Free Notice (Other) - District Court of Colorado - Colorado

Case 1:04-cv-01101-RPM-MJW

Document 79-2

Filed 12/29/2005

Page 1 of 6

DISTRICT COURT, PUEBLO COUNTY, COLORADO Pueblo County District Court 320 West 10th Street Pueblo, Colorado 81003 (719) 581-7000 Plaintiff: HEINZ L. BERGANN Defendants: PUEBLO CITY-COUNTY LIBRARY DISTRICT COURT USE ONLY Case No. 03CV1360 Div.: C

ORDER GRANTING SUMMARY JUDGMENT THE COURT, being fully advised in the premises, having considered the Defendant's Motion for Summary Judgment, the Plaintiff's Response to that Motion as well as the Defendant's Reply, hereby enters the following Order pursuant to Rule 56 of the Colorado Rules of Civil Procedure granting summary judgment in favor of the Defendant: I. FACTUAL BACKGROUND The Plaintiff, Heinz Bergann, began his employment with the Defendant, Pueblo CityCounty Library District ("Library") in 1996 as a Circulation Supervisor. At the time he commenced his employment, Plaintiff signed an employment application, received a written job offer along with a Memorandum of Understanding and subsequently was issued an Employee Handbook, all of which stated explicitly and clearly that Plaintiff's employment relationship with the Library would be on an at-will basis. When Plaintiff received the Employee Handbook, he acknowledged in writing that no aspect of the Handbook created any type of express or implied contract of employment between himself and the Library. time he commenced his employment. Plaintiff has testified that he understood the nature of his at-will employment relationship and had that understanding at the

Case 1:04-cv-01101-RPM-MJW

Document 79-2

Filed 12/29/2005

Page 2 of 6

In April 2003, Plaintiff became acting Adult Services Supervisor for the Library, a position equivalent, in terms of salary and benefits, to his position as Circulations Supervisor. The position of Adult Services Supervisor, however, required a masters degree in library science. Plaintiff has never held such a degree. On July 16, 2003, the Library returned the Plaintiff to the position of Circulation Supervisor and also requested that he remain on a part-time basis in a non-supervisory role in the Adult Services Department. This reassignment was a lateral one, resulting in no change or decrease to the Plaintiff's salary or benefits. On August 15, 2003, the Plaintiff was transferred from his part-time position in Adult Services to a job assignment relating to the Library's move to a new facility. Again, Plaintiff received the same salary and benefits in connection with this lateral transfer. On September 8, 2003, the Plaintiff resigned his employment with the Library District and took another job. The Plaintiff filed a lawsuit against the Library District asserting claims for breach of express employment agreement, breach of express and/or implied covenants, promissory estoppel, wrongful discharge contrary to public policy and unjust enrichment. The Court dismissed the Plaintiff's Fourth and Fifth Claims for Relief by Order dated December 30, 2003. The Defendant now seeks summary judgment on the Plaintiff's remaining claims for relief asserting that these claims must all fail because the Plaintiff voluntarily resigned his employment. The Defendant additionally asserts that any breach of express or implied contract claim is barred because no written employment contract existed between the Plaintiff and the Library District and because of the disclaimer language in the Library's Employee Handbook. Finally, the Library requests summary judgment on the Plaintiff's promissory estoppel claim, asserting that the Plaintiff failed to identify any promises upon which he claims to have relied or any detrimental reliance to support such a cause of action. II. CONCLUSIONS OF LAW Summary Judgment is a drastic remedy and is never warranted except upon a clear showing that there is not genuine issue as to any material fact. Hartfield v. Barnes, 115 Colo. 30, 168 P.2d 552 (1946). Summary Judgment should be denied if there is the slightest doubt that the moving party might prevail. Smith v. Mills, 23 Colo. 11, 225 P.2d 483 (1950). The trial Court must resolve all doubts as to whether an issue of fact exists against the moving party. Jones v. Dressel, 623 P.2d 370 (Colo. 1981). C.R.C.P. Rule 56(c) provides that the Court may use the 2

Case 1:04-cv-01101-RPM-MJW

Document 79-2

Filed 12/29/2005

Page 3 of 6

pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, which show the moving party is entitled to judgment as a matter of law and there is no genuine issue as to any material fact. A summary judgment may be rendered on liability alone, although there is an issue of damages. C.R.C.P. Rule 56(c). It is only in the clearest of cases, where the facts are undisputed and reasonable minds could draw but one inference, that the question of what constitutes reasonable care is one of law to be decided by the court and taken from the jury. Ferguson v. Gardner, 191 Colo. 527 554 P.2d 293(Colo. 1976), Hilyer v. MacDonald, 169 Colo. 230, 454 P.2d 928 (1969); Bates v. Stagg, 157 Colo. 456, 404 P.2d 530 (1965); Elliott v. Hill, 148 Colo. 553 The standard for granting or denying summary judgment is a two-prong test: a. Does the record show the absence of any genuine material factual dispute, and, b.On the basis of the uncontested facts, does the law entitle the moving party to relief? C.R.C.P. Rule 56(c). The Court may grant a partial summary judgment. [C.R.C.P. Rule 56(d)] City of Westminster v. Church, 167 Colo. 1, 445 P.2d 52 (1968). If it is a Motion for Judgment on the Pleadings and matters are considered outside the pleadings, the motion should be treated as one for summary judgment. Van Schaak v. Phipps, 38 Colo.App. 140, 558 P.2d 581 (1976). The purpose of a motion for summary judgment is to save litigants time and expense of a trial when, as a matter of law on the admitted facts, one of the parties could not prevail. Kinney v. Hardeman, 151 Colo. 571, 379 P.2d 628 (1963); Norton v. Dartmouth, 147 Colo. 436, 364 P.2d 866 (1961). The material allegations of the non-moving party's pleadings must be accepted as true unless depositions and admissions on file disclose no genuine issue of material fact. If there are properly served requests for admissions which are not answered, they may be deemed admitted and used in C.R.C.P. Rule 56 proceedings. Moses v. Moses, 494 P.2d 133 (Colo.App. 1972); McGee v. Heim, 146 Colo. 533, 362 P.2d 193 (1961). In its Motion for Summary Judgment and supporting Brief, the Defendant set forth a Statement of Undisputed Material Facts with 74 separate paragraphs. These undisputed facts were supported by attached documentation as well as the Plaintiff's deposition transcript. In his Response to Defendant's Motion for Summary Judgment, the Plaintiff fails to dispute any of the Defendant's statement of undisputed facts, and the Court thus accepts them as uncontroverted.

