Full opinion text
ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT ON PLAINTIFFS’ ORIGINAL COMPLAINT COUNTS I-IV KAY, Senior District Judge. PROCEDURAL BACKGROUND On October 1, 2004, James Lockyer (“Plaintiff Lockyer”) filed a qui tam Complaint in this Court under seal on behalf of the United States alleging that Defendants Hawaii Pacific Health, Kauai Medical Clinic, Wilcox Memorial Hospital, Wilcox Health Systems, and Lee A. Evslin submitted or caused to be submitted false or fraudulent claims for payments from federal and state assistance programs. In addition, Plaintiff Lockyer alleged that Defendants improperly retaliated against him for opposing and reporting such improper practices. Plaintiff Lockyer’s original Complaint alleges the following claims for relief: Count I: Violation of federal and state False Claims Acts, 31 U.S.C. § 3729, et seq. and Haw.Rev.Stat. § 661-2. Count II: Common law claim for retaliation in violation of a State of Hawaii public policy to prohibit the submission of false or fraudulent claims for payment to government assistance programs. Count III: Violation of federal and state Whistleblower Protection Laws, 31 U.S.C. § 3730(h) and Haw.Rev.Stat. § 378-61, et seq. Count IV: Claim for punitive damages. The United States Attorney for the District of Hawaii intervened in the case on behalf of the United States on January 27, 2006. The case was unsealed the same day. The State of Hawaii has not intervened in the case. Defendants Hawaii Pacific Health, Kauai Medical Clinic, Wilcox Memorial Hospital, and Wilcox Health System (“HPH Entities”) answered the Complaint on June 20, 2006. Defendant Evslin filed his Answer on July 6, 2006. On December 22, 2006, Defendants HPH Entities filed a Motion for Summary Judgment on Plaintiff Lockyer’s Complaint (“HPH Motion”) and a Concise Statement of Facts (“HPH CSF”). The same day, Defendant Lee Evslin filed a Motion for Summary Judgment on Plaintiff Lockyer’s Second, Third, and Fourth Claims for Relief (“Evslin Motion”) and a Concise Statements of Facts (“Evslin CSF”). On December 27, 2006, Defendant Evslin filed a joinder in the HPH Entities’ Motion for Summary Judgment. On December 29, 2006, the HPH Entities filed a joinder in Evslin’s Motion. On March 9, 2007, Plaintiff Loekyer filed an Opposition to Defendants HPH Entities’ Motion for Summary Judgment (“Loekyer Opp. to HPH Motion”) and a Concise Statement of Facts (“Loekyer CSF re. HPH Motion”). Plaintiff Lock-yer also filed an Opposition to Defendant Evslin’s Motion for Summary Judgment (“Loekyer Opp. to Evslin Motion”) and a Concise Statement of Facts (“Loekyer CSF re. Evslin Motion”). The United States joined in both of these Oppositions filed by Plaintiff Loekyer. The same day, the United States filed an Opposition to Defendants HPH Entities’ Motion for Summary Judgment (“USA Opp. to HPH Motion”), which was joined by Plaintiff Loekyer. On March 16, 2007, Defendants HPH Entities filed a Reply to Plaintiff Lockyer’s Opposition to the HPH Motion (“HPH Reply to Loekyer Opp.”) and a Reply to Plaintiff U.S.A.’s Opposition to the HPH Motion (“HPH Reply to U.S.A. Opp.”), both of which were joined by Defendant Evslin. The same day, Defendant Evslin also filed a Reply to Plaintiff Lockyer’s Opposition to Evslin’s Motion (“Evslin Reply to Lockyer’s Opp.”), which was joined by Defendants HPH Entities. On January 24, 2007, the Parties agreed to mediation before Mediator Clyde Mat-sui. However, as of the March 27, 2007 hearing, the parties have not apprised this Court of any effect of the mediation on the instant Motions. On February 2, 2007, the Parties stipulated to amend the Complaint filed on October 1, 2004. The First Amended Complaint adds two additional claims that Defendants violated the federal False Claims Act, Counts V and VI, respectively. On February 20, 2007, Defendants HPH Entities filed a Motion to Dismiss the Fifth and Sixth Claims of the First Amended Complaint. Defendant Evslin joined the Motion to Dismiss on February 20, 2007. The Motion to Dismiss the Fifth and Sixth Claims of the First Amended Complaint is not before the Court at the instant hearing, which is limited to Defendants’ Motions for Summary Judgment of the original complaint. On March 19, 2007, Defendant Evslin filed a Motion to Strike Hearsay and Other Improper Testimony from Plaintiff Lock-yer’s Opposition to Evslin’s Motion, which was joined by Defendants HPH Entities. At the same time, Defendant Evslin filed a Motion to Shorten Time to Hear the Motion to Strike. On March 21, 2007, the Court granted Defendant Evslin’s Motion to Shorten Time and gave the Plaintiffs until noon on March 23, 2007 to file an Opposition to the Motion to Strike. A hearing on Defendants HPH Entities’ Motion for Summary Judgment (of the original complaint), Defendant Evslin’s Motion for Summary Judgment on Plaintiffs Second, Third, and Fourth Claims, and Defendant Evslin’s Motion to Strike was held on March 27, 2007 at 10:30 a.m. FACTUAL BACKGROUND Kauai Medical Clinic (“KMC”) is an outpatient clinic adjacent to Wilcox Memorial Hospital in Lihue, Kauai. See HPH CSF at ¶ 1, Joseph Decl. at ¶ 2. KMC employed Plaintiff Lockyer as a physician specializing in internal medicine (“internist”) from December 1, 1999 until he resigned on June 30, 2004. See Evslin Exhs. 9, 8; Complaint ¶ 20. In December of 2001, KMC and Hawaii Pacific Health (HPH) merged. See Lockyer Decl. ¶ 6. HPH is the parent entity to KMC, Wilcox Memorial Hospital, and Wilcox Health System. See Corporate Disclosure Statements filed by Defendants on June 7, 2006. Defendant Evslin was the President and CEO of Kauai Medical Clinic from 1996 through September of 2005 and CEO of Wilcox Memorial Hospital from January of 2003 through September 2005. See Evslin CSF, Evslin Decl ¶ 2, Knudsen Decl. ¶ 6. Due to the size of KMC, over the past several years it has never employed more than one oncologist at a time. See HPH Exh. 1, Joseph Decl. ¶ 3. Chemotherapy is administered in a large room called the “chemo suite” that is located within the internal medicine suite on the second floor of the Clinic, where the offices of all the internists are located. Id. at ¶¶ 3, 7. The chemo suite was usually open from 7:00 a.m. to 4:30 p.m. See Lockyer’s CSF ¶ 6-a. The internal medicine physicians usually started seeing patients at 8:30 or 9:00 a.m. The Internal Medicine Department was closed for lunch from noon to 2:00 p.m. daily. Id. at ¶ 6-c. Defendants HPH Entities allege they abided by the following procedure regarding chemotherapy administration: after an initial consultation, the oncologist provided a written order for each chemotherapy patient setting forth required blood tests, acceptable parameters for blood test results, and types and amounts of chemotherapy to be provided. See HPH CSF ¶ 3. Nurses in the chemo suite, whom Defendants allege were duly qualified, would review the blood test results and administer chemotherapy if the blood tests were normal and alert a physician if the tests were abnormal. Id. at ¶¶ 4-7. Defendants state that an oncologist was available 95-98% of the time chemotherapy was being administered, but if he or she was unavailable, another physician from the clinic’s internal medicine department would be assigned to cover for the