Opinion
Civil Action 1:23-cv-00480-RM-SBP
03-05-2024
RICHARD R. WONS, JR., Plaintiff, v. THERMO FISHER SCIENTIFIC, INC., Defendant.
RECOMMENDATION ON PARTIAL MOTION TO DISMISS
Susan Prose, United States Magistrate Judge.
This matter is before this court on the motion of Defendant Thermo Fisher Scientific, Inc. (“Thermo Fisher”) to dismiss (ECF No. 21, the “Motion”) Plaintiff Richard Wons, Jr.'s (“Plaintiff” or “Mr. Wons”) claim for wrongful termination in breach of employment policy. See ECF No. 14 (Amended Complaint, “Am. Complt.”) at 36 (Sixth Claim for Relief). Mr. Wons opposes dismissal. ECF No. 44 (“Response). Thermo Fisher has replied. ECF No. 54 (“Reply”). The Motion is referred to this court for a recommendation. ECF Nos. 27, 29. See 28 U.S.C. § 636(b). For the reasons that follow, this court recommends that the Motion be denied.
I. Relevant Background
The Amended Complaint is lengthy, and this court does not attempt to exhaustively summarize it here. Mr. Wons alleges that he was employed by Thermo Fisher for nine years. Am. Complt. at 1. He was a Senior Account Manager for the territories of Colorado and Wyoming. Id. ¶ 7. However, during the COVID-19 pandemic,
[r]ather than complying with its obligations under Title VII, Thermo Fisher refused to accommodate Plaintiff's religious beliefs regarding Thermo Fisher's mandatory COVID-19 vaccination and testing policy. Plaintiff was subjected to harassment, discrimination, and retaliation from Thermo Fisher, which resulted in Plaintiff being suspended without pay and ultimately terminated.Id. at 1-2 (footnote omitted).
In responding to the Motion, Mr. Wons argues that several communications from Thermo Fisher collectively are contractual employment policies (the “Policies”) that Thermo Fisher breached. Response at 7-8. Mr. Wons' allegations as to those communications begin as follows:
On October 13, 2021, Thermo Fisher enacted a mandatory COVID-19 testing requirement (“Testing Requirement”) for certain employees. The Testing Requirement was implemented at U.S. Thermo Fisher sites with 50 or more colleagues and for only those employees who work at Thermo Fisher facilities three days or more per week. No testing was required for employees who work on site less than three days per week.Am. Complt. ¶ 12.
Mr. Wons does not attach the Testing Requirement, but Thermo Fisher attaches a copy to its Reply. ECF No. 54-1 at 6-8. This document states, as Mr. Wons alleges, that mandatory testing applied to sites with 50 or more employees and “[c]olleagues who work at these facilities three days or more per week will be required to participate in our free, weekly testing program; those who work on-site less than three days per week are encouraged, but not required, to participate.” Id. at 7. Mr. Wons thus alleges that “[a]s a fully remote employee who worked from his home office, the Testing Requirement did not apply to Plaintiff.” Am. Complt. ¶ 13. He further alleges:
The documents that the parties attach to their respective briefs are referenced in and central to the Amended Complaint, and their authenticity is not disputed. The court therefore can consider all of the exhibits without converting the Rule 12(b)(6) motion to a motion for summary judgment. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). However, this court sees no reason to consider five of the exhibits that Thermo Fisher attaches to its Reply: Exhibits A, B, D, F and G are also attached to the Motion.
In light of the fact-intensive nature of the parties' arguments, the court quotes the allegations and the exhibits to the briefs at length.
On October 15, 2021, Thermo Fisher issued the formal notice of its Testing Requirement which stated in part: “If a Covered Worker is unable to be tested or requires an alternative testing process due to a medical or other legally protected reason, the Covered Worker should contact Human Resources. Such requests will be handled on a case-by-case basis subject to applicable law.”
On October 18, 2021, Thermo Fisher changed its voluntary COVID-19 vaccine disclosure to mandatory. Thermo Fisher required its employees to disclose their vaccination status by October 31, 2021 (“Mandatory Disclosure”).
