The opinion of the court was delivered by: REGGIE B. WALTON, District Judge
This matter comes before the Court upon defendant Sibley
International Corporation's ("Sibley") Motion for Summary Judgment
("Def.'s Mot."), following the issuance of this Court's August 16, 2002
Memorandum Opinion and Order dismissing the plaintiffs claims of
discrimination on the basis of national origin in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et.
seq. (2000), and discrimination on the basis of national origin in
violation of Presidential Executive Order ("E.G.") 11,246, Exec. Order
No. 11,246, 30 Fed. Reg. 12,319 (Sept. 24, 1965). Shekovan v. Siblev
Int'l Corp., 217 F. Supp.2d 59 (D.D.C. 2002). The defendant now
seeks summary judgment on the plaintiff's remaining claims of retaliatory
termination of his employment in violation of the whistleblower provision
of the False Claims Act ("FCA"), 31 U.S.C. § 3730(h) (2000),
discrimination on the basis of national origin in violation of the
District of Columbia Human Rights Act ("DCHRA"), D.C. Code §§
2-1401.1-1403.17 (2001), and District of Columbia common law claims of
breach of contract, defamation,
and intentional infliction of emotional distress.*fn1 Upon
consideration of the parties' submissions and for the reasons set forth
below, the Court will grant the defendant summary judgment on the
plaintiff's FCA claim and will dismiss the parties' District of Columbia
claims pursuant to 28 U.S.C. § 1367.
The plaintiff was born in Armenia and immigrated to the United States
in 1994. Plaintiffs Statement of Undisputed Material Facts ("Pl's Facts")
¶ 1. In September 1997, the United States Agency for International
Development ("USAID") awarded defendant Sibley International Corporation
("Sibley"), which is incorporated in Delaware and headquartered in the
District of Columbia, "the task order for the Georgia Enterprise
Accounting Reform ("GEAR") project[.]" Statement of Material Facts Not in
Dispute ("Def.'s Facts") ¶¶ 1, 4. The defendant states that "[t]he
purpose of the GEAR project, in general, was to assist with the
transition from command to market accounting in the Republic of Georgia
and develop enterprise market economy accounting and auditing practices
in the Republic of Georgia." Id. ¶ 5. On January 26, 1998,
the parties signed an employment contract and the plaintiff was hired as
a "Senior Training Advisor" for the GEAR project. Pl's Facts ¶ 4.
While the employment contract clearly indicates that the plaintiff's
employment "will be for a period of twenty-one months beginning
approximately January 26, 1998 and ending October 31, 1999" and that
Sibley "believe[d] [the GEAR project] will be extended for an additional
period of time[,]" Def.'s Facts, Exhibit ("Ex.") 6, the plaintiff asserts
that Donna Sibley, the President of Sibley, "conveyed and anticipated
[plaintiff's] employment with Sibley [would] extend beyond the 21
months of the GEAR Project Task Order." Pl's Facts ¶ 6. In February
of 1998, the plaintiff went to the Republic of Georgia to perform his job
duties pursuant to the agreement. Id. ¶ 18. In June of
1999, Jack Reynolds became employed by Sibley as "Chief of Party" of the
GEAR Project in the Republic of Georgia. Id. ¶ 52. The
plaintiff asserts that Reynolds "created a hosfile work environment for
[him], on the basis of his national origin, Armenian[.]" Id.
¶ 53. Reynolds is alleged to have "repeatedly told [p]laintiff, and
other persons at his worksite, that [p]laintiff was not a `real'
American" and "constantly made derogatory and racist comments about
Georgian people, as well as other people from the former Soviet Union."
Id. ¶¶ 54-55. The plaintiff asserts that he repeatedly
complained to Sibley's headquarters in the District of Columbia about the
problems he was having with Reynolds. Id. ¶ 68. The
plaintiff states that Gary Vanderhoof, who worked at headquarters, was
informed about Reynolds' behavior, including the allegation that the
plaintiff was deprived of access to GEAR Project vehicles. Id.
The plaintiff also states that Vanderhoof told him "to work the problems
out locally with Reynolds and said that headquarters was busy getting the
project extended to receive additional funding from US AID."
Id. ¶ 71.
The plaintiff also asserts that he "reported to Sibley officials in
Washington, D.C. what he believed was the misuse of United States
government funds on the GEAR Project." Id. ¶ 72. As the
Court will discuss in detail below, the plaintiff believed that US AID
funds were being misused by either Sibley employees or Sibley
subcontractors. Id. ¶ 74. In October of 1999, the defendant
asserts that it informed the plaintiff that his employment contract was
scheduled to end on October 31, 1999. Def.'s Facts ¶ 21. The
plaintiff contends, however, that he was terminated
on October 14 or 15, 1999, after "Jack Reynolds shouted at [him],
berated him, ordered him to immediately vacate the premises and barred
him from the premises." Pl's Facts ¶ 77.
II. Standard of Review for Summary
Summary Judgment is generally appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as
a matter of law." Fed.R.Civ.P. 56(c). In assessing a summary judgment
motion, the Supreme Court has explained that a trial court must look to
the substantive law of the claims at issue to determine whether a fact is
"material," Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986), and must treat a "genuine issue" as "one whose resolution could
establish an element of a claim or defense and, therefore, affect the
outcome of the action." Sanders v. Veneman, 211 F. Supp.2d 10,
14 (D.D.C. 2002) (citing Celotex Corp. v. Catrett,
477 U.S. 317
, 322 (1986); Anderson, 477 U.S. at 248).
