UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
______________________________ ) MOHAMMED AMIN KAKEH, ) ) Plaintiff, ) ) v. ) Civil Action No. 05-1271 (GK) ) UNITED PLANNING ) ORGANIZATION, INC., ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION
Plaintiff Mohammed Amin Kakeh (“Plaintiff”) brings this
whistleblowing case against his former employer, the United
Planning Organization, Inc. (“UPO”). Plaintiff alleges violations
of the District of Columbia Whistleblower Protection Act (“WPA”),
D.C. Code §§ 2-223.01 et seq. (Count I); wrongful discharge under
District of Columbia common law (Count II); retaliation in
violation of the District of Columbia Human Rights Act (“DCHRA”),
D.C. Code § 2-1402.61 (Count III); retaliation in violation of the
federal False Claims Act (“FCA”), 31 U.S.C. § 3730(h) (Count IV);
and retaliation in violation of the District of Columbia False
Claims Act (“DCFCA”), D.C. Code § 2-308.16 (Count V).
On February 28, 2008, Defendant’s Motion for Summary Judgment
was granted as to Count II. On November 25, 2008, Plaintiff’s
Consent Motion to Dismiss Count III was granted. A jury trial was
held between December 3, 2008 and December 23, 2008. On December 23, 2008, the jury returned a verdict for Plaintiff, and the Court
entered judgment in the amount of $891,546 plus costs [Dkt. Entry
Dec. 23, 2008].
This matter is now before the Court on three post-trial
motions: (1) Plaintiff’s Motion to Alter Judgment [Dkt. No. 176],
(2) Defendant’s Motion for Judgment as a Matter of Law [Dkt. No.
178], and (3) Defendant’s Motion to Amend, Alter the Judgment, or
for New Trial, or, in the Alternative, Motion for a Remittitur
[Dkt. No. 180]. Upon consideration of the Motions, Oppositions,
Replies, and the entire record herein, and for the reasons set
forth below, Defendant’s Motion for Judgment as a Matter of Law is
denied, Defendant’s Motion to Amend, Alter the Judgment, or for New
Trial, or, in the Alternative, Motion for a Remittitur is granted
in part and denied in part, and Plaintiff’s Motion to Alter
Judgment is granted in part and denied in part.
I. Background1
UPO is a private non-profit corporation in the District of
Columbia. According to its mission statement, the organization’s
objective is “[t]o provide leadership, support, and advocacy to low
income and other eligible residents of Washington, D.C., to assist
1 For purposes of ruling on a motion for judgment as a matter of law, the evidence is examined in the light most favorable to the nonmoving party. Mazloum v. Dist. of Columbia Metro. Police Dep’t, 576 F. Supp. 2d 25, 32 (D.D.C. 2008). Accordingly, unless otherwise noted, the facts that follow are taken from Plaintiff’s Opposition and from the evidence presented at the fourteen-day trial held in December 2008.
2 them in achieving self-sufficiency and self-determination, and to
enhance generally the quality of life in the local community.”
Plaintiff was hired as UPO’s Controller on June 28, 1998.
UPO contracted with the District of Columbia to manage two
anti-poverty programs. It operated the Head Start program, which
provides educational services to low-income children and their
families. In the District of Columbia, the federal government
provided 80 percent of the program’s operating funds, and the
District provided the remaining 20 percent. The federal government
disbursed its 80 percent share of the program costs to the D.C.
Department of Human Services (“DHS”), which added the remaining 20
percent and then disbursed the full funding to UPO.
UPO also administered the Community Service Block Grant
(“CSBG”) program. The CSBG program was funded entirely by the
federal government. The federal Department of Health and Human
Services (“DHHS”) disbursed the program funds to DHS, and DHS in
turn disbursed the funds to UPO. UPO then allocated funds to
service providers and oversaw their use of the funds.
Between October 1, 2002 and September 30, 2003, DHS disbursed
funds from the CSBG grant to UPO on a reimbursement basis: DHS
disbursed the funds after UPO provided DHS with receipts showing
that expenditures were incurred for purposes that were legitimate
under the CSBG grant. If UPO did not spend all of the grant-
allocated money within the fiscal year, it was required to notify
3 DHS that it had a surplus. Once it had notified DHS, it could
either return these surplus funds to the granting agency or use
them for other allowable expenditures.
The CSBG grant for fiscal year 2003 budgeted specific amounts
that could be spent on other programs. During trial, Dana Jones,
UPO’s present Executive Director, who was hired to begin work on
April 1, 2004, testified that, unless there was express written
permission from DHS, surplus funds could be applied to other
programs only up to the expenditure limit that was budgeted in the
grant. See Def.’s Mot. at 4 (“If included in the original budget,
CSBG funds can be used to pay for costs related to other grant
programs.”).
Tunde Eboda, CSBG Program Manager at DHS, also testified that
Defendant needed written permission to “apply surplus CSBG funds to
non-enumerated cost overruns” in other programs. See id. at 4
(“Only allowable costs can be charged to the grant.”). Gladys
Mack, UPO’s Deputy Executive Director, and Sheila Shears, UPO’s
Chief Financial Officer, testified that the Iowa Group, a firm
hired by Eboda to investigate UPO’s financial practices, informed
them in March 2004 about this permission requirement. Pl.’s Opp’n
at 11.
4 Eboda testified that UPO did not have this permission until
September 29, 2004. Mack testified that Defendant had oral
permission, but not written permission.2
Plaintiff testified that in October 2003, he discovered
$748,000 in expenditures that had been improperly billed to the
CSBG grant for fiscal year 2003. He believed that this billing
practice constituted fraud. On October 20, 2003, Plaintiff wrote
a memorandum to Mack, Shears, and Ben Jennings, who was then UPO
Executive Director, informing them of this discovery. On the same
day, he met with them to detail his concerns.
Plaintiff testified that Jennings ordered him to change the
designation of expenditures from “expenditures without a funding
source” to “allowable CSBG expenditures.” Id. at 5. Plaintiff
testified that he believed this to be an illegal order because the
change would constitute “fraudulent billing.” Id.
