Edward D. RUSSELL; Lizette M. Russell, Plaintiffs-Appellants, v. GTE GOVERNMENT SYSTEMS CORPORATION, et al., Defendants-Appellees.
No. 04-3437.
United States Court of Appeals, Sixth Circuit.
July 6, 2005.
429
IV. CONCLUSION
For these reasons, we AFFIRM the judgment of the district court.
Donald M. Desseyn, Robert J. Townsend, Patricia Anderson Pryor, Taft, Stettinius
Before SUHRHEINRICH and GILMAN, Circuit Judges; and ACKERMAN,* District Judge.
SUHRHEINRICH, Judge.
Plaintiff Edward D. Russell1 (“Plaintiff” or “Russell“) appeals from the order of the district court denying Plaintiff‘s motion for reconsideration, and granting Defendant GTE Government Systems Corporation (“GTE“)‘s motion for reconsideration in this diversity action for breach of contract and promissory estoppel arising out of Russell‘s employment with GTE. We AFFIRM.
I.
Russell is a systems engineer with experience in the operation and maintenance of satellite communications equipment. In 1985, GTE hired him to work on several defense-related contracts with the United States Government. From 1985 until 1990, Russell worked as the Technical Director of Engineering at LadyLove Field in Japan. From 1992 to 1993, he was the Field Site Manager for the Phoenix Project in San Vito, Italy. From 1993 to 1998, he was the Systems Engineering Manager at the Royal Air Force Base in Feltwell, England.
As part of each assignment, Russell was given a Field Assignment document. The documents outlined various terms of the assignment, including compensation for travel, field premium, housing allowance, moving allowance, tuition, authorized dependent visits, income tax, overtime, home leave, expense reports, time cards, a no fault clause, and the official retirement date.2
In August 1993, while still on assignment in San Vito, Italy, Russell began negotiating with GTE regarding the Atlas Project in Feltwell, England. Russell testified that he had discussions with GTE‘s human resources director, Joyce Yaksick, regarding the terms and conditions for the assignment at Feltwell. Russell alleges that the parties entered into an oral contract at this time, which was later reduced to writing on April 8, 1994. On that date, Russell signed a Field Assignment document relating to the Feltwell assignment (the “Field Assignment“). The agreement had an effective period of August 21, 1993, to September 30, 1994.
Regarding standby pay, the Field Assignment document explained that “[r]equired standby time worked will be paid at the rate of 25% of the actual hours on standby.” Russell complains that, although he was required to carry a beeper and be on-call, he was not compensated for his on-call backup time, contrary to GTE policy.
In November 1994, Pat Molvar, GTE‘s Director of Human Resources and Safety, informed Feltwell employees that field premiums and housing allowances would be reduced in an effort to retain the government contract. At this time, GTE offered Russell and the other Feltwell employees a separation agreement. The separation agreement provided that Feltwell
Russell testified in his deposition that he found neither choice acceptable, but “chose to stay.” He did not sign the release form. Russell also testified that Grubb threatened retaliatory action if the Feltwell employees voiced any objections to the changes. According to Russell, Grubb “didn‘t elaborate, other than to say it will impact the people‘s careers” if they complained.
On January 1, 1995, the field premium pay of all Atlas GTE employees was reduced from 15% to 10%. On October 1, 1995, the housing allowance was reduced to U.S. State Department rates.
In May 1998, Russell signed an agreement to remain on the Atlas project until its completion on October 1, 1998, in exchange for a retention bonus in the amount of $12,554.00. In July 1998, Russell began making future employment plans. Russell claims that GTE induced him to stay on site until the project was completed by promising him that he would receive full joint travel regulation (“JTR“) lodging, and meals and incidental expenses (“M & IE“) per diem for himself, and one-half JTR and MI & E for each of his four dependents, but that GTE actually paid only a portion of what it had promised. On October 1, 1998, Russell left Feltwell, England, and GTE‘s employment.
Russell filed this action on July 2, 1999, in the Greene County Court of Common Pleas. On September 29, 1999, GTE removed the case to the United States District Court for the Southern District of Ohio. On December 17, 1999, Russell filed his First Amended Complaint with leave of Court. On July 13, 2000, Russell filed his Second Amended Complaint, with leave of Court, alleging breach of contract based on GTE‘s failure to pay him standby pay from October 1993 to June 1996 (Count One); breach of contract based on GTE‘s failure to pay standby pay from June 1996 through September 1998 (Count Two); breach of contract for reducing his field premium pay on January 1, 1995; breach of contract due to an alleged reduction in Russell‘s housing allowance on October 1, 1995 (Count Four); promissory estoppel based on GTE‘s failure to pay the promised JTR and M & IE (Count Five); and promissory estoppel based on the allegations of Counts One through Four (Count Six). Russell claimed that GTE owes him in excess of $328,500.
