Murphy v. Lowes Companies, Inc.

Filing 50

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 6/4/18 re 16 MOTION to Dismiss. The Court respectfully RECOMMENDS that the Motion 16 be GRANTED. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01720-REB-KLM
SHANNON MURPHY,
Plaintiff,
v.
LOWES COMPANIES, INC.,
Defendant.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion to Dismiss [#16]1 (the
“Motion”). Plaintiff filed a Response [#17] in opposition to the Motion [#16], and Defendant
filed a Reply [#27]. Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the
Motion [#16] has been referred to the undersigned for recommendation. See [#26]. The
Court has reviewed the Motion, Response, Reply, the entire case file, and the applicable
law, and is sufficiently advised in the premises. For the reasons set forth below, the Court
respectfully RECOMMENDS that the Motion [#16] be GRANTED.
I. Summary of the Case
This lawsuit was filed on July 14, 2017. Compl. [#1]. Plaintiff asserted five claims
for relief but the only claim at issue in the Motion is the claim for intentional infliction of
emotional distress (“IIED”). Motion [#16].

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“[#16]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Recommendation.

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The Court construes all of the allegations of the complaint in favor of Plaintiff, the
non-moving party. Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting
Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). These allegations are as
follows:
During April 2015, Plaintiff was hired by Defendant for the position of Project
Specialist Interiors (“PSI”) for Defendant’s Greeley store. Am. Compl. [#14] ¶ 4. However,
the start date of the PSI position was delayed so Plaintiff was hired on temporarily to the
Garden Center of the Greeley store. Id. Plaintiff performed duties for the Garden Center
until she officially began work as a PSI in the middle of July. Id. ¶¶ 9-10.
While working in the Garden Center, Plaintiff suffered a heart attack after moving a
self-powered pallet jack loaded with hundreds of pounds of materials. Id. ¶¶ 11, 17. After
recovering from her heart attack, Plaintiff inquired about her health insurance and was
subsequently told that she was not yet covered because the PSI Program had not yet
started. Id. ¶ 19. In order to pay her mortgage and medical expenses, Plaintiff applied for
an emergency grant from Lowe’s with assistance from her superior, Florinda Romero2
(“Romero”). Id. ¶ 20. Ms. Romero did not file the application for several weeks and when
she did she filled it out incorrectly. Id. ¶ 23. Ms. Romero then filed a new application that
was approved and payment was issued to Plaintiff within forty-eight hours. Id.
In July 2015, Plaintiff began performing the duties of a PSI; however, Plaintiff was
still paid an hourly rate and not compensated for mileage. Id. ¶ 25. After complaining
about back pay, the relationship between Plaintiff and Ms. Romero soured. Id. ¶ 26. Ms.
Romero and the in-store manager, Sean O’Brien (“O’Brien”), became hostile toward
2

The complaint does not specify what position Ms. Romero held at Lowe’s, but infers that
her position was superior to Plaintiff’s.

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Plaintiff and referred to Plaintiff as the “garden waterer.” Id. ¶ 27. In late 2015, Plaintiff was
accused of stealing commissions. Id. ¶ 29. Mr. O’Brien and Ms. Romero told the other
employees about the investigation but never told the other employees when the
investigation had concluded and that Plaintiff was cleared. Id. ¶¶ 31-32.
Later, Mr. O’Brien began to brag to the employees about how much money Plaintiff
was making for the store, which stirred resentment in the employees toward Plaintiff. Id.
¶ 33. To quell the employees’ resentment, Mr. O’Brien suggested that Plaintiff buy the
other employees gift cards and lunch. Id. ¶¶ 35, 39.
Eventually, Lee Ann Kimbrell (“Kimbrell”), the regional manager, began having
Plaintiff train other employees for open PSI positions even though doing so was not in
Plaintiff’s job description. Id. ¶ 44. During this time, Plaintiff underwent a performance
review and scored exceptionally well but only received a $0.17-per-hour raise, while other
employees were given $1.00-per-hour or $2.00-per-hour raises. Id. ¶¶ 49-51. Plaintiff
raised her concerns about the pay discrepancies with Mr. O’Brien and Ms. Romero but was
met with more hostility and was told, “You should be happy with your commissions.” Id. ¶
52.
By 2016, Plaintiff was managing thirty projects and was working at two other Lowe’s
locations, which caused Plaintiff to have to work seven days a week and at one point 148
days straight. Id. ¶¶ 54-55, 66. Around this time a new assistant store manager was hired,
Jason Krier (“Krier”). Id. ¶ 62. Mr. Krier continued the hostility toward Plaintiff by stating
that she should not be making more money than him and by stating that Plaintiff had
“Resting Bitch Face.” Id. ¶¶ 63-64.
Throughout her time at Lowe’s, Plaintiff complained about her co-workers refusing

