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Miller v. Institute For Defense Analyses

United States District Court, D. Colorado

February 26, 2019

DREW MILLER, Plaintiff,
v.
INSTITUTE FOR DEFENSE ANALYSES, a Delaware Non-Profit Corporation, Defendant.

          MEMORANDUM OPINION AND ORDER

          Nina Y. Wang Magistrate Judge

         This matter comes before the court on Defendant Institute for Defense Analyses' (“Defendant” or “IDA”) Motion for Summary Judgment (or “Motion”) [#43], [1] filed October 5, 2018. The Motion is before the undersigned pursuant to 28 U.S.C. § 636(c), D.C.COLO.LCivR 72.2, Fed.R.Civ.P. 73, and the Order of Reference for all purposes [#14]. The court concludes that oral argument will not materially assist in the resolution of this matter. Having carefully reviewed the Motion and associated briefing, the applicable case law, and the entire record, the court GRANTS the Motion for Summary Judgment for the reasons stated herein.

         PROCEDURAL BACKGROUND

         Plaintiff Drew Miller (“Plaintiff” or “Dr. Miller”) initiated this action on October 6, 2017, asserting federal claims against IDA for: False Claims Act retaliation (“Claim 1”), Defense Contractor Whistleblower Protection Act retaliation (“Claim 2”), and non-payment of earned wages under the Fair Labor Standards Act (“FLSA”) (“Claim 3”); as well as state law claims for: wrongful discharge in violation of public policy (“Claim 4”), termination for lawful off-duty activity (“Claim 5”), and unlawful prevention of an employee's political participation (“Claim 6”). See generally [#1]. The court granted Defendant's Partial Motion to Dismiss and dismissed Claim 3, and Plaintiff did not seek leave to further amend Claim 3 despite an opportunity to do so. See [#34; #35].

         Defendant now moves for summary judgment on Plaintiff's remaining claims. See [#43]. Plaintiff filed his Response in opposition to the Motion, but agrees to dismiss Claim 4 as preempted by the False Claims Act, see [#50 at 1], [2] and IDA has since filed its Reply, see [#61].[3] The Motion is now ripe for disposition, and I consider the Parties' arguments below.

         LEGAL STANDARD

         Pursuant to Rule 56, the court may 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). “A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and quotation marks omitted). It is the movant's burden to demonstrate that no genuine dispute of material fact exists for trial, whereas the nonmovant must set forth specific facts establishing a genuine issue for trial. See Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). And though the court will “view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant[, ]” Zia Shadows, L.L.C. v. City of Las Cruces, 829 F.3d 1232, 1236 (10th Cir. 2016), the nonmovant must point to competent summary judgment evidence, see Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004), and may not rely on “mere reargument of his case or a denial of an opponent's allegation[, ]” see 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed. 1998).

         In applying the applicable legal standard, the court is mindful that Dr. Miller proceeds pro se and therefore construes his pleadings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the court does not act as his advocate, and applies the same procedural rules and substantive law to Plaintiff as to a represented party. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008).

         ANALYSIS

         I. Material Facts

         The court draws the following material facts from the record before it. These material facts are undisputed unless otherwise noted.

         1. Dr. Miller is a retired Colonel of the United States Air Force Reserve, having served for 30 years in the military; he received a master's degree and Ph.D. in public policy; and he held several civilian jobs, including as a County Commissioner, adjunct professor, and University of Nebraska Regent, prior to joining IDA. See [#43-6 at 13:1-24:2; #52 at Ex. 1, ¶¶ 2-10, 15-16, 18].

         2. “IDA is a non-profit corporation organized under a government mandate and operating in the public interest, ” and it “manages three federally funded research and development centers that provide objective analyses of national security issues and related national challenges, particularly those requiring exceptional scientific and technical expertise.” [#43-1 at ¶ 3].

         3. Dr. Miller began working for IDA as a consultant in or around 2003, before becoming an adjunct employee (working on a part-time, as needed, and hourly basis, with no benefits) in or around 2006. See [#43-1 at ¶ 4; #43-6 at 22:24-23:6, 24:22-25, 41:1-9, 50:1-51:15].

         4. In or around 2012, IDA hired Dr. Miller as a full-time employee. See [#43-1 at ¶ 5; #43-6 at 51:16-23, 52:19-54:10; #52 at Ex. 1, ¶ 11].

         5. Plaintiff began specializing in “chem-bio” research, an area of interest to Dr. Miller since his time with the Air Force Academy, which involved the research and analysis of biological and chemical threats, including “black swan” threats (i.e., those people ignore because they are extremely rare). See [#43-1 at ¶ 5; #43-6 at 56:14-60:5, 63:11-65:12; #52 at Ex. 1, ¶¶ 23-25].

