AARON KILLGORE V. SPECPRO PROFESSIONAL SERVICES

FILED
OCT 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 21-15897
AARON KILLGORE,
Plaintiff-Appellant,
D.C. No.
v. 5:18-cv-03413-EJD
SPECPRO PROFESSIONAL OPINION
SERVICES, LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted July 13, 2022
Pasadena, California
Before: Mark J. Bennett and Gabriel P. Sanchez, Circuit
Judges, and Elizabeth E. Foote,* District Judge.
Opinion by Judge Sanchez
__________________
*
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
SUMMARY **
California Law / Employment Matters /
Environmental Law
The panel affirmed in part and reversed in part the
district court’s summary judgment in favor of plaintiff’s
former employer, SpecPro Professional Services, LLC, on
plaintiff’s retaliation and wrongful termination claims.
While he was consulting on an environmental project for
the U.S. Army Reserve Command, plaintiff believed he was
required to prepare an environmental assessment in a manner
that violated federal law. Plaintiff was terminated after
reporting the suspected illegality to the client and his
supervisor, William Emerson, at SpecPro. Plaintiff brought
statutory and common law claims of retaliation and wrongful
termination in a California state court action that was
removed to federal court.
Plaintiff alleged his employment was terminated in
violation of the California Whistleblower Protection Act,
Cal. Labor Code § 1102.5(b), (c). The panel first addressed
the district court’s determination that plaintiff’s disclosures
to his supervisor were not actionable because the supervisor
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.” The
district court determined that plaintiff’s disclosures to the
supervisor were immaterial and insufficient as a matter of
law to establish a whistleblower violation under section
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
1102.5(b). Although the Supreme Court of California has
not addressed the issue, the panel concluded that the district
court misconstrued the provision. The panel held that
plaintiff’s disclosures to his supervisor—as a “person with
authority over the employee”—provided an independent
ground for asserting a whistleblower retaliation claim under
section 1102.5(b). Such a construction was consistent with
the broad remedial purpose of the California Whistleblower
Protection Act. The panel predicted that the California
Supreme Court would hold that section 1102.5(b) prohibits
employers from retaliating against employees who disclose
wrongdoing to any one of several enumerated
avenues. Because the district court wrongly concluded that
disclosures to the supervisor were not protected under the
whistleblower statute, it did not consider this evidence in
ruling on SpecPro’s motion for summary judgment. The
panel concluded that the evidence created a genuine dispute
of material fact as to whether SpecPro retaliated against
plaintiff for engaging in protected whistleblower activity.
The district court also disregarded plaintiff’s disclosures
to Army Reserve project leader Chief Laura Caballero
because: (1) disclosing potential violations to Caballero was
not a protected activity because it was a part of the “normal
duties” of his employment; and (2) plaintiff’s disclosures
were unprotected because Caballero was assertedly a
“wrongdoer” in the alleged noncompliance with the National
Environmental Policy Act (“NEPA”), and, therefore,
Caballero’s own wrongdoing was not a “disclosure” to
her. The panel held that both determinations rested on a
misapplication of California law.
First, the panel held that the district court presumed,
without explaining why, that Caballero was plaintiff’s
supervisor with authority over him. The record does not
support that supposition. Plaintiff’s disclosures to her were
properly understood as a disclosure to a “government
agency” under the plain language of the statute. Cal. Lab.
Code § 1102.5(b). Section 1102.5(b), as amended in 2014,
provides that a whistleblower’s disclosures are protected
regardless of whether the disclosure was part of the
employee’s normal duties. The panel held that plaintiff’s
discussions with Caballero of potential violations of NEPA
were clearly protected under state whistleblower law at the
time they were made. Second, the panel held that several
state court appellate courts have held that disclosures to
wrongdoers are protected under section 1102.5(b). The
district court court’s reliance on Mize-Kurman v. Marin
Community College District, 136 Cal. Rptr. 3d 259 (Ct. App.
2012), was inapt. The panel held that the district court
misapplied California law when it rejected evidence of
plaintiff’s disclosures to Caballero. The panel further held
that plaintiff raised genuine issues of material fact as to
whether he disclosed potential violations of law to Caballero
and whether such disclosures were a contributing factor in
his termination in violation of state law.
Next, concerning the section 1102.5(b) claim, the panel
addressed whether plaintiff reasonably believed that the
information disclosed a violation of a federal statute or
noncompliance with a federal rule or regulation. In other
words, did plaintiff reasonably believe that NEPA was being
violated in the preparation on an environmental assessment
for a proposed action by the 1-158th Assault Helicopter
Battalion to modify the use of landing sites on land owned
by the Texas Department of Criminal Justice near Conroe,
Texas (“Conroe EA”). The district court held that plaintiff
could not have reasonably believed that omission of the prior
helicopter operations from the Conroe EA was a violation of
NEPA and its regulations because the EA was a “forward
looking” document that need only assess the potential
impacts of the proposed action. The panel held that the
district court misconstrued the holding in Klamath-Siskiyou
Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989 (9th
Cir. 2004). The panel held that the district court’s assertion
that the EA was only a “forward looking” document that
need not consider prior activity was contradicted by the
Council on Environmental Quality regulations and
precedent. As plaintiff’s testimony and evidence identified,
the Conroe EA provided no analysis or discussion of the
prior helicopter activities. The cumulative effect of these
prior activities, when combined with the proposed assault
helicopter landing zone operations, could have significant
effect on the environment. The panel concluded that the
district court erred in determining, as a matter of law, that
plaintiff had no reasonable cause to believe that they were
evaluating NEPA by failing to consider and include the prior
helicopter operations in the Conroe EA.
The panel addressed two remaining matters on the
section 1102.5(b) claim. First, viewing the evidence in the
light most favorable to Plaintiff’s claims, the panel held that
plaintiff’s concern about the inability to meet the three-
month deadline reflected a broader concern that the team
was being forced to prepare a noncompliant report that
unlawfully excluded the prior helicopter operations; and the
reasonableness of his belief was a factual question for the
jury to determine. Second, the panel rejected SpecPro’s
assertion that plaintiff could not have reasonably believed
there was a violation of NEPA because such violation can
only occur when the EA was signed, and plaintiff was fired
before the Conroe EA was completed. This argument was
contradicted by the plain language of the statute.
