Opinion
Civil Action 5:19-cv-00304-TES
05-27-2021
UNITED STATES OF AMERICA ex rel Michael A. Rehfeldt, Plaintiff, v. COMPASSIONATE CARE HOSPICE GROUP, INC.; COMPASSIONATE CARE HOSPICE OF CENTRAL GEORGIA, LLC; COMPASSIONATE CARE HOSPICE OF SAVANNAH, LLC; AND COMPASSIONATE CARE HOSPICE OF LAKE AND SUMTER, INC., Defendants.
ORDER
TILMAN E. SELF, III, JUDGE.
Originally, Plaintiff Michael A. Rehfeldt (“Plaintiff”), on behalf of himself and the United States, filed this qui tam action against his former employer, Compassion Care Hospice, for alleged violations under the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. [Doc. 1]. Since that original filing, Plaintiff has moved to voluntarily dismiss all claims alleged on behalf of the Untied States. [Doc. 33]; [Doc. 34]. At this stage of the proceedings, the only claim remaining is one that Plaintiff brings on his own behalf for retaliatory discharge in violation of the FCA. See 31 U.S.C. § 3730(h). Defendants Compassion Care Hospice Group, Inc., and its subsidiaries, now move to dismiss this last remining claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See generally [Doc. 28-1, pp. 23-25]. For the reasons discussed below, the Court GRANTS Defendants' Motion to Dismiss [Doc. 28].
The named Defendants in this action include the following entities: Compassionate Care Hospice Group, Inc., Compassionate Care Hospice of Central Georgia, LLC, Compassionate Care Hospice of Savannah, LLC, and Compassionate Care Hospice of Lake and Sumter, Inc. In this Order, the Court will collectively refer to these entities as either “Defendants” or “CCH.”
I. BACKGROUND
A. Qui Tam Action against Vitas Healthcare Corporation
For purposes of ruling on this matter, it is first necessary to detail Plaintiff's alleged involvement in a qui tam action against a different hospice care provider-Vitas HealthCare Corporation (“Vitas”). In 2008, Plaintiff started his employment with Vitas as the general manager of its San Antonio hospice facility. [Doc. 1, ¶ 8]. During his employment, Plaintiff claims he reported concerns to management regarding the facility's admission of ineligible patients for hospice and fraudulent certifications. [Id.]. Specifically, he stated that he reported these concerns to then-Chief Operating Officer Peggy Pettit. [Id.]. On January 20, 2009, Plaintiff filed a qui tam action against Vitas alleging that the hospice care provider “defrauded the United States through a systematic pattern and practice of referring and enrolling non-terminal patients for hospice.” [Id. (quoting Complaint at ¶ 16, Rehfeldt ex rel. United States and Texas v. Vitas Healthcare Corp., et al., No. 3:09-cv-00203-B (N.D. Tex.))]. Four years later, in April 2013, Plaintiff voluntarily dismissed his qui tam action against Vitas. [Doc. 1, ¶ 8]. The United States Department of Justice then filed its own suit (on behalf of the United States) against Vitas for its alleged fraudulence. [Id.]. Around October 2017, the United States and Vitas “reached a high-profile, $75 million settlement of the False Claims Act cases pending against Vitas.” [Id.]. Plaintiff's qui tam action, which he voluntarily dismissed, was not involved in this settlement. [Id. at n.6].
B. Plaintiff's Employment with Compassion Care Hospice
Following his employment with Vitas, Plaintiff went to work for another hospice care provider. The following facts surrounding Plaintiff's employment with this provider largely constitute the basis for his present action. In September 2016, Plaintiff gained employment with Compassion Care Hospice as the Program Director at the Warner Robins facility-the highest managerial position offered at that facility. [Id. at ¶ 9]. In this role, Plaintiff was responsible for “managing all employees”, “hiring staff for [the] office[] as needed, and “responding to complaints made by patients and/or their families regarding hospice care[.]” [Id. at ¶ 10]. As the “head of the [Warner Robins] office, ” he reported to CCH and CCH-Georgia. [Id. at ¶ 9]. In addition to his role as Program Director at the Warner Robins facility, from July 2017 to March 2018, Plaintiff served as Interim Program Director at the CCH Savannah facility. [Id.]. Ultimately, in February 2018, Plaintiff was re-assigned to serve as Program Director at the CCH Lake and Sumter facility in Florida. [Id.].
