Heit et al v. EDF Trading North America, LLC
ORDER denying 19 Defendant's Motion for Summary Judgment in its entirety, by Judge William J. Martinez on 11/20/2012.(ervsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-00464-WJM-MJW
JEFFREY HEIT and
EDF TRADING NORTH AMERICA, LLC,
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant’s Motion for Summary Judgment.
(ECF. No.19.) Plaintiffs Jeffrey Heit (“Heit”) and Lance Titus (“Titus”) (jointly the
“Plaintiffs”) have filed a Response to this Motion (ECF No. 20), and Defendant EDF
Trading North America LLC (“EDF” or “Defendant”) has filed a Reply. (ECF No. 22).
The Motion is ripe for adjudication. Having reviewed the briefs and the relevant portions
of the record, the Motion for Summary Judgment is denied.
On January 25, 2010, Heit signed a contract with Defendant to work at its
Denver office. A contract was signed by Titus shortly thereafter, which was
substantially similar to Heit’s contract (jointly the “Contracts”). (ECF. No.19, Exh. A1
On the instant Motion, the Court must view the facts in the light most favorable to
Plaintiff. McBeth v. Himes, 598 F.3d 708, 715 (10th Cir.2010). Thus, to the extent any relevant
facts are disputed, the Court adopts Plaintiffs’ version of recited facts in this Order.
and Exh. A2.)) The Contracts provide that Plaintiffs’ principal place of employment
would be “EDFT’s offices, located in Denver Colorado.” (ECF. No.19, Exh. A1.)
office designated for both Plaintiffs was located at 9785 South Maroon Circle, Suite 210
in Englewood, Colorado (the “Denver Office”). (ECF No. 20 at 1 and 8.)
In April 2010, Defendant made a business decision to sell its coal business that
operated out of the Denver office, but kept the office space open for several more
months. (Id. at 8.) During April 2010 through September 2010, Defendant began
closing the Denver Office. (Id. at 13.) Plaintiffs, however, remained in that office while
Defendant began to work with real estate brokers. (ECF No. 19 Exh. A13, at 2-3; see
also, Exhs. A21, A22, A24 and Exh. A-25.) No alternative real estate space or
sublease was ever finalized in Denver while Plaintiffs were employed by Defendant.
(ECF No. 20, Exh 8 at ¶ 15-17. )
While Heit worked in the office through approximately August 31, 2010, the cable
was shut off in July, and the phone, data and internet accessibility was only intermittent
throughout August. (ECF No. 19. Exh. A47 and ECF No. 20 Exh. 1 at 77:9-16, 276:2021.) Plaintiffs' contend that at no time was Heit working from a home office, and Titus
was only willing to work from home "temporarily". (Id. Exh. 1 at 77:9-16, 276:20-21.)
After August 31, 2010, when the Denver Office no longer had phone, cable or
internet service, Heit primarily worked out of his car and various cafes. (ECF No. 20 Ex.
1 at 119:19 – 121:16.)2 On September 22, 2010, the office was closed and both
Plaintiffs then worked from home. (ECF No. 19 Exh. 47.)
Plaintiffs' phone numbers and mail were also transferred to Houston around this time.
(ECF No. 19 Exhs. A47, A4 and A-5.)
On September 24, 2010, Plaintiffs signed and returned letters they had received
from a third-party (Enserco) detailing the terms of future employment, and which
anticipated acceptance of employment on or about December 27, 2010. (ECF 20 Exh.
4 at 26:12-23 and Exh. 3 at 57:1-25.) Three days later, on September 27, 2010,
Plaintiffs sent notices to Defendant titled: “Notice of Resignation due to Constructive
Termination”. (ECF No. 19 Exh. A3 and A4). Since Plaintiffs’ Contracts provided
Defendant with a 30-day right to cure, the notices for constructive termination identified
that Plaintiffs’ last work day would be October 28, 2010. (ECF No. 20 Ex. 1 at 224:5-8).3
With respect to constructive termination, clause 2(e) provides:
[I]f your [Plaintiff’s’] principal place of employment is moved further than 50
miles from the Company's offices in Denver, Colorado. . . . Prior to a
resignation by Constructive Termination, Plaintiffs must first: communicate
by delivery to the Company of thirty days' advance written notice of such
resignation and the grounds therefore, during which period the Company
shall be entitled to cure or remedy the matters set forth in such notice to
your reasonable satisfaction, in which a Constructive Termination shall be
deemed not to have occurred. . . .Any other resignation by you shall be
communicated by thirty days' advance written notice.
