[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
September 19, 2005
No. 05-12747 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00178-CV-1
KEVEN J. MACK,
Plaintiff-Appellant,
versus
AUGUSTA-RICHMOND COUNTY, GEORGIA,
ADMINISTRATOR GEORGE KOLB,
in his Individual and Official Capacity,
Defendants-Appellees,
LEE BEARD, in his Individual and Official Capacity,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 19, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant, Keven Mack, appeals the district court’s grant of summary
judgment in favor of Appellees, Augusta-Richmond County and George Kolb, in
his action alleging, inter alia, that Appellees terminated him in violation of the
False Claims Act (“FCA”) providing protection to whistle blowers, 31 U.S.C. §
3729, et seq.1 For the following reasons, we affirm the district court’s judgment.
I. BACKGROUND
Appellant worked for the consolidated government of Augusta-Richmond
County (“Augusta”) as the Director of Housing and Neighborhood Development.
His job duties included overseeing Augusta’s disbursement of federal grant money
from the United States Department of Housing and Urban Development (“HUD”)
through the Community Development Block Grant program (“CDBG”).2
Appellant’s duty to oversee these disbursements required efficient management
and ensuring compliance with the applicable regulations.
1
Appellees make reference to Appellant’s claim made to the district court under 42
U.S.C. § 1983 alleging his termination violated his right to free speech. However, Appellant
makes no argument under § 1983 in his brief on appeal; thus, while referenced in his Civil
Appeal Statement, the argument is waived. See, e.g., Greenbriar, Ltd. v. City of Alabaster, 881
F.2d 1570, 1573 n.6 (11th Cir. 1989).
2
Sometime around the date of Appellant’s hire and continuing beyond his employment,
Augusta was audited by HUD and faced problems with HUD compliance.
2
Sometime in 2000, Augusta named the East Augusta Community
Development Corporation (“East Augusta”) as a Community Development
Housing Organization (“CDHO”), which are development partners eligible for
HUD funds through the CDBG program. Augusta entered into a contract with
East Augusta to oversee the rehabilitation of the Lincoln Square Apartments in
Augusta. Under the contract, East Augusta would act as sub-recipient of CDBG
funds provided to Augusta by HUD. East Augusta’s use of CDBG funds was
subject to the HUD regulations and guidelines. Failure to comply with the
applicable HUD guidelines and bidding procedures could result in Augusta being
required to remit all funds disbursed under the CDBG. East Augusta pulled in a
partner, Capital Development Corporation, to help East Augusta remain compliant
with the HUD guidelines.
East Augusta sought a contractor for the Lincoln Square project. However,
at a meeting to discuss the bidding procedures required to comply with the HUD
guidelines, employees of Appellant’s department learned that East Augusta had
already entered into a contract with Gold Mech, Inc. (“Gold Mech”)3 for the
Lincoln Square project without soliciting competitive bids as the HUD regulations
3
It is unclear what the proper designation is for this entity as it is referred to as GoldMech,
Inc., Gold Mech, Corp. and Gold Mech, Inc. in the record.
3
require. Following this meeting, at Appellant’s request, an employee in
Appellant’s department contacted HUD to obtain an opinion about this
procurement. HUD issued a memorandum opining that Capital Development
Corporation violated the HUD regulations by not utilizing a competitive bidding
process. In subsequent months, Augusta Commissioners and Augusta’s attorney
Jim Wall (“Wall”) became involved and Augusta continued to work with HUD to
resolve the problem.
In September 2001, Appellant, several Augusta Commissioners, Wall and
other employees had a meeting with Stella Taylor of HUD to discuss the Lincoln
Square project. During the meeting, Augusta and HUD agreed to carve out three
items of the construction contract to rebid according to HUD regulations.
Invitations for bids were sent out, including an invitation to Gold Mech, whose bid
was significantly lower that the next low bidders. After Appellant learned of Gold
Mech’s participation in the bidding, he called HUD and it appears later sent an e-
mail to Wall requesting a meeting to discuss the procurement issue before
awarding contracts on the rebids. However, Gold Mech had already been awarded
the contracts. Another employee in Appellant’s department, John Kemp,
contacted HUD regarding the rebids and Kemp sent Appellant an e-mail
expressing his concern about the rebids and noncompliance with the HUD
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guidelines. Appellant forwarded the e-mail to Wall and copied it to his supervisor
the City Administrator, George Kolb (“Kolb”). Wall responded, disagreeing with
Kemp’s assessment and indicated that he had spoken with Stella Taylor of HUD to
confirm that there was no problem with Gold Mech participating in the rebid.
Wall also stated that he would “appreciate [Appellant] not calling HUD for a
second opinion on issues which you ask me to address–this merely complicates the
whole process.”
