KILLGORE v. SPECPRO PROFESSIONAL SERVICES, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AARON KILLGORE,

Plaintiff-Appellant,

SPECPRO PROFESSIONAL

SERVICES, LLC,

Defendant-Appellee.

No. 21-15897

D.C. No.

5:18-cv-03413-EJD

OPINION

Appeal from the United States District Court

for the Northern District of California

Edward J. Davila, District Judge, Presiding

Argued and Submitted July 13, 2022

Pasadena, California

Before: Mark J. Bennett and Gabriel P. Sanchez, Circuit

Judges, and Elizabeth E. Foote,

District Judge.

Opinion by Judge Sanchez

__________________

The Honorable Elizabeth E. Foote, United States District Judge for the

Western District of Louisiana, sitting by designation.

FILED

OCT 20 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

SUMMARY

California Law / Employment Matters /

Environmental Law

The panel affirmed in part and reversed in part the

district court’s summary judgment in favor of plaintiff’s

former employer, SpecPro Professional Services, LLC, on

plaintiff’s retaliation and wrongful termination claims.

While he was consulting on an environmental project for

the U.S. Army Reserve Command, plaintiff believed he was

required to prepare an environmental assessment in a manner

that violated federal law. Plaintiff was terminated after

reporting the suspected illegality to the client and his

supervisor, William Emerson, at SpecPro. Plaintiff brought

statutory and common law claims of retaliation and wrongful

termination in a California state court action that was

removed to federal court.

Plaintiff alleged his employment was terminated in

violation of the California Whistleblower Protection Act,

Cal. Labor Code § 1102.5(b), (c). The panel first addressed

the district court’s determination that plaintiff’s disclosures

to his supervisor were not actionable because the supervisor

was not “a person with authority over the employee or

another employee who has the authority to investigate,

discover, or correct the violation or noncompliance.” The

district court determined that plaintiff’s disclosures to the

supervisor were immaterial and insufficient as a matter of

law to establish a whistleblower violation under section

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

1102.5(b). Although the Supreme Court of California has

not addressed the issue, the panel concluded that the district

court misconstrued the provision. The panel held that

plaintiff’s disclosures to his supervisor—as a “person with

authority over the employee”—provided an independent

ground for asserting a whistleblower retaliation claim under

section 1102.5(b). Such a construction was consistent with

the broad remedial purpose of the California Whistleblower

Protection Act. The panel predicted that the California

Supreme Court would hold that section 1102.5(b) prohibits

employers from retaliating against employees who disclose

wrongdoing to any one of several enumerated

avenues. Because the district court wrongly concluded that

disclosures to the supervisor were not protected under the

whistleblower statute, it did not consider this evidence in

ruling on SpecPro’s motion for summary judgment. The

panel concluded that the evidence created a genuine dispute

of material fact as to whether SpecPro retaliated against

plaintiff for engaging in protected whistleblower activity.

The district court also disregarded plaintiff’s disclosures

to Army Reserve project leader Chief Laura Caballero

because: (1) disclosing potential violations to Caballero was

not a protected activity because it was a part of the “normal

duties” of his employment; and (2) plaintiff’s disclosures

were unprotected because Caballero was assertedly a

“wrongdoer” in the alleged noncompliance with the National

Environmental Policy Act (“NEPA”), and, therefore,

Caballero’s own wrongdoing was not a “disclosure” to

her. The panel held that both determinations rested on a

misapplication of California law.

First, the panel held that the district court presumed,

without explaining why, that Caballero was plaintiff’s

supervisor with authority over him. The record does not

support that supposition. Plaintiff’s disclosures to her were

properly understood as a disclosure to a “government

agency” under the plain language of the statute. Cal. Lab.

Code § 1102.5(b). Section 1102.5(b), as amended in 2014,

provides that a whistleblower’s disclosures are protected

regardless of whether the disclosure was part of the

employee’s normal duties. The panel held that plaintiff’s

discussions with Caballero of potential violations of NEPA

were clearly protected under state whistleblower law at the

time they were made. Second, the panel held that several

state court appellate courts have held that disclosures to

wrongdoers are protected under section 1102.5(b). The

district court court’s reliance on Mize-Kurman v. Marin

Community College District, 136 Cal. Rptr. 3d 259 (Ct. App.

2012), was inapt. The panel held that the district court

misapplied California law when it rejected evidence of

plaintiff’s disclosures to Caballero. The panel further held

that plaintiff raised genuine issues of material fact as to

whether he disclosed potential violations of law to Caballero

and whether such disclosures were a contributing factor in

his termination in violation of state law.

Next, concerning the section 1102.5(b) claim, the panel

addressed whether plaintiff reasonably believed that the

information disclosed a violation of a federal statute or

noncompliance with a federal rule or regulation. In other

words, did plaintiff reasonably believe that NEPA was being

violated in the preparation on an environmental assessment

for a proposed action by the 1-158th Assault Helicopter

Battalion to modify the use of landing sites on land owned

by the Texas Department of Criminal Justice near Conroe,

Texas (“Conroe EA”). The district court held that plaintiff

could not have reasonably believed that omission of the prior

helicopter operations from the Conroe EA was a violation of

NEPA and its regulations because the EA was a “forward

looking” document that need only assess the potential

impacts of the proposed action. The panel held that the

district court misconstrued the holding in Klamath-Siskiyou

Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989 (9th

Cir. 2004). The panel held that the district court’s assertion

that the EA was only a “forward looking” document that

need not consider prior activity was contradicted by the

Council on Environmental Quality regulations and

precedent. As plaintiff’s testimony and evidence identified,

the Conroe EA provided no analysis or discussion of the

prior helicopter activities. The cumulative effect of these

prior activities, when combined with the proposed assault

helicopter landing zone operations, could have significant

effect on the environment. The panel concluded that the

district court erred in determining, as a matter of law, that

plaintiff had no reasonable cause to believe that they were

evaluating NEPA by failing to consider and include the prior

helicopter operations in the Conroe EA.

The panel addressed two remaining matters on the

section 1102.5(b) claim. First, viewing the evidence in the

light most favorable to Plaintiff’s claims, the panel held that

plaintiff’s concern about the inability to meet the three-

month deadline reflected a broader concern that the team

was being forced to prepare a noncompliant report that

unlawfully excluded the prior helicopter operations; and the

reasonableness of his belief was a factual question for the

jury to determine. Second, the panel rejected SpecPro’s

assertion that plaintiff could not have reasonably believed

there was a violation of NEPA because such violation can

only occur when the EA was signed, and plaintiff was fired

before the Conroe EA was completed. This argument was

contradicted by the plain language of the statute.

