Parker Excavating, Inc. v. LaFarge West, Inc. et al
ORDER granting in part and denying in part 82 Motion for Summary Judgment by Judge Lewis T. Babcock on 5/3/16.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 14-cv-01534-LTB-MJW
PARKER EXCAVATING, INC., a Colorado corporation,
LAFARGE WEST, INC., a Delaware corporation,
MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation,
FIDELITY AND DEPOSIT COMPANY OF AMERICA, a Maryland corporation,
ALF RANDALL, in his individual capacity, and
ROBERT SCHMIDT, in his individual capacity,
This case is before me on Defendants Lafarge West, Inc. (“Lafarge”) and Fidelity and
Deposit Company of America’s (“Fidelity”) (collectively the “Moving Defendants”) Motion for
Partial Summary Judgment [Doc # 82]. After consideration of the motion, all related pleadings,
and the case file, I grant the motion in part and deny it in part as set forth below.
This background section is based primarily on the Moving Defendants’ Motion [Doc #
82], Plaintiff Parker Excavating, Inc.’s (“Parker Excavating”) Response [Doc # 136], and the
Moving Defendants’ Reply [Doc # 146]. In addition, I considered Parker Excavating’s Partial
Response to Defendants’ Motions for Summary Judgment[,] Joint Overview[,] and Response to
Statement of Facts [Doc # 129] despite the fact that this separate filing was unauthorized and
lacks clarity in its attempt to address multiple issues raised in three separate motions for
summary judgment, as well as other briefs and exhibits submitted in connection with other
pending summary judgment motions to the extent necessary for consistency and completeness.
For purposes of the Moving Defendants’ motion, the following facts are undisputed
unless otherwise noted:
Lafarge was the prime contractor for Pueblo County on a road construction project in
Pueblo County, Colorado known as the South McCulloch Boulevard Roadway/Drainage
Improvement Project (the “Project”) until early December of 2011. At that time, Defendant
Martin Marietta Materials, Inc. (“Martin Marietta”) took over the role of prime contractor
pursuant to an asset exchange agreement it entered into with Lafarge. Defendant Nick Guerra
(“Guerra”) was initially an employee of Lafarge but later became an employee of Martin
Parker Excavating was a subcontractor on the Project and also supplied certain
equipment to Lafarge and Martin Marietta for use on the Project. Under Parker Excavating’s
subcontract, Lafarge agreed to increase the retainage it would hold during the course of the
Project in lieu of requiring Parker Excavating to post a bond.
In the summer of 2011, Greg Parker of Parker Excavating contacted a County
Commissioner for Pueblo County and complained about actions by Defendant Alf Randall
(“Randall”), an employee of Pueblo County, relating to the Project. Parker purportedly
expressed his belief that these actions were either due to the fact that Parker Excavating was a
Native American company or were the result of a previous dispute. The previous dispute
referred to by Parker relates to a project known as the William White Project which Randall and
Parker Excavating had also both been involved with and which had also resulted in litigation.
During the William White Project, Parker asserts that Randall told him that he did not believe in
By letter dated July 13, 2011, Guerra informed Parker that his communications with the
County Commissioner “circumvented the proper dispute resolution procedure as outlined in your
subcontractor agreement.” Guerra directed Parker to sign a letter of apology to both Randall and
Defendant Robert Schmidt (“Schmidt”), who was also an employee of Pueblo County at the
time, and an acknowledgment of Guerra’s July 3, 2011 letter or face termination of the
Subcontract. Parker signed the three letters.
On November 3, 2011, Parker Excavating wrote a letter to Defendant Nick Guerra
(“Guerra”) to inform him of “perceived discrimination” on the part of the Pueblo County Public
Works Department (“PCPW”). The letter also detailed “difficulties” that Parker Excavating
claimed to have experienced on the Project as a result of PCPW’s actions or lack thereof.
