Guerrero v. Total Renal Care, Inc.

Filing 44

ORDER DENYING 37 Motion to Strike ; DENYING 23 Motion for Summary Judgment; DENYING 24 Motion for Summary Judgment; DENYING 28 Motion to Strike ; DENYING 34 Motion for Hearing Signed by Judge Kathleen Cardone. (dl1)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
EDMUNDO GUERRERO, JR.,
Plaintiff,
v.
TOTAL RENAL CARE, INC.
d/b/a DAVITA a/k/a SIERRA
MOBILE ACUTE DIALYSIS
SERVICES,
Defendant.

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EP-11-CV-449-KC

ORDER
On this day, the Court considered five motions in the above-captioned case, including
Plaintiff’s Motion for Summary Judgment, ECF No. 23; Defendant’s Motion for Summary
Judgment, ECF No. 24; Plaintiff’s Motion to Strike Evidence, ECF No. 28; Plaintiff’s Motion for
an Oral Hearing, ECF No. 34; and Defendant’s Motion to Strike Evidence, ECF No. 37. For the
reasons set forth below, each of the parties’ five motions is DENIED.1
I.

PRELIMINARY MATTERS
As explained below in greater detail, Plaintiff claims that Defendant violated the False

Claims Act (“FCA”) by terminating Plaintiff’s employment in retaliation for an internal report
that Plaintiff allegedly made regarding Medicare and Medicaid fraud by Plaintiff’s fellow nurse.
Pl.’s Compl. 1-3, ECF No. 1. In response, Defendant argues that Plaintiff never made an internal
report regarding Medicare or Medicaid fraud, and that Plaintiff’s employment was terminated

1

Because many of the exhibits in the record lack page numbers of their own or are not numbered consecutively, this
Order refers to the page numbers supplied at the top of each page of the record by the electronic docketing system.
For the purposes of this Order, this convention is applied to all the parties’ filings in this case, including the parties’
pleadings, motions, and briefs.

1

due to Plaintiff’s history of disciplinary problems at work. Both parties have filed Motions for
Summary Judgment, and both parties’ motions must be denied.
Before addressing the substance of these motions, however, the Court first considers
certain preliminary matters. These include the numerous challenges to the admissibility of
evidence raised in the parties’ Motions to Strike Evidence, ECF Nos. 28 and 37, with respect to
which Plaintiff has also filed a Motion for an Oral Hearing, ECF No. 34. Under Rule 56 of the
Federal Rules of Civil Procedure, “[a] party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ.
P. 56(c)(2); Cutting Underwater Techs. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 515
(5th Cir. 2012). The Court first examines the parties’ Motions to Strike Evidence themselves,
before then turning to evaluate Plaintiff’s Motion for an Oral Hearing in its discretion under Rule
CV-7(h) of the Local Court Rules of the Western District of Texas. See Sanders v. Agnew, 306
F. App’x 844, 849 (5th Cir. 2009) (analyzing the pre-2012 version of this rule).
A.

Defendant’s Motion to Strike Evidence

Defendant has objected to three items of evidence offered in support of Plaintiff’s Motion
for Summary Judgment, including a news article, a determination rendered by the Texas
Workforce Commission, and a single page from Plaintiff’s cellular phone bill. See Def.’s Mot.
to Strike Evidence 4-6. In the Court’s view, all three of these documents are irrelevant to the
present Order, because their only conceivable effect would be to substantiate or undermine the
credibility of certain deposition testimony. 2 At the summary judgment stage, the Court may not

2

This is demonstrated by Plaintiff’s efforts to explain the relevance of these three documents. That is, Plaintiff has
never discussed these documents’ relevance without alluding to impeachment and credibility. Such analysis of
credibility is not appropriate at summary judgment. See Pl.’s Resp. to Def.’s Mot. to Strike Evidence 1-5, ECF No.
41 (“[Defendant’s] statements to and silence before the [Texas Workforce Commission] concerning the reason, or
lack thereof, for [Plaintiff’s] termination are admissible for what they show, [Defendant’s] attempts to play ‘fast and

2

make credibility determinations or weigh evidence. Man Roland, Inc. v. Kreitz Motor Express,
Inc., 438 F.3d 476, 478-79 (5th Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000)). The Court’s only task at this stage is to assess whether “a genuine
issue of material fact” remains for resolution at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Wallace v. Tex. Tech. Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996).
As set forth in greater detail below, several genuine issues of material fact do indeed
remain for resolution at trial based on the parties’ conflicting deposition testimony. The balance
of this Court’s analysis therefore cannot be tilted, at the present stage, in favor of either party by
any additional corroboration or impeachment found in the documents challenged by Defendant.
In this particular case, the parties’ deposition testimony alone demonstrates that the facts are not
“so one-sided that one party must prevail as a matter of law.” See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir.
1996).
Therefore, because the news article, the determination rendered by the Texas Workforce
Commission, and Plaintiff’s phone bill are each irrelevant to the Court’s current task of
evaluating the parties’ Motions for Summary Judgment, Defendant’s Motion to Strike Evidence
is hereby DENIED as moot. See Hobbs v. Ketera Techs., Inc., 865 F. Supp. 2d 719, 736 (N.D.
Tex. 2012); Wuellner Oil & Gas, Inc. v. EnCana Oil & Gas (USA) Inc., 861 F. Supp. 2d 775,
787 (W.D. La. 2012). The Court emphasizes that the present Order does not prejudice any
questions concerning these three documents’ ultimate admissibility as trial exhibits under the
Federal Rules of Evidence.
loose’ with the Court . . . . The CNN article . . . is evidence used to impeach [Defendant’s] prior statements . . . .
The cellular phone bill is being introduced to impeach [Defendant’s senior staff member’s] statements that he made
during his deposition . . . . The Latin maxim, ‘falsus in unus, falsus in omnibus’ would seem to apply to
[Defendant’s senior staff member].”).

3

B.

Plaintiff’s Motion to Strike Evidence

For his part, Plaintiff objects to seven items of evidence offered in support of Defendant’s
Motion for Summary Judgment. The first of these is the corrected version of the Declaration of
Victor Tapia (“Tapia Declaration”), ECF No. 25, filed on December 5, 2012. Initially, Plaintiff
objected to a previous version of the Tapia Declaration that had improperly failed to include the
date on which it was executed. See Pl.’s Mot. to Strike Evidence 1. Defendant had already
cured this defect, however, by filing the corrected version of the Tapia Declaration only twentyfour hours after the previous version had been filed, two days prior to the Court’s deadline for
dispositive motions, and almost two weeks before Plaintiff filed his present Motion to Strike
Evidence. See Scheduling Order, ECF No. 17; Pl.’s Mot. to Strike Evidence. In his three
different Reply briefs, Plaintiff chose not to repeat his initial objection regarding the lack of a
date of execution, but instead raised a new challenge to the admissibility of the Tapia Declaration
under the sham-affidavit doctrine. Pl.’s Reply to Supp. Mot. for Summ. J. 7, ECF No. 33; Pl.’s
Reply to Supp. Mot. for Summ. J. 1-2, ECF No. 38; Pl.’s Reply to Supp. Pl.’s Mot. to Strike
Evidence 1-5, ECF No. 42. Under the sham-affidavit doctrine, a party “may not manufacture a
genuine issue of material fact by submitting an affidavit that impeaches prior testimony without
explanation.” Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000). In
Plaintiff’s view, the Tapia Declaration contradicts critical aspects of the declarant’s previous
deposition testimony. Pl.’s Reply to Supp. Pl.’s Mot. to Strike Evidence 1-4.
The Court considers Plaintiff’s sham-affidavit objection waived for the purposes of
Defendant’s Motion for Summary Judgment, because Plaintiff raised it for the first time in his
three Reply briefs, rather than in his initial Motion to Strike Evidence or his Response to
Defendant’s Motion for Summary Judgment. See Jones v. Cain, 600 F.3d 527, 540-41 (5th Cir.
4

