United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI UNITED STATES DISTRICT JUDGE.
case, Tonya Ranee Scates ("Scates") claims her
former employer, Shenandoah Memorial Hospital
("SMH"), terminated her employment in retaliation
for her complaints about false billing practices for
ultrasound exams. Before the court is SMH's motion for
summary judgment, ECF No. 52. SMH also brings a motion in
limine, ECF No. 48, and a motion to exclude certain
plaintiffs witnesses, ECF No. 50. Scates brings motions in
limine as well. ECF Nos. 70, 71. The matter has been fully
briefed, and the court heard oral argument on September 21,
2016. For the reasons set forth below, the court finds that
Scates has failed to establish a genuine issue of material
fact, and SMH is entitled to judgment as a matter of law.
Accordingly, the court will GRANT SMH's motion for
summary judgment (ECF No. 52). The parties' remaining
motions (ECF Nos. 48, 50, 70, 71) are DENIED as moot.
SMH is a medical facility that offers medical imaging and
other services. ECF No. 26, ¶ 4. SMH is a member of a
network of hospitals known as Valley Health. Id.
Plaintiff Tonya Scates worked as an ultrasound technician and
radiologic technologist at SMH from February 2014 until
January 27, 2015.14 ¶¶ 7, 42, 44. Her duties
included performing ultrasound exams. In October 2014, Scates
attended an ultrasound seminar, during which she overheard
the instructor discussing billing procedures for ultrasounds,
including the Current Procedural Terminology
("CPT") billing codes promulgated by the American
Medical Association. Id. ¶ 21. Based on this
information, Scates believed that ultrasounds performed at
SMH failed to meet CPT billing standards, because technicians
at SMH took fewer ultrasound photos than required.
Id. ¶ 25. "Scates feared that SMH would
face charges of fraud" for this failure to meet CPT
billing requirements. Id. ¶ 27.
returning from the seminar, Scates claims she reported her
billing concerns to her supervisor, James Ziner
("Ziner"). M, ¶ 28. Ziner is the Radiology
Director at SMH. Id. ¶ 9. Scates allegedly told
Ziner that "[f]raud cases are on the rise, " and
asked him to clarify CPT billing requirements. Id.
¶ 28, 29. Ziner told Scates that he would look into it.
Id. ¶ 31. Scates also dscussed her concerns
with Gayle Wellard, who allegedly agreed with Scates that SMH
failed to meet CPT billing requirements. Id. ¶
33. Scates and Wellard then spoke to Ziner together; Ziner
did not respond to their concerns. Id. ¶ 34.
roughly the same period, Scates was involved in several
workplace dsputes,  most notably with her coworker, Laurice
Corbitt ("Corbitt"). See ECF No. 26, ¶¶
14-20, 38, 40-41. Corbitt complained that Scates "would
not give her information that would be helpful to patient
care, " and that she would "tattle to Jim
[Ziner]" about Corbitt's behavior. Heishman Dep. Tr.
94:13-16. Scates, in turn, reported Corbitt for serious
errors in her work several times, including in October 2014.
ECF No. 26, ¶¶ 19, 20.
November 6, 2014, Scates met with Ziner, SMH Vice President
Lisa Stokes, and SMH Human Resources Officer Debbie Campisi.
Id. ¶ 36. Ziner and Stokes gave Scates a
"corrective action document" outlining several
complaints filed by coworkers against Scates. Id.
Scates claims that Ziner recognized that these complaints
were false. Id. ¶ 37. Corbitt never received a
corrective action document. Campisi Dep. Tr. 22:6-11. In
December 2014, Ziner requested that Corbitt and Scates meet
to resolve the issues between them; Corbitt refused. ECF No.
26, ¶ 40.
filed another complaint against Corbitt in January 2015.
