Mares v. Conagra Poultry Co., Inc.

• Decision Date: 15 July 1991
• Docket Number: Civ. A. No. 91-F-182.
• Citation: 773 F. Supp. 248
• Parties: Carmela MARES, Plaintiff, v. CONAGRA POULTRY COMPANY, INC., a Delaware corporation, d/b/a Longmont Foods, Defendant.
• Court: U.S. District Court — District of Colorado

773 F. Supp. 248

Carmela MARES, Plaintiff, v. CONAGRA POULTRY COMPANY, INC., a Delaware corporation, d/b/a Longmont Foods, Defendant.

Civ. A. No. 91-F-182.

United States District Court, D. Colorado.

July 15, 1991.

COPYRIGHT MATERIAL OMITTED

John S. Evangelisti, Denver, Colo., for plaintiff.

John M. Husband, Judith A. Biggs, Holland and Hart, Denver, Colo., for defendant.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

SHERMAN G. FINESILVER, Chief Judge.

This matter comes before the court on defendant's motion to dismiss or, in the alternative, for summary judgment, filed February 11, 1991. It involves the growing issue of the legitimacy of drug testing in the workplace. On April 4, 1991, we notified the parties that the court would be treating the motion as one for summary judgment. Jurisdiction is based upon 28 U.S.C.A. § 1332 (West Supp.1991). For the reasons stated below, the motion for summary judgment is hereby GRANTED.

I.

Plaintiff Carmela Mares ("Mares") was hired as a benefits clerk by defendant Longmont Foods ("Longmont") on March 1, 1988. On April 24, 1989, Longmont notified its employees that it was instituting a drug testing policy. In addition to submitting to drug testing, Longmont required its employees to provide a form disclosing any medications being taken and authorizing the named physician to release to Longmont any information concerning the use of the specified medications. Plaintiff was terminated on June 23, 1991, for refusing to sign the consent form.

On February 5, 1991, this action was removed pursuant to 28 U.S.C.A. § 1441(a) (West Supp.1991) from the Boulder County District Court. The complaint asserts six causes of action for (i) breach of contract, (ii) violation of public policy, (iii) intentional infliction of emotional distress, (iv) negligent or intentional interference with prospective economic advantage, (v) invasion of privacy, and (vi) constitutional torts and civil rights violations. Defendant filed the instant motion to dismiss or, in the alternative, for summary judgment on February 11, 1991. Defendant's brief included material outside the pleadings. Fed.R.Civ.P. 12(b) provides, in pertinent part,

"if, on a motion asserting the defense numbered (6) to dismiss for failure of a pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

As we are not excluding the materials presented, we are required to treat the motion as one for summary judgment and dispose of it as provided in Fed.R.Civ.P. 56. Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972); M.S. News Co. v. Casado, 721 F.2d 1281, 1285 (10th Cir.1983).

Under the express language of the rule, all parties must be given reasonable opportunity to present pertinent material. T.V. Communications v. ESPN, Inc., 767 F.Supp. 1062 (D.Colo.1991). The parties were given notice that the motion would be treated as one for summary judgment on April 4, 1991. Additional materials were submitted by both sides.

II.

Summary judgment is now regarded as an acceptable procedural device. Evans v. Board of County Comm'rs, 752 F.Supp. 973, 974 (D.Colo.1990). It is an integral, vibrant part of the Federal Rules of Civil Procedure. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554-55, 91 L.Ed.2d 265 (1986). Granting summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Lucas v. Mountain States Tel. & Tel. Co., 909 F.2d 419, 420 (10th Cir.1990). A genuine issue of material fact exists only where there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th Cir.1990); Vaske v. DuCharme, McMillen & Assocs., Inc., 757 F.Supp. 1158, 1160 (D.Colo.1990). Only disputes over facts that might affect the outcome of the case will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allen v. Dayco Prods., Inc., 758 F.Supp. 630, 631 (D.Colo.1990).

In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion. Newport Steel Corp. v. Thompson, 757 F.Supp. 1152, 1155 (D.Colo. 1990). All doubts must be resolved in favor of the existence of triable issues of fact. Lucas, 909 F.2d at 420; Anderson v. Department of Health and Human Servs., 907 F.2d 936, 946-47 (10th Cir.1990).

In a motion for summary judgment, the moving party's initial burden is slight. Fed.R.Civ.P. 56 does not require the movant to negate the opponent's claim. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. Rather, the moving party must allege an absence of evidence to support the opposing party's case and identify supporting portions of the record. Id.

Once the movant has made an initial showing, the burden of proof shifts to the opposing party. Anderson v. Department of Health and Human Servs., 907 F.2d at 947. The nonmovant must establish that there are issues of material fact to be determined. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. The nonmovant must go beyond the pleadings and designate specific facts showing that there are genuine issues for trial on every element challenged by the motion. Allen, 758 F.Supp. at 632. Conclusory allegations will not establish an issue of fact sufficient to defeat summary judgment. McVay v. Western Plains Serv. Corp., 823 F.2d 1395, 1398 (10th Cir. 1987).

In reviewing the evidence submitted, the court should grant summary judgment only when there is clearly no issue of material fact remaining. Summary judgment should be granted if the pretrial evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. In the instant matter, the court finds that, as a matter of law, the motion for summary judgment must be granted.

III.

Defendant generally argues that plaintiff's causes of action should not survive as she acquiesced in the new terms of employment by continuing to work after the institution of the drug testing program. Pittman v. Larson Distrib. Co., 724 P.2d 1379, 1384 (Colo.App.1986). While this argument is somewhat persuasive, questions of fact would seem to surround such an inquiry. We believe that the causes of action should be handled on much more substantive grounds.

IV.

Plaintiff's first cause of action seeks relief for breach of contract. The second cause of action seeks relief for violations of public policy. Mares does not contend that an employment contract had been formed. In the absence of an employment contract, any employment relationship is terminable at-will by either party. Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo.1987); Cronk v. Intermountain Rural Elec. Ass'n, 765 P.2d 619, 622 (Colo.App.1988); accord Garcia v. Aetna Fin. Co., 752 F.2d 488, 491 (10th Cir.1984). An at-will employee may be terminated without cause, without notice, and any such discharge does not give rise to a claim for relief. Hoff v. Amalgamated Transit Union, 758 P.2d 674, 678 (Colo.App.1987), cert. denied, slip op. (Colo. 1988); Therrien v. United Air Lines, Inc., 670 F.Supp. 1517, 1523 (D.Colo.1987).

Colorado has two narrow exceptions to the employment at-will doctrine: (i) implied contract rights or promissory estoppel arising out of company policy and employment manuals, and (ii) claims for wrongful discharge in retaliation for the exercise of statutory rights or duties, a public policy exception. Allen, 758 F.Supp. at 633; Vaske, 757 F.Supp. at 1161-62. We do not believe that plaintiff can benefit from either exception. See Friesen, Drug Testing in Colorado: Problems & Advice for Private Employers, 19 Colo.Law. 413, 416, 418 (1990).

Plaintiff does not allege that she enjoyed implied contract rights based upon company policies or employment manuals. Instead, plaintiff asserts that she was fired in retaliation for exercising statutory rights under Colo.Rev.Stat. § 13-90-107(1)(d) (Bradford 1987).

The Colorado courts have never addressed this statute in the context of an action for wrongful termination. It provides that

"a physician, surgeon, or registered professional nurse duly authorized to practice his profession ... shall not be examined without the consent of his patient as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient."

We must predict how Colorado's highest court would rule on enlarging this public policy exception to include such behavior. Weiss v. United States, 787 F.2d 518, 525 (10th Cir.1986); Terry v. Avemco Ins. Co., 663 F.Supp. 39, 41 (D.Colo.1987); Reighley v. International Playtex, Inc., 604 F.Supp. 1078, 1081 (D.Colo.1985).

The Colorado courts have held that causes of action under the public policy exception may proceed in two situations. First, claims have been allowed when the discharge was in retaliation for employees exercising their rights under Colorado's workers' compensation law. Lathrop v. Entenmann's, Inc., 770 P.2d 1367 (Colo. App.1989)¹; accord Miedema v. Browning-Ferris Indus., Inc., 716 F.Supp. 1369, 1371-72 (D.Colo.1989). Plaintiff has not asserted that she was discharged in retaliation for seeking workers' compensation benefits. Second, suits have been permitted to proceed when employees had been directed by their employers to violate certain statutes, subjecting them to criminal liability. Cronk, 765 P.2d at 622; Lorenz v. Martin Marietta Corp., 802 P.2d 1146, 1149 (Colo.App.1990). Mares does not allege that she had been directed to violate...