Boone v. Mountainmade Foundation , 64 F. Supp. 3d 216 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CRYSTAL BOONE, et al.,
Plaintiffs,
v. Civil Action No. 08-1065 (CKK)
MOUNTAINMADE FOUNDATION,
Defendant.
MEMORANDUM OPINION
(August 20, 2014)
Plaintiffs Crystal Boone, 1 Melissa Harris, Charles Barker, and Holly Smith bring this
action against their former employer, MountainMade Foundation (“MM”), under the Civil False
Claims Act (“FCA”), 31 U.S.C. § 3729, et seq., and state law. Plaintiffs assert two claims against
Defendant: (1) MM violated the “whistleblower” provisions of the FCA; and (2) MM violated
public policy under West Virginia state law by wrongfully discharging Plaintiffs. Currently
before the Court is Defendant’s [70] Motion for Summary Judgment and Plaintiffs’ [95] Motion
to File Surreply to Defendant’s Reply Brief. Upon consideration of the pleadings, 2 the relevant
1
Plaintiff was known as Crystal Roth at the time of her employment at MM, however,
she has since changed her name. Plaintiff is referred to as Crystal Boone throughout the filings
in this case and this Memorandum Opinion.
2
While the Court bases its decision on the record as a whole, its consideration has
focused on the following documents: Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No. [70];
Def.’s Stmt. of Material Facts Not In Genuine Dispute (“Def.’s Stmt.”), ECF No. [70]; Pls.’
Mem. in Opp’n to Def’s Mot. for Summ. J. (“Pls.’ Opp’n”), ECF No. [74]; Pls.’ Controverted
Stmt. of Material Facts (“Pls.’ Controv. Stmt.”), ECF No. [74-1]; Pls.’ Stmt. of Material Facts
(“Pls.’ Stmt.”), ECF No. [74-1]; Pls.’ 1st Errata to Opp’n, ECF No. [91]; Def.’s Reply to Pls.’
Opp’n to Def.’s Mot. for Summ. J., ECF No. [93] (“Def.’s Reply”); Pls.’ Mot. to File a Surreply
(“Pls.’ Mot. to File Surreply”), ECF. No. [95]; Pls.’ Surreply Memo. (“Pls.; Surreply”), ECF No.
[95-3]; Def.’s Opp’n to Pls.’ Mot. to File a Surreply, ECF No. [97]; Pls.’ Reply to Opp’n to Mot.
to File Surreply, ECF No. [98]; Pls.’ 2d Errata to Opp’n, ECF No. [99]. The motion is fully
1
legal authorities, and the record as a whole, the Court GRANTS IN PART and DENIES IN
PART Defendant’s [70] Motion for Summary Judgment, and GRANTS Plaintiffs’ [95] Motion
to File Surreply for the reasons stated herein.
The Court denies summary judgment as to Plaintiff Boone’s alleged demotion under the
FCA, but grants summary judgment as to Plaintiff Boone’s alleged constructive discharge under
both the FCA and state law. The Court denies summary judgment as to Plaintiff Barker’s
alleged demotion under the FCA, but grants summary judgment as to Plaintiff Barker’s
termination from employment under the FCA and state law. Similarly, the Court denies
summary judgment as to Plaintiff Smith’s alleged demotion under the FCA, but grants summary
judgment as to Plaintiff Smith’s termination from employment under the FCA and state law.
Finally, the Court denies summary judgment as to Plaintiff Harris’s alleged constructive
discharge under both the FCA and state law, but grants summary judgment as to Plaintiff
Harris’s alleged demotion under the FCA.
Accordingly, the Plaintiffs’ claims related to the alleged demotions of Plaintiffs Boone,
Barker, and Smith under the FCA as well as the alleged constructive discharge of Plaintiff Harris
under both the FCA and state law survive Defendant’s Motion for Summary Judgment.
I. BACKGROUND
A. Scope of this Action
Defendant MM is a nonprofit organization that received the majority of its funding from
inception through 2006 from federal government grants from the Small Business Administration
briefed and ripe for adjudication. In an exercise of its discretion, the Court finds that holding oral
argument would not be of assistance in rendering its decision. See LCvR 7(f).
2
(“SBA”). 3 Def.’s Stmt. ¶ 3. 4 In March 2006, Plaintiffs, four MM employees, raised concerns to
the MM Board of Directors about MM Executive Director Kate McComas. Id. ¶¶ 13-20.
Among other things, Plaintiffs asserted that Ms. McComas was using the MM debit card for
personal expenditures. Id. ¶¶ 16-17. As a result, Ms. McComas was asked to reimburse MM for
some purchases made on the debit card. Def.’s Stmt. ¶ 23; Pl.’s Controv. Stmt. ¶ 21.
Plaintiffs commenced this action on June 20, 2008, claiming that after making the
disclosures to the board, subsequent actions taken by MM, including Plaintiffs’ alleged
demotions and discharges, were made in retaliation for their whistleblowing activities in
violation of 31 U.S.C. § 3730(h). See Compl., ECF No. [1]; 2d Amend. Compl., ECF No. [33].
Plaintiffs further assert that they were wrongfully discharged in violation of public policy under
West Virginia state law. Defendant argues that Plaintiffs have failed to establish that their
reports to the board put them within the purview of 31 U.S.C. § 3730(h) or, in the alternative,
that they were subject to adverse job actions in retaliation for their reports to the board.
3
Plaintiffs claim to dispute this fact in their Controverted Statement of Material Facts.
See Pls.’ Controv. Stmt. ¶ 3. However, Plaintiffs’ position is that MM received 86% of its
funding from grants through the SBA. Id. This position is not contrary to Defendant’s assertion
that MM received a majority of its funding through these grants.
4
The Court strictly adheres to the text of Local Civil Rule 7(h) when resolving motions
summary judgment, a matter previously brought to the parties’ attention. See Order Establishing
Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly at 6, ECF No. [49]; Order at 2,
ECF No. [68]. Accordingly, the Court shall refer to Defendant’s Statement of Material Facts Not
In Genuine Dispute (“Def.’s Stmt.”), ECF No. [70], unless a statement is contradicted by the
opposing party, in which case the Court may cite to Plaintiffs’ Controverted Statement of
Material Facts (“Pls.’ Controv. Stmt.”), ECF No. [74-1], or Plaintiffs’ Statement of Material
Facts (“Pls.’ Stmt.”), ECF No. [74-1]. To the extent that the Court cites to Plaintiffs’ Statement
of Material Facts, the Court shall also provide the full citation to the supporting exhibits because
of the difficulty in locating Plaintiffs’ exhibits. The Court notes that Plaintiffs’ exhibits appear in
ECF with differing exhibit numbers. For consistency, Plaintiffs’ exhibits will be cited throughout
this Memorandum Opinion using the exhibit numbers as listed in Plaintiffs’ “Corrected Index
and Exhibits” found in Plaintiffs’ second Errata to Opposition, ECF No. [99].
3
Defendant also argues that Plaintiffs failed to make out a claim for wrongful discharge in
violation of public policy.
B. Procedural History
On June 20, 2008, Plaintiffs filed suit against Defendant in this Court. 5 Defendant filed
its Motion to Dismiss, or in the Alternative, a Motion for Summary Judgment on August 22,
2008, contending that Plaintiffs failed to state a claim for which relief could be granted. Judge
Ricardo M. Urbina agreed and granted Defendant’s Motion by an Order entered on February 15,
2010. See Boone v. Mountainmade Found., Inc. (Boone I), 684 F. Supp. 2d 1 (D.D.C. 2010).
On March 12, 2010, Plaintiffs filed a Motion to Alter or Amend Judgment or In the Alternative,
For Leave of Court to File Second Amended Complaint. Judge Urbina granted Plaintiffs’
request to amend the complaint by Memorandum Order entered on April 7, 2011, and Plaintiffs’
Second Amended Complaint was filed that same day. On May 5, 2011, Defendant filed a
Motion to Dismiss Count II of Plaintiffs’ Second Amended Complaint, arguing that Plaintiffs
failed to state a claim for wrongful discharge in violation of public policy. This Court denied
Defendant’s Motion by an Order entered on April 30, 2012. 6 See Boone v. Mountainmade
Found., Inc. (Boone II), 857 F. Supp. 111 (D.D.C. 2012).
Defendant subsequently filed the instant Motion for Summary Judgment. See Def.’s
Mot., ECF No. [70]. Defendant argues that Plaintiffs failed to establish claims for retaliation in
violation of the FCA because Plaintiffs have not provided sufficient evidence to demonstrate that
they were engaged in protected activity. Defendants also argue that Plaintiffs were not demoted
5
Kate McComas and Jack Carpenter were named as Defendants in the original
Complaint, however, they were no longer joined as Defendants in the First Amended Complaint,
filed on March 3, 2009. Compare Compl. at 1, ECF No. [1] with 1st Amend. Compl. at 1, ECF
No. [14].
6
This matter was reassigned from Judge Urbina to this Court on April 20, 2012.
4
or constructively terminated and, accordingly, were not subject to adverse employment actions.
In the two instances in which Plaintiffs were terminated from employment, Defendant argues
that Plaintiffs have not demonstrated that these acts were done in retaliation for the reports to the
board. Finally, Defendant contends that Plaintiffs cannot demonstrate that they were subject to
wrongful discharge in violation of public policy as a matter of law because this claim was
premised on the alleged violation of the retaliation provision of the FCA.
Plaintiffs filed an Opposition to Defendant’s Motion. See Pls.’ Opp’n, ECF No. [74].
The Court notes that Plaintiffs attached reams of exhibits to their opposition, totaling well over
2,000 pages and including entire deposition transcripts. See ECF. Nos. [74], [76]—[79], [81]—
[85], [86]—[87]. Many of the exhibits were mismarked and often the Court was required to
search through the entire set of exhibits to locate the referenced document. In Plaintiffs’
Controverted Statement of Material Facts and Plaintiffs’ Statement of Material Facts, Plaintiffs
respond to 34 of the 36 facts cited in Defendant’s Statement of Facts and then present additional
facts numbered 1 through 442, many of which are largely irrelevant and not cited to the proper
authority within the voluminous exhibits. 7 See generally Pls.’ Controv. Stmt., at ECF No. [74-
1]; Pls.’ Stmt., ECF No. [74-1]. Despite filing two errata, Plaintiffs failed to correct the mistakes
in the original filings. See Pls.’ 1st Errata to Opp’n, ECF No. [91]; Pls. 2d Errata to Opp’n, ECF
No. [99]. In addition, Plaintiffs at time identify facts in their pleadings that are not presented in
either their Controverted Statement of Material Facts or their statement citing 442 additional
material facts. Further, Plaintiffs have failed to provide several exhibits cited as support to their
material facts, thus, providing no evidentiary basis for their assertions.
7
Plaintiffs’ additional facts were numbered 1 through 442, however, several were left
blank and were not numbered sequentially so the Court is uncertain as to the precise number of
facts actually presented.
5
Pursuant to Local Rule 7(h), a party filing a motion for summary judgment must include
a statement of material facts as to which that party contends there is no genuine issue. An
opposition to a motion for summary judgment must include “a separate concise statement of
genuine issues setting forth all material facts as to which it is contended there exists a genuine
issue necessary to be litigated, which shall include references to the parts of the record relied on
to support the statement.” LCvR 7(h) (emphasis added). The D.C. Circuit has explained:
[A] district court judge should not be obliged to sift through hundreds of pages of
depositions, affidavits, and interrogatories in order to make his own analysis and
determination of what may, or may not, be a genuine issue of material disputed
fact. In this respect, a district court may legitimately look to and rely upon counsel
to identify the pertinent parts of the record, to isolate the facts that are deemed to
be material, and to distinguish those facts which are disputed from those that are
undisputed.
Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988). Indeed, “our district courts’ Local Civil
Rule 7(h) expressly authorizes courts to treat as forfeited evidence—including record evidence—
that the parties fail to highlight at summary judgment . . . . The existence of a genuine dispute of
material fact, therefore, ordinarily turns not on a review of the entire record, but rather on the
‘facts’ and the portions of the record each party specifically highlights.” Estate of Parsons v.
Palestinian Auth., 651 F.3d 118, 136-37 (D.C. Cir. 2011). In an exercise of its discretion, the
Court shall only consider material facts that are set out in the Defendant’s Statement of Material
Facts Not In Genuine Dispute, Plaintiffs’ Controverted Statement of Material Facts, or Plaintiffs’
Statement of Material Facts, and that are cited to and supported by exhibits filed with the Court.
Fed. R. Civ. P. 56(c) & (e)(2) (“If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact . . . , the court may consider the fact undisputed
for the purposes of the motion.”). The Court shall not rely on material facts raised only in the
parties’ pleadings, and not in their statements of material facts. Jackson v. Finnegan,
6
Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150-51 (D.C. Cir. 1996) (noting that the
Court may require strict compliance with the predecessor rule to LCvR 7(h), which “places the
burden on the parties and their counsel, who are most familiar with the litigation and the record,
to crystallize for the district court the material facts and relevant portions of the record”).
Defendant, through a footnote in its reply, requests that the Court enter a protective order
to relieve Defendant from responding to Plaintiffs’ additional facts. Def.’s Reply at 2 n.1. The
Court notes that the proper procedure for obtaining a protective order is through the filing of a
separate motion, not through placing the request in a footnote within the reply. However,
Defendant’s reply rests on legal rather than factual arguments in support of its motion. See
generally Def.’s Reply (arguing that Plaintiffs did not provide evidence to establish that they
were engaged in “protected activity” or subject to “adverse employment actions” within the
meaning of the statute and case law). Accordingly, the Court shall not require Defendant to
respond to Plaintiffs’ Statement of Material Facts.
