Free Brief in Support of Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-0687-PSF-BNB MARY JO LAIRD, Plaintiff, v. GUNNISON COUNTY, a County of the State of Colorado, acting through THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF GUNNISON, THE BOARD OF TRUSTEES FOR THE GUNNISON COUNTY PUBLIC LIBRARY, JOHN DeVORE, and PEGGY MARTIN, in their individual capacities, Defendants. ______________________________________________________________________________ DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendants, GUNNISON COUNTY, a County of the State of Colorado, acting through THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF GUNNISON, THE BOARD OF TRUSTEES FOR THE GUNNISON COUNTY PUBLIC LIBRARY, JOHN DeVORE, and PEGGY MARTIN, by their attorney, ERIC M. ZIPORIN, ESQ. and pursuant to Fed.R.Civ.P. 56, hereby submit their Reply Brief in Support of Motion for Summary Judgment as follows: I. INTRODUCTION

As an initial matter, since Plaintiff concedes that summary judgment should be entered as to her Second Claim for Relief (pursuant to 42 U.S.C. § 1985) and Third Claim for Relief (violation of Article II, Section 25 of the Colorado Constitution), those claims will not be

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addressed in this Reply brief. Defendants respectfully request that summary judgment be entered as to those claims. II. REPLY TO STATEMENT OF UNDISPUTED FACTS

In responding to Defendants' "Statement of Undisputed Facts," Plaintiff claims that over two-thirds of the undisputed facts either mischaracterize the record or "depart from the evidence of record in various degrees." [Plaintiff' Response to Defendants' Brief in Support of Motion s for Summary Judgment (hereinafter "Plaintiff' Response") at p. 5]. s Such a condemning

allegation is curious for several reasons. Initially, twenty-eight (28) of the thirty-seven (37) undisputed facts directly cite to Plaintiff' own sworn deposition testimony. Secondly, in her s response to thirteen (13) of these facts (nos. 6, 7, 8, 10, 11, 12, 13, 17, 18, 19, 24, 31, and 34), Plaintiff actually admits that the citation to the record is accurate, but then cites to other unrelated evidence which is alleged to have been overlooked by Defendants. And finally, without providing a citation to the record which corroborates the alleged mischaracterization, on many occasions Plaintiff simply responds by providing her own self-serving legal interpretation of the facts and then accuses Defendants of mischaracterizing the record. Defendants respond to Plaintiff' challenge of each undisputed fact as follows: s 2. Plaintiff denies that she was an at-will employee and claims that the Personnel

Policies created an implied contract of employment. It remains undisputed that the County considered Plaintiff to be an at-will employee. It is Plaintiff' burden to establish (and for the s Court to decide if she has done so) that the Personnel Polices created an implied contract as well as a property right in her employment.

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3.

Plaintiff claims that Defendants have mischaracterized the record by stating that it

is undisputed that she did not have a written contract of employment. Plaintiff claims that the Personnel Policies constituted an employment contract "in her mind." While Defendants

recognize that Plaintiff alleges that the Personnel Policies created an implied contract, the record remains undisputed that no express, written contract of employment existed between Plaintiff and the County. If it had, presumably Plaintiff would not be arguing the existence of an implied contract. 6. While Plaintiff admits that she cannot recall being told that she could only be

terminated for disciplinary reasons, she thought that she could keep her job so long as she performed her duties. While Defendants are aware that this is what Plaintiff thinks, it remains undisputed that no one from the County ever told her that. And while Plaintiff claims that she understood the Personnel Polices to indicate that she could only be terminated for cause, it remains undisputed that she is unable to identify any language within the Personnel Policies which states that employees could only be terminated for cause. Plaintiff was unable to do so in her deposition and has not done so in responding to Defendants'Motion for Summary Judgment. 7. This fact remains undisputed as Plaintiff admits that she was never told that a

particular procedure would have to be followed if she was terminated. 8. It remains undisputed that all County employees were required to follow the

Personnel Policies. 9. This fact remains undisputed as Plaintiff fails to cite to any evidence in the record

which disputes that no one from the County told Plaintiff that the Personnel Policies served as a form of employment contract.

