McCollum v. Jacobs Eng'g Grp., Inc.

• Decision Date: 21 January 2014
• Docket Number: Civil Action No. 3:13–cv–866(DCB)(MTP).
• Citation: 992 F.Supp.2d 680
• Parties: Scotty McCOLLUM, Plaintiff v. JACOBS ENGINEERING GROUP, INC., and Jacobs Project Management Co., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

992 F.Supp.2d 680

Scotty McCOLLUM, Plaintiff

v.JACOBS ENGINEERING GROUP, INC., and Jacobs Project Management Co., Defendants.

Civil Action No. 3:13–cv–866(DCB)(MTP).

United States District Court,

S.D. Mississippi,

Northern Division.

Jan. 21, 2014.

J. Brad Pigott, Pigott, Reeves, Johnson, P.A., Jackson, MS, Timothy L. Brooks–PHV, Taylor Law Partners, LLP, Fayetteville, AR, for Plaintiff.

Marion F. Walker–PHV, Law Office of Marion F. Walker, Birmingham, AL, Michael L. Waldman–PHV, Richard A. Sauber–PHV, William J. Trunk–PHV, Robbins, Russell, Englert, Orseck, Untereiner & Sauber, LLP, Washington, DC, Robert E. Hauberg, Jr., Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Jackson, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

DAVID BRAMLETTE, District Judge.

This cause is before the Court on the defendants Jacobs Engineering Group, Inc., and Jacobs Project Management Co.'s Motion for Summary Judgment (docket entry 57). The Court has carefully considered the motion and response, as well as the memoranda of the parties, all supporting documents, and the applicable law. The Court held a hearing on the motion on December 10, 2013, and received supplemental briefing from the parties. Being fully advised in the premises, the Court finds as follows:

In 2008, the Federal Bureau of Prisons (“BOP”) awarded Caddell–Yates a contract to design and build a federal correctional institution for women in Aliceville, Alabama. Jacobs Project Management Co. (“Jacobs”) was awarded a separate contract to perform construction management services for the BOP on the Aliceville Project.

As construction manager, Jacobs provided advice and assistance to the BOP in managing the construction of the prison by Caddell–Yates. In October of 2008, Jacobs hired Scotty McCollum (“McCollum”) as a resident field engineer for the Aliceville Project.

One of McCollum's responsibilities was to prepare independent government estimates (“IGEs”) for the BOP. Among other things, the BOP used IGEs to negotiate the pricing of change orders with Caddell–Yates. As is customary, Jacobs hired McCollum for a single project—the Aliceville Project—and his employment was to conclude at the end of that project. See Exhibit 5 to Defendants' Motion for Summary Judgment,¹ 42:2–43:4 (Reeves–Long). McCollum's employment was expected to conclude on August 5, 2011, when the Aliceville Project was scheduled to be completed. Def. Ex. 6, at 1.

Beginning in February of 2009, the BOP's on-site supervisor, Darell Hainline, made a series of complaints to Jeff Adamo, McCollum's direct supervisor, about the timeliness with which McCollum was preparing estimates. Def. Ex. 7, 77:10–17 (Adamo). Hainline made similar complaints to Bob Paul, Adamo's supervisor. Def. Ex. 8, 70:7–72:22 (Paul). Hainline felt that McCollum was taking too long to prepare IGEs, and that the IGEs he ultimately did prepare contained obvious errors and omissions. Def. Ex. 9, 41:1–24, 42:0–43:17 (Hainline).

Hainline was also critical of McCollum's work ethic. He complained to Adamo, Paul, and others that McCollum would arrive to work late, and take lunches well beyond the allotted thirty minutes. Def. Ex. 7, 77:14–21 (Adamo); Def. Ex. 9, 31:19–33:17, 49:7–23, 182:5–12, 205:7–206:3 (Hainline).

Paul and Adamo spoke with McCollum on a number of occasions about these complaints. They offered McCollum constructive criticism and encouraged him to improve his performance. Def. Ex. 10, at 1; Def. Ex. 4, at 2.

McCollum disagreed with Hainline's assessment of his performance, and felt that Hainline's approach to processing change orders was misguided. He insisted that his IGEs were only delayed because he did not have the documents necessary to do his job. Def. Ex. 11, at 4–5; Def. Ex. 10, at 1.

In July of 2009, Adamo conducted McCollum's annual performance review. Adamo was generally positive about McCollum's performance, and principally was concerned with repairing his poor relationship with Hainline. Def. Ex. 2, 132:23–134:24 (McCollum).

McCollum's relationship with BOP's Hainline did not improve. In August and September of 2009, Hainline reiterated to Paul and Adamo that McCollum's performance and work ethic were unacceptable. Def. Ex. 7, 104:3–16 (Adamo); Def. Ex. 8, 171:6–172:5 (Paul). Hainline explained that McCollum's habit of arriving late and taking long lunches was getting worse, not better. Def. Ex. 9, 30:7–33:17, 34:11–36:3, 37:23–38:5 (Hainline).

Hainline had started keeping track of the times that McCollum arrived in the morning, took lunch, and left in the afternoon. Id., 30:7–31:18. Hainline felt that McCollum's attendance was “completely unacceptable.” Id., 30:15–19. Hainline notified Jacobs that the BOP wanted Jacobs to replace McCollum on the Aliceville Project. Id., at 178:3–19; Def. Ex. 10, at 2.

