Virginia Lawyers Weekly VA Lawyers Weekly
A whistleblower’s retaliatory termination suit against her former employer has survived dismissal, but the judge limited her allegations to those presented in her complaint to the Office of the Inspector General, or OIG.
The veterinarian plaintiff alleged that her government contractor employer terminated her in retaliation for her formal complaint that the company mistreated dogs, defrauded the government, and abused its hiring and firing powers.
The employer sought to strike the plaintiff’s allegations, arguing that she had not exhausted her administrative remedies.
But Judge Thomas J. Cullen of the Western District of Virginia concluded that all the plaintiff’s “present complaint does is support the broad allegations in her Agency Filing and OIG Complaint with specific examples of the general types of misconduct alleged.”
The April 25 decision is Iovino v. Michael Stapleton Associates, Ltd. d/b/a MSA Security, Inc. (VLW 022-3-176).
‘Model employee’
Michael Stapleton Associates, or MSA, is a security company under contract with the Department of State to train explosive detection dogs for anti-terror programs run by foreign countries and the U.S. abroad. MSA trains and cares for the dogs at a center in Winchester, Virginia.
Dr. Karen Iovino, a licensed veterinarian, was hired in October 2015 by MSA on a part-time basis as “Veterinarian in Charge” to help the onsite veterinary hospital get its operating license. Iovino reported to program manager Zane Roberts.
Iovino and Roberts shared concerns about the care the dogs received abroad, and Roberts repeatedly expressed those concerns to his supervisors. MSA eventually replaced Roberts with Michael Ratcliff during Iovino’s tenure.
According to the record, MSA considered Iovino to be a model employee and in February 2017 asked her to become a full-time employee once her part-time contract expired that fall. After reaching agreement on the terms, Iovino alleged that Ratcliff told her that everyone at the center “loved working with her.”
Fraying relationship
In April 2016, Iovino began sending herself emails to document three types of concern she had about MSA and the center.
First, she was concerned the dogs were overworked, poorly sheltered and at risk of malnourishment and death. Ratcliff dismissed concerns she voiced after learning of conditions the dogs endured in Jordan in June 2017.
Next, Iovino was “uncomfortable” with MSA billing practices. She described being forced to use unofficial paid time off instead of working overtime. She said she was not paid overtime, even though MSA billed it to the government. Iovino also alleged MSA billed the government for full workdays when several employees routinely left early.
Finally, Iovino “bristled” at staffing decisions, specifically the hiring of someone she believed was as an alcoholic, mediocre vet tech, rather than her preferred candidate. In 2019, the Virginia Board of Veterinary Medicine indefinitely suspended this vet tech’s license for alcoholism.
Iovino’s staffing concerns also related to MSA’s treatment of Roberts, who was effectively demoted by Ratcliff’s hire. Due to his continued criticism of MSA’s dog care, Roberts’ responsibilities were reduced and he was eventually suspended. He left the center in October 2017.
On Jan. 6, 2017, Iovino filed an OIG complaint about the billing fraud, canine safety and personnel decisions. She declined to proceed anonymously.
The retaliation
Eight days later, Ratcliff informed Iovino that MSA had decided to create a new, full-time vet position, rather than convert her part-time contract to full-time, as they had discussed earlier that year. This meant she would need to reapply for her job.
On Aug. 4, 2017, MSA suspended Iovino with pay because it believed she was leaking confidential information to the media. When her contract expired two weeks later, MSA hired someone else to fill her position.
Iovino filed another OIG complaint, claiming she was terminated in retaliation for the original complaint. The OIG found in her favor.
MSA appealed, and the Department of State reopened the proceedings. Both sides supplemented the record, with Iovino explicitly framing the relevant issue to be whether she was fired in retaliation for making protected disclosures to the OIG in her original complaint.
The Department of State reversed its earlier determination and concluded that MSA had done nothing wrong. Iovino then filed suit in federal court.
Motion to strike
MSA moved to dismiss. Cullen decided to construe that motion as a motion to strike allegations pleaded by Iovino in her retaliation claim.
Although Iovino alleged retaliation in both forums, MSA argued her federal complaint made allegations which were not reasonably related to her agency filing and therefore she had not exhausted her administrative remedies.
Cullen said that Iovino had exhausted her remedies to the extent that her claims advanced theories of recovery that “a reasonable investigation of [her OIG complaint] would have uncovered.”
The judge then looked at the plaintiff’s allegations regarding the nature of MSA’s government contract, its knowledge of her OIG complaint, statements she made on the record during the Department of State process to substantiate her claims, and events from her tenure at MSA offered to contextualize her claims, and declined to strike any of them.
“Although Iovino’s complaint includes specifics omitted from her Agency Filing, that document, as is typical, discussed the same alleged misconduct in broader terms,” Cullen said.
Further, the judge said he declined to strike the plaintiff’s allegations for two reasons.
“First … an investigation into the specific conduct Iovino claimed she witnessed at MSA would likely have followed from a reasonable administrative investigation into her Agency Filing,” Cullen wrote. “Second … [t]here are several gaps in the current record before the court, when compared to what the agency reviewed. … The court is reluctant to strike factual allegations that discovery might reveal DoS uncovered and MSA knew about.”
However, Cullen said that a final group of allegations, which presented alternative theories by which MSA retaliated against the plaintiff for protected disclosures which were not part of the OIG complaint, would be stricken.
