Kakeh v. United Planning Organization, Inc.

537 F.Supp.2d 65

Mohammed Amin KAKEH, Plaintiff, v. UNITED PLANNING ORGANIZATION, INC., Defendant.

Civil Action No. 05-1271 (GK).

United States District Court, District of Columbia.

February 27, 2008.

COPYRIGHT MATERIAL OMITTED

Omar Vincent Melehy, Zipin & Melehy, LLC, Regan Lindsay Rush, Melehy & Associates LLC, Silver Spring, MD, for Plaintiff.

David A. Rosenberg, Kevin M. Kraham, Alison N. Davis, Jeffrey J. Sun, Ford & Harrison LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Plaintiff Mohammed Amin Kakeh brings this whistle-blowing 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 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). This matter is before the Court on Defendant's Motion for Summary Judgment [Dkt. No. 73]. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendant's Motion for Summary Judgment is granted as to Count II and denied as to Counts I, III, IV, and V.

I. BACKGROUND¹

The United Planning Organization ("UPO") is a private, nonprofit corporation that addresses issues of poverty in the District of Columbia. It receives funding from both the federal and District of Columbia governments, including Community Services Block Grants ("CSBGs"), which are federal anti-poverty block grants administered by the District of Columbia Department of Human Services ("DHS").

Plaintiff was hired as UPO's Controller in 1998 as an at-will employee. In this role, he was responsible for managing UPO's financial operations and its audit and accounting functions. Plaintiff initially reported to Gladys Mack, who was UPO's Deputy Executive Director at the time. In April 2003, Plaintiff began to report to UPO's newly appointed Chief Financial Officer, Sheila Shears. At this time, Benjamin Jennings was UPO's Executive Director.

In October 2003, Plaintiff sent two memoranda to Jennings complaining that his role had changed following the hiring of Shears and accusing Shears and Mack of harassment and retaliation. UPO treated the memoranda as formal complaints of discrimination, investigated these allegations, and determined them to be baseless.

In early 2004, DHS commenced a routine monitoring review of UPO's finances. The monitoring review formally commenced on February 19, 2004, when Tunde Eboda, CSBG Program Manager at DHS, met with Jennings, Mack, and Shears. Plaintiff did not attend this meeting. During the review, DHS requested financial and other information from UPO and met with a number of UPO employees, including Plaintiff.

A draft preliminary report of the DHS monitoring review, submitted to UPO's Board of Trustees on March 11, 2004, revealed a number of financial irregularities at UPO. The report noted, among other things, that UPO could not generate timely financial statements, UPO management had circumvented cash disbursement procedures, large amounts of cash disbursements were unsupported, and UPO's liquidity situation had deteriorated. The report concluded that UPO's financial management system did "not meet Federal grant standards." Declaration of Gladys Mack, Nov. 27, 2006, Ex. B (FY 2004 CSBG On-site Monitoring Review Draft Preliminary Report) at 2. As a result of this draft report, the UPO Board on March 11, 2004 both suspended Jennings with pay and appointed Mack as the acting Executive Director. On April 5, 2004, Dana Jones was appointed as UPO's new Executive Director.

Plaintiff alleges that he became aware of this financial mismanagement in 2003. Indeed, Plaintiff first met with Eboda on February 5, 2004, prior to Eboda's meeting with Jennings, Mack, and Shears, and said that UPO was engaging in fraud, waste, and abuse. Between February and May 2004, Plaintiff had a number of additional meetings with Eboda, as well as meetings with other officials from DHS (including from the DHS Inspector General's Office), the United States Department of Health and Human Services ("HHS") Inspector General's Office, and the United States Department of Justice. The parties dispute whether Eboda ever disclosed to UPO that Plaintiff had met with him outside of the scope of the formal DHS monitoring review.

Shortly after DHS disclosed the preliminary results of its monitoring review to UPO's Board on March 11, 2004, HHS began its own review of UPO's Head Start program. As a result of this review, HHS sent a letter to UPO on April 20, 2004 informing UPO of deficiencies in its program governance and fiscal management, and designated UPO as a "high-risk grantee." Deposition of Dana Jones, Feb. 27, 2006, Ex. 13 (Apr. 20, 2004 Correspondence from Quinetta Penn to Russell Simmons). UPO was required to correct these deficiencies within one year or risk losing its Head Start grant from HHS.

