QUINT v. THAR PROCESS, INC.
Filing
14
MEMORANDUM OPINION re: 11 MOTION to Dismiss 8 Amended Complaint filed by THAR PROCESS, INC. Signed by Judge William L. Standish on 9/15/2011. (md)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARC QUINT,
Plaintiff,
v.
Civil Action No. 11-116
THAR PROCESS,
INC.,
Defendant.
MEMORANDUM OPINION
Pending before the Court is a motion to dismiss Plaintiff's
Amended Complaint filed by Defendant Thar Process,
Inc.
pursuant to Federal Rule of Civil Procedure 12 (b) (6) .
Defendant
argues
termination,
that
violation
Plaintiff's
of
the
complaint
whistle-blower
("Thar"),
(Doc. No. 11.)
alleging
provision
wrongful
of
the
federal False Claims Act, and breach of contract fails to satisfy
the pleading requirements set forth in Ashcroft v. I
129
S.
Ct.
1937
(2009).
For
the
reasons
1,
U.S.
that
follow,
Defendant's motion is denied as to Count I and granted as to Counts
II and III.
I.
INTRODUCTION
A.
Factual Historyl
Defendant
Thar
Process,
Inc. ,
is
corporation located in Harmarville, Pennsylvania.
a
Pennsylvania
Thar's specialty
Unless otherwise noted, the facts in this section are taken from the
Amended Complaint and construed in favor of Plaintiff.
is development of "supercritical fluid technology and equipment
operations."
When the events giving rise to Plaintiff's claims
began, Marc Quint, a mechanical engineer with more than 20 years'
experience, was living in Dexter, Michigan.
Sometime around July
2009, Plaintiff and a Thar representative began discussions about
him coming to work for the company.
After its initial offer was
rejected because of insufficient salary, Thar offered Mr. Quint a
position as a full-time Senior Mechanical Engineer at its Harmarville
location at an annual salary of approximately $108,000.
Plaintiff
accepted this offer on October 5, 2009, and officially began working
for Thar on October 19, 2009.
Mr. Quint's work involved use of a supercri tical pressure vessel
used in the production of spices and other products ("the pressure
vessel")
which
had had been designed and manufactured by Thar
sometime in 2002-2003.
When Plaintiff went to work for Thar, the
company was in the midst of a multi-year project to develop production
of diesel-grade biofuel from plants, which was funded in part through
a
grant
from
the
Advanced
Technology
Program
of
the
National
Institute of Standards and Technology ("NIST"), a division of the
U.S. Department of Commerce.
(See Exh. A to Memorandum in Support
of Defendant's Motion to Dismiss, Doc. No. 12, "Def,'s Memo.")
The
proj ect
the
involved
a
continuous
extraction
pressure vessel was an essential component.
2
process
in which
Wi thin two days after beginning work with Thar,
Mr.
Quint
realized that the pressure vessel did not meet the requirements of
the
American
Society
of
Mechanical
Engineers
("ASME")
or
the
Pennsyl vania Boiler and Unfired Pressure Vessel Law of 1998, 35 P. S.
§§
1331. 1 1331.19 ("the PA Pressure Vessel Law. ")
Specifically, Mr.
Quint noticed that no code stamp2 was affixed to the equipment; he
immediately pointed out this omission to Chief Executive Officer
Lalit Chordia and Vice President/General Manager Jose Martinez.
He
told Mr. Chordia the pressure vessel never should have been operated
because it was not
Pennsylvania law.
hydro-tested or code-stamped as
required by
Mr. Chordia stated he was unaware of the lack of
a code-stamp; when he questioned Mr. Martinez, he admitted there was
no stamp.
Plaintiff explained to both supervisors that operation
of the equipment failed to meet the standards of the NIST Advanced
Technology Program and that he viewed Thar's conduct as "outright
fraud."
(Amended Complaint, Doc. No.8, "Am. Compl.," at 27-28.)
Mr. Quint later talked with the company's Director of Engineering,
B.K. Desai, who had designed the continuous extraction system for
2
Plaintiff's use of the phrase "code stamp" or "code stamping," seems to
be a reference to that portion of the PA Pressure Vessel Law which provides
in relevant part:
"Every. . . pressure vessel destined for use in this
Commonwealth shall be inspected during its construction by an individual
who has a valid national board commission to perform an inspection. Every .
. . pressure vessel which has been so inspected shall, upon completion, have
placed upon it a stamp bearing a symbol and number authorized by the
[Pennsylvania] Department [of Labor and Industry] for this purpose."
35
P.S. § 1331.7. Shop inspection.
3
Thar,
and explained that the pressure vessel did not meet ASME
criteria for stress levels, wall thickness, and other requirements.
Mr. Desai responded that he "wanted no further involvement with the
proj ect" and told Plaintiff "not to worry" about the ASME violations.
(Am. Compl.,
~
12.)
Mr. Martinez subsequently asked Plaintiff to pursue having the
pressure vessel code-stamped as required by ASME and the PA Pressure
Vessel Law. 3
Mr. Quint proceeded to complete the tasks necessary to
meet the requirements, but could not satisfy one critical issue,
namely, being able to trace the materials used in the construction
of the vessel from the material supplier to the machining vendor and
back to Thar.
each
material
Because Thar had apparently not properly identified
used
in
each
component
as
it
was
built,
this
"traceability" requirement could not be met, effectively ruling out
any possibility that the equipment could be legally operated in
Pennsyl vania.
When Mr. Quint advised Mr. Martinez of this fact, Mr.
Martinez asked him on at least three separate occasions to falsify
records showing that the pressure vessel complied wi th the applicable
laws.
Plaintiff refused.
Neither Mr. Martinez nor Mr. Chordia took any further steps to
bring the pressure vessel into compliance and Plaintiff was directed
It appears that a vessel which has not been inspected and approved during
construction can be retroactively approved if some 13 requirements are met.
See 35 P.S. § 1331.7{b).
4
3
to continue using it.
He reluctantly did so under protest,
but
complained to Mr. Martinez "at least a couple times a month throughout
the time of his employment" about the situation.
(Am Compl., <]I 17. )
He also complained occasionally to Mr. Chordia, who told him to work
out the problem with Mr. Martinez, his direct supervisor.
As a result of these complaints, Mr. Martinez and Mr. Chordia
prevented Plaintiff from reviewing paperwork for other pressure
vessels
and
from
using
the
Thar
computer
network
drive
which
contained information Mr. Quint needed about other vessels he thought
violated the ASME code.
Furthermore, after Mr. Quint learned Thar
had filed reports with federal agencies about the pressure vessel,
he began reviewing those reports in an effort to stop Thar from
misappropriating federal funds.
