* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 4 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

THOMAS L. KERSTIEN,

Plaintiff-Appellant,

v. MCGRAW-HILL COMPANIES, INC., a New York corporation; PAUL E. CLECKNER; HOWARD W. SMITH,

Defendants-Appellees. No. 99-1095 (D.C. No. 96-Z-1087) (D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff initiated this action against the defenda nt corporation and two of its management employees following his termination as a vice president of North American sales for Compustat, a division of d efendant McGraw-Hill. In his amended complaint, he alleged that his disch arge constituted a breach of contract based on language in the employee handbook ; that the discharge was wrongful based on the doctrine of promissory estopp el, also based on the handbook; that defendants breached an express coven ant of good faith and fair dealing; that defendants breached certain assurances made to him, violated the Colorado Wage Claim Act, and intentionally interfered with contractual relation s; that the individual defendants conspired to terminate plaintiff’s employment; that all defendants caused plaintiff emotional distress by action constituting extreme and outrageous conduct; and that defendants violate d both state and federal age discrimination statutes. The majority of the state law claims (wrongful disc harge, intentional interference with contractual relations, civil cons piracy, and outrageous conduct), were dismissed on defendants’ motion for summary judgment. The Colorado Wage Claims Act claim was resolved by the parties a nd subsequently dismissed with prejudice. Plaintiff voluntarily dismissed hi s state age discrimination claim, and, following a jury trial on the federal age disc rimination claim, a verdict was entered in favor of defendants.-3-

In this appeal, plaintiff contends there were genui ne issues of material fact with respect to his claims of breach of contract an d promissory estoppel, tortious interference with contractual relations, civil cons piracy, and outrageous conduct.
See Appellant’s Br. at 1-2. He does not challenge the jury verdict on the federal age discrimination claim. Briefly, the underlying facts are as follows. Plai ntiff was the vice president of North American sales with McGraw-Hill’s Compustat Division, a high-level executive position. Defendant Cleckner was the hea d of Compustat and defendant Smith was the vice president of sales and marketing . Smith was plaintiff’s immediate superior. In mid-1995, a Compustat sales employee, who reported to plaintiff, booked a sale to a sister company, an ar rangement subsequently undone by either Cleckner or Smith, apparently because it violated company policies. The employee later contacted plaintiff asking why h e was not receiving his anticipated sales commission and plaintiff made inq uiry of Smith. Smith returned an explanation by voice mail. Plaintiff prepared a voice mail response to the sal es employee, which also forwarded Smith’s voice mail to the employee. The comments plaintiff added to Smith’s voice mail (which plaintiff admitted were i ntemperate and defendants claimed were insubordinate and divisive) were also forwarded (no doubt inadvertently) to Smith.-4-

Smith and Cleckner decided the comments made by pla intiff to the sales employee were insubordinate, undermined Smith’s authority, and had misrepresented the events in question. They met wi th Diane Gunter of the human resources department and a representative of the legal department. Smith, Cleckner, and Gunter discussed the matter wi th corporate headquarters. Termination was discussed as an option. Plaintiff was called into Smith’s office at 9 a.m., Monday, August 21, 1995, at which time the voice mail message was played forplaintiff. Gunter was present at the time. Plaintiff apologized and admi tted he had made a mistake. According to plaintiff, he was given the choice of resigning immediately or being placed on “final warning,” which stated in part that any further action “such as attempting to undermine management, displaying a co ndescending attitude, making negative statements or behaving in a manner detrimental to McGraw-Hill

as determined by [Smith ]” would result in immediate dismissal. Appellees’ Supp. App. at 23 (emphasis added). Plaintiff was told to leave the office and to stay home to consider his decision. Plaintiff admits to being told by both Gunter and C leckner that he could not take a previously scheduled trip to Chicago. Altho ugh he had decided by the following day that he would accept the final warnin g, he knew he needed Smith’s and Cleckner’s permission to be reinstated and lefta message telling Smith and-5-

