JONES v. FALCONWOOD INC.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EDWARD JONES,
Plaintiff,
v.
FALCONWOOD, INC.,
Defendant.
Civil Action No. 23 - 2490 (LLA)
MEMORANDUM OPINION
Plaintiff Edward Jones brings this action against Defendant Falconwood, Inc., alleging
retaliation in violation of the National Defense Authorization Act (“NDAA”), 41 U.S.C. § 4712;
the False Claims Act (“FCA”), 31 U.S.C. § 3730(h); and 42 U.S.C. § 1981. 	ECF No. 1.
Falconwood has filed a motion for summary judgment on all three counts. ECF No. 20. Mr. Jones
has moved for leave to file a surreply, ECF No. 27, which Falconwood opposes, ECF No. 28. For
the following reasons, the court will grant Mr. Jones’s motion for leave to file a surreply and grant
Falconwood’s motion for summary judgment.
I. 	FACTUAL BACKGROUND
A. 	Mr. Jones Joins Falconwood on the PMW 220 Project
Falconwood provides system engineering and IT services to the federal government. ECF
No. 20, at 44 ¶ 2; ECF No. 22-24 ¶ 2.1 It has a contract with the U.S. Navy to provide program
1 When citing ECF Nos. 20, 20-3, 20-8, 20-10 to 20-16, 20-20, 22-11, 22-24, and 25-2, the court
uses the CM/ECF-generated numbers at the top of each page rather than any internal pagination.
Because ECF No. 20-4 lacks internal pagination, the court uses the PDF page number.
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management and logistics services for the PMW 220 Project (the “Project”), which involves a
major Navy procurement system. 	ECF No. 20, at 44-45 ¶¶ 3, 5; ECF No. 22-24 ¶¶ 3, 5.
Falconwood is just “one of many contractors” on the Project. 	ECF No. 20, at 44 ¶ 4; ECF
No. 22-24, at 1-2 ¶ 4. One aspect of the project involves the migration of several Navy business
and logistics systems into a single procurement system. 	ECF No. 20, at 45 ¶ 6; ECF No. 22-24
¶ 6.
Mr. Jones began working for Falconwood as a Senior Program Manager on the Project on
August 17, 2020. ECF No. 20, at 46 ¶ 11; ECF No. 22-24 ¶ 11. He was hired to “support[]” the
Project’s “large-scale migrations and implementations.” ECF No. 20, at 46 ¶ 12; ECF No. 22-24
¶ 12. Senior Consultant Robert Bean was Mr. Jones’s team lead and immediate supervisor, and
both men reported to Program Manager Sue Licatovich. ECF No. 20, at 46 ¶ 15; ECF No. 22-24
¶ 15. Adrienne Williams was the Navy employee in charge of migration efforts for the Project.
ECF No. 20, at 45 ¶ 7; ECF No. 22-24 ¶ 7.
Falconwood routinely assigned new members of the migration team to attend meetings and
take minutes as they learned about the Project and their role, but senior members like
Ms. Licatovich would also take meeting minutes when needed. 	ECF No. 20, at 46 ¶ 16; ECF
No. 22-24 ¶ 16; see ECF No. 20-3, at 10 (Ms. Licatovich testifying that “we have various team
members” take minutes, which are typically no more than a “page-and-a-half” of status updates).
Accordingly, on several occasions, Mr. Jones was “assigned to take meeting minutes.” 	ECF
No. 20, at 46 ¶ 16; ECF No. 22-24 ¶ 16.
On September 22, 2020, Mr. Jones sent an email to “his colleagues” stating that “there was
no need for him ‘to continue performing as an Administrative Assistant’ by taking meeting
minutes.” ECF No. 1 ¶ 27; ECF No. 22-6 ¶ 29. On his telling, because the type of employees who
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perform administrative work “should [make] $20-35 per hour,” and he believed that Falconwood
was charging the Navy $200 per hour for his services, Falconwood was thus overbilling the Navy
by requiring Mr. Jones to conduct administrative tasks. 	ECF No. 22-6 ¶ 27. 	Mr. Jones also
believed that another employee was taking and sending minutes for the same meetings, resulting
in Falconwood “double billing” the Navy. 	Id. ¶¶ 29-30. 	The record does not indicate whether
Mr. Jones told any of his supervisors that, by requiring him to take meeting minutes, Falconwood
was defrauding the Navy. 	See generally ECF Nos. 20-4, 22-6. 	It is undisputed that Mr. Jones
would have attended these meetings whether he had to take minutes or not. 	ECF No. 20, at 46
¶ 16; ECF No. 22-24 ¶ 16.
Given the scale of the Project, Falconwood routinely sent out status reports to a “large
distribution list” that “noted whether specific tasks were ‘on-track,’ ‘at-risk,’ ‘off-track[,]’ or
‘complete.’” 	ECF No. 20, at 45 ¶ 8; ECF No. 22-24, at 2 ¶ 8. 	Falconwood began using these
labels to indicate a task’s status before Mr. Jones was hired. ECF No. 20, at 45 ¶ 8; ECF No. 22-24
¶ 8; see ECF No 20-5 (tagging several tasks as “at risk” or “off track” in an August 5, 2020 status
report sent to dozens of official Navy employee email addresses). And at the time of Mr. Jones’s
hiring, the Navy was already aware that several tasks related to the migration effort were behind
schedule. ECF No. 20-4, at 7, 15; see ECF No. 20, at 47 ¶ 18, ECF No. 22-24 ¶ 18. Falconwood
states that one of its other employees was generally responsible for collecting and presenting the
status reports, also known as “quads.” ECF No. 20, at 45 ¶ 9; ECF No. 22-4 ¶ 9; see ECF No. 20-3,
at 12. 	Mr. Jones alleges that he “too prepared the quad reports.” 	ECF No. 22-24 ¶ 10. 	In
particular, from October 6, 2020 through November 17, 2020, Mr. Jones sent weekly status reports
indicating that several tasks were “at risk” of falling behind schedule and that one task was fully
“off track” and thus would require additional time to be completed. 	ECF No. 1 ¶ 37 & n.3.
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Ms. Licatovich testified in her deposition that “someone in [Mr. Jones’s] role would have . . . been
requested to track down input for the quad report” but that the report would “speak for itself with
regards to” designating a task’s risk level. ECF No. 20-3, at 12-13.
Mr. Jones alleges that on November 21, 2020, he called Falconwood Chief Operating
Officer Travis Jones (“COO Jones”) to complain about two instances of racial harassment. ECF
No. 1 ¶¶ 39-41. First, Mr. Jones reported that Mr. Bean had told him that he was “a member of
the A-Team”—also the name of a television series featuring a Black character named Mr. T—and
then said “just don’t come wearing gold chains like Mr. T!” 	Id. ¶ 39; see ECF No. 20-4, at 17.
Second, Mr. Jones reported that Mr. Bean would “hum and sing the song from the 1970s sitcom
The Jeffersons around” him, which Mr. Jones took as a comparison between himself and “another
African American male, George Jefferson, the actor in the sitcom.” 	ECF No. 1 ¶ 40; see ECF
No. 20, at 116.
