United States District Court, Western District of New York
March 7, 2002
UNITED STATES OF AMERICA EX REL. CHARLES
FARRELL, PLAINTIFF/RELATOR, VS. SKF USA, INC. D/B/A MRC BEARINGS, DEFENDANT.
The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge
Decision and Order
This qui tam action is brought by plaintiff/relator, a former employee
of defendant, claiming that defendant violated the False Claims Act,
codified at 31 U.S. Code § 3729 et seq., by presenting false claims
for payment for aerospace bearings. Relator alleges that the bearings
were not tested, cleaned, preserved and/or packaged for shipment in
accordance with military specifications as required in the contracts
between defendant and the U.S. government, as well as other contractors
who utilized the bearings to provide goods to the government as an
end-user. The case is now before the Court on relator's motion for
partial summary judgment and defendant's motion for summary judgment.
After considering the papers filed in support of and opposition to the
two motions, along with lengthy oral argument on October 25, 2001, the
Court grants relator's motion for partial summary judgment (finding that
MIL-P-197 was applicable to defendant) and grants defendant's motion for
summary judgment, dismissing the case.
Relator was an employee of SKF USA, doing business as MRC Bearings
("MRC" or "defendant") as a senior quality assurance supervisor until
June 1993. On May 14, 1993, MRC became aware of problems with the
cleaning and preservation tanks and the packaging systems at its plant.
This occurred when Jeffrey Kelly, a quality assurance representative for
Pratt & Whitney Canada, who had a permanent office at MRC's plant in
Falconer, New York, informed defendant's employee, Alan Lamb, that Pratt
& Whitney had detected cleanliness problems with certain MRC bearings.
Lamb and Kelly investigated and found problems in MRC's "white room."
They discovered that certain cleaning tanks in the white room were
dirty. Lamb paged relator and that was the first time relator learned of
the problems. Subsequent to being informed of the situation, defendant,
more specifically, discovered problems with bearing cleanliness for
bearings it manufactured from February 1991 through June 1993.
Relator told MRC management that, notwithstanding that MRC cleaned its
tanks and replaced the solvents, oils, and greases, MRC also had a duty
under the military specification MIL-P-197 to notify its customers of the
problem. Such customers included not only the U.S. government, but also
included customers who provided end products to the government made with
MRC bearings. MIL-P-197 is a military specification entitled "Packaging
of Bearings, Antifriction, Associated Parts and Subassemblies." It is a
process specification that was part of nearly all MRC contracts at issue
for the period of February 1991 to June 1993. Relator contends that MRC
did not comply with MIL-P-197 testing and bearing cleanliness standards
for the period; submitted government DD-250 payment voucher forms
asserting that MRC had complied with MIL-P-197; and failed to follow
contract specification obligations requiring MRC to notify the government
of non-conform- ing products.
In July 1993, defendant notified, among others, the Defense Contract
Management Command in Buffalo, New York ("DCMC-Buffalo") and General
Electric ("GE"), another of its customers, of the MRC bearing cleanliness
problems. The notification in the case of DCMC-Buffalo consisted of a
letter defendant sent stating in part that, "[r]esults of contamination
tests on bearings taken from stock and which were packaged between 2/91
and 5/93 indicated
that the cleanliness level of bearings was slightly
below MRC's expectation." G. Selden letter to DCMO-Buffalo (Jul. 16,
1993) at 1. Subsequently, in August 1993, MRC told GE that a certain
number of packaged bearings failed MRC's tests because of the presence of
abrasive-laden contaminates in the preservative oil and grease used in
Summary Judgment Standard
The law on summary judgment is well settled. Summary judgment may only
be granted if "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c).
That is, the burden is on the moving party to demonstrate that the
evidence creates no genuine issue of material fact. Chipollini v. Spencer
Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) (en banc). Where the non-moving
party will bear the burden of proof at trial, the party moving for summary
judgment may meet its burden by showing the evidentiary materials of
record, if reduced to admissible evidence, would be insufficient to carry
the non-movant's burden of proof at trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986). Once the moving party has met its initial
obligation, the opposing party must produce evidentiary proof in
admissible form sufficient to raise a material question of fact to defeat
a motion for summary judgment, or in the alternative, demonstrate an
acceptable excuse for its failure to meet this requirement. Duplantis v.
Shell Off-Shore, Inc., 948 F.2d 187 (5th Cir. 1991); Fed.R.Civ.P. 56(f).