The panel concluded that plaintiff’s disclosures to his

supervisor and Caballero were protected under section

1102.5(b), and he raised genuine issues of material fact as to

what illegal conduct he disclosed, whether he had reasonable

cause to believe that federal law was being violated, and

whether his whistleblowing activity was a contributing

factor in his termination of employment. The panel reversed

the district court’s summary judgment order on the section

1102.5(b) retaliation claim. Because his claim of wrongful

termination in violation of public policy was derivative of

his retaliation claim, the panel also reversed the grant of

summary judgment on that claim.

Concerning plaintiff’s section 1102.5(c) claim, the panel

agreed with the district court’s grant of summary judgment

after finding that plaintiff presented no evidence he had

refused to engage in illegal activity. One of the elements of

this claim requires a determination whether the plaintiff was

retaliated against for refusing to participate in the identified

activity. While plaintiff raised extensive concerns about the

report, no evidence was adduced that plaintiff refused to

comply with Caballero’s directives concerning the Conroe

EA or otherwise refused to complete the EA. The panel

therefore affirmed the district court’s summary judgment for

SpecPro on this claim.

COUNSEL

Henry Harmeling IV (argued), Law Office of Henry

Harmeling IV, Cardiff, California; Geoffrey C. Lyon, Lyon

Law PC, Long Beach, California; for Plaintiff-Appellant.

Amy Todd-Gher (argued) and Denise Tran-Nguyen

(argued), Littler Mendelson P.C., San Diego, California;

Adam E. Brauner; for Defendant-Appellee.

KILLGORE V. SPECPRO PRO. SERV. LLC 1

OPINION

SANCHEZ, Circuit Judge:

Plaintiff Aaron Killgore appeals the district court’s grant

of summary judgment for his former employer, Defendant

SpecPro Professional Services, LLC (“SpecPro”). While

consulting on an environmental project for the United States

Army Reserve Command, Killgore believed he was being

required to prepare an environmental assessment in a manner

that violated federal law. He was terminated shortly after

reporting the suspected illegality to the client and his

supervisor at SpecPro. He brought statutory and common

law claims of retaliation and wrongful termination in a state

court action that was removed to federal court.

We conclude the district court misapplied the substantive

law of California. The court determined in error that

Killgore’s disclosures were not protected under the state

whistleblower statute and therefore disregarded evidence

material to his claims. Properly considered, the evidence

raises genuine disputes of material fact as to the nature of

Killgore’s disclosures, whether he had reasonable cause to

believe that federal law was being violated, and whether his

whistleblowing activity was a contributing factor in his

termination of employment. We reverse the district court’s

entry of summary judgment as to claims of retaliation and

wrongful termination that are based on his protected

disclosures. However, we affirm as to his claim of

retaliation based on the refusal to participate in illegal

activity, as Killgore presented no evidence in support of that

claim.

2 KILLGORE V. SPECPRO PRO. SERV. LLC

Defendant SpecPro is an environmental services firm

that assists government agencies with the preparation of

environmental assessments and other reports required under

the National Environmental Policy Act (“NEPA”), 42

U.S.C. § 4321 et seq. and federal regulations. SpecPro

contracted with the United States Army Reserve Command

(“Army Reserve”) to provide environmental and training

support services for the 63rd Regional Support Command

(“63rd Command”), headquartered in Mountain View,

California. One of the projects under contract involved

preparing an environmental assessment for a proposed

action by the 1-158th Assault Helicopter Battalion (“1-

158th”) to modify the use of twelve landing sites on land

owned by the Texas Department of Criminal Justice near

Conroe, Texas (“Conroe EA”). The 63rd Command

proposed designating the Conroe site as a staging area for

Blackhawk helicopter assault training missions, which

would require the aircraft to land and be supported by

refueling trucks and personnel. Previously, the 1-158th

performed Apache helicopter attack missions which

involved hovering rather than landing maneuvers at Conroe.

Aaron Killgore was hired by SpecPro in June 2015 as a

program manager and assigned to support the Conroe EA.

__________________

SpecPro was initially asked to prepare a Record of Environmental

Consideration (“REC”), a statement that “briefly describes the proposed

[Army] action and timeframe . . . and clearly shows how an action

qualifies for a [Categorical Exclusion].” 32 C.F.R. § 651.19. Proposed

actions may be excluded from compliance with NEPA if “they do not

individually or cumulatively have a substantial effect on the human

environment.” 32 C.F.R. § 651.11(c). The REC was submitted March

2017 and proposed that no environmental assessment be undertaken, but

the 63rd Command denied the request and in April 2017 directed the

completion of the Conroe EA.

KILLGORE V. SPECPRO PRO. SERV. LLC 3

SpecPro’s team included Killgore, Oskar Burger, and

Killgore’s supervisor, William Emerson. SpecPro also

retained AGEISS, an environmental consulting company, to

assist in preparing the Conroe EA, and AGEISS assigned

Melissa Russ to the contract. The Army Reserve’s project

leader was Chief Laura Caballero, the Environmental

Division Chief of the 63rd Command.

During the SpecPro team’s environmental due diligence,

Killgore learned that the Army Reserve had already been

using the Conroe site to run helicopter attack training

missions for more than a decade. Killgore testified that he

had traveled to Fort Bragg and spoken to an Air Force pilot

who mentioned there had been prior refueling exercises at

Conroe, which indicated to him that helicopters previously

landed in an assault battalion and were refueled by ground

vehicles. Burger was told by “one of the guys at Conroe”

that there had been many low-level flying and training

exercises at Conroe for very long time, possibly since the

1990s.

The prior helicopter activity at Conroe raised several

concerns for the SpecPro team in its evaluation of

environmental impacts. SpecPro was unable to locate any

lease agreement authorizing the Army Reserve to use state

land for helicopter operations or describing the permissible

scope of such activity. No environmental condition of

property report had been requested to determine if there were

prior oil spills or refuelings at Conroe, as is typical when the

Army leases or acquires property and must determine any

environmental liabilities. No endangered species report had

been prepared or requested of state agencies to determine if

prior operations had disrupted endangered or state-sensitive

species. No soil samples had been taken to test for oil spills

or soil erosion caused by motorized vehicles, biological

surveys to determine if invasive plant species had been

4 KILLGORE V. SPECPRO PRO. SERV. LLC

introduced by human activity, cultural surveys to ascertain

any impacts on Native American land or artifacts, or storm

water, pollution, or aviation management surveys to

determine other possible environmental effects by low-level

flight operations.