Plaintiff then discovered several other expenditures that were
mistakenly classified: Jennings had charged four luxury cars to
grants using a credit card with a 21 percent interest rate, a
$120,000 loan had been made to a member of UPO’s Board of Trustees
(“Board”) using grant funds, a van was assigned to Mack, two sport
utility vehicles were purchased for a Board member and charged to
grants, officers and Board members had fifty-six cell phones,
2 According to Plaintiff, Eboda and Plaintiff both contradicted Mack’s testimony.
5 employees and Board members had been paid $200,000 in advances for
traveling expenses, and a $65,000 trip to Hawaii for employees,
Board members, and their families had been billed to a grant. Id.
at 5, 6.
After discovering these expenditures, Plaintiff changed their
designation from “allowable” to “unallowable.” Plaintiff testified
that Shears instructed him to charge the CSBG grant for these
expenditures and that he considered this instruction to be an
illegal order. Id. at 6.
After receiving this instruction, Plaintiff responded by
contacting Eboda and informing him that Defendant had charged
unallowable expenditures to the CSBG grant. Eboda testified that
as a result of Plaintiff’s disclosures, he investigated Defendant’s
finances and discovered several unallowable expenditures that had
been improperly charged to the CSBG grant.
Plaintiff testified that on March 1, 2004, Eboda told a
meeting that included Shears that Plaintiff had assisted him with
the investigation. Later that month, at another meeting attended
by Shears, Plaintiff provided the Iowa Group with financial
statements showing that UPO had attempted to bill unallowable
expenditures to the grant. Plaintiff’s version of the financial
statements contradicted the version submitted by Shears:
Plaintiff’s version included a much larger deficit. Eboda
6 testified that it was clear that the statements with the larger
deficit were Plaintiff’s. Pl.’s Opp’n at 7.
On an unspecified date, Shears held a meeting that included
Plaintiff, Mack, and Jennings. At this meeting, Jennings asked
Plaintiff why he had provided the financial statements to the Iowa
Group. Id. at 8.
On March 11, 2004, Eboda recommended to UPO’s Board that
Jennings, Shears, and Mack be removed. Eboda testified that he
reached this decision as a result of the information that Plaintiff
had provided to him. The Board decided to remove only Jennings.
Id.
On the same date, Shears wrote a letter of resignation to
Jennings, stating her concern that Plaintiff “has been allowed to
continue in his position, given his repeated acts of
insubordination.” Def.’s Mot., Ex. 4 (labeled “Pl. Ex. 30”). The
letter referred to Plaintiff’s release of financial statements that
were “significantly altered from any previously reviewed by
management.” Id. Shears sent a copy of this letter to Mack.
On March 12, 2004, Mack became Acting Executive Director. She
told Plaintiff to change financial statements so that “unallowable”
expenditures could be charged to the grant. On March 21, 2004,
Shears wrote an email to Plaintiff and Mack stating that
expenditures charged to the grant are “lower than budgeted, even
though there appears to be more than enough related expenses.”
7 Id., Ex. 5 (labeled “Pl. Ex. 80”). Her email specifically asked
Plaintiff to provide details about “what deferred revenues are on
the balance sheet that should be reversed.” Id.
On March 25, 2004, Mack wrote an email to Plaintiff, reminding
him of the urgency of the need to change the classification of
expenditures. Referring to a line of credit that had been extended
to Defendant by M & T bank, she wrote, “Amin, we are out of time.
I hope you are sensitive to this. Our continued supportive
relationship with the bank depends on these tasks being completed.”
Id., Ex. 6 (labeled “Pl. Ex. 35”). She stated that she was
“requesting that [Plaintiff] book all adjustments that we are
currently aware of, including restoring the CSBG revenues . . . .”
Plaintiff testified that he believed Mack’s request was an
illegal order and that he refused to comply with it. Mack
testified that she believed his refusal to be an act of
insubordination and that she informed Jones of this belief.
On April 1, 2004, Defendant appointed Jones to be Executive
Director. Jones testified that when he arrived at UPO, “the house
was on fire,” meaning that UPO was in great disarray. Id. at 9.
Defendant states that Jones “considered outsourcing the financial
management functions as an option before he even began his work at
UPO.” Id.
8 Eboda testified that he told Jones that Plaintiff had assisted
in the investigation that led to Jennings’ resignation. On April
5, 2004, Plaintiff met with Eboda, Jones, and Alexis Roberson, a
member of the Board’s Ad Hoc Management Committee. Pl.’s Opp’n at
11-12. At this meeting, Eboda reiterated that Plaintiff had
assisted in the investigation and had provided information that
helped to instigate the DHS and DHHS audit of UPO’s financial
practices. Id. at 12.
On April 6, 2004, Plaintiff met with Jones, Mack, Shears,
Monica Beckham, UPO’s General Counsel, and employees of F.S.
Taylor, a private certified public accounting firm. At this
meeting, the F.S. Taylor employees proposed certain modifications
to Defendant’s financial statements. Mack and Shears agreed to
these modifications, but Plaintiff did not. Plaintiff testified
that in April 2004, Jones ordered him to charge what he considered
to be unallowable expenditures to the grant.
On April 11, 2004, Plaintiff wrote a memorandum to Jones
stating that he had “emphasized” at the April 6, 2004 meeting that
“the 1.9 million from the CSBG unspent revenue could not be used to
cover the deficit of UPO.” Def.’s Mot., Ex. 10 (labeled “Pl. Ex.
41”). Plaintiff believed that UPO needed written approval prior to
allocating the surplus funds to the deficit, and he did not believe
that UPO had received such permission. Plaintiff wrote that
The second “valid” adjustment of applying money to the UPO deficit is invalid because this needs an advance
9 approval from the CSBG state office to apply the revenue to UPO’s deficit and that hasn’t happened yet. As you can see the total “valid” adjustment of $3 million has to be reversed. UPO is in a deficit situation.
In the April 11, 2004 memorandum, Plaintiff also stated that
the director of Head Start had asked him to remove three items that
UPO had charged to the grant in fiscal year 2003, but that F.S.
Taylor had recommended that UPO not remove those charges “until the
auditors ask for such changes.” Id. Jones responded to F.S.
Taylor’s recommendation by stating, “I’m not going to tell them
either.” Id. Plaintiff testified that he considered this response
to be unethical because it “put[] UPO’s integrity at serious risk.”
