United States District Court, D. Colorado
RUTH A. WAGNER, Plaintiff,
CHER, LLC, ELIZABETH EBERLE, and ASHLEY STITCH, Defendants.
T. VARHOLAK UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendants' Motion to
Dismiss Plaintiff's Civil Conspiracy Claim (the
“Motion”), which seeks dismissal of
Plaintiff's civil conspiracy claim against Defendants
Elizabeth Eberle and Ashley Stitch pursuant to Federal Rule
of Civil Procedure 12(b)(6). [#11] The parties have consented
to proceed before the undersigned United States Magistrate
Judge for all proceedings, including entry of a final
judgment. [#7, 8] The Court has considered the Motion and
related briefing, the entire case file, and the applicable
case law, and has determined that oral argument would not
materially assist in the disposition of the instant Motion.
For the following reasons, the Court GRANTS
the Motion and DISMISSES WITHOUT PREJUDICE
Plaintiff's civil conspiracy claim.
Ruth Wagner began her employment with Defendant CHER, LLC
(“CHER”), a manager-managed limited liability
company that provides medical imaging services, in 2015 when
CHER acquired the facility where Plaintiff worked, located at
1819 Denver West Dr., Bldg. 26, Suite. 100, Lakewood,
Colorado (the “Denver West
Facility”).[#1 at ¶¶ 2, 10] In August 2016,
CHER created the trade name Health Imaging at Denver West
(“Denver West”). [Id. at ¶ 10] For
years prior to CHER's acquisition of the Denver West
Facility, Plaintiff had served in a
“virtually-identical position” to that which she
held with CHER after its acquisition of the facility.
[Id. at ¶ 17]
about June 2017, CHER hired Defendant Elizabeth Eberle, who
was in her mid-thirties at the time, as the new “Center
Manager” for Denver West. [Id. at ¶ 14]
According to Plaintiff, soon after Ms. Eberle was hired, she
began exhibiting hostility towards Plaintiff. [Id.
at ¶ 15] Ms. Eberle nit-picked Plaintiff's work and
upbraided her in front of other CHER employees and patients.
[Id. at ¶ 16] Plaintiff trained Defendant
Ashley Stitch, who was in her twenties, when Ms. Stitch
started at Denver West. [Id. at ¶ 18] During
her time training at Denver West, Ms. Stitch developed a
close relationship with Ms. Eberle. [Id. at ¶
19] Ms. Eberle and Ms. Stich bonded over being “gym
rats, ” started training together, and socialized
otherwise outside of work. [Id. at ¶¶ 19,
36] Ms. Eberle and Ms. Stitch spent a lot of time together
and discussed their workouts at work. [Id. at ¶
19] Ms. Eberle and Ms. Stitch teased Plaintiff about being
“old” and “out of shape.”
[Id. at ¶ 21] Plaintiff once overheard Ms.
Stitch ask Ms. Eberle if she would have enough energy to work
out after work, and Ms. Eberle responded, “What do you
think, I'm not 60 years old?” [Id. at 20]
Plaintiff was 60 years old at the time. [Id.]
Ms. Stitch's training at Denver West was complete, she
was transferred to a different CHER location. [Id.
at ¶ 18] According to the Complaint, Ms. Eberle and Ms.
Stitch “agreed that they would like to work
together” at Denver West. [Id. at ¶ 37]
Ms. Eberle and Ms. Stitch thus “agreed by words and
conduct that [Ms.] Eberle would terminate [Plaintiff] and
bring [Ms.] Stitch back to the Denver West location so they
could work together.” [Id. at ¶ 38]
her 14-year tenure working at the Denver West Facility,
Plaintiff received excellent performance reviews and had
never received even a mild reprimand, much less a written job
action. [Id. at ¶¶ 17, 22] This changed on
October 2, 2017, when Plaintiff received a “pretextual
verbal reprimand” from Ms. Eberle for a purported
violation of the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”), which
prohibits unauthorized disclosures or misuse of protected
health information. [Id. at ¶ 22] Ms. Eberle,
however, did not indicate that Plaintiff's job was in
jeopardy when she delivered the verbal reprimand.
[Id.] According to Plaintiff, Ms. Eberle did not
“write up” a younger employee for a serious HIPAA
violation. [Id. at ¶ 23] The Complaint further
alleges that Ms. Eberle raised pretextual allegations that
Plaintiff was performing poorly and gave Plaintiff a poor
performance review on October 2, 2017. [Id. at
November 27, 2017, Ms. Eberle, acting on behalf of CHER,
terminated Plaintiff's employment. [Id. at
¶ 24] At the time of her termination, Plaintiff held the
title of Patient Services Representative Lead and, at 60
years old, was the oldest employee at Denver West.
[Id. at ¶¶ 1, 13] After Plaintiff's
termination, Ms. Stitch was brought back to Denver West to
replace Plaintiff as Patient Services Representative Lead.
[Id. at ¶ 27] According to the Complaint,
“CHER did not follow its progressive discipline policy
[with respect to Plaintiff's termination] because it
reasonably relied on [Ms.] Eberle's judgement as its
Center Manager.” [Id. at ¶ 25] Plaintiff
contends that Ms. Eberle and Ms. Stitch “recklessly
caused CHER to violate its progressive disciplinary
policy” by conspiring to terminate Plaintiff and
misrepresenting her level of competence, dedication, and
performance. [Id. at ¶ 28]
April 28, 2018, Plaintiff filed this lawsuit against CHER,
Ms. Eberle, and Ms. Stitch. [#1] Plaintiff's Complaint
asserts two claims for relief: (1) age discrimination in
violation of the Age Discrimination in Employment Act of 1967
(“ADEA”) against CHER, and (2) a state law civil
conspiracy claim against Ms. Eberle and Ms. Stitch.
[Id. at ¶¶ 29-42] On July 2, 2018,
Defendants filed the instant Motion seeking to dismiss the
civil conspiracy claim. [#11] Plaintiff has responded to the
Motion (the “Response”) [#18], and Defendants
have replied (the “Reply”) [#19].
Federal Rule of Civil Procedure 12(b)(6), a court may dismiss
a complaint for “failure to state a claim upon which
relief can be granted.” In deciding a motion under Rule
12(b)(6), a court must “accept as true all well-pleaded
factual allegations . . . and view these allegations in the
light most favorable to the plaintiff.” Casanova v.
Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010)
(alteration in original) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)).
Nonetheless, a plaintiff may not rely on mere labels or
conclusions, “and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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
Twombly, 550 U.S. at 570). 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.'” Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (quoting Twombly, 550
U.S. at 570). “The burden is on the plaintiff to frame
a ‘complaint with enough factual matter (taken as true)
to suggest' that he or she is entitled to relief.”
Id. (quoting Twombly, 550 U.S. at 556). The
ultimate duty of the court is to “determine whether the
complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief
under the legal theory proposed.” Forest Guardians
v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
alleges that Ms. Eberle and Ms. Stitch conspired to terminate
Plaintiff so that they could work together. [#1 at
¶¶ 34-42] Defendants raise two arguments in support
of their motion to dismiss Plaintiff's civil conspiracy
claim. First, Defendants argue that Plaintiff's civil
conspiracy claim is preempted by the ADEA. [#11 at 3-4]
Second, Defendants contend that, even if Plaintiff's
civil conspiracy claim was not preempted, Plaintiff has
failed to ...