McNerney v. Lockheed Martin Operations Support, Inc. et al

Filing 87

ORDER granting 65 Defendant Lockheed's motion for summary judgment. Signed on 6/12/12 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
BARBARA McNERNEY,
Plaintiff,
v.
LOCKHEED MARTIN OPERATIONS
SUPPORT, INC., and
PARSONS CORPORATION,
Defendants.

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No. 10-0704-CV-W-DGK

ORDER GRANTING SUMMARY JUDGMENT
This case arises out of Plaintiff Barbara McNerney’s employment relationship with
Defendants Lockheed Martin Operations Support, Inc., and Parsons Corporation, private
contractors with the Federal Aviation Administration (“FAA”).

Plaintiff alleges she was

terminated by Defendants in retaliation for complaining to her supervisors about billing practices
which violated the federal False Claims Act. Count Two, the sole remaining count in this case,
alleges she was fired in violation of the “whistleblower” public policy exception to Missouri’s atwill employment rule.
Now before the Court is Lockheed’s Motion for Summary Judgment (Doc. 65).
Lockheed argues McNerney has not alleged a sufficiently serious violation of the FCA to
establish such a “whistleblower” claim. Finding that McNerney cannot establish an objectively
reasonable belief that the billing policies she reported were “serious misconduct” that constituted
“a violation of the law and of well established and clearly mandated public policy” as required
by the Missouri Supreme Court in Margiotta v. Christian Hospital Northeast Northwest,
Lockheed’s motion is GRANTED.

Choice of Law and Subject Matter Jurisdiction
As the Court noted in its order denying Defendants’ motion to dismiss, Missouri law
provides the applicable rule of decision in this case.

Additionally, although Plaintiff has

dismissed the parties who removed this case from state court, the United States and Don Sorter,
the Court retains subject matter jurisdiction to hear this dispute pursuant to Osborn v. Haley, 549
U.S. 225, 243-45 (2007).
Summary Judgment Standard
A moving party is entitled to summary judgment “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). A party who moves for summary judgment bears the
burden of showing that there is no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986).

When considering a motion for summary judgment, a court

must scrutinize the evidence in the light most favorable to the nonmoving party, and the
nonmoving party “must be given the benefit of all reasonable inferences.” Mirax Chem. Prods.
Corp. v. First Interstate Commercial Corp., 950 F.2d 566, 569 (8th Cir. 1991) (citation omitted).
To establish a genuine issue of fact sufficient to warrant trial, the nonmoving party “must
do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the
nonmoving party must set forth specific facts showing there is a genuine issue for trial.
Anderson, 477 U.S. at 248. But the nonmoving party “cannot create sham issues of fact in an
effort to defeat summary judgment.” RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d
399, 402 (8th Cir. 1995) (citation omitted).

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Factual Background
For purposes of resolving the pending motion, the Court finds the facts to be as follows.
Properly controverted facts, facts immaterial to the resolution of the pending motion, and
argument presented under the guise of facts have been omitted.
1.

Plaintiff McNerney’s employment with the FAA and its contractors
Plaintiff Barbara McNerney (“McNerney”) began working for the Federal Aviation

Administration (“FAA”) in 1960 as a draftsman. In approximately 1975, McNerney voluntarily
left the FAA, although she continued performing drafting work from home on an as-needed
basis.
The FAA has contracted with private companies to provide the United States National
Airspace System (“NAS”) infrastructure to support all air operations within the United States
and certain oceanic areas. This responsibility ranges from air traffic control, system security,
and safety to international coordination. The FAA has a Technical Services Support Contract
(“TSSC”) under which it contracts with private companies for such services. By 1991, the FAA
was utilizing drafters under a series of contracts, including the TSSC. Under these contracts,
various companies contracted or subcontracted with the FAA to provide technical support
services, and drafters were directly employed by the contractors and subcontractors rather than
the FAA. The FAA is currently on the third TSSC contract which it awarded in 2001 or 2002 to
Defendant Parsons Corporation (“Parsons”). Under this contract, Parsons is the prime contractor
for the FAA, while Defendants Lockheed Martin Operations Support, Inc. (“Lockheed”) works
with Parsons as a subcontractor.
McNerney did not provide drafting services to the FAA from 1991 to 1993. In 1994, the
FAA was shifting towards national contracts and requested that McNerney go to work for

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Lockheed in the FAA Drafting Department at the FAA’s offices in Kansas City. Her work in the
FAA Drafting Department was under the NISC contract,1 another FAA contract for private
services that had been awarded to Lockheed.
McNerney’s employment with Lockheed ended in 2002, when the FAA requested that
McNerney go to work for Advancia Corporation (“Advancia”), another contractor.

