Cole et al v. Quanta Services et al

Filing 106

ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT AND RELATED PROCEDURAL MOTIONS Defendants' Motion to Strike the Declaration of Michael DonMoyer Doc. 96 is DENIED; Plaintiff's Motion Seeking Leave to File Supplemental Declaration in Oppo sition to Defendants' Motion for Partial Summary Judgment Doc. 102 is GRANTED; and Defendants' Motion for Partial Summary Judgment Doc. 88 is GRANTED with regard to Plaintiff's First Claim for Relief alleging gender- based discrimination under Title VII; and DENIED with regard to Plaintiff's Second Claim for Relief alleging retaliation for protected activity under Title VII, by Judge Richard P. Matsch on 11/9/17. (ktera)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 15-cv-01992-RPM
MICHAEL DONMOYER,
Plaintiff,
v.
QUANTA SERVICES, INC. and
QUANTA POWER GENERATION, INC., and
QUANTA POWER INC.,
Defendants.
ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT AND RELATED
PROCEDURAL MOTIONS
Plaintiff Michael DonMoyer alleges that Defendants Quanta Services, Inc. (QSI) and its
wholly-owned subsidiaries, Quanta Power Generation, Inc. (QPG) and Quanta Power, Inc.
(QPI), subjected five female former employees to gender-based discrimination and retaliation by
harassing them, subjecting them to a hostile work environment, and demoting them and
terminating their employment because of their gender and/or for complaining about
discriminatory conduct. Those five women—Cynthia Cole, Patsy Baynard, Marta Farrell, Diane
Giacomozzi, and Kimberly Kullen—were plaintiffs along with DonMoyer when this action was
filed, but they have since settled and dismissed their claims.
Remaining in the case are DonMoyer’s claims that because he hired and promoted the
five female executives, maintained a close relationship with them, and resisted the hostility to
which Defendants’ employees subjected them, Defendants discriminated and retaliated against
him as well. He alleges that Defendants failed to promote him from President of QPG to CEO of
QPI, as previously promised, and instead hired a less qualified man, John McCann, who

expressed hostility to female employees, engaged in a pattern and practice of eliminating female
employees at QPG and QPI and replacing them with men, and ultimately fired DonMoyer as
well.
DonMoyer brings two claims asserting violations of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e, et seq. The first alleges gender-based discrimination in
Defendants’ failure to promote him and termination of his employment. The second alleges the
failure to promote and termination were in retaliation for his association with the female
executives and his resistance to gender-based discrimination against them.
Procedural Motions Related to the Motion for Partial Summary Judgment
In support of his response to Defendants’ Motion for Partial Summary Judgment,
DonMoyer filed a Declaration setting forth his version of certain events and facts. See Doc. 91-1.
Defendants filed a motion to strike all or portions of that Declaration asserting (1) it did not
comply with Fed. R. Civ. P. 56 and 28 U.S.C. § 1746 because it did not state that it was “true
and correct’ and signed “under penalty of perjury”; and (2) some statements in the Declaration
are not based on personal knowledge, are hearsay, or attempt to create sham issues of fact by
contradicting DonMoyer’s deposition testimony.
In response to the motion to strike, DonMoyer filed a Supplemental Declaration stating
that he has personal knowledge of the matters stated, affirming that the Supplemental
Declaration is made “under penalty of perjury,” repeating the statements in the 25 paragraphs of
the original Declaration, and adding five additional paragraphs purporting to “clarify” certain
matters raised in Defendants’ Motion to Strike. See Doc. 99-1. In reply, Defendants argue that all
or at least the five new paragraphs of the Supplemental Declaration should also be stricken
2

because it is untimely, was filed without leave of the Court, and will prejudice Defendants.
Defendants’ reply prompted DonMoyer to file yet another motion (Doc. 102), this time
seeking leave after the fact to file the Supplemental Declaration. Defendants complain that this
motion is also untimely and that the Supplemental Declaration should not be permitted because
it contains new factual statements that are different or additional to what DonMoyer said in his
deposition and it would be unfair and prejudicial to allow DonMoyer to just “toss them into the
record” at this point.
The Court has reviewed the parties’ arguments on these procedural issues and, without
further belaboring the matter, finds and concludes that any argued inadequacy in the form of the
original Declaration has been cured; that DonMoyer has shown sufficient cause to file the
Supplemental Declaration; that Defendants’ evidentiary objections go principally to the weight
rather than the admissibility of the statements to which they are directed; and that none of those
objections has sufficient merit to warrant striking any or all of either the original Declaration or
the Supplemental Declaration.
The Motion for Partial Summary Judgment
The following facts are supported by evidence in the record:
QSI is a corporation with its principal place of business in Houston, Texas. Through a
network of subsidiaries, QSI builds and maintains transmission and distribution infrastructure
and provides related services to the electric power and oil and natural gas industries. QPI and
QPG are wholly-owned subsidiaries of QSI, each with its principal place of business in
Colorado. At the times relevant here, the CEO of QPI oversaw a group of QSI’s subsidiaries,
including QPG, and QPG reported to QSI through QPI. QPG provided construction services in
3