Jones decided to outsource the top management of the Finance
Office. On April 15, 2004, in preparation for the reduction-in-
force (“RIF”) necessitated by the outsourcing, UPO’s Human
Resources Department sent UPO’s General Counsel a list of
“competitive areas.”3 Id. at 10. UPO used these “competitive
areas” to determine which employees to retain after the RIF. Id.
According to Defendant, “[e]mployees with the longest length of
service with UPO were placed at the top of their particular
grouping.” Id. at 10 n.4.
3 According to Defendant, employees were grouped into “‘competitive areas’ according to their duties, functions, responsibilities and pay schedules.” Def.’s Mot. at 10.
10 Plaintiff was included in the same “competitive area” as David
Quashie, UPO’s Deputy Controller, who had worked for UPO since
September 23, 1974. Id. at 10. According to Defendant, Quashie
was placed at the top of the competitive area because he had worked
at UPO nearly twenty-four years longer than Plaintiff. Id. at 10-
11.
On May 6, 2004, Jones recommended to the Board that UPO
outsource several positions in the Finance Office, including the
Controller position. Id. at 11. Two members of the Board, Judges
Annice Wagner and Henry Greene, testified that the Board never
discussed the specific employees who would be affected by the RIF.
On May 12, 2004, Roberson wrote a letter to Eboda “requesting
that he facilitate a coordinated investigation by all governmental
agencies from which UPO received funding.” Id. at 12. On June 1,
2004, investigators from the Office of Inspector General (“OIG”),
as well as employees from DHS, DHHS, the FBI, and the U.S.
Attorneys’ Office, visited Defendant’s office to meet with
Plaintiff. Id. at 13.
Beckham testified that she observed the investigators enter
Plaintiff’s office, that she knew they were OIG investigators, that
she assumed they were reviewing financial documents in Plaintiff’s
office, and that she notified Jones that Plaintiff was meeting with
the investigators. According to Defendant, it was Beckham’s
11 “understanding that the investigators came to UPO because of The
Washington Post articles about Mr. Jennings.” Id. at 13.
The next day, on June 2, 2004, Jones delivered a RIF notice to
Plaintiff. Id. at 13. The notice stated that Plaintiff was
“relieved of [his] duties as of June 2, 2004,” but that his
employment would officially terminate on June 30, 2004. Id.
After a fourteen-day trial in December 2008, the jury returned
a verdict for Plaintiff.
II. Analysis
A. Defendant’s Motion for Judgment as a Matter of Law Is Denied4
After the conclusion of a jury trial, a court will not grant
a motion for judgment as a matter of law and set aside the verdict
“unless the evidence and all reasonable inferences that can be
drawn therefrom are so one-sided that reasonable men and women
could not have reached a verdict in plaintiff’s favor.” Novak v.
Capital Mgmt. & Dev. Corp., 570 F.3d 305, 311 (D.C. Cir. 2009)
(internal citations and quotation marks omitted); Gasser v. Dist.
of Columbia, 442 F.3d 758, 762 (D.C. Cir. 2006); see Stewart v. St.
Elizabeths Hosp., 593 F. Supp. 2d 111, 113 (D.D.C. 2009); see
4 Plaintiff argues that Defendant waived its right to file a motion for judgment as a matter of law. Pl.’s Opp’n at 14-16. However, as Defendant conclusively demonstrates in its Supplemental Memorandum, the Court explicitly informed Defendant during trial that it had not “jeopardize[d] [its] procedural positions in any way at all.” Def.’s Supp. Mem. at 2-3 & Ex. 1. Thus Defendant did not waive its right to seek judgment as a matter of law.
12 Mazloum v. Dist. of Columbia Metro. Police Dep’t, 576 F. Supp. 2d
25, 32 (D.D.C. 2008) (internal citations and quotation marks
omitted); see also Miller v. Holzmann, 563 F. Supp. 2d 54, 75
(D.D.C. 2008) (citing Scott v. Dist. of Columbia, 101 F.3d 748, 752
(D.C. Cir. 1999)); see Fed. R. Civ. P. 50 (a court may grant a
motion for judgment as a matter of law if “the court finds that a
reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue”).
Because “‘[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge,’” a court may grant a
motion for judgment as a matter of law only if “‘under the
governing law, there can be but one [] conclusion as to the
verdict’ -- that it defies reason.” Miller, 563 F. Supp. 2d at 75-
76 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986)).
In considering a motion for judgment as a matter of law, a
court “must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or
weigh the evidence.” Mazloum, 576 F. Supp. 2d at 32 (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000)); see also Gasser, 442 F.3d at 762. Thus it is necessary to
“disregard all evidence favorable to [UPO] that the jury is not
13 required to believe and give credence to the evidence favoring
[Plaintiff].” See Gasser, 442 F.3d at 762.
In this case, Plaintiff alleged that Defendant violated the
D.C. Whistleblower Protection Act (“WPA”), the federal False Claims
Act (“FCA”), and the D.C. False Claims Act (“DCFCA”). To prove
that Defendant violated the WPA, Plaintiff had to establish by a
preponderance of the evidence that (1) he made a protected
disclosure and/or refused to comply with an illegal order; (2)
Defendant took an adverse employment action against him; and (3)
Plaintiff’s disclosure and/or refusal to comply with an illegal
order was a “contributing factor” to Defendant’s decision to take
the adverse employment action. As the D.C. Court of Appeals has
stated, “the federal whistleblower statute, 5 U.S.C. 2302(b)(8),
‘is instructive in interpreting similar state statutes,’ including
the DC-WPA.” Wilburn v. Dist. of Columbia, 957 A.2d 921, 925 (D.C.
2008) (quoting Crawford v. Dist. of Columbia, 891 A.2d 216, 221
(D.C. 2006)).
To prove that Defendant violated the FCA and the DCFCA,
Plaintiff had to establish by a preponderance of the evidence that
(1) he engaged in a protected activity, (2) Defendant had knowledge
that Plaintiff was engaged in such protected activity, (3)
Defendant terminated his employment, and (4) there was a causal
connection between the protected activity and Defendant’s
14 termination of his employment.5 Once Plaintiff established these
elements, a presumption of retaliation arose and the burden shifted
to Defendant to provide a legitimate, non-retaliatory reason for
Plaintiff’s termination. If Defendant presented a legitimate,
non-retaliatory reason, the burden shifted back to Plaintiff to
prove by a preponderance of the evidence that Defendant’s stated
reason was a pretext for retaliation. See, e.g., U.S. ex rel.
