Judson V. Walgreens CO. et al
ORDER that the September 10, 2020 Recommendation of United States Magistrate Judge (Doc. # 37 ) is ADOPTED IN PART AND REJECTED IN PART. The Recommendation is ADOPTED to the extent it concludes that Plaintiff's ' Compensation Act and tha t Plaintiff has plausibly stated an outrageous conduct claim against Defendants. It is REJECTED to the extent it recommends that Plaintiff's aiding and abetting claims against Defendants Bramlage and Glenn (Claims 4 and 6) should proceed. Tha t Defendants' Motion to Dismiss Plaintiff's Fourth, Sixth, and Seventh Claims for Relief (Doc. # 14 ) is GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED as to Claims 4 and 6; such claims are DISMISSED WITH PREJUDICE. The Motion is DENIED as to Claim 7, by Judge Christine M. Arguello on 3/31/2021.(evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 20-cv-00159-CMA-STV
KATHRYN L. JUDSON,
MITCHELL BRAMLAGE, and
ORDER ADOPTING IN PART AND REJECTING IN PART
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the September 10, 2020 Recommendation of
United States Magistrate Judge (Doc. # 37), wherein Magistrate Judge Scott T.
Varholak recommends denying Defendants’ Motion to Dismiss Plaintiff’s Fourth, Sixth,
and Seventh Claims for Relief (“Motion to Dismiss”) (Doc. # 14). Defendants Walgreens
Co. (“Walgreens”), Mitchell Bramlage, and Jamie Glenn (together, “Defendants”) timely
objected to the Recommendation. For the following reasons, the Court partially adopts
and partially rejects the Recommendation.
Judge Varholak described the factual background of this case in the
Recommendation (Doc. # 37 at 1–4), which is incorporated herein by reference. See 28
U.S.C. § 636(b)(1)(B) (2018); Fed. R. Civ. P. 72(b). The Court therefore recounts only
the facts 1 necessary to address Defendants’ objections to the Recommendation.
Plaintiff, Dr. Kathryn L. Judson, is a female pharmacist employed by Walgreens.
On or about March 18, 2019, Dr. Judson transferred from a Walgreens store in
Maryland to a Walgreens store in Clifton, Colorado (“Clifton Store”). (Doc. # 1 at ¶ 25.)
Almost immediately, older, male customers began making unwanted sexual comments
and sexual advances towards Dr. Judson. (Id. at ¶ 26.) Dr. Judson raised her concerns
with her Store Manager, Defendant Glenn, and made clear that she did not welcome
and found the sexual harassment to be offensive. Defendant Glenn responded that Dr.
Judson “[s]hould take it as a compliment.” (Id. at ¶ 28.) Defendant Bramlage
reprimanded Ms. Judson for referring to the male customers as “old” and took no action
related to the customers’ sexual harassment of Dr. Judson. (Id. at ¶ 30.)
On April 6, 2019, Dr. Judson sent an email to Defendant Bramlage that reported
“the most disgusting” incident of sexual harassment of the many she had encountered.
Dr. Judson noted that Defendant Glenn had not supported her at all after she previously
reported the sexual harassment. (Id. at ¶¶ 32–34.) She alleges that Defendant Glenn,
Defendant Bramlage, and Defendant Walgreens took no action to stop the sexual
In May 2019, Dr. Judson requested a transfer from the Clifton Store because the
sexual harassment was causing her mental and emotional health issues. (Id. at ¶ 36.)
This Court draws the following facts from the Complaint and presumes they are true for
purposes of the instant Motion to Dismiss. See Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir.
Defendant Bramlage rejected Dr. Judson’s request for a transfer and stated that he
wanted Dr. Judson to stay for the six months she had committed to the position at the
Clifton Store. Dr. Judson proposed to Bramlage that she stay at the Clifton Store for six
more weeks and then transfer in July 2019 to an open pharmacist position in the Denver
area. Defendant Bramlage rejected her request. (Id. at ¶¶ 37–42.)
Dr. Judson had numerous communications with Defendants Bramlage and Glenn
about the persisting sexual harassment from customers. Neither Defendant took any
actions to stop the harassment.
