Ayon v. Kent Denver School et al

Filing 39

ORDER Defendants Motions to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) ECF No. 12 is GRANTED; As to the Plaintiffs Claims which are dismissed without prejudice, leave is granted to Plaintiff to file an Amended Complaint on or before May 17, 2013, by Judge William J. Martinez on 4/26/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-2546-WJM-CBS
TRACI AYON,
Plaintiff,
v.
KENT DENVER SCHOOL, and
JERRY WALKER,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION
TO DISMISS WITHOUT PREJUDICE

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.)
I. STANDARD OF REVIEW
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 function

on 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 to
2

defendants of the actual grounds of the claim against them.” Twombly, 550 U.S. at 582.
II. BACKGROUND
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 custodial

1

The Court encourages compromise, and has said as much in recent matters. See
Otter Products, LLC v. Treefrog Developments, Inc., 2013 WL 490964, *2-*3 (D. Colo. 2013)
(“Compromise between the parties is always encouraged. Compromise allows the parties to
focus on those points that count, allowing the merits of the case to be better assessed.”)

3

care 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 Director
4

of 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.)

2

The Court notes that Plaintiff does not allege specific dates throughout the Amended
Complaint. For, example, when Plaintiff reported the lack of supervision of children. Should
Plaintiff re-file an amended complaint, she would be well advised to include specific dates of
when events occurred. While Iqbal and Twombly cases (and their progeny) have not expressly
stated that dates be pled in a complaint as a general rule, the provision of such dates are not
inconsistent with those cases and provides greater clarity for Defendants (and the Court).

5

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.)
III. ANALYSIS
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

6

‘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 with the intent of causing the plaintiff severe
emotional distress, and (3) causing the plaintiff severe emotional distress.” Green v.
QWest Services Corp., 155 P.3d 383, 385 (Colo. App. 2006). Liability for outrageous
conduct lies only when the plaintiff can prove conduct “so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.” Coors Brewing
Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999).
Plaintiff contends that the IIED claim is sufficiently pled because (1) Defendant
Walker scolded Plaintiff for “reporting” to CDHHS the fact that the children were being
left unattended, (2) that Plaintiff’s employment was eventually terminated in “retaliation”
for making reports to CDHHS, and (3) that because of the termination, Defendants
“circumstantially caused . . . severe emotional distress.” (ECF No. 11 ¶¶ 84-85.)
Notwithstanding the facts as pled, the Court finds that they do not rise to the level
that is required to satisfy the IIED claim because Colorado case law has erected an
7

extremely high bar that a plaintiff must satisfy in order to have such a claim put before a
jury. Factual allegations must reflect circumstances that are utterly intolerable in a civil
society; they must be extreme in kind and degree. See Reigel v. SavaSeniorCare
L.L.C., --- P.3d ---, 2011 WL 6091709, at *12 (Colo. App. Dec. 8, 2011) (stating that “the
level of outrageousness required to constitute [the] tort of extreme and outrageous
conduct is extremely high . . . mere insults, indignities . . . and threats are
insufficient.”) Specifically, and while Defendants' conduct—if found by the jury in
conformity with the allegations asserted by Plaintiff in the IIED claim—may be
actionable with respect to Plaintiff’s employment claims generally, it does rise to the
level which permits a jury to find that it is “utterly intolerable in a civilized community.”
Coors Brewing Co. 978 P.2d at 666.
Additionally, the case law is clear in that an IIED claim must be distinct from a
plaintiff’s employment claim. See Visor v. Spring/United Mgmt. Co., 965 F. Supp. 31,
33 (D. Colo. 1997). The distinction is maintained to ensure that the IIED claim is
reserved for those truly exceptional cases. Colorado law thus requires ascertainable
misconduct to support an IIED claim, and is not cognizable if the allegations (forming
the basis of the claim) are the same as those forming the basis of other employment
actions. Id. That is precisely what has been pled here.3 And unless Plaintiff takes

3

Note, the Court acknowledges Plaintiff’s citation of Madison Services Company, LLC
v. Gordon, 2012 WL 5363323 (D. Colo. Sept. 2, 2010). While the case is analogous in some
respects, the case does seem at odds with other cases in the District of Colorado Visor v.
Spring/United Mgmt. Co., 965 F. Supp. 31, 33 (D. Colo. 1997) and with Colorado Supreme
Court authority making the bar for IIED claims and “extremely high” one. Coors Brewing Co. v.
Floyd, 978 P.2d 663, 666 (Colo. 1999). For those reasons, this Court declines Plaintiff’s
invitation to adopt the reasoning in Madison Services to the case at hand.

