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Nifong v. SOC, LLC

United States District Court, E.D. Virginia, Alexandria Division

February 14, 2017

KENLY B. NIFONG, Plaintiff,
v.
SOC, LLC, Defendant.

          MEMORANDUM OPINION

          T. S. ELLIS, III UNITED STATES DISTRICT JUDGE

         At issue on summary judgment in this False Claims Act (“FCA”)[1] retaliation case is whether the undisputed factual record entitles the defendant to judgment as a matter of law. Plaintiff, Kenly Nifong, contends that defendant, SOC, LLC (“SOC”)-a federal contractor and Nifong's former employer-discharged Nifong because he reported to his supervisor and the Department of State that SOC may have overcharged the government with respect to the billing rate of an SOC employee.[2] As the matter has been fully briefed and argued orally, it is now ripe for disposition. For the reasons that follow, SOC's summary judgment motion must be granted.

         I.

         A.

         To begin with, it is necessary to address whether the parties complied with the requirements for presenting a summary judgment motion elucidated in Local Civil Rule 56(B) and the Rule 16(b) Scheduling Order issued in this matter. Pursuant to Local Rule 56(B) and the Rule 16(b) Scheduling Order, a motion for summary judgment must contain a separately captioned section listing, in numbered-paragraph form, all material facts that the movant contends are not genuinely disputed. See Rule 56, Local Civ. R.; Nifong v. SOC, LLC, No. 1:16-cv-63 (E.D. Va. July 7, 2016) (the “July 7 Order”). Although SOC fully complied with both the Local Rule and the July 7 Order, Nifong did not; Nifong only partially complied.

         Specifically, although Nifong noted that he does not contest 29 of SOC's 62 undisputed material facts, he did not clearly and specifically respond to the remaining 33 facts asserted by SOC. For example, Nifong simultaneously admitted and disputed one of SOC's facts. Compare P. Br. (Doc. 57) at 1 (admitting paragraph 30) with Id. at 16 (disputing paragraph 30 without citation or explanation). Nifong also neglected to address some of SOC's factual paragraphs altogether: Nifong does not address defendant's paragraphs 24, 52, 58 or 60. Moreover, Nifong submitted his own narrative statement of undisputed facts comprising eleven pages. This alternative, narrative statement of facts not only fails to comply with the July 7 Order, but also serves to undermine Local Rule 56(B) by frustrating the ability to determine which material facts are genuinely in dispute. See Integrated Direct Marketing, LLC v. May, 129 F.Supp.3d 336, 345 (E.D. Va. 2015) (a party's “narrative version of its own interpretation of the facts fails to comply with Local Civil Rule 56(B), largely contains argument, and makes it difficult to determine exactly which material facts are disputed”). Because Nifong did not comply with Local Rule 56(B) and the July 7 Order, “[t]he Court may assume that any fact identified by the movant as undisputed … is admitted for the purpose of deciding the motion for summary judgment.” Nifong v. SOC, No. 1:16-cv-63 (E.D. Va. July 7, 2016). Nonetheless, Nifong's narrative statement of facts and responses to SOC's statement of facts will be considered as a whole and scoured to identify any material facts that might reasonably be in dispute.

         As the following list of undisputed material facts reveals, there are some facts that Nifong contends to be in dispute, but those disputes are either immaterial or unsupported. Any material fact identified in SOC's briefs-but properly disputed by Nifong-is omitted from the list below.

         B.

         • In 2012, SOC hired Nifong as an at-will employee. Nifong was hired to serve as a Deputy Project Manager - Operations (“DPMO”) for SOC's contract with the State Department to provide security for the U.S. Embassy in Baghdad, Iraq.

         • According to Nifong's employment contract and deployment letter, SOC's “target rotation” was for Nifong to spend 105 days in Iraq, followed by 35 days of unpaid leave, during which time Nifong was deemed “on the bench” and was not entitled to any salary or other compensation.

         • This target rotation, however, was tentative, and the actual deployment schedules for SOC employees often changed based on the company's business needs. For instance, the Iraqi government frequently denied or delayed the issuance of visas, which sometimes made it more difficult for SOC to replace employees in Iraq and permit deployed personnel to go on leave.

         • On March 13, 2013, Nifong deployed to Iraq, and his initial assignment was as DPMO at the Baghdad Diplomatic Support Center.

         • Nifong had broad supervisory authority over the Bagdad Diplomatic Support Center and was subordinate only to SOC's Project Manager in Iraq. As of June 2013, SOC's Project Manager in Iraq, and thus plaintiffs supervisor, was Bancroft McKittrick.

         • SOC was also responsible for providing security for a separate facility in Iraq, the Bagdad Embassy Compound.

         • On June 21, 2013, SOC promoted James McKaughn from his position as a Protective Security Specialist (“PSS”) to a Shift Leader at the Baghdad Diplomatic Support Center.

         • SOC bills the government a higher rate for a Shift Leader than for a PSS.

         • Nifong questioned McKaughn's promotion from a PSS to Shift Leader because there were insufficient personnel to staff a team for McKaughn to lead.

         • On June 30, 2013, Nifong notified his supervisor, McKittrick, of McKaughn's promotion from PSS to Shift Leader.

         • At the time Nifong sent the June 30 notification to McKittrick, Nifong knew that SOC had not yet billed the government for McKaughn's services at the higher Shift Leader rate.

