United States District Court, D. Colorado
ORDER GRANTING DEFENDANTS' PARTIAL MOTION TO
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Hotel Equities
Group, LLC (“Hotel Equities”) and Jackson Creek
Hotel Holdings, LLLP (“Jackson Creek”) Amended
Partial Motion to Dismiss Plaintiff Catherine Ramirez's
Sixth, Seventh, and Eighth Claims for Relief (ECF No. 28).
For the reasons that follow, the Motion is GRANTED.
a former employee of Defendants at Fairfield Inn &
Suites, Colorado Springs North (ECF No. 1 at 3), filed a
Complaint in this Court on February 1, 2019. (ECF No. 1.)
Plaintiff alleges that she was unlawfully terminated by
Defendants, and brings numerous state and federal claims
against them. (ECF No. 1 at 13-29.) Defendants on April 22,
2019 filed an Amended Partial Motion to Dismiss
Plaintiff's Sixth, Seventh, and Eighth Claims for Relief
pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 28.) At issue in
the Motion are Plaintiff's claims under Colorado law for
breach of contract and promissory estoppel (Claims 6 &
7), and wrongful termination in violation of public policy
6 and 7 depend on language in Defendant Hotel Equities'
Associate Handbook (“the Handbook”). Plaintiff
with her Complaint submitted a copy of the Handbook (ECF No.
1-3) to the Court.
Handbook provides for, among other things, a “POSITIVE
DISCIPLINE PROCEDURE” by which an employee may be
terminated if she is the subject of “TWO (2) documented
verbal/written warnings and a THIRD (3rd) incident or
situation occurs within a twelve (12)-month period which
either violates policy or rules or indicates inappropriate
behavior or poor judgment.” (ECF No. 1-3 at 13.)
Plaintiff argues that these procedures were legally binding
on Defendants, and alleges that in terminating her, they
failed to follow them. (ECF No. 1 at 22-29.)
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss a cause of action for “failure to state a claim
upon which relief can be granted.” The 12(b)(6)
standard requires the Court to “assume the truth of the
plaintiff's well-pleaded factual allegations and view
them in the light most favorable to the plaintiff.”
Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174,
1177 (10th Cir. 2007). In ruling on such a motion, the
dispositive inquiry is “whether the complaint contains
‘enough facts to state a claim to relief that is
plausible on its face.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The Court may consider a document outside the
pleadings, even in a Rule 12(b)(6) analysis, if the document
is (1) “mentioned in the complaint, ” (2)
“central to [the] claims [at issue], ” and (3)
not challenged as inauthentic. Toone v. Wells Fargo Bank,
N.A., 716 F.3d 516, 521 (10th Cir. 2013).
Claims 6 & 7 - Breach of Contract & Promissory
Colorado, employees hired for indefinite periods are
presumptively terminable at will. Continental Air Lines,
Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987) (en
banc). Termination procedures in an employee handbook may
nevertheless be binding on an employer under ordinary
contract principles or a theory of promissory estoppel.
Id. (internal citations omitted).
so, dismissal “based on a handbook is appropriate if
the employer has clearly and conspicuously disclaimed intent
to enter a contract limiting the right to discharge
employees.” Ferrera v. Nielsen, 799 P.2d 458,
461 (Colo.App. 1990) (citing Therrien v. United Air
Lines, Inc., 670 F.Supp. 1517 (D. Colo. 1987)).
“Whether a contract disclaimer is clear and conspicuous
is a question of law for the court.” Id.
(citing Durtsche v. Am. Colloid Co., 958 F.2d 1007,
1010 (10th Cir. 1992)). Defendants, arguing that the Handbook
contains such a disclaimer, point to two of its provisions:
handbook is designed to provide basic information on certain
policies and procedures in place at Hotel Equities Group LLC.
The policies contained in thishandbook are
intended as guidelines only and are subject to
change or elimination at the sole discretion of Hotel
Equities Group, LLC, depending on the policy. This
handbook should not be construed as, and does ...