Corey Forbes, an employee of Best Buy, tested positive for COVID-19 in 2021 and invoked the company's specific pandemic policy, which required a ten-day isolation period and symptom-free status before returning to work. After being cleared to return on December 20, 2021, Forbes missed his scheduled shifts on December 20, 21, and 22. Although he texted his supervisor on December 21 stating he would return on December 22, he failed to appear and did not provide prior notice for the missed shifts. Best Buy terminated Forbes for violating its standard attendance policy, which mandates notification at least one hour before a shift and allows for termination after three consecutive days of unexcused absence. Forbes sued, claiming his termination violated the Healthy Families and Workplaces Act and the Public Health Emergency Whistleblower Act, arguing he was fired for using the COVID-19 policy or complaining about public health orders. The district court granted summary judgment to Best Buy, and Forbes appealed to the Tenth Circuit.
The Tenth Circuit conducted a de novo review of the summary judgment, applying the standard that the employer must show a right to judgment as a matter of law and the absence of a genuine dispute of material fact. The court focused on the statutory requirements for retaliation claims under Colorado law, which require proof that the employer acted with retaliatory intent. The court found that the undisputed facts demonstrated Forbes violated the attendance policy by missing three straight days without the required notice, even though he had been medically cleared to return. The court noted that Forbes admitted to telling his supervisor he would return on December 20 but failed to do so. Forbes attempted to introduce evidence regarding sick pay and accrued leave, but the court found this evidence irrelevant to the issue of retaliatory intent because he was not on sick leave during the specific days he missed. Furthermore, the court dismissed Forbes's reliance on a state regulation and the Federal Families First Coronavirus Response Act because he failed to explain how these laws applied to his case in his appellate briefs. The court concluded that no reasonable fact-finder could infer retaliation given the clear violation of the attendance policy and the lack of evidence linking the termination to his use of the COVID-19 policy or complaints about public health orders.
This decision reinforces that employers in Colorado may enforce standard attendance policies even for employees returning from COVID-19, provided the employee fails to follow notification procedures. It clarifies that the mere fact of a termination following a pandemic-related absence does not establish a prima facie case of retaliation; the employee must present specific evidence of retaliatory intent. The ruling also signals that appellate courts will not consider legal arguments regarding statutes or regulations if the appellant fails to provide a substantive explanation for their application in their briefs. The case is remanded with instructions to enter judgment for Best Buy, and the decision serves as persuasive authority for similar employment disputes in the Tenth Circuit.
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