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Opela v. Apogee Wausau Group, Inc.

United States District Court, W.D. Wisconsin

May 8, 2018

MICHAEL P. OPELA, SR., Plaintiff,


          WILLIAM M. CONLEY, District Judge.

         In this lawsuit, plaintiff Michael P. Opela, Sr., asserts a claim for violation of the whistleblowing protections contained in the Consumer Product Safety Improvement Act (“CPSIA”), 15 U.S.C. § 2087, against his former employer Apogee Wausau Group, Inc., d/b/a Wausau Window and Wall Systems (“Wausau”). More specifically, Opela contends that Wausau terminated him because he complained about potentially defective manufacturing materials used in Wausau's products. Before the court is defendant's motion for summary judgment. (Dkt. #20.) Based on the parties' submissions, the court will deny that motion, finding sufficient evidence from which a reasonable jury could conclude both that (1) “consumer products” are at issue and (2) Opela's complaints were at least a contributing factor in Wausau's decision to terminate his employment. As to the burden-shifting prong of Opela's claim, the court further concludes that the evidence of Wausau's purported reason for terminating Opela's employment is not so one-sided as to warrant entry of judgment in defendant's favor.


         A. Background

         Defendant Wausau produces building components, including aluminum window and curtain-wall systems. Plaintiff Michael P. Opela was employed by Wausau to manage its Structural Engineering Department from December 30, 2013, to September 25, 2014, the date he was fired.

         Before his employment with Wausau, Opela worked for Forensic Building Science (“FBS”), from approximately January 2010 to May 2011, as the Director of Forensic Inspections. Opela was introduced to FBS through his own company, Opela Worx Structural Engineers, Inc., which he owned and had been operating since September 2004. According to Opela, the intent behind his employment by FBS was to facilitate his eventual purchase of the company, but that never came to fruition. During his deposition, Opela described his departure from FBS as “tenuous” and “adversarial.”[2]

         B. Opela's Hiring by Wausau

         In 2013, Wausau worked with a third-party company, Management Recruiters of St. Croix Valley, to identify and recruit viable candidates for its open “Structural Engineering Manager” position. Opela learned of the opening from Management Recruiters' Account Manager Aaron Keopple. After identifying Opela as a potential candidate, Management Recruiters worked with him during the application and recruitment process.

         At the direction of Keopple, Opela provided Management Recruiters a copy of his resume on August 6, 2013, which defendant maintains did not disclose his nine-month employment by FBS.[3] However, the parties dispute whether the copy Opela produced during discovery was the resume he actually submitted to Management Recruiters. (Def.'s Reply to Def.'s PFOFs (dkt. #43) ¶ 18 (discussing Hontos Decl., Ex. 1 (dkt. #26-1)).) In particular, Opela contends that he did, however, submit a resume to Management Recruiters listing his work at FBS, and that Management Recruiters provided him a copy of two resumes both identifying FBS as a previous employer. (Pl.'s Add'l PFOFs (dkt. #36) ¶¶ 10-11.)

         Even so, there is no dispute that the resume Management Recruiters transmitted to Wausau as part of the recruitment process did not include plaintiff's employment at FBS, which Opela explains was consistent with Keopple telling him that Wausau wanted a resume from Opela containing only experience relevant to the Structural Engineering Manager position. In reviewing his resume, Opela further acknowledges that he determined his position with FBS was not applicable to the Structural Engineering Manager position. As such, Opela effectively acknowledged that he participated in the decision to remove his then current employment with FBS from his resume, although Opela also maintains that he later disclosed his employment at FBS in completing an online questionnaire for Management Recruiters, specifically stating that he left that position because “the owner hired me on the intent of selling the business to me and I came to realize that he would never sell.” (Pl.'s Add'l PFOFs (dkt. #36) ¶ 17 (citing Opela Decl., Ex. 2 (dkt. #37-2)).)

