Tetzlaff v. United States
| Decision Date | 25 November 2015 |
| Docket Number | No. 15-161C,15-161C |
| Court | U.S. Claims Court |
| Parties | NICOLE TETZLAFF, Plaintiff, v. THE UNITED STATES, Defendant. |
ORIGINAL
Pro Se Plaintiff; Fair Labor Standards Act; Contract Disputes Act of 1978; Small Business Act; Tort; Administrative Procedure Act; RCFC 12(b)(1); RCFC 12(b)(6); Temporary Restraining Order; Preliminary Injunction; Breach of Contract; Duty of Good Faith and Fair Dealing
Nicole Tetzlaff, Flagstaff, AZ, pro se.
Eric J. Singley, United States Department of Justice, Washington, DC, for defendant.
On February 23, 2015, plaintiff in the above-captioned case, appearing pro se, filed a complaint alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206-207, the Contract Disputes Act of 1978 ("CDA"), 41 U.S.C. §§ 7101-7109, the Small Business Act ("SBA"), 15 U.S.C. §§ 631-6575, the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, and also alleging other miscellaneous claims, including a breach-of-contract claim. Plaintiff subsequently filed a motion for a temporary restraining order or preliminary injunction. Defendant then filed a motion to dismiss plaintiff's claims pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims ("RCFC"). For the reasons set forth below, the court grants in part and denies in part defendant's motion to dismiss, and denies plaintiff's motion for a temporary restraining order or preliminary injunction.
From 2005 until 2013, plaintiff served as a childcare services provider ("childcare provider" or "provider") in California for the Navy Region Southwest ("NRSW") Child Development Home Program ("CDH Program" or "Program"), which is managed and regulated by the United States Department of the Navy ("Navy").1 She entered into an express contract with the government to provide, as an independent contractor, childcare services out of her home to the military community. In 2011, plaintiff learned that the CDH Program was followingcertain regional and naval instructions that she believed were outdated. Thus, in July 2011, she met with the CDH Program's director, Jolly Teofilo, and expressed her concerns with "the amount of control being placed upon" her, and with the "Program's serious deficiencies." Compl. 13. Ms. Teofilo directed plaintiff to her superior, Kathy Flynn of Fleet and Family Services. During plaintiff's telephone call with Ms. Flynn, Ms. Flynn stated that she was plaintiff's boss, and that plaintiff should "stop looking into the Program['s] deficiencies." Id. Plaintiff then went to the NRSW Broadway Complex to speak with Command Master Chief Nancy Hollingsworth. Ms. Flynn, an individual named Cindy Padilla, and one of plaintiff's fellow providers were also in attendance. Plaintiff gave Command Master Chief Hollingsworth, Ms. Padilla, and Ms. Flynn a copy of her questions and concerns regarding the CDH Program. Plaintiff also requested clarification as to why there was no Special Needs Review Board or provider training regarding Epi-pen administration to children with special needs. Further, plaintiff asked about the dress code and "why it was being forced upon [her]." Id. In addition, plaintiff asked why she was required to work 55 hours per week, 'while the parent fee policy . . . stated 'at least 50 hours per week.'" Id. at 14. In response, plaintiff was instructed to "change [her] hours of operation or [her] subsidy would be placed on hold until [she] complied." Id.
Plaintiff further asked about the "additional pay that should be paid to Providers exceeding the common 50 hours of care." Id. She asked about "where [their] overtime pay was going and why [she] was being paid through non-appropriated funds." Id. Ms. Flynn "told [her] not to worry about where [her] pay was coming from." Id. Further, plaintiff was given a list of responses to the questions that she had previously asked Ms. Teofilo.
One week after this meeting, Ms. Padilla and Ms. Flynn created a "subsidy standard operating procedure [("SOP")] to reflect the 55-hour 'required' work-weeks." Id. at 15. On October 6, 2012, Ms. Teofilo sent the new SOP to all CDH Program providers via electronic-mail message, but did not send Operations Naval Instruction ("OPNAVINST") 1700.9E (Sept. 24, 2012),2 which referenced 50-hour work weeks, until the next day.
