UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) MOHAMMED AMIN KAKEH, ) ) Plaintiff, ) ) v. ) Civil Action No. 05-1271 (GK) ) UNITED PLANNING ) ORGANIZATION, INC., ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Plaintiff Mohammed Amin Kakeh (“Plaintiff”) brings this

whistleblowing case against his former employer, the United

Planning Organization, Inc. (“UPO”). Plaintiff alleges violations

of the District of Columbia Whistleblower Protection Act (“WPA”),

et seq. (Count I); wrongful discharge under

District of Columbia common law (Count II); retaliation in

violation of the District of Columbia Human Rights Act (“DCHRA”),

(Count III); retaliation in violation of the

federal False Claims Act (“FCA”),

(h) (Count IV);

and retaliation in violation of the District of Columbia False

Claims Act (“DCFCA”),

(Count V).

On February 28, 2008, Defendant’s Motion for Summary Judgment

was granted as to Count II. On November 25, 2008, Plaintiff’s

Consent Motion to Dismiss Count III was granted. A jury trial was

held between December 3, 2008 and December 23, 2008. On December 23, 2008, the jury returned a verdict for Plaintiff, and the Court

entered judgment in the amount of $891,546 plus costs [Dkt. Entry

Dec. 23, 2008].

This matter is now before the Court on three post-trial

motions: (1) Plaintiff’s Motion to Alter Judgment [Dkt. No. 176],

(2) Defendant’s Motion for Judgment as a Matter of Law [Dkt. No.

178], and (3) Defendant’s Motion to Amend, Alter the Judgment, or

for New Trial, or, in the Alternative, Motion for a Remittitur

[Dkt. No. 180]. Upon consideration of the Motions, Oppositions,

Replies, and the entire record herein, and for the reasons set

forth below, Defendant’s Motion for Judgment as a Matter of Law is

denied, Defendant’s Motion to Amend, Alter the Judgment, or for New

Trial, or, in the Alternative, Motion for a Remittitur is granted

in part and denied in part, and Plaintiff’s Motion to Alter

Judgment is granted in part and denied in part.

I. Background1

UPO is a private non-profit corporation in the District of

Columbia. According to its mission statement, the organization’s

objective is “[t]o provide leadership, support, and advocacy to low

income and other eligible residents of Washington, D.C., to assist

1 For purposes of ruling on a motion for judgment as a matter of law, the evidence is examined in the light most favorable to the nonmoving party. Mazloum v. Dist. of Columbia Metro. Police Dep’t,

(D.D.C. 2008). Accordingly, unless otherwise noted, the facts that follow are taken from Plaintiff’s Opposition and from the evidence presented at the fourteen-day trial held in December 2008.

2 them in achieving self-sufficiency and self-determination, and to

enhance generally the quality of life in the local community.”

Plaintiff was hired as UPO’s Controller on June 28, 1998.

UPO contracted with the District of Columbia to manage two

anti-poverty programs. It operated the Head Start program, which

provides educational services to low-income children and their

families. In the District of Columbia, the federal government

provided 80 percent of the program’s operating funds, and the

District provided the remaining 20 percent. The federal government

disbursed its 80 percent share of the program costs to the D.C.

Department of Human Services (“DHS”), which added the remaining 20

percent and then disbursed the full funding to UPO.

UPO also administered the Community Service Block Grant

(“CSBG”) program. The CSBG program was funded entirely by the

federal government. The federal Department of Health and Human

Services (“DHHS”) disbursed the program funds to DHS, and DHS in

turn disbursed the funds to UPO. UPO then allocated funds to

service providers and oversaw their use of the funds.

Between October 1, 2002 and September 30, 2003, DHS disbursed

funds from the CSBG grant to UPO on a reimbursement basis: DHS

disbursed the funds after UPO provided DHS with receipts showing

that expenditures were incurred for purposes that were legitimate

under the CSBG grant. If UPO did not spend all of the grant-

allocated money within the fiscal year, it was required to notify

3 DHS that it had a surplus. Once it had notified DHS, it could

either return these surplus funds to the granting agency or use

them for other allowable expenditures.

The CSBG grant for fiscal year 2003 budgeted specific amounts

that could be spent on other programs. During trial, Dana Jones,

UPO’s present Executive Director, who was hired to begin work on

April 1, 2004, testified that, unless there was express written

permission from DHS, surplus funds could be applied to other

programs only up to the expenditure limit that was budgeted in the

grant. See Def.’s Mot. at 4 (“If included in the original budget,

CSBG funds can be used to pay for costs related to other grant

programs.”).

Tunde Eboda, CSBG Program Manager at DHS, also testified that

Defendant needed written permission to “apply surplus CSBG funds to

non-enumerated cost overruns” in other programs. See id. at 4

(“Only allowable costs can be charged to the grant.”). Gladys

Mack, UPO’s Deputy Executive Director, and Sheila Shears, UPO’s

Chief Financial Officer, testified that the Iowa Group, a firm

hired by Eboda to investigate UPO’s financial practices, informed

them in March 2004 about this permission requirement. Pl.’s Opp’n

at 11.

4 Eboda testified that UPO did not have this permission until

September 29, 2004. Mack testified that Defendant had oral

permission, but not written permission.2

Plaintiff testified that in October 2003, he discovered

$748,000 in expenditures that had been improperly billed to the

CSBG grant for fiscal year 2003. He believed that this billing

practice constituted fraud. On October 20, 2003, Plaintiff wrote

a memorandum to Mack, Shears, and Ben Jennings, who was then UPO

Executive Director, informing them of this discovery. On the same

day, he met with them to detail his concerns.

Plaintiff testified that Jennings ordered him to change the

designation of expenditures from “expenditures without a funding

source” to “allowable CSBG expenditures.” Id. at 5. Plaintiff

testified that he believed this to be an illegal order because the

change would constitute “fraudulent billing.” Id.

