Sidlo v. MillerCoors

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 7, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JAN SIDLO,
Plaintiff - Appellant,
v. No. 17-1000
(D.C. No. 1:15-CV-01672-RPM)
MILLERCOORS, LLC, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, PHILLIPS, and MORITZ, Circuit Judges.
_________________________________
Jan Sidlo, a man of Slovakian descent who was terminated from his job as a
mechanic and operating engineer for MillerCoors, LLC, brought suit alleging
discrimination based on national origin and age in violation of Title VII of the Civil
Rights Act of 1964 and the Age Discrimination in Employment Act, wrongful
termination in violation of Colorado public policy, and breach of contract. The
*
This order and judgment is not binding precedent, except under the doctrines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.
district court granted summary judgment for MillerCoors on all claims.1 Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
Sidlo was born in Bratislava in what is now Slovakia. In March 2002, he was
hired by MillerCoors’s predecessor company as a “Mechanic/Operating Engineer.”
Appellant’s App. at 51. His employment there was governed by the “Supplemental
Policy: Golden Manufacturing Operators, Maintenance Employees and Technicians”
(Supplemental Policy). Id. at 216. Under the terms of the policy, MillerCoors
terminated Sidlo three times. He was reinstated through the internal appeals process
after the first two terminations.2 This suit concerns his third and final termination in
2013.
The first major disciplinary action against Sidlo occurred in August 2012,
when MillerCoors terminated him for allegedly stealing company property and for
driving a company vehicle off company property.3 Sidlo appealed the August 2012
1
Sidlo withdrew his age-discrimination claim before the district court entered
this order.
2
The Supplemental Policy allows employees to appeal formal, written
disciplinary actions to an appeals board, which reviews the facts of the case and
renders a final and binding decision upholding, modifying, or reversing the
disciplinary action.
3
This (and Sidlo’s following two terminations) was a “first offense
termination[.]” Id. at 225. The Supplemental Policy explains that “[s]ome violations
are so serious that the first offense warrants termination. An employee may be placed
on suspension in order to investigate an incident or issue in question; pay during such
suspension will be dependent upon the circumstances. Disciplinary suspensions are
2
termination, and so reduced the termination to an eighty-hour suspension.
MillerCoors reinstated him in October 2012.4
Sidlo alleges that when he returned from his 2012 suspension, he “was
subjected to heightened scrutiny and hostility at work.” Appellant’s Opening Br. at
20. He describes six different discriminatory actions after his return: (1) a comment
about his national origin, (2) interference with his computer access, (3) refusal to
provide a voucher to replace scratched safety glasses, (4) singling him out to perform
certain duties, (5) discrimination and harassment during the litigation, and
(6) retaliation for reporting another employee for not wearing protective gear.5 We
describe these events in turn.
considered a final written warning and can be up to ten (10) scheduled working days
without pay (up to 80 hours of pay).” Id.
For less-serious offenses, the Supplemental Policy describes three disciplinary
actions—a written warning for the first offense, a final written warning for the
second offense, and discharge for the third offense. Id. at 226.
4
MillerCoors argues that Sidlo can’t use this suspension to support his claim
because he didn’t raise it in the district court. But Sidlo concedes that this incident
didn’t stem from national-origin or age discrimination.
5
At the district court, Sidlo also asserted that he was “harassed about his
prominent accent” and that coworkers called him “Borat.” Appellant’s App. at 10, 65.
Sidlo failed to include these allegations in the briefing before this court. So they’re
waived. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998)
(noting that issues not argued in appellant’s opening brief are waived).
3
First, Sidlo alleges that his supervisor, Greg Miller, said that he would “not
tolerate any foreigner bullshit”6 and that Sidlo was “walking on thin ice and had
better watch every step.” Appellant’s Opening Br. at 6. Sidlo describes this
conversation as “disrespectful” and alleges he later attempted to talk to Human
Resources about the incident. Appellant’s App. at 83–84.
Second, on returning from that same 2012 suspension, Sidlo couldn’t access
the computer system. He claims to have raised this problem to multiple managers,
and yet “nobody did anything about it.” Id. at 87. Sidlo says that he told Miller about
the computer-access issue, but that nothing happened.