Falconwood provides evidence from multiple employees denying that either incident
occurred or was reported. COO Jones stated in his declaration that “Mr. Jones did not report or
complain about Robert Bean’s conduct” or disclose “that Mr. Bean had called him ‘Mr. T’ or sang
the theme song from the Jefferson’s [sic] to him,” ECF No. 20-33 ¶ 5; Mr. Bean testified that he
did “not recall” making any comment about Mr. T or wearing gold chains, ECF No. 20-8, at 10;
Falconwood’s Human Resources Director, Vonda Fields, testified at her deposition that she was
not 	aware 	of 	any 	conversations 	about 	the 	alleged 	incidents, 	ECF 	No. 20-20, 	at 4; 	and
Ms. Licatovich filed a declaration stating that Mr. Jones “never complained to [her] about racial
discrimination [or] harassment” and that she was “unaware of any such complaints or claims raised
by Mr. Jones before his termination to anyone else,” ECF No. 20-22 ¶ 3.
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B. 	Falconwood Removes Mr. Jones from the Project at the Navy’s Direction
On November 23, 2020, Ms. Williams—the Navy employee in charge of the Project’s
migration efforts—sent Ms. Licatovich and Mr. Bean an email requesting that Mr. Jones be
removed from the migration team. ECF No. 20-9. She explained that although “[w]e have given
him a number of assignments, most of [the] results have not come to fruition or [realized] value.”
Id. 	Ms. Williams provided two examples. 	First, she explained that she had asked Mr. Jones to
monitor and report an activity referred to as “BODS” with the “intent” that he would be “the
integration point across the various migrations and the centralized BODS updates occurring.” Id.
During their weekly internal meeting, Mr. Jones did “not have the updates/details for BODS” and
the supervisory project manager reported that “there ha[d] been little interaction with [him].” Id.
Ms. Williams also explained that while the Navy “gets the weekly BODS quad,” or status report
on BODS updates, “directly from” another employee, Mr. Jones would routinely send a “quad on
conversion status labelled [sic] as BODS” that was “not the actual BODS enhancement project.”
Id. Ms. Williams wrote in her email that she “discontinue[d]” Mr. Jones’s BODS chart assignment
“as the info he supplies is already covered” in the existing status reports. Id. Second, Ms. Wiliams
explained that she had assigned Mr. Jones to create a process to reconcile “schedule data coming
from multiple areas,” but because “a process ha[d] not yet been established” after several follow-up
meetings, she was “just reconciling on [her] own.” 	Id. 	In closing, Ms. Williams asked
Ms. Licatovich and Mr. Bean to “let [her] know what need[ed] to happen to bring a replacement
for [Mr. Jones] onboard.” Id.
On December 2, Ms. Licatovich and Mr. Bean provided a ninety-day performance review
to Mr. Jones, which stated:
Edward is smart and hard working but fails to consider what is being
asked by [the] client. Edward is well versed in project management
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best practices but is unable to adapt to a project that is not working
under those processes. The client has expressed dissatisfaction with
his lack of productivity[,] expressing that a task that was to be
delivered weekly had never once been delivered and on BODS he
was only forwarding what [another employee] had delivered, and
his meeting minutes had errors and were lacking detail. 	We
understand that this is a complex project, but for someone at
Edward’s level this lack of performance is unacceptable.
ECF No. 20-10. In the performance review, Falconwood explained that it would be implementing
a thirty-day improvement plan (“PIP”). Id. As grounds for the PIP, Falconwood explained that
the “level of review/audit does not provide what was requested for the client’s immediate need”
and provided a section with specific instructions as to “what is needed/requested.” Id. The PIP
required Mr. Jones to identify and compile date discrepancies across systems and to send the
results to Ms. Williams, Navy contractor Vanessa Marfo, Mr. Bean, and Ms. Licatovich by close
of business the next day, December 3, 2020. Id.; ECF No. 22-24, at 5-6 ¶¶ 26-27.
On December 4, Mr. Jones emailed the results of the assignment to the requested
recipients. 	ECF No. 20-11, at 3-5. 	Mr. Bean responded to the other recipients—excluding
Mr. Jones—with his high-level assessment of Mr. Jones’s performance on the assignment. 	He
noted some “Good” things: that “all four commands were reconciled,” that it was “completed
within a single day,” which “[i]ndicates that” it could routinely be completed between Wednesday
and Friday, and that Mr. Jones had successfully raised some discrepancies. Id. at 2-3. Mr. Bean
also noted some “Bad” and “Okay” things: confusing presentation aspects such as random colors,
highlights, and blank rows; inclusion of items that did not in fact contain any discrepancy; and,
based on a spot-check, “a small number of instances” where Mr. Jones had failed to catch
discrepancies. Id. at 3. Mr. Bean asked Ms. Marfo to provide her own assessment, since she was
likely closer to the work. Id. at 2. Ms. Marfo replied, agreeing that “for the most part,” Mr. Jones
had met “the deliverable request.” 	Id. 	Ms. Williams concurred, noting that “[t]he ask was
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ultimately met but not in fast enough turn[-]around time nor presented in a fashion that we could
quickly come to ground truth on any of these items before our weekly cycle is complete.” 	Id.
Ms. Williams recommended that “this effort stand down” because she did not believe that
Mr. Jones’s repeating this weekly deliverable would “significantly improve our reporting,” and
“in fact, may cause more confusion.” Id.
On December 10, Mr. Jones provided a rebuttal to what he described as “a horrible and
extremely untruthful” performance review. ECF No. 22-11, at 1-2. He attached several exhibits
to support his statement that his work was “remarkable.” 	ECF No. 20-12, at 3. 	Mr. Jones
explained that “although [he] was hired as a Senior Program Manager,” he had “stood up to the
occasion” and completed “even those tasks of being a ‘Secretary’” because he was “a Team
Member.” ECF No. 22-11, at 3; see id. at 4-5 (complaining in response to the PIP that he “spent
the first five weeks performing as a Secretary, and writing, editing[,] and distributing meeting
minute notes”); id. at 6 (explaining that he had spent twenty-five hours per week attending
meetings, and eight hours per week “creating, editing[,] and distributing meeting minute notes”).
Mr. Jones also claimed that, although he lacked knowledge that the reconciliation project for
“auditing data” was supposed to be a weekly project, he “st[ood] ready to listen and accommodate
the Navy Client” and thus was “prepared and willing to provide a weekly ‘Reconciliation’ report.”
Id. at 3.
The next morning, COO Jones emailed Ms. Fields and Ms. Licatovich asking them to
discuss Mr. Jones’s response to his PIP and address the “immense disconnect.” ECF No. 20-13,
at 3. 	Ms. Licatovich explained that she was out “on medical [leave]” and “could counter every
exhibit” of Mr. Jones’s response, “but why?” Id. She later explained that “[t]he problem is now
that the client doesn’t want to give him anything to do” because he would not use the government’s
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project management system, so the team “struggle[d] to give him something useful to do that
[could] be evaluated.” Id. at 2.
On December 14, Ms. Licatovich sent Ms. Fields and COO Jones a comprehensive rebuttal
to each point in Mr. Jones’s response. ECF No. 20-14. She also attached emails from the Navy
and included quotes from messages the Navy had sent her about Mr. Jones, such as:
• 	“He has not acclimated to the team and is disrupting calls with
irrelevant questions, not making pmw220 look good,”
• 	“I am also hearing that he has call[e]d [senior Navy executives]
directly . . . if I hear he goes [over] my chain of command again
I will formally request he be removed,”
• 	“He has no authority and is representing PMW220 in a poor
light.”
