Bland-Collins v. Howard University , 19 F. Supp. 3d 252 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KAREN E. BLAND-COLLINS, PH.D. )
Plaintiff, §
v. § Civil Case No. 09-0394 (RJL)
H()WARD UNIVERSITY, g
Defendant. § §F § l D
> FEB t s 2014
MEMoRAN NIoN cgilr'i§' ll=l§i¢'ihg'i>i's'irl§ §§'"<':'§l',l‘,’,f§l§,
(February ?, 2014) [Dkt #82]
Plaintiff Karen E. Bland-Collins, Ph.D. ("Bland-Collins" or "plaintiff") filed this
action against Howard University ("Howard" or "defendant") on February 26, 2009,
alleging retaliation in violation of the Federal False Claims Act ("FCA"), 31 U.S.C. §§
3729 et seq, wrongful discharge, and national origin discrimination in violation of 42
U.S.C. § l98l. See Compl. [Dkt. #l]. Plaintiff subsequently amended her Complaint,
dropping her national origin discrimination claim and adding a claim for breach of
implied contract. See Corrected Second Am. Compl. ("Compl. II") [Dkt. #95]. Before
the Court is defendant’s Motion for Summary Judgment. See Mot. Summ. J. [Dkt. #82].
Upon consideration of the parties’ pleadings, the entire record in this case, and relevant
law, the Court DENIES defendant’s motion with respect to plaintiff’ s FCA whistleblower
claim and GRANTS defendant’s motion with respect to plaintiff s claims for wrongful
discharge and breach of implied contract.
BACKGROUND
In January 2006, Howard professor Loraine Fleming, Ph.D. ("Fleming"), hired
plaintiff, a professional statistician, to work for one yearl as a research associate on a
grant project awarded by the National Science Foundation ("NSF"). See Def.’s
Statement of Material Facts Not In Dispute ("Def.’s Facts") [Dkt. #82-1] 1111 l-3, 9; Pl.’s
Response to Def.’s Facts ("Pl.’s Facts") [Dkt. # 88-1] 1111 l-3, 9; Ex. 8 to Pl.’s Opp’n to
Def.’s Mot. Summ. J. (Declaration of Karen Bland-Collins, Ph.D.) ("Bland-Collins
Decl.") [Dkt. # 89-6] 11 2. The grant project, known as the Center for the Advancement of
Engineering Education ("CAEE"), was founded in 2002 with an NSF grant as a joint
effort by Howard, the University of Wisconsin ("UW"), Stanford University
("Stanford"), and the Colorado School of Mines ("Colorado"). See Def.’s Facts 11 3; Pl.’s
Facts 11 3. Fleming was the Principal Investigator ("PI") for Howard’s team and had
overall responsibility for Howard’s contribution to the CAEE study. See Def.’s Facts 11 7;
Pl.’s Facts 11 7.
Over the life of the grant-January l, 2003 through March 3 l, 20l0_NSF
provided over $12 million in funding to CAEE. See Ex. 3 to Pl.’s Opp’n to Def.’s Mot.
Summ. J. (NSF Award Abstract No. 0227558) ("Pl.’s Opp’n") [Dkt. #89-61. UW, as the
lead institution, disbursed these funds to the other grantee institutions, including
defendant. Def.’s Facts 11 5; Pl.’s Facts 11 5. As PI for the Howard team, Fleming was
responsible for ensuring compliance with NSF’S regulations pertaining to research
‘ Sometime prior to January 2007, plaintiff s employment was extended through
December 2007. Def.’s Facts 11 ll; Pl.’s; Facts 11 ll.
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misconduct.z
The CAEE study at issue in this case focused on engineering students’ career
paths. See Def.’s F acts 11 6; Pl.’s Facts 11 6. Data for the study was gathered from
structured interviews of undergraduate engineering students. See Bland-Collins Decl.
1111 9~10. Fleming hired plaintiff as a research associate "to analyze the data, to define the
data to be used in papers, and to develop the research paper." Def.’s Facts 1111 8, l4; Pl.’s
Facts 1111 8, l4. Plaintiff s position was funded with a supplemental grant from NSF for
performing enhanced quantitative analysis of the structured interview data. See Bland-
Collins Decl.1111 ll~l2.
