FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 18, 2017

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

PARKER EXCAVATING, INC., a

Colorado corporation,

Plaintiff - Appellant,

v. No. 16-1225

LAFARGE WEST, INC., A Delaware

corporation; MARTIN MARIETTA
MATERIALS, INC., a North Carolina
corporation; FIDELITY AND DEPOSIT
COMPANY OF MARYLAND, a
Maryland corporation; NICK GUERRA,

Defendants - Appellees,

ALF RANDALL, in his individual

capacity; ROBERT SCHMIDT, in his
individual capacity,

Defendants.
_________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
(D.C. No. 1:14-CV-01534-LTB-MJW)
_________________________________

Jennifer K. Fischer, Fischer & Fischer, P.C., Denver, Colorado, appearing for Plaintiff-
Appellant.

William T. OConnell, III (Larry S. McClung and Rachel Ollar Entrican, with him on the
brief), Wells, Anderson & Race, LLC, Denver, Colorado, appearing for Appellees
LaFarge West, Inc. and Fidelity and Deposit Company of Maryland.
Van Aaron Hughes (Jonathan G. Pray and Hannah M. Caplan, with him on the brief),
Brownstein Hyatt Farber Schreck, LLP, Denver, Colorado, appearing for Appellees
Martin Marietta Materials, Inc. and Nick Guerra.
_________________________________

Before HARTZ, MATHESON, and PHILLIPS, Circuit Judges.

_________________________________

MATHESON, Circuit Judge.

_________________________________

This appeal arises from a grant of summary judgment against Plaintiff-

Appellant Parker Excavating, Inc. (PEI) on its civil rights claim against

Defendants-Appellees Lafarge West, Inc. (Lafarge),1 Martin Marietta Minerals,

Inc. (MMM), and Nick Guerra, an employee of Lafarge and MMM.

Lafarge, a construction company, was the primary contractor on a paving

project for Pueblo County, Colorado (the County). PEI, a Native American-owned

construction company, was a subcontractor for Lafarge. MMM replaced Lafarge as

the primary contractor. PEIs participation in the project was terminated before it

entered into a new subcontract with MMM.

PEI alleged Lafarge retaliated against it with a letter of reprimand and a

demand to sign letters of apology after PEI Vice President Greg Parker complained

that County employees discriminated against PEI on the basis of its Native American

ownership. PEI alleged Lafarge, MMM, and Mr. Guerra retaliated against it when it

1
Fidelity & Deposit Insurance Company (Fidelity), Lafarges surety, is also
listed as an Appellee. We do not consider Fidelity a proper party on appeal. The
only claim on appeal, a 42 U.S.C. 1981 claim, was not alleged against Fidelity.
The district court declined to exercise supplemental jurisdiction over the only claim
that was raised against Fidelity.
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was asked to vacate the project after Mr. Parker made further complaints of

discrimination. PEI based the foregoing on 42 U.S.C. 1981, which prohibits racial

discrimination in contracts and retaliation for opposing such discrimination, 42

U.S.C. 1981, CBOCS West, Inc. v. Humphries, 553 U.S. 442, 445-46 (2008).

In separate orders, the district court granted summary judgment on PEIs

1981 retaliation claim to (1) MMM and Mr. Guerra because PEI could not show its

opposition to County employees discrimination was protected opposition under

1981 and (2) Lafarge because PEI could not show Lafarge took an adverse action

against it.

Exercising jurisdiction under 28 U.S.C. 1291, we affirm the grant of

summary judgment to MMM and Mr. Guerra and reverse the grant of summary

judgment to Lafarge.

In their summary judgment motion, MMM and Mr. Guerra argued that PEI

could not base its 1981 retaliation claim on its opposition to the alleged

discriminatory conduct of third-party County employees. PEI failed to respond to

this argument in district court and also has failed to argue on appeal that the district

court plainly erred in granting summary judgment on this ground. Under these

circumstances, we affirm as to MMM and Mr. Guerra.

In its summary judgment motion, Lafarge argued PEI could not show Lafarge

took an adverse action against it. The district court agreed and granted summary

judgment on this ground. On appeal, PEI argues there is a genuine issue of material

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fact on this question. We agree and reverse the grant of summary judgment on the

1981 retaliation claim as to Lafarge.