2010) (“Arguments raised for the first time in a reply brief are generally waived.”); United States
v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (same). Moreover, the sham-affidavit rule “is
applied sparingly” and may be invoked only where there is “some inherent inconsistency
between an affidavit and a deposition.” Axxiom Mfg., Inc. v. McCoy Invs., Inc., 846 F. Supp. 2d
732, 749-50 (S.D. Tex. 2012) (quoting Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th
Cir. 2010)). In the Court’s view, there is no such “inherent inconsistency” between the Tapia
Declaration and the declarant’s prior deposition testimony. Plaintiff’s arguments regarding
certain isolated contradictions, therefore, go to the Tapia Declaration’s weight rather than its
admissibility. See Eicken v. USAA Fed. Savings Bank, 498 F. Supp. 2d 954, 960-61 (S.D. Tex.
2007) (citing Williamson v. United States Dep’t of Agric., 815 F.2d 368, 383 (5th Cir. 1987)).
Additionally, even if the Tapia Declaration does contradict the declarant’s previous
deposition testimony to some degree, those portions of the Tapia Declaration are also irrelevant
to the Court’s analysis of the parties’ Motions for Summary Judgment. As set forth below in
greater detail, the parties’ conflicting deposition testimony already creates several genuine issues
of material fact, such that both parties’ Motions for Summary Judgment must be denied. The
Tapia Declaration adds nothing to this analysis. The Tapia Declaration cannot confer any more
credibility or evidentiary weight on the declarant’s deposition testimony than it already
possesses, because the Court may not make credibility determinations or weigh evidence at the
summary judgment stage. See Man Roland, 438 F.3d at 478-79 (citing Reeves, 530 U.S. at 150).
On the other hand, if any inconsistencies between the Tapia Declaration and Defendant’s
deposition testimony were to raise additional points of disagreement between Plaintiff and
Defendant regarding the material facts, this would only create additional grounds to deny the
Motions for Summary Judgment. Accordingly, the Tapia Declaration is largely ignored for the
5

purposes of the present Order.
The only way in which the Court has relied upon the Tapia Declaration is to authenticate
the transcription of the declarant’s notes from an interview conducted with a patient at
Providence Memorial Hospital (“Providence Memorial”) prior to the termination of Plaintiff’s
employment. See Tapia Decl. ¶ 9. This transcription was provided to the Court on December 4,
2012. See Def.’s Mot. for Summ. J., Ex. G (“Tapia Investigation Notes”), ECF No. 24-16. In
Plaintiff’s original Motion to Strike Evidence on December 18, 2012, Plaintiff objected to this
document only on the grounds that it had not been authenticated. Pl.’s Mot. to Strike Evidence
2. Nearly two weeks prior, however, the Tapia Declaration had already authenticated this
document explicitly as “a true and correct summary of the patient’s stated concerns” and
therefore satisfied the requirements of Rule 901 of the Federal Rules of Evidence. See Tapia
Decl. ¶ 9. The Court therefore will not strike the Tapia Investigation Notes for lack of
authentication.
Plaintiff also now raises objections regarding the hearsay character of the Tapia
Investigation Notes. These objections, however, did not appear in Plaintiff’s original Motion to
Strike Evidence on December 18, 2012, and were raised for the first time in Plaintiff’s Reply on
January 10, 2013. The Court therefore considers these objections waived for the purposes of
Defendant’s Motion for Summary Judgment. See Jones, 600 F.3d at 540-41; Jackson, 426 F.3d
at 304 n.2. Permitting Plaintiff to raise these hearsay objections for the first time in his Reply
would prejudice Defendant, who had already addressed the substance of Plaintiff’s Motion to
Strike Evidence in its previous Response, ECF No. 36, on January 3, 2013, in accordance with
Rule CV-7 of the Local Court Rules. In the specific context of hearsay, moreover, a party
waives a hearsay challenge if he does not “timely object[] or move[] to strike.” See Fed. R. Ev.
6

103(a)(1); see also United States v. Everett, 237 F.3d 631, 2000 WL 1701776, at *5 n.7 (5th Cir.
2000) (“Hearsay admitted without objection ‘is to be considered and given its natural probative
effect as if it were in law admissible.’”) (quoting United States v. Gresham, 585 F.2d 103, 106
(5th Cir. 1978)). Therefore, the Court will not strike the Tapia Investigation Notes as hearsay.
The Court further finds that a third item challenged by Plaintiff, the Declaration of Teresa
Isaacs, is also admissible. See Def.’s Mot. for Summ. J., Declaration of Teresa Isaacs (“Isaacs
Declaration”), ECF No. 24-8. This document was timely challenged by Plaintiff on grounds of
hearsay. See Pl.’s Mot. to Strike Evidence 2. In the Court’s view, however, the Isaacs
Declaration does not contain hearsay because the declarant testifies only to facts within her
personal knowledge: that a complaint was made to her by a patient at Providence Memorial and
that she relayed the complaint to Defendant’s staff member. See Isaacs Decl. The patient’s
complaint is not quoted or even described in any detail, and the Isaacs Declaration is not offered
for the truth of the matter described in the patient’s complaint. All facts described in the Isaacs
Declaration are offered, rather, to demonstrate the effect that the patient’s complaint had on
Defendant’s staff member, who was involved in the decision to terminate Plaintiff’s
employment. This non-hearsay purpose renders the Isaacs Declaration admissible. See United
States v. Chavis, 772 F.2d 100, 105 (5th Cir. 1985); Escobedo v. Dynasty Insulation, Inc., 694 F.
Supp. 2d 638, 645 (W.D. Tex. 2010).
The other four documents challenged by Plaintiff include communications sent internally
between members of Defendant’s senior staff and a set of disciplinary records maintained by
Plaintiff’s new employer. See Pl.’s Mot. to Strike Evidence 2-3. As with several of the parties’
objections that have already been considered, the Court finds again that none of these documents
alter the Court’s analysis of the genuine issues of material fact raised by the unchallenged
7

portions of the parties’ deposition testimony. The Court cannot rely on these documents to
corroborate or impeach the parties’ deposition testimony, because the Court cannot make
credibility determinations or weigh evidence at the summary judgment stage. See Man Roland,
438 F.3d at 478-79 (citing Reeves, 530 U.S. at 150). Accordingly, the Court need not consider
the admissibility of these documents. See Hobbs, 865 F. Supp. 2d at 736; Wuellner Oil & Gas,
861 F. Supp. 2d at 787.
To summarize, the Court finds that the Tapia Declaration is admissible to the extent that
it authenticates the Tapia Investigation Notes, and that the Tapia Investigation Notes are
consequently authenticated and admissible. The Court also finds that the Isaacs Declaration is
admissible as a non-hearsay statement made regarding facts that are within the declarant’s firsthand knowledge. Because the other documents challenged by Plaintiff’s Motion to Strike
Evidence provide information that is merely duplicative of the parties’ unchallenged deposition
testimony, or is otherwise irrelevant to the task of the Court at the summary judgment stage, no
other challenges raised in Plaintiff’s Motion to Strike Evidence need be considered by the Court
at this time.
Plaintiff’s Motion to Strike Evidence is therefore DENIED. The Court again
emphasizes, however, that the present Order does not prejudice the question of whether any of
these documents may ultimately be introduced as exhibits at trial.
C.

Plaintiff’s Motion for a Hearing

Plaintiff has also filed a Motion for an Oral Hearing, ECF No. 34, at which Plaintiff seeks
to challenge the documents that he considers “sham affidavits.” Under Rule CV-7(h) of the
Local Court Rules, the allowance of an oral hearing on a motion of this sort is “within the sole
discretion of the court.” See Sanders, 306 F. App’x at 849. In its discretion, the Court finds that
8

oral argument is unnecessary in this case because the briefs and record adequately present the
facts and legal arguments. Moreover, as previously explained, whether or not the challenged
declarations are “sham affidavits,” the parties’ conflicting deposition testimony independently
creates several genuine issues of material fact such that both parties’ Motions for Summary
Judgment must be denied.
The question of which witnesses the fact-finder should ultimately credit will be resolved
at trial, and further consideration of these declarations is therefore unnecessary. Plaintiff’s
Motion for an Oral Hearing is DENIED.
II.

BACKGROUND
Plaintiff alleges that Defendant terminated his employment in retaliation for Plaintiff’s

internal report of Medicare and Medicaid fraud, which is prohibited by the FCA’s anti-retaliation
provisions at 31 U.S.C. § 3730(h). From February 21, 2005, until August 30, 2011, Defendant
employed Plaintiff as a registered nurse. Def.’s Proposed Undisputed Facts ¶¶ 1, 93, ECF No.
24-1; Pl.’s Resp. to Def.’s Proposed Undisputed Facts ¶¶ 1, 93, ECF No. 29. Plaintiff provided
in-patient dialysis and related services pursuant to contracts between Defendant and various local
hospitals, including Providence Memorial, Sierra Medical Center, and Mesa Hills Specialty
Hospital. Def.’s Proposed Undisputed Facts ¶¶ 2-3; Pl.’s Resp. to Def.’s Proposed Undisputed
Facts ¶¶ 2-3; see also Pl.’s Dep. 15-16, ECF No. 31-3.3
There is no dispute that Defendant’s senior staff gave Plaintiff very mixed evaluations
regarding his performance and discipline over the six years of his employment. The parties’
accounts differ considerably, however, with regard to the events of 2011 that immediately

3

The parties have submitted a number of copies of the deposition transcripts in this case, some of which have been
heavily excerpted. In the present Order, all citations to deposition transcripts refer to the complete copies filed by
Plaintiff as a single electronic document, ECF No. 31, on December 19, 2012.