         6. Dr. Miller's chem-bio work for IDA comported with his interest in the “prepper” community-those who believe in preparing for an economic collapse following a pandemic or natural disaster. See [#43-6 at 64:25-65:2, 65:14-68:16].

         7. In or around May 2012, IDA assigned Dr. Miller to the Operational Risk Assessment Project (“ORAP”), “a subtask within the much larger ‘3250' task, ” because of Dr. Miller's military service and chem-bio interest. [#43-1 at ¶ 5; #43-6 at 56:24-57:10, 103:19-24, 104:4-18, 180:24-181:1].

         8. Dr. Jeff Grotte (“Dr. Grotte”) supervised IDA's chem-bio research, including the ORAP, the 3250 task, and 30 researchers, while Dr. Miller “was responsible for and led the day- to-day execution of the ORAP.” [#43-1 at ¶ 5]; see also [#43-6 at 56:24-57:10, 103:19-24, 115:5-17, 116:8-16; #52 at Ex. 1, ¶¶ 23-24].

         9. Jerry Glasow, a former IDA employee who worked for Dr. Grotte, sponsored the ORAP through the Defense Threat Reduction Agency-an agency within the Department of Defense (“DoD”), see [#43-6 at 110:19-111:9]; Plaintiff believed this relationship perpetuated IDA's alleged misuse of government funds and/or fraud on the United States government, see [id. at 155:8-17, 165:16-19, 182:2-8].

         10. About 2013, Dr. Miller created and began marketing memberships to Fortitude Ranch, a survival community with properties in West Virginia and Colorado. See [id. at 68:1-9, 78:18-80:22, 221:1-223:18; #52 at Ex. 1, ¶ 26].

         11. In January 2013, Division Director Michael Dominguez (“Mr. Dominguez”) denied as violating IDA policy Dr. Miller's request to write a letter to the editor of the Wall Street Journal that noted Plaintiff's work with IDA and supported the nomination of then-Senator Chuck Hagel as Secretary of Defense. See [#43-1 at ¶ 22; #43-18; #52 at Ex. 7, IDA 000599].

         12. About September 2013, Dr. Grotte assigned six new analysts to the ORAP from another project-analysts Dr. Miller believed to be unqualified for the ORAP and whom Dr. Miller attributes the ORAP's shortcomings to. See [#43-1 at ¶ 7; #43-6 at 131:14-132:23, 134:4-136:24, 141:19-144:6, 180:9-182:8, 182:9-17].

         13. On several occasions, Plaintiff complained to Dr. Gotte and others at IDA about the new analysts and the purported ill-effects caused by these analysts to the ORAP; Plaintiff even requested that IDA remove him from the ORAP. See, e.g., [#43-1 at ¶ 8; #43-6 at 114:17-116:7, 137:4-22, 138:1-21, 139:7-140:14, 141:7-142:1, 182:18-184:25, 217:9-219:4; #43-8 at 1-3; #52 at Ex. 1, ¶ 29; #52 at Ex. 2, DM0034-36, DM0078; #52 at Ex. 3, IDA008422; #52 at Ex. 5, IDA015324].

         14. Indeed, other IDA employees believed the ORAP to be disorganized and unproductive, and opined that Dr. Miller's inconsistencies and lack of direction to the six new analysts was the problem. See [#52 at Ex. 3, IDA003466]; see also [#43-6 at 153:12-154:7].

         15. By November 2013, despite the initial success of the ORAP, see, e.g., [#43-6 at 111:22-114:10; #52 at Ex. 3, IDA003474-75, IDA007492, IDA007556, IDA013809], Dr. Grotte issued a cease work order on the ORAP without informing Dr. Miller of the reasons for the cease work order, see [#43-6 at 154:8-155:5, 155:20-156:1, 156:19-25; #52 at Ex. 3, IDA012492].

         16. Dr. Miller maintains that Dr. Grotte reassigned the six new analysts to new projects while Dr. Miller had to take leave because he did not have work; Plaintiff did not again work for Dr. Grotte. See [#43-8 at 2; #52 at Ex. 2, DM0035-37; #52 at Ex. 4, DM0084, DM0504; #52 at Ex. 5, IDA015324].

         17. Issues with the ORAP and Dr. Miller's day-to-day leadership were a focal point of his 2013 performance review, e.g., [#43-7 at 3], despite generally positive performance reviews from years prior, e.g., [#52 at Ex. 1, ¶ 13; #50 at Ex. 6, DM0041-53].