The panel concluded that plaintiff’s disclosures to his
supervisor and Caballero were protected under section
1102.5(b), and he raised genuine issues of material fact as to
what illegal conduct he disclosed, whether he had reasonable
cause to believe that federal law was being violated, and
whether his whistleblowing activity was a contributing
factor in his termination of employment. The panel reversed
the district court’s summary judgment order on the section
1102.5(b) retaliation claim. Because his claim of wrongful
termination in violation of public policy was derivative of
his retaliation claim, the panel also reversed the grant of
summary judgment on that claim.
Concerning plaintiff’s section 1102.5(c) claim, the panel
agreed with the district court’s grant of summary judgment
after finding that plaintiff presented no evidence he had
refused to engage in illegal activity. One of the elements of
this claim requires a determination whether the plaintiff was
retaliated against for refusing to participate in the identified
activity. While plaintiff raised extensive concerns about the
report, no evidence was adduced that plaintiff refused to
comply with Caballero’s directives concerning the Conroe
EA or otherwise refused to complete the EA. The panel
therefore affirmed the district court’s summary judgment for
SpecPro on this claim.
COUNSEL
Henry Harmeling IV (argued), Law Office of Henry
Harmeling IV, Cardiff, California; Geoffrey C. Lyon, Lyon
Law PC, Long Beach, California; for Plaintiff-Appellant.
Amy Todd-Gher (argued) and Denise Tran-Nguyen
(argued), Littler Mendelson P.C., San Diego, California;
Adam E. Brauner; for Defendant-Appellee.
KILLGORE V. SPECPRO PRO. SERV. LLC 1
OPINION
SANCHEZ, Circuit Judge:
Plaintiff Aaron Killgore appeals the district court’s grant
of summary judgment for his former employer, Defendant
SpecPro Professional Services, LLC (“SpecPro”). While
consulting on an environmental project for the United States
Army Reserve Command, Killgore believed he was being
required to prepare an environmental assessment in a manner
that violated federal law. He was terminated shortly after
reporting the suspected illegality to the client and his
supervisor at SpecPro. He brought statutory and common
law claims of retaliation and wrongful termination in a state
court action that was removed to federal court.
We conclude the district court misapplied the substantive
law of California. The court determined in error that
Killgore’s disclosures were not protected under the state
whistleblower statute and therefore disregarded evidence
material to his claims. Properly considered, the evidence
raises genuine disputes of material fact as to the nature of
Killgore’s disclosures, whether he had reasonable cause to
believe that federal law was being violated, and whether his
whistleblowing activity was a contributing factor in his
termination of employment. We reverse the district court’s
entry of summary judgment as to claims of retaliation and
wrongful termination that are based on his protected
disclosures. However, we affirm as to his claim of
retaliation based on the refusal to participate in illegal
activity, as Killgore presented no evidence in support of that
claim.
2 KILLGORE V. SPECPRO PRO. SERV. LLC
I.
Defendant SpecPro is an environmental services firm
that assists government agencies with the preparation of
environmental assessments and other reports required under
the National Environmental Policy Act (“NEPA”), 42
U.S.C. § 4321 et seq. and federal regulations. SpecPro
contracted with the United States Army Reserve Command
(“Army Reserve”) to provide environmental and training
support services for the 63rd Regional Support Command
(“63rd Command”), headquartered in Mountain View,
California. One of the projects under contract involved
preparing an environmental assessment for a proposed
action by the 1-158th Assault Helicopter Battalion (“1-
158th”) to modify the use of twelve landing sites on land
owned by the Texas Department of Criminal Justice near
Conroe, Texas (“Conroe EA”). The 63rd Command
proposed designating the Conroe site as a staging area for
Blackhawk helicopter assault training missions, which
would require the aircraft to land and be supported by
refueling trucks and personnel. Previously, the 1-158th
performed Apache helicopter attack missions which
involved hovering rather than landing maneuvers at Conroe.
Aaron Killgore was hired by SpecPro in June 2015 as a
program manager and assigned to support the Conroe EA.1
__________________
1
SpecPro was initially asked to prepare a Record of Environmental
Consideration (“REC”), a statement that “briefly describes the proposed
[Army] action and timeframe . . . and clearly shows how an action
qualifies for a [Categorical Exclusion].” 32 C.F.R. § 651.19. Proposed
actions may be excluded from compliance with NEPA if “they do not
individually or cumulatively have a substantial effect on the human
environment.” 32 C.F.R. § 651.11(c). The REC was submitted March
2017 and proposed that no environmental assessment be undertaken, but
the 63rd Command denied the request and in April 2017 directed the
completion of the Conroe EA.
KILLGORE V. SPECPRO PRO. SERV. LLC 3
SpecPro’s team included Killgore, Oskar Burger, and
Killgore’s supervisor, William Emerson. SpecPro also
retained AGEISS, an environmental consulting company, to
assist in preparing the Conroe EA, and AGEISS assigned
Melissa Russ to the contract. The Army Reserve’s project
leader was Chief Laura Caballero, the Environmental
Division Chief of the 63rd Command.
During the SpecPro team’s environmental due diligence,
Killgore learned that the Army Reserve had already been
using the Conroe site to run helicopter attack training
missions for more than a decade. Killgore testified that he
had traveled to Fort Bragg and spoken to an Air Force pilot
who mentioned there had been prior refueling exercises at
Conroe, which indicated to him that helicopters previously
landed in an assault battalion and were refueled by ground
vehicles. Burger was told by “one of the guys at Conroe”
that there had been many low-level flying and training
exercises at Conroe for very long time, possibly since the
1990s.
The prior helicopter activity at Conroe raised several
concerns for the SpecPro team in its evaluation of
environmental impacts. SpecPro was unable to locate any
lease agreement authorizing the Army Reserve to use state
land for helicopter operations or describing the permissible
scope of such activity. No environmental condition of
property report had been requested to determine if there were
prior oil spills or refuelings at Conroe, as is typical when the
Army leases or acquires property and must determine any
environmental liabilities. No endangered species report had
been prepared or requested of state agencies to determine if
prior operations had disrupted endangered or state-sensitive
species. No soil samples had been taken to test for oil spills
or soil erosion caused by motorized vehicles, biological
surveys to determine if invasive plant species had been
4 KILLGORE V. SPECPRO PRO. SERV. LLC
introduced by human activity, cultural surveys to ascertain
any impacts on Native American land or artifacts, or storm
water, pollution, or aviation management surveys to
determine other possible environmental effects by low-level
flight operations.
