United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
NANCY
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE.
Before
the Court in this False Claims Act (“FCA”)
retaliation lawsuit is Defendant Houston Housing
Authority's (“HHA”) Brief in Support of
Renewed Motion for Judgment as a Matter of Law, or
Alternatively, Motion for New Trial or Remittitur
(“HHA's Motion”) [Doc. # 257].[1] Plaintiff Karen
Miniex filed a response.[2] The Motion is ripe for
decision.[3] Based on the parties' briefing,
pertinent matters of record, testimony and evidence
introduced at trial, and relevant legal authority, the Court
grants in limited part and otherwise denies
Defendant HHA's Motion.
I.
INTRODUCTION
Defendant
HHA, one of the nation's largest public housing
authorities, hired Plaintiff Karen Miniex in March 2012 to
serve as its general counsel. Miniex served in that role
until HHA's President and CEO, Tory Gunsolley, terminated
her employment in December 2016 following a dispute over the
proper handling of a fraud investigation. After her
termination, Miniex sued HHA, alleging she was retaliated
against in violation of the FCA for reporting her concerns
about systemic fraud in HHA's housing voucher program.
After a six-day trial, [4] the jury entered a verdict in
Miniex's favor.[5] Pursuant to the jury's verdict, the
Court awarded Miniex $751, 502 in back pay, $600, 000 in
front pay, $46, 786 in pre-judgment interest, and $317, 750
and $215, 000 in past and future mental anguish,
respectively.[6]
HHA
seeks judgment as a matter of law (“JMOL”), a new
trial, or remittitur. HHA contends JMOL is appropriate
because no reasonable jury could find, based on the trial
evidence and testimony, that Miniex proved three essential
elements of her FCA retaliation claim-namely, that her
reports were protected, went beyond her job duties, and were
known of by Gunsolley. HHA next asserts that a new trial is
warranted based on allegedly erroneous jury instructions and
Miniex's lack of evidence suggesting that her reports
caused Gunsolley to discipline and terminate her. Finally,
HHA argues Miniex's wage and noneconomic damages awards
are unsupported by evidence, excessive, and should be
remitted.
The
majority of HHA's arguments lack merit. The Court
concludes that the jury was properly instructed and
reasonably found for Miniex on all essential elements of her
FCA retaliation claim. Moreover, the back pay award is
supported by trial evidence and is not excessive. The Court,
however, concludes that Miniex's front pay and
noneconomic damage awards are excessive. The Court therefore
denies in large part HHA's Motion, but
downwardly amends Miniex's front pay award to $216, 861
and Miniex's future noneconomic damage award to a nominal
figure of $100. The Court further grants
HHA's Motion for remittitur of Miniex's past
noneconomic damages and requires Miniex to elect between
lowering her past noneconomic damages to $217, 070.34 and the
Court holding a new trial.
II.
BACKGROUND
The
parties' proof at trial established the following facts.
HHA is a governmental entity that provides affordable housing
to low-income individuals in the Houston area.[7] To fulfil its
mission, HHA administers public housing and issues housing
vouchers to eligible individuals through its Housing Choice
Voucher Program (“HCVP”).[8] HHA also administers a
Veterans' Affairs Supportive Housing (“VASH”)
program, which provides housing vouchers to chronically
homeless veterans referred through the Veterans
Administration (“VA”).[9] While the VASH program has
distinct eligibility requirements from HCVP, the VASH program
is managed by HCVP management.[10] HHA's primary source of
funding for its programs is the U.S. Department of Housing
and Urban Development (“HUD”).[11]
In
March 2012, Tory Gunsolley, HHA's President and CEO,
hired Karen Miniex to serve as HHA's general
counsel.[12] From 2012 through 2015, Gunsolley
awarded Miniex positive reviews and pay raises.[13]
As
HHA's general counsel, Miniex oversaw investigations into
employee and client fraud.[14] HHA's fraud investigator,
Benjamin Skalka, reported directly to Miniex.[15] When Skalka
investigated fraud, he communicated his findings to Miniex,
she directed his efforts, and they coordinated the drafting
of formal fraud reports.[16] When a fraud report was finalized,
Miniex submitted the report to Gunsolley.[17] If Gunsolley
decided it was appropriate, he would present the matter to
HHA's Board of Commissioners (“Board”),
[18]
HHA's governing authority.[19] Both Miniex and Skalka would
frequently contact and work with HUD's Office of
Inspector General (“HUD-OIG”), the division in
HUD tasked with combatting fraud.[20]
In the
first half of 2016, Skalka discovered that two HHA employees
within the HCVP program, Shawntea Radford and Carmen Newland,
were involved in separate fraudulent schemes to sell housing
vouchers.[21] During his two investigations, Skalka
observed HCVP protocol violations and other management
decisions that raised his suspicions that a fraud cover-up
was ongoing.[22] Skalka's investigations, his and
Miniex's subsequent reports, and HHA's handling of
those reports are a focus of this lawsuit.
Skalka
began his investigation into Radford in late January
2016.[23] During this investigation, Skalka
learned that while Radford was working for HHA, she had been
arrested for felony tampering with government documents and
received deferred adjudication.[24] Robin Walls, HCVP's
director, conducted witness interviews and investigated
Radford's fraud without informing Skalka or the legal
department.[25]
On
February 11, 2016, Miniex submitted to Gunsolley a report by
Skalka concerning Radford's fraud in the HCVP
program.[26] Miniex informed Gunsolley she had
notified HUD-OIG about Radford's fraud.[27] As a result
of the incident, Radford was suspended and her employment at
HHA was terminated thereafter.[28]
Skalka
began his investigation into Newland in May
2016.[29] Before Skalka was informed of the
matter, Walls conducted an internal investigation and
concluded that the problems arose from administrative errors
by the VA.[30] Skalka would later find this conclusion
implausible because documents within the relevant files had
clearly been manipulated; name entries had been whited out
and written over by hand.[31] According to Skalka, the fraud
was “black and white.”[32] On the day Skalka began
his investigation in earnest, Mark Thiele, the Vice President
of HCVP, provided Skalka with a stack of client files that
Thiele and Walls had identified were not VASH
eligible.[33] This was suspicious to Skalka because it
indicated HCVP management had known of multiple
transgressions but had not informed Skalka or the legal
department.[34] Skalka also learned Walls had approved
Newland for unlimited overtime while Newland was under
investigation for a different problem, time clock fraud, and
Newland averaged 20 to 40 overtime hours a
week.[35] Newland's direct supervisor,
Patricia Doggett, admitted during an interview with Skalka
that she was “unclear” as to her duties, had not
done a quality control screening on Newland's files, and
she “didn't want to throw Carmen Newland under the
bus.”[36]
On June
14, 2016, Miniex submitted to Gunsolley a report by Skalka on
Newland's fraud in connection with the VASH program,
along with several exhibits documenting Newland's
fraudulent scheme.[37] Skalka concluded that Newland had been
selling VASH vouchers to persons with no association with the
VA.[38] Along with Skalka's report, Miniex
submitted a cover letter where she recommended Newland's
termination.[39] Miniex further recommended the
termination of three HCVP managers-Mark Thiele, Robin Walls,
and Patricia Doggett-for negligent supervision.[40] Miniex
reasoned that based on the level of fraudulent activities
Radford and Newland had achieved, the HCVP managers knew or
should have known of the fraud.[41] Miniex requested that she
be allowed to present the Newland matter to HHA's Board,
and recommended that HHA hire a third party to investigate
how widespread the problem was and whether vouchers were
being fraudulently issued on a systemic basis.[42] Miniex added
that she had informed HUD-OIG of Newland's fraud and that
she deferred to Gunsolley, HHA's Board, and HUD-OIG on
next appropriate steps.[43]
Gunsolley
responded to Miniex the same day he received Skalka's
report, the exhibits, and Miniex's cover
letter.[44] Gunsolley explained that he was not
convinced that there was enough evidence to terminate anyone,
including Newland or Doggett, even though he had not read the
attached exhibits.[45] Gunsolley also told Miniex that the sale
of veterans vouchers did not really matter because there were
more vouchers than veterans.[46] Gunsolley directed Skalka to
interview Robin Walls regarding unspecified
inaccuracies.[47] Skalka interviewed Walls, who said that
discrepancies in VASH files were attributable to VA
errors.[48] Skalka did not credit this assertion and
