ORDER
This matter is before the Court on the Defendants’ Motions for Summary Judg
I. OVERVIEW AND PROCEDURAL HISTORY
On March 2, 2007, Plaintiff Angela Para-to filed a qui tam complaint (Doc. 3) against Defendant Unadilla Health Care Center, Inc. (“UnaHealth”) and members of its governing body. Pursuant to 31 U.S.C. § 3730(b)(2), the Complaint was placed under seal to allow the United States an opportunity to investigate the matter and decide whether to pursue Para-to’s allegations. After counsel for the United States filed a Notice of Election to Decline Intervention (Doc. 14), the Complaint was unsealed, and Parato proceeded on her own as a relator.
On September 18, 2009, Parato filed her first Amended Complaint (Doc. 37) against all Defendants, in which she alleged the Defendants were liable for federal grant fraud, Medicare/Medicaid fraud, retaliatory conduct in violation of the False Claims Act (“FCA”), and breach of contract. The Defendants timely filed Motions to Dismiss (Docs. 39 & 41), which this Court, Judge Lawson presiding, granted, in part, and denied, in part. Parato’s Medicare/Medicaid fraud claim was not pled with sufficient particularity and was, therefore, dismissed, while her remaining claims were sufficiently pled to avoid dismissal (See Doc. 51). Discovery has expired, and the Defendants’ Motions for Summary Judgment are now ripe for review.
II. FACTUAL BACKGROUND 1
On November 7, 2002, UnaHealth was formed as a Georgia non-profit corporation with the goal of becoming a Federally Qualified Health Center and receiving a public health service grant under Section 330 of the Public Health Service Act (“Section 330”), as codified at 42 U.S.C. § 254b. Defendants James Ray Irwin, Bob Lemmon, Charlotte Vestal, Leroy Shewman, Greg Speight, E.K. Chaney, Ronney Led-ford, Betty Ward, Margaret Whitehead, Sherry Evans, and Barbara Gaston were members of UnaHealth’s Board of Directors (the “Board”) during the time period in question.
On December 1, 2004, UnaHealth received a $650,000.00 Section 330 grant from the Department of Health and Human Services (“HHS”). Section 330 authorizes federal grant funding opportunities for organizations to provide care to underserved populations. The grant was issued pursuant to an application submitted by UnaHealth on November 25, 2003.
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As part of the application, Defendant Irwin, as UnaHealth’s authorized represen
In addition to the assurances included in the November 2003 application, by accepting the Section 330 grant from HHS, UnaHealth agreed to operate the center pursuant to the terms and conditions included in the HHS Notice of Grant Award (Doc. 73-8). Among the terms and conditions included in the HHS Notice of Grant Award is the following: “THIS AWARD IS ... SUBJECT TO THE TERMS AND CONDITIONS INCORPORATED EITHER DIRECTLY OR BY REFERENCE IN THE FOLLOWING ... d. 45 C.F.R. Part 74 or 45 C.F.R. Part 92 as applicable.” Parato relies on the “Posb-Award Requirements” found in the incorporated regulations, specifically, 45 C.F.R. § 74.42, which provides
[n]o employee, officer, or agent shall participate in the selection, award, or administration of a contract supported by Federal funds if a real or apparent conflict of interest would be involved. Such a conflict would arise when the employee, officer, or agent ... or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in the firm selected for an award.
On December 14, 2004, after receiving the Section 330 grant funds but before commencing operation, UnaHealth obtained a price quote from Companion Technologies Corporation, a medical software company, for computer equipment necessary to the proper functioning of the health center. Shortly thereafter, on December 16, 2004, the UnaHealth Board hired Defendant Dr. Bruce Whyte to serve as “interim CEO” on an as-needed basis until a full-time CEO was hired. As we will see, Parato alleges Whyte was a “consultant” for Companion Technologies. As interim CEO, Defendant Whyte was responsible for hiring employees, overseeing the installation of a new computer system, and ensuring that the Board adopted all appropriate policies and procedures during the start-up period. Also, as part of his job description, Defendant Whyte was to assist the Board in finding and selecting a full-time CEO and, after doing so, was to remain in UnaHealth’s employ to assist in the newly hired full-time CEO’s initial time at the center.
