Vander Boegh v. EnergySolutions, Inc et al
Filing
52
MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 5/3/2012; re 46 MOTION for Summary Judgment filed by Paducah Remediation Services, LLC, 47 MOTION for Summary Judgment filed by Bechtel Jacobs Company LLC, 39 MOTION for Summary Judgment filed by EnergySolutions, Inc ; an appropriate order shall entercc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. 5:10-CV-31
GARY VANDER BOEGH
PLAINTIFF
V.
ENERGY SOLUTIONS, INC., et al.
DEFENDANTS
MEMORANDUM OPINION
This matter is before the Court upon Energy Solutions, Inc.’s (DN 39), Paducah
Remediation Services, LLC’s (DN 46), and Bechtel Jacobs Company LLC’s (DN 47) motions
for summary judgment. These matters have been fully briefed and are now ripe for adjudication.
For the following reasons, Defendants’ motions (DN 39, DN 46, and DN 47) are GRANTED.
BACKGROUND
Plaintiff Gary Vander Boegh (“Plaintiff”) brought suit against the defendants for alleged
whistleblower retaliation under the Energy Reorganization Act (“ERA”), the False Claims Act
(“FCA”), and a number of various environmental statutes1 after his employment as the landfill
manager at the Paducah Gaseous Diffusion Plant (the “Plant”) ended in 2006.
In 1998, the United States Department of Energy (“DOE”) contracted with Defendant
Bechtel Jacobs Company (“BJC”) to serve as the Management and Integration (“M & I”)
Contractor at the Plant. As the M & I Contractor, BJC was responsible for the Plant’s nuclear
enrichment program and the site’s environmental management. Pursuant to the contract between
BJC and the DOE, BJC subcontracted out blocks of scope work that were formerly managed
1
Reincorporating the same facts that make up the basis of his ERA retaliation claim, Plaintiff
alleges retaliation under the whistleblower protection provisions of the following environmental
statutes: The Solid Waste Disposal Act, 42 U.S.C. § 6971; the Clean Water Act, 33 U.S.C. §
1367; the Safe Drinking Water Act, 42 U.S.C. § 300j-9(i)(2)(B)(ii); and the Toxic Substances
Control Act, 15 US.C.§ 2622.
1
directly by DOE contractor Lockheed Martin. Employees of Lockheed Martin were transitioned
to BJC on April 1, 1998 when the BJC contract began and were termed “Grandfathered
Employees.” Thereafter, the Grandfathered Employees were transitioned from BJC to BJC’s
chosen subcontractors.
In February 2000, BJC subcontracted to WESKEM, LLC (“WESKEM”) the waste
management and disposal work for the Plant. This included the operation of the C-746-U
Landfill (the “Landfill”) which was used to dispose of waste materials generated at the Plant.
Plaintiff, who was previously employed by Lockheed Martin, transitioned to BJC in the role of
Landfill Manager. Once BJC subcontracted the operation of the Landfill to WESKEM,
Plaintiff’s employment was transitioned to WESKEM. As the Landfill Manager, Plaintiff was
the highest-ranking employee on site at the Landfill. The Landfill could not accept waste if a
certified landfill manager was not present. The Kentucky Division of Waste Management
(“KDWM”) required key personnel disclosure statements for the Landfill Manager position.
While employed by WESKEM as the Landfill Manager, Plaintiff made several
complaints concerning leachate storage capacity and leachate leakage from the Landfill.
Beginning February 2, 2001, Plaintiff sent several emails to BJC and WESKEM officials
concerning the lack of reserve leachate tank space and the potential problems that could create
for the operation of the Landfill. DN 47-3 at p. 2; DN 48-65 at p. 5. In response to what
Plaintiff perceived to be adverse employment actions motivated by the complaints, Plaintiff filed
whistleblower retaliation complaints with the DOE Contractor Employee Protection Program, 10
C.F.R. Part 708 (“Part 708 Complaints), against BJC and WEKSEM on January 4, 2002. DN
48-65 at p. 3. In the July 11, 2003 Initial Agency Decision, the DOE Hearing Officer found that
the following complained-of acts were retaliatory: (1) a March 5, 2001 disciplinary
2
memorandum from WESKEM Project Manager Dan Watson; (2) a 2001 decision not to provide
additional office space to Plaintiff and his support staff at the U Landfill; (3) an August 2001
proposal to relocate Plaintiff’s office from the U Landfill to the Plant site; (4) a reduction in
Plaintiff’s support staff; (5) a proposed subcontract change notice considered in March 2002
which would have affected Plaintiff’s position as the landfill manager; (6) ongoing acts of
harassment and intimidation by BJC personnel, specifically Kevin Barber;2 and (7) a 2001
annual performance evaluation. DN 48-65 at p. 14-39 With respect to Plaintiff’s complaint of a
proposed subcontract change, the Hearing Officer directed BJC to refrain from recommending
any changes with respect to Plaintiff’s job position for a period of one year from the date of the
Initial Agency Decision. DN 48-65 at p. 65. All of Plaintiff’s retaliation complaints were either
concluded, settled, or dismissed by 2008.3
In 2003, as a part of a new strategy to increase its small business contracting, the DOE
decided to re-bid the DOE work at the Plant as two small business set-aside work scopes and
issued a Request for Proposals (“RFP”). Defendant Paducah Remediation Services (“PRS”) and
Northwind Corporation were among the companies that submitted bids in response to this RFP.
Northwind Corporation, which named WESKEM as the subcontractor in its bid, was named as
the successful bidder to take over the contract. After a protest was filed against the award to
2
Although the DOE found that Barber’s actions may constitute harassment and intimidation of
Plaintiff for his protected activity, the DOE additionally found that there was no need to provide
part 708 relief to Plaintiff with respect to this issue because BJC showed that Barber’s aggressive
conduct towards Plaintiff were remedied. DN 48-65 at p. 30-31.
3
The Final Agency Decision, dated December 18, 2007, concluded that all of the actions
determined to have been retaliatory should have been time barred from consideration with the
exception of the 2001 performance review. DN 47-3. With respect to the 2001 performance
review, the Final Agency Decision reversed the Hearing Officer’s finding that Plaintiff was
harmed by the review. Id. Thus, the Final Agency Decision reversed the remedial actions
ordered by the Hearing Officer in the Initial Agency Decision. Id. On July 16, 2008, the DOE
dismissed Plaintiff’s petition for Secretarial Review. DN 47-4.
3
Northwind Corporation, the DOE rescinded the contract and reissued the RFP. In response to
this renewed RFP, Northwind Corporation and PRS were again among the companies that
submitted bids in August 2005. The DOE awarded the contract to PRS in December 2005.