MillerCoors offered evidence, including a two-week e-mail chain between
Miller and the company’s IT department, that Miller had attempted to fix Sidlo’s
computer problem. Miller stated in one such e-mail: “We need to know what the status
of this is! The employee needs to have access to a computer to do his job.” Id. at 124. But
Sidlo frames the lack of computer access as discrimination, and argues that it
interfered with his ability to do his job.
Third, after his 2012 return, Sidlo contends someone scratched the prescription
safety glasses that MillerCoors had provided to him through a voucher program. He
said his glasses looked “like somebody run the sandpaper over it or something.” Id. at
86. But employees generally receive a voucher for new glasses only once a year. To
qualify for a second voucher within the same year, the employee needs to show that
6
Sidlo’s description of this statement took various forms. The phrasing that we
use in the opinion text comes from Sidlo’s briefing.
4
the damage resulted from workplace use, not from employee negligence. He
requested that Miller sign paperwork enabling the company to provide a second
voucher for a new pair of prescription safety glasses. And after not hearing from
Miller, Sidlo reached out to safety-department employee, Hugh Garrison, who
ultimately approved the glasses, but not until after Sidlo received a warning for not
wearing safety glasses.
Fourth, in January 2013, MillerCoors terminated Sidlo because of
insubordination. Miller claims that he asked Sidlo to investigate a steam leak and that
Sidlo didn’t follow up with Miller or fix the problem. This led to Sidlo’s termination.
Sidlo appealed, which reduced the termination to a final warning, with a forty-eight-
hour suspension. Sidlo now alleges that “Miller singled [out] Mr. Sidlo” to repair the
steam leak. Appellant’s Opening Br. at 20.
Fifth, Sidlo alleges that this litigation shows his mistreatment by MillerCoors,
arguing that “[t]he national origin discrimination and harassment even permeates into
this litigation as becomes evident in the context of the questions posited by counsel
for MillerCoors during his deposition.” Id. at 21.7
7
Sidlo doesn’t explain this argument but cites to pieces of the deposition
testimony as “examples of these exchanges.” Appellant’s Opening Br. at 21 n.4
(citing Appellant’s App. at 80, 57:2–23; 86, 96:4–25, 96:1–4). For example, the
following exchange (not specifically referenced by Sidlo) took place during Sidlo’s
deposition:
MillerCoors’s Lawyer: Congratulations. Now let me get back to my
question.
Sidlo: Why you are sarcastic?
5
And sixth, in May 2013, Sidlo reported another hourly employee, Mike Lopez,
for not wearing the correct personal protective equipment. Lopez was disciplined as a
result. Sidlo later alleges that his September 2013 termination was a form of
retaliation for reporting Lopez.
After these incidents, in September 2013, the events culminating in Sidlo’s
final termination took place. He was assigned to perform a procedure known as the
Lockout/Tagout on an ammonia system on September 23. This is a safety procedure
designed to ensure that dangerous machines are properly shut off before the
completion of maintenance or servicing work, in this case, an overhaul of the
ammonia system. The piece of equipment to be replaced is locked out and isolated,
and then tagged to notify others that the piece of equipment will be replaced.
MillerCoors employees changed the plan for the Lockout/Tagout procedure
before Sidlo performed it. But the day after Sidlo completed the Lockout/Tagout
procedure, the crew working on the system noticed that the procedure hadn’t been
correctly completed.
Brian Kostrna, a utilities employee, reported a “near miss.” Any employee can
report a near miss. A near miss does not have a precise definition; employees can
report any type of safety concern.
MillerCoors’s Lawyer: Because you’re not answering questions, you’re
narrating. So would you please back up and let me understand
something.
Appellant’s App. at 86.
6
Randy Rea, the manager of Sidlo’s department, learned of the near miss and
that Sidlo had performed the Lockout/Tagout procedure that precipitated the incident.
In his capacity as manager, Rea began an investigation into the near miss, and
Process Safety Engineer Ron Henry completed an in-depth investigation. The
incident-investigation form named four other utilities operators as being involved
with the incident. Henry concluded that human factors caused the near miss and that
the operator (Sidlo) hadn’t followed the plan or complied with the corrections to the
plan. He also identified two failings by the maintenance team.
