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finding that "[t]he evidence in the record does not support a finding that [plaintiff] actually did anything beyond what was required of his position"
Summary of this case from U.S. ex Rel. Smith v. Yale UniversityOpinion
98 Civ. 2614 (RCC)
November 9, 2000.
Opinion and Order
Plaintiff, Antonio Faldetta, initiated an action against defendant, Lockheed Martin Corporation ("Lockheed Martin"), for employment discrimination under the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 621 et. seq., the New York State Human Rights Law, N.Y. Exec. Law § 290 et. seq., and the New York City Administrative Code, § 8-101 et. seq., and for retaliatory discharge under the False Claims Act (the "FCA"), 31 U.S.C. § 3730 (h). Faldetta alleges that Lockheed Martin terminated his employment because of his age and in retaliation for reporting defects in military parts produced by Lockheed Martin and refusing to participate in an alleged attempt to cover-up these defects. Lockheed Martin has now moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the motion for summary judgment is granted in its entirety.
I. BACKGROUND
Faldetta was hired by Loral Corporation ("Loral") in 1972 and employed in the Quality Assurance ("QA") Department at its manufacturing facility in the Bronx, New York (the "Bronx facility"). (Compl. at ¶ 7.) On April 23, 1996, Lockheed Martin, one of the world's largest defense contractors, acquired the Bronx facility through a merger/acquisition of Loral. (Def.'s Reply 56.1 Statement at ¶ 2.) After the merger, the employees at the Bronx facility then became employees of Lockheed Martin. Faldetta worked in the QA Department at the Bronx facility for the duration of his employment with Loral and Lockheed Martin. During the course of his employment, he held numerous positions, including QA inspector, QA technician, QA engineer, QA senior engineer, QA supervisor and QA section manager. ( Id. at ¶ 8.) Faldetta was promoted to QA section manager on February 13, 1995, upon the recommendation of John Stine, QA manager at the Bronx facility, and with the approval of Loy Rovenstine, Director of QA at the Bronx facility. ( Id. at ¶ 9.) At the time of this promotion, Faldetta was 59 years old. As a QA section manager, Faldetta supervised the inspection of manufacturing material used in the production of electronics equipment manufactured at the Bronx facility. ( Id. at ¶ 11.) Faldetta also asserts that he supervised QA engineers and supported mechanical engineers. (Pl.'s 56.1 Statement at ¶ 11.)
In the Fall of 1996, Lockheed Martin decided to close the Bronx facility due to a downturn in business. (Def.'s Reply 56.1 Statement at ¶ 14.) A number of the manufacturing programs performed at the Bronx facility were to be transferred to Lockheed Martin's facilities in Syosset, New York (the "Syosset facility") and Ridge Hill, New York (the "Ridge Hill facility"). Pat Viola, the Director of QA at the Syosset facility, reviewed the programs to be transferred. With the assistance of Stine, Viola evaluated the programs to be transferred, the functions necessary for these programs and the employees who had performed the functions at the Bronx facility. ( Id. at ¶ 17.) It was ultimately determined that Faldetta was not going to be transferred to the Syosset facility and was going to be permanently laid off. It also was determined that five QA engineers were to be transferred to either the Syosset or Ridge Hill facilities, including Thomas Kennedy, whom Faldetta supervised at the Bronx facility. Kennedy initially was notified that he was going to be laid off, but subsequently was transferred to the Syosset facility because Lockheed Martin found a need for his expertise in printed circuit boards. (Pl.'s 56.1 Statement at ¶ 142.)
The decision to terminate Faldetta's employment was reflected in a memorandum drafted by Stine on September 19, 1996, in which Faldetta was listed under the category "Reduction in Force," with the "Reason" being "Syosset Absorbs Inspection Ops." (Def.'s Reply 56.1 Statement at ¶ 43.) Two additional memoranda, dated November 7, and November 19, 1996, also reflected this decision. ( Id. at ¶¶ 46, 47.) In November of 1996, Faldetta received a WARN Act letter, notifying him that due to the closing of the Bronx facility he would be permanently laid off "between January 6, 1997 and January 19, 1997." ( Id. at ¶ 48.) The Bronx facility was closed on January 9, 1997, resulting in a reduction in force ("the January 1997 RIF") in which over 100 employees of various ages, both older and younger than Faldetta, lost their jobs. ( Id. at ¶ 53.) At the time he was laid off, Faldetta was 61 years old.
The Worker Adjustment and Retraining Notification ("WARN") Act requires employers to provide employees with official prior notice of facility closings and mass layoffs. See 29 U.S.C. § 2102 (1999).
Faldetta filed a charge of age and national origin discrimination with the United States Equal Employment Opportunity Commission (the "EEOC") on or about July 15, 1997. (Second Am. Compl. at ¶ 3.) On or about March 2, 1998, he received a notice from the EEOC notifying him of his right to sue in federal court. ( Id. at ¶ 4.) The original Complaint in this action was filed on March 8, 1998, but Faldetta filed an Amended Complaint on August 31, 1998, and a Second Amended Complaint on January 29, 1999, in which he dropped his cause of action for national origin discrimination.
Faldetta has asserted three causes of action for age discrimination, in violation of the ADEA, the New York State Human Rights Law and the New York City Administrative Code. Faldetta contends that the decision to terminate his employment was based upon his age and not upon Lockheed Martin's asserted reason; the closing of the Bronx facility and the resulting January 1997 RIF. Faldetta argues that Lockheed Martin's actions, including: i) the transfer of his job function to a younger incumbent employee at the Syosset facility, George O'Hanlon; ii) the transfer of younger and less qualified Bronx facility QA engineers; iii) the failure to consider him for any position at the Syosset facility; and iv) the failure to immediately identify the decision-makers who decided to terminate his employment, give rise to an inference of age discrimination and demonstrate that Lockheed Martin's stated reason for his termination was a pretext for discrimination. (Pl.'s Mem in Opp'n at pp. 10-15.) Specifically, he asserts that Lockheed Martin retained "younger, less experienced QA section managers to work at the Ridge Hill and Syosset facilities," to wit, O'Hanlon was not capable of performing Faldetta's job function. (Second Am. Compl. at ¶¶ 13-14; Pl.'s 56.1 Statement at ¶¶ 22, 30-31.) Furthermore, he contends that the retention of the younger and less qualified QA engineers evinces Lockheed Martin's discriminatory motive.
