United States District Court, D. Minnesota
Charles A. Delbridge, Esq., Nichols Kaster, PLLP,
Minneapolis, MN, on behalf of Plaintiff.
J. Conley, Esq., Law Office of Thomas J. Conley, Minneapolis,
MN, on behalf of Defendants.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
March 7, 2017, the undersigned United States District Judge
heard oral argument on Defendants Qwest Corporation d/b/a
CenturyLink, Inc. (“CenturyLink”),  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.
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.
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.
Engelhardt's Return to CenturyLink as an Independent
Contractor in 2011
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.
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.
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,
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.
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.
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
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.
2012, Engelhardt left his employment with MP Nexlevel and
moved to North Dakota.
Engelhardt's Return to CenturyLink as an Independent
Contractor in 2015
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 ...