Opinion
3:14-cv-116/RV-EMT
03-30-2015
JODY GOODWIN, Plaintiff, v. DYNCORP INTERNATIONAL LLC, Defendant
ORDER
ROGER VINSON SENIOR UNITED STATES DISTRICT JUDGE
The plaintiff, Jody Goodwin, brought this case against the defendant, Dyncorp International, alleging retaliation under Florida's Whistleblower Act, Section 448.101, et seq., Florida Statutes (FWA). Discovery is closed. Now pending is the defendant's motion for summary judgment (doc. 60), which the plaintiff has opposed (doc. 72).
After the plaintiff filed his response in opposition, the defendant filed a notice of supplemental authority (doc. 83), and a reply in further support (doc. 93); and the plaintiff filed an “additional document” (doc. 91), and a sur-reply (doc. 90).
I. APPLICABLE LAW
A. Standard of Review
Summary judgment is appropriate if the pleadings, discovery, affidavits, and disclosure materials on file show that there is no genuine disputed issue of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a), (c). The plain language of Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986).
Summary judgment is inappropriate “[i]f a reasonable factfinder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact[.]” Allen v. Board of Public Educ. for Bibb Cty., 495 F.3d 1306, 1315 (11th Cir. 2007). An issue of fact is “material” if it might affect the outcome of the litigation under the governing law. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). It is “genuine” if the record, viewed as a whole, could lead a reasonable jury to return a verdict in favor of the nonmovant. See id.
B. The FWA
The FWA provides, in the subsection pertinent to this case, that an employer may not retaliate against an employee because that employee has “[o]bjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.” Fla. Stat. § 448.102(3). The Eleventh Circuit has held that “the summary judgment analysis for a Title VII retaliation claim should be applied to a claim for retaliatory discharge under the Florida Whistleblower Act.” Rutledge v. SunTrust Bank, 262 Fed.Appx. 956, 957-58 (11th Cir. 2008).
Pursuant to the burden-shifting framework in Title VII retaliation cases, derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817 (1973), a plaintiff must first establish a prima facie case by showing that: (1) he engaged in a statutorily protected activity, (2) he suffered an adverse job action, and (3) there was a causal connection between the two events. See Rutledge, 262 Fed.Appx. at 958. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to rebut the inference of retaliation by presenting a legitimate and non-discriminatory reason for the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. This intermediate burden is “exceedingly light,” see Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997), and, once it has been established, the plaintiff must show that the proffered reason was a mere pretext for retaliation. See Chapman v. AI Transport, 229 F.3d 1012, 1024-25 (11th Cir. 2000).
II. BACKGROUND
The following facts are taken almost exclusively from the plaintiff's deposition testimony (Goodwin Dep.) and from his affidavit filed in opposition to the defendant's motion for summary judgment (Goodwin Aff.). The material facts that are relevant to the issues in this case can be stated briefly.
The defendant operates under contract with the government to transport U.S. Department of State (DOS) personnel by aircraft around the world, including in Iraq. See Goodwin Dep. at 31. In December 2010, the defendant hired plaintiff as Quality Control Manager and sent him to Iraq. Id. at 18, 28. He worked in that capacity for about a year and was then promoted to Fleet Quality Control Manager. Id. at 19, 29. At the time relevant here, his schedule consisted of three consecutive months in Iraq, followed by a month of leave (R&R) at his home in Florida. Id. at 69.
As Quality Control Manager (then Fleet Quality Control Manager), the plaintiff was responsible for quality control of maintenance personnel in Iraq, which included identifying deficiencies or inconsistencies in the work done by the aircraft mechanics. See Goodwin Dep. at 18, 20, 35, 122. If there was “nonconformance” or a deviation from acceptable and standard practice (e.g., a mechanic followed the wrong protocol or used the wrong checklist) --- and if that problem was systemic or severe --- it had to be documented on a Corrective Action Request (CAR) form. See Goodwin Dep. at 39, 42-47. There are generally two different types of CARs. Id. at 41. External CARs are generated by the client (i.e., the government), and they are “stringent”; “severe”; “a major, major, major headache”; and “contract-impeding”. Id. at 41, 52-53. Internal CARs, by contrast, are issued by the company, and they are designed to both identify the problem and send a message to the client that “we are solving our own problems, and we want you to know that we have located this and we have addressed it to give you the sense of confidence that we are on top of it.” Id. at 42, 48. Internal CARs do not typically impede the contract, but they could result in a contract being “pulled” (or lead to lost future contracts), depending on the severity of the problem. Id. at 41, 52- 53. As the person in charge of defendant's quality control in Iraq, it was the plaintiff's job to issue internal CARs, and he did so “quite frequently” and “numerous times.” Id. at 45, 137. He testified that internal CARs are “not necessarily just a bad thing” and, in fact, “can be construed as a good thing” to the extent they let the client know that “you are [on] top of the game.” Id. at 136-37.
