Kinser v. Bechtel Power Corp.

• Decision Date: 31 May 2012
• Docket Number: No. 1:10–CV–312.,1:10–CV–312.
• Citation: 868 F.Supp.2d 702
• Parties: Charles G. KINSER, Plaintiff, v. BECHTEL POWER CORPORATION and Sun Technical Services, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

868 F.Supp.2d 702

Charles G. KINSER, Plaintiff,

v.BECHTEL POWER CORPORATION and Sun Technical Services, Inc., Defendants.

No. 1:10–CV–312.

United States District Court, E.D. Tennessee.

May 31, 2012.

Mark N. Foster, Law Office of Mark Foster, Rockwood, TN, for Plaintiff.

Jonathan O. Harris, Jennifer Smith Rusie, Ogletree, Deakins, Nash, Smoak & Stewart, Nashville, TN, Suzanne K. Roten, Rebecca Brake Murray, Wimberly, Lawson, Wright, Daves & Jones PLLC, Knoxville, TN, Larry J. Rappoport, Stevens & Lee, King of Prussia, PA, for Defendants.

MEMORANDUM

CURTIS L. COLLIER, Chief Judge.

Before the Court are motions for summary judgment filed by Defendants Bechtel Power Corporation and Sun Technical Services, Inc. (“Bechtel” and “Sun Technical” respectively; collectively “Defendants”) (Court File Nos. 44 & 46). Plaintiff Charles G. Kinser (“Plaintiff”) responded (Court File No. 49), and Bechtel replied (Court File No. 50). For the following reasons, the Court will GRANT the motions for summary judgment (Court File Nos. 44 & 46) and DISMISS the case.

I. FACTS AND PROCEDURAL HISTORY

The underlying facts giving rise to this case were stated in the Court's earlier Memorandum and Order granting in part Defendants' motions to dismiss and for judgment on the pleadings (Court File No. 30), and will not be repeated at length here. Briefly, the action concerns Defendants' allegedly wrongful conduct following their termination of Plaintiff's employment. Plaintiff has worked in the nuclear industry for over two decades. In the spring of 2008, he was employed by Sun Technical to work on a project at the Watts Bar nuclear facility, which is operated by the Tennessee Valley Authority (“TVA”).¹ At some point during Plaintiff's employment, Bechtel conducted an investigation into employees' living allowances. Bechtel, apparently believing Plaintiff had provided false information about his living expenses, fired him on May 28, 2009. Plaintiff was told he was “being released due to an ongoing investigation by the [Inspector General's] office” (Court File No. 45–1, p. 27 [“Plaintiff's Dep.”] ). According to Plaintiff, at some point after he was terminated, Defendants “reported in writing to persons maintaining Plaintiff's security clearances, including TVA, that Plaintiff had provided false information to his employer in order to obtain a living allowance certification” (Court File No. 20, ¶ 10 [“Amended Complaint”] ). These reports allegedly resulted in Plaintiff's nuclear security clearances being revoked, making him ineligible to be hired by other potential employers in the nuclear industry. According to Plaintiff, these reports were false. Consequently, Plaintiff sued Defendants for defamation, intentional interference with business relationships (“IIBR”), and civil conspiracy.

Plaintiff's lawsuit was filed on November 22, 2010, which is almost eighteen months after he was fired by Defendants. All of Plaintiff's claims are subject to a one-year statute of limitations. Hence, Defendants filed motions to dismiss for untimeliness.² Plaintiff's response was twofold. First, he relied on his initial complaint's conspicuous omission of any dates related to the alleged defamation—and his erroneous belief that he had no obligation to specify such dates—to conclude untimeliness could not be established. Second, and more plausibly, he amended his complaint to allege that regardless of when Defendant's libelous conduct occurred, he did not discover libelous communications had been made until one year, to the day, before filing suit.² The Court granted Defendants' motions in part, dismissing the IIBR claim for failing to allege sufficient facts. With regard to the remaining claims, the Court set a hearing on the single issue of whether Plaintiff's defamation and civil conspiracy claims are time-barred.

