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SHEKOYAN v. SIBLEY INTERNATIONAL CORP.

March 19, 2004.

VLADIMIR SHEKOYAN, Plaintiff
v.
SIBLEY INTERNATIONAL CORP., Defendant



The opinion of the court was delivered by: REGGIE B. WALTON, District Judge

MEMORANDUM OPINION

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, Page 2 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.

I. Background

  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 that Page 3 [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 Page 4 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 Judgment
  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, 248 (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 Page 5 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).

  III. Analysis

 (A) The Plaintiff's False Claims Act "Whistleblower Provision" Claim

  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: Page 6

 
[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 activity.'
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 Page 7 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 out that
[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 ...

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