## Facts

- Michael Marsh worked for Delta Air Lines for over 26 years and, at the time relevant here, held a customer-facing airport position.
- While off duty and off Delta premises, Marsh wrote a letter to a newspaper criticizing Delta’s cost-cutting decisions, including replacing full-time employees with lower-paid contract workers.
- The published letter used sharp language and argued Delta could not maintain service quality with low-wage labor, and that Delta had betrayed employee loyalty.
- Delta had an internal grievance/reporting process that promised employees they could raise concerns without reprisal; Marsh did not use it before submitting the letter.
- After publication, Delta suspended Marsh without pay, asked him to resign (he refused), and terminated him for “behavior unacceptable for a Delta employee.”
- Marsh pursued an internal appeal, and Delta upheld the termination.
- Marsh sued alleging: (1) wrongful discharge under Colorado’s lawful off-duty conduct statute, (2) breach of contract based on an implied employment contract, and (3) breach of the covenant of good faith and fair dealing.

## Issues

1. Whether terminating an employee for lawful, off-duty, off-premises publication of a critical letter is prohibited by Colorado’s lawful off-duty conduct statute, or permitted under statutory exceptions for (a) a bona fide occupational requirement, (b) a reasonable relation to job responsibilities, or (c) a conflict of interest or its appearance.
2. Whether Delta’s policies, practices, or representations created an implied contract limiting Delta’s at-will right to discharge, and whether Delta breached such a contract.
3. Whether Colorado law permits a claim for breach of the covenant of good faith and fair dealing in the employment context, and if so, on what theory.

## Decision

- Plaintiff’s motion for partial summary judgment on the wrongful-discharge claim was denied.
- Defendant’s motion for summary judgment was granted in part and denied in part.
- The court rejected Delta’s argument that an employee’s generalized “duty of loyalty,” standing alone, categorically establishes a statutory exception under the lawful off-duty conduct statute.
- The court held that factual disputes prevented summary judgment for either side on whether the statutory exceptions applied to Marsh’s letter and termination.
- On the contract-related theories, the court held that Colorado’s at-will presumption controlled but that the record presented fact questions on whether an implied contract existed and what obligations, if any, were created.
- On the covenant of good faith and fair dealing, the court declined to recognize the claim as an independent source of job-security rights, but allowed it only to the extent it rose or fell with any contract found by the fact-finder.

## Legal Principles

- Colorado’s lawful off-duty conduct statute generally prohibits discharge for lawful, off-premises conduct during nonworking hours; the employer bears the burden to prove a statutory exception.
- Statutory exceptions under the lawful off-duty conduct statute are construed narrowly; otherwise the statute’s protection would be largely defeated.
- Broad “disloyalty” or employer-image rationales do not, as a matter of law, satisfy the statute’s “bona fide occupational requirement” exception.
- Whether off-duty speech is reasonably related to job responsibilities, or creates a conflict of interest (or its appearance), is typically fact-dependent and may not be resolvable on summary judgment where competing inferences exist.
- Under Colorado law, employment is presumptively at will, but handbooks, policies, or employer representations may support an implied contract theory depending on the parties’ conduct and reasonable expectations.
- In Colorado employment cases, the covenant of good faith and fair dealing cannot be used to create job-security rights apart from a contract; any covenant theory is derivative of contractual obligations, if proven.

## Conclusion

The court held that Colorado’s lawful off-duty conduct statute can protect an employee’s lawful off-duty public criticism of an employer, and it refused to treat “disloyalty” as a categorical statutory exception; because the applicability of the statute’s exceptions and the existence and scope of any implied contractual limits on discharge turned on disputed facts, the court denied the employee’s request for partial summary judgment and granted the employer only limited summary judgment on the contract-related theories.


Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (D. Colo. 1997)