Plaintiff then discovered several other expenditures that were

mistakenly classified: Jennings had charged four luxury cars to

grants using a credit card with a 21 percent interest rate, a

$120,000 loan had been made to a member of UPO’s Board of Trustees

(“Board”) using grant funds, a van was assigned to Mack, two sport

utility vehicles were purchased for a Board member and charged to

grants, officers and Board members had fifty-six cell phones,

2 According to Plaintiff, Eboda and Plaintiff both contradicted Mack’s testimony.

5 employees and Board members had been paid $200,000 in advances for

traveling expenses, and a $65,000 trip to Hawaii for employees,

Board members, and their families had been billed to a grant. Id.

at 5, 6.

After discovering these expenditures, Plaintiff changed their

designation from “allowable” to “unallowable.” Plaintiff testified

that Shears instructed him to charge the CSBG grant for these

expenditures and that he considered this instruction to be an

illegal order. Id. at 6.

After receiving this instruction, Plaintiff responded by

contacting Eboda and informing him that Defendant had charged

unallowable expenditures to the CSBG grant. Eboda testified that

as a result of Plaintiff’s disclosures, he investigated Defendant’s

finances and discovered several unallowable expenditures that had

been improperly charged to the CSBG grant.

Plaintiff testified that on March 1, 2004, Eboda told a

meeting that included Shears that Plaintiff had assisted him with

the investigation. Later that month, at another meeting attended

by Shears, Plaintiff provided the Iowa Group with financial

statements showing that UPO had attempted to bill unallowable

expenditures to the grant. Plaintiff’s version of the financial

statements contradicted the version submitted by Shears:

Plaintiff’s version included a much larger deficit. Eboda

6 testified that it was clear that the statements with the larger

deficit were Plaintiff’s. Pl.’s Opp’n at 7.

On an unspecified date, Shears held a meeting that included

Plaintiff, Mack, and Jennings. At this meeting, Jennings asked

Plaintiff why he had provided the financial statements to the Iowa

Group. Id. at 8.

On March 11, 2004, Eboda recommended to UPO’s Board that

Jennings, Shears, and Mack be removed. Eboda testified that he

reached this decision as a result of the information that Plaintiff

had provided to him. The Board decided to remove only Jennings.

Id.

On the same date, Shears wrote a letter of resignation to

Jennings, stating her concern that Plaintiff “has been allowed to

continue in his position, given his repeated acts of

insubordination.” Def.’s Mot., Ex. 4 (labeled “Pl. Ex. 30”). The

letter referred to Plaintiff’s release of financial statements that

were “significantly altered from any previously reviewed by

management.” Id. Shears sent a copy of this letter to Mack.

On March 12, 2004, Mack became Acting Executive Director. She

told Plaintiff to change financial statements so that “unallowable”

expenditures could be charged to the grant. On March 21, 2004,

Shears wrote an email to Plaintiff and Mack stating that

expenditures charged to the grant are “lower than budgeted, even

though there appears to be more than enough related expenses.”

7 Id., Ex. 5 (labeled “Pl. Ex. 80”). Her email specifically asked

Plaintiff to provide details about “what deferred revenues are on

the balance sheet that should be reversed.” Id.

On March 25, 2004, Mack wrote an email to Plaintiff, reminding

him of the urgency of the need to change the classification of

expenditures. Referring to a line of credit that had been extended

to Defendant by M & T bank, she wrote, “Amin, we are out of time.

I hope you are sensitive to this. Our continued supportive

relationship with the bank depends on these tasks being completed.”

Id., Ex. 6 (labeled “Pl. Ex. 35”). She stated that she was

“requesting that [Plaintiff] book all adjustments that we are

currently aware of, including restoring the CSBG revenues . . . .”

Id.

Plaintiff testified that he believed Mack’s request was an

illegal order and that he refused to comply with it. Mack

testified that she believed his refusal to be an act of

insubordination and that she informed Jones of this belief.

On April 1, 2004, Defendant appointed Jones to be Executive

Director. Jones testified that when he arrived at UPO, “the house

was on fire,” meaning that UPO was in great disarray. Id. at 9.

Defendant states that Jones “considered outsourcing the financial

management functions as an option before he even began his work at

UPO.” Id.

8 Eboda testified that he told Jones that Plaintiff had assisted

in the investigation that led to Jennings’ resignation. On April

5, 2004, Plaintiff met with Eboda, Jones, and Alexis Roberson, a

member of the Board’s Ad Hoc Management Committee. Pl.’s Opp’n at

11-12. At this meeting, Eboda reiterated that Plaintiff had

assisted in the investigation and had provided information that

helped to instigate the DHS and DHHS audit of UPO’s financial

practices. Id. at 12.

On April 6, 2004, Plaintiff met with Jones, Mack, Shears,

Monica Beckham, UPO’s General Counsel, and employees of F.S.

Taylor, a private certified public accounting firm. At this

meeting, the F.S. Taylor employees proposed certain modifications

to Defendant’s financial statements. Mack and Shears agreed to

these modifications, but Plaintiff did not. Plaintiff testified

that in April 2004, Jones ordered him to charge what he considered

to be unallowable expenditures to the grant.

On April 11, 2004, Plaintiff wrote a memorandum to Jones

stating that he had “emphasized” at the April 6, 2004 meeting that

“the 1.9 million from the CSBG unspent revenue could not be used to

cover the deficit of UPO.” Def.’s Mot., Ex. 10 (labeled “Pl. Ex.

41”). Plaintiff believed that UPO needed written approval prior to

allocating the surplus funds to the deficit, and he did not believe

that UPO had received such permission. Plaintiff wrote that

The second “valid” adjustment of applying money to the UPO deficit is invalid because this needs an advance

9 approval from the CSBG state office to apply the revenue to UPO’s deficit and that hasn’t happened yet. As you can see the total “valid” adjustment of $3 million has to be reversed. UPO is in a deficit situation.

Id.

In the April 11, 2004 memorandum, Plaintiff also stated that

the director of Head Start had asked him to remove three items that

UPO had charged to the grant in fiscal year 2003, but that F.S.

Taylor had recommended that UPO not remove those charges “until the

auditors ask for such changes.” Id. Jones responded to F.S.