O'Hanlon was 38 years old at the time of the January 1997 RIF. (Aff. of Julian R. Birnbaum, Ex. E.)
Lockheed Martin maintains that it terminated Faldetta's employment for a legitimate and nondiscriminatory reason; the closing of the Bronx facility and the accompanying January 1997 RIF. Specifically, Lockheed Martin asserts that the Syosset facility already employed an individual, O'Hanlon, who was capable of performing Faldetta's job function. Lockheed Martin contends that Viola's evaluation of which programs were to be transferred was based upon the program needs at the Syosset facility and not upon an analysis of individual employees. Viola first reviewed the Bronx programs that were going to be transferred to the Syosset facility and the job functions required for each program. (Def.'s Reply 56.1 Statement at ¶ 17.) He evaluated information provided by Stine, who "put together a program overview for the programs that were going to be transferred . . . [and] discussed staffing, programs, the requirements on the programs and the product lines [with Viola]." ( Id. at ¶ 19.) Viola then assessed whether additional job functions were needed to cover the existing programs at the Syosset facility and those programs to be transferred from the Bronx facility. ( Id. at ¶¶ 20.) Viola and Stine did not discuss Faldetta specifically at this stage. ( Id. at 66 17-20.) When Viola determined that an additional job function was needed, he and Stine discussed who previously had performed this function at the Bronx facility. The parties contest whether Viola and Stine discussed Faldetta specifically at this juncture. ( Id. at ¶ 21.) Lockheed Martin maintains that when Viola concluded that an additional job function was not needed, he did not confer with Stine, but decided that the incumbent Syosset facility employee would continue to perform the function. ( Id. at ¶ 23.) Again, the parties contest whether Viola and Stine discussed Faldetta specifically at this stage. With respect to the QA departments at both facilities, Viola found that they were "almost exactly alike," with the functions being "very similar." ( Id. at ¶ 28.) He concluded that "[Faldetta's] function was up and running in Syosset and no needed manpower or staffing was required . . . [because] that function in Syosset [was] well manned and positioned." ( Id. at ¶ 30.) Therefore, Lockheed Martin decided Faldetta's job function was not needed in the Syosset facility. Based on Viola's analysis, Lockheed Martin decided to terminate those employees who performed functions that would not be needed after the Bronx facility was closed. ( Id. at ¶ 25.)
In the fourth cause of action, for retaliatory discharge under the FCA, Faldetta alleges that Lockheed Martin terminated his employment because he refused to approve allegedly defective components manufactured at the Bronx facility and refused to participate in any efforts to cover up these deficiencies. (Second Am. Compl. at ¶ 39.) He contends that he engaged in protected conduct under the FCA when he: i) rejected defective LRU3 chassis parts and issued nonconformance reports for repairs; ii) questioned Stine regarding a procedure to inspect repair work done on defective parts (the "penetrant inspection"); and iii) refused to release the defective parts. (Pl.'s Mem. in Opp'n at pp. 17-22.) Faldetta asserts that from 1995 up until the January 1997 RIF, he rejected parts that did not conform to the government's requirements, and that Stine had overridden him "continuously and confronted [him] continuously." (Def.'s Reply 56.1 Statement at ¶ 66.) Faldetta also alleges that "Stine confronted him on the assembly floor and criticized him for authorizing QA inspectors to reject reworked LRU3 chassis parts." ( Id. at ¶ 68.) This confrontation occurred, at the earliest, at the "`end of November' or the `beginning of December'" of 1996. ( Id. at ¶ 69.) Faldetta also maintains that he had a "screaming confrontation" with John Cotumaccio, the Director of Manufacturing, over Faldetta's refusal to release defective parts. (Pl.'s 56.1 Statement at ¶ 151.) Faldetta avers that on December 23, 1996, he contacted Sarah Hitchen, a Director of Human Resources, to complain about Stine's improper criticism and about conduct that could constitute fraud. ( Id. at ¶¶ 70-73.) He also maintains that he informed Hitchen that it would be retaliation to lay him off for not permitting Stine and Cotumaccio to use defective materials and that he would sue Lockheed. ( Id. at ¶ 153-54.) Subsequently, during the first week of January of 1997, Faldetta met with Thomas Murray, a Director of Human Resources, Hitchen and another individual, Maurice Price. (Def.'s Reply 56.1 Statement at ¶¶ 75, 155.) Faldetta alleges that he informed both Hitchen and Murray that: i) Stine was retaliating against him for rejecting defective parts; ii) it would be retaliation to lay him off because he had problems with both Stine and Cotumaccio over this issue; and iii) he would sue Lockheed Martin. (Pl.'s 56.1 Statement at ¶¶ 155-57.)
In response, Lockheed Martin argues that Faldetta has not presented any facts demonstrating that his termination constituted a retaliatory discharge. Lockheed Martin affirms that it did not commit any improprieties. Lockheed Martin points to the fact that government inspectors were on the premises at the Bronx facility, "monitoring the quality of the job . . . and insur[ing] [that Lockheed Martin was] complying with the order requirements." (Def.'s Reply 56.1 Statement at ¶ 80.) Lockheed Martin also contends that even had such improprieties existed, Faldetta did not engage in any protected conduct; that he neither took affirmative steps toward conducting an investigation, nor actually conducted an investigation that would have exposed any alleged fraud or misconduct on the part of Lockheed Martin. (Def.'s Mem. in Supp. at pp. 22-23.) Further, Lockheed Martin asserts that it had no knowledge of Faldetta's alleged protected conduct and did not have reason to believe that he was contemplating a qui tam action or that such action was a distinct possibility. ( Id. at pp. 23-24.) Lockheed Martin contests Faldetta's claim that he had discussed any alleged fraud or illegal activity or the possibility of retaliatory discharge with Hitchen or Murray. (Def.'s Reply 56.1 Statement at ¶¶ 70-73, 153-54.) Hitchen testified that Faldetta "did not tell [her] about any criticism" and "absolutely nothing" about LRU3 chassis parts or any other parts. (Hitchen Dep. at p. 164.) Murray also testified that "Faldetta did not tell [him] about any alleged illegal activity or fraud by Lockheed Martin." (Murray Aff. at ¶ 21.) Finally, Lockheed Martin argues that Faldetta has failed to put forth any facts demonstrating that he was terminated in retaliation for his conduct. Lockheed Martin maintains that Faldetta's employment was terminated for a legitimate and non-discriminatory reason; the closing of the Bronx facility and the resulting January 1997 RIF. Moreover, Faldetta was aware of the decision to terminate his employment prior to the confrontation with Stine and in advance of any discussions he had with Hitchen and Murray. (Def.'s Mem. in Supp. at p. 24.)
