Boone v. MountainMade Found.

• Decision Date: 20 August 2014
• Docket Number: Civil Action No. 08–1065 CKK
• Citation: 64 F.Supp.3d 216
• Parties: Crystal Boone, et al., Plaintiffs, v. MountainMade Foundation, Defendant.
• Court: U.S. District Court — District of Columbia

64 F.Supp.3d 216

Crystal Boone, et al., Plaintiffs

v.MountainMade Foundation, Defendant.

Civil Action No. 08–1065 CKK

United States District Court, District of Columbia.

Signed August 20, 2014

C. Michael Tarone, Washington, DC, for Plaintiffs.

Nat Peter Calamis, Carr Maloney PC, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

Plaintiffs Crystal Boone,¹ Melissa Harris, Charles Barker, and Holly Smith bring this action against their former employer, MountainMade Foundation (“MM”), under the Civil False Claims Act (“FCA”), 31 U.S.C. § 3729, et seq., and state law. Plaintiffs assert two claims against Defendant: (1) MM violated the “whistleblower” provisions of the FCA; and (2) MM violated public policy under West Virginia state law by wrongfully discharging Plaintiffs. Currently before the Court is Defendant's [70] Motion for Summary Judgment and Plaintiffs' [95] Motion to File Surreply to Defendant's Reply Brief. Upon consideration of the pleadings,² the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART and DENIES IN PART Defendant's [70] Motion for Summary Judgment, and GRANTS Plaintiffs' [95] Motion to File Surreply for the reasons stated herein.

The Court denies summary judgment as to Plaintiff Boone's alleged demotion under the FCA, but grants summary judgment as to Plaintiff Boone's alleged constructive discharge under both the FCA and state law. The Court denies summary judgment as to Plaintiff Barker's alleged demotion under the FCA, but grants summary judgment as to Plaintiff Barker's termination from employment under the FCA and state law. Similarly, the Court denies summary judgment as to Plaintiff Smith's alleged demotion under the FCA, but grants summary judgment as to Plaintiff Smith's termination from employment under the FCA and state law. Finally, the Court denies summary judgment as to Plaintiff Harris's alleged constructive discharge under both the FCA and state law, but grants summary judgment as to Plaintiff Harris's alleged demotion under the FCA.

Accordingly, the Plaintiffs' claims related to the alleged demotions of Plaintiffs Boone, Barker, and Smith under the FCA as well as the alleged constructive discharge of Plaintiff Harris under both the FCA and state law survive Defendant's Motion for Summary Judgment.

I. BACKGROUND

A. Scope of this Action

Defendant MM is a nonprofit organization that received the majority of its funding from inception through 2006 from federal government grants from the Small Business Administration (“SBA”).³ Def.'s Stmt. ¶ 3.⁴ In March 2006, Plaintiffs, four MM employees, raised concerns to the MM Board of Directors about MM Executive Director Kate McComas. Id. ¶¶ 13–20. Among other things, Plaintiffs asserted that Ms. McComas was using the MM debit card for personal expenditures. Id. ¶¶ 16–17. As a result, Ms. McComas was asked to reimburse MM for some purchases made on the debit card. Def.'s Stmt. ¶ 23; Pl.'s Controv. Stmt. ¶ 21.

Plaintiffs commenced this action on June 20, 2008, claiming that after making the disclosures to the board, subsequent actions taken by MM, including Plaintiffs' alleged demotions and discharges, were made in retaliation for their whistleblowing activities in violation of 31 U.S.C. § 3730(h). See Compl., ECF No. [1]; 2d Amend. Compl., ECF No. [33]. Plaintiffs further assert that they were wrongfully discharged in violation of public policy under West Virginia state law. Defendant argues that Plaintiffs have failed to establish that their reports to the board put them within the purview of 31 U.S.C. § 3730(h) or, in the alternative, that they were subject to adverse job actions in retaliation for their reports to the board.

Defendant also argues that Plaintiffs failed to make out a claim for wrongful discharge in violation of public policy.

