Jerud Butler v. Board of County Commissioners for San Miguel County, Colorado
No. 19CA1913
Colorado Court of Appeals
March 11, 2021
2021COA32
San Miguel County District Court No. 18CV30004. Honorable Kari A. Yoder, Judge. Division IV. Opinion by JUDGE GOMEZ. Terry and Dunn, JJ., concur.
SUMMARY
March 11, 2021
2021COA32
No. 19CA1913, Jerud Butler v. Board of County Commissioners for San Miguel County — Employment Practices — Unlawful Prohibition of Legal Activities as a Condition of Employment; Labor and Industry — Freedom of Legislative and Judicial Access Act
A division of the court of appeals considers whether the Lawful Activities Statute — which prohibits an employer from “terminat[ing] the employment of any employee” due to the employee‘s lawful off-duty conduct — applies to an employee‘s demotion to another position with the same employer. See
The division also considers whether the Freedom of Legislative and Judicial Access Act (Access Act) — which prohibits an employer from taking any action against an employee for testifying before a committee of the General Assembly or a court or for speaking to a
Accordingly, the division affirms the trial court‘s dismissal of the plaintiff‘s Lawful Activities Statute claim, reverses the trial court‘s entry of summary judgment on the plaintiff‘s Access Act claim, and remands for further proceedings.
Division IV
Opinion by JUDGE GOMEZ
Terry and Dunn, JJ., concur
Announced March 11, 2021
Killian Davis Richter & Mayle, PC, Nicholas W. Mayle, Damon Davis, Benjamin P. Meade, Joseph H. Azbell, Grand Junction, Colorado, for Plaintiff-Appellant
Williams, Turner & Holmes, P.C., Jeffrey L. Driscoll, Grand Junction, Colorado, for Defendant-Appellee
¶ 2 Accordingly, we affirm in part and reverse in part the trial court‘s entry of judgment in favor of defendant Board of County Commissioners for San Miguel County (the County) and against plaintiff Jerud Butler. Specifically, we affirm the dismissal of
I. Background
¶ 3 Butler and his former brother-in-law, Jeremy Spor, worked in different districts within the County‘s Road and Bridge Department. As Spor and his wife (who is the sister of Butler‘s wife) became embroiled in contested divorce proceedings, Spor and Butler began having issues at work. Around that time, Butler was promoted to district supervisor, conditioned on successfully completing a one-year probationary period and not having any negative interactions with Spor at work.
¶ 4 Shortly after his promotion, Butler took approved time off from work to testify at a parenting time hearing between Spor and his wife. Butler was not issued a subpoena but came to court voluntarily at the request of his sister-in-law and her attorney. During the hearing, he testified about the unpredictable nature of on-call work with the Road and Bridge Department. He indicated, however, that he didn‘t have any supervisory authority over Spor, didn‘t set Spor‘s work schedule, and didn‘t know whether Spor had
¶ 5 Spor lodged a complaint at work. The County conducted an investigation, after which it demoted Butler to his prior, nonmanagerial position at a lower rate of pay. The County‘s stated basis for demoting Butler was that his decision to testify about Spor‘s work schedule (when he didn‘t supervise Spor and wasn‘t aware of Spor‘s scheduling arrangements with his supervisors) reflected poor managerial judgment and allowed his family dispute to disrupt the workplace.
¶ 6 Butler brought this case, asserting claims under the Lawful Activities Statute and the Access Act.2 The trial court dismissed
II. Discussion
A. Standard of Review
¶ 7 We review de novo a trial court‘s dismissal of an action under C.R.C.P. 12(b)(5) for failure to state a claim upon which relief can be granted. Abu-Nantambu-El v. State, 2018 COA 30, ¶ 8. We accept all factual allegations in the complaint as true and view those allegations in the light most favorable to the plaintiff. Id. To survive a motion to dismiss, a complaint must plead sufficient facts
¶ 8 Similarly, we review a trial court‘s grant of summary judgment de novo. Edwards v. Bank of Am., N.A., 2016 COA 121, ¶ 13. We give the nonmoving party the benefit of all favorable inferences that may reasonably be drawn from the evidence, and we construe all doubts as to the existence of any genuine issue of material fact in that party‘s favor. Id. at ¶ 12. Summary judgment is proper only if the pleadings and supporting documentation demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. at ¶ 11; see also C.R.C.P. 56.
¶ 9 We also review a trial court‘s interpretation of a statute de novo. Lewis v. Taylor, 2016 CO 48, ¶ 14. In construing a statute, our primary purpose is to ascertain and effectuate the legislature‘s intent. McCoy v. People, 2019 CO 44, ¶ 37. To do so, we focus first on the language of the statute. Id. We give the statutory words and phrases their plain and ordinary meanings, read those words and phrases in context, and construe them according to the rules of grammar and common usage. Id. We also
¶ 10 If the statutory language is unambiguous, we apply its plain and ordinary meaning and look no further. Carrera v. People, 2019 CO 83, ¶ 18. But if the language is ambiguous, in that it is susceptible of multiple reasonable interpretations, we may consider other aids to statutory construction, such as the consequences of a given construction, the end to be achieved by the statute, and the statute‘s legislative history. McCoy, ¶ 38.