See, (ECF No. 19 Exhs. 1 at 2).
The parties agree that the cure provision “related to a Constructive Termination is
a material provision” of the Contracts. (ECF No. 19 Exh. B at 99:8-24; Exh. C
194:1-195:8.) Much will turn on the constructive termination and cure clauses below.4
The Titus notice also claimed EDF materially breached his employment agreement
because "[h]igh ranking EDF employees . . . applied constant and increasing pressure to
relocate to Houston." (ECF No. 19 Exh. A4.)
Before addressing those issues, amongst others, it is worth noting that the factual
background above is drawn from 67 asserted facts by Defendant. (See generally, ECF No. 19)
The Court notes that of the 67 asserted facts in Defendant’s Statement of Facts, 51 of those
asserted facts were either denied or disputed, in part, by Plaintiff. See, generally, (ECF No. 19;
ECF No. 20.) While not dispositive of this Motion without more, it is difficult to view how this
Motion—at least on first blush—could be adjudged under a summary judgment framework. The
II. LEGAL STANDARDS
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A fact is “material” if under the
relevant substantive law it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the
evidence is such that it might lead a reasonable jury to return a verdict for the
nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). In analyzing
a motion for summary judgment, a court must view the evidence and all reasonable
inferences therefrom in the light most favorable to the nonmoving party. Adler v. WalMart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Summary judgment must be granted where a party “fails to make a showing
sufficient to establish the existence of an essential element to that party's case, on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). There, the Court held that defendant could meet its initial burden
for summary judgment “by ‘showing’ that there [was] an absence of evidence to support
the nonmoving party's case.” Id. at 325. When “the moving party does not bear the
ultimate burden of persuasion at trial, it may satisfy its burden on a motion for summary
judgment by identifying a lack of evidence for the nonmovant on an essential element of
“overuse of motions filed pursuant to Fed. R. Civ. P. 56 in this District unreasonably delays the
progress of civil litigation.” See, Practice Standards for Criminal and Civil Matters before William
J. Martínez, U.S. District Court for the District of Colorado at III. E. 1.
the nonmovant’s claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115
(10th Cir. 2001) (quotation marks omitted). If the movant meets this burden, the burden
shifts to the nonmovant “to go beyond the pleadings and set forth specific facts that
would be admissible in evidence in the event of trial from which a rational trier of fact
could find for the nonmovant.” Adler, 144 F.3d at 671 (quotation marks omitted).
Plaintiffs do not dispute that the substantive law of Texas is applied in construing
the Contracts at issue. Under Texas law, the essential elements of a breach of contract,
are: (1) the existence of a valid contract; (2) performance or tendered performance by
the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by
the plaintiff as a result of the breach. Mullins v. TestAmerica, Inc., 564 F.3d 386, 418
(5th Cir. 2009); Aguiar v. Segal, 167 S.W.3d 443, 450 (2005); First City Nat’l Bank of
Midland v. Concord Oil Co., 808 S.W.2d 133, 137 (1991)
Within the framework of summary judgment, Defendant asserts that because
Plaintiffs can neither establish that they performed as required under the Contracts, nor
that EDF breached the Agreements, Plaintiffs’ contract claim fails as a matter of law.
Celotex, 477 U.S. at 322 (mandating summary judgment “against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case.”)5 For the reasons that follow, Defendant’s arguments are rejected.
When, as here, "the moving party does not bear the ultimate burden of persuasion at
trial, it may satisfy its burden on a motion for summary judgment by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant's claim." Bausman, 252
F.3d at 1115.
The Meaning of "Principal Place of Employment": Physical offices or
Plaintiffs' Personal Homes?
Plaintiffs’ claim for breach of contract is based on constructive termination.
Section 2(e)6 of the Contracts states that moving the employees’ “principal place of
employment” “further than 50 miles from the Company’s offices in Denver, Colorado”
would be deemed “constructive termination.” (ECF 19, Exh. A1 at 5).
Plaintiffs contend that because Defendant closed the Denver Office—and did not
offer any other commercial offices in Denver other than Plaintiffs’ own
homes—Defendant breached the contract based on constructive termination. Critically,
Plaintiffs’ construe the phrase “principal place of employment” to mean: “an actual,
physical EDF office.” (ECF No. 20 at 28).
