Weiss v. Spencer et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 24-cv-00959-PAB-MDB
BENJAMIN WEISS,
Plaintiff,
v.
WALTER SCOTT SPENCER, et al.,
Defendants.
ORDER
This matter comes before the Court on Defendants’ Motion for Summary
Judgment [Docket No. 30]. Plaintiff Benjamin Weiss filed a response. Docket No. 31.
Defendants filed a reply. Docket No. 32. The Court has jurisdiction pursuant to 28
U.S.C. § 1331.
I. 	UNDISPUTED FACTS 1
Defendant Affordable Services Corp. (“Affordable”) provides plumbing, HVAC,
electrical, and sewer services for residential and commercial properties throughout
Colorado. Docket No. 30 at 2, ¶ 1. Defendant Colorado Water & Mold Restoration
Corporation (“Colorado Water”) provides water, mold, and fire remediation, removal,
and abatement services for residential properties in Colorado Springs and the
surrounding area. Id., ¶ 2. Affordable does not engage in new construction, plumbing,
1 The following facts are undisputed unless otherwise indicated.
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electrical, HVAC, or sewer work under contract with general contractors. Id., ¶ 3.
Colorado Water does not provide water, mold, and fire remediation, restoration,
removal, and abatement services for general contractors. Id. Affordable plumbing,
HVAC, electrical, and sewer services are recognized as retail in their respective
industries and comprise more than 75 percent of Affordable’s gross sales per year. Id.,
¶ 4. Colorado Water’s water, mold, and fire remediation, restoration, removal, and
abatement services are recognized as retail in their respective industries and make up
more than 75 percent of Colorado Water’s gross sales per year. Id. at 2-3, ¶ 5.
Affordable and Colorado Water sell their services to the general public, id. at 3, ¶ 6;
neither entity takes part in the manufacturing process, id.; and both companies furnish
their services to residential homeowners. Id. Defendant Walter Scott Spencer 2 owns
Spartan Management Group, which manages Affordable and Colorado Water. Id. at 9-
10, ¶ 36. Defendant Spencer does not have input or final decision-making authority into
hiring or firing employees, does not supervise any employees nor monitor their
performance, does not control employee work schedules, was not responsible for
company pay practices and did not determine plaintiff’s rate of pay, and does not
maintain employee records. Id.
Plaintiff’s employment with Affordable began on April 22, 2019. Id. at 3, ¶ 7.
Plaintiff was an excavator for Affordable and was paid hourly. Id. In December 2019,
plaintiff became an Excavation Manager, which is a salaried position. Id. Beginning in
or around January 2021, plaintiff worked as a Project Manager and was paid strictly
2 The Court refers to KC Spencer as “Mr. Spencer” and Walter Scott Spencer as
“defendant Spencer.”
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commissions. Id.3 On or about September 24, 2022, plaintiff became the Water and
Mold Mitigation Manager for Colorado Water and was paid commissions. Id. In these
positions, plaintiff was on call for multiple days a month, which included several
weekends and many hours of overtime, for which he was not compensated. Docket No.
31 at 10, ¶ 5. Defendants were unable to locate and deliver records of plaintiff’s on call
time for the months of May to July 2021, October 2021, and January 2022. Id. at 11,
¶ 8.
As a Project Manager at Affordable, plaintiff’s pay was comprised solely of
commissions, at five to six percent of gross sales of paid projects, and his pay
fluctuated week to week. Docket No. 30 at 3, ¶ 9. If plaintiff’s commissions while
working with Affordable fell below the minimum wage, he was paid a weekly draw
against commissions of at least $1,000. Id. at 4, ¶ 10. From January 2021 to
3 Plaintiff admits defendants’ assertion of undisputed fact that plaintiff was a
salaried Excavation Manager beginning December 2019 until January 2021, at which
point plaintiff worked as a Project Manager and was paid “strictly commissions.” See
Docket No. 30 at 3, ¶ 7; Docket No. 31 at 9, ¶¶ 1-7. Plaintiff also admits that he
transitioned to working at Colorado Water as a Water and Mold Mitigation Manager in
September 24, 2022 and was paid “solely commissions.” See Docket No. 30 at 3, 4,
¶¶ 7,13; Docket No. 31 at 9, ¶¶ 1-7, 10-20. Plaintiff, however, asserts as a disputed fact
that, “[d]uring June 2020 through January 2022, Plaintiff was a salaried employee for
Affordable titled as an ‘Excavation Manager.’” Docket No. 31 at 10, ¶ 1 (citing Docket
No. 31-1 at 3, ¶ 21). The Court finds that plaintiff’s affidavit fails to create a dispute of
fact given plaintiff’s admissions to defendants’ assertions of undisputed fact.
