retired police officer hired to handle security for the north texas job course in earth who amazingly thought that it was his duty to see to it that federal and state law was to be complied with and repeatedly repeatedly complained about violations of the department of labor's zero tolerance policy repeatedly informed the local police department of drug sales drug usage student rapes all sorts of violence occurring on campus and was punished retaliated against as a result this is  a retaliation claim under the false claims act the courts have made it clear that there are essentially three elements of that cause of action that are complaint needs to address number one did the employee engage in protected activity number two was the defendant aware of his actions and number three was there retaliate tory action that took place as a result or that was caused by the awareness of his engaging in protected activities we have delineated a number of protected activities that did occur he observed violations of the drug laws reported these to the police department and then his supervisor chastised him for it and told him to stop when he wouldn't stop he was threatened with fir investigated rapes that occurred on the job corps campus and as a result of that the responsibility for investigating those types of things was taken from him  affected the motion retaliatory action and given to the e e o c coordinator the strange to take that away from the security officer and move it to someone in charge  he noted that there were a number of other violations of work during i don't think anybody is going to doubt that he was reporting violations the police and i don't i doubt that the other side will assert that this was not you know reports of illegal conduct or arguably protected activity yes well so it's the other parts of your argument that are more in dispute here there are actually there are arguments on the part of the defendant that well oh these are two separate corporations they're just totally separate they all are that's the problem isn't  if they're not separate independent of you look at the sub contractor and very with the very st thing stated in it is that these two companies work together to jointly obtain the contract is they recognize and agree that they are to work together in performing the contract of dell just one of these things to be very blunt about it where the contract was ordered to let to a woman on business and she couldn't handle it on our own and she had to subcontract to his employer not so much that it was a woman on business but because it was a new business that had no experience  floor had massive experience in managing federal contracts and male or female to have a company with that kind of background working with you jointly submitting it is what made the difference and and they recognize that the key here is that mr jamieson was hired as a security officer over the entire campus and his his supervisor initially was with diligence and at some later time and we're not sure when moved over to career opportunities the main contractor however this and this is critical we have alleged in our complaint that these were operated as one you didn't walk into the job corps center and ok here's a section for c e o i here's a section for belgian there's one an employee of career opportunities and there were but the key that i want to impart and current work for career opportunities type work for career opportunities martin started off working for n was responsible for for security but you had the the overall company supervise again until we get him what he could and couldn't do of and  result of that if you're going to try to impute knowledge to to elgin floor not only do you look for actual knowledge which i believe can be demonstrated by the fact that there were weekly management meetings which we've alleged that he was chastised in these weekly management meetings and then he was removed from the weekly management meetings as part of the brutali acts after he kept insisting on trying to comply with the deal well regulations this court road in sharpers the city of houston that you can not only look to actual knowledge would you could look to constructive knowledge if the harassment i'm reading from sharp versus city of houston cited in the brief if the harassment complaint is so open and pervasive that the employer should have known of it had it but opened its corporate eyes it is unreasonable not to have done so and been there is constructive action it cannot be stated reasonably in believably that the two were they take i don't recall specifically either i can look that up and respond in rebuttal but they were attended by the people that were the head of all the different departments and mr armor on the center director was the one running it ultimately mr jamieson was fired and he was fired by our appeal she testified beverly sharpe testified that mr jamieson was fired after we conducted an investigation and we s subpoena that investigators report she testified that she was advised by the investigator certain things and that those things were the basis of the terminations we believe that that was  alleged retaliation as a result of his protected activity and here was probably the smoking gun there was no mention of involvement of counsel the false claims act case and and so we presented her testimony in our briefing and in our motion to the district court and it was the discovery was denied without prejudice which i believe that i can't speak for the court but i believe it meant that well you go to the discovery later on so there was clearly knowledge on the part of the employer and we have recited numerous retaliate tory acts he wasn't