Defendant counters that there was no breach of contract and that the closing of
the Denver Office did not trigger constructive termination because the “principal place of
employment” for both Plaintiffs became their respective homes. (ECF No. 19 at 15-17.)7
According to Defendant, Plaintiffs could not have been constructively terminated
because each of their homes are within 50 miles of Denver. (Id.) Defendant construes
the phrase, “principal place of employment” to mean: "any places EDF set up for its
employees to perform services and conduct the business of EDF." (Id.) Defendant thus
asserts that the scope of the disputed phrase includes Plaintiffs’ personal homes. (Id.)
Note: there is a typographical error in the Heit contract insofar as the paragraph
numbering jumps from 2(c) to 2(e); whereas in the Titus contract, the numbering does not jump
and the constructive termination clause is housed in 2(d). For the purposes of this Order, the
Court will label this clause 2(e), consistent with Plaintiffs’ briefing. (See generally, ECF No. 20.)
Defendant further argues that even if constructive termination was triggered, Plaintiffs
did not provide Defendant with 30 days to cure the constructive termination, which is also
pursuant to clause 2(e).This argument is addressed below in Section B.
Relevant Canons of Construction under Texas Law
To construe a written contract, Texas law provides that “the primary concern of
the court is to ascertain the true intentions of the parties as expressed in the
instrument." Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005). “To
achieve this objective, courts should examine the entire writing in an effort to harmonize
and give effect to all the provisions of the contract so that none will be rendered
meaningless." Id. (emphasis added.) "Contract terms are given their plain, ordinary,
and generally accepted meanings unless the contract itself shows them to be used in a
technical or different sense." Id. It is the Court’s duty "to consider each part with every
other part so that the effect and meaning [of the contractual clause] may be
determined." Smart v. Tower Land & Inv. Co., 597 S.W.2d 333, 337 (Tex.1980).
Here, and by addressing the parties’ true intentions and the entire agreement,
the Court concludes the Plaintiffs’ construction is correct – that is: an “actual, physical”
EDF office; not personal homes owned by the Plaintiffs. (ECF No. 20 at 28.). The
reason is two-fold.
First, nothing in the Contracts expressly state that Plaintiffs personal homes
would be viewed as their principal place of employment; rather, clause 1 provides that
the Plaintiffs’ "principal place of employment shall be at EDFT's offices, located in
Denver, Colorado."8 (emphasis added.) (ECF No. 10 Exh. A1 a 1.) Given this express
reference to the Defendant’s company offices—and the absence of Plaintiffs’ personal
homes in clause 1—the Court holds that the very language of clause 1 is illustrative of
The acronyms EDF and EDFT are considered synonymous for the purposes of
construing the Contracts. Here, the use of an acronym for the purposes of contract construction
is to denote the Company’s office – not the personal homes of the Plaintiffs.
the parties’ intent; an intent that is clear, and an intent which comports with the Plaintiffs’
construction of the disputed phrase. Valence Operating Co. 164 S.W.3d 656, 663.
Second, the Court is not persuaded by Defendant’s construction, which is
primarily driven by dictionary definitions. In short, that construction would have the Court
view the phrase “principal place of employment” as the Plaintiffs’ personal homes. This
stretches the phrase too far. It does not accord with the intent of the Contracts, nor
harmonize the clauses therein. Moreover, and after examining the Contracts in their
entirety, the Court finds that Defendant places too much reliance on dictionary
definitions to support its preferred construction of the disputed phrase.
Specifically, Defendant relies on the legal maxim that allows this Court to rely on
dictionaries to construe the plain meaning of the Contracts. Defendant points to several
cases to support its position. Amongst others, these include: Epps v. Fowler, 351
S.W.3d 862, 866 (Tex.2011) Based on the plain meaning, Defendant asserts that
Black’s Law Dictionary defines this phrase as “(1) [t]he location at which work done in
connection with a business is carried out; and (2) the place where some process or
operation related to the business is conducted.” BLACK’S LAW DICTIONARY 1266 (9th
ed. 2009). Based on either meaning, Defendant argues that “principal place of
employment” can mean: “any places EDF set up for its employees to perform services
and conduct the business of EDF.” (ECF No. 19 at 16) But a dictionary meaning is
merely a tool for interpretation. It only takes the Defendant's argument so far. It’s a
starting point.9 Nothing in Texas law states that dictionary meanings should trump the
Defendant's reliance on the dictionary meaning of the disputed phrase only makes the
phrase more abstract, and the external tools relied upon to help Defendant's position are just
that: external. To an extent, they perhaps provide a starting point for Defendant's argument; but
true "intentions of the parties." Valence Operating Co. 164 S.W.3d 656, 662.
