Chapins v. Northwestern Community Services Board

Filing 31

MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 3/20/2017. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
KATHY A. CHAPINS,

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Plaintiff,

Case No. 5:16-cv-00031

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)
)
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v.

NORTHWESTERN COMMUNITY )
SERVICES BOARD,
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By:

Michael F. Urbanski
United States District Judge

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Defendant.

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MEMORANDUM OPINION
This is an employment dispute. Plaintiff Kathy A. Chapins brings claims against her
former employer, Northwestern

Commu~ty

Services Board ("Northwestern"), of retaliation

and age discrimination under the False Claims Act ("FCA"), 31 U.S.C. § 3729, et ~'and·
the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et ~'
respectively. Before the court is Northwestern's motion for summary judgment. ECF No.
17. The matter has been fully briefed, and the court heard oral argument on March 3, 2017.
For the reasons set forth below, the court finds that Chapins has failed to establish a genuine
issue of material fact, and Northwestern is entitled to judgment as a matter of law on both
counts. Accordingly, the court GRANTS Northwestern's motion for summary judgment
(ECF No. 17). Northwestern's Motion in Limine (ECF No. 26), is DENIED as moot.
I.

Defendant Northwestern oversees "an array of outpatient, case management, day
support, residential and emergency programs" designed to help adults and children combat

addiction, mental illness, and emotional/behavioral disorders. What we do for you and your
family, Northwestern Community Services Oast visited Mar. 3, 2017),
http:/ /www.nwcsb.com/aboutus.php. Chapins began her employment at Northwestern in
2003, and from February 2011 through June 13, 2014 worked as the Office Manager at
Northwestern's Shenandoah County Youth Services Center. ECF No. 1, ~ 8. In February
2011, "Chapins reported her suspicions" that a coworker, Clare Matthews, had submitted
false Medicaid claims and timesheets to her supervisor, Barbara Kibler.1 Id.

~

10. As a result,

Matthews was suspended, and later terminated after her position was eliminated. Id.

~

11.

After reporting Matthews, Chapins claims she experienced harassment at the hands of
Matthews' subordinates, resulting in Chapins' hospitalization due to stress in July 2011. I d.

~

12. Chapins argues that Kibler and Chief Operations Officer Mark Gleason mischaracterized
this harassment as a "relationship problem," and threatened her with transfer or termination
if she could not resolve her differences with her coworkers. Id.

~

13. As a result, in

December 2011, Chapins filed a grievance against Gleason; Chief Financial Officer David
Toth subsequently dismissed her grievance, and assured her "there was no threat of
termination or transfer." Id.

~~

14, 16. Subsequently, however, Toth retired, and, according

to Chapins, "Gleason resumed his campaign of hostility." Id.

~

17.

In spring 2014, Northwestern discontinued the Therapeutic Day Treatment Program
(the "TDT program"), on which Chapins worked.2 Id.

1

~

18. Chapins, along with thirty-three

Chapins' complaint speaks only of reporting Matthews. In their depositions, however, Chapins and Kibler also note
that Chapins reported the potential fraud of Julie Ebersole, another coworker. See, e.g., Chapins Dep. Tr., ECF No. 25,
at 52:21-53:2 ("Did you also report Julie Ebersole? A: Yes, I did."). Because Chapins does not argue that her report of
Ebersole was also protected conduct, the court does not focus on the Ebersole report.
2 There is a factual dispute as to whether Chapins' position was funded exclusively through the TDT program or
through all the programs she supported. Northwestern has proffered exhibits which support its claim that Chapins'

2

others, were terminated when the TDT program was discontinued. Id.; see ECF No. 18, at
11. After receiving her termination notice, Chapins applied for a different position (the
"Office Manager II position"). ECF No. 1, ~ 20. Kibler delayed the hiring process to allow
Chapins and her coworker, Sarah Clark, to apply. ECF No. 18, at 15; see Kibler Dep. Tr.,
ECF No. 24, at 45:19. In fact, Chapins and Clark were the only applicants; both interviewed,
and both received high scores on their interview evaluations. ECF No. 18, at 15. However,
Chapins alleges that her interview, conducted by Gleason and Kibler, was "hostile,
intimidating and antagonistic." ECF No. 1, ~ 21. Ultimately, Chapins was not chosen for the
position, and Clark, seventeen years her junior and thus not within the class of protected
persons under the ADEA, was. Id.

~~

22, 25.

Chapins flied suit in May 2016. She Erst alleges that Northwestern retaliated against
her for reporting Matthews: "Chapins was threatened, harassed, terminated and not selected
for a position for which she was the more qualified applicant by Northwestern in violation
of the [FCA]." Id.

~

29. Second, Chapins alleges that Northwestern discriminated against her

on account of her age, in violation of the ADEA, "by selecting a lesser qualified applicant of
a non-protected status for the Office Manager [II] position." Id.

~

33. In response,

Northwestern answered, ECF No.5, before filing a motion for summary judgment on
January 25, 2017. ECF No. 17.

salary was funded entirely through the TBT program. E.g. ECF No. 18-3, at 1 (Declaration of Catherine Russell, Chief
Financial Officer for Northwestern) ("All of Ms. Chapins salary and benefits were paid out of the Therapeutic Day
Treatment Program."); id. at 5 (Chapins' check history, reflecting code "70150," which corresponds to the TBT
program). Nonetheless, Chapins asserts that "the cost of her position had been divided equally among all of the
programs that she supported." ECF No. 19, at 3. As will be discussed, this factual dispute is not material to the
resolution of Chapins' claims. See infra p. 16 n.9.

