United States ex rel. Berglund v. Boeing Co. (835 F. Supp. 2d 1020, 2011)

Opinion and Order

ACOSTA, United States Magistrate Judge:

Relator, Cliff Berglund, filed a Third Amended Complaint (“TAC”) alleging defendant, The Boeing Company (“Boeing”), committed fraud on the United States government pursuant to the qui tam provisions of the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733, and violated the Act’s retaliation provision. In Count One of the TAC, Berglund alleges, among other things, that Boeing submitted false claims to the United States by delivering contractually nonconforming aircraft parts to agencies of the United States. Specifically, Berglund alleges mistakes were made by shop floor personnel at Boeing’s Portland facility in complying with internal Boeing specifications for the production of commercial aviation parts. Berglund maintains the errors were documented in Boeing’s quality system. The United States declined to intervene in this action on July 1, 2005. On May 4, 2010, the parties stipulated that Count One of the TAC be dismissed with prejudice to Berglund and without costs to any party.

In Count Two of the TAC, Berglund alleges Boeing engaged in retaliatory conduct because he sought to rectify Boeing’s violations of its aircraft contract requirements and because he reported Boeing’s malfeasance to the federal government. Additionally, Berglund alleges Boeing discriminated against him in the terms and conditions of his employment because of the lawful acts he pursued in furtherance of actions brought under the False Claims Act. (Third Am. Compl. ¶¶ 140-141.)

Pursuant to Fed. R. Crv. P 56(a), Boeing moves the court to enter judgment against Count Two of Berglund’s TAC on the ground that most of Berglund’s retaliation claims are barred by the statute of limitations and the remaining allegations are “indisputably false.” (Def s Mot. Summ. J. 1-2.) In addition, Boeing moves for sanctions against Berglund for an alleged “campaign” to alter, conceal and destroy evidence and give false testimony under oath. (Def.’s Mot. Sanctions 2.) Oral argument was heard on Boeing’s Motion for Summary Judgment and Motions for Sanctions and, for the reasons that follow, Boeing’s request for summary judgment is denied and its request for sanctions is granted.

Factual Background

Berglund is a manufacturing planner at Boeing and he began working there in 1979. (Doug Hanna Decl. Ex. B, Nov. 15, 2010.) At the start of 2001, Berglund held the position of DGKJT Manufacturing/Engineer Planner Level 4. (Hanna Decl. Ex. B at 3.)

In his declaration, Berglund states that in late 2000, he learned one or more Boeing subcontractors were omitting a critical cleaning process in the manufacture of certain titanium alloys. (Cliff Berglund Decl. ¶ 4, Jan. 31, 2011.) Boeing denies this allegation.

In February 2001, Berglund, along with Jeffrey Biron, filed an initial lawsuit against Boeing and other defendants pursuant to the FCA. See United State ex rel. Jeffrey Biron and Cliff Berglund v. QPM Aerospace, Inc., The Boeing Company, et al., CV No. 01-163-KI (“Biron and Berglund ”). This original action included a claim by Biron for retaliation, but not a retaliation claim by Berglund. Although Biron and Berglund presented the Complaint to this court as a sealed document, the Clerk of the court mistakenly posted the Complaint on the court’s website where it remained for a few days, available for public viewing. (David Hollander Decl. ¶ 3, Feb. 1, 2011.) Boeing learned of the lawsuit while it was posted on the Court’s website and available for public view. (Berglund Decl. ¶¶7-8; Larry Payette Decl. ¶¶ 2-4, Jan. 30, 2011.) Berglund alleges one of his managers, Lorenzo Ontiveros, had a copy of the Biron and Berglund Complaint on or about February 2001. (Berglund Decl. ¶¶ 7-8; Payette Decl. ¶¶ 2-4.)

Fifteen months later, on June 4, 2002, a Second Amended Complaint was filed in Biron and Berglund, alleging Boeing retaliated against Berglund for his FCA activities. (Calvin Keith Decl. Ex. A at ¶¶ 103-05, Nov. 15, 2010.) Subsequently, in May 2004, Biron and Berglund voluntarily dismissed this initial case.

Berglund filed the present action on February 15, 2002, and the Complaint contained only one claim for relief for violations of the FCA; it did not allege a claim for retaliation. (Keith Decl. Ex. B at ¶¶ 5-32.) Over two years later, on May 17, 2004, Berglund filed a Second Amended Complaint (“SAC”), to add a count of retaliation under the whistleblower provision of the FCA, 31 U.S.C. § 3730(h). (Keith Decl. Ex. C at 32.) Subsequently, Berglund abandoned his allegations that Boeing committed fraud on the government. (Keith Decl. Ex. G.) As a result, the only remaining claim in this case is Berglund’s retaliation claim.

In his SAC, Berglund alleges numerous instances of retaliation. (Keith Decl. Ex. C at ¶¶ 129-139.) According to Boeing, most of these events took place before May 17, 2003, one year prior to Berglund filing his SAC adding the retaliation claim. For example, Berglund claims that “[a]fter February 2001” he “applied for and was denied managerial advancement on dozens of occasions.” (Keith Decl. Ex. C at ¶ 134.) Also, “Relator Berglund was stripped of many of his job responsibilities as a lead/Focal Manufacturing Engineering Planner.” (Keith Decl. Ex. C at ¶ 134.) Finally, Berglund further alleges in March 2002, he was “demoted to a lesser job grade with lesser responsibilities.” (Keith Decl. Ex. C at ¶ 136.)

According to Boeing, Berglund claims only two instances of retaliation that allegedly took place after May 17, 2003, and two instances in the year between May 17, 2002, and May 17, 2003. First, Berglund claims that “[sjince at least the 3rd QTR 2002 Relator’s supervisors have been monitoring Relator’s work assignments are [ ] being monitored, graphed and being [sic] over scrutinized.” (Keith Decl. Ex. E at 9.) Second, he was assigned a lower retention rating in November 2002 following a yearly review. (Hanna Decl. Ex. B at 3.) Third, in April 2003, his home and vehicle were vandalized. (Keith Decl. Ex. E at 9.) Lastly, he was laid off in September 2003. (Keith Decl. Ex. C at ¶ 138.)

Berglund is a member of he Society of Professional Engineering Employees in Aerospace (“SPEEA”), a union that represents engineers and other technical professionals in the aerospace industry, including those working at Boeing. (Deborah Stern-berg Decl. ¶ 2, Nov. 15, 2000.) SPEEA and Boeing negotiated collective bargaining agreements governing the terms of employment for SPEEA members. (Sternberg Decl. ¶2.) Berglund asserts that as a SPEEA member he cannot be terminated, suspended, or otherwise disciplined except for good cause. The collective bargaining agreement, however, sets forth a procedure for deciding which employees will be let go when layoffs are necessary. (Sternberg Decl. ¶¶ 3-5.)

