Where a man was fired less than two weeks after he raised concerns about a company’s compliance with federal regulations, he plausibly alleged a claim for whistleblower retaliation.
Matthew Foosaner alleges one count of retaliation against Crown Castle USA Inc. pursuant to the Defense Contractor Whistleblower Protection Act, or DCWPA. In sum, plaintiff asserts that he was terminated in retaliation for making disclosures protected under the DCWPA to management officials or other employees who had a duty to investigate, discover or address such alleged misconduct. Defendant has filed a motion to dismiss.
Defendant argues that any disclosure plaintiff made before being hired is not protected because plaintiff was not an employee. Defendant also argues that any disclosure plaintiff made after being hired is not protected because it was not new or different from the disclosures made during the interview process.
To begin with, defendant’s argument is devoid of any citation to case or statutory authority that supports its position that an employee loses statutory protection by making disclosures, which would otherwise be protected, during the interview process. Nor would such a rule make sense as it would discourage individuals from raising concerns at the first available opportunity.
In any event, as the amended complaint makes clear, plaintiff did not make disclosures during the interview process. Rather, plaintiff’s amended complaint alleges that, plaintiff was not making a protected disclosure during his interviews but was merely suggesting that defendant might benefit from investigating or obtaining legal advice.
It is only after plaintiff became an employee, thereby gaining access to additional information from defendant and protection under the DCWPA, that plaintiff’s statements become more definitive and fall into the category of disclosing information that an employee believes is evidence of “a violation of law, rule, or regulation.” Plaintiff, at a minimum, alleges a questioning of defendant’s compliance with the Defense Federal Acquisition Regulations, or DFARS. Accordingly, plaintiff plausibly alleges facts demonstrating that he engaged in a protected activity and defendant’s argument in this regard fails.
Defendant next argues that plaintiff fails to allege that any of the persons with whom he spoke regarding DFARS compliance was a person responsible for investigating, discovering or addressing misconduct. The court disagrees.
Plaintiff alleges that, after he was hired, he made his disclosures to multiple senior persons employed by defendant. He alleges that each of those persons took steps “to investigate, discover, or address” the alleged misconduct when plaintiff informed him or her of the potential DFARS violations. Accordingly, defendant’s argument in this regard also fails.
Plaintiff alleges that when he first raised concerns regarding the application of DFARS during the interview process, he was told that DFARS compliance would not be one of his responsibilities. When plaintiff continued to discuss DFARS compliance after he was hired, he was warned to “stop talking to people about this compliance stuff” because he was “scaring people.” After plaintiff continued to raise his concerns regarding DFARS to various employees, he was terminated plaintiff, 10 days after the warning.
Defendant nevertheless asserts that plaintiff cannot demonstrate causation because: (1) plaintiff was rewarded for making his disclosures, rather than punished and (2) the same actors who hired plaintiff also fired plaintiff. Neither argument is persuasive. It is difficult to see how plaintiff was rewarded for making his disclosures where defendant fired plaintiff after a mere 11 days on the job. Moreover, DCWPA claims are not the kinds of cases to which the same-actor doctrine easily applies.
Defendant’s motion to dismiss denied.
Foosaner v. Crown Castle USA Inc., Case No. 1:22-cv-521, Aug. 23, 2023. EDVA at Alexandria (Alston). VLW 023-3-502. 13 pp.