Plaintiff alleges that during his employment with Defendants, he learned that its facilities admitted patients who were not eligible for hospice treatment, and therefore submitted false claim to Medicare. [Id. at ¶ 11]. In support of this broad allegation, Plaintiff alleges he observed and reported the following examples of fraudulent conduct. First, in September 2016, Plaintiff claims that he spoke to the then-medical director of the Warner Robins facility, Dr. Mohammad Naife Al-Shroof, about the admittance of approximately 20 patients who were not diagnosed as terminally ill and therefore not eligible for hospice care. [Id. at ¶ 11]. Dr. Al-Shroof apparently confirmed to Plaintiff that certain non-terminally ill patients were admitted into the program upon explicit instruction from CCH management. [Id.]. Within that same month, Plaintiff reported his concern about this practice to CCH Chief Executive Officer Judith Grey. [Id. at ¶ 11]. He specifically alleges making the recommendation to Ms. Grey that CCH management discharge these wrongly admitted patients from hospice care and then take action to refund the federal payments it received from the Medicare program for the admittance of such patients. [Id. at ¶¶ 11, 66].
Furthermore, as it relates to Dr. Al-Shroof, Plaintiff claims that the medical director did not attend Interdisciplinary Group (“IDG”) team meetings or review patient's medical records. [Id. at ¶ 73]. Apparently, hospice care providers are statutorily required to designate teams of healthcare professionals-an IDG-to oversee a hospice patient's treatment plan. [Id. at ¶¶ 39-45]. Plaintiff claims these absences occurred in direct violation of 42 C.F.R § 418.56, and to make matters worse, the absences were intentionally concealed by medical personnel who forged physicians' signatures on IDG team meeting attendance sheets. [Id. at ¶ 72]. Plaintiff claims he once again brought this issue to Ms. Grey's attention, who informed him that CCH intended to repay Medicare for the claims submitted. [Id. at ¶ 74]. Similarly, in December 2016, Plaintiff reported that the December 2015 IDG attendance sheet had been forged. [Id. at ¶ 75]. Apparently, Ms. Grey told Plaintiff to ignore the forgeries and lie about other forged IDG team meeting attendance sheets. [Id.].
Beyond the aforementioned examples, Plaintiff also claims CHH medical directors participated very little in the IDG process and made no independent effort to verify patient eligibility for hospice care. [Id. at ¶ 71]. On an undisclosed date, he observed a secretary forge a physician's signature to certify a patient for Medicare Hospice. [Id. at ¶ 12]. And, Plaintiff alleges that Defendants utilized aggressive marketing schemes, such as marketing quotas, to admit ineligible patients for hospice care. [Id. at ¶ 67]. Plaintiff claims that he reported these issues to CCH management, and specifically to Judith Grey. [Id. at p. 8].
Plaintiff alleges that Defendants admit ineligible parties through an “aggressive marketing scheme[] [whereby] Defendants solicit heir hospice services directly to potential patients, their families, and physicians through sales employees known as ‘marketers.'” [Doc. 1, ¶ 67]. Allegedly, these marketers were expected to meet monthly quotas for admitted patients or else risk termination. [Id.].
C. Plaintiff's Termination by CCH Management
As it relates to his job performance, Plaintiff contends that he received multiple promotions during his employment with CHH and was “recognized as a valuable employee and effective Program Director.” [Id. at ¶¶ 77-79]. He claims that he received such high praise by management up until March 2018, when he participated in a telephone conference with two individuals that he claims knew about his qui tam action against Vitas in 2009. [Id. at ¶ 81]. Up until the date of this conference, Plaintiff alleges that CCH management was completely unaware of his former status as a whistleblower [Id.]. However, he contends that shortly after this conference, (and in spite of his otherwise exemplary employment record) he was terminated by CCH management. [Id. at ¶ 82]; see also [Id. at ¶ 80 ([Plaintiff] participated in a conference telephone call . . . that was the catalyst to [his] retaliatory termination.”)].
