NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0756n.06 No. 12-5643 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

GARY VAN DER BO EGH, Plaintiff-Appellant,

v. ENERGYSOL UTI ONS, I NC.; PADUCAH REMEDI ATI ON SERVI CES, L L C; BECHTE L J ACOBS COMPANY, L L C, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ON APP E AL FR OM T HE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF KE NTUCKY

BEF ORE: GRI FF I

N and KE THL EDGE, Circuit Judges; and Z ATKOF F, District Judge

. * GRI FF I N, Circuit J udg e. Plaintiff Gar

y Vande r Boe g h eng ag ed in a rang e of protec ted activity as landfill manag er at the Paduca h Gase ous Diffusion Plant (“PGDP”) , repor ting sever al environmenta l violations. At rele vant times, Vande r Boeg h worke d for defenda nt-contra ctor Bec htel J acobs Company (“B J C”) until BJC subcontrac ted with WES KEM to handle waste manag ement, at which time Vande r Boe g h transitioned to WES KEM. Subsequently , defe ndant-c ontrac tor Paducah Remedi ation Service s (“PRS”) took over the PGDP contra ct and subcontrac ted with defe ndant Energ y Soluti ons to handle
waste manag emen t

. Va n d er Boe g h claims that he was purposely draf ted out of PRS ’s bid on the PGDP contra ct as part of a “re taliatory course ” to end his employ ment. Ultimately , Energ y Soluti ons

The Honora

ble L awr ence P. Zat k o ff

, Senior United States District J udg e for the Easter n * District of Michig an, sitting by desig nation.No. 12-5643

Vander Boe

gh v. Ene rgySolutions, Inc., et al. employ ee J ohn Kelly decide d not to hire Vande r Boe g h as lan d fi l l m an ag er. Thus, when the transition from BJ C -W E SKEM to PRS -Ener g y Soluti ons was complete, Vande r Boe g h’s employ ment terminated. Vande r Bo egh filed an action alleg ing reta liation under various fede ral environmenta l statutes

. T h e d i strict court g rante d summary judgme nt in favor of all defe ndants. For the rea sons that follow, we reve rse the summary judgme nt g rante d in favor of Energ y Soluti ons, aff irm the summary judgme nt g rante d in favor of PRS and BJC, and rema nd for further proce eding s consistent with this opi nion. I

. The Depa rtment of Energ y (“D OE”) hired Vande r Boe g h in 1992 t o wo rk at the PGDP, wher e he beca

me a cer tified landfill manag er. I n 1998, DOE awa rded the PGDP c ontrac t to BJC. I n 2000, BJC s u b contracted with WES KEM to handle waste manag ement. Throug hout these transitions, Vander

Boe g h maintained his landfill manag er position. As landfill manag er, Vande r Boe g h was responsible for ensuring that the disposal of nuclea r waste complied with the applicable laws, reg ulations, and permit require ments. I n particula r, there

wer e s t an d ar d s perta ining to leac hate manag ement and disposal, and the Kentucky Division of 1 Waste M an ageme nt (“K

DWM”) require d key personne l disclosure statements from the landfill manag er a s part of the permit applica tion process. On Fe bruar

y 2, 2001, Vande r Boe gh circ ulated comments to manag ement expressing

conce rns reg arding leac hate storag e capa city and leaka g e from the l andfill

. On Marc h 4, 2001,

L eac hate is the liquid substance that drains from a landfill

. I t co ntains environmenta lly 1 harmful mate rial that ca

n pose a thre at to the natura l water source if not collecte d proper ly

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gh v. Ene rgySolutions, Inc., et al.
Vande r Boe g h sent an em ai l t o m anag ement war ning that leac hate volumes had rea ched critica l levels. There afte r, BJC employ ee Kevin Ba rber becam e i ncre asing ly threa tening toward Vande r Boe gh and indicated during a meeting that Vande r Boe g h’s key personne l disclosure statements

wer e not require d and would not be submitt ed to KDWM. According to Vande r Boe g h, not submitt ing his d i s cl o s ure statements would have threa tened his job as landfill manag er. Vande r Boe g h further alleg ed that, in October 2001, BJC and W E S KE M m anag ers beg an conce aling the fac ility ’s def

iciencie s from KDWM and attempted to e liminate Vander Boe g h’s support staff

. I n Dec ember 2001 and J anuar y 2002, Vande r Boe g h filed whistleblower complaints throug h DOE’s Employ ee Concern Prog ram (“ECP”). Acc ording to Vande r Boe g h, a few months later, BJC attempted to remove him from the permit by reque sting elimination of his key personne l disclosure
statements. On Fe bruar

y 28, 2002, Vande r Boe g h met with a pproxi mately thirty individuals, including BJC’s atto rn ey . At the meeting , Vande r Boe g h indicated that BJC had misidentified cer tain hazardous waste, which would result in Notices of Violation from the KDWM. BJC’s attorney told Vande r Boe g h not to contac t KDWM reg arding the err ors. I n November 2002, KDWM issued Notices of Violation ag ainst DOE for improper disposal of hazardous waste, which Vande r Boe g h had re ported. I n J uly 2003, the DOE hear ing office r who considere d Vande r Boe g h’s whistleb l o wi n g alleg ations found sever al instances of reta liation, including hara ssment and intimi dation by Ba rber

. The hear ing office r direc ted BJC to ref rain from chang ing Vande r Boe g h’s job status for at least one y ear . - 3 -No. 12-5643

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gh v. Ene rgySolutions, Inc., et al. Subsequently , DOE decide d to solicit new bids f or the PGDP contra ct and issued a reque st for pr oposals. Although N orthwind Corporation won in the i nitial bidding process, DOE decide d
to perf orm a rebid afte r rec eiving a complaint from PRS

. To prepa re the waste manag ement portion of its bid, PRS subcontract ed with Dura tek Fe dera l Service s, which Energ y Soluti ons ultimately acquir ed. By then, Ba

rber had left BJC to work for Energ y Soluti ons, and he helped prepa re PRS ’s 2 bid. Ba rber testified that the bid la ng uag e was revie wed and approve d by PRS manag ement. PRS
won t he rebid and subcontracted with Energ y Soluti ons to take ove r t h e waste manag ement duti es previously perf

ormed by WES KEM. L ike previous PGDP contra cts, the contra ct enter ed i n t o by PRS contained a provision defining “g randf ather ed employ ees” and g ranting them “a pref ere nce in hiring for vaca

ncies for non-mana g eria l positions,” including “a r ight of first ref usal for vaca

ncies . . . in positi ons substantially equivalent to the positions they curr ently perf orm.” Be g inning in J anuar

y 2006, opera tions at the PGDP wer e transitioned from BJC-W ESKEM
to PR S- E nerg y Soluti ons. During the transition, Energ y Soluti ons employ ee J ohn Kelly was assig ned

as projec t manag er f

or mater ial dispositi on, responsible for perf orming “due diligenc e” during the transition period. His job was to ensure a smooth transition from the curr ent contra ctors to the new contra ctors in the area of materia l dispositi on. Acc ording t o Ke l l y , he had complete discretion in selec ting the landfill manag er under the new contra ct. When Kelly first arri v ed , he knew that Vande r Boe g h was the landfill manag er under the previous contra ct beca use his name was listed on the org anizational char

t, but Kelly

never had occ asion to persona lly interac t with Vander Boe g h.

