Killgore v. Specpro Pro. Servs.

An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. California Whistleblower Protection Act, section 1102.5(c).

Petitioner worked for Respondent, tasked with completing an “Environmental Impact Statement” (EIS) for the Army Reserve, in compliance with National Environmental Policy Act (“NEPA”). 42 U.S.C. § 4332(2)(C). Petitioner was instructed by his Army Reserve client to exclude information from his report. Following Petitioner’s complaints to his supervisor of the potential illegality of this action, he was terminated. The District Court granted Respondent’s motion for summary judgement, narrowly construing California’s whistleblower protection statute to exclude Petitioner’s conduct. The District Court incorrectly found that the disclosure was not actionable because who he reported the conduct to was not "a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance." On appeal, the panel reversed, holding the lower court misapplied California law. An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. California Whistleblower Protection Act, section 1102.5(c). The Circuit Court found that a person with authority does not have to be in a managerial position to act on the information but can be another employee who does not supervise the whistleblower but who may possess the authority to investigate, discover or correct the violation. Reversed and remanded.