United States District Court, D. Colorado
VICTOR CEJKA, JAMES WALKER, STEVEN WASCHER, and JAMIE LYTLE, Plaintiffs,
VECTRUS SYSTEMS CORPORATION, f/k/a Exelis Systems Corporation, Defendant.
ORDER ON DEFENDANT VECTRUS SYSTEMS CORPORATION'S
RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW AS TO
PLAINTIFFS STEVEN WASCHER'S AND JAMES WALKER'S CLAIMS
BASED ON CONSTRUCTIVE DISCHARGE [ECF NO. 318]
Michael E. Hegarty United States Magistrate Judge.
initiated this employment action on October 30, 2015, against
their former employer, Defendant Vectrus Systems Corp.
(“Vectrus”), alleging that they suffered adverse
employment actions in retaliation for reporting to the United
States military what they believed to be conduct by Defendant
that adversely affected security at Bagram Air Force Base in
Afghanistan. This case was tried to a jury for common law
retaliatory termination (Claim I) (all Plaintiffs) and
violation of 10 U.S.C. § 2409, the Department of Defense
whistleblower statute (Claim II) (Plaintiff Walker). The jury
found for Defendant on Plaintiff Cross's claim and for
the remaining Plaintiffs under both the common law claims
(all Plaintiffs) and the statutory claim (Plaintiff Walker).
In the interim, Plaintiff Cross has settled with Defendant.
Defendant seeks judgment as a matter of law on Plaintiffs
Wascher's and Walker's theory of constructive
discharge, which was used to support their respective claims
for retaliatory discharge in violation of public policy and
Walker's statutory whistleblower claim. ECF No. 318.
Defendant argues that a constructive discharge theory is
untenable here, because these Plaintiffs admitted at trial
they were laid off by Defendant. Even though Plaintiffs did
testify to that effect, I deny Defendant's motion,
because I find that Plaintiffs' claims for constructive
discharge in violation of public policy under Colorado law
and under 10 U.S.C. § 2409 are supported both by the law
and the evidence presented over fifteen trial days.
Rule of Civil Procedure 50(b) provides that “[n]o later
than 28 days after the entry of judgment . . . the movant may
file a renewed motion for judgment as a matter of law . . .
.” Fed.R.Civ.P. 50(b). In analyzing a Rule 50(b)
motion, courts should construe the evidence in the record in
a light most favorable to the nonmoving party. Tyler v.
RE/MAX Mountain States, Inc., 232 F.3d 808, 812 (10th
Cir. 2000). Courts must not “weigh evidence, judge
witness credibility, or challenge the factual conclusions of
the jury.” Deters v. Equifax Credit Info. Servs.,
Inc., 202 F.3d 1262, 1268 (10th Cir. 2000).
“Judgment as a matter of law is appropriate ‘only
if the evidence points but one way and is susceptible to no
reasonable inferences which may support the opposing
party's position.'” Tyler, 232 F.3d at
812 (quoting Finley v. United States, 82 F.3d 966,
968 (10th Cir. 1996)). Motions under Rule 50(b) “should
be cautiously and sparingly granted.” Lucas v.
Dover Corp., Norris Div., 857 F.2d 1397, 1400 (10th Cir.
1988) (quoting EEOC v. Prudential Fed. Sav. & Loan
Ass'n, 763 F.2d 1166, 1171 (10th Cir. 1985)).
properly characterizes Plaintiffs' claims as being
premised on a theory of constructive discharge. See
Mot. 2, ECF No. 318. To prove constructive discharge under
Colorado law, “a plaintiff must present sufficient
evidence establishing deliberate action on the part of an
employer which makes or allows an employee's working
conditions to become so difficult or intolerable that the
employee has no other choice but to resign.” Wilson
v. Bd. of Cty. Comm'rs of Adams Cty., 703
P.2d 1257, 1259 (Colo. 1985). “[W]hether the actions of
an employer amount to a constructive discharge depends upon
whether a reasonable person under the same or similar
circumstances would view the new working conditions as
intolerable, and not upon the subjective view of the
individual employee.” Id. at 1259-60.