Given that the filings are a far cry from a model of clarity, the Court shall address the
issues raised by the parties in their statements of material facts that are properly cited to the
record and supported by the cited material. To the extent that this affects the outcome of the
pending motion, the fault and accountability must rest with the parties. In instances where the
Court has been unable to locate a document or evidence is cited incorrectly, this information
shall be noted in a footnote.
II. LEGAL STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and [that he] . . . is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar
7
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to
the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find for the non-movant. Id.In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to
specific parts of the record—including deposition testimony, documentary evidence, affidavits or
declarations, or other competent evidence—in support of his position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually establish the absence or presence of a
genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual
basis in the record cannot create a genuine dispute sufficient to survive summary judgment.
Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C.
Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact,” the district court may “consider the fact
undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e).
When faced with a motion for summary judgment, the district court may not make
credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the
light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty
Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are
susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine
“whether the evidence presents a sufficient disagreement to require submission to [the trier of
8
fact] or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby,
477 U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is
some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not
sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50(citations omitted).
III. DISCUSSION
The FCA imposes civil penalties against a person who “knowingly presents, or causes to
be presented, to an officer or employee of the United States Government . . . a false or fraudulent
claim for payment or approval,” or “knowingly makes, uses, or causes to be made or used, a
false record or statement to get a false or fraudulent claim paid or approved by the Government.”
See 31 U.S.C. § 3729(a)(1)-(2) (repealed 2009). Section 3730(h) of the FCA was enacted to
provide legal protection from retaliatory acts for those who may be considering exposing fraud.
United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998) (quoting S.
REP. NO. 99-345, at 35, reprinted in 1986 U.S.C.C.A.N. at 5300). Section 3730(h), at the
relevant time period, provided:
Any employee who is discharged, demoted, suspended, threatened, harassed, or in
any other manner discriminated against in the terms and conditions of
employment by his or her employer because of lawful acts done by the employee
on behalf of the employee or others in furtherance of an action under this section,
including investigation for, initiation of, testimony for, or assistance in an action
filed or to be filed under this section, shall be entitled to all relief necessary to
make the employee whole . . . .
31 U.S.C. § 3730(h) (repealed 2009).
There are two basic elements to a claim under this section: (1) “acts by the employee ‘in
furtherance of’ a suit under § 3730 — acts also known as ‘protected activity’”; and (2)
9
“retaliation by the employer against the employee ‘because of’ those acts.’” United States ex rel.
Schweizer v. Océ N.V., 677 F.3d 1228, 1237 (D.C. Cir. 2012). The second element of the claim,
known more commonly as the causation question, is further divided into two inquiries: “(1) 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 part, by the
employee’s engaging in [that] protected activity.’” 8 Id. at 1237-38 (quoting United States ex rel.
Yesudian, 153 F.3d at 736).
The McDonnell Douglas burden-shifting framework applies to retaliation claims at the
summary judgment stage. Schweizer, 677 F.3d at 1241. As the D.C. Circuit explained:
Under McDonnell Douglas, an employee first must make out a prima facie case of
retaliation by showing ‘(1) that he engaged in statutorily protected activity; (2)
that he suffered a materially adverse action by his employer; and (3) that a causal
link connects the two.’ If the employee does so, then the burden shifts to the
employer to ‘produce admissible evidence that, if believed, would establish that
[its] action was motivated by a legitimate, nondiscriminatory reason.’ Once that
occurs, ‘the burden-shifting framework disappears, and a court reviewing
summary judgment looks to whether a reasonable jury could infer . . . retaliation
from all the evidence.’
Id. at 1240-41 (internal citations omitted).
A. Protected Activity
The Court first turns to the issue of whether Plaintiffs engaged in a protected activity by
making reports to the MM board regarding Ms. McComas’s actions. In order to come within the
protection of section 3730(h), “‘it is sufficient that a plaintiff be investigating matters that
‘reasonably could lead’ to a viable False Claims Act case.’” United States v. Am. Nat’l Red Cross
(Hoyte ex rel. United States), 518 F.3d 61, 66 (D.C. Cir. 2008) (quoting Yesudian, 153 F.3d at
740). Plaintiffs’ mere dissatisfaction with their treatment on the job is not enough to demonstrate
8
The Court shall discuss Defendant’s contention that Plaintiffs must establish causation
under the “but-for” standard infra.
10
that they were engaged in protected activity. Yesudian, 153 F.3d at 740. “Nor is an employee’s
investigation of nothing more than his employer’s non-compliance with federal or state
regulations.” Id. Instead, “[t]o be covered by the False Claims Act, the plaintiff’s investigation
must concern ‘false or fraudulent’ claims.” Id. “Determining whether an employee has engaged
in protected conduct under the FCA is a ‘fact specific inquiry.”” Shekoyan v. Sibley Int’l, 409
F.3d 414, 423 (D.C. Cir. 2005) (quoting Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176,
187 (3d Cir. 2001)).
Plaintiffs are not, however, required to actually know that the investigation they are
pursuing could result in a FCA suit and, accordingly, Plaintiffs are not required to alert
Defendant of the prospect of a FCA suit. United States ex rel. Schweizer v. Océ N.V., 677 F.3d
1228, 1237 (D.C. Cir. 2012). Rather, the requirement is only that acts be done in furtherance of
a FCA action and “even an investigation conducted without contemplation of—or knowledge of
the legal possibility—a False Claims Act suit can end up being ‘in furtherance’ of such an
action.” Yesudian, 153 F.3d at 741. As the D.C. Circuit reasoned, to require Plaintiffs to have
specific knowledge that their investigation would give rise to a FCA suit would limit protection
from retaliation only to lawyers or those versed in the law. Id.Plaintiffs present the following account of the events leading up to their disclosures
regarding Ms. McComas, MM’s Executive Director, to the MM board. Plaintiffs, after realizing
they each had information about Ms. McComas, met several times in February and March 2006
to discuss their individual experiences. Pls.’ Stmt. ¶¶ 87- 88 (citing Pls.’ Ex. 208 at 69, 83, ECF
No. [79-3] (Smith Dep., Vol. I)). In particular, Plaintiffs believed that Ms. McComas was using
11
MM’s debit card for personal expenditures, 9 that she did not work her required hours, that she
misrepresented her hours worked on her timesheet, and that she used the MM vehicle for
personal use and did not properly log mileage. Plaintiffs also addressed other issues regarding
Ms. McComas’s lack of leadership and management skills. See Pls.’ Stmt. ¶¶ 110-125 (citing
Pls.’ Ex. 5, ECF No. [74-2] (Letter from Barker to MM board); Pls.’ Ex. 23, ECF No. [74-11]
(Letter from Harris to MM board); Pls.’ Ex. 24, ECF No. [74-12] (Letter from Smith to MM
board); Pls.’ Ex. 53, ECF No. [87-8] (Letter from Boone to MM board)).
In early March 2006, Plaintiff Boone disclosed the group’s concerns about Ms. McComas
to Bill Phillips, MM’s CPA at Toothman & Rice, who in turn consulted with another partner at
his firm. Pls.’ Stmt. ¶¶ 90-91 (citing Pls.’ Ex. 200 at 97, 104, ECF No. [78-1] (Boone Dep., Vol.
I)). Mr. Phillips informed Ms. Boone that if she did not take the concerns regarding Ms.
McComas to the MM Board of Directors, that she could be held criminally liable. Id. Plaintiffs
then decided that Ms. Boone would raise their concerns to Dale McBride, an MM board member.
Pls.’ Stmt. ¶ 92 (citing Pls.’ Ex. 200 at 101-02, ECF No. [87-1] (Boone Dep., Vol. I)). After
speaking with Ms. Boone, Mr. McBride notified Jack Carpenter, chairman of the MM board, and
Peter Wolk, MM’s legal counsel, of the allegations and they in turn spoke with Ms. Boone. Pls.’
Stmt. ¶¶ 93-94 (citing Pls.’ Ex. 167 ¶¶ 7-9, ECF No. [87-7] (Boone Declaration); Pls.’ Ex. 200 at
104, ECF No. [87-1] (Boone Dep., Vol. I)). Ms. Boone was told that the issue would be
addressed at the next MM board meeting. Mr. Carpenter told Ms. Boone that other employees
with concerns about Ms. McComas could submit letters to the MM board. Def.’s Stmt. ¶ 14;
Pls.’ Controv. Stmt. ¶ 14. All four Plaintiffs submitted letters to the MM board, each dated
9
It is undisputed that MM maintained a debit card through which funds could be
withdrawn from MM’s checking account with Huntington Bank. Def.’s Stmt. ¶¶ 8-9; Pls.’
Controv. Stmt. ¶¶ 8-9. Funds from credit card purchases at MM retail stores were deposited into
the Huntington Bank account. Def.’s Stmt. ¶ 8; Pls.’ Controv. Stmt. ¶ 8.
12
March 17, 2006, and Ms. Boone also submitted a spreadsheet to the MM board detailing debit
card charges, totaling $14,353.80, that she believed to be personal charges incurred by Ms.
McComas. Def.’s Stmt. ¶¶ 15, 20; Pls.’ Controv. Stmt. ¶¶ 15, 19 (citing Pls.’ Ex. 5, ECF No.
[74-2] (Letter from Barker to MM board); Pls.’ Ex. 23, ECF No. [74-11] (Letter from Harris to
MM board); Pls.’ Ex. 24, ECF No. [74-12] (Letter from Smith to MM board); Pls.’ Ex. 53, ECF
No. [87-8] (Letter from Boone to MM board); Pls.’ Ex. 25, ECF No. [74-13] (Spreadsheet
created by Boone)). Ms. Boone’s letter to the board asserted that, as the bookkeeper for MM,
Ms. Boone was “covering improper use of SBA monies.” Def.’s Stmt. ¶ 16; Pls.’ Controv. Stmt.
¶ 16 (citing Pls.’ Ex. 53, ECF No. [87-8] (Letter from Boone to board)).
The board meeting took place on March 23, 2006, with Ms. Boone present. Pls.’ Stmt. ¶
126 (citing Pls.’ Ex. 97, ECF No. [76-7] (Minutes from March 23, 2006 Board Meeting). During
the board meeting, Mr. Carpenter discussed the need for Ms. McComas to turn in expense
records. 10 See Pls. Ex. 97 at 2-3, ECF No. [76-7] (Minutes from March 23, 2006 Board
Meeting); Pls.’ Ex. 200 at 148, ECF No. [78-1] (Boone Dep., Vol. I). Ms. McComas resigned
as MM’s Executive Director following the board meeting on March 23, 2006, but withdrew her
resignation two days later via e-mail to Mr. Carpenter and Laura Kuhns, another MM board
member. Pls.’ Stmt. ¶¶ 128-29 (citing Pls.’ Ex. 173, ECF No. [82-5] (E-mails from McComas to
Carpenter)). In April 2006, Ms. McComas met with Mr. Carpenter and Ms. Kuhns to review the
charges listed on the spreadsheet that was provided by Ms. Boone. Def.’s Stmt. ¶ 23; Pls.’
Controv. Stmt. ¶ 21. The parties dispute the amount that Ms. McComas was required to
10
While this fact was not specifically pointed out by Plaintiffs in their Statement of
Material Facts, the discussion is referenced in Exhibits submitted by Plaintiffs as cited. The
actual discussion that took place at the board meeting is not relevant to the Court’s analysis of
whether Plaintiffs were engaged in protected activity, but is included in this discussion to clarify
events that occurred subsequent to the board meeting, including Ms. McComas’s brief
resignation.
13
reimburse to MM as a result of these meetings. Plaintiffs allege that Ms. McComas reimbursed
MM $6,100.76 for personal charges made on the MM debit card and Defendant asserts that the
amount was $4,618.98. Id.The parties disagree as to what proof Plaintiffs must present in order to demonstrate that
they were investigating matters that “could reasonably lead” to a viable FCA suit and,
consequently, that they were engaged in protected activity. The parties essentially talk past one
another in their briefs, with Defendant relying on case law that establishes the standard at the
relevant time to bring a successful qui tam action under the FCA and Plaintiffs relying on case
law regarding the retaliation provision of the FCA.
Defendant argues that Plaintiffs must present either proof of a false claim directly
submitted to the U.S. government or proof “that false representations were knowingly made to
the government and that the false representations were made with the intention of receiving
payment from the government.” Def.’s Mot. at 12. Defendant argues that Plaintiffs failed to
offer evidence that they raised concerns about false or fraudulent submissions by MM to the
federal government because purchases made on the MM debit card were not submitted to the
government for reimbursement and the funds in the debit card account at Huntington Bank were
proceeds from credit card purchases at the MM retail stores. Id. at 12-13. Therefore, Defendant
argues that Plaintiffs’ actions do not fall within the purview of section 3730(h) protection
because Plaintiffs only raised concerns about the misuse of funds already disbursed to MM, not
about false claims submitted directly to the federal government. Id. at 13. Further, Defendant
argues that Plaintiffs have presented no evidence that would justify an inference that MM made
false statements to the government with the specific intent of getting the false claim approved by
the government. Id. at 14. Plaintiffs disagree, arguing that their actions reasonably may have led
14
to a FCA suit given that the majority of MM’s budget came from SBA grants. 11 Pls.’ Opp’n at
34-36. The Court concludes that Plaintiffs engaged in protected activity within in the meaning of
section 3730(h) for the reasons described herein. Id.
