United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix United States Magistrate Judge
matter is before the Court on Defendant's Motion
to Dismiss [#16] (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
Summary of the Case
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”).
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:
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. ¶¶
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(“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.
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.
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.
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.
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.
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.
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.