The Mandatory Disclosure also required Plaintiff to check two boxes and agree to the following statement: (1) “By checking this box, I confirm I have read and understood the Global COVID-19 Vaccine Policy and Privacy Notice and I freely consent to the Company processing this information for the purposes outlined in the Global COVID-19 Vaccine Policy and Privacy Notice; and (2) By checking this box, I confirm that my disclosure status is accurate.”
The Mandatory Disclosure included both the Global COVID-19 Vaccine Policy and the Privacy Policy which stated that Thermo Fisher could not guarantee the privacy of Plaintiff's personal health information once Plaintiff disclosed his COVID-19 vaccine status to Thermo Fisher.
Plaintiff was concerned that his personal health information would not be protected by Human Resources (“HR”) and did not agree to waive the privacy of it.
On October 22, 2021, Thermo Fisher conducted a series of virtual calls to address questions. During the calls, Thermo Fisher simply referred everything back to the policy. Termination and separation were also discussed.
On November 10, 2021, Thermo Fisher emailed Plaintiff and informed him that certain segments of Thermo Fisher's U.S. workforce, which included Plaintiff, must be fully vaccinated against COVID-19 by December 27, 2021 (“Vaccine Mandate”).Am. Complt. ¶¶ 14-24 (omissions noted, emphasis added). Mr. Wons attaches his copy of the Vaccine Mandate to his Response. ECF No. 44-1. Thermo Fisher also attaches the template email for this document. ECF No. 54-1. Those documents state, in relevant part:
As you know. Thermo Fisher has been taking steps to comply with the U.S. government's COVID-19 vaccine requirements for federal contractors as well as policies implemented by more than 150 of our customers in the U.S. (Note: this is separate from the OSHA vaccine and testing mandate, which applies to companies with 100 or more employees and is currently being reviewed by the federal courts.)
Our vaccine self-disclosure process is complete, and we are pleased to inform you that 80% of our U.S. colleagues reported that they are fully vaccinated. We have completed a thorough review of our existing government contracts to understand which sites are required to comply with the federal contractor vaccine mandate. Our customers also continue to evolve their vaccine requirements and to comply, we need to adopt a greater level of standardization for our field-based colleagues who interact with customers in person.
As a result, we have determined that certain segments of our U.S. workforce will now need to be fully vaccinated against COVID-19. These segments include:
* * *
• All U.S. colleagues in a job classification that requires them to regularly access a customer site or interact directly with customers. These job classifications include:
• Field sales • Field service
• All colleagues based at our Corporate Headquarters in Waltham, Massachusetts, and all U.S. company executives
You are receiving this message because you are a colleague now subject to this requirement. If you are not yet fully vaccinated, you must do so by December 27, 2021 except in limited circumstances where you may be legally entitled to an accommodation for a medical condition or sincerely held religious belief. Additionally, effective November 22, 2021, colleagues hired into these job classifications or at these locations will be required to be fully vaccinated prior to their start date or have an approved accommodation.ECF No. 44-1, No. 54-1 at 1-2.
Mr. Wons alleges that not quite two weeks later, he received another email:
On November 23, 2021, Thermo Fisher emailed Plaintiff and stated: “It is our understanding that you have requested an accommodation in response to the U.S. government's COVID-19 vaccine requirements for federal contractors.” The email detailed the process for medical accommodations and religious accommodations.
The religious accommodation request form stated: “Upon receipt of the completed form, we will begin the interactive process. During the interactive process, you can anticipate the following:
(1) The Accommodation Advisor will facilitate the communication regarding your accommodation request;
(2) We will discuss Thermo Fisher work requirements and policies;
(3) All participating parties will identify reasonable accommodation solutions;
(4) If an accommodation is approved based on your religious belief, the accommodation will be wearing Thermo Fisher approved face coverings, testing negative for COVID-19 on a weekly basis from a designated Thermo Fisher work location where testing is enabled, and following social distance protocols when able to do so effectively during the period in which the company's vaccine requirement is effective.”
On November 26, 2021, Plaintiff submitted a religious accommodation request (“Religious Accommodation”) to the Vaccine Mandate.Am. Complt. ¶¶ 28-30 (paragraph breaks and emphasis added).
Mr. Wons does not attach the Religious Accommodation request form, but Thermo Fisher attaches it to the Motion. ECF No. 21-2. The court will refer to this document as the “Accommodation Request Form.” In addition to the terms that Mr. Wons quotes in Paragraph 29 (above), the document begins by stating:
Technically, the Accommodation Request Form had only bullet points where Mr. Wons uses subparagraph numbers, but neither side ascribes any meaning to this difference.