Cleckner of his decision. Cleckner later responded , accepting plaintiff’s decision to remain on the job under the final warning and st ating he wished to meet with plaintiff the following Monday, August 28. Plainti ff subsequently admitted that the only reference to the Chicago trip he had ever heard from Cleckner was on August 21 and that the communication was not to go. Nevertheless, plaintiff went to Chicago on Wednesday, August 23, and returned August 24. While there he “met with a Compustat salesperson and made several calls on Compustat business.” Appellant’s Opening Br. at 12. Plaintiff subsequently informed Smith and Cleckner he had bee n in Chicago, although Gunter apparently already knew. Cleckner sent plai ntiff a voice mail expressing incredulity at plaintiff’s decision to make the tri p and calling the action “blatant insubordination.” Appellant’s App. at 210. The me ssage further advised plaintiff that he had disobeyed a direct order of his boss (S mith), the general manager (Cleckner), and human resources (Gunter). Id. Following a meeting on Monday, August 28, prior to which Cleckner, Smith, and Gunter had again discussed the situation with corporate headquarters , plaintiff was terminated for insubordination. We review the district court’s grant of summary jud gment 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 app ropriate if the movant1 These claims included the wrongful discharge issues of breach of contract

and promissory estoppel. -6- 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). Under this standard, “we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (further quot ation omitted). A fact is material if, under the substantive law, i t could affect the outcome of the action, and an issue is genuine if a rational jurorcould, on the evidence presented, find in favor of the nonmoving party. See Adams v. Am. Guarantee & Liab. Ins.
Co. , 233 F.3d 1242, 1246 (10th Cir. 2000) (citation om itted). The district court held as a matter of law that McG raw-Hill’s procedures manual contained a clear disclaimer barring claims based on the manual. 1 The third paragraph of the second page of the manua l reads as follows: This manual is given to you for your information an d guidance. It does not represent a contract with employees, an d it is not meant to impose any legal obligation upon them or McGraw- Hill. McGraw-Hill may amend or terminate at any time the policies, plans, and benefits described in this manual as our busine ss needs and experience dictate. Any changes will supersede the contents of this manual. Updates to this manual will be issued whennecessary to describe any changes in the policies or plans. Appellant’s App. at 213.2 We further note that a subsequent unpublished opini on recited that the

disclaimer conflicted with the just cause provisions, see Cronk v. Intermountain Rural Elec. Ass’n , No. 90CA0666, 1992 WL 161811, at *2 (Colo. App. Apr. 2, 1992), and that the Cronk disclaimer was “inconspicuously placed in appendixto the handbook.” Ferrera , 799 P. 2d at 461. -7- The district court was correct in its ruling that “ [w]hether a contract disclaimer in a handbook is conspicuous is a matter of law.” Durtsche v. Am. Colloid Co. , 958 F.2d 1007, 1010 (10th Cir. 1992). In additio n, “[s]ummary judgment denying claims based on a handbook is appr opriate if the employer has clearly and conspicuously disclaimed intent to enter a contract limiting the right to discharge employees.” Ferrera v. Nielsen , 799 P.2d 458, 461 (Colo. App. 1990). The cases relied on by plaintiff for his contract a nd promissory estoppel claims are inapposite. In Cronk v. Intermountain Rural Electric Ass’n , 765 P.2d 619, 623 (Colo. App. 1988), although the employmentmanual had a disclaimer, it not only set forth express events which might be cause for termination, but also listed other reasons as grounds for termination “‘a s long as such legitimate reasons constitute just cause.’” Moreover, the disclaimer itself was added after the plaintiff had commenced employment. 2 See id. In Allabashi v. Lincoln National Sales Corp. of Colorado-Wyoming , 824 P.2d 1, 2-3 (Colo. App. 1991), notwithstanding a handbook disclaimer providing that employees were hired “‘for no fixed period of time’ and that employment ‘may by terminated by the-8-