I. BACKGROUND

A. Factual Background

We present the following facts in the light most favorable to PEI, the non-

moving party on summary judgment. Twigg v. Hawker Beechcraft Corp., 659 F.3d

987, 997 (10th Cir. 2011).

PEI is associated with the Choctaw Tribe. Mr. Parker is PEIs Vice President.

Mr. Guerra was Lafarges estimator and project manager, and then worked for

MMM.

In July 2011, the County hired Lafarge to be the primary contractor on a

roadway and drainage improvement project on South McCulloch Blvd. (the

McCulloch Project). Lafarge subcontracted with PEI for excavation and traffic

control work.

Two provisions of the subcontract are especially relevant. First, in lieu of

PEIs providing a performance bond, Lafarge agreed that it would retain 50 percent

of the funds owed to PEI until PEI completed its work. Second, the arbitration clause

required that [a]ny claim or dispute arising out of this Subcontract . . . be subject to

and determined by binding arbitration . . . . App., Vol. IV at 27.

We present the remaining facts to correspond with the elements of PEIs

1981 retaliation claim: (1) the County employees alleged discriminatory conduct;

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(2) PEIs alleged opposition to that discriminatory conduct; and (3) the Appellees

alleged retaliation for that opposition.

1. Alleged Discrimination, Opposition, and Retaliation June to July 2011

a. Alleged discriminatory conduct

PEI contends Mr. Parker was the target of discriminatory conduct during a pre-

construction meeting on June 28, 2011, attended by County representatives, Lafarge

employees, and other contractors on the McCulloch Project. In that meeting, County

employee Alf Randall wadded up PEIs proposed traffic control diagrams and threw

them in the trash, calling them bullshit. App., Vol. V at 130. PEI alleges Mr.

Randall acted out of discriminatory animus toward PEI based on a comment he had

made during a previous, unrelated construction project (the William White

Project).2 During a payment dispute on that project, Mr. Randall allegedly told Mr.

Parker that he believed affirmative action was bullshit. Id. at 90.

2. Alleged opposition to discrimination

On July 12, 2011, at Mr. Guerras suggestion, Mr. Parker called County

Commissioner John Cordova to complain about Mr. Randalls actions during the pre-

construction meeting. Mr. Parker spoke with the Commissioner over a speakerphone

in Mr. Guerras presence.

During the phone call, Mr. Parker said Mr. Randalls behavior was due to

PEIs Native American ownership, citing Mr. Randalls comment during the William

White Project about affirmative action.

2
The date of Mr. Randalls comment is unclear.
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3. Alleged retaliatory acts

On July 13, 2011the day after the phone call to the CommissionerMr.

Guerra sent Mr. Parker a letter of reprimand on behalf of Lafarge. The letter stated

Lafarge had been informed that Mr. Parker had contacted various public officials to

discuss the incident between Mr. Parker and Mr. Randall. App., Vol. V at 154. The

letter explained that, in doing so, Mr. Parker had circumvented the proper dispute

resolution process as outlined in [the] subcontract agreement with Lafarge and [had]

put Lafarge at risk of being disqualified as General Contractor on the McCulloch . . .

project. Id.3 The letter stated it was PEIs first and final notice to follow the

proper procedure for dispute resolution and that PEIs subcontract would be

terminated if Mr. Parker contacted any County official regarding any dispute on the

McCulloch Project moving forward. Id.

Mr. Guerra further required Mr. Parker to sign letters to Mr. Randall and

Robert Schmidt, another County employee, apologizing for circumventing the

proper procedure for dispute resolution for disputes between Mr. Parker and Mr.

Randall on the McCulloch Project. Id. at 155, 156.

3
The letter does not make clear what provision of the subcontract outlined the
proper dispute resolution process, but it appears to be the arbitration provision
discussed above.
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1. Alleged Discrimination, Opposition, and Retaliation November to
December 2011

a. Alleged discriminatory conduct

In addition to the June 28, 2011 incident of alleged discrimination, PEI

identifies three other allegedly discriminatory acts.

First, in October or November 2011, Mr. Schmidt confronted Mr. Parker and

called him a f***ing liar for not conducting proper inspections at the work site. Id.

at 129.

