Mullin v. Hyatt Residential Grp., Inc.

82 F.Supp.3d 1248

Ian Mullin, Plaintiff

v.Hyatt Residential Group, Inc., a Delaware Corporation f/k/a Hyatt Vacation Ownership, Inc., and Hyatt Residential Marketing Corporation, a Florida Corporation, Defendants.

Civil Action No. 13–cv–2348–WJM–NYW

United States District Court, D. Colorado.

Signed March 9, 2015

As Amended March 10, 2015

Clayton Earl Wire, Thomas Dean Neville, Ogborn Mihm, LLP, Denver, CO, for Plaintiff.

David G. Freedman, David G. Freedman, Attorney at Law, Los Angeles, CA, for Defendants.

AMENDED ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

William J. Martínez, United States District Judge

Plaintiff Ian Mullin brings this action against Defendants Hyatt Residential Group, Inc. and Hyatt Residential Marketing Corporation for wrongful discharge in violation of public policy. (ECF No. 22.) This matter is before the Court on Defendants' Motion for Summary Judgment. (ECF No. 27.) For the reasons set forth below, the Motion is denied.

I. BACKGROUND

The following relevant facts are undisputed, unless otherwise noted. The Hyatt Grand Aspen (“HGA”) is a luxury condominium resort owned by Grand Aspen Holdings, LLC, a four-member limited liability corporation (“the Ownership Group”). (ECF No. 27 at 3–4.) In 2004, Defendants contracted with the Ownership Group to act as its marketing and sales agent for fractional interval ownership interests, commonly referred to as timeshares, at HGA. (Id. at 4.) In June 2010, Plaintiff, a licensed Colorado real estate broker, was hired by Defendants to act as the director of sales and marketing for timeshares at HGA. (Id. at 3–4.) When Plaintiff received a timeshare purchase offer, he would communicate that offer to his direct supervisor, Steven Craig. (Id. at 4–5.) Mr. Craig would then forward the offer to Larry Shulman, Defendants' vice president of sales and marketing, who would review the offer. (Id. ) It was Plaintiff's understanding that Defendants, through Mr. Craig or Mr. Shulman, would then provide the purchase offers to the Ownership Group for consideration. (Id. at 5.)

Plaintiff asserts that, as a licensed real estate broker, he had a statutory duty to ensure that all purchase offers were disclosed to the Ownership Group as the owner and seller of HGA timeshares. (ECF No. 30 at 13.) However, in July 2011, Plaintiff became concerned that the purchase offers he conveyed to Defendants were not being provided to the Ownership Group. (ECF No. 27 at 5.) Based on these concerns, on July 6, 2011 Plaintiff sent an email to Curtis Kaufman, who Plaintiff believed was part of the Ownership Group, which included HGA pricing information, and discounts and incentives provided to buyers for specific timeshare units. (Id. at 6.) The following week, Plaintiff authorized an employee of Defendants, Holly Upper, to forward similar e-mails to Mr. Kaufman regarding the pricing and incentives offered on HGA units. (ECF No. 30 at 13–14.) On July 20, 2011, Plaintiff attended a meeting with Mr. Kaufman and another Ownership Group representative, David Parker, during which Plaintiff addressed the concerns that certain offers were not being communicated to the Ownership Group, and disclosed offers he suspected had been withheld. (Id. at 14.) At the meeting, Plaintiff discovered that many of the purchase offers that he had received and conveyed to Mr. Craig were not subsequently conveyed to the Ownership Group. (Id. ) Defendants admit that some of the purchase offers were not forwarded to the Ownership Group. (ECF No. 27 at 5.)

Defendants terminated Plaintiff's employment on August 18, 2011. (Id. at 8.) Defendants assert that they reached the decision to terminate Plaintiff due to concerns about Plaintiff's loyalty to Defendants, his alleged poor job performance, and Plaintiff's having authorized Ms. Upper to e-mail the HGA pricing information to Mr. Kaufman, which was viewed as an unauthorized disclosure of proprietary information. (Id. ) However, Plaintiff alleges that he was terminated for communicating the withheld purchase offers to the Ownership Group, as he was required to do as a licensed real estate broker. (ECF No. 22.)

