Helane Miller v. Abbott Laboratorie
Filing
Per Curiam OPINION filed: We AFFIRM the judgment of the district court, and DENY as moot Miller s motion to take judicial notice [5409476-2], decision not for publication. John M. Rogers, Circuit Judge; Helene N. White (dissenting), Circuit Judge and Joseph M. Hood, U.S. District Judge (Eastern District of Kentucky, sitting by designation).
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NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0263n.06
FILED
No. 15-5762
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HELANE MILLER,
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)
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)
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Plaintiff-Appellant,
v.
ABBOTT LABORATORIES,
Defendant-Appellee
May 12, 2016
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF KENTUCKY
BEFORE: ROGERS and WHITE, Circuit Judges; and HOOD, District Judge.
PER CURIAM. Plaintiff Helane Miller appeals the grant of summary judgment in favor
of Abbott Laboratories (“Abbott”) on her False Claims Act (“FCA”) retaliation claim. The
district court held that Miller did not present a genuine dispute of material fact whether she
engaged in protected activity. Because Miller did not have an objectively reasonable belief that
she was acting to stop a violation of the FCA, we AFFIRM.
I.
A. Miller’s Employment With Abbott
Miller worked at Abbott for more than twelve years in various positions prior to the
termination of her employment. She was hired in September of 1999 as an account executive in
Abbott’s Managed Care Division. She was laid off in November 2008 and rehired in December
2009 as a sales excellence manager in the Pharmaceutical Product Division, where one of her
major responsibilities was identifying potential ethical violations by sales representatives. Miller
The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District of Kentucky,
sitting by designation.
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was laid off again in January 2011 and rehired in November 2011 as a sales representative for
the Home Health/Oncology department in Abbott’s Nutrition Division (“Nutrition sales
representative” for “Abbott Nutrition”).
As a Nutrition sales representative, Miller was
supervised by district manager Bridget Bailey, who reported to Laurence Carbone, a divisional
vice president of sales for Pediatric, Home Health, and Oncology.
Abbott Nutrition sells liquid nutritional supplements such as Ensure, Glucerna, and
Juven, and equipment and liquid nutrition for tube-feeding patients; it does not sell
pharmaceutical products. These nutritional products are used to treat patients with nutritional
deficiencies due to old age, cancer, or other illnesses. They are over-the-counter products not
reimbursed by Medicare or Medicaid as a matter of course, but only if authorized by a physician.
As a Nutrition sales representative, Miller’s performance was judged in part by how
many protocols were implemented by healthcare providers such as home-health agencies1 and
oncology clinics. A protocol is a process, pathway, or set of procedures that a healthcare
provider creates to improve patient outcomes by identifying and improving nutrition risks in
patients. Protocols do not bind the providers to recommend a particular Abbott product, but
Abbott’s expectation was that the providers would recommend Abbott’s products to patients
pursuant to the protocols, who would like them and purchase them.
In the fall of 2012, Bailey created a competition for her sales representatives to create and
implement the best original protocol, with the winner receiving $100. On October 2, Miller
called Karen Curl-Stepney, a customer and former Abbott colleague, who was an executive
director at Evangelical Homes of Michigan (“Evangelical”),2 to discuss implementation of a
1
A home-health agency is an agency that provides skilled nursing care to patients in their home. Homehealth agencies are often reimbursed by Medicare or Medicaid.
2
Evangelical operates its own communities and also provides home care services for the elderly. Ninetyeight percent of Evangelical’s customers were on Medicare during Curl-Stepney’s tenure there.
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protocol. According to Miller, Curl-Stepney said that she was aware of the contest because she
had spoken with Tom Berry, another Nutrition sales representative reporting to Bailey, when
Berry met with Curl-Stepney to provide samples of Abbott Nutrition products. According to
Miller, Curl-Stepney stated “Tom told me if I would get cracking on this and do this for him, that
he’d give me half the bonus money, $50.”3 (R. 40-2: Miller Dep., PID 362.) Miller’s phone call
with Curl-Stepney ended abruptly after Miller told Curl-Stepney that she wished Curl-Stepney
had not told her that.
