Jottings By An Employer's Lawyer |
Monday, November 29, 2004
Qui Tam Action Dismissed, But Whistleblowing Claim Survives
The FCA also provides protection against retaliation for an employee because of lawful acts "in furtherance of an action under this section." Like a case where an employer prevails on the substantive discrimination claim, but loses on retaliation, in Williams v. Martin-Baker Aircraft Company, Ltd. (D.C. Cir. 11/26/04) [pdf], the company/employer successfully defeated the qui tam action, but not the whistle blower claim which is remanded to the district court. Initially, the district court had dismissed both the qui tam action and the whistleblower claim. Finding the qui tam complaint to be both "‘‘simultaneously excessively prolix and equally abstruse,’’ both courts found it failed to meet the heightened pleading requirement for fraud. The district court had also dismissed the whistle blower claim finding that the employee was terminated 18 months before he filed the claim. On appeal, the employer did not seek affirmation on that basis, a wise decision according to the Court because of its prior holding that actions in furtherance of a cause, will often include actions prior to filing suit. Instead, the employer argued based on a separate line of cases that since the employee did no more than what his job required him to do (in this case reporting errors in pricing data being given to the government) it could not have been on notice that he was engaged in protected activity. While agreeing in principal with the argument, the Court found it inapplicable here holding: So no big payoff from the qui tam action, but the whistle blower claim survives, at least for now.
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