McCollum v. Jacobs Engineering Group, Inc.

Filing 21

ORDER granting in part and denying in part Motion to Dismiss and for Summary Judgment 15 . Signed by Honorable David C. Bramlette, III on 9/4/2012 (PL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
SCOTTY MCCOLLUM
PLAINTIFF
v.

CIVIL ACTION NO. 5:11-cv-177-DCB-RHW

JACOBS ENGINEERING GROUP, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
This False Claims Act retaliation case is before the Court on
Defendant’s Motion to Dismiss and for Summary Judgment [docket
entry no. 15]. The Court, having reviewed the submissions of the
parties and the applicable law, concludes that Plaintiff has
properly pleaded his claims and is entitled to discovery before
defending them on a motion for summary judgment. However, because
he

has

abandoned

his

state-law

claims

for

extra-contractual

damages, those will be dismissed. The motion will therefore be
granted in part but otherwise denied.
I. Facts and Procedural History
In the summer of 2008, Defendant Jacobs Engineering Group,
Inc., won a contract to provide “construction management services”
for the construction of a new federal women’s correctional facility
in Aliceville, Alabama. Jacobs contracted with the Federal Bureau
of Prisons (FBOP) to provide “‘checks and balances’ type services
related to” the construction of the prison by CaddellYates. Compl.
¶ 11, docket entry no. 1. In October 2008, Jacobs hired Plaintiff
Scotty McCollum as a resident field engineer in its Aliceville

office. One of McCollum’s principal employment tasks was to produce
Independent Government Estimates (IGEs) that were then used to
assess the appropriateness of costs contained in Modification
Proposal Requests (MPRs) submitted by CaddellYates. In working on
the IGEs, McCollum concluded that CaddellYates’s pricing on its
MPRs “was falsified and/or grossly inflated,” and he informed his
supervisor and Jacobs’s off-site management personnel of that
conclusion. Id. ¶¶ 20, 26.
Thereafter, Jacobs placed McCollum on a temporary leave of
absence and ultimately terminated McCollum’s employment. McCollum
filed this lawsuit on December 19, 2011, alleging that he was
terminated in retaliation for engaging in protected activity under
the False Claims Act (FCA), 31 U.S.C. §§ 3729–3733, and that his
termination

constituted

wrongful

discharge

under

Alabama

law.

Jacobs moved to dismiss and for summary judgment, arguing that
McCollum

cannot

prove

the

necessary

causal

link

between

any

protected activity and his termination and that he fails to state
a claim for wrongful termination under Alabama law. The Court has
personal and subject matter jurisdiction and is prepared to rule.
II. Standard
As Jacobs has moved for relief under Rules 12(b)(6) and 56 of
the Federal Rules of Civil Procedure, two different standards are
implicated. In considering a motion under Rule 12(b)(6), the “court
accepts ‘all well-pleaded facts as true, viewing them in the light

2

most favorable to the plaintiff.’” Martin K. Eby Constr. Co. v.
Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)
(quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).
However, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To overcome a Rule 12(b)(6)
motion, a plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570.
“Factual allegations must be enough to raise a right to relief
above the

speculative

level, on

the

assumption

that

all

the

allegations in the complaint are true (even if doubtful in fact).”
Id. at 555 (citations and footnote omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for

the

misconduct

alleged.”

Iqbal,

556

U.S.

at

678.

The Supreme Court’s examination of the issue in Iqbal provides
a framework for examining the sufficiency of a complaint. First,
the district court may “begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the
assumption of truth.” Id. Second, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity and then

3

determine whether they plausibly give rise to an entitlement to
relief.” Id.
Summary judgment is apposite “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. Pro. 56(a).
“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

party

to

show

that

summary

judgment

is

inappropriate.” 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.

4

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
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.
III.Analysis
A. FCA Retaliation Claim
“The FCA prohibits any person from making false or fraudulent
claims for payment to the United States.” Graham Cnty. Soil & Water
Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409,
411 (2005). The statute provides “a private cause of action for an
individual retaliated against by his employer for assisting an FCA
investigation or proceeding.” Id. at 412. Specifically, the statute
provides:
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 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.
31 U.S.C. § 3730(h)(1) (emphasis added).
Jacobs

does

not

appear

to
5

challenge

the

sufficiency

of

McCollum’s retaliation claim under Rule 12(b)(6). Nor does it
suggest that McCollum’s internal complaints were not protected
activity under the FCA. Def.’s Mem. at 5 n.4, docket entry no. 16.
(assuming “for purposes of this Motion only, that Plaintiff has
adequately

alleged”

a

prima

facie

case

of

retaliation);

see

Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 951 (5th
Cir. 1994) (suggesting that internal complaints may, under some
circumstances, be protected activity under the FCA). Rather, Jacobs
has submitted evidence of a legitimate, non-retaliatory reason for
terminating

McCollum:

the

FBOP

customer

demanded

McCollum

be

replaced. See Paul Decl., docket entry no. 15-1. Jacobs argues
that, in light of this evidence, no reasonable factfinder could
conclude that it terminated him “because of his whistleblower
activities.”