Lockheed Martin has now moved for summary judgment on the grounds that Faldetta has failed to: i) make a prima facie showing of discrimination; ii) show that defendant's asserted reason for terminating his employment was a pretext; and iii) establish a viable claim for retaliatory discharge under the FCA.
II. DISCUSSION
Summary Judgment Standard
Summary judgment is warranted where the pleadings and discovery materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c) (1999). In evaluating a motion for summary judgment, the Court must assess whether there are any material factual issues to be tried, while resolving ambiguities and drawing all reasonable inferences against the moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). If the evidence is such that a reasonable jury could find in favor of the non-moving party, then there is a genuine dispute over a material fact. See Anderson, 477 U.S. at 248; Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991). However, once the moving party has met its initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party cannot establish such a dispute and defeat the motion with mere "metaphysical doubt, conjecture, or surmise. . . ." Halpern v. F.B.I., 181 F.3d 279, 287 (2d Cir. 1999); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348 (1986)). Therefore, in opposing a motion for summary judgment, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial," Anderson, 477 U.S. at 250, and may not rest upon mere allegations or denials in his pleadings. See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); see also Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.) (affirming summary judgment where plaintiff opposed motion merely by providing "conclusory allegations of discrimination, absent any concrete particulars"), cert. denied, 474 U.S. 829 (1985).
The Court notes that the Second Circuit has cautioned that when determining summary judgment motions in discrimination cases, courts should be particularly circumspect. See Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996); Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994). This pronouncement, however, does not preclude the granting of summary judgment in such cases. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994); Brennan v. Metropolitan Opera Ass'n, Inc., 1998 WL 193204 at *8 (S.D.N.Y. Apr. 22, 1998), aff'd, 192 F.3d 310 (1999).
A. Discrimination Under the ADEA
The ADEA prohibits employers from discriminating in the discharge of employees who are over 40 years old, based upon their age. See 29 U.S.C. § 623 (a)(1), 631(a) (1999); Reeves v. Sanderson Plumbing Prods., Inc., ___ U.S. ___, 120 S.Ct. 2097, 2105 (2000); Tarshis v. The Riese Org., 211 F.3d 30, 35 (2d Cir. 2000); O'Sullivan v. The New York Times, 37 F. Supp.2d 307, 313 (S.D.N.Y. 1999). The New York Human Rights Law and the New York City Administrative Code also afford similar protection. See Emanuel v. Oliver, Wyman Co., LLC, 85 F. Supp.2d 321, 328 (S.D.N.Y. 2000); Brennan, 1998 WL 193204 at *8. Where a plaintiff alleges employment discrimination under the ADEA, as well as the New York Human Rights Law and the New York City Administrative Code, the Court applies the burden shifting analysis outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817 (1973). See O'Sullivan, 37 F. Supp.2d at 314; Da Cunha v. Globo Int'l (New York) Ltd., 1999 WL 38177 at *5 (S.D.N.Y. Jan. 28, 1999); see also Sutera v. Schering Corp., 73 F.3d 13, 16, n. 2 (2d Cir. 1995) (noting that analysis applied to ADEA claim also applies to claim under New York Human Rights Law); Cronin v. ITT Corp., 737 F. Supp. 224, 229 (S.D.N.Y. 1990) (stating that discrimination claims under New York Human Rights Law are analogous to ADEA claims, hence same elements and burdens of proof apply). Under the McDonnell Douglas analysis, the plaintiff has the initial burden of "proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089 (1981); see Tarshis, 211 F.3d at 35; Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir.), cert. denied, ___ U.S ___, 120 S.Ct. 2718 (2000). Once this has been established, the burden then shifts to the employer to rebut the prima facie case, by producing evidence of a "legitimate, nondiscriminatory reason" for its actions. McDonnell Douglas, 411 U.S. at 802; see Reeves, ___ U.S ___, 120 S.Ct. at 2106; Tarshis, 211 F.3d at 36; Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.), cert. denied, 525 U.S. 1001 (1998). If the employer offers evidence of a nondiscriminatory reason for the discharge, the framework of burdens and presumptions disappears and the presumption of discrimination is rebutted. See Reeves, ___ U.S. ___, 120 S.Ct. at 2106; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742 (1993); Tarshis, 211 F.3d at 36; Carlton, 202 F.3d at 134-35. The burden then shifts back to the plaintiff, who must prove that the reason offered by the employer was not its true reason, but a pretext for discrimination. See St. Mary's Honor Ctr., 509 U.S. at 511; Tarshis, 211 F.3d at 36; Carlton, 202 F.3d at 135. The plaintiff may establish that discrimination was the underlying reason by showing that it was a motivating factor, although not necessarily the only motivating factor, in the decision. See Tarshis, 211 F.3d at 36; Carlton, 202 F.3d at 135; Cronin, 46 F.3d at 203. In the end, however, the plaintiff has "the ultimate burden" of proving that the adverse employment decision was the result of intentional discrimination. See Reeves, ___ U.S. ___, 120 S.Ct. at 2106; Burdine, 450 U.S. at 253; Burger v. New York Inst. of Tech., 94 F.3d 830, 833 (2d Cir. 1996); Cronin, 46 F.3d at 203.
