Sixth Circuit Finds Potential Whistleblower Claim From Hiring Manager’s Unusual Hiring Practices

Last month, the Sixth Circuit Court of Appeals reversed a summary judgment entered in favor of an employer on a whistleblower claim brought under a variety of federal environmental statutes by the employee of a predecessor contractor on a federal project.  Vander Boegh v. EnergySolutions, Inc. No. 12-5643 (6^th Cir. 8-14-13).  The plaintiff had filed a number of whistleblower claims against his current employer and, after the federal contract was awarded to a new contractor (i.e., the defendant employer), filed additional whistleblower claims with the Department of Energy during the transition of the contract when it appeared that he would not be retained in the job he had held for more than 20 years.  The Court rejected most of the arguments brought by the non-hired landfill manager.  However, it found the hiring manager’s behavior to be suspicious when he never posted the job, hired a non-certified individual to be the new landfill manager, conducted no interviews and never considered the plaintiff.  Despite the hiring manager’s protestations to the contrary, the Court found it unlikely that he had not independently discovered from the DOE’s website as part of his assigned “due diligence”  that the plaintiff had already filed whistleblower claims before the hiring decision was made.  Accordingly, it concluded that this suspicious behavior was sufficient for a jury to conclude that the plaintiff was not hired in retaliation for his protected conduct.  However, the Court also directed the District Court to consider on remand whether the hiring manager was the “cat’s paw” for his subordinates who possessed actual knowledge of the plaintiff’s behavior and whether the plaintiff even had standing to assert a claim under the Federal Claims Act when he had never been employed by the defendant employer.

A DOE hearing officer had found one of the plaintiff’s whistleblower claims of retaliation to be well-founded and ordered his then-employer to maintain his employment for at least a year.  His claims still had not been resolved by the time a new contractor was selected to manage the project.  When he suspected that he was not going to be hired by the new employer (who had already hired a former supervisor who had retaliated against him in the past), he filed new whistleblower claims, which were eventually brought in federal court. 

The Court found that these claims are adjudicated much the same as retaliation claims brought under other federal employment laws.

“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.” Sasse v. U.S. Dep’t of Labor, 409 F.3d 773, 779 (6th Cir. 2005). In general, a prima facie case of retaliation requires the plaintiff to show that (1) he engaged in protected activity; (2) the employer had knowledge of the protected activity; (3) he suffered an adverse employment action; and (4) a causal connection existed between the protected activity and the adverse employment action.  . . . Similarly, the ERA requires the plaintiff to demonstrate that (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) the protected activity was a “contributing factor” in the adverse employment action. 42 U.S.C. § 5851(b)(3)(C).

One of the plaintiff’s claims involved his former supervisor preparing the bid for the new contractor and submitting his own qualifications for landfill manager in place of the plaintiff.   The Court found this to be a sufficient adverse action for purposes of a retaliation claim:

Actionable retaliation is not limited to so-called “ultimate employment decisions” that adversely alter the terms and conditions of employment. Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 64, 67 (2006) (“A provision limited to employment-related actions would not deter the many forms that effective retaliation can take.”). Rather, an adverse employment action in the retaliation context requires a showing “that a reasonable employee would have found the challenged action materially adverse, which . . . means it well might have dissuaded a reasonable worker from [engaging in protected activity].”

 As with regular employment retaliation claims, the decisionmaker’s knowledge at the time of the decision is paramount. 

“The decisionmaker’s knowledge of the protected activity is an essential element of the prima facie case of unlawful retaliation.” Frazier v. USF Holland, Inc., 250 F. App’x 142, 148 (6th Cir. 2007) (citing Mulhall v. Ashcroft, 287 F.3d 543, 551 (6th Cir. 2002)). Actual knowledge can be established through direct evidence that the decisionmaker knew of the protected activity or through circumstantial evidence from which a reasonable jury could infer that the decisionmaker knew of the protected activity. Mulhall, 287 F.3d at 552–53. A decisionmaker’s disavowal of knowledge may be rebutted with countervailing evidence. See Lippert v. Cmty. Bank, Inc., 438 F.3d 1275, 1282 (11th Cir. 2006).

The Court rejected the plaintiff’s attempts to postpone the date of the decision until after he had hard evidence of the decisionmaker’s knowledge. Nonetheless, this was not fatal to his claim.  The Plaintiff argued that “an employer’s failure to follow its normal procedure can provide circumstantial evidence of a retaliatory motive and, thus, actual knowledge of protected activity. See DeFord v. Sec’y of Labor, 700 F.2d 281, 287 (6th Cir. 1983).”  In particular, he argued that the fact that he was not grandfathered like other employees was evidence of unusual procedures.  However, “[o]nly “non-managerial” employees are considered “grandfathered” under the contract, and the landfill manager position is specifically denoted as “managerial.”

 Nonetheless, other circumstantial evidence supported the Plaintiff’s claim of retaliation.  He

filed a complaint with DOE on February 21, 2006, and another on February 24, 2006. These complaints were readily available on DOE’s website. Further, [the decisionmaker] was responsible for overseeing the transition of landfill operations and managing “due diligence” during the transition period, specifically in the area of material disposition. Despite his due diligence responsibility, [the decisionmaker] declined to so much as interview [the plaintiff], who has well over a decade of experience as a certified landfill manager.

We conclude that a reasonable jury could infer that Kelly, the individual responsible for performing due diligence in the area of material disposition, would have discovered environmental complaints regarding the landfill’s leachate storage capacity, either through the DOE’s website or through other channels. Kelly was also responsible for hiring a landfill manager. Under these circumstances, it was likewise reasonable for a jury to infer that, as part of the hiring process, Kelly would have acquired information regarding the current landfill manager and his protected activities, even though he ultimately selected Corpstein. These duties, after all, were part of Kelly’s job. The dissent describes Kelly as “a very busy man” with “a busy schedule and numerous responsibilities.” This only furthers our point. Kelly’s job duties included performing due diligence and hiring a landfill manager—these were the tasks with which Kelly allegedly “busied” himself.

On remand, the Court directed the District  Court to consider whether the decisionmaker was a cat’s paw for individuals with actual knowledge of the plaintiff’s protected activities.  The Court also directed the District Court to consider whether the plaintiff had standing to sue the new contractor under the Federal Claims Act when he had never been an employee or contractor for it. See 31 U.S.C. § 3730(h)(1) (limiting relief from retaliatory acts to “any employee, contractor, or agent”).”

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.