Court Broadly Defines Protected Activity Under California Whistleblower Protection Act

​An employee who alleged that he was fired for disclosing violations of federal law to his supervisor and to a third-party contractor could go forward with his claim for retaliation under the California Whistleblower Protection Act, a federal appeals court ruled. The trial court erroneously dismissed the claim because it interpreted the California law too narrowly, the appeals court said.

The employee worked as a program manager for a firm that assists government agencies with the preparation of environmental assessments and other reports required under the National Environmental Policy Act (NEPA). The firm contracted with the U.S. Army Reserve Command to prepare an environmental assessment for a proposed modification to a site with 12 helicopter landing pads. The Army proposed designating the site as a staging area for helicopter assault training missions, which would require the aircraft to land and be supported by refueling trucks and staff.

During his investigation, the employee learned that the Army Reserve had already been using the site to run helicopter attack training missions for more than a decade.

The prior helicopter activity at the site raised several concerns for the employee in his evaluation of environmental impacts. The company was unable to locate any lease agreement authorizing the Army Reserve to use state land for helicopter operations or describing the permissible scope of such activity. No environmental condition of property report had been requested to determine if there were prior oil spills or refuelings. No endangered species report had been prepared or requested of state agencies to determine if prior operations had disrupted endangered or state-sensitive species. No soil samples had been taken to test for oil spills or soil erosion caused by motorized vehicles.

The Army Reserve's project chief told the company that the report would need to be completed in three months. The team expressed concern to her over the abbreviated timeline, explaining that environmental assessments often required nine to 18 months of work, and the prior helicopter operations added greatly to the complexity of the project.

In addition, the project chief told the team to remove or refrain from referring to the past helicopter activity on the site.

The employee told the project chief that failing to report the prior helicopter training activities was a violation of NEPA.

The project chief then called the employee's supervisor to raise concerns about the employee's pushback, and the supervisor told the employee about the project chief's dissatisfaction.

Nonetheless, the employee included several references to the prior helicopter operations in the draft assessment. When the project chief discovered this, she complained to the employee's supervisor. The employee was subsequently fired. He filed a lawsuit, raising a claim of unlawful retaliation in violation of the California Whistleblower Protection Act, among other claims. The trial judge dismissed the whistleblower claim, and the employee appealed.

Trial Court Decision

The trial court ruled that any complaints the employee made to his supervisor did not constitute protected activity under the California Whistleblower Protection Act because the law only protected disclosures to a person who both had authority over the employee and the authority to correct the alleged violation or noncompliance. The lower court concluded that the employee had not engaged in protected activity because his supervisor lacked the power to correct the Army Reserve's alleged noncompliance.

The trial court also ruled that the employee's disclosure of potential violations to the reserve project leader was not protected activity because the communications were a part of the employee's normal employment duties. In addition, the court ruled that the employee's disclosure to the project leader of her own wrongdoing was not really a "disclosure" to her and therefore did not qualify as protected activity.

Appeals Court Reads Law More Broadly

The appellate court ruled that the trial court had interpreted the California law too narrowly.

It was enough, the court said, that the employee had expressed concerns to his supervisor, and it did not matter that the supervisor did not have the power to correct the violation.

It also did not matter under the California Whistleblower Protection Act, the court said, that expressing concerns about potential illegality was a part of the employee's normal duties of employment.

Finally, the appeals court said, it was also a protected whistleblowing act to express concerns to the wrongdoer—the Army Reserve employee—even if the wrongdoer already knew the underlying facts.

Killgore v. Specpro Professional Services LLC, 9th Cir., No. No. 21-15897 (Oct. 20, 2022).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.