Jones-McNamara v. Holzer Health Systems

630 F. App'x 394
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 2, 2015
DocketNo. 15-3070
StatusPublished
Cited by45 cases

This text of 630 F. App'x 394 (Jones-McNamara v. Holzer Health Systems) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones-McNamara v. Holzer Health Systems, 630 F. App'x 394 (6th Cir. 2015).

Opinions

SUHRHEINRICH, Circuit Judge.

Plaintiff-Appellant Sara Jane Jones-McNamara (“McNamara”) appeals the district court’s order granting summary judgment to Defendant-Appellee Holzer Health Systems, Inc. (“Holzer”) in her ac[395]*395tion alleging that Holzer terminated her in violation of the False Claims Act (“FCA”)’s anti-retaliation provision, 31 U.S.C. § 3730(h). We affirm, but for reasons different than those articulated by the district court.

I. BACKGROUND

A. Facts

Holzer is a health care delivery system comprised of several hospitals and care facilities in southeastern Ohio. ID # 3329-3331. McNamara began work for Holzer as Vice President for Corporate Compliance on March 1, 2010. ID # 79. Shortly after starting work, McNamara began investigating allegations that Holzer’s dealings with a patient transport company called Life Ambulance (“Life”) violated the Anti-Kickback Statute (“AKS”), 42 U.S.C. § 1320a-7b. Holzer and Life had a preferred supplier agreement under which Life promised to make its best efforts to be available upon Holzer’s request. ID #859. This agreement, however, is not what sparked McNamara’s concerns about potential AKS violations; in fact, McNamara assumed the contract was legal. ID # 861-62. McNamara’s concerns arose when she received a phone call on May 8 and an e-mail on May 11 from Tina Baker, a Holzer Emergency Room nurse, alleging that “certain hospital ER doctors” received embroidered jackets from Life. ID # 875-77, 4894, 5084. McNamara ultimately confirmed the receipt of only one such jacket, which she later valued at $23.50. ID #879-80, 2358. Baker also claimed that Holzer employees consistently called Life over its competitor MedFlight for ambulance services despite the fact that Life was “more than double the distance and time” from Holzer compared to MedFlight. ID #875-76, 4894. On May 10, after speaking to Baker on the phone but before receiving her e-mail, McNamara e-mailed James Phillippe, the President of one of Holzer’s hospitals, to inform him of an “[allegation of [a] potential kickback issue in [the] ER.” ID # 4899.

On May 13, McNamara learned from Holzer’s Director of Community and Wellness, Bonnie MacFarlane, that Life had provided free hotdogs and hamburgers at Holzer’s employee health and wellness fairs in 2008 and 2009, ID #888, 4888, 4890, 4903 (under seal), 5085. McNamara further discovered on May 18 that Life similarly would supply free hotdogs at Holzer’s upcoming health and wellness fair the following day. ID #865, 4889, 4903 (under seal), 5086. Despite McNamara’s objection that this event violated the AKS, she allowed the event to proceed. ID # 865.

Based on this collection of facts — Baker’s unverified allegation that Life was receiving preferential referrals, one doctor’s receipt of a $23.50 jacket, and Life’s provision of hotdogs at past wellness fairs and the upcoming wellness fair — McNamara sent the following May 18 e-mail to CEO Brent Saunders and Vice President of Human Resources Lisa Halley: “We definitely do have an anti-kickback issue with Life and after Wed [the 2010 health and wellness fair] I will not ever ok their donating, [sic], sponsoring or equipping, etc. anything at Holzer again.” ID # 4904. McNamara explained in the e-mail that she would allow the upcoming wellness fair to proceed because “I decided I should have a solid case before I start banning things.” Id. After sending this e-mail, McNamara met in person with Saunders, who instructed McNamara not to reduce her conclusions to writing before completing her investigation. ID # 892, 2617-18, 4934.

The following day, McNamara verbally reiterated to Saunders her concern that Holzer had violated the AKS and needed [396]*396to pay back the federal government. ID # 900. Following the meeting with Saunders, McNamara sent an e-mail to Saunders, Phillippe, and Halley providing an update on her investigation and proclaiming “[a]nti-kickback violations (we have one of them) are illegal.” Id. Saunders repeated his verbal directive to McNamara not to put conclusions of illegal activity in writing before completing her investigation.1 ID # 906-07, 4934.

McNamara never clarified for what items or services she believed Holzer needed to reimburse the government. At one point, McNamara testified she told Saunders that Holzer needed to pay back the government “for all these hot dogs, hamburgers, coats, jackets, and stuff.” ID # 1219 (sealed).2 But McNamara also testified that during her investigation she thought Holzer might have billed Medicare for Life’s ambulance services, in which case Holzer would need to return the government’s payment for any services tainted by kickbacks. ID # 90-102. McNamara later contradicted her own testimony, however, when she stated that Life, not Holzer, billed for ambulance services. ID # 1219 (sealed).

Sometime thereafter, McNamara determined based on records of patient transports that out of the 102 patient transports Holzer referred to an ambulance company between January and April 2010, Holzer referred 93 to Life. Appellant Br. 10; ID #4892, 4893. McNamara testified that she completed her investigation into the anti-kickback violations upon reporting these statistics to Saunders. ID # 864, 1005.

On June 30, 2010, Saunders and Halley terminated McNamara’s employment. ID # 3204.

B. Procedural History

McNamara’s amended complaint alleges she was terminated in retaliation for her investigation of Holzer’s FCA violations as prohibited by 31 U.S.C. § 3730(h) and raises five additional state law claims related to her termination. ID # 68-72. The district court granted Holzer’s motion for summary judgment on McNamara’s FCA retaliation claim and declined to exercise supplemental jurisdiction over McNamara’s remaining state law claims. ID # 5488-89.

The district court’s opinion rests on two primary grounds: lack of direct evidence of retaliation, and McNamara’s inability to prove that Holzer’s stated reasons for her termination are pretext. In its ruling, the district court assumed McNamara could establish the first two elements of her retaliatory discharge claim: 1) protected activity, and 2) Holzer’s knowledge that McNamara engaged in protected activity. ID # 5477. The district court instead focused on the third element of McNamara’s claim, causation, i.e. that Holzer terminated her because of her protected activity. Id. The district court rejected McNamara’s “direct” evidence because it demanded inferences to find that Holzer acted out of impermissible retaliation. ID # 5478-82. The district court then considered whether, viewing McNamara’s evidence as circumstantial, it satisfied the burden-shifting framework of McDonnell [397]*397Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). For this purpose, the district court assumed that McNamara established all three elements of her prima facie case and allowed the burden of production to shift to Holzer to present a legitimate, non-retaliatory reason for McNamara’s discharge. ID # 5482.

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