Coffman v. Leavenworth, Kansas, City of

Filing 106

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that the City's motion for summary judgment 92 is GRANTED IN PART and DENIED IN PART. The Court grants summary judgment to the City on Counts I, IV, and V. IT IS FURTHER ORDERED that Plaintiff's partial summary judgment 94 is DENIED. Signed by Chief District Judge Julie A Robinson on 3/23/2018. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
THE UNITED STATES OF AMERICA ex rel.
MICHELE COFFMAN,
Plaintiff-Relator,
Case No. 14-2538-JAR
v.
THE CITY OF LEAVENWORTH, KANSAS,
Defendant.

MEMORANDUM AND ORDER
Plaintiff-Relator Michele Coffman filed this qui tam action against Defendant the City of
Leavenworth, Kansas (“the City”), alleging that it committed fraud on the federal government by
making a false claim for reimbursement to the Federal Emergency Management Agency
(“FEMA”) and fraudulently billing federal agencies for sewage service. This matter is before the
Court on the parties’ cross motions for summary judgment (Docs. 92 and 94). The motions are
fully briefed and the Court is prepared to rule. For the reasons stated below, the Court denies
Plaintiff’s motion for partial summary judgment and grants in part the City’s motion for
summary judgment.
I.

SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate if the moving party demonstrates “that there is no

genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.”1
In applying this standard, the Court views the evidence and all reasonable inferences therefrom

1

Fed. R. Civ. P. 56(a).

in the light most favorable to the nonmoving party.2 “There is no genuine [dispute] of material
fact unless the evidence, construed in the light most favorable to the non-moving party, is such
that a reasonable jury could return a verdict for the non-moving party.”3 A fact is “material” if,
under the applicable substantive law, it is “essential to the proper disposition of the claim.”4 A
dispute of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of
fact could resolve the issue either way.”5
The moving party initially must show the absence of a genuine dispute of material fact
and entitlement to judgment as a matter of law.6 In attempting to meet this standard, a movant
who does not bear the ultimate burden of persuasion at trial need not negate the nonmovant’s
claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant
on an essential element of the nonmovant’s claim.7
Once the movant has met the initial burden of showing the absence of a genuine dispute
of material fact, the burden shifts to the nonmoving party to “set forth specific facts showing that
there is a genuine issue for trial.”8 The nonmoving party may not simply rest upon its pleadings
to satisfy its burden.9 Rather, the nonmoving party must “set forth specific facts that would be

2

City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).

3

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 255 (1986)).
4

Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
5

Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at 248).

6

Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002), cert. denied 537 U.S. 816 (2002)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).
7

Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
8

Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
9

Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).

2

admissible in evidence in the event of trial from which a rational trier of fact could find for the
nonmovant.”10 In setting forward these specific facts, the nonmovant must identify the facts “by
reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”11 To
successfully oppose summary judgment, the nonmovant must bring forward more than a mere
scintilla of evidence in support of his position.12 A nonmovant may not create a genuine issue of
material fact with unsupported, conclusory allegations.”13
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it
is an important procedure “designed to secure the just, speedy, and inexpensive determination of
every action.”14 “Where, as here, the parties file cross-motions for summary judgment, [the
Court is] entitled to assume that no evidence needs to be considered other than that filed by the
parties, but summary judgment is nevertheless inappropriate if disputes remain as to material
facts.”15 The Court considers cross-motions separately: the denial of one does not require the
grant of the other.16 “To the extent the cross-motions overlap, however, the Court may address
the legal arguments together.”17 The material facts are undisputed in this case, and the legal
issues asserted in both motions overlap. The Court will therefore address those issues together.

10

Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at
670–71); see Kannady, 590 F.3d at 1169.
11

Adler, 144 F.3d at 671.

12

Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993).

13

Tapia v. City of Albuquerque, 170 F. App’x 529, 533 (10th Cir. 2006).

14

Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

15

James Barlow Family Ltd. P’ship v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th Cir. 1997)
(citation omitted).
16

Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979).

17

Berges v. Standard Ins. Co., 704 F. Supp. 2d 1149, 1155 (D. Kan. 2010) (quotations omitted).

3

II.

UNCONTROVERTED FACTS
The following material facts are either uncontroverted or, if controverted, are construed

in the light most favorable to the nonmovant.
A.

The Parties and Relevant Entities

The City is a municipal government in the State of Kansas. It operates a wastewater
treatment plant (the “WTP”) that provides sewage and wastewater treatment services for its
residents. It also provides wastewater treatment services to the Veterans Administration (“VA”),
the United States Army (“Army”), and the United States Department of Justice Bureau of
Prisons (“BOP”) pursuant to contracts it has with these federal agencies. The City entered into
contracts with the Army and the BOP for sewage service in 1974, and with the VA in 1978.
At all times relevant to this litigation, Charles Klingler was the WTP’s Superintendent,
Michael McDonald was the City Engineer and Director of Public Works (“Public Works
Director”), and Scott Miller was the City Manager. Chad Lough was the WTP’s Assistant
Superintendent from July 22, 2010 until June 20, 2012.
Plaintiff worked at the WTP from 2010 to 2013. She began as a Class I Operator, rose to
the rank of Assistant Superintendent, and resigned after being demoted to a Class II Operator.
She filed this qui tam action, alleging, inter alia, she was constructively discharged after she
began asking questions about billing irregularities.
B.

Regulatory Overview

The Clean Water Act prohibits “the discharge of any pollutant by any person” into waters
of the United States, except in accordance with certain provisions of the Act.18 To comply with

18

33 U.S.C. § 1311(a).

4

the Act, pollutant dischargers can obtain a permit through the National Pollutant Discharge
Elimination System (“NPDES”) permit program, administered by the Environmental Protection
Agency (“EPA”) and authorized states.19 “NPDES permits impose limitations on the discharge
of pollutants, and establish related monitoring and reporting requirements, in order to improve
the cleanliness and safety of the Nation’s waters.”20 “Noncompliance with a permit constitutes a
violation of the Act.”21
The EPA delegated to the Kansas Department of Health and Environment (“KDHE”) the
authority to regulate wastewater discharge in the state of Kansas.22 The KDHE issues the
NPDES permits in Kansas and monitors compliance with the permits.
During the relevant period, the City held two NPDES permits, one effective from 2008
through 2012, and the other effective from January 2013 through 2017. These permits allowed
the City to discharge treated effluent from its wastewater treatment plant into the Missouri River.
Under both NPDES permits, the City was required to report all bypasses to KDHE. A “bypass”
is an intentional or unintentional diversion of a waste stream from any portion of a treatment
facility.
Standard Condition 8 of the City’s 2008 NPDES permit required the City to “at all times
maintain in good working order and efficiently and effectively operate all treatment, collection,
control systems or facilities to achieve compliance with the terms of this permit . . . .”23 Standard
Condition 6 of the 2013 permit required the City to “at all times properly operate and maintain

19

33 U.S.C. § 1342(a)–(b).

20

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174 (2000).

21

Id.; see 40 C.F.R. § 122.41(a).

22

Doc. 95 at 19.

23

Doc. 93-14 at 11.

5

all facilities and systems of treatment and control (and related appurtenances) which are installed
or used by the permittee to achieve compliance with the requirements of this permit and Kansas
and Federal Law.”24
C.

The Broken Sewer Line

On or around August 25, 2010, WTP operators discovered a break in a sewer line that
crosses Five-Mile Creek in front of the WTP, between manholes AAB and ABA (also referred to
as manholes 4284 and 4268). Then Assistant Superintendent Chad Lough reported the break to
KDHE on August 25, 2010. His report stated: “Erosion caused large sections of concrete to slide
down the hill and damage [the] pipe crossing the creek.”25 Under “Date Bypass Ended,” Lough
marked “N/A.”26
In response to the break, Superintendent Klingler directed operators to place an inflatable
plug into the pipe inlet at Manhole AAB to stop backflow from the manhole from entering the
line and escaping into the creek. The inflatable plug ruptured at some point and was replaced by
sandbags.
On August 27, 2010, EPA representative Mike Boeglin called Public Works Director
McDonald to discuss a citizen complaint about the broken line. McDonald told him the City was
aware of the break, had reported it to KDHE, and had already undertaken efforts to plug the line.
On August 28, 2010, KDHE environmental scientist Vic Montgomery met with
Superintendent Klingler at the WTP to inspect the broken pipe. Montgomery directed Klingler
to discharge treated effluent from the final clarifiers into the creek to improve the smell and color

24

Id.at 21; Doc. 95-7 at 10.

25

Doc. 93-3 at 4.

26

Id.

6

of the creek. Montgomery considered the effluent discharge not a violation of the City’s NPDES
permit.
On or about October 8, 2010, KDHE district engineer Helen Holm inspected the WTP for
compliance with the City’s NPDES permit.27 In her inspection report, she indicated, in pertinent
part, that: 1) the laboratory data indicated compliance with permit effluent limitations since the
last inspection, and 2) the City had reported all bypasses properly.28
On November 17, 2010, KDHE representative Chris Seeds sent Assistant Superintendent
Lough an e-mail asking about the status of the broken line. Lough responded:
The bypass report dated . . . 8/25/10 was for the creek crossing
located at the east side of our facility. This bypass was not a
planned bypass. The pipe that crosses the creek is damaged. Flow
from that line upstream is minimal (only one business on that
service and it’s an asphalt production plant). On our side of the
creek[,] there are 35-50 sand bags in place in front of the line
minimizing flow back towards the creek. This project is currently
under review for repair and or replacement of the pipe that crosses
the creek.29
WTP operators were unable to successfully “camera” the broken line to determine the
exact location of the break until January 25, 2011. In February 2011, the City contracted with
Water Resource Solutions to prepare a design study for use in the project to repair the broken
line and re-stabilize the creek bank.
In April 2011, the City received notice from the Army Corps of Engineers that it would
experience flooding. The City undertook certain mitigation measures in anticipation of the flood
to prevent damage to the WTP.

27

Doc. 93-8 at 15, Sections VII and IX.

28

Id. at 19.

29

Doc. 93-3 at 7.