determined that the only inaccuracy in his report was a
misspelling of Walls's name.[49] Following several more
interviews, Skalka submitted an amended report, correcting
the spelling error.[50] Bryce, who also was present during the
Walls interview, advised Gunsolley in an email that he should
consider hiring a third party to investigate “whether
vouchers are being issued fraudulently on a systemic
basis.”[51] Bryce acknowledged that “[t]wo
incidents in such a short period of time certainly gives one
pause as to just how widespread the problem may
be.”[52]
On June
20, 2016, Gunsolley and Miniex met to discuss Skalka's
amended report and her recommendations to terminate HCVP
management and hire an outside investigator.[53] Gunsolley,
who still had not reviewed the relevant exhibits at the time,
did not respond or answer how he would handle either of
Miniex's recommendations.[54] Miniex asked for permission to
present her report at the Board meeting the next
day.[55] Gunsolley denied her
request.[56]
On June
21, 2016, before the Board convened, Gunsolley called Miniex
to his office.[57] Gunsolley told Miniex he would recommend
termination of Newland but not Doggett, Walls, or
Thiele.[58] Miniex asked Gunsolley how he could
reach this conclusion without reviewing the exhibits, and
Gunsolley explained that a review would not change
anything.[59] As Miniex left Gunsolley's office,
Gunsolley asked Miniex to be a “team player, ” if
she was “happy working at HHA, ” and to think
about whether she wanted to be at HHA.[60]
At the
Board meeting, Gunsolley presented Newland's fraud as a
personnel matter.[61] Gunsolley told the Board that despite
the discovery of two fraudulent schemes to sell vouchers, no
systemic issues in HCVP existed.[62] Gunsolley explained that
part of the reason Newland's fraud went undetected was
because of issues HHA had coordinating with the VA and that
the problem could be the result of administrative
errors.[63] Miniex, who was present at the Board
meeting, did not speak on the Newland matter.[64]
On June
22, 2016, Miniex sent an email to Gunsolley memorializing
their June 21, 2016, meeting and stating that she found
several of his statements threatening.[65] In response,
Gunsolley drafted, but did not send, an email demanding an
apology from Miniex, adding that if she could not apologize,
she needed to seek employment elsewhere.[66] Gunsolley
never sent the email.[67]
On June
23, 2016, Miniex contacted Nicole Taylor, counsel for the
Board, and stated she believed that Gunsolley had not been
forthright with the Board in reporting the Newland
matter.[68] Taylor told Miniex to send her and two
other Board members Miniex's and Skalka's fraud
investigation report and exhibits.[69]Miniex did so and
contacted the two Board members about her
concerns.[70]
On or
before June 30, 2016, Gunsolley learned that Miniex had
contacted members of HHA's Board about her concerns
regarding the Newland fraud investigation.[71] Gunsolley
testified at trial that this “really ticked [him]
off.”[72]Around this time, according to Miniex,
her interactions with Gunsolley became hostile and Gunsolley
started to avoid and ignore her.[73]
On June
30, 2016, Gunsolley responded to Miniex's June 22, 2016,
email.[74]Gunsolley stated that he had decided to
hire a third party to investigate HCVP.[75] In July 2016,
HHA's Board hired a third-party investigator, Katie
Anderson of the law firm Strasburger & Price LLP, to
investigate HCVP.[76]
At some
point in July or August 2016, Miniex and Skalka attended a
confidential, off-site meeting with HUD-OIG.[77] FBI agents
were present at the meeting, which neither Miniex nor Skalka
had previously experienced.[78] Miniex and Skalka turned over
their reports on Newland's fraud and discussed the
Newland matter.[79] HUD-OIG and the FBI asked Miniex and
Skalka questions regarding Gunsolley as well as HHA's
purchase of various properties for use as public housing
units.[80] After the meeting with HUD-OIG and the
FBI, Skalka told David Bryce and Bennett Reaves, two
attorneys who worked under Miniex, about the meeting and what
transpired.[81]
On
September 2, 2016, Reaves and Bryce met with Gunsolley to
discuss concerns they had with Miniex. Both stated Miniex had
become completely disengaged from her job; was telling
attorneys not to do work requested of them by others in HHA;
was not responding to emails; had repeatedly cancelled staff
meetings; was refusing to meet with Reaves and Bryce; was
intentionally slowing down work in the legal department; and
was habitually absent and tardy.[82] Bryce told Gunsolley he
had been monitoring and recording Miniex's attendance for
years and that Miniex was habitually tardy and
absent.[83] Gunsolley asked Reaves and Bryce to
reduce their concerns to writing, and they both turned in
written reports on September 7, 2016.[84] Reaves's
and Bryce's written memoranda each reported multiple
specific examples of Miniex's misconduct and
disengagement.[85]Bryce also submitted a calendar that
allegedly documented when Miniex arrived and left the office
from May to September 2016.[86] This calendar purports to show
that Miniex was chronically tardy and absent during that time
period.[87] Both Reaves and Bryce stated in their
reports that Skalka had told them Miniex had met with HUD-OIG
and the FBI regarding the Radford and Newland incidents and
the FBI asked questions about Gunsolley and whether he was
involved.[88]
On
September 8, 2016, without interviewing anyone else in the
legal department, Gunsolley met with Miniex[89] and issued
her what the parties refer to as a “Verbal Written
Warning.”[90] Gunsolley cited Miniex's tardies,
unscheduled absences, failure to communicate tardies and
absences, productivity concerns, and attitude and
professionalism as the basis for the warning.[91] Gunsolley
stated that he needed Miniex “to resolve and set aside
any issues that are lingering from our conversations related
to the VASH investigation” and that he needed Miniex
“to get on the team and be a team
player.”[92]
On
September 13, 2016, Miniex filed a grievance against
Gunsolley with the Board, asserting Gunsolley's Verbal
Written Warning was retaliation for her whistleblower
activity.[93]
On
September 16, 2016, Katie Anderson, the attorney HHA hired to
perform the third party investigation of the HCVP program,
completed her investigation.[94]Anderson acknowledged that she
made a “cost-effective decision” not to
investigate allegations that two other former HCVP housing
specialists had been involved in Newland's fraudulent
scheme.[95] Anderson concluded that HCVP management
was not involved in and did not have actual knowledge of
Newland's fraudulent scheme, in part, because of
HCVP's failure to supervise Newland.[96]Anderson
concluded that Patricia Doggett-Newland's direct
supervisor whom Mark Thiele and Robin Walls in turn
supervised-was “probably not qualified or capable to
perform the functions of [her] job.”[97] Doggett
herself complained to Anderson that HCVP had systemic
problems and “no one was watching.”[98]Anderson
concluded that HCVP lacked enough “checks and
balances” to prevent Newland's fraud and that she
would characterize the problem as negligent
supervision.[99]
On
November 16, 2016, HHA retained an independent investigator
who reviewed Miniex's grievance.[100] The
investigator only interviewed Reaves and Bryce in the legal
department and did not investigate any of the examples of
productivity issues Reaves and Bryce identified in their
memoranda.[101]On November 29, 2016, Gunsolley met
with Miniex and suspended her with pay and without email
access.[102]
On
December 8, 2016, HHA's Board sent Miniex a letter
explaining that the independent investigator determined her
grievance was unfounded and that Gunsolley's September 8,
2016, Verbal Written Warning was appropriate.[103]
On
December 9, 2016, Gunsolley sent Miniex a termination letter,
citing her unscheduled absences, tardies, poor productivity,
disengagement, and failure to acknowledge these issues as
legitimate as the basis for her termination.[104]
Miniex
filed this lawsuit on February 27, 2017.[105] Miniex
asserted claims for FCA retaliation, deprivation of due
process, and interference and retaliation with her rights
under the Family and Medical Leave Act.[106] After
substantial discovery, HHA moved for summary judgment
dismissal of all claims.[107]
Magistrate
Judge Dena Palermo recommended granting HHA's motion in
full.[108]This Court adopted in part and
overruled in part Judge Palermo's recommendation, and
granted summary judgment in favor of HHA on all Miniex's
claims except her FCA retaliation claim.[109]
After a
six-day jury trial on the FCA retaliation claim, the jury
found for Miniex.[110] Based on the jury's verdict, the
Court entered final judgment for Miniex, awarding her $751,
502 in back pay, $46, 786 in pre-judgment interest on her
back pay, $600, 000 in front pay, $317, 750 for past mental
anguish, and $215, 000 for future mental
anguish.[111]
III.
