Romero v. Helmerich & Payne International Drilling Co.

Filing 136

MEMORANDUM OPINION and ORDER denying Defendant's oral Motion for Judgment as a Matter of Law, which it raised at the close of Plaintiff's evidence and again at the close of all evidence. By Magistrate Judge Nina Y. Wang on 8/22/17. (nywlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00720-NYW
SILO ROMERO,
Plaintiff,
v.
HELMERICH & PAYNE INTERNATIONAL DRILLING CO.,
Defendant.
______________________________________________________________________________
MEMORANDUM OPINION AND ORDER
______________________________________________________________________________
Magistrate Judge Nina Y. Wang
This matter comes before the court on Defendant Helmerich & Payne International
Drilling Co.’s (“Defendant” or “H&P”) oral, mid-trial Motion for Judgment as a Matter of Law
and its renewed motion for judgment as a matter of law made at the close of evidence (“JMOL
Motion”).1 The JMOL Motion is before the court pursuant to the Order of Reference dated July
13, 2015 [#24], 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D.C.COLO.LCivR 72.2. On August
18, 2017, the court issued an oral ruling on the record disposing of the JMOL Motion. The court
has carefully considered the Motion and related briefing, the entire case file, and the applicable
case law, and now memorializes its oral ruling in a written order. For the following reasons, as
well as those stated on the record, the JMOL Motion is DENIED.

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The court refers to the motions collectively in singular form, for ease of reference, because
Defendant renewed its Motion for Judgment as a Matter of Law without making additional
substantive arguments.

BACKGROUND
Plaintiff Silo Romero (“Plaintiff” or “Mr. Romero”) commenced this action on December
24, 2014, by filing a Complaint in the District Court for Mesa County, Colorado. [#5] Plaintiff
asserts one claim for wrongful discharge in violation of public policy, alleging that he was
terminated from his employment with H&P in retaliation for seeking worker’s compensation
benefits for lost wages incurred after an on-the-job injury. H&P contends that Mr. Romero
voluntarily resigned. H&P removed the action to this District and this court exercises diversity
jurisdiction pursuant to 28 U.S.C. § 1332. See [#1].2 Trial in this matter commenced before a
jury on August 14, 2017. On August 17, 2017, Defendant moved orally, after the close of
Plaintiff’s case-in-chief, for judgment as a matter of law pursuant to Rule 50(a) of the Federal
Rules of Civil Procedure, and renewed the same motion, without any further argument, at the
close of its case.3
H&P argued it was entitled to judgment as a matter of law as to Plaintiff’s claim for
wrongful discharge in violation of public policy under two theories: (1) there was insufficient
evidence under any theory of discharge (actual or constructive) to adduce a causal connection
between Plaintiff’s pursuit of a worker’s compensation claim for lost wage benefits and
Plaintiff’s separation from employment at H&P; and (2) there was insufficient evidence of
constructive discharge because Mr. Romero had testified that he had been fired, not that he had
quit, and the record did not support a finding that his working conditions were objectively
intolerable. The court denied the JMOL Motion on the first theory on the record on August 17,

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H&P asserted in its Notice of Removal that while Plaintiff filed his Complaint on December
24, 2014, the amount of damages claimed was not clear until March 20, 2015, when Defendant
received Plaintiff’s Initial Disclosures identifying over $1,200,000 in economic damages. [#1 at
¶ 6].

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Plaintiff did not offer any additional evidence in rebuttal.
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2017, before Defendant offered its defense. As to the second issue related to constructive
discharge, the court deferred ruling on the JMOL Motion and sought further briefing from the
Parties on the issue. See Hillman v. U.S. Postal Serv., 169 F. Supp. 2d 1218, 1223 (D. Kan.
2001) (“While the trial court has the authority under Rule 50(a) to grant a motion for judgment
as a matter of law at the close of the plaintiffs’ case, the more prudent course is to defer ruling
until both sides have rested”) (citations omitted). See also [#125, #126]. The court now turns to
the second theory offered in support of the JMOL Motion.4
LEGAL STANDARDS
I.

