DeFranco v. Storage Technology Corp. , 622 F.3d 1296 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
October 20, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
THOM DEFRANCO,
Plaintiff-Appellant,
v.
STORAGE TECHNOLOGY No. 08-1095
CORPORATION; STORAGETEK
INTERNATIONAL SERVICES
CORPORATION; SUN
MICROSYSTEMS, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:06-CV-02500-ZLW-MJW)
John R. Olsen of Olsen & Brown, L.L.C., Niwot, Colorado, for Plaintiff-Appellant.
Daniel E. Friesen of Hale Friesen, LLP, Denver, Colorado (Shannon M. Henderson, Peter
J. Krumholz with him on the brief), for Defendants-Appellees.
Before MURPHY, EBEL, and HARTZ, Circuit Judges.
EBEL, Circuit Judge.
Plaintiff-Appellant Thom DeFranco was an employee of Defendant-Appellee
Storage Technology Corporation (“StorageTek”) in Colorado when he agreed to accept
an overseas assignment in 2004. Before accepting the two-year job overseas, however,
he received verbal assurances from three different StorageTek employees that he would
have a “permanent job” when he returned from his work in the United Kingdom. After
receiving those assurances, he signed a “Secondment Agreement” with Defendant-
Appellee StorageTek International Services Corporation (“StorageTek International”),
providing, among other things, that his employment with the company was strictly at
will.
In 2005, Defendant-Appellee Sun Microsystems, Inc. (“Sun”) acquired
StorageTek and spent most of 2005 and 2006 integrating StorageTek into Sun’s
organization. DeFranco claims that he received two promises from Sun employees—one
while he was still abroad, the other after he had returned to Colorado—that he would
have permanent employment at Sun. However, in October 2006, he was subjected to a
reduction in force and terminated from Sun.
DeFranco brought this lawsuit, claiming breach of contract and promissory
estoppel. The district court granted summary judgment in favor of all Defendants. We
possess jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
I. Background
Viewing the evidence in the light most favorable to DeFranco, as the non-moving
party, see Kerber v. Qwest Pension Plan, 572 F.3d 1135, 1144 (10th Cir. 2009), the
2
evidence in the record establishes the following:
A. DeFranco’s initial written employment contract with StorageTek
StorageTek hired DeFranco in 2002 as a project manager. At that time, the
company sent him a letter stating the terms of his employment, which DeFranco signed.
Among other things, that letter stated:
Your employment with Storage Tek will be “at-will.” This means that
either you or Storage Tek may terminate your employment at any time,
with or without cause, with or without notice, and for any reason or no
reason. Any contrary representations or agreements, which may have been
made to you are superseded by this offer. The “at-will” nature of your
employment described in this offer letter shall constitute the entire
agreement between you and Storage Tek concerning the nature and
duration of your employment.
(Aplt. App. at 203.)
B. DeFranco accepts a position in England
In 2004, DeFranco agreed to accept a position in England with a StorageTek
affiliate, StorageTek UK. DeFranco viewed the position as a promotion, and it included
a 15% increase in salary. According to DeFranco, his primary concern in weighing
whether or not to accept this position and move his family from Colorado to England was
whether he would have a job with StorageTek when his assignment in England ended. In
response to these concerns, DeFranco claims that three StorageTek executives
“guaranteed” that he would have a position at StorageTek when he returned from
England: Pat Martin, chairman and chief executive officer (“I have to give you a job
when you come back”), Angel Garcia, executive vice president (promised DeFranco he
3
would “be taken care of”), and Roger Gaston, executive vice president of human
resources (“I have a requirement to place you when you come back”). These guarantees
were made in June and August of 2004.
In September 2004, DeFranco signed a written “Secondment Agreement” with
Storagetek International for services DeFranco agreed to provide StorageTek UK. 1 As
relevant to the present dispute, the Secondment Agreement contained three important
provisions. First, the Secondment Agreement provided that DeFranco’s employment was
at will:
You and Company [defined by the Agreement as Storagetek International]
each acknowledge that either party has the right to terminate your
employment with Company at any time for any reason whatsoever, with or
without notice or Cause, as defined in Section 11 below of this Secondment
Agreement, or with or without advance notice. This at-will employment
relationship cannot be changed except in a writing signed by an authorized
representative of Company. It is understood and agreed by you and
Company that this Secondment Agreement does not contain any promise or
representation that alters your at-will employment status. In addition, any
terms of your employment contained in this Secondment Agreement or in
any other agreement between you and Company stated in units of years,
months, and/or days does not mean and should not be interpreted to mean
that you are guaranteed employment to the end of any period of time or for
any period of time. In the event that Company terminates your
employment for reasons other than Cause, you will be eligible to receive
severance benefits (based on your completed years of service as of your
employment termination date) in exchange for a signed Company legal
release agreement.