PRS subcontracted with Duratek Federal Services, Inc. (“Duratek”) to prepare the waste
management portion of its August 2005 bid. Kevin Barber, a former BJC employee who had
become a Duratek employee in 2003, was one of the Duratek employees assigned to help prepare
the August 2005 PRS bid. As part of this assignment, Barber drafted a section of the bid related
to waste management disposition and waste calculations. Plaintiff contends that, in the bid,
Barber described the future landfill manager to mirror himself. Although Barber was not
explicitly named in the bid, the bid proposal identified a “State of Kentucky Certified Landfill
Manager with 12 years of experience coming to the job.” DN 48-37. According to an
unidentified and undated OSHA document presented by Plaintiff, this person was identified
through interviews as Barber. Id. However, Barber testified that he did not recall including such
language in the bid and did not recall discussing its inclusion with anyone. Barber Depo., DN
46-4 at p. 6-8. Instead, Barber testified that he explicitly followed the DOE RFP specifications
as directed. Id. at p. 6-7. Barber stated that he never expressed an interest in obtaining the
landfill manager position at the Plant.4 However, Paul Corpstein stated that Barber had visions
of himself becoming the Landfill Manager, but left the company before the end of 2005.
Corpstein Statement to OSHA, DN 48-51 at p. 5.
BJC’s contract, and therefore WESKEM’s subcontract, was scheduled to terminate on
April 23, 2006. Beginning in January 2006, PRS engaged in a transitional period so it could be
4
Barber testified that he quit his job at BJC in 2003 because his son was born and died in a
hospital in Paducah. Id. at p. 10. Because of this, he realized his family would never have
medical care if they remained in Paducah and sought to leave the city. Id. Barber then became
an employee of Duratek in Oak Ridge, Tennessee.
4
ready to assume management of the Plant on April 24, 2006. PRS subcontracted with Duratek to
take over the waste management duties previously performed by WESKEM. Duratek later
became Energy Solutions, Inc. (“Energy Solutions”), the defendant in this case. As part of the
transitioning process, PRS-Energy Solutions worked with BJC-WESKEM to transition the
landfill management and operations from WESKEM to Energy Solutions.
In January 2006, Energy Solutions employee John Kelly was assigned as a project
manager for material disposition responsible for facilitating the transition. Kelly Depo., DN 40-4
at p. 7. Kelly was the highest-ranking authority for Energy Solutions on site during the transition
and oversaw five other employees including Paul Corpstein and Matt LeBarge. Id. at p. 8. Kelly
testified that he was the sole person responsible for selecting an individual to be the certified
landfill manager at the Plant. DN 40-4 at p. 12. Kelly further testified that when he arrived on
site in January 2006, there was no preconceived idea about whether the landfill manager would
be filled by an existing Duratek/Energy Solutions employee, the existing WESKEM landfill
manager, or by an open search for the position. Id. at 12-13. According to Kelly, he received no
direction from any superiors in this regard. Id. at 13. Additionally, Kelly testified that no one
suggested that Plaintiff not be considered for the landfill manager position. Id. at p. 16.
According to Energy Solutions, a decision was made to offer Corpstein the landfill
manager position sometime from mid-February to the first week of March. During the transition
process, Corpstein was responsible for landfill activities, including landfill procedures and
permits. Id. at p. 9-10. After working closely with Corpstein, Kelly began to envision Corpstein
as a candidate for the landfill manager position by the end of February. Id. at p. 15. Corpstein,
in his affidavit, stated that he expressed an interest in the landfill manager position within a few
weeks of arriving on site. Corpstein Affidavit, DN 40-5 at ¶ 7. Before making the decision,
5
Kelly conferred with James Hopper, Kelly’s immediate supervisor. Hopper Affidavit, DN 40-2
at ¶ 10. Hopper endorsed Kelly’s decision to hire Corpstein as the landfill manager based on
Corpstein’s experience and credentials. Id. To the best of Mr. Hopper’s knowledge, no one
other than Corpstein was considered or interviewed for the landfill manager position.5 Id. at ¶
11.
According to Corpstein, he was verbally offered the landfill manager position by Kelly
by mid-February 2006, but did not sign a contract until the second week of April. DN 40-5 at ¶
7. Corpstein, who did not hold a required Kentucky Licensed Landfill Manager certification at
the time he was offered the position, began the process of applying for the necessary classes and
approvals from the Kentucky Division of Waste Management (“KDWM”) by March 9, 2006.
DN 40-5 at ¶ 9. On March 21, 2006, Corpstein received a letter from the KDWM indicating that
his application for the required class was approved. Id. at ¶ 10. The DOE submitted the required
disclosures naming Corpstein as the Interim Landfill Manager on April 13, 2006. 6 Id. at Ex. 3.
On April 19, 2006, Corpstein received a letter from the KDWM indicating that he was approved
as the Interim Landfill Manager at the Plant’s landfill until he could complete the required class.
Id. at ¶ 11. Corpstein attended the required training class on May 17-19, 2006 and obtained his
Kentucky Licensed Landfill Manager certification on May 26, 2006. Id. at ¶ 12.
5
It is disputed whether or not Plaintiff applied for the Landfill Manager position. According to
Plaintiff, PRS-Duratek advertised for the position as a “Field Engineer” which included the
position of Landfill Manager after the date Kelly contends he selected Corpstein for the position.
Plaintiff did interview for a Field Engineer position, but stated that he was not willing to take any
job other than the Landfill Manager position. Vander Boegh Deposition, at p. 188:9-14.
6
The KDWM required the DOE to submit key personnel disclosure statements for the Landfill
Manager position at the Plant. A May 24, 2004 letter from the KDWM stated that it will require
an Applicant Disclosure Statement from the DOE prior to the Hazardous Waste Permit
Reissuance and the U Landfill modification. DN 40-6. The letter further stated that the DOE
must update the disclosure statement for the solid waste landfill manager if any of the
information is outdated. Id.
6
With respect to Plaintiff, Kelly testified that he was familiar with him by seeing his name
listed on an organizational chart and by attending a meeting where Plaintiff was present, but had
never had an individual interaction with him. DN 40-4 at p. 17-18. Kelly testified that, at the
time of his decision to hire Corpstein as the landfill manager, he was not aware of any
complaints, grievances, or employee concerns asserted by Plaintiff against BJC or WESKEM or
filed with the DOE or the United States Department of Labor. Id. at p. 18-19. Kelly testified
that he was also unaware of any safety, regulatory compliance, or other concern raised by
Plaintiff regarding the leachate capacity at the landfill or any other matter. Id. at 12-20.
Additionally, Kelly testified that no one from BJC, WESKEM, the DOE, or PRS attempted to
influence his hiring decision in any manner. Id. at 21.
On February 24, 2006, Plaintiff filed another DOE Employee Concerns Program
whistleblower complaint against BJC, PRS, and the DOE alleging that these entities were
conspiring to ensure that he was not allowed to continue in his employment because of his
previous protected disclosures. Specifically, Plaintiff complained that BJC, PRS, and the DOE
conspired to coerce him into accepting waste in violation of DOE waste acceptance criteria,
permit documents, and Kentucky Administrative Regulations. DN 48-58 at p. 1. Plaintiff
further complained that BJC, PRS, and the DOE were not complying with his requests to prepare
key personnel disclosure statements, which he alleged was a violation of the DOE’s July 11,
2003 Initial Agency Decision. DN 48-58 at p. 2-3. After engaging in extensive discovery and
before this case went to an administrative hearing, Plaintiff removed this action to this Court
pursuant to 42 U.S.C. § 5851(b)(4).
