McCollum v. Jacobs Engineering Group, Inc.

Filing 87

ORDER granting 57 Motion for Summary Judgment Signed by Honorable David C. Bramlette, III on 1/21/2014 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
SCOTTY MCCOLLUM

PLAINTIFF

VS.

CIVIL ACTION NO. 3:13-cv-866(DCB)(MTP)

JACOBS ENGINEERING GROUP, INC.,
and JACOBS PROJECT MANAGEMENT CO.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on the defendants Jacobs
Engineering Group, Inc., and Jacobs Project Management Co.’s Motion
for Summary Judgment (docket entry 57).

The Court has carefully

considered the motion and response, as well as the memoranda of the
parties, all supporting documents, and the applicable law.

The

Court held a hearing on the motion on December 10, 2013, and
received supplemental briefing from the parties.

Being fully

advised in the premises, the Court finds as follows:
In

2008,

the

Federal

Bureau

of

Prisons

(“BOP”)

awarded

Caddell-Yates a contract to design and build a federal correctional
institution for women in Aliceville, Alabama.

Jacobs Project

Management Co. (“Jacobs”) was awarded a separate contract to
perform

construction

management

services

for

the

BOP

on

the

Aliceville Project.
As construction manager, Jacobs provided advice and assistance
to the BOP in managing the construction of the prison by CaddellYates.

In

October

of

2008,

Jacobs

hired

Scotty

McCollum

(“McCollum”) as a resident field engineer for the Aliceville

Project.
One of McCollum’s responsibilities was to prepare independent
government estimates (“IGEs”) for the BOP. Among other things, the
BOP used IGEs to negotiate the pricing of change orders with
Caddell-Yates. As is customary, Jacobs hired McCollum for a single
project – the Aliceville Project – and his employment was to
conclude at the end of that project.

See Exhibit 5 to Defendants’

Motion for Summary Judgment,1 42:2-43:4 (Reeves-Long).

McCollum’s

employment was expected to conclude on August 5, 2011, when the
Aliceville Project was scheduled to be completed.

Def. Ex. 6, at

1.
Beginning in February of 2009, the BOP’s on-site supervisor,
Darell Hainline, made a series of complaints to Jeff Adamo,
McCollum’s direct supervisor, about the timeliness with which
McCollum was preparing estimates.

Def. Ex. 7, 77:10-17 (Adamo).

Hainline made similar complaints to Bob Paul, Adamo’s supervisor.
Def. Ex. 8, 70:7-72:22 (Paul).

Hainline felt that McCollum was

taking too long to prepare IGEs, and that the IGEs he ultimately
did prepare contained obvious errors and omissions.

Def. Ex. 9,

41:1-24, 42:0-43:17 (Hainline).
Hainline was also critical of McCollum’s work ethic.

He

complained to Adamo, Paul, and others that McCollum would arrive to

1

Hereafter, exhibits to the defendants’ motion for summary
judgment are referred to as “Def. Ex.”
2

work late, and take lunches well beyond the allotted thirty
minutes.

Def. Ex. 7, 77:14-21 (Adamo); Def. Ex. 9, 31:19-33:17,

49:7-23, 182:5-12, 205:7-206:3 (Hainline).
Paul and Adamo spoke with McCollum on a number of occasions
about

these

complaints.

They

offered

McCollum

constructive

criticism and encouraged him to improve his performance.

Def. Ex.

10, at 1; Def. Ex. 4, at 2.
McCollum

disagreed

with

Hainline’s

assessment

of

his

performance, and felt that Hainline’s approach to processing change
orders was misguided.

He insisted that his IGEs were only delayed

because he did not have the documents necessary to do his job.
Def. Ex. 11, at 4-5; Def. Ex. 10, at 1.
In July of 2009, Adamo conducted McCollum’s annual performance
review. Adamo was generally positive about McCollum’s performance,
and principally was concerned with repairing his poor relationship
with Hainline.

Def. Ex. 2, 132:23-134:24 (McCollum).