(Id. at 207.)
1
The term “secondment” means “the detachment of a person . . . from his regular
organization for temporary assignment elsewhere.” Webster’s Third New Int’l
Dictionary 2051 (1986).
4
Next, the Secondment Agreement specifically addressed DeFranco’s possible job
opportunities with StorageTek when he returned to the United States after his work in
England ended:
It is anticipated that the Term [of the Secondment Agreement] will end
September 10, 2006 . . . . Upon the end of the Term, Company
[StorageTek International] will make reasonable efforts as determined by
the Company to return you to a position within Company, StorageTek, or a
StorageTek Affiliate [defined by the Agreement as “any subsidiary of
StorageTek and any entity controlled directly or indirectly by or under
common control of StorageTek”] which is defined by Company as a
position similar in duties, scope, and compensation (“Comparable
Position”) to either the position which you held immediately preceding the
secondment or the secondment position. It is understood that Company
cannot guarantee that it will be able to return you to a comparable position,
and that the selection of the position to be offered will be dependent upon
your qualifications, business conditions, and the staffing requirements of
Company, StorageTek, and the StorageTek Affiliates.
In the event that within sixty (60) days prior to September 10, 2006 you are
offered a Comparable Position, and you decide to decline the offer, your
employment will be terminated by Company for reasons other than Cause
and you will not be eligible to receive the severance benefits described in
Section 3 above. In [the] event that there is no Comparable Position
available and offered to you, your employment will be terminated for
reasons other than Cause by Company and you will be eligible to receive
the severance benefits described in Section 3 above. You may elect to
accept a position that is not Comparable (if one is available and offered to
you) however, should you decide not to accept this position offered to you,
your employment will be terminated by Company for reasons other than
Cause and you will be eligible to receive the severance benefits described
in Section 3 above. For purposes of this Secondment Agreement, “Cause”
is defined in Section 11 below.
(Id. at 209 (emphasis added).)
Finally, the Secondment Agreement contained an integration and no-oral-
modification clause.
5
The terms and conditions in this Secondment Agreement . . . , the
documents identified in Section 22 hereinabove [regarding a separate
“Proprietary Rights Agreement”], and the StorageTek UK, Company
[StorageTek International], and StorageTek policies and Plan documents
referenced in this Secondment Agreement embody the entire agreement and
understanding of the parties hereto with respect to the matters hereinabove
and supersedes, terminates, and otherwise renders null and void any and all
prior agreements or contracts, whether written or oral, entered into between
you and Company or between you and StorageTek or between you and any
other StorageTek Affiliate with respect to the matters hereinabove
expressly set forth. No amendment or modification of this Secondment
Agreement will be valid unless set forth in writing referencing this
Secondment Agreement and signed by authorized representatives of both
parties. You hereby acknowledge and agree that all prior contractual
obligations of Company, StorageTek, and all other StorageTek Affiliates
have been fulfilled or are fully incorporated herein.
(Id. at 214-15 (emphasis added).)
The record does not clearly set forth the actual relationship between StorageTek,
StorageTek International, and StorageTek UK. Although the Secondment Agreement
was only between DeFranco and StorageTek International, on behalf of StorageTek UK,
the Agreement, as quoted above, does clearly purport to affect StorageTek’s substantive
rights as well. For example, the Agreement specifies “that all prior contractual
obligations of Company, StorageTek, and all other StorageTek Affiliates have been
fulfilled or are fully incorporated herein,” and the Agreement “supersedes, terminates,
and otherwise renders null and void any and all prior agreements or contracts, whether
written or oral, entered into between you and . . . StorageTek.” (Id.)
C. Sun acquires StorageTek
On August 31, 2005, while DeFranco was in England, Sun acquired StorageTek.