It is our understanding that you have requested an accommodation based on your religious beliefs. In order for Thermo Fisher to administer your request, please provide complete answers to the questions below.
Accommodation Request Form at 1. Following the portion that Mr. Wons quotes, the form says: “Please submit the completed form to the Job Accommodations Team through the Colleague Services Center. You may find this by typing ‘Job Accommodation' in the search function.” Id.
Mr. Wons uses the term “Colleague Services” in later paragraphs, but the Amended Complaint does not explain who this group is within Thermo Fisher.
The Accommodation Request Form then provides several blanks for applicants to complete. Mr. Wons handwrote answers for each blank, continuing on the second page his answer describing his “sincerely held religious belief . . . or practice that necessitates this request for accommodation.” Id. at 1-2. The form also has a statement that Mr. Wons modified with handwritten changes:
(Image Omitted)
Accommodation Request Form at 2.
Mr. Wons further alleges:
The Religious Accommodation, which included accommodations for both the Vaccine Mandate and the invasive COVID-19 nasal and mouth swab testing, stated that Plaintiff's sincerely held religious beliefs for not getting the COVID shot are related to the mark of the beast and Plaintiff's religious beliefs that his body is a temple of the Holy Spirit.
As noted, supra, as part of the Religious Accommodation, Plaintiff was to work with an Accommodation Advisor “to identify reasonable accommodation solutions” and “discuss Thermo Fisher work requirements and policies.”
Plaintiff was never assigned an Accommodation Advisor.
On December 16, 2021, Colleague Services sent an email to Plaintiff which stated that a Religious Accommodation would be approved once Plaintiff agreed to the terms and conditions in an attached acknowledgement letter (“Acknowledgement Letter”). Plaintiff was required to sign the Acknowledgement Letter.
The Acknowledgement Letter required Plaintiff to submit to weekly testing (“Accommodation Testing”) from a designated Thermo Fisher work location.Am. Complt. ¶¶ 31, 34-37 (emphasis added).
Mr. Wons does not attach the December 16, 2021 email or the Acknowledgement Letter.
However, Thermo Fisher attaches these documents to the Motion. ECF No. 21-3. The email is from “Colleague Services [colleagueservices@thermofisher.com].” It says in relevant part:
Hello Richard.
Thank you for submitting your vaccination accommodation request. Please review the attached letter regarding your request.
You must do the following for your accommodation, if approved, to be implemented:
• sign to acknowledge that you have reviewed and understand the terms and conditions of your accommodation
• submit your signed acknowledgement by attaching it to this case.
***Please Note, if you do not attach your signed acknowledgement to this case, your accommodation will not be implemented.
Thank you,
Accommodations TeamECF No. 21-3 at 1. The Acknowledgement Letter is attached to that email and reads:
You requested the following accommodation(s):
accommodation from the Company's vaccination requirement due to your sincerely held religious belief
Your requested accommodation has been Conditionally Approved.
The Company has approved your request for an accommodation from the Company's vaccination requirement due to your sincerely held religious belief.
You will not be required to be fully vaccinated, but you will be required to:
• Submit to a SARS COVID-19 test on a weekly basis at a Thermo Fisher worksite or an approved customer testing site beginning in January 2022.
• Maintain social distancing when possible and wear a Thermo Fisher approved face covering at all times while on-site.
• Acknowledge receipt of this notification by signing the below and returning this fully executed Form to Thermo Fisher by uploading it to your case in this portal.
Failure to comply with these requirements may lead to discipline up to and including termination. Accommodations are subject to additional review and may change at any time based on changes in legal requirements and/or business needs. These requirements will remain in place until you are notified otherwise.
Acknowledgment:
I, ____________, acknowledge receipt of this notification
[ Employee Printed Name]
and understand and agree that I will comply with weekly COVID-19 testing at a Thermo Fisher worksite and wear face coverings and following social distancing protocols while onsite.
Employee Signature DateId. at 3.
