Casias v. Raytheon Co.

BRUCE CASIAS, Plaintiff, v. RAYTHEON COMPANY, Defendant.

Civil Action No. 17-CV-2635-MSK-SKC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 13, 2019

Senior Judge Marcia S. Krieger

OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

THIS MATTER comes before the Court upon the Defendant's Motion for Summary Judgment (# 38), the Plaintiff's Response (# 41), and the Defendant's Reply (# 42). For the reasons that follow, the Motion is granted, in part

I. JURISDICTION

The Court exercises jurisdiction under 28 U.S.C. § 1331.

II. BACKGROUND¹

Plaintiff Bruce Casias, who is Hispanic, was employed as a lead test engineer at Defendant Raytheon's Aurora Campus. He worked on Raytheon's contract with the United States Air Force to produce the next generation of satellites — the GPS OCX Program. He reported directly to Joseph Hollon, who ultimately reported to Bill Sullivan through a couple of layers. In 2015, Mr. Casias was responsible for developing and running test procedures called dry runs for the GPS OCX Program. In this capacity, he supervised around 35 employees.

In November 2015, a number of test procedures had been developed but remained incomplete because Mr. Casias and his team encountered defects preventing successful completion. On orders from Program leadership, Mr. Hollon directed Mr. Casias to change these procedures from "incomplete" to "complete". Mr. Casias expressed concern that doing so was unethical and contrary to Raytheon's contract with the Air Force. He also expressed these concerns to Program leadership at a meeting. He nevertheless made the changes, worried that he would be terminated if he did not.

In May 2016, Mr. Hollon reassigned Mr. Casias to a different role in the GPS OCX Program where he developed software scripts. The number of employees under his supervision decreased to two. Mr. Casias and others considered the reassignment a demotion. When Mr. Casias asked why he was being reassigned, Mr. Hollon told him it was due to inaccuracies in the data he had been working with — the same data he had been told to change. The nature of the inaccuracies was that they were caused by Mr. Hollon's prior direction. Mr. Casias sought and obtained employment elsewhere in July.

Raytheon maintains a designation of Engineering Fellow for certain employees who exhibit ingenuity and resourcefulness. During his tenure at Raytheon, Mr. Casias applied for the designation but never received it.

In this action, following the Court's order (# 28) on Raytheon's Motion for Judgment on the Pleadings (# 18), Mr. Casias has two claims: (1) retaliation in violation of the Defense Contractor Whistleblower Protection Act based on his reassignment and constructive discharge, and (2) discrimination on the basis of race/national origin in violation of 42 U.S.C. § 1981 based on not being accepted as an Engineering Fellow. Raytheon moves for summary judgment on both claims (# 38).

III. LEGAL STANDARD

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 Int'l 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. Producers 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).

IV. DISCUSSION

Raytheon seeks summary judgment on both claims. Raytheon argues that Mr. Casias cannot establish a prima facie case of retaliation because his reassignment was not an adverse action, and his protected activity was not a contributing factor in those actions. As to his claim for discrimination, Raytheon contends that there is no evidence his race or national origin was a factor in any of its decisions. The Court discusses each claim in turn.

A. Retaliation

The Defense Contractor Whistleblower Protection Act protects defense-contractor employees who report misconduct on the part of their employers with respect to any Department of Defense contracts. 10 U.S.C. § 2409. The Act expressly incorporates the "legal burdens of proof specified in section 1221(e) of title 5." 10 U.S.C. § 2409(c)(6). 5 U.S.C. § 1221(e), in turn, requires that an employee show his protected activity was a "contributing factor" in an adverse employment action taken against him, and allows the contractor to then demonstrate, by clear and convincing evidence, that it would have taken the same personnel action notwithstanding the protected activity. 5 U.S.C. § 1221(e). Thus, to establish a prima facie case under of retaliation under the Act, a plaintiff must prove that (1) he engaged in protected activity, (2) he suffered an adverse employment action, and (3) such protected activity was a contributingfactor in the adverse action taken against him. See Cejka v. Vectrus Sys. Corp., 292 F. Supp. 3d 1175, 1192 (D. Colo. 2018); United States ex rel. Cody v. Mantech Int'l Corp., 207 F. Supp. 3d 610 (E.D. Va. 2016). Protected activity under the Act includes reporting evidence of gross mismanagement of a DOD contract or a substantial danger to health or public safety. 10 U.S.C. § 2409(a)(1)(A).

1. Adverse Employment Action

Mr. Casias alleges that his reassignment was an adverse employment action.² Raytheon contends that Mr. Casias' reassignment was not a demotion and therefore was not adverse. The Act's statutory definition of an adverse employment action encompasses more than simple a discharge.

10 U.S.C. § 2409(a) protects employees who are "discharged, demoted or otherwise discriminated against" as a result of engaging in protected activity. The Court has not found any authority interpreting this passage. Raytheon points the Court to a large collection of Tenth Circuit authority that appears to be outdated. In 2006, the Supreme Court overhauled what the Court may consider to be adverse employment actions for purposes of retaliation under Title VII. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68-70. Specifically, in White, the Supreme Court held that "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse". Id. at 68. Though Title VII differs slightly from the Act, the Court applies this objective-reasonableness analysis over the prior Tenth Circuit authority for two reasons. First, otherwise discriminated against is so broad that it could encompass a wide variety of conduct without consideration of a reasonableness component, andsecond, Title VII is essentially the exemplar that all antidiscrimination and antiretaliation provisions follow.

Looking to the context in this case, the Court notes that Mr. Casias was reassigned, but he experienced no reduction in pay, no change in benefits, no change in title, and no change in supervisor. As far as the Court can see, two things changed: the number of people directly reporting to him and the scope of his work. Mr. Casias went from supervising around 35 employees to supervising two. And he went from developing and running test procedures on software in the GPS OCX program to developing software test scripts for the GPS OCX program (# 41-4 at 52:12-15, 77:13-16.) The central fact that Mr. Casias must prove is that these changes were objectively so much less desirable that the transfer can be considered materially adverse.

On this question, Ms. Casias has come forward with the following evidence. Though his affidavit contains mostly statements about his discrimination claim, his deposition mentions "lots of people" who considered his reassignment a demotion. (# 41-4 at 154:24-155:22.) The affidavit of Karl Sheldon explains why his reassignment, which appears to have been the same as Mr. Casias' reassignment, was a demotion — because he was reduced to managing nothing and merely supporting the effort. (# 41-1 ¶ 9.) He also states that Mr. Hollon told him he was "rem...