7

On June 7, 2011, Seeds asked Lough if the broken line had been repaired. Lough
responded on June 13, “This repair has not been completed. I do believe that there are some
proposals/plans available from the Engineering Dept. or Charles Klingler . . . .”30
On November 17, 2011, Linaweaver Construction capped the broken line by filling it
with concrete. The work to cap the pipe took “a day or two.”31 Following this repair, the sewer
line no longer leaked. The City notified KDHE the same day that the bypass had ended. The
City paid $7,021.00 for the repair.
D.

Submissions to FEMA

From May 19, 2011 to June 14, 2011, the Missouri River flooded due to record snow and
rainfall.32 On September 23, 2011, FEMA declared the 2011 Missouri River flood to be a
“Major Disaster,” and designated the incident as “Kansas Flooding (DR-4035).”33 Following a
natural disaster, FEMA representatives work with cities to prepare a standardized “Project
Worksheet” (“PW”) document that FEMA prepares as part of a formal request for
reimbursements.34
Kansas Department of Emergency Management (“KDEM”) project specialist Les Money
acted as the liaison between the City and FEMA, and was responsible for gathering the
information compiled by FEMA for the PW. On December 11, 2011, FEMA representative
Thomas Montgomery sent Les Money an email advising of his decision to include the broken
sewer line in the PW and asked for: 1) a description of work completed; 2) copies of invoices for

30

Id. at 10.

31

Doc. 95 at 10, ¶ 40; Doc. 97, ¶ 40 (“Uncontroverted for purposes of this motion”).

32

Doc. 93-10 at 5; https://en.wikipedia.org/wiki/2011_Missouri_River_Flood (February 28, 2018).

33

Doc. 91 at 4, Pretrial Order, Stipulations ¶ 15.

34

Doc. 98 at 9, ¶ 38.

8

work completed; 3) manhole numbers at each end of the break; 4) size of the damaged pipe;
5) length of pipe to replace; 6) brief description of repair/replacement process; and 7) estimated
cost of repair/replacement.35 Montgomery’s request was forwarded to Superintendent
McDonald, who responded via email on December 12, 2011.
City Finance Director Dan Williamson decided not to submit a claim for repairs to the
broken sewer pipe because that project had been on the City’s improvement list prior to the
flood. Ultimately, on December 13, 2011, the City submitted a claim to FEMA requesting
$22,966.73, which was the cost of: 1) removing debris in the bar screen building; 2) removing
excessive grit in the clarification chamber building; and 3) unclogging sewer lines in
approximately 20 locations.36
E.

Plant Maintenance

The WTP consists of primary clarifiers, trickling filters, final clarifiers, holding tanks for
sludge, a belt press to dewater sludge, and a UV treatment building. The WTP utilizes three
large vertical towers called “trickling filters,” which contain microorganisms utilized in the
wastewater treatment process. At some point in 2012, operators discovered that the bearings in
Trickling Filters #1 and #2 were deteriorating, which periodically caused the distributor arms to
stop turning. This, in turn, periodically caused water from inside the filters to escape through the
bottom air vent, which was a bypass event.
Trickling Filter #1 was eventually taken out of service because parts necessary to repair it
were unavailable. The WTP placed Trickling Filter #2 on an aggressive maintenance schedule.
Following implementation of the maintenance schedule in July 2013, there were no further

35

Doc. 93-11 at 1.

36

Doc. 93-10 at 5.

9

bypasses. KDHE district engineer Helen Holm made specific note of the issues with Trickling
Filters #1 and #2 in her December 2014 inspection report, and determined that because the City
had properly notified KDHE of the issues and was attempting to remedy them, the City was not
in violation of Standard Condition 6 of its NPDES permit. Plaintiff’s expert disagrees with
Holm; he believes the City violated its 2008 permit any time a piece of equipment used in the
treatment process malfunctioned and was unable to be fixed within a matter of a few days.37
The WTP’s holding tank mixers also experienced mechanical issues. Without
operational mixers, the heaviest parts of the sludge sat at the bottom of the holding tank, while
the lighter parts remained at the top. Consequently, sludge being processed by the belt press was
inconsistent. After October 2013, the City replaced the mechanical mixers with an air bubbling
system. The broken mixers had no effect on the City’s compliance with its NPDES permit.
Plaintiff’s expert opines that the City’s failure to promptly repair or replace the mixers
constituted a violation of the 2008 and 2013 permits.
F.

The Vactor Truck and Improper Dumping

The City owns a large industrial truck equipped with a high-pressure water jet cleaning
system, as well as a vacuum system for clearing out objects (the “Vactor Truck”). When the
vacuum component was used, operators drained some, but not all, of the truck’s liquid contents
into a manhole inside the plant for processing. From approximately 2007 to some point in 2012,
operators deposited the solids and whatever liquid remained in the truck on the ground in one of
two areas behind the gates of the WTP. Solids from the truck typically consisted of items such
as personal hygiene products, plastic razors, gravel, rocks, and raw septage.

37

Doc. 98 at 13, ¶ 13.

10

The area where solids were dumped was not enclosed, was not a lined pit, and contained
no warning signs. The City never performed any laboratory analysis on the dumped material.
The City did not inform the Army, the VA, or the BOP of its practice of dumping materials from
the Vactor truck.
At some point, WTP operator Kris Bennetts called KDHE with concerns about the above
procedure. According to Bennetts, KDHE’s response was that the procedure he described was
“no big deal” and was “an affirmation of this is not as big as what I’m thinking it is.”38
KDHE inspector Vic Montgomery performed a plant inspection on April 4, 2012. He
observed operators dump the contents of the Vactor truck on the ground, before being removed.
In his inspection report, Montgomery noted: “Vac trucks are dewater[ed] then the septage is
dumped on the ground to be processed, please make sure to check that water does not migrate
from the area.”39 In a letter accompanying the report, Montgomery clarified, “Solids [from the
Vactor truck] are being collected and handled properly but please make sure any excess water
does not migrate from the site.”40
Public Works Director McDonald first learned about the operators’ practice of depositing
the solids from the Vactor truck on the ground around the time he reviewed KDHE’s 2012
inspection report. During the preliminary treatment process, wastewater passes through a large
grate, referred to as a bar screen, which is designed to catch large items such as plastics or rags.
These items, referred to as “screenings,” are then typically placed into a bin to dry, before being
sent to a landfill. Scott Huismann, Plaintiff’s expert, has expressed the opinion that the contents

38

Doc. 93-7, Dep. of Bennetts, 140:6-17.

39

Doc. 93-6 at 13.

40

Doc. 93-6 at 5.

11

of the Vactor truck were “sewage sludge,” which, under 40 C.F.R. Part 503, was allowed to be
dumped on the ground for up to two years without restriction or control. Although Huismann
did not visit the site where the Vactor truck solids were allegedly dumped, he believes some of
the material deposited on the ground may still remain there, in violation of 40 C.F.R. Part 503.
Huismann admitted the distinction between preliminary treatment and removal of the Vactor
truck solids was confusing and unclear, and could lead an operator to mistakenly equating the
two.
G.

Plaintiff’s Employment

Plaintiff began working at the WTP on April 29, 2010, as a Wastewater Treatment Class
I Operator. Superintendent Klingler exempted Plaintiff from carrying an “on call” pager and
sent her to training. She became a Level II Operator on June 23, 2011. In January 2012, she was
appointed to be the project representative for the construction of the UV Building. In 2012, the
City selected her as the “Employee of the Second Quarter.” In December 2012, she received the
City’s award for “Employee of the Year.”
On August 16, 2012, Plaintiff was promoted to Assistant Superintendent. Upon her
promotion, Klingler became her direct supervisor. She was also informed that she was required
to pass the KDHE Class IV certification exam within twelve months, and that her failure to do so
would result in demotion or termination. KDHE’s Class IV certification exam had a pass rate of
approximately 33 percent at that time.
On March 26, 2013, City Manager Miller met with Plaintiff to discuss concerns raised by
James Bennetts, a WTP operator, who had just resigned and raised concerns about operations at
the WTP and unfair treatment by Klingler. The parties disagree about what was discussed at this
meeting. Plaintiff says she told Miller that she believed the City had submitted a fraudulent

12

claim to FEMA regarding the broken Pipe. Miller says she did not talk to him about a fraudulent
claim to FEMA. He says their discussion was about Klingler’s management style and operation
issues at the plant.
On April 1 and 2, 2013, Miller visited the plant, talked to Klingler, and interviewed
several other employees. On April 3, 2013, Klingler told Plaintiff that he would be busy with
other things and she should contact him about plant-related matters by email.
On April 16, 2013, Klingler wrote a memo to Plaintiff about four issues: 1) the failure to
follow bypass guidelines on April 1, 2013; 2) a request for a timeline regarding a complaint call;
3) new trickling filter procedures; and 4) a request for documentation for sick leave taken on
March 18 through March 20, 2013 (the “Memo”).41 Plaintiff responded to the memorandum by
email on April 18, 2013. She addressed each issue and concluded with the following sentence,
“I feel the Memo you gave me on 4/16/2013 is not justified and I will be contacting your
Supervisor, Mr. Bob Patzwald, to discuss this issue with him.”42
On April 18, 2013, Public Works Director McDonald met with Klingler to address
concerns about his management style. McDonald directed Klingler to focus on listening to staff,
communicating his expectations clearly, and allowing staff to do their jobs.
On April 19, 2013, Plaintiff met with Klingler and McDonald to discuss her response.
McDonald told Coffman he had assisted Klingler in drafting the memo, and reiterated it had been
sent for training. Plaintiff responded that she felt the memo had been sent as retaliation for

41

Doc. 93-17 at 12. In her response to the City’s motion for summary judgment, Plaintiff described
Klingler’s memorandum dated April 16, 2013, as “a ‘training’ memorandum filled with minor nitpicky ‘training’
items.” Doc. 98 at 57.
42

Doc. 93-18 at 3.

