Health Law Daily Pharmacist’s retaliation claim lives another day, factual issues defeat summary judgment (1)
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Friday, March 30, 2018

Pharmacist’s retaliation claim lives another day, factual issues defeat summary judgment

By Victoria Moran, J.D., M.H.A.

A pharmacist may proceed with retaliation claims against his former employer after an Illinois federal district court dismissed the Ukrainian Village Pharmacy’s (UVP), motion for summary judgment. In its opinion, the court concluded that discrepancies between the pharmacist’s deposition testimony and denials by the pharmacy create factual issues, which cannot be resolved on summary judgment (U.S. ex rel. Grenadyor v. Ukrainian Village Pharmacy, Inc., March 29, 2018, Leinenweber, H.).

Background. The pharmacist began working for UKP in 2006; two years later, he was approached by the UVP to see if he was interested in purchasing a 20-percent equity interest, and the pharmacy took steps to have him designated as the pharmacist-in-charge. According to one of the pharmacist’s former bosses, his performance deteriorated after he was offered the equity interest: he refused direct orders, neglected his duties, and was observed removing a USB drive from a computer containing patient information. Around this time, the pharmacist claimed to observe a pharmacy check written by his boss, which he believed showed that she was stealing from the pharmacy. The pharmacist wrote two emails to another boss and pharmacy owner, detailing his accusation; UVP fired him one month later 2008.

The pharmacist filed a qui tam action in alleging that UVP violated the federal Anti-Kickback Statute (42 U.S.C. sec. 1320a-7b(b)(2)(B)) and the federal False Claims Act (31 U.S.C. secs. 3729–3733). After multiple amended complaints, an Illinois federal district court dismissed the qui tam action with prejudice (see Strike three called in pharmacist attempt to plead qui tam action, November 8, 2013). On appeal, the Seventh Circuit upheld the dismissal of the qui tam action, but reversed the dismissal of the retaliation claims and remanded the case back to district court (see Ukrainian pharmacy caviar kickback claims sink under limited factual support, December 5, 2014). The Seventh Circuit concluded that the complaint, which alleged that the pharmacist was given reduced hours and later fired for telling superiors about the kickbacks and other wrongful acts, if true, would be sufficient for a retaliation claim. The UVP filed a motion for summary judgment on the retaliation claims in district court.

Decision. In its motion, the UVP argued that since the pharmacist raised many complaints about unfair treatment and his boss’s actions in emails, that if he truly believed the pharmacy was violating federal regulations then he would have also mentioned this. As the court pointed out, the pharmacist’s reason for not documenting the alleged violations via email is not "particularly clear" and "not very articulate," but he did give an explanation during his deposition. The pharmacist claimed that putting the Medicare and Medicaid violations "in the cyberworld" would have placed him in danger of being a party to the fraud, so he opted to give a verbal warning. UVP denied that any concerns related to alleged violations were brought to its attention.

The court denied UVP’s motion for summary judgment, holding that the discrepancy between the pharmacist’s deposition testimony (explaining why concerns of violations were not communicated via email), and UVP’s denial of being made aware of the alleged violations is a factual issue that cannot be resolved on summary judgment.

The case is No. 09 C 7891.

Attorneys: Barry A. Weprin (Milberg Weiss Bershad & Schulman LLP) for Yury Grenadyor. Aaron Clark (Kan Clark, LLP) for Ukrainian Village Pharmacy, Inc. Leigh D. Roadman (Clark Hill PLC) for MEI Services, Inc.

Companies: Ukrainian Village Pharmacy, Inc.; MEI Services, Inc.

MainStory: TopStory CaseDecisions AntikickbackNews FCANews FraudNews ProgramIntegrityNews QuiTamNews IllinoisNews

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