Taylor’s recommendation by stating, “I’m not going to tell them

either.” Id. Plaintiff testified that he considered this response

to be unethical because it “put[] UPO’s integrity at serious risk.”

Id.

Jones decided to outsource the top management of the Finance

Office. On April 15, 2004, in preparation for the reduction-in-

force (“RIF”) necessitated by the outsourcing, UPO’s Human

Resources Department sent UPO’s General Counsel a list of

“competitive areas.”3 Id. at 10. UPO used these “competitive

areas” to determine which employees to retain after the RIF. Id.

According to Defendant, “[e]mployees with the longest length of

service with UPO were placed at the top of their particular

grouping.” Id. at 10 n.4.

3 According to Defendant, employees were grouped into “‘competitive areas’ according to their duties, functions, responsibilities and pay schedules.” Def.’s Mot. at 10.

10 Plaintiff was included in the same “competitive area” as David

Quashie, UPO’s Deputy Controller, who had worked for UPO since

September 23, 1974. Id. at 10. According to Defendant, Quashie

was placed at the top of the competitive area because he had worked

at UPO nearly twenty-four years longer than Plaintiff. Id. at 10-

11.

On May 6, 2004, Jones recommended to the Board that UPO

outsource several positions in the Finance Office, including the

Controller position. Id. at 11. Two members of the Board, Judges

Annice Wagner and Henry Greene, testified that the Board never

discussed the specific employees who would be affected by the RIF.

Id.

On May 12, 2004, Roberson wrote a letter to Eboda “requesting

that he facilitate a coordinated investigation by all governmental

agencies from which UPO received funding.” Id. at 12. On June 1,

2004, investigators from the Office of Inspector General (“OIG”),

as well as employees from DHS, DHHS, the FBI, and the U.S.

Attorneys’ Office, visited Defendant’s office to meet with

Plaintiff. Id. at 13.

Beckham testified that she observed the investigators enter

Plaintiff’s office, that she knew they were OIG investigators, that

she assumed they were reviewing financial documents in Plaintiff’s

office, and that she notified Jones that Plaintiff was meeting with

the investigators. According to Defendant, it was Beckham’s

11 “understanding that the investigators came to UPO because of The

Washington Post articles about Mr. Jennings.” Id. at 13.

The next day, on June 2, 2004, Jones delivered a RIF notice to

Plaintiff. Id. at 13. The notice stated that Plaintiff was

“relieved of [his] duties as of June 2, 2004,” but that his

employment would officially terminate on June 30, 2004. Id.

After a fourteen-day trial in December 2008, the jury returned

a verdict for Plaintiff.

II. Analysis

A. Defendant’s Motion for Judgment as a Matter of Law Is Denied4

After the conclusion of a jury trial, a court will not grant

a motion for judgment as a matter of law and set aside the verdict

“unless the evidence and all reasonable inferences that can be

drawn therefrom are so one-sided that reasonable men and women

could not have reached a verdict in plaintiff’s favor.” Novak v.

Capital Mgmt. & Dev. Corp.,

(D.C. Cir. 2009)

(internal citations and quotation marks omitted); Gasser v. Dist.

of Columbia,

(D.C. Cir. 2006); see Stewart v. St.

Elizabeths Hosp.,

(D.D.C. 2009); see

4 Plaintiff argues that Defendant waived its right to file a motion for judgment as a matter of law. Pl.’s Opp’n at 14-16. However, as Defendant conclusively demonstrates in its Supplemental Memorandum, the Court explicitly informed Defendant during trial that it had not “jeopardize[d] [its] procedural positions in any way at all.” Def.’s Supp. Mem. at 2-3 & Ex. 1. Thus Defendant did not waive its right to seek judgment as a matter of law.

12 Mazloum v. Dist. of Columbia Metro. Police Dep’t,

(D.D.C. 2008) (internal citations and quotation marks

omitted); see also Miller v. Holzmann,

(D.D.C. 2008) (citing Scott v. Dist. of Columbia,

(D.C. Cir. 1999)); see Fed. R. Civ. P. 50 (a court may grant a

motion for judgment as a matter of law if “the court finds that a

reasonable jury would not have a legally sufficient evidentiary

basis to find for the party on that issue”).

Because “‘[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts

are jury functions, not those of a judge,’” a court may grant a

motion for judgment as a matter of law only if “‘under the

governing law, there can be but one [] conclusion as to the

verdict’ -- that it defies reason.” Miller,

-

76 (quoting Anderson v. Liberty Lobby, Inc.,

(1986)).

In considering a motion for judgment as a matter of law, a

court “must draw all reasonable inferences in favor of the

nonmoving party, and it may not make credibility determinations or

weigh the evidence.” Mazloum,

(quoting

Reeves v. Sanderson Plumbing Prods., Inc.,

(2000)); see also Gasser,

. Thus it is necessary to

“disregard all evidence favorable to [UPO] that the jury is not

13 required to believe and give credence to the evidence favoring

[Plaintiff].” See Gasser,

.

In this case, Plaintiff alleged that Defendant violated the

D.C. Whistleblower Protection Act (“WPA”), the federal False Claims

Act (“FCA”), and the D.C. False Claims Act (“DCFCA”). To prove

that Defendant violated the WPA, Plaintiff had to establish by a

preponderance of the evidence that (1) he made a protected

disclosure and/or refused to comply with an illegal order; (2)

Defendant took an adverse employment action against him; and (3)

Plaintiff’s disclosure and/or refusal to comply with an illegal

order was a “contributing factor” to Defendant’s decision to take

the adverse employment action. As the D.C. Court of Appeals has

stated, “the federal whistleblower statute, 5 U.S.C. 2302(b)(8),

‘is instructive in interpreting similar state statutes,’ including

the DC-WPA.” Wilburn v. Dist. of Columbia,

(D.C.

2008) (quoting Crawford v. Dist. of Columbia,

(D.C. 2006)).

