Alarid v. MacLean Power, LLC et al
ORDER denying 20 Partial Motion to Dismiss. Entered by Judge Philip A. Brimmer on 09/16/15.(jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-03125-PAB-KMT
MACLEAN POWER, LLC d/b/a Foresight Products, a Delaware corporation,
EDWINA HURTADO, individually, and
JOSE ALVARADO, individually,
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.
Plaintiff Lorraine Alarid began working for defendant in 1998 as an assembly and
packaging worker. Docket No. 6 at 3, ¶ 10. In 2009, def endant hired Jose Alvarado.
Id. at 3, ¶ 11. In 2010 and 2011, plaintif f 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
All references to “defendant” are to MacLean Power, LLC d/b/a Foresight
Products unless otherwise indicated.
The following facts are taken from plaintiff’s amended complaint and are
presumed true for purposes of resolving the present motion.
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 th e 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 sum mons 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.
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)). W hen 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). T o 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). “Ref erence 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 (2007) (per curiam) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (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 (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).
A. Negligent Supervision Claim Based Upon Mr. Alvarado’s Conduct
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, “‘statues 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 regard to the disability, the
disability actually disqualifies the person from the job, and the disability has
a significant impact on the job. For purposes of this paragraph (a), “harass”
means to create a hostile work environment based upon an individual’s race,
national origin, sex, sexual orientation, disability, age, or religion.
Notwithstanding the provisions of this paragraph (a), harassment is not an
illegal act unless a complaint is filed with the appropriate authority at the
complainant’s workplace and such authority fails to initiate a reasonable
investigation of a complaint and take prompt remedial action if appropriate.
Colo. Rev. Stat. § 24-34-402(1)(a). In Brooke, the Colorado Supreme Court,
interpreting a prior version of CADA, concluded that the legislature did not intend for
CADA to provide the exclusive remedy for sex discrimination claims. 906 P.2d at 6870. However, CADA was amended in 1999 to expressly prohibit an employer from
harassing an employee based upon an individual’s sex. See Gatuma v. Encore Elec.,
Inc., No. 12-cv-01611-MSK-MEH, 2012 WL 5354932, at *4 (D. Colo. Oct. 30, 2012).
The Colorado Supreme Court does not appear to have revisited this issue since
its opinion in Brooke. Other courts considering CADA’s preemptive effect, albeit in the
context of wrongful discharge claims, have reached different results. Judge Wiley
Daniel has found Brooke dispositive in ruling that a wrongful discharge claim premised
on CADA was not preempted. Kennedy v. Colorado RS, LLC, 872 F. Supp. 2d 1146,
1150-51 (D. Colo. 2012) (collecting cases). Other courts, without relying on Brooke,
have reached the opposite conclusion. See Endahl v. Vinnell Corp., No. 04-cv-00426MSK-PAC, 2006 WL 57496, at *10 (D. Colo. Jan 10, 2006) (concluding that plaintiff’s
claim for wrongful discharge in violation of public policy was barred because CADA
provides employee with wrongful discharge remedy (citing Gamble v. Levitz Furniture
Co., 759 P.2d 761 (Colo. App. 1988)). In Gatuma, Judge Marcia Krieger questioned
whether the holding in Brooke was dispositive on the question of CADA preempting
common law wrongful discharge claims. See 2012 WL 5354932, at *3-*5. First, the
court noted that Brooke concerned the interaction between CADA and a tortious
interference with contract claim, which, unlike a wrongful discharge claim, can be
brought against a defendant other than an employer. Id. at *3. Second, the court noted
that Brooke was decided under an older version of the CADA, which did not explicitly
prohibit harassment. Id. at *4. Third, the court was critical of Brooke’s conclusion that
CADA did not provide a comprehensive scheme for addressing workplace sex
discrimination, concluding that “the only difference in the enforcement mechanism
between an employee suing on a tort-based wrongful discharge claim and an employee
asserting a statutory CADA claim, is the ability of the former to recover noneconomic
damages whereas the latter cannot.” Id. Ultimately, however, the court resolved
plaintiff’s wrongful discharge claim on other grounds without explicitly deciding whether
CADA preempted such a claim. Id. at *5.
