Iovino v. Michael Stapleton Assocs., Ltd.

600 F.Supp.3d 610

Karen IOVINO, Plaintiff,

v.MICHAEL STAPLETON ASSOCIATES, LTD. d/b/a MSA Security, Inc., Defendant.

Civil Action No. 5:21-cv-00064

United States District Court, W.D. Virginia, Harrisonburg Division.

Signed April 25, 2022

John A. Kolar, Director of Litigation, Washington, DC, Nate Lavinder Adams, III, Nate L. Adams, III, P.C., Winchester, VA, for Plaintiff.

Daniel Sage Ward, Ryan Christopher Berry, Ward & Berry, PLLC, Tysons, VA, for Defendant.

MEMORANDUM OPINION

THOMAS T. CULLEN, UNITED STATES DISTRICT JUDGE

Plaintiff Dr. Karen Iovino is a veterinarian who treats dogs that are specially trained to help law enforcement agencies recover explosives. Her employer, Defendant Michael Stapleton Associates, Ltd. ("MSA"), contracts with the United States Department of State ("DoS") to train and care for these dogs before their deployments. For more than a year, Iovino apparently complained to her supervisors about how the dogs were treated overseas, MSA's billing practices, and staffing decisions that affected her work. Iovino claims that they ignored her, so she filed a whistleblower complaint with DoS's Office of the Inspector General ("OIG"). Less than a month later, MSA declined to renew Iovino's contract, despite an earlier agreement to convert Iovino to a full-time employee.

Iovino appealed the non-renewal to DoS arguing that the decision was retaliatory, and an investigation ensued. But DoS ultimately determined that MSA did not retaliate against Iovino. She now brings this suit against MSA, claiming that her contract was not renewed in violation of 41 U.S.C. § 4712, a statute that protects whistleblowers working for government contractors.

MSA has filed a motion to dismiss or, in the alternative, to strike substantial portions of Iovino's complaint. (ECF No. 7.) For the reasons discussed below, the court construes MSA's motion as one to strike, which it will deny in large part, but grant in part.

I. BACKGROUND

Iovino worked as a veterinarian for MSA from October 2015 until August 2017. (Compl. ¶ 16 [ECF No. 1].) MSA is a security company, under contract with DoS to support the department's anti-terrorism programs. (Id. ¶ 14.) MSA trains explosive detection canines for foreign law enforcement and deployment to U.S. facilities abroad. (Id. ) These dogs receive instruction and care at MSA's Canine Validation Center ("CVC") in Winchester, Virginia. (Id. ¶¶ 7, 14, 15.)

Iovino was initially hired to work at CVC part-time. (Id. ¶ 16.) She helped the onsite veterinary hospital get its operating license and served as its "Veterinarian in Charge." (Id. ) Zane Roberts, CVC's program manager, served as Iovino's direct supervisor. (Id. ) Roberts shared Iovino's commitments to CVC's anti-terrorism mission and the dogs’ wellbeing. (Id. ¶ 17.) They were concerned about the care the dogs received abroad, and Roberts repeatedly expressed these concerns to his supervisors. (Id. ¶ 18.) Josh Carter and Alan Bower supervised Roberts and were in charge of CVC at the relevant times. (Id. ) They later hired Dr. Michael Ratcliff, who eventually replaced Roberts. (See id. ¶¶ 16, 107.)

For at least a period of time, MSA apparently considered Iovino a model employee. On February 24, 2017, Ratcliff asked Iovino to work for MSA full-time when her part-time contract expired that fall. (Id. ¶ 43.) They negotiated how many hours she would work each week and whether she could work some of those hours remotely. (Id. ) The pair reached an agreement, and Ratcliff told Iovino that everyone at CVC loved working with her. (Id. )

Iovino accepted the full-time position even though she felt that her relationship with CVC management had been fraying for almost a year. (Id. ¶ 26.) In April 2016, Iovino had started sending herself emails documenting her frustrations. (Id. ) Broadly speaking, her discontent arose from three sources. First, Iovino became concerned about the care the dogs received abroad. Some CVC staff traveled to Jordan in early 2016 to evaluate the treatment of the dogs there. (Id. ¶ 19.) Roberts and others who had made the trip told Iovino that the dogs were overworked and poorly sheltered. (Id. ) In June 2017, canine handlers in Jordan told Iovino that the dogs were forced to work in 140-degree heat. (Id. ¶ 57.) Her contact in Jordan allegedly feared for the dogs’ safety. (Id. ) She voiced these concerns to Ratcliff, who dismissed them. (Id. ) She also learned that handlers had been instructed to remove pictures of an emaciated dog from a report sent to DoS. (Id. ¶ 58.) And on July 18, 2017, one of CVC's dogs stationed in Jordan died. (Id. ¶ 75). The suspected cause was hyperthermia. (Id. )

