United States District Court, D. Colorado
OPINION AND ORDER OVERRULING OBJECTIONS, ADOPTING RECOMMENDATION, AND GRANTING MOTION TO DISMISS
MARCIA S. KRIEGER, Chief District Judge.
THIS MATTER comes before the Court pursuant to Ms. Randazzo's Objections (# 50) to the Magistrate Judge's August 22, 2014 Recommendation (# 46) that the Defendants' Motion to Dismiss (# 15) be granted, and the Defendant's response (# 52).
According to Ms. Randazzo's Complaint (# 1), she worked as a Paralegal for Defendants CH2M Hill, Inc. and CH2M Hill Companies, Ltd., under the direct supervision of Defendant Wright. Prior to the events at issue here, the Defendant companies were hired by the U.S. Department of Energy to perform certain professional services the state of Washington. Subsequently, the United States Department of Justice began investigating allegations that the Defendant companies were overbilling the Department of Energy with regard to the services they were performing. Ultimately, the Department of Justice indicated its intention to bring suit against the Defendant companies under the Federal Anti-Kickback Act, 41 U.S.C. § 51, and the False Claims Act, 31 U.S.C. § 3729 et seq., among other claims.
In 2010, the Department of Justice served several subpoenas on the Defendant companies, requesting certain records relating to other forms of potential misconduct, including paying overtime wages to employees for hours that were not actually worked. Mr. Wright was designated by the companies to handle the response to those subpoenas, and he enlisted Ms. Randazzo's assistance. Ms. Randazzo alleges that she "had difficulty receiving information and records" from the Defendant companies, "leaving her suspect that... staff were hiding or destroying potentially damaging records." Mr. Wright informed Ms. Randazzo that the companies' exposure with regard to these matters potentially ran to the hundreds of millions of dollars. Ms. Randazzo became concerned that "Mr. Wright may have participated in the deceptive [overtime] practices himself." She reviewed the documents that the companies planned to submit to the Department of Justice and informed Mr. Wright of circumstances where she believed that responsive documents were missing from the proposed production.
In June 2011, harboring a "legitimate concern that [the companies were] acting unethically, " Ms. Randazzo "confronted Mr. Wright about the questionable document production practices." She "warned Mr. Wright that the missing documents might show that the Company had committed fraud on the United States." She believes that, by doing so, she "put Mr. Wright on notice that she was either taking action in furtherance of a private qui tam action or assisting in a False Claims Act action brought by the Government." Mr. Wright admonished her and instructed her not to speak further about the matter or seek to obtain the additional documents she believed were improperly being withheld. Mr. Wright directed her not to include certain facts in her reports to the Department of Justice, based on what Ms. Randazzo characterizes as "shoddy support" for the companies' position and questionable assertions of fact.
After these events, Ms. Randazzo requested that she be allowed to take time off under the Family and Medical Leave Act ("FMLA") to care for her ailing mother in Florida. She contends that Mr. Wright "discouraged her from doing so, " instead encouraging her to temporarily relocate to the companies' Florida office and work remotely. Characterizing this as a denial of her request to take FMLA leave, Ms. Randazzo states that Mr. Wright did so to retaliate against her for raising concerns about the truthfulness of the companies' responses to the Department of Justice. Nevertheless, it appears that Ms. Randazzo did indeed temporarily relocate to Florida and continued working. However, she alleges that Mr. Wright fired, allegedly without cause, an employee who had been assisting Ms. Randazzo, thereby increasing the workload Ms. Randazzo was required to shoulder.
When Ms. Randazzo returned to the Colorado office from Florida in September 2011, Mr. Wright informed her that she would no longer be working on complying with the Department of Justice subpoenas, and he assigned those tasks to a male paralegal who Ms. Randazzo contends lacked adequate qualifications to perform the job. Mr. Wright chastised the male paralegal for seeking assistance from Ms. Randazzo on the subpoena response project, excluded Ms. Randazzo from projects, criticized her work without justification, changed her working hours without notice, and allegedly took various other steps to retaliate against her.