insists that the first element (the Plaintiffs in question
resigned their employment) is not satisfied because
“both Plaintiffs Wascher and Walker testified
unequivocally that they did not resign or quit, and in fact
were laid off after their positions as Security Investigators
were eliminated and they refused other, different, lower
positions.” Mot. 2. In other words, Defendant pursues a
theory that these two Plaintiffs were terminated, they did
not resign, and that judgment must be entered against them
because they have painted themselves in a corner by pursuing
a constructive discharge theory. Defendant also contends that
the second element (intolerability) is not satisfied because
even assuming Plaintiffs did resign, the evidence at trial
was insufficient for a rational jury to find that their
transfer to other operating bases in October 2013 or
Defendant's offer of an alternative Biometric Clerk
position to them was so intolerable that they had no choice
but to resign. Finally, Defendant argues that the doctrine of
judicial estoppel precludes Plaintiff Wascher from even
bringing a constructive discharge claim. I disagree for a
host of reasons.
There Was Sufficient Evidence for a Jury to Find That
Plaintiffs Had No. Choice but to Resign Due to Difficult or
threshold matter, Defendant puts undue emphasis on
Plaintiffs' own characterization of their separation from
employment. The terminology used by a plaintiff is “not
dispositive” of whether separation amounts to a
constructive discharge. See Romero v. Helmerich &
Payne Int'l Drilling Co., No.
15-cv-00720-NYW, 2017 WL 3608194, at *3 (D. Colo. Aug. 22,
2017) (Romero I). In Romero I, the
Honorable Nina Y. Wang also evaluated constructive discharge
in the context of a claim for wrongful discharge in violation
of public policy. Id. at *1. In denying the
defendant's summary judgment motion, the court stated
that the employee's “testimony that he was fired,
viewed within the context of all of his testimony, is not
dispositive of whether he was constructively
discharged.” Id. at *3. The court
took “a step back from the semantics of
‘fired' versus ‘quit, '” and
“consider[ed] the general remedial nature of the
Colorado common law claim.” Id.
I believe it would be error to grant judgment as a matter of
law here because the evidence is susceptible to multiple
interpretations. The facts of this case, including the
evidence of Defendant's treatment of Plaintiffs after the
whistleblowing events, adequately support both a resignation
and a constructive discharge claim. The Tenth Circuit's
discussion in Strickland v. United Parcel Service,
Inc., 555 F.3d 1224 (10th Cir. 2009), is particularly
instructive and supports my conclusion. The issue there was
whether an employee who turned in her company laptop and
informed her supervisor she was leaving intended to end her
employment, when she later testified she did not believe she
had quit or resigned at that time. Id. at 1227-29.
In reversing the district court's grant of judgment as a
matter of law in the employer's favor, the Tenth Circuit
made clear that some ambiguity within an employee's
testimony does not automatically defeat a constructive
The district court granted judgment as a matter of law
because it concluded Strickland did not intend to terminate
her employment when she stopped working. Parts of her
testimony supported such a finding. Other parts of her
testimony, however, revealed ambiguity on the issue.
Strickland testified she would not return if she had to work
for Roten. She also testified she was “done” and
“at her wits end.”
The existence of constructive discharge is an issue of fact
to be resolved by the jury, and judgment as a matter of law
is only appropriate if the evidence is susceptible to but one
interpretation. The testimony here is susceptible to multiple
interpretations. A jury could find Strickland intended only
to take temporary leave. On the other hand, a jury could
alternatively find she left UPS with no intention of
returning to work under Roten. While she expressed a hope
that UPS would offer her a different position where she would
have no contact with Roten, such a hope did not necessarily
negate her intent to permanently stop working in her former
position. Since the evidence could have been interpreted by a
reasonable jury in Strickland's favor, the district court
erred in granting judgment as a matter of law to UPS on the
issue of constructive discharge.
