Lorenz v. Martin Marietta Corp., Inc.

Decision Date26 July 1990
Docket NumberNo. 86CA1603,86CA1603
Citation802 P.2d 1146
Parties, 125 Lab.Cas. P 57,329, 5 IER Cases 986 Paul M. LORENZ, Plaintiff-Appellant and Cross-Appellee, v. MARTIN MARIETTA CORPORATION, INC., Defendant-Appellee and Cross-Appellant. . V
CourtColorado Court of Appeals

Miller & McCarren, P.C., John J. McHale, Jr., Denver, for plaintiff-appellant and cross-appellee.

Holme, Roberts & Owen, John R. Webb, Katherine J. Peck, Susan Begesse Prose, Denver, for defendant-appellee and cross-appellant.

Opinion by Judge DUBOFSKY.

In this action premised on the allegation by plaintiff, Paul M. Lorenz, of wrongful discharge from employment, the trial court, at the end of plaintiff's evidence, granted the motion for dismissal and for a directed verdict by defendant, Martin Marietta Corporation, Inc. Plaintiff appeals and defendant cross-appeals the trial court's ruling as to the award of costs. We reverse.

Plaintiff is a specialist in mechanical engineering and was initially employed by defendant in its research and development department utilizing his specialty in fracture mechanics. He was employed as an at-will employee from 1972 to 1975. Plaintiff was considered a "principal investigator" whose responsibility was quality control for work contracted for by the National Aeronautics and Space Administration (NASA).

Plaintiff presented evidence at trial which indicated that, on a number of occasions, he objected to defendant's work as being of inferior quality. Contrary to defendant's request, plaintiff refused to provide NASA with misleading and erroneous information. In a design review meeting held in 1973, plaintiff complained that a proposed testing sequence for a project was inadequate. Additionally, plaintiff allegedly complained to his supervisor that a contract bid proposed to NASA included unrealistic costs assessments resulting in a false contract price.

Plaintiff, in his capacity as "principal investigator," was responsible for quality control in the production of a testing machine, the "biaxial test fixture," which measured complex stresses in metals to be used in the external tanks of the NASA space shuttles. Plaintiff found the testing machine to be deficient and unable to perform its work properly.

A technical review session was held at defendant's offices in July 1974, regarding one of the defendant's projects for NASA. Plaintiff prepared the minutes of the meeting and distributed them to the participants. Plaintiff claims he was directed by a superior to make modifications in the minutes which did not accurately reflect the events of the meeting. Plaintiff maintains he refused to do so.

On a separate occasion, plaintiff claims he was pressured by a superior to attest to the adequacy of a proposed selection of material for another NASA project, a space vehicle known as the "TUG." Plaintiff maintains he refused to write the final report to NASA on the project because of inadequate testing of the materials.

Plaintiff was notified on July 22, 1975, that he would be laid off, and his last day working for defendant was July 25, 1975. Plaintiff filed his complaint initiating this action on July 24, 1981.

The trial court held in abeyance, until after the presentation of plaintiff's evidence, defendant's motions to dismiss the case based on failure to state a claim upon which relief can be granted and the expiration of the pertinent statute of limitations period. After hearing plaintiff's evidence, the trial court granted defendant's motions based upon its conclusion that the statute of limitations barred plaintiff's claim and that Colorado law did not recognize a cause of action for wrongful termination premised on a "whistle blowing" theory.

I.

Plaintiff argues that the trial court erred in granting defendant's motion for directed verdict on the ground that his complaint was filed after the statute of limitations had expired. We agree.

When passing upon a motion for a directed verdict, the trial court must view the evidence in a light most favorable to the party against whom the motion is directed. C.R.C.P. 50; Jasko v. F.W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972).

A claim for relief based upon the public policy exception to the at-will termination rule sounds in tort. See Sussman v. University of Colorado Health Sciences Center, 706 P.2d 443 (Colo.App.1985); Lampe v. Presbyterian Medical Center, 41 Colo.App. 465, 590 P.2d 513 (1978).

Plaintiff contends that the six-year statute of limitations, in effect at times pertinent here, see § 13-80-110, C.R.S., commenced to run on July 26, 1975, the day after he was terminated by defendant. Defendant argues that the six-year statute of limitations commenced on July 22, 1975, when plaintiff was notified of the termination.

