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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Court Finds Evidence Showing That Whistleblower Was The Victim Of A Retaliatory Discharge

Whistleblower – Ordner mit Beschriftung, Paragraf und Waage – Recht, Gesetz, Anwalt

Having represented wrongful termination victims for almost two decades, our Marion County, Florida whistleblower lawyers know that employers often target whistleblowers for termination by scrutinizing their work performance in order to find some purported performance deficiency to justify their termination. In doing so, employers invariably do not fire other employees with the same or even worse performance deficiencies. The recent decision by the U.S. Fifth Circuit Court of Appeals in Garcia v. Professional Contract Services, Inc., Case No. 18-50144 (5th Cir. Sept. 11, 2019) illustrates than employer’s failure to fire other employees with the same or worse performance deficiencies is evidence that the employer targeted the whistleblower for termination because of his or her whistleblower activity.

Whistleblower Claims Retaliatory Discharge

In that case, Esteban Garcia (Garcia) brought a retaliation lawsuit against his former employer, Professional Contract Services, Inc. (PCS), pursuant to the False Claims Act.  Garcia claims that PCS fired him because of his whistleblower activity.

The Javits-Wagner-O’Day Act provides employment opportunities for people with disabilities by promoting their access to federal contracts. PCS makes use of these opportunities, providing custodial and grounds maintenance services on government-owned properties by employing individuals defined by the Javits-Wagner-O’Day Act as “severely disabled.” In September 2003, PCS hired Garcia as an Operations Manager. Garcia was later promoted to Senior Operations Manager, where one of his duties was to ensure that PCS was complying with its contracts with the government.

In April 2011, PCS assigned Garcia to “Job 560,” which called for custodial and ground services for sixteen separate U.S. Border locations in Texas. In March 2013, PCS discovered that one of the sixteen locations of Job 560, “Location 6,” had not been serviced in about two years, even though PCS had been billing the government for that work. PCS investigated and concluded that Garcia had not properly managed the location, so on April 9, 2013, PCS issued a disciplinary action report to Garcia. Two months later, in June 2013, PCS concluded that Garcia had failed to properly service another job: Job 660, which consisted of cleaning two locations in Texas. PCS then terminated Garcia’s employment, citing his oversight deficiencies on Jobs 560 and 660.

Garcia claims that he was fired for a different reason: his whistleblower activity. Garcia alleges that beginning in 2011, he reported to the company and to his supervisor that PCS was billing the government for cleaning the parking lots on Job 560 when that work was not actually being performed. According to Garcia, PCS ignored these reports and continued to bill the government. As a result, Garcia decided to report this information to the government. On April 24, 2013, Garcia emailed this information to the Chief Financial Officer at SourceAmerica, an agency that helps the government administer contacts under the Javits-Wagner-O’Day Act. Garcia forwarded this email to PCS’s general counsel and to SourceAmerica’s general counsel. Approximately two months after Garcia blew the whistle, PSC fired him.

Whistleblower Activity Explains Different Treatment

The trial court dismissed Garcia’s whistleblower claim. In reversing the trial court’s dismissal and reinstating Garcia’s whistleblower claim, the Fifth Circuit focused on evidence showing that another employee was not fired despite having similar performance deficiencies as Garcia. In particular, the appellate court observed that another Operations Manager, Rodas, had a history of similar performance problems. In fact, the court of appeals pointed out, it was under Rodas’ management that PCS stopped cleaning Location 6 of Job 560. “While Garcia was fired for his mistakes on Job 560,” the appellate court explained, PCS “gave Rodas multiple opportunities to improve his performance without terminating him.” Thus, the Fifth Circuit concluded, a reasonable jury could find that Garcia’s whistleblower activity “explains the difference in treatment between these two employees.”

Free Case Evaluation With Ocala Whistleblower Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, our Marion County, Florida whistleblower attorneys have been fighting for the rights of employees for almost twenty years. If you have been fired for engaging in whistleblower activity or have questions about your rights as a whistleblower, please contact our office for a free consultation with our Marion County, Florida whistleblower lawyers. Our employment and labor law attorneys take whistleblower cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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