On January 27, 2005, UnaHealth finalized the purchase of a complex computer system from Companion Technologies for over $109,000.00, presumably to be paid using grant funds. The sales order acknowledging the purchase of the equipment was signed by Defendant Whyte on behalf of UnaHealth.
On February 14-15, 2005, UnaHealth was evaluated by a representative of the Bureau of Primary Health Care (“BPHC”), a sub-agency of the Department of Health and Human Services. Following the site visit, BPHC wrote UnaHealth a letter (Doc. 73-10) documenting the evaluation and providing suggestions for moving forward. According to the let
On July 7, 2005, after conducting a telephone interview and an in-person interview with Plaintiff Angela Parato, the Board formally voted to offer Parato the position of full-time CEO of UnaHealth, a position she had informally been offered in May 2005. Parato, the recipient of a post-graduate fellowship in Medical Ethics and the Law from the University of Nebraska Medical Center, spent the six years prior to her arrival at UnaHealth in leadership roles at various community health centers in California. During this time, Parato performed many of the same duties she would be asked to perform once she began work for UnaHealth. Parato was offered the position by letter, and she accepted the position based on the terms set forth in that offer letter (Doc. 77-7).
According to Parato, in addition to the terms contained in the offer letter, the Board agreed to reimburse her for all expenses associated with her travel to the in-person interview, attendance at a grantee meeting, and relocation expenses. It is not disputed that Parato has not been reimbursed by UnaHealth for these expenses. Both parties admit that Parato received Check #442 from UnaHealth, which included “recruitment amounts” of $5,103.83. However, according to Parato, because this amount did not fully reimburse her for her relocation and travel expenses, she did not cash the check out of fear that doing so would release her claims against UnaHealth.
On August 2, 2005, UnaHealth applied for a continuation of the Section 330 grant, and based on that application, UnaHealth received continued funding from HHS. The August 2005 application was signed by both Defendants Irwin and Whyte, as UnaHealth’s authorized representatives, and contained the same certifications and assurances as the November 2003 application. Again, according to Parato, these assurances were necessary in order for UnaHealth to maintain approval as a Federally Qualified Health Center and receive continued Section 330 funding. During this time, Defendant Whyte remained at UnaHealth as interim CEO.
Parato formally began work as UnaHealth’s CEO on August 15, 2005. Among other things, Parato’s duties included directing and reviewing the development of budget and financial systems in order to assure compliance with all governmental and legal requirements, organizing staff and resources to carry out the Board’s plans, administering the day-to-day activities of the health center, and supervising all other UnaHealth employees.
To put it mildly, Parato and Whyte did not get along. According to Parato, within one week of beginning work as CEO, she became aware of numerous deficiencies at UnaHealth, and she complained mightily about Whyte’s refusal to relinquish his position as interim CEO and allow Parato to do her job. Most importantly to this litigation, Parato alleges that she discovered several problems concerning UnaHealth’s noncompliance with federal grant requirements.
One of these problems was Whyte’s alleged conflict of interest. According to Parato, Whyte, while serving as Una
Shortly after becoming aware of these alleged problems, Parato notified the Board of her concerns. In a memorandum to the Board dated August 25, 2005 (Doc. 37-4), Parato stated that Whyte’s “purchase of Companion Technologies equipment with federal funds as interim CEO/consultant is without question a conflict of interest that is in direct violation and breach of our grant application; the continuing application report, which I understand Dr. Whyte himself prepared and attests that conflicts of interest do not exist; and the law.” Furthermore, in relaying her concerns that Whyte’s actions were placing the center at risk, Parato stated that “just because something is not stipulated specifically in a statute does not make it any less illegal.”
The next day, in another memorandum addressed to the Board (Doc. 37-5), Parato expressed her concerns regarding UnaHealth’s alleged filing of fraudulent Medicare and Medicaid claims: “there is no other agenda that the government looks toward eradicating more than claims fraud. If staff follow [Whyte’s] direction and this was discovered, and it is checked relentlessly by the government, honest, hardworking people could go to jail. Claims filing is a complicated and highly scrutinized area as it is, to compromise staff in this way is simply unacceptable.”