Yesudian v. Howard University, 153 F.3d 731, 736 (D.C. Cir. 1998).
Defendant argues that if the Court does not set aside the
jury’s verdict, there will be an “improper broadening of the scope
of the whistleblower laws to encompass activities and conduct
beyond the clear language of the statutes.” Def.’s Mot. at 2.
According to Defendant, “no reasonable juror could have found that
UPO separated Plaintiff . . . from employment on June 30, 2004
because he engaged in protected activity under the whistleblower
laws.” Id.
Defendant makes several assertions in support of this
argument. First, it argues that Plaintiff did not make a protected
disclosure, as the term is defined by the WPA, because any
disclosures he made were pursuant to his “regular job duties” and
“Plaintiff did no more than make suggestions and voice his
5 The elements of the FCA and the DCFCA are substantively similar, but not identical. For purposes of the Motions now before the Court, the distinctions between the two are not relevant. In addition, as stated supra, the federal statute provides a helpful guide for interpreting the D.C. statute.
15 dissatisfaction with Mr. Jones’s decisions.” Id. at 17-18.
Both the facts and the law prove Defendant’s argument wrong.
According to the WPA, a disclosure is “protected” by the statute if
it is
any disclosure of information . . . by an employee to a supervisor or to a public body that the employee reasonably believes evidences . . . [g]ross misuse or waste or public resources or funds . . . [or a] violation of a federal, state, or local law, rule, or regulation, or of a term of a contract between the District government and a District government contractor which is not of a merely technical or minimal nature.
D.C. Code 2-223.01(7) (emphasis added). According to the
clear language of the statute, a disclosure is “protected” when
made to a supervisor. See id. As Plaintiff correctly states, the
“Findings and declaration of purpose” section of the WPA states
that “the Council declares as its policy to . . . [p]rotect
employees from reprisal or retaliation for the performance of their
duties.” D.C. Code 1-615.51. Moreover, Plaintiff’s testimony
constituted far more than “mere suggestions” and clearly stated
that he believed the actions he was challenging were unlawful.
As Jones and Eboda both testified, it was reasonable for
Plaintiff to believe that written permission was required before
UPO could apply surplus CSBG funds to “non-enumerated cost
overruns” in other programs. Pl.’s Opp’n at 4. Eboda testified
that it was reasonable to believe that UPO did not have this
permission. Id.
16 Second, Defendant argues that “Plaintiff did not have a
reasonable belief that he was objecting to a violation of a
federal, state, or local law, rule, or regulation” because “[t]here
is no evidence that Plaintiff identified a specific act on the part
of UPO which was illegal during his employment.” Def.’s Mot. at
22. Defendant argues that the “record demonstrates that no one at
UPO issued an illegal order to Plaintiff.” Id. at 23.
The actual legality of UPO’s billing practices is not the
issue. Instead, as the statute makes clear, the focus of the
inquiry is whether Plaintiff held a reasonable belief that the
practices were illegal, i.e. a “violation of a federal, state, or
local law, rule, or regulation, or of a term of a contract between
the District government and a District government contractor which
is not of a merely technical or minimal nature.” D.C. Code 2-
223.01(7).6
6 Plaintiff and Defendant argue extensively about the regulations that governed Defendant’s participation in the CSBG program. Plaintiff argues that 45 C.F.R. Part 92 governed because Defendant received a “federal grant given directly to the states.” Pl.’s Opp’n at 29 (emphasis in original). Defendant argues that it was governed by 45 C.F.R. Part 74, which applies to federal grants to nonprofit organizations. Def.’s Mot. at 24. The Court need not resolve the merits of this legal issue because the applicable statutes require only a reasonable belief in illegality, not actual illegality. See, e.g., D.C. Code 2-223.01(7) (“Protected disclosure” means any disclosure of information, not specifically prohibited by statute, by an employee to a supervisor or to a public body that the employee reasonably believes . . . .”) (emphasis added).
17 During the trial, Plaintiff testified that he stated numerous
times that he believed Defendant was directing him to violate the
billing and accountability practices required by the CSBG program.
Jones and Eboda testified that written permission was required
prior to billing cost overruns to the CSBG grant. Plaintiff
testified he did not believe UPO had this permission. Mack
testified that UPO had oral permission but did not have written
permission. The testimony from Jones, Eboda, and Mack corroborates
Plaintiff’s belief and clearly shows its reasonableness.
Plaintiff’s April 11, 2004 memorandum also corroborates his
testimony. Accordingly, a reasonable juror could conclude that
written permission was required, that UPO did not have it, and that
in spite of lacking this permission, Plaintiff was ordered to
charge unallowable expenditures to the grant.
Third, Defendant argues that disclosure to a supervisor is not
protected activity and that Plaintiff’s disclosures would have been
protected only if they had been revealed to the Board. Def.’s Mot.
at 18 (“To become a [sic] protected conduct, Plaintiff was required
to report any perceived wrongdoers to those persons who were in a
position to remedy the alleged wrongdoing.”).
Even if the Board bore the ultimate responsibility for making
the decision to outsource, Jones had the authority to develop an
implementation plan and, once it was approved by the Board, to
execute it. UPO’s management developed the rules for determining
18 who would be “riffed” and thereby substantially influenced the
final determinations about which employees would be terminated.
While the Board focused its attention on the general procedures
which would govern the RIF, rather than which specific employees
would be terminated, Jones and upper management were well aware of
how the RIF procedures would affect certain employees. Thus, a
reasonable juror could conclude that Jones was in a position to
remedy Plaintiff’s termination. Huffman v. Office of Pers. Mgmt.,
263 F.3d 1341, 1350 (Fed. Cir. 2001) (“The purpose of the statute
is to encourage disclosures that are likely to remedy the wrong.”).