Defendants support their assertions of undisputed fact by citing plaintiff’s deposition,
wherein plaintiff confirmed that, “[i]n December of ’19, I became a salaried employee as
an excavation manager.” See Docket No. 30-7 at 8, 100:3-8. During his deposition,
plaintiff also confirmed that, “[s]tarting in January 1st, 2021, I became a project manager
and was strictly on commission.” See id. at 8, 100:9-12. Plaintiff confirmed that, after
becoming the Water and Mold Mitigation Manager for Colorado Water on September
24, 2022, he was paid only commissions. See id. at 9, 101:13-24. The Court finds that
plaintiff does not identify a genuine issue of disputed facts on these issues.
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September 2022, when plaintiff was employed as a Project Manager, he worked
between 38 to 45 hours every workweek. Id., ¶ 11.
As a Water and Mitigation Mold Manger for Colorado Water, plaintiff’s duties
were to create and present estimates, pull permits, generate invoices, meet with the on-
site residents, communicate with the location management team, schedule and
coordinate workflow, and perform some excavation and repair work. Id., ¶ 12. In this
role, Colorado Water paid plaintiff solely commissions at a rate of seven percent per job
sold or, if plaintiff performed excavating work on the job sold, the rate was 15 percent of
the job. Id., ¶ 13. 4 Plaintiff worked between 38 to 45 hours per workweek when he
worked at Colorado Water in 2022 and 2023. Id. at 5, ¶ 14.
Affordable paid plaintiff the applicable federal and Colorado minimum wage for
every workweek he worked in 2021. Id., ¶ 15. Affordable and Colorado Water paid
plaintiff the applicable minimum wage for every workweek he worked from January 1,
2022 through December 31, 2023. Id., ¶ 16. When plaintiff worked as a Project
Manager for Affordable in 2021 and 2022, his regular rate of pay exceeded one and
4 Plaintiff admits that he was solely paid commissions while working at Colorado
Water. See Docket No 30 at 4, ¶ 13; Docket No. 31 at 9, ¶¶ 10-20. However, in his
statement of disputed facts, plaintiff asserts that, in June of 2022, he was “verbally
offered a job with Colorado Water as an ‘Excavation/Mitigation Manager’ with salary as
the basis of pay.” Docket No. 31 at 10, ¶ 2. Plaintiff also asserts that, “[a]fter two weeks
of working for Defendants at Colorado Water, Plaintiff was transitioned to a strictly
commission-based employee without his consent, while at no point did his primary
duties change to reflect that pay basis.” Id., ¶ 3. Plaintiff cites his affidavit in support of
these assertions. See id. at 10, ¶¶ 2-3 (citing Docket No. 31-1 at 3, ¶¶ 22-23). To the
extent that plaintiff is asserting that he was paid a salary while at Colorado Water, that
assertion is directly contradicted by his deposition testimony, which defendants cite in
their statement of fact that plaintiff does not dispute. See Docket No. 30 at 4, ¶ 13
(citing Docket No. 30-7 at 9, 101:13-24; 10, 102:7-10). The Court finds plaintiff’s
affidavit does not create a dispute of fact regarding plaintiff’s employment status with
Colorado Water for the same reasons discussed on page seven.
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one-half times the federal and Colorado minimum wage for each workweek. Id., ¶¶ 17-
18. When plaintiff worked as a Water and Mitigation Mold Manager for Colorado Water
from September 2022 through December 8, 2023, his regular rate of pay exceeded one
and one-half times the federal and Colorado minimum wage for each workweek. Id.,
¶ 19.
For the weeks ending October 13, 2023, October 20, 2023, October 27, 2023,
November 17, 2023, November 24, 2023, and December 8, 2023, plaintiff did not work
more than forty hours for each of those workweeks and thus is not entitled to any
overtime wages under the FSLA or CWA. Id. at 6, ¶ 20. For the weeks ending
November 3, 2023, November 10, 2023, and December 1, 2023, plaintiff worked more
than 40 hours and was paid one and one-half times the federal and Colorado minimum
wage. Id., ¶ 21.
Affordable’s Employee Handbook (the “Handbook”) contains provisions in the
section entitled “Employee Conduct” that state Affordable may initiate disciplinary action
against an employee for, among other things, unsatisfactory performance or violation of
personnel policies. Id., ¶ 23. The Handbook also contains a “No Gossip Policy,” which
provides that employees who have workplace issues with co-workers or supervisors
should seek to resolve those issues directly with the co-worker or supervisor. Id. at 7,
¶ 24. The No Gossip Policy provides that, only if the situation cannot be resolved
directly with the co-worker or supervisor, should the situation be escalated to the
General Manger or Regional Team Leader. Id. The No Gossip Policy does not state
that employees are prohibited from discussing their pay or concerns about their pay with
other employees. Id., ¶ 25.
