United States District Court, D. North Dakota
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
CHARLES S. MILLER, JR., MAGISTRATE JUDGE
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, Title VII,  and the NDHRA. (Doc. No. 6).
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
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.
NDPL retains CLS for the Sandpiper Project
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).
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).
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
CLS assigns plaintiff to the Sandpiper
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).
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.
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.).
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.,
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).
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).
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).
NDPL's dissatisfaction with CLS's
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).
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
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).
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; (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).
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).
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).
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.
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).
Plaintiffs removal from the Project
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).
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).
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,
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:
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
(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
(Id. p. 66).
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