Gordon v. Kleinfelder West, Inc.
| Decision Date | 05 March 2012 |
| Docket Number | No. 03:11-CV-00245-HU,03:11-CV-00245-HU |
| Parties | JOHN ALLEN GORDON, Plaintiff, v. KLEINFELDER WEST, INC., Defendant. |
| Court | U.S. District Court — District of Oregon |
Daniel C. Lorenz
521 S.W. Clay
Portland, OR 97201
Attorney for Plaintiff
Joanna R. Brody
Scott Oberg Oborne
Jackson Lewlis LLP
Portland, OR 97204
Attorneys for Defendant
The plaintiff John Allen Gordon brings this case against the defendant Kleinfelder West, Inc. ("Kleinfelder") for damages arising from Gordon's termination by Kleinfelder on February 2, 2010, and events occurring immediately thereafter. The case is before the court on motions for summary judgment filed by both parties. Gordon seeks partial summary judgment on the issue ofliability as to two of his claims against Kleinfelder; i.e., his Third Claim for Relief, for malicious prosecution, and his Fourth Claim for Relief, for conversion.1 Dkt. #24; see Dkt. #1-1. He also seeks summary judgment on all four of Kleinfelder's Counter-claims, which seek damages for conversion, breach of contract, violation of Oregon's Uniform Trade Secrets Act, and defamation. See Dkt. #23, Kleinfelder's Amended Answer and Counterclaims.
Kleinfelder seeks summary judgment on all of Gordon's claims against it, or alternatively, partial summary judgment on all claims as to which no genuine issues of material fact exist.
There are few undisputed facts. Kleinfelder is a nationally-based science, architecture, and engineering consulting firm. Dkt. #26, ECF p. 7 (citing Dkt. #29, Izen Decl. ¶ 2). In approximately April of 2008, Kleinfelder hired Gordon as a Civil Design Specialist, which required Gordon to perform civil site design and plan development. Id. (citing Izen Decl. ¶ 4). According to Gordon, one of the inducements for Kleinfelder to hire him was his personal portfolio of CAD drawings that he could use in performing his job. Dkt. #24-2, Gordon Decl. ¶ 2; Dkt. #41, Gordon Decl. ("Gordon Decl. #2") ¶ 2. At the request of his then-supervisor, Jay Beeks, Gordon put his CAD drawings onto the "D" drive on his office computer. Id.; Gordon Decl. #2 ¶ 2.
During his tenure at Kleinfelder, a significant amount of Gordon's time was spent working on a wind power development project (the "EverPower Project") for one of Kleinfelder's clients, EverPower Wind Holdings, Inc. Dkt. #26, ECF p. 7 & n.1 (citing Dkt. #27, Att. 1, Deposition of John Gordon ("Gordon Depo"), p. 153). Beginning in January 2010, Peter Stroud, a Principal Engineering Geologist for Kleinfelder, became Project Manager for the EverPower Project, and served as Gordon's direct supervisor. Id. (citing Dkt. #34, Stroud Decl. ¶ 3). "The EverPower Project involved potentially repurposing a logging tract into a wind farm." Id. (citing Dkt. #30, Loftis Decl. ¶ 3). As part of Gordon's work on the EverPower Project, he participated in a feasibility study to assess what types of vehicles could traverse the existing roadways at the EverPower Project site. Gordon spent two days at the site obtaining information about culvert locations and the general condition of culverts in the logging tract. Id. (citing Gordon Depo. pp. 149, 155-56, 161). A Kleinfelder drafter, Taran Kratz, accompanied Gordon to the site on the second day. Id. (citing Gordon Depo. pp. 161, 171). Gordon recorded about 100 culvert locations on a GPS device, and also recorded field data in handwritten notes. Dkt. #26, ECF p. 9 (citing Stroud Decl. ¶ 4; Gordon Depo. pp. 330-31). His intention was to transfer the data into Kleinfelder's CAD system to generate maps and diagrams for use in connection with the EverPower Project. See Gordon Depo. pp. 157, 164; Gordon Decl. ¶ 5. According to Gordon, the EverPower Project could not be completed without this data. Gordon Decl. ¶ 5.
On February 2, 2010, Abraham Izen, who at that time was Kleinfelder's Global Director of Renewable Energy, and Stroud, Gordon's supervisor, met with Gordon and terminated his employment. Dkt. #26, ECF p. 8 (citing Izen Decl. ¶ 7). The parties dispute the reason for Gordon's termination.
