HUGHES, SR.

v.

CENTURUM, INC.

Defendant Centurum, Inc. (“Centurum”) moves to dismiss Plaintiff Jeffrey Hughes, Sr.’s amended complaint. (Doc. 22.) Upon careful review, the motion is GRANTED in part, and Mr. Hughes’s amended complaint is DISMISSED with leave to amend.

BACKGROUND

Centurum is a private company that “delivers end-to-end life cycle solutions for Defense, Homeland Security, and other Federal Agencies.” (Doc. 20 ¶ 6.)¹ Mr. Hughes worked for Centurum for thirty-sixty years until his termination in

Contract Management Agency [(“DCMA”)] published guidance and regulations.” (Id. ¶ 17.) He further alleges that Centurum’s CEO “devised a plan to fraudulently misrepresent to the government that the $3,193,218 was not made forgivable and/or was spent on items not covered by [Centurum’s] government contracts in order to try to illegally retain $3,193,218 that was legally required to be returned to the government by representing it was a non-refundable grant under the Federal

Acquisition Regulations,” and “issued a directive that no one notify [the DCMA] of the loan forgiveness.” (Id. ¶¶ 19–20.) As Centurum’s CFO, Mr. Hughes was “tasked by the CEO to execute the fraud on the government, but flatly refused to do so.” (Id. ¶ 20.) Mr. Hughes told the CEO that he would not lie on a DCAA report due on August 9, 2021, and that he would file a report that complied with applicable laws. (Id.) Centurum’s CPA called Mr. Hughes on August⁶, 2021 to confirm that the CEO instructed her to delete any reference to the loan forgiveness from the 2020 certified financial statement notes. (Id.) On August 8, 2021, Mr. Hughes was placed on administrative leave with restricted access to company documents and IT systems. (Id. ¶ 21.) As noted, he was terminated less than a month later, on September³, 2021. (Id. ¶ 25.) “[I]n the weeks leading up to his administrative leave and termination,” Mr. Hughes also complained “to his superiors” of various other instances of “misconduct.” (Id. ¶¶ 23– 24.) Following Mr. Hughes’s termination, he and Centurum discussed settlement of any claims either party might have in exchange for, among other things, two months’ pay as severance. (Id. ¶¶ 27–29.) The settlement discussions occurred over email and phone, and no written settlement agreement was ever signed by Mr. Hughes. (Id. ¶¶ 27–31; Doc. 22-2–Doc. 22-8.) Mr. Hughes filed this lawsuit on November⁴, 2021, raising three claims against Centurum: retaliation in violation of the False Claims Act (“FCA”), 31

U.S.C. § 3730(h) (Count I); retaliation in violation of Florida’s Private Whistleblower Act (“FWA”), Fla. Stat. § 448.102 (Count II); and discrimination in violation of the Rehabilitation Act (Count III). (Docs. 1, 20.) On November 9, 2021, Centurum sued Mr. Hughes in Florida state court, asserting claims of conversion and breach of the duties of loyalty and care, and seeking declaratory judgment to enforce a purported settlement agreement between the parties. Centurum, Inc. v. Hughes, Sr., No. 50-2021-CA-012461 (Fla. 15th Cir. Ct. Nov. 9, 2021); (Doc. 20 ¶ 32;

Doc. 22-1.) Centurum now moves to dismiss Mr. Hughes’s amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 22.) Centurum first contends that the parties reached a settlement agreement in which Mr. Hughes waived the claims he raises in this action. (Id. at 14–17.) Centurum next argues that, even if Mr. Hughes has not waived his claims, his allegations do not state a claim under the FCA, FWA, or Rehabilitation Act. (Id. at 18–26.) Mr. Hughes responded in opposition (Doc. 41), Centurum filed a reply (Doc. 49), and Mr. Hughes filed a surreply (Doc. 55).

DISCUSSION

The purported settlement agreement between the parties is not, at this stage of the litigation, a basis to dismiss the action. However, Mr. Hughes’s claims are due to be dismissed with leave to amend in light of the pleading deficiencies noted below. I. The purported settlement agreement is not, at this stage of the litigation, a basis to dismiss the action.