Once the moving party has met its burden, mere conclusions or
unsubstantiated allegations or assertions on the part of the opposing
party are insufficient to defeat a motion for summary judgment. Knight v.
United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986).
The court, of course, must examine the facts in the light most
favorable to the party opposing summary judgment, according the
non-moving party every inference which may be drawn from the facts
presented. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Maguire v. Citicorp Retail Services, Inc., 147 F.3d 232, 235 (2d Cir.
1998). However, the party opposing summary judgment "may not create an
issue of fact by submitting an affidavit in opposition to a summary
judgment motion that, by omission or addition, contradicts the affiant's
previous deposition testimony." Hayes v. New York City, Department of
Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
Subject Matter Jurisdiction
The False Claims Act is a Civil War statute, amended once in 1943 and
again in 1986. It provides for criminal and civil penalties for
presenting a false claim against the United States. From its enactment, it
has carried a qui tam provision, short for qui tam pro domino rage QAM
pro se ipso in hac parte sequitur ("Who brings the action for the King as
well as for himself"). See United States ex rel. Mathews v. Bank of
Farmington, 166 F.3d 853, 857 (7th Cir. 1999). The 1986 amendments added
a "jurisdictional"*fn1 bar to qui tam actions to protect against
lawsuits. Id. at 858 (citation omitted). The purpose of the qui
tam provision is "to encourage and reward the exposure of fraud against
the government. . . ." Id. at 859.
In its motion, defendant contends that relator's allegations fail to
meet the "subject matter jurisdiction" requirements of 31 U.S. Code
§ 3730(e)(4). That section provides in part that,
(4)(A) No court shall have jurisdiction over an action
under this section based upon the public disclosure of
allegations of transactions in a criminal, civil, or
administrative hearing, in a . . . congressional,
administrative, or Government Accounting Office
report, hearing, audit, or investigation, or from the
news media, unless the action is brought by the
Attorney General or the person bringing the action is
an original source of the information.
Section 3730(e) also contains a definition of "original source." That
(4)(A) For purposes of this paragraph, "original
source" means an individual who has direct and
independent knowledge of the information on which the
allegations are based and has voluntarily provided the
information to the Government before filing an action
under this section which is based on the information.
Defendant contends that relator has failed to prove subject matter
jurisdiction under this section by a preponderance of the evidence.
Defendant argues the record makes clear that this suit "is based upon
allegations of fraud which were the subject of an extensive
administrative investigation which was `publicly disclosed' as that term
is used in the statute." Memorandum of Law in Support of Defendant's
Motion for Summary Judgement ("Defendant's Memorandum") at 24-25.
Defendant maintains that Jeffrey Wickwire, one of the government's
quality assurance representatives, investigated the contamination issue
for the purpose of determining whether the bearings violated any contract
specifications during mid-May 1993. Defendant states that Wickwire's
investigation shows that the public officials who had managerial
responsibility for the "very claims being made," constituted a public
disclosure, citing United States ex rel. Mathews v. Bank of Farmington,
166 F.3d 853 (7th Cir. 1999) in support.
On the other hand, relator responds that he was the source of
information about the bearing cleanliness problems to DCMC's Quality
Assurance Branch Chief, Dennis Orcutt, Wickwire's supervisor, in a
telephone call to Orcutt on July 12, 1993, and the source of information
for G.E. Memorandum of Law in Opposition to Defendant's Motion for
Summary Judgment ("Relator's Opposition Memorandum") at 6. Relator also
contends that defendant understated the extent and severity of the
problem, thereby misleading Wickwire and Orcutt. Relator relies on cases
holding that notice of a contract violation to "low level governmental
officials" is insufficient to avoid liability under the False Claims
Act. See United States ex rel. Mayman v. Martin Marietta Corp.,
894 F. Supp. 218, 223-224 (D. Maryland 1995); United States ex rel.
Hagood v. Sonoma County Water Agency, 929 F.2d 1416, 1421 (9th Cir.
1991); United States ex rel. Kreindler & Kreindler v. United Technologies
Corp., 985 F.2d 1148 (2d Cir. 1993).
