Borquez v. Robert C. Ozer, P.C., 93CA1805

• Decision Date: 09 November 1995
• Docket Number: No. 93CA1805,93CA1805
• Citation: 923 P.2d 166
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 1415, 11 IER Cases 496 Robert P. BORQUEZ, Plaintiff-Appellee and Cross-Appellant, v. ROBERT C. OZER, P.C. d/b/a Ozer and Mullen, P.C. and Robert C. Ozer, individually, Defendants-Appellants and Cross-Appellees. . I
• Court: Colorado Court of Appeals

Page 166

923 P.2d 166

69 Fair Empl.Prac.Cas. (BNA) 1415, 11 IER Cases 496

Robert P. BORQUEZ, Plaintiff-Appellee and Cross-Appellant, v. ROBERT C. OZER, P.C. d/b/a Ozer and Mullen, P.C. and Robert

C. Ozer, individually, Defendants-Appellants and

Cross-Appellees.

No. 93CA1805.

Colorado Court of Appeals,

Div. I.

Nov. 9, 1995.

Rehearing Denied Dec. 7, 1995.

Certiorari Granted Sept. 16, 1996.

Roger Moore, Denver, Lance E. Isaac, Denver (On the Opening Brief); Collins & Pringle, Dwight L. Pringle, Denver, Robert P. Borquez, Denver, for Plaintiff-Appellee and Cross-Appellant.

Ozer, Sokolow & Ruppert, P.C., Renee C. Ozer, Denver, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge TAUBMAN.

In this action for wrongful discharge based on sexual orientation and invasion of privacy, defendants, Robert C. Ozer, P.C., d/b/a Ozer and Mullen, P.C. (the Ozer law firm) and Robert C. Ozer (Ozer), individually, appeal from the judgment entered upon a jury verdict against them and in favor of plaintiff, Robert Borquez. Borquez cross-appeals from the trial court judgment against him denying his request for attorney fees and costs. As to the issues raised on appeal, we affirm the judgment; as to the issues raised on cross-appeal, we reverse the judgment and remand for further proceedings.

The events surrounding this dispute and presented to the jury indicated the following. Borquez was discharged from his position as an associate with the Ozer law firm within a week after his disclosure to Ozer that he was gay, that his companion was in the hospital, and that his companion had just been diagnosed with Acquired Immune Deficiency Syndrome (AIDS).

Borquez was hired by the Ozer law firm as an associate in May 1990. He did not disclose his sexual orientation to Ozer or to anyone else at the firm. Also, because he was concerned about Ozer's acknowledged dislike of homosexuals, he kept his personal life confidential.

Borquez was well-respected, liked, and performed capably as an attorney with the firm. He was awarded three merit raises in his salary, including one just eleven days before he was fired.

On February 19, 1992, Borquez learned for the first time that his companion had been diagnosed with AIDS. Upset by that news and having been advised by his physician that he should be tested immediately for AIDS, Borquez concluded that he could not represent a client effectively in a deposition that afternoon, nor could he participate in an arbitration hearing the following day.

In an effort to locate another attorney to handle the deposition and the hearing, Borquez discussed the matter with Ozer and disclosed facts about his personal life including his sexual orientation, his homosexual relationship, and his need for immediate AIDS testing. Borquez asked Ozer to keep this information confidential, but Ozer made no reply. However, Ozer agreed to handle the deposition and hearing.

Shortly thereafter, Ozer told his wife, who is another shareholder in the firm, and others of Borquez' disclosures. Within two days, all employees and shareholders in the firm had learned about Borquez' personal life and his need for AIDS testing.

Two days later, Ozer met with Borquez and told him that he had not agreed to keep the disclosures confidential. Ozer also made derogatory comments about people with AIDS.

Five days later, on February 26, Ozer fired Borquez. The reason for the firing was a significant disputed issue at trial, with defendants maintaining that it had been for economic reasons. Those economic reasons stemmed from a pending bankruptcy which had been filed by the Ozer law firm in August 1991.

Indeed, on February 17, 1992, two days before Borquez' disclosure, Ozer had met with his bankruptcy attorney and, according to Ozer, had then decided that, in order to cut costs, Borquez and another lawyer would be laid off. According to Ozer, Borquez was scheduled to be laid off during the month of February. Following Borquez' disclosures, the shareholders of the firm discussed whether to follow through with their plan to discharge Borquez, recognizing that such discharge might result in litigation against the law firm. According to defendants' evidence, faced with the need to pare costs because of the pending bankruptcy, the shareholders decided to follow through with their plan to discharge Borquez.