oncologist. See HPH Exh. “25,” Dannog Decl. at ¶ 8; HPH CSF at ¶¶ 8-10. The oncology nurses were aware of which physician was covering in advance and would leave the charts of oncology patients for the covering physician to sign. See HPH CSF at ¶ 12. Defendants allege that there was always either an oncologist or covering physician available to respond to emergencies, which were unusual. Id. If blood results were within prescribed parameters and no emergency occurred, the supervising physician would not likely see the patient receiving chemotherapy. Id. at ¶ 15. If no physician was available, the nurses would not administer chemotherapy. Id. at ¶ 16. Defendants also allege that KMC’s medical records demonstrate that Dr. Lockyer was the supervising physician for the chemo suite on certain occasions and that he received compensation for covering the chemo suite. Id. at ¶¶ 22-23. Regarding administration and billing for chemotherapy, Plaintiff Lockyer alleges that KMC submitted 359 claims to Medicare for administration of chemotherapy by oncology nurses using his provider number. See Lockyer CSF re. Evslin ¶¶ 8-9. Lockyer alleges he never accepted an assignment to cover the chemo suite. Id. at ¶ 11. He further alleges that he and other internists were unaware of or did not understand Evslin’s request that they sign off on chemotherapy notes to mean that they were assigned to supervise the administration of chemotherapy. See Lock-yer’s CSF re. HPH at ¶6-11. Plaintiff argues there was no chemo suite schedule assigning physicians to supervise nor did anyone notify the physicians that they were assigned to supervise the chemotherapy on a particular day. Id. at ¶¶ 6-e, 6-f. Lockyer alleges that on three occasions he left the clinic, but KMC billed Medicare as though he was the supervising physician for the chemotherapy patients. See Lock-yer’s CSF re. Evslin at ¶ 15. Defendants counter Lockyer’s allegations with declarations by other internists and an oncologist who worked at KMC until 2002 who attest to a coverage policy by internists for the chemo suite when the oncologist was away. See Hayward Decl. at ¶¶5-7; Pixler Decl. at ¶¶ 6, 8-9. Dr. Pixler states she knew that when she signed the chemotherapy patients’ charts she was attesting to her supervisory duties and knew that her provider number would be used in billing the services that she supervised. Id. at ¶ 12. During the course of his employment, Plaintiff Lockyer and Defendants had a prolonged dispute over his compensation. Defendant Evslin argues that Lockyer’s salary was calculated using KMC’s compensation formula, based on several factors including the physician’s productivity, and was adjusted periodically. See Evslin CSF at ¶¶ 5, 11. Lockyer claims that Evs-lin dominated the decisions at KMC. See Lockyer CSF at ¶ 3. Salary review and adjustments were conducted by KMC’s Salary & Finance and Executive Committees. See Evslin CSF at ¶ 7. Beginning in 2001, the Medical Executive Staff Committee advised the KMC Board regarding physician compensation issues, and the CEO was an ex officio non-voting member of the Board. Id. at ¶ 9. The Committees voted to reduce Lockyer’s salary from $125,000 to $120,00 in June 2001 and to $115,000 in January 2002. Id. at ¶ 14, Evslin Motion p. 8. Evslin argues that Lockyer’s projected salary would have been much lower, but that he advocated on Lockyer’s behalf based on Lockyer’s commitments to improve. See Evslin CSF at ¶¶ 15, 17. Defendants argue that the salary reductions were due to Lockyer’s failure to meet his target productivity numbers, and that other physicians’ salaries were periodically reduced based on the same compensation formula. Id. at ¶¶ 16-17. In March of 2002, the Committees gave Lockyer ninety days’ notice of their intent to terminate his employment due to underperformance and complaints. Id. at ¶ 19. Lockyer appealed the notice and on May 1, 2002, the Committee rescinded the notice and issued a revised work improvement plan to Lockyer. Id. at ¶¶ 22-23. The parties disagree as to when Plaintiff Lockyer made his first request to see data regarding his billings. Plaintiff states in his declaration that he suggested a financial audit as early as August 2000 when Evslin denied him access to review his receipts data and that he proposed to his colleagues at a Department meeting in December, 2001 that an audit of the KMC books should take place. See Corrected Decl. of Lockyer ¶¶ 39, 40, 42, 43. Defendants counter that Plaintiff Lock-yer’s declaration contradicts his deposition testimony in which he stated that he never specifically asked Evslin for a financial audit in his meetings in 2000 and that he first asked to see billing documentation in December of 2001. See Evslin Reply re. Lockyer Opp. p. 9-10, n. 6; Lockyer Depo, Exh. “59” at pp. 92-93, 95-96. Defendants argue that Lock-yer first requested his compensation documentation in May of 2002 by letter from Lockyer’s attorneys. See Evslin CSF Exh. “25.” Lockyer alleges that he had reason to suspect Evslin was engaging in fraud based on the denial of his initial requests for his financial data. See Lockyer CSF re. HPH at ¶ 8-c. Lockyer points to the timing that he began asking for billing records when KMC and HPH were negotiating their merger, and that Evslin received a substantial increase in salary after KMC and HPH merged in December of 2001. See Lockyer CSF at ¶¶ 16-17. On July 8, 2002, Lockyer demanded arbitration over the failure of KMC to produce the requested compensation documentation to verify the grounds for his salary reduction. See Evslin CSF Exh. “28.” KMC produced the requested compensation records pursuant to arbitration. See Evslin CSF Exh. “46.” The Committees reduced Lockyer’s salary under the compensation formula to $90,000 in November, 2002 and to $83,132 in February, 2003. See Evslin CSF at ¶¶ 29-30, Evslin Motion p. 11. Defendants claim that Lockyer received patient complaints, failed to reach his salary targets, and KMC had to reassign Lockyer’s long-term care patients during 2003 and 2004. See Evslin CSF at ¶ 32. Lockyer argues that the complaints were unfounded and allegations about poor charting practice, wait time, and unresponsiveness to pages were unfair. See Lockyer CSF ¶¶ 19-23. Lockyer resigned on June 30, 2004. See Evslin CSF at ¶ 8. Lockyer filed his federal qui tam Complaint under seal on October 1, 2004, in which he alleged, inter alia, that upon his analysis of billing documents obtained during arbitration, he discovered reimbursements from Medieare/Medicaid for administration of chemotherapy he never ordered or provided. See Complaint at ¶¶ 22, 23. Lockyer abandoned arbitration in January of 2005. See Evslin CSF at ¶ 34. Defendants argue that they did not know of Lockyer’s belief that they had submitted false claims until they learned of this lawsuit in 2006. Id. at ¶ 36. STANDARD Motion for Summary Judgment The purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is therefore appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “A fact is ‘material’ when, under the governing substantive law, it could affect the outcome of the case. A ‘genuine issue’ of material fact arises if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Thrifty Oil Co. v. Bank of America National Trust & Savings Ass’n, 322 F.3d 1039, 1046 (9th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal citation omitted). Conversely, where the evidence could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). The moving party has the burden of persuading the court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Miller v. Glenn Miller Productions, 454 F.3d 975, 987 (9th Cir.2006). The moving party may do so with affirmative evidence or by “ ‘showing’- — -that is pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a material issue of fact precludes summary judgment. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348; California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987). The nonmoving party must instead set forth “significant probative evidence” in support of its position. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987). Summary judgment will thus be granted against a party who fails to demonstrate facts sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at trial. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548. When evaluating a motion for summary judgment, the court must construe all evidence and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. See T.W. Electrical Service, 809 F.2d at 630-31. Accordingly, if “reasonable minds could differ as to the import of the evidence,” summary judgment will be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). DISCUSSION I. Count I: Federal and State False Claims Acts The federal False Claims Act (FCA) imposes liability upon any person who: (1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government ... a false or fraudulent claim for payment or approval (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the government; (3) conspires to defraud the Government by getting a false or fraudulent claim paid. 31 U.S.C. § 3729(a)(1)-(3)(2005); See United States ex rel. Hochman v. Nackman, et al., 145 F.3d 1069, 1073 (9th Cir.1998). The element of scienter is essential to establishing liability under the FCA. The FCA defines “knowing” as having actual knowledge of the information or acting in deliberate indifference or reckless disregard to the truth or falsity of the information. 31 U.S.C. § 3729(b)(1)-(3). Mere negligence or honest mistakes, however, are not covered by the FCA. Hochman, 145 F.3d at 1073. The Hawaii False Claims Act was enacted in 2000. Haw.Rev.Stat. §§ 661-21 et seq. The language of Haw.Rev.Stat. § 661-21 is almost identical to the federal FCA’s language in Section 3729. The Hawaii’s False Claims Act extends liability in situations nearly identical to the federal FCA. See United States ex rel. Rost v. Pfizer, Inc., 446 F.Supp.2d 6, 12 n. 13 (D.Mass.2006). In addition, the Hawaii FCA extends liability to someone who “is a beneficiary of an inadvertent submission of a false claim to the State, who subsequently discovers the falsity of the claim, and fails to disclose the claim to the State within a reasonable time after discovery of the false claim.” Haw.Rev.Stat. § 661-21(a)(8). Thus, the analysis for liability under the federal FCA will apply in a similar fashion to the state FCA. There may be additional liability, however, under the Hawaii FCA in circumstances not covered by the federal FCA. A. Medicare “Incident to” Rules The Medicare Program is administered by the Department of Health and Human Services through the Centers for Medicare and Medicaid Services (CMS). Medicare Part A covers hospital insurance for the elderly and disabled. Medicare Part B covers doctors’ services and outpatient care. CMS reimburses Medicare claims through private insurance carriers who administer and pay claims as fiscal intermediaries. The carrier in this case is Noridi-an Administrative Services. Both parties agree that KMC’s billing practices for the administration of chemotherapy are governed by the “incident to” rules under Medicare Part B because KMC operates as an outpatient clinic. The “incident to” rules read, in relevant part, “Medicare Part B pays for services and supplies incident to the service of a physician (or other practitioner).” 42 C.F.R. § 410.26(b). The “incident to” rules further provide, “Services and supplies must be furnished under the direct supervision of the physician (or other practitioner). The physician (or other practi’tioner) directly supervising the auxiliary personnel need not be the same physician (or other practitioner) upon whose professional service the incident to service is based.” 42 C.F.R. § 410.26(b)(5). “Direct supervision” is defined by reference to 42 C.F.R. § 410.32(b)(3)(ii), which states, “Direct supervision in the office setting means the physician must be present in the office suite and immediately available to furnish assistance and direction throughout the performance of the procedure. It does not mean that the physician must be present in the room when the procedure is performed.” In the comments accompanying the 2001 final rule, CMS addressed the requests of commenters to clarify whose provider number should be used when billing for incident to services and supplies: the physician who orders the services or the physician who supervises the personnel who perform the services. In response, CMS stated: When a claim is submitted to Medicare under the billing number of a physician (or other practitioner) for an incident to service, the physician is stating that he or she either performed the service or directly supervised the auxiliary personnel performing the service. Accordingly, the Medicare billing number of the ordering physician (or other practitioner) should not be used if that person did not directly supervise the auxiliary personnel. We added language to the supervision requirement set forth in § 410.26(b)(5) to reflect this clarification. 66 Fed.Reg. 55267 (Nov. 1, 2001). Both parties seem to agree that under the incident to rules, services administered by a non-physician are only eligible for Medicare payment if there is a supervising physician in the same office suite where the services are furnished, and who is immediately available to provide assistance. The supervising physician need not be the same physician who ordered the incident to services or supplies. The supervising physician’s provider number, rather than the ordering physician’s, should be used when billing Medicare for incident to services. The parties disagree, however, about whether the applicable rules require the supervising physician to be aware that she is supervising the services that are billed using her number. According to Plaintiff Lockyer’s expert, Terry Coleman, the Medicare claim form must be signed by the supervising physician unless her signature is on file. As Defendants’ expert, Todd Rodriguez, explains, CMS allows a physician to sign a one-time certification letter and authorize the entity to enter the physician’s signature on the claims. See HPH Exh. “23,” Rodriguez Report at ¶ G. Defendants have produced evidence that Lockyer signed a form authorizing KMC to bill, claim, and receive fees from Medicare for his services. See HPH Exh. “30.” Mr. Coleman states that in either case, the submission of the claim form to Medicare constitutes a certification by the supervising physician that the services were furnished under the physician’s immediate personal supervision. See