Wagner v. Cher, LLC

          ORDER

          SCOTT T. VARHOLAK UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Background ^[1]

         Plaintiff 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”).^[2][#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]

         In or 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.]

         Once 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]

         Throughout 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.^[3] [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 ¶ 39]

         On 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]

         On 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].

         II. LEGAL STANDARD

         Under 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).

         “To 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).

         III. ANALYSIS

         Plaintiff 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 ...