United States District Court, D. Colorado
OPINION AND ORDER ON MOTION FOR SUMMARY
S. Krieger United States District Court
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.
Court exercises jurisdiction under 28 U.S.C. § 1331.
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.
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.
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.
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updated Pricing Desk Guide superseded the 2007 DOI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.
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).
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. 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.
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.
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.
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).
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.
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).
Retaliation Under ...