While it is understood that when considering a motion for summary
judgment a court must "draw all justifiable inferences in the nonmoving
party's favor and accept the nonmoving party's evidence as true,"
Greene v. Amritsar Auto Servs. Co., 206 F. Supp.2d 4, 7
(D.D.C. 2002) (citing Anderson, 477 U.S. at 255), the
non-moving party must establish more than "[t]he mere existence of a
scintilla of evidence in support of the plaintiffs position,"
Anderson, 477 U.S. at 252. To prevail on a summary judgment
motion, the moving party must demonstrate that the non-moving party
"fail[ed] to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex, 477 U.S. at 322. "Even
when material facts are in dispute, however, summary
adjudication may be appropriate if, with all factual inferences
drawn in favor of the nonmovant, the movant would nonetheless be entitled
to judgment as a matter of law." Young Dental Mfg. Co. v. O3 Special
Prods., Inc., 112 F.3d 1137, 1141 (Fed. Cir. 1997) (citing
Stark v. Advanced Magnetics, Inc., 29 F.3d 1570, 1572-73 (Fed.
Cir. 1994)). The District of Columbia Circuit has stated that the
non-moving party may not rely solely on mere conclusory allegations.
Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999):
Harding v. Gray, 9 F.3d 150. 154 (D.C. Cir. 1993). Thus, "[i]f
the evidence is merely colorable . . ., or is not significantly
probative . . ., summary judgment may be granted." Anderson,
477 U.S. at 249-50 (citations omitted).
(A) The Plaintiff's False Claims Act "Whistleblower
As this Court explained in its August 16, 2002 Memorandum Opinion, the
FCA contains a qui tam provision,*fn2 which permits "an
individual (known as a relator) [to] bring a cause of action both on that
person's behalf and on behalf of the government, thereby allowing the
relator to share a portion of the proceeds derived from the recovery in a
case." Shekoyan, 217 F. Supp.2d at 71 (quoting Vermont
Agency of Natural Res, v. United States ex rel. Stevens,
529 U.S. 765, 768-70 (2000)). Of particular significance to this case is
a 1986 amendment to the FCA that was enacted by Congress "in response to
concern that employees who exposed false claims were being punished by
their companies[.]" United States ex rel. Yesudian v. Howard Univ.,
153 F.3d 731, 736 (D.C. Cir. 1998). Section 3730(h) of the FCA, which is
otherwise known as the whistleblower provision, provides that:
[a]ny employee who is discharged, demoted,
suspended, threatened, harassed, or in any manner
discriminated against in the terms and conditions
of employment because of lawful acts done by the
employee . . . 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). The District of Columbia Circuit has
stated that to make out a successful claim of retaliation under Section
3730(h), a plaintiff must demonstrate:
(1) he engaged in protected activity, that is,
`acts done . . . in furtherance of an action
under this section'; and (2) he was discriminated
against `because of that activity. To establish
the second element, the employee must in turn make
two further showings. The employee must show that:
(a) `the employer had knowledge the employee was
engaged in protected activity'; and (b) `the
retaliation was motivated, at least in part, by
the employee's engaging in [that] protected
Yesudian, 153 F.3d at 736 (quoting S. Rep. No. 99-345, at
35, reprinted in 1986 U.S.C.C.A.N. at 5300). The defendant
seeks summary judgment on the plaintiff's FCA claim because it asserts
that the plaintiff is unable to establish any of the elements of a FCA
claim. Def.'s Mot., Memorandum of Law in Support of Defendant's Motion
for Summary Judgment ("Def.'s Mem.") at 16-26.
(1) Was the Plaintiff Engaged in Protected Activity
in Furtherance of an FCA Action?
The Whistleblower Provision of the FCA requires that the plaintiff be
engaged in protected activity "in furtherance of an action under [the
FCA], including investigation for, initiation of, testimony for, or
assistance in an action filed or to be filed under [the FCA]."
31 U.S.C. § 3730(h). The Yesudian Court noted that it was "Congress'
intent to protect employees while they are collecting information about a
possible fraud, before they have put all the pieces of
the puzzle together. Indeed, it is for this reason that courts have
held employees' activities protected although they have not filed qui
tarn suits." 153 F.3d at 740.
For a plaintiff to be engaged in protected activity, it is "sufficient
that [he] be investigating matters that `reasonably could lead' to a
viable False Claims Act case[,]" id., or, in other words,
engaged in "acts which carry a `distinct possibility' of suit under the
FCA." McKenzie v. BellSouth Telecomm., Inc., 219 F.3d 508, 515
(6th Cir. 2000) (citations omitted). Of particular significance to this
case, is the Sixth Circuit's statement in McKenzie that "case
law indicates that `protected activity' requires a nexus with the `in
furtherance of prong of an FCA action." Id. (citing
Yesudian, 153 F.3d at 740). The McKenzie Court
commented that "[t]he legislative history [of the FCA] states that
`protection should extend not only to actual qui tarn litigants, but
those who assist or testify for the litigant, as well as those who assist
the Government in bringing a false claims action. Protected activity
should therefore be interpreted broadly.'" Id. at 514 (quoting
S. Rep. No. 99-345, at 35, reprinted in 1986 U.S.C.C.A.N. at
5300) (emphasis deleted). However, the Sixth Circuit was careful to point
[t]he legislative history directive to `broadly
construe' the plaintiff's `protected activity,'
however, does not eliminate the necessity that the
actions be reasonably connected to the FCA, which
was designed to encourage and protect federal
whistleblowers. The enumerated ...