Mr. Quint hesitated to contact the
Pennsylvania Department of Labor, ASME, NIST or any other state or
federal authority because he feared his job would be terminated if
he did.
That fear became reality when on September 8, 2010, Thar
terminated Mr. Quint's employment.
B.
Procedural History
Plaintiff filed suit on January 28, 2011, and Defendant
moved to dismiss the complaint under Fed. R. Ci v. P. 12 (b) (6) .
(Doc.
No.4.)
In response, Plaintiff filed an Amended Complaint pursuant
to Fed.
R.
Civ.
P.
15 (a) (1) (B),
in which he stated three claims
against Thar:
5
Count I
wrongful termination in violation of public
policy as set forth in the PA Vessel Law and the
Pennsylvania Health and Safety Act, 43 P.S. §§
25-1 to 25-15;4
Count II
violation of the federal False Claims Act,
specifically 31 U.S.C. § 3730(h) (l)and (2); and
Count III breach of his employment contract with Thar.
Defendant filed its current motion to dismiss all three counts
on June 22, 2011.
The parties having fully briefed the motion, it
is now ripe for decision.
C.
Jurisdiction
Mr.
Quint
is a
Venue
resident of the State of Michigan and
Defendant is a corporation with its principal place of business in
Pennsylvania.
This
Court
therefore
has
complete diversity of the parties and,
Complaint,
minimum.
jurisdiction
based
on
according to the Amended
an amount in controversy in excess of the statutory
See 28 U.S.C. § 1332(a)-(c).
Venue is appropriate in this
Court under 28 U.S.C. § 1391(a) because the events giving rise to
Plaintiff's claims occurred in Allegheny County, Pennsylvania.
II.
STANDARD OF REVIEW
In the aftermath of Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007), Ashcroft v. Iqbal, ___ U.S.
, 12 9 S. Ct. 1 937, 173 L. Ed.
Plaintiff appears to have abandoned his reliance in Count I on violation
of the Pennsylvania Heal th and Safety Act because in the brief in opposi tion
to the motion to dismiss, he concedes that an employee does not state a
wrongful discharge claim when he alleges he was discharged for reporting
violations of that statute.
(Plf.' s Brief at 13.)
6
2d 868 (2009), and the interpretation of those two cases by the Third
Circui t
Court of Appeals,
the pleading standards which allow a
complaint to withstand a motion to dismiss pursuant to Rule 12 (b) (6)
have taken on slightly new parameters.
The standard is now whether
the complaint includes "sufficient factual matter to show that the
claim is facially plausible."
203, 210 (3d Cir. 2009)
i
Fowler v. UPMC Shadyside, 578 F.3d
see also Twombly, 550 U.S. at 555, holding
that a complaint which offers only "labels and conclusions" or "a
formulaic recitation of the elements of a cause of action will not
do."
The Fowler court further directed that in considering a motion
to dismiss, the district court should undertake a two-part analysis:
First, the factual and legal elements of a claim should
be separated. The District Court must accept all of the
complaint's well-pleaded facts as true, but may disregard
any legal conclusions. Second, a District Court must then
determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a plausible claim
for relief. In other words, a complaint must do more than
allege the plaintiff's entitlement to relief.
A
complaint has to show such an entitlement with its facts.
As the Supreme Court instructed in Iqbal, "[w]here the
well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not shown - that the pleader is
entitled to relief."
Fowler, 578 F.3d at 210-211 (quotations and citations 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."
7
Iqbal, 129 S. Ct. at 1949; see also Gelman v. State Farm Mut. Auto.
Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009), and Mayer v. Belichick,
605 F.3d 223, 230 (3d Cir. 2010).
"Determining whether a complaint
states a plausible claim for relief will . . . be a context-specific
tas k that requires the reviewing court to draw on its
experience
and
common
sense."
In
re
Ins.
judicial
Brokerage Anti trust
Litig., 618 F.3d 300, 361 (3d Cir. 2010), quoting Iqbal, 129 S. Ct.
at 1950.
A complaint should not be dismissed even if it seems
unlikely the plaintiff can prove the facts alleged in the complaint
or will ultimately prevail on the merits.
The Twombly pleading
standard "does not impose a probability requirement at the pleading
stage, but instead simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the necessary
element."
McTernan v. City of York, 564 F.3d 636,646 (3d Cir. 2009)
(internal quotations omitted.)
III. ANALYSIS
A.
Count III - Breach of Employment Contract
We begin
our
analysis
with
Count
III
of
the Amended
Complaint in order to resolve the question of Mr. Quint's employment
relationship with Thar before we address the issue of whether his
employment was wrongfully terminated as he claims in Count I.
1.
Plaintiff's claims:
In Count III, Plaintiff alleges
that sometime around July 2009, Thar contacted him about a job opening
8
and began negotiating the conditions of his potential employment.
During the course of those negotiations,
and before any final
agreement was reached, Mr. Chordia purportedly told Mr. Quint, "If
you are a good engineer, you will have a job here for life."
Compl.,
~
39.)
(Am.
Mr. Quint alleges that based on this statement by
the president of the company and an increase in the salary offer of
almost
$30,000,
he
accepted Thar's
offer on October
5,
2009.
According to Mr. Quint, the offer letter dated September 24, 2009
(see Exh. A to Am. Compl., "the Offer Let ter"), contained six clauses
which reflect Thar's intention that Plaintiff would be employed in
Pittsburgh "for many years," specifically:
•
a provision
companYi
•
clauses regarding compensation for moving expenses; and
•
a provision precluding termination in the first year of
employment except for cause.
(Am. Compl.,
~~
concerning
pension
contributions
by
the
41-42.)
Plaintiff relied on these provisions in the Offer Letter and
Mr. Chordia's statement in deciding to accept the job, commute from
Michigan to Pittsburgh for six months, and list his home in Michigan
for sale, all of which were detrimental to him.
He further contends
that the Offer Letter is an employment contract which provided that
he was not "a mere employee-at-will,
only for just cause.
(Am.
II
Compl.,
9
but one who could be terminated
~
50.)
Thar breached this
contract by terminating his employment, without cause, on September
8, 2010.
The parties' argumen ts:
2.
Thar argues that Mr. Quint
has failed to state a claim for breach of contract for four reasons:
(1) Plaintiff's subsequent execution of a written agreement in the
Thar employee handbook acknowledging his at-will employment status
defeats his claim that the Offer Letter was a contract of employment
"for many years;U (2) the Offer Letter and the purported promise of
an indefinite period of employment were insufficient as a matter of
law to create an employment contract;
Mr.
(3)
Chordia' s alleged
verbal promise is barred by the parol evidence rule; and
has
failed
to
implied-in-fact
consideration.
plead
a
necessary
employment
element
contract,
for
that
(4)
Plaintiff
establishing
is,
an
additional
(Def.'s Memo at 13-16.)
