Does Whistleblower Have Case Against Enbridge?
MARSHALL, Mich. (May 12, 2014)– It’s been nearly four years since the massive Enbridge oil spill in Marshall occurred, polluting waters in Calhoun and Kalamazoo counties.
In July 2010, a rupture in pipeline 6-B allowed more than 800,000 gallons of oil to escape into the environment including portions of Talmadge Creek and the Kalamazoo River.
While the majority of that mess appears to have cleaned up, there’s now a civil lawsuit that’s moving forward involving “whistleblower” John Bolenbaugh.
The former SET Environmental cleanup worker claims Enbridge was responsible for his termination from SET and he’s also stated that he was harassed by Enbridge workers.
He said this occurred after Enbridge instructed contractors to cover-up spilled oil with materials like grass rather than clean it up.
It’s an accusation that Enbridge has always denied.
After Bolenbaugh started making the accusations and documenting cleanup efforts, he said he was fired.
He won a wrongful termination settlement against contractor, SET environmental.
Now, he’s going after Enbridge for what he says is the company’s role in his termination of employment.
He said information that came out in the previous lawsuit is providing evidence in this new case.
During a deposition in the case against SET Environmental, the Plaintiff’s brief states that Shaun Dekker “testified that on-site supervisor, Dave Murphy, told him on October 15, 2010, that Enbridge did not want Bolenbaugh on site anymore.” See court document below:
Meanwhile, Bolenbaugh said some of his claims of harassment include death threats that were left on his car and through electronic messaging, alleged assaults, an incident at Firekeeper’s Casino in Battle Creek, property damage including slashed tires and an arrest for trespassing.
He was never convicted of trespassing because he said representatives for Enbridge never appeared for court.
“They did not show up to court,” said Bolenbaugh. “We didn`t even talk to a judge. The prosecutor actually dropped it.”
He said former security officer Garrett Murray, who worked for DK security, can back up his claims.
Murray agreed to an interview and showed us a flier with Bolenbaugh’s picture and stats on it, even his license plate number, saying, “all personnel be alert”.
He said it was posted on the wall and he believe it encouraged people to behave in a certain manner toward Bolenbaugh.
“I didn`t think it was right they had all this information,” said Murray.
He said when Bolenbaugh was on public property, workers would approach him, he described one of those alleged instances.
“All of the workers immediately dropped what they were doing, and immediately started heading towards towards him,” said Murray. “He was on public property. Legally, we had no right to say he couldn’t be there, but all these workers were coming after him.”
When asked if it was the company or rouge individuals, Murray said, “I believe it had to stem from the company.”
“If John Bolenbaugh wasn`t such a threat to the situation, why did they have the main head honcho of Enbridge come from Canada down after this was exposed? They interrogated everybody. They put me in a little room and interrogated everybody and asked me questions about John and ‘What was my feelings about John?’.”
We asked a Cooley Law professor to help us examine what might happen as both parties move forward in the case.
So far, the suit includes the counts of interference of contract and intentional infliction of emotional distress.
Cooley law professor Chris Hastings says, although you can call this a whistleblower lawsuit, technically, it’s a common law case.
“This case isn’t brought under a whistleblower statute,” said Chris Hastings, Professor of Law, Cooley Law School. “It’s brought under a number of common law theories and it’s also not brought against an employer it’s brought against a number of defendants who are alleged to have acted with an employer.”
Should the case go to trial, Hastings said all the allegations may not make it before a jury.
“The judge hasn’t made a ruling that any of these claims have merit,” said Hastings. “The judge will decide, piece by piece, whether that’s admissible and which isn’t.”
“It could be that there was no record that any of those folks were Enbridge employees,” he said. “In which case that video would be irrelevant.”
Bolenbaugh does say in several instances, the threats couldn’t be connected to an identifiable individual.
That was especially true of the instances in the cases in which his car tires were slashed and threatening messages were written on his car.
Bolenbaugh did make phone contact with a man who allegedly sent him hundreds of threats through electronic messaging.
The messages read, “‘Your trying to get paid u ( )”
“U wont live to spend it u baby.”
That man appeared to apologize on the phone to Bolenbaugh, which he captured and posted online.
“I wanted to apologize for the mis-truth period,” the man said.
We called the phone number that had been used to place those messages, however, the person who called back stated that the phone number had been recently acquired and they didn’t have knowledge of the incident.
Enbridge couldn’t say anything about the pending lawsuit.
They issued a statement saying,”Enbridge does not comment on pending litigation. We look forward to vigorously defending our case. We will have no further comment until the case is resolved.” — Lorraine Little, Senior Manager of U.S. Public Affairs Liquids Operations & Projects for Enbridge
We did talk to spokesperson Jason Manshum generally about some of Bolenbaugh’s claims months before the suit was filed.
At that time, he stated that the company did not get Bolenbaugh fired and Enbridge employees were not responsible for harassing him.
“I can say that Enbridge has never fired Bolenbaugh and we have never asked for him to be terminated from the cleanup,” he said during a previous interview.
When asked if that would have to do with the subcontracting company that oversaw him, he said, “Correct”.
“We`ve never told any contractor to terminate one of its employees,” said Manshum.
When asked if Enbridge had ever harassed Bolenbaugh, Manshum said, “No. We have never harassed any person on any project in the United States or Canada, period.”
We also asked if anyone on the team talked to him in away that could have been construed as harassment or bullying.
Manshum said, “He would access our work-sites and trespass. We would ask him to leave. Many times he did not leave and that`s when law enforcement was called. It`s really a safety concern.”
“We can`t have individuals on the right-of way in a project where they put their own safety in danger and quite frankly our workers,” he said.
“Every time someone like that would step onto the site, we have to stop work and we have to shut everything down so they must move immediately,” said Manshum.
He also previously addressed claims that Bolenbaugh was arrested for trespassing in order to harass him.
“That was meant to protect his safety and our workers out there. Keep in mind, everything we`ve done in the Kalamazoo River is under a timeline by the federal government. Every time we have to stop for individuals who are illegally in the right-of-way, that hinders our likelihood of getting done in a timely fashion.”
Bolenbaugh has claimed that Enbridge didn’t show up in court for the trespassing case against him, proving it was harassment,
Again, during that previous interview, Manshum said, “Everyone is entitled to their opinion.”
Bolenbaugh and his attorney, Tom Warnike, feel they can win all or part of the lawsuit.
But, first a judge will determine what if anything a jury might consider.
“Your viewers have a luxury of watching a bunch of stuff, that a jury may never see depending on whether the information in those videos passes some very stringent tests for reliability and authenticity,” said Hastings.
Both parties have until September, 1, to sort out the evidence for discovery.
Bolenbaugh is represented by the Geoffrey Fieger Lawfirm.