U.S. ex rel. Battle v. Board of Regents for Ga.

• Decision Date: 25 October 2006
• Docket Number: No. 05-11187.,05-11187.
• Citation: 468 F.3d 755
• Parties: Lillie R. BATTLE, individually, UNITED STATES of America, ex rel., Plaintiffs-Appellants, v. BOARD OF REGENTS FOR THE STATE OF GEORGIA, Jeanette K. Huff, Oscar L. Prater, Defendants-Appellees, Cynthia Sellers, in their individual and official capacities as employees of the University System of Georgia, jointly and severally, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

468 F.3d 755

Lillie R. BATTLE, individually, UNITED STATES of America, ex rel., Plaintiffs-Appellants, v. BOARD OF REGENTS FOR THE STATE OF GEORGIA, Jeanette K. Huff, Oscar L. Prater, Defendants-Appellees Cynthia Sellers, in their individual and official capacities as employees of the University System of Georgia, jointly and severally, Defendant.

No. 05-11187.

United States Court of Appeals, Eleventh Circuit.

October 25, 2006.

COPYRIGHT MATERIAL OMITTED

William T. Mitchell, Robyn Oliver Webb, Cruser & Mitchell, LLP, Norcross, GA, Mina Rhee, Atlanta, GA, for Plaintiffs-Appellants.

Amy Levin Weil, Atlanta, GA, Adam Lowell Appel, Carlock, Copeland, Semler & Stair, LLP, Vincent A. Toreno, Christie, Toreno & Hatcher, LLP, Mark A. Barber, Annette Simelaro, Hall, Booth, Smith & Slover, P.C., Atlanta, GA, Michael E. Robinson, Douglas N. Letter, U.S. Dept. of Justice, Civ. App. Div., Washington, DC, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, and BLACK and FAY, Circuit Judges.

PER CURIAM:

Plaintiff Lillie Battle ("Plaintiff") appeals the district court's grant of summary judgment to Defendants Jeanette K. Huff and Oscar L. Prater ("Defendants"), against Plaintiff's First Amendment Retaliation and False Claims Act claims. We affirm.

I. Background

Taking the record in the light most favorable to the Plaintiff, these events are the facts as they occurred. Plaintiff worked in the Office of Financial Aid and Veterans Affairs ("OFA") at Fort Valley State University ("FVSU") between 1987 and 1998. In Spring Quarter 1995, while working as a work study supervisor and veterans affairs counselor, Plaintiff began to observe and document what she believed were fraudulent practices in the Federal Work Study Program. Plaintiff took notes and made copies of suspicious documents, which she stored in a safe-deposit box at home. In January 1996, the OFA was reorganized; and Plaintiff's position changed to financial aid counselor. As part of Plaintiff's employment duties, she was required to verify the completion and accuracy of student files as well as report any perceived fraudulent activity. Some student files previously handled by Plaintiff's supervisor, OFA Director Jeanette Huff ("Huff"), were transferred to Plaintiff. In examining these files, Plaintiff discovered "improprieties" pointing to what she believed was "Huff's fraudulent mishandling and mismanagement of Federal financial aid funds."

Plaintiff first confronted Huff about these improprieties in 1996, but Huff was dismissive and made no corrections. In late 1996, "overwhelmed" by the evidence of fraud, Plaintiff met with FVSU President Oscar Prater ("Prater") and told him that Huff was falsifying information, awarding financial aid to ineligible recipients, making excessive awards, and forging documents. Prater said nothing in response to Plaintiff's accusations and took no remedial steps. Plaintiff confronted Huff on other occasions with folders Plaintiff believed contained improprieties, but Huff made no corrections.

In March 1998, Plaintiff received a rating of "Exceeds Expectations"—the second highest available category—on her annual performance evaluation. The evaluation, however, also contained criticisms of Plaintiff's performance.¹ All of Plaintiff's prior evaluations had rated her performance as "Exceeds Requirements" or "Outstanding." Despite the high score, Plaintiff was not pleased with her 1998 evaluation.²

Plaintiff arranged a meeting with Huff's direct supervisor, FVSU Vice-President of Student Affairs Cynthia Sellers ("Sellers"), during which Plaintiff complained that her performance review was unfairly low. Sellers advised Plaintiff that, based on the score, Plaintiff's evaluation was not bad and that she would likely receive a raise. During the same meeting, Plaintiff told Sellers that "Huff was doing stuff that was going to get our institution in trouble" and awarding students aid for which they were ineligible. Plaintiff warned Sellers that she "was going to tell" unless changes were made. Sellers responded, "Do what you have to do." Plaintiff then scheduled a second meeting with President Prater to discuss her performance evaluation and "to reiterate the improprieties [of which she] had already informed him in prior years." During the meetings with Prater and Sellers, Plaintiff did not identify specific student files that had been mishandled or provide documentary evidence—which Plaintiff began collecting in 1995—to support her allegations of fraud.