RENEWED MOTION FOR JUDGMENT AS A MATTER OF
LAW
To
succeed on her FCA retaliation claim, Miniex must demonstrate
(1) she engaged in protected activity under the FCA, (2) HHA
knew she engaged in protected activity, and (3) she suffered
an adverse employment action because she engaged in protected
activity. See 31 U.S.C. § 3730(h)(1); U.S.
ex rel. Bias v. Tangiapahoa Par. Sch. Bd., 816 F.3d 315,
323 (5th Cir. 2016). HHA asserts judgment as a matter of law
(“JMOL”) is warranted for two reasons. First, HHA
argues the contents of Miniex's reports are not protected
by the FCA. Second, HHA contends that because reporting fraud
was one of Miniex's job duties as HHA's general
counsel, Miniex cannot, as a matter of law, demonstrate
either that her reports were protected activity or that HHA
had notice of her allegedly protected activity.
Both
grounds are unpersuasive. As explained hereafter, HHA's
first argument is forfeited because HHA failed to raise it in
its original motion for JMOL. In any event, on the merits,
the Court concludes the contents of Miniex's reports are
protected under the FCA. HHA's second argument fails
because the jury could, and did, reasonably find that
Miniex's reporting went beyond the scope of her job
duties and HHA had notice of her reports. Therefore, the
Court denies HHA's renewed motion for
JMOL.
A.
Legal Standard for Judgment as a Matter of Law
Under
Federal Rule of Civil Procedure 50, a party may, before the
case has been submitted to the jury, move for judgment as a
matter of law on an issue. Fed.R.Civ.P. 50(a)(2). “The
motion must specify the judgment sought and the law and facts
that entitle the movant to the judgment.” Id.
The Court may grant JMOL on an issue if it “finds that
a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.”
Id. 50(a)(1). If the Court does not grant the
motion, the movant may renew its motion for JMOL following
the entry of judgment. Id. 50(b).
“A
litigant cannot obtain judgment as a matter of law unless the
facts and inferences point so strongly and overwhelmingly in
the movant's favor that reasonable jurors could not reach
a contrary conclusion.” OneBeacon Ins. Co. v. T.
Wade Welch & Assocs., 841 F.3d 669, 675 (5th Cir.
2016) (internal quotation marks omitted). The Court must draw
“all reasonable inferences in the light most favorable
to the verdict and cannot substitute other inferences that we
might regard as more reasonable.” Id.
“[I]t is the function of the jury as the traditional
finder of the facts, and not for the Court, to weigh
conflicting evidence and inferences, and determine the
credibility of witnesses.” Roman v. W. Mfg.,
Inc., 691 F.3d 686, 692 (5th Cir. 2012).
“Any
argument made in a renewed motion for judgment as a matter of
law under Rule 50(b) must have been previously made in a
motion for judgment as a matter of law under Rule
50(a).” OneBeacon Ins. Co., 841 F.3d at 676.
“If a party fails to move for judgment as a matter of
law under Federal Rule of Civil Procedure 50(a) on an issue
at the conclusion of all of the evidence, that party waives
both its right to file a renewed post-verdict Rule 50(b)
motion and also its right to challenge the sufficiency of the
evidence on that issue on appeal.” Flowers
v. S. Reg'l Physician Servs. Inc., 247 F.3d 229,
238 (5th Cir. 2001). See also In re Isbell
Records, Inc., 774 F.3d 859, 867 (5th Cir. 2014)
(“Since a Rule 50(b) motion ‘is technically only
a renewal of the [Rule 50(a) motion for judgment as a matter
of law] . . . it cannot assert a ground that was not included
in the [original] motion.'” (alterations in
original) (quoting Mozingo v. Correct Mfg. Corp.,
752 F.2d 168, 172 (5th Cir. 1985))); Arsement v.
Spinnaker Expl. Co., LLC, 400 F.3d 238, 247 (5th Cir.
2005) (“If a party fails to raise an issue in its Rule
50(a)(1) motions at trial, it may not do so in its post-trial
Rule 50(b) motion.”).
B.
HHA's Argument that the Contents of Miniex's
Reporting Are Not Protected Is Forfeited and, Alternatively,
Without Merit
1.
Applicable Standard
Under
the FCA's anti-retaliation provision, an employer is
prohibited from retaliating against an employee for any
“lawful acts done . . . in furtherance of an [FCA]
action . . . or other efforts to stop . . . violations of
[the FCA].” 31 U.S.C. § 3730(h)(1). The parties
agree that the FCA's scope of protection against
retaliation is governed by the “distinct
possibility” standard.[112] Under this standard,
“an employee's actions must be aimed at matters
that reasonably could lead to a viable claim under the Act,
” but the “employee need not ‘have filed an
FCA lawsuit or . . . have developed a winning claim at the
time of the alleged retaliation.'” See U.S. ex
rel. George v. Bos. Sci. Corp., 864 F.Supp.2d 597,
604-05 (S.D. Tex. 2012) (quoting U.S. ex rel. Karvelas v.
Melrose-Wakefield Hosp., 360 F.3d 220, 236 (1st Cir.