Coleman Report at ¶ “c.” Mr. Coleman concludes that an entity submitting claims on behalf of a supervising physician cannot properly certify the claim form if the physician is unaware that she was supervising the services billed. Id. Furthermore, a physician who was unaware that she was supervising services would not be able to take care to be immediately available in the office suite. Id. Mr. Rodriguez disagrees with Mr. Coleman’s assessment of the certification requirement of the Medicare claim form. Because CMS expressly allows a physician to sign a one-time certification letter or authorize the employer to enter the physician’s stamp-facsimile signature on claims, Mr. Rodriguez states that it is apparent that CMS did not contemplate that the supervising physician would personally review each claim submitted by her clinic using her authorized signature. Id. at ¶ “G.” By placing her signature on file, the physician authorized the clinic to bill for her services, including incident-to services without her having to review and sign each claim. Id. at ¶ D. Mr. Rodriguez argues that Mr. Coleman’s assessment applies more to solo practitioner settings than in a “physician directed clinic.” The term “physician directed clinic” is defined in the Medicare Benefit Policy Manual, Ch. 15, § 60.3, as a clinic where: 1. A physician (or a number of physicians) is present to perform medical (rather than administrative) services at all times the clinic is open; 2. Each patient is under the care of a clinical physician; and 3. The nonphysician services are under medical supervision. Medicare Benefit Policy Manual, Ch. 15 § 60.3. Defendants assert, and Plaintiffs do not argue, that KMC meets the criteria for a physician directed clinic. Regarding physician directed clinics, the CMS Medicare Benefit Policy Manual goes on to state, In highly organized clinics, particularly those that are departmentalized, direct physician supervision may be the responsibility of several physicians as opposed to an individual attending physician. In this situation, medical management of all services provided in the clinic is assured. The physician ordering a particular service need not be the physician who is supervising the service. Id. Thus, Mr. Rodriguez concludes, in a physician directed clinic, a physician who is on the premises at the time may be deemed the supervising physician and need not have specific knowledge that she is the supervising physician for the purposes of submitting claims for incident to services to Medicare. See Rodriguez report ¶ “E.” This interpretation is further supported by the statement of Dr. Bernard Fong, who served as Medical Director of Noridian, the applicable Medicare Carrier in this case. Dr. Fong states that the supervising physician may be “any other physician in the group who is immediately available and to whom such duties have been either assigned or agreed upon as part of the group practice agreement to qualify as the ‘supervising’ physician for purposes of the ‘incident to’ rules.” See HPH Exh. “8,” Fong Decl. at ¶ 9. Mr. Coleman does not directly address whether KMC qualifies as a physician directed clinic, but states that for these types of clinics, supervision may be shared by more than one physician, but a supervising physician must be identified on the claim form and that physician “must have been present in the office suit and immediately available to provide assistance during every one of the procedures listed on the claim form.” See Coleman Supplemental Decl. at ¶¶ 2-3. The Court is persuaded by the interpretation of the incident to rules and the Medicare Benefit Policy Manual § 60.3, that in a physician directed clinic setting, any one of multiple physicians who are available in the office suite may be deemed to be supervising the incident to service. Thus, in any given administration of an incident to service, the supervising physician may not and need not be aware that she is supervising a particular incident to service. For billing purposes, a supervising physician’s provider number must be identified on the claim form. The certification on the back of the Medicare claim form requires the entity billing for services to attest that it met the requirements of direct supervision for the services billed, that is, that the physician whose provider number is used was present in the office suite and immediately available to furnish assistance. To the extent that Mr. Coleman disagrees with Mr. Rodriguez’s assessment of the incident to rules, this disagreement, if given weight, goes to the scienter element of FCA liability. Where there is dispute among experts about the requirements of the law, a practice which may constitute a technical violation of one expert’s assessment but is in compliance with another expert’s opinion does not give rise to fraud. See Hagood v. Sonoma County Water Agency, 81 F.3d 1465, 1477 (9th Cir.1996)(showing that Defendant took advantage of a legally disputed question is not enough to establish scienter under the FCA). B. Whether KMC Submitted False Claims in Violation of the “Incident To” Rules 1. Qualification of Nurses Plaintiff Lockyer first claims that Defendants violated the FCA when they submitted claims to Medicare for reimbursement for the administration of chemotherapy by nurses who were not qualified to perform chemotherapy administration services. Plaintiff argues that the incident to rules presume that the services meet the applicable standard of care and that any non-physician personnel must be licensed and qualified to carry out all the services they perform. Thus, under Plaintiff Lockyer’s reasoning, the Defendants’ submission of claims for physician services that were conducted by unqualified nurses without a physician present in the same room constituted false claims. Plaintiffs’ argument suggests that the rules require a two-tiered supervision system where qualified auxiliary personnel only require direct supervision (doctor present in the office suite) while unqualified auxiliary personnel require personal supervision (doctor present in the room). The Court fails to find such a two-tiered supervision requirement in the plain language of the incident to rules. The rules simply require the supervising physician to be present in the office suite and immediately available to furnish assistance. Plaintiff also appears to argue that submitting a claim to Medicare for services rendered using sub-standard care is a false claim in violation of the FCA. Plaintiff produces the Declaration of Nancy Bookbinder, an oncology consultant, who states that a nurse is qualified to administer chemotherapy incident to a physician’s services if the nurse is certified by the Oncology Nursing Certification Corporation. See Lockyer Reply to HPH, Bookbinder Decl. at ¶ 8. Plaintiffs argument is misplaced. First, Defendants produce declarations of several nurses attesting to their on the job training hours, course work, and OCN certifications and a declaration by Dr. Gelmann, an Oncologist, who states his opinion that all oncology nurses listed for KMC between 1999 and 2006 are qualified to perform chemotherapy duties. See Decl. of Dan-nog at ¶ ; Suppl. Decl. of Carlozzi at ¶ 3, Suppl. Decl. Diana at ¶ 3, Suppl. Decl. of Carter at ¶¶ 2 & 3, and