Although Miller knew that Curl-Stepney would not accept the payment from Berry,
Miller contacted Bailey to report Berry’s offer. Bailey responded, “Oh, shit” when informed of
the payment offer, and Miller stated that she would call the Office of Ethics and Compliance
(“OEC”) and file a complaint because this was “quid pro quo.” (Id. at PID 364.) Miller asserted
that the offer had to be reported to the OEC, but Bailey asked that Miller not do so until Bailey
could speak with Carbone. After speaking with Carbone, Bailey told Miller that Bailey would
make the complaint to the OEC and then confront Berry about the payment offer later that week,
in addition to contacting Curl-Stepney.
Miller objected to Bailey’s initiating her own
investigation, asserting that it was improper and would cause tension with Miller’s coworkers,
and reiterated that Berry’s offer was a “serious infraction.” (Id. at PID 365, 366.) Curl-Stepney
then called Miller back and stated that she did not believe Berry was serious with the offer and
expressed concern that her employer might find out about the investigation.
On October 3, Bailey reported the incident to the OEC, which opened an investigation.
Miller asserts that she also notified the OEC about Berry’s offer and her concerns about Bailey
3
According to Curl-Stepney, she told Berry that she was working on a protocol and Berry “jokingly said
that if the protocol was really good, he might give [Curl-Stepney] ‘a couple bucks.’” (R. 40-10: Curl-Stepney Decl.,
PID 947.) Curl-Stepney did not believe that Berry was offering a bribe or inappropriate payment, and Berry’s joke
did not motivate her actions regarding implementing a protocol. She did not move forward with formulating a
protocol once she learned that her meeting with Berry was the subject of an Abbott investigation.
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confronting Berry. On October 4, Bailey contacted Curl-Stepney and informed her that a new
representative would be assigned to her account. Curl-Stepney told Bailey that she thought
Berry’s offer was made in jest. On October 5, Bailey met with Berry, who denied making the
offer.
The OEC’s investigation closed with inconclusive results because Berry denied making
the offer and Curl-Stepney would not speak with the OEC. Miller had also informed the OEC
that Berry may have been joking. Nonetheless, the OEC found the circumstances suspicious and
required Berry to undergo ethical training. On December 6, 2012, the OEC also coached Bailey
not to reach out to parties involved in an investigation in the future.4
Subsequently, Bailey began documenting problems with Miller’s performance, including
Miller’s failing a required certification exam three times. In September 2013, Abbott terminated
Miller’s employment, citing her poor performance. Miller disputes many of Bailey’s critiques of
her performance that were used to justify the termination, and alleges that Bailey constructed a
false record of Miller’s performance in retaliation for her reporting Berry’s offer to CurlStepney.5
B. Background About Abbott’s and Miller’s Awareness of Federal Laws
In May 2012, Abbott paid $1.5 billion and entered into a Corporate Integrity Agreement
(“CIA”) with the Office of Inspector General of the United States to resolve an investigation into
its off-label promotion of a product. The CIA became effective on October 11, 2012. Miller
understood that the CIA only applied to Abbott’s pharmaceutical product group, but Miller was
4
Bailey was counseled again after Miller filed a report with employee relations in late-January 2013,
complaining that she was unhappy with the dynamic on her team and that Bailey had mismanaged Miller’s report of
Berry’s conduct.
5
Miller filed a motion “to take notice of facts” requesting the court to take notice of evidence that she
argues supports her position that she performed as an adequate Nutrition sales representative in 2013. Because this
evidence is only possibly relevant to causation and pretext, we deny the motion as moot because we do not reach
those issues.
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aware of the CIA and its contents. One of the requirements of the CIA was to establish policies
and procedures to ensure compliance with the FCA and Anti-Kickback Statute (“AKS”), as well
as other federal laws.
Abbott’s Code of Business Conduct acknowledges that many of its customers depend on
Medicare and Medicaid and states that it is committed to full compliance with all federal
healthcare program requirements, including the FCA and AKS. The Code of Business Conduct
also summarized those laws, explaining that the federal AKS “prohibits offering or paying (or
soliciting or receiving) cash or other benefits to induce the purchase, order, or recommendation
of products eligible for payment by a Federal Health Care Program.” It described the FCA as
prohibiting the knowing or reckless submission of false claims to the government, or causing
others to submit false claims.
Accordingly, it cautioned that because many of Abbott’s
customers submit claims for payment to the government, Abbott must follow procedures
“carefully designed to ensure that any information we provide to customers about Medicare or
Medicaid reimbursement for our products is accurate and otherwise proper.” (R. 40-2: Code of
Business Conduct, PID 415.)
