F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
November 9, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
EVERETT YOUNG,
Plaintiff-Appellant,
v.
No. 05-1378
DILLON COMPANIES, INC., a/k/a
KING SOOPERS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 04-CV-0590-ZLW-MJW)
Andrew T. Brake, (Lee T. Judd on the briefs) Andrew T. Brake, P.C., Englewood,
Colorado, for Plaintiff-Appellant.
William A. Wright, Sherman & Howard L.L.C., Denver, Colorado (Raymond M. Deeny,
Sherman & Howard L.L.C., Colorado Springs, Colorado, with him on the brief), for
Defendant-Appellee.
Before LUCERO, O’BRIEN, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.
Everett Young seeks damages from his former employer, Dillon Companies, Inc.
(“Dillon”), alleging that his discharge violated Title VII, was inconsistent with the
parties’ implied contract terms, and ran afoul of the doctrine of promissory estoppel.
Finding that Mr. Young failed to identify a triable issue, the district court granted
summary judgment for Dillon on all counts. Our review confirms that, on the limited
record developed by plaintiff during discovery, entry of summary judgment was
appropriate.
I.
From August 2001 through January 2003, Mr. Young worked as a retail
investigator in various of Dillon’s King Soopers grocery stores in Colorado. At the time
Mr. Young accepted the job with Dillon, he received (and signed for) a personnel manual.
Pertinently for our immediate purposes, the manual provided that “[a]ll time card, time
clock, or time and attendance entries must be accurately completed and reflect the true
hours worked,” and that “[r]ecording time on your time card, time clocks, or time and
attendance for work not performed will be considered in violation of this policy, leading
to disciplinary actions up to and including termination.” See Appellant’s App. at 123,
124. Upon taking the job, Mr. Young also received training during the course of which,
he asserts, he was instructed that “just sleeping on the job [would lead to] immediate
termination.” See id. at 91 [275:23-276:4].
On January 14, 2003, after nearly a year and a half of service as an investigator
policing those who would steal from Dillon’s grocery stores, Dillon fired Mr. Young on
the putative ground that he had engaged in “theft of time,” or seeking pay for hours not
actually worked. According to Dillon, security cameras revealed that, on January 11,
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2003, Mr. Young left more than two hours before his shift ended; failed to punch out
when he departed; and then, in Dillon’s so-called “transfer log” where employees record
their working hours every week, misrepresented that he had stayed until the end of his
shift. For his part, Mr. Young claims that he worked a full shift, innocently neglected to
punch out at the end of his shift, and returned to work later that night to punch out. Mr.
Young also asserts that he recorded the true time of his departure in the transfer log and
that, in any event, he was not sleeping on the job and therefore could not be properly
subjected to immediate termination.
As of January 11, Mr. Young was already under investigation by Dillon because of
a store manager’s allegation that Mr. Young abused telephone privileges during work
hours. As part of that investigation, Jon Lesley, Mr. Young’s supervisor, began to review
store security video recordings reflecting Mr. Young’s on-the-job conduct. Viewing a
recording from King Soopers Store Number 6 in Colorado Springs, where Mr. Young
was assigned to work on January 11, 2003, from 2 p.m. to 10:30 p.m., Mr. Lesley
observed that at 8:00 p.m., Mr. Young put on his coat, collected his briefcase, and left the
“camera room” where, as part of his job, he was watching security video feeds from
various locations around the store. The store’s video recordings show that Mr. Young
proceeded to leave the store and head into the parking lot. Video from the camera room
further confirms that Mr. Young did not return there before the end of his shift at 10:30
p.m.
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After viewing the video, Mr. Lesley consulted Mr. Young’s time keeping records.
Mr. Young was required to “punch out” at the close of every shift using an electronic
time card system. See Appellant’s App. at 55, 104 [70:13-16]. In addition, at the end of
each work week, Mr. Young was supposed to leave the store where he was working that
day fifteen minutes before the end of his shift, travel to his home store, and record the
hours he worked that week in the transfer log. See id. at 55, 74 [191:3-13]. Upon review,
Mr. Lesley found that, though January 11 represented the end of his work week, Mr.