3

Case 1:04-cv-01101-RPM-MJW

Document 79-2

Filed 12/29/2005

Page 4 of 6

As an initial matter, the Defendant asserts that all of the Plaintiff's claims are barred because he voluntarily resigned his employment. Plaintiff contends that his resignation was not voluntary and that instead he was constructively discharged. He contends that he was demoted when required to work part-time in Adult Services and that while there, was assigned what he considered "busy work." Plaintiff additionally claims that some employees at the Library no longer engaged him in routine chitchat and that it was "no longer enjoyable to work there." In order to establish constructive discharge, a plaintiff "must allege facts sufficient to demonstrate under an objective test that a reasonable person would have viewed his working conditions as intolerable." Jeffries v. State of Kansas, Dept. of Social and Rehabilitation Services, 147 F.3d 1220, 1233 (10th Cir. 1998). "The conditions of employment must be objectively intolerable; the plaintiff's subjective views of the situation are irrelevant." Sanchez v. Denver Public Schools, 164 F.3d 527, 534 (10th Cir. 1988). "Essentially, a plaintiff must show that [he] had `no other choice but to quit.'" Id. at 533. The Court concludes that Plaintiff has failed to make such a showing. Although the Plaintiff claims that he had no choice but to resign, under no objective standard could the circumstances that he has identified meet such a test. For that reason, the Court concludes that the Library is entitled to summary judgment on all of the Plaintiff's claims. Even if the Court was not convinced that the Plaintiff's claims were barred by virtue of his voluntary resignation, summary judgment would still be appropriate. The Plaintiff's First and Second Claims for Relief assert breach of express and/or implied employment agreements arising out of the Library's Employee Handbook. This is so notwithstanding the at-will language contained in every document covering the Plaintiff's employment relationship with the Library. Indeed, the Court finds that it is difficult to conceive what additional notice an employer could provide to its employees advising that their employment relationship with the Library would be on at at-will basis. In the face of such clear and conspicuous disclaimers in the Library's employment documentation, the Court concludes that the Plaintiff's First and Second Claims for Relief must fail, and that summary judgment in favor of the Library District is appropriate. See, Evanson v. Colorado Farm Bureau Mutual Ins. Co.,879 P.2d 402, 409 (Colo. App. 1993); Ferrera v. Nielsen, 799 P.2d 458, 461 (Colo. App. 1990).

4

Case 1:04-cv-01101-RPM-MJW

Document 79-2

Filed 12/29/2005

Page 5 of 6

Finally, the Court concludes that the Defendant Library District is entitled to summary judgment on the Plaintiff's Third Claim for Relief for promissory estoppel. In order to establish such a claim, Plaintiff must demonstrate that 1) the promissor made a promise to the promissee; 2) the promissor should have reasonably expected that the promise would induce action or forebearance on the part of the promissee; 3) the promissee in fact reasonably relied on the promise to his detriment; and 4) the promise must be enforced to prevent injustice. Berg v. State Board of Agriculture, 919 P.2d 254, 259 (Colo. 1996). The only promises alleged by Plaintiff to support such a cause of action are those contained in the Library District's employee handbook as well as statements allegedly made by management employees that the Library would strive to maintain a positive working environment and that Library personnel should be courteous to each other. The Court concludes that Plaintiff's promissory estoppel claim must fail for two distinct reasons. In the first instance, the law in this jurisdiction is clear that a promissory estoppel claim is barred in the face of an at-will disclaimer in an employee handbook as well as clear language conspicuously stating that no claim for implied contract can be brought (such as exists within the Library's Employee Handbook). George v. Ute Water Conservancy District, 950 P.2d 1195, 1198 (Colo. App. 1997); Snoey v. Advance Forming Technology, Inc., 844 F. Supp. 1394, 1399-1400 (D. Colo. 1994); Silchia v. MCI Telecommunications Corp., 942 F. Supp. 1369, 1376 (D. Colo. 1996). Secondly, the Plaintiff testified that from January 2002 until less than two weeks prior to his September 8, 2003 resignation, he was neither offered nor did he seek employment elsewhere. He was not in the job market nor did he turn down any opportunities that might have been presented. In short, Plaintiff has failed to produce any evidence to demonstrate reliance, detrimental or otherwise, of any kind. III. CONCLUSIONS For the foregoing reasons, the Court grants the Defendant Pueblo City-County Library District's Motion for Summary Judgment on the Plaintiff's three remaining claims for relief. In responding to the Library District's summary judgment motion, Plaintiff failed to adduce any competent evidence to establish a question of material fact, failed to cite the court to any controlling or relevant case law and in general failed to demonstrate that his claims have any merit whatsoever.

5

Case 1:04-cv-01101-RPM-MJW

Document 79-2

Filed 12/29/2005

Page 6 of 6

Dated this 6th day of December, 2005

/s/original signature on file VICTOR I. REYES DISTRICT JUDGE

6