USA ex rel, Morgan-Lee, et al. v. The Whittier Health Network, LLC, et al.
Judge Douglas P. Woodlock: MEMORANDUM OF FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING JUDGMENT FOR DEFENDANT WITH RESPECT TO RETALIATION CLAIMS(Woodlock, Douglas)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
THERAPY RESOURCES MANAGEMENT, )
CIVIL ACTION NO.
FINDINGS OF FACT
CONCLUSIONS OF LAW
JUDGMENT FOR DEFENDANT
WITH RESPECT TO
November 13, 2023
TABLE OF CONTENTS
II. PROCEDURAL OVERVIEW........................................ 7
III. FINDINGS OF FACT.......................................... 9
A. Background ............................................ 9
B. Ms. Morgan-Lee’s Role in 2011 ........................ 11
C. Early Findings of Potential Fraud .................... 13
D. Friction with Ms. Rajagopal .......................... 15
E. Ms. Morgan-Lee’s Difficulty with Coworkers and Ms.
Rajagopal’s Attempts to Reduce Tensions .............. 20
F. Ms. Morgan-Lee’s Response to De-Escalation Efforts ... 26
G. Ms. Morgan-Lee’s Work-Related Stress ................. 27
H. The Meeting at Whittier .............................. 29
I. The October 28 Meeting and Its Aftermath ............. 33
J. Ms. Rajagopal’s Further Efforts to Calm Tensions ..... 36
K. Ms. Morgan-Lee Takes More Time Off, Is Asked to Return
or Take Leave, and Invokes Whistleblower Protections . 37
L. Ms. Morgan-Lee Contacts the Owners ................... 47
M. Ms. Morgan-Lee Meets with Mr. Scott and Attorney
Blackman and Declines to Identify Instances of Fraud . 50
N. Ms. Morgan-Lee’s Termination ......................... 53
IV. CONCLUSIONS OF LAW........................................ 54
A. FCA Retaliation ...................................... 54
1. Protected Activity.................................. 55
a. Legal Standard .................................... 55
b. Analysis .......................................... 57
2. Employer Knowledge.................................. 60
a. Legal Standard .................................... 60
b. Analysis .......................................... 62
3. Retaliatory Causation............................... 65
a. Legal Standard .................................... 65
b. Analysis .......................................... 66
B. RIWPA Retaliation .................................... 74
V. JUDGMENT................................................... 76
This case poses the factual question of whether an
employee, Rosemary Morgan-Lee, was fired in retaliation for
internally raising her concerns of fraudulent activity within
her employer, Therapy Resources Management (TRM).
If she was
fired for reporting fraud, an activity protected under the False
Claims Act (FCA), 31 U.S.C. § 3730(h), and the Rhode Island
Whistleblowers’ Protection Act (RIWPA), R.I. Gen. Laws §§ 28-501 to -9, TRM could be liable for damages.
TRM contends she was
fired because of a breakdown in the employment relationship and
is entitled to no damages.
An initial jury trial ended in a mistrial when one juror
unaccountably refused to answer when she was polled after the
verdict was recorded.
Thereafter, the parties tried the case
again, this time as a bench trial.
For the reasons set forth below, as finder of fact, I
conclude that Ms. Morgan-Lee has not proven by a preponderance
of the evidence that she was fired because she engaged in
Ms. Morgan-Lee, whose duties included auditing TRM’s
billing and documentation practices, was required to identify
and report billing discrepancies.
She did, on several
occasions, identify discrepancies indicative of potential
misconduct or fraud that would fall within the whistleblower
protections of the FCA.
I find, however, that she was
discharged because of a spate of unapproved absences and an
outright refusal to provide specifics about purported fraudulent
activity, even though that was her job.
The breakdown of Ms.
Morgan-Lee’s employment relationship was the culmination of an
escalating pattern of erratic, confrontational, and frequently
insubordinate communications by Ms. Morgan-Lee with superiors
and colleagues, rather than the product of any retaliatory
animus on the part of TRM.
Consequently, I will direct judgment entry for defendant
TRM on Ms. Morgan-Lee’s retaliation claims.
Before she was fired in late 2011, Ms. Morgan-Lee was
Director of Clinical Services for TRM.
Her duties in that role
included auditing documentation such as billing records for
services provided by TRM-employed therapists to patients in
nursing homes that contracted with TRM.
Ms. Morgan-Lee’s duties
– and the pressures of her position – expanded significantly in
the spring and summer of 2011, when the federal agency
responsible for the Medicare program announced a substantial
overhaul of Medicare billing requirements and procedures, to
take effect in the fall of 2011.
In the course of her work, Ms. Morgan-Lee noted a variety
of issues with TRM’s operations and documentation, including
some instances that she would claim were indicative of fraud.
She stridently raised the issues that she saw and took
considerable umbrage when she felt that others in the
organization were not following her recommendations.
she seems to have viewed her role as including the authority to
issue directives to TRM employees (as opposed to making
recommendations to management), and in some instances she
insisted that others within the company should be disciplined
when they were insufficiently responsive to her recommendations.
By the fall of 2011, the tone of the interactions between
Ms. Morgan-Lee and her colleagues and superiors had
deteriorated, and working relationships were extremely strained.
The company’s president, Uma Rajagopal, sought to manage Ms.
Morgan-Lee’s frustrations and mediate her interactions with
Ms. Morgan-Lee perceived these efforts as
further undermining her work and her authority.
In addition to
Ms. Morgan-Lee’s complaints about her colleagues, she began
complaining of work-related stress.
These complaints became so
frequent that Ms. Rajagopal expressed concern for Ms. MorganLee’s well-being and suggested changing her responsibilities.
In late October 2011, Ms. Morgan-Lee began unilaterally
taking time off with little notice.
TRM, with the assistance of
outside employment counsel, attempted to navigate Ms. MorganLee’s behavior and determine whether some type of leave would be
In the first two weeks of November, Ms. Morgan-Lee
spoke and corresponded by email with TRM’s Vice President of
Human Resources and later with several of TRM’s owners.
large part, those communications related to her conflicts with
Ms. Rajagopal and others, but Ms. Morgan-Lee also voiced claims
of fraud or other wrongdoing at TRM.
TRM asked Ms. Morgan-Lee to provide further details about
her claims, including at a meeting on November 14, 2011.
that meeting, TRM’s Vice President of Human Resources and TRM’s
outside counsel asked her for specifics about the misconduct
that she claimed to have uncovered.
Ms. Morgan-Lee, however,
refused to discuss the matter and suggested that she wanted to
have an attorney of her own present.
Afterwards, she was
unreceptive to requests to meet further and continued in her
refusal to provide specifics of the purported misconduct.
TRM extended Ms. Morgan-Lee’s paid leave through
Thanksgiving, and, on November 29, 2011, informed her that she
would be terminated as of December 2, 2011.
II. PROCEDURAL OVERVIEW
This case began as an expansive qui tam action with
The original defendants were TRM, Ms.
Rajagopal, and three companies that operated nursing homes that
used TRM’s services: Whittier Health Network, LLC; Health
Concepts, Ltd.; and Diocesan Facilities Self-Insurance Group,
Also named were various individual facilities operated by
Plaintiff’s second amended complaint dropped Diocesan
Facilities Self-Insurance Group and its facilities as
[See Dkt. No. 65].
Four months later, Plaintiff
dismissed her claims against Ms. Rajagopal and against Health
Concepts and its facilities (although the dismissal of those qui
tam claims was explicitly without prejudice as to the
[See Dkt. 94 p. 2–3].
In the same filing,
Plaintiff dismissed some of her claims against Whittier Health
and all her claims against TRM except the FCA and RIWPA
whistleblower retaliation claims.
claims are the subject of this decision.
Plaintiff’s other claims against Whittier Health and its
facilities were settled in August of 2016.
[See Dkt. No. 163].
In September and October of 2016, the U.S. Attorney’s Office for
the District of Massachusetts announced that Health Concepts and
Whittier Health (as well as one executive from each company) had
reached settlement agreements of $2.2 and $2.5 million,
respectively, to resolve allegations that the companies “failed
to take sufficient steps to prevent TRM from engaging in a
pattern and practice of fraudulently inflating the reported
amounts of therapy provided to Medicare Part A patients in [the
companies’] facilities” (as stated identically in two press
See Press Release, U.S. Att’y’s Office, Dist. of
Mass., Nursing Home Operator and Director of Long Term Care to
Pay $2.5 Million to Settle False Claims for Rehabilitation
Therapy, Justice.gov (Oct. 13, 2016), https://www.justice.gov/
usao-ma/pr/nursing-home-operator-and-director-long-term-carepay-25-million-settle-false-claims; Press Release, U.S. Att’y’s
Office, Dist. of Mass., Rhode Island Nursing Home Operator and
Chief Operating Officer to Pay $2.2 Million to Resolve False
Claims Allegations, Justice.gov (Sept. 28, 2016), https://
www.justice.gov/usao-ma/pr/rhode-island-nursing-home-operatorand-chief-operating-officer-pay-22-million-resolve; see also
Settlement Agreement, Dkt. No. 247-2.
The underlying FCA claims having settled without further
challenge, the sole remaining question in this suit (apart from
the award of expenses, attorneys’ fees and costs) is whether TRM
fired Ms. Morgan-Lee in retaliation for protected activity and
thereby violated the whistleblower protections of the FCA, the
RIWPA, or both.
III. FINDINGS OF FACT
Plaintiff Rosemary Morgan-Lee is a licensed physical
In 2003, she was hired by TRM, a company that
provided rehabilitation services – such as physical,
occupational, and speech therapy – to nursing home patients.
She began as a Rehab Manager, overseeing TRM’s services at one
nursing facility, and she was eventually promoted to Director of
Clinical Services, which was her position during the events that
were the focus of the trial.
Ms. Morgan-Lee’s job responsibilities as Director of
Clinical Services included writing policies to support the TRM
mission statement, educating and training the staff, and
auditing medical records for inappropriate billing practices by
therapists (which could range from poorly worded documentation
to billing for services not rendered or changing doctors’
[Dkt. No. 349 p. 45-47, 68-70; see Ex. 34A
(documenting issues found by Ms. Morgan-Lee in a review of one
One of Ms. Morgan-Lee’s central responsibilities was to
monitor and support compliance with Medicare reimbursement
Although TRM did not submit bills directly to
Medicare, its owners and management understood that billing
information provided by TRM would be provided to Medicare and
also understood that TRM was responsible for ensuring its
billing practices conformed to federal government standards. 1
[Dkt. No. 349 p. 26–28].
TRM billed nursing facilities for services that TRM therapists
and workers provided to residents at the facilities. [Dkt. No.
349 p. 12]. The facilities, in turn, submitted reimbursement
Ms. Morgan-Lee’s Role in 2011
In 2011, the Centers for Medicare and Medicaid Services
announced a series of changes to their reimbursement procedures,
with an effective date of October 1, 2011.
See Proposed Rule,
Medicare Program; Prospective Payment System and Consolidated
Billing for Skilled Nursing Facilities, 76 Fed. Reg. 26364
(proposed May 6, 2011); Final Rule, Medicare Program;
Prospective Payment System and Consolidated Billing for Skilled
Nursing Facilities for FY 2012, 76 Fed. Reg. 48486 (Aug. 8,
2011) (codified at 42 C.F.R. pt. 413) (setting forth the final
rule and stating an effective date of October 1, 2011).
In anticipation of the Medicare rule changes, Ms. MorganLee and the rest of TRM’s clinical team set out to educate TRM’s
employees about the new requirements.
To that end, Ms. Morgan-
Lee and TRM’s supervisory staff routinely held trainings for
staff, sent out memoranda, and prepared presentations.