About a week later, a second incident took place. In another area of the
facility, a hose carrying ammonia was connected to a vent line instead of a pump-out
station, resulting in ammonia being released into the atmosphere. The release
triggered a vent alarm and a partial evacuation of the brewery. MillerCoors blamed
Sidlo for the incident. Sidlo, in turn, complained about other employees touching and
mislabeling the equipment. He now alleges that the mislabeling was intentional.
MillerCoors categorized the ammonia release as an “incident,” which
prompted an investigation, this time by Rea, Sidlo’s manager. During his
investigation, Rea received reports that Sidlo had retaliated against Kostrna for
reporting the near miss by telling Kostrna he would no longer work with him.
On October 2, 2013, after the investigation, MillerCoors terminated Sidlo’s
employment for (1) gross misconduct or negligence; (2) harassing, abusing,
assaulting, or threatening another person by threatening not to work with Kostrna;
and (3) insubordination. Sidlo appealed. Typically, the appeals process includes a
7
pre-appeal meeting to discuss in general terms what arguments and evidence the
parties will present at the appeal, though the Supplemental Policy does not mention
any need for one. But MillerCoors didn’t hold such a meeting and instead proceeded
straight to the appeal-board hearing.
At the hearing, MillerCoors proffered three reasons for Sidlo’s termination:
(1) the near miss, (2) Sidlo’s retaliation against the employee who reported the near
miss, and (3) the ammonia release. During the proceedings, Sidlo alleged age
discrimination, but he didn’t mention national-origin discrimination. After
presentations from both sides, the appeal board upheld his termination.
On April 4, 2014, Sidlo filed a charge of discrimination with the Equal
Employment Opportunity Commission, and received a notice of right to file. The
following day, he filed a complaint in federal district court.
Sidlo’s complaint sought relief for (1) national-origin discrimination and
harassment, (2) age discrimination, (3) wrongful discharge in violation of Colorado
public policy, and (4) breach of an implied contract of employment. MillerCoors
moved for summary judgment on all claims. In response to the motion for summary
judgment, Sidlo withdrew his age-discrimination claim. The district court ruled in
favor of MillerCoors on the remaining three claims, dismissing the case and awarding
costs to MillerCoors. Sidlo timely appealed.
8
DISCUSSION
On appeal, Sidlo argues that the district court improperly weighed the
evidence at the summary-judgment stage and that he had presented sufficient
evidence to require a jury determination of his claims under Title VII (disparate
treatment and hostile-work-environment), Colorado public policy, and breach of
contract. After stating the applicable standard of review, we address each argument in
turn.
A. Standard of Review
We review de novo a district court’s grant of summary judgment. Eisenhour v.
Weber Cty., 744 F.3d 1220, 1226 (10th Cir. 2014). And we view the evidence in the
light most favorable to the nonmoving party, here Sidlo. Id.
Viewing the evidence this way, summary judgment is appropriate if “the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue is
‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact
could resolve the issue either way. . . . An issue of fact is ‘material’ if under the
substantive law it is essential to the proper disposition of the claim.” Adler, 144 F.3d
at 670. Applying this standard to Sidlo’s claims, we affirm the district court’s grant
of summary judgment in favor of MillerCoors.
B. Credibility Determinations
Sidlo argues that the district court erred in granting summary judgment,
contending that “[t]he District Court’s opinion is infused with cursory weighing of
9
the evidence, drawing of inference from the facts, and credibility assessments.”
Appellant’s Opening Br. at 16. Based on these alleged errors, he argues that we
should vacate the judgment and remand.
In support, Sidlo points to the district court’s statement describing events as
“minor incidents . . . [in]sufficient to show that plaintiff’s national origin was a
motivating factor in any of them, or even taking all of them together.” Appellant’s
App. at 299. Sidlo claims that the district court’s characterization of the events as
“minor” constituted improper weighing. He also highlights the district court’s
statement that “[i]n large part the plaintiff attempts to excuse and explain his conduct
in the incidents that were the bases for the termination that was upheld by the appeals
panel.” Id. at 299. Sidlo argues that the word “excuses” is “charged” and indicates a
credibility determination. Oral Argument at 5:40–6:05, Sidlo v. MillerCoors, LLC,
No. 17-1000 (10th Cir. Nov. 15, 2017).