SUMMARY JUDGMENT STANDARD
7
Summary judgment is appropriate where “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 determining whether summary judgment is appropriate, a court must resolve
all ambiguities and draw all reasonable inferences against the moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of material
fact.” Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether
the party bearing the burden of proof has presented a jury question as to each element in the case.
Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere
scintilla of evidence in support of his position; the plaintiff must present evidence on which the
trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for
summary judgment: “the mere existence of a colorable factual dispute will not defeat a properly
supported motion for summary judgment. A genuine dispute between the parties on an issue of
material fact must exist to render summary judgment inappropriate.” Moinette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).
ANALYSIS
I. Standards for ERA and FCA Retaliation Claims
Plaintiff has asserted whistleblower retaliation complaints against Defendants under the
Energy Reorganization Act (“ERA”), the False Claims Act (“FCA”), and other various
environmental statutes. The ERA prohibits employers from discriminating against any employee
“with respect to his compensation, terms, conditions, or privileges of employment because the
employee” engaged in a protected whistleblowing activity. 42 U.S.C. § 5851(a). “The FCA
8
protects ‘whistleblowers’ who pursue or investigate or otherwise contribute to a qui tam action,
exposing fraud against the United States government.” McKenzie v. BellSouth
Telecommunications, 219 F.3d 508, 513 (6th Cir. 2000); see 31 U.S.C. §§ 3729-3730. Pursuant
to the FCA,
Any employee, contractor, or agent shall be entitled to all relief necessary to make
that employee, contractor, or agent whole, if that employee, contractor, or agent is
discharged . . . . or in any other manner discriminated against in the terms and
conditions of employment because of lawful acts done by the employee,
contractor, or agent on behalf of the employee, contractor, or agent or associated
others in furtherance of other efforts to stop 1 or more violations of this
subchapter.
31 U.S.C. § 3730(h).
Plaintiff’s retaliation claims are analyzed under the McDonnell-Douglass burden-shifting
framework. See Hasan v. United States Department of Labor, 298 F.3d 914, 916 (10th Cir.
2002); Scott v. Metropolitan Health Corp., 234 Fed. Appx. 341, 346 (6th Cir. 2007); Sasse v.
United States Department of Labor, 409 F.3d 773, 779 (6th Cir. 2005) (“To state a claim under
the whistleblower provision of an environmental statute, the plaintiff must establish that his
employer retaliated against him because he engaged in a protected activity.”). Thus, to establish
a prima facie case of retaliation, Plaintiff must show the following by a preponderance of the
evidence: (1) he engaged in a protected activity under the applicable statute; (2) his employer or
the entity from which he sought employment knew of this protected activity; (3) his employer or
the entity from which he sought employment took some adverse action against him; and (4) a
causal connection between the protected activity and the adverse action. Balmer v. HCA, Inc.,
423 F.3d 606, 613-14 (6th Cir. 2005), abrogated on other grounds by Fox v. Vice, 131 S. Ct.
2205 (2011).
9
If Plaintiff successfully establishes a prima facie case of retaliation, the burden shifts to
his employer who must assert a legitimate, non-retaliatory reason for the adverse employment
action. Balmer, 423 F.3d at 614. Under the ERA, the employer must ultimately prove that it
would have taken the same unfavorable personnel action in the absence of the protected activity
by clear and convincing evidence. Trimmer v. U.S. Dept. of Labor, 174 F.3d 1098, 1102 (10th
Cir. 1999). See C.F.R. § 24.109(b). Under the FCA and the other environmental statutes, the
employer must show this by a preponderance of the evidence. Simon v. Simmons Foods, Inc.,
49 F.3d 386, 389 (1995). If the employer meets this burden, the burden is shifted back to
Plaintiff who must prove not only that the employer’s proffered reason for the adverse
employment action was a pretext, but that the real reason for the employer’s action was
intentional retaliation. Imwalle v. Reliance Medical Products, Inc., 515 F.3d 531, 544 (6th Cir.
2008). However, “it is permissible for the trier of fact to infer the ultimate fact of discrimination
from the falsity of the employer’s explanation.” Reeves v. Sanderson Plumbing Prods., 530 U.S.
133, 147 (2000).
II. Energy Solutions’ Motion for Summary Judgment
Defendant Energy Solutions contends that summary judgment is appropriate because
Plaintiff cannot establish a prima facie case of retaliation under the ERA, the FCA, or the various
environmental statutes. Energy Solutions further contends that Plaintiff cannot prevail on his
retaliation claim under the FCA because he was never employed by Energy Solutions and
therefore lacks standing to bring such a claim.
a. Evidence to be Considered
In its reply in support of its motion for summary judgment, Energy Solutions contends
that Plaintiff failed to oppose its motion with admissible evidence. Pursuant to Federal Rule of
10
Civil Procedure 56(c)(1)(A), “[a] party asserting that a fact cannot be or is genuinely disputed
must support the assertion by . . . citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials . . . .” The Rule further provides that “[a]n affidavit or declaration used to
support or oppose a motion must be made on person knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4). Unsworn declarations may be considered as evidence
only if signed as true under penalty of perjury and dated. 28 U.S.C. § 1746; Bonds v. Cox, 20
F.3d 697, 702 (6th Cir. 1994). If a party fails to properly address another party’s assertion of fact
in accordance to Rule 56(c), the court may do one of the following: “(1) give an opportunity to
properly support or address the fact; (2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials--including the facts
considered undisputed--show that the movant is entitled to it; or (4) issue any other appropriate
order.” Fed. R. Civ. P. 56(e).
Plaintiff, throughout his response, cites to an unsigned and undated affidavit which he
filed as an attachment to his response (DN 42-1). Plaintiff additionally cites to certain exhibits to
the affidavit which he did not file as attachments to his response. Energy Solutions contends that
its motion for summary judgment should be granted because Plaintiff’s unsigned and undated
declaration is insufficient and ineligible for consideration by the Court. Plaintiff’s unsigned and
undated affidavit attached to his response to Energy Solution’s motion for summary judgment
(DN 42-1) must be excluded from consideration. However, Plaintiff has filed the same Affidavit
as an attachment to his response to the other defendants’ motions for summary judgment. DN
11
48-2 and DN 49-2). These Affidavits are signed under penalty of perjury and dated. Id. at p. 50.