the fields of solar, natural gas, energy storage, fuel cell technology, and biofuels. QSI’s
management selected or approved the CEOs and Presidents of both QPG and QPI.
DonMoyer, a white man, is former President of QPG. He and Chris Laursen were
engaged by QSI in 2010 to build a full service engineering / procurement / construction (EPC)
company focused on coordinated marketing, bidding, engineering, procurement, and
construction of renewable energy generation projects. The company was first incorporated as
Quanta Renewable Energy Services, Inc. (QRES), and Laursen and DonMoyer became QRES’s
CEO and Executive Vice President, respectively. QRES was reorganized in 2011 and its name
was changed to QPG. DonMoyer became President of Operations of QPG, and Jeffrey Schmidt
became the President of Construction for QPG. In the spring of 2012, Schmidt left QPG, leaving
DonMoyer as sole President of QPG.
In 2012, Laursen’s CEO position, human resources, and certain administrative staff
positions were moved to QPI, but DonMoyer continued to report to Laursen, who in turn
reported to QSI. The corporate structure was such that QSI exercised direct management and
control over many aspects of QPI’s and QPG’s businesses, including filling the roles of
President of QPG and CEO of QPI, reviewing their performance, and determining their
compensation and continued employment.
Laursen was expected to retire as CEO of QPI during 2013. DonMoyer had been
promised a promotion to Laursen’s position, and a succession plan submitted to QSI by QPI
identified him as Laursen’s successor. Instead, QSI hired John McCann as QPG’s CEO, and his
employment there began on April 1, 2013. In relatively short order, the employment of
DonMoyer and the five female former plaintiffs was terminated.
4

The facts are disputed regarding the reasons for these adverse employment actions, but
evidence submitted by DonMoyer supports his allegations that the firings resulted from his
actions to hire, promote and support women in executive positions at QPG and QPI.
The EPC business model DonMoyer was engaged to build required centralized controls
over project bidding, engineering, procurement, and construction. He and Laursen hired women
to fill key executive positions that exercised audit and control functions affecting the autonomy
of construction services companies under QPI supervision. The construction sector of QPG/QPI
expressed resentment and hostility over these controls. Male construction workers directed
insults toward female control personnel who reported to and were acting under DonMoyer’s
direction. One of DonMoyer’s responsibilities was to deal with these issues. He informed
construction personnel that their actions would not be tolerated and they were obligated to work
with the women and comply with their directions. This did not sit well with construction
management, causing at least three construction managers to leave, be removed, or be
transferred. Two of the construction managers, Jeffrey Schmidt and Jack Cowart, had longstanding friendships with QSI CEO Jim O’Neil and COO Earl “Duke” Austin. Cowart, until his
transfer from under DonMoyer’s direction in April 2013, led the construction group that had
directed insults toward female employees.
In the fall of 2012, QSI sector manager Ken Trawick—to whom Laursen reported
directly and who reported directly to QSI’s COO and CEO—made a trip to Denver for a private
meeting with DonMoyer. Trawick told DonMoyer that men in construction were communicating
discontent to DonMoyer’s superiors at QSI, CEO O’Neil and COO Austin. Trawick did not say
who was making the complaints, but referred to the tension as a “clash of cultures” and said that
5

DonMoyer needed to take measures to reduce pressures on the men in the construction sector.
During the meeting, DonMoyer acknowledged the clash but clarified that much of it consisted of
gender-based hostility directed by the men in construction towards the women who reported to
DonMoyer. He stated that he felt they were making progress in resolving the issues.
McCann was offered the job of QPI CEO in January 2013. Before he was selected to be
CEO, McCann’s professional experience had principally involved telecommunications
construction projects and included only limited time in a managerial role for a large energy
project. He had once been employed by QSI as CEO of a telecommunications construction
company, Conti Communications, where his work did not include direction of an EPC business
model.
Neither DonMoyer nor Laursen was notified about McCann’s hiring until shortly before
his arrival in April 2013. On McCann’s first day in Denver, he told DonMoyer that O’Neil and
Duke Austin disliked DonMoyer and had wanted to terminate his employment five months
earlier. He further stated that O’Neil and Austin told him there were too many women in
management for a construction company, that DonMoyer was responsible for that, and that he
(McCann) had been appointed as CEO to correct that problem. In a private conversation with
Laursen on the same day, McCann stated: “Jim O’Neil thinks there’s too many fucking women
in the company, and I’m here to fix that.”
After assuming the role of CEO at QPI in April 2013, McCann refused to meet with the
female executives DonMoyer had hired. McCann terminated the employment of QPI Human
Resources Director Cole, to whom vulgar comments had been directed during by construction
employees, on June 4, 2013; Director of Project Management Baynard on August 1, 2013;
6