Although the acqu is it io n o c c u r r e d s ometime afte r the transition, to avoid confusion, Dura tek 2 Fe dera l Service s will be ref err ed to here inafter as Energ y Soluti ons, the named defe ndant in this case .

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On Fe bruar

y 13, 2006, Vande r Boe g h met with the “contr act transition team” that repor ted to K elly , including Energ y Soluti ons employ ee Paul Corpstein. Vande r Boe g h g ave a prese ntation descr ibing WES KEM’s landfill opera tions and manag ement. After war d, he asked Corpstein about Energ y Soluti ons’ fre e liquid problems and commented about the leac hate storag e issues at the PGDP. On Fe bruar

y 14, 2006, Vande r Boe g h met with PRS officia ls J ohn Razor and Mike Spry to inform them that BJC’s repor t, which indicated that his whistleblower c o mplaints had been resolved,

was incorre ct. Razor responde d that those complaints had “nothing to do with [t hem],” though Spry

was ab l e t o ac ce s s Vande r Boe g h’s pending claim online to see that it was unresolved. After discussing the leac hate storag e capa city desi g n flaws of the new leac hate trea tment plant, Vande r Boe g h asked Razor how he would know when to a pply for the landfill manag er position under the

new c ontrac t. Razor told Vander B oeg h to look for the job posting on PRS’s website. On Fe bruar

y 21, 2006, Vande r Boe g h filed a third ECP whistleblower complaint, claiming that Ba rber had bee n instrumental in removing Vande r B oeg h and inserting himself as the landf ill manag er in P RS’s bid. Alt houg h the bid did not identify the landfill manag er by

name, accor ding
to Vande r Boeg h, Ba

rber envisioned hi mself i n the position and descr ibed the landf ill manag er as

an individual having his ow n cre dentials. Corpstein also stated that B arbe r had visions of himself becoming the landfill manag er. Acc ording to Corpstein, the rea son that Ba rber did not become the landfill manag er w as bec ause he decide d to leave the company befor e the e nd of 2005. Ba rber , howeve r, testified that he had no inte re s t i n obtaining the position and the bid descr ibed the landfill manag er acc ording to the require ments set forth i n DOE’s reque st for

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gh v. Ene rgySolutions, Inc., et al. proposals. Vande r Boe g h, on the other hand, aver red that DOE’s reque st for prop o s al s did not specify the qualifica tions for the landfill manag er and no other bidder included such qualifica tions for the position in their proposals. Fur ther, as descr ibed in an unidentified OSHA document, PRS ’s bid on the PGDP contra ct “identified a State of Kentucky Certified L andfill Manag er with 12 y ear s of experience coming to the job. That manag er was identified throug h interviews as Kevin Ba rber

. Howeve r, Mr. Ba

rber left [Energ y Soluti ons] befor e the t ra n s i t i o n o f work

. . . .” Asked in his deposition whether he “desc ribe[d] the anticipated holder of the landfill manag er position in a way that [m atche d his] own qualifica tion s an d experience ,” Ba rber replied, “I don’t rec all writing any such text .” Asked whether there was “an int en t o r p l an ” to draf t the bid in a manner that would exclude Vande r Boe g h from the landfill manag er position, Ba rber replied, “I don’t reme mber prepa ring or sug g esting any

such lang uag e.” Kelly oversa

w and worke d closely with Corpstein, who was transfe rre d to the PGDP to assist in the transition. Wit hin two wee ks of his a rrival at the PGDP, Corpstein expressed interest in the landfill manag er position, and in a c onversa tion with Kelly , he offere d to take the job. Ac cording
to Corpstein, Kelly verba lly offe red him the landfill manag er position sometime in late Fe bruar y or the first we ek of Ma

rch 2006. Corpstein was the only candida te whom Kelly considere d for the landfill manag er position. The position was never posted, and no interviews wer e conducte d. Acc ording to Kelly , no one told him not to hire Vander Boe g h, and he was unaware of Vander Boeg h’s whis tleblower complaints when he made the hir ing de cision. Kelly also claims that he was unawa re that Vande r Boeg h had raised conce rns of safe ty or reg ulatory compliance with reg ard to the landfill’s leac hate capa city at

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that time. Alleg edly , Kelly d i d not lear n of Vande r Boe g h’s leac hate conce rns until he attended meeting s in mid-late Marc h or ear ly April. J ames Hopper , Energ y Soluti ons’ senior vice president, endorse d the decision to hire Corpstein as landfill manag er, a decision which Hopper say s occur red in late Fe bruar

y or the fir st week of

Marc h 2006. At the time of his hire, Corpstein did not hold the proper cer tification for the landfill manag er position. On March 9, 2006, he applied for the nec essar

y training

. Energ y Soluti ons em p l o y ee Matt L aB arg e also repor ted to Kelly during the transition. L aB arg e knew ear ly on that Vande r Boe g h was interes t ed in the landfill manag er position. To L aB arg e’s knowledg e, Kelly kn ew about Vande r Boe g h’s protec ted activities sometime befor e April 24, 2006. Throug h second channe ls, L aB arg e lear ned that Vande r Boe g h met with Spry and Razor on Fe bruar

y 14, 2006. Howeve r, he does n o t k n o w wh at was said at the meeting

. Asked whether he was awa

re that Vande r Boe g h had complained to managem en t o n Marc h 15, 2006, reg arding the conce rn of a leac hate spill, L aB arg e stated that he had seen emails about the conce rn. He sa w a c ouple emails that we re se nt in late Marc h and ea rly April. On Fe bruar

y 24, 2006, Vande r Boe g h filed a fourth ECP whistleblower complaint, alleg ing that DOE, BJC, and PRS wer e conspi ri n g to end his employ ment due to his protec ted activities. L ater that day , he attended a permit revie w meeting

. Kelly , C o rp s t ei n , and L aB arg e wer e in
att endanc e. During the meeting , Vande r Boe g h raised the issue of key personne l d i s cl o s u re statements, but a member of the PRS compliance staff told him that the topic would not be par t of the discussion that day

.

