United States of America et al v. ManTech International Corporation, No. 1:2016cv00132 - Document 77 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION re: ManTech's Motion for Summary Judgment. Signed by District Judge Anthony J Trenga on 09/14/16. (pmil, )
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United States of America et al v. ManTech International Corporation Doc. 77 4 • • IN THE UNITED STATES DISTRICT COURT FOR THE EASTEN DISTRICT OF VIRGINIA Alexandria Division UNITED STATES OF AMERICA, ex rel., ) KEVIN CODY nd MUGE CODY, ) ) ) Plaintifs, ) v. ) ) MANTECH INTERNATIONAL ) COPORATION, ) ) ) Defendant. Civil Action No. 1: l 6-cv-132 (AJT/JFA) MEMOANDUM OPINION Plaintifs Kevin and Muge Cody, husband and wie, have iled a retaliation claim under the False Claims Act and the Deense Contractor Whistleblower Protection Act against their ormer employer, defendant ManTech Intenational Corporation ("ManTech"). The Codys allege that MnTech retaliated against them or questioning the propriety of certain of ManTech' s bidding practices in connection wih a large govement procurement contract rom the United States Army, irst by diminishing their responsibilities, then ultimately by terminating their employment. Following the completion of discovery, ManTech iled a motion or smmry judgment which the Court took under advisement ollowing a hearing on August 19, 2016. For the reasons stated herein, MnTech' s motion will be GRANTED in part and DENIED in prt. The motion will be GRANTED with respect to plaintifs' claims or retaliation based on conduct other than the iling of this action on the grounds that, s a mater of law, plaintifs did not otherwise engage in conduct that constituted "protected activity" or the purposes of a cognizable retaliation claim. The motion will be DENIED with respect to plaintifs' claims or retaliation s Dockets.Justia.com - a result of the iling of this qui tam lawsuit. There is no dispute that plaintifs' iling of his action constituted "protected activity" and that their subsequent termination constituted an "adverse" employment action. Accordingly, the case will proceed to trial on the issue whether plaintifs' iling of this action was a "contributing actor" to their termination by ManTech. I. PROCEDURL HISTORY Plaintifs originally iled this qui tam action under seal on December 12, 2013 in the United States District Cout or the Central District of Calionia alleging three causes of action against MnTech: (i) a violation of the False Claims Act, 31 U.S.C. §3729 et seq. (the "FCA") in the course of bidding or and performing a contract or the United States Army Tank-Automotive and Armaments Command ("TACOM"); (ii) retaliation in violation of the FCA, 31 U.S.C. §3730(h) or attempting to prevent ManTech' s alleged FCA violations; and (iii) retaliation under the Dodd-Frank Wall Street Reorm and Consumer Protection Act, 12 U.S.C. §§ 5301 et seq. See generaly [Doc. No. l ]. On November 18, 2014, the Govement iled a notice declining to intervene in this action and the suit was unsealed on November 21, 2014. [Doc. Nos. 15, 16]. ManTech thereinater iled a motion to trnser the case to this District, which the Central District of Calionia granted by order dated February 9, 2015. [Doc. No. 29]. ManTech moved to dismiss plaintifs' original complaint on February 25, 2016. [Doc. No. 35]. On March 16, 2016, plaintifs iled their First Amended Complaint [Doc. No. 43] (the "Complaint"). In the Complaint, plaintifs have eliminated any claim that ManTech had violated a substantive provision of the FCA and allege only claims or retaliation in violation of the FCA' s anti retaliation provision, 31 U.S.C. § 3730(h), and the Deense Contractor Whistleblower Protection 2 Act ("DCWPA"), 10 U.S.C. § 2409. 1 ManTech moved or smmary judgment on June 30, 2016 [Doc. No. 54] (the "Motion") nd the Cot held a hearing on the Motion on August 19, 2016 [Doc. No. 72].2 II. FACTUAL ECOD Unless oherwise stated herein, the ollowing are undisputed acts or are disputed acts viewed most avorably to plaintifs: The Codys re omer executives of ManTech, a multinational govement contractor specializing in providing technological services to the United States Govement, including its armed services. Kevin Cody began his employment with ManTech in 1990 and was terminated by ManTech efective March 20, 2015. Compl. 32, 255. 3 Muge Cody began her employment with ManTech in 2001 and was terminated efective July 1, 2015. Id. 37, 260. ManTech placed both the Codys on administrative leave on Janury 12, 2015, ater being served in this action on January 8, 2015. The Codys remained on administrative leave until their respective terminations. The context surrounding the Codys' retaliation claims is ManTech' s contract with the U.S. Army, through TACOM, or the maintenance in Afghanistan nd Kuwait of Mine Resistant 1 The parties reer to 10 U.S.C. § 2409 as the National Deense Authorization Act (the "NDAA "). See Compl. l 284. 10 U.S.C. § 2409 is, in act, the Defense Contractor Whistleblower Protection Act, which was amended by the NDAA. 2 In related proceedings, on July 10, 2015, plaintifs iled a Sarbanes-Oxley Act retaliation complaint against ManTech with the United States Department of Labor, Occupational Saety and Health Administration, and on July 31, 2015, a complaint with the United States Department of Deense, Ofice of Inspector General, alleging retaliation prsuant to the DCWPA. ManTech responded to these administrative complaints. 3 The Cot' s reerences to the Complaint' s allegations are intended simply to summarize acts that re undisputed or otherwise appear in the record, either as direct evidence or reasonable inferences, when viewed most avorably to plaintifs. 3 Ambush Protected ("MAP") vehicles, which are designed to withstand improvised explosive devices and tactical ambushes. TACOM had awarded ManTech numerous sole source contracts with respect to that work since at least 2008, but in 2011, ManTech was required to compete or the continuation of its MRAP work. ManTech submitted its initial competitive bid on September 23, 2011. TACOM awrded ManTech the contract on May 31, 2012. 