Brooke v. Restaurant Services, Inc.

• Decision Date: 25 September 1995
• Citation: 906 P.2d 66
• Docket Number: 94SC312
• Parties: 66 Empl. Prac. Dec. P 43,724, 64 USLW 2214 Ramona L. BROOKE, Petitioner, v. RESTAURANT SERVICES, INC., a Colorado corporation, and Dean C. Peterson, Respondents.
• Court: Colorado Supreme Court

Page 66

906 P.2d 66

66 Empl. Prac. Dec. P 43,724, 64 USLW 2214

Ramona L. BROOKE, Petitioner, v. RESTAURANT SERVICES, INC., a Colorado corporation, and Dean C. Peterson, Respondents.

No. 94SC312.

Supreme Court of Colorado En Banc.

Sept. 25, 1995.

Ronald E. Gregson, Hugh S. Pixler, Gregson Law Offices, P.C., Denver, for Petitioner.

Dean C. Peterson, Denver, pro se.

Anne T. Sulton, Englewood, for Amicus Curiae Denver NAACP.

Carmen S. Danielson, Boulder, Nora V. Kelly, Denver, for Amici Curiae Colorado Women's Bar Association and Boulder Women's Bar Association.

Barry D. Roseman, Denver, for Amicus Curiae Employment Lawyers Association.

Gilbert M. Roman, Roman & Benezra, L.L.C., Denver, for Amicus Curiae Colorado Hispanic Bar Association.

MULLARKEY, Justice, delivered the Opinion of the Court.

Petitioner, Ramona Brooke (Brooke), requests certiorari review of the court of appeals' decision in Brooke v. Restaurant Services, Inc., 881 P.2d 409 (Colo.App.1994). In Brooke, the court of appeals affirmed the trial court's grant of summary judgment in favor of the respondents, Restaurant Services, Inc. (Restaurant Services) and Dean Peterson (Peterson), president and principal stockholder of Restaurant Services, on Brooke's tort claims arising from her conditions of employment and her subsequent termination from employment. We reverse the judgment of the court of appeals and hold that (1) the Colorado Anti-discrimination Act (the Act), sections 24-34-301, et seq., 10A C.R.S. (1988), is not the exclusive remedy for employment-related sex discrimination; and (2) the Act does not require Brooke to exhaust administrative remedies before filing her claim in state district court.

I.

Restaurant Services hired Brooke in July 1987, as a manager of the Simms Landing restaurant. In early February 1990, she was transferred to manage another restaurant, the Off Bellview Grill, and remained there until she was dismissed in May 1992. During her tenure with Restaurant Services, Brooke alleges that Peterson paid her a lower salary than he paid male managers and that he delayed payment of Brooke's bonuses while paying bonuses to male managers when due. She also alleges that he derided the management ability of women and that he instructed Brooke to hire exclusively female food servers because they were cheaper to employ than their male counterparts and "too dumb to steal." Finally, Brooke alleges that in May 1992, Peterson fired her because she refused to fire a male server on the basis of his sex.

After her termination, Brooke filed a complaint with the federal Equal Employment Opportunity Commission (EEOC) which automatically operated as a joint filing with the Colorado Civil Rights Commission (CCRC). A month later, in June 1992, she filed a complaint in district court. In October 1992, she received a notice of right to sue from the EEOC and filed suit in federal court based on Title VII of the 1964 Civil Rights Act.

In her complaint filed in the state district court, Brooke asserted three claims. First, she alleged that Restaurant Services and Peterson wrongfully discharged her in violation of public policy. Her second claim was that Peterson tortiously interfered with her employment by Restaurant Services. Finally, she alleged outrageous conduct by both defendants. The trial court dismissed Brooke's wrongful discharge claim and her outrageous conduct claim. Then, after trial began, the trial judge granted summary judgment to Peterson and Restaurant Services on Brooke's tortious interference claim.

On appeal, Brooke contested only the grant of summary judgment on her tortious interference claim. She argued that the Act neither provides an exclusive remedy for her claim nor requires her to exhaust administrative remedies before filing her claim in district court. The court of appeals found that administrative remedies under the Act must be exhausted prior to filing any claim in district court. Therefore, it affirmed the judgment of the district court and held that Brooke's tortious interference claim was barred. The court did not reach the issue of whether the Act provides the exclusive remedy for sex discrimination claims.

We granted certiorari on both issues and now reverse the judgment of the court of appeals. ¹

II.