2004)). To satisfy this standard, the employee's actions
must be motivated by a “good faith” and
objectively reasonable belief- i.e., “a
reasonable employee in the same or similar circumstances
might believe”- that her “employer is committing
fraud against the government.” See Id. at 605.
See also Thomas v. ITT Educ. Servs., Inc., 517
Fed.Appx. 259, 263 (5th Cir. 2013) (per curiam) (“A
protected activity is one motivated by a concern regarding
fraud against the government.”).
Miniex
asserts that the contents of her reports to the Board,
HUD-OIG, and the FBI are protected under the FCA because she
reported that HCVP lacked effective “internal
controls”-the omission of which could mask ongoing
financial fraud and could lead to future fraud. She also
focuses on her recommendation that HHA retain a third party
investigator to determine whether vouchers were being issued
fraudulently on a systemic basis.[113]
HHA
responds that Miniex's reporting is not protected as a
matter of law. First, HHA argues Miniex's reports
amounted only to “personnel matters, ”
specifically, a recommendation to terminate Patricia Doggett,
Robin Walls, Mark Thiele for negligent supervision. HHA also
argues that, even if Miniex's reports addressed a lack of
internal financial controls, a nexus between Miniex's
reports and a viable, non-speculative FCA claim is required.
Miniex's reports, HHA argues, lack a requisite nexus to a
viable FCA claim because her reports ultimately involved
unsubstantiated allegations of fraud.
2.
Forfeiture of Arguments by HHA
The
Court holds HHA's arguments are forfeited. At the close
of evidence, HHA moved for JMOL, raising three grounds, none
of which were the argument now asserted.[114]
Importantly, HHA's only argument that Miniex's
relevant reporting was not protected was because reporting
was one of her job duties. In its renewed motion for JMOL, by
contrast, HHA argues the substantive contents of Miniex's
reports are not protected by the FCA. HHA did not argue at
trial that what Miniex reported was not subject to
the FCA's protections. HHA's omission in its Rule
50(a) motion at trial precludes it from raising its new
ground in its renewed motion for JMOL under Rule 50(b).
See Isbell Records, 774 F.3d at 867;
Arsement, 400 F.3d at 247. HHA's arguments are
forfeited and not properly before the Court. See
OneBeacon Ins. Co., 841 F.3d at 676; Flowers,
247 F.3d at 238.
3.
Merits of HHA's Rule 50(b) Arguments
Despite
forfeiture, the Court addresses HHA's arguments for JMOL.
These contentions lack merit. The jury could reasonably have
concluded that Miniex's reports had the requisite nexus
to a viable FCA claim and were not merely about personnel
matters.
Miniex's
report recommended HHA terminate HCVP's management
because, under their supervision, Newland perpetrated a
fraudulent scheme. Believing Newland's fraudulent scheme
involved more HHA employees than just Newland, Miniex
recommended HHA hire a third party investigator to determine
the scope of fraudulent activities. The jury could reasonably
have found that these two recommendations were “aimed
at matters that reasonably could lead to a viable claim under
the Act, ” even if no “winning claim”
existed at the time she reported. See George, 864
F.Supp.2d at 605. Indeed, HHA does not argue that systemic
fraudulent sale of housing vouchers would not give rise to a
viable FCA claim.
The
jury reasonably could have concluded that Miniex, when she
reported, had a good faith and objectively reasonable belief
that staff at HHA could be continuing to commit fraud by
misdirecting federal funds.[115] To attempt to demonstrate
Miniex was unreasonable in her belief that fraud might be
systemic and widespread, HHA cites Katie Anderson's
findings that HCVP management did not participate in
Newland's scheme and were not aware of Newland's
fraud. Even if the jury credited Anderson's findings, the
jury could reasonably have concluded Miniex's belief that
there might be ongoing fraud was reasonable at the time of
her reporting. Anderson herself testified that it was
reasonable for Miniex to recommend a third party
investigation into HCVP to determine whether there was
ongoing fraud.[116] At least two other HHA employees
harbored suspicions that there may be ongoing fraud within
HCVP. First, Skalka testified that he was suspicious that a
fraud cover-up was ongoing and had previously recommended an
audit of the entire HCVP department.[117] Second,
Bryce advised Gunsolley that he should consider hiring a
third party to investigate “whether vouchers are being
issued fraudulently on a systemic basis” and
acknowledged that “[t]wo incidents in such a short
period of time certainly gives one pause as to just how
widespread the problem may be.”[118]
The
jury also could have reasonably inferred that the reports
exceeded mere “personnel” recommendations based
on the report's recipients. By reporting to HUD-OIG and
the FBI-entities that investigate possible fraud on the
federal government, not employer's personnel
decisions-Miniex's conduct strongly suggests that she was
“motivated by a concern regarding fraud against the
government” and not mere personnel matters. See
Thomas, 517 Fed.Appx. at 262.
HHA
cites U.S. ex rel. Patton v. Shaw Services, L.L.C.,
for the proposition that allegations of general misconduct
are not protected. See 418 Fed.Appx. 366, 372 (5th
Cir. 2011) (per curiam). In Patton, the Fifth
Circuit found that the substance of the employee's
complaints concerned “allegedly unsafe or improper
construction methods, and not that [the employee] was
concerned that [the employer] was defrauding the
government.” See Id. Unlike Patton,
where the employee's internal complaints lacked
“any suggestion that [he] was attempting to expose
illegality or fraud, ” see id., Miniex's
reporting expressly states that, based on the
“seriousness” of the discovered “fraudulent
activities, ” a third party should investigate to
determine “whether vouchers are being issued
fraudulently on a systemic basis” and “to
determine how widespread the problem may
be.”[119] Cf. Robertson v. Bell Helicopter
Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994)
(concluding an employee's reporting was not protected
when he “never used the terms ‘illegal,'
‘unlawful,' or ‘qui tam action'
in characterizing his concerns”). Because housing
vouchers issued to unqualified individuals would involve
misuse of federal funds, the jury could reasonably have
concluded that Miniex's reports involved more than mere
personnel recommendations or allegations of general
misconduct. Miniex's reports in 2016 had the requisite
nexus to a potentially viable FCA claim.
C.
The Jury Could Reasonably Have Concluded Miniex's
Reporting to the Board and the FBI Were Outside the Scope of
Her Job Duties and Gave HHA Notice of Her Protected
Activity
The
parties do not contest, for present purposes, that Miniex had
the burden to demonstrate at least one of her protected
activities was outside the scope of her job duties in order
to demonstrate HHA had notice of her protected
activities.[120]
The
jury found that the protected activities in which Miniex
engaged were outside the scope of her job
duties.[121] HHA contends that, based on the trial
evidence, no reasonable jury could reach this conclusion and
therefore judgment as a matter of law is warranted.
The
Court is unpersuaded. The jury reasonably found that
Miniex's reporting the HCVP matters was outside the scope
of her job duties. Miniex claims her reporting to the Board,
to HUD-OIG, and to the FBI each were protected activities.
Based on the evidence and testimony at trial, the jury
reasonably could have concluded that Miniex's direct
reports to the Board and FBI were beyond the scope of her job
duties.
