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Ninth Circuit Takes Broad View of Protected Activity under the California Whistleblower Protection Act


On October 20, 2022, the Ninth Circuit reversed in part a grant of summary judgment in favor of an employer, finding that the district court misapplied the substantive law of California in holding that Plaintiff’s disclosures to his supervisor and to a third-party contractor did not constitute protected activity under the California Whistleblower Protection Act.  Killgore v. Specpro Pro. Serv., LLC, No. 21-15897.


Plaintiff worked as a consultant for a firm retained by the United States Army Reserve (“Reserve”) to conduct an independent environmental assessment, pursuant to the National Environmental Policy Act (“NEPA”), in connection with a proposal to modify the use of certain helicopter landing sites.  Plaintiff alleged that he was discharged after he raised concerns to his supervisor and to the project leader at the Reserve that he was being required to prepare the environmental assessment in a manner that violated a requirement of the NEPA.

Plaintiff filed suit California state court alleging various claims, including claims of unlawful retaliation and wrongful termination under the California Whistleblower Protection Act, Cal. Lab. Code § 1120.5(b).  After the case was removed to federal court, the U.S. District Court for the Northern District of California granted summary judgment in favor of Plaintiff’s former employer.  The district court held that any complaints Plaintiff made to his supervisor did not constitute protected activity because California law only protected disclosures to a person who both had (i) authority over the employee, and (ii) authority to correct the alleged violation or noncompliance.  The district court concluded that Plaintiff had not engaged in protected activity because his supervisor lacked the power to correct the Reserve’s alleged noncompliance.

The district court also held that Plaintiff’s disclosure of potential violations to the Reserve project leader was not protected activity because: (i) such communications were part of Plaintiff’s “normal duties” as part of his employment; and (ii) Plaintiff’s disclosure to the project leader of the project leader’s own wrongdoing was not a “disclosure” to her, and therefore did not qualify as protected activity.


On appeal, the Ninth Circuit reversed the district court’s ruling in part, holding that the California Supreme Court would likely construe § 1102.5(b) to protect employees who disclose wrongdoing to a supervisor, even if the supervisor lacked authority to correct the issue.  The Ninth Circuit relied on dicta in the California Supreme Court’s recent decision in Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703 (2022)—which drew a distinction between disclosures to government agencies, persons with authority over the whistleblower, or other employees with authority to investigate or correct the violation—to support a reading of the statute that makes these avenues of reporting independent of one another.  (See our post on Lawson here.)

The Ninth Circuit also concluded that the district court misapplied California law in holding that Plaintiff’s disclosures to the Reserve project leader were not protected activity.  First, the record did not support the conclusion that the Reserve project leader was Plaintiff’s supervisor with authority over him; rather, Plaintiff was an employee of the government contractor and the project leader was an employee of the Reserve who affirmatively disclaimed any supervisory authority over Plaintiff.  Plaintiff’s disclosures to her therefore were disclosures to a “government agency” under the plain language of the statute.  Second, to the extent that Plaintiff’s disclosures could be considered part of Plaintiff’s “normal duties,” amendments to the statute in 2014 expressly extended protection to a whistleblower’s disclosures “regardless of whether disclosing the information is part of the employee’s job duties.”  Cal. Lab. Code § 1102.5(b).  Finally, the Ninth Circuit relied on several state appellate court decisions holding that communications with the alleged wrongdoer are protected under § 1102.5(b).


The Ninth Circuit’s broad reading of § 1102.5 (b) may ease plaintiffs’ ability to show that they engaged in protected activity under the California Whistleblower Protection Act.


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