McCollum’s relationship with BOP’s Hainline did not improve.
In August and September of 2009, Hainline reiterated to Paul and
Adamo that McCollum’s performance and work ethic were unacceptable.
Def. Ex. 7, 104:3-16 (Adamo); Def. Ex. 8, 171:6-172:5 (Paul).
Hainline

explained that McCollum’s habit of arriving late and

taking long lunches was getting worse, not better.

Def. Ex. 9,

30:7-33:17, 34:11-36:3, 37:23-38:5 (Hainline).
Hainline had started keeping track of the times that McCollum

3

arrived in the morning, took lunch, and left in the afternoon.
Id., 30:7-31:18.

Hainline felt that McCollum’s attendance was

“completely unacceptable.”

Id., 30:15-19.

Hainline notified

Jacobs that the BOP wanted Jacobs to replace McCollum on the
Aliceville Project.

Id., at 178:3-19; Def. Ex. 10, at 2.

Paul and Adamo informed McCollum of the BOP’s decision.
Ex. 8, 202:15-203:4 (Paul); Def. Ex. 10, at 2-3.

Def.

They offered to

provide good references, and Paul agreed to keep McCollum in mind
for positions that might become available in the future.
2,

140:14-141:8,

145:20-22

(McCollum);

Def.

Ex.

8,

Def. Ex.
179:4-12,

193:19-194:6 (Paul).
Paul also contacted Jacobs’ managers in Arlington and Orlando
on McCollum’s behalf to try to find him another position. Def. Ex.
8, 183:7-20 (Paul).

Meanwhile, McCollum demanded to see the BOP’s

complaints about his performance in writing. Def. Ex. 2, 163:13-22
(McCollum).
On October 6, 2009, John Hume – a contracting officer with the
BOP – sent a letter to Jacobs formally directing that McCollum be
replaced “as soon as practicable.”

Def. Ex. 1, at 2.

The letter

stated that McCollum’s estimates were “not being completed in a
timely fashion,” and were “not thorough” or “sufficiently credible
to allow the BOP to adequately evaluate or negotiate proposals from
the Design Builder with confidence.”

Id. at 1.

The October 6th letter noted that under paragraph E.6 of the

4

agreement between Jacobs and the BOP, the BOP “reserves the right
to require a change or replacement of [Jacobs] personnel.”

The

BOP’s letter then concluded:
This letter is to notify Jacobs Technology that the
current Estimator [McCollum] is not satisfactorily
performing the duties required by our contract. It is in
the best interests of the Government to replace the CMF2
staff member ... Please propose a suitable replacement/
substitution as soon as practicable.
Id. at 1-2.
Meanwhile,

McCollum

had

begun

complaining

about

the

IGE

process on the Aliceville Project.

Def. Ex. 8, 173:7-13, 202:15-

203:8 (Paul); Def. Ex. 10, at 2-3.

In late September, McCollum e-

mailed

recruiter,

Greg

Hartman,

a

Jacobs’

complaining

about

potentially losing his position “on false pretenses.” Def. Ex. 14.
Then, only days after the BOP sent its letter, McCollum made
similar complaints to Rhonda Reeves-Long (“Reeves-Long”) in Jacobs’
Human Resources Department.

Def. Ex. 15; Ex. 16.

Because Jacobs was contractually obligated to honor the BOP’s
demand that McCollum be removed from the Project, Jacobs began
interviewing for McCollum’s replacement.

Def. Ex. 3, at § E.6;

Def. Ex. 17, 22:6-23:3, 27:16-29:9 (Hume); Def. Ex. 10, at 2-3. On
October 14, 2009, the BOP approved Roy Steege as McCollum’s
replacement on the Aliceville Project.
On

October

19,

2009,

Jacobs

2

Def. Ex. 19.

removed

McCollum

from

“Construction Management Firm,” i.e. Jacobs Project
Management Co. See Def. Ex. 3 (“Statement of Work”), ¶ A.1.
5

the

Aliceville Project and, consistent with company policy, placed him
on Company Convenience Leave (“CCL”), an unpaid leave of absence,
for sixty days.

Def. Ex. 20; Def. Ex. 21.

McCollum was informed

that CCL was for those “who are temporarily without billable work,”
and that Jacobs “cannot guarantee reinstatement.”

Def. Ex. 20.