6
StorageTek and Sun agreed to a merger effective as of January 1, 2007, and provided that
Sun would “assume all of StorageTek’s liabilities and obligations.” (Id. at 485.)
A great deal of integration between the companies occurred before the merger was
officially consummated, however. As part of the merger transition process, Sun, in
December 2005, sent StorageTek employees, including DeFranco, a “Confirmation
Letter.” The Letter sent to DeFranco provided, among other things, that “We [i.e., Sun]
look forward to transitioning you to Sun’s plans, programs, and policies. We anticipate
that this transition will occur on or about January 1, 2006.” (Id. at 242.) In addition, the
Letter stated:
The terms and conditions of this Confirmation Letter, in conjunction with
[a previously sent] Sun Welcome Letter, supersede any prior written or oral
communications to you concerning the terms of your employment with
Sun. The terms and conditions of this Confirmation Letter supersede any
commitments or promises that may have been made to you by Storage
Technology Corporation (“StorageTek”), or agreements between you and
StorageTek regarding your employment with StorageTek, including
compensation and benefit matters. Your employment is subject to the
terms and conditions contained herein and all other relevant Sun policies
and procedures.
....
Your employment with Sun will remain “at will,” should not be construed
as a contract of employment for any specified period of time, and may be
terminated by you or Sun at any time, with or without cause or advance
notice. Further, Sun may change your compensation, duties, assignments,
responsibilities, reporting structure or location of your position at any time
to adjust to the changing needs of the company. The “at will” nature of
your employment relationship can only be changed by a written agreement
signed by the Sun Vice President of Human Resources and by you.
(Id. at 242-43 (emphasis added).) The Confirmation Letter asked DeFranco to “confirm
7
your agreement by signing and dating” the Letter. (Id. at 243.) But DeFranco refused to
sign, because he had concerns about the Letter, specifically that it superseded any
previous agreements with StorageTek and because it provided for a smaller bonus than he
had previously received.
D. Sun sends DeFranco back to the United States
Two months later, in February 2006, Sun informed DeFranco that his assignment
in England would be ending six months sooner than anticipated. To facilitate changing
the Term of the Agreement, DeFranco and StorageTek International (Sun did not sign
this agreement) signed an “Amendment” to the Secondment Agreement that provided
that the term of that agreement would expire on March 31, 2006. This Amendment also
provided for a new set of duties for DeFranco to perform, including “[a]uditing an
engineering queue that consists of 9,000 open customer issues to determine which are
still valid and need code fixes from engineering. Once current the team will implement
ongoing processes to status, manage and drive owner accountability and solutions for
customers.” (Id. at 244.) According to DeFranco, this particular project was
“temporary” in the sense that, when these 9,000 open customer issues were resolved, his
project would end. DeFranco began working on this project while he was still in
England, and continued working on it after he returned to the United States in April 2006.
DeFranco contends that, after he signed the Amendment to the Secondment
Agreement, Sun executives Steve Wendt and Eula Adams verbally “guaranteed” him a
permanent job with Sun, though Wendt and Adams deny making such claims. DeFranco
8
claims that he relied on these verbal representations by refraining from looking for
another job outside Sun and by spending $30,000 of his own money to keep his family in
England through the end of the school year.
E. Sun terminates DeFranco
Both before and after he returned to the United States, DeFranco attempted to get
another position within Sun by networking with Sun management and by applying for
jobs posted on Sun’s internal website. But DeFranco had no luck. There is a disputed
factual question as to what help, if any, Sun employees provided DeFranco in his job
search.
Sun originally intended to terminate DeFranco during a reduction-in-force (“RIF”)
occurring in May 2006, a month after he returned from England. According to his
supervisors, DeFranco was not subjected to that RIF in order to give him more time to try
to find another position with Sun. In August 2006, however, as part of another RIF, Sun
notified DeFranco that his employment would be terminated effective October 3, 2006.
Although he was paid through October 3, he did not physically work at Sun after August
3, 2006. DeFranco turned down a severance package because he refused to sign a release
of his claims against Sun.
