United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL
SUMMARY JUDGMENT RE: DKT. NO. 33
J. DAVILA, UNITED STATES DISTRICT JUDGE
case arises from the employment relationship between
Plaintiff Aaron Killgore (employee) and Defendant Specpro
Professional Services (“SPS”) (employer).
Defendant moves for summary judgment as to the first and
forth causes of action within Plaintiff's complaint: (1)
wrongful termination in violation of California's
whistleblower protections and (4) wrongful termination in
violation of public policies. Having considered the
Parties' briefs and having had the benefit of oral
argument on December 19, 2019, the Court
GRANTS Defendant's motion.
Conroe Environmental Assessment
is an environmental compliance professional who worked for
Defendant from June 2015 until June 22, 2017 (the date of his
termination) as a program manager. Declaration of Geoffrey C.
Lyon (“Lyon Decl.”), Ex. A (“Killgore
Depo.”) at 68, Dkt. 37; Id., Ex. B
(“Emerson Depo.”) at 17, 70. He was subsequently
promoted to senior program manager. Reply Declaration of
Denise Tran-Nguyen (“Reply Tran-Nguyen Decl.”),
Ex. D (“Emerson Depo.”) at 18.
the federal government proposes to use land in the United
States, it must comply with a host of federal environmental
statutes and regulations. Defendant, an environmental and
facilities services firm, entered into a renewable, one-year
contract with the United States Army Reserve
(“USARC”) to provide various environmental and
training support services for the 63rd Regional Support
Command. Declaration of Will Emerson (“Emerson
Decl.”) ¶ 4, Dkt. 33. One of the projects under
contract involved preparing a final Record of Environmental
Consideration (“REC”) for a proposed action by
the 1-158th Assault Helicopter Battalion
(“AHB”). Id. ¶ 5. The
1-158th AHB is an Army Reserve Unit that operates
out of the Conroe Army Reserve Center, located within the
Conroe-North Houston Regions Airport in Conroe, Texas.
Id., Ex. A at 22. The 1-158th AHB planned
to modify 12 landing sites located on Texas Department of
Criminal Justice (“TDCJ”) land. Id.
¶ 5. In connection with the REC required for the change
to the landing sites, Defendant and the 63rd Command
evaluated potential effects on air quality, storm water,
noise, natural resources, cultural resources, and the
Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”) compliance at the
Conroe, Texas Location. Declaration of Laura Caballero
(“Caballero Decl.”), Ex. A at 5-6, Dkt. 33. The
REC was finalized in early March 2017. Id. at 8.
April 2017, after the REC was completed, the 63rd Command
asked Defendant to prepare an Environmental Assessment
(“EA”) for a time-sensitive helicopter training
for the 1158th AHB in Conroe, Texas (the
“Conroe EA”). Emerson Decl. ¶ 7. This
project planned to designate 8 landing zones as Army Reserve
local training areas, which triggered the need to prepare the
“Conroe EA.” Id., Ex. A at 22. An
initial step in preparing the Conroe EA involved writing the
Description of Proposed Alternatives (“DOPAA”),
which is a “subset of an EA” and “the first
two chapters of the environmental assessment.” Summary
Judgment Declaration of Denise Tran-Nguyen (“SJ
Tran-Nguyen Decl.”), Ex. E (“Russ Depo.”)
at 19, 31. Defendant subcontracted with AGEISS, Inc.
(“AGEISS”), an environmental services firm that
specializes in assisting federal agencies. Emerson Decl.
¶ 7. Melissa Russ, an employee of AGEISS, testified that
AGEISS managed and prepared most of the Conroe EA, except for
the biology and cultural sections. Ex. E, Russ Depo. at
Conroe EA was finalized and completed five months later, in
September 2017. Emerson Decl. ¶ 9. As part of the EA
drafting process, Defendant and AGEISS contacted federal,
state, and local agencies located in the counties surrounding
Conroe. Id., Ex. A at 98. The surrounding agencies
were informed of the change in land use at Conroe.