Young did not fill out his transfer log at the close of his shift as directed. Instead, video
from Mr. Young’s home store showed that he appeared there at 5 a.m. the following day,
January 12, to complete his transfer log. In the log itself, Mr. Young represented that he
had worked until 10:30 p.m. the previous evening.
Mr. Lesley also consulted an administrative assistant at Mr. Young’s home store,
Tina Hammer, about Mr. Young’s electronic time card entries for January 11. Ms.
Hammer apparently reported that the electronic time card system did not return any
departure time for Mr. Young in the 10:30 p.m. “time slot.” See id. at 104-05
[72:21-73:6]. Mr. Lesley apparently took this to mean that Mr. Young did not punch out
at all on the evening of January 11.1
1
Mr. Young represents that Ms. Hammer showed the electronic time card reports
to Mr. Lesley, but the record citations he provides for this proposition fail to support this
assertion. See Appellant’s Br. at 11. The only pertinent record testimony suggests just
the opposite to be true – viz., while Mr. Lesley reviewed transfer log records, after
hearing from Ms. Hammer that she found no electronic time records for Mr. Young in the
10:30 p.m. “time slot,” he did not pursue the issue further. See Appellant’s App. at 104-
05 [72:8-73:22], 109-10 [100:20-101:8].
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Based on the facts he had before him – the video from Store 6, a review of Mr.
Young’s transfer log, video from his home store, and his consultation with Ms. Hammer
about the electronic time card records – Mr. Lesley concluded that Mr. Young had left
work early on January 11. Because store video feeds are “copied over” routinely, Mr.
Lesley proceeded to transfer for preservation onto a video tape what he considered to be
the relevant video reflecting Mr. Young’s conduct.2 Then, on January 14, 2003, Mr.
Lesley met with Mr. Young to discuss his findings. Mr. Young denied leaving early.
When told that video showed him leaving at 8 p.m., Mr. Young replied that this “was
impossible.” See id. at 75 [193:14-19]. Mr. Young asserted that he punched out on the
electronic time card system at the end of his shift, “which would have been 10:30.” See
id. at 74 [192:22-23].
Mr. Lesley was unpersuaded and reported his belief that Mr. Young had left work
early to his supervisor, Jerry Riblett, King Soopers’ Director of Security. It is undisputed
that Mr. Lesley further supplied Mr. Riblett with a faithful account of Mr. Young’s
version of the events of the evening in question. Mr. Riblett, in turn, reviewed the
materials provided by Mr. Lesley, including the recorded video and transfer log;
concurred with Mr. Lesley’s findings; and proceeded to discuss the matter with Stephanie
Bouknight, King Soopers’ Manager of Labor and Employee Relations. Together, Mr.
2
Mr. Young complains that Dillon should have retained additional video from the
night in question but does not argue intentional spoliation by Dillon; nor does he contend
that Dillon did anything other than follow its normal procedures with respect to the
preservation of such records.
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Riblett and Ms. Bouknight decided to terminate Mr. Young. Mr. Riblett conveyed the
decision to Mr. Lesley who, in turn, informed Mr. Young of his termination.
This lawsuit followed. In his complaint, Mr. Young, an African American, alleged
that he was fired because of his race and that Dillon either breached its contract with him
or acted in a manner that contravenes the doctrine of promissory estoppel. During the
course of discovery, Mr. Young received, among other things, electronic time card
records reflecting that, while he did not punch out at his appointed departure time of
10:30 p.m. as Ms. Hammer reported to Mr. Lesley, he did in fact punch out later, at 11:58
p.m. At his deposition, Mr. Young testified that he realized that he had forgotten to
punch out after he arrived home and returned to the store to do so. See Appellant’s App.
