United States ex rel. Cody v. ManTech International, 080818 FED4, 17-1722

Docket Nº:17-1722, 17-1757
Opinion Judge:TRAXLER, CIRCUIT JUDGE:
Party Name:UNITED STATES EX REL. KEVIN CODY AND MUGE CODY, Plaintiff - Appellee, v. MANTECH INTERNATIONAL, Corporation, Defendant-Appellant. UNITED STATES EX REL. KEVIN CODY AND MUGE CODY, Plaintiff - Appellant, v. MANTECH INTERNATIONAL, Corporation, Defendant-Appellee.
Attorney:Steven D. Gordon, HOLLAND & KNIGHT LLP, Washington, D.C., for Appellant/Cross-Appellee. Robert Scott Oswald, EMPLOYMENT LAW GROUP, PC, Washington, D.C., for Appellee/Cross-Appellant. Jessica L. Farmer, HOLLAND & KNIGHT LLP, Washington, D.C., for Appellant/Cross-Appellee. Nicholas Woodfield, John ...
Judge Panel:Before MOTZ, TRAXLER, and DIAZ, Circuit Judges. DIAZ, Circuit Judge, dissenting in part
Case Date:August 08, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES EX REL. KEVIN CODY AND MUGE CODY, Plaintiff - Appellee,

v.

MANTECH INTERNATIONAL, Corporation, Defendant-Appellant.

UNITED STATES EX REL. KEVIN CODY AND MUGE CODY, Plaintiff - Appellant,

v.

MANTECH INTERNATIONAL, Corporation, Defendant-Appellee.

Nos. 17-1722, 17-1757

United States Court of Appeals, Fourth Circuit

August 8, 2018

UNPUBLISHED

Argued: March 20, 2018

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, District Judge. (1:16-cv-00132-AJT-JFA)

ARGUED:

Steven D. Gordon, HOLLAND & KNIGHT LLP, Washington, D.C., for Appellant/Cross-Appellee.

Robert Scott Oswald, EMPLOYMENT LAW GROUP, PC, Washington, D.C., for Appellee/Cross-Appellant.

ON BRIEF:

Jessica L. Farmer, HOLLAND & KNIGHT LLP, Washington, D.C., for Appellant/Cross-Appellee.

Nicholas Woodfield, John T. Harrington, Jr., EMPLOYMENT LAW GROUP, PC, Washington, D.C., for Appellee/Cross-Appellant.

Before MOTZ, TRAXLER, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, dismissed in part, and remanded by unpublished opinion.

Unpublished opinions are not binding precedent in this circuit.

TRAXLER, CIRCUIT JUDGE:

Plaintiffs Kevin and Muge Cody brought this qui tam action against ManTech International Corporation, alleging numerous claims including retaliatory discharge in violation of both the False Claims Act ("FCA"), see 31 U.S.C. § 3730, and the Defense Contractor Whistleblower Protection Act ("DCWPA"), see 10 U.S.C. § 2409. A jury found in favor of the Codys, and awarded compensatory damages for emotional distress to Kevin in the amount of $500, 000 and to Muge in the amount of $300, 000. Following the verdict, ManTech moved for judgment as a matter of law under Rule 50(b) of the Federal Rules of Civil Procedure. In its motion, ManTech argued that the evidence presented at trial was insufficient to establish that ManTech terminated the Codys because they filed this action. ManTech further argued that the evidence was insufficient to support an award of damages for emotional distress, or, alternatively, that the emotional distress damages awarded by the jury were excessive and that the district court should have either remitted them or ordered a new trial on damages.

The district court denied the Rule 50(b) motion as to liability and upheld the jury's verdict in favor of the Codys on their retaliation claims under the FCA and the DCWPA.1However, the district court granted ManTech's Rule 50(b) motion "insofar as the Court f[ound] the evidence at trial insufficient to support the jury's compensatory damage awards for emotional distress," J.A. 548, and vacated the award of emotional distress damages.

ManTech appeals, renewing its argument that the evidence presented at trial was insufficient as a matter of law to establish the causation element of the Codys' retaliatory discharge claims under both the FCA and the DCWPA. The Codys cross appeal the district court's partial grant of ManTech's Rule 50(b) motion, arguing that the district court erred in finding that the evidence did not support any award of damages for emotional distress. The Codys contend further that the district court compounded this perceived error by vacating this award of damages and entering final judgment rather than granting a new trial nisi remittitur.

As set forth in more detail below, we affirm the district court's denial of ManTech's Rule 50(b) motion as to Kevin's retaliation claims. As to Muge, however, we agree with ManTech that the evidence presented at trial was insufficient as a matter of law to establish a causal nexus between the protected activity at issue-the filing of this qui tam action-and her discharge from ManTech. Accordingly, we reverse the district court's denial of ManTech's Rule 50(b) motion as it relates to Muge Cody, and we vacate the verdict as to Muge, as well as the accompanying damages awarded to Muge. Finally, we also affirm the district court's order to the extent it granted ManTech's Rule 50(b) motion for judgment as a matter of law as to emotional distress damages for Kevin and vacated the jury's award of such damages. We remand this case for entry of an amended final judgment in accordance with this opinion.

