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Murphy v. Lowes Companies, Inc.

United States District Court, D. Colorado

June 4, 2018



          Kristen L. Mix United States Magistrate Judge

         This matter is before the Court on Defendant's Motion to Dismiss [#16][1] (the “Motion”). Plaintiff filed a Response [#17] in opposition to the Motion [#16], and Defendant filed a Reply [#27]. Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.L CivR 72.1(c), the Motion [#16] has been referred to the undersigned for recommendation. See [#26]. The Court has reviewed the Motion, Response, Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#16] be GRANTED.

         I. Summary of the Case

         This lawsuit was filed on July 14, 2017. Compl. [#1]. Plaintiff asserted five claims for relief but the only claim at issue in the Motion is the claim for intentional infliction of emotional distress (“IIED”). Motion [#16].

         The Court construes all of the allegations of the complaint in favor of Plaintiff, the non-moving party. Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). These allegations are as follows:

         During April 2015, Plaintiff was hired by Defendant for the position of Project Specialist Interiors (“PSI”) for Defendant's Greeley store. Am. Compl. [#14] ¶ 4. However, the start date of the PSI position was delayed so Plaintiff was hired on temporarily to the Garden Center of the Greeley store. Id. Plaintiff performed duties for the Garden Center until she officially began work as a PSI in the middle of July. Id. ¶¶ 9-10.

         While working in the Garden Center, Plaintiff suffered a heart attack after moving a self-powered pallet jack loaded with hundreds of pounds of materials. Id. ¶¶ 11, 17. After recovering from her heart attack, Plaintiff inquired about her health insurance and was subsequently told that she was not yet covered because the PSI Program had not yet started. Id. ¶ 19. In order to pay her mortgage and medical expenses, Plaintiff applied for an emergency grant from Lowe's with assistance from her superior, Florinda Romero[2](“Romero”). Id. ¶ 20. Ms. Romero did not file the application for several weeks and when she did she filled it out incorrectly. Id. ¶ 23. Ms. Romero then filed a new application that was approved and payment was issued to Plaintiff within forty-eight hours. Id.

         In July 2015, Plaintiff began performing the duties of a PSI; however, Plaintiff was still paid an hourly rate and not compensated for mileage. Id. ¶ 25. After complaining about back pay, the relationship between Plaintiff and Ms. Romero soured. Id. ¶ 26. Ms. Romero and the in-store manager, Sean O'Brien (“O'Brien”), became hostile toward Plaintiff and referred to Plaintiff as the “garden waterer.” Id. ¶ 27. In late 2015, Plaintiff was accused of stealing commissions. Id. ¶ 29. Mr. O'Brien and Ms. Romero told the other employees about the investigation but never told the other employees when the investigation had concluded and that Plaintiff was cleared. Id. ¶¶ 31-32.

         Later, Mr. O'Brien began to brag to the employees about how much money Plaintiff was making for the store, which stirred resentment in the employees toward Plaintiff. Id. ¶ 33. To quell the employees' resentment, Mr. O'Brien suggested that Plaintiff buy the other employees gift cards and lunch. Id. ¶¶ 35, 39.

         Eventually, Lee Ann Kimbrell (“Kimbrell”), the regional manager, began having Plaintiff train other employees for open PSI positions even though doing so was not in Plaintiff's job description. Id. ¶ 44. During this time, Plaintiff underwent a performance review and scored exceptionally well but only received a $0.17-per-hour raise, while other employees were given $1.00-per-hour or $2.00-per-hour raises. Id. ¶¶ 49-51. Plaintiff raised her concerns about the pay discrepancies with Mr. O'Brien and Ms. Romero but was met with more hostility and was told, “You should be happy with your commissions.” Id. ¶ 52.

         By 2016, Plaintiff was managing thirty projects and was working at two other Lowe's locations, which caused Plaintiff to have to work seven days a week and at one point 148 days straight. Id. ¶¶ 54-55, 66. Around this time a new assistant store manager was hired, Jason Krier (“Krier”). Id. ¶ 62. Mr. Krier continued the hostility toward Plaintiff by stating that she should not be making more money than him and by stating that Plaintiff had “Resting Bitch Face.” Id. ¶¶ 63-64.

         Throughout her time at Lowe's, Plaintiff complained about her co-workers refusing to perform their duties when they were supposed to assist her. Id. ¶ 69. One time, Plaintiff learned of a co-worker allowing builders to perform work even though they had not received the proper building permits. Id. ¶ 73. When Plaintiff raised her concerns about this incident and other incidents concerning contractors to Ms. Kimbrell, Ms. Romero, and Mr. O'Brien, she was told not to worry about it or was ignored. Id. ¶¶ 73-74, 81-82. Plaintiff's struggles with the employees and managers led her to request a transfer on multiple occasions, which she was denied each time. Id. ¶ 57.

         On one occasion Plaintiff was written up for a bad attitude after assisting a customer who could not get assistance from other Lowe's employees. Id. ¶¶ 85-86. Plaintiff's dealings with Lowe's culminated in her again being accused of stealing commissions. Id. ¶ 95. Plaintiff was held in a room against her will for several hours. Id. ¶¶ 96. Plaintiff was prevented from leaving the room by threats of being fired or arrested. Id. ¶¶ 98, 103. In order to leave the room Plaintiff was told that she had to sign a document which stated that she stole commissions. Id. ¶ 109. However, Plaintiff was not allowed to read the document. Id. ¶113. Mr. O'Brien later came into the room and told Plaintiff she was fired and handed her $2, 007 in cash. Id. ¶ 115. Plaintiff was then instructed to sign a document which was supposedly a receipt for the cash. Id. ¶ 118. After more than two hours in the room, Plaintiff eventually signed the document and was then escorted out through the store. Id. ¶¶ 119-120. According to Plaintiff, the firing process and the embarrassment of having her co-workers witness her being escorted out of the store caused her to “break down emotionally.” Id. ¶ 123.

         II. ...

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