In response, Mr. Quint argues that the terms in the Offer Letter
created an employment contract for an implied term.
In particular,
he points to a provision in the Offer Letter which pertains to
reimbursement of relocation expenses if he were "dismissed for cause
within one
year
from the
Company's
Pittsburgh
start of
office u
and
[hisl
full-time
references
contributions to the company's pension plan.
to
work at
the
increasing
Secondly, he provided
additional consideration sufficient to overcome the presumption of
at-will employment. Finally, he was the victim of a "bai t-and-swi tch U
10
maneuver by Defendant because he accepted the position based on the
contract of employment expressed in the Offer Letter,
and only
learned of the "at-will" provision in the employee handbook after
the contract was agreed to by both parties.
(Brief in Opposition
to Defendant's Motion to Dismiss, Doc. No. 13, "Plf.'s Brief," at
19-23. )
Discussion
3.
and conclusion:
Because we
find
no
employment contract was created by either Mr. Chordia's statement
or by any provision of the Offer Letter, Count III will be dismissed.
To state a claim for breach of contract under Pennsylvania law,
a pIa inti ff "must establish:
'( 1)
5
the existence of a contract,
including its essential terms, (2) a breach of a duty imposed by the
contract[,] and
(3)
resultant damages.'"
Ware v. Rodale Press,
Inc., 322 F. 3d 218, 225 (3d Cir. 2003), quoting CoreStates Bank, N.A.
v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999).
The focus
here is on the essential terms of the alleged contract, speci
s duration.
cally
As both Mr. Quint and Thar acknowledge, Pennsylvania
law recognizes the doctrine of "at-will" employment, meaning either
The parties assume, and the Court agrees, that a court sitting in
diversity applies the substantive law of the state in which it sits. See
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Edwards~HOVENSA, LLC,
497 F.3d 355, 361 (3d Cir. 2007). When applying Pennsylvania substantive
law, if there is no controlling decision by the Pennsylvania Supreme Court,
this Court will consider decisions of intermediate appellate courts, which,
although not conclusive, are indicative of how the Supreme Court might
decide the issue. McGowanv. Univ. of Scranton, 759F.2d287, 291 (3dCir.
1985) (such decisions may constitute "presumptive evidence" of Pennsylvania
law. )
11
party may end the relationship at any time.
Geary v. United States
Steel Corp., 319 A.2d 174, 176 (Pa. 1974).
Consequently, in most
instances, an employee has no cause of action when his employment
is terminated.
See Nix v. Temple Univ.,
596 A.2d 1132, 1135 (Pa.
Super. Ct. 1991) (the employment of an at-will employee in the private
sector "can be terminated for good reason, bad reason, or no reason
at
all.")
It
has
long
been
established
in
Pennsylvania
that
generally speaking, an employer "may discharge an employee with or
without cause,
at pleasure,
unless restrained by some contract."
Spierling v. First Am. Home Health Servs., 737 A.2d 1250, 1252 (Pa.
Super. Ct. 1999), quoting Henry v. Pittsburgh & Lake Erie Railroad
Company,
21 A.
employment
can
157,
157
only
be
(Pa.
1891).
overcome
if
The presumption of at-will
the
plaintiff-employee
can
establish the existence of an express contract or an implied-in-fact
contract.
Ouganv. Bell Tel., 876F.Supp. 713,726 (W.O. Pa.1994),
citing Scott v.
Extraco~poreal,
Inc.,
545 A.2d 334,
338-339
(Pa.
Super. Ct. 1988).
To rebut the presumption of at-will employment, the plaintiff
"must establish one of the
(1)
following:
an agreement
for
a
defini te duration; (2) an agreement specifying that the employee will
be
discharged
for
just
consideration;
or
(4)
exception."
cause
an
only;
applicable
Loral Fairchi
12
(3)
sufficient
recognized
additional
public
policy
688 A.2d 211,214 (Pa.
Super. Ct. 1997); see also Rutherfoord v. Presbyterian-University
Hospita~,
612 A.2d 500,
proving one
employee.)
is
not
503
(Pa. Super. Ct.
employed at-will
"rests
1992)
(the burden of
squarely"
with the
We consider the first three of these possibilities in
light of the facts presented in Plaintiff's Amended Complaint: the
fourth situation is addressed in the following section.
a.
An agreement for a definite duration:
To the
extent Plaintiff contends that Mr. Chordia's statement, "If you are
a good engineer, you will have a job here for life," established an
employment contract, such a claim must fail as a matter of law.
long-standing
Pennsylvania
law,
a
promise
of
Under
"permanent"
See
"lifetime" employment is too vague to establish a contract.
Seiss v.
McClintic-Marshall
188 A.
109,
109
(Pa.
or
1936)
("Alleged contracts of life employment are. . . so unusual as to have
been, with rare exceptions, condemned by the courts as unreasonable
See also, Murray v. Commercial Union Ins. Co.,
and unauthorized.")
782 F.2d 432,
435
(3d Cir.
1986)
(summary judgment was properly
granted to the defendant as a matter of law where the plaintiff's
breach of contract claim was based on assurances of a "future and
lifetime career" and employment "for as long as I wanted and they
wanted me and I was satisfactory to them," because such statements
did not create an agreement of employment for a specific term); and
Scott,
545
A.2d
at
336-337
(promise
13
of
"a
permanent
job"
and
references
in
employment
status"
employment.)
the
company
did
not
personnel
handbook
rebut
presumption
the
to
"permanent
of
at-will
In fact, even more precise statements such as verbal
assurances that the plaintiff would be working for the defendantemployer "for at least two years" or that the plaintiff would be
employed "as long as he performed [his duties] satisfactorily" are
not
considered
presumption.
sufficiently
See,
definite
to
overcome
the
at-will
respectively, Marsh v. Boyle, 530 A.2d 491, 494
(Pa. Super. Ct. 1987), and Braun v. Kelsey-Hayes Co., 635 F. Supp.
75, 77 (E.D. Pa. 1986).
Plaintiff acknowledges
in a backhand manner --
that the
Offer Letter did not create an agreement that he would be employed
for a definite period.
intended for Mr.
(Plf.'s Brief at 20,
stating "Defendant
Quint to work in Pittsburgh for many years.")
Despite this statement,
Plaintiff argues that two clauses in the
Offer Letter establish a contract of an implied term and that he was
not an at-will employee.
During the course of negotiations, it had
become obvious that Mr. Quint was unable or unwilling to immediately
relocate from Michigan to Pennsylvania.
The Offer Letter therefore
provided that during the first 24 weeks of his employment, Mr. Quint
would be able to work alternate weeks at his home in Michigan and
at the Harmarville location.
