JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE.
Plaintiff-Relator Michele Coffman filed this qui tam action against Defendant the City of Leavenworth, Kansas ("the City"), alleging that it committed fraud on the federal government by making a false claim for reimbursement to the Federal Emergency Management Agency ("FEMA") and fraudulently billing federal agencies for sewage service. This matter is before the Court on the parties' cross motions
Summary judgment is appropriate if the moving party demonstrates "that there is no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law."
The moving party initially must show the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law.
Once the movant has met the initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."
Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy, and inexpensive determination of every action."
The following material facts are either uncontroverted or, if controverted, are construed in the light most favorable to the nonmovant.
The City is a municipal government in the State of Kansas. It operates a wastewater treatment plant (the "WTP") that provides sewage and wastewater treatment services for its residents. It also provides wastewater treatment services to the Veterans Administration ("VA"), the United States Army ("Army"), and the United States Department of Justice Bureau of Prisons ("BOP") pursuant to contracts it has with these federal agencies. The City entered into contracts with the Army and the BOP for sewage service in 1974, and with the VA in 1978.
At all times relevant to this litigation, Charles Klingler was the WTP's Superintendent, Michael McDonald was the City Engineer and Director of Public Works ("Public Works Director"), and Scott Miller was the City Manager. Chad Lough was the WTP's Assistant Superintendent from July 22, 2010 until June 20, 2012.
Plaintiff worked at the WTP from 2010 to 2013. She began as a Class I Operator, rose to the rank of Assistant Superintendent, and resigned after being demoted to a Class II Operator. She filed this qui tam action, alleging, inter alia, she was constructively discharged after she began asking questions about billing irregularities.
The Clean Water Act prohibits "the discharge of any pollutant by any person" into waters of the United States, except in accordance with certain provisions of the Act.
The EPA delegated to the Kansas Department of Health and Environment ("KDHE") the authority to regulate wastewater discharge in the state of Kansas.
During the relevant period, the City held two NPDES permits, one effective from 2008 through 2012, and the other effective from January 2013 through 2017. These permits allowed the City to discharge treated effluent from its wastewater treatment plant into the Missouri River. Under both NPDES permits, the City was required to report all bypasses to KDHE. A "bypass" is an intentional or unintentional diversion of a waste stream from any portion of a treatment facility.
Standard Condition 8 of the City's 2008 NPDES permit required the City to "at all times maintain in good working order and efficiently and effectively operate all treatment, collection, control systems or facilities to achieve compliance with the terms of this permit...."
On or around August 25, 2010, WTP operators discovered a break in a sewer line that crosses Five-Mile Creek in front of the WTP, between manholes AAB and ABA (also referred to as manholes 4284 and 4268). Then Assistant Superintendent Chad Lough reported the break to KDHE on August 25, 2010. His report stated: "Erosion caused large sections of concrete to slide down the hill and damage [the] pipe crossing the creek."
In response to the break, Superintendent Klingler directed operators to place an inflatable plug into the pipe inlet at Manhole AAB to stop backflow from the manhole from entering the line and escaping into the creek. The inflatable plug ruptured at some point and was replaced by sandbags.
On August 27, 2010, EPA representative Mike Boeglin called Public Works Director McDonald to discuss a citizen complaint about the broken line. McDonald told him the City was aware of the break, had reported it to KDHE, and had already undertaken efforts to plug the line.
On August 28, 2010, KDHE environmental scientist Vic Montgomery met with
On or about October 8, 2010, KDHE district engineer Helen Holm inspected the WTP for compliance with the City's NPDES permit.
On November 17, 2010, KDHE representative Chris Seeds sent Assistant Superintendent Lough an e-mail asking about the status of the broken line. Lough responded:
WTP operators were unable to successfully "camera" the broken line to determine the exact location of the break until January 25, 2011. In February 2011, the City contracted with Water Resource Solutions to prepare a design study for use in the project to repair the broken line and re-stabilize the creek bank.
In April 2011, the City received notice from the Army Corps of Engineers that it would experience flooding. The City undertook certain mitigation measures in anticipation of the flood to prevent damage to the WTP.
On June 7, 2011, Seeds asked Lough if the broken line had been repaired. Lough responded on June 13, "This repair has not been completed. I do believe that there are some proposals/plans available from the Engineering Dept. or Charles Klingler...."