The Court pauses in its recitation of the facts to merely note that Plaintiff does not provide much detail regarding the specifics of this telephone conference. Rather, the facts are quite sparse on the matter. From the pleading, it appears that Plaintiff participated in a telephone conference in late March 2018 with the Florida Hospices and Palliative Care Association. [Id. at ¶ 80]. Judith Grey was present for the call. [Id.]. As other participants joined the telephone conference, Plaintiff became aware that two of the participants “were familiar with [him] and his status as a whistleblower: Vitas Executive Vice President Peggy Pettit and Samira Beckwith from Hope Hospice.” [Id.]. Plaintiff bases this belief in the fact that, during his time at Vitas, he reported his concerns about the company's fraudulent conduct to Peggy Pettit. [Id.]. And, for background as to Samira Beckworth, he simply alleges “that he had worked with [her] when he was employed at Vitas and she was employed at Hope Hospice.” [Id.]. There are no facts alleged regarding the content of the call.
On April 27, 2018, Plaintiff was terminated from his employment with CHH. [Id. at ¶ 82]. There were several CCH executives present for his termination-including Judith Grey. [Id.]. The purported reason for his termination, as supplied by CCH management, was that Plaintiff had inappropriately provided bonuses to a CCH marketer by “transferring credit to her from another marketer.” [Id. at ¶ 83]. Plaintiff does not dispute that he transferred credit to the employee but claims that he had a valid reason for the transfer. [Id.]. However, he claims that CCH management did not allow him to proffer such a reason before terminating him, which was in direct violation of the hospice care provider's standard policy. [Id.]. Plaintiff disputes the reason for his termination as pretext. [Id.].
II. LEGAL STANDARD
Defendants seek to dismiss Plaintiff's unlawful retaliation claim for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See [Doc. 28-1, pp. 23- 25]. At the pleading stage, a complaint alleging unlawful retaliation under the FCA must comply with those pleading requirements set forth in Federal Rule of Civil Procedure 8(a)(2). See Reddick v. Jones, No. 1:14-CV-0020-AT, 2015 WL 1519810, at *3 (N.D.Ga. Mar. 11, 2015) (“A claim brought pursuant to the FCA's anti-retaliation provision does not depend on allegations of fraud, and thus, a complaint alleging retaliation need only [comply with Federal Rule of Civil Procedure 8(a)(2)].”)). Therefore, a plaintiff's complaint need only contain a “short and plain statement of the claim showing that [he] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). When a complaint fails to state such a claim, then it is subject to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). However, a complaint survives a Rule 12(b)(6)-based motion if it alleges sufficient factual matter (accepted as true) that states a claim for relief that is plausible on its face. McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir. 2018) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). Furthermore, in ruling on a motion to dismiss, the court must construe the facts pleaded in the complaint in the light most favorable to the plaintiff. Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008).
Although Federal Rule of Civil Procedure 8 does not require detailed factual allegations, it does require “more than [ ] unadorned, the-defendant-unlawfully-harmed-me accusation[s].” McCullough, 907 F.3d at 1333 (citation omitted). The issue to be decided when considering a motion to dismiss is not whether the claimant will ultimately prevail, but “whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scheuer, 468 U.S. 183 (1984). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 545, 555 (second alteration in original). Finally, complaints that tender “‘naked assertion[s]' devoid of ‘further factual enhancement'” will not survive against a motion to dismiss. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (alteration in original). Stated differently, the complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim. Twombly, 550 U.S. at 556. Having outlined the relevant standard, and taking the facts asserted in Plaintiff's Complaint as true, the Court now rules on Defendants' Motion to Dismiss.
