Butler v. Bd. of Cnty. Comm'rs for San Miguel Cnty.

• Decision Date: 11 March 2021
• Docket Number: Court of Appeals No. 19CA1913
• Citation: 491 P.3d 506
• Court: Colorado Court of Appeals
• Parties: Jerud BUTLER, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS FOR SAN MIGUEL COUNTY, Colorado, Defendant-Appellee.

491 P.3d 506

Jerud BUTLER, Plaintiff-Appellant,

v.BOARD OF COUNTY COMMISSIONERS FOR SAN MIGUEL COUNTY, Colorado, Defendant-Appellee.

Court of Appeals No. 19CA1913

Colorado Court of Appeals, Division IV.

Announced March 11, 2021

Killian Davis Richter & Mayle, PC, Nicholas W. Mayle, Damon Davis, Benjamin P. Meade, Joseph H. Azbell, Grand Junction, Colorado, for Plaintiff-Appellant

Williams, Turner & Holmes, P.C., Jeffrey L. Driscoll, Grand Junction, Colorado, for Defendant-Appellee

Opinion by JUDGE GOMEZ

¶ 1 This case presents two issues of first impression, both arising under statutory exceptions to the state's at-will employment doctrine. First, we determine that the Lawful Activities Statute — which prohibits an employer from "terminat[ing] the employment of any employee" due to the employee's lawful off-duty conduct — does not apply to an employee's demotion to another position with the same employer. See § 24-34-402.5(1), C.R.S. 2020. Second, we determine that the Freedom of Legislative and Judicial Access Act (Access Act) — which prohibits an employer from taking any action against an employee for testifying before a committee of the General Assembly or a court or for speaking to a member of the General Assembly at the committee's, court's, or member's request — may apply when a party or a party's attorney calls an employee to testify as a witness in a court proceeding and a judge, magistrate, or other judicial officer allows the testimony. See § 8-2.5-101(1)(a), C.R.S. 2020.

¶ 2 Accordingly, we affirm in part and reverse in part the trial court's entry of judgment in favor of defendant Board of County Commissioners for San Miguel County (the County) and against plaintiff Jerud Butler. Specifically, we affirm the dismissal of Butler's claim under the Lawful Activities Statute, reverse the entry of summary judgment on his claim under the Access Act, and remand for further proceedings.

I. Background

¶ 3 Butler and his former brother-in-law, Jeremy Spor, worked in different districts within the County's Road and Bridge Department. As Spor and his wife (who is the sister of Butler's wife) became embroiled in contested divorce proceedings, Spor and Butler began having issues at work. Around that time, Butler was promoted to district supervisor, conditioned on successfully completing a one-year probationary period and not having any negative interactions with Spor at work.

¶ 4 Shortly after his promotion, Butler took approved time off from work to testify at a parenting time hearing between Spor and his wife. Butler was not issued a subpoena but came to court voluntarily at the request of his sister-in-law and her attorney. During the hearing, he testified about the unpredictable nature of on-call work with the Road and Bridge Department. He indicated, however, that he didn't have any supervisory authority over Spor, didn't set Spor's work schedule, and didn't know whether Spor had any agreement with his supervisor about his schedule.¹ After the hearing, the court in that case awarded Spor significantly less parenting time than he had sought.

¶ 5 Spor lodged a complaint at work. The County conducted an investigation, after which it demoted Butler to his prior, nonmanagerial position at a lower rate of pay. The County's stated basis for demoting Butler was that his decision to testify about Spor's work schedule (when he didn't supervise Spor and wasn't aware of Spor's scheduling arrangements with his supervisors) reflected poor managerial judgment and allowed his family dispute to disrupt the workplace.

¶ 6 Butler brought this case, asserting claims under the Lawful Activities Statute and the Access Act.² The trial court dismissed Butler's Lawful Activities Statute claim on a motion to dismiss under C.R.C.P. 12(b)(5), concluding that the statute prohibits only termination of employees and doesn't apply to Butler's demotion. The court later granted the County's motion for summary judgment on Butler's Access Act claim, concluding that Butler's hearing testimony was not protected because it wasn't provided at the request of a court. Butler appeals both rulings.

II. Discussion

A. Standard of Review

¶ 7 We review de novo a trial court's dismissal of an action under C.R.C.P. 12(b)(5) for failure to state a claim upon which relief can be granted. Abu-Nantambu-El v. State , 2018 COA 30, ¶ 8, 433 P.3d 101. We accept all factual allegations in the complaint as true and view those allegations in the light most favorable to the plaintiff. Id. To survive a motion to dismiss, a complaint must plead sufficient facts that, if taken as true, suggest plausible grounds to support a claim for relief. Id. ; see also Warne v. Hall , 2016 CO 50, ¶¶ 9, 24, 373 P.3d 588.