To prove that Defendant violated the FCA and the DCFCA,

Plaintiff had to establish by a preponderance of the evidence that

(1) he engaged in a protected activity, (2) Defendant had knowledge

that Plaintiff was engaged in such protected activity, (3)

Defendant terminated his employment, and (4) there was a causal

connection between the protected activity and Defendant’s

14 termination of his employment.5 Once Plaintiff established these

elements, a presumption of retaliation arose and the burden shifted

to Defendant to provide a legitimate, non-retaliatory reason for

Plaintiff’s termination. If Defendant presented a legitimate,

non-retaliatory reason, the burden shifted back to Plaintiff to

prove by a preponderance of the evidence that Defendant’s stated

reason was a pretext for retaliation. See, e.g., U.S. ex rel.

Yesudian v. Howard University,

(D.C. Cir. 1998).

Defendant argues that if the Court does not set aside the

jury’s verdict, there will be an “improper broadening of the scope

of the whistleblower laws to encompass activities and conduct

beyond the clear language of the statutes.” Def.’s Mot. at 2.

According to Defendant, “no reasonable juror could have found that

UPO separated Plaintiff . . . from employment on June 30, 2004

because he engaged in protected activity under the whistleblower

laws.”

Defendant makes several assertions in support of this

argument. First, it argues that Plaintiff did not make a protected

disclosure, as the term is defined by the WPA, because any

disclosures he made were pursuant to his “regular job duties” and

“Plaintiff did no more than make suggestions and voice his

5 The elements of the FCA and the DCFCA are substantively similar, but not identical. For purposes of the Motions now before the Court, the distinctions between the two are not relevant. In addition, as stated supra, the federal statute provides a helpful guide for interpreting the D.C. statute.

15 dissatisfaction with Mr. Jones’s decisions.” Id. at 17-18.

Both the facts and the law prove Defendant’s argument wrong.

According to the WPA, a disclosure is “protected” by the statute if

it is

any disclosure of information . . . by an employee to a supervisor or to a public body that the employee reasonably believes evidences . . . [g]ross misuse or waste or public resources or funds . . . [or a] violation of a federal, state, or local law, rule, or regulation, or of a term of a contract between the District government and a District government contractor which is not of a merely technical or minimal nature.

D.C. Code 2-223.01(7) (emphasis added). According to the

clear language of the statute, a disclosure is “protected” when

made to a supervisor. See id. As Plaintiff correctly states, the

“Findings and declaration of purpose” section of the WPA states

that “the Council declares as its policy to . . . [p]rotect

employees from reprisal or retaliation for the performance of their

duties.” D.C. Code 1-615.51. Moreover, Plaintiff’s testimony

constituted far more than “mere suggestions” and clearly stated

that he believed the actions he was challenging were unlawful.

As Jones and Eboda both testified, it was reasonable for

Plaintiff to believe that written permission was required before

UPO could apply surplus CSBG funds to “non-enumerated cost

overruns” in other programs. Pl.’s Opp’n at 4. Eboda testified

that it was reasonable to believe that UPO did not have this

permission. Id.

16 Second, Defendant argues that “Plaintiff did not have a

reasonable belief that he was objecting to a violation of a

federal, state, or local law, rule, or regulation” because “[t]here

is no evidence that Plaintiff identified a specific act on the part

of UPO which was illegal during his employment.” Def.’s Mot. at

22. Defendant argues that the “record demonstrates that no one at

UPO issued an illegal order to Plaintiff.” Id. at 23.

The actual legality of UPO’s billing practices is not the

issue. Instead, as the statute makes clear, the focus of the

inquiry is whether Plaintiff held a reasonable belief that the

practices were illegal, i.e. a “violation of a federal, state, or

local law, rule, or regulation, or of a term of a contract between

the District government and a District government contractor which

is not of a merely technical or minimal nature.” D.C. Code 2-

223.01(7).6

6 Plaintiff and Defendant argue extensively about the regulations that governed Defendant’s participation in the CSBG program. Plaintiff argues that 45 C.F.R. Part 92 governed because Defendant received a “federal grant given directly to the states.” Pl.’s Opp’n at 29 (emphasis in original). Defendant argues that it was governed by 45 C.F.R. Part 74, which applies to federal grants to nonprofit organizations. Def.’s Mot. at 24. The Court need not resolve the merits of this legal issue because the applicable statutes require only a reasonable belief in illegality, not actual illegality. See, e.g., D.C. Code 2-223.01(7) (“Protected disclosure” means any disclosure of information, not specifically prohibited by statute, by an employee to a supervisor or to a public body that the employee reasonably believes . . . .”) (emphasis added).

17 During the trial, Plaintiff testified that he stated numerous

times that he believed Defendant was directing him to violate the

billing and accountability practices required by the CSBG program.

Jones and Eboda testified that written permission was required

prior to billing cost overruns to the CSBG grant. Plaintiff

testified he did not believe UPO had this permission. Mack

testified that UPO had oral permission but did not have written

permission. The testimony from Jones, Eboda, and Mack corroborates

Plaintiff’s belief and clearly shows its reasonableness.

Plaintiff’s April 11, 2004 memorandum also corroborates his

testimony. Accordingly, a reasonable juror could conclude that

written permission was required, that UPO did not have it, and that

in spite of lacking this permission, Plaintiff was ordered to

charge unallowable expenditures to the grant.

Third, Defendant argues that disclosure to a supervisor is not

protected activity and that Plaintiff’s disclosures would have been

protected only if they had been revealed to the Board. Def.’s Mot.

at 18 (“To become a [sic] protected conduct, Plaintiff was required

to report any perceived wrongdoers to those persons who were in a

position to remedy the alleged wrongdoing.”).

Even if the Board bore the ultimate responsibility for making

the decision to outsource, Jones had the authority to develop an

implementation plan and, once it was approved by the Board, to

execute it. UPO’s management developed the rules for determining

18 who would be “riffed” and thereby substantially influenced the

final determinations about which employees would be terminated.

While the Board focused its attention on the general procedures

which would govern the RIF, rather than which specific employees

would be terminated, Jones and upper management were well aware of

how the RIF procedures would affect certain employees. Thus, a

reasonable juror could conclude that Jones was in a position to

remedy Plaintiff’s termination. Huffman v. Office of Pers. Mgmt.,

(Fed. Cir. 2001) (“The purpose of the statute

is to encourage disclosures that are likely to remedy the wrong.”).