9

preceded Plaintiff’s termination. Three key incidents are of importance to the motions currently
before the Court. The first incident involved a misrepresentation made by Hector Alba (“Alba”),
one of Plaintiff’s fellow nurses, in a billing document submitted to Defendant’s senior staff. The
second incident involved an encounter between Plaintiff and a patient at Providence Memorial,
about which the patient later complained. The third incident involved Plaintiff’s subsequent
confrontation with a member of Defendant’s senior staff, Victor Tapia (“Tapia”), on August 23,
2011. Plaintiff alleges that he made an internal report during this confrontation with Tapia, in
which he characterized Alba’s misrepresentation as an act of Medicare or Medicaid fraud.
Plaintiff alleges that he then repeated this report to a second member of Defendant’s senior staff,
Timo Briffa (“Briffa”). Plaintiff argues that he was terminated in retaliation for these reports.
Defendant alleges, however, that Plaintiff never discussed Medicare or Medicaid fraud with
Tapia and Briffa, and that Plaintiff’s termination was based purely on his history of disciplinary
problems at work.
In reviewing the facts of this case in greater detail, the Court first summarizes the mixed
evaluations that Plaintiff received from Defendant’s senior staff regarding disciplinary issues.
The Court then turns to review the parties’ factual disagreements about the events of 2011.
A.

Plaintiff’s Disciplinary Problems at Work

The parties generally agree that Plaintiff received mixed evaluations regarding his
discipline over the six years of his employment with Defendant. Shortly after beginning work in
2005, Plaintiff was counseled by Tapia regarding false information concerning Plaintiff’s
educational background in Plaintiff’s application for employment. Def.’s Proposed Undisputed
Facts ¶ 65; Pl.’s Resp. to Def.’s Proposed Undisputed Facts ¶ 65; Pl.’s Dep. 36-37. Plaintiff,
however, blames these errors on “[t]he resume company” that had handled the application
10

process. Pl.’s Dep. 37.
On August 25, 2005, Plaintiff was suspended for thirty days from performing treatments
at Sierra Medical Center after one of the hospital’s patient transporters reported that he had
behaved in an “inappropriate” manner. Def.’s Proposed Undisputed Facts ¶ 35; Pl.’s Resp. to
Def.’s Proposed Undisputed Facts ¶ 35; Pl.’s Dep. 15. In February 2006, Plaintiff received
written warnings for two separate incidents when he did not respond to his pager while on-call.
Def.’s Proposed Undisputed Facts ¶ 39; Pl.’s Resp. to Def.’s Proposed Undisputed Facts ¶ 39. In
February 2008, Plaintiff had a conflict with a nurse, who reprimanded him for not wearing a
gown in accordance with a hospital’s infection-control policy. Pl.’s Dep. 20. In September
2009, Plaintiff received a single written warning for two incidents: (1) discussing a fellow
nurse’s “lack of skills” with a patient, and (2) calling a hospital facility to request that a
physician postpone a treatment because the patient was “non-compliant.” Def.’s Mot. for Summ.
J., Ex. F (“September 2009 Warning”), ECF No. 24-15.
During the subsequent year and eleven months, however, the record does not reveal any
further disciplinary measures taken against Plaintiff. In a written evaluation on March 8, 2010,
Briffa stated that Plaintiff had shown “great improvement in his work quality and attitude.”
Briffa Dep. 66-67, 77, ECF No. 31. In the same evaluation, Briffa also wrote that Plaintiff’s
“documentation is impeccable.” Id. Speaking generally during his deposition, Briffa further
testified that he had “always thought [Plaintiff] a very good technical nurse” and “a good nurse
as far as patient care” who “[p]ractices a patient-first attitude every day, every patient, every
treatment.” See id. at 68-69.
B.

Alba’s Misrepresentation

Tapia testifies that he and his assistant, Christie Veloz (“Veloz”), learned that Alba had
11

performed a dialysis-related treatment at a client hospital and that Alba had misreported the type
of treatment in the documentation relied upon by Defendant to bill the client hospital for
services. Tapia Dep. 48-50. As Defendant emphasizes in its Motion for Summary Judgment,
Tapia testifies that he believes Alba’s misrepresentation to have been a “mistake,” rather than an
intentional falsehood. See id. at 49; see also Def.’s Mot. for Summ. J. 7-8, 18-19. In this regard,
Tapia points out that Alba’s misrepresentation was only partial. That is, while Alba misreported
the type of treatment in one of the documents, which Tapia calls “the bill part,” Alba made an
accurate report of the treatment performed in a second document, “the flow sheet.” Id. at 50.
Tapia testifies that he directed Veloz to correct the erroneous “bill part” after she had discovered
this inconsistency and then spoken with Alba to verify that the flow sheet was the correct
document. Tapia Dep. 13, 48-50.
Tapia further testifies that he did not discuss Alba’s misrepresentation with anybody but
Veloz, and specifically denies ever discussing Alba’s misrepresentation with Plaintiff or Briffa.
See id. at 16-18, 50. Briffa testifies, however, that he learned about Alba’s misrepresentation and
its subsequent correction in the course of administering the nurses’ payroll, for which he is
sometimes required to do “the math at the end.” Briffa Dep. 45-49. Like Tapia, Briffa also
specifically denies ever discussing Alba’s misrepresentation or any other aspect of this incident
with Plaintiff. Id. at 43, 49.
Plaintiff’s own account directly contradicts the testimony of both members of
Defendant’s senior staff, Tapia and Briffa, in several ways. Though Briffa says that he never
discussed Alba with Plaintiff, Plaintiff testifies that “Briffa told [Plaintiff] verbatim that they
were aware of the fact that [Alba] had charged for a procedure that was not done and was not
ordered by . . . Dr. Pazmino, the M.D. . . . at Providence Memorial Hospital” and that Alba
12

subsequently “got caught” by Defendant’s senior staff. Pl.’s Dep. 3. Though Tapia says that he
had never talked with Alba directly about the misrepresentation, and that he had never discussed
it with Briffa at all, Plaintiff testifies that Briffa told Plaintiff that both Briffa and Tapia “were
going to meet with” Alba to discuss the matter. Pl.’s Dep. 3. Finally, although Tapia
emphasizes his belief that Alba’s misrepresentation was a “mistake,” see Tapia Dep. 49, Plaintiff
alleges that Briffa told Plaintiff “that he thought it was fraud on the part of Mr. Alba.” See Pl.’s
Dep. 4.
Whether Alba’s misrepresentation was intentional “fraud” or an unintentional “mistake,”
it is undisputed that Defendant did not—and customarily would not—directly submit Alba’s
documentation to the federal government as a claim for payment covered by Medicare or
Medicaid. See Def.’s Proposed Undisputed Facts ¶¶ 18-21; Pl.’s Resp. to Def.’s Proposed
Undisputed Facts ¶¶ 18-21. It is also undisputed, however, that the records produced by nurses
such as Alba are created in part “[f]or purposes of billing that ultimately goes to
Medicare/Medicaid.” See Tapia Dep. 14, 62. That is, because some of the patients that are
treated by Defendant’s nurses are covered under Medicare or Medicaid, the client hospitals may
ultimately use certain of Defendant’s invoices to support claims to payment under Medicare or
Medicaid. See Def.’s Proposed Undisputed Facts ¶¶ 18-21; Pl.’s Resp. to Def.’s Proposed
Undisputed Facts ¶¶ 18-21; Tapia Dep. 14, 62. There has been no evidence in this case
regarding specifically how the client hospitals make use of Defendant’s invoices in their own
billing procedures.
C.