First,
the jury reasonably could have found that Miniex's
reporting Newland's fraud directly to Board members, over
Gunsolley's explicit instructions not to report these
matters to the Board, was outside the scope of her job
duties. Neither party has offered the Court a legal standard
to determine what actions fall outside an employee's job
duties for purposes of an FCA retaliation claim. Nor has the
Fifth Circuit provided guidance on the issue. In
Robertson, the seminal Fifth Circuit case requiring
the plaintiff to show his protected activity was beyond his
job duties to demonstrate his employer had knowledge of his
protected activity, the plaintiff admitted his fraud
investigation was within “the normal course of his
duties.” See 32 F.3d at 952.
Other
circuits with a similar requirement hold that an
employee's failure to follow a supervisor's
instructions or a departure from the ordinary chain of
command creates a fact issue over whether his protected
activity is outside the scope of his job duties. See U.S.
ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890,
908-09 (9th Cir. 2017) (holding that the plaintiff's
“conversations outside of his chain of command
regarding his concerns” could suggest the defendant had
notice of his protected activity); U.S. ex rel. Schweizer
v. Oce N.V., 677 F.3d 1228, 1240 (D.C. Cir. 2012)
(holding that “[t]he company's termination letter
indicating that [the plaintiff] was fired for failing to
follow orders and the chain of command” may suffice to
demonstrate that the plaintiff's actions were not part of
her job duties); U.S. ex rel. Williams v. Martin-Baker
Aircraft Co., Ltd., 389 F.3d 1251, 1261 (D.C. Cir. 2004)
(holding that the plaintiff's alerting of “a party
outside the usual chain of command” may suffice
“to notify the employer that the employee is engaged in
protected activity”).
In this
case, the jury could have reasonably concluded that, by
reporting the Newland matter directly to Board members,
Miniex exceeded the scope of her job duties. Gunsolley and
Miniex's testimony at trial could reasonably support the
conclusion that the normal procedure was for Miniex to bring
her findings to Gunsolley and for Gunsolley, in turn, to
report to the Board.[122] While the evidence establishes
Miniex would typically be present and available at Board
meetings to answer Board members' questions,
[123] HHA does not cite any trial evidence
or testimony suggesting that Miniex made fraud reports
without Gunsolley's approval or in contravention of
Gunsolley's instructions not to make a
report.[124] Prior to the Newland matter, Gunsolley
and Miniex had not had a conflict over a fraud investigation
recommendation and Miniex had not previously asked to present
a fraud investigation to the Board.[125] During the Newland
investigation, Miniex deviated from Gunsolley's directive
not to discuss the matter with the Board and Gunsolley deemed
Miniex's conduct as an insubordinate act.[126] The jury
could reasonably have concluded that by failing to follow
Gunsolley's orders and going outside the typical chain of
command, Miniex's reporting to the Board was outside the
scope of her job duties. See Campie, 862 F.3d at
908-09; Schweizer, 677 F.3d at 1240;
Williams, 389 F.3d at 1261.
Second,
the jury could also reasonably find that Miniex's meeting
with the FBI, where she reported on Newland's (and,
possibly, Radford's) fraud and conveyed information
regarding the fraud investigation and Gunsolley's
responses to her recommendations, was outside the scope of
her job duties. Miniex job duties included periodic meetings
with HUD-OIG and she informed Gunsolley of these
contacts.[127] In connection with the HCVP matters,
however, Miniex spoke with the FBI. Miniex had never
previously met with the FBI, and she did not disclose the
fact or substance of that meeting with
Gunsolley.[128] The jury could reasonably have
concluded that Miniex's reports to FBI agents, which were
meant to remain confidential, were outside the scope of her
job duties at HHA.
HHA
contends that HHA had no notice of Miniex's meetings with
HUD-OIG and the FBI because the meetings remained
confidential. HHA's assertion is inconsistent with the
evidence at trial. Skalka testified that he told Bryce and
Reaves, who in turn told Gunsolley, about the meeting at
which Miniex disclosed the Newland matter to the
FBI.[129] Gunsolley testified that he learned of
Miniex's meeting with HUD-OIG and the FBI through
Reaves' and Bryce's memoranda and conversions with
him on September 2, 2016.[130]
HHA
further contends that because HUD-OIG and the FBI reached out
to Miniex to set up the meetings, Miniex's fraud
reporting to HUD-OIG and the FBI is not protected activity as
a matter of law. This argument is both forfeited and
unpersuasive. HHA did not raise this argument in its original
motion for JMOL. See OneBeacon Ins. Co., 841 F.3d at
676; Flowers, 247 F.3d at 238. Additionally, HHA
cites no authority to support the conclusion that reporting
fraud at the request of an external entity prevents the
action from being protected activity. By reporting fraud,
regardless of the fact that HUD-OIG requested the
information, Miniex still engaged in an “effort[] to
stop” an FCA violation. See 31 U.S.C. §
3730(h)(1).
Because
HHA's arguments in support of its renewed motion for JMOL
are forfeited, meritless, or both, the Court
denies HHA's request for JMOL.
IV.
MOTION FOR NEW TRIAL
Under
Federal Rule of Civil Procedure 59, a district court may
“on motion, grant a new trial on all or some of the
issues . . . for any reason for which a new trial has
heretofore been granted in any action at law in federal
court.” Fed.R.Civ.P. 59(a)(1). HHA argues a new trial
is appropriate for two reasons. First, HHA contends that the
Court erroneously instructed the jury on the essential
elements of an FCA retaliation claim. Second, HHA contends
the jury's verdict that HHA retaliated against Miniex was
against the great weight of the evidence.
These
arguments are forfeited, meritless, or both, and HHA's
request for a new trial is denied.
A.
The Court Properly Instructed the Jury on the Essential
Elements of an FCA Retaliation Claim
1.
Legal Standard
“[T]he
trial court has great latitude in the framing and structure
of jury instructions.” Eastman Chem. Co. v.
Plastipure, Inc., 775 F.3d 230, 240 (5th Cir. 2014).
“There are three requirements to successfully challenge
jury instructions.” Taita Chem. Co., Ltd. v.
Westlake Styrene, LP, 351 F.3d 663, 667 (5th Cir. 2003).
First, the appellant must show that viewing the charge as a
whole, the charge creates ‘substantial and ineradicable
doubt whether the jury has been properly guided in its
deliberations.' Second, even if erroneous, the appellate
court will not reverse if the error ‘could not have
affected the outcome of the case.' Third, the appellant
must show that the proposed instruction offered to the
district court correctly stated the law.
Id. (footnotes omitted) (quoting F.D.I.C. v.
Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994)).
“[T]he trial court has great latitude in the framing
and structure of jury instructions.” Eastman
Chem, 775 F.3d at 240. “[S]pecific jury
instructions are to be judged not in isolation, ‘but
must be considered in the context of the instructions as a
whole and the trial record.'” United States v.
Phea, 755 F.3d 255, 266 (5th Cir. 2014) (quoting
United States v. Simkanin, 420 F.3d 397, 406 (5th
Cir. 2005)). “A litigant also must have preserved the
error in the charge to complain on appeal.” Taita
Chem., 351 F.3d at 667.
2.
HHA's Challenges to the Jury Instructions Are Forfeited
or Lack Merit
HHA
contends the Jury Instructions and Verdict Form contained
several deficiencies. First, HHA contends that the Jury
Instructions erroneously omitted an instruction that Miniex
cannot prevail unless she demonstrates she acted outside the
scope of her job duties. Second, HHA contends that the Court
erroneously omitted the essential element of knowledge by HHA
of Miniex's protected activity from the Verdict Form.
