Case 2:19-cv-00028-DAO Document 91 Filed 03/29/21 PageID.1565 Page 1 of 41
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`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
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`REBEKAH GATTI,
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`Plaintiff,
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`v.
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`GRANGER MEDICAL CLINIC, P.C.,
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`Defendant.
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`
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`MEMORANDUM DECISION AND
`ORDER GRANTING IN PART AND
`DENYING IN PART PLAINTIFF’S
`MOTION FOR SUMMARY
`JUDGMENT (DOC. NO. 57) AND
`GRANTING DEFENDANT’S MOTION
`FOR SUMMARY JUDGMENT (DOC.
`NO. 60)
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`Case No. 2:19-cv-00028-DAO
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`Magistrate Judge Daphne A. Oberg
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`Plaintiff Rebekah Gatti brought this action against her former employer, Defendant
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`Granger Medical Clinic, P.C. (“Granger”), asserting a claim for retaliation under the False
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`Claims Act, 31 U.S.C. §§ 3729–3733. (Compl. ¶¶ 17–24, Doc. No. 1.) Ms. Gatti alleges she
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`was unlawfully terminated in retaliation for reporting fraudulent billing practices and threatening
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`to file a qui tam action against Granger. (Id. ¶ 19.) Granger filed counterclaims against Ms.
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`Gatti for breach of contract, breach of the implied covenant of good faith and fair dealing, breach
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`of fiduciary duty, violation of Utah’s Uniform Trade Secrets Act, Utah Code Ann. § 13-24-1, et
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`seq., and injunctive relief. (Am. Answer and Countercl. ¶¶ 26–64, Doc. No. 49.)
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`Before the court are Ms. Gatti’s motion for summary judgment on Granger’s
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`counterclaims (“Gatti MSJ,” Doc. No. 57) and Granger’s motion for summary judgment on Ms.
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`Gatti’s retaliation claim (“Granger MSJ,” Doc. No. 60). The court held a hearing on these
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`motions on September 28, 2020. (Doc. No. 90.)
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`1
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` FILED
`2021 MAR 29 AM 10:30
` CLERK
`U.S. DISTRICT COURT
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`Case 2:19-cv-00028-DAO Document 91 Filed 03/29/21 PageID.1566 Page 2 of 41
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`Having considered the parties’ briefing and arguments at the hearing, the court1
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`GRANTS Granger’s motion for summary judgment (Doc. No. 60) and enters summary judgment
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`in favor of Granger on Ms. Gatti’s claim of retaliation under the False Claims Act. The court
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`GRANTS IN PART AND DENIES IN PART Ms. Gatti’s motion for summary judgment on
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`Granger’s counterclaims (Doc. No. 57). The court GRANTS the motion and enters summary
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`judgment in favor of Ms. Gatti on Granger’s counterclaims of breach of contract, breach of the
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`implied covenant of good faith and fair dealing, and breach of fiduciary duty, and on its
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`counterclaim for damages under Utah’s Uniform Trade Secrets Act. The court DENIES the
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`motion with respect to Granger’s claim for injunctive relief under Utah’s Uniform Trade Secrets
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`Act.
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`SUMMARY JUDGMENT STANDARD
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`Courts grant summary judgment only where “the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
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`R. Civ. P. 56(a). “A fact is ‘material’ if, under the governing law, it could have an effect on the
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`outcome of the lawsuit. A dispute over a material fact is ‘genuine’ if a rational jury could find in
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`favor of the nonmoving party on the evidence presented.” Tabor v. Hilti, Inc., 703 F.3d 1206,
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`1215 (10th Cir. 2013) (internal quotation marks omitted). In evaluating a motion for summary
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`judgment, the court views “the facts in the light most favorable to the nonmovant and draw[s] all
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`reasonable inferences in the nonmovant’s favor.” Jones v. Norton, 809 F.3d 564, 573 (10th Cir.
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`2015). But, “where the non moving party will bear the burden of proof at trial on a dispositive
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`issue that party must go beyond the pleadings and designate specific facts so as to make a
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`1 The parties consent to proceed before a magistrate judge in accordance with 28 U.S.C. § 636(c)
`and Federal Rule of Civil Procedure 73. (Doc. No. 27.)
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`2
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`showing sufficient to establish the existence of an element essential to that party’s case in order
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`to survive summary judgment.” McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th
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`Cir. 1998) (internal quotation marks omitted).
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`DISCUSSION
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`I.
