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Irving v. Pae Government Services, Inc.

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

November 1, 2017




         Plaintiff, in this False Claims Act ("FCA")[1] retaliation and breach of contract case, asserts two claims: (i) that he was discharged in retaliation for engaging in FCA protected activity; and (ii) that defendant breached an oral severance agreement plaintiff claims he reached with defendant. Defendant now seeks summary judgment on both claims, contending that the undisputed factual record reflects that: (i) plaintiff did not engage in protected activity; (ii) defendant had no notice of any protected activity; and (iii) plaintiff was not terminated because of any alleged protected activity, but rather was terminated for legitimate, non-retaliatory reasons. Plaintiff opposes defendant's motion, arguing that a reasonable trier of fact could conclude that plaintiff was terminated because of his reports to his supervisors, which, in plaintiffs view, constituted protected activity. Further, plaintiff argues that defendant's stated reason for plaintiffs termination is pretext for retaliation. With respect to the breach of contract claim, plaintiff and defendant dispute whether under Virginia law a legally enforceable oral contract was created where, as here, the parties agreed that the contract would be reduced to writing for signature.


         Plaintiff, Jeffry Irving, is a resident of Alexandria, Virginia who formerly worked for defendant, PAE Government Services Inc. ("PAE"), a California-based government contractor that provides support services to U.S. government entities both domestically and internationally.

         Defendant first hired plaintiff in 2010 as PAE Company International Security Manager/Chief of Security. In December 2014, plaintiff was hired as Deputy Program Manager ("DPM") on the BAS Contract based in Kabul, Afghanistan. Pursuant to the BAS Contract, defendant, in association with two subcontractors-GardaWorld and Olive Group North American ("OGNA"), provided mobile and static security services for the Department of State ("DOS"). In plaintiffs role as DPM, plaintiff was responsible for overseeing defendant's subcontracts, managing a group of employees who reported to him, and ensuring compliance with DOS contract requirements and other laws and regulations.

         At issue in this case are four sets of reports that plaintiff made to his supervisors during his employment as DPM of the BAS Contract, including: (i) reports concerning allegedly noncompliant body armor; (ii) reports concerning the use of government vehicles to transport alcohol; (iii) reports concerning the arming of BAS Contract employees; and (iv) reports concerning false time reporting on the BAS Contract. Each of these reports is addressed in turn.

         Plaintiffs reports with respect to body armor began in 2015. In early May 2015, OGNA conducted a field test on the body armor OGNA used on the BAS Contract and determined the body armor did not comply with OGNA's subcontract with defendant. In response to these test results, defendant directed OGNA to replace the body armor through a Corrective Action Request. Later that month, on May 19, 2015, plaintiff met with Janice Pfundheller ("Pfundheller"), defendant's Vice President of Governance and Institutional Development, and Devin Reynolds ("Reynolds"), defendant's BAS Static Security Chief, to discuss plaintiffs concerns about the OGNA body armor and the possibility of loaning defendant's body armor to OGNA. Plaintiff, Reynolds, and Pfundheller discussed the fact that defendant might need to obtain approval pursuant to International Traffic in Arms Regulation ("ITAR") prior to loaning defendant's body armor to OGNA. The day after the meeting, plaintiff, without first obtaining the ITAR approval, directed Reynolds to loan defendant's body armor to OGNA. After the loan of defendant's body armor to OGNA, plaintiff sought authorization from Brad Baldwin ("Baldwin"), defendant's BAS Senior Operations Specialist, for the body armor loan.

         Shortly after loaning defendant's body armor to OGNA, plaintiff developed concerns about defendant's body armor, as well. Specifically, plaintiff was concerned that the body armor was not certified by the National Institute of Justice ("NIJ") pursuant to what plaintiff believed the BAS Contract required.[3] Plaintiff disclosed his concern about this body armor to Pfundheller. Then, without Pfundheller's approval or authorization, [4] on May 21, 2015, plaintiff directed Reynolds to conduct a field test of defendant's body armor. The body armor passed a 9mm handgun test, and Reynolds concluded that "the safety and protection of [the] team [was] not in jeopardy." Doc. 46 Ex. 24 at 2. Upon hearing about the unauthorized test of defendant's government-issued body armor, Stephen Easley, PAE's Senior Operations Manager, launched an investigation into the body armor issue.[5]

         In addition to plaintiffs reports about defendant's body armor, plaintiff reported to his supervisors that defendant's BAS Contract staff was using government-funded equipment- vehicles-to transport alcohol. Plaintiff also reported to his supervisors that members of the BAS Contract staff were not armed even though plaintiff believed that the BAS Contract required those staff members to be armed. Finally, plaintiff reported to his supervisors that he saw some contractors sitting in the courtyard during the workday and therefore was concerned that the contractors' billing might not be accurate. It appears from the record that plaintiff never examined or reviewed any time records and that plaintiff reported concerns about billing because he was concerned about defendant's reputation and profits. See PI. Dep. at 264:7-14.