After SpecPro was assigned the Conroe EA in April

2017, Chief Caballero informed SpecPro that the report

would need to be completed in three months to permit

helicopter training operations scheduled for August 2017 to

proceed. Killgore, Burger, and Russ expressed concern to

her over the abbreviated timeline, explaining that

environmental assessments often required nine to eighteen

months of work and the prior helicopter operations added

greatly to the complexity of the project. Killgore separately

communicated to Emerson that the timeline was

unreasonably short given its complexity and how little was

documented or known about the prior training missions.

Another point of contention arose when Chief Caballero

instructed the SpecPro team around May 2017 to remove or

refrain from referencing the past helicopter activity from the

Conroe EA. Chief Caballero directed Killgore to tell his

team not to send emails or keep a written record of the prior

use issues surrounding the Conroe EA. SpecPro was not

allowed to pull environmental reports detailing the history of

the Conroe parcels or visit the Conroe site to observe its

actual conditions. Chief Caballero stated that prior

operations were not relevant to an environmental assessment

under NEPA because the proposed government action

involved helicopter landings, not helicopters hovering above

ground. Chief Caballero testified that the instruction to omit

prior helicopter activity from the Conroe EA came from her

superiors in the Army Reserve.

KILLGORE V. SPECPRO PRO. SERV. LLC 5

Killgore and Russ strongly disagreed with this directive.

Killgore told Chief Caballero that failing to report the prior

helicopter training activities in the Conroe EA was a

violation of NEPA and federal regulations. Russ separately

shared with Killgore that omitting all mention of past

activities was “unethical and probably illegal” because they

were not being fully transparent with the public about the

nature of the proposed action, and she wanted her name

removed from the assessment if the prior trainings were not

addressed.

Following these conversations, Chief Caballero called

Emerson, Killgore’s supervisor at SpecPro, to raise concerns

about Killgore’s “pushback on the Conroe EA.” Emerson

conveyed Chief Caballero’s dissatisfaction to Killgore.

Killgore responded that he “didn’t have the information [the

team] needed to complete this document accurately,” such

as “cultural, endangered species, erosion, property, and

pollution-related” information. Emerson told Killgore to

“do what the client asked” and “finish the environmental

assessment in three months.” Killgore contends that he

discussed with Emerson the “legality” of the Army

Reserve’s instruction to “hide the . . . past operations

associated with these helicopter [trainings].” Killgore

expressed concern that there were “multiple violations” of

NEPA because “we were directed to not be transparent about

[past operations]” and “we weren’t allowed to send people

on the ground to inspect the parcels.” Emerson emphasized

that their “goal is to keep [Chief Caballero] happy so that we

can get the option year renewal in 2018 and the award again

in 2019.”

Despite Chief Caballero’s directive, Russ and Burger

included several oblique references to the prior helicopter

operations in the draft Purpose and Need statement, and

Description of Proposed Action and Alternatives (DOPAA)

6 KILLGORE V. SPECPRO PRO. SERV. LLC

chapters, writing that the proposed action was “a transfer of

helicopter battalion from [attack to assault].” Chief

Caballero approved the draft without reading it, and Burger

sent it to the 63rd Command. Upon learning that Burger had

included these references in the draft, Chief Caballero

immediately instructed the SpecPro team to take them out.

Chief Caballero communicated to Emerson her “serious

concern that [Burger] did not follow specific guidance and

instruction from leadership” and suggested that Killgore had

encouraged him to disobey. Emerson directed Killgore to

apologize to Chief Caballero for his disobedient attitude and

for Burger’s conduct, stating “[SpecPro] needs to approach

[Chief Caballero] and her instructions with a ‘yes’ attitude

even if priorities/goals shift wildly as long as directives are

legal, moral, and ethical and exist within our scope.”

Killgore and Burger both apologized to Chief Caballero.

On June 22, 2017, Chief Caballero met with Emerson

and Dr. Stephen Alexander, the general manager of SpecPro,

at a regularly scheduled meeting. Caballero expressed deep

dissatisfaction with Killgore’s lack of cooperation in the

Conroe EA and his performance in other work-related

matters. Dr. Alexander described it as “the worst client

meeting [he] ever had.” That afternoon, Emerson fired

Killgore for failing to meet company and customer

expectations.

SpecPro completed the Conroe EA in September 2017,

which at the time of submission made no mention of the

prior helicopter activities in its Purpose and Need and

DOPAA chapters. Russ stated that after the firing, the

SpecPro team understood that “this was [the Army

Reserve’s] document, so we’ll write it the way they want it.”

While Russ continued to have concerns that the Conroe EA

had not been fully transparent about the proposed action, her

KILLGORE V. SPECPRO PRO. SERV. LLC 7

position softened after seeing the Army Reserve’s extended

public outreach.

In May 2018, Killgore filed an action in the Santa Clara

County Superior Court alleging state law claims of unlawful

retaliation in violation of the California Whistleblower

Protection Act, Cal. Lab. Code § 1102.5(b), (c), wrongful

termination in violation of public policy, and failure to pay

wages due upon termination, Cal. Lab. Code §§ 202-203.

SpecPro removed the action to federal court on the basis of

diversity jurisdiction. On December 19, 2019, the district

court granted SpecPro’s partial motion for summary

judgment as to retaliation and wrongful termination. The

parties resolved the wages claims by joint stipulation.

Killgore timely appealed the district court’s judgment.

II.

We review de novo a district court’s order granting

summary judgment. Botosan v. Paul McNally Realty, 216

F.3d 827, 830 (9th Cir. 2000). We “must determine whether,

viewing the evidence in the light most favorable to the

nonmoving party, there are any genuine issues of material

fact and whether the district court correctly applied the

relevant substantive law.” Lopez v. Smith, 203 F.3d 1122,

1131 (9th Cir. 2000) (en banc).

We review de novo the district court’s interpretation of

California law. Judd v. Weinstein, 967 F.3d 952, 955 (9th

Cir. 2020) (citing Salve Regina Coll. v. Russell, 499 U.S.