Nowhere in Defendant's brief does it seek to rebut this primary concern, nor does
it seek to challenge the related canons of construction going to the intent of the
instrument. Rather, Defendant relies on dictionary meanings to sway the Court’s
opinion. Such reliance is unpersuasive. This view is only reinforced when the Court
inspects the Epps decision in more detail. Upon inspection, the Court reads that the
only reason that the dictionary was “resorted to”, there, was because “no other portion
of the agreement shed light on the term” being construed. Epps 351 S.W.3d 866
(Tex.2011)10 (emphasis added.)
By contrast, that is not the case here: the Heit and Titus agreements do shed
light on the intended meaning of the disputed phrase. When both Contracts are viewed
in their entirety, there’s indeed a close connection between the clauses 1, clause 2(c)
and clause 2(e) – which allows the Court to better construe the disputed phrase in light
of the entire agreement.
In light of these clauses—and viewing a contract as a whole—the intent of the
Contracts becomes clear: to provide Plaintiffs with a sense of security that their
positions would not be transferred to Defendant’s headquarters in Houston. When
viewed in this context, the disputed phrase—“principal place of employment”—has
they do not inform the true intent of the contract when the Contracts are viewed in their entirety,
which is task before the Court under Texas law. Valence Operating Co. 164 S.W.3d 656, 663;
see also, United States v. Monia, 317 U.S. 424, 431 (1943) (Frankfurter, J., dissenting) (stating,
albeit in the context of statutory construction: "the notion that because the words of a statute are
plain, its meaning is also plain, is merely pernicious oversimplification.")
See, also Flagship Credit Corp. Co., No. 11-20408. June 15, 2012 (2012) (Slip Copy)
(stating that "...context is often determinative.")
nothing to do with the Plaintiffs’ personal homes; and everything to do with providing the
parties with some level of certainty as to office locations during the term of the
Contracts. This construction harmonizes the intent of these clauses and confirms their
intended meaning as applied to the parties. Valence Operating Co. 164 S.W.3d 656,
Accordingly, the Court concludes that “principal place of employment” means an
“actual, physical EDF office” – and does not encompass the Plaintiffs’ personal homes.
To the extent that Defendant’s Motion for Summary Judgement is based on its
contention that Plaintiffs were not constructively terminated, the Motion is denied.
The Right to Cure Under the Contracts
Defendant next argues that Plaintiffs failed to provide Defendant with an
opportunity to cure the alleged breach pursuant to clause 2(e)(ii) of the Contracts. (ECF
No. 19 at 18) That clause provides:
Any resignation by you as a result of assertion of a Constructive
Termination shall (i) occur within two (2) years (or less) of the event giving
rise to such Constructive Termination and (ii) be communicated by
delivery to the Company of thirty days advance written notice of such
resignation and the grounds therefore, during which period the Company
shall be entitled to cure or remedy the matters set forth in such notice to
your reasonable satisfaction, in which event a Constructive Termination
shall be deemed not to have occurred."
(Id. Exh. A1 at 2.) (emphasis added.)
If Defendant's preferred construction was taken to its logical conclusion, the Court
finds that it will lead to an absurd result. For instance, if the Court were to adopt Defendant's
construction, it places Plaintiffs in the position where Plaintiffs could move 50 miles outside
Denver, unilaterally. Plaintiffs could then allege constructive termination in absence of any cure
by Defendant. This scenario lacks commonsense; much like the Defendant's construction
which seeks to distort the true intent of the Contracts. See generally, Sheldon L. Pollack Corp.
v. Falcon Indus., Inc., 794 S.W.2d 380, 383 (1990).
Defendant argues that it was unable to cure the Plaintiffs' grounds for
constructive termination because Plaintiffs purportedly entered into contracts with a
third-party competitor three days before the period to cure ended. (ECF No. 19 at 22.)
In short, Defendant contends that Plaintiffs “never fulfilled their obligation to provide
EDF with its right to 30 days, and thus Plaintiffs cannot establish breach. "(Id.) The
Court rejects this argument as well.
