DISCUSSION

False Claims Act

In pertinent part, the FCA prohibits individuals from knowingly causing false or
fraudulent claims to be paid by the federal government. 31 U.S.C. § 3729(a). Either
the Attorney General or a private party can investigate and bring suit for violations of
the FCA. 31 U.S.C. § 3730(a), (b). However, a private party is limited to bringing an
action on behalf of the government, called a qui tam action, and must follow certain
statutory procedures in pursuing the action. First, the action must be brought in the
name of the government. 31 U.S.C. § 3730(b)(1). Second, the party must serve the
government with the complaint and disclose all material evidence and information in
his or her possession. 31 U.S.C. § 3730(b)(2). Upon receipt of these materials, the
government can elect to intervene and take over the primary responsibility for pursuing
the action. Id. The private party may not conduct the action unless the government
decides not to intervene. 31 U.S.C. § 3730(c)(3). The FCA also contains protections
in a “whistleblower provision” for employees whose employers retaliate against them
for taking lawful action under its provisions. 31 U.S.C. § 3730(h); Zahodnick v. IBM
Corp., 135 F.3d 911, 914 (4th Cir. 1997).

Count I of Khan’s complaint alleges that CHA, through Warshall, violated the

FCA by eliminating much of its engineering department and awarding contracts to

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Neither party disputes that there were serious problems with the execution of the Fisher
project. Khan himself characterized the workmanship as being of poor quality on at
least two occasions. Def’s. Exh. F. Furthermore, neither party disputes that MRE
charged CHA for $29,000 of unapproved work on the project. To show that he was in
fact living up to CHA’s expectations, Khan points to ratings given him on previous
performance evaluations and repeatedly asserts that the ultimate responsibility for
overseeing the project and ensuring that it was running smoothly and properly lay with
Warshall. Pl.’s Resp. to Def.’s Stmt. of Mat. Facts, [J 22, 26, 31. These arguments are
unpersuasive. The previous performance evaluations are of limited value to the issues
in a case such as this, which must focus on the quality of Khan’s performance at the
time of his discharge, not throughout his employ with CHA. Fortier v. Ameritech, 161
F.3d 1106, 1113, 1114 (7th Cir. 1998). The undisputed evidence demonstrates that
Khan did not perform his duties, regardless of what Warshall’s duties were. Moreover,
work on a project that Khan was supervising was poorly done, and the CHA was
charged for work and materials they did not request. Khan offers several reasons why
he did not fulfill the duties of his position, but our task is to determine whether Khan
was doing his job. The undisputed evidence shows that he was not. Our inquiry
therefore ceases; the whys and wherefores of substandard job performance are the

province ofhuman resource departments, not courts of law. See, e.g., Millbrook v. IBP.

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party, but such an amendment is not appropriate at this late stage of the litigation—more
than a year after the complaint was filed, well after the close of discovery, and after a

summary judgment motion has been fully briefed. See, e.g., Bethany Pharmacal Co.

Inc. v. QVC, Inc., 241 F.3d 854, (7th Cir. 2001). We conclude that Khan has not
complied with the prerequisites for a qui tam FCA claim, and CHA is therefore entitled
to summary judgment of Count I.

Count II alleges that CHA fired Khan in retaliation for the efforts he claims he
took in exposing unlawful activity by Warshall. To prove actionable retaliation under
§ 3730(h), a plaintiff must show that he or she engaged in activity protected by the
statute, the employer knew of the employee’s protected activity, and the employer took

action against the employee because of the protected activity. Moore v. Calif. Inst. of

Tech. Jet Propulsion Laboratory, 275 F.3d 838, 845 (9th Cir. 2002). Khan claims that

he contacted members of the press about problems with CHA’s renovation of the Robert
Taylor Homes, another public housing facility. He theorizes that Warshall learned of
these contacts and that his displeasure with Khan’s activity was the true reason why
Khan’s employment was terminated.

There is some question as to whether Khan can satisfy the first element of his
retaliation claim. His testimony with regard to the details of his contact with the press

suffers from fundamental vagueness and inconsistencies, and there is no indication from

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acquaintances rather than going through a bidding process.' Although the complaint
does not contain specific sections of the FCA, the content of his later submissions
indicates that, in addition to his underlying claim that CHA violated § 3729, Khan
alleges retaliation in violation of § 3730(h).

