Williams v. Rock-Tenn Servs., Inc.

• Decision Date: 11 February 2016
• Citation: Williams v. Rock-Tenn Servs., Inc., 370 P.3d 638 (Colo. App. 2016)
• Docket Number: 14CA2329
• Parties: Douglas WILLIAMS, Plaintiff–Appellant, v. ROCK–TENN SERVICES, INC., a Georgia corporation, Defendant–Appellee.
• Court: Colorado Court of Appeals

370 P.3d 638

Douglas WILLIAMS, Plaintiff–Appellant,

v.ROCK–TENN SERVICES, INC., a Georgia corporation, Defendant–Appellee.

Court of Appeals No. 14CA2329

Colorado Court of Appeals, Div. I.

Announced February 11, 2016

Berg Hill Greenleaf & Ruscitti LLP, Mary Sue Greenleaf, Josh A. Marks, Boulder, Colorado, for Plaintiff–Appellant.

Husch Blackwell LLP, Christopher L. Ottele, Carrie Claiborne, Denver, Colorado, for Defendant–Appellee.

Opinion by JUDGE DAVIDSON^*

¶ 1 In this action for relief brought under section 24–34–402.5, C.R.S. 2015, Colorado's Lawful Off–Duty Activities Statute(LODAS), plaintiff, Douglas Williams, appeals from the dismissal of his complaint for failure to state a claim pursuant to C.R.C.P. 12(b)(5).We affirm.

I. LODAS

¶ 2 LODAS is an exception to an employer's general right to terminate an at-will employee without legal consequence.Watson v. Pub. Serv. Co. of Colo.,207 P.3d 860, 867(Colo.App.2008).It prohibits an employer from terminating 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)."[T]he general purpose of section 24–34–402.5 is to keep an employer's proverbial nose out of an employee's off-site off-hours business[.]"Coats v. Dish Network, L.L.C.,2013 COA 62, ¶ 15, 303 P.3d 147, 151, aff'd,2015 CO 44, 350 P.3d 849.However, an employer may terminate an employee if the activity at issue:

(a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees , rather than to all employees of the employer; or

(b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

§ 24–34–402.5(1)(emphasis added).

II.Background

¶ 3 Williams had been employed for thirty-six years by defendant, Rock–Tenn Services, Inc., a corporation based in Georgia, and its predecessor, Smurfit Stone Container Corporation.In the last four years of his employment, he served as the Denver plant manager.According to his complaint, Williams's LODAS claim arose from "[Rock–Tenn's] termination of [him] from his job as a Plant Manager at their Denver cardboard manufacturing facility."The complaint alleged that "[Rock–Tenn] abused its role as an employer in terminating Mr. Williams for taking an approved vacation after telling Mr. Williams that he was cleared to go on vacation and miss a meeting."

¶ 4 The complaint further alleged that, by discharging him for "engaging in any lawful activity off the premises of the employer during nonworking hours,"§ 24–34–402.5(1), Rock–Tenn had violated LODAS.Rock–Tenn filed a motion to dismiss for failure to state a claim pursuant to C.R.C.P. 12(b)(5), which the district court granted.

¶ 5 In its written order, the court described the complaint as alleging that Rock–Tenn terminated Williams "for going forward with a vacation that conflicted with a meeting abruptly scheduled to address a failed internal audit."The district court reasoned that, under the facts set forth in the complaint, "[Williams] managed one of [Rock–Tenn's] plants.The plant failed an internal audit.[Williams] was terminated for going on a vacation in lieu of attending that meeting.Such termination is reasonably and rationally related to [Williams's] employment activities and responsibilities...."

¶ 6The court concluded that LODAS does not offer protection to an employee under such circumstances.

¶ 7 On appeal, Williams contends that the dismissal was error.He insists that, contrary to the district court's characterization, his complaint alleged only that Rock–Tenn "pursue[d] termination ... because he was on an approved vacation," which he further alleged was a personal, private activity protected by LODAS.He argues that the court wrongly interpreted his allegations to include his failure to attend the July 3 post-audit meeting.By doing so, he argues, the court did not construe the facts in the light most favorable to him, considered facts outside of the complaint, and did not accept his allegations as true.He also suggests that the court's dismissal under C.R.C.P. 12(b)(5) was procedurally improper because it was based on an affirmative defense.

¶ 8 Based on slightly different reasoning, we agree with the result reached by the district court.SeeHiner v. Johnson,2012 COA 164, ¶ 2, 310 P.3d 226(if a district court reaches the correct result, an appellate court may affirm on different grounds).

III.Analysis

¶ 9We review de novo a district court judgment granting a C.R.C.P. 12(b)(5)motion to dismiss for failure to state a claim upon which relief may be granted.

Regents of the Univ. of Colo. v. Students for Con cealed Carry on Campus, LLC,2012 CO 17, ¶ 11, 271 P.3d 496, 499.