Plaintiff’s Encounter with the Patient at Providence Memorial

Defendant contends that on August 23, 2011, Defendant’s senior staff received a
complaint about Plaintiff from a patient, which was relayed though Teresa Isaacs (“Isaacs”), the
13

Hospital Coordinator at Providence Memorial. Def.’s Proposed Undisputed Facts ¶ 70-71;
Isaacs Decl.; Tapia Dep. 82, 86. Tapia testifies that he then visited the patient’s room at
Providence Memorial to investigate the complaint. Tapia Dep. 82, 86. Tapia testifies that the
patient was extremely upset and had a list of serious criticisms about Plaintiff’s unprofessional
behavior during a dialysis treatment. See id. at 89. Tapia testifies that the patient was angry
because Plaintiff, among other things, had called the patient, “bro,” and had begun changing the
patient’s catheter dressing but had stopped before finishing. See id. at 88-89.
For his part, Plaintiff testifies that he recalls the interaction with the patient at Providence
Memorial. Pl.’s Dep. 22-23. Plaintiff alleges, however, that he never called the patient, “bro,”
and that he did finish changing the patient’s catheter dressing. Id. He also denies other
unprofessional behavior, including watching television and making personal phone calls during
the procedure. Id. Though Plaintiff recalls preventing the patient from eating, he explains that
this was only because the patient’s low blood pressure would cause the patient to become
nauseated by food. Id.
The Court has not been provided with any testimony directly from the patient. Nor has
the Court been informed of the patient’s name. Throughout this litigation, Defendant’s senior
staff members have referred to the patient only as “the patient.” See, e.g., Tapia Dep. 85.
In particular, Tapia testifies that he has forgotten the patient’s name. Id. at 77-78. Tapia alleges
that he took notes during his interview with the patient at Providence Memorial, although the
original notes have not been provided to the Court. See Tapia Dep. 85. Tapia testifies that he
may have thrown them away. Id. The Court has been provided with a typed document that
Defendant alleges was “immediately” transcribed from Tapia’s interview notes, although this
document also fails to include the patient’s name and bears no date. See Tapia Investigation
14

Notes; Def.’s Proposed Undisputed Facts ¶ 75. Tapia also testifies that the patient had a
BlackBerry device with him at Providence Memorial, and that the patient “wrote everything on
the BlackBerry,” but the Court has not been provided with a copy of the patient’s own notes
from the encounter with Plaintiff. See Tapia Dep. 77.
Tapia also testifies as to his understanding that two other witnesses were present during at
least part of Plaintiff’s encounter with the patient. These witnesses included the patient’s wife
and John Molina (“Molina”), who was one of the other dialysis nurses employed by Defendant.
Tapia’s Dep. 86-88. Tapia explains that he did interview the patient’s wife while speaking with
the patient at Providence Memorial. Id. at 88. As Tapia also explains, however, the “only thing”
that the patient’s wife “actually witnessed” was “the fact that [the patient] didn’t have a dressing
change, that it was all open . . . .” Id. Like the patient himself, however, the patient’s wife has
not testified in this case and has not been identified by name in any of the parties’ filings.
Molina, by contrast, has been deposed regarding Plaintiff’s interaction with the patient at
Providence Memorial. See Molina Dep., ECF No. 31-1. In his testimony, Molina does not recall
any negative interaction between Plaintiff and Plaintiff’s patient on that day. On the contrary,
Molina testifies that Plaintiff “did fine” during that treatment. Id. at 16. Molina does recall that
Plaintiff needed some help from Molina at one point “during the end of the treatment.” Id. at 13.
Molina testifies that Plaintiff asked Molina to get him a bag of saline from another part of the
hospital when the patient’s blood pressure had become low. Id. at 14. Molina testifies that
Plaintiff then restored the patient’s blood pressure to a normal level by infusing the saline. See
id. at 14-16. To the extent that Plaintiff was distracted while treating the patient, Molina points
out that this was at least partially because Plaintiff was busy responding to an inquiry by one of
the physicians at Providence Memorial. Id. at 10-13.
15

Molina also testifies that no member of Defendant’s senior staff ever interviewed him
regarding his impressions of Plaintiff’s encounter with the patient at any time prior or subsequent
to the termination of Plaintiff’s employment. Id. at 17-18. This is confirmed by Tapia’s own
testimony. Tapia Dep. 97, 103-04. Although Tapia did not speak with Molina about the
patient’s complaints in the course of his investigation, however, Tapia considers that he
nonetheless conducted “a complete investigation” of the incident. See id. at 81, 97-98.
As a final matter relating to the encounter between Plaintiff and the patient, this Court has
been provided with a brief declaration written by Isaacs, the Hospital Coordinator at Providence
Memorial. Isaacs Decl. The Isaacs Declaration confirms that “a patient” made a complaint on
August 23, 2011, and that the complaint was of a “serious nature.” Id. Isaacs does not provide
any further detail, however, regarding the nature of the patient’s complaint or whether Plaintiff
would be subject to a disciplinary suspension from performing treatments at Providence
Memorial. See id. According to Briffa’s understanding, however, Providence Memorial did not
suspend Plaintiff from performing treatments at its facilities indefinitely. Briffa Dep. 52-54.
Rather, Providence Memorial simply instructed Defendant’s senior staff that Plaintiff should not
be given any further assignments at Providence Memorial until that particular patient was
discharged from the hospital. Id. Briffa testifies as to his understanding that the patient “[d]idn’t
want to be near [Plaintiff],” and that Providence Memorial wanted to prevent any further
interactions between Plaintiff and the patient. Id. at 54.
D.

Tapia’s Confrontation with Plaintiff at Mesa Hills Specialty Hospital

After speaking with the patient at Providence Memorial, Tapia went immediately to
speak with Plaintiff about the patient’s complaints. Tapia Dep. 86, 88-91, 99. Plaintiff had left
Providence Memorial by that time to treat a second patient at Mesa Hills Specialty Hospital, and
16

was “at the bedside with the patient” when Tapia arrived. See Tapia Dep. 89; Pl.’s Dep. 4.
Calling Plaintiff away from the bedside into the hallway, Tapia began to discuss with Plaintiff
the incident at Providence Memorial. Pl.’s Dep. 4; Tapia Dep. 89-90.
With one critical difference, Tapia and Plaintiff generally agree about the content of this
discussion. Tapia testifies that he began to recite the complaints of the patient at Providence
Memorial and that Plaintiff interrupted him. Tapia Dep. 89. According to Tapia, Plaintiff
changed the subject from his own unprofessional behavior to the misconduct of Defendant’s
other nurses, which had allegedly resulted in fatalities among Defendant’s patients. That is,
Plaintiff stated, “I can’t believe you get people killed” and allow “other people [to] get away
with – with things.” Id. Tapia testifies that he tried to refocus the discussion on Plaintiff’s own
behavior, but that Plaintiff then threatened to “go up to higher management” with his criticisms
of the other nurses. Id. at 89-90. Tapia testifies that he then told Plaintiff of his intention to
report the matter to Defendant’s human resources department and terminated the conversation.
Id. at 90.
Importantly, Tapia testifies that Plaintiff never accused other nurses of committing fraud
during this conversation at Mesa Hills Specialty Hospital. Id. at 92. In this respect, however,
Plaintiff’s account differs from Tapia’s. Plaintiff agrees that Tapia began the conversation by
discussing the complaints about Plaintiff’s behavior made by the patient at Providence
Memorial. Pl.’s Dep. 4-5. Plaintiff also agrees that he then changed the subject to the
misconduct of other nurses, and that this part of the conversation included accusations of
“patients dying . . . . because of results of nursing negligence and nothing’s being done.” See id.
at 5. But Plaintiff emphasizes that one of his accusations related to the “Medicare/Medicaid
fraud” allegedly committed by Alba, which Plaintiff explains that he learned about during a
17

conversation with Briffa. See id. at 3, 5. Plaintiff acknowledges that he did not know if Alba’s
misrepresentation had related in any way to a patient that was actually covered by Medicare or
Medicaid. Id. at 6. Plaintiff testifies as to his impression, however, that “most of the patients
that are on dialysis are on Medicare and Medicaid.” Id.
According to Plaintiff, Tapia then concluded the conversation by warning Plaintiff that he
would “take this situation” to Defendant’s human resources department. Id. Plaintiff further
alleges that, after Tapia had left, Plaintiff made a telephone call to Briffa to tell him about his
conversation with Tapia. Id. Plaintiff testifies that he announced to Briffa his intention to
inform “the regional operating director” of his concerns about Alba’s fraud. Id. at 3. According
to Plaintiff, Briffa warned Plaintiff “to be careful . . . because [Tapia] has a lot of pull” within
Defendant’s hierarchy. Id.
Briffa, however, contradicts Plaintiff’s testimony. Briffa states that he never spoke with
Plaintiff regarding Alba or Medicare and Medicaid fraud. Briffa Dep. 42, 56-57. Briffa further
testifies that he has no memory of speaking on the telephone with Plaintiff after the confrontation
with Tapia at Mesa Hills Specialty Hospital. Id. at 56-57.
E.

Termination of Plaintiff’s Employment

On August 30, 2011, one week after the incidents at Providence Memorial and Mesa
Hills Specialty Hospital, Plaintiff was summoned to Tapia’s office. Pl.’s Dep. 23; Tapia Dep.
108-09. Briffa was also present. Briffa 28-29. Tapia handed Plaintiff a letter explaining that his
employment was terminated. Pl.’s Dep. 23; Tapia Dep. 108-09; Plaintiff’s Mot. for Summ. J.,
Ex. 17 (“Termination Letter”), ECF No. 23-7.
The letter was unsigned, but the signature block indicated that it was from Tapia himself.
See Termination Letter. This letter included no grounds for the termination of Plaintiff’s
18

employment. Id. Neither Tapia nor Briffa verbally gave Plaintiff any reasons for his termination
on this occasion. Pl.’s Dep. 23; Tapia Dep. 75, 96-97, 108; Briffa 28.
According to Tapia, Plaintiff’s employment was terminated not only because of the
incident of August 23, 2011, involving the patient at Providence Memorial, but also because of
the “accumulation” of Plaintiff’s discipline problems over the course of his six years in
Defendant’s employment. Tapia Dep. 107-12. According to Tapia, these included not only the
“write-ups” received by Plaintiff in 2006, 2008, and 2009, but also Plaintiff’s general “problem
with attitude.” Id. at 108.
III.