On or about June 27, 2019, Dr. Judson was again sexually harassed by a
Walgreens customer she assisted in the drive-thru. (Id. at ¶ 43.) Shaken by the
harassment, Dr. Judson left the window, sat down, and cried. Dr. Judson reported the
sexual harassment to Defendant Glenn, who responded, “You should quit wearing
skirts. You know that’s why it is happening.” (Id. at ¶¶ 44–47.)
Dr. Judson also reported the incident to the Walgreens Human Resources
Department (“HR Department”). (Id. at ¶ 49.) The HR Department sent Dr. Judson a
copy of the company’s dress code and instructed her to be sure she was following it. Dr.
Judson felt insulted and humiliated, as she always dressed professionally for work in
compliance with the dress code. The HR Department also instructed her to document
the customer’s name each time she was sexually harassed. (Id. at ¶¶ 50–52.)
In August 2019, Dr. Judson shared with a Walgreens colleague that she
was investigating her rights with regards to the sexual harassment and hostile work
environment. Plaintiff believes that this colleague shared this information with Defendant
Glenn, because Walgreens then began retaliating against Dr. Judson through negative
performance reviews. (Id. at ¶¶ 54–55.)
On September 9, 2019, Walgreens issued Plaintiff a Step 1 Written Violation for
allegedly violating HIPPA in an email she sent to Defendant Bramlage. (Id. at ¶¶ 56–
58.) Plaintiff alleges that her email concerned proposed efficiencies and improved
customer care at the store pharmacy level and did not violate HIPPA. Next, on or about
September 9, 2019, Walgreens issued Plaintiff a Step 2 Written Violation for allegedly
violating a safety procedure by pulling pharmaceuticals herself and filling several
prescriptions. Plaintiff alleges that her conduct did not violate any safety procedures and
the Step 2 Written Violation was issued in retaliation for Plaintiff’s complaints of sexual
harassment. (Id. at ¶¶ 61–65.)
Following the exhaustion of her administrative remedies, Plaintiff initiated the
instant action with her Complaint and Jury Demand on January 20, 2020. (Doc. # 1.)
Therein, Plaintiff asserts the following seven claims: (1) sex discrimination and
harassment based on gender under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. 2000e, et seq. (“Title VII”) against Walgreens; (2) retaliation under
Title VII against Walgreens; (3) sex discrimination and harassment based on gender
under the Colorado Anti-Discrimination Act, as amended, Colo. Rev. Stat. § 24-34-402,
et seq. (“CADA”) against Walgreens; (4) aiding and abetting a sexually hostile work
environment under CADA against Bramlage and Glenn; (5) retaliation under CADA
against Walgreens; (6) aiding and abetting retaliation under CADA against Bramlage
and Glenn; and (7) common law outrageous conduct against all Defendants. See
Defendants filed the instant Motion to Dismiss (Doc. # 14) on March 10, 2020.
The Court referred the Motion to Judge Varholak, who issued his Recommendation on
September 10, 2020. (Doc. # 37.) Defendants timely objected to the Recommendation.
(Doc. # 38.) Plaintiff did not file a response to Defendants’ Objections.
REVIEW OF A RECOMMENDATION
When a magistrate judge issues a recommendation on a dispositive matter, Fed.
R. Civ. P. 72(b)(3) requires that the district judge “determine de novo any part of the
magistrate judge’s [recommended] disposition that has been properly objected to.” An
objection is properly made if it is both timely and specific. United States v. One Parcel of
Real Prop. Known As 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). In
conducting its review, “[t]he district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
In the absence of a timely objection, however, “the district court may review a
magistrate [judge’s] report under any standard it deems appropriate.” Summers v. Utah,
927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)
(stating that “[i]t does not appear that Congress intended to require district court review
of a magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings.”)).
FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to
dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). “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.”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation
“A court reviewing the sufficiency of a complaint presumes all of [a] plaintiff’s
factual allegations are true and construes them in the light most favorable to the
plaintiff.” Hall, 935 F.2d at 1198. “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) (emphasis added)
(citing Bell Atlantic 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. The Iqbal evaluation requires two prongs of analysis. First, the court
identifies “the allegations in the complaint that are not entitled to the assumption of
truth,” that is, those allegations which are legal conclusion, bare assertions, or merely
conclusory. Id. at 679–81. Second, the court considers 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 679.
However, the court need not accept conclusory allegations without supporting
factual averments. Southern Disposal, Inc. v. Texas Waste, 161 F.3d 1259, 1262 (10th
Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678. “Nor does the complaint suffice if it tenders naked assertion[s] devoid
of further factual enhancement.” Id. (citation omitted). “Where a complaint pleads facts
that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id. (citation omitted). If the allegations
“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, 1249 (10th Cir. 2008) (quoting
Twombly, 550 U.S. at 570).
Two questions are at issue in Defendants’ Objections to the Recommendation:
(1) whether Plaintiff may bring aiding and abetting claims against Defendants Bramlage
and Glenn when they are alleged to have acted only within the course and scope of
their employment for Defendant Walgreens; and (2) whether Plaintiff’s outrageous
conduct claim is preempted by the Colorado Workers’ Compensation Act.
AIDING AND ABETTING CLAIMS AGAINST INDIVIDUAL DEFENDANTS
In his Recommendation, Judge Varholak concluded that Plaintiff may assert
aiding and abetting claims against Defendants Bramlage and Glenn individually under
CADA, based on the same conduct underlying Plaintiff’s claims against Defendant
Walgreens. Defendants object to this conclusion, arguing that Plaintiff’s aiding and
abetting claims against Defendants Bramlage and Glenn must be dismissed. The Court
agrees with Defendants.
It is well established that, “[a]s an inanimate entity, a corporation must act
through agents.” Genova v. Longs Peak Emergency Physicians, P.C., 72 P.3d 454, 462
(Colo. App. 2003). Courts, including the Tenth Circuit, have therefore recognized that a
“corporate employee cannot conspire with his or her corporate employer; that would be
tantamount to a person conspiring with himself.” Royal Airline Linen v. Weinstein, No.
B186122, 2007 WL 178896, at *6 (Cal. App. Jan. 25, 2007) (quotation omitted); see
Zelinger v. Uvalde Rock Asphalt Co., 316 F.2d 47, 51–52 (10th Cir. 1963) (applying
Colorado law in holding that a corporation and its employees could not conspire to
tortiously interfere with or breach a contract). For this reason, courts apply the
intracorporate conspiracy doctrine, which provides that “a corporation cannot conspire
with its own agents or employees” because the corporation and its employees “are
members of the same collective entity” and, therefore, “there are not two separate
‘people’ to form a conspiracy.” Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd.
of Ed., 926 F.2d 505, 509–10 (6th Cir. 1991); see also Zelinger, 316 F.2d at 51–52
(explaining that, under Colorado law, “a corporation and its employee do not constitute
the ‘two or more persons' required for a civil conspiracy.”). “[S]ince a corporation can act
only through its employees, the element of concert is missing in the aiding and abetting
context just as it would be in a conspiracy context.” Applied Capital, Inc. v. Gibson, No.
Civ 05–98 JB/ACT, 2007 WL 5685131, at *12 (D.N.M. Sept. 27, 2007) (quotation
In the instant case, Plaintiff asserts aiding and abetting claims against
Defendants Bramlage and Glenn pursuant to the following provision of CADA:
(1) It shall be a discriminatory or unfair employment practice: . . .
(e) For any person, whether or not an employer, an employment agency, a
labor organization, or the employees or members thereof: . . .
(I) To aid, abet, incite, compel, or coerce the doing of any act defined in this
section to be a discriminatory or unfair employment practice[.]
Colo. Rev. Stat. § 24-34-402. The parties have not cited, nor has this Court found, any
authority considering whether a plaintiff may bring a CADA aiding and abetting claim
against a supervisor for conduct within the scope of the supervisor’s employment for a
corporate employer. 2 However, the Court finds persuasive the reasoning of the
Kentucky Court of Appeals in Cowing v. Commare, 499 S.W.3d 291, 295 (Ky. Ct. App.