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`GRANGER’S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 60)
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`Granger moves for summary judgment on Ms. Gatti’s claim of retaliation under the False
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`Claims Act, arguing Ms. Gatti cannot present evidence sufficient to create a triable issue of fact
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`as to this claim. (Granger MSJ 2–3, Doc. No. 60.)
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`A. Relevant Facts
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`Ms. Gatti began full time employment with Granger as a coding auditor on December 3,
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`2014. (Granger MSJ, Undisputed Material Facts (“Facts”) ¶ 1, Doc. No. 60; Ex. A to Granger
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`MSJ, Dep. of Rebekah Gatti (“Gatti Dep.”) 46:1–4, 46:14–16, Doc. No. 64-1.) As a coding
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`auditor, Ms. Gatti was responsible for review, analysis, and improvement of medical billing
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`codes entered by Granger medical providers. (Granger MSJ, Facts ¶ 2, Doc. No. 60; Gatti Dep.
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`46: 21–47:25, Doc. No. 64-1.)
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`In February 2015, Ms. Gatti was promoted to coding manager. (Gatti Dep. 58:15–20,
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`Doc. No. 64-1.) As coding manager, in addition to her prior duties, she was also responsible for
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`supervising the coding team, identifying and correcting coding errors, educating the coding team
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`and medical providers, and ensuring Granger submitted the right codes to insurance companies,
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`Medicare, and Medicaid. (Gatti Dep. 58:24–59:10, 62:9–20, 65:11–17, Doc. No. 64-1; Ex. B to
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`Granger MSJ, Dep. of David Tanner (“Tanner Dep.”) 225:2–16, Doc. No. 64-2.)
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`3
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`Ms. Gatti’s Report Regarding Dr. Vogeler’s Billing
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`In late 2016, Granger purchased the family medicine practice of Dr. Douglas Vogeler.
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`(Pl.’s Resp. and Mem. in Opp’n to Def.’s Mot. for Summ. J. (Sealed) (“Opp’n to Granger MSJ”),
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`Statement of Additional Material Facts (“Add’l Facts”) ¶ 1, Doc. No. 75; App. to Opp’n to
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`Granger MSJ, Decl. of Rebekah Gatti (“Gatti Decl.”) ¶ 5, Doc. No. 75-1 at 5.) Ms. Gatti quickly
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`came to believe Dr. Vogeler and his staff were committing Medicare fraud by overcoding patient
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`encounters and performing unnecessary procedures. (Opp’n to Granger MSJ, Add’l Facts ¶ 1,
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`Doc. No. 75; Gatti Decl. ¶ 5, Doc. No. 75-1 at 5.) Ms. Gatti attempted, on many occasions, to
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`raise her concerns directly with Dr. Vogeler and his medical assistant, Whitney Miller. (Opp’n
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`to Granger MSJ, Add’l Facts ¶ 2, Doc. No. 75; Gatti Decl. ¶ 6, Doc. No. 75-1 at 5–6.) Her
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`attempts included various training and counseling sessions between October 2016 and March
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`2017. (Opp’n to Granger MSJ, Add’l Facts ¶ 2, Doc. No. 75; Gatti Decl. ¶ 6, Doc. No. 75-1 at
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`5–6.)
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`According to Ms. Gatti, these training and counseling sessions did not stop Dr. Vogeler’s
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`overbilling. (Gatti Decl. ¶ 7, Doc. No. 75-1 at 6.) On May 17, 2017, Ms. Gatti raised the issue
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`in an email to her supervisor, Granger Chief Financial Officer Jeff Davis, reporting the following
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`“[c]ompliance concerns regarding Dr. Vogeler’s billing”:
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`1. Billing levels of service higher than what the documentation supports (using
`CMS coding guidelines). If the provider is using time as a factor (counseling
`and coordination of care criteria), he is not noting time in the record.
`2. Billing an additional level of service with a preventive visit to Select Health
`when the documentation doesn’t support their criteria for a separately
`identifiable E/M.
`3. Billing preventive services when the documentation doesn’t support that
`preventive services were rendered, in particular the necessary elements for
`Annual Wellness Visits. (Medicare)
`4. Billing for the IPPE (Welcome to Medicare) without documentation of the
`necessary elements for this service.
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`5. Billing Medicare for routine EKG’s without the note indicating medical
`necessity.
`6. Billing Medicare for non-covered services (e.g. Tdap)
`7. Billing for procedures without corresponding procedure note.