Third, HHA contends that the jury received an overbroad
definition of protected activity in the Jury Instructions.
These three challenges are unpersuasive.
HHA's
first objection is meritless. While the Jury Instructions did
not instruct the jury that Miniex could not prevail unless
she acted outside the scope of her job duties, Question 2 in
the Verdict Form asked whether the protected activities in
which the jury found Miniex engaged were outside the scope of
her job duties.[131] The question was straightforward and
required no instruction. The jury responded “yes”
to this question.[132] In any event, “[v]erdict forms
are considered part of the jury instruction, and [the Court]
evaluate[s] the combined effect on the jury.”
United States v. Fairley, 880 F.3d 198, 208 (5th
Cir. 2018). Because the Jury Instructions and Verdict Form,
when considered together, properly tasked the jury with
deciding whether Miniex's protected activity, if any, was
outside the scope of her job duties, there was no error in
the jury instructions.[133]
HHA's
second objection is also rejected. The Court instructed the
jury that an essential element of Miniex's FCA
retaliation claim was that Gunsolley took an adverse
employment action against Miniex “because of” her
protected activity.[134]The Court instructed the Jury that
in order to find Gunsolley took an adverse employment action
against Miniex “because of” her protected
activity, the jury “must find that when Gunsolley
decided to take the adverse employment action he was aware
that Miniex had engaged or was engaged in ‘protected
activity.'”[135]The jury thus was instructed, as a
practical matter, that to find in favor of Miniex, it must
find that Gunsolley knew of Miniex's protected activity
when he took the relevant adverse employment action.
HHA's second objection to the jury instructions is
unpersuasive.
HHA's
third and final objection is forfeited and also without
merit. Quoting the relevant statutory language, the Court
instructed the jury that a protected action under the FCA
“is a lawful act done in furtherance of efforts to stop
one or more violations of the [FCA.]”[136] The Court
defined “effort to stop” an FCA violation as
“a conscious exertion of power designed to interrupt,
prevent, or hinder a[n FCA] violation.”[137] The Court
added that an action is only protected “if it was based
on a good faith, reasonable belief that fraud possibly was
being, or soon would be, committed against the United States
government.”[138] HHA now contends this set of
instructions was erroneous. Relying on non-Fifth Circuit and
district court authority, HHA argues that the Court should
have instructed the jury that an employee's actions are
protected only if the actions “reasonably could
lead” to an FCA action.[139] See U.S. ex rel. Booker
v. Pfizer, Inc., 847 F.3d 52, 59 (1st Cir. 2017);
O'Hara v. Nika Techs., Inc., 878 F.3d 470, 476
(4th Cir. 2017); Campie, 862 F.3d at 907; U.S.
ex rel. Ruscher v. Omnicare, Inc., No. 4:08-CV-3396,
2014 WL 2618158, at *23 (S.D. Tex. June 12, 2014).
This
objection is forfeited. While HHA now complains Court's
definition of “protected activity” was in error,
HHA did not submit any proposed jury instruction defining the
term “protected activity.” HHA's failure to
submit an alternative instruction precludes relief here.
See Fed. R. Civ. P. 51(d)(1)(B) (“A party may
assign as error . . . a failure to give an instruction, if
that party properly requested it and-unless the court
rejected the request in a definitive ruling on the
record-also properly objected.”); Microsoft Corp.
v. I4I Ltd. P'ship, 564 U.S. 91, 112 (2011)
(refusing to consider argument that the district court erred
by failing to give an instruction when the appellant
“failed to request an instruction along these lines
from” the district court); 9C Charles Alan Wright,
Federal Practice and Procedure § 2252 (3d ed. 2008)
(“As the plethora of decided cases make clear, it is
difficult for the losing party to persuade the appellate
court that the trial court erred in failing to instruct the
jury on a particular matter if no instruction actually was
requested by the complaining party.”).
Moreover,
HHA's belated alternative is not substantively different
from the Court's formulation of the definition
“protected activity.” Multiple cases that apply
the “reasonably could lead” standard, including
two decisions cited by HHA, recognize the standard is
satisfied if, as the Court instructed in this case, the
employee has a good faith, reasonable belief that the
employer is committing fraud on the government. See
Campie, 862 F.3d at 908; Hoyte v. Am. Nat. Red
Cross, 518 F.3d 61, 71 (D.C. Cir. 2008); Schuhardt
v. Wash. Univ., 390 F.3d 563, 567 (8th Cir. 2004);
Fanslow v. Chi. Mfg. Ctr., Inc., 384 F.3d 469, 480
(7th Cir. 2004); Ruscher, 2014 WL 2618158, at *23.
HHA fails to articulate how the Court's omission of the
“reasonably could lead” formulation in favor of
the “good faith, reasonable belief” phrasing
creates “substantial and ineradicable doubt” that
the jury was properly instructed in light of the
interchangeable nature of the two formulations. See Taita
Chem. Co., 351 F.3d at 667.
HHA
fails to demonstrate the Court erroneously instructed the
jury.
B.
The Jury's Finding that HHA Retaliated Against Miniex for
Her Protected Activity Was Not Against the Great Weight of
the Evidence 1. Legal Standard
“[A]
motion for a new trial based on evidentiary grounds should
not be granted unless, at a minimum, the verdict is against
the great weight of the evidence, not merely against the
preponderance of the evidence.” Songcharoen v.
Plastic & Hand Surgery Assocs., P.L.L.C., 561
Fed.Appx. 327, 337 (5th Cir. 2014) (per curiam) (quoting
Carter v. Fenner, 136 F.3d 1000, 1010 (5th Cir.
1998)). Accord Dahlen v. Gulf Crews, Inc., 281 F.3d
487, 497 (5th Cir. 2002). “Against the great weight of
the evidence is a standard not easily met.” Scott v
Monsanto Co., 868 F.2d 786, 789 (5th Cir.
1989). A jury's finding is rarely against the great
weight of the evidence when much of the relevant evidence is
testimonial and in direct conflict-i.e., a
“swearing match.” See Peterson v.
Wilson, 141 F.3d 573, 579 (5th Cir. 1998). Whether to
grant a motion for new trial is within the district
court's sound discretion. See OneBeacon Ins.
Co., 841 F.3d at 676. “The district court abuses
its discretion by denying a new trial only when there is an
‘absolute absence of evidence to support the jury's
verdict.'” Wellogix, Inc. v. Accenture,
L.L.P., 716 F.3d 867, 881 (5th Cir. 2013) (quoting
Seidman v. Am. Airlines, Inc., 923 F.2d 1134, 1140
(5th Cir. 1991)).
2.
The Jury's Finding of Retaliation Was Not Against the
Great Weight of the Evidence
HHA
contends the jury's finding that HHA retaliated against
Miniex for her protected activity is against the great weight
of the evidence. Specifically, HHA contends Miniex failed to
rebut HHA's legitimate non-discriminatory reasons for
terminating her employment-unscheduled absences, tardiness,
slowing down work, and disengagement. HHA contends
Miniex's only evidence of pretext is the close temporal
proximity between Gunsolley's discovery of her reporting
and her discipline and termination. HHA argues that temporal
proximity alone is inadequate as a matter of law to support a
jury finding of retaliation. See Strong v. Univ.
Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir.