Centurum contends that, through their email correspondence and telephone conversations—despite the absence of a signed settlement agreement—the parties reached a settlement agreement whereby Mr. Hughes waived his claims. (Doc. 22 at 14–17.) Accepting the factual allegations as true and construing all reasonable inferences in Mr. Hughes’s favor, the Court finds that such a determination is unsupported, at least at this stage in the litigation. District courts have the “inherent power to summarily enforce settlement agreements entered into by parties litigant in a pending case.” Ford v. Citizens & S. Nat’l Bank, 928 F. 2d 1118, 1121 (11th Cir. 1991) (quotation omitted). Dismissal under Federal Rule of Civil Procedure 12(b)(6) is appropriate if the claims asserted are subject to a waiver or release of claims. See, e.g., United States ex rel. Higgins v. HealthSouth Corp., No. 8:14-cv-2769-T-33AEP, 2019 WL 4060176, at *2–6 (M.D. Fla. Aug. 28, 2019) (dismissing FCA retaliation claim where plaintiff released claims in severance agreement); United States ex rel. Keeler v. Eisai, Inc., No. 09- 22302-CIV-UNGARO, 2011 WL 13099033, at *3–4 (S.D. Fla. June 21, 2011) (same). Although relevant, the fact that Mr. Hughes did not sign a written settlement agreement is not dispositive. See Reed ex rel. Reed v. United States, 717 F. Supp. 1511, 1517 (S.D. Fla. 1988). Indeed, in Florida, parties can reach an enforceable agreement to waive and release claims through email exchanges where the terms of the agreement are sufficiently specific and the parties mutually agree on all material terms. See, e.g., Miles v. Nw. Mut. Life Ins. Co., 677 F. Supp. 2d 1312, 1315 (M.D. Fla. 2009) (finding an enforceable agreement where parties “said the same thing” in emails regarding the essential terms); see also Spiegel v. H. Allen Holmes, Inc., 834 So. 2d 295, 297 (Fla. 4th DCA 2002).2 Here, Centurum contends that the parties “reached a binding agreement on September⁷, 2021, when Hughes’[s] counsel explained on two separate occasions that he and his client ‘accept[ed] [Centurum’s] terms.’” (Doc. 22 at 15.)³ Some context, however, is necessary.

2021, Mr. Hughes’s attorney wrote to Centurum as follows: “I am surprised we have not heard back from you. Your clients seemed very rushed to get a deal together. Is the paperwork still being drafted? Any chance they are considering attempting to breach our agreement?” (Doc. 22-5.) The parties then exchanged a proposed agreement incorporating the discussed terms as well as additional terms, and on September 20, 2021, Mr. Hughes’s counsel returned a revised version of the proposed agreement. (Doc. 22-6.) On September 28, 2021, Centurum provided Mr. Hughes’s counsel with another draft of the proposed settlement agreement. (Doc. 22-7.) And following a conversation on October¹, 2021, Centurum wrote to Mr. Hughes’s counsel, “I am confirming our discussion this morning that your client will not be seeking to revise the terms of the settlement agreement.” (Doc. 22-8.) Viewing the allegations and reasonable inferences taken therefrom in a light most favorable to Mr. Hughes, although the parties appeared to agree in principle that, in exchange for two months of severance pay, Mr. Hughes would waive any claims that he has, there were other unresolved matters. See Midtown Realty, Inc. v. Hussain, 712 So. 2d 1249, 1251 (Fla. 3d DCA 1998) (“[W]here it appears that the parties are continuing to negotiate as to essential terms of an agreement, there can

20 ¶¶ 27–31.) As noted, even if considered at this stage, the extrinsic materials do not support a finding that Mr. Hughes’s claims were waived. be no meeting of the minds.” (quotation omitted)). Further, in a light most favorable to Mr. Hughes, the allegations and reasonable inferences suggest that the parties intended that there would be no binding contract until the negotiations were reduced to a formal writing. See Club Eden Roc, Inc. v. Tripmasters, Inc., 471 So. 2d 1322, 1324 (Fla. 3d DCA 1985) (“Where the parties intend that there will be no binding contract until the negotiations are reduced to a formal writing, there is no contract until that time.” (citation omitted)). For example, the proposed terms for paragraphs² and⁵ in Centurum’s September⁷, 2021 email expressly contemplated a signed settlement agreement.