Fourth, Defendant makes a similar argument with regard to the
FCA and DCFCA. It argues that “Plaintiff’s conduct was not in
furtherance of an FCA and/or DCFCA claim because he was simply
doing his job.” Def.’s Mot. at 29.
As our Court of Appeals stated in Yesudian,, an employee
engages in protected activity when he discloses fraud and
corruption, as opposed to making a “complaint about mere regulatory
compliance.” 153 F.3d at 744-45. In this case, Plaintiff
repeatedly stated that he believed that Defendant’s billing
practices were fraudulent and would result in billing the CSBG
grant for unallowable expenditures. He consistently framed these
differences as matters of fraud and ethics, rather than routine
disagreements about regulatory compliance. Therefore there was
sufficient evidence for a reasonable juror to conclude that
19 Plaintiff was engaging in protected activity.
Fifth, Defendant argues that “[t]here simply is no evidence
that Plaintiff used language that would lead Mr. Jones to believe
that Plaintiff made protected disclosures.” Def.’s Mot. at 19.
Defendant argues that to be covered by the WPA, Plaintiff’s
disclosures must use “the language or terminology of fraud, waste,
or misuse.” Id.
As Plaintiff correctly states, however, Plaintiff was not
obligated to use “magic words” to trigger the protections of the
WPA. As the WPA indicates, a disclosure is protected if the
employee “reasonably believes” that he is revealing a gross misuse
of public funds or a violation of a law, rule, regulation, or
contract term. D.C. Code 2-223.01(7).
Sixth, Defendant argues that Plaintiff did not disclose to
Jones any information that “was not already known as [sic] result
of the prior year-end audit reports, Mr. Eboda’s preliminary
report, the Head Start monitoring review and/or The Washington Post
articles.” Def.’s Mot. at 21. Even if this information was
already public and even if Jones already had knowledge of it,
Plaintiff was the one responsible for disclosing it in the first
instance. Defendant introduced no evidence to contradict
Plaintiff’s testimony that his disclosures were the driving force
behind the investigation by the federal and D.C. governments into
the financial practices at UPO.
20 Seventh, Defendant argues that evidence that UPO knew of
Plaintiff’s protected activity was “conspicuously absent in this
case.” Id. at 2. For example, Defendant states that it had no
knowledge of the protected disclosures because Plaintiff “failed to
explain” why he refused to follow “directives.” Id. at 3.
Defendant argues that it concluded he was simply an “insubordinate
and disgruntled employee” and that “Plaintiff at no point indicated
that these concerns arose because of potential violations of a law,
rule or regulation, or gross management, misuse, fraud, waste or
abuse.” Id. at 3, 10.
However, Beckham testified that she observed OIG investigators
enter Plaintiff’s office, that she knew they were OIG
investigators, that she assumed they were reviewing financial
documents in Plaintiff’s office, and that she notified Jones that
Plaintiff was meeting with the investigators. Moreover, Shears and
Mack attended a meeting at which Jennings acknowledged that
Plaintiff had provided financial statements to the Iowa Group.
In addition, Eboda testified that on several occasions, he
provided UPO with knowledge that Plaintiff was engaging in
protected activity. On March 1, 2004, Eboda told a meeting that
included Shears that Plaintiff assisted him with the investigation
into UPO’s finances. On April 5, 2004, Plaintiff met with Jones,
Roberson, and Eboda. At this meeting, Eboda reiterated that
Plaintiff had provided information that was critical to the
21 investigation. Pl.’s Opp’n at 10.
At approximately the same time as Eboda was informing UPO that
Plaintiff had provided information that served as the basis for his
investigation, Plaintiff was telling Jones and Mack that he would
not employ the billing practices they requested. In his April 11,
2004 memorandum to Jones, for example, Plaintiff wrote that “the
1.9 million from the CSBG unspent revenue could not be used to
cover the deficit of UPO.” Def.’s Mot., Ex. 10 (labeled “Pl. Ex.
41”). It is reasonable to conclude that these two separate strands
of information -- that Plaintiff provided Eboda with information
essential to his investigation into UPO’s billing practices and
that Plaintiff was refusing requests from Jones and Mack to
improperly bill certain expenditures to the grant -- provided UPO
with knowledge that Plaintiff was engaging in protected activity.
For all these reasons, the evidence introduced by Plaintiff would
allow a reasonable juror to infer that Defendant had knowledge of
Plaintiff’s protected activity.
Eighth, Defendant argues that Plaintiff has not established
that his protected activity was a contributing factor in UPO’s
decision to terminate Plaintiff. Id. at 25-26. In making this
claim, Defendant rests heavily on its earlier argument that it had
no knowledge of Plaintiff’s protected activity. Id. at 26-27.
The evidence does not support Defendant. When Defendant first
began planing to outsource the Finance Department, it contemplated
22 outsourcing the entire department. Over time, this plan changed,
and when it was finally implemented, Plaintiff was the only
employee in the Finance Office who was, in fact, terminated. A
reasonable juror could certainly conclude that Plaintiff became the
focus of the RIF in the Finance Office as a result of his protected
activity.
Most importantly, a reasonable juror could easily conclude
that the short duration -- one day -- between the OIG’s visit to
Defendant’s office and Plaintiff’s termination demonstrates that
Defendant knew of Plaintiff’s protected activity and that the
termination was motivated by a desire to retaliate against him.
Defendant also argues that because Jones testified that he
began thinking about outsourcing the Finance Office before he was
hired as UPO’s Executive Director, the final decision to terminate
Plaintiff was not made as a result of his protected activity.
However, Jones’ testimony was riddled with inconsistencies and
directly contradicted by the testimony of other witnesses. He
testified that he decided to retain Quashie and terminate Plaintiff
based solely on the recommendation of Ron Walker (“Walker”),
Managing Partner of Walker & Company, rather than the RIF policy.7
In contrast to Jones’ testimony, Beckham testified that Jones
told her that Plaintiff was terminated on the basis of the RIF
7 On May 19, 2004, in response to a request from UPO, Walker & Company submitted a proposed restructuring of the Finance Office. Def.’s Mot. at 12.
23 policy. Roy Lane (“Lane”), Walker’s former partner, also
contradicted Jones’ testimony. Lane testified that he and Walker
met with Jones and Mack and that during that meeting, Jones and
Mack stated that they had already terminated Plaintiff and that
they wanted to retain Quashie. He also testified that he never
recommended that Quashie be retained.
