United States District Court, E.D. Pennsylvania
Decided June 10, 2014.
LEO GIBNEY, Plaintiff, Pro se, BERWYN, PA.
For EVOLUTION MARKETING RESEARCH, LLC, Defendant: DENNIS M. MULGREW, JR., DRINKER BIDDLE & REATH LLP, PHILADELPHIA, PA.
Hon. Petrese B. Tucker, Chief United States District Judge.
Presently before the Court is Defendant Evolution Market Research, LLC's Motion
to Dismiss the Complaint (Doc. 3), Plaintiff Leo Gibney's Response in Opposition thereto (Doc. 5), and Defendant's Reply (Doc. 8). Upon consideration of the parties' briefs, and for the reasons set forth below, Evolution's Motion to Dismiss will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Leo Gibney (" Plaintiff" ) brings this action against his former employer, Defendant Evolution Market Research, LLC (" Evolution" ), for wrongful termination in violation of the Sarbanes--Oxley Act's (" SOX" ) whistleblower protection provision. Taking the allegations of the Complaint as true, the facts are as follows.
Plaintiff was employed by Evolution, a " marketing research and consulting company" located in Blue Bell, Pennsylvania, between October 2009 and November 7, 2011. (Compl. ¶ ¶ 1-2.) Plaintiff alleges that Evolution terminated his employment after he " report[ed] to Evolution's chief operating officer and general counsel his reasonable belief that a plan approved by [Evolution's] principals would result in the fraudulent billing" of Evolution's client Merck & Co., Inc. (" Merck" ), a " public-traded company to which Evolution was a contractor." (Id. ¶ 3.) Specifically, Plaintiff avers that " Evolution's contract with Merck distinguishes between two types of fees: (1) professional fees; and (2) out-of-pocket fees passed through to Merck." (Id. ¶ 7.) The contract allegedly states that Evolution's professional fees " for quantitative research projects, which have been pre-negotiated and appear on a rate card, must include" professional services such as data collection, data management, and data processing." (Id. ¶ 8.) Plaintiff states that Evolution subcontracted these services out to other companies. (Id. ¶ 9.) However, Plaintiff claims that although these services should be included under professional fees pursuant to the contract, Evolution does not pay its subcontractors for these services under its professional fees; rather, " Evolution improperly passes these costs on to Merck as part of Evolution's 'out-of-pocket' fees, hiding these fees as 'other[,]'" in " clear violation of the contract." (Id.)
Plaintiff states he learned of this improper billing in October 2011 while bidding on a Merck project known as Cogent. (Id. ¶ 10.) Plaintiff was awarded the project, and became the " sole authorized Evolution agent on the Cogent project." (Id.) Plaintiff claims that he entered costs for the Cogent project in accordance with the contract on a Merck website and approved invoices sent to Merck, but that Evolution subsequently " reallocated" the distribution of costs for the project by (1) reducing certain pass-through costs and (2) using those savings to pay other market research vendors for tasks that Evolution was required, under the contract, to perform itself. (Id. ¶ ¶ 11-12.)
Plaintiff maintains that the contract states the fees for these services is already included in Evolution's professional fees; thus, Evolution is required to pay its subcontractors out of its own professional fees. (Id. ¶ 13.) By passing these costs through to Merck as " other," Plaintiff claims Evolution is effectively double billing Merck. Plaintiff further claims that this reallocation was detailed in an Excel spreadsheet created by an Evolution employee; that he was told by Evolution not to modify the costs for the Cogent project on Merck's website after the spreadsheet was created; and that he was subsequently terminated on November 7, 2011, two days after reporting his objections to the reallocation to Evolution's chief operating officer and general counsel. (Id. ¶ ¶ 11, 17-20.)
Plaintiff filed an administrative complaint with the Occupational Safety and Health Administration (" OSHA" ) on January 23, 2012. (Id. ¶ 4.) Plaintiff subsequently filed the instant pro se Complaint in the Eastern District of Pennsylvania on April 1, 2014, averring that OSHA's failure to take action on his administrative complaint within ...