Defendant cites to a prior opinion in the instant matter in support of its argument that
Plaintiffs must establish Ms. McComas did more than misuse federal funds already distributed to
MM. Def.’s Mot. at 12 (citing Boone v. Mountainmade Found., 684 F. Supp. 2d 1, 9 (D.D.C.
2010)). Defendant states that, “[a]t best, the evidence will show that [Plaintiffs] raised general
concerns regarding possible misuse of funds . . . .” Id. Defendant also relies on Allison Engine
Co. v. United States ex rel. Sanders, 553 U.S. 662 (2008), to support its argument that Plaintiffs
failed to establish that they could raise a viable qui tam claim against MM. Def.’s Mot. at 12;
see also Allison Engine, 553 U.S. 662, superseded by statute, Fraud Enforcement and Recovery
Act of 2009, Pub. L. No. 111-21, § 4(a), 123 Stat. 1617, as recognized in United States ex rel.
Folliard v. CDW Tech. Servs., Inc., 722 F. Supp. 2d 20, 34-35 (D.D.C. 2010). In Allison Engine,
the Supreme Court noted that a qui tam action brought under section 3729(a)(1) requires proof
that a false claim was submitted directly to the government. Id. at 667-68. The Supreme Court
11
Plaintiffs allege that MM sought reimbursement from the federal government for the
cost of its inventory. Pls.’ Opp’n at 7. Plaintiffs submitted as an exhibit a Notice of Award
issued by the U.S. Small Business Administration that they purport demonstrates this fact. Pls.’
Stmt. ¶ 23 (citing Pls.’ Ex. 55, ECF No. [76-3] (Notice of Award, U.S. Small Business
Administration)). Specifically, Plaintiffs note that the Notice reads, “[t]o receive payment or
reimbursement, the Receipt must complete Standard Form 270 (‘Request for Advance or
Reimbursement’)” as well as a ‘Detailed Actual Expenditure for Period Covered by Request.
Pls.’ Stmt. ¶ 68 (citing Pls.’ Ex. 55 at 10, ECF No. [76-3] (Notice of Award, U.S. Small Business
Administration)). Plaintiffs further allege that a Taylor Books purchase in the amount of
$1,107.70 was submitted to the SBA for reimbursement and that that total included $60 for mugs
that Ms. McComas gave as a gift to Ms. Smith. Pls.’ Surreply at 3 (citing Ex. 164, at 2, ECF
No. [95-4] (Smith’s Amend. Answers to 1st Set of Interrogatories)). However, Plaintiffs do not
allege that this information was presented to the board as part of its report and, accordingly, is
not relevant for the purposes of this analysis. See Pls.’ Ex. 24, ECF No. [74-12] (Letter from
Smith to MM board) (making no reference to the mugs allegedly given to Ms. Smith by Ms.
McComas as a gift).
15
also held that actions brought under section 3729(a)(2), unlike those brought under section
3729(a)(1), do not require proof of an actual false claim submitted directly to the government,
but rather require proof that the defendant made a false record or statement for the purpose of
getting a false or fraudulent claim paid or approved by the government. Id. at 671. Applying
this approach, it was insufficient under section 3729(a)(2) for a subcontractor to make a false
statement to a private entity without the specific intent that the private entity would submit the
false claim to the government and that the government would rely on that statement as a
condition of payment. 12 Id. Accordingly, the Supreme Court’s ruling in Allison Engine clarified
that a plaintiff was required to provide proof that a false claim was submitted directly to the
government under section 3729(a)(1) or proof that defendant made a false record for the purpose
of getting a false or fraudulent claim approved by the government under 3729(a)(2), even if this
false statement was made to a private entity. 13 Defendant argues that Plaintiffs have failed to
provide the requisite proof to establish that they could have raised a viable qui tam claim based
12
Prior to the Supreme Court’s ruling in Allison Engine, this jurisdiction adopted the
specific intent approach under section 3729(a)(2) approved by the Supreme Court. United States
ex rel. Totten v. Bombardier Corp., 380 F.3d 488 (D.C. Cir. 2004).
13
The False Claims Act was amended in 2009 to eliminate the specific intent requirement
for actions brought under section 3729(a)(2). This amendment applied retroactively to “claims”
for reimbursement pending on or after June 7, 2008. Fraud Enforcement and Recovery Act of
2009, Pub. L. No. 111-21, § 4(a), 123 Stat. at 1624-25; see also, e.g., United States ex rel.
Banignan v. Organon USA Inc., 883 F. Supp. 2d 277, 298 n.30 (D. Mass. 2012). Judge Urbina
in this matter previously held that the 2009 amendment does not apply retroactively to the instant
action because “claims” refers to defendant’s request for payment, rather than civil actions
pending on or after June 7, 2008. See Memorandum Opinion at 9 n.7, ECF No. [25]. The Court
shall not reach a conclusion on this matter as the Court does not rely on section 3729(a)(2) in
reaching its finding. See United States v. Sci. Applications Int’l Corp., 626 F.3d 1257, 1266
(D.C. Cir. 2010) (not reaching the issue of whether the trial court erred in failing to apply the
2009 amendment retroactively because it did not have a bearing on the outcome of the case);
United States ex rel. Purcell v. MWI Corp., No. 98-2088 (GK), 2014 WL 2881550, at *3 n.4
(D.D.C. June 25, 2014) (adopting the holding in other jurisdictions that the retroactivity
provision only applies to claims, meaning a defendant’s fraudulent requests for money, pending
on or after June 7, 2008, rather than civil cases pending on or after that date).
16
on Allison Engine and, as a result, have not demonstrated that they were engaged in protected
activity.
Plaintiffs, on the other hand, rely on the D.C. Circuit’s opinion in United States ex rel.
Yesudian v. Howard Univ., 153 F.3d 731 (D.C. Cir. 1998), to support their argument that they
were engaged in protected activity by virtue of the fact that a majority of MM’s budget came
from SBA grants. Pls.’ Opp’n at 26. The plaintiff in Yesudian was an employee of the
Purchasing Department at Howard University when he filed suit against the University and three
of his supervisors, alleging that defendants submitted false claims in violation of the FCA and
that defendants retaliated against him for reporting the false claims allegations. Yesudian, 153
F.3d at 734. The D.C. Circuit found that plaintiff engaged in protected activity because he had
knowledge that Howard received 80% of its money from the federal government and,
accordingly, it would have been reasonable for plaintiff to conclude that there was a “distinct
possibility” that he would find evidence of resubmission of claims by Howard directly to the
federal government. Id. at 740. Further, the Court noted that the 80% figure alone gave plaintiff
a “good faith basis” for going forward with a claim against Howard even if he did not have proof
of resubmission of a false claim to the government. Id.Following the reasoning set forth in Yesudian, Plaintiffs argue that that they have
established that they were engaged in protected activity because they had reason to believe that
the alleged misuse of the MM debit card would have resulted in fraud upon the U.S.
government. 14 Pls.’ Opp’n at 34. It is undisputed that MM received the majority of its funding
14
To the extent that Defendant asserts that Plaintiff’s reliance on Yesudian is misplaced
because it was decided prior to the holding that section 3729(a)(2) embodies a specific intent
requirement, the Court notes that Defendant relies on the discussion in Yesudian for bringing a
qui tam action, not a retaliation action. Def.’s Reply at 4-5. As the Court previously noted, the
bringing of a viable qui tam action is not an element of a retaliation claim.
17
from SBA grants. Further, Plaintiff Boone, who was the Vice President of Finance at the time of
Plaintiffs’ report to the board, estimated that 86% of MM’s funding was received through grants
from the federal government. Id. at 34. Plaintiffs point to their knowledge of MM’s finances
and Ms. Boone’s estimate of MM’s funding from the federal government in support of their
argument that they succeeded in establishing that they were engaged in protected activity when
they reported Ms. McComas’s activities to the MM board. Id. at 34.
While the Court does not dispute that during the relevant time period Plaintiffs would
have needed to produce evidence of a false claim submitted directly to the U.S. government or
possibly of Defendant’s specific intent to get a false or fraudulent claim approved by the
government in order to succeed in an actual qui tam action, such a standard is not required for a
FCA whistleblower retaliation claim. Defendant’s argument conflates Plaintiffs’ burden if they
were to bring a qui tam action pursuant to section 3729(a) with Plaintiffs’ burden in the instant
action, alleging retaliation pursuant to section 3730(h). Case law in this jurisdiction requires that
plaintiffs need only demonstrate that their investigation could reasonably lead to a FCA suit to be
afforded whistleblower protection, not that plaintiffs’ investigation uncovered and alleged all the
essential elements of a qui tam action. See Hoyte ex rel. United States, 518 F.3d 61, 66 (D.C.
Cir. 2008); Yesudian, 153 F.3d at 742 (The D.C. Circuit, quoting Judge Easterbrook, noted that
“‘§ 3730(h) protects ‘investigation’ as well as reports of fraud, and an ‘investigation’ precedes
communication.”).
Plaintiffs do not raise a qui tam action against MM in their complaint, nor is there a
requirement that Plaintiffs pursue a qui tam action against Defendant or that the Attorney
General bring an action against Defendant pursuant to section 3729 in order for Plaintiffs to
receive protection against retaliation. See 2d Amend. Compl.; Yesudian, 153 F.3d at 740.
18
Indeed, “[a]n employee can be . . . engaged in protected activity—although the employee is not
contemplating bringing a qui tam suit, is not even aware that there is such a thing as a qui tam
action, and has no idea whether his—the employee’s investigation or other acts, if made known
to the government, might cause the Attorney General to sue his employer under the False Claims
Act.” Schweizer, 677 F.3d at 1238.
As the D.C. Circuit has explained, section 3730(h) provides “protect[ion] [against
retaliation] for employees while they are collecting information about a possible fraud, before
they have put all the pieces of the puzzle together.” Yesudian, 153 F.3d at 740. Indeed, evidence
of resubmission of a claim from MM to the federal government is “the kind of information a
plaintiff normally cannot acquire until he files a [qui tam] suit and obtains the benefit of court-
sanctioned discovery.” Id. at 740. In Yesudian, the D.C. Circuit explained that given Plaintiff’s
knowledge of Howard’s finances, “it would have been reasonable to conclude there was a
‘distinct possibility’ he would find evidence of resubmission of the claims.” Id. at 740.
Likewise, here, Plaintiffs’ personal knowledge that the substantial majority of MM’s
funding came from federal grants, coupled with Ms. Boone’s specific assertion to the MM board
that she was covering the improper use of SBA funds is sufficient to demonstrate that Plaintiffs’
investigation reasonably could have led to a FCA action. Plaintiffs raised their concerns about
the misuse of the debit card to the MM’s CPA, lawyer, and board. See United States ex rel.
Schweizer v. Océ N.V., 677 F.3d 1228, 1240 (D.C. Cir. 2012) (holding that Plaintiff gathering
evidence that employer defrauded federal agencies, sharing that evidence with her superiors, and
warning the employer of FCA liability is “a classic example of protected activity”); United States
ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 741 n.9 (D.C. Cir. 1998) (noting that several
courts have found internal reporting of false claims to be an example of protected activity).
19
Accordingly, the Court concludes that Plaintiffs have pled sufficient facts for a reasonable jury to
conclude that Plaintiffs engaged in protected activity within the meaning of section 3730(h).
B. Adverse Employment Actions & Evidence of Retaliation
The Court now turns to the issues of whether Plaintiffs’ were subject to adverse
employment actions and, if they were, whether the actions were taken in retaliation for Plaintiffs’
reports to the MM board. Plaintiffs each argue that they were demoted and either terminated or
constructively terminated in retaliation for reporting Ms. McComas to the MM board. See Pls.’
Opp’n at 36-38. In support of this argument, Plaintiffs present evidence that they purport
demonstrates that Ms. McComas had a retaliatory animus towards them because they reported
her to the board. See id. Defendant asserts that Plaintiffs failed to establish in most instances
that they were subject to adverse employment actions and failed to demonstrate that any alleged
employment action was done in retaliation for Plaintiffs’ reports to the board. Def.’s Mot. at 15-
21. The Court shall address each alleged adverse employment action in turn.
1. Relevant Legal Standard
“[C]laims of retaliation are governed by the McDonnell Douglas burden-shifting
scheme.” Carney v. Am. Univ., 151 F.3d 1090, 1094 (D.C. Cir. 1998) (citing McKenna v.
Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984)). Under the McDonnell Douglas paradigm,
Plaintiffs have the initial burden of proving by a preponderance of the evidence a prima facie
case of retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To prove
unlawful retaliation, Plaintiffs must show that (1) they were engaged in statutorily protected
activity; (2) MM took a materially adverse action against them; and (3) a causal connection
exists between the two. United States ex rel. Schweizer v. Océ N.V., 677 F.3d 1228, 1240-41
(D.C. Cir. 2012). Here, the Court already has found that Plaintiffs produced sufficient evidence
to demonstrate that they were engaged in protected activity.
20
The Court must first determine whether Plaintiffs’ alleged demotions and constructive
discharges were adverse employment actions. “[A]n employee suffers an adverse employment
action if he experiences materially adverse consequences affecting the terms, conditions, or
privileges of employment or future employment opportunities such that a reasonable trier of fact
could find objectively tangible harm.” Czekalski v. Lahood, 589 F.3d 449, 454 (D.C. Cir. 2009)
(quoting Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002)). In the retaliation context, an
“adverse action” has a broader meaning than in a discrimination context. Baird v. Gotbaum, 662
F.3d 1246, 1248-49 (D.C. Cir. 2011). An employment action is materially adverse in the
retaliation context if “it well might have ‘dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” Burlington Northern & Santa Fe Ry. v. White, 548 U.S.