The morning of August 30, 2005, Defendants Irwin and Lemmon informed Parato that the Board had met on August 28 and 29 to discuss Parato’s memoranda, and that another meeting was scheduled for the night of August 30. From approximately 8:00 a.m. until 12:00 p.m. that day, Parato was allowed limited access to UnaHealth’s records, for use in explaining her concerns to the Board. According to Parato, “Irwin and Lemmon observed [her] actions continually and were present, with at least one person standing next to [her] the entire time until noon that day.” Parato claims she was not allowed access to all of the records she sought, and at approximately 1:00 p.m., she was placed on administrative leave and was escorted from the premises.
At the meeting with the Board on the night of August 30, Parato again informed the Board of her myriad concerns regarding UnaHealth’s noncompliance with federal grant funding requirements. After the meeting, Parato was informed by the Board that “her services at [UnaHealth] were no longer required.” According to Parato, she was then presented with a document that, if signed by Parato, would operate to release any claims she may
III. DISCUSSION
Summary judgment must be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material facts and that the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). A genuine issue of material fact arises only when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc.,
A. Abandoned Claims
In her Amended Complaint, Parato asserts three primary claims: (1) that UnaHealth committed fraudulent acts in violation of the FCA, 31 U.S.C. § 3729; (2) that Parato was terminated in retaliation for protected conduct, in violation of 31 U.S.C. § 3730(h), and; (3) that UnaHealth breached a contract to reimburse Parato for her relocation expenses. In support of her first claim, that UnaHealth committed fraud in violation of the FCA, Parato alleged twelve specific instances of conduct that violated the FCA. In UnaHealth’s Motion for Summary Judgment, it addressed each of Parato’s specific allegations of fraudulent conduct. However, in her Response to the Defendants’ Motions for Summary Judgment (Doc. 77), Parato addresses only the alleged FCA violation arising from a purported conflict of interest and fails to address the remaining allegations of fraudulent conduct.
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Although Parato briefly mentions several of these alleged fraudulent acts in her Statement of Material Facts, it is well settled that claims not raised in the plaintiffs motion for summary judgment or in opposition to the defendant’s motion for summary judgment are deemed abandoned.
See Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp.,
Accordingly, those grounds asserted in Parato’s Amended Complaint but not raised in her Response to the Defendants’ Motions for Summary Judgment are abandoned and will not be considered by the Court in ruling on the Defendants’ Motions. Rather than list the claims she has abandoned, because they are numerous, the Court will instead list those that remain pending for review on summary judgment: (1) whether, because of an alleged conflict of interest, UnaHealth false
B. False Certification under the False Claims Act
The False Claims Act (“FCA”) provides that any person who undertakes certain specified acts shall be liable to the government for civil penalties for such conduct. 31 U.S.C. § 3729(a)(l)-(7). Under the FCA, and within certain limitations, a private citizen, who is referred to as a relator, may bring a civil action for violations of section 3729. 31 U.S.C. § 3730(b).
Parato does not specify which subsection^) of the FCA she contends the Defendants violated, but it appears to the Court, as it did to Judge Lawson in his January 11, 2010 order,
As noted above, Judge Lawson held that Parato’s Amended Complaint failed to state a claim for Medicare/Medicaid fraud, but left intact Parato’s claim that the Defendants falsely certified to the government that UnaHealth was in compliance with federal regulations and that, as a result, UnaHealth improperly received Section 330 grant funds. To state a false certification claim, “it is necessary to allege not only a receipt of federal funds and a failure to comply with applicable regulations, but also that payment of the federal funds was in some way conditioned on compliance with those regulations.”
