Glynn v. EDO Corp.

• Decision Date: 21 March 2013
• Docket Number: No. 12–1160.,12–1160.
• Citation: 710 F.3d 209
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: Dennis P. GLYNN, Plaintiff–Appellant, v. EDO CORPORATION; Impact Science & Technology, Inc., Defendants–Appellees, and Michael Caprario; Foster–Miller, Inc.; Dean Puzzo; James D. Martin; Cadqal Development, Inc., Defendants.

710 F.3d 209

Dennis P. GLYNN, Plaintiff–Appellant,

v. EDO CORPORATION; Impact Science & Technology, Inc., Defendants–Appellees,andMichael Caprario; Foster–Miller, Inc.; Dean Puzzo; James D. Martin; Cadqal Development, Inc., Defendants.

No. 12–1160.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 4, 2012.

Decided: March 21, 2013.

ARGUED:Adam Augustine Carter, The Employment Law Group, PC, Washington, D.C., for Appellant. William G. Miossi, Winston & Strawn, LLP, Washington, D.C., for Appellees. ON BRIEF:R. Scott Oswald, The Employment Law Group, PC, Washington, D.C., for Appellant. Ryan S. Spiegel, Alia Ornstein, Winston & Strawn, LLP, Washington, D.C., for Appellees.

Before GREGORY, AGEE, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge GREGORY wrote the opinion, in which Judge AGEE and Judge WYNN joined.

OPINION

GREGORY, Circuit Judge:

In this False Claims Act (“FCA”), 31 U.S.C. §§ 3729–3733, retaliation action, Plaintiff–Appellant Dennis Glynn (“Glynn”) argues that Defendant–Appellee Impact Science & Technology (“IST”) and its parent company, EDO Corporation, fired Glynn because he reported IST to the government for what he believed to be fraudulent conduct. We agree with the district court that Glynn was not engaged in activity that qualified him for protection under the FCA's anti-retaliation provision and affirm the grant of summary judgment to Appellees.

I.

IST is a New Hampshire corporation that designs and manufactures counter-improvised explosive devices (“C–IEDs”) for the United States government. IST hired Glynn in 2004 as an engineer after purchasing his company, Dedicated Electronics, Inc., which had previously consulted for IST. IST's line of C–IEDs includes Mobile Multi–Band Jammer systems (“MMBJs”). MMBJs jam the frequencies used to detonate the improvised explosive devices (“IEDs”) that have been used with devastating effect on American troops in the wars in Iraq and Afghanistan.

Beginning in 2004, Glynn made numerous recommendations and complaints to his supervisor, Dean Puzzo, IST's Director of Information Warfare Programs, and Scott Traurig, IST's Senior Principal Systems Engineering Manager, related to what he perceived as the failure of MMBJ devices to function properly at elevated temperatures. He also complained he was not receiving clear guidance about what specifications the MMBJs were supposed to meet and that there was insufficient screening conducted on the equipment. Specifically, Glynn spoke with Traurig at least six times about the need for better specifications and temperature testing. At one point, Traurig responded that IST does not use specifications because IST has to “operate on the fly.”

In April 2005, IST's government customer (“Government Customer”) discovered that IST had failed to put a finalized testing plan in place and communicated to IST that its failure was “unacceptable.” In August 2005, Glynn sent an email to Puzzo, Caprario, and Traurig explaining the temperature issues hobbling the jammers. He recommended a particular test to determine whether the MMBJs were operating correctly. Puzzo responded by email and communicated to Caprario and Traurig that “we should look at Dennis's recommendation very seriously.”

The remainder of the facts pertinent to this case took place in 2006. In May of that year, Glynn was instructed to conduct testing on the Multi–Band Tunable Noise Source module (“MBTNS”) used in the MMBJs. These modules are an important component of the MMBJs that are designed to emit a radio-frequency that jams the receivers of nearby IEDs. Traurig instructed Glynn to pass the MBTNSs only if they performed adequately at 85 degrees Celsius. Glynn viewed Traurig's 85–degree threshold as arbitrary, however, and chose to calculate his own threshold. Although the MBTNSs did not meet the 85–degree threshold Traurig had set, Glynn chose to pass them.

