UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1124

SHAREL FARMER,

Plaintiff - Appellant,

v.

EAGLE SYSTEMS AND SERVICES, INCORPORATED; DATA SOLUTIONS & 

TECHNOLOGY (DST), INC.,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. W. Earl Britt, Senior 

District Judge. (5:14-cv-00403-BR)

Argued: March 22, 2016 Decided: July 1, 2016

Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit 

Judge. 

Affirmed by unpublished opinion. Judge Wynn wrote the opinion, 

in which Judge Diaz and Senior Judge Davis joined.

ARGUED: Ralph Thomas Bryant, Jr., Newport, North Carolina, for 

Appellant. Justin N. Davis, MULLEN HOLLAND & COOPER, P.A., 

Gastonia, North Carolina; Jang Hwan Jo, SMITH, ANDERSON, BLOUNT, 

DORSETT, MITCHELL & JERNIGAN, L.L.P., Raleigh, North Carolina, 

for Appellees. ON BRIEF: Mario White, Clinton, North Carolina, 

for Appellant. Kerry A. Shad, SMITH, ANDERSON, BLOUNT, DORSETT, 

MITCHELL & JERNIGAN, L.L.P., Raleigh, North Carolina, for 

Appellee Eagle Systems and Services, Incorporated; Nancy B. 
2

Paschall, MULLEN HOLLAND & COOPER, P.A., Gastonia, North 

Carolina, for Appellee Data Solutions & Technology (DST), Inc.

Unpublished opinions are not binding precedent in this circuit.
3

WYNN, Circuit Judge:

Plaintiff Sharell1 Farmer contends that he engaged in an

activity protected by the anti-retaliation provision of the 

False Claims Act (FCA) when, in the course of an internal 

investigation, he reported a single incident of theft of 

government property from a warehouse operated by his employers. 

Because Farmer’s report of theft was neither “in furtherance of 

an action under” the FCA nor an “effort[] to stop” an FCA 

violation, 31 U.S.C. § 3730(h)(1), we affirm.

I.

Farmer was employed by Defendants Eagle Systems and 

Services, Inc. (Eagle Systems) and Data Solutions & Technology, 

Inc. (DST) under a joint contract, and he was supervised by DST.2 

Defendants are federal government contractors who jointly 

operate a supply warehouse. 

In August 2012, Farmer witnessed warehouse supervisor Keith 

Armstrong and his assistant steal government-owned night vision 

goggles and convey them to a third person. A few days later, at 

 1 According to counsel, Mr. Farmer’s first name is 

“Sharell.” The first name was initially misspelled in the 

complaint, and an amended complaint was filed specifically to 

correct the error. The lower court docket was never corrected 

to reflect the change, however. 2 We accept the facts Farmer alleged in his amended 

complaint as true and draw reasonable inferences in his favor in 

reviewing this dismissal for failure to state a claim. See E.I. 

du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 

440 (4th Cir. 2011). 
4

the request of Eagle Systems Project Manager Roy Fischel, Farmer

wrote a statement reporting the theft he had witnessed. After 

receiving the report, Fischel disclosed Armstrong—the supervisor

who had committed the theft—the contents of the report and that 

Farmer had authored it. 

From then until the day Farmer left his employment, he 

suffered “persistent and numerous incidences of retaliation, 

ridicule, threats, intimidation and harassment.” J.A. 5. His 

supervisors isolated him from all other employees, stared at him 

threateningly, and issued numerous disciplinary write-ups to him 

“for frivolous and baseless reasons.” J.A. 6–7. Although 

Farmer tried to get help from the Eagle Systems and DST 

management teams regarding the mistreatment, they did not 

intervene to stop it. Farmer eventually found this working 

environment unbearable and left his job in April 2013. 

In July 2014, Farmer filed a complaint alleging, inter

alia, that Defendants violated the anti-retaliation provision of 

the FCA.3 Defendants filed motions to dismiss under Federal Rule 

 3 Farmer also brought a claim for breach of non-delegable

duty under North Carolina common law, a negligence claim under 

North Carolina common law, and a North Carolina civil conspiracy 

claim. Farmer consented below to the dismissal of the breach of 

non-delegable duty claim. On appeal, we affirm the district 

court’s dismissal of Farmer’s negligence claim because Farmer 

has not cited, and we are not aware of, any North Carolina case 

articulating a duty to keep an employee’s identity confidential 

during internal investigations—the conduct undergirding this 
5

of Civil Procedure 12(b)(6). The district court granted the 

motions and dismissed Farmer’s claims, mainly on the ground that 

the reported theft was not a protected activity under the FCA’s 

anti-retaliation provision. Farmer timely appealed.

II.