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Sometime in or around October 2023, plaintiff spoke with Shane Dorais, General
Manager of Colorado Water, and told him that he felt he should have been paid for his
time attending sales meetings. Id., ¶ 26. In or around mid-November 2023, Mr. Dorais
notified Human Resources Director Troy Willey of plaintiff’s concerns about not being
paid for sales meeting time. Id., ¶ 27. On or about November 17, 2023, plaintiff met
with Mr. Willey to inquire about being paid for attending sales meetings. Id., ¶ 28. Mr.
Willey explained that it was the company’s practice to not pay commissioned employees
for sales meetings, but stated that he would look into the issue further. Id. Later that
day, Mr. Willey confirmed that the company did not have to pay its commissioned
employees for sales meeting time and told plaintiff the same by telephone call that
evening. Id., ¶ 29.
Between November 17, 2023 and November 27, 2023, Mr. Willey learned that
plaintiff met with and spoke with various employees regarding his belief that he should
be paid for attending sales meetings, id. at 8, ¶ 30, namely, that plaintiff met with KC
Spencer, defendants’ Vice President, spoke again with Mr. Dorais, spoke with Jaimie
DeJoy, defendants’ payroll clerk, spoke several times with accounts payable manager
Shalena Rudnik, and spoke with several members of the Colorado Water team,
including Kevin Henderson and Thomas Kirkwood. Id. On November 27, 2023, Mr.
Willey spoke with plaintiff and told plaintiff for the fourth time that defendants were not
going to pay plaintiff to attend sales meetings. Id., ¶ 32. That afternoon, Mr. Willey sent
plaintiff an email where he reiterated the company’s position and noted that, since their
November 17, 2023 meeting, plaintiff had spoken with Ms. DeJoy and Ms. Rudnick and
told them that Mr. Willey was wrong in his assessment of meeting-time pay. Id.
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Based on Mr. Willey’s discussions with plaintiff, Mr. Dorais, Mr. Spencer, and
several other individuals, Mr. Willey determined that he would meet with plaintiff. Id. at
8-9, ¶ 33. On December 8, 2023, Mr. Willey, Mr. Dorais, Mr. Toft, and Mr. Spencer met
with plaintiff to discuss plaintiff’s employment. Id. at 9, ¶ 34. During this meeting, Mr.
Willey provided plaintiff a “Coaching Session and Disciplinary Action Form,” which
stated that plaintiff failed to follow the supervisory chain of command and violated the
No Gossip Policy. Id. Plaintiff was terminated on December 8, 2023. Id. at 5, ¶ 19. 5
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 & Cnty. 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). we
5 Although the parties do not assert as an undisputed fact that plaintiff was
terminated by defendants on December 8, 2023, the Court finds that this fact is
undisputed. See Docket No. 30 at 15 (“Plaintiff’s retaliation claims allege that
Defendants retaliated against him when they terminated his employment on December
8, 2023.”); Docket No. 31 at 1 (“Defendants abruptly terminated Plaintiff’s employment
on December 8, 2023, as retaliation for engaging in the protected activities of
complaining about his wages just weeks prior.”). The parties also stipulate to the fact
that plaintiff was terminated on December 8, 2023 in the Final Pretrial Order. Docket
No. 37 at 5.
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cannot ignore clear, contrary video evidence in the record depicting the events as they
occurred
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) (quotations
omitted). “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 & Cnty. 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) (quotations 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
Plaintiff brings claims for violation of the Fair Labor Standards Act (“FLSA”)
(Claim One); violation of the Colorado Wage Act (“CWA”) (Claim Two); theft of services
(Claim Three); retaliation under the FLSA (Claim Four); retaliation under the CWA and
Colorado Overtime and Minimum Pay Standards Orders (“COMPS”) (Claim Five); and
violation and retaliation under the Colorado Pay Transparency Act pursuant to the Equal
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Pay for Equal Work Act, Colo. Rev. Stat. § 8-5-101 et seq. (Claim Six). See Docket No.
22 at 18-25.
1. 	Sham Affidavit
In support of plaintiff’s assertion of a disputed fact that plaintiff was a salaried
Excavation Manager for Affordable between June 2020 and January 2022, plaintiff cites
his affidavit. See Docket No. 31 at 10, ¶ 1 (citing Docket No. 31-1). Defendants, citing
plaintiff’s admissions in his deposition testimony, argue that plaintiff cannot create a
disputed fact through a contradictory affidavit. See Docket No. 32 at 5-6. “[C]ourts will
disregard a contrary affidavit when they conclude that it constitutes an attempt to create
a sham fact issue.” Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973 (10th
Cir. 2001) (citation omitted). “To determine whether a contradicting affidavit seeks to
create a sham fact issue, we have looked to three factors: whether: ‘(1) the affiant was
cross-examined during his earlier testimony; (2) the affiant had access to the pertinent
evidence at the time of his earlier testimony or whether the affidavit was based on newly
discovered evidence; and (3) the earlier testimony reflects confusion which the affidavit
attempts to explain.’” See id. (citation omitted). The Court finds that plaintiff’s affidavit
directly contradicts his deposition testimony. Plaintiff’s affidavit states that he was a
“salaried employee” as an Excavation Manager for Affordable from June 2020 through
January 2022. Docket No. 31-1 at 3, ¶ 21. By contrast, during his deposition, plaintiff
testified that he was a salaried Excavation Manager from December 2019 to January
2021, and then he was a Project Manager from January 2021 to September 2022, at
which point he was only paid commissions. See Docket No. 30-7 at 8-9, 100:3-101:24.