Id., Ex. A at 121 (“Up to this point, no
landing was required due to the mission training sets. Now;
however, additional land is needed to perform mission tasks
that require landing.”). No public concerns were voiced
despite the “very extended public outreach.” Ex.
E, Russ Depo. at 64.
oversaw the team of SPS employees and subcontractors
(including Ms. Russ of AEGISS and Mr. Oskar Burger) working
on the Conroe EA. Ex. B, Emerson Depo at 23-24. Plaintiff
claims he raised concerns about the Conroe EA's legality.
Complaint for Damages (“Compl.”) ¶ 19, Dkt.
1. Plaintiff alleges that a properly completed EA typically
requires 12-18 months. Compl. ¶ 18; Ex. A, Killgore
Depo. at 107; see also Lyon Decl., Ex. F at 84
(“Russ Depo.”) (“So including the DOPAA,
six months would be considered pretty darn aggressive,
expedited. A year would be considered kind of standard,
including the DOPAA.”). The USARC set a deadline of
only three months to complete the Conroe EA. Lyon Decl., Ex.
D (“Caballero Decl.”) at 116; Ex. A, Killgore
Depo. at 138.
argues this timeline was insufficient given the complexities
associated with the Conroe site. Ex. A, Killgore Depo. at
107. He felt that the three-month timeframe violated federal
environmental laws and regulations, specifically the National
Environmental Policy Act's (“NEPA”)
procedural requirements. He allegedly expressed this to his
supervisors (Chief Caballero and Mr. Will Emerson). Ex. A,
Killgore Depo. at 179-80. Plaintiff contends that he also
told Chief Caballero that omission of the prior land use,
i.e., the helicopter hovering, violated NEPA.
Id. at 201-02. The timeline, he argues, prevented
him (and his team) from understanding the impact of the prior
land use and undertaking the rigorous review process needed
for a compliant EA, thereby violating NEPA's “hard
look” requirement. Likewise, the failure to include a
discussion or description of the prior land use violated both
NEPA's hard look requirement and its “intent”
and “spirit” of full disclosure.
to Plaintiff, USARC refused to allow an extended EA timeline
and actively instructed all personnel working on the EA to
ignore and refrain from mentioning the prior helicopter use
in any part of the EA, including in the DOPAA. Id.
at 120-22 (“[T]his issue had to do with the transfer of
the helicopter battalion from attack to assault. And . . .
[Caballero] had directed [Plaintiff's] staff to remove
all reference to the fact that this helicopter battalion had
been operating on these parcels that we were to analyze . . .
.”); Ex. F, Russ Depo. at 55-57, 61-62 (stating that
Caballero instructed her to remove or refrain from
referencing the past operations on the Conroe parcel); Lyon
Decl., Ex. E (“Burger Depo.”) at 48, 64, 66,
192-93, 195 (“And then we were told to remove that
language completely . . . .”); Ex. D, Caballero Depo.
at 62-63, 138 (stating she instructed Plaintiff and his team
to remove references to the prior helicopter training from
the Conroe EA). Chief Caballero also instructed Plaintiff to
tell his team not to send emails or keep a written record of
the prior use issues surrounding the Conroe EA. Ex. E, Burger
Depo. at 80, 98; Ex. A, Killgore Depo. at 121-25. Any early
drafts referring to the prior helicopter operations were
edited to remove such references. Ex. D, Caballero Decl. at
63-64 (“I contacted them immediately and let them know
that we were striking [helicopter references] from the
DOPAA.”). Even vague allusions to prior helicopter
operations were forbidden and removed. Ex. E, Burger Depo. at
alleges that he repeatedly expressed his objections to Chief
Caballero. Ex. D, Caballero Depo. at 73-76, 136-37; Ex. A,
Killgore Depo. at 125-28, 258-59. He also reported the
alleged NEPA noncompliance to his supervisor, Mr. Emerson, an
SPS employee, on multiple occasions but was told to “do
what the client asks.” Ex. A, Killgore Depo. at 156-57;
Ex. B, Emerson Depo. at 35-36 (“In the DOPAA [Plaintiff
said] he thought that the previous helicopter training should
be addressed.”). Plaintiff thus argues that his
objections were ignored. Ex. D, Caballero Depo. at 81, 135-37
(stating that when USARC decided about a project, the 63rd
had to follow that decision, despite Plaintiff's
being instructed to omit references of prior helicopter use,
Mr. Burger, under Plaintiff's direction, submitted a
draft of the DOPAA portion of the Conroe EA to the 63rd and
the USARC that vaguely referenced the prior helicopter
operations, which was a “serious breach of
trust.” Ex. D, Caballero Depo. at 77. Chief Caballero
insisted the language be removed and reported the incident to
Mr. Emerson. Id. at 64, 68-69, 77-78. Mr. Emerson
instructed Plaintiff and Mr. Burger to apologize to Chief
Caballero and approach her with a “yes” attitude
as long as her directives were “legal, moral, and
ethical.” Ex. A at A-92.
