Parker Excavating, Inc. v. Lafarge West, Inc.
2017 U.S. App. LEXIS 12856
| 10th Cir. | 2017Background
- PEI, a Native American–owned subcontractor on a Pueblo County road project, alleges County employees discriminated against it and that its VP Greg Parker complained about that discrimination.
- Lafarge was the original general contractor and subcontracted PEI; Martin Marietta Minerals (MMM) later replaced Lafarge as general contractor. Nick Guerra worked for both Lafarge and MMM.
- After Parker complained to a County commissioner and sent letters alleging discrimination, Lafarge (through Guerra) sent a reprimand and demanded apology letters; later Guerra/MMM sent letters asking PEI to vacate the project and requiring a new bonded subcontract.
- PEI sued under 42 U.S.C. § 1981 for retaliation (among other claims); the district court granted summary judgment to MMM and Guerra (forfeiture of legal theory) and to Lafarge (no adverse action by Lafarge).
- On appeal, the Tenth Circuit affirmed as to MMM and Guerra (PEI forfeited its argument that opposing third‑party conduct is protected) and reversed as to Lafarge (genuine factual dispute whether Lafarge took materially adverse action, e.g., December 12 letter signed/cc’d by Lafarge personnel).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether opposing third‑party (County) discrimination qualifies as "protected opposition" under § 1981 | PEI: its complaints to County officials and letters were protected opposition supporting § 1981 retaliation | MMM/Guerra: PEI cannot base § 1981 retaliation on opposing third‑party conduct absent defendant's own discriminatory conduct or control | Forfeited by PEI in district court; affirmed for MMM and Guerra (appellate court declined to consider new theory) |
| Whether Lafarge took an adverse action sufficient for a § 1981 retaliation prima facie case | PEI: Lafarge participated in termination/asked PEI to vacate (letters signed by Guerra as Lafarge employee, copied to Lafarge managers) | Lafarge: MMM, not Lafarge, took over and terminated PEI; no adverse action by Lafarge | Reversed as to Lafarge — genuine issue of material fact exists about Lafarge's role/adverse action |
| Standard for adverse action in § 1981 retaliation claims | PEI: Burlington standard applies — materially adverse if would dissuade reasonable employee/contractor | Defendants: argued actions were not materially adverse or were taken by MMM, not Lafarge | Court applies Burlington standard and finds triable issues as to Lafarge; remands for further proceedings |
| Forfeiture/plain‑error review of new legal theory on appeal | PEI: argued on appeal it could impute County discrimination to MMM/Guerra (imputation theory) | Defendants: issue was not raised below — appellate review should be forfeiture/plain‑error only | Court enforces forfeiture doctrine; PEI did not show plain error, so argument rejected for MMM/Guerra |
Key Cases Cited
- CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008) (§ 1981 prohibits racial discrimination and retaliation for opposing it)
- Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (retaliation element in civil‑rights claims)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (retaliation adverse‑action standard: materially adverse if it would dissuade a reasonable worker)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden‑shifting framework for discrimination/retaliation claims)
- Twigg v. Hawker Beechcraft Corp., 659 F.3d 987 (10th Cir. 2011) (Title VII principles apply to § 1981 retaliation; summary judgment standard)
- Richison v. Ernest Group, Inc., 634 F.3d 1123 (10th Cir. 2011) (forfeiture/plain‑error review for new arguments raised first on appeal)