Opinion
Civil Action 1:20-cv-2120-CMC-TER
01-27-2022
TRACY A. PALMER, Plaintiff, v. CENTERRA GROUP, LLC, STEVE HEALY, CHARLES SHOUP, and JOSHUA HERRING, Defendant.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This action arises out of Plaintiff's employment with Defendant Centerra Group, LLC. Plaintiff alleges causes of action for retaliation under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. and the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201, et seq. as well as state law causes of action for defamation and outrage. Presently before the Court is Defendants' Motion for Summary Judgment (ECF No. 34). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
Plaintiff began employment with Defendant Centerra in October 1999 as a Security Police Officer II (SPO II). Pl. Dep. 12 (ECF No. 46-7). Defendant Centerra contracts with the U.S. Department of Energy (DOE) to provide security to the Savannah River Site (SRS), which stores and processes special nuclear material. Plaintiff was armed with a sidearm and a long gun and also trained with heavier weapons available for the defense of the SRS. Pl. Dep. 13-14.
The SRS is a 310-square-mile facility owned by the DOE in Aiken, Barnwell, and Allendale Counties. The SRS was built in the 1950s to provide nuclear materials for the defense nuclear weapons program and continues to provide radioactive materials for the maintenance of the nation's nuclear stockpile. Today, SRS's mission includes managing and maintaining nuclear materials left from the Cold War. See SRS Factsheet (ECF No. 34-3).
The SPO II position requires a DOE Q security clearance, equivalent to “top secret, ” and certification in the DOE's Human Reliability Program (HRP). Pl. Dep. 13-14. HRP is a “security and safety reliability program designed to ensure that individuals [with access to nuclear materials] meet the highest standards of reliability and physical and mental suitability” “through a system of continuous evaluation.” 10 C.F.R. § 712.1. Certification in HRP involves regular psychological evaluations by the DOE Designated Psychologist. Daniels Dep. 15-16 (ECF No. 34-13); Dr. Larry Daniels is one of two designated psychologists at SRS. Daniels Dep. 10-13 (ECF No. 34-13). It is undisputed that Plaintiff qualified for both Q clearance and HRP certification at hire, and he maintained both without issue until August of 2017.
In August 2017, Plaintiff attempted to use intermittent FMLA leave, for which he had been approved since October 2016 to care for his wife, who suffered a traumatic brain injury. (Pl. Dep. Ex. 2-6 (ECF No. 46-7). Plaintiff testified that he needed FMLA leave beginning in August 2017 because his wife's condition had declined to the point of needing full-time care. Pl. Dep. 21. Soon after Plaintiff submitted his FMLA request, United Professional Pro-Force of Savannah River Local 125 (the Union), went on strike. Pl. Dep. 31; Healy Dep. 37 (ECF No. 46-9).
On August 23, 2017, Centerra's Human Resources Manager, Defendant Healy, called Plaintiff at his home and told Plaintiff return to work immediately or turn in his badge because “the assumption was he was on strike.” Healy Dep. 39-41. Plaintiff informed Healy that he was not on strike but on approved FMLA leave. Healy Dep. 40. Healy, however, indicated that he had no proof that Plaintiff was on FMLA and thus considered Plaintiff on strike, which not only required Plaintiff to turn in his badge but also meant Plaintiff's benefits had been terminated as of the date of the strike. Healy Dep. 40-41, 46-47.
On the second day of back-and-forth between Plaintiff and Healy over Plaintiff's FMLA leave, Plaintiff informed Healy that he had hired an attorney, who was writing a letter on his behalf to demand Centerra's compliance with federal law in permitting Plaintiff to use his pre-approved FMLA, notwithstanding the strike. Pl. Dep. 35-36; Healy Dep. 61 and Ex. 3 (ECF No. 46-10). At this point, Healy asked Plaintiff to send him any documentation he had showing his use of FMLA in August 2017, and instructed Plaintiff to fax it to the records office in Workforce Services Division using a fax No. Healy provided. Healy Dep. 49, 51. Defendant Healy did not advise Plaintiff that the No. he provided was for an unsecure fax line. Healy Dep. 51.
Plaintiff complied with Defendant Healy's directive and faxed him the requested documentation to the No. Healy provided. Healy Dep. 42. The documentation included a handwritten cover letter in which Plaintiff notes that he confirmed his entitlement to FMLA with a Department of Labor investigator and two post rotation sheets from August 15 and 16 designating Plaintiff as out on FMLA. Healy Dep. Ex. 2 (ECF No. 46-10); Pl. Dep. Ex. 8-9 (ECF No. 46-7). Centerra ultimately permitted Plaintiff to use FMLA leave retroactively effective August 15, 2017, until October 8, 2017. Healy Dep. Ex. 1. Plaintiff returned to work from FMLA leave on October 10, 2017. Healy Dep. Ex. 1.
From at least 2005 until August of 2017, Plaintiff received one disciplinary action (a written warning) and was recommended for continued participation in HRP in each of his yearly reviews. HRP Supervisory Reviews 2005-2017 (ECF No. 46-2). Following his return to work from FMLA leave on October 10, 2017, Plaintiff received a No. of disciplinary actions.
Plaintiff asserts, and it is undisputed, that he received only one disciplinary action from the time he started the position in 1999 until August of 2017, but Defendant only produced supervisory review records going back to 2005.
On October 20, 2017, Plaintiff received a security infraction for sending an Unclassified Controlled Nuclear Information (UCNI) document from his home to Healy on an unsecure fax machine on August 24, 2017. Healy Dep. Ex. 4 (ECF No. 46-10). Plaintiff maintains that he “told [Healy] exactly what [he] was faxing him, ” post rotations from August 15 and 16, and that he simply “did exactly what Steve Healy asked [him] to do.” Pl. Dep. 47, Ex. 9 (ECF No. 46-7). Defendant Healy denies knowing what documents Plaintiff would be faxing but admits that he did not inform Plaintiff that he was providing the No. to an unsecure fax line. Healy Dep. 49-51 (ECF No. 46-9).
On October 23, 2017, Plaintiff was investigated and temporarily removed from HRP for social media statements made while out on FMLA. Reason for Temporary/Delay to HRP (ECF No. 46-3).
On November 13, 2017, Plaintiff was disciplined for failing to identify an uncleared individual entering a secure area. Pl. Dep. Ex. 21 (ECF No. 46-7). The only record of this disciplinary action is in a HRP Supervisory Review conducted on November 16, 2017, where it is listed as an incident in which Plaintiff “displayed poor judgment or inappropriate responses while on the job.” Pl. Dep. Ex. 21 (ECF No. 46-7). There is no record of the corresponding written warning or notice of discipline Pl. Dep. 72-73 (ECF No. 46-7). However, Defendant Healy submitted the subject HRP Supervisory Review to the DOE on November 20, 2017. Pl. Dep. Ex. 22 (ECF No. 46-7). The incident also was submitted to and considered by Dr. Daniels in Plaintiff's January 25, 2018, psychological evaluation. Pl. Dep. Ex. 23 (ECF No. 46-7). Plaintiff denies the incident occurring and denies receiving any discipline for such incident. Pl. Dep. 72-73, 167 (ECF No. 46-7).