Second, Iovino alleges that MSA's billing practices made her uncomfortable. On occasions when she worked more than 40 hours in a week, Ratcliff and Bower told her to take unofficial paid time off ("PTO") instead of overtime. (Id. ¶ 46.) Iovino did not receive time and a half for these hours, even though MSA billed them to DoS. (Id. ¶¶ 46–48.) Iovino also claims that other employees abused the practice, routinely leaving early on Fridays but billing for the entire workday. (Id. ¶ 63.) Iovino estimates that DoS paid more than $170,000 a year for these hours that nobody worked. (Id. )

Third, Iovino bristled at some of CVC's staffing decisions. On the hiring side, Carter ordered Iovino to hire Jennifer Houston for an open veterinary technician position. (Id. ¶ 21.) Iovino had wanted to interview a second candidate, who had worked at CVC on an as-needed basis, but she was overruled. (Id. ) Houston frequently arrived late to work, sometimes smelling of alcohol. (See id. ¶ 56 & n.1.) Other times, she left early without completing her duties. (Id. ¶ 33.) When she was working, her performance was sometimes mediocre; on one occasion, Houston, according to Iovino, made an error that could have suffocated one of the dogs. (Id. ¶ 32.) MSA never disciplined her beyond a written counseling. (See id. ¶ 28.) In 2019, the Virginia Board of Veterinary Medicine suspended Houston's license indefinitely for alcoholism. (Id. ¶ 56 & n.1.) Houston admitted to showing up to work drunk on nine occasions, including during her employment at CVC. (See id. )

MSA also hired Ratcliff during Iovino's tenure. Ratcliff replaced Iovino as the person in charge of the veterinary hospital. (Id. ¶ 29.) Iovino thus perceived his hire as an effective demotion. (Id. ) Ratcliff soon told CVC staff that DoS wanted MSA to limit the dogs’ veterinary care to what could be done onsite. (Id. ¶ 34.) The policy stretched CVC staff to their professional limits. For instance, under this new policy, Iovino had to perform her first-ever hindleg amputation on one day's notice. (Id. ¶ 45.)

Iovino also saw her closest ally, Roberts, sidelined within CVC. Roberts, throughout his tenure, had voiced his and Iovino's concerns about the dogs’ care to his supervisors. Carter eventually suspended Roberts for 10 days and further reduced his responsibilities. (Id. ¶ 167.) In October 2017, Roberts left CVC. (Id. ¶ 39.)

Iovino's apparent frustration with MSA's treatment of the dogs, billing practices, and staffing decisions prompted her to file an OIG Complaint on July 6, 2017. (Id. ¶ 59.) Among other things, she stated that CVC was rampant with "time sheet fraud," "reports [that] canines are dying," and "abuse[s] of power" related to hiring and firing decisions. (See OIG Investigation Report at 1 [ECF No. 14-2].) In filing her complaint, she declined anonymity. (Id. )

After this submission, Iovino alleges that MSA retaliated against her "by making her compete for [her] own position, not selecting her for her own position, suspending her, and discharging her in retaliation for her protected activities." (Compl. ¶ 189.) Namely, Iovino alleges that, just eight days after she filed her OIG Complaint, Ratcliff told her that MSA had decided to create a new, full-time veterinarian position, rather than convert Iovino's current position into a full-time position (which MSA and Iovino had agreed to that spring). (Id. ¶ 70.) Accordingly, she would have to reapply. (Id. ¶ 71.) Iovino and Ratcliff had previously discussed MSA converting her position to a full-time position, and so reapplication was "unusual." (Id. ¶ 72.)

MSA suspended Iovino with pay on August 4, 2017, because it believed Iovino was considering leaking confidential information to the Washington Post. (Id. ¶¶ 89–90.) The contractor allowed Iovino's part-time position to expire on August 18. (Id. ¶ 93.) It then hired someone to fill Iovino's position for six months until its preferred full-time candidate could start. (Id. ¶ 94.)

Iovino challenged MSA's decision to renege on its February 24, 2017, offer of full-time employment by filing a retaliation complaint with the OIG, asserting that the choice was made in retaliation for her original OIG Complaint.¹ And she won. (Id. ¶ 97; see also ECF No. 14-3 (hereinafter, "2018 DoS Decision.") But MSA appealed that determination, and DoS reopened the proceedings. (Compl. ¶¶ 98, 100.) Both sides supplemented the record. Iovino's Supplemental Memorandum of Law ("Agency Filing")² states, in the first bolded heading in its argument section, that MSA retaliated against her "for filing a complaint of fraud, waste and abuse with the [OIG]." (ECF No. 8-1, at 7.) She explicitly frames the relevant issue as "whether Iovino was ‘discharged, demoted or otherwise discriminated against’ as a reprisal for disclosing the information to OIG." (Id. at 8.) Her conclusion restates that she had "made protective disclosures ... to OIG," and reiterates that MSA "engaged in retaliatory conduct" "[a]fter learning of the disclosures." (Id. at 13.) On October 30, 2019, DoS reversed its earlier determination and concluded that MSA had done nothing wrong. (Compl. ¶ 102; see also ECF No. 8-2 (hereinafter, "2019 DoS Decision").)

Having completed DoS's internal process, Iovino filed a complaint in this court. MSA moved to dismiss the complaint for lack...