United States of America, ex rel. Stephanie Strubbe, et al. v. Crawford County Memorial Hospital and Bill Bruce

Stephanie A. Strubbe, Carmen Trader, and Richard Christie sued Crawford

County Memorial Hospital (CCMH) as relators in a qui tam action for violations of

the False Claims Act. 31 U.S.C. § 3729(a). They also sued CCMH and its Chief

Executive Officer, Bill Bruce, for violating the FCA’s anti-retaliation provision.

§ 3730(h). The district court1 granted CCMH’s motion to dismiss all counts of the

complaint, except Strubbe’s retaliation claim. As for it, the district court granted

CCMH’s motion for summary judgment. Strubbe v. Crawford Cty. Mem’l Hosp.,

2017 WL 8792692 (N.D. Iowa Dec. 6, 2017). Having jurisdiction under 28 U.S.C.

§ 1291, this court affirms.

I.

Crawford County Memorial Hospital is a county-owned nonprofit hospital in

Iowa. In April 2012, Bruce became its Chief Executive Officer.

At CCMH, Strubbe was an Emergency Medical Technician (EMT), and Christie

and Trader were paramedics. They filed a sealed qui tam complaint as relators in

April 2015. The United States declined to intervene. The relators filed an amended

complaint. It alleges that CCMH submitted false claims for Medicare reimbursement

and made false statements or reports to get fraudulent claims paid. Specifically, Count

I alleges that CCMH violated the FCA by submitting (1) claims for breathing

treatments administered by paramedics; (2) claims for laboratory services done by

paramedics and EMTs; (3) claims with false credentials of service providers; (4)

claims for EMT and paramedic services at Eventide, L.L.C. and Denison Care Center;

and (5) cost reports with improper reimbursements and payments to vendors for non-

CCMH expenses. Count II alleges CCMH knowingly made or used false statements

to get false claims paid, including (1) records documenting breathing treatments at 30

minutes; (2) records listing paramedics as “specialized ancillary staff” for breathing

treatments; (3) reimbursement requests and invoices for improper payments for non-

CCMH expenses; (4) documents with false credentials for emergency medical staff;

1The Honorable Leonard T. Strand, Chief Judge, United States District Court

for the Northern District of Iowa.

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and (5) cost reports with false costs. Count III alleges that CCMH conspired with

Eventide to violate the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b.

Strubbe, Trader, and Christie also sued CCMH and Bruce for violating the

FCA’s anti-retaliation provision. According to the complaint, Strubbe began

reviewing hospital financial documents in July 2014. Soon after, she “spoke to all

Board members about the financial situation of CCMH [and] her belief that the

finances were not adding up.” In November, Strubbe tore her rotator cuff at work.

Initially, CCMH put her on “light duty.” In July 2015, however, CCMH told Strubbe

her light-duty assignments were a financial hardship for the hospital and moved her

to part-time status. CCMH removed Strubbe from part-time status in March 2016

(effectively a termination).

Christie and Trader also began investigating CCMH’s finances in 2014. They

complained to other hospital staff that “there was something wrong with the changes

in the breathing treatments.” Christie also complained there was “potentially

something wrong with the financial statements provided by CCMH to the Board.” In

January 2015, Christie reported to her supervisor that Jonathan Richard was “not

properly licensed” as a paramedic. Both Christie and Trader then reported the license

violation to the Iowa Department of Public Health. Four months later, CCMH

transitioned Christie from night shifts to day shifts. It terminated Christie later that

month for speeding while driving an ambulance. Trader still works at CCMH as a

paramedic, but claims that it subjects him to harrassment and other discriminatory

treatment.

CCMH moved to dismiss the complaint. The district court dismissed the

substantive FCA claims for failure to plead with particularity because the complaint

did not set forth facts showing any false claims were submitted, or plead how the

relators acquired this information. It also dismissed Christie and Trader’s retaliation

claims as not stating a plausible claim for relief. However, the court denied CCMH’s

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motion to dismiss Strubbe’s retaliation claim. CCMH then moved for summary

judgment on it. Concluding that Strubbe could not prove a prima facie case of

retaliation, the district court granted summary judgment to CCMH.

II.