On November 14, 2017, Plaintiff was disciplined for damage to the trim of a government vehicle when Plaintiff slipped trying to enter the vehicle. Healy Dep. Ex. 7 (ECF No. 46-11). On that date, while attempting to enter a DOE van to report to weapons qualification, Plaintiff's foot slipped from the door frame and onto the plastic trim under the rear passenger side door. Healy Dep. Ex. 7 (ECF No. 46-11); Pl. Dep. 68-69 (ECF No. 46-7). The force of the fall caused the plastic trim to become almost entirely dislodged and left a gash in Plaintiff's shin. Id. When the driver of the van attempted to back out of the parking, the trim caught on the pavement and bent all the way out to the side. Id. Plaintiff then removed the rest of the trim, which only hung by one clip, because the group did not have another van to take to the range. Id. The driver reported the damage as required by Centerra policy. Id. Plaintiff maintains this incident was an accident, but Defendant Centerra characterized the damage as intentional and issued a disciplinary action to Plaintiff. Id. Defendant Healy signed the Notification of HRP Report of Discipline submitted to the DOE. Healy Dep. Ex. 7 (ECF No. 46-11).
On January 25, 2018, Plaintiff was subjected to a supplemental psychological evaluation by DOE psychologist Dr. Larry E. Daniels, during which Dr. Daniels recommended that Plaintiff remain temporarily removed from HRP duties. Daniels Dep. Ex. 1 (ECF No. 46-14).
On February 27, 2018, Plaintiff was interrogated about a reported scratch on the side of Healy's car. Plaintiff was the only individual to have his keys inspected and photographed. Healy Dep. Ex. 6 (ECF No. 46-11).
On May 1, 2018, Plaintiff was subjected to another supplemental psychological evaluation by Dr. Daniels, in which Dr. Daniels recommended that Plaintiff be returned to HRP duties. Daniels Dep. Ex. 2 (ECF No. 46-14).
On June 19, 2018, Plaintiff was disciplined for failure to report for scheduled training. Shoup Dep. Ex. 2 (ECF No. 46-12). The parties dispute whether Plaintiff received notice of the training scheduled on June 19, 2018. Plaintiff testified in this action and at a DOE hearing that he never received notice of the training. Pl. Dep. 167-68 (ECF No. 46-7); DOE Hearing Tr. 22-25 (ECF No. 46-4). Additionally, it was stipulated at Plaintiff's DOE hearing that Defendant Centerra did not have the requisite paperwork that would indicate that Plaintiff had been notified of the training. Pl. Dep. Ex. 43 (ECF No. 46-8). However, Defendant Shoup testified that Plaintiff “admitted to getting the notification form and signing it, and then a couple of days later he changed his story and he said he never got notified.” Shoup Dep. 45 (ECF No. 46-12).
On July 25, 2018, Plaintiff was scheduled for a post-shift meeting with the DOE personnel security officer concerning the disciplinary action he received for the missed training on June 19, 2018. Shoup Dep. 48 (ECF No. 46-12). Typically when employees have appointments scheduled at the end of a shift, they are notified of the appointment in advance so that they can adjust their start time accordingly. Herring Dep. 50 (ECF No. 46-12). The parties disagree as to whether Plaintiff received notice of his appointment with the DOE in advance. Plaintiff reported to work at the beginning of his shift and stayed on the clock through the time he returned from the DOE meeting to clock out. Shoup Dep. 60 (ECF No. 46-12); Pl. Dep. 141 (ECF No. 46-7). Plaintiff worked around 16 hours that day and, thus, was entitled to a $10 meal allowance under the Union's Collective Bargaining Agreement (CBA). Hughes Aff. ¶¶ 7, 10 (ECF No. 46-5).
Defendant Shoup testified that, on July 25, 2018, he manually adjusted Plaintiff's time sheet by either changing or entering Plaintiff's out time “to make sure it was correct.” Shoup Dep. 52 (ECF No. 46-12). According to Defendant Shoup, he based his adjustment on the time the DOE personnel security office reported Plaintiff leaving his appointment. Shoup Dep. 50 (ECF No. 46-12). Chris Hughes, the Union Steward assigned to that particular shift, avers that Defendant Shoup changed the out-time on Plaintiff's time sheet to reflect 14.9 hours worked. Hughes Aff. ¶¶ 7-8 (ECF No. 46-5). Defendant Shoup denied reducing Plaintiff's hours. Shoup Dep. 62 (ECF No. 46-12). Plaintiff and Hughes testified that they met with Defendant Shoup the next day to seek a correction of the time sheet so that Plaintiff would be paid for all hours worked and would receive the $10 meal allowance. Pl. Dep. 175 (ECF No. 46-7); Hughes Aff. ¶ 7 (ECF No. 46-5). Hughes avers that Defendant Shoup “begrudgingly agreed” to correct Plaintiff's time sheet to pay him for all hours worked and to provide him the with meal allowance. Hughes Aff. ¶ 11 (ECF No. 46-5). Defendant Shoup disputes that Plaintiff was present at that meeting and maintains that the meeting only concerned the meal allowance. Shoup Dep. 59, 60 (ECF No. 46-12).
On October 6, 2018, Plaintiff was reported for “aberrant behavior” and temporarily removed from HRP after reporting sick to an overtime shift. Shoup Dep. Ex. 9 (ECF No. 46-12). Plaintiff testified that when he arrived at work on October 6, 2018, he was exhausted from having already worked sixty-nine hours that week. Pl. Dep. 86 (ECF No. 46-7). Plaintiff did not call out sick before leaving his house because he had hoped drinking energy drinks on his way to work would be sufficient; however, once at work, Plaintiff realized he was beginning to feel ill and could not safely work his shift. Pl. Dep. 94 (ECF No. 46-7); Herring Dep. Ex. 3 (ECF No. 46-13). Therefore, instead of clocking in, Plaintiff went to the lieutenants' station, as a courtesy, to notify them in person that he was taking a sick day. Pl. Dep. 94 (ECF No. 46-7); Herring Dep. Ex. 3 (ECF No. 46-13). In that same conversation, Lieutenant Buchanan informed Plaintiff that he had been moved from his original post, and Plaintiff, Buchanan, and Defendant Herring had a brief exchange about the rotation. Pl. Dep. 86 (ECF No. 46-7); Herring Dep. Ex. 3 (ECF No. 46-13). Plaintiff then left for the day, but while he was still in the parking lot, Plaintiff called back to the lieutenants' station and informed Defendant Herring that he was calling out sick, since the CBA technically required a phone call and Plaintiff wanted to have a record of that call. Herring Dep. 60 (ECF No. 46-13); Pl. Dep. 169-70 (ECF No. 46-7). Plaintiff denies leaving work because he did not like his rotation. Pl. Dep. 102; Herring Dep. Ex. 3 (ECF No. 46-13).
Defendants assert that Plaintiff' “did not appear ill as he reported and departed from work” and that Plaintiff's “refusal to work was simply because he did not want to work the modified post rotation.” Shoup Dep. Exs. 5-6 (ECF No. 46-12). According to Defendant Herring, Plaintiff came to the lieutenants' station twice on October 6, 2021-the first time to question and complain about his shift assignment and a second time, several minutes later, to inform them he was going home. Herring Dep. 60 (ECF No. 46-13). Defendant Herring also maintains that Plaintiff did not claim he was sick until he called from the parking lot to officially call out sick. Herring Dep. 87 (ECF No. 46-13).
