IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 11-cv-02195-PAB-MEH

MARSHA ATENCIO,

Plaintiff,

v.

KING SOOPERS,

ANN PIERCE,

SCOTT BRINSON,

NASH FORACI, and

CHARLES BIGLEN,

Defendants.

_____________________________________________________________________

ORDER

_____________________________________________________________________

This matter is before the Court on the Motion for Summary Judgment [Docket

No. 17] filed by defendants King Soopers, Ann Pierce, Scott Brinson, Nash Foraci, and

Charles Biglen. The motion is fully briefed and ripe for disposition. 

I. BACKGROUND

Plaintiff Marsha Atencio was employed by defendant King Soopers between

March 24, 1991 and July 7, 2010 as a clerk at the customer service desk of grocery

store number 19 in Denver, Colorado. The terms and conditions of plaintiff’s

employment with King Soopers were governed by a collective bargaining agreement

(“CBA”) between King Soopers and the United Food and Commercial Workers

(“UFCW”) Local 7, a union of which plaintiff is a member. See Docket No. 17-4. 

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In support of their motion for summary judgment, defendants provided

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transcripts of testimony presented during an appeal to the Colorado Industrial Claims

Appeals Office (“ICAO”). See Docket Nos. 17-1, 17-2, 17-3. In her response, plaintiff

has not challenged the authenticity or reliability of the aforementioned transcripts. See

Docket No. 18.

Plaintiff’s reprimands notified her that future cash register shortages or 2

inaccurate transactions would lead to disciplinary action. See, e.g., Docket No. 17-5 at

18 (Atencio Dep. 64:1-5, 65:1-6); id. at 19 (Atencio Dep. 66:23-67:5). 

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On July 7, 2010, Charles Biglen, King Soopers’ lead investigator, asked Nash

Foraci, a King Soopers security investigator, to monitor plaintiff’s cash register for the

duration of her shift. Docket No. 17-1 at 18-19 (Pierce ICAO Hearing 17:26-18:3);

Docket No. 17-2 at 16 (Biglen ICAO Hearing 49:13-14). Mr. Biglen testified that he 1

asked Mr. Foraci to monitor plaintiff’s cash register based on his suspicion that plaintiff

was stealing money from the register. Docket No. 17-2 at 16 (Biglen ICAO Hearing

49:13-14). Mr. Biglen’s belief was formed, in part, on the reported cash register

shortages at store number 19 and the fact that plaintiff had previously received eight

disciplinary notices and been reprimanded for till shortages or inaccurate cash

transactions. Docket No. 17-6.

2

Mr. Foraci monitored plaintiff’s cash register by reviewing security cameras

located inside the store. Docket No. 17-1 at 26 (Foraci ICAO Hearing 25:25-27). He

testified that, at approximately 9:30 a.m., he saw a customer tender a ten dollar bill to

plaintiff as payment. Id. at 27 (Foraci ICAO Hearing 26:13-18). After taking the ten

dollar bill, plaintiff shuffled the money located in the tray for twenty dollar bills and then

provided change from the proper compartments of the cash register. Id. Mr. Foraci

testified that, during this transaction, plaintiff crumpled bills from the twenties drawer

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Specifically, Mr. Biglen said that he saw plaintiff take a ten dollar bill from a 3

customer and then reach into the adjacent pan which contained bills larger than ten

dollars to provide change, while keeping her hand clenched until she released the

contents of her hand into her apron. Docket No. 17-2 at 18 (Biglen ICAO Hearing 51:9-

23). 

The office to which Mr. Brinson took plaintiff was not locked during the time 4

plaintiff was there. Docket No. 17-5 at 11 (Atencio Dep. 37:1-5). 

3

into the palm of her hand and, after giving the customer change, walked to a different

location in the store with her hand clenched in a fist. Id. at 30 (Foraci ICAO Hearing

29:13-25). She then placed her hand in her apron and removed her hand with nothing

in it. Id. Mr. Foraci made a video recording of the security footage and informed Mr.

Biglen of the events he had just witnessed. Id. at 31 (Foraci ICAO Hearing 30:16-17). 