1. Prima Facie Case of Discrimination
In order to establish a prima facie case of discrimination, Faldetta must show that: i) he is a member of a protected class; ii) he performed his job satisfactorily; iii) he was subjected to an adverse employment decision or discharge; and iv) the adverse employment decision or discharge occurred under circumstances giving rise to an inference of discrimination. See Tarshis, 211 F.3d at 35; Carlton, 202 F.3d at 134; Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); Connell v. Consolidated Edison Co. of New York, Inc., 109 F. Supp.2d 202, 206-07 (S.D.N.Y. 2000). It is undisputed that Faldetta satisfies the first three elements of a prima facie case of discrimination. He was 61 years old at the time of the January 1997 RIF, he performed his various jobs satisfactorily over the course of his employment with Loral and Lockheed Martin and his employment was terminated during the January 1997 RIF. However, the parties contest whether Faldetta has established the fourth element, demonstrating that his discharge occurred under circumstances giving rise to an inference of age discrimination.
To satisfy the fourth element of the prima facie case, Faldetta must allege facts showing that he was treated differently than "similarly situated" younger persons. See Burdine, 450 U.S. at 258; Burger, 94 F.3d at 833-34. It is well established that the burden of proving a prima facie case of discrimination is not an onerous burden. See St. Mary's Honor Ctr., 509 U.S. at 506; Green way v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). In fact, this burden often is described as minimal. See St. Mary's Honor Ctr., 509 U.S. at 506; Tarshis, 211 F.3d at 35; Carlton, 202 F.3d at 134; Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997) ( per curiam). Therefore, Faldetta must submit evidence demonstrating circumstances that would permit a rational finder-of-fact to infer a discriminatory motive. See Chertkova, 92 F.3d at 91; Cronin, 46 F.3d at 204; Ralkin v. New York City Transit Auth., 62 F. Supp.2d 989, 996 (S.D.N.Y. 1999).
Here, Faldetta argues that Lockheed Martin's actions, specifically: i) transferring his job function to a younger Syosset facility employee; ii) retaining younger and less qualified QA engineers; iii) the concomitant failure to consider him for a QA engineer position; and iv) failing to immediately identify the decision -makers responsible for terminating his employment, give rise to an inference of age discrimination. With respect to Faldetta's first point, the replacement of a plaintiff by a significantly younger person generally can be evidence of age discrimination. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13, 116 S.Ct. 1307 (1996); Carlton, 202 F.2d at 135; Montana v. First Fed. Sav. Loan Ass'n of Rochester, 869 F.2d 100, 105 (2d Cir. 1989). In addition, Lockheed Martin's failure to transfer Faldetta while accommodating younger employees, such as the transferred QA engineers, will support an ADEA claim at this stage. See Cronin, 46 F.3d at 204; Pisana v. Merrill Lynch Co., Inc., 1995 WL 438715 at *6 (S.D.N.Y. Jul. 24, 1995); Sheahan v. CBS, Inc., 1994 WL 74836 at *6 (S.D.N.Y. Mar. 3, 1994). In light of Faldetta's de minimus burden of establishing a prima facie case of discrimination, the Court determines that he has made the requisite showing.
Notwithstanding this determination, the Court notes that Faldetta has barely satisfied even this minimal burden. A reduction in force ("RIF"), which is acknowledged as a legitimate grounds for terminating an employee, undercuts the inference of discrimination created by the fact that a younger employee assumed Faldetta's job responsibilities. See Tarshis, 211 F.3d at 37; Carlton, 202 F.3d at 136; Woroski v. Nashua Corp., 31 F.3d 105, 109 (2d Cir. 1994); Parcinski v. The Outlet Co., 673 F.2d 34, 36-37 (2d Cir. 1982), cert. denied, 459 U.S. 1103 (1983). As is often in RIF cases, this does not necessarily indicate that Faldetta was discriminated against, but that Lockheed Martin had successfully reduced the number of its employees necessary to perform certain work. See Suttell v. Manufacturers Hanover Trust Co., 793 F. Supp. 70, 73 (S.D.N.Y. 1992); see also Gallo, 22 F.3d at 1226 (acknowledging that employer is entitled to reorganize operations to maximize efficiencies). Moreover, the inference of discrimination is further undercut by the fact that another similarly situated individual within the protected class, Earl Gary, a 56 year old QA section manager, was retained after the January 1997 RIF because his job function was needed at the Syosset facility. See Ralkin, 62 F. Supp.2d at 1000; see also Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 38 (2d Cir. 1994) (recognizing that diverse makeup of workforce may justify inference that employer possessed no discriminatory animus). The Court also questions Faldetta's contention that the transfer of younger QA engineers presupposes an inference of discrimination. In light of the fact that these individuals clearly are not similarly situated to Faldetta, the merits of this argument are debatable. Furthermore, in the context of an employment discrimination claim, they do not provide a proper basis for comparison. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (noting that to establish fourth element of prima facie case, plaintiff must show disparate treatment relative to "similarly situated" employees and these employees "must be similarly situated in all material respects"); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir. 1999) (quoting Shumway, 118 F.3d at 63); Belgrave v. Pena, 2000 WL 1290592 at *10 (S.D.N.Y. Sep. 13, 2000) (quoting Shumway, 118 F.3d at 63); Ralkin, 62 F. Supp.2d at 999 (quoting Shumway, 118 F.3d at 64). Nevertheless, the Court recognizes that at this juncture it cannot foreclose the possibility that, based on these facts, a reasonable jury might infer a discriminatory intent on the part of Lockheed Martin.
Finally, Faldetta's argument concerning Lockheed Martin's alleged delay in identifying the decision-makers responsible for the termination decision, is wholly without merit and lends no support to his case at either this stage of the proceedings or under the pretext analysis. Accordingly, the Court declines to further address this point.
