May 23, 2019

Colorado Court of Appeals: Amendment to C.R.S. § 30-10- 506 Largely Preserves At-Will Employment Doctrine for Deputy Sheriffs

The Colorado Court of Appeals issued its opinion in Arapahoe County Sheriff’s Office v. Cummings on Thursday, September 6, 2018.

Employment Termination—Wrongful Discharge—Implied Contract of Employment—Summary JudgmentInterlocutory AppealSheriff’s Policies—CRS § 30-10-506.

Cummings was a deputy sheriff in Arapahoe County. The Sheriff terminated Cummings’ employment, asserting that he violated the Sheriff’s employee manual (the Manual) and was dishonest during the investigation of the original charges against him. Cummings exhausted his remedies within the Sheriff’s department and sued for (1) wrongful discharge in violation of public policy, and (2) breach of an implied contract of employment, based on the policies in the Manual. The Sheriff moved to dismiss the wrongful termination claim based on governmental immunity, and the district court dismissed the claim with prejudice. The district court denied the Sheriff’s motion to dismiss the implied contract claim, and the Sheriff moved for summary judgment. The district court denied the motion for summary judgment, holding that there was an implied contract of employment and disputed issues of material fact existed. The Sheriff brought an interlocutory appeal under C.A.R. 42 challenging the denial of summary judgment.

On appeal, the Sheriff contended that the trial court erred in denying his motion for summary judgment. He argued that the at-will employment concept in C.R.S. § 30-10-506 requires the court to hold that all policies promulgated by a sheriff relating to termination of deputy sheriffs’ employment are only precatory, and to conclude otherwise would mean that the sheriff lacks the power to terminate at-will employees. C.R.S. § 30-10-506 requires a sheriff to promulgate written employment policies, and the sheriff must give deputies the rights of notice and opportunity to be heard. A sheriff’s other employment policies may be, but are not required to be, binding. If the sheriff elects to confer binding employment rights on his deputies, those rights are enforceable according to their terms.

The Sheriff next argued that even if C.R.S. § 30-10-506 allows sheriffs to promulgate binding personnel policies, the disclaimers in the Manual and the yearly disclaimers that Cummings signed preclude, as a matter of law, the formation of an implied contract of employment. Except with respect to the rights expressly granted to deputy sheriffs by statute, these clear and conspicuous disclaimers preclude, as a matter of law, Cummings’ implied contract claims. But here, material facts are disputed on whether Cummings received the required notice of the charges that led to his dismissal.

The part of the summary judgment order permitting Cummings to pursue an implied contract claim based on rights conferred in the Manual that effectuate the due process rights granted by C.R.S. § 30-10-506 was affirmed. In all other respects, the summary judgment order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Termination of Employee Did Not Violate Title VII

The Tenth Circuit Court of Appeals published its opinion in Lobato v. State of New Mexico Environment Department on Tuesday, November 5, 2013.

Michael Lobato was a probationary employee at the New Mexico Environmental Department (NMED). His status as a probationary employee meant he could be fired at will and without a right to appeal the decision, so long as the department’s reasons were provided in writing. Before completing his probationary period, Lobato was fired. In a letter explaining its decision, NMED cited Lobato’s dishonesty, failure to cooperate with management, and unprofessional attitude toward coworkers and the public. Lobato, who is Hispanic and of Mexican ancestry, alleged that these proffered rationales were pretextual and that NMED was in fact motivated by racial and national origin prejudice. He also alleged NMED wanted to punish him for whistleblowing. Thus, Lobato claimed, the dismissal violated his rights under Title VII, New Mexico’s civil rights and whistleblower laws, and the First Amendment. The district court granted summary judgment to NMED on all claims, and Lobato appealed.

Title VII prohibits employers from discharging employees on account of race or national origin. It also forbids retaliating against an employee who reports or opposes violations of Title VII. See 42 U.S.C. § 2000e-2(a)(1); id. § 2000e-3(a). The court analyzed this claim using the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, Lobato had the initial burden of establishing a prima facie case of discrimination, then the burden shifted to NMED to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. If NMED could make such a showing, the burden would shift back to Lobato to show there was a genuine dispute about whether the proffered explanation was pretext for discrimination.

The parties did not dispute the first two steps in the McDonnell Douglas framework. The court’s analysis thus turned on the third step—pretext. Where, as here, an employer advances a number of reasons for an adverse employment action, the Tenth Circuit has adopted a general rule that an employee must proffer evidence that shows each of the employer’s justifications is pretextual. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1126 (10th Cir. 2005).

After a thorough review of the facts, the Tenth Circuit held that Lobato failed to raise a genuine dispute that NMED’s decision to terminate him was motivated by anything other than the legitimate, nondiscriminatory reasons NMED offered in its termination letter.

AFFIRMED.

Tenth Circuit: Employees Were At-Will and Had No Legitimate Expectation in Continued Employment

The Tenth Circuit issued its opinion in Gonzales v. City of Albuquerque on Monday, December 17, 2012.

The City of Albuquerque (the City) has a 311 Citizen Contact Center (CCC) to handle calls placed to the City’s non-emergency telephone number. The City’s Merit System divided employees into classified and unclassified service. Unclassified employees were defined as employees at will who could be dismissed for any reason. All CCC positions were designated unclassified. Plaintiffs acknowledge they were unclassified.

Plaintiffs were terminated from CCC between 2005 and 2009. Plaintiffs filed suit in New Mexico state court on five claims. The City removed to federal court and moved for summary judgment. The district court granted the City’s motion on all claims. Plaintiffs appealed.

On appeal, Plaintiffs argue the City never told them that they were employed at will, and to the contrary, that management imparted the message that they could only be fired for just cause. Plaintiffs contend that they had (1) a reasonable expectation of continued employment and thus a protected property interest, and (2) an implied contract of employment that protected against arbitrary discharge.

First, under New Mexico law, a property interest in the employment context consists of a legitimate expectation in continued employment. There was ample evidence in the record that Plaintiffs knew they were unclassified, at-will employees, including signed forms to this effect from each of them. Therefore, there was no issue as to any material fact on this point.

Second, Plaintiffs argue that they had an implied employment contract, which the City breached in terminating them without cause. Since Plaintiffs failed to allege specific facts that create an implied employment contract, they failed to raise an issue of fact that the City’s policies, representations, or conduct created an implied employment contract.

AFFIRMED.