Tesone v. Empire Marketing Strategies et al

Filing 25

ORDER granting in part and denying in part 23 Defendants Combined Partial Motion to Dismiss Plaintiffs Complaint by Magistrate Judge Michael E. Hegarty on 02/12/2018. Ms. Nocerino is dismissed from this case. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02101-MEH
JONELLA TESONE,
Plaintiff,
v.
EMPIRE MARKETING STRATEGIES,
KELLY BRUCE, and
PAM NOCERINO,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Defendants Kelly Bruce and Pam Nocerino (“Defendants”) seek to dismiss Plaintiff Jonella
Tesone’s claims for interference with a contract/prospective business relationship and intentional
infliction of emotional distress (“IIED”). Ms. Tesone did not file a response to Defendants’ motion.
The Court first holds that Ms. Tesone pleads facts plausibly establishing her tortious interference
claims as to Ms. Bruce, but not as to Ms. Nocerino. Next, the Court holds that Ms. Tesone’s
allegations do not support an IIED cause of action. Accordingly, the Court grants in part and denies
in part Defendants’ motion.
BACKGROUND
I.

Facts
The following are factual allegations (as opposed to legal conclusions, bare assertions, or

merely conclusory allegations) made by Ms. Tesone in her Complaint, which are taken as true for
analysis under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

On April 23, 2013, Defendant Empire Marketing Strategies hired Ms. Tesone as a team lead.
Compl. ¶ 20, ECF No. 1. Empire classified Ms. Tesone as an at-will employee. Id. ¶ 46. Ms.
Tesone primarily assisted with new product resets, store grand openings, audits, store calls, and new
hire training at King Sooper stores in Colorado. Id. ¶ 1. When Ms. Tesone accepted Empire’s offer
of employment, she informed Empire that she had lifting restrictions because of lower back pain.
Id. ¶ 23. Accordingly, Empire limited Ms. Tesone to lifting no more than fifteen pounds. Id. ¶ 24.
During Ms. Tesone’s employment with Empire, Ms. Nocerino—Ms. Tesone’s immediate
supervisor—regularly reprimanded Ms. Tesone for the speed at which she performed tasks. Id. ¶
25. Additionally, Ms. Nocerino consistently pushed Ms. Tesone to lift more than her fifteen-pound
limit. Id. ¶ 26. As a result, Ms. Tesone began complaining of harassment to Ms. Bruce—Empire’s
President of Colorado Operations—in November 2016. Id. ¶ 27. Ms. Bruce responded by
reprimanding Ms. Tesone for her lack of professionalism and failure to be a “team player.” Id. ¶¶
28–29. Defendants continued to admonish Ms. Tesone for her performance and physical limitations
until February 28, 2017, when Ms. Bruce terminated Ms. Tesone. Id. ¶ 32.
II.

Procedural History
Based on these allegations, Ms. Tesone initiated this lawsuit on August 31, 2017. Compl.,

ECF No. 1. Ms. Tesone asserts three causes of action: (1) disability discrimination in violation of
the Americans with Disabilities Act against Empire, (2) Interference with a contract and a
prospective business relationship against Ms. Nocerino and Ms. Bruce, and (3) IIED against Ms.
Nocerino and Ms. Bruce. Id. ¶¶ 32–53.
Empire responded to the Complaint by filing an Answer, ECF No. 22. Ms. Bruce and Ms.
Nocerino filed the present Partial Motion to Dismiss, which asks the Court to dismiss Ms. Tesone’s

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second and third claims for relief. Mot. to Dismiss, ECF No. 23. Regarding the tortious interference
claims, Defendants contend Ms. Tesone does not allege they improperly interfered with Ms.
Tesone’s at-will employment contract. Id. at 5. Next, Defendants assert that Ms. Bruce’s and Ms.
Nocerino’s alleged conduct was not sufficiently outrageous to give rise to an IIED claim. Id. at 6–8.
Ms. Tesone did not file a response brief. On February 8, 2018, Defendants filed a Reply in Support
of Their Motion to Dismiss, ECF No. 24.
LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context
of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires
a two prong analysis. First, a court must identify “the allegations in the complaint that are not
entitled to the assumption of truth,” that is, those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 679–80. Second, the Court must consider the factual
allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the
allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.
Plausibility refers “to the scope of the allegations in a complaint: 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.’” Khalik v. United Air Lines, 671 F.3d
1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required to state a plausible claim will vary based on

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context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while
the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a
complaint, the elements of each alleged cause of action may help to determine whether the plaintiff
has set forth a plausible claim. Khalik, 671 F.3d at 1191.
ANALYSIS
The Court first holds that Ms. Tesone does not plead facts establishing claims against Ms.
Nocerino for interference with a contract or interference with a prospective business relationship.
However, Ms. Tesone’s allegations plausibly state tortious interference claims against Ms. Bruce.
The Court then holds that Ms. Tesone fails to plead an IIED claim against either Defendant.
II.