DISCUSSION
A.

Standard

A court must enter summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see Celotex, 477 U.S. at 322-23 (1986); Weaver, 529 F.3d at 339. “A fact is
‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under
governing law.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quoting
Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (per curiam)). A dispute
about a material fact is genuine only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248; Ellison, 85 F.3d at 189.
“[The] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex,
477 U.S. at 323; Wallace v. Tex. Tech. Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996). To show
the existence of a genuine dispute, the nonmoving party must support its position with citations
19

to “particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory
answers, or other materials[,]” or show “that the materials cited by the movant do not establish
the absence . . . of a genuine dispute, or that [the moving party] cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c).
A court resolves factual controversies in favor of the nonmoving party; however, factual
controversies require more than “conclusory allegations,” “unsubstantiated assertions,” or “a
‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
Further, when reviewing the evidence, a court must draw all reasonable inferences in favor of the
nonmoving party, and may not make credibility determinations or weigh evidence. Man Roland,
Inc., 438 F.3d at 478-79 (citing Reeves, 530 U.S. at 150). Thus, the ultimate inquiry in a
summary judgment motion is “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson, 477 U.S. at 251-52.
B.

Analysis

Plaintiff argues that his employment was terminated in retaliation for the internal reports
that he allegedly made in person to Tapia and over the telephone to Briffa on August 23, 2011,
regarding the act of “Medicare/Medicaid fraud” allegedly committed by Alba. Pl.’s Proposed
Undisputed Facts ¶¶ 18-20; Pl.’s Dep. 3. Plaintiff argues that his termination was therefore a
violation of the anti-retaliation provisions of the FCA. Pl.’s Mot. for Summ. J. 5-7. The FCA
prohibits adverse actions taken by employers to discourage “lawful acts done by the employee . .
. in furtherance of an action under this section or other efforts to stop . . . violations of this
subchapter.” 31 U.S.C. 3730(h).
20

Both Plaintiff and Defendant have filed motions for summary judgment, and both parties
agree that their motions should be analyzed under the framework created by the United States
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Pl.’s Mot. for
Summ. J. 5; Def.’s Mot. for Summ. J. 23. Although the Fifth Circuit has not addressed this
question, several federal courts of appeals have held that the familiar burden-shifting analysis
established in McDonnell Douglas should be applied to FCA retaliation claims, much as it is
applied under a variety of statutes governing the employment relationship. United States ex rel.
Schweizer v. Oce N.V., 677 F.3d 1228, 1240-41 (D.C. Cir. 2012); Harrington v. Aggregate
Indus. Ne. Region, Inc., 668 F.3d 25, 31 (1st Cir. 2012); Scott v. Metro. Health Corp., 234 F.
App’x 341, 346 (6th Cir. 2007). Several district courts in the Fifth Circuit have held likewise.
See United States v. City of Dallas, No. 3:09-CV-1452, 2011 WL 4912590, at *5 (N.D. Tex.
Sept. 27, 2011); Turner v. DynMcDermott Petroleum Operations Co., No. 06-1455, 2010 WL
4363403, at *2 (E.D. La. Oct. 21, 2010); United States ex rel. Dyson v. Amerigroup Tex., Inc.,
No. H-03-4223, 2005 WL 2467689, at *3 (S.D. Tex. Oct. 6, 2005).
This Court, therefore, will also apply the McDonnell Douglas burden-shifting framework
to analyze the parties’ motions for summary judgment in this case. Under the McDonnell
Douglas framework, if an employee presents sufficient circumstantial evidence to “establish[] a
prima facie case of retaliation, the burden shifts to the employer to articulate a legitimate . . .
reason for the adverse employment action. If the employer succeeds in doing so, the burden
shifts back to the employee to show by a preponderance of the evidence that the employer’s
articulated reason is a pretext . . . .” Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332-33
(5th Cir. 2005) (applying McDonnell Douglas to a retaliation claim under the Family Medical
Leave Act); see also Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995) (applying
21

McDonnell Douglas to a claim for disability discrimination under the Americans with
Disabilities Act).
Under the McDonnell Douglas framework, wherever “reasonable minds could differ as to
whether a preponderance of the evidence establishes the facts of a prima facie case, then a
question of fact does remain, which the trier of fact will be called upon to answer.” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 509-10 (1993); Cicero v. Borg-Warner Automotive, Inc., 280
F.3d 579, 587 (6th Cir. 2002) (“If the parties dispute the facts establishing the prima facie case . .
. a question of fact remains for the fact finder to decide.”); Anaeme v. Diagnostek, Inc., 164 F.3d
1275, 1283 (10th Cir. 1999) (“[E]ven if Defendants had failed to meet their burden of
production, Plaintiff’s facts in this case were contested and reasonable minds could differ as to
whether he established a prima facie case by a preponderance of the evidence.”); see also Sisk v.
Picture People, Inc., 669 F.3d 896, 899-900 (8th Cir. 2012); Edwards v. Galveston-Texas City
Pilots, 203 F. Supp. 2d 759, 768 (S.D. Tex. 2002).
As explained below, both parties’ motions for summary judgment must be denied.
Plaintiff’s Motion for Summary Judgment is denied because a reasonable fact-finder could
conclude that Plaintiff has not established his prima facie case. Defendant’s Motion for
Summary Judgment is denied because a reasonable fact-finder could conclude that Defendant’s
articulated justification for terminating Plaintiff’s employment is a pretext.
1.

Plaintiff’s Motion

In order for his motion for summary judgment to succeed, an employee claiming
retaliation under the FCA must first demonstrate that any reasonable fact-finder would conclude
that the employee has established the three elements of his prima facie case by a preponderance
of the evidence: (1) that the employee engaged in activity protected under the FCA, (2) that his
22

employer knew he engaged in protected activity, and (3) that his employer took adverse action
against him because of the protected activity. See United States ex rel. Patton v. Shaw Servs.,
L.L.C., 418 F. App’x. 366, 371-72 (5th Cir. 2011); Robertson v. Bell Helicopter Textron, Inc., 32
F.3d 948, 951 (5th Cir. 1994).
In this case, Plaintiff’s Motion for Summary Judgment cannot succeed, because there
remains a genuine factual controversy as to whether Plaintiff ever engaged in an activity
protected under the FCA. Reasonable minds could differ as to whether a preponderance of the
evidence shows that Plaintiff made an internal complaint regarding a falsified record related to a
claim for payment from the government. In this case, therefore, the question of whether the first
element of Plaintiff’s prima facie case is established by a preponderance of the evidence must be
submitted to a jury. See Hicks, 509 U.S. at 509-10; Cicero, 280 F.3d at 587; Galveston-Texas
City Pilots, 203 F. Supp. 2d at 768.
The Fifth Circuit recognizes that internal complaints may constitute a protected activity
under the FCA. See Patton, 418 F. App’x at 372 (citing Robertson, 32 F.3d at 952); see also
United States ex rel. George v. Boston Scientific Corp., 864 F. Supp. 2d 597, 605 (S.D. Tex.
2012). Analyzing cases decided by various federal courts of appeals, the United States District
Court for the Southern District of Texas concluded that an internal complaint constitutes a
protected activity so long as “the internal complaint allege[s] fraud on the government” such that
“the employer could have feared being reported to the government for fraud or sued in a qui tam
action by the employee . . . .” Boston Scientific Corp., 864 F. Supp. 2d at 606 (quoting United
States ex rel. Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 1304 (11th Cir. 2010) (alterations in the
original)).
However, Plaintiff’s contention that he actually made explicit complaints regarding
23

Alba’s “Medicare/Medicaid fraud” to Tapia and Briffa is supported only by Plaintiff’s own
deposition testimony. Pl.’s Dep. 2-5. There is no transcript of these private conversations and
Plaintiff does not allege that any written version of his internal complaint was ever created. For
their part, both Tapia and Briffa deny ever discussing Alba’s alleged misconduct with Plaintiff.
See Tapia Dep. 92; Briffa Dep. 42, 56-57. At this stage in the proceedings, the Court cannot
weigh the respective credibility of these three witnesses’ testimony. See Man Roland, 438 F.3d
at 478-79 (citing Reeves, 530 U.S. at 150). The Court therefore concludes that because a
reasonable fact-finder might ultimately believe the version of events offered by Tapia and Briffa,
Plaintiff’s prima facie case is not amenable to summary judgment and must be submitted to a
jury. See Hicks, 509 U.S. at 509-10; Cicero, 280 F.3d at 587. On this basis alone, Plaintiff’s
Motion for Summary Judgment is DENIED.
2.