The threshold question is whether the bearing cleanliness problems were
publically disclosed. Relator does not dispute that it was Kelly of Pratt
& Whitney Canada who first brought the problem to MRC's attention on May
14, 1993. See Statement of Undisputed Facts ("Defendant Statement") at 6
13; Rule 56 Statement in Response to Defendant's Statement of Undisputed
Facts at ¶ 2. Nor,
does Relator dispute that MRC notified Wickwire, the
resident government quality assurance representative, on May 14, 1993.
Id. at ¶ 23. Rather, relator contends that defendant misled the
government as to the extent of the problems. On this point, relator also
relies on the July 16, 1993 letter of Gary Selden, defendant's quality
assurance manager, to DCMO-Buffalo (Jul. 16, 1993) at 1.*fn2 In this
correspondence, Seldon revealed only that "[r]esults of contamination
tests on bearings taken from stock and which were packaged between 2/91
and 5/93 indicated that the cleanliness level of bearings was slightly
below MRC's expectation," (emphasis added). This was a gross
understatement of the problems and even implied that the bearings still
met military specifications, but fell short only of MRC's own
specifications. Selden's cleverly worded letter obscured the issue of
whether the bearings violated military specifications, as is borne out by
Orcutt's deposition testimony, in which he stated that it was not until
receiving relator's information that he understood the degree of the
contamination. See Orcutt dep. at 102. Selden also told Orcutt, during
his July 13, 1993 visit to defendant's plant in Jamestown, New York, that
11 out of 32 pieces tested (34.4%) failed; yet, he told G.E. that 21 out
of 32 pieces tested (65.6%) failed. See Fleming aff.*fn3 at ¶ 22. In
this regard, Orcutt testified that after receiving Seldon's letter, he
received information from relator that influenced his understanding of
the degree of the contamination. He stated,
[t]here was the comment [slightly below
expectations], there was Mr. Farrell's [relator's]
phone calls and visits to me. There was a lack of
knowledge on my part to what degree this thing was.
There was a lack of knowledge on our part as to the
degree of contamination and the types of indications,
linear indications . . . [l]ength of a piece of
Orcutt dep. at 102.
Further, Orcutt testified, in response to relator's counsel's
questioning, that despite MRC's tests after learning of the contamination
problem, MRC had a continuing duty to test all the materials used in the
manufacture of these precision bearings. Orcutt dep. at 232. MRC had an
obligation to see that contamination was at or under the allowed
contamina- tion in MIL-P-197. Id. at 233. Finally, Orcutt concluded that
MIL-P-197 would apply to defendant if it was a condition of the contracts
between the government and defendant for the manufacture of the
bearings. Id. at 233.
Based on the evidentiary submissions, the Court agrees with relator's
position that although the existence of the bearing
was revealed to the government, the extent and degree of the problems
were not. The Court further agrees with relator that he was the original
source of information pertaining to the degree and extent of such
problems. Therefore, the limitations on the Court's jurisdiction, set out
in 31 U.S. Code § 3730(e)(4), do not apply. See United States ex
rel. Mathews, 166 F.3d at 858 ("[t]he jurisdictional bar arises only if
the information upon which the qui tam claim is based has been publicly
disclosed and the plaintiff was not the original source of the
Relator's Motion for Partial Summary Judgment
Relator asks the Court to make a ruling as a matter of law that
MIL-P-197 was applicable to defendant. See Memorandum of Law ("Relator's
Memorandum") at 4. Since defendant, at oral argument, conceded that
MIL-P-197 does apply to the bearings in question, the application is
Defendant's Motion for Summary Judgment
Defendant's position is that, notwithstanding the applicability of
MIL-P-197, it has never violated any contract specifications and that the
very governmental officials whose positions required them to make that
determination came to the same conclusion. See Defendant's Memorandum at
7-10. Defendant cites testimony from the government's quality assurance
representative at the plant, Wickwire, his superior at DCMC-Buffalo,
Orcutt, Orcutt's superior, Major John Pritchard, and his superior Colonel
David L. Sims. Each of these government representatives came to the
conclusion that defendant had not violated any specifications of their
contracts. Id. Relator argues they all are wrong in their interpretation
of the extent of the military specification's applicability to
The False Claims Act reads in relevant part:
(a) Liability for certain acts. — Any person who —
(1) knowingly presents, or causes to be presented, to an officer or
employee of the United States Government or a member of the Armed
Forces of the United States a false or fraudulent claim for payment
(2) knowingly makes, uses, or causes to be made or used, a false
record or statement to get a false or fraudulent claim paid or
approved by the Government; . . . or
(7) knowingly makes, uses, or causes to be made or used, a false
record or statement to conceal, avoid, or decrease an obligation to
pay or transmit money or property to the Government, is liable to the
United States Government for a civil penalty of not less than $5,000
and not more than $10,000, plus 3 times the amount of damages which
the Government sustains because of the act of that person. . . .