On December 6, 2011, Randall wrote a letter to Lafarge listing a number of deficiencies
in the traffic control work on the Project. On December 7, 2011, Parker Excavating responded to
Randall’s letter and alleged discrimination by Pueblo County against Parker Excavating.
Parker Excavating first learned of Martin Marietta’s involvement on the Project when
Parker got a call from Guerra telling him that Parker Excavating needed to post a bond. After
becoming prime contractor on the Project, Martin Marietta asserts that its policy was to enforce
Lafarge’s bonding policy which was to require all subcontractors to post a bond for work greater
than a specified dollar amount and to make no exceptions. Parker Excavating asserts, however,
that Martin Marietta was to follow all agreements that Lafarge had made regarding bonding
requirements including Lafarge’s agreement to increase the retainage it would hold during the
course of the Project in lieu of requiring Parker Excavating to post payment and performance
bonds. The evidence in the record on this issue arguably supports the positions of both parties.
In a letter to Parker Excavating dated December 12, 2011 on Martin Marrietta letterhead
but with a Lafarge signature block, Guerra stated that while Parker Excavating’s subcontract
with Lafarge “allowed supplementing the bond with retention since [Parker Excavating] was
unable to bond the [P]roject,” Martin Marietta was requiring a bond on all subcontracts in excess
of $20,000. In this letter, Guerra further stated that since Parker had verbally told him that
Parker Excavating would be unable to bond the remaining value of the Project, Parker
Excavating would have to vacate the Project at a time to be determined. The record contains an
identical letter from Guerra to Parker Excavating dated December 15, 2011 but with a Martin
Marietta signature block.
Although Lafarge may have still been involved with the Project to some degree, the
evidence establishes that Martin Marietta terminated Parker Excavating from the Project on
December 17, 2011. According to Geurra, the decision to terminate Parker Excavating’s
Subcontract was made by him, Dave Smith, and Ted Lowder and others based on the fact that
Martin Marietta’s integration team would not accept the terms of the Subcontract regarding the
bond. Parker Excavating did not perform any work on the Project after December 17, 2011 but
left “eight specialty signs” at the Project at the request of Martin Marietta. It is unclear what
happened to these signs.
Parker Excavating has pending claims against Lafarge for retaliation under § 1981 (First
Claim for Relief); breach of the subcontract (Fourth Claim for Relief); breach of equipment
rental agreements (Fifth Claim for Relief); unjust enrichment (Sixth Claim for Relief);
conversion (Eighth Claim for Relief); civil theft (Ninth Claim for Relief); and malicious, willful,
and wanton breach of contract (Eleventh Claim for Relief). Parker Excavating also has a claim
against Lafarge and Fidelity on the bond Fidelity issued for the Project.
Parker Excavating seeks to recover consequential damages including (1) damage to its
reputation; (2) loss of goodwill; (3) damage to future bonding capacity; (4) the consequences of
the wrongfully terminated contract, including unnecessary labor and costs incurred due to the
harassment on the Project; (5) lost pay; (6) lost profits; (7) time and expenses of defending
Parker Excavating’s name and reputation; (8) inconvenience; and (9) other compensatory
damages to be proven at trial. Parker Excavating is relying primarily on its damages expert,
William Schwartzkopf, to quantify its alleged damages. Parker Excavating also seeks to recover
II. Standard of Review
The purpose of a summary judgment motion under Rule 56 is to assess whether trial is
necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Rule 56 provides that
summary judgment shall be granted if the pleadings, depositions, answers to interrogatories,
admissions, or affidavits show that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The non-moving party
has the burden of showing that there are issues of material fact to be determined. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
A party seeking summary judgment bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, interrogatories, and admissions on file together with affidavits, if any, which it
believes demonstrate the absence of genuine issues for trial. Celotex, 477 U.S. at 323; Mares v.
ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir. 1992). Once a properly supported
summary judgment motion is made, the opposing party may not rest on the allegations contained
in his complaint, but must respond with specific facts showing the existence of a genuine factual
issue to be tried. Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980); Fed. R. Civ. P.