Suppl. Decl. Gelmann at ¶ 3. Plaintiff, by contrast, has produced no affirmative evidence tending to prove that the nurses were not qualified to administer chemotherapy. Even if Plaintiff could show that certain nurses were not adequately qualified, such an allegation by itself does not give rise to a FCA claim. Plaintiff does not point to a provision of the incident to rules (or any other Medicare rule) that requires oncology nurses to have certain qualifications in order to bill Medicare for their services. Rather, Plaintiff argues that the rules governing billing for services includes a presumption of meeting a certain standard of care. The Medicare incident to billing requirements do not contain a qualitative standard of care element. The Court agrees with the reasoning in Mikes v. Straus, 274 F.3d 687, (2d Cir.2001), which held that billing for medical services that do not meet the standard of care does not give rise to a FCA violation. The Mikes court reasoned that the False Claims Act is an inappropriate vehicle for policing quality of care, which is better left to local regulation and enforcement. Id. at 700. Plaintiff has not demonstrated that the alleged lack of qualifications of the oncology nurses at KMC gives rise to a viable FCA claim. Furthermore, Plaintiffs do not and cannot allege under these facts that Defendants’ administration of chemotherapy constituted worthless services. See United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1053 (9th Cir.2001)(stating that “knowingly billing for worthless services or recklessly doing so with deliberate ignorance may be actionable under [FCA]”). For these reasons, the Court rejects the Plaintiffs’ argument that the alleged lack of qualification of the oncology nurses at KMC gives rise to a colorable FCA claim for services delivered by those nurses. 2. Whether KMC’s Billing Practice Violated the Incident to Rules Plaintiff Lockyer argues that under the FCA, the chemotherapy administration and billing practices violated the “incident to” rules because he was not aware he was supervising the administration. Neither party contests that during the time in question at KMC, an oncologist made the initial assessment of the patient, established a treatment protocol, and directed the oncology nurse to administer the chemotherapy if the patient’s blood levels and other lab results fell within the acceptable range. Furthermore, it is established that the supervising physician, who could be a non-oncologist, did not have to be in the room, but had to be present in the office suite and immediately available for assistance. KMC has presented evidence, and Plaintiffs have presented no evidence to the contrary, that KMC meets all the requirements of a physician-directed clinic as defined by the Medicare Benefit Policy Manual. Applying the incident to rules to a physician directed clinic setting, as long as at least one physician was present in the office suite available to furnish assistance at all times that chemotherapy was being administered, KMC could deem the available physician as supervising physician for the purposes of billing for the chemotherapy. Defendants argue that their chemotherapy administration and billing practices complied with the incident to rules. Based on his capacity as Medical Director of No-ridian, Dr. Fong states that he is familiar with the incident rules as applied to chemotherapy services, and during the time period from 2000-2004, he “had the opportunity to review KMC’s Medicare billings in general and for chemotherapy in particular. KMC’s Medicare billings were ... entirely consistent with applicable CMS regulations and manuals.” See HPH Exh. 9, Fong Decl. at ¶¶ 5, 8. Plaintiff Lockyer acknowledges that Defendant Evslin asked him in 2002 to sign off on chemotherapy notes and labwork. See PI. Opp. to HPH at p. 31. Lockyer contends that he declined this request, and never understood the request to be an order to supervise the administration of chemotherapy. Lockyer and two other internists declare that they were never aware that they were assigned to supervise the chemo suite. See Lockyer Decl. at ¶ 21, Braun Decl. ¶ 29-31; Netzer Decl. ¶¶ 16-19. Lockyer argues that because he was not aware of his supervisory duties, he did not take care to remain in the internal medicine suite. He claims it was likely he left the second floor for lunch or for administrative reasons. Lockyer produced evidence that there were at least three occasions that he left the KMC clinic and KMC billed Medicare for chemotherapy he was supposed to be supervising. See Lockyer CSF re. Evslin, Exh. 5. Defendants counter with evidence of chemotherapy charts Plaintiff Lockyer signed prior to May 2002 and a medical record showing Lockyer treated a patient for a side effect of chemotherapy in June of 2002. See HPH CSF Exhs. 12, 14, 15. Defendants produce the declarations of three oncology nurses that state that Lockyer covered the chemo suite. HPH CSF Exh. 3, Carlozzi Decl. ¶ 7; Exh. 5, Diana Decl. ¶¶ 10-11; Exh. 25, Dannog Decl. at ¶ 18. Defendants also produce the declarations of three other internists who state they were asked to cover the chemo room and understood that to mean they would be available to render services if necessary. See McKnight Decl. ¶¶ 2-5, and Pixler Decl. ¶¶ 6-9, Diaz decl. ¶ 4. Lockyer stated in his deposition that he was available for emergencies and in one instance helped a nurse in the chemo suite when a patient passed out due to chemotherapy. See HPH CSF Exh. “5,” Lockyer Depo. at 84, 107-108. Defendants also produce two emails that show Lockyer was scheduled to cover for the oncologists on June 7, 2002, and an email asking for confirmation that Lockyer received his daily stipend for covering for the oncologist on June 7. See HPH CSF Exh. 1-B, 1-C. Furthermore, Defendants produced a letter from Defendant Evslin to Plaintiff Lockyer dated August 23, 2002, that states that Lockyer “will be receiving payments for time which you have spent helping with the chemo unit while [the oncologists] were not available.” See HPH CSF, Exh. 11. Generally, Defendants have shown that there is no issue of material fact that Plaintiff Lockyer did supervise the chemo suite, even if he disagrees with the use of the terms “cover” or “supervise.” The incident to rules simply require the supervising physician to be present in the office suite and immediately available to furnish assistance. Defendants have demonstrated that on certain occasions Lockyer was present in the office suite and was available to render assistance if the need arose in the chemo suite, that he signed chemo patients’ charts, and that he received compensation for covering for absent oncologists. This is sufficient evidence to rebut Plaintiff Loekyer’s broadest contention that he was never aware that he was ever covering the chemo suite at KMC. Plaintiffs, however, have raised issues of fact as to whether there were three particular instances in which KMC billed Medicare for chemotherapy services under Lockyer’s provider number when he was away from the office. The incident to rules prohibit billing for services under the provider number of a physician who was not present in the office at the time the alleged supervision took place. Plaintiffs present evidence