This court reviews de novo the district court’s dismissal of a claim under Rule

9(b), “accepting the allegations contained in the complaint as true and drawing all

reasonable inferences in favor of the nonmoving party.” United States ex rel. Joshi

v. St. Luke’s Hosp., Inc., 441 F.3d 552, 555 (8th Cir. 2006). The False Claims Act

(FCA) imposes liability on anyone who “knowingly presents, or causes to be

presented, a false or fraudulent claim for payment or approval” or who “knowingly

makes, uses, or causes to be made or used, a false record or statement material to a

false or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(A)-(B). “The FCA attaches

liability, not to the underlying fraudulent activity, but to the claim for payment.”

Olson v. Fairview Health Servs. of Minn., 831 F.3d 1063, 1070 (8th Cir. 2016). Qui

tam provisions permit private persons, relators, to sue for violations in the name of the

United States and to recover part of the proceeds if successful. § 3730(b), (d).

“Because the FCA is an anti-fraud statute, complaints alleging violations of the

FCA must comply with Rule 9(b).” Joshi, 441 F.3d at 556. Under Rule 9(b), “a party

must state with particularity the circumstances constituting fraud or mistake.” This

gives defendants notice and protects them from baseless claims. United States ex rel.

Thayer v. Planned Parenthood of the Heartland, 765 F.3d 914, 918 (8th Cir. 2014).

While Rule 9(b) is “context specific and flexible,” id., a plaintiff cannot meet this

burden with conclusory and generalized allegations. Joshi, 441 F.3d at 557. Where

“the facts constituting the fraud are peculiarly within the opposing party’s

knowledge,” the “allegations may be pleaded on information and belief” if

“accompanied by a statement of facts on which the belief is founded.” Drobnak v.

Andersen Corp., 561 F.3d 778, 783-84 (8th Cir. 2009).

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To satisfy the particularity requirement for FCA claims, “the complaint must

plead such facts as the time, place, and content of the defendant’s false

representations, as well as the details of the defendant’s fraudulent acts, including

when the acts occurred, who engaged in them, and what was obtained as a result.”

Joshi, 441 F.3d at 556. A relator can meet the Rule 9(b) requirements by pleading (1)

“representative examples of the false claims,” or (2) the “particular details of a scheme

to submit false claims paired with reliable indicia that lead to a strong inference that

claims were actually submitted.” Thayer, 765 F.3d at 918. To satisfy the particular

details requirement, the complaint must “provide sufficient details to enable the

defendant to respond specifically and quickly to the potentially damaging allegations.”

Id. at 918-19.

A.

In Count I, the relators contend that CCMH submitted false claims through a

wide-ranging fraudulent scheme. First, the complaint alleges that shortly after Bruce

became CEO, CCMH required paramedics to perform breathing treatments previously

provided by nursing staff. Hospital management told employees this change was for

“billing” and “cost reimbursement purposes” and required them to document each

treatment at 30 minutes, regardless of its length. The complaint alleges—upon

information and belief—that these changes allowed CCMH to bill these treatments

separately to get a higher reimbursement from Medicare. Further, the complaint

alleges that CCMH treats paramedics as “specialized staff,” making the treatments

separately billable. Relators also contend—upon information and belief—that patients

are receiving breathing treatments who do not need them.

Second, the complaint alleges that CCMH ordered paramedics and EMTs to

perform laboratory services, like blood draws. The relators claim—upon information

and belief—that this change, like the breathing treatments, was intended to increase

Medicare reimbursement by allowing CCMH to bill these services separately. Third,

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the complaint identifies three employees with misclassified titles. For example, the

complaint alleges—upon information and belief—that CCMH billed Medicare for

Richard’s services as a paramedic, though he was “not properly licensed.” Fourth, the

relators claim paramedics and EMTs provided services at two other health care

facilities—Eventide and Denison. Based on information and belief, CCMH instituted

this change to increase Medicare reimbursement. Finally, the complaint alleges that

CCMH reported improper expenses to Medicare. Relators contend—upon

information and belief—that CCMH submitted cost reports to Medicare with

payments to Bruce’s relatives above the market value and with duplicate payments

to the credit card companies and the sellers.

Relators did not plead representative samples of false claims. In Joshi, a

hospital anesthesiologist brought a qui tam claim alleging that the hospital sought

Medicare reimbursements at higher rates and submitted claims for services and

supplies not provided. Joshi, 441 F.3d at 554. Joshi did not provide representative

samples, but alleged that every claim over a sixteen-year period was fraudulent. Id.

at 556-57. Though Rule 9(b) does not require alleging the “specific details of every

alleged fraudulent claim,” this court dismissed Joshi’s claim because a relator “must

provide some representative examples of [the] alleged fraudulent conduct, specifying

the time, place, and content of [the] acts and the identity of the actors.” Id. at 557.

