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Court reinstates maintenance supervisor’s retaliation claim


A federal appeals court has reinstated a retaliation claim filed by a maintenance firm supervisor who claimed he was terminated because he had complained about his firm’s fraudulent activity.

Esteban Garcia was hired as an operations manager for Austin, Texas-based Professional Contract Services Inc., a nonprofit company that provides custodial and grounds maintenance services for government-owned properties by employing disabled individuals, in 2003, according to Wednesday’s ruling by the 5th U.S. Circuit Court of Appeals in New Orleans in Esteban Garcia v. Professional Contract Services Inc.

In April 2013, Mr. Garcia informed a nonprofit agency that helps the government administer contracts to disabled individuals that his company was billing the government for cleaning the parking lots at a particular site when the work was not actually being performed, according to the ruling.

He subsequently made other charges as well, including that the company was certifying employees as disabled based on doctors’ notes in Spanish when they were not.

The company terminated Mr. Garcia in June 2013, citing his oversight at two job sites.

Mr. Garcia filed suit in U.S. District Court in San Antonio, Texas, charging wrongful retaliation and termination in violation of the False Claims Act. The District Court granted the company’s motion for summary judgment dismissing the case.

The ruling was overturned by a unanimous three-judge appeals court panel. Mr. Garcia does not dispute the company had a “legitimate nondiscriminatory reason” for his discharge but argued the explanation was a pretext, said the panel’s ruling. “We hold that there is a genuine issue of material fact on this point,” it said.

The District Court had held Mr. Garcia’s situation could not be compared to a fellow employee, who was not terminated for similar conduct, because they worked in different divisions of the company, said the ruling. “But our case law has never imposed this requirement,” it said.

“The undisputed facts are that both Garcia and (the other employee) were both hired as operations managers, and they both had the same duties in overseeing contracts. They even managed the same project…They also both reported to the same people, and they had similar histories of work violations.

“Critically, moreover, (the other employee) engaged in conduct similar to the conduct for which Garcia was terminated,” the ruling said.

But while Mr. Garcia was fired for his mistakes on a particular job, the company gave this other employee “multiple opportunities to improve his performance without terminating him.

“A reasonable jury, therefore, could conclude that the firm’s disparate treatment” of the other worker and Mr. Garcia in combination with other evidence, “supported an inference of pretext,” said the ruling, in reversing the lower court and remanding the case for further proceedings.

Mr. Garcia’s attorney, Jeffrey A. Feasby, a partner with Perez Vaughn & Feasby Inc. in San Diego, said in a statement, “We were grateful that the 5th Circuit took the time to carefully review the evidence and come to the proper conclusion.

“Our client is looking forward to presenting his claim to a jury for resolution. Throughout this litigation, PCSI has gone out of its way to malign Mr. Garcia, who’s a disabled veteran and a long-term employee at PCSI with a history of promotion, raises and maximum bonuses based on his work performance.

“The 5th Circuit opinion goes a long way to affirm what Mr. Garcia has said all along, and it ensures that Mr. Garcia receives his day in court.  Our client is looking forward to presenting his claims to a jury for resolution and is grateful for a system that protects the rights of those who speak out when they believe out someone is defrauding the government.”

Professional Contract’s attorney could not be reached for comment.

Last week, a federal appeals court vacated an earlier decision that dismissed a retaliation lawsuit filed by an injured worker against his employer on the basis that federal immigration law prohibited the man from working in the United States.





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