Devillo v. Vision Centric Inc

Filing 34

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 08/09/2017. (KBB)

FILED
2017 Aug-09 AM 09:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SHELLY O. DEVILLO,
Plaintiff,

v.
VISION CENTRIC, INC.,
Defendant.

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Civil Action Number
5:15-cv-02211-AKK

MEMORANDUM OPINION
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.
I.

STANDARD OF REVIEW

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
2

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).
II.

FACTUAL BACKGROUND 1

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.
1

See doc. 23-1 at 7

The court has reviewed DeVillo’s affidavit, doc. 27-1, and notes that, despite DeVillo’s
attestation that she told Curry during the April 2, 2015 meeting that “Ms. Knatt could not direct
Vision Centric employees because it was a violation of the FAR,” id. at 3, for the reasons
explained in Part III.A., infra, she still cannot prove that any alleged retaliatory motive was the
but-for cause of her separation. Additionally, even though DeVillo disputes her underlying
conduct that formed the basis for Curry’s opinion that DeVillo had behaved aggressively with
Vision Centric’s customer, see id. at 4, for the reasons stated in Part III.B, infra, these disputes
do not change the ultimate outcome. Accordingly, the motion to strike DeVillo’s affidavit, doc.
31, is MOOT.
3

(“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

2

DeVillo testified that Knatt engaged in conduct such as “[y]elling, slamming the doors,
[and] . . . physically blocking [DeVillo] from leaving the office.” Doc. 23-1 at 22.
4

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
3

DeVillo states that she told Curry during the meeting, “[Knatt] is a government
employee . . . according — per the FAR regulation and spelled out on the contract, no
government employee is being in direct supervision over blah, blah, blah.” Doc. 23-1 at 26.
FAR § 37.104 provides, in relevant part, that “agencies shall not award personal service
contracts unless specifically authorized by statute.” 48 C.F.R. § 37.104(b). See also id. §
37.104(a) (“The Government is normally required to obtain its employees by direct hire under
competitive appointment or other procedures required by the civil service laws. Obtaining
personal services by contract, rather than by direct hire, circumvents those laws unless Congress
has specifically authorized acquisition of the services by contract.”); id. § 37.104(c)(2) (“[T]he
key question always [is]: Will the Government exercise relatively continuous supervision and
control over the contractor personnel performing the contract? . . . [R]elatively continuous
Government supervision of a substantial number of contractor employees would have to be taken
strongly into account.”). The subcontract between Vision Centric and the Army Corps of
Engineers also states that “[t]he [Vision Centric] employee will perform independent of and
without the supervision of any government official.” See docs. 23-1 at 34; 23-2 at 21.
5

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.

4

This court found only one case in which a court in this Circuit discusses the WPA. See
Quinn v. Booz Allen Hamilton, Inc., No. 3:14-cv-111-MCR-EMT, 2014 U.S. Dist. LEXIS
190045, at *5 (N.D. Fla. Dec. 2, 2014). The court’s opinion, however, does not identify the
relevant analytical framework for a WPA retaliation claim.
6

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
5

As Vision Centric points out, DeVillo’s written complaints to the Inspector General’s
office “make no mention of” any report that DeVillo complained to Curry about potential FAR
violations and, “after the Inspector General’s office found that there was no cause for an
investigation, [DeVillo] testified to making such a disclosure during [her termination meeting].”
Doc. 22 at 18–19.
6

Although DeVillo emailed Curry on March 20, 2015 to request a meeting, she stated
only that she “ha[d] some concerns in regards to Vision Centric being successful on this project
at the Corps.” Doc. 23-4 at 2.
7

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,

7

See Crawford v. Carroll, 529 F.3d 961, 979 n.21 (11th Cir. 2008) (“Under a ‘cat’s paw’
theory, a non-decisionmaking employee’s [retaliatory] animus may be imputed to a neutral
8

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 carried out Cotton’s decision.

Finally, even if

DeVillo is correct that Cotton made the decision to discharge her, there is
insufficient evidence in this record to show that DeVillo specifically complained to
Cotton about the suspected FAR violations prior to Cotton asking for DeVillo’s
badges.8

decisionmaker when the decisionmaker has not independently investigated allegations of
misconduct.”).
8

DeVillo testified generally that she complained to Cotton about Knatt “being given the
authority to supervis[e].” Doc. 23-1 at 16. DeVillo also testified that she “took [the] immediate
opportunity to discuss [with Cotton] what had just happened,” following an incident where Knatt
placed her arm in a door threshold in an attempt to prevent DeVillo from leaving the office for
lunch. Id. at 13. DeVillo further testified that she emailed Curry to request a meeting “after the
prior discussions with Cynthia [Cotton] and complaints to Cynthia had gone nowhere,” but does
not specify the substance of those discussions and complaints. See id. at 52. Finally, after
9