8

more concrete steps to plead facts so to satisfy the high bar of the purported IIED
claim—being separate and distinct from the employment claim(s)—the Court will be left
with no option but to dismiss the claim in any future amended complaint with prejudice.
Gard v. Teletronics Pacing Sys., Inc., 859 F. Supp. 1349, 1354 (D.Colo.1994) (stating
that an IIED claim is not meant to be an “incantation to augment damages” in an
employment discrimination or any other state or federal tort action).4
For these reasons, the IIED claim has not been sufficiently pled. It facially fails to
meet the high standards set by Colorado law. As to this claim, therefore, Defendants'
Motion is granted and the claim is dismissed as to (1) Defendant Kent Denver, and (2)
Defendant Walker, without prejudice and with leave to amend.
B.

Intentional Interference with Contractual Obligations (Against Defendant
Walker and in the Alternative to Plaintiff's Fifth, Sixth, and Seventh Claims
for Relief Against Defendant Kent Denver)
Plaintiff’s next claim for relief contends that Defendant Walker intentionally

interfered with her employment contract with Defendant Kent Denver. (ECF No. 11 ¶¶
77-82.) Before addressing the merits of the Rule 12(b)(6) Motion on this claim, the
Court observes as a threshold issue that pleading a claim for intentional interference is
not without difficulty—ever more so in the principal-agent context. Such problems are
only heightened in the present employment context where Plaintiff has entered into a
contract with Kent Denver—and argues that an agent of Kent Denver (namely Mr.

4

As Defendant rightly points out, the court decides in the first instance whether the facts
alleged rise to the level of an outrageous conduct claim. Rugg v. McCarthy, 476 P. 2d 753, 756
(Colo. 1970). If allegations fail to meet the standard of atrocious and intolerable behavior, the
matter cannot be submitted to a jury. Widdifield v. Robertshaw Controls Co., 671 P. 2d 989,
991 (Colo. App. 1983).

9

Walker) has intentionally interfered with her contract. On its face, and in the postTwombly environment, Plaintiff’s task is even more burdensome where the pleading
must be more than “mere labels and conclusions, and a formulaic recitation of the
elements of a cause of action.” Twombly, 550 U.S. at 555. See also Kansas Penn
Gaming, 656 F.3d at 1212 (stating that a Plaintiff must offer “specific factual allegations
to support each claim.”)5
Turning to the key element of the contractual interference claim, a plaintiff must,
at minimum, plead sufficient facts to show that “the agent was motivated out of personal
animus towards one or both of the contracting parties.” See W.O. Brisben Co. v.
Krystkowiak, 66 P. 3d 133 at 137 (Colo. App. 2002), aff’d, 90 P.3d 859 (Colo. 2004).
Courts in Colorado have held that attaching personal liability to an agent occurs only in
the “rare circumstances” where the agent was “motivated solely by a desire to breach or
interfere with the [plaintiff’s] contract.” Powell Products, Inc. v. Marks, 948 F. Supp.
1469, 1478 (Colo. 1996). See also Ziegler v. Inabata of America, Inc., 316 F. Supp. 2d
908, 915 (D. Colo. 2004) (holding “[u]nder Colorado law, an officer or director of a
corporation acting within the scope of his or her official capacity will not be subject to
personal liability for inducing the corporation’s breach of its contract”); DeLong v.
Soufiane , 2010 WL 234781 (E.D.N.Y. 2010).6
5