On November 17, 2011, Linaweaver Construction capped the broken line by filling it with concrete. The work to cap the pipe took "a day or two."
From May 19, 2011 to June 14, 2011, the Missouri River flooded due to record snow and rainfall.
Kansas Department of Emergency Management ("KDEM") project specialist Les Money acted as the liaison between the City and FEMA, and was responsible for gathering the information compiled by FEMA for the PW. On December 11, 2011, FEMA representative Thomas Montgomery sent Les Money an email advising of his decision to include the broken sewer line in the PW and asked for: 1) a description of work completed; 2) copies of invoices for work completed; 3) manhole numbers at each end of the break; 4) size of the damaged pipe; 5) length of pipe to replace; 6) brief description of repair/replacement process; and 7) estimated cost of repair/replacement.
City Finance Director Dan Williamson decided not to submit a claim for repairs to the broken sewer pipe because that project had been on the City's improvement list prior to the flood. Ultimately, on December 13, 2011, the City submitted a claim to FEMA requesting $22,966.73, which was the cost of: 1) removing debris in the bar screen building; 2) removing excessive grit in the clarification chamber building; and 3) unclogging sewer lines in approximately 20 locations.
The WTP consists of primary clarifiers, trickling filters, final clarifiers, holding tanks for sludge, a belt press to dewater sludge, and a UV treatment building. The WTP utilizes three large vertical towers called "trickling filters," which contain microorganisms utilized in the wastewater treatment process. At some point in 2012, operators discovered that the bearings in Trickling Filters # 1 and # 2 were deteriorating, which periodically caused the distributor arms to stop turning. This, in turn, periodically caused water from inside the filters to escape through the bottom air vent, which was a bypass event.
Trickling Filter # 1 was eventually taken out of service because parts necessary to repair it were unavailable. The WTP placed Trickling Filter # 2 on an aggressive maintenance schedule. Following implementation of the maintenance schedule in July 2013, there were no further bypasses. KDHE district engineer Helen Holm made specific note of the issues with Trickling Filters # 1 and # 2 in her December 2014 inspection report, and determined that because the City had properly notified KDHE of the issues and was attempting to remedy them, the City was not in violation of Standard Condition 6 of its NPDES permit. Plaintiff's expert disagrees with Holm; he believes the City violated its 2008 permit any time a piece of equipment used in the treatment process malfunctioned and was unable to be fixed within a matter of a few days.
The WTP's holding tank mixers also experienced mechanical issues. Without operational mixers, the heaviest parts of the sludge sat at the bottom of the holding tank, while the lighter parts remained at the top. Consequently, sludge being processed by the belt press was inconsistent. After October 2013, the City replaced the mechanical mixers with an air bubbling system. The broken mixers had no effect on the City's compliance with its NPDES permit. Plaintiff's expert opines that the
The City owns a large industrial truck equipped with a high-pressure water jet cleaning system, as well as a vacuum system for clearing out objects (the "Vactor Truck"). When the vacuum component was used, operators drained some, but not all, of the truck's liquid contents into a manhole inside the plant for processing. From approximately 2007 to some point in 2012, operators deposited the solids and whatever liquid remained in the truck on the ground in one of two areas behind the gates of the WTP. Solids from the truck typically consisted of items such as personal hygiene products, plastic razors, gravel, rocks, and raw septage.
The area where solids were dumped was not enclosed, was not a lined pit, and contained no warning signs. The City never performed any laboratory analysis on the dumped material. The City did not inform the Army, the VA, or the BOP of its practice of dumping materials from the Vactor truck.
At some point, WTP operator Kris Bennetts called KDHE with concerns about the above procedure. According to Bennetts, KDHE's response was that the procedure he described was "no big deal" and was "an affirmation of this is not as big as what I'm thinking it is."
KDHE inspector Vic Montgomery performed a plant inspection on April 4, 2012. He observed operators dump the contents of the Vactor truck on the ground, before being removed. In his inspection report, Montgomery noted: "Vac trucks are dewater[ed] then the septage is dumped on the ground to be processed, please make sure to check that water does not migrate from the area."