Then, beginning "on the date that is
no longer than twenty five weeks after your start date with the
14
Company," he would be required to work full-time in Pittsburgh.
(Of
r Letter at 2.)
Plaintiff contends that this provision shows
he was to be employed for a period not less than one year.
Br
f
(Plf.'s
at 21.)
Even an extraordinarily generous reading of this portion of the
Offer Letter anticipates that Mr. Quint would be employed at least
25 weeks, not a year; in that case, Mr. Quint has no cause of action
because his employment was terminated in September 2010, well after
25 weeks had elapsed.
However, this arrangement is described in the
letter as a "benefit" in addition to compensation, not as a guarantee
of employment for a definite period.
Moreover, it was subject to
reconsideration on a monthly basis, i.e., "you may work outside the
Company's Pittsburgh office and telecommute on a
provided that:
regular basis,
.You, your manager and corporate management of
the Company agree to the continuation of this temporary arrangement
on a monthly basis."
(Offer Letter at 2.)
Nor are we persuaded that the discussion of annual corporate
contributions to Plaintiff's pension plan created a contract of
employment for a
finite period.
The Offer Letter provides that
Mr. Quint would be entitled to participate in a company-sponsored
retirement program.
Plaintiff relies on the following statement as
evidence that his employment contract was for a period of at least
three, if not five,
years:
15
The Company will match 1% to 3% of your salary up to the
limit of the investment in a 5-year period.
The Company
is required by plan definition to match employee
contributions at 3% for three of the five years.
The
remaining two years are set at the Company's discretion.
(Offer Letter at 2.)
These sentences appear in a paragraph captioned "Retirement
Benefit."
Nothing in that paragraph of
rs, much less guarantees,
employment for three or five years; the sentences merely state what
the Company "is required by plan definition" to contribute if the
employee chooses to participate in the retirement plan.
b.
for just cause:
one
that
can
An agreement specifying termination will only be
"The modification of an 'at-will' relationship to
never
be
severed without
'just
cause'
is
such
a
substantial modification that a very clear statement of an intention
to so modify is required."
Schoch v. First Fidelity Bancorporation,
912 F.2d 654, 660 (3d Cir. 1990), quotingVeno v. Meredith, 515 A.2d
571, 578 (Pa. Super. Ct. 1986).
definite
that
which
the
"Courts are highly reluctant to make
parties
themselves
failed
to
do."
Darlington v. General Elec., 504 A.2d 306, 312 (Pa. Super. Ct. 1986)
o'ruled on other grounds, Clay v. Advanced Computer Applications,
Inc., 559 A.2d 917
(Pa. 1989).
Plaintiff argues that the following clause of the Offer Letter
expressly provides that he could not be terminated except for cause,
at least during the first year of his employment:
16
If you volunta ly leave the Company or are dismissed for
cause within one year from the start of your full-time work
at the Company's Pittsburgh office, you will return all
monies that the company paid on behalf of you for your
relocation.
(Offer Letter at 3.)
Again, even the most generous reading of this sentence cannot
turn it into an offer of employment that can be terminated only for
cause.
The sentence simply sets out two instances applicable during
the first year in which Mr. Quint would be required to return all
monies the company paid for his relocation to Pittsburgh:
(1)
if
he voluntarily terminated his employment or (2) if he were dismissed
for cause.
6
Nothing in this sentence precludes him from being
dismissed "for cause," e. g.,
for poor performance or failure to
perform his assigned duties, within a year or at any other time; it
only limits the time period during which he must
company.
reimburse the
That is, if he were dismissed through no fault of his own
during the first year after he began working in Pittsburgh, he would
not be required to make the reimbursement.
Such a condition cannot
be found to be a "very clear statement" that Thar intended to hire
The Court assumes that the phrase "within one year from the start of
your full-time work at the Company's Pittsburgh office" applies to both
conditions. Although it appears adjacent to the second condition, common
business experience would tend to make the reader believe that if the
employee worked for Thar for more than one year before voluntarily
resigning, he would not be required to reimburse the company for his moving
expenses.
This distinction is not cri tical to the analysis, however I since
Plaintiff relies on the one-year time period as it pertains to the
"dismissal for cause" phrase.
6
17
Mr. Quint under a contract that could only be terminated for cause.
c.
determining
if
Sufficient
an
implied
additional
contract
In
intended
to
override
the
presumption of at-will employment has been formed, "a court will find
'additional consideration' when an employee affords his employer a
substantial benefit other than the services which the employee is
hired to perform,
or when the employee undergoes
a
substantial
hardship other than the services which he is hired to perform.u
Darlington, 504 A. 2d at 315 .
the
"additional
Pennsylvania courts generally construe
consideration u
factor
narrowly and
require
plaintiff to show an "extraordinary benefit or detriment. u
Platinum Healthcare
-------------------------- ,
the
Kane v.
CA No. 10-4390, 2011 U.S. Dist. LEXIS 7398,
*11 (E.D. Pa. Jan. 25, 2011).
Even if the plaintiff can show the
addi tional consideration, the court wi 11 consider whether the period
of
t
he
was
employed
was
"reasonable,u
that
is,
was
it
"commensurate with the hardship the employee has endured or the
benefit he has bestowed.
Generally,
U
Kane, id., see also Vena, 515 A. 2d at 580.
determining
whether
the
purported
additional
consideration is sufficient to rebut the presumption is a question
of fact for the jury.
Scullion v. EMECO Indus., Inc., 580 A. 2d 1356,
1358 (Pa. Super. Ct. 1990).
However,
the court may address such
issues of fact where the "evidence is so clear that no reasonable
man would determine the issue before the court in any way but one.
18
U
Martin v. Safeguard Scientifics, Inc., 17 F. Supp.2d 357, 369 (E.D.
Pa. 1998), quoting Darlington,
Plaintiff
argues
that
504 A.2d at 312.
he
provided
sufficient
additional
consideration to overcome the presumption of at-will employment,
specifically
(1)
his
relocation
to
Pittsburgh,
part-time
from
October 2009 through April 2010, then full-time thereafter, and (2)
his wife's relocation of her work to Pittsburgh, requiring him to
also relocate despi te his termination by Thar.
of Cashdollar v. Mercy HOsp. of
Pittsbur~,
He relies on the case
595 A.2d 70 (Pa. Super.
Ct. 1991), in which the court affirmed a jury decision that found
the plaintiff had provided sufficient additional consideration to
overcome the at-will presumption when he sold his home in Virginia
and moved his family to Pittsburgh, only to be terminated 16 days
later.
