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Mervine v. Plant Engineering Services, LLC

United States Court of Appeals, Eighth Circuit

June 9, 2017

Ralph Mervine Plaintiff- Appellant
v.
Plant Engineering Services, LLC Defendant-Appellee

          Submitted: March 9, 2017

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.

          WOLLMAN, Circuit Judge.

         Ralph Mervine appeals from the district court's[1] order granting summary judgment in favor of his former employer, Plant Engineering Services, LLC (Plant Engineering), on his claim of retaliatory discharge in violation of the Minnesota Whistleblower Act (MWA). See Minn. Stat. § 181.932. We affirm.

         "We review a grant of summary judgment de novo and will affirm when 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Grant v. City of Blytheville, 841 F.3d 767, 770 (8th Cir. 2016) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)). We view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Torgerson, 643 F.3d at 1042. The nonmoving party "may not rely on allegations or denials, " however, but must substantiate his allegations with "sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation [or] conjecture." Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). There is no genuine issue for trial if "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Torgerson, 643 F.3d at 1042. We relate the facts in light of these standards.

         Plant Engineering provides engineering, project-management, and support services to clients nationwide. It has provided engineering services to Flint Hills Resources (Flint Hills) at its Pine Bend refinery in Rosemount, Minnesota (Pine Bend), for several years. Mervine, an experienced professional engineer, began working for Plant Engineering as a project manager in May 2012. In January 2013, Plant Engineering interviewed Mervine for the position of Pine Bend site manager. Mervine was informed during the interview that Pine Bend was a difficult assignment, that Flint Hills's increased focus on timely project completion was affecting Plant Engineering employees' morale, and that Flint Hills was currently unhappy with the services Plant Engineering employees were providing at Pine Bend. In April 2013, Mervine accepted Plant Engineering's offer. Forty-eight of Pine Bend's 225 projects were more than two weeks behind schedule when Mervine began his employment there.

         Mervine understood that his primary task was to accommodate Flint Hills's demands, as well as Bill Hicks's, Plant Engineering's manager for the Flint Hills account. Both Plant Engineering and Flint Hills were initially satisfied with Mervine's performance. In late 2013, Mervine began to have problems with Shaina Botka, a Plant Engineering project manager who reported directly to Mervine and who Mervine believed had become frustrated with Flint Hills's repeated changes to her project schedules. In a December 13 email, Botka claimed that Mervine had told her in a meeting that he needed to "clean house" and that he could fire her and another employee. Botka understood Mervine's comments to be a threat to her employment and informed Mervine in the email that she intended to report his conduct to Jason Kreuiter, Plant Engineering's Pine Bend human resources (HR) representative. Botka also emailed Kreuiter to ask if she could discuss some concerns with him. Later the same day, Mervine forwarded to Kreuiter the email Botka had originally sent to him and asked Kreuiter to call the following week to discuss Botka. Several follow-up emails were sent to Kreuiter over the next several days by both Mervine and Botka, each of whom expressed professional and personal concerns about the other. Kreuiter recognized the strained working relationship between Mervine and Botka, and he spoke with both parties about their concerns. In the meantime, Mervine received a positive annual performance review from his supervisor, Joe Picou, on December 9, 2013, and he received a raise and a promotion in January 2014. Picou, however, was not aware at that time that Botka or any of Mervine's other subordinates had concerns about Mervine.

         Also in late December 2013, Plant Engineering began planning for its annual contract negotiations with Flint Hills. In a conference call on the afternoon of January 28, 2014, Mervine, Hicks, Picou, and Kreuiter began to finalize plans for those negotiations. The parties intended to discuss the feasability of seeking an annual rate increase from Flint Hills to cover the cost of a quarterly bonus that Plant Engineering had been paying to certain employees in lieu of a discontinued retirement benefit. During the call, Picou instructed Mervine to request the proposed rate increase from Flint Hills. According to Mervine, however, Picou also directed him to conceal from Flint Hills that the proposed increase would be used to cover the cost of the quarterly bonuses. Mervine believed that the rate increase was improper because, as he understood the provisions of Plant Engineering's contract with Flint Hills, Plant Engineering was already collecting fees to cover the quarterly bonuses. Based on this understanding, Mervine stated during the conference call that he believed Picou's proposal constituted illegal double billing. Hicks immediately disagreed with Mervine's statement that the proposal was illegal, but he suggested that Flint Hills was unlikely to agree to a rate increase in any event. Picou, however, responded angrily to Mervine's remark, stating that he did not appreciate Mervine's accusation of illegal behavior, and abruptly ended the conference call after this exchange.