Plaintiff alleges that she was mistreated and forced to resign after she complained
of research misconduct in connection with the CAEE study. Howard denies this, and
contends that plaintiff resigned voluntarily after failing to meet a deadline for a research
paper. For purposes of this opinion, l assume the following facts alleged by plaintiff to
be true. Plaintiffs role on the Howard CAEE team was to analyze data collected from
structured interviews that had previously been coded by other Howard team members.
See Bland-Collins Decl. 11 13. In early 2006, plaintiff began to notice and document
errors in the original coding. See Compl. II 1111 18, 20. Although it was not within
plaintiffs job description to code data or supervise the coding process, her concerns led
2 A 2004 audit by the NSF Office of Inspector General ("OIG") found that Howard had
not implemented sufficient intemal controls over the management of NSF grant funds.
See Ex. 9 to Pl.’s Opp’n at 115 O\ISF OIG, Case No. 06-1-008) [Dkt. #89-6]. In
response, Howard established a Research Compliance Office to ensure better stewardship
of NSF grant funds and committed to train and certify all PIs on NSF grant management
responsibilities. See z``a’. at 55-56.
her to further investigate the coding underlying the data she was hired to analyze. See ia’.
at 1111 15-20. In March 2006, for example, plaintiff created a document enumerating over
5,000 errors in the coded data collected from structured interviews in 2004. Bland-
Collins Decl. 11 20.
Plaintiff informed Fleming about the data integrity issues in person, by email, and
in several written reports. See Compl. II 1111 22, 24, 26-28, 33, 40; Bland-Collins Decl. 11
47; Exs. to Pl.’s Opp’n l7, 18, 19, 23, 27, 29, 35, 36, 43 [Dkts. ##89-7, 89-8, 89-9, 89-
l0]. On September l0, 2006, for example, plaintiff sent Fleming a report entitled "APS
Data Analysis 2006," stressing that the 2004, 2005, and 2006 datasets could not support
statistical analysis. Ex. 29 to Pl.’s Opp’n [Dkt. #89-8]. Plaintiff also made her concerns
known to Fleming by refusing to use the data to support a research paper Fleming
directed plaintiff to write. Bland-Collins Decl. 11 56. Instead, plaintiff obtained
Fleming’s permission to use data collected and coded by the Stanford CAEE team to
support her research paper. la’. at 11 57. ThiS paper was to be submitted to the American
Society for Engineering Education ("ASEE") after Fleming’s review.
In addition to complaining "numerous times [to Fleming] that Fleming’s activities
involved research misconduct and were wasting taxpayer resources," Pl.’s Facts 11 18,
plaintiff expressed concems to Janice McCain, Ph.D. ("McCain"), also on the Howard
team for the CAEE Study, Pl.’s Facts 11 20. Plaintiff additionally discussed the coding
errors with another individual on the Howard team who participated in the original
coding process. Bland-Collins Decl. 11 47. This individual "told [plaintiff] that . . .
Fleming forced [the original coders] to complete the 2004 coding in a couple of weeks
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and that, consequently the coders, towards the end, ‘ just threw something together."’ Ia’.
According to plaintiff, Fleming took no action to remedy the coding errors
plaintiff discovered. See Compl. II 1111 26, 3 l. To the contrary, Fleming directed plaintiff
in March 2006 to put aside her work on error detection and proceed with processing the
2005 dataset. Id. at 3l; see Bland-Collins Decl. 1111 21~22. Plaintiff warned Fleming that
ignoring the issue would propagate substantial coding errors in the 2004 dataset into the
2005 dataset. Bland-Collins Decl. 1111 21-22. In September 2006, however, Fleming
"forbade" plaintiff from raising her concerns at a CAEE workshop in Palo Alto,
California, attended by researchers from other institutions. See Bland-Collins Decl. 11 4l.
In November 2006, plaintiff worked to re-code the 2004 dataset to make it suitable
for statistical analysis. Bland-Collins Decl. 11 5 l. She warned Fleming, however, that
there were still significant problems with the 2005, 2006, and 2007 datasets. See Ex. 36
to Pl.’s Opp’n [Dkt. #89-9]. Fleming was not responsive to plaintiffs concerns, which
caused plaintiff "considerable stress and anxiety." Bland-Collins Decl. 11 54. Over the
next two months, plaintiff focused on drafting her research paper. In December, she
traveled to Palo Alto to work with members of the Stanford team on the paper. Ia’. at 1111
57-65. On that trip, plaintiff shared with a member of the Stanford team her concems
about the integrity of the Howard datasets. See z``d. at 1111 58~59; Pl.’s Facts 11 22.
