Mattes v. Johns Hopkins

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WILLIAM W. MATTES, JR.,
Plaintiff-Appellant,
v.
No. 97-1871
JOHNS HOPKINS UNIVERSITY, Applied
Physics Laboratory,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-96-2977-CCB)
Submitted: March 24, 1998
Decided: April 7, 1998
Before WILKINSON, Chief Judge, and BUTZNER and HALL,
Senior Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Antonios A. Heper, Baltimore, Maryland, for Appellant. Andrew Jan-
quitto, MUDD, HARRISON & BURCH, Towson, Maryland, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
William W. Mattes appeals the district court's memorandum and
order granting summary judgment to his former employer and dis-
missing his civil complaint in which he alleged wrongful discharge
and related claims. Finding no error, we affirm.
In October 1995, Mattes commenced an action in a Maryland state
court charging his prior employer, Johns Hopkins University Applied
Physics Laboratory ("JHU APL"), with wrongful discharge, defama-
tion, breach of contract and negligence. An amended complaint filed
in September 1996 added a claim that he was discharged in violation
of 18 U.S.C. § 1031(h) (1994), a federal whistle blower statute. The
Appellee removed the case to federal court under 28 U.S.C. § 1446
(1994).
The gravamen of Mattes's complaint concerns his discharge from
employment due to a reduction in force. Mattes contends he was dis-
charged because he raised concerns regarding proper compliance with
a federal government contract. JHU APL is a laboratory performing
research and development primarily for the federal government,
including the design and fabrication of satellites for NASA. Mattes
was hired by JHU APL as an engineer in May 1990. Mattes signed
a form acknowledging that he was an at-will employee whose
employment could be terminated for any reason.
In 1992, Mattes was promoted to the position of section supervisor.
In 1993, Mattes discovered what he perceived to be irregularities in
the procedures to create samplings of coatings of flight hardware that
would be incorporated into a satellite. Mattes brought his concerns to
his immediate supervisor, Joe Abita. Abita established a process
action team, headed by Mattes, to investigate the charge. After inves-
tigation, the team determined that the procedures were not irregular.
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Mattes's section inspected flight designated hardware. He rejected
a number of items for lack of conformity with the required specifica-
tions. Mattes believed other employees were concerned he was too
strict with inspections and caused a backlog.
In early 1995, JHU APL decided to reduce its work force due to
declining revenues. Department heads were asked to use specific
criteria in determining who should be discharged. Abita submitted a
list of four individuals he believed were potential candidates for dis-
charge. Mattes was not on the list. Abita's supervisor, Harry Charles,
told Abita that two of the candidates did not meet the criteria and sug-
gested adding Mattes's name to the list. Abita did not agree with that
suggestion, but after discussion with Charles, did as he was directed.
Mattes was discharged in June 1995 as part of the reduction in force.
Shortly thereafter, Mattes commenced this lawsuit.
The district court made several findings in granting summary judg-
ment to JHU APL. The court found that: (1) Mattes failed to articulate
a public policy violated by his discharge; (2) his acts were not in fur-
therance of a prosecution, and thus he could not have the benefit of
the federal whistle blower statute; (3) the defamation claim was
untimely and without specification; (4) Mattes was an at-will
employee and could not show a breach of contract or the violation of
an implied breach of contract; and (5) Mattes failed to identify a duty
breached by JHU APL to support his negligence claim.
We review a district court grant of a motion for summary judgment
de novo. See Nguyen v. CNA Corp., 44 F.3d 234, 236-37 (4th Cir.
1995). A summary judgment motion should only be granted if there
is no genuine dispute as to an issue of material fact and the moving
party is entitled to judgment as a matter of law. Id. (citing Fed. R.
Civ. P. 56(c); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248
(1986)). The district court must evaluate the evidence in the light
most favorable to the non-moving party and draw all reasonable infer-
ences from the facts in that party's favor. See United States v. Die-
bold, Inc., 369 U.S. 654, 655 (1962).
Initially, we note that Mattes's appellate brief includes numerous
references to attachments and evidence Mattes submitted to the dis-
trict court in a post-judgment motion under Fed. R. Civ. P. 59. Our
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review, however, is limited to the record before the court at the time
it disposed of the summary judgment motion. See Berry v. Atlantic
Coast Line R. Co., 273 F.2d 572, 582 (4th Cir. 1960). Mattes's notice
of appeal was not effective as an appeal from the district court's
denial of the Rule 59 motion. The court's order granting summary
judgment was entered on May 30, 1997. Mattes filed his Rule 59
motion on June 9, 1997. He filed a notice of appeal on June 30, 1997.
The court disposed of his Rule 59 motion on July 7, 1997. Mattes did
not amend his previously filed notice of appeal or file a new notice
of appeal. Appellate review of an order disposing of a Rule 59 motion
requires the appellant to amend a previously filed notice of appeal.