Jones’ testimony during trial was impeached with statements he
made during his deposition. In his deposition, he stated that
Walker made his recommendation to retain Quashie after June 2,
2004, the date when Plaintiff received his RIF letter. However,
the RIF letter stated that Defendant would terminate Plaintiff and
retain and reassign Quashie. During trial, Jones testified that
Walker made his recommendation to retain Quashie before the RIF
letters were delivered.
Although Defendant disputes Plaintiff’s characterization of
the evidence, it was up to the jury to make factual determinations,
to assess the credibility of the witnesses, to evaluate the
plausibility of the arguments advanced by the attorneys on each
side, and to weigh the evidence. To the extent that Defendant
presented evidence contradicting Plaintiff’s, a reasonable juror
could conclude that Plaintiff’s evidence was more credible than
Defendant’s.
For these reasons, viewed in the light most favorable to
Plaintiff, the nonmoving party, there was ample evidence from which
24 a reasonable juror could conclude that Defendant violated the WPA,
the federal FCA, and the DCFCA when it terminated Plaintiff.
Defendant has not introduced evidence sufficient to satisfy its
considerable burden to show that the jury’s verdict should be set
aside.
B. Defendant’s Motion to Amend, for a New Trial, or, for a Remittitur Is Granted in Part and Denied in Part
1. The Court Entered Three Separate Awards of Back Pay and Compensatory Damages
At the conclusion of the trial, the jury returned a verdict
for Plaintiff. On the verdict form, the jury wrote “$122,132.00”
for the WPA back pay award and “$175,050.00” for the WPA
compensatory damages award. For the federal FCA back pay and
compensatory damages awards and for the DCFCA back pay and
compensatory damages awards, it wrote “same as.”8
The in-court recitation of the verdict was similar. When the
jury returned from its deliberations, the foreperson read its
verdict in open court. When the Court asked about the compensatory
damages and back pay awards under the FCA and DCFCA, the foreperson
replied that the jury had agreed to the “same amount.” Defs.’
Reply at 31-32.
8 Eight jurors signed the majority verdict form. One juror signed a minority verdict form, awarding $40,000 in back pay for the WPA claim and $108,000 in compensatory damages. For the back pay and compensatory damages awards under the federal FCA, he wrote “same.” For the DCFCA, he wrote “$108,000” for the back pay award. On the compensatory damages line, he wrote “$40,000.” Below that, but still in the space for compensatory damages, he wrote “same.”
25 When the Court entered the judgment, it entered separate
awards for the WPA, federal FCA and DCFCA claims: i.e. three
separate back pay awards of $122,132 and three separate
compensatory damages awards of $175,050. Thus, a total award of
$891,546 was entered [Dkt. No. 169].
2. The Jury Awarded Plaintiff a Total of $122,132 in Back Pay and $175,050 in Compensatory Damages
Defendant argues that the Court should amend the judgment
pursuant to Federal Rule of Civil Procedure 59(e) or order a new
trial because “manifest injustice will occur because the judgment
is inconsistent with the jury’s true verdict.” Def.’s Mot. at 36.
According to Defendant, the jury’s responses on the verdict form
are so ambiguous that “the true verdict is in doubt.” In the
alternative, Defendant moves the Court to order a new trial to
provide additional instructions on after-acquired evidence or to
grant a remittitur to correct the “excessive” damages awarded by
the jury. See id. at 41, 42 (arguing in the alternative that a new
trial or remittitur should be ordered if the Court determines that
the judgment should not be amended).
In response, Plaintiff argues that “a trial judge cannot
reduce the amount of a jury verdict because of an ambiguity
stemming from the structure of the special verdict form.” Pl.’s
Opp’n at 40. Plaintiff further argues that the Court should not
“second guess the jury’s decision to award $525,150 in compensatory
damages.” Id. at 49.
26 If a jury’s verdict is so “opaque” so as to make any attempt
to determine the jury’s intent “speculative,” then a court may
order a new trial. See Carter v. Dist. of Columbia, 795 F.2d 116,
135 (D.C. Cir. 1986).
However, when a jury’s verdict is clear, a court may not set
it aside. See Daskalea v. Dist. of Columbia, 227 F.3d 433, 444
(D.C. Cir. 2000) (“A jury verdict must stand unless it is ‘beyond
all reason’ or ‘so great as to shock the conscience.”). In
particular, if there is disagreement about the meaning of a jury’s
verdict, the court must first “attempt to reconcile the jury’s
findings, by exegesis if necessary . . . before we are free to
disregard the jury’s special verdict and remand the case for a new
trial.” Gallick v. Baltimore & Ohio. R.R. Co., 372 U.S. 108, 119
(1963); Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369
U.S. 355, 364 (1962) (“Where there is a view of the case that makes
the jury’s answers to special interrogatories consistent, they must
be resolved that way.”); Snyder v. Trepagnier, 142 F.3d 791, 800
(5th Cir. 1998) (“Only if there is no view of the case that will
make the jury’s answers consistent may we set aside its decision.”)
(citations omitted); Palmer v. City of Monticello, 31 F.3d 1499,
1505 (10th Cir. 1994) (“If there is any view of the case which
makes the answers consistent, the case must be resolved in that
way.”). “[I]t is the duty of courts to attempt to harmonize the
answers, if it is possible under a fair reading of them.” Gallick,
27 372 U.S. at 119.
It is clear that primary responsibility for the present
confusion lies with Defendant. Defendant never objected to the
verdict form,9 nor did it request an instruction on the
impermissibility of duplicative awards. Defendant also failed to
request clarification of the jury’s verdict before it was
discharged. Had it been requested, a poll of the jury or an
instruction to resume deliberations could have easily resolved any
questions. See, e.g., Headspeth v. United States, 910 A.2d 311,
320 (D.C. 2006) (“The jury poll is the primary device for
uncovering the doubt or confusion of individual jurors.”) (internal
citations and quotation marks omitted).
Despite Defendant’s failures to bring these issues to the
Court’s attention prior to the jury’s discharge, it is clear that
the jury intended to award Plaintiff only one award for back pay
and one award for compensatory damages. Three facts support this
conclusion.
