U.S. ex rel. Yesudian v. Howard University

• Decision Date: 01 September 1998
• Docket Number: 96-7226,Nos. 96-7225,s. 96-7225
• Citation: 332 U.S. App. D.C. 56,153 F.3d 731
• Parties: , 136 Lab.Cas. P 10,232, 128 Ed. Law Rep. 1030, 14 IER Cases 545 UNITED STATES of America, ex rel. Daniel YESUDIAN, Appellant/Cross-Appellee, v. HOWARD UNIVERSITY, et al., Appellees/Cross-Appellants. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 731

153 F.3d 731

332 U.S.App.D.C. 56, 136 Lab.Cas. P 10,232,

128 Ed. Law Rep. 1030, 14 IER Cases 545

UNITED STATES of America, ex rel. Daniel YESUDIAN, Appellant/Cross-Appellee, v. HOWARD UNIVERSITY, et al., Appellees/Cross-Appellants.

Nos. 96-7225, 96-7226.

United States Court of Appeals,District of Columbia Circuit.

Argued Oct. 6, 1997.

Decided Sept. 1, 1998.

Appeals from the United States District Court for the District of Columbia (No. 93cv01791).

James L. Kestell argued the cause and filed the briefs for appellant/cross-appellee.

Timothy F. McCormack argued the cause and filed the briefs for appellees/cross-appellants. Charles S. Fax entered an appearance.

Before: WALD, HENDERSON and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

Opinion dissenting in part filed by Circuit Judge KAREN LeCRAFT HENDERSON.

GARLAND, Circuit Judge:

Howard University terminated Dr. Daniel Yesudian from his job in the University's Purchasing Department on May 1, 1992. The University said he was terminated for insubordination; Yesudian claimed he was discharged in retaliation for whistleblowing activities protected by the False Claims Act, 31 U.S.C. §§ 3729-3733. Yesudian sued the University and three of his supervisors, alleging submission of false claims in violation of the False Claims Act, retaliation for reporting the alleged false claims, and breach of contract. The jury returned verdicts for Yesudian on his retaliation claim against one of his supervisors, Joseph Parker, and on his breach of contract claim against the University, and awarded $180,000 in back pay. It found against Yesudian on his allegation that false claims were submitted in violation of the Act, and on his allegations that the University and the supervisors other than Parker had retaliated against him.

After the verdicts, the district court granted Parker's motion under Fed.R.Civ.P. 50 for judgment as a matter of law against Yesudian on the retaliation claim, but denied the University's Rule 50 motion on the breach of contract claim. See United States ex rel. Yesudian v. Howard Univ., 946 F.Supp. 31 (D.D.C.1996). Both Yesudian and the defendants appealed. We conclude there was sufficient evidence to support the jury's verdict on both claims. We therefore reverse the grant of judgment as a matter of law on the retaliation claim and affirm the denial of judgment as a matter of law on the contract claim.

I

Yesudian began working at Howard in 1971. After several promotions, he was transferred to the Purchasing Department in 1983. From 1984 to 1992, Yesudian discovered and repeatedly complained to upper-level University officials about financial improprieties allegedly committed by the Purchasing Department and its director, Joseph Parker. ¹ Specifically, Yesudian charged that Parker falsified time and attendance records for his administrative assistant, provided inside information to favored vendors to aid them in the bidding process, accepted bribes from vendors, permitted payments to vendors who did not provide services to the University, and took University property home.

Yesudian brought these problems to the attention of the University's Director of Accounting in 1984 and to the Executive Assistant to the Vice President for Business and Fiscal Affairs in 1986. The latter told him: "You know, Dan, you don't want to be the whistle-blower." App. 57. Beginning in 1987, Yesudian attempted to bring his complaints to Melvin W. Jones, the University's Vice President for Business and Fiscal Affairs. Yesudian finally met with Jones in the summer of 1989 to discuss his complaints. See Def.'s Ex. 44. On May 11, 1990, Yesudian sent Jones a memorandum detailing his charges, see id., and on May 16, Jones wrote back, noting that Yesudian had "made a number of charges against the Purchasing Department which are of serious concern to me." Def.'s Ex. 43. Jones specifically listed Yesudian's allegations of "cooperating in the cheating of the University with the Time and Attendance Records," "[p]roviding 'Inside Information' to selected vendors," "[a]ccepting bribes from vendors," and "[t]aking University property home." Id.; see Trial Tr. 234-35. Meanwhile, on several occasions from 1987 through 1990, Parker and his deputy, George Varghese, took disciplinary action against Yesudian assertedly for misconduct and various forms of insubordination.