just fired ultimately although that was very retail and there was an extreme act of retaliation he had his responsibilities reduced employees were instructed not to report information about student missing misbehavior to as you probably know the case law is pretty exacting about what constitutes an actionable employment adverse employment situation so the level of statutes as under title seven a retaliatory act must be materially adverse which means that well might have dissuaded a reasonable worker from engaging in protected activity and in that case there was a transfer pending against career opportunities in the district court oh you do yes so what's the basis of that well it's the same activity that consolidated with this one you know o me ask you to advise as one thing when you get up in rebuttal and that is would we have to make new law here to say that your allegations are sufficient to proceed against floor actual knowledge we're asking for a reasonable inference to be drawn that the two companies working together knew exactly what each one what the other one was doing and in goods always versus together we have cleared as the c e o i was supervising and instructing and threatening mr jamieson we have pled that he was ultimately fired but leading up to that firing multiple retaliatory  dismiss the complaint because after three previous attempts mr jamieson did not allege facts from which it could plausibly be demonstrated that any decision maker at fluor was aware that jamieson having gauged it activities protected by the false claims act number two and there was some discussion about this from my colleague a few minutes ago although he tempted to bootstrap he claim allege that any of those individuals were aware of false claim act protected activity that served some discussion about not enforcing the law there were some allegations concerning not enforcing the memorandum of understanding with the bikini police department but nothing to suggest to put those three individuals on notice that the false claims act that is a false admission of fraudulent claims to the government that that was the nature of this complaint but in any of that he could not show that the knowledge of kuyt martin and amaranth could properly be imputed to my client floor and when we talk about who are your honour's where it's interchangeable with belgian and floor of for this purpose  as the court's last question indicated to reverse this decision you would have to make new law their theory is that because of a sub contracting agreement the knowledge of the subordinate isn't  that knowledge of the superior is imputed to the subordinate a sort of reverse the prime contractor in the sub is well in the contract it specifies that the prime contractor is career opportunities in my client was a sub contractor and provided the delegation of certain functions at the set of the functions included security that is the belgian was responsible and mr jamieson as the head of security was responsible for ensuring that the law was being followed and in security there the contract makes clear as most sub contracts that the parties were independent contractors and neither was an agent of the other and that each was responsible for their own employment decisions so the notion that an employee of career opportunities whatever no knowledge they might have would be necessarily imputed to floor would require the court to essentially take the position that a principal's knowledge can be transmitted to a subordinate there is no law to floor for had to know what was going on well your honor to two things about that number one of this isn't a situation where mr jamieson was a stranger to the process he was actually according to their allegation in the room and would be able to identify what floor employees were there as the court's question to my colleague noted there's not a single identifiable floor employee in the four corners of the actual allegations of the complaint the only reference to her floor employee is in the exhibits and that is the actual terminations letter just love it who terminate his employment but there's nothing to suggest that an identifiable f employee was aware when mr jamieson made whatever complaints he made here's the other thing the actual complaints that mr jamieson made would not have put floure on notice that he was engaging in f c a protected activity we cited the sealed appellant vs sealed appellee case which is directly on point there we had a compliance officer whose job it was to make sure that the company was complying with the requirements which included patient signatures the appeal of the mad case complaining to his employer you're not submitting signed patient signatures and as a result you're sending fraudulent claims to the government for reimbursement and this court hel she fired the there's nothing in the the record to suggest that but we happen to know that she was hired by career opportunities there's some suggestion in the pleadings that ms kyte had some relationship w martin and that there was a hand in glove relationship between that she was not fired at no your honor and there's no there's no record i misread something there's nothing in the record to suggest that but in terms of her employment  is the center director who's the head of the center mario martin is deputy center director for the complaint that mr jamieson filed on january st two thousand and fourteen which is also attached to the complaint at record one th seven so so where far down the road miss marden had become an employee of c e o i and it's it would strain the law you would have to ignore well settled law to suggest that miss martin's knowledge can imputed to floor without