Watson v. Public Service Co. of Colorado

Citation207 P.3d 860
Decision Date16 October 2008
Docket NumberNo. 07CA1024.,07CA1024.
PartiesDennis WATSON, Plaintiff-Appellee and Cross-Appellant, v. PUBLIC SERVICE COMPANY OF COLORADO, d/b/a Xcel Energy, Defendant-Appellant and Cross-Appellee.
CourtCourt of Appeals of Colorado

Andrew T. Brake, P.C., Brian Lewis, Englewood, Colorado, for Plaintiff-Appellee and Cross-Appellant.

Brownstein Hyatt Farber Schreck, LLP, Susan P. Klopman, Joshua S. Glasgow, Meghan W. Martinez, Richard P. Barkley, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge WEBB.

In this wrongful discharge case, defendant, Public Service Company of Colorado d/b/a Xcel Energy, appeals the trial court's judgment entered on a jury verdict awarding plaintiff, Dennis Watson, damages under section 24-34-402.5, C.R.S.2008, which prohibits terminating an employee based on lawful, off-duty conduct. Xcel challenges the denial of its motion to strike Watson's jury demand; jury instructions on the burden of proof; and the award of prejudgment interest. Watson cross-appeals the trial court's summary judgment dismissing his breach of implied contract and promissory estoppel claims, and the amount of its attorney fees award.


As to the appeal, we hold that section 24-34-402.5(1), C.R.S.2008, applies to lawful, off-duty conduct, even if work-related; that the judgment must be vacated because the back pay remedy under section 24-34-402.5 is equitable, and thus Watson's claim was not triable to a jury; and that, for the same reason, if the court enters a judgment for Watson on remand, prejudgment interest may not be awarded. Having discerned no other errors, the case need not be retried. Rather, the judge who presided over the trial shall make findings of fact and conclusions of law based on the existing record, and enter judgment.

As to the cross appeal, we uphold summary judgment because the Xcel Internet job posting at issue was not an offer that Watson could accept, and its terms precluded reasonable reliance. We also vacate the attorney fees award, without prejudice to such an award if Watson prevails on remand.


Watson applied to Xcel for a temporary utility worker position in response to an Internet job posting that listed, among other minimum requirements, "must have, or obtain within six months of start date, a valid CDL [commercial driver's license]." Xcel hired Watson on October 28, 2003.

On April 8, 2004, an Xcel manager began reviewing information on temporary utility workers to determine which of them would be extended offers of permanent employment. A report showed that Watson had not yet obtained a CDL.

On April 9, after having encountered working conditions that he considered unsafe, Watson made a telephone complaint to the Occupational Safety and Health Administration (OSHA). When he made the call, he was off duty and not on Xcel's premises. On April 12, an OSHA inspector visited the work site and told Watson's supervisor that a complaint had been made, but he did not identify Watson as the complaining party.

The next day, the manager met with Watson, told him that his temporary employment was over, and terminated him effective immediately. She explained that he was being terminated because he had not obtained a CDL

Watson brought this action against Xcel, alleging breach of implied contract, promissory estoppel, and violation of section 24-34-402.5. He asserted that the job posting assured him of six months to obtain a CDL; that he relied on this assurance in accepting the position; that Xcel terminated him less than six months after his start date, purportedly for not having obtained a CDL; and that this explanation was pretextual because the termination was in retaliation for having made the OSHA complaint.

The trial court granted summary judgment for Xcel on the breach of implied contract and promissory estoppel claims. It denied Xcel's motion to strike the jury demand on the remaining section 24-34-402.5 claim. Xcel objected to jury instructions, which the trial court later gave, that allowed Watson to recover if his OSHA complaint was a motivating factor in the decision to terminate him, even though other factors may also have motivated the decision. The jury returned a verdict for Watson, and the trial court entered judgment of $69,717.08, plus prejudgment interest. The court also awarded Watson attorney fees and costs under section 24-34-402.5(2)(b), C.R.S.2008, but significantly reduced attorney fees for his trial co-counsel.


Statutory interpretation is a question of law that we review de novo. Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo.2006).

We must adopt the statutory construction that "best effectuates the intent of the General Assembly and the purposes of the legislative scheme." State v. Nieto, 993 P.2d 493, 501 (Colo.2000). Where the language is clear, we do not look beyond the plain meaning of the words or resort to other rules of statutory construction. Slack v. Farmers Ins. Exch., 5 P.3d 280, 284 (Colo. 2000).

