Mowry v. United Parcel Service, Inc. , 280 F. App'x 702 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
May 29, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
STANLEY C. MOWRY,
Plaintiff-Appellant,
No. 07-1197
v. (D.C. No. 03-CV-02307-RPM)
(D. Colo.)
UNITED PARCEL SERVICE, INC.,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, LUCERO, and HARTZ, Circuit Judges.
In this diversity case, Stanley C. Mowry appeals the district court’s grant of
summary judgment to United Parcel Service, Inc. (“UPS”) on his claim that UPS
wrongfully discharged him in violation of public policy, a tort recognized under
Colorado state law. Specifically, Mowry alleges that UPS supervisor Gregg Ford
terminated his employment because he pulled his commercial vehicle off the road
during adverse road and weather conditions, as required by federal and state
regulatory law. We agree with the district court that Mowry has failed to create a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
genuine issue of material fact with respect to at least one element of the alleged
tort: He has not advanced evidence that shows Ford knew, or reasonably should
have known, at the time he terminated Mowry’s employment that Mowry believed
he was complying with federal or state safety regulations. Exercising jurisdiction
under 28 U.S.C. § 1291, we therefore affirm the district court’s grant of summary
judgment to UPS.
I
For more than five years, Mowry worked as a full time “feeder driver” for
UPS, and was responsible in that capacity for driving package trailers between
UPS’s hub in Commerce City, Colorado, and various package centers, including
the center in Rawlins, Wyoming. Throughout the course of his employment at
UPS, Mowry was a member of the International Brotherhood of Teamsters
(“Teamsters” or “union”), and his employment was governed by a collective
bargaining agreement (“CBA”) between UPS and the Teamsters. The CBA
provided that union employees could not be discharged in the absence of “just
cause,” which includes dishonesty. Like other UPS feeder drivers under union
contract, Mowry was paid by the hour.
Mowry had a history of being disciplined for failing to comply with UPS
polices and procedures. UPS had previously warned or suspended him for:
failing to properly check the trailers he was pulling, attendance problems and
irregularities in reporting his time, improperly removing an onboard computer
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from his truck, violating Department of Transportation limitations on weekly
maximum work hours, and failing to notify dispatch when he was delayed on
routes. Mowry had also been terminated on at least one occasion, and lost his
seniority on another, due to these performance problems. Each time, however, the
sanctions imposed against him were reduced to suspensions through the union’s
grievance process. Relevant to this appeal, Mowry received a written warning
memo in early October 2001 instructing him that “if [he] should ever find
[him]self delayed for more than 15 minutes for any reason [he must] notify
dispatch as to the reason immediately without exception.” He was also warned
that any failure to comply with that directive “may result in formal discipline at
the appropriate level.”
On the night of April 26 and the morning of April 27, 2002, Mowry drove
his regular round-trip route between Commerce City, Colorado, and Rawlins,
Wyoming. The feeder division manager at that time, Gregg Ford, suspected that
Mowry was falsifying his time and trip records. Without Mowry’s knowledge,
Ford sent two UPS supervisors to follow Mowry on the trip. On the return leg of
the journey, Mowry was pulling two empty tandem trailers back to Commerce
City. At around 2:15 a.m., between Rawlins and Laramie, he encountered a
wrecked semitrailer stretched across the interstate highway and maneuvered
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around it. Shortly thereafter, he stopped his truck at the Wagonhound rest area,
where he remained for almost four hours. 1
The parties dispute the reasons for Mowry’s stop at Wagonhound.
According to Mowry, he stopped because of inclement weather and the resulting
hazardous road conditions. Noting the jack-knifed truck just outside the rest area,
he claims that wind, snow, ice, and heavy fog made it too dangerous to operate a
semitrailer until conditions improved. At the time he chose to stop, Mowry
observed that there was black ice on the road, and that the rest area was full of
other semitrailers.
Like all UPS trucks, the vehicle Mowry was driving that night was
equipped with an onboard computer. This device records such things as truck
speeds and employee working hours, and allows drivers to report the status of
their trip by entering predesignated codes. Because the system did not have a
code to indicate a stop based on impassable road conditions, Mowry entered a
code for a “breakdown on road.” He did not, however, call the UPS dispatch
office in Commerce City to report his delay, despite the requirement that he do so
if he experienced any delay longer than 15 minutes, and despite the presence of a
pay phone inside the Wagonhound rest area. 2
1
The Wagonhound rest area is located off of Interstate 80, approximately
50 miles west of Laramie, Wyoming.