But this argument is unavailing. Rather than inappropriate weighing, the
district court engaged in appropriate evaluation of the evidence when it determined
that it was insufficient as a matter of law to support a claim for national-origin
discrimination. After the quoted comments, the district court noted that “[t]here has
been no showing that employees not in his protected group were treated differently or
that he had to endure an abusive working environment.” Appellant’s App. at 299.
Contrary to Sidlo’s characterization, such conclusions are appropriate at the
summary-judgment stage.
10
At that stage, a reviewing court must examine the factual record and
reasonable inferences drawn therefrom in the light most favorable to the non-moving
party, but it may grant summary judgment when the record taken as a whole couldn’t
lead a rational trier of fact to find for the non-moving party. Penry v. Fed. Home
Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998). A court’s proper role
thus involves determining whether a jury could reasonably find that the plaintiff
proved his case by the quality and quantity of the evidence. See Anderson v. Liberty
Lobby Inc., 477 U.S. 242, 254 (1986).8 That’s what happened here—the court found
Sidlo’s evidence lacking.
C. Title VII Claims
Under Title VII of the Civil Rights Act of 1964, it’s unlawful to “discharge
any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . national origin.” 42 U.S.C. § 2000e-2(a)(1). Accompanying
regulations define national-origin discrimination as “the denial of equal employment
opportunity because of an individual’s, or his or her ancestor’s, place of origin; or
because an individual has the physical, cultural or linguistic characteristics of a
national origin group.” 29 C.F.R. § 1606.1 (2017). Sidlo generally alleges “national
8
Sidlo also argues that because the court’s “underlying holdings and findings”
were allegedly ambiguous, we should “vacate the summary judgment and remand for
a statement of reasons.” Appellant’s Opening Br. at 16. We see no ambiguity with
either the holdings or the findings.
11
origin discrimination and harassment.” Appellant’s Opening Br. at 21. But a worker
facing discrimination has access to two claims for relief: hostile work environment
and disparate treatment. So we address each possible claim in turn, despite Sidlo’s
using them interchangeably, and ask whether Sidlo has shown a dispute of material
fact that would render summary judgment inappropriate.
1. Disparate Treatment
To prevail on a disparate-treatment Title VII claim, “a plaintiff must show that
his employer intentionally discriminated against him for a reason prohibited by the
statute.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1306 (10th Cir. 2005). We
use a three-step analysis, which entails that (1) the employee establish a prima facie
case of discrimination; (2) the employer show that it had a legitimate, nondiscriminatory
reason for its action, and (3) the employee show that the employer’s legitimate reasons
are “mere pretext” for impermissible discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 798, 802 (1973); accord Potter v. Synerlink Corp., 562 F. App’x 665, 673 (10th
Cir. 2014) (unpublished).
A prima facie case of discrimination requires the plaintiff to show: (1) that he
is a member of a protected class, (2) that he suffered an adverse employment action,
and (3) that the adverse employment action took place under circumstances giving
rise to an inference of discrimination. E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800
(10th Cir. 2007). Sidlo characterizes the initial denial of a new voucher for security
12
glasses and the failure to solve his computer-access issues as “adverse employment
actions.”9 Presumably, he also disputes his final termination as an adverse action.
Yet even assuming that these actions qualify as “adverse employment actions,”
Sidlo has failed to show the requisite inference of discrimination. As the district court
noted, Sidlo’s factual allegations were “not sufficient to show that [his] national
origin was a motivating factor in any of them, or even taking all of them together.”
