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Kooienga v. Guaranty Bank & Trust Co.

United States District Court, D. Colorado

December 14, 2018

BRIAN KOOIENGA, an individual, Plaintiff,
v.
GUARANTY BANK AND TRUST COMPANY, a Colorado Corporation, Defendant.

          ORDER

          LEWIS T. BABCOCK, JUDGE

         This 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.

         I. Facts

         This 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.

         A. Background

         Defendant 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.

         B. 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.

         In 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, ¶ 6.

         C. Investigation of Chris Erickson

          In 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.

         On 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.

         One day 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, ¶ 25.

         D. Plaintiff's corrective action notice

         On 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.

         E. Reduction in force and termination

         In 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.

         In the 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 ...


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