United States District Court, D. Colorado
MICHAEL E. HEGARTY UNITED STATES MAGISTRATE JUDGE.
case arises out of Plaintiff Joshua Finley's employment
with, and termination by, Premier Earthworks &
Infrastructure, Inc. (“PEI”). One relevant issue
is the conduct of supervisor Eric McCoy toward Plaintiff and
others while still employed, and PEI's failure to take
any disciplinary action against Mr. McCoy. Before the Court
is Defendants' Rule 12(b)(6) Partial Motion to Dismiss
Plaintiff's Claim for Outrageous Conduct, ECF No. 15. For
the reasons that follow, I grant the motion
and dismiss the outrageous conduct claim with prejudice.
following are factual allegations made by Plaintiff in his
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).
was employed by PEI as a mechanic from August 2016 until he
was discharged on or around March 2, 2017. Compl. ¶ 13.
From the start of his employment with PEI, Plaintiff was
subjected to discriminatory comments, including but not
limited to, crude and vulgar language by Mr. McCoy.
Id. ¶¶ 15-16. A
“non-exhaustive” list of Mr. McCoy's language
includes: calling Plaintiff and other men “pussies,
” making statements that he was going up to the
corporate office to give the girls “shots of Vitamin E,
” and asserting that another co-worker had
different-sized forearms because he was pleasuring himself
often. Id. ¶ 15(a-c). Mr. McCoy also frequently
made references to his own penis, generally claiming he was
“well endowed.” Id. ¶ 16. A
“non-exhaustive” list of Mr. McCoy's
references includes: statements that other men could not
measure up to his strength or toughness, that the men's
urinal needed to be low to the ground so he could use it
without bumping his large penis, and that his pants would not
stay zipped because of his penis size. Id. ¶
16(a-c). Mr. McCoy also raised his leg onto work benches to
point to his penis and to try to get Plaintiff and other
employees to look at Mr. McCoy's penis through his pants.
Id. ¶ 16(d).
mid-February 2017, Plaintiff told Mr. McCoy that he had an
emergency doctor's appointment and needed to work shorter
hours that day. Id. ¶ 17. Mr. McCoy proceeded
to call Plaintiff a “pussy” and told him to
“get over it.” Id. The following day,
Plaintiff reminded Mr. McCoy of the appointment and, in front
of other employees, Mr. McCoy said, “[Y]ou're not
going to a doctor's appointment, you're going home to
go play with yourself.” Id. ¶ 18.
February 21, 2017, Plaintiff reported Mr. McCoy's
inappropriate conduct and harassment to Thelma Llanas in the
human resources department and provided a written statement.
Id. ¶ 19. On February 23, Plaintiff was
summoned to attend an in-person meeting to discuss his
complaint regarding Mr. McCoy's conduct. Id.
¶ 20. In that meeting he was told that he would not be
retaliated against for providing truthful information.
February 28, 2017, Mr. McCoy completely stopped talking to
Plaintiff. Id. ¶ 21. Plaintiff's work hours
were shortened from ten hours to eight and a half hours.
Id. That same day Plaintiff received an email
indicating that the investigation should be completed by the
end of the week. Id. ¶ 22. On March 1,
Plaintiff questioned the reduction of his work hours, with no
response from PEI. Id. ¶ 23. PEI terminated him
the next day. Id. ¶ 24.
filed a dual claim with the Colorado Civil Rights Division
and the Equal Employment Opportunity Commission for
retaliation and gender discrimination on or around June 5,
2017. Id. ¶ 10. Plaintiff was issued a Notice
of Right to Sue for both charges in early January 2018.
initiated this lawsuit on April 2, 2018. Compl. and Jury
Demand, ECF No. 1. Plaintiff's Complaint contained seven
claims against PEI and Mr. McCoy. This includes four claims
for discrimination, harassment, retaliation, and gender
discrimination in violation of Plaintiff's civil rights
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e- to 2000e-17 (“Title VII”),
and the Colorado Anti-Discrimination Act
(“CADA”), C.R.S. §§-24-34-401 to
24-34-805. The three remaining claims are common law tort
claims for negligent retention, negligent supervision, and
filed this motion on June 4, 2018 to dismiss Plaintiff's
claim for outrageous conduct. ECF No. 15. Plaintiff responded
on June 25, 2018. ECF No. 19. Defendants then filed a reply
in support of their motion on July 9, 2018. ECF No. 21.