4 The awarded contract, Contract W56HZV-12-C-0127 (the "MAP Contract" or the "Contract "), was a "costreimbursement" contract worth $2.85 billion in revenues to ManTech over ive years and constituted at that time ManTech's largest and most lucrative contract. Management of the MRAP Conract was assigned to Kevin Cody's "business nit"; Muge Cody served as Progrm Manager or the Conract along with others in her Program Management Ofice ("PMO"). A. The MAP Contract Issues As of 2011, MnTech employees deployed in Afghnistan were paid or 84 hours of work each week (12 hours per day, 7 days per week). In addition to base pay, ManTech paid certain employees premiums or being deployed to hzardous and isolated locations. At that time, deployed employees were paid both a "Hz" premium and an "lso" premium (collectively "H/lso") or each of the 84 hours worked each week. For employees in Afghanistan, each of these premiums amounted to 35% of base pay. In order to lower its overall bid and thereby position itself more competitively, ManTech's initial September 2011 competitive bid proposal included costs or Halso premium or only 40 of the 84 hours that employees were working. Following the submission of initial bids, TACOM opened discussions with the oferors and utilized ritten Evaluation Notice Discussions ("ENDs") to clariy or revise certain aspects 4 Following TACOM's awarding the MRAP Contract to ManTech, a bid protest was iled by a competing bidder. That protest was resolved in ManTech's avor on September 21, 2012. 4 of the oferors' proposals. During this process, the Army questioned-via END Control Number END-MTT-CP-039A ("END 039A")-whether ManTech could retain its incumbent MRAP technician workorce to perform the Contract if it only paid H/Iso premiums on the irst 40 hours worked each week rather than on all 84. Ater receiving TACOM's END 039A, ManTech proposed a "retention premium" that would be pid to incumbent employees during the irst 14 months of contract perormance to ofset the reduction in Halso pay. ManTech represented that the cost of the retention premium would be included as part of its ringe beneits pool, categorized or accounting purposes as an "indirect cost." In that regard, ManTech had established in 2011, with govement approval, a Global Contingency Operations ("GCO") cost center, which generated the applicable indirect rate or the MRAP Conract. 5 ManTech also projected a reduction in its direct labor ("DL ") rates to the level at which it had most recently been able to hire employees on the existing contract. In response to ManTech's ongoing bid revisions with regard to END 039A, and speciically ManTech's proposal to include a retention premium to make up or the deicit in Ha/Iso pay, TACOM issued to ManTech another END: END Control Number END-MTT-CP039B ("END 039B"). In END 039B, TACOM requested inormation regarding MnTech's "new 'Retention Premium' to incumbent employees with associated costs as part of its Fringe Pool." [Doc. No. 55, Ex. 1 at l ]. In response to this second END, ManTech disclosed that the retention premium had a projected cost of $37.9 million. [Ibid.]. In late April 2012, ManTech submitted a "inal revised proposal" ("FRP") to TACOM incorporating those disclosures. 5 The GCO cost center included indirect costs or the MRAP Contract and certain other contracts. 5 TACOM awarded ManTech the MRAP Contract on May 31, 2012 and ManTech began perfoming under the Contract in that all. Shortly ater the Contract award, TACOM directed ManTech to "ramp up" its manpower to levels beyond those assumed in its initial contract bid and FRP due to increased troop activity in Iraq and Afghanistan. Later, in 2013, TACOM directed ManTech to decrease its labor orce dramatically in connection with the "drawdown" of orces in Afghanistan. By letter dated October 29, 2013, ManTech omally requested approval to merge its GCO cost center with another indirect cost center, the IS cost center, retroactive to January 1, 2013. The Govement approved this request by letter dated August 7, 2014. B. The Codys' Internal Communications Concerning ManTech's MAP Contract Bids Both beore and ater the MRAP Contract award in May 2012, the Codys, and Kevin Cody in particulr, raised issues concening the extent to which ManTech had disclosed to the Army all of the costs it anticipated in connection with performance under the MRAP Contract. Beginning in early March 2012 through April 2012, Kevin Cody raised his concens within ManTech while ManTech was in the process of revising its initial September 2011 proposal and responding to TACOM's END inquiries. Speciically, on March 6, 2012, during a meeting to discuss MRAP premium costs with Claude Etzler, ManTech' s Vice President of Financial Operation and Compliance, Kevin Cody stated that the MAP premium costs should be higher in ManTech's FRP to the Army. On March 22, 2012, Louis Addeo, President of ManTech's Technical Services Group, sent an e-mail to Kevin Cody in which he asked Cody or a "position paper" concening the impending MRAP bid, including, in particular, "what is [the] issue, how are we addressing, what is [the] consensus, what are your concens, other?" Later that day, Cody replied that "[t]he plan as agreed earlier this week takes monies out of the [direct labor] rate and 6 places an added 'premium' in the Fringe [beneit] pool . . . [direct labor] rates have been driven down by our atempt to get closer to bid 'compensation,' there is no group of employees looking to work in Afghanistan or < $1OOK. " In his response, Cody additionally acknowledged that ManTech "satisied TACOM with our response to END [039B]. " Finally, Cody observed that "[a]t this time, I believe that outside of BU 6 and [Muge Cody's division] I may be the only one concened. All others seem too concened with lowering the bid price. " [Doc. No. 65, Exs. 1, 9]. Two days later, on March 24, 2012, Kevin Cody sent an e-mail to the MRAP team in which he stated "I am advocating that we remain at our Februry price submission" but urther acknowledged that "we inally satisied the Govement . . . with our response to [END 039B] . . . (proof of satisaction is no urther ENs issued)[.]" [Id., Ex. 1O]. Later that evening, the MRAP team held a conerence call, memorialized in March 25 e-mail minutes rom Bonnie Cook, ManTech's Senior Vice President of Business Operations. In that e-mail, Cook stated that based on the previous evening's conerence call, "we will proceed as ollows: 1) revise [direct labor] rates or our current avg.[;] 2) include retention premiums or the irst 14 months of perormance to keep all employees['] comp packages whole. " She also wrote: "[]inal notes or the recordKevin [Cody] emphasized his concens regarding the risks identiied above as well as his position on the total comp required or perormance behind month 14. " [Id., Ex. 11]. The next moing, March 25, 2012, Cody wrote to the team stating "[t]he bottom line is changing our intenal negotiated rates and compensation increases risk to our proposal . . . [t]here is no real reduction in marketplace compensation. [I]t is atiicial as it is based on the DL, which 6 "BU" in this context reers to "business unit," a term that the Codys and others on the MRAP team used to reer to the particular division within ManTech responsible or overseeing the MRAP Contract. 