Judgment as a Matter of Law
Rule 50(a)(1) of the Federal Rules of Civil Procedure provides:
(1) In General. If a party has been fully heard on an issue during a jury trial and the court
finds that a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue, the court may: (A) resolve the issue against the party; and (B)
grant a motion for judgment as a matter of law against the party on a claim or defense
that, under the controlling law, can be maintained or defeated only with a favorable
finding on that issue.
A motion for judgment under Rule 50(a)(1) may be made at any time before the case is

submitted to the jury. Fed. R. Civ. P. 50(a)(2). In evaluating a defendant’s Rule 50(a) motion,
the court is required to consider all the evidence presented at trial, and must review the record
“taken as a whole.” Reeves v. Sanderson, 530 U.S. 133, 150 (2000). “[T]he court must draw all
reasonable inferences in favor of the nonmoving party and it may not make credibility
determinations or weigh the evidence.” Id. at 150. “Credibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-251 (1986)).

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The court maintains its denial of the JMOL Motion as to the first theory for the same reasons as
set forth on the record on August 17, 2017.
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Thus, although the court should review the record as a whole, it must disregard all
evidence favorable to the moving party that the jury is not required to believe. That is, the court
should give credence to the evidence favoring the nonmovant as well as that “evidence
supporting the moving party that is uncontradicted and unimpeached, at least to the extent that
the evidence comes from disinterested witnesses.” Reeves, 530 U.S. at 151 (quoting 9A C.
Wright & A. Miller, FEDERAL PRACTICE

AND

PROCEDURE, § 2529, p. 300 (2d ed. 1995)). In

sum, the “standard for granting summary judgment mirrors the standard for judgment as a matter
of law, such that the ‘inquiry under each is the same.’” Reeves, 530 U.S. at 150 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-251). The court may grant the motion only if
the evidence points but one way and is susceptible to no reasonable inferences which may
support the opposing party’s position. Bristol v. Board of County Commissioners of County of
Clear Creek, 281 F.3d 1148, 1161 (10th Cir. 2002).
II.

Wrongful Discharge in Violation of Public Policy
Plaintiff has the burden of establishing each essential element of his claim by a

preponderance of the evidence. Because this court exercises diversity jurisdiction, it applies the
substantive law of the state of Colorado. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14
L.Ed.2d 8 (1965). In Colorado, a terminated employee may sue an employer for wrongful
discharge if the employee “shows that he was discharged for exercising a specifically enacted
right or duty.” Smith v. Colo. Interstate Gas Co., 777 F. Supp. 854, 857 (D. Colo. 1991)
(citations omitted). A plaintiff must prove each of the following elements in order to prevail:
(1) the employee exercised an important work-related right or privilege as a worker;
(2) the employer was aware or reasonably should have been aware that the employee
exercised his right or privilege as a worker; and

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(3) the employer discharged the employee because of his or her exercise of the right or
privilege as a worker.
CJI-Civ. 4th 31:13 (2016). See also Mowry v. United Parcel Serv., Inc., 280 F. App’x 702, 707–
08 (10th Cir. 2008) (citing Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo. 1992)).
ANALYSIS
In support of its argument that it was entitled to judgment as a matter of law as to any
theory based on constructive discharge, H&P argued that Mr. Romero testified unequivocally
that he did not quit, but was fired, and that he did not find the working conditions at H&P so
intolerable that he felt forced to quit. After reviewing the informal transcript of the proceeding,
the court concludes that Mr. Romero’s testimony does not entitle H&P to judgment as a matter
of law.
The Parties did not provide authority precisely on point in their supplemental trial briefs,
and this court could find none. Accordingly, the court considered as instructive the law of the
State of Colorado on wrongful discharge in violation of public policy as well as the state’s law
on constructive discharge. After doing so, the court concludes that Mr. Romero’s testimony that
he was fired, viewed within the context of all of his testimony, is not dispositive of whether he
was constructively discharged. Taking a step back from the semantics of “fired” versus “quit,”
the court first considers the general remedial nature of the Colorado common law claim. The
Colorado Supreme Court first recognized the tort of wrongful discharge in violation of public
policy in Martin Marietta Corp. v. Lorenz, noting that courts in the majority of states identify a
cause of action for wrongful discharge pursuant to the public-policy exception to the at-will
employment doctrine. 823 P.2d 100, 105–06 (Colo. 1992) (en banc). This court recognizes that
the claim for wrongful discharge in violation of public policy creates an exception to the at will

