United States Court of Appeals,

Fifth Circuit.

No. 93-1789.

George S. ROBERTSON, Plaintiff-Appellant,

v.

BELL HELICOPTER TEXTRON, INC., Defendant-Appellee.

Sept. 26, 1994.

Appeal from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, and DAVIS and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Plaint iff, a for mer employee of Bell Helicopter Textron, Inc. ("Bell"), sued Bell under 31

U.S.C. § 3730(h) alleging t hat he had been discharged in retaliation for investigating possible

overcharging of the United States Government. He also asserted a state law claim for wrongful

discharge for refusing to perform an illegal act. The jury returned a verdict for plaintiff on the federal

claim, but the district court granted Bell's motion for judgment as a matter of law. We affirm.

I.

George Robertson was employed by Bell as a senior contract administrator in Department M1 of its Army Helicopter Improvement Program ("AHIP"). In that posi ti on, Robertson was

responsible for ensuring that AHIP costs were properly charge d and that requests for additional

funding were substantiated. Under the AHIP program, Bell refitted older helicopters with up-to-date

guidance and weapons systems for the U.S. Army. The Army ordered the refitting of the helicopters

in groups called "contract lots," which were consecutively numbered.

Robertson reported to Alvin Leavell, who was his immediate supervisor. William Wilso n was

in charge of Department M-1, and Robert Hol ton was second in charge. Wilson and Holton reported

to Daniel McCrary, who was responsible for contract administration on all helicopter programs with

the United States Government.

In November 1990, Leavell asked Robertson to request an additional $1.6 millio n for ContractLots IV and V for unanticipated maintenance and repair. No explanation was given as to why the

additional funds were due. Nevertheless, Robertson wrote a letter to the government requesting the

additional $1.6 millio n. Robertson, however, told the government contracting officer not to process

the request because it had not been verified. Leavell then informed Wilson that neit her he nor

Robertson would request ad d itional funds for unanticipated maintenance and repair until the increased

costs were substantiated.

During this time, Robertson voiced his concerns to several of his superiors about the lack of

v erification for these additional charges. Robertson also sought to substantiate the charges by

requesting information from managers of different departments. Robertson testified at trial that he

raised the cost-charging issue with his supervisors on an almost mo nt hly basis. Robertson's

immediate supervisor, Leavell, testified that he was aware that Robertson was concerned about the

additional charges.

In 1991, Wilso n asked Leavell to write a letter requesting an additional $2 million for

unanticipated maintenance and repair for Contract Lots VI and VII. Leavell declined to make the

request without proper justification. In October 1991, Leavell was transferred to another department,

and Robertson was placed under the supervision of John Growe. In December 1991, Growe asked

Robertson to write the letters requesting the additional $2 millio n for Lots VI and VII, and Robertson

refused.

In November 1991, Leavell recommended that Robertson receive a 3+ rating on hi s

performance evaluation for 1991. Wilson, however, assigned Robertson a 3 rating. Wilson testified

that he lowered the rating because Robertson was occasio nally t ardy and had difficulty

communicating effectively.

In February 1992, as part of a general reduction in Bell's workforce, Robertson was laid off.

Bell maintains that Robertson was chosen because he had the lowest performance rating. On the day

after being notified of his layo ff, Robertson complained to the Director of Bell's Ethics Office that he

was being laid off because of his age. He also suggested that Bell might be engaged in improper

charging, but stated that he did not have any evidence of fraud.1 Robertson did not file a qui tam action until March 9, 1993. The United States elected not to

intervene, and Robertson filed a notice of voluntary dismissal. On July 14, 1992, Robertson filed suit against Bell, asserting claims for (1) age discrimination,

(2) retaliation for reporting false claims in furtherance of a qui tam action under 31 U.S.C. § 3730(h),

(3) wrongful discharge for refusing to perform an illegal act, and (4) estoppel. Robertson eventually

dro pped his age discrimination claim, and the district court granted Bell's motion for summary

judgment on the estoppel claim. The case proceeded to trial on the federal retaliation and state

wro ngful discharge claims. After Robertson rested, Bell moved for judgment as a matter of law,

which the district court denied. Bell renewed its motion after the close of all the evidence, but it was

again denied.

The jury was properly instructed that in order to find for Robertson on his federal retaliation

claim, they had to find that Bell knew Robertson was investigating alleged fraud in an effort to bring,

or to help the government to bring, a False Claims Act suit. The jury found that Bell knew of

Robertson's investigation in furtherance of a qui tam action. 1 The jury also found that Bell had not

given a reasonable, non-retaliatory explanation for discharging Robertso n. Under the instructions

given by the district court, because the jury found for Robertson on his retaliation claim, it did not

answer the interrogatories regarding his state law wrongful discharge claim.

