Decided on: March 21, 2013
Glynn brought a False Claims Act retaliation action, alleging that Defendant Impact Science & Technology (IST) and its parent company, EDO Corporation (EDO), fired Glynn because he reported IST to the government for what he believed to be fraudulent conduct. The Fourth Circuit agreed with the district court that Glynn was not engaged in activity that qualified him for protection under the FCA and affirmed the grant of summary judgment to the defendants.
IST hired Glynn as an engineer in 2004 to work in a department that produced devices that jammed frequencies used to detonate IEDs often employed in Afghanistan and Iraq. In May 2006, Glynn was told to conduct testing on a module to see if they performed adequately at 85 degrees Celsius. Glynn passed the modules despite the fact that they did not meet the threshold. After further testing, IST placed a corrective component into the units still in stock, but did not recall 800 units in the field. Glynn asked that the units be recalled, but his superiors did not comply. On September 13, 2006, Glynn contacted AUSA Philip Halpern and said he thought IST was shipping goods that would put the troops in jeopardy. Several days later, Glynn told a superior that he had reported to officials, and that manager alerted others. IST decided to terminate Glynn’s employment on October 13, and officially terminated him on December 14. Glynn sued for unlawful retaliation. The district court granted the defendants’ motion for summary judgment and Glynn appealed.
The FCA is designed to discourage contractor fraud against the federal government and includes an anti-retaliation provision to protect whistleblowers. Pursuant to Zahodnick v. Int’l Bus. Mach. Corp., 135 F.3d 911, 914 (4th Cir. 1997), an employee bringing a retaliation claim under the FCA must prove that: (1) he engaged in “protected activity” by acting in furtherance of a qui tam suit; (2) his employer knew of these acts; and (3) his employer took adverse action against him as a result of those acts. The district court found that Glynn failed to satisfy all three elements, which provided the basis for its grant of summary judgment to the defendants. The Fourth Circuit disposes of the case on the first element. Glynn puts forth three theories under which he argues that he was engaged in a protected activity: (1) he investigated and opposed IST’s provision of defective devices to the government customer; (2) he investigated and opposed IST’s false certification of compliance with the contract; and (3) he initiated government investigations of IST’s fraudulent conduct. The Fourth Circuit held that none of these actions raised a possibility of a viable FCA action and were not protected. Accordingly, the Fourth Circuit upheld the district court’s decision to grant summary judgment in favor of defendants.