UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA ex rel.

HUMBERTO IRIZARRY,

Plaintiff,

v.

INNOVATIVE TECHNOLOGIES, INC., 

et al.,

Defendants.

Civil Action No. 13-705 (LLA)

MEMORANDUM OPINION AND ORDER

Plaintiff-Relator Humberto Irizarry brought this qui tam action against his former 

employer, Innovative Technologies, Inc. (“ITI”), ITI’s CEO Mariano Martinez, and 

Mr. Martinez’s wife, Theresa Martinez (collectively, “Defendants”). ECF No. 20. Defendants 

have moved to dismiss Mr. Irizarry’s whistleblower retaliation claim (Count III). ECF No. 54. 

For the reasons explained below, the court will grant Defendants’ motion.

I. Factual Background

In resolving Defendants’ motion to dismiss, the court accepts the following factual 

allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). ITI is a government contractor 

that, as relevant to this suit, provides audio-visual equipment and services to the U.S. Department 

of Defense (“DOD”). ECF No. 20 ¶¶ 4, 13; ECF No. 40 ¶ 2. Mr. Martinez is the company’s 

founder and Chief Executive Officer. ECF No. 20 ¶ 21. Mr. Irizarry worked for ITI from 2001 to 

2012. Id. ¶ 8. At the time this matter arose, he was ITI’s Vice President for Visual Integration 

Services and Senior Program Manager for DOD contracts. Id.
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On May 14, 2012, Mr. Martinez met with Mr. Irizarry to “discuss performing an internal 

audit” of ITI’s contracts. Id. ¶ 71. The purpose of the audit was to determine whether ITI’s 

contracts were subject to the Service Contract Act (“SCA”), 41 U.S.C. § 6701 et seq., and, if so, 

whether ITI had complied with the SCA, ECF No. 20 ¶ 71. The SCA “establishes minimum labor 

standards for service[s] provided by private contractors to the United States.” ECF No. 20 ¶ 33; 

see 41 U.S.C. § 6703. If a contract falls within the SCA’s scope, the contractor must pay its 

employees a minimum hourly wage and certain fringe benefits. ECF No. 20 ¶¶ 34-35; see 41 

U.S.C. § 6703(1)-(2).

On May 15, another ITI employee—Vincent Langan—emailed Mr. Martinez confirming 

that a particular contract (Contract No. HQ0028-07-D-0003) (“the Contract”) was subject to the 

SCA. ECF No. 20 ¶¶ 72-73. Later that afternoon, Mr. Martinez “ignore[ed] [Mr. Irizarry’s] 

requests that the company hire an attorney to conduct the investigation” and ordered him to 

continue handling it. Id. ¶ 74. Mr. Irizarry did, and he discovered that ITI had violated the SCA 

by underpaying its employees more than $1.15 million over the life of the Contract. Id. ¶¶ 75-79. 

That “calculation did not include fringe benefits or subcontractors,” id. ¶ 78, meaning that the total 

underpayment in violation of the SCA was even higher.

Mr. Irizarry presented his findings to Mr. Martinez on May 17. Id. ¶ 77. Mr. Martinez 

“became infuriated, and revealed to [Mr. Irizarry] that Defendants were non-compliant with SCA 

wage requirements on nearly every contract it performed within the last twenty (20) years.” Id.

¶ 80. He also told Mr. Irizarry that ITI had billed the federal government for labor performed on 

the Contract at hourly rates above the minimum SCA wage, even though it was paying its 

employees less than the SCA required, and it had pocketed the difference. Id. ¶¶ 82, 85. Thus, 

when Defendants submitted Contract invoices to the government, they had falsely certified that 
3

they were complying with the SCA and paying employees appropriately. Id. ¶ 83. Mr. Irizarry 

suggested, again, that Mr. Martinez hire an attorney and encouraged him to refund the 

overpayments to the government. Id. ¶ 86. Mr. Martinez refused to “self-report.” Id. 

