Del Kostanko v. MVM, Inc.

• Decision Date: 13 December 2018
• Docket Number: NO. 1:17-CV-806,1:17-CV-806
• Citation: 365 F.Supp.3d 881
• Parties: Del KOSTANKO, Plaintiff, v. MVM, INC., Defendant.
• Court: U.S. District Court — Western District of Michigan

365 F.Supp.3d 881

Del KOSTANKO, Plaintiff,

v.MVM, INC., Defendant.

NO. 1:17-CV-806

United States District Court, W.D. Michigan, Southern Division.

Signed December 13, 2018

Erin Lynn Dornbos, Sarah Riley Howard, Pinsky Smith Fayette & Kennedy LLP, Grand Rapids, MI, for Plaintiff.

Sarah L. Simmons, William J. Vincent, Littler Mendelson PC, Detroit, MI, for Defendant.

OPINION

Paul L. Maloney, United States District Judge

In Michigan, employment is presumptively "at-will," meaning that it can be terminated at any time by either party—even before the employment has begun. But sometimes, a relationship between an employer and employee has "distinguishing features" that place it outside the scope of normal, at-will employment.

Del Kostanko retired in June of 2015 after more than twenty years working in the Lansing Police Department. Finding retirement not quite to his liking, Kostanko began to pursue other employment in law enforcement. By May of 2017, he was faced with a choice; he had received offers of employment to work as a Narcotics Analyst for the Michigan State Police or as a contracted Healthcare Fraud Senior Investigator for the United States Attorney's Office for the Western District of Michigan, which was staffed by MVM, Inc.

Mindful of his children and their impending foray into the costly world of higher education, Kostanko chose the position that paid nearly double the other; he accepted the offer from MVM to work as a Healthcare Fraud Investigator. And the same day he accepted MVM's offer of employment, Kostanko turned down his offer from the MSP.

Unfortunately for him, MVM's offer of employment was not all that it seemed. Even after MVM reassured Kostanko that the position was his and sent him an offer letter, the U.S. Attorney's Office decided that, before selecting Kostanko for the position, it wanted to "see some competition." MVM then forwarded the application of another candidate, Barbara Birdsong, a recently-retired Internal Revenue Service Investigator. Ultimately, it was Birdsong who was selected for the position.

Kostanko brought this suit, raising a sole claim of promissory estoppel against MVM, and MVM has now moved for summary judgment. Accordingly, there are two questions for the Court to consider: (1) Whether Kostanko's relationship to MVM had distinguishing features to place it outside the realm of at-will employment as a matter of law, and, if so, whether a reasonable juror could conclude that (a) MVM made a promise, (b) that it should reasonably have expected to induce action of a definite and substantial character on the part of the promisee, (c) that Kostanko relied on the promise, and (d) Kostanko's reliance on the promise caused an injustice. Because the Court answers the first question in the negative, summary judgment is warranted, and the Court need not address whether Kostanko has otherwise generated sufficient evidence to create a material dispute of fact for trial.

I.

Defendant MVM, Inc. is a staffing agency that specializes in placing employees with the federal government. It has a contract with the United States Attorney's Office (USAO) for the Western District of Michigan to staff a Healthcare Fraud and Abuse Control Senior Investigator ("Senior Investigator"). In September 2015, the USAO's contracting officer, Warren "Skip" Olson requested a bid from MVM for the placement of a Senior Investigator. MVM then posted the job on its website.

MVM received several applications, including one from Plaintiff Del Kostanko. Kostanko had retired from the Lansing Police Department a few months earlier, after twenty-two years of service. After retiring, Kostanko worked part-time as a private investigator for Brooks Investigations, but he was interested in pursuing a full-time position, which drew him to the Senior Investigator position. But by the time Kostanko applied, MVM had already focused on another candidate, James Adamcheck, who was ultimately hired for the position. Adamcheck held the position for approximately eighteen months, until he decided to retire in the Spring of 2017.

On May 22, 2017, Kathy Brooks, an auditor working in the USAO, contacted Kostanko and told him to call her because of Adamcheck's retirement and the corresponding availability of the Senior Investigator position. (ECF No. 34-11 at PageID.246.) That same day, Kostanko also spoke with Adamcheck, who encouraged him to apply. After their conversation, Kostanko sent his resume to Adamcheck, and Adamcheck forwarded it to Kevin Reyes, MVM's Operations Manager.