Appellant’s App. at 299. Sidlo points to one comment from his supervisor, Miller,
that he would “not tolerate any foreigner bullshit.” Appellant’s Opening Br. at 6. But
Sidlo doesn’t connect that comment with any of the potential adverse actions. Under
these meager facts, no reasonable jury could find discrimination, and as such, Sidlo
has failed to establish a prima facie case even of discriminatory treatment—step one
9
In the briefing, Sidlo conflates the disparate-treatment claim with the hostile-
environment claim, arguing that “[i]n determining whether an actionable hostile work
environment claim exists, we look to all the circumstances, including the frequency
of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Appellant’s Opening Br. at 24 (quoting
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)). In this
vein, he argues that “the incidents were a progression after the initial discipline on or
about August 23, 2012” and mentions, in addition to the glasses and computer
incidents, MillerCoors’s characterization of his alleged use of a company vehicle,
MillerCoors’s conflating his acknowledgement of receiving disciplinary warning
reports as an admission to the truth or validity of the same, that he didn’t fail to
follow procedures regarding the near miss, and that the pump out and vent header
were intentionally mislabeled. Appellant’s Opening Br. at 23–24.
13
of the test. And so summary judgment was appropriate for the disparate-treatment
claim.10
2. Hostile Work Environment
But employers also violate Title VII if they permit a hostile work environment
caused by national-origin discrimination. Hernandez v. Valley View Hosp. Ass’n, 684
F.3d 950, 957 (10th Cir. 2012). A prima facie claim of hostile work environment
requires the plaintiff to prove (1) that he belonged to a protected class, (2) that he
suffered unwelcome harassment, (3) that the harassment was based on national
origin, and (4) that the harassment was so severe or pervasive that it “altered a term,
condition, or privilege of [his] employment and created an abusive working
environment.” Lounds v. Lincare, Inc., 812 F.3d 1208, 1222 (10th Cir. 2015)
(quoting Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007)); see also
Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007) (explaining that to
avoid summary judgment a plaintiff “must show that a rational jury could find that
the workplace is permeated with discriminatory intimidation, ridicule, and insult, that
is sufficiently severe or pervasive to alter the conditions of the victim’s employment
10
Even if we were to move past step one, we would likely find legitimate
nondiscriminatory reasons for MillerCoors’s actions. MillerCoors granted Sidlo a
second voucher for new glasses. His termination interrupted his computer access, but
Miller worked with IT to resolve the computer concerns. And Sidlo’s involvement in
the near miss, his retaliation toward another MillerCoors employee, and the ammonia
release resulted in his third, and final, termination. These events constitute legitimate
reasons for termination. Sidlo’s assertions to the contrary don’t create a genuine
dispute of material fact. See Branson v. Price River Coal Co., 853 F.2d 768, 772
(10th Cir. 1988) (“[M]ere conjecture that [the] employer’s explanation is a pretext for
intentional discrimination is an insufficient basis for denial of summary judgment.”).
14
and create an abusive working environment”) (quoting Sandoval v. City of Boulder,
388 F.3d 1312, 1326–27 (10th Cir. 2004)).
This four-part claim can be broken down into two requirements: (1) evidence
of harassment based on national origin and (2) evidence of severity or pervasiveness
sufficient to create a hostile environment. See Unal v. Los Alamos Pub. Sch., 638 F.
App’x 729, 736–38 (10th Cir. 2016) (unpublished). We address each in turn.
No one disputes that Sidlo’s Slovakian heritage puts him in a protected class.
But Sidlo points to only one incident stemming from national-origin-based animus,
Miller’s statement that he would “not tolerate any foreigner bullshit.” Appellant’s
Opening Br. at 6. This one comment may be enough to show harassment stemming
from animus toward national origin, but it certainly fails the second prong of the
test—severity or pervasiveness.
To determine whether the harassment is sufficiently severe and pervasive as to
create a hostile environment, we consider various factors, including “the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Lounds, 812 F.3d at 1222 (quoting Sprague
v. Thorn Arms, Inc., 129 F.3d 1355, 1365 (10th Cir. 1997)). In demonstrating these
factors, the plaintiff “must show more than a few isolated incidents” of enmity. Id. at
1223 (quoting Wit v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir. 1998)).
“Instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial
comments.” Id. at 1223 (quoting Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir.
15
1994)). A plaintiff must prove both a subjective determination of hostility and that
the environment was objectively hostile as viewed by “a reasonable employee under
the same or similar circumstances.” Id. at 1222.