Id. 	Ms. Licatovich expressed her concern that Mr. Jones was “not able to adapt to the way our
team works with all of the vendors, Commands, and other stakeholders,” and she asked Ms. Fields
for advice on how to proceed. Id.
After the Navy had requested Mr. Jones’s removal from the Project in late November,
Ms. Licatovich had begun “trying to find him a home.” ECF No. 20-3, at 15-16. On December 22,
Mr. Jones emailed several Navy and Falconwood employees stating that he was “pleased to
announce that [he] ha[d] plenty of bandwidth and available time and skillsets, to assist and to take
on additional work assignments,” and asking the recipients to “consider delegating tasks to [him].”
ECF No. 20-16, at 3-4. Ms. Licatovich responded, asking him to prepare “a white paper on how
to start up a project” by noon on December 29. Id. at 2. She believed that the white paper “could
be helpful for the team” as a “guide on starting up these migrations or projects” given Mr. Jones’s
“good program management knowledge.” 	ECF No. 20-3, at 14. 	Mr. Jones sent a draft on
December 29, and Ms. Licatovich provided a response with “considerable comments” on
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December 30 and asked for a revised version by close of business on December 31. 	See ECF
No. 20-16, at 2-3. 	On January 4, 2021, having received no response, Ms. Licatovich sent a
follow-up email. 	Id. at 2. 	Mr. Jones responded that Ms. Licatovich’s feedback was “excellent”
and that he would “provide an updated document ASAP.” Id. Ms. Licatovich replied, noting that
Mr. Jones had missed the December 31 deadline and asking whether he had taken leave on that
day. Id.
On January 6, Mr. Jones sent an email titled “Harassment and Hostile Work Environment,”
in which he raised several complaints about feedback from his supervisors—none of which he
connected to his race. 	See ECF No. 20-19. 	In the email, Mr. Jones disputed Falconwood’s
statement in the PIP that he had failed to complete certain projects on time, id. at 1, took issue with
Ms. Licatovich’s “look[ing] upon” him “as being an employee that inconsiderately ups and takes
PTO without informing his supervisor,” id. at 3, and argued that his supervisors had wrongly
concluded in his PIP that his meeting minutes were “full of errors” and that the Navy client was
frustrated with his “lack of productivity,” id. at 5. 	Mr. Jones then stated that “[d]ue to these
constantly harassing tactics by Falconwood, [he was] now part of a hostile work environment” and
“[was] constantly being harassed.” Id. at 5. He expressed his “hope that . . . providing notification
of this hostile work environment” would “result in Falconwood offering classes in ‘Harassments’,
‘Race Relations’, ‘Bullying’, etc.” Id. Mr. Jones closed by stating that he “hope[d] that” he would
not be “retaliated against” by raising these “concerns about ‘Harassments’, ‘Race Relations’,
‘Bullying’, etc.” Id.
C. 	Falconwood Reassigns Mr. Jones, Then Terminates Him
Around January 14, Ms. Licatovich reassigned Mr. Jones to work with Reggie Scott in
Falconwood’s Risk Management Department because she “thought maybe [Mr. Jones] could work
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well at risk because it’s very formulaic in nature” and because Mr. Scott was “swamped and he
needed a lot of help.” ECF No. 20, at 54 ¶ 49; ECF No. 22-24 ¶ 49; see ECF No. 20-23. Mr. Bean
monitored Mr. Jones’s performance on the new assignment, and he responded to one of
Mr. Jones’s emails containing a draft status report, asking Mr. Jones to “[r]eview for redundant
status item[s]” and “for items that have been completed,” noting that “[t]here were quite a few
tasks that became completed this month” but were “not marked as complete,” reminding him to
remove items “marked as 100% from a previous” status update, and instructing him to be “mindful
of spelling and punctuality.” 	ECF No. 20-24, at 2-3. 	Mr. Bean forwarded this feedback to
Ms. Licatovich “for [her] awareness and to also continue to document [Mr. Jones’s] performance.”
Id. at 2.
One part of Mr. Jones’s responsibilities under Mr. Scott was updating a “[r]isk [r]egist[er]”
and related slide deck in advance of periodic status meetings that happened at noon. 	ECF
No. 20-23; see ECF No. 20-25, at 4. 	At 8:40 a.m. on the morning of one of those meetings in
March 2021, Mr. Scott sent Mr. Jones the updated “[r]isk [r]egister” report to use “going forward.”
ECF No. 20-25, at 5. At 11:10 a.m., Mr. Jones responded to ask for a copy of the report that the
team had been discussing during their morning meeting, which had run from 9:00 a.m. to
11:07 a.m., and he promised to update his weekly slide deck and “send it back to [Mr. Scott] and
the team between 11:30 and 11:45 a.m.” Id. at 4-5; see ECF No. 22-17, at 2 (Mr. Jones forwarding
his email chain with Mr. Scott to Ms. Licatovich and others). 	Mr. Scott responded with the
relevant information two minutes later, at 11:12 a.m. ECF No. 20-25, at 4. Mr. Jones then sent a
response, carbon-copying another employee, which stated: “Received document 11:12 a.m.,
5 minutes after asking for it. 	May or may not be finished by 12:00 noon.” 	Id. 	Mr. Scott sent
Mr. Jones a follow-up email at 11:53 a.m., telling him that the “stakeholder [was] waiting” and
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asking whether the slide deck was ready. 	Id. at 3. 	Mr. Jones replied to the full team at
11:58 a.m.—stakeholders included—stating that he “d[id] not have the deck ready,” ECF
No. 22-24 ¶ 55, because of “[Mr. Scott’s] delayed delivery, and [because Mr. Scott’s] emails were
not helpful,” ECF No. 22-17, at 2. 	Mr. Jones stated that “Reggie has hindered my process in
delivering the Deck” and appears to have attached his entire chain of emails from the morning to
excuse the fact that he did not have the slide deck ready. ECF No. 22-17, at 2; see ECF No. 22-24
¶ 55. 	Mr. Jones replied all again at 12:05 p.m., saying “nd.” 	ECF No. 22-16, at 2; see ECF
No. 20-3, at 17-18; ECF No. 20-25, at 3. Another employee responded to the email, saying that
“[n]o attachments came through on this.” ECF No. 20-25, at 2; ECF No. 22-16, at 1. Mr. Scott
then updated the report himself and sent it at 12:22 p.m. with an apology that “our team could not
have these risks available for the meeting.” ECF No. 20-26. At 12:32 p.m., Mr. Jones again sent
an email to all of the stakeholders at the meeting, stating “Here we go” and apparently attaching
his draft. 	ECF No. 20-25, at 2; see ECF No. 22-4, at 18. 	Mr. Scott forwarded that email to
Ms. Licatovich and Mr. Bean, with the caption “Edward’s submission to stakeholders.” 	ECF
No. 20-25, at 2.
At 12:33 p.m., Ms. Licatovich sent an email to Mr. Jones requesting that he “not call out
team members in a blast email” and calling his earlier email “inappropriate.” ECF No. 20, at 55
¶ 56; ECF No. 22-24 ¶ 56; see ECF No. 22-17. Mr. Jones responded by calling Mr. Scott “a bully”
because he did “not listen to [Mr. Jones’s] input at times,” and he went on to explain that his “point
to Reggie” was that he had delayed delivery of the slide deck by holding onto it. ECF No. 22-17,
at 1.
