iA recent decision in Mikhaeil v. Walgreens Inc., a False Claims Act retaliation case, establishes helpful precedent on the broad scope of False Claims Act protected conduct.
Mikhaeil had worked as a staff pharmacist at Walgreens in July 2012 and alleged that her employment was terminated for raising concerns about potential Medicare fraud. Walgreens moved for summary judgment, and in opinion denying the motion in part, Judge Edmunds held that the False Claims Act protects lawful acts taken in furtherance of an action under the FCA, and also protects “employees from being fired for undertaking other efforts to stop violations of the Act, such as reporting suspected misconduct to internal supervisors.” Mikhaeil testified that she told her supervisor the relevant prescription numbers that she was concerned about, and therefore her disclosure about potential Medicare fraud was sufficiently specific to constitute an internal report alleging fraud on the government.
Judge Emunds also rejected Walgreen’s “duty speech” argument, i.e., Walgreen’s contention that Mikhaeil’s internal disclosure failed to provide notice of a potential FCA claim because her job duties already required her to alert the company to potential false-claims liability:
As stated previously, the FCA no longer requires that conduct be “in furtherance of an action under this section” to be protected. Rather, the FCA protects any “effort to stop 1 or more violations of this subsection.” 31 U.S.C. 3730(h)(1). This includes internal reporting to supervisors “whether or not such steps are clearly in furtherance of a potential or actual qui tam action.” 155 Cong Rec. E1295-03, at E1300. If an employee does not need to take steps clearly in furtherance of a potential or actual qui tam action to engage in protected activity, the employee, even if charged with investigating potential fraud, also does not need to “make clear their intentions of bringing or assisting in an FCA action,” Yuhasz, 341 F.3d at 568, to satisfy the notice requirement. See Jones-McNamara v. Holzer Health Sys., Inc., No. 13-616, 2014 WL 1671495, at *4 (S.D. Ohio Apr. 28, 2014) (“What does not remain correct in regard to the May 2009 version of the statutory scheme is Yuhasz‘s requirement that the employer knew that the employee was doing more than her job by bringing or furthering an FCA case.”); Manfield v. Alutiiq Int’l Solutions, Inc., 851 F. Supp. 2d 196, 204 (D. Me. 2012) (“Since a plaintiff now engages in protected conduct whenever he engages in an effort to stop an FCA violation, the act of internal reporting itself suffices as both the effort to stop the FCA violation and the notice to the employer that the employee is engaging in protected activity.”). By reporting her concerns directly to Yadmark, Plaintiff satisfied the notice element of her prima facie case.