Pursuant to Jacobs’ policy, “[i]f [an] employee cannot be returned
to active status upon the end of the Company Convenience Leave,”
then his “employment will be terminated.”

Def. Ex. 21.

McCollum does not recall applying for another position with
Jacobs.

Def. Ex. 2, at 156:5-157:20 (McCollum).

He informally

contacted several project managers, but none was aware of an open
position at that time.

Id., at 157:21-158:19, 172:8-22.; Compl. ¶

26. These Jacobs managers confirmed that “things [we]re slow,” and
they actually had some “soft spots with several other personnel,”
given the scarcity of work.

Def. Ex. 22; Def. Ex. 23.

McCollum’s CCL period expired on December 19, 2009.

Pursuant

to company policy, because he failed to obtain another billable
position, McCollum was laid off effective December 20, 2009.
Ex. 24.

Def.

In March of 2010, McCollum was hired by the U.S. Army

Corps of Engineers, where he remains employed today.

Def. Ex. 2,

23:15-26:11 (McCollum).
On July 7, 2010, McCollum filed a federal qui tam complaint
under seal and served the same on the United States Attorney.

The

complaint alleged that Jacobs and others had conspired to certify,

6

approve and submit falsified change orders for payment by the
United States Government in violation of the False Claims Act. The
complaint also contained a claim for retaliatory discharge pursuant
to 31 U.S.C. § 3130(h).
The False Claims Act (“FCA”) may be enforced by the Attorney
General, or by a private person, known as a “relator,” who brings
a qui

tam

suit “for the person and for the United States

Government ... in the name of the Government.”
3730(a)&(b).

31 U.S.C. §

A qui tam suit is filed in camera and remains under

seal for sixty days.

31 U.S.C. § 3730(b)(2).

The relator must

present all material evidence to the Government.

During the sixty

days, the Government may intervene and proceed with the action
itself.

Id.

If the Government declines to intervene, the relator

may proceed on his own.
The

qui

tam

31 U.S.C. § 3730(b)(4)(B).

relator

is

also

protected

by

the

FCA’s

“whistleblower” provision, which provides relief to any employee
who suffers retaliation for bringing a claim under the FCA or
assisting an employee-relator who does so.

31 U.S.C. § 3730(h).

The whistleblower protection extends to any relator who brings a
claim in good faith, whether or not the claim is successful.

See

31 U.S.C. § 3730(h)(1)(“Any employee, contractor, or agent shall be
entitled to all relief necessary to make that employee, contractor,
or

agent

whole,

if

that

employee,

contractor,

or

agent

is

discharged, demoted, suspended, threatened, harassed, or in any

7

other manner discriminated against in the terms and conditions of
employment because of lawful acts done by the employee, contractor,
agent or associated others in furtherance of an action under this
section or other efforts to stop 1 or more violations of this
subchapter.”).
In

this

case,

the

Government

declined

to

intervene

in

McCollum’s qui tam action, and McCollum chose not to proceed on his
own.

The

necessarily

Government’s
indicate

that

decision
its

relator’s case had no merit.

not

to

decision

intervene

was

made

does

not

because

the

The Government may choose not to

intervene for any number of reasons.

Likewise, a plaintiff’s

decision not to proceed may be for reasons other than lack of
merit.

See Thompson v. Quorum Health Resources, LLC, 2010 WL

1904330, *5 (W.D. Ky. May 11, 2010).
On December 19, 2011, McCollum filed his Complaint against
Jacobs Engineering Group, Inc., and Jacobs Project Management Co.
On December 18, 2012, he filed his First Amended Complaint.

The

plaintiff asserts, in Count I, a claim for retaliatory discharge
pursuant to 31 U.S.C. § 3730(h), and, in Count II, a claim for
wrongful discharge under Alabama state law.
The defendants move for summary judgment. Summary judgment is
appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law.”

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

8

“A fact is ‘material’ if

its resolution in favor of one party might affect the outcome of
the lawsuit under governing law.

An issue is ‘genuine’ if the

evidence is sufficient for a reasonable jury to return a verdict
for the non-moving party.”

Ginsberg 1985 Real Estate P’ship v.