That 	afternoon, 	Ms. Licatovich 	emailed 	Ms. Fields 	and 	carbon-copied 	COO Jones,
explaining that “[i]t has become increasingly difficult for us to work with [Mr. Jones] because he
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“is not able to communicate with clients or other demands,” “requires inordinate amounts of
coaching for the simplest of tasks,” “is unable to perform quick turn actions” as shown by his
failure to deliver the slide deck that morning, and “[w]hat he did deliver was full of errors and not
usable.” 	ECF No. 20, at 55-56 ¶ 58; ECF No. 22-24 ¶ 58; see ECF No. 22-18. 	Ms. Licatovich
informed Ms. Fields and COO Jones that Mr. Scott “had to do the slides himself and send them
late” and that Mr. Jones had called Mr. Scott a “bully.” ECF No. 20, at 55-56 ¶ 58; ECF No. 22-24
¶ 58; see ECF No. 22-18. She concluded that “Edward is reflecting poorly on Falconwood,” that
there was “no requirement for his position,” and that “[h]e needs to go.” Id. Ms. Licatovich stated
that COO Jones and Ms. Fields should already have Ms. Williams’s previous email asking that
Mr. Jones be removed from the Project. ECF No. 20, at 55-56 ¶ 58; ECF No. 22-24, at 12 ¶ 58;
see ECF No. 22-18.
The next day, March 11, Ms. Licatovich provided additional documentation of Mr. Jones’s
performance issues, “describ[ed] their efforts to find [Mr. Jones] a suitable position after
Ms. Williams requested his removal from the Navy migrations team,” and noted that Mr. Scott
and Mr. Bean had “both really tried to help him.” ECF No. 20, at 56 ¶ 59; ECF No. 22-24 ¶ 59.
COO Jones approved Mr. Jones’s termination later that day, ECF No. 20 ¶ 60; ECF No. 20-30;
ECF No. 22-24 ¶ 60, and Falconwood formally terminated Mr. Jones on March 15, ECF
No. 22-19; ECF No. 22-24 ¶ 61. Falconwood did not replace Mr. Jones after his termination. ECF
No. 20, at 56 ¶ 62; ECF No. 22-24 ¶ 62.
II. 	PROCEDURAL HISTORY
Mr. Jones filed a complaint with the Office of the Naval Inspector General (“OIG”) on
July 18, 2023. 	ECF No. 20, at 56 ¶ 63; ECF No. 22-24 ¶ 63; see ECF No. 22-20 (email dated
July 18, 2023 “filing a complaint with” OIG on behalf of Mr. Jones). In his complaint, Mr. Jones
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argued that Falconwood terminated him for reporting that “Falconwood’s various projects were ‘at
risk’ and ‘off track’ and therefore grossly mismanaged,” and for “rais[ing] concerns” about
Falconwood overbilling the Navy for his services. ECF No. 22-20, at 8.
On August 23, 2025, Mr. Jones filed suit alleging retaliation in violation of the NDAA
(Count I), retaliation under the FCA (Count II), and retaliation for complaining about race
discrimination (Count III). 	ECF No. 1. 	Following discovery, Falconwood filed a motion for
summary judgment on all claims, ECF No. 20, which is fully briefed, see ECF Nos. 20, 22, 25.
Mr. Jones has also moved for leave to file a surreply, ECF No. 27, which Falconwood opposes, ECF
No. 28.
III. 	LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, “[a] party is entitled to summary judgment only
if there is no genuine issue of material fact and judgment in the movant’s favor is proper as a matter
of law.” Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (quoting
Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006));
see Fed. R. Civ. P. 56(a). A material fact is one which “might affect the outcome of the suit under
the governing law,” and a “dispute about a material fact is ‘genuine’” when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). 	At summary judgment, the moving party bears the burden of
demonstrating “the absence of a genuine issue of material fact” in dispute, Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986), while the nonmoving party must present specific facts supported by
materials in the record that would be admissible at trial and that could enable a reasonable jury to
find in its favor, see Liberty Lobby, 477 U.S. at 248; Allen v. Johnson, 795 F.3d 34, 38-39
(D.C. Cir. 2015).
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“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150-51 (2000) (quoting Liberty Lobby, 477 U.S. at 255); see Burley v.
Nat’l Passenger Rail Corp., 801 F.3d 290, 295-96 (D.C. Cir. 2015). Accordingly, “[t]he evidence
of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”
Tolan v. Cotton, 572 U.S. 650, 651 (2014) (per curiam) (alteration in original) (quoting Liberty
Lobby, 477 U.S. at 255). 	However, the nonmoving party must establish more than “[t]he mere
existence of a scintilla of evidence in support of [his] position,” Liberty Lobby, 477 U.S. at 252,
and he may not rely on “mere allegations” or conclusory statements, Equal Rts. Ctr. v. Post Props.,
Inc., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011) (quoting Sierra Club v. Env’t Prot. Agency, 292
F.3d 895, 8999 (D.C. Cir. 2002)). 	“If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” 	Liberty Lobby, 477 U.S. at 249-50 (citations
omitted).
IV. 	DISCUSSION
Mr. Jones raises overlapping retaliation claims under the NDAA, FCA, and Section 1981,
arguing that Falconwood removed him from the Project in November 2020 and terminated his
employment in March 2021 because he engaged in protected activities. 	ECF No. 1 ¶¶ 62-82.
Falconwood raises one defense specific to the NDAA, argues that none of Mr. Jones’s myriad
complaints about his time at the company are protected under any of the three statutes, and
contends that even if Mr. Jones could establish a prima facie case of retaliation, the company
removed him and terminated him for legitimate, non-retaliatory reasons. 	See generally ECF
No. 20. The court begins by addressing two threshold issues—Mr. Jones’s request for leave to file
a surreply, ECF No. 27, and Falconwood’s argument that the court should set aside Mr. Jones’s
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affidavit, ECF No. 22-6, under the sham affidavit doctrine, ECF No. 25, at 2-4. 	The court then
addresses Falconwood’s arguments for summary judgment.
A. 	Threshold Issues
1. 	Mr. Jones’s proposed surreply
While surreplies are “generally disfavored,” Kifafi v. Hilton Hotels Ret. Plan, 736 F. Supp.
2d 64, 69 (D.D.C. 2010), aff’d, 701 F.3d 718 (D.C. Cir. 2012), “[i]t is within the court’s authority
to grant leave to file a sur-reply when ‘the party making the motion would [otherwise] be unable
to contest matters presented to the court for the first time in the opposing party’s reply,’” Lopez v.
Council on Am.-Islamic Rels. Action Network, Inc., 657 F. Supp. 2d 104, 108 (D.D.C. 2009)
(quoting Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.D.C. 2001)), aff’d, 383 F. App’x 1
(D.C. Cir. 2010) (per curiam). “[A] surreply is not a vehicle for rehashing arguments that have
already been raised and briefed by the parties.” Crummey v. Soc. Sec. Admin., 794 F. Supp. 2d 46,
63 (D.D.C. 2011), aff’d, No. 11-5231, 2012 WL 556317 (D.C. Cir. Feb. 6, 2012) (per curiam).