To establish a prima facie case of retaliation, an employee must show that
“what he said . . . put [the employer] on notice that he was protesting an illegal
employment practice.” EEOC v. Shoney’s, Inc., 536 F. Supp. 875, 877 (N.D. Ala.
1982). See also Saridakis v. S. Broward Hosp. Dist., 681 F. Supp. 2d 1338, 1353
(S.D. Fla. 2009) (“[A]n employee’s complaint cannot be so vague that an employer
is unaware the complaint concerns illegal [conduct] . . . .”). Although DeVillo
undisputedly complained to Cotton about her personal issues with Knatt, DeVillo
does not explicitly state in her deposition testimony or the declaration she
submitted in opposition to summary judgment that she told Cotton that Knatt’s
supervision of her team violated the FAR or any other law.9 See Saffold v. Special
Counsel, Inc., 147 F. App’x 949, 951 (11th Cir. 2005) (district court did not err in
finding that the plaintiff failed to establish a prima facie case of retaliation when
“almost all of [the plaintiff’s] complaints had no relationship to race” and instead,
“stemmed from a personality conflict [with a coworker]”).

Even DeVillo’s

purported generalized complaints to Cotton about Knatt “being given authority to
supervis[e],” doc. 23-1 at 16, or that she had “no other option but to file a

DeVillo and Knatt engaged in an altercation and Knatt “took off out the door and ran down to
Cynthia Cotton’s office,” DeVillo told Cotton, “We cannot work like this. . . . I feel I have no
other option but to file a complaint.” Id. at 23.
9

In contrast, DeVillo explicitly testified that she told Dennis Bacon, the onsite
Department of Defense representative, that she believed Knatt’s supervision of her team violated
the FAR. See doc. 23-1 at 14. There is no evidence in the record that Bacon shared this
complaint with Cotton or anyone else at Vision Centric.
10

complaint,” id. at 23, are not sufficiently specific to alert Cotton that DeVillo was
alleging that Knatt’s supervisory duties violated the FAR, rather than basic
complaints about a bad supervisor. See Thaxton-Brooks v. Baker, 647 F. App’x
996, 1000 (11th Cir. 2016) (vague comments “about ethical violations and
questionable hiring practices . . . do not constitute protected activities because they
do not relate to racial discrimination or retaliation”). In short, based on this record,
even if DeVillo is correct that Cotton made the discharge decision — a contention
the record does not support, her prima facie claim fails, because she cannot show
that she placed Cotton on notice that she was protesting a violation of the FAR.
B. DeVillo Cannot Rebut Vision Centric’s Legitimate, Nonretaliatory
Reason for her Discharge.
Alternatively, DeVillo’s claim fails because of Curry’s legitimate,
nonretaliatory reasons for discharging DeVillo, including his belief that DeVillo
had behaved unprofessionally or confrontationally toward Vision Centric’s
customer (the Army Corps of Engineers) through her disputes with Knatt.10 See
doc. 22 at 20–22. Curry also was concerned about DeVillo’s apparent class-based
resistance to Knatt’s authority, adding that Curry gave him the impression, through
10

Vision Centric also contends that Curry harbored concerns of workplace violence in
light of what he perceived as escalating conflict between DeVillo and Knatt. See doc. 22 at 20–
22. However, because, as explained infra, DeVillo cannot rebut the other proffered reason, the
court will not address this alternative contention. See Crawford v. City of Fairburn, 482 F.3d
1305, 1308 (11th Cir. 2007) (Where “the employer proffers more than one legitimate,
non[retaliatory] reason, the plaintiff must rebut each of the reasons to survive a motion for
summary judgment.”) (emphasis added).
11

her statement that “Bridget [Knatt] is a GS-5 and she don’t tell me what to do,”
that, as a GS-13, she was “better than” Knatt. Doc. 23-2 at 17, 19. See also doc.
23-1 at 18 (DeVillo’s testimony that “a government GS5 is not a supervisory
position,” and “[i]t does not qualify to supervise anybody, you know, the janitor”).
Because these are reasons that might motivate a reasonable employer, see
Kilgore v. Trussville Dev., L.L.C., 646 F. App’x 765, 774–75 (11th Cir. 2016)
(“[B]eing rude or discourteous towards guests ‘might motivate a reasonable
employer’ engaged primarily in customer service to discharge an employee, even if
she does dispute whether she was in fact rude or discourteous toward guests.”), to
survive summary judgment, DeVillo must demonstrate “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in [Vision
Centric’s] proffered legitimate reasons for its action that a reasonable factfinder
could find them unworthy of credence,” see Combs v. Plantation Patterns,
Meadowcraft, Inc., 106 F.3d 1519, 1538 (11th Cir. 1997). DeVillo attempts to do
so here by “den[ying] telling Curry” that “Knatt couldn’t tell her what to do
‘because she was a GS-5,’” doc. 27 at 30, and insisting that she was not
“aggressive, hostile, insubordinate, or inappropriate to Knatt in any way,” id.
Unfortunately, these contentions are insufficient to prove that Curry did not
reasonably believe that DeVillo had behaved inappropriately toward Knatt.
Moreover, based on the record, Curry formed this belief based on what Cotton told
12

