IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Chief Judge Wiley Y. Daniel

Civil Action No. 11-cv-02486-WYD-KLM

RICHARD E. GOODWIN,

Plaintiff,

v.

STUDENT MOVERS, INC.,

Defendant.

ORDER

I. INTRODUCTION

THIS MATTER is before the Court on Defendant Student Movers, Inc. (“Student

Movers”) Motion to Dismiss, filed October 28, 2011 [#11]. Plaintiff’s response in

opposition to the motion was filed on November 28, 2011 [#14], and Defendant’s reply

was filed on December 15, 2011 [#17]. For the reasons stated below, the motion to

dismiss is GRANTED.

II. BACKGROUND

In this civil rights action, Plaintiff brings two claims for relief, including claims for

violation of the Age Discrimination in Employment Act (“ADEA”) and outrageous

conduct. In the instant motion, Defendant moves to dismiss only Plaintiff’s outrageous

conduct claim.

As set forth in the Amended Complaint, Plaintiff began working for Defendant

Student Movers, Inc.’s predecessor in June of 1981. Defendant terminated Plaintiff’s

employment on March 8, 2011. At the time of his termination, Plaintiff was fifty-five

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years old, and was working as the manager of Defendant’s warehouse; a position he

held for over fifteen years. Plaintiff alleges that from the date he was hired until his

termination, his job performance was exemplary and he performed all of his job related

responsibilities and obligations without reprimand. Following his termination, his

position was filled by a younger employee. 

According to the Amended Complaint, Defendant articulated four reasons for

Plaintiff’s termination: (1) allowing items to go missing from the warehouse; (2) being

late for work (3) drinking and being intoxicated on the job; and (4) poor management

skills. Plaintiff maintains that all four of these proffered reasons are false, and that he

was “never given notice of the false accusations against him until the day of his

termination.” In addition, Plaintiff alleges that at the same time he was terminated, eight

other protected-class employees were terminated by the Defendant, all of whom were

over forty years of age, and many of them over fifty years of age, and all of whom had

been employed by Defendant an average of twenty years, or more. Plaintiff alleges that

Defendant intentionally decided to terminate elderly employees and replace them with

younger employees.

With respect to his claim for relief for outrageous conduct, Plaintiff incorporates

by reference all of the factual allegations supporting his ADEA discrimination claim, and

further asserts that two of Defendant’s stated reasons for terminating him, that he

allowed items to go missing from the warehouse, and that he was intoxicated on the job,

“go beyond pretext” and “are asserted for the purpose of damaging, or even destroying,

the Plaintiff’s reputation within the industry.” Plaintiff alleges that Defendant acted

recklessly or with the intent to cause him severe emotional distress. 

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Defendant contends that dismissal of Plaintiff’s outrageous conduct claim is

appropriate because the alleged conduct is not outrageous as a matter of law, and

because the allegations supporting the claim are identical to and share a common

nucleus of operative facts with Plaintiff’s ADEA claim. I find, for the reasons stated

below, that the conduct Plaintiff alleges is not outrageous as a matter of law, and that

Plaintiff fails to state a claim for outrageous conduct that is independently cognizable

from his ADEA discrimination claim.

III. ANALYSIS

A. Standard of Review

The Federal Rules of Civil Procedure provide that a defendant may move to

dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.

Civ. P. 12(b)(6). “The court’s function on a Rule 12(b)(6) motion is not to weigh

potential evidence that the parties might present at trial, but to assess whether the

plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be

granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and

quotation marks omitted). “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, 129 S. Ct. 1937, 1949 (2009) (citing Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a

motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. at

1940. If the allegations state a plausible claim for relief, such claim survives the motion

to dismiss. Id. at 1949. “A court reviewing the sufficiency of a complaint presumes all

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of plaintiff’s factual allegations are true and construes them in the light most favorable to

the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). However, “the

tenet that a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions.” Iqbal, 129 S. Ct. at 1949.

 B. Whether Plaintiff Failed to State a Claim Upon Which Relief Can Be

Granted 

1. Whether the Alleged Conduct is not Outrageous as a Matter of Law

To establish a claim for outrageous conduct under Colorado law, a plaintiff must

show that: “(1) the defendant engaged in extreme and outrageous conduct; (2) the

defendant engaged in such conduct recklessly or with the intent of causing the plaintiff 

severe emotional distress; and (3) the defendant’s conduct caused plaintiff to suffer

severe emotional distress.” McCarty v. Kaiser-Hill Co., 15 P.3d 1122, 1126 (Colo. App.

2000). “Although the question whether conduct is outrageous is generally one of fact to

be determined by a jury, it is the initial responsibility of a court to determine whether

reasonable persons could differ on the question.” Id. “The level of outrageousness

required for conduct to create liability for intentional infliction of emotional distress is

extremely high.” Id. “Liability has been found only where the conduct has been 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.” McCarty, 15 P.3d at 1126; see also Coors Brewing Co. v. Floyd, 978 P.2d

663, 666 (Colo. 1999) (en banc) (allegations “that Coors engaged in an extensive

criminal conspiracy involving illegal drugs and money laundering and that Coors fired

[Plaintiff] to scapegoat him for these crimes” was not outrageous as a matter of law); 

Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo. 1988) (the acts must so

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arouse resentment in average members of the community as to lead them to exclaim,

“Outrageous!”). “Proof of the tort of outrageous conduct must consist of either an

extreme act, both in character and degree, or a pattern of conduct from which the

ineluctable conclusion is the infliction of severe mental suffering was calculated or

recklessly and callously inflicted.” Gard v. Teletronics Pacing Systems, Inc., 859 F.

