Freeman v. United Airlines

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 26 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk

GEORGE N. FREEMAN,

Plaintiff - Appellant,
No. 01-1397
v. D.C. No. 00-WY-1630-CB
(D. Colorado)
UNITED AIRLINES, a Delaware
corporation,

Defendant - Appellee.

ORDER AND JUDGMENT *

Before HENRY , BRORBY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument is not necessary to the disposition of this appeal.

See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

*
This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 In this diversity action, George Freeman appeals the district court’s grant of

summary judgment against him and in favor of United Airlines on his wrongful

discharge claims under Colorado law. Mr. Freeman alleges that United

terminated his employment in retaliation for his complaints about unlawful

activity and his filing of a workers’ compensation claim. In rejecting Mr.

Freeman’s claims on summary judgment, the district court reasoned that under

Colorado law, Mr. Freeman was required to prove that he had been actually or

constructively discharged and that no such discharge had occurred: United had

merely placed Mr. Freeman on medical leave. The court also concluded that Mr.

Freeman’s remaining on medical leave resulted from “his own intransigence.”

Aplt’s App. at 125 (Dist. Ct. Order, filed July 19, 2001, at 5).

We conclude that the district court properly granted summary judgment to

United. The record does not contain evidence supporting the inference that Mr.

Freeman was actually or constructively discharged or that United placed Mr.

Freeman on medical leave in retaliation for the filing of a workers’ compensation

claim or whistleblowing activity.

I. BACKGROUND

Mr. Freeman began working for United as a mechanic in 1987. According

to Mr. Freeman, he complained to his supervisor (Dave Szasbos) about the

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handling and storage of hazardous wastes on numerous occasions throughout 1997

and 1998. During this same period of time, Mr. Freeman also complained about

United’s recycling of freon canisters, in violation of Department of

Transportation regulations, and about lax security procedures at United gates, in

violation of Federal Aviation Administration laws and regulations. Mr. Freeman

alleged that his supervisor did not respond to these complaints and that he was

subject to harassment and ridicule by coworkers because he had raised these

concerns.

In August 1998, Mr. Freeman suffered a shoulder injury and filed a claim

for workers’ compensation. Although United placed him on light duty status, Mr.

Freeman maintained, his supervisor continued to assign a normal workload for

about a month, in violation of restrictions recommended by a physician.

Additionally, Mr. Freeman asserted, United did not allow him to obtain physical

therapy during working hours.

On January 15, 1999, at 4:00 a.m., Mr. Freeman telephoned his union

representative (Dave Kerns) and left a message expressing his concerns about

working at United. Later that morning, Mr. Freeman spoke with Mr. Kerns about

these issues. At some point in the conversation, Mr. Freeman stated that he

“didn’t want anyone to get hurt.” Aplee’s App at 171. Mr. Freeman also

suggested that he might resign.

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 In light of that conversation, Mr. Kerns became concerned about Mr.

Freeman’s psychological state. He conferred with United management and

requested that the company suspend Mr Freeman from work. United did so,

referring Mr. Freeman to the company’s Employee Assistance Program (EAP). In

February and March, Mr. Freeman met with an EAP counselor. On March 25,

1999, the counselor concluded that Mr. Freeman was able to perform his regular

duties.

In spite of this recommendation, United management and several of Mr.

Freeman’s coworkers continued to have concerns about Mr. Freeman’s fitness for

work. At the request of Mr. Freeman’s supervisor (David Szabos), two coworkers

(Henry Ferne and Kenneth Dresel) prepared written statements.

Mr. Ferne reported that Mr. Freeman continually engaged in “abusive and

intimidating behavior,” Aplee’s App. at 72, had admitted to being an alcoholic,

had made suggestive remarks about Mr. Ferne’s daughters, and had had fits of

anger in the break room. Additionally, Mr. Ferne reported that he had witnessed

Mr. Freeman hit another mechanic because that mechanic had jokingly poked Mr.

Freeman in the ribs. On this occasion, Mr. Freeman apparently stated that he

“was jumpy enough without other people fucking with him.” Id. Finally, Mr.

Ferne reported the following incident:

[Mr. Freeman] asked [me] back into the Fire Pump Room
and tried to hand me a condom. I asked him what this was

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 and he said he wanted a load of semen from me. I was
shocked and embarrassed. I asked him why[. H]e said I
think you know why. So I asked him if he was telling me
he was a “homosexual.” He said, “No, I think you know
better than that, Hank.” Like I should understand why he
needed my semen. I was afraid at this point. I asked him
“why do you want my semen?” He told me that he needed
to “reprogram his brain” to gain a “higher understanding
of us.” He said these “voices in my head” were telling him
to take the semen and “put it up his butt” to “reprogram
his brain.” He said it was like rebooting a computer.