22, 2017, Chief Caballero met with Mr. Emerson and Dr. Steve
Alexander (Plaintiff's SPS superiors) for a quarterly
check-in meeting. Ex. D, Emerson Depo. at 81-82. Most of the
meeting was spent discussing Plaintiff's performance.
Id. at 84-85. Dr. Alexander referred to the meeting
with Chief Caballero as “the worst client
meeting” he had ever had. SJ Tran-Nguyen Decl., Ex. C
(“Alexander Depo.”) at 74. After this meeting,
Mr. Emerson and Dr. Alexander determined Plaintiff had to be
terminated for failure to meet company and customer
expectations. Ex. D, Emerson Depo. at 80-81, 86.
originally filed his Complaint in state court.
Defendant's removed the case to federal court alleging
this Court has diversity jurisdiction over the
case. See Dkt. 1. On October 17, 2019,
Defendant filed a motion for partial summary judgment as to
Claims 1 and 4. Motion for Partial Summary Judgment
(“MSJ”), Dkt. 33. On November 18, 2019, Plaintiff
filed his Opposition. Opposition/Response re Motion for
Partial Summary Judgment (“Opp.”), Dkt. 37.
Defendant filed its Reply on December 2, 2019. Reply re
Motion for Partial Summary Judgment (“Reply”),
must grant summary judgment if the movant shows “that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In order to satisfy this burden,
“the moving party must either produce evidence negating
an essential element of the nonmoving party's claim or
defense or show that the nonmoving party does not have enough
evidence of an essential element to carry its ultimate burden
of persuasion at trial.” Nissan Fire & Marine
Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102
(9th Cir. 2000). “In order to carry its ultimate burden
of persuasion on the motion, the moving party must persuade
the court that there is no genuine issue of material
moving party meets its burden of production, the nonmoving
party must produce evidence to support its claim or defense.
Id. at 1103. If the nonmoving party fails to produce
enough evidence to create a genuine issue of material fact,
Rule 56(c) mandates the moving party win the motion for
summary judgment. See id.
Overview of NEPA
is a procedural statute that requires the federal government
to carefully consider the impacts of and alternatives to
major environmental decisions.” Native Ecosystems
Council v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012)
(citing 42 U.S.C. §§ 4321, 4331); see also
Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army
Corps of Eng'rs, 524 F.3d 938, 947 (9th Cir. 2008)
(“Unlike the [Clean Water Act], NEPA does not contain
substantive environmental standards, nor does the Act mandate
that agencies achieve particular substantive environmental
results.”). NEPA ensures that federal agencies take a
“hard look” at the environmental consequences of
their proposed actions before deciding to proceed.
Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350-51 (1989). Judicial review of agency
decision-making under NEPA is limited to determining
“whether the agency took a ‘hard look' at the
proposed action as required by a strict reading of NEPA's
procedural requirements.” Bering Strait, 524
F.3d at 947.
issue in this case is USARC's decision to exclude
information about prior land use from the Conroe EA. Hence, a
past action is at issue. The Council on Environmental Quality
(“CEQ”) provides guidance on the extent to which
agencies of the Federal Government are required to analyze
the environmental effects of past actions. RJN, Ex. 1 at 1.