Public Works Director McDonald first learned about the operators' practice of depositing the solids from the Vactor truck on the ground around the time he reviewed KDHE's 2012 inspection report. During the preliminary treatment process, wastewater passes through a large grate, referred to as a bar screen, which is designed to catch large items such as plastics or rags. These items, referred to as "screenings," are then typically placed into a bin to dry, before being sent to a landfill. Scott Huismann, Plaintiff's expert, has expressed the opinion that the contents of the Vactor truck were "sewage sludge," which, under 40 C.F.R. Part 503, was allowed to be dumped on the ground for up to two years without restriction or control. Although Huismann did not visit the site where the Vactor truck solids were allegedly dumped, he believes some of the material deposited on the ground may still remain there, in violation of 40 C.F.R. Part 503. Huismann admitted the distinction between preliminary treatment and removal of the Vactor truck solids was confusing and unclear, and could lead an operator to mistakenly equating the two.
Plaintiff began working at the WTP on April 29, 2010, as a Wastewater Treatment Class I Operator. Superintendent Klingler exempted Plaintiff from carrying an "on call" pager and sent her to training. She
On August 16, 2012, Plaintiff was promoted to Assistant Superintendent. Upon her promotion, Klingler became her direct supervisor. She was also informed that she was required to pass the KDHE Class IV certification exam within twelve months, and that her failure to do so would result in demotion or termination. KDHE's Class IV certification exam had a pass rate of approximately 33 percent at that time.
On March 26, 2013, City Manager Miller met with Plaintiff to discuss concerns raised by James Bennetts, a WTP operator, who had just resigned and raised concerns about operations at the WTP and unfair treatment by Klingler. The parties disagree about what was discussed at this meeting. Plaintiff says she told Miller that she believed the City had submitted a fraudulent claim to FEMA regarding the broken Pipe. Miller says she did not talk to him about a fraudulent claim to FEMA. He says their discussion was about Klingler's management style and operation issues at the plant.
On April 1 and 2, 2013, Miller visited the plant, talked to Klingler, and interviewed several other employees. On April 3, 2013, Klingler told Plaintiff that he would be busy with other things and she should contact him about plant-related matters by email.
On April 16, 2013, Klingler wrote a memo to Plaintiff about four issues: 1) the failure to follow bypass guidelines on April 1, 2013; 2) a request for a timeline regarding a complaint call; 3) new trickling filter procedures; and 4) a request for documentation for sick leave taken on March 18 through March 20, 2013 (the "Memo").
On April 18, 2013, Public Works Director McDonald met with Klingler to address concerns about his management style. McDonald directed Klingler to focus on listening to staff, communicating his expectations clearly, and allowing staff to do their jobs.
On April 19, 2013, Plaintiff met with Klingler and McDonald to discuss her response. McDonald told Coffman he had assisted Klingler in drafting the memo, and reiterated it had been sent for training. Plaintiff responded that she felt the memo had been sent as retaliation for meeting with Miller, which McDonald denied. The parties dispute what was said at the meeting. The meeting ended with Plaintiff asking to speak with City Manager Miller.
After this meeting, Plaintiff began receiving weekly "To Do" lists from Klingler, which contained tasks to be completed in addition to everyday operations. The items on the "To Do" lists fell within the scope of Plaintiff's job duties, but Plaintiff believes the lists included unnecessary work because Klingler never followed up on them. She also believes this was a scheme to cause her to work long hours to prevent
On June 12, 2013, Plaintiff met with Klingler and Lona Lanter, the Director of Human Resources ("HR Director"), regarding what would happen if she failed to pass the Class IV exam. Plaintiff had taken the Class IV exam in December 2012 and on May 9, 2013, failing both times. Lanter suggested Plaintiff take the Class III test as a "fall back." Plaintiff rebuffed the idea. She complained of retaliation and explained that her increased workload, which was filled with meaningless tasks, made it impossible for her to study for either tests. The City agreed to extend the deadline from August 16, 2013 to August 29, 2013, which would allow her to take the test scheduled on the 29th if necessary.
On August 2, 2013, Plaintiff took the Class IV exam again and failed. On August 8, she asked Klingler to extend the Class IV certification deadline from 12 months to 18 months.
