Fuller v. Old Dominion Freight Line, Inc.
Filing
32
ORDER granting 18 Partial Motion to Dismiss by Judge R. Brooke Jackson on 6/12/17. (jdyne, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 17-cv-00080-RBJ
RODERICK I. FULLER,
Plaintiff,
v.
OLD DOMINION FREIGHT LINE, INC., a Virginia corporation, as known, doing business or
sometimes referred to as “Old Dominion,”
Defendant.
ORDER
This matter is before the Court on defendant Old Dominion Freight Line, Inc.’s (“OD”)
partial motion to dismiss plaintiff Roderick Fuller’s breach of contract claim [ECF No. 18]. For
the reasons below, the Court GRANTS that motion.
I. FACTS
Plaintiff Roderick Fuller is a former truck driver for OD. Pl.’s First Am. Compl., ECF
No. 17, at ¶¶5–6. He claims in this action that while employed by OD his coworkers and
managers harassed, humiliated, and ultimately retaliated against him because of his race. 1 See,
e.g., id. at ¶17. This harassment included an incident in April of 2009 where Mr. Fuller’s thensupervisor, Mr. Chris Silvas, allegedly pushed Mr. Fuller on a loading dock and directed a racial
epithet towards him. Id. at ¶9.
Mr. Fuller alleges that shortly after this incident occurred he reported his supervisor to
another manager, Mr. Alan Thorson. Id. Rather than believe Mr. Fuller, however, Mr. Thorson
1
Mr. Fuller is African-American. ECF No. 17 at ¶9.
1
accused plaintiff of lying about what had transpired. Id. Allegedly because of the company’s
belief that Mr. Fuller lied about Mr. Silvas’ conduct, OD fired Mr. Fuller shortly thereafter. Id.
Mr. Fuller’s hiatus from work did not last long. Allegedly after learning that Mr. Fuller
might file a claim against OD for racial discrimination, OD reached out to Mr. Fuller to offer
him his job back. Id. at ¶¶10–11. As part of its overture, OD management, including Mr.
Thorson, allegedly assured Mr. Fuller that the mistreatment he suffered while employed by OD
would not continue should he return. See id.at ¶14. OD employees also allegedly told Mr. Fuller
that he would be valued and treated as “family” if he came back and that the company promised
to treat Mr. Fuller in “good faith” and “fairly” going forward. Id. Finally, OD also fired Mr.
Silvas, Mr. Fuller’s former manager, apparently in an attempt to further persuade Mr. Fuller that
the company had changed its ways. Id.at ¶¶12–14.
Mr. Fuller subsequently accepted OD’s offer of reemployment. Id. at ¶15. However, for
all of the company’s supposed promises that it had changed, the racial harassment and
humiliation Mr. Fuller earlier experienced allegedly continued. See, e.g., id. at 16. For instance,
Mr. Fuller alleges that after returning to work several OD employees openly expressed their
opinion that Mr. Fuller had “played the race card” to get himself re-hired and their friend, Mr.
Silvas, fired. See id. at ¶13. Mr. Fuller’s new managers at OD also allegedly continued to harass
him by, for example, altering aspects of his employment such as by cutting his driving runs. Id.
at ¶17. Mr. Fuller claims he complained to management about this treatment in 2014–15. Id.
His complaints, however, allegedly fell on deaf ears. See id.
Thereafter, Mr. Fuller alleges that he continued to experience harassment until OD fired
him in late April 2016 because of supposedly minor damage to the mud flaps on his truck. See
id. at ¶¶51–57. It appears that defendant will argue that it fired Mr. Fuller for being involved in
2
an accident (damaging his truck’s mud flaps) that he subsequently failed to report. See id. at ¶¶
61–64, 74–75.
Procedural History
After he was fired Mr. Fuller brought suit against OD in Denver District Court on
December 7, 2016. ECF No. 1-1 (state court pleadings). In his initial complaint, Mr. Fuller
alleged two claims for relief. Id. First, a claim for breach of contract stemming from the
statements OD employees allegedly made to him in 2009 that he would be treated “fairly” and
“in good faith” if he returned to work—alleged “promises” that he claims were reiterated in
several of OD’s company employment documents. 2 Id. at 8–14 (¶¶42–80). Second, he brought
a claim for racial discrimination under the Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq., and the Colorado Anti-Discrimination Act, C.R.S. § 24-34-301, et seq. Id. at 14–
17 (¶¶81–103).
