Quinn R. Heath, Plaintiff-Appellant,
Indianapolis Fire Department, Defendant-Appellee.
February 21, 2018
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.
Ripple, Kanne, and Hamilton, Circuit Judges.
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.
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.
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.
district court granted summary judgment to the Indianapolis
Fire Department on Quinn's retaliation claim. Quinn now
appeals that decision.
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.
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
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.
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.
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 ...