Fourth, Defendant makes a similar argument with regard to the

FCA and DCFCA. It argues that “Plaintiff’s conduct was not in

furtherance of an FCA and/or DCFCA claim because he was simply

doing his job.” Def.’s Mot. at 29.

As our Court of Appeals stated in Yesudian,, an employee

engages in protected activity when he discloses fraud and

corruption, as opposed to making a “complaint about mere regulatory

compliance.”

. In this case, Plaintiff

repeatedly stated that he believed that Defendant’s billing

practices were fraudulent and would result in billing the CSBG

grant for unallowable expenditures. He consistently framed these

differences as matters of fraud and ethics, rather than routine

disagreements about regulatory compliance. Therefore there was

sufficient evidence for a reasonable juror to conclude that

19 Plaintiff was engaging in protected activity.

Fifth, Defendant argues that “[t]here simply is no evidence

that Plaintiff used language that would lead Mr. Jones to believe

that Plaintiff made protected disclosures.” Def.’s Mot. at 19.

Defendant argues that to be covered by the WPA, Plaintiff’s

disclosures must use “the language or terminology of fraud, waste,

or misuse.”

As Plaintiff correctly states, however, Plaintiff was not

obligated to use “magic words” to trigger the protections of the

WPA. As the WPA indicates, a disclosure is protected if the

employee “reasonably believes” that he is revealing a gross misuse

of public funds or a violation of a law, rule, regulation, or

contract term. D.C. Code 2-223.01(7).

Sixth, Defendant argues that Plaintiff did not disclose to

Jones any information that “was not already known as [sic] result

of the prior year-end audit reports, Mr. Eboda’s preliminary

report, the Head Start monitoring review and/or The Washington Post

articles.” Def.’s Mot. at 21. Even if this information was

already public and even if Jones already had knowledge of it,

Plaintiff was the one responsible for disclosing it in the first

instance. Defendant introduced no evidence to contradict

Plaintiff’s testimony that his disclosures were the driving force

behind the investigation by the federal and D.C. governments into

the financial practices at UPO.

20 Seventh, Defendant argues that evidence that UPO knew of

Plaintiff’s protected activity was “conspicuously absent in this

case.” Id. at 2. For example, Defendant states that it had no

knowledge of the protected disclosures because Plaintiff “failed to

explain” why he refused to follow “directives.” Id. at 3.

Defendant argues that it concluded he was simply an “insubordinate

and disgruntled employee” and that “Plaintiff at no point indicated

that these concerns arose because of potential violations of a law,

rule or regulation, or gross management, misuse, fraud, waste or

abuse.” Id. at 3, 10.

However, Beckham testified that she observed OIG investigators

enter Plaintiff’s office, that she knew they were OIG

investigators, that she assumed they were reviewing financial

documents in Plaintiff’s office, and that she notified Jones that

Plaintiff was meeting with the investigators. Moreover, Shears and

Mack attended a meeting at which Jennings acknowledged that

Plaintiff had provided financial statements to the Iowa Group.

In addition, Eboda testified that on several occasions, he

provided UPO with knowledge that Plaintiff was engaging in

protected activity. On March 1, 2004, Eboda told a meeting that

included Shears that Plaintiff assisted him with the investigation

into UPO’s finances. On April 5, 2004, Plaintiff met with Jones,

Roberson, and Eboda. At this meeting, Eboda reiterated that

Plaintiff had provided information that was critical to the

21 investigation. Pl.’s Opp’n at 10.

At approximately the same time as Eboda was informing UPO that

Plaintiff had provided information that served as the basis for his

investigation, Plaintiff was telling Jones and Mack that he would

not employ the billing practices they requested. In his April 11,

2004 memorandum to Jones, for example, Plaintiff wrote that “the

1.9 million from the CSBG unspent revenue could not be used to

cover the deficit of UPO.” Def.’s Mot., Ex. 10 (labeled “Pl. Ex.

41”). It is reasonable to conclude that these two separate strands

of information -- that Plaintiff provided Eboda with information

essential to his investigation into UPO’s billing practices and

that Plaintiff was refusing requests from Jones and Mack to

improperly bill certain expenditures to the grant -- provided UPO

with knowledge that Plaintiff was engaging in protected activity.

For all these reasons, the evidence introduced by Plaintiff would

allow a reasonable juror to infer that Defendant had knowledge of

Plaintiff’s protected activity.

Eighth, Defendant argues that Plaintiff has not established

that his protected activity was a contributing factor in UPO’s

decision to terminate Plaintiff. Id. at 25-26. In making this

claim, Defendant rests heavily on its earlier argument that it had

no knowledge of Plaintiff’s protected activity. Id. at 26-27.

The evidence does not support Defendant. When Defendant first

began planing to outsource the Finance Department, it contemplated

22 outsourcing the entire department. Over time, this plan changed,

and when it was finally implemented, Plaintiff was the only

employee in the Finance Office who was, in fact, terminated. A

reasonable juror could certainly conclude that Plaintiff became the

focus of the RIF in the Finance Office as a result of his protected

activity.

Most importantly, a reasonable juror could easily conclude

that the short duration -- one day -- between the OIG’s visit to

Defendant’s office and Plaintiff’s termination demonstrates that

Defendant knew of Plaintiff’s protected activity and that the

termination was motivated by a desire to retaliate against him.

Defendant also argues that because Jones testified that he

began thinking about outsourcing the Finance Office before he was

hired as UPO’s Executive Director, the final decision to terminate

Plaintiff was not made as a result of his protected activity.

However, Jones’ testimony was riddled with inconsistencies and

directly contradicted by the testimony of other witnesses. He

testified that he decided to retain Quashie and terminate Plaintiff

based solely on the recommendation of Ron Walker (“Walker”),

Managing Partner of Walker & Company, rather than the RIF policy.7

In contrast to Jones’ testimony, Beckham testified that Jones

told her that Plaintiff was terminated on the basis of the RIF

7 On May 19, 2004, in response to a request from UPO, Walker & Company submitted a proposed restructuring of the Finance Office. Def.’s Mot. at 12.