On June 7, Mr. Martinez asked Mr. Irizarry to arrange a meeting with two subcontractors, 

Aerotek and MSI, which ITI was using to fulfill the Contract. Id. ¶ 87. Mr. Martinez told 

Mr. Irizarry that the purpose of the meeting was “to obtain information and documentation related 

to wages the subcontractors paid to their employees for work performed on the Contract.” Id. ¶ 88. 

The SCA requires contractors to ensure that their subcontractors comply with the Act’s labor 

standards. Id. ¶ 47; see 29 C.F.R. § 4.114(b). Mr. Irizarry told Mr. Martinez that he “felt 

uncomfortable organizing such a meeting, as he felt that this meeting was an attempt to hide, rather 

than correct, any past SCA violations.” ECF No. 20 ¶ 88. Mr. Martinez nonetheless instructed 

Mr. Irizarry to arrange the meeting. Id. Because Mr. Irizarry did not want to participate in any 

potentially illegal activity, he asked Mr. Langan to organize the meeting instead. Id.

That same day, a DOD component awarded ITI a $100-million contract (Contract 

No. HQ0028-12-D-0011) (the“T-ASA Contract”). Id. ¶¶ 89-90. Mr. Martinez asked Mr. Irizarry 

to review the contract before signing it. Id. ¶ 91. Rather than provide Mr. Irizarry the password 

to the computer software ITI used for contracting (to which Mr. Irizarry normally had access), 

Mr. Martinez insisted that they review the contract together in a conference room. Id. During the 

review, Mr. Irizarry realized that the new proposal and contract did not comply with the SCA. Id.

¶ 92. Mr. Martinez told Mr. Irizarry “that he understood that the proposal had defective pricing 

and was not compliant with the SCA,” that ITI “needed the work, and that he (Martinez) needed 

to do everything possible to ensure . . . ITI was awarded the new contract.” Id. ¶¶ 93, 95. 
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Before signing the contract, Mr. Martinez and Mr. Irizarry participated in a conference call 

with Contract Administrator Jessie Feliciano. Id. ¶ 96. Mr. Martinez “limited [Mr. Irizarry’s] 

dialogue during the conference call, prohibiting him from raising the issue of the defective 

pricing.” Id. ¶ 97. After the call, Mr. Martinez told Mr. Irizarry, “I do not have another choice 

than to sign the contract,” and he said that “his only concern was to ensure that no issues were 

raised by the Government[] or other bidders within the next 10 days that covered the protest 

period.” Id. Mr. Martinez also stated that he “would ask for a contract modification to fix the 

SCA compliance issue and would blame [the Department of Labor] for the request,” but 

Mr. Irizarry does not believe that Mr. Martinez ever did so. Id.

On June 8, Mr. Martinez emailed Mr. Irizarry and “asked to discuss [his] progress” in 

arranging the subcontractor meeting. Id. ¶ 98. On June 11, Mr. Martinez sent a second email 

asking about the status of the meeting and requesting that Mr. Irizarry meet with him to “discuss 

[his] handling of the internal investigation.” Id. ¶ 99. The two met that evening. Id. ¶ 100. 

Mr. Irizarry told Mr. Martinez that he had not reached out to the subcontractors and had instead 

asked Mr. Langan to set up the meeting. Id. ¶ 101. Mr. Martinez “demanded that [Mr. Irizarry] 

conduct the meeting.” Id. Mr. Irizarry “refused, and repeated his concerns that such a meeting 

would constitute furthering [Defendants’] unlawful acts.” Id. Mr. Martinez became angry and 

told Mr. Irizarry that he “did not care about the potential illegal activity” and that Mr. Irizarry 

should “do what he was told.” Id. ¶ 102. When Mr. Irizarry again refused, Mr. Martinez told him, 

“[o]n Friday we will meet to discuss your future in this company.” Id. ¶ 103.

About five minutes later, Mr. Martinez came into Mr. Irizarry’s office and asked him to 

come to a conference room “so that they could discuss [his] future at ITI.” Id. ¶ 104. Mr. Martinez 

told Mr. Irizarry that “things are not working out with you.” Id. ¶ 105. Mr. Irizarry “understood 
5

this to mean that he only had two options: either follow Martinez’s orders and engage in activity 

that [he] reasonably believed to be illegal, or resign.” Id. Mr. Irizarry “handed in his resignation 

and explained that he felt [Mr.] Martinez was demanding that he violate federal law.” Id. ¶ 106. 