Cadle Co., 39 F.3d 528, 531 (5th Cir. 1994)(citations omitted). The
party moving for summary judgment bears the initial responsibility
of apprising the district court of the basis for its motion and the
parts of the record which indicate the absence of a genuine issue
of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986).
“Once the moving party presents the district court with a
properly supported summary judgment motion, the burden shifts to
the

non-moving

inappropriate.”

party

to

show

that

summary

judgment

is

Morris v. Covan World Wide Moving, Inc., 144 F.3d

377, 380 (5th Cir. 1998).

“The evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his
favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
But the nonmovant must “do more than simply show that there is some
metaphysical doubt as to the material facts.”

Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Moreover, “[t]he mere existence of a scintilla of evidence is
insufficient to defeat a properly supported motion for summary
judgment.”

Anderson, 477 U.S. at 252.

Summary judgment must be

rendered when the nonmovant “fails to make a showing sufficient to

9

establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.”

Celotex Corp., 477 U.S. at 322.

Several federal courts of appeals have held that, in the
absence of direct evidence of retaliation, the burden-shifting
analysis established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), should be applied to FCA retaliation claims, as it is
applied

to

most

federal

statutes

governing

employment

discrimination and retaliation claims. See Guerrero v. Total Renal
Care, Inc., 932 F.Supp.2d 769, 785 (W.D. Tex. 2013), and cases
cited therein.

Although the Fifth Circuit has not addressed this

question, several district courts in the Fifth Circuit have applied
the McDonnell Douglas framework. See id., and cases cited therein.
The parties in this action, as well as the Court, have already
assumed that McDonnell Douglas applies.

See McCollum v. Jacobs

Engineering Group, Inc., 2012 WL 3811750, *3 n.1 (S.D. Miss. Sept.
4, 2012).
McCollum does not present any direct evidence of retaliation.
To establish a prima facie case under 31 U.S.C. § 3730(h), he must
show (1) that he was engaged in protected activity with respect to
the FCA; (2) that his employer knew he was engaged in protected
activity; and (3) that he was discharged because he was engaged in
protected activity.
Fed.Appx.

259,

262

Thomas v. ITT Educational Serv’s., Inc., 517
(5th

Cir.

2013)(citing

10

Robertson

v.

Bell

Helicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994)).

The

plaintiff’s burden is not great: he “merely needs to establish
facts adequate to permit an inference of retaliatory motive.”
Forman v. Small, 271 F.3d 285, 299 (D.C. Cir. 2001).
If the employer successfully presents a legitimate, nonretaliatory reason for its actions, “the presumption raised by the
prima facie case is rebutted and drops from the case.”

St. Mary’s

Honor Center v. Hicks, 509 U.S. 502, 507 (1993)(internal citation
omitted); see also Brady v. Office of Sergeant at Arms, 520 F.3d
490, 494 (D.C. Cir. 2008)(noting that “the prima facie case is a
largely unnecessary sideshow”).

Upon such a showing by the

employer, the district court need only resolve one question: Has
the employee produced sufficient evidence for a reasonable jury to
find that the employer’s asserted non-retaliatory reason was not
the actual reason and that the employer intentionally retaliated
against

the

employee

protected activity?

because

of

the

employee’s

engaging

in

See Brady, 520 F.3d at 494 (posing similar

question in the context of a Title VII disparate treatment case).
In other words, to show pretext the employee must show both that
the reason was false, and that retaliation was the real reason.
See Weber v. Battista, 494 F.3d 179, 186 (D.C. Cir. 2007).

See

also St. Mary’s, 509 U.S. at 515 (“[A] reason cannot be proved to
be ‘a pretext for discrimination’ unless it is shown both that the
reason was false, and that discrimination was the real reason.”).

11

“A protected activity is one motivated by a concern regarding
fraud against the government.”

Thomas, 517 Fed.Appx. at 262

(citing Riddle v. Dyncorp Int’l, Inc., 666 F.3d 940, 941 (5th Cir.
2012)).

“The Fifth Circuit recognizes internal complaints that

‘concern false or fraudulent claims for payment submitted to the
government’ as protected activity under the Act, but requires that
the complaints raise concerns about fraud.”