The conduct Sidlo alleges fails to meet this standard. As we just discussed,
Sidlo points to only one incident directly connected to national-origin discrimination.
See Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir. 2005) (noting that stray,
isolated “comments fall far short of the ‘steady barrage’ required for a hostile
environment claim”); Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 856 (10th Cir.
2000) (advising that in considering whether a plaintiff has shown pervasive
discrimination, “stray racial comments should typically not be admitted”). He doesn’t
directly tie his other objections—being initially denied a second voucher for safety
glasses and having limited computer access—to national-origin discrimination. But
even if these incidents were somehow tied to national-origin discrimination, the sum
of the harassment didn’t create an abusive working environment and therefore failed
to satisfy the second prong of hostile-work-environment analysis. His allegations are
a far cry from the required showing.
Sidlo also argues that the severity-and-pervasiveness evaluation is “generally
not an appropriate matter to be considered on summary judgment[,]” presumably
because of its fact-intensive nature. Appellant’s Reply Br. at 5–6. But at least in
Sidlo’s case, summary judgment was appropriate because no reasonable jury could
16
conclude that the unwelcome harassment based on national origin alleged by Sidlo
was sufficiently pervasive to alter a term, condition, or privilege of his employment.11
D. Wrongful Discharge in Violation of Colorado Public Policy
Sidlo argues that MillerCoors wrongfully discharged him in violation of
Colorado’s public-policy exception to at-will employment. See Martin Marietta
Corporation v. Lorenz, 823 P.2d 100, 108 (Colo. 1992). A prima facie case requires
the plaintiff to show:
(1) that the employer directed the employee to perform an illegal act as
part of the employee’s work-related duties or prohibited the
employee from performing a public duty or exercising an important
job-related right or privilege;
(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 or the employee’s right
or privilege as a worker; and
(3) that the employee was terminated as the result of refusing to perform
the act directed by the employer.
Id. at 109.
Sidlo doesn’t allege that he refused to perform an illegal act. Nor does he point
to any specific statute MillerCoors asked him to violate. So, to state a claim, he needs
to show a “clearly expressed public policy” that he was asked to violate.
11
Sidlo also contests the credibility of the testimony of MillerCoors’s safety
manager on the grounds that it was “second-hand.” Appellant’s Opening Br. at 10,
21. But her testimony’s second-hand nature doesn’t impair her credibility. See
Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1146–47 (10th
Cir. 2007) (discussing the “common scenario” of corporations designating
individuals who lack personal knowledge of the litigation as Rule 30(b)(6)
deponents).
17
“[T]he public policy exception to the at-will employment doctrine is not
subject to precise definition, yet is grounded in the notion that an employer should be
prohibited from discharging an employee with impunity for reasons that contravene
widely accepted and substantial public policies.” Kearl v. Portage Envtl., Inc., 205
P.3d 496, 498 (Colo. App. 2008). The plaintiff must allege that the “public policy
invoked ‘truly impacts the public in order to justify interference into an employer’s
business decisions.’” Id. at 499 (quoting Crawford Rehab. Servs., Inc. v. Weissman,
938 P.2d 540, 552 (Colo. 1997)).
Sidlo therefore argues that he brought to the attention of his superiors various
safety violations in the workplace, including Lopez’s violation, and that Colorado
law “protects whistleblowers.” Appellant’s Opening Br. at 27–28. But Sidlo fails to
provide a “widely accepted and substantial public polic[y]” that he was fired for
upholding. Kearl, 205 P.3d at 498. And he fails to explain how his complaints
implicate an issue that “affects society at large rather than a purely personal or
proprietary interest of the plaintiff or employer, leads to an outrageous result clearly
inconsistent with a stated public policy, or strike[s] at the heart of a citizen’s social
rights, duties, and responsibilities.” Crawford Rehab. Servs., Inc., 938 P.2d at 552
(alteration in original) (internal quotation marks and citations omitted); see also id. at
553 (“Not all potential sources of public policy are of sufficient gravity to outweigh
the precepts of at-will employment. We must develop the common law in this area
with care.”).