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On M arch 10, 2006, Vande r Boeg h sent a letter to Razor and S pry noting leacha te s torag e tank defic iencies and trea tment plant desig n defic iencies, including a failure to trea t rad i o l o gi ca l contaminants. On Marc h 15, 2006, he issued a “Stop Work Orde r” that halted opera tions to preve nt

an imminent over flow of potentially contaminated leac hate. On Marc h 16, 2006, Razor r eplied to Vande r B oeg h’s letter, tha nking him for

bring ing the information to their attention. On Marc h 14–15, 2006, PRS ’s website adver tised a job opening for cer tif i ed l andfill manag er. On April 12, 2006, Vande r Boe g h interviewe d for what he thou gh t wa s t h e landfill manag er position, but he was informed at the interview that he was not being considere d for that position. L aB arg e testified that Vande r Boe g h was interviewe d instead for a field eng ineer position. On April 3, 2006, PRS submitt ed a cer tified statement indicating that the continu at ion or chang e in the cer

tified landfill manag er w ould be addre ssed afte r hiring

. On April 13, 2006, DOE
sent a letter to KDW M i n d i cating that the selec tion of the cer tified landfill manag er was not y et complete, but that Corpstein had been hired for the job and was anticipated to become the cer tified landfill manag er. Corpstein’s application for training was approve d on Marc h 21, 2006, and he was approve d

as the “interim landfill manag er” on April 19, 2006. Corpstein signe d the offe r letter for the landfill manag er position i n mid-April. Corpstein attended training on May 17–19, 2006, and he rec eived his certific ation on May

26, 2006. On April 23, 2006, the transition was compl ete—B J C-WES KEM cea sed activities, and Vande r Boegh ’s employ ment terminated. Vande r Boe g h filed an employ ment discrimination complaint with the Depa

rtment of L abor. He r emoved the a ction to fede ral district cour t pursuant

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to 42 U.S.C. § 5851(b)( 4). The complaint alleg ed reta liation in violation o f t h e Energ y R eo rga n ization Act (“ERA” ) (Count I ); the Fe dera l Claims Act (“F CA”) (Count I I ); and other environmenta l statutes (Count I I I ). De fenda nts moved for summary

judgme nt. The district court held that Energ y Soluti ons was entitled to summar y judgme nt beca

use no g enuine issue of

materia l f

act exis ted that (1) the rele vant adver se employ ment action occur

red no later than Marc h 9, 2006, when Kelly hired Corpstein; and (2) Kelly had neither actua l nor imputed knowledg e of Vande r Boe g h’s protec ted activity at that time. I t held that PRS and BJC wer e entitled
to summary judgme nt be cause no g enuine issue of materia l f act exis ted that they did not influence the hiring decision. This appe al followed. I I

. We revie w de novo a dis trict court’s gr ant of s u m m ar y judgme nt. Geiger v. Tower Auto. , 579 F.3d 614, 620 (6th Cir. 2009). Summary judgme nt is proper when, viewing the evidenc e in the light most favor able to the nonmoving party , there is no g enuine dispute as to any materia l fac t and the moving party is entitled to judgme nt as a matter of law. Fe d. R. Civ. P. 56(a) ; CareToLi ve v. FDA , 631 F.3d 336, 340 ( 6th Cir. 2011). “To state a claim under the whistleblower provision of an environmenta l statute, the plaintiff
must establish that his employ er reta liated ag ainst him beca use he eng ag ed in a protec ted activity .” Sasse v. U.S. Dep’ t of Labor , 409 F.3d 773, 779 (6th Cir. 2005). I n g ener al, a prima facie case of
reta liation r equire s the plaintiff to show that (1) he eng ag ed in pr otected activity ; ( 2) the employ er had knowledg e of the protec ted activity ; (3) he suffe red an adver se employ ment ac t i on; and (4) a

causa l connec tion exis ted betwee n the protec ted activity and the adver se employ ment action. W

asek

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gh v. Ene rgySolutions, Inc., et al.

v. Arrow Energy Servs., Inc

. , 6 8 2 F. 3 d 4 63, 468–69 (6th Cir. 2012). Simi larly , the ER A requires the plaintiff to demonstrate t h at (1 ) h e eng ag ed in protec ted activity ; (2) he suffe red an adver se empl o y m en t ac t ion; and (3) the protec ted activity was a “contr ibuting fac tor” in the adver se employ ment action. 42 U.S.C. § 5851(b)( 3)(C); TVA v. U.S. Sec’ y of Labor , 59 F. App’x 732, 738 (6th Cir. 2003). I I I

. We first addre ss whether

the district court prope rly g rante d summary

judgme nt in favor of Energ y Soluti ons. Energ y Soluti ons does not dispute that Vande r Boegh en g ag ed in protec ted activity and suffe red an adver se employ ment action. The issues in dispute are (1) when the rele vant adver se employ

ment action occur

red; (2) whether the decisionmake r had actua l o r i mputed knowledg e of Vande r Boe g h’s protec ted activity at that time; and (3) whether Vande r Boe g h lacks standing to bring a F CA claim ag ainst Energ y Soluti ons. 3 Vande r Boe g h arg

ues t hat a g enuine issue of materia l fac t exis ts whether an adver se employ ment action occur

red in fall 2005 when Ba

rber , then employ ed by Energ y Soluti ons, draf ted the waste manag ement portion of PRS ’s bid so as to eliminate Vande r Boe g h as the landfill manag er and insert himself into that role. PRS ’s bid did not identify the landfill manag er by name. Nonethele ss, Vande r Boe g h poin t s t o a statement made by Corpstein to a Depa rtment of L abor investiga tor that Ba

rber had visions of himself becoming the landfill manag er. Vande r Boe g h also relies on an unidentified OSHA docu m en t

. T h e document indicates that the landfill manag er in

The dissent questions whether Vande r Boe g h has statutory standing to sue under the ERA. 3 This issue was not raised below, it was not briefe d on appea l, and it was n o t discussed at oral arg ument. We, theref

ore, c onclude that sua sponte consideration would be improper.

