UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GEORGE ZAHODNICK,

Plaintiff-Appellant,

v.

INTERNATIONAL BUSINESS MACHINES

CORPORATION; LOCKHEED MARTIN

FEDERAL SYSTEMS, INCORPORATED, No. 96-2663

Defendants-Appellees,

and

JOHN MEARS; TED GLATT; BRYAN

TROUTMAN,

Parties in Interest.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Catherine C. Blake and Alexander Williams, Jr., District Judges.

(CA-94-3569-CCB)

Argued: June 6, 1997

Decided: December 22, 1997

Before RUSSELL, WIDENER, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Bradley Scott Weiss, LAW OFFICE OF BRADLEY

SCOTT WEISS, Washington, D.C., for Appellant. Ellen Moran
Dwyer, CROWELL & MORING, L.L.P., Washington, D.C., for

Appellees. ON BRIEF: Michael A. Lewis, Washington, D.C., for

Appellant. Caryl L. Flannery, CROWELL & MORING, L.L.P.,

Washington, D.C., for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

George Zahodnick filed suit against his employers, International

Business Machines Corporation ("IBM") and Lockheed Martin Federal Systems, Incorporated,1 alleging (1) retaliation under the False

Claims Act, 31 U.S.C. § 3730(h) (1994); (2) abusive discharge; and

(3) breach of employment contract. Lockheed counterclaimed for

breach of nondisclosure agreements. Zahodnick appeals the district

court order granting IBM and Lockheed summary judgment on all of

Zahodnick's claims and granting Lockheed summary judgment on the

counterclaim. The court also enjoined Zahodnick from disclosing

confidential information to third parties and ordered him to return all

confidential materials to the Defendants. We affirm the district court's

judgment.

Zahodnick worked as a managing engineer at IBM and Federal

Systems Company ("FSC"), a division of IBM, from 1981 to 1994.2

The crux of Zahodnick's claims concern events commencing in September 1989 while he was working at FSC's Gaithersburg, Maryland

facility. At that time, Zahodnick assembled cost information on a proposal to extend IBM's "DSIS" contract with the Defense Intelligence

_________________________________________________________________

1 In 1996, Loral Federal Systems Company, a defendant below, was

acquired by Lockheed Martin and became known as Lockheed Martin

Federal Systems, Inc. We refer to the company as"Lockheed."

2 In 1994, Loral acquired FSC.

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Agency. During the course of his research, Zahodnick discovered that

the "work package number" to which employees working on the project were charging their time was incorrect. The assigned number was

actually associated with the DSIS contract rather than the proposal

effort. Zahodnick reported the mischarging to his supervisor. Zahodnick claims that shortly after he reported this error, he began receiving

negative treatment from the company in the form of unfavorable work

performance evaluations, unsuccessful appeals, and denials of transfer

requests.

In November 1989, Zahodnick received his annual evaluation of

his work performance. Although the review was generally satisfactory, it criticized Zahodnick for his lack of leadership qualities.

Zahodnick pursued an appeal under the company's appeal policy and

succeeded in having the comments deleted after an investigation. In

June 1990, Zahodnick's request for relocation and transfer was

denied, but the next year he received a temporary transfer to California. Zahodnick's 1992 evaluations also criticized his lack of communication and leadership skills. Investigators who reviewed Zahodnick's appeal concluded that the evaluations were fair. Zahodnick

returned to Maryland in May 1992, after rejecting a permanent position in California.

Over the next two years, Zahodnick continued to receive and

unsuccessfully appeal his work evaluations, which he believed did not

accurately reflect his true performance. In early 1994, Zahodnick

accepted a transfer offer to Springfield, Virginia, where he worked for

a short period of time. By late March of 1994, Zahodnick no longer

worked for IBM and Lockheed. Zahodnick maintains the company

terminated his employment. The record of evidence reveals, however,

that Zahodnick voluntarily resigned, and that he brought this suit

against the company under the "whistle blower" provision of the False

Claims Act only after learning that his voluntary resignation disqualified him from receiving an enhanced separation package and unemployment compensation benefits.

Summary judgment is appropriate when there is no genuine issue

of material fact and it appears that the moving party is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(c); Adickes v. S.H.

Kress & Co., 398 U.S. 144, 157 (1970). On summary judgment, all

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evidence must be viewed in the light most favorable to the party

opposing the motion. See Matsushita Elec. Indus. v. Zenith Radio

Corp., 475 U.S. 574, 587-88 (1986). Summary judgments are

reviewed de novo on appeal. See Higgins v. E.I. DuPont De Nemours

& Co., 863 F.2d 1162, 1166-67 (4th Cir. 1988).

