Retaliation Claim Dismissed When Employer Proves It Was Not Aware Of Whistleblowing Activity
A California federal district court recently held that absent evidence that an employer knew of the alleged protected activity, an employee cannot assert a claim under California's whistleblower statute. In United States of America ex rel. Darryn Kelly v. Serco, Inc., the district court ruled in favor of Serco under both the False Claims Act and California's retaliatory discharge provision codified at California Labor Code section 1102.5. The court not only rejected the relator's claims, but it also resolved all issues in the employer's favor on summary judgment.
Plaintiff Darryn Kelly was employed as an analyst by Serco, a federal contractor engaged to upgrade wireless communications systems along the U.S./Mexico border. Mr. Kelly complained to the Department of Homeland Security (DHS) that Serco had been engaging in what he believed to be fraudulent time tracking measures. Kelly claimed employees kept track of their time manually rather than through the required automated system, which resulted in inaccurate and fraudulent reports to the government. Kelly believed these practices violated ANSI 748, which is a set of guidelines that applies to certain government contractors.
Three weeks after raising these concerns, Serco downsized Kelly's division and terminated his employment. Kelly followed by filing a claim under the False Claims Act, arguing that Serco had submitted false claims and records to the government. He also filed a wrongful termination lawsuit against Serco, claiming that Serco terminated him in retaliation for engaging in protected activity.
On October 6, 2014, the Southern California district court granted the defendant's motion for summary judgment, dismissing a total of eight claims brought by Mr. Kelly. The court dismissed the whistleblower claim, because there was no evidence that anyone at Serco was aware of Mr. Kelly's complaint to DHS prior to the termination of his employment. The court determined that without evidence that Serco knew of the alleged protected activity, a causal link could not be inferred solely from the proximity in time between the termination and the protected activity.
For the complete Court's Order, click here US ex rel. Darryn Kelly v. Serco, Inc.
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