If a reasonable juror could not return a verdict for the non-moving party, summary
judgment is proper and there is no need for a trial. Celotex, 477 U.S. at 323. The operative
inquiry is whether, based on all documents submitted, reasonable jurors could find by a
preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). However, summary judgment should not enter if,
viewing the evidence in a light most favorable to the nonmoving party and drawing all
reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party.
Anderson, 477 U.S. at 252; Mares, 971 F.2d at 494.
The Moving Defendants argue that they are entitled to judgment as a matter of law on
Parker Excavating’s claims for retaliation, conversion, and civil theft. The Moving Defendants
also argue that they are entitled to judgment as a matter of law on Parker Excavating’s request
for joint and several liability and damages resulting from Parker Excavating’s termination for the
Project. Finally, the Moving Defendants join in Defendants Martin Marietta and Guerra’s
Motion for Partial Summary Judgment [Doc # 83] with respect to Parker Excavating’s request
for an award of consequential and punitive damages.
A. Retaliation Claim
There is some overlap between the issues raised in the present summary judgment motion
and in that filed by Martin Marietta and Guerra. See Doc # 83. In fact, Parker Excavating
incorporated its response to Martin Marietta and Guerra’s motion regarding its retaliation claim
into its response to the motion currently before me. I therefore again note that Parker
Excavating’s response to Martin Marietta and Guerra’s motion is often hard to follow in that it
lumps together the various claims and theories it has asserted against all of the Defendants in this
case and that it is the burden of Parker Excavating, not this Court, to show that there are issues of
material fact to be determined at trial. With these considerations in mind, I turn to the merits of
the Moving Defendants’ argument that they are entitled to judgment as a matter of law on Parker
Excavating’s retaliation claim.
Parker Excavating’s retaliation claim against the Moving Defendants is predicated on §
1981 which provides in pertinent part that “[a]ll persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make and enforce contracts, ....”
42 U.S.C. § 1981(a). “[T]he showing required to establish retaliation is identical under § 1981
and Title VII.” Twigg V. Hawker Beechcraft Corp., 659 F.3d 987 (10th Cir. 2011) (quoting
Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1110 (10th Cir. 1998)). Thus, a plaintiff
alleging retaliation under § 1981 must show that (1) plaintiff engaged in protected opposition to
discrimination; (2) a reasonable employee would have found the challenged action materially
adverse; and (3) a causal connection exists between the protected activity and the materially
adverse action. Argo v. Blue Cross and Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir.
The Moving Defendants first argue that Parker Excavating cannot show that it engaged in
protected opposition to discrimination because it did not specifically complain of racial
discrimination. See Willmore-Cochran v. Wal-Mart Assocates, Inc., 919 F. Supp. 2d 1222, 1234
(N.D. Ala. 2013) (“[In order to constitute statutorily protected activity capable of supporting a §
1981 retaliation claim, an employee’s complaint must reasonably convey ... [opposition to]
discrimination based specifically upon race, versus some other type of discrimination or injustice
generally.”). As I likewise concluded in my Order on Martin Marietta and Guerra’s summary
judgment motion, viewing the record in the light most favorable to Parker Excavating, there is at
least a triable issue as to whether Parker Excavating engaged in protected activity when it
complained to the County Commissioner of discriminatory conduct based either directly on race
or on animus from a previous project. If the details of Parker Excavating’s complaint to the
County Commissioner were communicated to the Moving Defendants, then Parker Excavating’s
reference to “discrimination” in its November 3, 2011 and December 7, 2011 letters may also
constitute protected opposition to racial discrimination.