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PRS ’s bid was identified during OSHA interviews as Ba rber and the plan for Ba

rber to take that position never transpire d beca use he left the company befor e the transition. L astly , Vande r Boe g h emphasizes Ba

rber ’s documented history of reta liating ag ainst him, citing the DOE decision issued in 2003. I n contra st, Ba

rber testified that he draf

ted the descr iption of the landfill manag er acc ording
to the require ments set forth in DOE’s re q u est for proposals. Ba rber also testified that he had no interest in obtaining the landfill man age r p o sition. Asked whether he had “desc ribe[d] the anticipated holder of the l andfill m an age r p o sition in a way that [m atche d his] own qualifications and expe ri en ce , ” Ba

rber replied, “I don’t rec all writing any such text .” Asked whether there was “an intent or plan” to draf t the bid in a manner that would exclude Vande r Boe g h from the landfill manag er position, B arbe r replied, “I don’t reme mber prepa ring or sug g esting any such lang uag e.” The district court err oneously rea soned that Energ y Soluti ons was entitled t o s ummary judgme nt beca

use Vande r Boe g h failed to demonstrate that the bid lang uag e “constituted a decision to terminate [ him] ” or “pre cluded him from obtaining the landf ill manag er position.” The se we re improper inquires. Actionable reta liation is not limit ed t o s o -called “ultimate employ ment decisions” that adver sely alter the terms and conditions of employ ment. Burlington N. & Sante Fe Ry. Co. v. W

hite , 548 U.S. 53, 64, 67 (2006) (“A provision limited to employ ment-re lated actions

wo uld not deter the many forms that eff ective reta liation can take.” ). Rather, an ad v er s e employ ment action in the reta liation context require s a showing “that a rea sonable employ ee would have found the challeng ed action materia lly adver se, which

. . . means it well might have dissuaded

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a rea sonable worke r from [en gagi n g in protec ted activity ].” Id

. at 68 (interna l quotation marks omitted). Stil l, Vande r Boeg h has failed to demonstrate a gen u i ne is sue of materia l fac t whether the bid lang uag e was materia lly adver se. Most signific antly , Vande r Boe g h has failed to include in the

rec ord the bid terms that he alleg es wer e draf ted to mirror Ba

rber ’s q u ali fica tions. Wit hout revie wing the bi d lang uag e, we are unable to deter mine whether a reasonable jury could find by a p re p o ndera

nce of the evidenc e that those terms wer e materia lly adver se. L ikewise unavailing is Vande r B oeg h’s bar e asse rtion that the DOE’ s reque st for pr oposals did not require spe cifica tions for the landfill manag er position. This may or may not be corr ect; but there is nothing in the rec ord
to support it. Thus, we are left with Ba rb er ’s testimony , which appea rs straig htforwa

rd. Acc ording ly , we co n clude that Vande r Boeg h is unable to establish that PRS ’s bi d lang uag e was materia lly

adver se. 4 As a claimed second adver se employ ment action, Vande r Boe g h points to Kelly ’s decision
not to hire him as landfill manag er. Undisputedly , the decision not to hire Vande r Boe g h constitutes

an adver se employ

ment action. The issue is when the decision occur red. The district court held that the decision to hire Corpstein was made no later t h an Marc h 9, 2006. Vande r Boe g h, howeve r, arg ues that a g enuine issue of materia l fac t exis ts whether that decision occur red as late as mid-April 2006. We disag ree . Despite this holding, we are troubled by the circ umstances surrounding the d r afting proce ss. 4 Energ y Soluti ons chose Ba rber , an indivi d u al wi t h a documented history of reta liating ag ainst Vande r Boe g h, t o d ra ft t he waste manag ement portion of PRS ’s bid. Vande r Boe g h could have arg ued that the s elec tion itself of Barbe r would dissuade a rea sonable work er in his position from eng ag ing in f

urther pr otected a ctivity . Howeve r, Va nder B oeg h has not made suc h a cla im. - 12 -No. 12-5643

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The rec ord supports the finding that the d ec i s i o n t o hire Corpstein occur red no later than Marc h 9, 2006, as the district court deter mined. Corpstein testified that Kelly verba lly offe red him the landfill manag er position sometime in late Fe bruar y or the first wee k of Marc h 2006. Hopper , Energ y Soluti ons senior vice president (who endorse d the decision to hir e Corpstein), also testified
t h at the decision was made in late Fe bruar y or the first wee k of Marc h 2006. Finally , C o rp s t ei n applied for

the nec essar

y training to become a

cer tified landfill manag er on Ma rch 9, 2006. The evidenc e on which Vande r Boe g h relies does not cre ate a g enuine issue of materia l fac t whether the decision occur red later. First, the fac t that Corpstein did not sign the offe r letter for the landfill manag er position until mid-April is n o t inconsistent with the decision having been made much ear lier. Signing the offe r letter simply memorialized a decision previously made. Second, althoug h PRS ’s website adver tised a job opening for landfill manag er as late as Marc h 15, 2006, no

one other t h an C o rp s t ein was ever considere d or interviewe d for the landfill manag er position. Although Vande r Boe g h arr ived at an interview with the belief that he was being considere d for the landfill manag er position on April 12, 2006, it was m ade clear to him during the inter view that he was not being considere d for that position. L ikewise, evidenc e that PRS submitt ed a cer tified statement to KDWM dated April 3, 2006, indicating that the continuation or chang e in the cer tified landfill manag er would be addre ssed afte r hiring , is consistent with Kelly having alre ady hired Corpstein, g iven that he lacke d cer tification at the time. There could be no officia l chang e in the cer tified landfill manag er until Corpstein rec eived his cer tification. Corpstein applied for the nece ssary training on Marc h 9, 2006, and he rec eived his

cer tification on May

26, 2006.