B. Lawful Activities Statute
¶ 11 The parties dispute whether the Lawful Activities Statute‘s prohibition on termination of employment due to an employee‘s lawful off-duty conduct extends to the demotion of an employee. We conclude that it does not.
¶ 12 Section 24-34-402.5, titled “[u]nlawful prohibition of legal activities as a condition of employment,” provides that
[i]t shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due
to that employee‘s engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction: (a) [r]elates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or (b) [i]s necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.
¶ 13 We conclude, for five reasons, that the statute unambiguously prohibits only termination or discharge of an employee‘s employment and does not extend to demotion of an employee to another position with the same employer.
¶ 14 First, we look to the plain and ordinary meaning of the word “terminate.” Where, as here, a statutory term is not defined in a statute, is a word in common usage, and is a word where people of ordinary intelligence needn‘t guess at its meaning, we may refer to dictionary definitions in determining its plain and ordinary meaning. Mendoza v. Pioneer Gen. Ins. Co., 2014 COA 29, ¶ 24.
¶ 15 Second, we glean no significance from the legislature‘s use of the word “terminate” in section 24-34-402.5, as opposed to the word “discharge” used in other employment statutes. See, e.g.,
¶ 16 Nothing in the language of the Lawful Activities Statute suggests the legislature intended a different meaning when it used the word “terminate” rather than “discharge.” Indeed, even if there might be a distinction between the two words in some contexts, the legislature made its intent clear in this statute by adding the phrase “the employment of any employee” after “terminate.” See
¶ 17 This distinguishes the Lawful Activities Statute from section 24-19-102(5)(a), C.R.S. 2020, on which Butler relies. That statute defines “postemployment compensation,” for purposes of provisions limiting postemployment compensation for government-supported
¶ 18 Third, we look to the context in which the statutory words appear. The title of the statute is “[u]nlawful prohibition of legal activities as a condition of employment,” suggesting that the legislature‘s primary focus was on restrictions employers might impose as a condition of maintaining employment — not on actions that might result in an employee‘s demotion from one position to another while still remaining employed. See
¶ 19 Fourth, we are mindful that, in construing a statute, “[w]e do not add words to the statute or subtract words from it.” Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007).
¶ 20 Finally, while the Lawful Activities Statute is a remedial statute that should be interpreted broadly to achieve its objective, Watson v. Pub. Serv. Co., 207 P.3d 860, 864 (Colo. App. 2008), even a remedial statute cannot be read “more broadly than its language and the statutory scheme reasonably permit,” USA Tax Law Ctr., Inc. v. Office Warehouse Wholesale, LLC, 160 P.3d 428, 434 (Colo. App. 2007) (citation omitted). Butler cites cases where other state courts broadly applied common law public policy claims to extend to demotion as well as discharge. See Hill v. State, 448 P.3d 457, 467-68 (Kan. 2019); Trosper v. Bag ‘N Save, 734 N.W.2d 704, 711-12 (Neb. 2007).
¶ 21 Accordingly, we conclude that the Lawful Activities Statute does not apply to the demotion of an employee to another position for the same employer. And, because Butler alleges that he was demoted — and does not allege that he was discharged (or even constructively discharged) — from his employment with the County, the trial court didn‘t err in dismissing this claim.
C. Freedom of Legislative and Judicial Access Act
¶ 22 The parties dispute whether the Access Act protects an employee who testifies as a witness in a court proceeding upon being called by one of the parties or counsel to the proceeding but without an order, subpoena, or other formal court-issued request. We conclude that it does.
¶ 23 The Access Act provides, in relevant part, that
[i]t is unlawful for any person to adopt or enforce any rule, regulation, or policy forbidding or preventing any of its employees from, or to take any action against its employees . . . solely for, testifying before a
committee of the general assembly or a court of law or speaking to a member of the general assembly at the request of such committee, court, or member regarding any action, policy, rule, regulation, practice, or procedure of any person or regarding any grievance relating thereto.
¶ 24 “This statute clearly expresses public policy regarding employees’ responsibilities as citizens to honor requests for testimony from courts and from committees and members of the General Assembly.” Slaughter v. John Elway Dodge Sw./AutoNation, 107 P.3d 1165, 1168 (Colo. App. 2005). It also clearly expresses public policy regarding an employee‘s right to be free from adverse employment action solely for fulfilling those responsibilities. Id.
¶ 26 The parties’ dispute in this case centers on the first element — specifically, what it means to testify “at the request of . . . [a] court.” We conclude that this language is ambiguous.