The
facts
of Cashdollar are slightly different
outlined by Plaintiff in his own case.
from those
There, the jury found that
the plaintiff had experienced greater hardships than those incurred
by most salaried professionals when changing jobs, specifically, he
gave up a secure job as the vice president of human resources at a
hospital
in
Virginia
for
a
salary
increase
of
just
over
10%,
"uprooted U his pregnant wife and two-year-old child, and sold his
home "based on his understanding that he was going to a job where
his
special
talents would be employed.
19
U
Id.,
595 A.2d at
73.
Instead, he was fired just two weeks later because he was allegedly
"creating an unstable working environment in the Human Resources
Department" at Mercy Hospital.
Id. at 71.
By contrast, we find the facts of this case similar to those
of Pinderski v. Commonwealth Tel. Enters., Inc., CA No. 05-2657, 2006
U.S.
Dist.
LEXIS
50783
(M.D.
Pa.
July
25,
2006).
There,
the
plaintiff who lived in Chicago accepted a position with a company
in Wilkes-Barre, Pennsylvania.
When he accepted the offer, his wi
resigned from her job at which she was earning $123,000 plus bonuses,
stock options, profit sharing and other benefi ts.
Less than a month
after he began working for the defendant, he was told he would be
terminated because he was not a "good fit," with the company, meaning
he did not have the proper experience or credentials, even though
the employer had reviewed his resume, interviewed him, and conducted
reference checks before hi
ng him.
Id. at *1-*2.
nderski sued
for wrongful discharge and alleged he had undergone considerable
hardship to accept the posi tion with the defendant and that he could
therefore only be discharged for good cause.
held that the
Id. at *6.
The court
ct that his wife had given up her job and substantial
benefits could not be attributed as
plaintiff himself.
consideration given by the
Moreover, the fact that he had expended time and
money preparing to move himself and his
family
from Chicago to
Wilkes-Barre was not additional consideration when he did not sell
20
his previous home, buy a new home or actually move his family to
Pennsylvania.
Rather, preparing for such a move was no more than
a detriment that is "commensurate with those incurred by all manner
of salaried pro
Here,
ssionals."
Id. at *7-*10.
Plaintiff has alleged that for the first six months of
his employment, he commuted between Pennsylvania and Michigan and
for some time afterward, continued to commute back to Michigan almost
every weekend.
(Am. Compl., 'J['J[ 43-44. )
He" listed his house on the
market in Michigan starting in February 2010, fully intending to sell
and move to Pittsburgh."
(Id., 'J[ 45.)
His wife relocated her
employment to Pittsburgh, "still routinely commutes to Pittsburgh"
and her car still has Pennsylvania license plates. 7
Because of his
w i ' s new employment, Mr. Quint needs to sell his home in Michigan
and relocate to Pittsburgh.
(Id., 'J['J[ 47-48.)
ke the court in
nderski, we find none of the actions Mrs. Quint is alleged to have
undertaken constitute consideration by her husband.
Secondly, the
fact that he commuted between Pittsburgh and Michigan for six months
was part of the original agreement and Mr. Quint acknowledges he did
not agree to relocate until he was offered a higher salary.
It
appears the commuting arrangement was made to accommodate Mr. Quint,
not to bestow any benefit on the Company.
l'1oreover, the Offer Letter
It is unclear to the Court why, if Plaintiff's wife has relocated her
employment to Pittsburgh, she still regularly commutes to Pittsburgh, or
the significance of where her car is registered.
21
stated he would receive compensation for his travel expenses during
the first six months and there is no allegation that he did not receive
it, so he suffered no financial detriment by having to pay cormnuting
costs himself.
Cormnuting to Michigan on weekends after the first
six months similarly appears to have been for his own personal
benefit, not that of the company, and there is no allegation to
support the conclusion that this was a substantial detriment to him.
He did not sell his home in Michigan, merely listed it for sale.
Finally, unlike Cashdollar, he was not terminated only a few days
after beginning his new employment but rather almost a year later.
We conclude Plaintiff has failed to establish the sufficiency
of any additional consideration to overcome the at-will presumption,
nor has he established a contract for a definite period of time or
identified an agreement that would preclude him being dismissed
except for cause during his first year of employment.
The breach
of contract claim in Count III is therefore dismissed.
B.
Count I - Wrongful Termination
1.
Plaintiff's claims:
Plaintiff alleges in Count I
that he repeatedly advised Thar management that continued operation
of the pressure vessel was a violation of the PA Pressure Vessel Law
because it had never been hydro-tested and approved by the ASME; the
vessel could not be retroactively approved because Thar had failed
to maintain records regarding the traceabili ty of the materials used
22
in its construction; he was asked at least three times by Mr. Martinez
to falsify records to show that the pressure vessel was in compliance;
and, despite his continuing protests to both Mr. Chordia and Mr.
Martinez about the non-compliance of the pressure vessel,
forced "to continue to engineer,
he was
improve, modify and operate the
vessel in violation of the codes and laws.
.and in a manner that
endangered the safety of Defendant Employer's employees, including
Plaintiff."
(Am.
Compl.,
<][<][
11, 13-15, and 19.)
His subsequent
termination "was in direct opposition to the public policy of the
Commonweal th of Pennsylvania as articulated in the PA Pressure Vessel
Law."
(Id.,
<][
2.
23.)
The parties' arguments:
Thar argues that Plaintiff
has failed to state a claim for wrongful termination in Count I
because the claim is founded on the PA Pressure Vessel Law which has
never been recognized as
employment.
the basis
for an exception to at-will
The law imposes no legal duty on Plaintiff to report
the events surrounding Thar's continued use of the pressure vessel,
a necessary element in finding a statutory basis for a public policy
violation,
sentiment
and
it
regarding
does
a
not
matter
embody
of
a
great
"well-defined,
public
universal
concern."
Thar
contends there are only three public policy exceptions to the at-will
employment
doctrine
in
Pennsylvania:
the
employer
(1)
cannot
require an employee to commit a crime; (2) cannot prevent an employee
23
from complying with a
statutorily imposed duty;
and
(3)
cannot
discharge an employee when specifically prohibited from doing so by
statute.
Plaintiff has
iled to plead facts sufficient to satisfy
any of these exceptions.
Specifically, neither of the statutes that
Plaintiff identifies in the Amended Complaint -
the Pennsylvania
Health and Safety Act and the federal Occupational Health and Safety
Act ("OSHA")
employment.
creates an exception to the presumption of at-will
(Def.' s Memo at 1 6.)
Plaintiff responds that Thar is missing the point - he does not
claim that either the Pennsylvania Health and Safety Act or OSHA
creates an exception to
the presumption of at-will
employment.
Rather, his contention is that Thar forced him to commi t a crime when
he was directed to continue operating a pressure vessel he firmly
believed was not in compliance with the PA Pressure Vessel Law.