         • In response to Nifong's June 30 notification, McKittrick commended and thanked Nifong for raising the issue.

         • That same day, June 30, 2013, McKittrick also directed Kismet Rollins, the Deputy Program Manager of Facilities and Support and one of Nifong's peers, to determine what needed to be done to ensure proper accounting for McKaughn's assignment. McKittrick also instructed Nifong to coordinate with Rollins and SOC corporate personnel to ensure that the correct information was provided to SOC's employee responsible for reporting personnel assignments to the State Department.

         • Ms. Rollins responded by email to McKittrick's directions, opining that SOC should fill high paying positions so that SOC would make more profit.

         • Nifong responded by proposing that McKaughn be reassigned to a PSS.

         • McKittrick replied, agreeing with Nifong's recommendation that McKaughn be reassigned to a PSS.

         • Later that same day, June 30, 2013, Nifong provided Kismet Rollins documentation correcting McKaughn's assignment.

         • In response, Rollins asked Nifong for a status change form that would restore McKaughn to a PSS position. As a result, on July 1, 2013, the status change form was executed, and McKaughn was restored to his lower-billing position as a PSS.

         • The State Department had a Government Technical Monitor onsite in Iraq to review these precise kinds of assignment and billing issues.

         • In fact, McKittrick notified the Government Technical Monitor of the Shift Leader assignment issue. The Government Technical Monitor considered SOC's steps to be the appropriate corrective action, and did not discuss McKaughn's assignment further.

         • On July 2, 2013-before checking whether or how SOC had billed for McKaughn's services as a Shift Leader-Nifong sent an email from his personal email account to a State Department Regional Security Officer, Anthony Hill.

         • In that email to Mr. Hill, Nifong reported McKaughn's nine-day assignment to a Shift Leader position. Nifong also advised that SOC was unaware of Nifong's report to the State Department. Id.

         • Shortly thereafter, Nifong also shared vague details about his July 2 email with Chris Vega, one of the State Department's Assistant Regional Security Officers.

         • Neither McKittrick nor Rollins knew that Nifong had made this report to the State Department until after Nifong's termination.[3]

         • Nifong subsequently spoke with Joshua Noble, SOC's logistics and administrative manager, and asked whether SOC had done anything to change the bills or invoices for McKaughn's services. Mr. Noble stated that he did not know whether any bill or invoice had been changed. Nifong did not pursue this issue further.

         • Nifong, despite claiming that Mr. Noble's response alarmed him, did not address any concern regarding overbilling with his supervisor or SOC's management personnel until December 6, 2013, at which time Nifong informed SOC that he had been subjected to retaliation, that he would not redeploy to Iraq, and that he was instead seeking other employment.

         • In fact, after McKaughn returned to a PSS position, neither Nifong nor his subordinates found any instance where one of SOC's employees was improperly assigned to a position at the Baghdad Diplomatic Support Center.

         • Ultimately, SOC billed the government for McKaughn's services for June 21-July 1, 2013 at the higher Shift Leader rate, for a total overcharge of $573.90. SOC did not recognize this billing error until 2014, and subsequently gave the State Department a credit for that same amount, $573.90.

         • Notwithstanding Nifong's June 30, 2013 communication with McKittrick and the July 2, 2013 communication with the State Department, Nifong twice elected to extend his deployment in Iraq beyond the “target” of 105 days.

         • To compensate Nifong for extending his deployment, SOC, in August 2013 and September 2013, paid him a combined $18, 000 in bonuses.

         • In 2013, SOC had a written policy requiring employees to be familiar with International Traffic in Arms Regulations (“ITAR”) before becoming involved in any transaction that contemplates the transfer of defense articles or services.[4]

         • In this vein, on August 13, 2013, Nifong received compliance training on SOC's Export and Import Control manual.

         • According to SOC's policy, employees must consult with the SOC Empowered Official for ITAR matters-Linda Rudisill-or the SOC Compliance Committee before transferring defense articles. Employees must comply with this policy so that SOC's Empowered Official or Compliance Committee may determine whether a license is required.[5]

         • From August to October 2013 Nifong, despite ITAR and SOC's policies, transferred thousands of rounds of U.S.-manufactured ammunition to U.S. Special Forces personnel so that the ammunition could be given to Iraqi Special forces. In doing so, Nifong hoped that the Iraqi Special Forces would permit SOC employees to use the Iraqi Special Forces firing range.

         • During this same timeframe, Nifong ceremonially gave four or five boxes of U.S. manufactured ammunition to an Iraqi general in the presence of U.S. Special Forces personnel. Yet, Nifong did not have the required authorization-from SOC's Empowered Official or Compliance Committee-to do so. Nifong was therefore in violation of SOC's Export Manual.[6]

         • On September 25, 2013, Nifong and two of his peer Deputy Project Managers-Odis Goodnight and Tandy Carter-received notice of their respective leave and rotation schedules.

         • Nifong's schedule stated that he would go on leave starting October 29, 2013, and return 70 days later as the DPMO for the Baghdad Embassy Compound. The contemplated 70 days' leave doubled the “target” of 35 days' leave.

         • Nifong's peers, Odis Goodnight and Tandy Carter, also received schedules that, like Nifong's schedule, exceeded ...


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