Kleinfelder claims Gordon was terminated due to poor work product, poor attitude, uncooperative behavior, and unwillingness to accept appropriate supervision. Dkt. #26, ECF p. 8 . Izen claims he informed Gordon that he was being terminated for "poor work performance and behavior," and he "gave Gordon a Performance Improvement and Corrective Action form . . . that specified that Gordon was being terminated based on his unsatisfactory work performance and the fact that Gordon was uncooperative, disrespectful, and combative with his supervisors." Id., ¶ 7. According to Izen, Gordon refused to sign the form, writing "Not true" next to the reasons for his termination. Id.; see Dkt. #27-1, ECF p. 70, "Performance Improvement and Corrective Action" form dated 1/29/2010 (Gordon Depo. Ex. 13). Under "Reason for action," the form indicates, "Unsatisfactory Work Performance - work is not completed in accordance with the standards set by the company or the requirements of the position." Dkt. #27-1, ECF p. 70. Under "Facts and Events," the form indicates, Id. Next to each of these items is a handwritten notation, "Not true." Id.
Gordon claims he was told he was terminated as part of a reduction in force. On a "Separation Report" completed by Izen in connection with Gordon's termination, under "Reason for Separation," Izen noted, "Layoff/Reduction in Force." Izen Decl. ¶ 8; Dkt. #29-1, Separation Report. In his Declaration, Izen states he made that notation "so that Gordon would not have to disclose his performance-based termination to prospective employers," and also because he believed it "would help Gordon receive unemployment benefits." Izen Decl. ¶ 8.
At the end of the termination meeting, Gordon was instructed to arrange to meet with Stroud after regular business hours to retrieve his personal belongings from his office. Dkt. #26, ECF p. 9. According to Kleinfelder, as Gordon left the termination meeting, he showed Stroud a GPS device, stating it contained 100 culvert locations from the EverPower Project that had not been saved onto Kleinfelder's computer yet.2 Id. (citing Stroud Decl. ¶ 4; Gordon Depo. pp. 330-31) Gordon also mentioned that he had his original field notes in the trunk of his car, if Kleinfelder wanted them. No action was taken at that time to transfer the GPS data or to retrieve Gordon's handwritten field notes. Gordon Decl. ¶ 3; Gordon Decl. #2 ¶ 5.
Gordon called Stroud around 5:00 p.m. on February 3, 2010, to arrange to retrieve his personal belongings. Dkt. #26, ECF p. 10 (citing Stroud Decl. ¶ 5). When Gordon arrived at the office, Stroud accompanied him into his former office. Id. (citing Gordon Depo. p. 342; Stroud Decl. ¶ 5). The parties have conflicting versions of what occurred during and subsequent to this meeting.
Gordon claims that while he was in his office, he picked up a piece of paper, previously retrieved from a recycling bin, that contained a portion of an old map - a section of a larger map that had already been filed of record in Lewis County, Washington. See Dkt. #54-1, p. 33 (Gordon Depo. Ex. 14). Gordon claims he had written personal telephone numbers and information relating to a child support matter on the document, and the document contained no proprietary or confidential information. Gordon Decl. ¶¶ 4, 8. Stroud claims the document Gordon picked up was a large, folded EverPower Project map belonging to Kleinfelder, which Stroud believed contained proprietary information. Dkt. #26, ECF p. 10 (citing Stroud Decl. ¶ 5). Stroud told Gordon he could not take the map because it was Kleinfelder's property, but Gordon refused to relinquish the document, stating he needed the personal phone numbers written on it. Dkt. #26, ECF p. 10 (citing Stroud Decl. ¶ 5). A brief scuffle ensued during which Stroud attempted to prevent Gordon from leaving the office with the document, but Gordon was able to evade Stroud's attempt and he left the office with the document. Gordon Decl. ¶ 1. Gordon claims Stroud assaulted him, and threatened him with further assault. Id.; Gordon Decl. #2, ¶ 6. Gordon also claims he was not allowed to take his personal CAD drawings, some text files, and gaming "screenshots" that he had placed on his "D" drive, as well as a personal address book. He claims these items belong to him, not to Kleinfelder, and they have never been returned to him. Gordon Decl. ¶¶ 1, 2; Gordon Decl. #2 ¶ 7.
In addition, Gordon claims that while he was retrieving his personal items, he again mentioned to Stroud that his field notes were in the trunk of his car, if Kleinfelder wanted them, but again, no one requested the information. Gordon Decl. ¶ 6. Subsequently, in a letter dated February 11, 2010, Gordon made a formal offer, through his attorney, to deliver the handwritten field notes to Kleinfelder; however, according to Gordon, Kleinfelder never requested the notes until it served Gordon with a request for production of documents in this case. Id.
Gordon claims he never took any proprietary or confidential information or data from Kleinfelder's premises, and the scrap of the map he took with him had no intrinsic or monetary value to Kleinfelder. Gordon Decl. ¶¶ 4, 14. He further claims he has never used, shared, disseminated, or benefitted from any proprietary information or trade secrets of Kleinfelder's. Id. ¶ 15. Gordon also claims that during his employment, Izen and other Kleinfelder employees created a hostile work environment in an attempt to dissuade Gordon from continuing to work at Kleinfelder. Gordon Decl. ¶ 3; Gordon Decl. #2 ¶¶ 8, 9. Gordon claims these actions...
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