A meeting was held by “Senior Management, Union” and Plaintiff on October 16, 2018, regarding Plaintiff's action, which resulted in a decision that no formal discipline would be administered but correction counseling would be issued. Pl. Dep. Ex. 34 (ECF No. 34-10). On October 17, 2018, Plaintiff received corrective counseling for his use of sick leave on October 6, 2018. Shoup Dep. Ex. 5 (ECF No. 46-12). On October 18, 2018, Alfred Ward, Centerra's HRP Management Official, notified Jimmy Clark, DOE HRP and HSPD-12 Program Manager, of the decision not to administer formal discipline. Pl. Dep. Ex. 34 (ECF No. 34-10). He further requested that Plaintiff be reinstated into the HRP. Pl. Dep. Ex. 34 (ECF No. 34-10). Clark requested more detailed information about the incident, and further stated,
Requests for reinstatement should not be based on Senior Management's decision regarding discipline. As the Centerra HRP Management Official, do you believe this individual is suitable and reliable for HRP Certification?Pl. Dep. Ex. 34 (ECF No. 34-10). Ward responded to the email with more detailed information regarding the incident, and further stated, “Supervision felt that [Plaintiff's decision not to work] was simply because he did not want to work the modified post rotation. The meeting that was held had decided that wasn't the case and that is why no formal discipline was issued.” Pl. Dep. Ex. 34 (ECF No. 34-10). Clark responded, asking “As the Centerra HRP MO are you requesting reinstatement of this employee? If so, how have you mitigated the security concerns identified at the time of his temporary removal? Please ensure you consider the employee's history when making your recommendation.” Pl. Dep. Ex. 34 (ECF No. 34-10). In a separate email, Ward indicated that he would arrange for Plaintiff to be reevaluated by Dr. Daniels and would ensure that “Major Shoup and whoever he feels address their concerns with Dr. Daniels prior to the evaluation.” Ward Email Corr. (ECF No. 34-7).
On December 5, 2018, Dr. Daniels conducted another supplemental psychological evaluation of Plaintiff. Daniels Dep. Ex. 3 (ECF No. 46-14). In the evaluation, Dr. Daniels indicated that she spoke for 30-45 minutes each with Lt. Herring, Captain Sawyer, and Major Shoup at the request of Centerra Management regarding Plaintiff's overall performance, reliability, and specifically the events of October 6, 2018. Daniels Dep. Ex. 3 (ECF No. 46-14). Dr. Daniels stated that these interviews “suggested an individual with questionable integrity and veracity; an individual who responds negatively when he does not “get his way”; an individual who may not be emotionally stable; an individual who is not reliable, does not make good decisions, and does not take responsibility for the consequences of his own behavior.” Daniels Dep. Ex. 3 (ECF No. 46-14).
Aside from these interviews, with respect to the events of October 6, 2018, in particular, Dr. Daniels indicated that a review of statements from SPOI Freddie Johnson, Lt. Buchanan, and Lt. Herring, “all present a consistent account of the events in questions, which differs substantially from [Plaintiff's] account.” Daniels Dep. Ex. 3 (ECF No. 46-14). Dr. Daniels also recounted some stressors at home as related by Plaintiff in previous evaluations, including that his wife was injured at work in 2016, re-injured in a motor vehicle accident in 2017, and suffers from multiple ailments, that both his step-father and father had recently been diagnosed with cancer, and that his mother was incapable of living unassisted. Daniels Dep. Ex. 3 (ECF No. 46-14). Plaintiff had admitted to Dr. Daniels in previous evaluations that “he had been unusually ‘thoughtless' since his wife's injury” and that “his recent write-ups generally involved failure to follow policies and procedures.” Daniels Dep. Ex. 3 (ECF No. 46-14). Plaintiff stated that “this is not representative of his work behavior prior to 2016.” Daniels Dep. Ex. 3 (ECF No. 46-14). Nevertheless, Dr. Daniels concluded that he has taken concrete actions as recommended previously to address his situational stressors and many of the stressors had “spontaneously ameliorated” such that it was not likely that his recent issues could be attributed to life stress. Daniels Dep. Ex. 3 (ECF No. 46-14). Dr. Daniels concluded by stating,
Given the history of concerns outlined above and given recent guidance in 10 CFR 712.11 suggesting that “any doubt as to a candidate's eligibility for certification shall be resolved against the candidate in favor of national security or safety, ” I cannot, in good conscience, recommend [Plaintiff] for re-instatement in the HRP at this time.Daniels Dep. Ex. 3 (ECF No. 46-14).
On March 4, 2019, it was recommended to the DOE that Plaintiff's HRP certification be revoked. Pl. Dep. Ex. 38 (ECF No. 46-8). In late May of 2019, the DOE suspended Plaintiff's security clearance. Pl. Dep. Ex. 40 (ECF No. 46-8).
Thereafter, Plaintiff utilized DOE's appeal procedures and appeared pro se before a DOE Administrative Judge for an evidentiary hearing on October 10, 2019, to challenge the suspension of his security clearance. DOE Hearing Transcript (ECF No. 46-4). In a written decision issued on November 5, 2019, Administrative Judge Janet R.H. Fishman found that Plaintiff “brought forth sufficient evidence to resolve the security concerns set forth in the [DOE clearance suspension] Notification Letter” and held that Plaintiff's DOE security clearance should be restored. Pl. Dep. Ex. 43 (ECF No. 46-8). In particular, the Judge noted,
“[a]t the hearing, the DOE Psychologist testified that, based on the new information that he had learned at the hearing, he no longer believed that [Plaintiff] displayed a lack of trustworthiness, reliability, or veracity. Moreover, the DOE Psychologist expressed that he now doubted the veracity of the information provided to him by the [Centerra] personnel with whom he consulted concerning [Plaintiff]'s conduct prior to issuing his second report.”Pl. Dep. Ex. 43 (ECF No. 46-8). During his deposition in this action, Dr. Daniels testified,
I don't have any impression or reason to believe that [Shoup, Sawyer, or Herring] shared a [sic] false information with me intentionally. I believe they communicated to me the facts and the truth as they knew it and understood it at that time.Daniels Dep. 89 (ECF No. 46-14).
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
A. Waiver
Defendants argue Plaintiff's claims are barred by a waiver signed by Plaintiff because the plain language of the waiver states that rights under any applicable federal statute are waived where it involves the disclosure of HRP records to DOE officials. (ECF No. 6 at 40). DOE regulations require Plaintiff to “[e]xecute HRP releases, acknowledgments, and waivers to facilitate the collection and dissemination of information, ...” in order for DOE to administer the HRP program. 10 C.F.R. § 712.12(g)(1). Defendants cite to the regulations that require disclosure and point to specific concerns that are to be reported which are factually relevant here. 10 C.F.R. § 712(c).