No. 349 p. 68–69].
At the same time, TRM’s president, Ms. Rajagopal, directed
Ms. Morgan-Lee and other members of the clinical team to audit
treatment records to determine whether therapists were adjusting
their billing practices as needed to comply with the upcoming
claims to Medicare. [See id.]. Medicare reimbursed the
facilities, which in turn paid TRM an agreed-upon fee or
percentage of the Medicare reimbursement, as determined by the
facilities’ contracts with TRM. [Id. p. 24–26].
[Dkt. No. 349 p. 69-70; Dkt. No. 342 p. 28–29].
audits were designed to find billing issues, which Ms. MorganLee documented in email “synopses” that she sent to the relevant
managers at TRM and to Ms. Rajagopal.
[Dkt. No. 349 p. 60, 68–
Although Ms. Morgan-Lee made recommendations directly to
regional managers and senior managers within TRM, implementation
of her recommendations fell to TRM’s operations team, which
included the regional managers who oversaw the company’s
operations at each facility.
Dkt. No. 349 p. 71].
[Dkt. No. 342 p. 29–32, 40–42;
Regional managers were responsible for
working with Ms. Rajagopal to develop “Plans of Correction” to
address issues raised by Ms. Morgan-Lee.
[Dkt. No. 342 p. 30–
The authority to decide what changes to make and how to
make them rested with Ms. Rajagopal.
[See Dkt. No. 349 p. 71].
As is common for audit and compliance personnel in many
organizations, Ms. Morgan-Lee’s position required her to operate
in a nuanced role.
She was empowered to request information
from a broad range of employees and to report her findings to
senior management, but she was not in a position to implement
policy changes, to direct employees’ work, or to impose
This division of responsibilities appears to have
taxed Ms. Morgan-Lee’s patience.
As discussed below, she was
repeatedly frustrated by what she saw as a lack of
responsiveness to her recommendations.
Although Ms. Morgan-Lee may have felt that her
recommendations went unheeded, the facts set forth below do not
demonstrate that TRM management schemed to silence her.
spring and summer of 2011, she reported findings suggestive of
fraud, yet she suffered no adverse consequences, and the company
supported her in many respects.
The fact that Ms. Morgan-Lee
did not encounter any adverse employment actions when she began
reporting potential fraud in the first three quarters of 2011
informs my finding that her firing in December of 2011 was not
retaliation for reporting potential fraud.
Early Findings of Potential Fraud
At trial, Ms. Morgan-Lee testified that she had observed
and reported potential fraud on various occasions, including at
times well before the events that precipitated her firing.
notable example involved a series of conversations on March 31
and April 1, 2011, more than six months prior to the events
leading up to her firing.
In March of 2011, Ms. Morgan-Lee had
noticed that a particular patient’s file included physician’s
orders for therapy three times per week, yet Medicare was being
billed at the highest reimbursement level – a level that was
only available for patients receiving therapy at least five
times per week.
[Dkt. No. 349 p. 49–53; Dkt. No. 463 p. 13–19].
Ms. Morgan-Lee testified that she met with an Assistant Regional
Manager about the issue and that he told her he would shred the
existing physician’s orders and replace them with orders calling
for five treatments per week. 2
[Dkt. No. 349 p. 50–51].
Morgan-Lee testified that she had refused to approve the altered
chart for submission.
[Id. p. 52].
She further testified that
she had a conversation with Ms. Rajagopal about the matter, from
which she inferred that Ms. Rajagopal had ultimately approved
the documentation with the altered physician’s order.
Ms. Morgan-Lee’s testimony was partially corroborated
by a copy of a text that she received from Ms. Rajagopal, which
read, “I am being very clear.
We cannot lose these adrs[ 3] so
figure it out or refuse to do them. I will figure it out[.]”
[Ex. 8; see Dkt. No. 349 p. 58-59, Dkt. No. 463 p. 16–17, 19].
This interaction and others like it show that Ms. MorganLee was raising specific concerns suggestive of fraud to TRM’s
management and having direct, even confrontational, interactions
about those concerns more than six months before anyone in TRM
management took steps towards altering her employment status
(i.e., by preparing to consult the company’s employment counsel
[See, e.g., Ex. 40 (showing internal correspondence
dated November 2, 2011, initiating an effort to seek legal
From Ms. Morgan-Lee’s description, it appears that this would
not change the number of therapy hours billed, but would affect
the reimbursement rate.
3 ADRs is an acronym that refers to requests for additional
documentation, which the Medicare program required before paying
advice regarding Ms. Morgan-Lee’s extended absences)].
Morgan-Lee’s explicit and specific reports of misconduct in the
spring of 2011 did not trigger adverse employment consequences
undercuts her contention that her discharge in December of that
year was actually in retaliation for whistleblowing about
problematic billing practices.
Friction with Ms. Rajagopal
The pressure of preparing for impending changes to
Medicare’s rules for billing practices increased tensions
between Ms. Morgan-Lee and her colleagues, and generated
tensions with her supervisor, Ms. Rajagopal, as well.
tensions are evident in the tone of various email exchanges
between Ms. Morgan-Lee and Ms. Rajagopal and in the synopses
that Ms. Morgan-Lee wrote describing the results of her audits.
I do not exclude at this stage of my evidentiary analysis
that some of the tensions between Ms. Morgan-Lee and Ms.
Rajagopal derived from the substance of Ms. Morgan-Lee’s reports
(that is, the accusation that TRM and its leadership were
failing to prevent, or were even condoning, improper billing).
For the most part, however, the conflicts that emerged in the
fall of 2011 appear to have stemmed from the combined effects of
Ms. Morgan-Lee’s view of her role, her pertinacious insistence
that perceived issues be addressed immediately and on her terms,
and significant interpersonal communication challenges between
the individuals involved.
The evidence shows that Ms. Rajagopal, on multiple
occasions, supported and undertook to implement Ms. Morgan-Lee’s
Exhibits and testimony reflect that Ms.
Rajagopal emphasized the importance of properly transitioning to
the new billing process and pressured TRM employees to bring
their operating procedures into line.
For example, Ms.
Rajagopal sent an email on or around September 26, 2011, to a
group that included Ms. Morgan-Lee, as well as various
rehabilitation managers, regional managers, clinical
consultants, and TRM’s director of operations.
[Dkt. No. 342
With the effective date for the new Medicare procedures
approaching, Ms. Rajagopal’s email projected a sense of urgency
and threatened discipline for employees who failed to comply
with required changes to billing and reporting practices:
We cannot deliver 800 min of therapy for uh pts/we
cannot still use grps the same way/ we cannot choose
ard dates as before/ we have to re vamp our
If rcs cannot do this then they will be written up
Unfortunately our timeline for transition is passing
w/o any effort from your teams to change operational
[Ex. 13]. 4
There is no evidence to suggest that Ms. Rajagopal’s
email was a pretext or sham and, on its face, it reflects an
effort to enforce compliance with the new Medicare billing
requirements in advance of the new rule’s implementation.
Ms. Morgan-Lee’s outsized view of her own role – and her
lack of tact – is evident in her response to Ms. Rajagopal’s
Ms. Morgan-Lee sent a reply to thirteen recipients,
while omitting Ms. Rajagopal.
In her email, Ms. Morgan-Lee set
a deadline for regional managers to prepare plans of correction
in response to her synopses and demanded that each plan be
signed by the regional manager and the manager responsible for
the TRM’s operations at the specific facility.
All regionals need to bring their Plan of Corrections
for each of the synopsis that you have received by
Friday am, Sept 30th.
Again, it is not rationales as to why things are the
way they are, but how the RM are correcting the
issues being found both operationally and clinically
under CMS regulations, State practice acts and TRM
policies and procedures.
I present the correspondence between the parties as is, without
correcting typographical and grammatical errors or altering
spacing. The terminology is somewhat opaque, owing in part to
the use of specialized acronyms (e.g., “uh” for ultra-high
therapy rates and “adr” for additional documentation request).
Technical jargon aside, there is much that is cryptic in some of
these emails. In some instances, the language reflects the
writers’ personalities and relationships. Equally important,
the lack of clarity (in part due to poor sentence construction)
helps to explain some of the confusion between the parties.
They need to be signed by the regional and rehab
A few days after this email, Ms. Morgan-Lee met with Ms.
Rajagopal and complained that a colleague had been told
(presumably by Ms. Rajagopal) that he needed only to submit a
plan of correction to Ms. Rajagopal, not to Ms. Morgan-Lee.
[Dkt. No. 342 p. 35].
On September 30, the day before the new
billing procedures became effective, Ms. Morgan-Lee sent an
email which again reflects that she saw herself as not only an
auditor, but as someone empowered to implement and enforce
Writing to Ms. Rajagopal, Ms. Morgan-Lee complained
that certain regional managers were not responding to her
In part, her email stated:
I get responses [from these managers] like “we are
not doing that, we were told we dont have to , we
didnt go over the synopsis, Uma asked me to give
those to her instead of you, and/or we weren’t taught
that way,” which do not seem appropriate when I ask
you and you ask me to ask them why.
Thus, if they are not following through, then it
would be very apparent that the RC/staff may not be
getting the information either
As I spend numerous hours working diligently to get
things done timely, thoroughlty, accurately,
objectively, ethically and completely, it would be
most appreciated for them to follow through as others
are expected to do as well.
Im very concerned about many clinicall and
operational practices as you are as stated.
I request for this to not be shared with anyone, but
[Ex. 56]. 5
In response, Ms. Rajagopal wrote only, “Are you
trying to say something?” to which Ms. Morgan-Lee replied, “Im
asking you...the below?”
Ms. Rajagopal responded, “I don’t like
the way u say ‘undo’ what u do”, apparently in reference to a
conversation outside the email chain in which Ms. Morgan-Lee had
complained that Ms. Rajagopal was “undoing” her work.
Dkt. No. 342 p. 35–36].
These kinds of email interactions are
characteristic of the correspondence between Ms. Morgan-Lee and
Ms. Rajagopal, and they reflect the increasingly fraught
relationship between two frustrated parties.
There is nothing to suggest, however, that the tensions
between Ms. Morgan-Lee and Ms. Rajagopal indicated a desire or
intention on Ms. Rajagopal’s part to retaliate against Ms.
Rather, there is considerable evidence of Ms.
Rajagopal’s solicitude towards Ms. Morgan-Lee, her concern for
Ms. Morgan-Lee’s emotional well-being, and her repeated efforts
to ameliorate tensions between Ms. Morgan-Lee and others at TRM,
including Ms. Rajagopal herself.
These facts, as set forth
The parties often use ellipses as elements of their
punctuation. To distinguish original punctuation from
omissions, where I have referenced quoted text, my alterations –
including ellipses used to indicate omissions – are in brackets.
below, undercut any suggestion that Ms. Rajagopal was looking
for a pretext to discharge Ms. Morgan-Lee.
Ms. Morgan-Lee’s Difficulty with Coworkers and Ms.
Rajagopal’s Attempts to Reduce Tensions
Notwithstanding her own challenges in communicating with
Ms. Morgan-Lee, Ms. Rajagopal attempted to mediate Ms. MorganLee’s difficulties with her colleagues.
One example is Ms.
Morgan-Lee’s interactions with Jerry St. Jacques, a Regional
In October of 2011, Ms. Morgan-Lee suspected that some
billing records in Mr. St. Jacques’ region were being altered to
add minutes of therapy to bills that came up short.
349 p. 54–55].
Due to the complexity of the Medicare
reimbursement rules and review process, it is difficult to
ascertain the extent and seriousness of the issues that Ms.
Morgan-Lee identified in Mr. St. Jacques’ region.
I credit Ms.