In

approximately 2005, while employed by Advancia, McNerney’s primary function switched from
performing manual drafting work to providing quality assurance or quality control work for the
FAA. Her duties involved reviewing engineering drawings as they passed through the drafting
department to ensure they were completed and met FAA standards.
In February of 2008, the FAA terminated McNerney’s quality control position under the
NISC contract because the FAA no longer had funding for this position. When the FAA
eliminated McNerney’s position on the NSIC contract, Don Sorter asked Lockheed to pick up
her position under the TSSC contract because he believed she provided value to the drafting
department that he did not want to lose. Lockheed had the funding under its contract to be able
to pick her up and hired her to perform the position of Quality Control in the TSSC Drafting
Department. Thus, McNerney’s employment shifted from Advancia back to Lockheed.
By this time, Parsons had become the prime contractor on the TSSC contract, and
Lockheed Martin was a subcontractor to Parsons. While McNerney’s job title was officially that
of a “drafter,” she was no longer performing any drafting work, and her job duties involved
quality control functions exclusively. One hundred percent of her time was charged to, and paid
for by, the FAA.

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The parties’ briefs do not explain what “NISC” is an abbreviation for.

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2.

McNerney’s friction with the FAA’s Don Sorter between 2004 and 2006
In approximately 2004, while an employee of Advancia, McNerney began to experience

work-related issues with Don Sortor, an FAA employee serving as the coordinator of the FAA’s
Computer-Aided Engineering Graphics Department (“CAEG”), a position McNerney held from
approximately 1994-1996 before Don Sortor took over the position. McNerney believes her
disputes with Sortor stemmed from a dispute between them as to the assignments and duties of
another employee, Holly Handschke.
In July 2005, McNerney complained that Don Sortor was not adhering to FAA policy and
procedure. The next day, under false pretenses, Sortor attempted to eliminate McNerney’s
position and terminate her employment.

McNerney subsequently received word from her

supervisor, Ivan Hunt, that the need for manual drafting no longer existed and her position was
therefore being eliminated. Hunt indicated the decision was based on information received from
Sortor. At that time, McNerney was an Advancia employee and did not perform any electronic
drafting, although she was capable of doing so, if properly trained.
FAA engineers responded to the announcement by expressing their belief that manual
drafting was still needed. They also praised McNerney’s performance. Sorter’s decision to
eliminate her position was subsequently reversed.
McNerney continued to assert that she was being treated inappropriately by Sortor, and in
May 2006, the FAA removed Sortor from McNerney’s chain of command. Sortor remained the
FAA drafting coordinator for the TSSC contract and continues to serves as the FAA contact
directing work to the drafting department.

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3.

McNerney complains of time charging directives
In 2008 and 2009, after being rehired by Lockheed, McNerney recorded her time worked

on the TSSC contract in three locations: her Lockheed time card, an FAA drawing management
system called Drafting Tracker, and a Lockheed spreadsheet.
On September 30, 2009, McNerney received several rolls of drawings for various
locations to be scanned into PowerWise, the document system for FAA engineering projects.
The drawings involved different projects at different locations. McNerney checked the drawings
and realized that numerous quality control problems needed to be resolved before the documents
could be entered into the system. McNerney, however, had not been given a tracker, work
release number or job charge number (“JCN”) to which she could record her time.
At this time, McNerney, although a Lockheed employee, followed a chain of command
made up entirely of Parsons employees for task-related matters. Jelani Agu-Nkosi, a Parsons
employee, was the day-to-day operations supervisor of the drafting department and McNerney’s
immediate supervisor.
When McNerney did not have a number to which she could charge her time in September
2009, she asked Agu-Nkosi for the charge information. Agu-Nkosi told McNerney that Sortor,
the FAA liaison for the contractors performing drafting work, had told him “to spread the hours
out among other projects.” Agu-Nkosi did not instruct McNerney to bill the time to any specific
projects.