that on three occasions, he left the office or went home sick and that KMC billed for services under his provider number on those days. See Lockyer CSF re. Evslin Motion, Exh. “5.” Plaintiffs have established that there are material issues of fact as to whether on these three occasions, KMC submitted claims in violation of the incident to rules. The Parties also present conflicting evidence as to whether chemotherapy was ever performed and billed when no supervising physician was available on the suite. Plaintiffs produce the declaration of Christina Newbold, a medical technician and phlebotomist who worked for Lockyer. Newbold states that cancer patients began receiving chemotherapy by 7:30 or 8:00 a.m., but that the first physicians did not arrive on the second floor after conducting hospital rounds until after 8:30 a.m. See Lockyer CSF re. HPH Motion, Exh. 6, Newbold Decl. ¶¶ 9h-i. Defendants produce declarations of oncology nurses who attest that if no physician was available, no chemotherapy was administered, and that activity in the chemo room before physicians arrived in the office was limited to preparatory activity. See Dannog Decl. at ¶ 19, Diana Decl. at ¶ 1, Carter Suppl. Decl. at ¶¶ 5-6. Defendants produce the declaration of internist Mary Pixler who says she remembers being asked to cover the chemo room at lunch or other times when the oncologist or other covering physician was not available. See Pixler Decl. at ¶ 9. Defendants also produce the declaration of internist Diaz who states that he knows of no time, including the noon to 2:00 p.m. lunch break, when no internist was on the second floor. See HPH Exh. 23, Diaz Decl. at ¶ 3. Viewing the evidence in a light most favorable to the non-moving party, Plaintiffs have presented evidence that raises issues of fact as to whether KMC submitted claims for chemotherapy when no supervising physician was available in the office suite in violation of the incident to rules. There are questions of fact as to whether Defendants billed for chemotherapy under Lockyer’s provider number when he was not present to supervise and whether the Defendants billed for chemotherapy services when no physician was present to supervise. An affirmative answer to either factual question would constitute a false claim. However, to be liable under the FCA, the Defendants must have had the requisite scienter when it prepared or submitted the claims to Medicare. C. Whether Defendants had Requisite Scienter under FCA The FCA imposes liability on anyone who knowingly presents a false claim to the government for payment. The False Claims Act defines “knowing” as having actual knowledge of the information, or acting in either deliberate indifference to or reckless disregard for the information’s truth or falsity. 31 U.S.C. § 3729(b) (1994). “Congress specifically amended the False Claims Act to include this definition of scienter, to make ‘firm ... its intention that the act not punish honest mistakes or incorrect claims submitted through mere negligence.’ ” Hochman, 145 F.3d at 1073 (quoting S.Rep. No. 99-345, at 7 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5272). The Ninth Circuit further explained that the requisite scienter is “the knowing presentation of what is known to be false,” United States ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416, 1421 (9th Cir.1991). Here, Defendants argue that the Plaintiffs have not produced any evidence that shows that Defendants knew Plaintiff Lockyer had gone home sick on the three days KMC billed for services under Plaintiff Lockyer’s provider number. Nor do the Plaintiffs present any evidence that the Defendants billed Medicare for chemotherapy services when it knew no supervising physician was available. The FCA requires the element of knowledge on the part of the Defendants. It is not enough that Plaintiffs can point to certain claims that may have been technically incorrect. The Defendants are not liable under the FCA even if they negligently submitted these false claims. See Hochman, 145 F.3d at 1073. Plaintiffs cannot survive summary judgment unless they present some evidence to show that Defendant had knowledge of or recklessly disregarded the fact that it billed for services using provider numbers of physicians who were not present in the office suite. Hagood, 929 F.2d at 1421. At the hearing, Plaintiffs’ counsel conceded that the Plaintiffs have no evidence that the Defendants were aware that Lockyer went home sick on the days he alleges they falsely billed for services under his supervision. Plaintiff Lockyer argues that he did not know he was supervising chemotherapy, and that is sufficient to make out Defendants’ FCA violation. As discussed above, the Court concludes that under the incident to rules, in a physician-directed clinic the supervising physician need not be aware of every instance of service she is deemed to be supervising as long as she was physically present in the office suite and available for immediate assistance. Furthermore, even if Mr. Coleman’s opinion to the contrary is given weight, to the extent that Defendants either did not know that Plaintiff Lockyer was unaware of his supervisory role or to the extent that there is a dispute of law as to whether Lockyer had to be aware of his supervisory role, Plaintiffs have not demonstrated any evidence that Defendants had the requisite scienter to be liable for fraud under the FCA. The Defendants have met their burden of pointing out an absence of evidence of scienter to support Plaintiffs’ FCA claim. Plaintiffs cannot rely on a metaphysical doubt about whether Defendants knowingly made false claims to avoid summary judgment. Due to the lack of any probative evidence of Defendants’ scienter, the Court GRANTS Defendants’ Motion for Summary Judgment on Plaintiffs’ FCA claim. II. Count II: Termination/Retaliation in Violation of State Public Policy In his second claim, Plaintiff Lockyer alleges a common law claim for wrongful termination and retaliation in violation of state public policy. Defendants’ Motion for Summary Judgment as to Lockyer’s second claim is granted. The public policy exception that Plaintiff cites under Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625 (Haw.1982), does not apply to Plaintiff. In Par-nar, the Hawaii Supreme Court adopted a public policy exception to the at-will doctrine of employment, creating a cause of action in tort where an employer may be held liable for discharging its employee in violation of a clear mandate of public policy. See Parnar, 65 Haw. 370, 379-80, 652 P.2d 625. In adopting the public policy exception, the Hawaii Supreme Court emphasized that the exception responded to the strictness of the judicially created at-will doctrine of employment to “correct for inequalities resulting from harsh application of the doctrine.” Id., 65 Haw. at 380, 652 P.2d 625. Here, Lockyer’s employment was subject to an employment agreement that only allowed for termination for cause. See Evslin CSF Exh. “9,” p. 4. Thus, Plaintiff was not an at-will employee. Hawaii courts have generally restricted claims of violation of public policy under Pamar to cases where the employee was an at-will employee. See, e.g., Shoppe v. Gucci America, Inc., 94 Hawai'i 368, 382-83, 14 P.3d 1049, 1063-64 (Haw.2000) (describing the narrow doctrine as an exception to the employment at-will doctrine); Ross v. Stouffer Hotel Co. (Hawaii) Ltd., Inc., 76 Hawai'i 454, 464, 879 P.2d 1037, 1047 (Haw.1994) (same); Kinoshita v. Canadian Pacific Airlines, Ltd., 68 Haw. 594, 600, 724 P.2d 110, 115 (Haw.1986) (same); Takaki v. Allied Machinery Corp., 87 Hawai'i 57, 62, 951 P.2d 507, 512 (1998) (same); see also Shoppe, 94 Hawai'i at 383, 14 P.3d 1049 (“The principle that the at-will doctrine prevails absent a collective bargaining agreement, a contractual provision, or a statutorily-conferred right has remained untouched in this jurisdiction since this court’s decision in Pa-nar.”). However, the Hawaii Supreme Court has allowed a claim for violation of public policy unde! Pamar for a union employee (otherwise covered by a collective bargaining agreement) in a limited circumstance, where the collective bargaining agreement did not address or. seek to protect the public policy at issue, and the legislature had enacted a statutorily-conferred right in the Hawaii Whistleblow-ers’ Protection Act, which was not restricted to at-will employees but instead explicitly superseded collective bargaining agreements that provided inferior rights. See Norris v. Hawaiian Airlines, Inc., 74 Haw. 235, 258-65, 842 P.2d 634, 645-47 (Haw.1992) (reversing dismissal of claim for violation of public policy brought by terminated airline mechanic who was allegedly terminated for reporting a safety violation). Hawaii law recognizes a “public policy exception” to the at-will employment doctrine, such that an employer may be subject to tort liability for wrongful termination of employment in violation of public policy. Parnar v. Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625, 631 (Haw.1982). Even if the public policy exception did apply to Plaintiff Lockyer’s employment contract terminable only for cause, he could not assert a public policy claim under Hawaii law because “courts do not recognize Pamar claims where ... the public policy at issue is contained in a statute, if that statutory scheme provides a remedy for violations of that policy.” Batacan v. Reliant Pharmaceuticals, 324 F.Supp.2d 1144, 1145 (D.Haw.2004). The Hawaii Supreme Court reasoned, “Absent a clear expression of legislative intent to the contrary, we think it is both unnecessary and unwise to permit a judicially created cause of action, which is designed to promote a specific public policy in a ‘narrow class of cases,’ to be maintained where the policy sought to be vindicated is already embodied in a statute providing its own remedy for its violation.” Ross, 76 Hawai'i at 464, 879 P.2d at 1047(internal citations omitted). Here, Plaintiff Lockyer alleges Defendants retaliated against him for requesting an audit of KMC’s finances that would have revealed violations of the state FCA. Plaintiff cites the State’s public policy prohibiting the submission of false and fraudulent claims for payment to government assistance programs and the public policy to guarantee appropriate levels of care to Medicare/Medicaid beneficiaries. Plaintiff says these policies are embodied in Haw. Rev.Stat. § 661 (providing for qui tam actions and recovery for false claims to the state); Haw.Rev.Stat. § 28-91 (establishing a Medicaid Fraud Unit to investigate and prosecute Medicaid fraud); Haw.Rev. Stat. § 346-14 (describing the duties of the Department of Human Services). Complaint at ¶ 36. Plaintiffs cited statutes only address the public policy prohibiting submission of false claims to the government. Defendants argue that Plaintiff may not assert a Pamar claim based on the public policy prohibiting false claims because the statutory scheme that embodies this public policy creates remedies that make a-Par-nar common law claim unnecessary. In his opposition, Plaintiff Lockyer does not dispute Defendants’ argument but simply argues that if the Court grants summary judgment on Defendants’ FCA claims, Plaintiff should be allowed to plead a Par-nar claim in the alternative. Plaintiff misconstrues the operation of the Pamar doctrine. A common-law Pamar claim is not an alternative method to seek a remedy if the underlying statutory claim fails. The Batacan court addressed a similar argument by saying, “If (assuming arguendo) [Plaintiff] cannot prevail on an [sic] FMLA claim (i.e. if [Defendant] did not violate the FMLA), then [Defendant] necessarily would not have violated the public policy embodied in the FMLA.” Batacan, 324 F.Supp.2d at 1146. Similarly, here, if Plaintiff cannot prevail on his FCA claim, then no public policy violation of submitting false claims has occurred that would require remedy through statutory or common law means. The statute clearly lays out a remedy within the statutory scheme for qui tam plaintiffs in false claims actions. In Haw. Rev.Stat. § 661-27, the legislature laid out the means of calculating awards given to successful qui tam plaintiffs both in the event that the state chooses to proceed with the action and if the state declines to proceed with the action. The existence of a statutory remedy for violation of the prohibition on submitting false claims under Haw.Rev.Stat. § 661 precludes a common law Pamar remedy as unnecessary. Defendants’ Motion for Summary Judgment as to Plaintiffs common law claim for retaliation in violation of the public policy prohibiting submission of false and fraudulent claims for payment to government assistance programs is GRANTED. III. Count III: Retaliation in Violation of Federal and State Whistleblower Protection Laws Both Defendants HPH Entities and Evslin seek Summary Judgment on Plaintiffs third claim alleging violation of the federal and state whistleblower protection laws. A. Federal Whistleblower Protection The federal FCA contains a provision that protects “whistleblowers” from retaliation by their employers for actions taken in furtherance of pursuing a FCA claim against the employer. 31 U.S.C. § 3730(h). The Ninth Circuit delineated three elements the Plaintiff must prove to prevail in a Section 3730(h) claim: (1)the employee must have been engaging in conduct protected under the Act; (2) the employer must have known that the employee was engaging in such conduct; and (3) the employer must have discriminated against the employee because of her protected conduct. United States of America ex rel. Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir.1996). 1. Statute of Limitations This Court has previously held that the applicable statute of limitations for Section 3730(h) claims is determined by looking to the most closely analogous statute of limitations under state law, which is the Hawaii Whistleblower Protection Act (“HWPA”)codified at Haw.Rev.Stat. § 378-61. U.S. ex rel. Hinden v. UNC/Lear Services, Inc., 362 F.Supp.2d 1203, 1209 (D.Haw.2005). The limitations period for claims under the HWPA was, until April 26, 2002, ninety-days from the alleged violation of the act. The limitations period was extended from ninety-days to two-years, effective April 26, 2002. HRS § 378-63 (2003)(amended by L 2002, c 56, § 3). Plaintiffs Complaint alleges retaliatory acts that took place after April 26, 2002. Thus, the Court will apply a two year statute of limitations to Plaintiffs claim for retaliatory discharge under 31 U.S.C. § 3730(h). Hinden, 362 F.Supp.2d at 1209. This Court has also found that the two year statute of limitations runs from the date of the occurrence of the alleged violation. Lopes v. Kapiolani Medical Center for Women & Children, et al., 410 F.Supp.2d 939, 952 (D.Haw.2005). Applying the two year limitations period, the Court will only consider the alleged retaliatory acts that occurred within the two years prior to Plaintiffs filing of his Complaint on October 1, 2004. 