C. Procedural History
Miller filed suit against Abbott, alleging retaliation in violation of the FCA, 31 U.S.C.
§ 3730(h), and wrongful discharge under Kentucky law. Miller later amended her complaint to
add a claim of retaliation in violation of the National Defense Authorization Act, 41 U.S.C.
§ 4712 (“NDAA”). Abbott moved for summary judgment on all claims. The district court
granted summary judgment in favor of Abbott on Miller’s federal claims, holding that Miller had
not presented sufficient evidence that she engaged in protected activity under the FCA because
she “failed to establish a nexus or link between the report of the bribe and exposing fraud on the
government,” and that her NDAA claim failed because the CIA went into effect after Miller’s
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report of Berry’s offer and because Miller knew the CIA did not apply to Abbott Nutrition.
(R. 46: Mem. Op. & Order, PID 1803-06.) Having dismissed Miller’s federal claims, the district
court declined to exercise supplemental jurisdiction over the state-law claim and dismissed it
without prejudice. Miller appeals only the grant of summary judgment on her retaliation claim
under the FCA.
II.
This court reviews de novo a district court’s order granting summary judgment. Rudisill
v. Ford Motor Co., 709 F.3d 595, 600 (6th Cir. 2013). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In determining whether the district
court’s grant of summary judgment was proper, the court “must view all evidence in the light
most favorable to the nonmoving party.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868
(6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).
A. FCA Retaliation, In General
The FCA, 31 U.S.C. §§ 3729-3733, prohibits, among other things, any person from
“knowingly present[ing], or caus[ing] to be presented, a false or fraudulent claim for payment or
approval,” and “knowingly mak[ing], us[ing], or caus[ing] to be made or used, a false record or
statement material to a false or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(A)-(B). The FCA
allows the Attorney General or a private person to initiate a civil action alleging fraud on the
government. See 31 U.S.C. § 3730(a)-(b). A private enforcement action under the FCA is called
a qui tam action. U.S. ex rel. Eisenstein v. City of New York, 556 U.S. 928, 932 (2009). To
protect whistleblowers exposing fraud on the government, see McKenzie v. BellSouth
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Telecomms., Inc., 219 F.3d 508, 513 (6th Cir. 2000), the FCA also contains an anti-retaliation
provision:
Any employee, contractor, or agent shall be entitled to all relief necessary to make
that employee, contractor, or agent whole, if that employee, contractor, or agent is
discharged, demoted, suspended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of employment because of
lawful acts done by the employee, contractor, agent or associated others in
furtherance of an action under this section or other efforts to stop 1 or more
violations of this subchapter.
31 U.S.C. § 3730(h)(1).
In the absence of direct evidence of retaliatory motive, as here, “[t]he familiar
McDonnell-Douglas burden-shifting framework applies to retaliation claims.” Scott v. Metro.
Health Corp., 234 F. App’x 341, 346 (6th Cir. 2007). To establish a prima facie case under
§ 3730(h), Miller must prove that she engaged in a protected activity; her employer knew she
engaged in protected activity; and the employer discharged or otherwise discriminated against
her as a result of the protected activity. McKenzie, 219 F.3d at 514. “If a plaintiff establishes a
prima facie case of retaliation, the defendant may rebut the presumption of retaliation by
asserting a legitimate, non-[retaliatory] reason for its actions. The plaintiff must then show by a
preponderance of the evidence that the employer’s proffered reason for the employment action is
pretextual.”
Balmer v. HCA, Inc., 423 F.3d 606, 614 (6th Cir. 2005) (citations omitted),
abrogated on other grounds by Fox v. Vice, 563 U.S. 826 (2011).
B. Protected Activity
Miller argues that she engaged in protected activity when she reported Berry’s offer to
split the protocol prize money with Curl-Stepney because it was an attempted bribery of a
government healthcare provider in violation of the AKS, 42 U.S.C. § 1320a-7b, which could
have led to a violation of the FCA. Miller’s theory is that Berry’s bribe could have induced
Evangelical to implement a protocol that included Abbott Nutrition products; pursuant to the
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protocol, Evangelical would recommend Abbott Nutrition products and provide patients eligible
for Medicare or Medicaid free samples or coupons for Abbott Nutrition products; the patients
would then purchase Abbott Nutrition products and seek to have Medicare or Medicaid
reimburse a portion of the costs of the products. Miller alleges that this would be a violation of
the FCA because the resulting claim for reimbursement would have been the result of a
kickback. See infra Section II.B.2.