Morgan-Lee’s testimony that there were some instances, at least,
when TRM employees manipulated therapy hours in order to qualify
for higher reimbursement rates.
It is not clear, however,
whether these ultimately impacted reimbursements.
p. 56 (noting that a reimbursement claim “came back denied at
the higher level”)].
Having heard Ms. Morgan-Lee testify, I find that she
fervently believed that the problems were serious and that Mr.
St. Jacques’ efforts to correct them were inadequate.
equally evident, though, from the parties’ contemporaneous
emails, that Ms. Morgan-Lee’s tone in pressing her concerns was
impolitic, at best, and frequently self-aggrandizing. 6
significantly, her comments show her to be oblivious to the
distinction between her own role as an auditor/compliance
advisor and the roles of executives with direct responsibility
Even assuming that many of Ms. Morgan-Lee’s
findings and recommendations were correct, it is unsurprising
that her employer would conclude that her hectoring tone and her
disregard for organizational boundaries exacerbated tensions
within the company.
Her emails with and about Mr. St. Jacques
are indicative of both the nature of her concerns and the
reasons why her employer might have taken issue with how she
communicated her concerns.
Ms. Morgan-Lee’s exchange with Mr. St. Jacques in midOctober of 2011 captures some of the tenor of these
By email, she noted that some therapists were
working with patients outside of the 7 a.m. to 7 p.m. workday
established by company policy and noted that some therapists
In many of her emails, Ms. Morgan-Lee touts own efforts. For
example, on Saturday, October 1, 2011, in response to Ms.
Rajagopal telling her that some team members work harder than
others, Ms. Morgan-Lee wrote, “All I will speak for is
myself....I give 100% every minute/second I work....go where and
when is needed and always offer[.]” [Ex. 58].
were failing to meet company quotas for productivity.
matters of company policy (with no evident connection to
Medicare billing issues) were raised alongside observations that
some therapists appeared to be overstating therapy times and
that therapists sometimes billed for meetings related to patient
care (“PPS meetings”) at which patients were not present.
Exs. 15, 33].
On October 17, 2011, Ms. Morgan-Lee sent an email
to Mr. St. Jacques regarding one of the facilities in his
I never received any feedback re; major concerns
Deb, OTR, still in building very late at night, one
patient missed Rx ‘due to fatigue’ Sat pm (she was there
till 1030pm)...as well as others in before 7am and out
after 7pm, but she has been spoken to in the past as
well.... [. . .]
WV, Im very concerned about billing being added when it
is founded that a category is missed, Friday it appeared
all billing was in Sat/Sun when I was auditing?
[. . .]
Med As cannot be billed for PPS meetings if patient not
present or at any time if patient is not actively
participating in Rx.
[. . .]
Will send more thorough audits but Im sure if youvve
viewed you have found similar patterns unchanged or
Mr. St. Jacques responded that he “did speak to [the
named facility] and was again told it was a mishap on billing
(therapist did a 15 minute non-planned treatment)” and that he
“[r]e-educated about use of community re-integration and only
billing for meetings if resident is present.”
concluded by noting that Ms. Morgan-Lee was reviewing past
bills, and he commented that practices had improved: “I
understand you are looking back at the ADR timelines... but West
Shore, Morgan, and all there rest ARE delivering what is being
Earlier that same day, Ms. Morgan-Lee had emailed Ms.
Rajagopal about billing, stating, based on conversations with
other employees, that there was a pattern of employees adding 5
to 15 minutes to a patient’s bill if the patient was “short.”
The record does not show any direct response from Ms.
However, the next evening, Ms. Rajagopal sent Ms.
Morgan-Lee and thirteen others an email with the subject line
“Please take a step back.”
The email read:
I understand that there are concerns and discontent.
I am confident that no one on my corporate team and no
one on my mgmt team is intentionally trying to undermine
I am seeing emails back and forth. All I want to say is
that we need to respect each other in our roles and be
supportive of audits done.
Guys there is no need to teach each other rules and
ethics. Clinical is sharing it’s findings and ops needs
to work on following through.
Why is there so much friction?
No need to beat up on same issues and no need to get
into defensive/ offensive modes.
The cms environment is already beyond all our control.
Do we need to continue these battles? Can’t we try to
learn from each other and also try to take a more
partnership approach with each other?
No one is trying to change codes/ criticize / target
individuals/ make errors or do fraud.....
Just let’s please try to improve our strengths and stop
This email does not seem to have mitigated the friction
between Ms. Morgan-Lee and her coworkers.
remained frustrated with Mr. St. Jacques’ responses to her audit
After Ms. Morgan-Lee sent him a multiple-page email
itemizing her concerns by facility and by individual employee,
Mr. St. Jacques replied, in part, “Rosemary, This is another
audit with a large amount of information.
Again I just ask that
I be given some time to catch up on things and focus on the
points I am able... [. . .] I have given much verbal education
Ms. Morgan-Lee responded, copying
I did give you more than adequate time besides we should
not even find most of these issues
and they are individual/home....I just put in one email,
you can break it down
I am doing as asked and completing all as requested which
takes me a significant amt of time
Uma asked if I called you as well, which I have numerous
times to reeducate and educate as well you have been
presenting the info for the last 1-2 years, thus these
should not be as significant, consistent and prevalent
I had given you an extra week for reaudit, these are
ongoing and I find it interesting that groups went
completely away in a flash so I know that the RCs should
take care of issues.
I knew you didn’t have presentations or anything so you
also had plenty of time
Word of advice, I would change the issues myself, as I
did as a regional since they are consistent and unchanged
Ms. Morgan-Lee’s follow-up correspondence with Ms.
Rajagopal in the next days reinforces the impression that Ms.
Morgan-Lee’s indignation toward team managers had overwhelmed
her sense of collegiality and professional decorum.
Ms. Rajagopal again two days later regarding her concerns about
Mr. St. Jacques’ region, noting that minutes would sometimes be
added to bills under suspicious circumstances.
followed up that night with another email to Ms. Rajagopal,
I had not heard back from you re: my growing concerns in
practices/education in [Mr. St. Jacques’] region
Ive done everything to educate, speak to him as well as
Ms. Morgan-Lee sent Ms. Rajagopal yet another email the
next morning reiterating that “there is little to no change in
some regions/home after extensive education, audits with
synopsis, black and white feedback/phone consults, whatever and
She continued, writing that the
situation “has created a significant amount of work related
stress with me, at times challenging my ethics [. . .].”
In responsive emails, Ms. Rajagopal attempted to address
Ms. Morgan-Lee’s frustrations.
Ms. Rajagopal suggested a degree
of empathy for the managers whom Ms. Morgan-Lee was criticizing,
and she reminded Ms. Morgan-Lee that her job was to audit,
whereas the authority to implement changes sat with the
Replying to Ms. Morgan-Lee’s email, Ms.
Rajagopal wrote, “There are multiple managers at different
levels of our organization who have similar ethics and values.
They are all working to improve operations every day.”
In a separate email around the same time, Ms. Rajagopal reminded
Ms. Morgan-Lee that “[her] job is to do audits and educate” and
asked her to “pl let the operational managers decide how to take
it to the next level.”
Ms. Morgan-Lee’s Response to De-Escalation Efforts
The emails reported in the preceding section (III.E.)
seemed to have marked a breaking point for Ms. Morgan-Lee, who
treated Ms. Rajagopal’s responses as a personal affront.
Morgan-Lee replied on October 27, 2011, that Ms. Rajagopal’s
response put a “huge obstacle” in the way of her ability to
perform her job well, and that “[a] great divide was just put in
our teamwork by this statement, in my opinion.”
In trial testimony several years later, Ms. Morgan-Lee
characterized her feelings at the time and described a situation
that she viewed as one in which TRM employees ignored her
findings in September and October with Ms. Rajagopal’s backing:
And I was very frustrated.
I was very upset.
very -- I had a lot of emotions. I felt for a long time
I had been supported by [Ms. Rajagopal].
remarks were passed by other Rehab Managers and Regional
Managers that they informed me that [. . .] [Ms.
Rajagopal] instructed them not to listen to me, and that
they were to listen to her.
I was disappointed.
probably felt every emotion, because I’m very passionate
about what I do.
[Dkt. No. 349 p. 68].
She further testified that she “felt
betrayed” when she was told that Ms. Rajagopal had instructed
other employees to follow instructions from Ms. Rajagopal over
those from Ms. Morgan-Lee.
[Id. p. 69].
Her testimony suggests
that she saw Ms. Rajagopal’s assertion of authority as a sign of
personal antipathy rather than as an exercise of managerial
responsibility and authority.
[Id. (“I thought we had a decent
relationship, [. . .] and I felt betrayed, actually[.]”)].
Ms. Morgan-Lee’s Work-Related Stress
In various of the late-October emails from Ms. Morgan-Lee
to Ms. Rajagopal, Ms. Morgan-Lee complained that her
professional responsibilities were causing her great stress.
[See, e.g., Ex. 17 (“It has created a significant amount of work
related stress with me, at times challenging my ethics[.]”); Ex.
18 (“I am very concerned with the stress related to my job to
allow me to perform and follow through as well as disrespect and
at times unhealthy responses with personal attacks.”)].
response to one email, Ms. Rajagopal wrote, “I don’t want you to
feel undue stress[.]
So pl let me know if doing your job
differently or having different responsibilities would help[.]”
Responding to another email, she wrote:
There are operational issues we deal with as we work
I am not sure why u feel staff is not held
Everyone is trying to do their best for the most part
You can always talk to Gus and VP of human resources
he will bring his report to me.
Ms. Rajagopal’s emails suggest that she saw Ms.
Morgan-Lee’s comments as indicative of an emerging personnel
issue, and she forwarded several email exchanges with Ms.
Morgan-Lee to Robert “Gus” Scott, TRM’s Vice President of Human
[See Exs. 36, 37, 38].
There is no evidence that Ms. Morgan-Lee responded to Ms.
Rajagopal’s suggestion that they consider changes to her
responsibilities or other stress-reduction strategies.
Morgan-Lee did, however, continue to complain about her workrelated stress in emails.
[See, e.g., Exs. 19, 20, 25].
The Meeting at Whittier
On October 27, 2011, Ms. Morgan-Lee attended a meeting at
the offices of Whittier, an operator of nursing homes and a
major TRM customer.
[Dkt. No. 349 p. 69, 72].
Ms. Rajagopal had sent the email reminding Ms. Morgan-Lee that
“[her] job is to do audits and educate[.]”
the meetings that day, between Ms. Morgan-Lee and a Whittier
employee, concerned how Whittier planned to document a
particular claim when submitting it to Medicare.
[Dkt. No. 342
Ms. Morgan-Lee knew that the ultimate submission of
the claim was done by Whittier, and that TRM could not control
how Whittier chose to submit the claim.
[Dkt. No. 342 p. 55].
She was also aware that an outside healthcare consulting company
was assisting Whittier and had made recommendations about how
Whittier should submit such claims.
[Dkt. No. 342 p. 59–60].
Although Ms. Morgan-Lee did not know precisely how the
claim was being handled, she was certain that Whittier’s
approach was fraudulent and left the meeting abruptly and
I had a brief meeting.
We sat down, and she, [the
Whittier employee], said, “So, we’re going to go ahead
and add the one unit and the one penny to the bill,”
they call it a “UB-04,” and I said, “I already instructed
Uma [Rajagopal] that I don’t know what that means, but
we shouldn’t be doing that, that’s fraud,” and I was
sickened, mad, got up and left.
[Dkt. No. 349 p. 72].
Ms. Morgan-Lee testified that she was
upset because she felt that Ms. Rajagopal had endorsed her
recommendations in private but had not adequately supported her
in communications with Whittier prior to the meeting (Ms.