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gh v. Ene rgySolutions, Inc., et al. Finally , althoug h DOE sent a letter to KDWM d ated April 13, 2006, indicating that the selec tion of the landfill manag er was not y et complete, what Vande r Boe g h fails to me ntion is that the letter also states that Corpstein had been hired for the j o b an d was anticipated to become the

cer tified landfill manag er. Thus, the letter to KDWM lends further suppo rt t o t h e d istrict court’s deter mination t h at t h e h i ring decision had alre ady occur red. Acc ording ly , Vande r Boe g h has not p resented evidenc e from which a rea sonable jury could find that the decision to hire C o rp s t ei n

occur red a fter Ma

rch 9, 2006. The rema ining issue is whether Kelly knew o f Vande r Boe g h’s protec ted activity befor e Marc h 9, 2006. “The decisionmake r’s knowle dg e of the protec ted ac tivity is an essential element of t he prima facie case of unlawful retaliation.” Frazier v. USF Holland, Inc. , 250 F. App’x 142, 148 (6 t h C i r. 2007) (citing Mulhall v. Ashcroft , 287 F.3d 543, 551 (6th Cir. 2002)). Actual knowledg e can be established throug h direc t evidenc e that the decisionmake r knew of the protec ted activity or throug h circ umstantial evidenc e from wh i ch a rea sonable jury could infer that the decisionmake r knew of the protec ted activity

. Mulhall , 287 F.3d at 552–53. A decisionmake r’s disavowal of knowledg e may be rebutted with counter vailing evidenc e . See Lippert v. Cmty. Bank, Inc ., 438 F.3d 1275, 1282 ( 11th Cir. 2006). We reje ct many of Vande r Boe g h’s arg uments on th e i s s u e o f actua l knowledg e. First, Vande r Boe g h arg ues that Ke lly acquir ed knowledg e of his pr otected activity at a meeting held on Fe bruar y 24, 2006. Acc ording to Vande r Boe g h, those in attendanc e included Kelly , Corpstein, and L aB arg e. During this meeting , Vande r Boe g h rai s ed t h e issue of key personne l disclosure statements, but a member of th e P R S compliance staff told him that the topic would not be

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discussed. This exchang e did not reve al any information about Vande r Boe g h’s protec ted activity

. Thus, no one at the me eting acquir ed knowledg e of V ander Boe g h’s protec ted ac tivity

. Second, much o f t h e ev i dence on which Vande r Boe g h relies came too late. L aB arg e testified that Kelly knew about Vande r Boe g h’s protec ted activity sometime befor e April 24, 2006. Vande r Boe g h arg

ues that Kelly acquir ed kn o wl edg e of his protec ted activity based on the “Stop Work Orde r,” which issued on Marc h 15. He also points to Kelly ’s attendanc e at m ee t ings in mid-late Marc h or ear ly April at which leac hate conce rns wer e discussed, as well as email chains
sent during this same time fra me. Finally , Vande r Boe g h calls attention to alleg ed depar tures from proce dure that occur

red i n April

. But none of this evidenc e shows that Kelly had knowledg e of Vande r B oeg h’s protec ted ac tivity befor e Mar ch 9, 2006. Vande r Bo egh also arg ues that an employ er’ s failure to follow its normal proce dure can provide circ umstantial evidenc e of a reta liatory motive and, t hus, actua l knowledg e of protec ted activity

. S

ee De F o r d v. Sec’

y of Labor , 700 F.2d 281, 287 (6th Cir. 1983). I n particula r, Vander Boe g h claims that the contra ct provision g ranting “g randf ather ed employ ees” a hiring pref er en ce for vaca ncies, including a rig ht of first ref usal in the job they curr ently perf orm, was not followed. The PGDP contra ct enter ed into by PRS does, in fac t, contain a provision providing this hiring pref ere nce, and Vande r Boe g h maintained his position throug h al l p re v i ous contra ct transitions. Fur ther, one could rea sonably infer that Kelly rea d the contra ct as part of his due d i l i gen ce responsibility

during the transition. The fla w in the ar g ument, howeve r, is tha t V ander Boe g h has failed to prese n t an y ev idence bey ond his persona l belief that he was a g randf ather ed employ ee

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under the new contrac t. Only “non-ma nag eria l” employ ees are c onsidered “g randf ather ed” under the contra ct, and the la

ndfill manag er position is specifica lly denoted a s “mana g eria l.” Nonethele ss, other circ umstantial evidenc e supports Vande r Boe g h’s claim. Vande r Boe g h filed a complaint with DOE on Fe bruar y 2 1, 2006, and another on Fe bruar y 24, 2006. These complaints wer e rea dily available on DOE’s website. Fur ther, Kelly was responsible for overse eing the transition of landfill o p er ati ons and manag ing “due diligenc e” during the transition period, sp ec i fi cally in the are a of materia l dispositi on. Despite his due diligenc e responsibility , Kelly declined to so much as interview Vande r Boe g h, who h as we l l over a deca de of experience as a

cer tified landfill manag er. We conclude that a rea sonable jury could infer that Kelly , the individual responsi b l e for perf orming due diligenc e in the are a of materia l dispositi on, would have discovere d environmenta l complaints reg arding the l andfill’s l eac hate storag e capac ity , either through the DOE’s w ebsite or throug h other channe ls. Kelly was also responsibl e for hiring a landfill manag er. Under these circ umstances, it was likewise rea sonable for a jury to infer that, as part of the hiring proce ss, Kelly would have acquir ed information reg arding the curr ent landfill manag er and his protec ted activities,

even though he ultimately selec ted Corpstein. These duties, afte r all, wer e part of Kelly ’s job. The dissent descr ibes Kelly as “a very busy man” with “a busy schedule and numerous responsibilities.” Th i s o n l y further s our point. Kelly ’s job duties included perf orming due diligenc e and hiring a landfill manag er—the se we re the tasks with which Kelly alleg edly “busied” himself.

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For these rea sons, the ci rcumstantial evidenc e establishes a g enuine issue of materia l fac t whether Kelly had actua l knowledg e of Vande r Boe g h’s protec ted activity

. The district court err ed in concluding otherwise. Vande r Boe g h also advanc es an a lternative “ imputed knowledg e” or “cat’s paw” theory of liability , which orig inated in the employ ment discrimination context. The district c ourt seeme d to opera te under the assumption that this theory is available in a reta liation case such as this, explaining that “[k] nowledg e of a plaintiff’s protec ted activities may also be imputed to a decision maker under the ‘ca t’s paw’ theory .” Energ y Soluti ons appea rs to assume the same in its briefing

. But the availability of cat’s paw theory to impute knowledg e of protec ted acti v i t y t o the decisionmaker is less t h an cl ea r u n der this court’s prec edent, and for this rea son, it may become nece ssary for the district cour t t o an al y z e t he issue on rema nd. See Arendale v. City of Mem phis , 519 F.3d 587, 603–0 4 & n . 1 3 (6th Cir. 2008) (re cog nizi ng “ca t’s paw” as a theory of imputing discriminatory bias ). To the extent that “ca t’s paw” theory is available , we conclude that g enuine issues of materia l fac t exis t whether Corpstein lear ned of Vande r Boe g h’s protec ted activity befor e Marc h 9, 2009, and there afte r influence d Kelly ’s hiring decision