Plaintiff argues his claims are not barred by the waiver because the waiver is silent as to disclosures of information in retaliation. (ECF No. 42 at 8). Plaintiff argues that the “legitimate need” language in the waiver cannot be interpreted to cover false or ill-intentioned information disclosed in retaliation. (ECF No. 42 at 9). While Plaintiff generally argues that application of the waiver under these circumstances would violate a public policy, he fails to provide precedent or authority supporting this argument.
A published case from the District Court of the District of Columbia provides a meaningful description of the HRP for background purposes:
The HRP is a security and safety reliability program designed to ensure that individuals who occupy positions affording access to certain materials, nuclear explosive devices, facilities, and programs meet the highest standards of reliability and physical and mental suitability." 10 C.F.R. § 712.1. HRP itself requires a "Q" access authorization, Id. at § 712.11(a)(1), the Department of Energy equivalent of a Top Secret security clearance, Id. at § 25.15(a). The certification further requires, among other things, annual submission of the SF-86 Questionnaire for National Security Positions, completion of a counterintelligence evaluation, and an "annual supervisory review, medical assessment, management evaluation, and a DOE personnel security review." Id. at § 712.11(a). Thus, while the HRP is not itself a "security clearance" in the traditional sense of the term, it is a more rigorous screening program created so that relevant individuals within the Department of Energy make the annual predictive judgment as to whether providing a particular individual access to nuclear programs is consistent with security and reliability concerns.Foote v. Chu, 928 F.Supp.2d 96, 100 (D.D.C. 2013), aff'd sub nom., 751 F.3d 656 (D.C. Cir. 2014).
The waiver signed by Plaintiff at issue here states in part:
2. I understand that the HRP certification process will generate medical and non-medical records (hereinafter HRP records) relevant to my eligibility to occupy an HRP position. I recognize these HRP records are protected by the Privacy Act of 1974, as amended. ...
4. I hereby consent that any of the HRP records…may be disclosed to the appropriate Corporation management and DOE officials who have a legitimate need for the records in the performance of their duties and responsibilities in the HRP review and approval process.
5. I acknowledge that such disclosure in connection with the HRP is an approved disclosure in accordance with 5 U.S.C. § 552a(b)(1). I further agree that this document will serve as written consent to disclosure of the HRP records to the appropriate Corporation management and DOE officials within the meaning of the Privacy Act.
6. I further waive any rights and release the Corporation, DOE, and any and all individuals employed by the Corporation or DOE…from liability under the Privacy Act, 5 USC § 552a, the U.S. or state constitutions, any other applicable federal or state statutes, any applicable physician-patient privilege, and common law claims of any nature whatsoever, for disclosure of my HRP records to Corporation management or DOE officials with a legitimate need for the records in the performance of their responsibilities in the HRP review and certification process.Pl. Dep. Ex. 13 (ECF No. 46-7).
As set forth in the Waiver, such HRP records are protected by the Privacy Act of 1974, 5 U.S.C. § 552a. The Privacy Act requires federal agencies to maintain records used to make determinations about individuals “with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.” 5 U.S.C. § 552a(e)(5). It also requires federal agencies to establish appropriate safeguards to “insure the security and confidentiality of records.” 5 U.S.C. § 552a(e)(10). Plaintiff waived any rights to bring an action with respect to the disclosure of his HRP records to “Corporation management or DOE officials with a legitimate need for the records in the performance of their responsibilities in the HRP review and certification process.” Id. The waiver does not specifically define “HRP records” other than in paragraph 2 which labels HRP records as medical and non-medical records generated by the HRP Certification process. Pl. Dep. Ex. 13 (ECF No. 46-7).
Reviewing the plain language of the waiver, it is evident that it waives any rights and releases Defendants from liability under “any other applicable federal or state statutes” for the disclosure of HRP records to DOE, which would include a cause of action arising from the FMLA or the FLSA. There is no exception laid out in the plain language of the waiver.
As to the language “legitimate need” in relation to HRP and DOE, this is heavily managed by regulation and Defendants were required to report- meaning DOE had a legitimate need for information related to the regulatory reporting requirement- the following:
Types of behavior and conditions that would indicate a concern include, but are not limited to:
(1) Psychological or physical disorders that impair performance of assigned duties;
(2) Conduct that warrants referral for a criminal investigation or results in arrest or conviction;
(3) Indications of deceitful or delinquent behavior;
(4) Attempted or threatened destruction of property or life;
(5) Suicidal tendencies or attempted suicide;
(6) Use of illegal drugs or the abuse of legal drugs or other substances;
(7) Alcohol use disorders;
(8) Recurring financial irresponsibility;
(9) Irresponsibility in performing assigned duties;
(10) Inability to deal with stress, or the appearance of being under unusual stress;
(11) Failure to comply with work directives, hostility or aggression toward fellow workers or authority, uncontrolled anger, violation of safety or security procedures, or repeated absenteeism;
(12) Significant behavioral changes, moodiness, depression, or other evidence of loss of emotional control; and (13) Any unusual conduct or being subject to any circumstances which tend to show that the individual is not reliable.10 C.F.R. § 712.13. HRP certified individuals like Defendants have a regulatory duty to report othe HRP certified individuals behaviors or conditions including those in § 712.13(c). 10 C.F.R. § 712.12(g)(3). Further, if there is doubt as to eligibility for HRP, it is resolved by regulation against the individual and in favor of national security and/or safety. 10 C.F.R. § 712.11(f). The infractions, reports, and evaluations by Defendants from October 2017 to March 2019 cannot be said to not fall into one or more of these thirteen regulatory concerns that are required to be reported by Defendants. Thus, under the waiver, it cannot be said that this information disclosure does not amount to a legitimate need. Plaintiff's claims are barred by the waiver Plaintiff signed.
Plaintiff asserts these actions by Defendant are: Defendant Healy knowingly instructing Plaintiff to fax UCNI to an unsecure fax line on August 25, 2017; Plaintiff's security infraction for sending UCNI to an unsecure fax line on October 20, 2017; Defendant Centerra's investigation into and temporary removal of Plaintiff from HRP on October 23, 2017, for social media statements made while out on FMLA; Plaintiff's disciplinary action for failing to identify an uncleared individual entering a secure area on November 13, 2017, the actual write up for which has never been produced; Plaintiff's disciplinary action for accidental damage to the trim of a government vehicle on November 14, 2017; Plaintiff's interrogation in connection with a reported scratch on the side of Defendant Healy's car on February 27, 2018; Plaintiff's disciplinary action for failure to report to a scheduled training for which he never received notice; Plaintiff's temporary removal from HRP for reporting sick to an overtime shift on October 6, 2018, and the resulting corrective action issued on October 17, 2018; and Defendant Shoup's and Defendant Herring's interviews with the DOE psychologist prior to Plaintiff's supplemental evaluation on December 5, 2018. Pl. Am. Resp. p. 21 (ECF No. 46)
B. Security Clearance
Defendants argue that in addressing Plaintiff's FMLA and FLSA claims this court would necessarily address the propriety of revoking Plaintiff's clearance which is prohibited by Dep't of the Navy v. Egan, 484 U.S. 518 (1988). Plaintiff argues his claims require no such review because he is not questioning the standards of HRP certification. Plaintiff argues the Defendants, non-government entities, defamed him through fallacious representations of his character and qualifications to DOE and retaliated against him for asserting his rights under FMLA and FLSA, not that the DOE erred in revoking his clearance. Plaintiff argues his problems were not with DOE's actions but are with Defendant's actions in providing false reports of Plaintiff's conduct to DOE. In the present case, Plaintiff argues that he does not challenge the DOE's revocation of his security clearance nor do his claims require this Court to consider the merits of the DOE's decision. Rather, he argues, he challenges the retaliatory actions by Defendants that “informed-and ultimately caused-DOE's decision to revoke his security clearance.” Pl. Resp. p. 17. Plaintiff challenges the disciplinary actions taken against him by Defendants and the information they provided to Dr. Daniels in interviews upon which Dr. Daniels later relied in making her recommendation to the DOE that his HRP certification be revoked. The revocation of his HRP certification ultimately led to the revocation of his security clearance.