First, the Court finds that there is genuine dispute as to material fact in the record
with respect to whether Plaintiffs’ accepted contracts with Enersco (the purported thirdparty). There is lengthy deposition testimony that was filed with this Motion that puts the
issues of offer and acceptance into some doubt in the months of September through
December 2010. And there is certainly material facts in dispute based on such
testimony that has been filed for summary judgment.
For example, Plaintiffs contend material facts are in dispute as to whether
Plaintiffs signature on purported contract ("offer letter") prevented Defendant from
curing the grounds for constructive termination. Specifically, (1) the letters were not
contracts. Instead, they were ‘offer letters,' and (2) the offer letters anticipated a start
date of December 27, 2010 before any employment was to commence. (ECF No. 20
Exh. 7 ¶ 16, Exh. 8 ¶ 12, Exh. 2 at 237:13-16, and Exh. 1 at 224:3-8, amongst others)
Viewed in the light most favorable to Plaintiffs, the Court is not positioned to find for
Defendant as a matter of law because there are material facts in genuine dispute. Adler
144 F.3d 664, 670 (10th Cir. 1998).
Second, even if the Court were to accept that Plaintiffs entered into
contracts with third parties,12 the issue of whether there has been cure is one of material
fact. This is supported by the parties Statement of Facts, where the parties agree that
the cure provision "related to a Constructive Termination is a material provision" of the
Contracts. (ECF No. 19 Exh. B at 99:8-24; Exh. C 194:1-195:8.) The notion that cure is
also a material one is supported by the language of the clause 2(e) itself. That is, the
“cure”, within the 30 day period, must be to the Plaintiffs’ “reasonable satisfaction.”
Defendant ignores this phrase. Clearly, determining whether the Plaintiffs have been
reasonably satisfied by Defendant’s cure is not one for summary judgment; rather, it is
one that requires assessment of critical and material facts that will ultimately be decided
Third, it is sometimes forgotten that it is the moving party who bears the “initial
burden” for the purposes of summary judgment. As to the issue of cure, that burden is
not satisfied here; ever more so when the moving party (Defendant) cannot identify a
“lack of evidence” by Plaintiffs on the “essential element” of breach. As noted above,
there is an abundance of evidence on whether there has been breach because
The Defendant fails to make any effort to construe the word: "cure". Nor does it seek
to construe the phrase: "to your reasonable satisfaction." Had Defendant done so, there would
have been some scope to at least consider Defendant's argument for the purposes of summary
judgment as matter of law. It failed to do so, which cuts against Defendant's position – and the
lack of authorities cited by Defendant only fortifies this position. See, generally, Phillips v.
Calhoun, 956 F.2d 949, 953-54 (10th Cir.1992) ("A litigant who fails to press a point by
supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting
authority or in the face of contrary authority, forfeits the point.") See, also: Pelfresne v. Village of
Williams Bay, 917 F.2d 1017, 1023 (7th Cir.1990)).
See, also, the array of factors in Mustang Pipeline Co. v. Driver Pipeline Co., 134
S.W.3d 195 (Tex. 2004) for determining materiality – including: “(a) the extent to which the
injured party will be deprived of a reasonably expected benefit. . . (e) the extent to which the
behavior of the party failing to perform comports with standards of good faith and fair dealing").
Defendant failed to cure the constructive termination.14 As the authorities provide, there
is no reason to grant summary judgment where the moving party (Defendant) has not
discharged its initial burden. Cf. Bausman v. Interstate Brands Corp., 252 F.3d 1111,
1115 (10th Cir. 2001).15
Accommodation: Whether Plaintiff Used EDF’s Accommodation
Against the Company?
The next issue is whether the Plaintiffs—by purportedly agreeing to work from
home offices, and then suing their former employer for construction termination—is an
“attempt to use EDF’s accommodation against the Company.” (ECF No. 19. at 21).The
Defendant’s argument on this issue is bare-boned, but relies upon a string of authorities
that supposedly support its reasoning without explaining why or how these authorities
apply. Courts are “not charged with making the parties' arguments for them." Meyer v.
Bd. of County Comm'rs, 482 F.3d 1232, 1242 (10th Cir. 2007).