13

meeting with Miller, which McDonald denied. The parties dispute what was said at the meeting.
The meeting ended with Plaintiff asking to speak with City Manager Miller.
After this meeting, Plaintiff began receiving weekly “To Do” lists from Klingler, which
contained tasks to be completed in addition to everyday operations. The items on the “To Do”
lists fell within the scope of Plaintiff’s job duties, but Plaintiff believes the lists included
unnecessary work because Klingler never followed up on them. She also believes this was a
scheme to cause her to work long hours to prevent her from studying and passing the Class IV
exam.
On June 12, 2013, Plaintiff met with Klingler and Lona Lanter, the Director of Human
Resources (“HR Director”), regarding what would happen if she failed to pass the Class IV
exam. Plaintiff had taken the Class IV exam in December 2012 and on May 9, 2013, failing both
times. Lanter suggested Plaintiff take the Class III test as a “fall back.” Plaintiff rebuffed the
idea. She complained of retaliation and explained that her increased workload, which was filled
with meaningless tasks, made it impossible for her to study for either tests. The City agreed to
extend the deadline from August 16, 2013 to August 29, 2013, which would allow her to take the
test scheduled on the 29th if necessary.
On August 2, 2013, Plaintiff took the Class IV exam again and failed. On August 8, she
asked Klingler to extend the Class IV certification deadline from 12 months to 18 months.43 On
August 16, Klingler denied the request, stating the City had already agreed to extend the deadline
to the end of August 2013.44

43

Doc. 93-19 at 1.

44

Id. at 2.

14

On August 16, 2013, Klingler also presented Plaintiff with her first performance
evaluation as assistant superintendent. On a scale from 0 (lowest) to 2 (highest), Klingler rated
Plaintiff’s performance as a “1,” defined to mean “[a] totally competent employee,” “[a] good
steady contributor,” and “[a]n employee that completes all stated job requirements in a timely
and efficient manner” on each of the ten categories of review.45 Based on her evaluation,
Coffman received a two percent raise, the highest performance-based raise during her tenure
with the City.
Plaintiff appealed Klingler’s denial of her requested extension and her evaluation scores
to Public Works Director McDonald and HR Director Lanter. Both McDonald and Lanter
affirmed Klingler’s decisions. McDonald explained that it was the City’s policy not to extend
certification deadlines other than for a few days to meet a testing schedule, which was exactly
what the City did when it extended her deadline from August 16 to August 29.46 As for her
evaluation scores, McDonald concluded that he had no reason to change them because: 1) a
rating of 2 required additional documentation, and 2) expectations for a management position are
different than for a regular worker.47 Lanter stated that Klingler’s denial of her extension was “a
consistent application of the related criteria used for all employees within [the plant],” and that
performance evaluations were not grievable.48
On September 3, 2013, KDHE notified the City and Plaintiff that she had failed the
August 29th Class IV exam. On September 12, 2013, the City notified Plaintiff she had been

45

Doc. 93-22.

46

Doc. 93-19 at 5.

47

Id. at 5–6.

48

Doc. 93-19 at 8.

15

demoted to Operator II for failing to pass her KDHE Class IV certification exam within 12
months of her promotion. Plaintiff submitted her letter of resignation on October 4, 2013.
H.

Billing to Federal Agencies

Ruby Maline is the City’s Finance Director. Effective July 1, 1995, the City renewed its
1974 contract with the Army for the provision of sewage service, which is still in effect. The
“Sewage Service Specifications” section of the contract states:
SERVICE TO BE RENDERED. The [City] shall furnish a
sanitary sewer connection and sanitary sewage service as required
by the Government and shall receive, carry, treat, and dispose of
all sanitary sewage originating at the project in such amounts as
the Government desires to release into Contractor’s sewer system
and in a manner and by such means as will constitute no hazard to
the public health. The [City] shall operate [its] sewage disposal
and treatment facilities in conformity with applicable laws, rules,
and regulations promulgated by Federal, state and local
authorities.49
Each month from at least 2008 to present, the City has sent the Army an invoice for sewage
service. The amount billed is based on three components: (a) annual operating and maintenance
expenses; (b) overhead; and (c) reserves for repair and replacement.
The “annual operating and maintenance expenses” component has three sub-parts: (1) the
total budget for operating the treatment plant for the current year, multiplied by the Army’s
percentage of plant flow; (2) the total budget for operating the collection system for the current
year, multiplied by a percentage specified by the contract; and (3) adjustments to account for the
difference between the Army’s share of the prior year’s budget and the actual amount spent
during the prior year to operate the treatment plant and collection system, which is then prorated
over 12 months. Because the Army receives a credit for any amount budgeted but not spent, the

49

Doc. 93-28 at 16; Doc. 98 at 31–32.

16

City does not retain money from the Army that is budgeted for the operation of the treatment
plant or collection system, but not spent. The “overhead” component of the bill is calculated,
pursuant to the contract, at 13 percent of the Army’s annual charge for budgeted treatment plant
and collection system expenses, subject to the same adjustment to account for the difference
between budgeted and actual costs for the prior year, and then prorated over 12 months. The
“reserves for repair and replacement” component is calculated at 21 percent of the replacement
value of the treatment plant, divided by a projected useful life of 25 years and then prorated over
12 months.
On August 1, 1978, the City entered into a contract with the VA to provide it sewage
services, which is still in effect today. An addendum to the VA contract states that the City
agrees to comply with Section 308 of the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.) “relating to inspection, monitoring, entry, reports, and information, as well as other
requirements specified in . . . section 308 of . . . the Water Act . . . and all regulations and
guidelines issued thereunder before the award of this contract.” However, the section is
preceded by the following language:
(Applicable only if the contract exceeds $100,000 or the contracting officer has
determined that orders under an indefinite quantity contract in any one year will
exceed $100,000, or a facility to be used has been subject of a conviction under
the Clean Air Act (42 U.S. 1857c-8(c) (1) or the Federal Water Pollution Control
Act (33 U.S.C. 1319(c)) and is listed by the EPA, or the contract is not otherwise
exempt.)50
On November 15, 1974, the City entered into a contract with the BOP to provide it
sewage services, which is still in effect today. The VA and BOP’s monthly bills are calculated
as a percentage of the total actual operating expenses, derived from each entity’s flow readings.

50

Doc. 93-32 at 11; Doc. 98 at 33–34.

17

Each month from 2008 to present, the Army, VA, and BOP have paid their monthly
sewage bills in full. At no time from 2008 to present have any of these federal agencies declined
to pay the full amount billed. At no point from 2010 to 2014 has the Army, VA, or BOP ever
requested or performed an audit of the WTP to ensure the City was operating in conformity with
its NPDES permit.
III.

DISCUSSION
The City seeks summary judgment on all five counts: Count I, violations of the Federal

False Claims Act (“FCA”); Count II, violations of the anti-retaliation provision of the FCA;
Count III, Whistleblower Retaliation under Kansas common law; Count IV, Common Law
Retaliatory Discharge; and Count V, Negligent Infliction of Emotional Distress.51 Plaintiff seeks
summary judgment as to Count I only. The Court discusses each count separately.
A.

Count I – False Claims to Government Agencies

The FCA “covers all fraudulent attempts to cause the government to pay out sums of
money.”52 The FCA’s qui tam provisions permit a private plaintiff to bring civil actions on
behalf of the government.53 And while the government “may intervene and take over a private
plaintiff’s case, it often declines to do so.”54 If the government declines to intervene, a private
plaintiff may proceed as a relator on behalf of the government.55 A relator is entitled to a portion
of any civil penalty and damages awarded.56

51

Doc. 91, Pretrial Order at 2–3.

52

United States ex rel. Boothe v. Sun Healthcare Grp., Inc., 496 F.3d 1169, 1172 (10th Cir. 2007).

53

31 U.S.C. § 3730(b).

54

United States ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163, 1167 (10th Cir. 2010).

55

31 U.S.C. § 3730(d)(2).

56

Id.

18

The FCA, in pertinent part, makes any person liable who “knowingly presents, or causes
to be presented, a false or fraudulent claim for approval,”57 or who “knowingly makes, uses, or
causes to be made or used, a false record or statement material to a false or fraudulent claim.”58
Knowledge or scienter is an essential element for all FCA violations. The FCA defines
“knowing” and “knowingly” to mean “that a person, with respect to information—(i) has actual
knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the
information; or (iii) acts in reckless disregard of the truth or falsity of the information, and no
proof of specific intent to defraud is required.”59 “For a statement to be knowingly false, it must
be more than merely an innocent mistake or misinterpretation of a regulatory requirement.”60
The FCA recognizes two types of actionable claims—factually
false claims and legally false claims. In a run-of-the-mill
“factually false” case, proving falsehood is relatively
straightforward: A relator must generally show that the
government payee has submitted “an incorrect description of goods
or services provided or a request for reimbursement for goods or
services never provided.” [Mikes v. Straus, 274 F.3d 687, 97 (2nd
Cir. 2001)]. By contrast, in a claim based on an alleged legal
falsehood, the relator must demonstrate that the defendant has
“certifie[d] compliance with a statute or regulation as a condition
to government payment,” yet knowingly failed to comply with
such statute or regulation. Id. 61
Materiality is a requisite element for factually false claims under 31 U.S.C.
§ 3729(a)(1)(B) and false certification claims.62 The FCA defines materiality to include facts

57

31 U.S.C. § 3729(a)(1)(A).

58

31 U.S.C. § 3729(a)(1)(B).

59

31 U.S.C. § 3729(b).

60

United States ex rel. Trim v. McKean, 31 F. Supp. 2d 1308, 1315 (W.D. Okla. 1998).

61

United States ex rel. Conner v. Salina Reg’l Health Ctr., 543 F.3d 1211, 1217 (10th Cir. 2008).

62

31 U.S.C. § 3729(a)(1)(B); Conner, 543 F.3d at 1219, n.6 (explicitly adopting a materiality requirement
in the context of false certification claims but declining to address whether materiality is an element of other theories
of FCA liability).

19

that have “a natural tendency to influence, or be capable of influencing, the payment or receipt of
money or property.”63 “The materiality standard is demanding.”64
Count I alleges the City submitted false claims for two types of payment: 1) a claim for
flood damages to FEMA, and 2) monthly bills for wastewater services to the VA, Army, and
BOP. The FEMA-claim falls under the factually false theory, while the monthly wastewater bills
present a legal falsity.65
False Claim to FEMA
Plaintiff asserts the City submitted two documents to FEMA that contained false
statements: 1) an email dated December 12, 2011 (the “Email”), and 2) the Project Worksheet.
a)

The Email

Plaintiff claims the Email violated 31 U.S.C. § 3729(a)(1)(B) because it contains a false
explanation regarding the source of the damage to the Pipe.66 She argues that by providing the
costs to repair the Pipe and stabilize the river bank, the Email supported the false statement that
the Flood broke the Pipe. The Court disagrees.
The Email, in pertinent part, states:
The 10” sewerline between Manholes 4284 and 4268 crossed Five
Mile Creek in a concrete encased structure. The creek had eroded
sufficiently that the structure had become a “waterfall[.]” City
staff had explored a variety of repair strategies that would have
been programmed into a future CIP [capital improvements project]
program.
The 2011 Flood submerged this structure and subjected it to
unusual forces. The structure became unstable and essentially

63

31 U.S.C. § 3729(b)(4).

64

Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2003 (2016).