him — i.e., that DeVillo and Knatt had engaged “in an altercation,” doc. 23-2 at
16, and from DeVillo’s statements to Curry, including that Knatt “had no right to
speak to [her] in that manner,” doc. 23-1 at 24. Regardless of whether DeVillo’s
underlying points had merit, Curry believed that Knatt, “as a customer, [had] the
right to say what is acceptable and isn’t acceptable on a product that [she] asked
for.” Doc. 23-2 at 12. See also id. at 13 (“[I]f we have a problem with that
customer, we work it – we don’t get aggressive and become almost confrontational
with the customer. That’s not the protocol we take.”). Based on this evidence,
DeVillo cannot prove that Curry had no reasonable basis for concluding that
DeVillo’s continuing to work on the Fuel Depot Contract would prove detrimental
to his relationship with his client.11

11

To the extent DeVillo contends that the articulated reason for her discharge is
pretextual based on “shifting reasons” for her separation, see doc. 27 at 8 (DeVillo noting that
“Curry and Cotton . . . told the unemployment office that [DeVillo] was terminated because of a
‘reduction in force due to reduction in work.’”), as an initial matter, there is no credible evidence
that anyone at Vision Centric reported to the unemployment office that Vision Centric
discharged DeVillo due to a reduction in force, except for DeVillo’s hearsay that some person
from the unemployment office informed her that Vision Centric had listed “reduction in force
due to reduction in work” as the reason, see doc. 23-1 at 31. Moreover, although Curry testified
that the unemployment paperwork he received from the unemployment office listed “reduction in
force” as the reason, he added that he had no dealings with the unemployment office, and that he
instructed Human Resources Director Octavia Garrett to “leave it like that,” doc. 23-2 at 19, i.e.
to not change the document sent to the company. Significantly, Garrett testified that the
document, in fact, listed “misconduct” as the reason for the separation, that she did not change it,
and more importantly, she read from the document during her deposition and it, in fact, listed
“misconduct” as the reason for DeVillo’s separation. See doc. 23-2 at 14. In other words, the
documentary evidence does not support DeVillo’s contention, if any, that Vision Centric gave a
false reason for her discharge.
13

IV. CONCLUSION
Ultimately, even if Curry or Cotton knew specifically about DeVillo’s FAR
complaints prior to DeVillo’s separation, DeVillo has failed to present evidence
that the alleged retaliatory intent was the but-for cause of her separation. See Univ.
of Tex. Southwestern Med. Ct. v. Nassar, 133 S. Ct. 2517, 2528 (2013) (“Title VII
retaliation claims require proof that the desire to retaliate was the but-for cause of
the challenged employment action.”); id. at 2533 (“This requires proof that the
unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.”) (emphasis added). DeVillo admits
that one of the three options Curry offered was “administrative leave” until Curry
could find another position for DeVillo (i.e., one where she would not have to
work alongside Knatt), doc. 23-1 at 27, and Curry testified that he presented
DeVillo with this option because he “really didn’t want to lose [her],” doc. 23-2 at
13–14. The only reasonable inference, based on this record, is that Curry believed
it was necessary to separate DeVillo and Knatt due to the undisputed personality
conflict, and, because he had no control over Knatt, 12 he chose to address the
situation by removing DeVillo from the Fuel Depot Contract. Even if Curry
reached an erroneous conclusion, because federal courts “do not sit as a super12

As Curry stated in his deposition, “The government is the government. I don’t control
the government. My employee is my responsibility, and how we carry ourselves and behave.”
Doc. 23-2 at 18.
14

personnel department that reexamines an entity’s business decisions,” and, “no
matter how mistaken the firm’s managers,” the federal anti-retaliation statutes
“do[] not interfere,” Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th
Cir. 1991); see also Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452–53 (11th Cir.
1987) (“If the employer fired an employee because it honestly believed that the
employee had violated a company policy, even if it was mistaken in such belief,
the discharge is not ‘because of race’ and the employer has not violated § 1981.”),
no basis exists on this record to sustain DeVillo’s claim. Therefore, because
DeVillo cannot establish a prima facie case or, alternatively, because she cannot
prove that each of Curry’s proffered reasons for her separation were mere pretext
designed to mask retaliation, the motion for summary judgment, doc. 22, is due to
be granted. A separate order will be entered contemporaneously herewith.
DONE the 9th day of August, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

15