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`(Id.; App. to Opp’n to Granger MSJ, Email from Rebekah Gatti to Jeff Davis (May 17, 2017),
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`Doc. No. 75-1 at 38.)
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`Granger’s Response to Ms. Gatti’s Report
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`Meanwhile, in the spring of 2017, Dr. Vogeler began attempting to have Ms. Gatti
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`removed from reviewing his coding and billing. (Opp’n to Granger MSJ, Add’l Facts ¶ 3, Doc.
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`No. 75.) On April 18, Dr. Vogeler emailed Granger’s then-Chief Executive Officer David
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`Tanner to complain that Ms. Gatti “continues to write off a lot of things at first rejection instead
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`of resubmitting.” (Opp’n to Granger MSJ, Add’l Facts ¶ 3, Doc. No. 75; App. to Opp’n to
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`Granger MSJ, Email from Douglas Vogeler to David Tanner (Apr. 18, 2017), Doc. No. 75-1 at
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`35.) On May 2, he again emailed Mr. Tanner to complain:
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`Billing is getting worse and so many mistakes are being made, written off,
`downcoded or passed on to pat[i]ents despite us resubmitting corrections to
`Rebekah . . . . She is costing me thousands and is holding up billings. I will no
`longer put up with Rebekah’s obstructions, so give me someone else who is on the
`side of the doctor and not the insurance company.
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`(Opp’n to Granger MSJ, Add’l Facts ¶ 3, Doc. No. 75; App. to Opp’n to Granger MSJ, Email
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`from Douglas Vogeler to David Tanner (May 2, 2017), Doc. No. 75-1 at 37.)
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`On June 19, 2017, Ms. Gatti received an e-mail from her supervisor, Jeff Davis, stating:
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`“Still working on a plan for this . . . but for now—stop working on Vogeler or Moore claims.”
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`(App. to Opp’n to Granger MSJ, Email from Jeff Davis to Rebekah Gatti (June 19, 2017), Doc.
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`No. 75-1 at 40.) According to Ms. Gatti, after she received this email, she had no further
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`interaction with Dr. Vogeler or his staff, which prevented her from performing her job duties
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`5
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`with respect to Dr. Vogeler.2 (Opp’n to Granger MSJ, Add’l Facts ¶ 6, Doc. No. 75; Gatti Decl.
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`¶ 8, Doc. No. 75-1 at 6.) She performed no further training or counseling sessions with Dr.
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`Vogeler or his staff. (Gatti Decl. ¶ 8, Doc. No. 75-1 at 6.) Other members of the coding team
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`were assigned to review prospective claims coded by Dr. Vogeler (claims not yet paid), and
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`although Ms. Gatti assisted them with questions, she was not allowed to make any corrections to
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`those claims.3 (Id. ¶ 9, Doc. No. 75-1 at 6–7.) Instead, she only reviewed Dr. Vogeler’s codings
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`specifically assigned to her by Jeff Davis, which consisted of an audit of retrospective claims
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`(claims which had already been paid). (Id.)
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`In the summer of 2017, Granger responded to the issues Ms. Gatti raised by launching an
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`investigation into Dr. Vogeler’s coding and billing practices. (Tanner Dep. 18:23–19:3, 21:5–11,
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`71:8–25, Doc. No. 64-2.) This included performing an internal review of Dr. Vogeler’s coding
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`practices; holding executive meetings and discussions regarding his practices; meeting with Dr.
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`Vogeler and his staff; and retaining outside auditors to review Dr. Vogeler’s coding practices.
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`(Ex. C to Granger MSJ, Decl. of Mary Jane Pennington (“Pennington Decl.”) ¶ 11, Doc. No. 60-
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`4; Tanner Dep. 21:5–11, 54:5–10, 55:16–24, 73:19–21, 83:1–20, Doc. No. 64-2; Ex. D to
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`Granger MSJ, Dep. of Jeff Davis (“Davis Dep.”) 46:4–47:16, Doc. No. 64-3.) Ms. Gatti does not
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`dispute these actions were taken, but asserts she was excluded from the meetings regarding Dr.
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`2 As Granger notes, Ms. Gatti had subsequent email communication with Dr. Vogeler’s medical
`assistant, Ms. Miller, on at least one occasion in August 2017, as described below. (See App. to
`Opp’n to Granger MSJ, Email chain dated August 2 to August 15, 2017, Doc. No. 75-1 at 65–
`69.)
