Ferris v. Bakery, Confectionery and Tobacco Union, Local 26

Citation867 P.2d 38
Decision Date03 June 1993
Docket NumberNo. 92CA0751,92CA0751
Parties144 L.R.R.M. (BNA) 2380, RICO Bus.Disp.Guide 8410 Shirley FERRIS, Plaintiff-Appellant, v. BAKERY, CONFECTIONERY AND TOBACCO UNION, LOCAL 26, Defendant-Appellee. . V
CourtCourt of Appeals of Colorado

Valerie McNaughton, Denver, for plaintiff-appellant.

Brauer, Buescher, Valentine, Walter C. Brauer, II, Ellen M. Kelman, Denver, for defendant-appellee.

Opinion by Judge TAUBMAN.

Plaintiff, Shirley Ferris, appeals the summary judgment entered in favor of the defendant, Bakery Confectionery and Tobacco Union, Local 26 (the Union), on her various claims arising from alleged sexual harassment on the job and her subsequent discharge. We affirm in part, reverse in part, and remand for further proceedings.

Ferris alleged in her complaint that she had been employed as the Union's secretary between 1976 and 1988, during which time she alleged she was subject to a continuing series of unwanted sexual advances primarily by defendant Raymond Valdez, the Union president.

Following a suspension from her job in June 1988, Ferris' own union, Office and Professional Employees International Union, Local # 5 (OPEIU), filed a grievance on her behalf pursuant to a collective bargaining agreement then in effect. As a result of this grievance proceeding, Ferris ended her employment with the Union.

Shortly thereafter, OPEIU purported to settle the grievance by entering into a settlement with the Union providing for certain sick leave and vacation pay for Ferris and agreeing not to object to her receiving unemployment benefits. However, Ferris declared on the settlement agreement that she was not agreeing to it.

In August 1988, Ferris filed charges with the Colorado Civil Rights Commission alleging discrimination based upon age and sex. After investigation, the Civil Rights Commission found there was no probable cause to believe that the Union had violated the Colorado Anti-Discrimination Act.

Ferris filed a claim under the Workers' Compensation Act in November 1988, asserting that she had been exposed to sexual and emotional abuse on the job and alleging that, as a result, she suffered from high blood pressure, emotional distress, and post traumatic stress syndrome. She settled her workers' compensation claim for $45,000 in November 1989.

In June 1990, Ferris filed a complaint against the Union and Valdez, asserting claims for (1) wrongful discharge, (2) promissory estoppel, (3) public policy wrongful discharge, (4) violation of the Colorado Anti-Discrimination Act, (5) outrageous conduct, and (6) violation of the Colorado Organized Crime Control Act (COCCA). The district court granted the Union's motion for summary judgment before Ferris' time to respond to it had expired. The court's order was entered without specific findings, apparently based on its agreement with the Union's arguments that Ferris' claims were preempted by the Colorado Workers' Compensation Act and/or the federal Labor Management Relations Act and that Ferris had voluntarily released all claims as a result of OPEIU's settlement of her grievance relating to her termination.

Ferris moved for reconsideration of the trial court's order, and upon reconsideration, the court affirmed its entry of summary judgment in favor of the Union. It held that judgment was proper "either because Worker's Compensation provides the sole remedy to the plaintiff or because when plaintiff's collective bargaining representative settled her grievance, all her claims for relief against the Union were merged in the settlement." Also, the district court certified its ruling as final pursuant to C.R.C.P. 54(b).

During the pendency of this appeal, a jury found in favor of Valdez on claims 4 and 5 of Ferris' complaint. The judgment entered on that jury verdict has now been appealed. Based upon the jury verdict, the Union asked that we dismiss this appeal on the basis of collateral estoppel or, alternatively, stay proceedings pending the resolution of the case against Valdez. In an earlier order, we denied this motion but allowed the Union to renew this argument in its brief on the merits.

I. Summary Judgment

Summary judgment is a drastic remedy and is never warranted except on a clear showing that there exists no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988).