Id. at 72-73. Mr. Ferne concluded: “I don’t want to work around this [g]uy. I

feel he is possibly violent, certainly a danger to himself as well as others.” Id. at

74-75.

In his written statement, the second coworker, Mr. Dresel (a building

maintenance lead mechanic) reported that, with one exception, the members of his

group had refused to work with Mr. Freeman. Mr. Dresel also reported a tense

confrontation in which Mr. Freeman refused to answer questions about replacing

equipment and then accused Mr. Dresel of splashing unsanitized water on him.

Mr. Dresel said he thought that Mr. Freeman was paranoid and that he was “in

such a bad state of mind [that] I thought he may have snapped.” Id. at 84.

Based on this information, Dr. Jack Rubino, a United Airlines medical

officer, referred Mr. Freeman to Dr. John Nicoletti, an independent psychologist.

Dr. Nicoletti conducted an evaluation and reached the following conclusions:

Mr. Freeman . . . had a significant elevation on the
Paranoia Scale to the point of indicating a significant

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thought disorder, ideas of reference and mistaken beliefs.
He is vengeful and brooding [and] there may be a tendency
for him to act upon his delusions. Mr. Freeman is angry
and resentful. He tends to display blame and criticism on
other people. He is rigid, stubborn and hostile. Mr.
Freeman may have a tendency to misinterpret social
situations. He has unusual beliefs, bizarre thoughts and is
withdrawn and alienated. Mr. Freeman’s scores on the
Contents Scale also indicated significant elevations in the
areas of anxiety and depression. The testing also indicates
bizarre mentation. This elevation indicates a psychotic
thought process. There may be a tendency for him to
report auditory or visual hallucinations. His thoughts are
strange or peculiar. He may also have paranoid ideation.
Mr. Freeman also had elevations in anger, cynicism and
antisocial practices. He appears to be experiencing both
family and work conflict.
Mr. Freeman’s scores on the Supplemental Scales
also indicate addictive personal characteristics, alcohol
addiction admission and alcohol addiction potential.

....

The combined results of the psychological
interview, psychological testing and collateral data
indicate an individual who falls in the Moderate to Severe
category of risk. Specifically, Mr. Freeman has a
significant number of personality traits and behavior
patterns associated with violence. . . .

It is reasonable to assume that if Mr. Freeman
returns to the same work environment in his current
emotional state, without any significant interventions, his
impulse control problems will either continue or
accelerate. In addition, because of the concerns voiced by
his coworkers, placing him back in the same work
environment would appear to be very disruptive [and]
would probably lead to more fear on the part of the
employees and coworkers along with providing Mr.

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 Freeman with a potential environment for encountering a
trigger event.

Id. at 89-91 (emphasis omitted). Dr. Nicoletti recommended that Mr. Freeman

undergo regular and ongoing psychotherapy and anger management and that he be

referred to an alcohol treatment program. Dr. Rubino then informed Mr. Freeman

that he could return to work if he complied with Dr. Nicoletti’s recommendations.

Subsequently, on May 23, 1999, United sent Mr. Freeman a letter informing

him that he would be placed on extended illness status (EIS) pursuant to the

provisions of article XV of United’s collective bargaining agreement with its

mechanics. 1 The letter stated that Mr. Freeman might “be required to submit to

1
Article XV provides in part that:

An employee who exhausts his sick leave or
who is off work because of illness or injury
longer than sixteen (16) days shall be
placed on extended illness status up to a
maximum of two (2) years from the first
day placed on extended illness status. . . .

B. While on extended illness status, the
employee:
1. shall retain and continue to accrue
seniority.
2. may continue insurance coverages
according to the provisions of the
Company’s insurance plan.
3. may be granted free or reduced rate
transportation privileges . . . upon request
to his supervisor.
(continued...)

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physical examinations at Company request or to furnish medical reports of you[r]

current condition.” Id. at 96.

During May and June 1999, Mr. Freeman obtained counseling from Dr.

Warren K. Boos. He had seven sessions with Dr. Boos, and, in August 1999, Dr.

Boos provided United with a clinical narrative.