First, the award of $891,546 that was originally entered by
9 Defendant argues that it did not waive its right to object to the verdict form because “the verdict form is not the per se issue. The primary issue is that the foreperson either misunderstood the Court’s questions in open court or this Court misunderstood the answer, and the issue did not come to light until the parties spoke with the jurors and received the completed verdict form.” Def.’s Reply at 33-34. Defendant is correct that the current issue is the Court’s interpretation of the verdict form, not the form itself. Nonetheless, had Defendant addressed these concerns prior to the jury’s discharge, the issue could have been addressed so as to avoid the confusion that ensued.
28 the Court -- which included $366,396 in back pay -- is inconsistent
with the evidence introduced at trial. Plaintiff’s own damages
expert testified that Plaintiff accrued a maximum of $122,132 in
back pay damages. Def.’s Mot. at 44. The jury obviously credited
that testimony and awarded precisely that amount. As Plaintiff
concedes, an award of $366,396 in back pay is “larger than the
amount a jury could tolerably have awarded.” Pl.’s Opp’n at 49.
Second, the jury’s entries on the verdict form indicate that
it intended to provide Plaintiff with only one award of back pay
and compensatory damages. In the entries for the federal FCA and
DCFCA claims, the jury wrote “same as 1a” and “same as 1b.” The
word “same” indicates that it did not intend to award any
additional damages for those counts. While it is true, in
hindsight, that a clearer verdict form might have been used, it is
also true that the jury indicated that it wished to award one total
award of $122,132 in back pay and $175,050 in compensatory damages
for the WPA, federal FCA, and DCFCA.
Third, under the case law, Plaintiff may not, in any event,
receive duplicative awards under three separate statutes for what
is essentially the same injury.
It is well-settled that a plaintiff is not permitted to
recover multiple awards for the same injury. E.E.O.C. v. Waffle
House, Inc., 534 U.S. 279, 297 (2002) (“As we have noted, it ‘goes
without saying that the courts can and should preclude double
29 recovery by an individual.’”) (quoting Gen. Tel. Co. of the
Northwest v. E.E.O.C., 446 U.S. 318, 333 (1980)); Anderson v. Group
Hospitalization, Inc., 820 F.2d 465, 473 (D.C. Cir. 1987) (“This
portion of the order, therefore, grants Anderson a double recovery
to which she is not entitled.”); United States v. Project on Gov’t
Oversight, 572 F. Supp. 2d 73, 77 (D.D.C. 2008) (“[T]he Court
declines to award the government another judgment against him in
the same amount arising out of the same conduct -- that would
amount to a double recovery.”); Miller, 563 F. Supp. 2d at 144
n.144 (“The law disfavors double recovery as unjust enrichment.”);
United States, ex rel. Miller v. Bill Harbert Int’l Constr., Inc.,
505 F. Supp. 2d 20, 23 (D.D.C. 2007) (“[T]he Court holds that the
government may not pursue its equitable claims since they would
result in a double recovery.”); United States v. Smith, 297 F.
Supp. 2d 69, 72 (D.D.C. 2003) (citing several cases for the
proposition that restitution does not include a double recovery).10
10 In Burger v. International Union of Elevator Constructors Local No. 2, 498 F.3d 750, 753 (7th Cir. 2007), the court ordered a new trial on damages because it was unclear whether the jury awarded $25,000, $50,000, or $75,000 in back pay. The trial court used a verdict form much like the one in the present case: the form listed each count, and then included a line beside each count for the jury to enter the damages award. Id. As a result, when the jury entered $25,000 on one line and $50,000 on the second, the total intended award was not clear. Id. The court ordered a new trial on damages because no reasonable interpretation of the verdict form could be “squared with the requirement that Burger’s lost wages must be the same regardless of whether liability exists under count one, count two, or both counts.” Id. at 754. In this case, unlike in Burger, there is a “reasonable interpretation” of (continued...)
30 Our case does not present that problem, since the jury ordered
the same amounts in back pay under each of the three statutes. To
allow Plaintiff to recover three separate awards of back pay and
three separate awards of compensatory damages would obviously
provide him with a triple recovery -- for which there is, as
Plaintiff concedes, no evidentiary basis.
In addition, the compensatory damages figure of $175,050 is
reasonable and has an evidentiary basis. A figure of three times
that -- $525,150 -- would clearly be excessive and does not have an
evidentiary basis, given the fact that Plaintiff was ultimately
able to find another equally challenging position with a slight
increase in pay. Most importantly, the jury’s language indicates
that it was including the “same” amount for each and every count,
demonstrating that it concluded that $175,050 was a single
appropriate amount. As noted earlier, Plaintiff cannot receive a
duplicative award for the same injury.
For these reasons, it is clear as a matter of law that the
jury intended to award a total of $122,132 in back pay and $175,050
in compensatory damages, rather than three times that amount. The
Court erred in initially entering a verdict of $891,546.
10 (...continued) the verdict form that is consistent with the prohibition on double recoveries. Interpreting the verdict form so as to permit only one award of back pay is not only reasonable, but is also more consistent with the evidence introduced at trial and with the jury’s own entries on the verdict form.
31 Accordingly, the judgment is amended to reflect the jury’s intended
award of $122,132 in back pay and $175,050 in compensatory damages.
Because the Court finds that as a matter of law, the jury awarded
a total of $122,132 in back pay and $175,050 in compensatory
damages, neither a new trial11 nor remittitur12 is ordered.
C. Plaintiff’s Motion to Alter or Amend the Judgment Is Granted in Part and Denied in Part
Plaintiff requests that the Court double the back pay award
under the federal FCA and under the DCFCA. Plaintiff argues that
“both the FFCA and DCFCA require the Court to award two times the
lost back pay if the jury finds a violation.” Pl.’s Mot. at 1. In
response, Defendant argues that “Plaintiff’s belief that additional
back pay is mandated is not supported by the plain meaning of the
statutes, case law, or legislative history.” Def.’s Opp’n at 1.
