ANN D. MONTGOMERY, District Judge.
On January 19, 2016, the undersigned United States District Judge heard oral argument on Defendant Plant Engineering Services, LLC's ("PES") Motion for Summary Judgment [Docket No. 26]. Plaintiff Ralph Mervine's ("Mervine") Complaint [Docket No. 1-1] asserts a single cause of action for an alleged violation of the Minnesota Whistleblower Act, Minn. Stat. § 181.932. For the reasons set forth below, PES' Motion is granted.
PES provides multi-disciplined engineering, project management services, and start-up support services to clients throughout the country. Kreuiter Decl. [Docket No. 30] ¶ 2. PES is a subcontractor to Fluor, Inc. ("Fluor"), which agreed to provide engineering services to Flint Hills Resources ("Flint Hills"). Pl's. Index Exs. [Docket No. 38] ("Dep. Trs.") Attach. 5 ("Hicks Dep.") 7:19-23. PES has provided engineering services under this agreement to Flint Hills' Pine Bend refinery in Rosemount, Minnesota, since 2008.
Under the contract, PES determined the base compensation of its employees. The contract further provided for a preapproved mark-up that PES would bill Flint Hills for each hour a PES employee worked. Dep. Trs. Attach. 4 ("Kern Dep.") 49:4-9. If, for example, the employee's base compensation was $20 an hour and the preapproved markup was 60%, then PES would bill Flint Hills $32 an hour for that employee.
PES evaluated its employees' salaries on an annual basis both to ensure that their compensation was competitive and to determine if a salary increase was merited. Dep. Trs. Attach. 8 ("Picou Dep.") 79:21-25. If PES decided to raise employees' salaries, it negotiated with Flint Hills for an increase in the bill rate to account for the salary increase.
Mervine, a professional engineer with over 25 years' experience working on engineering projects, began working for PES in May 2012. Dep. Trs. Attach. 1 ("Mervine Dep.") 91:1-7. Mervine first worked as a project manager at an Alcoa plant in New York.
In January 2013, to pursue the opportunity in Minnesota, Mervine met with his PES supervisor, Chris Henry, and with Bill Hicks, the PES employee who managed the Flint Hills contract.
In April 2013, Mervine accepted the site manager position in Minnesota. Mervine Dep: 118:9-12. Mervine, the seventh site manager at the Flint Hills facility in the prior fifteen years, was immediately responsible for supervising over 62 employees managing around 225 projects per year.
Mervine's initial supervisors in Rosemount were Henry and Hicks.
Mervine understood his initial assignment was to keep Hicks happy. Mervine Dep. 141:15-16. Mervine's first few months as site manager were successful; PES and Flint Hills were each satisfied with Mervine's performance.
The first documented issue concerning Mervine's PES employment appeared in late 2013. During a November 2013 client meeting, Shaina Botka, a PES project manager who reported directly to Mervine, "blew up" over Flint Hills' changes to the project schedule Botka proposed.
After a December 2013 meeting, Mervine received an email from Botka. Kreuiter Decl. [Docket No. 30] Ex. A. In the December 13 email, Botka claims Mervine told her and another employee that Mervine needed to "clean house" and that he could fire both employees.
Despite the tension with Botka, Mervine's December 2013 performance review was positive and Flint Hills remained satisfied with Mervine's job performance. Ciano Decl. Ex. 2; Kern Dep. 24:19-25. In January 2014, Mervine received a raise and a promotion. Ciano Decl. Ex. 3. Nevertheless, Mervine's relationship with Botka remained strained. In a January 23, 2014 email Mervine wrote to Kreuiter, Mervine stated that Botka had completely stopped communicating with him.
In December 2013, PES started planning for its annual rate negotiation with Flint Hills. Kreuiter Decl. ¶ 7. PES decided to seek reimbursement for past wage increases that Flint Hills had not covered. PES also discussed seeking reimbursements for quarterly bonuses PES had been paying some employees since 2009.
Mervine was assigned to figure out how PES could capture the quarterly bonuses. In an email, Mervine wrote that he was "not aware of a way to pass the Quarterly bonus to Flint Hills reinbursable [sic] by increasing employee salary." Ciano Decl. Ex. 3. In that same email Mervine stated that Hicks and Cathy Robinson, a project control specialist who worked in financial services, agreed.
