Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tesone v. Empire Marketing Strategies

United States District Court, D. Colorado

February 12, 2018




         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.


         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 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.


         “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 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.