Rajagopal was not present for the meeting itself).
342 p. 60–61].
Ms. Morgan-Lee’s testimony conveyed the impression that she
left Whittier’s offices abruptly.
[Dkt. No. 349 p. 72–73].
Rajagopal called Ms. Morgan-Lee after Ms. Morgan-Lee left, and
they had a contentious phone call.
testified that the phone call was the first time that she ever
used the word “fraud” to describe any of her concerns.
No. 463 p. 49–50].
The conversation was apparently quite
heated, and Ms. Morgan-Lee testified about the incident that “my
emotions were everywhere.”
[Dkt. No. 349 p. 73].
apparently hung up on her.
Ms. Morgan-Lee then called Mr. Scott, TRM’s Vice President
of Human Resources, and told him that, because of her tensions
with Ms. Rajagopal and her work-related stress, she would need
to take a day off.
[Id. p. 74].
Ms. Rajagopal attempted to
call Ms. Morgan-Lee repeatedly during the rest of the day, and
Ms. Morgan-Lee finally called her back that evening, at which
time Ms. Rajagopal informed her that she was scheduling a
mandatory meeting the following day to address Ms. Morgan-Lee’s
Ms. Rajagopal also sent an email to Ms.
Morgan-Lee about the meeting, which Ms. Morgan-Lee responded to
around 10 p.m.:
As noted in all my synopsis , there are clinical and
operational as well as TRM policy/procedure, CMS and
STate practice act concerns
How you have responded has been unhealthy for me and
created work related stress especially after your verbal
responses on the phone today in regards to my concerns
As you have been informed, I also do not appreciated
being portrayed as the ‘bad guy,’ for many years to other
coworkers/corporate and professionals just as [the
Whittier employee] had stated on several occassions
today..it just became too much today
I have done everything and anything asked to the best of
my ability but felt today and from this mornings’ email
that it is difficult for me.
Later that night, Ms. Rajagopal responded to another
somewhat scattered email from Ms. Morgan-Lee, addressing each
concern in turn and writing the following in closing:
Rosemary, I think I have tried as much as I can to hear
you out. If you are really that unhappy, please let’s
sit down and talk about you transitioning your role.
Your well being is most important. You have had multiple
family issues and I am sure work adds more stress. So we
can meet to talk. But I really need to give you the
ability to reduce your stress by helping you take on a
different role. Maybe one facility based or one state
No evidence was presented that Ms. Morgan-Lee
responded to this email, although she forwarded it to Mr. Scott
around 11:20 p.m., calling it “a typical response over the last
7 years in which the issues are deflected and manipulated[.]”
Ms. Morgan-Lee sent Mr. Scott another email a few minutes
I never heard back from you
I sent you several texts
Uma contacted me an excessive amt of time...at least
7 texts, 2-3 emails and 3-5 calls...I finally spoke
to her as she strongly requested I be at the meeting
tomorrow...I did inform her I would try as she stated
she would be addressing numerous concerns
However, she stated any time off is not approved if I
dont file a written complaint or comp issue nor MLOA,
is this accurate if I inform her and you of what I
informed both of you?
This is not to be shared with anyone
This email showed Ms. Morgan-Lee to be conspicuously
unenthusiastic about attending a meeting on issues that she had
been persistently emailing Ms. Rajagopal about for weeks. 7
Although Ms. Morgan-Lee characterized Ms. Rajagopal’s attempted
communications as “excessive,” it does not appear that the
attempts were out of keeping with the ordinary conventions of
communication at TRM, at least as Ms. Morgan-Lee herself
practiced them. Ms. Morgan-Lee was certainly a sender of more
than one late-night flurry of emails. Her complaint about the
Whoever may have shared responsibility for the escalation of
tensions up to this point, Ms. Morgan-Lee’s behavior in the last
week of October had clearly begun testing the outer boundaries
of acceptable professional behavior.
The October 28 Meeting and Its Aftermath
Ms. Morgan-Lee did attend the meeting the next day, along
with Ms. Rajagopal, Mr. Scott, and about 17 other members of the
staff, accounting for the entire clinical team and the entire
[Dkt. No. 350 p. 16].
At trial, the parties presented diametrically opposed
accounts of the meeting’s events.
Ms. Morgan-Lee testified that
the meeting was extremely volatile:
What happened was it was not a meeting for me to discuss
my concerns. It was a meeting driven by Uma ranting,
screaming, crying, threatening. It was a very volatile,
hostile meeting, going around the room attacking certain
people personally and also stating if anybody in the
room had the F-ing balls to report fraud, that she would
ensure that not only would they not have a job with TRM,
that she would make sure they didn’t have one in the
industry. And then she also continued to make
disparaging comments about the owners and some of our - some of TRM’s big customers. And at the end of this
awful meeting she stated that if anybody wanted to
resign, that she would accept their resignation with
three months’ severance and/or if anybody wanted to take
time off, that she would approve the time and then to go
seek Robert Scott for a second signature.
frequency of contact might have been sincere, but it rings
hollow in context. It does not persuade me that Ms. Rajagopal’s
outreach was beyond the pale; rather it reflects the
interpersonal brittleness between Ms. Morgan-Lee and Ms.
Rajagopal at this time.
[Dkt. No. 349 p. 75-76].
TRM presented Mr. Scott’s testimony, which described a very
He was at the meeting on October 28 and
testified that Ms. Rajagopal did not say anything along the
lines of “if anyone has the fucking balls” or “[i]f you report
fraud, then you will never work in the industry.”
[Dkt. No. 350
Nor did Mr. Scott receive any complaints about the
meeting from anyone other than Ms. Morgan-Lee. 8
[Dkt. No. 350
I note that Ms. Morgan-Lee spoke to Mr. Scott later that
day and indicated that she needed to discuss “work ‘issues’”
[See Ex. 42].
She declined, however, to elaborate
and instead asked to speak with Brian Pontolilo, one of TRM’s
To the extent that Ms. Morgan-Lee spoke
about problems with billing, it is undisputed that she did not
Contemporaneous emails from Ms. Morgan-Lee indicate that, from
the start, the parties had vastly different perceptions or
recollections of the meeting. [See Ex. 20 (email from Ms.
Morgan-Lee to Mr. Scott, dated Oct. 30, 2011) (“I am not sure if
you are aware of the level of staff splitting that occurs at the
‘President’ level which appears to have created the hostile work
environment. Based on the fact that you remained in the meeting
on Friday and allowed the verbiage to be utilized, I would say
that you may not have been aware.”); Ex. 27 (email from Ms.
Morgan-Lee to Ms. Rajagopal, copying Mr. Scott, dated Nov. 9,
2011) (“I did inform you that you gave the impression in the
meeting on October 28, 2011, that operations didn’t have to
follow clinical recommendations, you disagreed that is what you
said and you felt you supported clinical findings and
mention fraud to Mr. Scott at this time.
[See Dkt. No. 350 p.
18 (Mr. Scott’s testimony that, as of his receipt of an October
30, 2011, email from Ms. Morgan-Lee, she had never said anything
to him about fraudulent billing practices); Dkt. No. 349 p. 76
(Ms. Morgan-Lee’s testimony acknowledging that she did not use
the term “fraud” with Mr. Scott on October 28)].
To the extent that the dispute about what happened at that
meeting on October 28 is material to the decision in this case,
I conclude that Ms. Morgan-Lee’s perception of this meeting does
not accurately reflect the tenor or content of the meeting, and
I credit Mr. Scott’s testimony.
acknowledgement that she did even mention the word “fraud” in
speaking with Mr. Scott afterwards is difficult to square with
her description of the meeting as an expletive-laced tirade
threatening retaliation against anyone who reported fraud at
Further, had the meeting really included such explicit and
profane threats, it seems likely that Ms. Morgan-Lee would have
found at least one corroborating witness among the 20-odd people
In any event, that night, Friday, October 28, at 11:19
p.m., Ms. Morgan-Lee emailed 28 people, including Mr. Scott and
Ms. Rajagopal, writing only, “I will be off until at least Nov
2, 2011[.] Thanks[.]”
She emailed Ms. Rajagopal and
Mr. Scott on the early morning of Wednesday, November 2 to say
that she needed to take “a couple more days off from TRM at this
[Exs. 39, 40].
Less than 10 minutes later, Mr. Scott emailed Ms. Rajagopal
to ask how she would like to handle Ms. Morgan-Lee’s continued
absences. He wrote, in part:
I’m not sure which direction you would like to head
with this. Rosemary is now officially taking more
than three days in a row off for personal mental
health reasons. I can check and I would like to
verify if we should ask for a Dr’s note for her
return or not. Right now, she is in the driver’s
seat; telling us if and when she will return. We
could also simply tell her to take the rest of the
week off and set a meeting to discuss her return.
Mr. Scott closed by suggesting that Ms. Rajagopal
should consult with an outside advisor about how to proceed, and
she replied that she would call TRM’s labor and employment
counsel, Brian Lewis, the following day.
Ms. Rajagopal’s Further Efforts to Calm Tensions
While the company grappled with a response to Ms. Morgan-
Lee’s absences, Ms. Rajagopal continued to try to engage with
Ms. Morgan-Lee in an effort to facilitate her return to work.
Ms. Morgan-Lee worked on November 4 [See Ex. 29], and she had
lunch with Ms. Rajagopal at the Providence Place Mall, after
which Ms. Rajagopal bought her a shirt from Talbots as a gift.
[Ex. 27; Dkt. No. 342 p. 70–71].
Ms. Morgan-Lee testified that
the lunch meeting was calm, relatively pleasant, and potentially
an attempt to clear the air.
[Dkt. No. 342 p. 70-71].
email she sent to Ms. Rajagopal the following week to summarize
the meeting, Ms. Morgan-Lee wrote that “the meeting was ok and
you seemed supportive of my concerns and professional goals
Ms. Morgan-Lee’s contemporaneous description of her
perception of the meeting reinforces my view that the meeting
was a genuine effort to reduce tensions, reset interpersonal
relations, and find a path forward for Ms. Morgan-Lee.
that Ms. Rajagopal was — even in the face of Ms. Morgan-Lee’s
unprofessional behavior — still attempting to find a way to
accommodate and retain Ms. Morgan-Lee undercuts the suggestion
that TRM’s managers were bent on retaliating against Ms. MorganLee for protected activity or were otherwise looking for an
excuse to fire her.
Ms. Morgan-Lee Takes More Time Off, Is Asked to Return or
Take Leave, and Invokes Whistleblower Protections
On the night of Sunday, November 6, Ms. Morgan-Lee
announced via email that she would be taking November 7 off. 9
Ms. Rajagopal replied, “Everything ok ?”
There was no evidence to indicate whether Ms. Morgan-Lee
At noon on November 8, Ms. Morgan-Lee emailed Mr.
It is possible that she sent this email in the early morning
hours of Monday, November 7. [See Ex. 24].
Scott telling him that she would not be working that day,
After these further unexcused absences, Ms. Rajagopal and
Mr. Scott contacted Attorney Lewis, TRM’s employment counsel,
who drafted an email to Ms. Morgan-Lee for Mr. Scott to send.
[See Ex. 69J].
Attorney Lewis characterized the email as
responding to “the situation over the past week or two” and
summarized that it set forth three options for Ms. Morgan-Lee:
(1) to return to work and “stop taking personal days with no
notice,” (2) to arrange for a formal leave and possible job
restructuring “if she has a medical issue related to her
stress,” or (3) to speak with Mr. Scott or another individual if
she needs help resolving an issue with a supervisor or coworker.