3

II.
Pursuant to Federal Rule of Civil Procedure 56(a), the court must "grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Glynn v. EDO Corp., 710 F.3d 209,213 (4th Cir. 2013).
When making this determination, the court should consider "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with ... [any] affidavits" filed by
the parties. Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Only disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary

will not be counted."

Id~

(citation omitted). The moving party bears the initial burden of

demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If
that burden has been met, the non-moving party must then come forward and establish the
specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
In determining whether a genuine issue of material fact exists, the court views the
facts and draws all reasonable inferences in the light most favorable to the non-moving
party. Glynn, 710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)).
Indeed, "[i]t is an 'axiom that in ruling on a motion for summary judgment, the evidence of
the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her]
favor."' McAirlaids, Inc. v. Kimberly-Clark Corp., No. 13-2044, 2014 WL 2871492, at *1

4

(4th Cir. June 25, 2014) (internal alteration omitted) (citing Tolan v. Cotton, 134 S. Ct. 1861,
1863 (2014) (per curiam)). Moreover, "[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not
those of a judge .... "Anderson, 477 U.S. at 255. However, the non-moving party "must set
forth specific facts that go beyond the 'mere existence of a scintilla of evidence."' Glynn, 710
F.3d at 213 (quoting Anderson, 477 U.S. at 252). Instead, the non-moving party must show
that "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict
for that party." Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th
Cir. 2005) (quoting Anderson, 477 U.S. at 249). "In other words, to grant summary judgment
the [c]ourt must determine that no reasonable jury could find for the nonmoving party on
the evidence before it." Moss v. Parks Corp., 985 F.2d 736,738 (4th Cir. 1993) (citing Perini
Corp. v. Perini Canst., Inc., 915 F.2d 121, 124 (4th Cir. 1990)).

III.
The court first considers Chapins' FCA claim. The anti-retaliation provision of the
FCA prohibits adverse action against employees because of "lawful acts done ... 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). To establish retaliation, a plaintiff must show (1) she
engaged in "protected activity," (2) her employer knew about that activity; and (3) her
employer took action against her as a result. Glynn v. EDO Corp., 710 F.3d 209, 214 (4th
Cir. 2013).
Northwestern argues it is entitled to summary judgment on the first and third
requirements. First, reporting Matthews for discrepancies in her timesheets does not

5

constitute protected activity because "there is no evidence in the record that [Northwestern],
the employer, had or intended to commit a fraud against the government." ECF No. 18, at
9. As to the third requirement, Northwestern argues that its conduct "neither occurred
within the [statutory] limitations period nor rises to the level of retaliation[,] and that the
decisions with respect to [Chapins'] termination and non-selection for an office manager
position were based on legitimate business reasons unrelated to [Chapins'] reports three
years earlier." Id. at 9-10. Though Chapins likely engaged in protected conduct when she
reported Matthews' for inaccurate billing, the court agrees that Chapins has failed to show
that a reasonable jury could find that Northwestern retaliated against her. Because all three
elements are necessary to establish a retaliation claim, this failure compels the grant of
summary judgment to Northwestern.

A. Protected Activity
Congress amended 31 U.S.C. § 3730(h) in 2010 by adding "efforts to stop 1 or more
violations" of the FCA as protected activity under the statute. Thus, employee action is
protected if it is taken (1) "in furtherance of an action" under the FCA, or represents (2)
"other efforts to stop 1 or more" FCA violations. 31 U.S.C. § 3730(h). Proof that the FCA
has been violated is not necessary to establish protected activity. Graham Cty. Soil & Water
Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 416 n.1 (2005). In fact, in
some circumstances,§ 3730ch) "protects an employee's conduct even if the target of an
investigation or action to be filed Us] innocent." Id. at 416.
Activity is protected under the first prong if it meets the "distinct possibility"
standard. Mann v. Heckler & Koch Def., Inc., 630 F.3d 338, 344 (4th Cir. 2010); Layman v.

6

MET Labs, Inc., No. RDB-12-2860, 2013 WL 2237689, at *7 (D. Md. May 20, 2013).
"Under this standard, protected activity occurs when an employee's opposition to fraud
takes place in a context where 'litigation is a distinct possibility, when the conduct reasonably
could lead to a viable FCA action, or when ... litigation is a reasonable possibility."' Mann,
630 F.3d at 338 (ellipsis in original) (quoting Eberhardt v. Integrated Design & Const., Inc.,
167 F.3d 861, 869 (4th Cir. 1999)).
The second prong ("other efforts to stop" FCA violations) protects a wider range of
activity. Carlson v. DynCorp Int'l LLC, 657 F. App'x 168, 171 (4th Cir. 2016); see Smith v.
Clark/Smoot/Russell, 796 F.3d 424, 434 (4th Cir. 2015) (second prong "plainly
encompasses more than just activities undertaken in furtherance of a False Claims Act
lawsuit"). In Carlson, the plaintiff argued he was retaliated against for his efforts to stop an
FCA violation by his employer. 657 F. App'x at 168-69. The court "assume[d], without
deciding," that "efforts to stop 1 or more violations" are "protected activity where those
efforts are motivated by an objectively reasonable belief that the employee's employer is
violating, or soon will violate, the FCA." 3 Id. at 172.
Northwestern argues Chapins cannot prevail under either prong; because "there is no
evidence that [Chapins] intended to file a qui tam suit," her actions cannot have been taken
"in furtherance of'' an FCA action. ECF No. 18, at 8. Moreover, under the second prong,
Northwestern argues that Chapins cannot have had a reasonable, good faith belief that it

3

This "objectively reasonable standard" was applied by other circuits to the pre-amendment version of§ 3 730(h). Id.
(citing cases from the Sixth, Seventh, Eighth, and Ninth Circuits). Moreover, the "objectively reasonable" standard
"does not substantially depart" from the "distinct possibility" standard: a distinct possibility of litigation "requires that
protected activity relate to company conduct that involves an objectively reasonable possibility of an FCA action." Id. at
172 n.* (internal quotation marks omitted) (quoting Mann, 630 F.3d at 338). Thus both standards are closely related: a
plaintiff who acts on an objectively reasonable basis will be protected by the FCA.

