DeFazio v. Starwood Hotels & Resorts Worldwide, Inc. ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 3, 2014
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
GUY DEFAZIO,
Plaintiff-Appellant,
No. 13-1197
v. (D.C. No. 1:11-CV-03357-WJM-
KLM)
STARWOOD HOTELS & RESORTS (D. Colo.)
WORLDWIDE, INC., a Maryland
corporation,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO, HOLLOWAY, and GORSUCH, Circuit Judges.
Guy DeFazio used to work for Starwood as a general maintenance engineer
at the company’s resort in Steamboat Springs. But eventually the relationship
soured and he was let go. He says the company fired him in retaliation for
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
reporting to his bosses a mold problem in the hotel. In this diversity action he
seeks damages under Colorado state law for his dismissal.
The first difficulty Mr. DeFazio confronts is that he served as an at-will
employee. In Colorado, that generally means the employment relationship can be
terminated by either party for any reason at any time. See, e.g., Martin Marietta
Corp. v. Lorenz, 823 P.2d 100, 104-05 (Colo. 1992). Some exceptions to the
general rule exist, of course, but the district court found that none applied here
and dismissed Mr. DeFazio’s claim at summary judgment. Before us, Mr.
DeFazio insists two exceptions save his suit. We have carefully considered each
possibility but at the end of the day find ourselves constrained to agree with the
district court’s judgment otherwise.
*
Mr. DeFazio first asks us to invoke the doctrine of promissory estoppel.
He claims that Starwood made an implied promise in its employee handbook that
it would not retaliate against employees for reporting health and safety issues — a
promise it has now breached, a breach it can and should be held to account for in
court.
To state a promissory estoppel claim under Colorado law, an employee
must show four things: (1) the employer made a promise to him; (2) the employer
should have reasonably expected that its promise would induce action or
forbearance by the employee; (3) the employee reasonably relied on the promise
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to his detriment; and (4) the promise must be enforced to prevent injustice.
Cherokee Metro. Dist. v. Simpson, 148 P.3d 142, 151 (Colo. 2006).
We agree with the district court that Mr. DeFazio’s claim fails on the first
three elements. To be sure, Starwood’s Code of Business Conduct includes a
provision stating, “[i]t is our policy not to discriminate or retaliate against any
associate who reports any violations of our policies, provides evidence or who
otherwise participates in an investigation in good faith.” R. at 116. To be sure,
Colorado law sometimes permits promissory estoppel claims predicated on
personnel policy statements like this one. See, e.g., Cont’l Airlines, Inc. v.
Keenan, 731 P.2d 708, 712 (Colo. 1987). But Starwood’s code of conduct
proceeds to inform employees that “[n]either the Code nor our policies are
intended, and do not in any way, constitute an employment contract or an
assurance of continued employment. We do not create any contractual rights by
issuing the Code or other policies.” R. at 116. In addition, Starwood’s code
expressly reserves the company’s right to “amend, modify or waive any
provisions of the Code or our policies in our sole discretion.” Id. These two
disclaimers make quite clear, then, that the code of conduct may represent the
company’s aspirations for itself (aspirations the company chooses to share with
its employees and perhaps boast about), but the code does not represent a firm
promise to employees that they can reasonably rely upon. Indeed, it is settled law
in Colorado that where, as here, “the handbook contains such . . . clear and
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conspicuous disclaimer[s,] . . . the handbook will not be construed as a contract
limiting the employer’s right to discharge its employees.” George v. Ute Water
Conservancy Dist., 950 P.2d 1195, 1198 (Colo. App. 1997); cf. Geras v. Int’l Bus.
Machs. Corp., 638 F.3d 1311, 1316 (10th Cir. 2011).
*
However that might be, Mr. DeFazio says he can still bring a claim for
wrongful discharge in violation of public policy. He is quite right that Colorado
law recognizes a cause of action along these lines even for at-will employees.
See Rocky Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 523-25 (Colo.
1996). But to prevail Colorado requires an employee to prove various elements,
including (as relevant here) that the employer directed him to violate some
specific statute, regulation, or professional code related to public health, safety or
welfare, or some clearly expressed public policy related to his responsibility as a
citizen or his rights or privileges as a worker, or prohibited him from performing
a public duty. Lorenz, 823 P.2d at 109. And this is a burden Mr. DeFazio has
simply failed to carry.
As the district court noted, Mr. DeFazio has not identified “any clearly-
expressed public policy that was implicated by his actions.” R. at 275. In saying
this much, we do not mean to suggest there isn’t any such policy. The ledgers of
the law are long, the rule books replete. It doesn’t stretch our imagination to
think that lurking somewhere in Colorado law lies some specific provision that
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might cover the situation we face. Intuitively, after all, if he is to be believed
(and believed he must be at summary judgment) Mr. DeFazio was seeking to
address a mold problem, perhaps a health hazard, and that’s very possibly a
matter implicated in some way by some statute or regulation.
But to make out a claim for wrongful discharge in violation of public
policy in Colorado, a claimant must do more than leave a court with that kind of
conjecture. A claimant bears the burden of identifying for the court some
specific, “clearly mandated” public policy in play; even “broad hortatory
statement[s]” in the law won’t do. Mariani, 916 P.2d at 525; see also Lorenz, 823
P.2d at 107 (requiring a “clear mandate of public policy”); Jaynes v. Centura
Health Corp., 148 P.3d 241, 243-44 (Colo. App. 2006). And it is in this respect
that Mr. DeFazio falls short, for he has failed to identify any statute, rule, or
public policy implicated by his dismissal. There may be one, a future employee
in his shoes may succeed in identifying one, but Mr. DeFazio has not. He did not
do so in district court, and he has not done so on appeal even after being put on
notice of this shortcoming. That alone requires dismissal of his claim, just as the
district court held. R. at 274-75; see also Jaynes, 148 P.3d at 243-47.
Mr. DeFazio suggests a different result is required by Kearl v. Portage
Environmental, Inc., 205 P.3d 496 (Colo. App. 2008), and Haynes v. Poudre
Valley Health Care, Inc., No. 09-cv-01956-WYD-BNB, 2011 WL 1225590
(D. Colo. Mar. 31, 2011), but we cannot agree. In the first case, the Colorado
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Court of Appeals found “a clearly expressed public policy” against terminating
employees in retaliation for their attempt to expose or prevent efforts by their
employers to defraud the government. Kearl, 205 P.3d at 500. In Haynes, we
encounter not only a non-binding district court opinion and an unpublished one at
that but a situation very much like the one in Kearl. In Haynes, as in Kearl, the
plaintiff sought to expose her employer’s violations of legal duties it owed the
government. We do not question that it may be a violation of clearly expressed
Colorado public policy to retaliate against an employee for opposing or seeking to
expose a fraud or deception on the government, but Mr. DeFazio simply does not
allege any such thing took place in this case. He says he complained to his
employer about mold issues, but never suggests his employer sought to defraud or
mislead any governmental entity in any way. Whether a plaintiff in his shoes
could or could not make out such an allegation, we do not profess any answer.
We take cases as they come, and in this one Mr. DeFazio simply does not make
any of the allegations necessary to bring his case within the rule of Kearl.
The judgment of the district court is affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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