at 82 [230:23-231:7]. He also testified that, between 8 and 10:30 p.m., he walked inside
and outside of the store checking on the security of, among other things, certain gas tanks
stored behind the building. See id. at 75 [195:4-11], 82 [232:18-25]. Mr. Young,
however, apparently did not share either of these points with Mr. Lesley prior to his
termination, but instead told Mr. Lesley merely that he didn’t “recall exactly what time”
he had punched out and that he “punched out at whatever time my shift was to end, which
would have been 10:30.” Id. at 74 [192:21-23]; see also id. at 75 [195:25-196:3] (“[A]ll I
could tell [Mr. Lesley] was whatever time I punched out is when I left at the end of my
shift. We weren’t talking about propane tanks or going to cars or nothing else of that
nature.”).
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After a hearing on defendant’s motion for summary judgment, the district court
issued an oral ruling for defendant on all of Mr. Young’s claims against Dillon. With
respect to plaintiff’s discrimination claim under Title VII, 42 U.S.C. § 2000e, et seq., the
district court held that:
[T]he law is that the employer’s reasons do not have to be correct, they have to be
honestly believed and acted on in good faith. And in this case, we have a video
showing [Mr. Young] putting on his coat and leaving the place where he was
supposed to be at 8 o’clock. We have no indication, even though the video
continues, that he came back to that room. And all of this explanation about
checking propane and walking around the store was not adequately explained to
King Soopers initially when they asked him about leaving late. . . . [T]here is more
than adequate proffered testimony and reasons that defendant honestly believed
that he left early, lied about where he was, and if they did honestly believe, that is
sufficient.
See Appellant’s App. at 274-75. With respect to Mr. Young’s breach of contract claim,
the district court held that neither the employee manual nor the alleged statements during
training constituted an enforceable contract. Id. Finally, the district court dismissed Mr.
Young’s promissory estoppel claim “not only because [Mr. Young] has failed to identify
a policy in an employee manual that [Dillon] failed to follow, but because [Mr. Young]
could not have reasonably relied on the statement [allegedly made during] training that
the only terminable offense was sleeping on the job.” Id. at 276.
II.
We review the district court’s grant of summary judgment de novo. See Stover v.
Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004). Summary judgment is appropriate if
“the pleadings, depositions, answers to interrogatories, and admissions on file, together
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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 judgment as a matter of law.” Fed. R. Civ. P. 56(c).
In conducting our analysis, we view all of the facts in the light most favorable to the
non-movant and draw all reasonable inferences from the record in favor of the
non-moving party. See Stover, 382 F.3d at 1070.3
A.
Where, as here, a Title VII plaintiff relies on indirect or circumstantial evidence to
show discrimination, we examine the claim under the familiar burden-shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Kendrick v.
Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). Under McDonnell
Douglas, the plaintiff carries the initial burden of establishing a prima facie case of racial
discrimination. See Kendrick, 220 F.3d at 1226 (discussing McDonnell Douglas, 411
U.S. at 802-04). Once the plaintiff establishes a prima facie case, the burden shifts to the
employer to articulate some legitimate, non-discriminatory reason for the adverse
employment action. Id. If the defendant makes this showing, the burden then shifts back
to the plaintiff to show that the defendant’s proffered justification is pretextual. Id.
The parties agree that Mr. Young has made out a prima facie case of race
discrimination and that Dillon has put forth a legitimate, non-discriminatory reason for
3
The district court had jurisdiction over Mr. Young’s Title VII claims pursuant to
42 U.S.C. § 2000e, et seq., and 28 U.S.C. § 1331. With respect to his state law claims,
the complaint alleges facts sufficient to invoke diversity jurisdiction under 28 U.S.C.
§ 1332, as well as the exercise of supplemental jurisdiction under 28 U.S.C. § 1367. We
have jurisdiction over the appeal under 28 U.S.C. § 1291.