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to perform their duties when they were supposed to assist her. Id. ¶ 69. One time, Plaintiff
learned of a co-worker allowing builders to perform work even though they had not received
the proper building permits. Id. ¶ 73. When Plaintiff raised her concerns about this incident
and other incidents concerning contractors to Ms. Kimbrell, Ms. Romero, and Mr. O’Brien,
she was told not to worry about it or was ignored. Id. ¶¶ 73-74, 81-82. Plaintiff’s struggles
with the employees and managers led her to request a transfer on multiple occasions,
which she was denied each time. Id. ¶ 57.
On one occasion Plaintiff was written up for a bad attitude after assisting a customer
who could not get assistance from other Lowe’s employees. Id. ¶¶ 85-86. Plaintiff’s
dealings with Lowe’s culminated in her again being accused of stealing commissions. Id.
¶ 95. Plaintiff was held in a room against her will for several hours. Id. ¶¶ 96. Plaintiff was
prevented from leaving the room by threats of being fired or arrested. Id. ¶¶ 98,103. In
order to leave the room Plaintiff was told that she had to sign a document which stated that
she stole commissions. Id. ¶ 109. However, Plaintiff was not allowed to read the
document. Id. ¶113. Mr. O’Brien later came into the room and told Plaintiff she was fired
and handed her $2,007 in cash. Id. ¶ 115. Plaintiff was then instructed to sign a document
which was supposedly a receipt for the cash. Id. ¶ 118. After more than two hours in the
room, Plaintiff eventually signed the document and was then escorted out through the
store. Id. ¶¶ 119-120. According to Plaintiff, the firing process and the embarrassment of
having her co-workers witness her being escorted out of the store caused her to “break
down emotionally.” Id. ¶ 123.
II. Standard of Review
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the

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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). To survive
a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as true, to provide
‘plausible grounds’ that discovery will reveal evidence to support plaintiff’s allegations.”
Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). That is, a complaint must include “enough facts
to state a claim to relief that is plausible on its face.” TON Services, Inc. v. Qwest Corp.,
493 F.3d 1225, 1235 (10th Cir. 2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the alleged misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Moreover, “[a] pleading that offers ‘labels and conclusions’ or a formulaic recitation of the
elements of a cause of action will not do. Nor does the complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citation omitted).
III. Analysis
Defendant argues that Plaintiff’s allegations do not rise to the level to support a claim
for outrageous conduct. Motion [#16] at 2. Defendant further argues that Plaintiff did not
allege any facts showing that she actually suffered severe emotional distress. Reply [#27]
at 4. The Court agrees.
“In Colorado, to state a claim for intentional infliction of emotional distress by
outrageous conduct, a plaintiff must allege behavior by a defendant that is extremely
egregious.” Coors Brewing Co. v. Floyd, 978 P.2d 663, 665 (Colo. 1999). The elements
of outrageous conduct are: (1) the defendant engaged in extreme and outrageous conduct,
(2) recklessly or with intent of causing severe emotional distress, and (3) causing the

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plaintiff severe emotional distress.” Pearson v. Kancilia, 70 P.3d 594, 597 (Colo. App.
2003). To determine whether a plaintiff has alleged behavior that is outrageous as a matter
of law, the trial court must analyze the totality of the defendant’s conduct. Green v. Qwest
Serv. Corp., 155 P.3d 383, 385 (Colo. App. 2006).

