759 P.2d 1336 (Colo. 1988), 86SC183, Churchey v. Adolph Coors Co.

Docket Nº86SC183.
Citation759 P.2d 1336
Opinion JudgeMULLARKEY, Justice.
Party NameDiana K. CHURCHEY, Petitioner, v. ADOLPH COORS COMPANY, Respondent.
AttorneyMarlin W. Burke, Wheat Ridge, for petitioner., Earl K. Madsen, Jim M. Hansen, Bradley, Campbell & Carney, Golden, for respondent. Marlin W. Burke, Wheat Ridge, for petitioner.
Case DateJuly 05, 1988
CourtSupreme Court of Colorado

Page 1336

759 P.2d 1336 (Colo. 1988)

Diana K. CHURCHEY, Petitioner,

v.

ADOLPH COORS COMPANY, Respondent.

No. 86SC183.

Supreme Court of Colorado, En Banc

July 5, 1988

Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 54 F.3d 1548

As Modified on Denial of Rehearing Aug. 8, 1988.

Page 1338

Marlin W. Burke, Wheat Ridge, for petitioner.

Earl K. Madsen, Jim M. Hansen, Bradley, Campbell & Carney, Golden, for respondent.

MULLARKEY, Justice.

The petitioner, Diana K. Churchey, filed a civil action stating three claims for relief against her former employer, Adolph Coors Company: wrongful discharge, defamation, and outrageous conduct. The trial court granted Coors' motions for summary judgment on all claims. The court of appeals affirmed in Churchey v. Adolph Coors Co., 725 P.2d 38 (Colo.Ct.App.1986), and we granted certiorari to review that opinion. We affirm the court of appeals with respect to Churchey's claim for outrageous conduct; we reverse its judgment with respect to the wrongful discharge and defamation claims and remand to the court of appeals with instructions to return the matter to the trial court for further proceedings.

I.

At the time she was fired, Churchey had been employed satisfactorily by Coors for seven years, was an hourly worker in the glass plant, and had no prior history of discipline. She was absent from work because of illness 1 for five consecutive work days--Monday, January 17, 1983, through Friday, January 21, 1983. Coors contends that Churchey was discharged because of "dishonesty," specifically because she "failed and refused to report her medical clearances to return to work for January 19 and 21." Churchey denies that she was dishonest in her dealings with the company.

The following events form the background leading to Churchey's discharge. Churchey became ill with an eye infection during her days off on a weekend. After seeing her physician, she called her supervisor on Sunday and informed him of her condition and her need to be absent from work on Monday, January 17. He asked her to keep him advised. When she saw her physician again on Monday, he referred her to a specialist. After seeing the specialist, Churchey called her supervisor, explained that she had been diagnosed as having conjunctivitis, and requested a leave of absence. He told her to report to the Coors' medical center. On Tuesday, January 18, Churchey reported to the medical center and was examined by a Coors' nurse practitioner who confirmed that she had conjunctivitis and ordered her to return to work on Wednesday. Apparently, Churchey's condition worsened overnight and on Wednesday she was examined by her doctor and two consulting specialists. They diagnosed her as having maxillary sinusitis in addition to conjunctivitis, and told her

Page 1339

not to return to work until the following Monday, January 24.

Early on Wednesday (the first day that Coors asserts that Churchey was dishonest) Churchey called the lead man who was one of her supervisors and asked to be excused from work because of illness. He was unfamiliar with the company leave policy and indicated that he would call her back that day. He contacted her that afternoon and told her to report to the medical center. The record does not disclose the time of the lead man's call, whether he told Churchey she had to go to the medical center that day, or even whether she could have been seen at the medical center that day.

On Thursday morning, Churchey gave her supervisor the form which the nurse practitioner had completed on Tuesday, directing her to return to work on Wednesday. The supervisor placed the form in his letter tray without reading it. Churchey did not inform him verbally that she had been released to return to work on Wednesday. Pursuant to her supervisor's instructions, Churchey then reported to the Coors' medical center. After she was examined, the nurse practitioner excused her from work until the following day, when she was scheduled to see a Coors' physician. That afternoon, her supervisor read the medical release form which Churchey had given him earlier that day. Her supervisors, after consulting with a Coors' personnel specialist, decided to suspend her pay as of the previous day. Churchey was not notified of this decision.