Id. ¶ 41. On January 27, 2015, Scates met with
Ziner and Stokes. Id. ¶ 42. During this
meeting, Ziner said he was "tired of dealing" with
Scates's workplace conflicts. Id.; see Ziner
Dep. Tr. 100:1-22. Ziner and Stokes terminated Scates and
prohibited her from working at any hospital within the Valley
Health network. ECF No. 26, ¶¶ 44, 45.
brought this suit in May 2015, alleging a claim for
retaliation under the False Claims Act, 31 U.S.C. §
3730(h) ("FCA"), and a state-law wrongful
termination claim. ECF No. 1. SMH filed a motion to dismiss
the original complaint, ECF No. 4, which was denied as moot
after Scates moved to amend her original complaint. ECF Nos.
13, 14. Scates then filed her amended complaint, ECF No. 15,
and SMH again moved to dismiss. ECF No. 16.
October 19, 2015, the court granted SMH's motion to
dismiss, finding Scates "failed to allege sufficient
facts to state a prima facie case for retaliation" under
the FCA, and that her claims under Virginia law were
implausible. ECF No. 24, at 1. The court dismissed with
prejudice Scates's claims under Virginia law, but granted
her leave to file a second amended complaint, asserting
"additional allegations against SMH on her FCA
retaliation claim only." Id. at 19. Scates did
so, ECF No. 26, and SMH filed a motion for summary judgment
on July 25, 2016. ECF No. 52.
to Federal Rule of Civil Procedure 56(a), the court must
"grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Glynn v. EDO Corp., 710 F.3d
209, 213 (4th Or. 2013). When making this determination, the
court should consider "the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with . . . [any] affidavits" filed by the parties.
Celotex, 477 U.S. at 322. Whether a fact is material
depends on the relevant substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
"Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude
the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted."
Id. (citation omitted). The moving party bears the
initial burden of demonstrating the absence of a genuine
issue of material fact. Celotex, 477 U.S. at 323. If
that burden has been met, the non-moving party must then come
forward and establish the specific material facts in dispute
to survive summary judgment. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
determining whether a genuine issue of material fact exists,
the court views the facts and draws all reasonable inferences
in the light most favorable to the non-moving 1 party.
Glynn. 710 F.3d at 213 (citing Bonds v.
Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Indeed,
"[i]t is an 'axiom that in ruling on a motion for
summary judgment, the evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
[her] favor."' McAirlaids. Inc. v.
Kimberly-Clark Corp., No. 13-2044, 2014 WL 2871492, at
*1 (4th Cir. June 25, 2014) (internal alteration omitted)
(citing Tolan v. Cotton, 134 S.Ct. 1861, 1863 (2014)
(per curiam)). Moreover, "[credibility determinations,
the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge . . . ." Anderson, 477 U.S. at 255.
However, the non-moving party "must set forth specific
facts that go beyond the 'mere existence of a scintilla
of evidence.'" Glynn, 710 F.3d at 213
(quoting Anderson, 477 U.S. at 252). Instead, the
non-moving party must show that "there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party." Res. Bankshares Corp. v.
St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir.
2005) (quoting Anderson, 477 U.S. at 249). "In
other words, to grant summary judgment the [c]ourt must
determine that no reasonable jury could find for the
nonmoving party on the evidence before it." Moss v.
Parks Corp.. 985 F.2d 736, 738 (4th Cir. 1993) (citing
Perini Corp. v. Perini Const. Inc., 915 F.2d 121124
(4th Cir. 1990)).
whistleblower provision of the FCA prohibits retaliation
against employees because of "lawful acts done ... in
furtherance of an action under this section or other efforts
to stop 1 or more violations of this subchapter." 31
U.S.C. § 3730(h). To establish retaliation, a plaintiff
must show (1) she engaged in "protected activity, "
(2) her employer knew about that activity; and (3) her
employer took action against her as a result. Glynn v.