(Doc. 22-2 at 2.) Likewise, paragraph 14 required the parties to sign “mutual general releases,” but neither party signed one. (Id.) Further, subsequent proposed agreements included new terms. (Compare Doc. 22-2, with Docs. 22-6, 22-7.)⁴ And drawing reasonable inferences in favor of Mr. Hughes, through at least September 28, 2021, the parties’ counsel continued to negotiate. Indeed, on that date, Centurum provided a proposed written agreement, titled “For Settlement Purposes Only // Confidential // Draft,” and stated, “As discussed, here is current version incorporating what we discussed . . . .” (Doc. 22-7.) Centurum’s counsel followed

In summary, at least at this early stage in the litigation and accepting all allegations set forth in the operative complaint as true and viewing them, of course, in a light most favorable to Mr. Hughes, the purported settlement agreement does not present a basis to dismiss Mr. Hughes’s claims. Centurum may again raise this issue in a motion for summary judgment, with the benefit of summary judgment evidence.⁵

II. Retaliation Under the FCA

In Count I of his amended complaint, Mr. Hughes raises a claim for retaliation under the FCA, essentially alleging that Centurum applied for and received a PPP loan in April 2020, that Mr. Hughes was instructed not to report forgiveness of a portion of the loan to the DCAA and DCMA, and that he was terminated because of his refusal to cooperate. (Doc. 20 ¶¶ 14–52.) To state a claim for retaliation under the FCA, Mr. Hughes must show that:

(1) he engaged in conduct protected under the FCA by acting in furtherance of an FCA enforcement action or other efforts to stop FCA violations; (2) Centurum knew that he was engaged in protected conduct; and (3) Centurum retaliated against him because of the protected conduct. See Mack v. Augusta-Richmond Cnty., 148 F. App’x 894, 896–897 (11th Cir. 2005); United States v. KForce Gov’t Solutions, Inc., No. 8:13-cv-1517-T-36TBM, 2014 WL 5823460, at *10 (M.D. Fla. Nov. 10, 2014). He must show, specifically, that the retaliation resulted from him engaging in activity

No. 8:18-cv-2931-T-33AAS, 2020 WL 6203527, at *8 (M.D. Fla. Oct. 22, 2020) (dismissing FCA retaliation claim where plaintiff did “not specify which scheme – of the many he alleges in the second amended complaint – he brought to his employer’s attention, or if he alerted them to any possible false claims [that were filed] or anything that would offer sufficient notice thereof,” and noting that “[r]eports of regulatory failures without a connection to fraudulent claims knowingly submitted to the government do not constitute protected conduct under the FCA” (citations omitted)). In short, without adequate factual allegations to support Mr. Hughes’s FCA retaliation claim, the claim fails. See HPC Healthcare, Inc., 723 F. App’x at 792 (deeming allegation that employee suffered retaliation because she “raised ethical issues concerning violations of the [FCA]” a legal conclusion). Accordingly, Count I is due to be dismissed, and Mr. Hughes shall have an opportunity to amend his pleading consistent with this Order. III. Retaliation under the FWA

Mr. Hughes relies on the same allegations to support the FWA claim asserted in Count II. (Doc. 20 ¶¶ 53–60.) The claim is also due to be dismissed with leave to amend for similar reasons. The FWA prohibits an employer from retaliating against an employee who reports or refuses to assist unlawful activity. Golf Channel v. Jenkins, 752 So. 2d 561, 562 (Fla. 2000). To state a claim, Mr. Hughes must allege that: (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) that the action was causally linked to the protected activity. See White v. Purdue Pharma, Inc., 369 F. Supp. 2d. 1335, 1336 (M.D. Fla. 2005). Courts have found that, to satisfy the first element, a plaintiff must allege that he objected to conduct that actually violated a law, rule, or regulation. See, e.g., Pierre v. AIDS Healthcare Found., Inc., No. 19-62556-CIV, 2020 WL 6381557, at *4–6 (S.D. Fla. Oct. 30, 2020)7 As noted, Mr. Hughes has not established that the conduct he objected to violated a law, rule, or regulation. Indeed, although he alleges a variety of purportedly wrongful conduct, he provides no law, rule, or regulation that such