In the Fall of 2011, defendant received S-61 helicopters from Afghanistan. See Goodwin Aff. at ¶11. These were older model helicopters with years of use, and they were experiencing power problems in their engine stator vanes. Id. The maintenance crew began making adjustments to the stator vanes, but without using a Stator Vane Indicator Kit (SVIK), which was a special tool required to check that adjustment (doc. 60-9 at ¶24); accord Goodwin Dep. at 57-65, 72-73, 86, 143. As a result, the pilots started to express concerns about the power assurance check process as part of their daily operational checks. See Goodwin Dep. at 57-59. The plaintiff reported this issue to his supervisors in the company, who, in turn, told the DOS. Id. at 60. In response, both defendant and the DOS sent flight representatives to Iraq to address the matter. Id. at 60-63. The crew still did not have an SVIK (one had been ordered but the order was canceled), so the company and the DOS jointly developed a “workaround.” See, e.g., id. at 60-65, 72-74, 80, 145-46.
The stator vane is a part of the engine that directs the flow of air through the compressor, which increases and decreases the flow and gives more power to the engine. See Goodwin Dep. at 57.
In his affidavit, plaintiff appears to object to the term “workaround.” See Goodwin Aff. at ¶14 (“This has been referred to by Dyncorp as a ‘workaround' but I never viewed it as a workaround.”). In fact, it appears from the record that it was plaintiff who had first introduced and used that term at deposition to describe what the DOS and defendant had done. See Goodwin Dep. at 63 (“They came to help us build a workaround which [had] to happen to make the aircraft flyable so the [DOS] dignitaries could be flown around in Iraq.”). In any event, whatever it is called, it is unchallenged that the DOS and the defendant devised a way to perform the check without an SVIK. I will refer to it as the “workaround” merely for ease of reference.
The plaintiff did not know it at the time, but the workaround procedure was improper because the SVIK was still required to do the job precisely. See Goodwin Aff. at ¶¶14-16. The failure to have (and use) the tool was something that plaintiff and everyone else missed for the next year and a half. See Goodwin Dep. at 86-89, 146. On December 12th or 13th, 2012, a few days before plaintiff was scheduled to leave Iraq for his R&R, it was brought to his attention for the first time “in black and white” in the S-61 maintenance manual that the SVIK was required, and he knew it was going to be “a major problem.” Id. at 54, 74-75, 80, 144; accord Goodwin Aff. at ¶16. He felt that he needed to act right away, and his initial reaction was to issue a CAR [see Goodwin Dep. at 53, 144], so he began to gather all the information that would have to be included in the report. See Goodwin Aff. at ¶18.
However, the plaintiff apparently knew all along that the workaround was improper to the extent it violated industry standards in general. See Goodwin Dep. at 63 (acknowledging that he knew the workaround “was a violation” of industry standards, but claiming that the decision “was not made by me. It was made way up higher than me [and] I had nothing to do with that. Nothing at all.”); id. at 141 (impliedly conceding that he knew the workaround violated industry standards, but pointing out that “numerous higher ups” in the company and DOS knew it as well).
At some point, however, the plaintiff “had the thought process and insight to say stop, Jody, don't issue a CAR that could quite possibly get DynCorp to lose the contract”. See Goodwin Dep. at 54. Although he knew that the problem was “severe” enough that it would eventually have to be reported in an internal CAR, “the timing of the issuance of that CAR was critical.” Id. He decided that it would be better to first inform the defendant's Director of Quality Control, Jimmy Prater, so that he, in turn, could tell the DOS that the CAR was coming “because they don't like to get surprises in their mailbox.” Id. After Prater was advised of the problem, he ordered the plaintiff to withhold the CAR at that time and wait for further guidance. Id. at 66-67, 81. This order came during the exact time that plaintiff was leaving Iraq to return to the United States. See Goodwin Aff. at ¶19.
The plaintiff left Iraq on December 14, 2012. See Goodwin Dep. at 68; see also Goodwin Aff. at ¶21. As soon as he arrived home on December 17, he logged into his computer to check if the CAR had been entered. See Goodwin Aff. at ¶24. According to company records, it had indeed been issued that day. Id. at ¶26. Although the CAR contained the “detailed information” that plaintiff had prepared, he acknowledges that he did not author the report. Id.; accord Goodwin Dep. at 144 (“Q. And I don't believe that you were the one who authored the CAR on that subject. A. No, sir, I was not.”). He suggests in his affidavit in opposition to summary judgment, however, that it was filed at his request. See Goodwin Aff. at ¶¶ 24, 26. The day after the CAR was filed, on December 18, 2012, the plaintiff was terminated. Id. at ¶25. He later brought this action against the defendant, alleging a single claim under the FWA.