On December 17, 2001, Russell moved for summary judgment. On January 17, 2002, GTE moved for summary judgment and also opposed Russell‘s motion. On September 10, 2002, the district court granted partial summary judgment in favor of GTE. See Russell v. GTE Government Sys. Corp., 232 F.Supp.2d 840 (S.D.Ohio 2002). The district court denied Russell‘s motion in its entirety. Id. at 867.
On November 8, 2002, GTE moved for reconsideration of the portions of the order denying it summary judgment. On November 25, 2002, Russell filed a motion to strike GTE‘s motion for reconsideration. On February 21, 2003, the district court denied Russell‘s motion to strike, granted GTE‘s motion for reconsideration, and granted summary judgment to GTE on all of Russell‘s claims. On March 5, 2003, Russell moved for reconsideration. On May 29, 2003, Russell moved for leave to
Russell filed a notice of appeal on March 31, 2004, appealing only from the March 24, 2004 decision and entry. Thus, the only ruling before us is the district court‘s ruling denying Russell‘s motion for reconsideration.3
II.
When a
This Court has held that a
III.
Russell raises three arguments.4
A.
First, Russell argues that the district court erred in determining that Russell acquiesced to all claims involving standby pay, housing allowance, and field premium benefits.
Under Colorado law,5 “[a] contract for employment terminable at the will of either party may be supplemented by new terms of employment accepted by acquiescence.” Pittman v. Larson Dist. Co., 724 P.2d 1379, 1384 (Colo.App. 1986) (citing Linder v. Midland Oil Refining Co., 96 Colo. 160, 40 P.2d 253, 254 (Colo. 1935)); see also Linder, 40 P.2d at 254 (“[T]he original agreement was terminable at the will of either party; the company terminated it on November 30, 1932, and offered a different arrangement, and by conduct Linder accepted the offer.“). Further, “whether the employee protested contract changes is an important factor in determining whether the employee has ac
Russell admitted, and the district court found, that Russell was an at-will employee. As the district court also held, Russell accepted and acquiesced in GTE‘s standby pay policy at Feltwell, under which employees were not paid standby duty pay for carrying a beeper and being on the on-call backup list. As the district court held on reconsideration,
Plaintiff‘s failure to act and to complain to management, could not be construed as mere silence, ... for a period of five years is unreasonable.... Plaintiff was aware of the construction given to the alleged employment agreement by GTE Government, i.e., that the agreement did not provide for payment for the time that he was listed on the on-call backup list, and Plaintiff cannot now, after the cessation of his employment relationship, argue for a different construction.
Russell manifested his acquiescence by signing his time cards and time sheets certifying that he was reporting that the hours worked were the hours for which he should have been paid from October 1993 to October 1998, and by continuing to work and accept pay checks without objection for five years.
Russell also accepted and acquiesced in the reduced field premium and housing allowance by affirmatively choosing to remain at Feltwell, without complaint, for nearly four years after being given the option in late 1994 either to stay under the reduced policy or return to the United States at GTE‘s expense. Finally, Russell accepted and acquiesced in the hotel compensation by accepting, without reservation, the payments offered by GTE, and by signing the expense report reconciliation forms without complaint.
In short, Russell knew the terms of his employment and how GTE construed those terms. Russell also knew that he was an at-will employee and that he could be terminated, or quit, at any time for any lawful reason. Instead, he chose to remain an employee under the terms offered to him, and to not lodge any objections. As the district court determined on reconsideration, Russell‘s continued employment constituted acceptance of these new terms.
Russell admits that he did not complain to GTE about the terms of his employment, but claims that he took “affirmative action” by “refusing to sign the release or agreement to continue his employment for another three years at Feltwell at the reduced compensation.” This argument is without merit. First, it only related to the reduced field premium and housing allowance policy. Further, Molvar informed the Feltwell employees that if they chose to stay employed at Feltwell, they did not need to sign or do anything, which is the option Russell chose.
Russell also claims on appeal that his silence was motivated by duress; namely that Feltwell Site Manager Lee Grubb threatened retaliation in the form of termination and “blacklisting” in the government contract arena if any of the Feltwell employees protested the reductions. Russell did not make this allegation until his motion for reconsideration, however. A
In any event, the argument is without merit. “In order to establish duress under Colorado law, a party must show an unlawful threat or other improper means, so that the other party‘s will ‘was so taken away that he could not properly enter into [the] contract.‘” Bennett v. Coors Brewing Co., 189 F.3d 1221, 1231 (10th Cir. 1999) (quoting Wiesen v. Short, 43 Colo.App. 374, 604 P.2d 1191, 1192 (1979)).
Russell also contends that he was subject to coercion and duress regarding the reduced field premium and housing allowance policies. This argument likewise fails, for the reasons stated above.
In sum, the district court did not err in concluding that Russell acquiesced in the reductions in field premium or housing allowance, or the terms of standby duty pay.
