945 F.3d 1355
11th Cir.2020Background:
- Nesbitt, an EMT for Candler County, objected to instructions from deputy director Greer to falsify ambulance trip-report narratives to increase Medicare payments.
- After complaining, Nesbitt’s schedule was reduced (loss of on-call overtime) and he began working a side job without clear director approval; County later fired him citing the unauthorized side job and improper trip reports.
- Nesbitt sued under the False Claims Act (FCA) and Georgia False Medicaid Claims Act; the United States intervened and resolved the fraud claims but Nesbitt’s FCA retaliation claim proceeded.
- The district court granted summary judgment for the County, concluding Nesbitt engaged in protected conduct but failed to show he was fired “because of” that conduct.
- On appeal, the central question was the causation standard for FCA § 3730(h)(1) retaliation claims: whether “because of” requires but-for causation or only that protected conduct was a motivating factor.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper causation standard under FCA § 3730(h)(1) | “Because of” allows motivating-factor causation (lesser burden). | “Because of” requires but-for causation. | Court holds but-for causation applies (affirming district court). |
| Effect of Nesbitt’s concession at oral argument that he loses under but-for | Concession limited to facts; should not bind statutory interpretation. | Concession means plaintiff cannot prevail under but-for. | Court accepts concession as to outcome under but-for but declines to treat it as concession on the legal standard. |
| Use of legislative history (Senate report) to supply a motivating-factor standard | Legislative history supports motivating-factor standard. | Plain statutory text controls; legislative history cannot override clear text. | Court rejects reliance on legislative history and follows text and Supreme Court precedents. |
| Appropriateness of summary judgment | Nesbitt: genuine dispute exists that protected conduct motivated firing. | County: record lacks evidence that protected conduct was the but-for cause. | Summary judgment affirmed because Nesbitt failed to show but-for causation. |
Key Cases Cited
- Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (interpreting “because of” in ADEA to require but-for causation)
- Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (Title VII retaliation requires but-for causation; applies Gross reasoning)
- DiFiore v. CSL Behring, LLC, 879 F.3d 71 (3d Cir. 2018) (applied but-for standard to FCA retaliation claims)
- United States ex rel. King v. Solvay Pharm., Inc., 871 F.3d 318 (5th Cir. 2017) (same)
- McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508 (6th Cir. 2000) (adopted motivating-factor standard based on legislative history)
- Yesudian v. Howard Univ., 153 F.3d 731 (D.C. Cir. 1998) (adopted motivating-factor standard for FCA retaliation)
- Steele v. United States, 147 F.3d 1316 (11th Cir. 1998) (textualist construction principle cited)
- Ratzlaf v. United States, 510 U.S. 135 (1994) (warns against using legislative history to cloud clear statutory text)