Mr. Wons alleges that “[p]rior to the Acknowledgement Letter, Thermo Fisher had not required Plaintiff to submit to any COVID-19 testing.” Am. Complt. ¶ 38. See also id. ¶¶ 13, 33 (alleging that testing had not previously applied to Mr. Wons as a fully remote employee). Mr. Wons further contends:
On December 22, 2021, Plaintiff emailed both Colleague Services and HR. The email requested confirmation that Thermo Fisher would approve the Religious Accommodation to the Accommodation Testing.
On January 5, 2022, Colleague Services notified Plaintiff that HR was responsible for answering questions regarding the Accommodation Testing. Colleague Services also informed Plaintiff that he was required to sign the Acknowledgement Letter. Later that same day, Plaintiff responded to Colleague Services that he could not sign the Acknowledgement Letter until HR answered his questions.Id. ¶¶ 39-40. Mr. Wons does not attach the January 5, 2022 email, but Thermo Fisher attaches it to the Motion. This email is from the same Colleague Services email address and states:
Hi Richard,
Please refer to your local HR for all tests and masking questions. We will need your signed acknowledgement as soon as possible.
Thanks!
Accommodations TeamECF No. 21-4.
Mr. Wons alleges that three weeks after that email:
On January 26, 2022, Colleague Services emailed Plaintiff and demanded that he sign the Acknowledgement Letter by January 31, 2022. If he did not, he would be placed on a 30-day unpaid leave of absence during which time he would have to receive all required doses of the COVID-19 vaccines or be subject to termination at the end of the 30-day period.Am. Complt. ¶ 41. Mr. Wons does not attach the January 26, 2022 email, but Thermo Fisher filed it as Exhibit D to the Motion. ECF No. 22-1 (attachment to notice of errata). This email reads:
Good morning!
We are following up as we have not received your signed Acknowledgement Letter for your accommodation.
You must do the following for your accommodation, if approved, to be implemented:
• sign to acknowledge that you have reviewed and understand the terms and conditions of your accommodation
• submit your signed acknowledgement by attaching it to this case.
***Please Note, if you do not attach your signed acknowledgement to this case, your accommodation will not be implemented.
If we do not receive your signed Acknowledgement by January 31, 2022, you will be put on a 30-day unpaid leave of absence during which time you must receive all required doses of the COVID-19 vaccine or be subject to termination at the end of the leave period.
Thank you,
The Accommodations TeamECF No. 22-1 at 1.
Mr. Wons alleges that when he received the January 26, 2022 email from Colleague Services, “[t]here had been no response from HR regarding Plaintiff's December 22, 2021, email.” Am. Complt. ¶ 42. Therefore:
On January 31, 2022, Plaintiff emailed HR and reminded HR of their obligation to respond to an employee's request for clarification of a company policy. Plaintiff also informed HR that a failure to make an individualized assessment of whether an employee is a direct threat to the safety of a workplace violated Title VII.
On February 1, 2022, approximately six weeks after Plaintiff's email of December 22, 2021, HR responded. Plaintiff had asked if testing was necessary for remote workers who do not work at a Thermo Fisher site. Thermo Fisher responded that, per his accommodation response, Plaintiff was required to test on a weekly basis.
Plaintiff asked if there were non-invasive spit tests available. Thermo Fisher responded that the testing procedure is a standardized procedure7 whether done at home or on site and Thermo Fisher would not be deviating from it. HR never addressed or even acknowledged the Religious Accommodation request to the Accommodation Testing.
[n.7 Thermo Fisher manufactures and produces at least one COVID spit test, which is branded “Thermo Scientific SpeciMAX Saliva Collection Kit.”]
On February 11, 2022, Plaintiff emailed HR and requested that HR actually respond to his questions from the December 22, 2021, email. Plaintiff further
notified HR that he never received an email or any information about the “standardized procedure” for the Accommodation Testing.
On February 22, 2022, Colleague Services denied Plaintiff's Religious Accommodation. Thermo Fisher stated Plaintiff had requested an “accommodation from [Thermo Fisher's] [Accommodation Testing] due to [Plaintiff's] sincerely held religious beliefs.” Thermo Fisher falsely stated that, after “engaging in the interactive process,” Plaintiff had “failed to state a sincerely held religious belief and/or granting a[] testing accommodation would result in an undue hardship on [Thermo Fisher].” Colleague Services also informed Plaintiff that, because his “requested accommodation ha[d] been denied, [Plaintiff] must comply with [Thermo Fisher's] testing requirement. Failure to comply with the testing requirement may be addressed through corrective action up to and including termination of employment.” Thermo Fisher concluded by saying that no further action was needed from Plaintiff, and his case was closed.