         18. In a memorandum dated April 9, 2014, Dr. Miller responded to his 2013 performance review and largely criticized Dr. Grotte's management of the ORAP and the 3250 task while also suggesting that Dr. Grotte's negative comments were retaliation for Dr. Miller's complaints about the six new analysts. See [#43-8; #52 at Ex. 2, DM0034-37]; see also [#43-6 at 165:9-168:22, 177:6-11, 178:12-25, 179:5-8, 180:1-18, 216:17-20].

         19. In an email dated April 24, 2014, Dr. Miller submitted for IDA's peer review process an article that he allegedly researched and prepared on his own time concerning a bioengineered viral pandemic-the article was unlike typical IDA articles and Plaintiff intended it for mass publication. See [#52 at Ex. 5, IDA015019]; see also [id. at Ex. 5, IDA015130 (describing the article as “unlike a normal IDA informal paper”)]; #43-1 at ¶ 10; #43-6 at 256:7-258:5, 259:23-260:15 (testifying to the differences between an article for mass publication and an IDA paper, explaining that the article needed “some element of drama” and that it need not be as scientifically accurate)].

         20. Dr. Miller's bioengineered viral pandemic article required several edits prior to publication and received strong criticism from IDA's peer reviewers, including that the fear-based tone needed reworking to an analytical approach, see [#43-6 at 259:15-25], that it was “emotional and lacked objectivity, ” see [#43-1 at ¶ 10], and that the “logic [was] faulty” given scientifically questionable statements, see [#43-2 at 1-2]. See also [#52 at Ex. 5, DM0056, IDA015325-26].

         21. IDA eventually published the bioengineered viral pandemic article, though Dr. Miller withdrew it from mass publication consideration. See [#43-4 at 2; #43-6 at 261:2-9, 263:4-9; #52 at Ex. 4, DM0084; #52 at Ex. 5, DM0058-77]

         22. Sometime in late 2014, Dr. Miller approached IDA about giving a presentation at a conference on the psychological and societal effects of chemical, biological, radiological, and nuclear events. See [#43-1 at ¶ 11; #43-6 at 263:10-20; #52 at Ex. 5, IDA015326].

         23. Per IDA's requirement, Dr. Miller secured the National Guard Bureau to sponsor the presentation, but rather than give a presentation Plaintiff instead drafted a report for the National Guard Bureau (the “NGB paper”) that focused on how people would react to a nuclear weapon detonation or chem-bio attack. See [#43 at ¶ 11-12; #43-6 at 263:21-267:17, 290:2-12; #52 at Ex. 5, DM0079, DM0083, DM0085-86].

         24. Dr. Miller submitted the NGB paper for IDA's peer review process; it received grave condemnation, e.g., [#43-10 at 1-6; #43-4; #52 at Ex. 5, IDA000548], which Dr. Miller believes was retaliation for complaining about the six new analysts assigned to the ORAP, see [#43-6 at 276:2-17, 277:15-17; #52 at Ex. 5, IDA015326].

         25. About April 28, 2015, Mr. Dominguez informed Plaintiff of a potential conflict of interest with Fortitude Ranch and Plaintiff's chem-bio work for IDA, including the NGB paper and presentation, and directed Plaintiff to cancel the presentation and “not speak or write publically [sic] about any topic that relates to ‘chem-bio' pandemics or societal collapse.” [#43-1 at ¶¶ 14-17]; see also [#43-3; #43-6 at 277:19-278:17; #52 at Ex. 5, DM0088, IDA015326].

         26. While Plaintiff did not agree as to the existence of a potential conflict of interest, he agreed to “follow [Mr. Dominguez's] guidance not to write or speak on bioengineering or collapse.” [#43-12 at 1].

         27. On April 29, 2015, in response to the NGB paper, Dr. Grotte levied scientific misconduct charges against Dr. Miller. See [#43-1 at ¶ 17; #43-4; #43-6 at 284:7-12].

         28. Beginning in June 2015, IDA conducted a Scientific Misconduct Investigation (the “investigation”) into Dr. Miller, see [#43-1 at ¶ 18; #43-6 at 284:7-285:11; #52 at Ex. 1, ¶ 32; #52 at Ex. 2, DM0100-13, DM0118-66], an investigation Dr. Miller vehemently disagreed with and believed to be additional whistleblower retaliation, and which caused damage to Dr. Miller's reputation as well as stress and anxiety given the prospects of severe ramifications if found guilty, see [#43-6 ...


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