After the jury returned its verdict, the district court granted Bell's motion for judgment as a

matter of law. The court determined that there was insufficient evidence to support the jury's findings

that Bell knew of Robertson's alleged investigations in furtherance of a qui tam action or that Bell

discharged Robertson because of such investigations. The court also found that there was insufficient

evidence to support the jury's finding that Bell's non-retaliatory explanation was pretextual. Finally,

t he district court concluded that, as a matter of law, Robertson was not entitled to a jury

determination on his wrongful discharge claim.

II.

A.

In reviewing the district court's decision to grant a judgment as a matter of law, we use thesame standard of review that guided the district court. C rosthwait Equip. Co. v. John Deere Co., 992

F.2d 525, 528 (5th Cir.), cert. denied,

--- U.S.

----, 11 4 S.Ct. 549, 126 L.Ed.2d 451 (1993). We

consider all the evidence with all reasonable inferences in t he light most favorable to the party

opposed to the motion. I

d. If the facts and the inferences point so strongly and overwhelmingly in

favor of Bell that reasonable jurors could not arrive at a contrary verdict, then the m oti on was

properly granted. Id. If there is substantial evidence—that is, evidence of such quality and weight

that reasonable and fair-minded jurors might reach a different conclusion—then the motion should

have been denied. Id.

The "whistleblower" provision of the False Claims Act prevents the harassment, retaliation,

or threatening of employees who assist in or bring qui tam actions. In particular, the statute provides:

Any employee who is discharged, demoted, suspended, threatened, harassed, or in any

other manner discriminated against in the terms and conditions of employment by his or her

employer because of lawful acts done by the employee on behalf of the employee or others

in furtherance of an acti o n under t his section, including investigation for, initiation of,

testimony for, or assistance in an action filed or to be filed under this section, shall be entitled

to all relief necessary to make the employee whole....

31 U.S.C. § 3730(h). The legislat ive hist o ry makes clear that a "whistleblower must show the

employer had knowledge the employee engaged in "protected acti vity.' " S.Rep. No. 345, 99th

Cong., 2d Sess. 35 (1986), reprinted in, 1986 U.S.C.C.A.N. 5266, 5300.

This case turns on whether the record supports an inference that (1) Robertson engaged in

protected act ivit y, and (2) that Bell knew about it. Robertson argues that his actions constituted

protected activity in two respects. First, he argues that internal reporting of false claims is protected

under the False Claims Act so that expression of his concerns to his superiors constituted protected

activity. Second, Robertson argues that his investigation of the increased costs constitutes protected

activity.

With regard to Robertson's reporting of his concerns to his superiors, several district courts

have held that § 3730(h) protects internal whistleblowers. S ee, e.g., Cleme s v. Del Norte County

Unified Sch. Dist., 843 F.Supp. 583, 595-96 (N.D.Cal.1994); United States ex rel. Kent v. Aiello,

836 F.Supp. 720, 723-24 (E.D.Cal.1993); N eal v. Honeyw ell, Inc., 826 F .Supp. 266, 269-73

(N.D.Ill.1993). In each of those cases, however, the employee told the employer that she was2 On cross-examination, Robertson testified as follows:

Q. Did you ever use the word "illegal" with anyone prior to the time that you were

terminated?

A. Not the term "illegal," no.

Q. What about unlawful?

A. I don't—I may not have even used that term.

Q. What about the term "qui tam action," did you mention that to anybody?

A. No, I didn't. concerned about the company defrauding the government. For instance, in N eal, the court explained

that the actual filing of a qui tam suit should not be a prerequisite to protection under § 3730(h):

It would make little sense to protect an anonymous qui tam plaint iff who filed an expensive

and time-consuming lawsuit while ignoring someone like the Plaint iff, whose bold conduct

led to a quick, voluntary and efficient disclosure of the fraud an d reparati on to the

government. Thus, we hold that the whistleblower protection provision of the False Claims

Act forbids discrimination against an employee who has made an intracorporate complaint

about fraud against the government.

