Kinser v. Bechtel Power Corporation et al

Filing 51

MEMORANDUM. An order shall enter signed by District Judge Curtis L Collier on 5/31/12. (JGK, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
CHARLES G. KINSER
Plaintiff,
v.
BECHTEL POWER CORPORATION and
SUN TECHNICAL SERVICES, INC.,
Defendants.

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1:10-CV-312
Collier/Lee

MEMORANDUM
Before the Court are motions for summary judgment filed by Defendants Bechtel Power
Corporation and Sun Technical Services, Inc. (“Bechtel” and “Sun Technical” respectively;
collectively “Defendants”) (Court File Nos. 44 & 46). Plaintiff Charles G. Kinser (“Plaintiff”)
responded (Court File No. 49), and Bechtel replied (Court File No. 50). For the following reasons,
the Court will GRANT the motions for summary judgment (Court File Nos. 44 & 46) and DISMISS
the case.

I.

FACTS AND PROCEDURAL HISTORY
The underlying facts giving rise to this case were stated in the Court’s earlier Memorandum

and Order granting in part Defendants’ motions to dismiss and for judgment on the pleadings (Court
File No. 30), and will not be repeated at length here. Briefly, the action concerns Defendants’
allegedly wrongful conduct following their termination of Plaintiff’s employment. Plaintiff has
worked in the nuclear industry for over two decades. In the spring of 2008, he was employed by Sun
Technical to work on a project at the Watts Bar nuclear facility, which is operated by the Tennessee

Valley Authority (“TVA”).1 At some point during Plaintiff’s employment, Bechtel conducted an
investigation into employees’ living allowances. Bechtel, apparently believing Plaintiff had
provided false information about his living expenses, fired him on May 28, 2009. Plaintiff was told
he was “being released due to an ongoing investigation by the [Inspector General’s] office” (Court
File No. 45-1, p. 27 [“Plaintiff’s Dep.”]). According to Plaintiff, at some point after he was
terminated, Defendants “reported in writing to persons maintaining Plaintiff’s security clearances,
including TVA, that Plaintiff had provided false information to his employer in order to obtain a
living allowance certification” (Court File No. 20, ¶ 10 [“Amended Complaint”]). These reports
allegedly resulted in Plaintiff’s nuclear security clearances being revoked, making him ineligible to
be hired by other potential employers in the nuclear industry. According to Plaintiff, these reports
were false. Consequently, Plaintiff sued Defendants for defamation, intentional interference with
business relationships (“IIBR”), and civil conspiracy.
Plaintiff’s lawsuit was filed on November 22, 2010, which is almost eighteen months after
he was fired by Defendants. All of Plaintiff’s claims are subject to a one-year statute of limitations.
Hence, Defendants filed motions to dismiss for untimeliness.2 Plaintiff’s response was twofold.
First, he relied on his initial complaint’s conspicuous omission of any dates related to the alleged
defamation – and his erroneous belief that he had no obligation to specify such dates – to conclude
untimeliness could not be established. Second, and more plausibly, he amended his complaint to

1

Sun Technical was a subcontractor for Bechtel, which is a prime contractor with TVA on
the Watts Bar project.
2

More precisely, Sun Technical filed a motion to dismiss (Court File No. 8), while Bechtel
filed a motion for judgment on the pleadings (Court File No. 13). The motions were, for all intents
and purposes, identical.
2

allege that regardless of when Defendant’s libelous conduct occurred, he did not discover libelous
communications had been made until one year, to the day, before filing suit.2 The Court granted
Defendants’ motions in part, dismissing the IIBR claim for failing to allege sufficient facts. With
regard to the remaining claims, the Court set a hearing on the single issue of whether Plaintiff’s
defamation and civil conspiracy claims are time-barred.
The main issue at the hearing, and in a round of post-hearing briefing, concerned whether
and to what extent Tennessee’s so-called “discovery rule” statute-of-limitations exception applies
in libel cases. In a nutshell, if the discovery rule does not apply to libel cases, Plaintiff’s case would
be untimely; if it does, Plaintiff’s case might be timely, depending on whether he satisfies the
conditions of the discovery rule. In a written memorandum and order entered June 29, 2011, the
Court concluded Tennessee’s discovery rule may apply in exceptionally rare instances where the
“secretive or inherently undiscoverable” nature of a libelous publication prevents a plaintiff from
knowing or discovering through use of reasonable diligence he had been defamed. See Leedom v.
Bell, 1997 WL 671918, *7 (Tenn. Ct. App. Oct. 29, 1997); Watson v. Fogolin, 2010 WL 1293797,
*4 (Tenn. Ct. App., Apr. 1, 2010). Unfortunately, this legal conclusion was insufficient to allow the
Court to rule on the timeliness of Plaintiff’s claims. As the Court explained:
The upshot . . . is this: as a theoretical matter, the discovery rule may apply in libel
actions; as a practical matter, it rarely does. This presents a difficulty for the Court
at the dismissal stage, for the Court must essentially determine whether a complaint
pleads a claim that is “plausible on its face” when it relies upon a doctrine that is
hardly ever applicable, that is to say, a doctrine whose invocation is typically
implausible. This difficulty is amplified by the discovery rule’s contingency on nonempirical facts (unlike the typical statute-of-limitations dispute), namely, whether