9
F. Procedural history
DeFranco sued StorageTek, StorageTek International, and Sun in Colorado state
court, bringing claims for both breach of contract and promissory estoppel. Defendants
removed this action to federal court, pursuant to the federal courts’ diversity jurisdiction,
see 28 U.S.C. § 1332(a). 2 Following discovery, the district court granted Defendants
summary judgment on both of DeFranco’s claims. In ruling from the bench, the district
court held that “the [Secondment] agreement makes clear that all of these [Defendant]
entities are considered together”; “the secondment agreement is the sole employment
agreement by the parties”; and “the defendants have performed all necessary
requirements under the employment agreement relating to plaintiff’s repatriation by
returning plaintiff to a position in the company similar in duty, scope, and compensation
to the secondment position.” (Apt. App. at 711-12.) DeFranco now appeals that
decision.
II. Discussion
This court reviews de novo the district court’s decision to grant summary
judgment, viewing the record in the light most favorable to the non-moving party,
DeFranco. See Kerber, 572 F.3d at 1144. In addition, “we may affirm on any grounds
supported by the record.” Bixler v. Foster, 596 F.3d 751, 760 (10th Cir. 2010).
2
Defendants also relied on the federal courts’ federal-question jurisdiction, see 28 U.S.C.
§ 1331, because DeFranco originally included a Title VII gender discrimination claim in
his complaint. DeFranco, however, has since abandoned that federal claim.
10
Summary judgment is appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)(2).
The parties agree that Colorado law governs DeFranco’s claims. In applying
Colorado law, this court is bound to apply Colorado substantive law. Pompa v. Am.
Family Mut. Ins. Co., 520 F.3d 1139, 1142 (10th Cir. 2008). When there is no decision
of the Colorado Supreme Court that is directly on point, “we must predict how that court
would rule.” Id.The essence of DeFranco’s claims is that employees of the Defendants made him
promises that he would have permanent employment at StorageTek/Sun, and that they
broke those promises to him. DeFranco seeks to recover on a breach of contract theory if
these promises created a contract, and under a promissory estoppel theory if the promises
did not. See, e.g., Marquardt v. Perry, 200 P.3d 1126, 1131 (Colo. Ct. App. 2008) (“In
Colorado, promissory estoppel is available as a theory of recovery when breach of
contract fails.”). In his brief, DeFranco identifies five promises that were made to him
that he would have permanent employment upon his return. These promises can be
generally grouped into two categories: 1) three promises made by StorageTek employees
in the summer of 2004, and 2) two promises made by Sun employees in 2006. We will
analyze these two sets of promises in turn.
11
A. Summer 2004 promises
In June 2004, Angel Garcia, an executive vice president at StorageTek, was trying
to convince DeFranco to accept a position overseas. According to DeFranco, Garcia
“guaranteed that when I came back, I would have permanent employment.” (Apt. App. at
419.) Later that summer, in August, DeFranco received similar assurances from two
other StorageTek employees. Pat Martin, the chairman and chief executive officer,
“guarantee[d] [DeFranco] a position when [he] returned.” (Id. at 421.) Finally, Roger
Gaston, executive vice president of human relations, told DeFranco in August that
“StorageTek’s policy is to guarantee permanent employment when you came [sic] back.”
(Id. at 422.) These promises, according to DeFranco, were breached when he came back
from overseas and was subjected to a RIF within six months of his return.
However, these alleged guarantees were made before DeFranco signed the
Secondment Agreement. The agreement, by its own terms, “supersedes, terminates, and
otherwise renders null and void any and all prior agreements or contracts, whether written
or oral, entered into between you and [StorageTek International] or between you and
StorageTek or between you and any other StorageTek Affiliate with respect to the
matters hereinabove expressly set forth.” (Id. at 214 (emphasis added).) One of the
matters “expressly set forth” in the Secondment Agreement was that DeFranco’s
employment was strictly at will. The Agreement goes on to provide that “[y]ou hereby
acknowledge and agree that all prior contractual obligations of . . . StorageTek . . . have
12
been fulfilled or are fully incorporated herein.” (Id. at 215.) The Secondment
Agreement’s at-will provision thus supersedes any guarantees StorageTek employees
made to DeFranco prior to his signing the Agreement.
DeFranco argues that the Secondment Agreement does not apply to StorageTek
because the only signatories to the Agreement are StorageTek International and
DeFranco. This argument is unpersuasive. “[C]ommon law contract principles . . . allow
for the formation of contracts without the signatures of the parties bound by them.”