McNerney told Agu-Nkosi that she could not hide seven hours of work, and that she

assumed her quality control hours were being “monitored.” The work McNerney needed to
perform with regard to the drawings was work that was properly chargeable to the FAA, and all
of her time was chargeable to the FAA.

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The following day, October 1, 2009, McNerney sent Agu-Nkosi an e-mail stating that she
still needed numbers to which she could charge the previous day’s work. Agu-Nkosi responded
by telling plaintiff that Sortor had asked her to charge time spent on the drawings to “Work
Release 97.”
Work Release 97 is a general work release to which employees working on the TSSC
contract could charge overhead and other non-specific time. At one point, drafters charged all of
their time to Work Release 97, but by 2009, the FAA revised its charging system by breaking
down the work performed into more specific “platforms,” with each platform having its own
work release numbers. This allowed the FAA to see how much a project cost and to ensure
project costs were approved and within budget. While employees in the drafting department
continued to utilize the general work release under some circumstances, the FAA directed them
to charge time to the more specific work release numbers for work on specific platforms.
Following this change, members of the drafting department expressed confusion about the new
procedure to charge their time.
Eventually, McNerney charged her time for the work on the multiple drawings to Work
Release 97.
On October 7, 2009, McNerney sent Agu-Nkosi another e-mail regarding five hours of
work she charged to a project for William Johnson, one of the FAA engineers, who had
complained about the amount of time McNerney spent on his project. In the e-mail, McNerney
explained she did two hours of quality assurance work, and another three hours, at least some of
which she believed was “to complete the documentation for the drawings,” which “is part of
quality control.”

In the same email she complained that “I have been told on numerous

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occasions to ‘spread out’ time spent on duties other than QA and attending meetings to projects
that have a JCN” and that she had “concerns for charging time.”
This episode was not an isolated incident. McNerney was told by others to “spread her
time” or “spread the cost” on numerous occasions. McNerney was concerned that spreading
charges out across various projects or a job other than the one for which the work was performed
was illegal and that it could lead to certain projects being overbilled.
McNerney had no knowledge, however, as to how Parsons and Lockheed Martin utilized
the information entered by her on time cards, spreadsheets, or other charging materials and
whether it affected the overall amount billed to, and paid by, the FAA.
4.

Plaintiff’s termination
After McNerney began questioning her time recording practices, Sortor contacted Conner

and Rich and informed them that the FAA no longer wished to fund McNerney’s position and
wanted quality control duties to be spread among the drafters. Defendants and the FAA began
raising bogus performance issues after she began complaining about time recording issues.
The precise circumstances and timing of McNerney’s termination are in dispute. The
parties agree that Agu-Nkosi was not a participant in the discussions with Sortor, Conner, Rich
or McNerney regarding the alleged “defunding” of her position.

Agu-Nkosi only learned

McNerney’s quality control position was being defunded from McNerney herself after she
already had been notified of the decision.
Conner and Rich instructed McNerney to report the following day to an office in Kansas
where other employees were working on the TSSC contract, explaining that they had a backlog
of clerical and administrative work with which McNerney could assist on a short-term basis. In
fact, there was no work to be done and McNerney sat in a cubicle there for four weeks.

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Following the defunding of McNerney’s position, Lockheed explored whether any other
positions were available that McNerney could perform. At the time of her separation from
employment, employees in the drafting department were no longer performing manual drafting,
and McNerney had no experience with computer-aided drafting. Although McNerney had not
been trained on the electronic drafting software, she could have learned it in two weeks.
McNerney was not interested in obtaining a clerical or administrative position with Lockheed.
On November 20, 2009, Lockheed informed McNerney that she was being laid off due to
the reduction in force initiated by the FAA effective December 4, 2009. Lockheed Martin
encouraged her to pursue job opportunities within the company by viewing and applying for
positions through a company Intranet system. McNerney searched but did not find any jobs
within her expertise and did not apply for any alternative positions.
On June 22, 2010, McNerney filed the present lawsuit in the Circuit Court of Jackson
County, Missouri, naming Lockheed, Advancia, Parsons, and Don Sorter as Defendants. The
Federal Government and Don Sorter subsequently removed the case to federal court. Plaintiff
then dismissed Don Sorter and Advancia, leaving only Lockheed and Parsons as Defendants.
Discussion
“The at-will employment doctrine is well-established Missouri law.”