After Mr. Foraci’s telephone call, Mr. Biglen went to store number 19. Docket

No. 17-2 at 16 (Biglen ICAO Hearing 49:27-29). Mr. Biglen watched the security video

and concluded that plaintiff took money from the cash register. Mr. Biglen contacted 3

Anne Pierce, the store manager, and Scott Brinson, the assistant store manager, to

inform them of the suspected theft. Id. at 17 (Biglen ICAO Hearing 50:27). Mr. Biglen

also asked Mr. Brinson to escort plaintiff to the private offices located on the upper level

of the store. Id. at 27 (Biglen ICAO Hearing 60:14-19); Docket No. 17-5 at 9 (Atencio 4

Dep. 26:25-27:8). Once plaintiff was in the private office, Mr. Brinson asked her to

remove the contents of her apron. Docket No. 17-5 at 9 (Atencio Dep. 28:5-12). 

Plaintiff removed two “crinkled up” twenty dollar bills from her apron, Docket No. 17-2 at

27 (Biglen ICAO Hearing 60:27); see also Docket No. 17-8 at 10, and approximately six

dollars from her left front pants pockets. Docket No. 17-5 at 10 (Atencio Dep. 32:16-

20). Mr. Brinson testified that, after counting the contents of plaintiff’s cash register,

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they determined that her register was missing approximately fifty dollars. Docket No.

17-3 at 4 (Brinson ICAO Hearing 71:15-18). Based on his training and experience, Mr.

Biglen testified that he believed that plaintiff had stolen money from the cash register. 

Docket No. 17-2 at 34 (Biglen ICAO Hearing 67:16-23). Ms. Pierce, who reviewed the

video of plaintiff’s transaction, also believed that plaintiff had stolen money from the

cash register. Docket No. 17-1 at 19 (Pierce ICAO Hearing 18:16-18). Pursuant to

King Soopers’ dishonesty policy, Ms. Pierce terminated plaintiff’s employment for theft. 

Id. (Pierce ICAO Hearing 18:12-15); Docket No. 17-9 at 10 (King Soopers’ Handbook).

While plaintiff was still at the store, defendants notified the Denver Police

Department about the incident. Docket No. 17-2 at 32 (Biglen ICAO Hearing 65:3-11).

Two police officers arrived at the store. Id. After reviewing the security video, the

police officers concluded that there was probable cause that a crime had been

committed. They handcuffed plaintiff and took her to the police station. Docket No. 17-

10 (police report); Docket No. 17-5 at 11 (Atencio Dep. 37:14-20). Plaintiff was charged

with theft. Although the matter went to trial, the charges against her were dismissed

before the jury deliberated. Id. at 16 (Atencio Dep. 56:4-7). 

On July 9, 2010, plaintiff initiated a grievance regarding her termination pursuant

to the CBA. See Docket No. 17-12. Plaintiff’s grievance alleged that she did not take

money from the cash register and therefore that King Soopers improperly terminated

her. Docket No. 17-5 at 13 (Atencio Dep. 43:17-25). Pursuant to Article 40 of the CBA,

“no employee who falls within the bargaining unit shall be discharged without good and

sufficient cause.” Docket No.17-4 at 7. Under Article 43 of the CBA, any disputes or

grievances related to an employee’s terms of employment must be resolved through the

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CBA’s three-step grievance process. Id. at 9. Step 1 of the grievance process involves

an informal conference between the union representative, the aggrieved employee, and

the manager of the store. Id. If the grievance is not resolved by the informal

conference, Step 2 requires the aggrieved employee to file a written notice within

twenty days of the date of the event giving rise to the grievance. Id. Ten days after the

employer receives a written notice of the grievance, the employer’s designee and a

union representative must meet in an attempt to resolve the grievance. Id. Step 3

states, in pertinent part, that “[i]f the grievance is not satisfactorily adjusted in Step 2,

either party may, with reasonable promptness, but in no event later than thirty (30) days

from the date of the Step 2 meeting, in writing, request arbitration and the other party

shall be obligated to proceed with arbitration.” Id. The CBA provides that “[a] finding or

award of the arbitrator shall be final and conclusive upon the parties hereto.” Id. at 10. 