On January 28, 2014, Mervine, Hicks, Picou, Kreuiter, and Michael Sullivan, a PES employee from financial services, had a conference call to discuss asking Flint Hills for a rate increase to cover the quarterly bonuses.
Picou took offense to Mervine's comments, later describing his response as an "outburst." Picou Dep. 91:24-25. A few days after the conference call, Hicks arrived for the company holiday party and Mervine drove him from the airport. Mervine Dep. 283:12-17. Hicks knew that Picou was upset at Mervine for what transpired on the conference call, telling Mervine that "it will be a long time before [Picou] gets over that one."
On or about February 3, 2014, Mervine met with Robinson and told her what happened. Mervine told Robinson that he "was in the doghouse with [Picou]." Robinson Dep. 34:9-12. Mervine claims Robinson agreed that what Picou was asking him to do was illegal. Mervine Dep. 296:7-10. That same day, Picou phoned Mervine to apologize. Picou Dep. 91:22-24. After apologizing for his reaction, Picou reiterated that he did not appreciate having his ethics challenged, telling Mervine that he did not correctly understand what he was being requested to do and that the two of them should get together to clarify how the Flint Hills billing and financials worked.
During the morning of January 28, 2014, the same day as the conference call, PES Senior Project Engineer Rick Panzer emailed Kreuiter and requested a chance to talk about "a situation." Kreuiter Decl. Ex. D. The following morning, Kreuiter emailed Panzer, thanked him for passing along his concerns, and told him that a "dialogue with management" had been opened.
On January 29, 2014, Kreuiter received an email from Botka. Weiner Decl. [Docket No. 29] Ex. 2 at Ex. 8. Botka wrote that she was nervous about her job and that she was struggling to stay full time because she had not been getting new work.
On January 30, 2014, before Kreuiter received Botka's detailed email, Kreuiter forwarded Panzer's email to Hicks and Picou. Kreuiter Decl. Ex. E. While Kreuiter did not share the identity of the email sender, Kreuiter related "[t]he person that sent this note is a long time Pine Bend employee who I feel confident that he'd have no reason to make any of this up."
On February 4, 2014, the day after receiving Botka's email specifically describing what she called unprofessional conduct by Mervine, Kreuiter received an email from Charles Sandiford, a PES Piping Designer. Kreuiter Decl. Ex. G. Sandiford described an encounter he had with Mervine in the parking lot as he was leaving work on February 3.
Later that same day, Kreuiter received an email from David Mannello, a Piping and Mechanical Design Supervisor with PES.
On February 12, 2014, Kreuiter received an email from PES mechanical engineering lead Robert Dunlop. Kreuiter Decl. Ex. I. Dunlop complained about being the "front man" for emotional issues that Mervine will not handle himself.
Kreuiter was dispatched to the Flint Hills site to investigate the merits of the employee complaints. Prior to Kreuiter's departure, Picou sent Hicks an email stating that "[d]ue to the nature of some of the issues, we may not be able to take corrective action through coaching, mentoring, or disciplinary actions." Ciano Decl. Ex. 15. Picou further stated that they should start "considering the worst case scenario," meaning "a change in site leadership," and that they should "start thinking of potential candidates."
On Friday, February 14, 2014, before Kreuiter arrived at the Flint Hills site, Don Kern, Flint Hills' Engineering and Facilities Manager, was anonymously telephoned and told to Google Mervine's name. Kern Dep. 35:21-23. Kern did so and discovered reports of Mervine being connected with pornography.
In his deposition, Hicks stated that Flint Hills decided to ban Mervine from its Rosemount facility after learning about the purported pornography connection. Hicks Dep. 58:4-10. Kern denied it was Flint Hills who prevented Mervine from accessing the job site, claiming that since Mervine was an employee of PES, it was up to PES to determine how to handle it. Kern Dep. 33:16-20; 37:23-28:3. Mervine testified that Kreuiter told him that he was not permitted at the Flint Hills site the following Monday and Tuesday, February 17 and 18. Mervine Dep. 338:20-24. Mervine understood his suspension was related to Kreuiter's interviews and that Mervine was not to be on site while the interviews occurred.