Defendant’s Motion
a.

Prima facie case

In order for an employer’s motion for summary judgment to succeed, the employer may
demonstrate that any reasonable fact-finder would conclude that the employee cannot establish
one or more of the elements of his prima facie case by a preponderance of the evidence: (1) that
the employee engaged in activity protected under the FCA, (2) that his employer knew he
engaged in protected activity, and (3) that his employer took adverse action against him because
of the protected activity. See Patton, 418 F. App’x. at 371-72; Robertson, 32 F.3d at 951.
i.

Protected activity

Here, the Court cannot grant Defendant’s Motion for Summary Judgment on the grounds
that Plaintiff has presented no evidence to support the first element of his prima facie case. Just
as a reasonable fact-finder could conclude that the testimony of Tapia and Briffa is more credible
24

than that of Plaintiff, a reasonable fact-finder might also conclude the opposite. 4 As explained
above, Plaintiff has provided deposition testimony that he engaged in protected activity: the
internal reports of “Medicare/Medicaid fraud” made in person to Tapia and by telephone to
Briffa. Pl.’s Dep. 2-5. The first element of Plaintiff’s prima facie case therefore is not amenable
to summary judgment and must be submitted to a jury. See Hicks, 509 U.S. at 509-10; Cicero,
280 F.3d at 587.
Defendant argues that this Court should not credit Plaintiff’s deposition testimony,
because Plaintiff failed to call Defendant’s “compliance hotline,” to contact Defendant’s “Chief
Compliance Officer,” or to repeat his allegations regarding Alba’s misrepresentation to
Defendant’s human resources department. See Def.’s Mot. for Summ. J. 9, 15. Defendant
appears to urge an inference that because Plaintiff’s alleged investigation into an FCA violation
was left incomplete, it therefore could never have been initiated. At the summary judgment
stage, however, a district court must draw all reasonable inferences in favor of the nonmoving
party and must not make credibility determinations. Man Roland, 438 F.3d at 478-79 (citing
Reeves, 530 U.S. at 150). The Court therefore cannot adopt Defendant’s arguments.
Defendant also argues that, as a matter of law, the internal complaint allegedly made by
Plaintiff would not constitute protected activity under the FCA even if the facts described in
Plaintiff’s testimony were proven conclusively. Defendant argues, therefore, that it is entitled to
judgment as a matter of law. Indeed, the Fifth Circuit has upheld summary judgment based on
such an analysis in the past. In Patton, the employee’s internal report was not protected by the

4

Even though all three witnesses, including Plaintiff and the two members of Defendant’s senior staff, have offered
testimony that is arguably “self-serving,” this does not render this evidence incompetent for consideration at
summary judgment. A party’s own testimony is often “self-serving,” but it is not excluded as incompetent for that
reason alone. See C.R. Pittman Constr. Co., Inc. v. Nat’l Fire Ins. Co. of Hartford, 453 F. App’x 439, 443 (5th Cir.
2011) (collecting cases). Therefore, the Court cannot disregard any of these three witnesses’ testimony on this basis.

25

FCA because the summary judgment evidence demonstrated that “the substance of his
complaints concerned . . . unsafe or improper construction methods, and not . . . [the] defrauding
[of] the government.” See Patton, 418 F. App’x at 372.
Defendant’s argument fails, however, because Plaintiff’s internal complaint is
sufficiently distinguishable from the internal complaint analyzed in Patton. As described in
Plaintiff’s testimony, the internal complaints made to Tapia and Briffa directly addressed the
“Medicare/Medicaid fraud” that Alba had allegedly committed. See Pl.’s Dep. 3, 5. As alleged,
these internal complaints also had implications that were broader than Alba’s misconduct alone.
According to Plaintiff, Tapia implicitly “admitted” that he knew about Alba’s misconduct, and
yet Alba was “still employed.” Id. at 5. Therefore, Plaintiff’s alleged warning to Briffa that he
“was going to report it to the regional operating director” may have implicated not only Alba’s
misconduct, but also the failure of Defendant’s senior staff to prevent or punish such misconduct.
See id. at 3; see also Tapia Dep. 89-90 (acknowledging that Plaintiff had threatened to “go up to
higher management”).
This alleged internal complaint is easily contrasted with the internal complaint regarding
“improper construction methods” in Patton, 418 F. App’x at 372. Plaintiff’s explicit reference to
“Medicare/Medicaid fraud” was sufficiently “aimed at matters that reasonably could lead to
False Claims Act litigation” to trigger the FCA’s anti-retaliation provisions. See Boston
Scientific Corp., 864 F. Supp. 2d at 607 (analyzing Patton, 418 F. App’x at 372). Plaintiff’s
alleged complaint of “Medicare/Medicaid fraud” could likewise be contrasted with a second
internal complaint that, according to deposition testimony offered by both parties, Plaintiff also
raised during his conversation with Tapia: “patients dying . . . because of results of nursing
negligence and nothing’s being done.” See Pl.’s Dep. 5-6; Tapia 89 (quoting Plaintiff’s
26

complaint that “I can’t believe you get people killed and you get [sic] – you get [sic] other people
get away with – with things.”). Unlike Plaintiff’s alleged complaint directed at
Medicare/Medicaid fraud, this statement would have fallen within the same category as the
complaint about unsafe construction methods in Patton, 418 F. App’x at 372. Although a very
serious accusation involving tragic events, this internal complaint was not “aimed at matters that
reasonably could lead to False Claims Act litigation” and therefore is not protected by the FCA’s
anti-retaliation provisions. See Boston Scientific Corp., 864 F. Supp. 2d at 607 (analyzing
Patton, 418 F. App’x at 372).
It also does not matter that, as Defendant emphasizes, Defendant does “not bill Medicare
or Medicaid” directly. See Def.’s Mot. 22; Def.’s Proposed Undisputed Facts ¶¶ 18-21. “The
FCA applies to anyone who ‘knowingly assist[s] in causing’ the government to pay claims
grounded in fraud, ‘without regard to whether that person ha[s] direct contractual relations with
the government.’” United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 378
(5th Cir. 2004) (quoting Peterson v. Weinberger, 508 F.2d 45, 52-53 (5th Cir. 1975)). Even if
Defendant does not itself hold a government contract, Alba or Defendant’s other staff could have
violated the provisions of the FCA that prohibit “knowingly mak[ing], us[ing], or caus[ing] to be
made or used, a false record or statement material to a false or fraudulent claim.” See 31 U.S.C.
§ 3729(a)(1)(B); see United States v. BNP Paribas SA, 884 F. Supp. 2d 589, 610 n.48 (S.D. Tex.
2012).
There has been no testimony in this case regarding specifically how the client hospitals
make use of Defendant’s invoices in their own billing procedures. For the purposes of
Defendant’s Motion for Summary Judgment, the Court must draw all reasonable inferences in
favor of Plaintiff. Man Roland, 438 F.3d at 478-79 (citing Reeves, 530 U.S. at 150). Therefore,
27

the Court must draw an inference at this stage that Defendant’s invoices are material to the
process by which the client hospitals submit claims for payment to Medicare and Medicaid. See
Pl.’s Dep. 6 (“[M]ost of the patients that are on dialysis are on Medicare and Medicaid.”); see
also Tapia Dep. 6, 14, 62 (confirming that “some of these patients are on Medicare/Medicaid”
and that the nurses’ records are created partially “[f]or purposes of billing that ultimately goes to
Medicare/Medicaid”). It is therefore reasonable that Defendant might have “feared being
reported to the government for fraud or sued in a qui tam action by the employee . . . .” See
Boston Scientific Corp., 864 F. Supp. 2d at 606 (quoting Sanchez, 596 F.3d at 1304). Any
adverse action taken by Defendant in retaliation for Plaintiff’s internal complaint, therefore,
would have fallen under the anti-retaliation provisions of 31 U.S.C. § 3730(h).
Defendant is also wrong to argue that Plaintiff’s internal complaint could not constitute
protected activity because Plaintiff admits that he never learned for certain whether the patient
whose dialysis treatment was allegedly misrepresented by Alba was covered under Medicare or
Medicaid. See Def.’s Mot. for Summ. J. 19; see also Pl.’s Dep. 6 (“I was not aware if the patient
was on Medicare or Medicaid.”). To prevail on a claim under 31 U.S.C. § 3730(h), it is not
necessary that the employee develop “a winning qui tam action.” United States ex rel. Yesudian
v. Howard Univ., 153 F.3d 731, 739 (D.C. Cir. 1998); United States ex rel. Brinlee v. AECOM
Gov’t Servs., Inc., No. 2:04-CV-310, 2007 WL 1232205, at *3 (W.D. La. April 25, 2007).
Rather, the statute requires only that the plaintiff have engaged in “acts . . . in furtherance of an
action under this section.” 31 U.S.C. § 3730(h). The provision protecting all acts “in
furtherance” of FCA litigation has been held to include “investigations, inquiries, testimonies, or
other activities.” Boston Scientific Corp., 864 F. Supp. 2d at 606 (collecting cases).
As described in Plaintiff’s deposition testimony, Plaintiff’s internal complaint and his
28

related threat to “report it to the regional operating director” could indeed have constituted
preliminary steps in such a protected investigation. Pl.’s Dep. 3. Later steps could have revealed
that Alba’s patient was indeed covered by Medicare or Medicaid, or that other similar
misrepresentations related to patients that were covered by Medicare or Medicaid, because at
least some percentage of Defendant’s dialysis patients are covered by these government
programs. See Pl.’s Dep. 6; Tapia Dep. 6.
The Court therefore finds that Defendant is not entitled to a judgment as a matter of law
based on the first element of Plaintiff’s prima facie case.
ii.