1.
Standard for Protected Activity Under the FCA
In McKenzie, 219 F.3d at 516, this court held that internal reports of fraud may constitute
protected activity so long as they “allege activity with a nexus to a qui tam action, or fraud
against the United States government.” The anti-retaliation section interpreted in McKenzie was
amended in 2009 by expanding the subsection to also protect “other efforts to stop 1 or more
violations of” the FCA, rather than only conduct that was in “furtherance of an action under” the
FCA.6 See Halasa v. ITT Educ. Servs., Inc., 690 F.3d 844, 847 (7th Cir. 2012); see also 155
Cong. Rec. E1295-03, E1300 (June 3, 2009) (statement of Rep. Berman) (“This language is
intended to make clear that this subsection protects not only steps taken in furtherance of a
potential or actual qui tam action, but also steps taken to remedy the misconduct through
methods such as internal reporting to a supervisor or company compliance department and
refusals to participate in the misconduct that leads to the false claims, whether or not such steps
are clearly in furtherance of a potential or actual qui tam action.”). Therefore, pre-amendment
6
The pre-amendment anti-retaliation provision stated the following:
Any employee who is discharged, demoted, suspended, threatened, harassed, or in any
other manner discriminated against in the terms or conditions of employment by his or her
employer because of lawful acts done by the employee on behalf of the employee or others in
furtherance of an action under this section, including investigation for, initiation of, testimony for,
or assistance in an action filed or to be filed under this section, shall be entitled to all relief
necessary to make the employee whole.
31 U.S.C. § 3730(h) (2006).
A slightly different version of the current statute was in effect from March 2010 to July 2010. See JonesMcNamara v. Holzer Health Sys., 630 F. App’x 394, 397 n.3 (6th Cir. 2015).
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case law holding that activity is protected only if it is in furtherance of a potential or actual qui
tam action is no longer applicable. See Jones-McNamara v. Holzer Health Sys., 630 F. App’x
394, 399 (6th Cir. 2015) (“[T]he requirement that conduct could develop into a ‘viable FCA
action’ no longer accurately reflects the statutory language.”). The amended statutory language
also explicitly confirms McKenzie’s recognition that § 3730(h) protects internal reports of, or
other efforts to stop, fraud on the government. See McKenzie, 219 F.3d at 515.
To constitute protected activity, “an employee need not complete an investigation into
potential fraud or uncover an actual FCA violation” because the FCA’s anti-retaliation provision
protects employees while they are merely collecting information about potential fraud. JonesMcNamara, 630 F. App’x at 399 (citing Graham Cty. Soil & Water Conservation Dist. v. U.S. ex
rel. Wilson, 545 U.S. 409, 416, (2005); U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 740
(D.C.Cir.1998)). However, an employee’s activities “must reasonably embody ‘efforts to stop’
FCA violations.” Id. (quoting 31 U.S.C. § 3730(h)). Accordingly, consistent with other circuits,
this court has explained that “although [the plaintiff] need not establish that [the employer]
actually violated the FCA, she must show that her allegations of fraud grew out of a reasonable
belief in such fraud.” Id. at 400; see also Hoyte v. Am. Nat. Red Cross, 518 F.3d 61, 71 (D.C.
Cir. 2008) (holding that employee must have subjective, good-faith belief and objectively
reasonable belief that fraud is being committed against the government); Fanslow v. Chi. Mfg.
Ctr., Inc., 384 F.3d 469, 480 (7th Cir. 2004) (same); Wilkins v. St. Louis Hous. Agency, 314 F.3d
927, 933 (8th Cir.2002) (same); Moore v. Cal. Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838,
845 (9th Cir.2002) (same).
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2.
The Anti-Kickback Statute
The AKS provides criminal penalties for anyone who
knowingly and willfully offers or pays any remuneration (including any kickback,
bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any
person to induce such person-(A) to refer an individual to a person for the furnishing or arranging for the
furnishing of any item or service for which payment may be made in whole or
in part under a Federal health care program, or
(B) to purchase, lease, order, or arrange for or recommend purchasing,
leasing, or ordering any good, facility, service, or item for which payment
may be made in whole or in part under a Federal health care program,
42 U.S.C. § 1320a-7b(b)(2).
“AKS violations can constitute FCA violations where a claim submitted to the
government for reimbursement includes items or services resulting from a violation of the AKS,
or where cost reports submitted to the government for reimbursement include an express
certification that the underlying claims comply with the AKS.” Jones-McNamara, 630 F. App’x
at 400 (citations omitted); see also 42 U.S.C. § 1320a-7b(g) (“[A] claim that includes items or
services resulting from a violation of this section constitutes a false or fraudulent claim for
purposes of [the FCA].”).
