Miedema v. BROWNING-FERRIS INDUSTRIES OF COLORADO

• Decision Date: 31 July 1989
• Docket Number: No. 88-C-1034.,88-C-1034.
• Parties: James MIEDEMA, Plaintiff, v. BROWNING-FERRIS INDUSTRIES OF COLORADO, INC., Defendant.
• Court: U.S. District Court — District of Colorado

716 F. Supp. 1369

James MIEDEMA, Plaintiff, v. BROWNING-FERRIS INDUSTRIES OF COLORADO, INC., Defendant.

No. 88-C-1034.

United States District Court, D. Colorado.

July 31, 1989.

Glenn A. Bergmann, Lakewood, Colo., for plaintiff.

John N. McNamara, Jr., Baker & Hostetler, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

Plaintiff James Miedema has filed this diversity suit against his former employer, the defendant Browning-Ferris Industries of Colorado, asserting a single claim for wrongful discharge. Plaintiff contends that his employment was wrongfully terminated in contravention of public policy, that is, in retaliation for his pursuit of a course of action statutorily mandated by the Colorado Worker's Compensation Act, Colo. Rev.Stat. §§ 8-40-101 et seq.

Defendant has moved for summary judgment on the following grounds: (1) that the Colorado Worker's Compensation Act provides the plaintiff's sole remedy; (2) that the plaintiff's wrongful discharge claim is precluded because his firing occurred prior to his worker's compensation claim application; and (3) the plaintiff cannot establish causation between his discharge and his worker's compensation claim. Plaintiff has responded by opposing the motion.

The parties have fully briefed the issues and oral argument would not materially assist my decision. Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332.

I. Factual Discussion.

Plaintiff commenced his employment with the defendant as a "swing driver" in November 1975. As a "swing driver," he was familiar with the defendant's waste collection routes and filled in for other drivers on an emergency basis. Plaintiff, an experienced driver, thus was "on call." His occupation required rigorous physical activity.

In mid-1981, the plaintiff's supervisor, David L. Ohlmacher, terminated the plaintiff's employment because he failed to report to work. However, the defendant rehired the plaintiff in the fall of 1983. On December 31, 1983, the plaintiff was seriously injured while on duty when he was crushed between a dumpster and a garbage truck. He received medical treatment for his injuries at the defendant's expense. Defendant maintained the plaintiff on the payroll during his recovery period. Plaintiff asserts that he was required to perform training and customer contact duties, and that he was further required to ride in a truck with another driver. Plaintiff contends that, as a result of his injuries, he continued to be disabled in varying degrees throughout the following months and years.

The facts are somewhat unclear on whether the plaintiff sustained a new injury in May 1986. Plaintiff alleges that in May 1986, while on duty, his right leg was dislocated from the hip joint. He states in an affidavit that on June 18, 1986 he advised his supervisor, Ohlmacher, and the defendant's safety director, one Elms, that he could not straighten his back or step up or down with his right leg. Plaintiff further states that on June 19, 1986, he asked to take the next day off to go to the doctor, but Ohlmacher refused. Instead, Ohlmacher made a doctor's appointment for the plaintiff on a date three weeks later, and insisted that the plaintiff work on June 20, 1986, which he did.

According to the plaintiff, his condition became worse over the weekend. Plaintiff called "the office" at 4:40 a.m. on Monday morning (June 23, 1986) and advised Bob Pierce that he could not get out of bed. Plaintiff admits that he did not call Ohlmacher. However, Ohlmacher contacted the plaintiff during the week concerning the plaintiff's medical condition and advised that someone from the office would call on him to give him (the plaintiff) insurance information. However, no one called on the plaintiff. Plaintiff states that he went to the office on Thursday, June 26, 1986, and at that time was advised by Ohlmacher that he was fired.

Defendant states a different version of the facts. Defendant asserts that on June 19, 1986, the plaintiff complained to Ohlmacher, his supervisor, of a nagging back and leg injury, and asked to take the following day off to see a chiropractor. Ohlmacher states in an affidavit that he approved the leave time, but advised the plaintiff that he might have to cancel the appointment if a work emergency arose. Plaintiff was required to fill in for another driver on June 20, but Ohlmacher further states that the plaintiff did not complain about needing to see the chiropractor that particular day. See Ohlmacher's affidavit.

According to the defendant, the plaintiff did not return to work until Monday, June 30, 1986. Defendant further contends that the plaintiff did not telephone Ohlmacher or any of the defendant's other employees to report the reason for his absence. On June 25, 1986, Ohlmacher decided to terminate the plaintiff's employment because of his failure to report to work. When the plaintiff reported on June 30, Ohlmacher refused to reinstate him to his job.

In his deposition, the plaintiff stated the following regarding his understanding as to the reason for his employment termination:

"Q. Why do you say you were fired?

A. I was fired because I was hurt.

Q. And you've testified that you first exercised your rights or started the procedure with worker's comp about a week after you were fired?

A. Yes. The exact dates, I'm not sure of, but it had to be that time before I realized what was going on.

Q. Okay. But there is no doubt in your mind that this occurred with worker's comp after you were fired?

A. Yeah.

Q. Okay. So your testimony is, then, I take it, that you were fired because you were hurt?

A. Yeah.

Q. Not necessarily that you were trying to exercise your rights under worker's comp, correct?

A. Yes."

Plaintiff's deposition, p. 55, lines 2-17, dated October 19, 1988.

Neither party disputes that the plaintiff filed an application for worker's compensation benefits on July 8, 1986, claiming a permanent disability. On August 26, 1986, a hearing was held on the plaintiff's request for temporary disability and medical benefits. An order was issued November 17, 1986, requiring the defendant to pay (a) temporary total disability benefits for June 28, 1986 through August 31, 1986, and continuing from December 20, 1986 until further order; (b) temporary partial disability benefits from September 1, 1986 through December 19, 1986; and (c) benefits for medical treatments. Defendant has contested these awards on appeal.

At the time of the plaintiff's employment termination, he had been promoted to a supervisory level and was earning in excess of $45,000 annually. Plaintiff filed the instant lawsuit on June 30, 1988.

II. Legal Discussion and Conclusion.

Plaintiff sets forth his claim for relief in the complaint as follows:

"8. Plaintiff was terminated from his job on June 26, 1986 for seeking medical treatment for continuing debilitating complications growing out of his original injury. Plaintiff was advised by a supervisory representative of the Defendant, Mr. Olmacher Ohlmacher, that plaintiff would have to pay his own medical expenses, and that he (Plaintiff) was terminated."

"9. Plaintiff alleges that he was wrongfully terminated by the Defendant in contravention of an important public policy recognized in Colorado. That policy being, that an employee may not be discharged for pursuing mandated course of action. In this case, 1973 C.R.S. 8-40-101, et sequa, the `Workmen's Compensation Act of Colorado.'" Complaint at paras. 8 and 9.

In Colorado, a plaintiff may maintain a claim for relief against his employer for wrongful discharge from employment in limited circumstances. These limited circumstances include an employee's discharge for exercising a specific statutory right or duty, such as the right to file for worker's compensation or the duty to serve on a jury. Brooks v. Trans World Airlines, Inc., 574 F.Supp. 805, 809 (10th Cir. 1983). See also, Lampe v. Presbyterian Medical Center, 41 Colo.App. 465, 590 P.2d 513 (1978) and Corbin v. Sinclair Mktg., Inc., 684 P.2d 265 (Colo.App.1984). Recently, the Colorado Court of Appeals held that a plaintiff who alleges that he or she was constructively discharged in retaliation for filing a worker's compensation claim states a valid claim for relief. Lathrop v. Entenmann's, Inc., 770 P.2d 1367 (Colo.App. 1989). A claim for retaliatory discharge, therefore, based on the employee's filing for worker's compensation benefits is actionable in Colorado.

In the instant case, the plaintiff was fired on June 26, 1986 and filed for worker's compensation benefits on July 8, 1986. Defendant...