Defendant does not argue that CADA explicitly preempts plaintiff’s negligent
supervision claim. Rather, defendant argues, without much explanation, that, based
upon the reasoning in Gatuma, plaintiff’s negligent supervision claim is preempted by
clear implication. Docket No. 20 at 7. Defendant’s position appears to be that,
because a common law negligent supervision claim based upon an employee’s sexual
harassment and a sexual harassment claim under CADA share similar elements of
proof, CADA should preempt plaintiff’s negligent supervision claim. Id. However,
whether a common law claim and a statutory claim share elements of proof or are
otherwise cumulative is not the test for preemption under Colorado law. Rather, if the
legislature wishes to abrogate a common law right by statute, it must manifest its intent
to do so explicitly or by clear implication. Brooke, 906 P.2d at 68. “A statute is merely
cumulative if the object of the legislature was not to interfere with a plaintiff’s existing
rights, but to give him or her additional relief.” Vaughan v. McMinn, 945 P.2d 404, 408
(Colo. 1997). The Court is not persuaded that the Colorado Suprem e Court would, if
presented with the opportunity, find that the General Assembly intended for CADA to
preempt a common law claim for negligent supervision or that result should follow by
clear implication. See Lamb v. Rizzo, 391 F.3d 1133, 1138 (10th Cir. 2004) (holding
that court interpreting state law must, in the absence of authoritative precedent, predict
how the state’s highest court would rule).3 Although CADA was amended in 1999 to
explicitly prohibit harassment that does not culminate in a tangible employment action
against a plaintiff, compare Brooke, 906 P.2d at 69, with § 24-34-402(1)(a), defendant
does not provide legislative history indicating that the General Assembly’s intent in
enacting that amendment was to preempt common law claims based upon sexual
harassment. To the contrary, the Colorado Supreme Court in Horodyskyj v. Karanian,
32 P.3d 470, 479 (Colo. 2001), noted that “cum ulative remedies, such as common-law
claims, are available to victims of sexually discriminatory conduct in the workplace.” Id.
(citing Brooke, 906 P.2d at 68-70).
The Colorado Supreme Court has similarly not retreated from its conclusion that
CADA does not “indicate a legislative intent to exclusively address the impact of
discrimination on the individual claimant.” Brooke, 906 P.2d at 69. In City of Colorado
Springs v. Conners, 993 P.2d 1167, 1174 (Colo. 2000), the court reiterated that the
Colorado Civil Rights Act (“CRA”) “was not designed primarily to compensate individual
claimants but rather to eliminate discriminatory practices as defined by the Act.” The
forms of relief available under CADA “are equitable in nature and are aimed at
eliminating workplace discrimination, not compensating individuals for their particular
In so concluding, the Court need not and does not take a position on the
question of whether CADA preempts common law wrongful discharge claims. As
discussed below, courts answering that question in the affirmative base their conclusion
on reasons not directly applicable to negligent supervision claims.
injuries arising from violations of the CRA.” Id. at 1175; see also Coats v. Dish
Network, L.L.C., 303 P.3d 147, 154 (Colo. App. 2013); Watson v. Public Service Co. of
Colo., 207 P.3d 860, 865 (Colo. App. 2008).
Defendant has failed to provide a sufficient basis for concluding that the General
Assembly intended for CADA to be the exclusive remedy against an employer who
negligently supervises an employee engaging in sexual harassment against a fellow
employee. Thus, defendant’s motion to dismiss on this issue will be denied.