18
Sidlo’s generic allegations fail to establish connection to a “clear mandate of
public policy,” Martin Marietta Corp, 823 P.2d at 107, and correspondingly don’t
establish a prima facie case that his termination falls under the public-policy
exception. So, summary judgment was appropriate.
E. Breach of Implied Contract
Sidlo also argues that MillerCoors should have provided a pre-appeal meeting.
And he argues that because he had a right to such a meeting under an implied-
contract theory, summary judgment was inappropriate.
Under Colorado law, all employees hired for indefinite time periods are “at
will.” Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987). An at-will
relationship allows either party to terminate the employment at any time. Id. But a
breach-of-an-implied-contract theory rebuts the presumption of at-will status. An
employee establishes breach of an implied contract if he can demonstrate that “the
employer manifested his willingness to enter into a bargain in such a way as to justify
the employee in understanding that his assent to the bargain was invited by the
employer and that the employee’s assent would conclude the bargain.” Id. The
employee must also show that his continued employment constituted acceptance of
and consideration for the contracted procedures. Id.
But an employer’s disclaimer of contractual obligations is effective “if the
employer has clearly and conspicuously disclaimed intent to enter into a contract
limiting the right to discharge employees.” George v. Ute Water Conservancy Dist.,
19
950 P.2d 1195, 1198 (Colo. App. 1997). Colorado courts weigh whether a disclaimer
is clear by considering:
(1) whether the policy is labeled;
(2) whether the disclaimer appears on the first page of the policy;
(3) if the policy is signed by the employee;
(4) where the disclaimer appears;
(5) whether the disclaimer references “at-will” employment; and
(6) the proximity of the disclaimer to the termination guidelines.
Winkler v. Bowlmor AMF, 207 F. Supp. 3d 1185, 1190 (D. Colo. 2016).
MillerCoors explicitly disclaimed any contractual obligations. The
Supplemental Policy that Sidlo relies on states, in bolded text:
Nothing in this policy may be construed as modifying the At-Will
Employment policy, which is incorporated in full by reference. As with
all MillerCoors policies and practices, this policy: a) is subject to
interpretation, change or elimination, in management’s discretion, at
any time, with or without prior notice; and b) does not create contractual
rights or alter an employee’s at-will status.
Appellant’s App. at 229.
Such a conspicuous and unambiguous disclaimer refutes any implied contract
obligations, suggesting that Sidlo was an at-will employee.
But even if Sidlo wasn’t at will, he would be hard pressed to show an implied
contract right to the pre-appeal meeting specifically. The Supplemental Policy
doesn’t mention a pre-appeal meeting. Yes, the appeal process typically includes
such a meeting, but nothing in MillerCoors’s policies suggests it’s integral or
mandatory. And Sidlo provided no evidence that the employment bargain included a
pre-appeal meeting. See Keenan, 731 P.2d at 711.
20
The district court also determined that Sidlo hadn’t produced any evidence
about how the lack of a pre-appeal meeting prejudiced his appeal. And that trend has
continued before this court.12 Given the overwhelming evidence supporting his
termination (primarily his involvement in two recent serious mistakes), a strategy
change is unlikely to have affected the outcome. Sidlo failed to show an implied-
contract claim, and so summary judgment was appropriate.
CONCLUSION
For the reasons stated above, we affirm the district court’s grant of summary
judgment in favor of MillerCoors.
Entered for the Court
Gregory A. Phillips
Circuit Judge
12
On appeal, Sidlo points to the fact that English is his second language and,
allegedly, “[a] pre-appeal hearing was essential for Mr. Sidlo to fully understand the
process and present his appeal.” Appellant’s Opening Br. at 29. However, Sidlo
didn’t make this argument at the district court. And so it’s waived. Sidlo argues that
“[i]t is quite evident from the pleadings that a key component to this case is Mr.
Sidlo’s national origin and that he speaks English with a noticeable Eastern European
accent.” Appellant’s Reply Br. at 10 (internal quotation marks omitted). This we-
implied-it argument fails to avoid waiver. And regardless, Sidlo fails to specify how
his appeal presentation would have differed with a pre-appeal meeting even
accounting for his language skills.
21