Summary judgment is proper only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(h); Cung La v. State Farm Auto. Ins., 830 P.2d 1007, 1009 (Colo.1992). Here, while there may remain issues of fact with respect to the merits of Brooke's claims, there are no material issues of fact concerning the issues on which we granted certiorari. Therefore, for purposes of reviewing the dismissal of Brooke's claim, we will treat her allegations of sex discrimination as true and address only the legal questions of whether the Act provided the exclusive remedy for the tortious interference claim and, if so, whether the Act required Brooke to exhaust administrative remedies before filing her claim in district court.

A.

We first address Brooke's contention that the district court erred in finding that the Act is the exclusive remedy for sex discrimination claims. ² We hold that it is not the exclusive remedy.

As a general rule, federal and state remedies for civil rights violations are cumulative, not exclusive. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 48, 94 S.Ct. 1011, 1020-21, 39 L.Ed.2d 147 (1974) (remedies under Title VII, 42 U.S.C. 2000(a), et seq., "supplement, rather than supplant" a claimant's rights under other applicable federal and state statutes). Moreover, the creation of a private right of action by state statute does not bar pre-existing common law rights of action unless the legislature clearly expressed its intent to do so. See, e.g., Farmers Group, Inc. v. Williams, 805 P.2d 419, 423 (Colo.1991) (holding that remedies under Colorado's No-Fault Act are cumulative and do not preempt common law tort claims for bad faith breach of insurance contract). In determining whether a statutory right of action supplants or merely supplements state common law rights, we have held that "statutes in derogation of the common law must be strictly construed, so that if the legislature wishes to abrogate rights that would otherwise be available under the common law, it must manifest its intent either expressly or by clear implication." Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1076 (Colo.1992).

We find no indication that the legislature intended to preclude common law sexual harassment claims by enacting the Anti-discrimination Act. No provision explicitly precludes common law or other statutory claims. Nor does the Act provide a comprehensive scheme for addressing sex discrimination in the workplace that otherwise would indicate "by clear implication" the legislature's intent to preclude common law claims.

In particular, the Act does not provide redress to an employee for discriminatory conduct that does not result in an employment-related decision affecting the employee's pay, status, or tenure. As relevant in this case, part 4 of the Act ³ prohibits discrimination by employers on grounds of "handicap, race, creed, color, sex, age, national origin, or ancestry" for purposes of hiring, discharge, promotion, demotion or compensation. § 24-34-402(1)(a), 10A C.R.S. (1994 Supp.). In addition, the Act forbids

any person, whether or not an employer, an employment agency, a labor organization, or the employees or members thereof:

(I) To aid, abet, incite, compel, or coerce the doing of any act defined in this section to be a discriminatory or unfair employment practice;

(II) To obstruct or prevent any person from complying with the provisions of this part 4 or any order issued with respect thereto;

(III) To attempt, either directly or indirectly, to commit any act defined in this section to be a discriminatory or unfair employment practice;

(IV) To discriminate against any person because such person has opposed any practice made a discriminatory or an unfair employment practice by this part 4, because he has filed a charge with the commission, or because he has testified, assisted, or participated in any manner in an investigation, proceeding, or hearing conducted pursuant to parts 3 and 4 of this article; ....

§ 24-34-402(1)(e). However, if an employee is subjected to verbal or physical abuse in the workplace on the basis of gender, but is not hired, fired, promoted, demoted, or compensated on that basis, the Act provides no recourse.

Furthermore, remedies under the Act for individuals subjected to sex discrimination on the job are only incidental to the Act's primary purpose of eradicating discriminatory practices by employers. If the CCRC finds that there is probable cause to credit the allegations of an individual's claims of discrimination, it first attempts to eliminate the practice by "conference, conciliation, and persuasion." § 24-34-306(2). If that method fails, the primary remedy for discriminatory practices under the Act is a cease and desist order. § 24-34-306(9). Other remedies authorized by the Act are limited to:

affirmative action regarding hiring, reinstatement, or upgrading of employees, with or without back pay, the referring of applicants for employment by any respondent employment agency, the restoration to membership by any respondent labor organization, the admission to or continuation in enrollment in an apprenticeship program, on-the-job training program, or a vocational school, the posting of notices, and the making of reports as to the manner of compliance.

§ 24-34-405. The Act permits but does not require an award of back pay and does not authorize the CCRC to award damages that might otherwise be available in a common law action.

Similarly, the duties of the CCRC, in addition to enforcing the compulsory provisions of the Act, are geared toward eliminating discriminatory practices on a broad...