225, 231 (1991)). Absent controlling authority from the

state supreme court, “a federal court must ‘predict how the

highest state court would decide the [state law] issue using

intermediate appellate court decisions, decisions from other

jurisdictions, statutes, treatises, and restatements as

guidance.’” Kaiser v. Cascade Cap., LLC, 989 F.3d 1127,

8 KILLGORE V. SPECPRO PRO. SERV. LLC

1131-32 (9th Cir. 2021) (brackets in original) (quoting Judd,

967 F.3d at 955-56).

III.

Killgore asserts that his termination of employment

violated the California Whistleblower Protection Act

because he was retaliated against for disclosing what he

reasonably believed to be violations of federal law and

regulation in the preparation of the Conroe EA, and because

he was fired for refusing to participate in illegal activity.

Cal. Lab. Code § 1102.5(b), (c) (collectively “section

1102.5”). Killgore further alleges a claim of wrongful

termination in violation of public policy that is derivative of

his statutory retaliation claims.

As the California Supreme Court recently explained,

Section 1102.5 provides whistleblower

protections to employees who disclose

wrongdoing to authorities. As relevant here,

section 1102.5 prohibits an employer from

retaliating against an employee for sharing

information the employee “has reasonable

cause to believe . . . discloses a violation of

state or federal statute” or of “a local, state,

or federal rule or regulation” with a

government agency, with a person with

authority over the employee, or with another

employee who has authority to investigate or

correct the violation.

Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703,

709 (2022) (ellipsis in original). “An employee injured by

prohibited retaliation may file a private suit for damages”

against his former employer. Id.

KILLGORE V. SPECPRO PRO. SERV. LLC 9

To assert a claim for whistleblower retaliation in

violation of section 1102.5,

the plaintiff [must] establish, by a

preponderance of the evidence, that

retaliation for an employee’s protected

activities was a contributing factor in a

contested employment action. . . . Once the

plaintiff has made the required showing, the

burden shifts to the employer to demonstrate,

by clear and convincing evidence, that it

would have taken the action in question for

legitimate, independent reasons even had the

plaintiff not engaged in protected activity.

Vatalaro v. Cnty. of Sacramento, 294 Cal. Rptr. 3d 389, 398

(Ct. App. 2022) (ellipsis in original and quotation marks

omitted) (quoting Lawson, 12 Cal. 5th at 718). Under

Lawson, California courts must evaluate section 1102.5

claims under the governing framework set forth in section

1102.6 of the Labor Code, not the three-part burden shifting

framework under McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). Lawson, 12 Cal. 5th at 718.

We first address the district court’s determination that

Killgore’s disclosures to his supervisor Emerson were not

actionable because Emerson was not “a person with

authority over the employee or another employee who has

the authority to investigate, discover, or correct the violation

or noncompliance.” Although the district court accepted that

Killgore had discussed the potential illegality of the Conroe

EA with Emerson, the court determined that Killgore’s

disclosures to Emerson were immaterial and insufficient as

10 KILLGORE V. SPECPRO PRO. SERV. LLC

a matter of law to establish a whistleblower violation under

section 1102.5(b).

Section 1102.5 provides in relevant part:

(b) An employer, or any person acting on

behalf of the employer, shall not retaliate

against an employee for disclosing

information, or because the employer

believes that the employee disclosed or may

disclose information, to a government or law

enforcement agency, to a person with

authority over the employee or another

employee who has the authority to

investigate, discover, or correct the violation

or noncompliance, or for providing

information to, or testifying before, any

public body conducting an investigation,

hearing, or inquiry, if the employee has

reasonable cause to believe that the

information discloses a violation of state or

federal statute, or a violation of or

noncompliance with a local, state, or federal

rule or regulation, regardless of whether

disclosing the information is part of the

employee’s job duties.

behalf of the employer, shall not retaliate

against an employee for refusing to

participate in an activity that would result in

a violation of state or federal statute, or a

violation of or noncompliance with a local,

state, or federal rule or regulation.

Cal. Lab. Code § 1102.5.

KILLGORE V. SPECPRO PRO. SERV. LLC 11

In interpreting a state statute, we must follow the state’s

rules of statutory interpretation, here California. Bass v.

Cnty. of Butte, 458 F.3d 978, 981 (9th Cir. 2006). “As in any

case involving statutory interpretation, our fundamental task

here is to determine the Legislature’s intent so as to

effectuate the law’s purpose. We begin by examining the

statute’s words, giving them a plain and commonsense

meaning.” People v. Gonzalez, 2 Cal. 5th 1138, 1141 (2017)

(alterations and quotation marks omitted) (quoting People v.

Scott, 58 Cal. 4th 1415, 1421 (2014)). “We consider the

language in the context of the entire statute and the statutory

scheme of which it is a part, harmonizing provisions relating

to the same subject matter, to the extent possible.” Satele v.

Super. Ct., 7 Cal. 5th 852, 858-59 (2019) (citations omitted).

“If possible, significance should be given to every word,

phrase, sentence and part of an act in pursuance of the

legislative purpose.” Renee J. v. Super. Ct., 26 Cal. 4th 735,

743 (2001). “When the language is clear and there is no

uncertainty as to the legislative intent, we look no further and

simply enforce the statute according to its terms.” Id.

Although the Supreme Court of California has not

addressed what constitutes a protected disclosure under

section 1102.5(b), we conclude that the district court

misconstrued this provision. The court concluded that

Emerson, as a private citizen in the employ of a private

environmental compliance firm, lacked the power to correct

the Army Reserve’s alleged noncompliance and therefore

disclosing these matters to him was “irrelevant under

[section] 1102.5(b).” In doing so, the court interpreted

section 1102.5(b) to mean that a protected disclosure must

be made to “a person with authority over the employee” who

also has the authority to “investigate, discover, or correct”

the violation.

12 KILLGORE V. SPECPRO PRO. SERV. LLC

However, California courts apply the “last antecedent

rule” when interpreting statutes. See White v. Cnty. of

Sacramento, 31 Cal. 3d 676, 680 (1982) (“A longstanding

rule of statutory construction—the ‘last antecedent rule’—

provides that ‘qualifying words, phrases and clauses are to

be applied to the words or phrases immediately preceding

and are not to be construed as extending to or including

others more remote.’” (quoting Bd. of Port Cmm’rs of City

of Oakland v. Williams, 9 Cal. 2d 381, 389 (1937))).