2

This suit was actually filed 367 days after Plaintiff allegedly discovered libelous
publications had been made; however, since days 365 and 366 were weekend days, the 367th day
is counted as the last day of the one-year limitations period.
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libelous documents were “inherently undiscoverable” and whether, regardless of the
date of actual discovery, a plaintiff could have earlier discovered the defamation with
reasonable diligence.
(Court File No. 39, pp. 3-4). Accordingly, the Court stayed the motions to dismiss and ordered a
period of limited discovery to focus exclusively on the questions of: 1) when in fact Plaintiff
discovered he had possibly been defamed via libelous publications; and 2) when, with reasonable
diligence, Plaintiff could have discovered he had been defamed. The facts which follow emerged
from this period of discovery.
Plaintiff has worked in the nuclear industry for over twenty years, at approximately eight
different nuclear facilities. In order to get onto a nuclear facility, one needs a security clearance
(Plaintiff’s Dep. p. 10). To get and hold such a clearance, in Plaintiff’s words, “[t]here’s a certain
lifestyle you have to maintain . . . [y]ou can’t have felonies, no DUI’s . . . nothing like that. There’s
a certain standard you have to live to and live by . . . [you must be] trustworthy” (id. at pp. 10-11).
In addition to site-specific security clearances, there is a nationwide computer database called “Plant
Access Data System,” or “PADS,” which all nuclear facilities in the country use to track and share
information related to security restrictions associated with individuals in the nuclear industry.
According to Plaintiff’s understanding, facilities use PADS to determine if there are any security
restrictions which should prevent a prospective employee from being cleared to access the facility
(id. at p. 12). Based on his lengthy experience in the nuclear industry, Plaintiff knew that if an
employee working at a nuclear facility were to be fired for some type of fraud, “it would probably
affect their clearance” because “fraud is a serious offense” (Plaintiff’s Dep. p. 29).3 At deposition,

3

Likewise, Plaintiff answered “yes” to the question “Based upon your 25 years’ experience
in the industry, in the nuclear industry, do issues related to honesty and trustworthiness and so on
affect one’s ability to gain clearance?” (Plaintiff’s Dep. p. 29).
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Plaintiff was “not surprised” at the notion a coworker had his security clearance revoked for
falsifying information on his resume, because “that would be lying” (id. at p. 32).
When Plaintiff began his employment for Defendants at the Watts Bar location, he signed
a form acknowledging Defendants would use PADS to access information about him and share
information about him with others in the nuclear industry.4 Additionally, Plaintiff expressly
“authorize[d] any . . . entity that now has, or obtains in the future, access-related information about
me . . ., whether or not such information is included in the PADS database, to release any such
information in order to perform the investigation and evaluation required for unescorted access,” and
further “authorize[d] the entry into the PADS computer database any information collected for the
purpose of . . . continued maintenance [of my application]” (Court File No. 45-2, p. 3). Finally,
Plaintiff signed to acknowledge his understanding that, “upon my written request to Bechtel, and
at no cost to me, I will be provided, within 10 working days, with a printed copy of the information
about me which is recorded in the database. If, after my review of such information, I can show that
any of the information is incorrect or incomplete, such information will be corrected . . . as soon as
is reasonably practical” (id.).
In March 2009 Plaintiff learned Bechtel was investigating the living allowances he had been
claiming (id. at p. 35). On May 28, 2009, Plaintiff was summoned to a meeting involving himself,
a Bechtel Human Resources representative, and Michael Lively, an “employee concerns”