King Soopers denied plaintiff’s grievance at both Step 1 and Step 2. Docket No. 17-12

at 2-6. As a result, plaintiff requested resolution of her grievance through arbitration at

Step 3, which was scheduled for November 12, 2012. See Docket No. 18 at 4. 

Meanwhile, on June 29, 2011, plaintiff filed a complaint against defendants in the

District Court for the City and County of Denver, Colorado. Docket No. 2. In her

complaint, plaintiff brought four claims against defendants: (1) wrongful discharge; (2)

false arrest; (3) malicious prosecution; and (4) extreme and outrageous conduct. Id. at

5-6. Defendants were served with plaintiff’s complaint on August 2, 2011 and removed

the case to this Court on August 22, 2011, asserting federal question jurisdiction

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pursuant to 28 U.S.C. § 1331 on the theory that plaintiff’s state law claims “arise” under

federal law. Docket No. 1 at 3. 

On April 30, 2012, defendants filed this motion for summary judgment. Docket

No. 17. Defendants argue that none of plaintiff’s state law claims are independent of

the CBA governing the dispute and, therefore, they are preempted by § 301 of the

Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 et seq. In response,

plaintiff argues that her state law claims are independent of the CBA and, thus, are not

subject to § 301 preemption. Docket No. 18 at 2-3.

II. STANDARD OF REVIEW

Summary judgment is warranted under Federal Rule of Civil Procedure 56 when

the “movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works, Inc. v. City &

Cnty. of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994); see also Ross v. The Bd. of

Regents of the Univ. of N. M., 599 F.3d 1114, 1116 (10th Cir. 2010). A disputed fact is

“material” if under the relevant substantive law it is essential to proper disposition of the

claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001).

Only disputes over material facts can create a genuine issue for trial and

preclude summary judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198

(10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a

reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119

F.3d 837, 839 (10th Cir. 1997). When reviewing a motion for summary judgment, a

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court must view the evidence in the light most favorable to the non-moving party. Id.;

see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010). However, “the nonmoving

party may not rest on its pleadings but must set forth specific facts showing that there is

a genuine issue for trial as to those dispositive matters for which it carries the burden of

proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241

(10th Cir. 1990).

Plaintiff’s response to defendants’ motion for summary judgment does not

comply with Rule 56 of the Federal Rules of Civil Procedure and this Court’s Practice

Standards. See Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact cannot be or

is genuinely disputed must support the assertion by . . . citing to particular parts of

materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations”); Judge Philip A. Brimmer § III.F.3.b.iv. The

Court, however, may not grant a motion for summary judgment simply because the

nonmovant has failed to appropriately respond. See Galvin v. McCarthy, No. 07-cv00885-PAB-BNB, 2009 WL 890717, at *2 (D. Colo. March 31, 2009) (citing Reed v.

Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002)). The Court must apply the usual Rule

56 analysis and consider whether the moving party has met its burden. Id. (citing Reed,

312 F.3d at 1194); see also Fed. R. Civ. P. 56(e)(3) (providing that if the opposing party

does not respond, summary judgment should be entered if “the movant is entitled to it”).

The Court must “accept as true all material facts asserted and properly supported in

[defendants’] summary judgment motion” and grant summary judgment if, based on

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those facts, the moving party is entitled to judgment as a matter of law. Reed, 312 F.3d

at 1195.

III. ANALYSIS

A. Section 301 of the LMRA

Section 301(a) of the LMRA provides: 

Suits for violation of contracts between an employer and a labor

organization representing employees in an industry affecting commerce

as defined in this chapter, or between any such labor organizations, may

be brought in any district court of the United States having jurisdiction of

the parties, without respect to the amount in controversy or without regard

to the citizenship of the parties.

29 U.S.C. § 185(a). Section 301 of the LMRA preempts state law claims if the claims

are based on the rights or duties created by a collective bargaining agreement or if

evaluation of such claims requires interpretation or application of a collective bargaining

agreement. Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987); Mock v. T.G. & Y.

