Uhrig v. Banner Health, An Arizona Corporation d/b/a North Colorado medical Center

Filing 82

ORDER granting in part and denying in part 50 Motion for Summary Judgment. By Judge Robert E. Blackburn on 7/8/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01325-REB-MJW
SANDI UHRIG,
Plaintiff,
v.
BANNER HEALTH, an Arizona corporation d/b/a North Colorado Medical Center,
Defendant.

ORDER RE: MOTION FOR SUMMARY JUDGMENT
Blackburn, J.
The matter before is Defendant’s Motion for Summary Judgment [#50],1 filed
May 23, 2014. I grant the motion for summary judgment in part and deny it in part.2
I. JURISDICTION
I have jurisdiction over this matter under 28 U.S.C. §§1331 (federal question) and
1367 (supplemental jurisdiction).
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);

1

“[#50]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
2

The issues raised by and inherent to the motion for summary judgment are fully briefed,
obviating the necessity for evidentiary hearing or oral argument. Thus, the motion stands submitted on the
briefs. Cf. FED. R. CIV. P. 56. Geear v. Boulder Community Hospital, 844 F.2d 764, 766 (10th Cir.)
(holding that hearing requirement for summary judgment motions is satisfied by court's review of
documents submitted by parties), cert. denied, 109 S.Ct. 312 (1988).

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 party who does not have the burden of proof at trial must show the absence of
a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d
1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). 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. Id. 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). However, conclusory statements and testimony based merely on
conjecture or subjective belief are not competent summary judgment evidence. Rice v.
United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 120 S.Ct. 334 (1999).
III. ANALYSIS
The facts of this case are well known to the parties and need not be repeated at
length here. Plaintiff, a flight nurse, was terminated in November 2011, for alleged job

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performance issues. She has asserted claims for discrimination and retaliation3 under
the Americans With Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101-12213;
interference and retaliation under the Family and Medical Leave Act of 1993 (“FMLA”),
29 U.S.C. §§ 2601-2654; and state law claims for wrongful discharge in violation of
public policy, breach of contract, and promissory estoppel.
I find that summary judgment is appropriate as to plaintiff’s claims for breach of
contract and promissory estoppel. “A basic common-law doctrine was that, in the
absence of an explicit contract to the contrary, every employment is presumed to be an
‘at-will’ employment.” Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 104 -05 (Colo.
1992). See also Soderlun v. Public Service Co. of Colorado, 944 P.2d 616, 619
3

Defendant did not move for summary judgment as to plaintiff’s ADA and FMLA retaliation claims
in its motion. In its reply brief, however, it maintains that these claims were never pled in the complaint
and therefore are waived. To the contrary, it is defendant which has forfeited this argument. Both claims
were clearly set forth in the parties’ proposed Final Pretrial Order, which this court adopted at the close of
the final pretrial conference little more than a week ago. (See Final Pretrial Order ¶¶ 3(3) & 3(5) at 3
[#71], filed June 27, 2014.) In addition, the parties subsequently jointly submitted stipulated instructions as
to these claims. (See Joint Proposed Jury Instructions Stip-16 at 22, Stip-19 & 20 at 27-28, & Stip 40,
41 & 42 at 55-57 [#78], filed July 1, 2014.)
Moreover, the Final Pretrial Order supersedes any prior pleading in the case and becomes the
controlling document for trial. See Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002). “[T]he
inclusion of a claim in the pretrial order is deemed to amend any previous pleadings which did not include
that claim.” Id. Although the court does not “normally expect to see claims or defenses not contained in
the pleadings appearing for the first time in the pretrial order,” id., generally, “a plaintiff should not be
prevented from pursuing a valid claim just because she did not set forth in the complaint a theory on which
she could recover, provided always that a late shift in the thrust of the case will not prejudice the other
party in maintaining his defense upon the merits,” Evans v. McDonald's Corp., 936 F.2d 1087, 1090-91
(10th Cir. 1991). The inclusion of previously unasserted claims in the Final Pretrial Order effectively
constitutes an amendment to the complaint, and leave to amend should be freely given “when justice so
requires.” Okland Oil Co. v. Knight, 92 Fed. Appx. 589, 601-02 (10th Cir. Dec. 17, 2003) (citing Fed. R.
Civ. P. 15(a)).
Defendant did not even bring this issue to the court’s attention at the final pretrial conference,
much less object to or show prejudice inherent in the granting of the belated amendment. These claims
appear to be based on much, if not all, of the same evidence that will be offered in support of plaintiff’s
other claims as to which summary judgment is being denied. Thus, in the exercise of my discretion, I find
and conclude that, to the extent defendant has not forfeited its objection all together, it has not been
deprived of fair notice or an opportunity for discovery as to these claims and therefore that the amendment
should be allowed and the claims tried to the jury.