2. Employer's Legitimate Non-Discriminatory Reason for Discharge
The burden now shifts to Lockheed Martin to articulate a legitimate non-discriminatory reason to rebut the prima facie case of discrimination. See Reeves, ___ U.S ___, 120 S.Ct. at 2106; St. Mary's Honor Ctr., 509 U.S. at 506-07; Tarshis, 211 F.3d at 36; Austin, 149 F.3d at 153. At this stage, the employer's burden is one of production, not persuasion. See Reeves, ___ U.S ___, 120 S.Ct. at 2106; St. Mary's Honor Ctr., 509 U.S. at 509; Austin, 149 F.3d at 153. Any legitimate non-discriminatory reason is sufficient. See Tarshis, 211 F.3d at 36; Austin, 149 F.3d at 153. Lockheed Martin's asserted reason is that Faldetta was discharged due to the closing of the Bronx facility and the accompanying January 1997 RIF. Accordingly, Lockheed Martin has met its burden of production. See Tarshis, 211 F.3d at 37 (recognizing that RIF is a legitimate reason for dismissing an employee); Carlton, 202 F.3d at 136 (stating that RIF due to company's financial imbalance is sufficient to rebut prima facie case of discrimination); Woroski, 31 F.3d at 109 (holding that company-wide RIF is valid non-discriminatory reason for discharge).
3. Pretext
The presumption of discrimination raised by Faldetta's prima facie case is now rebutted, and the burden shifts back to Faldetta "`to prove by a preponderance of the evidence that the legitimate reasons offered by [Lockheed Martin] were not its true reasons, but were a pretext for discrimination.'" Reeves, ___ U.S. ___, 120 S.Ct. at 2106 (quoting Burdine, 450 U.S. at 253); see St. Mary's Honor Ctr., 509 U.S. at 507-08; Tarshis, 211 F.3d at 36; Meiri, 759 F.2d at 994. Thus, to defeat the motion for summary judgment, Faldetta must show that there is a material issue of fact as to whether i) Lockheed Martin's asserted reason for discharge is false or unworthy of belief and ii) more likely than not, his age was the real reason for the discharge. See St. Mary's Honor Ctr., 509 U.S. at 515-17; Chertkova, 92 F.3d at 92; Woroski, 31 F.3d at 108-09; Gallo, 22 F.3d at 1225.
As evidence of pretext, Faldetta relies upon the fact that "his duties were transferred to a much younger incumbent Syosset employee." (Pl.'s Mem. in Opp'n at pp. 10-11.) Furthermore, he asserts that the Syosset facility was not capable of performing his job function with existing incumbents. (Pl.'s 56.1 Statement at ¶¶ 22, 30-31, 180, 184, 186, 189-91.) Faldetta points out that Stine expressed concerns about whether the Syosset facility could handle the programs being transferred with its existing personnel. ( Id. at ¶¶ 184, 191.) He further maintains that Stine touted his experience and expertise, and recommended that Faldetta be retained because the Syosset facility could not operate the transferred programs without him. ( Id. at ¶¶ 180, 184, 190-91.) Faldetta argues, therefore, that this evidence would permit a trier of fact to infer that his age was a motivating factor in the decision to terminate his employment.
Lockheed Martin contends that Faldetta was terminated because it already employed O'Hanlon, who was responsible for supervising the inspection function at the Syosset facility. In evaluating which programs were to be transferred, Viola determined that the QA departments at both facilities were "almost exactly alike," with the functions being "very similar." (Def.'s Reply 56.1 Statement at ¶ 28.) Hence, Viola concluded that "[Faldetta's] function was up and running in Syosset and no needed manpower or staffing was required . . . [because] that function in Syosset [was] well manned and positioned." ( Id. at ¶ 30.) An allegation of replacement by a younger employee, without more, does not prove discrimination. See O'Sullivan, 37 F. Supp.2d at 319; Wado v. Xerox Corp., 991 F. Supp. 174, 205 (W.D.N.Y. 1998), aff'd, 196 F.3d 358 (2d Cir. 1999); Pisana, 1995 WL 438715 at *8; Suttell, 793 F. Supp. at 73-74. While Faldetta alleges that his experience and expertise as a QA section manager was needed at the Syosset facility, he has not shown that his age played a factor in Lockheed Martin's decision-making process. Lockheed Martin discharged Faldetta during the January 1997 RIF, after evaluating whether his job function was needed at the Syosset facility. The process of determining which functions, and hence, which employees, were to be transferred, was based on this objective criteria. It was not tainted by any discriminatory animus on the part of the decision-makers, Viola and Rovenstine, and no inference of such could be borne by the evidence in the record. In fact, Lockheed Martin did not terminate Gary, a 56 year old QA section manager, because Gary supervised the metrology function, which the Syosset facility did not have. (decks Reply 56.1 Statement at ¶¶ 32-34.) Discriminatory motive is further belied by the fact that the primary decision-maker, Rovenstine, had promoted Faldetta approximately two years prior to the January 1997 RIF. See Connell, 109 F. Supp.2d at 210 (where same decision-maker who approved incentive award for plaintiff a year earlier, made decision to discharge plaintiff, this factor suggested discrimination was not a cause for the layoff); Anderson v. Anheuser-Busch, Inc., 65 F. Supp.2d 218, 229 (S.D.N.Y. 1999) (inference of discriminatory animus less reasonable where person who fired plaintiff was also responsible for recently hiring or promoting plaintiff), aff'd, ___ F.3d ___, 2000 WL 1370266 (2d Cir. Sep. 19, 2000); see also Grady v. Affiliated Central, Inc., 130 F.3d 553, 560 (2d Cir. 1997) (finding it difficult to impute an invidious motivation to the people responsible, for the decision to fire, when the same people were responsible for the decision to hire), cert. denied, 525 U.S. 936 (1998). In light of this evidence, Stine's recommendation of Faldetta and his concerns regarding the capabilities of the Syosset facility are not enough to support a finding that Faldetta's discharge was motivated by discriminatory animus. Even the disagreement between the parties, as to whether Viola and Stine discussed Faldetta specifically during this process, is insufficient to create a material issue of fact. Without more, Faldetta's arguments only amount to conclusory allegations and conjecture, which cannot defeat a motion for summary judgment. See Meiri, 759 F.2d at 998; Emanuel, 85 F. Supp.2d at 327; O'Sullivan, 37 F. Supp.2d at 314. Moreover, absent evidence of discrimination, it is not the province of the Court to "`sit as a super-personnel department that reexamines an entity's business decisions.'" Scaria, 117 F.3d at 655 (quoting Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986), cert. denied, 479 U.S. 1066 (1987)); see Bertuzzi v. Chase Manhattan Bank, N.A., 1999 WL 759997 at *6 (S.D.N.Y. Sep. 24, 1999) (quoting Scaria, 117 F.3d at 655); see also Tarshis, 211 F.3d at 37 (recognizing that ADEA does not grant courts authority to second-guess wisdom of corporate business decisions); Parcinski, 673 F.2d at 37 (same). Accordingly, Faldetta has failed to present sufficient evidence to support a rational finding that either Lockheed Martin's decision to have O'Hanlon assume Faldetta's responsibilities, or the corresponding decision to terminate his employment, were motivated by discriminatory animus.