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would have violated the FCA, because, "once [Chapins] reported her initial concerns, she
learned of the various efforts to prevent [fraudulent billing] and was requested to assist in
verifying time for employees of the TDT program." Id. at 9 (footnote omitted). The court
disagrees.
Even accepting that, once Chapins reported Matthews, she was confronted with
incontrovertible proof that Northwestern would not submit fraudulent bills to the
government, this still does not rebut Chapins' contention that she harbored an objectively
reasonable belief that an FCA violation might occur before and during the process of
reporting Matthews. The FCA does not define protected conduct so narrowly; in particular,
protected conduct does not lose this status simply because the whistleblower later learns
information that disproves her belief in an FCA violation. Instead, to be protected as a
whistleblower, Chapins need only "evince some attempt to expose possible fraud," and
provide "some suggestion of impropriety or illegality by the employer." United States ex rel.
Owens v. First Kuwaiti Gen. Trading & Contracting Co., 612 F.3d 724, 735 (4th Cir. 2010).
Chapins meets this burden: viewing the facts in her favor, she has demonstrated a
good faith, objectively reasonable belief in potential fraud against the government. Chapins
"reported her suspicions" that Matthews "submitted false claims for Medicaid and false
timesheets to her direct [s]upervisor, Barbara I<.:ibler." ECF No. 19, at 2. These suspicions
were based on "numerous instances of inaccurate documentation being submitted for
Medicaid reimbursement," which Chapins had observed for "a couple of years, ...
minimum." Chapins Dep. Tr., ECF No. 25, at 20-21. When asked for examples, Chapins
responded,

8

[T]here's no way that I can recall the countless situations that
were dishonest from her. She would sign off on documentation,
for instance, that-and then allow it to be billed knowing that
she had never met the requirements that Medicaid set forth for
that particular document. That happened countless times, way
too many for me to recall.
She would lie to her supervisor. Q: About what? A: Everything,
where she was, what time she was there, what she was doing,
and the list goes on.
Id. at 20:21-21:17. Most importantly, there is no suggestion in the record that, during her
investigation of Matthews' conduct, Chapins was aware of Northwestern's internal auditing
procedures, or any other facts that would suggest that Matthews' fraudulent claims would
not be passed on to the government. In the absence of such information, Chapins behaved
reasonably in believing that Matthews' false claims would be accepted by her employer and
would ultimately result in fraud on the government. Accordingly, a reasonable jury could
find that Chapins engaged in protected conduct under the FCA.

B. Retaliation
Section 3730(h)(1) entitles an employee to relief when that employee is "discharged,
demoted, suspended, threatened, harassed, or in any other manner discriminated against in
the terms and conditions of employment because of' acts protected by the FCA.
Many courts analyze the issue of retaliation and pretext in FCA
cases in the context similar to the McDonnell Douglas test,
which states that once a plaintiff establishes a prima facie case
of discrimination, the burden of production, not persuasion,
shifts to the defendant to produce evidence of a legitimate,
nondiscriminatory reason for the adverse action. 4
4

"The Fourth Circuit has not yet decided whether [the] McDonnell Douglas Corp. burden-shifting analysis applies to
whistleblower claims under the FCA, although other Circuits have." Wilson v. Raytheon Tech. Servs. Co., No. 1:12-cv1437, 2014 WL 12520031, at *4 n.9 (E.D. Va. Aug. 14, 2014) (citing Scott v. Metro Health Corp., 234 Fed. App'x 341,
346 (6th Cir. 2007)). This court uses the McDonnell Douglas framework, as the court in Wilson did, because it is widely
endorsed by other circuits, see, e.g., Diaz v. Kaplan Higher Educ.. L.L.C., 820 F.3d 172, 175 (5th Cir. 2016); United

9

Dillon v. SAIC, Inc., No.1-12-cv-390, 2013 WL 324062, at *9 (E.D. Va.Jan. 28, 2013)
(citations omitted). "Once a legitimate reason [for the challenged employment action] is
articulated, the burden then shifts back to 'the plaintiff to prove that the proffered reason is
merely a pretext and that retaliatory animus motivated the adverse action."' Elkharwily v.
Mayo Holding Co., 823 F.3d 462,470 (8th Cir. 2016) (quoting Pedersen v. Bio-Med.
Applications ofMinn., 775 F.3d 1049, 1054 (8th Cir. 2015)).
Chapins essentially complains of three courses of retaliatory conduct. The first
involves alleged harassment by Matthews' subordinates, Gleason and Kipler's failure to
remedy said harassment, and Gleason's own "campaign of harassment," which, according to
Chapins, temporarily ceased upon the intervention of CEO David Toth, but resumed when
Toth retired. See ECF

No.1,~~

12-17. Second, Northwestern terminated Chapins when the

TDT program was discontinued. Id.