Interference with a Contract and a Prospective Business Relationship
Ms. Tesone’s first claim alleges Defendants tortiously interfered with Ms. Tesone’s existing

at-will employment contract and her prospective employment relationship with Empire. Compl. ¶¶
45–50, ECF No. 1. Colorado law recognizes two separate interference torts: interference with a
contract and interference with a prospective business relationship. Nutting v. RAM Sw., Inc., 106
F. Supp. 2d 1121, 1128 (D. Colo. 2000). “Tortious interference with a contract requires that: (1) the
plaintiff have a contract with another party, (2) the defendant knew or should have known of such
contract’s existence, (3) the defendant intentionally induced the other party to the contract not to
perform the contract with the plaintiff, and (4) the defendant’s actions caused plaintiff to incur
damages.” Telluride Real Estate Co. v. Penthouse Affiliates, LLC, 996 P.2d 151, 155 (Colo. App.
1999). The elements for interference with a prospective business relationship are similar; however,
“it is not necessary to prove an underlying contract.” Dolton v. Capitol Fed. Sav. & Loan Ass’n, 642
P.2d 21, 23 (Colo. App. 1981). It is sufficient to show the plaintiff suffered damages as a result of

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the defendant’s intentional interference with a prospective business relationship or contract. Id.
First, the Court finds that Ms. Tesone alleges an underlying contract with Empire of which
Defendants knew or should have known. In the employment context, courts applying Colorado law
have found that an at-will employment relationship constitutes a “contract” for purposes of a tortious
interference claim. Ramirez v. The GEO Grp., Inc., 655 F. Supp. 2d 1170, 1189–90 (D. Colo. 2009)
(“[The plaintiff’s] relationship with GEO did create an employment contract, albeit one that was ‘at
will’ and terminable by either party at any time.”); Zappa v. Seiver, 706 P.2d 440, 442 (Colo. App.
1985) (“Even a contract terminable at will is entitled to some protection from tortious unwarranted
interference.”); Mueller v. Swift, No. 15-cv-01974-WJM-KLM, 2017 WL 2362137, at *6 (D. Colo.
May 31, 2017) (stating that an individual can be liable for intentional interference with a contract
“even where a plaintiff alleges interference with an at-will employment contract, in which the
employer has the right to fire the employee at any time”). Ms. Tesone alleges she had an at-will
employment contract with Empire. Compl. ¶ 46. Furthermore, because Defendants were Ms.
Tesone’s supervisors, they knew or should have known of the contract. Therefore, the Court must
analyze whether Ms. Tesone pleads facts establishing that Ms. Bruce and Ms. Nocerino intentionally
and improperly interfered with her employment contract.
Ms. Tesone does not plead such facts with regard to Ms. Nocerino. Importantly, Ms. Tesone
alleges that Ms. Bruce, not Ms. Nocerino, terminated her. Compl. ¶¶ 31–32. Although Ms.
Nocerino allegedly reprimanded Ms. Tesone for her performance and “pushed [her] to lift more than
her medically prescribed lifting limits allowed,” Compl. ¶¶ 25–26, Ms. Tesone does not allege that
Ms. Nocerino influenced the termination decision. Because Ms. Nocerino did not interfere with Ms.
Tesone’s employment, Ms. Tesone’s second claim fails as to Ms. Nocerino.

