Anderson v. Corporation, (10th Cir. 2006)

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DEBRA ANDERSON,

Plaintiff ­ Appellant,

v.



REGIS CORPORATION,

Defendant ­ Appellee.

No. 05-1377

(D.C. No. 04-CV-597-REB-BNB)

(D. Colo.)

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before HENRY,
name="9">BRISCOE, and LUCERO,

Circuit Judges.

Debra Anderson, formerly an executive in charge of managing hair salons,

appeals the dismissal on summary judgment of her claims that she was fired by

the Regis Corporation in breach of an implied contract to issue an employee three

warnings before firing her. She also appeals the dismissal of her claim that Regis

promised to issue warnings and was required to do so under the doctrine of

promissory estoppel. Her appeal has no merit. Under Colorado law, Anderson

was an employee-at-will, and Regis never manifested any intention, nor made any

promise, to follow a particular procedure before dismissing an executive.

Accordingly, we AFFIRM the district court's decision.

I Anderson was first hired by Regis to work as a

cosmetologist in 1996. As

a new hire, she received a packet entitled "Important Information for the New

Employee." The second page of the packet set forth the nature of her

relationship with Regis:

Nothing in the information provided herein, nor in any other written

or unwritten policies or procedures creates or is intended to create an

express or implied contract, covenant, promise or representation

between the company and any employee. All employees are at-will

and the company has the right to terminate any employee at any time

with or without notice. Any exception to the at-will relationship

must be evidenced by a written agreement signed by the affected

employee and the company president.

Anderson also signed a "Personnel Data Sheet" which stated:

I further understand that no provision contained in "Important

Information for the New Employee" is intended to create a contract

or guarantee of employment between Regis Corporation and any

employee, or to limit the rights of the company and its employees to

terminate the employment relationship at any time, for any reason in

the company's sole discretion.

In 1999, Anderson was promoted to the position of Salon Manager. When she

was promoted, she was given a handbook called "The Regis Salons Manager's

Reference Guide," (the "Guide") which explained how she should conduct

herself in her new position. It was explicitly targeted at Salon Managers; nothing

in it discussed the responsibilities of any other level of Regis employee.

In the last section of the Guide, there were recommendations for steps a

Salon Manager should take when disciplining an employee. This section

included a "warning notice" form. On the form, there were three categories of

warnings: "verbal," "written," and "final." Nowhere in the Guide is there any

requirement that Salon Managers issue warnings before discharging an employee;

the only provisions on termination that use the imperative are admonitions that a

Salon Manager may not fire anyone for a discriminatory or prejudicial reason and

must not discuss any termination with another employee or a customer.

The Guide also clearly and conspicuously stated:

This guide is intended only to assist Regis salon managers in their

operation of Regis salons, and does not create a contract between

Regis and any of its salon managers and/or salon employees.

In 2000, Anderson was promoted to the position of "Area Supervisor."

This position is not located in a salon; it is an executive position, responsible for

managing the operation of several salons. She did not sign a written employment

contract when she was promoted and was given no documents outlining her rights

and responsibilities as an Area Supervisor.

During her time in this position, Anderson testified in a wrongful discharge

lawsuit brought by a Salon Manager she had fired. In deposition testimony, she

said that she did not use "progressive discipline," ­ i.e. issue warnings ­ before

firing the employee because it was not, in her judgment, appropriate.

Also during this period, Regis invited Anderson to attend a seminar

entitled "Managing within the Law." Only executives at the Area Supervisor

level or higher attended the seminar. It was conducted by outside attorneys, who

stated at the beginning of the seminar that they were not setting or explaining

company policy or making legal conclusions. Following the seminar, the

attorneys handed out a workbook (the "Workbook") discussing in depth topics

raised during the event. The section on discipline suggested that managers issue

warnings before engaging in any harsher discipline, carefully using the word

"should" before these statements. It also stated clearly that, for employees-at-will, managers "do

not need to follow a specific 'progressive discipline

program.'" No language in the Workbook set forth a specific series of steps

Regis employees were required to take before discharging an employee.

Several years into her tenure as an Area Supervisor, Regis executives

determined that the sales performance of the salons for which Anderson was

responsible was insufficient. She was given a verbal warning and put on 60

days' probation. Soon after the probationary period expired, Anderson was fired.

Anderson brought suit in Colorado state courts, alleging that Regis

violated an implicit contract to issue warnings before discharging an employee.

In the alternative, she claimed that Regis was barred by promissory estoppel from

treating her as an employee-at-will because of representations made in the Guide

and the Workbook. Regis removed the suit to federal court and moved for

summary judgment. The district court granted summary judgment, finding that

nothing in the documents handed out by Regis, nor anything in its practices,

made a promise or manifested a willingness to be bound to a limitation on at-will

employment for Area Supervisors. Anderson now appeals.