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10.

While Plaintiff may have interpreted the Personnel Polices a certain way, it

remains undisputed that there is no language within the Personnel Policies stating that Plaintiff could keep her job if she continued to perform adequately. 11. While Plaintiff concedes that there is no language within the Personnel Policies

stating that she could only be terminated for cause and that no one from the County ever told her that, she responds with her own self-serving interpretation of the Personnel Policies as well as legal argument that the policies created an implied contract. Such is insufficient to create any dispute to these material facts. 12. While conceding that this fact "may be true as phrased," Plaintiff responds with

additional, unrelated facts from the record. It remains undisputed that Plaintiff never chose not to seek alternative employment based upon her reliance on any provision within the Personnel Policies. 13. This fact remains undisputed as Plaintiff fails to cite to any evidence in the record

which disputes that that no one from the County told Plaintiff that the amendments to the Personnel Policies served as a form of employment contract. 14. While unable to cite to any facts from the record disputing that the County never

intended for the Personnel Policies to operate as a contractual offer, Plaintiff attempts to challenge this fact on foundational grounds. As the Chief Executive Officer for the County since 1996, DeVore has personal knowledge of both the current Personnel Policies as well as those promulgated prior to his employment with the County.

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15.

While Plaintiff interprets the Personnel Policies to state that she could only be

terminated for cause, it remains undisputed that she is unable to identify any express language therein supporting this interpretation. The reason being is that there is none. 16. It remains undisputed that Plaintiff' only discipline was in 1993. Defendants s

recognize that despite there not being any evidence in the record to support her theory, Plaintiff alleges that she was dismissed from her employment as opposed to being laid off. 17. As admitted to be true by Plaintiff, it remains undisputed that Plaintiff received a

favorable performance review in June of 2002. 18. As admitted to be true by Plaintiff, it remains undisputed that no County

employee ever came to Plaintiff with concerns or criticisms about her work. 19. As admitted to be true by Plaintiff, it remains undisputed that Plaintiff received a

merit-based raise every year. 24. Plaintiff admits that she was told by Martin that her being laid off was no

reflection on her job performance and that her position was being eliminated due to budgetary constraints. Plaintiff was not told by Martin that the position required a higher level of

professionalism, but in fact testified that "[t]he way it was put to me was that the job required a professional degree." [Exhibit 4 appended to Plaintiff' Response at p. 135, line 18 ­ p. 136, s line 22]. 25. It remains undisputed that it is the County' position that Plaintiff was laid off. s

There is absolutely no evidence, other than Plaintiff' own self-serving assertion not based on s any identified fact in the record, that the County maneuvered to characterize her dismissal as a layoff because Plaintiff could not adequately perform her job.

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26.

The plain and unambiguous language of the Personnel Policies cannot be disputed

by the parties. It remains undisputed that the Personnel Policies define "dismissal" as "an involuntary separation for cause from County employment." 27. It remains undisputed that the Personnel Policies do not contain any language

requiring an appeal following a layoff. 28. Again, while Defendants recognize Plaintiff' theory that she was dismissed, she s

fails to provide any evidence from the record which disputes her own concession that the grievance and appeal procedures do not apply when a person is laid off. 29. While Defendants recognize that it is Plaintiff' position that Defendants s

maneuvered to dismiss her, it remains undisputed that Plaintiff conceded that the grievance and appeal procedures probably do not apply to any other situation other than disciplinary actions. The cited portion of Plaintiff conveniently omits the critical language, that being the definition of "dismissal" within the Personnel Policies. Plaintiff was not terminated for cause, but was laid off due to budgetary constraints. 30. Yet again, Plaintiff fails to provide any evidence from the record which disputes

the fact that no one ever told her that if she was laid off she could appeal the decision. 31. 34. Since this fact is admitted by to be true by Plaintiff, it remains undisputed. It remains undisputed that Plaintiff cannot identify any meeting in which Martin,