2
Mowry alleged that he was unaware of the pay phone and that, although
he had a cellular phone on his person, he did not have cellular service at the rest
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The UPS supervisors following Mowry, Rick Durante and Ron Blake (both
former feeder drivers), each acknowledged during discovery that there was a jack-
knifed truck just outside of the Wagonhound rest area, but stated that the weather
was not severe enough to warrant pulling off the road. They further indicated that
although the road was slushy and wet from a recent storm, other trucks were
proceeding along the interstate highway in both directions at the time Mowry
stopped, and that their own vehicle had no trouble driving behind Mowry’s UPS
semitrailer. The two supervisors concluded that Mowry was making an
unauthorized stop. At approximately 6:00 a.m. that same morning, Mowry
recommenced his return trip to Commerce City, arriving at the main UPS terminal
around 9:00 a.m. on Saturday, April 27. No other employees were present, as the
dispatch office was staffed only until 6:00 or 6:30 a.m. on Saturday mornings.
At some point before Mowry returned to work the following Monday, Ford
reviewed Mowry’s time card from the trip, which indicated that Mowry had
arrived in Commerce City a few minutes after 9:00 a.m. and had checked out
approximately 40 minutes later. Ford spoke with Durante and Blake, who relayed
to him their observation that the road was passable when Mowry stopped at
Wagonhound. He also reviewed the tachometer printout from the onboard
computer in Mowry’s truck. That report showed that Mowry traveled at normal
area. At the summary judgment stage of proceedings, we accept as true his
version of the facts.
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speeds—up to 70 miles per hour—for most of the return leg of the trip, including
before and after his stop at Wagonhound. Ford further noted that Mowry had
removed his timecard from the onboard computer two or three times during the
trip, which prevented the system from capturing complete information about the
journey, and that Mowry had entered the code “breakdown on road” for roughly
the period of time he remained at the rest area. According to Ford, his review led
him to conclude that Mowry had been dishonest in reporting the reasons for his
stop and had stolen time from the company. 3 Because drivers are entitled to an
unpaid one-hour meal break on each trip, and Mowry stopped for about 3 hours
and 45 minutes, the time stolen was believed to be 2 hours and 45 minutes.
When Mowry returned to work the following Monday, Ford called him into
his office at the beginning of the shift and discharged him for dishonesty. Ford
did not question Mowry about the incident at Wagonhound. Nor did Mowry
attempt to offer an explanation at the time Ford fired him. Later the same day,
3
Ford had reason to believe that Mowry had acted similarly on at least one
prior occasion. He had sent Durante to follow Mowry along the same route on
April 22 to 23. On that night, Durante observed that Mowry stopped during his
return trip to Commerce City at a highway-off ramp and turned his lights off for
approximately three hours. Durante stated that the roads on the evening in
question were clear, and that there was no obvious reason for the stop. Mowry
did not call the dispatch office to advise of this delay, and reports from that trip
indicate that Mowry entered the system code for “breakdown on road” for the
period of time his truck was not moving. Mowry also did not report any
mechanical problems or explain the delay to his supervisors when he returned to
Commerce City. He reported all of the time from that trip, including the time he
was stopped, as working time.
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however, Mowry filed a grievance with the union, claiming that he had stopped at
Wagonhound to wait out a storm that caused adverse road conditions, including
high winds, fog, ice, and snow.
In accordance with the CBA, Mowry received a grievance hearing before a
committee of union and management representatives. He rebutted the charge of
dishonesty by alleging that he stopped at Wagonhound to avoid violating safety
regulations that required him to cease operating a commercial vehicle in
hazardous conditions. See 49 C.F.R. § 392.14 (“Extreme caution in the operation
of a commercial motor vehicle shall be exercised when hazardous conditions . . .
adversely affect visibility or traction. . . . If conditions become sufficiently
dangerous, the operation of the commercial motor vehicle shall be discontinued . .
. .”); see also 4 Colo. Code Regs. § 723-6 ¶ 6102(a)(I) (incorporating by reference
49 C.F.R. Part 392 as a Colorado state regulation). The grievance panel
ultimately upheld Ford’s decision to discharge Mowry for dishonesty.
Following the failure of his union appeal, Mowry filed suit against UPS in
Colorado state court, challenging the termination of his employment on three
separate grounds: (1) wrongful discharge in violation of public policy, (2)
shorted wages, and (3) intentional infliction of emotional distress. With respect
to the first claim, he again asserted that continuing his journey on the morning of
April 27, 2002, would have caused him to violate safety regulations, and that he
was therefore terminated in violation of public policy. UPS removed the suit to
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federal court on diversity of citizenship grounds, and moved to have the case
dismissed on the basis that Mowry’s claims were preempted by § 301 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. § 185. The district court
agreed and dismissed Mowry’s claims.
