UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

)
DANIEL BRADY, )
)
Plaintiff, )
)
v. )
)
LIQUIDITY SERVICES, INC., ) Civil Case No. 18-cv-1040 (RCL)
)
Defendant. )
)

 

_MEMORANDUM OPIl\IION
Before the Court is defendant Liquidity Services, Inc.’s (LSI) Motion to Dismiss. After`
` having considered the motion, the opposition and reply thereto, and the record herein, the Court
will GRANT LSI’s Motion to Dismiss.
I. BACKGROUND

Plaintiff Daniel Brady worked as Vice President of Finance for LSI from 2013 until his
termination in 2016. Compl. 1[1] 1, 85 . LSI had entered into a revenue sharing agreement with the
Defense Logistics Agency (DLA), a federal government agency, to sell excess scrap metal from
military bases. Id. 1[1] 2, 3, 17, 20-21, 72.

In 2016, Brady completed an assignment to “develop an activity-based and/or resource-
based approach to allocate IT expenses to each business unit for the FYl7 Budget,” and Brady
found that this new approach resulted in “signiflcant_ly” lower IT costs for FYl6 and FYl7, as it
related to LSI’s “proflt-sharing Scrap business.” Id. 111[ 65-66; .

Brady’s direct supervisor, LSl’s Chief Financial Offlcer Jorge Celaya, called to discuss
LSI’s “scrap metal contract,” or revenue sharing agreement, with the DLA. Id. 1 3l. In response

to Celaya’s questions, Brady said that “if LSI had less IT costs . . . LSI would need to share with

the government” as “a matter of proper accounting and federal mandates.” Ia’. 1111 75,| 77. Celaya
replied, “I’m not sure if l see it that way.” Id. 11 78. Brady replied that “doing it any other way
would be illegal.” Id. 11 6.

Brady immediately reported his'conversation with Celaya to LSI’s Chief Accounting
Officer and “expressed his concerns about the measures Celaya Would use.” Id. 1111 7-9, 79-80.
The Chief Accounting Officer told Brady not to worry about it. Ia'. 11 80.

Days later, Celaya fired Brady. Id. 1111 8, 81, 83. However, Brady had unused paid time off
and remained an LSI employee until November l, 2016. Id. 1111 84-85.

In Count I.of the Complaint, Brady alleges retaliation under § 373 O(h) of the False Claims
Act,` 31 U.S.C. §§ 372_9 et seq`. Brady argues that he engaged in protected activity`twice: (l) when `
’ he told Celaya “about p`roper accounting protocols that must be followed `on LSI’s scrap metal
contract with the Defense Logistics Agency and that any other approach would be illegal,” and (2)
when he “reported concerns about an impending violation to the Chief Accounting Offlcer.” Ia'. 1111
94-95. Brady claims that he “disclosed potential accounting fraud” and was terminated “only days
later.” Id. at 8.

In Count II, Brady alleges that LSI violated § 32-1301 of the D.C. Wage Payment and
Collection Law (DCWPCL), D.C. Code § 32-1301 et seq., by failing to pay his “earned 2016
bonus.” Ia’. 1[1] 105-06. “Per [his] offer letter,” Brady claims that the bonus amount is
approximately $62,000, based on “qualitative and quantitative measures established by LSI as part
of the Capital Assets Group.” Id. 1111 89. Brady alleges that, according to his offer letter, LSI will
pay him a forty percent target bonus annually. Ia'. 11 86. Although “the offer letter does not state

when the payment will be made or that Brady must be employed on a certain date to receive the

bonus,.” Brady claims that the bonus “generally occurs within 60 days”_ of the fiscal lyear’s end o_n
September 30. Ia'. 1111 87-88.
II. LEGAL STANDARD
A. Rule 12(b)(6)

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.”’ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.- Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must furnish “more than labels and conclusions”
or"‘a formulaic recitation of `the elements of a cause of action.’-’ Twornbly, 550 U.`S. at 555. Instead,
th`e complaint’s “[f]actual allegations must be_enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Id. (internal citations omitted). While FCA actions for fraud are evaluated under the heightened
pleading standard of Rule 9(b), retaliation claims are evaluated under the standard Rule 8 pleading
standard. Um'ted States ex rel. Williams v. Martin-Baker Aircraft C0., Ltd., 389 F.3d 1251, 1259-
60 (D.C. Cir. 2004).

