United States District Court, D. Colorado
R. BROOKE JACKSON, UNITED STATES DISTRICT JUDGE
Judge R. Brooke Jackson This matter is before the Court on defendants’ motion to dismiss plaintiff’s first claim for relief [ECF No. 12]. Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1367. For the reasons discussed below, the motion is granted.
This matter arises out of plaintiff Brittany Brown’s claim that she was wrongfully terminated in violation of public policy. ECF No. 1 at ¶ 1. Brown lives in Colorado Springs, Colorado, and she formerly worked for defendant Premier Roofing, LLC (Premier). Id. at ¶ 3. Premier is a roofing company with offices in Colorado Springs and Denver. Id. at ¶¶ 5, 17. Defendant Ben McFerron is the principal owner and operator of Premier. Id. at ¶ 4.
Brown began working as a “Branch Administration and Production Assistant” in September 2013. Id. at ¶ 18. In that capacity, she provided “secretarial support to the branch office manager and the office sales team.” Id. at ¶ 19. Her primary responsibility was “general office work, ” including answering the phones, filing documents, and making appointments. Id. at ¶ 20. She attests that she was an “exemplary employee.” Id. at ¶ 21. Premier recognized Brown as “employee of the month” three times-in November 2013 and July and August 2014. Id. at ¶ 22.
At the beginning of her tenure at Premier, Brown “enjoyed a good working relationship with her supervisor, Josh Vanderhoof.” Id. at ¶ 28. However, in spring 2014 that relationship changed. Id. at ¶ 29. Vanderhoof began to treat Brown poorly, and his actions “became increasingly hostile and abusive.” Id. He would “regularly yell and scream at [her] and berate her in response to her questions.” Id. In one specific instance, Vanderhoof “stormed out of his office and yelled and screamed at  Brown. His tirade ended with him yelling in her face that she needed to learn her place, and that someone needed to put her in her place.” Id. On other occasions, Vanderhoof treated Brown in an “angry and hostile” manner over “minor issues” like ordering office supplies and “asking questions about completing paperwork.” Id. at ¶ 31. Brown explains that Vanderhoof’s “consumption of alcohol during the workday” caused him to treat her this way. Id. at ¶ 32.
On September 8, 2014 Brown emailed two Premier managers-Dan Reddy and Eric Brown (no relation to plaintiff)-with her concerns about Vanderhoof’s “behavior and illegal activity” and his inappropriate treatment of her. Id. at ¶¶ 33-34. Specifically, Brown noted in her email that Vanderhoof was “regularly drinking alcohol during the workday and then driving company vehicles while under the influence of alcohol.” Id. She also described that Vanderhoof “would smoke marijuana during the workday and remain at work or drive company vehicles while under the influence of marijuana.” Id. One week later, Premier fired Brown. Id. at ¶ 35. The day before Premier terminated her, it had named Brown employee of the month for August 2014. Id. at ¶ 36.
Brown filed this suit on July 24, 2015. In addition to her claim for wrongful discharge, she brings a claim for unpaid wages and overtime pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. Id. at ¶ 1. Defendants moved to dismiss Brown’s first claim for wrongful discharge on August 26, 2015. ECF No. 12.
I. Standard of Review.
To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, she has met the threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). Importantly, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted); accord Robbins v. Okla. ex. rel. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (internal citation omitted).
II. Wrongful Termination in Violation of Public Policy.
Brown alleges that she was wrongfully terminated in violation of public policy. ECF No. 1 at ¶ 42. She claims that “Premier terminated [her] employment in retaliation for [her] report of Mr. Vanderhoof’s illegal behavior.” Id. at ¶ 43. Defendants argue that these allegations fail to state a claim for wrongful termination in violation of public policy. ECF No. 12 at 2.
In Colorado, “an employee who is hired for an indefinite period of time is an ‘at will employee, ’ whose employment may be terminated by either party without cause and without notice, and whose termination does not give rise to a cause of action.” Crawford Rehabilitation Services Inc. v. Weissman, 938 P.2d 540, 546 (Colo. 1997). Brown was an at-will employee. However, in Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 104-105 (Colo. 1992), the Colorado Supreme Court recognized a public policy exception to the general at-will presumption. Under this limited exception, an employee will have a cognizable claim for wrongful termination “if the discharge of the employee contravenes a clear mandate of public policy.” Id. at 107 (internal quotations and citations omitted). An employee may state a claim for termination in violation of public policy by alleging that she was employed by the defendant, the defendant fired her, and the defendant discharged her “(1) in retaliation for exercising a job-related right or performing a specific statutory duty, or (2) ...