The Moving Defendants next argue that Parker Excavating cannot show that Lafarge
took any adverse employment action against Parker Excavating. I agree. Parker Excavating’s
identifies the following as “adverse employment actions:” (1) requirement that Parker
Excavating provide a qualification statement when it bid for the Project; (2) previous animus
from the Walter White Project carried over; (3) Randall’s rejection of Parker Excavating’s work
for unreasonable reasons; (4) “unreasonable demands and safety issues continued;” (5) required
letters of apology after Parker complained to the County Commissioner; (6) Randall’s December
6, 2011 letter listing deficiencies; and (7) refusals to sell asphalt and award work. See Doc #
134, pp. 14-26.
A number of these purportedly adverse actions can be summarily rejected on the basis
that they were not taken by, or did not involve, Lafarge. This category would include Randall’s
animus stemming from the Walter White Project; Randall’s rejection of Parker Excavating’s
work for unreasonable reasons; Randall’s letter dated December 6, 2011; and the alleged refusal
to sell asphalt since the deposition testimony cited in support refers only to Martin Marietta.
Likewise, though not specifically listed in its response, Parker Excavating’s subcontract was
terminated by Martin Marietta, and the termination of its subcontract therefore cannot constitute
an adverse employment action by Lafarge. In addition, the qualifications statement required
from Parker Excavating cannot be retaliatory because it preceded any complaints of
discrimination, and Parker Excavating presents no evidence that it bid for work with Lafarge that
it was not awarded under questionable circumstances.
The only remaining purported adverse actions consist of alleged “unreasonable demands
and safety issues continued” and the required apology letters. Parker Excavating identifies the
alleged “unreasonable demands and safety issues continued” as follows:
The County and the prime contractor first Lafarge and then Martin Marietta kept
requiring Parker to change placement of signs one way, and then a short time
later, move them a short distance or back to where they were before.
Doc # 134, p. 19. In support of this assertion, Parker Excavating cites Parker’s deposition
testimony in response to questioning concerning alleged discriminatory acts by Randall. In any
event, although the phrase “adverse employment action” is liberally defined in the Tenth Circuit,
it does not include “a mere inconvenience or an alteration of job responsibilities.” Sanchez v.
Denver Pub. Schools, 164 F.3d 527, 532 (10th Cir. 1998). I therefore conclude that Parker
Excavating’s allegation regarding the movement of signs does not establish an adverse action by
Lafarge. Likewise, while Parker Excavating may have thought the letters of apology were
unwarranted, this requirement did not constitute an adverse employment action particularly in
light of the fact that Parker Excavating cites no evidence to refute the statement in these letters
that its actions in contacting the County Commissioner circumvented the dispute resolution
procedure in its subcontract.
Since Parker Excavating is unable to establish that Lafarge took adverse action against it,
Lafarge is entitled to summary judgment in its favor on Parker Excavating’s § 1981 retaliation
claim, and I need not consider Lafarge’s additional argument that Parker Excavating is also
unable to prove the causal connection element of this claim.
B. Conversion and Civil Theft Claims
The Moving Defendants argue that Parker Excavating’s claims for civil theft and
conversion claims fail as a matter of law because Parker Excavating voluntarily left the eight
specialty signs that form the basis of these claims at the Project at Martin Marietta’s request. I
agree that these claims fail as to Lafarge.
Conversion is “any distinct, unauthorized act of dominion or ownership exercised by one
person over personal property belonging to another.” Stauffer v. Stegemann, 165 P.3d 713, 717
(Colo. App. 2006). “Although the act of conversion takes place at the time the converter takes
dominion over the property, predicates to a successful claim for conversion are the owner’s
demand for return of the property, and the controlling party’s refusal to return it.” Glenn Arms
Associates v. Century Mortg. & Inv. Co., 680 P.2d 1315, 1317 (Colo. App. 1984).
Parker Excavating has not presented any evidence that Lafarge, whose involvement on
the Project was minimal at the time that Martin Marietta requested that Parker Excavating leave
the specialty signs, ever exercised dominion or control over them. Lafarge is therefore entitled
to the entry of judgment in its favor on Parker Excavating’s conversion claim.