Mr. Martinez instructed him to leave ITI immediately. Id.

The next morning, Mr. Irizarry met with ITI’s Human Resources Manager. Id. ¶ 107. He 

provided a copy of his resignation letter, “informed [the manager] that he resigned because of 

[Mr.] Martinez’s instruction and pressure to participate in illegal conduct,” and told the manager 

that Mr. Martinez had violated federal contracting laws by submitting defective pricing 

information for the T-ASA Contract. Id. ¶¶ 107-09.

On June 13, Mr. Irizarry called Mr. Feliciano and told him that ITI’s “proposal for [the 

T-ASA Contract] was not SCA-compliant and included defective pricing.” Id. ¶ 110. Mr. Irizarry 

explained that he had resigned from ITI because of the SCA violations and because Mr. Martinez 

had created a hostile work environment by demanding that he participate in illegal activity. Id.

¶ 112. In February 2013, Mr. Irizarry voluntarily disclosed Defendants’ fraudulent activity to the 

government. Id. ¶ 116.

II. Procedural History

Mr. Irizarry filed this qui tam action in May 2013, alleging that Defendants violated the 

False Claims Act, 31 U.S.C. § 3729 et seq., by fraudulently certifying compliance with the SCA 

(Counts I & II) and by concealing false claims for certain equipment fees (Count IV); retaliated 

against him for engaging in activity protected by the False Claims Act (Count III); and breached 

his employment contract by failing to pay him roughly $82,000 in wages and commission 

(Count V). ECF No. 1 ¶¶ 235-85. The United States requested and received multiple extensions 

of time to decide whether to intervene. ECF Nos. 4-19, 21-36. During this period, Mr. Irizarry 
6

amended his complaint. ECF No. 20. In September 2023, the United States filed a complaint in 

partial intervention, intervening only as to Count IV.1 ECF No. 40; see ECF No. 37. Mr. Irizarry 

filed a notice of partial voluntary dismissal, asking that the non-intervened qui tam counts 

(Counts I & II) and all claims against Mr. Martinez’s wife be dismissed without prejudice. 

ECF No. 41. 

Defendants moved to dismiss Mr. Irizarry’s whistleblower retaliation claim (Count III). 

ECF No. 54. The motion is now fully briefed. ECF Nos. 56, 57.

III. Legal Standard

Defendants move to dismiss Mr. Irizarry’s retaliation claim pursuant to Federal Rule of 

Civil Procedure 12(b)(6). ECF No. 54. Under Rule 12(b)(6), the court will dismiss a complaint 

that does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Id. In evaluating a motion to dismiss under Rule 12(b)(6), the court will accept the factual 

allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Id.

IV. Discussion

“The False Claims Act (FCA), 31 U.S.C. §§ 3729-3733, imposes civil liability on any 

person who presents false or fraudulent claims for payment to the Federal Government.” United 

States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 423 (2023). Section 3730(h) of 

the statute protects “whistleblowers who seek to expose or to prevent government fraud.” 

1 The United States’ complaint in intervention superseded Count IV of Mr. Irizarry’s 

complaint. See United States ex rel. Sansbury v. LB & B Assocs., 58 F. Supp. 3d 37, 47 

(D.D.C. 2014).
7

Singletary v. Howard Univ., 939 F.3d 287, 293 (D.C. Cir. 2019). To make out a retaliation claim 

under the False Claims Act, “a plaintiff must plead facts showing (i) that []he engaged in protected 

activity, (ii) ‘because of’ which []he was retaliated against.” Id. (quoting United States ex rel. 

Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998)).

