U.S. District Court Holds that FCA’s Retaliation Provision Requires “But-for” Causation

[caption id="attachment_2360" align="alignright" width="206"] Nathaniel M. Glasser and Daniel C. Fundakowski[/caption]

Last month, in United States ex rel. Helfer v. Associated Anesthesiologists of Springfield, Ltd., No. 3:10-cv-03076 (N.D. Ill. Jan. 14, 2016), the U.S. District Court for the Central District of Illinois held that the retaliation provision of the False Claims Act (“FCA”) requires a whistleblower to show that protected activity was the “but-for” cause of the alleged adverse action.

The FCA’s retaliation provision entitles an employee to relief if he is “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against . . . because of lawful acts done . . . in furtherance of an action” under the FCA.  31 U.S.C. § 3730(h).

In Helfer, the relator alleged he was discharged for contacting Medicare to report concerns regarding the way Associated Anesthesiologists billed for labor epidurals.  The company denied the accusations, contending the relator was discharged for a combination of other things, including unauthorized contacts with third parties regarding the company’s business practices.

The company moved for summary judgment, arguing “but-for” causation, rather than “mixed motive,” is the proper standard for evaluating an FCA retaliation claim.  Largely relying on the Supreme Court’s interpretation of a similar Title VII retaliation provision in University of Texas Southwestern Medical Center v. Nassar,  the court held that “because the FCA retaliation provision uses ‘because of’ and not language specific to a standard of causation, the statute requires that Dr. Helfer shows that his protected conduct was a ‘but-for’ cause of his termination.”  Despite the court’s favorable ruling with respect to the FCA retaliation standard, the court nevertheless denied the motion for summary judgment, finding a genuine issue of material fact as to the reason for the relator’s discharge.

This case represents another in what has become an emerging trend of post-Nassar decisions rejecting the “mixed motive” analysis in favor of a requirement of “but-for” causation to sustain a cause of action under the FCA’s § 3730(h) retaliation provision.  This heightened analysis should assist employers in dismissing more frivolous lawsuits at early stages of the litigation, and make it easier for employers to demonstrate that the relator would have been subject to an adverse action regardless of the FCA-protected conduct.