United States District Court, S.D. Indiana, Indianapolis Division
UNITED STATES OF AMERICA ex rel. RODNEY C. HEATH and QUINN R. HEATH, Plaintiffs,
INDIANAPOLIS FIRE DEPARTMENT, Defendant.
Jane Magnus-Stinson, Chief Judge
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.
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.
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).
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
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]
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.]
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
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.]
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
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.
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.]
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
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
"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).
Violations of 31 U.S.C. § ...