A California federal district court has ruled that if an employer is unaware of an ex-employee’s whistleblowing activity, that employee is barred from filing a claim under California’s whistleblower protection law.
In United States of America ex rel. Darryn Kelly v. Serco, Inc., plaintiff Darryn Kelly was employed as an analyst for defendant Serco, which had a contract with the Department of Homeland Security (DHS) to upgrade its wireless communications systems on the U.S./Mexico border. Kelly complained to DHS that other Serco employees were not using the automated system required by ANSI 748 guidelines to record their work hours, which resulted in inaccurate reporting to DHS.
A few weeks after Kelly filed the complaint, Serco dismissed him in a department-wide downsizing. Kelly filed a wrongful termination suit against Serco, claiming the company fired him in retaliation for the whistleblowing activity in violation of California’s retaliatory discharge provision and the False Claims Act.
In its dismissal of Kelly’s whistleblower claim, the court said it could find no evidence that Serco was aware of Kelly’s complaints to DHS before the company fired him, so there was no causal link between Kelly’s whistleblowing and his dismissal by Serco.
In its dismissal of Kelly’s claim under the False Claims Act, the court said that Kelly could not prove that the payment vouchers submitted to DHS by Serco contained any false or misleading information. The court noted that a violation must be premised on a false claim for benefits or payment and that it was not enough to allege underlying fraud or illegal activity if the claim for government benefits itself does not contain misrepresentations.
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