. On Fe bruar y 13, 2006, Vande r Boe g h spoke with Corpstein and commented about the leac hate stora g e proble ms at the PGDP. Corpstein and Kelly worke d closely toge ther, and within two wee ks of his arr ival at the PGDP, Corpstein told Kelly that he wa s interested in the la ndfill manag er position and off ere d to take the job. Finally , Energ y Soluti ons arg ues that Vande r Boe g h’s reta liation claim under the FCA fails

as a m atter of law beca use Vande r Boe g h was never employ ed, manag ed, or supervise d b y Energ y Soluti ons. See 31 U.S.C. § 3730(h)( 1) (limiti ng relief from reta liatory acts to “any employ ee,

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contra ctor, or ag ent”)

. The district court did not rea ch this issue. I n light of the above analy sis,

reve rsing t h e gra n t of summary judgme nt, we direc t the district court to addre ss this issue on

rema nd. I V. Next, we addre ss whether the district court proper ly g rante d summary judgme nt in favor of PRS beca use Vande r Boe g h failed to establish a pri m a fac ie case . As discussed above, Vande r Boe g h has failed to cre ate a g enuine issue of materia l fac t whether the bid lang uag e was materia lly adver se and, c onsequently , cannot suc cee d in a re taliation claim based on this eve nt. Vande r Boe g h also cannot establish a prima fac ie case ag ainst PRS based on Kelly ’s decision
to hire Corpstein. Assuming t hat “cat’s paw” theory is even available in this context, insufficient evidenc e ex ists that PRS officia ls had a n y i n fl u en ce over Kelly ’s decision to hire Corpstein. The involvement of manag ement was far too tenuous to cre ate a question of fac t for a jury

. Acc ording ly , the district court prope rly g rante d summary

judgme nt in favor of

PRS

. V. Finally , we conclude that the district c ourt proper ly g rante d summary judgme nt in favor of BJC. At the outset, BJC clearly had knowledg e of Vander Boe g h’s protected activity when Kelly decide d not to hire Vande r Boe g h; a DOE hear ing office r had found sever al instances of reta liation y ear s ear lier. Assuming the availability of “cat’s paw” theory , howeve r, there is scant evidenc e in the re cord tha t BJC influence d that decision. Vande r Boe g h prese nts the following evidenc e of BJC’s alleg ed infl u ence : The CEO of WES KEM rec alls a BJC employ ee making a critica l rema rk about Vande r Boe g h, but he could not

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reme mber the person’ s identity

. Asked whether BJC’s manag ement worke d with PRS manag ement during the transition, the CEO replied, “it has t o h av e o cc u rred.” The CEO also said that it was “likely ” that some of B J C’s manag ement involved in the transition were those who had e x presse d d i s s at i s fa cti on with Vande r Boe g h. On Marc h 9, 2006, a BJC repr esenta tive sprea d a rumor that Vande r Boe g h’s secur ity clea ranc e had been revoke d. BJC failed to id en t i fy Va nder Boe g h as a “g randf ather ed employ ee” for pur poses of c ontinued employ ment. This e vidence is larg ely

specula tive and insuffic ient to cre ate a g enuine dispute. Evidence that a critica l rema

rk was made does not show that it influence d the hiring decision. Testimony that
an event “has to have occur red” or was “likely ” is mere conjec ture. Eve n assuming that BJC was involved in the overa ll transition process, this is not evidence that BJC i nfluenc ed the se lection of employ ees. Moreove r, BJC would have had no mot i v e t o i n v olve itself in hiring decisions of another company ’s employ ees. Wit h reg ard to the alleg ed rumor, beca use it was sprea d afte r Kelly hired C o rpstein, it could not have influence d the decision. Finally , as explained above, Vande r Bo egh was not a “gr andfa there d employ ee” beca

use t he landfill manag er positi on was denoted as “mana g eria l.” Acc ording ly , the district court proper ly g rante d summary judgme nt in favor of BJC.

VI

. For these reasons, we reve rse the summary judgme nt gr anted in fa

vor of Ene rg y Soluti ons, aff irm the summary judgme nt g rante d in favor of PRS and BJC, and rema nd for further proce eding s consistent with this opi nion.

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ZA TKOF F , District J udg e, dissenting in part. I ag ree with the majority in reg ard to aff irming summary judgme nt for PRS and BJC. Wit h respe ct to Energ y Soluti ons, howeve r, I disag ree that Vande r Boeg h has create d a genuine issue of fac t r eg arding Kelly ’s knowledg e of the protec ted ac tivity . I also question whether Vande r Boe g h has statutory standing to bring h i s ERA claims ag ainst Energ y Soluti ons in the first place

. Acc ording ly , I respe ctfully dissent. I. K E L L Y ’ S K

N O W L E D G E “The decisionmake r’s knowledg e of the protec ted acti v ity is an essential element of the prima fac ie case of unlawful reta liation.” Frazier v. USF Holland, Inc. , 250 F.App’ x 142, 148 (6th Cir. 2007) (citing Mulhall v. Ashcroft , 287 F.3d 543, 551 (6th Cir. 2002)). Whil e in most case s “the plaintiff will be able t o p roduce direc t evidenc e that the decision making officia ls knew of the plaintiff’s p ro t ected activities,” the lack of such direc t evidenc e is not nece ssarily fata l if circ umstantial evidence can e stablish this element of the claim. Mulhall , 287 F.3d 552–53. Kelly testified that he was not a war e of Vande r Boe g h’s protec ted activities befor e making the decision to hire Corpstein, and that he did not become awa re of the protec ted activities until midto-late Marc h or ear ly April, 2006. Although this denial may be rebutted with counter vai l ing evidenc e, see Lipper v. Cmty. Bank, Inc. , 438 F.3d 1275, 1282 (11th Cir. 2006), such evidenc e must amount to more than just “conspira torial theories

. . . or ‘flig hts of fa n cy , s p ec ulations, hunches, intuiti ons, or rumors.’” Mulhall , 287 F.3d 552 ( quoting Visser v. Pac ker Eng’ g Assocs., Inc

. , 924 F.2d 655, 659 (7th Cir. 1991) (en banc) ). See a l s o Me n n e v. C elotex Corp ., 861 F.2d 1453, 1463 (10th Cir. 1988) (finding that the infere nce draw n from the evidenc e “must not be based on