2016), as modified (Sept. 9, 2016).
In Cowing, the Kentucky Court of Appeals considered whether an aiding and
abetting claim brought against a corporation’s managing agent pursuant to the Kentucky
Civil Rights Act was barred by the intracorporate conspiracy doctrine. The managingagent defendant in Cowing argued that, as a matter of law, he could not aid and abet
his corporate employer in its allegedly discriminatory employment practices because he
In her Response to the Motion to Dismiss, Plaintiff cites to Mondragon v. Adams Cty. Sch.
Dist. No. 14, No. 116CV01745LTBKMT, 2017 WL 733317, at *13 (D. Colo. Feb. 24, 2017), to
support the viability of her aiding and abetting claims. (Doc. # 26 at 4–5.) However, the court in
Mondragon did not consider the question raised by Defendants in this case; it merely
considered the sufficiency of the allegations of the plaintiff’s aiding and abetting claim. See 2017
WL 733317, at *13.
and the corporation were members of the same collective entity. Id. at 293. The court
found that the plaintiff had not argued or alleged that the managing-agent defendant
acted outside his capacity as the corporation’s agent at any time or that the agent’s
conduct was motivated by his own personal interest independent of the corporate
entity’s goals; therefore, the managing agent’s actions were solely attributable to the
corporation. Applying the principle that, “like conspiracy, the act of aiding and abetting
provides for secondary liability based on the conduct of a multiplicity of actors acting in
concert[,]” the court concluded that the requirement of a multiplicity of actors had not
been met and the aiding and abetting claim must fail. Id. at 295. 3
In this case, Plaintiff’s allegations against Defendants Bramlage and Glenn and
Walgreens are one and the same. Plaintiff alleges that Walgreens is liable for sex
discrimination, harassment, and retaliation based on the conduct of Defendants
Bramlage and Glenn. See, e.g., (Doc. # 1 at ¶¶ 94–95) (alleging that Walgreens is liable
for actions taken by Bramlage and Glenn, including subjecting Plaintiff to harassment by
customers, condoning and tolerating harassment by ignoring Plaintiff’s complaints, and
retaliating against Plaintiff through poor performance reviews and refusal to transfer
her). The Complaint does not allege that either Defendant Bramlage or Defendant
Glenn acted outside the course and scope of their employment as Plaintiff’s former
supervisors at any times relevant to the Complaint. Instead, the allegations in the
See also Hubbell v. Better Bus. Bureau of MN, No. 09-CV-1173 JMR/SRN, 2009 WL 5184346,
at *4 (D. Minn. Dec. 21, 2009) (concluding that “an individual supervisor and board member of
the employer cannot be liable for aiding and abetting unless the individual is acting in an
individual capacity, outside the scope of his or her employment, or the individual is alleged to
have aided other employees' discrimination.”).
Complaint lead this Court to conclude that Defendants Bramlage and Glenn and
Defendant Walgreens are not distinct legal actors capable of aiding and abetting one
another; instead, for the purposes of liability, they are the same entity.
The Court’s conclusion herein is consistent with well-established principles of
agency law, as well as Colorado case law that has found CADA liability where a
separate legal entity aided and abetted the employer’s discriminatory practice. See,
e.g., Colorado C.R. Comm'n v. Travelers Ins. Co., 759 P.2d 1358, 1369 (Colo. 1988)
(holding that insurance company aided and abetted employer’s discriminatory practice
by issuing insurance policy that lacked coverage for pregnancy-related expenses). To
conclude otherwise in this case would invite individual liability against supervisory
employees for any allegedly discriminatory actions they took within the scope of their
employment. See Hubbell, 2009 WL 5184346, at *4 (cautioning that “[w]ithout such a
rule, all supervisors could be held individually liable for discrimination”). This Court
declines to read such sweeping liability into the statute; like the Kentucky Court of
Appeals concluded in Cowing, “[n]othing in [CADA] appears to impose aiding-andabetting liability upon corporations and their employees for routine, collaborative
business decisions that are later challenged as discriminatory.” 499 S.W.3d at 295.
