Poffinbarger v. Priority Health et al

Filing 23

MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendants' motion for partial dismissal 11 . The motion is denied with respect to Defendants' request that paragraphs 64-72 be removed from Plaintiff's complaint. The motion is granted with respect to Defendants' request that the Court dismiss any post-termination claims arising from these paragraphs. Any post-termination retaliation claims alleged in paragraphs 64-72 of Plaintiffs complaint are DISMISSED; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JILL POFFINBARGER,
Plaintiff,
CASE NO. 1:11-cv-993
v.
HON. ROBERT HOLMES BELL
PRIORITY HEALTH, a Michigan
Domestic Nonprofit Corporation, and
PRIORITY HEALTH MANAGED
BENEFITS, INC., a Michigan Domestic
Corporation,
Defendants.
_________________________________/
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ motion for partial dismissal under Federal
Rule of Civil Procedure 12(b)(6). Defendants request that the Court dismiss paragraphs 64-72 from
Plaintiff’s complaint, and any claims which may be based on those paragraphs. For the reasons that
follow, Defendants’ motion will be granted in part.
Prior to filing this action, Plaintiff commenced an action in the Kent County Circuit Court
against Defendants alleging that the termination of her employment violated the Michigan
Whistleblower Protection Act and Michigan public policy. The present complaint presents similar
allegations under the “Relief from Retaliatory Action” provision of the False Claims Act, 31U.S.C.
§ 3730(h). However, in addition to her claim of retaliation in the form of terminated employment,
Plaintiff also claims that Defendants further retaliated against her by (1) threatening to take legal
action in state court to recover allegedly confidential information which Plaintiff apparently obtained

during the course of her employment, and (2) raising an affirmative defense in state court based on
the after-acquired evidence doctrine.1
Defendants argue that these additional retaliation claims should be dismissed because they
occurred after Plaintiff’s termination of employment, and because they do not constitute an adverse
action. The Court agrees. The False Claims Act unambiguously limits retaliation claims to adverse
actions taken “in the terms or conditions of employment.” 31 U.S.C. 3730(h)(1). The allegedly
retaliatory threats of legal action and affirmative defense raised by Defendants clearly are not actions
affecting the terms or conditions of employment. Furthermore, even if the FCA did not limit
retaliation claims to conditions of employment, the Court finds that neither legal posturing nor the
raising of an affirmative defense in ongoing state court litigation initiated by Plaintiff constitute an
adverse action. See Harmar v. United Airlines, Inc., 1996 WL 199734 (N.D. Ill.) (“Raising the
affirmative defense did not cause plaintiffs to incur the expense of hiring counsel to respond to a
lawsuit; they were already represented and already engaged in litigation . . . Presenting an affirmative
defense, even a frivolous one, will not support a retaliation claim.”). If Plaintiff believes that the
legal arguments or defenses raised by Defendants in state court are frivolous, her appropriate
recourse lies with the state court judge.
As the Court has determined that the FCA cannot support a claim of retaliation for postemployment legal positions taken in an ongoing state court action, the Court will grant Defendants’
motion with respect to these claims. However, the Court will deny Defendants’ request to strike
paragraphs 64-72 from Plaintiff’s complaint. Although these paragraphs do lay out the foundation
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Under McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), an employer’s posttermination discovery of evidence that would have caused it to terminate an employee had it
discovered the evidence sooner can bar certain remedies.
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for the added retaliation claims being dismissed, they may also contain factual information relevant
to Plaintiff’s claim for injunctive relief or for her remaining retaliation claim. Therefore, the Court
will not strike these paragraphs from Plaintiff’s complaint, but will dismiss any post-termination
claims of retaliation they may assert. Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion for partial dismissal is GRANTED
IN PART and DENIED IN PART. Defendants’ request that paragraphs 64-72 be removed from
Plaintiff’s complaint is DENIED. However, Defendants’ request that the Court dismiss any posttermination claims arising from these paragraphs is GRANTED.
IT IS FURTHER ORDERED that any post-termination retaliation claims alleged in
paragraphs 64-72 of Plaintiff’s complaint are hereby DISMISSED.

Dated: December 13, 2011

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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