Pursuant to Rule 56, the Court may consider materials in the record other than those cited in
Plaintiff’s response. Fed. R. Civ. P. 56(c)(3). Accordingly, the Court will not consider the
affidavit attached to Plaintiff’s response to Energy Solutions’ motion for summary judgment, but
will consider the affidavits attached to Plaintiff’s response to the other defendants’ motions for
summary judgment.
b. Plaintiff’s Prima Facie Case of Retaliation
Energy Solutions does not dispute that Plaintiff engaged in a protected activity and that
he suffered an adverse employment action; however, it contends that Plaintiff cannot meet the
second and fourth elements of a prima facie case of retaliation. Specifically, Energy Solutions
contends that Plaintiff cannot show that his employer knew of his protected activity because the
person responsible for hiring the landfill manager, John Kelly, did not know of Plaintiff’s
whistleblower complaints or safety concerns at the time he decided to hire Corpstein as the
landfill manager at the Plant. Thus, Energy Solutions argues that Plaintiff cannot establish a
causal connection between his protected activities and the decision not to hire him. In response,
Plaintiff argues that (1) the relevant decision to remove him as landfill manager was made in
August 2005 and not when Kelly hired Corpstein, and that (2) Kelly knew of Plaintiff’s protected
activities and/or was influenced by others who knew of Plaintiff’s protected activities.
i. When Decision was Made
The decision-maker’s knowledge of Plaintiff’s protected activities is an essential element
of his prima facie case of retaliation. Frazier v. USF Holland, Inc., 250 Fed. Appx. 142, 148
(6th Cir. 2007) (citing Mulhall v. Ashcroft, 287 F.3d 543, 551 (6th Cir. 2002)). Without showing
that the decision-maker knew of his protected activities, Plaintiff cannot show a causal
12
connection between his protected activities and his termination. Before determining whether the
relevant decision-maker had knowledge of Plaintiff’s protected activities, the Court must
determine whether there is a genuine issue of material fact regarding when the decision to hire
Paul Corpstein, and thus not to hire Plaintiff, was made. Plaintiff contends that, for purposes of
determining whether Energy Solutions had knowledge of his protected activities, the inquiry
should focus on two separate decision points: (1) the decision to remove him as landfill manager
and to replace him with Barber, as evidenced by the August 2005 PRS bid; and (2) the decision
to hire Corpstein.
Plaintiff cannot show that the inclusion of the certified landfill manager’s qualifications
mirroring Barber’s own qualifications in the August 2005 PRS bid constituted a decision to
terminate Plaintiff. Even considering the evidence in the light most favorable to Plaintiff,
Plaintiff has not presented more than a scintilla of evidence to support his position. Besides an
excerpt from an unidentified and undated OSHA document which stated that the landfill
manager described in the bid was identified through interviews as Barber, Plaintiff has presented
no other admissible evidence to support his position that the decision was made in August 2005
to replace him with Barber.7 Plaintiff failed to present any evidence that Barber was told to draft
the landfill manager qualifications in such a way so as to mirror himself and to exclude the
possibility of Plaintiff continuing in the landfill manager position. Further, although Plaintiff
contends that the language included in the bid would have been approved by higher PRS and
Duratek/Energy Solutions management (Plaintiff’s Declaration, DN 48-2 at ¶ 44), Plaintiff has
7
In his declaration, Plaintiff includes several inadmissible hearsay and double-hearsay
statements regarding Barber being chosen to replace Plaintiff as landfill manager. Declaration, ¶
62 (“[Brian Bell] said that one of the DES employees, Paul Corpstein, during the waste meeting,
indicated, ‘that he had hired Kevin Barber.’”) and ¶ 65 (“[Kendal Holt and Andy Crabtree] had
jokingly indicated, ‘Barber was going to take my job.’”).
13
neither identified the “higher management” nor presented any evidence that the language was
reviewed or approved by higher management. Finally, even if Barber purposefully drafted the
landfill manager’s qualification to mirror his own, Plaintiff has not shown that its inclusion
precluded him from obtaining the landfill manager position in the event that PRSDuratek/Energy Solutions was awarded the bid from the DOE. Accordingly, Plaintiff cannot
establish that Barber and the higher management of PRS and Duratek/Energy Solutions were the
relevant decision-makers with respect to the decision to not hire Plaintiff as the landfill manager.
Thus, the Court will focus its inquiry on whether there is a genuine issue of material fact
as to whether John Kelly knew of Plaintiff’s protected activities at the time he made the decision
to hire Corpstein. For purposes of Plaintiff’s retaliation claims, the relevant point in time for
determining whether the decision-maker knew of Plaintiff’s protected activities is the time of the
decision to hire Corpstein. If the decision-maker had no knowledge of Plaintiff’s protected
activities at the time the decision was made, it follows that the decision-maker did not have the
requisite retaliatory intent for Plaintiff to succeed on his retaliation claims. Thus, the decisionmaker’s knowledge of Plaintiff’s protected activities at the time the hiring process was finalized,
when Corpstein signed the contract or when PRS’s contract at the Plant officially began, is
immaterial.
Energy Solutions contends that Kelly, who was solely responsible for the decision of who
to hire to fill the landfill manager position, did not have knowledge of Plaintiff’s protected
activities until after he made the decision to hire Corpstein in mid- to late- February 2006.
According to Corpstein, he was verbally offered the position by Kelly by mid-February 2006, but
did not sign a contract until the second week of April. DN 40-5 at ¶ 7. Corpstein, who did not
hold a Kentucky Licensed Landfill Manager certification at the time he was offered the position,
14
began the process of applying for the necessary classes and approvals from the Kentucky
Division of Waste Management (“KDWM”) by March 9, 2006. DN 40-5 at ¶ 9. Kelly
disavowed any knowledge of Plaintiff’s protected activities, testifying that he was not aware of
any complaints, grievances, safety concerns, or employee concerns voiced by Plaintiff against
BJC, WESKEM, the DOE, PRS or any other entity when he made the decision to assign
Corpstein to the landfill manager position. Kelly Deposition, DN 40-4 at p. 18-20.
In response, Plaintiff contends that Energy Solution’s position that the decision to hire
Corpstein was made in mid to late February 2006 is refuted by PRS’s April 3, 2006 disclosure to
KDWM wherein PRS stated that “Continuation or change in the certified Landfill Manager and
certified Landfill Operator will be addressed after hiring with subsequent submittal of the
required disclosure statements.” DN 48-41. Plaintiff further contends that defendant’s position
is refuted by evidence that the landfill manager position was listed on PRS’s website as late as
March 14, 2006 (DN 48-47) and April 3, 2006. The March 14, 2006 listing did list a “Certified
Landfill Manager” as an open position. DN 48-47. However, it appears that the April 3, 2006
listing was for a Field Engineer. Plaintiff Email to Rick Penpek, DN 48-50 at p. 2. Plaintiff
asserts that the landfill manager position would fall under the listed Field Engineer position;
however, the defendants dispute that this job listing was for the landfill manager position. When
Plaintiff interviewed for the position, he was told several times that it was not an interview for
the landfill manager position. LaBarge DOL Interview, DN 48-50 at p. 9-10.