53, 67-68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
If Plaintiffs succeed in establishing a prima facie case, the burden then shifts to MM to
articulate some legitimate, non-retaliatory reason for its actions, and to produce credible
evidence supporting its claim. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Accordingly, if Defendant produces a legitimate non-discriminatory reason for its actions at the
summary judgment stage, “the district court need not—and should not—decide whether the
plaintiff actually made out a prima facie case under McDonnell Douglas.” Jones v. Bernanke,
557 F.3d 670, 678 (D.C. Cir. 2009) (Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494
(D.C. Cir. 2008)) (internal quotation marks omitted). Accordingly, if MM offers legitimate, non-
retaliatory explanation for Plaintiffs’ alleged demotions and discharges, the only question for the
Court to address is “whether the employee’s evidence creates a material dispute on the ultimate
issue of retaliation.” Id. Thus, the Court must review “each of the three relevant categories of
evidence—prima facie, pretext, and any other—to determine whether they ‘either separately or
21
in combination’ provide sufficient evidence for a reasonable jury to infer retaliation.” Id. at 679
(quoting Waterhouse v. District of Columbia, 298 F.3d 989, 996 (D.C. Cir. 2002)).
2. Demotion Claims of Plaintiffs Boone, Barker and Smith
Following the disclosure to the MM board, MM hired Nancy Leonard, 15 a management
consultant in April 2006 to “evaluate management practices and restructure the organization.” 16
Def.’s Stmt. ¶¶ 24-25. Ms. Leonard submitted a written report to the MM board, dated May 11,
2006, that made several recommendations for the company, including the hiring of a General
Manager. Def.’s Stmt. ¶ 26 (citing Def.’s Ex. 14 at 5, ECF No. [70-14] (Leonard’s Report to
MM board)). In June 2006, MM announced the implementation of a new organizational
structure, and, in July 2006, MM hired Mark Kessler as its General Manager. Def.’s Stmt. ¶¶ 27,
29; Pls.’ Stmt. ¶ 196 (citing Pls.’ Ex. 148, ECF No. [81-7] (Organizational Charts from January
and June 2006)). Plaintiffs allege that Ms. McComas and Ms. Leonard were friends prior to Ms.
Leonard being hired at MM, and that the reorganization recommended by Ms. Leonard was done
in retaliation for Plaintiffs’ reports to the board. Pls.’ Opp’n at 13-14. The parties raise two
main issues regarding the new organizational structure: (1) whether Plaintiffs were demoted as a
result of the change; and (2) whether the change in organizational structure was implemented in
retaliation for Plaintiffs’ protected activity.
15
The Court notes that Ms. Leonard has since changed her name to Nancy McIntyre,
however, she is referred to as Nancy Leonard throughout the filings in this case and this
Memorandum Opinion.
16
Plaintiffs purport to dispute the reason why Ms. Leonard was hired, however, their
response points to a paragraph within a document that is completely unrelated to Ms. Leonard or
her role at MM. Pls.’ Controv. Stmt. ¶ 23 (citing Pls.’ Ex. 167 ¶ 32, ECF. No. [87-7] (Boone
Declaration)).
22
The Court first turns to the issue of whether Plaintiffs Boone, Smith, and Barker were
demoted. 17 A purely lateral transfer that does not involve a demotion either in form or substance
does not rise to the level of a materially adverse employment action. Pardo-Kronemann v.
Donovan, 601 F.3d 599, 607 (D.C. Cir. 2010) (citing Brown v. Brody, 199 F.3d 446, 455-56
(D.C. Cir. 1999)). However, “[l]ateral transfers—those entailing ‘no diminution in pay and
benefits’—qualify as adverse employment actions if they result in ‘materially adverse
consequences affecting the terms, conditions, or privileges’ of the plaintiff’s employment.” Id.(quoting Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003)). Generally, whether or not a
particular reassignment of duties constitutes an adverse action is a jury question. Id. “[T]he fact-
finder must compare the position the plaintiff held before the transfer to the one he holds
afterwards . . . . The question, then, is whether a reasonable jury could conclude that the transfer
from the former to the latter was adverse.” Id.Defendant alleges that Plaintiffs were not demoted because they received the same salary
and benefits both before and after the reorganization. Def.’s Mot. at 17. Plaintiffs disagree and
argue that the changes in their titles, changes in job responsibilities, and changes to and
inconsistent enforcement of MM policies constituted a demotion. Pls.’ Opp’n at 36-37.
Prior to the June 2006 reorganization, Ms. Boone held the position of Vice President of
Finance, and was Assistant Secretary/Treasurer of MM. After the reorganization, her title was
changed to Finance Manager. Pls.’ Stmt. ¶ 227 (citing Pls.’ Ex. 200 at 226-27, ECF No. [78-1]
(Boone Dep., Vol. I)). Plaintiffs allege that in addition to the title change, Ms. Boone was
removed as a signatory on three MM bank accounts and relieved of all of her human resources
17
The Court shall analyze Plaintiff Harris’s demotion claim separately and, accordingly,
the use of the term “Plaintiffs” throughout this section shall only refer to Ms. Boone, Mr. Barker,
and Ms. Smith.
23
duties. Pls.’ Stmt. ¶¶ 208-09 (citing Pls.’ Ex. 200 at 227, ECF. No [78-1] (Boone Dep., Vol. I)).
Additionally, Plaintiffs argue that Ms. Boone no longer had supervisory authority over the
Executive Assistant to the Executive Director, and that she was no longer authorized to work
independently of the Executive Director in her absence. Pls.’ Stmt. ¶¶ 213-14, 228 (citing Pls.’
Ex. 200 at 220 (Boone Dep., Vol. I); Pls.’ Ex. 15, ECF No. [74-9] (Vice President of Finance –
Job Description)). Finally, Ms. Boone no longer attended or took minutes at MM board
meetings, nor did she make financial presentations to the board. Pls.’ Stmt. ¶¶ 198, 201-02
(citing Pls.’ Ex. 200 at 227, ECF No. [78-1] (Boone Dep., Vol. I); Pls.’ Ex. 206 at 89, ECF No.
[87-10] (Carpenter Dep., Vol. I)).
Mr. Barker’s title changed from Director of Operations to IT Manager as a result of June
2006 reorganization. Pls.’ Stmt. ¶¶ 259-60, 262 (citing Pls.’ Ex. 148, ECF No. [81-7]
(Organizational Charts from January and June 2006)). Plaintiffs assert that Mr. Barker lost his
supervisory authority over two staff members as a result of the reorganization and that he was
never given a job description for his new role. 18 Pls.’ Stmt. ¶¶ 262, 264 (citing Pls.’ Ex. 202 at
120, 164, ECF No. [78-3] (Barker Dep.); Pls.’ Ex. at 8, ECF No. [81-10] (Barker’s Ans. to Defs.’
1st Set of Interrogatories)). 19 Plaintiffs allege that Mr. Barker was no longer allowed to make
judgment calls when Ms. McComas was out of the office. Pls.’ Stmt. ¶ 238 (citing Pls.’ Ex. 209
at 120, ECF No. [87-11] (Smith Dep., Vol. II)).
18
Plaintiffs’ Statement of Material Facts also indicates that “MM removed [Mr. Barker’s]
authority and duty to supervise . . . the management of three retail facilities.” Pls.’ Stmt. ¶ 265.
However, the authority cited by Plaintiffs does not support this fact. See Pls.’ Ex. 202 at 14, 120,
ECF No. [78-3] (Barker Dep.).
19
This Exhibit is not listed by number because it was not included in Plaintiffs’
Corrected Index and Exhibits. See Pls.’ 2d Errata to Opp’n, ECF No. [99].
24
After the reorganization, Ms. Smith’s title was changed from Retail Director to
Purchasing Manager. 20 Def.’s Stmt. ¶ 5; Pls.’ Controv. Stmt. ¶ 5. Ms. Smith contends that she
no longer had control over the MM purchasing budget and was no longer authorized to make
decisions for MM when Ms. McComas was out of the office. Pls.’ Stmt. ¶¶ 237-38 (citing Pls.’
Ex. 209 at 118, 120 ECF No. [87-11] (Smith Dep., Vol. II)).
The Court finds that a reasonable jury could conclude that the changes in the three
Plaintiffs’ positions after the June 2006 reorganization were adverse. Viewing the evidence in
the light most favorable to Plaintiff, each Plaintiff was given a less prestigious title after the
structural reorganization, from vice president or director to manager. See, e.g., Bloom v.
McHugh, 828 F. Supp. 2d 43, 57-58 (D.D.C. 2011) (holding that a manager’s refusal to change
an employee’s job title to a “more distinguished or prestigious” title after a reassignment
“plausibly suggests” an adverse action); cf. Runkle v. Gonzales, 391 F. Supp. 2d 210, 225
(D.D.C. 2005) (specifically noting that disciplinary actions that have no effect on job title among
other things do not constitute adverse actions). Each Plaintiff also presented evidence of a
change in job responsibility as a result of the reorganization, and each Plaintiff was told that he
or she no longer had decision-making authority in Ms. McComas’s absence. See generally
Pardo-Kronemann v. Donovan, 601 F.3d 599 (D.C. Cir. 2010) (holding that a reasonable juror
could conclude that a reassignment with the same title, pay, and grade, but one that Plaintiff
20
Despite combing the docket for an extended period of time, the Court is unable to
locate Ms. Smith’s Amended Answers to First Set of Interrogatories listed as Plaintiffs’ Exhibits
151, 154, and 179. While Plaintiffs rely on this document to establish that Ms. Smith’s title
changed from director to manager as a result of the June 2006 reorganization, the Court shall
accept this fact for the purposes of addressing Defendant’s Motion for Summary Judgment given
that the parties presented organizational charts listing Ms. Smith as “Purchasing Manager” after
the reorganization. See Defs.’ Ex. 16, ECF No. [70-16] (Organizational Chart); Pls.’ Ex. 148,
ECF No. [81-7] (Organizational Charts from January and June 2006). The Court notes that
Plaintiffs did file Ms. Smith’s Amended Answers to Nos. 16 and 17 of Defendant’s First Set of
Interrogatories, ECF No. [99-5], but this document does not address her title change.
25
alleged was a transfer from a legal to a nonlegal job, constituted an adverse employment action);
see also, e.g., Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007) (noting that a reassignment
with significantly different job responsibilities may constitute an adverse employment action).
Ms. Boone no longer handled human resources and no longer attended or presented at the MM
board meetings. Ms. Smith no longer controlled the MM purchasing budget. Mr. Barker alleges
that he was altogether unsure of his job responsibilities after the reorganization because he never
received a job description. Ms. Boone and Mr. Barker further contend that they were stripped of
their supervisory duties. See, e.g., Peters v. District of Columbia, 873 F. Supp. 2d 158, 206
(D.D.C. 2012) (citing Gelta v. Gray, 645 F.3d 408, 412 (D.C. Cir. 2011)) (“Even if the tangible
benefits remain the same, a transfer that involves the permanent withdrawal of an employee’s
supervisory responsibilities may amount to a demotion and an adverse employment action.”).
Taking this evidence as a whole, the Court concludes that Plaintiffs raised a genuine issue as to
whether they were demoted as a result of the reorganization.
Applying the McDonnell Douglas framework, the Court next turns to Defendant’s
proffered evidence that the alleged demotions were motivated by a legitimate, nondiscriminatory
reason. See United States ex rel. Schweizer v. Océ N.V., 677 F.3d 1228, 1240-41 (D.C. Cir.
2012). Defendant contends that the organizational changes resulting in the alleged demotions
were made with the specific intent of addressing management concerns raised by Plaintiffs in
their letters to the MM board and not in retaliation for their reports to the MM board. Def.’s
Mot. at 17 n.4.
Plaintiffs make several arguments to demonstrate that the restructuring was done in
retaliation for their reports to the board. Plaintiffs point to temporal proximity of the reports to
the board and the reorganization, the friendly relationship between Ms. Leonard who proposed
26
the restructuring and Ms. McComas, and other policy changes made around the same time to
support their argument that the alleged demotions were retaliatory acts. First, Plaintiffs note that
the alleged demotions took place three months after their reports were made to the MM board.
Pls.’ Opp’n at 38. The temporal proximity of Plaintiffs’ report to the board and the
reorganization is some indication of causation. See, e.g., Hamilton v. Geithner, 666 F.3d 1344,
1357-58 (D.C. Cir. 2012) (noting that D.C. Circuit has not adopted a bright-line “three-month”
rule that less than a three-month period between protected activity and the adverse employment
action alone is sufficient to establish causation); Woodruff v. Peters, 482 F.3d 521, 530 (D.C.
Cir. 2007) (noting that positive evidence beyond temporal proximity is required to rebut a
proffered explanation as pretext).
Second, Plaintiffs also assert that Ms. Leonard, the author of the report recommending
the restructuring, was acting in concert with Ms. McComas. Plaintiffs allege that Ms. Leonard
was friends with Ms. McComas prior to being hired as a consultant by MM. Pls.’ Stmt. ¶ 161
(citing Pls.’ Ex. 200 at 207, ECF No. [78-1] (Boone Dep., Vol. I); Pls.’ Ex. 203 at 171, ECF No.
[78-4] (Harris Dep.)). In addition, Plaintiffs point to events that they allege establish that Ms.