As noted by Defendants, Plaintiff's allegations have not been “directly examined by
Colorado courts under Rule 12(b)(6).” (ECF No. 12 at 9.) The fact that Plaintiff does not dispute
this only confirms this view.
6

See also Burrell v. United States of America, 2001 WL 34047380 at *3 (E.D.Va. 2001)
(granting motion to dismiss claims alleging that the defendant (Sykes) acted outside scope of
his dispatcher duties, holding because Sykes was acting in a supervisory capacity and there is
no evidence of an independent, external and personal motive, the non-conclusory allegations
demonstrate that plaintiff cannot meet his burden to establish that Sykes was acting in other

10

In light of the above authorities, Defendant contents that Plaintiff’s intentional
interference claim does not comport with Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The Court agrees. The Amended Complaint’s deficiencies are three-fold.
First, the claim fails to expressly plead that Defendant Walker was motivated by
the desire to do harm to Plaintiff’s contract with Kent Denver child care center. In
particular, Plaintiff does not plead specific facts that Defendant Walker acted with
independent, external and personal motive to do harm to her employment contract. See
Burrell v. United States of America, 2001 WL 34047380 at *3 (E.D.Va. 2001). While
Plaintiff does state that it “appeared” that Mrs. Ayon’s reports were taken as a “personal
affront to Defendant Walker”, the claim does not plead specific factual allegations to
support the claim. (ECF No. 11 at 12.) That is, nothing is pled as to ‘how’, ‘what’ or
‘when’ Defendant Walker was personally affronted, nor does the pleading indicate the
timing (dates) of when Plaintiff made the reports that elicited a purported retaliatory
response by Defendant Walker. As such, more factual input is required—particularly for
a claim of personal animus in the post-Twombly environment. See Kansas Penn
Gaming, 656 F.3d at 1212.
Second, Plaintiff’s claim is deficient because it is not clear from the pleadings
whether she is alleging that Defendant Walker was acting ‘inside’ or ‘outside’ the scope
of his position when he terminated Plaintiff from her employment with Kent Denver.
Instead, Plaintiff’s pleading is convoluted. It states in the first instance that Walker
“was” acting out of “personal animus” in the third line of paragraph 81 of the Amended

than his official capacity.)

11

Complaint—and then, at the sixth line, Plaintiff states that Walker “may” have been
motivated by “person animus”. (ECF No. 11 ¶ 81.) If Defendant Walker was acting
with personal animus, outside the scope of his employment, then Plaintiff should plead
as much. She shouldn’t equivocate. Indeed, the purpose of the plausibility requirement
is to solve this very problem by heightening the applicable pleading standards—i.e., to
“provide fair notice to defendants of the actual grounds of the claim against them.”
Twombly, 550 U.S. at 582. See also Pennsylvania Employees Benefit Trust Fund v.
Astrazeneca Pharmaceuticals LP, 2009 WL 2231686 at *3 (M.D. Fla. 2009) (stating that
equivocal allegations (“and/or”) suggested that the plaintiff was unsure whether it had a
claim against the defendant, and was found wanting under the Iqbal standard).
In sum, Plaintiff’s claim for contractual interference does not meet the bar
imposed by Iqbal and Twomby. Its contentions are equivocal, and it lacks the requisite
specificity to provide adequate notice to Defendant Walker. Accordingly, the Court
dismisses this contractual interference claim without prejudice, and with leave to
amend.
C.

Wrongful Discharge
Plaintiff's next claim asserts the common law tort of wrongful discharge. (ECF

No. 11 ¶ 46.) While Plaintiff need not prove her claim at this juncture, the following
elements for wrongful discharge are pertinent because they provide the framework for
the Rule 12(b)(6) analysis.
Colorado law recognizes a public policy exception to an employer's right to fire
an at-will employee. See Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo.1999).