employee or the Company at will,’” the other docume nts given to employees contained procedures and policies requiring just cause for termination and providing for specific procedures to be followed inthe event of a dismissal. Finally, in Evenson v. Colorado Farm Bureau Mutual Insurance Co. , 879 P.2d 402, 409 (Colo. App. 1993), the court foun d that a question of fact existed as to whether the company’s disciplinary pr ocedures were treated as mandatory and binding, thus supporting plaintiff’s claim of breach of an implied employment contract. The court also held that the disclaimer provisions, which stated that the employee handbook was not intended to create or be construed as a contract, were not conspicuous. Id. However, unlike Evenson , in which the court held that “an employer may nevertheless be fo und to have manifested an intent to be bound by its terms if the manual conta ins mandatory termination procedures or requires ‘just cause’ for termination,” id. , the manual in question here states only that the company’s basic policy is to resort to dismissal only where there is reasonable cause. Appellant’s App. at 187. Nonetheless, a statement that is merely a description of policy does not constitute a promise or commitment by an employer. See George v. Ute Water Conservancy Dist. , 950 P.2d 1195, 1199 (Colo. App. 1997). Thus as not ed by the district court, these cases are all factually distinguishable.-9-

Plaintiff’s theory of promissory estoppel based on the manual must also fail. To establish such a theory, he must show that (1) the employer should reasonably have expect ed the employee to consider the employee manual as a commitment fro m 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 enfor cement of the termination procedures. Vasey v. Martin Marietta Corp. , 29 F.3d 1460, 1466 (10th Cir. 1994) (citing Continental Air Lines, Inc. v. Keenan , 731 P.2d 708, 712 (Colo. 1987)). The manual provisions covering termination providedthat McGraw-Hill’s basic policy is to dismiss or demote an employee “ only where there is reasonable

cause , as determined in the judgment of management and H uman Resources.” Appellant’s App. at 187 (emphasis in original). Th is language, however, clearly establishes the right of management to terminate an employee under the circumstances presented here, particularly in view of the express provision in the final warning that any further action as determined by defendant Smith to be detrimental to McGraw-Hill, as determined by defend ant Smith, would result in plaintiff’s immediate dismissal. Plaintiff has failed to demonstrate that McGraw-Hill should have reasonably expected him to consider the policy as a commitment, that he relied on the manual’s statem ent to his detriment or that injustice can be avoided only by enforcement of the policy. See Bullington v. United Air Lines, Inc. , 186 F.3d 1301, 1322 (10th Cir. 1999).-10-

Plaintiff also relies on the “assurances” he claims he received on August 21 that he was suspended pending the resolution of whe ther he would resign or accept the final warning as a condition of continue d employment. He further states that he relied on Gunter’s alleged statement --that if he accepted the final warning he would be back on the job--for his decisi on to travel to Chicago. Assuming for purposes of the summary judgment motio n that these statements were made, they do not alter the at-will nature of plaintiff’s employment. Plaintiff admitted he knew he needed permission to go to Chicago and that permission had been expressly denied on three diffe rent occasions. Nothing in the alleged assurances altered that denial or his u ltimate termination for traveling to Chicago in contravention of the final warning. Also as part of his breach of contract claim, plain tiff claims defendants breached an express covenant of good faith and fair dealing, relying on Decker v. Browning-Ferris Industries of Colorado, Inc. , 931 P.2d 436 (Colo. 1997). In Decker , the Colorado Supreme Court recognized that such acovenant could become a term of an employment agreement. Id. at 443. Insofar as plaintiff alleges that such a covenant is stated in the compa ny’s policy manual, we have previously determined that the manual did not creat e a contractual obligation. Where “the evidence discloses only a ‘vague assuran ce,’ rather than a legally enforceable promise, then the court must determine the issue as a matter-11-

of law.” Soderlun v. Public Serv. Co. of Colo. , 944 P.2d 616, 621 (Colo. App. 1997) (quoting Vasey , 29 F.3d at 1465). Moreover, a covenant of good f aith and fair dealing does not “inject new substantive terms into a contract or change its existing terms.” Id. at 623. “Such a covenant, therefore, cannot limitan employer’s right to discharge without cause, unless there is an express or implied promise, independent of the covenant of good faith itself, restricting that right.” Id. The oral assurances made by Gunter (that if he ac cepted the final warning he would be “back on the job”) and the deposition test imony of Smith (that he had told those who reported to him it was his policy to treat people fairly) and Cleckner (“we say we want to treat people fairly”) are not sufficiently definite as a matter of law to support the breach of contract claims. See Vasey , 29 F.3d at 1465; Dupree v. United Parcel Serv., Inc. , 956 F.2d 219, 222-23 (10th Cir. 1992) (statement that “‘We Treat our People Fairly and Without Favoritism’” not specific enough to create implied contract; lik ewise oral assurances too vague to create implied contract); see also Valdez v. Cantor , 994 P.2d 483, 487 (Colo. App. 1999) (questioning whether general stat ement by employer that employee will be treated fairly would be sufficientto support judicially enforceable obligation); Hoyt v. Target Stores , 981 P.2d 188, 194 (Colo. App. 1998) (trial court erred in denying motion for dire cted verdict on good faith and-12-

