Labor & Employment Law Daily Wrap Up, WHISTLEBLOWERS—S.D. Ohio: Registered Nurse’s FCA retaliation claim dismissed for deficient notice to employer about FCA intentions, (Sep 2, 2025)

By Justin Marcus Smith, J.D.

The RN did not plausibly allege that his employer had reason to suspect he intended to bring an FCA claim or assist the government in an FCA action.

A putative whistleblower failed to perfect the second element of a False Claims Act (FCA) retaliation claim—employer knowledge of protected activity—held the federal district court in Cincinnati, Ohio. Accordingly, the court dismissed the retaliation claim in the amended complaint with prejudice for failure to state a claim. The court also dismissed a closely-related state law public policy claim without prejudice and declined to exercise supplemental jurisdiction over two other state law claims, likewise dismissing those without prejudice (Baier v. Community Home Health Care, Inc., No. 1:24-cv-00276-JPH (S.D. Ohio Aug. 22, 2025)).

Background. A registered nurse alleged that his employer defrauded government health care programs, including Medicare and Medicaid. The nurse said he witnessed his employer charge for registered nurse (RN) services not performed; employees impersonating an RN; and employees knowingly allowing others to use their name and credentials to document and write patient orders.

The nurse said the employer retaliated against him after he reported his suspicions to internal management, including two co-owners. He said the retaliation consisted of management permitting derogatory remarks about him and relocation of his workplace. The nurse said he then sent an email to the co-owners and management alerting them to the retaliation and his concerns about patient billing. This email also memorialized earlier meetings and communications.

He purportedly wrote a second email a day later reiterating the same issues about alleged false documentation and charging for services not rendered. This second email identified three individuals and asked for formal discipline, better computer security, better compliance, and freedom from retaliation. The nurse said he followed that up with a text message the same day warning he would escalate his concerns to the Community Health Accreditation Program, Ohio Board of Nursing, and the Equal Employment Opportunity Commission (EEOC).

The employer terminated the nurse the following week, and the nurse brought the instant action two months later. The nurse asserted claims of retaliation under the False Claims Act (FCA), 31 U.S.C. § 3170; common law wrongful termination in violation of the public policy espoused in the FCA; termination in violation of the Ohio Whistleblower Protection Act (OWPA), Ohio Rev. Code § 4113.52; and wrongful termination in violation of the public policy espoused in OWPA. The employer moved to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

No knowledge. The court held the FCA retaliation claim failed because the nurse did not plausibly allege the second element of an FCA retaliation claim: he did not allege that his employer knew or had reason to suspect that he engaged in protected activity.

The court reviewed how amendment of the FCA in 2009 expanded protected activity beyond that undertaken in furtherance of a qui tam action to include other efforts to stop FCA violations. Some Sixth Circuit courts have correspondingly loosened the notice requirement that an employee notify an employer of intent to bring or assist in an FCA action. However, the court conversely noted that the Sixth Circuit decision in United States v. Wal-Mart Stores E., LP, 858 F. App'x 876 (6th Cir. 2021) (Wal-Mart) appeared to “mandate that district courts apply a pre-amendment notice standard.” In Wal-Mart, the Sixth Circuit affirmed dismissal of an FCA retaliation claim where there were only internal reports of suspected fraud. The Sixth Circuit elaborated that employees must clearly communicate their intentions of “bringing or assisting in an FCA action” in order to show retaliation. The instant court perceived a “convoluted” history here. According to the court, the Sixth Circuit was not as strict about explicit notice before the 2009 FCA amendments: “Importantly, even under the pre-amendment statutory scheme, the Sixth Circuit did not require that an employee explicitly inform their employer that they were cooperating with the government or planning to file a qui tam action.” See, e.g., U.S. ex rel. Marlar v. BWXT Y-12, L.L.C., 525 F.3d 439, 449—50 (6th Cir. 2008).

Turning to the alleged facts and facial evidence, the court noted that several of the concerns the nurse communicated to management did not perfect protected activity because he did not necessarily tie them to fraud on the government. These included the reports of false documentation, impersonating an RN, and misuse of credentials to document and write orders for patients. None of these allegations alleged fraud on the government.

That left only the allegation of charges for services not rendered by an RN. The nurse alleged that he conducted a “limited investigation” and “identified” certain individuals who charged for services not rendered. The nurse “connected” his investigation to a concern about fraud on the government. The investigation was “limited,” but the court recognized the nurse may have engaged in protected activity even if the investigation target was actually innocent. In any event, the court held that was enough to qualify as protected activity under the lenient “reasonable belief” standard applicable at the dismissal stage.

However, the nurse failed to establish the employer’s knowledge or reason to suspect he was engaged in protected activity. In other words, he did not make a facial claim that the employer knew he was pursuing an FCA action. The court found the notice the nurse provided to the employer did not explicitly characterize his concerns as involving false claims against the government. It was not explicit enough to charge the employer with at least a suspicion that the nurse was contemplating a qui tam action or was assisting the government in an FCA investigation, even though the nurse threatened to report the criminal activity to outside agencies. The court held that deficiency doomed the retaliation claim under Wal-Mart.

More specifically, the court found, among other things, that the first email to management was a “meandering narrative and laundry list” of ordinary workplace grievances that never touched on fraud against the government. Averments that the nurse met with certain employer personnel and orally informed them about “fraudulent activities” witnessed were undercut by the nurse’s own recollection of the meetings as memorialized in the first email, which, again, did not mention “fraudulent activities” or the “government.”

The second email suffered from many of the same deficiencies, and it facially lacked common email features and characteristics. However, even assuming it was an email, the court found it did not facially impute adequate employer knowledge or reason to suspect the nurse was engaged in protected activity because it lacked dates associated with alleged fraud or amounts billed. There was no indication of a sustained and pervasive pattern of fraudulent billing or what sort of investigation the nurse conducted. This email identified three individuals, but the court said it was unclear whether the nurse accused them of defrauding the government, providing false documentation, impersonating an RN, or permitting misuse of credentials on patient orders. The transitory reference to criminality could not be plausibly read to suggest an intention to launch a qui tam action or to assist the government in an FCA investigation. The court cited at least five cases in support of its conclusion here.

Other claims. The court dismissed the wrongful termination in violation of public policy claim, which was a state law claim, primarily because it hinged on the failed statutory FCA claim for retaliation. The court also declined to exercise supplemental jurisdiction over the OWPA and wrongful termination in violation of public policy under OWPA state law claims. The dismissals of these three state law claims were without prejudice.

The case is No. 1:24-cv-00276-JPH.

Judge: Hopkins, J.

Attorneys: Stephen E. Imm (Finney Law Firm LLC) for Brian Baier. Patrick M. Quinn (Brunner Quinn) for Community Home Health Care, Inc.

Companies: Community Home Health Care, Inc.

Cases: Whistleblowers Procedure Retaliation OhioNews