In addition to the email to Ms. Morgan-Lee, the parties
offered evidence of the internal correspondence that led up to
None of this internal correspondence suggests that
Ms. Morgan-Lee was being targeted for raising concerns about
Attorney Lewis’s comments reflect a shared understanding
that he was called in to address a newly arisen issue with
There is nothing to suggest that Ms. Rajagopal or
Mr. Scott had pointed to any issue of longer standing. 10
the email appears to reflect a bona fide effort to give Ms.
Morgan-Lee avenues to return to work, either immediately or
after resolving whatever issue was causing her unexcused
Although it is likely that the approach taken by TRM
management was informed by Ms. Morgan-Lee’s personality and her
sometimes erratic behavior, the email made no direct mention of
her significant friction with other TRM employees.
focus was on the need to have Ms. Morgan-Lee reliably available
to perform her duties as Clinical Director.
[See Ex. 42].
No doubt other employers would act summarily to fire an
employee who, with little notice or explanation, took more than
a week off from work, leaving others to pick up the pieces.
contrast, TRM’s attempts to accommodate Ms. Morgan-Lee,
notwithstanding her failure to formally request an
accommodation, suggest that the company was more interested in
retaining her as a productive employee in some capacity than in
Mr. Scott sent the email drafted by Attorney Lewis to Ms.
Morgan-Lee on the afternoon of November 8.
Ms. Morgan-Lee’s criticisms about other employees and their
compliance with applicable rules had been going on for months.
Whatever frustrations her managers may have felt about the tone
or content of her complaints, the evidence does not suggest that
those frustrations motivated the decision to bring in an
email outlined the time off that Ms. Morgan-Lee had been taking,
told her she could not take personal days off with so little
notice, and offered several options for dealing with her stress
— including options to take leave under the Family and Medical
Leave Act (FMLA) or to restructure her job.
email promised that “any job restructuring will not impact your
salary or other benefits [. . .] but, hopefully, will alleviate
some of the stress that you are suffering[.]”
In response to Mr. Scott’s email, Ms. Morgan-Lee sent Mr.
Scott three emails in the middle of the night: 2:17 a.m., 2:32
a.m., and 2:40 a.m. on November 9.
[Exs. 42, 43, 44].
first of these emails, though scattered, reads as a frustrated
defense of her time off and other behaviors mentioned in Mr.
For the first time, however, Ms.
Morgan-Lee also suggests that she was facing retaliation as a
She closed the email by stating:
I also believe you are aware that I shared some
information with you on Friday, November 4,2011 as far
as internal whistle blower protection act and the
repercussions I have felt from my supervisor. Trust in
the HR department is a major concern as I also informed
I did request via email and text today with Uma that we
meet. I received no response.
In her second email, Ms. Morgan-Lee again referred to
whistleblower protections and used other employment-law jargon
from the retaliation law context.
[See Ex. 43].
She wrote that
she was “concerned about the repercussions that I have
experienced while performing my job to the best of my ability as
well as the hostile work environment as well as other factors
from my supervisor, which has let to work related stress[.]”
She then raised, again, her concern that some staff were
working outside of the 7 a.m. to 7 p.m. hours set by TRM’s
internal policies. 11
Ms. Morgan-Lee went on in her second email to claim more
explicitly some kind of whistleblower protection, writing:
It was my understanding that by informing my supervisor
as well as regionals of my findings and concerns that I
should have been protected by a ‘whistleblowers
protection law,’ but it does not appear that way as the
following seems to be occurring or could be implied,
which is why I informed you on Friday, November 4, 2011.
Some of the apparent repercussions may include:
Threats made of failure to hire or rehire as well as
other employees Intimidation Making threats re: position
and future employment Reassignment affecting prospects
for promotion and professional goals outlined over a
year ago Implied Firing or laying off (offer 3 months
Whatever the purpose of this company policy on the
start/finish of the workday, the mere fact that employees may
have been working before or after their scheduled shifts is not
indicative of fraud. Whistleblower protections extend broadly
to reports of fraud or misconduct with respect to government
programs, but there is no special protection for employees who
merely report violations of company rules.
to employees on 10/28/11) [. . .] Potential demoting via
email and verbally Potention of denying promotion
This was followed by a third email, in which Ms.
Morgan-Lee complained that she had never been given a TRM email
[See Ex. 44].
Mr. Scott responded to these emails that afternoon
(November 9), presumably after speaking with Attorney Lewis.
[See Exs. 26, 45].
In his email, Mr. Scott reiterated to Ms.
Morgan-Lee that she could not take personal days with little or
no notice and provided her with options for taking extended time
He also addressed her claims of “harassment,”
writing that the company needed her cooperation to investigate
To that end, he requested a meeting:
Additionally, in your emails to me, you have raised a
number of issues about “harassment” and other things
that you believe are “issues” at TRM. TRM takes all of
these allegations seriously, but in order to address
them, I need to investigate them with you. As such, we
need to set down a time when you and I can meet, face to
face, to discuss these allegations in more detail. I am
available to meet with you on Wednesday the 16th. If
you are still uncomfortable speaking with me, we can set
up a meeting with Karli.
It is not clear from the evidence whether Ms. Morgan-Lee
responded immediately to Mr. Scott’s email, but she did send a
lengthy email to Ms. Rajagopal that afternoon, with a copy to
Mr. Scott, summarizing the meeting between Ms. Morgan-Lee and
Ms. Rajagopal at the Providence Place Mall on the preceding
Friday (November 4).
[See Ex. 27].
As noted above, she closed
by writing that “the meeting was ok and you seemed supportive of
my concerns and professional goals going forward.
thank you for lunch, your time and the shirt again.”
The following day, November 10, Ms. Morgan-Lee responded to
Mr. Scott, rehashing much of what she had previously written,
although she did not offer a time to meet.
She wrote, in part:
I absolutely informed you on the phone on Friday November
4, 2011 that my concerns were along the lines of
‘retaliation of internal whistle blowing’ and I informed
you that I felt being unfairly treated due to me
informing [Ms. Rajagopal] of certain findings.
were a few other issues discussed on this date, but I
did not extensively divulge as I informed you I needed
more time. [. . .]
I also spent much time with you on October 28, 2011 in
regards to harassing, disparaging, threatening, abusivem
manipulative and hostile work environment with [Ms.
Later that evening, seemingly in response, albeit in a
separate email chain, Mr. Scott again attempted to schedule a
meeting with Ms. Morgan-Lee, writing, in part:
As for the meeting regarding your concerns and
allegations, I would like to schedule it for Monday
[November 14, 2011]. Please notify me what time works
for you and I will make it available.
We take these
concerns very seriously and seeing as how you seem to
wish to get back to work, it is now time to address these
A further email from Ms. Morgan-Lee on the next day
(Friday, November 11) did not address the request to meet, so
Mr. Scott wrote back that afternoon:
I am asking again that you meet with me on Monday the
14th. This is a mandatory meeting. You have repeatedly
raised serious concerns and made some allegations and
they need to be documented in order that we proceed in
any way. [. . .]
Please let me know today what time you expect to be in
the office on Monday to go over your concerns.
Ms. Morgan-Lee responded to the November 11 email with a
time to meet, and Mr. Scott confirmed the meeting.
In that exchange, Ms. Morgan-Lee asked for Ms. Rajagopal to be
present at the meeting.
Mr. Scott responded that Ms.
Rajagopal would not be present because the meeting was intended
to address concerns about which Ms. Morgan-Lee had approached
him (presumably including Ms. Morgan-Lee’s perception that she
was being mistreated by Ms. Rajagopal).
The contemporaneous email traffic is difficult to square
with Ms. Morgan-Lee’s trial testimony, in which she contended
that she had contacted TRM’s owners (as discussed below) because
she “wanted them to look into the fraud and the abuse and what
was going on, which may be inclusive of Uma Rajagopal.”
Dkt. No. 342 p. 90].
If, as she testified, Ms. Morgan-Lee’s
intention was to expose Ms. Rajagopal as someone who was
complicit in fraud, it is difficult to understand why Ms.
Morgan-Lee requested Ms. Rajagopal’s attendance at the November
14 the meeting.
Conceivably, Ms. Morgan-Lee may have hoped that, in a
meeting with Ms. Rajagopal and Mr. Scott, she might air her
complaints about Ms. Rajagopal’s management, and that Ms.
Rajagopal would change her approach.
It seems more likely,
however, that Ms. Morgan-Lee simply hoped to follow up on the
conciliatory tone of her November 4 meeting with Ms. Rajagopal.
This would be consistent with Ms. Morgan-Lee’s email
acknowledging Ms. Rajagopal’s supportiveness at the November 4
[See Ex. 27].
Either way, Ms. Morgan-Lee’s request to
include Ms. Rajagopal signaled to TRM that Ms. Morgan-Lee’s
focus – at that time – was to address her working relationship
with Ms. Rajagopal, not to report Ms. Rajagopal for committing
or condoning fraud.
A few minutes after the email exchange to arrange the
meeting, Ms. Morgan-Lee emailed Mr. Scott again, this time
voicing her concerns about organizational changes and shifts in
job titles and responsibilities that Mr. Scott had just
announced in a separate email to TRM staff.
Morgan-Lee expressed concerns that another employee’s new role
overlapped too much with her own responsibilities and complained
about a “lack of acknowledgement that I have also requested many
professional roles and levels of growth over the last 2-3 years
[. . .] .”
She then reiterated her claim that she was
being retaliated against and harassed, giving as an example of
“harassment” that Ms. Rajagopal had continued to try to contact
her after Ms. Morgan-Lee abruptly left the meeting at Whittier
on October 27.
It is notable that Ms. Morgan-Lee saw “harassment” in a
supervisor’s attempts to follow up with her after she abruptly
left a meeting with a major client.
I also note that Ms.
Morgan-Lee’s description of “harassment” was coupled with her
evident concern that colleagues whom she saw as unworthy were
being promoted while she was not.
Against this backdrop, I find
it is more likely than not that Ms. Morgan-Lee’s emotional needs
and professional frustrations colored her perception of her
dealings with Ms. Rajagopal and others.
Ms. Morgan-Lee’s apparently skewed perception of the
interactions in her workplace does not mean that her claims of
fraud were necessarily inaccurate.
The evidence is insufficient
to make a finding on that score, and Ms. Morgan-Lee was not, in
any event, required to prove actual fraud at trial.
particular incidents that Ms. Morgan-Lee describes may have been
isolated events or they may have been exemplars of pervasive
Either way, she seems to have perceived harassment
in various communications and interactions where less nefarious
explanations are more probable.
There is no perfect vantage point that would allow a finder
of fact, years later, conclusively to ascribe responsibility for
the various failures of tact, diplomacy, and communication that
contributed to the deterioration of Ms. Morgan-Lee’s working
relationship with Ms. Rajagopal and others at TRM.
But there is
a dearth of credible evidence to suggest that the interactions
between Ms. Morgan-Lee and Ms. Rajagopal – however fraught they
might have been – reflected an intention by Ms. Rajagopal or
other managers at TRM to harass or punish Ms. Morgan-Lee for
Ms. Morgan-Lee Contacts the Owners
During the weekend before the planned meeting with Mr.
Scott, Ms. Morgan-Lee emailed Brian Pontolilo, one of TRM’s
owners, to offer to share her “concerns for [the] company[.]”
They spoke by phone for over 40 minutes in what Mr.
Pontolilo characterized as a “long, rambling conversation” in
which Ms. Morgan-Lee expressed “a lot of concerns about things
that were going on within the company and with some of the other
managers and complained a lot about the president of the company
[Dkt. No. 349 p. 31].
Despite the call’s
length, Ms. Morgan-Lee did not offer any specifics about
purported fraudulent activity.