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“I understand that the domestic commercial nuclear power industry uses . . . [PADS], to
share information necessary to process applications of workers for unescorted access to nuclear
power plants. . . . I understand that the information may be transferred, electronically or otherwise,
to other [nuclear power reactor] licensees and contractor/vendors or the agents of each. This
information will include, but is not limited to: . . . [d]ates when unescorted access has been
authorized or terminated” (Court File No. 45-2, p. 3).
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professional for Bechtel. At the meeting, Mr. Lively told Plaintiff he was being terminated
immediately “due to an ongoing investigation by the [Inspector General’s] office . . . [into] a living
allowance fraud” (id. at p. 27). At the time, it was “clear to [Plaintiff] . . . that the reason [his]
employment was coming to an end was related to th[e] living allowance issue” (id. at p. 37). At the
conclusion of the meeting, Plaintiff’s badge to access the Watt’s Bar plant was taken away (id. at
p. 23).
In the months that followed, Plaintiff “had a suspicion” information might have been
conveyed to TVA which was negatively affecting his nuclear security clearance (id. at pp. 22-23).
During the summer of 2009 Plaintiff applied for roughly a dozen jobs, but “was getting no response”
(id. at p. 23). This was quite unusual for Plaintiff. In the past he had always had no trouble getting
a job at a nuclear facility when he wanted one – “If I needed a job or wanted to go to a certain job,
for years I’d submit a resume. And if I want to go there, accept the pay or whatever it is, it was
always kind of automatic” (id. at p. 24). As early as July 2009, Plaintiff was concerned there might
be a flag on his name in PADS.5 Then, in August 2009, a prospective employer finally got back to
Plaintiff instead of rejecting him without explanation, and alerted Plaintiff “that he had checked
PADS, and there was definitely something out there . . . a restriction out there in PADS” (id. at p.

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Q: Back in July of 2009, when you called Bechtel, it sounds like you
were concerned enough about this to call Bechtel about it; is that fair
to say?
A: Yes.
Q: And you were concerned in July of 2009 that there could be a flag in
PADS about you; is that right?
A: Could be. (Plaintiff’s Dep. pp. 44-45).
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25).6 Plaintiff knew the “flag” must be related to his May 2009 termination, since he had never had
any other adverse employment situations.7
Subsequently, Plaintiff attempted to find out more information about the “flag” on his record
in PADS, and to remedy the situation. On November 13, 2009, Plaintiff sent an e-mail to Charles
Woodle, a TVA official. In this e-mail, Plaintiff stated “[l]ast week I was advised by a potential
employer that THERE IS something popping up on my security file. . . . It has been 5 ½ months
since I was ‘released due to an ongoing investigation.’ And I cannot get any answers today. . . .
How can Bechtel RUIN me without telling me WHY?” (Court File No. 45-5). Again, “[Plaintiff]
understood on November 13th that whatever this was that was popping up [on his security file] . .
. was something related to [his] termination on May 28th” (Plaintiff’s Dep. p. 50).
One week later, on November 20, 2009, Plaintiff allegedly received from TVA a
misaddressed letter originally sent to him on August 5, 2009. This letter informed Plaintiff “that

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An internal Bechtel e-mail indicates Plaintiff spoke with a Bechtel representative in early
July 2009 to inquire about “the flag in PADS” (Court File No. 45-4, p. 1). However, Plaintiff
contends this document is hearsay and does not satisfy the business records exception. Because this
document is not essential to the Court’s disposition of the case, and resolving the dispute might
require a hearing on the nature of Defendants’ keeping of business records, the Court disregards this
document.
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Q: And as you understood it, that flag was related to your previous
employment at Watts Bar?
A: Yes.
Q: Okay. Because you had never been fired before by any other nuclear employer;
right?
A: No.
Q: Never been convicted of any crime or pulled over for DUI or anything like that?
A: No.
Q: And so it’s fair to say in August of 2009 the only reason a flag could have been
in PADS, to your knowledge, related to these events in May of 2009?
[Plaintiff’s Counsel]: Object to the form.
A: Yes. (Plaintiff’s Dep. p. 45).
7

your unescorted access authorization was denied on July 31, 2009 due to providing false information
to your employer in order to obtain a living allowance certification” (Court File No. 48-3, p. 2). One
year, to the day, after allegedly receiving this letter, Plaintiff filed the instant lawsuit.

II.

