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

United States District Court, D. Colorado

January 8, 2015

PARKER EXCAVATING, INC., a Colorado corporation, Plaintiff,
LAFARGE WEST, INC., a Delaware corporation, MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation, NICK GUERRA, ALF RANDALL, in his individual capacity, and ROBERT SCHMIDT, in his individual capacity, Defendants.


LEWIS T. BABCOCK, District Judge.

This case is before me on Defendants Alf Randall and Robert Schmidt's (collectively the "County Defendants") Motion to Dismiss [Doc # 22]. After consideration of the motion, all related pleadings, and the case file, I grant the County Defendants' motion in part and deny it in part.

I. Background

This action arises out of a road construction project in Pueblo County, Colorado known as the South McCulloch Boulevard Roadway/Drainage Improvement Project (the "Project"). Defendant Lafarge West, Inc. and ("Lafarge") Defendant Martin Marietta Materials, Inc. ("Martin Marietta") each served as general contractor during portions of the Project. Plaintiff Parker Excavating, Inc. ("PEI") is a Native American owned business that served as a subcontractor on the Project. The County Defendants were employees of the Public Works Department of Pueblo County during the course of the Project.

PEI has asserted claims against the County Defendants in their individual capacities for retaliation under 42 U.S.C. §§ 1981(First Claim for Relief) and for retaliation under 42 U.S.C. § 1981 "through § 1983" (Third Claim for Relief) and against County Defendant Randall in his individual capacity for discrimination under 42 U.S.C. §§ 1981 & 1981 "through § 1983"(Second Claim for Relief). The County Defendants argue that they are entitled to the dismissal of all of PEI's claims against them.

II. Factual Allegations

For purposes of their motion, the County Defendants accept the following materials facts in the Amended Complaint as true unless otherwise noted:

On or about June 8, 2011, Greg Parker ("Parker"), an officer of PEI, met with Defendant Nick Guerra, a representative of Lafarge, and reached an oral agreement for PEI to perform subcontracting work, including traffic control, for the Project. Id. at ¶¶ 16 & 17. This oral agreement was later committed to writing. Id. at ¶ 20. A subsequent attachment to the written subcontract specifically exempted PEI from providing a bond for its work on the Project. Id. at ¶ 22.

Sometime in June of 2011, PEI began expressing concerns with County Defendant Randall's planned method of traffic control for the Project. Id. at ¶ 25. Around this same time, PEI alleges that County Defendant Randall was treating PEI in an "unprofessional manner." Id. at ¶ 26. On or about July 12, 2011, Parker called Pueblo County Commissioner John Cordova ("Cordova") regarding County Defendant Randall's conduct. Id. at ¶ 28. Parker informed Cordova of PEI's status as a Native American company with Native American employees and officers and his belief that County Defendant Randall's actions were motivated by his dislike of affirmative action or some past animus. Id.

On July 13, 2011, Guerra asked Parker to sign apology letters to the County Defendants and a letter of reprimand or face removal from the Project. Id. at ¶ 29. Parker complied with Guerra's request. Id. at ¶ 30. PEI alleges that it was excluded from weekly construction meetings for the Project and suffered "unprofessional treatment" by Lafarge and the County as a result of its complaints. Id. at ¶¶ 31 & 32.

PEI alleges that the County Defendants caused PEI to be treated in an "unprofessional manner" in a number of ways from June 28, 2011 through December 7, 2011. Id. at ¶ 33. PEI wrote a letter to Lafarge dated November 3, 2011 in which it informed Lafarge of "perceived discrimination" and detailed some of what it characterizes as "instances of... unprofessional conduct. Id. at ¶ 34. PEI then wrote a letter to County Defendant Randall dated December 7, 2011 in which it stated that "the discrimination shown by Pueblo County towards PEI is unwarranted" and that the County Defendants "have made it clear from the beginning of the Project that they did not want [PEI] to be onsite." Id. at ¶ 36.

By letter dated December 12, 2011, County Defendant Randall advised Guerra that PEI/Parker's reaction to a letter regrading deficiencies in traffic control for the Project was not acceptable and asked Guerra to take "whatever steps you deem appropriate to assure that this conduct does not continue." Id. at ¶ 43. By letter of the same date, Guerra advised Parker that all subcontractors with contracts in excess of $20, 000 were required to provide a bond in order to continue working on the Project. Id. at ¶ 44. In this letter, Guerra further stated that since PEI had indicated that it was unable to provide a bond it would have to "vacate the Project." Id. On or about December 17, 2011, Martin Marrietta and/or Lafarge terminated PEI's subcontract for the Project. Id. at ¶ 59.

III. Standard of Review

Under Rule 12(b)(6), "[d]ismissal is appropriate only if the complaint, viewed in the light most favorable to plaintiff, lacks enough facts to state a claim to relief that is plausible on its face." United States ex rel. Conner v. Salina Regional Health Center, 543 F.3d 1211, 1217 (10th Cir. 2008) (quotations and citations omitted). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) ( quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "The plausibility ...

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