United States District Court, D. Colorado
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE
matter is before the Court on the parties' cross
motions for summary judgment (ECF Nos. 23, 27) on
claims arising from Plaintiff Courtney Gruber's
(“Ms. Gruber”) former employment with Defendant
Regis Corporation (“Regis”). Ms. Gruber alleges
Regis violated the Colorado Wage Claim Act
(“CWCA”) and breached a letter agreement by
failing to make certain payments owed to her. The cross
motions are fully briefed and ripe for resolution. The Court
has subject matter jurisdiction pursuant to 28 U.S.C. §
FACTUAL AND PROCEDURAL BACKGROUND
was in the business of owning and operating hair salons.
Effective September 7, 2016, Regis hired Ms. Gruber as its
Vice-President of Premium Operations. Ms. Gruber received an
annual salary of $220, 000, was eligible for bonuses, and
received a $50, 000.00 grant of equity (Restricted Stock
Units or “RSUs”) in Regis which would vest in
equal annual amounts over a three-year period (August 19,
2016 to August 19, 2019) if she was continuously employed
during that three-year period. While Ms. Gruber was employed
by Regis, she signed the Code of Business Conduct and Ethics
which provided, among other things, that while employed it
was a conflict of interest for her to compete with Regis and
she was required to protect confidential information. (ECF
October 1, 2017, Regis sold its mall-based salon business to
The Beautiful Group (“TBG”). At that time, Ms.
Gruber reported to Russell Testa, Regis's Vice President
of Human Resources and Premium Operations. Prior to the
closing of the sale to TBG, Mr. Testa and Ms. Gruber
discussed entering into an agreement that would induce Ms.
Gruber to continue to work for Regis and/or TBG during the
transition of the mall-based salon business to TBG. A letter
agreement (the “Letter Agreement”) dated November
10, 2017 was prepared and thereafter signed by the parties.
That Letter Agreement defines the “Closing” as
October 1, 2017 and provides, in relevant part, as follows:
“This letter agreement is intended to memorialize the
agreement between you and Regis Corporation …
regarding your potential severance during the post-Closing
2. “If, at any time up to six months after Closing
[April 30, 2018], TBG makes you a job offer and you accept
the offer, Regis will accelerate the vesting of your
then-unvested Regis equity awards, in accordance with
Regis' policy for Transferred Employees, in exchange for
a standard and customary release (the
3. “If TBG does not make you a job offer by the
six-month anniversary of Closing, Regis will use its
reasonable best efforts to place you in another position with
Regis that is acceptable to both you and Regis. If Regis is
unable to do so, Regis will pay you severance equal to six
months of your salary and the Acceleration in exchange for a
standard and customary release.”
4. “Furthermore, if TBG makes you a job offer and you
decline, Regis will pay you severance equal to six months of
your salary and the Acceleration. If you are hired by TBG and
then terminated without cause at any time prior to October 1,
2018, Regis will pay you severance equal to six months of
your salary in exchange for a standard and customary
5. This Letter Agreement has no force and effect after
October 1, 2018. … It replaces all prior agreements
between you and Regis regarding post-Closing severance and
(ECF No. 1-1.) Prior to the parties' signing of the
Letter Agreement, there were no specific discussions between
the parties about what the term “job offer” or
“customary and standard release” meant.
the closing, Ms. Gruber worked under Michael Reinstein of TBG
but remained a Regis employee and continued to receive her
regular salary. In late December 2017, Mr. Reinstein asked
Ms. Gruber if she was interested in staying with TBG. Ms.
Gruber was not sure and told Mr. Testa about Mr.
Reinstein's inquiry. After consideration of the matter,
Ms. Gruber told TBG she was not interested in working for
them and, a few days later, Mr. Reinstein announced Ms.
Gruber's departure from TBG. Effective January 1, 2018,
Ms. Gruber was no longer actively working with TBG.
Gruber used her accrued vacation and took the month of
January 2018 off from Regis. Regis terminated Ms.
