Robinson v. Radian, Inc.

Page 617

624 F.Supp.2d 617

Andra T. ROBINSON, Plaintiff, v. RADIAN, INC., a/k/a Radian, Inc. of Virginia, d/b/a DRS Technical Services, Inc., Defendant.

No. 07-10421.

United States District Court, E.D. Michigan, Southern Division.

April 24, 2008.

COPYRIGHT MATERIAL OMITTED

Deborah L. Gordon, Bloomfield Hills, MI, for Plaintiff.

Mary K. Deon, Robert C. Ludolph, Pepper Hamilton, Detroit, MI, for Defendant.

OPINION & ORDER

SEAN F. COX, District Judge.

In this whistleblower action, Plaintiff asserts two claims against his former employer: 1) a claim that his former employer retaliated against him for being "about to report" suspected violations of law to a public body in violation of Michigan' Whistleblower Protection Act ("WPA"); and 2) a claim that his former employer retaliated against him in violation of Michigan's public policy for his internal reporting and refusal to violate the law. The matter is currently before the Court on Defendant's Motion for Summary Judgment. The hearing was originally scheduled for January 24, 2008, but was adjourned because the Court requested supplemental briefing to address issues not addressed in the parties' initial briefs. After the requested supplemental briefing, the Court heard oral argument on March 20, 2008.

For the reasons below, Defendant's Motion for Summary Judgment shall be GRANTED IN PART AND DENIED IN PART. The motion shall be granted with respect to Plaintiff's claim under Michigan's WPA. The motion shall be granted in part and denied in part with respect to Plaintiff's public policy claim in that the Court concludes that Plaintiff cannot maintain a public policy claim based upon his internal reporting, but that Plaintiff can proceed with his public policy claim that he was retaliated against for refusing to violate the law.

BACKGROUND

A. Procedural Background:

Plaintiff Andra T. Robinson ("Plaintiff" or "Robsinson") filed this action against Defendant Radian, Inc., a/k/a Radian, Inc. of Virginia, d/b/a DRS Technical Services¹ ("Defendant" or "Radian") on January 26, 2007. Plaintiff's claim arises out of his employment relationship with Defendant, his previous employer. Defendant is a corporation which provides engineering and technical services to military and commercial customers. (Pl.'s Compl. at ¶ 8; Def.'s Answer at ¶ 8). Plaintiff began working for Defendant on or about March 7, 2005, as a senior contracts administrator. (Id. at ¶ 9). Plaintiff's First Amended Complaint asserts the following claims against Defendant: "Michigan's Whistleblower's Protection Act" (Count I); and "Retaliation in Violation of Public Policy (`Public Policy Tort')" (Count II).

The Court originally scheduled Defendant's Motion for Summary Judgment to be heard on January 24, 2008, but adjourned the hearing date and issued an order allowing supplemental briefing to address a threshold issue regarding Plaintiff's WPA claim that was raised by authorities cited by Plaintiff, but not addressed by either party in their initial briefs.

B. Factual Background:

Plaintiff is a member of a minority group and a Vietnam Veteran. (Pl.'s Aff. at ¶ 4).

Defendant is a government defense contractor, with operations throughout the United States. A significant portion of the work performed by Defendant at its Troy, Michigan facility relates to providing armor for vehicles engaged in support of the Iraq war. (Def.'s Statement of Material Facts Not in Dispute at ¶ 1, and Pl.'s Resp. to same). Several of Defendant's employees had previously worked with for the Army's Tank Automotive Command ("TACOM") before coming to work for Defendant. (See Pl.'s Br. at 2).²

In the Fall of 2005, Defendant's armor work for the Department of Defense had increased as a result of news stories concerning the lack of armored protection for American troops. (Def.'s Statement of Material Facts Not in Dispute at ¶ 2, and Pl.'s Resp. to same). Because the workload in Defendant's Troy facility was increasing, and representatives of TACOM advised Defendant's leadership that they thought it would be to Defendant's advantage to have a senior contracts person in the Troy facility, a new position was created. (Mailey Dep. at 32-33). Plaintiff was hired to fill that newly created position at the Troy facility on March 7, 2005. (Def.'s Statement of Material Facts Not in Dispute at ¶ 4, and Pl.'s Resp. to same; Ex. 3 to Def.'s Br.; Ex. D to Pl.'s Br.) Defendant's documents indicate that Plaintiff was hired at a salary that was $10,000.00 over the requisition and that Plaintiff had "superb qualities" and "really hit it off w/Oughton & Macik." (Ex. D. To Pl.'s Br.).