-8-
Mr. Young’s termination. See Appellant’s Br. at 25-29; Appellee’s Br. at 22-23. Thus,
all that remains before us is to decide whether a genuine issue of material fact exists as to
whether Dillon’s proffered reason for discharging Mr. Young was pretextual. That is to
say, we must determine whether there is evidence from which a reasonable fact finder
could conclude that Dillon fired Mr. Young on account of his race rather than, as Dillon
claims, because of his alleged attempt to get paid for hours not actually worked. To show
that the defendant’s proffered race-neutral reasons were actually a pretext for
discrimination, this Court has held that the plaintiff must demonstrate that the defendant’s
“proffered [race-neutral] reasons were so incoherent, weak, inconsistent, or contradictory
that a rational factfinder could conclude the reasons were unworthy of belief.” See
Stover, 382 F.3d at 1076. Mr. Young seeks to show pretext in a couple of different ways
meriting mention here.
1.
Mr. Young argues that he worked until the completion of his shift, that Dillon’s
assertion otherwise is false, and that Dillon’s racial animus can be inferred from the
falsity of its proffered race-neutral reason for the termination. The Supreme Court has
recognized that “[i]n appropriate circumstances, the trier of fact can reasonably infer from
the falsity of the explanation that the employer is dissembling to cover up a
discriminatory purpose.” See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
147 (2000). “Thus, a plaintiff’s prima facie case, combined with sufficient evidence to
find that the employer’s asserted justification is false, may permit the trier of fact to
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conclude that the employer unlawfully discriminated.” Id. at 148 (emphases added). But
the nature and quantum of plaintiff’s proof is key, for the Supreme Court has also
explained that evidence about the falsity of an employer’s proffered race-neutral
explanation for termination will not “always be adequate to sustain . . . liability.” Id. at
148 (emphasis in original).
Discussing the quantum of evidence required by Reeves, this Court has held that,
“[i]n drawing [a Reeves-type] inference, the factfinder must be able to conclude, based on
a preponderance of the evidence, that discrimination was a determinative factor in the
employer’s actions–simply disbelieving the employer is insufficient.” Miller v. Eby
Realty Group LLC, 396 F.3d 1105, 1111 (10th Cir. 2005) (emphasis added). This Court
has further explained, post-Reeves, that “[t]he relevant inquiry is not whether the
employer’s proffered reasons were wise, fair or correct, but whether it honestly believed
those reasons and acted in good faith upon those beliefs.” Rivera v. City and County of
Denver, 365 F.3d 912, 924-25 (10th Cir. 2004) (internal quotation marks and alteration
omitted); see also Kendrick, 220 F.3d at 1231 (“[A] challenge of pretext requires us to
look at the facts as they appear to the person making the decision to terminate plaintiff.”).
Thus, the relevant “falsity” inquiry is whether the employer’s stated reasons were held in
good faith at the time of the discharge, even if they later prove to be untrue, or whether
plaintiff can show that the employer’s explanation was so weak, implausible, inconsistent
or incoherent that a reasonable fact finder could conclude that it was not an honestly held
belief but rather was subterfuge for discrimination. See Rivera, 365 F.3d at 924-25. The
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reason for this rule is plain: our role is to prevent intentional discriminatory hiring
practices, not to act as a “super personnel department,” second guessing employers’
honestly held (even if erroneous) business judgments. See Jones v. Barnhart, 349 F.3d
1260, 1267 (10th Cir. 2004).
As the district court observed, Mr. Young offers no evidence that Mr. Riblett and
Ms. Bouknight honestly believed anything other than that Mr. Young had left work early,
that he intentionally misrepresented his time in the transfer log, and that he sought to
obtain pay for work he never performed. Nor does Mr. Young dispute that Mr. Riblett
and Ms. Bouknight had before them video showing him leaving the store early, not
returning to the camera room, and failing to complete his transfer log at his home store at
the end of his shift as instructed.