On 25 May 1998, Plaintiff received a letter indicating the contract for her position as financial aid counselor would not be renewed effective 30 June 1998. The letter indicated Plaintiff had been approved for transfer to a position in a different FVSU department, but Plaintiff was later informed that no position was available. Plaintiff appealed the non-renewal of her contract through FVSU and the Board of Regents of the University System of Georgia, alleging her contract was not renewed because of her attempts to expose Huff's fraud. A grievance committee investigated, conducted an evidentiary hearing, and upheld the decision not to renew.

Plaintiff never spoke to anyone outside of FVSU about Huff's fraudulent activity until after she received notice that her contract would not be renewed. A month after receiving notice, Plaintiff met with the Department of Education ("DOE") and provided sixty-one pages of documents showing potential fraud and a thirty-two page analysis of student files.

From June 1998 to February 1999, the Georgia Department of Audits conducted an independent annual audit of FVSU that revealed serious noncompliance with federal regulations and risk factors for fraud. The auditors formed no opinion on whether the noncompliance was intentional. Subsequent audits also revealed similar problems. Huff transferred out of the OFA in July 1999 and resigned in May 2000. In April 2002, FVSU reached a $2,167,941 settlement with the DOE to settle questioned costs identified by the state auditors in audits from 1997-2000 and in lieu of further file review.

In June 2004, Plaintiff filed suit in the district court, alleging (1) she was discharged in violation of the First Amendment for reporting her concerns about fraud, and (2) Huff, Sellers, and Prater knowingly submitted false or fraudulent claims to the United States in violation of the False Claims Act ("FCA"), 31 U.S.C. § 3729 et seq.³ The district court concluded that Defendants were entitled to qualified immunity on Plaintiff's First Amendment claim because the motivation for Plaintiff's speech was unclear and preexisting case law did not give Defendants fair warning that Plaintiff's speech must be treated as "a matter of public concern" under the circumstances. The district court also concluded that Plaintiff's FCA claims were barred by 31 U.S.C. § 3730(e)(4)(A) because they relied on publicly disclosed information for which Plaintiff was not an "original source." The district court granted summary judgment on both claims. Plaintiff originally appealed the grant of summary judgment against Huff, Prater, and Sellers but later dismissed the appeal of claims against Sellers.

II. Discussion

We review a district court order granting summary judgment de novo, viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party. Cofield v. Goldkist, Inc., 267 F.3d 1264, 1267 (11th Cir.2001). Summary judgment is appropriate when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c).

A. First Amendment Retaliation Claim

For a public employee to sustain a claim of retaliation for protected speech under the First Amendment, the employee must show by a preponderance of the evidence these things:

(1) the employee's speech is on a matter of public concern; (2) the employee's First Amendment interest in engaging in the speech outweighs the employer's interest in prohibiting the speech to promote the efficiency of the public services it performs through its employees; and (3) the employee's speech played a "substantial part" in the employer's decision to demote or discharge the employee. Once the employee succeeds in showing the preceding factors, the burden then shifts to the employer to show, by a preponderance of the evidence, that "it would have reached the same decision ... even in the absence of the protected conduct."

Anderson v. Burke County, Ga., 239 F.3d 1216, 1219 (11th Cir.2001) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977)). The first two elements are questions of law designed to determine whether the First Amendment protects the employee's speech. The third element and affirmative defense are questions of fact designed to determine whether the adverse employment action was in retaliation for the protected speech. Id.

In determining whether a public employee's speech is entitled to constitutional protection, we must first ask "whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech." Garcetti v. Ceballos, ___ U.S. ___, 126 S.Ct. 1951, 1958, 164 L.Ed.2d 689 (2006) (citations omitted); see also Morgan v. Ford, 6 F.3d 750, 754 (11th Cir.1993) ("[W]e consider whether the speech at issue was made primarily in the employee's role as citizen, or primarily in the role of employee." (citations and internal quotations omitted)). "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their...