Yaekle v. Andrews, 195 P.3d 1101, 1107 (Colo. 2008). Here, we need not spend much
time considering whether StorageTek International acted with apparent authority to bind
StorageTek to the Secondment Agreement, see Villalpando v. Denver Health & Hosp.
Auth., 181 P.3d 357, 363 (Colo. Ct. App. 2007) (“Apparent authority is established by
proof of written or spoken words or other conduct of the principal which, reasonably
interpreted, causes a person to believe that the principal consents to have the act done on
his behalf by a person purporting to act for him.” (internal quotation marks omitted)), or
whether StorageTek was a third-party beneficiary of the Agreement, see E.B. Roberts
Constr. Co. v. Concrete Contractors, Inc., 704 P.2d 859, 865 (Colo. 1985) (“A person not
a party to an express contract may bring an action on such contract if the parties to the
agreement intended to benefit the non-party . . . .”). Either way, on these facts, there can
be little doubt that the Secondment Agreement creates enforceable obligations and
contractual rights on the part of StorageTek. StorageTek employees asked DeFranco to
work for StorageTek UK for a period of time before returning to the United States,
13
suggesting that StorageTek viewed this as an internal move within the overall StorageTek
organization, not, as DeFranco would have it, a move to an external company that was
largely unaffiliated with StorageTek. (See, e.g., DeFranco Dep., Aplt. App. at 419
(“[Angel Garcia] said that it would mean a lot to StorageTek . . . if I would consider
moving out there for a few years.” (emphasis added)).) In fact, the very use of the term
“secondment” suggests that this was a move within the same organization. See
Webster’s Third New Int’l Dictionary 2051 (1986) (defining “secondment” as “the
detachment of a person . . . from his regular organization for temporary assignment
elsewhere” (emphasis added)).
Thus, given the close relationship between StorageTek and StorageTek
International, we find DeFranco’s claim that “he had no reason to believe that [the
Secondment Agreement] automatically negated any oral guarantees he was made by
[StorageTek]” unconvincing. (Aplt.’s Br. at 12.) The plain terms of the Agreement
purport to bind StorageTek, and given the nature of the relationship between StorageTek
and StorageTek International—a relationship of which DeFranco was aware given that it
was StorageTek employees who asked him to take the assignment with StorageTek
International—the Secondment Agreement applied to StorageTek itself as well as
StorageTek International. Therefore, the three promises allegedly made by StorageTek
employees before DeFranco signed the Secondment Agreement were superseded by the
Agreement and cannot support a cause of action for breach of contract or promissory
estoppel.
14
B. 2006 promises
DeFranco also argues that Sun employees promised him permanent employment
in 2006. 3 According to DeFranco, in February 2006, while DeFranco was still in the
United Kingdom, Steve Wendt of Sun told DeFranco that they had to bring him back to
the United States early, and added, “[W]e’ll find you a permanent job when you get
back.” (Aplt. App. at 424.) Then, in April, after DeFranco returned to Colorado, Eula
Adams “affirmed the guarantee of permanent placement for [DeFranco] in the new
organization.” (Id. at 428.)
Prior to these statements, DeFranco was an at-will employee of Sun. This is either
because Sun explicitly provided for at-will employment in the Confirmation Letter it sent
to DeFranco in December 2005 or because Sun became a party to the Secondment
Agreement (which also provided for at-will employment) at some point during the
merger. We need not definitively resolve whether Sun became party to the Secondment
Agreement, however, because either way, DeFranco was an at-will employee. 4
3
Because DeFranco explicitly alleges that Wendt and Adams were Sun employees and
not employees of StorageTek, we conclude that his breach of contract and promissory
estoppel claims based on these promises are brought solely against Sun and not the other
two Defendants.