DeVore, and Moore conspired against her. 37. This fact remains undisputed as Plaintiff agrees that she testified that "maybe" the

elimination of her position was due to budgetary reasons. A review of the cited portion of Plaintiff' testimony does not reveal that she was merely recalling the deposition testimony of s

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Martin. The issue from Martin' deposition was the fact that the implementation of the new s position had been delayed once Martin realized that it would result in the elimination of Plaintiff' position due to budgetary constraints. s III. 1. STATEMENT OF ADDITIONAL UNDISPUTED FACTS

Plaintiff admits that she did not follow the "Grievance Procedure" within the

Personnel Policies and instead went straight to the "Appeal Procedures" because she believed she had received a written notice of dismissal. [Exhibit 4 appended to Plaintiff' Response at p. s 170, lines 2 ­ 8; p. 172, lines 12 ­ 16]. 2. In the summer of 2002, Plaintiff was asked by Martin if she was interested in

pursuing a Master' in Library Science ("MLS") degree. [Exhibit 4 appended to Plaintiff' s s Response at p. 124, lines 14 ­ 25]. 3. Plaintiff declined because her job description did not say that it was mandatory,

she did not feel that she had time to pursue it, and because of family issues at the time. [Exhibit 4 appended to Plaintiff' Response at p. 125, lines 6 ­ 21]. s 4. And despite Martin suggesting that it might be a good idea for her to pursue the

MLS degree, Plaintiff declined. [Exhibit 4 appended to Plaintiff' Response at p. 126, lines 3 ­ s 9]. 5. Although it was recommended by Defendants that Plaintiff seek out additional [Exhibit A

education and training on administration issues, Plaintiff chose not to do so.

appended to Defendants' Memorandum Brief in Support of Motion for Summary Judgment (hereinafter "Defendants'Brief") at p. 121, lines 12 ­ 20].

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6.

Plaintiff believes that in providing suggestions to her about continuing her

education, Martin was trying to assist her to broaden her horizons so that Plaintiff could do a better overall job. [Exhibit 4 appended to Plaintiff' Response at p. 123, lines 3 ­ 17]. s 7. Plaintiff is not aware of any requirement within the Personnel Policies that

required Martin to keep her apprised of the creation of the new position. [Exhibit 4 appended to Plaintiff' Response at p. 177, lines 10 -19]. s 8. During the time that she worked with Martin, Plaintiff did not find her to be

dishonest, found her to be a good boss, and had no reason to believe that Martin was not genuinely concerned about her as an employee. [Exhibit 4 appended to Plaintiff' Response at s p. 176, line 24 ­ p. 177, line 9]. 9. Plaintiff agrees that Martin delaying the implementation of the new position once

she knew that Plaintiff' position would be eliminated because Plaintiff had personal issues s going on in her life does not sound like a person who had a plan all along to get rid of Plaintiff. [Exhibit B appended to Defendants'Brief at p. 191, lines 10 ­ 20]. IV. A. ARGUMENT

PLAINTIFF' § 1983 DUE PROCESS CLAIM SHOULD BE S DISMISSED AS DEVORE AND MARTIN ARE ENTITLED TO QUALIFIED IMMUNITY.

In an attempt to establish her due process claim, Plaintiff first argues that the Personnel Policies, by allegedly promising her an appeal regardless of the reason for separation, created an implied contract which in turn created a property right in continued employment which could not be deprived without due process.

