On November 13, 2023, in USA ex rel, Morgan-Lee, et al. v. The Whittier Health Network, LLC, et al., a Massachusetts federal district judge concluded that although the plaintiff engaged in protected activity when she raised suspicions about billing fraud under the False Claims Act, her termination was not retaliatory where she engaged in erratic, confrontational, and insubordinate communication exchanges with superiors and colleagues. Morgan-Lee is a positive development for employers because it reinforces that engaging in protected activity does not shield an employee from the consequences of insubordination and other company policy violations.
The plaintiff worked for Therapy Resources Management, LLC (“TRM”), as a Director of Clinical Services, responsible for identifying and reporting billing discrepancies. Notably, the plaintiff could make recommendations but the authority to implement resided solely with TRM’s executives.
In spring or summer 2011, TRM increased the plaintiff’s duties after the Center of Medicare and Medicaid Services rolled out its overhauled billing requirements and procedures set to take effect that fall. The plaintiff’s relations and interactions with her peers and superiors began to sour after the plaintiff raised concerns about TRM’s operations and documentation. In particular, the plaintiff conveyed her concerns “stridently” and took great offense when TRM did not implement her recommendations. Additionally, despite several emails from TRM’s president reminding her she lacked implementation authority, the plaintiff issued directives to TRM employees and insisted on their discipline for what she deemed “insufficient respons[es] to her recommendations.” The plaintiff grew increasingly incensed and felt undermined when TRM’s president attempted to mediate the plaintiff’s “increasingly strained” relations with her peers and superiors. The plaintiff then complained about her colleagues and her “work-related stress,” to which TRM’s president expressed genuine concern for her well-being and offered to help her find an alternative, less-stressful role.
By the fall of 2011, relations between the plaintiff and her superiors reached a tipping point after she angrily stormed out of a client meeting because “although [she] did not know precisely how the claim was being handled, she was certain that [the client’s] approach was fraudulent[.]” Upon leaving the client’s office, the plaintiff had a “contentious phone call” with TRM’s president.
Shortly after the plaintiff’s contentious phone call, she abruptly took time off with little notice. TRM then engaged employment counsel and emailed the plaintiff to address her unexcused absences, to offer formal leave, and to help resolve any issues with the plaintiff’s supervisor and colleagues. In response, the plaintiff invoked whistleblower protections and accused the company of retaliation and harassment. TRM then allowed the plaintiff to take a formal leave of absence.
When TRM sought to address the plaintiff’s allegations, she refused to provide any specifics of misconduct or otherwise cooperate with TRM’s investigation. Accordingly, TRM extended the plaintiff’s leave through Thanksgiving and terminated her employment in December 2011.
In 2013, the plaintiff sued, alleging unlawful retaliation under the False Claims Act and the Rhode Island Whistleblower Protection Act.
Judge Woodlock concluded that, although the plaintiff had engaged in protected activity under the False Claims Act, her termination was not retaliatory. First, Judge Woodlock found that the six-month period between the plaintiff’s “explicit and specific reports of misconduct in the spring of 2011” and her termination in December “undercut her contention that her discharge was actually in retaliation for whistleblowing about problematic billing practices.” Judge Woodlock also concluded that TRM’s attempts to accommodate the plaintiff despite her lack of professionalism, insubordination, and unexcused absences “suggest[ed] that the company was more interested in retaining her as a productive employee in some capacity than in firing her.”
Second, Judge Woodlock found that the plaintiff’s own insubordination justified her termination. Specifically, the Judge reasoned: “the breakdown of [the plaintiff’s] employment relationship was the culmination of an escalating pattern of erratic, confrontational and frequently insubordinate communications by [the plaintiff] with superiors and colleagues, rather than the product of any retaliatory animus on the part of TRM.” While the plaintiff’s insubordination alone sufficiently justified her termination, Judge Woodlock found that she “was discharged because of a spate of unapproved absences and an outright refusal to provide specifics about purported fraudulent activity, even though that was her job.” In doing so, Judge Woodlock relied heavily on contemporaneous email exchanges that often undercut the plaintiff’s credibility.
Morgan-Lee is a favorable decision for employers as it reinforces that engaging in protected activity does not shield an employee from the consequences arising from acts of insubordination and violations of other company policies. Morgan-Lee also underscores the importance of documenting all behaviors and incidents underlying employee discipline. Of course, every whistleblower case is fact-specific, and the outcome can vary depending on the applicable statutory scheme and jurisdiction, so employers should proceed with caution and consult employment counsel before subjecting a whistleblower to an adverse employment action.
- Member of the Firm