If the statute is reasonably susceptible to multiple interpretations, it is ambiguous and we apply principles of statutory interpretation. Williams v. Kunau, 147 P.3d 33, 36 (Colo.2006). To reasonably effectuate the legislative intent, a statute should be construed as a whole, giving consistent, harmonious, and sensible effect to all of its parts. People v. Dist. Court, 713 P.2d 918, 921 (Colo.1986). A construction that would render any clause or provision unnecessary, contradictory, or insignificant should be avoided. Sulca v. Allstate Ins. Co., 77 P.3d 897, 899 (Colo.App.2003). A court must also seek to "avoid an interpretation that leads to an absurd result." Nieto, 993 P.2d at 501. A court may consider the legislative history and legislative declaration or purpose. § 2-4-203(1)(c), (g), C.R.S.2008.

I. Applicability to Work-Related Conduct

Xcel first contends section 24-34-402.5 does not apply to Watson's OSHA complaint because it was intended to protect only private activities unrelated to work. We disagree.

The statute prohibits an employer from terminating an employee because the employee engaged in "any lawful activity off the premises of the employer during nonworking hours...." § 24-34-402.5(1) (emphasis added). "Any" means "all." Kauntz v. HCA-Healthone, LLC, 174 P.3d 813, 817 (Colo.App.2007). We are "not to presume that the legislative body used language `idly and with no intent that meaning should be given to its language.'" Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 597 (Colo. 2005) (quoting Carlson v. Ferris, 85 P.3d 504, 509 (Colo.2003)). And as a remedial statute, section 24-34-402.5 should be broadly construed. Colo. & S. Ry. Co. v. State R.R. Comm'n of Colo., 54 Colo. 64, 77, 129 P. 506, 512 (1912) (where an act is remedial, it will be liberally construed to accomplish its objective); USA Tax Law Ctr., Inc. v. Office Warehouse Wholesale, LLC, 160 P.3d 428, 434 (Colo.App.2007).

Because we discern no ambiguity in this language, we decline Xcel's invitation to examine the legislative history. See Jessica Jackson, Comment, Colorado's Lifestyle Discrimination Statute: A Vast and Muddled Expansion of Traditional Employment Law, 67 U. Colo. L.Rev. 143, 143 n. 5 (1996) (statute was originally proposed by the tobacco lobby to protect smokers and coverage of "all lawful activities" was intended to make bill more appealing to legislature as a whole).

Nevertheless, Xcel argues that even if the statute is not ambiguous, permitting a claim based on off-duty conduct that is work-related would lead to the absurd result that an employee could elect between two statutes with different procedural requirements to prosecute a claim based on the same protected conduct. We are not persuaded.

According to Xcel, section 24-34-402(1)(e)(IV), C.R.S.2008, recognizes a retaliation claim for certain work-related conduct that would also be protected by a broad reading of section 24-34-402.5, but it is subject to a six month statute of limitations and a filing requirement with the Colorado Civil Rights Commission. In contrast, a division of this court has held that section 24-34-402.5 is subject to a two year statute of limitations and has no administrative filing requirement. See Galvan v. Spanish Peaks Reg'l Health Ctr., 98 P.3d 949, 951 (Colo.App. 2004).

This conflict is not before us. Watson never asserted a retaliation claim under section 24-34-402(1)(e)(IV), and Xcel does not explain how he could have done so. Xcel's "absurd results" argument does not account for the principle that where two statutes address the same subject matter, specific provisions prevail over general provisions. See, e.g., Stamp v. Vail Corp., 172 P.3d 437, 447 (Colo.2007); cf. § 2-4-205, C.R.S.2008.

Xcel's reliance on the statement in Marsh v. Delta Air Lines, Inc., 952 F.Supp. 1458, 1462-63 (D.Colo.1997), "the statute shields employees who are engaging in private off-the-job activity, that is unrelated to the employees['] job duties," is misplaced. As authority for this statement, the Marsh court cited Evans v. Romer, 882 P.2d 1335, 1346-47 (Colo.1994), aff'd, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). But Evans did not involve a claim under section 24-34-402.5, and it only noted that the statute protected "any legal, off-duty conduct such as smoking." 882 P.2d at 1346 n. 9.

The Marsh court concluded that the statutory defense for an employer restriction on off-duty conduct that "[r]elates to a bona fide occupational requirement," section 24-34-402.5(1)(a), C.R.S.2008, precluded relief because, on the facts presented, such requirements included "an implied duty of loyalty, with regard to public communications" by an employee critical of the employer. 952 F.Supp. at 1463. No Colorado appellate opinion has approved the Marsh court's analysis. Here, Xcel raises no such defense.

Accordingly, we conclude that section 24-34-402.5(1)...

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