Slaughter v. JOHN ELWAY DODGE SOUTHWEST, No. 03CA1346.

• Decision Date: 13 January 2005
• Docket Number: No. 03CA1346.
• Citation: 107 P.3d 1165
• Parties: Melynda SLAUGHTER, Plaintiff-Appellant, v. JOHN ELWAY DODGE SOUTHWEST/AUTONATION, Defendant-Appellee.
• Court: Colorado Court of Appeals

107 P.3d 1165

Melynda SLAUGHTER, Plaintiff-Appellant, v. JOHN ELWAY DODGE SOUTHWEST/AUTONATION, Defendant-Appellee.

No. 03CA1346.

Colorado Court of Appeals, Div. IV.

January 13, 2005.

Gregg C. McReynolds, LLC, Gregg C. McReynolds, Denver, Colorado, for Plaintiff-Appellant.

Holland & Hart LLP, Alan D. Schuchman, Megan C. Bertron, Denver, Colorado, for Defendant-Appellee.

Opinion by: Judge CARPARELLI.

Plaintiff, Melynda Slaughter, sued her employer, defendant, John Elway Dodge Southwest/AutoNation, for wrongful termination and now appeals the trial court's judgment dismissing her complaint for failure to state claims upon which relief may be granted. We affirm.

Because this appeal challenges the trial court's dismissal on grounds of failure to state a claim, the following summary of facts is based solely on the allegations in employee's complaint.

Employee alleges that when she was hired, she was told she would be required to submit to a drug test to qualify for the position. Shortly after she began working, she consented when employer took a hair sample from her for the drug test. She continued her employment, heard nothing more about the drug test, and was promoted and given a raise.

Nearly a year after she was hired, employer informed her that it had overlooked the drug test result, which was positive for marijuana. Employer informed her that she could take another drug test, resign, or be terminated. Employee volunteered that she occasionally used marijuana for recreational purposes, but never used marijuana at work and was never under its influence while at work.

The next day, employer told employee she had to submit a hair sample that day or she would be terminated. Employee consented, and a hair sample was taken. The following day employer told her the drug test had been inconclusive and requested that she submit another hair sample. When employee refused, employer told her that she would be terminated.

About a month later, without filing a complaint, employee filed a motion for a temporary restraining order and, on the same day, served a copy on employer's in-house attorney. The court declined to enter a restraining order, but set the matter for a preliminary injunction hearing. A week after employee filed her motion, her counsel received a faxed letter from employer's counsel stating that employee had been terminated effective the same day she filed the motion. After receiving the letter, employee withdrew her motion and informed employer's counsel she would file suit for wrongful termination.

Employee's complaint stated two claims for relief. One claim alleged the termination was retaliation for her motion for a temporary restraining order and, thus, violated public policy as expressed in the Freedom of Legislative and Judicial Access Act (Act), § 8-2.5-101, C.R.S.2004. The other claim alleged the termination was wrongful because it was retaliation for her refusal to submit to the drug test and, thus, violated public policy against private interference with her right to privacy.

The trial court dismissed both claims in response to employer's motion under C.R.C.P. 12(b)(5) concluding that employee failed to state a claim for which relief could be granted.

I. Standard of Review

We review motions to dismiss de novo and accept all statements of material fact contained in the complaint as true. Shapiro & Meinhold v. Zartman, 823 P.2d 120 (Colo.1992). We construe those allegations in the light most favorable to the plaintiff and do not look outside the complaint. Dunlap v. Colo. Springs Cablevision, Inc., 829 P.2d 1286 (Colo.1992); McDonald v. Lakewood Country Club, 170 Colo. 355, 461 P.2d 437 (1969). We will not uphold a dismissal on motion for failure to state a claim so long as the plaintiff may be entitled to some relief upon any theory of the law. Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095 (Colo.1995).

II. Wrongful Termination of At-Will Employment

An employment agreement for an indefinite term is presumed to establish an at-will relationship that either party may terminate at any time with or without cause. Cont'l Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987). However, a contract provision that permits termination of an at-will employment contract is unenforceable when it violates public policy. Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo.1992). As pertains here, an employee may have a cause of action when the employer directs the employee, and the employee refuses, to perform an act that "would undermine a clearly expressed public policy relating to the employee's basic responsibility as a citizen or the employee's right or privilege as a worker." Martin Marietta Corp. v. Lorenz, supra, 823 P.2d at 109.

