Gatuma v. Encore Elec., Inc.

• Decision Date: 30 October 2012
• Docket Number: Civil Action No. 12-cv-01611-MSK-MEH
• Parties: TIMOTHY L. GATUMA, Plaintiff, v. ENCORE ELECTRIC, INC., Defendant.
• Court: U.S. District Court — District of Colorado

TIMOTHY L. GATUMA, Plaintiff,

v.ENCORE ELECTRIC, INC., Defendant.

Civil Action No. 12-cv-01611-MSK-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: October 30, 2012

Honorable Marcia S. Krieger

OPINION AND ORDER ADOPTING RECOMMENDATION

THIS MATTER comes before the Court pursuant to the Magistrate Judge's September 21, 2012 Recommendation (# 23) that the Defendant's Motion to Dismiss (# 4) be granted as to the Plaintiff's fourth claim based on a tort of wrongful discharge in violation of public policy.

More than 14 days have passed since the Recommendation was issued and neither party has filed Objections under Fed. R. Civ. P. 72(b). Where no party files objections to a Recommendation, the Court applies whatever standard of review to that Recommendation that it deems appropriate. Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir.1991). Nevertheless, the Court has reviewed the matter under the otherwise applicable de novo standard of Fed. R. Civ. P. 72(b).

The Court agrees with the Magistrate Judge that the wrongful discharge claim should be dismissed. In doing so, the Court writes briefly to address the Magistrate Judge's observation that judges of this Court have reached differing conclusion as to whether claims of wrongfuldischarge in violation of public policy are pre-empted by the Colorado Anti-Discrimination Act ("CADA"), C.R.S. § 24-34-402. Compare, e.g., Endahl v. Vinell Corp., 2006 WL 57496 (D. Colo. Jan. 10, 2006) (in which the undersigned concluded that effective preemption occurs) with Kennedy v. Colorado RS, LLC, 2012 WL 364091 (D. Colo. Feb. 1, 2012) (in which Judge Daniel concluded that tort claims premised on public policy are not preempted by CADA).

Because Endahl was issued several years ago, the undersigned takes the opportunity to revisit the issue in light of subsequent development of caselaw, including Judge Daniel's thoughtful opinion on the question. Nevertheless, upon further review of authority and consideration of the matter, the undersigned remains convinced that affording preemptive effect to CADA is appropriate in the circumstances presented here.

In Endahl, the court was guided by a line of cases beginning with Gamble v. Levitz Furniture Co., 759 P.2d 761, 766 (Colo. App. 1988). There, the plaintiff brought both a statutory claim for handicap discrimination under CADA, as well as a claim for wrongful discharge in violation of public policy "based on his statutory right to participate in on-the-job training programs pursuant to" a provision of CADA. Id. at 763. The trial court granted summary judgment to the employer on both claims, finding that the employee was not handicapped as defined in the statute. On appeal, the Court of Appeals reversed that grant of summary judgment on the statutory claim (finding that the trial court improperly construed the statutory definition of handicap), but affirmed the grant of judgment on the wrongful discharge claim. At the time, the question of whether Colorado recognized the tort of wrongful dischargein violation of public policy was still somewhat unsettled.¹ Nevertheless, Gamble concluded that "if . . .a public policy exception is available [as a cognizable claim], it is not available when . . . the statute in question provides the employee with a wrongful discharge remedy."² Id. Gamble has since spawned a number of cases that follow that holding, including Krauss v. Catholic Health Initiatives Mountain Region, 66 P.3d 195, 203 (Colo.App.2003), Caspar v. Lucent Technologies, Inc., 280 F.Supp.2d 1246, 1249 (D.Colo.2003), and Endahl, among others.

There is, however, a competing strand of precedent arising out of Brooke v. Restaurant Services, Inc., 906 P.2d 66 (Colo. 1995). There, an employee claiming to have been sexually harassed brought a claim for wrongful discharge in violation of public policy (with the public policy in question apparently being that embodied by CADA), as well as a claim for tortious interference with contract (in that her immediate supervisor interfered with her employment contract with the employer). The trial court eventually granted summary judgment to the employer on all claims. On appeal, the employee "contested only the grant of summary judgment on her tortious interference claim," and the Court of Appeals affirmed, finding that the employee was required to exhaust CADA's administrative remedies even though her claim sounded in tort. Id. at 67. The Colorado Supreme Court granted certiorari on two questions: (i) "whether . . . claimants must exhaust administrative remedies under [CADA] in cases whichcould be but are not brought pursuant to the Act"; and (ii) "whether . . . [CADA] provides an exclusive remedy." Id. at n. 1.