B. Procedural History

On June 20, 2008, Plaintiffs filed suit against Defendant in this Court.⁵ Defendant filed its Motion to Dismiss, or in the Alternative, a Motion for Summary Judgment on August 22, 2008, contending that Plaintiffs failed to state a claim for which relief could be granted. Judge Ricardo M. Urbina agreed and granted Defendant's Motion by an Order entered on February 15, 2010. See Boone v. Mountainmade Found., Inc. (Boone I ), 684 F.Supp.2d 1 (D.D.C.2010). On March 12, 2010, Plaintiffs filed a Motion to Alter or Amend Judgment or In the Alternative, For Leave of Court to File Second Amended Complaint. Judge Urbina granted Plaintiffs' request to amend the complaint by Memorandum Order entered on April 7, 2011, and Plaintiffs' Second Amended Complaint was filed that same day. On May 5, 2011, Defendant filed a Motion to Dismiss Count II of Plaintiffs' Second Amended Complaint, arguing that Plaintiffs failed to state a claim for wrongful discharge in violation of public policy. This Court denied Defendant's Motion by an Order entered on April 30, 2012.⁶ See Boone v. Mountainmade Found., Inc. (Boone II ), 857 F.Supp. 111 (D.D.C.2012).

Defendant subsequently filed the instant Motion for Summary Judgment. See Def.'s Mot., ECF No. [70]. Defendant argues that Plaintiffs failed to establish claims for retaliation in violation of the FCA because Plaintiffs have not provided sufficient evidence to demonstrate that they were engaged in protected activity. Defendants also argue that Plaintiffs were not demoted or constructively terminated and, accordingly, were not subject to adverse employment actions. In the two instances in which Plaintiffs were terminated from employment, Defendant argues that Plaintiffs have not demonstrated that these acts were done in retaliation for the reports to the board. Finally, Defendant contends that Plaintiffs cannot demonstrate that they were subject to wrongful discharge in violation of public policy as a matter of law because this claim was premised on the alleged violation of the retaliation provision of the FCA.

Plaintiffs filed an Opposition to Defendant's Motion. See Pls.' Opp'n, ECF No. [74]. The Court notes that Plaintiffs attached reams of exhibits to their opposition, totaling well over 2,000 pages and including entire deposition transcripts. See ECF. Nos. [74], [76]–[79], [81]– [85], [86]–[87]. Many of the exhibits were mismarked and often the Court was required to search through the entire set of exhibits to locate the referenced document. In Plaintiffs' Controverted Statement of Material Facts and Plaintiffs' Statement of Material Facts, Plaintiffs respond to 34 of the 36 facts cited in Defendant's Statement of Facts and then present additional facts numbered 1 through 442, many of which are largely irrelevant and not cited to the proper authority within the voluminous exhibits.⁷ See generally Pls.' Controv.

Stmt., at ECF No. [74–1]; Pls.' Stmt., ECF No. [74–1]. Despite filing two errata, Plaintiffs failed to correct the mistakes in the original filings. See Pls.' 1st Errata to Opp'n, ECF No. [91]; Pls.2d Errata to Opp'n, ECF No. [99]. In addition, Plaintiffs at time identify facts in their pleadings that are not presented in either their Controverted Statement of Material Facts or their statement citing 442 additional material facts. Further, Plaintiffs have failed to provide several exhibits cited as support to their material facts, thus, providing no evidentiary basis for their assertions.

Pursuant to Local Rule 7(h), a party filing a motion for summary judgment must include a statement of material facts as to which that party contends there is no genuine issue. An opposition to a motion for summary judgment must include “a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement .” LCvR 7(h) (emphasis added). The D.C. Circuit has explained:

[A] district court judge should not be obliged to sift through hundreds of pages of depositions, affidavits, and interrogatories in order to make his own analysis and determination of what may, or may not, be a genuine issue of material disputed fact. In this respect, a district court may legitimately look to and rely upon counsel to identify the pertinent parts of the record, to isolate the facts that are deemed to be material, and to distinguish those facts which are disputed from those that are undisputed.

Twist v. Meese, 854 F.2d 1421, 1425 (D.C.Cir.1988). Indeed, “our district courts' Local Civil Rule 7(h) expressly authorizes courts to treat as forfeited evidence—including record evidence—hat the parties fail to highlight at summary judgment.... The existence of a genuine dispute of material fact, therefore, ordinarily turns not on a review of the entire record, but rather on the ‘facts' and the portions of the record each party specifically highlights.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 136–37 (D.C.Cir.2011). In an exercise of its discretion, the Court shall only consider material facts that are set out in the Defendant's Statement of Material Facts Not In Genuine Dispute, Plaintiffs' Controverted Statement of Material Facts, or Plaintiffs' Statement of Material Facts, and that are cited to and supported by exhibits filed with the Court. Fed. R. Civ. P. 56(c) & (e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact ..., the court may consider the fact undisputed for the purposes of the motion.”). The Court shall not rely on material facts raised only in the parties' pleadings, and not in their statements of material facts. Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150–51 (D.C.Cir.1996) (noting that the Court may require strict compliance with the predecessor rule to LCvR 7(h), which “places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the...