On March 3, 2022, HR emailed Plaintiff that, because Colleague Services denied the Religious Accommodation, he would be required to receive the COVID-19 vaccination.
On May 10, 2022, Plaintiff replied to the April 26, 2022, HR email reminding HR of the events which had previously transpired, as well as the EEOC matter.
Plaintiff emailed HR on May 16, 2022, and strongly disagreed that HR had sufficiently answered his questions. HR had refused to engage in any interactive process with Plaintiff regarding numerous Thermo Fisher policies which were conflicting and, in most cases, did not even apply to Plaintiff.
On June 13, 2022, Plaintiff received a final warning that he would be terminated on June 22, 2022, if he was not fully vaccinated by June 16, 2022.
Plaintiff was officially terminated on June 22, 2022.
Plaintiff's Letter of Termination stated Plaintiff was terminated for noncompliance with the Vaccine Mandate.Am. Complt. ¶¶ 43, 45-47, 52, 55, 61, 64-67 (omissions noted).
Thermo Fisher attaches a copy of this email chain. ECF No. 54-1 at 12 (Ex. E).
Thermo Fisher attaches a copy of this email chain. ECF No. 54-1 at 20 (Ex. H). Mr. Wons also quotes most of his May 10, 2022 email in Paragraph 61.
Based on those and many other fact allegations, Mr. Wons brings seven claims for relief: (1) Title VII (42 U.S.C. § 2000e through § 2000e-17) religious discrimination in employment (failure to accommodate); (2) Title VII religious discrimination in employment (disparate treatment); (3) Title VII retaliation; (4) unlawful religious discrimination in employment (failure to accommodate) under Colorado Revised Statute § 24-34-402(1)(a); (5) unlawful retaliation under Colorado Revised Statute § 24-34-402(1)(e)(IV); (6) wrongful termination in breach of employment policy (i.e., the Sixth Claim that is at issue in the Motion); and (7) wrongful termination in violation of public policy. Am. Complt. at 16-39. Mr. Wons seeks several forms of relief. Id. at 39-40.
In the breach of employment policy claim, Mr. Wons incorporates by reference the allegations of Paragraphs 1-67 and further alleges:
Thermo Fisher's accommodation request policy contained in Thermo Fisher's Vaccine Mandate constituted a promise of specific treatment regarding the accommodation process.
The accommodation request policy required that Thermo Fisher assign Plaintiff an Accommodation Advisor who would assist with good-faith interactive dialogue regarding Plaintiff's Religious Accommodation.
Plaintiff was never assigned an Accommodation Advisor.
Thermo Fisher breached the specific promises of treatment set out in its Vaccine Mandate and accommodation request policy, when Thermo Fisher terminated Plaintiff's employment prior to engaging in good-faith interactive dialogue concerning Plaintiff's Religious Accommodation.
Thermo Fisher's discriminatory conduct and breach of employment policies and/or implied contract of employment is the direct and proximate cause [of several forms of damages or injuries.]Am. Complt ¶¶ 170-74 (emphasis added).
II. Legal Standards
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Walker v. Mohiuddin, 947 F.3d 1244, 1248-49 (10th Cir. 2020) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Cummings v. Dean, 913 F.3d 1227, 1238 (10th Cir. 2019) (internal quotation marks omitted). In making this determination, the “court accepts as true all well pleaded factual allegations in [the] complaint and views those allegations in the light most favorable to the plaintiff.” Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018).
Nevertheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a Rule 12(b)(6) motion). Rather, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in a complaint,” and that the allegations must be sufficient to nudge a plaintiff's claims “across the line from conceivable to plausible”).
Courts “disregard conclusory statements and look only to whether the remaining factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. The court must draw all reasonable inferences in favor of the plaintiff in ruling on a Rule 12(b)(6) motion. See, e.g., Swint v. Dish Network, No. 234098, 2023 WL 8074820, at *1 (10th Cir. Nov. 21, 2023), petition for cert. docketed, (citing Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021)).
