While at a bar at the U.S. embassy compound in Baghdad, Iraq, Sana Kappouta was shoved by a drunk co-worker but wasn’t injured. After she reported the incident, her employer tried to transfer her to a different position. After initially refusing the transfer, she was fired.
Kappouta worked as a linguist for Valiant Integrated Services on a United States Department of Defense (DoD) contract. While at Valiant, she worked and resided at a U.S. Embassy compound in Baghdad. In December 2017, after work, at the Embassy bar, a co-worker shoved her and nearly knocked her down. Later that night, she recounted the incident to her supervisor who was a friend of the co-worker. She urged Kappouta not to "make any problems," explaining that the co-worker was drunk.
The next morning, Regional Security Officers (RSOs) from the State Department contacted Kappouta and pressured her to make a formal complaint about the incident. She declined at first, expressing fear of retaliation and losing her job. The RSOs then reported the incident to Valiant management. They again pressured her to report the shove, assuring her there would be no repercussions for her. Kappouta then provided a written statement to the RSOs including the fact that she’d been asked to do so and that it was "just for the records and not as a report."
In January 2018, Kappouta was told that she was being transferred and that it was at the behest of Kappouta's Army unit. Kappouta was told by her manager that if she didn’t accept the transfer, she’d lose her job.
Kappouta went next to the Army officials with whom she worked on the DoD-Valiant contract. They told her that the Army hadn’t requested her transfer and that Valiant was behind it. Kappouta met with her manager to accept the transfer, but was told instead she was being fired for her refusal to accept the transfer and her "jump[ing] the line of command" to complain to Army personnel.
Kappouta first filed a complaint with DoD Office of the Inspector General (OIG), initiating an investigation. The OIG prepared a report finding her claim meritorious and recommending she be reinstated. Kappouta filed suit under the Defense Contractor Whistleblower Protection Act (DCWPA), alleging she was terminated in retaliation for making protected disclosures under the Act. Valiant filed a motion to dismiss her suit for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The United States District Court for the Southern District of California held that Kappouta failed to allege a protected disclosure, given the lack of a legal violation contemplated by the whistleblower statute and a nexus (or link) between the shove and the DoD-Valiant contract.
The Ninth Circuit’s Analysis
Judge Paul J. Kelly, Jr. wrote that to survive a motion to dismiss under the DCWPA, a plaintiff must plausibly allege that:
- She made a disclosure that the plaintiff "reasonably believe[d]" is evidence of a violation related to a DoD contract; and
- Her employer discharged, demoted, or otherwise discriminated against her because of that disclosure.
Judge Kelly said that no one contested that Kappouta's complaint adequately alleged she suffered an adverse employment action based on her compliance with an internal investigation. At the pleading stage, she plausibly alleged she was transferred (and ultimately discharged) because of one or more reports she made about the shove. As a result, the question was whether she plausibly alleged a reasonable belief that her complaint about the shoving incident encompassed one of the acts described in § 4701(a)(1)(A)-(C).
To give rise to whistleblower protection here, the disclosure must be one that the plaintiff reasonably believes is related to an act described in § 4701(a)(1)(A)-(C):
- Gross mismanagement of a Department of Defense contract or grant;
- A gross waste of Department funds;
- An abuse of authority relating to a Department contract or grant;
- A violation of law, rule, or regulation related to a Department contract; or
- A substantial and specific danger to public health or safety.
Judge Kelly explained that the task of the Court of Appeals was to interpret the meaning of "a violation of law . . . related to a Department contract." In the context of a defense contract, he said that a violation of law is related to the contract if it’s related to the purpose of the contract or affects the services provided by the defense contractor to the DoD. And a disclosure is protected if a disinterested observer with knowledge of the operative facts would reasonably conclude that the disclosure evidences a violation of law related to a defense contract in this manner.
Kappouta argued that the shove constituted an assault in violation of § 113(a)(5), which made simple assault a crime in certain federal jurisdictions. In her view, violation of this statute is tantamount to a "violation of law" contemplated by the Act. The defendants contended that the conduct of her employer didn’t rise to the level of unlawful behavior contemplated by the DCWPA and, further, bore no relation to the DoD-Valiant contract.
Judge Kelly said that at this stage, the Court of Appeals need not decide whether the underlying facts could constitute a simple assault. Nor was it necessary to determine whether a violation of § 113(a)(5) could ever give rise to whistleblower protection. Rather, the Court had to affirm the dismissal of the complaint because it failed to allege a sufficient nexus between the shove and the DoD Valiant contract.
The statutory text is clear that this standard is a relatively forgiving one, the judge said. So, Kappouta was required to only plead a "reasonable belief" that her disclosures were protected, and that belief need not be correct. But here the disclosures concerning the shoving incident were, at best, only tenuously related to the defense contract.
But Judge Kelly said that no reasonable observer would think that the incident described in the complaint would implicate the clause requiring Valiant to exercise due diligence to "prevent and detect criminal conduct." Nor would a reasonable observer conclude that the incident qualifies as a "violation of Federal criminal law involving fraud, conflict of interest, bribery or gratuity" or a "violation of the civil False Claims Act." While the shove may have been an instance of "unethical" or "improper conduct," or even arguably a criminal violation under Title 18, possibly implicating the internal control system (Kappouta could and did report the incident to Embassy security), the complaint didn’t have any plausible allegation that it is of the sort triggering the mandatory reporting of specific criminal violations under Title 18 of the U.S. Code or the False Claims Act.
Judge Kelly wrote that “[t]he disclosure must demonstrate a tangible connection to the purpose of the contract is reflected in the statutory text and comports with the analysis this and other courts have applied in analogous situations.”
Kappouta admitted that the incident at the bar bore no relation to her everyday job duties, and without some relation to the services she and her employer provided, it was difficult to imagine a relation to the contract itself.
Here, the facts concerned a personal dispute (outside of working hours), and didn’t sufficiently allege — nor would any reasonable observer believe — that they implicated the DoD-Valiant contract. The judgment of the district court was affirmed. Kappouta v. Valiant Integrated Servs., LLC, (Ninth Circuit Court of Appeal, 2/21/23).
Here, the allegations in the complaint didn’t encompass a disclosure sufficiently related to the employer’s contract to give rise to whistleblower protection. The statute limits the scope of claims giving rise to protection under the Act.
Even so, this case is a good reminder that employers should be aware of the proper procedures for discipline and document the process that leads to employee termination. Whistleblowers have protections in California, and employers should understand how to proceed with such a claim.
The author can be reached at Eanet, PC in Los Angeles, Danielle@Eanetpc.com.