The moving party has the burden of establishing the lack of a triable factual issue, and all doubts as to the existence of such an issue must be resolved against the moving party. A party against whom summary judgment is sought is entitled to the benefit of all favorable inferences that may be drawn from the facts. Churchey v. Adolph Coors Co., supra. These principles apply all the more when, as here, the trial court grants a motion for summary judgment before the non-moving party's time to respond has expired.

Moreover, because the trial court entered only a cursory ruling in its decision, we shall consider both its reasons for granting summary judgment and additional grounds raised by the Union in its motion. See Patel v. Thomas, 793 P.2d 632 (Colo.App.1990).

II. Workers' Compensation Act Exclusivity

Ferris first contends that the district court erred in concluding that the Workers' Compensation Act provides the sole remedy to her and dismissing her claims on that basis. We agree.


Plaintiff's first three claims for relief assert different theories of wrongful discharge. Those claims concern her discharge, rather than injuries sustained while she was performing services in the course of employment. Thus, they may be brought irrespective of the workers' compensation claim. Hoffsetz v. Jefferson County School No. District R-1, 757 P.2d 155 (Colo.App.1988) (workers' compensation does not preclude an award of damages for mental suffering caused by willful or wanton breach of contract); Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo.1992) (public policy wrongful discharge is cognizable claim).


We also conclude that Ferris' claims for violation of the Anti-Discrimination Act and for outrageous conduct are not, as a matter of law, barred because her exclusive remedy is through the Workers' Compensation Act.

The Workers' Compensation Act, § 8-40-101, et seq., C.R.S. (1992 Cum. Supp.) provides the exclusive remedy to a covered employee for injuries sustained while the employee is performing services arising out of and in the course of employment and which themselves are proximately caused by injury or occupational disease arising out of and in the course of employment. Section 8-41-301, C.R.S. (1992 Cum.Supp.).

Here, as in Patel v. Thomas, supra, the parties do not dispute, and we agree, that Ferris' position was covered by the Workers' Compensation Act and that, since the alleged sexual harassment of Ferris occurred during working hours on the premises of her employment, the injuries of which she complained were proximately caused by injuries suffered "in the course of" her employment. Patel v. Thomas, supra.

As in Patel, the question here is whether the evidence presented on the summary judgment motion showed that Ferris' injuries were not proximately caused by an injury or occupational disease "arising out of" employment. The answer to this question requires us to analyze whether there is a sufficient nexus between the employment and the injury. See In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17 (Colo.1988).

To determine whether a sufficient nexus exists, our supreme court has divided intentional assaults into three categories: (1) those that have some inherent connection with the employment, such as disputes related to job duties or where work creates certain relations and conditions which result in the dispute; (2) those that are inherently private; and (3) those that are "neutral." In re Question, supra.

A neutral force, we have said, "is one which is blind or irrational in nature, having been applied against the employee solely because the employee happened to be at a particular place at a particular time." Stamper v. Hiteshew, 797 P.2d 784, 786 (Colo.App.1990).

Here, by alleging a series of acts of sexual harassment over a period of twelve years in her affidavit in support of reconsideration of the summary judgment order in favor of the Union, Ferris has presented evidence strongly supporting a finding that the Union's acts were specifically targeted at her and not neutral in nature. Moreover, as in Patel, the evidence implies that Valdez specifically chose Ferris as his victim, unlike the circumstances in In re Question, supra, where the plaintiff was the victim of a rape and where the parties agreed there was no private motivation for the attack. See Patel v. Thomas, supra.

Thus, as in Stamper, supra, there exists a genuine factual controversy regarding the requisite degree of job relatedness for workers' compensation coverage, and the trial court erred in dismissing plaintiff's claims on this ground.

III. Settlement and Merger of Claims

Ferris also maintains that trial court erred in granting summary judgment on the ground that settlement of her grievance by the Union resulted in merger of all claims into the settlement agreement. We agree.

The doctrine of merger or claim preclusion prohibits parties from relitigating issues which were or could have been raised in a previously adjudicated claim, and applies only to final judgments, not to settlements. Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973). Thus, even if we assume the settlement here was authorized--a point Ferris disputes--it could not legally bar her litigation of different claims.

Additionally, there is a genuine issue of material fact as to whether Ferris in fact authorized the settlement of her grievances. The Union presented a copy of the settlement, which covered all claims, in...

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