III. Analysis
The parties agree that Colorado law governs Mr. Wons' contractual claim. Under Colorado law,
an employee hired for an indefinite period of time is an at-will employee, whose employment may be terminated by either party without cause and without notice, and whose termination does not give rise to a cause of action. An employer can be liable for the discharge of an at will employee, however, where an implied contract arises out of company policy and employment manuals or where an employee relies on the policies and manuals to his detriment.Stout v. Gyrodata, Inc., No. 12-cv-00972-RM-KMT, 2013 WL 4522039, at *5 (D. Colo. Aug. 27, 2013), aff'd, 560 Fed.Appx. 765 (10th Cir. 2014) (quoting Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1464 (10th Cir. 1994) (applying Colorado law; internal citations omitted)). However,
[t]he existence of such an at-will relationship may be rebutted, and the employee may demonstrate that the termination of the employment relationship is subject to certain restrictions. Such demonstration must consist of proof that the employer made statements to the employee . . . and that those statements, the circumstances under which they were made, and the employee's reaction thereto, met the requirements . . . for an offer by the employer and the acceptance of that offer by the employee.Soderlun v. Pub. Serv. Co. of Colo., 944 P.2d 616, 619 (Colo.App. 1997) (citing Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987)).
Colorado's “ordinary contract principles” apply in determining whether the employer made an offer that the employee accepted. Keenan, 731 P.2d at 711. Thus, to find an offer by the employer, it must have “manifested [its] willingness to enter into a bargain in such a way as to justify the employee in understanding that his assent to the bargain was invited by the employer and that the employee's assent would conclude the bargain.” Vasey, 29 F.3d at 1464 (internal quotation marks omitted).
“[P]rocedures contained in employee manuals, policies and handbooks may modify or change otherwise at-will employment arrangements.” Fair v. Red Lion Inn, 920 P.2d 820, 825 (Colo.App. 1995) (citing Ness v. Glasscock, 781 P.2d 137 (Colo.App. 1989)). However, if the statement is “merely a description of the employer's present policies or a forecast of the employee's likely career progression, it is neither a promise nor a statement that could reasonably be relied upon as a commitment.” Soderlun, 944 P.2d at 620. Similarly, mere “vague assurances” do not create contractual offers. See Vasey, 29 F.3d at 1465 (commitment to “the dignity and privacy due all human beings,” providing a “safe and healthy workplace,” and commitment to affirmative action were too vague to support implied contract claim).
Mr. Wons asserts both express and implied contract theories. Am. Complt. ¶ 174; Response at 4. An implied contract is based on conduct instead of written or oral words. Tuttle v. ANR Freight Sys., Inc., 797 P.2d 825, 829 (Colo.App. 1990). Therefore,
to succeed on his [implied] contract theory, Plaintiff must show (1) the alleged promise was sufficiently specific so the court could understand the obligation the
employer assumed and enforce the promise according to its terms; (2) the employer's actions manifested an intent to be bound; and (3) consideration.Wolff v. United Airlines, Inc., No. 1:18-cv-00591-RM-SKC, 2020 WL 1130070, at *3 (D. Colo. Mar. 9, 2020), aff'd, 854 Fed.Appx. 972 (10th Cir. 2021) (citing Geras v. Int'l Business Machines Corp., 638 F.3d 1311, 1315 (10th Cir. 2011) (applying Colorado law); Keenan, 731 P.2d at 711).
Thus, the elements that Mr. Wons must plausibly support with fact allegations are the same for either express or implied contract. However, “the existence of an implied contract is generally a fact question,” unless it is barred as a matter of law, such as when “the employer's document contains a disclaimer stating that the policies are not intended to create a contract.” Barden v. King Soopers, No. 12-cv-03373-RM-MEH, 2015 WL 4550427, at *10 (D. Colo. July 29, 2015) (quoting Dodson v. Bd. of Cnty. Comm'rs, 878 F.Supp.2d 1227, 1245 (D. Colo. 2012) (citations omitted)).
