Mares v. ConAgra Poultry Co., Inc.

• Decision Date: 17 July 1992
• Docket Number: No. 91-1288,91-1288
• Parties: , 122 Lab.Cas. P 57,030, 7 IER Cases 997 Carmela MARES, Plaintiff-Appellant, v. CONAGRA POULTRY COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 492

971 F.2d 492

61 USLW 2111, 122 Lab.Cas. P 57,030,

7 IER Cases 997

Carmela MARES, Plaintiff-Appellant, v. CONAGRA POULTRY COMPANY, INC., Defendant-Appellee.

No. 91-1288.

United States Court of Appeals, Tenth Circuit.

July 17, 1992.

Gilbert M. Roman (Darold W. Killmer, with him on the brief), of Feiger, Collison & Killmer, Denver, Colo., for plaintiff-appellant.

Judith A. Biggs (John M. Husband, with her on the brief), of Holland & Hart, Denver, Colo., for defendant-appellee.

Before TACHA and KELLY, Circuit Judges, and CONWAY, District Judge. ^*

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-Appellant, Carmela Mares (Mares), filed this action, which was removed to federal district court, requesting actual, compensatory and punitive damages against Defendant-Appellee, ConAgra Poultry Company, Inc. (ConAgra) for wrongfully terminating her employment following her refusal to fill out a form dealing with drug usage. Mares pled several alternate theories, including invasion of privacy, to recover for her alleged wrongful discharge. ¹ The district court granted ConAgra's summary judgment motion and dismissed all of Mares' claims. Mares v. ConAgra Poultry Company, Inc., 773 F.Supp. 248 (D.Colo.1991). Mares appeals only from that portion of the district court's order dismissing Count V, the state-law claim for invasion of privacy. Mares also has moved to certify a question concerning the scope of Colorado invasion of privacy law in the private employment context. See 10th Cir.R. 27.1; Colo.App.R. 21.1. Our jurisdiction arises under 28 U.S.C. § 1291. We decline to certify the question to the Colorado Supreme Court and affirm the judgment of the federal district court.

Background

ConAgra, in implementing its drug testing policy, required that each employee complete a "Prescription Drugs and Over-the-Counter Medication Form." The form requested disclosure of the following information: (1) names of any drugs or medications utilized, (2) dosages, (3) name(s) of prescribing physician, (4) nature of illness for which such drug was being taken, (5) any expected side effects from the use of such drug, (6) the length of time the employee expected to be taking the drug or medication, and (7) the name of any attending physician if different from the prescribing physician. The form also authorized the employee's physician to release information to ConAgra concerning use of any disclosed medication. The form was marked "confidential" and was to be retained in a file cabinet under lock and key, according to an affidavit supporting ConAgra's summary judgment motion. Another affidavit submitted by ConAgra indicated that the purpose of the form was "to assure the accuracy of drug test results and

                to provide employees with an opportunity to explain a positive test result."   Mares, who stated that she did not object to drug testing per se, refused to complete the form or to submit to a drug test.   When she declined to reconsider her refusal, she was terminated
                

Discussion

Mares appeals from the grant of summary judgment. Our review is de novo and we apply the same legal standard used by the district court in evaluating the summary judgment motion, namely Fed.R.Civ.P. 56(c). Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We view the evidence and draw any inferences in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence which would require submission of the case to a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991).

Concerning the burden of proof, a movant need only point to those portions of the record which demonstrate an absence of a genuine issue of material fact given the relevant substantive law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Where, as here, the nonmoving party will bear the burden of proof at trial, "Rule 56(e) ... [then] requires the nonmoving party to go beyond the pleadings and by her own affidavits or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Id. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)). If a movant establishes entitlement to judgment as a matter of law given uncontroverted, operative facts contained in the documentary evidence, summary judgment will lie. See Anderson, 477 U.S. at 251, 106 S.Ct. at 2511. There simply is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553.