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Yet what Plaintiff fails to even respond to is the litany of case law within Defendants' Brief which makes it clear that the courts which have held that a property interest exists have relied upon express language within an employee handbook that states that an employee could only be terminated for cause which created a property right, and in turn, a requirement for some form of a post-termination hearing. [Defendants' Brief at p. 15]. While Plaintiff "understood" that she could only be terminated for cause, it remains undisputed that the Personnel Policies do not contain any language, unlike the case law cited within Defendants' Brief, that could even arguably be interpreted to read that Plaintiff could only be terminated if cause existed. Accordingly, for this reason alone, Plaintiff did not have a right to continued employment which was created by the Personnel Policies and thus no right to any form of due process upon being laid off. Plaintiff relies upon language within Continental Airlines, Inc. v. Keenan, 731 P.2d 708 (Colo. 1987), Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988), and Adams County Sch. Dist. No. 50 v. Dickey, 791 P.2d 688 (Colo. 1990) in support of her due process claim. However, both Keenan and Churchey dealt exclusively with the issue of an employee handbook creating an implied contract, and neither addressed the issue of an employee handbook creating a property right under the due process clause. In contrast, the Colorado Supreme Court in Dickey specifically addressed the issue of whether an employee handbook could create a property right in continued employment. While the issue was remanded to the trial court for determination by the trier of fact, the Court in Dickey made it clear that those courts which have found a property right to exist have relied upon specific language within a handbook indicating that an employee could only be terminated for cause, and thus the employee had a property right in continued

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employment. Again, Plaintiff was not "terminated for cause" but was instead laid off, and she has failed to come forward with any language within the Personnel Policies indicating that a layoff could only result from cause or that she was entitled to an appeal following her layoff. In an attempt to meet her burden, Plaintiff claims that the Personnel Policies created an implied contract because she was promised an appeal process in the event that she was dismissed or suffered adverse employment action. [Plaintiff' Response at p. 18]. s In making this

argument, Plaintiff cites to pages 38 and 44 of the Personnel Policies. However, neither of these pages contain language indicating that Plaintiff was promised an appeal if she suffered any adverse employment action. As is clear from the language on both page 38 and 44, Plaintiff could be disciplined if cause existed, and if such discipline resulted in a "dismissal," she could afford herself of the grievance or appeal process. Plaintiff clearly did not avail herself of the grievance process1, and thus her claim is that she is entitled to an appeal since she received written notice of "dismissal." While Plaintiff attempts to create ambiguity surrounding the scope of the term "dismissal," the Personnel Policies clearly define it as "an involuntary separation for cause from County employment." [Section III of Defendants' Brief at ¶ 22]. The record is simply devoid of any evidence supporting Plaintiff' claim that she was dismissed for cause. To s the contrary, the record before the Court is that Plaintiff received a merit-based raise every year, that she was never criticized for her job performance, and that she received a favorable performance review only months prior to being laid off.

1

The fact that Plaintiff at no time availed herself of the "Grievance Procedure" is telling of the fact that she never believed that she had been terminated for disciplinary reasons until very recently when it became clear to her that the Personnel Policies did not provide for an appeal following a layoff. Not surprisingly, Plaintiff does not argue that the County violated the "Grievance Procedure" since it is admitted that she did not file a written grievance with her supervisor. [Section III of this brief at ¶ 1]. Plaintiff merely argues that she received written notice of "dismissal" and was thus entitled to an appeal.

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Plaintiff claims that Defendants admit that Plaintiff was separated from her employment because she could not adequately and efficiently perform her job. [Plaintiff' Response at p. 20]. s The relied upon testimony of Martin and DeVore is not supported by the record. In fact, the cited testimony at no time even discusses Plaintiff or her level of performance. The cited testimony merely provides the bases for Martin' decision to create the new position of Branch s Manager at the library, one which was originally envisioned to be between Martin and Plaintiff in the library hierarchy.2 Despite the fact that the definition of "layoff" within the Personnel Policies includes as a basis a "non-availability of funds," Plaintiff claims that Defendants' explanation of a layoff is implausible as there existed a need for higher levels of service and, as such, a need for more employees at the library. [Plaintiff' Response at pp. 21 ­ 22]. And while at the same time s conceding that it may have been true that the County budget mandated the layoff, Plaintiff argues that the reduction was the result of the "reclassification" of her position since she could no longer keep up with the needs of the community. Again, the record is devoid of any evidence, other than Plaintiff' own self-serving testimony, that the County intended all along to "reclassify" her s position and conspired to get rid of her in order to avoid the cost and hassle of an appeal. To defeat summary judgment, a non-movant' testimony must be based on personal s knowledge and must set forth facts which would be admissible in evidence. Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). Statements that are conclusory and self-serving are insufficient in this regard. Hall, 935 F.2d at 1111; Murray v. City of Sapulpa, 45 F.3d 1417,
On page twenty-one of her Response, Plaintiff wastes the Court' time by arguing that Defendants did not follow s the "reclassification" procedure when they allegedly "reclassified" her job. This issue is simply irrelevant. The undisputed facts establish that Martin created and classified a new position of Branch Manager. Plaintiff at no time has alleged that the job description of Branch Librarian was inappropriate and that it did not adequately define the work she was performing which would have necessitated a "reclassification" of her position.
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1422 (10th Cir. 1995); Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)(to defeat summary judgment, "a party cannot rest ... on speculation, or on suspicion"). Plaintiff' own speculation s and suspicion about the alleged conspiracy to terminate her is insufficient to defeat summary judgment. Accordingly, Plaintiff' § 1983 due process claim should be dismissed as a matter of s law. B. PLAINTIFF' § 1983 CLAIM AGAINST THE COUNTY AND S BOARD SHOULD BE DISMISSED.