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`3 Granger asserts Ms. Gatti herself appointed subordinates to review Dr. Vogeler’s claims,
`supervised their work, and had authority to review and edit these claims. (Granger MSJ, Facts
`¶¶ 13–15, Doc. No. 60.) For purposes of Granger’s motion, the court resolves this factual
`dispute in favor of Ms. Gatti as the nonmoving party.
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`6
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`Vogeler’s billing practices and was unaware they were being held. (Gatti Decl. ¶ 10, Doc. No.
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`75-1 at 7.) According to Granger, it ultimately required Dr. Vogeler and his staff to conform
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`with Ms. Gatti’s recommendations and to meet with Ms. Gatti’s department in order to review
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`and improve his coding and billing practices moving forward. (Pennington Decl. ¶ 11, Doc. No.
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`60-4.) Ms. Gatti, on the other hand, asserts Granger failed to re-submit Dr. Vogeler’s overbilled
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`claims with corrected codes or to repay Medicare, Medicaid, or private insurers for those claims,
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`as she had recommended. (Gatti Decl. ¶ 12, Doc. No. 75-1 at 8.)
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`Ms. Gatti’s Emails to Granger’s Human Resources Director and COO
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`On July 17, 2017, Ms. Gatti forwarded her May 17 email listing her concerns regarding
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`Dr. Vogeler’s billing practices to Katie Jolles, the human resources director. (App. to Opp’n to
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`Granger MSJ, Email from Rebekah Gatti to Katie Jolles (July 17, 2017), Doc. No. 75-1 at 38.)
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`In August 2017, Ms. Gatti exchanged emails with Dr. Vogeler’s medical assistant
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`Whitney Miller and others regarding a billing issue, during which Ms. Miller expressed that Ms.
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`Gatti was not supposed to be reviewing Dr. Vogeler’s billing. (App. to Opp’n to Granger MSJ,
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`Email from Whitney Miller to Merilyn Harris, copying Rebekah Gatti (Aug. 14, 2017), Doc. No.
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`75-1 at 67; see also App. to Opp’n to Granger MSJ, Email chain dated August 2 to August 15,
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`2017, Doc. No. 75-1 at 65–69.) On August 16, 2017, Ms. Gatti forwarded the email chain to her
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`supervisor, Mr. Davis, and the human resources director, Ms. Jolles, expressing frustration that a
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`medical assistant “is telling me which functions of my job (coding MANAGER) I am allowed to
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`perform.” (App. to Opp’n to Granger MSJ, Email from Rebeka Gatti to Jeff Davis and Katie
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`Jolles (Aug. 16, 2017), Doc. No. 75-1 at 65.) She stated: “I am tired of the bullying, and not
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`being allowed to perform the duties for ALL of the Granger providers. I don’t plan on going
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`anywhere because I love this job, but I want to file a complaint. Please let me know how to go
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`about this.” (Id.; see also Gatti Decl. ¶ 11, Doc. No. 75-1 at 7–8.)
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`On January 5, 2018, having received no response from Ms. Jolles to her August 16 email
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`requesting to file a formal complaint, Ms. Gatti forwarded that email and the prior email chain to
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`Granger’s Chief Operating Officer, Claire Chitwood. (App. to Opp’n to Granger MSJ, Email
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`from Rebekah Gatti to Claire Chitwood (Jan. 5, 2018), Doc. No. 75-1 at 65.) Ms. Gatti stated,
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`“Here is [the] email where I asked the process for filing a complaint. I never received a
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`response.” (Id.)
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`On February 2, 2018, Ms. Gatti’s supervisor, Jeff Davis, resigned from Granger. (Opp’n
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`to Granger MSJ, Add’l Facts ¶ 16, Doc. No. 75.) During his deposition, Mr. Davis testified that
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`Ms. Gatti had mentioned “multiple” times, “starting probably in July” that she could file a qui
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`tam lawsuit against Granger related to Dr. Vogeler. (App. to Opp’n to Granger MSJ, Davis Dep.
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`58:7–59:21, Doc. No. 75-1 at 174.) Mr. Davis said that on his last day at Granger, during his
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`exit interview, he told Chief Executive Officer David Tanner that he believed Ms. Gatti might
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`file “some sort of a lawsuit.” (Id. at 60:17–61:1, 62:6–10, Doc. No. 75-1 at 174–75.) He told
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`Mr. Tanner, “I feel that there’s risk here with her because . . . she’s stubborn enough that she
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`kind of feels like she might just give someone the finger and do something to prove a point or
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`inflict harm rather than trying to help us fix something. . . . There’s just risk there and so we need
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`to be gentle with her.” (Id. at 61:13–20, Doc. No. 75-1 at 174.) David Tanner testified that Mr.