Concerning the quantum of proof attendant to summary judgment, it is the same as that required for a directed verdict in the case. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. "[W]e are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits." Id. at 252, 106 S.Ct. at 2512. Thus, in the normal civil case, a judge must ask, based on the record and after considering who has the burden of proof, "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Id. ² "In reviewing the grant of summary judgment in a suit based on diversity jurisdiction, we apply the law of the forum." Skidmore, Owings & Merrill v. Canada Life Assurance Co., 907 F.2d 1026, 1027 (10th Cir.1990). Thus, Colorado provides the substantive law to be applied. We "review de novo a district court's determination of state law." Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).

Colorado is an "at will employment" jurisdiction. See Continental Airlines v. Keenan, 731 P.2d 708, 711 (Colo.1987). See also Freidman & Son, Inc. v. Safeway Stores, 712 P.2d 1128, 1131 (Colo.App.1985). That is, in the absence of an employment agreement, either the employer or the employee can terminate the employment relationship at will. Justice v. Stanley Aviation Corp., 35 Colo.App. 1, 530 P.2d 984, 986 (1974). The presumption of an at will employment relationship is not absolute, however, and there may be situations where discharge may be wrongful and thus actionable. See, e.g., Continental Airlines, 731 P.2d at 711-12 (employee may be able to enforce termination procedure in an employee manual either on a bilateral contract or promissory estoppel theory); Cronk v. Intermountain Rural Elec. Coop., 765 P.2d 619 (Colo.App.1988) (if discharge resulted from employee's exercising a specifically enacted right or duty, the general "at will" rule does not apply). But under the facts of this case, Mares has not cited, nor has our research disclosed, any authority which would suggest that Colorado would create an exception to the employment at will doctrine based on an employer's mere request for medical information pursuant to a drug testing policy.

Mares argues that Colorado search and seizure decisions evidence the fact that the Colorado courts are inclined toward broader search and seizure protection than the United States Supreme Court. See, e.g., People v. Hillman, 821 P.2d 884 (Colo.App.1991) (under Colorado Constitution, garbage placed for curbside collection may be the subject of a reasonable expectation of privacy), cert. granted, (Colo. Jan. 13, 1992); People v. Oates, 698 P.2d 811 (Colo.1985) (under Colorado Constitution, beeper placed inside a drum of chemicals constitutes a search). Yet, Mares concedes that the search and seizure decisions of the Colorado Supreme Court, or for that matter, of the United States Supreme Court, are not applicable in the absence of any state action. It is uncontroverted that ConAgra is a private employer.

The latest case on which Mares relies, Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo.1992), reiterates that Colorado adheres to the "at will employment" doctrine, subject to a public policy exception. In that case, the plaintiff alleged that he was terminated for refusing to communicate false and misleading statements to the that a claim for wrongful discharge under the public policy exception to the at will employment doctrine is cognizable in Colorado and that, in order to withstand a directed verdict on a claim for wrongful discharge based on an employee's refusal to perform an illegal act, the employee must establish, in addition to the elements outlined in Cronk, that the employer had actual or constructive knowledge that the employee's refusal to perform the was act based on the employee's reasonable belief that the act directed by the employer was unlawful.

                government on behalf of his private employer.   The Colorado Supreme Court held
                

Lorenz, 823 P.2d at 102. As noted above, Mares never contended that she was being asked to perform an illegal act and stresses that she is not complaining about the drug testing. In fact, she would have submitted to the drug tests, but for the form. Thus, her objection focuses entirely on the form she was asked to complete.

Mares contends that ConAgra's request for medication information constitutes an invasion of privacy, a tort recognized in Colorado. See Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 755 (1970); Wells v. Premier Indus. Corp., 691 P.2d 765, 768 (Colo.App.1984); Restatement (Second) of Torts § 652A(2). Mares contends that the Colorado Supreme Court has established its own elements for the invasion of privacy and...