Plaintiff claims that the County and Board are liable under § 1983 based upon the alleged misconduct of DeVore, whose acts are purported to have represented the official policy of the County. [Plaintiff' Response at p. 29]. However, since Plaintiff cannot establish a property s right in her employment, let alone an underlying constitutional violation on the part of DeVore, she cannot establish any liability on the part of the County or Board. See, Williams v. City and County of Denver, 99 F.3d 1009, 1018 (10th Cir. 1996). Plaintiff' § 1983 claims against the s County and Board should therefore be dismissed. C. PLAINTIFF' WILLFUL BREACH OF CONTRACT/EXPRESS S COVENANT OF GOOD FAITH AND FAIR DEALING CLAIMS SHOULD BE DISMISSED. 1. Breach of Implied Contract Claim.

While Plaintiff goes to great lengths to argue that an implied contract existed, she fails to make any showing as to how that implied contract was breached, if in fact it existed in the first place. Plaintiff heavily relies upon Churchey, supra, to support her claim that an implied contract existed. However, language from Churchey significantly undermines this claim. To prove her claim, Plaintiff must show that the County' promulgation of the Personnel Policies s

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was an offer and that Plaintiff' initial or continued employment constituted acceptance of that s offer. Churchey, 759 P.2d at 1348. It is undisputed that since the Personnel Policies were promulgated after Plaintiff began her employment, there were no procedures within any personnel policy that Plaintiff relied upon as a condition of accepting her employment. [Section III of Defendants' Brief at ¶¶ 4 ­ 5]. In assessing the concept of continued employment in

reliance upon an employee handbook, the Churchey court noted that such is the case if an employee continues to work and foregoes her option of terminating employment and looking for employment elsewhere. Id. (citing Langdon v. Saga Corp. 569 P.2d 524, 527 (Okla. Ct. App. 1976)). Here, it is undisputed that at no time during her employment with the County did Plaintiff decide against seeking alternative employment because of her reliance upon specific provisions within the Personnel Policies, including the grievance and appeal procedures. [Section III of Defendants' Brief at ¶ 16]. Plaintiff is therefore unable to establish that an implied contract was created by the Personnel Policies. Even assuming an implied contract was created, the procedures relied upon by Plaintiff are inapplicable. The subject appeal procedure applies only to a termination for cause as a result of disciplinary action, not when an employee is laid off. As noted above, the record does not support even an inference that Plaintiff was actually terminated for cause which arguably would have created an implied contractual obligation on the part of the County to provide an appeal. Plaintiff' breach of an implied contract claim should therefore be dismissed as a matter of law. s 2. Breach of Covenant of Good Faith and Fair Dealing.