On initial appeal to this court, we affirmed the district court’s judgment in
part and reversed in part. Mowry v. United Parcel Serv. (“Mowry I”), 415 F.3d
1149 (10th Cir. 2005). Specifically, we affirmed the dismissal of Mowry’s claims
based on shorted wages and intentional infliction of emotional distress,
concluding that these claims were “inextricably intertwined” with the parties’
CBA and thus preempted by § 301 of the LMRA. Id. at 1157-58. Applying the
analysis articulated in Lingle v. Norge Division of Magic Chef, 486 U.S. 399(1988), however, we reversed the district court’s dismissal of Mowry’s claim for
wrongful discharge in violation of public policy, holding that it was not
preempted by § 301. See Mowry I, 415 F.3d at 1152-57. The case was remanded
for further proceedings consistent with our decision. Id. at 1158.
On remand, and after full discovery on Mowry’s public policy claim, the
district court granted summary judgment to UPS. It concluded that Mowry had
failed to raise a genuine issue of material fact as to whether Ford was aware or
should have been aware, at the time of his decision to terminate Mowry, that
Mowry reasonably believed he was required to stop operating his semitrailer due
to weather conditions. Mowry now timely appeals from that adverse decision.
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II
Mowry raises only one issue on appeal. He disputes the district court’s
conclusion that he failed to create a genuine issue of material fact on the question
of whether Ford knew, or reasonably should have known, that Mowry believed he
was required by law to cease driving his vehicle at Wagonhound. We review the
district court’s grant of summary judgment de novo, applying the same legal
standard as the district court. MediaNews Group, Inc. v. McCarthey, 494 F.3d
1254, 1260 (10th Cir. 2007). 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). We construe the factual
record, and all reasonable inferences derived therefrom, in the light most
favorable to Mowry, the non-moving party. See Rost v. Steamboat Springs RE-2
Sch. Dist., 511 F.3d 1114, 1119 (10th Cir. 2008). Because we are sitting in
diversity, we apply the substantive law of the forum state. Meyers v. Ideal Basic
Indus., Inc., 940 F.2d 1379, 1382 (10th Cir. 1991). There is no dispute that
Colorado law governs in this case.
To avoid summary judgment on his claim of wrongful discharge in
violation of public policy, Mowry was required to adduce sufficient evidence to
create a genuine issue of material fact on each element of the tort. Adler v. Wal-
Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). In other words, his failure
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to show a genuine dispute of material fact on any one of the necessary elements
of his claim is fatal to his case. Id. In Martin Marietta Corp. v. Lorenz, 823 P.2d
100 (Colo. 1992), the Colorado Supreme Court first recognized the tort of
wrongful discharge in violation of public policy, and outlined the four elements
necessary for establishing such a claim. It stated that to prove a prima facie case
of this tort, an employee must show:
[1] that the employer directed the employee to perform an illegal act
as part of the employee’s work related duties . . . ; [2] that the action
directed by the employer would violate a specific statute relating to
the public health, safety, or welfare, or would undermine a clearly
expressed public policy relating to the employee’s basic
responsibility as a citizen . . . ; [3] that the employee was terminated
as the result of refusing to perform the act directed by the employer
. . . ; [and] [4] that the employer was aware, or reasonably should
have been aware, that the employee’s refusal to comply with the
employer’s order or directive was based on the employee’s
reasonable belief that the action ordered by the employer was illegal
....
Id. at 109.
Mowry has failed to satisfy his burden at summary judgment of coming
forward with any evidence in support of the fourth element. 4 There is no
evidence in the record demonstrating that Ford knew or should have known, at the
time he terminated Mowry, that Mowry’s decision to stop driving on the night in
question was based on a reasonable belief that he would violate federal and state
4
Because we resolve the issue on the fourth element of the claimed tort, we
express no opinion on whether the factual record provides support for any of the
remaining three elements.
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regulations by continuing his journey. 5 See id. at 110 (requiring that an employer
receive “fair notice, prior to the discharge decision, of circumstances supportive
of the employee’s reasonable belief that the action directed by the employer”
violates public policy (emphasis added)).
A
We begin with the question of Ford’s actual knowledge. Durante and Blake
reported to Ford that they did not consider the road conditions to be hazardous.