On August 9, 2013, Plaintiff filed this action in the District of Colorado, Pitkin County, and on August 30, 2013, Defendants removed the action to this Court. (ECF No. 1.) Plaintiff's Amended Complaint alleges wrongful termination in violation of public policy against Defendants, along with a claim for exemplary damages. (ECF No. 22.) On May 29, 2014, Defendants filed the instant Motion for Summary Judgment seeking dismissal of Plaintiff's Amended Complaint. (ECF No. 27.) Plaintiff filed a Response (ECF No. 30), and Defendants filed a Reply (ECF No. 35).

II. LEGAL STANDARD

Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Henderson v. Inter–Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir.1994). Whether there is a genuine dispute regarding a material fact depends upon whether the evidence presents a sufficient disagreement as to require submission to a jury or, conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir.1987).

A fact is “material” if it pertains to an element of a claim or defense, and a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The Court must examine the facts in the light most favorable to the nonmoving party, and resolve factual ambiguities against the moving party. Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir.1987). The summary judgment standard thus favors a right to trial. See id.

III. ANALYSIS

Defendants assert that Plaintiff cannot satisfy the necessary elements of wrongful termination in violation of public policy. (ECF No. 27.) Specifically, Defendants allege that (1) the real estate brokerage statutes on which Plaintiff relies are not a legitimate expression of public policy; (2) Plaintiff cannot prove that he owed a statutory duty to the Ownership Group or its alleged representatives with whom Plaintiff communicated; and (3) Defendants terminated Plaintiff for valid reasons, and not because Plaintiff engaged in any protected behavior, or refused to engage in any illegal, fraudulent or unethical conduct. (See generally ECF Nos. 27 & 35.) The Court discusses each issue below.

A. Wrongful Termination in Violation of Public Policy

Absent an express contract providing otherwise, Colorado law presumes that an employment relationship is terminable at will by either party. Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 105 (Colo.1992). However, termination of employment in violation of public policy is a common law exception to the at-will presumption. Id. at 109. An employee terminated for refusing to follow his employer's directive to engage in unethical or unlawful conduct could maintain a claim for wrongful discharge. Kearl v. Portage Envtl., Inc., 205 P.3d 496, 498 (Colo.App.2008). Additionally, an employee terminated for engaging in conduct that is protected or encouraged as a matter of public policy may also have a viable cause of action. Id. It is this latter theory on which Plaintiff bases his claim for wrongful discharge in violation of public policy.¹ (ECF No. 30 at 21.)

A plaintiff asserting wrongful discharge for exercising a job-related right must show “[1] that he or she was employed by the defendant; [2] that the defendant discharged him or her; and [3] that the defendant discharged him or her in retaliation for exercising a job-related right or performing a specific statutory duty, or that the termination would undermine a clearly expressed public policy.”² Kearl, 205 P.3d at 499. Additionally, the plaintiff must allege that the “public policy invoked truly impacts the public in order to justify interference into an employer's business decisions.” Id. (citing Crawford Rehab. Serv., Inc. v. Weissman, 938 P.2d 540, 552 (Colo.1997) ) (quotation marks omitted).

Actions protected under the public policy exception are not confined to any one category of behavior. Rather, wrongful discharge in violation of public policy “has been variously described as an action that involves a matter that affects society at large rather than a purely personal or proprietary interest of the plaintiff or employer, leads to an outrageous result clearly inconsistent with a stated public policy, or strike[s] at the heart of a citizen's social rights, duties, and responsibilities.”Weissman, 938 P.2d at 552 (internal quotation marks and citations omitted). In short, an employer is not permitted to fire an employee in contravention of an important public policy, and, as a corollary, an employee should not be forced to choose between violating the law or losing his job. Lorenz, 823 P.2d at 109.

1. Whether Plaintiff's Claim Implicates Public Policy

Defendants assert that the real estate broker statutes on which Plaintiff relies merely reflect a broker's duties that arise from his private relationship with a seller of real estate. (ECF No. 27 at 14.) Therefore, according to Defendants, any statutory obligations imposed on real estate brokers only impact the seller involved in the relevant transaction, not the general public. (Id. ) The Court disagrees.

Colorado's real estate broker statutes emphasize the importance of consumer protection and transparency in the purchase and sale of real estate. In 1993, the Colorado General Assembly enacted “An Act Concerning Brokerage Relationships in Real Estate Transactions”. Colo. Rev. Stat. § 12–61–801 et seq . (the “Act”). The General Assembly's legislative declaration concerning brokerage...