III. DISCUSSION
The defendant has raised multiple grounds for summary judgment, a number of which appear to be persuasive. For example, the defendant contends that the plaintiff was not an actual “whistleblower” inasmuch as he did not author or file the CAR. The defendant also contends that there is no evidence that the CAR concerned an official policy, activity, or practice of --- nor conduct ratified by --- the company. And lastly, assuming, arguendo, that the plaintiff told the DOS about conduct that related to an official company policy or practice, he did so in Iraq (not Florida), and the FWA does not apply extra-territorially. I need not definitively rule on these seemingly persuasive arguments, however, as summary judgment is clearly appropriate on another ground, namely, the “Manager Rule.”
Indeed, according to plaintiff, nobody at the company even knew that the SVIK was required. When the problem was first discovered, it was reported to the DOS within days, as the plaintiff knew it would be. See Goodwin Depo. at 54; see also McIntyre v. Delhaize America Inc., 403 Fed.Appx. 448, 451 (11th Cir. 2010) (summary judgment properly granted for defendant in FWA case where there was no evidence that the company supported or “ratified” the conduct being reported). To the extent the plaintiff suggests that the timing of the CAR was “critical” and that it should have been reported sooner, it is not clear why a couple of extra days to report an issue that had already existed for around a year and half posed such a problem, particularly since the plaintiff testified at deposition that it was initially his idea to delay the report in the first place. See Goodwin Dep. at 54.
The parties spend a lot of time (and most of their post-motion briefing, see supra note 1) on defendant's additional argument that summary judgment is proper because the CAR did not concern an alleged violation of a duly passed and positive “law, rule, or regulation.” The plaintiff contends that the conduct he was objecting to did not actually have to be against the law (it wasn't); rather, he only needed to have had a good faith and objectively reasonable belief that he was reporting illegal conduct. Florida appellate courts have recently split on this issue. Compare Aery v. Wallace Lincoln-Mercury, 118 So.3d 904, 916 (Fla. 4th DCA 2013) (holding that to engage in a statutorily protected activity under the FWA “all that is required is that the employee have a good faith, objectively reasonable belief that [his] activity is protected by the statute”) with Kearns v. Farmer Acquisition Co., - So.3d -, 2015 WL 574007, at *5-6 (Fla. 2d DCA Feb. 11, 2015) (stating that “we are not persuaded by the Fourth District's opinion in Aery” as the defendant's challenged conduct must have violated “a legislatively enacted law, rule, or regulation”). See also Montgomery v. Titan Florida LLC, 2015 WL 685813, at *3 (M.D. Fla. Feb. 18, 2015) (noting this recent split). I believe that the Kearns decision is the better legal analysis, but I need not venture into this unsettled area of Florida state law because summary judgment is proper on the ground that will be discussed in the text above.
The Manager Rule originated in McKenzie v. Renberg's Inc., 94 F.3d 1478 (10thCir. 1996), and it provides that a management employee does not engage in protected activity --- for purposes of a retaliation claim --- unless he steps outside his normal job duties to take action adverse to his employer. See id. at 1486-87 (rejecting retaliation claim of a personnel director who reported wage and hour violations to management; her report was not protected opposition to an illegal employer action but, rather, was part of her job to alert the employer to possible violations and liability); see also, e.g., Hagan v. Echostar Satellite, LLC, 529 F.3d 617 (5th Cir. 2008); EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998). The rule has been widely applied in “whistleblower” cases based on both federal and state statutes. As the district court observed in Wolf v. Pacific National Bank, 2010 WL 5888778, at *10 (S.D. Fla. Dec. 28, 2010), “it is well established in [whistleblower] cases that a plaintiff does not engage in protected activity by disclosing violations of law as part of his job responsibilities.” Id. at *10 (citing Sasse v. United States Dep't of Labor, 409 F.3d 773, 789-90 (6th Cir. 2005) (affirming dismissal of claim as a matter of law where alleged whistleblower had the job responsibility of investigating alleged violations of the law); Huffman v. Office of Personnel Management, 263 F.3d 1341, 1351-53 (Fed. Cir. 2001) (same)); Bonds v. Leavitt, 629 F.3d 369, 382 (4th Cir. 2011) (suggesting management employee is not engaged in protected conduct if he reports a problem “as part of [his] normal duties”).
