2016 COA 18
Colo. Ct. App.2016Background
- Douglas Williams was Denver plant manager for Rock-Tenn for 36 years; after a failed internal audit, a post-audit meeting was rescheduled to July 3, 2012.
- Williams had an approved vacation that coincided with the rescheduled meeting; his direct supervisor (Vas) approved the vacation and his absence.
- Williams was unavailable in person or by phone on July 3 due to being in a remote area while on vacation.
- When he returned, Williams was terminated for "unsatisfactory work performance" at the direction of Dwight Morris, who had been upset that Williams missed the post-audit meeting.
- Williams sued under Colorado’s Lawful Off-Duty Activities Statute (LODAS), § 24-34-402.5(1), claiming termination for engaging in lawful off-premises, off-hours activity (an approved vacation).
- The district court granted Rock-Tenn’s C.R.C.P. 12(b)(5) motion to dismiss; the court held the alleged conduct was "reasonably and rationally related" to Williams’s employment and thus falls within the statutory exception. The court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint states a LODAS claim given alleged termination for taking an approved vacation | Williams: complaint alleges termination solely because he was on an approved vacation (a private lawful activity) and thus protected by LODAS | Rock-Tenn: even if vacation was lawful off-duty activity, missing the post-audit meeting was conduct reasonably and rationally related to plant manager duties and falls within § 24-34-402.5(1)(a) exception | The court held dismissal proper: allegations show Williams was terminated for missing a meeting that was part of his job duties, so the statutory exception applies and LODAS claim fails |
| Whether the district court improperly considered an affirmative defense on a 12(b)(5) motion | Williams: raising the § 24-34-402.5(1)(a) exception is an affirmative defense and should not be resolved on a motion to dismiss | Rock-Tenn: the statutory exception is part of the same provision invoked and, on the face of the complaint, clearly applies | The court held it was proper here because the complaint’s allegations plainly established the statutory exception, permitting dismissal under 12(b)(5) |
| Proper standard of review on 12(b)(5) | Williams: district court mischaracterized allegations and failed to construe facts in his favor | Rock-Tenn: facts in complaint demonstrate the nexus between vacation and missed meeting | The court applied de novo review and concluded that, read as a whole, the complaint alleges unavailability for a meeting tied to managerial duties, so dismissal stands |
| Whether taking an approved vacation is per se a "lawful activity" under LODAS | Williams: implied that an approved vacation is a protected lawful activity | Rock-Tenn: did not need to concede; focus is on whether the activity conflicted with job duties | The court declined to decide this question because the statutory exception resolved the case |
Key Cases Cited
- Watson v. Pub. Serv. Co. of Colo., 207 P.3d 860 (Colo.App. 2008) (describing LODAS as exception to at-will termination)
- Coats v. Dish Network, L.L.C., 308 P.3d 147 (Colo.App. 2013) (summarizing LODAS purpose; employer should not police off-duty private activities)
- Bristol Bay Prods., LLC v. Lampack, 312 P.3d 1155 (Colo. 2013) (affirmative-defense-on-dismissal narrow exception)
- Dorman v. Petrol Aspen, Inc., 914 P.2d 909 (Colo. 1996) (scope and standard for motions to dismiss)
- Popovich v. Irlando, 811 P.2d 379 (Colo. 1991) (defining employment-related activities as inherently connected to job duties)
- Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377 (Colo. 2001) (dismissal appropriate where no set of facts in complaint can entitle plaintiff to relief)