Weissman v. Crawford Rehabilitation Services, Inc.
| Decision Date | 13 April 1995 |
| Docket Number | No. 93CA1905,93CA1905 |
| Citation | 914 P.2d 380 |
| Parties | , 10 IER Cases 900 Susan WEISSMAN, Plaintiff-Appellant and Cross-Appellee, v. CRAWFORD REHABILITATION SERVICES, INC., a Georgia Corporation, and Crawford & Company, a Georgia Corporation, Defendants-Appellees and Cross-Appellants. . II |
| Court | Colorado Court of Appeals |
Royce E. Tolley, Castle Rock, for plaintiff-appellant and cross-appellee.
Sabey, Johns, Ordelheide & Smith, P.C., Mark L. Sabey, Denver, for defendants-appellees and cross-appellants.
Opinion by Judge CRISWELL.
Plaintiff, Susan Weissman, appeals from the summary judgment dismissing her breach of contract, wrongful discharge, and outrageous conduct claims that she asserted against her former employer, Crawford Rehabilitation Services, Inc., and its successor, Crawford and Co. (collectively, Crawford). Crawford cross-appeals from the court's denial of its request for attorney fees. We affirm in part and reverse in part.
From the information presented to the trial court, it appears that plaintiff was employed by Crawford for a period of approximately 18 months, from July 1988 until January 1990. On her initial employment application and in an application for a bond which she executed in connection with her employment application, she listed three previous employers.
She said that for a period of six years, from 1974 to 1980, she was employed as a secretary to a physician at Denver General Hospital and that this employment ceased when the physician left that hospital. Crawford does not contest the accuracy of plaintiff's description of this employment.
She also said that, from 1985 to 1988, the three years immediately preceding her employment with Crawford, she was employed as the secretary to the president of a private corporation. Her employment with that company ceased when that corporation ceased doing business. Crawford does not contest the accuracy of plaintiff's description of this employment.
In the interim between these two jobs, plaintiff was employed by another employer for a period of approximately five years. That employment ceased when plaintiff was involuntarily terminated for alleged poor performance and lack of productivity. However, plaintiff disputed this allegation and commenced suit against that employer for wrongful discharge. That suit was settled by the payment of a sum of money to plaintiff and the execution by the parties of a mutual release containing a provision requiring the parties not to disclose the terms of the settlement. According to plaintiff, that litigation was pending when she applied to Crawford for employment.
In her application to Crawford, plaintiff did not list the former employer with whom she was then involved in litigation. Rather, she asserted that, during this period, she was employed by a concern with which her husband was associated. This statement was true only to a very limited extent, at best. It appears that she may have worked for this firm for two or three hours per week, but, if so, she worked that schedule on only an occasional basis. Nevertheless, she named her husband's associate as a former employment reference and made arrangements with him to provide a favorable reference to prospective employers.
Crawford's supervisor asserted by affidavit that there was some urgency involved in hiring an employee at the time plaintiff made her application, and because plaintiff had provided only an address, not a telephone number, for her immediate past employer, no contact was made with that employer. Likewise, because the physician supervisor had left the employ of Denver General Hospital, that employer was not contacted.
Rather, only the husband's associate was contacted by telephone; he gave plaintiff an excellent recommendation. Based on this recommendation, among other things, plaintiff was hired.
During the period of plaintiff's employment with Crawford, there was in effect an employee's manual, which set forth the grounds and procedure for imposing discipline upon employees. This manual called for a four-step, progressive, discipline program. Thus, an employee was to be provided, first, with a verbal warning, followed by a written warning, a one-day leave, and, finally, discharge.
This manual also provided that, for certain actions, an employee "may" be discharged for a first offense. Among such offenses the manual listed "dishonesty," "false certification or documentation," and "[a]bsence for two (2) consecutive days" without notifying the employee's supervisor.
At some point in the latter stages of plaintiff's employment, she and her supervisor became involved in a dispute over the number or length of her "breaks." As a result, plaintiff contacted the Colorado Division of Labor to lodge an informal complaint.