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(Colo. App. 1997) (“Absent an explicit understanding to the contrary, every employment
relationship is presumed to be ‘at-will,’ meaning that either the employer or the
employee may terminate the relationship at any time, without notice and without
cause.”). However, that presumption may be rebutted on
proof that the employer made statements to the employee . .
. and that those statements, the circumstances under which
they were made, and the employee's reaction thereto, met
the requirements of Restatement (Second) of Contracts §
24 (1981) for an offer by the employer and the acceptance of
that offer by the employee. Alternatively, even if the
requirements for the formation of a contract under
Restatement § 24 cannot be shown, the employee may
demonstrate that conditions have been imposed upon the
at-will relationship, based upon statements made by the
employer, by proving the prerequisites for application of
doctrine of promissory estoppel under Restatement
(Second) of Contracts § 2 and § 90 (1981).
Soderlun, 944 P.2d at 619. In an attempt to demonstrate such an enforceable
statement based on language included in certain Corrective Action Statements which
were used as part of defendant’s progressive discipline policy. Plaintiff asserts that the
forms’ admonition to the manager completing it to “be specific; use names, dates, time
etc.” constitutes a promise that plaintiff could be terminated only if that directive was
followed. (Def. Motion App., Exhs. D, F, & G.)
This argument is specious. Nothing in this language can reasonably be
interpreted to constitute an offer sufficient to create an enforceable contract between
defendant and plaintiff,4 see RESTATEMENT (SECOND) OF CONTRACTS § 24, or to give
4

Nor does this statement constitute a revision of the Employee Handbook, which plaintiff likewise
has not shown constitutes an enforceable employment contract. Indeed, the evidence plainly
demonstrates that it is not. “While statements made in an employee handbook limiting an employer's right
to discharge employees may be the basis for breach of implied contract and promissory estoppel claims
by discharged employees, summary judgment is appropriate if the employer has clearly and conspicuously

4

rise to a promise sufficient to induce any action or forbearance on plaintiff’s part,5 see
id. § 90(a). Summary judgment therefore will be granted as to those claims.
However, with respect to plaintiff’s remaining claims, having reviewed the motion
and response and the apposite arguments, authorities, and evidence presented by the
parties, it is apparent that there exist genuine disputes as to material facts that are not
appropriate for summary resolution. Thus the motion for summary judgment as to those
claims must be denied.
IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That Defendant’s Motion for Summary Judgment [#50], filed May 23, 2014,
is GRANTED IN PART and DENIED IN PART, as follows:
a. That the motion is GRANTED with respect to plaintiff’s claims for
breach of contract and promissory estoppel, and those claims are
DISMISSED WITH PREJUDICE; and
b. That in all other respects, the motion is DENIED; and

disclaimed intent to enter into a contract limiting the right to discharge employees.” George v. Ute Water
Conservancy District, 950 P.2d 1195, 1198 (Colo. App. 1997). Defendant’s Employee Handbook
contains a conspicuous “DISCLAIMER” page which clearly informs employees that
This handbook provides general, non-binding information regarding the
employment policies of Banner Health (“Banner”). It is intended as a
guide. It is not an employment contract or a promise to provide specific
terms or conditions of employment. Your employment is “at-will,”
meaning that either you or Banner may terminate employment at any time
for any reason or no reason, with or without advance notice.
(Def. Motion App., Exh. A.) Thus, any argument that the Employee Handbook creates a contract or
constitutes a promise enforceable under a theory of promissory estoppel is patently foreclosed.
5

Plaintiff does not even bother to identify what action she took or abstained from taking in
reliance on this representation.

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2. That at the time judgment enters, judgment with prejudice SHALL ENTER on
behalf of defendant, Banner Health, an Arizona corporation d/b/a North Colorado
Medical Center, against plaintiff, Sandi Uhrig, as to plaintiff’s claims for breach of
contract and promissory estoppel.
Dated July 8, 2014, at Denver, Colorado.
BY THE COURT:

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