the FCA in his conversations with hospital officials. 186 The district court noted these efforts were “at least one step removed from the typical ‘efforts’ involving complaints of fraud,” but found them sufficient at the pleading stage. In Gatti v. Granger Medical Clinic, P.C. , the plaintiff compliance officer offered evidence of an array of whistleblowing actions, most of which the district court held to be protected, including reporting about the legality of billing practices outside her normal chain of command and telling her supervisor she filed a qui tam action. 187 But, notably, the district court also held that the compliance officer’s reference to a qui tam attorney in a subsequent conversation with the clinic’s CEO was not protected conduct. The plaintiff had referred to a qui tam attorney only after being told of the clinic’s reorganization plans and being reassigned to a different supervisor, and when the CEO asked her to explain the basis for a qui tam action, the plaintiff refused. Furthermore, the plaintiff failed to show evidence connecting the reorganization and new supervisor to the alleged fraudulent billing practices. Thus, the district court interpreted the reference to a qui tam attorney as merely an attempt to avoid the negative consequences of refusing her employer’s explicit direction – not protected activity. The district court in Mehlman v. Cincinnati Children’s Hosp. Med. Ctr. likewise limited what kind of actions constitute “other efforts” to stop an FCA violation. 188 A physician was suspended after raising concerns that another physician was performing allegedly unnecessary and risky procedures. The district court granted the employer hospital’s motion to dismiss the retaliation claim, reasoning that allegations that the plaintiff complained about unnecessary procedures out of concern for the health outcomes and safety of patients – without any reference to fraud – are insufficient to plead protected activity. Employer Notice To satisfy the second element of a prima facie FCA retaliation claim, an employee must show that the employer knew about the employee’s protected activity because, logically, there can be no retaliation without such notice. The district court in Vaughn v. Harris County Hosp. Dist. examined the notice requirement in denying an employer’s motion to dismiss where the employee allegedly made four complaints about fraud to his employer. 189 While observing that employers generally will not have notice of protected activities that are consistent with the employee’s job duties, the district court reasoned that internal complaints can be considered sufficient notice where the complaints are put in terms of fraud, go outside of the normal chain of command, or “otherwise objectively demonstrate[] the possibility of qui tam litigation.” The district court found that the defendant was on notice of possible litigation because the plaintiff pleaded that: (1) his job duties did not include his protected activities; (2) his protected activities involved reporting fraud to the compliance committee and other people outside the normal chain of command; and (3) he characterized his complaints as fraud on the government.
By contrast, in U.S. ex rel. Raney v. Amedisys, Inc. , the district court granted an employer’s motion to dismiss, finding that the employer was not on notice of protected activity because the employee did not allege that her protected activity implicated false billing to Medicare and, rather, alleged generally that “everyone involved kn[ew] of the fraud.” 190 Without allegations that the employee clued the employer into the possibility of FCA liability, the district court held that the complaint could not advance past the pleading stage. Likewise, in U.S. ex rel. Manieri v. Avanir Pharm., Inc. , the district court granted an employer’s motion to dismiss where the employee did not allege that he affirmatively reported fraud to his employer and, instead, relied on threadbare allegations that his employer should have known that his concerns related to an allegedly illegal kickback scheme. 191 Adverse Action Because of Protected Activity Finally, an FCA retaliation plaintiff must show a causal connection between an adverse employment action and the protected activity. This element consists of two discrete inquiries: (1) whether the employee actually suffered an adverse employment action; and (2) whether the adverse employment action occurred because of the protected activity. The Sixth Circuit explored the baseline of an adverse employment action in El-Khalil v. Usen , affirming the district court’s grant of summary judgment to the employer, a medical center, and holding that a negative recommendation on staffing privileges is not, in and of itself, an adverse employment action. 192 There, the physician’s staffing privileges had lapsed, and in reviewing his application for reappointment, the employer’s Medical Executive Committee voted unanimously to recommend against his reappointment. The Sixth Circuit articulated two reasons that the recommendation was not an adverse employment action: (1) the employee did not have staffing privileges before the recommendation was issued, so there was no significant change to his employment status; and (2) only the medical center’s governing body could approve or deny staffing privilege applications, meaning that the committee’s recommendation was not an official company act. Regarding the standard to demonstrate causation, several courts concluded a plaintiff must prove that the adverse action was a “but-for” cause of the protected activity, not merely that the protected activity was one motivating factor. For example, in Raney , the district court dismissed the retaliation claim because the employee failed to plead any facts plausibly alleging that her employer would not have terminated her if she had not engaged in protected activity. 193 The district court noted that the plaintiff’s allegations about not receiving a reasonable explanation for termination and possibly being terminated because of her protected activity were insufficient to show “but-for” causation. Yet, in U.S. ex rel. Rehfeldt v. Compassionate Care Hospice Grp., Inc. , the district court held that, at the motion to dismiss stage, the “but-for” standard is not onerous and can be met by showing “that the protected activity and the negative employment action are not completely unrelated.” 194 Further, in U.S. ex rel. Barrick v. Parker-Migliorini Int’l, LLC , another district court explained that the “but-for” test does not require the protected activity to be the
190 2021 WL 4458874 (N.D. Ala. Sept. 29, 2021). 191 2021 WL 857102 (N.D. Ohio Mar. 8, 2021). 192 2021 WL 4621828 (6th Cir. Oct. 7, 2021). 193 2021 WL 4458874 (N.D. Ala. Sept. 29, 2021). 194 2021 WL 2229057 (M.D. Ga. June 2, 2021).
186 2021 WL 2826716 (M.D. Pa. July 7, 2021). 187 2021 WL 1171719 (D. Utah Mar. 29, 2021). 188 2021 WL 3560571 (S.D. Ohio Aug. 11, 2021). 189 2021 WL 4464190 (S.D. Tex. Aug. 4, 2021).
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