Accordingly, Plaintiff’s aiding and abetting claims against Defendants Bramlage
and Glenn fail. The Motion to Dismiss is granted with respect to Claims 4 and 6.
WHETHER THE COLORADO WORKERS’ COMPENSATION ACT PREEMPTS
PLAINTIFF’S OUTRAGEOUS CONDUCT CLAIM
Next, Defendants assert that Judge Varholak erred in concluding that Plaintiff’s
outrageous claim is not preempted by the Colorado Workers’ Compensation Act
(“CWCA”). The Court disagrees with Defendants.
Colorado's workers' compensation system establishes the benefits available to
workers injured in the course and scope of their employment and the procedures for
obtaining those benefits. Duran v. Indus. Claim Appeals Office, 883 P.2d 477, 479
(Colo. 1994). The CWCA exclusive-remedy provisions bar civil actions in tort against an
employer for injuries that are compensable under the CWCA. See Colo. Rev. Stat. §§
8–41–102 and 8–41–104. As relevant in the instant case, an employee is entitled to
workers’ compensation in all cases where, “the injury . . . is proximately caused by an
injury . . . 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).
The phrases “arising out of” and “in the course of” are not synonymous, and a
claimant must meet both requirements to be covered by the CWCA. Younger v. City &
County of Denver, 810 P.2d 647, 649 (Colo. 1991). The term “arises out of” refers to the
origin or cause of an injury. Deterts v. Times Publ'g Co., 552 P.2d 1033, 1036 (Colo.
App. 1976). 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. Popovich v. Irlando, 811 P.2d 379, 383 (Colo.
The parties to this case do not dispute that Plaintiff’s alleged injury was sustained
in the course of her employment; instead, they dispute whether the workplace
harassment alleged by Plaintiff arises out of her employment. Defendants argue that the
alleged harassment arises out of Plaintiff’s employment because Plaintiff met and
interacted with the male customers who harassed her because of her position as a
Walgreens pharmacist, Plaintiff did not have a private relationship with said customers
outside of work, and the harassment took place during Plaintiff’s work hours.
Defendants assert that the alleged harassment is either inherently connected to
Plaintiff’s employment or it is neutral, neither of which can provide the basis for a tort
claim under the CWCA, pursuant to Horodyskyj v. Karanian, 32 P.3d 470 (Colo. 2001).
The Court acknowledges that neither party has cited, and this Court is unaware
of, any case that addresses the applicability of the CWCA to workplace harassment by
a customer. However, the Colorado Supreme Court’s decision in Horodyskyj, 32 P.3d
470, is instructive in this case.
In Horodyskyj, the Colorado Supreme Court explained the test for determining
whether an injury arises out of employment for the purposes of the CWCA, which was
developed in cases involving co-employee sexual assault and sexual harassment:
Under the test, willful assaults by co-employees are divided into three
categories: (1) those assaults that have an inherent connection with the
employment; (2) those assaults that are inherently private; and (3) those
assaults that are neutral. Both the first and third categories of assaults arise
out of the employment for the purposes of the Workers' Compensation Act
and therefore prevent an employee from suing his or her employer in tort
for injuries based on such assaults. Only the second category of injuries,
inherently private assaults, does not arise out of employment and thus tort
claims based on such assaults are not barred by workers' compensation
Id. at 475 (citing Popovich, 811 P.2d at 383). The court explained that the second
category—inherently private assaults, which are not covered by the CWCA—has been
expanded “to include those [assaults] in which the assailant and victim did not know
each other prior to, or associate outside of, the employment and where the victim was
specifically chosen or targeted.” Id. at 477. The court noted that, in those cases, “the
nexus between the assault and the employee's work duties is insufficient to sustain a
determination that the harassment arose out of employment.” Id. The court further
explained that “sexual harassment ordinarily does not fall into either category of
assaults that are compensable under the Workers' Compensation Act.” Id. at 478.
