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Harasek v. National Railroad Passenger Corporation

United States District Court, District of Columbia

September 22, 2017

KATHLEEN A. HARASEK, Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION d/b/a/ AMTRAK, Defendant.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         This case presents a single issue: Whether Defendant National Railroad Passenger Corporation (“Amtrak”) is subject to the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. Plaintiff Kathleen Harasek, a former Amtrak employee, alleges that her supervisor retaliated against her, in violation of 31 U.S.C. § 3730(h), for filing a report with Amtrak's Office of the Inspector General (“OIG”). The matter is before the Court on Amtrak's motion to dismiss, Dkt. 5. The Court agrees that Plaintiff fails to state a claim for relief because the Amtrak Reform and Accountability Act (“the Reform Act”), Pub. L. No. 105-134, § 415(d), 111 Stat. 2570 (1997) (codified at 49 U.S.C. § 24301(a)(3) (2001)), provides that Amtrak “shall not be subject to title 31, ” id. The Court will, accordingly, GRANT Amtrak's motion to dismiss, Dkt. 5.

         I. BACKGROUND

         For purposes of the pending motion, the Court accepts as true the facts alleged in the complaint, Dkt. 1. See Wood v. Moss, 134 S.Ct. 2056, 2065-67 & n.5 (2014); see also Williams v. Ellerbe, 317 F.Supp.3d 144, 146 (D.D.C. 2018).

         Plaintiff Kathleen Harasek worked as an Inspector for the Amtrak Police Department (“APD”) from July 2013 to July 2016. Dkt. 1 at 3, 15 (Compl. ¶¶ 15, 66). In September 2015, Plaintiff was selected by Amtrak's Chief of Police, Polly Hanson (“Chief Hanson”), to spearhead efforts to plan Pope Francis's visit to the United States. Id. at 4 (Compl. ¶ 19). This assignment was “a massive undertaking” involving coordination between multiple security and law enforcement agencies. Id. Plaintiff avers that due to her work on the Papal visit, her “administrative and operational responsibilities” were reassigned to another officer at the “direction of Chief Hanson and APD leadership.” Id. at 4-5 (Compl. ¶ 21).

         Plaintiff's role as an Inspector also entailed leading instructional programs for “external law enforcement partners.” Id. at 5 (Compl. ¶ 27). This included RailSafe, a two-day outreach program about “the capabilities of the APD” and how external law enforcement could “assist with responding to incidents within [the] APD's jurisdiction.” Id. at 6 (Compl. ¶ 28). From 2014 onward, the RailSafe program was funded by grant money from the United States Security and Transportation Authority. Id. (Compl. ¶ 30). Amtrak solicited bids from third-party vendors to implement the program, and ultimately awarded the contract-valued at over $1, 000, 000-to a security consulting firm, ABS Consulting (“ABS”). Id. (Compl. ¶¶ 31-32).

         During the summer of 2015, Plaintiff “became aware that ABS was involved in fraudulent, or potentially fraudulent activity[, ] arising from its work associated with the RailSafe Program.” Id. at 6 (Compl. ¶ 33). Specifically, Plaintiff alleges that “ABS was fraudulently submitting claims . . . for the work that was actually performed by Amtrak personnel, all under the direction and supervision of Chief Hanson.” Id. at 8 (Compl. ¶ 38). ABS allegedly used “handouts and materials” prepared by Amtrak staff “without permission or consent, ” id. at 7 (Compl. ¶ 35), and took credit for presentations and logistical services that “were led and conducted by Amtrak personnel, not ABS, ” id. (Compl. ¶ 36). Plaintiff further suspected that “Chief Hanson was directly or indirectly involved, and/or economically benefitting from” ABS's activity because of her “close personal relationship” with Kerry Thomas, the RailSafe project manager at ABS. Id. at 6-7 (Compl. ¶ 33). In mid-October 2015, Plaintiff reported these concerns to Amtrak's Office of the Inspector General (“OIG”) and “request[ed] that the OIG investigate . . . Chief Hanson's potential involvement.” Id. at 8 (Compl. ¶ 39).

         Plaintiff alleges that, shortly thereafter, Chief Hanson subjected her to a series of adverse employment actions in retaliation for her report. See Id. at 8-15 (Compl. ¶¶ 41-67).

         First, Plaintiff alleges that on or about October 21, 2015, Chief Hanson transferred her to an “undesirable position of lesser status”-“Inspector/Inspection and Audits.” Id. at 8-10 (Compl. ¶¶ 41, 45). She further alleges that due to the transfer, she was “stripped of supervisory duties and administrative staff, ” “assigned to menial tasks, ” and “limited” in her “exposure to other ranking APD personnel.” Id. 9-10 (Compl. (¶ 45)

         Second, Plaintiff claims that on November 17, 2015, Chief Hanson assigned her “holiday travel duty” over Thanksgiving even though “the typical protocol was to assign a Sergeant or Captain” for the job. Id. at 10 (Compl. ¶¶ 48-49). In that same conversation, Chief Hanson allegedly “accused [Plaintiff] of causing problems within Amtrak, and further threatened that [Plaintiff] should resign from the APD or there would be negative consequences.” Id.

         Third, Plaintiff avers that on or before December 4, 2015, Chief Hanson gave her a negative performance review, stating that Plaintiff “[d]id [n]ot [m]eet [c]ommitments” for “4 of the 9 Smart Goals set forth on [her] Performance Evaluation.” Id. at 11 (Compl. ¶ 53). The review, however, did not account for Plaintiff's special assignment to the Papal visit or the reassignment of her operational duties during that time. Id. at 12 (Compl. ¶ 57). Plaintiff alleges that “Chief Hanson's negative ratings . . . precluded [her] from receiving any promotion, salary increase[, ] or monetary award at the end of the fiscal year, ” and “derailed” her career advancement at Amtrak. Id. at 11-12 (Compl. ¶ 54).

         Finally, Plaintiff alleges that on or about March 9, 2016, she was informed that Chief Hanson had filed an “Internal Affairs Complaint” against her, accusing her of making false statements “in the self-evaluation section of her 2015 Performance Review.” Id. at 13 (Compl. ¶¶ 61-62). This complaint was later dismissed. Id. at 15 (Compl. ¶ 68). Plaintiff nevertheless asserts that “the mere filing of [the complaint] [had] negative consequences” and “impede[d] her future employment opportunities and advancement at Amtrak.” Id. at 14 (Compl. ¶ 63).

         As a result of these “harassing, retaliatory, and deliberate actions, ” Plaintiff alleges that she “was constructively discharged by Amtrak on July 1, 2016.” Id. at 15 (Compl. ¶ 66). She subsequently filed this suit, alleging a claim for retaliation in violation of the FCA, 31 U.SC. § 3730(h), and seeking damages, attorney's fees, and other “relief as provided by the False Claims Act.” See Dkt. 1 at 16, 18 (Compl. ¶ 71, Prayer). Amtrak has now moved to dismiss on the ground that, “by statute, Amtrak is not subject to suit under the FCA.” Dkt. 5-1 at 3 (citing 49 U.S.C. § 24301(a)(3)).

         II. ...


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