The Ralston factors weigh in favor of finding that plaintiff is attempting to create a sham
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fact issue. First, plaintiff was cross-examined and was given the opportunity to clarify
his testimony. Second, plaintiff’s affidavit is based only on his own reflection, and not
on newly discovered evidence. Finally, plaintiff’s prior testimony is not ambiguous, and
the affidavit seeks to contradict, not clarify, plaintiff’s testimony. Therefore, the Court
finds that plaintiff’s affidavit is not a basis to find that there is a dispute of fact regarding
plaintiff’s employment status from December 2019 until January 2021. See Ralston,
275 F.3d at 973.
2. 	Claim Ones, Two, and Three – FLSA and CWA Violations and
Theft of Services
The FLSA requires that employers pay employees a minimum wage and
overtime compensation. See 29 U.S.C. §§ 206(a)(1), 207(a)(1). However, the FLSA
exempts certain employees from the minimum-wage and overtime provisions. See
E.M.D. Sales, Inc. v. Carrera, 604 U.S. 45, 48 (2025). “Exemptions to the FLSA are to
be narrowly construed; the employer must show the employees fit plainly and
unmistakenly within the exemption’s terms.” Lederman v. Frontier Fire Prot., Inc., 685
F.3d 1151, 1157 (10th Cir. 2012) (internal quotation, citation, and alteration omitted).
The employer “bears the burden of proving the exemption by a preponderance of
evidence.” See Carpenter v. DIRECTV, LLC, No. 14-cv-02854-MJW, 2017 WL
4225797, at *6 (D. Colo. May 16, 2017) (citing Lederman, 685 F.3d at 1157-58). Here,
the relevant exception, the “commission sales exception,” provides that:
No employer shall be deemed to have violated subsection (a) by employing any
employee of a retail or service establishment for a workweek in excess of the
applicable workweek specified therein, if (1) the regular rate of pay of such
employee is in excess of one and one-half times the minimum hourly rate
applicable to him under section 206 of this title, and (2) more than half his
compensation for a representative period (not less than one month) represents
commissions on goods or services. In determining the proportion of
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compensation representing commissions, all earnings resulting from the
application of a bona fide commission rate shall be deemed commissions on
goods or services without regard to whether the computed commissions exceed
the draw or guarantee.
29 U.S.C. § 207(i). In order for the commission sales exception to apply, defendants
must show that plaintiff “received a regular pay rate exceeding one and one-half times
the minimum wage, Defendant is a retail or service establishment, and Plaintiff[ ]
received more than half of their compensation from commissions during the
representative period.” See Carpenter, 2017 WL 4225797, at *6. To be considered a
retail or service establishment, the employer “(a) Must engage in the making of sales of
goods or services; and (b) 75 percent of its sales of goods or services, or of both, must
be recognized as retail in the particular industry; and (c) not over 25 percent of its sales
of goods or services, or of both, may be sales for resale.” 29 C.F.R. § 779.313.
Similarly, the CWA has a commission sales exception, which provides that the
following employees are exempt:
Sales employees of retail or service industries paid on a commission basis,
provided that at least 50% of their total earnings in the pay period is derived from
commission sales, and their regular rate of pay is at least one and one-half times
the minimum wage, are exempt from Rule 4 (Overtime). This exemption is
applicable for only employees of retail or service employers who receive over
75% of their annual dollar volume from retail or service sales.
7 Colo. Code Regs § 1103-1:2.4.2 (2024) . In order for this exception to apply,
defendants “must show that (1) at least 50% of [plaintiff’s] earnings in a pay period were
derived from commission sales (“50% Requirement”); (2) [plaintiff’s] regular rate of pay
was at least one and one-half times the minimum wage (“Minimum Wage
Requirement”); and (3) Defendant receives more than 75% of its annual dollar volume
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from retail sales.” See McAlister v. LGI Homes Corp., LLC, No. 23-cv-03088-NYW-
TPO, 2025 WL 843749, at *12 (D. Colo. Mar. 18, 2025).
