The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff-relator Jacqueline Grandeau (plaintiff) brought this
qui tam action on behalf of the governments of the United States
and the State of Illinois, alleging fraudulent billing practices by the
defendants and claiming that defendants unlawfully terminated her in
retaliation for her investigation. Defendants filed a motion seeking
summary judgment as to the unlawful retaliation claims, counts IV, V and
VI. For the following reasons, defendants' motion is granted.
From August 1997 to May 2000, plaintiff was employed by defendant
Midwest Regional Medical Center (MRMC) in Zion, Illinois, of which
defendant Cancer Treatment Centers of America (CTCA) is the corporate
parent. She was responsible for coding and assisting in the billing for
hospital and physician services. Without the proper codes, MRMC and CTCA
could not collect payment from government insurance programs. Shortly
after she started working for MRMC, plaintiff alleges that she discovered
fraudulent billing practices by defendants. She
claims that she went to her supervisors to express her concerns about
these practices and warned them that the activity was illegal.
In November 1999, plaintiff took medical leave from MRMC, as allowed by
the Family and Medical Leave Act (FLMA). She took additional FLMA leave
in January, February and March of 2000. MRMC's records (which plaintiff
disputes) indicated that as of April 21, 2000, plaintiff had exceeded her
FLMA leave allowance by 48 hours. In March 2000, plaintiff moved to
Tucson, Arizona. In April 2000, plaintiff married Michael Grandeau in
Tucson and began working for Tucson General Hospital in Arizona and
requested that her mail be forwarded to an Arizona address, where she was
living with her husband. Although she was originally scheduled to return
to work on May 8, 2000, she arranged with Susan Thomas, before that
date, that instead of physically returning to work they would communicate
by phone to discuss her plans for returning to MRMC. This planned
conversation never took place and defendants decided two days later to
officially terminate plaintiffs employment, stating that she took
excessive leave and failed to return to her job as scheduled. While she
claims to have tried, twice, unsuccessfully, to speak with Thomas on May
8, plaintiff made no further attempt to contact anyone at MRMC until
after she received mailed notice of her termination, on May 18, 2000.
Our function in ruling on a motion for summary judgment is merely to
determine if there is a genuine issue of material fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Only if the
evidence on file shows that no such issue exists, and that the moving
party is entitled to judgment as a matter of law, will we grant the
motion. Celotex Corp. v
Catrett, 477 U.S. 317, 322-23 (1986); Bennett v. Roberts, 295 F.3d 687,
694 (7th Or. 2002).
The federal False Claims Act (FCA), 31 U.S.C. § 3730(h), and the
Illinois Whistleblower Reward and Protection Act (IWRPA), 740 ILCS
175/4(g), provide protection to employees in Grandeau's position from the
danger of unlawful retaliation by employers for their participation in
false claims investigations. Likewise, Illinois law protects employees
from discharges that violate clearly established public policy. Stebbings
v. University of Chicago, 726 N.E.2d 1136, 1140 (Ill. App. 1st Dist.
2000). To prevail, plaintiff must demonstrate that (1) she was engaging
in protected activity; (2) defendants knew of this activity; and (3) her
termination was motivated by a desire to retaliate for the protected
activity. See Brandon v. Anesthesia & Pain Management Associates. Ltd.,
277 F.3d 936, 944 (7th Cir. 2002); U.S. ex rel Humphrey v.
Franklin-Williamson Human Services, Inc., 189 F. Supp.2d 862, 867 (S.D.
Ill. 2002) (holding that because the language in the federal and state
statutes is nearly identical, FCA case law should provide the standards
for IWRPA claims); Tod A. Lewis, The Illinois Whistleblower Reward and
Protection Act and Its Out Tarn Provisions, 88 Ill. B.J. 392 (2000);
Stebbings, 726 N.E.2d at 1140.
Although it is far from clear that defendants actually knew that
plaintiff was participating in an FCA-related investigation, there is
enough evidence of notice to withstand a summary judgment motion on that
issue. A plaintiff may prove notice either expressly or implicitly.
