Bonidy v. Vail Valley Ctr. For Aesthetic Dentistry

• Decision Date: 18 March 2010
• Citation: 232 P.3d 277
• Docket Number: 09CA0602
• Parties: Debbie BONIDY, Plaintiff-Appellant and Cross-Appellee,v.VAIL VALLEY CENTER FOR AESTHETIC DENTISTRY, P.C. and James J. Harding, D.D.S., Defendants-Appellees and Cross-Appellants.
• Court: Colorado Court of Appeals

232 P.3d 277

Debbie BONIDY, Plaintiff-Appellant and Cross-Appellee,v.VAIL VALLEY CENTER FOR AESTHETIC DENTISTRY, P.C. and James J. Harding, D.D.S., Defendants-Appellees and Cross-Appellants.

No. 09CA0602.

Colorado Court of Appeals Div. I.

March 18, 2010.

COPYRIGHT MATERIAL OMITTED

Leavenworth & Karp, P.C., Sander N. Karp, Anna S. Itenberg, Glenwood Springs, CO, for Plaintiff-Appellant and Cross-Appellee.

Stevens, Littman, Biddison, Tharp & Weinberg, LLC, Mark E. Biddison, Boulder, CO, for Defendants-Appellees and Cross-Appellants.

Opinion by Judge TAUBMAN.

Plaintiff, Debbie Bonidy, appeals the aspects of the trial court's judgment calculating her back pay damages and denying her claim for exemplary damages. Defendants, Dr. James J. Harding and Vail Valley Center for Aesthetic Dentistry, P.C. (collectively Dr. Harding), cross-appeal the trial court's denial of a directed verdict and its conclusion that Bonidy was wrongfully terminated in violation of public policy. We affirm in part, reverse in part, and remand for further findings consistent with this opinion.

I. Background

This is the second appeal from a dispute involving the termination of Bonidy from Dr. Harding's dental practice. The first appeal was resolved in Bonidy v. Vail Valley Center for Aesthetic Dentistry, P.C., 186 P.3d 80 (Colo.App.2008) (Bonidy I). Another division of this court concluded in Bonidy I that working conditions violating Colorado Wage Order No. 22 may constitute a violation of public policy and remanded for reinstatement of Bonidy's claim for wrongful termination in violation of public policy and a new trial.

Bonidy worked for Dr. Harding as a dental assistant from October 1998 until she was terminated in August 2004. A year after Bonidy was hired, Dr. Harding implemented an office policy preventing employees from taking meal or rest breaks unless a patient cancelled an appointment. On July 28, 2004, Dr. Harding revised the policy to prevent employees from leaving the office, except to use the restroom, even if a patient cancelled an appointment.

Bonidy's husband immediately contacted an attorney who advised him that the work schedule violated Colorado wage laws. Bonidy's husband then e-mailed Dr. Harding advising him that he believed Bonidy's schedule violated Colorado Wage Law No. 22, sections 7 and 8, promulgated by the Colorado Department of Labor and Employment. Section 7 stated, “[E]mployees shall be entitled to an uninterrupted and ‘duty free’ meal period of at least a thirty-minute duration when the scheduled work shift exceeds five hours.” Section 8 provided, “Every employer should authorize and permit rest periods, which, insofar as practicable, shall be in the middle of each four (4) hour work period. A compensated ten (10) minute rest period for each four (4) hours or major fractions thereof shall be permitted for all employees.”

After returning from vacation on August 10 and reading the email from Bonidy's husband, Dr. Harding fired Bonidy. Bonidy was earning $28 an hour when she was terminated.

Dr. Harding then asked Bonidy to work three additional days, and she agreed. The following day, Dr. Harding discovered that $240 was missing from the office. When Bonidy asked Dr. Harding if he suspected her of the theft, Dr. Harding assured her he did not think she took the money, allowed her to continue working, and permitted her to continue handling money in the office. On Bonidy's last day of employment, August 12, Dr. Harding informed Bonidy that he would pay her for a week of accrued vacation the following week. Instead, Dr. Harding sent Bonidy a letter informing her that, upon further consideration, he did not think a terminated employee was entitled to accrued vacation pay.

Bonidy's counsel sent Dr. Harding a demand letter in October 2008 accusing Dr. Harding of violating Colorado Wage Order No. 22. The day after Dr. Harding received the demand letter, he contacted the police and accused Bonidy of stealing $240 from his office. Dr. Harding did not initially report that he allowed Bonidy to continue working after he fired her or that his office was being remodeled at the time of the theft and multiple people had keys to the office. The trial court found that Dr. Harding's accusation against Bonidy was “retaliatory and vindictive conduct.”