(b) Knowing and knowingly defined. — For purposes of this
section, the terms "knowing" and "knowingly" mean that a person, with
respect to information —
(1) has actual knowledge of the information;
(2) acts in deliberate ignorance of the truth or falsity of the
(3) acts in reckless disregard of the truth or falsity of the
information, and no proof of specific intent to defraud is required.
(c) Claim defined. — For purposes of this section, "claim" includes any
request or demand, whether under a contract or otherwise, for money or
property which is made to a contractor, grantee, or other recipient if
the United States Government
provides any portion of the money or
property which is requested or demanded, or if the Government will
reimburse such contractor, grantee, or other recipient for any portion
of the money or property which is requested or demanded.
31 U.S. Code § 3729(a),(b) & (c).
Relator, in effect, conceded at his deposition, that prior to May 14,
1993, defendant was not involved in making any false claims. Farrell
dep. at 214. The specific pertinent questions and answers were:
Q. Now, let's go to the period before May 14th, 1993.
Is it your position, Mr. Farrell, that at that time
the company was involved in perpetrating a fraud on
Q. to May 14th, 1993.
A. No, it was not.
Q. Okay. That in your own mind the company was not
making false claims on the government prior to that
A. In my mind and to the best of my knowledge, no.
Farrell dep. at 214. Later, in the same deposition, he reaffirmed his
stated position, that defendant was not involved in any false claim prior
to May 14, 1993. See Farrell dep. at 217. Farrell returned to this issue
still later in his deposition when he stated that, "[t]here may have been
a violation but I don't think it was intentional." Farrell dep. at 401.
Defendant's counsel followed-up with questions to which Farrell replied:
Q. Okay. And do you think the company was behaving
recklessly prior to that time [May 14, 1993]?
A. No, sir.
Q. Or with any kind of deliberate head in the ground
Farrell dep. at 401.
Federal Rule of Evidence 801(d)(2) discusses the admissibility of an
admission by a party opponent. Such a statement is admissible if it is
offered against a party and is the party's own statement, in either an
individual or a representative capacity. Clearly, relator's statement
fits that definition and the Court finds, as a matter of law, that it is
admissible and that it severely undermines relator's case against
defendant. In essence, relator and each of the government
representatives, from Colonel Sims on down to the field representative at
defendant's plant, all believe that defendant did not intentionally,
recklessly or with deliberate ignorance, submit any false claims to the
government prior to May 14, 1993. The Court finds that the evidentiary
proof necessarily limits the period of the alleged false claims to that
period after discovery of the contamination problem, that is, after May
As to the period after May 14, 1993, defendant stated at oral argument
that after May 14, 1993, MRC shipped no dirty bearings. Defendant states
that on the day of the discovery, the line producing the bearings was
shut down and the contaminated tanks cleaned. MRC informed*fn4 the
government representative of the problem, providing further details as
their investigation progressed. Wickwire dep. at 30. The in-house
representative for Pratt and Whitney, the company that originally alerted
MRC to the bearing cleanliness issue, participated in the task force MRC
created to address the problem and the government quality assurance
representatives were copied on the minutes of that
task force. Kelly
dep. at 32-33. Relator agreed that the cleaning tanks at issue were
cleansed, their filters changed and testing was done to determine whether
they were contaminated. Kelly dep. at 26; Farrell dep. at 110, 195; Lamb
dep. at 23. Where relator takes issue with defendant is on whether
defendant's post-contamination discovery actions were adequate.
That is, relator argues that defendant had an obligation not only to
clean the tanks, but also to inform its customers of the problem and
failed to do so completely, or, did so without the requisite candor.