When Churchey saw the Coors' physician on Friday, January 21 (the second day on which she allegedly was dishonest), he signed a Coors' medical treatment request form which Churchey's supervisor had dated January 24. Believing the form authorized her to be absent from work, and unaware that her pay had been suspended, Churchey returned home. When the doctor spoke with her supervisor shortly after she left, he learned that she had been scheduled to work that day. He told the supervisor that Churchey had said she was not scheduled to work until the following Tuesday, January 25. Based on the doctor's statement that Churchey could have worked on Friday, her supervisors met again with a company personnel specialist and they decided to suspend her if she did not come to work by 3:30 p.m. that day. No one informed her of this decision and, relying on the form which the Coors' doctor had signed, she did not report back to work on that Friday.

When she returned to work on her first scheduled work day the following week, Tuesday, January 25, her supervisors met with her, questioned her, and informed her that she was suspended. The next day she was discharged. Churchey requested review by Coors' appeal board, which affirmed her discharge, and she then filed this civil action.

II.

After being served with Churchey's complaint, Coors filed a "motion to dismiss" pursuant to C.R.C.P. 12(b)(1) and 12(b)(5). Because Coors attached affidavits and exhibits to its motion, the court properly treated Coors' motion as one for summary judgment. See C.R.C.P. 12(b); Travelers Ins. Co. v. Savio, 706 P.2d 1258, 1276 (Colo.1985); Enger v. Walker Field, Colo. Pub. Airport Auth., 181 Colo. 253, 256-57, 508 P.2d 1245, 1247 (1973). In response, Churchey filed her own summary judgment motion. The trial court denied Churchey's motion as to all claims, granted Coors' motion for summary judgment on the wrongful discharge claim, and denied Coors' motion with respect to Churchey's claims for defamation and outrageous conduct.

Six months later, Coors moved for summary judgment on the two remaining claims. Churchey opposed this motion but did not file a second summary judgment motion of her own. The trial court granted Coors' motion with respect to both remaining claims--outrageous conduct and defamation.

Because each of Churchey's claims was resolved by summary judgment, we first summarize the principles governing our review of summary judgments. Summary judgment is a drastic remedy and

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is never warranted except on a clear showing that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. E.g., Pueblo W. Metro. Dist. v. Southeastern Colo. Water Conservancy Dist., 689 P.2d 594, 600 (Colo.1984); Ginter v. Palmer & Co., 196 Colo. 203, 205, 585 P.2d 583, 584 (1978); Abrahamsen v. Mountain States Tel. & Tel. Co., 177 Colo. 422, 426, 494 P.2d 1287, 1288 (1972). The moving party has the burden of establishing the lack of a triable factual issue, and all doubts as to the existence of such an issue must be resolved against the moving party. Travelers Ins. Co. v. Savio, 706 P.2d at 1276; Ginter, 196 Colo. at 206, 585 P.2d at 584; Primock v. Hamilton, 168 Colo. 524, 528, 452 P.2d 375, 378 (1969). A party against whom summary judgment is sought is entitled to the benefit of all favorable inferences that may be drawn from the facts. Kaiser Found. Health Plan v. Sharp, 741 P.2d 714, 718 (Colo.1987); Mount Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231, 239 (Colo.1984). The same standards should be applied by an appellate court reviewing a summary judgment order. See generally 6 J. Moore & J. Wicker, Moore's Federal Practice, pt. 2, p 56.27 (2d ed. 1987 & 1987-88 Supp.); 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2716 (2d ed. 1983) ("reviewing court only may determine whether a genuine issue exists and whether the law was applied correctly; it cannot decide disputed issues of material fact." ); Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 489-93 (1984).

As explained above, both Churchey and Coors initially moved for summary judgment. This fact did not decrease either party's burden of proof. When, as here, a trial court is presented with cross-motions for summary judgment, it must consider each motion separately, review the record, and determine whether a genuine dispute as to any fact material to that motion exists. If there are genuine disputes regarding facts material to both motions, the court must deny both motions. See Blocker Exploration Co. v. Frontier Exploration, Inc., 740 P.2d 983, 989 n. 3 (Colo.1987); id. at 992 (Quinn, C.J., dissenting); Morlan v. Durland Trust Co., 127 Colo. 5, 14, 252 P.2d 98, 102 (1952). See generally 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice p 56.13, at 56-174 (2d ed. 1988) ("Good sense and sound theory combine to produce the rule." ); 10A C. Wright, A. Miller & M. Kane, supra, § 2720, at 16-17 ("the fact that both parties simultaneously are arguing that there is no genuine issue of fact does not establish that a trial is unnecessary thereby empowering the court to enter judgment as it sees fit." ) (footnote omitted).

Cross-motions for summary judgment are not an exception to the rule that "the determination whether a genuine issue concerning a material fact exists ... must be decided by the court." 10A C. Wright, A. Miller & M. Kane,...

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