Although Corpstein did not sign a contract for the landfill manager position until the
second week of April, the evidence shows that the decision was made to offer the position to him
much earlier. The evidence shows that the decision was made by March 9, 2006 at the latest,
when Corpstein applied for the necessary classes and approvals from the KDWM. There is also
15
evidence that the decision was made several weeks earlier. Charlene Roberts, a PRS manager,
contacted the KDWM on February 22, 2006 to advise it that PRS may have someone else for the
Landfill manager and Landfill Operator position. LaBarge DOL Interview, DN 48-50, at p. 4;
Plaintiff’s Response to PRS’s Motion for Summary Judgment, DN 48 at p. 8-9. PRS’s April 3,
2006 disclosure statement does not refute the defendant’s position regarding when the decision
to hire Corpstein was made, as it reflects PRS’s position that it was not involved in the hiring
decision and the fact that Corpstein had not signed the contract for the landfill manager position.
Although Corpstein did not sign a contract until the second week of April, the decision was
already made to hire him, as evidenced by his applications for the necessary class and approvals.
Additionally, even assuming that the Field Engineer position included the landfill manager
position, the job postings alone are not sufficient to show that the decision to hire Corpstein was
not made until after Kelly learned of Plaintiff’s protected activities in mid to late March. The
listings were shown on the PRS website; however, the website listing and the evidence shows
that it was Energy Solution’s responsibility to hire the landfill manager. The job listings
remaining on the PRS website after the decision was made to hire Corpstein, but before
Corpstein signed a contract the second week of April, is not inconsistent with Energy Solutions’
position that it had already made the decision to hire Corpstein. Accordingly, the decision to hire
Corpstein was made by March 9, 2006 at the latest.
ii. Whether the Decision-Maker Knew of Plaintiff’s Protected Activities at
the Time the Decision was Made
Plaintiff contends that Kelly had either actual or imputed knowledge of Plaintiff’s
protected activities prior to the time he decided to hire Corpstein, and that Kelly was influenced
by others with knowledge of Plaintiff’s protected activities. Typically, a plaintiff proceeding
under the McDonnell-Douglass analysis will be able to produce direct evidence that the decision
16
making officials knew of the plaintiff’s protected activity; however, knowledge of a protected
activity may be shown by circumstantial evidence. Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th
Cir. 2002). “Under a federal test of the sufficiency of circumstantial evidence, an inference must
not be based on conjecture, speculation, or mere possibility.” Menne v. Celotex Corp., 861 F.2d
1453, 1463 (10th Cir. 1988).
In support of Plaintiff’s position that Kelly had actual or imputed knowledge of
Plaintiff’s protected activities at the time the decision to terminate him or to hire Corpstein was
made, Plaintiff points to the following evidence:
1. A February 13, 2006 meeting with the PRS transition team including Corpstein
and Steve Davis where Plaintiff raised the issue of leachate storage.
2. A February 14, 2006 meeting with PRS managers John Razor and Mike Spry
where Plaintiff informed them that he had a section 708 complaint open. During
this meeting, Plaintiff directed Razor and Spry to his 10 CFR Part 708 ECP claim
on the DOE website. Plaintiff then raised his leachate leakage concerns. Plaintiff
additionally asked Razor how he would know to file his application for the
landfill manager position. In response, Plaintiff contends Razor told him to “be
sure to watch the PRS job postings listed on their website.” Plaintiff Declaration
at ¶ 73(b). According to Razor, he told Plaintiff to submit an expression of
interest for any position that he felt interested in and for which he qualified. DN
48-57. Plaintiff sent a follow-up letter to Razor and Spry on February 17, 2006,
documenting the February 14, 2006 conversation.
3. A February 24, 2006 meeting, with Kelly present, wherein Plaintiff raised
concerns regarding the filing of required landfill key personnel disclosure
statements. After raising his concerns, Plaintiff was informed that the disclosure
statements were not being discussed at this meeting.
4. A March 10, 2006 memorandum from Plaintiff to Razor and Spry wherein he
referred to the leachate storage tank deficiencies and treatment plant design
deficiencies. DN 48-48.
5. Kelly’s interview with OSHA wherein he stated that he learned about leachate
concerns in mid- to late- March or early April. DN 48-49.
6. Matt LaBarge’s interview with OSHA wherein he said that he directly reported to
Kelly, that he saw emails from Plaintiff addressing the leachate problem, and that
he knew Plaintiff issued a stop work order on March 15, 2006. Additionally,
17
LaBarge stated in the interview that Kelly was aware of Plaintiff’s leachate
concerns prior to April 24, 2006 because Plaintiff was raising the issues in his
emails. DN 48-50.
In sum, Plaintiff argues that Kelly had knowledge of his protected activities because
individuals who had actual knowledge of Plaintiff’s protected activities worked with or around
Kelly, such as Corpstein, Barber, LaBarge, Razor, and Spry. For example, Plaintiff argues that
because Barber, who was a primary subject of Plaintiff’s Part 708 complaint, reported to
Corpstein, and Corpstein worked closely with Kelly during the transition process, there is reason
to conclude that knowledge of Plaintiff’s whistleblower status would have been communicated
from the bottom up. DN 42 at p. 25. With respect to the February 13, 2006 meeting where
Plaintiff raised his concerns regarding leachate storage, Plaintiff states that there is “certainly
reason to infer that Corpstein would have communicated the content of meeting” to Kelly. With
respect to Plaintiff’s February 14, 2006 communications with Razor and Spry, Plaintiff states
that “there is reason to conclude that knowledge of whistleblower status would have been
communicated to Kelly from the top down” after this meeting. Additionally, Plaintiff argues that
Kelly “should have known” of his protected activities due to Kelly’s admitted role of performing
due diligence during the transition process and information regarding Plaintiff’s complaints
posted by the DOE on the internet.
In Clover v. Total System Services, Inc., 176 F.3d 1346 (11th Cir. 1999), a Title VII
retaliation case, the plaintiff alleged that she was terminated in retaliation for participating in an
investigation into complaints of discrimination. The plaintiff argued that because an individual
present at the investigation spoke to the decision-maker shortly after the investigation and before
the decision-maker decided to terminate the plaintiff, a reasonable jury could infer that the
decision-maker was told that the plaintiff participated in the investigation. Id. at 1354-55. “But
18
because ‘could have told’ is not the same as ‘did tell,’” the Court of Appeals found that it would
be pure speculation to infer that the decision-maker was actually told of the plaintiff’s protected
activity. Id. at 1355. Accordingly, the plaintiff did not present sufficient evidence to establish
that the decision-maker was aware of her protected conduct. Id. at 1356.
Likewise, here, Plaintiff has suggested that Kelly “could have” or even “should have”
discovered or been told of his protected activities because of his contact with others who knew of
his protected activities. However, such an inference would be purely speculative based upon the
evidence in the record. Kelly has testified that he was not aware of Plaintiff’s protected
activities prior to the time he made the decision to hire Corpstein, and that he did not become
aware of Plaintiff’s protected activities or his leachate concerns until mid- to late-March or early
April. DN 48-49 at p. 2. “[W]here the decision maker denies having knowledge of the alleged
protected activity, the plaintiff must do more than offer only conspiratorial theories or flights of
fancy, speculations, hunches, intuitions or rumors.” Cain v. Potter, 2006 WL 3146435 at *4
(N.D. Ohio Oct. 31, 2006) (internal quotations omitted). Plaintiff has presented no evidence
from which a trier of fact could infer that this disavowal of knowledge is inaccurate. To survive
a motion for summary judgment, Plaintiff must present more than speculations or intuitions.