         In September 2013, plaintiff participated in a series of telephone and in-person interviews with Wausau personnel. Defendant contends that Opela did not disclose his prior employment with FBS during these interviews. Opela disputes this, averring that he specifically disclosed his employment to Laura Johnson, Senior Human Resources Generalist, during his telephone interview with her on or about September 11, 2013. Opela avers that his employment with FBS came up when Johnson inquired about all of Opela's past employment, not just that relevant to the Wausau position. Opela further avers that Johnson inquired about whether he had an existing non-compete agreement, to which he responded that his agreement with FBS had expired. Opela also represents that he informed Gene Pagel, Wausau's Vice President of Engineering, and Steve Fronek, its Vice President of Design Engineering, during his telephone interview with them in mid-September, and he again disclosed his employment to Pagel and Fronek, as well as to Peter Fuchs, John Rauman, Jeremy Harger and Jim Edyean, during on-site interviews in mid-September. (Pl.'s Resp. to Def.'s PFOFs (dkt. #25) ¶ 21 (citing Opela Decl. (dkt. #37) ¶¶ 12-15; Opela Depo. (dkt. #27) 218-19).)

         In further support of his having informed interviewers of previous FBS employment, Opela points to Fronek's interview notes, listing “Forensic” investigation experience. (Pl.'s Add'l PFOFs (dkt. #36) ¶ 31 (citing Egan Decl., Ex. 7 (dkt. #24-7)).) Furthermore, Rauman testified at his deposition that he recalled Opela discussing his past employment experience conducting forensic investigations during the interview. (Id. at ¶ 32 (citing Rauman Depo. (dkt. #39) 16-17).)4 On October 4, 2013, Pagel authorized Johnson to extend Opela an offer of employment, contingent on his execution of a non-compete agreement and successful background check. In response, Opela indicated that he wanted to incorporate an addendum to the Wausau non-compete, and on October 9, Keopple sent a one-page document to Johnson that Opela had requested be incorporated into the non-compete agreement. This one-page document had the following fax address heading:

(Image Omitted)

(Egan Decl., Ex. 3 (dkt. #24-3)[4] (noting “From: FBS” in apparent facsimile transmission) (emphasis added).) Defendant reasonably argues, however, that this heading would not place it on notice of Opela's former employment with FBS.

         On or about October 24, 2013, Wausau made a revised offer of employment, which Opela accepted. His first day of work was on or about December 30, 2013. Opela reported directly to Pagel.

         C. Opela Voices Concerns

         In early 2014, shortly after his hiring, Opela began reviewing the process by which Wausau tested or specified the strength of the materials it received for incorporation into its products. Opela discovered that Wausau had no processes in place to verify that it was receiving materials that complied with required specifications and OSHA regulations. This review or investigation continued over the course of that year. In August or September 2014, Rayna Bancyk, a Wausau engineer, also approached Opela with concerns regarding material strengths of certain alloys on a Wausau project. Opela was particularly concerned about this information, because the materials were used in products that had been installed in existing structures, including blast windows in government buildings that were required to meet applicable strength specifications and regulations.[5] Opela also investigated installation concerns relating to Wausau's window washer anchor bolts, as well as connection concerns related to security windows in psychiatric buildings.

         Opela's investigation culminated in a number of meetings in August and September 2014. Opela had a number of meetings with Wausau's engineering managers to discuss his concerns about Wausau's materials. Opela also met with Michael Weis, Wausau's Vice President of Continuous Improvement, on or about September 20, 2014, and “informed him of his discovery that Wausau had been using non-compliant materials in its products which resulted in a real and substantial risk of injury or death to the consumer and public.” (Pl.'s Add'l PFOFs (dkt. #36) ¶ 49 (citing Opela Decl. (dkt. #37) ¶ 19).) Opela further spoke with John Waldron, President of Wausau, in mid-September; and he spoke to Design Engineer Vice President Fronek around this time as well. Following the latter, Fronek specifically directed Opela not to contact any outside agencies regarding the information shared during their meeting. Finally, just before his termination, Opela had begun working with Brad Fehl, another Wausau employee, to find a third-party company to test the non-compliant materials.

         D. Opela's Termination

         Wausau's Engineering Vice President Pagel avers in his declaration that in September 2014, an Engineering Associate -- who he identified during his deposition as John Rauman -- informed him that “there was information on the internet regarding Plaintiff [Opela]'s prior employment with and termination from FBS, and that he had not passed the Minnesota Professional Engineering examination.” (Pagel Decl. (dkt. #25) ¶ 12.) However, plaintiff points out that during his deposition, Rauman testified that he did not bring this to Pagel's attention; instead, Rauman recalled that at the time of their discussion about Opela's prior employment, Pagel already knew ...

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