Under these procedures, roughly once a year managers evaluate all employees, who are then ranked against all those within the same organization, skill code, or job classification and level. (Sternberg Decl. ¶ 3; Hanna Decl. ¶ 2.) The parties agree Berglund is subject to periodic reviews that should take place once each year. However, Berglund contends that at times his yearly evaluations either did not occur or took place more frequently than once a year. Employees are assigned one of three ratings, R1-R3, with R1 as the highest and R3 as the lowest. (Sternberg Decl. ¶ 3; Hanna Decl. ¶ 3.) These rankings are assigned according to a forced distribution system, which requires about 40 percent of employees to be rated Rl, 40 percent to be rated R2, and 20 percent to be rated R3. (Sternberg Decl. ¶ 3; Hanna Decl. ¶ 3.)

According to Boeing, it independently evaluates whether layoffs are necessary and, if so, the scope and size. If Boeing determines layoffs are necessary, it implements the order of layoff using the ratings system. (Sternberg Decl. ¶¶ 5, 7.) Generally, those rated R3 will be laid off before those rated R2, and those rated R2 before those rated Rl. (Sternberg ¶ 7.) Berglund concedes layoffs are designed to occur in this manner, but insists his retention rating was manipulated by Boeing to ensure he would be laid off at the first available opportunity.

At the end of 2000, just weeks prior to the filing of the Biron and Berglund Complaint, Boeing reviewed Berglund for the calendar year 2000. In that performance review, Berglund’s supervisor, Fred Reynolds, stated:

You worked on some significant initiatives this year with high success.

• Initiated testing process towards the implementation of “fatigue Technology ForceMate” method of bushing installation for our engine mounts. I know you are working on a demonstration for Jan. 2001. The benefits could be far reaching.

• 747 Carriages

• Lg — elimination of (4) holes/part that are not being used on the plane. Not only will this save time in not having to put in the holes and additional steps, it will eliminate R/Ts. There are (16) holes per S/S. Status— waiting on BMT memo # .

• Sm — You met with Everett Planning and Engineering on eliminating (1) Part number/configuration (65B08026-) for the outboard. This will make it cheaper and simpler through all the shops. Effective LN1278.

• Standardization of PCUs — After much work you were able to stabilize the PCUs generated for our products. This will help us in forecasting requirements and costs, and can now be used to help other business team with their PCUs. Thank you for your support.

(Second Cliff Berglund Decl. Ex. 16-1, Jan. 31, 2011.)

Berglund insists that, prior to the February 2001 filing of the Biron and Berglund matter, his reviews and commendations demonstrated continuing improvement, increasing responsibilities and promotions. According to Berglund, his supervisors, and others, described him as supportive of the departmental and company goals of continuous improvement, promoting teamwork and use of people skills. (Second Berglund Dec. Exs. 9-11.) Examples of Berglund’s commendations prior to February 2001, include: acknowledging his contribution, individually and as part of team, for going “a long way in keeping the Boeing Company’s position of leadership in the aircraft industry[ ]” (Second Berglund Dec. Ex. 17); acknowledging his “professionalism and desire to get the job done” as being “instrumental in accelerating the development, testing and process implementation” for an outside vendor on “one of its most difficult projects ... [ ]” (Second Berglund Dec. Ex. 18); being commended for his “sincerity and professionalism” and described as “patient,” demonstrating “effective leadership skills” and “pleasurable to work with[]” (Second Berglund Dec. Exs. 19, 20-1); a thank you from Boeing for his “assistance in demonstrating [Boeing’s] competitive edge[ ]” (Second Berglund Dec. Ex. 20-2); and, describing his “customer satisfaction” as “above average” and “improving.” (Second Berglund Dec. Ex. 15-2.)

Despite the foregoing statements during Berglund’s annual reviews and commendations prior to 2001, Boeing charges Berglund’s reviews prior to the filing of the Complaint in Biron and Berglund reveal concerns with insubordination and poor interaction with eoworkers. Additionally, Boeing alleges Berglund received corrective action memoranda before and after filing the action. Nevertheless, Berglund insists that, prior to February 2, 2001, there is no evidence of the type of behavioral and performance problems Doug Hanna, Berglund’s direct supervisor since August 2002, attributes to Berglund; nor is there evidence Berglund was ever counseled, criticized or disciplined for the type of behavioral and performance problems attributed to him by Hanna. (Berglund Dec. ¶ 37.)

Following the events of September 2001, Boeing suffered heavy losses and was forced to implement layoffs. (Sternberg Decl. ¶5.) The post-September 2001 layoffs were implemented using the ratings system. (Sternberg Decl. ¶¶ 6-7.) All employees in Berglund’s position and with his retention rating were laid off. (Stern-berg Decl. ¶ 8.)

Boeing insists Berglund was assigned his retention rating in November 2002, prior to asserting his retaliation claims in this case. (Hanna Decl. Ex. B at 3.) Additionally, Berglund had been assigned an R2 rating in May 2001, and an R1 rating in March 2002. (Hanna Decl. Ex. B at 3-4.) Berglund was rehired approximately one year after he was laid off. (Hanna Decl. Ex. B at 3.) Between his rehiring in 2004, and the present, Berglund has received all three ratings at various times. (Hanna Decl. Ex. B at 1-3.) When questioned about why Boeing would at times raise his retention rating if the company were retaliating against him, Berglund testified:

Q. In this nine-year period since you’ve filed your lawsuit, whenever there’s a retention rating that goes down, you attribute that to retaliation for your lawsuits; every time it goes up, it’s either your work performance, or just the nature of the foree[d] distribution process; is that correct?

A. I believe that is correct.

Q. We went through all these examples, and we can go over them again. But when I asked you about the retention drops, you attributed the cause to retaliation. And when I asked you about the retention improvements, you attributed the cause to either your performance, or the nature of the way the contract works, correct?

A. That’s correct.

(Keith Decl. Ex. F (Cliff Berglund Dep. 908:6-909:7, Jan. 28, 2010) (hereinafter “Berglund Dep.”).)

Boeing maintains it is undisputed Berglund received his low ratings because he was a poor employee. For example, Hanna, Berglund’s direct supervisor, wrote in a 2002 evaluation: “Never in my management experience have I encountered such consistent and intense customer dissatisfaction with an employee. I was unable to locate a single customer or peer that wanted to work with you.” (Hanna Decl. Ex. A) Several other of Berglund’s supervisors and customers delivered similar criticisms. In fact, one of Berglund’s yearly reviews included the following comments from various customers:

□ I went to his manager several months ago and asked to have him replaced. He is so bad that I have to believe he’s screwing things up on purpose. No one could be this stupid.

□ Cliff is untrustworthy and will lie when the truth will do better.

□ Cliff is arrogant, condescending & argumentative.