After SpecPro was assigned the Conroe EA in April
2017, Chief Caballero informed SpecPro that the report
would need to be completed in three months to permit
helicopter training operations scheduled for August 2017 to
proceed. Killgore, Burger, and Russ expressed concern to
her over the abbreviated timeline, explaining that
environmental assessments often required nine to eighteen
months of work and the prior helicopter operations added
greatly to the complexity of the project. Killgore separately
communicated to Emerson that the timeline was
unreasonably short given its complexity and how little was
documented or known about the prior training missions.
Another point of contention arose when Chief Caballero
instructed the SpecPro team around May 2017 to remove or
refrain from referencing the past helicopter activity from the
Conroe EA. Chief Caballero directed Killgore to tell his
team not to send emails or keep a written record of the prior
use issues surrounding the Conroe EA. SpecPro was not
allowed to pull environmental reports detailing the history of
the Conroe parcels or visit the Conroe site to observe its
actual conditions. Chief Caballero stated that prior
operations were not relevant to an environmental assessment
under NEPA because the proposed government action
involved helicopter landings, not helicopters hovering above
ground. Chief Caballero testified that the instruction to omit
prior helicopter activity from the Conroe EA came from her
superiors in the Army Reserve.
KILLGORE V. SPECPRO PRO. SERV. LLC 5
Killgore and Russ strongly disagreed with this directive.
Killgore told Chief Caballero that failing to report the prior
helicopter training activities in the Conroe EA was a
violation of NEPA and federal regulations. Russ separately
shared with Killgore that omitting all mention of past
activities was “unethical and probably illegal” because they
were not being fully transparent with the public about the
nature of the proposed action, and she wanted her name
removed from the assessment if the prior trainings were not
addressed.
Following these conversations, Chief Caballero called
Emerson, Killgore’s supervisor at SpecPro, to raise concerns
about Killgore’s “pushback on the Conroe EA.” Emerson
conveyed Chief Caballero’s dissatisfaction to Killgore.
Killgore responded that he “didn’t have the information [the
team] needed to complete this document accurately,” such
as “cultural, endangered species, erosion, property, and
pollution-related” information. Emerson told Killgore to
“do what the client asked” and “finish the environmental
assessment in three months.” Killgore contends that he
discussed with Emerson the “legality” of the Army
Reserve’s instruction to “hide the . . . past operations
associated with these helicopter [trainings].” Killgore
expressed concern that there were “multiple violations” of
NEPA because “we were directed to not be transparent about
[past operations]” and “we weren’t allowed to send people
on the ground to inspect the parcels.” Emerson emphasized
that their “goal is to keep [Chief Caballero] happy so that we
can get the option year renewal in 2018 and the award again
in 2019.”
Despite Chief Caballero’s directive, Russ and Burger
included several oblique references to the prior helicopter
operations in the draft Purpose and Need statement, and
Description of Proposed Action and Alternatives (DOPAA)
6 KILLGORE V. SPECPRO PRO. SERV. LLC
chapters, writing that the proposed action was “a transfer of
helicopter battalion from [attack to assault].” Chief
Caballero approved the draft without reading it, and Burger
sent it to the 63rd Command. Upon learning that Burger had
included these references in the draft, Chief Caballero
immediately instructed the SpecPro team to take them out.
Chief Caballero communicated to Emerson her “serious
concern that [Burger] did not follow specific guidance and
instruction from leadership” and suggested that Killgore had
encouraged him to disobey. Emerson directed Killgore to
apologize to Chief Caballero for his disobedient attitude and
for Burger’s conduct, stating “[SpecPro] needs to approach
[Chief Caballero] and her instructions with a ‘yes’ attitude
even if priorities/goals shift wildly as long as directives are
legal, moral, and ethical and exist within our scope.”
Killgore and Burger both apologized to Chief Caballero.
On June 22, 2017, Chief Caballero met with Emerson
and Dr. Stephen Alexander, the general manager of SpecPro,
at a regularly scheduled meeting. Caballero expressed deep
dissatisfaction with Killgore’s lack of cooperation in the
Conroe EA and his performance in other work-related
matters. Dr. Alexander described it as “the worst client
meeting [he] ever had.” That afternoon, Emerson fired
Killgore for failing to meet company and customer
expectations.
SpecPro completed the Conroe EA in September 2017,
which at the time of submission made no mention of the
prior helicopter activities in its Purpose and Need and
DOPAA chapters. Russ stated that after the firing, the
SpecPro team understood that “this was [the Army
Reserve’s] document, so we’ll write it the way they want it.”
While Russ continued to have concerns that the Conroe EA
had not been fully transparent about the proposed action, her
KILLGORE V. SPECPRO PRO. SERV. LLC 7
position softened after seeing the Army Reserve’s extended
public outreach.
In May 2018, Killgore filed an action in the Santa Clara
County Superior Court alleging state law claims of unlawful
retaliation in violation of the California Whistleblower
Protection Act, Cal. Lab. Code § 1102.5(b), (c), wrongful
termination in violation of public policy, and failure to pay
wages due upon termination, Cal. Lab. Code §§ 202-203.
SpecPro removed the action to federal court on the basis of
diversity jurisdiction. On December 19, 2019, the district
court granted SpecPro’s partial motion for summary
judgment as to retaliation and wrongful termination. The
parties resolved the wages claims by joint stipulation.
Killgore timely appealed the district court’s judgment.
II.
We review de novo a district court’s order granting
summary judgment. Botosan v. Paul McNally Realty, 216
F.3d 827, 830 (9th Cir. 2000). We “must determine whether,
viewing the evidence in the light most favorable to the
nonmoving party, there are any genuine issues of material
fact and whether the district court correctly applied the
relevant substantive law.” Lopez v. Smith, 203 F.3d 1122,
1131 (9th Cir. 2000) (en banc).
We review de novo the district court’s interpretation of
California law. Judd v. Weinstein, 967 F.3d 952, 955 (9th
Cir. 2020) (citing Salve Regina Coll. v. Russell, 499 U.S.