Here, Thermo Fisher argues that none of the documents or conduct that Mr. Wons alleges could constitute a contract (express or implied). It argues that the Accommodation Request Form “merely lays out what the requesting party ‘can anticipate,'” which in Thermo Fisher's view is “precisely the type of ‘forecast' of employee expectations or ‘vague assurances' expressly rejected as sufficient to form contracts in Vasey and Soderlun.” Motion at 5. Thermo Fisher further argues that even assuming the Accommodation Request Form could constitute an offer, Mr. Wons did not accept it but rather counteroffered by modifying the terms before signing. Thermo Fisher further argues that even if the Accommodation Request Form suffices as a contract, Mr. Wons cannot plausibly allege that Thermo Fisher breached it because his allegation that he was not assigned an “Accommodations Advisor”-is proved untrue by the December 2021 and January 2022 Colleague Services emails. In Thermo Fisher's view, those emails-sent by “Colleague Services” and signed by the “Accommodations Team”-show that Mr. Wons was assigned an Accommodations Advisor. In the Motion, Thermo Fisher identifies the names of the three individuals who sent the Colleague Services emails. Motion at 8.
As noted above, Mr. Wons responds by identifying not just the Accommodation Request Form and the Vaccine Mandate as the Policies (i.e., the contract) but also the several emails (quoted above) from Colleague Services, the Acknowledgement Letter, his several emails to Colleague Services and HR, and HR's response emails. See Response at 5-7 (identifying Am. Complt. ¶¶ 12, 14, 15, 19, 24, 28, 29, 30, 36-43, 45-47, 61, 170, & 173, and the Accommodations Request Form, Ex. A to the Motion).
This court doubts that Mr. Wons can aggregate all of those documents together to form a contractual policy or policies. See, e.g., Vasey, 29 F.3d at 1464-65 (“we reject Plaintiff's argument that he may aggregate documents issued sporadically by Defendant into a legally binding contract without some showing of the elements of contract as to each document.”). But regardless of what he argues in his Response brief, Mr. Wons actually pleads only the Vaccine Mandate and Accommodations Request Form as constituting a contractual employment policy or an implied contract of employment. Am. Complt. ¶¶ 170-73. Mr. Wons cannot amend his complaint by his response brief. See, e.g., Abdulina v. Eberl's Temp. Servs., Inc., 79 F.Supp.3d 1201, 1206-07 (D. Colo. 2015). This court accordingly treats the contractual claim as based upon the Vaccine Mandate and the Accommodations Request Form. The court considers the several other emails and documents for the context and other elements of the claim, such as breach.
Having thus laid the groundwork for analyzing the contractual claim, this court respectfully recommends finding that Thermo Fisher raises factual issues that cannot be resolved on a Rule 12(b)(6) motion. Without attempting to be comprehensive, this court sees several factual issues in Thermo Fisher's arguments. First, in the context of the Vaccine Mandate and the Accommodation Request Form-which do not contain “disclaimers” of contract-is saying the employee “can anticipate” the several procedures stated therein enough to constitute a contractual offer?
As noted, Thermo Fisher likens its phrase “can anticipate” to the “type of ‘forecast' of employee expectations or ‘vague assurances' expressly rejected as sufficient to form contracts in Vasey and Soderlun.” Motion at 5. But the context here is quite different from either Vasey or Soderlun. In Soderlun, the court noted:
[W]hatever relevance they may have upon the claims for breach of the covenant of good faith, the various written statements contained in PSC's Corporate Code of Business Conduct, enjoining all employees to observe high ethical and moral standards when dealing with other employees, were so indefinitely generic as to be unenforceable under any contract or promissory estoppel theory.
Further, while it is undisputed that, with several rather insignificant exceptions, PSC had not engaged in an involuntary employee lay-off prior to the events giving rise to this controversy, plaintiffs introduced no evidence that PSC had formally adopted such a “no lay-off” policy. And, there is no evidence that PSC had adopted any uniform procedure (such as the distribution of some written announcement) to inform its employees of any such claimed policy.Soderlun, 944 P.2d at 621-22 (emphasis added). Vasey is similar: the court concluded that the employer's “Code of Ethics,” “ranking and compensation memorandum,” and “Credo and equal opportunity memorandum” did not support an implied contract claim. None of the documents contained “detailed salary guidelines” or other detailed terms that would modify the employee's at-will employment. Vasey, 29 F.3d at 1465.