826 F.Supp. at 273.

The purpose of the False Claims Act, of co urse, is to discourage fraud against the

government, and the whistleblower provision is intended to encourage those with knowledge of fraud

to come forward. S ee id. at 269. In the cases cited above, the employees did not file q ui tam actions,

but they did expre ss co ncerns about possible fraud to their employers. By contrast, in this case,

Robertson ad mit t ed t hat he never used the terms "illegal," "unlawful," or " q ui tam action" in

characterizing his concerns about Bell's charges. 2 Thus, Robertson's reporting was qualitatively

different than the reporting that occurred in the cases he cit e s. As a result, we conclude that

Robertson's reporting did not constitute protected activity under the False Claims Act.

Robertson's second argument is that his inves t igat io n into the possible overcharging

constituted protected activity. Bell maintains, however, that Robertson's investigations were part of

his job, and that it did not know of any qui tam investigation because Robertson kept the possibility

of filing a suit to himself. In response, Robertson argues that although verifying charges was part of

his job, investigating them was not.3 Robertson testified as follows:

Q. So by June of 1991 you were taking steps in furtherance of an investigation of a

qui tam action?

A. Yes.

Q. Did you bring that to anybody's attention, or was that simply your own private

thought?

A. Well, it was my own private thought.... After reviewing the record, we agree with the district court that Robertson "did nothing to

rebut his supervisors' t est imony regarding their lack of knowledge that he was conducting

investigations outside the scope of his job responsibilities in furtherance of a qui tam action." All of

Robertson's supe rviso rs testified that they had no knowledge of any activity by Robertson in

fu rtherance of

a q ui tam investigation. Moreover, Robertson conceded that he kept his q ui tam

intentions to himself. 3 Robertson never characterized his concerns as involving illegal, unlawful, or

false-claims investigations. Thus, the record contains no evidence that Robertson expressed any

concerns to his superiors other than those typically raised as part of a contract administrator's job.

Consequently, the only way Bell could have known that Robertson's activities were in furtherance of

an action under the False Claims Act would have been from his conduct. However, based on his own

testimony at trial, it is clear that Robertson's actions were consistent with the performance of his duty,

as a contract administrator, to substantiate requests for additional funding.

At the time Robertson began to request information in 1990, he believed that his actions were

in the normal course of his duties. Only sometime in 1991 does he contend he began to consider the

possibility of filing a qui tam suit. However, Robertson's conduct was the same as before he formed

his qui tam intent—asking others to obtain certain information for him:

Q. Did you think that those follow-up efforts to obtain the information were within the scope of your job responsibilities?

A. Init ially, but then—it was apparen t to me that nobody was goi ng to provi

de the

information.

Q. And when did that become apparent to you?

A. In early '91.Q. And then what did you—did you take any steps to actually obtain the information?

A. Other than to continue to ask them, because I had no access to that information....

Thus, Robertson has identified no change in his conduct that might have objectively demonstrated

his qui tam intentions.

We therefore conclude that Robertson failed to present sufficient evidence to support a finding

that Bell was aware that his investigations were in furthe rance of a q ui tam action. Without such

knowledge, Bell could not possess the retaliatory intent nec essary to establish a violation of the

whistleblower provision of the False Claims Act. The district court therefore properly granted Bell's

motion for judgment as a matter of law on Robertson's retaliation claim.

B.

As an alternative theory of recovery, Robertson asserted a common law claim for wrongful

discharge. The jury, however, never addressed this claim because under the district co urt's

instructions, if the jury awarded Robertson recovery on his retaliation claim, it was precluded from

reaching his wrongful discharge claim. After granting judgment as a matter of law on the retaliation

claim, the district court determined that Robertson was no t entitled to a jury determination of his

wrongful discharge c laim; the court concluded that Robertson's position with respect to his

retaliation claim was inconsistent with his wrongful discharge claim. As a result, the district court

dismissed the wrongful discharge claim.

In Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985), the Texas Suprem e

Court recognized an exception to the employment-at-will doctrine, which protects an employee who

is discharged for the sole reason that the employee refused to perfo rm an illegal act. In P ease v.

Pakhoed Corp., 980 F.2d 995, 997 n. 1 (5th Cir.1993), we made clear that "an employee who alleges

wrongful discharge for refusing to perform a criminal act cannot advance additional claims." Thus,

to warrant recovery under this narrow common law cause of action, the refusal to perform an illegal

act must be the sole reason advanced for the plaint iff's discharge. Robertson's assertion that he was

fired for another reason—in retaliation for investigating a qui tam action—precludes his common law

claim. The district court therefore properly dismissed Robertson's wrongful discharge claim.III.

For the above reasons, we affirm the judgment of the district court.

AFFIRMED.