As a private party, Khan must bring his FCA claim gui tam or not at all.
Erickson ex rel. U.S. v. American Institute of Biological Sciences, 716 F. Supp. 908,
911 (E.D. Va. 1989). CHA argues that the FCA claim cannot proceed because Khan
has not followed the mandatory steps specified in the statute for a qui tam action. 31
U.S.C. § 3730(b)(1). Specifically, Khan brings the action in his own name, rather than
in the name of the government; he did not serve the complaint and his evidence upon
the government; and he did not allow them to decide whether to intervene in the
prosecution of the claim. Khan cannot maintain a qui tam action until the government
declines to take over the case, an opportunity Khan never afforded them, even though

the statute clearly requires him to do so. Erickson, 716 F. Supp. at 911 (dismissing

complaint when qui tam plaintiff did not comply with statutory procedures). To cure

this deficiency, Khan offers to amend the complaint to add the state of Illinois as a

‘Because CHA is under the control of the Department of Housing and Urban
Development, Khan’s allegations fall within the scope of the FCA. Inspector General
v. Banner Plumbing Supply, 34 F. Supp. 2d 682, 683 (N.D. Ill. 1998). See also U.S.
v Killough, 625 F. Supp. 1399, 1402 (M.D. Ala. 1986)

-~5-


employees not of the same class more favorably. Brummett v. Lee Enterprises, Inc.,

284 F.3d 742, 744 (7th Cir. 2002). If Khan fails to make an adequate showing of any
of these elements, CHA is entitled to summary judgment on Count JI. Hilt-Dyson v.
City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002).

CHA takes issue with the sufficiency of Khan’s ability to establish the second
and fourth elements, contending that Khan did not meet legitimate expectations of
performance on the Fisher project and noting that he has not identified any similarly
situated non-Indian employees who were treated more favorably than he. The lack of
a proper showing on the fourth element is immediately apparent; Khan has given no
examples of non-Indian employees who received more favorable treatment. Without
a point of comparison, we can perform no meaningful assessment of the propriety of
CHA’s conduct toward Khan. Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158 (7th
Cir. 1996).

Even if Khan had been able to show more favorable treatment of another
employee, his showing on the second element also falls short of the mark. As Senior
Project Administrator for the Fisher Apartments window replacement, Khan was
responsible for ensuring that the Fisher project was conducted efficiently and completed
in a timely manner. He was also to supervise and assess the progress of the

construction, as well as handling the administration of pay requests and the like.

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Joe

Minute Ortier Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Charles P. Kocoras Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C976 DATE 5/2/2002
CASE Khan vs. Chicago Housing Authority
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) im] Answer brief to motion due. . Reply to answer brief due

(4) Oo Ruling/Hearingon___ssetfor__—_at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on : setfor at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on_____setfor_ at
(7) QO Trial{set for/re-set for]on______—at

(8) a] (Bench/Jury trial] [Hearing] held/continued to at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) © General Rule 21 OO FRCP41(a)(1) O FRCP41(a)(2).

do) =o [Other docket entry] Ruling held. ENTER MEMORANDUM OPINION: Defendant’s motion
(Doc 21-1) for summary judgment is granted. All other pending motions are moot.

(11) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document
umber

No notices required.
manber of potices

Notices mailed by judge’s staff.
MAY 9 3. 2002

Notified counsel by telephone.

ov | Docketing to mail notices.

VY | Mail AO 450 form.
Copy to ig enagistete judge.

Uy"

courtroom
SCT deputy's
initials

“Date/time received in
centrat Clerk’s Office mailing deputy initiats



Inc., 280 F.3d 1169, 1181 (7th Cir. 2002). Because Khan cannot satisfy each of the
elements of his prima facie case, CHA is entitled to summary judgment on Count III as

well.
CONCLUSION

Based on the foregoing analysis, the CHA’s motion for summary judgment is

granted.

