Jaynes v. Centura Health Corp.

• Decision Date: 04 May 2006
• Docket Number: No. 04CA2084.,04CA2084.
• Citation: 148 P.3d 241
• Parties: Donna JAYNES, Plaintiff-Appellant, v. CENTURA HEALTH CORPORATION, d/b/a St. Anthony Hospital Central, Defendant-Appellee.
• Court: Colorado Court of Appeals

148 P.3d 241

Donna JAYNES, Plaintiff-Appellant, v. CENTURA HEALTH CORPORATION, d/b/a St. Anthony Hospital Central, Defendant-Appellee.

No. 04CA2084.

Colorado Court of Appeals, Div. V.

May 4, 2006.

As Modified on Denial of Rehearing June 29, 2006.

Certiorari Denied December 4, 2006.^*

Roseman & Kazmierski, L.L.C., Barry D. Roseman, Denver, Colorado, for Plaintiff-Appellant.

Kutak Rock, LLP, Melvin B. Sabey, Mark L. Sabey, Denver, Colorado, for Defendant-Appellee.

WEBB, J.

In this wrongful discharge action, plaintiff, Donna Jaynes, appeals from the summary judgment entered in favor of defendant, Centura Health Corporation, doing business as St. Anthony Hospital Central, dismissing her public policy and breach of implied contract or promissory estoppel claims. We affirm.

Jaynes worked as a nurse at St. Anthony's. During her lengthy tenure, different entities, most recently Centura, owned and operated the hospital. She received various employee handbooks at different times, but she was never a party to an express employment contract.

Centura suspended Jaynes based on two specific incidents. In one, a disagreement arose involving Jaynes, a physician, and the patient's family concerning patient management. Jaynes alleged that she submitted an occurrence report to the hospital's Quality Assurance Committee concerning treatment of this patient. In the other, Jaynes delayed administering medication to a patient for eleven hours.

Jaynes responded to the suspension with lengthy, written denials of the allegations against her. Later she submitted an "action plan" in which she asserted that she had been acting as a "patient advocate" under her ethical obligations as a nurse. Centura then terminated her employment without going through a corrective action process. Following her termination, Jaynes did not request a review by the hospital's Problem Resolution Council.

I. Summary Judgment Standard

We review a summary judgment de novo, Vail/Arrowhead, Inc. v. Dist. Court, 954 P.2d 608 (Colo.1998), and consider the facts in the light most favorable to the nonmovant. Redmond v. Chains, Inc., 996 P.2d 759 (Colo. App.2000).

II. Public Policy

Jaynes first contends the trial court erred in entering summary judgment for Centura on her public policy wrongful discharge claim. We disagree.

Absent an express contract providing otherwise, Colorado law presumes the employment relationship to be terminable at will by either party without liability. Cont'l Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987). Common law exceptions to this presumption include the two issues in this case: public policy and implied contract or promissory estoppel. Crawford Rehab. Servs., Inc. v. Weissman, 938 P.2d 540 (Colo. 1997). An employee hired without an express contract has the burden of pleading and proving one of these exceptions. Pickell v. Ariz. Components Co., 931 P.2d 1184 (Colo.1997).

In Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo.1992)(Lorenz), the supreme court held that an at-will employee has a claim for wrongful discharge "if the discharge of the employee contravenes a clear mandate of public policy." Lorenz, supra, 823 P.2d at 107 (quoting Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081, 1089 (1984)). The Lorenz court set out four elements of a public policy wrongful discharge case:

• the employer directed the employee to perform an illegal act or prohibited the employee from performing a public duty or exercising an important job-related right or privilege;

• 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 rights or privileges as a worker;

• the employee was terminated as a result of refusing to perform the act directed by the employer; and

• the employer was aware, or reasonably should have been aware, that the employee's refusal to comply with the order was based on the employee's reasonable belief that the action ordered by the employer was illegal, contrary to clearly expressed statutory policy relating to the employee's duty as a citizen, or violative of the employee's legal rights or privileges as a worker.

The employee in Lorenz relied on 18 U.S.C. § 1001, a federal criminal statute proscribing fraud, as a source of public policy. But public policy may emanate from sources other than statutes.

In Rocky Mountain Hospital & Medical Service v. Mariani, 916 P.2d 519, 524 (Colo.1996)(Mariani), a certified public accountant brought a wrongful discharge action alleging that she had been terminated for refusing to act contrary to professional ethics. The supreme court held that public policy could be found in Rule 7.3, Rules of Professional Conduct, promulgated by the Colorado State Board of Accountancy, which provided in relevant part, "A certificate holder shall not in the performance of professional services knowingly misrepresent facts, nor subordinate his judgment to others."

