An employee may state a claim for termination in violation of public policy by alleging that she was employed by the defendant, the defendant fired her, and the defendant discharged her “(1) in retaliation for exercising a job-related right or performing a specific statutory duty, or (2) that the termination would undermine a clearly expressed public policy.” Underwood v. GEO Group, Inc., No. 10–cv–306–LTB–KLM, 2011 WL 5593150, at *15 (D.Colo.2011) (unpublished) (quoting Kearl v. Portage Environmental, Inc. 205 P.3d 496, 499 (Colo.App.2008) ) (numbers added). Regarding the second category, if an employer fires an employee for “engaging in conduct that is protected or encouraged as a matter of public policy,” that employee may have a viable cause of action.
(3)(b) the discharge would undermine a clearly expressed public policy.Kearl v. Portage Envtl., Inc. , 205 P.3d 496, 499 (Colo. App. 2008) (citing Lorenz , 823 P.2d at 109 and Lathrop v. Entenmann's, Inc. , 770 P.2d 1367, 1373 (Colo. App. 1989) ). "[U]nder the third prong, in order to survive summary judgment, a plaintiff must ‘present evidence that [his] termination was causally connected to [his exercise of a job-related right or performance of a statutory duty].’ " Angell v. Fairmount Fire Prot. Dist. , 907 F.Supp.2d 1242, 1256 (D. Colo. 2012). "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.
(3)(b) the discharge would undermine a clearly expressed public policy. Kearl v. Portage Envtl., Inc. , 205 P.3d 496, 499 (Colo. App. 2008) (citing Lorenz , 823 P.2d at 109 and Lathrop v. Entenmann's, Inc. , 770 P.2d 1367, 1373 (Colo. App. 1989) ). "[U]nder the third prong, in order to survive summary judgment, a plaintiff must ‘present evidence that [his] termination was causally connected to [his exercise of a job-related right or performance of a statutory duty].’ " Angell v. Fairmount Fire Prot. Dist. , 907 F.Supp.2d 1242, 1256 (D. Colo. 2012). "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.’ "
" [T]he public policy exception to the at-will employment doctrine is not subject to precise definition, yet is grounded in the notion that an employer should be prohibited from discharging an employee with impunity for reasons that contravene widely accepted and substantial public policies." Kearl v. Portage Envtl., Inc., 205 P.3d 496, 498 (Colo.App. 2008). The plaintiff must allege that the " public policy invoked 'truly impacts the public in order to justify interference into an employer's business decisions.'"
R. at 274-75; see also Jaynes, 148 P.3d at 243-47. Mr. DeFazio suggests a different result is required by Kearl v. Portage Environmental, Inc., 205 P.3d 496 (Colo. App. 2008), and Haynes v. Poudre Valley Health Care, Inc., No. 09-cv-01956-WYD-BNB, 2011 WL 1225590 (D. Colo. Mar. 31, 2011), but we cannot agree. In the first case, the Colorado Court of Appeals found "a clearly expressed public policy" against terminating employees in retaliation for their attempt to expose or prevent efforts by their employers to defraud the government.
However, an exception to this general rule exists that "allows at-will employees to pursue claims for wrongful discharge if they allege that they were discharged because they engaged in conduct that is protected or encouraged as a matter of public policy." Kearl v. Portage Env't, Inc., 205 P.3d 496, 498-99 (Colo. App. 2008). To establish a prima facie case of wrongful termination in violation of public policy, the plaintiff must demonstrate that:
Under the first category, "a plaintiff may state a claim for retaliatory discharge in violation of public policy by alleging that: (1) she was employed by the defendant; (2) the defendant discharged her; and (3) the defendant discharged her 'in retaliation for exercising a job-related right or performing a specific statutory duty.'" Underwood, 2011 WL 5593150, at *15 (citing Kearl v. Portage Envtl., Inc., 205 P.3d 496, 499 (Colo. App. 2008)).
In contrast, for a claim for wrongful discharge in violation of public policy, a plaintiff must allege that he was discharged "(1) in retaliation for exercising a job-related right or performing a specific statutory duty, or (2) that the termination would undermine a clearly expressed public policy." Brown v. Premier Roofing, LLC, 173 F. Supp. 3d 1181, 1184-85 (D.Colo. 2016) (citing Underwood v. GEO Group, Inc., No. 10-cv-306-LTB-KLM, 2011 WL 5593150, at *15 (D.Colo. 2011) (quoting Kearl v. Portage Environmental, Inc. 205 P.3d 496, 499 (Colo.App. 2008)). The Court need not reach the question of whether the proposed amendment is futile and expresses no opinion as to whether Mr. Kirkland's proposed Amended Complaint can state a claim for wrongful discharge.
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.
A plaintiff asserting such a claim 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." Kearl v. Portage Env't, Inc., 205 P.3d 496, 499 (Colo.App. 2008) (citing Lorenz, 823 P.2d at 109). "[The] public policy must concern behavior that truly impacts the public in order to justify interference into an employer's business decisions."