On January 10, 2017 OD removed Mr. Fuller’s lawsuit to this Court. Notice of Removal,
ECF No. 1. Plaintiff subsequently amended his complaint on March 22, 2017. ECF No. 17. In
his amended complaint plaintiff continues to assert the same two claims for relief. Id. Roughly
two weeks after plaintiff amended his complaint OD filed a partial motion to dismiss plaintiff’s
first claim for breach of contract. ECF No. 18. That motion is ripe for review and currently the
only motion pending before the Court with respect to this matter.
II. STANDARD OF REVIEW
To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
2
These documents included a “Code of Business Conduct,” bulletins posted around the workplace, and
work “handbook” supplements. See ECF No. 17 at ¶15.
3
(2007)). A plausible claim is a claim that “allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
While the Court must accept the well-pleaded allegations of the complaint as true and construe
them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th
Cir. 2002), conclusory allegations are not entitled to be presumed true, Iqbal, 556 U.S. at 681.
However, so long as the plaintiff offers sufficient factual allegations such that the right to relief
is raised above the speculative level, he has met the threshold pleading standard. See, e.g.,
Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
III. ANALYSIS
OD’s argument for dismissal is simple: OD employed Mr. Fuller “at-will,” and the
assurances Mr. Fuller alleges OD made to induce him to return to work are insufficiently definite
to create an implied contract of employment between the parties. ECF No. 18 at 4–8. In
response, Mr. Fuller appears to argue that his agreeing to return to work in April of 2009
established an employment contract with OD, and that the company’s contemporaneous and
subsequent assurances created a valid and enforceable express covenant of good faith and fair
dealing. 3 ECF No. 27 at 6–14. Mr. Fuller goes on to contend that he has sufficiently alleged OD
breached that covenant by firing him under the circumstances detailed above. See, e.g., id. at 5.
I see things the way OD does.
3
Mr. Fuller also tries to save his claim by construing his self-described breach of contract claim as one
for promissory estoppel. ECF No. 27 at 2, 15. Mr. Fuller, however, does not appear to have alleged a
claim for promissory estoppel in his amended complaint. Even if he did, such a claim would similarly be
dismissed because the assurances OD allegedly made to Mr. Fuller to induce him to return to work either
constitute vague promises that no reasonable person would rely on or amount to illusory and therefore
unenforceable promises to “follow the law” (i.e., Title VII). See Haynes v. Level 3 Commc’ns, LLC., 167
F. App’x 712, 715 (10th Cir. 2006) (unpublished) (recognizing that “[a]ssurances of fair treatment or
mere vague assurances are unenforceable” in the context of promissory estoppel claims under Colorado
law) (internal quotation marks and citations omitted); Evans v. Maytag Aircraft Corp., 16-CV-02264RBJ, 2017 WL 1437296, at *6 (D. Colo. Mar. 14, 2017) (“[A]ny promise by an employer to ‘follow the
law’ is illusory and unenforceable.”).
4
From Mr. Fuller’s amended complaint, it is clear that Mr. Fuller and OD did not have a
formal employment contract. Instead, Mr. Fuller was “hired . . . for an indefinite period of time”
which, under Colorado law, creates a presumption that he was an “at will employee, whose
employment may be terminated by either party without cause and without notice . . . .” Cont’l
Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987) (internal quotation marks and citations
omitted).
But, as defendant acknowledges, that is not the end of the story. One way Mr. Fuller
could overcome that presumption and sustain a claim for breach of contract based on his firing is
by establishing that OD created and subsequently breached an implied employment contract.
See, e.g., Orback v. Hewlett-Packard Co., 909 F. Supp. 804, 808 (D. Colo. 1995), aff’d, 97 F.3d
429 (10th Cir. 1996) (“An employer may be held liable for the discharge of an otherwise at-will
employee, however, where an implied contract arises out of company policy or employment
manuals[.]”). To do so, Mr. Fuller must sufficiently allege that OD made assurances or promises
to him that it intended to carry out, that he accepted, and that, importantly, could subsequently be
enforced. See id.
