Whitaker v. U.S. Sec. Associates Inc.

774 F.Supp.2d 860

32 IER Cases 213

Thomas WHITAKER, Plaintiff,

v.U.S. SECURITY ASSOCIATES, INC., Defendant.

Case No. 10–10599.

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

March 31, 2011.

Shereef H. Akeel, Akeel & Valentine, Troy, MI, for Plaintiff.Brian A. Kreucher, Keller Thoma, Detroit, MI, Daniel L. Villaire, Jr., Thrun Law Firm, Bloomfield Hills, MI, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

Plaintiff Thomas Whitaker commenced this action in Wayne County Circuit Court on January 27, 2010, alleging that his employer, Defendant U.S. Security Associates, Inc., violated the Michigan Whistleblowers' Protection Act (“WPA”), Mich. Comp. Laws § 15.361 et seq. , by retaliating against him for notifying the federal Transportation Security Administration (“TSA”) about security concerns he had observed while performing his job as a security officer at Detroit Metropolitan Wayne County Airport (“DTW”).¹ Defendant removed the case to this Court on February 11, 2010, citing the parties' diverse citizenship. See 28 U.S.C. §§ 1441(a), 1332(a).

By motion filed on July 30, 2010, Defendant now seeks summary judgment in its favor on Plaintiff's claim under the WPA. In particular, Defendant contends (i) that Plaintiff did not engage in protected activity that could support his claim of retaliation; (ii) that, even if he engaged in protected activity, the record fails to establish the requisite causal link between this activity and the adverse employment actions he suffered; and (iii) that, even assuming Plaintiff has establish a prima facie case of retaliation, he has failed to show that Defendant's stated, non-retaliatory reason for disciplining him was a mere pretext for unlawful retaliation. In a response filed on August 20, 2010, Plaintiff challenges each of these contentions, arguing that he has produced sufficient evidence to permit his retaliation claim to proceed to trial. On September 3, 2010, Defendant filed a reply in further support of its motion.

Having reviewed the parties' briefs in support of and opposition to Defendant's motion, as well as their accompanying exhibits and the record as a whole, the Court finds that the relevant allegations, facts, and legal arguments are adequately presented in these written submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide Defendant's motion “on the briefs.” See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. This opinion and order sets forth the Court's rulings on this motion.

II. FACTUAL BACKGROUND

In June of 2007, Plaintiff Thomas Whitaker was hired as a security officer by Nation Wide Security, the predecessor-in-interest to Defendant U.S. Security Associates, Inc. In March of 2009, Plaintiff was transferred to a position at Detroit Metropolitan Wayne County Airport (“DTW”), where he worked pursuant to Defendant's contract with the Wayne County Airport Authority (“WCAA”) to provide security services at DTW. In his position at the airport, Plaintiff was responsible for responding to and investigating alarms at various buildings, as well as inspecting and patrolling the perimeter surrounding the Air Operations Area (“AOA”), the secure area of the airport that is restricted to authorized personnel.

A. Plaintiff's Reports of Security Concerns to His Supervisor and the TSA

At some point in the spring or summer of 2009, Plaintiff was alerted by maintenance workers to a possible security concern at one of the gates leading into the AOA. Specifically, the maintenance box for this gate was located on the “public,” non-secure side of the gate, and a switch inside the box allowed maintenance workers to open the gate and gain access to the AOA. ( See Plaintiff's Response, Ex. A, Plaintiff's Dep. at 167–70.) Upon learning of this issue, Plaintiff reported it to his immediate supervisor, Kevin Sanders, and he continued to raise this matter with Sanders over the remainder of 2009, but Sanders never informed Plaintiff of any action he took on this report. ( See id. at 191–93, 202.) Similarly, at some point later in 2009, Plaintiff raised this security concern with another immediate supervisor, Monica Gross, but he once again was never told of any follow-up actions Gross might have taken. ( See id. at 193–96, 202.) ²

On December 28, 2009, Plaintiff sent an e-mail to the Transportation Security Administration (“TSA”), advising this federal agency of his concerns regarding the publicly accessible maintenance box and another security-related matter, and asking for information relating to these concerns:

I have a few questions regarding vehicle checkpoint regulations at DTW. I have noticed at a gate leading to the AOA the main switch to open the gate i[s] on the public side. Meaning anyone can open the box and turn the switch to allow access to anyone. Second the vehicle checkpoints that are closed at night have the arm gates in a[n] up position. Giving anyone the opportunity to gain access with no guard to validate the I.D. I do have some questions on the regulations. If you could give me some information (contacts, or regulation and law titles) pertaining to my statements and question it would be appreciated.