Although the question of whether

conduct is outrageous is generally one of fact to be determined by a jury, it is first the
responsibility of a court to determine whether reasonable persons could differ on the
question. Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 883 (Colo. 1994). Plaintiff’s
allegations, even taken as true, do not rise to the high standard required to support a claim
for outrageous conduct. It takes extreme behavior, the type of conduct that must lead an
average member of the community to exclaim “Outrageous!” Churchey v. Adolph Coors
Co., 759 P.2d 1336. (Colo. 1988).
Defamatory remarks have been found to be outrageous conduct when the remarks
pertain to someone’s personal life and family. See Han Ye Lee v. Colo. Times, Inc., 222
P.3d 957, 964 (Colo. App. 2009). The remarks in Han Ye Lee regarded a woman’s loyalty
to her husband and were published in a newspaper which was distributed to the public for
free. Id. at 959. Plaintiff’s allegations of defamatory remarks are not of this personal
nature nor were they widely publicized. Plaintiff alleges that fellow employees’ knowledge
of her being investigated for theft contributed to her emotional distress, but the employees
were only told that Plaintiff was being investigated, not that she was actually guilty of theft.
Am. Compl. [#14] ¶ 31. Remarks to employees that a co-worker could possibly be a thief
are not as severe as publication of a statement that a wife’s negligent actions led to her
husband’s killer being freed. See Han Ye Lee, 222 P.3d 957 at 964. According to Plaintiff,
after she was fired from the store, employees told customers that they did not know what

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happened to her or that she was “fired for doing some bad things.” Am. Compl. [#14] ¶
130. Doing “bad things” is vague and although such statements may have upset Plaintiff,
the bar for an emotional distress claim is simply higher. See Han Ye Lee, 222 P.3d 857
at 964.
An IIED claim may also survive a Rule 12(b)(6) motion when the defendant knew
of the plaintiff’s vulnerable state. See Christen-Loper v. Bret’s Electric, LLC, 175 F.Supp.
3d 1213 (D. Colo. 2016). In Christen-Loper the plaintiff suffered from bi-polar disorder and
had to be hospitalized and put on suicide watch. Id. at 1126. The defendant knew of the
plaintiff’s status and still sent a lawyer to the plaintiff’s home to terminate her employment.
Id. Compared to Christen-Loper, Plaintiff in the present case has not alleged that she
suffered from any particular mental disorder or that her supervisors were aware of any
mental suffering, but merely stated that she “broke down emotionally.” Am. Compl. [#14]
¶ 123. Plaintiff does not allege that Defendant was aware of Plaintiff’s vulnerable mental
state, if one existed, and tried to take advantage of it. It is true that in Christen-Loper the
defendant yelled at and shouted obscenities at the plaintiff, but those facts were taken in
context with the additional fact that the defendant knew of the plaintiff’s vulnerable mental
state in order to rise to the level of outrageous conduct. 175 F.Supp. 3d at 1126. Here,
Plaintiff has alleged unfair treatment and defamatory remarks from her superiors, but
“defamatory remarks do not support a claim of intentional infliction of emotional distress.”
Katz v. City of Aurora, 85 F.Supp. 3d. 1012, 1021 (D. Colo. 2000) (citing Steinberg v.
Thomas, 659 F.Supp. 789, 795 (D. Colo. 1987)).
Plaintiff’s claim is much more akin to those claims which have not survived a Rule
12(b)(6) motion. Where an employee has been subject to threats and intimidation and