Plaintiff did not receive the dataset from Stanford that she needed to complete her
research paper until January 2, 2007. Bland-Collins Decl. 11 63. That same day, she
informed Fleming that, due to this delay, the paper would not be ready in two days for
Fleming’s review. Ia’. On January 16, 2007, plaintiff submitted her completed paper to
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Fleming. Ia’. at 11 69. Fleming informed plaintiff that she would not be submitting the
paper to the ASEE "because she would not have time to review it and that [plaintiff] had
not acted as a team player." Ia’. Two days later, plaintiff had a severe panic attack and
took emergency medical leave. Ia’. at 11 72. When plaintiff returned to work on February
5, 2007, Fleming demanded her immediate resignation. Ia'. at 11 73.
STANDARD OF REVIEW
Defendant moves for summary judgment pursuant to Federal Rule of Civil
Procedure 56. Summary judgment is proper where the pleadings, stipulations, affidavits,
and admissions in a case show that there is no genuine issue as to any material fact. FED.
R. CIV. P. 56(0); Celolex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court must
accept as true the evidence of``, and draw "all justifiable inferences" in favor of, the party
opposing summary judgment. Ana’erson v. Lz``berly Lobby, Inc., 477 U.S. 242, 255
(1986). A genuine issue exists where "the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Ia’. at 248.
ANALYSIS
Upon review of the parties’ pleadings, the entire record herein, and applicable law,
plaintiff has presented evidence sufficient to establish a prima facie claim for retaliation
under the FCA whistleblower protection provision. Plaintiff cannot, however, maintain
her claims for wrongful discharge or breach of implied contract. Accordingly,
defendant’s Motion for Summary Judgment is GRANTED in part and DENIED in part.
The FCA prohibits false or fraudulent claims for payment to the federal
govemment. See 31 U.S.C. § 3729(a). Plaintiff s whistleblower retaliation claim is
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based on 31 U.S.C. § 3730(h), which "entitle[s an employee] to all relief necessary to
make that employee . . . whole" if the employee suffered retaliation as a result of lawful
acts taken in furtherance ofa suit under § 3730.3 See 31 U.S.C. § 3730(h). The
Congressional intent behind this provision "was to ‘assure those who may be considering
exposing fraud that they are legally protected from retaliatory acts."’ Unz``led States ex
rel. Yesucz’z``an v. Howard Um'v., 153 F.3d 731, 736 (D.C. Cir. 1998) (quoting S. Rep. No.
99-345, at 34, reprinted in 1986 U.S.C.C.A.N. at 5299).
To maintain a whistleblower retaliation claim, a plaintiff must establish "two basic
elements: (1) acts by the employee ‘in fiirtherance of a suit under § 3730-acts also
known as ‘protected activity’; and (2) retaliation by the employer against the employee
‘because of those acts."’ Um``ted States ex rel. Schwez``zer v. Oce N. V., 677 F.3d 1228,
1237 (D.C. Cir. 2012) (citing Yesudz'an, 153 F.3d at 736). Our Circuit has interpreted the
"protected activity" element broadly. At the time of the protected activity, the employee
need not have intended to bring, nor even been aware of the possibility of bringing, an
FCA claim. Schwez``zer, 677 F.3d at 1238. The appropriate inquiry is whether a plaintiff
was "investigating matters that ‘reasonably could lead’ to a viable False Claims Act
case." Yesua’z``an, 153 F.3d at 740 (intemal quotations and citation omitted).
The causation element of an FCA whistleblower claim turns on two issues: "(l)
did ‘the employer ha[ve] knowledge the employee was engaged in protected activity’;
and (2) was the employer’s adverse action against the employee ‘motivated, at least in
3 Under § 3730, an FCA civil action may be brought by the Attorney General or by a
private person. 31 U.S.C. §§ 3730(a)-(b).
part, by the employee’s engaging in [that] protected activity."’ Schwez'zer, 677 F.3d at
1238 (quoting Yesua’z``an, 153 F.3d at 736) (alteration in original)). As to the notice
requirement, "the kind of knowledge the defendant must have mirrors the kind of activity
in which the plaintiff must be engaged." Yesua’z``an, 153 F.3d at 742. But where the
employee’s "performance of [her] normal job responsibilities constitutes protected
activity," the employee "must ‘overcome the presumption that [she was] merely acting in
accordance with [her] employment obligations’ to put [her] employers on notice." See
Unz``ted States ex rel. Wz'llz'ams v. Martz'n-Baker Az'rcraft Co., 389 F.3d 1251, 1261 (D.C.