III. DISCUSSION
Plaintiff claims that the purported reason given by CCH management regarding his termination was merely a “thin pretext to hide [CCH's] unlawful retaliation against him” for his lawful acts taken in furtherance of his qui tam action against Vitas and his efforts to prevent CCH from submitting false claims to the Medicare program. [Doc. 1, ¶ 87.] Plaintiff seeks recovery under the anti-retaliation provision of the FCA, 31 U.S.C. § 3170(h). Defendants move to dismiss this action on the basis that Plaintiff has failed to sufficiently plead all elements necessary to state a viable retaliation claim under the statute. Accordingly, to resolve whether Plaintiff has sufficiently pled such a claim, the Court first considers the relevant statutory framework.
A. Pleading a Retaliation Claim under the FCA
An employee who suffers an adverse employment action for attempting to expose fraudulent conduct perpetrated by his employer against the United States of America, may pursue relief under the anti-retaliation provision of the FCA. The relevant provision states that
[a]ny employee . . . shall be entitled to all relief necessary to make that employee . . . whole, if that employee . . . is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee . . . in furtherance of an action under [the False Claims Act] or other efforts to stop 1 or more violations of this subchapter.31 U.S.C. § 3730(h). To summarize, a plaintiff must plead facts to show that he was unlawfully discriminated against in the terms and conditions of his employment for engaging in a protected activity. United States v. HPC Healthcare, Inc., 723 Fed.Appx. 783, 791 (11th Cir. 2018); see also Mack v. August-Richmond Cnty., 148 Fed.Appx. 894, 896-97 (11th Cir. 2005). The plaintiff is also required to “establish a causal connection between the retaliation and the protected activity; that is, [h]e must show that the retaliation was ‘because of' the protected activity. HPC Healthcare, Inc., 723 Fed.Appx. at 792. It then makes sense, that to establish this causal connection, the plaintiff must show that the person or entity engaging in the retaliatory conduct had knowledge about the protected conduct.
As it relates to this action, there is no question that Plaintiff has sufficiently alleged unlawful discrimination by claiming that his employer terminated him. See 31 U.S.C. § 3730(h)(1) (citing discrimination to include “discharge”). However, there is a question as to whether Plaintiff has sufficiently pled the other elements necessary to state a retaliation claim under the FCA. In moving to dismiss this claim, Defendants argue that Plaintiff has failed to allege that he engaged in any protected activity. See generally [Doc. 28-1, pp.]. And, Defendants argue, even had Plaintiff sufficiently alleged protected activity, he still failed to establish a causal connection between it and the alleged discrimination-his termination. [Id.]. As Defendants appropriately note, a failure to adequately plead either element dooms Plaintiff's retaliation claim.
It does not appear that Defendants challenge the sufficiency of Plaintiff's allegation that he was terminated by CCH. See [Doc. 28].
Since Plaintiff alleges that he engaged in more than one form of protected activity-but suffered only one ultimate act of retaliation as a result-the Court finds it clearer to first outline the relevant caselaw defining each element. Upon providing such an outline, the Court will then analyze whether any of Plaintiff's alleged protected activity actually constitutes protected activity. Then, within that same analysis, the Court will analyze whether the facts sufficiently allege a causal connection.
1. Protected Activity
The first element of a retaliation claim under the FCA requires a plaintiff to sufficiently plead that he engaged in protected activity. Protected activity is defined as either (1) “lawful acts done by the employee . . . in furtherance of an action under [the False Claims Act], or (2) “other efforts to stop 1 or more violations of [the False Claims Act].” Id. (quoting 31 U.S.C. § 3730(h)). The first prong of this provision “provides an avenue for employees to report violations of the statute related to qui tam actions.” Katterheinrich v. Al-Razaq Computing Services, No. 5:17-cv-01797-LCB, 2020 WL 5847648, at *5 (N.D. Ala. 2020). In fact, “[t]he prototypical example of conduct protected by the FCA is the filing of an FCA claim” through avenues such as these. Ortino v. Sch. Bd. of Collier Cnty., No. 14-cv-693-FtM-29CM, 2015 WL 1579460 (M.D. Fla. Apr. 9, 2015). A qui tam action is one in which a private citizen pursues a civil action on behalf of the United States to recover losses caused by fraudulent acts committed against the United States. United States ex rel. Heller v. Guardian Pharmacy, LLC, No. 1:18-cv-03728-SDG, 2021 488305, at *4 (N.D.Ga. Feb. 10, 2021). However, a lawful act taken “in furtherance of an action under the FCA” does not require a plaintiff to have alleged that he filed a qui tam action. [CAS ] Rather, the relevant inquiry under this first prong, is merely, whether there was at least a distinct possibility of litigation under the FCA at the time of the employee's actions. United States ex rel. Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 1303 (11th Cir. 2010) (per curiam) (citing Childree v. UAP/GA AG Chem, Inc., 92 F.3d 1140, 1146 (11th Cir. 1996). The Eleventh Circuit has provided guidance on how district courts can appropriately apply this ‘distinct possibility' standard. “If an employee's actions, as alleged in the complaint, are sufficient to support a reasonable conclusion that the employer could have feared being reported to the government for fraud or sued in a qui tam action by the employee, then the complaint states a claim for retaliatory discharge under § 3730(h).” Sanchez, 596 F.3d at 1304 (citing Mann v. Olsten Certified Healthcare Corp., 49 F.Supp.2d 1307, 1314 (M.D. Ala. 1999).