II Anderson appeals the district court's decision that

Regis did not create an

implied contract, or make a promise to which it is bound under promissory

estoppel, requiring three warnings to be issued before the termination of an Area

Supervisor. Her appeal is meritless. Regis did not make a promise or an implied

contract to use any specific form of discipline prior to discharging an executives

at her level. Absent such an implied contract or promise, Anderson was an

employee-at-will under Colorado law and Regis was entitled to terminate her

employment without warning. The district court correctly dismissed her claims

on summary judgment.

We review the district court's grant of summary judgment de novo, using

the same standard as did the district court. See Scull v. New Mexico, 236 F.3d

588, 595 (10th Cir. 2000). Summary judgment is appropriate if the movant

establishes that "there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

We must "view the evidence and draw reasonable inferences therefrom in the

light most favorable to the nonmoving party." Scull, 236 F.3d at 595.

The parties agree that Colorado law governs this dispute. Employment in

Colorado is generally at-will, meaning that an employee can be fired at any time

without cause or notice. Continental Air Lines, Inc. v. Keenan, 731 P.2d 708,

711 (Colo. 1987). However, an employer can be liable for firing an employee if

doing so violates "an implied contract [that] arises out of company policy and

employment manuals or where an employee relies on the policies and manuals to

his detriment." Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1464 (10th Cir.

1994) (applying Colorado law). An implied contract can arise out of a personnel

manual or handbook that purports to limit an employer's right to terminate

employees at will if the circumstances demonstrate that the employer manifested

a willingness to be bound by the terms of the manual. See Frymire v. Ampex

Corp., 61 F.3d 757, 769 (10th Cir. 1995) (applying Colorado law). "To establish

that an employment manual creates contractual obligations, the employee must

show that the employer's actions manifest to a reasonable person an intent to be

bound by the provisions of the document." Evenson v. Colo. Farm Bureau Mut.

Ins. Co., 879 P.2d 402, 408-09 (Colo. Ct. App. 1993).

However, if an employer attaches a clear and conspicuous disclaimer

indicating the employer did not intend to create a contract, the disclaimer can

void indications in a handbook that an employer is bound to comply with certain

policies. Id. Existence of a clear and conspicuous disclaimer is not dispositive;

an employer can be found to have manifested an intent to be bound by the terms

of a handbook even if there is a disclaimer if the handbook states that there are

mandatory termination procedures or that just cause is required for termination.

Id; see also Allabashi v. Lincoln Nat'l Sales Corp., 824 P.2d 1, 4

(Colo. Ct. App.

1991).

Anderson points to two documents ­ and only two documents ­ in which

she claims Regis created an implied contract that required it to issue warnings

before firing an Area Supervisor. First is the Guide. By its own language, the

Guide is intended to instruct Salon Managers how to run a salon; it does not say

anything about company policy with regard to managers. Further, the section on

discipline in the Guide does not set forth a mandatory policy; it simply contains a

list of suggestions for Salon Managers. Finally, the Guide contains a clear and

conspicuous disclaimer, stating that it "does not create a contract between Regis

and any of its salon managers and/or salon employees." This document clearly

did not create any obligation on the part of Regis to issue warnings before firing

Anderson.

Second, Anderson points to the Workbook, which was handed out at a

seminar for Regis managers. As noted above, the seminar and the Workbook

were given to employees at the Area Supervisor level and above and was

specifically aimed at teaching these employees how to treat lower-level

employees. This Workbook does not set forth specific, mandatory procedures

about discharging employees ­ in fact, it explicitly says that "at-will employment

also means that you do not have to follow any specific procedures or processes

before you terminate someone." It simply gives advice to managers about best

practices. Further, the attorneys who conducted the seminar clearly stated that

they were not setting company policy. Anderson's argument that the Workbook

created a mandatory policy is also contradicted by the goal of seminar, which she

acknowledges was avoiding lawsuits from salon employees. How a seminar

aimed at avoiding lawsuits gives rise to an employment contract that creates the

potential for them is not explained by Anderson.

Based on these undisputed facts, the district court rightly found that

Anderson could not maintain a claim for breach of an implied contract and

summary judgment was appropriate.

Even if no contract was formed, a fired employee can, under some

circumstances, maintain a claim under promissory estoppel that an employer

promised to follow policies in a manual and that the employee relied upon these

promises to her detriment. Vasey, 29 F.3d at 1466. In order to prove a

promissory estoppel claim, a plaintiff must show "(1) the employer should

reasonably have expected the employee to consider the employee manual as a

commitment from the employer to follow policies contained in the manual, (2)

the employee reasonably relied on the termination procedures to his detriment,

and (3) that injustice can be avoided only by enforcement of the termination

procedures." Id. (citing Continental Air Lines Inc., 731 P.2d at 712).

However,

our careful record review discloses no evidence that demonstrates Regis should

reasonably have expected Anderson to have personally considered either the

Guide or the Workbook as a commitment to follow the claimed termination

policies. Thus, the district court correctly dismissed this claim on summary

judgment as well.

We AFFIRM the district court's decision dismissing Anderson's breach

of

implied contract and promissory estoppel claims on summary judgment.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. This court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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