¶ 27 It‘s unclear exactly what the legislature intended when it used the term “request” with respect to a “court.” The statute doesn‘t define either term. Section 2-4-401(2), C.R.S. 2020, defines “court” for purposes of state statutes to mean “a court of record.” Other authorities suggest that “court” has frequently — but not always — been viewed as synonymous with “judge” or “judicial officer.” See, e.g., C.R.C.P. 107(a)(6) (defining “court” for purposes of the rule on
¶ 28 Assuming, then, that the term “court” in the Access Act means a judicial officer, we turn to the term “request.” The statute concerns a court‘s “request” for a witness‘s testimony — a verb that ordinarily means “the act or an instance of asking for something.” Merriam-Webster Dictionary, https://perma.cc/X566-M75Y; see
¶ 29 However, judicial officers don‘t ordinarily ask witnesses to testify. The County suggests that “[a] court requests the presence of an individual through a court order, subpoena, or pursuant to CRE 614.” But judges, magistrates, and other judicial officers rarely use these tools to solicit a witness‘s testimony — and for good reason, as they must take “great care to insure that [they] do[] not become . . . advocate[s].” People v. Rodriguez, 209 P.3d 1151, 1162 (Colo. App. 2008) (quoting People v. Adler, 629 P.2d 569, 573 (Colo. 1981)), aff‘d, 238 P.3d 1283 (Colo. 2010).
¶ 30 Thus, in practice, judicial officers don‘t often enter orders requiring witnesses to testify unless a party or witness raises an objection (such as an assertion of a privilege or right against testifying or a challenge to a subpoena) that would preclude the testimony and the judicial officer overrules the objection. See, e.g., Hartmann v. Nordin, 147 P.3d 43, 52-53 (Colo. 2006); People v. Ray, 2018 COA 36, ¶¶ 3-8. Judicial officers also don‘t sign subpoenas, which are issued by court clerks or, more frequently, by attorneys. See C.R.C.P. 45(a)(2) (requiring a clerk to issue a blank subpoena
¶ 32 These considerations render the legislature‘s use of the phrase “at the request of . . . [a] court” ambiguous. Accordingly, we turn to the legislative history. See McCoy, ¶ 38.
¶ 35 We are mindful that, “when construing a statute, courts must not follow [a] statutory construction that leads to an absurd result” that would be “inconsistent with the purposes of the legislation.” Town of Erie v. Eason, 18 P.3d 1271, 1276 (Colo. 2001); see also Barnhart v. Am. Furniture Warehouse Co., 2013 COA 158, ¶ 14 (“[I]f the literal import of the text of an act is inconsistent with the legislative meaning or intent, or such interpretation leads to absurd results, the words of the statute will be construed to agree with the
¶ 36 Here, affording statutory protections to court witnesses only when a judicial officer formally requested their testimony by entering a court order, issuing a subpoena, or calling or questioning them as witnesses under CRE 614 would lead to an absurd result not in accord with the legislative intent. As we have explained, judicial officers generally don‘t enter orders requiring a witness‘s testimony unless they are overruling a specific objection; they don‘t issue subpoenas; and they only occasionally question and even more rarely call a witness under CRE 614. And any interpretation that would afford employees protection only when a judicial officer happened to rule on a procedural objection to their testimony or to pose a question to them while they were on the stand would “exalt form over substance without advancing any public policy interest, and would lead to an absurd and illogical result.” Abrahamson v. City of Montrose, 77 P.3d 819, 823 (Colo. App. 2003) (quoting Emps. Ins. v. RREEF USA Fund-II (Colo.), Inc., 805 P.2d 1186, 1188 (Colo. App. 1991)).
¶ 38 We also reject the County‘s argument that a witness must be subpoenaed, rather than appear voluntarily, to fall within the statute‘s protection. In another context, our supreme court has concluded that “[w]here a subpoena is required, the legislature explicitly identifies that requirement.” People v. Yascavage, 101 P.3d 1090, 1095 (Colo. 2004) (interpreting “legally summoned” in section 18-8-707(1)(b), C.R.S. 2020, as not requiring a subpoena). We conclude the same is true here, particularly because the term “request” in section 8-2.5-101(1)(a) doesn‘t suggest any action as formal or mandatory as a subpoena. Indeed, a separate subsection of the statute makes it unlawful to intimidate or take action against a legislative witness regardless of whether the witness testified “voluntarily or pursuant to a subpoena,”
¶ 39 Applying the standard we have adopted today, we conclude that Butler created a triable issue as to the first element of his Access Act claim by presenting evidence that he was called by a party or a party‘s attorney and was permitted by a judicial officer to testify as a witness in a court proceeding. We therefore conclude that the trial court erred in granting summary judgment to the County on this claim.
¶ 40 We decline the County‘s invitation to affirm the entry of summary judgment on the alternative basis that it didn‘t demote
¶ 41 For these reasons, we reverse the trial court‘s entry of summary judgment on the Access Act claim and remand for further proceedings on that claim.
III. Conclusion
¶ 42 We reverse the trial court‘s entry of summary judgment on Butler‘s Access Act claim and remand the case for further proceedings on that claim. We affirm the judgment in all other respects.
JUDGE TERRY and JUDGE DUNN concur.
JUDGE GOMEZ