On March 29, 2022, the U.S. District Court for the Southern District of Florida held that in order to engage in protected conduct under the False Claims Act (“FCA”), a plaintiff must specifically suspect that their employer has made a false claim for payment to the federal government; vague suspicions of fraud or misuse of funds is not enough.  Swartz v. Interventional Rehabilitation of South Florida, Inc., No. 21-14137 (S.D. Fla. 2022).

Background

Plaintiff, a physician who worked for a pain management practice, sued his former employer for retaliation under both the federal False Claims Act and the Florida Whistleblower Act.  Plaintiff alleged that he was terminated after he sent four emails raising concerns about the employer’s policy on recording medical information.  The employer maintained that it made the termination decision before Plaintiff sent the emails after it received several complaints from other employees that he had engaged in unprofessional behavior.

Ruling

The court granted summary judgment in favor of the employer as to both retaliation claims.  To bring a retaliation claim under both federal and Florida law, a plaintiff must first show that they engaged in protected activity.  To engage in “protected activity” under the FCA, a plaintiff must object to a false claim for payment to the federal government.  Citing precedent from the Eleventh Circuit, the court concluded that “it is not enough for an employee to ‘suspect fraud’ or ‘suspect misuse of federal funds.’”  Rather, “an employee must suspect that her employer had made a false claim to the federal government.”  The court concluded that Plaintiff did not engage in protected activity under this standard because his emails did not reference any submission of false claims for payment to the government.

The court also found that, even though some of emails plausibly constituted protected activity under Florida law (because they raised concerns about what Plaintiff believed to be illegal activity by his employer), Plaintiff could not show that these emails were the basis for his termination, since the employer established that the termination decision predated the emails.

Implications

This ruling confirms that “protected activity” for purposes of the FCA is construed narrowly to encompass only objections to a false claim for payment to the federal government.