Russell‘s contention that the district court erred in granting summary judgment on his promissory estoppel claim (Count Five) is also without merit. Russell could not have detrimentally relied on a promise concerning the amount of hotel compensation because he signed an agreement on May 28, 1998, in exchange for a lump sum bonus of $12,554. In his July 16, 1998 memo to Feltwell Site Manager Michael Vanover, Russell requested that his dependents be paid only for M & IE. GTE paid for his hotel stay as requested. Furthermore, Russell sold his home and moved into a hotel on July 13, 1998, so he could not have relied on Vanover‘s alleged promise concerning hotel compensation.
Similarly, Russell offered no evidence that he turned down any other employer‘s job offers prior to August 1, 1998, and, in fact, Russell admitted that he did not begin a job search until after that date. Although Russell was considering taking another job with GTE in Dayton, Ohio, he was not offered any GTE job in 1998. Finally, Russell was paid a total of $392 per day ($149 for housing and $243 for meals and incidentals), which Russell admitted exceeded the cost of the stay. Finally, Russell admitted to the district court in his motion for reconsideration that he did not suffer “an actual financial or pecuniary loss as a result of the breach of promise.” Since he did not rely on the alleged promise to his detriment, he cannot make out a promissory estoppel claim. See Smalley & Co. v. Emerson & Cuming, Inc., 808 F.Supp. 1503, 1515 (D.Colo. 1992) (promissory estoppel claim failed where the plaintiff did not show detrimental reliance), aff‘d, 13 F.3d 366 (10th Cir. 1993). Troutman v. Webster, 82 Colo. 93, 257 P. 262, 264 (1927), cited by Russell, is distinguishable. There, the plaintiff quit his job in reliance on a promise. That is not the case here.
B.
Russell also argues that the district court erred by not allowing him to file a responsive pleading to GTE‘s motion for reconsideration of the court‘s initial decision, and not allowing him to file a motion for reconsideration.
Issues of docket control are within the sound discretion of the trial court. Jones v. Northcoast Behavioral Healthcare Sys., 84 Fed.Appx. 597, 598-99 (6th Cir. 2003) (order). This Court will not interfere with the court‘s docket unless there has been a
Russell also maintains that the district court improperly allowed GTE‘s motion for reconsideration because the documents upon which GTE relied were not newly discovered evidence. However, there was no final judgment when the court entertained GTE‘s motion for reconsideration, so the strictures of
C.
Lastly, Russell alleges that the district court erred when it dismissed his Third Amended Complaint. Russell filed his Third Amended Complaint on May 29, 2003, attempting to add a fraud claim based on alleged misrepresentations made to induce him to move to Feltwell, England. The district court issued a notation order granting Russell‘s leave to file it on January 28, 2004. GTE filed an answer to the Third Amended Complaint on February 10, 2004. Thereafter, GTE filed a motion for reconsideration of the notation order granting leave to file a third amended complaint. The court dismissed the complaint, prior to receipt of Russell‘s response. Russell contends that, once GTE filed its answer, the district court should have treated the subsequent motion as a motion for summary judgment under
Russell‘s argument obscures the fact that he did not move to amend his complaint until after final judgment issued. “Although leave to amend a complaint should be granted liberally when the motion is made pretrial, different considerations apply to motions filed after dismissal.” In re General Motors Corp. Anti-Lock Brake Prods. Liability Litig., 174 F.R.D. 444, 446 (E.D.Mo. 1997), aff‘d, 172 F.3d 623 (8th Cir. 1999). Amendments after judgment should only be allowed if the standards under
The standard of review for a district court‘s denial of a motion to amend is abuse of discretion. Northwestern Nat. Ins. Co. v. Joslyn, Nos. 93-4266/4295/4332, 1995 WL 270995, at *5 (6th Cir. May 8, 1995) (per curiam) (noting that, like the denial of a
In any event, Russell waited almost four years to file his third amended complaint to add a fraud claim. The parties had engaged in extensive discovery, filed motions for summary judgment and motions for reconsideration, and the district court had already considered and awarded judgment on all claims. Thus, both undue delay and Russell‘s part and prejudice to GTE warranted the denial of his motion.
The proposed amendment would also be futile, because, at a minimum, it was untimely. The statute of limitations for misrepresentations actions in Colorado is three years.
Finally, it should be noted that the district court indicated that if the matter were remanded by this Court, Russell was “welcome” to renew his motion for leave to file a third amended complaint. Cf. Johnson v. Levy Org. Dev. Co., 789 F.2d 601, 611 n. 8 (7th Cir. 1986) (stating that until a plaintiff “file[s] a motion to vacate the judgment against him and ha[s] that judgment lifted, the court [does] not have to consider the merits of whether to allow him to amend his complaint“).
IV.
For the foregoing reasons, the judgment of the district court is AFFIRM ED.