12

While generally addressed under circumstances where an “employer directs an
employee to perform an illegal act as part of his or her work-related duties, the claim
may also encompass a situation where an employee is discharged for exercising a
specific statutory right or performing a specific statutory duty.” Boeser v. Sharp, 2006
WL 898126, *5 (D.Colo. March 31, 2006) (citing Martin Marietta Corp. v. Lorenz, 823
P.2d 100, 109 (Colo.1992); see also Crawford Rehabilitation Servs., Inc. v. Weissman,
938 P.2d 540, 553 (Colo. 1997) (To state a public policy claim, “the employee must
prove that ‘the action directed by the employer would violate a specific statute relating to
the public health, safety, or welfare, or would undermine a clearly expressed public
policy relating to the employee's rights as a worker ....‘ ”) (emphasis added)(quoting
Rocky Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 524 (1996)).
For this type of claim, the cases set forth three elements: (1) the plaintiff was
employed by defendant; (2) the defendant discharged plaintiff; and (3) the defendant
discharged the plaintiff because the plaintiff exercised a specific statutory right or
performed a specific statutory duty. Boeser 2006 WL 898126, at *5.
Notably, here, however, the dispute is not whether Plaintiff has sufficiently pled
the above elements with respect to Defendant Kent Denver; rather, the dispute is
whether Plaintiff has pled sufficient facts so to make Defendant Walker personally liable
for the tort.7 With respect to Defendant Walker, the Court finds that Plaintiff has not.8

7

Indeed the briefing by Defendants directed their primary attack at whether (2) Mr.
Walker could in fact be found personally liable, and (2) whether sufficient facts were alleged in
the Complaint to even to attach liability. See, for e.g., ECF No. 12 at 3-5.
8

In fact, Defendants’ brief concedes they only challenge “Plaintiff’s individual claims
against Mr. Walker for Wrongful Discharge.” (ECF No. 12 at 2.)

13

First, the Court observes that there is little case law on the issue of whether a
wrongful discharge claim can be brought personally against an agent of a defendant
employer. Both parties cite law outside the District of Colorado.
Plaintiff contends that courts from several jurisdictions other than Colorado allow
employees to be held individually liable for a wrongful discharge committed within the
scope of their employment. See, Higgins v. Assmann Elecs., Inc., 173 P.3d 453, 458
(Ariz. App. 2007); Ballinger v. Del. River Port Auth., 800 A.2d 97, 110-11 (N.J. 2002);
Harless v. First Nat'l Bank, 289 S.E.2d 692, 698-99 (W. Va. 1982).
Plaintiff also cites DeCarlo v. Bonus Stores, Inc., 512 F.3d 173, 177 (5th
Cir.2007). But on closer inspection of that case, its ultimate holding is inapposite to the
point that Plaintiff was trying to prove. In fact, the case undercuts Plaintiff’s claim
because the Fifth Circuit certified the issue of personal liability to the Mississippi
Supreme Court, which held that an agent could not be held personally liable for
wrongful discharge. DeCarlo v. Bonus Stores, Inc., 989 So.2d 351, 359 (Miss. 2008)
("the laws of Mississippi do not allow for individual liability for the tort of wrongful
discharge").
Defendant cites cases that support the proposition that the supervisor must be
found to have acted outside the scope of employment before personal liability can
attach. See Saavedra v. Lowe’s Home Centers, Inc., 748 F. Supp. 2d 1273, 1290–91
(D. N.M. 2010) (dismissing wrongful discharge claim against manager under Rule
12(b)(6); Tesh v. United States Postal Service, 215 F. Supp. 2d 1220, 1229–30 (N.D.
Okla. 2002) (only the employer is liable for wrongful discharge); Rebarchek v. Farmers
Co-op. Elevator, 35 P.3d 892, 902–904 (Kan. 2001) (same).
14