23 policy. Roy Lane (“Lane”), Walker’s former partner, also

contradicted Jones’ testimony. Lane testified that he and Walker

met with Jones and Mack and that during that meeting, Jones and

Mack stated that they had already terminated Plaintiff and that

they wanted to retain Quashie. He also testified that he never

recommended that Quashie be retained.

Jones’ testimony during trial was impeached with statements he

made during his deposition. In his deposition, he stated that

Walker made his recommendation to retain Quashie after June 2,

2004, the date when Plaintiff received his RIF letter. However,

the RIF letter stated that Defendant would terminate Plaintiff and

retain and reassign Quashie. During trial, Jones testified that

Walker made his recommendation to retain Quashie before the RIF

letters were delivered.

Although Defendant disputes Plaintiff’s characterization of

the evidence, it was up to the jury to make factual determinations,

to assess the credibility of the witnesses, to evaluate the

plausibility of the arguments advanced by the attorneys on each

side, and to weigh the evidence. To the extent that Defendant

presented evidence contradicting Plaintiff’s, a reasonable juror

could conclude that Plaintiff’s evidence was more credible than

Defendant’s.

For these reasons, viewed in the light most favorable to

Plaintiff, the nonmoving party, there was ample evidence from which

24 a reasonable juror could conclude that Defendant violated the WPA,

the federal FCA, and the DCFCA when it terminated Plaintiff.

Defendant has not introduced evidence sufficient to satisfy its

considerable burden to show that the jury’s verdict should be set

aside.

B. Defendant’s Motion to Amend, for a New Trial, or, for a Remittitur Is Granted in Part and Denied in Part

1. The Court Entered Three Separate Awards of Back Pay and Compensatory Damages

At the conclusion of the trial, the jury returned a verdict

for Plaintiff. On the verdict form, the jury wrote “$122,132.00”

for the WPA back pay award and “$175,050.00” for the WPA

compensatory damages award. For the federal FCA back pay and

compensatory damages awards and for the DCFCA back pay and

compensatory damages awards, it wrote “same as.”8

The in-court recitation of the verdict was similar. When the

jury returned from its deliberations, the foreperson read its

verdict in open court. When the Court asked about the compensatory

damages and back pay awards under the FCA and DCFCA, the foreperson

replied that the jury had agreed to the “same amount.” Defs.’

Reply at 31-32.

8 Eight jurors signed the majority verdict form. One juror signed a minority verdict form, awarding $40,000 in back pay for the WPA claim and $108,000 in compensatory damages. For the back pay and compensatory damages awards under the federal FCA, he wrote “same.” For the DCFCA, he wrote “$108,000” for the back pay award. On the compensatory damages line, he wrote “$40,000.” Below that, but still in the space for compensatory damages, he wrote “same.”

25 When the Court entered the judgment, it entered separate

awards for the WPA, federal FCA and DCFCA claims: i.e. three

separate back pay awards of $122,132 and three separate

compensatory damages awards of $175,050. Thus, a total award of

$891,546 was entered [Dkt. No. 169].

2. The Jury Awarded Plaintiff a Total of $122,132 in Back Pay and $175,050 in Compensatory Damages

Defendant argues that the Court should amend the judgment

pursuant to Federal Rule of Civil Procedure 59(e) or order a new

trial because “manifest injustice will occur because the judgment

is inconsistent with the jury’s true verdict.” Def.’s Mot. at 36.

According to Defendant, the jury’s responses on the verdict form

are so ambiguous that “the true verdict is in doubt.” In the

alternative, Defendant moves the Court to order a new trial to

provide additional instructions on after-acquired evidence or to

grant a remittitur to correct the “excessive” damages awarded by

the jury. See id. at 41, 42 (arguing in the alternative that a new

trial or remittitur should be ordered if the Court determines that

the judgment should not be amended).

In response, Plaintiff argues that “a trial judge cannot

reduce the amount of a jury verdict because of an ambiguity

stemming from the structure of the special verdict form.” Pl.’s

Opp’n at 40. Plaintiff further argues that the Court should not

“second guess the jury’s decision to award $525,150 in compensatory

damages.” Id. at 49.

26 If a jury’s verdict is so “opaque” so as to make any attempt

to determine the jury’s intent “speculative,” then a court may

order a new trial. See Carter v. Dist. of Columbia,

(D.C. Cir. 1986).

However, when a jury’s verdict is clear, a court may not set

it aside. See Daskalea v. Dist. of Columbia,

(D.C. Cir. 2000) (“A jury verdict must stand unless it is ‘beyond

all reason’ or ‘so great as to shock the conscience.”). In

particular, if there is disagreement about the meaning of a jury’s

verdict, the court must first “attempt to reconcile the jury’s

findings, by exegesis if necessary . . . before we are free to

disregard the jury’s special verdict and remand the case for a new

trial.” Gallick v. Baltimore & Ohio. R.R. Co.,

(1963); Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd.,

(1962) (“Where there is a view of the case that makes

the jury’s answers to special interrogatories consistent, they must

be resolved that way.”); Snyder v. Trepagnier,

(5th Cir. 1998) (“Only if there is no view of the case that will

make the jury’s answers consistent may we set aside its decision.”)

(citations omitted); Palmer v. City of Monticello,

(10th Cir. 1994) (“If there is any view of the case which

makes the answers consistent, the case must be resolved in that

way.”). “[I]t is the duty of courts to attempt to harmonize the

answers, if it is possible under a fair reading of them.” Gallick,

27

.

It is clear that primary responsibility for the present

confusion lies with Defendant. Defendant never objected to the

verdict form,9 nor did it request an instruction on the

impermissibility of duplicative awards. Defendant also failed to

request clarification of the jury’s verdict before it was

discharged. Had it been requested, a poll of the jury or an

instruction to resume deliberations could have easily resolved any

questions. See, e.g., Headspeth v. United States,

(D.C. 2006) (“The jury poll is the primary device for

uncovering the doubt or confusion of individual jurors.”) (internal

citations and quotation marks omitted).