Margiotta v.

Christian Hosp. Ne. Nw., 315 S.W.3d 342, 345 (Mo.2010) (en banc). “In the absence of an
employment contract with a definitive statement of duration of employment, ‘an employment at
will is created.’” Frevert v. Ford Motor Co., 614 F.3d 466, 470-71 (8th Cir. 2010) (quoting
Margiotta, 315 S.W.3d at 345). “An employer may terminate an at-will employee for any reason
or for no reason.” Margiotta, 315 S.W.3d at 345 (internal quotations and citations omitted). “As

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a matter of law, the discharged at-will employee has no cause of action for wrongful discharge.”
Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 91 (Mo.2010) (en banc).
This doctrine is not absolute, however. Margiotta, 315 S.W.3d at 346. “An employer
cannot terminate an at-will employee for being a member of a protected class, such as race,
color, religion, national origin, sex, ancestry, age or disability.” Id. Missouri also recognizes a
public-policy exception to the at-will employment doctrine. Id.
Where an employer has discharged an at-will employee because
that employee refused to violate the law or any well established
and clear mandate of public policy as expressed in the constitution,
statutes and regulations promulgated pursuant to statute, or
because the employee reported to his superiors or to public
authorities serious misconduct that constitutes violations of the law
and of such well established and clearly mandated public policy,
the employee has a cause of action in tort for damages for
wrongful discharge.
Fleshner, 304 S.W.3d at 91 (internal quotations, alteration, and citation omitted). Where a
plaintiff claims that she was wrongfully discharged for “reporting violations of law or public
policy,” she “must show that [s]he reported to superiors or to public authorities serious
misconduct that constitutes a violation of the law and of well established and clearly mandated
public policy.” Margiotta, at 346-47 (emphasis in original).

“[A] wrongful discharge action

must be based on a constitutional provision, a statute, a regulation based on a statute or a rule
promulgated by a governmental body.” Id., at 346. In the absence of “such explicit authority,
the wrongful discharge action fails as a matter of law.” Id.
To establish wrongful discharge in violation of public policy for “whistleblowing,” a
plaintiff must show (1) that the employer’s conduct “violated a law, regulation, or some other
clear statement of public policy;” (2) that the plaintiff “‘blew the whistle’ by reporting this
violation to a superior, decisionmaker, or public authorities;” and (3) that the reporting was a

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“contributing factor” to the employer’s decision to end the plaintiff’s employment. Bazzi v. Tyco
Healthcare Group, L.P., 652 F.3d 943, 947 (8th Cir. 2011).
Lockheed contends it is entitled to summary judgment because McNerney cannot
establish any of these elements. Specifically, it argues: (1) McNerney cannot show that the
directive to charge her time to the Work Release 97 code in the September 30, 2009 incident, or
to generally “spread the cost” in other, unspecified incidents, violated the False Claims Act
(“FCA”); (2) McNerney did not report the violation to a superior, decisionmaker, or public
authorities; and (3) McNerney cannot establish that that her whistleblowing had a causal
connection to her termination.
I.

McNerney can establish she reported the alleged violations to her supervisors.
The Court finds no merit to Lockheed’s second argument. As McNerney argues in her

brief, her own testimony clearly asserts that she complained about the alleged violations to her
supervisors numerous times. This is enough to survive summary judgment. The Court also
notes that Lockheed appears to have abandoned this argument in its reply brief by its silence on
this point. Accordingly, this portion of the motion is denied.
II.

