Collardey v. Alliance for Sustainable Energy, LLC

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND^[1]

         This 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.

         On July 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.

         The 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.

         During 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.

         On 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.

         Plaintiff 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.

         II. LEGAL STANDARD

         Summary 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).

         Where “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.

         III. ANALYSIS

         A. ...