FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        March 27, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
TERRY A. STOUT, an individual,

             Plaintiff - Appellant,

v.                                                        No. 13-1393
                                              (D.C. No. 1:12-CV-00972-RM-KMT)
GYRODATA, INC., a Texas corporation,                       (D. Colo.)

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
BALDOCK, Circuit Judge.


      Plaintiff Terry A. Stout appeals the grant of summary judgment in favor of his

previous employer, Gyrodata, Inc. Plaintiff alleged wrongful termination in violation

of public policy and several breach of contract claims. We have jurisdiction under

28 U.S.C. § 1291 and affirm.


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      “We review a district court’s decision to grant summary judgment de novo,

applying the same standard as the district court.” Squires v. Breckenridge Outdoor

Educ. Center, 

, 872 (10th Cir. 2013) (internal quotation marks omitted).

Summary judgment is appropriate if “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Colorado law applies in this diversity case. 

.

      The district court’s order accurately and thoroughly details the factual

background; thus, we provide only a very brief summary. Plaintiff was a senior

engineer and operations coordinator for Gyrodata, a privately held oil service

company. He supervised employees doing field survey work in confined areas of

limited space, referred to as “confined space entries” in Occupational Safety and

Health Administration (OSHA) regulations. OSHA regulations specify safety

practices and procedures for closed space entries. Plaintiff reported safety concerns

to Gyrodata relating to confined space entries, and sought additional training and

equipment, all of which Gyrodata denied. Plaintiff’s last request was in May 2011.

In August 2011, Gyrodata terminated Plaintiff for poor job performance.

      Plaintiff filed a complaint in Colorado state court alleging he was wrongfully

discharged for reporting safety concerns in violation of public policy and asserting

breach of employment contract claims. Gyrodata removed the case to federal court

based on diversity jurisdiction, then moved for summary judgment. Gyrodata argued

that, under applicable Colorado law, OSHA had sole jurisdiction over Plaintiff’s


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whistleblowing claim. It also argued that Plaintiff’s employment had been “at will”

and he had no written or implied employment contract with Gyrodata.

      The district court ruled that Plaintiff’s public-policy wrongful-discharge claim

was not available under Colorado law because OSHA’s anti-retaliation provision,

29 U.S.C. § 660(c), provided a statutory remedy for his allegations. Section § 660(c)

prohibits retaliatory discharge or discrimination against employees reporting safety

violations. The district court ruled that “‘Colorado law is clear that a separate

public-policy wrongful-discharge claim is not available where [a] statute . . . provides

a wrongful discharge remedy.’” Order, Aplt. App. at 303 (quoting Miles v. Martin

Marietta Corp., 

, 74 (D. Colo. 1994)); see also Caspar v. Lucent

Techs., Inc., 

, 1249 (D. Colo. 2003) (“The Colorado courts have

expressly disallowed [the] application [of a public-policy wrongful-discharge claim]

where a statute provides a wrongful discharge remedy.”). The district court cited

Colorado Supreme Court and appellate court rulings that specifically rejected

public-policy wrongful-discharge claims where OSHA’s § 660(c) provided the

plaintiff with a wrongful discharge remedy. See Order, Aplt. App. at 303-04 (citing

Corbin v. Sinclair Mktg., Inc., 

, 267 (Colo. App. 1984) and Martin

Marietta Corp. v. Lorenz, 

, 107 n.5 (Colo. 1992) (en banc) (confirming

Corbin)).

      On appeal, Plaintiff argues these Colorado cases are distinguishable because

the plaintiffs in those cases had filed an OSHA complaint, whereas he had not (and


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now cannot, because § 660(c) requires the complaint be filed within thirty days of the

alleged retaliatory action). We find no merit in this argument. As the district court

explained, § 660(c) was an available remedy to Plaintiff when he was terminated and

his failure to avail himself of that remedy does not entitle him to now assert a

common law public policy claim. Plaintiff seeks to persuade this court that OSHA’s

statutory remedy should not preclude his common law claim, urging us to rely on

reasoning adopted by Kansas state courts. Again, this argument lacks merit. Plaintiff

asserted a Colorado common law public policy claim, which is governed by Colorado

law. See, e.g., Yousuf v. Cohlmia, 

, 47 (10th Cir. 2014) (“[T]he task of a

federal court sitting in diversity is not to reach our own judgment regarding the

substance of the common law, but simply to ascertain and apply the state law.”

(internal quotation marks omitted)). Plaintiff’s claim that the district court

erroneously failed to consider evidence in the record, is, quite simply, false. The

district court’s order frequently cited and referred to the operative facts in the

evidentiary record, including Plaintiff’s deposition. We find no error in the district

court’s summary judgment dismissal of the public policy wrongful discharge claim.

      Plaintiff also asserted claims for breach of an implied contract of employment,

promissory estoppel, and breach of a covenant of good faith and fair dealing. He

argued an implied employment contract was created by Gyrodata’s representation in

its employment manual that it would follow applicable law in terminating employees,

and that Gyrodata had a progressive discipline policy. The latter claim was based


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solely on his testimony that he knew some employees had not been terminated

without prior warnings. It is, however, undisputed that Plaintiff had no written

employment contract, and his employment handbook stated his employment was “at

will”; that he could be terminated at any time, with or without notice or cause; and

that this “at will” status could not be modified except by a specific written agreement

signed by the President of Gyrodata. Aplt. App. at 94-95, 112-13. Moreover,

Plaintiff signed an acknowledgment that he understood his employment was “at

will,” that he could be terminated at any time without notice or cause, and that no

Gyrodata manager or employee had any authority to promise him continued

employment. 

Under Colorado law, termination procedures in an employee

manual may constitute an implied contract of continued employment if, among other

factors, the employer communicated an offer “in such a way as to justify the

employee in understanding that his assent [to that offer] was invited.” Cont’l Air

Lines, Inc. v. Keenan, 

, 711 (Colo. 1987) (en banc). The district court

found that Plaintiff presented no evidence that Gyrodata ever did anything to

communicate such an offer or to contradict the clear statement in its manual that

employment was at will. It ruled that there was no evidence or any verbal or written

agreement that Gyrodata ever promised to give Plaintiff warnings prior to

termination, and its promise to follow applicable law was simply an acknowledgment

it was required to follow the law.




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      On appeal, Plaintiff argues the district court erroneously made a factual

determination that Gyrodata had not promised him continued employment. We

disagree. The district court applied summary judgment standards to rule, correctly,

that Plaintiff failed to come forward with any specific evidence creating a genuine

issue as to whether Gyrodata created an implied contract of continued employment or

made any related promise to, or covenant with, Plaintiff. See Fed. R. Civ. P. 56(a)

(describing summary judgment standards). We find no error in the district court’s

grant of summary judgment to Gyrodata on Plaintiff’s contract claims.

      The judgment of the district court is affirmed.


                                               Entered for the Court


                                               John C. Porfilio
                                               Senior Circuit Judge




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