Meeker v. Life Care Centers of America, Inc. et al

Filing 165

ORDER that the Recommendation of United States Magistrate Judge filed May 29, 2015 ECF No. 123 is AFFIRMED IN PART AND REJECTED IN PART. it is ORDERED that Plaintiffs Motion to Amend Complaint Pursuant to Fed. R. Civ. P. 15(a) ECF No. 67 is GRANTED IN PART AND DENIED IN PART, by Judge Wiley Y. Daniel on 9/30/2015.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 14-cv-02101-WYD-NYW
MICHELLE MEEKER,
Plaintiff,
v.
LIFE CARE CENTERS OF AMERICA, INC., d/b/a HERITAGE PARK CARE CENTER;
COLORADO MEDICAL INVESTORS, LLC, d/b/a HERITAGE PARK CARE CENTER;
TOWN OF CARBONDALE, COLORADO;
EUGENE SCHILLING, Chief of the Carbondale Police Department, in his official and
individual capacities;
MICHAEL ZIMMERMAN, Police Officer in the Carbondale Police Department, in his
official and individual capacities;
ROBERT BAKER, Executive Director of LCCAs Heritage Park Care Center;
JESSICA VARLEY, Human Resources Director of LCCAs Heritage Park Care Center;
and
MELANIE HOLMES, Director of Nursing of LCCAs Heritage Park Care Center,
Defendants.

ORDER AFFIRMING IN PART AND REJECTING IN PART
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
(RESTRICTED - LEVEL ONE)

THIS MATTER is before the Court on Plaintiff’s Motion to Amend Complaint
Pursuant to Fed. R. Civ. P. 15(a). Plaintiff seeks leave to add claims asserting “Willful
and Wanton Breach of the Covenant of Good Faith and Fair Dealing” and “Willful and
Wanton Breach of Contract” against Defendants Life Care Centers of America and
Colorado Medical Investors Defendants [“the Life Care Defendants”]. This motion was
referred to Magistrate Judge Wang for a Recommendation. See 28 U.S.C § 636(b)(1);
Fed. R. Civ. P. 72.

A Recommendation of United States Magistrate Judge was issued on May 29,
2015 (ECF No. 123), and is incorporated herein by reference. Magistrate Judge Wang
recommends therein that Plaintiff’s Motion to Amend be denied as futile.
More specifically, the Recommendation notes that Plaintiff relies on statements
made by the Life Care Defendants in two documents to support the claims she seeks to
add: a document entitled “Welcome and Introduction; Life Care History; Mission and
Values” and a document entitled “Life Care Centers of America: Our Jobs Together.”
(Recommendation at 3-4.) Magistrate Judge Wang finds that the language in those
documents relied upon by Plaintiff to establish a contractual obligation “consists of
vague assurances that amount to aspirational policy statements, rather than express or
even implicit promises upon which a plaintiff could reasonably rely.” (Recommendation
at 7.) She further finds that “those statements are not sufficiently definite guideposts a
court could possibly enforce.” (Id.) For instance, she states, “this court can imagine no
objective way to measure whether the Life Care Defendants had fulfilled or breached a
contractual obligation to have their work ‘rooted in the Judeo-Christian ethic’ and
whether they had demonstrated ‘sufficient obedience to God to fulfill their corporate
mission and principles.’” (Id.) Accordingly, Magistrate Judge Wang recommends that
Plaintiff’s Motion to Amend “be denied as futile, on the ground that the Motion and
accompanying proposed amended complaint fail to set forth the substance of any
enforceable contractual obligation.” (Id.)
Plaintiff filed timely Objections to the Recommendation on June 16, 2015.
Defendants filed a response to Plaintiff’s Objections on June 30, 2015, and Plaintiff filed
-2-

a reply on July 14, 2015. I will construe the recommendation to deny the motion to
amend as a dispositive ruling since a finding that Plaintiff's proposed amendments are
futile is “functionally equivalent” to a finding that the proposed amendments should be
dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Jefferson Cnty.
Sch. Dist. v. Moody's Investor's Servs., 175 F.3d 848, 859 (10th Cir. 1999) (the futility
inquiry "is functionally equivalent to the question of whether a complaint may be
dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6)). The objections
filed by Plaintiff thus necessitate a de novo determination as to the portion of the
Recommendation to which objection is made. Fed. R. Civ. P. 72(b); 28 U.S.C.
§ 636(b)(1).
Plaintiff asserts in her Objections that the promises made by the Life Care
Defendants in the documents at issue are sufficient to form the basis of a contract. I
first agree with Defendant that to the extent Plaintiff attempts to rely on documents that
were not referenced as a basis for her motion to amend, that is improper. I will consider
only the documents relied on in the motion to amend to support her breach of contract
claims and that were considered by Magistrate Judge Wang in her Recommendation.
As to the claim for “Willful and Wanton Breach of the Covenant of Good Faith
and Fair Dealing” that she seeks to leave to add, Plaintiff contends there are multiple
promises that form the basis of this claim. She relies on the “Mission and Values”
policy, where the Life Care Defendants promises that its “[a]ssociates [employees] are
Life Care’s most valuable resource” (ECF No. 67-1, pp. 3 and 5), that the Life Care
Defendants believe in providing an environment in which its employees “[h]ave
-3-