Plaintiff testified that as a contract administrator, it was his job to make sure that the company was in compliance with all contract requirements and with regulations. (Pl.'s Dep. at 72-74). That is, it was his responsibility to "identify risks and eliminate" those risks for the company. (Id.). Plaintiff believed that his responsibilities included dealing with EEO compliance issues. (Id. at 72-73). Mailey also considered that issue within Plaintiff's job responsibilities. (Mailey Aff. at ¶ 17).³

At the time that Plaintiff was hired, Hugh McLeod ("McLeod") was the Director of the Troy facility, but he was later replaced by John Macik ("Macik"). Plaintiff supported McLeod and Macik on the programs being sought by and awarded to the Troy facility. (See Macik Affidavit). Plaintiff's immediate supervisor, however, was Jerry Mailey ("Mailey"), the Director of Contracts, who was based in Virginia. (Ex. 3 to Def.'s Br.; Mailey Affidavit, attached as Ex. 4 to Def.'s Br.).

Mailey gave Plaintiff an overall performance rating of "fully meets expectations" on his 90 Day Review. (Ex. 7 to Def.'s Br.). Plaintiff testified that Mailey did not meet with Plaintiff at that time, but rather, sent him a copy of the document. (Pl.'s Dep. at 66).

Mailey states that since he was in Virginia, at the time of Plaintiff's first annual performance review in January 2006, he sought input regarding Plaintiff's performance from the directors at the Troy facility whom Plaintiff was hired to support. (Mailey Affidavit). In a letter dated January 20, 2006, McLeod stated the following:

Attached are summaries of incidents that reflect Andra Robinson's inability to perform at the level for which he was hired. They illustrate the lack of qualities I expect from someone of his purported background, experience and overall qualifications, particularly as they pertain to the support Land Systems Division needs.

These quality shortfalls include substantive contribution, quality work, precise and accurate products, initiative and assuming action ownership, ability to perform complex contracting actions, sense of urgency and sensitivity to deadlines, team play, willingness to put in extra time to complete actions, and so forth.

In my view, Andra simply shirks responsibility and work. He appears to be attempting to get by with doing the absolute minimum and only the simple and routine. My impression is that he wants to be an action coordinator and reviewer, an information conduit. He does not want to be a doer.

Andra is very deficient in his willingness and ability when it comes to the more complex, and typically urgent tasks. He always has an explanation for his not accomplishing these tougher, time sensitive tasks, which usually involve someone else purportedly not doing supporting work.

I cannot comment on the state of Andra's basic contracting work requirements such as record keeping. And no one from Radian HQ has visited since he was hired to check on how well he is performing in those areas. However, I am told there may be deficiencies there. Andra's office door is closed at least half of almost every day. He comes in early, about 0700, and leaves early, between 1500 and 1600. And on many a Friday, he leaves at noon.

Andra's KBR contract action failure was the culmination of my frustration with his inability to perform. I now have no confidence in his ability to perform in the future any of the duties for which he was hired to perform.

I have sent emails to you from time to time addressing Andra's poor performance. You should refer to those as well as the attached in completing his annual performance appraisal.

Recommend that you give Andra his appraisal in person in Troy. That would enable you to check into the quality of his basic contract operational requirements. Further, that would enable me to sit in on the appraisal should you so desire.

(Ex. 4 to Def.'s Br.). Attached to the letter were more detailed criticisms of Plaintiff's performance. (Id.).⁴

The record also indicates that Plaintiff completed a self-appraisal in January of 2006 which, in a section relating to relationships with others, Plaintiff indicated "overall okay, I have found some coworkers not open to correction on contract or compliance matters." (Mailey Dep. at 167-68). When asked questions relating to concerns that he may have discussed with Plaintiff on that topic, Mailey testified as follows:

Q. Do you know what he was referring to?

A. I think it's—part of it would be what you were just talking about, about the hiring process.

Q. Okay. Some of the questions we covered earlier with regard to Mr. Macik?

A. Yes.

Q. Macik?

A. Yes.

Q. Okay.

A. And the other thing is the program folks up there to a large extent were used to doing their own thing and didn't necessarily like anybody in contracts saying, well, yeah, you're not supposed to say that, do that, go there, that sort of thing. But that's part of our job, is to tell people how to follow the rules.

Q. Okay.

A. Now—and—and—and I have had— you know, I did have discussions with Andra about stuff like that about, yes, it's your job to tell them sometimes things that they might not want to hear—

Q. Right.

A. —and that's okay.

(Mailey Dep. at 168-70).

During January 2006, Plaintiff concluded that Defendant was not in compliance with certain federal statu...