On September 16, 1999, United requested an additional clinical narrative

report. United informed Mr. Freeman that a failure to comply with this request

could result in revocation of EIS status and termination of his employment.

1
(...continued)
4. may be required to submit to
physical examinations at Company request
or to furnish medical reports of his current
physical condition. . . .
5. shall not accrue or be entitled to
any other employee benefits, such as
vacation accrual, sick leave accrual, holiday
pay et cetera, except that an employee who
is off work because of occupational illness
or injury will continue to accrue vacation
credit.

C. If while on extended illness status, the
employee accepts employment elsewhere
without prior approval by the Company and
the Union, he shall be deemed to have
severed his employee relationship with the
Company.

Aplee’s App. at 31-32.

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 In spite of United’s request, Mr. Freeman did not submit an additional

clinical narrative report. In deposition testimony he explained:

I did tell [United] that I would keep them posted . . . . I
didn’t, though. I just gave up on therapy and realized that
it didn’t matter what I did, they weren’t going to let me go
back to work.

....

. . . I just sat down and took stock of all the things
I had done to try to comply with their concern of one
phone call eight months earlier. It seemed to me like I had
put a concerted effort into trying to resolve that issue, but
they had made up their minds that they weren’t going to let
me come back. They were going to stall me out
indefinitely.

Id. at 48.

Mr. Freeman filed the instant action against United in the district court on

April 15, 2000. Although he initially asserted a claim under the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, Mr. Freeman’s Second

Amended Complaint asserted only claims under Colorado law for: (1) retaliatory

discharge on the basis of his filing a workers’ compensation claim; (2) retaliatory

discharge on the basis of his whistleblowing activities (in violation of public

policy).

In a July 19, 2001 order, the district court granted summary judgment to

United on the grounds that Mr. Freeman had failed to prove that he had been

actually discharged. The court reasoned that, under Colorado law, “claims for

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wrongful discharge ipso facto require that the claimant be actually or

constructively discharged.” Aplt’s App. at 125 (Dist. Ct. Order, filed July 19,

2001, at 5). Here, the court reasoned, “[n]o such discharge occurred in this case,

merely medical leave.” As an alternative ground for the grant of summary

judgment to United, the district court stated that “[the fact that] Plaintiff has

remained on EIS is due to his own intransigence, and the Court declines to second

guess the recommendations of Defendant’s psychologist.” Id.

II. DISCUSSION

On appeal, Mr. Freeman argues that the district court erred in concluding

that Colorado law required him to prove an actual or constructive discharge in

order to prevail on his retaliation claims. Mr. Freeman’s argument is based on

two sources: (1) the Colorado Court of Appeals’s decision in Lathrop v.

Entenmann’s, Inc., 770 P.2d 1367, 1372-73 (Colo. Ct. App. 1989); and (2) the

rule adopted in many federal cases (under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e—2000e-17, and the ADA, for example) that employees

subject to “adverse employment actions” less severe than termination (e.g.,

demotion or transfer) may still bring claims based on alleged retaliation. The gist

of Mr. Freeman’s contention is that, even though leading Colorado cases refer to

the various plaintiff employees’ discharges, the rationale of these decisions

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(furthering important public policies by protecting employees who exercise their

rights) applies to actions that are less severe than discharge—such as his

placement on EIS.

Because the district court resolved the case on summary judgment, we

review its decision on this issue de novo, applying the same legal standard

employed by the district court pursuant to Rule 56(c) of the Federal Rules of Civil

Procedure. See Cent. Kan. Credit Union v. Mut. Guar. Corp., 102 F.3d 1097,

1102 (10th Cir. 1996). Summary judgment is appropriate if “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). We construe the evidence in the light most favorable to the nonmoving

party (here, the plaintiff Mr. Freeman). See Cent. Kan. Credit Union, 102 F.3d at

1102. In this diversity action, we apply the substantive law of Colorado. Sellers

v. Allstate Ins. Co., 82 F.3d 350, 352 (10th Cir. 1996).

Applying those standards, we are not persuaded by Mr. Freeman’s

argument. In reaching that conclusion we first review the Colorado law regarding

wrongful discharge and then turn to Mr. Freeman’s specific arguments regarding

the Colorado Court of Appeals’ decision in Lathrop and federal decisions

regarding “adverse employment actions” not involving termination.