To support its position that the statute of limitations runs from the date of notification, defendant relies primarily on Quicker v. Colorado Civil Rights Commission, 747 P.2d 682 (Colo.App.1987). The Quicker holding, however, interprets a different statute than the one at issue here and the difference between the language of the two statutes requires a different result.

The statute in Quicker, § 24-34-403, C.R.S. (1988 Repl.Vol. 10A), states that:

"Any charge ... shall be filed ... within six months after the alleged discriminatory or unfair employment practice occurred." (emphasis added)

Quicker follows those federal cases which conclude that the discriminatory or unfair employment practice occurred when the employer gave notice.

This claim for wrongful discharge is based on the employer's tortious misconduct. The applicable statute of limitations, § 13-80-110 C.R.S., states that such an action shall be commenced within six years after the action accrues. The statute of limitations for a tort action does not begin to run until there has been an injury. Lyons v. Nasby, 770 P.2d 1250 (Colo.1989); Jenkins v. Wine & Dine Inc., 784 P.2d 854 (Colo.App.1989). See W. Prosser, Torts § 30 (5th ed. 1984).

As the North Carolina Court of Appeals stated in Bolick v. American Barmag Corp., 54 N.C.App. 589, 284 S.E.2d 188 (1981):

"The negligence of a defendant confers no right of action upon a plaintiff until the plaintiff suffers an injury proximately caused thereby.... [T]he claims of persons injured ... cannot accrue until the injury, death, or property damage occurs."

Similarly, in a wrongful termination case, the injury is the loss of the employee's job. Thus, the statute of limitations does not begin to run until the job is lost. Accordingly, because the cause of action did not accrue until the plaintiff suffered the injury of losing his job, the trial court erred in granting the defendant's motion.

II.

Plaintiff next argues that the trial court erred in dismissing his case on the basis that plaintiff had not established a prima facie claim of retaliatory discharge pursuant to the public policy exception to the at-will employment rule. We agree.

To prevail on the public policy exception to the at-will employment rule, plaintiff is required to prove: (1) that he refused to perform an action, (2) ordered by his employer, (3) which would violate a specific statute, (4) whose terms are more than a broad, general statement of policy, and (5) that his termination resulted from his refusal. Cronk v. Intermountain Rural Electric Ass'n, 765 P.2d 619 (Colo.App.1988).

Defendant, focusing its attack upon the fourth Cronk element of the claim, first argues that the statute relied upon by plaintiff is a broad statement of policy and is not sufficiently specific to sustain the claim. We disagree.

We conclude that 18 U.S.C. § 1001 (1982) meets the Cronk criteria and that, therefore, plaintiff met this requirement for a wrongful discharge claim. That statute states:

"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."

Several federal courts have determined that 18 U.S.C. § 1001 (1982) is sufficiently definite to survive a constitutional claim that it is void for vagueness. See, e.g., United States v. Matanky, 482 F.2d 1319 (9th Cir.1973), cert. denied, 414 U.S. 1039, 94 S.Ct. 539, 38 L.Ed.2d 329 (1973).

Fraud statutes often contain language such as that found in 18 U.S.C. § 1001 (1982). See, e.g., § 8-81-101, C.R.S. (1986 Repl.Vol. 3B). Courts have generally found statutes which prohibit "fraudulent activity" to be sufficiently specific to meet the requirements of the public policy exceptions to the at-will termination rule and, thus, to provide a basis for a wrongful discharge claim. See Johnson v. World Color Press Inc., 147 Ill.App.3d 746, 101 Ill.Dec. 251, 498 N.E.2d 575 (1986); Trombetta v. Detroit Toledo & Ironton R. Co., 81 Mich.App. 489, 265 N.W.2d 385 (1978). Moreover, the language of 18 U.S.C. § 1001 (1982) is more specific than the statute implicitly found acceptable in Cronk v. Intermountain Rural Electric Ass'n, supra.

Thus, we conclude that 18 U.S.C. § 1001 (1982) is sufficiently specific to support a claim for wrongful termination.

Plaintiff's evidence, if accepted, indicates that he was directed to file a report and transmit minutes of a meeting to NASA officials containing false and misleading statements regarding defendant's work. This evidence further indicates that when he refused to do so he was fired. Accordingly, it was sufficient to constitute a prima facie claim of retaliatory discharge.

III.

Defendant, however, argues the Cronk decision should not be given retroactive effect. In addition, defendant...

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