Leonard had knowledge of Plaintiffs’ reports to the board. Plaintiffs allege that Ms. McComas
and Ms. Leonard were present at a managers’ meeting in April 2006 where Ms. McComas
discussed the use of the debit card for personal expenditures, the board’s investigation, and
resulting changes in MM’s policies. Pls.’ Stmt. ¶ 441 (citing Pls.’ Ex. 167 at ¶ 40, ECF No. [87-
7] (Boone Declaration)). Plaintiffs assert that during another meeting with Ms. Leonard present
on May 23, 2006, Ms. McComas expressed to Plaintiffs that she was hurt that Plaintiffs reported
her to the board without directly talking to her first. Pls.’ Stmt. ¶ 341 (citing Pls.’ Ex. 204 at 50,
ECF. No [83-2] (Leonard Dep.)). Plaintiffs also allege that during that meeting, Ms. Leonard
27
pointed at Plaintiffs and stated, “If you don’t keep everything confidential that’s going on here, I
will fire your asses.” Pls.’ Stmt. ¶ 184 (citing Pls.’ Ex. 200 at 205, ECF. No. [78-1] (Boone Dep.,
Vol. I)). Finally, Plaintiffs claim that Ms. Leonard told Plaintiffs they “ganged up on [Ms.
McComas] and it’s [their] fault that the family atmosphere had to leave, . . . it was collusion . . .
.” Pls.’ Stmt. ¶ 187 (quoting Ex. 200 at 206, ECF No. [78-1] (Boone Dep., Vol. I)).
Plaintiffs also rely on statements within Ms. Leonard’s written report to demonstrate that
Ms. Leonard was influenced by Ms. McComas. Plaintiffs take issue with the fact that Ms.
McComas is the only MM employee whom the report specifically recommends should be
retained, and described her as having “done an excellent job in building the reputation of
MountainMade . . . .” Pls.’ Stmt. ¶¶ 176-78 (citing Pls.’ Ex. 34 at 5, 8, ECF No. [81-1]
(Leonard’s Report)). In contrast, the report indicates that, “[t]he majority of the problems arise
from the fact that many of the employees are young and inexperienced . . . .” Pls.’ Stmt. ¶ 181
(citing Pls.’ Ex. 34 at 4, ECF No. [81-1] (Leonard’s Report)).
Finally, Plaintiffs point to several MM policy changes that were implemented after their
reports to the board in May 2006. In May 2006, Plaintiffs’ paid one-half hour lunch break was
replaced with a one-hour unpaid lunch break. Pls.’ Stmt. ¶¶ 217, 221-22 (citing Pls.’ Ex. 200 at
193-94, 197, ECF No. [78-1] (Boone Dep., Vol. I)). Plaintiffs also were not allowed to take
lunch at the same time. Pls.’ Stmt. ¶¶ 217-18 (citing Pls.’ Ex. 200 at 193-94, ECF No. [78-1]
(Boone Dep., Vol. I)). Further, Plaintiffs were no longer allowed to work flex time and, as a
result, were required to work the set hours of 8:00 a.m. to 5:00 p.m. each day. Pls.’ Stmt. ¶ 217
(citing Pls.’ Ex. 200 at 193, ECF No. [78-1] (Boone Dep., Vol. I)). A new sign in/sign out policy
was implemented as well. Pls.’ Stmt. ¶ 220 (citing Pls.’ Ex. 200 at 279, ECF No. [78-1] (Boone
Dep, Vol. I)). Plaintiffs allege that the set work schedule and the sign in/sign out policy only
28
were enforced against them and not imposed against other employees. Pls.’ Stmt. ¶¶ 217, 220
(citing Pls.’ Ex. 200 at 193, ECF No. [78-1] (Boone Dep., Vol. I); Pls.’ Ex. 208 at 110, ECF. No
[87-11] (Smith Dep., Vol. II)). In July 2006, Plaintiffs were reimbursed for their loss due to the
change in the lunch policy and their paid lunch breaks were restored because the Personnel
Manual dictated that they were entitled to a half-hour paid lunch and flex time. Pls.’ Stmt. ¶ 223
(citing Pls.’ Ex. 200 at 195, ECF No. [78-1] (Boone Dep., Vol. I)). 21 Taken as a whole,
Plaintiffs’ evidence lends support to their argument that their job changes were done in
retaliation for their reports to the MM board.
Defendant argues that Plaintiffs have the burden of establishing that the retaliation was
the “but for” cause of their constructive termination. Def.’s Reply at 9. Defendant relies on the
Supreme Court’s decision handed down on June 24, 2013, in University of Texas Southwestern
Medical Center v. Nassar, --- U.S. ---, 133 S. Ct. 2517 (2013), in support of its argument. In
Nassar, the Supreme Court held that plaintiffs in Title VII retaliation actions must meet the but-
for, rather than the motivating-factor, standard for causation. Id. at 2532-33. Defendant also
points to one case from another court in this district that held that the Supreme Court’s reasoning
in Nassar was applicable to the FCA context and accordingly, plaintiffs bringing retaliation
claims under the FCA must establish that retaliation for plaintiffs’ protected activity was the but-
21
To the extent that Plaintiffs appear to be making this argument, the Court concludes
that the changes in MM policies do not rise to the level of being independent adverse
employment actions, particularly in light of the fact that Plaintiffs acknowledge that they were
reimbursed for the time that they were not given a paid lunch. See Glenn v. Williams, No. 98-
1278 (CKK), 2006 WL 401816 (D.D.C. Feb. 21, 2006), aff’d sub. nom. Dickens v. Dep’t of
Consumer & Regulatory Affairs, 298 Fed. App’x 2, 3 (D.C. Cir. 2008) (holding that the denial of
a flex time claim or changes to a normal work schedule generally are not adverse employment
actions if there is no change in pay or a showing of a particularly vulnerability to the change on
the part of an employee). However, the Court shall accept the implementation of the policies and
their alleged selective enforcement against Plaintiffs as some evidence of Defendant’s alleged
retaliatory animus towards Plaintiffs.
29
for cause of the adverse employment action. United States ex rel. Schweizer v. Océ N. Am., Inc.,
956 F. Supp. 2d 1, 13-14 (D.D.C. 2013).
Plaintiffs seek leave to file a surreply to address this argument as it was initially raised in
Defendant’s reply, since both Nassar and the district court opinion were handed down after the
filing of Defendant’s Motion for Summary Judgment. Given that this new argument was raised
in Defendant’s reply, the Court finds that Plaintiffs are entitled to respond to the argument.
Accordingly, Plaintiffs’ [95] Motion for Leave to File Surreply is GRANTED and the Court has
considered Plaintiffs’ Surreply Memorandum in reaching its decision. 22 See Pls.’ Surreply, ECF
No. [95-3]. In their surreply, Plaintiffs argue that the D.C. Circuit already has adopted a
motivating-factor standard to FCA retaliation claims and assert that this holding is binding on
this Court. See United States ex rel. Schweizer v. Océ N.V., 677 F.3d 1228, 1237 (D.C. Cir.
2012) (noting that the proper inquiry is whether “the employer’s adverse action against the
employee [was] ‘motivated, at least in part, by the employee’s engaging in [that] protected
activity’”).
The Court finds that it is not necessary at this phase to determine which standard is
proper because Plaintiffs’ claims related to their alleged demotions would succeed under either
the motivating-factor burden or the heightened but-for burden of causation. Here, the parties’
factual dispute centers around whether MM’s reorganization was done to address management
and leadership issues raised by Plaintiffs in their reports, or whether the reorganization was the
sham reason given to demote Plaintiffs in retaliation for their reports to the board. Viewing the
evidence in the light most favorable to Plaintiffs, Plaintiffs have presented enough evidence for a
reasonable juror to infer that but for Plaintiffs’ protected activity, they would not have been
22
The Court also considered Defendant’s [97] Memorandum in Opposition to Plaintiffs’
Motion for Leave to File Surreply, and Plaintiffs’ [98] Reply thereto.
30
allegedly demoted. Accordingly, Defendant is not entitled to summary judgment on the claims
of the alleged demotions of Ms. Boone, Mr. Barker, and Ms. Smith.
3. Demotion Claim of Plaintiff Harris
Next, Ms. Harris claims that she was demoted in retaliation for her report to the MM
board. Pls.’ Opp’n at p. 17-18. The Court notes that the majority of Plaintiff Harris’s argument
in the Statement of Material Facts related to Ms. Harris’s alleged demotion focuses on evidence
contained in two documents, Ms. Harris’s deposition transcript and a declaration signed by Ms.
Harris. After scouring the record, it appears that Plaintiff only filed the transcript from the
second day of Ms. Harris’s deposition and the second page of her declaration, neither of which
provide the majority of the cited authority for this claim. See Pls.’ Ex. 168, ECF No. [82-2]
(Harris Declaration); Pls’ Ex. 203, ECF No. [78-4] (Harris Dep., Vol. II). Accordingly, the
Court shall address material facts related to Ms. Harris’s alleged demotion that are included in
Plaintiffs’ Statement of Material Facts and that are properly cited to exhibits filed with the Court.
See, e.g., Veitch v. England, 471 F.3d 124, 133 (D.C. Cir. 2006), cert. denied sub. nom. Veitch v.
Winter, 552 U.S. 809 (2007) (“Although he is entitled as the non-moving party to the benefit of
all reasonable inferences, he cannot rely in opposing summary judgment on mere allegations in
his unsworn complaint, much less on assertions made in his brief on appeal; the court may
consider only sworn statements setting forth specific facts.”). Further, the Court shall not
consider factual assertions made in the Opposition that are not included as part of either
Plaintiffs’ Controverted Statement of Material Facts or Plaintiffs’ Statement of Material Facts.
Here, Defendant alleges that the base salary of Ms. Harris was not changed as a result of
the structural reorganization of MM in June 2006. Def.’s Stmt. ¶ 29. The Court shall accept this
fact a conceded since Plaintiff does not rebut the allegation. See Pls.’ Stmt. ¶ 27 (pointing to
31
evidence to rebut this statement of material fact as it relates to the other three Plaintiffs, but not
Plaintiff Harris). The only material facts presented by Plaintiff and related to Ms. Harris’s
alleged demotion that are properly cited to exhibits are: (1) Prior to Ms. Harris’s report to the
board, Ms. Harris was aware that Ms. McComas did not renew the contracts of two of her former
finance managers, Susan Odell and Pam Corey, both of whom pushed Ms. McComas to provide
receipts for debit card purchases, Pls.’ Stmt. ¶ 59 (citing Pls.’ Ex. 206 at 47-49, 57-58, ECF No.
[79-3] (Smith Dep., Vol. I)); and (2) Ms. McComas barred Ms. Harris from The Gallery, 23 Pls.’
Stmt. ¶ 285 (citing Pls’ Ex. 203 at 162, ECF No. [78-4] (Harris Dep., Vol. II)). All other facts
provided in Plaintiffs’ Controverted Statement of Material Facts or Plaintiffs’ Statement of
Material Facts are cited to authority not provided to the Court as exhibits.
In order to determine whether a change in position constitutes an adverse employment
action, the fact-finder must compare Ms. Harris’s position prior to her transfer and after her
transfer in order to determine if the transfer constituted an adverse employment action. Pardo-
Kronemann v. Donovan, 601 F.3d 599, 607 (D.C. Cir. 2010). Here, the record is completely
devoid of facts that a reasonable juror could rely on to compare Ms. Harris’s position both before
and after her reports to the MM board about Ms. McComas. Even viewing the evidence in the
light most favorable to Plaintiff, there is no evidence before the Court that Plaintiff actually
suffered any sort of job change. In fact, her pay remained the same both before and after her
report to the MM board. The Court finds that a reasonable juror could not conclude that Ms.
Harris suffered from an adverse employment action based on transfers of positions, solely
relying on the fact that she was barred from The Gallery, without any specific facts about how
23
The Court notes that Plaintiffs’ Statement of Material Facts indicates in one place that
Ms. Harris was barred from The Gallery and in another place that she was barred from the
Country Store. See Pls.’ Stmt. ¶¶ 285, 291.
32
this affected her ability to perform her job function, and on her knowledge that Ms. McComas
previously did not renew contracts for two former finance managers who asked for receipts from
Ms. McComas for her debit card purchases. Even construing the evidence in the light most
favorable to Ms. Harris, the Court there is no factual record upon which a reasonable jury could
conclude that Ms. Harris was demoted and, thus, subject to an adverse employment action. See
GE v. Jackson, 595 F. Supp. 2d 8, 36 (D.D.C. 2009), aff’d 610 F.3d 110 (D.C. Cir. 2010) (noting
that at summary judgment self-serving, conclusory statements are of minimal value).
Accordingly, Defendant is entitled to summary judgment on Ms. Harris’s claim related to her
alleged demotion.
4. Constructive Termination Claim of Plaintiff Boone
In addition to the alleging that she was demoted, Plaintiff Boone also asserts that she was
constructively terminated from MM. On January 2, 2007, Ms. Boone submitted a letter of
resignation, announcing her resignation effective on January 15, 2007. Def.’s Stmt. ¶ 34; Pls.’
Controv. Stmt. ¶ 32. Ms. Boone asserts that she was constructively terminated from her position
at MM because of her working conditions. Pls.’ Opp’n at 16. Defendant asserts that Ms. Boone
voluntarily resigned and accordingly, cannot establish that she was subject to an adverse
employment action. Def.’s Mot. at 18.
Generally, resignations are presumed to be voluntary. Aliotta v. Bair, 614 F.3d 556, 566
(D.C. Cir. 2010); Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006). “The test for
constructive discharge is an objective one: whether a reasonable person in the employee’s
position would have felt compelled to resign under the circumstances.” Aliotta, 614 F.3d at 566.
