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United States ex rel. Heath v. Indianapolis Fire Department

United States District Court, S.D. Indiana, Indianapolis Division

April 24, 2017



          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff Rodney Heath ("Rodney") is a backup fire investigator with the Defendant Indianapolis Fire Department ("IFD"). Rodney has filed a qui tarn action pursuant to the False Claims Act ("FCA"), alleging that IFD submitted to the Federal Emergency Management Agency ("FEMA") false statements in connection with a grant application and related payment requests. Rodney's son Quinn Heath ("Quinn") alleges that after Rodney filed this action, IFD retaliated against Quinn by failing to hire him as a firefighter with the Department. Presently pending before the Court is IFD's Motion for Summary Judgment. [Filing No. 78.] For the reasons that follow, the Court denies IFD's Motion as to Rodney's claims and grants IFD's Motion as to Quinn's claim.


         Legal Standard

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, " Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).



         On January 18, 2013, IFD submitted a grant application to FEMA for a Fire Prevention and Safety Grant (the "FP&S Grant"). [Filing No. 78-2.] The application requested funding to expand the territory of IFD's fire investigation unit (the "arson unit") to the south side of Indianapolis. [Filing No. 78-2 at 3-4.] The application specifically requested funding for four fire investigators and one IT Specialist, with each position to be paid a lieutenant-grade salary of $70, 838 and a fringe benefits package of $28, 523. [Filing No. 78-2 at 10-11.] The IT Specialist's job duties were designated in the grant application as assisting with "data collection, management, and analysis." [Filing No. 78-2 at 9.1]

         On April 5, 2013, FEMA staff recommended awarding the grant to IFD. [Filing No. 78-3 at 1.] On May 16, 2013, before the grant was awarded, FEMA grant specialist Francisco Bernal requested that IFD provide the names and salaries of the four investigators and the IT Specialist, as well as the percentages of time that they would each spend on grant-funded activities. [Filing No. 78-4 at 1.] Mr. Bernal requested this information pursuant to the "financial integrity review" that FEMA conducts of each grant application. [Filing No. 78-3 at 2.] IFD Deputy Chief Al Stovall responded by email to that request on May 31, 2013, stating that, as relevant here, Benjamin Tupper would serve as the IT Specialist, that Mr. Tupper would spend 80% of his time on activities related to the grant, and that his annual salary was $73, 113. [Filing No. 78-4 at 3-4.] On June 4, 2013, Mr. Bernal replied by email, asking for clarification that "...the amount that should be requested in the grant application [for Mr. Tupper's salary] is $58, 490. Is that correct?" [Filing No. 84-10 at 1.] Deputy Chief Stovall responded that Mr. Bernal's clarification was correct. [Filing No. 84-10 at 1.] FEMA awarded the FP&S grant on July 19, 2013, with a period of performance to run from July 11, 2013 to July 10, 2014. [Filing No. 78-3 at 1; Filing No. 78-5 at 3.]

         Prior to receiving the grant, beginning sometime in 2011, Mr. Tupper worked in a "special projects" position and reported to Deputy Chief Stovall. [Filing No. 78-7 at 7; Filing No. 78-8 at 25.] After the grant was awarded, IFD "reclassified [Mr. Tupper's] position to accommodate the award of the grant in title and responsibility." [Filing No. 78-8 at 25.] Deputy Chief Stovall instructed Mr. Tupper to spend 80% of his time on grant-related activities. [Filing No. 84-14 at 10.] Mr. Tupper's duties included "gather[ing] the requirements necessary for [IFD] to deliver an application or a series of reports that will allow the arson unit to more efficiently advance their clearance rates, increase their effectiveness overall...." [Filing No. 78-8 at 28.] Mr. Tupper's duties did not include providing technological support for fire investigators in the south side fire investigation unit, where he had been employed prior to his special projects role. [Filing No. 84-14 at 9.] His office remained in the City-County Building, and he did not relocate to the building where the south side fire investigation unit was located. [Filing No. 78-8 at 17; Filing No. 78-8 at 30.]

         Mr. Tupper left the IT Specialist position in February 2014 to return to the fire suppression unit. [Filing No. 84-15 at 24-25.] During the approximately six months that Mr. Tupper worked as an IT Specialist, he attended several meetings with members of the fire investigation unit. [Filing No. 78-8 at 27.] Mr. Tupper also had a standing weekly meeting with Deputy Chief Stovall to update him on their projects. [Filing No. 78-8 at 30.] He also met with members of the Indianapolis Metropolitan Police Department's bomb unit to identify any tools already in use that could "fulfill the requirements of the grant." [Filing No. 78-7 at 15-16.] Mr. Tupper was tasked with creating a "Gantt Chart" of project components by the end of the grant year. [Filing No. 84-15 at 22-23.] He was also tasked with "defining the deliverables" of the grant. [Filing No. 84-15 at 25-26.] Mr. Tupper did not complete either of those projects before his departure six months into the grant. [Filing No. 84-15 at 23-26.]