225, 231 (1991)). Absent controlling authority from the
state supreme court, “a federal court must ‘predict how the
highest state court would decide the [state law] issue using
intermediate appellate court decisions, decisions from other
jurisdictions, statutes, treatises, and restatements as
guidance.’” Kaiser v. Cascade Cap., LLC, 989 F.3d 1127,
8 KILLGORE V. SPECPRO PRO. SERV. LLC
1131-32 (9th Cir. 2021) (brackets in original) (quoting Judd,
967 F.3d at 955-56).
III.
Killgore asserts that his termination of employment
violated the California Whistleblower Protection Act
because he was retaliated against for disclosing what he
reasonably believed to be violations of federal law and
regulation in the preparation of the Conroe EA, and because
he was fired for refusing to participate in illegal activity.
Cal. Lab. Code § 1102.5(b), (c) (collectively “section
1102.5”). Killgore further alleges a claim of wrongful
termination in violation of public policy that is derivative of
his statutory retaliation claims.
As the California Supreme Court recently explained,
Section 1102.5 provides whistleblower
protections to employees who disclose
wrongdoing to authorities. As relevant here,
section 1102.5 prohibits an employer from
retaliating against an employee for sharing
information the employee “has reasonable
cause to believe . . . discloses a violation of
state or federal statute” or of “a local, state,
or federal rule or regulation” with a
government agency, with a person with
authority over the employee, or with another
employee who has authority to investigate or
correct the violation.
Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703,
709 (2022) (ellipsis in original). “An employee injured by
prohibited retaliation may file a private suit for damages”
against his former employer. Id.KILLGORE V. SPECPRO PRO. SERV. LLC 9
To assert a claim for whistleblower retaliation in
violation of section 1102.5,
the plaintiff [must] establish, by a
preponderance of the evidence, that
retaliation for an employee’s protected
activities was a contributing factor in a
contested employment action. . . . Once the
plaintiff has made the required showing, the
burden shifts to the employer to demonstrate,
by clear and convincing evidence, that it
would have taken the action in question for
legitimate, independent reasons even had the
plaintiff not engaged in protected activity.
Vatalaro v. Cnty. of Sacramento, 294 Cal. Rptr. 3d 389, 398
(Ct. App. 2022) (ellipsis in original and quotation marks
omitted) (quoting Lawson, 12 Cal. 5th at 718). Under
Lawson, California courts must evaluate section 1102.5
claims under the governing framework set forth in section
1102.6 of the Labor Code, not the three-part burden shifting
framework under McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Lawson, 12 Cal. 5th at 718.
A.
We first address the district court’s determination that
Killgore’s disclosures to his supervisor Emerson were not
actionable because Emerson 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.” Although the district court accepted that
Killgore had discussed the potential illegality of the Conroe
EA with Emerson, the court determined that Killgore’s
disclosures to Emerson were immaterial and insufficient as
10 KILLGORE V. SPECPRO PRO. SERV. LLC
a matter of law to establish a whistleblower violation under
section 1102.5(b).
Section 1102.5 provides in relevant part:
(b) An employer, or any person acting on
behalf of the employer, shall not retaliate
against an employee for disclosing
information, or because the employer
believes that the employee disclosed or may
disclose information, to a government or law
enforcement agency, to a person with
authority over the employee or another
employee who has the authority to
investigate, discover, or correct the violation
or noncompliance, or for providing
information to, or testifying before, any
public body conducting an investigation,
hearing, or inquiry, if the employee has
reasonable cause to believe that the
information discloses a violation of state or
federal statute, or a violation of or
noncompliance with a local, state, or federal
rule or regulation, regardless of whether
disclosing the information is part of the
employee’s job duties.
(c) 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.
Cal. Lab. Code § 1102.5.
KILLGORE V. SPECPRO PRO. SERV. LLC 11
In interpreting a state statute, we must follow the state’s
rules of statutory interpretation, here California. Bass v.
Cnty. of Butte, 458 F.3d 978, 981 (9th Cir. 2006). “As in any
case involving statutory interpretation, our fundamental task
here is to determine the Legislature’s intent so as to
effectuate the law’s purpose. We begin by examining the
statute’s words, giving them a plain and commonsense
meaning.” People v. Gonzalez, 2 Cal. 5th 1138, 1141 (2017)
(alterations and quotation marks omitted) (quoting People v.
Scott, 58 Cal. 4th 1415, 1421 (2014)). “We consider the
language in the context of the entire statute and the statutory
scheme of which it is a part, harmonizing provisions relating
to the same subject matter, to the extent possible.” Satele v.
Super. Ct., 7 Cal. 5th 852, 858-59 (2019) (citations omitted).
“If possible, significance should be given to every word,
phrase, sentence and part of an act in pursuance of the
legislative purpose.” Renee J. v. Super. Ct., 26 Cal. 4th 735,
743 (2001). “When the language is clear and there is no
uncertainty as to the legislative intent, we look no further and
simply enforce the statute according to its terms.” Id.Although the Supreme Court of California has not
addressed what constitutes a protected disclosure under
section 1102.5(b), we conclude that the district court
misconstrued this provision. The court concluded that
Emerson, as a private citizen in the employ of a private
environmental compliance firm, lacked the power to correct
the Army Reserve’s alleged noncompliance and therefore
disclosing these matters to him was “irrelevant under
[section] 1102.5(b).” In doing so, the court interpreted
section 1102.5(b) to mean that a protected disclosure must
be made to “a person with authority over the employee” who
also has the authority to “investigate, discover, or correct”
the violation.
12 KILLGORE V. SPECPRO PRO. SERV. LLC
However, California courts apply the “last antecedent
rule” when interpreting statutes. See White v. Cnty. of
Sacramento, 31 Cal. 3d 676, 680 (1982) (“A longstanding
rule of statutory construction—the ‘last antecedent rule’—
provides that ‘qualifying words, phrases and clauses are to
be applied to the words or phrases immediately preceding
and are not to be construed as extending to or including
others more remote.’” (quoting Bd. of Port Cmm’rs of City
of Oakland v. Williams, 9 Cal. 2d 381, 389 (1937))).