Viola testified that he did not make the decision to terminate Faldetta's employment, but that he "indirectly" participated in this decision. (Viola Dep. at pp. 11-12.)
With the exception of Stine's recommendation that Faldetta be retained, the parties contest whether Viola and Stine ever discussed Faldetta specifically during the evaluation process (of which programs were to be transferred from the Bronx facility to the Syosset facility).
Faldetta also contends that a reasonable jury could conclude that age was a factor in the decision to lay him off, based upon the retention of five younger QA engineers, a position for which he was eminently qualified. However, Lockheed Martin determined that the function of the QA engineers who were retained would be needed after the closing of the Bronx facility, whereas Faldetta's function would not. (Def.'s Reply 56.1 Statement at ¶ 56.) Moreover, it is undisputed that at the time he was terminated, Faldetta had an entirely different job function from the QA engineers. Faldetta was the manager responsible for supervising inspection, which included supervising the program quality engineers. ( Id. at ¶ 11; Pl.'s 56.1 Statement at ¶¶ 11, 98-100.) Additionally, he was in a completely different peer group from the QA engineers; Faldetta was a member of the QE02 peer group, whereas the QA engineers were members of the QE06 peer group. (Def.'s Reply 56.1 Statement at ¶¶ 12, 13.) As such, his attempt to compare himself to employees with different functions and titles is misplaced, because these employees were not similarly situated to Faldetta and do not provide a basis of comparison upon which he can now claim age discrimination. See Shumway, 118 F.3d at 64; Norville, 196 F.3d at 96; Belgrave, 2000 WL 1290592 at *10; Ralkin, 62 F. Supp.2d at 999.
Faldetta's contention, that the failure to consider him for a QA engineer position evinces discriminatory animus, also is unavailing. Notwithstanding his qualifications, Faldetta fails to recognize that Lockheed Martin is not obligated to find another position for an employee who is about to be terminated, even if he is qualified for that position. See Parcinski, 673 F.2d at 37; Campbell v. Daytop Village, Inc., 1999 WL 292576 at *3 (S.D.N Y May 7, 1999), aff'd, 201 F.3d 430 (2d Cir. 1999); see also Jaworski v. Westplex Corp., R.E., 49 F. Supp.2d 151, 157 (W.D.N.Y. 1998) (holding that ADEA does not require employer to offer lower paying position to older employee before offering it to younger employee, provided reason was not discriminatory), aff'd, 182 F.3d 900 (2d Cir. 1999). Lockheed Martin's decision not to find another position for Faldetta, in this case an apparently subordinate position to the one he held when terminated, does not constitute discrimination under the ADEA. See Maresco v. Evans Chemetics, Div. of W.R. Grace Co., 964 F.2d 106, 111 (2d Cir. 1992); Daytop Village, 1999 WL 292576 at *3 The ADEA does not compel courts to adjudge the wisdom of a corporation's business decisions. See Tarshis, 211 F.3d at 37; Parcinski, 673 F.2d at 37. Hence, even if Faldetta was more qualified as a QA engineer than the employees who were transferred, this is insufficient to raise a genuine issue of fact concerning discriminatory motive. See Burdine, 450 U.S. at 258-59; Davis v. State Univ. of New York, 802 F.2d 638, 641 (2d Cir. 1986) (holding that employer need not prove that person promoted had superior qualifications or that employer made wisest choice, but only that decision was based on non-discriminatory reasons); DiCola v. SwissRe Holding (North America), 1992 WL 197403 at *6 (S.D.N.Y. Aug. 5, 1992) (quoting Davis, 802 F.2d at 641), aff'd, 996 F.2d 30 (2d Cir. 1993); see also Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) (evidence of poor business judgment by employer is insufficient to establish issue of fact as to credibility of employer's reasons for discharging employee); Belgrave, 2000 WL 1290592 at *11 (even assuming plaintiff was more qualified for position that another employee was given, this was insufficient to raise issue of fact as to discriminatory animus).
Faldetta has not demonstrated that there is a material issue of fact concerning Lockheed Martin's reason for terminating his employment and that age was the real motivation. Having failed to produce such evidence, Faldetta cannot simply rely upon his conclusory allegations and speculation in order to defeat the motion for summary judgment. See Meiri, 759 F.2d at 998; Emanuel, 85 F. Supp.2d at 327; O'Sullivan, 37 F. Supp.2d at 314. Furthermore, "[i]f the plaintiffs evidence was barely sufficient to make out a prima facie case, it may not be sufficient to establish discrimination after the defendant has proffered a neutral rationale." Stern v. Trustees of Columbia Univ. in the City of New York, 131 F.3d 305, 312 (2d Cir. 1997). Accordingly, Faldetta has failed to demonstrate that he was discharged on the basis of his age, in violation of the ADEA, the New York Human Rights Law and the New York City Administrative Code.