B. FCA Retaliation Claims

The FCA’s whistleblower protection provision entitles an employee who, inter alia, is
discharged or discriminated against in the terms and conditions of his employment, as the result
of engaging in protected activity, “to all relief necessary to make that employee . . . whole.” 31
U.S.C. § 3730(h) (2009). To- prevail on an FCA whistleblower claim, an employee must

demonstrate that:

(l) he engaged in protected activity, that is, “acts done . . . in
furtherance of an action under this section”; and (2) he was
discriminated against “because of’ that activity. To establish the

second element, the employee must in turn make two further
showings. The employee must show that: (a) “the employer had
knowledge the employee was engaged in protected activity”; (b)
“the retaliation was motivated, at least in part, by the employee’s

engaging in [that] protected activity.”

Martin-Baker, 389 F.3d at 1260 (alteration in original) (quoting United States ex rel. Yesua'ian v.
Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998)); accord Shekoyan v. Sl`bley Int’l, 409 F.3d
414, 422 (D.C. Cir. 2005). In 2009, § 3730(h)(1) was amended and “significantly broadened”
whistleblowers’ protection by allowing retaliation claims based on: “acts done . . . in furtherance
of an action under this section or other efforts to stop ] or more violations of this subchapter.” 31
U.S.C. § 3730(h)(l) (2009) (emphasis added); see Hicks v. Dz'strict ofColumbio, 306 F. Supp. 3d
131, 155 (D.D.C. 2018).
4 III. ANlALYSIS
A. Count I does not state a claim upon which relief may be granted.

-Brady fails to demonstrate that he was engaged in protected activity and thus does not
satisfy the first prong of the test. Brady also does not meet the second prong of the test-_that Brady
was discriminated against “because of” that activity_because he fails to show that LSI had
knowledge that he was engaged in protected activity. Therefore, the Court need not evaluate
whether the retaliation was motivated, at least in part, by Brady’s engaging in protected activity.

1. Brady failed to plead sufficient facts to plausibly state that he was engaged in
protected activity.

Regarding the first element of a whistleblowerretaliation claim, “[d]etermining whether
an employee has engaged in protected conduct under the FCA is a ‘fact specific inquiry.”’
Shekoyan, 409 F.3d 414, 423 (D.C. Cir. 2005) (quoting Hutchz'ns v. Wilentz, Goldman & sz'tzer,

253 F.3d 176, 187 (3d Cir. 2001`)). “An employee does not engage in protected conduct if he

‘merely inform[s] a supervisor of the problem.”’ Shekoyan, 409 F.3d at 423 (quoting Zahodn_ick v.
IBM Corp., 135 F.3d 911, 914 (4th Cir. 1997)). “Mere dissatisfaction with one’s treatment on the
job is not . . . enough. Nor is an employee’s investigation of nothing more than his employer’s
noncompliance with federal or state regulations.” Ia'. (alteration in original) (citing Yesudian, 153
F.3d at 741). Rather, “[i]t is sufficient that a plaintiff be investigating matters that reasonably could
lead to a viable False Claims Act case.” Williams, 389 F.3d at 1260 (quoting Yesudian, 153 F.3d
at 740).