Further temperature testing on the MBTNSs in June revealed that one of the frequency channels, the “E-band,” may generate inadequate output power under elevated temperatures to jam IED detonation signals covered by that band. To fix the problem, IST placed a corrective temperature component into the system. However, IST only applied this fix to units still in stock and not to the 800 jammers already in the field. Glynn asked Caprario to recall the MMBJs that had already been shipped and were active in the field so that IST could install the corrective component. Glynn also asked Caprario to inform the Government Customer of the temperature concerns. Caprario did neither. According to Glynn, Caprario stated that he did not want to “upset the apple cart right now,” a reference, Glynn contends, to the $120 million EDO acquisition deal that was in the works at the time and was due to close in September. IST insists Caprario explained to Glynn that he would not recall any MMBJs because the MBTNS temperature issue posed no risk to the overall performance of the MMBJs.

Also in June, Glynn asked various managers at IST if he could see copies of the MMBJ contracts. On June 9, Glynn met with Lewis Dokmo, IST's Vice President, and stated his team was having trouble “sleeping at night” because of concern they were not producing their product according to contract specifications and could be endangering people's lives. Glynn expressed his opinion that the three people between Glynn and Dokmo on the IST chain of command (Traurig, Caprario, and Puzzo) were “arrogant pricks” who were spoon-feeding him misleading information. Dokmo told Glynn he could see the contracts only if he put his request in writing. However, Glynn never submitted a written request. Throughout the summer of 2006, Glynn raised his concerns to multiple people in the company about temperature issues with the MBTNS module and output power on the E-band.

On September 13, Glynn contacted Assistant U.S. Attorney Philip Halpern and told Halpern that he thought IST “was shipping systems that ... were putting our troops in jeopardy.” Halpern connected him with FBI Agent Maurice Hattier. In a September 15 response to an e-mail entitled “Suspected Contract Fraud,” Glynn stated, “[i]t is my opinion that Caprario, Traurig, and Puzzo are putting lives at risk by ignoring the temperature problems with the MMBJ systems. They all directly benefited financially from the decision to do so with the recent sale of the company.” Agent Hattier referred Glynn to Agent Benjamin Hochberger of the Department of Defense Criminal Investigative Service, with whom Glynn communicated between September 2006 and February 2007. Beyond the concerns related to the functionality of MMBJs under elevated temperatures, Glynn also noted IST's perceived failure to create or implement a quality assurance plan (“QAP”) for the MMBJs and alleged that IST was fraudulent in its billing practices.

On September 20, Glynn told Philip Joseph, a manager at IST, that he had reported the delivery of “faulty systems” to the government. Even though Glynn asked Joseph to keep the matter confidential, Joseph alerted IST management to Glynn's report on September 27. The next day, Caprario contacted the Government Customer to explain that one of IST's employees had made an allegation about the MMBJs.

In October, the Government Customer performed two rounds of testing on the MMBJs. Testing on October 4 revealed that MMBJs still in stock at IST that contained temperature compensation pads performed well overall. However, Glynn later told Agent Hochberger that IST did not inform the Government Customer that these units had a temperature compensation pad while units in the field did not. After Glynn explained the discrepancy, the Government Customer shipped units back from the field and conducted a second round of testing on October 20. This testing revealed that MMBJs that did not contain temperature compensation pads suffered a nine percent reduction in effective range. However, the government did not consider this range reduction significant, and concluded that these units also passed testing. Nonetheless, in direct contravention of the Government Customer's own determination, Glynn insists these units shipped from the field failed testing.

Glynn alleges IST made the decision to terminate him on October 13, just two weeks after IST learned of Glynn's disclosure. He claims IST decided to keep him on through December because they needed him to finish work on an important new module they hoped would replace the MBTNS. IST terminated Glynn on December 14, 2006.

In 2007, Glynn sued IST and EDO for unlawful retaliation under the FCA and other claims not at issue on appeal. On cross-motions for summary judgment, the district court denied Glynn's motion and granted IST's motion. Glynn timely appeals the district court's grant of summary judgment against him.

II.

We review a district court's grant of a motion for summary judgment de novo, applying the same legal standards as the district court. Nader v. Blair, 549 F.3d 953, 958 (4th Cir.2008). Summary judgment is only appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id. In determining whether a genuine issue of material fact exists, we view the facts and draw all reasonable inferences in the light most favorable to the non-moving party. Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir.2011). However, the non-moving party cannot solely rely on “mere allegations or denials of [his] pleadings.” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.2003). He must set forth specific facts that go beyond the “mere existence of a scintilla of evidence.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III.

The FCA is designed to discourage contractor fraud against the federal government. Mann v. Heckler & Koch Defense, Inc., 630 F.3d 338, 342 (4th Cir.2010). Under the FCA, private parties can bring qui tam actions...