Finally, in late January 1990, plaintiff was discharged by Crawford. According to a later letter from Crawford, her separation from employment was not made pursuant to the progressive discipline procedure, but was done because plaintiff was absent without leave on the three days prior to her termination and did not properly notify her supervisor of her planned absence. Plaintiff asserts, however, that this could not have been the true reason for her termination because her final paycheck was prepared on the first day of her absence.
Based upon the foregoing, plaintiff's complaint asserted that her discharge by Crawford was in violation of its manual, entitling her to legal and equitable relief under either an implied contract or promissory estoppel theory. In addition, she asserted that her discharge was the result of Crawford's retaliation against her because of her contact with the Division of Labor. Hence, she sought also to recover for the torts of wrongful discharge and outrageous conduct.
The trial court dismissed plaintiff's stated claim for outrageous conduct based upon its conclusion that the claim was barred by the exclusivity provisions of the Workers' Compensation Act, § 8-41-104, C.R.S. (1994 Cum.Supp.). Plaintiff asserts that this was error. We disagree.
In her first two claims for relief, plaintiff referred to portions of Crawford's employee manual and alleged that, in terminating plaintiff's employment, Crawford failed to follow the mandated procedures.
In her third claim, then, she alleged that:
The actions of Defendant in terminating the Plaintiff's employment as described above on the grounds that she had too many unexcused absences, under circumstances when they [sic] knew such was not the case and that those were not the grounds they [sic] were really terminating Plaintiff, were outrageous and extreme, going beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. (emphasis supplied)
It was then alleged that: "As a direct result of Defendant's outrageous conduct in terminating the Plaintiff's employment," she underwent emotional distress, physical suffering, and sustained other damages. (emphasis supplied)
Plaintiff's complaint, therefore, clearly asserted that it was Crawford's act of terminating plaintiff, and not some later action, upon which she was grounding her claim for outrageous conduct. And, contrary to her assertions before this court, plaintiff at no time requested the permission of the trial court to amend her complaint to assert an additional or different claim.
After Crawford submitted its motion for summary judgment, plaintiff in her motion papers asserted that certain statements made by Crawford to federal and state agencies, after plaintiff's termination, also constituted outrageous conduct. Because plaintiff failed to request a pleading amendment, however, it is not clear whether her argument was that Crawford's later actions were merely evidence of its motive at the time of her termination or whether these actions were claimed to be the source of different and separate outrageous conduct claims.
In any case, the record demonstrates that the outrageous conduct claim asserted in plaintiff's complaint was barred by the Workers' Compensation Act. See Montoya v. Local Union III, 755 P.2d 1221 (Colo.App.1988). See also Farmer v. Central Bancorporation, Inc., 761 P.2d 220 (Colo.App.1988) ().
Because plaintiff asserted no claim for outrageous conduct based upon Crawford's post-termination communications to governmental agencies, we need not decide whether such actions can be the basis for an outrageous conduct claim, whether such communications are privileged, or the effect that our affirmance of the trial court's dismissal of plaintiff's pleaded claim might have upon any attempt by her to assert further outrageous conduct claims in the future.
The trial court, although recognizing that there were genuine factual disputes respecting plaintiff's wrongful discharge tort claim, nevertheless concluded that this claim was barred by the so-called "after acquired evidence" rule that had been developed by some federal courts of appeal in passing upon claims asserted under various federal statutes prohibiting employment discrimination. After the trial court rendered its decision in this case, however, the United States Supreme Court announced its unanimous opinion in McKennon v. Nashville Banner Publishing Co., 513 U.S. ----, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), in which that court concluded that public policy prohibited the after acquired evidence rule from being applied so as to bar such claims.
The typical instance giving rise to application of the after acquired evidence rule is one in which the employer terminates the employee for one alleged reason, and as here, the employee sues, claiming that the reason given was pretextual and...
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Crawford Rehabilitation Services, Inc. v. Weissman
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