“The retaliation provision of the FCA ‘was designed to protect persons who assist the
` discovery and prosecution of fraud and thus to improve the federal government’~s prospects of
` deterring and redressing crime.”’ Uniteo’ States `ex rel. Trarz v. Computer_`Sciences Corp., 53 F.
Supp. 3d 104, 135`(D.D.C. 2014) (quoting Schweizer, 677 F.3d at 1237) (internal quotation marks
and citation omitted). With its 2009 addition, § 3730 now protects employees in their efforts to
stop a violation of the FCA and covers employees who “are collecting information about a possible
'fraud, before they have put all the pieces of the puzzle together.” Pencheng Si v. Laogai Research
Found., 71 F. Supp. 3d 73, 99 (D.D.C. 2014) (quoting Yesudian 153 F.3d at 740) (emphasis in
original). Actually proving a violation of the FCA is not an element of a retaliation claim, and §
3730 “protects an employee’s conduct even if the target of an investigation or action to be filed
was innocent.” Hoyte v. American Nat. Red Cross, 518 F.3d 61, 69 (D.C. Cir. 2008) (quoting
Graham County Soil & Water Conservation Dl'strict v. Um'ted States ex rel. Wilson, 545 U.S. 409,
416 (2005)). Although “a well-pleaded retaliation complaint need not allege that the defendant
submitted a false claim,” the complaint “must allege that the defendant retaliated against him for

engaging in . . . protected conduct.’~’ Id. (internal quotation marks omitted). Again, protected

activity is conduct that “"reasonably could lead’ to a viable False Claims Act case.” Ia'. (citing
Yesudian, 153 F.3d at 740).

Brady’s conduct could not reasonably lead to a viable False Claims Act case. Brady
reported “concerns about an impending violation” to LSI’s Chief Accounting Officer. Compl. 11
95. He states, “Had LSI used improper accounting procedures, the Defense Logistics Agency
would have received a lower profit share[.]” Pl.’s 0pp. At 10. But Brady does not allege a violation
actually took place, nor does he allege LSI took steps to commit, or conspired to commit, fraud
upon the government Brady instead acknowledges that he knew that his claimed protected activity
Was in advance of any fraudulent conduct. In other words, Brady knew there was no violation. Yet `
Brady does not cite_`and the court cannot find`_any case in which a plaintiff successfully brought `
an FCA retaliation claim for actions taken in advance of any actual fraudulent conduct knowing
that no fraud had taken place. This Court is not willing to expand the statute’s text to encompass
prevention of a hypothetical future fraud, rather than investigating a possible ongoing fraud,
against the government Therefore, the Court finds that Brady’s conduct could not reasonably lead
to a viable FCA case and dismisses Count I for failure to state a claim upon which relief may be

granted.

2. Even if the Court were to find that Brady engaged in protected activity, the Court
would find that the second prong of the test-that Brady was discriminated
against “because of” that protected activity_was not satisfied.

a. Brady failed to plead sufficient facts to plausibly state that LSI had knowledge
that Brady Was engaged in protected activity.

“Unless the employer is aware that the employee is investigating fraud, . . . the employer
could not possess the retaliatory intent necessary to establish a violation of § 3730(h).” Will_iams,
389 F.3d at 1260-61 (second alteration in original) (quoting Yesudz'an, 153 F.3d at 744). Plaintiffs

who allege that “performance of their normal job responsibilities constitutes protected activity

must ‘overcome the presumption that they are merely acting in accordance with their employment
obligations’ to put their employers on notice.” Id. at 1261 (quoting Yuhasz v. Brush Wellman, Inc. ,
341 F.3d 559, 568 (6th Cir. 2003)); see Schweizer, 677 F.3d at 1238 (finding that the retaliation
claim could not succeed unless plaintiff “alerted [her employer] Océ of her protected conduct by
acting outside her normal job responsibilities, notifying a party outside the usual chain of
command, advising Océ to hire counsel, or taking ‘any [other] action which a factfinder reasonably
could conclude Would put [Oce'] on notice that litigation [was] a reasonable pos-sibility”’).

Brady does not provide any facts showing that he engaged in activity outside his normal
job responsibilities `as. Vice President of Finance. lt was LSI’s CFO Celaya who initiated the call
with Brady to discuss the scrap metal contract with DLA. Compl. 11 7 l .` And while Brady reported
concerns arising from this conversation with Celaya to LSI’s `Chief Accounting Officer, the
Complaint is unclear as to whether the Chief Accounting Officer is outside Brady’s usual chain of
command, Although internal reporting may qualify as protected activity under § 373 0(h), the Court
finds that Brady has not overcome the presumption that he was merely acting in accordance with
his employment obligations as Vice President of Finance and thus did not put LSI on notice that
litigation was a reasonable possibility. See Williams, 389 F.3d at 1261.

