Potts v. Ctr. for Excellence in Higher Educ., Inc.
908 F.3d 610
| 10th Cir. | 2018Background
- Debbi Potts worked as campus director for CollegeAmerica (Center predecessor) from Jan 2009 to Jul 2012 and resigned alleging unethical practices and accreditation fraud.
- In Sept 2012 Potts and CollegeAmerica executed a separation agreement restricting her from contacting government/regulatory agencies and prohibiting disparagement; CollegeAmerica paid Potts $7,000.
- Potts later emailed a former employee and, in Feb 2013, filed a complaint with the accreditor (ACCSC) alleging the Center misled its accreditor to retain federal student-aid eligibility.
- The Center sued Potts in Colorado state court for breach of the separation agreement and amended its complaint to allege she breached by filing the ACCSC complaint.
- Potts sued in federal court under the False Claims Act (31 U.S.C. § 3730(h)) alleging the state-court suit was retaliatory. The district court dismissed under Rule 12(b)(6), holding § 3730(h) does not cover retaliation occurring only after employment ends. Potts appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3730(h)(1)'s protection for “any employee” covers persons whose protected whistleblowing and ensuing retaliation occurred only after employment ended | Potts: statute ambiguous; similar statutes and DOL regs cover former employees and Robinson (Title VII) supports including former employees | Center: statutory text lists employment-terminology acts (discharge, demote, suspend, terms and conditions) showing a temporal limitation to current employees | Court: "employee" unambiguously limited to persons who were current employees when retaliated against; dismissal affirmed |
| Whether terms “threatened” and “harassed” could plausibly apply to former employees while other listed acts cannot | Potts: employer can harass/threaten former employees so ambiguity exists | Center: associated-words and ejusdem generis canons require similar temporal scope across listed acts | Court: applied associated-words and ejusdem generis; these terms share the same employment-temporal scope as other listed acts |
| Scope of residual phrase “in the terms and conditions of employment” — does it modify whole list or only the catchall? | Potts: last-antecedent or narrower reading might limit modifier to catchall only | Center: series-qualifier canon and parallelism support applying employment modifier to all listed acts | Court: modifier most sensibly read to limit discrimination to terms/conditions of employment; though some canons ambiguous, statutory structure and remedies confirm employment focus |
| Whether Robinson v. Shell Oil compels reading § 3730(h) to cover post-employment retaliation | Potts: Robinson interpreted Title VII to include former employees, so similar anti-retaliation language should be read likewise | Center: § 3730(h) differs materially — it lists employment-specific retaliatory acts and remedies tied to employment | Court: Robinson distinguishable; § 3730(h) contains an express temporal limitation absent in Title VII; Robinson does not control |
Key Cases Cited
- Lawson v. FMR LLC, 571 U.S. 429 (statutory-interpretation framework)
- Robinson v. Shell Oil Co., 519 U.S. 337 (interpreting whether "employee" includes former employees under Title VII)
- United States ex rel. Little v. Triumph Gear Sys., Inc., 870 F.3d 1242 (10th Cir.) (de novo review of statutory construction)
- McBride v. Peak Wellness Ctr., Inc., 688 F.3d 698 (10th Cir.) (purpose of FCA whistleblower protection)
- United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702 (10th Cir.) (statutory-intent and interpretation principles)
- United States ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163 (10th Cir.) (standard of review for Rule 12(b)(6))