Robert C. Ozer, P.C. v. Borquez

• Decision Date: 23 June 1997
• Docket Number: No. 96SC13,96SC13
• Citation: 940 P.2d 371
• Parties: 71 Empl. Prac. Dec. P 44,794, 12 IER Cases 1665, 21 Colorado Journal 851 ROBERT C. OZER, P.C., d/b/a Ozer and Mullen, P.C.; and Robert C. Ozer, Petitioners, v. Robert P. BORQUEZ, Respondent.
• Court: Colorado Supreme Court

Page 371

940 P.2d 371

71 Empl. Prac. Dec. P 44,794, 12 IER Cases 1665,

21 Colorado Journal 851

ROBERT C. OZER, P.C., d/b/a Ozer and Mullen, P.C.; and Robert C. Ozer, Petitioners, v. Robert P. BORQUEZ, Respondent.

No. 96SC13.

Supreme Court of Colorado En Banc.

June 23, 1997.

Ozer & Ozer, P.C., Renee C. Ozer, Denver, for Petitioners.

Collins & Pringle, Dwight L. Pringle, Denver, Roger P. Borquez, Denver, for Respondent.

Thomas A. Feldman, Denver, for Amicus Curiae Plaintiff Employment Lawyers Association.

Chief Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to review the court of appeals decision in Borquez v. Robert C. Ozer, P.C., 923 P.2d 166 (Colo.App.1995). The court of appeals affirmed the trial court's judgment entered upon a jury verdict in favor of the respondent, Robert Borquez (Borquez), in his claims for wrongful discharge and invasion of privacy. We granted certiorari to address the following issues: (1) whether the court of appeals correctly held that the jury verdict on wrongful discharge based on sexual orientation was supportable as a violation of section 24-34-402.5(1), 10A C.R.S. (1996 Supp.); (2) whether the court of appeals correctly recognized an invasion of privacy tort claim based on unreasonable publicity given to one's private life; and (3) whether the court of appeals correctly held that the jury was properly instructed on the invasion of privacy tort claim.

We hold that, as to issue one, the court of appeals erroneously relied on section 24-34-402.5(1) in affirming the jury verdict; we therefore reverse the court on this issue. As to issue two, we affirm the court of appeals' recognition of a tort claim for invasion of privacy in the nature of unreasonable publicity given to one's private life. However, as to issue three, we reverse the court of appeals because in the current case, the trial court erroneously instructed the jury on the public disclosure requirement of this tort claim. We therefore affirm in part and reverse in part, and remand to the court of appeals with directions to return the case to the trial court for a new trial.

I.

In June of 1990, Borquez began working as an associate attorney for Ozer & Mullen, P.C. (the Ozer law firm). During his employment with the Ozer law firm, Borquez received three merit raises, the last of which was awarded on February 15, 1992, eleven days prior to his termination.

On February 19, 1992, Borquez, who is homosexual, learned that his partner was diagnosed with Acquired Immune Deficiency Syndrome (AIDS). Borquez' physician advised him that he should be tested for the human immunodeficiency virus (HIV) immediately. Borquez was anxious about his health and determined that he could not effectively represent a client in a deposition that afternoon and an arbitration hearing the following day. Borquez subsequently telephoned his secretary and attempted to arrange for a colleague to fill in for him at the deposition and hearing. Borquez' secretary and another staff member told the president and shareholder of the law firm, Robert Ozer (Ozer), about Borquez' telephone call. Ozer then directed Borquez' secretary to transfer to him any further telephone calls from Borquez.

Borquez and Ozer subsequently spoke twice on the telephone. During the second conversation, Borquez decided that he would disclose his situation to Ozer. Borquez asked Ozer to keep the information he was about to disclose confidential, but Ozer made no reply. Borquez then told Ozer that he was homosexual, that his partner had been diagnosed with AIDS, and that he needed to be tested for HIV. Ozer responded by stating that he would handle the deposition and arbitration hearing and that Borquez should "do what [he needed] to do."

After speaking with Borquez, Ozer telephoned his wife, Renee Ozer, and told her of Borquez' disclosure. ¹ Additionally, Ozer informed the law firm's office manager about Borquez' situation and discussed Borquez' disclosure with two of the law firm's secretaries. On February 21, 1992, Borquez returned to the office and became upset when he learned that everyone in the law firm knew about his situation. Later that afternoon, Ozer met with Borquez and told him that Ozer had not agreed to keep Borquez' disclosure confidential.

