United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
K. KALLON, UNITED STATES DISTRICT JUDGE
Mooren, Elizabeth Foster, and Katrina Matthews bring this
action against System Studies & Simulation, Inc. (S3),
Jan Smith (S3's owner and CEO), and Gary Rigney (a lawyer
who was in private practice and represented S3 as general
counsel). Doc. 118. Collectively, plaintiffs allege that S3
unlawfully terminated their employment in violation of the
anti-retaliation provisions of the False Claims Act, 31
U.S.C. § 3730(h), as amended, and 42 U.S.C. §§
1981 and 1981a. Doc. 118. Mooren also brings a claim under
the anti-retaliation provisions in 41 C.F.R. 60-1.32, Title
VII of the Civil Rights Act of 1964, the Vietnam Era
Veterans' Readjustment Assistance Act of 1974, Section
503 of the Rehabilitation Act of 1973, and Title I of the
Americans with Disabilities Act of 1990. Finally, plaintiffs
allege violations of the Fair Labor Standards Act, 29 U.S.C.
§ 201 et seq., for failure to pay overtime
(Foster) and for retaliation (Mooren and Matthews).
their separate motions for summary judgment, Rigney asserts
that he is not employee and that the claims against him are
due to be dismissed, and S3 and Smith argue that the
plaintiffs cannot prove that they engaged in a protected
activity or that they suffered an adverse action, and that
Foster and Matthews cannot establish a violation of the FLSA.
Docs. 127; 128 at 10, 25-27. For the reasons stated below,
except for Matthews' Title VII, Section 1981, and FCA
retaliation claims against S3 and Smith (1981 and FCA only),
the motions are due to be granted.
STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure, 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 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 issue of material
fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the
pleadings” to establish that there is a “genuine
issue for trial.” Id. at 324 (citation and
internal 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).
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 255 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual disputes will be
resolved in the non-moving party's favor when sufficient
competent evidence supports the non-moving party's
version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276, 1278 (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) (per curiam) (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 the 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)).
is the owner and CEO of S3. Doc. 137-8 at 4. As a government
contractor, S3 is required to maintain an accounting system
that complies with the Defense Contract Audit Agency. 48
C.F.R. § 16.01-3(a)(3). To meet its obligations, during
the relevant period, S3 used Deltek's Costpoint financial
accounting package and Cognos software package to prepare
human resources reports and to gather information to respond
to various governmental audits. Doc. 131-1 at 11.
hired Mooren as a Senior Accountant in 2007. Doc. 131-5 at
98-100. Mooren's duties included reconciling S3's
invoices, preparing S3's annual incurred cost
submissions, and preparing reports using Costpoint and
Cognos. Doc. 131-1 at 7-8.
hired Foster as a payroll administrator in 2009. Doc. 131-4
at 7. Foster's duties included processing labor and
payroll using Costpoint and paying various state and local
payroll taxes. Id. at 8.
hired Matthews as Human Resources Manager in 2011. Doc. 131-5
at 98- 100. S3 maintains that it hired Matthews based on
Matthews' claimed experience in Equal Employment
Opportunity reporting, and that it learned subsequently that
Matthews lacked this relevant and essential experience.
after Matthews started at ¶ 3, she discovered that the
Office of Federal Contract Compliance (OFCCP) intended to
audit S3's compensation data for its 2010 affirmative
action plan (AAP). Doc. 137-2 at 37. To prepare for the
audit, S3 engaged DYAS, a consulting firm, to aid Matthews in
preparing S3's response. Id. Also, S3 assigned
Foster to assist Matthews in pulling the data from Costpoint
and Cognos to respond to the OFCCP. While gathering the data,
Foster and Matthews discovered purported evidence of pay
discrimination and wrongdoing. First, based on the updates in
the general labor categories for employees with no
corresponding notes in the employee personnel files, Foster
and Matthews concluded that S3 had improperly changed the
labor categories. Doc. 131-4 at 33. Second, Foster and
Matthews also noted purported pay discrepancies between white
males and minorities that Suzanne Ryan, S3's Chief
Financial Officer, purportedly concealed by changing the
general labor category codes. Id. at 42. Based on
their discovery, Foster and Matthews asked Ryan about her
rationale in updating the electronic records without doing so
in the actual personnel files. Id. at 31. After this
conversation, S3 pulled Foster and Matthews from the audit,
and decided that Smith would review all documents before S3
sent them to DYAS for it to use in responding to the OFCCP.
Id. at 31-32; doc. 137-1 at 43.
October 31, 2011, Foster filed a complaint with the Alabama
State Board of Public Accountancy, in which she accused Ryan
of falsifying records at Smith's direction and requested
that the appropriate government agency audit S3. Doc. 137-2
at 10-11. Also, Foster accused Ryan of using others to sit
for the continuing education classes Ryan needed to
re-activate her accounting license. Id.
Ryan did not need an active license to perform her duties for
S3, Smith viewed Foster's complaint as a personal attack
against Ryan because it threatened Ryan's credentials.
Doc. 131-2 at 81. Therefore, Smith decided to investigate the
allegations, and assigned the task to Rigney, an outside
lawyer S3 used as its general counsel. Rigney conducted the
interviews at ¶ 3's headquarters under oath before a
court reporter. Id. at 52-53.
Rigney met with Foster, Foster declined to submit to an
interview without her attorney. Doc. 131-4 at 100.
Consequently, S3 placed Foster on administrative leave until
she retained an attorney. Id. Five days later, after
hiring a lawyer, Foster submitted to an interview during
which she admitted that the documents she sent to the
Accounting Board were not indicative of fraud. Id.
at 13-15. Consequently, on November 21, ...