Paul and Adamo informed McCollum of the BOP's decision. Def. Ex. 8, 202:15–203:4 (Paul); Def. Ex. 10, at 2–3. They offered to provide good references, and Paul agreed to keep McCollum in mind for positions that might become available in the future. Def. Ex. 2, 140:14–141:8, 145:20–22 (McCollum); Def. Ex. 8, 179:4–12, 193:19–194:6 (Paul).

Paul also contacted Jacobs' managers in Arlington and Orlando on McCollum's behalf to try to find him another position. Def. Ex. 8, 183:7–20 (Paul). Meanwhile, McCollum demanded to see the BOP's complaints about his performance in writing. Def. Ex. 2, 163:13–22 (McCollum).

On October 6, 2009, John Hume—a contracting officer with the BOP—sent a letter to Jacobs formally directing that McCollum be replaced “as soon as practicable.” Def. Ex. 1, at 2. The letter stated that McCollum's estimates were “not being completed in a timely fashion,” and were “not thorough” or “sufficiently credible to allow the BOP to adequately evaluate or negotiate proposals from the Design Builder with confidence.” Id. at 1.

The October 6th letter noted that under paragraph E.6 of the agreement between Jacobs and the BOP, the BOP “reserves the right to require a change or replacement of [Jacobs] personnel.” The BOP's letter then concluded:

This letter is to notify Jacobs Technology that the current Estimator [McCollum] is not satisfactorily performing the duties required by our contract. It is in the best interests of the Government to replace the CMF ² staff member ... Please propose a suitable replacement/substitution as soon as practicable.

Id. at 1–2.

Meanwhile, McCollum had begun complaining about the IGE process on the Aliceville Project. Def. Ex. 8, 173:7–13, 202:15–203:8 (Paul); Def. Ex. 10, at 2–3. In late September, McCollum e-mailed Greg Hartman, a Jacobs' recruiter, complaining about potentially losing his position “on false pretenses.” Def. Ex. 14. Then, only days after the BOP sent its letter, McCollum made similar complaints to Rhonda Reeves–Long (“Reeves–Long”) in Jacobs' Human Resources Department. Def. Ex. 15; Ex. 16.

Because Jacobs was contractually obligated to honor the BOP's demand that McCollum be removed from the Project, Jacobs began interviewing for McCollum's replacement. Def. Ex. 3, at § E.6; Def. Ex. 17, 22:6–23:3, 27:16–29:9 (Hume); Def. Ex. 10, at 2–3. On October 14, 2009, the BOP approved Roy Steege as McCollum's replacement on the Aliceville Project. Def. Ex. 19.

On October 19, 2009, Jacobs removed McCollum from the Aliceville Project and, consistent with company policy, placed him on Company Convenience Leave (“CCL”), an unpaid leave of absence, for sixty days. Def. Ex. 20; Def. Ex. 21. McCollum was informed that CCL was for those “who are temporarily without billable work,” and that Jacobs “cannot guarantee reinstatement.” Def. Ex. 20. Pursuant to Jacobs' policy, “[i]f [an] employee cannot be returned to active status upon the end of the Company Convenience Leave,” then his “employment will be terminated.” Def. Ex. 21.

McCollum does not recall applying for another position with Jacobs. Def. Ex. 2, at 156:5–157:20 (McCollum). He informally contacted several project managers, but none was aware of an open position at that time. Id., at 157:21–158:19, 172:8–22.; Compl. ¶ 26. These Jacobs managers confirmed that “things [we]re slow,” and they actually had some “soft spots with several other personnel,” given the scarcity of work. Def. Ex. 22; Def. Ex. 23.

McCollum's CCL period expired on December 19, 2009. Pursuant to company policy, because he failed to obtain another billable position, McCollum was laid off effective December 20, 2009. Def. Ex. 24. In March of 2010, McCollum was hired by the U.S. Army Corps of Engineers, where he remains employed today. Def. Ex. 2, 23:15–26:11 (McCollum).

On July 7, 2010, McCollum filed a federal qui tam complaint under seal and served the same on the United States Attorney. The complaint alleged that Jacobs and others had conspired to certify, approve and submit falsified change orders for payment by the United States Government in violation of the False Claims Act. The complaint also contained a claim for retaliatory discharge pursuant to 31 U.S.C. § 3130(h).

The False Claims Act (“FCA”) may be enforced by the Attorney General, or by a private person, known as a “relator,” who brings a qui tam suit “for the person and for the United States Government ... in the name of the Government.” 31 U.S.C. § 3730(a) & (b). A qui tam suit is filed in camera and remains under seal for sixty days. 31 U.S.C. § 3730(b)(2). The relator must present all material evidence to the Government. During the sixty days, the Government may intervene and proceed with the action itself. Id. If the Government declines to intervene, the relator may proceed on his own. 31 U.S.C. § 3730(b)(4)(B).

The qui tam relator is also protected by the FCA's “whistleblower” provision, which provides relief to any employee who suffers retaliation for bringing a claim under the FCA or assisting an employee-relator who does so. 31 U.S.C. § 3730(h). The whistleblower protection extends to any relator who brings a claim in good faith, whether or not the claim...