[Dkt. No. 349 p. 44].
Pontolilo told Ms. Morgan-Lee that he was concerned by what she
said; however, because he was no longer involved in TRM’s
operations, he suggested that she call another of the owners.
[Dkt. No. 349 p. 35-36].
Following the conversation, Mr. Pontolilo emailed Armand
Bergeron and Ron Diurba, the other two owners, to ask for “a
comprehensive review by ownership of TRM’s billing and
He also suggested that the
owners should interview management employees “regarding work
environment allegations” and stated his concern “about reports
from within and outside of the company that indicate disparaging
remarks being made about clients and TRM owners.”
nature and breadth of the review requested by Mr. Pontolilo
indicates that he understood Ms. Morgan-Lee to have raised
serious concerns about TRM’s billing practices. 12
Mr. Pontolilo’s email to the other owners of TRM made no
reference to any claims of fraud on the part of Ms. Morgan-Lee.
In his testimony at trial, he did not recall whether she had
made any mention of fraudulent billing practices during their
In response to Mr. Pontolilo’s email, Mr. Diurba wrote that a
comprehensive review was already underway, and noted that Mr.
Scott and Charles Blackman, another attorney for TRM, were
planning to meet with Ms. Morgan-Lee that morning. [Ex. 53].
Mr. Pontolilo testified that an investigation was, in fact,
conducted and that it did not find anything improper. [Dkt. No.
349 p. 40].
[Ex. 53; Dkt. No. 349 p. 38].
It stands to reason
that, had Ms. Morgan-Lee clearly and explicitly claimed fraud in
that call, it would have been memorable to Mr. Pontolilo, whom I
In light of all the evidence, I find that Ms.
Morgan-Lee either did not claim fraud in her call with Mr.
Pontolilo or did so in a manner so unfocused as to be
unrecognizable as such.
In the welter of Ms. Morgan-Lee’s
grievances, allegations of fraud may have been included, but I
credit Mr. Pontolilo’s testimony that such allegations were not
readily identified as such.
After speaking to Mr. Pontolilo, Ms. Morgan-Lee also
telephoned Mr. Diurba that weekend, although their conversation
was short because he was driving.
[Dkt. No. 342 p. 85].
suggested that she should email Mr. Scott to “streamline” what
she wished to speak about in her meeting with Mr. Scott on the
upcoming Monday, November 14.
[Id. p. 4].
On Sunday evening, November 13, Ms. Morgan-Lee sent an
email to Mr. Diurba and Mr. Scott, which included “an outline of
what I would like to discuss[.]” [Ex. 9].
Although that email
included a line item for “Fraud and abuse concerns[,]” this was
plainly identified as part of a recitation of headings from
TRM’s policy and procedure manual.
Beneath those headings, Ms.
Morgan-Lee listed various areas of concern, including several
that – at least arguably – could constitute fraud or abuse
within the ambit of the FCA: “Possible inappropriate billing
practices[,]” “Moving therapists around who may be billing
inappropriately[,]” and “Altered documentation during ADR
The email also asserted that she
was “concerned with the negative consequences, possible
retaliation due to internal type whistle blowing while
performing [her] expected professional responsibilities[.]”
Ms. Morgan-Lee Meets with Mr. Scott and Attorney Blackman
and Declines to Identify Instances of Fraud
Shortly before the meeting between Ms. Morgan-Lee and Mr.
Scott on Monday, November 14, management at TRM decided to
invite Attorney Blackman to the meeting.
[Dkt. No. 350 p. 69–
Ms. Morgan-Lee testified at trial that, upon her arrival,
she was “blindsided and shocked” that there was an attorney
present, and she initially indicated that she wanted to
[Dkt. No. 342 p. 6–10, 94].
went forward and lasted around two hours.
The meeting eventually
[Dkt. No. 350 p. 40].
At the meeting, Ms. Morgan-Lee declined to discuss her purported
concerns about fraud.
Instead, Mr. Scott testified, she
focused on “work-related stress, sick leave, attendance issues,
her concerns about a hostile work environment, and Ms.
Rajagopal, in particular.”
During the meeting, both Mr. Scott and Attorney Blackman
repeatedly requested that Ms. Morgan-Lee provide details about
her claims of fraud to enable an investigation by TRM, but she
refused, stating that she was “uncomfortable” with the meeting.
[Dkt. No. 342 p. 11–12; Dkt. No. 350 p. 38].
Morgan-Lee testified, she directed Mr. Scott and Attorney
Blackman to ask Ms. Rajagopal.
[Dkt. No. 342 p. 11–12].
end of the meeting, Mr. Scott instructed Ms. Morgan-Lee to take
the remainder of the week off, with pay.
[Id. p. 65–66].
On Sunday, November 20, Ms. Morgan-Lee sent a long and
disorganized email to Mr. Scott and TRM’s owners.
[See Ex. 11].
In that email she (inter alia) rehashed her perception that
TRM’s management was hostile to her, complained that she did not
have access to the TRM time entry system, expressed frustration
about unclear expectations and what she saw as double standards,
complained about the promotion of employees whom she saw as less
capable than herself, and complained that she did not have a TRM
In the same email, Ms. Morgan-Lee suggested sweeping audits
of various corporate records to address what she called “HR/
hourly labor/payroll issues[.]”
She noted that some
salaried employees routinely entered their daily time (8 hours)
before the close of business.
On this basis she
wrote, “I suggest and recommend that all 8 years of salaried
employees timesheet be audited,” along with an 8-year audit of
the timesheets of all hourly employees, “by outside independent
Closer to the subject of possible fraud, Ms. Morgan-Lee
offered an oblique comment, writing “As you are aware, I have
the information to be shared re: my other concerns with
billing/documentation etc., in the appropriate forum with the
appropriate objective personnel who support all parties
She did not make any more direct reference
to fraud or indicate that the “billing/documentation” issues in
question were outside the ordinary scope of her oversight
She did, however, recommend that the company
retain outside consultants to investigate the company’s
practices on site at “at least 25” nursing homes through
unannounced visits, albeit without specifying any particular
facilities that warranted such scrutiny.
Mr. Scott responded to Ms. Morgan-Lee’s email, writing that
the company would continue her paid leave because she and he had
been unable to discuss her allegations, and requesting that she
schedule another meeting with him and Attorney Blackman.
She responded, declining to schedule a meeting until she
had her own attorney.
Ms. Morgan-Lee’s Termination
Two days later, on November 22, Mr. Scott sent Ms. Morgan-
Lee a letter telling her that it was time for her to
“transition” to the “next phase” of her career.
After summarizing the events of the preceding weeks, Mr. Scott
addressed Morgan-Lee’s November 20 email:
Despite your allegations in your email about suffering
from “harassment” and “retaliation,” it is clear that
you are still complaining about TRM’s work environment
and the difficulties you have working with [Ms.
Rajagopal], as well as the Directors, in performing your
job duties. You again make vague allegations to unlawful
“billing practices,” but you again fail to support these
allegations. It is troubling because in your position
in TRM for the past eight years, you have been
responsible for reviewing the billing and challenging
denials [of payment by Medicare]. If there were problems
in the billing practices that amounted to “fraud,” it
was incumbent on you to review and rectify those
Mr. Scott also specifically responded to the request for
an outside audit that Ms. Morgan-Lee had made in her November 20
You make this broad, unnecessary and unsupported request
despite the fact that (1) you have failed to identify
any specific acts of wrongdoing or improper billing, and
(2) you have been the Director of Clinical Services for
eight years and you are fully aware of the billing
practices of TRM.
Without providing any support, it
again simply appears that you are “stirring the pot” in
an attempt to undermine [Ms. Rajagopal]’s ability to
The letter reiterated that TRM remained interested in
investigating any specific claim of wrongdoing, repeated that
Mr. Scott and Attorney Blackman wished to meet with Ms. MorganLee, and noted that the company could not investigate without
In the final paragraphs of the letter, Mr. Scott noted Ms.
Morgan-Lee’s stress, her difficulty working with others at TRM,
her refusal to take FMLA leave, and her issues with taking days
off with little notice.
He concluded, “Given these
facts, it is apparent that the best way to resolve these issues
is to work with you to transition you to the next phase of your
The letter closed by extending Ms. Morgan-
Lee’s paid leave beyond Thanksgiving to allow discussion of the
matter after the holiday.
On November 29, 2011, TRM’s employment counsel, Attorney
Lewis, sent a letter to Ms. Morgan-Lee stating that TRM was
terminating her employment effective December 2, 2011, and
offering her a severance package.
She declined that
IV. CONCLUSIONS OF LAW
To prevail on her FCA retaliation claim, Ms. Morgan-Lee
must prove by a preponderance of the evidence (1) that her
conduct was protected under the FCA; (2) that TRM knew about her
protected conduct; and (3) that TRM “discharged or discriminated
against [her] because of [her] protected conduct.”
Shields, 913 F.3d 178, 187–88 (1st Cir. 2019) (quoting U.S. ex
rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 235 (1st
Cir. 2004) (abrogation on other grounds recognized by U.S. ex
rel. Gagne v. City of Worcester, 565 F.3d 40, 42 (1st Cir.
There is no requirement that Ms. Morgan-Lee prove a
violation of the false claims provisions of the FCA.
Protected activity “is limited to activities that
‘reasonably could lead’ to an FCA action; in other words,
investigations, inquiries, testimonies or other activities that
concern the employer’s knowing submission of false or fraudulent
claims for payment to the government.”
Karvelas, 360 F.3d at
237 (quoting U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d
731, 740 (D.C. Cir. 1998)).
By contrast, complaints about mere
regulatory failings or violations of company policy cannot
provide a predicate for a retaliation claim under the FCA.
id. (“Although ‘[c]orrecting regulatory problems may be a
laudable goal,’ it is ‘not actionable under the FCA in the
absence of actual fraudulent conduct.’” (alteration in original)
(quoting U.S. ex rel. Hopper v. Anton, 91 F.3d 1261, 1269 (9th
Cir. 1996))). 13
In cases where reporting fraud was part of a plaintiff’s
regular job duties, the plaintiff’s actions must go beyond
merely doing her job to be considered protected activity.
Bennett v. Abiomed, Inc., No. 13-CV-12277-IT, 2020 WL 1429847,
at *6 (D. Mass. Mar. 24, 2020) (“[W]here an employee’s job
duties include overseeing government billings or payments,
protected conduct does not include the scope of conduct that
fall[s] within the employee’s regular duties.”); see Karvelas,
360 F.3d at 239 n.26 (“Some courts have held that employees who
investigate government billings or payments as part of their job
duties must ‘make it clear that the employee’s actions go beyond
the assigned task’ in order to demonstrate that they were
engaged in protected conduct and their employers were on notice
of that conduct.” (quoting Eberhardt v. Integrated Design &
Const., Inc., 167 F.3d 861, 868 (4th Cir. 1999))).
Although the First Circuit has embraced the distinction
between potential FCA claims and mere regulatory concerns, it
has also noted that a plaintiff claiming retaliation is not
required to prove “actual fraudulent conduct.” See Karvelas,
360 F.3d at 238 n.23 (“A retaliation claim under 31 U.S.C.
§ 3730(h) does not require a showing of fraud [. . .] .”).
I find that Ms. Morgan-Lee has established by a
preponderance of the evidence that she engaged in protected
The question is clouded somewhat by the fact that her
communications indiscriminately conflated matters that may be
subject to whistleblower protection with matters that plainly
Ms. Morgan-Lee’s communications about her findings feature
a varied and shifting array of recommendations about regulatory
problems unrelated to potential fraudulent billing.
for much of the period in question, her major focus was
implementation of new billing procedures in anticipation of
upcoming Medicare rule changes; that the new rules had not yet
taken effect undercuts any suggestion that slowness in adapting
to the announced change was tantamount to fraud.