Stores Co., 971 F.2d 522, 529 (10th Cir. 1992). In enacting § 301, Congress

authorized federal courts “to fashion a body of federal common law to be used to

address disputes arising out of labor contracts.” Allis-Chalmers Corp. v. Lueck, 471

U.S. 202, 209 (1985). In Allis-Chalmers, the Supreme Court held that “when [the]

resolution of a state-law claim is substantially dependent upon analysis of the terms of

an agreement made between the parties in a labor contract, that claim must either be

treated as a § 301 claim . . ., or dismissed as pre-empted by federal labor-contract law.” 

471 U.S. at 220 (citation omitted). The Court made it clear, however, that “not every

dispute concerning employment, or tangentially involving a provision of a

collective-bargaining agreement, is pre-empted by § 301 or other provisions of the

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federal labor law.” Id. at 211. Section 301 preempts a state law claim only when an

“evaluation of the tort claim is inextricably intertwined with consideration of the terms of

[a] labor contract.” Id. at 213. 

In Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988), the Supreme

Court elaborated on the Allis-Chalmers test. Id. at 401. Lingle presented the question

of “whether an employee covered by a collective-bargaining agreement that provides

her with a contractual remedy for discharge without just cause may enforce her statelaw remedy for retaliatory discharge.” Id. The Court held that the plaintiff’s retaliatory

discharge claim was not preempted by § 301 because it involved factual questions

about whether the plaintiff was discharged and whether the employer’s motivation was

to interfere with the employee’s exercise of worker’s compensation rights. Id. at 407.

The Court concluded that proving the tort of retaliatory discharge did not require an

examination of the collective bargaining agreement. Id. at 409. Additionally, the Court

emphasized that “the state-law remedy [was] ‘independent’ of the collective-bargaining

agreement in the sense of ‘independent’ that matters for § 301 preemption purposes:

resolution of the state-law claim does not require construing the collective-bargaining

agreement.” Id. at 407. In other words, “even if dispute resolution pursuant to a

collective-bargaining agreement, on the one hand, and state law, on the other, would

require addressing precisely the same set of facts, as long as the state-law claim can

be resolved without interpreting the agreement itself, the claim is ‘independent’ of the

agreement for § 301 pre-emption purposes.” Id. at 409-410. 

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With these principles in mind, the Court will examine each of plaintiff’s state law

claims to determine whether their resolution is “inextricably intertwined” with existing

provisions of the CBA and, as a result, preempted by § 301 of the LMRA. AllisChalmers, 471 U.S. at 213.

B. Wrongful Discharge

Defendants argue that plaintiff’s wrongful discharge claim relies entirely on the

terms of the CBA given that, for plaintiff to prove that she was terminated without just

cause, the Court or fact-finder must interpret the CBA. Docket No. 17 at 7-8. The

Court agrees.

Plaintiff’s claim for wrongful discharge is based on her allegation that she “was

discharged by the defendant after being falsely accused of theft.” Docket No. 2 at 6,

¶ 8. Plaintiff alleges that the CBA “provided that [she] would not be discharged without

good or just cause,” id. at ¶ 7, and that, until she was discharged, she “performed her

part of the contract.” Id. at ¶ 9. Plaintiff’s claim, therefore, asserts that King Soopers

improperly terminated her employment in violation of the CBA. 

Because a determination of whether defendants had just cause necessarily

requires construction of the CBA, plaintiff’s claim is not “independent” of the contract

and is, in fact, “inextricably intertwined” with Article 40 of the CBA. See Garley v.

Sandia Corp., 236 F.3d 1200, 1210 (10th Cir. 2001) (“To the extent that [a] claim is

based on an alleged breach of the CBA, the claim is clearly preempted”). Therefore,

plaintiff’s claim for wrongful discharge is preempted by § 301 of the LMRA. Id. 