There is a second prong to this statutory provision, which the Eleventh Circuit has not yet articulated a definite standard for the district courts to apply. See Hickman v. Spirit of Athens, Alabama, Inc., 985 F.3d 1284, 1288 (11th Cir. 2021) (declining to hold what standard applies for would-be plaintiffs alleging they engaged in “efforts to stop” FCA violations). The “other efforts” prong of the provision was an amendment to the original retaliation statute, and it very clearly expanded the definition of protected activity. “In other words, the amendment[] expanded retaliation coverage to at least some set of people who make “efforts to stop” [FCA] violations-even if those efforts do no lead to a lawsuit or to the ‘distinct possibility' of a lawsuit.” Id. And while the parameters of such a standard may not be fully drawn in this Circuit, it remains clear that any alleged protected activity under this prong “must still be aimed at stopping an FCA violation.” Vazquez v. Upson Cnty. Hosp., No. 5:18-cv-00073, 2019 WL 5395447, at *7 (M.D. Ga. Oct. 22, 2019) (quoting United States v. LifePath Hospice, Inc., No. 8:10-cv-1061-T-30TGH, 2016 5239863, at *10 (M.D. Fla. Sept. 22, 2016)).
2. Causal Connection
It is not sufficient for a plaintiff to allege that he engaged in protected activity and suffered an adverse employment action. There must be a causal connection between the two. This means that a plaintiff must “'show that the harm [he suffered] would not have occurred in the absence of[, ] that is, but for' his protected conduct.” Nesbitt v. Candler Cnty., 945 F.3d 1355, 1358 (11th Cir. 2020) (quoting Univ. of. Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346-47 (2013); see also Reynolds v. Winn-Dixie Raleigh Inc., 620 Fed.Appx. 785, 792 (11th Cir. 2015) (discussing how the but-for causation standard applies to retaliation claims under the FCA). To meet this standard, at a minimum, a plaintiff must show that his employer was at least aware of the protected activity. United States ex rel. Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 1303 (11th Cir. 2010) (per curiam); see also HPC Healthcare, Inc., 723 Fed.Appx. at 792 (finding no causal connection to exist where plaintiff failed to allege that his employer was aware of his protected activity). All this said, it should be noted that “[t]he showing necessary to demonstrate the causal-link part of the prima face case [of retaliation] is not onerous; the plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.” U.S. v. Lockheed Martin Corp., 927 F.Supp. 1338, 1348 (N.D.Ga. 2013) (quoting Mann v. Olsten Certified HealthCare Corp., 49 F.Supp. 1307, 1317 (M.D. Ala. 1999).
B. Application to Plaintiff's Retaliation Allegations
The Court now turns to whether Plaintiff has sufficiently pled a claim for retaliation in light of the foregoing standards. Plaintiff claims that he engaged in two distinct protected activities that could have given rise to his termination. First, Plaintiff alleges that he was “terminated because of lawful acts in furtherance of his qui tam action against Vitas[.]” [Doc. 1, ¶ 87]. And second, Plaintiff alleges he was terminated for “his efforts to stop CCH from submitting false claims to the Medicare program[.]” [Id.]. As noted, Plaintiff claims the adverse employment action to result from each alleged protected activity is his termination.
