Cejka v. Vectrus Systems Corp.

          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.

         Plaintiffs 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.

         Here, 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.

         LEGAL STANDARD

         Federal 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)).

         ANALYSIS

         Defendant 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.

         Defendant 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.

         I. There Was Sufficient Evidence for a Jury to Find That Plaintiffs Had No. Choice but to Resign Due to Difficult or Intolerable Conditions.

         As a 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.

         Furthermore, 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 discharge claim:

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) (footnote omitted)).

         This 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.

         A few 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.

         In the 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.”).

         In 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 follows:

         Job Offer Declination

I decline the conditions of employment as stated above, with the understanding that it will result in separation and ...