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 A. Wrongful Discharge Claims Under Colorado Law

Under Colorado law, an at-will employee may assert a claim that he or she

has been terminated in violation of public policy. In order to prevail on such a

claim, the at-will employee must establish the following elements:

[1] that the employer directed the employee to perform an
illegal act as part of the employee’s work related duties or
prohibited the employee from performing a public duty or
exercising an important job-related right or privilege; [2]
that the action directed by the employer would violate a
specific statute relating to the public health, safety, or
welfare, or would undermine a clearly expressed public
policy relating to the employee’s basic responsibility as a
citizen or the employee's right or privilege as a worker;
and [3] that the employee was terminated as the result of
refusing to perform the act directed by the employer . . . .
[and] [4] that the employer was aware, or reasonably
should have been aware, that the employee’s refusal to
comply with the employer's order or directive was based
on the employee’s reasonable belief that the action ordered
by the employer was illegal, contrary to clearly expressed
statutory policy relating to the employee’s duty as a
citizen, or violative of the employee’s legal right or
privilege as a worker.

Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 109 (Colo. 1992) (emphasis

added).

Colorado courts have applied this framework to claims alleging retaliatory

discharge on the basis of the filing of a workers’ compensation claim. In Lathrop,

the court held that “since an employee is granted the specific right to apply for

and receive compensation under the [Workmen’s Compensation Act of Colorado,

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Col. Rev. Stat. §§ 8-40-101—8-66-112], an employer’s retaliation against such an

employee for his exercise of such right violates Colorado’s public policy.” 770 P.

2d at 1373. Thus, “the violation of such public policy provides the basis for a

common law claim by the employee to recover damages sustained by him as a

result of that violation.” Id.

Here, the district court applied this framework to reject Mr. Freeman’s

claims. Because Mr. Freeman remained on EIS, the court reasoned, he could not

establish one of the necessary elements, and United was thus entitled to judgment

as a matter of law.

B. Lathrop

In challenging the district court’s conclusion, Mr. Freeman relies on

Lathrop. There, he notes, the Colorado Court of Appeals reversed a lower court

decision dismissing a claim for workers’ compensation retaliation even though the

plaintiff had been placed on a “medical absence” rather than being formally fired.

Id. at 1368. Mr. Freeman maintains that his placement on EIS status is analogous

to the medical leave in Lathrop.

We disagree, for Mr. Freeman reads Lathrop much too broadly. In that

case, the plaintiff’s theory was that the “medical absence” constituted a

constructive discharge. See id. at 1369. He alleged that his employer had refused

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to allow him to return to work even though he had obtained permission from a

doctor to do so. Thus, Lathrop does not abandon the rule that, in order to assert a

wrongful discharge claim under Colorado law, an employee must assert at least a

constructive discharge.

Under Colorado law, the determination of whether an employer’s actions

constitute a constructive discharge depends upon whether a reasonable person

under the same or similar circumstances would view the working conditions as

intolerable. See Boulder Valley School Dist. R-2 v. Price, 805 P.2d 1085, 1088

(Colo. 1991), overruled in part on other grounds by, Community Hosp. v. Fail,

969 P.2d 667 (Colo. 1998). The subjective view of the individual employee is not

determinative. Id. Here, Mr. Freeman has not offered any evidence from which a

reasonable factfinder could conclude that he was constructively discharged. The

record indicates that Mr. Freeman had the right to come back to work if he

completed a course of psychotherapy and an alcohol treatment program and that

he retained seniority and other benefits. Although Mr. Freeman stated in his own

affidavit and deposition testimony that Dr. Nicolletti’s evaluation was biased and

unreliable, Mr. Freeman’s conclusory statements are insufficient to controvert Dr.

Nicoletti’s professional opinion. Moreover, aside from these conclusory

assertions, Mr. Freeman has failed to offer evidence indicating that the conditions

that United imposed on him while on EIS—obtaining regular and ongoing

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psychotherapy and anger management and participating in an alcohol treatment

program—would be viewed by a reasonable person as intolerable In fact, United

appears to have gone to great lengths to assist Mr. Freeman.

C. Adverse Employment Actions under Federal Law

Mr. Freeman also invokes federal decisions holding that an employee may

pursue a retaliation claim based on an adverse employment action less severe than

termination. In particular, he cites this circuit’s decision in Sanchez v. Denver

Public Schs., 164 F.3d 527, 532 (10th Cir. 1998). There, in discussing Title VII

and Age Discrimination in Employment Act claims, we explained that:

The Tenth Circuit liberally defines the phrase “adverse
employment action.” Such actions are not simply limited
to monetary losses in the form of wages or benefits.
Instead, we take a case-by-case approach, examining the
unique factors relevant to the situation at hand.
Nevertheless, we will not consider a mere inconvenience
or an alteration of job responsibilities to be an adverse
employment action.

