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Gilliland v. Contract Land Staff, LLC

United States District Court, D. North Dakota

October 9, 2019

Daniel Gilliland, Plaintiff,
v.
Contract Land Staff, LLC, and North Dakota Pipeline Company, LLC Defendants.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          CHARLES S. MILLER, JR., MAGISTRATE JUDGE

         Plaintiff alleges in his Second Amended Complaint he was a victim of age discrimination and retaliation after reporting allegations of age, race, and sex discrimination. He seeks relief under the ADEA,[1] Title VII, [2] and the NDHRA.[3] (Doc. No. 6).

         Before the court now is defendants' motion for summary judgment. Following the filing of the motion, defendant Contract Land Staff, LLC was dismissed based upon stipulation of the parties, leaving North Dakota Pipeline Company, LLC as the sole defendant.

         I. BACKGROUND

         Unless otherwise indicated, what follows is undisputed, has not been sufficiently controverted, or is claimed as fact by plaintiff and will be assumed true for purposes of the present motion.

         A. NDPL retains CLS for the Sandpiper Project

         In January 2012, Enbridge ( U.S.), Inc. and Enbridge Energy Partners, LP (collectively "Enbridge") entered into a Master Services Agreement ("MSA") with Contract Land Staff, LLC ("CLS"). The MSA set forth the general terms and conditions under which services would be performed by CLS on projects undertaken by Enbridge or its affiliated companies. (Doc. No. 26-2). CLS is a company that provides right-of-way procurement services, including supplying right-of-way agents and administrative staff. (Doc. Nos. 6, ¶ 2; 26-1, p. 56).

         Relevant here, the MSA provided that CLS would be an independent contractor, CLS would be responsible for the "specific manner, means, and methods" of services performed, and that any personnel furnished by CLS would not be employees of Enbridge or it affiliated companies unless specifically provided otherwise. The MSA also gave Enbridge and its affiliated companies the right to remove CLS personnel working on assigned projects as follows:

Company [Enbridge] reserves the right to demand the immediate removal and/or replacement of any member of Contractor Group [CLS] for non-compliance with the requirements of this Agreement or a Work Release Contract. Contractor shall immediately replace, at its own expense, any member of Contractor Group whose presence on Company's Premise's is detrimental to the operations thereon, as determined by Company in its sole but reasonable judgment.

(Doc. No. 26-2).

         Pursuant to the MSA, CLS was retained to perform work on Enbridge's Sandpiper Pipeline Project ("Sandpiper Project" or "Project")-a crude oil pipeline that was to span approximately 600 miles from western North Dakota to Wisconsin. (Doc.Nos. 6, ¶6; 26-2, p. 9). The parties agree that North Dakota Pipeline Company, LLC, an Enbridge affiliate, is the proper party defendant in this case, and it and Enbridge will be collectively referred to as "NDPL."

         B. CLS assigns plaintiff to the Sandpiper Project

         Plaintiff first began doing work for CLS in 1999, when he was around the age of sixty-one. Plaintiff worked on various CLS engagements across the country for different customers. If other work was not available upon plaintiff completing a Project, CLS would place him on furlough. (Doc. Nos. 6, ¶ 6; 26-1, p. 28).

         In March 2013, CLS assigned plaintiff to the Sandpiper Project as Project manager for the North Dakota segment. In making the assignment, CLS had plaintiff sign an employment agreement for the work to be performed on the Project. The employment agreement and a separate employment placement form both have CLS's name at the top and no one from NDPL was a party to signing either document. The employee placement form lists" Sandpiper" as the client and the employment agreement states that the duration ofplaintiff s employment on Project was "tbd" (i.e., to be determined). (Doc.No. 26-1, pp. 291-97). Consistent with the MSA, plaintiff understood NDPL was a customer of CLS, and CLS was an independent contractor to NDPL. (Id., pp. 36-37).

         Plaintiff was 74 years old when he began work on the Sandpiper Project. (Doc. No. 6, ¶ 6). Both the CLS Employee Handbook and a CLS right-of-way procedures handbook specific to the Project contained discrimination and harassment policies that directed CLS employees to report complaints having to do with these subjects to their direct supervisor and/or the CLS HR Department. (Doc. No. 26-1, pp. 43-48, 339-47). Plaintiff also attended a harassment training session within 30 days of his employment and annually thereafter; these were conducted by CLS. (Id.).