2. Title VII
Defendant argues that plaintiff’s negligent supervision claims are duplicative of
her Title VII harassment claim and should therefore be dismissed. Docket No. 20 at 89. Defendant relies on much of the same authority as it does for its CADA preemption
argument. See id. Thus, the Court construes defendant’s argument as asserting that
Title VII preempts or bars plaintiff’s negligent supervision claim. However, defendant
does not argue that it could not reasonably comply with both Title VII and state tort law
concerning negligent supervision. See Florida Lime & Avocado Growers, Inv. v. Paul,
373 U.S. 132, 142-43 (1963). Rather, def endant suggests that, by asserting a
negligent supervision and Title VII claim based upon the same conduct, plaintiff may be
frustrating Title VII’s “carefully-crafted damages scheme.” Docket No. 26 at 3. The
Court disagrees. First, defendant fails to cite any relevant authority in support of its
claim that Title VII’s “carefully-crafted damages scheme” was intended to preempt
plaintiff’s negligent supervision claim. In an unpublished decision, the Tenth Circuit
held that Title VII did not preempt a plaintiff’s tort claims arising out of workplace sexual
harassment. See Pascouau v. Martin Marietta Corp., 1999 WL 495621, at *11 (10th
Cir. July 14, 1999) (unpublished) (reversing district court’s grant of summary judgment
as to plaintiff’s tort claims for extreme and outrageous conduct, invasion of privacy, and
negligent supervision).4 The court, relying on California Fed. Sav. & Loan Ass’n v.
Guerra, 479 U.S. 272, 281 (1987), concluded that “T itle VII does not manifest
Congress’ intent to occupy the field of employment discrimination law, especially in
cases like this, where the state tort claims [plaintiff] made merely augment her federal
claims and do not conflict with the provisions of Title VII or prevent the accomplishment
of its purposes.” Id.; see also Thorsberg v. Gen. Motors Corp., 2005 WL 2461169, at
*10 (W.D. Okla. Oct. 4, 2005) (“In light of cases which allow both discrimination claims
and state tort claims to proceed to trial, it appears that the Tenth Circuit would allow
plaintiff’s state tort claims to go to trial along with her federal discrimination claims.”
(citing Daemi v. Church’s Fried Chicken, Inc., 931 F.2d 1379 (10th Cir. 1991)). But see
Pretlow v. Garrison, 420 F. App’x 798, 801 (10th Cir. 2011) (unpublished) (holding that
Title VII was exclusive remedy for federal employee’s discrimination and retaliation
claim). Defendant does not attempt to distinguish or otherwise address Pascouau.
Rather, defendant incorrectly quotes Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.
274, 286 (1998), as stating that “[a]llowing a plaintiff to assert a duplicative state law
claim would constitute an end-run around [Title VII’s] limitations.” See Docket No. 26 at
3. Gebser contains no such language and, moreover, does not support defendant’s
argument. The issue in Gebser was whether a plaintiff could recover damages through
Although Pascouau is not precedential, the Court finds the Tenth Circuit’s
reasoning persuasive. See 10th Cir. R. 32.1.
a private right of action under Title IX. 524 U.S. at 277. In shaping an appropriate
remedy, the Court declined to allow the unlimited recovery of damages in part because,
when Title IX was enacted, damages were not yet available under Title VII. Id. at 28586. Gebser does not therefore support the proposition for which defendant cites it.
Second, the premise of defendant’s argument – that plaintiff’s Title VII and
negligent supervision claims are based upon the same conduct – is incorrect. Plaintiff’s
complaint leaves open the possibility that some of Mr. Alvarado’s harassing conduct
would not be considered gender-based, thereby falling outside of the conduct Title VII
was intended to prohibit. See, e.g, Docket No. 6 at 4, ¶ 22 (“Mr. Alvarado threatened
Ms. Alarid with bodily harm and informed her that he had a gun”); see also Keller v.
Koca, 111 P.3d 445, 448 (Colo. 2005) (describing negligent supervision claim). Thus,
plaintiff’s negligent supervision and Title VII claims cannot be fairly read to base such
claims on identical conduct.