11 Because the Court determines that Plaintiff is entitled to the relief he seeks on other grounds, see supra, it is unnecessary to address Defendant’s argument that the Court erred when it provided an after-acquired evidence instruction on back pay but not on compensatory damages or punitive damages. 12 A court may order remittitur “only if the verdict is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Daskalea, 227 F.3d at 444 (internal citations and quotation marks omitted). Remittitur is not appropriate here for two reasons. First, the Court is not “unconditionally reduc[ing]” damages awarded by the jury, but is rather correcting an error in the entry of judgment. Second, because the Court determines that Plaintiff is entitled to the relief he seeks on other grounds, see supra, it is not necessary to consider Defendant’s alternative request for remittitur. Nonetheless, it is worth noting that Plaintiff “agreed that the Court should grant a remittitur and reduce the back pay award from $366,396.00 to $122,132.00.” Pl.’s Reply at 1.
32 The federal FCA states that “relief shall include
reinstatement with the same seniority status such employee would
have had but for the discrimination, [and] 2 times the amount of
back pay.” 31 U.S.C. § 3730(h) (emphasis added). The DCFCA uses
similar language. It states that an employer found liable under
the DCFCA “shall be liable for the relief necessary to make the
employee whole, including reinstatement with the same seniority
status that the employee would have had but for the discrimination,
[and] two times the amount of back pay . . . .” D.C. Code § 2-
308.16(c) (emphasis added).
A court “must presume that the legislature says in a statute
what it means and means in a statute what it says there.” Dodd v.
United States, 545 U.S. 353, 357 (2005) (internal citations and
punctuation omitted). When a court interprets the D.C. Code, it
may look to an analogous federal statute as a guide. See Wilburn,
957 A.2d at 925.
It is well-settled that when a statute uses the term “shall,”
it creates a mandatory duty. See, e.g., Lopez v. Davis, 531 U.S.
230, 231 (2001) (“Congress used “shall” to impose discretionless
obligations”); see Green v. Bock Laundry Mach. Co., 490 U.S. 504,
525 n.32 (1989) (“The process by which Congress changed the
District of Columbia Code to provide that impeaching evidence
‘shall,’ not ‘may,’ be admitted . . . makes it evident that this
mandatory language was intended.”); Zivotofsky v. Sec’y of State,
33 571 F.3d 1227, --- (D.C. Cir. 2009) (“Section 214(d) is plainly
mandatory . . . ‘Shall’ has long been understood as ‘the language
of command.”) (quoting Escoe v. Zerbst, 295 U.S. 490, 493 (1935))
(additional citations omitted); Leonard v. Dist. of Columbia, 801
A.2d 82, 84-85 (D.C. 2002) (“[T]he normal rule is that verbs such
as “must” or “shall” denote mandatory requirements . . . unless
such construction is ‘inconsistent with the manifest intent of the
legislature or repugnant to the context of the statute.”) (internal
The federal FCA uses the term “shall” to introduce the list of
the types of relief available under the statute. Our Court of
Appeals explicitly recognized the legal consequences of this term,
stating that “all the § 3730(h) remedies are phrased in mandatory
language (the employee “shall be entitled,” etc.).” Yesudian, 270
F.3d at 972. Thus, it is clear that the federal FCA creates a
mandatory duty to award Plaintiff twice the amount of back pay
awarded by the jury.
The DCFCA imposes the same obligation. In the DCFCA, the word
“including” introduces a list of several different types of relief,
including “two times the amount of back pay.” D.C. Code § 2-
308.16(c). Defendant argues that “[t]wo times the amount of back
pay is merely illustrative of the manner in which an employee can
be made whole and not a statutory requirement that each and every
type of relief listed is mandatory.” Def.’s Opp’n at 9 (emphasis
34 in original).
The language of the statute is plain, however, that the
“relief necessary to make the employee whole” includes two times
back pay. The statute uses no language to suggest that the list of
types of relief is intended to be “merely illustrative.” The
specific types of relief are not listed to provide an illustration
of options that might be available, but are instead listed to show
the options that must be available to an employee in order to “make
[him] whole.” Because this list contains an award of “two times
the amount of back pay,” a party found liable of a violation of the
DCFCA is obligated to pay the plaintiff double the amount awarded
by the jury.
Although it is clear that the Court is required by both the
federal FCA and the DCFCA to double the back pay award, one issue
remains unresolved: should Plaintiff receive two separate awards of
two times back pay, one for the federal FCA and one for the DCFCA,
or should Plaintiff receive only one award of two times back pay.
Awarding Plaintiff separate damages awards under the federal
FCA and DCFCA would result in a duplicative recovery. As stated
supra II.B.2, a plaintiff is not permitted to recover multiple
damages awards for the same injury. See id. (citing Waffle House,
Gen. Tel., Anderson, Project on Gov’t Oversight, Miller, Bill
Harbert Int’l Constr., and Smith). Accordingly, Plaintiff is
entitled to only one award of two times back pay.
35 The jury awarded $122,132 in back pay. See supra II.B.2. For
the reasons stated above, Plaintiff is entitled to a total back pay
award of two times the jury’s award, or $244,264.
III. CONCLUSION
For the reasons set forth above, Defendant’s Motion for
Judgment as a Matter of Law is denied, Defendant’s Motion to Amend,
Alter the Judgment, or for New Trial, or, in the Alternative,
Motion for a Remittitur is granted in part and denied in part, and
Plaintiff’s Motion to Alter Judgment is granted in part and denied
in part. The judgment is amended as follows: Defendant is liable
to Plaintiff for a total of $244,264 in back pay and a total of
$175,050 in compensatory damages. The total award for back pay and
compensatory damages is $419,314.13
13 Defendant submitted, on August 31, 2009, a Notice of Supplemental Authority in support of the two Motions under consideration at this time. Defendant cites to Gross v. FBL Financial Svcs., Inc., 129 S.Ct. 2343 (2009), to buttress its argument under the Federal and District of Columbia False Claims Acts. Gross is distinguishable for at least two reasons: first, it involved the Age Discrimination in Employment Act, 29 U.S.C. § 623(a), and this case does not arise under that statute; and second, in its reasoning, the Court replied upon the existence of a disparate treatment claim, and that is not the claim in this case.
36 An Order shall accompany this Memorandum Opinion.
/s/ September 9, 2009 Gladys Kessler United States District Judge
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