Second, in another meeting, Mr. Schmidt called Mr. Parker stupid and a

dumbass, and poked him in the chest three times. Id.

Third, Mr. Randall made unreasonable, unjustified demands on PEI, including

requiring PEI to change or move construction signs without good cause.

b. Alleged opposition to discrimination

Along with Mr. Parkers phone call to Commissioner Cordova in July 2011,

PEI alleges it opposed discrimination on two other occasions.

First, on November 3, 2011, Mr. Parker wrote a letter to Mr. Guerra

complaining about perceived discrimination committed by the County during the

McCulloch Project. Id. at 179. Mr. Parker explained how the County made

unjustified demands of PEI during the project that seem[ed] to indicate a disregard

for [PEI], if not a direct attempt to keep PEI from performing well on the project.

Id. at 180. Mr. Parker faulted the County and did not hold Lafarge responsible for

the actions taken against PEI thus far. Id. at 181.

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 Second, on December 7, 2011, Mr. Parker wrote a letter to Mr. Randall in

response to a letter from the County documenting PEIs deficiencies on the project.4

The letter provided justifications for each of PEIs purported deficiencies. It also

stated that [t]he discrimination shown by Pueblo County towards PEIincluding

the Countys complaints about the traffic control plans and its constant demands for

changes to the planswas unwarranted. App., Vol. III at 161. The letter also

referenced Mr. Schmidts belligerent statements during a November 22, 2011

meeting. Id. at 162.

2. Alleged retaliatory acts

PEI alleges a series of retaliatory acts between December 12 and December 16,

2011, that were prompted by a December 12 letter from Mr. Randall to Mr. Guerra.

In that letter, Mr. Randall wrote:

This letter is a follow-up to my letter of December 6, 2011

relative to deficiencies in the traffic control on the above
project. The reaction to that letter by your traffic control
subcontractor, specifically Mr. Greg Parker, was to: a) refuse
to make certain changes, b) state that any further
conversations with the County relative to traffic control
would only happen with his attorney present, c) accuse my
staff of discrimination against him, and d) become verbally
abusive and generally belligerent towards members of my
staff. This conduct is not acceptable for contractors
performing work on projects for Pueblo County, nor for their
subcontractors. Please take whatever steps you deem
appropriate to assure that this conduct does not continue.

App., Vol. IV at 84.

4
Mr. Parker hand delivered the letter to Mr. Guerra and directed him to give it
to Mr. Randall.
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 On December 12, 2011, the same day as Mr. Randalls letter, Mr. Guerra wrote

Mr. Parker a letter stating that MMM had taken over for Lafarge as the Countys

contractor for the McCulloch Project. It said that MMM would require a new

subcontract with PEI and that, unlike Lafarge, MMM would require a bond. It also

explained that, due to Mr. Parkers earlier statement that PEI could not post a bond,

MMM requested that PEI vacate the project. The letter was on MMM letterhead, but

Mr. Guerra signed it as a Lafarge employee. It showed that copies were sent to four

Lafarge managers.

On December 15, 2011, Mr. Guerra wrote Mr. Parker another letter reiterating

the points in his December 12 letter. Mr. Guerra signed it as an MMM employee. It

showed that copies were sent to three of the same managers who were listed in his

December 12 letter, this time identified as managers of MMM rather than Lafarge.

On December 16, 2011, Mr. Guerra sent a third letter requesting that PEI

vacate the project.

B. Procedural Background

On May 30, 2014, PEI sued Lafarge, Fidelity, MMM, Mr. Guerra, Mr.

Randall, and Mr. Schmidt in the United States District Court for the District of

Colorado. PEIs first amended complaint, the operative one here, alleged a

retaliation claim under 42 U.S.C. 1981 against Lafarge, MMM, Mr. Guerra, Mr.

Randall, and Mr. Schmidt. It further alleged a discrimination claim under 42 U.S.C.

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 1983 against Mr. Randall, a retaliation claim under 1983 against Mr. Randall and

Mr. Schmidt, and various state contract claims against Lafarge, MMM, and Fidelity.5

Three motions for summary judgment were filed by (1) MMM and Mr. Guerra,

(2) Lafarge and Fidelity, and (3) Mr. Randall and Mr. Schmidt. Each motion

requested summary judgment on PEIs 1981 retaliation claim. In their motion, Mr.