Luckey v. Baxter Healthcare Corp., 2 F. Supp.2d 1034, 1054 (N.D. Ill.
1998), aff'd 183 F.3d 730 (7th Cir. 1999). Plaintiff does not claim that
she actually told her employer that she was thinking about filing an FCA
lawsuit, but instead presents evidence indicating that her supervisors
should have realized that such a suit was possible, even though she tried
to keep her
actual investigatory activities secret. Specifically, plaintiff claims
that she repeatedly told her supervisors that their billing practices
were illegal and refused to enter certain codes. She allegedly warned her
employers that they could go to jail for submitting fraudulent claims and
was actually told by defendant Roger Gary to stop using the word "fraud"
when discussing the claims.
In Luckey, the plaintiff voiced concerns about her employer's handling
and testing procedures. 2 F. Supp.2d at 1041. She frequently talked to
co-workers about these concerns and her regular complaints apparently
irritated her supervisors. Id. She even questioned the legal
ramifications of the company's activity. Id. at 1041-42. The district
court found that this conduct was insufficient to notify plaintiffs
employers of FCA-protected activity. Id. at 1055-56. Judge Castillo
determined that the plaintiff had never specifically mentioned "fraud" or
the possibility of a qui tarn lawsuit in such a way that the employers
should have realized that such a suit was likely. Id.
While the conduct here is similar to that of the plaintiff in Luckey,
Grandeau's statements were less ambiguous. Her frequent usage of the word
"fraud" and her concerns about legality could have forewarned defendants
of a potential FCA lawsuit. Even if the investigation of potential
fraudulent billing was part of plaintiffs job (a contention which she
denies), her ongoing complaints about defendants' potentially illegal
billing practices would have put them on notice of a potential
Plaintiff's claim fails since she does not produce evidence that her
termination was in any way motivated by defendants' knowledge of her
protected activity. In Stone v. City of Indianapolis Public Utilities,
281 F.3d 640, 643-44 (7th Cir. 2002), Judge Posner enunciated a
new rule for proving retaliation in this circuit.*fn1 Believing that
requiring a plaintiff to prove an actual causal link was too stringent,
the court stated that a plaintiff in an unlawful retaliation suit may,
alternatively, demonstrate that she was treated differently from a
similarly situated employee. Id. at 644. Specifically, Judge Posner wrote
that the second route requires the plaintiff to show that only she, and
not any other similarly situated employee, was subject to the adverse
employment action even though she was performing in a satisfactory
Plaintiff does not demonstrate that when she was discharged she was
performing satisfactorily. The record clearly shows that plaintiff was
absent from work for significant periods of time in late 1999 and early
2000. She admits that she had used leave in excess of the twelve weeks
allowed by FLMA. In fact, by the time of her termination, plaintiff had
relocated to Arizona to live with her husband and had already started a
new job there. She admits that she had no plans to return to Chicago or
to her job at MRMC. The facts establish that defendants acted reasonably
(and not in retaliation) when they finally terminated plaintiffs
employment. In response, plaintiff offers no evidence, other than her
suspicion, that her discharge was related to her protected activities.
This alone is not sufficient to defeat a summary judgment motion.
See Luckey, 2 F. Supp.2d at 1057.
Moreover, the evidence shows that plaintiff was not treated differently
from similarly situated employees. Another MRMC employee, Selena Vega,
took her twelve weeks of leave as allowed by FLMA. Defendants then
allowed Vega to take additional personal leave, but set
a date for her to return to work. When Vega failed to return, she was
discharged. Plaintiff claims that she was treated differently because
defendants let Vega take personal leave after the FLMA leave, but gave
plaintiff no such consideration. In fact, plaintiff had exceeded her FLMA
leave entitlement by 48 hours as of April 21, 2000, but was not
terminated until May 10, 2000, after she failed to return to work. While
the actual amount of leave taken ...