some allegation that margaret communicated that to somebody if war or that she transmitted simply the fact that mr jamieson had these conversations with miss merton would not put my client on notice of anything here's here's the bottom line here the plate of his has had a essentially a studied ignorance of the identity of any of the parties in the case mr jamieson has control of those facts he was at the project he knew who was there he knew who he interacted with you knew he was talking to and when he talked to mr martin he knew that mr martin was an employee at c o y but the complaint says nothing about that he also knows who fired him and the complaint says nothing about that either other than the attachment this is a situation where the plaintive head was on notice at a very early point in the case we are st motion to dismiss our nd motion to dismiss the core a judge boils decision all said look you may or may not have the false claims retaliation protected activity but you've not tied any of those activities or any of those statements of martin or of point of what he was saying was that the job training center was ignoring that when people come to that center supposedly to get their lives in order that they can't abuse drugs they can trade drugs and alcohol on the premises and all center was ignoring those obviously reasonable restrictions and certainly we don't dispute that those allegations are clearly stated in the complaint the problem is really twofold how do you get from you're not following the law you're not arresting miscreants people are doing drugs and they really ought to be a prison because the memorandum of understanding that we have with the police department says there's nothing to tie any of those activities to false claims to the government that is there's no allegation that is it seems to me it would be pretty material to the government to know if a job training center is is housing felons or housing lawbreakers instead of violations of the conditions of the contract don't necessarily understand that i'm just telling you this seems to me on its face to be the escobar standard and i believe his false claims act cases and i have neglected to check into that decision before i it was not eliminated on that basis well the false claims act case the jamison versus belge case which this court affirmed a motion to dismiss was a women aged on the very point that i'm making here which is it may or may not be protected activity but how do you get through or several solutions into the business he might have a claim of written allegation against he might have a smoking gun with maria martin he might have a smoking gun with with mrs kight but none of those are smoking with floor federal solutions which is my quiet and that's the the the gaping hole in his allegations and it is clear that mr jamieson as a person on those premises luck i'm not trying to paint mr jameson as a scofflaw i am painting him as a person who has personal knowledge of who's who who is employed by who and who was acting on whose behalf in terms of people that he was interacting with and there's nothing in the four corners of complaint that identifies a single identifiable floor employee who is supposedly responding at superior way responsible for any action that was taken against him other than the termination that is exhibit seven is a terminations letter from beverly loved it and by the way just to correct the record mrs lovett was deposition was taken in this case in the retaliation case of discovery was conducted initial disclosures the parties had a fair amount of discovery prior to the filing of the th amendment complain so it's not like the typical twelve the sex where this court has been very clear most twelve b six cases are decided at the onset of the case with zero discovery this is a case where the point of had the opportunity and the record is clear he took the deposition  decision maker and had the opera opportunity to identify who knew what when where out how is mr martin connected to the process who's really running things what's the nature of the sub contract and is this really a a farce that they're all one entity there's no allegations to make any of that stick all we have a sub contract agreement and if you look at the four corners of the sub contract agreement i standard sub contract agreement it is not a agreement where it says floor you're going to be held responsible for anything bad career opportunity doesn't act it says the opposite it's not a matter of pleading but even if it were a pass through you still have to get by the fact that they are two separate legal entities that are separately operated and the agents of one operator namely the employees of floor their knowledge if any is  directly imputed to career opportunities and vice versa how adaptable with this theory of separate control of the two the typical false claims case which is made against a defense contractor that we see made against a defense contractor who could subcontract out main and let's say design and maintenance of the aircraft engine from the tail assembly from the computer energies and so on and therefore split up all the responsibility so no there couldn't be a practical false claims case well there could be a practical false claims case and in just a sense if you're talking about the component each component is being provided as part of the sub contract and they're making their way up the line the actual contractor then goes to the government and says this plane is a ok i'm giving it an airworthiness certificate or whatever it is people that pick airplanes tell the government that is they're making a representation as a condition for getting paid and there's subsidiary