         As CLS's manager for the North Dakota segment, plaintiff oversaw a team of eight right-of-way agents, as well as a right-of-way supervisor. The team performed work associated with acquisition of Project rights-of-way. (Doc. No. 26-1, pp. 56-58). Plaintiff s management of his team included reviewing right-of-way agents' files for accuracy, approving agents' activity notes, and approving their timesheets. (Id., pp. 62-64, 194-97). Plaintiff performed most of his work on the Project out of a CLS-1 eased office located in Minot, North Dakota. (Id., p. 71).

         Plaintiff was salaried employee of CLS while working on the Project. He was paid $400 per day six days a week and also received a per diem. (Doc. No. 26-1, pp. 69-70).

         Plaintiff s direct supervisor initially was Matt Potter and later Liz Babcock-both CLS employees. Potter and Babcock, in turn, reported to Kerry Mai one, the CLS Officer-in-Charge of the Project. CLS's command structure was separate from that of NDPL. On the NDPL side, Mike Bradburn, a land supervisor, had immediate responsibility for right-of-way acquisition for the Project. Bradburn reported to John McKay, the Senior Manager for Land Services for U.S. Projects and the highest ranking NDPL official with active involvement in the right-of-way acquisition for the Project. (Doc. No. 26-2, pp. 16-17, 21). Directly under Bradburn was Darryl Sayler. He was the NDPL person with a physical presence in North Dakota and the NDPL person who interfaced directly with plaintiff s team on the North Dakota segment. (Id., pp. 25-26).

         In a deposition taken in this action, plaintiff described his management role as limited to overseeing the work of other CLS employees in obtaining permissions for survey work and easements. He denied being in charge of title work or having other administrative responsibilities for the North Dakota segment. (Id.) However, his position as Project manager for the North Dakota segment as well as the fact that at least one CLS person who performed some administrative work reported to him reasonably suggested to NDPL that he had responsibility for at least some of the administrative work on the North Dakota segment, if not all of it. Further, as discussed below, one of the complaints that NDPL had with respect to CLS's work on the Project had to with document inaccuracies, including on the North Dakota segment. John McKay, the highest-ranking NDPL person involved in the decision to have plaintiff removed from the Project as discussed in more detail in a moment, perceived plaintiff as responsible for at least some of the documentation that NDPL believed to faulty. According to McKay, CLS's right-of-way agents had "a major role in accurately documenting acquisition steps" and plaintiff was responsible for overseeing the right-of-way agents' work. (Doc. No. 26-2, p. 63).

         C. NDPL's dissatisfaction with CLS's performance

         Not long after commencement of right-of-way acquisition for the Sandpiper Project, NDPL took issue with CLS's performance. Initially, the problems centered on the Minnesota segment. In the spring of 2014, NDPL directed that CLS make management changes for work being performed on that segment, including seeking removal of plaintiff s Minnesota counterpart from his position as manager of CLS's work on the Minnesota segment. At the time he was 33 years old. (Doc. Nos. 26-2, p. 80; 41-1, p. 2).

         Another area of concern that developed had to do with use on the Project of MPROW, NDPL's right-of-way management software. Initially, CLS used its own right-of-way management software on the Project but, in the latter part of 2014, was directed by NDPL to transition to MPROW. (Doc. Nos. 26-2, p. 31-33). There is evidence there were incompatibilities in the two software systems and other problems that led to delays in MPROW s full implementation. The delays led to frustration on the part of NDPL's management, particularly Senior Manager McKay, who on May 29, 2015, threatened management changes if CLS did not get with the program, so to speak. (Doc.No. 26-2, pp. 133-34, 316-17). In an email sent to NDPL and CLS personnel, including plaintiff, McKay stated in part:

It's very disappointing to hear that the files, documents and reporting have been less than stellar on this project to date.
I don't want to hear anymore excuses about Enbridge systems or processes. Our systems and processes are working very well with other land providers on multiple other land providers on multiple other projects.
If I don't see some significant improvement, I will need to consider changes soon.