□ Please move him somewhere that I will never have to deal with him again.

□ Cliff is extremely difficult to work with. He doesn’t listen & wants to do things his way.

□ Cliff Berglund is very uncooperative.

□ Customer satisfaction is terrible!

□ Very difficult to work with!

□ I would prefer to never work with Cliff again. Please get me another planner to work with!

□ Comes across as very arrogant. Seems to focus exclusively on proving his point rather than honestly looking for the right answer.

□ Incredibly bad teamwork ... arrogant, defensive, condescending.

(Hanna Decl. Ex. C.)

Additionally, Berglund has also received numerous corrective action reports while at Boeing. For example, he has been cited for viewing sexually explicit material on his work computer on company time. (Hanna Decl. Ex. D1 at 1.) Berglund was subject to discipline for allowing a nonconformity to escape Boeing’s Portland plant. (Hanna Decl. Ex. D2 at 7.) He was criticized for creating faulty planning in March 2003. (Berglund Dep. 937:21-938:18.)

Berglund alleges that, beginning in approximately April of 2001, Boeing commenced a pattern of harassment and retaliation examples of which included:

a. In or about April, 2001 Berglund received a corrective action memo from his supervisor, Reynolds. This memo accused him of failing to inform management of the effects of nitric fluoride acid etching on titanium parts. Berglund alleges in his declaration he had previously notified both Support Team Managers, Dennis Gessler and Kevin Kruger, not to accept these parts because the etching process would change the dimensions of the parts. (Berglund Decl. ¶ 9.)

b. Berglund further alleges, by the end of 2001, Boeing had significantly reduced Berglund’s job responsibilities. In December 2001, Berglund’s retention rating was downgraded from R2 to R3. (Berglund Decl. ¶¶ 12-14.)

c. Berglund alleges, in or about September 2001, Ontiveros, the Quality Assurance General Manager, twice requested he make unauthorized changes to D6-1276 (flight critical) parts, which Berglund refused to do. According to Berglund, making such changes would have subjected him to disciplinary action up to and including termination. (Berglund Decl. ¶ 10.)

d. Berglund claims, in October 2001, under the pretense of a reorganization, Berglund was removed from the position that he held for the previous 12 years, Lead/Focal Manufacturing Planner for the Engine Mount/Flap Carriage Business Team. Berglund further alleges he was divested from all responsibilities for his product focus, and no similarly situated Lead Manufacturing Planner in Portland was removed from their product focus. Berglund was reassigned responsibility for four part numbers for 747 flap carriages and two part numbers for 737 Classic spare flap carriages. The 747 parts were in only limited production and the 737 parts were not in production at all. Thus, Berglund, in essence, had nothing to do. Further, as a consequence of his reassignment Berglund was no longer performing work consistent with his Level 4 skill grade. (Berglund Decl. ¶¶ 12-14.)

e. On or about March 6, 2002, Berglund was informed his job title of Level 4 Manufacturing Engineer/Planner was to be eliminated and he had the choice of a downgrade to a Level 3 Manufacturing/Engineer Planner or termination, to which Berglund chose the down grade. (Berglund DecU 27.)

f. At the time of Berglund’s downgrade to Level 3, there were two other individuals at Boeing Portland with the classification of Level 4 Manufacturing/Engineer Planner, Dave Sasseen and Toby Tyler. Berglund alleges neither Sasseen nor Tyler were downgraded to a Level 3 Manufacturing/Engirieer Planner and, rather, both retained their Grade Level 4 and were given positions in a newly created job classification of Product Manager. (Berglund Decl. ¶ 28.)

g. Berglund alleges he asked his managers whether there was any more Level 4 work in Portland and was told “yes,” but it was to be performed by individuals with the “Product Manager” classification. (Berglund Decl. ¶ 27.)

h. Berglund alleges his complaints to Susan Miller in Boeing Portland Human Resources have gone unanswered. (Berglund Decl. ¶¶ 30-32.)

i. In August 2002, Hanna became Berglund’s manager. Berglund admits he received a “scathing review” from Hanna at the end of 2002. Berglund charges, however, that Hanna’s review was not constructive and was a personal attack intended to lower Berglund’s morale and encourage him to quit his position at Boeing. Further, Berglund claims Hanna’s 2002 review was not in Boeing’s usual format, which would allow him an opportunity to address the criticisms and provide his thoughts and feedback. Additionally, Berglund claims neither Hanna nor any previous supervisor ever counseled or disciplined him for the type of behavior set out in the “Customer Comments re: Cliff Berglund Performance” document. Following the November 2002 review by Hanna, Berglund’s retention rating was downgraded from an R2 to and R3, which was raised to an R2 based on Berglund’s seniority. (Berglund Decl. ¶¶ 35-38; Hanna Decl. Ex. C.)

j. Berglund remained in that position until July 19, 2003, when Boeing issued a Workers Adjustment and Retraining Notification (‘WARN”) advance notice of termination effective September 19, 2003. (Berglund Decl. ¶ 40.)

Berglund was rehired approximately one year after he was laid off. (Hanna Decl. Ex. B at 3.) He was recalled pursuant to a provision in the collective bargaining agreement allowing those laid off to be eligible for priority recall if openings become available, even though Boeing had the option of taking him off the priority recall list. (Sternberg Decl. ¶ 9.)

Legal Standard

Summary judgment is appropriate “if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed R. Civ. P. 56(a). The party seeking summary judgment bears the initial burden of demonstrating no genuine dispute of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All material facts are resolved in a light most favorable to the nonmoving party. Id. at 331, 106 S.Ct. 2548. The court must accept all evidence and make all inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Discussion

The FCA is a statutory scheme intended to discourage fraud against the federal government. Under the FCA, a private individual is authorized, among other things, to bring an action on behalf of the United States against any entity that has knowingly presented a false or fraudulent claim to the government. See, e.g., United States ex rel. Anderson v. Northern Telecom, 52 F.3d 810, 812-813 (9th Cir.1995). Section 3729(a)(1)(A) is violated by one who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval^]” Section 3729(a)(1)(B) is violated by one who “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim[.]” A “claim” includes “any request or demand, whether under a contract or otherwise, for money or property....” Id. at 3729(b)(2). Such an action is termed a “qui tarn ” action and is most often filed by an insider at a private company who discovers his employer has overcharged under a government contract; supplied substandard products or services; engaged in false negotiation, including bid rigging and defective pricing; or provided false certification of compliance with federal law. See Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir.1996) (and cases cited therein).

