United States District Court, D. Colorado
PAULA A. ORANSKY, Plaintiff,
MARTIN MARIETTA MATERIALS, INC., Defendant.
OPINION AND ORDER GRANTING MOTION FOR SUMMARY
S. Krieger Senior United States District Judge.
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,
pertinent facts are largely undisputed and the Court
summarizes them here, elaborating as necessary in its
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
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.
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.”
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.
Ms. Oransky and MMM move (# 43, 44) for summary judgment in
their favor on all claims.
Standard of review
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).
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.
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).
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
The statutory claim
§ 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