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Devillo v. Vision Centric, Inc.

United States District Court, N.D. Alabama, Northeastern Division

August 9, 2017




         Shelly O. DeVillo filed this action alleging that her former employer, Vision Centric, Inc., violated the Defense Contractor Whistleblower Protection Act, 10 U.S.C. § 2409 (“WPA”), by discharging her in retaliation for reporting potential violations of the Federal Acquisitions Regulations (“FAR”). See generally doc. 1. Presently before the court is Vision Centric's motion for summary judgment, doc. 22, which is fully briefed, docs. 22; 27; 30, and ripe for review. For the reasons stated below, the motion is due to be granted.


         Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alteration in original). The moving party bears the initial burden of proving the absence of a genuine dispute of material fact. Id. at 323. The burden then shifts to the non-moving party, who is required to go “beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (internal citations and quotation marks omitted). A dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 244 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual dispute will be resolved in the non-moving party's favor when sufficient competent evidence supports that party's version of the disputed facts. But see Pace v. Capobianco, 238 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that a jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).


         DeVillo worked as a project coordinator for Vision Centric, a defense contractor. During the relevant period, Vision Centric worked on a project known as the “Fuel Depot Contract” with the United States Army Corps of Engineers. See doc. 23-1 at 5. DeVillo reported directly to Cynthia Cotton, Vision Centric's Task Order Lead at the “DLA [Defense Logistic Agency] Fuel Group.” Id. at 6.

         At some point after DeVillo started her employment, Bridget Knatt, an administrative assistant with the Army Corps of Engineers, began working with the DLA Fuel Group as the government's onsite representative. See Id. at 11. Knatt engaged in “hands on” supervision of DeVillo's team. See doc. 23-1 at 7 (“Bridget's position was as a direct supervisor for our group.”). DeVillo and Knatt undisputedly engaged in some degree of verbal conflict[2] and disagreed about how best to complete various assignments. On a few occasions, DeVillo complained to Cotton about Knatt “being given the authority to supervise” DeVillo's team, along with complaints about Knatt's personality and supervisory methods. See, e.g., id. at 13, 16. After Cotton failed to forward DeVillo's concerns to Virgil Curry, Vision Centric's President, see doc. 23-1 at 13, DeVillo emailed Curry directly to request a meeting. See docs. 23-4 at 2 (“Mr. Curry, Will you have some free time to meet with me next week. I have some concerns in regards to Vision Centric being successful on this project at the Corps, that I feel you should be aware of. . . . .”); 23-2 at 23.

         Before DeVillo could meet with Curry, DeVillo and Knatt engaged in further disagreements. The final one involved a shouting match that led to Cotton asking DeVillo to meet with her. See doc. 23-1 at 22-23. After DeVillo told Cotton, “We cannot work like this . . . I feel I have no other option but to file a complaint, ” Cotton immediately asked for DeVillo's badges, directed DeVillo to clean out her desk, and instructed DeVillo to meet her at Curry's office. See doc. 23-1 at 23-24. During the meeting, DeVillo told Curry that she believed Knatt's supervision of her team violated the FAR and the subcontract.[3] Curry purportedly responded, “Well, it's obvious that you can't go back to work there, ” and gave DeVillo three options: “resign, be put on administrative leave without pay, or we can terminate you and put it somehow so you can get your unemployment.” See doc. 23-1 at 53. See also doc. 23-2 at 13-14 (Curry's testimony that “[E]ven though . . . we gave [DeVillo] the options, . . . we really didn't want to lose [DeVillo]. And that's the reason why we opted - or I opted to give her a, you know, ‘You can't go back there, but if I can find another spot for you, then I would, as soon as I can. But I don't have one now.'”). The following day, when DeVillo informed Curry that she would not resign, Curry discharged DeVillo.