The "whistleblower" provision of the False Claims Act prevents the

harassment, retaliation, or threatening of employees who assist in or

bring qui tam actions. The statute provides:

Any employee who is discharged, demoted, suspended,

threatened, harassed, or in any other manner discriminated

against in the terms and conditions of 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 . . . .

31 U.S.C. § 3730(h). Thus, an employee must prove that (1) he took

acts in furtherance of a qui tam suit; (2) his employer knew of these

acts; and (3) his employer discharged him as a result of these acts. See

X Corp. v. Doe, 816 F. Supp. 1086, 1095 (E.D. Va. 1993).

Here, there is no evidence that Zahodnick initiated, testified for, or

assisted in the filing of a qui tam action during his employment with

IBM and Lockheed. In fact, the record discloses that Zahodnick

merely informed a supervisor of the problem and sought confirmation

that a correction was made; he never informed anyone that he was

pursuing a qui tam action. Simply reporting his concern of a

mischarging to the government to his supervisor does not suffice to

establish that Zahodnick was acting "in furtherance of" a qui tam

action. See Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948,

951 (5th Cir. 1994).

Furthermore, there is no evidence that IBM and Lockheed were

aware of Zahodnick's alleged protected activity. Without evidence of

any knowledge on the part of IBM and Lockheed, Zahodnick cannot

establish the necessary causal connection between the alleged pro-

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tected activity and Zahodnick's termination of employment four years

later. Accordingly, we affirm the district court's grant of summary

judgment against Zahodnick on this claim.

We also find that the district court properly granted summary judgment on the abusive discharge claim. Maryland courts recognize a

cause of action for abusive discharge available to employees who

have been fired in contravention of public policy. See Adler v. American Standard Corp., 432 A.2d 464, 473 (Md. 1981). The action

applies when an employee has refused to act in an unlawful manner,

attempted to perform a statutorily prescribed duty, exercised a statutory right or privilege, or performed an important public function. See

Makovi v. Sherwin-Williams Co., 561 A.2d 179, 182 (Md. 1989). The

remedy, however, is unavailable when the "public policy sought to be

vindicated by the tort" is expressed in a "statute which carries its own

remedy for vindicating that public policy." Chappell v. Southern Md.

Hosp., Inc., 578 A.2d 766, 770 (Md. 1990). We conclude that

§ 3730(h) adequately covers Zahodnick's claim. As the district court

noted, even assuming Zahodnick could pursue an abusive discharge

claim, he failed to produce any evidence suggesting a causal relationship between his report of the mischarging error and his termination

four years later. Accordingly, the district court properly granted

Defendants summary judgment on this claim.

With respect to Zahodnick's breach of contract claim, employment

is at-will in Maryland unless the employee can show that the contract

has "been so modified by the personnel policy statement as to remove

it from the full strictures of the common-law rule." Staggs v. Blue

Cross of Md., Inc., 486 A.2d 798, 801 (Md. App. 1985). An employer

may include a clear disclaimer, however, to avoid contractual liability

for a personnel policy. See Bagwell v. Peninsula Reg'l Med. Ctr., 665

A.2d 297, 309 (Md. App. 1995).

In 1993 Defendants provided employees with a handbook bearing

a disclaimer. It stated that IBM and FSC "reserve[d] the right to

change all their benefits, separation plans, programs, practices, policies and rules at any time." It further stated that "[t]he employment

relationship with IBM and Federal Systems Company is at will. This

means that the relationship can be ended at any time for any reason

by the employee or by IBM or the Federal Systems Company."

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Because this disclaimer is unambiguous, we find the breach of contract claim without merit.

As to Lockheed's counterclaim for breach of confidentiality, the

record discloses that Zahodnick signed two nondisclosure agreements.

In these agreements, Zahodnick agreed not to disclose confidential

information to anyone outside of IBM and to return all IBM property

to IBM when he left IBM's employment. Zahodnick retained confidential materials belonging to IBM after termination of his employment and forwarded those documents to his counsel without IBM's

consent. Under such circumstances, the district court did not err either

in enjoining Zahodnick from disclosing Lockheed's confidential

materials to third parties or in ordering Zahodnick to return all confidential materials to Lockheed. Accordingly, we affirm the district

court's order.

AFFIRMED

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