United States District Court, D. Colorado
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Robert
E. Blackburn United States District Judge.
The
matter before me is Defendant's Motion for
Summary Judgment and Memorandum of Law [#38],
[1]
filed March 28, 2019. I grant the motion in part and deny it
as moot in part.[2]
I.
JURISDICTION
I have
jurisdiction over this matter under 28 U.S.C. § 1332
(diversity of citizenship).
II.
STANDARD OF REVIEW
Summary
judgment is proper when there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91
L.Ed.2d 265 (1986). A dispute is “genuine” if the
issue could be resolved in favor of either party.
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39
F.3d 1131, 1135 (10th Cir. 1994). A fact is
“material” if it might reasonably affect the
outcome of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
A
movant who bears the burden of proof at trial must submit
evidence to establish every essential element of its claim or
affirmative defense. See In re Ribozyme Pharmaceuticals,
Inc. Securities Litigation, 209 F.Supp.2d 1106, 1111 (D.
Colo. 2002). Once the motion has been properly supported, the
burden shifts to the nonmovant to show, by tendering
depositions, affidavits, and other competent evidence, that
summary judgment is not proper. Concrete Works,
Inc., 36 F.3d at 1518. All the evidence must be viewed
in the light most favorable to the party opposing the motion.
Simms v. Oklahoma ex rel Department of Mental Health and
Substance Abuse Services, 165 F.3d 1321, 1326
(10th Cir.), cert. denied, 120 S.Ct. 53
(1999).
III.
ANALYSIS
Plaintiff,
Cheryl Harris, was a long-time employee of King Soopers,
having worked at several different King Soopers stores in and
around the Boulder, Colorado, area, most recently at the
Gunbarrel, Colorado, store. In May 2017, Ms. Harris spoke
with Amanda Palko, an assistant human resources manager at
her store, about transferring to the City Market store in
Hotchkiss, Colorado. The previous September, Ms. Harris had
decided she eventually wanted to retire to Hotchkiss, some
250 miles west of Gunbarrel, and had entered into a contract
to buy a home there in February 2017. (Motion App., Exh. 2 at
77, 135-136.) Ms. Harris told Ms. Palko that she needed most
especially to maintain her seniority in the transfer. Ms.
Harris's seniority gave her greater flexibility over her
schedule, which would allow her to return periodically to the
Longmont area to care for her disabled adult son. Ms. Palko
told Ms. Harris “we'll make it work.”
(Id., Exh. 2 at 48-49; Exh. 4 ¶ 1 at 3.)
Based
on this statement, Ms. Harris concluded she had been approved
to transfer to the Hotchkiss City Market store at the same
rate of pay and seniority as she held at the Gunbarrel King
Soopers store. (Id., Exh. 2 at 162.) Ms. Harris
acknowledged she did not know at that time what position she
would assume at the new store, when she would start, or what
her hours might be. (Id., Exh. 2 at 51-52, 114.)
Nevertheless, Ms. Harris listed her home in Longmont,
Colorado, for sale on June 6, 2017; she closed on the new
home in Hotchkiss on June 23. The sale of the Longmont home
closed July 17, 2017, and Ms. Harris moved to Hotchkiss the
following day. (Id., Exh. 4 ¶ 4 at 5-6.)
While
Ms. Harris had a home in Hotchkiss, she did not, in fact,
have a job with City Market there. For one thing, it appears
Ms. Harris never completed a transfer request form - which
required a manager's signature - although she had done so
in connection with each of the previous five between-store
transfers she had requested during her tenure with King
Soopers. (See id., Exh. 3.) Indeed, the first
mention of this form appears to have been in an August 22,
2017, email exchange between Ms. Palko and Margie Morong, the
Human Resources Manager for District 3, in which the
Gunbarrel King Soopers store is located.[3] (Id.,
Exh. 5 at Dillon (Harris) 00279.) On August 31, 2017, Ms.
Morong sent an email to Tony Redden, the manager of the
Hotchkiss City Market Store, and Rich Idler, the Human
Resources Manager for District 11, in which that store was
located, informing them that Ms. Harris was seeking a
transfer. (Id., Exh. 5 at Dillon (Harris) 00278.)
Around
this same time, Ms. Harris personally contacted Mr. Redden to
inquire about positions at the Hotchkiss City Market store.
Mr. Redden offered Ms. Harris the only position then
available, as a courtesy clerk, which entailed a pay cut. He
also made her aware that her seniority would not transfer to
the Hotchkiss City Market store.[4](See id., Exh. 2 at
52-54, 107, 110.) King Soopers and City Market, although now
operated as one division of defendant Dillon Companies,
maintain their own policies on these matters. Most relevantly
for present purposes, if a King Soopers employee transfers to
another King Soopers store, her seniority is maintained,
whereas a transfer from a King Soopers store to a City Market
store - such as Ms. Harris sought here - results in loss of
seniority rights.[5] (Id., Exh. 1 at 17, 43; Exh. 5 at
3 (Dillon (Harris) 00262); Exh. 7.)[6] Ms. Harris declined that job
offer, as well as at least three others she was offered at
the Hotchkiss City Market store in the following year.
(Id., Exh. 1 at 75 76.) She testified that she would
not have accepted any position which would have required her
to forfeit her seniority.[7] (Id., Exh. 2 at 177-178.)
By this
suit, Ms. Harris brings a single claim of promissory estoppel
under Colorado law.[8] Because promissory estoppel is an
equitable claim, the court - not a jury - is the finder of
fact. (See Order [#46], filed May 15, 2019 (granting
parties' Joint Motion To Convert Trial From Jury Trial to
Bench Trial [#45], filed May 8, 2019, in recognition of
wholly equitable nature of sole remaining promissory estoppel
claim).)
In the
absence of an enforceable contract, a plaintiff may recover
on a theory of promissory estoppel by ...