Mulhall, 287 F.3d at 552 (holding that the plaintiff failed to establish that the decision-maker
knew of his protected activities where plaintiff did not produce any evidence, direct or
circumstantial, to rebut evidence that the decision-maker had no knowledge and plaintiff offered
“only conspiratorial theories, not the specific facts required under the Federal Rule of Civil
Procedure 56”); see Proffit v. Metropolitan Government of Nashville and Davidson County,
Tenn., 150 Fed. Appx. 439, 443 (6th Cir. 2005).
19
Plaintiff also argues that knowledge of his protected activities should be imputed to Kelly
because other individuals with actual knowledge of his protected activities influenced Kelly’s
decision. Knowledge of a plaintiff’s protected activities may be imputed to a decision-maker in
certain circumstances. In Gordon v. New York City Board of Education, 232 F.3d 111 (2d Cir.
2000) and Henry v. Wyeth Pharmaceuticas, 616 F.3d 134 (2d Cir. 2010), the Court of Appeals
for the Second Circuit addressed situations where a corporate agent carries out an adverse
employment action on the explicit or implicit orders of, or pursuant to the encouragement of, a
superior with knowledge of the plaintiff’s protected activities. However, here, Kelly testified
that he received no direction from any superiors with respect to hiring a landfill manager. Kelly
Depo., DN 40-4 at p. 13. Plaintiff has presented no evidence refuting this assertion.
Knowledge of a plaintiff’s protected activities may also be imputed to a decision maker
under the “cat’s paw” theory. The Sixth Circuit has explained that, “[i]n the employment
discrimination context, ‘cat’s paw’ refers to a situation in which a biased subordinate, who lacks
decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger
a discriminatory employment action.” Roberts v. Principi, 283 Fed. Appx. 325, 333 (6th Cir.
2008) (citing Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998)). In
such a situation, “the retaliator is the decisionmaker, and the titular ‘decisionmaker’ is a mere
conduit for the retaliator’s discriminatory animus.” Id. (internal quotations omitted).
“However, when a decisionmaker makes a decision based on an independent investigation, any
causal link between the subordinate’s retaliatory animosity and the adverse action is severed.”
Id.
Here, Plaintiff contends several of the defendants and/or the defendants’ employees
influenced or had substantial input into the decision not to hire him for the landfill manager
20
position, including the following: (1) Barber and those managers who helped prepare the August
2005 proposal, Corpstein, and LaBarge of Energy Solutions; (2) Razor and Spry of PRS; (3) and
BJC. Decision-maker Kelly testified that no one from BJC, WESKEM, PRS, or the DOE
suggested Plaintiff not be considered for the position or attempted to influence or provide input
into the hiring decision. Id. at p. 6, 20-21. After thoroughly examining the record, the Court
finds that Plaintiff has not presented any evidence, other than mere speculations, to rebut this
testimony.
Plaintiff contends that, because Barber was familiar with his whistleblowing and was
found to have retaliated against Plaintiff in 2002, the “fact that Barber himself was inserted into
Vander Boegh’s job certainly supports the inference that Barber had some influence on that
decision.” DN 42 at p. 27. It is undisputed that Barber was actually aware of Plaintiff’s
protected activities. However, even considering the evidence in the light most favorable to
Plaintiff and assuming that Barber purposefully inserted a description of himself into the August
2005 bid proposal, Plaintiff has failed to put forth any evidence to show that this act influenced
Kelly’s decision not to hire Plaintiff. Kelly testified that there was no preconceived idea about
whether he would hire an existing Duratek employee, retain the existing landfill manager, or
conduct an open search for the position. Kelly Deposition, DN 40-4 at p. 12-13. Additionally,
Barber had not worked at the Plant since 2003 and was no longer a Duratek employee by the
time Kelly arrived at the Plant for the transition process in January 2006. Accordingly, there is
no genuine issue of material fact as to whether Kelly was influenced by Barber. Likewise,
because Plaintiff has put forth no evidence that the unidentified Duratek or PRS managers who
worked on the August 2005 bid influenced Kelly’s decision, there is no genuine issue of material
fact as to whether Kelly was influenced by these managers.
21
Next, Plaintiff contends that Corpstein influenced Kelly’s decision not to hire Plaintiff for
the landfill manager position. In support of this argument, Plaintiff points out that Corpstein was
Barber’s immediate supervisor, Corpstein attended a February 13, 2006 meeting wherein
Plaintiff raised leachate storage concerns, and Corpstein worked closely with Kelly. However,
besides indicating that Corpstein could have communicated with Kelly regarding Plaintiff’s
protected activities, Plaintiff has presented no evidence that Corpstein did communicate with
Kelly or otherwise influenced Kelly’s decision. Accordingly, there is no genuine issue of
material fact as to whether Kelly was influenced by Corpstein.
Plaintiff contends that LaBarge influenced Kelly’s decision not to hire him as the landfill
manager. LaBarge informed a DOL investigator that he remembered “a conversation early on
there were issues raised related to my understanding about dealing with Mr. Vander Boegh when
I got up there.” DN 48-50 at p. 10. LaBarge also testified that he knew of Plaintiff’s February
14, 2006 meeting with Razor and Spry through second-hand channels. Id. at p. 4. LaBarge was
also knew of Plaintiff’s stop work order on March 15, 2006 due to leachate concerns. Id. at p. 5.
However, Plaintiff has presented no evidence that LaBarge communicated with the Kelly
regarding Plaintiff’s protected activities or influenced Kelly’s decision in any manner.
Plaintiff next contends that PRS, specifically Razor and Spry, influenced Kelly’s decision
not to hire Plaintiff as the landfill manager. Although it is undisputed that PRS managers Razor
and Spry had actual knowledge of Plaintiff’s protected activities by mid-February, there is
insufficient evidence to show that PRS had substantial input into or influence over the decision
not to hire Plaintiff. First, Plaintiff has not presented evidence of any communication between
the PRS managers and Kelly. Instead, Plaintiff contends only that there is reason to infer the
PRS managers would have told Kelly. Second, even if PRS “allowed” Barber to work on the
22
August 2005 bid proposal, this cannot show that PRS influenced the decision not to hire
Plaintiff. Barber was not an employee of PRS. Additionally, there is insufficient evidence to
show that PRS was aware of Plaintiff’s protected activities in August 2005. In Plaintiff’s
February 2006 retaliation complaint, Plaintiff stated that: “On Tuesday, February 14, 2006, due
to my concerns that PRS officials were unaware of the unresolved 10 CFR 708 complaints and
the conflicting ‘Operator’ information, I decided to schedule a meeting with Mr. Razor.” DN 4864 at p. 3. Thus, “allowing” Barber to work on the August 2005 bid proposal does not show that
PRS influenced the decision. Further, approving and submitting the portion of the proposal
drafted by Barber and Duratek-Energy Solutions is consistent with PRS not having the
responsibility of choosing the landfill manager. Accordingly, Plaintiff cannot show that PRS
made the decision not to hire Plaintiff for the landfill manager position or that PRS influenced
the decision not to hire Plaintiff.