4
Defendants argue that Sun could invoke the Secondment Agreement’s provision
requiring all modifications to be in writing to bar Wendt’s or Adams’s statements from
modifying the at-will employment outlined in that agreement. This is wrong, for two
reasons. First, in Colorado, “a subsequent oral agreement between the parties may
modify a provision of an earlier written contract, even in the face of a provision in the
original contract that modifications must be in writing.” Agritrack, Inc. v. DeJohn
15
The question, then, is whether Wendt’s and Adams’s statements altered the at-will
employment relationship that existed. “Colorado law presumes the employment
relationship to be terminable at will by either party without liability.” Jaynes v. Centura
Health Corp., 148 P.3d 241, 243 (Colo. Ct. App. 2006). “The employee may, however,
rebut the effect of that rule by proving that an explicit term of the employment contract
restricts the employer’s right to discharge . . . .” Schur v. Storage Tech. Corp., 878 P.2d
51, 53 (Colo. Ct. App. 1994). In addition, “even if the requisites for formation of a
contract are not found,” DeFranco may rebut the presumption of at-will employment
under a promissory estoppel theory. See Continental Air Lines, Inc. v. Keenan, 731 P.2d
708, 712 (Colo. 1987). We will therefore consider whether these 2006 promises can
support either DeFranco’s breach of contract claim or his promissory estoppel claim
against Sun.
Housemoving, Inc., 25 P.3d 1187, 1193 (Colo. 2001) (emphasis added); see also James
H. Moore & Assocs. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 372 (Colo. Ct.
App. 1994) (“[G]enerally, a written contract may be modified by a later oral agreement . .
. even in the face of a specific provision in the written agreement that all modifications
must be in writing.”). So even if the Secondment Agreement applied to Sun, a
subsequent oral agreement could still modify the at-will employment provision of that
agreement.
Second, even if the no-oral-modification clause of the Secondment Agreement
could be enforced to bar Wendt’s guarantee of permanent employment made in February
2006, it would not apply to Adams’s statement because his promise, in April, was made
after the Secondment Agreement expired on March 31, 2006. Thus, the Secondment
Agreement’s provision requiring all modifications to be in writing does not impact the
ensuing analysis of whether Wendt’s and/or Adams’s statements created a legally binding
promise for permanent employment.
16
1. Breach of contract
In his breach of contract claim, DeFranco claims that Wendt’s and Adams’s
statements created a contract for permanent employment. However, “in the absence of
special consideration or an express stipulation as to the length of employment,
employment for an indefinite term presumptively creates an at-will employment
relationship that is terminable at any time by either party.” Pickell v. Ariz. Components
Co., 931 P.2d 1184, 1186 (Colo. 1997). Colorado courts have held that a contract
providing for “permanent employment,” such as that alleged by DeFranco here,
“is no more than an indefinite general hiring terminable at the will of either party.”
Pittman v. Larson Distrib. Co., 724 P.2d 1379, 1383 (Colo. Ct. App. 1986). “The
rationale for this rule is that, if the employee gives to the employer consideration beyond
that derived from his or her services as an employee, the employee has effectively
‘purchased’ the job and he or she should not be deprived of it easily.” Schur, 878 P.2d at
54. Accordingly, unless DeFranco can show that he provided special consideration to
Sun in exchange for Sun’s alleged promise to provide permanent employment, no
enforceable contract providing for anything other than employment at will exists.
“Special consideration” is consideration other than services incident to the
employee’s employment. Id. Examples of special consideration include “accepting a
reduced salary, releasing claims against the employer, or agreeing to purchase property
from the employer.” Id. DeFranco claims that he provided special consideration by
17
foregoing the opportunity to look for other jobs in 2006. “Relinquishing other
employment, however, generally is not alone considered ‘special consideration.’ Giving
up another position is necessary before the employee is in a position to accept and
perform the offered employment and is not a price or consideration paid to the new
employer.” Pickell v. Ariz. Components Co., 902 P.2d 392, 397 (Colo. Ct. App. 1994),
rev’d on other grounds by 931 P.2d 1184. If relinquishment of another job does not
constitute special consideration, then merely deciding not to look for another job cannot
either. In addition, it does not appear from the record that DeFranco’s foregoing a job
search was bargained for by Sun—or, indeed, that Sun was even aware that DeFranco
was considering looking for another job—and therefore it was probably not consideration
at all. See Lucht’s Concrete Pumping, Inc. v. Horner, 224 P.3d 355, 358 (Colo. Ct. App.
2009) (“Consideration is defined as something (such as an act, a forbearance, or a return
promise) bargained for and received by a promisor from a promise; that which motivates
a person to do something, especially to engage in a legal act.” (alterations and internal
quotation marks omitted)), cert. granted on other grounds, 2010 WL 341383 (Colo. Feb.
