U.S. District Court for the Eastern District of Virginia Grants Summary Judgment in Favor of Defendant in Action Brought Under FCA’s Anti-Retaliation Provision

 

In Dillon v. SAIC, Inc., No. 1-12-CV-390, 2013 U.S. Dist. LEXIS 11200 (E.D. Va. Jan. 28, 2013), the U.S. District Court for the Eastern District of Virginia granted the defendant government contractor’s motion for summary judgment in an action brought under the False Claims Act’s (“FCA”) anti-retaliation provision.

Factual and Procedural History: The plaintiff alleged that he was demoted from a supervisory position and later terminated by defendant SAIC, Inc. because, inter alia, he had questioned his supervisor when the supervisor told him to bill differently than he was billing and he had also confirmed with senior managers that, contrary to his supervisor’s instructions, he was billing correctly.  In response, the defendant argued that none of plaintiff’s activities rose to the level of a “protected activity,” that SAIC lacked “notice” of any protected activity, and that legitimate management and customer needs were responsible for the adverse employment actions.   The court ruled that the defendant was entitled to judgment as a matter of law.

Ruling on “Protected Activity” and “Notice” Elements of Claim:  The court ruled, in an opinion by Judge Liam O’Grady, that summary judgment in favor of the defendant was warranted because “none of Plaintiff’s activities rise to the level of protected activity because the element of fraud or illegality is not present and Plaintiff failed to provide notice that qui tam litigation was a reasonable or distinct possibility.”  Id. at *15.  The court relied in part on the Fourth Circuit’s recent unpublished decision in United States ex rel. Parks v. Alpharma, Inc., No. 11-1498, 2012 U.S. App. LEXIS 17155 (4th Cir.  Aug. 14, 2012), which “distinguishes between situations whereby an employee’s complaint is ‘clearly couched in terms of concerns or suggestions,’ which cannot be considered a protected activity,” and “one in which the employee’s complaint consists of a ‘threat or warnings of FCA litigation,’ which is sufficient to satisfy the protected activity element.”  Dillon, 2013 U.S. Dist. LEXIS 11200, at *15 (quoting Parks, 2012 U.S. App. LEXIS 17155, at *8).  In the district court’s view in Dillon, “none of the actions taken by Plaintiff prior to being notified of his impending termination consisted of more than expressions of concern or suggestion” and, thus, “[t]hey cannot, therefore, satisfy either the protected activity element or the notice requirement.”  Id. at *15-*16.

Ruling on “Retaliation” Element of Claim: The court also ruled, in what appears to be dictum, that, in any event, SAIC had not taken the adverse employment action against the plaintiffas a result of his expressions of concern.  The court found compelling the fact that the defendant had “la[id] out significant evidence and testimony from its customer that tend[ed] to show [the plaintiff] was terminated based on legitimate business reasons.”  Id.at *24.   The court noted that “even Plaintiff admitted there was a legitimate business reason for his reassignment.”  Id.  The court did not address the question of whether the defendant might have had multiple reasons for firing plaintiff involving an improper purpose as well as a legitimate one, and whether such evidence of multiple motives could provide a basis for liability.  Id. at *25.