We review a district court’s dismissal for failure to state 

a claim de novo. U.S. ex rel. Rostholder v. Omnicare, Inc., 745 

F.3d 694, 700 (4th Cir. 2014). “To survive a motion to dismiss, 

a complaint must contain sufficient factual matter, accepted as 

true, to ‘state a claim to relief that is plausible on its 

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).4

 

claim in Farmer’s complaint. Moreover, the duty of reasonable 

care generally applies when an individual’s conduct creates a 

risk of “injury to the person or property of the other,” which 

cannot be inferred here. See Estate of Mullis by Dixon v. 

Monroe Oil Co., 505 S.E.2d 131, 137 (N.C. 1998) (quoting Dail v. 

Taylor, 66 S.E. 135, 136 (N.C. 1909)); see also Restatement 

(Third) of Torts: Phys. & Emot. Harm § 7(a) (“An actor 

ordinarily has a duty to exercise reasonable care when the 

actor’s conduct creates a risk of physical harm.” (emphasis 

added)). We also affirm the district court’s dismissal of 

Farmer’s civil conspiracy claim because, as Farmer concedes,

North Carolina law does not recognize such a claim as an 

independent cause of action, see Toomer v. Garrett, 574 S.E.2d 

76, 92 (N.C. Ct. App. 2002), and Farmer’s civil conspiracy claim

thus rises and falls with his FCA claim. 

4 To state a claim under the FCA’s anti-retaliation 

provision, a plaintiff need only satisfy the notice-pleading 

standard under Rule 8(a) of the Federal Rules of Civil 

Procedure, not the heightened pleading standard of Rule 9(b). 
6

Congress passed the FCA to discourage fraud against the 

federal government by contractors. See Glynn v. EDO Corp., 710 

F.3d 209, 213 (4th Cir. 2013). To that end, the statute 

includes an anti-retaliation provision to protect 

whistleblowers. Id. at 214. That provision prohibits 

retaliation against “lawful acts done . . . in furtherance of an 

action” under the FCA, and thanks to a 2009 amendment, the 

provision also protects “other efforts to stop 1 or more 

violations of” the FCA. 31 U.S.C. § 3730(h)(1); see Young v. 

CHS Middle E., LLC, 611 F. App’x 130, 132–3 (4th Cir. 2015) 

(unpublished). To bring a successful claim under the antiretaliation provision, a plaintiff must show three elements: 

“(1) he engaged in protected activity, (2) the employer knew 

about the activity, and (3) the employer took adverse action 

against him as a result.” Smith v. Clark/Smoot/Russell, 796 

F.3d 424, 433 (4th Cir. 2015).

At the heart of this appeal is the “protected activity”

element. This Court has held that an act is protected under the 

FCA when it “reasonably could lead to a viable FCA action.” 

Mann v. Heckler & Koch Def., Inc., 630 F.3d 338, 344 (4th Cir. 

2010) (quoting Eberhardt v. Integrated Design & Constr., Inc., 

 

See Smith v. Clark/Smoot/Russell, 796 F.3d 424, 433 (4th Cir. 

2015). 
7

167 F.3d 861, 869 (4th Cir. 1999)). Although this Court has not 

yet articulated the precise scope of FCA-protected activity in 

light of the 2009 “efforts to stop” amendment, see Smith, 796 

F.3d at 434,5 it is unnecessary to do so here. It is clear that 

a single report of theft, without any facts suggesting an 

underlying fraud, is not plausibly an act “in furtherance of an 

action under” the FCA or an “effort[] to stop” an FCA violation.

31 U.S.C. § 3730(h)(1). 

Farmer does not argue, nor could he, that the underlying 

theft he reported was an FCA violation. See 31 U.S.C. 

§ 3729(a)(1). However, Farmer invites us to consider how his

report of the theft might have indirectly prevented future

fraudulent deliveries to the government. While the speculative 

connection Farmer seeks to draw between his report, tighter 

inventory controls, and the eventual prevention of an FCA 

violation is perhaps possible, Farmer has alleged no facts 

making that attenuated connection plausible. See Iqbal, 556 

U.S. at 678. In fact, Farmer’s complaint indicates only that an

Eagle Systems manager required him to write a statement 

 5 Circuit courts have adopted different approaches to the 

“protected activity” element in light of the 2009 amendment. 

Compare Schell v. Bluebird Media, LLC, 787 F.3d 1179, 1187 (8th 

Cir. 2015) (applying the same pre-2009 protected activity test), 

with Halasa v. ITT Educ. Servs., Inc., 690 F.3d 844, 847–48 (7th 

Cir. 2012) (suggesting that the amended FCA anti-retaliation 

provision adds a new category of protected activities).
8

reporting the theft and that he complied. The complaint does 

not allege facts that can plausibly demonstrate that he acted 

“in furtherance of an action under” the FCA or undertook any 

“efforts to stop” an FCA violation. 31 U.S.C. § 3730(h)(1).

III.

Even accepting all alleged facts as true and drawing all 

reasonable inferences in Farmer’s favor, we cannot conclude that 

Farmer’s activity here was protected by the FCA. Therefore, we 

affirm the judgment. 

AFFIRMED