County District Court No. 18CV8 Honorable Denise K. Lynch,
Albrechta & Albrechta, LLC, Eleni K. Albrechta, David T.
Albrechta, Durango, Colorado, for Plaintiff-Appellant
Bechtel Santo & Severn, Michael C. Santo, Alicia W.
Severn, Grand Junction, Colorado, for Defendant-Appellee
1 Carmen Nieto appeals the district court's judgment
dismissing her claim for vacation pay against her former
employer, Clark's Market, Inc. (the Market). The issue
before us is whether the Market's policy saying that an
employee isn't entitled to payment for unused vacation
time if the Market discharges her or if she voluntarily quits
without giving two weeks' notice violates the Colorado
Wage Claim Act (CWCA). We hold that it does not, and so we
affirm the district court's judgment.
2 While working for the Market, Ms. Nieto accrued vacation
time pursuant to the vacation policy in the Market's
employee handbook. That policy explains how vacation time
accrues, how (and when) it can be used, and whether and under
what circumstances employees are entitled to payment for
accrued but unused vacation time when they leave employment.
As to the latter, the policy says that an employee is
entitled to payment for accrued but unused vacation time if
she voluntarily resigns and gives at least two weeks'
notice; but if the Market discharges an employee for any
reason or for no reason or if the employee fails to give two
weeks' notice before quitting, the employee
"forfeits all earned vacation pay benefits."
the Market discharged Ms. Nieto, it refused to pay her for
vacation time she had accrued but hadn't used, pointing
to the vacation policy.¶ 3 Ms. Nieto sued, seeking payment
for accrued vacation time and alleging that the Market's
vacation forfeiture policy violates sections
8-4-101(14)(a)(III) and 8-4-121, C.R.S. 2018, of the CWCA
because it denies her payment for earned wages. The Market
moved to dismiss her complaint under C.R.C.P. 12(b)(5) for
failure to state a claim. The district court granted that
motion, concluding that the CWCA "clearly and
unambiguously gives employers the right to enter into
agreements with its employees regarding vacation pay."
4 Ms. Nieto contends that the district court misconstrued the
CWCA in determining that she didn't state a plausible
claim for relief. Her argument, at its core, is that section
8-4-121 voids the Market's policy requiring employees to
voluntarily resign and give two weeks' notice to be
eligible to receive payment for accrued but unused vacation
time. This is so, she says, because she has a right to
payment for such vacation time under sections
8-4-101(14)(a)(III) and -109(1)(a), C.R.S. 2018. This case
therefore turns on our interpretation of these provisions of
Standard of Review and Interpretive Principles
5 We review de novo an order granting a motion to dismiss.
See Norton v. Rocky Mountain Planned Parenthood,
Inc., 2018 CO 3, ¶ 7. A court properly grants a
C.R.C.P. 12(b)(5) motion to dismiss for failure to state a
claim where the complaint's factual allegations, taken as
true and viewed in the light most favorable to the plaintiff,
don't present plausible grounds for relief. See
id.; Begley v. Ireson, 2017 COA 3, ¶ 8.
6 We also review issues of statutory interpretation de novo.
Colo. Oil & Gas Conservation Comm'n v.
Martinez, 2019 CO 3, ¶ 19.
7 In interpreting a statute, we look to the language of the
statute and apply the plain and ordinary meanings of the
words and phrases used therein. Id. "We do not
add or subtract words from the statute[.]" City
& Cty. of Denver v. Dennis, 2018 CO 37, ¶ 12.
And, we consider the entire statutory scheme to give
"consistent, harmonious, and sensible effect to all of
its parts." Id. If the statutory ...