                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                               February 3, 2014
                                 TENTH CIRCUIT
                                                             Elisabeth A. Shumaker
                                                                 Clerk of Court

 GUY DEFAZIO,

          Plaintiff-Appellant,
                                                       No. 13-1197
 v.                                          (D.C. No. 1:11-CV-03357-WJM-
                                                          KLM)
 STARWOOD HOTELS & RESORTS                              (D. Colo.)
 WORLDWIDE, INC., a Maryland
 corporation,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before LUCERO, HOLLOWAY, and GORSUCH, Circuit Judges.


      Guy DeFazio used to work for Starwood as a general maintenance engineer

at the company’s resort in Steamboat Springs. But eventually the relationship

soured and he was let go. He says the company fired him in retaliation for



      *
         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) and 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order and judgment is not binding precedent, except under the doctrines of law of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.
reporting to his bosses a mold problem in the hotel. In this diversity action he

seeks damages under Colorado state law for his dismissal.

         The first difficulty Mr. DeFazio confronts is that he served as an at-will

employee. In Colorado, that generally means the employment relationship can be

terminated by either party for any reason at any time. See, e.g., Martin Marietta

Corp. v. Lorenz, 823 P.2d 100, 104-05 (Colo. 1992). Some exceptions to the

general rule exist, of course, but the district court found that none applied here

and dismissed Mr. DeFazio’s claim at summary judgment. Before us, Mr.

DeFazio insists two exceptions save his suit. We have carefully considered each

possibility but at the end of the day find ourselves constrained to agree with the

district court’s judgment otherwise.

                                            *

         Mr. DeFazio first asks us to invoke the doctrine of promissory estoppel.

He claims that Starwood made an implied promise in its employee handbook that

it would not retaliate against employees for reporting health and safety issues — a

promise it has now breached, a breach it can and should be held to account for in

court.

         To state a promissory estoppel claim under Colorado law, an employee

must show four things: (1) the employer made a promise to him; (2) the employer

should have reasonably expected that its promise would induce action or

forbearance by the employee; (3) the employee reasonably relied on the promise

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to his detriment; and (4) the promise must be enforced to prevent injustice.

Cherokee Metro. Dist. v. Simpson, 148 P.3d 142, 151 (Colo. 2006).

      We agree with the district court that Mr. DeFazio’s claim fails on the first

three elements. To be sure, Starwood’s Code of Business Conduct includes a

provision stating, “[i]t is our policy not to discriminate or retaliate against any

associate who reports any violations of our policies, provides evidence or who

otherwise participates in an investigation in good faith.” R. at 116. To be sure,

Colorado law sometimes permits promissory estoppel claims predicated on

personnel policy statements like this one. See, e.g., Cont’l Airlines, Inc. v.

Keenan, 731 P.2d 708, 712 (Colo. 1987). But Starwood’s code of conduct

proceeds to inform employees that “[n]either the Code nor our policies are

intended, and do not in any way, constitute an employment contract or an

assurance of continued employment. We do not create any contractual rights by

issuing the Code or other policies.” R. at 116. In addition, Starwood’s code

expressly reserves the company’s right to “amend, modify or waive any

provisions of the Code or our policies in our sole discretion.” Id. These two

disclaimers make quite clear, then, that the code of conduct may represent the

company’s aspirations for itself (aspirations the company chooses to share with

its employees and perhaps boast about), but the code does not represent a firm

promise to employees that they can reasonably rely upon. Indeed, it is settled law

in Colorado that where, as here, “the handbook contains such . . . clear and

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conspicuous disclaimer[s,] . . . the handbook will not be construed as a contract

limiting the employer’s right to discharge its employees.” George v. Ute Water

Conservancy Dist., 950 P.2d 1195, 1198 (Colo. App. 1997); cf. Geras v. Int’l Bus.

Machs. Corp., 638 F.3d 1311, 1316 (10th Cir. 2011).

                                          *

      However that might be, Mr. DeFazio says he can still bring a claim for

wrongful discharge in violation of public policy. He is quite right that Colorado

law recognizes a cause of action along these lines even for at-will employees.

See Rocky Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 523-25 (Colo.

1996). But to prevail Colorado requires an employee to prove various elements,

including (as relevant here) that the employer directed him to violate some

specific statute, regulation, or professional code related to public health, safety or

welfare, or some clearly expressed public policy related to his responsibility as a

citizen or his rights or privileges as a worker, or prohibited him from performing

a public duty. Lorenz, 823 P.2d at 109. And this is a burden Mr. DeFazio has

simply failed to carry.

      As the district court noted, Mr. DeFazio has not identified “any clearly-

expressed public policy that was implicated by his actions.” R. at 275. In saying

this much, we do not mean to suggest there isn’t any such policy. The ledgers of

the law are long, the rule books replete. It doesn’t stretch our imagination to

think that lurking somewhere in Colorado law lies some specific provision that

                                         -4-
might cover the situation we face. Intuitively, after all, if he is to be believed

(and believed he must be at summary judgment) Mr. DeFazio was seeking to

address a mold problem, perhaps a health hazard, and that’s very possibly a

matter implicated in some way by some statute or regulation.

      But to make out a claim for wrongful discharge in violation of public

policy in Colorado, a claimant must do more than leave a court with that kind of

conjecture. A claimant bears the burden of identifying for the court some

specific, “clearly mandated” public policy in play; even “broad hortatory

statement[s]” in the law won’t do. Mariani, 916 P.2d at 525; see also Lorenz, 823

P.2d at 107 (requiring a “clear mandate of public policy”); Jaynes v. Centura

Health Corp., 148 P.3d 241, 243-44 (Colo. App. 2006). And it is in this respect

that Mr. DeFazio falls short, for he has failed to identify any statute, rule, or

public policy implicated by his dismissal. There may be one, a future employee

in his shoes may succeed in identifying one, but Mr. DeFazio has not. He did not

do so in district court, and he has not done so on appeal even after being put on

notice of this shortcoming. That alone requires dismissal of his claim, just as the

district court held. 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

                                          -5-
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. Kearl, 205 P.3d at 500. In Haynes, we

encounter not only a non-binding district court opinion and an unpublished one at

that but a situation very much like the one in Kearl. In Haynes, as in Kearl, the

plaintiff sought to expose her employer’s violations of legal duties it owed the

government. We do not question that it may be a violation of clearly expressed

Colorado public policy to retaliate against an employee for opposing or seeking to

expose a fraud or deception on the government, but Mr. DeFazio simply does not

allege any such thing took place in this case. He says he complained to his

employer about mold issues, but never suggests his employer sought to defraud or

mislead any governmental entity in any way. Whether a plaintiff in his shoes

could or could not make out such an allegation, we do not profess any answer.

We take cases as they come, and in this one Mr. DeFazio simply does not make

any of the allegations necessary to bring his case within the rule of Kearl.

      The judgment of the district court is affirmed.


                                       ENTERED FOR THE COURT


                                       Neil M. Gorsuch
                                       Circuit Judge




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