Applying that statutory canon here, the clause “who has the
authority to investigate, discover, or correct the violation or
noncompliance” modifies only the immediately preceding
phrase—“another employee.” Accordingly, Killgore’s
disclosures to Emerson—as a “person with authority over
the employee”—provided an independent ground for
asserting a whistleblower retaliation claim under section
1102.5(b).2
Several persuasive California sources support this
reading of the statute. California Civil Jury Instruction 4603,
the model instruction that describes the elements of a
whistleblower retaliation claim under section 1102.5(b),
draws a distinction between disclosures to a “person with
authority” over the plaintiff and disclosures to “an employee
with authority to investigate, discover or correct” the
__________________
2
Even if the district court were right that the clause “who has the
authority to investigate, discover, or correct” modifies the entire
sentence, “[s]uch use of the word ‘or’ in a statute indicates an intention
to use it disjunctively so as to designate alternative or separate
categories.” White, 31 Cal. 3d at 680. In focusing solely on Emerson’s
ability to “correct” a potential violation of law, the court erred by
ignoring evidence of Emerson’s authority as a manager to “investigate”
or “discover” alleged noncompliance of law by the client or his own
company.
KILLGORE V. SPECPRO PRO. SERV. LLC 13
violation of law. The jury instruction provides in relevant
part:
[That [[name of plaintiff] disclosed/[name of
defendant] believed that [name of plaintiff]
[had disclosed/might disclose]] to a
[government agency/law enforcement
agency/person with authority over [name of
plaintiff]/ [or] an employee with authority to
investigate, discover, or correct legal
[violations/noncompliance]] that [specify
information disclosed];]
Judicial Council of California Civil Jury Instruction 4603
(2021 ed.). See Cal. R. Ct. 2.1050(a) (“California jury
instructions approved by the Judicial Council are the official
instructions for use in the state of California.”). In addition,
a leading commentator on California law explains that an
employer may not prohibit an employee from disclosing
information about a potential violation of law “to a person
with authority over the employee, or to another employee
who has authority to investigate, discover, or correct a
violation or noncompliance[.]” 3 B.E. Witkin, Summary of
California Law, Agency & Employment § 373 (11th ed.
2022) (emphasis added). Other California treatises are in
accord. See 1 Ming W. Chin et al., Cal. Practice Guide:
Employment Litigation ¶ 5:1747 (The Rutter Group 2022).
The California Supreme Court’s description of section
1102.5(b) in Lawson is also illuminating. The court
explained that section 1102.5(b) protects employees who
share “information the employee ‘has reasonable cause to
believe . . . discloses a violation of state or federal statute’ or
of ‘a local, state, or federal rule or regulation’ with a
government agency, with a person with authority over the
employee, or with another employee who has authority to
14 KILLGORE V. SPECPRO PRO. SERV. LLC
investigate or correct the violation.” Lawson, 12 Cal. 5th at
709 (emphasis added) (ellipsis in original). While the
Lawson court was addressing a different question about the
proper framework for evaluating section 1102.5 claims, id.
at 712, the distinction it draws between disclosures to
government agencies, persons with authority over the
whistleblower, or other employees with authority to
investigate or correct the violation, lends further support to
a reading of the statute that makes these avenues of
disclosure independent of one another.
Finally, such a construction is consistent with the broad
remedial purpose of the California Whistleblower Protection
Act. Section 1102.5 “reflects the broad public policy interest
in encouraging workplace whistle-blowers to report
unlawful acts without fearing retaliation.” Green v. Ralee
Eng’g Co., 19 Cal. 4th 66, 77 (1998). When first enacted in
1984, the whistleblower statute provided protection only for
employees who reported suspected violations of law to
outside government or law enforcement agencies. Id. at 76-
77. In 2014, the California Legislature amended section
1102.5(b) to protect employees from retaliation against
disclosure to “a person with authority over the employee or
another employee who has the authority to investigate,
discover, or correct the violation” as well as retaliation “for
providing information to, or testifying before, any public
body conducting an investigation, hearing or inquiry.” 2013
Cal. Stats., ch. 577, § 5.5 (S.B. 666); ch. 732, § 6.5 (Assemb.
B. 263); ch. 781, § 4.1 (S.B. 496). As amended, section
1102.5(b) further clarified that employee disclosures were
protected “regardless of whether disclosing the information
is part of the employee’s job duties.” Id. Other amendments
were made concurrently to the California Business and
Professions Code, Labor Code, and Government Code. Id.
Senate Bill 496 was intended to “clarif[y] rights and
procedures under the California Whistleblower Protection
KILLGORE V. SPECPRO PRO. SERV. LLC 15
Act and related laws, codifying case law regarding court
review and more explicitly setting forth administrative and
judicial processes, and updating related whistleblower
protections against retaliation.” Cal. Assemb. Comm. on
Judiciary, Analysis of S.B. No. 496 as amended June 11,
2013 (2013-2014 Reg. Sess., June 25, 2013), p. 1.
Given the context of the 2014 statutory amendments and
its expansion of protections and remedies for whistleblowers
across several code provisions, the district court’s
constricted reading of section 1102.5(b) cannot stand.
Providing independent avenues for employees to disclose
potential violations of law serves the “broad public policy
interest in encouraging workplace whistle-blowers to report
unlawful acts without fearing retaliation.” Green, 19 Cal.
4th at 77. A person “with authority” over the whistleblower
is in a managerial position with the ability to act on that
information. There may however be other employees within
an organization, such as an ombudsperson, human resources
personnel, or a complaint hotline staff, who do not supervise
the whistleblower yet may possess “authority to investigate,
discover, or correct the violation.” See, e.g., Lawson, 12 Cal.
5th at 708 (noting the plaintiff “filed two anonymous
complaints with [the defendant’s] central ethics hotline”).
To combine these two channels of protected disclosure is to
artificially circumscribe meaningful ways that potential
wrongdoing can be elevated and addressed.
