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Engelhardt v. Qwest Corp.

United States District Court, D. Minnesota

June 5, 2017

Walter Engelhardt, Plaintiff,
Qwest Corporation, a foreign corporation and Tim Buchholz, Defendants.

          Charles A. Delbridge, Esq., Nichols Kaster, PLLP, Minneapolis, MN, on behalf of Plaintiff.

          Thomas J. Conley, Esq., Law Office of Thomas J. Conley, Minneapolis, MN, on behalf of Defendants.




         On March 7, 2017, the undersigned United States District Judge heard oral argument on Defendants Qwest Corporation d/b/a CenturyLink, Inc. (“CenturyLink”), [1] and Tim Buchholz's (“Buchholz”) (together with CenturyLink, “Defendants”) Motion for Summary Judgment [Docket No. 18]. Plaintiff Walter Engelhardt (“Engelhardt”) alleges Defendants terminated his employment as a contract technician for CenturyLink in retaliation for his involvement in a class action lawsuit against CenturyLink. Engelhardt asserts a claim against Defendants for retaliation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.; a claim against CenturyLink for a violation of the Minnesota Whistleblower Act (“MWA”), Minn. Stat. § 181.931 et seq.; and a claim against Buchholz for tortious interference with prospective business relations. First Am. Compl. [Docket No. 14] ¶¶ 30-51. For the reasons set forth below, Defendants' motion for summary judgment is granted.


         A. Parties

         CenturyLink is a Colorado corporation with a registered office in Minneapolis, Minnesota. Id. at ¶¶ 3, 7. Defendant Buchholz is an operations director at CenturyLink. Buchholz Decl. [Docket No. 20] ¶ 1; Delbridge Decl. [Docket No. 27] Ex. 3 (“Buchholz Dep.”) 17:21-24. In this role, he oversees approximately 325 employee technicians and 35 to 50 contract technicians. Buchholz Dep. 19:17-24.

         Plaintiff Engelhardt is a Wisconsin resident who began working as a CenturyLink employee in 2000 as an installation and maintenance technician. First Am. Compl. ¶ 6; Delbridge Decl. Ex. 1 (“Engelhardt Dep.”) 18:14-19:2. In 2007, Engelhardt was one of over 300 employee technicians who joined a class action suit against CenturyLink (the “Brennan Lawsuit”) alleging that CenturyLink's “quality jobs per day” (“QJD”) performance metric violated the FLSA. Engelhardt Dep. 11:15-12:3; Brennan v. Qwest Commc'ns Int'l, Inc., No. 07-2024 ADM/JSM (D. Minn. 2007). In 2008, CenturyLink terminated Engelhardt for low productivity because he was not completing enough quality repair jobs each day. Id. 13:15-25. The Brennan Lawsuit settled in 2011. Engelhardt received a settlement payment as a class member. Engelhardt Dep. 162:19-163:1.

         B. Engelhardt's Return to CenturyLink as an Independent Contractor in 2011

         In 2011, Engelhardt learned that CenturyLink was seeking contractor technicians. Id. 21:7-8. CenturyLink uses contractor technicians from early April until mid-October to keep pace with the seasonal increase in workload. Buchholz Dep. 43:2-14. Engelhardt applied to and was hired by MP Nexlevel, LLC (“MP Nexlevel”), a company that supplies independent contractors to CenturyLink and other telecommunications companies. Engelhardt Dep. at 12:21-23; Conley Decl. [Docket No. 21] Ex. 4. The Master Agreement between CenturyLink and Nexlevel specifies that the personnel supplied by Nexlevel “are independent contractors for all purposes and at all times” and “are not employees or joint employees of CenturyLink.” Conley Decl. Ex. 4 ¶ K.

         MP Nexlevel initially assigned Engelhardt to work for a telecommunications company in Big Lake, Minnesota, but agreed to transfer him to CenturyLink because Engelhardt wanted to work in to St. Paul. Engelhardt Dep. 14:8-12; 25:8-11. While the transfer was pending, CenturyLink manager Chris Fry (“Fry”), who reports directly to Buchholz, sent Buchholz an email regarding Engelhardt that stated: “If we fired this field technician, how does he make it through screening and on our candidate list?” Delbridge Decl. Ex. 6. CenturyLink manager John Ardoyno (“Ardoyno”) expressed a similar concern in his email to MP Nexlevel, stating: “I just found out Walt Engelhardt was terminated from Qwest a few years ago. I had no idea he used to be an employee, but we don't want him back.” Id. Ex. 7. Notwithstanding Fry and Ardoyno's concerns, Engelhardt began working as an independent contractor for CenturyLink on August 25, 2011.

