United States District Court, D. Colorado
T. BABCOCK, JUDGE
matter is before me on the Motion for Summary Judgment filed
by Defendant Guaranty Bank and Trust Company. ECF No. 42. I
have jurisdiction pursuant to 28 U.S.C. § 1331. After
considering the parties' arguments and exhibits, I DENY
Defendants' motion in part and GRANT it in part for the
reasons set forth below.
action arises out of Defendant's termination of
Plaintiff's employment. Based on the briefing and
evidence submitted, the parties agree as follows, unless
noted. Where a dispute exists, I construe the facts most
favorable to the nonmovant.
is a financial institution. ECF No. 42, ¶ 1. In 2000,
Defendant hired Plaintiff Brian Kooienga as a credit analyst.
Id. at ¶ 7. In 2004, Plaintiff became a
relationship manager in Defendant's commercial real
estate group where he was primarily responsible for
developing new sources of revenue and maintaining commercial
banking relationships. Id. at ¶ 8-9. Since
approximately 2011, Plaintiff reported to Executive Vice
President of Commercial Real Estate Banking Chris Erickson.
Id. at ¶ 10. At that time, Mr. Erickson oversaw
two other relationship managers under his chain of command.
Id. at ¶ 11.
Defendant's employee handbook
Defendant has an anti-retaliation policy in its employee
handbook which reads, in pertinent part, that:
The Company prohibits retaliation against any employee for
filing a complaint or for assisting in complaint
investigation. If you perceive retaliation for ma1king a
complaint or for your participation in an investigation,
please use the complaint process listed above so that the
situation may be investigated.
Id. at ¶ 3.
2014, Plaintiff emailed an acknowledgement that he reviewed
the updated employee handbook at the request of Senior Vice
President of Human Resources Rebecca Adauto Harren. ECF No.
42-3. In her email, Ms. Harren linked to the new edition of
the handbook, noted it had been updated, and highlighted
specific changes to the handbook, which related to incentive
and promotional payouts, the inclusion of an ethics hotline,
and a reminder of clean desk expectations. Id. The
handbook contains disclaimer language and a “Receipt of
Handbook Acknowledgement.” ECF No. 42-2. While
Plaintiff did not sign the acknowledgment waiver, he
recognized that his email was “basically [his]
acknowledgement that [he] reviewed the handbook . . .
.” ECF No. 42-4, 30:2-16; Def.'s Reply, ECF No. 55,
Investigation of Chris Erickson
mid-August 2015, an employee of Defendant accused Mr.
Erickson of inappropriate conduct months earlier at an
after-hours function. ECF No. 42, ¶ 15. Defendant
initiated an investigation lead in part by Ms. Harren.
Id. at ¶ 16. Thirteen employees were
interviewed as part of the investigation. Id. at
¶ 17. Plaintiff's interview occurred on August 21,
2015. Id. at ¶ 19.
August 24, Ms. Harren relayed the findings of the
investigation to Defendant's executive team, including
Chief Executive Officer Paul Taylor and President Michael
Hobbs. ECF No. 55, ¶ 22.
after Ms. Harren relayed the findings to the executive team,
Mr. Hobbs issued to Mr. Erickson a “Corrective Action
Notice - Final Written Warning” regarding inappropriate
actions with at least one female employee. ECF No. 63-5
(under seal). The next day, through the corrective action
notice and verbally from Mr. Taylor, Mr. Erickson was
suspended without pay for two weeks, had his bonus reduced,
and was required to participate in anti-harassment training.
ECF No. 42, ¶ 25; Pl.'s Am. Resp., ECF No. 63,
Plaintiff's corrective action notice
August 31, 2015, Mr. Hobbs issued a corrective action notice
against Plaintiff. ECF No. 42, ¶ 12. The corrective
action notice read that Plaintiff made a pricing exception
for a loan without prior written approval and then did not
remedy the situation prior to closing the loan, going against
Mr. Hobbs' direction. ECF No. 42-6. This pricing
exception was done by Plaintiff waiving a fee for a letter of
credit. ECF No. 42, ¶ 12.
Reduction in force and termination
October or November 2015, Defendant began discussions of
eliminating a position. ECF No. 42, ¶ 26; ECF No. 63,
¶ 26. Defendant looked to eliminate a relationship
manager position under Mr. Erickson, who was tasked with
rating the relationship managers through a peer group
analysis. ECF No. 42, ¶ 34; ECF No. 42-1, 64:11-16; ECF
No. 42-5, 46:14-23.
peer group analysis, Mr. Erickson evaluated employees on a
scale of one through five in categories such as: (1) minimum
education required; (2) minimum skills required; (3) overall
industry experience; (4) performance rating; (5) credit
management; (6) compliance; (7) new portfolio growth; (8) new
business development; (9) community involvement; (10)
financial statement performance; (11) meeting or ...