McKenzie v. BellSouth Tele.

• Decision Date: 17 March 2000
• Docket Number: No. 99-5584,99-5584
• Citation: 219 F.3d 508
• Parties: (6th Cir. 2000) Mary C. McKenzie, Plaintiff-Appellant, v. BellSouth Telecommunications, Inc., d/b/a South Central Bell Telephone Company, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 508

219 F.3d 508 (6th Cir. 2000)

Mary C. McKenzie, Plaintiff-Appellant, v. BellSouth Telecommunications, Inc., d/b/a South Central Bell Telephone Company, Defendant-Appellee.

No. 99-5584

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 17, 2000

Decided and Filed: July 12, 2000

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville; No. 94-00730--R. Allan Edgar, Chief District Judge. [Copyrighted Material Omitted] Stephen R. Felson, FELSON & FELSON, Cincinnati, Ohio, Leonard Egan, Washington, D.C., for Appellant.

Matthew H. Patton, Kilpatrick & Stockton, Atlanta, Georgia, Arthur G. Seymour, Jr., Frantz, McConnell & Seymour, Knoxville, Tennessee, Fred A. Walters, BELLSOUTH TELECOMMUNICATIONS, INC., Atlanta, Georgia, for Appellee.

Before: NORRIS, MOORE, and COLE, Circuit Judges.

OPINION

R. GUY COLE, JR., Circuit Judge.

Plaintiff-Appellant, Mary McKenzie, appeals the district court's grant of summary judgment for Defendant-Appellee, BellSouth Telecommunications Inc. ("BellSouth"), in her action alleging that BellSouth harassed and discharged her in violation of the qui tam¹ provisions of the False Claims Act ("FCA"), 31 U.S.C. §§ 3729-3730. Section 3730(h) of the FCA prohibits retaliation against employees engaged in the protected activity of investigating possible fraud against the United States government. McKenzie's § 3730(h) retaliation claim was one part of her original qui tam action alleging that BellSouth committed fraud against the United States government. After the district court dismissed McKenzie's qui tam action, which we subsequently affirmed in part and remanded in part for further proceedings on the § 3730(h) retaliation claim, the district court granted summary judgment for BellSouth on the retaliation claim. Now, McKenzie appeals the district court's grant of summary judgment for BellSouth, contending that sufficient evidence existed to establish that BellSouth was aware that she was contemplating a qui tam suit under the FCA, as required by § 3730(h).

For the following reasons, we AFFIRM the district court's grant of summary judgment for BellSouth.

I. BACKGROUND

The facts developed in our prior decision in this matter are not disputed by either McKenzie or BellSouth. In McKenzie's prior appeal, we stated:

McKenzie was an employee of BellSouth's subsidiary, South Central Bell, from December 1966 until March 1992 when she left work on permanent disability status. For most of her career at [BellSouth] McKenzie was a dispatcher for the company's maintenance technicians. This position included receiving and processing complaints about telephone service, dispatching repair personnel, and closing these "trouble reports" once repairs were completed.

[BellSouth] provides telephone service throughout Tennessee, Kentucky, Alabama, Mississippi, and Louisiana and its customers include the Tennessee Valley Authority and a Department of Energy facility at Oak Ridge, Tennessee, both federal facilities. When a telephone line is out of service for more than 24 hours, [BellSouth] must refund the cost of that day's service for those customers who request a refund, except in the following circumstances: service is diminished but the line is not completely out of service; repairs are impossible because the customer's premises are inaccessible; the condition is reported by an employee and not the customer; and the customer extends the period of time for repairs to be completed.

According to McKenzie's complaint, [BellSouth], to avoid having to make refunds to the United States and other customers, falsified trouble reports so that it would appear that lines were repaired within 24 hours or that one of the exceptions applied. McKenzie says that she and other dispatchers routinely misclassified telephone lines as either in service or diminished service when the lines were actually out of service, reported that service had been restored within 24 hours when it had not been, reported that premises were inaccessible when they were not, and misclassified trouble reports as having been initiated by a [BellSouth] employee when they were actually initiated by the customer.

