PARKER EXCAVATING, INC., a Colorado corporation, Plaintiff - Appellant,
v.
LAFARGE WEST, INC., A Delaware corporation; MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation; FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland corporation; NICK GUERRA, Defendants – Appellees, ALF RANDALL, in his individual capacity; ROBERT SCHMIDT, in his individual capacity, Defendants.
APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO (D.C. No. 1:14-CV-01534-LTB-MJW)
Jennifer K. Fischer, Fischer & Fischer, P.C., Denver,
Colorado, appearing for Plaintiff-Appellant.
William T. O'Connell, III (Larry S. McClung and Rachel
Ollar Entrican, with him on the brief), Wells, Anderson &
Race, LLC, Denver, Colorado, appearing for Appellees LaFarge
West, Inc. and Fidelity and Deposit Company of Maryland.
Van
Aaron Hughes (Jonathan G. Pray and Hannah M. Caplan, with him
on the brief), Brownstein Hyatt Farber Schreck, LLP, Denver,
Colorado, appearing for Appellees Martin Marietta Materials,
Inc. and Nick Guerra.
Before
HARTZ, MATHESON, and PHILLIPS, Circuit Judges.
MATHESON, Circuit Judge.
This
appeal arises from a grant of summary judgment against
Plaintiff-Appellant Parker Excavating, Inc. ("PEI")
on its civil rights claim against Defendants-Appellees
Lafarge West, Inc. ("Lafarge"),[1] Martin Marietta
Minerals, Inc. ("MMM"), and Nick Guerra, an
employee of Lafarge and MMM.
Lafarge,
a construction company, was the primary contractor on a
paving project for Pueblo County, Colorado ("the
County"). PEI, a Native American-owned construction
company, was a subcontractor for Lafarge. MMM replaced
Lafarge as the primary contractor. PEI's participation in
the project was terminated before it entered into a new
subcontract with MMM.
PEI
alleged Lafarge retaliated against it with a letter of
reprimand and a demand to sign letters of apology after PEI
Vice President Greg Parker complained that County employees
discriminated against PEI on the basis of its Native American
ownership. PEI alleged Lafarge, MMM, and Mr. Guerra
retaliated against it when it was asked to vacate the project
after Mr. Parker made further complaints of discrimination.
PEI based the foregoing on 42 U.S.C. § 1981, which
prohibits racial discrimination in contracts and retaliation
for opposing such discrimination, 42 U.S.C. § 1981,
CBOCS West, Inc. v. Humphries, 553 U.S. 442, 445-46
(2008).
In
separate orders, the district court granted summary judgment
on PEI's § 1981 retaliation claim to (1) MMM and Mr.
Guerra because PEI could not show its opposition to County
employees' discrimination was "protected"
opposition under § 1981 and (2) Lafarge because PEI
could not show Lafarge took an adverse action against it.
Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm the grant
of summary judgment to MMM and Mr. Guerra and reverse the
grant of summary judgment to Lafarge.
In
their summary judgment motion, MMM and Mr. Guerra argued that
PEI could not base its § 1981 retaliation claim on its
opposition to the alleged discriminatory conduct of
third-party County employees. PEI failed to respond to this
argument in district court and also has failed to argue on
appeal that the district court plainly erred in granting
summary judgment on this ground. Under these circumstances,
we affirm as to MMM and Mr. Guerra.
In its
summary judgment motion, Lafarge argued PEI could not show
Lafarge took an adverse action against it. The district court
agreed and granted summary judgment on this ground. On
appeal, PEI argues there is a genuine issue of material fact
on this question. We agree and reverse the grant of summary
judgment on the § 1981 retaliation claim as to Lafarge.
I.
BACKGROUND
A.
Factual Background
We
present the following facts in the light most favorable to
PEI, the non-moving party on summary judgment. Twigg v.
Hawker Beechcraft Corp., 659 F.3d 987, 997 (10th Cir.
2011).
PEI is
associated with the Choctaw Tribe. Mr. Parker is PEI's
Vice President. Mr. Guerra was Lafarge's estimator and
project manager, and then worked for MMM.