representations that are made up the line in most of those cases you're usually holding the contractor liable and that's why we have a false claims act case in federal district  the actual the contractor that they believe made false representations to the government is still there in the key tam case the problem with this court in the jamison versus belgian case and the problem here is there's nothing to tie the nexus to the responsibility of my client namely through or federal solutions formally known as delta there's not a single identifiable person there's not an allegation if there was a meeting in which he made a fateful claim it's not there there's no allegation as to what he said and there's no allegation as to who was there when he said it such that it would have put my client on knowledge on knowledge at the time it made the decision and as a matter of correction this court has made clear that indeed we in the jefferson county case i believe it is that they made clear that actual decision maker knowledge not constructive decision maker now which is necessary robinson versus jackson state which we cited in our brief that it's not enough to say that there's general corporate knowledge of activities that might  we want you to actually tie it to the decision maker now here mister jamieson had access to the decision maker this is a unique twelve b six case this is one even though twamley and it ball says we are opening the doors to discovery for a person armed only with legal conclusions this is a case where the discord actually opened up the the discovery and allowed the plaintiff to take discovery of the decision maker in a raga tori's documents you name it the for the twelve b i thought he said that discovery took place in the false claims case and that's the record that i want to correct there the discovery was taken in this case and the attachment in the the record actually has the style of this case as the as the  decision making and so any of the difficulties that a plate of might claim in being able to draw a straight line between his protected activity and the decision maker in a typical twelve  case in point of isn't even allowed to have that kind of discovery the decision is made can you connect the dots with some tax allow a geishas as opposed to of legal conclusions this is a case where it access to the actual decision maker and there's nothing in this record because if there people miss miss martin miss kyte and mr ammar all of those folks there's not a single allegation that at the time they did any of the things that they are being tarred with that at that time they were an employee or agent of fluor federal solutions at all times they were employees of c e o i would respect to the motion to compel we've argued that the plate of his waived his his appeal on that issue that there's not any briefing or anything to this court has made clear countless times most twelve the sex decisions are made without the benefit of discovery because in this case it's not like the typical case say you know what i think you're repeating yourself and with that my notice my case i reviewed the complaint there is not an allegation of the names of everybody at the weekly management meetings instead it says senior management positions much was said mr jamieson in paragraph twenty four says all of this was a specific and intentional violation of the p r age to deal statutes and deal of regulations plaintiff informed martin did this was illegal in a violation of the regulations and that failure to report these incidents fully and faithfully what amount to committing fraud against the government martin made it clear that she was not going to comply with plaintiff's recommendations and concerns i think that's pretty specific now the question that the argument that i kept hearing over and over and over again was well you haven't pinned the anything on the diligence please look at exhibit seven fulfill all of my job responsibilities did to the direct interference of mr am iran and mrs martin mrs martin and mr armor and have directed my immediate supervisor mr eddie williams social development director of the north texas job corps center to inform me that i would no longer conduct any investigations are complete any reports relating to security incidents that occur on the job corps center under this it clear that the social director is one of the responsibilities assigned to diljit so mr ed it williams the direct supervisor of mr jamieson was told by the center director and by maria martin shut this guy down and they did and he complained that he was unable to perform his job duties as a result of that and you early love it wasn't even on the campus but she was receiving information and instructions from these people argument that there is no allegation that the subcontract was a passthrough well the sub contract itself says that a certain percentage of the funds collected would be passed on would be paid to to divulge and the subcontractor that's in the sub contract itself what about failure to report with the zero tolerance policy that is the job that the dio will has imposed with zero tolerance policy if i report that i have x number of students on campus for which  paid and i omit reporting these these incidents then i am by omission committing fraud against the government the zero tolerance policy is the alleged how that was being violated and mrs martin knew that it was being violated and she was told so by mr jamieson and she basically told him to forget about it of the  the action that was taken by the government as a result of these of the reporting and all that they did investigate and they did terminate the job corps contract that c o i what if