Borandi v. Alliance for Sustainable Energy, LLC

Decision Date08 May 2015
Docket NumberCivil Action No. 13-cv-02026-RM-MJW
PartiesTODD BORANDI, individually, Plaintiff/Counter-Defendant, v. ALLIANCE FOR SUSTAINABLE ENERGY, LLC, a Colorado Corporation, Defendant/Counter-Plaintiff.
CourtU.S. District Court — District of Colorado

Judge Raymond P. Moore


This matter is before the Court on Defendant/Counter-Plaintiff Alliance for Sustainable Energy, LLC's ("Alliance" or "Defendant") motion for summary judgment (ECF No. 25) on claims asserted in Plaintiff Todd Borandi's ("Borandi" or "Plaintiff") Complaint (ECF No. 1) as well as on its counter-claims (ECF No. 10).

Plaintiff brought suit against Defendant for allegedly violating (1) Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e-2(a)(1) by discriminatorily discharging him on the basis of his gender (ECF No. 1 ¶¶ 31-37) and (2) Colorado public policy by discharging him because he engaged in protected conduct when he objected to his employer's alleged unlawful use of federal funds (ECF No. 1 ¶¶ 38-42). Defendant counterclaimed against Plaintiff for alleged (1) breach of contract (ECF No. 10, Countercl. ¶¶ 12-19) and (2) quantum meruit (ECF No. 10, Countercl. ¶¶ 20-28).

For the reasons stated below, the Court GRANTS, in part, Defendant's motion for summary judgment and DENIES, in part, Defendant's motion for summary judgment.


Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem. Coal Co., Inc., 41 F.3d 567, 569-70 (10th Cir. 1994). "A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion . . . ." Robertson v. Bd. of Cty. Comm'rs of the Cty. of Morgan, 78 F. Supp. 2d 1142, 1146 (D. Colo. 1999) (citation omitted). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). Once the moving party meets its initial burden of demonstrating an absence of a genuine dispute of material fact, the burden then shifts to the non-moving party to move beyond the pleadings and to designate evidence which demonstrates the existence of a genuine dispute of material fact to be resolved at trial. See 1-800-Contacts, Inc. v., Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation omitted). A fact is "material" if it pertains to an element of a claim or defense; a factual dispute is "genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. In considering whether summary judgment is appropriate, the facts must be considered in a light most favorable to the non-moving party. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013) (citations omitted).

If a movant properly supports a motion for summary judgment, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that "[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact") (citation omitted).

The content of evidence must be admissible to be considered when ruling on a motion for summary judgment. Adams v. Am. Guarantee & Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000); Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1303, 1314 (10th Cir. 2005) (citation omitted) (holding that hearsay evidence is not acceptable in opposing a summary judgment motion); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). Affidavits must be based on personal knowledge and must set forth facts that would be admissible evidence at trial. Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (quotations and citation omitted). "Conclusory and self-serving affidavits are not sufficient." Id. The Court will not consider statements of fact, or rebuttals thereto, which are not material or are not supported by competent evidence. Fed. R. Civ. P. 56(c)(1)(A), 56(e)(2), 56(e)(3). "[O]n a motion for summary judgment, it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without depending on the trial court to conduct its own search of the record." Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (internal quotation and citation omitted). The Court is "not obligated to comb the record in order to make [Plaintiff's] arguments for him." See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000). Further, Local Rule 7.1(e) provides that "[e]very citation in a motion, responseor reply shall include the specific page or statutory subsection to which reference is made." D.C. Colo. L. Civ. R. 7.1(e).