In July
2011, the County hired Lafarge to be the primary contractor
on a roadway and drainage improvement project on South
McCulloch Blvd. ("the McCulloch Project"). Lafarge
subcontracted with PEI for excavation and traffic control
work.
Two
provisions of the subcontract are especially relevant. First,
in lieu of PEI's providing a performance bond, Lafarge
agreed that it would retain 50 percent of the funds owed to
PEI until PEI completed its work. Second, the arbitration
clause required that "[a]ny claim or dispute arising out
of this Subcontract . . . be subject to and determined by
binding arbitration . . . ." App., Vol. IV at 27.
We
present the remaining facts to correspond with the elements
of PEI's § 1981 retaliation claim: (1) the County
employees' alleged discriminatory conduct; (2) PEI's
alleged opposition to that discriminatory conduct; and (3)
the Appellees' alleged retaliation for that opposition.
1.
Alleged Discrimination, Opposition, and Retaliation
– June to July 2011
a.
Alleged discriminatory conduct
PEI
contends Mr. Parker was the target of discriminatory conduct
during a pre-construction meeting on June 28, 2011, attended
by County representatives, Lafarge employees, and other
contractors on the McCulloch Project. In that meeting, County
employee Alf Randall wadded up PEI's proposed traffic
control diagrams and threw them in the trash, calling them
"bullshit." App., Vol. V at 130. PEI alleges Mr.
Randall acted out of discriminatory animus toward PEI based
on a comment he had made during a previous, unrelated
construction project (the "William White
Project").[2] During a payment dispute on that project,
Mr. Randall allegedly told Mr. Parker that he believed
"affirmative action was bullshit." Id. at
90.
2.
Alleged opposition to discrimination
On July
12, 2011, at Mr. Guerra's suggestion, Mr. Parker called
County Commissioner John Cordova to complain about Mr.
Randall's actions during the pre-construction meeting.
Mr. Parker spoke with the Commissioner over a speakerphone in
Mr. Guerra's presence.
During
the phone call, Mr. Parker said Mr. Randall's behavior
was due to PEI's Native American ownership, citing Mr.
Randall's comment during the William White Project about
affirmative action.
3.
Alleged retaliatory acts
On July
13, 2011-the day after the phone call to the Commissioner-Mr.
Guerra sent Mr. Parker a letter of reprimand on behalf of
Lafarge. The letter stated Lafarge had been informed that Mr.
Parker had "contacted various public officials" to
discuss the incident between Mr. Parker and Mr. Randall.
App., Vol. V at 154. The letter explained that, in doing so,
Mr. Parker had "circumvented the proper dispute
resolution process as outlined in [the] subcontract agreement
with Lafarge and [had] put Lafarge at risk of being
disqualified as General Contractor on the McCulloch . . .
project." Id.[3] The letter stated it was
PEI's "first and final notice to follow the proper
procedure for dispute resolution" and that PEI's
subcontract would be terminated if Mr. Parker contacted any
County official regarding any dispute on the McCulloch
Project moving forward. Id.
Mr.
Guerra further required Mr. Parker to sign letters to Mr.
Randall and Robert Schmidt, another County employee,
apologizing for "circumventing the proper procedure for
dispute resolution" for disputes between Mr. Parker and
Mr. Randall on the McCulloch Project. Id. at 155,
156.
1.
Alleged Discrimination, Opposition, and Retaliation
– November to December 2011
a.
Alleged discriminatory conduct
In
addition to the June 28, 2011 incident of alleged
discrimination, PEI identifies three other allegedly
discriminatory acts.
First,
in October or November 2011, Mr. Schmidt confronted Mr.
Parker and called him a "f***ing liar" for not
conducting proper inspections at the work site. Id.
at 129.
Second,
in another meeting, Mr. Schmidt called Mr. Parker
"stupid" and a "dumbass," and poked him
in the chest three times. Id.
Third,
Mr. Randall made unreasonable, unjustified demands on PEI,
including requiring PEI to change or move construction signs
without good cause.
b.
Alleged opposition to discrimination
Along
with Mr. Parker's phone call to Commissioner Cordova in
July 2011, PEI alleges it opposed ...