Borquez then brought this action against defendants, raising inter alia, the two claims at issue here. First, Borquez alleged that his dismissal violated the anti-discrimination provisions of Denver Revised Municipal Code § 28-93(a)(1) (1991) (Denver Ordinance) which, among other things, provides that it shall be a discriminatory practice to discharge an individual based upon sexual orientation.

Second, Borquez alleged that his dismissal violated § 24-34-402.5(1), C.R.S. (1995 Cum.Supp.), which provides, subject to certain exceptions not applicable here, that it shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee because of that employee's engaging in any lawful activity off the premises of the employer during non-working hours. That statute further provides that its provisions may be enforced by a civil suit for damages brought in any district court of competent jurisdiction. Section 24-34-402.5(2)(a), C.R.S. (1995 Cum.Supp.)

Concerned about the uncertain state of the law in this area, the trial court persuaded the parties to litigate the issue of whether Borquez would not have been dismissed but for his sexual orientation and to postpone consideration of the other legal issues that had been raised. Accordingly, the trial court fashioned its own jury instructions, one dealing with discriminatory discharge and corresponding damages for lost wages, and another concerning invasion of privacy, including damages for embarrassment and humiliation. Still another instruction concerned punitive damages.

Based upon these instructions, the jury returned a verdict in favor of Borquez, awarding him $30,841 for lost wages on the wrongful discharge claim, $20,000 for embarrassment and humiliation on the invasion of privacy claim, and $40,000 as exemplary damages. Subsequently, the trial court denied Borquez' requests for costs and attorney fees. This appeal and cross-appeal followed.

I. Basis for Wrongful Discharge Claim

First, defendants contend that the judgment in favor of Borquez for wrongful discharge must be set aside because there is no implied private cause of action under the Denver Ordinance. Because we conclude that the wrongful discharge judgment is supportable as a violation of § 24-34-402.5(1), we need not decide whether there is an implied private cause of action for wrongful discharge under the Denver Ordinance.

It is undisputed that the claim for wrongful discharge presented to the jury was based upon a violation of either the statute or the Denver Ordinance. Defendants do not dispute that a private right of action exists under the statute. In addition, the parties agreed to try Borquez' wrongful discharge claims based upon the statute and the Denver Ordinance as a single claim to determine whether he was discharged because of his sexual orientation. Accordingly, by agreement of the parties, the jury was not instructed separately with respect to § 24-34-402.5(1) and the Denver Ordinance.

In our view, defendants waived the argument that the jury verdict was based solely upon the Denver Ordinance, and not upon § 24-34-402.5, when they agreed to try these two claims together to the jury. Furthermore, the evidence presented at trial supports the conclusion that plaintiffs presented sufficient evidence from which the jury could conclude that the defendants had violated § 24-34-402.5 by discharging Borquez for lawful conduct in which he engaged during his off-work hours.

Next, we reject defendants' assertion that the jury verdict was based upon Borquez' status as a homosexual, rather than upon his conduct and, therefore, that there was no lawful activity in which Borquez was engaged during his off-work hours that could have been the basis for his discharge. The jury was presented with evidence that Ozer particularly objected to Borquez' sexual relationship during his off-work hours.

Specifically, in response to questioning regarding his views of homosexuals, Ozer testified that: "I think there are people who conduct themselves properly and there are people who conduct themselves in ways that I, at least, view as improper." Further, contrary to defendants' argument that the verdict was based upon Borquez' status, Ozer testified: "I understood that [Borquez] was a homosexual man who had been engaged in a sexual relationship with a person diagnosed [with] AIDS. That's what I understood." Thus, that evidence supports the conclusion that defendants discharged Borquez based upon lawful conduct or activity in which he engaged during his off-work hours in violation of § 24-34-402.5.

Accordingly, we affirm the wrongful discharge judgment as supportable based upon a violation of § 24-34-402.5(1).

II. Invasion of Privacy Claim

A. Applicability of Colorado Workers' Compensation Act

As a threshold matter, defendants assert that, because the Colorado Workers' Compensation Act, § 8-40-101, et seq., C.R.S. (1994 Cum.Supp.) provides the exclusive remedy for compensation for an employee for a work-related injury, Borquez' claim for invasion of privacy is barred by the Act. We decline to address this contention.

Issues not properly preserved at trial cannot serve as a basis for appellate review of a judgment. In the absence of unusual circumstances, issues presented in the pleadings but not presented at trial will not serve as a basis of appellate review. Minto v. Lambert, 870 P.2d 572 (Colo.App.1993). To preserve an issue for appeal, a party must make a timely objection which is specific enough to provide the trial court with a meaningful opportunity to correct the error. Se...