Despite Defendant’s failures to bring these issues to the

Court’s attention prior to the jury’s discharge, it is clear that

the jury intended to award Plaintiff only one award for back pay

and one award for compensatory damages. Three facts support this

conclusion.

First, the award of $891,546 that was originally entered by

9 Defendant argues that it did not waive its right to object to the verdict form because “the verdict form is not the per se issue. The primary issue is that the foreperson either misunderstood the Court’s questions in open court or this Court misunderstood the answer, and the issue did not come to light until the parties spoke with the jurors and received the completed verdict form.” Def.’s Reply at 33-34. Defendant is correct that the current issue is the Court’s interpretation of the verdict form, not the form itself. Nonetheless, had Defendant addressed these concerns prior to the jury’s discharge, the issue could have been addressed so as to avoid the confusion that ensued.

28 the Court -- which included $366,396 in back pay -- is inconsistent

with the evidence introduced at trial. Plaintiff’s own damages

expert testified that Plaintiff accrued a maximum of $122,132 in

back pay damages. Def.’s Mot. at 44. The jury obviously credited

that testimony and awarded precisely that amount. As Plaintiff

concedes, an award of $366,396 in back pay is “larger than the

amount a jury could tolerably have awarded.” Pl.’s Opp’n at 49.

Second, the jury’s entries on the verdict form indicate that

it intended to provide Plaintiff with only one award of back pay

and compensatory damages. In the entries for the federal FCA and

DCFCA claims, the jury wrote “same as 1a” and “same as 1b.” The

word “same” indicates that it did not intend to award any

additional damages for those counts. While it is true, in

hindsight, that a clearer verdict form might have been used, it is

also true that the jury indicated that it wished to award one total

award of $122,132 in back pay and $175,050 in compensatory damages

for the WPA, federal FCA, and DCFCA.

Third, under the case law, Plaintiff may not, in any event,

receive duplicative awards under three separate statutes for what

is essentially the same injury.

It is well-settled that a plaintiff is not permitted to

recover multiple awards for the same injury. E.E.O.C. v. Waffle

House, Inc.,

(2002) (“As we have noted, it ‘goes

without saying that the courts can and should preclude double

29 recovery by an individual.’”) (quoting Gen. Tel. Co. of the

Northwest v. E.E.O.C.,

(1980)); Anderson v. Group

Hospitalization, Inc.,

(D.C. Cir. 1987) (“This

portion of the order, therefore, grants Anderson a double recovery

to which she is not entitled.”); United States v. Project on Gov’t

Oversight,

(D.D.C. 2008) (“[T]he Court

declines to award the government another judgment against him in

the same amount arising out of the same conduct -- that would

amount to a double recovery.”); Miller,

n.144 (“The law disfavors double recovery as unjust enrichment.”);

United States, ex rel. Miller v. Bill Harbert Int’l Constr., Inc.,

(D.D.C. 2007) (“[T]he Court holds that the

government may not pursue its equitable claims since they would

result in a double recovery.”); United States v. Smith,

(D.D.C. 2003) (citing several cases for the

proposition that restitution does not include a double recovery).10

10 In Burger v. International Union of Elevator Constructors Local No. 2,

(7th Cir. 2007), the court ordered a new trial on damages because it was unclear whether the jury awarded $25,000, $50,000, or $75,000 in back pay. The trial court used a verdict form much like the one in the present case: the form listed each count, and then included a line beside each count for the jury to enter the damages award.

As a result, when the jury entered $25,000 on one line and $50,000 on the second, the total intended award was not clear.

The court ordered a new trial on damages because no reasonable interpretation of the verdict form could be “squared with the requirement that Burger’s lost wages must be the same regardless of whether liability exists under count one, count two, or both counts.”

. In this case, unlike in Burger, there is a “reasonable interpretation” of (continued...)

30 Our case does not present that problem, since the jury ordered

the same amounts in back pay under each of the three statutes. To

allow Plaintiff to recover three separate awards of back pay and

three separate awards of compensatory damages would obviously

provide him with a triple recovery -- for which there is, as

Plaintiff concedes, no evidentiary basis.

In addition, the compensatory damages figure of $175,050 is

reasonable and has an evidentiary basis. A figure of three times

that -- $525,150 -- would clearly be excessive and does not have an

evidentiary basis, given the fact that Plaintiff was ultimately

able to find another equally challenging position with a slight

increase in pay. Most importantly, the jury’s language indicates

that it was including the “same” amount for each and every count,

demonstrating that it concluded that $175,050 was a single

appropriate amount. As noted earlier, Plaintiff cannot receive a

duplicative award for the same injury.

For these reasons, it is clear as a matter of law that the

jury intended to award a total of $122,132 in back pay and $175,050

in compensatory damages, rather than three times that amount. The

Court erred in initially entering a verdict of $891,546.

10 (...continued) the verdict form that is consistent with the prohibition on double recoveries. Interpreting the verdict form so as to permit only one award of back pay is not only reasonable, but is also more consistent with the evidence introduced at trial and with the jury’s own entries on the verdict form.

31 Accordingly, the judgment is amended to reflect the jury’s intended

award of $122,132 in back pay and $175,050 in compensatory damages.

Because the Court finds that as a matter of law, the jury awarded

a total of $122,132 in back pay and $175,050 in compensatory

damages, neither a new trial11 nor remittitur12 is ordered.

C. Plaintiff’s Motion to Alter or Amend the Judgment Is Granted in Part and Denied in Part

Plaintiff requests that the Court double the back pay award

under the federal FCA and under the DCFCA. Plaintiff argues that

“both the FFCA and DCFCA require the Court to award two times the

lost back pay if the jury finds a violation.” Pl.’s Mot. at 1. In

response, Defendant argues that “Plaintiff’s belief that additional

back pay is mandated is not supported by the plain meaning of the

statutes, case law, or legislative history.” Def.’s Opp’n at 1.

