* This order and judgment is not binding precedent, e xcept under the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

### January 19, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

LINDA HAYNES, Plaintiff-Appellant,

v. LEVEL 3 COMMUNICATIONS, LLC, Defendant-Appellee. No. 05-1218 (D.C. No. 04-N-1642 (MJW), Consolidated with D.C. No. 04-N-2425 (MJW))

(D. Colo.)

ORDER AND JUDGMENT *

Before KELLY , PORFILIO , and BRORBY , 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 Linda Haynes appeals from the entry of su mmary judgment in favor of defendant Level 3 Communications, LLC (“Le vel 3”). We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM. From March 1999 to June 2001, Haynes worked as a sa les manager at Level 3’s San Francisco office. She alleges that L evel 3 discriminated against her because of her age (she was born in 1954) and gende r by unfairly criticizing her performance, giving away her sales accounts to youn ger, male employees, and requiring her to perform additional duties. When s he reported this discrimination and complained about other work-related issues, she claims Level 3 retaliated against her, in part by placing her on a performanc e improvement plan (“PIP”). Sometime after being placed on the PIP, she went on disability leave. While she was on disability leave, Level 3 terminated her emp loyment as part of a reduction in force (“RIF”). One of the criteria Level 3 used to select employees for the RIF was whether they were on a PIP. In a prior lawsuit, Haynes brought federal claims o f age, gender, and disability discrimination as well as a state-law br each of contract claim (“Haynes I

”). The district court dismissed the federal claim s and declined to exercise supplemental jurisdiction over the state-l aw claim. That case presently is on appeal to this court. Haynes v. Level 3 Communications, LLC , No. 04-1307 (10th Cir. filed Aug. 10, 2004).-3-

Shortly after the dismissal of her first lawsuit, H aynes filed another action in the federal district court setting forth three s tate-law claims for breach of contract and promissory estoppel (“Haynes II ”). Those claims were based on Level 3’s “open door” policy, under which employees could raise workplace issues without fear of retaliation, and on statemen ts that the company was an equal opportunity employer that did not discriminat e. Level 3 moved to dismiss the claims based on a statute of limitations defens e. In the alternative, Level 3 moved for summary judgment on two grounds: (1) that its open door policy and statements that it did not discriminate were too va gue to be enforceable promises; and (2) that Haynes’s disability discrimination cla im was barred by the doctrine of collateral estoppel because the court in Haynes I determined that she was not a qualified individual within the meaning of the Amer icans with Disabilities Act, 42 U.S.C. §§ 12101-213. After the parties completed briefing on Level 3’s m otion, Haynes filed a third lawsuit, this time in state court in Colorado (“Haynes III ”). The complaint in Haynes III

was essentially the same as the complaint in Haynes II but added a fourth claim for relief, that Level 3 breached its promise that an employee could not be laid off while on disability leave. Level 3 removed Haynes III to federal court where it was consolidated with Haynes II. After consolidation, Level 3 filed another motion to dismiss or, in the alternat ive, for summary judgment in1 The district court accepted the parties presumption that, despite the fact

Haynes worked for Level 3 in California, Colorado l aw governs their dispute. -4- order to encompass Haynes III, and the parties incorporated the briefs they had filed in Haynes II

. The district court denied the motion to dismiss. A s to the motion for summary judgment, the court assumed Level 3 discrim inated and retaliated against Haynes and granted the motion for summary j udgment on her first three claims on the ground that the open door policy and the statements that Level 3 did not discriminate were too vague to be enforceable p romises under Colorado law. 1 As to her fourth claim, the court stated that, to t he extent she “may be contending that [Level 3] discriminated against her on the bas is of her disability . . . this claim fails for the same reasons that the other cla ims fail.” App. Vol. IV at 555 n.2. Based on its disposition, the court did not r each the collateral estoppel issue. On appeal, Haynes argues that dismissal of her firs t three claims was erroneous because the statements were not vague. S he also contends that, because Level 3 never specifically addressed her fourth cla im in its motion for summary judgment, the district court erred in considering i t. Level 3 argues that the dismissal of Haynes’s claims on the merits was prop er and that the court’s disposition can be affirmed on the alternate ground that her claims are barred by the applicable statute of limitations.2 Because we affirm on the merits, we do not address Level 3’s contention

that Haynes’s suit is barred by the statute of limi tations. -5- Ordinarily, “when the existence of a contract is in issue, and the evidence is conflicting or admits of more than one inference, i t is for the jury to decide whether a contract in fact exists.” I.M.A., Inc. v. Rocky Mtn. Airways, Inc. , 713 P.2d 882, 887 (Colo. 1986). However, if “the e vidence discloses only a ‘vague assurance,’ rather than a legally enforceabl e promise, then the court must determine the issue as a matter of law.” Soderlun v. Pub. Serv. Co. , 944 P.2d 616, 621 (Colo. App. 1997) (quoting Vasey v. Martin Marietta Corp. , 29 F.3d 1460, 1465 (10th Cir. 1994)). Because the districtcourt determined this issue as a matter of law, we review the entry of summary jud gment de novo, applying the same legal standard as the district court and viewi ng the evidence and drawing reasonable inferences from it in the light most favorable to Haynes. See Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). 2 Haynes maintains that she was told about the open d oor policy at her job interview and received a written copy during her or ientation. However, a copy of the written policy she claims to have received is n ot part of the record. The only written copy of the policy is from the company’s in tranet and bears a revision date of July 2001, after Level 3 terminated her emp loyment. In relevant part, it-6-