“Protected activity under the False Claims Act’s anti-retaliation provision takes two 

forms.” Singletary, 939 F.3d at 295. The first form of protected activity is “lawful acts done . . . in 

furtherance of an action under this section,” 31 U.S.C. § 3730(h)(1)—in other words, “steps taken 

antecedent to a False Claims Act proceeding,” Singletary, 939 F.3d at 295. An employee engages 

in such activity by “‘investigat[ing] matters that reasonably could lead to,’ or have a ‘distinct 

possibility’ of leading to, a ‘viable False Claims Act case.’” Id. (quoting Hoyte v. Am. Nat’l Red 

Cross, 518 F.3d 61, 66, 68-69 (D.C. Cir. 2008)). The second form of protected activity is “lawful 

acts done in furtherance of ‘other efforts to stop 1 or more violations of’ the [Act].” Singletary, 

939 F.3d at 295 (quoting 31 U.S.C. § 3730(h)(1)). “To put it simply, the focus of the second prong 

is preventative—stopping ‘violations’—while the first prong is reactive to an (alleged) actual 

violation of the statute.” Id. at 296. 

Mr. Irizarry’s alleged protected activity fall into two categories: (1) his investigation of 

ITI’s SCA violations and the statements he made to Mr. Martinez about the results and 

consequences of that investigation; and (2) his refusal to organize or participate in the meeting 

with ITI’s subcontractors.2 See ECF No. 56, at 13-16. Per Mr. Irizarry, Defendants constructively 

2 Mr. Irizarry also claims that he engaged in protected activity by “inform[ing] ITI’s HR 

manager that ITI submitted defective contracts in violation of federal contracting laws and [that] 

he resigned because of Martinez’s instruction and pressure to participate in illegal conduct.” ECF 

No. 56, at 14; see ECF No. 20 ¶¶ 107-09. But he did so after he had already decided to resign—

after the alleged adverse employment action. See ECF No. 20 ¶¶ 106-09. There can therefore be 

no plausible causal link between Mr. Irizarry’s disclosure to the Human Resources manager and 

the alleged adverse employment action.
8

discharged him because he engaged in those activities. Id. at 10-11. The court concludes that 

neither of Mr. Irizarry’s alleged protected activities can support his retaliation claim.3

A. Investigation and Related Comments

Investigating a matter that could lead to a viable False Claims Act case is a protected 

activity. Singletary, 939 F.3d at 295. But “[c]ommon sense teaches that an employer cannot 

retaliate against conduct of which it was unaware.” Id. at 300. Thus, “plaintiffs alleging that 

performance of their normal job responsibilities constitutes protected activity must ‘overcome the 

presumption that they are merely acting in accordance with their employment obligations’ to put 

their employers on notice.” United States ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 

1251, 1261 (D.C. Cir. 2004) (quoting Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 568 (6th 

Cir. 2003)).

The parties dispute whether Mr. Irizarry was acting within the scope of his “normal job 

responsibilities” when he investigated ITI’s SCA violations and followed up on the results of that 

investigation by encouraging Mr. Martinez to hire an attorney and suggesting that ITI refund the 

government. See ECF No. 54, at 8-10; ECF No. 56, at 13-14; ECF No. 20 ¶¶ 74, 86, 88, 101. 

Mr. Irizarry argues that, as Vice President for Visual Integration Services, his job was merely to 

oversee the implementation and completion of ITI’s contracts. ECF No. 56, at 13; see ECF No. 20 

¶ 8. He contends that he “did not have any responsibility to investigate nor ensure that ITI’s 

contracts were compliant with any laws or regulations”—instead, that was the role of ITI’s contract 

managers, its accounting department, and Mr. Martinez himself. ECF No. 56, at 13; see

3 Because the court finds that Mr. Irizarry cannot meet the protected activity requirement, 

the court need not consider Defendants’ arguments that (1) he never suffered any adverse 

employment action and (2) the court should dismiss his claim against Mr. Martinez because the 

False Claims Act does not allow for retaliation claims against individuals. ECF No. 54, at 1-2.
9

ECF No. 20 ¶¶ 10-11. But this is beside the point, because Mr. Irizarry admits that he only 

investigated ITI’s SCA violations because Mr. Martinez ordered him to. ECF No. 20 ¶¶ 71-79. 

Mr. Martinez made the SCA investigation part of Mr. Irizarry’s job responsibilities by asking him 

to conduct it. 