Complaint at ¶¶ 9, 14, 15, 25. Defendant contends that its claim to the
government was complete once it submitted the DD 250 form, Material
Inspection and Receiving Report, and that there was no knowing false
claim. Thus, it argues, a failure to notify its customers does not equate
to a false claim. Relator responds that the false statement was in the
letters MRC sent out understating the problem. Further, relator contends
that defendant's failure to follow-up with extensive testing and full
notification to government contracting representatives constituted
violations of the False Claims Act. See Amended Complaint at ¶ 36-42. The
As discussed above, the Court finds that the only claims that remain at
issue are the ones submitted by defendant subsequent to May 14, 1993,
after the cleanliness problem was identified. Clearly, no knowing false
claim was submitted prior to May 14, 1993. As previously indicated,
relator has admitted as much, and the other evidence supports this
conclusion. As to the letter and representations Selden made on
defendant's behalf to the government after May 14, 1993, the Court
disagrees with relator's characterization of those representations as
fitting within the definition of claims. As was made clear at oral
argument, the claims had already been submitted prior to May 14, 1993,
and payment made. After May 14, 1993, defendant submits that it followed
the military specifications for tank cleanliness and inspections.
Relator, at his deposition, agreed. See Farrell dep. at 119, 195. He
stated that only conforming products were being shipped after May 14,
1993, and that products which had been preserved prior to May 14, 1993,
were tested on a lot by lot basis, those found dirty were rewashed and
represerved. Id. Selden's obfuscation took place after the claims had
been submitted and paid and were not made to "to get a false or
fraudulent claim paid or approved by the Government." See 31 U.S. Code
Therefore, the Court finds as a matter of law that no material issue of
fact precludes summary judgment for defendant and the evidentiary proof
in admissible form shows conclusively that defendant is entitled to
judgment on the claims asserted by relator under 531 U.S. Code §
3729(a)(3) allows recovery by a relator for a conspiracy to obtain
payment for a false claim. Relator has not alleged any members of a
conspiracy or acts in furtherance of a conspiracy. Defendant has met its
burden to show that relator's proof is insufficient to carry the
non-movant's burden of proof at trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986). 31 U.S. Code §§ 3729(a)(1), (2) and (3).*fn5
Though defendant's acts might constitute a contract violation, they did
not violate the False Claims Act.
Relator's Wrongful Termination Claim
Relator also plead a cause of action under the False Claims Act's
"whistle blower" provision. See Amended Complaint at ¶¶ 44-47. That
(h) Any employee who is discharged, demoted,
suspended, threatened, harassed, or in any other
manner discriminated Sagainst in the terms and
employment by his or her employer
because of lawful acts done by the employee on behalf
of the employee or others in furtherance of an action
under this section, including investigation for,
initiation of, testimony for, or assistance in an
action filed or to be filed under this section, shall
be entitled to all relief necessary to make the
employee whole. Such relief shall include
reinstate-ment with the same seniority status such
employee would have had but for the discrimination, 2
times the amount of back pay, interest on the back
pay, and compensation for any special damages
sustained as a result of the discrimination, including
litigation costs and reasonable attorneys' fees. An
employee may bring an action in the appropriate
district court of the United States for the relief
provided in this subsection
31 U.S. Code § 3730(h). The Third Circuit has held that,
the False Claims Act also requires employees to prove
they were discriminated against "because of their
"protected conduct." To meet this requirement, a
plaintiff must show his employer had knowledge that he
was engaged in "protected conduct" and that the
employer retaliated against him because of that
conduct. Several courts of appeals have held that the
knowledge prong of § 3730 liability requires the
employee to put his employer on notice of the
"distinct possibility" of False Claims Act
litigation. Yesudian, 153 F.3d at 740; Childree, 92
F.3d at 1146; Hopper, 91 F.3d at 1269; Neal, 33 F.3d
at 864. We agree with this formulation.
Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176
, 188 (3d Cir. 2001).
Both relator and defendant agree on the following facts relative to
relator's claim of wrongful termination. After a meeting on June 4,
1993, relator was upset with his supervisor, Anthony DelSignore, because
DelSignore denied relator's request that defendant's customers be
notified about the bearing cleanliness problem. Following this meeting,
relator scheduled a meeting with David Lewandowski, defendant's director
of human resources. The meeting with Lewandowski was to take place on
Monday, June 7, 1993. However, on Sunday, June 6, 1993, relator came to
the plant and removed his personal effects from his office. He then
drafted a letter of resignation, which he brought with him to the Monday
meeting with Lewandowski. The general tone of the letter is one of
regret, that is, relator writes regretting the deterioration of the
management's support for product quality. See Charles V. Farrell letter
to David Lewandowski (Jun. 7, 1993) (attached as Exhibit O to Sedita
decl.). The closing paragraphs are as follows:
Current events, however, have put me in a position
that I can no longer support MRC. Tony DelSignore has
completely and totally demoralized my department, my
supervisors, and myself with his continued
unreasonable objectives, constant verbal assault and
the threat of being fired, in addition to the
questionable stances that he takes with regard to
product quality as interpreted by him. It has come to
the point that I cannot win, if I disagree with a
position that he takes I'm being radical and "not
supporting the organization", if I agree it's
interpreted as "malicious compliance", although this
is quite contrary to what I have stated in all my
performance reviews which have been conducted by no
less than five (5) different Plant Managers.
