United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
case is rooted in events that occurred at the U.S. Army's
Aberdeen Test Center (“Aberdeen”), where
plaintiff Vickie Brown had worked for about twenty years.
Brown has filed a retaliation action against her former
employers, Jacobs Technology, Inc., d/b/a Jacobs Engineering,
Inc. (“Jacobs”) and Caelum Research Corp.
(“Caelum”), who were contractors at Aberdeen.
suit, as amended, is filed under “Section 827 and/or
section 828 of the 2013 National Defense Authorization Act
[“NDAA”], 10 U.S.C. § 2409, et
seq.” ECF 18 (the “Amended
Complaint”). Section 2409 is known as the Defense
Contractor Whistleblower Protection Act (the
“Act” or “DCWPA”). See Brach v.
Conflict Kinetics Corp., 221 F.Supp.3d 743, 744 (E.D.
alleges that defendants are contractors, as defined in 10
U.S.C. § 2409(a)(4). And, she contends that she was an
employee of a contractor or subcontractor, as defined in
§ 2409(a). Further, Brown alleges that defendants
subjected her to reprisal after she engaged in protected
activity, in violation of § 2409(a)(1).
particular, Brown worked as a multimedia technician at
Aberdeen for Jacobs and several subcontractors, including
Caelum. ECF 18, ¶¶ 7-9. She claims that she was
demoted and then “forced to resign” on December
5, 2016, in retaliation for reporting to her supervisors at
Jacobs and Caelum that two U.S. Army employees
“improperly engaged in favoritism toward certain
contractors by providing them more opportunities and
training, ” in violation of Federal Acquisition
Regulations (“FAR”). Id. ¶¶
have jointly moved to dismiss the Amended Complaint, pursuant
to Fed.R.Civ.P. 12(b)(1), for lack of subject matter
jurisdiction. ECF 19. The motion is supported by a memorandum
of law (ECF 19-1) (collectively, the “Motion”)
and several exhibits. ECF 19-2 -ECF 19-8. Defendants observe
that plaintiff failed to file “a complaint alleging
reprisal against Defendants with the Department of Defense
Office of the Inspector General (‘DoD OIG'),
” and instead filed her complaint with the Department
of the Army. ECF 19-1 at 1. Therefore, they contend that
plaintiff's claim is jurisdictionally barred, because she
“has failed to exhaust her administrative remedies,
” in accordance with the Act, 10 U.S.C. § 2409.
opposes the Motion (ECF 22, “Opposition”),
supported by three exhibits, collectively docketed at ECF
22-1. She points out that “she complained of
retaliation” to the U.S. Army Office of Inspector
General (“Army OIG”) on November 10, 2016, and
the “Army OIG substantiated Brown's claims of
retaliation” on October 19, 2017. ECF 22 at 7. In
Brown's view, her “substantiated complaint of
retaliation to the Army Inspector General served to exhaust
her administrative remedies under the NDAA.”
Id. at 8. Defendants have replied. ECF 27
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall deny
the Motion (ECF 19).
and Caelum “are contractors for the U.S. Army for
services at the U.S. Army's Aberdeen Test Center.”
ECF 18, ¶ 7. Jacobs provides “technical,
professional, and construction services, ” id.
¶ 4, and “is the prime contractor handling the
substantive portion of services including day-to-day
assignments, management, supervision, and direction to
employees.” Id. ¶ 7. In 2013, Caelum
became a subcontractor to Jacobs, id. ¶ 8,
“handling administrative personnel functions such as
pay, benefits, and leave.” Id. ¶ 7. Both
entities have employees who work at Aberdeen. Id.
¶¶ 4, 5.
about 1996, Brown began “work[ing] in association with
Jacobs but with different subcontractors” as a
“Multi-media Technician IV.” Id.
¶¶ 8, 9. Around July 2013, when “Caelum
became the subcontractor” at Aberdeen, Caelum became
Brown's employer and “paid Brown's
compensation.” Id. ¶ 8. However,
“Jacobs and Army employees directed her day-to-day
technician, Brown “mainly edited U.S. Army videos,
” for which she “held a security clearance, as
she had to sometimes work on classified materials.”
Id. ¶ 9. In addition, she served in “a
team leader position for approximately seven years.”