Director of Safety Kullen on September 9, 2013; and DonMoyer and QPG’s in-house counsel,
Farrell, who had joined DonMoyer in opposing the terminations of Cole, Baynard, and Kullen,
on September 26, 2013. McCann also removed Giacomozzi from her role as cost controller
(which involved controls over the construction sector), placed her in the role of director of
business development, and terminated her from that role on July 23, 2014.
DonMoyer was significantly involved in hiring, training, mentoring, and evaluating all of
these women, and developed working friendships with them. All reported to both DonMoyer and
Laursen, and DonMoyer regarded them as crucial to the EPC organization he and Laursen had
built and to his own successful performance and compensation at QPG.
Defendants seek summary judgment on both the failure to promote and termination
aspects of DonMoyer’s First Claim for Relief, for discrimination, arguing that he cannot
establish a prima facie case of sex discrimination in violation of Title VII.
To establish a prima facie case of gender discrimination through circumstantial evidence,
DonMoyer must show that he is a member of a protected class, he suffered an adverse
employment action, and the challenged action occurred under circumstances giving rise to an
inference of discrimination. Bennett v. Windstream Comm’ns., Inc., 792 F.3d 1261, 1266 (10th
Cir. 2015). By its terms, Title VII prohibits sex discrimination only if it is based on a plaintiff’s
own gender. 42 U.S.C. § 2000e-2(a)(1) (providing that it is unlawful for an employer “to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin” (emphasis added)).
DonMoyer has submitted no evidence that he was discriminated against because he is
7

male, but rather claims he was discriminated against because of his association with and
advocacy for the female executives he hired, promoted, and supervised. He has cited no case
from the Tenth Circuit Court of Appeals recognizing a claim for associational gender
discrimination—or even for discrimination based on association with members of another
protected class, such as race. See Salazar v. City of Commerce City, No. 10-CV-01328-LTBMJW, 2012 WL 1520124 *6 (D. Colo. May 1, 2012), aff’d, 535 Fed. App’x 692 (10th Cir. 2013)
(noting the dearth of Tenth Circuit case law supporting a Title VII claim for national origin
discrimination based on association).
Cases recognizing associational race discrimination claims reason that such
discrimination is unlawful when the evidence reflects the employer’s disapproval of the
employee’s interracial association, and thus is taking the plaintiff’s own race into account. See,
e.g., Holcomb v. Iona College, 521 F.3d 130, 139 (2d Cir. 2008) (holding that “where an
employee is subjected to adverse action because an employer disapproves of interracial
association, the employee suffers discrimination because of the employee’s own race”).
DonMoyer has not cited and the Court is not aware of any cases employing a similar
rationale in the sex discrimination context. Even if such a claim is cognizable in theory,
DonMoyer has not produced any evidence supporting an inference that Defendants discriminated
against him because they disapproved of the inter-gender association between him and his
female subordinates, and thus that he was discriminated against because of his own gender, not
theirs.
Plaintiff’s heavy reliance on Thompson v. North American Stainless, LP, 131 U.S. 863
(2011), is not well-taken. Thompson was a Title VII retaliation case, and the Court explicitly
8

emphasized the difference between Title VII’s anti-discrimination and anti-retaliation
provisions. Id. at 173-74. The specific issue decided was whether an employee had standing to
bring a Title VII claim after he was fired as retaliation against his fiancée, who had engaged in
protected activity by filing an EEOC charge against the employer. Id. In applying a “zone of
interest” analysis to determine whether the plaintiff was a “person aggrieved” for Title VII
purposes, the Supreme Court emphasized that the plaintiff was not merely “collateral damage,”
but was fired as the intended means of harming his fiancée, in retaliation for her filing an EEOC
charge. Id. at 178. The Court therefore determined that the plaintiff could sue for harm he
suffered from the employer’s action, even though he had not engaged in protected activity
himself. Thompson’s analysis of that retaliation claim does not support DonMoyer’s
discrimination claim here.
With regard to DonMoyer’s retaliation claim, Defendants move for summary judgment
only as to the failure to promote, and not as to the termination of his employment.
Retaliation against an employee for opposing any practice made unlawful by Title VII is
forbidden. Lounds v. Lincare, Inc., 812 F.3d 1208, 1233 (10th Cir. 2015). A plaintiff must
establish that retaliation “played a part in the employment decision” and may meet that burden
through either direct or circumstantial evidence. Id. at 1233. If the latter route is chosen, courts
apply the three-part McDonnell Douglas framework, the first step of which is to establish a
prima facie case of retaliation by proving “(1) that [s]he engaged in protected opposition to
discrimination, (2) that a reasonable employee would have found the challenged action
materially adverse, and (3) that a causal connection existed between the protected activity and
the materially adverse action.” Id. at 1233–34 (10th Cir. 2015) (quoting Argo v. Blue Cross &
9

Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir.2006)).
The Tenth Circuit has cautioned, in the context of employment discrimination cases, that
“[i]t is not the purpose of a motion for summary judgment to force the judge to conduct a ‘mini
{ "pageset": "Sbc59

trial’ to determine the defendant’s true state of mind.” Id. at 1220-21 (quoting

Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir.1995)). “Consequently, ‘in this Circuit ... an
employment discrimination suit will always go to the jury so long as the evidence is sufficient to
allow the jury to disbelieve the employer’s [explanation for the alleged misconduct].’” Id.
(quoting Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1177 (10th Cir.1998) (Tacha, J.,
concurring in part)).
Defendants argue that DonMoyer cannot establish the third element of a prima facie case
of retaliation—that a causal connection existed between Defendants’ decision not to promote
him and any of his alleged protected activity in supporting his female employees.1 Specifically,
Defendants contend that the undisputed evidence shows that the person who made the decision
to hire McCann as CEO of QPI rather than promote DonMoyer was QSI CEO Duke Austin and
that Austin has testified that he had no knowledge when he made that decision of any complaints
by DonMoyer about discriminatory treatment or of any actions taken by DonMoyer to prevent or

1

DonMoyer has produced evidence to support his argument that Defendants have given
inconsistent, pretextual business reasons for not promoting him. Evidence that Defendants gave
inconsistent reasons for not promoting DonMoyer circumstantially supports DonMoyer’s claim
that the actual reason was retaliatory. It should be noted, however, that Defendants’ motion for
partial summary judgment argues only that DonMoyer cannot prove causation, the third element
of a prima facie case of retaliation. The motion does not invoke the second and third steps in the
McDonnell Douglas framework by asserting that even if DonMoyer can prove a prima facie
case, summary judgment is appropriate because there were legitimate grounds for not promoting
him. The motion therefore does not place the burden on DonMoyer to prove pretext at this stage
of the case. See Lounds, 812 F.3d at 1234.
10
10

address discrimination or retaliation.
Here, DonMoyer has produced evidence sufficient to permit an inference by the finder of
fact that QSI’s decision not to promote him was causally related to his actions in hiring,
promoting, and supporting the female executives under his supervision and control and taking
steps to curtail discriminatory and harassing actions against them.
Duke Austin’s self-serving and carefully-worded statements and denials about what he
knew or did not know when he decided not to promote DonMoyer are not sufficient to
overcome, on summary judgment, the potential inferences a jury could draw considering all of
the evidence in the record. That evidence provides a basis to find that Defendants’ top
management—including not only Austin but also O’Neil and Trawick and others—were aware
before McCann was hired that there had been hostile, discriminatory, and harassing behavior
directed against female personnel; that DonMoyer had resisted that behavior; that male
management employees such as Schmidt and Cowart had communicated to QSI’s management
their dissatisfaction about the employment of women in positions of control over the previously
autonomous construction sector of the business; that in the inter-related management structure in
the Quanta companies it was plausible (and even likely) that Austin, as COO of QSI, was aware
of the problems when the non-promotion decision was made; and that McCann, as he put it, was
selected as QPI’s CEO rather than DonMoyer to deal with the problem of “too many fucking
women” in management. Given the evidence, a jury could choose not to believe Austin’s denial
of any knowledge that would support finding a retaliatory motive. Similarly, accepting
Defendants’ narrow and argumentative reading of DonMoyer’s deposition testimony about his
communications with Austin and other management personnel would require the Court to
11
11

improperly weigh the evidence and draw its own inferences from it, rather than leave the factfinding for trial.
In short, there are genuine issues of material fact about whether the decision not to
promote DonMoyer was causally related to activities protected by Title VII.
Based on the foregoing, it is
ORDERED that Defendants’ Motion to Strike the Declaration of Michael DonMoyer
(Doc. 96) is DENIED; it is
FURTHER ORDERED that Plaintiff’s Motion Seeking Leave to File Supplemental
Declaration in Opposition to Defendants’ Motion for Partial Summary Judgment (Doc. 102) is
GRANTED; and it is
FURTHER ORDERED that Defendants’ Motion for Partial Summary Judgment (Doc.
88) is GRANTED with regard to Plaintiff’s First Claim for Relief alleging gender-based
discrimination under Title VII; and DENIED with regard to Plaintiff’s Second Claim for Relief
alleging retaliation for protected activity under Title VII.
DATED:

November 9, 2017
BY THE COURT:
s/Richard P. Matsch
_________________________________
Richard P. Matsch, Senior District Judge

12
12