Disputing none of this, Mr. Young emphasizes the electronic time card record
showing that he punched out at 11:58 p.m., as well as his deposition testimony explaining
that he was busy after 8 p.m. walking around inside and outside the store. This evidence
may very well cast doubt on Dillon’s conclusion that Mr. Young left early, but, as the
district court observed, there is no evidence that these facts were known to the relevant
decision makers within Dillon at the time they made their decision to fire Mr. Young. To
the contrary, the record indicates that the first time Mr. Riblett and Ms. Bouknight learned
of these claims was in the course of discovery in this litigation. The electronic time card
evidence unearthed during discovery was not presented to either decision maker before
they made the decision to terminate Mr. Young’s employment. Neither did Mr. Young
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come forward with an explanation of his whereabouts during the relevant time period
when he was interviewed by Mr. Lesley. Accordingly, while evidence amassed during
discovery may well suggest that Dillon’s beliefs about Mr. Young were wrong, they do
not suggest those beliefs were held in bad faith.
Nor are we pointed to facts suggesting that relevant evidence was deliberately
suppressed from the decision makers or ignored in order to further a discriminatory
purpose. It is undisputed that Mr. Lesley reviewed video and the transfer logs; inquired
with Ms. Hammer about the content of Mr. Young’s electronic time card records; passed
along her finding that there was no indication that Mr. Young punched out in the 10:30
p.m. “time slot”; offered Mr. Young a chance to respond to the facts as Mr. Lesley
understood them; and accurately reported his findings and Mr. Young’s responses to Mr.
Riblett and Ms. Bouknight. While in hindsight perhaps more might have been done, we
are given no reason on the record before us to conclude that the investigation’s limits
were the result of an improper racial animus.
The facts before us are very much like those we faced in Kendrick. There the
plaintiff was discharged for insubordination, including allegedly pushing a supervisor.
See Kendrick, 220 F.3d at 1224. For the purpose of ruling on the defendant’s motion for
summary judgment, we assumed that the plaintiff’s statement that he did not push his
supervisor was true. Id. at 1231. But the evidence also showed that the decision maker
believed – based on another employee’s report – that the plaintiff had, in fact, pushed his
supervisor. Id. at 1232. And we found no evidentiary basis suggesting that the decision
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maker came to this belief in bad faith. Id. at 1231-32. As a result, while the decision
maker’s conclusion about the plaintiff’s conduct may have been wrong, we saw no basis
on which a reasonable fact finder could have found that it was not honestly held. Id. We
find ourselves in much the same, if difficult, position in this case.
Mr. Young argues that Plotke v. White, 405 F.3d 1092 (10th Cir. 2005), held that
pretext is sufficiently shown for summary judgment purposes whenever a plaintiff
demonstrates that the “true facts” associated with a termination differ from what the
employer honestly believed to be the case. Nothing in our panel opinion in Plotke,
however, purports to (or could) reverse our prior rulings in Kendrick and Rivera requiring
us to look to the facts as they appeared to the decision maker. Rather, we simply held in
Plotke that the plaintiff there had succeeded in presenting sufficient facts such that a
reasonable fact finder could conclude that the decision maker’s proffered good faith
reason for termination was spurious, given the facts known to the decision maker at the
time. See Plotke, 405 F.3d at 1103-08. In aid of that conclusion, we noted that the
defendant’s proffered reason for termination was generated only after the termination, a
factor that we have long held significant in assessing claims of pretext, id. at 1103, but
one that simply is not present here. We also pointed to evidence suggesting, inter alia,
that the defendant fabricated documentation relating to the termination and failed to
follow its own written termination procedures, and that other senior supervisors employed
by defendant believed there was no evidence of misconduct by the plaintiff. Id. at 1103-
08. Again, no evidence of this kind – evidence bearing directly on whether the defendant
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authorized a termination in good faith or instead sought to pursue a discriminatory
purpose through subterfuge – exists in the record before us.
2.