Randall and Mr. Schmidt also asked for summary judgment on the 1983 retaliation

and discrimination claims against them. PEI responded to all three motions in

consolidated briefing.

The district court entered three orders on the respective summary judgment

motions, granting summary judgment on the 1981 retaliation claim for (1) MMM

and Mr. Guerra, (2) Lafarge, and (3) Mr. Randall and Mr. Schmidt. The court also

granted summary judgment in favor of Mr. Randall and Mr. Schmidt on the 1983

claims against them based on qualified immunity. The court declined to exercise

supplemental jurisdiction over the remaining state law claims. After the court

entered final judgment against PEI on the 1981 retaliation claim, this appeal

followed.

This appeal concerns only the first two orders because Mr. Randall and Mr.

Schmidt have since been dismissed from the case.

5
PEI originally filed the state law claims in state court but requested they be
dismissed and then refiled them in the federal action.
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1. First Summary Judgment Order

When MMM and Mr. Guerra moved for summary judgment on the 1981

claim, they argued they were not proper defendants because PEIs claim concerned

retaliation for PEIs opposition to the alleged discriminatory conduct of third-party

County employees, not the conduct of MMM or Mr. Guerra. The district court

agreed, noting PEI had not cited any authority to contradict the defendants

argument. It therefore granted summary judgment in favor of MMM and Mr. Guerra.

2. Second Summary Judgment Order

Lafarge moved for summary judgment on the 1981 retaliation claim, but on

the different ground that it had not taken any adverse action against PEI. Lafarge

argued its involvement on the project had ended on December 11, 2011, when MMM

had taken over for Lafarge on the project, and PEI was not terminated until

December 17, 2011. The parties also disputed in district court whether Lafarge was

responsible for taking other adverse actions against PEI. The district court granted

summary judgment in favor of Lafarge. It ruled that MMM, not Lafarge, was

responsible for PEIs termination, and that Lafarge was not responsible for any other

adverse actions.

II. DISCUSSION

We review whether the district court properly granted summary judgment on

PEIs 1981 retaliation claim for (1) MMM and Mr. Guerra and (2) Lafarge.

We affirm the grant of summary judgment on the 1981 retaliation claim as to

MMM and Mr. Guerra because PEI forfeited its argument that its opposition to the

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Countys third-party discriminatory conduct qualifies as protected opposition for its

1981 retaliation claim, and has not argued the district court plainly erred when it

granted summary judgment on this ground.

We reverse the grant of summary judgment on the 1981 retaliation claim as

to Lafarge because the district court erred in holding PEI could not show Lafarge

took adverse actions against it.

A. Standard of Review

We review a district courts grant of summary judgment de novo, applying

the same legal standard as the district court. Twigg, 659 F.3d at 997. The court

shall grant summary judgment if 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). In applying this standard, we view the evidence and the reasonable

inferences to be drawn from the evidence in the light most favorable to the

nonmoving party. Twigg, 659 F.3d at 997.

B. Legal Standards

PEIs claim is based on a provision from the Civil Rights Act of 1866. Under 42

U.S.C. 1981(a),

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to
make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions
of every kind, and to no other.

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The statute prohibits not only racial discrimination but also retaliation against those

who oppose it. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2529 (2013)

(citing CBOCS, 553 U.S. at 445).

A corporation can be a 1981 plaintiff when it has acquired a racial identity,

either as a matter of law or by imputation . . . . Thinket Ink Info. Res., Inc. v. Sun

Microsystems, Inc., 368 F.3d 1053, 1059 (9th Cir. 2004); see also Allstate Sweeping,

LLC v. Black, 706 F.3d 1261, 1265 (10th Cir. 2013) (providing that an independent

contracting company could bring a claim under 1981).

When courts consider 1981 retaliation claims, the principles set forth in

Title VII retaliation cases apply with equal force . . . . Twigg, 659 F.3d at 998. As

with a Title VII retaliation claim, a plaintiff bringing a 1981 retaliation claim

must establish that retaliation played a part in the employment decision . . . . Id.

(quotations omitted). This can be done in two ways. Id. First, a plaintiff can show

that retaliatory animus played a motivating part in the employment decision. Id.

