Gilliland v. Contract Land Staff, LLC
| Decision Date | 09 October 2019 |
| Docket Number | Case No. 1:17-cv-191 |
| Parties | Daniel Gilliland, Plaintiff, v. Contract Land Staff, LLC, and North Dakota Pipeline Company, LLC Defendants. |
| Court | U.S. District Court — District of North Dakota |
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
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.
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.
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.
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."
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 of plaintiff'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 ofProject 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-leased 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 Malone, 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).
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:
(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)...
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