On August 16, 2013, Klingler also presented Plaintiff with her first performance evaluation as assistant superintendent. On a scale from 0 (lowest) to 2 (highest), Klingler rated Plaintiff's performance as a "1," defined to mean "[a] totally competent employee," "[a] good steady contributor," and "[a]n employee that completes all stated job requirements in a timely and efficient manner" on each of the ten categories of review.
Plaintiff appealed Klingler's denial of her requested extension and her evaluation scores to Public Works Director McDonald and HR Director Lanter. Both McDonald and Lanter affirmed Klingler's decisions. McDonald explained that it was the City's policy not to extend certification deadlines other than for a few days to meet a testing schedule, which was exactly what the City did when it extended her deadline from August 16 to August 29.
On September 3, 2013, KDHE notified the City and Plaintiff that she had failed the August 29th Class IV exam. On September 12, 2013, the City notified Plaintiff she had been demoted to Operator II for failing to pass her KDHE Class IV certification exam within 12 months of her promotion. Plaintiff submitted her letter of resignation on October 4, 2013.
Ruby Maline is the City's Finance Director. Effective July 1, 1995, the City renewed its 1974 contract with the Army for the provision of sewage service, which is still in effect. The "Sewage Service Specifications" section of the contract states:
Each month from at least 2008 to present, the City has sent the Army an invoice for sewage service. The amount billed is based on three components: (a) annual operating and maintenance expenses; (b) overhead; and (c) reserves for repair and replacement.
The "annual operating and maintenance expenses" component has three sub-parts: (1) the total budget for operating the treatment plant for the current year, multiplied by the Army's percentage of plant flow; (2) the total budget for operating the collection system for the current year, multiplied by a percentage specified by the contract; and (3) adjustments to account for the difference between the Army's share of the prior year's budget and the actual amount spent during the prior year to operate the treatment plant and collection system, which is then prorated over 12 months. Because the Army receives a credit for any amount budgeted but not spent, the City does not retain money from the Army that is budgeted for the operation of the treatment plant or collection system, but not spent. The "overhead" component of the bill is calculated, pursuant to the contract, at 13 percent of the Army's annual charge for budgeted treatment plant and collection system expenses, subject to the same adjustment to account for the difference between budgeted and actual costs for the prior year, and then prorated over 12 months. The "reserves for repair and replacement" component is calculated at 21 percent of the replacement value of the treatment plant, divided by a projected useful life of 25 years and then prorated over 12 months.
On August 1, 1978, the City entered into a contract with the VA to provide it sewage services, which is still in effect today. An addendum to the VA contract states that the City agrees to comply with Section 308 of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) "relating to inspection, monitoring, entry, reports, and information, as well as other requirements specified in ... section 308 of ... the Water Act ... and all regulations and guidelines issued thereunder before the award of this contract." However, the section is preceded by the following language:
On November 15, 1974, the City entered into a contract with the BOP to provide it sewage services, which is still in effect today. The VA and BOP's monthly bills are calculated as a percentage of the total actual operating expenses, derived from each entity's flow readings.
The City seeks summary judgment on all five counts: Count I, violations of the Federal False Claims Act ("FCA"); Count II, violations of the anti-retaliation provision of the FCA; Count III, Whistleblower Retaliation under Kansas common law; Count IV, Common Law Retaliatory Discharge; and Count V, Negligent Infliction of Emotional Distress.
The FCA "covers all fraudulent attempts to cause the government to pay out sums of money."
The FCA, in pertinent part, makes any person liable who "knowingly presents, or causes to be presented, a false or fraudulent claim for approval,"
Materiality is a requisite element for factually false claims under 31 U.S.C. § 3729(a)(1)(B) and false certification claims.
Count I alleges the City submitted false claims for two types of payment: 1) a claim for flood damages to FEMA, and 2) monthly bills for wastewater services to the VA, Army, and BOP. The FEMA-claim falls under the factually false theory, while the monthly wastewater bills present a legal falsity.
Plaintiff asserts the City submitted two documents to FEMA that contained false statements: 1) an email dated December 12, 2011 (the "Email"), and 2) the Project Worksheet.
Plaintiff claims the Email violated 31 U.S.C. § 3729(a)(1)(B) because it contains a false explanation regarding the source of the damage to the Pipe.