Id. ¶ 10. According to plaintiff, defendants
“consistently provided” her with “positive
feedback about her performance and issued her hundreds of
awards of recognition.” ECF 18, ¶ 10.
the course of Brown's employment, she “worked
closely with two U.S. Army employees, Tech Media supervisor
Rick Appel and Tech Imaging chief Mark Stern.”
Id. ¶ 11. In 2014 or 2015, Brown
“reported” to managers at Jacobs and Caelum that
Appel and Stern “improperly engaged in favoritism
toward certain contractors by providing them more
opportunities and training.” Id. ¶ 12.
Brown also reported to her managers that “Appel and
Stern were directly managing Jacobs and Caelum
contractors” and, according to the Amended Complaint,
such behavior “is improper in light of their position
as government employees and the terms of the contract with
the government.” Id. But, Brown claims that
her “managers ignored her reports.” Id.
alleges that in January or February 2016, Appel provided
“two Jacobs contractors, David Oldewurtel and Steve
Lowther, information about two upcoming job openings with the
U.S. Army . . . .” Id. ¶ 13. Appel then
“reopened the position[s] multiple times to ensure that
both Oldewurtel and Lowther were selected for the positions
because the job descriptions were written specifically for
to plaintiff, beginning around July 2016, “Appel
stopped communicating with Brown and refused to inform her
about important decisions pertaining to work duties.”
Id. ¶ 14. Further, Appel “suggested that
Brown should step down as team lead[er].” Id.
In response, Brown complained to Jacobs employee Steven Tapp
“that tensions with Appel were worsening.”
Id. However, “Tapp did not take any action
based on Brown's complaint.” Id.
about September 13, 2016, based on allegations from Appel and
Stern, Tapp “issued Brown a written warning alleging
that she did not follow instructions and delegated work to
others . . . .” ECF 18, ¶ 15. Notably,
“[t]his was the first write-up Brown received in her
almost twenty years working at the Aberdeen Test
responded to the written warning on or about September 20,
2016, “stating that in years prior she repeatedly
expressed her concern to her managers that Appel and Stern
were interfering with Jacobs and Caelum employee[s] and that
they showed favoritism toward certain contractors by
providing them special training and information.”
Id. ¶ 16. In addition, Brown “reported
that Appel and Stern's acts were in violation of the
[FAR] policy and Jacobs's contract with the
government.” Id. And, “Brown also
reported that she complained on several occasions with no
success or resolution.” Id. According to
plaintiff, because of her complaints, “her good working
relationship with Appel diminished.” Id.
about September 26, 2016, defendants “placed Brown on a
performance improvement plan (‘PIP').”
Id. ¶ 17. On November 2, 2016, Brown emailed Ed
Pagano, Vice President of Jacobs, and told him that
“‘the PIP process is humiliating and
degrading,' and that she ‘was made to look like a
disobedient child and was found guilty without a trial. [She]
felt like [she] was being bullied . . . .'”
Id. ¶ 18. Although Brown “successfully
completed the PIP” in November 2016, defendants
“notified Brown that she would be reassigned to another
manager doing essentially administrative work.”
Id. ¶ 19. According to the Amended Complaint,
such a “demotion of assignments could have resulted in
a significant change in pay.” Id.
on November 10, 2016, “Brown filed a complaint”
with the Army OIG, “alleging that Appel and Stern were
violating the FAR despite her complaints to Jacobs and Caelum
management.” Id. ¶ 20. Brown also
“complained about retaliation she experienced”
from another co-worker, Heather Passwater. Id. In
the OIG complaint, Brown characterized her place of
employment “as a ‘hostile office environment'
. . . .” Id.
email of November 28, 2016, Brown complained about
retaliation to an investigator at Jacobs, stating that
“she felt ‘targeted and put through [the PIP]
process unnecessarily.'” ECF 18, ¶ 21. Brown
also said “that she believed Jacobs put her in a
position . . . where she would not succeed” to justify
the company's decision “when it ultimately
terminated her.” Id. In addition, she
“complained of unfair treatment by Ross Burns and Tapp
. . . .” Id. Brown asserts that on December 5,
2016, “faced with the impending demotion, [she] was
forced to resign.” Id. ¶ 22.
February 1, 2017, Brown asked Inspector General Kenneth Avery
about the status of the Army OIG investigation. Id.
¶ 23. Avery responded on March 13, 2017, indicating that
“the OIG had finished [its] initial inquiry and would
be requesting that Aberdeen Test Center ...