65

See Conner, 543 F.3d at 1217.

66

Doc. 95 at 29–30.

20

“broke” at the outside of MH 4268. This allowed substantial
inflow to enter the plant, and created other operational difficulties.
Efforts to stop[] the flow from inside MH 4268 proved only
marginally effective. Once the water receded[,] a contract was
issued to Linaweaver Construction to remove the broken sewer
crossing and seal the two manholes. This work cost $7021 on PO
4478.
This solves the immediate concerns over inflow. There are a very
small number of users upstream of MH 4284, and the City will use
the vacuum truck periodically to remove any sewage generated
until this is repaired.
Staff has had plans prepared for a replacement of the sewer and
mitigation of the conditions that created the failure. The estimated
cost for replacement of the sewer only is $358,000. There is an
additional cost of $121,000 related to bank stabilization up and
downstream of the crossing that prevents the severe erosion that
has occurred.
A spreadsheet with the estimates is attached. The estimates are
based on a concept developed in early 2011 as part of the CIP
planning.67
Plaintiff’s construction of the Email is untenable because she ignores the first paragraph and
construes the second paragraph in a vacuum. The first paragraph explained that erosion caused
the Pipe to become a waterfall; in other words, erosion had damaged the Pipe. The second
paragraph explained the effects of the Flood to the already damaged Pipe—it broke at the outside
of MH 4268, which allowed substantial water to enter the plant. These paragraphs thus reported
two sources of damage to the Pipe, creek erosion and the Flood.
Although the Email did not expressly state the Pipe was damaged prior to the Flood, the
fifth paragraph explained that the estimates to repair the erosion damage were obtained in early
2011, many months before the Flood triggered FEMA funding. This explanation, combined with

67

Doc. 93-12 at 1.

21

the first two paragraphs, show a lack of intent to hide the fact that the Pipe had pre-Flood
damage.
Plaintiff points to McDonald’s testimony that he could not recall when or who from the
City had informed FEMA about pre-Flood damage to the Pipe to suggest a genuine issue of fact
exists regarding whether the City had informed FEMA of the pre-existing damage to the Pipe.
The Email, however, establishes that the City informed FEMA of the erosion damage prior to
submitting its claim.
The Court rejects Plaintiff’s argument that providing estimates to repair the Pipe and
stabilize the river bank was effectively engaging in a false communication to influence FEMA’s
decision to pay. Plaintiff conveniently ignores that the City did not submit a claim for these
repairs. Additionally, Plaintiff offers no evidence that the Pipe repair estimates contained any
false information. Nor does she provide evidence suggesting that the Pipe repair estimates were
material to payment for damages from floodwater inflow.68 The Court fails to see how the Pipe
repair estimates would influence FEMA’s decision to reimburse the City for the costs of
removing debris in the bar screen building, removing excessive grit in the clarification chamber
building, and unclogging approximately 20 sewer lines.69 These facts make this argument a non
sequitur. The Court concludes no reasonable jury could find falsity, materiality, or the requisite
scienter with respect to the Email and its attachment.

68
Conner, 543 F.3d at 1219 (“the false statement must be material to the government’s decision to pay out
moneys to the claimant”); U.S. ex rel. Smith v. Boeing Co., No. CIV.A. 05-1073-MLB, 2014 WL 5025782, at *26
(D. Kan. Oct. 8, 2014) (false claim allegations require a showing of materiality, which turns on whether a statement
would have a natural tendency to influence or is capable of influencing the agency’s payment decision), aff’d sub
nom. United States v. The Boeing Co., 825 F.3d 1138 (10th Cir. 2016).
69

Doc. 95-15 at 2.

22

b)

The Project Worksheet

On December 13, 2011, the City submitted a claim to FEMA in Project Worksheet #90
(“PW90”), requesting $22,966.73 for damages due to flood water entering the WTP.70 Plaintiff
claims PW90 constitutes a false claim in two ways: 1) it sought reimbursement for damages
caused, at least in part, by a known pre-existing condition; and 2) it concealed the failure to
undertake proper mitigation measures in anticipation of the Flood.71 The Court finds these
arguments unpersuasive.
First, Plaintiff offers no evidence to suggest that FEMA requires the Flood be the sole
cause for the damage. As discussed above, the Email establishes that the City informed FEMA
of the pre-Flood damage to the Pipe. FEMA representative Tom Montgomery even suggested
that the broken sewer line near the treatment be included in the PW.72 The uncontroverted
evidence is that floodwater entered the WTP from numerous sources, not just the broken Pipe.
Plaintiff adduces no evidence that FEMA was unaware of this fact. Nor is there evidence that
FEMA required the City to analyze and determine the sources of water that damaged the Plant.
These facts suggest that FEMA did not consider it material that floodwaters had entered the Plant
from a pipe that had pre-Flood damage.
Second, the Court fails to see how PW90 concealed the City’s failure to undertake proper
mitigation measures in anticipation of the Flood. The worksheet does not ask for information
regarding mitigation efforts. There is also no evidence that FEMA requested this information

70

Doc. 93-10 at 5.

71

Doc. 95 at 31.

72
Doc. 93-11 at 1 (“Jim and I have discussed the broken sewer line near the treatment plan and have
decided to include it in the PW.”).

23

from the City. These facts suggest that FEMA did not consider it material that floodwaters had
entered the Plant from a pipe that had pre-Flood damage.
Third, it is undisputed that the broken Pipe caused no damage to the Bar Screen Building,
the Clarification Building, and the sewer lines that required unclogging before the Flood. This
fact suggests that the temporary measure of sandbags had done its job until it had to face the
Flood’s overwhelming force. Additionally, there is no evidence that FEMA asked the City to
analyze the extent of damage to the WTP had the Pipe been capped with concrete prior to the
Flood. These facts suggest that FEMA did not consider the efforts to repair the broken Pipe prior
to the Flood material to its decision to pay PW90.
Fourth, Plaintiff cites 44 C.F.R. § 206.48 for the proposition that FEMA considers the
City’s mitigation measures material in deciding whether to approve payment of PW90. But that
regulation sets forth the factors to consider when evaluating a Governor’s request for a major
disaster declaration. It does not set out FEMA’s standards for approving claims for disaster
relief. Plaintiff’s reliance upon this regulation is thus misplaced.
In sum, the summary judgment evidence, even when viewed in the light most favorable
to Plaintiff, fails to demonstrate that the City submitted a false claim to FEMA. Accordingly, the
Court grants summary judgment to the City on the false-FEMA claim.
Implied False Certifications in Sewage Bills to the Army, the VA, and the
BOP
In Universal Health Services, Inc. v. United States ex rel. Escobar,73 the Supreme Court
held that “[w]hen . . . a defendant makes representations in submitting a claim but omits its
violations of statutory, regulatory, or contractual requirements, those omissions can be a basis for

73

136 S. Ct. 1989 (2016).

24

liability if they render the defendant’s representations misleading with respect to the goods or
services provided.”74 The Supreme Court made clear that courts should continue to police
expansive implied certification theories “through strict enforcement of the Act’s materiality and
scienter requirements.”75 In particular, “a misrepresentation about compliance with a statutory,
regulatory, or contractual requirement must be material to the Government’s payment decision in
order to be actionable under the False Claims Act.”76
Plaintiff claims the City’s monthly sewage bill to the Army, the VA, and the BOP
impliedly certified that it had complied with all environmental laws as required by its contracts
with these agencies. According to Plaintiff, “the City has committed scores of environmental
violations during the [applicable] period” contrary to these certifications.77 Primarily, Plaintiff
claims that in violation of the Clean Water Act, its permits, and/or the Resource Conservation
and Recovery Act (“RCRA”), the City discharged raw sewage into Five Mile Creek and
improperly dumped septage on the ground near the WTP.78 Plaintiff urges the Court to grant
summary judgment with respect to the occurrence of these violations, but leave the determination
as to the extent of these violations for trial.
The City argues the monthly sewer bills do not support an implied false certification
claim because: 1) none of the underlying service contracts state compliance with the CWA or
any other environmental law was a prerequisite to payment; and 2) the bills do not contain any

74

Id. at 1999.

75

Id. at 2002 (quoting United States v. Science Applications Int’l Corp., 626 F.3d 1257, 1270 (C.A.D.C.

76

Id.

77

Doc. 95 at 18.

78

Id.

2010)).

25

misleading half-truths.79 The City argues it is entitled to summary judgment on these claims
because Plaintiff cannot establish that the implied certifications were material for payment or
that the City submitted these bills with the requisite scienter. The Court agrees.
In Escobar, the Supreme Court clarified how the materiality requirement should be
enforced:
The materiality standard is demanding. The False Claims Act is
not “an all-purpose antifraud statute,” Allison Engine, 553 U.S., at
672, 128 S. Ct. 2123[,] or a vehicle for punishing garden-variety
breaches of contract or regulatory violations. A misrepresentation
cannot be deemed material merely because the Government
designates compliance with a particular statutory, regulatory, or
contractual requirement as a condition of payment. Nor is it
sufficient for a finding of materiality that the Government would
have the option to decline to pay if it knew of the defendant’s
noncompliance. Materiality, in addition, cannot be found where
noncompliance is minor or insubstantial. [Citations omitted]
In sum, when evaluating materiality under the False Claims Act,
the Government’s decision to expressly identify a provision as a
condition of payment is relevant, but not automatically dispositive.
Likewise, proof of materiality can include, but is not necessarily
limited to, evidence that the defendant knows that the Government
consistently refuses to pay claims in the mine run of cases based on
noncompliance with the particular statutory, regulatory, or
contractual requirement. Conversely, if the Government pays a
particular claim in full despite its actual knowledge that certain
requirements were violated, that is very strong evidence that those
requirements are not material. Or, if the Government regularly
pays a particular type of claim in full despite actual knowledge that
certain requirements were violated, and has signaled no change in
position, that is strong evidence that the requirements are not
material.80
Applying the above rules, the Court concludes Plaintiff has failed to present evidence that
would lead a reasonable trier of fact to find the implied certifications were material for payment.