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`Davis told him during the exit interview that Ms. Gatti had “threatened a qui tam claim,” and he
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`said this was the first time he had heard of the possibility of Ms. Gatti filing a qui tam complaint
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`against Granger. (App. to Opp’n to Granger MSJ, Tanner Dep. 136:10–11, 137:3–8, Doc. No.
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`75-1 at 134.)
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`Restructuring and Termination
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`In March of 2018, Granger decided to change its reporting structure to have the coding
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`department begin reporting to the revenue cycle department. (Granger MSJ, Facts ¶ 21, Doc.
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`No. 60; Pennington Decl. ¶ 14, Doc. No. 60-4.) On March 23, 2018, CEO David Tanner met
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`with Ms. Gatti and told her she would begin reporting to Tangie Williams, the head of the
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`revenue cycle department. (Gatti Decl. ¶ 13, Doc. No. 75-1 at 8.) Ms. Gatti told Mr. Tanner she
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`did not want to report to Ms. Williams, and he told Ms. Gatti that he would accept her
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`resignation. (Id.) Ms. Gatti said she had no intention of resigning. (Id.) Mr. Tanner then
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`emailed Ms. Gatti explaining that Granger was restructuring, and the coding department would
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`“report to revenue cycle rather than continu[ing] to operate in an independent man[ner].” (Ex. G
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`to Granger MSJ, Email from David Tanner to Rebekah Gatti and Tangie Williams (Mar. 23,
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`2018), Doc. No. 60-8 at 2.) Ms. Gatti responded that she was “unwilling to comply.” (Ex. G to
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`Granger MSJ, Email from Rebekah Gatti to David Tanner (Mar. 23, 2018), Doc. No. 60-8 at 2.)
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`The next day, on March 24, she sent a follow-up email stating “[t]he timing of this . . . is not lost
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`on the qui tam attorney,” and that she would “continue working in the same capacity as I did last
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`week until you opt to terminate me.”4 (Ex. G to Granger MSJ, Email from Rebekah Gatti to
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`David Tanner (Mar. 24, 2018), Doc. No. 60-8 at 10.)
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`On March 25, Mr. Tanner sent Ms. Gatti a long email, describing his surprise at her
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`mention of a qui tam attorney, reminding Ms. Gatti that she has been responsible for oversight of
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`all of Granger’s medical coding, explaining the actions taken in response to her concerns about
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`4 It is undisputed Ms. Gatti had not actually contacted or hired a qui tam attorney at the time she
`made this statement. (Granger MSJ, Facts ¶ 28, Doc. No. 60; Opp’n to Granger MSJ, Resp. to
`Statement of Undisputed Material Facts ¶ 28, Doc. No. 75.)
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`Dr. Vogeler’s coding, and asking her if there was anything Granger had “not done to follow [her]
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`recommendations regarding Dr. Vogeler.” (Ex. G to Granger MSJ, Email from David Tanner to
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`Rebekah Gatti (Mar. 25, 2018), Doc. No. 60-8 at 9–10.) After another email from Mr. Tanner
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`asking for a response, Ms. Gatti responded, “I don’t have any further information to provide.
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`There is nothing that I have not previously disclosed.” (Ex. G to Granger MSJ, Email from
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`Rebekah Gatti to David Tanner (Mar. 27, 2018, 11:28 a.m.), Doc. No. 60-8 at 8.) In a follow-up
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`email, Mr. Tanner again asked whether there was “anything with Granger’s coding activity that
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`does not follow rules and guidelines or has not been corrected as of today.” (Ex. G to Granger
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`MSJ, Email from David Tanner to Rebekah Gatti (Mar. 27, 2018, 11:45 a.m.), Doc. No. 60-8 at
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`8.) Ms. Gatti responded: “I made observations, suggestions as to how compliance could be
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`achieved and in what time frame, but as to what has been accomplished, I don’t know.” (Ex. G
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`to Granger MSJ, Email from Rebekah Gatti to David Tanner (Mar. 27, 2018, 11:59 a.m.), Doc.
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`No. 60-8 at 8.)