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 In Allis-Chalmers, the Supreme Court held that, when § 301 preempts a state

law claim, a court must either dismiss the claim or treat the state law claim as one for

breach of the CBA brought pursuant to § 301. 471 U.S. at 220-21. Under § 301, an

employee can sue in district court for violations of a collective bargaining agreement or

to enforce a binding arbitrator’s award secured under a collective bargaining

agreement. United Food & Commercial Workers, Local Union No. 7R v. Safeway

Stores, Inc., 889 F.2d 940, 944-45 (10th Cir. 1989). “[A]n employee can only sue

[under § 301 of the LMRA] if he or she has exhausted any exclusive grievance

procedures provided in the collective bargaining agreement.” Garvin v. Am. Tel. & Tel.

Co., 174 F.3d 1087, 1093 (10th Cir. 1999). However, exhaustion is excused when (1) it

would be futile; (2) the employer through its conduct has repudiated the grievance

procedure itself; or (3) the union has prevented the employee from utilizing the

grievance process by breaching its duty of fair representation. Id. The Tenth Circuit

noted that the fundamental purpose of exhaustion is to require employees to pursue

their grievances through a bargained for grievance procedure that is part of the

collective bargaining agreement. United Food & Commercial Workers, 889 F.2d at 945. 

Defendants claim that plaintiff failed to exhaust her administrative remedies

because she filed her complaint before having participated in the scheduled arbitration. 

Docket No. 17 at 15. Plaintiff does not respond directly to this claim, but does argue

that the “arbitration process is not designed nor will it deal with plaintiff’s claims of false

arrest, false imprisonment, malicious prosecution and extreme and outrageous

conduct.” Docket No. 18 at 3. Although plaintiff states that her claim for wrongful

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Plaintiff’s claims against individually named defendants also require an 5

interpretation of the CBA and therefore also are preempted by § 301. Cumpston v.

Dyncorp Tech. Servs., Inc., 76 F. App’x 861, 862-63 (10th Cir. 2003); see also Foy v.

Giant Food Inc., 298 F.3d 284, 287, 289 n. 4 (4th Cir. 2002) (holding question of

whether § 301 preempted a state-law tort claim asserted against a co-worker turned,

not on whether he was a signatory to the CBA, but on whether resolution of the claim

required interpretation of the CBA); Int'l Union, United Mine Workers v. Covenant Coal

Corp., 977 F.2d 895, 895-966 (4th Cir. 1992) (holding § 301 preempted state-law claim

against non-signatory employer for tortious interference with a CBA). 

12

discharge was “set for [an arbitration] hearing on November 12, 2012,” id. at 4, neither

party has indicated whether this arbitration took place and, if so, its outcome. However,

because plaintiff is required to complete the grievance procedures before filing suit, the

Court will dismiss plaintiff’s claim for failure to fully exhaust her grievance procedures

under the CBA. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163-64 5

(1983) (finding that, before an employee may bring suit against his employer for breach

of collective bargaining agreement, employee is required to attempt to exhaust any

grievance or arbitration remedies provided in collective bargaining agreement);

Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965) (finding that, as a general

rule, “employees wishing to assert contract grievances must attempt use of the contract

grievance procedure agreed upon by employer and union as the mode of redress”);

Varra v. Dillon Companies, Inc., 615 F.2d 1315, 1317 (10th Cir. 1980); Allis-Chalmers,

471 U.S. at 220 (“[a] rule that permitted an individual to sidestep available grievance

procedures would cause arbitration to lose most of its effectiveness”). 

C. False Arrest

Defendants argue that plaintiff’s claim for false arrest is preempted by § 301 of

the LMRA. Docket No. 17 at 8. Defendants contend that any claim for false arrest

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necessarily relies on a construction of the “Rights of Management” provision of the

CBA. Docket No. 19 at 10. In response, plaintiff asserts that her state law claim for

false arrest is not preempted by § 301 because the “CBA does not have provisions

dealing with employee theft.” Docket No. 18 at 3. 

Under Colorado law, to establish a false arrest claim, a plaintiff must prove the

following elements: (1) the defendants intended to restrict plaintiff’s freedom of

movement; (2) plaintiff’s freedom of movement was restricted for a period of time,

however short, by an act of defendants; and (3) plaintiff was aware that her freedom of

movement was restricted. Goodboe v. Gabriella, 663 P.2d 1051, 1055-56 (Colo. App.