Even further afield are Ms. Morgan-Lee’s repeated, and
sometimes strident, reports about instances when therapists
provided services before 7 a.m. or after 7 p.m., and her reports
about the way salaried employees completed their timesheets.
These may have been violations of TRM policy, but they do not
seem to have anything to do with false or fraudulent Medicare
There was little developed evidence about the
source or purpose of TRM’s 7-a.m.-to-7-p.m. policy, 14 but it
seems to be a matter of private concern to TRM, with no impact
on the applications for Medicare reimbursement filed by TRM’s
Although Ms. Morgan-Lee’s reporting on regulatory
deficiencies and violations of TRM rules cannot be considered
protected activity, Karvelas, 360 F.3d at 237, she also focused
significant attention on billing issues, which do implicate
concerns about potential FCA violations.
Her emails with Ms.
Rajagopal express concerns about TRM’s billing practices, and
her emails with Mr. St. Jacques point to specific instances in
which billing practices might reasonably be expected to lead to
inaccurate or misleading reimbursement claims.
instances also support the inference that Ms. Morgan-Lee’s
later, less-detailed communications with Mr. Scott and with
TRM’s owners were aimed at raising concerns about improper
billing practices that could ultimately contribute to FCA
It appears that work done outside of TRM’s ordinary workday
may have obligated the company to pay overtime rates. One of
Ms. Morgan-Lee’s notations also implies that she was concerned
about patients being too fatigued to receive treatment if
therapists treated them at odd hours. [See Ex. 33 (“Deb, OTR,
still in building very late at night, one patient missed Rx ‘due
to fatigue’ Sat pm (she was there til 1030pm)[.]”)].
The fact that Ms. Morgan-Lee’s first call to a TRM owner
(Mr. Pontolilo) sparked him to request a comprehensive review by
ownership of TRM’s billing and documentation practices,
reinforces Ms. Morgan-Lee’s contention that the issues she was
raising went beyond mere regulatory or internal company policy
Importantly, the fact that Ms. Morgan-Lee went
outside of her typical reporting structure and communicated
directly with TRM’s owners demonstrates that she exceeded her
assigned duties and thus engaged in protected conduct, even
under the heightened standard applicable to employees whose
regular duties include overseeing government billing or
I note, however, that the evidence before me
does not show that Mr. Pontolilo knew or believed at that time
that the issues raised to him by Ms. Morgan-Lee, however
serious, involved fraud.
To be subject to the anti-retaliation protections of the
FCA, an employee need not expressly invoke the FCA.
All that is
required is that the substance of the employee’s investigation
or reporting must be foreseeably linked to potential false or
fraudulent submissions to the government.
Cf. Yesudian, 153
F.3d at 741 (“The protected conduct itself is simply ‘acts done
. . . in furtherance of an action under this section,’ and even
an investigation conducted without contemplation of — or
knowledge of the legal possibility of — a False Claims Act suit
can end up being ‘in furtherance’ of such an action.”
(alteration in original) (quoting 31 U.S.C. § 3730(h))).
The fact that many of Ms. Morgan-Lee’s reports are poorly
organized and mix protected topics with unprotected ones is
relevant in drawing inferences about the reasons that she was
But the evidence is clear that some of Ms. Morgan-Lee’s
communications addressed potential false claims for payment
within the meaning of the FCA, and that some of her
communications clearly went outside of her usual duties.
Accordingly, I find and conclude she has shown by a
preponderance of the evidence that she engaged in protected
To prove that an employer had knowledge of an employee’s
protected activity, the employee need only show that the
employer had “general corporate knowledge” of the activity.
Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000)
(“Neither this nor any other circuit has ever held that, to
satisfy the knowledge requirement, anything more is necessary
than general corporate knowledge that the plaintiff has engaged
in a protected activity.”); see also Harrington v. Aggregate
Indus. Ne. Region, Inc., 668 F.3d 25, 32 (1st Cir. 2012)
(holding, in the context of a motion for summary judgment, that
“the fact that high-level [. . .] executives learned of the
appellant’s whistleblowing several months before his firing
suffices to show knowledge”).
There is no requirement that the employer recognize that
the employee might bring an FCA action or even that the employer
know of the FCA.
Rather, it is adequate for a plaintiff
employee to show that the employer knew that the employee was
engaged in “investigation or other activity concerning false or
fraudulent claims that the employer knowingly presented to the
federal government.” 15
Karvelas, 360 F.3d at 239.
The First Circuit has recognized that the standard for
establishing employer knowledge that an employee was engaged in
protected activity is different “where an employee’s job
responsibilities involve overseeing government billings or
Maturi v. McLaughlin Rsch. Corp., 413 F.3d 166, 173
(1st Cir. 2005).
When an employee has such responsibilities,
the employee’s “burden of proving that [her] employer was on
notice that [she] was engaged in protected conduct should be
Although TRM did not submit claims directly to the government,
it was well-understood throughout the organization that its
billings would ultimately become part of Medicare reimbursement
requests. A submission to the government need not be direct to
establish liability for a false claim under the FCA. See
Guilfoile, 913 F.3d at 187 (“A ‘non-submitting’ entity that
knowingly causes the submission of a false claim may be liable
under the FCA even if the entity directly submitting the claim
to the government lacks the requisite mental state.”).
The employee “must make it clear that [her]
actions go beyond [her] regular duties to establish that [her]
employer was on notice that [she] was engaged in protected
Id. at 172-73.
For employees, like Ms. Morgan-Lee, with auditing or fraudreporting responsibilities, “such an employee can put [her]
employer on notice by ‘any action which [. . .] would put the
employer on notice that [FCA] litigation is a reasonable
Id. at 173 (final alteration in original)
(quoting Eberhardt v. Integrated Design & Const., Inc., 167 F.3d
861, 868 (4th Cir. 1999)).
“Employees subject to the heightened
burden ‘must make clear their intentions of bringing or
assisting in an FCA action in order to overcome the presumption
that they are merely acting in accordance with their employment
Id. (quoting U.S. ex rel. Ramseyer v. Century
Healthcare Corp., 90 F.3d 1514, 1523 n.7 (10th Cir. 1996)).
There is no question that TRM knew about Ms. Morgan-Lee’s
efforts to identify and remedy billing failures at TRM and that
TRM knew such billing failures could lead to the submission of
false or fraudulent claims for Medicare reimbursement.
awareness, however, is not necessarily the same thing as knowing
that Ms. Morgan-Lee was engaged in protected activity.
all, Ms. Morgan-Lee’s ordinary job responsibilities included
conducting audits and reporting potential fraud.
This is the
very reason for the heightened standard required under the First
Circuit’s Maturi decision.
That routine duties of auditors include detecting and
reporting fraud does not turn every auditor into an FCA
Auditors are not afforded greater protections
from adverse employment actions than other at-will employees
merely because their ordinary duties may include reporting about
matters that are subject to the FCA.
In deciding whether Ms. Morgan-Lee’s actions gave TRM
notice of the possibility of FCA litigation and thus met the
heightened standard of Maturi, I give substantial weight to her
specific references to whistleblower protections as such.
Although it is not clear whether she or TRM knew precisely which
statutory protections she was invoking, knowledge of the FCA is
not required for whistleblower protection.
Karvelas, 360 F.3d
at 238 (“[J]ust as the plaintiff is not required to know that
his investigation reasonably could lead specifically to a False
Claims Act action, the employer need not know that the employee
has filed or plans to file a qui tam action, nor even
necessarily be aware of the existence of the FCA.”).
Ms. Morgan-Lee’s references to whistleblower protections in
her emails to Mr. Scott gave the company general corporate
knowledge that she was engaging in something beyond her ordinary
duties as an internal auditor and that she was considering
bringing or assisting in a suit alleging FCA violations.
Maturi, 413 F.3d at 173.
Accordingly, even under the heightened burden associated
with her position as an employee with audit responsibilities, I
find and conclude that Ms. Morgan-Lee has shown by a
preponderance of the evidence that she provided TRM with general
corporate knowledge of her protected activity.
audit responsibilities were a part of her regular job, her
references to fraud and whistleblower protections were
sufficient to put TRM on notice that she was engaged in
protected activity beyond the scope of her typical duties.
The chronology of these communications is significant.
Morgan-Lee’s earliest references to “whistle blowing” date to
the beginning of November 2011, 16 after Mr. Scott and Ms.
Rajagopal had already begun conferring about how to respond to
As noted above, in an email dated November 10, 2011, Ms.
Morgan-Lee asserted to Mr. Scott that, “I absolutely informed
you on the phone on Friday November 4, 2011 that my concerns
were along the lines of ‘retaliation of internal whistle
blowing’ and I informed you that I felt being unfairly treated
due to me informing Uma of certain findings.” [Ex. 28]. By
this account, November 4, 2011, would be Ms. Morgan-Lee’s
earliest reference to “whistle blowing.” I do not find Ms.
Morgan-Lee’s reconstruction of the November 4, 2011, telephone
conversation fully credible. In the final analysis, this does
not change my ultimate finding that she provided TRM with
general corporate knowledge of her protected activity before the
allegedly retaliatory action took place.
Ms. Morgan-Lee’s repeated absences.
beginning November 1, 2011)].
[See Ex. 40 (email chain
Indeed, Ms. Morgan-Lee
acknowledged in her trial testimony that she had not even used
the term “fraud” in her communications with Mr. Scott as of
October 28, 2011, but had referred only to “improper billing.”
[See Dkt. No. 349 p. 76].
As discussed below, this timing
strongly undercuts any inference that the problem of her
unexpected absences was raised as a pretext or that Ms. MorganLee was discharged “because of” her protected activity.
Under 31 U.S.C. § 3730(h), an employee is entitled to
relief if she was discharged “because of” her lawful actions
taken in furtherance of an FCA suit or other efforts to stop an
31 U.S.C. § 3730(h).
This language imposes a
but-for standard of causation in FCA retaliation cases.
Lestage v. Coloplast Corp., 982 F.3d 37, 46 (1st Cir. 2020)
(“[R]etaliation claims under the False Claims act must be
evaluated under the but-for causation standard.”).
Ms. Morgan-Lee can prevail on her retaliation claim only if
she can demonstrate that, but for her FCA-protected activity,
she would have kept her job.
As discussed above, I have found that some portion of Ms.
Morgan-Lee’s reporting concerned allegations of billing
irregularities that would fall within the ambit of the FCA.
have found, further, that her communications – though poorly
organized – were sufficient to put her employer on notice that
she considered the issues to be serious to a degree that
exceeded her ordinary job duties.
Thus, the evidence is
sufficient to make out the first two elements of a retaliation
The question, then, is whether Ms. Morgan-Lee would have
been retained at TRM but for her protected conduct.
I find and
conclude that the answer is no.
While some of Ms. Morgan-Lee’s communications rose to the
level of protected activity, the evidence does not persuade me
that it was her protected activity that led to her firing.
Considering the record of contemporaneous emails and weighing
the witnesses’ testimony, what stands out is that other factors
— factors that readily warranted discipline or discharge — were
far more critical than any suggestion of protected activity.
There are, undoubtedly, cases in which even a modest
showing of protected activity may support an inference of
retaliation, particularly when the timing is suspicious and when
there are no other explanatory factors.
But this is not such a
Ms. Morgan-Lee had been raising concerns about billing
practices for many months – she says years – before there was
any hint of disciplinary concerns.
On the contrary, her
supervisor, Ms. Rajagopal, went to some lengths to retain Ms.
Morgan-Lee as an employee and to support Ms. Morgan-Lee’s
efforts to improve TRM’s practices and procedures.
