School Dist. No. 2

• Decision Date: 22 August 2007
• Docket Number: Civil Action No. 06-cv-02088-MSK-BNB.
• Citation: 619 F.Supp.2d 1074
• Parties: Roberta SILVER, Plaintiff, v. PRIMERO REORGANIZED SCHOOL DISTRICT NO. 2, Michael Sparaco, Daniel Nuschy, Jr., and Heidi Dasko, Defendants.
• Court: U.S. District Court — District of Colorado

619 F.Supp.2d 1074

Roberta SILVER, Plaintiff, v. PRIMERO REORGANIZED SCHOOL DISTRICT NO. 2, Michael Sparaco, Daniel Nuschy, Jr., and Heidi Dasko, Defendants.

Civil Action No. 06-cv-02088-MSK-BNB.

United States District Court, D. Colorado.

August 22, 2007.

Nicholas Gradisar, Douglas Anthony Gradisar, Gradisar, Trechter, Ripperger, Roth & Croshal, Pueblo, CO, for Plaintiff.

Michael W. Schreiner, Caplan & Earnest, L.L.C., Boulder, CO, Karen R. Wells, Nathan, Bremer, Dumm & Myers, PC, Matt Ratterman, Semple, Miller, Mooney

& Farrington, P.C., Denver, CO, for Defendants.

OPINION AND ORDER GRANTING, IN PART, MOTIONS TO DISMISS

MARCIA S. KRIEGER, District Judge.

THIS MATTER comes before the Court pursuant to Defendant Sparaco's Motion to Dismiss¹ (# 27), the Plaintiff's response (#35), and Defendant Sparaco's reply (# 39); and Defendants Dasko's Motion to Dismiss (# 29), the Plaintiff's response (# 36), and Defendant Dasko's (# 43).²

FACTS

According to the Amended Complaint (# 22), the Plaintiff was employed as a Pre-School Teacher's Assistant in a school operated by Primero Reorganized School District No. 2's ("the District"). In 2004, the Plaintiff confided in Defendant Dasko, a school Counselor, regarding personal matters. Although the Plaintiff believes she shared the information with Defendant Dasko in confidence, Defendant Dasko thereafter conveyed some or all of that personal information to Defendant Nuschy, the school's Principal. Defendant Nuschy later entered into a wager with another District employee as to whether or not Defendant Nuschy would have sex with the Plaintiff before the end of the school year. Using the information gleaned from Defendant Dasko, Defendant Nuschy "prey[ed] upon the emotions" of the Plaintiff, and the two began a sexual relationship.

At first, the Plaintiff enjoyed the benefits of the relationship, which included positive attention from Defendant Sparaco, and an indication that, contrary to earlier representations, Defendant Nuschy might be able to arrange for the Plaintiff to teach her own pre-school class. However, when the Plaintiff learned in March 2005 of Defendant Nuschy's wager, she ended the relationship. Defendant Nuschy did not willingly surrender the relationship, and made several unwelcome phone calls, emails, and visits to the Plaintiff's house. The Plaintiff ultimately obtained a Restraining Order against Defendant Nuschy. Thereafter, the Plaintiff observed that Defendant Sparaco's treatment of her deteriorated, and Defendant Sparaco advised the Plaintiff that she would no longer enjoy the same unfettered presence at the school that she enjoyed during her relationship with Defendant Nuschy; instead, Defendant Sparaco instructed the Plaintiff that she was limited to being in her immediate work area, the gym, the cafeteria, and, if necessary, the office. In May 2005, the Plaintiff was advised that her annual employment with the District would not be renewed.

The Plaintiff alleges five causes of action: (i) wrongful discharge in violation of public policy against the District; (ii) hostile environment sexual harassment under Title VII against the District; (iii) quid pro quo sexual harassment under Title VII against the District; (iv) invasion of privacy against Defendant Dasko, arising from her disclosure of the Plaintiff's confidential communications; and (v) outrageous conduct against Defendants Sparaco, Nuschy, and Dasko.³

Defendant Sparaco moves to dismiss (# 27) the sole claim against him, for outrageous conduct, arguing that the allegations in the Amended Complaint fail to identify conduct that rises to an actionable level. Defendants Dasko moves to dismiss (# 29) the invasion of privacy claim against her, alleging that the Plaintiff did not adequately allege that the Plaintiff disclosed facts that were "private in nature," that Defendant Dasko's disclosure was made to the public; that the disclosure would be highly offensive to a reasonable person, that the material disclosed was not of public concern, or that Defendant Dasko disclosed with information with willful or wanton intent. In addition, Defendant Dasko also moves to dismiss the outrageous conduct claim for failure to identify sufficiently outrageous conduct.