Subsequently, Kolb asked for Appellant’s resignation and presented him
with a severance package and informed Appellant that his termination would
follow if he did not resign. Kolb allegedly responded to Appellant’s questions as
to why he was being terminated that he did not like Appellant bringing up the fact
that Gold Mech had rebid. Almost a month later, at a regular meeting of the
Augusta Commission, Kolb recommended to the Commission that Appellant’s
employment be terminated. The Commission meeting minutes reflect that Kolb
recommended termination, stating only: “I have lost confidence in [Appellant’s]
ability to lead the Housing and Neighborhood Department effectively.” On the
day of the commission meeting, Appellant’s attorney faxed a letter to Wall asking
that the letter be presented to the Commission prior to the vote. The letter stated
that Kolb ignored Appellant’s accomplishments and simply criticized him about
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the Lincoln Square project and accused Kolb and the Commission of acting to
terminate Appellant “for protecting the public’s trust.” The Commission voted
seven-to-one to terminate Appellant. In his deposition Kolb gave several reasons
for recommending Appellant’s termination, including lack of sufficient
management skills and inability to make decisions without outside assistance. The
Commissioners filed affidavits stating that they voted to terminate based upon
Kolb’s recommendation.
Plaintiff subsequently filed a complaint alleging violations of the False
Claims Act, 31 U.S.C. 3129 et seq., inter alia, contending he was terminated in
retaliation for raising concerns and questions about Gold Mech’s participation in
the rebid process.
II. STANDARD OF REVIEW
This court reviews a district court’s grant of summary judgment de novo,
Jones v. City of Columbus, 120 F.3d 248, 251 (11th Cir. 1997), viewing the facts
in the light most favorable to the nonmovant, Childree v. UAP/GA AG Chem.,
Inc., 92 F.3d 1140, 1142 (11th Cir. 1996).
III. DISCUSSION
6
Appellant argues that his termination was an act of retaliation violating the
FCA, 31 U.S.C. § 3729 et seq. Pursuant to § 3730(h) “whistle blower” protection
is provided for an employee
who is discharged . . . 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.
Protection under this provision requires a showing that Appellant was engaged in
protected conduct and that Appellees retaliated against him because of that
protected conduct. See Mann v. Olsten Certified Healthcare Corp., 49 F. Supp. 2d
1307, 1313 (M.D. Ala. 1999).
Though it is possible Appellant engaged in protected conduct, we need not
decide this as Appellant is unable to establish his termination was retaliatory.
Appellant was terminated by the Augusta Commission. Assuming Appellant was
investigating or acting in furtherance of a fraud report as required for an FCA
claim, Appellant is unable to show that the Commission was aware of this
conduct. Appellant cannot show that the employer, the Commission, could have
reasonably believed Appellant’s actions provided a “distinct possibility” that
7
Appellant would file a False Claims Act suit. See Childree, 92 F.3d at 1146
(holding that protection under § 3730(h) is available when a false claims action is
actually filed or “where the filing of such an action . . . was a ‘distinct
possibility’”); see e.g. Maturi v. McLaughlin Research Corp., 413 F.3d 166, 172-
73 (1st Cir. 2005) (noting that the employer must know of the employee’s
protected conduct to prevail on an FCA claim). Kolb did not have the power alone
to terminate Appellant; instead, the Commission held that ultimate power. For the
Commission to have acted in a retaliatory manner, it follows that they must have
been aware of and acted as a result of Appellant’s allegedly protected conduct.
See Mann, 49 F. Supp. 2d at 1314. Moreover, even if Appellant could show that
Kolb acted in a retaliatory manner, this would be insufficient because ultimate
terminating power rested with the Commission, not Kolb alone. See Matthews v.
Columbia County, 294 F.3d 1294, 1297 (11th Cir. 2002) (holding that in an §
1983 retaliation action “[a]n unconstitutional motive on the part of one member of
a three-member majority is insufficient to impute an unconstitutional motive to the
Commission as a whole.”)
The record reflects that the Commissioners voted to terminate Appellant
based upon Kolb’s recommendation and expressed “lack of confidence” in
Appellant’s ability to continue in his management position effectively. The e-
8
mails sent between Kolb, Wall and Appellant evidence that Appellant was simply
trying to ensure compliance with the HUD regulations not that an FCA action was
a “distinct possibility.” See, e.g. Maturi, 413 F.3d at 173 (“[W]here an employee’s
job responsibilities involve overseeing government billings or payments, his
burden of proving that his employer was on notice that he was engaged in
protected conduct should be heightened. Yet, such an employee can put his
employer on notice ‘by any action which . . . [,regardless of his job duties,] would
put the employer on notice that [FCA] litigation is a reasonable possibility.’”
(quoting Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861,868 (4th
Cir. 1999)). Moreover, assuming this was evidence of protected activity, the
record does not reflect that these e-mails were brought to the full Commission’s
attention. Further, there does not appear to be evidence that the letter from
Appellant’s attorney sent to Wall was brought to the Commission’s attention.
However, even if the letter was given to the Commissioners, that fact would not
provide a reasonable basis from which to conclude that the Commission was on
notice of Appellant’s “protected activity.” The record is void of evidence from
which it could be reasonably inferred that the Commission had notice of the
distinct possibility that Appellant would file a False Claims Act and that his
termination was in retaliation for such conduct.
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IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s well-reasoned
judgment, 365 F. Supp. 2d 1362 (S.D. Ga. 2005), granting Appellees’ Motion for
Summary Judgment.
AFFIRMED.
10