On February 26, 1992, one week after Borquez made his disclosure to Ozer, Borquez was fired. The Ozer law firm asserted that Borquez was terminated due to the law firm's poor financial circumstances. Borquez filed suit against the Ozer law firm and against Ozer as an individual, claiming wrongful discharge and invasion of privacy. Borquez alleged that he was discharged in violation of section 24-34-402.5(1), 10A C.R.S. (1996 Supp.) ("the lawful activities statute"), which makes it an unfair and discriminatory labor practice to discharge an employee based upon the employee's lawful activities outside the workplace. Borquez also contended that his termination violated the anti-discrimination provisions of the City and County of Denver Revised Municipal Code ("the Denver ordinance"), which makes it unlawful for a private employer to discharge an employee in the City and County of Denver on the grounds that the employee is homosexual. Borquez further asserted that Ozer violated his right to privacy by disseminating private facts which Borquez had revealed and requested remain confidential. In addition to compensatory damages, Borquez sought exemplary damages for his discharge in violation of the lawful activities statute and the Denver ordinance, and for the violation of his right to privacy.

On July 12, 1993, a five-day trial commenced in this case. At the beginning of the trial, due to uncertainty regarding the validity of the Denver ordinance, ² the trial court suggested that it avoid trying the case based specifically on the Denver ordinance or the lawful activities statute. Instead, the trial court proposed that the case be tried "to decide factually whether ... the discharge was for sexual orientation or for some other reason." The trial court thus instructed the jury that Borquez was entitled to recover from Ozer and the Ozer law firm on his claim of wrongful discharge if the jury found that Borquez "would not have been dismissed but for his sexual orientation." The jury found in favor of Borquez and awarded him damages totaling $90,841. The jury set compensatory damages at $30,841 for the wrongful discharge claim and $20,000 for the invasion of privacy claim, and awarded exemplary damages in the sum of $40,000.

Ozer and the Ozer law firm appealed the trial court's entry of judgment in favor of Borquez, asserting inter alia that the jury's verdict on the wrongful discharge claim was erroneously based on the Denver ordinance because the ordinance did not imply a private cause of action and because the ordinance was barred by section 30b of Article II of the Colorado Constitution ("Amendment 2"). ³ Ozer and the Ozer law firm further argued that the jury's verdict on Borquez' invasion of privacy claim should be reversed because (a) Colorado does not recognize a tort for invasion of privacy in the nature of "unreasonable publicity given to the life of another"; (b) the evidence in this case did not support a claim for invasion of privacy; and (c) the jury instructions for the invasion of privacy claim were incorrect. Borquez cross-appealed the trial court's refusal to enter judgment pursuant to the lawful activities statute and the court's denial of nearly all of his costs.

The court of appeals affirmed the trial court's entry of judgment in favor of Borquez. The court of appeals declined to address whether the jury verdict on the wrongful discharge claim was supported by the Denver ordinance, but the court affirmed the verdict by concluding that it was supported by the lawful activities statute. The court of appeals also recognized an invasion of privacy tort claim based on unreasonable publicity given to one's private life and found that the jury instructions regarding this claim did not constitute reversible error.

II.

The first issue before us is whether the court of appeals correctly held that the jury verdict on wrongful discharge based on sexual orientation was supportable as a violation of the lawful activities statute.

The lawful activities statute provides as follows:

It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of an employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours....

§ 24-34-402.5(1), 10A C.R.S. (1996 Supp.) (emphasis added). According to the language of the lawful activities statute, a jury instruction submitted pursuant to this statute would necessarily include an element providing that the employee was discharged because he or she engaged in lawful activity away from the employer's premises during nonworking hours.

In contrast, the Denver ordinance provides as follows:

(a) Generally. It shall be a discriminatory practice to do any of the following acts based upon the race, color, religion, national origin, gender, age, sexual orientation, marital status or physical or mental disability of any individual who is otherwise qualified:

(1) By an employer: To fail or to refuse to hire an applicant or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment....

Denver, Colo., Revised Municipal Code § 28-93(a)(1) (1991) (emphasis added). According to the language of the Denver ordinance, a jury instruction submitted pursuant to this ordinance under the facts of this case would necessarily include an element providing that the employee was discharged due to his or her sexual orientation.

In the current case, Borquez requested a jury instruction worded pursuant to the Denver ordinance and a separate jury instruction worded pursuant to the lawful...