United States District Court, D. Colorado
R. BROOKE JACKSON, District Judge.
This case comes before the Court on Defendant's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) [ECF No. 16]. The Court has jurisdiction over this action under 28 U.S.C. § 1331 and 28 U.S.C. § 3732(a). The motion became ripe for review on April 10, 2014 upon the filing of Defendant's Reply [ECF No. 23]. For the following reasons, the motion is granted.
The plaintiff alleges, and for present purposes the Court will take as true, the following facts (unless otherwise noted). The plaintiff, Donna VanLandingham, began her employment with the Grand Junction Regional Airport Authority (the "Airport") on March 17, 2003 as its Public Safety Assistant. Over the years that followed Ms. VanLandingham was promoted several times, eventually rising to the position of Airport Security Coordinator. In this position Ms. VanLandingham reported directly to the Airport Director, then Rex Tippetts.
In her capacity as Airport Security Coordinator, Ms. VanLandingham had access to sensitive information involving security systems at the Airport, including construction projects involving security issues. In late 2009 Ms. VanLandingham became involved in a project to fence the Airport perimeter (the "Fence Project"). The Fence Project began as a fence to prevent wildlife incursions on the Airport's runway but was later converted by Mr. Tippetts into a security fence designed to restrict human access to the general aviation areas of the airport. Nevertheless, Mr. Tippetts continued to assert eligibility for funding by the Federal Aviation Administration ("FAA") and by the Transportation Security Administration ("TSA") based on the fence's prior status as a wildlife fence, knowing that the funding would not have been available had he accurately described the project as a security fence.
According to Ms. VanLandingham, Mr. Tippetts deceived the Airport Authority, the business and property owners at the Airport, and the FAA by falsely claiming that (1) a Wildlife Hazard Assessment conducted by the United States Department of Agriculture required the installation of a perimeter fence to prevent animal excursions; (2) the Fence Project was for the purpose of preventing the incursion of unwelcome animals onto the aircraft operating areas; (3) the TSA required a new or enhanced fence to secure the General Aviation areas of the Airport; and (4) the Fence Project would be funded by the FAA as a Wildlife Hazard Fence. Further, Mr. Tippetts allegedly concealed from the Airport Authority that constructing a wildlife hazard fence was a substantially less expensive project than constructing the security fence. Finally, Ms. VanLandingham asserts that there was no need or requirement to construct the security fence.
In November 2010 Mr. Tippetts instructed Ms. VanLandingham to attend a meeting of the various tenants of the Airport who were concerned about the planned location of the security fence and its access gates. Ms. VanLandingham was directed to tell the tenants that the security fence was being built to meet a specific requirement of the TSA. Ms. VanLandingham refused to make these statements to the tenants, believing them to be lies, and told Mr. Tippetts that she could not follow his instruction because she "could not lie and deceive the [tenants]." Complaint [ECF No. 1] at ¶ 19. Immediately following her refusal to speak at this meeting, Mr. Tippetts reassigned Ms. VanLandingham to the Subway fast food franchise in the Airport terminal. Her duties included opening at 4:30am, doing dishes, and cleaning. No reason for the change was provided to Ms. VanLandingham.
Approximately one month later, on January 5, 2011, Ms. VanLandingham was orally discharged by Mr. Tippetts. Mr. Tippetts also presented Ms. VanLandingham with a document entitled Confidential Separation Agreement and General Release (the "Separation Agreement"). The Separation Agreement provided for seven weeks of severance pay ($8, 153.60), three months of paid COBRA coverage, and one month of outplacement services. [ECF No. 16-2 at 1].
I will note here one significant error of fact contained in the Complaint. Ms. VanLandingham alleged that the $8, 153.60 paid as part of the consideration for her release was, in reality, a sum to which she was already entitled for accrued salary and vacation time, and that she was told that unless she signed the release, she would not receive compensation for that time. Complaint [ECF No. 1] ¶¶ 31-33. Those allegations were shown to be incorrect in records filed as Exhibit B to the Answer of the original co-defendant, Mr. Tippetts. [ECF No. 12-2]. In the response to the pending motion, plaintiff's counsel acknowledged that Ms. VanLandingham had been paid all sums due to her as a result of her employment (in addition to the $8, 153.60 paid as part of the consideration for a release), and that Ms. VanLandingham was withdrawing "Count III, " her breach of contract claim. [ECF No. 22 at 3]. The records establish that upon her termination Ms. VanLandingham was immediately paid her unpaid salary, accrued vacation days, and paid time off for a net sum of $9, 964.86. Accordingly, the Court includes this now undisputed fact in its recitation of the factual background. In exchange, Ms. VanLandingham agreed to release any and all causes of action pertaining to or arising from the employment relationship based in whole or in part upon any act or omission occurring on or before January 5, 2011. [ECF No. 16-2 at 2]. Just before the signature line, the Separation Agreement reads:
I HAVE CAREFULLY READ THE ABOVE AND I EXECUTE IT VOLUNTARILY, FULLY UNDERSTANDING AND ACCEPTING THE PROVISIONS OF THIS AGREEMENT IN ITS ENTIRETY AND WITHOUT RESERVATION AFTER HAVING HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH MY LEGAL ADVISORS PRIOR TO EXECUTING THIS AGREEMENT. I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT. IN AGREEING TO SIGN THIS AGREEMENT, I HAVE NOT RELIED ON ANY STATEMENTS OR EXPLANATION MADE BY THE AIRPORT, ITS OFFICERS, EMPLOYEES OR ATTORNEYS. I HAVE HAD AT LEAST TWENTY-ONE (21) DAYS TO CONSIDER THIS AGREEMENT. I UNDERSTAND THAT IF I DO NOT RETURN THIS AGREEMENT SIGNED BY ME TO THE THE [ sic ] AIRPORT UPON THE EXPIRATION OF THE TWENTY-ONE (21) DAY CONSIDERATION PERIOD, THIS OFFER WILL EXPIRE. I UNDERSTAND THAT I MAY REVOKE AND CANCEL THE AGREEMENT WITHIN SEVEN (7) DAYS AFTER SIGNING IT BY SERVING WRITTEN NOTICE UPON THE AIRPORT.
Id. at 3-4 (emphasis and capitalization in original). Ms. VanLandingham signed the Separation Agreement 20 days after the notice of termination, on January 25, 2011. Id. at 4.
In her Complaint, Ms. VanLandingham claims that she signed the Separation Agreement "in the good faith belief that she had no choice. She did not have the time or the money to retain a lawyer to advise her of her rights." Complaint [ECF No. 1] at ¶ 30. She added that she "was unaware that there were laws protecting her from retaliation should she reveal information involving false claims made to the Federal Government, " and that she "was unaware that there were laws prohibiting bribery and intimidation to obstruct justice." Id. Further, she did not realize "that the public policy of the state of Colorado prohibited retaliation against an individual for doing her civic duty in refusing to do an illegal act" and that she "was unaware that there were state laws protecting her right to receive back pay." Id.
REMAINING CAUSES OF ACTION
Ms. VanLandingham alleges that the Separation Agreement is unenforceable because, among other reasons, (a) it was not supported by adequate consideration; (b) it was signed under duress; and (c) it violates public policy. She originally asserted three causes of action: (I) violation of the False Claims Act Anti-Retaliation Provision against Mr. Tippets; (II) violation of the False Claims Act Anti-Retaliation Provision against the Airport; and (III) breach of employment contract. Ms. VanLandingham has stipulated to the dismissal of Count I, and she has withdrawn Count III. With respect to Count II, the question at issue in this motion is not whether the ...