Rather, they stated that the road was merely slushy and wet and that traffic was
5
UPS argues that we may affirm the district court on the alternative basis
that Mowry, a union employee protected from termination by the provisions of the
CBA, has no cause of action for public policy discharge under Colorado law.
UPS contends that because the Colorado Supreme Court has referred to this tort
as an “exception” to the general rule that Colorado employees are employed at
will, see Lorenz, 823 P.2d at 104 (Colo. 1992), that court has restricted the
availability of the tort to at-will employees. Mowry counters that the court has
never explicitly denied the cause of action to a union employee, and likely would
not do so, and that in any event we implicitly decided this question in his favor in
Mowry I.
Our duty as a federal court sitting in diversity is generally to predict how
the state supreme court would rule on an unsettled question of state law presented
to us. See, e.g., Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.
2003). Because Mowry’s claim would fail even if the Colorado Supreme Court
extended the tort to cover employees protected from termination by a CBA,
however, we need not decide the question urged upon us by UPS. Moreover, we
note that we did not settle this question in Mowry I, where we reached only the
issue of whether Mowry’s claims were preempted. 415 F.3d at 1150, 1157. Our
decision did not require us to address—by implication or otherwise—the
subsidiary question of whether a union employee such as Mowry can properly
assert a cause of action under the tort at issue. See id. at 1152-57.
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flowing normally in both directions at the time Mowry stopped. 6 Furthermore,
the tachometer report of the trip indicated that, rather than slowing down in
response to increasingly adverse conditions, Mowry’s truck maintained a
relatively constant speed before and after the stop. Specifically, the report
showed that the truck had traveled at an average speed of 55 to 65 miles per hour
both before and after the stop at Wagonhound, that Mowry passed the accident
near Wagonhound at a fairly rapid rate of speed, and that his truck reached speeds
of 70 miles per hour following his departure from the rest area. Mowry also did
not call the dispatch office to explain the delay, either at the time he experienced
the delay or once he resumed his journey. Ford thus had no actual knowledge of
the reason for Mowry’s stop.
Mowry does not dispute these facts. To be sure, he admitted that nobody at
UPS was actually aware at the time of his termination that he stopped at
Wagonhound due to hazardous weather conditions. He simply had not told
anyone of the incident before Ford fired him. Mowry does, however, advance a
legal argument in support of his actual knowledge contention. He encourages us
to impute Durante and Blake’s alleged knowledge of the adverse road
conditions—and thus knowledge of Mowry’s reasonable belief that continuing to
drive would have been unlawful—to UPS as a whole. Because those supervisors
6
Accepting, as we must, Mowry’s description of the road conditions, we
nonetheless recognize that there is no dispute in the record that Durante and Blake
reported to Ford that the road was passable and merely slushy.
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observed the same hazardous road conditions that Mowry did, and because we
must accept his description of those road conditions at the summary judgment
stage, he argues that UPS knew the road was dangerous. But in advancing this
argument, Mowry fails to cite any authority from the Colorado courts indicating
that the knowledge element of a Lorenz tort can be satisfied by the knowledge of
the corporation as a whole, rather than that of the individual decisionmaker who
made the termination decision. The only case he does cite in support of his legal
contention—a federal trademark case—merely sets forth the general principle of
agency law that a corporation is charged with the knowledge of its employees.
See W. Diversified Servs., Inc. v. Hyundai Motor Am., Inc., 427 F.3d 1269, 1276
(10th Cir. 2005). As we view the matter, the dearth of authority presented,
particularly applicable state authority, demonstrates “either that there is no
authority to sustain [Mowry’s] position or that [he] expects the court to do [his]
research.” Rapid Transit Lines, Inc. v. Wichita Developers, Inc., 435 F.2d 850,
852 (10th Cir. 1970). Given that there is precedent in related contexts that
appears to be contrary to his position, we decline to countenance his inadequately
developed argument. See, e.g., Campbell v. Gambro Healthcare, Inc., 478 F.3d
1282, 1290 (10th Cir. 2007) (refusing to impute a subordinate’s alleged
retaliatory intent to a decisionmaker in evaluating whether the plaintiff had
created a genuine issue of material fact on the existence of a casual connection
between the plaintiff’s attempted exercise of FMLA rights and the
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decisionmaker’s termination of the plaintiff’s employment); see also Kendrick v.
Penske Transp. Servs., Inc., 220 F.3d 1220, 1231-32 (10th Cir. 2000).