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gh v. Ene rgySolutions, Inc., et al. conjec ture, specula tion, or mere possibili ty ”); Lisa-Jet, Inc. v. Duncan Aviation, Inc. , 569 F.2d 1044 (8th Cir. 1978) (same) ; Lohrmann v. Pittsburgh Corning Corp. , 782 F.2d 1156, 1163 (4th Cir. 1986) (“pe rmissible infere nces must

. . . be within the rang e of rea sonable probability ”) (citation omitted). The evidenc e offe red by Vande r Boe g h and cited by the majority is: (1) that Vande r Boe g h filed complaints with DOE on Fe bruar y 21, 2006, and Fe bruar

y 24, 2006, and that both complaints

wer e viewable on DOE’s website; (2) that Kelly was respo n s i b le for overse eing the transition of landfill opera tions and manag ing “due diligenc e” during the transition period; (3) that on Fe bruar y 13, 2006, Vande r Boe g h spoke with Corpstein and commented about the leac hate storag e problems at the PGDP; and (4) that despite hi s due dil ige nce responsibility , Kelly decide d to hire Corpstein without interviewing Vande r Boe g h, who had over a deca de of expe ri ence as a cer tified landfill

m an age r. Although this evidenc e may cre ate a fac tual issue as to whether Kelly could have discovere d the protec ted activity befor e deciding to hire Corpstein, I do not find that it cr ea t es a fac tual issue as to whether Kelly did have such knowledg e. Rather, inferr ing Kelly ’s knowledg e of the protec ted activity require s “conspiratorial theory ,” conjec ture and specula tion. E.g. , Mulhall , 287 F.3d a t 552; Menne , 861 F.2d a t 1463. First, there is no evidenc e from which to infer that Kelly must have ch ec k ed the DOE website befor e deciding to hire Corpstein. Vande r Boe g h made his first complaint on Fe bruar y 21, 2006. Acc ording to Kelly ’s testimony , he was a very busy man during the transition, often working 15 hours a day

. He also testified that only 10–20% of his time was devoted t o L an d fi l l m atters. Even assuming t hat Kelly offe red Corpstein the j ob on Marc h 9, 2006, there is no evidenc e nor is it infera ble that afte r Fe bruar

y 21—but befor e Marc h 9—Kelly chec ked the DOE website, espec ially

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g iven his busy schedule and numerous responsibilities at the time. I ndeed, the evidenc e is entirely consistent with K elly

chec king the DOE’s w ebsite after having decide d to hire Corpstein (e .g ., on Marc h 10). Second, the evidenc e that Corpstein had knowledg e of the protec t ed activity is tenuous. Vande r Boe g h claims that at the Fe bruar y 13, 2006, meeting , h e asked Corpstein about Energ y Soluti ons’ free l iquid problems and “commente d about the leac hate storag e issues at the l an d fi l l

. ” (R

. 4 8 -2 at 18–19; Pg I D at 801–02.) On its fac e, this comment does not allude to a particula r protec ted ac tivity

by Vande r B oeg h, but instead appea rs t o have been a vague refer ence to the conditions a t the landfill. Even assuming that Corpstein was prese nt a t the meeting

—which

rema ins in question—and that Vande r Boe g h made the comment, it does not nece ssarily follow that Corpstein translated the comment into knowledg e of V ander Boe g h’s protec ted ac tivity

. Third, the fac t that Kelly hired Corpstein without having interviewe d Vande r Boe g h neither indicates foul play nor g ives rise to an infere nce that Kelly had knowledg e of the protec ted activity , espec ially when c onsidering the context in which Kelly made the de cision. Kelly testified that: Af t er working with Mr. Corpstein on a daily basis and becoming familiar with his experience and cre dentials, which included landfill manageme nt and waste disposal , and based on my favorable impressions of Mr. C orpstein’s skills a n d w o r k ethic , I made the decision t o h i re M r. C o rpstein

. . . as the L andfill Manag er . . . . I consulted wi t h m y m an age r at t he ti me[,]

. . . Pat Hopper , on this decision prior to finalizing the action. Mr. Hopper endorse d my decision an d ag ree d that Mr. Corpstein was we ll qualified for the position of L andfill Manag er. (R. 40-4 at 13–15; Pg I D at 343–45) (emph as i s ad d ed ). Kelly ’s high reg ard for Corpstein is also

corr oborate d by Hopper ’s testimony

. The testimony confirme d that Kelly communicated to Hopper the decision to hire Corpstein and that Hopper endorse d t h e d ec i s i o n on acc ount of Corpstein’s

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cre dentials and experience

. Hopper also noted that there was nothing unusual about Kelly , the most senior Dura tek employ ee, hiring Corpstein, another l o n gtime Dura tek employ ee who contributed in the transition. I n fac t, Hopper noted that whene ver Energ y Soluti ons transitioned into a new site and repla ced an exis ting contra ctor, it broug ht its own manag ement team t o repla ce the previous
contra ctor’s manag ers, and that this is a common prac tice in the industry

. The testimony of Hopper and Ke lly reg arding Corpstein’s hiring was not re butted by Plaintiff. For his part, Vande r Boe g h finds it peculiar that he did not rec eive an interview despite having ten y ear s of experience and—unlike Corpstein—the proper licensure for the position. This is insignifica

nt. Corpstein was by no means a novice emp l oy ee. He had worke d for Dura tek/Energ y Soluti ons for more t h an 20 y ear s and was a Senior Project Manag er befor e transfe rring to the L andfill to aid in the transition. Also, as attested to by Ke lly and Hopper , Corpstein further proved his worth during the long h o u rs he spent working closely with and repor ting to Kelly during the transition. As to the licensure , it appea rs to have been littl e more than

a paper work formality having no bear ing on C o rp s t ein’s ability to perf orm the duties of L andfill Manage r. I n fa ct, the licensure appea rs to have been so insignifica nt that the KDWM allowed Corpstein to perf

orm all the dutie s of L andfill Manag er without him having participa ted in the training class or rec eived his cer tification—albeit while having the title of “interim” L andfill Manag er until such time as he could complete the class. The class, howeve r, took all of three day s and, exactly

one we ek af

ter c ompleting it, Corpstein rec eived his full ce rtification. I n sum, viewing the circ umstantial evidenc e as a whole does not g iv e ri s e t o a reasonable infere nce that Kelly had knowledg e of the protec ted activity