See Fed. R. App. P. 4(a)(4). Thus, our review of this appeal does not
include evidence submitted in support of his Rule 59 motion unless
the evidence was before the court when it granted summary judgment
to the Appellee.
On appeal, Mattes contends that he was discharged because he
refused to support and participate in illegal activities. Under Maryland
law, an at-will employee may be terminated at any time for any rea-
son, except under narrow circumstances; i.e. when the termination
contravenes a clear mandate of public policy. See Bagwell v. Penin-
sula Reg'l Med. Ctr., 665 A.2d 297, 309 (Md. App. 1995). The
employee has the burden of articulating the public policy with clarity,
specificity, and authority. Id. at 309-10. Discharging an employee due
to the employee's refusal to act in an unlawful manner would violate
public policy. See Adler v. American Standard Corp., 432 A.2d 464,
470-71 (Md. 1981).
Mattes's contention is merely conclusory. There is no evidence that
any of his supervisors attempted to coerce him into engaging in any
illegal activity or preparing fraudulent documents. Nor is there any
evidence that JHU APL violated a contract with the government.
Likewise, Mattes's claim under 18 U.S.C. § 1031(h) is without
merit. Under § 1301(h):
Any individual who --
(1) is discharged . . . by an employer because of
the lawful acts done by the employee on behalf of
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the employee or others in furtherance of a prosecu-
tion under this section* (including investigation
for, initiation of, testimony for, or assistance in
such prosecution), and
(2) was not a participant in the unlawful activity
that is the subject of said prosecution, may, in a
civil action, obtain all relief necessary to make
such individual whole. . . .
Mattes concedes that he never contacted anyone, except his supervi-
sor concerning his allegations. Section 1031(h) requires the protected
conduct be in furtherance of a prosecution. Mattes never reported any
of the alleged misconduct to any federal agency and never provided
any assistance in furtherance of a prosecution. See Zahodnick v. Inter-
national Bus. Machs., ___ F.3d ___, 1997 WL 782936 (4th Cir. Dec.
22, 1997) (No. 96-2663). Equally unavailing is Mattes's argument
that he should be afforded the protection of this act as an "anticipated
whistle blower." There is no support for that contention.
In a response to an interrogatory, Mattes offered three statements
which were the basis for his defamation claim. All three statements
were allegedly communicated on July 22, 1994. Mattes commenced
the lawsuit in October 1995. The statute of limitations for defamation
in Maryland is one year. See Md. Cts. & Jud. Proc. Code Ann. § 5-
105 (1995). Thus, this cause of action is clearly barred by the statute
of limitations.
Mattes concedes as much in his appellate brief; however, he con-
tends there were other defamatory statements communicated within
one year of commencement of the lawsuit. Yet he failed to establish
when those statements were made, their content, who made them, or
who heard them. Accordingly, we find the court properly granted
summary judgment on this claim.
We also find the court properly granted summary judgment on
Mattes's breach of contract claim. Mattes relies on a 1983 document
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*18 U.S.C. § 1031 criminalizes, among other things, fraud perpetrated
on the government by a contractor or subcontractor.
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titled Professional Staff Performance Appraisal Instructions
("PSRAI") to support his breach of contract claim. He contends this
document established the criteria under which employees would be
discharged pursuant to the reduction in force. He further contends that
he relied on this document to his detriment. It is uncontroverted, how-
ever, that Mattes understood his employment could be terminated at
any time for any reason. The PSRAI did not limit JHU APL's discre-
tion to discharge Mattes or set forth procedures that should have pre-
ceded his discharge. See Hrehorovich v. Harbor Hosp. Ctr. Inc., 614
A.2d 1021, 1031 (Md. App. 1992) (stating criteria for an implied
employment contract). Nor did the document contain an express com-
mitment to adhere to a specific policy during a reduction in force. See
MacGill v. Blue Cross of Md., Inc., 551 A.2d 501, 503-04 (Md. App.
1989).
Finally, with regard to the negligence claim, Mattes refers to JHU
APL's alleged duty to evaluate his qualifications and to discharge in
accordance with procedures, but he does not specifically contest the
court's dismissal of his negligence claim. Moreover, he concludes his
brief by stating "[t]here are disputes which address all but the negli-
gence count of the Complaint [which] are sufficiently substantial to
affect the outcome of the case." Because Mattes does not take issue
with the court's decision on the negligence claim by citing reasons,
authorities, or statutes, we find this claim abandoned. See 11126 Bal-
timore Blvd. Inc. v. Prince George County, Md., 58 F.3d 988, 993 n.7
(4th Cir. 1995).
Accordingly, we affirm the order of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid in the decisional process.
AFFIRMED
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