Cir. 2004) (quotations and citations omitted). An employee can overcome the so-called
Martz``n-Baker presumption by "acting outside her normal job responsibilities, notifying a
party outside the usual chain of command, advising [her employer] to hire counsel or
taking any [other] action which a factfinder reasonably could conclude would put [the
employer] on notice that litigation [was] a reasonable possibility." Schweizer, 677 F.3d
at 1239 (citations and quotations omitted).
Could a reasonable jury find that Howard discharged plaintiff because of lawful
acts she took in furtherance of an FCA suit conceming falsification of federally-funded
research‘? The answer is yes when the record is viewed in the light most favorable to
plaintiff. There remains a genuine dispute as to whether: (1) plaintiff engaged in
protected activity; (2) defendant was on notice; and (3) there was a causal nexus between
plaintiffs protected activity and her termination. First, a reasonable jury could conclude
that plaintiff s investigation and documentation of errors in the structured interview data
constituted protected activity. Second, with regard to the employer notice requirement
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and the Martz``n-Baker presumption, there is a genuine dispute as to whether plaintiffs
activity went beyond the scope of the job she was hired to perform. Also relevant is
plaintiffs contention that she stressed to Fleming on numerous occasions that ignoring
the errors would constitute unlawful research misconduct. Third, with regard to the
causal nexus requirement, plaintiff vigorously disputes defendant’s contention that
plaintiff voluntarily resigned after missing intemal deadlines for her research paper.
Accordingly, defendant’s Motion for Summary Judgment is DENIED as to plaintiffs
FCA whistleblower claim.
Plaintiff cannot, however, maintain her pendent wrongful discharge claim under
District of Columbia law where the FCA contains an alternative remedy for the
retaliation she alleges. As our Circuit has noted, "the District’s own common law
extinguishes [a wrongful discharge claim] when the statute giving rise to the public
policy at issue contains an alternative remedy." Kassem v. Washington Hosp. Ctr., 513
F.3d 251, 255 (D.C. Cir. 2008) (emphasis in original) (affirming dismissal of a wrongful
discharge claim where an employee failed to pursue the administrative remedy provided
by the Energy Reorganization Act, 42 U.S.C. § 5851). This rule applies to a wrongful
discharge claim based upon the whistleblower protections of the FCA. See Elemary v.
Philipp Holzmann A.G., 533 F. Supp. 2d 116, 135~36 (D.D.C. 2008). Here, plaintiffs
wrongful discharge claim fails because the FCA provides her an alternative remedy for
the discrimination she alleges. Accordingly, defendant’s Motion for Summary Judgment
is GRANTED as to plaintiffs wrongful discharge claim.
With respect to her claim of breach of implied contract, plaintiff concedes that she
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was "expressly informed that her offer of appointment was not a contract or a promise of
continued employment." Def.’s Facts 11 9; Pl.’s Facts 11 9. Upon commencement of her
employment, plaintiff also executed an acknowledgment form confirming her status as an
"at-will" employee and disclaiming any express or implied contractual rights to
continued employment. Def.’s Facts 11 10; Pl.’s Facts 11 10. Plaintiff does not present any
argument or otherwise oppose defendant’s arguments with respect to this claim.
Accordingly, defendant’s Motion for Summary Judgment is also GRANTED as to
plaintiffs breach of implied contract claim.
CONCLUSION
F or all the foregoing reasons, defendant’s Motion for Summary Judgment is
DENIED with respect to plaintiffs FCA whistleblower claim. Defendant’s Motion for
Summary Judgment is GRANTED with respect to plaintiff s claims for wrongful
discharge and breach of implied contract. An Order consistent with this decision
accompanies this Memorandum Opinion.'
l
RICHA}LD-J’. LEoN
United States District Judge
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