1, 2010) (No. 09SC627).
DeFranco also contends that agreeing to stay on to facilitate the merger and
staying to finish the 9,000 cases mentioned in the Amendment to the Secondment
Agreement constituted special consideration. We fail to see how these actions were
anything other than services incident to his employment. See Schur, 878 P.2d at 54.
Remaining with the company is just another way of saying that DeFranco accepted Sun’s
18
offer of employment, and his agreeing to finish the 9,000 cases was also just agreeing to
do the task that the company set for him. Refusing to perform either of these tasks would
have been refusing to do his job duties, and so they do not constitute special
consideration. (See Amendment to Secondment Agreement, Aplt. App. at 244 (defining
DeFranco’s job to include “[a]uditing an engineering queue that consists of 9,000 open
customer issues”).) Thus, DeFranco did not provide special consideration in exchange
for Sun’s alleged promise of permanent employment, and so his employment continued
to be at will. DeFranco’s breach of contract claim against Sun must therefore fail. 5
2. Promissory estoppel
Although we conclude that no valid contract providing for “permanent”
employment existed between DeFranco and Sun, DeFranco’s promissory estoppel claim
5
To the extent DeFranco also means to bring a breach of contract claim on the ground
that Defendants did not provide him with a “Comparable Position” as required by the
Secondment Agreement, such a claim must also fail. The Secondment Agreement
provides:
Upon the end of the Term, Company will make reasonable efforts as
determined by the Company to return you to a position within Company,
StorageTek, or a StorageTek Affiliate which is defined by Company as a
position similar in duties, scope, and compensation (“Comparable
Position”) to either the position which you held immediately preceding the
secondment or the secondment position.
(Aplt. App. at 209 (emphasis added).) The Amendment to the Secondment Agreement
defined DeFranco’s job as “Tech Support Manager 3, E11,” which included, among other
tasks, “[a]uditing an engineering queue that consists of 9,000 open customer issues.” (Id.
at 244.) In his deposition, DeFranco admitted that when he returned to Colorado in April
2006—after the end of the term of the Secondment Agreement—he continued to work in
the same role performing the same tasks. Therefore, Defendants complied with any
obligation they had pursuant to the Secondment Agreement to provide him with a
“Comparable Position” upon his return to Colorado.
19
may still be viable. See, e.g., Marquardt, 200 P.3d at 1131 (“In Colorado, promissory
estoppel is available as a theory of recovery when breach of contract fails.”). However,
we conclude that this claim must also fail due to a lack of special consideration.
In Pickell v. Arizona Components Co., the Colorado Supreme Court held that
“Colorado adheres to the general rule that, in the absence of special consideration or an
express stipulation as to the length of employment, employment for an indefinite term
presumptively creates an at-will employment relationship that is terminable at any time
by either party.” 931 P.2d at 1186. One could argue that the special consideration
requirement should only apply to breach of contract claims and not promissory estoppel
claims like the one we have here, because the general purpose of promissory estoppel is
to enforce promises that do not lead to the creation of a contract. See, e.g., Mariani v.
Rocky Mountain Hosp. & Med. Serv., 902 P.2d 429, 435 (Colo. Ct. App. 1994)
(recognizing that promissory estoppel claim could be brought “even though the elements
of a formal contract were lacking”). Nevertheless, we believe that Pickell forecloses such
an argument, because the plaintiff in Pickell brought only a claim for promissory
estoppel, and the Colorado Supreme Court still determined that the requirement of
“special consideration or an express stipulation as to the length of employment” applied
to that claim. See Pickell, 931 P.2d at 1186. If that requirement does not apply to
promissory estoppel claims, there would simply be no reason for the Pickell court to even
mention it. Thus, consistent with our obligation to predict how the Colorado Supreme
Court would resolve this issue, see Pompa, 520 F.3d at 1142, we must conclude that since
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DeFranco did not provide any special consideration or express stipulation as to the length
of employment, the district court properly entered summary judgment on DeFranco’s
promissory estoppel claim.
III. Conclusion
For the foregoing reasons we AFFIRM the district court’s grant of summary
judgment. Appellees’ motion to file a supplemental brief is DENIED.
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