1983) (citing CJI Civ. 21:1 (2d ed. 1980)). A claim for false arrest fails if the defendant

had probable cause to believe that the plaintiff committed a criminal offense. Rose v.

City & Cnty. of Denver, 990 P.2d 1120, 1123 (Colo. App. 1999). 

Defendants rely on Shiflett v. ITO Corp. of Baltimore, 202 F.3d 260, 2000 WL

14214 (4th Cir. Jan. 10, 2000), in arguing that a resolution of plaintiff’s false arrest claim

requires an interpretation of the CBA. However, Shiflett found that the plaintiff’s claims

for false arrest were preempted by § 301 because the CBA in that case had “several

provisions . . . deal[ing] squarely with allegations of employee theft.” See id. at *5.

Shiflett also found that the CBA “explicitly” granted the defendant a certain level of

authority and discretion to deal with theft by an employee. Id. Here, however,

defendants have not identified a provision of the CBA that is explicitly tailored to a

situation regarding employee theft. 

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As will be discussed in Section F infra, because the Court declines to exercise 6

supplemental jurisdiction over plaintiff’s remaining state law claims, the Court will not

address defendants’ state law arguments regarding this claim.

14

The Court finds that resolution of plaintiff’s false arrest claim does not require an

interpretation of the CBA. Each of the aforementioned elements only requires an

analysis of factual questions regarding plaintiff’s and defendants’ conduct and does not

necessitate an interpretation of the terms of the CBA. The question is not whether

defendants, under the circumstances, could detain plaintiff pursuant to the CBA, but

whether they had probable cause to believe that plaintiff had committed a criminal

offense. See Rose, 990 P.2d at 1123; Trimble v. Park Cnty. Bd. of Comm’rs, 242 F.3d

390, 2000 WL 1773239, at *3 (10th Cir. Dec. 4, 2000). The CBA does not define

probable cause; rather, probable cause is defined by state law. The Colorado Supreme

Court has held that probable cause “requires evidence sufficient to induce a person of

ordinary prudence and caution conscientiously to entertain a reasonable belief that

defendant may have committed the crimes charged.” See People v. Treat, 568 P.2d

473, 474-75 (1977); accord People v. Ayala, 770 P.2d 1265, 1267 (Colo. 1989); Estate

of Daramola v. Coastal Mart, Inc., 170 F. App’x 536, 548 (10th Cir. 2006). Accordingly,

because state law provides an independent basis for resolving plaintiff’s false arrest

claim, a determination of whether defendants had probable cause to restrict plaintiff’s

freedom is not “inextricably intertwined” with the CBA and therefore plaintiff’s false

arrest claim is not preempted by § 301. Lingle, 486 U.S. at 410. 

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D. Malicious Prosecution

Defendants argue that resolution of plaintiff’s malicious prosecution claim is

preempted by § 301 of the LMRA because it necessarily requires an interpretation of

the “Rights of Management” provision of the CBA to determine whether defendants’

actions exceeded the bounds, scope, and reasonableness of their authority. Docket

No. 17 at 9; Docket No. 19 at 10. 

In a malicious prosecution action under Colorado law, the burden is on plaintiff to

prove (1) that defendants were parties to or assisted in a prior action against plaintiff;

(2) that the prior action ended in favor of plaintiff; (3) that there was no probable cause

for the prior action; (4) that defendants’ participation in the prior action was motivated

by malice; and (5) that, as a result of the prior action, plaintiff incurred damages.

Sancetta v. Apollo Stereo Music Co., Inc., 616 P.2d 182, 183 (Colo. App. 1980); accord

Hewitt v. Rice, 154 P.3d 408, 411 (Colo. 2007). In addition, when a malicious

prosecution claim is based on criminal charges, “the criminal prosecution must be

disposed of in a way which indicates the innocence of the accused.” Allen v. City of

Aurora, 892 P.2d 333, 335 (Colo. App. 1994). 