The relators here pleaded more than the relator in Joshi. However, like Joshi,

the complaint here alleges a fraudulent scheme without representative examples with

the required specificity. For instance, the complaint alleges CCMH submitted false

claims for unnecessary breathing treatments. It gives one example of a patient who

received an unnecessary breathing treatment, but fails to include the date, the provider

performing the treatment, any specific information about the patient, what money was

obtained, and most importantly, whether a claim was actually submitted for that

particular patient.

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Under Thayer, a relator can also satisfy Rule 9(b) by pleading the “particular

details of a scheme to submit false claims paired with reliable indicia that lead to a

strong inference that claims were actually submitted.” Thayer, 765 F.3d at 918. The

allegations in Count I are close to meeting this standard. The complaint includes some

details of the fraudulent scheme. It pleads the names of the individuals that instructed

them to carry out the breathing treatments and blood draws, the two-year period when

these services were provided, and statements by their supervisor that the changes to

the breathing treatments were for billing and cost reimbursement purposes. The

complaint also pleads how hospital management told them to document each

breathing treatment at 30 minutes, regardless of its length. It includes the names of

three individuals who relators believed were misclassified, and how Christie and

Trader learned of Richard’s licensure violation. The relators also give some details

about one receipt for gas and moving expenses that was allegedly altered.

However, the complaint lacks the sufficient indicia of reliability leading to a

strong inference that claims were actually submitted. In Thayer, the relator—a center

manager for several Planned Parenthood clinics—alleged a fraudulent scheme. Id. at

919. This court emphasized that the relator’s position as center manager gave her

personal knowledge that false claims were submitted and allowed her to plead specific

details about the billing system and practices, providing sufficient indicia of reliability

for two of Thayer’s claims. Id. This court dismissed another claim where Thayer did

not have “access to the billing systems . . . [or] knowledge of their billing practices,”

leaving her “only able to speculate that false claims were submitted . . . .” Id. at 919-

20.

The relators here—paramedics and EMTs—did not have access to the billing

department. The complaint did not include any details about CCMH’s billing

practices. See United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190-91 (5th

Cir. 2009) (“Confronting False Claims Act defendants with both an alleged scheme

to submit false claims and details leading to a strong inference that those claims were

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submitted—such as dates and descriptions of recorded, but unprovided, services and

a description of the billing system that the records were likely entered into—gives

defendants adequate notice of the claims.”). Nor did the complaint allege that the

relators had personal knowledge of the billing system or the submission of false

claims. See United States ex rel. Prather v. Brookdale Senior Living Cmtys., 838

F.3d 750, 769-70 (6th Cir. 2016) (relator’s allegations gave reliable indicia because

she had knowledge of billing documentation and pleaded specific details like the

treatment of four patients, the dates of care, the dates the false certification occurred,

and the amount requested for final payment). Some of the facts pleaded—such as

their supervisor’s statements that the changes to breathing treatments were for billing

and cost reimbursement purposes—shows the possibility that CCMH submitted

claims. However, the facts pleaded do not “lead to a strong inference that claims were

actually submitted.” Thayer, 765 F.3d at 918 (emphasis added). See Chesbrough v.

VPA, P.C., 655 F.3d 461, 472 (6th Cir. 2011) (“[T]his is not a situation in which the

alleged facts support a strong inference—rather than simply a possibility—that a false

claim was presented to the government.”); Corsello v. Lincare, Inc., 428 F.3d 1008,

1013 (11th Cir. 2005) (declining to “make inferences about the submission of

fraudulent claims because such an assumption would ‘strip[ ] all meaning from Rule

9(b)’s requirements of specificity’”) (alteration in original).

