Gary Vander Boegh v. EnergySolutions, Inc.

536 F. App'x 522
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 14, 2013
Docket12-5643
StatusUnpublished
Cited by9 cases

This text of 536 F. App'x 522 (Gary Vander Boegh v. EnergySolutions, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gary Vander Boegh v. EnergySolutions, Inc., 536 F. App'x 522 (6th Cir. 2013).

Opinions

GRIFFIN, Circuit Judge.

Plaintiff Gary Vander Boegh engaged in a range of protected activity as landfill manager at the Paducah Gaseous Diffusion Plant (“PGDP”), reporting several environmental violations. At relevant times, Vander Boegh worked for defendant-contractor Bechtel Jacobs Company (“BJC”) until BJC subcontracted with WESKEM to handle waste management, at which time Vander Boegh transitioned to WESKEM. Subsequently, defendant-contractor Paducah Remediation Services (“PRS”) took over the PGDP contract and [524]*524subcontracted with defendant EnergySolu-tions to handle waste management. Van-der Boegh claims that he was purposely drafted out of PRS’s bid on the PGDP contract as part of a “retaliatory course” to end his employment. Ultimately, Ener-gySolutions employee John Kelly decided not to hire Vander Boegh as landfill manager. Thus, when the transition from BJC-WESKEM to PRS-EnergySolutions was complete, Vander Boegh’s employment terminated. Vander Boegh filed an action alleging retaliation under various federal environmental statutes. The district court granted summary judgment in favor of all defendants. For the reasons that follow, we reverse the summary judgment granted in favor of EnergySolutions, affirm the summary judgment granted in favor of PRS and BJC, and remand for further proceedings consistent with this opinion.

I.

The Department of Energy (“DOE”) hired Vander Boegh in 1992 to work at the PGDP, where he became a certified landfill manager. In 1998, DOE awarded the PGDP contract to BJC. In 2000, BJC subcontracted with WESKEM to handle waste management. Throughout these transitions, Vander Boegh maintained his landfill manager position.

As landfill manager, Vander Boegh was responsible for ensuring that the disposal of nuclear waste complied with the applicable laws, regulations, and permit requirements. In particular, there were standards pertaining to leachate1 management and disposal, and the Kentucky Division of Waste Management (“KDWM”) required key personnel disclosure statements from the landfill manager as part of the permit application process.

On February 2, 2001, Vander Boegh circulated comments to management expressing concerns regarding leachate storage capacity and leakage from the landfill. On March 4, 2001, Vander Boegh sent an email to management warning that leach-ate volumes had reached critical levels. Thereafter, BJC employee Kevin Barber became increasingly threatening toward Vander Boegh and indicated during a meeting that Vander Boegh’s key personnel disclosure statements were not required and would not be submitted to KDWM. According to Vander Boegh, not submitting his disclosure statements would have threatened his job as landfill manager. Vander Boegh further alleged that, in October 2001, BJC and WESKEM managers began concealing the facility’s deficiencies from KDWM and attempted to eliminate Vander Boegh’s support staff.

In December 2001 and January 2002, Vander Boegh filed whistleblower complaints through DOE’s Employee Concern Program (“ECP”). According to Vander Boegh, a few months later, BJC attempted to remove him from the permit by requesting elimination of his key personnel disclosure statements.

On February 28, 2002, Vander Boegh met with approximately thirty individuals, including BJC’s attorney. At the meeting, Vander Boegh indicated that BJC had misidentified certain hazardous waste, which would result in Notices of Violation from the KDWM. BJC’s attorney told Vander Boegh not to contact KDWM regarding the errors. In November 2002, KDWM issued Notices of Violation against DOE for improper disposal of hazardous waste, which Vander Boegh had reported.

In July 2003, the DOE hearing officer who considered Vander Boegh’s whistle-[525]*525blowing allegations found several instances of retaliation, including harassment and intimidation by Barber. The hearing officer directed BJC to refrain from changing Vander Boegh’s job status for at least one year.

Subsequently, DOE decided to solicit new bids for the PGDP contract and issued a request for proposals. Although Northwind Corporation won in the initial bidding process, DOE decided to perform a rebid after receiving a complaint from PRS. To prepare the waste management portion of its bid, PRS subcontracted with Duratek Federal Services, which Energy-Solutions ultimately acquired.2 By then, Barber had left BJC to work for Energy-Solutions, and he helped prepare PRS’s bid. Barber testified that the bid language was reviewed and approved by PRS management. PRS won the rebid and subcontracted with EnergySolutions to take over the waste management duties previously performed by WESKEM. Like previous PGDP contracts, the contract entered into by PRS contained a provision defining “grandfathered employees” and granting them “a preference in hiring for vacancies for non-managerial positions,” including “a right of first refusal for vacancies ... in positions substantially equivalent to the positions they currently perform.”

Beginning in January 2006, operations at the PGDP were transitioned from BJC-WESKEM to PRS-EnergySolutions. During the transition, EnergySolutions employee John Kelly was assigned as project manager for material disposition, responsible for performing “due diligence” during the transition period. His job was to ensure a smooth transition from the current contractors to the new contractors in the area of material disposition. According to Kelly, he had complete discretion in selecting the landfill manager under the new contract. When Kelly first arrived, he knew that Vander Boegh was the landfill manager under the previous contract because his name was listed on the organizational chart, but Kelly never had occasion to personally interact with Van-der Boegh.

On February 13, 2006, Vander Boegh met with the “contract transition team” that reported to Kelly, including Energy-Solutions employee Paul Corpstein. Van-der Boegh gave a presentation describing WESKEM’s landfill operations and management. Afterward, he asked Corpstein about EnergySolutions’ free liquid problems and commented about the leachate storage issues at the PGDP.

On February 14, 2006, Vander Boegh met with PRS officials John Razor and Mike Spry to inform them that BJC’s report, which indicated that his whistleblower complaints had been resolved, was incorrect. Razor responded that those complaints had “nothing to do with [them],” though Spry was able to access Vander Boegh’s pending claim online to see that it was unresolved. After discussing the leachate storage capacity design flaws of the new leachate treatment plant, Vander Boegh asked Razor how he would know when to apply for the landfill manager position under the new contract. Razor told Vander Boegh to look for the job posting on PRS’s website.

On February 21, 2006, Vander Boegh filed a third ECP whistleblower complaint, claiming that Barber had been instrumental in removing Vander Boegh and inserting himself as the landfill manager in [526]*526PRS’s bid. Although the bid did not identify the landfill manager by name, according to Vander Boegh, Barber envisioned himself in the position and described the landfill manager as an individual having his own credentials. Corpstein also stated that Barber had visions of himself becoming the landfill manager. According to Corpstein, the reason that Barber did not become the landfill manager was because he decided to leave the company before the end of 2005.

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536 F. App'x 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gary-vander-boegh-v-energysolutions-inc-ca6-2013.