Chapter 12 - § 12.5 • OTHER UNRESOLVED ISSUES

• Jurisdiction: Colorado

§ 12.5 • OTHER UNRESOLVED ISSUES

§ 12.5.1—Preemption — Is There A Common Law Tort If The Employee Has Another Remedy For Wrongful Discharge?

Employers frequently seek to dismiss public policy claims where the statute used by the plaintiff already has a remedy for wrongful discharge. Many Colorado courts have been receptive to this argument, holding that the statutory remedy is the exclusive remedy. See, e.g., Krauss v. Catholic Health Initiatives, 66 P.3d 195 (Colo. App. 2003) (claim based on FMLA); Gamble v. Levitz Furniture Co. of Midwest, Inc., 759 P.2d 761 (Colo. App. 1988); (claim based on CADA, C.R.S. § 24-34-402(1)(f)(I)); Corbin v. Sinclair Marketing, Inc., 684 P.2d 265 (Colo. App. 1984) (claims based on the Colorado Minimum Wage Act, C.R.S. § 8-6-104, the Labor Peace Act, C.R.S. § 8-3-108(2)(a), and the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 654(a)); Basile v. Missionary Sisters of Sacred Heart of Jesus-Stella Maris Province, No. 11-cv-01827-REB-KMT, 2011 WL 5984752, at *2 (D. Colo. Nov. 30, 2011) (claim based on ADEA); Gorken v. Vinnell Corp., 2006 U.S. Dist. LEXIS 18836 (D. Colo. March 2, 2006) (claims of state law violations preempted by Title VII, 42 U.S.C. §§ 2000e-1 through 2000e-17); Endahl v. Vinnell Corp., 2006 U.S. Dist. LEXIS 1617 (D. Colo. Jan. 10, 2006) (claim based on CADA, C.R.S. § 24-34-402); Perez v. Hospitality Ventures-Denver LLC, 298 F. Supp. 2d 1110, 1111 (D. Colo. 2004) (state law claim preempted by FMLA); Caspar v. Lucent Techs., Inc., 280 F. Supp. 2d 1246 (D. Colo. 2003) (Title VII remedies); Armani v. Maxim Healthcare Servs., Inc., 53 F. Supp. 2d 1120, 1132-33 (D. Colo. 1999) (claim preempted by FLSA, 29 U.S.C. § 215(a)(3)); Smith v. Colo. Interstate Gas Co., 777 F. Supp. 854, 856, 857-58 (D. Colo. 1991) (claim preempted by Title VII); Hein v. AT&T Operations, Inc., 2010 U.S. Dist. LEXIS 133809 (D. Colo. Dec. 17, 2010) (Sarbanes-Oxley Act of 2002 provided wrongful discharge remedy precluding wrongful discharge claim); Kosak v. Catholic Health Initiatives of Colo., 2009 U.S. Dist. LEXIS 100400 (D. Colo. Oct. 28, 2009) (Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. §§ 1320d-5 and d-6, provided wrongful discharge remedy precluding public policy wrongful discharge claim), aff'd on other grounds, 400 F. App'x 363 (10th Cir. 2010); Trujillo v. Atmos Energy Corp., 896 F. Supp. 2d 949 (D. Colo. 2012) (OSHA remedies for wrongful discharge preclude public policy claim). Further, the Tenth Circuit held that an employee cannot assert a wrongful discharge claim against public policy because of the employee's failure to avail himself of a statutorily available remedy within the required time. Stout v. Gyrodata, Inc., 560 F. App'x 765, 767 (10th Cir. 2014) ("As the district court explained, [OSHA, 29 U.S.C.] § 660(c) was an available remedy to Plaintiff when he was terminated and his failure to avail himself of that remedy does not entitle him to now assert a common law public policy claim.").

Courts are divided, however, regarding whether the provisions of the Colorado Anti-Discrimination Act, C.R.S. §§ 24-34-401, et seq. (CADA), preempt claims based on wrongful discharge, where the public policy implicated by the discharge is the policy articulated by the Act itself. Two lines of cases have emerged.

Relying on the Colorado Supreme Court's holding in Brooke v. Restaurant Services, Inc., 906 P.2d 66 (Colo. 1995), some courts have held that absent a detailed showing that the Colorado legislature intended for CADA to be the exclusive remedy against an employer who wrongfully discharges an employee based on a protected class, common law remedies remain available to plaintiffs. See Kennedy v. Colorado RS, LLC, 872 F. Supp. 2d 1146 (D. Colo. 2012); Marcantonio v. Comcast Cable Commc'ns Mgmt., LLC, 2016 WL 775689 at *3 (D. Colo. Feb. 29, 2016); Mellema v. Intervention, 2014 WL 553779 (Colo. App. 2014) (unpublished). In Brooke, the court held that CADA did not preempt a common law claim for tortious interference with contract based on alleged gender discrimination. The Brooke court declared that a statute does not bar common law remedies unless the legislature clearly expresses its intent to do so. Brooke, 906 P.2d at 68. The court also found that the statute did not provide a comprehensive remedy, which thus indicated "by clear implication" a lack of legislative intent to preclude common law claims. Id.¹⁷ Although Brooke did not deal with a public policy wrongful-discharge claim, and the supreme court avoided deciding the issue in Weissman,ⁿ the Brooke decision was not written to be limited strictly to preemption of tortious interference claims. Instead, the court specifically stated that its holding applied to all sexual discrimination in the workplace, and in a footnote expanded the holding to other forms of workplace discrimination prohibited by CADA. Brooke, 906 P.2d at 68-70, n. 4.

In contrast, other courts have followed the Gamble line of cases to hold that CADA preempted wrongful discharge claims premised on policies already addressed (or redressed) by the statute. In Gatuma v. Encore Electric, Inc., the court held that "Gamble, Krauss and others, decided both before and after Brooke, address the issue squarely and conclude that preemption is appropriate." 2012 U.S. Dist. LEXIS 155394, at *5 (D. Colo. Oct. 30, 2012) (citing Gamble v. Levitz Furniture Co. of Midwest, Inc., 759 P.2d 761 (Colo. App. 1988); see also Spaziani v. Jeppesen Sanderson, Inc., ...