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Heath v. Indianapolis Fire Department

United States Court of Appeals, Seventh Circuit

May 9, 2018

Quinn R. Heath, Plaintiff-Appellant,
Indianapolis Fire Department, Defendant-Appellee.

          Argued February 21, 2018

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:15-cv-425-JMS-MJD - Jane E. Magnus-Stinson, Chief Judge.

          Before Ripple, Kanne, and Hamilton, Circuit Judges.


         In January 2015, Quinn Heath applied to become an Indianapolis firefighter. Over the next four months, he passed the Indianapolis Fire Department's written examination, oral interview, and Certified Physical Agility Test . Quinn's performance during the application process led to his placement on a ranked list for hiring consideration. The Department hired two academy classes in 2015 from that ranked list, but Quinn was not selected for either class.

         Meanwhile, Quinn's father-Rodney Heath-filed a qui tam suit under the False Claims Act against the Indianapolis Fire Department, alleging that the Department had made false statements of material fact to the federal government in order to receive federal grant funds. At the time, Rodney was a backup investigator in the Department's arson unit. The same day that Quinn found out he had not been selected for the second academy class, the Department's Deputy Chief told several Department employees they needed to be inter- viewed by the U.S. Department of Homeland Security in connection with Rodney's suit.

         Thereafter, Quinn joined his father's suit, alleging that the Department retaliated against him for his father's complaint, in violation of the False Claims Act. Quinn's retaliation claim alleges that he was not hired as an Indianapolis firefighter be- cause of his father's suit.

         The district court granted summary judgment to the Indianapolis Fire Department on Quinn's retaliation claim. Quinn now appeals that decision.

         We review the district court's grant of summary judgment de novo, viewing the record in the light most favorable to Quinn. Austin v. Walgreen Co., 885 F.3d 1085, 1087 (7th Cir. 2018). We may affirm summary judgment on any ground supported by the record as long as the issue was adequately raised below and the nonmoving party had an opportunity to contest it. See West Side Salvage, Inc. v. RSUI Indem. Co., 878 F.3d 219, 222 (7th Cir. 2017). For the reasons that follow, we affirm.

          I. Analysis

         The False Claims Act protects whistleblowers from retaliation, providing that "[a]ny employee … shall be entitled to all relief necessary to make that employee … whole, if that employee … is discharged, demoted, suspended, threatened, harassed, or … discriminated against in the terms and condition of employment because of lawful acts done by the employee … or associated others" in furtherance of a False Claims Act action. 31 U.S.C. § 3730(h)(1) (2010); see also § 3730(h)(2) (describing relief under (h)(1)).

         The district court's dismissal of Quinn's claim turned on its conclusion that the False Claims Act's anti-retaliation pro- visions do not cover job applicants or prospective employees. This court has not yet addressed that issue, and we decline to do so now. Even assuming that § 3730(h)'s definition of "employee" is broad enough to encompass job applicants or prospective employees, the Indianapolis Fire Department would still be entitled to summary judgment. Section 3730(h)(1) re- quires that Quinn show he was retaliated against because of his father's protected activity, and he cannot do so.

         Recent authority raises a question about what causation standard Quinn must meet to show that he was retaliated against because of his father's protected activity. In Fanslow v. Chicago Manufacturing Center, Inc., relying in part on Title VII principles, we noted that False Claims Act complainants can establish that they were retaliated against because of protected activity by demonstrating that the retaliation was motivated "at least in part" by the protected activity. 384 F. 3 d 469, 485 (7th Cir. 2004). Nearly ten years post-Fanslow, the Supreme Court held that Title VII retaliation claims require but-for causation, rather than the lesser mixed-motive standard of causation we described in Fanslow. Univ. of Te x . Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). We have not yet revisited Fanslow to extend Nassar's Title VII holding to § 3730(h)(1), though the similarity of the two provisions might give us reason to do so in a future case. See United States ex rel. King v. Solvay Pharm., Inc., 871 F.3d 318, 333 (5th Cir. 2017) (noting that the False Claims Act requires but-for causation). But the causation standard makes no difference here. Under any standard, there is no evidence-even when construing the facts in Quinn's favor-from which a jury could conclude that the Department did not hire Quinn because of his father's qui tam suit.

         Applicants to the Indianapolis Fire Department are placed on a ranked hiring list according to their scores on various merit-based metrics. Under a local ordinance governing the Department's hiring, eighty percent of an academy class is to be filled in rank order, starting with the top candidate on the list. Then, the fire chief can exercise his discretion to fill the remaining twenty percent of the class. The Department has also established selection criteria that guide the fire chief's discretionary picks, preferencing applicants with two or more of the following "markers": "racial minority, female gender, college degree, fire training or experience, and legacy" (meaning a family member is a current or former member of the Department). (Appellant's ...

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