The Email, in pertinent part, states:
Plaintiff's construction of the Email is untenable because she ignores the first paragraph and construes the second paragraph in a vacuum. The first paragraph explained that erosion caused the Pipe to become a waterfall; in other words, erosion had damaged the Pipe. The second paragraph explained the effects of the Flood to the already damaged Pipe — it broke at the outside of MH 4268, which allowed substantial water to enter the plant. These paragraphs thus reported two sources of damage to the Pipe, creek erosion and the Flood.
Although the Email did not expressly state the Pipe was damaged prior to the Flood, the fifth paragraph explained that the estimates to repair the erosion damage were obtained in early 2011, many months before the Flood triggered FEMA funding. This explanation, combined with the first two paragraphs, show a lack of intent to hide the fact that the Pipe had pre-Flood damage.
Plaintiff points to McDonald's testimony that he could not recall when or who from the City had informed FEMA about pre-Flood damage to the Pipe to suggest a genuine issue of fact exists regarding whether the City had informed FEMA of the pre-existing damage to the Pipe. The Email, however, establishes that the City informed FEMA of the erosion damage prior to submitting its claim.
The Court rejects Plaintiff's argument that providing estimates to repair the Pipe and stabilize the river bank was effectively engaging in a false communication to influence FEMA's decision to pay. Plaintiff conveniently ignores that the City did not submit a claim for these repairs. Additionally, Plaintiff offers no evidence that the Pipe repair estimates contained any false information. Nor does she provide evidence suggesting that the Pipe repair estimates were material to payment for damages from floodwater inflow.
On December 13, 2011, the City submitted a claim to FEMA in Project Worksheet # 90 ("PW90"), requesting $22,966.73 for damages due to flood water entering the WTP.
First, Plaintiff offers no evidence to suggest that FEMA requires the Flood be the sole cause for the damage. As discussed above, the Email establishes that the City informed FEMA of the pre-Flood damage to the Pipe. FEMA representative Tom Montgomery even suggested that the broken sewer line near the treatment be included in the PW.
Second, the Court fails to see how PW90 concealed the City's failure to undertake proper mitigation measures in anticipation of the Flood. The worksheet does not ask for information regarding mitigation efforts. There is also no evidence that FEMA requested this information from the City. These facts suggest that FEMA did not consider it material that floodwaters had entered the Plant from a pipe that had pre-Flood damage.
Third, it is undisputed that the broken Pipe caused no damage to the Bar Screen Building, the Clarification Building, and the sewer lines that required unclogging before the Flood. This fact suggests that the temporary measure of sandbags had done its job until it had to face the Flood's overwhelming force. Additionally, there is no evidence that FEMA asked the City to analyze the extent of damage to the WTP had the Pipe been capped with concrete prior to the Flood. These facts suggest that FEMA did not consider the efforts to repair the broken Pipe prior to the Flood material to its decision to pay PW90.
Fourth, Plaintiff cites 44 C.F.R. § 206.48 for the proposition that FEMA considers the City's mitigation measures material in deciding whether to approve payment of PW90. But that regulation sets forth the factors to consider when evaluating a Governor's request for a major disaster declaration. It does not set out FEMA's standards for approving claims for disaster relief. Plaintiff's reliance upon this regulation is thus misplaced.
In sum, the summary judgment evidence, even when viewed in the light most favorable to Plaintiff, fails to demonstrate that the City submitted a false claim to FEMA. Accordingly, the Court grants summary judgment to the City on the false-FEMA claim.
In Universal Health Services, Inc. v. United States ex rel. Escobar,
Plaintiff claims the City's monthly sewage bill to the Army, the VA, and the BOP impliedly certified that it had complied with all environmental laws as required by its contracts with these agencies. According to Plaintiff, "the City has committed scores of environmental violations during the [applicable] period" contrary to these certifications.
The City argues the monthly sewer bills do not support an implied false certification claim because: 1) none of the underlying service contracts state compliance with the CWA or any other environmental law was a prerequisite to payment; and 2) the bills do not contain any misleading half-truths.