For a surreply to be appropriate, the opposing party’s reply must have raised “truly new”
arguments. THEC Int’l-Hamdard Cordova Grp.-Nazari Constr. Co., Ltd. Joint Venture v. Cohen
Mohr, LLP, 301 F. Supp. 3d 1, 6 (D.D.C. 2018) (quoting U.S. ex rel. Pogue v. Diabetes Treatment
Ctrs. of Am., Inc., 238 F. Supp. 2d 270, 277 (D.D.C. 2002)). The court also considers “whether
the movant would be unduly prejudiced were leave to be granted.” Doe v. Exxon Mobil Corp., 69
F. Supp. 3d 75, 85 (D.D.C. 2014) (quoting Banner Health v. Sebelius, 905 F. Supp. 2d 174, 187
(D.D.C. 2012)). Ultimately, “[t]he decision to grant or deny leave to file a sur-reply is committed
to the sound discretion of the court.” Flynn v. Veazey Constr. Corp., 310 F. Supp. 2d 186, 189
(D.D.C. 2004).
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Mr. Jones fails to make any argument that leave to file a surreply is warranted. 	ECF
No. 27; see ECF No. 28, at 1 & n.1. 	Rather, he just attaches what appears to be his proposed
surreply, ECF No. 27-1, and a “new” exhibit, ECF No. 27-2. 	The court is disinclined to grant
leave to a movant who, appearing through counsel, failed to argue that he satisfied the applicable
legal standard. Nevertheless, the court concludes that Mr. Jones’s surreply may aid the court in its
resolution of Falconwood’s argument—raised for the first time in the reply brief—that the court
should disregard Mr. Jones’s affidavit under the sham affidavit doctrine. See ECF No. 25, at 2-4.
At the very least, consideration of the surreply would not prejudice Falconwood because the
surreply “does not introduce any new facts that would change the outcome” of Falconwood’s
motion for summary judgment. Tsai v. United States, No. 23-CV-2392, 2025 WL 823891, at *4
(D.D.C. Mar. 14, 2025) (quoting Amissah v. Gallaudet Univ., No. 19-CV-679, 2022 WL 4016592,
at *7 (D.D.C. Sep. 2, 2022)). 	The court will accordingly exercise its discretion to grant
Mr. Jones’s motion for leave to file a surreply.
2. 	Mr. Jones’s affidavit
Falconwood also argues that the court should reject Mr. Jones’s affidavit, ECF No. 22-6,
under the “sham affidavit” doctrine, ECF No. 25, at 2-4. The sham affidavit doctrine “precludes
a party from creating an issue of material fact by contradicting prior sworn testimony unless the
‘shifting party can offer persuasive reasons for believing the supposed correction’ is more accurate
than the prior testimony.” Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (quoting
Pyramid Sec. Ltd. v. IB Resol., Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991)). “At the same time,
however, courts must take care not to invade the province of the jury by disregarding affidavits or
declarations based on non-dispositive inconsistencies or a witness’s better recollection of facts
after a deposition.” Yazzie v. Nat’l Org. for Women, 712 F. Supp. 3d 56, 84 (D.D.C. 2024); see
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Richardson v. Petasis, 160 F. Supp. 3d 88, 105 n.17 (D.D.C. 2015) (noting that, where the affiant
later “recall[ed] something that he did not mention or recall during his deposition,” there was no
“contradiction requiring exclusion from consideration”); U.S. Dep’t of Just. v. Daniel Chapter
One, 650 F. App’x 20, 24 (D.C. Cir. 2016) (explaining that the district court “may have misapplied
the [sham affidavit] rule” because the “supplemental declaration presented new information rather
than contradictory information”).
In 	support 	of 	its 	argument 	that 	the 	court 	should 	disregard 	Mr. Jones’s 	affidavit,
Falconwood points out inconsistencies between Mr. Jones’s statements in the affidavit and his
prior statements. 	For example, Mr. Jones states in his affidavit that Mr. Bean told him that
Falconwood had billed the Navy $400,000 for his services. 	ECF No. 22-6 ¶¶ 26-27. 	That
statement directly conflicts with Mr. Jones’s deposition testimony because, when asked for the
basis for his statement that Falconwood had billed the Navy $400,000 for his services, he merely
stated that it was his “opinion” and “belief” based on his understanding that “other senior members
have been billed out at $175 an hour” and that Falconwood’s documented billing rate of $104 per
hour for him “just doesn’t make sense.” ECF No. 20-4, at 11. And in Mr. Jones’s interrogatory
responses, when asked to list any individuals with knowledge of the allegations in his complaint,
Mr. Jones did not list Mr. Bean. See ECF No. 25-2, at 2-10.
But in other disputed parts of the affidavit, Mr. Jones appears to merely state something he
had not previously mentioned. For example, Mr. Jones avers for the first time in his affidavit that
former Falconwood employee Francis Hetherington reviewed an audit Mr. Jones had prepared
concerning project timelines and due dates and told Mr. Jones that it looked like Falconwood had
committed fraud. 	ECF No. 22-6 ¶ 16. 	But in his interrogatory response, despite listing
Mr. Hetherington as someone who would have personal knowledge of the facts underlying his
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complaint, Mr. Jones nowhere suggested that Mr. Hetherington had ever said anything of the sort.
ECF No. 25-2, at 7. Instead, Mr. Jones quoted a line from an email from Mr. Hetherington that
Mr. Jones repeats elsewhere in his pleadings, in which Mr. Hetherington lamented that one of the
“struggles” with the Project is “that there is no sense of a project lifecycle” and that “schedule
development has no reliable info on which to base deliverables.” 	ECF No. 1 ¶ 36; see ECF
No. 25-2, at 7. 	To be sure, it strains credulity to think that Mr. Jones would have repeated
Mr. Hetherington’s direct quote about the Project being poorly executed several times throughout
this case, see ECF No. 20-32, at 4 (Mr. Jones’s administrative complaint); ECF No. 22, at 4, 15;
ECF No. 22-11; ECF No. 25-2, at 7, without mentioning the fact that Mr. Hetherington had also
told him that he believed Falconwood was committing fraud. But at summary judgment, the court
is reticent to invade the province of the jury by making credibility determinations. See Yazzie, 712
F. Supp. 3d at 84-85. Accordingly, the court declines to set aside any portion of the affidavit.
B. 	The Merits
1. 	National Defense Authorization Act (Count I)
The NDAA makes it unlawful for a federal contractor to discharge or otherwise retaliate
against an employee for
disclosing . . . information that the employee reasonably believes is
evidence of gross mismanagement of a Federal contract or grant, a
gross waste of Federal funds, an abuse of authority relating to a
Federal contract or grant . . . or a violation of law, rule, or regulation
related to a Federal contract (including the competition for or
negotiation of a contract) or grant.
41 U.S.C. § 4712(a). 	An employee who believes that he has experienced retaliation under the
NDAA “may submit a complaint to the Inspector General of the executive agency involved.” Id.