In Count III, Mr. Hughes asserts a claim of disability discrimination under the Rehabilitation Act. (Doc. 20 ¶¶ 63–76.) “To establish a prima facie case of discrimination under the Rehabilitation Act, an individual must show that (1) he has a disability; (2) he is otherwise qualified for the position; and (3) he was subjected to unlawful discrimination as the result of his disability.” Tarmas v. Sec’y of Navy, 433 F. App’x 754, 761–62 (11th Cir. 2011) (quoting Sutton v. Lader, 185 F. 3d 1203, 1207–08 (11th Cir. 1999)).8 To establish causation, the individual must show that he suffered an adverse employment action “solely by reason of” his disability. Id. (quoting 29 U.S.C. § 794(a)) (emphasis added). Here, Mr. Hughes alleges that in 2015 he was diagnosed with a tremor and that in 2018 Centurum’s CEO asked him about his surgery. (Doc. 20 ¶¶ 9–10.) He further alleges that the CEO asked him to terminate Centurum’s HR Manager because of her age and her husband’s diabetes, that the HR Manager discussed Mr. Hughes’s cognitive state with Centurum’s health insurance broker in 2018, and, “[u]pon information and belief,” that the HR Manager conveyed details of Mr. 8 Courts apply decisions analyzing Americans with Disabilities Act claims to Rehabilitation Act claims. See Holbrook v. City of Alpharetta, 112 F. 3d 1522, 1526 n.2 (11th Cir. 1997). Hughes’s Parkinson’s diagnosis to Centurum’s CPA and Executive Management. (Id. ¶¶ 12–13.) Centurum observes that Mr. Hughes does not allege any other facts supporting his conclusion that Centurum’s CEO—the individual who made the decision to terminate him—had knowledge of his Parkinson’s diagnosis. Nor does he allege that the HR Manager or CPA participated in Centurum’s decision to place Mr. Hughes on administrative leave or terminate him. As alleged, years passed from the CEO asking Mr. Hughes about his surgery and the eventual decision to terminate Mr. Hughes. Centurum thus concludes that Mr. Hughes has failed to allege the required causal connection between his putative disability and any adverse action. See, e.g., Parker v. Dezzi, No. 8:21-cv-1459-TPB-SPF, 2021 WL 5395958, at *1–3 (M.D. Fla. Nov. 18, 2021) (dismissing claim with leave to amend for failure to “allege[] any events to show a causal connection between [plaintiff’s] disability and demotion,” where he was diagnosed with cancer in 2016 and demoted in 2019). In all events, as Mr. Hughes acknowledges, there is no allegation that

Centurum terminated Mr. Hughes solely because of his disability. (Doc. 41 at 26 n.6; Doc. 20 ¶¶ 63–76.)9 Accordingly, Count III is due to be dismissed, and Mr. Hughes shall have an opportunity to amend his pleading consistent with this Order. 9 Centurum argues that Mr. Hughes’s Rehabilitation Act claim is contradicted by his allegations that he was terminated because of his purported whistleblower activity. (Doc. 22 at 25.) As Mr. Hughes observes, however, at this stage in litigation he may plead alternative theories of liability. See Forsyth v. Univ. of Ala. Bd. of Trustees, No. 7:17-cv-854-RDP, 2018 WL 3012343, at *4 n.3

CONCLUSION

For the above reasons, it is ORDERED: 1. Defendant’s motion to dismiss (Doc. 22) is GRANTED in part. 2. Plaintiff's amended complaint (Doc. 20) is DISMISSED without prejudice and with leave to amend. 3. Plaintiff may file a second amended complaint consistent with this Order on or before August¹, 2022. Failure to timely file an amended complaint will result in dismissal of this action without further notice. ORDERED at Fort Myers, Florida, on July 18, 2022.

As he a “ual bhera, Lr

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE (N.D. Ala. June 15, 2018). Thus, while other factors motivating his termination may ultimately preclude relief, such allegations are not a basis for dismissal.