To establish constructive discharge based on a hostile work environment, Plaintiffs like Ms.
Boone must first establish a hostile work place by showing behavior “‘sufficiently severe or
33
pervasive to alter the conditions of [their] employment.’” Pa. State Police v. Suders, 542 U.S.
129, 133 (2004) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Ms.
Boone then must make an additional showing “that the abusive working environment became so
intolerable that her resignation qualified as a fitting response.” Id. at 134. Indeed, “the standard
for constructive discharge is quite high.” Veitch, 471 F.3d at 134. “[A constructive discharge]
does not occur when an employee leaves an unpleasant but objectively tolerable job because
alternatives have become more attractive, even if the employer’s misbehavior creates the
unpleasantness or . . . its largesse affirmatively increases the appeal of the employee’s
alternatives.” Taylor v. FDIC, 132 F.3d 753, 766 (D.C. Cir. 1997).
The Court finds that Ms. Boone has failed to present sufficient evidence for a reasonable
juror to conclude that she was constructively discharged from MM and, accordingly, Ms.
Boone’s resignation does not amount to an adverse employment action. Ms. Boone argues that
she was constructively discharged based on: (1) the alleged demotion and change in job
responsibilities; (2) the change in MM lunch, flextime, and sign in/out policies; (3) Ms.
McComas’s treatment of Ms. Boone after Ms. Boone’s report to the board; (4) Ms. Leonard’s
treatment of Ms. Boone; and (5) Mr. Kessler’s treatment of Ms. Boone.
As the Court already has found that Ms. Boone has an actionable claim for her alleged
demotion, the Court now turns to the issue of whether the title change and change in job
responsibilities coupled with Plaintiffs’ other cited evidence are sufficient for a juror to conclude
that a reasonable person in Ms. Boone’s position would have resigned. “In determining whether
a hostile work environment claim is substantiated, a court must look at all the circumstances of
the plaintiff’s employment, specifically focusing on such factors as the frequency of the
discriminatory conduct, its severity, whether it was threatening and humiliating or merely
34
offensive, and whether it unreasonably interfered with the employee’s work performance.”
Sewell v. Chao, 532 F. Supp. 2d 126, 142 (D.D.C. 2008). “As a general matter, this jurisdiction
frowns on plaintiffs who attempt to bootstrap their alleged discrete acts of retaliation into a
broader hostile work environment claim.” Baloch v. Norton, 517 F. Supp. 2d 345, 364 (D.D.C.
2007), aff’d sub. nom. Baloch v. Kempthorne, 550 F.3d 1191 (D.C. Cir. 2008). However, there
is no per se rule barring Plaintiff from claiming that the incidents surrounding her actionable
constructive demotion claim coupled with the other cited events establish a hostile work
environment claim. Mason v. Geithner, 811 F. Supp. 2d 128, 178 n.72 (D.D.C. 2011), aff’d 492
Fed. App’x 122 (D.C. Cir. 2012). Indeed, “[o]n some occasions, it may be entirely appropriate
for an incident to double as an independently actionable act and as a component-act of a hostile
work environment.” Id.In addition to the alleged demotion, change in job responsibilities, and change in MM
policies, Plaintiff Boone presents the following specific facts to support her claim that she was
constructively discharged. After their reports to the board, Ms. McComas shunned Ms. Boone
and would not talk to her. Pls.’ Stmt. ¶ 231 (citing Pls.’ Ex. 200 at 222, ECF No. [78-1] (Boone
Dep., Vol. I)). Instead, Ms. Boone was told that if she wanted to speak to Ms. McComas, she
should go through her executive assistant. Id. Ms. Boone, along with Ms. Smith, were not
invited to an MM Christmas party in December 2006. 24 Pls.’ Stmt. ¶ 230 (citing Pls.’ Ex. 200
at 241-42, ECF No. [78-1] (Boone Dep., Vol. I)).
Ms. Boone also points to acts allegedly done by Ms. Leonard. Specifically, Ms. Boone
was written up for insubordination by Ms. Leonard on June 1, 2006, after Ms. Boone did not
document a verbal warning that Ms. Boone gave to Ms. Harris. Pls.’ Stmt. ¶ 172 (citing Pls.’ Ex.
24
Plaintiffs Barker and Harris were no longer employed by MM at that time.
35
46, ECF No. [76-1] (Leonard report regarding Boone insubordination)). Further, Plaintiff alleges
that Ms. Leonard referred to her and other Plaintiffs as “boys and girls,” and that Ms. Leonard
told Ms. Boone, “I’m a Ph.D. and you’re a child, . . . you are not allowed to tell me things or talk
to me like that.” Pls.’ Stmt. ¶¶ 173, 186 (citing Pls.’ Ex. 200 at 206, 278, ECF No. [78-1]
(Boone Dep., Vol. I)). Plaintiff further asserts that Ms. Leonard belittled and humiliated Ms.
Boone in front of staff. Pls.’ Stmt. ¶ 379 (citing Pls.’ Ex. 201 at 382, ECF No. [78-2] (Boone
Dep., Vol. II)). Finally, Ms. Boone reported that when Mr. Kessler was hired, he did not speak
to her either. Pls.’ Stmt. ¶ 370 (citing Pls.’ Ex. 201 at 363, ECF No. [78-2] (Boone Dep., Vol.
II)).
Ms. Boone also alleges in her own declaration that she was: shunned; embarrassed in
front of colleagues; demoted; denied flex time; denied paid lunch breaks and the right to have
lunch with other employees of her choosing; not invited to offsite meetings; demeaned with
insulting and intimidating remarks; called out at a meeting and threatened to be fired; singled out
and asked if she had improperly used the MM debit card for personal purchases; harangued in
front of staff for making disclosures to the board; instructed to remain loyal to Ms. McComas
and MM; put down and humiliated in front of staff; had supervisory duties, important
responsibilities and titles taken away, damaging her career opportunities; not invited to employee
lunches and to Ms. McComas’s home; and terminated or forced out after her duties and
responsibilities were taken away. Pls.’ Stmt. ¶ 195 (citing Pls.’ Ex. 167 at 1-2, ECF No. [87-7]
(Boone Declaration)). To the extent that Ms. Boone in her declaration makes additional claims
such as the fact that she was not invited to offsite meetings, the Court relies on the specific
incidents laid out in Plaintiff’s Statement of Material Facts under the heading “Boone’s
36
Demotion and Materially Adverse Actions” that can be traced to and supported by the cited
exhibits. See Pls.’ Stmt. ¶¶ 196-231.
Plaintiff has failed to demonstrate that the atmosphere at MM was that of an intolerable
work environment such that the alleged conduct was sufficiently pervasive or severe to warrant
Ms. Boone’s constructive discharge claim based on a hostile work place. “‘[P]laintiff must show
far more than . . . criticisms[] and snubs or perceived slights to establish a hostile work
environment.’” Brooks v. Grundmann, 851 F. Supp. 2d 1, 7 (D.D.C. 2012) (quoting Rattigan v.
Gonzales, 503 F. Supp. 2d 56, 82 (D.D.C. 2007)). Indeed, the anti-retaliation provision of the
FCA does not impose “‘a general civility code for the American workplace.’” Id. at 6. While
there is no bright line rule for determining when component-acts should be considered
collectively, the court must make its determination on a case-by-case basis. Mason v. Geithner,
811 F. Supp. 2d 128, 178 (D.D.C. 2011). “[C]ourts must consider the extent to which the alleged
actions are related in time and type; if certain actions are so remote in time or different in kind
that a reasonable trier of fact could not find them to be part of the same work environment, then
those actions should not be considered.” Id.The incidents cited by Plaintiff span the period of time from her disclosure to the board in
March 2006 to her resignation in January 2007. See Brooks v. Grundmann, 748 F.3d 1273, 1276
(D.C. Cir. 2014) (noting that the timeline events as a whole is considered to determine the
severity and pervasiveness of the events). However, the majority of the specific events cited by
Ms. Boone appear to have occurred between March 2006 and July 2006. As previously
discussed, the changes in MM’s lunch, flex time, and signing in/out policies were implemented
in May 2006 and, in July 2006, Plaintiffs were reimbursed for their unpaid lunch breaks during
37
that period of time. Further, the reorganization that resulted in the change in Plaintiffs’ job titles
and job responsibilities occurred in June 2006.
Ms. Boone allegedly was told to communicate with Ms. McComas through her Executive
Assistant in June 2006.25 See Pls.’ Ex. 200 at 222, ECF No. [78-1] (Boone Dep., Vol. I).
Further, Ms. Boone appears to assert that Ms. McComas stopped speaking to her after her
disclosure to the board and that this continued throughout the remainder of her employment at
MM. All incidents involving Ms. Leonard, namely her statements to Ms. Boone and her write-
up of Ms. Boone alleging insubordination, appear to have occurred while Ms. Leonard was at
MM as a consultant, which roughly spanned from April 2006 to July 2006 when Mr. Kessler was
hired. The Court also notes with regard to the write-up of Ms. Boone for insubordination, Ms.
Boone does not appear to refute that she did indeed refuse to provide documentation of a verbal
warning that she gave to Ms. Harris and does not allege that the write-up had any effect on her
employment other than, perhaps, that it was placed in her personnel file. See, e.g., Runkle v.
Gonzales, 391 F. Supp. 2d 210, 225-226 (D.D.C. 2005) (holding that formal letters of
admonishment and disciplinary notices with no effect on employee’s salary, duties, benefits or
hours do no constitute adverse employment actions). Ms. Boone’s only claim related to Mr.
Kessler, who was hired in July 2006, was that he did not talk to her. The following cited events
occurred in the months leading up to Ms. Boone’s resignation, between August 2006 and January
2007: Ms. Boone was not invited to the Christmas party in December 2006; Ms. McComas and
Mr. Kessler did not talk to Ms. Boone; Ms. Boone had to sign in and out of the office; Ms.
Boone no longer could use flextime; and Ms. Boone could not each lunch with the other
25
While Plaintiffs’ Statement of Material Facts indicates that this event occurred in May
2006, Ms. Boone states that it was June 2006 in her deposition. Pls.’ Stmt. ¶ 231 (citing Pls.’ Ex.
200 at 222, ECF No. [78-1] (Boone Dep., Vol. I)).
38
Plaintiffs. Looking at these facts as a whole, including those previously discussed in relation to
Ms. Boone’s alleged demotion and the additional pleaded facts related to the constructive
discharge claim, the alleged incidents do not appear sufficiently related in time or type to
collectively support Ms. Boone’s claim of constructive discharge. While Plaintiff alleges some
ongoing conduct as noted, the only specific incident that occurred during the last five months of
Ms. Boone’s employment was that she was not invited to the Christmas party. These facts are
simply insufficient for a reasonable jury to conclude that Ms. Boone was constructively
discharged from MM.
Even if the Court were to accept that the alleged events have a sufficient “common
thread” through them to provide a coherent claim, the Court finds that Plaintiff still fails to
present evidence sufficient for a reasonable juror to conclude that Ms. Boone was forced to
resign due to a hostile work place as Ms. Boone has alleged conduct that is neither sufficiently
persuasive or severe. Mason v. Geithner, 811 F. Supp. 2d 128, 178 (D.D.C. 2011); see also
Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C. Cir. 2014). Putting aside Plaintiffs’ claims
related to the change in job title and responsibility which the Court has concluded are actionable,
“[e]ach event that [Ms. Boone] identifies as an example of abusive conduct fails to add
materially to the alleged aura of hostility.” See Brooks v. Grundmann, 748 F.3d 1273, 1276
(D.C. Cir. 2014).
In Singh v. United States House of Representatives, 300 F. Supp. 2d 48, 54-57 (D.D.C.
2004), another court in this district addressed plaintiff’s Title VII claim that she was subjected to
hostile and discriminatory treatment throughout her employment. The court held that plaintiff
who alleged that she was frozen out of important meetings, humiliated at meetings that she did
attend, yelled at and told to “shut up and sit down” by her supervisor, treated as invisible by her
39
supervisor, overlooked at staff meetings, and isolated from other staff members, failed to present
sufficient evidence for a reasonable jury to conclude that she established a hostile work
environment claim. Singh, 300 F. Supp. 2d at 54-57; see also, e.g., Peters v. District of
Columbia, 873 F. Supp. 2d 158, 206 (D.D.C. 2012) (noting that the fact that plaintiff felt
humiliated does not make plaintiff’s assignment to a temporary detail an adverse employment
action). The court further noted that plaintiff’s allegations, which centered around plaintiff’s
allegedly “hostile, patronizing, and frequently abusive” supervisor did not amount to severe and
pervasive treatment sufficient to alter the conditions of her employment. Singh, 300 F. Supp. 2d
at 54-56. Here, Plaintiff’s claim centers around the treatment of Ms. Boone by Ms. McComas,
Ms. Leonard, and Mr. Kessler. The fact that Ms. Boone was ignored and “belitted” by Ms.
McComas, Ms. Leonard, and, to a lesser extent, Mr. Kessler, and was not invited to certain
events falls short of showing the sort of behavior necessary to support a constructive discharge
claim. Indeed, Plaintiff herself seems to concede that shunning by a supervisor is not enough to
demonstrate a hostile work environment but may be considered some evidence of a hostile work
environment. See Pls.’ Opp’n at 30. To the extent that Plaintiff seems to rely on her own
feelings that she was humiliated and insulted as listed in her declaration, the Court notes that
while Plaintiff’s own feelings are relevant to whether Plaintiff found the environment at MM
hostile, the purported effects of the actions are just one factor to take into account when
determining whether the environment was objectively hostile. Ragsdale v. Holder, 668 F. Supp.