         On July 29, 2015, Easley arranged a meeting with plaintiff to discuss plaintiffs performance in his role as DPM. After the meeting, Easley formally documented and sent to plaintiff a list of plaintiff s performance issues including:

(1) that plaintiff, without authorization, directed a test of body armor and that test involved the destruction of property belonging to the government;
(2) that plaintiff failed to follow Pfundheller's direction to obtain ITAR clearance prior to loaning defendant's body armor to OGNA;
(3) that plaintiff interacted negatively with other teams, subcontractors and partners;
(4) that plaintiff displayed a negative attitude about defendant as a company; and
(5) that plaintiffs abused his subordinate staff.

See Doc. 46 Ex. 35 at 1-2. Thereafter, on September 14, 2015, Mark Hunter, BAS Mobile Security Chief, sent Easley an email, complaining about plaintiff. Easley forwarded Hunter's complaint to LaTanya D'Antignac ("D'Antignac"), a member of defendant's Human Resources Department, who conducted an investigation into the allegations in the complaint. As a part of the investigation, D'Antignac interviewed plaintiff and several of his subordinates, including: Hunter, Reynolds, Ralph Brugueras, Al Gopez, and Florencio Cortez. D'Antignac also interviewed two other DPMs, Mark Kennedy and Jon Dobre.

         On October 12, 2015, after concluding her investigation, D'Antignac submitted her interview notes and investigative summary to Easley, Pfundheller, and Kathleen Long, the Director of Human Resources. D'Antignac's investigation substantiated Hunter's allegations against plaintiff, including plaintiffs failure of leadership and intimidation or harassment of his subordinates. Specifically, D'Antignac found that:

(1) plaintiff created a divisive workplace;
(2) plaintiff deliberately injured the feelings of and demonstrated a lack of respect for his employees;
(3) plaintiff did not demonstrate commitment to his leadership position on the BAS Contract;
(4) plaintiff had a reputation for being confrontational, hot-tempered and unreasonable;
(5) plaintiff failed to convey clearly assignments to his team resulting in poor or inadequate communication;
(6) plaintiffs continuous negative attitude created hostility and decreased employee engagement and satisfaction;
(7) plaintiff lacked the basic interpersonal skills needed to lead the BAS Contract effectively.

See Easley Deck Ex. 8 at 39-40. Ultimately, D'Antignac concluded that defendant should terminate plaintiff. Based on D'Antignac's report, Easley, Long, and Pfundheller jointly made the decision to terminate plaintiff[6]

         Thereafter, on October 19, 2015, Easley, Long, and Pfundheller met with plaintiff in Virginia and informed plaintiff that his employment would be terminated. During the October 19 meeting, Easley, Long, Pfundheller, and plaintiff discussed the terms of a severance package for plaintiff. All parties agreed that the severance package would be reduced to writing for the parties' signatures. The next day-on October 20, 2015-Long sent plaintiff a copy of a severance agreement for review and signature and officially terminated plaintiffs employment. There is no dispute that the parties agreed in the October 19 meeting that defendant would reduce the severance agreement to writing and present it to plaintiff the following day. Plaintiff contends that agreement on all severance terms was reached at the October 19 meeting and that the written agreement presented to plaintiff the next day did not reflect that agreement.

         On December 30, 2016, plaintiff filed the complaint in this action. The complaint's remaining claims[7] include: (i) that plaintiff was discharged in retaliation for reporting alleged violations of the FC A; and (ii) that defendant breached an oral agreement created at the October 19 meeting by not paying plaintiff his full salary in the final severance agreement. On September 8, 2017, defendant filed the motion for summary judgment at issue here with respect to the remaining FCA retaliation and breach of contract claims.

         In its motion for summary judgment, defendant argues that summary judgment is appropriate because (i) plaintiffs various complaints to his supervisors concerning body armor, alcohol transports, weapons, and time reporting did not constitute protected activity; (ii) defendant had no notice of any protected activity; and (iii) plaintiff was not terminated because of any protected activity. Instead, defendant contends that plaintiff was terminated for a legitimate, non-retaliatory reason-plaintiffs poor management and interpersonal skills-and that there is no record evidence showing a triable issue of fact on whether that reason is pretextual. With respect to the breach of contract claim, defendant argues that there was no enforceable agreement between plaintiff and defendant as of the October 19 meeting because the parties clearly intended for any agreement to be reduced to writing. Plaintiff does not ...

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