2007) (“[Plaintiff] is left with no evidence of
retaliation save temporal proximity. Again, temporal
proximity alone is insufficient to prove but for
causation.”). HHA further contends that its adherence
to internal procedures when disciplining and terminating
Miniex reveal that its stated reasons for Miniex's
termination were not pretextual.
The
Court is unpersuaded. Initially, HHA requests the Court apply
an improper causation formulation. An FCA retaliation
plaintiff must demonstrate her protected activities
“were the but-for cause” of her employer's
adverse actions. See U.S. ex rel. King v. Solvay Pharm.,
Inc., 871 F.3d 318, 333 (5th Cir. 2017). At the summary
judgment phase, courts in the Fifth Circuit analyze FCA
retaliation claims under the familiar burden-shifting
framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). See Diaz v. Kaplan
Higher Educ., L.L.C., 820 F.3d 172, 175 & n.3 (5th
Cir. 2016). Where, as here, there has been a trial on the
merits, courts proceed directly “to the ultimate
question” of whether the plaintiff presented enough
evidence for a reasonable jury to find that retaliation
occurred. See Thomas v. Tex. Dep't of Criminal
Justice, 220 F.3d 389, 393 (5th Cir. 2000). Courts
“need not parse the evidence into discrete segments
corresponding to a prima facie case, an articulation of a
legitimate, nondiscriminatory reason for the employer's
decision, and a showing of pretext.” Bryant v.
Compass Grp. USA Inc., 413 F.3d 471, 476 (5th Cir. 2005)
(quoting Vaughn v. Sabine County, 104 Fed.Appx. 980,
982 (5th Cir. 2004)). Rather, “[w]hen a case has been
fully tried on the merits, the adequacy of a party's
showing at any particular stage of the McDonnell
Douglas ritual is unimportant.” Id.
(quoting Vaughn, 104 Fed.Appx. at 982).
The
Court concludes that it was not against the great weight of
the evidence for the jury to determine that, but for her
protected activity, Miniex would not have been disciplined or
terminated. HHA's assertion that the jury's finding
of causation is supported by only temporal proximity is not
accurate. First, Miniex presented substantial direct and
circumstantial evidence of Gunsolley's retaliatory
motives. Gunsolley stressed to Miniex when she started that
he just wanted her to “keep [him] out of the
news.”[140] Miniex reported to the Board, HUD-OIG,
and the FBI during the summer of 2016, at a time when
Gunsolley's contract with HHA was being reevaluated
and HHA was the subject of an agency-wide audit by
HUD.[141] Gunsolley testified that he was
angered by Miniex's June 22, 2016, email where she
reiterated her desire to directly report the Newland matter
to the Board.[142] Gunsolley admitted that he drafted an
email in response to Miniex's June 22 email that he never
sent (and was never produced during discovery) that would
have ended Miniex's employment.[143] The Jury was entitled
to find Gunsolley's draft expressed his true feeling
about Miniex's conduct and his desire to end Miniex's
employment. Gunsolley admitted that it “really ticked
[him] off” when he learned that Miniex reported
directly to the Board.[144] The jury could have reasonably
believed Gunsolley was upset because implications of fraud by
HHA's general counsel would be harmful to his contract
renewal prospects. This direct and circumstantial evidence of
Gunsolley's motivations and reactions supports the
jury's finding that retaliation was a “but
for” cause for Miniex's discipline and termination.
Cf. Etienne v. Spanish Lake Truck & Casino Plaza,
L.L.C., 547 Fed.Appx. 484, 490 (5th Cir. 2013) (per
curiam) (noting that testimony that the employee's
supervisor was “mad” that the employee filed an
EEOC charge “may suggest that a retaliatory motive was
a factor” in the employee's termination, but
ultimately holding that this fact by itself “does not
create a genuine issue of material fact on the question
whether but-for [the employer's] possible retaliatory
motive, [the employee] would not have been
terminated”); Martin v. J.A.M. Distrib. Co.,
674 F.Supp.2d 822, 845 (E.D. Tex. 2009) (noting that a
supervisor's admission that the employee “really
pissed [him] off by accusing [him] of discriminating against
him” suggested that the employer harbored a retaliatory
animus).
Second,
the jury could have reasonably concluded that Gunsolley made
veiled threats of retaliation towards Miniex on multiple
occasions. During their June 21, 2016, meeting where Miniex
asked Gunsolley to let her bring her recommendations to the
Board, he requested Miniex be a “team player” and
asked her whether she was “happy working at HHA”
and “liked her job.”[145] In the Verbal Written
Warning, Gunsolley told Miniex to resolve her issues
regarding the VASH investigation and “get on the team
and be a team player.” The jury could have reasonably
construed these statements as veiled threats and evidence of
Gunsolley's retaliatory motive. Cf. Costa v. Sears
Home Imp. Prods., Inc., 65 F.Supp.3d 333, 351, 353-54
(W.D.N.Y. 2014) (declining to grant summary judgment based in
part on supervisors' veiled threats, including request
that the plaintiff “be a team player” following
her protected activity); Campanella v. County of
Monroe, 853 F.Supp.2d 364, 376 (W.D.N.Y. 2012) (holding
that a supervisor's statement that the plaintiffs'
protected activities “would create a
‘problem' for plaintiffs” could reasonably be
interpreted as some evidence of retaliatory animus);
Meckenberg v. N.Y.C. Off-Track Betting, 42 F.Supp.2d
359, 382 (S.D.N.Y. 1999) (treating threatening remarks made
in response to protected activity as “circumstantial,
if not direct, evidence of retaliatory
animus”).[146]
Third,
the jury's finding of causality is supported by
Gunsolley's prompt change in his treatment of Miniex
immediately after he learned of one of Miniex's protected
actions. Gunsolley imposed his first formal disciplinary
action, the Written Verbal Warning, on Miniex on September 8,
2016, the day following his receipt of Bryce and Reaves's
memoranda stating that Miniex had discussed the Radford and
Newland matters with the FBI. Before the Written Verbal
Warning, Miniex had four consecutive years of positive
reviews and raises, and HHA cites no negative comments by
superiors. Cf. King, 871 F.3d at 334 (stating the
summary judgment standard “can be met when ‘the
plaintiff had highly positive performance reviews up until
the complaint was leveled against the company, and then
suffered a sharp decline in treatment immediately after the
protected conduct occurred'” (quoting Khalfani
v. Balfour Beatty Cmtys., L.L.C., 595 Fed.Appx. 363, 366
(5th Cir. 2014) (per curiam))).
Fourth,
based on the conflicting trial evidence, the jury could have
reasonably concluded Gunsolley's stated reasons for
Miniex's discipline and termination-Miniex's
unscheduled absences, tardies, productivity concerns, and
disengagement-were pretextual.[147] To establish pretext,
an employee must show her employer's “proffered
explanation is false or ‘unworthy of
credence.'” Laxton v. Gap Inc., 333 F.3d
572, 578 (5th Cir. 2003) (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). This
involves evidence “challenging the substance of
violations, i.e., evidence demonstrating their
falsity” or “other evidence that undermines the
overall credibility of [the employer's] proffered
justification.” Id. at 580.
The
jury could have reasonably concluded that Gunsolley's
productivity and disengagement allegations against Miniex
were substantively false in whole or in part, or were not
credible or were exaggerated. Three HHA employees or former
employees testified Miniex was a good employee who remained
engaged throughout her time at HHA.[148] While other HHA
employees testified that Miniex became unresponsive and
disengaged in mid- or late-2016, the jury was entitled to
resolve this conflict in the evidence in Miniex's favor.