§ 4712(b)(1). Such a complaint imposes a mandatory duty on the Inspector General: within 180
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days—unless the parties agree to an extension—the Inspector General either “shall make a
determination” that the complaint is frivolous, fails to state a claim, or has previously been
addressed in another proceeding, or he “shall” investigate the complaint and submit a report of the
findings to the complainant, contractor, and the head of the agency. Id. § 4712(b)(1)-(2). Once
the agency head receives the report, he has thirty days to either issue an order denying relief, or, if
he determines that there is “a sufficient basis to conclude that” retaliation occurred, to order “one
or more” of the enumerated remedies. Id. § 4712(c). Finally, if the agency head issues an order
denying relief or 	“has 	not issued an order 	within 210 days after 	the submission of a
complaint . . . the complainant shall be deemed to have exhausted all administrative remedies with
respect to the complaint, and the complainant may bring” suit in federal court. Id. § 4712(c)(2).
Falconwood argues that the court should grant summary judgment on Mr. Jones’s NDAA
claim for failure to exhaust. 	ECF No. 20, at 12-13. 	The court agrees. 	Mr. Jones filed his
administrative complaint with the Naval Inspector General by letter dated July 18, 2023. 	ECF
No. 20-32; see ECF No. 20, at 56 ¶ 63; ECF No. 22, at 12; ECF No. 22-24 ¶ 63. And he filed this
suit on August 25, 2023, only thirty-eight days later. ECF No. 1. Because there was no final order
denying relief, and because Mr. Jones commenced this action before the 210-day waiting period
had elapsed, Mr. Jones has failed to comply with the NDAA’s prerequisite for filing suit.
Mr. Jones does not dispute that he failed to exhaust his administrative remedies under the
NDAA. Instead, he states that he was “unaware of any prohibition from filing the NDAA claim
too early” and that Falconwood “suffered no prejudice” from his failure to exhaust because
“extensive discovery was conducted” on his claim. ECF No. 22, at 12. But the “prohibition” on
“filing too early” is neither ambiguous nor waivable. The NDAA, in a section titled “Exhaustion
of Administrative Remedies,” expressly states that only “[i]f” the agency head issues an order
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denying relief “or has 	not issued an 	order 	within 210 days after 	the submission of 	a
complaint . . . the 	complainant 	shall 	be 	deemed 	to 	have 	exhausted 	all 	administrative
remedies . . . and may bring” a lawsuit in district court. 41 U.S.C. § 4712(c)(2). That language
makes clear that exhausting administrative remedies is a mandatory precursor to filing suit.
The NDAA’s administrative scheme, which requires the agency to act on administrative
complaints within a set time frame, reinforces the mandatory nature of the exhaustion requirement.
See supra pp. 18-19; see also Hidalgo v. Fed. Bureau of Investigation, 344 F.3d 1256, 1259
(D.C. Cir. 2003) (recognizing an exhaustion requirement in FOIA, despite the absence of express
language, 	where 	the 	scheme 	imposed 	mandatory 	response 	requirements 	on 	the 	agency).
“[P]ermitting 	[Mr. Jones] 	to 	pursue 	judicial 	review 	without 	the 	benefit 	of 	prior 	[OIG]
consideration would undercut ‘the purposes of exhaustion, namely, “preventing premature
interference with agency processes, . . . afford[ing] the parties and the courts the benefit of [the
agency’s] experience and expertise, . . . [or] compil[ing] a record which is adequate for judicial
review.’” Hidalgo, 344 F.3d at 1259 (fourth through ninth alterations in original) (quoting Ryan
v. Bentsen, 12 F.3d 245, 247 (D.C. Cir. 1993)). 	And courts in this district have consistently
recognized that the NDAA contains a mandatory administrative exhaustion requirement. Angeline
v. ATCS, PLLC, No. 22-CV-1668, 2025 WL 3703770, at *4 (D.D.C. Dec. 22, 2025) (recognizing
that a complainant may bring a claim under the NDAA “after exhausting administrative
remedies”); Arawole v. Master Sec. Co., LLC, No. 23-CV-2413, 2025 WL 947477, at *8
(D.D.C. Mar. 28, 2025) (same); Wykosky v. ATCS, PLLC, No. 22-CV-1881, 2023 WL 4547992,
at *4 (D.D.C. July 14, 2023) (same); Scarlett v. Nat’l Sci. Found. Off. of Inspector Gen., No. 22-
CV-188, 2022 WL 17830227, at *6 (D.D.C. Dec. 21, 2022) (same); 	Sargent v. Pompeo,
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No. 19-CV-620, 2020 WL 5505361, at *10 (D.D.C. Sep. 11, 2020) (same). 	Mr. Jones raises no
statutory argument to the contrary.
Mr. Jones next points out that, in the period between when he filed his complaint and when
Falconwood filed its motion for summary judgment, OIG “administratively closed” his complaint.
ECF No. 22, at 12. To the extent this is an argument that Mr. Jones exhausted his claim, it fails
because an administrative dismissal is not a “order denying relief.” See 41 U.S.C. § 4712(c)(2).
Rather, OIG’s email indicates that the matter was being dismissed at least in part because Mr. Jones
had failed to prosecute his complaint. 	See ECF No. 22-21 (noting that OIG “requested any
additional files or substantiating documents regarding [Mr. Jones’s] allegation of fraud committed
against the government” but “received none”). Indeed, rather than denying relief, OIG provided
another opportunity for Mr. Jones to pursue his administrative remedy. OIG stated that, in light
of his failure to respond, “[a]t present, we see this matter . . . as warranting no additional action
from this office,” but “for this office to continue to review this matter,” Mr. Jones would merely
have to clarify his allegations and provide substantiating documents. 	Id. 	OIG requested that
Mr. Jones provide a response by January 20, 2025, but Mr. Jones declined to do so. Id.
Finally, Mr. Jones requests that the court dismiss his NDAA claim without prejudice and
allow him to file an amended complaint curing his failure to exhaust. ECF No. 22, at 13 n.7. But
the D.C. Circuit has held in a similar context that “the filing of an amended complaint after the
[waiting] period expired cannot cure the failure to exhaust.” Murthy v. Vilsack, 609 F.3d 460, 465
(D.C. Cir. 2010). “[A]llowing [Mr. Jones] to cure his failure to exhaust administrative remedies
by amending his complaint would contravene [the agency’s] investigative duty and undermine
Congress’ policy of encouraging informal resolution.” 	Id. 	The court will accordingly grant
Falconwood summary judgment on Count I.
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2. 	False Claims Act (Count II) and Section 1981 (Count III)
Mr. Jones raises overlapping retaliation claims under the FCA and Section 1981, arguing
that Falconwood removed him from the Project in November 2020 and then terminated him in
March 2021 because he had engaged in protected activity under both statutes. 	See ECF No. 1
¶¶ 70-74, 77-81. The FCA “imposes civil liability on any person who presents false or fraudulent
claims for payment to the Federal Government.” U.S. ex rel. Polansky v. Exec. Health Res., Inc.,
599 U.S. 419, 423 (2023). 	Section 3730(h) of the statute protects “whistleblowers who seek to
expose or to prevent government fraud.” Singletary v. Howard Univ., 939 F.3d 287, 293 (D.C. Cir.
2019). 	Section 1981, meanwhile, “prohibits racial discrimination in the ‘making, performance,
modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship.’” 	Carney v. Am. Univ., 151 F.3d 1090, 1092-93
(D.C. Cir. 1998) (quoting 42 U.S.C. § 1981(b)). 	Section 1981’s cause of action encompasses
claims of retaliation against employees who complain of racial discrimination. CBOCS W., Inc.
v. Humphries, 553 U.S. 442, 446 (2008).
