                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         January 19, 2006
                             FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                           Clerk of Court

    LINDA HAYNES,

              Plaintiff-Appellant,

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


                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and BRORBY, Circuit Judges.



          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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Linda Haynes appeals from the entry of summary judgment in

favor of defendant Level 3 Communications, LLC (“Level 3”). We have

jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

      From March 1999 to June 2001, Haynes worked as a sales manager at

Level 3’s San Francisco office. She alleges that Level 3 discriminated against her

because of her age (she was born in 1954) and gender by unfairly criticizing her

performance, giving away her sales accounts to younger, male employees, and

requiring her to perform additional duties. When she reported this discrimination

and complained about other work-related issues, she claims Level 3 retaliated

against her, in part by placing her on a performance 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 employment 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 of age, gender, and

disability discrimination as well as a state-law breach of contract claim

(“Haynes I”). The district court dismissed the federal claims and declined to

exercise supplemental jurisdiction over the state-law 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).


                                         -2-
      Shortly after the dismissal of her first lawsuit, Haynes filed another action

in the federal district court setting forth three state-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 statements that the company was an

equal opportunity employer that did not discriminate. Level 3 moved to dismiss

the claims based on a statute of limitations defense. 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 vague to be enforceable promises;

and (2) that Haynes’s disability discrimination claim 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 Americans with Disabilities Act,

42 U.S.C. §§ 12101-213.

      After the parties completed briefing on Level 3’s motion, 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 alternative, for summary judgment in


                                          -3-
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. As to the motion for

summary judgment, the court assumed Level 3 discriminated and retaliated

against Haynes and granted the motion for summary judgment 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 promises under Colorado law. 1

As to her fourth claim, the court stated that, to the extent she “may be contending

that [Level 3] discriminated against her on the basis of her disability . . . this

claim fails for the same reasons that the other claims fail.” App. Vol. IV at 555

n.2. Based on its disposition, the court did not reach the collateral estoppel issue.

      On appeal, Haynes argues that dismissal of her first three claims was

erroneous because the statements were not vague. She also contends that, because

Level 3 never specifically addressed her fourth claim in its motion for summary

judgment, the district court erred in considering it. Level 3 argues that the

dismissal of Haynes’s claims on the merits was proper and that the court’s

disposition can be affirmed on the alternate ground that her claims are barred by

the applicable statute of limitations.



1
     The district court accepted the parties presumption that, despite the fact
Haynes worked for Level 3 in California, Colorado law governs their dispute.

                                          -4-
       Ordinarily, “when the existence of a contract is in issue, and the evidence is

conflicting or admits of more than one inference, it 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 evidence discloses only a

‘vague assurance,’ rather than a legally enforceable 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 district court determined this issue as

a matter of law, we review the entry of summary judgment de novo, applying the

same legal standard as the district court and viewing 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 door policy at her job

interview and received a written copy during her orientation. However, a copy of

the written policy she claims to have received is not part of the record. The only

written copy of the policy is from the company’s intranet and bears a revision

date of July 2001, after Level 3 terminated her employment. In relevant part, it



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 limitations.

                                            -5-
provides that “Level 3 maintains an open door policy at all levels of the Company

that is designed to resolve work-related problems as quickly, fairly, and

informally as possible.” App. Vol. I at 174. It also provides that “Level 3 will

not tolerate retaliation, or unequal treatment directed at employee-owners who

utilize this Open Door Policy to raise workplace problems.” 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 need to about whatever issues

you may have concerns about” without fear of retaliation. App. Vol. III at 280,

9:23-25. Based on this evidence, the open door policy 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. Certain requirements 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 disclose 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.



                                         -6-
Hoyt v. Target Stores, 981 P.2d 188, 194 (Colo. App. 1998). “Assurances of fair

treatment or ‘mere vague assurances’ are unenforceable.” 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 wrongdoing.” Id. at 1466

(alteration in original). Applying Colorado law, the court concluded that this

statement did “not set forth any employment terms, explain disciplinary

procedures, or detail any prohibited conduct. Instead, 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 contain any employment

terms, define retaliation or discrimination, or state what Level 3 will do if

retaliation or discrimination occurs. Thus, the open door policy is best described

as Level 3’s present policy, not an enforceable promise. Its meaning is too vague

to evidence an intent to be bound or to be a statement that Haynes could



3
      Although there are other prerequisites for the formation of an implied
contract (such as offer, acceptance, and consideration, see Vasey, 29 F.3d at 1464
(applying Colorado law)) or the application of promissory estoppel (such as
detrimental reliance, see id. at 1466), we need not address them.

                                         -7-
reasonably conclude constituted a commitment by Level 3. Additionally, the

statement does not define Level 3’s obligation precisely enough to permit the

court to understand its nature or “to determine whether a contract has been

performed.” Vasey, 29 F.3d at 1465 (quotation omitted).

      Level 3’s oral statements that it is committed to equal opportunity in

employment, which were made at Haynes’s orientation and repeated in writing on

company bulletin boards, likewise are general policy statements, not enforceable

promises. Without some detailed employment terms or a guarantee of

employment, equal opportunity statements are not enforceable promises. Id.

Although Haynes contends that a human resources representative stated that

Level 3’s equal opportunity policy guaranteed equal treatment, that statement,

even if true, is merely a vague assurance, not an enforceable promise.

      The remaining issue concerns the district court’s disposition of Haynes’s

fourth claim, that Level 3 terminated her employment 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 fourth claim because Level 3 did

not specifically address it in its summary judgment motion. Although Level 3’s

collateral estoppel argument (which the district court did not consider) arguably

reaches the fourth claim, Level 3 never presented a challenge to the legal

sufficiency of the promise Haynes alleges Level 3 made to her, that an employee


                                         -8-
could not be laid off while on disability leave. The general rule is that “district

courts are widely acknowledged to possess the power to enter summary

judgments, sua sponte, so long as the losing party was on notice that she 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 omitted). However, “[i]f a

losing party was not prejudiced by the lack of notice, 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 for summary judgment

and again in her opening brief on appeal, Haynes relies 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 corporation because ‘it would be

discriminatory.’” App. Vol. II at 192, ¶ 76 (quoting 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. This 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 additional evidence on this issue, she

has not shown prejudice. Accordingly, the district court 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

                                          -9-
fourth claim, but a statement that an employee could not be laid off because she

was on disability leave. Thus, Haynes has provided no evidence of the promise

she claims was breached. Accordingly, the fourth claim 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 terms or a guarantee of

employment, such policies are not enforceable promises. Vasey, 29 F.3d at 1465.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court


                                                    John C. Porfilio
                                                    Circuit Judge




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