B. Retaliatory Discharge Under the FCA
The FCA prohibits persons from presenting false or fraudulent claims for payment to the government, and includes a provision intended to encourage employees with knowledge of false or fraudulent claims to come forward with such evidence. See 31 U.S.C.A. §§ 3729, 3730(h) (1983); Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir. 1996), cert. denied, 519 U.S. 1115 (1997); Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994), cert. denied, 513 U.S. 1154 (1995); Moor-Jankowski v. The Bd. of Trustees of New York Univ., 1998 WL 474084 at *10 (S.D.N.Y. Aug. 10, 1998); Luckey v. Baxter Healthcare Corp., 2 F. Supp.2d 1034, 1050 (N.D. Ill. 1998). Section 3730(h) of the FCA provides in pertinent part that:
[a]ny 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.A. § 3730(h). This "whistleblower" provision was intended to protect persons who assist in the discovery and prosecution of fraud, because "few individuals will expose fraud if they fear their disclosures will lead to harassment, demotion, loss of employment or any other form of retaliation." S.Rep. No. 345, 99th Cong., 2d Sess. 35 (1986), reprinted in, 1986 U.S.C.C.A.N. 5266, 5300; see McKenzie v. BellSouth Telecomm., Inc., 123 F.3d 935, 944 (6th Cir. 1997) (quoting same), cert. denied, 522 U.S. 1077 (1998); see also Neal v. Honeywell, Inc., 33 F.3d 860, 861 (7th Cir. 1994) (stating that section 3730(h) was designed to afford protection to people who assist in discovery and prosecution of fraud); Moor-Jankowski, 1998 WL 474084 at *10 (same). In order to sustain an action under section 3730(h), Faldetta must prove that he: i) engaged in conduct protected under the statute; ii) Lockheed Martin was aware of his conduct; and iii) he was terminated in retaliation for his conduct. See Hopper, 91 F.3d at 1269; Robertson, 32 F.3d at 951; Vallejo v. Investronica, Inc., 2 F. Supp.2d 330, 338 (W.D.N.Y. 1998); Moor-Jankowski, 1998 WL 474084 at *10; Mikes v. Strauss, 889 F. Supp. 746, 752 (S.D.N.Y. 1995).
Faldetta alleges that he was terminated because he refused to approve defective LRU3 chassis parts and refused to participate in efforts to cover up these deficiencies. (Second Am. Compl. at ¶ 39.) He contends that he engaged in protected conduct when he: i) rejected the defective LRU3 chassis parts and issued nonconformance reports for repairs; ii) questioned Stine and reviewed paperwork regarding the penetrant inspection; and iii) refused to release the defective LRU3 chassis parts. (Pl.'s Mem. in Opp'n at pp. 16-22.) Faldetta asserts that since 1995, he had rejected parts that did not conform to the government's requirements, and that Stine had overridden him "continuously and confronted [him] continuously." (Def.'s Reply 56.1 Statement at ¶ 66.) Faldetta cites one confrontation in particular, where "Stine confronted him on the assembly floor and criticized him for authorizing QA inspectors to reject reworked LRU3 chassis parts." ( Id. at ¶ 68.) This confrontation occurred, at the earliest, at the "`end of November' or the `beginning of December.'" ( Id. at ¶ 69.) Faldetta also maintains that he had a "screaming confrontation" with Cotumaccio, over Faldetta's refusal to release defective parts. (Pl.'s 56.1 Statement at ¶ 151.)
Under the FCA, "protected activity" is to be interpreted broadly. See S.Rep. No. 345, 99th Cong., 2d Sess. 34 (1986), reprinted in, 1986 U.S.C.C.A.N. 5266, 5299; Luckey, 2 F. Supp.2d at 1051. Therefore, an employee's activities may be protected even where an FCA suit has not been filed. See Yesudian v. Howard Univ., 153 F.3d 731, 740 (D.C. Cir. 1998); Childree v. UAP/GA AG Chem., Inc., 92 F.3d 1140, 1146 (11th Cir. 1996), cert. denied, 519 U.S. 1148 (1997); Neal, 33 F.3d at 864; Moor-Jankowski, 1998 WL 474084 at *10; Mikes, 889 F. Supp. at 752. Nevertheless, Faldetta's actions do not meet the standard here. For an employee's actions to be protected they must have been "in furtherance of an action" under the FCA. Hopper, 91 F.3d at 1269; see Yesudian, 153 F.3d at 740; Zahodnick v. IBM Corp., 135 F.3d 911, 914 (4th Cir. 1997). Thus, Faldetta must have been investigating matters that were calculated, or reasonably could have lead, to a viable FCA action. See Yesudian, 153 F.3d at 740; Hopper, 91 F.3d at 1269; Neal, 33 F.3d at 864; see also Luckey, 2. F. Supp.2d at 105 1-52 (recognizing that employee's activity must be fueled by or connected to employer's fraudulent activity in submitting false claims for payment to government). Although Faldetta now asserts that he was motivated by such a belief, there is little in the record to indicate that he was concerned with anything more than whether the LRU3 chassis parts complied with government specifications. Faldetta engaged in conduct that ordinarily falls within the context of his job responsibilities; overseeing the inspection process to ensure compliance with government specifications. Merely because he rejected defective LRU3 chassis parts and inquired as to why the penetrant inspection was eliminated, without more, is insufficient to establish that his actions were connected to Lockheed Martin's fraudulent activity in submitting claims for payment. Courts have held that it is not enough that an employee merely investigates his employer's non-compliance with federal regulations. See Hopper, 91 F.3d at 1269; Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1523 (10th Cir. 1996); Luckey, 2 F. Supp.2d at 1052. The evidence in the record does not support a finding that Faldetta actually did anything beyond what was required of his position. His actions appear to be little more than a cursory review as to why the penetrant inspection, a procedure that he had implemented, had been eliminated. (Pl.'s 56.1 Statement at ¶¶ 115, 124.) The discussions he had with Stine and other employees, as well as his review of paperwork indicating that the penetrant inspection had not been performed, do not rise to the level of investigative activities in furtherance of an FCA action. See Hopper, 91 F.3d at 1269 (holding that plaintiff was not engaged in conduct in furtherance of an FCA action where plaintiff had submitted over seventy written complaints to the school district and made over fifty telephone calls); cf. Yesudian, 153 F.3d at 740 (concluding that there was sufficient evidence of plaintiff investigating a fraud where plaintiff repeatedly advised superiors that he had evidence of coworker's improper activities and collected evidence in support of claim); Mikes, 899 F. Supp. at 752, (concluding that plaintiff had engaged in protected conduct where plaintiff observed the use of inappropriate tests, investigated the over-use of certain tests and confronted defendants with her observations).