See Peterson, 141 F.3d at 579. When requested during
discovery in this case, HHA admitted it lacked any documents
suggesting Miniex's legal department underperformed in
2016.[149] At trial, Gunsolley admitted he could
not recall any specific contracts Miniex held up or that HHA
executives complained about.[150] Cf. Laxton, 333
F.3d at 580 (concluding a jury could reasonably find pretext
when the employer “produced no contemporaneous written
documentation of any employee complaints”). Notably,
Gunsolley failed to provide specific examples orally or in
his Verbal Written Warning of Miniex's underperformance
or disengagement. This omission undermines Gunsolley's
assertion that the Warning's purpose was corrective.
Cf. Id. (concluding a jury could reasonably conclude
the employer was not genuinely concerned with the
employee's alleged performance-related problems because
the employer only discussed a single complaint with her and
did not discuss problems the employer later contended were of
particular concern to it). Gunsolley admitted the only
employees in the legal department he interviewed before
issuing the Written Verbal Warning were Bryce and Reaves,
even though some of their allegations related to issues other
legal department employees would have been in a better
position to address.[151] Finally, Gunsolley omitted any
reference to productivity and disengagement issues in his
draft response to Miniex's September 13, 2016, grievance
letter or in his November 29, 2016, meeting with Miniex when
he suspended her.[152] See Appelbaum v. Milwaukee Metro.
Sewerage Dist., 340 F.3d 573, 579 (7th Cir. 2003)
(“[O]ne can reasonably infer pretext from an
employer's shifting or inconsistent explanations for the
challenged employment decision.”).
There
are multiple bases for the jury to have reasonably concluded
that Gunsolley's assertions that Miniex was chronically
tardy, routinely had unscheduled absences, and did not
effectively communicate her absences and tardies, were
pretextual. Gunsolley based his September 8, 2016, Verbal
Written Warning on his conclusion that for the preceding 12
months, Miniex had 15 unscheduled absences.[153] To reach
this conclusion, Gunsolley personally reviewed Miniex's
email correspondence with him and Miniex's paid-time-off
requests for the prior 12 months.[154] Gunsolley deemed an
absence unscheduled when Miniex gave less than 12 hours'
notice. In making his calculation that Miniex had 15
unscheduled absences, Gunsolley retrospectively counted
Miniex's absences on less than 12 hours' notice as
unscheduled, even though he had not contemporaneously denied
these requests, nor ever chastised her for untimeliness. In
fact, Gunsolley had never previously told Miniex she could
not take time off or reprimanded her for her attendance, had
not previously monitored other HHA executives' absences
and tardies, and had never disciplined or terminated another
HHA employee for unscheduled absences.[155] Gunsolley
based the 12 hours' notice standard on HHA's absence
policy, [156] despite evidence that this policy did
not apply to exempt employees like Miniex.[157] Moreover,
Gunsolley's review of Miniex's emails to him did not
account for possibility that she called or texted him notice
of an impending absence.[158] There was also a
substantial factual question at trial whether Gunsolley
actually reviewed the Miniex's correspondence
before the September 8 meeting.[159]
When
Gunsolley suspended Miniex on November 29, 2016, and
ultimately terminated her employment on December 9, 2016, the
basis for his conclusion that Miniex was habitually tardy and
absent was not his personal calculation of Miniex's
attendance but solely Bryce's calendar.[160] Gunsolley
admitted he never verified the time entries on Bryce's
calendar by cross-checking it against his email
correspondence with Miniex.[161] Moreover, the jury could
have reasonably questioned the calendar's veracity given
Bryce allegedly monitored Miniex for over two years without
raising the issue with any superior at HHA.[162]
Finally,
Gunsolley, in contravention of HHA's standard practice,
did not consult Human Resources staff when computing
Miniex's missed time. Nor did he involve Human Resources
in Miniex's disciplinary and termination
process.[163]Based on the evidence and testimony at
trial, the jury reasonably could have concluded that
Gunsolley's assertions that Miniex was routinely tardy or
had excessive unscheduled absences were not credible and were
not the actual basis for his decision to terminate her
employment.
The
jury's conclusion that HHA disciplined and terminated
Miniex because of her fraud reporting was not against the
great weight of the evidence. A new trial based on HHA's
evidentiary challenge is unwarranted.
V.
DAMAGES
The
jury found Miniex suffered $370, 571 in lost back pay, $600,
000 in lost front pay, and $317, 750 and $215, 000 in past
and future mental anguish damages, respectively. The Court
entered judgment on that verdict, awarding Miniex $741, 502
in back pay, [164] $46, 786.16 in pre-judgment interest
on back pay, as well as the jury's figures on front pay
and mental anguish.[165]
HHA
contends the jury's wage and noneconomic damages awards
are excessive and unsupported by the evidence introduced at
trial.[166] HHA argues Miniex's back pay and
front pay awards should be reduced to account for
Miniex's failure to mitigate her damages. HHA further
argues that Miniex's noneconomic damages should be
eliminated or remitted because they are unsupported by
sufficient evidence and are excessive relative to analogous
Fifth Circuit cases.
The
Court is unpersuaded that Miniex's back pay award is
excessive. The Court concludes that HHA's evidence at
trial was insufficient to meet its burden to show Miniex
failed to mitigate her damages or that the back pay awarded
by the jury was excessive. The Court concludes, on the other
hand, that a front pay award of $600, 000 is an unwarranted
windfall. Such an award depends on a pair of unjustified
assumptions: first, that but for her December 2016
termination Miniex would have remained employed at HHA for
another eight years; and second, that Miniex will remain
underemployed as a contract attorney making substantially
less than her salary at HHA. The Court instead finds, in the
exercise of its discretion, that a reasonable front pay award
is $216, 861. Such an award compensates Miniex as though she
remained employed at HHA until December 2020, which is four
years after the date of her December 2016 termination.
Accordingly, the Court amends its judgment to reduce
Miniex's front pay award from $600, 000 to $216, 861.
The
Court further concludes that Miniex's noneconomic damage
awards are excessive relative to past awards in factually
similar cases. Accordingly, the Court grants HHA's
request for remittitur and will require Miniex to elect
between lowering her past noneconomic damages to $217, 070.34
and a new trial. Last, the Court concludes there is
insufficient evidence to support an award of future
noneconomic damages and downwardly amends Miniex's future
noneconomic damages award to the nominal sum of $100.
A.
Available Remedies Under the FCA
Under
the FCA, an employee who suffers retaliation for activity
protected by the FCA is entitled to “all relief
necessary to make that employee . . . whole.”
See 31 U.S.C. § 3730(h)(1). This includes
reinstatement, double back pay, interest on the back pay, and
compensation for “special damages.” See
Id. § 3730(h)(2). When reinstatement is not
feasible, as is the case here based on stipulation of the
parties, the plaintiff is entitled to front pay in lieu of
reinstatement. Cf. Julian v. City of Houston, 314
F.3d 721, 728 (5th Cir. 2002) (using front pay in lieu of
reinstatement in the ADEA context). “Special
damages” under the FCA include damages for emotional
distress, attorney fees, and costs. See Neal v.
Honeywell, Inc., 191 F.3d 827, 831-34 (7th Cir. 1999).
B.
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