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`On March 28, Mr. Tanner told Ms. Gatti she would continue to report to him. (Gatti
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`Decl. ¶ 13, Doc. No. 75-1 at 8.) Ms. Gatti did so until April 17, 2018, when she was told she
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`was being terminated. (Id.) The termination letter she received on April 18 stated, “Due to a
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`reorganization your position has been eliminated, effective immediately.” (Ex. I to Granger
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`MSJ, Letter from David Tanner to Rebekah Gatti (Apr. 18, 2018) (“Termination Letter”), Doc.
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`No. 60-10.)
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`According to Granger, it decided to restructure to address a systemic problem of
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`dysfunction between coders and claims representatives which resulted in some claims not being
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`processed, and the change was recommended by a third-party auditor. (Granger MSJ, Facts
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`¶¶ 21, 23, Doc. No. 60; Tanner Dep. 142:14–145:10, Doc. No. 64-2; Pennington Decl., ¶ 14,
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`Doc. No. 60-4.) However, Ms. Gatti disputes that elimination of her position was part of the
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`planned restructuring. (Opp’n to Granger MSJ, Resp. to Statement of Undisputed Material Facts
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`¶ 21, Doc. No. 75.) The third-party auditor’s report does not include a recommendation to
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`eliminate the coding manager position. (See App. to Opp’n to Granger MSJ, Curas Report, Doc.
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`No. 75-1 at 70–114.) And Mr. Tanner testified that he decided to “eliminate the position” only
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`“a day or two” before Ms. Gatti’s termination letter. (Tanner Dep. 174:20–175:3, Doc. No. 75-1
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`at 140.)
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`Mr. Tanner testified that Ms. Gatti was fired due to a reorganization, but that
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`insubordination was “a contributing factor.” (Tanner. Dep. 125:5–126:2, Doc. No. 75-1 at 131–
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`32.) He explained that without her insubordination, she would have remained at Granger “with
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`the same title and the same salary, but a different reporting relationship.” (Tanner Dep. 126:3–6,
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`Doc. No. 75-1 at 132.) However, he acknowledged that insubordination was not the reason for
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`termination listed on her termination letter. (Tanner Dep. 127:18-20, Doc. No. 75-1 at 132.)
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`B. Applicable Law
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`The False Claims Act (FCA) imposes liability on any person who “knowingly
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`presents . . . a false or fraudulent claim for payment or approval” to the United States
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`government, 31 U.S.C. § 3729(a)(1)(A), or “knowingly makes, uses, or causes to be made or
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`used, a false record or statement material to a false or fraudulent claim,” id. § 3729(a)(1)(B).
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`The FCA authorizes individuals to bring qui tam suits on behalf of the government and to keep a
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`percentage of any monies recovered. See id. § 3730(b)–(d).
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`“[B]ecause insiders might be reluctant to use these qui tam provisions due to fear of
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`employer backlash, the False Claims Act protects whistleblowers from employer retaliation.”
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`United States ex rel. Reed v. Keypoint Gov’t Sols., 923 F.3d 729, 738 (10th Cir. 2019). “To
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`qualify for whistleblower protection, an employee must engage in ‘protected activity.’” Id. The
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`FCA’s anti-relation provision imposes liability on an employer if an employee is “discriminated
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`against in the terms and conditions of employment because of lawful acts done by the
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`employee . . . in furtherance of an action under this section or other efforts to stop 1 or more
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`violations of [the FCA].” 31 U.S.C. § 3730(h)(1); see also Armstrong v. Arcanum Grp., Inc.,
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`897 F.3d 1283, 1286 (10th Cir. 2018). “Such lawful acts are commonly referred to as ‘protected
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`activity.’” Armstrong, 897 F.3d at 1286.
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`Courts have applied the familiar burden-shifting framework of McDonnell Douglas Corp.
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`v. Green, 411 U.S. 792, 802–03 (1973), to retaliation claims under the FCA. See, e.g., United
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`States ex rel. King v. Solvay Pharms., Inc., 871 F.3d 318, 332 (5th Cir. 2017); Harrington v.
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`Aggregate Indus.-Ne. Region Inc., 668 F.3d 25, 31 (1st Cir. 2012); Armstrong v. Arcanum Grp.