opportunities through education and advancement to reach their maximum potential,”
“[a]re motivated to continue their employment with the center so long as they meet the
expectations of their jobs,” “[a]re free to express their ideas and concerns, and are
encouraged to participate in, and feel a part of, the organization,” and “[a]re treated
fairly and with respect, regardless of race, religion, culture, ethnic or backgrounds.” (Id.,
p. 5.) The “Mission and Values” policy also states that the Life Care Defendants believe
“unselfishness and teamwork are vital to the success of the center and the corporation.”
(Id.) With respect to the management of the facilities, the Life Care Defendants
represent that there will be fair and consistent application of the rules, policies and
procedures of the center and the corporation, that its “work is rooted in the JudeoChristian ethic, and that obedience to God is best measured by our service to others,"
and that “[o]nly by following this principle will our mission and potential as a corporation
be fulfilled.” (Id.)
I agree with Magistrate Judge Wang that the vast majority of these statements
are mere vague assurances that do not rise to the level of a contract or support a claim
for breach of the covenant of good faith and fair dealing. See Hoyt v. Target Stores,
Div. of Dayton Hudson Corp., 981 P.2d 188, 194 (Colo. App. 1998) (“[w]hether an
alleged promise is claimed to be part of an express contract or is asserted as the basis
for the application of promissory estoppel, it must be sufficiently specific so that the
judiciary can understand the obligation assumed and enforce the promise according to
its terms.”) (citing Soderlun v. Public Service Co., 944 P.2d 616 (Colo. App. 1997)).
Plaintiff argues, however, that the representations to the effect that employees
-4-

[a]re treated fairly and with respect. . . .” support a claim for breach of an express
covenant of good faith and fair dealing. The Hoyt court noted that “if a claim based on
the violation of an express covenant of good faith is to be recognized, such a claim is a
contractual one.” 981 P.2d at 194; see also Lutfi v. Brighton Community Hosp. Assoc.,
40 P.3d 51, 59 (Colo. App. 2001).
Plaintiff asserts that such a claim was recognized by the Colorado Supreme
Court in the Decker cases. I disagree. Instead, the Colorado Supreme Court stated it
merely “accept[ed] the finding of the jury of a breach of an express contractual
obligation without addressing the elements of such a claim or the proof necessary to
sustain the claim”, as those issues were not before the court. Decker v. BrowningFerris Indus. of Colo., Inc., 947 P.2d 937, 940 (Colo. 1997); see also Valdez v. Cantor,
994 F.2d 483, 487 (Colo. App. 1999) (stating that the Colorado Supreme Court “has not
yet decided whether Colorado law recognizes a claim based upon an express covenant
of good faith and fair dealing”) (citing Decker).
Moreover, as noted in the Valdez case, even if such a claim were to be
recognized, “it is questionable whether a general statement by an employer that the
employee will be treated fairly would be sufficient to give rise to a judicially enforceable
obligation.” 994 F.2d at 487 (citing Soderlun). Indeed, the Colorado Court of Appeals
held in Hoyt that “[a]ssurances of fair treatment . . . are unenforceable.” 981 P.2d at
194.
I recognize that Plaintiff cites cases whereby courts have held that language in
an employee handbook that an employer “is committed to providing a ‘fair and equitable
-5-

working environment’” may create an enforceable contract if the employee can prove all
the elements of the formation and breach of a contract.” See Baker v. Echostar
Communications Corp., No. 06-cv-01103-PSF-BNB, 2007 WL 4287494, at *12 (D. Colo.
Dec. 4, 2007) (Figa, J.) (unpublished) (quoting Tuttle v. ANR Freight System, Inc., 797
P.2d 825, 827 (Colo. App. 1990) (emphasis added)). These rulings are premised,
however, on the use of the word “commit”, as “defendant’s use of that word
demonstrates a promise by defendant to follow an equal employment program with the
company.” Tuttle, 797 P.2d at 828. “[I]t establishes with specificity defendant’s
commitment not to discriminate in either employment or remuneration.” Id. The “fair
treatment” language that gave rise to the express covenant was thus linked to the
employer’s actions as it related to the termination of the plaintiff.
Also, in Baker the court found that the employer’s handbook set forth specific
prohibited conduct, defined in detail the prohibited conduct, and explained the
disciplinary procedures for such conduct. 2007 WL 4287494, at *12. It found that those
statements could “‘reasonably be relied upon’ by employees” and were “‘sufficiently
definite to allow a court to understand the nature of the obligation.” Id. (quotation
omitted). In so holding, the Court contrasted that language from other cases where the
statements from the employer’s handbook were found to be nothing more than vague
assurances. Id. (citing Vasey v. Martin Marietta, 29 F.3d 1460, 1464 (D. Colo. 1994)
and Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (D. Colo. 1997)).
Here, the document that Plaintiff relies on did not use the term “commit”, and the
statement of fair treatment by the employer that Plaintiff relies on is not linked in any
-6-