The relators pleaded many key facts upon information and belief, without

providing a “statement of facts on which the belief is founded.” Drobnak, 561 F.3d

at 784. See, e.g., Compl. ¶ 59 (“Upon information and belief, Richard’s services were

billed, in part, to Medicare. Richard was not, however, licensed in the State of Iowa

as a paramedic.”). They allege, “Certain vendors paid by the hospital are personally

related to Bruce and their services are paid well above market value. For example,

thousands of dollars have been paid to Bruce’s brother, who, upon information and

belief, owns an out-of-state moving company . . . [which] is paid from CCMH funds

to move doctors . . . when it would be more economical to use a local moving

company.” Id. ¶ 74. Relators then claim, upon information and belief, that these

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expenses were included in cost reports to Medicare. They do not explain how they

know Bruce’s brother owns a moving company or that CCMH is using it. A

generalized allegation that the hospital paid vendors above market value and

submitted a false cost report—without a statement of facts on which the belief is

founded—does not sufficiently demonstrate that these were improper expenses or

were included on cost reports. See Drobnak, 561 F.3d at 784 (when pleading on

information and belief, allegations must be “accompanied by a statement of facts on

which the belief is founded”).

Other allegations, which are not pleaded upon information and belief, similarly

do not identify the underlying basis for the assertions. See Thayer, 765 F.3d at 919

(“Thayer’s claims thus have sufficient indicia of reliability because she provided the

underlying factual bases for her allegations.”). For instance, the relators plead, “The

paramedics were told by their managers, in writing, that no matter how long the

breathing treatments took, to document on the timesheets that the treatments took at

least 30 minutes. These timesheets are used in billing to Medicare.” Compl. ¶ 30.

The relators—who do not allege personal knowledge of the hospital’s billing

practices—do not explain how they knew the timesheets were used to bill Medicare.

They also do not plead a single example where they performed a breathing treatment

in less than 30 minutes.

Because the relators failed to plead fraud with particularity, the district court

properly dismissed Count I under Rule 9(b).

B.

In Count II, relators sued under 31 U.S.C. § 3729(a)(1)(B), which imposes

liability on anyone who “knowingly makes, uses, or causes to be made or used, a false

record or statement material to a false or fraudulent claim.” The false statements

alleged include: records for 30-minute breathing treatments, records for breathing

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treatments listing paramedics as “specialized ancillary staff,” improper payment

requests for non-CCMH expenses, documents misclassifying employees like Richard,

and cost reports listing false costs. Though claims under § 3729(a)(1)(B) do not

require proof that CCMH submitted a false claim, relators must still “plead a

connection between the alleged fraud and an actual claim made to the government.”

United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905, 916 (6th Cir.

2017). See United States ex rel. Grant v. United Airlines, Inc., 912 F.3d 190, 200

(4th Cir. 2018) (reasoning that a relator asserting a claim under § 3729(a)(1)(B) “is

still required to show that a false claim was submitted to the government”). Cf.

Grubbs, 565 F.3d at 193 (“[T]he recording of a false record, when it is made with the

requisite intent” to get a false claim paid “is enough to satisfy the statute . . . .”). The

complaint here, as discussed above, fails to connect the false records or statements to

any claim made to the government. Further, like Count I, many of the allegations are

founded upon information and belief without a statement of facts on which the belief

is founded. Drobnak, 561 F.3d at 784. Count II was properly dismissed.

C.

Count III alleges that CCMH conspired with Eventide to violate the Anti-

Kickback Statute. To satisfy Rule 9(b)’s particularity requirements, this claim must

plead the details of a conspiracy, including an agreement between CCMH and

Eventide, and an overt act in furtherance of the conspiracy. Grubbs, 565 F.3d at 193.

Because the complaint does not include any details about an agreement, the relators

fail to plead the conspiracy with particularity. The district court properly dismissed

the conspiracy claim.

III.

The FCA protects employees who are “discharged, demoted, . . . harassed, or

in any other manner discriminated against in the terms and conditions of employment

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because of lawful acts done by the employee . . . in furtherance of” a civil action under

the FCA “or other efforts to stop 1 or more violations” of the FCA. 31 U.S.C. §

3730(h). To prove retaliation in violation of the FCA, a plaintiff must prove that “(1)

the plaintiff was engaged in conduct protected by the FCA; (2) the plaintiff’s

employer knew that the plaintiff engaged in the protected activity; (3) the employer

retaliated against the plaintiff; and (4) the retaliation was motivated solely by the

plaintiff’s protected activity.” Schuhardt v. Washington Univ., 390 F.3d 563, 566

(8th Cir. 2004).

The relators allege that Bruce can be held individually liable for his acts in their

FCA retaliation claims. CCMH—not Bruce—is the relators’ employer. They appear

to argue that a 2009 amendment to the FCA—which removed an explicit reference to

retaliatory acts by an “employer”—expands liability. Before the 2009 amendment,

federal courts—including this court—uniformly held that the FCA did not impose

individual liability for retaliation claims. See United States ex rel. Golden v.