. Vande r Boe g h prese nted no evidenc e

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that Kelly chec ked the DO E website a nd lear ned of the complaints, or that Kelly did so during the approximately 2 wee k window betwee n the first complaint and the hiring of Corpstein. Rather, the evidenc e is such that Kelly had the opportunity to lear n of the protec ted activity —if he had chec ked the DOE web s i t e b etwee n Fe bruar y 21 and Marc h 9. Nor has Vande r Boe g h produce d sufficie nt evidenc e that Corpstein had knowledg e of the protec ted acti v ity and share d it with Kelly , or that Kelly declined to inter

view Va nder Boeg h based on suc h knowledg e. Ag ain, there is no evidence that Kelly lear

ned of the protec ted activity , and there is counter vailing evidenc e showing that Kelly declined to interview Vande r Boeg h for permissible rea sons. Finally , knowledg e may not be imputed to Kelly based on Vande r Boe g h’s claim that Corpstein knew of the protec ted activity and had influence over Kelly ’s decision-making

. This “cat’s paw” th eo ry applies in the context of discrimination case s to impute discriminatory animus from an employ ee to a decision-make r, not in reta liation cases t o i m p u t e t he knowledg e a protec ted activity from an employ ee to a decisionmak er . S ee Arendale v. City of Mem phis , 519 F.3d 587 (6th Cir. 2008) (imputing discriminatory bias); Roberts v. Principi , 283 F. App’x 325, 333 (6th Cir. 2 0 0 8 ) (“ I n the employ ment discrimination context, ‘ca t’s paw’ ref ers to a situation in which a biased su b o rd i n ate, who lacks decisionmaking power , uses the formal decision-make r as a dupe in a delibera te sche me to trig g er

a discriminatory employ

ment action.”) (citations omitted). Acc ording ly , I would aff irm the district court’s summar

y judgme nt in favor of

Energ y Soluti ons. II. V A N D E R B O E G H ’ S E M P L O Y M E N T S T A T U S Additionally , I am troub l ed b y t he fac t that Vande r Boe g h’s only connec tion to Energ y Soluti ons was his employ ment with the company that E n e r g y Solutions supplanted. Although

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gh v. Ene rgySolutions, Inc., et al. Energ y Soluti ons only raises this issue in passing , it leads me to question whether Vande r Boe g h has statutory standing to bring his ERA claims. Under the ERA, “[n] o employe r may discharg e any employe e or otherwise d i s criminate ag ainst any em

p loyee with respe ct to his compensa tion, terms, conditions, or privileg es of employ ment beca

use the employe e ” eng ag ed in an activity protec ted by the statute. McNeill v. U.S. Dep’ t of Labor , 243 F. App’ x 93, 97 (6th Cir. 2007) (internal quotation marks omi tted) (citing 42 U.S.C. § 5851(a) (1)) (empha sis added)

. I t is “a reme dial statute intended to shield employe es from adver se action taken by their employe rs in response to employe es ’ complaints of safe ty violations.” Conn ecticut Light & Power Co. v. Sec’ y of U.S. Dep’ t of Labor , 85 F.3d 89, 93 (2d Cir. 1996) (empha sis added). See also Hasan v . U.S. Dep’ t of Labor , 298 F.3d 914, 916 ( 10th Cir. 2002). Although the ERA lists examples of entities that qualify as “employ ers,” the statute does not define the term “employ ee.” See 42 U.S.C. § 5851. Nor do the rele vant reg ulations define the term. See 29 C.F.R. § 24.1–24.5. Where Cong ress uses the term “employ ee” without pr ecise ly defining it, courts should pr esume that Congr ess had in mind “the conventional master- serva nt rela tionship

as understood by the common-law ag ency doctrine.” Nationw ide Mut. Ins. Co. v. Darden , 503 U.S. 318, 322–23 (1992) (quoting Community for Creative Non–Violence v. Reid , 490 U.S. 730, 739–40 (1989) (holding that “I

n deter mining whether a hired party is an employ ee under the g ener al

common law of ag ency , we consider the hiring party ’s rig ht to control the manner and means by which the product is acc omplished[ ,]” and listi ng sever al fac tors rele vant to this inquiry). Under Darden , a complainant bring ing an ERA reta liation c laim must be a “hire d party .” Demsk i v. U.S.

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gh v. Ene rgySolutions, Inc., et al. Dep’ t of Labor , 419 F.3d 488, 492 (6th Cir. 2005) (citations omitted). See also O’Connor v. Davis, 126 F.3d 112, 115 ( 2d Cir. 1997). I n this case , the parties ag ree that Vande r Boe g h was never hired by Energy S o l u tions. I n fac t, Vande r Boe g h broug ht s u i t because he was never hired. Nor was Vande r Boe g h ever employ ed, manag ed, or supervised by Energ y Soluti ons , and no contractua l relationship otherwise exis ted betwee n them. Rather, Vande r Boe g h’s asser ted rig ht to the position is based on his c laim that PRS ’s contra ct containe d a provision g ranting “g randf ather ed employ ees” a hiring pref ere nce for vac an ci es . But, as the majority points out, Vande r Boe g h prese nts no evidenc e that he was a g randf ather ed employ ee under the new contra ct. Only “non-ma nag eria l” employ ees are considere d “g randf ather ed” under the contra ct, and the landfill manag er position is specific al ly denoted as “mana g eria l.” Additionally , it is undisputed that Vande r Boe g h rec eived n o s al ar y o r wag es from Energy Soluti ons. “Where no financ ial benef it is obtained by the purported employ ee from the employ er, no ‘plausible’ employ ment rela tionship of any sort can be said to exis t beca use althoug h ‘compe nsation by the putative employ er to the putative employ ee in exchang e for his service s is not

a sufficie nt condition,

. . . it is an essential condition to t h e ex i stence of an employ er- employ ee rela tionship.’” O’Connor , 126 F.3d at 115–16 (citing Grave s v. W omen’ s Prof’l Rodeo Assoc ., 907 F.2d 71, 74 ( 8th Cir. 1990)). There fore , I believe that Energ y Soluti ons never “hire d” Vande r Boe g h in “any sense that we understand the term.” Demsk i , 419 F.3d a t 492 (finding that the complainant, who was t he owne r

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and sole share holder of company that provided contra ct labor at DOE plant, was not an “employ ee” for pur poses of ERA). III. C O N C L U S I O N Be cause I find that there is insufficient evidenc e from which a jury could rea sonably find that Kelly had knowledg e of Vande r Boe g h’s protec ted activity and beca use I do not believe that Vande r Boe g h qualifies as a

n employ ee f

or purpose s of ERA, I

respe ctfully

dissent.

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