Defendants contend that all three elements are met, the commission sale
exception therefore applies, and thus plaintiff was exempt from the overtime provisions
of the FLSA and CWA. See Docket No. 30 at 11-15. While plaintiff concedes that
defendants are retail or service establishments and that he received a regular pay rate
exceeding one and one-half times the minimum wage, he argues that, for the period of
June 2020 through December 2021, he did not receive more than half his compensation
from commissions. See Docket No. 31 at 13. During the first two weeks of this period,
plaintiff contends that he was an “Excavation Manager” that defendants paid with a
salary. Id.
Regarding plaintiff’s employment as a salaried Excavation Manager from
December 2019 to January 2021, see Docket No. 30 at 3, ¶ 7, the Court will not
consider plaintiffs’ claims arising out of this period because the complaint only seeks
unpaid wages for the years 2021, 2022, and 2023. See Docket No. 22 at 18, 20, 21,
¶¶ 90, 111, 114. Turning to plaintiff’s employment from January 2021 to December 8,
2023, it is undisputed that plaintiff was paid exclusively commissions during this period.
Plaintiff worked as a Project Manager for Affordable and was paid strictly commissions
beginning in January 2021. Docket No. 30 at 3, ¶ 7. When plaintiff transitioned to
become the Water and Mold Mitigation Manager for Colorado Water on September 24,
2022, he was paid only commissions. Id. at 3, 4, ¶¶ 7, 13. Because plaintiff was paid
only on commission from January 2021 to December 8, 2023, it is undisputed that
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more than half of plaintiff’s compensation was derived from commissions for the
relevant period. Thus, the 50% requirement of the commission sales exception is met.
Plaintiff does not contest the remaining two elements of the commission sales
exception. See Docket No. 31 at 13, 15. Specifically, plaintiff does not contest that
defendants are retail and service employers and that plaintiff received more than one
and one-half times the minimum wage for his regular rate of pay. See id. The
undisputed facts support that these elements are met. Affordable and Colorado Water
are “recognized as retail in their respective industries” and more than 75 percent of
their gross sales are derived from retail and sale services. See Docket No. 30 at 2-3,
¶¶ 4-5. Affordable and Colorado Water “sell their services to the general public, neither
entity takes part in the manufacturing process, and both companies furnish their
services to the end users, residential homeowners.” Id. at 3, ¶ 6. During his
employment as Project Manager for Affordable and as Water and Mitigation Mold
Manager for Colorado Water, plaintiff’s regular rate of pay exceeded one and one-half
times the federal and Colorado minimum wage for each workweek. Id. at 5, ¶¶ 17-19.
Accordingly, the Court finds, for the period of January 2021 to December 8,
2023, plaintiff was an exempt employee under the FLSA and the CWA. Thus, the
Court will grant defendants’ motion for summary judgment on Claims One and Two.
Because plaintiff’s theft of services claim is predicated on the same unpaid wages that
are the basis for plaintiff’s FLSA and CWA claims, the Court will also grant defendants’
motion for summary judgment on Claim Three. See Docket No. 22 at 21, ¶¶ 114-117
(“By failing to pay Plaintiff all of his wages or compensation, Defendants have
committed theft of services.”).
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3. 	Claims Four and Five – FLSA and CWA Retaliation Claims
The FLSA makes it unlawful “to discharge or in any other manner discriminate
against any employee because such employee has filed any complaint or instituted or
caused to be instituted any proceeding under or related to this chapter.” 29 U.S.C.
§ 215(a)(3). The CWA provides that “[a]n employer . . . shall not intimidate, threaten,
restrain, coerce, blacklist, discharge, or in any manner discriminate or retaliate against
an employee or worker who has . . . [f]iled a complaint or instituted or caused to be
instituted a proceeding under this article 4 or any other law or rule related to wages,
hours, or . . . [r]aised concerns in good faith about compliance with or otherwise
provided information as to legal rights and remedies available under this article 4 or any
other law or rule related to wages or hours to any person.” Colo. Rev. Stat. § 8-4-
120(1)(a), (c). The COMPS Order “makes clear that retaliation claims should be
brought under the CWA or other statutes rather than the COMPS Order itself.” Schlagel
v. Disc. Tire Co. of Colo., Inc., No. 23-cv-02909-NYW-CYC, 2025 WL 316549, at *14
(D. Colo. Jan. 28, 2025).
Retaliation claims under the FLSA and CWA are considered under the burden-
shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Jones v. Peopleready Inc., No. 21-cv-01688-PAB-MEH, 2022 WL
2176286, at *6 (D. Colo. June 16, 2022); Schlagel, 2025 WL 316549, at *12 (“Like
FMLA retaliation claims, the McDonnell Douglas framework governs CWA retaliation
claims.”). Under the McDonnel Douglas framework, “the plaintiff bears the initial burden
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of establishing a prima facie case of retaliation.” Metzler v. Federal Home Loan Bank of
Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006). If the plaintiff successfully establishes a
prima facie case, the defendants must offer a legitimate, non-retaliatory reason for the
employment action. Id. Defendants’ burden at this stage is “one of production, not
persuasion; it can involve no credibility assessment” and is “exceedingly light.” Carter v.
Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1149 (10th Cir. 2011) (citations omitted).
Defendants’ burden is to “establish facts from which the court may infer a proper reason
behind defendant[s’] decision to discharge plaintiff.” Richardson v. Topeka Metro.
Transit Auth., 987 F. Supp. 887, 891 (D. Kan. 1997). “The plaintiff then bears the
ultimate burden of demonstrating that the defendant’s proffered reason is pretextual.”
Metzler, 464 F.3d at 1170.
To state a prima facie case of retaliation, a plaintiff must show that: (1) she
engaged in a protected activity; (2) the employer took an action that a reasonable
employee would have found materially adverse; and (3) there exists a causal
connection between the protected activity and the adverse action. Id. at 1171.
Defendants concede that plaintiff engaged in protected activity when he complained of
defendants’ pay practices and that he suffered an adverse employment action when he
was terminated on December 8, 2023. See Docket No. 30 at 16. Defendants argue,
however, that plaintiff cannot demonstrate a causal connection between his termination
and protected activities. Id. Defendants contend that plaintiff’s termination was “not
connected to his complaint about his pay or meeting time pay but instead related to his
poisoning the work environment at Colorado Water & Mold.” Id. at 17.
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It is undisputed that plaintiff brought up his complaints regarding meeting-time
pay in October 2023 with Mr. Dorais. Id. at 7, ¶ 26. Plaintiff then discussed those
complaints with Mr. Willey on November 17, 2023. Id., ¶¶ 27-29. Between November
17, 2023 and November 27, 2023, plaintiff discussed the issue of meeting-time pay with
other individuals employed by defendants, including his peers and members of
management. See id. at 8, ¶ 30. Plaintiff was terminated on December 8, 2023. See
id. at 9, ¶ 34. Eleven days passed between the most-recent protected activity and
plaintiff’s termination. Given the Tenth Circuit’s holding that “a one and one-half month
period between protected activity and adverse action may, by itself, establish
causation,” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999), the
Court finds that plaintiff has met his burden. Moreover, it is undisputed that plaintiff’s
discussions with other employees about pay issues were the basis for plaintiff’s
termination. See Docket No. 30 at 8-9, ¶¶ 33-34. While defendants argue that plaintiff
was not terminated because his discussions concerned meeting-time pay, but rather
because such discussions “poison[ed] the work environment,” it is nevertheless
undisputed that plaintiff was terminated on the basis that he had these discussions.
See id. at 17. On these facts, a reasonable jury could conclude that there was a causal
connection between plaintiff complaining of meeting-time pay and his termination.
The burden then shifts to defendants to offer a legitimate, non-retaliatory reason
for plaintiff’s termination. See Metzler, 464 F.3d at 1170. Defendants contend that their
reason for terminating plaintiff was his “insubordination, refusal to follow specific and
clear directives, negative attitude, violation of Defendants’ no gossip policy, and his
refusal to accept [the] company’s conclusions about meeting time pay.” Docket No. 30
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at 18. Defendants further contend that plaintiff “was terminated for fomenting
dissension and creating a toxic work environment” and for “disregarding the chain of
command and repeatedly telling employees that the company was wrong for not paying
him to attend sales meetings.” Id. Defendants have established facts “from which the
court may infer a proper reason behind defendant’s decision to discharge plaintiff.” See
Richardson, 987 F. Supp. at 891. Specifically, defendants established facts
demonstrating that plaintiff disregarded the chain of command by continuing to have
discussions about pay issues after Mr. Willey gave the company’s final position and that
plaintiff, through these discussions, also violated the No Gossip Policy. See Torres v.
Bodycote Int’l, 2014 WL 11878452, at *9 (D. Kan. May 23, 2014), aff’d sub nom. 583 F.
App’x 870 (10th Cir. 2014) (unpublished) (finding that defendant set forth a legitimate,
non-discriminatory reason by asserting that “Plaintiff repeatedly refused to undergo
cross-training . . . without a pay raise” and “[u]nder Defendant’s personnel policies,
Plaintiff’s refusal constituted insubordination, which was a ground for termination”);
Barnes v. Securitas Sec. Sys. USA, Inc., 457 F. Supp. 2d 1244, 1251 (D. Kan. 2006)
(plaintiff conceding that “an act of insubordination and a violation of company policy” are
legitimate, non-discriminatory reasons for termination). Given that the Court cannot
make a credibility assessment and defendants’ burden is “exceedingly light” at this
stage of the McDonnell Douglas framework, see Carter, 662 F.3d at 1149, the Court
finds that defendants have set forth a legitimate, non-retaliatory reason for plaintiff’s
termination.