B
Failing to discern any genuine issue of material fact as to whether Ford had
actual knowledge of Mowry’s claim, we next consider whether Mowry has shown
that Ford should have known that Mowry reasonably believed he was required by
law to stop. Mowry urges that Ford should have known of the adverse conditions
because he reviewed the data from the onboard computer in Mowry’s truck, which
indicated that Mowry had input the code “breakdown on road.” We conclude,
however, that neither this piece of information, nor any of the other information
available to Ford prior to Mowry’s termination, sufficiently suggested adverse
road conditions such that Ford should have been aware that Mowry reasonably
believed that he was legally obligated to stop his vehicle.
Four undisputed facts are instructive. First, the tachometer report from
Mowry’s truck showed that Mowry maintained normal travel speeds both before
and after he stopped at Wagonhound. This provides an objective inference that
the road conditions did not prevent driving at normal speeds. Second, although
the two supervisors told Ford that there was a jack-knifed semitrailer on the
interstate immediately before Mowry stopped, they did not state that the accident
was caused by the weather or hazardous road conditions. In fact, both supervisors
indicated that Mowry was able to move around the accident with relative ease.
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Third, the code “breakdown on road” was not sufficient to allow Ford to deduce
that Mowry stopped due to adverse road conditions. Any number of
reasons—legitimate or otherwise—could have prompted Mowry to enter the code,
and Ford would therefore have been unable to determine that Mowry stopped due
to hazardous roads by virtue of that code alone. Finally, Mowry never called to
notify UPS dispatch that he was going to be delayed, as Ford would reasonably
have expected him to do if he encountered bad weather—particularly because
Mowry had received a written notice instructing him to report such delays
“without exception.” Ford consequently had no reason to be aware that Mowry
was delayed as a result of hazardous road conditions.
C
Mowry raises a final argument based on policy. He contends that UPS
should not have been able to terminate his employment before providing him with
an opportunity to explain his actions. On this score, Mowry reasons that because
Ford allegedly failed to give him an occasion to convey the reasons for which he
stopped, and because he was not aware that Ford was considering firing him, it
would be manifestly unjust to leave him without a remedy on the basis that Ford
was not aware of his protected actions. To do so, he claims, would allow
employers such as UPS to avoid liability for the tort of wrongful discharge in
violation of public policy by virtue of ignorance alone.
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Mowry’s argument is neither consistent with the Colorado Supreme Court’s
decision in Lorenz, nor with the facts presented in this case. In Lorenz, the court
unambiguously recognized that the cause of action at issue is not available unless
the employer was aware or should have been aware of the protected action prior
to its decision to terminate the employee. Two primary rationales guided the
court in imposing this requirement. First, the element is designed to provide an
“employer with a fair opportunity to distinguish between the conscientious
employee concerned about the legality of particular conduct demanded by the
employer and the employee that refuses to carry out an order or directive . . . out
of insubordination or some improper motive.” Id. at 110 (emphasis added).
Second, the knowledge element “provide[s] the employer with fair notice, prior to
the discharge decision, of circumstances supportive of the employee’s reasonable
belief that the action directed by the employer would be manifestly illegal, [or]
would be contrary to the employee’s duty as a citizen . . . .” Id. (emphasis
added). Were Mowry’s argument accepted as a matter of law, it would undercut
these twin rationales by allowing a cause of action to proceed even where an
employer lacked the essential fair notice and fair opportunity to make an
appropriate employment decision. That is not the law of Colorado.
The contention advanced is also belied by the undisputed facts. Viewing
the evidence in the light most favorable to Mowry, it is undisputed that he had a
cellular phone on the night in question, and that UPS policy required him to
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report any delay in his route of greater than 15 minutes “without exception.”
Mowry simply never availed himself of the opportunity to report his delay.
Although Mowry asserts that his cellular phone had no reception at Wagonhound,
he does not dispute that he could have used his cellular phone after he resumed
his journey at 6:00 a.m. to call the dispatch office or, at a minimum, leave a
message explaining why he was delayed. He also could have taken other steps to
inform UPS of his delay and the reasons for it, including by reporting the incident
in written form when he returned to Commerce City on the morning of April 27,
or by otherwise seeking out a pay phone at some point during the return trip. But
the record unambiguously reveals that he did not attempt to inform Ford, or
anyone at UPS, of his reasons for the stop prior to his discharge. In short,
Mowry’s argument that he never had an opportunity to explain why he stopped on
the night in question is contradicted by the undisputed facts in the record.
III
For the foregoing reasons, we AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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