Labor & Employment Law Daily Wrap Up, STATE-LAW CLAIMS—D. Colo.: Question certified to Colorado Supreme Court regarding public policy exception for employee acting in self-defense, (May 12, 2025)

By Ronald Miller, J.D.

If there is a public-policy exception to the at-will employment doctrine based on the exercise of self-defense, an employer cannot insulate itself from liability by falling back on its workplace policies.

On remand from the Tenth Circuit, a federal district court in Colorado certified to the Colorado Supreme Court the question of whether Colorado law recognizes a public policy exception to the at-will employment doctrine that allows an employee to bring a wrongful termination claim when the employee is terminated for actions taken in self-defense. Here, the employee was terminated after she confronted an armed robber during a shift at a convenience store, and she sued for wrongful termination. After the district court granted the employer’s motion for summary judgment, the Tenth Circuit reversed that ruling on appeal. Thereafter, the district court concluded that it was not appropriate to grant the employer summary judgment on the basis that the employee was not acting in self-defense (Moreno v. Circle K Stores, Inc., No. 22-cv-02327-NYW-STV (D. Colo. May 9, 2025)).

Wrongful termination claim. The employee was terminated from her employment with a convenience store after she confronted an armed robber during one of her shifts. She sued the employer for wrongful termination and intentional infliction of emotional distress (IIED), arguing that she was terminated for exercising self-defense against the robber and that her termination violated Colorado public policy.

The employer moved for summary judgment on both of the employee’s claims. It argued that the employee’s wrongful termination claim must fail because: (1) Colorado law does not recognize a self-defense public policy exception to the at-will employment doctrine; (2) she was not acting in self-defense; and (3) the employer’s decisionmakers did not fire her for engaging in self-defense. In response, the employee argued that: (1) the court should recognize a public policy exception to the at-will employment doctrine for employees terminated for actions taken in self-defense; and (2) that she was acting in self-defense when she confronted the robber and was fired for that reason.

With respect to the wrongful termination claim, the court granted the employer’s summary judgment motion after declining to recognize “a new type of public-policy exception to Colorado’s at-will employment doctrine.” The employee appealed.

Tenth Circuit ruling. On December 31, 2024, the Tenth Circuit vacated the district court’s order. Specifically, the Tenth Circuit framed the case as presenting three potentially “dispositive issues”: “(1) whether the employee used self-defense, (2) whether the employer fired her for using self-defense, and (3) whether self-defense could support a wrongful-discharge claim under Colorado’s public-policy exception to the at-will employment doctrine.”

The Tenth Circuit directed the district court on remand to focus on the first two issues and ascertain whether either of those issues would be dispositive of the case before addressing the third issue, which presents a novel question of state law.

Remand ruling. On remand, the district court reinstated the employer’s motion for summary judgment and permitted the employee to move to certify the unsettled question to the Colorado Supreme Court.

Confrontation policy. The district court first addressed the two fact-based issues identified by the Tenth Circuit before turning to the motion to certify. The employer maintains a “Confront & Chase Policy” that instructs employees not to confront follow, pursue, track, chase, fight or follow any person[s] suspected of shoplifting products and/or cash from the site. It also states that the “failure to follow” the Policy “will result in immediate termination.”

The employee was terminated after an October 4, 2020, incident in which she confronted a knife wielding robber. She claimed that she was terminated for acting in self-defense, but the employer contended that she was terminated for violating the Confront & Chase Policy.

Self-defense. According to the employer, it was undisputed that the employee was not acting in self-defense when she confronted the robber. It based its argument on the fact that the robber did not threaten the employee with a knife, and he did not verbally threaten her. For her part, the employee argued that whether she acted in self-defense was a factual dispute that must be resolved by the jury.

The court found that video surveillance footage of the encounter did not utterly discredit the employee’s version of the events or that she engaged the robber in self-defense. The court determined that when the parties present different versions of events and support their positions with conflicting evidence, it is up to the jury, not the court, to review the evidence and draw conclusions from that evidence. Finding that a reasonable jury could conclude that the employee acted in self-defense when she made contact with the knife-wielding robber, the court concluded that summary judgment in the employer’s favor was not appropriate on this basis.

Termination for acting in self-defense. In the alternative, the employer argued that “at the very least,” no reasonable jury could conclude that the employee was terminated because she acted in self-defense, such that her wrongful termination claim must fail. The parties disputed the actual basis for the termination decision. While the employer argued that its decisionmakers honestly believed that the employee was not acting in self-defense and terminated her for violating the Confront & Chase Policy, the employee argued that she was fired because she acted in self-defense.

As an initial matter, the court rejected the employer’s framing of the issue. If there is a public-policy exception to the at-will employment doctrine based on the exercise of self-defense, an employer cannot insulate itself from liability by falling back on its workplace policies.

Moreover, the court concluded that genuine disputes of fact preclude summary judgment on this issue. The court did not find that the decisionmakers’ explanations dispositive of the issue. Further, there was evidence was the employee told a decisionmaker that she acted in self-defense prior to her termination. If a jury were to conclude that the employee’s contact with the robber was carried out in self-defense, then a reasonable jury could conclude that she was terminated for acting in self-defense. Accordingly, summary judgment is not appropriate on this basis.

Motion to certify. The employee asked the court to certify the following question to the Colorado Supreme Court: “Is the right to self-defense against an unprovoked physical assault a public policy exception to the at-will employment doctrine that provides the basis for a wrongful discharge action?” The employer countered that the Motion to Certify is premature; the Colorado Supreme Court has articulated a “clear and principled course” to decide the unsettled question; and the Tenth Circuit has declined to certify similar questions to state high courts, among other reasons.

Here, the district court found it appropriate to certify the unsettled question in this case to the Colorado Supreme Court. First, resolution of the question may be, and likely is, determinative of this action. Second, the issue presents a novel question of important state public policy that is most appropriately answered with further guidance from Colorado’s high court. The court disagreed with the employer’s contention that the relative importance of a state-law question is not a factor this court should consider in its certification decision.

IIED claim. As to whether the employer was entitled to summary judgment on the employee’s IIED claim, the district court declined to revisit those issues at this juncture and held the remainder of the employer’s motion for summary judgment in abeyance.

The case is No. 22-cv-02327-NYW-STV.

Judge: Wang, N.

Attorneys: Iris Halpern (Rathod Mohamedbhai) for Mary Ann Moreno. Nicholas Hankins (Littler Mendelson) for Circle K Stores, Inc.

Companies: Circle K Stores, Inc.

Cases: StateLawClaims Discharge TortClaims ColoradoNews