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18. Third, Northwestern failed to hire Chapins for the

"Office Manager II" position, instead choosing another applicant with less relevant
experience. Id.

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20-22. Ultimately, the court must conclude that Chapins' evidence related

to these three courses of conduct fails to demonstrate retaliation on the part of
Northwestern.
1. Harassment at Work

Chapins complains that coworkers and supervisors retaliated against her through a
campaign of harassment that began after she reported Matthews for fraud in 2011. Chapins'
allegations in this regard are far from specific, and leave the court skeptical that she has
States ex rel. Schweizer v. Oce N.V., 677 F.3d 1228, 1240-41 (D.C. Cir. 2012); Harrington v. Aggregate Indus. Ne.
Region, Inc., 668 F.3d 25 (1st Cir. 2012); Scott v. Metro Health Corp., 234 Fed. App'x 341, 346 (6th Cir. 2007), and
because "the McDonnell Douglas approach fits comfortably with the test that courts generally apply to retaliation claims
under section 3730(h)(1)." Harrington, 668 F.3d at 30.

10

shown that Northwestern did "something that 'well might have "dissuaded a reasonable
worker from making or supporting a charge of discrimination.""' Smith, 796 F.3d at 434
(quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67-68 (2015)). Chapins
complains of "[c]ountless things" that demonstrate a pattern of retaliation by Northwestern,
Chapins Dep. Tr., ECF No. 25, at 28:14, but her examples are unpersuasive. Matthews "no
longer came to [her] office to request a document or she sent other people. Id. at 27:4-6.
Matthews and coworkers aligned with Matthews "bad-mouth[ed her] to the TDT staff,"
"complained about [her] about nonexistent issues," and sent emails to Kibler "complain[ing]
about various aspects of how [Chapins] handled a situation for her." Id. at 28:14-29:8. These
complained-of activities, while likely frustrating, do not demonstrate a pattern of retaliation
on the part of her employer; rather, they, at worst, imply discord among co-equal employees.
Moreover, Chapins cites other acts that do not seem to be aimed at her or connected to her
protected activity: coworkers "slam[med] doors," id. at 29:18, Matthews failed to notify the
office of her location, id. at 30:13-14, and "yell[ed] ... that the toaster oven had been left
on" when "[s]he knew that [Chapins] was the one that left it on." Id. at 40:4-9.
Rather than demonstrating a pattern, these events seem too "isolated and
ambiguous" to suggest retaliation by anyone, let alone Northwestern management. See
O'Connor v. Consol. Coin Caterers Corp., 56 F.3d 542, 548-49 (4th Cir. 1995), rev'd on
other grounds, 517 U.S. 308 (1996). Moreover, there is evidence that Northwestern took an
active role in attempting to remedy the discord between Chapins and her coworkers. See
Chapins Dep. Tr., ECF No. 25, at 25:17-26:1 ("After I made the report, I was told that ...
they were going to do whatever they could to protect the whistleblower being made [sic].");

11

Kibler Dep. Tr., ECF No. 24, at 31:7-9.
Regardless, the court need not decide the sufficiency of Chapins' claims because the
vast majority of these events occurred outside the statutory limitations period. 31 U.S. C. §
3730(h)(3) requires that retaliation actions under the FCA "not be brought more than 3 years

after the date when the retaliation occurred." 5 Chapins flied her complaint on May 23, 2016.
See ECF No. 1. In her deposition, Chapins admits that the allegedly retaliatory conduct by
coworkers "ended" after Clare Matthews and Julie Ebersole left Northwestern in "April or
May" of 2012. Chapins Dep. Tr., ECF No. 25, at 113:13, 116:16. Thus, Chapins may not rely
on the alleged retaliation of Chapins, Ebersole, or any other coworker-·or, indeed, any
other event that took place prior to May 23, 2013.
After removing the foregoing from consideration, it is clear that Chapins' remaining
allegations as to actions taken prior to her termination are simply insufficient to establish
retaliation under the FCA. That is because the only conduct Chapins complains of that could
have taken place after May 2013 is largely attributable to Mark Gleason.6 Chapins complains
that Gleason made derogatory remarks to "[o]ne of his supervisees," Holly Markley. Chapins
Dep. Tr., ECF No. 25, at 51:10-19. Though Chapins said that Markley relayed Gleason's
comments to her, Chapins could not remember anything specific he said. Id. at 52:2-53:4.

5

Northwestern claims that "[t]he FCA does not provide a specific limitations period for claims of retaliation." ECF No.
18, at 12. Instead, Northwestern, citing Graham, 545 U.S. at 422, and United States ex rel. Herndon v. Appalachian Reg.
Cmty. Head Start. Inc., 572 F. Supp. 2d 663, 664 (W.D. Va. 2008), argues that "the most closely analogous state statute
of limitations is to be used-in this case, the two year period provided by Va. Code Ann.§§ 8.01-243(A) and 8.01-248."
ECF No. 18, at 12. Chapins at no point attempts to rebut this argument. See generally ECF Nos. 1, 19. But, Graham and
Herndon were decided before Congress amended the FCA retaliation provision in 2010 to provide for a three-year
limitations period. See Gilbert v. St. Rita's Profl Servs., LLC, No. 3:11cv2097, 2012 WL 2344583, at *4 (N.D. Ohio June
20, 2012). That neither party saw fit to refer to the plain text of the statute at issue in this case is surprising.
6 Chapins does not state that Gleason's behavior took place after May 2013. However, she does claim that "after Toth's
retirement, Gleason resumed his campaign of hostility." ECF No.1,~ 17. Thus, viewed in the light most favorable to
Chapins, it is reasonable to assume that this "campaign of hostility" included some conduct that took place after May
2013.

