Health Law Daily Wrap Up, FALSE CLAIMS ACT—E.D. Pa.: Workplace harassment termination was not a pretext for retaliation, (Mar 11, 2021)

By Robert B. Barnett Jr., J.D.

Termination based on a fully investigated charge of workplace harassment did not serve as a pretext for retaliation, in the absence of any causal connection between the two.

A healthcare fraud investigator’s retaliation suit against his former employer was dismissed because the evidence established that he was terminated solely for workplace harassment rather than for any reasons related to retaliation, a Pennsylvania federal district court has ruled. In the burden-shifting approach used in retaliation cases, the investigator established his retaliation claim and the employer then demonstrated a legitimate non-retaliatory reason for the termination, but, when the burden shifted back to the investigator, he was unable to provide any proof that the legitimate reason was a mere pretext for retaliation. The supervisors who terminated him conducted a full investigation and knew nothing of the retaliation claim (Crosbie v. Highmark, Inc., March 9, 2021, Baylson, M.).

Background. Alastair Crosbie worked as a healthcare fraud investigator. His employment relationship was murky, with the court concluding that he was the employee of Highmark Inc, Highmark Health Options, and Gateway Health Plan. Highmark is a managed care organization that contracted with the state of Delaware to provide insurance services for Medicaid-eligible residents and Gateway supplied support services. Fortunately, the employer-employee murkiness was not germane to the decision. In one of his investigations, Crosbie discovered that Highmark was working with an uncertified healthcare provider, which meant that any related claims that Highmark submitted were potential violations of the False Claims Act and that Highmark had an obligation to report the irregularities to Delaware. He reported this information to his supervisors, and he was terminated.

Crosbie sued both Highmark and Gateway In Pennsylvania federal court for retaliation, in violation of the False Claims Act (31 U.S.C. §3730(h)). Highmark and Gateway filed a motion to dismiss, which was denied. Discovery revealed, however, that between the time that the investigator learned of the potential violations and the time he was terminated, he was being investigated for harassing a coworker. According to the coworker’s complaint, he belittled her weight. The employer’s investigation found information supporting the allegation, and it opted to terminate him. The employer then filed a motion for summary judgment.

Retaliation. Retaliation claims are subject to a burden-shifting analysis. The initial burden is on the investigator to establish prima facie retaliation. If so, the burden then shifts to the employer to establish a legitimate, non-retaliatory justification for the termination. If so, the burden then shifts back to the investigator to establish that the non-retaliatory justification was a mere pretext for retaliation. The court assumed that the investigator had established his prima facie case of retaliation and that the employer had established that workplace harassment was a legitimate, non-retaliatory justification for the termination. The success or failure of the summary judgment motion, therefore, came down to whether the investigator could establish a genuine issue that the workplace harassment investigation was a pretext for terminating him as retaliation for his fraud investigation.

Pretext. The court ultimately concluded that the investigator failed to establish any genuine issue that the harassment charge was a pretext for firing him as retaliation for his investigations. The court cited three factors as particularly important: (1) the two Highmark supervisors who made the termination decision did so after an independent investigation that included two witnesses who supported the coworker’s allegations, (2) the two Highmark supervisors were the only decisionmakers involved in the termination, and (3) neither the two supervisors nor the two witnesses had any knowledge of the False Claims Act matters. Thus, no causal connection existed between the False Claim Act complaints and the termination. In the absence of any such causal connection, the investigator could not prove pretext and could not survive summary judgment.

In cases where a pretext has been found, the facts were different from the facts here. For example, the investigation in those cases was found to be a sham to cover the real reason for the termination. Or the same supervisor was found to have been involved in both decisions. None of those conditions were present. The two issues were entirely separate, the harassment investigation was real, and the termination decision for workplace harassment was legitimate. No genuine issue existed on whether it was a pretext.

The court, therefore, granted summary judgment to the employer and dismissed the case.

The case is No. 19-1235.

Attorneys: Bryan R. Lentz (Bochetto & Lentz PC) for Alastair Crosbie. Mark J. Passero (Reed Smith LLP) for Highmark, Inc. and Highmark Health Options.

Companies: Highmark, Inc.; Highmark Health Options

Cases: CaseDecisions FCANews FraudNews PennsylvaniaNews