         Hicks later told Mervine that Picou was upset about Mervine's comments during the call and that "it w[ould] be a long time before [Picou] [got] over" the incident. A few days after the conference call, Picou called Mervine to apologize for his "outburst" during the call. Picou reiterated, however, that he resented having his ethics questioned. Picou suggested that Mervine had misunderstood what Picou had asked him to do and that the two should meet so Picou could explain the billing and financial terms of Plant Engineering's contract with Flint Hills. Despite Mervine's stated misgivings about the legality of the proposed rate increase, he thereafter agreed to approach Flint Hills to negotiate the increase, writing in a February 3 email to Picou that he was "working on a plan to recover these . . . payments." Mervine had no further discussions with Picou or Flint Hills about the rate increase.

         On the morning of January 28, Plant Engineering employee Rick Panzer emailed Kreuiter, asking to discuss "a situation" at Pine Bend. In a phone call later that day, Panzer expressed concerns to Kreuiter about employee morale at Pine Bend, the overall environment at the site, and Mervine's mistreatment of Botka. Because Panzer was "having trouble formulating his thoughts on the call, " Kreuiter sent him an email the following morning, asking him to "summarize any thoughts, experiences or situations" he had "observed or been told about regarding [Mervine's] behavior." Kreuiter also received a brief email from Botka on the morning of January 29, which expressed her continued concern about her job security. As he had done with Panzer, Kreuiter responded by asking Botka to summarize her concerns in an email.

         Panzer's January 29 follow-up email to Kreuiter stated that although the situation at Pine Bend had recently improved, Mervine continued to display a lack of professionalism and a limited knowledge of the engineering process that was negatively impacting Plant Engineering's relationship with Flint Hills. The email stated that Mervine had dozed off, made irrelevant and sarcastic comments, and undermined Plant Engineering employees during meetings with Flint Hills representatives. He had abruptly left meetings when his input was needed and had made statements that caused Plant Engineering employees to question their job security. Further, the email stated that Mervine had discussed private employee information in the presence of others and had refused to allow Plant Engineering employees to request changes to Flint Hills project schedules, which Panzer worried would result in missed deadlines. Kreuiter forwarded Panzer's email to Picou and Hicks on January 30, concealing Panzer's identity and describing him only as a long-term employee with no reason to fabricate allegations about Mervine. Hicks responded by email the same day, suggesting that Kreuiter consider visiting Pine Bend to interview Plant Engineering employees in person. Kreuiter discussed the situation with Picou, and the two determined that Kreuiter should travel to Pine Bend and proceed as Hicks had suggested.

         On February 3, Botka sent Kreuiter a follow-up email, documenting in detail her numerous concerns with Mervine's performance. Botka wrote that Mervine had again threatened to fire her and had also threatened the jobs of two other Plant Engineering employees, Dave Mannello and Jim Carpenter. She acknowledged that she could not be fired without approval from Plant Engineering and Flint Hills, but stated that she had been excluded from new work projects for six months and was worried about her future with Plant Engineering. Botka complained that Mervine fell asleep, asked irrelevant questions, and undermined her during meetings with Flint Hills representatives. She also recounted a conversation with Mervine during her annual performance review in which Mervine revealed that he had caused a former employer to be sued for pregnancy discrimination. Botka interpreted Mervine's comment as an inappropriate inquiry into her family plans. Botka stated that Mervine's conduct had gone "far beyond acceptable professional behavior, and [would] potentially jeopardize this contract, and many people's jobs, including my own."

         The next day, Kreuiter received an email from another Plant Engineering employee, Charles Sandiford, who described an incident with Mervine that had occurred when Sandiford was leaving work the preceding day. As Sandiford was walking to his car after work, Mervine stopped him to ask about an "anti" holiday party that Sandiford and others in his work group had organized and attended on the same night of the company's previous-week holiday party. Mervine pressed Sandiford for details about the party and the other attendees, which Sandiford felt was "none of [Mervine's] business." Sandiford's email also stated that Mervine had "shown a lack of professionalism towards [him] and countless others" and had "made [Pine Bend] a hostile work environment." It expressed Sandiford's concern that Plant Engineering employees at Pine Bend were "at the end of their rope and [were] consider[ing] going elsewhere unless something gives." Later the same day, Kreuiter received an email from Sandiford's supervisor, Dave Mannello, who stated that Sandiford was very upset about the incident with Mervine. The email further stated that other employees had expressed similar ...


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