Barlow v. C.R. England Inc.

WILLIE BARLOW, JR., Plaintiff,

v.C.R. ENGLAND INC., Defendant.

Civil Action No. 09-cv-02476-CMA-MJW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

DATED: July 25, 2013

Judge Christine M. Arguello

ORDER GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant C.R. England, Inc.'s Motion for Summary Judgment (Doc. # 55) is again before the Court, this time on remand from the Tenth Circuit Court of Appeals. As discussed below, the motion is granted in part as to Plaintiff Willie Barlow, Jr.'s claim for wrongful discharge from his janitorial contract, which is the only claim currently at issue.

I. BACKGROUND

A. FACTS¹

The site manager for Defendant's maintenance yard, John Smith ("Smith"), hired Plaintiff in February 2005 as a security guard and served as Plaintiff's supervisor.In February 2007, Plaintiff began performing maintenance services for Defendant's office building through a company called E & W Janitorial & Maintenance Services ("E & W") that he formed with his partner, Ernestine Hudson. Plaintiff and Ms. Hudson obtained a cleaning license for E & W, created invoices and a separate bank account for the business, and filed a separate income tax return for it.

While performing security guard duties at Defendant's maintenance yard on June 6, 2007, Plaintiff was hit on the head by a malfunctioning 300-400 pound automatic gate. As a result of the injuries he sustained, Plaintiff claims to suffer from balance problems and disabling pain in his back, neck, head, and jaw, all of which interfere with his ability to work and make it difficult for him to stand, walk, lift, and stoop. Plaintiff's physician imposed a lifting restriction of not more than 25 pounds.

Plaintiff filed for workers' compensation on June 7, 2007, and was subsequently granted benefits. He continued to work as both a security guard and a janitor. In December 2007, Smith terminated Defendant's contract with E & W due to his concern that Plaintiff was performing janitorial services during his security guard shifts and lifting more than 25 pounds. Plaintiff obtained workers' compensation until April 30, 2008, when his employment with Defendant as a security guard was also terminated.

B. PROCEDURAL HISTORY

Plaintiff asserted the following five claims for relief: (1) racial discrimination in violation of 42 U.S.C. § 1981(a); (2) violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101; (3) wrongful discharge in violation of public policy; (4) racialdiscrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; and (5) violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201.

On September 7, 2011, the Court granted Defendant's Motion for Summary Judgment. Barlow v. C.R. England, Inc., 816 F. Supp. 2d 1093 (D. Colo. 2011), aff'd in part, rev'd in part, 703 F.3d 497 (10th Cir. 2012). Defendant appealed, and the Tenth Circuit issued its opinion on December 26, 2012. Barlow v. C.R. England, Inc., 703 F.3d 497 (10th Cir. 2012) (affirming this Court's ruling regarding Plaintiff's race discrimination and FLSA claims (Claims 1, 4, and 5)). The Tenth Circuit did not address the ADA claim (Claim 2), because Plaintiff did not appeal the disposition of that claim.

As to the Court's ruling on Plaintiff's state law wrongful discharge claim (Claim 3), the Tenth Circuit reversed and remanded for further proceedings. Claim 3 has two parts: "wrongful discharge from security guard position" and "wrongful discharge from janitorial contract." Id. at 507-10. Regarding the first part, the Tenth Circuit held that Plaintiff had "raised a genuine issue of material fact as to whether he was [wrongfully] fired from his security position." Id. at 509. That issue is now ripe for resolution at trial, and the Court will not address it further here. As to the second part (i.e., termination of the janitorial contract), the Tenth Circuit remanded to have this Court address three issues, which the Court will do in the Analysis section below.

II. STANDARD OF REVIEW

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is "genuine" if "the evidence is such that a reasonable jury couldreturn a verdict for the nonmoving party." Allen v. Muskogee, 119 F.3d 837, 841 (10th Cir. 1997). A fact is "material" if, under the pertinent substantive law, it is essential to the proper disposition of the claim. See, e.g., Wright v. Abbott Labs, Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001).

A movant who bears the burden at trial must submit evidence to establish the essential elements of its claims. In re Ribozyme Pharms., Inc. Sec. Litig., 209 F. Supp. 2d 1106, 1111 (D. Colo. 2002). However, when the movant does not bear the ultimate burden of persuasion at trial, "it may satisfy its burden at the summary judgment stage by identifying 'a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.'" Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting Adler v. Wal-Mart Stores, 144 F.3d 664, 671 (10th Cir. 1998)). In either scenario, if the movant meets its burden, the non-movant may not rest on its pleadings; instead, it must "designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 325-26 (1986) (internal quotation marks and citation omitted).