In 1991, Yesudian sent a letter detailing his concerns to the President of the University, whose executive assistant referred him to the new Vice President for Business and Fiscal Affairs, James Fletcher II. In March 1992, Fletcher met with Yesudian. Yesudian told him of his findings, including false entries on the attendance records of Parker's assistant and payments to vendors who did not provide services to the University. Yesudian also gave Fletcher a packet of documents he said supported the claims. See App. 74-75. Fletcher told Yesudian he was interested in the allegations and would investigate. On April 16, 1992, Parker called Yesudian into his office and, with Varghese present, read him verbatim the allegations Yesudian had made against Parker in the documents Yesudian had given Fletcher. Parker asked if Yesudian had made the allegations to Fletcher and, when Yesudian admitted that he had, Parker became visibly upset. Varghese then warned Yesudian, "[I]f you do this kind of stuff, you're not going to be in this department." App. 80. After the meeting, Yesudian sent Fletcher a letter reporting that Parker and Varghese had "threatened [him] with severe actions for inaccurately representing the efficient operation of the department to [Fletcher]," App. 82-83, and that he had "been told that somehow [he] would be 'gotten rid of' because [he] brought to [Fletcher's] attention some of the corrupt practices ... extant in the department." App. 220.

The day after the confrontation between Parker, Varghese, and Yesudian, Parker told Yesudian to obtain from the General Services Administration (GSA) a copy of a contract between the University and a fuel vendor. On the next business day, Yesudian spoke with his contact at GSA, who said she would send the contract over with two other Howard employees who were scheduled to attend a fuel users' meeting at GSA the next morning, April 21. When Yesudian told Varghese of these arrangements, Varghese insisted that Yesudian personally go that day to pick up the contract. Yesudian explained that he was without a car and had no way to get to GSA. On the morning of April 21, Varghese gave Yesudian a letter directing him to attend the fuel users' meeting that day. Yesudian refused to open the letter and told Varghese he felt sick. Yesudian requested permission to go to the employee health clinic, which Varghese refused. Parker, however, authorized Yesudian to go to the clinic on the understanding that Yesudian would attend the GSA meeting if cleared to return to work. The clinic found that Yesudian had high blood pressure and advised him to go home. Although Parker approved Yesudian's leaving for the rest of the day, Yesudian remained at work.

On April 23, 1992, Varghese accused Yesudian of insubordination for not attending the fuel users' meeting and for refusing to open the letter. Varghese recommended three months' probation and threatened termination for future infractions. Parker, however, recommended that Yesudian be fired, and Vice President Fletcher approved Yesudian's termination effective May 1. Yesudian appealed through the University's grievance procedure. Although the hearing officer found Yesudian had failed to meet his burden of showing he was terminated in retaliation for his complaints, she found the charges of insubordination unsupported and Yesudian's termination "unfair." App. 217. She did not, however, recommend reinstatement because of Yesudian's "lack of respect for the abilities and commitment of [his superiors]." App. 218. Instead, she recommended that Howard remove the termination from Yesudian's record if he agreed to accept an "early out" or retirement. Yesudian refused the offer.

II

We review de novo a district court's ruling on a motion for judgment as a matter of law. See Smith v. Washington Corp., 135 F.3d 779, 782 (D.C.Cir.1998). Entry of such a judgment is warranted only if "no reasonable juror could reach the verdict rendered in th[e] case." Anderson v. Group Hospitalization, Inc., 820 F.2d 465, 473 (D.C.Cir.1987). "In making that determination, a court may not assess the credibility of witnesses or weigh the evidence." Hayman v. National Academy of Sciences, 23 F.3d 535, 537 (D.C.Cir.1994). Moreover, "[b]ecause a judgment as a matter of law intrudes upon the rightful province of the jury, it is highly disfavored." Boodoo v. Cary, 21 F.3d 1157, 1161 (D.C.Cir.1994).

III

The district court granted Parker judgment as a matter of law on Yesudian's claim of retaliatory discharge under the False Claims Act. ² The Act imposes a civil penalty and treble damages upon any person who, among other things, "knowingly presents, or causes to be presented, to an officer or employee of the United States Government ... a false or fraudulent claim for payment or approval." 31 U.S.C. § 3729(a). Section 3730(b) provides that "private persons," commonly known as "relators," may bring a civil action for a violation of § 3729 "in the name of the Government." 31 U.S.C. § 3730(b). The statute permits the government to take over the action and conduct it itself, or to decline to take over the action, in which case the relator has the right to conduct it. See id. The relator is entitled to different percentages of any recovery from a successful False Claims Act suit, depending upon whether the relator or the government conducts the action. See 31 U.S.C. § 3730(d)(1)-(2).

Congress passed the precursor of the present statute, also referred to as the "Lincoln Law," to combat widespread fraud in defense contracts during the Civil...