Here, though, the Court has reviewed the cases cited by Defendant. Some of
these cases are not only inapposite; but detrimental to Defendant’s Motion for Summary
judgment since they raise issues of quasi-estoppel. Such claims require showings of
misrepresentation and detrimental reliance, which are both fact-driven. Lubbock Heart
Hosp., LP v. Olympus Managed Healthcare, Inc., 2011 WL 5374751, *4 (2011); and
Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 240 (1994). These factual
(ECF No. 20 Exh. 7 ¶ 16, Exh. 8 ¶ 12, Exh. 2 at 237:13-16, and Exh. 1 at 224:3-8.)
In any event, the evidence regarding the issue of cure is both conflicting and
abundant. (For example, ECF No. 20 Exh. 7 ¶ 16, Exh. 8 ¶ 12, Exh. 2 at 237:13-16, and Exh. 1
at 224:3-8, amongst others.) And no doubt the issue of whether the Defendant cured the
constructive termination—when it closed the Denver Office (and offered no alternative, other
than the Plaintiffs' own homes)—will be firmly impressed upon the jury,
showings—along with material facts as to whether Plaintiffs agreed to work from
home—are clearly "trial worthy" and only further defeat Defendant's Motion for
Summary Judgment. Harper v. Mancos Sch. Dist. RE–6, 837 F.Supp.2d 1211,
1223–24 (D.Colo.2011); Celotex, 477 U.S. at 322.16
Reasonableness of Plaintiffs Action to Not Accept Defendant's
Offer to Cure
Defendant argues that Plaintiffs were required to be “reasonable in working with
EDF on curing the constructive termination” issues raised in Plaintiffs’ notices dated
September 27, 2012. (ECF No 19 at 19.) Again, like the previous argument, this, too, is
bareboned. The assertion that Plaintiffs were required to be “reasonable” is defective
for several reasons: (1) Defendant ignores the express languages in clause 2 that
requires “cure” be to the “[plaintiffs’] satisfaction” – not the Defendant’s; (2) even if the
Court was to impute some reasonableness standard upon the Plaintiffs, it is difficult to
see how this would not raise material issues of fact that require jury determination; and
(3) Defendant offers no authority for the proposition that the Court must look to some
reasonableness standard to adjudge Plaintiff’s conduct. More than what is offered by
Defendant is required. See generally, Phillips 956 F.2d 953-54 (10th Cir.1992) ( "A
litigant who fails to press a point by supporting it with pertinent authority. . . .forfeits the
Whether Plaintiffs' Course of Conduct Precludes Constructive
Defendant argues that because Plaintiffs accepted payments from Defendant
Plaintiffs assert that there are clear material facts as to whether the Plaintiffs agreed to
work from home. This again raises genuine facts for the jury to decide. (ECF No. 20 at 11.)
after resigning based on their notice letter of September 27, 2012, Plaintiffs are
estopped from claiming that they did not “voluntarily” resign from EDF. (ECF No. 19 at
22) Several of the cases cited with respect the ‘accommodation’ are also cited here.
The arguments seem to overlap. But as with the result on the accommodation, the
Defendant’s argument based on estoppel here is similarly rejected. The simple reason
being: estoppel raises issues that go to misrepresentation and detriment, which would
requires showings of fact that the parties dispute. Lubbock Heart Hosp., LP v. Olympus
Managed Healthcare, Inc., 2011 WL 5374751, *4 (2011) (Quasi-estoppel “precludes a
party from asserting, to another's disadvantage, a right inconsistent with a position
previously taken. The doctrine applies when it would be unconscionable to allow a
person to maintain a position inconsistent with one to which he acquiesced, or from
which he accepted a benefit.”) See also, Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236,
Here, whether Plaintiffs in fact acquiesced or accepted the benefit under the
pretense that it was for voluntary resignation is clearly in dispute. The Court views such
facts in the light most favorable to the non-moving party. This case is illustrative of that
very proposition, which provides further grounds to deny Motion for Summary
Further, bound within this argument, Defendant attempts to blur the relevant
clauses of the Contracts that led to some payments to Plaintiffs following their
resignation. The argument is convoluted. Defendant asserts that Plaintiffs’ notices of
September 27, 2012 triggered voluntary resignation under the non-compete clause, not
the constructive termination clause – and received payments from Defendant under the
former upon which Defendant relied. (ECF No. 19 at 21-22.) But this theory is
misplaced. Purely for the purposes of this argument on summary judgment, and based
on the Court’s review of the relevant notices, the intent behind them was to place
Defendant on notice of the relevant breach under clause 2(e) and provide 30 days for it
to be cured. If it wasn’t cured—which the Court has found to be a material dispute
between the parties, warranting jury trial—then the Plaintiffs were entitled to their Base
Salary for the Primary Term. (ECF No. 19 Exh. 1 at 2-3.) This Primary Term, as
provided for in the Contracts, extended through to March 31, 2012. (Id. at 1)
Therefore, the notion that Plaintiffs received payments from Defendant (“and
never protested nor rejected such payments”) is irrelevant to the issue of cure (a
disputed material fact). The reason being because those payments ended in December
2010 (which was well past the one-month cure period provided for in the Contracts).