7 is only one component of tree (DL, hours, and H/Iso rates) that drive total compensation or . . . personnel. " [Ibid.]. Approximately two hours later, Cody e-mailed Addeo seprately, stating that "[t]he proper way to address the reduction in compensation would be to reduce the $ value added as a 'premium,' which is where the reduction occured. I feel the team does not wnt to do this s they are looking to still reduce to a target that changed. " [Id. Ex. 12]. Cody concluded by stating that "[b]ottom line, there is a risk to changing our price; it took us too many ENs and discussions or us to satisy the Govement. " [Doc. No. 55, Ex. 3]. The next day, March 26, Cody sent another "point paper" to Addeo expressing his thoughts. Later that moning, however, Addeo gave the green light to the MAP team to "proceed with the current recommendation on the table," despite Cody's conces and observations. [Doc. No. 65, Ex. 14]. Cody reacted to this decision in an e-mail to Addeo in which he stated that "I would have expected that [I] would be included in an objective discussion. For the record note that the proposal on the table does not include all the $s to make employees whole. It contains $27m of $39m ... I still believe we have injected risk by changing what we have inally deended; time will tell . . . hopeully no ther ENs. " [Ibid. ] . From March 26, 2012 until April 17, 2012, there do not appear in the record any ther communications rom either Kevin or Muge Cody concening the MAP Contract. On April 17, as ManTech was inalizing its FP or submission to TACOM, Bonnie Cook wrote n e-mail to Kevin Cody stating that "[w ]e have reviewed any additional steps we could take to reduce our pricing, especially in light of the drawdown [of ground orces in Afghanistn]. Attached is a proposed pricing approach or the FP submittal." [Doc. No. 65, Ex. 15] . Erly the next moning, April 18, Kevin Cody replied that "[w]e should not take one element of compensation, 8 DL, and state that we have hired personnel at the compensation package that will be derived during the uture contract. We have had this discussion many times beore. Bottom line[] is any reduction in our price in FPR [sic] will increase our risk, and ultimately result in the Govement raising our bid." [Ibid.]. In her reply to Kevin Cody, Cook stated: What we believe occurred on the [competitive] bid is that [the other bidder] made assumptions about the drawdown. That is a act based in reality now and a changed condition rom what existed when the [] bid process began. We have not ever addressed the drawdown in our solutioning or this bid and there is no doubt other bidders did. We need to stay ocused on the source selection process. [Doc. No. 65, Ex. 16]. The next day, April 19, in another e-mail to the MRAP tem, Kevin Cody stated that he "[w]as looking at the DL rates again, and realize that the DL rates or the irst 14 months . . . did not have he ringe applied . . . I am not advocating that we hold at the curent bid, I just want to ensure total transparency." [Ibid.].7 The MRAP team decided to proceed with a reduced labor rate, without the revisions that Kevin Cody had been advocating. On April 24, 2012, ManTech submitted its FP with that pricing. TACOM awarded ManTech the MRAP Contract on May 31, 2012, and the Contract began in September 2012. In sum, the Codys' concens are smmarized in a January 29, 2013 e-mail to ManTech's compliance deprtment in which Kevin Cody wrote: . .. ManTech ailed to adequately increase the premium ringe rate, with the result that millions of dollars that should have been included in the proposal were not included. The rate was not adequate to cover known expenses. I have since lened that the proposed ringe rate is in act inadequate and rates have outpaced the bid as I suspected. I also have shared my concens that DL 7 Kevin Cody points to these April 19 communications as an indication that "I was certainly adamant that we were not putting those [ringe] costs into the contract, costs that we needed" and that he believed that ManTech's pticular use of the direct labor rate in its FP was "improper." [Doc. No. 65, Ex. 8]. 9 rates were too low in the proposal because they were based on greening eforts prior to proposal and award.8 Muge and I both shared our concens that the costs proposed to cover indirect personnel were insuficient because it only showed 14 personel in PMO when there were 60. I believe that these ailures during the proposal period and ater awrd have impacted ManTech's [i]ntemal/inancial controls and accounting. [Doc. No. 55, Ex. 5]. 9 The Codys allege that almost immediately ater T ACOM awarded ManTech the MRAP Contract in May 2012, ManTech began to retaliate against them. See generaly Compl. 14352. Beginning in May 2012, ManTech excluded Kevin Cody rom meetings which he normally would have attended and assigned another employee to oversee a diferent govement contract proposal which Cody normally would have supervised. During all 2012, while ManTech was beginning to execute the newly-awarded MRAP Contract, ManTech ailed to provide the resources Muge Cody required to perorm her duties as a PMO oficer overseeing the Contract. Then, on December 19, 2012, ManTech infomed Kevin Cody that it was removing the MRAP 8 "Greening eforts" reers to the practice of replacing tnover in the labor orce with replacements at lower compensation rates. In the Complaint, the Codys smmarize their perceived inadequacies in ManTech's bid as ollows: 9 [B]ecause ManTech . . . did not ully account or the [retention premium] in the proposal . . . ManTech began billing the U.S. Govement or the accrued additional labor premium pay as Variance Costs, even though the charges were anticipated beore the contract award, rather than the result of a luctuation in operating costs. ManTech billed these costs as Variance Costs because when the premium pay was billed as Fringe Costs, as the proposal indicated, it caused he Fringe Rate to be substantially higher than proposed . . . [o ]ver the duration of the MAP contract, ManTech improperly billed the govement or at least several million dollars or the labor premium as "Varince Costs." Compl. 170-74. 10 Contract rom within his business unit due to n intenal reorganization. 10 This transer of the MRAP Contract reduced revenues in Kevin Cody's business unit rom approximately $500 million to $20 million. ManTech also, on December 19, 2012, relocated Muge Cody's PMO division into a separate business unit, separating Muge Cody rom her MRAP oversight responsibilities. 11 In January 2013, the Codys herd rumors that ManTech's executives were stating that they planned to resign. Additionally, Muge Cody began to be excluded rom various meetings and communications, and was subjected to an "unusually high level of scrutiny." Compl. 199, 205, 207. On January 29, 2013, the Codys each sent e-mails to Terry Myers, ManTech's Senior Vice President of Compliance, and Steve Wynne, Senior Compliance Oicer. In those e-mails, the Codys stated that they had no intention to resign but were concened about retaliation "because of legitimate complaints we've made about ManTech's [i]ntenal/inancial controls and accounting during the MRAP [] proposal and bidding process. " [Doc. No. 55, Ex. 5]. They also requested that Myers "[p]lease review our concens [about the MRAP Contract] and tke appropriate action, and ensure that Muge and I do not sufer any retaliation or raising our concens." [Ibid. ]. The Codys met with Myers on February 7, 2013. During that meeting, the Codys expressed their belief that ManTech's recent business reorgnization-speciically relocating Muge Cody's PMO divison and removing the MRAP Contract rom Kevin Cody's business unit-were retaliatory actions. On March 26, Muge Cody sent n e-mail to ManTech's human resources division complaining that she had been excluded rom certain communications. In 1° Kevin Cody was inormed of this change by two of his supervisors, Louis Addeo and Daniel Keee, Executive Vice President of ManTech's Technical Services Group. 11 When ManTech removed the MRAP Contract rom Muge Cody's purview, it partially justiied the action by expressing that it was improper or Kevin Cody to manage his wie. The Codys allege that this reason was pretext or retaliation. 11 May 2013, the Codys again met with Myers and others in ManTech's compliance department to review the Codys' allegations. The compliance department inormed the Codys that ater review, it had not encountered any suspect activity with regard to the labor rates about which the Codys expressed concen in 2011 and 2012. On June 13 and again on June 20, 2013, Muge and Kevin Cody sent two additional e mails, respectively, to ManTech's human resources division complaining of harassment, bullying, blame-shiting, and their recent perceived demotions. On June 26, 2013, Daniel Keee, who had replaced Louis Addeo as President of ManTech's Technical Services Group, authored a memorandum to Muge Cody in which he stated that he had ound no evidence of compliance irregulrities or unlawul retaliation. On July 12, the Codys responded in an e-mail that "[we] disagree with the determinations and ormally request some explanation of how those determinations were made. " [Doc. No. 55, Ex. 13]. On October 9, 2013, Kevin Cody met with Keee and ManTech's CFO, Kevin Phillips. At that meeting, Keee advised Cody that ManTech would be consolidating Cody's business unit with another business unit headed by a diferent ManTech executive, Richard Simis. Keee and Phillips explained that the reorganization was due to "business realities," speciically, that the existing revenues within his business unit, approximately $20 million, did not justiy its existence as a separate business unit. Kevin Cody perceived this decision s an additional retaliatory consequence of the decision to remove the MRAP Contract rom his business unit. That month, ManTech transerred Cody rom his position in the Technical Services Group to a new position in MnTech's corporate headquarters s Corporate 12 Senior Vice President of Operations Suppot and Market Expansion, a job that, according to Cody, "really wasn't a job. " [Doc. No. 65, Ex. 8]. The Codys iled this qui tam lawsuit on December 4, 2013. In April 2014 and throughout the summer and all of 2014, Kevin Cody continued to complain about ManTech's treatment of 12 him and his belief that he was sufering rom retaliation. In those communications, Cody reiterated his previous year's concens regarding ManTech's labor rate accounting or the MRAP Contract nd the business reorganizations that afected his and Muge Cody's responsibilities over the MRAP Contract. He also complained about the size of the increase in his annual base salary, his stock option award, and his 2013 bonus. ManTech's compliance group investigated Codys' complaints insofar as they alleged potential "FAR violation[s] or raud with respect to ManTech's . . . cost segments in 2013" and concluded that no improper nondisclosure or other violations had occured. See generally [Doc. No. 55, Ex. 20] (Declaration of Terry G. Myers). In May 2014, Jmes Maguire, who had served as ManTech's Vice President of Financial Operations and Tecnical Services Group Compliance during the MRAP bidding competition, contacted Bonnie Cook (ManTech's Vice President or Business Operations) and told her that an investigator rom the Department of Deense's Oice of Inspector General had contacted him about a potential raud relating to the MRAP Contract. A ew months later, on October 7, 2014, Kevin Cody sent an e-mail titled "New Concens; CLSS and previous TACOM contracts" to Terry Myers, who understood that Cody was claiming that "there had been some sort of 12 The record relects that Kevin Cody (i) authored e-mails to MnTech's intenal compliance department expressing his complaints and concens on (a) April 29, 2014 [Doc No. 55, Ex. 14]; (b) May 13, 2014 [id., Ex. 16] ; (c) July 15, 2014 [id., Ex. 17]; (d) July 23, 2014 [id., Ex. 18]; (e) October 7, 2014 [id., Ex. 19]; () October 31, 2014 [ibid.]; and (g) December 16, 2014 [ibid.]; and (ii) had private meetings with ManTech executives about his complaints and concens on (h) May 5, 2014 [id., Ex. 15]; {i) June 27, 2014 [id., Ex. 17]; and G) October 8, 2014 Compl. 248. 13 . unspeciied FAR violation or raud with respect to ManTech's merger of its GCO and I S cost segments in 2013. " [Id at 1]. Myers subsequently discussed with Cody the concens expressed in this e-mail. On November 21, 2014, the Codys' original complaint in this action was unsealed. On December 23, 2014, counsel or the Codys sent a letter to ManTech instructing it to preserve evidence related to the Codys' claims against ManTech or violations of the FCA and related statutes. On January 8, 2015, the Codys, by counsel, served ManTech with a copy of the original complaint. Four days later, on January 12, 2015, ManTech inomed the Codys that it was perorming an intenal investigation into whether ManTech had committed any FCA violations nd that it was placing them on paid administrative leave during the pendency of that investigation. The decision to place the Codys on leave ws made by ManTech CFO Kevin Phillips, in consultation with Mrgo Mentus (in human resources) and outside consel. On March 6, 2015, ManTech notiied Kevin Cody that he would be terminated efective March 20, 2015, bsed on the Army's drawdown and concomitant "reduction in orce. " This decision was made by the same ree individuals who had made the decision to place Cody on administrative leave, and was additionally approved by ManTech's chairman and CEO, George Pedersen. ManTech did not consider Kevin Cody, despite his qualiications, or two positions within ManTech as an altenative to termination: as Army Business Unit President, a position vacant since January 2015; and or a new business unit leadership position or which ManTech posted an opening on March 23, 2015, three days ater Cody was terminated. Three months later, on June 17, 2015, ManTech inormed Muge Cody that she would be teminated efective 14 July 1, 2015, also due to the reduction in orce, a decision made by Phillips, Mentus, Keee, and outside counsel. II. STANDARD OF REVIEW Under Federal Rule of Civil Procedure 56, smm ry judgment is appropriate only if the a record shows that "there is no genuine issue as to any material act and that the moving paty is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Libery Lobby, Inc., 477 U.S. 242, 247-48 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 958- 59 (4th Cir. 1996). The party seeking smmry judment has the initial burden to show the absence of a genuine issue of material act. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material act exists "if the evidence is such that a reasonable jury could retn a verdict or the nonmoving party. " Anderson, 477 U. S. at 248. Once a motion or summary judgment is properly made and supported, the opposing party has the brden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The acts shall be viewed, and all reasonable inerences drawn, in the light most avorable to he non-moving party. Anderson, 477 U. S. at 255; see also Lettieri v. Equant Inc., 478 F. 3d 640, 642 (4th Cir. 2007). To defeat a properly supported motion or summary judment, the non-moving party "must set orth speciic acts showing that there is a genuine issue or trial." Anderson, 477 U. S. at 248. Whether a act is "material" is detemined by the substantive law, and "[o]nly disputes over acts that might afect the outcome of the suit under the govening law will properly preclude the entry of summary judgment. " Ibid. 15 III. NLYSIS Plaintifs assert retaliation claims in each of the Complaint's two counts: under the FCA, 31 U.S.C. § 3730(h) (Count 1); and under the DCWPA, 10 U.S.C. § 2409 (Count 2). The FCA's anti-retaliation provision provides: Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of laul acts done by the employee, contractor, agent or associated others in therance of an action under this section or other eforts to stop 1 or more violations of this subchapter. 31 U.S.C. § 3730(h)(l ). 13 The DCWPA similarly prohibits retaliation "or disclosing . . . a violation of law, rule, or regulation related to a Department [of Deense] contract (including the competition or or negotiation of a contract) or grant." 10 U.S.C. § 2409(a}(l )(A). 1 4 13 In its curent orm, 31 U.S.C. § 3730(h) relects substantive amendments implemented by the Fraud Enorcement and Recovery Act of 2009 ("FERA"). The Fourth Circuit has smmarized these amendments as ollows: Since the distinct possibility standard was adopted, § 3730(h) has been amended twice, once in 2009 and again in 2010. The 2009 amendment struck the reerence to a FCA action altogether, describing protected activity as "lawul acts done . . . in therance of other eforts to stop 1 or more violations" of the FCA. Fraud Enorcement and Recovery Act of 2009, Pub. L. No. 111-21, 123 Stat. 1617, 1624-25 (2009). The new provision was grmmatically incorrect, however, as the word "other" was extraneous-the provision only covered "other eforts to stop [a] violation." Id. Congress mended § 3730(h) again in 2010, Dodd-Frank Wall Street Reom and Consumer Protection Act, Pub. L. 111-203, § 1079A(c), 124 Stat. 1376, 2079 (2010), adding back some of the previously excised language. The provision now covers employee conduct "in therance of n action under this section or other eforts to stop 1 or more violations of this subchapter." 31 u.s.c. § 3730(h). Carlson v. ynCorp Int'! LLC, No. 14-1281, --- F. App'x ---, 2016 WL 4434415, at *3 (4th Cir. Aug. 22, 2016). 14 10 U.S.C. § 2409 provides, in pertinent part, as ollows: 16 Importantly, under the DCWPA, a whistleblower employee is entitled to relief or retaliation if he or she demonstrates that a protected activity was a "contributing actor" in the "personnel action which was tken" and that "the oficial taking the personnel action knew of the . . . protected activity. " 5 U. S.C. § 122l (e)(l ). 15 The employee may demonstrate such a causal connection through circumstntial evidence such as temporal proximity, but the employee is not entitled to relief if the employer "demonstrates by clear and convincing evidence that it would have taken the sme personnel action in the absence of such disclosure. " Id. § 122l (e)(l )(B), (2). Based on these statutes, in order to establish aprimafacie case of unlawul retaliation, a whistleblower plaintif must establish that: (1) he engaged in "protected activity"; (2) his employer knew or was reasonably on notice that he was engaged in protected activity; and (3) his (a) Prohibition of reprisals(1) n employee of a contractor . . . may not be discharged, demoted, or othewise discriminated against as a reprisal or disclosing to a person or body described in paragraph (2) inormation that the employee reasonably believes is evidence of the ollowing: (A) Gross mismanagement of a Department of Deense contract or grant, a gross waste of Department unds, n abuse of authority relating to a Department contract or grant, or a violation of law, rule, or regulation related to a Department contract (including the competition or or negotiation of a contract) or grant. (2) The persons and bodies described in this pararaph are the persons and bodies as ollows: (G) A management oficial or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct. 15 5 U. S.C. § 1221(e) is made applicable to retaliation claims under 10 U. S.C. § 2409 through the operation of 10 U. S.C. § 2409(c)(6), which provides that "[t]he legal burdens of proof speciied in section 1221(e) of title 5 shall [control] ny . . judicial . . . proceeding to determine whether discrimination prohibited under this section has occurred. " Further, a retaliation claim under 10 U. S. C. § 2409 or the FCA is subject to the McDonnell Douglas burden-shiting analysis developed under Title VII of the Civil Rights Act. See Dillon v. SAIC, Inc. , 2013 L 324062, at *9 (E.D. Va. 2013) (citing McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973)). 17 . employer took adverse action against him as a result of his protected activity. See Glynn v. EDO Corp., 710 F.3d 209, 214 (4th Cir. 2013); Eberhardt v. Integrated Design & Const., Inc. , 167 F.3d 861, 866 (4h Cir. 1999). A. "Protected Activiy" As to the irst element of the prima facie test, there are two types of "protected activity" under the FCA as amended by the Fraud Enorcement and Recovery Act ("FERA "). The irst is conduct "in urtherance of an [FCA] action." The second is conduct constituting "other eforts to stop 1 or more violations" of the FCA. 31 U.S.C. § 3730(h)(l ); see supra n.13. The Court has ound no case interpreting the scope of "protected activity" under 10 U.S.C. § 2409 but given the DCWPA's statutory language ("disclosing . . . a violation of law, rule, or regulation"), the DCWPA would appear to include as "protected activity" any conduct protected under the FCA. The iling of a lawsuit or administrative complaint claiming a violation of the FCA or similar statutes, as plaintifs have done, is clearly "protected activity" under either the FCA as amended by FEA or the DCWPA. But the iling of a lawsuit is not required under either statute, and plaintifs' retaliation claim is based not only on the iling of this action, but also on their intenal communications within ManTech beore the iling of the action, speciically during the period rom March through April 2012, and again beginning in January 2013, ater the MRAP Contract was awarded to ManTech. In determining whether such intenal communications constitutes "protected activity," courts have ocused on two aspects of the relied-upon conduct. The irst aspect is whether an employee, no mater how he characterizes the employer's conduct, had a good aith belief that the employer was engaging in unlawul conduct. In making that assessment, a cout will 18 consider whether (1) the employee in good aith believes, and (2) a reasonable employee in the same circumstances would believe, that the employer is committing raud against the Govement. See .S. ex rel. Wilson v. Graham Cny Soil & Water Conser. Dist., 3 67 F. 3d 245, 255 (4th Cir. 2004), rev 'd on other rounds, 545 U. S. 409 ( 2005); 16 see also Allen v. Admin. Review Bd., 514 F. 3d 4 68, 477 (5th Cir. 2008) ("[t]he objective reasonableness of a belief is evaluated based on the knowledge available to a reasonable person in the same actual circumstances with the same training and experience as the aggrieved employee"). The second aspect is whether the employee has used language that, under the relevant circumstances and within the speciic context in which the commnications were made, puts an employer on reasonable notice that the employee is bringing to its attention conduct that qualiies as "protected activity" under either the FCA or the DCWP A; in other words, language suficient to let an employer know that its whistleblower employee is actually blowing a whistle. One measure to detemine whether this requirement is satisied is the "distinct possibility" standard, described as ollows: [A ]n employee tasked with the intenal investigation of raud against the govement cnnot bring a section 3730(h) action or retaliation unless the employee puts the employer on notice that a qui tam suit under section 3730 is a reasonable possibility. Such notice may be accomplished by expressly stating an intention to bring a qui tam suit, but it may also be accomplished by any action which a actinder reasonably could conclude would put the employer on notice that litigation is a reasonable possibility. Such actions would include, but are not limited to, characterizing the employer's conduct as illegal or raudulent or recommending that legal counsel become involved. These types of actions are suicient because they let the employer now, regardless of whether the employee's job duties include investigating potential raud, that litigation is a reasonable possibility. 16 A similar approach is utilized in assessing retaliation claims under other statutes. See, e.., Welch v. Chao, 53 6 F. 3d 269, 278 n.4 (4th Cir. 2008) (Sarbanes-Oxley); Jordan v. Alt. Res. Corp. , 458 F . 3d 33 2, 340-41 (4th Cir. 2006) (Title VII). 19 Eberhardt, 167 F.3d at 868. But post-FEA, the 'distinct possibility' standard "is no longer the (only) standard or identiying protected activity under [the FCA]." Carlson, 2016 WL 4434415, at *4. In that regard, the Fourth Circuit recently concluded, albeit "without deciding," that "the second prong of §3730(h) [that added in 2009 by FERA] makes 'eforts to stop 1 or more violations' protected activity where those eforts are motivated by an objectively reasonable belief that the employee's employer is violating, or will soon violate, the FCA." Ibid. 17 (citing Fans/ow v. Chi. M Ctr. , Inc. , 384 F.3d 469, 480 (7th Cir. 2004)); 18 see also Wilkins v. St. Louis fg. Hous. Auth. , 314 F .3d 927, 933 (8th Cir. 2002); Moore v. Cal. Inst. o Tech. Jet Propulsion Lab. , f 275 F.3d 838, 845 (9th Cir. 2002); Jones-McNamara v. Holzer Health Sys. , 630 F. App'x 394, 399-400 (6th Cir. 2015). Likewise, protected activity under the DCWPA would include a "disclosure" that places an employer on objectively reasonable notice that what is being disclosed is a "violation of a law, rule, or regulation related to a Department [of Deense] contract (including the competition or or negotiation of a contract) or grant." 10 U.S.C. § 2409(a)(l ). For these reasons, expressions of concen that do not raise the reasonable prospect of alse or raudulent claims under the FCA, or violations of an applicable law, rule, or regulation under the DCWPA, do not constitute "protected activity." See Zahodnick v. Int'/ Bus. Mach. Corp., 135 F.3d 911, 914 (4th Cir. 1997) ("[s]imply reporting [] concen of a mischarging to the govement to [one's] 17 That standard would appear to duplicate the "objectively reasonable, good aith belief' requirement, discussed as the irst aspect of any "protected activity" analysis. 18 The Fourth Circuit has also noted that "an objectively reasonable belief stndard aligns with our treatment of similarly structured whistleblower provisions in Title VII, the Age Discrimination in Employment Act, nd the Americans with Disabilities Act." Carlson, 2016 WL 4434415, at *4. 20 supervisor does not suice to establish that [the employee ] was acting 'in furtherance or a qui tam action" or the purposes of the FCA). B. Retaliation Based on Conduct Other than the Filing of this Action. Upon consideration of the record, measured against these standards, the Court irst concludes as a matter of law that plaintifs have not produced evidence suicient to establish that they engaged in "protected activity" other than the iling of this action. First, none of plaintifs' communications beore January 2013 would have caused ManTech to understand or be on objectively reasonable notice that (i) litigation was a "distinct" or "reasonable" possibility; (ii) plaintifs were engaged in eforts motivated by an objectively reasonable belief that ManTech was violating, or would soon violate, the FCA; or (iii) plaintifs were disclosing a "violation of an applicable law, rule, or regulation." While the Codys may have subjectively believed that the conduct in which ManTech was engaging was "illegal" or "raudulent," and that their communications put MnTech on notice that what the Codys were describing was-in the words of Kevin Cody-" deinitely raud," the Codys, by their own admission, never characterized the accounting issues they raised as raudulent, illegal, or even improper. The substance of their communications would thereore not have reasonably placed MnTech on notice of those beliefs. Rather, plaintifs raised those issues as items of "concen" within the context of multiaceted accounting issues, business judgments, market condition projections and changing Army troop deployments. At most, plaintifs' communications constituted "simply reporting a concen of mischrging to the govement to [one's] supervisor. " See United States ex rel. Garzione v. PAE Gov't Servs., Inc., --- F. Supp. 3d ---, 2016 WL 775780, at *8 (E.D. Va. Feb. 25, 2016) (collecting cases). 21 With respect to communications ater January 2013, the Court inds that certain of plaintifs' communication with ManTech's compliance oficers placed ManTech on notice that plaintifs were raising issues of potentially illegal or unlaul conduct, as evidenced by ManTech's own intenal investigation into such issues. Insofar as plaintifs claim retaliation ater January 2013, they thereore satisfy the second prong of the retaliation analysis. Nevetheless, the Cout concludes on the record beore it that, as a mater of law, the issues of improper conduct that plaintifs' complaints caused ManTech to investigate ater Jnuary 2013 were not based on an objectively reasonable belief that unlawul, improper, or raudulent conduct had or would occur. Plaintifs have thereore ailed to satisfy the irst prong of the retaliation analysis. In that regard, it is undisputed that during the bidding process and beore the awarding of the MRAP Contract, ManTech ully disclosed to TACOM the cost of the proposed "retention premium" or incumbent employees that caused plaintifs' concens. Far rom concealing the true costs, as plaintifs allege, ManTech, in response to END 039B, provided a detailed breakdown explicitly stating that the "impact of the proposed beneit change" amounted to $37.9 million over outeen months. In testimony, Kevin Cody acknowledges that he was aware of ManTech's response to END 039B nd that the $37.9 million amount quoted in END 039B was correct. Likewise, it is undisputed that the Govement knew and approved of ManTech's creation of the GCO cost segment in 2011, and knew that (i) the cost of the retention premium was accounted or as an indirect cost through the GCO cost center; (ii) ManTech consolidated the GCO cost segment with the I S cost segment in 2013; and (iii) the retroactive application of the ringe beneits rates was established through that consolidation. See [Doc. No. 22 55, Ex. 20] (Declaration of Terry Myers). For these reasons, the Court concludes as a matter of law that plaintifs did not engage in "protected activity," other than the iling of this action. C. Retaliation Based on this Action It is uncontested that the Codys' iling of this lawsuit constitutes "protected activity," that ManTech was on notice of the lawsuit, and that the Codys' terminations ater the iling of that lawsuit constitute "adverse" employment actions. The remaining issue is whether plaintifs have presented evidence suficient to establish that their teminations were causally related to this lawsuit. A whistleblower plaintif must prove by a preponderance of the evidence that the alleged protected activity was a "contributing actor" in the adverse employment action tken against him or her. 5 U.S.C. § 1221(e)(l ); Feldman v. Lw Eforcement Assocs. Corp., 752 F.3d 339, 344 (4th Cir. 2014); Pff nbarger v. Engiliy Corp., 151 F. Supp. 3d 651, 658 (E.D. Va. 2015). e As the Fourh Circuit stated in Feldman: A contributing actor is any actor, which alone or in combination with other actors, tends to afect in any way the outcome of the decision. This element is broad and orgiving, and this test is speciically intended to oveule existing case law, which requires a whistleblower to prove that his protected conduct was a 'signiicant,' 'motivating,' 'substantial,' or 'predominant' actor in a personnel action in order to oven that action. Temporal proximity between the protected activity nd the adverse action is a signiicant actor in considering a circumstantial showing of causation, the causal connection may be severed by the passage of a signiicant amount of time, or by some legitimate intervening event. 752 F.3d 339, 348 (intenal citations, quotations, and alterations omitted). Under this "broad nd orgiving" standard, a plaintif hs "a rather light burden of showing by a preponderance of the evidence that the [protected] activities tended to afect his termination in at least some way." Ibid 23 Although ManTech does not dispute that it was aware of the Codys' lawsuit, it is unclear rom the record precisely when ManTech irst knew of or suspected that the lawsuit had been iled, and by whom. In that regard, the record establishes that the Codys iled their lawsuit on December 4, 2013, under seal. In May 2014, six months later, and while the Govement was deciding whether to intervene, a Deptment of Deense OIG investigator contacted James Maguire-a ormer MnTech executive involved in the MRAP Contract procurement- "about a potential raud under the MRAP contract." 19 Maguire in n relayed his information to Bonnie Cook, another ManTech executive. At that time, Cook was aware of the Codys' ongoing expressions of concen with regrd to the MRAP Contract in spring 2012. From May 2014 until the time of their termination, the Codys continued to raise issues concening the MRAP Conract nd retaliation against them, speciically on May 5, May 13, June 27, July 15, July 23, October 7, October 8, October 31, and December 16. See supra n.12. The Complaint was unsealed on November 21, 2014. On December 23, 2014, MnTech received a letter rom the Codys' counsel directing it to preserve evidence relating to potential FCA claims against ManTech. On January 8, 2015, ManTech was served with the lawsuit. ManTech placed both Codys on administrative leave with pay on January 12, 2015, an action that ManTech concedes was in response to the iling of the lawsuit and the intenal investigation it represented that iling triggered, terminated Kevin Cody in March 2015, and teminated Muge Cody in July 2015. The Codys contend that when all the acts and circumstances pertaining to their interactions with ManTech over a period of years are viewed in a light most avorably to them, both beore and ater the iling of the this action, a reasonable trier of act could conclude that 19 The record does not relect when in May 2014 this interaction occurred. 24 their iling of this qui tam lawsuit was, at least some way, a contributing actor in ManTech's decision to terminate them. In support of this position, plaintifs point to (i) the several instances in which ManTech altered their duties and responsibilities ater they aggressively and repeatedly raised their concens about the MAP procurement and possible retaliation (regardless of whether those communications and employment actions constituted "protected activity" or "adverse" employment actions, respectively); (ii) ManTech's placing them on administrative leave, which MnTech concedes was related to the lawsuit; (iii) ManTech's justiication or placing them on administrative leave, which the Codys contend was a pretext or retaliation (viz. the need to conduct n intenal investigation it had already conducted); (iv) their increased vulnerability to a termination because of their reduction in responsibilities and administrative leave status; (v) the availability of positions within ManTech to which at least Kevin Cody could have been transerred in compliance with company policy concening an employee whose position is eliminated; and (vi) the act that the Codys had spared over the MAP Contract with at least some of the individuals involved in the decision to teminate their employment. ManTech contends that plaintifs have ailed to present evidence suicient to establish the required causal connection between the iling of their lawsuit nd their termination. In that regard, ManTech argues that the Codys' prior complaints nd ManTech's personnel actions, including placing the Codys on administrative leave, are essentially irrelevant since, other thn he iling of the lawsuit, the Cody's did not engage in "protected activity" and none of ManTech's personnel actions other than terminating the Codys constitute a cognizable or materially "adverse " employment action or the puposes of a retaliation claim. See Burlington N & Santa Fe Ry. Co. v. White, 548 U. S. 53, 68 (2006); Sturdivant v. Geren, Case No: I :09-cv- 25 586, 2009 WL 4030738, at *6 (E.D. Va. 2009) ("placing an individual on paid administrative leave does not constitute an adverse employment action in the discrimination context or in the retaliation context"). ManTech also contends that the "temporal proximity," or time gap, between the Codys' temination and ManTech's knowledge that the Codys had iled a lawsuit is too great to establish a prima facie case of causation. See, e. g. , Bush v. Hagel, Case No. 1:12-cv1483, 2014 WL 345650, at *8 (E.D. Va. 2014) ("[t]here is no temporal proximity between [realiation] and any protected activity, which last occurred approximately nine months earlier"). ManTech ther points to other highly probative acts undermining the Codys' claims of retaliation, such as their receiving routine salary increases, bonuses, and other beneits rom ManTech throughout their emploment, including ater the iling of the lawsuit or ater ManTech arguably knew about the lawsuit; and that the primary decision maker as to the Codys' termination, ManTech's CFO Kevin Phillips, was not signiicantly involved in the Codys' communications concening the MRAP Contract. Lastly, as a sae harbor, ManTech contends that plaintifs' terminations were dictated by legitimate business reasons, including the U. S. Army's drawdown in the Middle East, ManTech's concomitant "reduction in orce" and the Army's elimination of Muge Cody's position as program manager, which resulted in not only her termination but also that of her deputy. While a reasonable actinder could very well conclude that plaintifs' termination had nothing to do with any protected activity, when the totality of the acts and circumsances relected in the extensive record are viewed most avorably to plaintifs, together with all reasonable inerences, the Court cannot conclude that ManTech is entitled to that determination as a matter of law. The Court's conclusion is underscored by the legal standard of causation 26 applicable to plaintiffs' retaliation claim when compared to the "clear and convincing" standard applicable to ManTech's deense. See Pu enbarger, 1 5 1 F. Supp. 3 d at 6 5 8 ("[i]f the plaintiff f establishes a primaf acie case [of retaliation], then the defendant may prevail only if it rebuts the employee's primaf acie case by demonstrating by clear and convincing evidence that the employer would have taken the same personnel action in the absence of the protected activity") (internal quotations and citations omitted). For these reasons, the Court declines to grant summary j udgment in favor of ManTech on plaintiffs ' claim that the filing of this action was a contributing factor to their terminations. IV. CONCLUSION For the above reasons, the Court inds and concludes that, as a matter of law, plaintiffs did not engage in any "protected activity" other than the filing of this action and that there are genuine issues of material act concening whether ManTech's termination of their employment was causally related to the filing of this action. Accordingly, ManTech's Motion for Summary Judgment [Doc. No. 54] will be granted as to plaintiffs' claims or retaliation for any conduct other than the iling of this action and will otherwise be denied. The Court will issue an Order. The C lerk is directed to orward a copy of this Memorandum Opinion to all counsel of record. Alexandria, Virginia September 1 4, 20 1 6 27
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