“Remuneration” includes “transfers of items or services for free or for other than fair
market value.” 42 U.S.C.A. § 1320a-7a. The Office of the Inspector General for the Department
of Health and Human Services has offered further guidance that items or services of nominal
value are permitted under the AKS because those items or services could not reasonably be
expected to induce a referral. See 68 Fed. Reg. 14245, 14252 (Mar. 24, 2003); 65 Fed. Reg.
24400, 24411 (Apr. 26, 2000). “An important aspect of inducement is that the remuneration be
directed towards an individual or entity in a position to generate Federal health care program
business.”
Jones-McNamara, 630 F. App’x at 401 (internal quotation marks and citation
omitted). “In short, a kickback violation entails 1) remuneration to a person or entity in a
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position to refer Federal health care program patients 2) that could reasonably induce the person
or entity to refer such patients.” Id.
3.
Application to Miller’s Claim
In Jones-McNamara, the plaintiff, a vice president of corporate compliance for the
defendant healthcare-delivery system, began investigating allegations that the defendant’s
dealings with an ambulance company (“Life”) violated the AKS. 630 F. App’x at 395. The
plaintiff was informed that certain ER doctors received embroidered jackets from Life; that the
defendant’s employees routinely called Life over a competitor that was closer to the defendant’s
facilities; and that Life had provided free hotdogs and hamburgers to the defendant’s employees
at health and wellness fairs. Id. The plaintiff reported this activity to her supervisors, believing
that these actions violated the AKS and FCA because the defendant might have billed Medicare
for Life’s ambulance services.
Id. at 395-96.
The defendant terminated the plaintiff’s
employment shortly thereafter. Id. at 396.
This court held that the plaintiff failed to establish a genuine dispute of material fact
about whether her belief that the defendant’s employees accepted remuneration as an inducement
to refer patients to Life was objectively reasonable. Id. at 404. First, the court reasoned that the
plaintiff had only identified two gifts delivered to the defendant’s employees—a single jacket
valued at $23.50 and some hotdogs and hamburgers—which could not induce a reasonable
person to prefer one provider over another. Id. at 401-02. Second, the court explained that the
plaintiff “did not identify a single employee with authority to make referrals to Life, let alone
one who also attended one of [the defendant’s] employee wellness fairs and consumed a Lifesponsored hotdog or hamburger.” Id. at 402. Thus, because the plaintiff could not meet her
burden of demonstrating the reasonableness of her belief that the defendant violated the AKS,
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she could not show that “she had a reasonable belief that [the defendant] presented [false claims]
or caused false claims to be presented in violation of the FCA.” Id. at 404.
Like the plaintiff in Jones-McNamara, Miller has failed to establish a genuine dispute of
material fact about whether she engaged in protected activity. Miller testified that she knew at
the time she made her report that Curl-Stepney would never accept Berry’s offer. Thus, Miller
did not have an objectively reasonable belief that an FCA violation would occur, because she
knew that Curl-Stepney would not be induced by the offer of $50 to implement a protocol
recommending Abbott’s products, and therefore could not reasonably believe that fraudulent
Medicare or Medicaid claims would be submitted to the government as a result of an AKS
violation involving Berry’s bribe. See id. at 401-02; see also McKenzie, 219 F.3d at 516
(“Although internal reporting may constitute protected activity, the internal reports must allege
fraud on the government.”).
Miller argues that although she knew that Curl-Stepney in particular would not accept
Berry’s offer, she could still reasonably believe that reporting Berry’s conduct would stop future
bribes from being made to less scrupulous medical providers. We need not determine whether
this theory saves Miller’s claim because Miller’s testimony does not support that she held this
belief. Nor does she point to any evidence supporting that Berry offered compensation to
medical providers in other contexts. Rather, Miller testified that she believed Berry’s bribe was
a violation of the FCA because any offer of anything of value to a customer violates the FCA if it
exceeds the limits provided in Abbott’s policies regarding gifts to, meals for, and entertainment
of customers. Miller’s belief that any offer of anything of value violates the FCA is not
objectively reasonable because it does not link Berry’s offer to the inducement of a healthcare
provider’s recommendation of Abbott Nutrition products to federal-program patients, nor to any
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claims being submitted to the government by those federal-program patients.7 Because there is
nothing in the record suggesting that Miller objectively believed she acted to stop future FCA
violations by Berry, Miller has failed to present a genuine dispute of material fact whether she
engaged in protected activity.