12

Other than this complaint of unspecified aspersions by Gleason, Chapins is silent on his
alleged wrongdoing. 7
Chapins has simply brought forward too little information to allow the court to
conclude that these were any more than "stray or isolated comments unconnected to the
employment decision"; thus, they "do not constitute direct evidence of retaliation." Glynn v.
Impact Sci. & Tech., Inc., 807 F. Supp. 2d 391, 416 (D. Md. 2011) (citing O'Connor, 56 F.
3d at 548-49).

2. Chapins' Termination
Chapins claims that when Northwestern cancelled the TDT program in spring 2014,
it "used this occasion" as pretext to justify terminating her in retaliation for her fraud
allegations. ECF No. 1, ~ 18. To support this argument, Chapins claims that her "salary and
benefits were split equally between [four] programs," and, rather than terminating her,
Northwestern could have "redistributed [her salary] to the other three [programs] that were
successful." 8 Chapins Dep. Tr., ECF No. 25, at 86:12-16.
Chapins faces an uphill battle in her attempt to establish a prima facie case of
retaliation. First, it is uncontested that the closure of the TDT program led Northwestern to
terminate thirty-three other employees, see ECF No. 18, at 11-most or all of whom,
presumably, did not engage in protected activity under the False Claims Act. As such,
Chapins appears to admit that Northwestern's decision to scuttle the TDT program was
nonpretextual, but argues that it was used as cover for the decision to retaliate against her.
7

Of course Chapins also complains of Gleason's conduct during her termination and subsequent job interview. These
allegations are discussed infra pp. 13-20.
8 Northwestern disputes this narrative, and maintains that Chapins' funding came solely from the TDT program. See
supra 2 n.2. Chapins admits that no one at Northwestern told her she was classified as a TDT employee in order to
justify terminating her. Chapins Dep. Tr., ECF No. 25, at 91:18-20, 93:9-10.

13

See Chapins Dep. Tr., ECF No. 25, at 114:10-16 (acknowledging the TDT program was
experiencing financial difficulties prior to closure). However, Chapins still faces the stark
lack of temporal proximity between her protected conduct and Northwestern's adverse
employment decision.
Chapins reported Matthews in February 2011, ECF No. 1, ~ 10; she received notice
of her termination on April29, 2014, ECF No. 18, at 13. "[T]he discharge of an employee
soon after [s]he engages in a protected activity is 'strongly suggestive of retaliatory motive,'
and 'gives rise to a sufficient inference of causation to satisfy the prima facie requirement."'
Coursey v. Univ. ofMd. E. Shore, 577 Fed. App'x 167, 175 (4th Cir. 2014) (internal citations
omitted) (quoting Carter v. Ball, 33 F.3d 450,460 (4th Cir. 1994), and Kingv. Rumsfeld, 328
F.3d 450, 460 (4th Cir. 1994)). The converse is also true: "'[t]emporal proximity between the
protected activity and the adverse action is a significant factor in considering a circumstantial
showing of causation,' and '[t]he causal connection may be severed by the passage of a
significant amount of time, or by some legitimate intervening event."' Feldman v. Law
EnforcementAssocs. Corp., 752 F.3d 339,348 (4th Cir. 2014) (brackets in original) (internal
citations omitted) (quoting Tice v. Bristol-Myers Squibb Co., ALJ No. 2006-SOX-20, 2006
WL 3246825, at *20 (Dep't of Labor Mar. 4, 2004), and Halloum v. Intel Corp., ALJ No.
2003-SOX-7, 2004 WL 5032613, at *4-5 (Dep't of Labor Mar. 4, 2004)).
Thirty-eight months elapsed between Chapins' report on Matthews and her
termination. This is longer than the twenty-month gap that the Fourth Circuit found in
Feldman to represent a "complete absence" of temporal proximity, and longer still than the
time periods contemplated in a host of opinions that declined to find temporal proximity.

14

Id.; see, e.g., Nifongv. SOC, LLC, No. 1:16-cv-63, 2017 WL 590290, at *12 (E.D. Va. Feb.
13, 2017) ("It is axiomatic in this circuit that a gap of three months ... between a protected
activity and adverse action is too long to infer a causal nexus."); Perry v. Kappas, 489 Fed.
App'x 637, 643 (4th Cir. 2012) ("[A] three-month lapse is too long to establish causation,
without more."). "Such a lengthy gap in time weighs against a finding that it is more likely
than not that the alleged protected activities played a role in [her] termination." Feldman,752
F.3d at 348.
In response, Chapins argues that "[t]emporal proximity is not the only measure of
cause and effect." ECF No. 19, at 9. As an alternate measure, Chapins advances the
declaration of Debbie A. Lupton, a former Northwestern employee who "believe[s] that
Mark Gleason held a grudge against Kathy Chapins because of her reporting of Clare
MatthewsO ... and that grudge continued the remaining time of her employment." ECF No.
19-1, ,-r 4. Furthermore, Northwestern had options: instead of terminating Chapins, her
salary "could have easily been redistributed to the other three [programs] that were
successful." Chapins Dep. Tr., ECF No. 25, at 86:12-16.
In the face of the extremely long period between protected activity and termination,
Chapins' arguments fail to establish a prima facie case of retaliation. Lupton's declaration,
standing alone, is unconvincing. In fact, Lupton does not actually say that she believes
Chapins was fired as a result of Gleason's grudge, only that the grudge "continued the
remaining time of her employment." ECF No. 19-1, ,-r 4. This unsupported affidavit of a
former employee does not "go beyond the 'mere existence of a scintilla of evidence"'
necessary to survive summary judgment. Glynn, 710 F.3d at 213 (quoting Anderson, 477