(quotations omitted). Second, a plaintiff can rely on the burden-shifting framework

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove

retaliation indirectly. Id.

On appeal, PEI relies only on the McDonnell Douglas framework. Under this

framework, the plaintiff must make out a prima facie case of retaliation by showing

that: (1) it engaged in opposition to racial discrimination that is protected under the

statute; (2) a reasonable person would have found the challenged action materially

adverse; and (3) a causal connection existed between the protected activity and the

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adverse action. Id. The burden then shifts to the alleged retaliator to offer a

legitimate, nonretaliatory reason for its conduct. Id. If the employer satisfies this

burden, the plaintiff must show the employers reason was merely a pretext for

retaliation. Id.

PEIs appeal of the first summary judgment order as to MMM and Mr. Guerra

concerns the first element of the prima facie case, specifically whether PEI engaged in

protected opposition. Were PEIs complaints about the alleged discrimination of

County employees Mr. Randall and Mr. Schmidt protected opposition for purposes of a

retaliation claim under 1981?

PEIs appeal of the second summary judgment order as to Lafarge relates to the

second element of the prima facie case. Is there a triable issue of fact that Lafarge

terminated PEI?

C. Analysis

We address the grant of summary judgment on the 1981 retaliation claim

first as to MMM and Mr. Guerra, and then as to Lafarge.

1. First Summary Judgment Order (MMM and Mr. Guerra)

We affirm the grant of summary judgment on the 1981 retaliation claim for

MMM and Mr. Guerra because PEI has forfeited any argument that its opposition to

third-party discriminatory conduct of County employees Mr. Randall and Mr.

Schmidt qualifies as protected opposition capable of supporting a retaliation claim

against MMM and Mr. Guerra under 1981.

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 PEIs amended complaint alleged MMM and Mr. Guerra violated 1981 by

retaliating against it for opposing discriminatory conduct of the third-party County

employees. MMM and Mr. Guerras summary judgment motion argued that PEI

could not satisfy the first prima facie element because the claim was based on PEIs

opposition to discriminatory conduct of third partiesCounty employees Mr.

Randall and Mr. Schmidt. PEI did not respond to this argument in its consolidated

briefing opposing summary judgment. The district court granted summary judgment

on the ground that MMM and Mr. Guerra could not be liable for retaliation that was

based on PEIs opposition to the County employees alleged discriminatory conduct.

On appeal, PEI attempts to argue it can satisfy the first element of its prima

facie case because its opposition to the County employees alleged discrimination

amounts to protected opposition under 1981. Because it failed to present any

such argument to the district court, it cannot obtain relief on appeal unless it shows

the district court plainly erred in granting summary judgment. PEI has not attempted

to do so, and its appeal as to MMM and Mr. Guerra therefore fails.

a. Forfeiture and plain error

When a plaintiff raises a legal theory on appeal that was not raised in district court,

we consider that theory forfeited. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28

(10th Cir. 2011). An appellants failure to argue for plain error on appeal marks the end

of the road for an argument for reversal not first presented to the district court. Id. at

1131. To show plain error, a party must establish the presence of (1) error, (2) that is

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plain, which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id. at 1128.

b. PEIs opposition to third-party conduct

On appeal, PEI points to three instances of opposition to discrimination it

asserts were protected under 1981: (1) Mr. Parkers July 12, 2011 call to County

Commissioner Cordova; (2) his November 3, 2011 letter to Mr. Guerra, and (3) his

December 7, 2011 letter to Mr. Randall.6 PEI acknowledges that all three were

responses to acts of third party County employees. See Aplt. Br. at 2 (presenting as

an issue on appeal whether the conduct of a third-party could serve as the basis for

its 1981 retaliation claim); see also Oral Arg. at 5:38-43 (conceding County

employees were third parties).

c. The parties district court arguments and the district courts order

In their summary judgment motion, MMM and Mr. Guerra argued that PEIs

alleged opposition to the third-party County employees discrimination was not

protected under 1981 and thus could not satisfy the first element of a prima facie

retaliation claim. See App., Vol. I at 194-95. They argued, citing cases, that

[f]ederal courts have consistently rejected retaliation claims based on a complaint of

a third partys alleged discrimination where the plaintiff makes no affirmative

showing of the defendants own discriminatory intent or that the defendant had any

6
MMM and Mr. Guerra do not contest that these actions put them on notice of
PEIs opposition to alleged discrimination. See Petersen v. Utah Dept of Corr., 302
F.3d 1182, 1187 (10th Cir. 2002) (providing that a retaliation claim requires the
defendant to be on notice the plaintiff was engaging in protected opposition).
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duty or authority to prevent the discriminatory conduct of the third party. Id. at 194.

