Hoyt v. Target Stores, Div. of Dayton Hudson Corp.

• Court: Colorado Court of Appeals
• Writing for the Court: TURSI; TAUBMAN; TAUBMAN
• Citation: Hoyt v. Target Stores, Div. of Dayton Hudson Corp., 981 P.2d 188 (Colo. App. 1998)
• Decision Date: 13 November 1998
• Docket Number: 97CA0367
• Parties: 137 Lab.Cas. P 58,580, 98 CJ C.A.R. 5753 Susan HOYT, Plaintiff-Appellee, v. TARGET STORES, DIVISION OF DAYTON HUDSON CORPORATION, Defendant-Appellant . V

Page 188

981 P.2d 188

137 Lab.Cas. P 58,580, 98 CJ C.A.R. 5753

Susan HOYT, Plaintiff-Appellee, v. TARGET STORES, DIVISION OF DAYTON HUDSON CORPORATION Defendant-Appellant

No. 97CA0367.

Colorado Court of Appeals Div. V.

Nov. 13, 1998.

Rehearing Denied Dec. 17, 1998. ^*

Certiorari Denied July 26, 1999. ^**

Michael O'Malley, Denver, Colorado; Ronald A. Podboy, Denver, Colorado, for Plaintiff-Appellee

Faegre & Benson, LLP, Elizabeth A. MacDonald, Daniel Grossman, for Defendant-Appellant

Opinion by Judge ROTHENBERG.

In this action arising out of an employment dispute, defendant, Target Stores, Inc., (Target) appeals the judgment entered on a jury verdict finding it liable to plaintiff, Susan Hoyt, its former employee. We affirm in part and reverse in part.

After plaintiff was terminated by Target in June 1995, she filed this action alleging a number of claims, two of which went to trial. The jury returned a verdict in plaintiff's favor on both claims, awarding her $200,000 in compensatory damages and $35,000 in punitive damages for wrongful discharge in violation of public policy, and $15,000 in compensatory damages for breach of express covenant of good faith and fair dealing.

The evidence surrounding plaintiff's termination was highly disputed. Basically, Target contended that plaintiff had altered two timecards in order to be paid for one and one-half hours of travel time to which she was not entitled. According to Target, this alleged "falsification" of company documents constituted gross misconduct and justified her immediate dismissal.

Plaintiff maintained that Target's stated reason for the termination was pretextual and that her termination was motivated by a dispute between her and a new supervisor over plaintiff's entitlement to travel time pay. She relied on the Colorado Wage Claim Act, § 8-4-101, et seq., C.R.S.1998, which makes it unlawful for the agent of an employer to willfully refuse to pay a wage claim, or falsely deny the amount of a wage claim, or the validity thereof, "with intent to annoy, harass, oppress, hinder, delay, or defraud the person to whom such indebtedness is due...." Section 8-4-117, C.R.S.1998.

Plaintiff presented evidence at trial that she had worked for Target for thirteen years in a clerical capacity, that her duties had included payroll, that she was rated as an "outstanding" or "excellent" employee on all of her performance reviews until September 1994, when a new supervisor was hired, and that the new supervisor then began to downgrade her.

As to the specific incident that led to her termination, plaintiff's evidence indicated that: (1) by Target policy, she was entitled to be paid for one and one-half hours of time spent on May 4, 1995, and May 8, 1995, traveling to a Target store other than her regularly assigned store; (2) the supervisor had refused to pay plaintiff for that travel time; (3) plaintiff had not falsified the two timecards in question, but had corrected them to reflect accurately the hours to which she was entitled to be paid; (4) in making these changes, plaintiff had included some travel time on the May 4 timecard and some on the May 8 timecard, thus avoiding overtime for the week of May 4; and (5) because overtime was strongly disfavored by Target management, this procedure of "pushing time forward" was a cost-saving method routinely used by Target's employees and management alike to avoid overtime.

Also, plaintiff's evidence indicated that Target's policy regarding travel time was not administered in an even-handed manner by the supervisor; that other employees had followed a similar procedure to that used by plaintiff and had received compensation for similar travel time; the other employees had not been subjected to disciplinary actions; and the changes made by plaintiff in her timecards had saved Target money.

I.

Initially, we reject Target's contention that the trial court erred in denying its pretrial motion for summary judgment as to plaintiff's two successful claims for relief. The denial of a motion for summary judgment is not reviewable. Feiger, Collison & Killmer v. Jones, 926 P.2d 1244 (Colo.1996).

II.

Target contends that, because plaintiff's claim was not based on a sufficiently specific enunciation of public policy, the trial court erred in failing to direct a verdict in its favor on plaintiff's claim for wrongful discharge in violation of public policy. We disagree.