Notice

The second element of Plaintiff’s prima facie case is that “[t]he employer must be on
notice that the employee is investigating fraud.” Boston Scientific Corp., 864 F. Supp. 2d at 60708 (citing Patton, 418 F. App’x. at 372). It is sufficient merely that “the employee complained
directly to her supervisors,” so long as the employee “specifically tell[s] the employer that he is
concerned about possible fraud.” Id. (quoting United States ex rel. Smith v. Yale Univ., 415 F.
Supp. 2d 58, 105 (D. Conn. 2006)). At the same time, no “magic words”—such as “illegal” or
“unlawful”—are necessary to place the employer on notice of protected activity. Id. (citing
Fanslow v. Chi. Mfg. Ctr., Inc., 384 F.3d 469, 484 (7th Cir. 2004)). “To require an express or
even an implied threat of a qui tam action would impose an unrealistic requirement on
employees—insisting that employees inform their employers of their intention to sue them . . .
would eviscerate the FCA’s incentives to investigate fraudulent activities.” Id. (quoting Smith,
415 F. Supp. 2d at 105).
Here, the notice requirement is satisfied by Plaintiff’s allegation that he made internal
complaints in person to Tapia and over the telephone to Briffa on August 23, 2011, regarding the
29

act of “Medicare/Medicaid fraud” allegedly committed by Alba. Pl.’s Proposed Undisputed
Facts ¶¶ 18-20; Pl.’s Dep. 3. It is irrelevant that Plaintiff did not actually threaten a qui tam
action during these conversations, because the language allegedly used would have put
Defendant on “notice that the employee is investigating fraud.” Boston Scientific Corp., 864 F.
Supp. 2d at 607-08 (citing Patton, 418 F. App’x. at 372).
iii.

Adverse action because of the protected activity

As the last element of Plaintiff’s prima facie case, “a plaintiff must offer evidence that
would support a reasonable trier of fact in concluding that the plaintiff was terminated, at least in
part, because of her protected activity.” See id. at 609 (quoting Dyson, 2005 WL 2467689, at
*3); see also City of Dallas, 2011 WL 4912590, at *5 (citing Brandon v. Anesthesia & Pain
Mgmt. Assocs., Ltd., 277 F.3d 936, 944 (7th Cir. 2002)). “The showing necessary to demonstrate
the causal-link part of the prima facie case is not onerous; the plaintiff merely has to prove that
the protected activity and the negative employment action are not completely unrelated.” Boston
Scientific Corp., 864 F. Supp. 2d at 609 (quoting Dyson, 2005 WL 2467689, at *3).
Here, there is sufficient evidence to “clear the low bar required to establish a prima facie
case.” See id. at 608 (quoting Harrington, 668 F.3d at 32). Plaintiff was fired on August 30,
2011, only one week after the alleged internal complaints were made to Tapia and Briffa. Pl.’s
Dep. 23; Tapia Dep. 108-09. On this occasion, both Tapia and Briffa were present. Briffa Dep.
28-29. Tapia handed Plaintiff a letter explaining that his employment was terminated. Pl.’s Dep.
23; Tapia Dep. 108-09; Termination Letter. The letter’s signature block indicated that it was
from Tapia himself. See Termination Letter. Neither Tapia nor Briffa gave any explanation for
the termination of Plaintiff’s employment, nor did the text of the letter. Pl.’s Dep. 23; Tapia
Dep. 75, 96-97, 107-09; Briffa 28-29.
30

A prima facie case can, in some instances, be made on temporal proximity alone if “the
protected act and the adverse employment action are ‘very close’ in time.” Washburn v. Harvey,
504 F.3d 505, 511 (5th Cir. 2007). “[A] time lapse of up to four months has been found
sufficient to satisfy the causal connection for summary judgment purposes.” Evans v. City of
Houston, 246 F.3d 344, 354 (5th Cir. 2001). Here, only a week passed between Plaintiff’s
alleged protected activity and the termination of his employment. This is sufficient evidence to
conclude that the two events were not “completely unrelated.” See Boston Scientific Corp., 864
F. Supp. 2d at 609. Drawing all inferences in favor of the non-moving party, the Court therefore
concludes that Plaintiff has sufficiently established his prima facie case for the purposes of
Defendant’s Motion for Summary Judgment. See Man Roland, 438 F.3d at 478-79 (citing
Reeves, 530 U.S. at 150).
b.

Legitimate, nonretaliatory reason for termination

If the employee makes a prima facie showing of retaliation under the McDonnell Douglas
framework, the burden then shifts to the employer to articulate a legitimate, nonretaliatory reason
for the adverse employment action. See Richardson, 434 F.3d at 332; Davis, 383 F.3d at 317.
As this burden “is one of production, not persuasion, it can involve no credibility assessment.”
Reeves, 530 U.S. at 142; see also Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004) (“[T]he
employer need not prove that it was actually motivated by its proffered reason.”) (citing Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)).
In this case, Defendant has indeed articulated a legitimate, nonretaliatory reason for the
termination of Plaintiff’s employment. The proffered justification is Plaintiff’s disciplinary
history. Def.’s Mot. 22-24. As Tapia explains in his testimony, this included not only the
incident involving the patient at Providence Memorial on August 23, 2011, but also the
31

“accumulation” of Plaintiff’s disciplinary problems over the course of his six years as
Defendant’s employee. Tapia Dep. 107-12. According to Tapia, these problems included not
only the “write-ups” received by Plaintiff in 2006, 2008, and 2009, but also Plaintiff’s general
“problem with attitude.” Id. at 108. Indeed, the Fifth Circuit has held that an employer’s need to
prevent and punish employees’ insubordinate behavior in the workplace is a legitimate, nonretaliatory reason for discharging an employee. LeMaire v. La. Dep’t of Transp. & Dev., 480
F.3d 383, 390 (5th Cir. 2007); see also Corley v. La. ex rel. Div. of Admin., Office of Risk Mgmt.,
No. 11-31070, 2012 WL 5951550, at *2 (5th Cir. Nov. 29, 2012). Accordingly, Defendant has
successfully articulated a legitimate reason for the termination of Plaintiff’s employment.
c.