15

U.S. at 252). Moreover, the decision to terminate the TDT program was not made by
Gleason alone, but was shared between Gleason, CEO Buddy Hall, and financial manager
Katie Russell. Kibler Dep. Tr., ECF No. 24, at 36:18-20. Meanwhile, Chapins suggested
alternative-that her salary be redistributed among other programs-is irrelevant.
Northwestern need not make the best or most accommodating employment decision, as
long as its decision was not motivated by retaliatory animus. 9 See Dejarnette v. Corning Inc.,
133 F.3d 293, 298 (4th Cit. 1998) ("When an employer articulates a reason for discharging
the plaintiff not forbidden by law, it is not our province to decide whether the reason was
wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's
termination." (internal quotation marks omitted) (quoting Giannopoulos v. Brach & Brock
Confections, Inc., 107 F.3d 406, 410-11 (7th Cit. 1997))); Hawkins v. PepsiCo, Inc., 203
F.3d 274, 279 (4th Cit. 2000) (same). Northwestern could have continued to employ
Chapins, but it was also free to decide not to, and, barring any material evidence of
retaliatory intent, a court may not interfere with an employer's lawful practices.

3. The Office Manager II Position
Chapins argues that Northwestern's decision to not select her for another office
manager position was retaliatory. In support, she points out that interviews were evaluated
based entirely on subjective criteria, ECF No. 1, ~ 26, "the tone set by Gleason and Kibler
[in the interview] was hostile, intimidating, and antagonistic," id.

~

21, Gleason wore

sunglasses in order to "not validate [Chapins] with eye contact," Chapins Dep. Tr., ECF No.
9

For the same reason, Chapins' contention that the funding for her position was split between several programs (which
Northwestern disputes) is immaterial. There is no disagreement over the fact that some of Chapins' funding came from
the TDT program; moreover, Chapins spent a large percentage of her time servicing the TDT program. As such, when
Northwestern cancelled the TDT program, it was free to conclude that maintaining Chapins' position, with fewer job
duties and less funding with which to accomplish those duties, was no longer economically viable.

16

25, at 98:6-8, and the duties of the "Office Manager II" position were so similar to Chapins'
former position that she was "basically applying for [her] own job again," id. at 98:20-22.
As an initial matter, that the lack of temporal proximity between Chapins' protected
conduct and the decision not to re-hire her is more marked here than with Northwestern's
termination decision, given that the decision not to rehire Chapins was made after she was
terminated. Still, assuming arguendo that Chapins has made out a prima facie case of
retaliation, the burden shifts to Northwestern to articulate a nonretaliatory reason for
termination. See Dillon, 2013 WL 324062, at *9.
Northwestern has done so: Clark was chosen over Chapins because Clark "scored
higher on the interview and ... it was believed that she was a better fit for the position."
ECF No. 18, at 2-3. This decision was ultimately made by Kibler, not Gleason. Kibler Dep.
Tr., ECF No. 24, at 60:16-19. Despite being "very excited with how [Chapins] performed,"
and "concerned for [her] ... knowing ... that she had already been notified that her position
was being eliminated," Kibler eventually chose the applicant with the higher interview
scores. Id. at 60:1-8. To show that this justification was legitimate and not pretextual,
Northwestern points out that I<ibler delayed the hiring process specifically so that Chapins
could apply-a measure she hardly would have taken if she never intended to take Chapins'
application seriously. ECF No. 20, at 11. Moreover, I<ibler actually recommended that
Chapins receive the position if Clark declined it-again, an action inconsistent with any
retaliatory motive. ECF No. 18, at 6.
Northwestern also contests Chapins' arguments. In her deposition as Northwestern's
representative, I<ibler acknowledged that "a lot of the duties were very similar" between the

17

Chapins' former position and the Office Manager II job. Kibler Dep. Tr., ECF No. 24, at
39:10-11. However, they were not identical: "unlike the TDT program, there wasn't a
program supervisor that was involved and on-site on a regular basis. So when it came to
certain functions, such as, ... the doctor services and management of schedules and
appointments, oftentimes decisions fell on the office manager in that position." Id. at 39:1118. Moreover, Sarah Clark also had relevant experience: a change to Northwestern's software
iri April2014 meant that "there weren't a whole lot of differences between [the] secretarial
positions and [the] Office manager [I] level, due to the way the system was going to
operate." Id. at 44:8-14. By contrast, Chapins' prior experience was supervisory in nature,
whereas Clark, in her previous position as secretary in the Crisis Response Center, actually
performed many of the tasks that were subsequently assigned to the Office Manager II
position. Id. at 45:21-46:1, 47:3-8. As to the atmosphere in the interviews, I<ibler recalls that
both candidates were "nervous," but neither interview was more strained than the other. Id.
at 49:19-50:6. Finally, Gleason wore sunglasses not to avoid validating Chapins with eye
contact, but "to minimize the effects of a medical condition." ECF No. 20, at 8.
Given Northwestern's asserted reason for not rehiring her, the burden shifts back to
Chapins to show that this reason was merely pretextual. Chapins largely repeats her earlier
arguments: she was more experienced and had more relevant knowledge than Clark, the
interview scoring system was wholly subjective, 10 her interview was antagonistic, and
Gleason wore sunglasses. Recognizing that the "self-assessment of the plaintiff' is irrelevant

°

1

Chapins also argues that "Gleason and Kibler did not follow standard policies and procedures in relying solely on the
[interview] scores." ECF No. 19, at 11. She bases this assertion on her own understanding of Northwestern's hiring
policies, and "fails to cite to any specific policy regarding the selection of applicants." ECF No. 20, at 10. Simply put,
this "unsubstantiated" and "conclusory allegationD do[es] not have sufficient 'probative force to reflect a genuine issue
of material fact."' Evans, 80 F.3d at 960 (quoting Goldberg v. B. Geren & Co .. Inc., 836 F.2d 845, 848 (4th Cir. 1988)).