Even if Ms.
Rajagopal’s support may have been intermittent or may have
fallen short of what Ms. Morgan-Lee expected, the evidence does
not show that Ms. Rajagopal had any intention to fire — or
otherwise retaliate against — Ms. Morgan-Lee in a manner
actionable under the FCA.
Friction between Ms. Morgan-Lee and Ms. Rajagopal was
escalated to become an “HR” matter only after Ms. Morgan-Lee
repeatedly missed work on minimal notice.
Even then, TRM
officials explored whether some form of extended leave or
accommodation might be appropriate.
Thereafter, Ms. Morgan-Lee
effectively ensured her discharge by refusing to engage with Mr.
Scott and by refusing to give details of her claimed findings of
An employer would not be required to retain an
employee who responded in that manner; it is, after all, an
auditor’s job to report her findings.
The evidence demonstrated that there were several key
factors that led to Ms. Morgan-Lee’s discharge, none of which
implicate protected activity.
I find that she was fired for
these reasons, not in retaliation “because of” her investigation
or reporting of any potential violations of the FCA.
that evidence below.
Testimony and exhibits showed that Ms. Morgan-Lee was
highly dedicated to her work and cared very much that the
company follow its own policies and the law.
The record also
shows, however, that she behaved towards her colleagues and
superiors in a way that TRM management could reasonably have
viewed as unproductive and disruptive.
She sent long emails to
colleagues at all hours of day and night; she repeatedly
insulted the capabilities of her coworkers while insisting that
the culture of speaking ill of coworkers was making her sick
with stress; she repeatedly responded to only parts of work
emails, ignoring questions asked of her; and she often failed to
differentiate real fraud concerns from generalized gripes about
corporate operations or interpersonal issues.
challenges impeded Ms. Morgan-Lee’s efforts to convey her
I am not called upon in this case to determine who is
ultimately “at fault” in the deterioration of the working
relationship between Ms. Morgan-Lee and her colleagues at TRM.
Ms. Morgan-Lee’s own written communications are frequently
jumbled, but some of Ms. Rajagopal’s are difficult to follow as
Furthermore, there is scant basis on which to reliably
reconstruct the oral conversations between Ms. Morgan-Lee and
Ms. Morgan-Lee was adamant in her testimony that she was
subjected to retaliatory harassment.
Based on evidence
discussed above, however, I find that her perceptions were
Key discrepancies in the evidence suggest
that some of Ms. Morgan-Lee’s testimony about interactions with
her colleagues is unreliable.
The most notable discrepancies
are in Ms. Morgan-Lee’s account of the meeting on October 28, an
account that was directly contradicted by Mr. Scott’s credible
Ms. Morgan-Lee described a profane tirade in which
Ms. Rajagopal purportedly threatened anyone with “the F-ing
balls to report fraud.” [See Dkt. No. 349 p. 75].
difficult to square Ms. Morgan-Lee’s account with her
acknowledgement that she did not even use the word “fraud” when
speaking to Mr. Scott about the meeting later the same day.
[See id. at 76].
Moreover, given the large number of people
present at the meeting, the absence of corroborating testimony
In a similar vein, Ms. Morgan-Lee contended that her
purpose in October and November was to report fraud committed or
condoned by Ms. Rajagopal.
This is difficult to square with her
contemporaneous email requesting that Ms. Rajagopal attend the
November 14 meeting with Mr. Scott.
[See Ex. 47].
Even if Ms. Rajagopal and other senior personnel from TRM
were inept in their management of Ms. Morgan-Lee, the evidence
does not show that they were animated by retaliatory motives.
find by a preponderance of the evidence that the communications
and interactions that Ms. Morgan-Lee saw as personal attacks and
harassment were attempts – whether skillful or not – to manage
While the tone of some interactions was fraught,
Ms. Morgan-Lee has not shown that TRM or its managers set out to
harass her, let alone that their intentions were retaliatory.
Ms. Morgan-Lee’s behavior before October 27, 2011, would
itself have provided a valid, nonretaliatory reason to fire her,
and it doubtless contributed to her eventual termination.
evidence shows, however, that the issue that ultimately
motivated TMR to dismiss Ms. Morgan-Lee was a combination of her
repeated unexcused absences from work in the weeks preceding her
firing and her unwillingness to provide TRM with details of the
fraud that she claimed to have found.
As for Ms. Morgan-Lee’s absences, the communications to her
from Mr. Scott and from TRM’s attorneys made clear that her
unexcused right to absences were a significant issue.
spelled out explicitly that TRM needed a Director of Clinical
Services who would be reliably available to discharge the duties
of the position, and that she could not remain in the position
if she continued to take unannounced leave.
absences were unquestionably a fireable offense, and I find and
conclude that they were a central cause of her dismissal.
Ms. Morgan-Lee’s first invocation of “whistleblower”
protections, on November 4, at the earliest, would have put her
employer on notice that her fraud claims went beyond her
ordinary reporting responsibilities.
But that came only after
her unscheduled absences had been identified as a serious
Ms. Morgan-Lee’s unwillingness to provide details necessary
for TRM to investigate her claims, came roughly at the same time
as she asserted her status as a “whistleblower.”
In any event,
Mr. Scott credibly testified that Ms. Morgan-Lee refused to
provide him with any specific examples of the fraudulent conduct
to which she continually referred.
In her own testimony, and in
contemporaneous emails, Ms. Morgan-Lee acknowledged as much.
She was a senior employee tasked with auditing records and
detecting billing issues.
findings in that arena.
It was her job to report significant
It was unquestionably a dereliction of
her duties to spend weeks asserting that she had found fraud and
then refuse to provide details to company executives and company
Her refusal to cooperate with TRM management in this
primary facet of her duties was, too, a fireable offense that
was central to her dismissal.
I note that Ms. Rajagopal and the owners of TRM appeared to
care about billing properly and that they went to significant
lengths to continue working with Ms. Morgan-Lee, even though she
was challenging as a colleague.
Ms. Rajagopal sent several
emails to her team admonishing them that they needed to put more
effort into billing correctly, and representatives of the
company, including one of the owners, spent considerable time
speaking with Ms. Morgan-Lee to seek details about the
fraudulent practices that she claimed to have uncovered.
of the correspondence in evidence suggests that management at
TRM sought to oust Ms. Morgan-Lee to prevent her from raising
her concerns, or to punish her for raising them.
The testimony and the contemporaneous correspondence that
was offered in evidence reflect a near-total breakdown in the
relationship between Ms. Morgan-Lee and her peers and
Firing a worker because of a breakdown in the
employment relationship is legitimate and nonretaliatory.
Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 73 (1st Cir. 1984)
(“[A]n inability to get along with people is a legitimate nondiscriminatory reason for firing an employee.”); see also Ridge
v. Cape Elizabeth Sch. Dep’t, 77 F. Supp. 2d 149, 158 (D. Me.
1999) (employee’s “inability to work productively with her
supervisor” was a legitimate, nondiscriminatory reason for
Ms. Morgan-Lee’s contemporaneous emails also reflect her
own assessment that she was too stressed to do her job
This, too, is a legitimate, nonretaliatory reason
for firing her.
Candelore v. Clark Cty. Sanitation Dep’t, 975
F.2d 588, 591 (9th Cir. 1992) (per curiam) (legitimate,
nondiscriminatory reason for transferring work responsibilities
to another employee was that plaintiff “was suffering from job
One can imagine circumstances in which an employer’s
efforts to squelch protected FCA activity could take the form of
a long-term campaign of harassment, producing stress that
diminishes an employee’s performance and results in her firing. 17
The evidence in this case, however, does not support any such
The communications that Ms. Morgan-Lee decried as
“undermining” her efforts were fully consistent with a goodfaith effort to acknowledge and implement an auditor’s
recommendations, while simultaneously attempting to maintain an
appropriate separation of authority between the company’s
operational and auditing functions.
I have considered the scope of the written evidence, the
plausibility and consistency of the witnesses’ testimony, and
the demeanor of the testifying witnesses.
I find and conclude
If such a campaign of harassment were to cause an employee to
quit, it would be a constructive dismissal.
that Ms. Morgan-Lee has not sustained her burden of proving by a
preponderance of evidence that she was subjected to adverse
employment action as retaliation for her protected FCA activity,
whether in the initial period of heightened friction (from
Spring of 2011 forward) or in the period from the end of October
through her dismissal in early December of 2011.
In sum, TRM had multiple legitimate, nonretaliatory reasons
to fire Ms. Morgan-Lee, and it is more likely than not that one,
or some combination, of those reasons was the cause of her
In light of all the evidence developed over the
course of two trials, I find that Ms. Morgan-Lee has not shown
by a preponderance of the evidence that her protected activity
was a but-for cause of her termination.
Ms. Morgan-Lee also alleges that TRM violated the Rhode
Island Whistleblowers’ Protection Act (RIWPA), R.I. Gen. Laws §§
28-50-1 to -9.
In relevant part, the RIWPA provides as follows:
An employer shall not discharge [. . .] an employee
[. . .] [b]ecause the employee reports verbally or in
writing to the employer or to the employee’s supervisor
a violation, which the employee knows or reasonably
believes has occurred or is about to occur, of a law or
regulation or rule promulgate under the laws of this
state [. . .] or the United States [. . .].
28 R.I. Gen. Laws Ann. § 28-50-3.
There has been little
litigation of the RIWPA, and there is no binding decision as to
what causation standard the RIWPA applies.
One federal case
explains that the statute requires a “‘substantial nexus’
between the protected report of a violation by the employee and
the adverse employment action, which must be based on more ‘than
Chagnon v. Lifespan Corp., No. CV 15-493S,
2017 WL 3278952, at *7 (D.R.I. June 19, 2017) (quoting Belanger
v. A & F Plating Co., No. Civ. A. 98-2339, 2002 WL 1288782, at 4
(R.I. Super. Ct. June 7, 2002)).
Despite this somewhat unusual turn of phrase — more than
pure speculation — appearing in a few cases, it appears that
courts generally interpret the RIWPA using the same frameworks
that apply to the interpretation of the FCA.
motions for summary judgment, courts interpreting the RIWPA
apply the familiar burden-shifting framework from McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973), that
applies to FCA summary judgment determinations.
668 F.3d at 31 (adopting the McDonnell Douglas framework for FCA
cases in the First Circuit); Chagnon at *7 (applying the
McDonnell Douglas framework); Chapman v. R.I. Veterans’ Home,
No. 01-4767, 2001 WL 36410316, at *3 (R.I. Super. Ct. Sept. 19,
Rhode Island courts typically then apply a but-
for standard of causation, explicitly or implicitly.
Chapman, 2001 WL 36410316, at *7 (“In other words, the jury had
to determine whether Plaintiff, despite all of her alleged
mistakes and missteps, would not have been subject to discipline
and termination ‘but for’ her reporting activity.”).
I am persuaded that, as a matter of Rhode Island law, the
use of the term “because” in the RIWPA means essentially the
same thing as the term “because of” in the FCA.
Ms. Morgan-Lee’s retaliation claim under the RIWPA must fail in
light of my conclusion that Ms. Morgan-Lee has not proven that
her protected FCA whistleblowing activity was a but-for cause of
her discharge from TRM.
Accordingly, Ms. Morgan-Lee has not
proven by a preponderance of the evidence that she was
terminated in violation of the RIWPA.
For the reasons set forth above, I find that Ms. Morgan-Lee
has not shown by a preponderance of the evidence that she was
terminated from her position at TRM because of activity
protected by the FCA or by the RIWPA.
Accordingly, I direct
judgment for defendant TRM.
/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
United States District Judge
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