United States District Court, W.D. Virginia, Harrisonburg Division
KATHYA. CHAPINS, Plaintiff,
NORTHWESTERN COMMUNITY SERVICES BOARD, Defendant.
Michael F. Urbanski United States District Judge
an employment dispute. Plaintiff Kathy A. Chapins brings
claims against her former employer, Northwestern Community
Services Board ("Northwestern"), of retaliation and
age discrimination under the False Claims Act
("FCA"), 31 U.S.C. § 3729, et seq.,
and the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. § 621, et seq..
respectively. Before the court is Northwestern's motion
for summary judgment. ECF No. 17. The matter has been fully
briefed, and the court heard oral argument on March 3, 2017.
For the reasons set forth below, the court finds that Chapins
has failed to establish a genuine issue of material fact, and
Northwestern is entitled to judgment as a matter of law on
both counts. Accordingly, the court GRANTS Northwestern's
motion for summary judgment (ECF No. 17). Northwestern's
Motion in Limine (ECF No. 26), is DENIED as moot.
Northwestern oversees "an array of outpatient, case
management, day support, residential and emergency
programs" designed to help adults and children combat
addiction, mental illness, and emotional/behavioral
disorders. What we do for you and your family,
Northwestern Community Services (last visited Mar. 3, 2017),
http://www.nwcsb.com/aboutus.php. Chapins began her
employment at Northwestern in 2003, and from February 2011
through June 13, 2014 worked as the Office Manager at
Northwestern's Shenandoah County Youth Services Center.
ECF No. 1, ¶ 8. In February 2011, "Chapins reported
her suspicions" that a coworker, Clare Matthews, had
submitted false Medicaid claims and timesheets to her
supervisor, Barbara Kibler. Id. ¶ 10. As a
result, Matthews was suspended, and later terminated after
her position was eliminated. Id. ¶ 11. After
reporting Matthews, Chapins claims she experienced harassment
at the hands of Matthews' subordinates, resulting in
Chapins' hospitalization due to stress in July 2011.
Id. ¶ 12. Chapins argues that Kibler and Chief
Operations Officer Mark Gleason mischaracterized this
harassment as a "relationship problem, " and
threatened her with transfer or termination if she could not
resolve her differences with her coworkers. Id.
¶ 13. As a result, in December 2011, Chapins filed a
grievance against Gleason; Chief Financial Officer David Toth
subsequently dismissed her grievance, and assured her
"there was no threat of termination or transfer."
Id. ¶¶ 14, 16. Subsequently, however, Toth
retired, and, according to Chapins, "Gleason resumed his
campaign of hostility." Id. ¶ 17.
spring 2014, Northwestern discontinued the Therapeutic Day
Treatment Program (the "TDT program"), on which
Chapins worked. Id. ¶ 18. Chapins, along
with thirty-three others, were terminated when the TDT
program was discontinued. Id.; see ECF No. 18, at
11. After receiving her termination notice, Chapins applied
for a different position (die "Office Manager II
position"). ECF No. 1, ¶ 20. Kibler delayed the
hiring process to allow Chapins and her coworker, Sarah
Clark, to apply. ECF No. 18, at 15; see Kibler Dep. Tr., ECF
No. 24, at 45:19. In fact, Chapins and Clark were the only
applicants; both interviewed, and both received high scores
on their interview evaluations. ECF No. 18, at 15. However,
Chapins alleges that her interview, conducted by Gleason and
Kibler, was "hostile, intimidating and
antagonistic." ECF No. 1, ¶ 21. Ultimately, Chapins
was not chosen for the position, and Clark, seventeen years
her junior and thus not within the class of protected persons
under the ADEA, was. Id. ¶¶ 22, 25.
filed suit in May 2016. She first alleges that Nordiwestern
retaliated against her for reporting Matthews: "Chapins
was threatened, harassed, terminated and not selected for a
position for which she was the more qualified applicant by
Northwestern in violation of the [FCA]." Id.
¶ 29. Second, Chapins alleges that Northwestern
discriminated against her on account of her age, in violation
of the ADEA, "by selecting a lesser qualified applicant
of a non-protected status for the Office Manager [II]
position." Id. ¶ 33. In response,
Northwestern answered, ECF No. 5, before filing a motion for
summary judgment on January 25, 2017. ECF No. 17.