For the foregoing reasons, we predict that the California
Supreme Court would hold that section 1102.5(b) prohibits
employers from retaliating against employees who disclose
potential wrongdoing to any one of several enumerated
avenues: government or law enforcement agencies, a person
with authority over the employee, other employees with
authority to investigate, discover, or correct the violation or
noncompliance, or any public body conducting an
16 KILLGORE V. SPECPRO PRO. SERV. LLC
investigation, hearing, or inquiry. Cal. Lab. Code §
1102.5(b). An employer may not retaliate against an
employee when the employee “has reasonable cause to
believe that the information discloses a violation of state or
federal statute” or of “a local, state, or federal rule or
regulation, regardless of whether disclosing the information
is part of the employee’s job duties.” Id.; see Lawson, 12
Cal. 5th at 709. Accordingly, we proceed on the
understanding that under California law, an employee
disclosing information he or she reasonably believes to be a
violation of law to a “person with authority over the
employee” is a protected disclosure under section 1102.5(b).
As the district court found, Emerson was a person “with
authority over [Killgore]” as his supervisor at SpecPro.
Indeed, Emerson exercised that authority by terminating
Killgore’s employment. Killgore testified that he discussed
the legality of the Conroe EA with Emerson. He stated that
the SpecPro team did not have sufficient information about
the prior helicopter operations to complete the
environmental assessment accurately. He expressed concern
that the team was not permitted to request environmental
reports detailing the history of the Conroe parcels or to visit
the Conroe site to observe its actual conditions. He told
Emerson that the Army Reserve’s instruction not to consider
or report on the prior operations in the Conroe EA or even
discuss these activities in email correspondence with the
Army Reserve constituted “multiple violations” of NEPA.
After these disclosures, Killgore was fired from SpecPro.
Because the district court wrongly concluded that
disclosures to Emerson were not protected under the
whistleblower statute, it did not consider this evidence in
ruling on SpecPro’s motion for summary judgment.
Viewing such evidence in the light most favorable to the
nonmoving party, we conclude that the evidence creates a
KILLGORE V. SPECPRO PRO. SERV. LLC 17
genuine dispute of material fact as to whether SpecPro
retaliated against Killgore for engaging in protected
whistleblower activity.3
B.
The district court also disregarded Killgore’s disclosures
to Chief Caballero for two reasons: disclosing potential
violations to Chief Caballero was not a protected activity
because it was a part of his “normal duties” of his
employment, and Killgore’s disclosures were unprotected
because Chief Caballero was assertedly a “wrongdoer” in the
alleged noncompliance with NEPA. Both determinations
rest on a misapplication of California law.
As an initial matter, the district court presumed, without
explaining why, that Chief Caballero was Killgore’s
supervisor with authority over him. The record does not
support that supposition. Chief Caballero was an employee
of the 63rd Command of the Army Reserve and was
SpecPro’s client. There is no evidence that Chief Caballero
had the right to hire, fire, or otherwise direct Killgore’s
conditions of employment at SpecPro, and she affirmatively
disclaimed any such authority. Chief Caballero was,
however, an employee of a “government agency,” the U.S.
Army Reserve. Killgore’s disclosures to her are properly
understood as a disclosure to a “government agency” under
the plain language of the statute. Cal. Lab. Code §
1102.5(b).
__________________
3
We address the district court’s determination that Killgore did not have
reasonable cause to believe that federal law was violated below.
18 KILLGORE V. SPECPRO PRO. SERV. LLC
The district court concluded that Killgore’s discussions
with Chief Caballero of potential violations of law4 were not
entitled to whistleblower protection because reporting
NEPA violations were part of his “normal duties” as her
supervisee. As discussed above, however, section 1102.5(b)
was amended in 2014 to provide that a whistleblower’s
disclosures are protected “regardless of whether disclosing
the information is part of the employee’s job duties.” Cal.
Lab. Code § 1102.5(b). Even if the district court were
correct that Killgore’s reports to Chief Caballero were a
normal function of his employment, his disclosures were
clearly protected under state law at the time they were made.
The district court, relying on Mize-Kurzman v. Marin
Community College District, 136 Cal. Rptr. 3d 259 (Ct. App.
2012), also determined that Killgore’s communications with
Chief Caballero were unprotected because the information
was already known to her. Id. at 281-82. Mize-Kurzman
held that an “employee’s report to the employee’s supervisor
about the supervisor’s own wrongdoing is not a ‘disclosure’
. . . because the employer already knows about his or her
wrongdoing.” Id. at 282 (emphasis in original). Mize-
Kurzman’s determination that disclosures to a wrongdoer do
not qualify for protection was based on a Federal Circuit
Court opinion interpreting the federal Whistleblower
__________________
4
Killgore testified that he and Russ specifically told Chief Caballero that
preparing the environmental assessment without reference to the prior
helicopter operations was illegal under NEPA. Chief Caballero testified
that she did not recall Killgore bringing up the legality of excluding the
prior operations. Drawing all inferences in favor of the nonmoving
party, we assume that Killgore specifically disclosed that he believed
preparing the Conroe EA without reference to past activities would
violate NEPA.
KILLGORE V. SPECPRO PRO. SERV. LLC 19
Protection Act. Id. at 279-80, 281-82 (citing Huffman v. Off.
of Pers. Mgmt., 263 F.3d 1341, 1350 (Fed. Cir. 2001)).
The district court’s reliance on Mize-Kurzman was inapt
because, as discussed above, there is no evidence that Chief
Caballero was Killgore’s “employer” or “supervisor.”
Nothing in Mize-Kurzman suggests that its rule limiting
protected disclosures to supervisors not involved in the
alleged wrongdoing should be extended to individuals who
do not supervise or employ the whistleblower. See id. at
281-82. Even if such a rule can be gleaned from Mize-
Kurzman, several other state appellate courts have held that
disclosures to wrongdoers are protected under section
1102.5(b).
In Jaramillo v. County of Orange, 133 Cal. Rptr. 3d 751(Ct. App. 2011), the appellate court found that Jaramillo’s
disclosure to a supervisor involved in the wrongdoing was
protected because it “fits within the literal definition of
whistleblowing under Labor Code section 1102.5.” Id. at
762. The court rejected the County’s reliance on Huffman,
stating that “California precedent is to the direct contrary.”
Id. at 762 (citing Gardenhire v. Hous. Auth., 101 Cal. Rptr.