Rodriguez v. Our Lady of Lourdes Med. Ctr.,
As discussed above, Parato’s claim is based on her contention that the Defendants certified that they would comply with certain grant requirements. Specifically, Parato contends that that in order to obtain approval as a Federally Qualified Health Center and receive or continue receiving Section 330 funding, UnaHealth falsely certified that it “[wjill establish
The elements of Parato’s claim are: (1) that the Defendants made a claim, or made a statement in order to get the Government to pay money on a claim; (2) that the claim or statement was false or fraudulent; and (3) that the Defendants knew that the claim or statement was false or fraudulent. See 31 U.S.C. § 3729(a)(l)(A)-(B). Under the FCA, a person “knowingly” submits a false claim if, with respect to information in the claim, the person: (1) has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required. 31 U.S.C. § 3729(b)(l)(A)-(B).
There can be no real debate about the first element of Parato’s claim: that the Defendants made a claim or made a statement in order to get the Government to pay money on a claim. The FCA defines a “claim” as “any request or demand, whether under a contract or otherwise, for money or property which is made to a contractor, grantee, or other recipient if the United States provides any portion of the money or property which is requested or demanded ....” 31 U.S.C. § 3729(c). The November 2003 and August 2005 grant applications, and the assurances made by UnaHealth with those applications, qualify as claims and statements in furtherance of claims under this definition—they were requests for federal grant money to be paid by the Department of Health and Human Services, an agency of the United States Government.
Elements two and three require considerably more analysis. Because the FCA does not define “false” or “fraudulent,” courts have not delineated a clear standard for determining whether a claim is, in fact, false or fraudulent. “[I]n practice courts have found it impossible to give meaning to the term [falsity] without also implicating the third element, the requirement that the defendant had ‘knowledge’ of the alleged falsity.”
U.S. ex rel. Lamers v. City of Green Bay,
Moreover, the Eleventh Circuit has held that the FCA “does not create liability merely for a health care provider’s disregard of Government regulations or improper internal policies unless, as a result of such acts, the provider knowingly asks the Government to pay amounts it does not owe.”
McNutt ex rel. U.S. v. Haleyville Medical Supplies, Inc.,
Although courts have held that promissory fraud can give rise to an FCA claim, it is a difficult theory under which to proceed.
U.S. ex rel. Hopper v. Anton,
Simply put, Parato has failed to show that, at the time UnaHealth submitted its grant applications in November 2003 and August 2005, UnaHealth had no intention of complying with the assurances contained therein. Whyte was not hired by UnaHealth until December 16, 2004. Clearly, any FCA violation stemming from an alleged conflict of interest caused by Whyte’s employment could not occur until the Board either hired or contemplated hiring Whyte. Because there is no evidence that the Board discussed Whyte pri- or to submitting its first grant application, there can be no false certification arising from the November 2003 application.
With regard to the August 2005 application, Parato, though not expressly, essentially argues that because UnaHealth allegedly violated the conflict of interest regulations in January 2005 when Whyte oversaw the purchase of computer equipment from Companion, its August 2005 assurance that it would establish safeguards to prevent future conflicts must have been false or fraudulent. However, as discussed above, “[i]t is not the case that any breach of contract, or violation of regulations or law ... automatically gives rise to a claim under the FCA.”
Hopper,
Accordingly, the Defendants’ Motions are granted on Parato’s false certification claim.
C. Retaliation
Parato also alleges that her termination was an act of retaliation for protected con
[a]ny employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section....
31 U.S.C. § 3730(h) (emphasis added).
Parato brings her retaliation claim against all the Defendants. However section 3730(h) makes clear that the proper defendant in a retaliation claim is the “employer.” None of the individual Defendants, in their individual capacities, “employed” Parato. Moreover, “even in cases arising under Title VII, which explicitly defines ‘employer’ as including ‘any agent of such a person [a person engaged in commerce and employing 15 or more persons],’ ... the word ‘employer’ does not cover a supervisor in his personal capacity.” Ye
sudian ex rel. U.S. v. Howard University,
Parato does not claim to have direct evidence that her termination was an act of retaliation for her protected activity. Rather, like most victims of alleged job discrimination and retaliation, she relies on circumstantial evidence, and the framework for analyzing circumstantial evidence first applied in
McDonnell Douglas Corp. v. Green,
A prima facie case of retaliation raises a presumption that the employer is liable to the employee, and the burden of
The burden then returns to the plaintiff to prove that the employer’s reasons are pretextual.