He
does not argue that the law itself creates a public policy exception,
only that the statute identifies as a crime the actions Thar compelled
him to take.
Thus,
the facts of his case, and the basis for his
wrongful termination claim, fit squarely into the first public policy
exception identi
ed by
Pennsylvania courts.
(Plf.' s
Brief at
7-13. )
3.
Discussion and conclusion:
As can be seen from the
discussion in the previous section, Pennsylvania courts have been
reluctant to limit the scope of the at-will employment doctrine.
24
This hesitancy applies even when presented with the fourth recognized
exception, violation of established public policy.
Circuit Court of Appeals has observed,
construed
the
public
policy
As the Third
"Pennsylvania courts have
exception
to
at-will
employment
narrowly, lest the exception swallow the general rule."
Fraser v.
Nationwide Mut. Ins. Co., 352 F.3d 107, 111 (3d Cir. 2003); see also
Clay, 559 A. 2d at 918 (exceptions to the at-will doctrine "have been
recognized
in
only
the
most
limited
of
circumstances,
where
discharges of at-will employees would threaten clear mandates of
public policy");
and McLaughlin v.
Inc., 750 A.2d 283, 287
to bring a
(Pa. 2000)
cause of action for
Gastrointestinal Specialists,
("An employee will be entitled
a
termination of
[the at-will]
relationship only in the most limited of circumstances where the
termination implicates a clear mandate of public policy in this
Commonwealth.")
To state a cause of action under the public policy exception
to the at-will doctrine, a plaintiff "must point to a clear public
policy
articulated
administrative
in
the
regulation,
constitution,
or
a
judicial
in
legislation,
decision"
which
an
is
"applicable directly to the employee and the employee's actions."
Hunger v. Grand Cent. Sanitation, 670 A.2d 173, 175 (Pa. Super. Ct.
1996).
The Pennsylvania Supreme Court has identified the sources
of public policy in this Commonweal th as "our own Consti tution, court
25
decisions
and
statutes
750 A.2d at 288.
promulgated
by
legislature.
our
II
In Fraser, the Court of Appeals noted
that although the perimeters of the public policy exception have not
been
sely defined,
there appear to be only "three limited
circumstances in which public policy will trump employment at-will.
Fraser
352 F. 3d at 111, quoting
1273 (Pa. Super. Ct. 1998).
--------~--------~~
II
708 A. 2d 1269,
As the parties acknowledge, the Hennessy
courtS described those circumstances as: "[AJn employer (1) cannot
require an employee to commit a crime, (2) cannot prevent an employee
from complying with a
discha
statute.
statutorily imposed duty,
an employee when specifically proh
1I
708 A.2d at 1273, quat
A.2d 511, 513 (Pa. Super.
and
(3)
cannot
ted from doing so by
Shick v. Shirey, 691
ct. 1997) (en bane), rev'd on other grounds,
716 A.2d 1231 (Pa. 1998). Moreover, the Pennsylvania Supreme Court
has held that in order for the public policy exception to apply, the
alleged violation must be of Pennsylvania public policy, not solely
an all
(" [AJ
olation of federal law.
750 A.2d at 289
iff must do more than show a possible violation of a
We note that the Pennsylvania Supreme Court has not adopted or rej ected
the three exceptions set out by the Superior Court in Shick and HennessYI
al though the high court did recognize in Shick that there may be "exceptions
to the general rule that there is no common law cause of action against
an employer for dismissal of an at-will employee where the dismissal would
threaten clear mandates of public policy.u
Shi k 716 A.2d at 1234/
further noting that it had "not yet addressed the public policy exceptions .
. . and do not reach those issues today." Id. at 1234 n.3.
8
1
26
federal statute . . . [and] in some way must allege that some public
policy
of
violated. ")
this
Commonwealth
is
implicated,
(Emphasis in original.)
undermined,
or
Thus, even if Mr. Quint had
relied on violation of a federal statute such as OSHA (which we agree
he did not in his Amended Complaint),
alone,
would
not
Pennsylvania law.
establish
a
such a violation,
public
policy
standing
exception
under
See, for example, Kelly v. Ret. Pension Plan for
Certain Home Office, Managerial
&
Other Emples. of Provident Mutual,
No. 02-3185, 2003 U.S. App. LEXIS 18481, *2-*3 (3d Cir. Sept. 5, 2003)
(plaintiff's claims failed where he alleged that the employer's
marketing methods violated Rule 10b-5 of the Securities and Exchange
Act of 1984), and McGonagle v. Union Fid. Corp., 556 A.2d 878, 885
(Pa.
Super.
Ct.
1989)
(wrong
termination
claim by
in-house
attorney who refused to approve mailings which he believed violated
unspecified insurance laws of other states failed because even if
he were correct, such actions did not violate Pennsylvania public
policy. )
We need not discuss the second and third Henness
exceptions
because Plaintiff clearly limits his argument to the first.
He
argues he was required to commit a crime in violation of the PA
Pressure
Vessel
law
when
Thar
insisted
that
"engineer, improve, modify and operate the vessel."
continued
to
In his brief,
he also argues indirectly that Mr. Martinez asked him to commit a
27
crime by
lsifying records to indicate that the pressure vessel was
in compliance with Pennsylvania law,
but this is not explicitly
alleged as a crime in the Amended Complaint.
When invoking the "commit a crime" exception, the plaintiff must
point to his employer's course of action that is "clearly illegal."
Kelly,
2003 U.S. App. LEXIS 18481 at *2.
"Pennsylvania will not
recognize a wrongful discharge claim when an at-will employee's
discharge is based on a
disagreement with management about
the
legality of a proposed course of action unless the action the employer
wants to take actually violates the law."
Clark v. Modern Group
Ltd.,
Therefore,
9 F.3d 321,
327-328
(3d Cir. 1993).
where such
claims have succeeded, the plaintiff has identified a specific policy
or law violated by the employer's actions.
AMF Leisureland Centers,
(employee
wrongfully
Inc.,
See, e.g., Woodson v.
842 F.2d 699,
terminated
for
702
refusing
(3d Cir.
to
serve
1988)
visibly
intoxicated person in violation of 47 P.S. § 4-493(1)); Novosel v.
Nationwide Ins. Co., 721 F.2d 894,
900
(3d Cir. 1983)
(employee's
discharge for refusing to participate in the defendant's lobbying
efforts
was
held
to
concern
his
right,
under
the
Pennsylvania
constitution, to political expression and termination was therefore
in violation of public policy) i Perks v. Firestone Tire
611
F. 2d 1363
polygraph test
(3d Cir.
1979)
(dismissal
for
&
Rubber Co. ,
refusal
to take a
violated public policy since such testing,
28
as a
condition of employment, was prohibited by 18 Pa. C.S.A.