The “familiar McDonnell Douglas burden-shifting framework” applies to retaliation
claims under both the FCA, U.S. ex rel. Schweizer v. Océ N.V., 677 F.3d 1228, 1241 (D.C. Cir.
2012), and Section 1981, see Carney, 151 F.3d at 1092-93. To make out a prima facie claim of
retaliation, “a plaintiff must plead facts showing (i) that [he] engaged in protected activity,
(ii) ‘because of’ which [he] was retaliated against.” Singletary, 939 F.3d at 293 (quoting U.S. ex
rel. Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998)). 	“To satisfy the second
element, a plaintiff must further allege (a) that the employer knew [he] was engaged in protected
activity, and (b) that the retaliation was motivated ‘at least in part’ by [his] protected activity.” Id.
(quoting Yesudian, 153 F.3d at 736).
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Once a plaintiff has established a prima facie case of retaliation, “the burden then shifts to
the employer to articulate a legitimate, nondiscriminatory reason for its action.” 	Wheeler v.
Georgetown Univ. Hosp., 812 F.3d 1109, 1114 (D.C. Cir. 2016). “If the employer does this, the
burden then shifts back to the plaintiff, who must be afforded a fair opportunity to show that the
employer’s stated reason for its actions was in fact pretext for unlawful discrimination.” 	Id.
Importantly, the D.C. Circuit has held that “where an employee has suffered an adverse
employment action and an employer has asserted a legitimate, non-discriminatory reason for the
decision, the district court need not—and should not—decide whether the plaintiff actually made
out a prima facie case under McDonnell Douglas.” Brady v. Off. of Sergeant at Arms, 520 F.3d
490, 494 (D.C. Cir. 2008). Instead, “the district court must resolve one central question: Has the
employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted
non-discriminatory reason was not the actual reason and that the employer intentionally [retaliated]
against the employee on the basis of [the protected characteristic]?” Id.
To show that an employer’s stated reasons were pretextual, a plaintiff may cite “the
employer’s better treatment of similarly situated employees outside the plaintiff’s protected group,
its inconsistent or dishonest explanations, its deviation from established procedures or criteria, or
[its] poor treatment of other employees in the same protected group . . . or other relevant evidence
that a jury could reasonably conclude evinces an illicit motive.” 	Walker v. Johnson, 798 F.3d
1085, 1092 (D.C. Cir. 2015). In the context of retaliation, “[t]he temporal proximity between an
employee’s protected activity and [his] employer’s adverse action is a common and often probative
form of evidence,” id., although temporal proximity without more is insufficient to survive
summary judgment, see Minter v. District of Columbia, 809 F.3d 66, 71-72 (D.C. Cir. 2015).
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Falconwood argues it is entitled to summary judgment because Mr. Jones’s claims fail at
the prima facie stage—chiefly, it argues that Mr. Jones failed to establish that he engaged in
activities protected by the FCA or Section 1981. ECF No. 20, at 23-25, 29-31. It also argues that
even if Mr. Jones has made out a prima facie case under either statute, Falconwood had legitimate,
non-retaliatory 	reasons 	for 	removing 	Mr. Jones 	from 	the Project 	in 	November 2020 	and
terminating him in March 2021. Id. at 25-28, 33-34. Following Brady’s mandate, the court begins
and ends with the question whether Mr. Jones has offered evidence sufficient for a jury to
disbelieve Falconwood’s proffered legitimate reasons for its decisions.
a. 	November 2020 reassignment
Falconwood removed Mr. Jones from the Project’s migration team on November 23, 2020,
two days after Mr. Jones allegedly reported incidents of racial harassment to COO Jones and six
days after Mr. Jones’s most recent report stating that aspects of the project were “off track” and
“at risk.” ECF No. 22-6 ¶¶ 42-43; see ECF No. 20, at 48 ¶ 23; ECF No. 22-24 ¶ 23. Falconwood
argues that, even if Mr. Jones were able to establish that any of his reports were protected activities
under the FCA or Section 1981, the company had a legitimate, non-retaliatory reason for removing
him from the project: its client, the Navy, had demanded his removal due to his deficient
performance. 	ECF No. 20, at 25-28, 33-34; see supra p. 5; ECF No. 20-9 (Ms. Williams
explaining that “[w]e have given him a number of assignments, [but] most of [the] results have not
come to fruition or [realized] value” and asking for Falconwood to “reassign” Mr. Jones).
Falconwood’s decision to remove Mr. Jones from the migration team because the Navy
client was unhappy with his performance is both legitimate and non-retaliatory. 	As Mr. Jones
admits, Ms. Licatovich “complie[d]” with Ms. Williams’s decision “to take Jones off the team.”
ECF No. 22, at 14. And Falconwood’s knowledge of its client’s dissatisfaction with Mr. Jones’s
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performance is well-supported by the record. 	See ECF No. 20-8, at 7 (Mr. Bean’s deposition
testimony that Ms. Williams was unhappy with Mr. Jones’s performance); ECF No. 20-10
(explaining in Mr. Jones’s December 2020 performance review that “[t]he client has expressed
dissatisfaction with his lack of productivity” and that he “fails to consider what is being asked by
[the] client”); ECF No. 20-13 (Ms. Licatovich explaining in another December 2020 email that
“the problem” was that “the client doesn’t want to give him anything to do”); ECF No. 20-14
(Ms. Licatovich listing several messages directly from the client complaining about Mr. Jones’s
performance and attitude in a December 2020 email to Ms. Fields); see ECF No. 20-15 (email
from Ms. Licatovich to Ms. Fields worrying that “the Government is having a meeting today and
they are not happy that Edward is still around”).
Rather than responding to the undisputed fact that Falconwood removed him from the
Project at the Navy’s request, Mr. Jones mostly argues that Falconwood has failed to establish that
he had any “serious performance issues” before the Navy requested his removal. 	ECF No. 22,
at 17. But this argument, and the parties’ miscellaneous disputes about line items in Mr. Jones’s
December 2020 performance review, are immaterial. Whether or not Falconwood believed that
Mr. Jones’s performance was so deficient as to warrant his removal from the Project, the
undisputed record shows that “Ms. Williams, the Navy employee in charge of the migration
effort[,] was not happy with [Mr. Jones’s] performance” and accordingly requested his removal.
ECF No. 20, at 48 ¶ 22; ECF No. 22-24 ¶ 22. Accordingly, Falconwood is entitled to summary
judgment with respect to Mr. Jones’s November 2020 reassignment because—as the parties
agree—its proffered reason for the move was its actual reason for the move: Falconwood’s client
requested Mr. Jones’s removal based on its complaints about his deficient performance.
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b. 	March 2021 termination
Mr. Jones also argues that Falconwood terminated his employment on March 15, 2021
because he engaged in activities protected by the FCA and Section 1981. ECF No. 1 ¶¶ 71, 79.