Because Mr. Irizarry was “simply performing his ordinary duties” when he investigated 

ITI’s SCA violations, there is a presumption that such activities cannot support a whistleblower 

retaliation claim. See Martin-Baker Aircraft Co., 389 F.3d at 1261 (quoting Yuhasz, 341 F.3d 

at 568). To overcome that presumption, Mr. Irizarry must “act[] outside his normal job 

responsibilities or alert[] a party outside the usual chain of command.” Id. He did not do so. As 

already discussed, Mr. Irizarry did not act outside his normal job responsibilities—he merely did 

as he was told. ECF No. 20 ¶¶ 71-79. And Mr. Irizarry reported his concerns only to 

Mr. Martinez, not outside his chain of command.4 Id. ¶¶ 77, 86, 88. 

Although it is a closer question, the same logic applies to Mr. Irizarry’s internal complaints 

to Mr. Martinez. Mr. Irizarry alleges that he “made protected disclosures” by “request[ing] 

Martinez . . . hire an attorney to conduct the investigation” and “urg[ing] Martinez to refund the 

overpayments to the Government.” ECF No. 56, at 14. While Mr. Martinez did not specifically 

ask Mr. Irizarry to opine on the consequences of the internal investigation or who should conduct 

it, those conversations were the natural result of Mr. Martinez’s order that Mr. Irizarry investigate 

ITI’s SCA violations. Yuhasz provides a helpful analogy. 341 F.3d at 561. There, the plaintiff—

who was hired to supervise laboratory testing and submit certifications of compliance—argued 

4 Even if the investigation itself was protected activity, Mr. Irizarry does not seem to allege 

that ITI constructively discharged him merely because he conducted the investigation. Rather, he 

alleges that he was pushed out of ITI because of what he did after he conducted the investigation. 

See ECF No. 56, at 12. Thus, even if the investigation itself was protected activity, there would 

be no plausible causal connection between that investigation and any adverse employment action. 
10

that he had engaged in protected activity by “informing [the defendant] that its certifications were 

illegal and that other companies had incurred liability under the FCA for false claims.” Id. at 567. 

Of course, the plaintiff had not been specifically hired to tell the defendant that it was breaking the 

law, but the court nonetheless concluded that the reports in question were “entirely within the 

scope of his duties.” Id. “[M]erely warning the defendants of the consequences of their conduct,” 

as Mr. Irizarry did here, did not necessarily put Defendants on notice that he “was furthering or 

intending to further an FCA action.” Id. (quoting United States ex rel. Ramseyer v. Century 

Healthcare Corp., 90 F.3d 1514, 1523 (10th Cir. 1996)). And again, Mr. Irizarry has not alleged 

that he reported his concerns outside his chain of command. Cf. Singletary, 939 F.3d at 301-02 

(holding that the plaintiff engaged in protected activity by reporting violations to both her 

supervisors and the federal government).

In sum, Mr. Irizarry has not plausibly alleged that Defendants were on notice that, by 

investigating ITI’s SCA violations and discussing the consequences of that investigation with 

Mr. Martinez, he was taking steps in furtherance of a False Claims Act action. Those actions thus 

cannot support a whistleblower retaliation claim.

B. Refusal to Participate in the Subcontractor Meeting

Mr. Irizarry also contends that he engaged in protected activity by “refus[ing] to conduct a 

meeting with the subcontractors because he reasonably believed that the meeting . . . would require 

him to participate in the illegal concealment of fraud” and by telling Mr. Martinez so. ECF No. 56, 

at 15. He concedes, however, that “a refusal to participate alone does not constitute a protected 

activity” under the False Claims Act. Id. at 14. As then-Judge Ketanji Brown Jackson explained 

in United States ex rel. Tran v. Computer Sciences Corporation, 53 F. Supp. 3d 104 (D.D.C. 2014), 

the plain text of the False Claims Act requires “affirmative activity”: “acts done” or “efforts taken” 

to stymie fraud. Id. at 136; see 31 U.S.C. § 3730(h)(1). “With rare exception, the mere refusal to 
11

participate in an allegedly unlawful scheme is neither an ‘act[] done’ nor an ‘effort[]’ taken, and 

such forbearance certainly does not equate with the kind of affirmative activity that the text of the 

statute conveys.” Tran, 53 F. Supp. 3d at 136 (alterations in original).