In 1986, Congress amended the FCA, to include an anti-retaliation provision to protect whistleblowers. False Claims Amendments Act of 1986, Pub.L. No. 99-562, § 4, 100 Stat. 3153, 3157-58. The FCA protects employees from being “discharged, demoted, ... or in any other manner discriminated against in the terms and conditions of employment ... because of lawful acts done by the employee ... in furtherance of an [FCA] action ... including investigation for, initiation of, testimony for, or assistance in an [FCA] action.... ” 31 U.S.C. § 3730(h). The purpose of § 3730(h) is to promote enforcement of the FCA by “assuring] those who may be considering exposing fraud that they are legally protected from retaliatory acts.” S.Rep. No. 99-345, at 34, 1986 U.S.C.C.AN. 5266, 5299 (1986). Section 3730(h) is referred to as the whistleblower provision of the FCA. See, e.g., Hopper, 91 F.3d at 1269 (“Congress added 31 U.S.C. § 3730(h) to the FCA in 1986 to protect ‘whistleblowers,’ those who come forward with evidence their employer is defrauding the government, from retaliation by their employer.” citing S.Rep. No. 345, 99th Cong., 2d Sess. 34 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5299.)

In Count One of the TAC Berglund alleges Boeing violated two substantive provisions of the FCA: 31 U.S.C. §§ 3729(a)(1) and (a)(2). Berglund’s FCA claim is grounded in allegations that Boeing disregarded manufacturing requirements that resulted in the production of nonconforming parts. These nonconforming parts were then certified as meeting specifications and sold to the United States. Although Berglund subsequently entered into a stipulated dismissal of Count One, he alleges in Count Two of the TAC that Boeing violated § 3730(h) of the FCA when it in engaged in retaliatory conduct because “Berglund sought to rectify Boeing’s violations of its aircraft contract requirements, and because [ ] Berglund reported Boeing’s malfeasance to the United States.” (Third Am. Compl. ¶ 139.) Additionally, Berglund claims he was “discriminated against in the terms and conditions of his employment by Boeing ... because of lawful acts done by him in the furtherance of actions brought under the False Claims Act.” (Third Am. Compl. ¶ 140.)

Boeing seeks an entry of judgment against Berglund’s whistleblower claim on the grounds that most of Berglund’s retaliation allegations are time barred and the remainder fail to present a disputed issue of fact of the necessary retaliation elements. Thus, before reaching the merits of Berglund’s retaliation claim, the court must resolve two threshold questions: (1) the applicable statute of limitations; and (2) the date the limitations period was tolled.

I. Applicable Limitations Period

Boeing seeks an entry of judgment against Berglund’s whistleblower claim on the grounds that most of Berglund’s retaliation allegations are time barred and the remainder fail to present a disputed issue of fact on the necessary retaliation elements. See 31 U.S.C. § 3731(b) (“A civil action under section 3730 may not be brought ... more than 6 years after the date on which the violation ... is committed ....”) In Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005), the Supreme Court determined the six-year limitations period set forth in 31 U.S.C. § 3731(b) did not govern actions for retaliation under § 3730(h); rather, the “most closely analogous state limitations period applies.” Id. at 411, 125 S.Ct. 2444. As such, Boeing contends either Oregon’s Whistleblower Protection Statute, Or.Rev.Stat. § 659A.199, with a one-year statute of limitations, see Or.Rev.Stat. § 659A.885(2) and Or.Rev.Stat. § 659A.875(1); or Oregon’s common law tort for wrongful discharge, which relies on Oregon’s two year catch-all limitations period, see Or. Rev. Stat § 12.110(1), applies to Berglund’s § 3730(h) claim. According to Boeing, application of either limitations period excludes as time-barred most of Berglund’s allegations in support of his retaliation claim, which was filed on May 17, 2004. Additionally, Boeing argues Berglund’s retaliation claim does not relate back either to the original Complaint in this case, filed in February 2002, or the Second Amended Complaint in Biron and Berglund, filed in June 2002.

Boeing urges the court to apply a limitation period that was not in effect at the time Berglund’s retaliation claim arose. As stated above, Boeing contends the court should apply the one-year limitations period used for Oregon’s “Whistleblowing” statute. See Or.Rev.Stat. § 659A.199. Section 659A.199, titled “Whistleblowing,” makes it “an unlawful employment practice” to “discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for” employees who “in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation,” which tracks closely the whistleblower provision in the FCA. See 31 U.S.C. § 3730(h). Boeing acknowledges § 659A.199 applies to cases filed after January 1, 2010 (see 2009 Or. Laws, c. 524, § 2), and Berglund “may protest that it is somehow unfair or retroactive to apply a statute of limitations passed in 2009 to a claim filed in 2004.” (Defs. Mem. Summ. J. 12.) According to Boeing, however, Berglund’s objections to a retroactive application of the one-year limitations period for § 659A.199 are meritless. Boeing argues, first, the court should apply the law existing at the time of decision, not the time of filing, and, second, “the effective date is irrelevant because the statute of limitations is being borrowed as a matter of federal common law; it is not being applied as a matter of Oregon law.” (Def.’s Mem. Summ. J. 12 (emphasis in original).) Finally, Boeing insists there is nothing “exceptionally unfair” about applying the one-year statute of limitations here.

It is clear the one year limitations period for § 659A.199 (see Or.Rev.Stat. §§ 659A.885(2) and 659A.875(1)), should not apply here. The Oregon Legislature expressly stated its intent that § 659.199A apply only to “actions commenced on or after the effective date of this 2009 Act,” which was January 1, 2010. See 2009 Or. Laws, c. 524, § 2. See also Riofrio v. Del Monte Fresh Produce N.A., Inc., CV 10-562-HA, 2010 WL 4536794, *4 (D.Or. Nov. 2, 2010) (“The statute expressly states that it is intended to apply to actions that are filed after the effective date of January 1, 2010.”); Duran v. Window Products, Inc., No. CV 10-125-ST, 2010 WL 6420572, *5-6 (D.Or. Dec. 22, 2010) (“Simply because Legislative Counsel excluded this effective-date clause from the text of ORS 659A.199 does not allow this court to ignore it.”), adopted 2011 WL 126190 (D.Or. Mar. 29, 2011). See also Chenault v. U.S. Postal Service, 37 F.3d 535, 539 (9th Cir.1994) (“A newly enacted statute that shortens the applicable statute of limitations may not be applied retroactively to bar a plaintiffs claim that might otherwise be brought under the old statutory scheme because to do so would be manifestly unjust.”).

Berglund also urges the court to apply a limitations period not in effect at the time his retaliation claim arose. Specifically, Berglund maintains the appropriate limitations period is the three-year period now contained in § 3730(h)(3), as amended in 2009, and implemented on October 18, 2010. Section 3730(h)(3) provides: “A civil action under this subsection may not be brought more than 3 years after the date when the retaliation occurred.” Berglund argues Congress has explicitly included a statute of limitations for retaliation claims brought under § 3730(h) and, thus, it is nonsensical for the court to apply Oregon’s one-year limitations period. Simply, there is no need to search for the most-closely-analogous state statute because the federal statute of limitation directly applies to the claim at issue.