(ECF No. 19. at 22.) Subject to jury trial, there is enough evidence from which a
reasonable trier of fact could find for the Plaintiffs on the issue of whether they should
have been paid through December 2010 and into March 2011 pursuant to the alleged
breach for constructive termination. (ECF No. 19. at 22.) As such, this issue is trialworthy and one ripe for jury determination. Harper 837 F.Supp.2d at 1223–24; Celotex,
477 U.S. at 322.
Accordingly, the Court finds that factual disputes preclude resolution as a matter
of law as to whether Defendant was allowed an opportunity to cure. Defendant’s Motion
for Summary Judgment is denied on this ground as well.
Whether asking Titus to relocate to Houston was a material breach of his
agreement and not appropriate for summary judgment
In addition to breach for constructive termination, Titus also claims that EDF
materially breached his employment agreement because "[h]igh ranking EDF
employees . . . applied constant and increasing pressure to relocate to Houston." (ECF
No. 19 Exh. A4.) To counter this position, Defendant again seeks to rely on the
misplaced construction that “principal place of employment” included Plaintiffs’ personal
homes; and therefore, any notion of “pressure” could not have occurred since Titus was
working at an EDF office in Denver (albeit his own personal home). The Court has
previously rejected this construction, and rejects Defendant’s argument on Titus’s
material breach claim as well.
It follows that Defendant’s argument on EDF pressure (or lack thereof) is turned
on its head; ever more so by the facts that are raised in Plaintiffs’ Statement of Facts.17
Since these facts give rise to inferences that pressure was exerted—and “reasonable
inferences” must be found in the light most favorable to the nonmoving party—it
becomes apparent that there is a genuine issue of material fact; and an issue that
further cuts against Defendant’s Motion of Summary Judgement Adler v. Wal-Mart
Stores, Inc., 144 F.3d 670.
For example, Plaintiff’s Statement of Facts provides specific examples and citations in
the record as to when alleged pressure was exerted. Plaintiffs’ brief states: “While working in
Houston in May, Fabio Nehme told Titus that moving to Houston would be important for his
career at EDF (ECF 20, Exh. 8, at ¶10, Exh. 2 at 290:25 – 291:16). In July, Titus heard his EDF
superiors discuss the fact that Titus had no future at EDF unless he was in Houston (Ex. 8, ¶10)
In September 2010, in London, John Rittenhouse (EDF’s CEO) asked Titus in front of a number
of EDF executives when he was moving to Houston. (Ex. 2 47:4-18, 291:7 – 293:9).” (ECF No.
20 at 15.)
Whether Plaintiffs Can Establish a Violation of the Colorado Wage Claim
Finally, Defendant argues that because Plaintiffs were paid pursuant to the
voluntary resignation clause of the Contracts, and received non-compete payments
through December 2012, Plaintiffs were not owed any other monies under the Colorado
Wage Claim Act. See also, Barnes v. Van Schaak Mortgage., 787 P.2d 207, 209 (Colo.
App. 1990) (stating that compensation is earned “if it is vested pursuant to an
employment agreement at the time of the employee’s termination.”).
However, as the Court has found that there is are genuine issue as to the
material fact of whether Defendants cured during the relevant period, then this issue
also must be addressed before a jury. The reasoning in Section B.3. of this Order would
also have equal application here. Because the issues raised in Section B.3. (and here)
are trial worthy, Defendant’s motion for summary judgment is denied. Harper 837
F.Supp.2d 1211 at 1223–24; Celotex, 477 U.S. at 322.
Based on the foregoing, the Court hereby ORDERS that Defendant’s Motion for
Summary Judgment (ECF No. 19) is hereby DENIED in its entirety.
Dated this 20th day of November, 2012.
BY THE COURT:
William J. Martínez
United States District Judge
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