Third, defendant also relies, by way of analogy, on cases where courts have
ruled that tort claims for wrongful discharge in violation of public policy were barred
because the statute providing the requisite public policy provides a wrongful discharge
remedy. See, e.g., Gatuma, 2012 WL 5354932, at *5; Caspar v. Lucent Techs., Inc.,
280 F. Supp. 2d 1246, 1249 (D. Colo. 2003); Krauss v. Catholic Health Initiatives
Mountain Region, 66 P.3d 195, 203 (Colo. App. 2003); Gamble v. Levitz Furniture Co.
of the Midwest Inc., 759 P.2d 761, 766 (Colo. App. 1988). Generally speaking, these
cases turn on the following reasoning:
The concept of a wrongful discharge evolved as an exception to the at-will
employment doctrine and is designed to provide a remedy for unlawful
adverse employment actions where no cause of action for breach of contract
would lie. The Colorado courts have expressly disallowed its application
where a statute provides a wrongful discharge remedy.
Caspar, 280 F. Supp. 2d at 1249. Such reasoning has no apparent application to the
tort of negligent supervision, which places upon employers a duty independent of Title
VII or CADA to “recognize a potential employee’s attribute[s] of character or prior
conduct which would create an undue risk of harm to those with whom the employee
came in contact in executing his employment responsibilities.” Keller, 111 P.3d at 448.
For the foregoing reasons, the Court rejects defendant’s argument that plaintiff
cannot assert both a Title VII and a negligent supervision claim in this case.
B. Negligent Supervision Claim Based Upon Ms. Hurtado’s Conduct
Defendant argues that the WCA provides plaintiff’s exclusive remedy against
defendant for any injuries suffered as a result of Ms. Hurtado’s assault. Docket No. 20
at 13-14. The preemptive effect of the WCA is a jurisdictional issue and is therefore
resolved at the motion to dismiss stage under Fed. R. Civ. P. 12(b)(1). Stuart v. Colo.
Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). T he WCA “provides
exclusive remedies for employees suffering work-related injuries and occupational
diseases” and, as a result, bars tort actions “against an employer for injuries that are
compensable under the Act.” Horodyskyj, 32 P.3d at 474. The WCA provides an
exclusive remedy for injuries occurring where, among other things, “the injury . . . is
proximately caused by an injury or occupational disease arising out of and in the course
of the employee’s employment and is not intentionally self-inflicted.” Colo. Rev. Stat.
§ 8-41-301(1). However, “the phrases ‘arising out of’ and ‘in the course of’ are not
synonymous and a claimant must meet both requirements.” Horodyskyj, 32 P.3d at
475. The former phrase refers to the origin or cause of an injury, requiring “a causal
connection between the injury and the work conditions for the injury to arise out of the
employment.” Id. “An injury ‘arises out of’ employment when it has its origin in an
employee’s work-related functions and is sufficiently related to those functions to be
considered part of the employee’s employment contract.” Id. There appears to be no
dispute as to the latter phrase.
The Colorado Supreme Court has divided willful assaults into three categories:
employment risks, personal risks, and neutral risks. City of Brighton v. Rodriguez, 318
P.3d 496, 502-03 (Colo. 2014). Only injuries caused by personal risks are
compensable outside of the WCA. Id. Inherently private assaults are those in which
“the animosity or dispute that culminates in an assault is imported into the employment
from claimant’s or tortfeasor’s domestic or private life, and is not exacerbated by the
employment.” Horodyskyj, 32 P.3d at 477 (quotations omitted). Such assaults have
their origin in private affairs and therefore have “an insufficient nexus between the
assault and the employment conditions or functions for the injury to arise out of
employment.” Id. Neutral risks are those risks that “are not associated with either the
employment itself or with the employee him- or herself.” Id. at 503.
Defendant argues that plaintiff’s injuries arose out of a neutral risk because, but
for plaintiff’s and Ms. Hurtado’s employment, the assault would not have occurred in the
manner it did. Docket No. 26 at 8-9. Defendant cites Rodriguez for the proposition
that, regardless of whether plaintiff’s injury could also be considered to have resulted
from a private risk, plaintiff’s claim must be dismissed pursuant to the “but for”
causation standard. Id. Defendant’s argument is premised on a misinterpretation of
Rodriguez. In Rodriguez, the Colorado Supreme Court reviewed an Administrative Law
Judge’s (“ALJ”) decision that an unexplained fall was noncompensable under the WCA.