We refer to this as MMM and Mr. Guerras third-party argument.

PEI failed to respond to this argument in district court. Although PEI asserted

that it engaged in protected activity, it provided no legal argument or authority to

show why Mr. Parkers conduct qualified as protected opposition under 1981. See

App., Vol. 1 at 265, 279; Vol. II at 6, 17, 21, 25. Indeed, in its 67 pages of

responsive briefing in district court, PEI never argued it could satisfy the first

element of its prima facie case by opposing third-party discrimination, despite

acknowledging that [t]he Defendants (referring to all the Defendants collectively,

and not just MMM and Mr. Guerra), had argued PEI could not show it engaged in

protected activity. App., Vol. II at 9.

In its first summary judgment order, the district court noted PEI had failed to

cite any authority to contradict MMM and Mr. Guerras third-party argument that it

had not engaged in protected opposition. See App., Vol. II at 110. Analogizing to

Title VII, which focus[es] . . . on whether the employee opposed an unlawful

employment practice by the employer[,] the court concluded that PEI must oppose

discriminatory conduct of MMM and Mr. Guerranot of third-party County

employees over whom the defendants had no authority or controlto succeed in its

1981 retaliation claim. Id. at 110-11.

d. PEIs argument on appeal

For the first time on appeal, PEI attempts to argue why its opposition to the

County employees alleged discrimination was protected for purposes of its 1981

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claim. Attempting to draw from the Title VII context, it argues that the County

employees third-party discriminatory conduct can be imputed to MMM and Mr.

Guerra, which we call PEIs imputation argument. Aplt. Br. at 29-31 (MMM);

Aplt. Br. at 57 (incorporating its arguments against MMM as to Mr. Guerra). PEIs

contention is that MMM and Mr. Guerra carried out the discriminatory preference of

the [County]the third party that committed the alleged discriminatory actsand

therefore is liable for retaliation. Id. at 30. This argument is PEIs sole argument

on appeal to respond to MMM and Mr. Guerras third-party argument.7

e. Forfeiture and plain error

MMM and Mr. Guerra argue that PEI forfeited its imputation argument by

failing to raise it first in district court. We agree. Further, PEI has failed to argue the

district courts decision to accept MMM and Mr. Guerras third-party argument was

plain error. Without a showing of plain error, we will not reverse the grant of

summary judgment. See Richison, 634 F.3d at 1131.8

7
For example, PEI did not argue the statutory language of 1981 supported its
third-party theory and did not challenge that the County employees were actually
third parties.
8
When asked at oral argument to cite the best Tenth Circuit case supporting
PEIs imputation argument, PEIs counsel responded, There is no Tenth Circuit
case. It is a case of first impression in this circuit. Oral Arg. at 8:25-31. Thus, by
PEIs own admission, it would have faced long odds arguing that an error here was
plain. See United States v. Turrietta, 696 F.3d 972, 981 (10th Cir. 2012) ([W]here
the law is unsettled, a matter of first impression will generally preclude a finding of
plain error.).
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 f. PEIs arguments against forfeiture

Rather than argue for plain error, PEI contends it did not forfeit its imputation

argument because, to preserve the issue, it needed only to allege its retaliation claim in

district court and then could present any supportive legal theory for the first time on

appeal. PEI relies on the Supreme Courts statement that [o]nce a federal claim is

properly presented, a party can make any argument in support of that claim; parties are

not limited to the precise arguments they made below. Aplt. Reply Br. at 12 (quoting

Yee v. City of Escondido, 503 U.S. 519, 534 (1992)).

