Garcia v. Prof'l Contract Servs., Inc.

• Decision Date: 11 September 2019
• Docket Number: No. 18-50144,18-50144
• Citation: 938 F.3d 236
• Parties: Esteban GARCIA, Plaintiff – Appellant, v. PROFESSIONAL CONTRACT SERVICES, INCORPORATED, Defendant – Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

938 F.3d 236

Esteban GARCIA, Plaintiff – Appellant,

v.PROFESSIONAL CONTRACT SERVICES, INCORPORATED, Defendant – Appellee.

No. 18-50144

United States Court of Appeals, Fifth Circuit.

FILED September 11, 2019

Jeffrey A. Feasby, Michael Jesse Perez, Esq., Perez Vaughn & Feasby, Incorporated, San Diego, CA, for Plaintiff-Appellant.

Shafeeqa Watkins Giarratani, Attorney, Derek Taylor Rollins, Olgetree, Deakins, Nash, Smoak & Stewart, P.C., Austin, TX, for Defendant-Appellee.

Before ELROD, WILLETT, and DUNCAN, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Plaintiff Esteban Garcia sued his former employer, Professional Contract Services, Inc., for retaliation under the False Claims Act. The district court granted summary judgment to the employer on the basis that Garcia failed to establish a prima facie case and, in the alternative, that he had failed to establish pretext. We reverse.

I.

The Javits-Wagner-O’Day Act provides employment opportunities for people with disabilities by promoting their access to federal contracts. Defendant Professional Contract Services, Inc. (the company)—a nonprofit company—makes use of these opportunities, providing custodial and grounds maintenance services on government-owned properties by employing individuals defined by the Javits-Wagner-O’Day Act as "severely disabled." The company hired plaintiff Esteban Garcia as an Operations Manager in September 2003. Garcia was later promoted to Senior Operations Manager, where one of his responsibilities was to ensure that the company was complying with its contracts with the government.

In April 2011, the company assigned Garcia to "Job 560," which called for custodial and ground services for sixteen separate U.S. Border Patrol locations in and around Laredo, Texas. The company says that it gave Garcia a copy of the federal contract for Job 560. But Garcia says that he received only certain portions of the contract. He says he never received the contract’s statement of work, a critical component of the contract outlining the locations to be serviced, the building plans, what needed to be done at each location, and the frequency with which each location was required to be serviced. Garcia says that he asked multiple people, including the company’s contracting specialist and Erick Rodas, the supervisor for Job 560 prior to Garcia, for a copy of the full contract, but never received it. Instead, Garcia says he had the company’s project manager show him around some of the locations and tell him what needed to be done.

In November 2012, Garcia received an Employee Performance Review from his supervisor, Keith Walker. Garcia received a score of "Needs Improvement," the second lowest score possible, in the metric of "Accountability." Elaborating, Walker explained in the comments section of the review that Garcia’s "preparedness for corporate information [was] typically substandard" and that Garcia was often unprepared for P&L meetings and proposal reviews. Garcia claims that this was based on a misunderstanding. Garcia says that Walker thought Garcia was not preparing until right before these meetings. Garcia says that, in reality, he was simply organizing his comments, which he had already prepared, right before the meetings. Garcia says that he discussed this misunderstanding with Walker around the time of the review.

Other than this one negative review, Garcia’s evaluations were consistently positive. From his hiring until the end of 2012, Garcia received annual raises and the maximum possible bonuses, and he even received a raise and a bonus in 2013, following the November 2012 review. Until the November 2012 review, Garcia consistently received scores of "Very Good" to "Excellent," and never anything worse than "Satisfactory."

In March 2013, the company discovered that one of the sixteen locations of Job 560—"Location 6," to be precise—had not been serviced in about two years, even though the company had been billing the government for that work. The company investigated and concluded that Garcia had not properly managed the location, so on April 9, 2013, the company issued a Disciplinary Action Report ("the Report") to Garcia. The Report required Garcia to review "every requirement, at every location, of every contract" assigned to him. The Report, which was styled as a "Final Written Warning," also warned Garcia that "insufficient improvement or misconduct may result in [f]urther disciplinary action up to and including termination." Shortly thereafter, in April 2013, the company explained to the government that there was a discrepancy between the services performed and the work billed, and the company credited the government for the work that could not be confirmed.

