D.C. Whistleblower Wins Verdict Against UDC at Trial

October 08, 2009

On October 6, 2009, a jury in the District of Columbia decided in favor of D.C. Whistleblower Colin Browne in the case of Browne v. University of District of Columbia.  In the suit, Colin Browne alleged that his former employer, the University of the District of Columbia (UDC) violated the D.C. Whistleblower Protection Act (WPA) when it retaliated against him for raising concerns that Kevin Naiker, the former Director of UDC’s at-risk program, and his supervisors were intentionally misreporting the retention rate of UDC’s program for at-risk students.  Despite Browne’s repeated disclosures to management, UDC’s Board of Trustees and even to the President of the University, UDC failed to respond.  Browne also discovered that Naiker was unlicensed and did not have a doctorate even though he represented to Browne and others that he was licensed, possessed a doctorate, and would supervise Browne for his licensure. Browne reported Naiker’s misrepresentations of his license status but UDC failed to take action.  Instead, Naiker began retaliating against Browne by “auditing” his files, berating him in front of co-workers, passing him up for promotion and ultimately terminating his employment.

The jury awarded Browne compensatory damages based on its finding that UDC violated the D.C. WPA and was liable for negligent hiring and negligent supervision of Naiker.  The court will hear evidence on Browne’s economic damages claim on October 22, 2009.

R. Scott Oswald and David Scher, Principals at The Employment Law Group® law firm (www.employmentlawgroup.com), represented Mr. Browne and can be reached at 202-331-2806 and 202-261-2802, respectively.

D.C. District Court Rejects Employer’s Attempt to Carve New Loopholes Into Whistleblower Protection Statutes

September 17, 2009

Affirming a jury’s finding that Mohammed Kakeh, a Controller for the United Planning Organization (“UPO”) was terminated for his refusal to engage in fraudulent billing and for providing information to the Office of Inspector General, Judge Kessler rejected several arguments by UPO that would undermine the statutory whistleblower protections under which Kakeh brought his claim, the D.C. Whistleblower Protection Act (“WPA”) and the retaliation provisions of the False Claims Act (“FCA”) and the D.C. False Claims Act (“DCFCA”).
 
Gross Does Not Apply to FCA Retaliation Claims
UPO argued that the Supreme Court’s recent holding in Gross v. FBL Fin. Svcs., Inc., 129 S. Ct. 2343 (2009) requires courts to apply a “but for” causation standard to the retaliation provisions in the Federal and D.C. False Claims Acts.  Judge Kessler held that Gross does not apply to FCA retaliation claims, distinguishing Gross in part on the ground that it is an ADEA case.  The “because of” causation standard in the text of the FCA’s retaliation provision has been construed as a “motivating factor” causation standard, i.e., plaintiff can prevail by demonstrating that the adverse action was motivated, at least in part, by the employee having engaging in protected activity.
 
The “Duty Speech” Doctrine Does Not Apply to FCA Retaliation Claims
UPO argued that Kakeh’s disclosures were not protected because they were made pursuant to his “regular job duties.”  Relying on U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998), which sets forth a favorable standard of protected conduct under the FCA’s retaliation provision, Judge Kessler held that “an employee engages in protected activity when he discloses fraud and corruption, as opposed to making a ‘complaint about mere regulatory compliance’. . . Plaintiff  repeatedly stated that he believed that Defendant’s billing practices were fraudulent and . . . . consistently framed these differences as matters of fraud and ethics, rather than routine disagreements about regulatory compliance. Therefore there was sufficient evidence for a reasonable juror to conclude that Plaintiff was engaging in protected activity.”
 
Plaintiff Need Not Use “Magic Words” to Engage in Protected Conduct
Defendant argued that to be covered by the WPA, Plaintiff’s disclosures must use “the language or terminology of fraud, waste, or misuse.”  Judge Kessler concluded:  “As Plaintiff correctly states, however, Plaintiff was not obligated to use “magic words” to trigger the protections of the WPA. As the WPA indicates, a disclosure is protected if the employee “reasonably believes” that he is revealing a gross misuse of public funds or a violation of a law, rule, regulation, or contract term. D.C. Code 2-223.01(7).”
 
Disclosure of Public Information Can Constitute Protected Conduct
UPO asserted that plaintiff did not disclose to his supervisor any information that “was not already known as [sic] result of the prior year-end audit reports, Mr. Eboda’s preliminary report, the Head Start monitoring review and/or The Washington Post articles.”   Judge Kessler held that “[e]ven if this information was already public and even if Jones already had knowledge of it, Plaintiff was the one responsible for disclosing it in the first instance.”