1. Lawful Acts Taken In Furtherance Of
a) Qui Tam Action Against Vitas
Plaintiff alleges that Defendants terminated him as a result of learning that he filed a qui tam action as a whistleblower under the FCA against his prior employer- Vitas. He alleges that the efforts he undertook to file that qui tam action in 2009 constitute protected activity in the action he now brings against an unrelated employer-CCH. In support of this position, Plaintiff argues that the plain text of the anti-retaliation provision does not require that his alleged protected activity be taken against the terminating employer. [Doc. 35, p. 12]. Similarly, he cites to a series of cases (non-controlling) that he claims support the conclusion that a qui tam action against a former employer constitutes protected activity in an action against an unrelated employer. [Id. (citing cases)]. The Court is not necessarily persuaded.
Rather than structure an argument based on caselaw from other jurisdictions, it might have been helpful for Plaintiff to first consider the standard set forth in this jurisdiction regarding what constitutes protected activity. The Eleventh Circuit set forth the ultimate question to consider upon ruling on whether actions constitute protected activity. See Sanchez, 596 F.3d at 1303-04. “The question here, then, is whether [a plaintiff's] complaints of illegal activity occurred when there was a distinct possibility that she or the government would sue the defendants under the False Claims Act.” Id. The Court need only input the relevant facts of this action into that question's framework to have its answer:
Did Plaintiff's qui tam action against Vitas occur when there was a distinct possibility that he or the government would sue Defendants (i.e., CCH) under the False Claims Act?
The Court, upon considering only the facts as pled, cannot answer this question in the affirmative. In his Complaint, the only efforts that Plaintiff alleges he undertook in “furtherance of” this qui tam action occurred in 2009 when he initiated the proceedings. His case was ultimately dismissed in 2013. Therefore, the Court, finds it difficult to conclude that at the time Plaintiff's filed his qui tam action against Vitas there was even a distinct possibility that he would sue Defendants (who he was not yet employed with) for FCA violations.
In Plaintiff's Response [Doc. 35] to Defendants' dismissal motion, he claims that he was involved in the October 2017 Vitas Settlement and engaged in the “protected activity of continuing to take lawful action in furtherance of that FCA case up to the time of the October 2017 settlement.” [Doc. 35, p. 14]. However, Plaintiff did not allege such involvement in his Complaint. The Court cannot now turn to a subsequent filing and attempt to make out a retaliation claim upon new allegations. Therefore, the Court must only consider those facts alleged in Plaintiff's Complaint.
However, even if the Court were to give some credence to this argument, and conclude that this conduct constituted protected activity, Plaintiff still fails to show the second requisite element for a relation claim: a causal connection between it and his termination. In fact, Plaintiff's Complaint largely requires the Court to read-between-the lines and assume a causal connection exists based on non-descript behaviors. To summarize, here are the facts alleged to support a causal connection between his protected activity and his termination:
• Plaintiff was a valuable employee who received high praise and glowing performance reviews throughout his employment with CCH.
• In late March 2018, Plaintiff participated in a telephone conference.
• Prior to the date of this telephone conference, no one in CCH management was ware of Plaintiff's status as an FCA whistleblower.
• Judith Grey-one of the CCH employees allegedly involved in Plaintiff's termination-participated in this conference.
• Two individuals who were allegedly aware that Plaintiff had previously filed a qui tam action against Vitas were also participants on the call.
• Plaintiff was terminated the month immediately following this telephone conference.
Nowhere in this sparse collection of facts does Plaintiff allege that Judith Grey, or any person involved in his termination, actually had knowledge of his role in the qui tam action against Vitas. See United States v. HPC Healthcare, Inc., 723 Fed.Appx. 783, 792 (11th Cir. 2018) (citing United States ex rel. v. Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998) (stating that “because of language in § 3730(h)(1) requires the employee to show that the employer had knowledge of the protected activity and was motivated to retaliate, at least in part, by the protected activity))). To conclude otherwise would require the Court to infer facts not in existence.