Falconwood has again proffered a legitimate explanation. Specifically, after the Navy asked that
Mr. Jones be removed from the Project’s migration team, Ms. Licatovich tried to find Mr. Jones
another “home” within the company instead of terminating him. ECF No. 20-3, at 15. But on his
new team, Mr. Jones still required “inordinate amounts of coaching for the simplest of tasks,” was
“unable to perform quick turn actions,” and “[w]hat he did deliver was full of errors and not
usable.” 	ECF No. 22-18. 	In addition, on March 10, Mr. Jones sent an “inappropriate” 	email
blaming his supervisor for his own tardiness on a chain that included Navy client stakeholders,
ECF No. 20, at 55 ¶ 56; ECF No. 22-24 ¶ 56; see ECF No. 22-17, causing Ms. Licatovich to send
an email to Human Resources and COO Jones in which she explained that Mr. Jones was unwilling
to accept criticism, “reflected poorly on Falconwood,” and, since he was unable to work on the
project for which he had been hired, “need[ed] to go,” ECF No. 20, at 55-56 ¶ 58; ECF No. 22-24,
at 12 ¶ 58; see ECF No. 22-18.
Mr. Jones points out several perceived errors in Falconwood’s assessments of his
performance to argue that his termination was pretextual. See ECF No. 22, at 22-24, 26-28. None
overcomes the significant evidence confirming that Falconwood fired him for legitimate
performance-related reasons. First, Mr. Jones suggests that Falconwood pretextually placed him
on a PIP because, although the company cites a fifty-page set of meeting minutes as an example
of his inability to understand work assignments, it did not produce the meeting minutes in
discovery. ECF No. 22, at 23. But Falconwood’s failure to produce this evidence does not indicate
that Falconwood lied about this minor detail. 	To the contrary, Ms. Licatovich testified at her
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deposition that Mr. Jones had presented her with a fifty-page set of meeting minutes when
“[m]eeting minutes were generally two pages[, n]ot 50.” ECF No. 20-3, at 19. Second, Mr. Jones
suggests that because Mr. Bean testified that counseling “did help” his performance, he must have
sufficiently improved during and after his PIP period such that termination could not have been
warranted for non-retaliatory reasons. 	ECF No. 22, at 23. 	But Mr. Bean’s statement that
Mr. Jones showed some improvement after receiving counseling is entirely consistent with
Ms. Licatovich’s stated rationale that Mr. Jones still required “inordinate amounts of coaching for
the simplest of tasks.” 	ECF No. 22-18; see ECF No. 20, at 55-56 ¶ 58; ECF No. 22-24 ¶ 58.
Similarly, 	Mr. Jones 	suggests 	that 	Ms. Licatovich’s 	deposition 	testimony—in 	which
Ms. Licatovich acknowledged that Mr. Jones did send a risk registry report on March 10, although
not “in time” for Mr. Scott to use it for the meeting, see ECF No. 22-4, at 18-19—conflicts with
her stated reason for terminating him for failing to complete the risk registry report on March 10,
ECF No. 22, at 27. But the record reflects that Mr. Jones did not send the report in time for the
meeting, necessitating Mr. Scott to send it to the stakeholders late and with an apology. See supra
pp. 10-11.
But even if a jury could credit any of Mr. Jones’s points, such quibbles cannot defeat
summary judgment. In cases like this where alleged pretext arises from the parties’ disagreement
about a subordinate employee’s performance, courts must be “vigilant in smoking out unlawful
motives while remaining ‘reluctan[t] to become involved in the micromanagement of everyday
employment decisions.’” Allen, 795 F.3d at 41 (alteration in original) (quoting Forman v. Small,
271 F.3d 285, 291 (D.C. Cir. 2001)). “‘If the employer’s stated belief about the underlying facts
is reasonable in light of the evidence,’ and is honestly held, there ordinarily is no basis to put the
case to a jury, even if the employee disagrees with the discretionary decision the employer made.”
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Id. (quoting Brady, 520 F.3d at 495). Here, Ms. Licatovich’s stated beliefs about Falconwood’s
issues with Mr. Jones’s performance are both entirely consistent and eminently reasonable. The
undisputed record confirms that Ms. Licatovich determined that Mr. Jones had routinely missed
deadlines on projects such as the white paper, see supra p. 8-9, and March 10 risk registry report,
see supra pp. 10-11; that he had been removed from the project he had been hired to do at the
client’s request, ECF No. 20-9; see ECF No. 22-24 ¶ 23; and that he was reflecting poorly on the
company by criticizing his supervisor in an email to client stakeholders, ECF No. 20, at 55-56
¶ 58; ECF No. 22-24 ¶ 58; see ECF No. 22-17.
Finally, Mr. Jones argues that a jury could infer pretext under Section 1981 because
Falconwood departed from its policy of investigating racial harassment claims by failing to
investigate his January 6, 2021 email. 	ECF No. 22, at 26-27. 	Falconwood responds that the
January 6 email does not constitute a complaint of racial harassment. 	ECF No. 20, at 31. 	The
court agrees with Falconwood. In the email, Mr. Jones laid out several issues with his supervisors
and stated that, “[d]ue to these constantly harassing tactics by Falconwood, I am now part of a
hostile work environment” and “am constantly being harassed.” ECF No. 1-1, at 4. 	He further
stated his “hope that . . . providing notification of this hostile work environment” would “result in
Falconwood offering classes in ‘Harassments’, ‘Race Relations’, ‘Bullying’, etc.” 	Id. 	But
nowhere in his email does Mr. Jones allege that he was being harassed because of a protected
status—indeed, nowhere does he mention a protected status at all. See generally ECF No. 1-1. To
be sure, Mr. Jones mentions classes on harassment and race relations, but his generic statements
hoping that Falconwood would add programming in the future are insufficient to connect his
complaints of general harassment to racial discrimination actionable under Section 1981. 	See
Balaj v. Turner, 778 F. Supp. 3d 151, 165, 181 (D.D.C. 2025) (concluding that an employee did
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not engage in protected activity by sending an email to her boss that stated “You discriminate me
all time” and “You are being hostile towards me”); see also Coleman v. Potomac Elec. Power Co.,
422 F. Supp. 2d 209, 213-14 (D.D.C. 2006) (agreeing with the defendants that the plaintiff failed
to show “that he was engaged in statutorily protected activity” by complaining about his
evaluation, his supervisors, and harassment because he “fail[ed] to allege that this treatment was
because of any illegal factor” (internal quotation marks omitted)); Lemmons v. Georgetown Univ.
Hosp., 431 F. Supp. 2d 76, 92-93 (D.D.C. 2006) (collecting cases and concluding that the
plaintiff’s harassment claims were insufficient to constitute protected activity under Section 1981
because her complaint “allege[d] harassment generally and generically” and did “not refer to
harassment [or discrimination] based on race or any other protected category” (second alteration
in original) (internal quotation marks omitted)). 	Falconwood reasonably did not construe
Mr. Jones’s email as complaining of racial harassment, so its decision not to conduct an
investigation is not evidence of pretext. 	See ECF No. 22-15 (Ms. Licatovich responding to the
email, with no mention of race, that while she was “sorry” that Mr. Jones felt he was in a “hostile
work environment,” “[r]eviews and questions are common and frequently used companywide”).
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V. 	CONCLUSION
For the foregoing reasons, the court will grant Mr. Jones’s motion for leave to file a
surreply, ECF No. 27, and grant Falconwood’s motion for summary judgment, ECF No. 20. 	A
contemporaneous order will issue.
LOREN L. ALIKHAN
United States District Judge
Date: March 31, 2026
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