On March 3, 2004 and again on March 25, 2004, Gladys Mack, who was acting Executive Director of UPO as of March 11, 2004, asked Plaintiff to make changes to a UPO financial statement. "The parties strenuously disagree about the nature of, and motivation behind, these requested changes. Plaintiff argues he was ordered to make the changes to fraudulently conceal evidence of fraud, waste, and abuse. According to UPO's version of events, Mack asked Plaintiff to complete UPO's financial statements so that UPO's outside accountants could complete their audit of UPO's finances. It is undisputed that, for whatever reason, Plaintiff refused to comply, and the financial statements were completed without his assistance. There is no evidence that Plaintiff was told he would lose his job if he did not comply with Mack's requests.

On March 31, 2004, Plaintiff filed a discrimination claim with the District of Columbia Office of Human Rights alleging that UPO discriminated against him on the basis of his race (Caucasian), color (lightskinned), gender (male), national origin (Syrian), and religion (Muslim). UPO was aware of the claim and it was discussed by the UPO's Ad Hoc Management Committee on April 20, 2004.

In April 2004, Plaintiff submitted a series of memoranda to UPO management in which he blamed Shears, Mack, and Jennings for the financial mismanagement that had occurred at UPO and denied that he was dragging his feet in producing financial statements. He also attempted to deflect criticism for UPO's problems away from the Finance Office he headed. The memoranda did not reveal any specific instances of fraud or financial mismanagement.

In April 2004, UPO began making preparations to outsource the operations of the Finance Office and begin a reduction-inforce of the Finance Office personnel. On April 15, 2004, UPO's Human Resources Office sent a retention register for all Finance Office personnel to UPO's General Counsel. A few days later, on April 20, 2004, the UPO's Ad Hoc Management Committee voted to recommend to the full UPO Board that the Finance Office be outsourced and that a reduction-in-force be implemented. The Board formally adopted the proposal on April 27, 2004.

Employees in the Finance Office expressed their opposition to the reduction-in-force, and on May 6, 2004, the Board decided to outsource only the management positions within the Finance Office. Following the Board's decision, UPO sent requests for proposals to a number of outside accounting firms. UPO ultimately selected Walker & Company, which proposed replacing the Finance Office's current management with three Walker employees and an Accounting Director drawn from UPO's existing workforce.

UPO's Human Resources Office had an existing reduction-in-force policy that called for employees to be grouped according to job function and pay grade. Those employees with the greatest seniority were ranked at the top of their grouping. UPO claims that it followed this policy in conducting the Finance Office reduction-in-force, and the retention groupings were finalized on May 27, 2004 for the four employees who were subject to the reduction-in-force.

Plaintiff was placed in the same grouping with the Deputy Controller, Davidson Quashie, because they had similar job functions. Quashie had worked for UPO for almost thirty years — compared to approximately six years for Plaintiff — and was therefore ranked ahead of Plaintiff in their grouping. Dana Jones, however, testifying as UPO's corporate designee pursuant to Fed.R.Civ.P. 30(b)(6), stated that Quashie was offered the position because Walker & Company specifically requested him, and not because of the operation of UPO's reduction-in-force policy.

Four existing Finance Office employees were subject to the reduction-in-force: Davidson Quashie, who had the most seniority, was reassigned to the newly created position of Accounting Director; Plaintiff and Facilities Manager Nona McLean were informed on June 2, 2004 that their employment would be terminated as of June 30, 2004; and Senior Auditor William Isaac was offered reassignment to a lower level position, but instead chose to retire.

II. STANDARD OF REVIEW

Summary judgment may be granted "only if' the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c), as amended December 1, 2007; Arrington v. United States, 473 F.3d 329, 333 (D.C.Cir.2006). In other words, the moving party must satisfy two requirements: first, demonstrate that there is no "genuine" factual dispute and,...