Kreuiter traveled to Minnesota and began his site interviews on February 17, 2014. Kreuiter Dep. 49:22-25. Kreuiter spoke with managers, supervisors, and other employees who had expressed concerns about the site.
Kreuiter summarized the interviews in a report, and takeaway points from each interview were noted.
Shortly after concluding the interviews, Kreuiter give Mervine an opportunity to discuss some of the allegations that were raised against him. Kreuiter Dep. 86:22-87:5. Mervine denied most the allegations Kreuiter mentioned. Ciano Decl. Ex. 10. Mervine denied expressing a desire to fire Botka or making any threat to her job.
Despite Mervine's denials, Kreuiter determined that it was reasonable to conclude that the unprofessional conduct raised during the employee interviews likely had occurred. Kreuiter Dep. 90:14-22. Kreuiter credited the employees over Mervine because
Kreuited Decl. ¶ 16. Kreuiter advised Picou of his findings. Kreuiter Dep. 84:12-23.
The employee interviews, coupled with prior complaints about Mervine, led PES management to conclude that Mervine was "no longer fit to remain as site manager due to unsatisfactory job performance as site manager." Ciano Decl. Ex. 16. In justifying this decision, PES cited Mervine's "retaliatory activities, hostile work environment and degradation of leadership ability. Additionally, general professional behavior was lacking due to profanity, falling asleep in meetings and inappropriate sharing of information."
On February 20, 2014, Mervine's employment with PES was terminated. Picou, in consultation with the human resources personnel, made the decision to end Mervine's employment. Picou Dep. 131:18-23. The reason for termination was the complaints identified in Kreuiter's investigation.
Mervine's lawsuit contends that his termination was retaliatory, and that the true motivation was his telling Picou on the January 28, 2014 conference call that what Picou wanted him to do was illegal.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be rendered if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
The United States Supreme Court, in construing Federal Rule 56(c), stated in
On a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party.
If evidence sufficient to permit a reasonable jury to return a verdict in favor of the nonmoving party has been presented, summary judgment is inappropriate.
The Minnesota Whistleblower Act ("MWA") prohibits an employer from retaliating against an employee who, "in good faith," "reports a violation, suspected violation, or planned violation of any federal or state law or common law or rule adopted pursuant to law to an employer. . . ." Minn. Stat. § 181.932 subd. 1(1). Mervine has no direct evidence of retaliation, thus he argues that the viability of his MWA claim uses the burden shifting framework announced in
PES argues that Mervine has failed to meet his initial burden to prove a prima facie MWA case of protected activity and causation. PES also argues that, even if Mervine met his initial prima facie burden, summary judgment is warranted because Mervine failed to show that PES' stated decision to terminate Mervine's employment was pretextual. Because summary judgment will be granted on the lack of evidence of causal connection and pretext, protected activity will not be discussed here.
PES argues that Mervine cannot establish a triable issue of fact on the causal connection between his purported protected activity and his termination. Mervine must prove that his termination was causally connected to the January 28, 2014 conference call during which he told Picou that trying to collect the quarterly bonuses from Flint Hills was illegal.
PES argues that Mervine relies merely on the temporal proximity between the two events as evidence of a causal connection. PES concludes that the amount of time between the January 28, 2014 conference call and his February 20, 2014 termination — approximately three weeks — is insufficient to satisfy this element. Although, Mervine, in response, does not dispute PES' depiction of the proximity between the two critical events, he does dispute PES' conclusion that a three week lag between the two acts is insufficient to establish this element. He contends that the duration between the conference call and his termination supports an inference of causation precluding summary judgment on this issue.
"Generally, more than a temporal connection between the protected conduct and the adverse employment action is required to present a genuine factual issue on retaliation."
As PES correctly observes, no bright line has been established for when the connection between the protected activity and adverse action becomes too attenuated to support the causation requirement. The Eighth Circuit has stated that "[t]he timing of an adverse employment action in connection with the protected activity `can sometime establish causation for purpose of establishing a prima facie case.'"
The caselaw also recognizes that intervening unprotected conduct can erode the causal connection between the two key events.