         III. ANALYSIS

         The WPA prohibits retaliation against employees of defense contractors who report certain types of misconduct. See 10 U.S.C. § 2409(a)(1). As Vision Centric correctly notes, “there is little judicial gloss regarding the proper framework to adjudicate claims under the WPA.” Doc. 22 at 18. Indeed, it appears the Eleventh Circuit has not addressed the issue.[4] Because both parties direct the court to cases out of the Eastern District of Virginia that have applied the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework to WPA retaliation claims, see docs. 22 at 18 & 27 at 25 (citing United States ex rel. Cody v. ManTech Int'l Corp., 207 F.Supp.3d 610 (E.D. Va. 2016); Dillon v. SAIC, Inc., No. 1:12-cv-390, 2013 U.S. Dist. LEXIS 11200 (E.D. Va. Jan. 28, 2013)), the undersigned will join that court in importing the McDonnell Douglas framework for purposes of analyzing DeVillo's claim. Under this framework, DeVillo “must first establish a prima facie case by demonstrating (1) she engaged in statutorily protected activity, (2) she suffered an adverse employment decision, and (3) the decision was causally related to the protected activity.” Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010). If DeVillo can establish a prima facie case, then Vision Centric must articulate a legitimate, nonretaliatory reason for DeVillo's discharge. Finally, if Vision Centric meets this burden, then DeVillo must show pretext to survive summary judgment.

         A. DeVillo Cannot Establish a Prima Facie Case.

         Vision Centric contends that DeVillo cannot establish a prima facie case because Virgil Curry did not know that DeVillo had complained of possible violations of the FAR prior to his decision to separate her from employment with Vision Centric. See doc. 22 at 18-19.[5] DeVillo does not dispute that Curry had no prior knowledge and indeed admits that Curry stated, during the meeting, that it was the “first time” he was “hearing about” any of DeVillo's complaints. See doc. 23-1 at 52.[6] See also Id. at 24 (“When we went in there, I got the impression from Mr. Curry that he knew nothing about this, that Cynthia Cotton had not mentioned any of these issues . . . .”). DeVillo maintains, however, that she complained to Curry about the suspected FAR violations minutes before Curry stated that DeVillo could no longer work on the Fuel Depot Contract and presented her with the three separation options. See Id. at 52. To the extent DeVillo maintains that the complaint about the FAR in the meeting is sufficient, this sequence of events does not aid DeVillo in establishing a prima facie case, because “[anti-]retaliation provisions do not allow employees who are already on thin ice to insulate themselves against termination or discipline by preemptively [engaging in protected expression].” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1270 (11th Cir. 2010). The uncontroverted evidence is that Curry believed, based on what he heard from Cotton and DeVillo, that DeVillo had been “confrontational, ” “disrespectful, ” “aggressive, ” and “unprofessional” with Knatt, Vision Centric's customer's onsite representative. See doc. 23-2 at 13, 17. As Curry put it, “[t]hat's not the way we do business.” Id. at 13. See also Alvarez, 610 F.3d at 1270 (“The record . . . establish[es] that [the employer] had legitimate, non-[retaliatory] reasons to fire [the plaintiff] before she complained, and it remained free to act on those reasons afterward.”). Therefore, where, as here, “something in [DeVillo's] complaint or the manner in which she made it [gave] [the decision maker] an objectively reasonable basis to fear that unless [DeVillo] was fired she would sabotage its operations . . . ., ” see Alvarez, 610 F.3d at 1270, DeVillo cannot establish the necessary causal link to establish a prima facie case.

         Perhaps because DeVillo recognizes that she cannot establish a prima facie case if Curry is the decision maker, DeVillo contends instead that Curry was a mere “cat's paw” for Cotton's decision, acting under “apparent authority, ” to discharge DeVillo. See doc. 27 at 27.[7] In further support of this contention, DeVillo maintains that Cotton knew about DeVillo's protected activity and essentially discharged DeVillo when Cotton asked for DeVillo's badges and directed DeVillo to clear out her desk before the meeting with Curry. See Id. at 27-28. There are several flaws with this contention. First, DeVillo acknowledges that Curry presented her options that included continued employment with Vision Centric, albeit initially in an unpaid capacity until he could send her to another assignment, which belies DeVillo's contention that Curry simply carried out a discharge decision Cotton had purportedly already made before the meeting with Curry. Second, Curry presented DeVillo the various options after he gathered facts in the meeting about the incident with Knatt, which undermines also DeVillo's contention that Curry simply ...

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