Plaintiff relies upon state law from Colorado and other jurisdictions to show that an express covenant of good faith and fair dealing becomes a term of an express employment

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agreement. [Plaintiff' Response at pp. 23 ­ 24]. However, none of these cases stand for the s proposition that an implied covenant of good faith and fair dealing exists in an implied contract purported to have been created by a personnel manual. Plaintiff concedes that she never had an express, written contract of employment with the County, but instead alleges that the Personnel Policies created an implied contract. The

Colorado appellate courts have consistently declined to recognize the existence of an implied covenant of good faith and fair dealing in the context of otherwise at-will employment contracts. Decker v. Browning-Ferris Indus., 931 P.2d 436, 442 (Colo. 1997); Farmer v. Central Bancorporation, Inc., 761 P.2d 220, 221-22 (Colo. App. 1988); Montoya v. Local Union III, Int'l Bhd. of Elec. Workers, 755 P.2d 1221, 1225 (Colo. App. 1988); Pittman v. Larson Distrib. Co., 724 P.2d 1379, 1385 (Colo. App. 1986). Plaintiff' reliance upon the language in Decker is s misplaced as that case dealt with a covenant under the premise of an express contract of employment. As evidence of the alleged breach, Plaintiff claims that the Defendants never told her about the "reclassification" scheme, though they knew it would damage her. Response at p. 24]. [Plaintiff' s

In addition to citing her own self-serving testimony to support this The cited

allegation, Plaintiff wholly mischaracterizes the testimony of Debbie Moore.

testimony refers to the point in time when the new position of Branch Manager was offered to Carol Primus. Ms. Moore made it clear that she did not know that this would result in Plaintiff's termination. More importantly, Ms. Moore consistently testified during her deposition that she had no idea that the creation and classification of the new position would result in Plaintiff being laid off. [Deposition of Deborah L. Moore appended to Defendants' Opposition to Plaintiff's

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Motion for Partial Summary Judgment (hereinafter "Defendants' Opposition") as Exhibit F at p. 26, line 1 ­ p. 27, line 6; p. 28, line 16 ­ p. 29, line 12]. Again, other than Plaintiff' own s speculative testimony, the record is devoid of any evidence of a "reclassification" scheme which was implemented to get rid of Plaintiff. In further support of this claim, Plaintiff alleges the following: (1) that Defendants never told her she needed an MLS in order to keep her job; (2) Defendants did not consider Plaintiff's level of seniority; (3) Defendants were advised by an employment lawyer, Cynthia Barnes, that it would be better to eliminate a less senior person; and (4) that Defendants did not tell Plaintiff that the community was demanding a higher level of professionalism so as to permit Plaintiff to meet those demands. [Plaintiff' Response at p. 25]. s Initially, the record shows that despite the fact that Defendants asked Plaintiff if she was interested in pursuing her MLS in the summer of 2002, and suggested to her that it would be a good idea, Plaintiff declined. [Section III of this brief at ¶¶ 2 ­ 4]. Plaintiff was provided other suggestions toward continuing her education on administrative issues, but Plaintiff also declined to follow those suggestions. [Section III of this brief at ¶ 5]. It is further undisputed that Plaintiff believes that in providing suggestions to her about continuing her education, Martin was trying to assist her to broaden her horizons so that Plaintiff could do a better overall job. [Section III of this brief at ¶ 6]. As for the fact that Defendants did not consider Plaintiff' level s of seniority, it is conceded that this was not mandatory according to the Personnel Policies.3

It is curious that Plaintiff would consider the issue of seniority at all. If she was in fact dismissed for her inability to perform her job, her level of seniority would be irrelevant. Plaintiff' reliance on this issue in order to show bad s faith is yet another example that she does not truly believe that she was dismissed for cause, but that she has been forced into this argument given the plain and unambiguous language of the Personnel Policies which did not require an appeal following a layoff. Plaintiff' reliance on her seniority is evidence that she recognizes that a layoff was s