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nature of some employment relationships, i.e, an employer can fire an employee for cause or for
no reason at all, so long as the reason does not violate public policy. The purpose of the
common law claim is to protect workers from being involuntarily separated from their
employment due on the exercise of their protected rights. As observed by the Lorenz court:
[t]o allow an employer to terminate the employment of an employee in retaliation
for the employee’s pursuit of a workmen’s compensation claim would open the
doors to “coercion and other duress-provoking acts,” whereby employers could,
by threat of retaliation, discourage or prevent employees from seeking the benefits
due them and thereby undermine the fundamental purposes of the workmen’s
compensation system.
823 P.2d at 108 (quoting Lathrop v. Entemann’s Inc., 770 P.2d 1367 (Colo. App. 1989)). The
Lorenz court noted the conclusion in Lathrop that “an employer’s retaliation against such an
employee for his exercise of such right violates Colorado’s public policy” and “provides the
basis for a common law claim by the employee to recover damages sustained by him as a result
of that violation.” Id.
Working within this framework, the court concludes that the operative inquiry related to
discharge is not limited to an examination of the particular words used in any exchange between
an employee and his or her supervisor or employer, but whether the employee left his or her
position voluntarily or involuntarily. In this instance, the operative inquiry is whether the
evidence demonstrates that Mr. Romero left his employment involuntarily, either because H&P
actually fired him or because H&P constructively discharged him by making his working
conditions so intolerable following the exercise of his right to worker’s compensation benefits
that he had no choice but to leave his employment. Indeed, the Court of Appeals for the Tenth
Circuit has recognized that constructive discharge is simply one form of wrongful discharge. See
Chapman v. Carmike Cinemas, 307 F. App’x 164, 174 (10th Cir. 2009) (quoting Draper v.
Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir. 1998); Hall v. U.S. Dep’t of Labor, Admin.
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Review Bd., 476 F.3d 847, 860 (10th Cir. 2007) (explaining that to prevail on a constructive
discharge claim, the employee must show either that the employer has made objective working
conditions so difficult that a reasonable person in the employee’s position would feel compelled
to resign or the employer forced the plaintiff to choose between resignation or termination). Cf.
Patterson v. Portch, 853 F.3d 1399, 1405-06 (7th Cir. 1988) (discussing and distinguishing four
forms of discharge, but observing that constructive discharge is treated in law as the equivalent
of outright discharge by the employer). In reviewing the admitted evidence through this lens, the
court finds that Mr. Romero’s testimony that he was fired, and that his working conditions were
not intolerable, are not dispositive. During trial, Mr. Romero testified that Donnie Stevison gave
him a choice to either sign a disciplinary charge, known as a 302 Form, or to “pack his sh** and
go.”5 Plaintiff’s co-worker, Adam Vigil, testified that he understood those words to mean that
Mr. Romero did not have a choice to remain employed with H&P, i.e., that Plaintiff had been
fired. Both Mr. Vigil and Justin Petz, Mr. Romero’s direct supervisor, testified that Mr. Stevison
had reprimanded Mr. Romero for being “lazy,” or lacking a strong work ethic, and that they
believed, from their own experience, that the criticism was an unfair assessment of Mr.
Romero’s work. Mr. Petz further testified that Mr. Stevison made no effort to stop Mr. Romero
from leaving even after Mr. Stevison agreed that Mr. Romero was a good worker.
The next inquiry for the court is whether, as a matter of law, a single meeting can result
in working conditions so intolerable as to cause a constructive discharge. Defendant contends
that the single incident where an employee reasonably believes that he has been terminated based
on an employer’s statement is inadequate, as is an employee’s reasonable, but subjective, belief