79

Doc. 97 at 25.

80

Escobar, 136 S. Ct. at 2003–04.

26

Here, although the underlying contracts had provisions that stated “the [City] shall operate [the
WTP] in conformity with applicable law, rules, and regulations,” there is no evidence that these
government agencies considered regulatory compliance a condition of payment. And while that
is not dispositive of materiality, it is relevant and supports the City’s contention that the implied
certifications were not material for payment. There is no evidence that these agencies would
refuse to pay their sewer bills had they been aware of the environmental violations. And
Plaintiff adduces no evidence of the City’s knowledge as to whether these agencies would refuse
to pay their monthly sewer bills based on regulatory noncompliance.
The sewer bills in this case did nothing more than demand payment for the federal
agency’s percentage of plant flow and the contracted percentage rates for annual operating and
maintenance expenses. Plaintiff presents no evidence to suggest that the City did not treat the
wastewater as represented in the monthly bills. In contrast, the Escobar defendant submitted
claims for payment using payment codes that corresponded to specific services it represented
that it had provided, such as individual therapy, family therapy, preventive medication
counseling, and other types of treatment.81 Additionally, those claims used National Provider
Identification numbers corresponding to specific job titles, which led everyone to conclude that
the clinic had complied with basic staff and licensing requirements for mental health facilities.
Thus, contrary to Plaintiff’s assertion, her implied false certification claim does not neatly fit
within Escobar’s framework.
Plaintiff’s reliance upon the Tenth Circuit’s Lemmon82 case is also misplaced. In
Lemmon, the government hired the defendant to properly dispose of hazardous waste material.

81

Id. at 2000.

82

United States ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163 (10th Cir. 2010).

27

The contract obligated the defendant to periodically submit written reports detailing its receipt
and disposal of water, submit follow-up reports detailing any problems encountered, maintain
records sufficient to allow the government to confirm compliance with the contractual
provisions, report all contractual violations to the government, and provide and maintain an
inspection system for government review.83 In contrast, the contracts here are for wastewater
service and do not have similar detailed requirements. There is no evidence that the City did not
provide the contracted service—treatment of these agencies’ sewage. And it is uncontroverted
that the Army, VA, and BOP never requested or audited the WTP to ensure environmental
compliance, which suggests that regulatory compliance was not material to payment.
In sum, the summary judgment evidence, even when viewed in the light most favorable
to Plaintiff, fails to demonstrate that the implied certifications in the monthly water bills were
material for payment or that the City submitted these bills with the requisite scienter.
Accordingly, the Court grants summary judgment to the City on the implied false certification
claim. Conversely, the Court denies Plaintiff’s partial summary judgment on this claim because
she has not presented evidence entitling her to summary judgment.
B.

FCA Retaliation Claim (Count II)

Count II asserts the City “harassed, demoted, constructively discharged, caused severe
emotional distress and otherwise discriminated against [Plaintiff], in whole or in part because of
her lawful acts taken involving potential violations of the False Claims Act by Defendant.”84
The FCA prohibits employers from retaliating against an employee for “lawful acts. . . in
furtherance of an action under [the FCA] or other efforts to stop 1 or more violations of [the

83

Id. at 1166.

84

Doc. 24 at 36, ¶ 224.

28

FCA].”85 The City argues it is entitled to summary judgment on this claim because Plaintiff
cannot establish a prima facie case of retaliation; and even if she could, she cannot show that the
City’s proffered, non-retaliatory reasons for demoting her were pretexts.
The parties agree the McDonnell Douglas86 burden-shifting framework applies to FCAretaliation claims.87 Under McDonnell Douglas, Plaintiff initially bears the burden of production
to establish a prima facie case of retaliation.88 If Plaintiff establishes a prima facie case, the
burden shifts to the City to articulate a facially nonretaliatory reason for its actions.89 If the City
articulates a legitimate nonretaliatory reason, the burden shifts back to Plaintiff to present
evidence from which a jury might conclude that the City’s proffered reason is pretextual, that is,
“unworthy of belief.”90
Prima facie case of retaliation
To establish a prima facie case of FCA retaliation, a plaintiff must prove: 1) the employee
engaged in protected activity; 2) the employer knew about the activity; and 3) the employer took
adverse employment action against the employee for engaging in the protected activity.91 The
City does not dispute that Plaintiff engaged in protected conduct, but it challenges the
establishment of the last two elements.

85

31 U.S.C. § 3730(h).

86

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

87

Doc. 93 at 45; Doc. 98 at 54.

88

McDonnell Douglas, 411 U.S. at 802.

89

Id.

90
Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998) (citing Randle v. City of Aurora, 69
F.3d 441, 451 (10th Cir. 1995)).
91

U.S. ex rel. Feaster v. Dopps Chiropractic Clinic, L.L.C., No. 13-1453-EFM, 2015 WL 6801829, at *7
(D. Kan. Nov. 5, 2015); Nifong v. SOC, LLC, 234 F. Supp. 3d 739, 752 (E.D. Va. 2017) (listing three elements for
FCA retaliation claim: (1) employee engaged in protected activity, (2) the employer knew about the activity, and (3)
the employer took adverse action against him as a result.).

29

Although the City acknowledges Plaintiff engaged in protected activity when she told
City Manager Miller about the false claim to FEMA, the parties’ arguments regarding notice
requires the Court to determine whether her other reported concerns constituted protected
activity. The City contends that Plaintiff cannot demonstrate that Superintendent Klingler,
Public Works Director McDonald, and HR Director Lanter, the City employees who allegedly
retaliated against Plaintiff, knew she had questioned the claims submitted to FEMA. The City
argues only the City Manager knew of this protected activity and he made no adverse
employment decisions against her. Plaintiff says the City’s arguments contain two flaws: 1) her
reports about ongoing maintenance problems and improper dumping at the plant to McDonald
and Klingler also constituted protected activity, and 2) even if her protected activity is limited to
the FEMA claim, there is evidence that Miller told McDonald about that activity. Alternatively,
she argues that Miller’s knowledge should be imputed to McDonald and Klingler under the
reverse cat’s paw theory.
a)

Notice/Knowledge

In McBride v. Peak Wellness Center, Inc.,92 the Tenth Circuit discussed the notice
requirement for a FCA retaliation claim:
[A] plaintiff claiming retaliatory discharge under the FCA “has the
burden of pleading facts which would demonstrate that defendants
had been put on notice that plaintiff was either taking action in
furtherance of a private qui tam action or assisting in an FCA
action brought by the government.” [United States ex rel.
Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1522 (10th
Cir. 1996)]. Notice may be provided in a number of ways: for
example, by informing the employer of “illegal activities” that
would constitute fraud on the United States, United States ex rel.
Marlar v. BWXT Y–12, LLC, 525 F.3d 439 (6th Cir. 2008); by
warning the employer of regulatory noncompliance and false

92

688 F.3d 698 (10th Cir. 2012).

30

reporting of information to a government agency, Wilkins v. St.
Louis Hous. Auth., 314 F.3d 927 (8th Cir. 2002); or by explicitly
informing the employer of an FCA violation, Eberhardt v.
Integrated Design & Constr. Inc., 167 F.3d 861, 867 (4th Cir.
1999). But merely informing the employer of regulatory
violations, without more, does not provide sufficient notice,
because doing so gives the employer “no suggestion that [the
plaintiff is] going to report such noncompliance to government
officials” or bring “her own qui tam action.” Ramseyer, 90 F.3d at
1523. Whistleblowers “must make clear their intentions of
bringing or assisting in an FCA action in order to overcome the
presumption that they are merely acting in accordance with their
employment obligations.” Id. at 1523 n. 7.93
Plaintiff’s argument that her reports of maintenance issues, improper dumping, and
regulatory noncompliance constitute protected activity has several problems. First, she cites no
evidence to establish that she complained about the improper dumping to any City official. And
although she may have discussed the trickling filter problems, the broken holding tank mixers,
and the broken H2S monitors with Miller, McDonald, and/or Klingler, she did not tell them that
these maintenance problems put the City in breach of its federal contracts, that she was going to
report these problems to government officials, or that she intended to bring her own qui tam
action. Second, plant maintenance and regulatory compliance are a part of her job as Assistant
Superintendent, thus her concerns about them would not indicate to them that she was planning
to report illegal activities or initiate a qui tam action. Under these circumstances, the Court finds
that Plaintiff’s reports of ongoing maintenance problems and regulatory noncompliance did not
provide the City with sufficient notice that she was making them to stop the City from presenting
false claims to these federal agencies. Simply put, there is no evidence other than that Plaintiff
was doing her job by raising and attempting to fix these maintenance issues.

93

Id. at 704.

31

As to whether Miller’s knowledge about Plaintiff’s FEMA activity may be imputed to
McDonald, Klingler, and Lanter under a reverse cat’s paw theory, the Court finds this argument
superfluous. The cat’s paw theory refers to a situation in which “a biased subordinate, who lacks
decision-making power, uses the formal decisionmaker as a dupe in a deliberate scheme to
trigger a discriminatory employment action.”94 Plaintiff argues the reverse applies here, that
Miller had the discriminatory animus and infected McDonald, Klinger, and Lanter by outright
telling them or hinting to them that Plaintiff was creating trouble and should be stopped.95 As
both parties noted, the Tenth Circuit recognizes the “cat’s paw” doctrine, but has not yet
addressed a reverse cat’s paw situation.96 Likewise, this Court finds it unnecessary to address
this doctrine because this issue requires the same factual determination—whether Miller told the
adverse employment decisionmakers about the protected activity to get rid of Plaintiff.
Plaintiff offers the temporal proximity between her meeting with Miller and the abrupt
change in Klingler’s demeanor and treatment of her as evidence that Miller told McDonald
and/or Klingler about her FEMA activity. Plaintiff also testified that McDonald knew things she
had disclosed only to Miller. The Court finds a fact issue exists regarding whether Miller
relayed Plaintiff’s FEMA fraud concerns to McDonald or Klingler, making summary judgment
based on lack of notice of protected activity inappropriate.