Applying that statutory canon here, the clause “who has the

authority to investigate, discover, or correct the violation or

noncompliance” modifies only the immediately preceding

phrase—“another employee.” Accordingly, Killgore’s

disclosures to Emerson—as a “person with authority over

the employee”—provided an independent ground for

asserting a whistleblower retaliation claim under section

1102.5(b).

Several persuasive California sources support this

reading of the statute. California Civil Jury Instruction 4603,

the model instruction that describes the elements of a

whistleblower retaliation claim under section 1102.5(b),

draws a distinction between disclosures to a “person with

authority” over the plaintiff and disclosures to “an employee

with authority to investigate, discover or correct” the

__________________

Even if the district court were right that the clause “who has the

authority to investigate, discover, or correct” modifies the entire

sentence, “[s]uch use of the word ‘or’ in a statute indicates an intention

to use it disjunctively so as to designate alternative or separate

categories.” White, 31 Cal. 3d at 680. In focusing solely on Emerson’s

ability to “correct” a potential violation of law, the court erred by

ignoring evidence of Emerson’s authority as a manager to “investigate”

or “discover” alleged noncompliance of law by the client or his own

company.

KILLGORE V. SPECPRO PRO. SERV. LLC 13

violation of law. The jury instruction provides in relevant

part:

[That [[name of plaintiff] disclosed/[name of

defendant] believed that [name of plaintiff]

[had disclosed/might disclose]] to a

[government agency/law enforcement

agency/person with authority over [name of

plaintiff]/ [or] an employee with authority to

investigate, discover, or correct legal

[violations/noncompliance]] that [specify

information disclosed];]

Judicial Council of California Civil Jury Instruction 4603

(2021 ed.). See Cal. R. Ct. 2.1050(a) (“California jury

instructions approved by the Judicial Council are the official

instructions for use in the state of California.”). In addition,

a leading commentator on California law explains that an

employer may not prohibit an employee from disclosing

information about a potential violation of law “to a person

with authority over the employee, or to another employee

who has authority to investigate, discover, or correct a

violation or noncompliance[.]” 3 B.E. Witkin, Summary of

California Law, Agency & Employment § 373 (11th ed.

2022) (emphasis added). Other California treatises are in

accord. See 1 Ming W. Chin et al., Cal. Practice Guide:

Employment Litigation ¶ 5:1747 (The Rutter Group 2022).

The California Supreme Court’s description of section

1102.5(b) in Lawson is also illuminating. The court

explained that section 1102.5(b) protects employees who

share “information the employee ‘has reasonable cause to

believe . . . discloses a violation of state or federal statute’ or

of ‘a local, state, or federal rule or regulation’ with a

government agency, with a person with authority over the

employee, or with another employee who has authority to

14 KILLGORE V. SPECPRO PRO. SERV. LLC

investigate or correct the violation.” Lawson, 12 Cal. 5th at

709 (emphasis added) (ellipsis in original). While the

Lawson court was addressing a different question about the

proper framework for evaluating section 1102.5 claims, id.

at 712, the distinction it draws between disclosures to

government agencies, persons with authority over the

whistleblower, or other employees with authority to

investigate or correct the violation, lends further support to

a reading of the statute that makes these avenues of

disclosure independent of one another.

Finally, such a construction is consistent with the broad

remedial purpose of the California Whistleblower Protection

Act. Section 1102.5 “reflects the broad public policy interest

in encouraging workplace whistle-blowers to report

unlawful acts without fearing retaliation.” Green v. Ralee

Eng’g Co., 19 Cal. 4th 66, 77 (1998). When first enacted in

1984, the whistleblower statute provided protection only for

employees who reported suspected violations of law to

outside government or law enforcement agencies. Id. at 76-

77. In 2014, the California Legislature amended section

1102.5(b) to protect employees from retaliation against

disclosure to “a person with authority over the employee or

another employee who has the authority to investigate,

discover, or correct the violation” as well as retaliation “for

providing information to, or testifying before, any public

body conducting an investigation, hearing or inquiry.” 2013

Cal. Stats., ch. 577, § 5.5 (S.B. 666); ch. 732, § 6.5 (Assemb.

B. 263); ch. 781, § 4.1 (S.B. 496). As amended, section

1102.5(b) further clarified that employee disclosures were

protected “regardless of whether disclosing the information

is part of the employee’s job duties.” Id. Other amendments

were made concurrently to the California Business and

Professions Code, Labor Code, and Government Code. Id.

Senate Bill 496 was intended to “clarif[y] rights and

procedures under the California Whistleblower Protection

KILLGORE V. SPECPRO PRO. SERV. LLC 15

Act and related laws, codifying case law regarding court

review and more explicitly setting forth administrative and

judicial processes, and updating related whistleblower

protections against retaliation.” Cal. Assemb. Comm. on

Judiciary, Analysis of S.B. No. 496 as amended June 11,

2013 (2013-2014 Reg. Sess., June 25, 2013), p. 1.

Given the context of the 2014 statutory amendments and

its expansion of protections and remedies for whistleblowers

across several code provisions, the district court’s

constricted reading of section 1102.5(b) cannot stand.

Providing independent avenues for employees to disclose

potential violations of law serves the “broad public policy

interest in encouraging workplace whistle-blowers to report

unlawful acts without fearing retaliation.” Green, 19 Cal.

4th at 77. A person “with authority” over the whistleblower

is in a managerial position with the ability to act on that

information. There may however be other employees within

an organization, such as an ombudsperson, human resources

personnel, or a complaint hotline staff, who do not supervise

the whistleblower yet may possess “authority to investigate,

discover, or correct the violation.” See, e.g., Lawson, 12 Cal.

5th at 708 (noting the plaintiff “filed two anonymous

complaints with [the defendant’s] central ethics hotline”).

To combine these two channels of protected disclosure is to

artificially circumscribe meaningful ways that potential

wrongdoing can be elevated and addressed.