318 P.3d at 501. The court was bound by the ALJ’s factual finding that plaintiff’s injury
did not arise out of a personal risk and therefore held that an unexplained fall
necessarily constitutes a neutral risk. Id. at 503-04. The court reaffirmed that, when
evaluating whether an unexplained injury was caused by a neutral risk, “but for”
causation applies. Id. at 504. Plaintiff’s injuries were not “unexplained” and are not
therefore automatically considered a neutral risk. Moreover, Rodriguez does not stand
for the proposition that WCA preemption at the motion to dismiss stage is determined
solely by a “but for” causation standard. Defendant’s arguments to the contrary are
The question therefore becomes whether plaintiff has alleged sufficient facts
upon which to conclude that her injury was caused by a private risk. Plaintiff’s
amended complaint alleges that she sought a restraining order against Mr. Alvarado
and, at a July 25, 2013 hearing, called Ms. Hurtado to testify as a witness on her behalf.
Docket No. 6 at 5, ¶¶ 24, 26. Ms. Hurtado lied to protect Mr. Alv arado and
subsequently began retaliating against plaintiff at work until, on October 1, 2013, Ms.
Hurtado assaulted plaintiff. Id. at 5, ¶¶ 26-29. There is no indication that Ms. Hurtado
engaged in harassing or assaultive conduct towards plaintiff before the July 25, 2013
hearing or that she testified at the hearing as a representative of defendant. Defendant
does not dispute these allegations or otherwise contradict them with evidence outside
the complaint5; thus, the Court accepts them as true. See Stuart, 271 F.3d at 1225.
Such facts plausibly state a claim that Ms. Hurtado’s assault of plaintiff was inherently
private, specifically, that her animosity was created by plaintiff’s decision to pursue a
restraining order against Mr. Alvarado – a matter which occurred outside the workplace
– and was merely imported into the employment context. Plaintiff has therefore alleged
sufficient facts to survive defendant’s motion to dismiss on the issue of whether her
negligent supervision claim based upon Ms. Hurtado’s conduct is barred by the WCA.
2. Failure to State a Claim
Defendant alleges that plaintiff has failed to state a claim for negligent
supervision with respect to Ms. Hurtado’s conduct. Docket No. 20 at 10-11. T o
establish a negligence claim, a plaintiff must show “(1) the existence of a legal duty to
the plaintiff; (2) the defendant breached that duty; and (3) that the breach of the duty
caused the harm resulting in damages to the plaintiff.” Keller, 111 P.3d at 447. “To
establish liability, the plaintiff must prove that the employer has a duty to prevent an
unreasonable risk of harm to third persons to whom the employer knows or should have
known that the employee would cause harm.” Id. at 448. As discussed above, the tort
is predicated on an employer’s ability to recognize an employee’s attributes, character,
or prior conduct that create an undue risk of harm to those persons the employee
Although defendant provides evidence that it had a worker’s compensation
policy in place, see Docket No. 26-1; Docket No. 26-2, such evidence does not
challenge the factual allegations in the amended complaint.
encounters in performing his or her job. Id. Moreover, “there must be a connection
between the employer’s knowledge of the employee’s dangerous propensities and the
harm caused.” Id. at 450.
Plaintiff alleges that, prior to October 1, 2013, Ms. Hurtado targeted plaintiff at
work by making frequent rude comments and physically throwing plaintiff’s work on the
floor. Docket No. 6 at 5, ¶ 27. Ms. Hurtado also engaged in aggressive behavior
toward other co-workers during that time. Id. at 6, ¶ 36. Plaintiff and co-workers
informed defendant of such behavior. Id. at 5-6, ¶¶ 28, 36. Prior to Ms. Hurtado’s
assault on plaintiff, Ms. Hurtado got angry and threatened to fight Ms. Deleon. Id. at 5,
¶ 30. Although plaintiff does not specifically allege that defendant was aware of Ms.