fair dealing claim where basis was vague assurance of fair and consistent treatment). The district court correctly determine d that this claim must fail. Next, plaintiff contends genuine issues of material fact exist as to his claim against Smith and Cleckner for tortious interferenc e with his contract with McGraw-Hill. We disagree. Under Colorado law One who intentionally and improperly interferes with the performance of a contract (except a contract to mar ry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to l iability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract. Trimble v. City & County of Denver , 697 P.2d 716, 726 (Colo. 1985) (citations omitted). As we have earlier stated, plaintiff did not have acontract with McGraw-Hill. “To defeat the presumption of ‘at wil l’ employment in Colorado, [a plaintiff] must demonstrate an express stipulati on as to the duration of employment in exchange for consideration over and a bove [his] existing performance.” Davies v. Philip Morris, USA , 863 F. Supp. 1430, 1440 (D. Colo. 1994) (further quotation omitted). Because the emp loyment manual did not create a contract, plaintiff remained at all times an at w ill employee. “In Colorado, employment is generally at-will and an employer may terminate an employee without cause and without notice.” Decker v. Browning-Ferris Indus. of Colo.,
Inc. , 947 P.2d 937, 939 (Colo. 1997) (further quotationomitted).-13-

Moreover, this claim required employer interference with a contractual relationship. There is simply no showing that Smith and Cleckner were motivated solely by a desire to induce McGraw-Hill to breach any contract with plaintiff or to interfere in any contractual relationship betwee n McGraw-Hill and plaintiff.
See Meehan v. Amax Oil & Gas, Inc. , 796 F. Supp. 461, 465 (D. Colo. 1992). Plaintiff concedes he was told that the basis for h is termination was his insubordination. Appellant’s Br. at 23. His argum ent that the termination “was so unreasonable that the only possible motivat ion was personal malice,”

see id. at 24, is pure speculation. Plaintiff’s claim for civil conspiracy is also with out a legal basis. In order to establish a case of civil conspiracy, Colorado l aw requires “(1) action of two or more persons; (2) common object to be accomplished; (3) meeting of the minds on the object or course of action; (4) one or more unlawful acts; and (5) damages as a proximate result thereof.” White v. Lincoln Plating Co. , 955 F. Supp. 98, 101 (D. Colo. 1997) (citing Pittman v. Larson Distrib. Co. , 724 P.2d 1379, 1389-90 (Colo. App. 1986)). However, a corporationand its employees do not constitute the requisite two or more persons if the employees are acting “on behalf of the corporation and not as individual s for their individual advantage.” Pittman , 724 P.2d at 1390. Plaintiff has failed to establ ish that Smith and Cleckner acted for their individual advan tage as alleged in his amended-14-

complaint. The district court correctly entered su mmary judgment for defendants on this claim. Finally, the district court granted summary judgment on plaintiff’s claim of outrageous conduct. Plaintiff has failed to demons trate any facts showing that defendants’ conduct was outrageous. To be liable f or the intentional infliction of emotional distress (outrageous conduct under Colora do common law), defendants’ conduct “must be more than unreasonable, unkind or unfair; it must truly offend community notions of acceptable conduct.” Grandchamp v. United Air Lines,
Inc. , 854 F.2d 381, 383 (10th Cir. 1988). There is simply no evidence that the actions taken by defendants rose to the level of “‘ atrocious and utterly intolerable’ conduct required for an outrageous conduct claim.” Wilcott v. Matlack, Inc. , 64 F.3d 1458, 1465 (10th Cir. 1995) (quoting Rugg v. McCarty , 476 P.2d 753, 756 (Colo. 1970)).
AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge