The district court granted the defendant’s motion for summary judgment in a lawsuit alleging illegal employment retaliation under the FCA and Defense Contract Workers Protection Act. The plaintiff alleged she was fired for expressing concerns about a potential conflict of interest related to her employer’s involvement in preparing a bid for a follow-on contract, when it was the incumbent on the requirement. First, the court found the plaintiff was not covered by the DCWPA, as the contract at issue had been awarded before the act was amended to cover NASA. Because the defendant’s contract had not been awarded by DoD, the plaintiff was not covered by the earlier version of the statute. The court did find the purported protected activity could be considered actionable under the FCA, but concluded that too much time had passed between the plaintiff’s activity and her termination, and that there was no evidence the manager responsible for her termination had knowledge of the activity.
Mary Dobbins Katerheinrich filed suit against Al-Razaq Computing Services for terminating her employment in violation of the False Claims Act and Defense Contract Workers Protection Act. The defendant moved for summary judgment.
The relator was employed by Al-Razaq as a program lead and was assigned to work on a contract with NASA. When the follow-on contract came up for bid, Al-Razaq formed a joint venture with A Squared Joint Venture to bid on the work. The relator was offered a position with the project and asked to help prepare the bid, but she declined, believing that it would be a conflict of interest to help A2JV.
The relator believed there was a conflict because she had been involved in a similar situation under a different NASA contract. While employed with a different contractor, the relator was a member of the incumbent contract team and was not permitted to participate in bid preparation for the follow-on, as NASA warned the contractor it would be disqualified from bidding unless the incumbent team and proposal team were separated by firewall.
The relator expressed concern about the apparent conflict, but was told the NASA contracting officer approved her participation in bid proposal preparation. However, the relator remained concerned and address the issue with a different CO. This CO agreed that a firewall was necessary. The relator informed her superiors, but no action was taken to mitigate the OCI. A2JV subsequently submitted its proposal, but the bid was disqualified from consideration due to the contractors’ failure to address the OCI. A2JV protested with GAO, which dismissed the challenge.
During this period, the relator’s work performance came under scrutiny. Management found that the relator had been inaccurately reporting time for her employees who had worked fewer than 40 hours in a work week and that she had been slow to fill vacancies on her team. Further, the company’s customers had noticed the vacancies and complained. Because of the vacancies, the defendant had to give the government a credit on its contract. The plaintiff acknowledged the timekeeping errors but was not informed that she was filling positions too slowly and was not reprimanded for any previous errors.
Nonetheless, the defendant decided to terminate the plaintiff. During the termination meeting, the plaintiff was informed about the problems filling positions on her team. The relator filed a complaint with NASA, arguing that her employment was terminated arbitrarily because she reported that a conflict of interest may exist when the defendant participated in bidding for the contract. However, the NASA Office of Inspector General concluded she was not protected under 10 U.S.C. § 2409, or the Defense Contract Workers Protection Act. This action followed.
The defendant moved for summary judgment, arguing the plaintiff had not made a claim upon which relief could be granted, as she did not engage in activity protected under 10 U.S.C. § 2409, or the DCWPA. The defendant also argued the claim is governed by the 2008 version of the DCWPA, rather than the 2013 version.
First, the court examined protected activity under 10 U.S.C. § 2409, which covers employees who report illegal behavior related to a government contract, such as a violation of law, rule, or regulation. The 2008 version of this statute covers only Department of Defense contracts or grants, while the present iteration was expanded to NASA.
The court agreed that the more recent version of the DCWPA did not apply to the plaintiff, because the contract under which the plaintiff was employed was awarded two years before the effective date.
The plaintiff argued that she was concerned about potential fraud related to the follow-on contract, which was created in 2016. However, the court concluded that the focus of her concerns—the lack of a proper firewall—was related to the incumbent contract. The defendant never entered into the latter agreement. Because the 2008 version of the DCWPA applied, the court found the plaintiff did not engage in a protected activity under the statute.
The defendant also moved for summary judgment on the retaliation claim under the FCA, arguing that her conduct was not protected by the statute. Alternatively, the defendant argued there was no causal relationship between the relator’s activity and her termination. Finally, even if the plaintiff could overcome those elements, the defendant argued the plaintiff cannot overcome its legitimate nonretaliatory reasons for its decision, nor can she establish evidence of pretext.
The court found a reasonable jury could find the plaintiff had an objectively reasonable belief that there was a potential violation of the FCA if her employer proceeded to bid on the contract without instituting a firewall or another type of OCI mitigating procedure. The plaintiff actively tried to alert her superiors about her concerns and removed herself from the bid proposal process. She also contacted NASA, which agreed with her concerns. As the defendant was actively in the process of bidding on the new contract, a juror could find that the plaintiff had an objectively reasonable belief about potential fraud and she communicated this information “in an effort to stop a potential violation” of the FCA.
However, the court agreed the plaintiff had not established a causal connection. First, the court noted that the person who terminated the plaintiff did not have knowledge about the plaintiff’s involvement in bidding on the follow-on contract, until after her termination. While the plaintiff attempted to attribute the knowledge of one manager to another, the court found no evidence the information about her OCI concerns had been passed on to the person responsible for the termination. The court also found no evidence the manager responsible for the termination did not have independent knowledge of the plaintiff’s work performance, but had been informed by the managers responsible for the bid proposal.
Further, the court found the plaintiff’s arguments undermined by a lack of temporal proximity. Most of the plaintiff’s communications about the potential OCI had occurred in February 2016, but she was not terminated until August, some six months later. The court found this undermined the claim of retaliation. The plaintiff asserted she made many complaints over time, but the court found this unsupported by the evidence. Further, even if she had made such complaints, the defendant was disqualified from bidding for the follow-on work in May 2016, about three months before the plaintiff’s termination. The court found that time sufficient to undercut the element of temporal proximity.