Supp. 1349, 1354 (D. Colo.1994).

Plaintiff’s outrageous conduct claim is based solely on Defendant’s alleged false

statements that Plaintiff was terminated because he “allowed items to go missing from

the warehouse,” and was “intoxicated on the job.” Plaintiff argues that he has stated a

valid claim for outrageous conduct because Defendant’s statements are “intended to

demean him and expose him as a thief and an alcoholic.” The Amended Complaint

does not indicate that Defendant articulated its reasons for Plaintiff’s termination to

anyone other than Plaintiff. However, in his response to the motion to dismiss, Plaintiff

asserts that these statements were also made by the Defendant in its response to

Plaintiff’s EEOC claim. However, allegations of wrongful discharge and defamatory

remarks do not rise to the level of outrageous conduct. See Steinberg v. Thomas, 659

F.Supp. 789, 795-6 (D. Colo. 1987). Plaintiff attempts to distinguish Steinberg, by

speculating that Defendant may have repeated the false statements “to potential future

employers,” that the information was given to the EEOC “in a specific effort to make the

Plaintiff appear to be an unsavory character,” and that “literally hundreds of people have

access to this information and will continue to have it for years to come.” However, 

these assertions are wholly conclusory and unsupported by the allegations in the

Amended Complaint. 

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I find that Plaintiff’s allegations that Defendant falsely stated in its response to

Plaintiff’s EEOC claim that Plaintiff was terminated for “allowing items to go missing

from the warehouse,” and for “being intoxicated on the job,” simply do not reach the

threshold level of conduct necessary to support a claim of extreme and outrageous

conduct. 

2. Whether Plaintiff Has Stated a Claim for Outrageous Conduct That

is Independently Cognizable From His ADEA Claim

In the alternative, I find that Plaintiff has failed to state a claim for outrageous

conduct that is independently cognizable from his ADEA Claim.

A claim for outrageous conduct “consists of discrete elements established in law

to prevent the intentional infliction of mental suffering.” Gard, 859 F. Supp. at 1354.

The tort “contemplates an extreme level of independently ascertainable misconduct

from which the ‘ineluctable conclusion’ is the calculated or reckless infliction of severe

mental suffering.” Visor v. Sprint/United Mgmt. Co., 965 F. Supp. 31, 33 (D. Colo. 1997)

(quoting Gard, 859 F. Supp. at 1354). “It is not meant to be an incantation to augment

damages.” Gard, 859 F. Supp. at 1354. Therefore, “where the allegations forming the

basis of a claim for outrageous conduct are the same as those forming the basis for a

claim of discrimination, and nothing more, they fail to state an independently cognizable

claim for which relief can be granted under rule 12(b)(6).” Visor, 965 F. Supp. at 33;

see also Emerson v. Wembley USA Inc., 433 F. Supp. 2d 1200, 1228 (D. Colo. 2006);

Katz v. City of Aurora, 85 F. Supp. 2d 1012, 1021 (D. Colo. 2000). 

In Visor, employees brought claims under Title VII of the Civil Rights Act of 1964

for employment discrimination and retaliation, and state law claims for breach of

contract, promissory estoppel, and outrageous conduct. Visor, 965 F. Supp. at 33. In

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their complaint, the employees supported their outrageous conduct claim by

incorporating by reference their allegations used to support their employment claims,

followed by the assertions that “‘[d]efendant’s course of conduct . . . was extreme and

outrageous’ and ‘done with the intent of causing the [p]laintiffs severe emotional

distress.’” Id. Because the allegations failed to state a claim for outrageous conduct

that was independently cognizable from the Title VII claims, as required by Colorado

law, the court granted the employer’s motion to dismiss the claim. Id.

In Katz, the plaintiff alleged violations of ADEA, his rights to due process and

equal protection under 42 U.S.C. § 1983, and the tort of intentional infliction of

emotional distress. Katz, 85 F. Supp. 2d at 1016. The plaintiff offered only his

allegations in connection with his discrimination and other claims as support for his

claim for intentional infliction of emotional distress, then conclusively alleged that the

defendant’s conduct was outrageous. Id. at 1021. Because the plaintiff’s complaint

contained no separate factual allegations for the outrageous conduct claim which

differed from the factual allegations supporting his other claims, the court dismissed the

plaintiff’s outrageous conduct claim for failure to state a claim. Id.

Similar to the plaintiffs in Visor and the plaintiff in Katz, the Plaintiff in this case

supports his outrageous conduct claim with the same allegations made in connection

with his ADEA claim. In his Amended Complaint, Plaintiff incorporates all of the 

allegations supporting his ADEA claim, and then concludes that Defendant’s conduct

was done “for the purpose of damaging, or even, or even destroying, the Plaintiff’s

reputation within the industry,” and that Defendant acted “recklessly or with the intent of

causing the Plaintiff severe emotional distress.” Other than these conclusory

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statements, the Amended Complaint contain no factual allegations for the outrageous

conduct claim that are distinct from Plaintiff’s ADEA Discrimination claim. Therefore,

Plaintiff has failed to state an independently cognizable claim for outrageous conduct for

which relief can be granted under Rule 12(b)(6).

IV. CONCLUSION

Based on the foregoing, it is hereby

ORDERED that Defendant’s Motion to Dismiss Plaintiff’s Second Claim filed

October 28, 2011 [#11], is GRANTED, and Plaintiff’s Second Claim for Relief for

Outrageous Conduct is DISMISSED.

Dated: April 2, 2012

BY THE COURT:

s/ Wiley Y. Daniel 

Wiley Y. Daniel

Chief United States District Judge

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