The main issue at the hearing, and in a round of post-hearing briefing, concerned whether and to what extent Tennessee's so-called “discovery rule” statute-of-limitations exception applies in libel cases. In a nutshell, if the discovery rule does not apply to libel cases, Plaintiff's case would be untimely; if it does, Plaintiff's case might be timely, depending on whether he satisfies the conditions of the discovery rule. In a written memorandum and order entered June 29, 2011, the Court concluded Tennessee's discovery rule may apply in exceptionally rare instances where the “secretive or inherently undiscoverable” nature of a libelous publication prevents a plaintiff from knowing or discovering through use of reasonable diligence he had been defamed. See Leedom v. Bell, 1997 WL 671918, *7 (Tenn.Ct.App. Oct. 29, 1997); Watson v. Fogolin, 2010 WL 1293797, *4 (Tenn.Ct.App., Apr. 1, 2010). Unfortunately, this legal conclusion was insufficient to allow the Court to rule on the timeliness of Plaintiff's claims. As the Court explained:

The upshot ... is this: as a theoretical matter, the discovery rule may apply in libel actions; as a practical matter, it rarely does. This presents a difficulty for the Court at the dismissal stage, for the Court must essentially determine whether a complaint pleads a claim that is “plausible on its face” when it relies upon a doctrine that is hardly ever applicable, that is to say, a doctrine whose invocation is typically implausible. This difficulty is amplified by the discovery rule's contingency on non-empirical facts (unlike the typical statute-of-limitations dispute), namely, whether libelous documents were “inherently undiscoverable” and whether, regardless of the date of actual discovery, a plaintiff could have earlier discovered the defamation with reasonable diligence.

(Court File No. 39, pp. 3–4). Accordingly, the Court stayed the motions to dismiss and ordered a period of limited discovery to focus exclusively on the questions of: 1) when in fact Plaintiff discovered he had possibly been defamed via libelous publications; and 2) when, with reasonable diligence, Plaintiff could have discovered he had been defamed. The facts which follow emerged from this period of discovery.

Plaintiff has worked in the nuclear industry for over twenty years, at approximately eight different nuclear facilities. In order to get onto a nuclear facility, one needs a security clearance (Plaintiff's Dep. p. 10). To get and hold such a clearance, in Plaintiff's words, “[t]here's a certain lifestyle you have to maintain ... [y]ou can't have felonies, no DUI's ... nothing like that. There's a certain standard you have to live to and live by ... [you must be] trustworthy” ( id. at pp. 10–11). In addition to site-specific security clearances, there is a nationwide computer database called “Plant Access Data System,” or “PADS,” which all nuclear facilities in the country use to track and share information related to security restrictions associated with individuals in the nuclear industry. According to Plaintiff's understanding, facilities use PADS to determine if there are any security restrictions which should prevent a prospective employee from being cleared to access the facility ( id. at p. 12). Based on his lengthy experience in the nuclear industry, Plaintiff knew that if an employee working at a nuclear facility were to be fired for some type of fraud, “it would probably affect their clearance” because “fraud is a serious offense” (Plaintiff's Dep. p. 29). ³ At deposition, Plaintiff was “not surprised” at the notion a coworker had his security clearance revoked for falsifying information on his resume, because “that would be lying” ( id. at p. 32).

When Plaintiff began his employment for Defendants at the Watts Bar location, he signed a form acknowledging Defendants would use PADS to access information about him and share information about him with others in the nuclear industry.⁴ Additionally, Plaintiff expressly “authorize[d] any ... entity that now has, or obtains in the future, access-related information about me ..., whether or not such information is included in the PADS database, to release any such information in order to perform the investigation and evaluation required for unescorted access,” and further “authorize[d] the entry into the PADS computer database any information collected for the purpose of ... continued maintenance [of my application]” (Court File No. 45–2, p. 3). Finally, Plaintiff signed to acknowledge his understanding that, “upon my written request to Bechtel, and at no cost to me, I will be provided, within 10 working days, with a printed copy of the information about me which is recorded in the database. If, after my review of such information, I can show that any of the information is incorrect or incomplete, such information will be corrected ... as soon as is reasonably practical” ( id.).

In March 2009 Plaintiff learned Bechtel was investigating the living allowances he had been claiming ( id. at p. 35). On May 28, 2009, Plaintiff was summoned to a meeting involving himself, a Bechtel Human Resources representative, and Michael Lively, an “employee concerns” professional for Bechtel. At the meeting, Mr. Lively told Plaintiff he was being terminated immediately “due to an ongoing investigation by the [Inspector General's] office ... [into] a living allowance fraud” ( id. at p. 27). At the time, it was “clear to [Plaintiff] ... that the reason [his] employment was coming to an end was related to th[e] living allowance issue” ( id. at p. 37). At the conclusion of the meeting, Plaintiff's badge to access the Watt's Bar plant was taken away ( id. at p. 23).

In the months that followed, Plaintiff “had a suspicion” information might have been conveyed to TVA which was negatively affecting his nuclear security clearance( id. at pp. 22–23). During the summer of 2009 Plaintiff applied for roughly a dozen jobs, but “was getting no response” ( id. at p. 23). This was quite unusual for Plaintiff. In the past he had always had no trouble getting a job at a nuclear facility when he wanted one—...