Typically, whether an employer’s promises and assurances rise to the level of an implied
contract is a question of fact reserved for the jury. Id. (citing Tuttle v. ANR Freight Sys., Inc.,
797 P.2d 825, 828 (Colo. App. 1990)). Nevertheless, this issue may be decided “as a matter of
law” and a breach of contract claim subsequently dismissed if the alleged statements by an
employer are deemed unenforceable because they constitute “nothing more than vague
assurances[.]” See Dupree v. United Parcel Serv., Inc., 956 F.2d 219, 222 (10th Cir. 1992)
(finding that statements in company documents to the effect of “We Treat Our People Fairly and
Without Favoritism” and that a company wishes to build a cohesive and working “partnership”
5
were too vague to constitute enforceable promises of future job security and therefore
insufficient to form an implied contract).
Such is the case here. Mr. Fuller alleges that OD made the following assurances to him
to induce him to return to work: (1) “that it would be trustworthy in its dealings with him;” (2)
“that it would treat him in good faith and fairly;” (3) “that it would honor and respect his
integrity and dignity;” (4) “that it would recognize him as an important and valuable asset;” (5)
“that it would communicate openly and honestly with him; and” (6) “that it would behave
ethically toward its him and ‘conduct its business affairs to the highest business conduct and
ethical standards possible.’” ECF No. 17 at ¶44.
Assuming OD actually made these statements as I must at this stage of the
litigation, these statements merely constitute vague and indefinite assurances. As such,
they are unenforceable and insufficient to create an implied contract under Colorado law.
See, e.g., Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1465 (10th Cir. 1994)
(“Defendant’s Credo merely includes general statements to the effect that it is committed
to ‘the dignity and privacy due all human beings’ and providing ‘a safe and healthy
workplace.’ Likewise, Defendant’s equal opportunity memorandum merely states the
company’s general commitment to affirmative action. Statements such as these are
merely ‘vague assurances,’ . . . and too indefinite to constitute a contractual offer which
would enable a court to determine whether a contract has been performed.”); Hoyt v.
Target Stores, Div. of Dayton Hudson Corp., 981 P.2d 188, 194 (Colo. App. 1998)
(“Because a vague assurance of fair and consistent treatment cannot form the basis of an
express covenant of good faith and fair dealing, and the statement here [(i.e., that Target
6
would treat its employees “fairly and in a consistent manner”)] constituted such a vague
assurance, we conclude as a matter of law that there was no underlying contract.”).
Mr. Fuller cannot therefore pursue a breach of contract claim arising out of his
termination because he was, at all times, an “at-will” employee of OD. See Cont’l Air
Lines, Inc., 731 P.2d at 711(“An employee who is hired in Colorado for an indefinite
period of time is an ‘at will employee,’ . . . whose termination does not give rise to a
cause of action.”).
What’s more, even adopting Mr. Fuller’s view of things that his breach of
contract claim is really one for breach of an express covenant of good faith and fair
dealing, dismissal would still be proper. A breach of express covenant claim, after all, is
a contract claim. See Lutfi v. Brighton Cmty. Hosp. Ass’n, 40 P.3d 51, 59 (Colo. App.
2001) (“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.”).
Thus, in order to bring such a cause of action, Mr. Fuller must sufficiently allege
the existence of an underlying contract to which these covenants could even apply. See
Decker v. Browning-Ferris Indus. of Colo., Inc., 931 P.2d 436, 443 (Colo. 1997)
(recognizing that “parties to a contract may as a part of their agreement enter into an
express covenant of good faith and fair dealing”) (emphasis added); Hoyt, 981 P.2d at
193 (pointing out the lower court followed such a requirement); see also Meeker v. Life
Care Ctrs of Am., Inc., 14-CV-02101-WYD-NYW, 2015 WL 5728787, at *2 (D. Colo.
Sept. 30, 2015) (explaining that vague assurances like those here “do not rise to the level
of a contract or support a claim for breach of the covenant of good faith and fair
dealing.”) (emphasis added).
7
As explained above, Mr. Fuller has not alleged that the parties had an express
contract. Nor do I find that one can be implied from the vague assurances OD allegedly
made to him to induce him to return to work. See supra. Accordingly, OD’s partial
motion to dismiss Mr. Fuller’s breach of contract claim is GRANTED.
ORDER
For the reasons above, the Court GRANTS defendant’s partial motion to dismiss [ECF
No. 18]. Plaintiff’s breach of contract claim is therefore dismissed with prejudice. The hearing
on this motion scheduled for August 22, 2017 at 10:00am is also VACATED.
DATED this 12th day of June, 2017.
BY THE COURT:
___________________________________
R. Brooke Jackson
United States District Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?