PEIs reliance on Yee is misplaced. The quote from Yee was made in the context

of deciding whether the Court would consider an argument outside the scope of the grant

of certiorari. See Yee, 503 U.S. at 534-38. The statement had nothing to do with an

appellants raising arguments on appeal to a circuit court that were not first raised in

district court. See Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP, 759 F.3d 522,

529 (6th Cir. 2014) (distinguishing Yee as based on prudential limitations applicable to

the Supreme Courts certiorari jurisdiction and not alter[ing] [the courts] well-settled

rule that this court declines to entertain arguments not presented in the first instance to

the district court). PEIs extension of Yee would conflict with our long-standing

practice of reviewing newly raised legal arguments only under the plain-error standard.

Richison, 634 F.3d at 1128.

PEIs specific argument that it did not forfeit its imputation argument finds no

legal support. It cannot rely on the mere fact that it alleged a 1981 claim to justify

making new arguments on appeal. The complaints allegations cannot substitute for

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responding to MMM and Mr. Guerras argument in their summary judgment motion.

Although a movant bears the burden to show summary judgment is appropriate, [t]he

nonmovant also must demonstrate a plausible ground for his claim or defense, including

a viable legal theory that would entitle the nonmovant to relief. 10A Charles Alan

Wright & Arthur R. Miller, Federal Practice & Procedure 2727.2 (4th ed. 2017); see

also Windon Third Oil & Gas Pship v. FDIC, 805 F.2d 342, 346 (10th Cir. 1986)

(providing that a genuine issue of fact to survive summary judgment must be predicated

on a viable legal theory (quotations omitted)), overruled on other grounds by Anixter v.

Home-Stake Prod. Co., 77 F.3d 1215 (10th Cir. 1996); Dorris v. Absher, 179 F.3d 420,

426 (6th Cir. 1999) (providing summary judgment is appropriate when the plaintiffs had

not presented a viable legal theory under which liability [could] attach to [the

defendant]). MMM and Mr. Guerra put PEI on notice that it needed to present such a

legal theory to survive summary judgment, and PEI did not do so.

g. Richison supports forfeiture

PEIs forfeited argument here is analogous to the one in Richison. In Richison,

the defendants had moved for summary judgment, arguing that the plaintiffs claims

were time-barred based on the undisputed facts. 634 F.3d at 1126. On notice and in

the face of [the defendants] challenge, the plaintiff argued only that the facts were

in dispute, and [a]t no point introduced his legal theory that his claims were not

time-barred. Id. at 1127. The district court agreed with the defendants and granted

summary judgment. Id. On appeal, the plaintiff argued for the first time that the

claims were not time-barred. Id. We declined to reverse on this basis because the

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plaintiff forfeited his time-bar argument by failing to raise it in district court and

failing to show plain error on appeal. Id. at 1128, 1130-31.

Like the defendants challenge to the timeliness of the claims in Richison,

MMM and Mr. Guerra put PEI on notice of their challenge that PEI could not rely on

opposition to third-party discrimination to support its 1981 retaliation claim against

them. And, like the plaintiff in Richison, PEI failed to respond to this challenge in

district court with the legal argument it now presents on appeal. Thus, as in

Richison, we do not address PEIs imputation argument raised for the first time on

appeal in the absence of an argument that the district court plainly erred.

* * * *

In sum, because PEI had an opportunity to present its imputation argument as a

response to MMM and Mr. Guerras third-party argument in district court but failed

to do so, it forfeited the only argument it has presented on appeal that it engaged in

protected opposition under 1981. And because it did not argue the district court

plainly erred in granting summary judgment, we affirm as to MMM and Mr. Guerra.

2. Second Summary Judgment Order (Lafarge)

Lafarge asks us to affirm the district courts ruling that PEI did not show

Lafarge took adverse action against PEI. Alternatively, Lafarge asks us to affirm on

the grounds that: (1) PEI admitted at a deposition that Lafarge did not retaliate

against PEI; (2) PEI cannot show a causal relationship between PEIs alleged

protected opposition and any alleged adverse action; and (3) PEI has failed to present

evidence showing Lafarges reasons for any adverse actions were pretextual. Lafarge

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does not argue we should affirm based on MMM and Mr. Guerras third-party

argument.9

We reverse the grant of summary judgment to Lafarge on PEIs 1981

retaliation claim because the district court erred in holding PEI could not show

Lafarge had not taken adverse action against it.

