El-Khalil, DPM v. Tedeschi
2:18-cv-12759-MAG-APP
E.D. Mich.Jan 14, 2021Background
- Ali El-Khalil, a podiatrist with DMC privileges since 2008, began cooperating with federal authorities about suspected billing fraud by several physicians (including Khalil, Usen, Zamlut) beginning in late 2016 and had known interpersonal conflicts with some of them.
- El-Khalil’s reappointment application process: 2016 reappointment expired Dec. 2, 2017; DMC says his credentials lapsed that date after case logs were late (logs sent Oct. 12, 2017).
- Departmental review proceeded in late 2017–early 2018: the podiatry department recommended against reappointment; credentials committee recommended denial (Mar. 5, 2018); MEC unanimously recommended denial (Mar. 19, 2018); a fair hearing later found the MEC decision unsupported and recommended reappointment, but the Governing Body denied reappointment in 2019 and on appeal in 2020.
- On Jan. 8, 2018, El-Khalil’s counsel notified DMC that privileging decisions might be motivated by retaliation for his whistleblowing; DMC does not contest knowledge as of that letter.
- Procedural posture: DMC moved for summary judgment on El-Khalil’s FCA § 3730(h) retaliation claim. The Court granted summary judgment for DMC (FCA claim), dismissed the remaining state-law claims without prejudice, and denied related motions without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether El-Khalil established a prima facie FCA retaliation claim | El-Khalil engaged in protected activity and was retaliated against by DMC’s failure to renew/suspension of privileges | DMC argues no adverse employment action within the complaint’s timeframe and no evidence of causation | Court: No prima facie case; summary judgment for DMC |
| Whether the MEC’s March 2018 recommendation is an adverse employment action | MEC recommendation to deny reappointment is an adverse action that harmed El‑Khalil | MEC recommendation was advisory, subject to further review and hearing, and caused no tangible harm | Court: MEC recommendation is not a qualifying adverse action for § 3730(h) |
| Whether post-complaint Governing Body denials (2019–2020) can supply the adverse action element | Those later denials are adverse and show retaliation (would amend/supplement complaint) | Events occurred after the operative complaint and cannot be used absent a formal supplemental/amendment motion | Court: Post‑complaint events not considered; plaintiff failed to move to supplement or amend, so they are excluded |
| Whether alleged involvement of conflicted doctors and the fair‑hearing findings show causation/pretext | Usen/Zamlut influenced the process; fair‑hearing report showing MEC decision was unsupported proves retaliatory motive/pretext | No evidence Usen meaningfully participated after being excluded; Zamlut was disqualified; fair‑hearing criticism of process does not establish retaliatory animus | Court: Plaintiff produced no evidence of causation or meaningful conflicted participation; fair‑hearing findings do not prove retaliation |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (standards for genuine issue of material fact on summary judgment)
- Scott v. Harris, 550 U.S. 372 (courts view facts in light most favorable to nonmovant only if a genuine dispute exists)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (nonmovant must show more than metaphysical doubt to defeat summary judgment)
- Celotex Corp. v. Catrett, 477 U.S. 317 (burden-shifting framework on summary judgment motions)
- Scott v. Metro. Health Corp., 234 F. App’x 341 (6th Cir.) (McDonnell–Douglas framework applies to FCA retaliation claims)
- McPherson v. Kelsey, 125 F.3d 989 (6th Cir. 1997) (perfunctory or undeveloped arguments are waived)
- Babcock & Wilcox Co. v. Cormetech, Inc., 848 F.3d 754 (6th Cir. 2017) (insufficient to rely on a mere scintilla of evidence to avoid summary judgment)
- Desparois v. Perrysburg Exempted Vill. Sch. Dist., 455 F. App’x 659 (6th Cir. 2012) (party should file a formal motion to amend/supplement rather than attempt amendment via summary judgment response)
- Gohl v. Livonia Pub. Sch., 134 F. Supp. 3d 1066 (E.D. Mich. 2015) (district court may dismiss supplemental state-law claims without prejudice after federal claims are dismissed)