In addition to the above cases, Defendants also place much reliance on Leonard
v. McMorris, 63 P.3d 323 (Colo. 2003). While the case is not a wrongful discharge
claim per se, it is a case that provides guidance for present purposes involving personal
liability of corporate officers of a defendant employer, NationsWay, who filed for
bankruptcy protection under Chapter 11 (11 U.S.C §§ 1101 et seq. (2000)). Upon the
filing of the petition, NationsWay terminated several employees and did not pay wages
because the Bankruptcy Code’s automatic stay provision prevented the corporation
from making the payments. Leonard, 63 P.3d at 325. The plaintiff claimed the officers
of NationsWay were personally liable for the unpaid wages. Although the Colorado
Supreme Court held the corporation's officers were not individually liable, it did,
relevantly, enunciate the following principle:
A corporate officer is not the employer responsible for creating the
contractual employment relationship and is not personally responsible for
a breach of that relationship, unless he or she created the relationship
without disclosing the responsible principal corporation to which he
answered as an agent. Instead, an officer acts for the corporation when
he or she extends an offer of employment or terminates the employment
relationship.
Id. at 330 (emphasis added).
On balance, and upon review of the above cases, the Court is unpersuaded by
those authorities cited by Plaintiff—particularly in light of what the Colorado Supreme
stated in Leonard (albeit a Wage Claim case). Indeed—and in the wrongful discharge
context—the Court adopts the principle in Leonard that an agent is not personally
responsible for a breach of an employment relationship, unless the agent created the
relationship without first disclosing the responsible principal corporation to which he
answered as an agent. Id. Applying that principle here, the Court finds that because
15

Plaintiff has not pled that Defendant Walker created an employment relationship
between Mrs. Ayon and Kent Denver, without first disclosing the employment
relationship to the Kent Denver, Plaintiff’s claim must be dismissed. If the factual
allegations exist to support this claim, they should be pled in a further amended
complaint. If not, the parties (and the Court should concentrate on those claims are in
genuine dispute.)
Second, Plaintiff’s pleading is deficient because a claim for wrongful termination
is predicated upon the existence of an employment relationship. Bonidy, 186 P. 3d at
83. Specifically, an employment relationship must exist before an employee can be
wrongfully terminated so to establish a prima facie case of wrongful discharge. Id.
Here, and between the years 2009-2012, Plaintiff’s contract was with Kent School.
Plaintiff pleads that she was wrongfully terminated from same. (ECF No. 11 ¶ 4) (“Mrs.
Ayon entered into an employment contract to provide daycare services at Kent Denver’s
childcare center in fall of 2009.”) To then argue that Defendant Walker personally
terminated her employment implies that Plaintiff also had a personal employment
relationship with Mr. Walker between the years 2009-2012. This is not what is pled in
the Amended Complaint. On Plaintiff’s own theory of the case, she can not have it both
ways. Either Plaintiff had an employment contract with Defendant Kent Denver, which
was wrongfully terminated by Kent Denver; or Plaintiff had a contract with Mr. Walker,
which was wrongfully terminated by Mr. Walker. At present the Amended Complaint
does not plead a separate claim for relief in the alternative as against Defendant
Walker; rather both Defendants are bundled together in the same claim making it
deficient under Rule 12(b)(6) for the reasons stated above. As such, should Plaintiff
16

wish to proceed against Defendant Walker for personal liability, Plaintiff should plead a
separate alternative claim.9
Accordingly, the abovementioned deficiencies must be amended before the claim
against Defendant Walker will pass Rule 12(b)(6) scrutiny. And while Plaintiff’s claim is
dismissed without prejudice on this occasion, there will be no second bite of the apple if
the deficiencies are not corrected on the next filing should Plaintiff see to do so.
IV. CONCLUSION
For the reasons set forth above, It is hereby ORDERED that:
1.

Defendants’ Motions to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (ECF
No. 12) is GRANTED;

2.

As to the Plaintiff’s Claims which are dismissed without prejudice, leave is
granted to Plaintiff to file an Amended Complaint on or before May 17,
2013.

Dated this 26th day of April, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

9

As presently pled, the wrongful discharge claim against Defendant Walker alleges that
he was acting inside the scope of his employment. But this poses problems for the Amended
Complaint as a whole—i.e. that Defendant Walker interfered with Plaintiff's employment contract
and was acting "outside the scope" of his employment. (ECF No. 11 ¶ 81.) Because Plaintiff
has made no attempt to reconcile these inconsistencies—not even with cross-referencing the
pleadings in the alternative—the claim must be dismissed as not placing Defendant Walker on
notice of the grounds leveled against him.

17