For the foregoing reasons, we predict that the California

Supreme Court would hold that section 1102.5(b) prohibits

employers from retaliating against employees who disclose

potential wrongdoing to any one of several enumerated

avenues: government or law enforcement agencies, a person

with authority over the employee, other employees with

authority to investigate, discover, or correct the violation or

noncompliance, or any public body conducting an

16 KILLGORE V. SPECPRO PRO. SERV. LLC

investigation, hearing, or inquiry. Cal. Lab. Code §

1102.5(b). An employer may not retaliate against an

employee when the employee “has reasonable cause to

believe that the information discloses a violation of state or

federal statute” or of “a local, state, or federal rule or

regulation, regardless of whether disclosing the information

is part of the employee’s job duties.” Id.; see Lawson, 12

Cal. 5th at 709. Accordingly, we proceed on the

understanding that under California law, an employee

disclosing information he or she reasonably believes to be a

violation of law to a “person with authority over the

employee” is a protected disclosure under section 1102.5(b).

As the district court found, Emerson was a person “with

authority over [Killgore]” as his supervisor at SpecPro.

Indeed, Emerson exercised that authority by terminating

Killgore’s employment. Killgore testified that he discussed

the legality of the Conroe EA with Emerson. He stated that

the SpecPro team did not have sufficient information about

the prior helicopter operations to complete the

environmental assessment accurately. He expressed concern

that the team was not permitted to request environmental

reports detailing the history of the Conroe parcels or to visit

the Conroe site to observe its actual conditions. He told

Emerson that the Army Reserve’s instruction not to consider

or report on the prior operations in the Conroe EA or even

discuss these activities in email correspondence with the

Army Reserve constituted “multiple violations” of NEPA.

After these disclosures, Killgore was fired from SpecPro.

Because the district court wrongly concluded that

disclosures to Emerson were not protected under the

whistleblower statute, it did not consider this evidence in

ruling on SpecPro’s motion for summary judgment.

Viewing such evidence in the light most favorable to the

nonmoving party, we conclude that the evidence creates a

KILLGORE V. SPECPRO PRO. SERV. LLC 17

genuine dispute of material fact as to whether SpecPro

retaliated against Killgore for engaging in protected

whistleblower activity.

The district court also disregarded Killgore’s disclosures

to Chief Caballero for two reasons: disclosing potential

violations to Chief Caballero was not a protected activity

because it was a part of his “normal duties” of his

employment, and Killgore’s disclosures were unprotected

because Chief Caballero was assertedly a “wrongdoer” in the

alleged noncompliance with NEPA. Both determinations

rest on a misapplication of California law.

As an initial matter, the district court presumed, without

explaining why, that Chief Caballero was Killgore’s

supervisor with authority over him. The record does not

support that supposition. Chief Caballero was an employee

of the 63rd Command of the Army Reserve and was

SpecPro’s client. There is no evidence that Chief Caballero

had the right to hire, fire, or otherwise direct Killgore’s

conditions of employment at SpecPro, and she affirmatively

disclaimed any such authority. Chief Caballero was,

however, an employee of a “government agency,” the U.S.

Army Reserve. Killgore’s disclosures to her are properly

understood as a disclosure to a “government agency” under

the plain language of the statute. Cal. Lab. Code §

1102.5(b).

__________________

We address the district court’s determination that Killgore did not have

reasonable cause to believe that federal law was violated below.

18 KILLGORE V. SPECPRO PRO. SERV. LLC

The district court concluded that Killgore’s discussions

with Chief Caballero of potential violations of law

were not

entitled to whistleblower protection because reporting

NEPA violations were part of his “normal duties” as her

supervisee. As discussed above, however, section 1102.5(b)

was amended in 2014 to provide that a whistleblower’s

disclosures are protected “regardless of whether disclosing

the information is part of the employee’s job duties.” Cal.

Lab. Code § 1102.5(b). Even if the district court were

correct that Killgore’s reports to Chief Caballero were a

normal function of his employment, his disclosures were

clearly protected under state law at the time they were made.

The district court, relying on Mize-Kurzman v. Marin

Community College District, 136 Cal. Rptr. 3d 259 (Ct. App.

2012), also determined that Killgore’s communications with

Chief Caballero were unprotected because the information

was already known to her. Id. at 281-82. Mize-Kurzman

held that an “employee’s report to the employee’s supervisor

about the supervisor’s own wrongdoing is not a ‘disclosure’

. . . because the employer already knows about his or her

wrongdoing.” Id. at 282 (emphasis in original). Mize-

Kurzman’s determination that disclosures to a wrongdoer do

not qualify for protection was based on a Federal Circuit

Court opinion interpreting the federal Whistleblower

__________________

Killgore testified that he and Russ specifically told Chief Caballero that

preparing the environmental assessment without reference to the prior

helicopter operations was illegal under NEPA. Chief Caballero testified

that she did not recall Killgore bringing up the legality of excluding the

prior operations. Drawing all inferences in favor of the nonmoving

party, we assume that Killgore specifically disclosed that he believed

preparing the Conroe EA without reference to past activities would

violate NEPA.

KILLGORE V. SPECPRO PRO. SERV. LLC 19

Protection Act. Id. at 279-80, 281-82 (citing Huffman v. Off.

of Pers. Mgmt., 263 F.3d 1341, 1350 (Fed. Cir. 2001)).

The district court’s reliance on Mize-Kurzman was inapt

because, as discussed above, there is no evidence that Chief

Caballero was Killgore’s “employer” or “supervisor.”

Nothing in Mize-Kurzman suggests that its rule limiting

protected disclosures to supervisors not involved in the

alleged wrongdoing should be extended to individuals who

do not supervise or employ the whistleblower. See id. at

281-82. Even if such a rule can be gleaned from Mize-

Kurzman, several other state appellate courts have held that

disclosures to wrongdoers are protected under section

1102.5(b).

In Jaramillo v. County of Orange, 133 Cal. Rptr. 3d 751

(Ct. App. 2011), the appellate court found that Jaramillo’s

disclosure to a supervisor involved in the wrongdoing was

protected because it “fits within the literal definition of

whistleblowing under Labor Code section 1102.5.” Id. at

762. The court rejected the County’s reliance on Huffman,

stating that “California precedent is to the direct contrary.”

Id. at 762 (citing Gardenhire v. Hous. Auth., 101 Cal. Rptr.