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`Inc., No. 16-CV-1015-MSK-CBS, 2017 U.S. Dist. LEXIS 156346, at *7–8 (D. Colo. Sept. 25,
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`2017) (unpublished), aff’d, Armstrong, 897 F.3d 1283. Under this framework, a plaintiff must
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`establish a prima facie case of retaliation by presenting evidence that “(1) the plaintiff was
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`engaged in conduct protected by the FCA; (2) the plaintiff’s employer knew about such protected
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`activity and took an adverse action against the employee; and (3) the plaintiff’s protected activity
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`was the but-for cause of the adverse action.” Armstrong, 2017 U.S. Dist. LEXIS 156346, at *7.
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`If the plaintiff succeeds in establishing a prima facie case, the defendant must then articulate a
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`legitimate, nonretaliatory reason for taking adverse action against the plaintiff. See id. at *8.
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`The plaintiff must then produce evidence sufficient for a reasonable factfinder to find the
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`explanation to be pretext for retaliation. See id.
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`Case 2:19-cv-00028-DAO Document 91 Filed 03/29/21 PageID.1577 Page 13 of 41
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`C. Analysis
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`Granger argues Ms. Gatti cannot establish a prima facie case because she does not have
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`sufficient evidence to show she engaged in protected activity, that Granger knew of such
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`protected activity, or that she was terminated because of such activity. (Granger MSJ 11, Doc.
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`No. 60.) Granger also asserts Ms. Gatti was terminated due to restructuring, and argues Ms.
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`Gatti cannot show evidence of pretext. (Id. at 23–27.)
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`1. Protected Activity and Notice
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`Granger argues Ms. Gatti was not engaged in protected activity when she reported issues
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`with Dr. Vogeler’s coding practices, and Granger was not on notice of such activity, because this
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`reporting was part of her job as coding manager. (Granger MSJ 14–15, Doc. No. 60.) Granger
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`also contends Ms. Gatti’s mention of a qui tam attorney to the CEO in March of 2018 was not
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`protected activity, but merely a threat to avoid her employer’s legitimate instruction to report to a
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`different supervisor. (Id.at 15–16; Def.’s Reply Mem. in Support of Its Mot. for Summ. J. as to
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`Pl.’s Compl. (“Reply to Granger MSJ”) 2, Doc. No. 84.) Ms. Gatti argues she engaged in
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`protected activity sufficient to put Granger on notice because (1) she was not a compliance
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`officer and her reports went beyond typical compliance duties, (2) she was prevented from
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`performing her duties with respect to Dr. Vogeler, (3) she went outside the chain of command to
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`report her concerns, and (4) she expressly threatened to file a qui tam lawsuit. (Opp’n to
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`Granger MSJ 17–23, Doc. No. 75.)
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`“[C]ompliance employees typically must do more than other employees to show that their
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`employer knew of the protected activity.” Reed, 923 F.3d at 767. This is because “an employer
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`might reasonably presume that when a compliance employee reports incidents of fraud she is just
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`doing her job.” Id. Likewise, the FCA “generally does not protect activities that are within the
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`Case 2:19-cv-00028-DAO Document 91 Filed 03/29/21 PageID.1578 Page 14 of 41
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`scope of an employee’s job responsibilities.” Adler v. Continental Ins. Co., No. 95-2282-EEO,
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`1996 U.S. Dist. LEXIS 17500, at *11 (D. Kan. Nov. 1, 1996) (unpublished).
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`In Reed, the Tenth Circuit addressed a compliance employee’s argument that her
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`employer was on notice of protected activity because she went outside her normal chain of
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`command to report fraudulent conduct. 923 F.3d at 769 (considering whether a complaint stated
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`a claim for retaliation under the FCA). The court noted it had “never expressly held that a
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`compliance employee may put her employer on notice of her efforts to stop False Claims Act
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`violations by reporting fraud internally but outside her chain of command,” but recognized other
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`circuits had so held. Id. (citing United States ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890,
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`908 (9th Cir. 2017); United States ex rel. Schweizer v. Oce N.V., 677 F.3d 1228, 1239–40 (D.C.
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`Cir. 2012)). The Reed court declined to decide whether to adopt such a rule because it concluded
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`the employee failed to sufficiently allege she made reports outside her chain of command. Id. at
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`770–71. Although she alleged she reported the fraud to “everyone . . . who would listen,” id. at
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`767, she “never pleaded facts delineating her specific job description or defining the scope of her
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`duties such that [the court] could discern with some specificity the contours of [her] chain of
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`command or ordinary reporting structure related to fraud matters,” id. at 770. The Reed court
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`contrasted this scenario with the facts of Schweizer, where the plaintiff repeatedly disobeyed her
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`supervisor’s orders to stop investigating the alleged fraud, went over her supervisor’s head by
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`reporting allegations of specific FCA violations to her supervisor’s boss, and was subsequently
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`fired for ignoring the chain of command. Id. at 771; see also Schweizer, 677 F.3d at 1239–40.
