Derendinger v. Kiewit Constr. Co.

• Decision Date: 08 July 2003
• Docket Number: No. A01-0204 CVC(JKS).,A01-0204 CVC(JKS).
• Citation: 272 F. Supp. 2d 850
• Parties: Jon DERENDINGER, Plaintiff, v. KIEWIT CONSTRUCTION COMPANY, Defendant.
• Court: U.S. District Court — District of Alaska

272 F. Supp. 2d 850

Jon DERENDINGER, Plaintiff, v. KIEWIT CONSTRUCTION COMPANY, Defendant.

No. A01-0204 CVC(JKS).

United States District Court, D. Alaska.

July 8, 2003

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ORDER

SINGLETON, District Judge.

INTRODUCTION

Presently before the Court are four motions brought by Defendant Kiewit Construction Company ("Kiewit"). First, Kiewit moves for summary judgment. Docket Nos. 56 (Mot.); 65 (Opp'n); 68 (Reply). Second, Kiewit moves to exclude all evidence of citations issued to Kiewit by the Alaska Department of Labor, Occupational Health and Safety Section. Docket Nos. 57 (Mot.); 62 (Opp'n); 67 (Reply). Third, Kiewit moves to exclude the Alaska Department of Labor, Occupational Safety and Health Section's investigative report. Docket Nos. 58 (Mot.); 62 (Opp'n); 69 (Reply). Lastly, Kiewit moves to limit Plaintiff Jon Derendinger to one expert witness. Docket Nos. 60 (Mot.); 63 (Opp'n); 70 (Reply).

FACTUAL AND PROCEDURAL BACKGROUND

Jon Derendinger was employed as a miner and later as a foreman with Kiewit. Docket No. 22 at 2. During the summer and fall of 1999, Derendinger "was responsible for the ground support crew working

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on the Whittier Tunnel Project and preparing the turn outs for the subcontractors." Id. "The ground support crew responsibilities included preparing an area for shot (blast), loading shot, blasting, mucking (cleaning up debris), and scaling rock from the work car and installing [a] ground support system." Id. To enlarge the tunnel, "Derendinger's crew would load the explosives into the holes, prepare the tunnel for a blast and under the supervision of the walking boss, Mike Levoy, the blast would be set off." Id. at 3. Derendinger alleges he warned Kiewit "about safety issues many times." Id. at 4. Specifically, Derendinger alleges that in July of 1999, he warned Kiewit supervisors, Mike Levoy, Mike Byers, Matt Roberts, and general superintendent Jeff Bool, "about the scaling procedures and the way the holes were being left loaded with explosives while passengers and freight trains used the tunnel." Id. Derendinger alleges that as a result of these warnings, he was harassed by Mike Levoy, Mike Byers, and Matt Roberts. Id.

"On September 13, 1999 at approximately 9:00 p.m., Derendinger's crew prepared the tunnel area for a shot and loaded holes with explosives." Id. "The shot was set off around 4:00 a.m. on September 14, 1999" and "[t]hereafter, Mike Levoy sent in a mucking crew to clear the area." Id. "At approximately 8:00 a.m. Mike Levoy sent Derendinger and his crew into the blast area to do hand scaling." Id. The complaint further alleges that Derendinger and his crew had only thirty minutes to scale the area because a train was scheduled to leave Whittier at approximately 9:00 a.m. Id. at 5. Derendinger and his crew did not finish scaling within the thirty minutes. Id. "Mike Levoy radioed the operator of the work car to get the crew out of the tunnel," but "Derendinger's crew continued to work because of all the loose rock in the blast area." Id. Due to the delay in making the tunnel safe, the train was late, which subjected Kiewit to a heavy fine. Id. at 5-6. Derendinger further alleges that after he exited the tunnel Levoy screamed at him. Id. at 6. At a safety meeting held soon thereafter, Derendinger alleges he temporarily left the meeting to get his clipboard and was reprimanded for leaving the meeting. Id. Derendinger returned to work that evening as scheduled, and Mike Levoy informed him that he was terminated. Id.

During his deposition, Derendinger testified as to performance problems at work prior to his termination. Specifically, Derendinger testified that he once walked within fifty feet of live explosives with a lit cigarette. Docket No. 56, Ex. 1 at 22. He also testified that he was verbally reprimanded four times for not turning in the keys to the explosives magazine. Id., Ex. 1 at 23. Derendinger further testified that he was suspended once for three days for cutting a live cable. Id., Ex. 1 at 24-25.

