United States District Court, D. Colorado
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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.
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. ¶¶
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
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.
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.
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 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 ...