"In order to survive summary judgment, the content of the evidence that the nonmoving party points to must be admissible." Adams, 233 F.3d at 1246 (alteration in original and citation omitted). "The nonmoving party does not have to produce evidence in a form that would be admissible at trial, but "'the content or substance of the evidence must be admissible.'" Adams, 233 F.3d at 1246 (citation omitted). "Evidence presented must be based on more than 'mere speculation, conjecture, or surmise' to defeat a motion for summary judgment." Southway v. Cent. Bank of Nigeria, 149 F. Supp. 2d 1268, 1274 (citations omitted). "Rule 56 expressly prescribes that a summary judgment affidavit must 'be made on personal knowledge, set forth facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.'" Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1210 (10th Cir. 2010) (citation omitted); accord Fed. R. Civ. P. 56(c)(4). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . ., the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or (4) issue any other appropriate order." Fed. R. Civ. P. 56(e).


A. Undisputed Factual Background1,2

The facts as recited below are based on adequate citations to the record, the contents of which would be admissible, or to uncontested averments in the parties' pleadings or to facts marked as undisputed pursuant to the Court's Civil Practice Standards. The facts are recited in a light most favorable to the non-moving party.

1. Excluded Evidence Submitted in Support of and Opposition to Defendant's Summary Judgment Motion
a. E-Mails Dated May 8, 2012 (Exhibit E, ECF No. 28-6)

Plaintiff submits an e-mail exchange dated May 8, 2012 between him and Robert Hanson. (ECF No. 28-6 at 2, Email Dated May 8, 2012.) Plaintiff does not submit any information to authenticate Exhibit E. (See generally Dkt.) Plaintiff submits that Jill Deem testified that "the email identified as Exhibit E is not conveying to Plaintiff that his job is in jeopardy." (ECF No. 33-5 ¶ 34; ECF No. 28-5 at 10, Deem Dep. 221:9-222:12.) But a closer reading of the cited deposition testimony does not identify to which document Deem is referring in her testimony. (See generally ECF No. 28-5 at 10, Deem Dep. 221:9-222:12.) Thus, the document is inadmissible. See Fed. R. Evid. 602, 701, 901(b)(1), 1007.

Further, Plaintiff states that Exhibit E demonstrates that he received a salary increase. (ECF No. 33-5 at ¶ 34.) Exhibit E does not state so. (See generally ECF No. 28-6 at 2, EmailDated May 8, 2012.) Rather, Exhibit E refers to a "bump." (ECF No. 28-6 at 2, Email Dated May 8, 2012.)

b. In Part, Charles Powers' Affidavit (Exhibit C, ECF No. 29-2)

Plaintiff submits an affidavit from Charles Powers ("Chuck Powers") who was employed by Defendant from 1990 until 2013. (ECF No. 29-2 at 1, C. Powers Aff. ¶ 1.) Chuck Powers served as "the manager for the IT Infrastructure and Operations group of the Information Services Office" and reported directly to Jill Deem in that role for fifteen years. (ECF No. 29-2 at 1, C. Powers Aff. ¶ 2-3.) Chuck Powers' affidavit, however, presents no foundation as to how he has knowledge as to Plaintiff's job duties. (See generally ECF No. 29-2, C. Powers Aff.) Therefore, Chuck Powers' affidavit, to the extent that Plaintiff seeks to use it to show what Plaintiff's job duties were (ECF No. 33-5 ¶ 51), is inadmissible because Chuck Power's has not shown he has such personal knowledge and the affidavit is mere conjecture. Johnson, 594 F.3d at 1210; Southway, 149 F. Supp. 2d at 1274.

c. 10 Years of Gender Discrimination Against Males in IT Senior Leadership Roles in NREL's Information Services Office (Exhibit 13, ECF No. 25-13)

Defendant submits a document labeled "10 Years of Gender Discrimination Against Males in IT Senior Leadership Roles in NREL's Information Services Office." (ECF No. 25-13, Power Point Presentation.) Chuck Powers created this document. (ECF No. 29-2 at 2, C. Powers Aff. ¶ 6.) Chuck Powers states he gathered information to create this document. (ECF No. 29-2 at 2, C. Powers Aff. ¶ 6.) Chuck Powers' affidavit, however, fails to identify how he has knowledge as to the facts asserted in this document. (See generally ECF No. 29-2, C. Powers Aff.) Specifically, Chuck Powers' affidavit fails to...

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