2d 7, 28 (D.D.C. 2009) (noting that “unsubstantiated allegations of emotional distress,
humiliation, anxiety, depression, physical illness” without more evidence are insufficient to
support a hostile and abusive work environment). Here, the Court finds insufficient evidence for
a reasonable jury to conclude that the alleged conduct was sufficiently pervasive and severe to
40
demonstrate that it was objectively hostile based on the cited incidents. Accordingly, the
Defendant is entitled to summary judgment on the claim that Ms. Boone was constructively
discharged from MM.
5. Constructive Termination Claim of Plaintiff Harris
The next issue before the Court is whether Plaintiff Harris has pled sufficient facts to
demonstrate that she may have been subjected to an adverse employment action when she
stopped working at MM and became a full-time student. Ms. Harris asserts that she was
constructively discharged when Defendant would not accommodate her school schedule.
Plaintiff’s statement of relevant facts follows. Ms. Harris planned to return to school in the Fall
of 2006. Prior to the report to the board, she was told by Ms. McComas that MM would work
around her schedule so that Ms. Harris could work part-time while attending school. Pls.’ Stmt.
¶ 325 (citing Ex. 203 at 172, ECF No. [78-4] (Harris Dep., Vol. II)). After she gave the report to
the board, Ms. Harris received her class schedule and provided it to Mr. Kessler who told her that
MM would work around her schedule. Pls.’ Stmt. ¶ 326 (citing Ex. 203 at 172-73, ECF No. [78-
4] (Harris Dep., Vol. II)). Mr. Kessler then went to speak to Ms. McComas and later that day, he
told Ms. Harris that there was no way that MM could accommodate Ms. Harris’s school schedule
and that she would have to work the hours assigned to her. Pls.’ Stmt. ¶ 327 (citing Ex. 203 at
173, ECF No. [78-4] (Harris Dep., Vol. II)). In the Fall of 2006, Ms. Harris stopped working at
MM because she became a full-time student and MM would not accommodate her schedule.
Def.’s Stmt. ¶ 33; Pls.’ Controv. Stmt. ¶ 31.
The standard for judging harm relies on the reactions of a reasonable employee. An
objective standard is employed because “the significance of any given act of retaliation will often
depend upon the particular circumstances.” Burlington Northern & Santa Fe Ry. v. White, 548
41
U.S. 53, 69 (2006); see also Hunter v. D.C. Child & Family Servs. Agency, 710 F. Supp. 2d 152,
160 (D.D.C. 2010), aff’d No. 13-7003, 2013 WL 5610262 (D.C. Cir. Sept. 27, 2013) (noting that
“whether an alleged adverse action produces any actual objectively tangible harm, . . . depends
on the circumstances of the case”). The Seventh Circuit has held that changes in schedule not
affecting pay or opportunities for promotion generally are not actionable. However, the Seventh
Circuit has recognized an exception where, “employer exploits a known vulnerability of an
employee . . . [such that] a change in assignments, like an altered work schedule, conceivably
might amount to an adverse employment action.” Jones v. Nat’l Council of YMCA of the United
States, No. 09 C 06437, 2014 WL 2781579, at *39 (N.D. Ill. June 18, 2014) (quoting Vance v.
Ball State Univ., 646 F.3d 461, 474 (7th Cir. 2011)). For example, “[a] schedule change in an
employee’s work schedule may make little difference to many workers, but may matter
enormously to a young mother with school age children.” Burlington Northern, 548 U.S. at 69.
The Court finds this approach instructive in the instant matter.
The Court finds that Plaintiff has pled sufficient facts to demonstrate that MM’s failure to
accommodate Ms. Harris’s school schedule, ultimately resulting in the end of her employment at
MM, may have been an adverse employment action. Viewing the evidence in the light most
favorable to Plaintiff prior to the report to the board, Ms. Harris was told by Ms. McComas that
she could continue to work at MM while attending school and that MM would adjust her part-
time schedule so that she could attend class which Ms. Harris relied on. Ms. Harris enrolled in
classes. After her report to the board, she presented her schedule to Mr. Kessler, only to be told
that MM would not accommodate her school schedule after he spoke to Ms. McComas. At this
point, she was faced with the decision to either attend school as planned or continue to work at
MM. Plaintiff’s version of facts also demonstrates the requisite showing of causation. Ms.
42
Harris first was told by Mr. Kessler that MM would accommodate her schedule, but only after
Mr. Kessler consulted Ms. McComas was Ms. Harris told that MM would not schedule her work
hours around her school schedule. Defendant’s proffered legitimate, nondiscriminatory reason to
end Ms. Harris’s employment is that “Ms. Harris could not continue working her regular hours
when she became a full-time student, and therefore resigned.” Def.’s Reply at 6. Defendant
presents no evidence that MM was unable to accommodate Ms. Harris’s continued employment
in light of her school schedule. The Court finds that a reasonable jury could infer that Ms. Harris
was constructively discharged from MM in retaliation for her report to the board based on all of
the evidence presented. See Quiroz v. Hartgrove Hosp., No. 97 C 6515, 1999 WL 281343 (N.D.
Ill. Mar. 25, 1999) (denying summary judgment when plaintiff alleged that her employer moved
her shift to accommodate her school schedule and refused to move her shift back after classes
were finished which was the arrangement that she anticipated); but see Long v. First Union
Corp., 894 F. Supp. 933 (E.D. Va. 1995), aff’d 86 F.3d 1151 (4th Cir. Va. 1996) (holding that
while there was sufficient evidence to conclude that plaintiff quit after her employer would not
accommodate her school schedule, plaintiff could have remained in her position and worked the
hours already assigned to her, and did not establish causation between the refusal to change her
schedule and her discrimination claims). The Court further finds that a reasonable jury could
conclude that retaliation was the but-for cause of Ms. Harris’s constructive discharge.
Accordingly, Defendant is not entitled to summary judgment on Ms. Harris’s constructive
discharge claim.
6. Termination Claim of Plaintiff Barker
The next issue before the Court is whether Plaintiff Barker has an actionable claim
related to his termination from MM. It is undisputed by the parties that Mr. Barker was
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terminated from his employment at MM on August 10, 2006. Def.’s Stmt. ¶ 30; Pls.’ Stmt. ¶
302. Plaintiff Barker presents the following account of the events leading up to his termination.
On August 9, 2006, MM experienced an issue with its e-mail server. Pls.’ Stmt. ¶ 306 (citing
Pls.’ Ex. 202 at 147, ECF No. [78-3] (Barker Dep.)). Mr. Barker went to the e-mail console that
controlled the e-mail system, and determined that the safeguard had been turned off. Pls.’ Stmt.
¶ 307 (citing Pls.’ Ex. 202 at 147, ECF No. [78-3] (Barker Dep.)). He was unable to fix the
problem and reported it to Mr. Kessler. Pls.’ Stmt. ¶ 308 (citing Pls.’ Ex. 202 at 148, ECF No.
[78-3] (Barker Dep.)). Mr. Barker inquired if Byron Sayres, an IT employee of CVI which was
another business in the same building as MM, had accessed the e-mail server. Mr. Kessler told
Mr. Barker that there would be no reason for Mr. Sayres to access the server. Pls.’ Stmt. ¶¶ 309-
12 (citing Pls.’ Ex. 202 at 146, 148, ECF No. [78-3] (Barker Dep.)). Mr. Barker then went to
CVI and directly confirmed with Mr. Sayres that he had not accessed the e-mail server. Pls.’
Stmt. ¶ 310 (citing Pls.’ Ex. 202 at 148, ECF No. [78-3] (Barker Dep.)).
When Mr. Barker returned to MM, he was told that the website was down. Pls.’ Stmt. ¶
311 (citing Pls.’ Ex. 202 at 148, ECF No. [78-3] (Barker Dep.)). After investigating, Mr. Barker
determined that the website server had been remotely logged into by Mr. Sayres at an IP address
assigned to CVI. Pls.’ Stmt. ¶ 313 (citing Pls.’ Ex. 202 at 150, ECF No. [78-3] (Barker Dep.)).
Mr. Barker then went back to CVI and spoke with Lois, who was CVI’s Operations Manager.26
Pls.’ Stmt. ¶¶ 313-15 (citing Pls.’ Ex. 202 at 150, ECF No. [78-3] (Barker Dep.)). Mr. Barker
explained to Lois what happened and asked Lois if he could trust Mr. Sayres’s supervisor to help
him determine why someone at CVI had accessed the MM server. Id. Lois, in turn, showed Mr.
Barker a proposed contract between CVI and MM, whereby MM would outsource its IT services
26
The Court notes that it is unable to locate Lois’s last name in any of the submitted
documents.
44
to CVI, meaning specifically to Mr. Sayres and his supervisor. Pls.’ Stmt. ¶ 316 (citing Pls.’ Ex.
202 at 153, ECF No. [78-3] (Barker Dep.)). The next morning, Mr. Barker presented Mr.
Kessler with his evidence that Mr. Sayres had logged into and crashed the MM server. Pls.’
Stmt. ¶ 320 (citing Pls.’ Ex. 202 at 154, ECF No. [78-3] (Barker Dep.)). Mr. Kessler then told
Mr. Barker that he was meeting with Mr. Sayres and would distract him so that Mr. Barker could
continue his investigation. Pls.’ Stmt. at p. 47 (citing Ex. 202 at 155, ECF No. [78-3] (Barker
Dep.)). When Mr. Kessler returned, he told Mr. Barker that he understood that Mr. Barker had
implicated Mr. Sayres and his supervisor in a conspiracy. Pls.’ Stmt. ¶¶ 321-22 (citing Pls.’ Ex.
202 at 155, ECF No. [78-3] (Barker Dep.)). Mr. Kessler asked Mr. Barker if he trusted him and
Mr. Barker indicated that he did not have reason to trust him because he had not given him a job
description since he started working at MM. Pls.’ Stmt. ¶ 323 (citing Pls.’ Ex. 202 at 159, ECF
No. [78-3] (Barker Dep.)). Mr. Kessler fired Mr. Barker at the end of that work day. Pls.’ Stmt.
¶¶ 302, 323-24 (citing Pls.’ Ex. 202 at 159, ECF No. [78-3] (Barker Dep.)).
Defendant presents a slightly different version of the facts. Defendant asserts that Mr.
Barker accused Mr. Kessler, along with Mr. Sayres, of being involved in a conspiracy to crash
the computer server during his conversation with Lois, and when Mr. Kessler confronted Mr.
Barker with this information, Mr. Barker admitted making the accusation. Def.’s Stmt. ¶ 30.
Defendant offers as its legitimate, nondiscriminatory reason that Mr. Barker was terminated for
gross misconduct as a result of this incident. Def.’s Stmt. ¶ 31. Defendant further alleges that at
the time that Mr. Kessler made the decision to terminate Mr. Barker’s employment, he had no
knowledge that Mr. Barker had made reports to the board about Ms. McComas. Def.’s Stmt. ¶
31-32. Plaintiffs simply counter that “Barker was fired under pretext . . . He was fired for doing
his job, and doing it well.” Pls.’ Opp’n at p. 17.
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Given that it is undisputed that Mr. Barker was subject to an adverse employment action
when his employment at MM was terminated, the Court turns directly to the issue of causation.
The fact that Mr. Barker’s employment was terminated five months after he reported Ms.
McComas to the board and less than two months after he was allegedly demoted is some
evidence of retaliation. However, Plaintiff must present additional evidence in order to rebut
Defendant’s proffered explanation as pretext. Woodruff v. Peters, 482 F.3d 521, 530 (D.C. Cir.
2007). Plaintiff appears to allege that at least Mr. Kessler and Mr. Sayres conspired to have Mr.
Barker fired. Additionally, Plaintiff indicates that this conspiracy was motivated by Mr. Barker’s
reports to the board.
Other courts have found plaintiff’s mere claim that a conspiracy is at play is insufficient
to rebut a proffered legitimate, nondiscriminatory reason for the adverse employment action. See
Clemente v. Vaslo, No. 09-13854, 2010 WL 4636250, at *7 (E.D. Mich. Nov. 5, 2010), aff’d 679
F.3d 482 (6th Cir. 2012) (noting that plaintiffs offered only a conspiracy theory in opposition to
defendant’s stated reason for their terminations when plaintiffs, employees of the Water
Division, allegedly were terminated after an internal investigation revealed that they had
tampered with their water meters to decrease their registered water usage); Cole v. N.Y. State
Dep't of Corr. Servs., Case No. 97-CV-0477E, 2002 WL 31017418, at *7 (W.D.N.Y. Aug. 7,
2002), aff’d sub. nom. Cole v. United Church of Christ & Assocs., 78 Fed. App’x 754 (2d Cir.
2003) (holding that plaintiff failed to rebut the proffered reason that he was terminated for an
error in judgment that could have resulted in the death of a patient by offering “conclusory
allegations, without any evidentiary support, that [his employer’s] asserted non-discriminatory
reasons are all untrue and were fabricated as part of a conspiracy to harass him and ‘trump’ a
paper trail to justify his termination”); but see Branch v. Guilderland Cent. Sch. Dist., 239 F.