Sanchez, 164 F.3d at 532 (citations and internal quotation marks omitted); see

also Petersen v. Utah Dep’t of Corrs., 301 F.3d 1182 (10th Cir. 2002) (discussing

what constitutes an adverse employment action under Title VII).

Sanchez and similar cases applying federal statutes are not controlling in

this diversity case, which is governed by Colorado law. Because Colorado courts

have not extended wrongful discharge actions based on violations of public policy

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to actions less severe than termination, we may not apply the broader “adverse

employment action” standard here. Moreover, as United has noted, the issue of

whether wrongful discharge actions should be available outside the termination

context involves important policy questions that, in a case governed by Colorado

law, would be inappropriate for this court to address in the first instance.

Compare Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 905 P.2d 559, 562 (Ariz. Ct.

App. 1995) (refusing to create the tort of wrongful failure-to-promote and stating

that “‘[r]ecognizing a retaliation tort for actions short of termination could subject

employers to torrents of unwarranted and vexatious suits filed by disgruntled

employees at every juncture in the employment process’”) (quoting Ludwig v.

C&A Wallcoverings, Inc., 960 F.2d 40, 43 (7th Cir. 1992))) with Brigham v.

Dillon Cos., 935 P.2d 1054, 1059 (Kan. 1997) (stating that “a new cause of action

[under Kansas law] for retaliatory demotion is a necessary and logical extension

of the cause of action for retaliatory discharge”). Finally, even under the case-by-

case approach of Sanchez, there are serious questions as to whether Mr.

Freeman’s EIS placement would constitute an “adverse employment action.”

D. Evidence of Retaliatory Motive

The district court’s grant of summary judgment to United may be affirmed

on an alternative ground: even if Colorado law did recognize retaliation claims

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based on adverse employment actions less severe than termination, and even if

United’s placement of Mr. Freeman on EIS status constituted such an adverse

employment action, the record still does not contain evidence from which a

factfinder could conclude that United acted with retaliatory intent.

As we have noted, United presented the report of Dr. Nicoletti and written

statements from two of Mr. Freeman’s coworkers. These materials establish that

United had legitimate concerns that, if Mr. Freeman was allowed to remain at

work, he would constitute a threat to his own safety and the safety of others.

In his response to United’s summary judgment motion, Mr. Freeman did

attempt to rebut United’s evidence on this point to some degree. He submitted his

own affidavit, in which he contended that Dr. Nicoletti was biased. Mr. Freeman

also noted that Dr. Nicoletti’s written report acknowledged that Dr. Nicoletti had

not validated certain factual information provided by Mr. Freeman and United

(e.g., his history of substance abuse and particular conflicts at work). Mr.

Freeman also noted that, in deposition testimony subsequent to their written

statements, his coworkers qualified their concerns about working with Mr.

Freeman. For example, Mr. Ferne explained that Mr. Freeman did not appear

inebriated on the job and that when Mr. Ferne submitted the written statement

explaining his concerns about Mr. Freeman, Mr. Ferne himself was “extremely

paranoid,” partly because he was going through a difficult divorce. Aplee’s App.

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at 151. Similarly, Mr. Dresel stated that his negative experiences with Mr.

Freeman were “rather limited.” Id. at 154.

In our view, the evidence submitted by Mr. Freeman is insufficient to

create controverted issues of material fact as to United’s motive in placing him on

EIS status. Mr. Freeman’s conclusory challenges to Dr. Nicoletti’s evaluation do

not undercut United’s contention that it acted reasonably in relying on the

psychologist’s expert opinion. Similarly, the coemployees’ downplaying of their

previous concerns about working with Mr. Freeman does not undercut the

conclusion that United management was motivated by a legitimate concern for

employee safety rather than by retaliation for whistleblowing activity or the filing

of a workers’ compensation claim. Thus, even if the Colorado wrongful

discharge cases could be applied outside the termination context, summary

judgment in favor United and against Mr. Freeman would still be warranted.

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 III. CONCLUSION

Accordingly, we AFFIRM the district court’s grant of summary judgment to

United and against Mr. Freeman. 2

Entered for the Court,

Robert H. Henry
Circuit Judge

2
In light of our disposition of this appeal, we deny United’s Motion to
Strike Appellant’s Appendix as moot.

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