Turning to plaintiff’s burden to show pretext, “[a] plaintiff demonstrates pretext by
showing either that a discriminatory reason more likely motivated the employer or that
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the employer’s proffered explanation is unworthy of credence.” Foster v. Mountain Coal
Co., LLC, 830 F.3d 1178, 1194 (10th Cir. 2016) (quoting Zamora v. Elite Logistics, Inc.,
478 F.3d 1160, 1166 (10th Cir. 2007)). “Pretext can be inferred from evidence revealing
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s explanation.” Walkingstick Dixon v. Oklahoma ex rel. Reg'l Univ. Sys. of
Okla. Bd. of Regents, 125 F.4th 1321, 1337 (10th Cir. 2025) (citation omitted). “The
critical question regarding this aspect of the McDonnell Douglas rubric is whether a
reasonable factfinder could rationally find the employer’s rationale unworthy of credence
and hence infer that the employer did not act for the asserted non-retaliatory reasons.”
Id. (quoting Lounds v. Lincare, Inc., 812 F.3d 1208, 1234 (10th Cir. 2015)).
Defendants concede that plaintiff’s activities were protected and do not indicate
that any aspect of plaintiff’s activities were not protected. See Docket No. 30 at 16.
Plaintiff’s activities included his initial discussion with Mr. Dorais in October 2023 about
meeting-time pay and his follow-up with Mr. Willey in November 2023. See id. at 7,
¶¶ 28-29. Plaintiff was engaged in protected activity when he spoke with defendants’
management team, including Mr. Spencer, Mr. Dorais, Ms. DeJoy, and Ms. Rudnik,
about his complaints and when he spoke with Colorado Water team members Mr.
Henderson and Mr. Kirkwood in November 2023. See id. at 8, ¶ 30. Defendants
acknowledge that they terminated plaintiff for having these discussions. See id. at 18.
While defendants characterize plaintiff’s discussions as fomenting dissension, creating
a toxic work environment, being violative of the No Gossip policy, and disregarding the
chain of command, these purported reasons for terminating plaintiff are “inextricably
intertwined” with plaintiff’s protected activity. See Gower v. IKON Off. Sols., Inc., 155 F.
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Supp. 2d 1268, 1274 (D. Kan. 2001). Thus, there is a “question of fact concerning
whether plaintiff’s allegedly insubordinate behavior was the true reason for defendant’s
actions or whether the contents of plaintiff’s complaints motivated defendant’s
decisions.” See id. Because a “reasonable factfinder could rationally find the
employer’s rationale unworthy of credence and hence infer that the employer did not act
for the asserted non-retaliatory reasons,” the Court finds that plaintiff has met his
burden at this stage of the proceedings to establish pretext. See Dixon, 125 F.4th at
1337 (citation omitted). Accordingly, the Court finds that defendants are not entitled to
summary judgment on Claims Four and Five.
4. 	Claim Six – Colorado Pay Transparency Act
Plaintiff brings his sixth claim pursuant to the Equal Pay for Equal Work Act,
Colo. Rev. Stat. § 8-5-101 et seq. Docket No. 22 at 24-25, ¶¶ 136-147. The complaint
alleges that defendants violated § 8-5-102(2)(d), id. at 25, ¶ 144, which provides that an
employer shall not:
(d) Discharge, discipline, discriminate against, coerce, intimidate, threaten, or
interfere with an employee or other person because the employee or person
inquired about, disclosed, compared, or otherwise discussed the employee’s
wage rate.
Colo. Rev. Stat. § 8-5-102(2)(d).
Defendants argue that they are entitled to summary judgment on Claim Six for
the same reasons that they are entitled to summary judgment on Claims Four and Five.
See Docket No. 30 at 15-19. While defendants apply the McDonnell Douglas
framework, see id., it is unclear whether this framework applies to claims brought
pursuant to § 8-5-102(2)(d). Nevertheless, for the reasons discussed regarding Claims
Six and Five, the Court finds that a reasonable jury could conclude that plaintiff was
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terminated because he “inquired about, disclosed, compared, or otherwise discussed”
his wage rate. See Colo. Rev. Stat. § 8-5-102(2)(d); see also Hart v. Digitalzone Inc.,
No. 23-cv-00531-GPG-SBP, 2025 WL 1927622, at *17 (D. Colo. May 30, 2025)
(denying summary judgment for defendant on plaintiff’s Equal Pay for Equal Work claim
because “a reasonable jury could conclude that [plaintiff’s] termination would not have
occurred without a desire to retaliate against him for the wage negotiations” where the
purported reasons for firing plaintiff were “intertwined with the wage discussions”).