94

EEOC v. BCI Coca–Cola Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006), cert. dism’d, 549 U.S.
1334 (2007).
95

Doc. 98 at 59.

96

Muhammad v. Hall, 674 F. App’x 810, 813 (10th Cir. 2017) (“This court has not yet addressed whether
the subordinate can be liable in a ‘reverse cat’s paw’ situation.”). But see Ware v. Denver Health, No. 09-CV01103REBBNB, 2010 WL 2740078, at *4 (D. Colo. July 12, 2010) (stating the cat’s paw doctrine does not operate
in the reverse).

32

b)

Adverse Employment Actions for Engaging in Protected Activity

To constitute an adverse employment action, “the employer’s conduct must be
‘materially adverse’ to the employee’s job status.”97 “Each case must be ‘judged from the
perspective of a reasonable person in the plaintiff’s position, considering all the circumstances,’
and the inquiry does not ‘turn on a plaintiff’s personal feelings’ about the circumstances of the
case.”98
In Johnson v. Weld County, Colorado,99 the Tenth Circuit explained how to approach the
question of whether an employer’s actions were materially adverse:
[W]e are obligated to bear in mind that “Title VII protects
individuals ‘not from all retaliation’ but only from retaliation ‘that
produces an injury or harm’” that itself rises to a “‘level of
seriousness.’” Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079,
1087 [(10th Cir. 2007)] (quoting Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 67 (2006)). To qualify under this standard,
we held in Williams that a plaintiff must show “a reasonable
employee would have found the challenged action materially
adverse, which in this context means it well might have dissuaded
a reasonable worker from making or supporting a charge of
discrimination.” Id. (quoting White, 548 U.S. at 68) (internal
quotation marks omitted). “Requiring this level of adversity . . . is
necessary ‘to separate significant from trivial harms.’” id. (quoting
White, 548 U.S. at 68), “petty slights, minor annoyances, and
simple lack of good manners,” White, 548 U.S. at 68. “Otherwise,
minor or even trivial employment actions that an irritable, chip-onthe-shoulder employee did not like would form the basis of a
discrimination suit.” MacKenzie v. City & County of Denver, 414
F.3d 1266, 1279 (10th Cir. 2005) (quoting Smart v. Ball State
Univ., 89 F.3d 437, 441 (7th Cir. 1996)).100

97

Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1213 (10th Cir. 2003).

98
Daniels v. United Parcel Serv., Inc., 797 F. Supp. 2d 1163, 1187 (D. Kan. 2011), aff’d, 701 F.3d 620
(10th Cir. 2012) (internal citations omitted).
99

594 F.3d 1202 (10th Cir. 2010).

100

Id. at 1216 (parallel citations omitted). See Difiore v. CSL Behring, U.S., LLC, 171 F. Supp. 3d 383, 393
n.4 (E.D. Pa. 2016) (noting courts have applied Title VII anti-retaliation requirements in FCA retaliation cases,

33

Plaintiff argues that she suffered the following adverse employment actions in retaliation
for complaining to Miller on March 26, 2013: (i) Klingler began overly scrutinizing her work;
(ii) Klingler dramatically increased her workload, gave her long lists of busy-work type tasks to
complete, and then ignored her;101 (iii) Klingler, McDonald, and Lanter denied her request for an
extension to obtain her Class IV certification;102 (iv) the City demoted her for failing to obtain
her Class IV certification within 12 months of her promotion to Assistant Superintendent; and
(v) the City constructively discharged her.103 The City argues these acts do not constitute
adverse employment actions.
(i)

The Memo

Plaintiff presents the Memo as evidence that Klingler began overly scrutinizing her work.
It is undisputed that this memo was issued after Klingler’s management style had been criticized
when WTP operator Bennetts quit at the end of March 2013 and after McDonald counseled
Klingler to communicate his expectations to his subordinates. The memo itself contains no
opprobrious or reproachful language. At one point, Klingler even complimented Plaintiff,
writing, “You have done a good job of taking care of this during normal operations and have
responded in a timely manner to calls regarding plant operations on the weekend.”104 The
remainder of the Memo requested documentation for sick leave and a timeline regarding a
customer complaint. Additionally, the Memo was not placed in Plaintiff’s personnel file as a

including what constitutes an “adverse employment action”), aff’d sub nom. DiFiore v. CSL Behring, LLC, 879 F.3d
71 (3d Cir. 2018).
101

Doc. 98 at 57.

102

Id. at 28, 61.

103

Doc. 98-8 at 2.

104

Doc. 93-18 at 2.

34

disciplinary event.105 Simply put, there is no objective evidence in the record that the Memo
would deter a reasonable employee from reporting the FEMA fraud. The Court finds that the
Memo does not constitute an adverse employment action.106
(ii)

Increase in Workload and Failure to Assist

Plaintiff next claims she suffered an adverse employment action when Klingler ordered
her to contact him via email only, increased her workload dramatically with menial tasks, made
himself unavailable to assist her, and shifted his responsibilities to her. She argues that the
abrupt change in her working conditions and in the way that Klingler treated her, almost
immediately on the heels of her protected activities, is sufficient evidence from which a jury
could reasonably conclude that his harassment was motivated at least in part by her protected
activity. She also claims that Klingler purposely overloaded her with work to prevent her from
studying for and passing her Class IV exam, which resulted in her demotion and constructive
discharge. She argues that this was Klingler’s scheme to prevent her from studying for and
passing her Class IV exam.
The City argues that although Plaintiff had been appointed as Assistant Superintendent on
August 16, 2012, due to her duties as the project representative of the UV building, she did not
begin acting as full-time Assistant Superintendent until the end of 2012.107 Thus, Plaintiff had
been performing the assistant superintendent job full-time for less than four months when she

105

Doc. 98 at 24, ¶ 110.

106
See Smith v. Aaron’s Inc., 325 F. Supp. 2d 716, 727 (E.D. La. 2004) (holding that a supervisor giving
“direct goals to accomplish and work-related instructions” was not harassment despite plaintiff’s subjective
feelings); Aikens v. Banana Republic, Inc., 877 F. Supp. 1031, 1039 (S.D. Tex. 1995) (“[T]he mere fact that
[plaintiff] experienced ‘pressure’ or was ‘nitpicked’ does not establish such intolerable working conditions as to give
rise to a constructive discharge.”).
107

Doc. 98 at 21, ¶ 94.

35

began receiving assignments from Klingler.108 The City further argues that because it is
uncontroverted that the tasks Klingler assigned to her fell within the scope of her job duties,109
Klingler’s actions do not constitute harassment severe enough to constitute prima facie adverse
employment action.
“Job duty assignments are neither automatically actionable nor categorically nonactionable.”110 Courts are reluctant to hold that changes in job duties amount to adverse
employment action when unaccompanied by any tangible harm such as a reduction in salary.111
Plaintiff, however, alleges a tangible harm—less time to study for her Class IV exam, which
resulted in her demotion. She presents affidavits from two former WTP employees to support
her claim that Klingler’s campaign of harassment was his modus operandi to get rid of unwanted
personnel. Keith Smith stated, in pertinent part:
1. During my tenure at Leavenworth, I observed that when Charlie
Klingler liked an employee, he made sure they had time to study
for their operator’s exams.
2. However, if [he] did not like a particular employee, he would
overload them with work so that they could not study for their
tests, would fail, and would therefore be terminated.112
Tom Schellhorn declared, in pertinent part:

108

Id.

109

Doc. 98 at 26, ¶ 117.

110

Daniels v. United Parcel Serv., Inc., 797 F. Supp. 2d 1163, 1188 (D. Kan. 2011) (citing Semsroth v. City
of Wichita, 555 F.3d 1182, 1185–86 (10th Cir. 2009)), aff’d, 701 F.3d 620 (10th Cir. 2012).
111
Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (stating the asserted impact
cannot be speculative and must at least have a tangible adverse effect on the plaintiff's employment); see also
Melton v. Nat’l Dairy LLC, 705 F. Supp. 2d 1303, 1329 (M.D. Ala. 2010) (“Changes in work assignments that do
not cause any economic injury to the employee do not constitute adverse employment action.”).
112

Doc. 98-4 at 2, Dec. of Keith Smith, ¶¶2–3.

36

5. It was easy to see that [Plaintiff’s] workload was significantly
larger than [her predecessor] when he had her job. She was always
at the plant, often working very late into the evening.
6. Mr. Lough [Plaintiff’s predecessor] never worked those hours.
7. It does not take a genius to conclude that Charlie Klingler did
not like it when Michele attempted to get things fixed around the
plant and attempted to address various safety concerns around the
plant and he hammered her with work because of that.113
The above evidence, when viewed in the light most favorable to Plaintiff, is sufficient to
demonstrate that a reasonable person might have viewed her workload as intolerable. The Court
finds a genuine dispute of material fact exists as to whether the amount of her workload was
designed to dissuade her from engaging in the protected activity and thus constitutes an adverse
employment action.114
(iii)

Denial of Extension for Class IV Certification

Klingler, McDonald, and Lanter all denied Plaintiff’s request for a six-month extension to
obtain her Class IV certification. The City states that it has not granted an extension of a
deadline to pass the Class IV operator exam, other than for a few days to meet a testing schedule.
This is exactly what the City did when it extended Plaintiff’s deadline from August 16, 2013 to
August 29, 2013.115 Plaintiff attempts to controvert this fact by pointing to her testimony that
two other operators would have been given an extension of time in which to pass their exams if

113

Doc. 98-6 at 2, Decl. of Tom Schellhorn, ¶¶ 5-7.

114

Cf. Young v. White, 200 F. Supp. 2d 1259, 1272–73 (D. Kan. 2002) (holding no adverse employment
action when a supervisor assigns tasks within his authority even though plaintiff “might disagree with the tasks that
are assigned or with the decision to give certain tasks to certain individuals” because such assignment did not “alter[
] plaintiff’s employment status in any way or had any negative effect on plaintiff's standing within the
organization.”); Roecker v. Brennan, No. 15-7201-DDC-JPO, 2017 WL 445504, at *11 (D. Kan. Feb. 2, 2017)
(concluding plaintiff’s retaliation claim fails because she has not established a causal or temporal link between
plaintiff’s work assignment and the protected activity of filing an EEO complaint sufficient for her retaliation claim
to survive summary judgment).
115

Doc. 93-19 at 5.