Def.’s

Mem.

¶

2.

In

response,

McCollum

argues

alternatively (1) that he “ought to have had a fair opportunity to
engage in discovery in order to develop his proof” before being
required to defend against Jacobs’s motion for summary judgment and
(2) that his affidavit and attachments thereto create genuine
issues of material fact as to the causal link between his protected
activity and his termination. Pl.’s Mem. at 6, 11–12, docket entry
no. 18. Because the Court concludes that McCollum, having properly
pleaded a retaliation claim under the FCA, is entitled to discovery
prior

to

the

Court’s

judgment,

it

need

not

consideration
assess

the

6

of

a

motion

substantive

for

summary

arguments

on

causation.1
Federal Rule of Civil Procedure 56(d) provides:
If a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential
to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). Rule 56(d) discovery motions are “broadly
favored and should be liberally granted.” Culwell v. City of Fort
Worth, 468 F.3d 868, 871 (5th Cir. 2006); see also Wichita Falls
Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 n.4 (5th Cir.
1992) (“Such ‘continuance of a motion for summary judgment for
purposes of discovery should be granted almost as a matter of
course’ unless ‘the non-moving party has not diligently pursued
discovery of the evidence.’”) (quoting International Shortstop,
Inc. v. Rally’s, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991)).
“[W]hen a party is seeking discovery that is germane to the pending
summary judgment motion it is inequitable to pull out the rug from

1

Both parties assume that the McDonnell Douglas burdenshifting framework applicable in employment discrimination cases
applies to Plaintiff’s FCA retaliation claim and establishes the
parameters for proving causation here. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802–05 (1973). Other courts have so held.
See Harrington v. Aggregate Industries Ne. Region, Inc., 668 F.3d
25, 31 (1st Cir. 2012); Scott v. Metropolitan Health Corp., 234 F.
App’x 341, 346 (6th Cir. 2007); Turner v. DynMcDermott Petroleum
Operations Co., No. 06-1455, 2010 WL 4363403, at *2 (E.D. La. Oct.
21, 2010).
7

under them by denying such discovery.” Wichita Falls, 978 F.2d at
920.

A

plaintiff

seeking

discovery

under

Rule

56(d)

“must

demonstrate (1) why he needs additional discovery, and (2) how the
additional discovery will likely create a genuine issue of material
fact.” Chenevert v. Springer, 431 F. App’x 284, 287 (5th Cir. 2011)
(citation omitted). While McCollum’s submissions are not specific
as to the way in which discovery “will likely create a genuine
issue of material fact,” the Court is satisfied that McCollum is
entitled to discovery under Rule 56(d). See Nationwide Mut. Fire
Ins. Co. v. Sea Breeze Condominiums, No. 1:10cv298-HSO-JMR, 2011 WL
1561014, at *2 (S.D. Miss. Apr. 22, 2011) (“[W]hen a party files a
brief opposing the motion for summary judgment and informs the
court of the need for additional discovery, these documents can
combine to serve ‘as the functional equivalent’ of a Rule 56[(d)]
motion.”) (citations omitted).
This case is in its infancy. Jacobs has not yet answered the
Complaint, no Local Rule 16(a) Initial Order has been entered, the
parties have not exchanged their Local Rule 26(a)(1) initial
disclosures or engaged in any other discovery, and the Local Rule
16(e) Case Management Conference has yet to take place. Having
properly

pleaded

his

FCA

claim,

McCollum

is

entitled

to

“a

reasonable opportunity to prepare the case” before having to
support that claim with evidence sufficient to withstand a motion
for summary judgment. 10B Charles Alan Wright & Arthur R. Miller,