2d 893 (Ct. App. 2000)); see also Hager v. Cnty. of L.A., 176

Cal. Rptr. 3d 268, 277 (Ct. App. 2014) (finding Huffman

inconsistent with California law and holding that “a report

of wrongdoing by a public employee to the very person who

is engaged in the wrongdoing is covered by [section

1102.5(b)]”), disapproved on other grounds in Lawson, 12

Cal. 5th at 711-12. Finally, Huffman has itself been

superseded by amendments to the federal Whistleblower

20 KILLGORE V. SPECPRO PRO. SERV. LLC

Protection Act which protect employee disclosures to a

supervisor believed to be involved in the wrongdoing.

We conclude that the district court misapplied California

law when it rejected evidence of Killgore’s disclosures to

Chief Caballero on the basis that reporting was part of his

normal job duties or because she was assertedly involved in

the wrongful conduct. Viewing the evidence in the light

most favorable to his claims, Killgore has raised genuine

issues of material fact as to whether he disclosed potential

violations of law to Chief Caballero and whether such

disclosures were a contributing factor in his termination in

violation of state law.

The final question we must address concerning the

section 1102.5(b) claim is whether Killgore “ha[d]

reasonable cause to believe that the information discloses a

violation of . . . federal statute” or “noncompliance with a . .

. federal rule or regulation.” Cal. Lab. Code § 1102.5(b).

Under the statute, the relevant inquiry is not whether the

conduct “actually violated” any specific statute or

regulation, but whether the plaintiff “reasonably believed

that there was a violation of a statute, rule, or regulation” at

the time it was reported. Nejadian v. Cnty. of L.A., 253 Cal.

Rptr. 3d 404, 418 (Ct. App. 2019) (emphasis in original)

__________________

See Whistleblower Protection Enhancement Act of 2012, Pub. L. No.

112-199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (2012) (codified as

amended at 5 U.S.C. § 2302(f)(1)) (“A disclosure shall not be excluded

from subsection (b)(8)”—forbidding retaliation against an employee

who discloses information about a suspected “violation of any law, rule

or regulation”—because “(A) the disclosure was made to a supervisor or

to a person who participated in an activity that the employee . . .

reasonably believed to be [a violation of law, rule, or regulation].”).

KILLGORE V. SPECPRO PRO. SERV. LLC 21

(contrasting the requirements of section 1102.5(b) and

1102.5(c) retaliation claims).

To determine whether Killgore presented triable

evidence sufficient to support a reasonable belief that NEPA

was being violated in the preparation of the Conroe EA, we

begin by summarizing the requirements of NEPA and its

implementing regulations.

NEPA is a procedural statute that requires a federal

agency like the Army Reserve “to assess the environmental

consequences of their actions before those actions are

undertaken.” Klamath-Siskiyou Wildlands Ctr. v. Bureau of

Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004). “NEPA

‘ensures that the agency . . . will have available, and will

carefully consider, detailed information concerning

significant environmental impacts; it also guarantees that the

relevant information will be made available to the larger

[public] audience.’” Blue Mountains Biodiversity Project v

Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (alterations

in original) (quoting Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 349 (1989)). NEPA is accompanied

by implementing regulations promulgated by the Council on

Environmental Quality (“CEQ”), 40 C.F.R. §§ 1501.1-

1508.28.

For “major Federal actions significantly affecting the

quality of the human environment,” the agency must prepare

an environmental impact statement (“EIS”). 42 U.S.C. §

4332(2)(C). “Where an agency is unsure whether an action

is likely to have ‘significant’ environmental effects, it may

prepare an EA: a ‘concise public document’ designed to

‘[b]riefly provide sufficient evidence and analysis for

determining whether to prepare an [EIS] . . . .” Klamath-

22 KILLGORE V. SPECPRO PRO. SERV. LLC

Siskiyou, 387 F.3d at 993 (first alteration in original)

(quoting former 40 C.F.R. § 1508.9); see also 40 C.F.R. §

1501.5(c)(1).

Under the CEQ regulations, the EA must “[b]riefly

discuss the purpose and need for the proposed action” and

alternatives and “the environmental impacts of the proposed

action and alternatives,” 40 C.F.R. § 1501.5(c)(2), and it

must consider the “[e]ffects or impacts” of a proposed

action, 40 C.F.R. § 1508.1(g). Pertinent to our analysis here,

the NEPA regulations require consideration of the

cumulative impacts of an action, defined as “effects on the

environment that result from the incremental effects of the

action when added to the effects of other past, present, and

reasonably foreseeable actions.” Id. § 1508.1(g)(3).

The district court concluded that Killgore could not have

reasonably believed that omission of the prior helicopter

operations from the Conroe EA was a violation of NEPA and

its regulations because the EA is a “forward looking”

document that “need only assess the potential impacts of the

proposed action.” The court rejected Killgore’s reliance on

Klamath-Siskiyou, holding that federal agencies “have

substantial discretion over whether to include past actions in

their EAs and what extent those past actions should be

discussed in a cumulative effects analysis.” The district

court misconstrued our holding in Klamath-Siskiyou.

As we previously explained, “[a] proper consideration of

the cumulative impacts of a project requires some quantified

or detailed information; . . . general statements about

possible effects and some risk do not constitute a hard look

absent a justification regarding why more definitive

information could not be provided.” Klamath-Siskiyou, 387

F.3d at 993 (internal quotation marks and citations omitted).

We emphasized that a cumulative impacts analysis “must be

KILLGORE V. SPECPRO PRO. SERV. LLC 23

more than perfunctory; it must provide a useful analysis of

the cumulative impacts of past, present, and future

projects.” Id. at 994 (emphasis added); see id. at 996

(reversing grant of summary judgment in NEPA action

challenging timber sales where agency’s EAs gave only

“generalized” and “conclusory” statements about

cumulative effects of proposed sales); see also 40 C.F.R. §

1508.1(g)(3) (a cumulative impacts analysis under NEPA

reviews the “effects on the environment that result from the

incremental effects of the action when added to the effects of

other past, present, and reasonably foreseeable actions.”

(emphasis added)).

The district court’s assertion that the EA is only a

“forward looking” document that need not consider prior

activity in evaluating the potential impacts of a proposed

action is contradicted by the CEQ regulations and our

precedent. While the district court is correct that federal

agencies have substantial discretion to define the scope of

NEPA review, an agency may not disregard its statutory

obligation to take a “hard look” at the environmental

consequences of a proposed action, including its cumulative

impacts, where appropriate. Blue Mountains, 161 F.3d at

1212, 1214-15.