Under Colorado law, for purposes of malicious prosecution claims, “[m]alice is

any motive other than a desire to bring an offender to justice” and “may be inferred from

the want of probable cause.” Montgomery Ward & Co. v. Pherson, 272 P.2d 643, 646

(Colo. 1954); see also Barton v. City & Cnty. of Denver, 432 F. Supp. 2d 1178, 1208 (D.

Colo. 2006). Thus, a determination of whether defendants’ actions towards plaintiff

were done with malice does not require a determination of the scope of defendants’

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Because the Court declines to exercise supplemental jurisdiction over plaintiff’s 7

remaining state law claims, the Court will not address defendants’ state law arguments

regarding this claim.

16

rights under the CBA; instead, it requires an inquiry about defendants’ “motive” in

pursuing the alleged theft claim against plaintiff. See Lingle, 486 U.S. at 407 (finding

that because the state law claim looked at “the conduct of the employee and the

conduct and motivation of the employer . . . [n]either of the elements requires a court to

interpret any term of a collective-bargaining agreement”). Because proof of defendants’

subjective motive does not involve an interpretation of the CBA, plaintiff’s malicious

prosecution claim is not preempted by § 301. Id. 

7

E. Extreme and Outrageous Conduct

Defendants argue that plaintiff’s claim for extreme and outrageous conduct is

preempted by § 301 because a determination of whether defendants’ action was

outrageous requires construction of the CBA. Docket No. 17 at 10. 

Plaintiff’s complaint states that “[d]efendants engaged in extreme and

outrageous conduct” and that “[d]efendants did so recklessly and with the intent of

causing the plaintiff severe emotional distress.” Docket No. 2 at 6, ¶ 23-24. According

to these allegations, plaintiff’s claim for extreme and outrageous conduct appears to be

based on defendants’ investigation of her alleged theft. 

Under Colorado law, the elements of outrageous conduct are that (1) defendant

engaged in extreme and outrageous conduct; (2) recklessly or with intent of causing

plaintiff severe emotional distress; and (3) caused the plaintiff severe and emotional

distress. Culpepper v. Pearl Street Bldg., Inc., 877 P.2d 877, 882 (Colo. 1994). 

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“Outrageous conduct” is defined as conduct that is “so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be regarded

as atrocious, and utterly intolerable in a civilized community.” Destefano v. Grabrian,

763 P.2d 275, 286 (Colo. 1988). Although the question of whether conduct is

outrageous is one for the jury, the trial court is initially responsible for determining

whether reasonable persons could differ on the question. Culpepper, 877 P.2d at 883.

The Court finds that a determination of whether defendants’ conduct was

“outrageous” during its investigation of plaintiff’s alleged theft necessarily requires a

construction of what defendants’ rights and obligations were under the CBA as “that is

the reference point against which [defendants’] action must be scrutinized.” See

Steinbach v. Dillon Co., Inc., 253 F.3d 538, 542 (10th Cir. 2001) (citing Garley, 236

F.3d at 1214). Unlike plaintiff’s claim for malicious prosecution, which considered

defendants’ motive, plaintiff’s claim for extreme and outrageous conducts raises the

issue of defendants’ rights and responsibilities under the CBA, i.e., did defendants have

a right under the CBA to investigate plaintiff and was it “outrageous” for defendants to

investigate plaintiff’s alleged theft in the manner they did. Accordingly, whether

defendants were justified in the manner in which they conducted the investigation of

plaintiff’s alleged theft is “inextricably intertwined” with defendants’ authority under the

CBA and therefore is preempted by § 301 of the LMRA. Allis-Chalmers, 471 U.S. at

213; see Mowry v. United Parcel Serv., 415 F.3d 1149, 1157 (10th Cir. 2005) (finding

that intentional infliction of emotional distress claim arising out of termination is

preempted by § 301 because determining whether employer’s conduct was

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Under 28 U.S.C. § 1367(c)(3), the Court has discretion to exercise jurisdiction 8

over pendent state law claims. As a general proposition, “[p]endent jurisdiction is

exercised on a discretionary basis, keeping in mind considerations of judicial economy,

convenience and fairness to the litigants.” Bauchman v. West High School, 132 F.3d

542, 549 (10th Cir. 1997). In the specific context of § 1367(c)(3), however, the Tenth

Circuit has concluded that, “[i]f federal claims are dismissed before trial, leaving only

issues of state law, ‘the federal court should decline the exercise of jurisdiction by

dismissing the case without prejudice.’” Id. (quoting Carnegie-Mellon University v.

