     Case: 12-30620       Document: 00512184777         Page: 1     Date Filed: 03/22/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 22, 2013
                                       No. 12-30620
                                                                           Lyle W. Cayce
                                                                                Clerk
SHELLEY THOMAS,

                                                  Plaintiff - Appellant

v.

ITT EDUCATIONAL SERVICES, INCORPORATED,

                                                  Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CV-544


Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       After being fired from her position as an instructor at ITT Educational
Services, Inc. (ITT), Thomas sued ITT alleging a retaliation claim arising under
the False Claims Act (FCA), 31 U.S.C. § 3730(h), and state law retaliation claims
under La. Rev. Stat. § 23:967(A). The district court granted summary judgment
for ITT. We agree with the district court, which stated that Thomas did not
meet her burden to show that she engaged in protected activity under § 3730(h)
because “[a]lthough Thomas argues that her refusal to falsify grade records was

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                       No. 12-30620

protected activity because she refused to do so to prevent ITT from making false
claims to the government, Thomas has not provided any evidence, other than her
own unsupported, conclusory allegations to support this contention.”
Additionally, Thomas did not raise a triable issue of fact as to the state law
claims because she “put forth no evidence to show that she ever informed ITT
that she believed its actions violated the law.” Thomas appeals the adverse
summary judgment. We AFFIRM.
                                     BACKGROUND
       ITT hired Shelley Thomas as a part-time instructor in 2001.1 She was
promoted to full-time instructor later that year and worked at ITT for
approximately nine years before she was fired in 2010.
       During the summer 2010 academic quarter that was to be her last, many
of Thomas’s students failed to attend class, complete assignments, or pass tests.
Students asked Thomas to accept late work or give credit without turning in
assignments and those conversations became heated. On one occasion, Renee
Hall, Associate Dean of General Studies and Thomas’s immediate supervisor,
overheard shouting between Thomas and two students. Students complained
to Hall that Thomas was speaking to them in a disrespectful manner and would
not allow them to turn in make-up work or late assignments. According to
Thomas, Hall and Kenya Crocken-Waugh, then Dean of the St. Rose campus,
wanted Thomas to accept late assignments and “just pass” a student and she
told them that she would not do it and that “[i]t wasn’t ethical.” Thomas was
reprimanded for speaking to students in a disrespectful tone. She was later
reprimanded two more times. At a meeting in conjunction with one of the
reprimands, Hall told Thomas to accept late work in accordance with ITT policy.
The third and final meeting with Hall on September 2, 2010 was accompanied

       1
         As we affirm the district court’s decision solely on the basis that Thomas did not
engage in protected activity under the FCA and did not advise ITT of a violation of the law as
required under state law, we largely limit our recitation of the facts to Thomas’s actions prior
to being terminated.

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                                       No. 12-30620

by a final written warning.2 Thomas met with St. Rose Campus Director
William Wells the next day. Thomas brought paperwork to show that she had
accepted late assignments,3 but Wells refused to look at it.
      Thomas did not return to campus after meeting with Wells. She completed
and signed a vacation request form but forgot to give it to Wells before leaving.
While gone, she missed two mandatory meetings4 and was absent for three
consecutive work days. Hall tried but was unable to reach Thomas by phone or
email. Thomas had gone out of town with her sister. After she returned and
checked her voice mail, she emailed Hall on September 9, stating that she had
missed the mandatory meetings because she “was extremely ill.” Later that day,
Crocken-Waugh called Thomas at home and, in a voice mail, stated that ITT
considered her to have “voluntarily resigned” from her employment due to her
unscheduled absences. Thomas received a letter from Wells by mail a few days
later formally confirming her termination, effective September 8.5
      Thomas complained to both the Accrediting Council for Independent
Colleges and Schools, the accrediting agency for ITT, and the ITT compliance
department after she was terminated. After Thomas was terminated, Hall
reviewed late assignments for seven of Thomas’s students and changed the final
grades for four of those students.
                              STANDARD OF REVIEW
      We review “the district court’s grant of summary judgment de novo,
applying the same standards as the district court. Summary judgment is


      2
        At that meeting, Thomas disputed the claim in her written warning that she had
refused to accept make up work. Hall replied that the warning had been written before
Thomas had accepted the work.
      3
          Thomas had reviewed all of the late assignments and assigned final grades.
      4
          Per Thomas, instructors were allowed to make up missed meetings online.
      5
        Someone from ITT went to Thomas’s desk and found the vacation request form after
ITT finally got in touch with Thomas.