In Escobar, the Supreme Court clarified how the materiality requirement should be enforced:
Applying the above rules, the Court concludes Plaintiff has failed to present evidence that would lead a reasonable trier of fact to find the implied certifications were material for payment. Here, although the underlying contracts had provisions that stated "the [City] shall operate [the WTP] in conformity with applicable law, rules, and regulations," there is no evidence that these government agencies considered regulatory compliance a condition of payment. And while that is not dispositive of materiality, it is relevant and supports the City's contention that the implied certifications were not material for payment. There is no evidence that these agencies would refuse to pay their sewer bills had they been aware of the environmental violations. And Plaintiff adduces no evidence of the City's knowledge as to whether these agencies would refuse to pay their monthly sewer bills based on regulatory noncompliance.
The sewer bills in this case did nothing more than demand payment for the federal agency's percentage of plant flow and the contracted percentage rates for annual operating and maintenance expenses. Plaintiff presents no evidence to suggest that the City did not treat the wastewater as represented in the monthly bills. In contrast, the Escobar defendant submitted claims for payment using payment codes that corresponded to specific services it represented that it had provided, such as individual therapy, family therapy, preventive medication counseling, and other types of treatment.
Plaintiff's reliance upon the Tenth Circuit's Lemmon
In sum, the summary judgment evidence, even when viewed in the light most favorable to Plaintiff, fails to demonstrate that the implied certifications in the monthly water bills were material for payment or that the City submitted these bills with the requisite scienter. Accordingly, the Court grants summary judgment to
Count II asserts the City "harassed, demoted, constructively discharged, caused severe emotional distress and otherwise discriminated against [Plaintiff], in whole or in part because of her lawful acts taken involving potential violations of the False Claims Act by Defendant."
The parties agree the McDonnell Douglas
To establish a prima facie case of FCA retaliation, a plaintiff must prove: 1) the employee engaged in protected activity; 2) the employer knew about the activity; and 3) the employer took adverse employment action against the employee for engaging in the protected activity.
Although the City acknowledges Plaintiff engaged in protected activity when she told City Manager Miller about the false claim to FEMA, the parties' arguments regarding notice requires the Court to determine whether her other reported concerns constituted protected activity. The City contends that Plaintiff cannot demonstrate that Superintendent Klingler, Public Works Director McDonald, and HR Director Lanter, the City employees who allegedly retaliated against Plaintiff, knew she had questioned the claims submitted to FEMA. The City argues only the City Manager knew of this protected activity and he made no adverse employment decisions against her. Plaintiff says the City's arguments contain two flaws: 1) her reports
In McBride v. Peak Wellness Center, Inc.,
Plaintiff's argument that her reports of maintenance issues, improper dumping, and regulatory noncompliance constitute protected activity has several problems. First, she cites no evidence to establish that she complained about the improper dumping to any City official. And although she may have discussed the trickling filter problems, the broken holding tank mixers, and the broken H2S monitors with Miller, McDonald, and/or Klingler, she did not tell them that these maintenance problems put the City in breach of its federal contracts, that she was going to report these problems to government officials, or that she intended to bring her own qui tam action. Second, plant maintenance and regulatory compliance are a part of her job as Assistant Superintendent, thus her concerns about them would not indicate to them that she was planning to report illegal activities or initiate a qui tam action. Under these circumstances, the Court finds that Plaintiff's reports of ongoing maintenance problems and regulatory noncompliance did not provide the City with sufficient notice that she was making them to stop the City from presenting false claims to these federal agencies. Simply put, there is no evidence other than that Plaintiff was doing her job by raising and attempting to fix these maintenance issues.
As to whether Miller's knowledge about Plaintiff's FEMA activity may be imputed to McDonald, Klingler, and
Plaintiff offers the temporal proximity between her meeting with Miller and the abrupt change in Klingler's demeanor and treatment of her as evidence that Miller told McDonald and/or Klingler about her FEMA activity. Plaintiff also testified that McDonald knew things she had disclosed only to Miller. The Court finds a fact issue exists regarding whether Miller relayed Plaintiff's FEMA fraud concerns to McDonald or Klingler, making summary judgment based on lack of notice of protected activity inappropriate.
To constitute an adverse employment action, "the employer's conduct must be `materially adverse' to the employee's job status."
