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Finley v. Premier Earthworks & Infrastructure, Inc.

United States District Court, D. Colorado

September 27, 2018




         This 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.


         I. Facts

         The 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).

         Plaintiff 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).

         Around 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.

         On 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. Id.

         On 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.

         Plaintiff 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. Id.

         II. Procedural Background

         Plaintiff 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 outrageous conduct.

         Defendants 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.

         LEGAL ...

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