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YESUDIAN v. HOWARD UNIV.

September 6, 1996

DANIEL R. YESUDIAN, Plaintiff,
v.
HOWARD UNIVERSITY, et. al., Defendants.


HAROLD H. GREENE, United States District Judge


The opinion of the court was delivered by: GREENE

Before the Court is defendants' motion for judgment as a matter of law pursuant to FED. R. CIV. P. 50(b), or, in the alternative, for a new trial pursuant to FED. R. CIV. P. 59, and plaintiff's motion for post-verdict equitable relief.

 I

 Plaintiff, Dr. Daniel Yesudian, worked at Howard University from 1971 to 1992. In 1983, after several promotions, he was transferred to Howard University's Purchasing Department, where he worked until his May 1992 termination. From 1984 to 1992, plaintiff repeatedly complained to upper level officers at Howard University about his supervisor, Mr. Parker, and about various alleged improprieties in the Purchasing Department. *fn1" On May 1, 1992, plaintiff was terminated from his job at Howard University by Parker.

 Plaintiff then brought the instant action alleging violations of the False Claims Act, retaliation for reporting the alleged false claims, breach of contract, and various related claims. A jury trial was held from November 14 to 21, 1995, at the conclusion of which the jury returned a verdict in favor of plaintiff on two of his claims -- (1) the claim against Defendant Parker for unlawful retaliation, i.e. termination, and (2) the claim against Howard University for breach of contract/promissory estoppel. The jury awarded plaintiff $ 180,000 in back pay, and stated that plaintiff should be awarded the option to have his termination stricken from his employment record and to retire as of May 1, 1992 in accordance with the rules in effect at Howard University as of May 1, 1992. *fn2" Defendant Parker challenges the jury's verdict against him on the retaliation claim and Howard University challenges the jury's verdict against it on the contract/promissory estoppel claim. Alternatively, both parties move for a new trial.

 II

 The Court will grant a Rule 50 motion for judgment as a matter of law only if "the evidence, together with all inferences that can reasonably be drawn therefrom, is so one-sided that reasonable men could not disagree on the verdict." Hayman v. National Academy of Sciences, 306 U.S. App. D.C. 227, 23 F.3d 535, 537 (D.C. Cir. 1994) (internal quotation and citations omitted). The question is whether there was sufficient evidence upon which a jury could properly base a verdict for plaintiff. Richardson by Richardson v. Richardson-Merrell, Inc., 273 U.S. App. D.C. 32, 857 F.2d 823, 828-29 (D.C. Cir. 1988), cert. denied, 493 U.S. 882, 107 L. Ed. 2d 171, 110 S. Ct. 218 (1989).

 III

 To find for plaintiff on his claim of retaliatory discharge in violation of 31 U.S.C. § 3730(h) the jury must have found that (1) plaintiff engaged in conduct protected under the False Claims Act, (2) Defendant Parker was aware of plaintiff's actions, and (3) plaintiff was terminated in retaliation for his conduct. Mikes v. Strauss, 889 F. Supp. 746, 752 (S.D.N.Y. 1995). As the Court finds that there was no evidence from which the jury could reasonably have found that plaintiff proved the first or second elements of his claim, Defendant Parker's motion will be granted.

 Conduct protected by the False Claims Act ("FCA") includes:

 
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 ....

 31 U.S.C. § 3730(h); see also United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1996 WL 412819, *7 (10th Cir. 1996) (plaintiff's conduct must have been taken in furtherance of FCA enforcement action). Although intra-corporate complaints may constitute protected activity, such is not the case here. Plaintiff had been making the same allegations of improprieties since 1984. However, he never initiated a government investigation or a private qui tam suit. There was no evidence presented at trial from which the jury could find that plaintiff's complaints were those of an employee concerned that his employer was defrauding the federal government, rather than those of a disgruntled employee.

 To prove the second element of his claim, plaintiff was required to present evidence from which the jury could reasonably find that defendant was on notice that "plaintiff was either taking action in furtherance of a private qui tam action or assisting in an FCA action brought by the government." Century Healthcare Corp., 90 F.3d 1514, 1996 WL 412819, *7; Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994), cert. denied, 130 L. Ed. 2d 1075, 115 S. Ct. 1110 (1995); Mikes v. Strauss, 889 F. Supp. at 753. Again, plaintiff had been making his allegations of improprieties since 1984. Plaintiff never suggested to defendant that he intended to utilize his allegations in furtherance of a False Claims Act action; gave no suggestion that he was going to report the alleged improprieties to government officials; and took no other steps which would put defendant on notice that he was acting in furtherance of a False Claims Act action. Cf. Century Healthcare Corp., 90 F.3d 1514, 1996 WL 412819, *8. At no time did plaintiff allege that defendant was defrauding the government. Nor did plaintiff ever assert that the alleged improprieties involved funds provided by the federal government. *fn3" Although plaintiff did present evidence showing that Parker knew that plaintiff complained to Mr. Fletcher about preferential treatment of employees and vendors in the Purchasing Department, there was absolutely no evidence presented from which the jury could have found that Parker believed that plaintiff was contemplating a qui tam suit against him or assisting the government in an investigation.

 Defendant Parker's motion will accordingly be granted. See United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1996 WL 426854, *8-9 (9th Cir. 1996) (holding that plaintiff failed to present evidence to support jury verdict on FCA retaliation claim because plaintiff never gave any indication that she was investigating school district for defrauding the federal government; although defendant may have engaged in ...


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