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Plaintiff alleges that Cynthia Barnes was an employment attorney with "Gunnison' Risk s Management Department." Such is a mischaracterization of the record as Ms. Barnes was employed by County Technical Services, Inc., a third party administrator who handled insurance claims and did loss prevention for the insurance pool who provides coverage to the County. [Defendants' Answers to Plaintiff' First Set of Interrogatories, Requests for Admissions, and s Requests for Production of Documents appended to Defendants'Opposition as Exhibit E at p. 5, answer to Interrogatory No. 7]. Ms. Barnes merely served as a consultant to the County. [Exhibit E at p. 6, answer to Interrogatory No. 7]. As for Plaintiff' claim that she was not kept s apprised of the new position, Plaintiff concedes that she is not aware of any requirement within the Personnel Policies that required Martin to keep Plaintiff apprised of the creation of the new position. [Section III of this brief at ¶ 7]. Plaintiff admits that during the time that she worked with Martin, Plaintiff did not find her to be dishonest, found her to be a good boss, and had no reason to believe that Martin was not genuinely concerned about her as an employee. [Section III of this brief at ¶ 8]. And most telling of the good faith efforts of Martin is the fact that she delayed implementing the new position once she knew that Plaintiff' position would be s eliminated because Plaintiff had personal issues going on in her life, which Plaintiff admits does not sound like a person who had a plan all along to get rid of her. [Section III of this brief at ¶ 9]. As Plaintiff never had an express contract of employment with the County, Plaintiff' s breach of an express covenant of good faith and fair dealing claim should be dismissed as a matter of law. Even assuming that such a covenant can exist under an implied contract theory,
necessary, and simply believes that a layoff would have been acceptable so long as someone with less seniority than her was let go.

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the undisputed facts establish that Plaintiff cannot cite to any provision within the Personnel Policies violated by Defendants which support a claim that Defendants acted in bad faith. D. PLAINTIFF' PROMISORY ESTOPPEL CLAIM SHOULD BE S DISMISSED.

Plaintiff claims that there are disputed issues of material fact preventing summary judgment on her promissory estoppel claim. To the contrary, as argued in Defendants' Brief, there is no reason that the County should have reasonably expected Plaintiff to consider the Personnel Policies to be a commitment from them to follow certain termination procedures, especially in the instance of a layoff when the Personnel Policies do not require any type of procedure to be followed. As for her burden of establishing detrimental reliance, Plaintiff must show action or forbearance taken as a result of the County' alleged promises. Vasey v. Martin Marietta Corp., s 29 F.3d 1460, 1466 (10th Cir. 1994)(citing Kiely v. St. Germain, 670 P.2d 764, 767 (Colo. 1983)). In Vasey, the court dismissed the claim of promissory estoppel since the plaintiff had not shown that he acted or forbore from acting as a result of the defendant' employment policies. s Vasey, 29 F.3d at 1466. Specifically, the court relied upon the fact that there was no indication in the record that the existence of any policy factored into the plaintiff' decision to continue in s his employment. Id. The same holds true here. It is undisputed that since the Personnel Policies were

promulgated after Plaintiff began her employment, there were no procedures within any personnel policy that Plaintiff relied upon as a condition of accepting her employment. [Section III of Defendants' Brief at ¶¶ 4 ­ 5]. And more importantly, at no time during her employment with the County did Plaintiff decide against seeking alternative employment because of her

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reliance upon specific provisions within the Personnel Policies, including the grievance and appeal procedures. [Section III of Defendants' Brief at ¶ 16]. As these facts remain undisputed, Plaintiff' promissory estoppel claim should be dismissed. s V. CONCLUSION

Based upon the undisputed facts and argument set forth herein, as well as in Defendants' Brief, Defendants respectfully request that summary judgment be entered in their favor and that Plaintiff' claims for relief be dismissed as a matter of law. s

Respectfully submitted,

s/ Eric M. Ziporin Eric M. Ziporin, Esq. SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: 303-320-0509 Facsimile: 303-320-0210 [email protected] Attorney for Defendants

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 7th day of June, 2006, I electronically filed a true and correct copy of the above and foregoing DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Nathan Davidovich, Esq. [email protected] Ronald H. Nemirow, Esq. [email protected]

s/ Barbara A. Ortell

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