The CEQ interprets NEPA and promulgates regulations.
Id. Exhibit 1 is a CEQ guidance document which
interprets NEPA and CEQ regulations regarding agencies
requirement to consider past actions in their cumulative
effects analysis. Importantly, “CEQ's
interpretation of NEPA is entitled to substantial
deference.” Andrus v. Sierra Club, 442 U.S.
347, 358 (1979).
environmental analysis required in NEPA is
“forward-looking.” RJN, Ex. 1 at 1. The effects
of past actions-like the prior helicopter
hovering-may warrant consideration in the
agency's cumulative effects analysis. Id.
Agencies should use “scoping” to focus on the
extent to which information is relevant. Id. (citing
40 CFR 1502.22). Based on scoping, “agencies have
discretion to determine whether, and to what extent,
information about the specific nature, design, or present
effects of a past action is useful for the agency's
analysis.” Id. (emphasis added). Agencies are
not required to list or analyze the effects of individual
past actions unless it is necessary to describe the
cumulative effect of all past actions combined. Id.
Notably, agencies retain substantial discretion as to the
“extent of such inquiry and the appropriate level of
explanation.” Id.; see also Marsh v. Or.
Nat. Res. Council, 490 U.S. 360, 376-77 (1989)
(deferring to agency factual resolution because it
“implicates substantial agency expertise”).
“Generally, agencies can conduct an adequate
cumulative effects analysis by focusing on the current
aggregate effects of past actions without delving into
the historical details of individual past
actions.” RJN, Ex. 1 at 2 (emphasis added).
Indeed, “[s]imply because information about past
actions may be available or obtained with reasonable effort
does not mean that it is relevant and necessary to inform
decision making.” Id. at 3. Accordingly, USARC
retained “substantial discretion” in determining
whether past activity was relevant for the Conroe EA.
Violation of California Labor Code Section 1102.5
Labor Code Section 1102.5(b) prevents an employer from
retaliating against an employee for disclosing information to
a person with authority over the employee or another employee
who has the authority to investigate, discover, or correct
the violation or noncompliance, if the employee has
reasonable cause to believe that the information discloses a
violation of a state, federal, or local law. California Labor
Code Section 1102.5(c) prevents an employer from retaliating
against an employee for refusing to “participate in an
activity that would result in a violation of state or federal
statute, or a violation of or noncompliance with a local,
state, or federal rule or regulation.” To establish a
prima facie case for retaliation under Section 1102.5, an
employee must show that (1) he engaged in protected activity,
(2) he was thereafter subjected to an adverse employment
action by his employer, and (3) there was a causal link
between the protected activity and the adverse employment
action. Morgan v. Regents of the Univ. of Cal., 105
Cal.Rptr.2d 652, 666 (Ct. App. 2000).
Protected Activity Under Section 1102.5(b)
activity” under Section 1102.5(b) requires: (1) a
disclosure; (2) based on reasonably based suspicions; (3) of
illegal activity. Johnson v. Johns Hopkins Univ. Applied
Physics Lab. LLC, 2013 WL 4046668, at *6 (S.D. Cal. Aug.
8, 2013) (citing Mokler v. Cty. of Orange, 68
Cal.Rptr.3d 568, 580 (Ct. App. 2007)). “To have a
reasonably based suspicion of illegal activity, the employee
must be able to point to some legal foundation for his
suspicion- some statute, rule or regulation which may have
been violated by the conduct he disclosed.” Turner
v. City & Cty. of S.F., 892 F.Supp.2d 1188,
1199-1200 (N.D. Cal. 2012) (citation omitted). Plaintiff need
only show a “genuine and reasonable concern” that
USARC was engaged in unlawful activity to be protected as a
whistleblower. McVeigh v. Recology S.F., 152
Cal.Rptr.3d 595, 608 (Ct. App. 2013). Plaintiff argues he
engaged in protected activity by repeatedly disclosing to
supervisors that the Conroe EA was ...