Instead, Mr. Irizarry argues that his “refusal to participate coupled with additional activity 

to stop the alleged fraud . . . constitutes protected activity.” ECF No. 56, at 14. It is true that 

“when courts assessing [False Claims Act] retaliation claims have mentioned with some approval 

a relator’s refusal to participate in a fraudulent scheme, that fact is inevitably coupled with actual 

actions that the relator took either to promote its [False Claims Act] suit[] or to stop the alleged 

fraud.” Tran, 53 F. Supp. 3d at 136. The problem for Mr. Irizarry, however, is that, as explained 

above, his actions could not have put Defendants on notice that he was engaging in protected 

activity. See supra Part IV(A). In each of the cases Mr. Irizarry cites, the relator took some other

action—in addition to refusing to participate in allegedly unlawful activity—that could 

independently support a retaliation claim. See ECF No. 56, at 15 (citing cases relied on in Tran); 

see, e.g., Sharma v. District of Columbia, 791 F. Supp. 2d 207, 219 (D.D.C. 2011) (“Plaintiff went 

beyond the management chain . . . to complain by filing two formal complaints with the U.S. 

Department of Justice.”); United States ex rel. Hood v. Satory Glob., Inc., 946 F. Supp. 2d 69, 87 

(D.D.C. 2013) (allowing a False Claims Act retaliation claim to proceed where the relators had 

reported their concerns outside their chain of command).5 

5 The same is true of the out-of-circuit cases that Mr. Irizarry cites. ECF No. 56, at 15

(citing Elkharwily v. Mayo Holding Co., 955 F. Supp. 2d 988 (D. Minn. 2013), aff’d, 823 F.3d 462 

(8th Cir. 2016); United States ex rel. Meyer v. Kempf Surgical Appliances, Inc., No. 11-CV-111, 

2013 WL 1438025 (S.D. Ohio Apr. 9, 2013); United States ex rel. George v. Bos. Sci. Corp., 864 

F. Supp. 2d 597 (S.D. Tex. 2012)). In all three, the plaintiffs either engaged in activity that had 

little to do with their job description or reported outside their chain of command. Elkharwily, 955 

F. Supp. 2d at 994 (allowing a claim to proceed where the plaintiff “participated in activity outside 

of his job description”); United States ex rel. Meyer, 2013 WL 1438025, at *1 (allowing a claim 

to proceed where the relator, a “licensed orthotist”—in other words, a healthcare provider, not a 
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Because Mr. Irizarry’s refusal to participate in the subcontractor meeting and his 

statements to Mr. Martinez explaining that refusal do not constitute protected activity under the 

False Claims Act, and because Mr. Irizarry has not plausibly alleged any other instances of 

protected activity, the court will dismiss his whistleblower retaliation claim. 

V. Conclusion

In light of Relator’s Notice of Partial Voluntary Dismissal, ECF No. 41, it is hereby 

ORDERED that Counts I and II of Relator’s Amended Complaint and all claims against 

Defendant Theresa Martinez are hereby DISMISSED without prejudice to the Relator and without 

prejudice as to the United States. For the foregoing reasons, it is further ORDERED that 

Defendants’ Motion to Dismiss Relator’s Claim for Whistleblower Retaliation, ECF No. 54, is 

GRANTED and Count III is DISMISSED. Counts IV and V of Relator’s Amended Complaint, 

ECF No. 20, and the United States’ Complaint in Partial Intervention, ECF No. 40, remain before 

the court. The court will schedule an Initial Scheduling Conference forthwith.

SO ORDERED.

 /s/ Loren L. AliKhan 

 LOREN L. ALIKHAN

 United States District Judge 

Date: September 30, 2024

compliance or billing specialist—“raised questions about Defendants’ billing practices”); United 

States ex rel. George, 864 F. Supp. 2d at 600, 609 (allowing a claim to proceed where the relator, 

a sales representative, inquired about the legality of the defendant’s activity “at large company 

presentations” where many employees were present).