         On his sixth day working as a CenturyLink contractor, Engelhardt was dismissed from his assignment because his name appeared on a “Do Not Rehire” list maintained by CenturyLink. Buchholz Dep. 10:1-16. Buchholz made the decision to dismiss Engelhardt, understanding that the “Do Not Rehire” list was comprised of former employees who were terminated for code of conduct violations or other issues. Id. at 11:18-12:3. Buchholz was not involved in creating the “Do Not Rehire” list and did not investigate why Engelhardt's name was on it. Id. at 13:3-19. At the time Buchholz decided to release Engelhardt in August 2011, he did not know that Engelhardt had been a plaintiff in the Brennan Lawsuit. Id. at 8:18-21; 9:2-12; 11:14-17;15:15-19. Since this case was filed, Engelhardt has discovered that two other individuals on the “Do Not Rehire” list were plaintiff class members in the Brennan Lawsuit. Delbridge Decl. Exs. 14, 15, 20, 21.

         On September 28, 2011, approximately four weeks after he had been dismissed from the CenturyLink assignment, Engelhardt sent Buchholz an email captioned “Retaliation.” Attached to the email was a letter written by Engelhardt to Buchholz. Deblridge Decl. Ex. 4. In the letter, Engelhardt questioned whether Ardoyno's email stating “we do not want him back” was the beginning of retaliation against Engelhardt Id. at 1. The letter also stated that any policy by CenturyLink to refuse to rehire technicians who had been fired for QJD “can only be viewed as retaliation” because the policy would only affect plaintiffs in the Brennan Lawsuit. Id. at 2. Engelhardt concluded the letter by informing Buchholz that he had contacted an attorney and stating that he hoped Buchholz would “resolve this problem and keep it from being a legal battle.” Id. Buchholz replied to Engelhardt's email approximately two hours later and told Engelhardt he would look into the matter and get back to him the following week. Id. Ex. 12.

         On the evening of Friday, October 14, 2011, Buchholz called Engelhardt and informed him that he would be approved to return as a contractor for CenturyLink. Id. Ex. 13; Engelhardt Dep. 15:24-16:4, 54:14-18. Early the following Monday, October 17, Engelhardt received an email apparently intended for MP Nexlevel employee Todd Wolff from Jeff Bedard (“Bedard”) of MP Nexlevel. Delbridge Decl. Ex. 16. The email stated: “Todd, [CenturyLink employee] Rich [Nelson] told me on Friday that he or anyone else at Century Link will have no contact with Walt.” Id. Nevertheless, Bedard confirmed with Engelhardt on Wednesday, October 19, that “[e]verything is in and ready” for his placement at CenturyLink and that “we just need the ok to bring on another tech.” Conley Suppl. Decl. [Docket No. 30] Ex. 4.

         At the time Engelhardt was approved to return, CenturyLink was experiencing a seasonal decline in business and was no longer in need of additional contractors. Engelhardt Dep. 53:15-54:6, 55:2-4; Buchholz Dep. 74:5-18, 75:1-15. Thus, although Engelhardt had been approved to come back to CenturyLink on October 14, 2011, he did not return because he was told there was no work for him or any other contractors. Engelhardt Dep. 34:18-36:7. On November 1, 2011, CenturyLink eliminated all of its technician contractors. Id. at 53:18-54:6.

         In his deposition testimony, Engelhardt stated that although CenturyLink had approved his return as a contractor, he believed Buchholz “wasn't gonna let it happen” and was “not gonna put [him] to work.” Id. at 54:14-23. When asked whether he had any information suggesting that Buchholz's statements in October that there was no work for him were untrue, Englehardt answered: “None whatsoever.” Id. at 35:8-13. Also in his deposition, Engelhardt acknowledged that CenturyLink's business declined in the wintertime, but he surmised that Buchholz may have released all of CenturyLink's contractor technicians on November 1 to avoid bringing Engelhardt back to work. Id. at 53:18-54:10; 55:6-7. When asked if he had any reason to dispute that Buchholz released the contractors because business had declined, Engelhardt replied: “Just conjecture.” Id. at 53:18-54:1.

         In 2012, Engelhardt left his employment with MP Nexlevel and moved to North Dakota.

         C. Engelhardt's Return to CenturyLink as an Independent Contractor in 2015

         Years later, in July 2015, Engelhardt learned from his former co-worker at MP Nexlevel, contractor technician Charles Howe (“Howe”), that CenturyLink was again in need of technicians. Id. at 38:1-24. Engelhardt considered returning to St. Paul to work as a contractor for CenturyLink, but was concerned that CenturyLink may not want him back. Id. at 39:2-9. Engelhardt asked Brian Tyler (“Tyler”), his former union steward at CenturyLink, to contact CenturyLink's upper management and find out “[i]f they're mad at me.” Id. at 39:6-9. Tyler contacted CenturyLink manager Fry, who told Tyler: “You tell Walt whatever happened with Qwest has got nothing to do with CenturyLink and that he's welcome to come back.” Id. at 39:11-15. Engelhardt also spoke with MP Nexlevel supervisor Tedd Elliott (“Elliott”), and told him: “I'm not coming back . . . to work for you guys if CenturyLink's mad.” Id. at 52:20-21. Elliott responded by assuring Engelhardt that there was nothing in his previous employment file that should cause him any problems in returning as a contractor for CenturyLink. Id. at 53:2-5. Elliott also contacted Randy ...

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