Oransky v. Martin Marietta Materials, Inc.

          OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          Marcia S. Krieger Senior United States District Judge.

         THIS MATTER comes before the Court pursuant to cross-motions for summary judgment by both sides (# 43, 44), and their associated responses (# 48, 50), and replies (# 51, 52).^[1]

         FACTS

         The pertinent facts are largely undisputed and the Court summarizes them here, elaborating as necessary in its analysis.

         Ms. Oransky was hired by Martin Marietta Materials, Inc. (“MMM”) in September 2014 to work as a Sales Manager in its Aggregate Division. As part of her job duties, Ms. Oransky supervised sales employees who sold MMM products and managed customer relationships. Among MMM's customers in the Aggregate Division is Anadarko Petroleum (“Anadarko”), a company engaged in oil and gas exploration and development. It uses MMM's aggregate products to construct well pads, access roads, and so on. Ms. Oransky's job duties called for her to have frequent contact with Anadarko officials to further sale of MMM products.

         Ms, Oransky resides with her family in Erie, Colorado. On September 27, 2017, Anadarko hosted a “Community Forum” in Erie to discuss its plans for oil and gas development in the area. Ms. Oransky attended the forum, where she met and briefly chatted with an Anadarko official with whom she was acquainted through her work. During the forum, Ms. Oransky - who is concerned about health and environmental consequences associated with oil and gas development - and others protested Anadarko's activities. Ms. Oransky led protesters in a series of call-and-response chants to the effect of “We demand you [Anadarko] leave our community!” and “No drilling, no wells!, ” among others. The protestors succeeded in causing the forum to be cancelled early. After the protest, Ms. Oransky bragged in an online message that she “helped shut down the meeting.” All of the protest activities, as well as the aftermath, were recorded on video and posted on the protestors' public Facebook page.

         When it reviewed the video of Ms. Oransky's activities, MMM became concerned that such activities might harm its business relationship with Anadarko. Within a few weeks of the protest, MMM terminated Ms. Oransky's employment for having taken “actions inconsistent with her job duties and responsibilities, resulting in a conflict of interest with her role at the company.”

         Ms. Oransky commenced this diversity action, asserting three claims for relief against MMM, all arising under Colorado state law: (i) violation of C.R.S. § 24-34-402.5, which prohibits employers from discriminating against employees based on an “due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours”; (ii) wrongful discharge in violation of public policy; and (iii) extreme and outrageous conduct.

         Both Ms. Oransky and MMM move (# 43, 44) for summary judgment in their favor on all claims.

         ANALYSIS

         A. Standard of review

         Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

         If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

         If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         This case involves cross-motions for summary judgment. "Because the determination of whether there is a genuine dispute as to a material factual issue turns upon who has the burden of proof, the standard of proof and whether adequate evidence has been submitted to support a prima facie case or to establish a genuine dispute as to material fact, cross motions must be evaluated independently." In re Ribozyme Pharmaceuticals, Inc., Securities Litig., 209 F.Supp.2d 1106, 1112 (D. Colo. 2002); see also Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000); Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979) ("Cross-motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.").

         B. The statutory claim

         C.R.S. § 24-34-402.5(1) provides that “It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours.” The statute provides certain exceptions, including: (i) where the off-duty activities in question “reasonably and rationally relate[ ] to the employment activities of a particular employee or particular group of employees” (as opposed to all employees of the employer), and (ii) where action by the employer “is necessary to avoid a ...