George v. Boston

Scientific Corp., 864 F.Supp.2d 597, 605 (S.D. Tex. 2012)(citing
Patton v. Shaw Serv’s., L.L.C., 418 Fed.Appx. 366, 372 (5th Cir.
2011); and Robertson, 32 F.3d at 952)).

Moreover, in Robertson,

the Fifth Circuit held that an employee, whose job description
included

substantiating

costs

his

employer

was

charging

the

government, must do more than merely question his supervisors about
noncompliance.

Robertson, 32 F.3d at 951-52.

In Robertson, the

plaintiff “gave no suggestion that she was going to report such
noncompliance to government officials.”
Jacobs

points

out

that

Id. at 1523.

McCollum’s

job

duties

included

substantiating costs that would potentially be charged to the
government.

It also notes that because McCollum was responsible

for “contract compliance,” he had a heightened burden to prove that
he placed Jacobs on notice that “litigation was a reasonable
possibility.”

Jacobs’ Brief, p. 11 n.7 (quoting United States ex

rel. Schweizer v. Océ N.V., 677 F.3d 1228, 1240-41 (D.C. Cir.
2012)).

Jacobs contends that McCollum did not engage in any

12

protected activity.

In the alternative, it argues that even if

McCollum did engage in protected activity, he did not make a
complaint to anyone beyond his direct supervisors until after the
BOP ordered his removal; thus, he did not provide Jacobs with
notice of any protected activity.

Id., citing United States ex

rel. Scott v. Metropolitan Health Corp., 375 F.Supp.2d 626, 644
(W.D. Mich. 2005)(where whistleblower is charged with “compliance
responsibilities,” the employer “must receive heightened notice
that employee intended to further a qui tam/FCA action rather than
merely warning the defendant of the consequences of its conduct”).
The Court finds that even if McCollum did engage in protected
activity, he did not provide sufficient notice to his employer, and
therefore he cannot show that he was discharged because of any
protected activity. Alternatively, even if he could meet the first
two elements of a prima facie case, he has not provided sufficient
evidence to permit an inference of a retaliatory motive.
In addition, the Court assumes, arguendo, that the plaintiff
can make a prima facie case, and proceeds to the next phase of the
McDonnell Douglas analysis.

The Court finds that Jacobs has

submitted a body of evidence indicating grounds for termination
wholly

independent

plaintiff.

of

Jacobs’

any

alleged

legitimate

protected

activity

non-retaliatory

of

reason

the
for

termination is two-fold: (1) the contract between the BOP and
Jacobs provided that the BOP could, at any time and at its sole

13

discretion, require the removal of any Jacobs employee working on
the Aliceville Project; and (2) no other position was available for
McCollum during the time he was on CCL.
The “Statement of Work,” which is the contract between the BOP
and Jacobs, provides in Section E (“Basic Services”):
The BOP reserves the right to require a change or
replacement of CMF3 personnel if, in the judgment of both
the PM4 and PCO-CMF5, the staff member fails to
satisfactorily perform his/her duties and/or otherwise
demonstrates it is in the best interests of the
Government to replace the CMF staff member.
Def. Ex. 3 (“Statement of Work”), ¶ E.6.

Therefore, removal of a

Jacobs employee from the Project is solely at the discretion of the
BOP, with no input from Jacobs.
As for the second part of its non-retaliatory reason, Jacobs
provides evidence that shows McCollum was placed on CCL in keeping
with company policy, and that Jacobs tried to find him a position
during the 60-day period, but no work was available.

Def. Ex. 20;

Def. Ex. 5, 102:18-103:2 (Reeves-Long); Def. Ex. 2, 202:11-17,
206:2-6, 210:25-211:11 (McCollum); Def. Ex. 8, 183:12-20 (Paul);
Def. Ex. 22; Def. Ex. 23; Def. Ex. 26.

3

McCollum’s employment with

See footnote 2.