In Dep't of the Navy v. Egan, 484 U.S. 518 (1988), a Navy civilian employee challenged his dismissal for failure to maintain a security clearance. Id. at 520. The Merits Systems Protection Board (MSPB), which hears claims of wrongful discharge by federal employees, held it did not have the authority to review the Navy's denial of plaintiff's clearance. Id. The Court of Appeals reversed, and the Supreme Court granted review. Id. The Supreme Court determined that “the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” Id. at 529. The Supreme Court found it unreasonable “for an outside nonexpert body, ” like a court, “to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative [security determination] with confidence.” Id. Accordingly, the Supreme Court held that courts should not intrude upon an agency's determination on security clearance “unless Congress specifically has provided otherwise.” Id. at 530.
The Tenth Circuit Court of Appeals found that the DOE's investigation into HRP clearance was shielded by Egan but later decisions in that plaintiff's case about not reassigning to a non-HRP job were not shielded by Egan. Sanchez v. United States Dep't of Energy, 870 F.3d 1185, 1195-96 (10th Cir. 2017). The Supreme Court held in Egan that the court should not review the substance of a security clearance judgment. Egan, 484 U.S. at 530. If the court must review the circumstances under which DOE recommended the revocation or the legitimacy of the proffered reasons, then Egan would bar the court's review. Sanchez, 870 F.3d at 1195-96.
In the Circuit Court of Appeals for the District of Columbia, a job applicant sued the DOE under Title VII after his HRP was denied, which he alleges was based on intentionally false information and racially motivated. Foote v. Moniz, 751 F.3d 656 (D.C. Cir. 2014)(collecting cases of other employment actions barred by Egan). The court found it was a nonjusticiable challenge. “To begin with, the Government has a substantial national security interest in denying unreliable or unstable individuals access to nuclear devices, materials, and facilities, a point that requires no extended discussion. Indeed, the Human Reliability Program was established in part under the same Executive Order cited in Egan-Executive Order 10, 450-in order to "protect the national security" by identifying "individuals whose judgment may be impaired" by any "condition or circumstance that may represent a reliability, safety, or security concern." Human Reliability Program, 69 Fed.Reg. 3213, 3213-14, 3223 (Jan. 23, 2004).” Foote v. Moniz, 751 F.3d 656, 658 (D.C. Cir. 2014). The court found plaintiff's challenge alleging the denial of clearance based on intentionally false information was a nonjusticiable challenge.
The facts in Reinbold v.v. Evers, 187 F.3d 348, 357-58 (4th Cir. 1999), are similar to those here. The plaintiff in Reinbold held a special National Security Agency security clearance that granted him access to “sensitive compartmented information.” Id. at 351-52. Like Plaintiff, Reinbold remained an employee at the time of his lawsuit, and he challenged the revocation of his security clearance. Id. at 351-52, 354. Reinbold alleged that his superiors had provided false derogatory information to the NSA, resulting in loss of his clearance. Id. at 354. Specifically, Reinbold alleged his superiors falsely stated that he complained of financial trouble, he was dissatisfied with his job, he was a danger to himself and others, and he believed that Naval personnel were out to get him. Id. Reinbold appealed the revocation of his clearance to an administrative hearing and, like our Plaintiff, his clearance was restored. Id. Reinbold claimed that the action was in retaliation for his making a complaint to the Inspector General's office over alleged wrongdoing. Id. The Fourth Circuit affirmed the district court's grant of summary judgment in favor of the defendants, holding that to address Reinbold's claim the court “must determine whether the NSA wrongly suspended his SCI security clearance[, ]” which “is precisely the type of review that Egan prohibits.” Id. at 358.
Plaintiff in the present case argues that the plaintiffs in both Reinbold and Egan were federal employees suing the government agency responsible for the security clearance determination while he is a private employee suing a private employer. However, he points to no case law making this distinction as it applies to the decision to revoke a security clearance. Cf. McDaniel v. Allied Signal, Inc., 896 F.Supp. 1482, 1490 (W.D. Mo. 1995) (holding with respect to an ADA failure to accommodate claim that a government contractor cannot be held liable for failing to ensure that an employee maintains his security clearance). Because the DOE's decision to grant, deny, or revoke a security clearance is not open to further review, Egan, 484 U.S. at 527, any of Plaintiff's claims directly or indirectly challenging the suspension of his security clearance are subject to dismissal.
The Fourth Circuit Court of Appeals addressed the bar of judicial review in a Title VII action where Plaintiff contested the instigation and not the revocation itself:
The reasons why a security investigation is initiated may very well be the same reasons why the final security clearance decision is made. Thus, if permitted to review the initial stage of a security clearance determination to ascertain whether it was a retaliatory act, the court would be required to review the very issues that the Supreme Court has held are non-reviewable.Becerra v. Dalton, 94 F.3d 145, 149 (4th Cir.1996)(emphasis added).
Here, if the court were to review the alleged retaliatory reports from Defendants to DOE that made up the foundation of the eventual revocation, it would be equivalent to the non-reviewable issues of alleged retaliation via false derogatory information in Reinbold, alleged retaliatory instigation of investigation found in Becerra and the claims in Foote where it was alleged intentionally false information was provided that undergirded the clearance decision.
Based on the foregoing, this action should be barred by Plaintiff's signed waiver and is a non-justiciable challenge originating from the principles in Egan and its progeny.
In the alternative, for purposes of discussion in the event the district judge does not agree that the claims are barred by waiver or security clearance concerns, the merits of Plaintiff's FMLA and FLSA retaliation claims are discussed below.
C. Retaliation
The FMLA provides that “an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period ... [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1). The FMLA also prohibits an employer from discriminating against an employee for asserting rights under the Act. 29 U.S.C. § 2165(a)(2). “The FMLA creates two types of claims: (1) interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act; and (2) retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act.” Gleaton v. Monumental Life Ins. Co., 719 F.Supp.2d 623, 633 n. 3 (D.S.C. 2010) (internal citation omitted). Plaintiff asserts retaliation claims in this action. The FLSA establishes the general rule that employers must compensate each employee “at a rate not less than one and one-half times the regular rate” for all overtime hours that an employee works. 29 U.S.C. § 207(a)(1). Under the FLSA, it is illegal for an employer “‘to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.'” Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir. 2008) (quoting 29 U.S.C. § 215(a) (3)).