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 Cir. 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 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, "[c]redibility 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 121,
124 (4th Cir. 1990)).
court first considers Chapins' FCA claim. The
anti-retaliation provision of the FCA prohibits adverse
action 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 the first and
third requirements. First, reporting Matthews for
discrepancies in her timesheets does not constitute protected
activity because "there is no evidence in the record
that [Northwestern], the employer, had or intended to commit
a fraud against the government." ECF No. 18, at 9. As to
the third requirement, Northwestern argues that its conduct
"neither occurred within the [statutory] limitations
period nor rises to the level of retaliation[, ] and that the
decisions with respect to [Chapins'] termination and
non-selection for an office manager position were based on
legitimate business reasons unrelated to [Chapins']
reports three years earlier." Id. at 9-10.
Though Chapins likely engaged in protected conduct when she
reported Matthews' for inaccurate billing, the court
agrees that Chapins has failed to show that a reasonable jury
could find that Northwestern retaliated against her. Because
all three elements are necessary to establish a retaliation
claim, this failure compels the grant of summary judgment to
amended 31 U.S.C. § 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.l (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
Cir. 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. 657 F.App'x 168, 171 (4th
Cir. 2016); 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. 657 F.App'x at 168-69. 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 Chapins cannot prevail under either prong; because
"there is no evidence that [Chapins] intended to file a
qui tarn suit, " her actions cannot have been
taken "in furtherance of an FCA action. ECF No.
18, at 8. Moreover, under the second prong, Northwestern
argues that Chapins cannot have had a reasonable, good faith
belief that it would have violated the FCA, because,
"once [Chapins] reported her initial concerns, she
learned of the various efforts to prevent [fraudulent
billing] and was requested to assist in verifying time for
employees of the TDT program." Id. at 9
(footnote omitted). The court disagrees.
accepting that, once Chapins reported Matthews, she was
confronted with incontrovertible proof that Northwestern
would not submit fraudulent bills to the government, this
still does not rebut Chapins' contention that she
harbored an objectively reasonable belief that an FCA
violation might occur before and during the process
of reporting Matthews. The FCA does not define protected
conduct so narrowly; in particular, protected conduct does
not lose this status simply because the whistleblower later
learns information that disproves her belief in an FCA
violation. Instead, to be protected as a whistleblower,
Chapins need only "evince some attempt to expose
possible fraud, " and provide "some suggestion of
impropriety or illegality by the employer." United
States ex rel. Owens v. First Kuwaiti Gen. Trading &
Contracting Co., 612 F.3d 724, 735 (4th Cir. 2010).
meets this burden: viewing the facts in her favor, she has
demonstrated a good faith, objectively reasonable belief in
potential fraud against the government. Chapins
"reported her suspicions" that Matthews
"submitted false claims for Medicaid and false
timesheets to her direct [s]upervisor, Barbara Kibler."
ECF No. 19, at 2. These suspicions were based on
"numerous instances of inaccurate documentation being
submitted for Medicaid reimbursement, " which Chapins
had observed for "a couple of years, . . .
minimum." Chapins Dep. Tr., ECF No. 25, at 20-21. When
asked for examples, Chapins responded,
[T]here's no way that I can recall the countless
situations that were dishonest from her. She would sign off
on documentation, for instance, that-and then allow it to be
billed knowing that she had never met the requirements that
Medicaid set forth for that particular document. That
happened countess times, way too many for me to recall.
She would lie to her supervisor.
Q: About what?
A: Everything, where she was, what time she was there, what
she was doing, and the list goes on.
Id. at 20:21-21:17. Most importandy, there is no
suggestion in die record mat, during her investigation of
Matthews' conduct, Chapins was aware of
Northwestern's internal auditing procedures, or any other
facts that would suggest that Matthews' fraudulent claims
would not be passed on to the government. In the absence of
such information, Chapins behaved reasonably in believing
that Matthews' false claims would be accepted by her
employer and would ultimately result in fraud on ...