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However, Ms. Tesone alleges that Ms. Bruce improperly interfered with her and Empire’s
employment relationship. In analyzing whether an officer or supervisor may be held personally
liable for tortiously inducing the corporation’s breach of contract with an employee, Colorado courts
consider whether the supervisor was acting within the scope of her official duties. Zappa, 706 P.2d
at 442 (“An officer or director of a corporation generally will not be held personally liable for
inducing the corporation’s breach of its contract if the officer or director is acting within the scope
of his official duties.”). A supervisor acts outside of his official duties when she terminates an
individual out of personal bias or animus. W.O. Brisben Co. v. Krystkowiak, 66 P.3d 133, 137
(Colo. App. 2002) (“[A] corporate officer may be liable if he ‘was motivated [by] personal animus
towards one or both of the contracting parties.’” (quoting Powell Prods., Inc. v. Marks, 948 F. Supp.
1469, 1478 (D. Colo. 1996))), aff’d 90 P.3d 859 (Colo. 2004). Similarly, when “the officer or
director is motivated solely by a desire to induce the corporation to breach its contract with the
plaintiff or to interfere in the contractual relations between the corporation and the plaintiff,” the
officer may be held liable. Zappa, 706 P.2d at 442; Snoey v. Advanced Forming Tech., Inc., 844 F.
Supp. 1394, 1401 (D. Colo. 1994) (stating that to prove an intentional interference claim against a
corporate officer, the plaintiff must demonstrate that the officer acted “for his own personal interests
and not the interests of the corporation”). Ms. Tesone’s allegations, taken as true, establish that Ms.
Bruce terminated Ms. Tesone out of personal bias, and not as part of her official duties.
Importantly, Ms. Tesone alleges Ms. Bruce improperly terminated her because of her
disability. Compl. ¶ 31. Despite Ms. Tesone’s estalished lifting limitation, Ms. Bruce allegedly
reprimanded Ms. Tesone for her inability to lift more than fifteen pounds and for submitting
disability harassment complaints. Id. ¶¶ 28–30. Approximately three months after Ms. Tesone

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began complaining of discrimination, Ms. Bruce allegedly terminated her. Id. at ¶ 31. Therefore,
Ms. Tesone has plausibly alleged that Ms. Bruce terminated her employment relationship out of
personal disability bias. Indeed, Defendants do not seek dismissal of Ms. Tesone’s first claim for
relief, which alleges that Empire illegally terminated Ms. Tesone because of her disability.
Relevant case law applying Colorado law supports the Court’s finding. In Snoey, the court
acknowledged that a plaintiff asserting a tortious interference claim against a corporate officer must
show the defendant was motivated by his personal bias, and not the interests of the corporation. 844
F. Supp. at 1401. The court held that the plaintiff demonstrated a disputed issue of fact as to his
tortious interference claim, because the plaintiff “presented at least some evidence that [the
defendant] was motivated by age bias . . . .” Id. Similarly, Ms. Tesone plausibly alleges her tortious
interference claims against Ms. Bruce, because she asserts Ms. Bruce was motivated by disability
bias.
In Zappa, the court held that the plaintiff demonstrated a disputed issue of fact as to whether
the defendants fired him out of personal animus, because some evidence suggested the defendants
retaliated against him. 706 P.2d at 442. According to the court, a trial was necessary to determine
“the issue of whether defendant’s action in terminating plaintiff’s employment contract was
motivated by improper personal reasons or by a desire to serve the corporate interests.” Id.
Similarly, because Ms. Tesone plausibly alleges Ms. Bruce terminated her as a result of her
disability, Ms. Tesone pleads that her termination was motivated by improper personal reasons, and
not a desire to serve Empire’s interests.
Ms. Tesone’s allegations that Ms. Bruce was motivated by disability bias distinguishes this
case from Varzirani v. Heitz, 741 F.3d 1104 (10th Cir. 2013). In that case, the court considered

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whether officers of a corporation could be liable for tortious interference under Arizona law, which
also requires that an officer act out of personal animus, and not for the benefit of the employer. Id.
at 1108. According to the court, the defendants were entitled to summary judgment, because the
evidence indicated the defendants terminated the plaintiff for business reasons. Id. at 1108–09.
Importantly, the court found “no supporting evidence” that the defendants were motivated by
personal animus or racism. Id. at 1109. Conversely, Ms. Tesone has alleged that personal disability
bias motivated Ms. Bruce’s decision to terminate her. As such, Ms. Tesone has stated claims against
Ms. Bruce for intentional interference with a contract and intentional interference with a prospective
business relationship.
II.