Ms. Randazzo met with Margaret McLean, Mr. Wright's supervisor, to complain about Mr. Wright's treatment of her, and explained her belief that "the Company appeared to be withholding information and documents" from the Department of Justice, as well as her belief that Mr. Randazzo may have been subjected to age and sex discrimination. Ms. McLean offered to address the matter with Mr. Wright, but, fearing further retaliation, Ms. Randazzo asked Ms. McLean to keep the matter confidential. (Ms. Randazzo believes that Ms. McLean did not comply with that request.)
In August 2011, Ms. Randazzo met with Ms. McLean again, and Ms. McLean instructed Ms. Randazzo to talk to the companies' Human Resources Director. Ultimately, the Human Resources Director recommended a mediation between Ms. Randazzo and Mr. Wright. That mediation was repeatedly re-scheduled, and ultimately never occurred. Instead, on October 17, 2011, Mr. Wright issued Ms. Randazzo a termination notice, stating that "he did not trust her" and accusing her of poor performance. Ms. Randazzo believes that these criticisms were fabricated as a pretext to retaliate against her for raising her concerns about the companies' subpoena responses.
Ms. Randazzo's Complaint alleged eight causes of action, all but the last of which are asserted solely against the companies: (i) retaliation in violation of the False Claims Act, 31 U.S.C. § 3729 et seq.; (ii) common-law wrongful discharge in violation of public policy under Colorado law; (iii) interference with protected rights under the FMLA, 29 U.S.C. § 2615(a)(1); (iv) retaliation in violation of the FMLA, 29 U.S.C. § 2615(a)(2); (v) retaliation in violation of Title VII, 42 U.S.C. § 2000e; (vi) retaliation in violation of the Age Discrimination In Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; (vii) retaliation in violation of the Colorado Anti-Discrimination Act ("CADA"), C.R.S. § 24-34-402; and (viii) common-law intentional infliction of emotional distress, asserted solely against Mr. Wright. (The parties subsequently stipulated (# 45) to the dismissal of the Title VII, ADEA, and CADA-based claims.)
The Defendants moved to dismiss Ms. Randazzo's remaining claims pursuant to Fed.R.Civ.P. 12(b)(6). (# 15) The Court referred that motion to the Magistrate Judge for a recommendation, and on August 22, 2014, the Magistrate Judge recommended that the motion be granted. (# 46) Specifically, the Magistrate Judge found: (i) as to the False Claims Act claim, Ms. Randazzo fails to adequately allege that she took any act or made any express statement "in furtherance of a private qui tam action or assist[ed] in an FCA action brought by the government, " as is required to be protected conduct under that statute; (ii) as to the FMLA interference claim, she failed to adequately allege non-conclusory facts showing that Mr. Wright "discouraged" her from taking FMLA leave; (iii) as to the FMLA retaliation claim, she fails to allege that she actually took any FMLA leave; and (iv) as to the remaining common-law claims, that the Court should decline to exercise supplemental jurisdiction over those claims if all federal claims are dismissed, 28 U.S.C. § 1367(c)(3).
Ms. Randazzo filed timely Objections (# 50) to the Recommendation, arguing: (i) as to the False Claims Act claim, the Magistrate Judge erred in finding that, as a matter of law, Ms. Randazzo was required to expressly notify her employer that she was contemplating a qui tam suit or assisting with an existing False Claims Act suit, and that current law provides that conduct is protected under the Act so long as the employer "could have feared being reported to the government, " a standard Ms. Randazzo claims she meets; (ii) as to the FMLA interference claim, she contends that she adequately alleged that Mr. Wright's "failure to direct [Ms. Randazzo] to [the companies'] Human Resources Department or to otherwise alert human resources of her inquiry" about taking FMLA leave constitutes the requisite interference, and that Mr. Wright was motivated to interfere with her request to take leave by his desire to "reserve his rights to terminate her upon her return from Florida, " an act he could not take if she had chosen to elect to take ...