11 Because the Court determines that Plaintiff is entitled to the relief he seeks on other grounds, see supra, it is unnecessary to address Defendant’s argument that the Court erred when it provided an after-acquired evidence instruction on back pay but not on compensatory damages or punitive damages. 12 A court may order remittitur “only if the verdict is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Daskalea,

(internal citations and quotation marks omitted). Remittitur is not appropriate here for two reasons. First, the Court is not “unconditionally reduc[ing]” damages awarded by the jury, but is rather correcting an error in the entry of judgment. Second, because the Court determines that Plaintiff is entitled to the relief he seeks on other grounds, see supra, it is not necessary to consider Defendant’s alternative request for remittitur. Nonetheless, it is worth noting that Plaintiff “agreed that the Court should grant a remittitur and reduce the back pay award from $366,396.00 to $122,132.00.” Pl.’s Reply at 1.

32 The federal FCA states that “relief shall include

reinstatement with the same seniority status such employee would

have had but for the discrimination, [and] 2 times the amount of

back pay.”

(h) (emphasis added). The DCFCA uses

similar language. It states that an employer found liable under

the DCFCA “shall be liable for the relief necessary to make the

employee whole, including reinstatement with the same seniority

status that the employee would have had but for the discrimination,

[and] two times the amount of back pay . . . .”

-

308.16(c) (emphasis added).

A court “must presume that the legislature says in a statute

what it means and means in a statute what it says there.” Dodd v.

United States,

(2005) (internal citations and

punctuation omitted). When a court interprets the D.C. Code, it

may look to an analogous federal statute as a guide. See Wilburn,

.

It is well-settled that when a statute uses the term “shall,”

it creates a mandatory duty. See, e.g., Lopez v. Davis,

(2001) (“Congress used “shall” to impose discretionless

obligations”); see Green v. Bock Laundry Mach. Co.,

,

525 n.32 (1989) (“The process by which Congress changed the

District of Columbia Code to provide that impeaching evidence

‘shall,’ not ‘may,’ be admitted . . . makes it evident that this

mandatory language was intended.”); Zivotofsky v. Sec’y of State,

33

, --- (D.C. Cir. 2009) (“Section 214(d) is plainly

mandatory . . . ‘Shall’ has long been understood as ‘the language

of command.”) (quoting Escoe v. Zerbst,

(1935))

(additional citations omitted); Leonard v. Dist. of Columbia,

(D.C. 2002) (“[T]he normal rule is that verbs such

as “must” or “shall” denote mandatory requirements . . . unless

such construction is ‘inconsistent with the manifest intent of the

legislature or repugnant to the context of the statute.”) (internal

citations and quotation marks omitted).

The federal FCA uses the term “shall” to introduce the list of

the types of relief available under the statute. Our Court of

Appeals explicitly recognized the legal consequences of this term,

stating that “all the § 3730(h) remedies are phrased in mandatory

language (the employee “shall be entitled,” etc.).” Yesudian, 270

F.3d at 972. Thus, it is clear that the federal FCA creates a

mandatory duty to award Plaintiff twice the amount of back pay

awarded by the jury.

The DCFCA imposes the same obligation. In the DCFCA, the word

“including” introduces a list of several different types of relief,

including “two times the amount of back pay.”

-

308.16(c). Defendant argues that “[t]wo times the amount of back

pay is merely illustrative of the manner in which an employee can

be made whole and not a statutory requirement that each and every

type of relief listed is mandatory.” Def.’s Opp’n at 9 (emphasis

34 in original).

The language of the statute is plain, however, that the

“relief necessary to make the employee whole” includes two times

back pay. The statute uses no language to suggest that the list of

types of relief is intended to be “merely illustrative.” The

specific types of relief are not listed to provide an illustration

of options that might be available, but are instead listed to show

the options that must be available to an employee in order to “make

[him] whole.” Because this list contains an award of “two times

the amount of back pay,” a party found liable of a violation of the

DCFCA is obligated to pay the plaintiff double the amount awarded

by the jury.

Although it is clear that the Court is required by both the

federal FCA and the DCFCA to double the back pay award, one issue

remains unresolved: should Plaintiff receive two separate awards of

two times back pay, one for the federal FCA and one for the DCFCA,

or should Plaintiff receive only one award of two times back pay.

Awarding Plaintiff separate damages awards under the federal

FCA and DCFCA would result in a duplicative recovery. As stated

supra II.B.2, a plaintiff is not permitted to recover multiple

damages awards for the same injury. See id. (citing Waffle House,

Gen. Tel., Anderson, Project on Gov’t Oversight, Miller, Bill

Harbert Int’l Constr., and Smith). Accordingly, Plaintiff is

entitled to only one award of two times back pay.

35 The jury awarded $122,132 in back pay. See supra II.B.2. For

the reasons stated above, Plaintiff is entitled to a total back pay

award of two times the jury’s award, or $244,264.

III. CONCLUSION

For the reasons set forth above, Defendant’s Motion for

Judgment as a Matter of Law is denied, Defendant’s Motion to Amend,

Alter the Judgment, or for New Trial, or, in the Alternative,

Motion for a Remittitur is granted in part and denied in part, and

Plaintiff’s Motion to Alter Judgment is granted in part and denied

in part. The judgment is amended as follows: Defendant is liable

to Plaintiff for a total of $244,264 in back pay and a total of

$175,050 in compensatory damages. The total award for back pay and

compensatory damages is $419,314.13

13 Defendant submitted, on August 31, 2009, a Notice of Supplemental Authority in support of the two Motions under consideration at this time. Defendant cites to Gross v. FBL Financial Svcs., Inc.,

(2009), to buttress its argument under the Federal and District of Columbia False Claims Acts. Gross is distinguishable for at least two reasons: first, it involved the Age Discrimination in Employment Act,

(a), and this case does not arise under that statute; and second, in its reasoning, the Court replied upon the existence of a disparate treatment claim, and that is not the claim in this case.

36 An Order shall accompany this Memorandum Opinion.

/s/ September 9, 2009 Gladys Kessler United States District Judge

Copies to: Attorneys of record via ECF

37