ANALYSIS

A. Standard of review

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-plead allegations in the Complaint as true and view those allegations in the light most favorable to the nonmoving party. Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1149 (10th Cir.2001), quoting Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). The Complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Benefield v. McDowall, 241 F.3d 1267, 1270 (10th Cir.2001); GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997); but see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (factual basis for the allegations in the complaint must be concrete enough to rise above a speculative level, and conclusory assertions are insufficient to satisfy the plaintiff's burden of pleading adequate facts to support each claim). The Court must limit its review to the four corners of the complaint, plus exhibits attached to the complaint or material referenced in the complaint and upon which the plaintiff's claims arise, so long as the authenticity of such material is not disputed. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir.2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.2002).

B. Outrageous conduct

Both Defendants Sparaco and Dasko challenge the sufficiency of the Plaintiff's allegations supporting the fifth cause of action, sounding in outrageous conduct. Specifically, the Amended Complaint alleges that Defendant Dasko engaged in outrageous conduct by "publicizing private facts about the Plaintiff's personal life and invading Plaintiff's privacy—which led to a `bet' on who would sleep with Plaintiff." As to Defendant Sparaco, the Plaintiff alleges that he engaged in outrageous conduct by "[changing his] attitude towards Plaintiff . . . depending on whether Plaintiff was having sex with Defendant Nuschy[] or not"; by "placing limitations on where Plaintiffs presence at school was welcome" as a result of her terminating the relationship with Defendant Nuschy; and by terminating the Plaintiff's employment in response to her ending her relationship with Defendant Nuschy.

Under Colorado law, the elements of the tort of outrageous conduct are: (i) that the defendant engaged in extreme and outrageous conduct; (ii) that it did so recklessly, or with the intent to cause the plaintiff severe emotional distress; and (iii) that the conduct caused the plaintiff to suffer such distress. Riske v. King Soopers, 366 F.3d 1085, 1089 (10th Cir.2004), citing Archer v. Farmer Bros. Co., 70 P.3d 495, 499 (Colo.App.2002). To satisfy the first element, the plaintiff must allege conduct that "goes beyond all possible bounds of decency and is regarded as atrocious and utterly intolerable in a civilized community." Id., citing Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 756 (1970) and Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo.1988). The tort is intended to reach "a very narrow" type of conduct. Green v. Qwest Services Corp., 155 P.3d 383, 386-87 (Colo.App. 2006) (collecting cases). The type of conduct actionable under this claim is that which "the recitation of facts to an average member of the community would . . . lead him to exclaim `Outrageous!'" Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 756 (1970), citing Restatement (Second) Torts, § 46, comment d.

The outcome of several cases involving similar facts is helpful in assessing the sufficiency of the Plaintiffs allegations. In Riske, the 10th Circuit held that allegations that an employee had been subjected to nearly three years of unwanted gifts and disturbing notes from an anonymous suitor (later shown to be her manager), coupled with her manager "stalk[ing] her and follow[ing] her around the store" for several months, "presents a close question," but "comes so close to the bounds of decency that reasonable people could disagree about whether it constitutes actionable conduct." 366 F.3d at 1089. Among the factors that the court found important were the length of time over which the conduct occurred, and the managerial relationship involved. Id.

In Donohue v. Hoey, 109 Fed.Appx. 340, 369-70 (10th Cir.2004) (unpublished),⁴ the defendant was a police officer to whom the family of a crime victim had related in confidence "several sensitive details" about their lives, in order to advance the criminal investigation. When the family members later became vocal critics of the police, the officer disclosed the family's confidences to a reporter. Id. at 350-51. Without engaging in extended discussion, the 10th Circuit affirmed a grant of summary judgment on an outrageous conduct claim stemming from this allegation, merely observing that "[w]e cannot conclude that the conversation with [the reporter], though probably mean-spirited and unkind, rose to the level of outrageous conduct contemplated by this tort." Id. at 370.

In Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo.1999), the Colorado Supreme Court found that an employee's claim that he was fired by his employer as a scapegoat to conceal illegal conduct by the employer did not allege sufficiently outrageous conduct to state a claim.

This Court finds that the Plaintiff's allegations against both Defendants Dasko and Sparaco fail to assert sufficiently outrageous conduct. Turning first to Defendant Dasko, the Plaintiff alleges a single instance⁵ of conduct in which ...