In Johnson v. Weld County, Colorado,
Plaintiff argues that she suffered the following adverse employment actions in retaliation for complaining to Miller on March 26, 2013: (i) Klingler began overly scrutinizing her work; (ii) Klingler dramatically increased her workload, gave her long lists of busy-work type tasks to complete, and then ignored her;
Plaintiff presents the Memo as evidence that Klingler began overly scrutinizing her work. It is undisputed that this memo was issued after Klingler's management style had been criticized when WTP operator Bennetts quit at the end of March 2013 and after McDonald counseled Klingler to communicate his expectations to his subordinates. The memo itself contains no opprobrious or reproachful language. At one point, Klingler even complimented Plaintiff, writing, "You have done a good job of taking care of this during normal operations and have responded in a timely manner to calls regarding plant operations on the weekend."
Plaintiff next claims she suffered an adverse employment action when Klingler ordered her to contact him via email
The City argues that although Plaintiff had been appointed as Assistant Superintendent on August 16, 2012, due to her duties as the project representative of the UV building, she did not begin acting as full-time Assistant Superintendent until the end of 2012.
"Job duty assignments are neither automatically actionable nor categorically non-actionable."
Tom Schellhorn declared, in pertinent part:
The above evidence, when viewed in the light most favorable to Plaintiff, is sufficient to demonstrate that a reasonable person might have viewed her workload as intolerable. The Court finds a genuine dispute of material fact exists as to whether the amount of her workload was designed to dissuade her from engaging in the protected activity and thus constitutes an adverse employment action.
Klingler, McDonald, and Lanter all denied Plaintiff's request for a six-month extension to obtain her Class IV certification. The City states that it has not granted an extension of a deadline to pass the Class IV operator exam, other than for a few days to meet a testing schedule. This is exactly what the City did when it extended Plaintiff's deadline from August 16, 2013 to August 29, 2013.
Plaintiff further that her situation was different because another testing date was offered within the one-year window. But Plaintiff offers no details or evidentiary support. It is uncontroverted that Plaintiff's deadline to obtain Class IV certification was August 16, 2013, one year from the date of her promotion to Assistant Superintendent. Plaintiff took and failed the Class IV exam in December 2012, on May 9, 2013, August 2, 2013, and August 29, 2013.
It is uncontroverted that Plaintiff's demotion constitutes an adverse employment action.
A constructive discharge occurs when an employer, by discriminatory or retaliatory actions, makes or allows the employee's working conditions to become so intolerable that the employee has no other choice but to quit.
Plaintiff contends she was forced to quit because the campaign of harassment caused her extreme stress, anxiety, and depression.
In sum, the Court finds that under the circumstances, the Nitpicky Memo and the constructive discharge do not constitute materially adverse actions. Plaintiff has failed to adduce evidence of causality for
Proceeding to the next McDonnell Douglas step, the Court finds that the City has articulated a facially, nonretaliatory reason for demoting Plaintiff — she failed to pass the Class IV certification exam within twelve months of her promotion to Assistant Superintendent. The City argues that Plaintiff cannot show that its proffered, nonretaliatory reason for demoting her was pretext. Plaintiff argues pretext based on the following: 1) a former employer observed that Klingler had used the tactic of overworking employees to keep them from studying in the past to get rid of a problem employee,
A plaintiff shows "pretext by revealing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence."
"In determining whether the proffered reason for a decision was pretextual, we examine the facts as they appear to the person making the decision, not as they appear to the plaintiff."
The Court rejects Plaintiff's argument that the City's failure to provide a reason for Klingler's sudden change in attitude is evidence of pretext. Plaintiff cites no authority for this proposition. Additionally, the City did provide an explanation for Klingler's change in attitude — Bennett's resignation raised concerns about Klingler's management style, which resulted in McDonald counseling Klingler to communicate his expectations clearly and let his employees do their jobs.
The Court nonetheless finds a genuine dispute exists regarding whether the City's proffered reason for demoting Plaintiff was pretextual. The City argues that Plaintiff's theory that Klingler overwhelmed
The City's second argument echoes its argument that Klingler's work assignments were not adverse employment actions under the circumstances. For the same reasons stated in Section III. B.1.b)(ii) above, the Court finds that the affidavits from two former employees and Plaintiff's testimony raise a factual issue as to whether her work assignments were intended to provide the City with a pretext to demote her.