The Senior Investigator job was not the only one Kostanko was pursuing. He was already being considered by the Michigan State Police for a full-time position as a Strategic Narcotics Intelligence Analyst. He applied on March 31, 2017 and interviewed with the MSP Criminal Intelligence and Narcotics Manager on May 8, 2017. By the time he corresponded with Adamcheck on May 22, Kostanko wrote that he had a conditional job offer from the MSP (pending a drug screening) and that he expected to have a formal offer in the next few days. True to his expectations, Kostanko received a formal offer for the Narcotics Analyst position three days later on May 25.

May 25, 2017 was a busy day for Kostanko. In addition to receiving the job offer from the MSP, he interviewed for the Senior Investigator position by phone with Shaneice Singleton, an MVM recruiter. At the close of the interview, Kostanko informed Singleton of his other job offer.

While the precise timing is not clear from the record, Kostanko also discussed the Senior Investigator position with Reyes on or before May 25. According to Kostanko, Reyes told him that his resume would be "fast-tracked" based on Adamcheck's recommendation and that his resume would be the only one passed along to the USAO to review.

But on May 26, Reyes contradicted his earlier statement, informing Kostanko that his resume would be sent "along with the others" for consideration by the USAO. Kostanko remembers telling Reyes that this unwelcome news was a "curveball" and that he had a solid job offer from MSP, and that he would "go with the one that was the most secure between the two of them." Reyes called Kostanko back about fifteen minutes after this conversation. Kostanko asked him directly about the Senior Investigator position: "Kevin, do I have the job or not?" Reyes allegedly responded, "Yes, you have the job." Kostanko then informed him that he would decline the Narcotics Analyst position with the MSP.¹

A few days later, Kostanko received a letter from MVM, confirming that it was offering him the position, "contingent upon the satisfactory outcome of a personal background check .... [A]s well as client acceptance of [his] qualifications." Kostanko accepted MVM's offer the following day, June 2, 2017. After doing so, he met with the decisionmakers from the Michigan State Police and formally declined its offer of employment to him.

But Kostanko didn't really have the Senior Investigations job. The same day that Kostanko accepted MVM's contingent offer, Reyes emailed Skip Olson to let him know that MVM had "completed the internal checks" required to hire Kostanko. Olson responded by requesting a meet-and-greet. However, Olson sent a second email later on June 2nd. He informed Reyes that "Management" at the USAO had reviewed Kostanko's resume but "would like to see some competition" before holding a meet and greet or making a hiring decision. Reyes then immediately forwarded the resume of Barbara Birdsong, a retired investigator who had worked for the Internal Revenue Service. Birdsong had applied at the same time as Kostanko, and MVM had also conducted a phone interview with her. But MVM had not made a conditional offer of employment to her.

Reyes called Kostanko to break the news that multiple candidates would be having Meet-and-Greets with the USAO. Kostanko was predictably unhappy, but Reyes allegedly told him, "Don't worry about it. You still have the job; you're the most qualified." Kostanko then met with USAO staff on June 9, 2017.

On June 12, 2017, Reyes emailed Kostanko to tell him that the USAO was hiring another candidate—Birdsong. After finding out that he had not gotten the Senior Investigator job, Kostanko immediately called the MSP to inquire about the Narcotics Analyst position but was informed him that it had been filled. Thus, in a span of two weeks, Kostanko went from having two putative job offers, to none. He remains employed by Brooks Investigations but has not secured full-time employment.

II.

Kostanko filed suit in this Court on September 5, 2017, invoking the Court's diversity jurisdiction by alleging that Kostanko and MVM are citizens of different States and that the amount in controversy exceeds $ 75,000. 28 U.S.C. § 1332.² (ECF No. 1.) MVM filed the instant motion for summary judgment on August 23, 2018, and it is now ripe for resolution. (ECF Nos. 34–36.)

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c) ; Tucker v. Tennessee , 539 F.3d 526, 531 (6th Cir. 2008). The burden is on the moving party to show that no genuine issue of material fact exists, but that burden may be discharged by pointing out the absence of evidence to support the nonmoving party's case. Bennett v. City of Eastpointe , 410 F.3d 810, 817 (6th Cir. 2005) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The facts, and the inferences drawn from them, must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

Once the moving party has carried its burden, the...