The law is well established that if Congress has not supplied a limitations period for a federal cause of action, the courts are to apply the most closely analogous statute of limitations under state law. See, e.g., Reed v. United Transp. Union, 488 U.S. 319, 323-24, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989) (and cases cited therein). As mentioned above, in 2005, the Supreme Court concluded Congress had not supplied a statute of limitations for FCA retaliation claims, and directed courts to “borrow” the statute of limitations governing the closest analog under state law. Graham County, 545 U.S. at 417-18, 125 S.Ct. 2444. Subsequently, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), Pub.L. No. 111-203, 124 Stat. 1376, which amended the FCA to supply an express statute of limitation for § 3730(h) retaliation claims. Consequently, the FCA now provides that “[a] civil action under [§ 3730(h) ] may not be brought more'than 3 years after the date when the retaliation occurred.” 31 U.S.C. § 3730(h)(3). The question for the court, one of first impression in the Ninth Circuit, is whether the new FCA limitations period should apply retroactively to Berglund’s retaliation claim.

It appears only a handful of courts have addressed the retroactivity question in this context, ie., whether the statute should be applied retroactively even though the amendment was not in effect either at the time Berglund’s cause of action accrued or at the time he filed this action. See Dyer v. Raytheon, No. 08-10341-DPW, 2011 WL 3294489 (D.Mass. July 29, 2011) (court declines to “embark on a discussion whether the new limitations period in the DoddFrank Act applies ... because application of the federal or a state statute of limitations” resulted in same outcome); Saunders v. District of Columbia, 789 F.Supp.2d 48 (D.D.C.2011) (in dicta court indicates Congress’ specification of the applicable statute of limitations in the DoddFrank Act obviates the need to resort to the “borrowing” doctrine); Lindsay v. Technical Coll. Sys. of Georgia, No. 1:09-CV-2133-JEC, 2011 WL 1157456, at *6 (N.D.Ga. Mar. 29, 2011) (court declines to resolve the issue on the merits); Riddle v. DynCorp Int’l Inc., 733 F.Supp.2d 743, 747-48 (N.D.Tex.2010) (court summarily concludes the FCA limitations period does not apply because of § 4 statement that it is intended to take effect one day after its passage). But see Pezza v. Investors Capital Corp., 767 F.Supp.2d. 225 (D.Mass.2011) (provision of Dodd-Frank Act amending the whistleblower protection set forth in the Sarbanes-Oxley Act by banning pre-dispute arbitration agreements applies to conduct that arose prior to its enactment).

In Chenault, the Ninth Circuit addressed the effect of an amendment to the Civil Rights Act of 1964 that extended the statute of limitations on previously time-barred claims. A postal worker brought suit against his employer for constructively discharging him from his position by failing to provide him with a reasonable accommodation for his handicap under the Rehabilitation Act of 1973. 37 F.3d at 536. The employee did not file a failure-to-accommodate claim within thirty days of the final administrative decision, as required by the statute at that time, and the district court ruled his claim was time-barred. Id. at 536-37.

While his constructive discharge claim was pending, Congress extended from thirty to ninety days the time in which a plaintiff may file suit after a final administrative decision is rendered. Id. at 537. The employee in Chenault argued his failure-to-accommodate claim was revived under the newly enacted statute of limitations. Id. The Ninth Circuit held that to apply the new statute of limitations retroactively would “alter the substantive rights” of a party and “increase a party’s liability,” as the party would be “forced to defend an action that was previously time-barred.” Id. at 537, 539. Simply put, “a newly enacted statute that lengthens the applicable statute of limitations may not be applied retroactively to revive plaintiffs claim that was otherwise barred under the old statutory scheme.” Id. at 539.

In, Hughes Aircraft Co. v. United States, 520 U.S. 939, 950-52, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997), a case involving the retroactive application of an amendment to the FCA, the Supreme Court indicated its approval of the Ninth Circuit’s holding in Chenault. As stated above, the FCA permits suits by private parties on behalf of the United States against anyone who submits a false claim to the government. 31 U.S.C. § 3730(b). The provision at issue permitted qui tarn actions to proceed based on information already in the government’s possession. Hughes Aircraft, 520 U.S. at 945-46, 117 S.Ct. 1871. The parties agreed if the amendment did not apply, plaintiffs claims were barred. Id. at 945, 117 S.Ct. 1871. In comparing its case to the circumstances in Chenault, the Court stated “[t]he [newly-enacted] amendment would revive that action, subjecting [defendants] to previously foreclosed ... litigation, much like extending a statute of limitations after the pre-existing period of limitations has expired impermissibly revives a moribund cause of action.” Id. at 950, 117 S.Ct. 1871 (citing Chenault, 37 F.3d at 537).

Although, the present action is distinguishable because the retroactive application of the limitations period set forth in § 3730(h)(3) would not require Boeing to defend a previously time-barred claim, absent controlling authority, the court declines to apply § 3730(h)(3) here. Instead, after a careful review of the parties’ respective arguments regarding the applicable limitations period for Berglund’s § 3730(h) claim, and the Supreme Court’s direction in Graham, the court concludes Oregon’s two-year catch-all limitations period, see Or. Rev. Stat. § 12.110(1), applicable to state law claims for wrongful discharge, applies to Berglund’s retaliation claim under the FCA. See Graham, 545 U.S. at 419 and n. 3, 125 S.Ct. 2444. (“[W]e borrow the most closely analogous state time limit absent an expressly applicable one.... The likely analogous state statutes of limitations virtually all start to run when the cause of action accrues — in retaliation actions, when the retaliatory action occurs.” (citing, among others, Or.Rev. Stat. § 12.110.(1)).

The record in this case establishes Berglund filed a Motion for Leave to File a Second Amended Complaint to allege a § 3730(h) claim against Boeing on April 30, 2004. The motion was granted on May 4, 2004, and Berglund filed the SAC on May 17, 2004. Thus, the limitations period for Berglund’s retaliation claim was tolled on April 30, 2004, upon filing the motion for leave to amend accompanied by the proposed amended complaint. See Wells Fargo Bank, N.A. v. Renz, No. C. 08-02561-SBA, 2011 WL 97649, *8 (N.D.Cal. Jan. 12, 2011) (“Plaintiff, however, filed its motion for leave to file the TAC on September 8, 2009, which, based on the face of the TAC, is within the limitations period.”)

II. Tolling Date for the Two-Year Limitations Period

Nevertheless, Berglund makes several arguments in support of his contention that none of the alleged retaliatory acts are time-barred, even under the Oregon two-year catch-all period. First, Berglund maintains his retaliation claim was filed initially in the First Amended Complaint in Biron and Berglund on February 4, 2002, and preserved for this case. Alternatively, Berglund insists the Oregon Savings Statute, Or.Rev.Stat. § 12.020, applies to revive his § 3730(h) claim. Finally, Berglund contends Boeing engaged in an ongoing policy of discrimination intended to discourage him from employment at Boeing and, as such the continuing violation doctrine applies. The court will consider each of these arguments in turn.

