Parker Excavating, Inc. v. Lafarge West, Inc.

         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 ...