STANDARD OF REVIEW
Summary judgment is proper if the movant shows, based on the materials in the record, “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). First, the moving party must demonstrate no genuine issue of
material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349
F.3d 888, 897 (6th Cir. 2003). The Court views the evidence, including all reasonable inferences,
in the light most favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th
Cir. 2001). However, the non-movant is not entitled to a trial based solely on its allegations, but
must submit significant probative evidence to support its claims. Celotex, 477 U.S. at 324; McLean
v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Should the non-movant fail to provide
evidence to support an essential element of its case, the movant can meet its burden of demonstrating
no genuine issue of material fact exists by pointing out such failure to the court. Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
The moving party is entitled to summary judgment if the non-movant fails to make a
sufficient showing on an essential element for which it bears the burden of proof. Celotex, 477 U.S.
at 323. In short, if the Court concludes a fair-minded jury could not return a verdict in favor of the
non-movant based on the record, the Court may enter summary judgment. Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 251-52 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.
1994).

III.

ANALYSIS
After reviewing the parties’ briefs and evidence, the Court concludes more than a year before

filing this action Plaintiff either knew, or could have discovered through the use of reasonable
diligence, sufficient information that would put him on notice of a possible defamation claim against
Defendants.8 Accordingly, the discovery rule does not save Plaintiff’s case from the statute of
limitations, and the Court will dismiss the case as untimely brought.
Ample, uncontroverted evidence shows Defendant knew there was a “flag” on his PADS
security file well before his purported “discovery” date of November 20, 2009. Even ignoring the
contested July 2009 internal Bechtel e-mail, Plaintiff clearly knew of the “flag” by August 2009,
when a prospective employer told him “there was definitely something out there . . . a restriction out
there in PADS” (Plaintiff’s Dep. p. 25). And even ignoring this evidence, Plaintiff’s November 13,
2009 e-mail, stating “[l]ast week I was advised by a potential employer that THERE IS something
popping up on my security file” indicates that, at the very least, he knew there was a “flag” on his
security file over a week before November 20, 2009. Not only did Plaintiff know there was a “flag”
on his PADS security file, he understood it was related to his May 28, 2009 termination – indeed,
it was “the only reason a flag could have been in PADS” (id. at p. 45).
In his summary judgment brief, Plaintiff does not deny he discovered there was a “flag” in

8

The Court says “possible defamation claim” simply because the Court takes no view as to
whether Plaintiff’s defamation claim stands any chance of success on the merits.
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PADS prior to November 20, 2009, or that he understood it was related to his May 2009 termination.
Rather, Plaintiff claims “he did not know anything about the content of those communications [by
Defendants to TVA]” which resulted in the “flag” being placed (Court File No. 49, pp. 5-6
[“Plaintiff’s Brief”]); that is, he did not know Defendants had represented to TVA he had
“provid[ed] false information to your employer in order to obtain a living allowance certification,”
as the letter allegedly received from TVA on November 20, 2009 stated (Court File No. 48-3, p. 2).
According to Plaintiff, prior to receiving the letter, he knew he had been terminated “due to an
ongoing investigation” into living allowance fraud, but he had no idea he was suspected of engaging
in living allowance fraud. As best the Court can understand it, Plaintiff thought his termination was
somehow “collateral damage” of the investigation, free of any unfavorable implication he himself
had engaged in living allowance fraud or related wrongful conduct. It was not until he received the
letter on November 20, 2009 that he finally deduced the flag on his PADS file – which he had
known for months had been placed there as a result of his termination by Defendants for reasons
relating to living allowance fraud – was there because Defendants thought he had committed it.
The Court finds this position incredible, as would any reasonable juror. The distinction
between an employee being fired because of “an ongoing investigation” into living allowance fraud
and because he is thought to have committed such fraud is one in search of a difference. As early
as March 2009, Plaintiff knew Bechtel was investigating his claimed living allowances. When he
was called into a meeting with human resources personnel on May 28, 2009 and told he was being
terminated because of an “ongoing investigation” into living allowance fraud there could be only
one reasonable conclusion: Defendants believed he had committed living allowance fraud. That the
investigation was “ongoing” might imply others besides Plaintiff were suspected of fraud, but it