Retaliation claims under both the FMLA and the FLSA are evaluated under the McDonnell Douglas burden-shifting framework. Perry V. Computer Sciences Corp., 429 Fed.Appx. 218, 221 (4th Cir. 2011); Darveau, 515 F.3d at 340. To establish a prima facie case of retaliation under the FMLA, Plaintiff must show (1) he engaged in protected activity, (2) the employer took adverse action against him, and (3) the adverse action was causally connected to the plaintiff's protected activity. Yashenko v. Harrah's N.C. Casino Co., LLC, 446 F.3d 541, 551 (4th Cir.2006) (citing Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir.1998)). Once the plaintiff states a prima facie case, the burden shifts to the defendant to provide a legitimate, non-retaliatory reason for the adverse action. Anderson v. G.D.C, Inc., 281 F.3d 452, 458 (4th Cir.2002). If the defendant successfully articulates a legitimate, non-retaliatory reason, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was not the employer's true reason, but rather, is merely a pretext for unlawful retaliation. Id.; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). At this point, the burden on the plaintiff to prove pretext merges with his ultimate burden of showing that some form of retaliation led to the adverse action against him. See Tx. Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
For purposes of the present motion, Defendants assume without conceding that Plaintiff's interactions with Healy in August of 2017 regarding his use of FMLA leave constitutes protected activity and that the various adverse actions identified by Plaintiff are sufficiently adverse to meet the second prong of the prima facie test. However, Defendants argue that all of Plaintiff's claims fail on the third prong-causal connection.
“[A] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity.” Price v. Thompson, 380 F.3d 209, 213 (4th Cir.2004). However, the temporal nexus between two events cannot provide proof of causation unless the “temporal proximity between an employer's knowledge of protected activity and an adverse employment action” was “very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (internal quotation marks omitted). Plaintiff was on FMLA leave from August of 2017, until October10, 2017. As set forth above, Plaintiff identifies the following adverse actions:
Plaintiff's security infraction for sending UCNI to an unsecure fax line on October 20, 2017; Defendant Centerra's investigation into and temporary removal of Plaintiff from HRP on October 23, 2017, for social media statements made while out on FMLA; Plaintiff's disciplinary action for failing to identify an uncleared individual entering a secure area on November 13, 2017, the actual write up for which has never been produced; Plaintiff's disciplinary action for accidental damage to the trim of a government vehicle on November 14, 2017; Plaintiff's interrogation in connection with a reported scratch on the side of Defendant Healy's car on February 27, 2018; Plaintiff's disciplinary action for failure to report to a scheduled training for which he never received notice; Plaintiff's temporary removal from HRP for reporting sick to an overtime shift on October 6, 2018, and the resulting corrective action issued on October 17, 2018; and Defendant Shoup's and Defendant Herring's interviews with the DOE psychologist prior to Plaintiff's supplemental evaluation on December 5, 2018.Pl. Am. Resp. p. 21 (ECF No. 46). In Clark, the Supreme Court did not define “very close, ” but cited cases where adverse employment action was taken three months and four months after the protected activity as insufficient proximity. Clark, 532 U.S. at 273-74 (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997)). Although there is no “bright temporal line, ” the Fourth Circuit has held that “[e]ven a mere ten-week separation between the protected activity and termination ‘is sufficiently long so as to weaken significantly the inference of causation between the two events.'” Perry v. Kappos, 489 Fed.Appx. 637, 643 (4th Cir.2012) (quoting King v. Rumsfeld, 328 F.3d 145, 151 n. 5 (4th Cir.2003)). The first adverse action occurred less than two months after Plaintiff began his FMLA leave and within ten days of him returning from said leave. Although the length of time between the protected activity and the subsequent adverse actions increases, even in the face of a lengthy passage of time, other evidence of retaliation may suffice to show a causal connection. See Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir.2007); Causey v. Balog, 162 F.3d 795, 803 (4th Cir.1998).
In the absence of temporal proximity, courts consider other circumstances when determining if a plaintiff has pled a prima facie case. Most frequently, courts look to ongoing retaliatory animus or intervening antagonism during the period between the protected activity and the adverse action in order to find a causal connection where there is a lack of temporal proximity ... These cases tend to involve regular acts showing animus or antagonism, coupled with valid reasons why the adverse action was not taken immediately. For example, in Lettieri, the Fourth Circuit found a causal connection where the defendants discussed ways to fire the plaintiff and stripped her of a significant portion of her job responsibilities shortly after she filed a complaint, which enabled her employer to terminate her employment five months later based on the redundancy of her reconstituted role.Hart v. Hanover Cty. Sch. Bd., 2013 WL 1867388, at *5 (E.D.Va. May 2, 2013), aff'd, 547 Fed.Appx. 298 (4th Cir.2013). Here, the adverse actions occurred with regularity following Plaintiff's use of FMLA leave. This, coupled with the fact that Plaintiff only received one disciplinary action for at least twelve years prior to his use of FMLA leave, is sufficient to create an issue of fact with respect to the causal connection required to establish a prima facie case of retaliation. Therefore, the burden shifts to Defendants to produce legitimate, non-retaliatory reasons for the adverse actions, and Plaintiff maintains the ultimate burden of establishing that the reasons were pretext for a retaliatory reason. Each alleged adverse action is discussed below.
1. October 2017 security infraction for faxing UCNI documents
It is undisputed that Plaintiff faxed Healy post rotations marked with the words “Unclassified Controlled Nuclear Information, ” also referred to as “UCNI, ” over an unsecure fax line from offsite. Pl. Dep. 36, 57, Ex.9 (ECF No. 46-7); Healy Dep. 51-57 (ECF No. 46-9). Centerra's Security Order 2-108 provides “UCNI or OUO [Official Use Only] may be discussed or disseminated over an unprotected phone or telecommunications circuit onsite only. … UCNI must be protected by encryption when transmitted offsite by telecommunications services, (i.e., telephone, FAX, etc.), ….” Pl. Dep. Ex. 11 (ECF No. 46-7). Plaintiff underwent yearly training that covered requirements for transmitting UCNI documents. Pl. Dep. 54-55, Ex. 12 (ECF No. 46-7); Healy Dep. 52-53 (ECF No. 46-9). Though Plaintiff and Healy dispute whether Healy knew what Plaintiff intended to fax to him when he gave Plaintiff the fax number, Pl. Dep. 47, 58-59 (ECF No. 46-7), Healy Dep. 49-50 (ECF No. 46-9), Plaintiff does not dispute that he knew that doing so violated federal regulations and Centera policy. Pl. Dep. 57-58 (ECF No. 46-7). Further, it is undisputed that Healy was required to report the incident. Healy Dep. 57 (ECF No. 46-9). The matter was investigated by John Arnold, a Centerra employee appointed by DOE to investigate security incidents involving Centerra employees, Pl. Dep. Ex. 10 (ECF No. 46-7), who concluded that “[t]he root cause of this security incident was determined to be that Centerra-SRS SPO II Tracy Palmer did not encrypt the facsimile containing the Area Post Rotation Form marked UCNI and did not send it on a secure FAX machine.” Pl. Dep. Ex. 10 (ECF No. 46-7). Arnold further reported that Plaintiff was not disciplined for the incident, but was issued a “security infraction” recording that the incident occurred. Pl. Dep. 58, Ex. 10 (ECF No. 46-7). Plaintiff fails to show that Healy reported the incident in retaliation for Plaintiff's use of FMLA leave or that Arnold knew of Plaintiff's use of FMLA leave. The Fourth Circuit has “consistently required proof of a decisionmaker's knowledge of protected activity to support a [ ] retaliation claim.” Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 124 (4th Cir. 2021). Because Plaintiff fails to present evidence sufficient to create an issue of fact as to pretext, summary judgment is appropriate as to this alleged adverse action.
