/>iA September 2016 decision in a False Claims Act (“FCA”) whistleblower retaliation case clarified the broad scope of protected whistleblowing for whistleblowers that suffer for retaliation for trying to stop fraud.
In United States ex rel. Lee v. N. Adult Daily Health Care Ctr., No. 13-CV-4933-MKB, 2016 WL 4703653 (E.D.N.Y. Sept. 7, 2016), the whistleblowers were former employees of Defendant Northern Adult Daily Health Care Center, a day-care center for elderly and low-income people. The whistleblowers alleged that Northern Adult retaliated against them for their complaints about several deficiencies, including Northern Adult’s unsanitary handling of food, lack of training for food-service staff, provision of alcohol to registrants, failure to provide physical therapy to residents, and disparately poor treatment of Black and Latino residents. Northern Adult took several retaliatory actions against the whistleblowers, including terminating their employment, for their attempts to stop the perceived fraud.
In denying a motion to dismiss, the court clarified several key aspects concerning FCA whistleblower protection:
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A plaintiff need not plead an FCA retaliation claim with particularity because no showing of fraud is required. at *5–6.
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False Claims Act protected conduct includes:
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“lawful acts done by the employee . . . in furtherance of an action under the FCA”; and
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“other efforts to stop one or more violations of the FCA.” at *13.
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Efforts to stop an FCA violation are protected “even if the employee’s actions were not necessarily in furtherance of an FCA claim.” (quoting Malanga v. N.Y.U. Langone Med. Ctr., No. 14-CV-9681, 2015 WL 7019819, at *2 (S.D.N.Y. Nov. 12, 2015)).
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Under the 2009 amendments to the FCA, complaining of regulatory violations may qualify as an “effort[] to stop 1 or more violations.” at *14. The heightened standard of notice that was applied in pre-2009 FCA retaliation decisions, furthermore, is no longer valid because there is no longer a requirement to show “notice of an employee’s intentions of bringing or assisting in an FCA action.” Id.
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Temporal proximity of less than five months is sufficient to plead causation. at *15.