Mr. Young next argues that pretext can be inferred because Mr. Lesley is allegedly
biased against African Americans. In support of this claim, Mr. Young alleges that Mr.
Lesley has made certain statements that, we agree, evince a deep and repugnant racial
animus. With one exception we shall discuss shortly, however, Mr. Young’s assertions
do not concern statements he personally heard Mr. Lesley make. Rather, they concern
statements Mr. Lesley allegedly made to other employees and which were subsequently
conveyed, second-hand, to Mr. Young. That is, Mr. Young’s testimony rests on hearsay.
Had counsel secured sworn statements or testimony from those employees who allegedly
heard Mr. Lesley’s remarks first-hand, this case might be in a very different posture. As
it is, however, we do not have direct testimony from the individuals to whom Mr. Lesley
allegedly made racist remarks; the defendant has lodged a hearsay objection to the
admission or consideration of these statements; and Mr. Young has pointed us to no
applicable exception to the hearsay rule. We are thus required to abide our precedent and
refrain from considering these matters on summary judgment. Starr v. Pearle Vision,
Inc., 54 F.3d 1548, 1555 (10th Cir. 1995) (“Today, we align ourselves with this line of
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authority and hold that Rule 56 precludes the use of inadmissible hearsay testimony in
depositions submitted in support of, or in opposition to, summary judgment.”).4
The single racial epithet for which Mr. Young is able to provide first-hand
testimony concerns an episode when Mr. Lesley allegedly referred to an African
American store manager as a “monkey.” Dillon does not dispute that such a remark,
made in the context alleged, is a derogatory racial epithet. Instead, Dillon argues that,
even if a discriminatory bias is proven with respect to one of defendant’s employees,
there must be some evidence in the record suggesting that the plaintiff’s termination at
issue was infected by such bias; under this test, Dillon adds, Mr. Young’s claim fails
because he has not pointed to any evidence in the record suggesting that Mr. Lesley’s
alleged animus affected Mr. Young’s review and termination.
Like the district court, we feel constrained by our precedent to agree. In Rea v.
Martin Marietta Corp., 29 F.3d 1450 (10th Cir. 1994), this Court expressly held that a
plaintiff who fails to show any connection between her supervisor’s discriminatory
comments about another employee and her own termination, without more, fails to satisfy
the burden imposed by Congress under Title VII of proving that the adverse action was
caused by unlawful discriminatory animus. Id. at 1457; see also English v. Colo. Dep’t of
Corr., 248 F.3d 1002, 1010 (10th Cir. 2001). In order to state a claim under Title VII, we
4
Mr. Young also cites as evidence of racism Mr. Lesley’s investigative
techniques, such as rifling through his trash can and smelling his coffee cup (ostensibly
for alcohol). But Mr. Young fails to point us to evidence suggesting that Mr. Lesley
subjected similarly situated non-minority employees to any different (albeit zealous)
treatment.
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have repeatedly explained that “the plaintiff must demonstrate a nexus between the
allegedly discriminatory statements and the defendant’s decision to terminate her.” Rea,
29 F.3d at 1457. And, to demonstrate such a causal nexus, we have held that the plaintiff
must show that “the allegedly discriminatory comments were directed at [her], her
position, or the defendant’s policy which resulted in the adverse action taken against the
plaintiff.” Id.; see also English, 248 F.3d at 1010.
To be sure, we have recognized that a racially biased investigator can issue reports
and recommendations influenced by his or her bias and thereby cause decision makers
who rely on those reports to fire an employee unlawfully – a situation in which the biased
investigator uses the supervisors as a cat’s paw to effect his or her own biased designs.
See EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 487 (10th Cir.