2. Civil Theft
Colorado’s civil theft statute provides as follows:
All property obtained by theft, robbery, or burglary shall be restored to the
owner.... The owner may maintain an action not only against the taker thereof but
also against any person in whose possession he finds the property.
C.R.S. § 18-4-405. To prevail on a claim for civil theft under Colorado law, a plaintiff must
show that (1) defendant knowingly obtained control over his property without authorization and
(2) defendant did so with the intent to permanently deprive him of the benefit of the property.
Huffman v. Westmorland Coal Co., 205 P.3d 501, 509 (Colo. App. 2009).
Again, Parker Excavating has not presented any evidence that Lafarge ever exercised
dominion or control over its specialty signs, and Lafarge is therefore entitled to the entry of
judgment in its favor on Parker Excavating’s civil theft claim.
C. Request for Joint and Several Liability
The Moving Defendants argue that Parker Excavating’s request for judgment “jointly and
severally” against Defendants is without merit. Since I have concluded that all Defendants are
entitled to summary judgment on Parker Excavating’s claims for retaliation and discrimination,
the issue of joint and several liability on these claims is moot. Per the preceding section of this
Order, the issue of joint and several liability on Parker Excavating’s claims for conversion and
civil theft is also moot. The only question then is whether Parker Excavating can hold Lafarge
and Martin Marietta jointly and severally liable on it claims for breach of Parker Excavating’s
subcontract or the equipment rental agreements.
The Colorado Court of Appeals has recognized that “[a]n assignment does not relieve the
assignor from liability under the contract.” Roget v. Grand Pontiac, Inc., 5 P.3d 341, 345 (Colo.
App. 1999). “Rather, after the assignment, the assignee becomes primarily liable for the
obligations under the contract, while the assignor remains secondarily liable.” Id. “The debtor
may then sue the assignor, the assignee, of both.” Id.
The parties have provided little evidence regarding Lafarge’s assignment of its
subcontract with Parker Excavating to Martin Marietta or the equipment rental agreements.
Such evidence could impact the parties’ respective liability under these contracts. See 6A C.J.S.
Assignments § 121 (April 2016 Update) (provisions of contract, consent of other contracting
party, or novation of the contract may relieve assignor of liability under the contract). Based on
the evidence currently before me and the legal principles set forth above then, I conclude that
there is at least a triable issue as to whether Lafarge and Martin Marietta are jointly and severally
liable to Parker Excavating on its claims for breach of the subcontract and the equipment rental
D. Request for Termination and Consequential Damages
The analysis set forth above also defeats the Moving Defendants’ argument that they
cannot be liable for any damages that Parker Excavating incurred after Martin Marietta took over
as prime contractor on the Project as a matter of law. However, the Moving Defendants also
joined in Martin Marietta and Guerra’s summary judgment motion wherein they argued that they
were entitled to judgment as a matter of law on Parker Excavating’s claims for consequential
and punitive damages on other grounds. I granted this motion for the reasons set forth in the
Order on that motion, and it follows that Parker Excavating is likewise barred from recovering
consequential and punitive damages from the Moving Defendants.
For the reasons set forth above, IT IS HEREBY ORDERED that:
1. Defendants Lafarge and Fidelity’s Motion for Summary Judgment [Doc # 82] is
GRANTED IN PART and DENIED IN PART;
2. Parker Excavating’s First Claim for Relief for retaliation under § 1981 against Lafarge
is DISMISSED WITH PREJUDICE;
3. Parker Excavating’s Eighth Claim for Relief for conversion against Lafarge is
DISMISSED WITH PREJUDICE;
4. Parker Excavating’s Ninth Claim for Relief for civil theft against Lafarge is
DISMISSED WITH PREJUDICE; and
5. Parker Excavating may not recover consequential or punitive damages on its
remaining claims against Lafarge or on its bond claim against Fidelity.
3 , 2016 in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE
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