Charles P. Kocoras
United States District Judge

Dated: May 2, 2002

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the record that he instituted this contact in furtherance of his later FCA claim. (PI.’s
Dep. pp. 329-30). In any event, it is clear from Khan’s deposition testimony that he
cannot make out the second element, that CHA knew of his contact with members of
the press. He told no one, and his only proof that Warshall had an inkling consists of
unfounded suspicions. (P].’s Dep. pp. 331, 334). Without proof that CHA knew of
Khan’s activity, assuming that he engaged in it, Khan cannot establish that CHA
violated § 3730(h). Zahodnick, 135 F.3d at 914 (employer could not violate
whistleblower provision when it did not know of employee’s FCA-related activities);
US. ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir. 1996)
(same). Accordingly, CHA is entitled to summary judgment of Count II. ,
Title VIL

Count I of Khan’s complaint contends that his employment was terminated not
only because of his actions with regard to the Taylor project but also because of his
race. Khan offers no direct evidence of discrimination on the part of CHA, so he must
make his case with indirect evidence using the methodology first spelled out in
McDonnell-Douglas v. Green, 93 S.Ct. 1817, 1824 (1973). To make out a prima facie
case of employment discrimination on the basis of race, Khan must show (1)
membership in a protected class; (2) his work performance satisfied CHA’s legitimate

expectations; (3) an adverse employment action; and (4) CHA treated similarly situated

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LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most
favorable to the nonmoving party, reveals that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). The moving party bears the initial burden of showing that no genuine
issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct.
2548 (1986). The burden then shifts to the nonmoving party to show through specific
evidence that a triable issue of fact remains on issues on which the nonmovant bears
the burden of proof at trial. Id. The nonmovant may not rest upon mere allegations in
the pleadings or upon conclusory statements in affidavits; it must go beyond the
pleadings and support its contentions with proper documentary evidence. Id. The
court considers the record as a whole and draws all reasonable inferences in the light

most favorable to the party opposing the motion. Bay v. Cassens Transport Co., 212

F.3d 969, 972 (7th Cir. 2000). A genuine issue of material fact exists when "the
evidence is such that a reasonable jury could return a verdict for the nonmoving party. "

Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). With these principles in mind, we consider

CHA’s motion.


conditioners. By October, residents had begun to complain about problems with the
new windows, including rain seepage, bowing, and gaps around the air conditioning
units. The following month, the building was cited for 15 violations of the Chicago
Building Code.

In February 2000, although the construction was not complete and the work that
had been done was of substandard quality, Khan signed off on the final payment to
MRE Construction. That same month, CHA received a request from MRE for an
additional $29,000 for work that the company had performed that CHA had not
approved. Warshall and Khan met with MRE to discuss the additional $29,000 as well
as CHA’s dissatisfaction with the work that had been performed. The minutes of the
meeting note that the final pay request (aside from the $29,000) had been approved and
processed. April saw a flurry of letters and emails among Warshall, Khan, and MRE,
and in May, Warshall recommended that Khan’s employment be terminated. On
May 23, CHA followed Warshall’s recommendation.

In February 2001, Khan filed suit, alleging violations of the False Claims Act
(“FCA”), 31 U.S.C. §§ 3729-31, and Title VII. CHA now moves for summary

judgment of all of Khan’s claims.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MUSHTAQUE A.KHAN, )
)

Plaintiff, )

)

vs. ) 01 C976

)

CHICAGO HOUSING AUTHORITY, )
)

Defendant. )

WAY ~ 3 2099
MEMORANDUM OPINION .

CHARLES P. KOCORAS, District Judge:

This matter comes before the court on the motion for summary judgment of
Defendant Chicago Housing Authority. For the reasons set forth below, the motion is
granted.

BACKGROUND

Plaintiff Mushtaque Khan (“Khan”) is a former employee of Defendant Chicago
Housing Authority (“CHA”). In early 1999, Khan was assigned to work as Senior
Project Administrator for a window replacement project on a CHA building called the
Fisher Apartments (“the Fisher project”). Damian Warshall (““Warshall”) was Khan’s
supervisor for this project. The work for the Fisher project was performed by an outside
contractor, MRE Construction. The project began in early 1999, with a budget of

approximately $600,000. It entailed installation of windows and window-unit air

mal