In this circuit, the unpublished decision in Brush v. Sears Holdings Corporation is particularly instructive (although not controlling as precedent). See 466 Fed.Appx. 781 (11th Cir. 2012). The plaintiff in that case, Janet Brush, was employed by Sears as a Loss Prevention District Coach, and she was tasked with, inter alia, investigating sexual harassment claims. During the course of one investigation, she discovered that a store manager had raped an employee, Jane Doe. She reported this to Sears, which fired the manager, but did not report the incident to the police. The plaintiff “urge[d]” Sears to get law enforcement involved, after which she was fired. She filed suit under Title VII, alleging that she had been terminated because of her “opposition to the way that Sears was conducting the investigation” and, also, because “she was considered a trouble-maker and whistleblower.” Citing and relying on the Manager Rule --- which the court found “persuasive” --- the Eleventh Circuit rejected her claim because:
[T]here can be no dispute that Brush acted solely as a manager here. In her capacity as an investigator of Mrs. Doe's sexual harassment claim, Brush informed Sears of Mrs. Doe's allegations, investigated those allegations, and reported the results of her investigation to Sears. Brush's job responsibilities involved exactly the type of actions that Brush took on Mrs. Doe's behalf. There is simply no evidence in the record that Brush was asserting any rights under Title VII or that she took any action adverse to the company during the investigation. Disagreement with internal procedures does not equate with “protected activity” opposing discriminatory practices.Id. at 787 (emphasis added); see also, e.g., Fletcher v. Supreme Beverage Co., 2014 WL 5518294, at *17 (N.D. Ala. Oct. 31, 2014) (applying Brush's reasoning and the Manager Rule in holding that an employee had failed to demonstrate that he engaged in a protected activity when he took actions that were part of his job responsibilities); Dunn v. Wal-Mart Stores East, 2013 WL 1455326, at *7-8 (S.D. Fla. April 9, 2013) (citing Brush and holding same).
Although Brush and its progeny arise under Title VII, and not the FWA, as previously noted, the Eleventh Circuit has stated that the Title VII analysis applies to cases under the FWA.
Applying Brush and the Manager Rule, I find that plaintiff was not engaged in a protected activity on the facts here. The record is clear that, far from going “outside” his ordinary job responsibilities, the plaintiff actually did exactly what his job required. To be sure, if there was any doubt that he was acting in the normal course and scope of his job --- as there was when the defendant first raised (and I rejected) the Manager Rule at the motion to dismiss stage --- that doubt is cleared up by looking to plaintiff's deposition testimony, where he testified in no uncertain terms:
Q. And so what I would like you to do is to describe for me what your whistle blower activity was; in other words, what you claim you did that led to your losing your job.
* * *
A. Because in brief terms I basically did my job . . . I did my job as a quality control fleet manager which was to perform oversight of the quality program and identify any nonconformances. I did that.
* * *
By documenting [the problem] I had done my job as quality control. I identified the nonconformance, I documented it for a corrective action to be done ....
So that is the whole --- by [documenting the problem] and reaching out to Mr. Prater about this issue --- I can't recall the exact number of dates, but when this issue came up and I reached out to him, within a couple days I got on a plane coming home on vacation and was terminated. I had no other reason to believe that it was not a retaliatory whistleblower event for my termination. Because I reported a noncompliance and that's my job . . . that was my job to do. I did that. And yet, by doing so, I got terminated.
Goodwin Dep. 52-55 (emphasis added). Because his own testimony makes clear that he was “doing his job” with respect to the CAR, notwithstanding a disagreement with the defendant about exactly when it should issue, he was not engaged in a statutorily protected activity. See Brush, 466 Fed.Appx. at 786-88 (holding that Manager Rule precluded retaliation claim where “there can be no dispute that [the employee] acted solely” in her capacity as a manager because she took “exactly the type of actions” that her job description required; further explaining that “[d]isagreement with internal procedures does not equate with ‘protected activity' opposing [unlawful] practices.”).
There are several additional logical problems with the plaintiff's claim. For example, as stated in supra note 5, the plaintiff claims that he “blew the whistle” by issuing the internal CAR (or, rather, having it issued), but, at the same time, he acknowledges that Prater was always going to issue it; it was solely a question of when. See Goodwin Dep. at 54. To the extent that he faults the company for not issuing it a few days before, he was the one who first thought to have it delayed because he “had the thought process and insight to say stop, Jody, don't issue a CAR that could quite possibly get DynCorp to lose the contract”. Id. In any event, the record is clear that the plaintiff was acting within the course and scope of his job duties when he prepared the CAR and arranged for it to be issued.
IV. CONCLUSION
The defendant's motion for summary judgment (doc. 60) is hereby GRANTED. The clerk is directed to enter final judgment for the defendant, together with taxable costs.
DONE and ORDERED .