2. Temporary removal from HRP for social media posts
Following the end of the strike in October 2017, Plaintiff was temporarily removed from HRP due to social media posts he made during the strike. Pl. Dep. 82 (ECF No. 46-7); Social Media Documents (ECF No. 34-5). Plaintiff made Twitter posts calling into question the Site's security status during the strike. Social Media Documents (ECF No. 34-5). As a result he was interviewed by Centerra's personnel security officer, Al Ward. In the interview, Plaintiff claimed his statement that “That place [the Site] is unsecure w the people they have guarding it” meant that “anyone can go to the Badge Office and get a day pass and come on site.” Social Media Documents (ECF No. 34-5). Ward noted that public access to the Site was limited to organized tours or individuals with business at the Site and, accordingly, found Plaintiff's statements were “vague and contradictory for someone that should know the actual process for gaining entry to the site.” Social Media Documents (ECF No. 34-5). Ward concluded Plaintiff “doesn't pose a threat or risk, but individually made a bad decision by speaking out.” Social Media Documents (ECF No. 34-5). As a result, Ward temporarily removed Plaintiff from HRP, noting that Plaintiff's “return to the HRP will be decided based on DOE-SR's review and interview if needed.” Social Media Documents (ECF No. 34-5). Centerra's social media policy prohibited “the release of any information concerning our equipment, weapons, tactics, or operational methods or readiness to the public” without first having the information reviewed. Social Networking Sites Policy Statement (ECF No. 34-6). Plaintiff fails to show that his temporary removal from HRP was not because of his social media posts but was pretext for a retaliatory reason. There is no evidence in the record that Ward knew Plaintiff had taken FMLA leave. See Roberts, 998 F.3d at 124. Therefore, summary judgment is appropriate.
3. Damage to trim of government vehicle
Plaintiff was written up in November 2017 for tearing a piece of trim off a DOE-owned van and failing to report it to his lieutenant. Pl. Dep. 68-69, Ex. 20 (ECF No. 46-7). According to Plaintiff, he did not report it because he was running late for weapons qualification and needed to get to the range. Pl. Dep. 69 (ECF No. 46-7). Lt. Leonard conferred with another lieutenant and decided the incident needed to be reviewed. Pl. Dep. 69-70 (ECF No. 46-7). Capt. Mark Thornsbury issued Plaintiff the discipline for the incident. Pl. Dep. 69, Ex. 20 (ECF No. 46-7). Plaintiff fails to show that either Lt. Leonard or Capt. Thornsbury knew about Plaintiff's having used FMLA leave, Roberts, 998 F.3d at 124, or otherwise show that the write-up was issued in retaliation for his use of the leave. Therefore, summary judgment is appropriate as to this alleged adverse action.
4. Discipline for missing training in June 2018
On June 19, 2018, Plaintiff was disciplined for failure to report for scheduled training. Shoup Dep. Ex. 2 (ECF No. 46-12). The parties dispute whether Plaintiff received notice of the training scheduled on June 19, 2018. Plaintiff testified in this action and at a DOE hearing that he never received notice of the training. Pl. Dep. 167-68 (ECF No. 46-7); DOE Hearing Tr. 22-25 (ECF No. 46-4). Additionally, it was stipulated at Plaintiff's DOE hearing that Centerra did not have the requisite paperwork that would indicate that Plaintiff had been notified of the training. Pl. Dep. Ex. 43 (ECF No. 46-8). However, Defendant Shoup testified that Plaintiff “admitted to getting the notification form and signing it, and then a couple of days later he changed his story and he said he never got notified.” Shoup Dep. 45 (ECF No. 46-12). Plaintiff was written up, and the write-up was issued by Gideon Hornung, the captain in K-area. Pl. Dep. 84, Ex. 25 (ECF No. 46-7); Shoup Dep. 42 (ECF No. 46-12). There is no evidence in the record that Hornung had any knowledge of Plaintiff's use of FMLA in August of 2017. While Shoup was aware of Plaintiff's use of FMLA leave, he did not make the decision to issue the write up. Shoup Dep. 28-29, 42 (ECF No. 46-12). Further, knowledge of the protected activity alone is insufficient to show that any subsequent adverse action following the protected activity was done in retaliation, especially where, as here, approximately ten months had passed between the protected activity and the adverse action. Thus, Plaintiff fails to show that the write up was issued in retaliation for his protected activity and summary judgment is appropriate as to this claim.
5. Discipline for not working overtime shift on October 6, 2017
As discussed above, On October 6, 2018, Plaintiff was reported for “aberrant behavior” and temporarily removed from HRP after reporting sick to an overtime shift. Shoup Dep. Ex. 9 (ECF No. 46-12). Plaintiff testified that when he arrived at work on October 6, 2018, he was exhausted from having already worked sixty-nine hours that week. Pl. Dep. 86 (ECF No. 46-7). Plaintiff did not call out sick before leaving his house because he had hoped drinking energy drinks on his way to work would be sufficient; however, once at work, Plaintiff realized he was beginning to feel ill and could not safely work his shift. Pl. Dep. 94 (ECF No. 46-7); Herring Dep. Ex. 3 (ECF No. 46-13). Therefore, instead of clocking in, Plaintiff went to the lieutenants' station, as a courtesy, to notify them in person that he was taking a sick day. Pl. Dep. 94 (ECF No. 46-7); Herring Dep. Ex. 3 (ECF No. 46-13). In that same conversation, Lieutenant Buchanan informed Plaintiff that he had been moved from his original post, and Plaintiff, Buchanan, and Defendant Herring had a brief exchange about the rotation. Pl. Dep. 86 (ECF No. 46-7); Herring Dep. Ex. 3 (ECF No. 46-13). Plaintiff then left for the day, but while he was still in the parking lot, Plaintiff called back to the lieutenants' station and informed Defendant Herring that he was calling out sick, since the CBA technically required a phone call and Plaintiff wanted to have a record of that call. Herring Dep. 60 (ECF No. 46-13); Pl. Dep. 169-70 (ECF No. 46-7). Plaintiff denies leaving work because he did not like his rotation. Pl. Dep. 102; Herring Dep. Ex. 3 (ECF No. 46-13).
Defendants assert that Plaintiff' “did not appear ill as he reported and departed from work” and that Plaintiff's “refusal to work was simply because he did not want to work the modified post rotation.” Shoup Dep. Exs. 5-6 (ECF No. 46-12). According to Defendant Herring, Plaintiff came to the lieutenants' station twice on October 6, 2021-the first time to question and complain about his shift assignment and a second time, several minutes later, to inform them he was going home. Herring Dep. 60 (ECF No. 46-13). Defendant Herring also maintains that Plaintiff did not claim he was sick until he called from the parking lot to officially call out sick. Herring Dep. 87 (ECF No. 46-13).
