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Jamison v. Fluor Federal Solutions, LLC

United States District Court, N.D. Texas, Dallas Division

July 28, 2017

MICHAEL JAMISON, Plaintiff,
v.
FLUOR FEDERAL SOLUTIONS, LLC, a South Carolina Limited Liability Company, Defendant.

          MEMORANDUM OPINION & ORDER

          JANE J. BOYLE UNITED STATES DISTRICT JUDGE.

         Before 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.

         I.

         BACKGROUND[1]

         This is 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[2] 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.

         A. Job Corps's Operations

         By way of background-and undisputed by the parties[3]-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.

         Here, 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.

         B. Plaintiff's Allegations

         Plaintiff 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 3.

         Plaintiff 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. ¶ 15.

         Plaintiff 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. ¶ 21.

         Plaintiff 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.

         In 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.

         In 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.

         In 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.

         C. Procedural History

         Plaintiff 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.

         Defendant then moved to dismiss Plaintiff's Amended Complaint under Federal Rules of Civil Procedure 9(b)[4] 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.

         II.

         LEGAL STANDARDS

         A. Rule 12(b)(6)

         Rule 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).

         To 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).

         B. Heightened Standard of Review

         Defendant 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 Resp. 11.

         The 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)).[5]

         The Court agrees with that reasoning.[6] 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. ...


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