United States District Court, D. Colorado
VICTOR CEJKA, JAMES WALKER, STEVEN WASCHER, JAMIE LYTLE, and PAUL CROSS, Plaintiffs,
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.
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 Vectrus has withdrawn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that defense withdrawn from the operative pleading.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.
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.
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
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.
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).
“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.
First, Second, Eighth and Ninth Defenses
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.”)).
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.
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