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The court is disinclined to include profanity in its ruling, but would note the precise verbiage
used during testimony because, in the court’s estimation, the nature of the language influences
how one interprets the event that is central to this action.
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that he has been terminated. Plaintiff argues that Colorado Jury Instruction 39:10 acknowledges
the existence of an implied constructive discharge:
Even if the plaintiff resigned from (his) (her) employment, if you find that the
words spoken or actions taken by the defendant would have led a reasonable
person in the plaintiff’s position to believe, and did lead the plaintiff to believe,
that (he) (she) had been or was going to be discharged by the defendant, then the
plaintiff was, in fact, discharged by the defendant.
CJI-Civ. 31:10. Defendant insists there can be no implied constructive discharge in this case, as
such a theory is limited to the context of a public employee and is not applicable to an employee
at will in a private corporation. The court respectfully disagrees with Defendant, and frames the
inquiry differently. First, this court concludes, as a matter of law, that a single incident can
amount to the type of intolerable working conditions necessary to find constructive discharge.
Indeed, to decide otherwise would mean an employee facing a Hobbesian choice in a single
occurrence has no cognizable claim because the remainder of her employment is not intolerable,
and may even be enjoyable. Second, Defendant did not cite any authority that expressly limits
CJI-Civ. 31:10 to the public employee context, and this court could find none. Neither the Notes
of Use associated with the jury instruction, nor the case upon which the instruction is based,
suggests such a limitation. See Colorado Civil Rights Comm’n v. School Dist. No. 1, 488 P.2d
83 (Colo. App. 1971). Rather, the Notes of Use state:
[t]his instruction should be given if the evidence creates a legitimate issue as to
whether the plaintiff’s resignation was voluntary or was induced by the
employer’s conduct that led the plaintiff to believe and would have led a
reasonable person in the plaintiff’s position to believe that he or she had been or
was going to be discharged.
Absent authority from Colorado courts, this District, or the Tenth Circuit, the court declines to
read in a limitation that would preclude an employee in the private employer context from
establishing implied constructive discharge when a reasonable person in the plaintiff’s position

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would believe that his or her employer’s conduct or words amounted to involuntary discharge.
In so ruling, the court finds that the circumstances giving rise to a plaintiff’s departure must be so
objectively difficult or intolerable that the employee has no other option but to resign. Cf.
Christie v. San Miguel County School Dist. R-2(J), 759 P. 2d 779, 782 (Colo. 1988).
This holding, however, does not resolve the question under Rule 50(a) of whether Mr.
Romero has presented sufficient evidence to allow the theory of constructive discharge to go to
the jury. Again, Defendant contends that Mr. Romero’s testimony that his working conditions
were not intolerable precludes a finding that he was forced to leave. Plaintiff argues that it
would be sufficient for a constructive discharge theory for him to have reasonably believed he
was fired, even if the overall conditions were not intolerable. The court finds that neither
construction is precisely on point, and notes that the case law discussing constructive discharge
does not indicate that a finding of intolerable circumstances requires a precise temporal scope or
certain number of instances of offensive conduct. And, in considering whether the evidence
presented during trial can support a theory of constructive discharge so as to defeat a Rule 50(a)
motion, the court finds that it must evaluate the record as a whole and in a light most favorable to
Plaintiff as the non-moving party.
Thus, the court has considered all relevant evidence, both direct and circumstantial, and
applied the foregoing principles and standards of analysis to the existing evidentiary record. The
undersigned concludes that there is sufficient evidence for a jury to find that Mr. Romero
suffered an involuntarily separation from his position. The supporting evidence includes, but is
not limited to, Plaintiff’s own testimony that he was given a choice by Mr. Stevison to either sign
the 302 Form, or to “pack his sh** and go.” As discussed above, Mr. Vigil testified that he
perceived that Mr. Romero had a choice to sign the 302 or be fired. There is evidence from Mr.

