United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION & ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE.
the Court is Defendant Fluor Federal Solutions, LLC's
Motion to Dismiss Plaintiff Michael Jamison's First
Amended Complaint. Doc. 24. For the following reasons, the
Court GRANTS Defendant's Motion.
an employment dispute. Plaintiff was employed as a Safety,
Security, and Transportation Manager by Defendant's
predecessor-in-interest, Del-Jen, Inc. Doc. 22, Pl.'s Am.
Compl. ¶¶ 6, 15. He now maintains that Defendant, a
Job Corps contractor, fired him in retaliation for
his participation in a November 2013 qui tam action.
Doc. 22, Pl.'s Am. Compl. ¶¶ 7-11, 27-32.
Job Corps's Operations
of background-and undisputed by the parties-the United States
Department of Labor (DOL) contracts with private companies to
run Job Corps centers. Id. ¶ 9. The Job Corps
center in this case is the North Texas Job Corps Center
(NTJCC) in McKinney, Texas. Id. The private
companies contracting with the DOL to run the NTJCC are
Defendant (along with its predecessor-in-interest, Del-Jen,
Inc.) and Career Opportunities, Inc. (COI). Id.
¶¶ 6, 9. As Defendant explains, the DOL
contracted with COI to operate the NTJCC, and COI in turn
subcontracted with Del-Jen, Inc.-and later Defendant-to
provide certain personnel and services at the NTJCC. Doc. 24,
Def.'s Mot. to Dismiss 2, 2 n.1; see also Doc.
22, Pl.'s Ex. 2. As further background: The DOL
agreements with contractors at each center are
performance-based and measured against other centers in areas
such as: (1) total number of students enrolled at the center;
(2) evaluations of students' achievement of academic and
vocational credentials; (3) initial job placements; and (4)
ongoing job placements following the initial placement. Doc.
22, Pl.'s Am. Compl. ¶¶ 9-10; Doc. 24,
Def.'s Mot. to Dismiss 2. Favorable performance,
Plaintiff says, results in incentive fees, bonuses, and
contract extensions for the companies. Doc. 22, Pl.'s Am.
Compl. ¶ 9.
Plaintiff maintains that in operating the centers, companies
such as Defendant and COI must follow the requirements of 29
U.S.C. §§ 2881, et seq.; 20 C.F.R. Parts
638 and 670; the DOL Job Corps Office “Policy and
Requirements Handbook” (PRH); and guidelines and
procedures established by the Secretary of Labor
(collectively, the Guidelines). Doc. 22, Pl.'s Am. Compl.
¶ 9; see also Doc. 24, Def.'s Mot. to
Dismiss 3. The Guidelines specifically mandate that students
have the following Job Corps qualifications: (1) legal
residency status; (2) emotional stability without objective
behavioral problems; (3) no criminal record; (4) no use of
illegal drugs; and (5) no face-to-face court or institutional
supervision or court-imposed fines while enrolled in Job
Corps. Doc. 22, Pl.'s Am. Compl. ¶ 12; Doc. 24,
Def.'s Mot. to Dismiss 3. According to the parties, the
Guidelines also require program centers such as NTJCC to
enforce a zero tolerance policy for students using drugs and
other controlled substances, committing any act of violence
against another student (such as assault, rape, or other
bodily harm), or engaging in inappropriate sexual behavior.
Doc. 22, Pl.'s Am. Compl. ¶ 12; Doc. 24, Def.'s
Mot. to Dismiss 3.
asserts that on November 15, 2010, Del-Jen, Inc. entered into
a Concurrent Jurisdiction Agreement in which it agreed to
notify the McKinney Police Department of any offenses
committed on NTJCC property. Doc. 22, Pl.'s Am. Compl.
¶ 13. The NTJCC Director, Omoniyi Amoran, agreed to a
substantially similar agreement on August 30, 2013.
Id. ¶ 14; Doc. 24, Def.'s Mot. to Dismiss
was hired by Del-Jen, Inc. in August 2012 as the Safety,
Security, and Transportation Manager for NTJCC. Doc. 22,
Pl.'s Am. Compl. ¶ 15; Doc. 24, Def.'s Mot. to
Dismiss 1. In that capacity, Plaintiff says, his job was to
follow the Guidelines and ensure student safety from any type
of violence or drug abuse. Doc. 22, Pl.'s Am. Compl.
claims that about a week after he started, he used a key
given to him by Maria Martin, his immediate supervisor and an
employee of COI, to open a door in the security department.
Id. ¶ 17. Inside, Plaintiff avers, he observed
various types of drugs and contraband explicitly mentioned in
the Guideline's zero tolerance policy. Id.
Plaintiff says that he was informed by Martin and Jeffrey
Joseph, the lead security day supervisor, that the items in
the room had been taken from students without any
disciplinary action or consequences. Id. Plaintiff
claims that he was also informed that NTJCC had its own
amnesty policy. Id. ¶ 20. Under the policy,
says Plaintiff, students returning from off-campus could
voluntarily turn over any contraband without being reported,
disciplined, or having the police called. Id. In
addition, Plaintiff maintains, NTJCC had a box located
outside the security office used by students to voluntarily
deposit contraband without consequence. Id. ¶
alleges that over the course of his first two months at
NTJCC, he observed 3-10 incidents per day ranging from
physical violence to drug use. Id. ¶ 22.
Plaintiff, in turn, reported the incidents to the McKinney
Police Department. Id. From August 2012 to December
2012, Plaintiff or his staff contacted the Police about 50
times. Id. But at some point between September and
October of 2012, Martin told him to stop calling the police.
Id. Plaintiff claims that other employees informed
him that, although he was doing a good job, he would be fired
because “each student was worth $50, 000-$60, 000 from
the DOL” as long as they stayed in the program.