2. Other Efforts to Stop Violations of the False Claims Act
b) Falsified Medical Documentation and Certifications
In his next attempt to state a retaliation claim, Plaintiff claims that he engaged in protected activity by reporting to Judith Grey that Dr. Al-Shroof routinely failed to attend IDG meetings and engage in clinical decision making. He alleges that such failure occurred in direct violation of regulatory code provisions. As a general matter, to allege protected activity “[a] plaintiff must do more than investigate or complain about an employer's improper conduct; a plaintiff must have specifically investigated or complained about the employer making false claims for federal funds[.]” Vazquez, 2019 WL 5395447, at *8 (quoting Bouknight Houston Ind. Sch. Dist., No. H-06-1057, 2008 WL 110427, at *4 (S.D. Tex. Jan. 8, 2008); see also Hale v. Moreland Altobelli Assocs., Inc., No. 1:14-cv-00065-WCO, 2014 WL 12235187, at *6 (N.D.Ga. Sept. 4, 2014). Quite often an FCA retaliation claim fails simply because the conduct alleged does not fall under the FCA. Cervalli v. Piedmont Healthcare, Inc., No. 1:20-CV-2790-TWT, 2021 WL 1053537, at *4 (N.D.Ga. Jan. 5, 2021). Furthermore, this inquiry is made difficult when “an employee's duties include reporting wrongdoing to [his] superiors, ” because “simply reporting that wrongdoing cannot amount to protected conduct [when] the employee is simply doing what [he] was obligated to do.” United States ex rel. Parato v. Unadilla Health Care Center, Inc., 787 F.Supp.2d 1329, 1342 (M.D. Ga. 2011). In respect to this point, Plaintiff was the program director for the Warner Robins facility where Dr. Al-Shroof worked as the medical director. In his Complaint, Plaintiff admits that part of his responsibilities in this role included managing all employees. Therefore, it would make sense, that upon Plaintiff's observance of Dr. Al-Shroof's alleged failure to comply with the internal polices of the facility as well as federally mandated code regulations, that he would find it prudent, at the very least, to report such observations to management. See Mack v. August-Richmond Cnty., Ga., 365 F.Supp. 1362, 1380 (S.D. Ga. 2005) (“Indeed, why would an employer fear that an employee reporting non-compliance, whose job responsibilities include ensuring regulatory compliance, seek[] to file a False Claims Act suit or report fraud to the government?”). However, this is not to say that such internal reports, as exampled here, never constitute protected activity. Where an employee stresses the unlawfulness of a defendant's action and warns them of the potential to incur civil or criminal liability as a result, then this could clearly prove sufficient to constitute protected activity. See United States ex rel. Sanchez v. Lympatx, Inc., 596 F.3d 1300, 1304.
Upon review of Plaintiff's Complaint, he fails to detail any allegation that he informed Judith Grey (the person he reported Dr. Al-Shroof's conduct to) about the illegality of the medical director's behavior. However, even accepting this internal reporting as protected activity, Plaintiff once again fails to establish a causal connection between it and his termination. All of these alleged reports to Judith Grey occurred while Plaintiff was employed at the Warner Robins facility in 2016-two years before his termination in 2018. There are no further facts alleged regarding how these reports resulted in his termination. Therefore, the only way to establish a causal connection in the absence of any other facts, would be to show temporal proximity between the two. “The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that temporal proximity must be ‘very close.'” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). And a two-year period is simply not very close. See Faircloth v. Herkel Investments Inc., 514 Fed.Appx. 848, 852 (11th Cir. 2013) (requiring plaintiff to demonstrate that there was less than a three-month gap between his complaint and termination to establish causation based on temporal proximity). Based upon these cases, the Court rejects Plaintiff's argument that he can establish temporal proximity by showing that his termination occurred at some point after the protected activity.
CONCLUSION
For the reasons discussed above, Defendants' Motion to Dismiss [Doc. 28] is GRANTED.
SO ORDERED.