Here, the Vaccine Mandate and Accommodation Request Form are specific in subject matter: they respectively announce Thermo Fisher's COVID-19 vaccine mandate and how the company would administer requests for accommodation from that requirement. This is not at all akin to a general code of conduct, general memoranda, or an unwritten policy. Nor do these documents concern what expectations the employee could have for his career at the company. Rather, Mr. Wons' allegations point to two specific documents that have specific subjects. On the other hand, Thermo Fisher used the phrase “You can anticipate,” and it may be that not all of the provisions in the Accommodation Request Form are sufficiently definite to form a contractual offer. But Thermo Fisher does not cite any cases finding that the mere use of the word “anticipate” exempts the Accommodation Request Form from being an offer as a matter of law. “If the evidence is conflicting or will admit of more than one inference and one view of the evidence would support the existence of a contract, the issue is one for the jury.” Soderlun, 944 P.2d at 621.
Thermo Fisher also raises factual issues concerning whether Mr. Wons' handwritten changes in the Accommodations Request Form (above his signature) are material enough to constitute a counteroffer. Did Thermo Fisher accept that counteroffer, when Colleague Services said his request was conditionally approved if he would sign the Acknowledgement Letter? And was the “conditional approval” email another offer? Did Mr. Wons reject it and make a counteroffer when he eventually signed the Acknowledgement Letter, amending the “Accommodation Testing portion?” Am. Complt. ¶ 51.
This court also concludes there are factual issues concerning whether assignment of Mr. Wons' request to “Colleague Services” constitutes assignment of an “Accommodations Advisor.” If “[t]he Accommodations Advisor” is just any employee in “Colleague Services” (such as the “Job Accommodations Team”) who anonymously emails the employee-the individuals' names that Thermo Fisher identifies in the Motion are not in the emails themselves-then why does the form refer to an “Accommodations Advisor” at all? In its Reply, Thermo Fisher argues that Mr. Wons “now pivots and claims that the accommodations advisors were ‘sinecures' who did not have any authority to engage in the interactive process.” Reply at 10. While that is one of Mr. Wons' arguments (i.e., that the Colleague Services team lacked authority to conduct the interactive process), he also specifically disputes that he “should have known that employees from colleague services who labeled themselves ‘Accommodations Team' were his accommodations advisor.” Response at 16. What the Accommodation Request Form means by an “Accommodations Advisor” is a factual issue that the court cannot resolve on a Rule 12(b)(6) motion.
In addition, there are fact issues concerning what sort of interactive process the Accommodation Request Form contemplated with respect to requests based on religious beliefs, and how (or whether) it contemplated handling requests for accommodation from the testing protocol. The Accommodation Request Form states “we will begin the interactive process,” and “you can anticipate” that “[a]ll participating parties will identify reasonable accommodation solutions,” but it also identifies what the accommodation would be on religious accommodation requests. Am. Complt. ¶ 29(4) (“the accommodation will be wearing Thermo Fisher approved face coverings, testing negative . . . where testing is enabled, and following social distance protocols. . .”). But what does that mean, when the employee also requests a religious accommodation to the testing protocol? This is another issue that the court cannot resolve on a motion to dismiss.
The foregoing is not an exhaustive list of the factual issues raised by Thermo Fisher's motion, but it suffices to show that the court cannot resolve these issues on a Rule 12(b)(6) motion-even considering the documents that Thermo Fisher attaches to its briefs.
Accordingly, this court respectfully recommends denying the motion to dismiss. See, e.g., Stout, 2013 WL 4522039, at *5 (addressing similar contract issues on summary judgment); Barden, 2015 WL 4550427, at *10 (dismissing contract claim on summary judgment). Cf. Helmig v. Univ. of Colorado Bd. of Regents, No. 22-cv-00836-RM-MEH, 2023 WL 5938912, at *6-7 (D. Colo. Sept. 12, 2023) (finding that a claim alleging a property interest or contractual right to continued employment could not be dismissed on a Rule 12(b)(6) motion because the employer relied on “competing policies” that the plaintiff did not reference in the complaint).
IV. Conclusion
For each of the reasons stated above, this court RECOMMENDS that the motion (ECF No. 21) for dismissal of the Sixth Claim be denied.
Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a Magistrate Judge's order or recommendation, any party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. §§ 636(b)(1)(A), (B); Fed.R.Civ.P. 72(a), (b). Failure to make any such objection will result in a waiver of the right to appeal the Magistrate Judge's order or recommendation. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).