171 F. Supp. 3d 383
E.D. Pa.2016Background
- DiFiore, Director of Marketing at CSL Behring, raised internal concerns (2008–2012) about forecasts and potential off‑label promotion of RiaSTAP and Beriplex and reported adverse‑event underreporting in a clinical trial.
- CSL investigated, provided compliance training, and met with DiFiore; she continued to press concerns and was relieved of forecasting duties at her request.
- After promotion to Director, DiFiore experienced strained relations with supervisors, received warning letters (Jan. and Feb. 2012), a negative mid‑year review, and was placed on a Performance Improvement Plan (PIP) in May 2012.
- CSL paid for an executive coach for DiFiore and extended coaching during the PIP; DiFiore resigned on May 14, 2012 and later sued for wrongful discharge (state law) and FCA retaliation (31 U.S.C. § 3730(h)).
- At summary judgment, the court evaluated whether DiFiore was constructively discharged and whether CSL’s actions constituted an adverse employment action under the FCA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive discharge (state wrongful discharge) | DiFiore contends PIP, warnings, ostracism, and increased scrutiny made working conditions intolerable and forced her to resign. | CSL argues no objective intolerability: no pay/title cut, substantial remediation (coach), and PIP alone doesn’t compel resignation. | Court: No constructive discharge as a matter of law; grant summary judgment for CSL on wrongful discharge. |
| Public‑policy violation (refusal to commit crime / illegal acts) | DiFiore claims she refused to participate in illegal off‑label marketing, investor/FDA fraud implicating Pa. public policy. | CSL contends DiFiore offers only subjective belief, no concrete unlawful directives or statutory subsection identified. | Court: DiFiore failed to show a statutory or clear‑law public‑policy basis; skepticism of this claim and insufficient proof. |
| FCA retaliation — protected conduct and knowledge | DiFiore engaged in protected internal reporting and CSL knew about it. | CSL does not dispute protected conduct or knowledge. | Court: Undisputed that conduct was protected and known. |
| FCA retaliation — adverse action & causation | DiFiore argues warnings, negative review, PIP, and aggregate treatment were adverse and causally linked to reporting. | CSL contends each action was non‑material (e.g., counseling, PIP, warnings) and not actionable alone. | Court: Individually actions not adverse, but cumulatively could dissuade a reasonable worker; genuine fact issues on causation — deny summary judgment on FCA claim. |
Key Cases Cited
- Weaver v. Harpster, 975 A.2d 555 (Pa. 2009) (explains public‑policy exception to at‑will employment)
- Clowes v. Allegheny Valley Hosp., 991 F.2d 1159 (3d Cir. 1993) (close supervision and PIP insufficient alone to prove constructive discharge)
- Kroen v. Bedway Sec. Agency, Inc., 633 A.2d 628 (Pa. Super. Ct. 1993) (use PLRB/PA standard for constructive discharge — intolerable working conditions)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (adverse action defined as conduct that would dissuade reasonable worker from engaging in protected activity)
- Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. 2006) (totality of circumstances: cumulative disciplinary acts may be actionable retaliation)
- Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3d Cir. 2003) (private‑employer whistleblower claims limited when employee had no statutory duty to report)