On April 30, 2001, Derendinger filed suit in Alaska Superior Court alleging retaliatory termination, interference with economic advantage, intentional/negligent infliction of emotional distress, and outrageous, malicious and reckless behavior by Kiewit. Docket No. 3, Ex. A (Compl.) at 7-8.¹ On July 3, 2001, Kiewit removed the case from Alaska Superior Court to this Court. Docket No. 1. In an order dated April 25, 2002, this Court dismissed Derendinger's stand-alone claims of negligent infliction of emotional distress and intentional (Counts 3 and 4), as well as a number of Kiewit's affirmative defenses. Docket No.

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42. This Court has jurisdiction pursuant to 28 U.S.C. § 1332 as the parties are diverse and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332.

DISCUSSION

I. Motion for Summary Judgment

Kiewit moves for summary judgment on Derendinger's remaining claims: (1) retaliatory discharge; (2) interference with prospective economic advantage; and (3) conspiracy to interfere with Derendinger's contract. Docket Nos. 56 (Mot.); 65 (Opp'n); 68 (Reply). In his opposition, Derendinger states that "[t]o the extent [Kiewit's] motion seeks dismissal with regard to the claims for interference with a prospective economic advantage, and civil conspiracy, the motion is not opposed." Docket No. 65 at 1. Since Derendinger concedes that Kiewit's motion in this regard is well taken, the Court will dismiss Count 2 (interference with a prospective economic advantage) and Count 5 (conspiracy) of Derendinger's amended complaint. Accordingly, Derendinger's sole remaining claim is for retaliatory discharge.

A. Standard for Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, "[a] party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may ... move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof." Fed. R.Civ.P. 56(a); see also Fed.R.Civ.P. 56(b) (providing the same standard for parties defending against a claim). Summary judgment is appropriate if the Court finds that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Courts will construe all evidence and draw all evidentiary inferences in favor of the non-moving party. 10A Charles Alan Wright et al., Federal Practice and Procedure § 2727, at 459, 459 n. 5 (3d ed.1998) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970)).

A dispute over a material fact exists if the evidence would allow a reasonable fact-finder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48, 106 S. Ct. 2505 (emphasis in original). The non-moving party may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). However, mere allegations of factual dispute, without more, will not defeat an otherwise proper motion. See Provenz v. Miller, 102 F.3d 1478, 1489-90 (9th Cir. 1996); Angel v. Seattle-First Nat'l Bank, 653 F.2d 1293, 1299 (9th Cir.1981) ("A motion for summary judgment cannot be defeated by mere conclusory allegations unsupported by factual data.").

B. Prima Facie Case of Retaliatory Discharge

Kiewit moves for summary judgment on Derendinger's claim of retaliatory discharge on the theory that Derendinger cannot establish a prima facie case. In the alternative, if Derendinger can establish a prima facie case, Kiewit argues that Derendinger cannot produce evidence to show that Kiewit's explanation for Derendinger's

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termination was pretext. The Alaska Supreme Court has provided a cause of action for retaliatory discharge on facts similar to this case, but it has not set out the evidentiary burdens imposed in such circumstances.

Specifically, the Alaska Supreme Court has held that discharging an employee for voicing safety concerns violates public policy and therefore breaches the implied covenant of good faith and fair dealing. See Norcon, Inc. v. Kotowski, 971 P.2d 158, 166-68 (Alaska 1999) (discharging employee for investigating violations of the zero tolerance, alcohol-free workplace policy violates the implied covenant of good faith and fair dealing); Reed v. Municipality of Anchorage, 782 P.2d 1155 (Alaska 1989) (discharging employee for complaining about potentially unsafe working conditions violates the implied covenant of good faith and fair dealing). Although the Alaska Supreme Court has not yet established an evidentiary framework in this situation, it has done so in retaliatory discharge cases brought pursuant to the Alaska Human Rights Act which mirrors Title VII of the Civil Rights Act of 1964 where it has adopted the McDonnell Douglas burden-shifting analysis. See Era Aviation, Inc. v. Lindfors, 17 P.3d 40 (Alaska 2000); VECO, Inc. v. Rosebrock, 970 P.2d 906 (Alaska 1999); see also Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Neither party disputes that the Alaska Supreme Court would also adopt the McDonnell Douglas analysis if confronted with the facts of this case. Accordingly, this Court will employ the McDonnell Douglas burden-shifting analysis in deciding Kiewit's motion for summary judgment.

To survive summary judgment, Derendinger must establish a...