2d 893 (Ct. App. 2000)); see also Hager v. Cnty. of L.A., 176
Cal. Rptr. 3d 268, 277 (Ct. App. 2014) (finding Huffman
inconsistent with California law and holding that “a report
of wrongdoing by a public employee to the very person who
is engaged in the wrongdoing is covered by [section
1102.5(b)]”), disapproved on other grounds in Lawson, 12
Cal. 5th at 711-12. Finally, Huffman has itself been
superseded by amendments to the federal Whistleblower
20 KILLGORE V. SPECPRO PRO. SERV. LLC
Protection Act which protect employee disclosures to a
supervisor believed to be involved in the wrongdoing.5
We conclude that the district court misapplied California
law when it rejected evidence of Killgore’s disclosures to
Chief Caballero on the basis that reporting was part of his
normal job duties or because she was assertedly involved in
the wrongful conduct. Viewing the evidence in the light
most favorable to his claims, Killgore has raised genuine
issues of material fact as to whether he disclosed potential
violations of law to Chief Caballero and whether such
disclosures were a contributing factor in his termination in
violation of state law.
C.
The final question we must address concerning the
section 1102.5(b) claim is whether Killgore “ha[d]
reasonable cause to believe that the information discloses a
violation of . . . federal statute” or “noncompliance with a . .
. federal rule or regulation.” Cal. Lab. Code § 1102.5(b).
Under the statute, the relevant inquiry is not whether the
conduct “actually violated” any specific statute or
regulation, but whether the plaintiff “reasonably believed
that there was a violation of a statute, rule, or regulation” at
the time it was reported. Nejadian v. Cnty. of L.A., 253 Cal.
Rptr. 3d 404, 418 (Ct. App. 2019) (emphasis in original)
__________________
5
See Whistleblower Protection Enhancement Act of 2012, Pub. L. No.
112-199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (2012) (codified as
amended at 5 U.S.C. § 2302(f)(1)) (“A disclosure shall not be excluded
from subsection (b)(8)”—forbidding retaliation against an employee
who discloses information about a suspected “violation of any law, rule
or regulation”—because “(A) the disclosure was made to a supervisor or
to a person who participated in an activity that the employee . . .
reasonably believed to be [a violation of law, rule, or regulation].”).
KILLGORE V. SPECPRO PRO. SERV. LLC 21
(contrasting the requirements of section 1102.5(b) and
1102.5(c) retaliation claims).
1.
To determine whether Killgore presented triable
evidence sufficient to support a reasonable belief that NEPA
was being violated in the preparation of the Conroe EA, we
begin by summarizing the requirements of NEPA and its
implementing regulations.
NEPA is a procedural statute that requires a federal
agency like the Army Reserve “to assess the environmental
consequences of their actions before those actions are
undertaken.” Klamath-Siskiyou Wildlands Ctr. v. Bureau of
Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004). “NEPA
‘ensures that the agency . . . will have available, and will
carefully consider, detailed information concerning
significant environmental impacts; it also guarantees that the
relevant information will be made available to the larger
[public] audience.’” Blue Mountains Biodiversity Project v
Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (alterations
in original) (quoting Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 349 (1989)). NEPA is accompanied
by implementing regulations promulgated by the Council on
Environmental Quality (“CEQ”), 40 C.F.R. §§ 1501.1-
1508.28.
For “major Federal actions significantly affecting the
quality of the human environment,” the agency must prepare
an environmental impact statement (“EIS”). 42 U.S.C. §
4332(2)(C). “Where an agency is unsure whether an action
is likely to have ‘significant’ environmental effects, it may
prepare an EA: a ‘concise public document’ designed to
‘[b]riefly provide sufficient evidence and analysis for
determining whether to prepare an [EIS] . . . .” Klamath-
22 KILLGORE V. SPECPRO PRO. SERV. LLC
Siskiyou, 387 F.3d at 993 (first alteration in original)
(quoting former 40 C.F.R. § 1508.9); see also 40 C.F.R. §
1501.5(c)(1).
Under the CEQ regulations, the EA must “[b]riefly
discuss the purpose and need for the proposed action” and
alternatives and “the environmental impacts of the proposed
action and alternatives,” 40 C.F.R. § 1501.5(c)(2), and it
must consider the “[e]ffects or impacts” of a proposed
action, 40 C.F.R. § 1508.1(g). Pertinent to our analysis here,
the NEPA regulations require consideration of the
cumulative impacts of an action, defined as “effects on the
environment that result from the incremental effects of the
action when added to the effects of other past, present, and
reasonably foreseeable actions.” Id. § 1508.1(g)(3).
The district court concluded that Killgore could not have
reasonably believed that omission of the prior helicopter
operations from the Conroe EA was a violation of NEPA and
its regulations because the EA is a “forward looking”
document that “need only assess the potential impacts of the
proposed action.” The court rejected Killgore’s reliance on
Klamath-Siskiyou, holding that federal agencies “have
substantial discretion over whether to include past actions in
their EAs and what extent those past actions should be
discussed in a cumulative effects analysis.” The district
court misconstrued our holding in Klamath-Siskiyou.
As we previously explained, “[a] proper consideration of
the cumulative impacts of a project requires some quantified
or detailed information; . . . general statements about
possible effects and some risk do not constitute a hard look
absent a justification regarding why more definitive
information could not be provided.” Klamath-Siskiyou, 387
F.3d at 993 (internal quotation marks and citations omitted).
We emphasized that a cumulative impacts analysis “must be
KILLGORE V. SPECPRO PRO. SERV. LLC 23
more than perfunctory; it must provide a useful analysis of
the cumulative impacts of past, present, and future
projects.” Id. at 994 (emphasis added); see id. at 996(reversing grant of summary judgment in NEPA action
challenging timber sales where agency’s EAs gave only
“generalized” and “conclusory” statements about
cumulative effects of proposed sales); see also 40 C.F.R. §
1508.1(g)(3) (a cumulative impacts analysis under NEPA
reviews the “effects on the environment that result from the
incremental effects of the action when added to the effects of
other past, present, and reasonably foreseeable actions.”
(emphasis added)).
The district court’s assertion that the EA is only a
“forward looking” document that need not consider prior
activity in evaluating the potential impacts of a proposed
action is contradicted by the CEQ regulations and our
precedent. While the district court is correct that federal
agencies have substantial discretion to define the scope of
NEPA review, an agency may not disregard its statutory
obligation to take a “hard look” at the environmental
consequences of a proposed action, including its cumulative
impacts, where appropriate. Blue Mountains, 161 F.3d at
1212, 1214-15.
