By Rebecca Mayo, J.D.
A circuit court held that the phrase "because of" in the False Claims Act antiretaliation provision requires a but-for standard of causation.
The legislative history of a statute should not be referred to or relied on to undermine the plain meaning of statutory language when the import of the words Congress used is clear. While the legislative history may allow for a different interpretation, the court found that the plain language of the statute was clear and had already been interpreted by the Supreme Court in other cases. Therefore, it was unnecessary to psychoanalyze Congress to determine the intent of the statute when it could instead rely on the Supreme Court’s interpretation of the key language (Nesbitt v. Candler County, Georgia, January 3, 2020, Carnes, E.).
Termination. Part of an emergency medical technician’s (EMT’s) job is to complete a "trip report" after each ambulance ride to document the condition of the patient and the medical necessity of the ambulance services. Medicare relies on trip reports when deciding whether to pay for the service. And EMT who worked for a county ambulance service in Georgia, claimed that the deputy director of the ambulance service pressured the EMTs to write in their report narratives that patients were unable to walk, even if they could, to get Medicare to pay for more trips. The EMT believed that the deputy director was asking him to commit fraud and he complained to the deputy director and other County officials.
After the EMT complained, the deputy director modified the EMT’s schedule to reduce his opportunity for overtime pay to be less than the other EMTs. The county had a policy prohibiting EMTs from working side jobs without the approval of the ambulance service director, so the EMT asked the deputy director permission to work at a private ambulance company on the side. The deputy director approved the request and the EMT assumed the ambulance service director was aware of the request as well, so he began working for the private ambulance company on the side.
The deputy director and the ambulance service director then went to the Board of Commissioners to recommend termination of the EMT for failure to follow orders and for violating the County’s policy on side jobs. The Board voted to terminate the EMT’s employment and he was notified that he had been fired for his unauthorized job with the private ambulance company and his refusal to fill out trip reports in the "proper way."
FCA suit. The EMT filed a False Claims Act (FCA) claim alleging that the County had engaged in a fraudulent scheme related to billing for ambulance services and had fired him in retaliation for his whistleblowing. The government intervened and reached a settlement agreement as to the fraud claims but allowed the retaliation claim to move forward. The court then granted summary judgment for the County, finding that the EMT had engaged in protected conduct but had not created a genuine issue of material fact that he had been fired because of that conduct. The EMT appealed.
Decision. According to the court, the result of the case depended on the standard of causation that applied to retaliation claims under the FCA. The EMT asked the court to apply a "motivating factor" standard, which requires a showing that the protected conduct was a motivating factor for any employment decision, even though other factors also motivated the decision. The court noted that other circuits have applied the motivating factor standard based on legislative history. However, the court here found that it was inappropriate to use legislative history to get around the plain meaning of the statute’s text.
The circuit court relied instead on a pair of Supreme Court decisions that found that the but-for causation standard applied to claims under the antiretaliation provisions of Title VII and the antidiscrimination provision of the Age Discrimination in Employment Act of 1967. The circuit court noted that the key "because of" and "because" language was identical or materially identical in all three statutes and therefore the analytical result must be identical as well, given the circuit court’s duty as an inferior court to follow Supreme Court decisions. The but-for standard requires a showing that the harm would not have occurred in the absence of, that is, "but for" the protected conduct, which the EMT was unable to show.
The case is No. 18-14484.
Attorneys: Anthony C. Lake (Gillen Withers & Lake, LLC) for Jamie Nesbitt. Kenneth Duncan Crowder (Crowder Stewart, LLP) for Candler County, Georgia, d/b/a Candler County Ambulance Service.
Companies: Candler County, Georgia, d/b/a Candler County Ambulance Service
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