Finally, although temporal proximately alone is insufficient to demonstrate pretext, Plaintiff has provided other evidence to demonstrate pretext. Specifically, she presents the affidavits from two former employees, as well as her own testimony. The sudden change in Klingler's attitude almost at the exact time when Plaintiff reported her FEMA concerns to Miller, combined with the other evidence, could be viewed by the jury as evidence of pretext or of animus against Plaintiff for engaging in protected activity. Summary judgment is thus inappropriate on the FCA retaliation claim.
Under the "adequate alternative remedies" doctrine, bringing a statutory claim precludes a plaintiff from bringing a common law claim that seeks to redress the same harm as the statutory claim if the statutory remedy is adequate.
The City argues the FCA precludes Counts III and IV as they are duplicative of Counts I and II. Alternatively, the City argues these claims fail for the same reasons as the FCA claims. The City contends that in the Pretrial Order, Plaintiff made clear that her state law retaliation claims relate to reporting "misuse or fraud in the procurement or expenditure of government funds," and/or her reports "regarding fraud against government budgets."
The Court agrees with the City that Plaintiff's common law retaliatory discharge claim encompasses the same conduct and harms as her FCA retaliation claim. The Pretrial Order states that an essential element of Plaintiff's common law retaliation claim is that she "made good faith reports either internally or to a governmental agency regarding fraud against government budgets."
By contrast, the Pretrial Order states that an essential element of Plaintiff's Count III whistleblower retaliation claim is that "a reasonable person would have concluded that the Defendant was violating rules, regulations, or laws pertaining to public health, safety or general welfare."
The City seeks summary judgment on Count V, arguing: 1) this Court lacks subject matter jurisdiction over it because Plaintiff failed to provide pre-suit notice as required by K.S.A. 12-105b; and
K.S.A. 12-105b(d) provides:
"The notice requirements in K.S.A. 12-105b(d) are mandatory and a condition precedent to bringing a tort claim against a municipality."
The Court rejects Plaintiff's argument that she was unable to comply with K.S.A. 12-105b's notice requirement without violating the FCA's seal requirement. Although providing 105b-notice may alert the defendant of a pending criminal investigation
Likewise, the Court rejects Plaintiff's argument that she substantially complied with the 105b-notice requirement because the City received notice of Plaintiff's claims when this Court unsealed the original complaint and when the news media publicized them. K.S.A. 12-105b requires
Equally unavailing is Plaintiff's argument that the City's failure to attempt to settle her claims constitutes a denial of her claims which then allowed her to commence litigation. This argument puts the cart before the horse. The City cannot attempt to settle Plaintiff's claims if it was unaware of them. Moreover, K.S.A. 12-105b contains two triggering events: 1) the filing of the 105b-notice, or 2) the claimant's receipt of a denial of the claims. By requiring the claimant to receive notice from the municipality that it has denied the claim, the statute contemplates that the denial be affirmative or concrete so that a triggering date may be identified. Plaintiff's argument requires assuming a denial based on inaction, which is contrary to the statute's affirmative framework.
The Court concludes Plaintiff did not provide the City with pre-suit notice pursuant to K.S.A. 12-105b. The Court thus lacks subject matter jurisdiction over Count V. Accordingly, the City is entitled to summary judgment as to Count V. This conclusion renders discussion on the physical injury issue unnecessary.
The summary judgment evidence, even when viewed in the light most favorable to Plaintiff, fails to demonstrate that the City submitted a false claim to FEMA. Accordingly, the Court grants summary judgment to the City on the FEMA claim. Likewise, Plaintiff fails to adduce evidence to demonstrate that the implied certifications in the monthly water bills were material for payment or that the City submitted these bills with the requisite scienter. Accordingly, the Court grants summary judgment to the City on the implied false certification claim. For the same reasons, the Court denies Plaintiff's motion for summary judgment on the FCA-false claims (Count I).
Summary judgment is inappropriate on the FCA-retaliation claim (Count II) because issues of fact remain with respect to knowledge, materially adverse employment action, and pretext. Summary judgment is also inappropriate on Plaintiff's common law Whistleblower Retaliation claim (Count III) because her FCA retaliation claim does not provide an adequate alternative remedy for this claim and genuine disputes of fact remain as to it. However, the Court grants the City's motion for summary judgment as to Plaintiff's common law Retaliatory Discharge claim (Count IV) because her FCA claim does provide an adequate alternative remedy