2. Retaliation Claim as to Defendants HPH Entities a. Element one: Whether Plaintiff engaged in protected activity The first element of a retaliation claim under Section 3730(h) states that the employee must have been engaging in protected conduct in furtherance of the FCA. See Hopper, 91 F.3d at 1269. While “[s]pecific awareness of the FCA is not required,” Plaintiff “must be investigating matters which are calculated, or reasonably could lead, to a viable FCA action.” Id. An employee engages in protected activity under the FCA where “(1) the employee in good faith believes, and (2) a reasonable employee in the same or similar circumstances might believe, that the employer is possibly committing some fraud against the government.” Moore v. California Institute of Technology Jet Propulsion Laboratory, 275 F.3d 838, 845 (9th Cir.2002). The Moore court thus created a test with subjective and objective components for assessing whether activity is protected conduct under the FCA. Id. at n. 1. Plaintiff argues that he engaged in protected activity by investigating the billing practices of KMC which, because of his medical practice, necessarily included claims filed for reimbursement from Medicare. Plaintiff further argues that Defendants’ denials of his requests for data provides the requisite evidence to show that he engaged in protected activity. Notably absent from Plaintiffs argument is any affirmative evidence that Plaintiff had the subjective belief that KMC was conducting fraud against the government at the time he made his requests. In cases where the courts have found that a plaintiff had established a question of fact as to whether he engaged in protected activity, there is usually some evidence that the Plaintiff, at the time of the investigatory activity, expressed his or her suspicion of fraud. See, e.g., Moore, 275 F.3d at 846 (special agent who took plaintiffs call recalled plaintiff said he “suspected fraud at JPL,” a government contractor). Plaintiff cites an unpublished case, Sweeney v. Manorcare Health Services, Inc., 2006 WL 1042015 (W.D.Wash.2006), from the U.S. District Court in Washington, to support his assertion that he need not have used the words “investigate,” “fraud,” or “whistleblower” to be able to claim he engaged in protected activity. Nevertheless, in Sweeney, the plaintiff “claims to have specifically accused [Defendants] of ‘engaging in illegal conduct in regards to billing for service not provided.’ ” Id. at *7. Unlike the plaintiffs in Moore or Sweeney Plaintiff Lockyer’s evidence does not show that at the time he asked for his compensation data (his alleged “investigatory activity”) he was doing so because he suspected fraud on the government. In Plaintiff Lockyer’s declaration of March 9, 2007, he states that a remark from a KMC claims processing clerk in February of 2002 made him suspicious that Defendants were defrauding patients and HMSA, a private insurer. See Lockyer Corrected Deck at ¶¶ 51-53. He states that the clerk remarked to him that she had been told to forget about a report she made about claims she made under a physician’s provider number no longer employed at KMC and that she been contacted by HMSA questioning $30,000 in claims that appeared to be billed under the wrong provider number. Id. Lockyer says he began searching for legal counsel because he felt a duty to report his suspicions of fraud and ultimately compelled arbitration. Id. at ¶ 53. However, Plaintiffs pleadings, deposition, and other evidence contradict Lockyer’s assertion that he suspected that KMC was engaging in fraud in 2002 and demonstrate instead that Lockyer demanded arbitration because he suspected his salary was being shorted and he was being underpaid. For example, Defendants state, and Plaintiffs do not rebut, that Lockyer stated in a Disclosure to Defendants that his investigatory actions were “to establish whether pay reductions imposed upon him were accurate and reasonable according to his employment contract.” See Evslin Reply at p. 9; Evslin CSF ¶ 38. In Plaintiffs deposition, he stated that the purpose for his request for documentation of his pay was because he didn’t think his pay was accurate. See Evslin Reply, Exh. “59,” Lockyer Depo. at p. 93. The May 24, 2002 request for compensation documentation from Plaintiff Lockyer’s attorney stated that the request’s purpose was to “satisfy himself whether KMC has proper grounds for reducing his salary.” See Evslin CSF, Exh. “25.” Indeed, at the time, it seems the core of Plaintiffs concern was that KMC was under-reimbursing him for payment he was rightly owed under his employment contract, not that KMC was overcharging the government for claims that it was not entitled to bill. Plaintiff cannot create an issue of material fact through a declaration that contradicts his prior deposition testimony. See Hambleton Brothers Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217, 1225 (9th Cir.2005); Disc Golf Ass’n, Inc. v. Champion Discs, Inc., 158 F.3d 1002, 1008 (9th Cir.1998) (“A party cannot create a triable issue of fact, and thus survive summary judgment, merely by contradicting his or her own sworn deposition testimony with a later declaration”). Plaintiff Lockyer has not created an issue of fact by contradicting his sworn testimony with a later declaration that he began seeking legal counsel and demanded arbitration because he suspected KMC was engaging in fraud. Plaintiff has failed to establish genuine issues of material fact as to whether at the time he requested documents he had the requisite subjective belief that KMC was defrauding the government. b. Element two: Whether Defendants were aware that Plaintiff engaged in protected activity Even if Plaintiff has produced evidence sufficient to allow the factfinder to conclude that he engaged in protected activity, to satisfy element two of the prima facie case under Section 3730(h), there must be some evidence that Defendants were aware that Plaintiff Lockyer was investigating fraud. Hopper, 91 F.3d at 1269. The element of employer awareness is necessary to show that the employer possessed the necessary retaliatory intent. Id. In cases where courts have found an employer had notice that the employee was engaging in protected conduct, the plaintiff had produced evidence that he or she voiced a concern about fraud on the federal government or referenced a qui tam FCA action to the employer. In Moore, the court found that there was a genuine issue of fact as to the employer’s notice because the employer’s in-house counsel recommended that Plaintiff voice his fraud concerns to the in-house ethics head and told Plaintiff twice that he would be protected against retaliation as a whis-tleblower. Moore, 275 F.3d at 838. In United States ex rel. McKenzie v. Bell-South