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Harris v. The Kroger Co.

United States District Court, D. Colorado

May 23, 2019

THE KROGER COMPANY, d/b/a King Soopers, Defendant.


          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 have jurisdiction over this matter under 28 U.S.C. § 1332 (diversity of citizenship).


         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 ...

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