2006); English, 248 F.3d at 1011; Kendrick, 220 F.3d at 1231. In order to succeed under
such a theory, however, a plaintiff must show that the allegedly biased investigator’s
discriminatory reports, recommendation, or other actions were the proximate cause of the
adverse employment action. See BCI, 450 F.3d at 487-88. Thus, we have held that an
unbiased supervisor can break the causal chain by conducting an “independent
investigation” of the allegations against an employee. See id. at 488. Here, we cannot
find the requisite causation given that Mr. Lesley merely conducted an investigation but
made no recommendation to the decision makers or otherwise participated in the decision
to terminate Mr. Young; he interviewed Mr. Young and transmitted Mr. Young’s version
of events to his superiors; and the relevant decision makers – who are not alleged to
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harbor any racial animus – independently reviewed the video and timekeeping records for
themselves before making their termination decision.
B.
It is undisputed that Mr. Young was hired for an indefinite period of time and,
thus, is an “at-will” employee under Colorado law, someone whose employment may be
terminated lawfully by either party without reason or notice. See Continental Air Lines,
Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987). Nonetheless, in addition to his Title VII
claim, Mr. Young asserts that he was entitled as a matter of contract law or, alternatively,
under the doctrine of promissory estoppel, to certain warnings prior to his termination.5
In Evenson v. Colorado Farm Bureau Mutual Insurance Co., 879 P.2d 402, 408-
09 (Colo. Ct. App. 1993), the Colorado Court of Appeals recognized that statements
made to employees (there in an employee manual) prescribing when and how an
employee may be terminated are, under certain circumstances, enforceable as a matter of
implied contract even with respect to at-will employees. To ensure fairness and
predictability in the law of contract, however, Evenson imposes strict limits on when
Colorado courts will trump the parties’ express agreement and imply additional terms
between them. Among other things, the employer’s conduct must be understood as: (a)
conveying a willingness to be bound by the additional terms at issue; and (b) justifying
the employee in thinking that his or her initial or continued employment would constitute
5
The parties agree that Mr. Young’s common law claims are governed by
Colorado law. See Appellant’s Br. at 14; Appellee’s Br. at 11-19.
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an acceptance of, and consideration for, the terms at issue. Id. at 409; see also Keenan,
731 P.2d at 711.
To state a claim for promissory estoppel, the Colorado Supreme Court has held
that an employee must “demonstrate that the employer should reasonably have expected
the employee to consider [its offer to the employee to be] a commitment . . . to follow the
termination procedures, that the employee reasonably relied on the termination
procedures to his detriment, and that injustice can be avoided only by enforcement of the
termination procedures.” Keenan, 731 P.2d at 712. The employee must also show that
the employer’s promise was “sufficiently specific so that the judiciary can understand the
obligation assumed and enforce the promise according to its terms.” Soderlun v. Pub.
Serv. Co. of Colo., 944 P.2d 616, 620 (Colo. Ct. App. 1997). If, however, a statement by
an employer is “merely a description of the employer’s present policies . . . it is neither a
promise nor a statement that could reasonably be relied upon as a commitment.” Id.;
accord George v. Ute Water Conservancy Dist., 950 P.2d 1195, 1199 (Colo. Ct. App.
1997).
Mr. Young claims he can satisfy the elements for implied contract or promissory
estoppel by virtue of three pieces of evidence. As the district court concluded, however,
none suffices as a matter of law.
First, Mr. Young points us to Ms. Bouknight’s deposition testimony as Dillon’s
corporate representative. There, Ms. Bouknight explained her understanding that an
employee who innocently fails to clock out “probably” will not be terminated for a first
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offense. See Appellant’s App. at 134 [42:2-11]. But we have no indication that the
substance of Ms. Bouknight’s after-the-fact deposition testimony was ever conveyed to
Mr. Young during the course of his employment. Without proof on this score, we cannot
treat these terms as having been impliedly conveyed and accepted for consideration by
the parties for purposes of an implied contract or reasonably relied upon for purposes of
promissory estoppel.