Bonidy searched for new employment after her termination, and then decided to start her own business offering temporary dental assisting and office management services to local dentists in November 2004. She began her business full time in April 2005. Bonidy earned $3,000 from her business from the date she started it until July 2006, the date of the first trial. Bonidy sought back pay damages from the date she was terminated until the date of her first trial.

The first trial ended in a directed verdict for Dr. Harding, and Bonidy appealed. As noted, in Bonidy I, a division of this court remanded the case for a new trial.

In the second trial, the court held Bonidy had been wrongfully terminated in violation of public policy and awarded Bonidy $21,040 in damages. The court concluded that Bonidy was entitled to lost wages in the amount of $17,920, accrued from the date of her termination in July 2004 until she opened her business in November 2004. The court also awarded Bonidy one week of vacation pay in the amount of $1,120 and reimbursement of a health insurance premium in the amount of $2,000. The court did not offset Bonidy's lost wages damages against her business earnings because it concluded her back pay period ended when she began the business. The court denied Bonidy's request for exemplary damages and denied Dr. Harding's motion for a directed verdict.

This appeal by Bonidy and cross-appeal by Dr. Harding followed.

II. Wrongful Termination

We first consider the issues raised by Dr. Harding on cross-appeal because if we were to agree with his contentions, we would not need to address the issues raised in Bonidy's appeal.

Dr. Harding contends the trial court erred in concluding Bonidy established the necessary elements for her claim of wrongful termination in violation of public policy. We disagree.

A. Standard of Review

In a bench trial, “the court shall find the facts specially and state separately its conclusions of law thereon.” C.R.C.P. 52. The rule also provides that the trial court's factual findings may only be set aside if clearly erroneous. “The ultimate test as to the propriety of findings is whether they are sufficiently comprehensive to provide a basis for decision and supported by the evidence.” Mowry v. Jackson, 140 Colo. 197, 202, 343 P.2d 833, 836 (1959) (quoting Maher v. Hendrickson, 188 F.2d 700, 702 (7th Cir.1951)).

B. Sufficiency of Evidence

An employment agreement for an indefinite period of time is presumed to establish an employment at will relationship that either party is free to terminate at any time with or without cause. Slaughter v. John Elway Dodge Southwest/AutoNation, 107 P.3d 1165, 1167-68 (Colo.App.2005). However, a public policy exception allows at-will employees to bring a claim for wrongful discharge if they allege termination as a result of conduct that is protected or encouraged as a matter of public policy. Kearl v. Portage Envtl., Inc., 205 P.3d 496, 498-99 (Colo.App.2008).

The supreme court articulated the elements that constitute a wrongful termination in violation of public policy in Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo.1992). The factors a plaintiff must prove are (1) the employer directed the employee to perform an illegal act as part of the employee's work-related duties or prohibited the employee from performing a public duty or exercising an important job-related right or privilege; (2) the action directed by the employer would violate a specific statute related to public health, safety, or welfare, or would undermine a clearly expressed policy relating to the employee's basic responsibility as a citizen or the employee's right or privilege as a worker; (3) the employee was terminated as the result of refusing to perform the act directed by the employer; and (4) the employer was aware that the employee's refusal to perform the act was based on the employee's reasonable belief that the directed act was unlawful. Id. at 109.

Dr. Harding only contends that Bonidy failed to meet her burden of proof with regard to the third and fourth elements of her wrongful termination in violation of public policy claim. First, Dr. Harding asserts that Bonidy did not refuse to work or object to the schedule and thus her claim fails. We disagree.

We conclude that when an employee objects to performing an act that satisfies the second element of a claim for wrongful termination of public policy and is immediately fired before having an opportunity to refuse to perform the directed act, the refusal element of the Lorenz test is satisfied.

The supreme court has held that a refusal is not limited to a verbal expression of refusal and can consist of inaction. Rocky Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 528 n. 12 (Colo.1996) (defining “refuse” as “to avoid or shun,” “to decline to accept,” or “to show or express a positive unwillingness to do or comply with”). In Hoyt v. Target Stores, 981 P.2d 188, 192 (Colo.App.1998), a division of this court concluded an employee was not required to file a formal complaint with the employer because “[u]nder such circumstances, a formal complaint to [the employer] about its [disputed] policy would have been a futile gesture.” The division also stated, “[W]e are unaware of any decision by the supreme court or any panel of this court holding that the formal filing of such a complaint by an employee is a prerequisite for a claim of wrongful discharge in violation of public policy.” Id.

Other jurisdictions have recognized that an employee can meet the refusal requirement of a wrongful termination claim in ways other than actually refusing to perform the employer's directive. In...