The Eleventh Circuit upheld a lower court’s dismissal of a lawsuit claiming unlawful retaliation against a whistleblower for engaging in protected conduct. The lower court found that the plaintiff had shown he engaged in protected activity, but not that his activity was the sole factor motivating his termination. The plaintiff asked the circuit court to apply the more relaxed standard, but the court declined to read outside the plain text of the statutory language, in which it found the but-for language.
Plaintiff Jamie Nesbitt appealed a district court’s decision to dismiss his complaint of unlawful retaliation by his former employer, in relation to what he argued was protected activity.
Nesbitt worked as an emergency medical technician for Candler County’s ambulance service in 2006. During his employment, Nesbitt grew concerned about the way his supervisor instructed his to fill out trip reports after each ambulance ride, which document the condition of the patient and the medical necessity of the service. Medicare uses those reports when deciding whether to pay for the service.
Nesbitt alleged his supervisor instructed EMTs to falsify these documents. For example, Nesbitt explained that EMTs were asked to report that patients were unable to walk, even if that was not the case, so that Medicare would pay for more trips. After Nesbitt expressed concern about this instruction, his supervisor changed his schedule to reduce the number of on-call hours on Nesbitt’s days off, thereby reducing his opportunities for overtime pay.
The supervisor approved Nesbitt’s request to take a side job with a private ambulance company. However, the county prohibits EMTs from taking a second job without the approval of the ambulance service director. Nesbitt assumed the director knew about his outside employment, but provided no evidence that the director knew or approved of it. The county later fired Nesbitt, in part because Nesbitt’s supervisor complained that about his second job. When Nesbitt was terminated, he was told that his refusal to fill out trip reports in the manner instructed was also a contributing factor in his firing.
Nesbitt filed a qui tam case alleging the county falsified trip reports to increase its Medicare billings and fired him in retaliation for whistleblowing. The government intervened and settled with the County and Nesbitt. This resulted in the dismissal of the fraud claims, but not the retaliation complaint.
The district court concluded that Nesbitt had been engaged in protected conduct, but that he had not demonstrated that his conduct was the reason for his termination.
The appeals court explained that the case turned on the but-for causation standard, i.e. whether Nesbitt would not have been fired but for his protected activity. Nesbitt argued the court should instead use the motivating factor standard, which considers whether protected activity was among the causes—but not the sole cause—of retaliatory actions.
However, the court found that Congress clearly applied the but-for standard in the statutory language prohibiting whistleblower retaliation, and held that it was bound by that language.
The court examined decision from other circuits, in which the courts concluded that the motivating factor standard should apply, but the Eleventh Circuit panel found those decision erroneous, as they went outside the plain meaning of the statute’s text to consider language in the Senate report on the antiretaliation language. In that report, the text states that an employee must show that retaliation for protected conduct was a motivating factor, but need not show it was the only factor. However, the Eleventh Circuit declined to consider legislative history in deciding which standard should apply, and held strictly to the text of the statute.