As to the first question, the Court reasoned that "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." Id. at 68. Evidence of legislative intent must be either be expressly included in the statute or appear "by clear implication." Id. Finding no express intent in CADA to preempt common-law claims, the Court turned to the question of whether the statute clearly implied an intention to do so. It noted that "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"; in other words, the Court did not construe CADA as offering a remedy for claims of sexual harassment that did not result in tangible employment consequences. Id. at 68-69. The Court also noted that the remedies available under CADA for aggrieved employees "are only incidental to the Act's primary purpose of eradicating discriminatory practices . . . on a broad scale rather than addressing the harm such practices cause on a case-by-case basis." Id. at 69. Accordingly, the Court concluded that "the Act does not explicitly bar non-Act claims and does not provide a comprehensive scheme for addressing sex discrimination in the workplace," and that "the legislature [did not] intend the Act to preempt the remedies that are otherwise available to victims of sexually discriminatory conduct in the workplace." Id. at 70. Thus, it held "that [CADA] does not provide an exclusive remedy for sex discrimination claims."³ Id.

Turning to the second question - whether an employee asserting tort claims associated with but not pursued under CADA must exhaust CADA's administrative process before filing suit - the Court concluded that exhaustion was not required. It noted that most reasonable reading of C.R.S. §24-34-306(14) (the exhaustion requirement) related to claims brought pursuant to the Act, not simply claims arising out of its prohibitions. Id. at 70. The Court noted that the Colorado Civil Rights Commission, the agency tasked with administering the Act, "has neither the jurisdiction to address common law claims arising out of discriminatory conduct not resulting in an employment-related decision nor authority to grant an (sic) claimant compensatory relief." Id. at 72. Thus, "it would serve no purpose to require a claimant to exhaust administrative remedies under the Act before filing non-Act claims." Id.

Several facts of Brooke warrant comment. First, and most notably, Brooke involved consideration of the interaction between CADA and a claim for tortious interference with contract, not a claim for wrongful discharge in violation of public policy. (Indeed, Brooke notes that the latter claim was raised by the employee in the trial court, but was not pursued on appeal.) There are significant qualitative differences between the two claims. Most notably, a tortious interference claim can lie against a defendant other than the employer - that is, a third-party to the employer/employee contractual relationship. See e.g. Trimble v. City and County of Denver, 697 P.2d 716, 726 (Colo. 1985) (finding that employee's supervisor could be liable for interfering with contract between employee and employer). In contrast, a claim for wrongful discharge must necessarily lie against the employer itself. This fact becomes significant when one observes that CADA prohibits discrimination only by "employers," C.R.S. § 24-34-402(1)(a). Although this Court has located no reported caselaw directly addressing the question,CADA's definition of the term "employer"makes it unlikely that supervisors engaging in discriminatory acts could be sued individually. See C.R.S. § 24-34-401(3) (defining "employer" to mean "every . . . person employing persons within the state"); accord Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996), quoting Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993) ("The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act") (emphasis in original). Thus, a discrimination claim brought against an individual supervisor - e.g. such as a claim for tortious interference with contract in Brooke necessarily falls outside the reach of CADA.

A claim for wrongful discharge differs from a claim for tortious interference with contract in another important way. To state a claim for wrongful discharge in violation of public policy, where the "public policy" in question is a prohibition against race discrimination, the employee would have to show: (i) the employer deprived him of an important job-related right; and (ii) the action of the employer would undermine a clearly-expressed public policy relating to the employee's rights and privileges as a worker.⁴ See e.g. Lorenz, 823 P.2d at 109. In circumstances such as these, the "important job-related right" and the "clearly expressed public policy" are identical - the right to/policy of non-discrimination in employment. Thus, for practical purposes, a claim for wrongful discharge predicated on a public policy of non-discrimination is indistinguishable from a...