Arkansas Game & Fish Comm’n, 333 F.3d 867, 870-71 (8th Cir. 2003). After the

2009 amendment, numerous courts still hold that the FCA does not create individual

liability because Congress deleted the word “employer” so contractors and agents

could bring FCA retaliation claims. E.g., Howell v. Town of Ball, 827 F.3d 515, 529-

30 (5th Cir. 2016). “Congress acts with knowledge of existing law, and [ ] absent a

clear manifestation of contrary intent, a . . . revised statute is presumed to be

harmonious with existing law and its judicial construction.” Estate of Wood v. C.I.R.,

909 F.2d 1155, 1160 (8th Cir. 1990). Because Congress did not amend the FCA to

impose individual liability, the FCA does not impose individual liability for retaliation

claims. The district court correctly dismissed the claims against Bruce.

A.

To survive a motion to dismiss, the complaint must “state a claim to relief that

is plausible on its face,” meaning that the “plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). This court reviews de novo the

dismissal for failure to state a claim. Drobnak, 561 F.3d at 783.

The district court found that Christie and Trader did not engage in protected

activity and dismissed their claims. Christie and Trader claim they engaged in two

different types of protected activity: (1) complaining to hospital staff about the

breathing treatments, and (2) reporting Richard’s license violation to the State.

Additionally, Christie claims his investigations into CCMH’s financial matters are

protected activity. An employee’s conduct must satisfy two conditions to constitute

protected activity. Schuhardt, 390 F.3d at 567. First, it “must have been in

furtherance of an FCA action” or an effort to stop one or more FCA violations.

§ 3730(h); Schuhardt, 390 F.3d at 567. Second, the conduct “must be aimed at

matters which are calculated, or reasonably could lead, to a viable FCA action,”

meaning the employee “in good faith believes, and . . . a reasonable employee in the

same or similar circumstances might believe, that the employer is possibly committing

fraud against the government.” Schuhardt, 390 F.3d at 567.

Even assuming Christie and Trader engaged in protected activity, their

retaliation claims fail to state a plausible claim because they did not adequately plead

that CCMH knew they were engaging in protected activity. They must show CCMH

knew they were “either taking action in furtherance of a private qui tam action . . . [,]

assisting in an FCA action brought by the government,” or taking some other action

to stop an FCA violation. Id. at 568; § 3730(h). Christie and Trader both complained

to hospital staff about the breathing treatments and the financial situation at CCMH.

Christie also emailed the compliance manager to inform CCMH he made a report

about Richard’s license “as required by Iowa law.” However, to provide actual or

constructive knowledge, employees must connect the alleged misconduct to fraudulent

or illegal activity or the FCA. See Schuhardt, 390 F.3d at 568-69 (plaintiff gave her

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employer notice of protected activity after she advised her supervisor that the

organization’s conduct could be “fraudulent and illegal” and that “if the OIG would

come in they would frown upon us and they’d pretty much wipe us out”). The

complaint here does not allege that Christie and Trader told CCMH or the State that

CCMH’s behavior was fraudulent or potentially subjected it to FCA liability.

Reporting a license violation to the State does not tell CCMH that these employees

believe it is acting fraudulently, especially where Christie pleaded he was “required

to tell” state officials about Richard’s license because “otherwise he himself could

lose his licensure” under state law. Likewise, complaining to hospital staff about

CCMH’s financial situation and the changes to breathing treatments does not give

CCMH notice that Christie and Trader were taking action in furtherance of a qui tam

action or to stop an FCA violation. Id. at 568.

Because the relators did not sufficiently plead that CCMH knew they were

engaging in protected activity, the district court properly dismissed their retaliation

claims.

B.

This court reviews de novo the grant of summary judgment, viewing all

evidence most favorably to the nonmoving party. Id. at 566. Summary judgment is

appropriate if there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). CCMH is entitled to

summary judgment if Strubbe “has failed to make a sufficient showing on an essential

element of her case with respect to which she has the burden of proof.” See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In the absence of direct evidence of retaliation, courts apply the McDonnell

Douglas framework to retaliation claims. McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). While this court has not explicitly adopted this framework for FCA

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retaliation claims, it applies it to other whistleblower statutes. See, e.g., Elkharwily

v. Mayo Holding Co., 823 F.3d 462, 470 (8th Cir. 2016) (assuming without deciding

that the framework applies to the Emergency Medical Treatment Active Labor Act).

