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Vander Boegh v. Energysolutions, Inc.

United States District Court, Sixth Circuit

December 16, 2013



THOMAS B. RUSSELL, Senior District Judge.

This matter is before the Court upon Defendant EnergySolutions, Inc.'s "Motion for Summary Judgment on Plaintiff's Lack of Statutory Standing." (Docket No. 78.) Plaintiff Gary Vander Boegh has responded, (Docket No. 91), and Defendant has replied, (Docket No. 92). Also pending before the Court is Plaintiff's "Motion to Modify Schedule and for Leave to Conduct Discovery, " (Docket No. 82), to which Defendant has responded, (Docket No. 88), and Plaintiff has replied, (Docket No. 93). For the reasons that follow, the Court will GRANT Defendant's Motion and enter summary judgment in its favor.


The factual background of this action was set forth in detail in the Court's prior Memorandum Opinion of May 3, 2012, (Docket No. 52, at 1-7), and again in the Sixth Circuit's Opinion of August 14, 2013, (Docket No. 74, at 1-9). As such, and in the interest of brevity, here the Court will limit its recitation of the facts, which appear to be undisputed, to only those pertinent to Defendant's instant Motion.

Plaintiff was employed by WESKEM beginning in 2000 as the landfill manager at the Paducah Gaseous Diffusion Plant (PGDP). On April 23, 2006, WESKEM ceased activities at the PGDP, and Plaintiff's employment with WESKEM was terminated by WESKEM. At that time, Defendant took over the waste management duties previously performed by WESKEM. Plaintiff was never employed, managed, paid, or supervised by Defendant; no contractual relationship existed between Plaintiff and Defendant; and Defendant took no affirmative action indicating it intended to employ Plaintiff.

Plaintiff filed an employment discrimination complaint with the Department of Labor on April 18, 2006. He subsequently removed the action to this Court pursuant to 42 U.S.C. § 5851(b)(4) in February 2010. In his Complaint, Plaintiff alleges retaliation in violation of the Energy Reorganization Act (Count I), the False Claims Act (Count II), and various environmental statutes[1] (Count III). In essence, Plaintiff asserts in Counts I and III that Defendant did not hire him when it began operations at the PGDP in April 2006 because he previously had reported several environmental violations to a former employer and, in Count II, that Defendant did not hire him because years prior to his application with Defendant he had engaged in activity protected by the False Claims Act.

Defendant previously moved for summary judgment, contending that Plaintiff failed to establish a prima facie case for retaliation and that Plaintiff lacked statutory standing. In granting Defendant summary judgment, the Court concluded that Plaintiff failed to establish a prima facie case of retaliation but did not reach the issue of whether Plaintiff lacked statutory standing. Plaintiff appealed, and the Sixth Circuit, in a 2-1 decision, reversed this Court's grant of summary judgment on the limited factual issue of whether Defendant had knowledge of Plaintiff's protected activity. The majority opinion did not undertake any analysis in regard to the issue of standing under the False Claims Act, and declined to consider whether Plaintiff has statutory standing under the Energy Reorganization Act. (Docket No. 74, at 10 n.3, 17-18.) The Sixth Circuit directed this Court on remand to address specifically the issue of Plaintiff's statutory standing, which the Court will proceed to do below. ( See Docket No. 74, at 17-18.)


Summary judgment is proper when, in viewing the evidence in the light most favorable to the nonmoving party, "the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). 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). A plaintiff must present more than a mere scintilla of evidence in support of his position; he must present evidence on which the trier of fact could reasonably find for him. CareToLive v. Food & Drug Admin., 631 F.3d 336, 340 (6th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for summary judgment: "A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012).


Defendant argues that Plaintiff lacks statutory standing to bring any of his retaliation claims because all of the pertinent statutes require an employment relationship to confer standing. Where such a relationship is lacking, Defendant argues, Plaintiff's claims fail as a matter of law. As noted above, Plaintiff concedes that no employment relationship existed between him and Defendant. Plaintiff insists, however, that the whistleblower protection provisions of the relevant statutes should be read to cover not only employees but also applicants for employment. Thus, the question before the Court is a matter of statutory interpretation and whether Plaintiff has statutory standing to maintain his retaliation claims.

I. Plaintiff Lacks Standing Under the Energy Reorganization Act

Under the Energy Reorganization Act (ERA), "[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee [engaged in activity protected by the statute]." 42 U.S.C. § 5851(a)(1); McNeill v. U.S. Dept. of Labor, 243 F.App'x 93, 97 (6th Cir. 2007). The ERA is "a remedial statute intended to shield employees from adverse action taken by their employers in response to employees' complaints of safety violations." Conn. Light & Power Co. v. Sec'y of U.S. Dep't of Labor, 85 F.3d 89, 93 (2d Cir. 1996). "The starting point in interpreting a statute is its language, for [i]f the intent of Congress is clear, that is the end of the matter.'" Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).

Although the ERA provides a list of examples of entities that qualify as "employers, " neither it nor the relevant regulations define the term "employee." See 42 U.S.C. § 5851(a)(2)(A)-(G); 29 C.F.R. § 24.101. The Supreme Court holds that it is a "well established' principle" that "when Congress has used the term employee' without defining it, [courts should presume] that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989)). The Supreme Court summarizes this "common-law test for determining who qualifies as an employee'" as: "In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished." Id. (quoting Reid, 490 U.S. at 751-52). The Sixth Circuit, in applying Darden, has held that a complainant must be a "hired party" in order to bring an ERA retaliation claim. Demski v. U.S. Dep't of Labor, 419 F.3d 488, 491-92 (6th Cir. 2005); accord O'Connor v. Davis, 126 F.3d 112, 115 (2d Cir. 1997) (holding that a prerequisite to considering whether an individual is an employee under Darden 's common-law agency analysis: "is that the individual have been hired in the first instance. That is, only where a hire' has occurred should the common-law agency ...

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