Finally, to the extent Miller argues that public-policy considerations support reading into
the AKS an anti-retaliation provision that would protect her report of Berry’s offer, she has not
preserved this argument for appeal because she failed to raise it below in support of her FCA
retaliation claim, and this new theory would convert her FCA retaliation claim into an entirely
different claim.
Further, to the extent Miller argues that public-policy considerations and
Supreme Court case law finding implied retaliation provisions in statutes require that her report
of Berry’s offer be protected under the FCA, we note that the FCA does provide protection from
retaliation and there is no need to find an implied remedy. However, the FCA does not purport
to protect all reports of wrongdoing, only those that are in furtherance of a qui tam action or
other efforts to stop a violation of the FCA.
Given our conclusion that Miller has failed to present a genuine dispute of material fact
about whether she engaged in protected activity, we need not address the other prongs required
to establish a prima facie case or whether Abbott’s proffered reasons for termination were
pretextual.
7
We are not suggesting that an employee needs to articulate her belief about an FCA violation in a manner
that falls neatly into the legal standards. But the crux of any FCA violation is that a false or fraudulent claim is
submitted to the government. Here, Miller’s testimony established that no claim would be submitted to the
government as a result of Berry’s offer because Curl-Stepney would have never accepted the offer, and she provided
no basis in her testimony to support her argument that she reasonably believed she was stopping future false or
fraudulent claims from being submitted to the government. Without this crucial link, Miller’s report is simply not
protected by the FCA.
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III.
For these reasons, we AFFIRM the judgment of the district court, and DENY as moot
Miller’s motion to take judicial notice.
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HELENE N. WHITE, Circuit Judge, dissenting.
I respectfully dissent.
Miller
reported what she reasonably understood to be an offer of money in exchange for Curl-Stepney’s
implementing a protocol involving Abbott’s products. Had Curl-Stepney accepted the offer and
implemented a protocol that promoted an Abbott nutritional product to Medicaid or Medicare
patients resulting in claims for reimbursement, an FCA violation would have reasonably resulted.
Miller’s claim should not depend on the integrity or good judgment of the person to whom the
inducement was offered. It was reasonable for her to fear that if the offer went unreported, it
might happen again. The fact that she did not articulate her motivation using those words but
expressed a more general belief that any offer of consideration was an unlawful “quid pro quo”
does not negate the fact that if accepted, the offer could have constituted a violation of the FCA,
and that it was objectively reasonable for an employee to believe that reporting such an offer
would prevent future violations of the FCA. Moreover, although Miller’s understanding of what
constitutes an FCA violation was inaccurate, employees are not required to know the intricacies
of the FCA, and Miller testified that she thought Berry’s offer violated the FCA and AKS. See
McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508, 516 (6th Cir. 2000); U.S. ex rel.
Schweizer v. Oce N.V., 677 F.3d 1228, 1238 (D.C. Cir. 2012). Because the FCA anti-retaliation
provision should be interpreted broadly to protect reports intended to prevent fraud on the
government, see McKenzie, 219 F.3d at 516, I would leave it to the jury to decide whether Miller
held an objectively reasonable belief that she was acting to stop an FCA violation.1
1
I recognize that Miller has additional hurdles to clear to obtain reversal. Miller established a
prima facie case and evidence of pretext by presenting evidence that shortly after her report of Berry’s
offer, Bailey began unfairly documenting performance issues to construct a record of poor performance
that was eventually used to justify her termination, and also denied requested training for a critical
certification exam. Because Bailey provided all of Miller’s performance evaluations and graded Miller’s
certification exams, Miller’s testimony disputing the accuracy of those assessments creates a genuine
dispute of material fact about whether Miller’s employment was terminated because of her report of
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No. 15-5762, Miller v. Abbott Laboratories
I would reverse and remand for trial.
Berry’s offer and whether Abbott’s reason for terminating her employment—which was based primarily
on Bailey’s reports about Miller’s performance—was pretextual.
-16-
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