McNerney can establish that her “whistleblowing” contributed to her termination.
The Court also holds that McNerney can establish by reasonable inference the third

element, that her “whistleblowing” was a contributing factor that led to her termination. As an
initial matter, McNerney is not required to show that her complaints were the sole cause, or even
a substantial factor, in her termination. She is only required to show it was a contributing factor.
Fleshner, 304 S.W.3d at 94-95.
Viewed in the light most favorable to McNerney, and giving her the benefit of all
reasonable inferences, the evidence on the record supports a finding that McNerney always had

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good performance reviews until she began raising her concerns about how she should record her
time. Shortly thereafter, her position was eliminated and she was exiled to a do-nothing position
for a month while Lockheed, in conjunction with Sorter, prepared to terminate her under the
guise of a reduction in force. While there were probably other reasons she was terminated,
including her long-standing poor relationship with Don Sorter, a reasonable jury could find that
her whistleblowing was at least a contributing factor in her dismissal.
Accordingly, this portion of the motion is denied.
III.

Plaintiff cannot establish serious misconduct that constitutes a violation of law.
The one element of a whistleblowing claim McNerney cannot establish, however, is that

the billing practices she complained about violated a law, regulation, or some other clear
statement of public policy. As noted above, where a plaintiff claims that he was wrongfully
discharged for “reporting violations of law or public policy,” she “must show that [s]he reported
to superiors or to public authorities serious misconduct that constitutes a violation of the law and
of well established and clearly mandated public policy.” Margiotta, at 346-47 (emphasis in
original). The plaintiff bears the burden of showing not only that he had a good-faith belief that
the employer was violating a public policy, but “that this good-faith belief was an objectively
reasonable one.” Bazzi, 652 F.3d at 948.
McNerney contends that the misconduct she complained of here violated the public
policy behind the False Claims Act, which is to protect the United States from materially false or
fraudulent attempts to cause it to pay out money. Costner v. URS Consultants, Inc., 153 F.3d
667, 677 (8th Cir. 1998).2 McNerney has identified two practices here that she contends violated

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Although the text of the statute imposes liability on “[a]ny person who knowingly presents, or causes to be
presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or
approval,” 31 U.S.C. § 3729(a) (2009), the Eighth Circuit has indicated that a showing of materiality is implicit in

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this public policy. First, that on October 1, 2009, her supervisor directed her to charge time
spent on addressing quality control problems to “Work Release 97,” a general entry to which
employees could charge overhead and other non-specific time.

Second, that on numerous

occasions she was told to “spread out” her time spent on duties other than quality assurance and
attending meetings to projects with specific job charge numbers. Plaintiff intimates that these
practices led to false claims being presented to the federal government.
While these practices raise eyebrows and may not comport with the FAA’s revised time
recording guidelines, Plaintiff has not shown that they resulted in any financial loss, or could
reasonably be inferred to have resulted in any financial loss, to the United States, thus these
practices do not implicate the policy animating the False Claims Act. At the outset, the Court
notes it is uncontroverted that all of the work McNerney performed during this period was
properly chargeable to, and paid for by, the FAA. She was not working on any other projects for
any other clients such that her time could have been improperly billed to the United States, nor
was she inflating her time spent working on any project. In short, all of her time was spent
working on projects for the United States. With respect to the October 1, 2009 incident, wherein
McNerney was instructed to charge her time to the Work Release 97 code, given that this
instruction originated with Don Sorter, the FAA employee who was coordinating the project, use
of this code was objectively reasonable. There is also no indication here that had McNerney
used a different billing code, or not spread her time out across several billing codes, that the FAA
would have paid any less than it did.
Consequently, McNerney has not established that she had an objectively reasonable
belief that the billing policies she reported were “serious misconduct” that constituted “a
the statute. Hays v. Hoffman, 325 F.3d 982, 992 (8th Cir. 2008) (citing U.S. ex rel. Costner v. United States, 317
F.3d 883, 887 (8th Cir. 2003).

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violation of the law and of well established and clearly mandated public policy” as required by
the Missouri Supreme Court in Margiotta. Because she cannot establish the first element of a
wrongful discharge in violation of public policy for “whistleblowing” claim, the Court must
grant Lockheed’s motion for summary judgment.
Conclusion
For the reasons discussed above, Defendant Lockheed’s Motion for Summary Judgment
(Doc. 65) is GRANTED.
IT IS SO ORDERED.
Date:

June 12, 2012

/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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