A. Consolidation of Cases

A First Amended Complaint (“FAC”) alleging a violation of § 3730(h) by Boeing against Berglund was filed in the Biron and Berglund case on February 4, 2002. The Complaint in this case was filed on February 15, 2002, while the Biron and Berglund matter was pending in another court in this district. See United States ex rel. Biron and Berglund, No. 01-163-KI (voluntary dismissal signed on May 13, 2004 (docket #40)). As such, Berglund contends he was barred by the prohibition on claim splitting from pleading a retaliation claim in this case and, consequently, did not include a § 3730(h) claim when the present case was filed. Rather, Berglund included that claim in this case only after a voluntary dismissal of the Biron and Berglund matter. Thus, the court must resolve the threshold question of which filing date applies to Berglund’s § 3730(h) claim here, i.e., the date the limitations period was tolled for that claim.

The statute of limitations tolls “when the complaint is filed.” Or. Rev. Stat. § 12.020(1); Baker v. City of Lakeside, 343 Or. 70, 72, 164 P.3d 259 (2007). The same applies in an action to enforce a federally created right. See Henderson v. United States, 517 U.S. 654, 657 n. 2, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996); Hoffman v. Halden, 268 F.2d 280, 302 (9th Cir.1959); rev’d on other grounds, Cohen v. Norris, 300 F.2d 24 (9th Cir.1962). As stated above, Boeing insists Berglund first filed his retaliation claim in this case on May 17, 2004, and thus the limitations period is fixed at May 17, 2004. (Def.’s Reply 2.) Conversely, Berglund contends the court should “view the effective date of the retaliation claim in this matter as February 11, 2002.” (Pl.’s Opp. Summ. J. 10.)

The record in Biron and Berglund reveals that Berglund first filed a § 3730(h) claim against Boeing on February 4, 2002, in the FAC. See United States ex rel. Biron and Berglund, No. 01-163-KI (docket # 16). Specifically, Berglund alleged:

104. Defendant Boeing has known since shortly after the original complain in this case was filed that a case existed under seal in this Court with the caption “United States ex rel. Biron & Berglund v. The Boeing Company, and Boeing counsel has corresponded with the United State on the premise that the case concerned post-shot peen cleaning of titanium parts. Boeing thus has actual knowledge that Relator Berglund has taken action protected by the False Claims Act, 31 U.S.C. § 3730(h).

105. Notwithstanding this knowledge, Defendant Boeing has taken several retaliatory actions against Relator Berglund. These include imposing disciplinary action on him for requiring that titanium parts be processed by Method II cleaning and, in or about October 2001, stripping him of his long-standing job responsibilities and lowering his retention rating.

(First. Am. Compl. ¶¶ 104-105 (Biron and Berglund), Feb. 4, 2002.)

On June 4, 2002, Biron and Berglund filed under seal a Second Amended Complaint (“SAC”) after learning some of the parts numbers identified in the FAC were incorrect, and some of the parts identified did not come within the purview of Biron and Berglund’s FAC. Thus, the SAC was filed only to reflect the correct part numbers for those numbers wrongly identified, and to omit the parts that fell outside the allegations of the FAC. Berglund’s claim under § 3730(h) remained unchanged, except the words “without limitation” were inserted in ¶ 105. (Second Am. Compl. ¶¶ 104-105 (Biron and Berglund).) The SAC was never served on defendants, but Boeing received a copy of the SAC on June 10, 2002. (Keith Decl. Ex. A.)

Berglund contends he did not file the retaliation claim in the present case because of the bar on claim-splitting, i.e., asserting the same claim against Boeing in two different forums. The prohibition against claim splitting bars subsequent litigation involving the same subject matter. See Single Chip Systems Corp. v. Intermec IP Corp., 495 F.Supp.2d 1052, 1058 (S.D.Cal.2007). This principle is designed “to protect the defendant from being harassed by repetitive actions based on the same claim.” Clements v. Airport Auth. of Washoe County, 69 F.3d 321, 328 (9th Cir.1995). As a matter of policy, claim splitting is prohibited “primarily [ ] to conserve judicial resources and to ensure repose for parties who have already responded adequately to the plaintiffs claims.” Feminist Women’s Health Center v. Codispoti, 63 F.3d 863, 869 (9th Cir.1995) (quotations and citation omitted.).

Once the government determined it would not intervene in the qui tarn action filed by Biron and Berglund, relators sought to dismiss the entire action, except for Berglund’s § 3730(h) claim. It is clear from the record in Biron and Berglund that Berglund intended to preserve his § 3730(h) claim and consolidate it with the present case. Indeed, the motion for voluntary dismissal expressly incorporated an attached declaration from relators’ counsel, David J. Hollander. Hollander stated in his declaration: “Plaintiffs wish to dismiss this case on the ground that they do not desire to pursue the claims raised in the Complaint with the exception of the claims for retaliation by Plaintiff Berglund. Berglund’s claims are to be consolidated with another case presently under seal with the court.” (David J. Hollander Decl. (Mot. Dismiss) 1-2, May 3, 2004.) (Emphasis added). Additionally, prior to filing the motion for dismissal, Berglund sought and received an order from this court allowing him to amend his Complaint in this case “to incorporate his retaliation claims in this action.” (Mem. File Second Am. Compl. 5.)

It is clear Berglund attempted to incorporate or consolidate his timely filed retaliation claim in Biron and Berglund into the present qui tarn action filed against Boeing. Unfortunately, however, rather than consolidate the retaliation claim in Biron and Berglund with this case, the court simply dismissed the entire matter without prejudice. See Fed. R. Civ. P. 42(a) (court may consolidate “actions involving a common question of law or fact are pending before the court”); see also Investors Research Co. v. United States District Court, 877 F.2d 777, 777 (9th Cir.1989) (district court has broad discretion to consolidate cases pending in the same district). In so doing, the tolling date for Berglund’s retaliation claim shifted from February 4, 2002 (filing of § 3730(h) claim in Biron and Berglund), to April 30, 2004 (filing of § 3730(h) claim in the present action). Although Berglund asks the court to “find that the Second Amended Complaint in this case incorporated the retaliation claim filed in [Biron and Berglund]”, he cites no authority for the court to create such a novel rule, and the court declines to do so of its own accord.