Id.
at 253,
UnaHealth does not contest, nor could it, elements (1) and (3) of the prima facie case: UnaHealth received federal funds from HHS, thereby subjecting it to coverage under the FCA, and Parato was fired as UnaHealth CEO.
Essentially, UnaHealth raises two arguments, though it tends to lump the two together. First, UnaHealth contends that Parato, when she was voicing her complaints, never threatened to bring an FCA claim and was not acting in furtherance of an FCA action. Rather, she was merely doing what she was supposed to do as Chief Executive Officer, i.e., bring to the Board’s attention what she perceived, erroneously the Defendants contend, to be irregularities, or “minor” irregularities as the Defendants would put it. Second, UnaHealth argues that Parato’s allegations had no merit and thus UnaHealth did not terminate her for bringing to the attention of its Board allegations of FCA fraud, but rather it terminated Parato for raising allegations of fraud and wrongdoing that had no merit. The first argument implicates the second prong of Parato’s prima facie ease, i.e., whether she engaged in protected activity. The second argument does not attack Parato’s prima facie case, but rather amounts to a reason UnaHealth claims it fired Parato. In other words, it is one of UnaHealth’s legitimate, nonretaliatory reasons for Parato’s discharge.
UnaHealth’s first argument can be called the “internal reporting” or “scope of duties” argument. It goes something like this. If an employee’s duties include reporting wrongdoing to her superiors, then simply reporting that wrongdoing cannot amount to protected conduct because the employee is simply doing what she was obligated to do; her conduct is not in furtherance of an FCA claim. UnaHealth, understandably, relies on
Mack v. Augusta-Richmond County, Georgia,
In
Mack,
Judge Bowen followed Judge Thompson’s approach in a case of a high-level employee who raised allegations of inappropriate conduct. Judge Bowen posed this question: “Indeed, why would an employer fear that an employee reporting non-compliance, whose job responsibilities include ensuring regulatory compliance, seeks to file a False Claims Act suit or report fraud to the government?”
However, the latest word on the subject comes from the Eleventh Circuit in
United States ex rel. Sanchez v. Lymphatx, Inc.,
Shortly after beginning work as UnaHealth’s CEO, Parato became aware of numerous alleged deficiencies at the een
The next day, in another memorandum to the Board, Parato expressed her concerns regarding UnaHealth’s alleged filing of fraudulent Medicare and Medicaid claims: “there is no other agenda the government looks toward eradicating more than claims fraud. If staff follow [Whyte’s] direction and this was discovered, and it is checked relentlessly by the government, honest, hardworking people could go to jail. Claims filing is a complicated and highly scrutinized area as it is, to compromise staff in this way is simply unacceptable.”
Based on this conduct, UnaHealth could have reasonably feared that Parato would, at a minimum, report the suspected fraudulent activity to the government. She characterized several instances of UnaHealth conduct as “illegal,” in violation of federal regulations, and “claims fraud,” and she even raised the specter of potential criminal liability stemming from UnaHealth’s actions. Moreover, she informed the Board of the seriousness with which the government investigates potential fraudulent activity by health centers. Thus, Parato’s actions were sufficient to support a reasonable conclusion that UnaHealth was aware of the possibility of litigation under the FCA.
For the last element of her prima facie case, Parato must demonstrate a causal connection between her protected conduct and her termination as UnaHealth CEO. “The showing necessary to demonstrate the causal-link part of the primafacie case is not onerous.”
Mann,
Additionally, the Supreme Court requires a causal link based on mere temporal proximity to be “very close” and approvingly cited circuit decisions holding three-and four-month periods insufficient to establish a causal connection.
