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Musser v. College

United States Court of Appeals, Fifth Circuit

December 9, 2019

REBECCA MUSSER, Plaintiff-Appellant
v.
PAUL QUINN COLLEGE, Defendant-Appellee

          REVISED December 10, 2019

          Appeal from the United States District Court for the Northern District of Texas

          Before CLEMENT, ELROD, and DUNCAN, Circuit Judges.

          EDITH BROWN CLEMENT, Circuit Judge:

         After she was fired, Rebecca Musser sued her former employer, Paul Quinn College, for retaliation under the False Claims Act. The college maintains that it had legitimate reasons for terminating Musser's employment, including that her position was eliminated. But Musser claims that the college retaliated against her for internally reporting allegedly fraudulent practices by the college's chief financial officer in securing federal grants. The district court granted summary judgment to Paul Quinn College because Musser failed to establish that the stated reason for her termination was pretext for retaliation. We affirm the district court's judgment.

         FACTS AND PROCEEDINGS

         Paul Quinn College ("PQC") is a private, historically black college in Dallas, Texas. A major source of PQC's funding is federal grants authorized by Title III of the Higher Education Act of 1965, as amended, 20 U.S.C. §§ 1051 et seq., which provides financial assistance to historically black colleges and universities. In 2007, during a period of financial and organizational difficulty for the college, PQC hired Michael Sorrell as president and tasked him with turning things around. One of Sorrell's first actions was to hire Antwane Owens and his company, Excellence Through Insight, Inc. ("ETI"), to manage and oversee the college's finances. Owens became the acting chief financial officer of the college, but his position was only temporary while PQC searched for a permanent CFO.

         ETI hired Musser as an independent contractor in March 2010. Although Musser was not a certified public accountant and had no experience with federal grants or nonprofit educational institutions, she was tasked with providing financial and accounting services to PQC as the college's interim controller. Her job duties included overseeing the business office, providing information for grant applications, handling accounts payable, reviewing grant reports, and preparing information for auditors. In performing her duties, Musser worked with employees of eCratchit, an accounting firm utilized by PQC to assist with bookkeeping functions. After Musser's contract with ETI ended, PQC hired her directly as its full-time controller, and she continued to work under the supervision of Owens.

         Almost immediately after Musser's employment began, there were problems with her performance. Between September 2011 through early November 2011, Owens repeatedly counseled Musser about her communicating directly with staff and students without his approval, her failure to supervise an employee in the business office who was submitting inaccurate timesheets, her inability to explain financial issues clearly and concisely, and her failure to accomplish assigned tasks. These issues were no secret to Sorrell and his chief of staff, Lori Price.

         Owens's problems with Musser eventually became mutual. On November 10, 2011, Musser sent an e-mail to Owens questioning whether he performed federal grant drawdowns properly. Musser admits that she did not expressly accuse Owens of fraud or illegal activity in this e-mail. Meanwhile, Owens and Sorrell were attending an out-of-town conference. While at the conference, Owens and Sorrell discussed Musser's poor performance. And on November 11, 2011, Owens submitted a memorandum to Sorrell recommending that Musser be fired at the end of the year. Sorrell agreed.

         That same day, Musser requested a meeting with Sorrell so she could share some "important information" with him. Sorrell did not immediately respond to her request. A few days later, on November 14, Musser e-mailed Owens explaining that there appeared to be a discrepancy in the amount of grant money that PQC was claiming versus the amount that PQC was spending. Owens asked Musser to prepare a spreadsheet showing the discrepancy, but he could not understand the spreadsheet that she created.

         On November 15, Musser followed up on her request for a meeting with Sorrell. She explained that she wanted to alert his attention to something that could be a "very serious risk for the college." Sorrell was out of town, but he told her that she could meet with Price in the meantime. Later that day, Musser and Owens agreed to meet for coffee the following morning. During their meeting on the morning of November 16, Owens informed Musser that her employment would be terminated at the end of the year.

         On November 17, Musser met with Price and expressed her apprehensions about Owens's performance of his duties as CFO. Musser then drafted a memorandum to Sorrell setting out all of her concerns. She delivered the memorandum to Sorrell on November 18. Unlike her previous communications, Musser's memorandum explicitly accused Owens of defrauding the federal government to secure federal funds.

         Upon receiving Musser's report, Sorrell immediately notified PQC's Board of Trustees, and the Board hired a law firm to conduct an independent investigation into her allegations. On November 20, at the Board's directive, Sorrell placed both Owens and Musser on administrative leave with full pay and benefits pending the results of the investigation. Sorrell was not involved in the investigation, but he learned in January 2012 that the investigation had concluded and no further action in response to Musser's report was ...


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