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would not suggest Plaintiff’s termination was for any reason other than fraud. It would make no
sense for an employer to fire an employee because of an “ongoing investigation” into wrongful
activity if the employer did not believe the employee had engaged in the activity. Any reasonable
employee facing such a termination would understand this; no reasonable juror would find
otherwise.
Given Plaintiff’s lengthy experience in the nuclear industry, he should have known
Defendants would report the nature of his termination to those maintaining his security clearances,
including TVA at whose facility he had been working. Plaintiff admittedly knew that if an employee
working at a nuclear facility were to be fired for some type of fraud, “it would probably affect their
clearance” (Plaintiff’s Dep. p. 29). Since Plaintiff knew or should have known he was fired for
fraud, by his own admission he should have known this would be reported and affect his clearance.
Not only that, but when he began his employment with Defendants, he signed a form acknowledging
Defendants would use PADS to share information about him with others in the nuclear industry, and
expressly authorizing Defendants to release such information. It should therefore have been
eminently foreseeable to Plaintiff at the time of his termination that Defendants would report the
termination to others in the nuclear industry, including TVA.
By the time Defendant realized a “flag” had in fact been placed on his PADS security file,
the foreseeable should have, and must have, become the obvious. Plaintiff admittedly understood
the “flag” was a result of his termination by Defendants. To cause the “flag” to be placed,
Defendants must necessarily have communicated something. Given the Court’s earlier conclusion
Plaintiff must have known he was terminated as a result of Defendants’ judgment he had engaged
in living allowance fraud – not simply as the judgment-free result of an “ongoing investigation” –

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Plaintiff knew or should have known the something that was communicated was Defendant’s belief
he had engaged in living allowance fraud. It is immaterial whether Plaintiff knew the precise
verbiage Defendants used to communicate the nature of his termination; indeed, even the November
20, 2009 letter which Plaintiff claims started the limitations period running does not disclose the
precise verbiage Defendants used to disclose the nature of his termination to TVA.9 Plaintiff knew
or should have known he was terminated because Defendants believed he had engaged in fraud,
knew termination for fraud would affect one’s clearance, knew the “flag” was caused by his
termination, and knew Defendants had caused the flag to be placed.10 It is simply untenable to
maintain, in the face of all this knowledge, that until he received the November 20, 2009 letter
Plaintiff somehow remained ignorant of the fact Defendants had reported the nature of his
termination.
In short, this case is not among “that limited class of libel cases which, because of the
secretive or inherently undiscoverable nature of the publication, the plaintiff did not know, or with
reasonable diligence could not have discovered, that he had been defamed.” Leedom, 1997 WL
671918, at *7. The issuance of the allegedly-defamatory communication should have been
foreseeable to Plaintiff as soon as he was told he was being fired because of an “ongoing

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For that matter, the letter does not mention Bechtel or Sun Technical at all, or reference any
communication made by them to TVA. It simply states Plaintiff was not being issued an unescorted
access authorization because he had provided false living allowance information to an employer in
the past. From this letter Plaintiff is drawing the inference Defendants must have communicated the
nature of his termination; however the same inference fairly arises simply from the fact that, as
Plaintiff knew, there was a “flag” on his PADS file which was the result of his termination by
Defendants – a termination which, as discussed above, Plaintiff must reasonably have known was
due to Defendants’ belief he engaged in living allowance fraud.
10

Indeed, in his November 13, 2009 e-mail discussing the “flag” he accuses Bechtel is
“ruining” him.
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investigation” into living allowance fraud. Once he realized there was a “flag” on his PADS file
caused by his termination, by any reasonable accounting Plaintiff must have known, or at least
should have known, Defendants had reported the nature of his termination to relevant nuclear
industry entities, including TVA.11 If Plaintiff believed that reporting to have been untrue, he could
have brought a defamation action at that time.
The Court finds that more than one year before filing this case Plaintiff knew, or with
reasonable diligence could have discovered, he had been allegedly defamed. This is therefore not
one of the exceptionally rare libel cases where Tennessee’s discovery rule operates to toll the statute
of limitations. Because the case is untimely brought, Defendants are entitled to summary judgment.

IV.

CONCLUSION
For the reasons stated above, the Court will GRANT Defendant’s motions for summary

Judgment (Court File Nos. 44 & 46), and will DISMISS the case.
An Order shall enter.

/s/
CURTIS L. COLLIER
CHIEF UNITED STATES DISTRICT JUDGE

11

Even charitably assuming he did not know this, he could have discovered it with reasonable
diligence. Per the form Plaintiff signed upon beginning employment, at any time he could have seen
the information about him in PADS simply by requesting it in writing from Bechtel.
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