Finally, Plaintiff contends that BJC influenced Kelly’s decision not to hire him as the
landfill manager by interfering with Plaintiff’s ability to retain his position. As evidence of
BJC’s influence and interference, Plaintiff highlights the following evidence:
(1) BJC failed to timely transmit Plaintiff’s key disclosure statements to the
KDWM as the future landfill manager at the time of the anticipated 2006
contract transition.
(2) BJC failed to identify Plaintiff to PRS and Duratek as a grandfathered
employee, or an employee with the right of first refusal for the landfill
manager position.
(3) During the January to April 2006 transition period, BJC and PRS had several
meetings and it was likely that some of the BJC managers who worked with
PRS during this time were some of the people who had expressed
dissatisfaction or concerns about Plaintiff. Plaintiff further contends that
Kelly would have been involved in these transition meetings and would have
been aware of the fact that BJC was withholding Plaintiff’s key disclosure
statements.
23
(4) During the transition period, BJC personnel communicated false derogatory
information regarding Plaintiff to PRS and Duratek, including spreading false
rumors that Plaintiff’s security clearance was about to be rescinded and that
Plaintiff had a potential for work place violence.
(5) BJC attempted to coerce Plaintiff into a violation of the operational
requirements for accepting high volumes of waste without adequate available
operational personnel and falsely accused Plaintiff of not approving landfill
waste acceptance packages.
Plaintiff argues that these statements and acts would have been known by either Kelly or his
subordinates and would have influenced Kelly’s decision not to hire Plaintiff.
The Court finds that the evidence in the record does not support Plaintiff’s position that
BJC influenced Kelly’s decision not to hire him. With respect to Plaintiff’s allegation that BJC
failed to submit his key personnel disclosure statements to the KDWM, Plaintiff has not shown
that it was BJC’s responsibility to do so. WESKEM President John Krueger testified that he
alerted BJC to the fact that when you turn over landfill operations from one contractor to another
and there is a landfill manager change, a notification of the changes must be made to the KDWM
by law and that “somebody needs to tell PRS that they’ve got to make this notification . . . .”
Krueger Depo., DN 49-66 at p. 34-35. After raising the issue a second time to no avail, Krueger
stopped pressing the issue and was “under the impression that they would take care of it.” Id. at
p. 37. However, Krueger clarified that it was his impression that BJC felt it was not their job to
make the disclosures, but that it was the responsibility of the new operator coming in to take care
of the disclosure. Id. at p. 48-49. KRS § 224.40-330 expressly states that the “applicant” must
submit a disclosure statement prior to the issuance, renewal, or transfer of a permit for a solid
waste management facility. Thus, it was not BJC’s responsibility to submit the key personnel
disclosure statements. Additionally, Plaintiff has failed to present any evidence that BJC
somehow prevented PRS from filing the required disclosures.
24
Plaintiff next alleges that BJC failed to identify him as a grandfathered employee to PRS.
BJC has admitted that Plaintiff was a grandfathered employee during the 1998 contract transition
from Lockheed Martin to BJC. In the employee information list BJC provided to PRS, Plaintiff
is specifically identified as grandfathered (“GF”) for pension-related purposes. Schifferer
Declaration, DN 47-12 at p. 17. Kelli Schifferer, the former BJC Human Resource Manager and
the current custodian of BJC records relating to personnel and employee relations, stated that the
employee information list was provided to PRS on April 6, 2006. Schifferer Declaration, DN
47-12 at ¶ 5. Thus, BJC did inform PRS of Plaintiff’s grandfathered status. Nevertheless, this
does not necessarily mean that Plaintiff was a grandfathered employee under the contract
between the DOE and PRS. As proof that Plaintiff was a grandfathered employee under the
contract between the DOE and PRS, Plaintiff has presented a DOE letter concerning an
Employee Concern of another individual by the name of John Bobo. That letter states that, under
the PRS contract, employees are eligible to receive a preference in hiring for vacancies for nonmanagerial positions if they are grandfathered employees who are on the rolls of BJC’s first and
second tier subcontractors at the Paducah site at contract transition. DN 48-25 at p. 1. Even if
Plaintiff qualified as a grandfathered employee, it was not BJC’s responsibility to recognize this
right or to ensure that Duratek-Energy did so. Furthermore, even if PRS and Duratek-Energy
Solutions failed to recognize Plaintiff’s grandfathered status, their failure to do so has no bearing
on whether Kelly had knowledge of Plaintiff’s protected activities.
Plaintiff next alleges that BJC managers likely communicated about Plaintiff and his
protected activities during transitional meetings with PRS. However, such speculations cannot
defeat a motion for summary judgment. See Mulhall, 287 F.3d at 552. Plaintiff has not
identified or provided evidence of who may have had these alleged conversations, the topics of
25
such conversations, or when such conversations may have taken place. Furthermore, James
Kannard, an employee of Bechtel National, Inc. who temporarily performed services on BJC’s
behalf as the Project Site Manager at the Plaint during 2006, stated that BJC directed its
managers to refrain from discussing current site employees with the management of PRS or
Energy Solutions. Kannard Affidavit, DN 47-8 at ¶ 6. Accordingly, a trier of fact cannot infer
that these possible conversations influenced Kelly’s decision not to hire Plaintiff as the landfill
manager.
Plaintiff next alleges that workplace rumors spread by BJC influenced Kelly’s decision
not to hire Plaintiff. However, Plaintiff has presented no evidence that Kelly heard such rumors
or was aware of such rumors, or that the rumors influenced Kelly’s decision. Mr. Krueger, in
response to a question regarding his knowledge of derogatory remarks made about Plaintiff to
PRS or Duratek, responded that he did not know if that occurred. DN 49-66 at p. 47. When
asked whether anyone at BJC tried to influence PRS or Duratek in the hiring decisions for the
landfill manager position, Mr. Krueger testified that he did not know of any such occurrence and
that he did not find such an occurrence to be likely because BJC did not have a vested interest in
who became the landfill manager. Id. at p. 49. Accordingly, there is no evidence that rumors
regarding Plaintiff influenced Kelly’s decision.
Lastly, Plaintiff alleges that BJC attempted to coerce Plaintiff into a violation of the
operational requirements for accepting high volumes of waste without adequate available
operational personnel and falsely accused Plaintiff of not approving landfill waste acceptance
packages. However, Plaintiff does not explain how this alleged coercion influenced Kelly’s
decision not to hire him as the landfill manager. There is no evidence that Kelly knew of the
alleged coercion or accusations, or that he considered them in his decision. Accordingly, there is
26
no evidence that BJC’s alleged coercion or accusations regarding accepting waste influenced
Kelly’s decision not to hire Plaintiff.