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`Notice may also be provided “by expressly stating an intention to bring a qui tam suit,” or
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`“by any action which a factfinder reasonably could conclude would put the employer on notice
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`that litigation is a reasonable possibility.” Eberhardt v. Integrated Design & Constr., Inc., 167
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`Case 2:19-cv-00028-DAO Document 91 Filed 03/29/21 PageID.1579 Page 15 of 41
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`F.3d 861, 868 (4th Cir. 1999). “These types of actions are sufficient because they let the
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`employer know, regardless of whether the employee’s job duties include investigating potential
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`fraud, that litigation is a reasonable possibility.” Id.; see also McBride v. Peak Wellness Ctr.,
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`Inc., 688 F.3d 698, 704 (10th Cir. 2012) (“Whistleblowers must make clear their intentions of
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`bringing or assisting in an FCA action in order to overcome the presumption that they are merely
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`acting in accordance with their employment obligations.” (internal quotation marks omitted)).
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`However, whistleblower provisions are not “intended to be used by employees to shield
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`themselves from the consequences of their own misconduct or failures.” Trimmer v. United
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`States Dep’t of Labor, 174 F.3d 1098, 1104 (10th Cir. 1999). Moreover, mere insubordination is
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`not a protected activity. See Kahn v. United States Sec’y of Labor, 64 F.3d 271, 279 (7th Cir.
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`1995) (rejecting the plaintiff’s “attempt to hide behind his protected activity as a means to evade
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`termination for non-discriminatory reasons,” including insubordination); Florida Steel Corp. v.
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`Nat’l Labor Relations Bd., 529 F.2d 1225, 1234 (5th Cir. 1976) (noting that statutory protections
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`against discriminatory discharge were “not a sword with which one may threaten or curse
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`supervisors,” and insubordination was not a protected activity).
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`As an initial matter, Ms. Gatti argues she was not a “compliance officer” because a
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`different employee, Mary Jane Pennington, held that title, and because Ms. Gatti was not
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`specifically tasked with investigating or reporting instances of alleged fraud. (Opp’n to Granger
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`MSJ 26, Doc. No. 75.) Nevertheless, it is undisputed that Ms. Gatti’s duties as coding manager
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`included identifying and correcting coding errors, educating the coding team and medical
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`providers, and ensuring Granger submitted the right codes to insurance companies, Medicare,
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`and Medicaid. (Gatti Dep. 58:24–59:10, 62:9–20, 65:11–17, Doc. No. 64-1; Tanner Dep. 225:2–
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`Case 2:19-cv-00028-DAO Document 91 Filed 03/29/21 PageID.1580 Page 16 of 41
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`16, Doc. No. 64-2.) Thus, the question is whether Ms. Gatti took actions beyond her normal job
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`duties sufficient to put Granger on notice of protected activity under the FCA.
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`Ms. Gatti presented evidence that:
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`• she reported a list of specific “compliance concerns” regarding Dr. Vogeler’s
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`coding and billing practices to her supervisor, Jeff Davis, on May 17, 2017, (App.
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`to Opp’n to Granger MSJ, Email from Rebekah Gatti to Jeff Davis (May 17,
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`2017), Doc. No. 75-1 at 38);
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`• Ms. Davis instructed her to stop working on Dr. Vogeler’s claims on June 19,
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`2017, (App. to Opp’n to Granger MSJ, Email from Jeff Davis to Rebekah Gatti
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`(June 19, 2017), Doc. No. 75-1 at 40);
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`• after June 19, 2017, she was not allowed to make corrections to Dr. Vogeler’s
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`claims and performed no further training with Dr. Vogeler or his staff, (Gatti
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`Decl. ¶¶ 8–9, Doc. No. 75-1 at 6–7);
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`• she forwarded her May 17 email regarding compliance concerns to the human
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`resources director on July 17, 2017, (App. to Opp’n to Granger MSJ, Email from
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`Rebekah Gatti to Katie Jolles (July 17, 2017), Doc. No. 75-1 at 38);
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`• she emailed the human resources director again on August 16, 2017, stating she
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`was not being allowed to do her job with respect to Dr. Vogeler and requesting to
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`file a complaint, (App. to Opp’n to Granger MSJ, Email from Reb