Brown v. Jacobs Technology, Inc.

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER, UNITED STATES DISTRICT JUDGE

         This 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.

         This 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. Va. 2016).^[1]

         Plaintiff 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).

         In 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. ¶¶ 12, 22.

         Defendants 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. Id.

         Brown 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 (“Reply”).

         No. hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion (ECF 19).

         I. Factual Background^[2]

         Jacobs 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.

         In or 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 work.” Id.

         As a 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.

         During 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.

         Brown 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 them.” Id.

         According 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.

         On or 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 Center.” Id.

         Brown 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.

         On or 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.

         Thereafter, 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.

         In an 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.

         On 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 ...