Id. at 1228-29 (citing Riske v. King
Soopers, 366 F.3d 1085, 1088-89 (10th Cir. 2004)
court faced a similar scenario in Healion v. Great-West
Life Assurance Co., 830 F.Supp. 1372, 1375 (D. Colo.
1993), although the procedural posture of Healion
was different. The employee in Healion left a
meeting with her supervisors without explanation, packed up
her belongings, threw away papers, left the office, and
failed to report back to work. Id. at 1373-74. A
manager later contacted her and advised her of the
employer's determination that she had resigned.
Id. at 1374. The employee ultimately filed a lawsuit
alleging, among other claims, termination in retaliation for
filing a worker's compensation claim. Id. The
district court found a genuine issue of material fact as to
whether she “voluntarily resigned” or was
terminated, stating that was “an issue of fact for the
jury's consideration.” Id. at 1375.
Therefore, the court declined to grant summary judgment.
other cases inform my analysis as well. It seems clear from
James v. Sears, Roebuck & Co., 21 F.3d 989 (10th
Cir. 1994), that a perceived demotion or reassignment may be
an aggravating factor that makes staying on the job
intolerable so as to support a finding of constructive
discharge. Id. at 992-93 (citing Cockrell v.
Boise Cascade Corp., 781 F.2d 173, 177 (10th Cir.
1986)). And in Walker v. Mountain States Telephone &
Telegraph Co., 686 F.Supp. 269, 275 (D. Colo. 1988), the
court found that the facts supported an inference of
constructive discharge where the plaintiff was required to
elect between reassignment and retirement and was not given
the option of continuing his same work.
end, as many of the above cases emphasize, whether Plaintiffs
resigned is a quintessential jury question. In McInerney
v. United Air Lines, Inc., 463 Fed.Appx. 709 (10th Cir.
2011) (unpublished), the Tenth Circuit considered a variation
of our scenario. The employer there asserted that an
employee voluntarily resigned-and was not terminated-and thus
could not pursue a wrongful termination claim. Id.
at 715. The court found no evidence that the employee told
her employer that she was resigning; to the contrary,
“[t]he evidence showed that [the employee] did not
intend to resign, and that she desperately wanted to keep
working at United.” Id. at 716. In the course
of its ruling, the Tenth Circuit stated that whether an
employee resigned or was terminated is ultimately a fact
question for the jury. Id. at 716-17 (assessing
whether a jury “could reasonably find” that the
employer terminated the employee through its actions);
accord Pendleton v. Conoco, Inc., 23 F.3d 281, 287
(10th Cir. 1994) (characterizing whether a statement
reflected a present resignation as “a classic question
of fact for resolution by a jury”); Healion,
830 F.Supp. at 1375 (declining to award summary judgment to
the employer because “[w]hether [the employee]
voluntarily resigned or was instead terminated is an issue of
fact for the jury's consideration”); 1B Colo.
Prac., Methods Of Practice § 19:8 (7th ed. May 2018)
(“[W]hen there is a dispute as to whether an employee
resigned or was terminated, the jury is not bound by the
employer's interpretation of the facts.”).
other words, while it is true that Plaintiffs testified they
were laid off, it was still a jury question whether the
actual separation was in fact a termination or a resignation.
Regardless of the characterizations used during
Plaintiffs' own trial testimony and any resulting
ambiguities, I believe there was sufficient evidence for a
jury to find that the Plaintiffs did resign-and indeed the
jury so found. Of great importance at trial were Exhibits 211
and 234, Plaintiffs Walker's and Wascher's separation
documents. On May 27, 2014, Wascher was offered a demotion
and given the option to accept or to decline it. The
declination language in his separation document was as
I decline the conditions of employment as stated above, with
the understanding that it will result in separation and