When reviewing a summary judgment motion, the Court views the record and draws all reasonable inferences therefrom "in the light most favorable to the party opposing summary judgment." Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1146 (10th Cir. 2007).

III. ANALYSIS

As mentioned, the only claim to be addressed here is Plaintiff's claim of wrongful discharge from his janitorial contract. In its opinion, the Tenth Circuit requested "furtherfindings" regarding three issues: (A) whether state or federal law applies to the claim; (B) the basis for the Court's conclusion that independent contractor status precludes a wrongful discharge claim; and (C) the rationale the Court applied in determining that Plaintiff was an independent contractor. Barlow, 703 F.3d at 510. The Court will address these issues in turn.

A. APPLICATION OF STATE LAW

The Tenth Circuit stated that this Court's order was unclear as to "whether federal or state law was applied in determining Barlow's employment status." Id. In its order, this Court cited state common law factors established by the Colorado Supreme Court in Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 109 (Colo. 1992), and restated in Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1235 (10th Cir. 1997). Barlow, 816 F. Supp. 2d at 1105. While these citations indicate that Colorado common law was applied, the factors recited therein are used to determine whether a worker who has already been deemed an employee can state a prima facie case of wrongful discharge; they do not help in deciding whether a worker is, to begin with, an employee or an independent contractor. Therefore, the Tenth Circuit's suggestion to clarify what law was applied in determining that Barlow was an independent contractor is well taken.

To determine whether a worker is an employee or an independent contractor in a wrongful discharge claim, the parties assert, and the Court agrees, that the state common law standard governs. (Doc. ## 105 at 5; 106 at 5); see Zinn v. McKune, 143 F.3d 1353, 1357 (10th Cir. 1998) (stating, in a Title VII case, that the definition of employee "should be fleshed out by applying common-law agency principles to the factsand circumstances surrounding the working relationship of the parties"); see also Roth v. Am. Hosp. Supply Corp., 965 F.2d 862, 866 (10th Cir. 1992) (noting that, in the ERISA context, the Supreme Court has established that, absent a federal statute to the contrary, the test for worker status comes from the common law). In Colorado, this standard consists of multiple factors that courts apply based on the particular circumstances of individual cases. See, e.g., Norton v. Gilman, 949 P.2d 565, 567-68 (Colo. 1997).

B. BASIS FOR DETERMINING THAT INDEPENDENT CONTRACTOR STATUS PRECLUDES WRONGFUL DISCHARGE CLAIM

Because resolving Plaintiff's worker status would be unnecessary if independent contractors had the same legal protection from wrongful discharge as employees, the Court will first clarify why independent contractor status precludes wrongful discharge claims. "Colorado adheres to the 'at will employment' doctrine, subject to a public policy exception," Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 495 (10th Cir. 1992) - in other words, employers have the discretion to fire employees unless doing so would injure the public good. One way the public good may be injured is if an employee is fired in retaliation for the employee's lawful pursuit of a worker's compensation claim; in such cases, "Colorado courts have explicitly recognized an employee's claim for wrongful discharge in violation of public policy." Anderson v. Royal Crest Dairy, Inc., 281 F. Supp. 2d 1242, 1249 (D. Colo. 2003) (citing Lathrop v. Entenmann's, Inc., 770 P.2d 1367 (Colo. App. 1989)).

Colorado courts, however, have not decided if wrongful discharge protection applies to independent contractors, and therefore this Court must "predict how Colorado's highest court would rule on enlarging this public policy exception to include independent contractors." Wisniewski v. Med. Action Indus., Inc., No. 99-D-409, 2000 U.S. Dist. LEXIS 19321, at *7, 8 (D. Colo. Sept. 25, 2000) (unpublished). The majority rule is that wrongful discharge protection is not available to independent contractors. Id. at *10 (collecting cases); Spyridakis v. Riesling Grp., Inc., 398 F. App'x 793, 798 (3d Cir. Oct. 1, 2010) (unpublished) ("no Pennsylvania case has extended this cause of action to independent contractors, nor are we aware...