United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang Magistrate Judge
matter comes before the court on Defendant Institute for
Defense Analyses' (“Defendant” or
“IDA”) Motion for Summary Judgment (or
“Motion”) [#43],  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.
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].
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],
IDA has since filed its Reply, see
[#61]. The Motion is now ripe for disposition,
and I consider the Parties' arguments below.
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).
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).
court draws the following material facts from the record
before it. These material facts are undisputed unless
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].
“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].
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].
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].
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,
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
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].
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, ¶¶
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,
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].
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].
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,
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.
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].
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,
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,
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].
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].
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
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,
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]
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].
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].
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].
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].
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].
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].
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