8

Federal Practice & Procedure § 2741 (3d ed.); see Hickman v.
Taylor, 329 U.S. 495, 501 (1947) (“The various instruments of
discovery now serve . . . as a device for ascertaining the facts,
or

information

as

to

the

existence

or

whereabouts

of

facts,

relative to th[e legal] issues.”); Fed. R. Civ. P. 26, cmt. to 1946
amendment (“The purpose of discovery is to allow a broad search for
facts, the names of witnesses, or any other matters which may aid
a party in the preparation or presentation of his case.”). Put
simply, Jacobs’s motion for summary judgment is premature. The
motion will therefore be denied without prejudice to Jacobs’s right
to move for summary judgment once McCollum has had an opportunity
to conduct discovery.
B. Wrongful Discharge Claim
McCollum has also asserted a state-law claim for wrongful
discharge. He alleges that Jacobs terminated his employment in
violation of an employment contract between the parties. Jacobs, on
the other hand, contends that the document relied upon by McCollum
did not alter McCollum’s employment-at-will status and that his
wrongful discharge claim is therefore not cognizable under Alabama
law. The parties agree that Alabama law governs McCollum’s statelaw claim.
“The 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

9

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’s Corporate Policy Concerning
Business Conduct, Integrity, and Ethics (the Policy) constituted an
implied employment contract that Jacobs breached when it terminated
him for reporting his suspicions about the IGE process.2 Compl. Ex.

2

The Court construes Jacobs’s Motion as to the wrongful
discharge claim as challenging the sufficiency of the pleading
under Rule 12(b)(6). See Def.’s at 10 ¶ 2 (“[McCollum’s] Complaint
fails to state a claim under Alabama state law.”). In ruling on a
Rule 12(b)(6) motion, the Court “should focus exclusively on what
appears in the complaint and its proper attachments.” Wilson v.
Birnberg, 667 F.3d 591, 595 (5th Cir. 2012) (citation omitted).
McCollum attached to his Complaint all of the pertinent documents,
and those are therefore properly before the Court.
10

2.

That

document

was

referenced

in

the

Employee

Acceptance

Statement Jacobs signed when he accepted his offer of employment
with Jacobs. Id. Ex. 1 at 3 (“As a further condition of your
employment, on your first day of employment, you will be asked to
. . . read the Jacobs Corporate Policy concerning Business Conduct,
and sign a Statement of Understanding and Compliance. 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. Id. Ex. 2 at 2 § 1.0. In making his argument,
McCollum relies primarily upon three 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.
Id. (emphasis added).
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 . . . .
Id. at 16–17 § 14.0.
11

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.
Id.

at

17

§

comparable

15.2

to

(emphasis

language

the

added).
Alabama

This

final

Supreme

statement

Court

has

is

found

sufficiently definite to create an employment contract. E.g., Ex
parte

Amoco

necessary

Fabrics,

to

729

So.

2d

at

337–38

(“Whenever

reduce

the

number

of

employees

within

it
a

is
job

classification the employee within that classification with the
least

job

seniority

will

be

reduced

from

that

job.”);

see

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). And there is no
question that it was communicated to McCollum, who accepted the
offer by (1) accepting employment, and (2) engaging in the sort of
whistleblowing contemplated by the Policy. See Ex parte Amoco
Fabrics, 729 So. 2d at 339. As such, under Hoffman-La Roche, the
12

elements necessary for the Policy to constitute a contract are
present, and McCollum states a claim for wrongful discharge under
Alabama law.3
However, as Jacobs points out, extra-contractual and punitive
damages are typically not available in breach of contract cases
under Alabama law. See Nobles v. Rural Cmty. Ins. Servs., 303 F.
Supp. 2d 1292, 1301 (M.D. Ala. 2004). And McCollum failed to
address

this

point

in

response

to

Jacobs’s

motion,

thereby

abandoning any claim for these damages. See Black v. N. Panola Sch.
Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (“[Plaintiff’s]
failure to pursue this claim beyond [the] complaint constituted
abandonment.”). As such, the motion to dismiss will be granted as
to McCollum’s state-law claims for extra-contractual damages.
IV.Conclusion
The Court has considered all of the parties’ arguments. Those
not addressed would not change the result. For the foregoing
reasons, IT IS HEREBY ORDERED THAT Defendant’s Motion to Dismiss
and for Summary Judgement [docket entry no. 15] is GRANTED as to
the state-law claims for extra-contractual damages but otherwise
DENIED. The parties are instructed to contact the magistrate judge
to set the case for an initial case management conference.

3

The claim is, in actuality, one for breach of the contract
of employment. See Ex Parte Amoco Fabrics, 729 So. 2d at 341
(concluding that employment policy constituted a contract and that
“such a contract should be enforced”).
13

So ORDERED, this the 4th day of September, 2012.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

14