Evidence of pretext

At the third stage of the Court’s analysis, because Defendant has successfully articulated
a legitimate reason for the termination of Plaintiff’s employment, the burden now “shifts back to
the employee to show by a preponderance of the evidence that the employer’s articulated reason
is a pretext . . . .” See Richardson, 434 F.3d at 332-33; Davis, 383 F.3d at 319.
The Court has already reviewed the evidence produced by Plaintiff in support of his
prima facie case. This evidence again comes into play at the third stage of McDonnell Douglas,
where the Court once more “may consider evidence establishing [Plaintiff’s] prima facie case, as
well as inferences properly drawn therefrom, in its determination of whether [Defendant’s]
proffered explanation is pretextual.” See Laxton v. Gap, Inc., 333 F.3d 572, 582 (5th Cir. 2003)
(citing Reeves, 530 U.S. at 143). Besides “the strength of [Plaintiff’s] prima facie case,” Plaintiff
may also draw the Court’s attention to other facts that further indicate that Defendant’s
articulated reason is a pretext. See id. In the Court’s view, although each of the facts identified
by Plaintiff may individually be insufficient to demonstrate pretext, a reasonable fact-finder
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could find pretext in this case “[u]pon consideration of all of the evidence” collectively. See id.
The evidence is therefore sufficient to conclude at this stage that Defendant’s “explanation is
false or unworthy of credence . . . even without further evidence of [D]efendant’s true motive.”
Id. at 578 (citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)).
As the Court previously observed in its analysis of Plaintiff’s prima facie case, the
termination of Plaintiff’s employment occurred only one week after the alleged internal
complaint to Defendant’s senior staff members, Tapia and Briffa. Besides the close temporal
proximity of Plaintiff’s alleged internal complaint to the termination of Plaintiff’s employment, a
number of other circumstances indicate that Defendant’s proffered justification is a pretext.
First, the same two members of Defendant’s senior staff were involved in both Plaintiff’s
alleged protected activity and the termination of his employment. Plaintiff allegedly made
internal complaints only to Tapia and Briffa, and only Tapia and Briffa were present when he
received the letter of termination. Tapia and Briffa may also have interpreted Plaintiff’s threat to
“report it to the regional operating director” as an implied accusation that they had been
complicit in Alba’s alleged fraud, particularly since Plaintiff had emphasized the fact that Alba
was “still employed.” See Pl.’s Dep. 3-5; Tapia Dep. 89-90 (acknowledging that Plaintiff had
threatened to “go up to higher management” with his allegations). In a similar case where an
employee had lodged “complaints against her supervisors,” and “these same supervisors”
subjected the employee to a series of adverse measures, the United States District Court for the
Southern District of Mississippi has held that a reasonable juror might therefore infer retaliation.
Duhon v. Napolitano, No. 1:11-CV-334, 2013 WL 704894, at *7 (S.D. Miss. Feb. 26, 2013).
Such an inference would also be permissible here based on the involvement of Tapia and Briffa
in both the alleged protected activity and the termination of Plaintiff’s employment.
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Second, neither of these two men gave Plaintiff an explanation for the termination of his
employment, even though they had worked together for the previous six years. See Briffa Dep.
91 (confirming that there was no “discussion concerning the reasons” for Plaintiff’s termination);
Tapia Dep. 75, 96-97, 108 (confirming that Tapia “didn’t give [Plaintiff] . . . any reasons for his
termination.”); Pl.’s Dep. 23. Even the termination letter handed to Plaintiff by Tapia during this
exchange lacked any reasons for Plaintiff’s termination. See Termination Letter; Tapia Dep. 9697.
Additionally, important aspects of Defendant’s investigation into the incident at
Providence Memorial were not documented, “despite testimony that [Defendant] abides by
rigorous record-keeping policies.” See Laxton, 333 F.3d at 580. Defendant’s senior staff
members, including Tapia, Briffa, and a third senior administrator, Mr. Francisco Gamez, have
consistently emphasized in their testimony the importance of documentation in both medical
practice and employee administration. Gamez Dep. 9-10, ECF No. 31-2; Briffa Dep. 30; Tapia
Dep. 81. Tapia acknowledged in particular the need to conduct “a complete investigation” when
assessing the truth of a patient’s complaint about a nurse, and the need to “to talk to . . . all the
persons . . . that were involved.” Tapia Dep. 79-82. However, neither Tapia nor any other
member of Defendant’s senior staff ever interviewed Molina, who was Defendant’s only
employee present during the incident other than Plaintiff himself. Tapia Dep. 97, 103-04;
Molina Dep. 17-18. For his part, Molina testifies that there was nothing out of the ordinary
about Plaintiff’s interaction with the patient at Providence Memorial, and that Plaintiff “did fine”
on that occasion. See Molina Dep. 10-16.
Defendant has also failed to provide the Court with any testimony from the patient or his
wife, or even with their names. See Def.’s Mot. Summ. J.; Tapia Dep. 77-78; Tapia
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Investigation Notes. Even the brief affidavit from Isaacs, the Providence Memorial
administrator, failed to include the names of the patient and his wife or indicate any reason why
the names must be kept confidential. See Isaacs Decl. The Court has been provided with no
reason in this case for this consistent omission. 5 More to the point, Tapia apparently failed to
record the names of the patient and his wife even during the course of the pre-termination
investigation. See Tapia Dep. 77-78; Tapia Investigation Notes. The Fifth Circuit has found the
absence of “contemporaneous written documentation of any employee complaints, despite
testimony that the corporation abides by rigorous record-keeping policies,” to support an
inference of pretext. See Laxton, 333 F.3d at 580. In a matter as important as the termination of
an employee, the Court finds that the combination of Tapia’s failure to record the names of two
of the witnesses, the patient and his wife, and Tapia’s failure to interview the third witness,
Molina, is some evidence that the encounter with the patient at Providence Memorial was a
pretext for Plaintiff’s termination.
It is also significant, in the Court’s view, that Defendant relies so heavily on Plaintiff’s
history of disciplinary problems, even though only three of these incidents were documented
over the course of six years and the most recent of these incidents occurred almost two full years
prior to Plaintiff’s termination. See Def.’s Proposed Undisputed Facts ¶¶ 35, 65; September
2009 Warning. The document associated with the 2009 incident, moreover, purports on its face

5

While the Court certainly recognizes that matters involving the physician/patient relationship may be sensitive, no
physician/patient privilege can be invoked in a case governed purely by federal law and the Federal Rules of
Evidence. See Gilbreath v. Guadalupe Hosp. Found. Inc., 5 F.3d 785, 791 (5th Cir. 1993); United States v. Moore,
970 F.2d 48, 50 (5th Cir. 1992). Additionally, Defendant has not referred at any time to the parties’ detailed
Stipulated Confidentiality Agreement, ECF No. 19, in this context. In this agreement, the parties created procedures
by which “information designated as CONFIDENTIAL” would be filed “under seal in an envelope” and the Court
would be requested to review these documents in camera. See Stipulated Confidentiality Agreement 4-5.
Defendant has never invoked these procedures to protect the patient’s privacy and enable him to testify regarding the
seriousness of his complaints about Plaintiff.

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to be an “Initial Written Warning,” which appears to be the first step in a chain of progressive
disciplinary measures that also ordinarily would include “Final Written Warning,” “Suspension”
or “Suspension Pending Investigation,” and “Termination.” See September 2009 Warning.
Certainly, the fact that Defendant skipped over these intermediary warnings is not in itself
dispositive of pretext, because the “[f]ailure to follow internal procedures is generally not enough
to create a genuine issue of fact as to discriminatory motives.” Grubb v. Southwest Airlines, 296
F. App’x 383, 390, 2008 WL 4538313 (5th Cir. 2008) (citing Moore v. Eli Lilly & Co., 990 F.2d
812, 819 (5th Cir. 1993)). Nonetheless, the Fifth Circuit demonstrated in Russell v. McKinney
Hospital Venture that a district court may rely in part on an employer’s lax application of its own
internal disciplinary procedures as evidence of pretext, particularly where the employee had very
recently “received a very favorable evaluation from her supervisor.” See Russell v. McKinney
Hosp. Venture, 235 F.3d 219, 224 (5th Cir. 2000). Indeed, that was precisely the situation in
Plaintiff’s case, since Briffa had stated in a written evaluation that Plaintiff had shown “great
improvement in his work quality and attitude” and “[p]ractices a patient-first attitude every day,
every patient, every treatment.” Briffa Dep. 66-69, 77. Upon consideration of all this evidence
as a whole, a jury could reasonably conclude that Defendant’s references to Plaintiff’s old
disciplinary problems are merely “a laundry list of violations to justify a predetermined decision”
to terminate Plaintiff’s employment. See Laxton, 333 F.3d at 582.
Accordingly, after a careful review of the record, the Court finds that Plaintiff has
demonstrated that a reasonable jury could find by a preponderance of the evidence that
Defendant’s articulated justification for terminating Plaintiff’s employment is only a pretext. In
particular, the Court finds significant the brief period of one week between Plaintiff’s alleged
protected activity and Plaintiff’s termination, the involvement of Tapia and Briffa in both events,
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Tapia’s failure to provide any reasons for Plaintiff’s termination in person or in the termination
letter, the failure to record the names of two key witnesses to a critical event and the failure to
interview the third and only other key witness, and Defendant’s reliance on very old disciplinary
problems to justify its decision.
Taken together, the combined effect of this evidence is sufficient for a reasonable factfinder to conclude that Defendant’s “explanation is false or unworthy of credence . . . even
without further evidence of [D]efendant’s true motive.” See Laxton, 333 F.3d at 578 (citing
Sandstad, 309 F.3d at 897). Under the McDonnell Douglas framework, therefore, Plaintiff’s
claim of FCA retaliation must be submitted to a jury. See Richardson, 434 F.3d at 332-33;
Davis, 383 F.3d at 319. Defendant’s Motion for Summary Judgment is DENIED.
III.

CONCLUSION
For the reasons stated herein, Plaintiff’s Motion for Summary Judgment, ECF No. 23, is

DENIED.
Defendant’s Motion for Summary Judgment, ECF No. 24, is DENIED.
Plaintiff’s Motion to Strike Evidence, ECF No. 28, is DENIED.
Plaintiff’s Motion for an Oral Hearing, ECF No. 34, is DENIED.
Defendant’s Motion to Strike Evidence, ECF No. 37, is DENIED.
SO ORDERED.
SIGNED this 18th day of March, 2013.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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