Subsequently, Charlotte Veal, plaintiff's CDH Program monitor, made statements on plaintiff's inspection report that plaintiff believed were false. Lydia Ortiz was then replaced as plaintiff's monitor. During plaintiff's January 2013 inspection, Ms. Ortiz "ripped out [plaintiff's] knife drawer, breaking it into pieces on [plaintiff's] floor." Id. at 16. Ms. Ortiz noted on plaintiff's inspection that there was a "broken knife lock," and plaintiff then "covered the cost to repair the drawer." Id. Plaintiff asked Command Master Chief Hollingsworth for assistance, but she stated that she could not help plaintiff because a Navy Inspector General report had been filed and an investigation was ongoing.
During that time, plaintiff's husband was "processing out of the Navy and had not yet received his disability rating." Id. Previously, he suffered a traumatic brain injury while serving overseas, and is now disabled. Plaintiff is his caretaker.
During the time that plaintiff provided services to the Navy, a Provider Information Package was sent to all CDH Program providers, including plaintiff. The package required her signature and agreement to the requirements contained therein. If plaintiff did not sign the agreement, her subsidy payment would be terminated. Certification as a provider for the CDH Program is authorized for one year, after which a provider must recertify. Plaintiff received the agreement after she was recertified, but before her date of renewal. Plaintiff was required to sign the agreement, or she would not be allowed to continue as a CDH Program provider.
Further, officials in the CDH Program continuously stated to her that her business would cease to operate and that payment for services that she had already provided would be forfeited if she did not comply with the requirements and SOPs that she received. She was required to post her inspection reports with corrective actions noted, which the families that she served could see. Ms. Teofilo indicated to plaintiff that she would publish plaintiff's name and corrective action in the monthly newsletter if she made a mistake on her subsidy paperwork.
Plaintiff received an IRS Form 1099 every year. In addition, plaintiff was licensed to provide services for eight children at a time. However, she was enrolled in the CDH Program for six children. The number of children that were assigned to her, and thus her resulting income, were at the Navy's discretion. Prospective families were screened and interviewed by the CDH Program office prior to enrollment with plaintiff. A prospective family's total income was reviewed to determine the amount of money that plaintiff would receive on a weekly basis. If a family did not obtain Navy subsidy verification by the CDH Program office, it would not be allowed to receive care from a CDH Program provider.
Plaintiff was required to remain open for eleven hours every day, from 6 a.m. until 5 p.m. She was not allowed to hire others for assistance. Plaintiff was instructed as to what she could not include in her Parent/Provider contract with families. She would receive a warning letter if she did not fly the Navy Program flag outside of her house. As a childcare provider, the requirements of her employment remained the same as she transitioned to different installations. She was required to attend two hours of mandatory monthly training, in addition to the eleven hours that her business was to remain open. Upon leaving the CDH Program in 2013, plaintiff had to "beg and plead" the CDH Program director and Commander, Navy Installations Command ("CNIC") for her Individual Development Plan, which was a log of her training hours. Id. at 34.
Providers were required to reserve their childcare openings exclusively for military dependent children. All childcare referrals had to be received through the Navy Childcare Resource and Referral Office or the Central Enrollment Waiting List. Plaintiff was not allowed to offer her services to the general public.
Of the SOPs that plaintiff was required to follow, one stated that she should detain any service member suspected of being inebriated and withhold their child from them. Many service members who entered her home to pick up their children were armed.
In addition, plaintiff underwent unannounced monthly inspections where corrective actions would be noted. She received pay for federal holidays, but only if she kept her homeopen for business on the day preceding and the day after a federal holiday. Although the state of California did not require liability insurance for licensed childcare providers, plaintiff had to obtain a vehicle insurance policy that stated "business use," and she was required to add the Navy as an additional insured party on the policy.
Plaintiff was required to participate in annual physicals that included being tested for sexually transmitted diseases without her knowledge or permission. She was also tested every year for tuberculosis.
At one point, OPNAVINST 1700.9E was revised to allow providers to administer rectal medication in a childcare setting. Plaintiff voiced her disagreement with this practice. She also expressed concern regarding what she believed was the misuse of funds through the CDH Program.
Plaintiff learned of the United States Department of Defense's ("DoD") acquisition process to obtain services from independent contractors like her. She contacted the Defense Contract Management Agency, which executes contracts for the DoD around the world. Plaintiff requested the name and contact information of the contracting officer assigned to her, if one existed, as well as the...
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