In sum, Plaintiff has presented no evidence, other than speculations and conspiratorial
theories, to show that Kelly knew of Plaintiff’s protected activities or was influenced by others
with knowledge of his protected activities. Instead, the record suggests that Kelly independently
made the decision to offer the landfill manager position to Corpstein, an existing Duratek/Energy
Solutions employee, after working closely with him during the transition process. Because
Plaintiff cannot establish this essential element of a prima facie case of retaliation, Energy
Solutions is entitled to summary judgment on Plaintiff’s retaliation claims under the ERA, the
FCA, and the various environmental statutes. Accordingly, the Court need not address Energy
Solution’s argument that Plaintiff lacks standing to bring a retaliation claim under the FCA.
III. Paducah Remediation Services’ Motion for Summary Judgment
PRS contends that it is entitled to summary judgment because it was not involved in the
hiring process for the landfill manager position and took no action, direct or indirect, regarding
the landfill manager position. PRS additionally contends that there is no evidence to support a
finding that it was a joint employer of the landfill manager and therefore, it cannot be held liable
for any alleged discrimination regarding the decision of who to hire for the position. Finally,
PRS contends that it is entitled to summary judgment on Plaintiff’s FCA retaliation claim
because Plaintiff was not its employee. The Court previously determined that Plaintiff cannot
establish a prima facie case of retaliation against Energy Solutions because he has not presented
evidence from which a trier of fact could infer that Kelly had knowledge of his protected
activities. However, Plaintiff alternatively contends that PRS, which had actual knowledge of
his protected activities, made the decision not to hire Plaintiff.
27
PRS contends that it was the sole and exclusive responsibility of Energy Solutions to
determine who would fill the landfill manager position. In support of its argument that it had no
role in the decision not to hire Plaintiff, PRS points to the contract between it and DuratekEnergy Solutions, which provides, in part:
3. RESPONSIBILITIES
Duratek will complete all work assignments in accordance with the technical
direction provided by the PRS functional lead. It will be the sole responsibility of
Duratek to assign a project or program manager for each task, project or program
under which they are working. Duratek will communicate this to PRS prior to
initiating work on each assignment.
Affidavit of Brenda Jones, Subcontract, DN 46-2 at p. 9. Brenda Jones, who served as an
attorney for PRS, states in an affidavit that the landfill manager was an employee of Energy
Solutions, received all supervision and directions from Energy Solutions, and was paid by
Energy Solutions. DN 46-2.
In response, Plaintiff contends that PRS made the decision not to hire Plaintiff. As
evidence of that PRS made the decision, Plaintiff points to the following evidence:
(1) During his meeting with Razor and Spry of PRS, Plaintiff alleges that he
asked Razor how he would know when to file his job application for the
landfill manager position. According to Plaintiff, Razor responded by telling
him to watch the PRS job postings listed on the PRS website. Plaintiff
contends that, at this time, Razor did not disclaim that the decision as to who
would be hired as landfill manager would not be the decision of PRS and did
not refer Plaintiff to Duratek.
(2) PRS posted the landfill manager position on its website on March 14, 2006
and April 3, 2006. Plaintiff further clarifies that the position listed was a field
engineer position, under which Plaintiff claims the landfill manager position
would fall.8 Plaintiff applied for and was interviewed for this position.
8
The defendants dispute that this job listing was for the landfill manager position. When
Plaintiff interviewed for the position, he was told several times that it was not an interview for
the landfill manager position. According to LaBarge, who interviewed Plaintiff, Plaintiff
expressed that he was not interested in the field engineer position and was not responsive to
questions regarding the field engineer position. LaBarge DOL Interview, DN 48-50 at p. 9-10.
28
However, Plaintiff was told at the interview that it was not the landfill
manager position.
(3) PRS sent Key Personnel Disclosure Statements to the KDWM which
referenced that “Continuation or change in the certified Landfill Manager and
Landfill Operator will be addressed after hiring.” According to Plaintiff, this
is evidence that PRS considered itself the party responsible for making the
decision to hire a landfill manager.
(4) PRS’s name was on the landfill signs at the facility in April 2006.
(5) PRS allowed Barber to help draft the August 2005 PRS proposal in response
to the DOE’s RFP, approved the bid proposal, and submitted the bid proposal
to the DOE.
DN 48 at p. 18-19.
The evidence in the record is not sufficient to show that PRS was responsible for the
decision not to hire Plaintiff. The significance of landfill-related jobs being listed on PRS’s
website is severely undermined by the fact that, when Plaintiff interviewed for one such job, he
was interviewed by LaBarge, an employee of Duratek/Energy Solutions. No PRS employees
were present at the interview. LaBarge DOL Interview, DN 48-50 at p. 7. Furthermore,
LaBarge informed Plaintiff during this interview that it was not an interview for the landfill
manager position. According to LaBarge, the landfill manager position was not formally posted
through the PRS process. LaBarge DOL Interview, DN 48-50 at p. 4. Likewise, PRS’ Key
Personnel Disclosure statement to the KDWM is insufficient to show that it considered itself
responsible for hiring the landfill manager. The sentenced highlighted by Plaintiff does not state
that PRS itself would make the decision; instead, the sentence is consistent with Duratek/Energy
Solutions having the responsibility of making the decision.
Plaintiff cannot show that PRS made the decision not to hire him as the landfill manager.
Further, as discussed above, Plaintiff cannot show that PRS influenced or had substantial input
into the decision not to hire Plaintiff. Accordingly, there exist no genuine issue of material fact
29
and PRS is entitled to summary judgment on Plaintiff’s retaliation claims under the ERA, the
FCA, and the various environmental statutes. Accordingly, the Court need not address PRS’
argument that it is entitled to summary judgment on Plaintiff’s FCA retaliation claim.
IV. Bechtel Jacobs Company’s Motion for Summary Judgment
BJC contends that it is entitled to summary judgment on Plaintiff’s retaliation claims
because Plaintiff cannot establish a prima facie case of retaliation. BJC further contends that it is
entitled to summary judgment on Plaintiff’s FCA retaliation claim because Plaintiff was not a
BJC employee at the time of any retaliatory conduct. In response, Plaintiff contends that there
are genuine issues of material fact regarding BJC’s role in the decision as to who would serve as
the landfill manager after the 2006 contract transition and whether PRS-Duratek/Energy
Solutions would have failed to hire Plaintiff absent his protected activities and communications
from BJC to PRS about Plaintiff’s protected activities. The Court has already determined that
BJC did not influence or have substantial input into the decision not to hire Plaintiff as the
landfill manager. Accordingly, Plaintiff cannot establish a prima facie case of retaliation against
BJC and BJC is entitled to summary judgment on Plaintiff’s retaliation claims under the ERA,
the FCA, and the various environmental statutes. The Court therefore need not address BJC’s
argument that it is entitled to summary judgment on Plaintiff’s FCA retaliation claim.
CONCLUSION
For the foregoing reasons, Defendants Energy Solutions, PRS, and BJC are entitled to
summary judgment on Counts I, II, and III of Plaintiff’s complaint. Accordingly, Defendants’
motions for summary judgment (DN 39, DN 46, and DN 47) are GRANTED.
30
May 3, 2012
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