(Id.). There is evidence that NDPL's concerns over CLS's personnel's ability to master MPROW continued into the summer of 2015, including the fact that CLS had not been tracking valve sites in MPROW. (Doc. No. 26-4, pp. 17, 26).[4]

         In addition to NDPL's dissatisfaction with CLS's implementation of MPROW and the earlier Minnesota segment problems, NDPL had other concerns with respect to CLS's performance, including: (1) purported mistakes in filed easements and other documentation errors; (2) plat maps being attached to recorded easements in some instances (which NDDPL did not want, desiring the flexibility of a more general location for the pipeline as described in the body of the easement over a more specific location suggested by the maps) with examples of at least two such instances on the North Dakota segment being made a part of the record;[5] (3) record keeping and file organization; and (4) delays in getting checks to landowners. (Doc. Nos. 26-1, pp. 62-67, 83-86, 316-34, 343; 26-4, pp. 24-27; 29-1; 41-5, p. 5).

         In recognition of NDPL's dissatisfaction with CLS's performance with respect to at least some of these matters, CLS Supervisor Liz Babcock sent an email to NDPL's Mke Bradburn in June 2015, stating she had held several meetings with CLS Project management to discuss needed improvements and outlined a long list of steps that CLS would be taking. At the end of the email, Babcock stated: "Thanks in advance for allowing us to correct/adjust our efforts to meet your needs." Plaintiff was among a number of CLS personnel copied on the email. (Doc. No. 41-5).

         Whether justified or not, NDPL continued to be dissatisfied with CLS's performance. (Doc. Nos. 26-2, pp. 62-68; 29-6, p.2). On or about, August 3, 2015, NDPL demanded that CLS make additional management changes, including removal and replacement of plaintiff as the manager for the North Dakota segment and a demand that CLS add management support for the Minnesota segment. (Doc. No. 29-7). This was contemporaneous with NDPL expressing concern about continued problems with respect to record keeping and file management among other things. (Doc No. 29-6, p.2).

         At some point, NDPL engaged another right-of-way company to assist in an of audit of the right-of-way acquisition files. The audit purportedly found a high rate of documentation errors, including on the North Dakota segment. Eventually, this led to NDPL ending its contractual relationship with CLS around the end of 2015 and efforts being made to reacquire easements that were problematic, including on the North Dakota segment. According to the audit report, only 51.96% of the North Dakota tracts (397 out of 759) were found to be "valid," with 11.28% having a priority 1 status and the remaining 36.13% a priority 2 status. (Doc. No. 26-2, pp. 75-79).

         In the second quarter of 2016, the Sandpiper Project was cancelled altogether for reasons unrelated to CLS's allegedly deficient performance. (Doc. No. 26-2, pp. 11, 94). In July 2017, NDPL filed suit in state court in Texas seeking damages from CLS for its allegedly deficient performance. (Doc. Nos. 26-1, p. 125; 29-4).

         D. Plaintiffs removal from the Project

         Plaintiff worked on the Sandpiper Project for almost two and a half years. As already noted, NDPL had CLS remove plaintiff from the Project on or about on August 3, 2015. Relevant to what comes later, the communication directing plaintiff s removal was not made to him personally. Rather, the direction came from NDPL's Mike Bradburn and was made to CLS Project Supervisor, Liz Babcock. Babcock, in turn, informed plaintiff he was being removed from the Project, stating it was at the direction of NDPL. (Doc. No. 26-1, pp. 109-10).

         Also, as noted earlier and relevant to what follows, plaintiffs removal was among other management changes requested at the same time and followed the management changes that NDPL required over a year earlier. Notably, CLS's Sr. Vice President Kerry Malone stated the following in an email dated August 3, 2015 to the person in charge of personnel for CLS:

I spoke to Liz this AM and we are being asked to remove Dan Gilliland from the Project and to add a new Manager in ND and also to add a Manager in MN to support Josh Trepl. I believe they also need an additional ALS to be added to Grand Forks. Since Enbridge has already fired every manager we have, I am wondering who might be candidates for the positions. I was surprised that Sheri Kelley was not just promoted but, much to my surprise, Liz indicated there were some concerns with Sheri .will discuss this issue with Brent but you and I need to put our heads together about new managers for Sandpiper.

(Doc. No. 29-7).

         Senior Manager for Land Services John McKay testified that he made the decision to have plaintiff removed from the Project in collaboration with Mike Bradburn who reported to him. (Doc. No. 26-2, pp. 67-68). Plaintiff in his response to the motion for summary judgment acknowledged that McKay was the person responsible for this removal from the Project. (Doc. No. 29, p. 2).

