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Armstrong v. Arcanum Group, Inc.

United States District Court, D. Colorado

September 25, 2017

MINDY ARMSTRONG, Plaintiff,
v.
THE ARCANUM GROUP INC., Defendant.

          OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

          Marcia S. Krieger United States District Court

         THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment (# 27), the Plaintiff's Response (# 30), and the Defendants' Reply (# 32). For the following reasons, the motion is granted in part.

         I. JURISDICTION

         The Court exercises jurisdiction under 28 U.S.C. § 1331.

         II. BACKGROUND[1]

         Defendant Arcanum Group Inc., called TAG by the parties, is a contractor that provides professional staffing to federal agencies. In this matter, TAG had a contract with the Bureau of Land Management (BLM), a component of the Department of the Interior (DOI). The contract provided, among other things, that the “Government may withdraw a previously issued approval or assignment of Contractor personnel to this contract and direct that the individual be removed from the contract based upon the individual not meeting Government expectations or requirements for personal, professional, or performance standards.” # 27-2 at 15. This contract is subject to a global clause that allows either TAG or the BLM to demand an “interpretation of contract terms.” # 30-5 at 1.

         Plaintiff Mindy Armstrong was employed by TAG. Pursuant to the contract described above, she was placed by TAG as a Lease Administrator at the BLM. Ms. Armstrong prepared reports of the BLM's portfolio of leases for its Real Estate Leasing Services team. Her BLM supervisor was Terry Baker and her TAG supervisor was Steve Cota.[2]

         The BLM leases land from both private entities and the General Services Administration (GSA). Some leases are based upon usable square feet, others upon rentable square feet. The difference is unimportant except that, at one time, the GSA provided in a Pricing Desk Guide that leases measured by usable square feet should be converted using a “global conversion factor” to measurements basted on rentable square feet.

         Ms. Armstrong determined that the GSA failed to include the conversion factor in a subsequent Pricing Desk Guide, which made it inconsistent with a 2007 Department of Interior policy. Ms. Armstrong therefore reasoned that the updated Pricing Desk Guide superseded the 2007 DOI policy, leading her to the conclusion that the BLM was incorrectly calculating its leased footprint in two ways - (1) by using the conversion factor when it should not (thus inflating the total square feet in its portfolio); and (2) by excluding space that it received at no cost from its lessors, a practice the Guide did not authorize.

         The BLM asked Ms. Armstrong to prepare two specific reports that included information regarding BLM leases, both of which would be used in requests to the DOI for funding of additional personnel. One report was designed to show the value of expiring leases (Lease Expiration Report) and the other was designed to show the costs that the BLM was willing to reduce over the upcoming 20 years to justify additional positions (Cost Avoidance Report).

         Because these reports did not comport with her understanding of how the square footage of the leases should be calculated, Ms. Armstrong believed the reports to be based on false information.[3] Ms. Armstrong told Ms. Burns-Fink that the leasing services team was “falsifying data” and Ms. Baker responded that there was nothing fraudulent about the team's calculation of the lease data. After additional back-and-forth, Ms. Baker decided that Ms. Armstrong should be removed from the project. She emailed the BLM contracting officer, Tina Hamalak, stating that Ms. Armstrong should be removed from her contract assignment for “extremely poor performance” which was outlined in an attached justification which included the incident at issue as well as other performance issues. Ms. Hamalak, in turn, notified Mr. Cota at TAG that the BLM wanted Ms. Armstrong “terminated” from the BLM assignment because she was “not working out”. He pressed for an explanation, but Ms. Hamalak was not willing to answer questions. Mr. Cota removed Ms. Armstrong from the BLM assignment. Because TAG had no other assignments for Ms. Armstrong, TAG terminated her employment.

         Five days later, Ms. Armstrong filed a complaint with the Department of Interior Inspector General in accordance with 41 U.S.C. § 4712. The Department of Interior Inspector General failed to act on the complaint within 210 days, and pursuant to statute, Ms. Armstrong then filed her Complaint with this Court.

         Her Complaint (# 1) is brought solely against TAG. In it, she alleges three claims: (1) retaliation in violation of the False Claims Act (FCA): (2) retaliation in violation of the enhanced whistleblower provisions in the National Defense Authorization Act (NDAA); and (3) common-law wrongful discharge (both violation of public policy and retaliation) under Colorado law. TAG has moved for summary judgment on all claims.

         III. LEGAL STANDARD

         Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis OilCo.v.Producer=sGasCo., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

         If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus. Inc. v. Arvin Indus. Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

         If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         IV. DISCUSSION

         A. Retaliation Under ...


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