37

they had not already taken the tests three times in one year.116 Plaintiff, however, offers no
evidence regarding these two other operators. Thus, there is no evidence to infer these operators
were similarly situated assistant superintendents. Moreover, her testimony ultimately was that
no extensions were granted.
Plaintiff further that her situation was different because another testing date was offered
within the one-year window. But Plaintiff offers no details or evidentiary support. It is
uncontroverted that Plaintiff’s deadline to obtain Class IV certification was August 16, 2013, one
year from the date of her promotion to Assistant Superintendent. Plaintiff took and failed the
Class IV exam in December 2012, on May 9, 2013, August 2, 2013, and August 29, 2013.117
The City allowed Plaintiff to take the August 29, 2013 exam, which was outside the one-year
window. Plaintiff has thus failed to establish that the denial of her six-month extension for Class
IV certification was causally connected to her protected activity.
(iv)

Demotion

It is uncontroverted that Plaintiff’s demotion constitutes an adverse employment
action.118 The City argues, however, that Plaintiff has failed to show her demotion was causally
linked to the protected activity.119 Even though Plaintiff’s demotion occurred more than five
months after her protected activity, she nonetheless may establish an inference of retaliatory
motive by proving a pattern of retaliatory conduct began soon after she engaged in the activity,

116

Doc. 98 at 29, ¶ 128 (citing Dep. of Coffman, 251:1-23).

117

Doc. 98 at 27, ¶¶ 119, 121, and 131.

118

Doc. 99 at 26.

119

Id. at 28. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (stating temporal proximity
between opposition and adverse action must be “very close” to warrant a conclusion of causality); Richmond v.
ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (holding lapse of three months insufficient to establish a causal
connection).

38

which culminated in her demotion.120 Because her workload and demotion are inextricably
intertwined, the Court finds a factual issue exists as to whether the amount of her workload was
designed to prevent her from obtaining Class IV and result in her demotion. Under these
circumstances, the Court cannot say on summary judgment whether Plaintiff’s demotion
constituted an adverse employment action.
(v)

Constructive Discharge

A constructive discharge occurs when an employer, by discriminatory or retaliatory
actions, makes or allows the employee’s working conditions to become so intolerable that the
employee has no other choice but to quit.121 A finding of constructive discharge depends upon
whether a reasonable man would view the working conditions as intolerable, not upon the view
of the employee-plaintiff.122 The conditions of employment must be objectively intolerable;
plaintiff’s subjective views of the situation are irrelevant.123 “If an employee resigns of her own
free will, even as a result of the employer’s actions, that employee will not be held to have been
constructively discharged.”124 “The bar is quite high in such cases: a plaintiff must show [s]he
had no other choice but to quit.”125

120

Marx v. Schnuck Mkts. Inc., 76 F.3d 324, 329 (10th Cir.1996) (recognizing that protected conduct
closely followed by adverse action may justify an inference of retaliatory motive and holding that the close temporal
proximity requirement should not be read too restrictively where a pattern of discrimination begins soon after
protected activity and only culminates later in actual discharge).
121

Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir. 1986); Irving v. Dubuque Packing Co., 689 F.2d
170, 172 (10th Cir. 1982).
122

Derr, 796 F.2d at 344.

123

Sanchez v. Denver Pub. Sch., 164 F.3d 527, 534 (10th Cir. 1998); Yearous v. Niobrara Cty. Mem’l
Hosp., 128 F.3d 1351, 1356 (10th Cir. 1997).
124

Jeffries v. State of Kan., 147 F.3d 1220, 1233 (10th Cir. 1998).

125

Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002).

39

Plaintiff contends she was forced to quit because the campaign of harassment caused her
extreme stress, anxiety, and depression.126 But Plaintiff’s claim is conclusory. Moreover, an
employee cannot survive summary judgment merely by producing evidence that work conditions
were difficult or unpleasant.127 Viewing the evidence in a light most favorable to Plaintiff, she
has not raised a genuine issue of material fact whether she had no choice but to quit.
Accordingly, she cannot rely on constructive discharge as a materially adverse action for her
retaliation claim.128
In sum, the Court finds that under the circumstances, the Nitpicky Memo and the
constructive discharge do not constitute materially adverse actions. Plaintiff has failed to adduce
evidence of causality for the denial of the certification extension, thus that decision does not
constitute a materially adverse action. A fact issue, however, exists regarding whether Klingler’s
work assignments to Plaintiff were designed to prevent her from studying for and passing her
Class IV certification exam, which led to her demotion. The Court concludes Plaintiff has
established a prima facie case of retaliation.
Pretext
Proceeding to the next McDonnell Douglas step, the Court finds that the City has
articulated a facially, nonretaliatory reason for demoting Plaintiff—she failed to pass the Class
IV certification exam within twelve months of her promotion to Assistant Superintendent. The
City argues that Plaintiff cannot show that its proffered, nonretaliatory reason for demoting her
was pretext. Plaintiff argues pretext based on the following: 1) a former employer observed that

126

Doc. 98-8 at 2, Plaintiff’s Resignation Letter.

127

Fischer v. Forestwood Co., 525 F.3d 972, 981 (10th Cir. 2008).

128

VonLintel v. Eagle Commc’ns, Inc., No. CV 14-4125-KHV, 2016 WL 7179465, at *13 (D. Kan. Dec. 9,

2016).

40

Klingler had used the tactic of overworking employees to keep them from studying in the past to
get rid of a problem employee,129 and 2) the City has not provided any explanation for why
Klingler began harassing her, when he had previously “adored” her.
A plaintiff shows “pretext by revealing such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons
for its action that a reasonable factfinder could rationally find them unworthy of credence.”130 A
plaintiff typically makes a showing of pretext in one of three ways: “(1) with evidence that
defendant’s stated reason for the adverse employment action was false; (2) with evidence that the
defendant acted contrary to a written company policy prescribing the action taken by the
defendant under the circumstances; or (3) with evidence that .... he was treated differently from
other similarly-situated employees who violated work rules of comparable seriousness.”131
“In determining whether the proffered reason for a decision was pretextual, we examine
the facts as they appear to the person making the decision, not as they appear to the plaintiff.”132
Moreover, the Court does not ask “whether the employer’s proffered reasons were wise, fair or
correct,” but only “whether [the employer] honestly believed those reasons and acted in good
faith upon those beliefs.”133
The Court rejects Plaintiff’s argument that the City’s failure to provide a reason for
Klingler’s sudden change in attitude is evidence of pretext. Plaintiff cites no authority for this

129

Doc. 98 at 61.

130

Green v. New Mexico, 420 F.3d 1189, 1192–93 (10th Cir. 2005) (internal quotations omitted).

131

Salguero v. City of Clovis, 366 F.3d 1168, 1176 (10th Cir. 2004) (quoting Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)).
132

Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642, 655 (10th Cir. 2013) (internal quotation marks
omitted) (quoting Luster v. Vilsack, 667 F.3d 1089, 1093 (10th Cir. 2011) (emphasis in original)).
133

Debord, 737 F.3d at 655.

41

proposition. Additionally, the City did provide an explanation for Klingler’s change in
attitude—Bennett’s resignation raised concerns about Klingler’s management style, which
resulted in McDonald counseling Klingler to communicate his expectations clearly and let his
employees do their jobs.134
The Court nonetheless finds a genuine dispute exists regarding whether the City’s
proffered reason for demoting Plaintiff was pretextual. The City argues that Plaintiff’s theory
that Klingler overwhelmed her with work to prevent her from studying for and passing her Class
IV certification overlooks the following facts: 1) she had over eight months before the alleged
retaliation began to obtain Class IV certification; 2) the tasks Klingler assigned to her were part
of her job; and 3) the temporal proximity between her protected conduct and the work
assignment alone is insufficient to demonstrate pretext.135 The Court finds the first argument
unpersuasive. The City gave Plaintiff twelve months to obtain certification, not eight months.
Plaintiff also provided a reasonable explanation for not taking the exam more than once during
the first eight months. She explained that during her first five months as Assistant
Superintendent, she was also in charge of the UV building project so had planned to prepare for
the exam after that project ended and she became more comfortable in her management
position.136
The City’s second argument echoes its argument that Klingler’s work assignments were
not adverse employment actions under the circumstances. For the same reasons stated in Section
III.B.1.b)(ii) above, the Court finds that the affidavits from two former employees and Plaintiff’s

134

Doc. 99 at 28.

135

Id.

136

Doc. 98-12 at 2.

42

testimony raise a factual issue as to whether her work assignments were intended to provide the
City with a pretext to demote her.
Finally, although temporal proximately alone is insufficient to demonstrate pretext,
Plaintiff has provided other evidence to demonstrate pretext. Specifically, she presents the
affidavits from two former employees, as well as her own testimony. The sudden change in
Klingler’s attitude almost at the exact time when Plaintiff reported her FEMA concerns to Miller,
combined with the other evidence, could be viewed by the jury as evidence of pretext or of
animus against Plaintiff for engaging in protected activity. Summary judgment is thus
inappropriate on the FCA retaliation claim.
C.

Common Law Whistleblower Retaliation and Retaliatory Discharge Claims
(Counts III and IV, respectively)

Under the “adequate alternative remedies” doctrine, bringing a statutory claim precludes
a plaintiff from bringing a common law claim that seeks to redress the same harm as the
statutory claim if the statutory remedy is adequate.137 Courts have held that an FCA claim is not
an adequate alternative remedy when the common law claim “clearly encompasses conduct
beyond violations of the FCA” or addresses “different harms” than the FCA claim.138
The City argues the FCA precludes Counts III and IV as they are duplicative of Counts I
and II. Alternatively, the City argues these claims fail for the same reasons as the FCA claims.
The City contends that in the Pretrial Order, Plaintiff made clear that her state law retaliation
claims relate to reporting “misuse or fraud in the procurement or expenditure of government

137

Lipka v. Adv. Health Grp., Inc., No. 13-CV-2223, 2013 WL 5304013, at *7 (D. Kan. Sept. 20, 2013)
(citing Campbell v. Husky Hogs, LLC, 255 P.3d 1 (Kan. 2011)).
138

Id. (citations omitted).