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warranted if ‘the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.’” DePree v. Saunders,
588 F.3d 282, 286 (5th Cir. 2009). We must go beyond the pleadings and review
the entire record presented to the district court to determine if the moving party
was entitled to summary judgment. Copeland v. Wasserstein, Perella, and Co.,
Inc., 278 F.3d 472, 477 (5th Cir. 2002).
                                 DISCUSSION
I.    False Claims Act Whistleblower Provision
      The district court granted summary judgment in favor of ITT for Thomas’s
retaliation claim under FCA § 3730(h), finding that Thomas did not submit
evidence establishing any of the three required elements of a prima facie case.
To establish a claim under § 3730(h), a party must show (1) that she was
engaged in protected activity with respect to the False Claims Act; (2) that her
employer knew she was engaged in protected activity; and (3) that she was
discharged because she was engaged in protected activity. Robertson v. Bell
Helicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994). A protected activity
is one motivated by a concern regarding fraud against the government. See
Riddle v. Dynocorp Int’l, Inc., 666 F.3d 940, 941 (5th Cir. 2012). Congress
amended the FCA in 2009 “to provide relief to any employee discharged for
acting ‘in furtherance of other efforts to stop [one] or more violations of this
subchapter.’” United States ex rel. Patton v. Shaw Servs., LLC, 418 Fed. App’x
366, 371 n.5 (5th Cir. 2011) (unpublished) (quoting Pub. L. No. 111-21, § 4(d),
123 Stat. 1617, 1624–25 (2009)). This court has not yet issued a published
opinion interpreting the new language.
      Even under a very solicitous reading of the new statutory language
Thomas failed to establish she engaged in protected activity. We only look to




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actions Thomas took before she was terminated.6 Hall stated in her declaration
that “Thomas never complained to me that anyone at ITT had asked her to do
something illegal or unlawful.” Thomas was directly asked at her deposition
whether, before she received the voice mail from Crocken-Waugh informing her
she had been terminated, she told Crocken-Waugh that she thought ITT was
doing something illegal. Thomas replied that she “told both her and Renee” that
what they asked of her “wasn’t ethical.” Thomas does not argue that it is illegal
or even unethical to accept late work. In her deposition testimony, she even
stated that “I will always accept late work,” before adding the qualification “[t]o
a certain point”, and that she would not “give them full credit for late work.”
According to Thomas’s own deposition testimony, when she insisted to Hall that
she would only take some of one particular student’s assignments (those due
later in the quarter) and that those would be penalized, Hall responded “Well,
okay.” Thomas further stated that she was aware of only four of her students
whose final grades had been changed.
       Thomas had no knowledge which of her students were receiving federal
funds to attend ITT, whether any of them were receiving state funds, what effect
a failing grade would have on a student’s federal loans, or how many failing
grades a student had to receive to lose federal loans. Thomas indicated in her
deposition testimony that she had no knowledge of the accreditation process.7
       Thomas did not submit evidence establishing that she sought to pursue a
qui tam action, that she informed anyone at ITT that its actions were illegal, or
that she informed anyone at ITT that its actions were fraudulent.                         She


       6
          While a court may not weigh the evidence or make credibility determinations when
reviewing the record presented to it, Perenco Nigeria, Ltd. v. Ashland, Inc., 242 F.3d 299, 304
(5th Cir. 2001), conclusory allegations, speculation, and unsubstantiated assertions are not
competent summary judgment evidence and will not satisfy the plaintiff’s burden. RSR Corp.
v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
       7
        Thomas’s call to the ACICS cannot have been protected activity under the FCA
because it occurred after ITT terminated her.

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submitted evidence that she was only aware of four grades that were changed,
and those grades were changed after ITT terminated her. Thomas did not
submit evidence that ITT forced her to change grades. Rather, she states that
ITT pressured her to accept late assignments and give credit for those
assignments, something she admitted she would typically do. The point of
disagreement was not over class averages or final grades or even accepting late
work; it was over the credit given to tardily submitted assignments. Such
internal policy matters are well beyond the reach of the FCA.8
        Because Thomas failed to establish that she engaged in protected activity,
we need not and do not reach the remaining two elements of a prima facie case
under § 3730(h). The district court correctly granted summary judgment to ITT
on Thomas’s FCA claim.
II.     Retaliation Claim Under Louisiana State Law
        To establish Thomas’s claims under La. Rev. Stat. §§ 23:967(A)(2) and
(A)(3), she had to show that an employer took “reprisal against an employee who
in good faith, and after advising the employer of the violation of law . . .
[p]rovide[d] information or testifie[d] before any public body conducting an
investigation, hearing, or inquiry into any violation of law” or “[o]bject[ed] to or
refuse[d] to participate in an employment act or practice that is in violation of
law.”
        Thomas did not submit any evidence that she advised ITT of a violation
of the law. Thomas only told Hall and Crocken-Waugh that what they asked of
her was “unethical.” Thomas argues that “all parties knew that changing grades
and reports was fraudulent conduct under State and Federal Law,” but Thomas
did not submit evidence that Hall and Crocken-Waugh asked her to change
grades. She submitted evidence only that Hall and Crocken-Waugh pressured


        8
        It should be noted that only Thomas’s actions are relevant. Even assuming arguendo
that ITT had a wide scale practice of pressuring instructors to inflate grades and of changing
grades, to establish a claim Thomas must show that she engaged in protected activity.

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her to accept and give credit for late assignments. She did not create a genuine
issue of material fact concerning a Louisiana law violation.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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