Garcia says that Location 6 was neglected for a different reason. He says that in 2003, Rodas told the contract manager not to clean the facility any longer. When Garcia asked Rodas about this, Rodas told him that the border patrol agents told him not to clean that location anymore. Garcia says that the agents had taken back the key to Location 6 so that the company could not access that location—even if Garcia had been given the statement of work and knew what services needed to be performed at that location.

Two months later, in June 2013, the company concluded that Garcia had failed to properly service another job: Job 660, which consisted of cleaning two locations in El Paso, Texas. The company then terminated Garcia’s employment, citing his oversight on Jobs 560 and 660. Garcia, however, says that the company had known about his shortcomings at Job 660 for years.

Garcia says he was fired for a different reason: his whistleblowing activity. Garcia says that beginning in 2011, Garcia reported to the company and to his supervisor that the company was billing the government for cleaning the parking lots on Job 560 when that work was not actually being performed. According to Garcia, the company ignored these reports and continued to bill the government. As a result, Garcia says he decided to report this information to the government. On April 24, 2013, Garcia e-mailed this information to the Chief Financial Officer at SourceAmerica, a nonprofit agency that helps the government administer contracts under the Javits-Wagner-O’Day Act. Garcia forwarded the e-mail to the company’s General Counsel, and to SourceAmerica’s General Counsel. Garcia later met in person with Robinson and had a number of telephone calls and e-mail exchanges with her.

In these interactions, Garcia made several allegations: (1) Garcia was concerned that Walker, his supervisor, would not report the issue with Location 6 of Job 560 to the proper people at the company or to the government; (2) the company was using contract managers to strip and wax the floors on certain projects in violation of certain Javits-Wagner-O’Day Act requirements; (3) landscapers on other projects worked overtime, but the company paid them as subcontractors instead of employees in order to avoid paying extra for the overtime work; (4) the company was certifying employees as disabled based on doctors’ notes in Spanish when those employees were not disabled; and (5) the company was sending its employees to specific doctors in Mexico in order to manipulate the company’s disability numbers to get to the 75 percent disability threshold required by the Javits-Wagner-O’Day Act.

The company notes that these reports to people outside of the company took place entirely after the company had already raised the failure to service Job 560 with the government and agreed to reimburse the government for the services paid for but not delivered. The company notes that, by his own admission, this was the first time Garcia ever externally reported any issue regarding the company’s billing of the federal government.

Garcia sued the company for wrongful retaliation and termination in violation of the False Claims Act. 31 U.S.C. § 3730(h). On March 1, 2017, the company filed a motion for summary judgment. On December 28, 2017, the district court held oral arguments. On January 18, 2018, the district court granted the company’s motion for summary judgment. Garcia timely appealed.

II.

This court reviews a grant of summary judgment de novo. Alaska Elec. Pension Fund v. Flowserve Corp. , 572 F.3d 221, 227 (5th Cir. 2009). Summary judgment is appropriate if "the record, taken as a whole, ‘show[s] that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.’ " Thermacor Process, L.P. v. BASF Corp. , 567 F.3d 736, 740 (5th Cir. 2009) (alterations in original) (quoting Fed. R. Civ. P. 56(c) ). A dispute is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A disputed fact is material if it has the potential to ‘affect the outcome of the suit under the governing law.’ " United States ex rel King v. Solvay Pharms., Inc. , 871 F.3d 318, 323 (5th Cir. 2017) (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ). In deciding whether a fact issue has been created, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Kevin M. Ehringer Enters. v. McData Servs. Corp. , 646 F.3d 321, 325 (5th Cir. 2011) (citation omitted).

We "apply the McDonnell Douglas framework to the False Claims Act’s anti-retaliation provision."

Diaz v. Kaplan Higher Educ., L.L.C. , 820 F.3d 172, 175 n.3 (5th Cir. 2016). Under this framework, the employee must first establish a prima facie case of retaliation by showing: (1) that he engaged in protected activity; (2) that the employer knew about the protected activity; and (3) retaliation because of the protected activity. Solvay Pharms. , 871 F.3d at 332 ; see also United States ex rel. Bias v. Tangipahoa Par. Sch. Bd. , 816 F.3d 315, 323 (5th Cir. 2016)....