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Cejka v. Vectrus Systems Corp.

United States District Court, D. Colorado

February 21, 2018

VICTOR CEJKA, JAMES WALKER, STEVEN WASCHER, JAMIE LYTLE, and PAUL CROSS, Plaintiffs,
v.
VECTRUS SYSTEMS CORPORATION, f/k/a Exelis Systems Corporation, Defendant.

          ORDER ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON CERTAIN OF DEFENDANT'S AFFIRMATIVE DEFENSES

          Michael E. Hegarty, United States Magistrate Judge.

         Plaintiffs initiated this employment action against Defendants on October 30, 2015, alleging essentially that they suffered adverse employment actions in retaliation for reporting what they believed to be improper conduct affecting security at Bagram Air Force Base in Afghanistan. Plaintiffs allege claims against their former employer, Defendant Vectrus Systems Corp. (“Vectrus”), for common law retaliatory termination (Claim I); violation of 10 U.S.C. § 2409, the Department of Defense whistleblower statute (Claim II); and common law outrageous conduct (Claim III). ECF No. 97. Vectrus filed an answer in response to the operative Amended Complaint raising ten affirmative defenses. ECF No. 104. Here, Plaintiffs seek summary judgment in their favor on eight of the ten defenses, after having engaged in written discovery on these defenses. Vectrus has withdrawn its third affirmative defense for failure to exhaust administrative remedies; accordingly, the Court will order that defense withdrawn from the operative pleading. Otherwise, the Court finds Vectrus' eighth affirmative defense should be stricken, and Vectrus fails to raise genuine issues of material fact regarding its seventh affirmative defense, but the remaining defenses will be neither stricken nor dismissed.

         FINDINGS OF FACT

         The Court incorporates by reference its findings of fact set forth in its February 14, 2018 orders on Vectrus' motions for summary judgment (ECF Nos. 183, 184, 185), and views the facts in the light most favorable to Vectrus, who is the non-moving party in this matter.

         LEGAL STANDARDS

         A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show 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). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         The moving party bears the initial responsibility of providing to the Court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party's claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).

         The non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, if the movant properly supports a motion for summary judgment, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (“[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”) (emphasis in original) (citation omitted); see also Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.'” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment evidence must be generally admissible and . . . if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws all inferences in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).

         ANALYSIS

         An “affirmative defense” is “[a] defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true.” Black's Law Dictionary (10th ed. 2014). Rule 8(c) of the Federal Rules of Civil Procedure instructs that, “In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense . . . .” Fed.R.Civ.P. 8(c). Here, Vectrus has asserted ten affirmative defenses in response to the Plaintiffs' Amended Complaint, and the Plaintiffs seek summary judgment as to eight of these. The Court will address the challenged affirmative defenses in the order argued by the parties.

         I. First, Second, Eighth and Ninth Defenses

         Vectrus is willing to withdraw four of the challenged affirmative defenses-first, second, eighth, and ninth-provided, essentially, that Vectrus has the “right” to raise these four defenses, if necessary, at trial. Notably, if these defenses are not actually “affirmative defenses” as argued by the Plaintiffs, then the Court finds they need not have been pled and are simply denials that may be raised if and/or when appropriate under the circumstances, including at trial. See Home Design Servs. v. Trumble, No. 09-cv-00964-WYD, 2011 WL 843900, at *3 (D. Colo. Mar. 8, 2011) (disagreeing “with the proposition that summary judgment is appropriate on several of the Trumbles' defenses simply because those defenses are more appropriately styled as denials”) (citing Lifeblood Biomedical, Inc., Opt-In Trust v. Mann (In re Sender), 423 F.Supp.2d 1155, 1163 (D. Colo. 2006) (“A defense should not be stricken if there is any real doubt about its validity, and the benefit of any doubt should be given to the pleader.”)).

         The Court agrees with Plaintiffs that the first affirmative defense titled “Adequate Remedy at Law, ” the second defense titled “Excessive Punitive Damages Violate Substantive Due Process, ” and the ninth defense titled “Punitive Damages” will not defeat the Plaintiffs' claims even if their allegations are true and, thus, they are not affirmative defenses. However, as in Trumble, this Court does not find summary judgment proper on these simple “denials” and will deny Plaintiffs' motion as to these denials.

         Regarding the eighth defense, Plaintiffs contend that “Prior Material Breach” may serve as an affirmative defense only to claims involving a contract, but none of Plaintiffs' claims challenges any contract. Vectrus counters that it would be willing to withdraw this defense “provided that its right to re-assert the defense in ...


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