Labor & Employment Law Daily Wrap Up, STATE-LAW CLAIMS—10th Cir.: Circle K cashier, fired after confrontation with shoplifter, revives wrongful discharge claim, (Jan 3, 2025)

By Marjorie Johnson, J.D.

The appeals court found that the “cart got before the horse” in the district court’s finding that Colorado would not recognize a public policy self-defense exception.

The Tenth Circuit reinstated a wrongful discharge claim brought by a Circle K Store cashier who was fired for ostensibly violating the company’s “Confront & Chase Policy” after she engaged in physical conduct with a shoplifter who was holding a knife while attempting to steal a pack of cigarettes. Concluding, in a nonprecedential opinion, that the district court erred in prematurely predicting that the Colorado Supreme Court would not recognize a public-policy exception to the at-will employment doctrine for employees who engage in self-defense, the Tenth Circuit reversed summary judgment and remanded for consideration whether there were triable issues that the employee’s actions amounted to self-defense, and if so whether she could establish a causal connection to her termination (Moreno v. Circle K Stores, Inc., No. 24-1058 (10th Cir. Dec. 31, 2024, nonprecedential)).

Confrontation. The employee worked as a cashier for Circle K for many years. On October 4, 2020, a customer in possession of a knife entered the store and demanded that she give him a free box of cigarettes. After she declined, he went behind the counter to take them himself. She grabbed his arms, but he was stronger and managed to grab the cigarettes and left the store. She called the police, and he was later arrested.

Alleged policy violation. Circle K managers later reviewed video-audio recordings taken by the store cameras and terminated her for having violated its “Confront & Chase” (C&C) policy, which instructed workers not to “confront follow, pursue, track, chase, fight or follow [inside and/or outside] any person[s] suspected of shoplifting products and/or cash from the site, beer runs or any other confrontational situation.”

Lawsuit. She sued, alleging Circle K wrongfully discharged her in violation of Colorado public policy by firing her for exercising her right to self-defense as found under the Colorado Constitution, its statutes, and common law. Circle K moved for summary judgment, arguing not only that there was no public policy exception for at-will employees who engage in self-defense, but also that the cashier’s actions did not amount to self-defense, and even if they did, the decisionmakers honestly believed that she was not acting in self-defense and had violated the C&C policy.

Summary judgment. In an opinion granting Circle K’s motion, the district court did not address the two potentially dispositive factual grounds—whether the cashier used self-defense and if so, whether she was fired for using self-defense. Instead, the court predicted that the Colorado Supreme Court would not recognize self-defense as a public-policy exception to the at-will employment doctrine.

The employee appealed, arguing that the district court erred in determining that the right to self-defense is not a public policy exception to the at-will employment doctrine that provides the basis for a wrongful discharge action. She also asked the Tenth Circuit to certify the public-policy question to the Colorado Supreme Court.

Remand for review of factual issues. The parties presented three dispositive issues to the district court: (1) whether the cashier used self-defense, (2) whether Circle K fired her for using self-defense (causation), and (3) whether self-defense could support a wrongful-discharge claim under Colorado’s public-policy exception to the at-will employment doctrine. “The first two issues were narrow, concrete, and fact-bound to this case,” while “[t]he third issue asked an important, unsettled question of state law involving statutory and constitutional interpretation,” explained the Tenth Circuit. Thus, because the district court declined to address the two factual issues and instead made a legal prediction about Colorado law, the “the cart got before the horse.”

As such—and as a federal court sitting in diversity jurisdiction—the Tenth Circuit declined to ponder questions of first impression under state law without first testing whether that legal question even needed to be resolved. Rather, the appeals court vacated and remanded for the district court to undergo a more complete analysis that addressed the “preliminary” and “potentially dispositive” factual issues before reaching the difficult Colorado public-policy issue.

In so ruling, the Tenth Circuit declined Circle K’s invitation to resolve those factual issues on appeal, finding it more appropriate for the district court to address the matter in the first instance. The appeals court also emphasized that “[w]e intimate no opinion about the correctness of the district court’s ultimate decision granting summary judgment,” and directed that if the district court concludes that a triable issue existed as to whether the cashier engaged in self-defense, it should then address whether a reasonable juror could find that she was terminated her because she used self-defense.

The case is No. 24-1058.

Judge: Phillips, G.

Attorneys: Virginia Hill Butler (Rathod Mohamedbhai) for Mary Ann Moreno. Thomas W. Carroll (Littler Mendelson) for Circle K. Stores, Inc.

Companies: Circle K. Stores, Inc.

Cases: Discharge StateLawClaims TortClaims ColoradoNews