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Romero, Mr. Vigil, and Mr. Petz that Mr. Stevison called Mr. Romero “lazy,” or accused him of
lacking a certain work ethic. The record also includes evidence that, when Mr. Stevison called
Mr. Romero “lazy,” Mr. Romero opined that Mr. Stevison must not need him as a worker, and
Mr. Stevison said, “you’re right, I don’t need you.” There is also evidence in the record that all
of the participants of the December 27, 2012 meeting ultimately agreed that Mr. Romero was, in
fact, not “lazy,” and that he was known to be a hard worker. Indeed Mr. Petz, Plaintiff’s direct
supervisor, described Plaintiff as the best motor man he had worked with, both in terms of
mechanical skills and work ethic. This court finds that a reasonably jury could conclude that a
supervisor’s unjustified criticism or accusation that an employee is “lazy,” coupled with the
supervisor’s use of profanity and followed by the supervisor’s agreement or instruction that the
employee should “go,” could constitute the kind of intolerable working conditions necessary to
find that the employee involuntarily left his job.
In so finding, this court makes two separate observations. First, the four individuals who
were present during the meeting gave varying accounts of what occurred and what was said, but
credibility determinations are not for the court to make. Shaw v. AAA Eng'g. & Drafting, 213
F.3d 519, 529 (10th Cir. 2000). Judgment as a matter of law upon a Rule 50(a) motion is only
warranted if the evidence permits only one rational conclusion. Crumpacker v. Kan. Dep't of
Human Res., 474 F.3d 747, 751 (10th Cir. 2007). Second, state courts outside of Colorado that
have considered whether a plaintiff adequately established constructive discharge based on
similar facts (albeit in different contexts) have reached different conclusions regarding whether
discharge has occurred.

See e.g. Finstad v. Montana Power Co., 241 Mont. 10 (1990)

(overturning a jury verdict and holding that an employee’s refusal to agree to a transfer, and
subsequent exit after being asked to turn in his keys and vacate the office, did not amount to

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actual or constructive discharge); Tabor v. Gatson, 533 S.E.2d 356, 358 (W. Va. 2000)
(reviewing an unemployment proceeding and holding that “[i]n light of the fact that the employer
made remarks which reasonably have been construed as meaning that the appellant had been
fired, that the appellant testified that he had been fired, and that the employer suggested that the
appellant had misunderstood what was meant when the remarks were made,” a liberal reading of
the evidence allowed the appellant to legitimately conclude that he had been fired). The lack of
uniformity in these holdings suggests to the court that the record contains sufficient facts, when
viewed in the light most favorable to Plaintiff, to submit the issue of constructive discharge to
the jury.
The court notes that these rulings do not affect Plaintiff’s burden of establishing his claim
by a preponderance of the evidence, including but not limited to the element of the claim for
wrongful discharge in violation of public policy that necessarily requires Plaintiff to establish a
causal connection between any involuntary separation and his exercise of rights under the
Worker’s Compensation Act. The court found on the record on August 17, 2017, that there was
sufficient evidence for that issue to go to the jury. Accordingly, Defendant is not entitled to
judgment as a matter of law.
CONCLUSION
For the reasons stated herein and on the record on August 17, 2017, IT IS ORDERED
that Defendant’s Motions for Judgment as a Matter of Law under Fed. R. Civ. P. 50(a)(1),
brought first at the close of Plaintiff’s evidence and then at the close of all evidence, are
DENIED.

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DATED: August 22, 2017

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

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