Most of the other circuits use the framework for FCA retaliation claims. See Diaz v.

Kaplan Higher Educ., L.L.C., 820 F.3d 172, 175 & n.3 (5th Cir. 2016) (collecting

cases and adopting the framework for FCA retaliation claims). This court will apply

the McDonnell Douglas framework to FCA retaliation claims.

Under McDonnell Douglas, Strubbe bears the initial burden of establishing a

prima facie case of FCA retaliation. Elkharwily, 823 F.3d at 470. To establish a

prima facie case, Strubbe must show that (1) she engaged in protected conduct, (2)

CCMH knew she engaged in protected conduct, (3) CCMH retaliated against her, and

(4) “the retaliation was motivated solely by [Strubbe’s] protected activity.”

Schuhardt, 390 F.3d at 566. If Strubbe establishes a prima facie case, the burden

shifts to CCMH to “articulate a legitimate reason for the adverse action.” Elkharwily,

823 F.3d at 470. The burden then shifts back to Strubbe to demonstrate that “the

proffered reason is merely a pretext and that retaliatory animus motivated the adverse

action.” Id.

Like Christie and Trader, Strubbe’s complaints to the CCMH Board and sheriff

about “financial wrongdoing” and her investigations into CCMH’s finances are not

protected activity. There is no indication they were made in furtherance of an FCA

action or were an effort to stop an FCA violation. She did not connect her concerns

about CCMH’s finances to fraud, the FCA, or any unlawful activity. See Green v. City

of St. Louis, 507 F.3d 662, 667-68 (8th Cir. 2007) (reasoning the plaintiff did not

engage in protected activity because he admitted he did not know whether the city

submitted any document with false information when he complained about the city’s

policy). See also Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 951 (5th

Cir. 1994) (recognizing that to engage in protected activity, an employee should

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“express concerns about possible fraud to their employers”). However, Strubbe’s

filing of an FCA claim is protected conduct. § 3730(h).

The complaint was unsealed in November 2015, alerting CCMH that Strubbe

engaged in protected activity. Strubbe claims that CCMH had notice before this

because the federal government sent informal interrogatories to CCMH in August

2015 that mimicked the open records request her attorney sent in March. Strubbe

presented no evidence, however, that CCMH knew her attorney sent that records

request. Strubbe has shown only that CCMH had knowledge of her protected activity

beginning in November 2015.

Retaliatory acts under the FCA include discharging, demoting, suspending,

threatening, harrassing, or otherwise discriminating against an employee.

§ 3730(h)(1). Strubbe’s removal from part-time status—effectively a termination—in

March 2016 is a retaliatory act.

Strubbe cannot prove that her termination was solely motivated by protected

activity. She contends causation can be inferred because CCMH assigned her lightduty

work after she was injured, but stopped once it learned of her FCA claim.

Meanwhile, Stacey Kruse, another employee with a shoulder injury, continued to get

light-duty work. Strubbe claims that an email from CCMH to Kruse, describing Kruse

as a “low key injured employee,” provides further proof CCMH removed her from

part-time status because of her protected conduct. However, these events all occurred

before CCMH knew Strubbe brought the FCA claim. They do not demonstrate

CCMH terminated Strubbe solely because of her protected conduct.

CCMH did not terminate Strubbe until four months after learning of her

involvement in the FCA claim. By then, she had not performed work at CCMH for

six months. A temporal connection between the protected conduct and adverse action

may be sufficient to establish a prima facie case where the proximity is “very close.”

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Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam); Smith v.

Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002) (two weeks between

protected conduct and adverse action sufficient to establish prima facie case).

Generally, however, “more than a temporal connection between the protected conduct

and the adverse employment action is required to present a genuine factual issue on

retaliation.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en

banc). Here, the four months between the unsealing of the complaint and her removal

from part-time status is too attenuated to establish a prima facie case. See Kipp v.

Missouri Highway & Transp. Comm’n, 280 F.3d 893, 897 (8th Cir. 2002) (two

months between complaint and termination “dilutes any inference of causation”).

Even if the facts suggested Strubbe’s removal was solely motivated by her

protected conduct, CCMH has provided a legitimate, non-discriminatory reason.