Gruber's employment effective January 31, 2018, with the
stated reason of “involuntary due to TBG
acquisition.” Ms. Gruber would not accept any job at
Regis that would not have involved running an entire
division, but Regis did not have any positions that met her
point in time, Regis presented Ms. Gruber with a
“Separation and Non-Disparagement Agreement and General
Release” (the “Separation Agreement”) which
contained, among other things, a “General Release,
” confidentiality provision, and non-compete and
non-solicitation provisions. (ECF No. 24-8.) Ms. Gruber did
not object to paragraph 3 in the Separation Agreement titled
“General Release” but would not sign the
Separation Agreement as presented. Without a signed
Separation Agreement, Regis would not make any payments to
Ms. Gruber or accelerate her equity in Regis. Ms.
Gruber's lawsuit followed.
Gruber's complaint raises two claims based on allegations
that she is entitled to (1) two months of salary under the
six-month term of the Letter Agreement; (2) acceleration of
4, 822 units of Regis equity; and (3) $110, 000 in
severance. As the complaint currently stands, however,
first claim is under the CWCA and seeks, as “wages or
compensation, ” the 4, 822 units of Regis equity. The
second claim is for breach of the Letter Agreement seeking
three months' salary, the 4, 822 units of Regis equity,
and $110, 000 in severance. On the second claim, the
parties' disputes are (1) whether the Letter Agreement is
enforceable; (2) whether Regis was required to employ Ms.
Gruber for six months; (3) whether Ms. Gruber received a
“job offer”; and (4) whether a “standard
and customary release” requires Ms. Gruber to sign a
document containing more than the “General
Release” set forth in the Separation Agreement. The
parties' cross motions for summary judgment assert the
Court can resolve the claims as a matter of law. The Court
examines the arguments in turn to determine if it is so.
judgment is appropriate only if there is no genuine dispute
of material fact and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Gutteridge v.
Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018). Whether
there is a genuine dispute as to a material fact depends upon
whether the evidence presents a sufficient disagreement to
require submission to a jury or is so one-sided that one
party must prevail as a matter of law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986);
Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136
(10th Cir. 2000). “The mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact.” Scott v. Harris, 550 U.S. 372, 380
(2007) (citation omitted). A fact is “material”
if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so
contradictory that if the matter went to trial, a reasonable
jury could return a verdict for either party.
Anderson, 477 U.S. at 248.
the court is presented with cross motions for summary
judgment, it “must view each motion separately, in the
light most favorable to the non-moving party, and draw all
reasonable inferences in that party's favor.”
United States v. Supreme Court of New Mexico, 839
F.3d 888, 906-07 (10th Cir. 2016) (citations and quotations
marks omitted). “‘Cross motions for summary
judgment are to be treated separately; the denial of one does
not require the grant of another.'” Christian
Heritage Academy v. Oklahoma Secondary School Activities
Ass'n, 483 F.3d 1025, 1030 (10th Cir. 2007) (quoting
Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433
(10th Cir. 1979)).
motion asserts there is no enforceable agreement because an
essential term was not agreed to, namely, the terms of the
“standard and customary release”; thus, Regis
contends, there is only an agreement to agree. Ms.
Gruber's motion assumes there is an agreement, but
Regis' response asserts there is only an agreement to
agree or, alternatively, there was no meeting of the minds
and Ms. Gruber was negligent in not inquiring as to the terms
of Regis' “standard and customary release.”
Ms. Gruber counters that by Regis' evidentiary and
judicial admissions, it has admitted that an enforceable
agreement exists and cannot now argue otherwise. These
arguments require an analysis of federal law concerning the
alleged admissions and Colorado contract law.
Evidentiary and Judicial Admissions
admissions are formal, deliberate declarations which a party
or his attorney makes in a judicial proceeding for the
purpose of dispensing with proof of formal matters or of
facts about which there is no real dispute.”
Asarco, LLC v. Noranda Mining, Inc., 844 F.3d 1201,
1212 n.3 (10th Cir. 2017) (quotation marks and citation
omitted). Stipulations consisting of affirmative, formal,
factual statements can be judicial admissions. Wheeler v.