Even assuming that Ms. Bouknight’s after-the-fact deposition testimony about her
beliefs and understandings might alone provide the basis for recovery under a breach of
implied contract or promissory estoppel theory, Mr. Young relies only on a snippet of her
testimony. He fails to note that Ms. Bouknight also specifically testified that there is no
mandatory progressive discipline system for intentional time keeping violations, and
termination follows immediately whenever the evidence suggests that an employee fails
to clock out with an intent to obtain pay for work never performed. See Appellant’s App.
at 189 [34:5-35:17] (noting that for intentional infractions of the time keeping policy,
“[t]here is no progressive discipline” and “[if] you steal from the company, you get
terminated from the company”). Thus, there is no indication that Dillon had done
anything to modify the at-will relationship with Mr. Young, at least with respect to an
intentional effort to cheat the time keeping system.
Second, Mr. Young points us to a statement allegedly made by an unidentified
Dillon trainer indicating that, rather than being fired immediately for initial violations of
the terms of employment outlined in the Dillon training manual, “you get written up,” and
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that the only basis for immediate termination is “sleeping on the job.” See Appellant’s
App. at 91 [275:23-276:4]. But the employment manual provided to Mr. Young
specifically states that the “failure to follow the[] policies and procedures [contained in
the manual] may result in disciplinary action up to and including termination, which may
include discharge on the first offense.” See id. at 119 (emphasis added). The manual also
outlines the timekeeping procedures and adds that “recording time on your time card,
time clocks, or time and attendance for work not performed will be considered in
violation of this policy, leading to disciplinary actions up to and including termination.”
Id. at 124. Mr. Young points us to no evidence suggesting that Dillon conveyed to him an
intent to be bound by the trainer’s alleged statements contradicting its policy manual, nor
is there any evidentiary basis for us to find that such statements, if made, were made in
such a way as to justify Mr. Young in thinking that they overrode the company’s policy
manual and that his employment constituted acceptance of the additional terms. See
Keenan, 731 P.2d at 711; Evenson, 879 P.2d at 408-09. Indeed, the evidence on this
score is very much to the contrary: Mr. Young conceded in his own deposition that it was
his clear understanding that the intentional falsification of time records was an offense
that would lead to immediate termination by Dillon. See Appellant’s App. at 85 [242:2-
6].
Third, Mr. Young points us to a putative admission by Mr. Lesley during his
deposition that he “failed to conduct a complete investigation.” See Appellant’s Br. at 22.
In fact, however, Mr. Lesley only conceded that, had he seen Mr. Young’s time cards for
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himself (rather than rely on Ms. Hammer’s description of them) and noticed that Mr.
Young clocked out at 11:58 p.m., he “probably would have done a more in-depth
investigation.” See Appellant’s App. at 109-110 [100:20-101:1]. As with Ms.
Bouknight’s testimony, we have no evidence suggesting that Dillon ever conveyed
anything to Mr. Young during the course of his employment regarding the nature and
scope of any investigation to which he would be entitled for alleged violations of the
company’s time keeping policies. In addition, Mr. Lesley’s deposition testimony merely
indicates what additional process might have been due if certain additional information
had been before him. It does not, by itself, suggest that Mr. Lesley was obliged by any
company procedure (let alone by terms communicated to Mr. Young during his
employment) to seek out that additional information on his own initiative – that is, to
review the electronic punch cards himself rather than (as he did) rely on Ms. Hammer’s
description of their contents. At most, Mr. Lesley’s testimony can be read as a candid
after-the-fact acknowledgment that he wished he had not relied on Ms. Hammer but had
instead reviewed the electronic punch card data for himself, not as indicating that
company policy before-the-fact promised a different or more thorough investigation.
While the result of the investigation into Mr. Young’s timekeeping practices may well
have been wrong, and while that would be something to be regretted by all involved, Mr.
Young has adduced no evidence in the record before us suggesting that he was entitled, as
a matter of implied contract or promissory estoppel, to an investigation any more
elaborate than the one he received.
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***
For the reasons discussed above, the district court’s entry of summary judgment in
favor of Dillon is AFFIRMED.
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