B. Count II does not state a claim upon which relief may be granted.

In Count II, Brady claims that the DCWPCL mandates that LSI pay him a $62,000 bonus.
The DCWPCL, D.C. Code § 32-1301 et seq. (2010), requires employers to make timely payment
of all outstanding wages owed to employees who quit, resign, or are released by the employer.
D.C. Code § 32-1303(1)-(2). The DCWPCL broadly defines “wages” as “monetary compensation
after lawful deductions, owed by an employer for labor or services rendered, whether the amount

is determined on a time, task, piece, commission, or other basis of calculation.” Ia'. § 32-1301(3).

“‘Bonuses’ are covered under the D.C. Wage Payment Act only when they are ‘owed,’ and `
discretionary payments are not owed, but are given only by leave of the employer.” Dorsey v.
Jacobson Holman, PLLC, 756 F§ Supp. 2d 30, 36-37 (D.D'.C. 2010), aff’d, 476 F. App’x 861 (D.C.
Cir. 2012); see Molock v. Whole Foods ;Mkt., Inc., 297 F. Supp. 3d 114, 134 (D.D.C.), motion to
certij§/ appeal granted sub norn. Molock v. Whole Foods Mkt. Grp., Inc. , 317 F. Supp. 3d 1 (D.D.C.
2018) (finding that the plaintiffs sufficiently alleged bonuses to be “wages” under the DCWPCL
when the bonuses were not subject .to the employer’s discretion, but “rather automatic and
mandatory upon satisfaction of the condition that the department in which Plaintiffs Were
employed obtained na surplus?’).

Brady ha`s failed to plead sufficient facts to substantiate by reasonable inference that LSI
owed him a`bonus and thus fails to state a claim under the DCWPL. From the complaint,` Brady’s
claim appears to be premised on his offer letter. See Compl. 11 89 (“Per Brady’ offer letter, LSI
owed Brady a bonus of approximately $62,000.”) But the offer letter explicitly states it does “not
constitute an expressed or implied contract‘.” Def.’s Mot. to Dis. Exhibit 1 at 2-3 (emphasis
added).l

Even if the Court were to find that the offer letter constituted a binding agreement, the
bonus language in that letter appears discretionary and therefore not owed. The offer letter states
that a “40% target bonus” will be “paid annually based on objectives set between you and your

manager.” Def.’s Mot. to Dis. Exhibit 1 at 2. Yet, the complaint contains no allegations that Brady

 

' Brady’s offer letter may be considered on LSI’s Motion to Dismiss under Rule 12(b)(6), Without converting the
motion to on_e for summary judgment, because Brady referenced the offer letter in his Complaint and the offer letter
is integral to his DCWPCL claim. See Compl. 1[11 86-87, 89; Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004)
(finding that documents attached to a motion to dismiss and whose authenticity was not in dispute may be
considered because they are “referred to” in the complaint and “integral to” the plaintiffs claim); Tellabs, Inc. v.
Makor lssues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the complaint in its entirety, as well
as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular,
documents incorporated into the complaint by reference . . . .”).

8

met those objectives. Instead, Brady relies entirely on conclusory allegations that he is owed the
bonus. Furthermore, the offer letter states that “any provision[] contained herein may be modified
and/or revoked without notice.” Def.’s Mot. to Dis.‘ Exhibit 1 at 2. Without more facts to
demonstrate that the bonus allegedly owed to Brady is “automatic and mandatory,” see Whole
Foods, 297 F. Supp. 3d at 134, the Court must dismiss Count II for failure to state a claim upon

which relief may be granted.

IV. CONCLUSION
For the`foregoing reasons, the Court finds that Brady failed to state a claim upon which
relief may be granted. Therefore, the Court will GRANT LSI’s Motion to Dismiss.

A‘separate order shall issue `this date.

 

 

siGNED this %€§“y of'November, 2018.
gee 5 ’ A~UL//L\“‘f

Royce C. Lamberth
United States District Judge