A clearly expressed public policy is one that is "clearly mandated such that the acceptable behavior is concrete and discernible as opposed to a broad hortatory statement of policy that gives little direction as to the bounds of proper behavior." Rocky Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 525 (Colo.1996).

Courts are reluctant to give public policy an expansive definition because it would cloud the limits of the exception to at-will employment. Rocky Mountain Hosp. & Med. Serv. v. Mariani, supra.

III. Alleged Violation of Public Policy Regarding Access to the Courts

Employee contends that the court erred when it dismissed her second claim for relief alleging that employer violated public policy regarding access to the courts as reflected in § 8-2.5-101. We disagree.

Section 8-2.5-101 makes it a misdemeanor for any person

to adopt or enforce any rule, regulation, or policy forbidding or preventing any of its employees, franchisees, or agents or entities under its control or oversight from, or to take any action against its employees, franchisees, or agents or entities under its control or oversight solely for testifying before a committee of the general assembly or a court of law or speaking to a member of the general assembly at the request of such committee, court, or member regarding any action, policy, rule, regulation, practice, or procedure of any person or regarding any grievance relating thereto.

Section 8-2.5-101(1)(a), C.R.S.2004.

In addition, § 8-2.5-101(2)(a), C.R.S.2004, entitles a person to recover damages for injuries suffered as a result of a violation of the statute.

When interpreting a statute, we must give effect to the intent of the General Assembly. To do so, we first look to the plain language of the statute. Schoen v. Morris, 15 P.3d 1094 (Colo.2000). When the language is clear, we apply that language according to its plain and ordinary meaning. Vaughan v. McMinn, 945 P.2d 404 (Colo.1997).

This statute clearly expresses public policy regarding employees' responsibilities as citizens to honor requests for testimony from courts and from committees and members of the General Assembly. It also clearly expresses public policy regarding an employee's right to be free from employer rules, regulations, or policies that would forbid or prevent the employee from fulfilling those responsibilities and to be free from termination or other adverse employment action solely for fulfilling them.

However, contrary to employee's assertion, we conclude that § 8-2.5-101 does not clearly mandate a general public policy protecting access to the courts. Although it concretely and discernibly prohibits employers from forbidding or preventing employees from honoring requests for their testimony, it provides no direction limiting employers' conduct when employees initiate legal action against them. As is pertinent here, we perceive no basis to conclude that the statute clearly expresses a public policy that forbids an employer from terminating an employee for filing a motion or a lawsuit against the employer.

Here, employee did not allege that employer prohibited her from honoring a request to testify from a court or the General Assembly. Nor did she allege that employer terminated her for honoring such a request. Instead, she alleged she was terminated because she filed a motion for a temporary restraining order.

Therefore, we conclude that employee did not state a claim upon which relief may be granted for a violation of the public policy clearly expressed in § 8-2.5-101.

IV. Alleged Violation of Public Policy Relating to Employee Privacy Rights

Employee also contends the court erred when it dismissed her first claim for relief because employer violated public policy protecting her right to privacy. She argues that this court should prevent private employers from requiring employee drug tests absent reasonable suspicion of drug use or health and safety issues. We disagree.

Employee relies on the Practitioner's Guide to Colorado Employment Law § 9.1.2 (1998 ed. & Supp.2004), to contend that the right of privacy includes the right to control personal information, exemplified by medical and drug testing questionnaires, background checks, electronic mail searches, and video surveillance. She argues that the public policy is established in the Fourth Amendment of the Constitution of the United States; article II, § 3 of the Colorado Constitution; and the common law tort of invasion of privacy.

The essential question we must resolve is whether employer directed the employee, and the employee refused, to perform an act that would undermine a clearly expressed public policy relating to employee's right or privilege as a worker. Martin Marietta Corp. v. Lorenz, supra.

A. Fourth Amendment

Drug testing of public employees constitutes a search under the Fourth and Fourteenth Amendments and, therefore, a public employer may not conduct such a test without individualized suspicion of wrongdoing. Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). Here, however, employee contends that the Fourth Amendment gives rise to a right of privacy that limits the actions of her private employer.

She relies on several federal...