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Greer v. General Dynamics Information Technology, Inc.

United States District Court, D. Maryland, Southern Division

February 21, 2019

GREGORY GREER, Plaintiff,
v.
GENERAL DYNAMICS INFORMATION TECHNOLOGY, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          PAUL W. GRIMM UNITED STATES DISTRICT JUDGE

         General Dynamics Information Technology, Inc. (“General Dynamics” or “GDIT”) is a company that “provides information technology (IT), systems engineering, professional services and simulation and training to customers in the defense, federal civilian government, health, homeland security, intelligence, state and local government and commercial sectors.” Second Am. Compl. ¶ 4.2, ECF No. 16.[1] General Dynamics employed Plaintiff Gregory Greer from September 2011 until he resigned in early 2015, id. ¶ 4.5, at which time Greer was working as a Senior Technical Editor on a General Dynamics contract at the Department of Research Programs within Walter Reed National Military Medical Center (“Walter Reed”), id. ¶ 4.7. In Greer's view, his resignation was constructive discharge because General Dynamics forced him to choose between resigning or working under the supervision of a federal employee, which he insists would have been a violation of a federal regulation, exposing him to criminal liability for conspiracy. He claims that, in the process of constructively discharging him, General Dynamics violated the Whistleblower Protection Act, 10 U.S.C. § 2409, and Executive Order 12829. Because he fails to state a claim under the federal statute or the Executive Order, despite having had the opportunity to amend to address his pleading deficiencies, I will grant General Dynamics's Motion to Dismiss, ECF No. 23, [2] and dismiss Greer's case with prejudice.

         Background

          Lisa Thompson, who is “a GS-12-level federal civilian employee, ” became Greer's supervisor in late February or early March 2015. Second Am. Compl. ¶¶ 4.9-4.10. He viewed her supervision as problematic because General Dynamics's “contract with the Department of Research programs” provides “that no one other than a GDIT employee could be Plaintiff's supervisor, ” and he raised this issue with his “Contracting Officer's Representative, Mr. Jeremy Nelson” on March 12, 2015. Id. ¶¶ 4.14-4.15. Ruben Acosta, Deputy Chief of the Department of Research Programs for the United States Navy, told Greer: “Either you work for [Thompson] or you can't work here anymore. Is that clear?” Id. ¶¶ 4.9, 4.11. In Greer's view, Acosta's statement “was a per se violation of Federal Acquisition Regulation (FAR) 7.503(d)(13). Id. ¶ 4.12.

         Greer took March 16, 2015 off “to allow GDIT time” to comply with its contract. Second Am. Compl. ¶ 4.15. The next day, his supervisor at General Dynamics, Edith Druktenis, told him to attend a meeting with her and Erin Davis of General Dynamics's Human Resources Department instead of returning to work. Id. ¶¶ 4.16-4.17. General Dynamics's Vice President Julie McGrath also was present. Id. ¶ 4.21. Davis informed him that he could either return to work at Walter Reed “and be supervised by Ms. Thompson” or “resign from this position, ” in which case General Dynamics would “place [him] in the Career Assistance Program” and “[f]ind [him] a new position in the company.” Id. ¶ 4.20.

         Greer “signed the necessary resignation paperwork from his position at Walter Reed” because he believed that to return to Walter Reed “and be supervised by Ms. Thompson . . . would have forced him to conspire and collude with GDIT in a conspiracy to violate the Federal Acquisition Regulations.” Id. ¶ 4.22. Asserting that he did not “want[] to give up his employment with GDIT, ” he explains that he signed the paperwork “based on Ms. Davis' promise to find Plaintiff a new position within GDIT” and his understanding that resignation “was a condition precedent to continued employment by GDIT.” Id. ¶¶ 4.23-4.26.

         Greer was not offered a new position with General Dynamics despite “appl[ying] to well over 100 new positions within GDIT.” Second Am. Compl. ¶ 4.29. He claims that, between May 2012 and September 2013, while he was working “on a GDIT contract at the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury, ” id. ¶ 4.6, General Dynamics “had erroneously informed Plaintiff (through email communication to his GDIT supervisor) that the security clearance GDIT had sponsored Plaintiff for was a Public Trust clearance when in fact the clearance was a Secret clearance.” Id. ¶ 4.30. He claims that, after he resigned, this misinformation hindered his acquisition of a new position because “the most valuable opportunities Defendant had for Plaintiff were those with the Secret clearance requirement, which Defendant concealed from Plaintiff.” Id. ¶ 4.27. Once he knew that he had the higher clearance, he claims, he “was immediately able to secure a Secret-level position with a very sophisticated DOD agency working on Secret-level material at a salary exactly one-third higher than his last position at GDIT.” Id. ¶ 4.37. He claims that not knowing about his clearance prevented him from earning “five years' worth of advanced-level employment” at a higher salary. Id. ¶ 4.39.

         Greer lodges two claims against General Dynamics. Second Am. Compl. ¶ 5; see also Compl., ECF No. 1; Am. Compl., ECF No. 3. First, he claims that “Defendant constructively terminated Plaintiff after Plaintiff made protected disclosures under 10 U.S.C. § 2409(c)(2), ” the Defense Contractor Whistleblower Protection Act (“WPA”), that is, he disclosed “that a federal civilian employee had been appointed Plaintiff's supervisor, in violation of FAR 7.503(d)(13). Second Am. Compl. ¶ 5.1.1. He views his resignation as constructive discharge because “further employment by GDIT would [have] require[d] the Plaintiff to conspire and collude with GDIT to violate Federal Acquisition Regulations.” Id. He alleges that the Department of Defense (“DOD”) Office of Inspector General (“OIG”) investigated his allegations and “confirmed that Plaintiff had made four legitimate protected-basis claims pursuant to 10 U.S.C. § 2409(c)(2).” Second Am. Compl. ¶ 4.24. Second, he claims that General Dynamics “intentionally and maliciously concealed from Plaintiff Plaintiff's true security clearance level for which Defendant had sponsored Plaintiff and then failed to debrief Plaintiff after Plaintiff's employment separation, in violation of Executive Order 12829 - National Industrial Security Program.” Id. ¶ 5.1.2.

         General Dynamics filed a motion to dismiss Plaintiff's Amended Complaint, after which I held a conference call, permitted Greer to file another amended complaint to address the deficiencies General Dynamics perceived in his pleadings, and found the initial motion to dismiss to be moot. ECF Nos. 8, 15, 17. Greer filed his Second Amended Complaint, and General Dynamics filed the Motion to Dismiss that now is pending, ECF No. 23.

         Standard of Review

         General Dynamics argues that Greer has not stated a claim against it. Def.'s Mem. 1. Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule's purpose “is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim for relief, ” as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” Iqbal, 556 U.S. at 678-79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663.

         Discussion

         Whistleblower Claim

         [W]histleblowing involves “the making of a protected disclosure.” 5 C.F.R. § 1209.4(b). Federal law prohibits certain agency actions in response to receiving such disclosures from whistleblowers. See 5 U.S.C. ยง 2302. Relevant here, a ...


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