4

“Project Manager”: “A BOP employee located in the Central
Office assigned the overall responsibility for and authority over
the project for which services under this Contract are to be
provided.” Def. Ex. 3 (“Statement of Work”), ¶ C.5.e.
5

“Project Contracting Officer”: “The employee of the BOP
designated as the Contracting Officer for this Contract.” Def.
Ex. 3 (“Statement of Work”), ¶ C.5.a.
14

Jacobs was also terminated according to company policy, which
provides: “[i]f [an] employee cannot be returned to active status
upon

the

end

of

the

Company

Convenience

“employment will be terminated.”

Leave,”

Def. Ex. 21.

then

his

Furthermore, the

evidence shows that Jacobs was considering hiring McCollum for
another project as late as February of 2010 (after McCollum’s CCL
had expired), but McCollum took a job with the Army Corps of
Engineers.
The

Def. Ex. 26; Def. Ex. 2, 23:15-26:11 (McCollum).

Fifth

Circuit

Court

of

Appeals

addressed

a

similar

scenario in Okoye v. Univ. of Texas Houston Health Science Cntr.,
245 F.3d 507 (5th Cir. 2001), a Title VII discrimination case.

The

plaintiff (“Okoye”) was employed by a Health Center (“the Center”)
which had a contract with a County Sheriff’s Department to provide
medical personnel for detention facilities.

Section 6(c) of the

contract provided that the Sheriff had the ultimate decision-making
authority

regarding

facilities.

who

Id. at 510.

was

allowed

access

to

the

detention

The Sheriff’s Department invoked its

right to bar Okoye from the jail.

After unsuccessfully searching

for another position for the plaintiff, the Center informed her
that her employment was terminated.
The plaintiff sued her employer, alleging race discrimination
under Title VII, and claiming that the Center discriminated against
her by accepting the Sheriff’s invocation of §6(c) and terminating
her employment.

Id. at 511.

The plaintiff contended that the

15

Center knew or should have known that the Sheriff’s Department was
discriminating against her.

Id. at 512.

The district court granted summary judgment in favor of the
Center, and the plaintiff appealed.

The Fifth Circuit affirmed,

finding:
[The Center] asserts that Okoye was removed from the
jail assignment after the Sheriff invoked § 6(c) of the
contract.
Section 6(c) did not afford [the Center]
discretion to retain an employee at the jail whom the
Sheriff had barred from the jail.
Furthermore, [the
Center] claims that Okoye was not retained in another
capacity at [the Center] because an alternative position
was not available.
[The Center’s] reason for not
retaining Okoye was clear and specific - [the Center] was
contractually obliged to defer to the Sheriff’s
invocation of § 6(c) - and, therefore, [the Center] has
met its burden of production.
Id. at 513.
The Court of Appeals noted that Okoye was required to raise a
genuine issue of material fact that the Center discriminated
against

her

-

either

by

providing

direct

evidence

of

discrimination, or “by proving that an issue of material fact
exists through circumstantial evidence, i.e., by demonstrating that
an issue exists that [“the Center’s”] proffered reason is a pretext
for discrimination.”

Id.

Okoye was unable to provide any evidence that the reason
provided

by

the

Health

Center

was

false.

She

nevertheless

contended that the Center was liable for discrimination because it
was

“complicit”

in

invocation of § 6(c).

the

Sheriff’s

allegedly

discriminatory

The Fifth Circuit found, however, that the
16

plaintiff had failed to produce any evidence of complicity, had
otherwise failed to raise an inference of discrimination, and had
not met her burden to produce evidence that the Center’s reliance
on §6(c) was a pretext for discrimination.

Id. at 515.

In this case, Jacobs has articulated what is unquestionably a
legitimate, non-retaliatory reason for the plaintiff’s termination.
See Stage v. PPG Industries, Inc., 2011 WL 2532219, *7 (E.D. Tenn.
June 24, 2011)(“An employee’s inability to perform her job, because
she has been banned from entering a third party’s venue in which
she was to perform her job, is a legitimate, non-retaliatory reason
for termination.”).
In order to show pretext, the plaintiff must show that (1)
Jacobs’ proffered reasons for adverse actions had no factual basis;
(2) Jacobs’ proffered reasons did not actually motivate Jacobs’
actions; or (3) Jacobs’ proffered reasons were insufficient to
motivate the actions.

