City and County of Denver District Court No. 14CV32669 Honorable Catherine A. Lemon, Judge
Berg Hill Greenleaf & Ruscitti LLP, Mary Sue Greenleaf, Josh A. Marks, Boulder, Colorado, for Plaintiff-Appellant
Husch Blackwell LLP, Christopher L. Ottele, Carrie Claiborne, Denver, Colorado, for Defendant-Appellee
DAVIDSON JUDGE [*]
¶ 1 In this action for relief brought under section 24-34-402.5, C.R.S. 2015, Colorado's Lawful Off-Duty Activities Statute (LODAS), plaintiff, Douglas Williams, appeals from the dismissal of his complaint for failure to state a claim pursuant to C.R.C.P. 12(b)(5). We affirm.
¶ 2 LODAS is an exception to an employer's general right to terminate an at-will employee without legal consequence. Watson v. Pub. Serv. Co. of Colo., 207 P.3d 860, 867 (Colo.App. 2008). It prohibits an employer from terminating an employee "due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours." § 24-34-402.5(1). "[T]he general purpose of section 24-34-402.5 is to keep an employer's proverbial nose out of an employee's off-site off-hours business[.]" Coats v. Dish Network, L.L.C., 2013 COA 62, ¶ 15, 303 P.3d 147, 151, aff'd, 2015 CO 44, 350 P.3d 849. However, an employer may terminate an employee if the activity at issue:
(a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or
(b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.
§ 24-34-402.5(1) (emphasis added).
¶ 3 Williams had been employed for thirty-six years by defendant, Rock-Tenn Services, Inc., a corporation based in Georgia, and its predecessor, Smurfit Stone Container Corporation. In the last four years of his employment, he served as the Denver plant manager. According to his complaint, Williams's LODAS claim arose from "[Rock-Tenn's] termination of [him] from his job as a Plant Manager at their Denver cardboard manufacturing facility." The complaint alleged that "[Rock-Tenn] abused its role as an employer in terminating Mr. Williams for taking an approved vacation after telling Mr. Williams that he was cleared to go on vacation and miss a meeting."
¶ 4 The complaint further alleged that, by discharging him for "engaging in any lawful activity off the premises of the employer during nonworking hours, " § 24-34-402.5(1), Rock-Tenn had violated LODAS. Rock-Tenn filed a motion to dismiss for failure to state a claim pursuant to C.R.C.P. 12(b)(5), which the district court granted.
¶ 5 In its written order, the court described the complaint as alleging that Rock-Tenn terminated Williams "for going forward with a vacation that conflicted with a meeting abruptly scheduled to address a failed internal audit." The district court reasoned that, under the facts set forth in the complaint, "[Williams] managed one of [Rock-Tenn's] plants. The plant failed an internal audit. [Williams] was terminated for going on a vacation in lieu of attending that meeting. Such termination is reasonably and rationally related to [Williams's] employment activities and responsibilities . . . ."
¶ 6 The court concluded that LODAS does not offer protection to an employee under such circumstances.
¶ 7 On appeal, Williams contends that the dismissal was error. He insists that, contrary to the district court's characterization, his complaint alleged only that Rock-Tenn "pursue[d] termination . . . because he was on an approved vacation, " which he further alleged was a personal, private activity protected by LODAS. He argues that the court wrongly interpreted his allegations to include his failure to attend the July 3 post-audit meeting. By doing so, he argues, the court did not construe the facts in the light most favorable to him, considered facts outside of the complaint, and did not accept his allegations as true. He also suggests that the court's dismissal under C.R.C.P. 12(b)(5) was procedurally improper because it was based on an affirmative defense.
¶ 8 Based on slightly different reasoning, we agree with the result reached by the district court. See Hiner v. Johnson, 2012 COA 164, ¶ 2, 310 P.3d 226 (if a district court reaches the correct ...