provides that “Level 3 maintains an open door polic y at all levels of the Company that is designed to resolve work-related problems a s quickly, fairly, and informally as possible.” App. Vol. I at 174. It a lso provides that “Level 3 will not tolerate retaliation, or unequal treatment dire cted at employee-owners who utilize this Open Door Policy to raise workplace pr oblems.” Id. Additionally, Level 3’s director of human resources testified at his deposition that the company has “a policy that you can talk to whomever you nee d to about whatever issues you may have concerns about” without fear of retali ation. App. Vol. III at 280, 9:23-25. Based on this evidence, the open door pol icy is fairly summarized as one under which employees could raise concerns about workplace issues without fear of retaliation or discrimination, and Level 3 would not tolerate such conduct against an employee who invoked the policy. We conclude that the open door policy is too vague to constitute a contract or support a claim of promissory estoppel. Certainrequirements are common to both a breach of contract and a promissory estoppel claim: [I]n order to constitute an enforceable promise, a statement by [an] employer must meet two requirements. It must discl ose a promissory intent or be one that the employee could reasonably conclude constituted a commitment by the employer. If it is merely a description of the employer’s present policies, it is neither a promise nor a statement that can reasonably be relied upon. In addition, the employer’s statement must be sufficiently definite to allow a court to understand the nature of the obligation undertaken.3 Although there are other prerequisites for the form ation of an implied

contract (such as offer, acceptance, and considerat ion, see Vasey , 29 F.3d at 1464 (applying Colorado law)) or the application of prom issory estoppel (such as detrimental reliance, see id. at 1466), we need not address them. -7- Hoyt v. Target Stores , 981 P.2d 188, 194 (Colo. App. 1998). “Assurances of fair treatment or ‘mere vague assurances’ are unenforcea ble.” Id. (quoting Vasey , 29 F.3d at 1465). 3
In Marsh v. Delta Air Lines, Inc. , 952 F. Supp. 1458 (D. Colo. 1997), the court considered several statements alleged to form an implied contract, including a statement similar to Level 3’s open door policy, “[n]o disciplinary action will be taken against an employee solely for disclosing wro ngdoing.” Id. at 1466 (alteration in original). Applying Colorado law, t he court concluded that this statement did “not set forth any employment terms, explain disciplinary procedures, or detail any prohibited conduct. Inst ead, the statements are best characterized as ‘vague assurances’ that cannot be the basis for an implied
contract.” Id. at 1466-67. Similarly, Level 3’s open door policy does not cont ain any employment terms, define retaliation or discrimination, or state what Level 3 will do if retaliation or discrimination occurs. Thus, the op en door policy is best described as Level 3’s present policy, not an enforceable pro mise. Its meaning is too vague to evidence an intent to be bound or to be a statem ent that Haynes could-8-

reasonably conclude constituted a commitment by Lev el 3. Additionally, the statement does not define Level 3’s obligation prec isely enough to permit the court to understand its nature or “to determine whe ther a contract has been performed.” Vasey , 29 F.3d at 1465 (quotation omitted). Level 3’s oral statements that it is committed to e qual opportunity in employment, which were made at Haynes’s orientationand repeated in writing on company bulletin boards, likewise are general polic y statements, not enforceable promises. Without some detailed employment terms o r a guarantee of employment, equal opportunity statements are not en forceable promises. Id. Although Haynes contends that a human resources rep resentative stated that Level 3’s equal opportunity policy guaranteed equal treatment, that statement, even if true, is merely a vague assurance, not an e nforceable promise. The remaining issue concerns the district court’s d isposition of Haynes’s fourth claim, that Level 3 terminated her employmen t while she was on disability leave in violation of statements to the contrary. As noted above, Haynes asserts that the district court erred in considering the fo urth claim because Level 3 did not specifically address it in its summary judgmentmotion. Although Level 3’s collateral estoppel argument (which the district co urt did not consider) arguably reaches the fourth claim, Level 3 never presented achallenge to the legal sufficiency of the promise Haynes alleges Level 3 m ade to her, that an employee-9-

could not be laid off while on disability leave. T he general rule is that “district courts are widely acknowledged to possess the powerto enter summary judgments, sua sponte , so long as the losing party was on notice that sh e had to come forward with all her evidence.” Graham v. City of Oklahoma City , 859 F.2d 142, 144 (10th Cir. 1988) (per curiam) (quotation o mitted). However, “[i]f a losing party was not prejudiced by the lack of noti ce, we will not reverse simply because the grant of summary judgment came sua sponte.” Ward v. Utah , 398 F.3d 1239, 1245-46 (10th Cir. 2005) In her response in opposition to Level 3’s motion f or summary judgment and again in her opening brief on appeal, Haynes re lies on the human resource director’s deposition testimony that “to lay off an employee because he/she was on disability leave was not permitted by the corpor ation because ‘it would be discriminatory.’” App. Vol. II at 192, ¶ 76 (quoti ng App. Vol. III at 294, 66:5-9) (emphasis added); Aplt. Br. at 13 (quoting App. Vol . III. at 294, 66:5-9) (emphasis added). Level 3 admitted this fact. Thi s is the only evidence in the record related to laying off an employee who is on disability leave. Because Haynes has not indicated that she has any additiona l evidence on this issue, she has not shown prejudice. Accordingly, the districtcourt did not err in considering the fourth claim. The evidence Haynes has provided does not describe a promise that Level 3 would not lay off an employee while she was on disability leave, as alleged in her-10-

fourth claim, but a statement that an employee coul d not be laid off because she was on disability leave. Thus, Haynes has providedno evidence of the promise she claims was breached. Accordingly, the fourth c laim fails. Moreover, the statement that Level 3 is not permitted to lay off an employee because she is on disability leave is merely a reiteration of the company’s equal opportunity policy. As noted above, without some detailed employment te rms or a guarantee of employment, such policies are not enforceable promi ses. Vasey , 29 F.3d at 1465. The judgment of the district court is AFFIRMED

.

Entered for the Court

John C. Porfilio Circuit Judge