Price v. Federal Exp. Corp.

• Decision Date: 18 May 1987
• Docket Number: Civ. A. No. 85-K-600.
• Citation: 660 F. Supp. 1388
• Parties: Patrick PRICE, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant.
• Court: U.S. District Court — District of Colorado

660 F. Supp. 1388

Patrick PRICE, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant.

Civ. A. No. 85-K-600.

United States District Court, D. Colorado.

May 18, 1987.

Barry Roseman, Denver, Colo. for plaintiff.

William A. Tuthill, III, Pendleton & Sabian, Denver, Colo. for defendant.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This civil rights and breach of contract case involves an employment dispute in which plaintiff, Patrick Price, alleges his employer, Federal Express Corporation, breached express and implied covenants of good faith and fair dealing, engaged in outrageous conduct, and violated provisions of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 1981 and 2000e-3(a).

Jurisdiction is asserted under 28 U.S.C. §§ 1331 and 1332. The case is before me on Federal Express' motion for summary judgment.

I. BACKGROUND

Patrick Price is a male Caucasian citizen of the United States and was employed by Federal Express Corporation from December 20, 1976, until January 22, 1984. He satisfactorily advanced in pay and job responsibility throughout his employment. On February 1, 1982, Federal Express promoted him to the management position of operations supervisor in Salt Lake City, Utah. While serving as operations manager in Salt Lake City, plaintiff had the authority to discharge employees under his supervision, provided he had the concurrence in such a decision of: (1) his immediate supervisor, (2) the Federal Express district supervisor, and (3) the Federal Express zone personnel manager.

In August, 1983, Price terminated the employment of Karen ("Penny") Lathon, an hourly employee under his supervision along with two other hourly employees under his supervision. In firing Ms. Lathon, Price obtained the requisite concurrence of the three supervisors outlined above. Ms. Lathon, a Black female citizen of the United States, filed an internal complaint of race discrimination under Federal Express' "Guarantee of Fair Treatment Program." The Federal Express supervisors did not concur with Price's decision to fire the non-black employees. Consequently, in addition to claiming she was fired because of her race, Ms. Lathon's claim also contained a second, separate allegation of race discrimination against Federal Express agents exclusive of Price, namely, Federal Express' subsequent re-instatement of two non-black employees for conduct similar to Ms. Lathon's. Thus, Federal Express supervisors re-instated the two non-black employees to their former positions while Ms. Lathon was not similarly reinstated to her former position.

Price testified, assisted, and participated in Federal Express' internal investigation of Ms. Lathon's complaint of race discrimination. Moreover, he provided information which supported Lathon's complaint of disparate treatment and which implicated Federal Express' district director and zone personnel manager in the unlawful employment practice allegedly perpetrated against Ms. Lathon. On November 7, 1983, Price was transferred to Denver, Colorado and remained an operations manager.

Price asserts that because of his participation in the prosecution of Ms. Lathon's race discrimination claims against Federal Express and its agents, Federal Express has subjected him to, inter alia, harassment and investigation of misconduct, coercion in accepting a lateral transfer to Denver, and constructive discharge. He also charges defendant took actions so as to preclude him from obtaining employment in Portland, Oregon.

II. STANDARD OF DECISION

The established litany tells us that summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.Proc. In determining the existence of any genuine issue of material fact, the record is construed in the light most favorable to the party opposing the motion. Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980). However, the adverse party "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e).

III. FEDERAL EXPRESS' MOTION FOR SUMMARY JUDGMENT

Defendant's motion requests summary judgment on plaintiff's first, second, third, fourth, and fifth claims for relief.

A. First Claim for Relief: Violation of the Civil Rights Act of 1964.

In plaintiff's first claim for relief, he alleges defendant retaliated against him because he had opposed defendant's discharge of Ms. Lathon and because of his adverse actions against defendant in testifying, assisting, and participating in defendant's investigation of Ms. Lathon's race discrimination complaint.

In its brief in support of the motion for summary judgment, defendant does not controvert plaintiff's allegations. Rather, defendant argues plaintiff cannot prevail because he cannot establish defendant's discharge of Ms. Lathon was motivated by race.

At once, a genuine issue of material fact arises regarding defendant's conduct toward plaintiff which defendant does not even address. Further, defendant fails to recognize a white plaintiff may file a retaliation claim under 42 U.S.C. § 1981 or § 1982 where the white plaintiff objects to what he or she believed to be racially discriminatory conduct against a non-white person. Sullivan v. Little Hunt Park, 396 U.S. 229, 237, 90 S.Ct. 400, 404-05, 24 L.Ed.2d 386 (1969) (a community recreational corporation cannot legally expel a white member for advocating the cause of a Black seeking membership; the expelled member has standing to sue under 42 U.S.C. § 1982). Accordingly, the motion for summary judgment on the first claim is denied. Defendant's motivation for its conduct toward plaintiff is a genuine issue of material fact which must be decided by a jury. Further, this claim is cognizable and the white plaintiff has standing to sue for the conduct alleged.

B. Second Claim for Relief: Constructive Discharge.

Related to the civil rights claim, defendant argues plaintiff's claim for constructive discharge is actionable under § 1981 only if a plaintiff can show the employer's actions were intended as an effort to force the employee to quit. The Tenth Circuit, however, recently held in Derr v. Gulf Oil Corp. 796 F.2d 340, 343-44 (10th Cir.1986), that proof of constructive discharge is determined by an objective standard (not a subjective "intent" standard), depending upon "whether a reasonable person would view the working conditions as intolerable." The Tenth Circuit quoted, with approval, the District of Columbia Circuit's observation that

"to the extent that the employer denies a conscious design to force the employee to resign, we note that an employer's subjective intent is irrelevant; the employer must be held to have intended those consequences it could reasonably have foreseen." (emphasis added).

Clark v. Marsh, 665 F.2d 1168, 1175 n. 8 (D.C.Cir.1981).

Thus, the constructive discharge claim survives the motion for summary judgment, a showing of subjective intent is not necessary for the claim to survive.

C. Plaintiff's Third and Fourth Claims: Good Faith and Fair Dealing.

Plaintiff's third claim for relief alleges a breach of an implied covenant of good faith and fair dealing. His fourth claim for relief alleges defendant expressly represented it would treat its employees fairly thus constituting an expressed covenant of good faith and fair dealing which it allegedly breached.

Defendant argues plaintiff has not alleged, nor do the facts support, the existence of a fixed term to plaintiff's employment. Because there was no fixed term, defendant asserts plaintiff's employment contract was a contract of employment at will. "Absent special consideration or an express stipulation, an indefinite general hiring is terminable by the employer at will. Lampe v. Presbyterian Medical Center, 41 Colo.App. 465, 590 P.2d 513 (1978)." Defendant's motion at 7.

Plaintiff alleges, however, "special consideration" and "an express stipulation" of sorts based on certain representations made to him by defendant.

1. Implied good-faith and fair dealing.

Plaintiff argues Colorado recognizes an implied covenant of good faith and fair dealing as described in the Restatement (Second) of Contracts, § 205 (1981) as follows:

Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.

See Ruff v. Yuma County Transp. Co., 690 P.2d 1296, 1298 (Colo.App.1984). In Ruff, the implied covenant of good faith and § 205 was recognized as a cognizable claim in Colorado when the agreement between the parties included the following language:

The parties agree to fully cooperate and use their best efforts in the preparation and the prosecution of applications referred to herein.

Ruff at 1298.

Just as the defendant in Ruff, supra, represented it would use its "best efforts" to complete the contract, defendant in the instant case represented to plaintiff, via the policy manual and the company newspaper, that each employee is guaranteed fair treatment and equitable dealing. Although the instant case involves representations made outside the provisions of the contract, such representational provisions operate as if they were written in the contract. See Brooks v. Trans World Airlines, Inc., 574 F.Supp. 805 (D.Colo.1983), discussed infra; see also Continental Airlines, Inc. v. Keenan, 731 P.2d 708 (Colo. 1987), discussed infra.

Plaintiff also argues Colorado recognizes the statutory obligation of good faith contained in the Uniform Commercial Code, Colo.Rev.Stat. § 4-1-203 (1986).¹ See Layne v. Fort Carson National Bank, 655 P.2d 856 (Colo.App.1982). The statute and the case law, however, applying the...