a. Legal principles on adverse action for retaliation claims

To show an adverse action for a retaliation claim under 1981, a plaintiff must

show that a reasonable employee would have found the challenged action materially

adverse, which . . . means it well might have dissuaded a reasonable worker from making

or supporting a charge of discrimination. Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 68 (2006) (quotations omitted) (Title VII retaliation); Twigg, 659 F.3d at

998 (providing the principles set forth in Title VII retaliation cases apply with equal

force to 1981 retaliation claims). The action must be materially adverse to separate

significant from trivial harms[,] such as petty slights, minor annoyances, and simple

lack of good manners . . . . Id.

b. Analysis

PEI argues Lafarge was responsible for its termination in December 2011.10

We must resolve whether there is a triable issue of fact that Lafarge is responsible for

PEIs termination.

9
For this reason, and because Lafarge did not present a third-party argument in
its motion for summary judgment and the district court did not grant summary
judgment as to Lafarge on that ground, we do not affirm as to Lafarge based on PEIs
forfeiture of its response to MMM and Mr. Guerras third-party argument.
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 The court erred in ruling there was no genuine issue of fact as to whether

Lafarge played a role in terminating PEI.11 The letter asking PEI to vacate the

project sent on December 12, 2011, identifies Mr. Guerra as a Lafarge employee and

copies three Lafarge managers. App., Vol. V at 251. Lafarge points out that the

letter was written on MMM letterhead and references MMMsrather than

Lafargesbonding requirement. But Mr. Guerra signed the letter as a Lafarge

employee and copied it to Lafarge managers, which creates a genuine issue of fact as

to whether Lafarge played a role in terminating PEI and thus took adverse action

against it. The court erred in holding otherwise.12

10
In district court, PEI pointed to other alleged adverse actions, but the court
ruled they did not qualify as adverse actions. PEI does not challenge these rulings, so
we do not address them.
11
The court stated that PEI did not specifically list[] PEIs termination by
Lafarge in its response. That is incorrect, as PEIs response argued Lafarge was
responsible for its termination.
12
PEI also argues that Lafarge took adverse action against it in July 2011 by
sending PEI a reprimand letter stating it would be terminated if PEI circumvented the
proper dispute resolution process again and by requiring PEI to send letters of
apology to Mr. Randall and Mr. Schmidt. The court ruled that the letters of
apology did not qualify as adverse action, App., Vol. 2 at 124, but did not address
whether Lafarges letter of reprimand qualified, despite PEIs identifying the letter
as evidence of retaliation in its opposition to summary judgment. It is not clear
whether the court intended its ruling on the letters of apology to encompass the letter
of reprimand, an issue that we leave for consideration on remand. See Burlington N.,
548 U.S. at 64 (holding that adverse actions for retaliation claims are those that
would dissuad[e] a reasonable worker from making or supporting a charge of
discrimination); Couch v. Bd. of Trs. of Meml Hosp., 587 F.3d 1223, 1237 (10th
Cir. 2009) (discussing how Burlington Northern broadened the scope of adverse
actions for retaliation claims).
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 We therefore reverse because the court erred in holding PEI could not show

Lafarge took adverse action against it to state a prima facie case of retaliation under

1981.13

III. CONCLUSION

We affirm the grant of summary judgment on PEIs 1981 claim against MMM

and Mr. Guerra because PEI forfeited its argument that its opposition to discrimination by

opposing third-party conduct is protected opposition under 1981. We reverse the

grant of summary judgment on PEIs 1981 claim against Lafarge because PEI has

shown a genuine issue of material fact as to whether Lafarge took adverse action against

it.

13
We decline to reach any potential alternative grounds to affirm not ruled on
by the district court. See Smith v. Rockett, 522 F.3d 1080, 1082 (10th Cir. 2008)
(Because the district court did not address any of the alternative grounds for
dismissal asserted by Defendants, we decline to address those issues for the first time
on appeal, leaving them for the district court to consider on remand.); Greystone
Const., Inc. v. Natl Fire & Marine Ins. Co., 661 F.3d 1272, 1290 (10th Cir. 2011), as
amended on rehg in part (Dec. 23, 2011) (declining to address an issue not ruled on
below, noting The better practice on issues raised below but not ruled on by the district
court is to leave the matter to the district court in the first instance (brackets omitted)).
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