18

to a retaliation claim, Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 960-61 (4th Cir.
1996), Chapins points to Lupton's characterization of her as "'vastly' more qualified than the
other candidate, who is described as having minimal qualifications for the job." ECF No. 19,
at 10 (quoting ECF No. 19-1, ~~ 8, 9).
Chapins has failed to demonstrate that Northwestern's decision was pretextual. For
the most part, she reiterates arguments previously addressed by Northwestern. She claims
she was qualified for the Office Manager II position, and Clark was not. However, she does
nothing to rebut Northwestern's argument that changes in software and in the relevant job
duties of the position meant that Clark in fact had qualifications Chapins lacked. Lupton's
declaration cannot cure this defect, because Lupton only worked at Northwestern until
August 2013, see ECF No. 19-1, ~ 1, and thus would not have been privy to the changes that
rendered Clark's experience germane.
Chapins' response to Northwestern's arguments is unconvincing. Chapins offers
some (by no means uncontested) evidence that she would have been the better choice for
the Office Manager II position. However, Northwestern was not obligated to choose the
most experienced, or even best candidate. See Anderson v. Westinghouse Savannah River
Co., 406 F.3d 248, 272 (4th Cir. 2005) (The court does "not sit as a 'super-personnel
department weighing the prudence of employment decisions' made by the defendants."
(quoting DeJarnette, 133 F.3d at 293)). Moreover, Chapins fails to show that Northwestern
believed her to be the best candidate for the job. In fact, in the face of a thirty-eight month
temporal gap between reporting Matthews and the job interview, Chapins supplies no
evidence that her protected activity was actually in contemplation by Kibler, Gleason, or any

19

other member of Northwestern's management. By essentially standing on her pleadings,
Chapins has failed to put forward any evidence that Northwestern's articulated justification
for failing to rehire her was pretextual. The court GRANTS Northwestern's motion for
summary judgment as to Chapins' FCA retaliation claim, and now turns to her claim of age
discrimination under the ADEA.

IV.
Under the ADEA, an employer may not "fail or refuse to hire ... any individual ...
because of such individual's age." 29 U.S.C. § 623(a)(1). "Age must be the 'but-for' cause of
the employer's action for the action to violate the ADEA." 11 Buchhagen v. ICF Intern., Inc.,
545 F. App'x 217, 220 (4th Cir. 2013) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
177-78 (2009)). "In assessing claims of age discrimination brought under the ADEA, the
Fourth Circuit, like others, has applied some variant of the basic evidentiary framework set
forth in McDonnell Douglas." 12 O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308,
311 (1996).
Importantly, Chapins does not challenge her termination under the ADEA, only
Northwestern's failure to rehire her. See ECF No. 1, ~ 33. Thus, in this context, Chapins
bears the initial burden to make out a prima facie case of age discrimination by showing: "(1)
[s]he is a member of the protected class (age forty or older); (2) [s]he applied for and was
qualified for the position [s]he sought; (3) [Northwestern] rejected h[er]; and (4)
11 Chapins argues that she need only demonstrate that age "was a motivating factor in the adverse decision." ECF No.
19, at 12 (citing Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277,284 (4th Cir. 2004)). However, Hill was
decided before the Supreme Court decided Gross, which required ADEA plaintiffs to demonstrate but-for causation.
Gross v. FBL Fin. Servs .. Inc., 557 U.S. 167, 177-78 (2009).
12 In O'Connor, the Supreme Court assumed, without deciding, that the McDonnell Douglas evidentiary framework
applies to ADEA cases. 517 U.S. at 311. "Nonetheless, the United States Court of Appeals for the Fourth Circuit has
continued to apply it in that context .... " Cartee v. Wilbur Smith Assocs., Inc., No. 3:08-4132-JFA-PJG, 2010 WL
5059643, at 2 n.2 (D.S.C. Oct. 6, 2010) (collecting cases).

20

[Northwestern] hired another similarly situated individual for the position who was
substantially younger than [her]." Zaccagnini v. Charles Levy Circulating Co., 338 F.3d 672,
. 675 (7th Cir. 2003).
As with Chapins' FCA retaliation claim, if she establishes a prima facie case, the
burden shifts to Northwestern to '"rebut the presumption of discrimination' by producing
evidence that the employment action in question was taken 'for a legitimate,
nondiscriminatory reason."' Stokes, 206 F.3d at 429 (quoting Texas Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248,254 (1981)). If Northwestern meets this burden, "the presumption
raised by the prima facie case is rebutted and 'drops from the case,' and [Chapins] then bears
the ultimate burden of proving that [s]he has been the victim of intentional discrimination,"
and that the employer's articulated reason is pretext for age discrimination. Id. (quoting
Burdine, 450 U.S. at 255 n.10). Even at the summary judgment stage,
an employer would be entitled to judgment . . . if the record
conclusively revealed some other, nondiscriminatory reason for
the employer's decision, or if the plaintiff created only a weak
issue of fact as to whether the employer's reason was untrue
and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). Moreover, "a
plaintiff's own assertions of discrimination in and of themselves are insufficient to counter
substantial evidence of legitimate nondiscriminatory reasons" for the adverse employment
decision. Dockins v. Benchmark Commc'ns, 176 F.3d 745,749 (4th Cir. 1999) (internal
quotation marks omitted) (quoting Williams v. Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir.
1989).
The court is satisfied that Chapins has made out a prima facie case of age
21