46Supp. 2d 242, 246 (N.D.N.Y 2002) (holding that plaintiff presented sufficient evidence to
establish causation in a retaliation claim against his supervisor when one of two employees who
had filed a sexual harassment claim against him recanted and alleged that the filing of the claim
was his supervisor’s idea). For example, in Alexander v. Biomerieuz, 270 Fed. App’x 422 (7th
Cir. 2008), plaintiff was fired after allegedly being overheard by coworkers threatening to bring a
gun to work. The plaintiff argued that the employees fabricated the story about the gun, and that
she actually was terminated for complaining about race discrimination. Id. at 425-26. The
Seventh Circuit explained, “[c]ircumstantial evidence requires a long ‘chain of inferences,’ and it
is only ‘if each link is solid’ that it suffices to create a genuine issue of fact for trial.” Id. at 428(quoting Sylvester v. SOS Children’s Villages Ill., Inc., 453 F.3d 900, 903 (7th Cir. 2006)). The
Alexander court ultimately held that plaintiff had failed to establish the causal link between her
termination and the race discrimination complaint because her argument would require a jury to
believe that at least eight employees lied about the gun threat. Id. at 426.
Here, Plaintiff has failed to establish the necessary links in the chain of inferences in
order to establish a causal connection between his report to the MM board and his termination.
The Court first notes that in in order for a reasonable juror to accept Mr. Barker’s retaliation
theory, he or she would have to believe that at least Mr. Kessler and Mr. Sayres, an employee at
a different company, conspired to crash the MM servers in order to create a justification for Mr.
Barker to be fired. A reasonable juror further would have to accept that Mr. Kessler, who at the
time had been an MM employee for one month and was hired over three months after Plaintiff’s
report to the MM board, either set this plan in motion or was complicit in a plan to terminate Mr.
Barker because Mr. Barker reported Ms. McComas to the MM board.
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Most importantly, Plaintiff in no way rebuts with either direct or circumstantial evidence
Mr. Kessler’s statement that he had no knowledge that Mr. Barker was one of the employees
who reported Ms. McComas to the board. Indeed, Plaintiff has only offered that Mr. Kessler,
who had been on the job for a short time when he made the decision to fire Mr. Barker, had not
met with Mr. Barker as he had done with other employees and had not given him a job
description. This simply is insufficient for a reasonable jury to infer either that Mr. Kessler had a
retaliatory animus towards Mr. Barker in any way or even that Mr. Kessler was aware of Mr.
Barker’s report to the board. See Halasa v. ITT Educ. Servs., 690 F.3d 844, 848 (7th Cir. 2012)
(holding that plaintiff failed to establish that his protected conduct was connected to the decision
to fire him when plaintiff did not present any evidence that the persons who made the
termination decision knew of the protected conduct); McGowan v. Billington, 281 F. Supp. 2d
238, 249 (D.D.C. 2003) (noting that plaintiff’s claim failed because plaintiff offered no evidence
of motive when claiming that one person on a hiring panel acted on behalf of the management
which had the alleged retaliatory animus, in not selecting plaintiff for a position). Nor does
Plaintiff Barker present any evidence that it was actually Ms. McComas, rather than Mr. Kessler
who made the decision to terminate Mr. Barker. Indeed, the only evidence presented that might
give some inference of Mr. Kessler’s motivation to terminate Mr. Barker is the draft contract
between MM and CVI. Here, even construing the facts in the light most favorable to Plaintiff,
Plaintiff at the very best has established that Mr. Kessler and Ms. Sayres conspired to terminate
Mr. Barker’s employment so that MM could contract its IT work to Mr. Sayres and CVI.
Accordingly, Plaintiff’s claim fails and the Court finds that Defendant is entitled to summary
judgment on Mr. Barker’s claim related to his termination.
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7. Termination Claim of Plaintiff Smith
The Court next turns to the issue of the termination of Ms. Smith. It is undisputed by the
parties that Ms. Smith along with three other employees, none of whom made reports about Ms.
McComas to the MM board, were terminated from employment at MM on January 5, 2007.
Def.’s Stmt. ¶¶ 35-36; Pls.’ Controv. Stmt. ¶¶ 33-34. Ms. Smith alleges that her employment
was terminated in retaliation for her reports to the board. Pls. Controv. Stmt. ¶ 33 (citing Pls.’
Ex. 166 at 3, ECF No. [87-6] (Smith Declaration)). Defendant asserts that Ms. Smith’s
termination was motivated by a legitimate, nondiscriminatory reason. Specifically, Defendant
argues that Ms. Smith and the other employees were terminated “in an effort to sustain [MM’s]
viability in light of financial problems it was facing.” Def.’s Stmt. ¶ 35 (quoting Def.’s Ex. 22,
ECF No. [70-22] (Note from Kessler re: Smith Termination)). Plaintiff attempts to demonstrate
that this proffered reason is pretextual, by pointing to a declaration completed by Ms. Smith that
states: “I was terminated because of my whistleblowing activities by McComas in retaliation for
my efforts regarding her fraud. She made the decision, according to Kessler. Money was not an
issue in my case.” Pls.’ Controv. Stmt. ¶ 33 (quoting Pls.’ Ex. 166 at 3, ECF. No [87-6] (Smith
Declaration)). When Ms. Smith was told by Mr. Kessler that she was being terminated from
employment, Ms. Smith asked Mr. Kessler for a reason. Mr. Kessler stated, “This is out of my
hands. I’m sorry . . . .” Pls. Stmt. ¶ 254 (quoting Pls.’ Ex. 208 at 139, ECF No. [79-3] (Smith
Dep., Vol. I)).
Even when viewing the evidence presented in the light most favorable to Plaintiff, the
record is devoid of any evidence on which a reasonable jury could rely to establish that Ms.
Smith’s termination was related to her report to the MM board. Indeed, “a non-movant’s
allegations that are ‘generalized, conclusory and uncorroborated by any evidence other than the
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[non-movant’s] own deposition testimony’ are ‘insufficient to establish a triable issue of fact’—
at least where the nature of the purported factual dispute reasonably suggests that corroborating
evidence should be available.” Brooks v. Kerry, No. 10-0646(BAH), 2014 WL 1285948, at *8
(D.D.C. Mar. 31, 2014) (citing Akridge v. Gallaudet Univ., 729 F. Supp. 2d 172, 183 (D.D.C.
2010)). Plaintiff has cited no evidence demonstrating that Defendant’s proffered justification for
terminating Ms. Smith’s employment, namely that the four employees were laid off due to
financial problems, was a pretext for Defendant’s retaliatory motive. Ms. Smith’s own statement
in a written declaration that her employment was not terminated due to financial concerns
without any supporting evidence is insufficient to establish a genuine issue of material fact.27
See, e.g., Piroty v. Chairman, Broad. Bd. of Governors, 815 F. Supp. 2d 95, 99 (D.D.C. 2011),
aff’d No. 11-5292, 2012 WL 1155732 (D.C. Cir. Mar. 7, 2012) (“Such subjective beliefs, of
course, are insufficient to create a genuine issue of material fact.”); see also GE v. Jackson, 595
F. Supp. 2d 8, 36 (D.D.C. 2009), aff’d 610 F.3d 110 (D.C. Cir. 2010) (noting that self-serving
and uncorroborated declaration is of little value at the summary judgment stage). Nor is Mr.
Kessler’s ambiguous statement that the decision to lay off Ms. Smith was “out of his hands,”
enough to demonstrate that a reasonable jury could conclude that Ms. Smith was terminated in
retaliation for her report to the board. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986) (“The mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff.”). Significantly, Plaintiff does not point to any evidence either in the opposition or in
27
Fed. R. Civ. P. 56(c)(4) requires that a “declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the matters stated.” The Court notes
that Ms. Smith’s declaration provides no factual support for her statement that her termination
was not financially motivated nor demonstrates that she had any personal knowledge of MM’s
financial situation in January 2007.
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the Statement of Material Facts to argue that MM was financially stable at the time that Ms.
Smith was laid off in January 2007. Additionally, the fact that three employees who did not
make reports to the board were laid off at the same time as Ms. Smith lends support to
Defendant’s assertion that the terminations were financially driven, and is not addressed by
Plaintiff in either the opposition or Statement of Material Facts. Accordingly, the Court
concludes that Plaintiff Smith has failed to demonstrate a genuine issue of material fact related to
the causal link between her report to the board and her termination 10 months later. Defendant is
entitled to summary judgment on Ms. Smith’s termination claim.
C. Wrongful Discharge under State Law
Plaintiffs also allege that they were wrongfully discharged from MM in violation of
public policy under West Virginia law. Plaintiffs Barker and Smith rest their claims upon the
termination of their employment by MM, and Plaintiffs Boone and Harris rest their claims on the
constructive discharge theory. West Virginia adopts a four-part test to establish a claim for
wrongful discharge in contravention of substantial public policy:
(1) [Whether a] clear public policy existed and was manifested in a state or
federal constitution, statute or administrative regulation, or in the common law
(the clarity element).
(2) [Whether] dismissing employees under circumstances like those involved in
the plaintiff’s dismissal would jeopardize the public policy (the jeopardy
element).
(3) [Whether t]he plaintiff’s dismissal was motivated by conduct related to the
public policy (the causation element).
(4) [Whether t]he employer lacked overriding legitimate business justification for
the dismissal (the overriding justification element).
Swears v. R.M. Roach & Sons, Inc., 696 S.E.2d 1, 6 (W. Va. 2010) (quoting Feliciano v. 7-
Eleven, Inc., 559 S.E.2d 713, 723 (W. Va. 2001)). For a retaliatory discharge claim, courts
generally must rely on a public policy articulated by the legislature and are to “‘proceed
cautiously if called upon to declare public policy absent some prior legislative or judicial
51
expression on the subject.’” Id. at 7 (quoting Tiernan v. Charleston Area Med. Ctr., Inc., 506
S.E.2d 578, 584 (W. Va. 1998)).
Here, Plaintiffs’ state law claims are based on Defendant’s alleged violation of the False
Claims Act. See 2d Amend. Compl. at 21-22; Pls.’ Opp’n at 43 (“Each prong of the claim is
satisfied under the proof set out above regarding the FCA.”). Plaintiffs may rest their claims for
wrongful discharge on a constructive discharge theory under West Virginia law. Similar to
under the FCA, “‘[i]n order to prove a constructive discharge [under West Virginia law], a
plaintiff must establish that working conditions created by or known to the employer were so
intolerable that a reasonable person would be compelled to quit. It is not necessary, however, that
a plaintiff prove that the employer’s actions were taken with a specific intent to cause the
plaintiff to quit.’” Travis v. Alcon Labs., Inc., 504 S.E.2d 419 n.2, 422 (W. Va. 1998) (quoting
Slack v. Kanawha County Housing and Redevelopment Auth., 423 S.E.2d 547 (W. Va. 1992)).
Here, the Court already has determined that both Plaintiff Smith and Plaintiff Barker
failed to establish the causal link between their terminations from employment at MM and their
participation in protected activity. Accordingly, as with their retaliation claims under the FCA,
Ms. Smith’s and Mr. Barker’s claims for wrongful discharge in violation of public policy under
West Virginia law fail. Similarly, the Court has concluded that Plaintiff Boone has failed to
establish that she was constructively discharged from MM. Given this finding, the Court also
concludes that Defendant is entitled to summary judgment on Ms. Boone’s state law claim.
Finally, the Court held that Ms. Harris presented a genuine dispute of material facts such that a
reasonable jury could conclude that she was constructively discharged from MM as a result of
her report to the MM board. As a result, Defendant is not entitled to summary judgment on Ms.
Harris’s claim for wrongful discharge in violation of public policy under West Virginia law.
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Defendant is entitled to summary judgment on the state law claims related to Ms. Boone, Mr.
Barker, and Ms. Harris.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Defendant’s [70] Motion for Summary Judgment and GRANTS Plaintiffs’ [95] Motion to File
Surreply to Defendant’s Reply Brief. Specifically, the Court GRANTS Defendant’s motion with
respect to: (1) Plaintiff Harris’s claim under the FCA related to her alleged demotion; (2)
Plaintiff Boone’s claim under the FCA related to her alleged constructive discharge; (3) Plaintiff
Barker’s claim under the FCA related to his termination; (4) Plaintiff Smith’s claim under the
FCA related to her termination; and (5) Plaintiffs Boone’s, Barker’s, and Smith’s claims for
wrongful discharge in violation of public policy under West Virginia law. In all other respects,
Defendant’s motion is DENIED.
In conclusion, the Court DENIES summary judgment as to Plaintiff Boone’s alleged
demotion under the FCA, but GRANTS summary judgment as to Plaintiff Boone’s alleged
constructive discharge under both the FCA and state law. The Court DENIES summary
judgment as to Plaintiff Barker’s alleged demotion under the FCA, but GRANTS summary
judgment as to Plaintiff Barker’s termination from employment under the FCA and state law.
Similarly, the Court DENIES summary judgment as to Plaintiff Smith’s alleged demotion under
the FCA, but GRANTS summary judgment as to Plaintiff Smith’s termination from employment
under the FCA and state law. Finally, the Court DENIES summary judgment as to Plaintiff
Harris’s alleged constructive discharge under both the FCA and state law, but GRANTS
summary judgment as to Plaintiff Harris’s alleged demotion under the FCA. Accordingly, the
Plaintiffs’ claims related to the alleged demotions of Plaintiffs Boone, Barker, and Smith under
the FCA as well as the alleged constructive discharge of Plaintiff Harris under both the FCA and
53
state law survive Defendant’s Motion for Summary Judgment. An appropriate Order
accompanies this Memorandum Opinion.
Dated: August 20, 2014
__ /s/______________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
54