¶ 8 Similarly, we review a trial court's grant of summary judgment de novo. Edwards v. Bank of Am., N.A. , 2016 COA 121, ¶ 13, 382 P.3d 1272. We give the nonmoving party the benefit of all favorable inferences that may reasonably be drawn from the evidence, and we construe all doubts as to the existence of any genuine issue of material fact in that party's favor. Id. at ¶ 12. Summary judgment is proper only if the pleadings and supporting documentation demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. at ¶ 11 ; see also C.R.C.P. 56.

¶ 9 We also review a trial court's interpretation of a statute de novo. Lewis v. Taylor , 2016 CO 48, ¶ 14, 375 P.3d 1205. In construing a statute, our primary purpose is to ascertain and effectuate the legislature's intent. McCoy v. People , 2019 CO 44, ¶ 37, 442 P.3d 379. To do so, we focus first on the language of the statute. Id. We give the statutory words and phrases their plain and ordinary meanings, read those words and phrases in context, and construe them according to the rules of grammar and common usage. Id. We also endeavor to effectuate the purpose of the legislative scheme, reading that scheme as a whole, giving consistent effect to all of its parts, and avoiding constructions that would render any words or phrases superfluous or would lead to illogical or absurd results. Id. at ¶ 38.

¶ 10 If the statutory language is unambiguous, we apply its plain and ordinary meaning and look no further. Carrera v. People , 2019 CO 83, ¶ 18, 449 P.3d 725. But if the language is ambiguous, in that it is susceptible of multiple reasonable interpretations, we may consider other aids to statutory construction, such as the consequences of a given construction, the end to be achieved by the statute, and the statute's legislative history. McCoy , ¶ 38.

B. Lawful Activities Statute

¶ 11 The parties dispute whether the Lawful Activities Statute's prohibition on termination of employment due to an employee's lawful off-duty conduct extends to the demotion of an employee. We conclude that it does not.

¶ 12 Section 24-34-402.5, titled "[u]nlawful prohibition of legal activities as a condition of employment," provides that

[i]t shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction: (a) [r]elates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or (b) [i]s necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

§ 24-34-402.5(1) (emphasis added). It also creates a private right of action for employees who are aggrieved by a violation of these provisions. § 24-34-402.5(2)(a).

¶ 13 We conclude, for five reasons, that the statute unambiguously prohibits only termination or discharge of an employee's employment and does not extend to demotion of an employee to another position with the same employer.

¶ 14 First, we look to the plain and ordinary meaning of the word "terminate." Where, as here, a statutory term is not defined in a statute, is a word in common usage, and is a word where people of ordinary intelligence needn't guess at its meaning, we may refer to dictionary definitions in determining its plain and ordinary meaning. Mendoza v. Pioneer Gen. Ins. Co. , 2014 COA 29, ¶ 24, 365 P.3d 371. The dictionary definition of "terminate" is "to come to an end in time." Merriam-Webster Dictionary, https://perma.cc/23H7-XWH2. So, a literal reading of the statute is "to end the employment of any employee." This unambiguously refers to the end of the employment relationship — not just the cessation of a particular position.

¶ 15 Second, we glean no significance from the legislature's use of the word "terminate" in section 24-34-402.5, as opposed to the word "discharge" used in other employment statutes. See, e.g. , § 24-34-402(1)(a), C.R.S. 2020; see also People v. Jompp , 2018 COA 128, ¶ 68, 440 P.3d 1166 ("Sometimes the legislature uses different language to achieve similar results."). Courts have used these two words interchangeably in interpreting the Lawful Activities Statute. See, e.g. , Coats v. Dish Network, LLC , 2015 CO 44, ¶ 1, 350 P.3d 849 ("This statute generally makes it an unfair and discriminatory labor practice to discharge an employee based on the employee's ‘lawful’ outside-of-work activities.") (emphasis added); Robert C. Ozer, P.C. v. Borquez , 940 P.2d 371, 375 (Colo. 1997) ("[A] jury instruction submitted pursuant to this statute would necessarily include an element providing that the employee was discharged because he or she engaged in lawful activity away from the employer's premises during nonworking hours.") (emphasis added).³

¶ 16 Nothing in the language of the Lawful Activities Statute suggests the legislature intended a different meaning when it used the word "terminate" rather than "discharge." Indeed,...