As Killgore’s testimony and evidence identified, the
Conroe EA provided no analysis or discussion of the prior
helicopter activities. Killgore testified that he believed that
consideration of this prior activity was important for an
evaluation of the proposed action because prior helicopter
missions had been occurring for more than ten years, and yet
there was little to no documentation of their environmental
effects on the Conroe site. Killgore believed that there may
have been prior refueling missions, which required
consideration of potential oil spills, the introduction of
invasive species, soil erosion, and other environmental
24 KILLGORE V. SPECPRO PRO. SERV. LLC
impacts. Even if prior helicopter missions only involved
low-level hovering missions, the cumulative effect of these
prior activities, when combined with the proposed assault
helicopter landing zone operations, could have a significant
effect on the environment. See 40 C.F.R. § 1508.1(g)(3)
(“Cumulative effects can result from individually minor but
collectively significant actions taking place over a period of
time.”).
The district court erred in determining, as a matter of
law, that Killgore had no reasonable cause to believe that
they were violating NEPA by failing to consider and include
the prior helicopter operations in the Conroe EA. At a
minimum, this was a question of fact for the jury to decide.
See Terry v. Atl. Richfield Co., 140 Cal. Rptr. 510, 512 (Ct.
App. 1977) (“[T]he reasonableness of an act or omission is
a question of fact, that is, an issue which should be decided
by a jury and not on a summary judgment motion,” unless
“there is no room for a reasonable difference of opinion.”);
West v. State Farm Fire & Cas. Co., 868 F.2d 348, 350 (9th
Cir. 1989) (per curiam) (citing Terry, supra). As the record
demonstrates, both Burger and Russ also believed it was
important to reference the prior helicopter training missions
in the Conroe EA, and Russ shared the view that omitting
this information was “unethical and probably illegal”
because they were not being fully transparent with the
public. That other members of the SpecPro team may have
also believed they were violating federal law illustrates that
the reasonableness of Killgore’s disclosures of illegality was
a factual matter better left for the jury.
2.
Two final matters bear some discussion. The district
court accepted SpecPro’s contention that Killgore alleged a
violation of NEPA because the team was required to
KILLGORE V. SPECPRO PRO. SERV. LLC 25
complete the Conroe EA in only three months. To the extent
Killgore is alleging that a rushed timeline is itself a violation
of NEPA, we agree with the district court that concern about
meeting a deadline is not a protected activity. However, we
view Killgore’s testimony about the three-month deadline
not in a vacuum, but in the broader context of his testimony
about the absence of documentation about the prior
helicopter activities, the complexity of the Conroe EA in
light of the prior operations, and the limitations imposed by
the Army Reserve in prohibiting the SpecPro team from
pulling environmental reports or traveling to the site to
observe its actual conditions. Viewing the evidence in the
light most favorable to Killgore’s claims, as we must, his
concern about the inability to meet the three-month deadline
reflected a broader concern that the team was being forced
to prepare a noncompliant and incomplete report that
unlawfully excluded the prior helicopter operations. The
reasonableness of his belief is a factual question for the jury
to determine.
At oral argument, SpecPro also asserted that Killgore
could not have reasonably believed there was a violation of
NEPA because such violation can only occur when the
environmental assessment is signed, and Killgore was fired
before the Conroe EA had been completed. This argument
is contradicted by the plain language of the statute and the
purpose for which whistleblower protections were enacted
in California. An employer may not retaliate against an
employee for disclosing wrongful conduct “or because the
employer believes that the employee disclosed or may
disclose information” about a violation of law. Cal. Lab.
Code § 1102.5(b) (emphasis added); see also Cal. Assemb.
Comm. on Judiciary, Analysis of S.B. No. 496 as amended
June 11, 2013 (2013-2014 Reg. Sess., June 25, 2013), p. 3.
(“[C]omplaints about alleged violations of local law are
covered, as well as internal complaints and perceived or
26 KILLGORE V. SPECPRO PRO. SERV. LLC
anticipatory retaliation.”). Section 1102.5(b) serves to
protect actual disclosures as well as retaliation for
anticipated whistleblowing activity. SpecPro’s reading of
the statute would allow an employer to fire the potential
whistleblower before completing the illegal act and thereby
escape liability. California law does not limit whistleblower
protections in such manner.
We conclude that Killgore’s disclosures to Emerson and
Chief Caballero were protected under section 1102.5(b), and
he raised genuine issues of material fact as to what illegal
conduct he disclosed, whether he had reasonable cause to
believe that federal law was being violated, and whether his
whistleblowing activity was a contributing factor in his
termination of employment. Accordingly, we reverse the
district court’s summary judgment order of the section
1102.5(b) retaliation claim. Because his claim of wrongful
termination in violation of public policy is derivative of his
retaliation claim, we reverse the grant of summary judgment
as to that claim as well.
IV.
Section 1102.5(c) prohibits “[a]n employer . . . [from]
retaliat[ing] 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.” “[T]o prevail on a
claim under this provision, the plaintiff must identify both
the specific activity and the specific statute, rule or
regulation at issue; the court must then determine the legal
question whether the identified activity would result in a
violation or noncompliance with the identified statute, rule,
or regulation, and, if so, the jury must determine the factual
issue whether the plaintiff was retaliated against for refusing
KILLGORE V. SPECPRO PRO. SERV. LLC 27
to participate in the identified activity.” Nejadian, 253 Cal.
Rptr. 3d at 408.
The district court granted summary judgment after
finding that Killgore presented no evidence he had refused
to engage in illegal activity. We agree. While Killgore
raised extensive concerns about the report, no evidence has
been adduced that he refused to comply with Chief
Caballero’s directives concerning the Conroe EA or
otherwise refused to complete the EA. Rather, he testified
that he did not get a chance to refuse to work on the project
before he was fired, and he continued working on the
document until his final day at SpecPro. We affirm the
district court’s order granting summary judgment on this
claim.
V.
Because Killgore has presented genuine disputes of
material fact under section 1102.5(b) and wrongful
termination in violation of public policy, we reverse the
district court’s order granting summary judgment of those
claims and remand for further proceedings consistent with
this opinion. We affirm the grant of summary judgment as
to the section 1102.5(c) claim.
AFFIRMED in part, REVERSED in part, and
REMANDED. Defendant-Appellee must bear all costs.