EDO Corp.. 710 F.3d 209, 214 (4th Cir. 2013).
argues it is entitled to summary judgment on all three of
these requirements: Scates's "vague concern about
billing was not 'protected activity' under the FCA,
was not sufficient to put SMH on notice of any such activity,
and was not the reason for her termination." ECF No. 53,
at 2. The court agrees that Scates has failed to show that a
reasonable jury could find for her on elements (1) that she
engaged in protected activity; and (3) that SMH fired her as
a result of this activity. Because all three elements are
necessary to establish a retaliation claim, and either
finding is sufficient to compel the grant of summary judgment
to SMH, the court will not reach element (2): the issue of
whether SMH was on notice of Scates's activity.
amended § 3730(h) in 2010 by adding "efforts to
stop 1 or more violations" of the FCA as protected
activity under the statute. Thus, employee action is
protected if it is taken (1) "in furtherance of an
action" under the FCA, or represents (2) "other
efforts to stop 1 or more" FCA violations. 31 U.S.C.
§ 3730(h). Proof that the FCA has been violated is not
necessary to establish protected activity. Graham Cty.
Soil & Water Conservation Dist. v. United States ex rel.
Wilson. 545 U.S. 409, 416 n.1 (2005). In fact, in some
circumstances, § 3730(h) "protects an
employee's conduct even if the target of an investigation
or action to be filed [is] innocent." Id. at
is protected under the first prong if it meets the
"distinct possibility" standard. Mann v.
Heckler & Koch Def.. Inc.. 630 F.3d 338, 344 (4th
Or. 2010); Layman v. MET Labs. Inc.. No.
RDB-12-2860, 2013 WL 2237689, at *7 (D. Md. May 20, 2013).
"Under this standard, protected activity occurs when an
employee's opposition to fraud takes place in a context
where 'litigation is a distinct possibility, when the
conduct reasonably could lead to a viable FCA action, or when
. . . litigation is a reasonable possibility.'"
Mann. 630 F.3d at 338 (ellipsis in original)
(quoting Eberhardt v. Integrated Design & Const,
Inc., 167 F.3d 861, 869 (4th Or. 1999)).
second prong ("other efforts to stop" FCA
violations) protects a wider range of activity. Carlson
v. DynCorp Int'l LLC., No. 14-1281, 2016 WL 4434415,
at *3 (4th Cir. Aug. 22, 2016) (unpublished); see Smith
v. Clark/Smoot/Russell. 796 F.3d 424, 434 (4th Cir.
2015) (second prong "plainly encompasses more than just
activities undertaken in furtherance of a False Claims Act
lawsuit"). In Carlson, the plaintiff argued he
was retaliated against for his efforts to stop an FCA
violation by his employer. 2016 WL 4434415, at *1. The court
"assume[d], without deciding, " that "efforts
to stop 1 or more violations" are "protected
activity where those efforts are motivated by an objectively
reasonable belief that the employee's employer is
violating, or soon will violate, the FCA." Id. at
argues Scates cannot prevail under either prong because her
belief that SMH engaged in fraud was objectively
unreasonable. See ECF No. 53, at 21; ECF No. 75, at 6.
Because Scates's first concern was related to SMH's
potential underbilling (which cannot be considered
fraudulent), and her second concern merely reflects her own
misunderstanding of how to bill for certain ultrasounds, SMH
concludes that neither concern raises an objectively
reasonable possibility of fraud, and "therefore, Scates
did not engage in 'protected activity' by raising her
concerns." ECF No. 53, at 21 (quoting Mann. 630
F.3d at 345-47). The court agrees.
broadly describes her concerns as related to
"inconsistencies in descriptions of services provided by
ultrasound technicians." ECF No. 67, at 5. These
inconsistencies fall into three categories. First, Scates was
concerned about ultrasound technicians' failure to
consistentiy document the use of a transvaginal
probe. See Scates Dep. Tr. 155:14-19,
162:8-163:25, 205:18-206:14. Sometimes an order for an
"ultrasound complete" would include use of a
transvaginal probe, despite the fact that "ultrasound
complete with transvaginal" was often separately
requested. Id. at 155:12-19. Scates's second
concern is similar: she claims technicians often used a
technique known as duplex Dopplar when it was not requested,
despite the fact that other orders specifically ...