B. Oregon Savings Statute

Alternatively, Berglund asks this court to apply the Oregon Savings Statute, Or.Rev.Stat. § 12.220, to preserve the original filing date of his § 3730(h) claim. Under certain circumstances, § 12.220 applies to extend the statute of limitations when an action is dismissed. Subsection (1) provides:

Notwithstanding ORS 12.020, if an action is filed with a court within the time allowed by statute, and the action is involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action .... the plaintiff may commence a new action based on the same claim or claims against a defendant in the original action if the defendant had actual notice of the filing of the original action not later than 60 days after the action was filed.

Or.Rev.Stat. § 12.220(1). Further, subsection (2) of § 12.220 provides, if § 12.220(1) does apply, a party has 180 days after the judgment in the first action is entered in which to file a new action. Or.Rev.Stat. § 12.220(2).

Boeing challenges Berglund’s reliance on the Oregon Savings Clause and argues the statute is simply inapplicable because Berglund admits he voluntarily dismissed the Complaint in Biron and Berglund. See Pulido v. United Parcel Serv. Gen. Serv. Co., 31 F.Supp.2d 809, 816 (D.Or.1998). The court disagrees. Biron and Berglund’s counsel voluntarily dismissed the qui tam action and Biron’s claims for retaliation. However, he expressly exempted Berglund’s retaliation claim from a voluntary dismissal. The fact the claim was ultimately dismissed without prejudice does not alter Berglund’s clearly stated intent to preserve prosecution of that claim and, thus, dismissal of Berglund’s § 3730(h) should be viewed as involuntary. As such, the Oregon Savings Statute should apply to fix the filing date of Berglund’s § 3730(h) claim. Moreover, Berglund filed a new action based on the same claim against Boeing, a defendant in the original action, within the 180 days required by §§ 12.220(2).

In sum, pursuant to the Oregon Savings Clause, Berglund tolled the limitations period for his § 3730(h) claim with the filing of the FAC in Biron and Berglund on February 4, 2002. Boeing admits that every alleged incidence of retaliation occurred in April 2001 and later. (Defs. Reply 4.) Boeing concedes if the date of the retaliation claim does relate back to early 2002, Berglund “would not face a substantial time-bar.” (Def.’s Mem. Summ. J. 10.) Finally, the court notes Boeing received actual notice of Berglund’s retaliation claim by at least June 2002. Nor does Boeing allege it will suffer prejudice if that claim survives a statute of limitations challenge. Although allegations have been added over the years, Berglund’s claim against Boeing is unchanged; namely, Boeing retaliated against him after learning of the qui tam action in February 2001. Further, under any reading of the applicable limitations period, Boeing must still defend charges it retaliated against Berglund for engaging in protected activity.

C. Continuing Violation Doctrine

Alternatively, Berglund contends all of the allegations of his retaliation claim are timely under the continuing violation doctrine. Specifically, Berglund argues Boeing “engaged in a series of acts to accomplish a specific retaliatory goal — separating [ ] Berglund from their employ.” (PL’s Opp. Summ. J. 17.) Further, Berglund maintains Boeing “engaged in a patient but concerted effort that culminated in his layoff in September 2003.” (PL’s Opp. Summ. J. 17.) As such, Berglund relies on the continuing violation doctrine to argue his claim is timely. See Gutowsky v. County of Placer, 108 F.3d 256, 259-60 (9th Cir.1997).

Under certain circumstances, the continuing violation doctrine permits an employee to file suit based upon events occurring outside the applicable limitations period. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (discussing the continuing violation doctrine for Title VII claims). Prior to the Supreme Court’s 2002 decision in Morgan, plaintiffs, could invoke the continuing violation doctrine by showing a series of related acts, one or more of which fell within the limitations period, or a systemic policy or practice of discrimination before and during the limitations period. See Gutowsky, 108 F.3d at 259. However, in Morgan, the Supreme Court invalidated the related acts method of showing a continuing violation under Title VII, reasoning that discrete discriminatory acts are not actionable if time-barred, even if they are related to acts alleged in timely filed charges. 536 U.S. at 113, 122 S.Ct. 2061. The Court held that “each discrete discriminatory act starts a new clock for filing charges alleging that act” so that discriminatory “termination, failure to promote, denial of transfer, or refusal to hire” are examples of actions that constitute “discrete discriminatory acts” and therefore are not subject to the continuing violation doctrine. Id. at 113-14, 122 S.Ct. 2061. In contrast, the Court found a hostile work environment would support the application of the continuing violation doctrine because such a claim “is composed of a series of separate acts that collectively constitute one unlawful employment practice.” Id. at 117, 122 S.Ct. 2061.

Berglund does not point to any case in which a court has determined the continuing violation doctrine is applicable to FCA retaliation claims, nor was this court able to find any controlling authority that has addressed this issue. But see Pakter v. New York City Dep’t of Educ., No. 08-7673, 2010 WL 1141128, at *6 (S.D.N.Y. Mar. 22, 2010) (court considers whether the continuing violation doctrine spares plaintiffs otherwise time barred FCA claims, but determines it does not). Regardless, the court need not reach the issue of whether Berglund’s allegations are timely under the continuing violation doctrine because of its ruling above (section II.B) that the Oregon Savings Clause applies to Berglund’s retaliation claim. Finally, even assuming that doctrine does not apply to the circumstances here, the law is clear that Berglund may capture events outside the limitations period as evidence to prove timely his timely retaliatory lay-off claim. See Morgan, 536 U.S. at 113, 122 S.Ct. 2061 (“[T]he statute [does not] bar an employee from using the prior acts as background evidence in support of a timely claim.”)

At oral argument, it was clear Berglund’s claim for retaliation against Boeing is grounded primarily in two discretionary decisions by Boeing that positioned Berglund for a mandatory, i.e., non-discretionary, lay-off under the relevant collective bargaining agreement (“CBA”). The first of two discretionary employment actions taken by Boeing against Berglund was a downgrade in Berglund’s job classification. Specifically, in March 2002, Boeing informed Berglund his Level 4 Manufacturing Engineer/Planner position was being eliminated and he could either choose to be downgraded to a Level 3 Manufacturing Engineer/Planner or be laid off. Berglund accepted the downgrade from a Level 4 to a Level 3 Engineer. Boeing transferred the responsibilities of Level 4 Manufacturing Engineer/Planners to a new job classification titled “Level 4 Product Manager.” Two of Berglund’s peers, Toby Tyler and Dave Sasseen, were transferred from their positions of Level 4 Manufacturing Engineer/Planner to the new classification of Level 4 Product Manager. Additionally, two other Boeing employees, Chris Carpenter, a Level 3 Manufacturing Engineer/Planner and, Rich Kummerle, a Level 4 Tool Designer, were promoted to the newly created Level 4 Product Manager. (Carpenter was upgraded from a Level 3 to a Level 4 in the process.) This down grade in Berglund’s job classification occurred in March 2002, approximately one month beyond the two-year limitations period for Berglund’s § 3730(h) claim.