PES advocates for a similar result here, arguing that the motivation for investigating Mervine materialized prior to any protected activity and was supplemented by further allegations of misconduct made after the January 28, 2014 conference call. Mervine, in response, disagrees that the inference of causation is impaired by intervening events. Mervine argues that although PES received knowledge of employee complaints about Mervine as early as June 2013, it did nothing until after the conference call, suggesting that the investigation was motivated by his statements during the conference call. Mervine additionally argues that employee complaints at the Flint Hills facility were common, pointing out that Botka's December 2013 complaint about Mervine to human resources did not spur PES to investigate further. It was not until after the conference call, Mervine continues, that PES decided to undertake its formal investigation, indicating that the true motivation for the investigation and subsequent termination was Mervine challenging Picou on the conference call.
Mervine's argument suffers from two defects. First, even if Mervine's depiction of the events is credited and Kreuiter was not aware of Panzer's concerns about Mervine until after the conference call, it was Hicks, not Picou, who directed Kreuiter to begin his investigation.
Second, and more importantly, PES received at least four complaints from employees after the conference call, with three of the complaints citing encounters with Mervine that occurred after January 28, 2014: 1) Botka's February 3 email referencing specific issues with Mervine, noting that he had crossed a professional boundary; 2) Sandiford's February 4 email expressing his feelings of disrespect by Mervine's inquiries into him not attending the company holiday party; 3) Mannello's February 4 email attesting to Sandiford's frustration and further stating that he has never been subjected to the nonsense that was going on at the Flint Hills facility on a daily basis; and 4) Dunlop's frustrations about work assignments and being used as a front person to resolve issues Mervine himself did not want to handle.
Mervine attempts to distinguish
The record also includes PES employee complaints about Mervine stemming from incidents that took place after the purported protected activity. In addition, the 22 interviews that occurred after the call both corroborated the earlier complaints and raised new areas of concern about Mervine's professionalism. This is not a case where one minor incident is situated between the bookends of protected activity and termination. Rather, this is a case where multiple accusations of misconduct were later repeated by, and expanded upon, by nearly two dozen employees. This is sufficient to conclude, as a matter of law, that Mervine has not met his prima facie burden as to the causal connection between the protected activity and termination.
Mervine's MWA claim also fails because he has not presented sufficient evidence for a reasonable fact finder to conclude that PES' stated justification for terminating his employment was a pretext for illegal retaliation. Mervine raises three arguments in an effort to avoid this conclusion. First, Mervine argues that his favorable performance review in December 2013 followed closely by his February 20, 2014 termination for poor performance suggests that the true justification for his termination was his protected activity, not, as PES claims, the misconduct complained of by other employees. Second, Mervine contends that PES failed to follow its own procedures, particularly in comparison to how PES managed and coached Mervine's predecessor, Rich Salisbury, through accusations of poor performance. Finally, Mervine argues that the person who decided to terminate his employment, Picou, and the person whose interviews informed that decision, Kreuiter, were unable to recall the specifics of the employee complaints, belying PES' proffered justification.
"Proof of pretext requires more substantial evidence than a prima facie case because unlike evidence establishing a prima facie case, evidence of pretext . . . [and retaliation] is viewed in light of the employer's justification."
Picou's December 2013 positive review of Mervine's performance is an insufficient indicia of pretext because, as mentioned above, Picou had no knowledge of the employee complaints at the time he reviewed Mervine's performance. There is nothing in the record to support that Picou's favorable review was rendered with awareness of the allegations of fellow PES employees about Mervine, making Mervine's citation to
As to Mervine's second argument, that he was treated differently than Salisbury, it too lacks force. While Salisbury was given coaching in an effort to enable him to meet Flint Hills' expectations, the issues that marked Salisbury are very divergent from Mervine's issues.
Finally, Mervine's argument questioning the specifics of the employee complaints also does not defeat summary judgment. While Mervine stresses that Flint Hills never complained about Mervine sleeping in meetings — ostensibly to discredit the complaining employees' allegations — Mervine seemingly ignores the other accusations that were levied against him by multiple employees that were independently corroborated by Kreuiter's investigation.
Based on the foregoing, and all the files, records and proceedings herein,