See id., citing Adair v. Charter Cnty. of

Wayne, 452 F.3d 482, 489-91 (6th Cir. 2006).

McCollum has not

meaningfully disputed the fact of Hainline’s dissatisfaction with
his job performance; nor does he argue that Hainline and the BOP
did not demand his removal from the job. The evidence submitted by
Jacobs shows that Hainline’s criticism of McCollum was a frequent
subject of concern and discussion among Hainline, McCollum, and
other Jacobs personnel.

The evidence further shows that Jacobs

attempted to repair the relationship between Hainline and McCollum

17

prior to McCollum being removed by the BOP.

McCollum has not

produced any evidence to indicate any complicity on Jacobs’ part
concerning any allegedly retaliatory action by Hainline and/or the
BOP.
Nor has McCollum produced any evidence of a “conspiracy” to
retaliate against him, to which he alludes on pages 32-33 of his
brief.

The

elements

of

a

claim

for

civil

essentially the same in Alabama and Mississippi.

conspiracy

are

See Peters v.

Amoco Oil Co., 57 Supp.2d 1268, 1284 (M.D. Ala. 1999)(citing
Haapanen v. Bogle, 643 So.2d 547, 551 (Ala. 1994), and Shaw v.
Burchfield, 481 So.2d 247 (Miss. 1985)).

The elements of a civil

conspiracy are: “(1) two or more persons or corporations; (2) an
object to be accomplished; (3) a meeting of the minds on the object
or course of action; (4) one or more unlawful overt acts; and (5)
damages as the proximate result.”

Gallagher Bassett Serv’s., Inc.

v. Jeffcoat, 887 So.2d 777, 786 (Miss. 2004).

McCollum fails to

identify whom he alleges took part in the conspiracy; nor does he
provide evidence of any meeting of the minds or any unlawful overt
acts.

He has simply made highly conclusory and unsupported

allegations of a conspiracy.

“There is no actionable conspiracy

... where all that is shown is the exercise in a lawful manner of
a right to terminate a contract.”

Shaw, 481 So.2d at 255.

In

other words, there is no conspiracy if the underlying cause of
action is not viable.

Allied Supply Co., Inc. v. Brown, , 585

18

So.2d 33, 36 (Ala. 1991).
Nor has McCollum produced any evidence to indicate that
Jacobs’ process in abiding by its contract with the BOP was a sham
and that Jacobs was not actually motivated by its stated reasons.
Similarly, McCollum has not produced any evidence to show that
Jacobs did not make a good faith effort to find him another
position with the company.

There are no “smoking guns” suggesting

that Jacobs terminated McCollum for retaliatory reasons.

Nothing

in the record suggests that Jacobs’ proffered reasons did not
actually motivate its actions.

Finally, McCollum cannot show that

Jacobs’ proffered reasons, if true, were insufficient to justify
his termination.

Viewing the evidence in the light most favorable

to the plaintiff, the Court finds that he cannot show that Jacobs’
legitimate, non-retaliatory reasons are pretextual.

The Court

therefore finds that the plaintiff has failed to raise any genuine
issues of material fact as to his FCA retaliatory discharge claim
against Jacobs, and summary judgment in favor of Jacobs is proper.
As to Jacobs Engineering Group, Inc., uncontested evidence in
the record shows that Jacobs Project Management Co. is a whollyowned subsidiary of Jacobs Engineering Group, Inc., and that Jacobs
Project Management, not Jacobs Engineering Group, was McCollum’s
employer.

Since Jacobs Engineering Group was not the plaintiff’s

employer, it is entitled to summary judgment on that basis.
As for McCollum’s wrongful discharge claim under Alabama state

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law, “[t]he bedrock principle of Alabama employment law is that, in
the absence of a contract providing otherwise, employment in this
state is at-will, terminable at the will of either party.”

Ex

parte Amoco Fabrics & Fiber Co., 729 So.2d 336, 339 (Ala. 1998). In
some cases, a “policy contained in an employee manual issued to an
employee” can “become a binding promise once it is accepted by the
employee.”

Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725, 733

(Ala. 1987).

For such an implied contract to arise, first, “the

language used in the handbook [or policy manual] must be specific
enough to constitute an actual offer rather than a mere general
statement of policy.”