Applying that framework to the facts before it, the Horodyskyj court concluded
that the alleged sexual harassment by a co-employee did not arise out of the plaintiff’s
employment. Id. The court concluded that the alleged harassment was specifically
targeted and was private and personal in nature, despite the fact that the harassment
took place exclusively during regular work hours. Id. at 473, 478. The court rejected the
lower court’s conclusion that the injury arose out of the employment because the parties
did not know each other prior to the employment and because the plaintiff was subject
to the defendant’s behavior only because of the employment. Id. at 478. The Colorado
Supreme Court concluded, therefore, that the plaintiff’s common-law tort claims were
improperly dismissed as being barred by the CWCA’s exclusive-remedy provisions. Id.
Plaintiff’s allegations in this case are analogous to those in Horodyskyj.
Construing Plaintiff’s allegations in the light most favorable to her, Plaintiff alleges that
the harassment took place during work hours, that she did not have a relationship with
any of the customers who harassed her outside of work, and that the harassment was
targeted. See (Doc. # 1 at ¶¶ 26, 28, 32, 43, 47, 50). Pursuant to the reasoning of the
Colorado Supreme Court in Horodyskyj, Plaintiff has alleged an injury that is inherently
private and, therefore, does not arise out of her employment. Thus, her outrageous
conduct claim is not barred by the CWCA’s exclusive-remedy provisions. Defendant’s
objections to the contrary are overruled.
The Recommendation advised the parties that specific written objections were
due within fourteen days after being served with a copy of the Recommendation. (Doc.
# 37 at 18.) Despite this advisement, Defendants failed to object to the
Recommendation to the extent it concludes that Plaintiff has plausibly pleaded an
outrageous conduct claim. See (id. at 16–17). In the absence of a timely objection, “the
district court may review a [judge’s] report under any standard it deems appropriate.”
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S.
140, 150 (1985)). After reviewing the Recommendation’s findings that relate to the
sufficiency of Plaintiff’s allegations with respect to her outrageous conduct claim, in
addition to applicable portions of the record and relevant legal authority, the Court is
satisfied that the Recommendation is sound and not clearly erroneous or contrary to
law. See Fed. R. Civ. P. 72(a). Accordingly, the Court affirms and adopts the
Recommendation’s findings and conclusions regarding the sufficiency of Plaintiff’s
outrageous conduct allegations and denies the Motion to Dismiss to the extent it seeks
dismissal of such claim.
For the foregoing reasons, it is ORDERED that the September 10, 2020
Recommendation of United States Magistrate Judge (Doc. # 37) is ADOPTED IN PART
AND REJECTED IN PART. The Recommendation is ADOPTED to the extent it
concludes that Plaintiff’s outrageous conduct claim (Claim 7) is not barred by the
Colorado Workers’ Compensation Act and that Plaintiff has plausibly stated an
outrageous conduct claim against Defendants. It is REJECTED to the extent it
recommends that Plaintiff’s aiding and abetting claims against Defendants Bramlage
and Glenn (Claims 4 and 6) should proceed. It is
FURTHER ORDERED that Defendants’ Motion to Dismiss Plaintiff’s Fourth,
Sixth, and Seventh Claims for Relief (Doc. # 14) is GRANTED IN PART AND DENIED
IN PART. The Motion is GRANTED as to Claims 4 and 6; such claims are DISMISSED
WITH PREJUDICE. 4 The Motion is DENIED as to Claim 7.
DATED: March 31, 2021
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
There is no indication in the Complaint, Response to the Motion to Dismiss, or in Plaintiff’s lack
of a response to Defendants’ Objection to the Recommendation, that Defendants Bramlage and
Glenn acted outside of the scope of their employment at any time relevant to this case. In fact,
Plaintiff’s allegations confirm that the individual defendants were acting within the scope of their
employment. Accordingly, the Court finds that amendment of the Complaint with respect to this
claim would be futile. See McKinney v. Okla. Dep't of Human Servs., 925 F.2d 363, 365 (10th
Cir. 1991) (explaining that “dismissal under Rule 12(b)(6) is not reversible error when it is
patently obvious that the plaintiff could not prevail on the facts alleged and allowing [her] an
opportunity to amend [her] complaint would be futile.”) (citation and internal quotation marks
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