John Deere Co., 935 F.2d 1090, 1097-1099 (10th Cir.
1991). “A judicial admission must be deliberate, clear,
and unequivocal.” Skyline Potato Co. v. Rogers
Bros. Farms, No. 10-CV-02353-WJM-KLM, 2011 WL 2791531,
at *5 (D. Colo. July 15, 2011) (citing Matter of Corland
Corp., 967 F.2d 1069, 1074 (5th Cir. 1992));
Armstrong v. JPMorgan Chase Bank Nat. Ass'n, 633
Fed.Appx. 909, 912 (10th Cir. 2015) (“If unequivocal,
judicial admissions are binding.” (quotation marks,
brackets, and citation omitted)).
on questions of law are ordinarily not binding. First
Amer. Title Ins. Co. v. Northwest Title Ins. Co., 906
F.3d 884, 893 (10th Cir. 2018). Further, judicial admissions
are not absolute as they “may be withdrawn whenever
necessary to prevent manifest injustice.”
Wheeler, 935 F.2d at 1098 (discussing
stipulations). Where “the party making an
ostensible judicial admission explains the error in a
subsequent pleading or by amendment, the trial court must
accord the explanation due weight.” Smith v. Argent
Mortg. Co., 331 Fed.Appx. 549, 556 (10th Cir. 2009)
(quotation marks and citation omitted). A district court has
“broad discretion in determining whether to hold a
party to a stipulation or whether the interests of justice
require that the stipulation be set aside.”
admissions, on the other hand, “can be controverted or
explained by a party, and such admissions include pleadings
in another case, superseded or withdrawn pleadings in the
same case, [and] judicial admissions in another case.”
Asarco, 844 F.3d at 1212 n.3 (quotation marks and
citation omitted). The testimony of Rule 30(b)(6)
representatives “is merely an evidentiary
admission” and, therefore, does not have preclusive
effect. Vehicle Market Research, Inc. v. Mitchell,
Int'l, 839 F.3d 1251, 1260-61 (10th Cir. 2016).
Gruber argues Regis' admissions that the Letter Agreement
is an enforceable contract is found in four instances. The
Court addresses them in turn.
Ms. Gruber argues that Regis' admission is found by its
failure to argue in its motion to dismiss that the Letter
Agreement is not a contract. Ms. Gruber fails to point the
Court to any assertion in Regis' Rule 12(b)(6) papers
which would constitute a deliberate, clear, and unequivocal
statement that the Letter Agreement is an enforceable
contract. Further, Ms. Gruber cites to no legal authority
that if a party does not raise an argument in a Rule 12(b)(6)
motion it constitutes a binding admission as to matters not
raised. Thus, the Court rejects this argument as without
legal or factual basis. See Fed. R. Civ. P. 12(b)(6)
(“[A] party may assert the following defenses
by motion…failure to state a claim upon which relief
can be granted.” (emphasis added)).
Ms. Gruber asserts Regis' stipulation in the Scheduling
Order that “Plaintiff and Defendant entered into a
contract in November 2017, a copy of which is attached to the
Complaint” constitutes an evidentiary admission that an
enforceable agreement exists. Regis argues it did not
stipulate the Letter Agreement was enforceable; its statement
is not inconsistent with its argument that the Letter
Agreement was an agreement to agree; and its motion to
dismiss was then pending and its list of anticipated defenses
was not exclusive (see ECF No. 17, p. 2
(“[a]mong the defenses Regis
anticipates…”)). Ms. Gruber relies on Lopez
v. Next Generation Constr. & Environmental, LLC, No.
16-CV-00076-CMA-KLM, 2018 WL 4111027 (D. Colo. Aug. 29,
2018), but this case supports Regis' position. There, the
Lopez court gave weight to the undisputed facts in
the scheduling order where defendant's answer was filed
before the scheduling orders were issued, and the
facts were not subsequently disputed in the parties'
final pretrial order. Here, Regis' answer was filed after
the scheduling order and disputed the enforceability of the
Letter Agreement. Further, the Court takes judicial notice