way to her claim related to an emergency preparedness drill. In contrast to the Baker
case, I am unable to see how a statement that employees are to be treated fairly would
allow a court to understand the nature of the obligation taken in relation to a security drill
such is at issue in this case and enforce the terms. See Hoyt, 981 P.2d at 184 (finding
that in order to constitute an enforceable promise, a statement by the employer “must
be sufficiently definite to allow a court to understand the nature of the obligation
undertaken”); Soderlun, 944 P.2d at 620 (where an alleged promise is claimed to be
part of an express contract it must “be sufficiently specific so that the judiciary can
understand the obligation assumed and enforce the promise according to its terms”).
Moreover, unlike in Baker, the document relied on by Plaintiff did not set forth specific
prohibited conduct or define the prohibited conduct.
I also find that Plaintiff’s reliance on the Soderlun case is misplaced. In that
case, the court held that written statements in an employer’s corporate code of business
conduct were so indefinitely generic as to be unenforceable under any contract. 944
P.2d at 619. The statements at issue in Soderlun are similar to the statements at issue
in this case. The Soderlun court determined that the following statements were not
“sufficiently definite and specific as to be judicially enforceable”: “high ethical and moral
standards in all we do,” “acting in honesty, decency, fairness, openness,
trustworthiness,” “it is essential that employees, at all times, demonstrate the highest
ethical conduct when conducting business with fellow employees.” Id. at 618-19. The
Soderlun case thus actually supports the Recommendation in this case that none of the

-7-

statements relied upon by the plaintiff were sufficiently definite and specific to be
judicially enforcement, as a matter of law.
Based on the foregoing, I find that the cases relied on by Plaintiff are not
controlling. I further find that Magistrate Judge Wang’s recommendation that Plaintiff’s
Motion for Leave to Amend the Complaint be denied as to the claim for “Willful and
Wanton Breach of the Covenant of Good Faith and Fair Dealing” should be affirmed.
I now turn to the “Willful and Wanton Breach of Contract” claim. Plaintiff asserts
that her breach of contract claim is based on the promises of the Life Care Defendants’
“long standing commitment of providing a safe working environment,” and “valu[ing] the
wellness” of its employees, as well as committing to work “aggressively with our
associates in accident prevention” and promising a safety policy that “centers around a
team approach committed to working together to prevent accidents and injuries” while
requiring Plaintiff to join “as a member of our Life Care Safety Team.” (ECF No. 67-2.)
Plaintiff asserts that she should be allowed to amend the complaint to add a claim that
the Life Care Defendants breached this contract when it arranged for her to be taken
hostage by a man with a gun and made to believe that her life was in danger. I agree,
and reject Magistrate Judge Wang’s recommendation to deny Plaintiff’s Motion to
Amend as to this claim.
Unlike the claim for the breach of the covenant of good faith and fair dealing, the
language that Plaintiff relies on is specific and is arguably relevant to her claim. Under
the specific factual circumstances in this case, whether the Life Care Defendants’
behavior in putting Plaintiff in a situation in which she feared for her life contravened its
-8-

promises to them to work “together to prevent” injuries and to provide a “safe” work
environment is not subject to a categorical determination at this stage that the promises
are merely “vague assurances”. I believe this should is something that should be
fleshed out further on the merits, whether through a motion to dismiss or motion for
summary judgment. Accordingly, I reject Magistrate Judge Wang’s recommendation to
deny Plaintiff’s Motion for Leave to Amend as to the “Willful and Wanton Breach of
Contract” claim. I find that Plaintiff should be allowed to amend her complaint to add
such a claim.
In conclusion, it is
ORDERED that the Recommendation of United States Magistrate Judge filed
May 29, 2015 (ECF No. 123) is AFFIRMED IN PART AND REJECTED IN PART. It is
affirmed as to the recommendation to deny Plaintiff’s Motion to Amend Complaint
Pursuant to Fed. R. Civ. P. 15(a) as to the request to add a claim for “Willful and
Wanton Breach of the Covenant of Good Faith and Fair Dealing”. It is rejected as to the
recommendation to deny Plaintiff’s Motion to Amend Complaint to add a claim for
“Willful and Wanton Breach of Contract.” In accordance therewith, it is
ORDERED that Plaintiff’s Motion to Amend Complaint Pursuant to Fed. R. Civ.
P. 15(a) (ECF No. 67) is GRANTED IN PART AND DENIED IN PART. It is denied to
the extent Plaintiff seeks to add a claim for “Willful and Wanton Breach of the Covenant
of Good Faith and Fair Dealing”. It is granted as to Plaintiff’s request to file an
amended complaint that adds a claim for Willful and Wanton Breach of Contract. In
accordance
-9-

with D.C.COLO.LCivR 15.1(b), Plaintiff shall file and serve the amended complaint on
all parties under Fed. R. Civ. P. 5 no later than 14 days after the filing of this order.
Dated: September 30, 2015
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

-10-