Accordingly, the Court will deny summary judgment for defendants on Claim Six. 6
5. 	Claims Against Walter Scott Spencer
Defendants argue that they are entitled to summary judgment on all claims
against defendant Spencer because he was not plaintiff’s employer. See Docket No. 30
at 19-20. Plaintiff does not respond to this argument. See generally Docket No. 31.
6 Under Claim Six, the complaint cites Colo. Rev. Stat. § 8-5-102(2)(f), Docket
No. 22 at 25, ¶ 144, which provides that an employer shall not:
(f) Require an employee to sign a waiver or other document that:
(I) Prohibits the employee from disclosing wage rate information; or
(II) Purports to deny the employee the right to disclose the employee’s
wage rate information.
Colo. Rev. Stat. § 8-5-102(2)(f). However, the factual allegations in support of Claim
Six do not identify a “waiver or document” that plaintiff signed. Rather, the allegations
focus only on defendants’ alleged retaliation in response to plaintiff’s meeting-time pay
complaints. See, e.g., Docket No. 22 at 24-25, ¶¶ 137-139, 141-142. Moreover,
plaintiff does not address any claim brought pursuant to § 8-5-102(2)(f) in his response.
See generally Docket No. 31 at 1. Accordingly, the Court will dismiss that portion of
Claim Six brought pursuant to Colo. Rev. Stat. § 8-5-102(2)(f).
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“The FLSA and CWA recognize the possibility that an employee may have more
than one employer, and in such instances the employers may be held jointly and
severally liable.” Kimes v. Alshawy, No. 23-cv-00082-RMR-MDB, 2024 WL 2864147, at
*3 (D. Colo. May 20, 2024). Furthermore, the FLSA and the CWA allow individuals to
be considered “employers.” See Gomez v. Timberline Custom Builders, LLC, No. 23-
cv-01510-RMR, 2025 WL 2613741, at *3 (D. Colo. Sept. 10, 2025). To determine
whether an individual can be considered an employer under the FLSA and CWA, courts
consider the following factors: “whether the alleged employer: (1) has the power to hire
and fire the employee; (2) supervises and controls the employee's work schedule or
conditions of employment; (3) determines the rate and method of payment; and (4)
maintains employment records.” See id. An employer under the Equal Pay for Equal
Work Act “means the state or any political subdivision, commission, department,
institution, or school district thereof, and every other person employing a person in the
state.” Colo. Rev. Stat. § 8-5-101(5). 7
7 In considering whether an individual can be an employer under the Equal Pay
for Equal Work Act, the Court will apply the factors applicable under the FLSA and
CWA. The Equal Pay for Equal Work Act “is very similar to the federal Equal Pay Act
(“EPA”), 29 U.S.C. § 206(d).” Prkic v. Sezzle, Inc., No. 24-cv-02624-PAB-NRN, 2025
WL 2918857, at *6 (D. Colo. Aug. 25, 2025), report and recommendation adopted in
part, rejected in part on other grounds, 2025 WL 2655933 (D. Colo. Sept. 17, 2025). In
turn, because the EPA is an amendment to the FLSA, the “definition section of Chapter
8 applies equally to the FLSA and the EPA.” See Shafer v. Young Auto. Grp., Inc.,
2018 WL 4688342, at *2 (D. Utah Sept. 28, 2018) (citing Holliday v. WSIE 88.7 FM
Radio Station, 2005 WL 3312633, at *5 (S.D. Ill. Dec. 7, 2005) (“The EPA is part of the
Fair Labor Standards Act (“FLSA”), and necessarily shares the definition of employer
contained within FLSA.”)).
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It is undisputed that defendant Spencer does not have final input or final
decision-making authority into hiring or firing employees; does not supervise any
employees nor monitor their performance; does not control employee work schedules;
was not responsible for company pay practices and did not determine plaintiff’s rate of
pay; and does not maintain employee records. Docket No. 30 at 9-10, ¶ 36. Thus, the
Court finds that defendant Spencer was not plaintiff’s employer and cannot be held
liable. Accordingly, the Court will grant summary judgment for defendant Spencer on all
claims asserted against him.
IV. 	CONCLUSION
Therefore, it is
ORDERED that Defendants’ Motion for Summary Judgment [Docket No. 30] is
GRANTED in part and DENIED in part. It is further
ORDERED that plaintiff’s claims against defendant Walter Scott Spencer are
DISMISSED with prejudice. It is further
ORDERED that Claims One, Two, and Three are DISMISSED with prejudice. It
is further
ORDERED that the portion of Claim Six brought pursuant to Colo. Rev. Stat. § 8-
5-102(2)(f) is DISMISSED with prejudice.
DATED March 25, 2026.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
United States District Judge
____	__	________________________
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