McKenzie began complaining to her supervisors at [BellSouth] about these practices in 1984 and continued to complain until she left her position on disability status. On one occasion McKenzie showed her supervisor a newspaper article describing a similar fraud being perpetrated in Florida. McKenzie claims that as a result of her complaints she was harassed and threatened with discharge. After suffering two emotional breakdowns a company psychiatrist placed McKenzie on permanent disability leave.

McKenzie filed suit under the FCA, which allows individuals with information regarding the commission of fraud against the United States to bring suit on the government's behalf. McKenzie also brought a retaliation claim on her own behalf under 31 U.S.C. § 3730(h).

United States ex. rel. McKenzie v. BellSouth Telecomm. Inc., 123 F.3d 935, 937-38 (6th Cir. 1997) (footnotes omitted), cert. denied, 522 U.S. 1077 (1998).

The district court dismissed McKenzie's qui tam action, finding that McKenzie failed to state a valid claim. On appeal this court affirmed the district court's dismissal of the qui tam action, but reversed and remanded the § 3730(h) retaliation claim. See id., 123 F.3d at 943-44. Finding that McKenzie's complaint had "adequately alleged that her employer was aware that she was contemplating pursuing a qui tam action under the FCA," and thus had sufficiently stated a claim for retaliation under § 3730(h) of the FCA, this court remanded the retaliation claim for further discovery. Id. at 945.

On remand, the parties produced additional evidence underlying McKenzie's retaliation claims. The additional evidence consisted of 1) depositions from McKenzie and her husband, concerning her retaliation allegations, and 2) the Miami Herald newspaper article described in McKenzie's complaint.² Based on this evidence, BellSouth moved for summary judgment. On March 31, 1999, the district court granted summary judgment for BellSouth, finding that McKenzie provided no evidence that "adequately alleged that her employer was aware that she was contemplating pursuing a qui tam action under the FCA." McKenzie appeals the district court's grant of summary judgment for BellSouth.

II. STANDARD OF REVIEW

We review de novo a district court's grant of summary judgment, using the same Fed. R. Civ. P. 56(c) standard as the district court. See Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 370-71 (6th Cir. 1999). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If the moving party shows this absence, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. See Matsushita, 475 U.S. at 587. To meet this burden, the nonmoving party may not rest on the mere allegations in the pleadings. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. Merely alleging the existence of a factual dispute is insufficient to defeat a summary judgment motion; rather, there must exist in the record a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986).

III. ANALYSIS

A. Law of the Case

As a threshold argument, McKenzie contends that the district court and this court are bound by the law-of-the-case doctrine, which precludes reconsideration of issues decided at an earlier stage of the case³. See United States v. Moored, 38 F.3d 1419 1421-22 (6th Cir. 1994) (under the law-of-the-case doctrine, a district court is precluded from revisiting an issue that was expressly or impliedly decided by an appellate court). Thus, McKenzie contends the district court erred by granting summary judgment to BellSouth, because this court's prior opinion determined that she had stated a valid claim for retaliation under the facts as alleged in her complaint.

This court has confined the law-of-the-case doctrine to the mandate of the reviewing court's opinion and the portions of the opinion incorporated into the mandate. See Jones v. Lewis, 957 F.2d 260, 262 (6th Cir. 1992) (discussing the "mandate rule" as a "specific application of the law of the case doctrine"). In determining what the trial court may consider on remand, this court observed that, "[a]s with all applications of the law-of-the-case doctrine, the trial court may consider those issues not decided expressly or impliedly by the appellate court or a previous trial court." Id. (citing Quern v. Jordan, 440 U.S. 332, 347 n.18 (1979)). Thus, we must consider this court's mandate to the district court to determine the scope of the law-of-the-case doctrine in this instance.

In McKenzie, this court stated that "the district court improperly dismissed McKenzie's claim for retaliation because she . . . adequately alleged that her employer was aware that she was contemplating pursuing a qui tam action under the FCA." 123 F.3d at 945. We also stated, however, that "[d]iscovery shall reveal whether these allegations can be supported." Id. at 945. Thus, we acknowledged that McKenzie's case had been dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). See id. at 938. We further acknowledged that discovery would develop the factual allegations of the complaint. See id....