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Donmoyer v. Quanta Services, Inc.

United States District Court, D. Colorado

November 9, 2017

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

          Richard P. Matsch, Senior District Judge.

         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 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 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 ...


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