Id. at 734 (citation omitted).

“If the

provision in the manual meets the contractual requirements for an
offer,

then

[the

Court]

must

determine

whether

the

evidence

indicates that the offer was communicated to the employee[ ] ....”
Ex parte Amoco Fabrics, 729 So.2d at 339.

If so, then the Court

should “determine whether ... the employee[ ] accepted the offer by
continuing [his] employment after becoming aware of the offer.”
Id.
McCollum asserts that Jacobs’ Corporate Policy Concerning
Business Conduct, Integrity, and Ethics (“the Policy”) constituted
an implied employment contract which Jacobs breached when it
terminated

him.

The

Policy

was

referenced

in

the

Employee

Acceptance Statement which Jacobs signed when he accepted his offer
of employment with Jacobs.

Compl. Ex. 1, p. 3 (“As a further

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condition of your employment, on your first day of employment, you
will be asked to ... read the Jacobs Corporate Policy concerning
Business

Conduct,

Compliance.

and

sign

a

Statement

of

Understanding

and

Copies of those documents are attached for your

review.”). The Policy “is intended to serve as a source of guiding
principles” and covers such topics as business conduct, antitrust
compliance, the use of inside information, procurement integrity,
and government investigations.

Compl. Ex. 2, § 1.0.

McCollum

relies primarily upon the following provisions:
We encourage employees to talk to supervisors, managers,
and other appropriate personnel when in doubt about the
best course of action in a particular situation and to
report violations of laws, rules and regulations to
appropriate personnel or through the Integrity Hot Line.
The Company does not tolerate retaliation for reports
made in good faith.
Employees are required to report the following matters to
the General Counsel:
...
6. Incorrect or defective cost or pricing data on public
sector projects.
...
11. Any suspected violation of procurement laws or any
Company policy ...
...
All employees have a moral, and in some cases, a legal
obligation to call the Company’s attention to any
situation in which any Company policy may not be
observed.
No discipline or other retaliatory action
shall be taken against any employee informing the Company
of any violations of any Company policy.

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Id., §§ 1.0, 14.0, 15.2.

This last provision is comparable to

language the Alabama Supreme Court has found sufficiently definite
to create an employment contract.

See, e.g., Ex parte Amoco

Fabrics, 729 So.2d at 337–38 (“Whenever it is necessary to reduce
the number of employees within a job classification the employee
within that classification with the least job seniority will be
reduced from that job.”); Hoffman-La Roche, Inc., 512 So.2d at
736–37 (concluding that handbook language setting forth procedures
governing the “five types of termination” was “clear enough that an
employee reading it could reasonably believe that, as long as he
worked within the guidelines set out in the handbook, he would not
be terminated until all procedures set out in the handbook had been
followed, including the reasons and circumstances for termination
in the handbook”).

The language is readily understood “as a

promise not to dismiss” in retaliation for whistleblowing. Campisi
v. Scoles Cadillac, Inc., 611 So.2d 296, 299 (Ala. 1992).

It is

undisputed that the provisions were communicated to McCollum, who
accepted the offer by accepting and continuing his employment. See
Ex parte Amoco Fabrics, 729 So. 2d at 339-40.
McCollum’s claim for wrongful discharge fails, however, for
the same reason his FCA retaliation claim fails.

Even if he can be

said to have reported violations of laws, rules or regulations to
Jacobs, he has not shown that his employment was terminated in
retaliation for such reporting.

Therefore, Jacobs is entitled to

22

summary

judgment

on

McCollum’s

state

law

claim

for

wrongful

discharge.
Accordingly,
IT IS HEREBY ORDERED that the defendants Jacobs Engineering
Group, Inc., and Jacobs Project Management Co.’s Motion for Summary
Judgment (docket entry 57) is GRANTED as to the plaintiff’s claim
for retaliatory discharge pursuant to 31 U.S.C. § 3730(h), and as
to the plaintiff’s claim for wrongful discharge under Alabama state
law.

A final judgment dismissing the plaintiff’s claims with

prejudice shall follow.
SO ORDERED, this the 21st day of January, 2014.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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