A.Procedural Issues

1.Contrary to Williams's Contention, the District Court Applied the Correct Standards in its Review of the Complaint

¶ 10 A C.R.C.P. 12(b)(5)motion to dismiss tests the formal sufficiency of a plaintiff's complaint.Dorman v. Petrol Aspen, Inc.,914 P.2d 909, 911(Colo.1996).

¶ 11 Amotion to dismiss is properly granted only when it appears beyond doubt that no set of facts can prove that the plaintiff is entitled to relief.Id.In reviewing a motion to dismiss, the court must accept all factual allegations as true and view them in the light most favorable to the plaintiff.Denver Post Corp. v. Ritter,255 P.3d 1083, 1088(Colo.2011).The court must rule based on the matters and factual averments stated in the complaint, and with certain exceptions not relevant here, is not permitted to consider any information or facts outside the confines of that pleading.Allen v. Steele,252 P.3d 476, 481(Colo.2011).And, the court must consider the complaint in its entirety.SeeState v. Nieto,993 P.2d 493, 508(Colo.2000).

¶ 12 Here, the allegations of the complaint, in pertinent part, state as follows (with emphasis added):

• ¶ 1—Rock–Tenn "abused its role as an employer in terminating Mr. Williams for taking an approved vacation after telling [him] that he was cleared to go on vacation and miss a meeting ."

• ¶ 9—In June 2012, Rock–Tenn audited the Denver plant.The plant audit resulted in a score of 2.95, which was .05 below a passing score.

• ¶ 9—"A post-audit closing meeting was schedule[d] for June 27, 2012 ....Mr. Williams had scheduled a vacation during the week of June 27, 2012, but cancelled and rescheduled it for the week of July 2, 2012to participate in the June 27, 2012 post-audit meeting ."

• ¶ 10—To accommodate upper-level management who could not attend the original meeting, it was rescheduled for July 3, 2012.Williams's rescheduled vacation coincided with the new meeting date, which, as he explained, he could not attend in person or by phone because he would be in a remote area with no mobile telephone service on July 3.

• ¶ 10—Larry Vas, Williams's direct supervisor, "approved Mr. Williams's vacation and absence from the July 3, 2012 meeting ."

• ¶ 11—"Relying on his supervisor's approval, Mr. Williams went on vacation and did not participate in the July 3, 2012 post-audit meeting ."

• ¶ 12—Dwight Morris, Vas's supervisor, "became upset at the fact that Mr. Williams was on vacation and did not participate [in the post-audit meeting] ."Mr. Morris obtained Rock–Tenn's approval for Williams's termination.When Williams returned from his vacation, Vas called him into a meeting and, per Morris's instructions, terminated Williams for "unsatisfactory work performance."

¶ 13 These factual allegations are not from the district court order—they come from Williams.They plainly show that the vacation and the missed meeting were inextricably linked—Williams was unavailable either in person or by phone for the post-audit meeting because he was on vacation.Accordingly, we agree with the district court that the complaint, read under the proper standard of review, alleges that Rock–Tenn, through Morris, improperly terminated Williams's employment for not participating in a post-audit meeting while on a preapproved vacation.

2.Although Affirmative Defenses Typically are Raised in an Answer, Under the Circumstances Here, the Consideration of an Affirmative Defense in the Context of a C.R.C.P. 12(b)(5) Motion Was Proper

¶ 14 As set forth above, LODAS, section 24–34–402.5(1)(a), permits an employer to terminate an employee for an otherwise personal, private activity if the termination is "reasonably and rationally related to the employment activities and responsibilities of a particular employee."While described as a statutory "exception,"Coats,¶ 15, 350 P.3d at 852, section 24–34–402.5(1)(a) has been treated procedurally as an affirmative defense.Gwin v. Chesrown Chevrolet, Inc.,931 P.2d 466, 470(Colo.App.1996).

¶ 15 As Williams asserts, generally, a party may not raise an affirmative defense in a motion to dismiss for failure to state a claim.McPherson v. McPherson,145 Colo. 170, 172, 358 P.2d 478, 479(1960);seeBristol Bay Prods., LLC v. Lampack,2013 CO 60, ¶ 41, 312 P.3d 1155, 1163.

This is so because a plaintiff has no obligation to anticipate an affirmative defense in the complaint and include allegations intended to negate it.Citizens State Bank v. Nat'l Sur. Corp.,199 Colo. 497, 500, 612 P.2d 70, 72(1980); 4 Sheila K. Hyatt & Stephen A. Hess, Colorado Civil Rules Annotated 145 (2005).If the rule were otherwise, then it would run afoul of the pleading standard embodied by C.R.C.P. 8, which requires that a plaintiff plead only a "short and plain statement of the claim showing that the pleader is entitled to relief."C.R.C.P. 8(a)(2).It would also place on the plaintiff the burden of pleading facts intended to negate an anticipated affirmative defense as an essential element of the plaintiff's claim.

Bristol Bay , ¶ 41, 312 P.3d at 1163.

¶ 16 However, in narrow circumstances, when the "allegations indicate...