43

funds,” and/or her reports “regarding fraud against government budgets.”139 Because her FCA
claims are premised on these same reports, the City argues the adequate alternative remedy
doctrine precludes her common law claims.
Plaintiff responds that she has alleged retaliation and whistleblowing based not only on
fraud against the federal government, but also on safety issues at the plant.140 She contends that
because it is unclear whether the fact-finder would find retaliation based on reports of fraud,
maintenance, and improper dumping or reporting unsafe working conditions, or both, the False
Claims Act does not provide an adequate alternative remedy, and summary judgment is
inappropriate.
The Court agrees with the City that Plaintiff’s common law retaliatory discharge claim
encompasses the same conduct and harms as her FCA retaliation claim. The Pretrial Order states
that an essential element of Plaintiff’s common law retaliation claim is that she “made good faith
reports either internally or to a governmental agency regarding fraud against government
budgets.”141 Plaintiff’s reports of fraud were also at the heart of her FCA retaliation claim. The
Pretrial Order does not reflect that her common law retaliation claim is based on reports of illegal
conduct outside the scope of the FCA.142 Thus, because Plaintiff’s common law retaliation claim
encompasses the same harms and conduct as her FCA retaliation claim, the Court finds that her
common law retaliation claim is barred by the adequate alternative remedy doctrine.

139

Doc. 91 at 15–16.

140

See Doc. 24 ¶ 227 (“A reasonably prudent person would have concluded that Defendant, was engaged in
violation of rules, regulations or laws pertaining to public health, safety or general welfare.”).
141

Doc. 91 at 16.

142

See id.

44

By contrast, the Pretrial Order states that an essential element of Plaintiff’s Count III
whistleblower retaliation claim is that “a reasonable person would have concluded that the
Defendant was violating rules, regulations, or laws pertaining to public health, safety or general
welfare.”143 Another element is that Plaintiff “reported the Defendant’s violations of rules,
regulations or laws internally or to a governmental agency.”144 This language tracks with
Plaintiff’s First Amended Complaint.145 Furthermore, this language demonstrates that Count III
is premised on Plaintiff’s reports of both fraud and safety issues at the plant, and therefore her
claim relates to conduct outside the scope of her FCA retaliation claim. Accordingly, the Court
finds that the adequate alternative remedy doctrine does not preclude Plaintiff’s whistleblower
retaliation claim. The City’s motion for summary judgment is therefore denied as it relates to
Count III and granted as it relates to Count IV.146
D.

Negligent Infliction of Emotional Distress (Count V)

The City seeks summary judgment on Count V, arguing: 1) this Court lacks subject
matter jurisdiction over it because Plaintiff failed to provide pre-suit notice as required by K.S.A.
12-105b; and 2) Plaintiff cannot show she has suffered a qualifying physical injury. As to the
latter, Plaintiff claims that she experienced chest pain, which constitutes a qualifying physical
injury as it required visits to the emergency department and to cardiologists. As to pre-suit

143

Id. at 15.

144

Id. at 16.

145

Doc. 24, ¶ 227.

146

The City also argues that the Counts III and IV claims fail for the same reasons as her FCA retaliation
claim. See Doc. 93 at 49 (City arguing that it is entitled to summary judgment on Counts III and IV “for the reasons
stated in Section IV, incorporated herein by reference”). As explained above, however, the Court finds that material
issues of fact remain as to Plaintiff’s FCA retaliation claim. See supra Part III.B. The Court further finds that
material issues of fact also remain as to Plaintiff’s Count III whistleblower retaliation claim, and the Court is not
persuaded that the City’s arguments as to her FCA retaliation claim provide a basis for granting their summary
judgment motion as to Count III.

45

notice, Plaintiff claims that she substantially complied with K.S.A. 12-105b under the unique
circumstances of this case. She contends that because the FCA required her to file her claims
under seal, she was unable to comply with K.S.A. 12-105b without violating the FCA’s seal
requirement. Alternatively, she contends that the City received notice of the First Amended
Complaint when this Court unsealed the initial complaint and when the media reported the story.
As a result, she argues that the City was aware of her claims and was not prejudiced in not
receiving formal notice. Finally, she suggests that the City’s failure to attempt to settle these
claims constitutes denial of her claims, “which would have then permitted Plaintiff to file her
claim.”147 The Court finds Plaintiff’s arguments unpersuasive.
K.S.A. 12-105b(d) provides:
Any person having a claim against a municipality or against an
employee of a municipality which could give rise to an action
brought under the Kansas tort claims act shall file a written notice
as provided in this subsection before commencing such action.
The notice shall be filed with the clerk or governing body of the
municipality and shall contain the following: (1) The name and
address of the claimant and the name and address of the claimant’s
attorney, if any; (2) a concise statement of the factual basis of the
claim, including the date, time, place and circumstances of the act,
omission or event complained of; (3) the name and address of any
public officer or employee involved, if known; (4) a concise
statement of the nature and the extent of the injury claimed to have
been suffered; and (5) a statement of the amount of monetary
damages that is being requested. In the filing of a notice of claim,
substantial compliance with the provisions and requirements of this
subsection shall constitute valid filing of a claim. The contents of
such notice shall not be admissible in any subsequent action arising
out of the claim. Once notice of the claim is filed, no action shall
be commenced until after the claimant has received notice from the
municipality that it has denied the claim or until after 120 days has
passed following the filing of the notice of claim, whichever
occurs first. A claim is deemed denied if the municipality fails to
approve the claim in its entirety within 120 days unless the

147

Doc. 98 at 64.

46

interested parties have reached a settlement before the expiration
of that period. No person may initiate an action against a
municipality or against an employee of a municipality unless the
claim has been denied in whole or part. Any action brought
pursuant to the Kansas tort claims act shall be commenced within
the time period provided for in the code of civil procedure or it
shall be forever barred, except that, a claimant shall have no less
than 90 days from the date the claim is denied or deemed denied in
which to commence an action.
“The notice requirements in K.S.A. § 12–105b(d) are mandatory and a condition precedent to
bringing a tort claim against a municipality.”148
The Court rejects Plaintiff’s argument that she was unable to comply with K.S.A. 12105b’s notice requirement without violating the FCA’s seal requirement. Although providing
105b-notice may alert the defendant of a pending criminal investigation and undermine the
purpose of the FCA’s seal requirement, these requirements do not conflict procedurally. Plaintiff
can comply with both statutes by providing pre-suit notice and then file the complaint under seal.
The Court also rejects any argument that compliance with the FCA’s seal requirement excuses
noncompliance with K.S.A. 12-105b. Plaintiff has failed to provide any authority to support that
proposition and the Court has found none.
Likewise, the Court rejects Plaintiff’s argument that she substantially complied with the
105b-notice requirement because the City received notice of Plaintiff’s claims when this Court
unsealed the original complaint and when the news media publicized them. K.S.A. 12-105b
requires prior notice — the notice must be written and filed with the municipality prior to the
commencement of litigation. An action generally commences upon the filing of a complaint.
Allowing the original complaint to serve as the 105b-notice for the Amended Complaint renders

148

Miller v. Brungardt, 916 F. Supp. 1096, 1098 (D. Kan. 1996).

47

the statute meaningless because the litigation has already commenced. The news media
coverage also fails to constitute the requisite notice under the statute because they too were postsuit.
Equally unavailing is Plaintiff’s argument that the City’s failure to attempt to settle her
claims constitutes a denial of her claims which then allowed her to commence litigation. This
argument puts the cart before the horse. The City cannot attempt to settle Plaintiff’s claims if it
was unaware of them. Moreover, K.S.A. 12-105b contains two triggering events: 1) the filing of
the 105b-notice, or 2) the claimant’s receipt of a denial of the claims. By requiring the claimant
to receive notice from the municipality that it has denied the claim, the statute contemplates that
the denial be affirmative or concrete so that a triggering date may be identified. Plaintiff’s
argument requires assuming a denial based on inaction, which is contrary to the statute’s
affirmative framework.
The Court concludes Plaintiff did not provide the City with pre-suit notice pursuant to
K.S.A. 12-105b. The Court thus lacks subject matter jurisdiction over Count V. Accordingly,
the City is entitled to summary judgment as to Count V. This conclusion renders discussion on
the physical injury issue unnecessary.
IV.

CONCLUSION
The summary judgment evidence, even when viewed in the light most favorable to

Plaintiff, fails to demonstrate that the City submitted a false claim to FEMA. Accordingly, the
Court grants summary judgment to the City on the FEMA claim. Likewise, Plaintiff fails to
adduce evidence to demonstrate that the implied certifications in the monthly water bills were
material for payment or that the City submitted these bills with the requisite scienter.
Accordingly, the Court grants summary judgment to the City on the implied false certification

48

claim. For the same reasons, the Court denies Plaintiff’s motion for summary judgment on the
FCA-false claims (Count I).
Summary judgment is inappropriate on the FCA-retaliation claim (Count II) because
issues of fact remain with respect to knowledge, materially adverse employment action, and
pretext. Summary judgment is also inappropriate on Plaintiff’s common law Whistleblower
Retaliation claim (Count III) because her FCA retaliation claim does not provide an adequate
alternative remedy for this claim and genuine disputes of fact remain as to it. However, the
Court grants the City’s motion for summary judgment as to Plaintiff’s common law Retaliatory
Discharge claim (Count IV) because her FCA claim does provide an adequate alternative remedy
for this claim. Finally, because Plaintiff did not provide the City with pre-suit notice pursuant to
K.S.A. 12-105b, this Court lacks subject matter jurisdiction over Plaintiff’s Negligent Infliction
of Emotional Distress claim, entitling the City to summary judgment on Count V.
IT IS THEREFORE ORDERED that the City’s motion for summary judgment
(Doc. 92) is GRANTED IN PART and DENIED IN PART. The Court grants summary
judgment to the City on Counts I, IV, and V.
IT IS FURTHER ORDERED that Plaintiff’s partial summary judgment (Doc. 94) is
DENIED.
IT IS SO ORDERED.

Dated: March 23, 2018
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

49