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Killgore v. Specpro Professional Services, LLC

United States District Court, N.D. California, San Jose Division

December 19, 2019

AARON KILLGORE, Plaintiff,
v.
SPECPRO PROFESSIONAL SERVICES, LLC, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: DKT. NO. 33

          EDWARD J. DAVILA, UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         A. Factual Background

         1. Conroe Environmental Assessment

         Plaintiff 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.

         Whenever 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.

         Around 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 34-36.

         The 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.

         2. Plaintiff's Termination

         Plaintiff 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.

         Plaintiff argues this timeline was insufficient given the complexities associated with the Conroe site.[1] 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.

         According 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 84, 102-03.

         Plaintiff 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 protesting).

         Despite 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.

         On June 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.

         B. Procedural History

         Plaintiff originally filed his Complaint in state court. Defendant's removed the case to federal court alleging this Court has diversity jurisdiction over the case.[2] 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”), Dkt. 38.

         II. LEGAL STANDARD

         A court 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 fact.” Id.

         If the 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.

         III. DISCUSSION

         A. Overview of NEPA[3]

         “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.

         At 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).

         The 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.

         B. Violation of California Labor Code Section 1102.5

         California 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).

         1. Protected Activity Under Section 1102.5(b)

         “Protected 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 ...


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