Faldetta spoke with an inspector on this subject, reviewed the paperwork indicating that no penetrant inspection had been done and questioned Stine concerning the matter. (Pl.'s 56.1 Statement at ¶ 124-31.)
Faldetta also must prove that Lockheed Martin knew that he was engaging in protected conduct. Absent "such notice, then, a fortiori, [Lockheed Martin's] actions could not constitute retaliation." Ramseyer, 90 F.3d at 1522. Faldetta contends that he satisfies the notice requirement because he informed both Hitchen and Murray that: i) Stine was retaliating against him for rejecting defective parts; ii) it would be retaliation to lay him off because he had confrontations with Stine and Cotumaccio over this issue; and iii) he would sue Lockheed Martin. (Pl.'s 56.1 Statement at ¶¶ 155-57.) Faldetta asserts that he discussed these matters with Hitchen in December of 1996, and with both Hitchen and Murray, during the first week of January of 1997. ( Id. at ¶ 70-73, 153-54.) The parties dispute whether these issues were ever discussed. (Def.'s Reply 56.1 Statement at ¶¶ 70-73, 153-54.) Hitchen testified that Faldetta "did not tell [her] about any criticism" or about LRU3 chassis parts or any other parts. (Hitchen Dep. at p. 164.) Murray also testified that "Faldetta did not tell [him] about any alleged illegal activity or fraud by Lockheed Martin." (Murray Aff. at ¶ 21.) Prior to the discussions with Hitchen and Murray, there is nothing in the record to suggest that Lockheed Martin knew that Faldetta was engaged in activity that reasonably could lead to an FCA action. See Yesudian, 153 F.3d at 742-43; Ramseyer, 90 F.3d at 1523; Robertson, 32 F.3d at 951-52. Moreover, despite having had disagreements with Stine about the rejection of defective parts for approximately a year, Faldetta waited until after he was informed that he would be terminated during the January 1997 RIF, to act upon his beliefs and raise his concerns with Lockheed Martin personnel. (Pl.'s 56.1 Statement at ¶¶ 48, 66; Def.'s Reply 56.1 Statement at ¶¶ 48, 66.) His conduct alone, in rejecting the LRU3 chassis parts and inquiring into why the penetrant inspection had been eliminated, fails to demonstrate that Lockheed Martin was on notice of his protected activities. Nevertheless, because the parties have submitted conflicting testimony concerning whether Faldetta had actually addressed the issue of fraud with Hitchen and Murray, there is a genuine issue of fact with respect to whether Lockheed Martin had notice that Faldetta was acting in furtherance of an FCA action.
To satisfy the final requirement and prevail on a claim under section 3730(h), Faldetta must "show by a preponderance of the evidence that [Lockheed Martin]'s retaliatory actions resulted `because' of [his] participation in a protected activity." S.Rep. No. 345, 99th Cong., 2d Sess. 35 (1986), reprinted in, 1986 U.S.C.C.A.N. 5266, 5300; see McKenzie, 123 F.3d at 944 (quoting same); Luckey, 2 F. Supp.2d at 1056 (quoting same). As previously discussed, Lockheed Martin has provided a legitimate non-discriminatory reason for terminating Faldetta's employment; the closing of the Bronx facility and the resulting January 1997 RIF. Lockheed Martin has sufficiently established that Faldetta would have been terminated even had he not engaged in such conduct, because his function was not needed at the Syosset facility. See Mikes, 889 F. Supp. at 754; see also Luckey, 2 F. Supp.2d at 1057 (finding that plaintiff failed to show causal connection between activities and termination, where employer presented sufficient evidence demonstrating legitimate reasons for plaintiffs termination). In addition, it appears that the termination decision was made prior to the confrontation between Faldetta and Stine and in advance of any discussions he had with Hitchen and Murray. At a minimum, Faldetta knew that he was targeted for termination as early as November of 1996, when he received the WARN Act letter. However, Faldetta contends that the decision to terminate was not finalized until the last minute, as evidenced by the subsequent retention of Kennedy, who initially was notified that he was going to be terminated. He maintains that this could lead a reasonable jury to find that the termination decision was made after Faldetta had complained to Hitchen and Murray. Notwithstanding this timing issue, Faldetta fails to proffer sufficient evidence from which a trier-of-fact could conclude that his discharge was in retaliation for rejecting defective parts and inquiring into the elimination of the penetrant inspection. In particular, his contention that Stine retaliated against him, is both unconvincing and incongruous. Faldetta maintains that Stine retaliated against him because of their confrontations. Yet in support of his age discrimination claims, Faldetta emphasizes that Stine had lauded his qualifications and supported his retention prior to the January 1997 RIF. Logic dictates that Stine's position could only be one or the other, not both. Irrespective of this, there is insufficient evidence in the record from which a reasonable jury could establish a nexus between Faldetta's purportedly protected activities and his discharge. See Hopper, 91 F.3d at 1269-70; Luckey, 2 F. Supp.2d at 1055; see also McKenzie, 123 F.3d at 944 (recognizing that courts have given plaintiff heavier burden when seeking relief under § 3 730(h)). Accordingly, he has failed to satisfy the necessary elements of an action for retaliatory discharge under section 3730(h) of the FCA.
Finally, Lockheed Martin asserts that Faldetta removed proprietary information, in the form of documents and computer disks, in violation of the Employee Proprietary Information and Innovation Agreement and the Employee Separation Checklist that Faldetta executed. Although this argument may have some bearing on the issues of front-pay, back-pay and reinstatement, it has no bearing upon the issues before the Court at this stage of the proceedings. Therefore, the Court declines to address this issue for purposes of resolution of the motion for summary judgment.
III. CONCLUSION
Faldetta has failed to submit sufficient evidence from which a reasonable jury could conclude that Lockheed Martin discriminated against him on the basis of his age. He also has failed to present sufficient evidence, to show that he was discharged in retaliation for engaging in protected activity under the FCA. For the aforementioned reasons, Lockheed Martin's motion for summary judgment is granted in its entirety.