According to the Mariani court, "[a] professional employee forced to choose between violating his or her ethical obligations or being terminated is placed in an intolerable position." Mariani, supra, 916 P.2d at 525. But the court also observed that "[t]hese rules of professional conduct govern every person practicing as a certified public accountant," and "[f]ailure to abide by these rules may result in professional discipline." Mariani, supra, 916 P.2d at 526.

In Mariani, the court went on to explain that "[t]he Board has responsibility for making appropriate rules of professional conduct." Mariani, supra, 916 P.2d at 526; see § 12-2-104(1)(b), C.R.S.2005. It quoted from the legislative declaration establishing the Board, § 12-2-101, C.R.S.2005:

It is declared to be in the interest of the citizens of the state of Colorado and a proper exercise of the police power of the state of Colorado to provide for the licensing and registration of certified public accountants . . . to provide for . . . the maintenance of high standards of professional conduct by those so licensed and registered as certified public accountants.

Mariani, supra, 916 P.2d at 526.

Since Mariani, neither the supreme court nor any division of this court has recognized a public policy wrongful discharge claim based solely on rules of professional conduct or ethics.

The identification of a statutory, constitutional, or other source as a sufficiently clear expression of public policy is an issue of law for the court. Mariani, supra. Appellate review of legal questions is de novo. Awad v. Breeze, 129 P.3d 1039 (Colo.App.2005).

A. ANA Code and AACN Policy

Jaynes first argues that her termination violated public policy because it was, at least in part, in retaliation for conduct required by her ethical obligations as a nurse. We disagree.

On appeal, Jaynes cites to a publication of the American Nurses Association entitled "Code for Nurses with Interpretive Statements" (ANA Code) and a "public policy" entitled "Role of the Critical-Care Nurse" that appears on the American Association of Critical-Care Nurses website (AACN Policy) as sources of public policy.

Initially, we note Centura's assertion that Jaynes failed to establish a sufficient foundation under C.R.C.P. 56(e) for the ANA Code and the AACN Policy. We need not decide this issue, however, because we conclude, as a matter of law, that neither the ANA Code nor the AACN Policy supports a public policy wrongful discharge claim under Mariani.

Relevant facts concerning the ANA Code and the AACN Policy are not in dispute. Jaynes offered no evidence that she had ever been a member of the ANA or the AACN, and at her deposition she admitted that she was not currently an ANA member. She also acknowledged that the ANA is not a governmental entity and has no legal authority either to adopt rules or to impose sanctions for noncompliance with its Code. She presented no evidence that the AACN has any such legal authority.

Nor does the record contain any evidence that noncompliance with either the ANA Code or the AACN Policy would subject Jaynes to discipline by the State Board of Nursing. See § 12-38-117, C.R.S.2005 (listing "grounds for discipline" by the Board, which do not include violating the ANA Code, the AACN Policy, or any other rules of ethics or conduct).

These facts show that the ANA Code and the AACN Policy differ from State Board of Accountancy Rule 7.3 in several ways: (1) Rule 7.3 represents the exercise of expressly delegated legislative authority; (2) all certified public accountants are subject to Rule 7.3; and (3) violation of Rule 7.3 could subject a certified public accountant to discipline.

In Mariani, the supreme court relied primarily on Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980), where a physician asserted that he had been terminated for refusing to engage in conduct that would have violated his Hippocratic oath, and cases citing Pierce. None of those cases upheld a public policy wrongful discharge claim based on a privately promulgated ethics code. The Mariani court also cited General Dynamics Corp. v. Superior Court, 7 Cal.4th 1164, 32 Cal.Rptr.2d 1, 876 P.2d 487 (1994), which involved mandatory professional conduct rules for licensed attorneys.

Thus, unlike the doctor in Pierce, the lawyer in General Dynamics, or the accountant in Mariani, on this record we cannot conclude that Centura placed Jaynes in the position of choosing between violating "her ethical obligation or being terminated." Mariani, supra, 916 P.2d at 525 (emphasis supplied).

Jaynes cites no case, and we have found none, recognizing the ANA Code or the AACN Policy as sufficient to sustain a public policy wrongful discharge action. To the contrary, in Warthen v. Toms River Community Memorial Hospital, 199 N.J.Super. 18, 28, 488 A.2d 229, 234 (App.Div.1985), the court referred to ...