Hurtado’s threat to fight Ms. Deleon, when viewed in the appropriate light, the
seriousness of that incident combined with plaintiff’s and co-workers’ reports of Ms.
Hurtado’s aggressive behavior created a foreseeable risk, of which defendant knew or
should have known, that Ms. Hurtado would physically harm one of her co-workers.
Ms. Hurtado assaulted plaintiff, a co-worker. Thus, plaintiff has stated a claim for
negligent supervision. Compare Keller, 111 P.3d at 450 (“This proof supports a finding
that Keller knew that Uzan’s continued employment created a risk that young women
working at the dry cleaners and potential customers would be subject to sexual contact
and lewd behavior during business hours and Keller therefore had a duty to take
reasonable steps to prevent that harm from occurring.” (emphasis in original)), with
White v. City & Cnty. of Denver, No. 13-cv-01761-CMA-MJW, 2015 WL 4748303, at *4
(D. Colo. Aug. 12, 2015) (“there is no connection between Code-3’s alleged knowledge
of Burke’s misrepresentation of his employment status or its training methods and the
harm Burke allegedly caused Plaintiff”).
C. Negligent Retention Claim
Defendant argues that plaintiff’s negligent supervision and negligent retention
claims are duplicative and that the latter claim should therefore be dismissed. Docket
No. 20 at 14. As an initial matter, the cases defendant’s motion cites do not stand for
the proposition that negligent retention claims are generally duplicative of negligent
supervision claims and must therefore be dismissed. See English v. Griffith, 99 P.3d
90, 93 (Colo. App. 2004) (agreeing with plaintiff that outrageous conduct and intentional
infliction of emotional distress claims are “two ways of stating the same claim”); Van
Osdol v. Vogt, 892 P.2d 402, 408-09 (Colo. App. 1994) (disc ussing negligent
supervision and retention claims together and dismissing both on same grounds). The
additional cases cited in defendant’s reply brief similarly do not mandate dismissal of
plaintiff’s negligent retention claim. See, e.g., Valles v. Gen-X Echo B, Inc., No. 13-cv00201-RM-KLM, 2013 WL 5861653, at *6 n.2 (D. Colo. Oct. 8, 2013) (n oting that Van
Osdol “appears to treat ‘negligent supervision’ and ‘negligent retention’ as the same
claim”). On the other hand, plaintiff does not cite any authority explicitly stating that the
two claims are distinct. See Docket No. 22 at 14. It appears that Colorado plaintif fs
assert negligent supervision and negligent retention theories both as separate claims
and as a single claim without much comment from courts. Compare Van Osdol, 892
P.2d at 408-09 (pled as separate claims), with Casey v. Christie Lodge Owners Ass’n,
Inc., 923 P.2d 365, 367-68 (Colo. App. 1996) (considering whether plaintiff should be
permitted to “add a claim for negligent supervision or negligent retention” (emphasis
The Court need not decide whether, as a general matter, negligent supervision
and negligent retention claims are duplicative because the claims alleged in this case
are not. Although the two claims may arise from the same general duty of care,
namely, “a duty to prevent an unreasonable risk of harm to third persons to whom the
employer knows or should have known that the employee would cause harm,” Keller,
111 P.3d at 448, plaintiff’s negligent supervision claim alleges that defendant breached
its duty by failing to properly supervise Mr. Alvarado and Ms. Hurtado, Docket No. 6 at
8, ¶¶ 54, 58, whereas plaintiff’s negligent retention claim alleges that defendant
breached its duty by continuing to retain Mr. Alvarado and Ms. Hurtado in light of the
risk they posed to third parties. Id. at 9, ¶¶ 62, 65. Thus, regardless of how the claims
are styled in the amended complaint, plaintiff has identified two distinct theories of
liability and defendant has asserted no legitimate reason why plaintiff should not be
able to argue both theories at trial. This aspect of defendant’s motion to dismiss is
For the foregoing reasons, it is
ORDERED that defendant’s Partial Motion to Dismiss [Docket No. 20] is
DATED September 16, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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