Id. About four months later, according to Plaintiff,
Martin instructed other security staff not to contact
Plaintiff when incidents arose and moved all investigation
responsibilities to the Equal Employment Opportunity
Commission (EEOC). Id. ¶¶ 23-24. Plaintiff
also alleges that Martin and Amoran told him on several
occasions that he would be fired if he called the police
again. Id. ¶ 25.
November 2013, Plaintiff was one of four relators in a
qui tam action filed in the Northern District of
Texas. Id. ¶ 27. After filing the qui
tam suit, Plaintiff met with the United States
Attorney's Office and the DOL Office of Inspector
General. Id. ¶ 28.
early December 2013, an employee notified Plaintiff that
Martin was telling employees not to give any information to
Plaintiff. Id. ¶ 29. Around the same
time, Plaintiff was relieved of his duties, stripped of his
investigative powers, and barred completely from any
management meetings. Id. Plaintiff maintains that
according to the employee, “there was every indication
that the qui tam filing and the information from the
meeting with the U.S. Attorney's Office had been leaked
to Defendant and the management at NTJCC.” Id.
January 2014, Plaintiff submitted a written complaint to
NTJCC's human resources department (the Internal Report)
that detailed Plaintiff's complaints. Id. ¶
30. In the written complaint, he discusses the instructions
to not contact the police, his treatment, and Martin's
control over student investigations, saying Martin
“strategically manipulate[s] the investigation process
of [student incidents]” and “[uses] program
longevity as the primary determining factor for
discipline.” Doc. 22, Pl.'s Am. Compl. Ex. 2,
Internal Report 2. Plaintiff alleges that he was then told by
another employee that he would be fired if he complained to
the DOL. Doc. 22, Pl.'s Am. Compl. ¶ 30. Plaintiff
was suspended in May 2014 and fired on June 20, 2014.
Id. ¶¶ 31-32; Doc. 22, Pl.'s Ex. 3,
Notice of Termination. Based on that timeline, Plaintiff
believes that he was fired in retaliation for trying to shed
light on Defendant's activities by filing the qui
tam suit and Internal Report. See Doc. 22,
Pl.'s Am. Compl. ¶¶ 29-36.
filed the present suit in February 2016, asserting a
retaliatory discharge claim under the False Claims Act (FCA),
31 U.S.C. § 3730(h). See Doc. 1, Pl.'s
Compl. After some initial confusion as to which entity ought
to be the named defendant, Plaintiff amended his pleadings to
include the correct parties. Doc. 22, Pl.'s Am. Compl.
then moved to dismiss Plaintiff's Amended Complaint under
Federal Rules of Civil Procedure 9(b) and 12(b)(6) for failure to
state a plausible claim for relief. Doc. 24, Def.'s Mot.
to Dismiss. Plaintiff responded. Doc 28, Pl.'s Resp. to
Def.'s Mot. to Dismiss [hereinafter, Pl.'s Resp.].
And Defendant replied. Doc. 29, Def.'s Reply to Pl.'s
Resp. [hereinafter Def.'s Reply]. The Motion is thus ripe
for the Court's review.
12(b)(6) authorizes the court to dismiss a plaintiff's
complaint for “failure to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). In
considering a Rule 12(b)(6) motion to dismiss, “[t]he
court accepts all well-pleaded facts as true, viewing them in
the light most favorable to the plaintiff.” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007)(quoting Martin K. Eby Constr. Co. v. Dall.
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
The court will “not look beyond the face of the
pleadings to determine whether relief should be granted based
on the alleged facts.” Spivey v. Robertson,
197 F.3d 772, 774 (5th Cir. 1999).
survive a motion to dismiss, a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. When well-pleaded facts fail to achieve this
plausibility standard, “the complaint has alleged-but
it has not shown-that the pleader is entitled to
relief.” Id. at 679 (internal quotation marks
and alterations omitted).
Heightened Standard of Review
argues that the Court should use Federal Rule of Civil
Procedure 9(b)'s heightened pleading standard because the
FCA is an anti-fraud statute. Doc. 24, Def.'s Mot. to
Dismiss 9. Rule 9(b) states that when “alleging fraud
or mistake, a party must state with particularity
the circumstances constituting fraud or mistake.”
Fed.R.Civ.P. 9(b) (emphasis added). Plaintiff argues the
Court should instead apply the ordinary pleading standard
under Rule 8(a), which requires only “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2); Doc. 28, Pl.'s
Fifth Circuit has not addressed the issue specifically. But
most courts that have, including fellow district courts in
the Fifth Circuit, have held that FCA retaliatory discharge
claims under 31 U.S.C. § 3730(h) “‘need only
meet the Rule 8(a) standard.'” Guerrero v.
Total Renal Care, Inc., No. EP-11-cv-449-KC, 2012 WL
899228, at *3 (W.D. Tex. Mar. 12, 2012) (quoting Thomas
v. ITT Educ. Servs., Inc., No. 11-544, 2011 WL 3490081,
at *3 (E.D. La. Aug. 10, 2011)).
Court agrees with that reasoning. A retaliatory discharge
claim under 31 U.S.C. § 3730(h) does not rely on a
showing of fraud. See Guerrero, 2012 WL 899228, at
*3 (“These courts of appeal reasoned that because
retaliation claims under the FCA are not dependant on
allegations of fraud, Rule 9(b)'s heightened standard
should not be applied.”). Thus, Rule 8(a)'s
ordinary pleading standard, not Rule 9(b)'s heightened
standard, applies. See Id. (collecting cases);
see also McCrary v. Knox Cty., 200 F.Supp.3d 782,
786 n.1 (S.D. Ind. 2016); United States ex rel. Wood v.