discrimination. She pled that she was fifty-one years old at all times relevant to this
complaint. ECF No. 1, ~ 5. It is uncontested that she applied for the Office Manager II
position, and, while Northwestern has contested Chapins' claim that she was "basically
applying for [her] own job again," Chapins Dep. Tr., ECF No. 25, at 98:20-22, it has not
claimed that she was unqualified for the position. 13 It is likewise uncontested that Chapins
was not selected for the position. Finally, Chapins has claimed that Clark was seventeen
years her junior, ECF No. 1, ~ 25, and Northwestern has not disputed this figure. See ECF
No. 20, at 9-10.
Accordingly, the burden shifts to Northwestern. Northwestern's proffered legitimate
justification for the decision to hire Clark instead of Chapins is the same here as in the
retaliation context: Clark received higher scores on the interview evaluation forms, and,
given the applicants' approximately equivalent qualifications, Northwestern chose to offer
the position to her. See supra pp. 17-18. Of particular moment here is the fact that Kibler
delayed the hiring process to allow Chapins to apply, commented on how well Chapins
interviewed, and recommended that Chapins be offered the position if Clark turned it down.
See ECF No. 20, at 10-11; supra p. 22 n.13.
Thus, the final burden falls on Chapins; the question is whether she has provided
enough evidence that she was a victim of age discrimination to allow a reasonable jury to
find for her on her ADEA claim. Chapins' showing in this regard fails in the same way her
retaliation claim failed. Chapins argues that Northwestern's decision was pretextual because
Indeed, Northwestern would be hard pressed to do so, given that its personal representative, Barbara Kibler, delayed
the hiring process to allow Chapins to apply, "comment[ed] how well [Chapins] had done in the interviews," and "spent
a couple of days really pondering," before ultimately recommending that Chapins not be chosen for the position. Kibler
Dep. Tr., ECF No. 24, at 54:2-11. In fact, Kibler recommended that Chapins receive the position if Clark had declined.
ECF No. 18, at 6.
13

22

the scoring system was subjective, Clark was "noticeably younger than Chapins," and
"Chapins had engaged in a considerable amount of training and inentoring of other staff," in
contrast to Clark's lack of any management experience whatsoever. See ECF No. 19, at 1213. In essence, Chapins continues to argue that Northwestern's hiring decision was incorrect
(or that Northwestern would do better to develop objective standards for judging
interviewees). Chapins "may not 'simply show the articulated reason is false; [s]he must also
show that the employer discriminated against [her] on the basis of age."' Wood v. Town of
Warsaw, 914 F. Supp. 2d 735, 742 (E.D.N.C. 2012) (quoting Reeves, 530 U.S. at 147).
Chapins presents little that suggests Northwestern's reason was false, and nothing that
shows the decision to hire Clark was made on the impermissible basis of age, as she must to
survive summary judgment. Whether under the ADEA or FCA, this court is not empowered
to second guess the hiring decisions of employers absent an indication of impermissible
motivation sufficient to survive summary judgment.
Moreover, Chapins continues to rely on the Lupton declaration, which is a slim reed
indeed. As discussed supra, Lupton left Northwestern in August 2013, and thus would not
have been privy to the changes in job description that rendered Clark's experience more
germane (and Chapins' experience less so); nor could Lupton knowledgeably attest to Clark's
lack of experience, given that Clark continued to accrue experience for at least eight months
after Lupton left Northwestern. Lupton opines that "selection for the position was based
upon factors other than qualifications," ECF No. 19-1, ~ 8; however, she fails to present any
reason to believe that the primary factor of which she speaks was age. Instead, she confines
her declaration to supporting Chapins' FCA retaliation claims. See generally id. This vague,

23

unsupported allegation does not bolster Chapins' prima facie showing sufficiently to allow it
to rebut Northwestern's proffered legitimate justification for its hiring decision. See
Goldberg, 836 F.2d at 848.
"The ADEA is intended to prevent discrimination based on age, not to confer
increased status upon those who become older." Buchhagen, 650 F. App'x at 830 (quoting
Buchhagen v. ICF Intern., Inc., No. JFM-12-2470, 2015 WL 727947, at *2 (D. Md. Feb. 17,
2015)); see Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 512 (4th Cir. 1994) (The ADEA
is not "a strict seniority protection mechanism."). Chapins demonstrated that she was not
hired for a position, and a substantially younger coworker was. She has done nothing,
however, to suggest that Northwestern's decision was motivated by the relative ages of the
applicants. Because Chapins has entirely failed to show that Northwestern's proffered reason
for hiring Clark was pretextual, the court GRANTS Northwestern's motion for summary
judgment as to Chapins' ADEA claim.

v.
For the foregoing reasons, the court GRANTS Northwestern's motion for summary
judgment (ECF No. 17) in its entirety. An appropriate Order will be entered.
Entered:

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Michael F. tJ rbanski
United St;~tes DistrictJudge

24

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