It is therefore with much regret that I am forced to
tender my resignation as I am being put in a situation
that I cannot ethically or morally support, nor can I
sit by and watch the continued deterioration of the
inspection and quality systems.
Id. Relator, when deposed, testified that it was his intent on June 7,
1993, to either have the customers notified by defendant of the
contamination problem, or give the letter to Lewandowski and resign, then
notify the customers himself. Farrell aff. at 276. However, on June 7,
when relator met with Lewandowski, he did not give him the letter of
resignation. Id. Relator subsequently testified that,
The only reference to anything regarding my continued
[sic.] or terminating of my employment was that I told
Mr. Lewandowski that the customers were going to be
notified, that either MRC SKF [defendant] could
accomplish that or they could have my resignation and
I would accomplish that and if he wanted the
resignation I had a copy of it ready to sign right
there. Dave Lewandowski assured me that that would not
be necessary, that he would get with Mr. Bozogan and
Mr. Nilsson and Mr. DelSignore and would get back with
me on what the result was to this issue.
Farrell dep. at 277-78.
In his Supplemental Responses to Interrogatories (a copy of which is
attached as Exhibit K to Sedita decl.), at 1, relator stated that, "with
his words and actions in June of 1993 that he communicated to David
Lewandowski that if the Defendant were to take appropriate corrective
action regarding the problems identified in [Relator's] Complaint herein
that [Relator] would desire to keep his employment with Defendant."
However, Lewandowski testified that relator told him "that [relator] felt
he needed to resign his position." Lewandowski aff. at 35. Lewandowski
testified that relator resigned, "because he had a manning level dispute
with his supervisor." Id.
Relator contends there is a material question of fact precluding
summary judgment on this cause of action: "[t]he issue is, did [relator]
lose his employment as a result of his insistence that he could not be a
part of a cover-up of a serious problem at the MRC plant." Plaintiff's
Memorandum of Law in Opposition to Defendant's Motion for Summary
Judgment (# 124) at 9. However, as defendant points out in his
memorandum, the record contains no evidence that relator was asked to
participate in a "cover-up." Reply Memorandum of Law in Further Support of
Defendant's Summary Judgment Motion (# 129) at 8. Relator conceded at his
deposition that he, for reasons unrelated to the False Claims Act, did
not notify Jeff Wickwire, the government's quality assurance
representative, about the cleanliness problem. When asked why, he
As with most problems or issues that popped up within
MRC we're big boys, we take care of our own problems.
We fix the customer up and we move on with business.
There was no need for me to sit down with Jeff and say
we have this problem. I figured we would take care of
Farrell dep. at 205. Additionally, relator's own testimony belies his
suggestion that he was forced into a cover-up:
Q. Mr. Farrell, you could have informed the customers at
anytime without quitting couldn't you?
A. Not necessarily. Well, yes, sir, I could have sat
at home and called every night. I probably could
have done that. Typically I would expect somebody
in the company to stand up and say that this is the
right thing to do.
Q. You were right across the hall from Mr. Wickwire,
Q. You could have walked over and talked to him couldn't
A. I could have, yes.
Q. Was there a rule against talking to him?
A. No, there was not.
Q. Any reason why you didn't walk across the hall and
just tell him, I've got a concern, I think this is
a bad process going on here?
Farrell dep. at 283-84.
Defendant has adequately shown that relator's evidentiary materials of
record, if reduced to admissible evidence, would be insufficient to carry
the non-movant's burden of proof at trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986). Therefore, defendant is entitled to summary
judgment on the wrongful termination cause of action.
In light of the above, the Court grants relator's motion for partial
summary judgment (# 117) and holds, as a matter of law, that MIL-P-197
was applicable to defendant. However, the Court also grants defendant's
motion for summary judgment (# 112). The Clerk is directed to enter
judgement for defendant and close this case.