United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Alliance for
Sustainable Energy, LLC's Motion for Summary Judgment
[Docket No. 47]. The Court has subject matter jurisdiction
under 28 U.S.C. §§ 1331 and 1367. See
Docket No. 1 at 2, ¶ 3.
case arises out of the termination of plaintiff's
employment. From January 7, 2013 to November 17, 2016,
plaintiff worked for defendant Alliance for Sustainable
Energy, LLC (“Alliance”) as a Protective Force
Officer (“PFO”) in the Office of Security and
Emergency Preparedness (“OSEP”) at the National
Renewable Energy Laboratory (“NREL”) in Golden,
Colorado. Docket No. 47 at 2, 5, ¶¶ 1, 18.
Plaintiff suffers from Post-Traumatic Stress Disorder
(“PTSD”), Bi-Polar II disorder, depression, and
anxiety. Docket No. 53 at 5, ¶ 8. He informed Alliance
of these conditions at the time he was hired. Docket No. 53
at 5, ¶ 9. Plaintiff's conditions were well managed
throughout his employment with the use of medication, Docket
No. 53 at 5, ¶ 8, and plaintiff was able to perform his
job duties. Docket No. 47 at 5, ¶ 23.
7, 2016, plaintiff asked another PFO, “[W]ho's the
wise person who put the belt clips on all of the
radio batteries?” Docket No. 53 at 6, ¶ 14.
Seconds later, another employee, Jeffrey Kastella, entered
the room in an angry manner, popped off the belt clips from
the batteries with a knife, and turned toward plaintiff.
Id. at 6-7, ¶¶ 16-17. Believing that Mr.
Kastella was trying to intimidate him, plaintiff filed an
internal complaint with Alliance's Human Resources
Department and a criminal complaint with the Jefferson County
Sheriff's Office (“JCSO”) on July 7, 2016.
Id. at 3, ¶¶ 8-9; Docket No. 53 at 7,
¶¶ 22-23. After an investigation, which Alliance
was aware of, the JCSO determined that no crime had been
committed. Docket No. 47 at 4, ¶ 11.
director of OSEP, Joseph Thill, id. at 2, ¶ 2,
did not discuss the police report or investigation with
plaintiff for four months after the knife incident.
Id. at 4, ¶ 13. However, on November 16, 2016,
plaintiff was ordered to meet with Mr. Thill and Donna
Wachter, Alliance's human resources manager. Plaintiff
was not provided any information concerning the nature or
subject matter of the meeting beforehand. Docket No. 53 at
9-10, ¶¶ 33-36. Plaintiff emailed Mr. Thill, Ms.
Wachter, and people in Human Resources, the Ombudsman's
office, and the legal department to ask what the meeting was
about, but received no response. Id., ¶¶
35-36. On November 15, 2016, plaintiff encountered Mr. Thill
outside of work. Id. at 10, ¶ 38. Referring to
the next day's meeting, Mr. Thill told plaintiff that
“not everything is a conspiracy” and that he and
Ms. Wachter “just wanted to sit down and see how
[plaintiff] was doing.” Id., ¶¶
38-39. Mr. Thill also stated to plaintiff, “[Y]ou are
weird.” Id. at 6, ¶ 13.
the meeting on November 16, 2016, Mr. Thill asked plaintiff
about alleged inconsistencies in his statements to Ms.
Wachter and the JCSO about the knife incident with Mr.
Kastella. Docket No. 47 at 4, ¶ 15; Docket No. 53 at 10,
¶ 43. Mr. Thill questioned plaintiff in an angry manner
and threatened to file a complaint against the investigator
from the JCSO regarding his statement that Mr. Kastella had a
propensity for violence. Docket No. 53 at 11-13, ¶¶
44, 54-55, 61-62. Mr. Thill also stated that he did not trust
plaintiff “because of the knife incident.”
Id. at 13, ¶ 64. Plaintiff was the only
employee interviewed about inconsistencies in his statements
even though at least two other employees had also made
inconsistent statements to Ms. Wachter and the JCSD regarding
the knife incident. Id. at 14, ¶¶ 70-72.
November 17, 2016, Mr. Thill informed plaintiff over the
phone that he was being terminated. Docket No. 47 at 5,
¶¶ 18-19. Plaintiff's written notice of
termination, which he received the following day, stated that
plaintiff was being terminated due to his “continued
and repeated pattern of misrepresentations related to
workplace situations over the past two years.”
Id. at 5, ¶ 21; see also Docket No.
47-4 (notice of termination). Until his termination,
plaintiff had an excellent performance record at Alliance and
had never been reprimanded for misrepresenting a workplace
situation. Docket No. 53 at 4-5, ¶¶ 2-3, 5-6.
filed this lawsuit on February 26, 2018. Docket No. 1.
Plaintiff asserts claims against Alliance for (1) disability
discrimination in violation of the Americans with
Disabilities Act of 1990 (“ADA), as amended, 42 U.S.C.
§ 12101 et seq., and the Rehabilitation Act of
1973, 29 U.S.C. § 701 et seq.; (2) violation of
Colo. Rev. Stat. § 24-34-402.5; and (3) wrongful
discharge in violation of Colorado public policy.
Id. at 14-17. Plaintiff also alleges a claim against
Mr. Thill for intentional infliction of emotional distress.
Id. at 18-19. On February 21, 2019, Alliance
(“defendant”) moved for summary judgment on
plaintiff's first three claims for relief. Docket No. 47.
Plaintiff filed a response to the motion on March 14, 2019,
Docket No. 53, to which defendant replied on March 28, 2019.
Docket No. 56.
judgment is warranted under Federal Rule of Civil Procedure
56 when the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-50 (1986). A disputed fact is “material” if
under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only
disputes over material facts can create a genuine issue for
trial and preclude summary judgment. Faustin v. City
& Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir.
2005). An issue is “genuine” if the evidence is
such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
“the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden at the summary
judgment stage by identifying a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Bausman v. Interstate Brands Corp.,
252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation
marks omitted) (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 671 (10th Cir. 1998)). “Once
the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v.
City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The nonmoving party may not rest solely on the
allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue
for trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986) (internal quotation marks omitted). “To
avoid summary judgment, the nonmovant must establish, at a
minimum, an inference of the presence of each element
essential to the case.” Bausman, 252 F.3d at
1115. When reviewing a motion for summary judgment, a court
must view the evidence in the light most favorable to the
non-moving party. Id.