The second discretionary action taken by Boeing was a downgrade in Berglund’s retention rating from R2 to R3, based on an unprecedented annual review by Hanna in December of 2002. As set forth above, in August 2002, Hanna became Berglund’s manager. Berglund admits he received a “scathing review” from Hanna at the end of 2002, but charges Hanna’s review was not constructive and was a personal attack intended to lower Berglund’s morale and encourage him to quit his position at Boeing. Further, Berglund claims Hanna’s 2002 review was not in Boeing’s usual format, which would allow him an opportunity to address the criticisms and provide his thoughts and feedback Berglund claims neither Hanna nor any previous supervisor ever counseled or disciplined him for the type of behavior set out in the “Customer Comments re: Cliff Berglund Performance” document. Following the November 2002 review by Hanna, Berglund’s retention rating was downgraded from an R2 to and R3. (Berglund Deck ¶¶ 35-38; Hanna Deck Ex. C.)

On July 19, 2003, Boeing issued Berglund a WARN advance notice of termination effective September 19, 2003. (Berglund Dec. ¶40.) The parties agree that once a retention rating is assigned, the lay-off procedures are government by the CBA and are “mechanical” in nature. Nor is there any evidence in the record the implementation of the CBA lay-offs was wrongful. Rather, Berglund insists that the discretionary act of lowering his job classification placed him in a job vulnerable to lay-off, combined with a second discretionary act of dropping his retention rating from R2 to R3, made a lay-off under the CBA inevitable. Thus the job classification, the retention rating, and the lay-off purportedly combined to serve Boeing’s purpose of terminating Berglund’s employment. Berglund is permitted to rely upon these allegations to establish Boeing’s layoff decision in September 2003, a timely discriminatory act, was in retaliation for Berglund filing the qui tam action.

III. Berglund’s Claim Under 31 U.S.C. § 3730(h)

Berglund brings his retaliation claims under 31 U.S.C. § 3730(h), the FCA’s whistleblower provision. This provision allows employees to recover if they have been “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment ... because of’ their lawful acts done in furtherance of efforts to stop false claims on the government. 31 U.S.C. § 3730(h). An FCA retaliation claim requires proof of three elements: “1) the employee must have been engaging in conduct protected under the Act; 2) the employer must have known [ ] the employee was engaging in such conduct; and 3) the employer must have discriminated against the employee because of [his] protected conduct.” Hopper, 91 F.3d at 1269; see also Mendiondo v. Cen tinela Hosp. Medical Center, 521 F.3d 1097, 1103 (9th.Cir.2008); Spencer v. Lake Oswego Little League, No. 09-1024-MO, 2009 WL 4729939, *1 (Dec. 2, 2009).

The Ninth Circuit has not expressly determined whether the burden-shifting analysis utilized by the courts in analyzing claims under Title VII of the Civil Rights Act also applies to whistle-blowing claims under the FCA. However, every court to address this issue directly has concluded an affirmative defense is available to the employer. See, e.g., Balmer v. HCA, Inc., 423 F.3d 606, 614 (6th Cir.2005), abrogated on other grounds by Fox v. Vice, — U.S.-, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011); U.S. ex rel. Karvelas v. Melrose-Wakefield Hospital, 360 F.3d 220, 235 (1st Cir.2004); Dookeran v. Mercy Hospital of Pittsburgh, 281 F.3d 105, 107 (3rd Cir.2002); Norbeck v. Basin Elec. Power Co-op., 215 F.3d 848, 850-51 (8th Cir.2000); U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 736 n. 4 (D.C.Cir.1998). See also Moore v. Cal. Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838, 847-48 (9th Cir.2002) (conduct does not constitute “retaliation” under the FCA unless it would be sufficient to constitute an adverse employment action under Title VII). Moreover, the legislative history clearly indicates Congress intended an inquiry similar to other whistle blower statutes. The Senate Report for the False Claims Amendments Act of 1986 states, in part:

Section [3730(h) ] provides relief only if the whistleblower can show by a preponderance of the evidence that the employer’s retaliatory action resulted ‘because’ of the whistleblower’s participation in a protected activity. Under other Federal whistleblower statutes, the ‘because’ standard has developed into a two-pronged approach. One, the whistle-blower must show the employer had knowledge the employee engaged in ‘protected activity’ and two, the retaliation was motivated, at least in part, by the employee’s engaging in protected activity. Once these elements have been satisfied, the burden of proof shifts to the employer to prove affirmatively that the same decision would have been made even if the employee had not engaged in protected activity.

S.Rep. No. 99-345, at 35, reprinted in 1986 U.S.C.C.A.N. 5266, 5300.

Thus, the court will apply the Title VII burden-shifting methodology to evaluate Berglund’s claims here. Accordingly, if Berglund establishes a prima facie case for retaliation under the FCA, the burden of production shifts to Boeing to articulate a legitimate, non-retaliatory explanation for the adverse employment action. See, e.g., Dawson v. Entek Intern., 630 F.3d 928, 936 (9th Cir.2011). If Boeing successfully rebuts the inference of retaliation, the burden of production shifts back to Berglund to show Boeing’s proffered explanation is merely a pretext for impermissible retaliation. Id.

Boeing insists Berglund’s case is “fatally flawed.” According to Boeing, Berglund has failed to establish Boeing took action against him because of his FCA activities. Next, Boeing maintains there is ample evidence Berglund’s lay-off and the earlier decision to lower his retention rating would have occurred in any event, and there is no evidence to indicate Boeing’s proffered reasons are pretext.

A. Berglund’s Prima Facie Showing

There can be no dispute Berglund was engaging in conduct protected under the Act when he filed the qui tarn actions against Boeing alleging Boeing knowingly violated 31 U.S.C. § 3729. See, e.g., Yesudian, 153 F.3d at 739 (“protected conduct element of such a [3730(h) ] claim does not require the plaintiff to have developed a winning qui tarn action before he is retaliated against”); 31 U.S.C. § 3730(h) (plaintiff must have engaged in “acts ... in furtherance of an action under this section”). Additionally, there is ample evidence in the record that Boeing knew Berglund was engaging in protected conduct under the FCA as early as February 2001. (Berglund Decl. ¶¶ 7-8; Payette Decl. ¶¶ 2-4.) Thus the remaining prima facie inquiry is whether Berglund has presented competent evidence Boeing discriminated against him because of his whistle-blowing.

As discussed above, Berglund relies primarily on a series of three events to show retaliation:

□ On or about March 6, 2002, Berglund was informed his job title of Level 4 Manufacturing Engineer/Planner was to be eliminated and he had the choice of a downgrade to a Level 3 Manufacturing/Engineer Planner or termination, to which Berglund chose the down grade. (Berglund Decl^ 27.)

□ At the time of Berglund’s downgrade to Level 3, there were two other individuals at Boeing Port