An at-will employee establishes a prima facie case of wrongful discharge if the employee shows that: (1) the employer directed the employee to perform an illegal act as part of the employee's work-related duties or prohibited the employee from performing a public duty or exercising an important job-related right or privilege; (2) the action directed by the employer would violate a specific statute relating to the public health, safety, or welfare, or would undermine a clearly expressed public policy relating to the employee's basic responsibility as a citizen or the employee's right or privilege as a worker; (3) the employee was terminated as a result of refusing to perform the act directed by the employer or for exercising the privilege to which the employee was entitled; and (4) the employer was aware or reasonably should have been aware that the employee's refusal to comply with the order or directive was based on the employee's reasonable belief that the action ordered was illegal, contrary to clearly expressed statutory policy relating to the employee's duty as a citizen, or violative of the employee's legal right or privilege as a worker. See Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo.1992); Lathrop v. Entenmann's, Inc., 770 P.2d 1367 (Colo.App.1989).

In Crawford Rehabilitation Services, Inc. v. Weissman, 938 P.2d 540 (Colo.1997), plaintiff alleged that she was terminated for calling the Colorado Division of Labor and complaining that her employer was attempting to eliminate her rest breaks. The supreme court rejected her claim that she had a public policy right to report such violations pursuant to § 8-6-115, C.R.S. l998. It noted that plaintiff's call to the division did not result in the initiation of an investigation or proceeding by the director, and concluded that plaintiff's wrongful discharge claim was not based upon clearly expressed public policy relating to an employee's basic rights or duties.

In so ruling, the court acknowledged that the public policy supporting such a claim was not "subject to precise definition," Crawford Rehabilitation Services, Inc. v. Weissman, supra, 938 P.2d at 552, but it described several situations in which actions do contravene public policy. These include: claims involving a matter affecting society as a whole, rather than the personal or proprietary interests of the parties; actions which strike at the heart of a citizen's social rights, duties, and responsibilities; and actions by an employer which lead to an outrageous result clearly inconsistent with a stated public policy. See Sabey & Moore, Crawford's Balancing Test: At-Will Employment Versus Public Policy Wrongful Discharge, 27 Colo. Law. 89 (November 1998).

The court emphasized that in order to justify interference into an employer's business decisions, discharge claims based upon public policy must concern behavior that truly impacts the public. Compare Rocky Mountain Hospital v. Mariani, 916 P.2d 519 (Colo.1996) (accountant discharged for refusing to use misleading accounting principles stated cognizable claim for wrongful discharge) with Dyson v. District of Columbia Department of Employment Services, 566 A.2d 1065 (D.C.App.l989) (discharge of worker for leaving assembly line to take medication in violation of employer's instructions did not constitute retaliatory discharge under workers' compensation statute).

The Crawford court rejected the employee's claim because it did not view the claim "that she was terminated for exercising a right either to call the division or to take rest breaks as one that truly impacts the public." Crawford Rehabilitation Services, Inc. v. Weissman, supra, 938 P.2d at 558.

Here, in contrast, the issue involved was the right of employees to be duly compensated by an employer under the Colorado Wage Claim Act, § 8-4-101, et seq., C.R.S.1998, for time actually worked, which has been acknowledged to be an issue of major public and economic importance in Colorado. See Morris v. Towers Financial Corp., 916 P.2d 678 (Colo.App.1996); Porter v. Castle Rock Ford Lincoln Mercury, 895 P.2d 1146 (Colo.App.1995).

Plaintiff presented evidence that her supervisor had directed her and other Target employees not to exercise their job-related rights to be paid for travel time from store to store, in violation of the Colorado Wage Claim Act, and that the real reason for her discharge was because she had exercised that right. Because such a right impacts the public at large, it is a considerably more significant claim of entitlement than the rest breaks involved in Crawford.

Target nevertheless asserts that plaintiff's termination was unquestionably justified by her falsification of the company's timecards and by her unauthorized exercise of "self-help." However, that assertion overlooks the fact that the jury in its verdict form specifically found that Target's action in firing plaintiff was not justified.

The jury also found in its verdict form that receiving payment for travel time was an important work-related right or privilege; that Target's instruction that plaintiff would not be paid for travel time prevented plaintiff from exercising an important work-related right or privilege; that Target had fired plaintiff because she refused to comply with the supervisor's instruction; and that Target's termination of plaintiff "was attended by circumstances of fraud or malice or willful and wanton conduct," which justified an award of punitive damages.

These factual determinations by the jury are irreconcilable with...