Alston & Bird client Consolidated Nuclear Security (CNS) prevailed in a suit brought by a former employee and purported whistleblower before the U.S. District Court for the Northern District of Texas.
District Judge Matthew Kacsmaryk granted CNS’s summary judgment motion on plaintiff Stephen “Cobey” Monden’s retaliation claim brought under the National Defense Authorization Act. Monden worked at the Pantex Plant in Amarillo, Texas, a facility that assembles and disassembles nuclear weapons. He was a first-line supervisor until he was terminated for misconduct related to timekeeping. As the court noted in its opinion: Monden “admitted … that he let [his direct reports] record more time than they worked and advised [them] on how to ‘cover’ when noticed by senior management.”
CNS self-reported timekeeping anomalies to the government in February 2019, leading federal agents to open an investigation based on CNS’s report. Agents spoke with Monden, the line workers who reported to him, and others. CNS also conducted its own internal disciplinary investigation, where Monden admitted that he had engaged in a collective effort with his direct reports to leave early but to charge time for a full shift. Monden further admitted that he colluded with the employees he supervised to hide this practice from CNS senior management.
Accordingly, CNS fired Monden for timekeeping fraud in October 2019. Monden’s lawsuit claimed that he was a “whistleblower” and that he was fired in retaliation for talking with federal agents. In dismissing the suit, Judge Kacsmaryk held that Monden could not “avoid the consequences of his fraud by wrapping himself in a whistleblower’s cloak.” Judge Kacsmaryk further held that there was strong evidence that CNS historically has terminated employees for timekeeping fraud.
This decision comes after Monden’s prior counsel was disqualified when the court found a conflict with his representation of other current and former employees, some of whom accused Monden of fraud. In his November 4, 2022, disqualification order, Judge Kacsmaryk found that some of these employees and Monden were “potential adverse witnesses to each other” and so one firm representing all of them was not proper.