         Upon being informed he was being removed from the Project at the direction of NDPL, plaintiff reached out by email to McKay for reasons why. McKay had Bradburn respond, and, on August 11, 2015, Bradburn sent plaintiff an email stating:

         Dan,

I just wanted to clarify that the main reasons Enbridge wanted a change in the management of CLS Land Services on the SPP and Line 3 South Projects was due to continuous errors in the documents, untimely recording of documents and not adhering to Enbridge policy for storing and filing documents. Over the last several months this has been brought to CLS's attention several times on conference calls, emails, and face to face meetings.
Thanks for your time spent on the projects and good luck in the future.
Mike Bradburn

(Doc. No. 26-1, p. 341). When deposed in this action, McKay similarly articulated NDPL's reasons for seeking plaintiffs removal as follows:

A. The three predominant reasons that I recall were the - - obviously, the quality of the documents; the file management which includes the entries by CLS folks into the MP right-of-way system; and I believe there were issues with timely recording as well as of those easements for land rights.

(Id. p. 66).

         Upon receipt of Bradburn's email, plaintiff expressed the following thoughts in an email dated August 13, 2015:

Liz Babcock was in the office on Tuesday and notified me that Enbridge was terminating my services on the Sandpiper Project. She told me that Mike Bradburn, Jay Manders and others were in a meeting with her last and told her the reason was They needed a stronger Manager on the Project. She indicated that Darryl Sayler had told them that I was the only one in the office most of the time and I did not make the other employees come to work in the office. He had also told Mike Bradburn that almost always I told him to go to Sheri and Nanci if he had questions leading them to believe I did not know the answer to the questions. I always answered all of his questions when he would come into the office himself (which was rarely) but always checking up on us and always giving them negative reports. Darryl started doing this after I sent him a reply email telling him that I did not appreciate his coming down so hard on my employees. I have a copy of this letter attached. Darryl since has made several smarty comments to me and I quote "You can see you didn't hurt me, I am still here aren't I" Twice more recently he has made the almost identical comment in a very snide snickering way and I quote "You see I am still here and I am moving up"! Darrel used to come into the office almost every day but up until this past week he has only been to the office twice. He slipped in unannounced on Tuesday of this week 8/11-15 and Sheri, Troy had just left the office to go to lunch. It was just after 2:00 PM and of course, I had locked the office doors upstairs as no one was here while we were gone except for Sarah Roberts in the Down stairs Admin. Office. His comment to Sarah was (Is no one working today). Sarah explained that we had been busy with Agents in the office all morning and just now had time to take a break and go have a late lunch. This happens very often as we hardly ever know when we will get to go eat lunch. I have been watching this situation ever since I sent the email to Darryl and it has become very evident that he is joining with his direction and I could see the building of a conspiracy to get rid of me. Darryl Sayler, Mike Bradburn, Jay Manders, John McKay, Corissa Seeley, Kyra Berkness and Kim Izzard and the strong leaders of this conspiracy More and more every day they are making everything harder for all of us with CLS on the Project. This email from Mike Bradburn, copied to John McKay states what they have come up with for a reason. I had sent an email to John McKay asking him on his take on why this action was taken and He did not have what it takes to reply to me himself. He had Mike Bradburn do it. I am also attaching a copy of this email I sent to John McKay and a copy of two emails from him Praising Me Personally and The entire CLS Team for our excellent work on this Project. I think it is fairly clear as to what is happening with all we, ME and CLS employees are being blamed for. There is PLENTY of evidence that their MPROW system is in deplorable condition but we are being blamed for everything that goes wrong with Documents and everything they can blame us for. They send reports and emails to John McKay about how bad everything is and never send him anything that it was not our fault, it is their system (MPROW) that is not working like it is supposed to work. The three Ladies mentioned are blaming everything bad on us but never correct anything that was blamed or wasn't our fault to start with. I have been saying all along that they are working on getting rid of me and bringing someone from Enbridge to run this office. I will be writing more and more on this as time goes on now that my last day on this Sandpiper Project is Saturday 8-15-2015
WHEN I CONTINUE, IT WILL BE HOW THEY PRAISED ME AND ALL THE CLS TEAM AS LONG AS WE WERE BUYONG THE NORTH DAKOTA 300 MILES OF THIS PROJECT IN JUST 90 DAYS DURING THE COLDEST WINTER IN HISTORY FORND. THE MONTHS OF DECEMBER 2013 AND JANUARY AND FEBRUARY ...

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