Clark County Sch. Dist v. Breeden,
Here, UnaHealth was undoubtedly aware of Parato’s conduct, and the temporal proximity between her protected conduct and her discharge could not be closer. Between August 22, 2010 and August 26, 2010, Parato sent numerous memoranda to the Board detailing her concerns over UnaHealth’s alleged regulatory noncompliance and illegal activity. The Board, by its own admission, convened meetings on August 28, 29 and 30, 2010, to discuss Parato’s allegations. Following the meeting on August 30, Parato was informed that she had been terminated. Based on this sequence of events, the
Because Parato has established her prima facie case, the burden of production shifts to UnaHealth to articulate a legitimate, nonretaliatory reason for its decision to fire Parato. UnaHealth lists numerous alleged nonretaliatory reasons in its Motion for Summary Judgment: (1) Parato was not a proper fit with UnaHealth and lacked necessary knowledge regarding Federally Qualified Health Center operations; (2) she demanded a switch to an improper accounting system from the HRSA approved accounting system in place at UnaHealth; (3) she cancelled previously scheduled television commercials; (4) she interfered with previously scheduled training sessions for employees; and (5) she never provided evidence to substantiate her claims made against fellow employees at UnaHealth. Clearly, however, given the events of late August, the “elephant in the room” is the fact that everything happened in the context of Parato’s vigorous allegations of fraud and wrongdoing. In view of that, it is not surprising that, in its Reply Brief (Doc. 78), UnaHealth states that “[w]hen [Para-to] failed to support her claims with any evidence, however, the Board decided to take action against [Parato] in consideration of the multiple other problems she had caused at UnaHealth in her brief tenure as Chief Executive Officer.” In short, UnaHealth claims Parato was fired because she raised baseless allegations of fraud and wrongdoing.
In attempting to articulate a legitimate, nonretaliatory reason, it appears as though UnaHealth may have, in fact, hurt its case more than it helped it. In essence, UnaHealth argues that Parato raised concerns, albeit meritless concerns in the eyes of UnaHealth, regarding UnaHealth’s noncompliance with federal regulations and laws, and because she could not substantiate her concerns in the limited time allowed her, UnaHealth fired her. Although there is evidence in the record that UnaHealth convened board meetings on August 28 and 29 to investigate and discuss Parato’s allegations, the Court, as evidenced by its detailed analysis in Section B above and Judge Lawson’s Order denying the Defendants’ Motion to Dismiss, concludes that Parato’s alleged FCA violations were not so meritless, at the time of Para-to’s termination, as to be capable of resolution following one or two brief meetings of the Board of Directors. UnaHealth’s characterization of Parato’s conduct as “crying wolf after less than two weeks on the job” drastically understates the seriousness of her allegations. If an employer could avoid FCA whistleblower liability by simply declaring that it fired an employee because her claims of fraud were baseless, the protection the FCA seeks to provide whistleblowers would be gutted. UnaHealth has not stated a legitimate, nonretaliatory reason for Parato’s discharge.
In short, the Court finds that there is sufficient evidence to create a genuine issue of material fact as to whether UnaHealth was actually motivated in part by a retaliatory motive when it terminated Parato. Accordingly, UnaHealth’s Motion for Summary Judgment on Parato’s retaliation claim is denied.
D. State Law Breach of Contract
Parato’s final claim rests on theories of state law breach of contract and promissory estoppel.
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As an initial mat
As part of its offer of employment, UnaHealth offered to reimburse Parato for the expenses associated with her relocation to the Unadilla area. According to Parato, this offer included reimbursement for all expenses associated with her travel to Unadilla for an interview, attendance at a grantee meeting, and relocation expenses. By accepting this offer, a contract was formed. Parato now alleges that UnaHealth never fully reimbursed her for the expenses she incurred, and, as a result, UnaHealth breached the contract.
UnaHealth responds that it sent Parato checks that included reimbursement for all documented moving expenses. Indeed, Parato does not deny that she received check # 442 from UnaHealth, which included “recruitment amounts” of $5,103.83. However, according to Parato, this amount did not fully reimburse her for all the expenses she alleges she incurred in relocating to Unadilla, and, consequently, she did not cash the check out of fear that doing so would release her claims against UnaHealth. On September 12, 2006, UnaHealth sent Parato a letter (Doc. 75-12), in which it notified Parato that if the check was not cashed by September 30, 2006, UnaHealth would have the bank place a “stop payment” on it. By voluntarily choosing not to cash the check, UnaHealth contends, Parato waived her right to bring this breach of contract claim.
UnaHealth is wrong. It is well-settled in Georgia law that “[a] creditor’s refusal to accept a proper tender does not extinguish the claim.”