Lt. Buchanan contacted the site commander, Capt. Tod Sawyer, to notify him of the situation and that they were down two posts. Herring Dep. 69-70 (ECF No. 46-13). Capt. Sawyer instructed Lt. Buchanan to email him an explanation and provide statements from him and Lt. Herring. Herring Dep. 69-70 (ECF No. 46-13). As a result of the incident, Plaintiff received a Notice of Pending Disciplinary Action, charging him with potentially having violated several of Centerra's work rules. Pl. Dep. Ex. 32 (ECF No. 46-8). Plaintiff had a meeting on the charges with the director of his division, Bill Frischmann, and the union and Centerra agreed to resolve the charges with issuance of a corrective counseling which was issued by Maj. Shoup. Shoup Dep. 71, Ex. 5 (ECF No. 46-12).
An issue of fact exists at to what actually transpired on October 6, 2018. However, there is no evidence in the record that anyone involved in the events of that day, Lt. Buchanan, Lt. Herring, or Capt. Sawyer, had any knowledge of Plaintiff's FMLA leave in August of 2017. Further, the ultimate decision to issue the corrective counseling was reached by Bill Frischmann and Plaintiff's union representative. There is likewise no evidence in the record that Frischmann had any knowledge of Plaintiff's FMLA leave such that a jury could determine that he was issued the corrective counseling in retaliation for taking such leave. Though Maj. Shoup issued the initial Notice of Pending Disciplinary Action, it was issued as a result of information relayed by Lt. Buchanan, Lt. Herring, and Capt. Sawyer. Likewise, though Maj. Shoup issued the corrective counseling, the decision to do so was may by Frischmann. Therefore, though Maj. Shoup was aware of Plaintiff's FMLA leave, he did not make any ultimate decisions regarding the adverse action. Thus, the evidence in the record is insufficient to show that the reasons for the corrective counseling with respect to Plaintiff's failure to work on October 6, 2018, were pretext for a retaliatory reason. See, e.g., Hill v. Lockheed-Martin Logistics Mgmt, Inc., 354 F.3d 277, 298-299 (4th Cir. 2004) (plaintiff could not establish retaliation with reports allegedly motivated by retaliatory animus of lower-level supervisor where actual decisionmaker personally reviewed each report prior to taking disciplinary action).
The October 6, 2018, incident and subsequent corrective counseling also occurred following Plaintiff's assertion of his FLSA rights in July 2018, regarding Plaintiff's claims that Shoup changed his time sheet. However, his claim of retaliation based upon this protected activity fails for the same reason in that the information regarding the incident was relayed by individuals who had no knowledge of Plaintiff's FLSA complaint to Shoup and the ultimate decision was made by an individual with no knowledge of the complaint. Therefore, summary judgment is appropriate based on the adverse actions resulting from the incident of October 6, 2018.
6. Interviews with the DOE psychologist in December of 2018
After the decision was made not to issue Plaintiff formal discipline, but only a corrective counseling, Centerra's Personnel Security Officer, Al Ward, sought Plaintiff's reinstatement to HRP. Pl. Dep. Ex. 34 (ECF No. 46-8), DOE requested that Ward provide some basis for believing that concerns about Plaintiff's reliability had been mitigated. Pl. Dep. Ex. 34 (ECF No. 46-8). Following DOE's request, Ward arranged for Dr. Daniels to interview Maj. Shoup and anyone he believed relevant to speak with Dr. Daniels about Plaintiff's conduct. Ward Email Correspondence (ECF No. 34-7). Maj. Shoup was the only one with knowledge of Plaintiff's protected activities that was asked by Ward to meet with Dr. Daniels. Shoup Dep. 84 (ECF No. 46-12). Dr. Daniels also met with Lt. Herring and Capt. Sawyer. Herring Dep. 94-95 (ECF No. 46-13); Daniels Dep. 32 (ECF No. 46-14). Though Dr. Daniels ultimately concluded that he could not recommend Plaintiff for re-instatement in the HRP, that decision was based on a multitude of considerations, including statements from other individuals with knowledge of the October 6, 2018, incident, his own evaluations of Plaintiff, and Plaintiff's past performance issues. Daniels Dep. Ex. 3 (ECF No. 46-14). Thus, even if Maj. Shoup had some retaliatory motive in providing whatever information he provided to Dr. Daniels during the interview, Plaintiff fails to show that Dr. Daniels would not have reached his ultimate conclusion not to recommend reinstatement to the HRP but-for Maj. Shoup's interview. Accordingly, Plaintiff's claims of retaliation with respect to Major Shoup's interview with Dr. Daniels is without merit and summary judgment is appropriate.
In sum, the evidence in the record is insufficient to show that any of the reasons given by Defendants for the adverse actions taken against Plaintiff following his FMLA leave and his FLSA complaint were pretext for retaliation. Plaintiff himself admitted to Dr. Daniels that “he had been unusually ‘thoughtless' since his wife's injury” in 2016 and that “his recent write-ups generally involved failure to follow policies and procedures, ” which was “not representative of his work behavior prior to 2016.” Daniels Dep. Ex. 3 (ECF No. 46-14). For these reasons, summary judgment is appropriate on Plaintiff's causes of action under the FMLA and the FLSA.
Though Plaintiff also mentions disciplinary action for failing to identify an uncleared individual entering a secure area on November 13, 2017, and his interrogation in connection with a reported scratch on the side of Defendant Healy's car on February 27, 2018, as adverse actions, he admits that he never actually received any write up for the uncleared individual and fails to show how his questioning regarding the scratch rises to the level of an adverse action.
D. Supplemental Jurisdiction
Plaintiff also alleges state law causes of action for defamation and intentional infliction of emotional distress. Title 28 U.S.C. § 1367(c)(3) provides, in pertinent part, “[t]he district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction....” The Fourth Circuit has recognized that “trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.1995) (holding district court did not abuse its discretion in declining to retain jurisdiction over the state law claims). See also, e.g., United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Revene v. Charles County Comm'rs, 882 F.2d 870, 875 (4th Cir.1989). In determining whether to retain jurisdiction, courts consider “the convenience and fairness to the parties, existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan, 58 F.3d at 110. Here, the undersigned recommends that the district judge decline to retain supplemental jurisdiction over Plaintiff's state law claims. There are no issues of federal policy underlying the remaining state law claims. In addition, comity favors remand since the remaining claims are quintessential state law questions. In United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court cautioned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a superfooted reading of applicable law. . . . if the federal law claims are dismissed before trial ... the state claims should be dismissed as well.” Accordingly, should the district judge decline the recommendation with respect to waiver or security clearance concerns and accept the recommendation with respect to Plaintiff's federal claims, it is recommended that the court decline to exercise jurisdiction over the remaining state law claims.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion for Summary Judgment (ECF No. 34) be granted, and should the district judge decline the recommendation with respect to waiver or security clearance concerns and accept the recommendation with respect to Plaintiff's federal claims, the court decline to exercise supplemental jurisdiction over Plaintiff's state law claims, and this case be dismissed in its entirety.