I.

We summarize the evidence in the light most favorable to Kevin and Muge, who were the non-moving parties below. ManTech is an industry-leading defense contractor specializing in the provision of "technological services" to the government of the United States. J.A. 60. Kevin started working at ManTech in 1990, rising "steadily within ManTech, eventually becoming President of the Business Unit that managed large contracts with the United States Army Tank-Automotive and Armaments Command ("TACOM") for the maintenance of Mine Resistant Ambush Protected ("MRAP") vehicles in Afghanistan and Kuwait." J.A. 548. Muge Cody began working for ManTech in 2001. The Codys met while working together at ManTech and married in 2006. Muge worked in Kevin's business unit but formally reported to another executive. Muge eventually became the program manager ("PM") for the MRAP program-an important position largely responsible for day-to-day performance on ManTech's largest contract. Both of the Codys interacted on a daily basis with the Army's contracting officer for the MRAP program and enjoyed a close working relationship with him.

The 2011-2012 Bidding Competition for the MRAP Contract

From the fall of 2011 to the spring of 2012, the Army conducted a bidding competition for a new 5-year contract for the maintenance of MRAP vehicles in Afghanistan and Kuwait. Kevin was on the bid proposal team tasked with securing the MRAP contract for ManTech. Specifically, Kevin was helping to develop the pricing component for ManTech's bid. Muge was likewise involved in developing certain aspects of ManTech's proposal.

During the bidding process, Kevin became concerned that ManTech was significantly underestimating the labor costs associated with the performance of the MRAP contract-specifically, "the amount that ManTech said it would pay its mechanics." J.A. 757. Kevin expressed his concerns to other employees working on pricing the bid during meetings and in numerous emails. Other members of the pricing team did not share Kevin's concerns, however, and the final proposal for the new MRAP contract was submitted in April 2012. At that time, Kevin sent a final email to the team reiterating that he did not concur in the pricing component of the proposal.

ManTech won the MRAP contract and, for the rest of 2012, the performance and management of the MRAP program-ManTech's largest contract-remained with Kevin's business unit. In late 2012, Kevin learned that the rates associated with the performance of the MRAP contract were being overrun-that is, the actual costs to perform the contract were greater than ManTech had estimated in developing its bid. Kevin directed that the cost overruns be investigated by his business to identify "what the issues were" and "present [them] to leadership." J.A. 1160.

ManTech's Removal of Kevin from the MRAP Contract

In December 2012, ManTech decided to remove Kevin as the executive overseeing the MRAP contract. Lou Addeo, who was then President of ManTech's Technical Services Group ("TSG"), met with Kevin on December 19 and informed him that he was being replaced on the MRAP contract by Mike Brogan. Kevin was told that this change, in part, was due to purported behavioral issues involving Muge. Although Muge was to remain as PM on the MRAP contract, ManTech thought it best that she work outside of her husband's direct chain-of-command and report instead to Brogan. Alex Urbina, the Army's contracting officer for the MRAP contract, interacted with Muge on a daily basis and was never made aware that anyone at ManTech had any concerns about the Codys being a married couple while they worked on the same contract. He had no concerns about their relationship, and it did not affect the way they worked together.

Dan Keefe, Executive Vice President for TSG, was present at this meeting and subsequently drafted a memo summarizing the points covered in the meeting, including ManTech's stated reasons for taking management responsibility over the MRAP contract away from Kevin: (1) that Muge's "personal behavior towards her managers and the larger functional team has become unacceptable and require[s] a new management team to address," and (2) that because the MRAP contract was a "terminal" program, ManTech needed Kevin to focus on developing "new business." J.A. 1846.2

Addeo then met with Muge and told her that the MRAP contract and her business unit would "not be under Kevin . . . anymore" and that, as PM for the MRAP contract, she would "be reporting to Mike Brogan" from then on. J.A. 1357. Additionally, Addeo informed Muge that a deputy program manager would be appointed to assist her. Subsequently, Nate Webster was hired to serve in the newly-created position of Deputy PM for the MRAP contract. Because the Deputy PM was not an approved position under the MRAP contract, Webster had to be paid as an "indirect" employee-his salary was an overhead expense that could not be billed to the MRAP contract. J.A. 1389. At this time, ManTech was also laying off numerous employees from Muge's MRAP staff. Once the MRAP contract came under Brogan's supervision, the Army's contracting officer Urbina noticed "decreases in velocity, in management and decision-making and coordination between management." J.A. 450.

Finally, Addeo told Muge that there had been complaints about how she treated subordinates and that she would be "chang[ing] [her] behavior," but he did not identify any specific conduct that needed to be changed. J.A...

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