Kellos v. Parker-Sharpe, Inc.,
Moreover, Parato disputes that UnaHealth made a proper tender, and there are questions of fact regarding what amount UnaHealth owes Parato under their agreement for reimbursement of her “relocation expenses.” The parties dispute whether certain expenses should be included in the total, and there is insufficient evidence in the record to determine the proper scope of the reimbursement agreement and the final amount due under the contract. Therefore, UnaHealth is not en
IV. CONCLUSION
For the foregoing reasons, the Motions for Summary Judgment are GRANTED on Parato’s false certification FCA claim. With regard to Parato’s retaliation claim, the Motions are GRANTED to all individual defendants, and DENIED to UnaHealth. Finally, with regard to Parato’s breach of contract claim, the Motions are GRANTED to all individual defendants, and DENIED to UnaHealth.
Notes
. It bears mentioning that the parties took no discovery depositions. The record essentially consists of documents and dueling affidavits, and the Court does not have the benefit of cross-examination to test the parties' allegations. It is hard to say whether the absence of deposition testimony hurts or helps any party, but it is curious.
. UnaHealth first submitted an application for federal assistance on February 18, 2003. The February 18, 2003, application was denied.
. Although there is no evidence that the BPHC evaluation specifically addressed any matter that became the subject of Parato's allegations, the Defendants cite the visit as evidence that BPHC uncovered no significant wrongdoing and that the Defendants were doing their best to comply with all applicable federal requirements.
. Whyte, in his affidavit, denies that his role as a Companion Technologies consultant had anything to do with UnaHealth’s purchase of anything. Again, without the benefit of cross-examination, it is difficult to assess whether a conflict of interest actually existed. For the purpose of resolving these Motions, the Court assumes that Whyte had a conflict of interest when he served both as interim CEO and as a consultant for Companion Technologies.
. The Court suspects that Parato's failure to address certain claims was intentional. For example, Parato claimed that UnaHealth committed FCA fraud when it used an accrual accounting method rather than cash accounting. Evidence adduced by the Defendants debunks this claim. Indeed, the Defendants cite Parato's wrongheaded insistence that UnaHealth change its method of accounting as an example of why Parato was unqualified for her job.
. As noted in Judge Lawson’s Order, 31 U.S.C. § 3729 was amended in 2009 by the Fraud Enforcement Recovery Act of 2009 ("FERA”). Pub. L. No. 111-21, 123 Stat. 1617. The amended version of subparagraph (A) is not applicable here because it applies only to conduct on or after the date of enactment, which was May 20, 2009. Subparagraph (B) took effect as if enacted on June 7, 2008, and applies to all claims under the FCA that were pending on or after that date. For purposes of the FCA, a "claim” is defined as a "request or demand ... for money or property.” 31 U.S.C. § 3729(c). The revised version of section (a)(1)(B) does not apply to this case because none of the Defendants’ claims (the grant requests) were pending on or after June 7, 2008.
See Hopper v. Solvay Pharmaceuticals, Inc.,
. Like section 3729, section 3730(h) was . amended in 2009. However, the amended version of section 3730(h) does not apply to this case because the amended version, which took effect on May 20, 2009, applies only to conduct on or after May 20, 2009. Here, the alleged retaliatory conduct occurred in 2005.
. Some courts articulate a two part test, while others articulate a three part test.
Mack v. Augusta-Richmond County, Georgia,
. Very generally, an employee engages in protected activity when she raises a “distinct possibility” that an FCA claim will be asserted against the employer. However, as noted by other courts, the “distinct possibility” label is not particularly helpful. As Judge Thompson stated in
Mann,
in cases “where the plaintiff did not even know about the FCA and therefore did not tell her employer that she was contemplating legal action, the correct application of the ‘distinct possibility’ test is much more difficult, if not completely elusive.”
. Federal courts have jurisdiction to hear state law claims which "derive from a com
. This view is buttressed by Parato’s contention in her Response to the Defendants’ Motions that "UHC, [UnaHealth], is not entitled to a judgment in its favor on Count III of Plaintiff’s Complaint.”