7321 (a));
§
Brennan v. Cephalon, Inc., CA No. 04-3241, 2005 U.S. Dist. LEXIS
25170,
*18-*21
(D. N.J. Oct. 25,
2005)
(case survived motion to
dismiss where discharged plaintiff alleged that had he complied with
his employer's directive to change his audit report, he would have
engaged in illegal conduct in violation of several false reporting
statutes,
including 18 Pa. Cons. Stat. Ann.
§
4911);
9
Levito v.
Hussman Food Service Co., CA No. 89-5967, 1990 U.S. Dist. LEXIS 145,
*4-*9 (E.D. Pa. Jan. 8, 1990) (pI
ntiff survived motion to dismiss
where he claimed he was wrongfully terminated for refusing to engage
in an illegal kick-back scheme in
olation of 18 Pa. C.S.
§
4104);
Dugan, 876 F.Supp. at 725 and n.11 (motion to dismiss denied where
employee alleged he was fired when he refused to release records
subpoenaed as part of an official investigation because he believed
his employer wanted to destroy them, an act which was unlawful under
several Pennsylvania statutes)
i
Kroen v. Bedway Securi ty Agency, 633
A.2d 628, 633 (Pa. Super. Ct. 1993)
(see Perks
supra); Reuther v.
Fowler & Williams, Inc., 386 A.2d 119, 121-122 and n.6 (Pa. Super.
Ct. 1978)
(raising the possibility that his supervisor had
ited
terminated employee to commit perjury when called for jury duty, in
This case was later dismissed at summary judgment for lack of evidence
to support the plainti ff' s claim because no one in a pos i tion of authority
could be shown to have given him instructions to falsi fy his audi t
s.
2007 U.S. Dist. LEXIS 33991 (D. N.J. May 8, 2007), aff'd, 2008
U.S. App. LEXIS 21120 (3d Cir. Oct. 7, 2008).
9
29
violation of Pa. R. Crim. P. 1106(b)); and Spriegel v. Kensey Nash
Corp., 28 Pa. D.
&
C. 4th 326, 329-330 (Pa. Corn. Pl. 1995)
(summary
judgment denied where employee argued he was wrongfully terminated
for refusing to perform animal stUdies in violation of federal and
state law.)
Here, Plaintiff relies on, and clearly identifies in his Amended
Complaint, the provisions in the PA Vessel Law which he claims Thar
insisted that he violate,
specifically,
Section 7 which requires
either pre-installation inspection and approval of pressure vessels
or retroactive approval of a vessel which has not been shop inspected.
(Am. Compl.,
18
of
the
<]I
11, 13-14.)
statute makes
Plaintiff has also alleged that Section
ita
criminal
offense
to
violate
the
provisions of the statute or the regulations promulgated under it.
Id.
<]I
8.)
Penalties for the first violation include a fine and/or
imprisonment
subsequent
for
up to ten days,
violations.
35
P.S.
with increasing penalties
§
1331.19.
Mr.
Quint
for
has
adequately alleged that Thar management required him to commit a
crime by maintaining and operating the pressure vessel without the
appropriate approval and certificate of operation.
Although he does not argue that his employment was terminated
because he refused to comply with the directives of Mr. Martinez to
continue operating the equipment in violation of the law, he does
allege that he was terminated because he continued to complain about
30
Compare
having to do so.
2008
u.
S.
App.
LEXIS
Ma~tinez
18683,
v. Rapidigm, Inc., No. 07 2274,
*15-*17
(3d Cir.
Aug.
28,
2008)
(attorney-plaintiff could not show she was wrongfully discharged
even if signing certain immigration petitions may have violated the
Pennsylvania Rules of Professional Conduct and perjury laws because
she was not required to sign the petitions, was instructed not to
sign anything that "made her uncomfortable,
that any of the
We find
It
and did not demonstrate
petitions in question were unlawful.)
Plaintiff's allegations
sufficient to state a claim
in support of Count
I
are
r wrongful discharge in violation of
public policy and will allow this claim to proceed.
C.
Count II - Termination in Violation of the FCA
1.
Pla
tiff's claims:
In the Amended Complaint, Mr.
Quint alleges that Thar defrauded the federal government of some $2
million of grant monies in developing the pressure vessel and the
continuous extraction system.
to Plaintiff,
The effort was fraudulent, according
because the pressure vessel could not work in the
continuous extraction process and was "basically a big expensive
'boat anchor.'
It
(Am. Compl., <[ 27.)
Thar "blatantly misrepresented"
the capabilities of the extraction system to the funding agency and
failed to meet technical milestones and dates.
Mr. Quint told Thar
management that operation of the pressure vessel was in violation
of the NIST Advanced Technology Program because the vessel did not
31
comply with the PA Pressure Vessel Law and the extraction process
itself
failed
to
meet
the
federal
standards
of
the
program.
Moreover, when he became aware that Thar had filed reports about the
pressure vessel and the continuous extraction process, he started
reviewing
those
reports
in
an
"effort
misappropriating federal funds."
reactions
he
received
when
Id.
he
CJ[
to
32.)
stop
Thar
from
Due to the hosti
confronted management
about
the
problems with the vessel, he was discouraged from contacting federal
authorities, and did not do so because he was afra
job.
of losing his
Thar's decision to fire him in September 2010 was a violation
of the False Claims Act ("FCA") since it was a retaliatory action
against an
employee who was
preparing a
report
to
the
federal
government about potential false claims.
2.
The parties' arguments:
Thar argues that Plaintiff
cannot sustain a claim for relief under the FCA for two reasons:
rst, he fails to plead facts which demonstrate that his alleged
reports to Thar's upper management should be considered "protected
conduct" as
management
that term is defined in the
had
no
knowledge
constitute protected conduct.
of
any
acts
Moreover,
FCA,
and second,
which
would
32
arguably
even if Thar failed to
achieve success in the program funded by NIST, such a
not constitute fraud under the FCA.
Thar
lure does
(Def.'s Memo at 6-13.)
Mr. Quint argues that contrary to Defendant's assertions, he
did, in fact, engage in "protected cOnduct" by bringing his concerns
about
possible
fraudulent
conduct
to
the
attention
of
Thar
management, specifically by identifying the fact that the pressure
vessel could not work in a continuous extraction process.
concerns
that
information
to
Thar
the
was
either
federal
employment was terminated.
omitting
government
or
and,
in
He raised
misrepresenting
response,
his
The issue is not whether the research
and development funded by the federal government was successful, it
is whether Thar misrepresented the technical capabilities of the
pressure vessel when seeking federal funds, thereby defrauding the
government.
3.
(PIL's Brief at
13-17.)