Intentional Infliction of Emotional Distress
Ms. Tesone’s third claim for relief alleges that Ms. Nocerino and Ms. Bruce “engaged in a

pattern of extreme and outrageous conduct that intentionally and recklessly caused Ms. Tesone
severe emotional distress.” Compl. ¶ 52, ECF No. 1. To assert a claim for IIED under Colorado
law, a plaintiff must plead “(1) the defendant(s) 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.” Archer v. Farmer Bros. Co., 70 P.3d 495, 499 (Colo. App.
2002). “[T]he level of outrageousness required for conduct to create liability for intentional
infliction of emotional distress is extremely high.” Coors Brewing Co. v. Floyd, 978 P.2d 663, 666
(Colo. 1999). The defendant’s conduct must “go beyond all possible bounds of decency, and [] be
regarded as atrocious, and utterly intolerable in a civilized community.” Id. (quoting Restatement
(Second) of Torts § 46 (1965)).
Here, Ms. Tesone fails to allege that Ms. Nocerino’s and Ms. Bruce’s conduct meets the high

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bar of outrageousness required under Colorado law. Ms. Tesone alleges Ms. Nocerino consistently
reprimanded her for her speed in performing work activities and “regularly pushed [her] to lift more
than her medically prescribed lifting limits allowed.” Compl. ¶¶ 25–26. Ms. Bruce discouraged Ms.
Tesone from bringing harassment complaints and reprimanded her for professionalism and company
policy violations. Id. ¶¶ 28–30. These allegations do not demonstrate conduct that goes beyond all
possible bounds of decency.
Colorado courts generally do not permit IIED claims in the employment context unless the
allegations involve excessive public humiliation, ridicule, and abusive treatment. Compare Wing
v. JMB Prop. Mgmt. Corp., 714 P.2d 916, 918–19 (Colo. App. 1985) (holding that allegations of
sexual harassment, public humiliation, and reticule were sufficient to state a claim for IIED),
superseded by statute on other grounds, Colo. Rev. Stat. § 24-34-306(14), as recognized in Brooke
v. Rest. Servs., Inc., 881 P.2d 409, 411 (Colo. App. 1994), with Bigby v. Big 3 Supply Co., 937 P.2d
794, 800–01 (Colo. App. 1996) (allegations that the defendant took the plaintiff aside and informed
him that he would be terminated as a result of his heart condition were insufficient to state an
outrageous conduct claim). In Ayon v. Kent Denver School, the plaintiff alleged the defendants
retaliated against her by refusing to speak with her, losing their temper with her, and scolding her
to stop filing reports. No. 12-cv-02546-WJM-CBS, 2013 WL 1786978, at *3 (D. Colo. Apr. 26,
2013). The court found these allegations insufficient to state an IIED claim. Id. at *3–5. According
to the court, “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.’” Id. at *4 (quoting Coors Brewing Co., 978 P.2d at 666). Similarly, Ms.

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Tesone’s allegations that Defendants pushed her to work beyond her physical limits and
reprimanded her for bringing disability discrimination complaints are insufficient to rise to the level
of atrocious and utterly intolerable conduct.
Moreover, the allegations establishing Ms. Tesone’s discrimination claim are the same as
those supporting her claim for IIED. “Where the allegations forming the basis of a claim for
outrageous conduct are the same as those forming the basis for a claim of discrimination, and
nothing more, they fail to state an independently cognizable claim for which relief can be granted
under Rule 12(b)(6).” Visor v. Sprint/United Mgmt. Co., 965 F. Supp. 31, 33 (D. Colo. 1997);
Bigby, 937 P.2d at 800 (“[T]o hold that every discrimination claim automatically constituted
outrageous conduct would stretch the tort far beyond its intended boundaries.”). Ms. Tesone alleges
Defendants discriminated against her by reprimanding her (and eventually terminating her) for
refusing to lift more than her disability permitted. Compl. ¶¶ 33–39. According to Ms. Tesone, this
same conduct caused her emotional distress. Id. ¶¶ 51–53. Because, “an IIED claim must be distinct
from a plaintiff’s employment claim,” Ayon, 2013 WL 1786978, at *4, Ms. Tesone fails to state an
IIED claim.
CONCLUSION
In sum, the Court holds that Ms. Tesone’s allegations, taken as true, are sufficient to state
claims against Ms. Bruce for intentional interference with a contract and intentional interference
with a prospective business relationship. However, because Ms. Tesone does not allege that Ms.
Nocerino terminated her or caused Ms. Bruce to terminate her, Ms. Tesone’s second claim fails as
to Ms. Nocerino. Next, the Court holds that Ms. Tesone does not plead sufficient facts to give rise
to an IIED claim. Accordingly, Ms. Nocerino is dismissed from this case. Defendants’ Combined

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Partial Motion to Dismiss Plaintiff’s Complaint [filed January 12, 2018; ECF No. 23] is granted in
part and denied in part.
Entered and dated at Denver, Colorado, this 12th day of February, 2018.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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