As Killgore’s testimony and evidence identified, the

Conroe EA provided no analysis or discussion of the prior

helicopter activities. Killgore testified that he believed that

consideration of this prior activity was important for an

evaluation of the proposed action because prior helicopter

missions had been occurring for more than ten years, and yet

there was little to no documentation of their environmental

effects on the Conroe site. Killgore believed that there may

have been prior refueling missions, which required

consideration of potential oil spills, the introduction of

invasive species, soil erosion, and other environmental

24 KILLGORE V. SPECPRO PRO. SERV. LLC

impacts. Even if prior helicopter missions only involved

low-level hovering missions, the cumulative effect of these

prior activities, when combined with the proposed assault

helicopter landing zone operations, could have a significant

effect on the environment. See 40 C.F.R. § 1508.1(g)(3)

(“Cumulative effects can result from individually minor but

collectively significant actions taking place over a period of

time.”).

The district court erred in determining, as a matter of

law, that Killgore had no reasonable cause to believe that

they were violating NEPA by failing to consider and include

the prior helicopter operations in the Conroe EA. At a

minimum, this was a question of fact for the jury to decide.

See Terry v. Atl. Richfield Co., 140 Cal. Rptr. 510, 512 (Ct.

App. 1977) (“[T]he reasonableness of an act or omission is

a question of fact, that is, an issue which should be decided

by a jury and not on a summary judgment motion,” unless

“there is no room for a reasonable difference of opinion.”);

West v. State Farm Fire & Cas. Co., 868 F.2d 348, 350 (9th

Cir. 1989) (per curiam) (citing Terry, supra). As the record

demonstrates, both Burger and Russ also believed it was

important to reference the prior helicopter training missions

in the Conroe EA, and Russ shared the view that omitting

this information was “unethical and probably illegal”

because they were not being fully transparent with the

public. That other members of the SpecPro team may have

also believed they were violating federal law illustrates that

the reasonableness of Killgore’s disclosures of illegality was

a factual matter better left for the jury.

Two final matters bear some discussion. The district

court accepted SpecPro’s contention that Killgore alleged a

violation of NEPA because the team was required to

KILLGORE V. SPECPRO PRO. SERV. LLC 25

complete the Conroe EA in only three months. To the extent

Killgore is alleging that a rushed timeline is itself a violation

of NEPA, we agree with the district court that concern about

meeting a deadline is not a protected activity. However, we

view Killgore’s testimony about the three-month deadline

not in a vacuum, but in the broader context of his testimony

about the absence of documentation about the prior

helicopter activities, the complexity of the Conroe EA in

light of the prior operations, and the limitations imposed by

the Army Reserve in prohibiting the SpecPro team from

pulling environmental reports or traveling to the site to

observe its actual conditions. Viewing the evidence in the

light most favorable to Killgore’s claims, as we must, his

concern about the inability to meet the three-month deadline

reflected a broader concern that the team was being forced

to prepare a noncompliant and incomplete report that

unlawfully excluded the prior helicopter operations. The

reasonableness of his belief is a factual question for the jury

to determine.

At oral argument, SpecPro also asserted that Killgore

could not have reasonably believed there was a violation of

NEPA because such violation can only occur when the

environmental assessment is signed, and Killgore was fired

before the Conroe EA had been completed. This argument

is contradicted by the plain language of the statute and the

purpose for which whistleblower protections were enacted

in California. An employer may not retaliate against an

employee for disclosing wrongful conduct “or because the

employer believes that the employee disclosed or may

disclose information” about a violation of law. Cal. Lab.

Code § 1102.5(b) (emphasis added); see also Cal. Assemb.

Comm. on Judiciary, Analysis of S.B. No. 496 as amended

June 11, 2013 (2013-2014 Reg. Sess., June 25, 2013), p. 3.

(“[C]omplaints about alleged violations of local law are

covered, as well as internal complaints and perceived or

26 KILLGORE V. SPECPRO PRO. SERV. LLC

anticipatory retaliation.”). Section 1102.5(b) serves to

protect actual disclosures as well as retaliation for

anticipated whistleblowing activity. SpecPro’s reading of

the statute would allow an employer to fire the potential

whistleblower before completing the illegal act and thereby

escape liability. California law does not limit whistleblower

protections in such manner.

We conclude that Killgore’s disclosures to Emerson and

Chief Caballero were protected under section 1102.5(b), and

he raised genuine issues of material fact as to what illegal

conduct he disclosed, whether he had reasonable cause to

believe that federal law was being violated, and whether his

whistleblowing activity was a contributing factor in his

termination of employment. Accordingly, we reverse the

district court’s summary judgment order of the section

1102.5(b) retaliation claim. Because his claim of wrongful

termination in violation of public policy is derivative of his

retaliation claim, we reverse the grant of summary judgment

as to that claim as well.

IV.

Section 1102.5(c) prohibits “[a]n employer . . . [from]

retaliat[ing] against an employee for refusing to participate

in an activity that would result in a violation of state or

federal statute, or a violation of or noncompliance with a

local, state, or federal rule or regulation.” “[T]o prevail on a

claim under this provision, the plaintiff must identify both

the specific activity and the specific statute, rule or

regulation at issue; the court must then determine the legal

question whether the identified activity would result in a

violation or noncompliance with the identified statute, rule,

or regulation, and, if so, the jury must determine the factual

issue whether the plaintiff was retaliated against for refusing

KILLGORE V. SPECPRO PRO. SERV. LLC 27

to participate in the identified activity.” Nejadian, 253 Cal.

Rptr. 3d at 408.

The district court granted summary judgment after

finding that Killgore presented no evidence he had refused

to engage in illegal activity. We agree. While Killgore

raised extensive concerns about the report, no evidence has

been adduced that he refused to comply with Chief

Caballero’s directives concerning the Conroe EA or

otherwise refused to complete the EA. Rather, he testified

that he did not get a chance to refuse to work on the project

before he was fired, and he continued working on the

document until his final day at SpecPro. We affirm the

district court’s order granting summary judgment on this

claim.

Because Killgore has presented genuine disputes of

material fact under section 1102.5(b) and wrongful

termination in violation of public policy, we reverse the

district court’s order granting summary judgment of those

claims and remand for further proceedings consistent with

this opinion. We affirm the grant of summary judgment as

to the section 1102.5(c) claim.

AFFIRMED in part, REVERSED in part, and

REMANDED. Defendant-Appellee must bear all costs.