Discussion and conclusion:
Section 3730 (h) of the
False Claims Act provides in relevant part:
Any employee who is discharged, demoted, suspended,
threatened, harassed, or in any other manner discriminated
against in the terms and conditions of employment by his
or her employer because of lawful acts done by the employee
on behalf of the employee or others in furtherance of an
action under this section.
.shall be entitled to all
relief necessary to make the employee whole.
31 U.S.C. § 3730(h).
To establish that an employer has retaliated against an employee
who has filed (or has given the employer reason to believe he is about
to
Ie) a qui tam action alleging that the employer has presented
false or
fraudulent
payment
claims
33
by
the
United
States
Government, the plaintiff must satisfy a two-prong test:
he must
show "( 1)
acts
done
that
he
he
furtherance
engaged in
of
an
protected conduct
action
under
3730)
§
(i. e.,
and
(2)
discriminated against because of his protected conduct."
in
was
United
States ex reI. Hefner v. Hackensack Univ. Medical Ctr., 495 F. 3d 103,
r. 2007), quoting Hutchins v. Wilentz, Goldman & Spitzer,
110 (3d
253 F.3d 176, 186 (3d Cir. 2001), cert. denied, 536 U.S. 906 (2002)
(internal quotation marks omit
"protect
.)
In the context of an FCA claim,
conduct" consists of actions taken "
furtherance of"
a qui tam action; that is, there must be a "nexus II between the conduct
and
the
potential
(internal
federal
citations,
action.
quotations
Hutchins,
and
253
alterations
F.3d
at
omitted.)
187
As
discussed in Hutchins and reiterated in Dookeran v. Mercy Hosp. of
281 F.3d lOS, 108 (3d Cir. 2002), the concept of acts
"taken in furtherance" of a FCA action does not
to have actually filed a
FCA suit
re the employee
in order to assert claim of
retaliation under § 3730 nor even to have developed a "winning FCA
case."
Hutchins
id. at 187-188, see also Dookeran, id.
Courts do,
however, "require that there at least be a distinct possibili ty that
a viable FCA action could be filed."
Dookeran,
281 F.3d at 108,
citing cases.
The second part of the Hutchins test also has two prongs.
employee must show
(1)
the
The
loyer knew he had engaged in some
34
activity in furtherance of a FCA action and (2) the "retaliation was
motivated,
at least in part,
protected activity."
Univ.
by the employee's engaging in that
United States ex reI.
153 F.3d 731, 736 (D.C. Cir. 1998)
alteration omitted.)
That is,
Yesudi
(internal quotation and
as the Hutchins Court succinctly
stated, the employer has to have been put on notice of the "distinct
possibility" of FCA litigation.
notice
requirement
"is
Hutchins, 253 F.3d at 188.
essential
because
without
This
knowledge
an
employee is contemplating a False Claims Act suit, there would be
no
basis
to
conclude
that
the
employer
prohibited motivation, i.e., retaliation."
harbored
§
3730 (h)' s
rd. at 186, n.7.
Plaintiff identifies only a single act which he
aims was taken
in furtherance of a FCA action, that is, he told Thar its actions
were
fraudulent
because the pressure vessel was being operated
illegally and the continuous extraction process did not work.
As
pointed out in Campion v. Northeast Utils, 598 F. Supp.2d 638 (E.D.
Pa. 2009), the FCA "protects a wide variety of conduct,
investigation
an
FCA
aim,
r, initiation of, testimony for, or assistance in,'
and
'[d]etermining
'protected conduct' is a
Supp.2d at 648,
'including
what
activities
ct specific inquiry."
quoting Hutchins, 253 F.3d at 187.
constitute
598 F.
Section 3730
covers actions taken while the employee is "collecting information
about a possible fraud, before he has put all the pieces of the puzz
35
Campion, id. at 657, quoting Hutchins, id. at 187-188.
together."
The act of assembling the puzzle can include "internal reporting and
investigation of an employer's false or fraudulent claims," but does
not extend so far as to include investigation "of nothing more than
his employer's non-compliance with
Campion,
id.
rnal
citations
ral or state regulations."
omitted.}
Thus,
although
Plaintiff alleges he repeatedly advised Thar management that he
believed the use of the pressure vess
was a violation of local,
state and federal law, as pointed out in
~ampion,
investigation of
what an employee believes to be non-compliance with t
insuf
ent.
Moreover,
law is
allegations that Thar had fraudulently
misrepresented the technical capabilities of the pressure vessel and
continuous
entirely
on
subjective
insu
extraction
process
Mr.
Quint's
belief
that
when
seeking
subjective
his
federal
beliefs.
employer
is
"An
committing
funds
rest
employee's
fraud
in
icient by itself to trigger the protections of the FCA's
retaliation provision."
Mann v. Heckler & Koch Def., Inc., 639 F.
Supp.2d 619, 641-642 (E.D. Va. 2009).
Although the Third Circuit
Court of Appeals has not spoken directly on this issue, the Fourth
Circuit has held that an employee's investigation of his employer's
activities does "not rise to the level of protected activity until
the employee uncovered likely fraud,
reasonable possibility."
thereby making litigat
a
Eberhardt v. Integrated Design & Const.,
36
Inc., 167 F.3d 861, 869, n.2 (4 th Cir. 1999); see also Dookeran, 281
F.3d at 108, citing Eberhardt
the proposition that there must
"at least be a distinct possibility that a viable FCA action could
be filed."
Plaintiff here
ils to point to a
single concrete
example of "likely fraud" which he discovered, thus failing to allege
a critical component of a
aim under the FCA.
The only other action the Court can identify in the Amended
Complaint that might fall within the ambit of "protected conduct"
is the allegation that Plaintiff began reviewing reports Thar had
filed
with
"federal
agencies"
"fraudulent reporting."
go after he express
made to the
about
the
~
32.)
(Am. Compl.,
pressure
vessel
for
He alleges he was
his "concerns that misrepresentations had been
ral agencies charged with administering the Advanced
Technology Program."
(Id.,
~
35.)
He does not allege that he told
anyone at Thar he was investigating the reports for evidence of
possible fraud, nor does he allege that he advised anyone in Thar
management he was intending to compla
company's
to those agencies about the
purportedly fraudulent claims.
In short,
there is no
factual allegation to support the conclusion that at any time, Thar
was "on notice of the 'distinct possibility' of litigation" because
Mr. Quint fails to allege any activity on his part "revealing the
intent to report or assist the government in the investigation of
a False Claims Act violation."
See Hutchins, 253 F. 3d at 189.
37
Count
II of the Amended Complaint is therefore dismissed for failure to
state a claim.
An appropriate Order follows.
September
/J,
2011
William L. Standish
United States District Judge
38
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