Cohill, 484 U.S. 343, 350 (1988)). The reason courts should dismiss such claims is that

“‘[n]otions of comity and federalism demand that a state court try its own lawsuits,

absent compelling reasons to the contrary.’” Brooks v. Gaenzle, 614 F.3d 1213, 1230

(10th Cir. 2010) (quoting Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995)). A court’s

exercise of discretion, it would seem, is limited to determining whether compelling

reasons justify retaining jurisdiction. See Brooks, 614 F.3d at 1229 (reaffirming that

18

“outrageous” required construction of employer’s right and obligations under the CBA). 

Moreover, this claim could not proceed as a breach of contract claim pursuant to § 301

because, as noted above, she failed to completely exhaust the grievance procedures. 

See Garvin, 174 F.3d at 1093. Thus, the Court will dismiss plaintiff’s claim for extreme

and outrageous conduct for failure to exhaust.

F. Jurisdiction Over State Law Claims

Plaintiff originally filed this case in the District Court for the City and County of

Denver, Colorado. Docket No. 2. Defendants removed the case based on preemption. 

See Avco Corp. v. Aero Lodge No. 735, Int’l Assoc. Of Machinists & Aerospace

Workers, 390 U.S. 557, 560 (1968). The Court has now resolved defendants’

arguments regarding preemption, leaving two state law claims in this case. Thus, none

of plaintiff’s remaining claims arise under federal law. Moreover, defendants do not

argue that this Court can exercise diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).

Since all federal issues have been resolved in this action, the Court will decline

to exercise supplemental jurisdiction over plaintiff’s remaining state law claims. See 28 8

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courts have discretion to determine whether to exercise supplemental jurisdiction

pursuant to § 1367(c)(3), but reversing the district court’s grant of summary judgment

on state law claims); Endris v. Sheridan County Police Dep’t, 415 F. App’x 34, 36 (10th

Cir. 2011) (“any state-law claims for assault and battery or mental and emotional injury

were inappropriate subjects for the exercise of pendent jurisdiction where all federal

claims had been dismissed.”).

19

U.S.C. § 1367(c)(3); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-40 (2009)

(noting that a district court’s decision whether to exercise supplemental jurisdiction after

dismissing every claim over which it had original jurisdiction is purely discretionary).

The Court will therefore remand this case. See Thompson v. City of Shawnee, 464 F.

App’x 720, 726 (10th Cir. 2012) (district court has discretion either to remand or dismiss

pendent claims over which it declines to exercise jurisdiction).

IV. CONCLUSION

For the foregoing reasons, it is 

ORDERED that the Motion for Summary Judgment and Incorporated Brief

[Docket No. 17] is GRANTED in part and DENIED in part as indicated in this Order. It

is further

ORDERED that plaintiff Marsha Atencio’s first and fourth claims for relief against

defendants are dismissed without prejudice as preempted by § 301 of the Labor

Management Relations Act, 29 U.S.C. § 185 et seq. It is further 

ORDERED that this case is REMANDED to the District Court for the City and

County of Denver, Colorado, where it was originally filed as Civil Action No. 2011 CV

4619. It is further

Case 1:11-cv-02195-PAB-MEH Document 33 Filed 12/05/12 USDC Colorado Page 19 of 20
20

ORDERED that the Trial Preparation Conference scheduled for December 7,

2012 and the trial set for December 17, 2012 are VACATED. 

DATED December 5, 2012.

BY THE COURT:

 s/Philip A. Brimmer 

PHILIP A. BRIMMER

United States District Judge

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