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where that employee was held against his will, it was found that the defendant’s conduct
did not rise to the level of outrageous conduct. Martensen v. Koch, No. 13-cv-02411-REBCBS, 2014 WL 3057172, at *8 (D. Colo. July 7, 2014). The plaintiff in Martensen was held
against his will for numerous hours and was accused of defrauding the company.3 Id. at
*4. The court held that this conduct by the defendant, even taken as true, did not rise to
the level of outrageous conduct. Id. at *8. Even when an employee has been retaliated
against, verbally berated, and unfairly treated, courts have found that, without more, this
type of conduct does not amount to outrageous behavior. See LaBrecque v. L3 Commc’n.
Titan Corp., No. 05-cv-00642-REB-MJW, 2007 WL 1455850, at *5 (D. Colo. May 16, 2007)
(after reporting a workplace violation, an employee was angrily scolded by his superior
officer, was forced to move his work area to a basement without a desk, chair, or computer,
was then forced to move his workplace to where it was impossible to get his work done,
and then was fired).
Plaintiff alleges that she was held against her will, retaliated against, verbally
mocked and treated unfairly. Am. Compl. [#14] ¶¶ 27, 43, 64, 69, 75, 86, 96. However,
this conduct does not rise to the level of outrageousness held necessary to state a viable
IIED claim by prior case law. Plaintiff was held for approximately three hours, which is
significantly less time compared to the plaintiff in Martensen. Id. ¶ 119. Plaintiff suffered
similar retaliation to the plaintiffs in LaBrecque in that she was forced to work without an
office or computer. Id. ¶ 43. Plaintiff alleges that she was retaliated against for actions

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An exact amount of hours is not given but the plaintiff was forced to sit through several
hours of interrogation on a secluded ranch. The plaintiff was then held from 5:00 p.m. until
approximately 2:00 a.m, when the plaintiff was then forced to board a private plane. The flight
lasted about 2 hours. The plaintiff was held against his will for approximately 11 hours in total, not
including the time spent being interrogated.

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she took to assist a customer. Id. ¶¶ 85-86.

However, retaliation by employers and

employees of the kind alleged by Plaintiff does not rise to the level of outrageousness
sufficient to constitute an IIED Claim. See Ayon v. Kent Denver Sch., No. 12-cv-2546WJM-CBS, 2013 WL 1786978 (D. Colo. April 26, 2013) (stating that employer ignored the
plaintiff’s complaints, refused to speak to the plaintiff, scolded the plaintiff, lost his temper
with the plaintiff, fired the plaintiff, withheld the plaintiff’s bonus, and refused
recommendations for the plaintiff). Plaintiff’s allegations, taken in totality, See Green, 155
P.3d 383, 385, do not rise to the level of outrageous conduct as set forth in cases like
Christen-Loper and Han Ye Lee.
Regardless of whether Defendant’s conduct rises to the requisite level of
outrageousness, Plaintiff’s claim also fails because she has not articulated a manifestation
of severe mental suffering. The closest that Plaintiff comes to specifying her mental
suffering is stating that she “broke down mentally,” and that she endured emotional pain
and suffering, mental anguish, inconvenience and loss of enjoyment of life. Am. Compl.
[#14] ¶¶ 123, 165. These allegations are general and conclusory. See Martensen, 2014
WL 3057172, at *8. Even a plaintiff alleging that he suffered from anxiety and depression
which impacted his ability to sleep has been found to be too general to constitute a
manifestation of severe mental suffering. Id. Plaintiff’s allegations are more general than
the insufficient allegations pled in Martensen.
IV. Conclusion
For the foregoing reasons, the Court respectfully RECOMMENDS that the Motion

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[#16] be GRANTED.4
IT IS ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen
(14) days after service of this Recommendation to serve and file any written objections in
order to obtain reconsideration by the District Judge to whom this case is assigned. A
party’s failure to serve and file specific, written objections waives de novo review of the
Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S.
140, 147-48 (1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91
F.3d 1411, 1412-13 (10th Cir. 1996). A party’s objections to this Recommendation must
be both timely and specific to preserve an issue for de novo review by the District Court or
for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th
Cir. 1996).

Dated: June 4, 2018

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If this recommendation is adopted in full, the following claims will remain: (1) sex
discrimination in violation of Title VII of the Civil Rights Act of 1964, (2) violation of the Equal Pay
Act, (3) false imprisonment, and (4) defamation.

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