         Deputy Chief Stovall did not fill the vacant IT Specialist position after Mr. Tupper departed, [Filing No. 78-8 at 43-441. and IFD did not notify FEMA that the IT Specialist position had been vacated, [Filing No. 78-3 at 3"|. IFD eventually sought and received an amendment to the grant, extending its period of performance through December 31, 2014. [Filing No. 78-10 at L] On May 30, 2014, IFD submitted a reimbursement request to FEMA, which included $34, 816.37 for the IT Specialist's costs. [Filing No. 78-9 at 1-4.] On December 8, 2015, IFD submitted a final grant closeout report to FEMA that indicated a charge of $34, 816.37 to the FP&S grant award for the IT Specialist's costs. [Filing No. 78-9 at 20.] Of that amount, FEMA reimbursed $18, 593.03 and IFD paid $16, 223.34 in cost-matching. [Filing No. 78-9 at 3-4]

         Plaintiff Rodney Heath (or the relator, in FCA terminology) is a backup investigator in the arson unit. [Filing No. 78-12 at 8]In January 2015, Quinn Heath, Rodney's son, passed IFD's written examination to become a firefighter. [Filing No. 58 at 5]On March 8, 2015 he passed an oral interview with IFD. [Filing No. 58 at 6]In April 2015, he passed the Certified Physical Agility Test. [Filing No. 58 at 6.] On March 13, 2015, while Quinn was completing the application process with IFD, Rodney filed the qui tarn action in this Court. [Filing No. 1.]

         After completing his required testing, Quinn was ranked 82nd among all applicants in his application cycle. [Filing No. 78-13 at 50.] IFD utilizes an 80/20 policy, under which the Fire Chief is required to fill the first 80% of an entering class's slots with candidates chosen in rank order, and he may choose the remaining 20% from anyone remaining on the eligibility list. [Filing No. 84-19 at 8-9.] 30 applicants were selected for the academy class scheduled to begin on August 3, 2015. [Filing No. 84-19 at 14-15]Fire Chief Ernest Malone selected the top-ranked 24 applicants to meet the 80% rule, and he selected the remaining 20% based on his discretion. [Filing No. 84-19 at 10.] In May 2015, Quinn learned that he was not selected for this class. [Filing No. 84-20 at 2-3.]

         On September 16, 2015, Quinn was informed that he had not been selected for the second recruit class scheduled to begin February 2016. [Filing No. 84-12 at 1-2.] For that class, Chief Malone selected 39 applicants. [Filing No. 84-19 at 15.] He selected 27 applicants based on rank and 12 applicants based on discretion. [Filing No. 84-19 at 13.]

         Also on September 16, 2015, Deputy Chief Fred Pervine informed Lieutenant Mario Garza and others that they were scheduled to be interviewed by federal investigators regarding the FP&S Grant. [Filing No. 84-13.] When Lieutenant Garza asked Deputy Chief Pervine why these individuals were being interviewed, Deputy Chief Pervine responded that Rodney had made a complaint to the federal government. [Filing No. 84-17 at 1-9.]



The Plaintiffs raise three claims under the False Claims Act, the first two brought by Rodney, and the third brought by Quinn: (1) violation of 31 U.S.C. § 3720(a)(1)(B), alleging that IFD falsely represented to FEMA that Mr. Tupper would be the IT Specialist and would dedicate 80% of his work time to the FP&S Grant; (2) violation of 31 U.S.C. § 3729(a)(1)(A), alleging that IFD submitted false reimbursement requests when it requested reimbursement for Mr. Tupper's salary; and (3) violation of 31 U.S.C. § 3730(h), alleging that IFD unlawfully retaliated against Quinn because of Rodney's qui tarn action.

         The FCA "permits private citizens, called relators, to prosecute qui tarn suits against alleged fraudsters on behalf of the United States government." Thulin v. Shopko Stores Operating Co., LLC, 771 F.3d 994, 998 (7th Cir. 2014). The United States may opt to intervene in a qui tarn suit, 31 U.S.C. § 3730(b)(2), but where it declines to do so-as it has here, [Filing No. 31]-the relator may continue pursuing the lawsuit. United States ex rel. Watson v. King-Vassel, 728 F.3d 707, 711 (7th Cir. 2013); 31 U.S.C. § 3730(c)(3).

         A. Violations of 31 U.S.C. ยง ...

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