(Plaintiff's Response, Ex. I, 12/28/2009 E-mail.) ³ On January 4, 2010, Plaintiff received a return e-mail from a TSA customer service manager, stating that the agency was “following up on your concerns for vehicle checkpoint regulations at” DTW, and asking Plaintiff to provide a telephone number so that a TSA regulatory security inspector could contact him “to address your concerns and any other questions you might have.” (Plaintiff's Response, Ex. J, 1/4/2010 Email.)

At some point in mid-January of 2010, Plaintiff met with TSA officials to discuss the matters raised in his December 28 e-mail and other security concerns. At this meeting, the officials provided Plaintiff with some documentation regarding the regulations he had referenced in his e-mail. The TSA officials advised Plaintiff that the agency would investigate his concerns, but Plaintiff has not heard anything further from the TSA since this interview. ⁴

B. Plaintiff's Discipline and Transfer Following His Report to the TSA

On January 11, 2010, the WCAA security director, Janet Baxter, met with Defendant's account manager for the DTW contract, Vickie Futch, and advised her of the e-mail Plaintiff had sent to the TSA.⁵ Baxter testified at her deposition that she told Futch that Plaintiff's e-mail “may be a violation” of the WCAA's contract with Defendant, and that, in her view, Plaintiff should have raised his concerns through “the appropriate chain of command.” (Baxter Dep. at 10.) Baxter further testified that she did not ask Futch to remove Plaintiff from his position at the airport, but instead brought the matter to Futch's attention to “giv[e] her the opportunity to take—to address the issue.” ( Id. at 10, 12.)

After her meeting with Baxter, Futch returned to her office and asked to speak with Plaintiff. During this January 11, 2010 meeting, Plaintiff explained the concerns that led him to send his e-mail to the TSA, and he told Futch that he had previously advised his two supervisors, Sanders and Gross, and two WCAA employees of his security concerns. Futch then handed Plaintiff a “Disciplinary Action Report” she had completed prior to their meeting, and asked him to complete the “Employee Statement” section of this report. ( See Plaintiff's Response, Ex. B, Futch Dep. at 57–58; see also Plaintiff's Response, Ex. K, Disciplinary Action Report.) Finally, Futch advised Plaintiff that he was suspended pending a further investigation of the matter. ( See Futch Dep. at 58.) ⁶

In the portion of the disciplinary report completed by Futch, she stated:

On December 29, 2009, [Plaintiff] contacted TSA's headquarters in Washington, D.C. to inquire about AOA checkpoint regulations. Not only are there posted orders, supervisors, managers and training materials available to answer [Plaintiff's] questions and concerns, but there is also information in his employee handbook that outlines the proper procedure and chain of command when an emp[loyee] is faced with concerns, questions or dilemmas. [Plaintiff] failed to utilize any of these resources readily available to him but chose to bypass us all and seek guidance from TSA headquarters regarding his job responsibilities and [...] ⁷ suspicion.

(Plaintiff's Response, Ex. K, Disciplinary Action Report.) ⁸ In the “Employee Statement” portion of this report, Plaintiff indicated that he disagreed with Futch's statement, and he wrote:

My inquir[y] had nothing to do with my job. I contacted TSA off duty. I was acting as a concerned citizen of the United States of America. My email did not violate any laws. No security sensitive information was given out per TSA investigator.⁹

(Plaintiff's Response, Ex. K, Disciplinary Action Report.)

The day after her meeting with Plaintiff, Futch contacted human resources manager Kellie Satterfield about this matter, and forwarded her a copy of the e-mail Plaintiff had sent the TSA and the disciplinary report Futch had prepared and issued to Plaintiff. Satterfield responded in an e-mail, stating:

Vickie, I think removal at client[']s request is good enough. I know [WCAA security director Janet Baxter] didn't state in words that she wanted [Plaintiff] removed, but I think her intent is clear. The reason for removal would be that he failed to follow the chain of command in reference to security procedures at his job location. The truth is as a private citizen he has the right to do what he did. As the employer, we have the right to remove him and reassign him to another location for any reason. Please put in your final reprimand that he must report for reassignment to the Southfield Office by 1/18/2010 IN PER SON.... Have his signature on that demand so there...