CCMH claims it removed Strubbe from part-time status under its policy requiring

employees to have worked in the previous six months. Strubbe can prove this reason

is pretextual by showing CCMH “(1) failed to follow its own policies, (2) treated

similarly-situated employees in a disparate manner, or (3) shifted its explanation of

the employment decision.” Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899,

904 (8th Cir. 2015). CCMH’s policy states, “The minimum requirement to remain a

per diem employee is to have worked in the past six months . . . .” CCMH followed

this policy when it terminated Strubbe. By the time it removed her from part-time

status, Strubbe had not worked as an EMT for over a year and had not performed any

work for CCMH for six months. CCMH has not changed its explanation for Strubbe’s

termination.

Strubbe claims that CCMH treated Kruse, a similarly situated employee,

differently by giving her light-duty work. Strubbe has not demonstrated that Kruse

is similarly situated. She did not provide sufficient information detailing the

significance of Kruse’s injury, her physical limitations, her position at CCMH, or

whether she had worked in the last six months. Further, CCMH sent Kruse the email

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describing her as a “low key injured employee” before CCMH learned of Strubbe’s

FCA claim. Strubbe cannot show that CCMH’s reason for her termination was

pretextual.

The district court properly granted summary judgment for CCMH.

* * * * * * *

The judgment is affirmed.

BEAM, Circuit Judge, dissenting in part and concurring in part.

I acknowledge that fraud cases receive more scrutiny at the pleadings stage than

the average civil case. In a fraud case, rather than simply providing notice in the

pleadings under Federal Rule of Civil Procedure 8, a plaintiff must "state with

particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b). Originally,

Rule 8 required something akin to, "I'm hurt, you did it, pay me." See Conley v.

Gibson, 355 U.S. 41, 45-46 (1957) (holding that "a complaint should not be dismissed

for failure to state a claim unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to relief"). But see Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007) & Ashcroft v. Iqbal, 556 U.S. 662 (2009)

(effecting a landslide erosion of Conley's liberal construction of Rule 8's pleading

standard). Because the FCA is an anti-fraud statute, the complaint's false-claim

allegations must comply with Rule 9(b). However because Rule 9 does not eliminate

Rule 8's notice pleading standard, Zayed v. Associated Bank, N.A., 779 F.3d 727, 733

(8th Cir. 2015), and the relators' pleadings in Counts I and II of their complaint more

than adequately give notice, with particularity, of the fraud they are alleging, I dissent

in part.

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"To satisfy the particularity requirement of Rule 9(b), the complaint must plead

such facts as the time, place, and content of the defendant's false representations, as

well as the details of the defendant's fraudulent acts, including when the acts occurred,

who engaged in them, and what was obtained as a result." United States ex rel. Joshi

v. St. Luke's Hosp., Inc., 441 F.3d 552, 556 (8th Cir. 2006). As the majority opinion

acknowledges, "[t]he relators here pleaded more than the relator in Joshi" and that

"[t]he allegations in Count I are close to meeting this standard." Ante at 6-7 (emphasis

added). And yet, the court still requires more of a relator than is necessary at this

stage of the proceedings.

I would find that the relators have met Rule 8 and 9 (and Joshi's) requirement

for pleading fraud with particularity. 441 F.3d at 556. Indeed, the majority opinion

and the district court essentially require that the relators here witness the Medicare

forms being submitted in order to get past the pleading stage in this case. If that were

the case, only someone with access to the hospital's internal accounting records could

successfully bring a qui tam action in this situation. Indeed, as relators point out, the

accounting records became unaccessible to employees and the public once Bill Bruce

became CEO (and incidentally, the HR manager) of the hospital. Bruce and the

hospital can thus effectively eliminate any civil liability for false claims by

eliminating access to financial information.

The complaint contained 198 paragraphs, including 55 paragraphs in the

"Specific and Detailed Allegations" section, and spelled out the impropriety of EMTs

and paramedics being asked to perform work differently, and to perform work–(i.e.,

breathing treatments on inpatients)–that EMTs and paramedics were not the most

qualified and certainly not the most conveniently situated to perform. The complaint

alleges the relators were told the reason for this abrupt change in procedure and policy

was for "billing" purposes. Comp. ¶¶ 26-28. The complaint detailed the exponential

increase in separately billed "breathing" treatments even while the number of hospital

patients declined. ¶¶ 33-35. The complaint detailed how relators were required to

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make false entries into the computer system that was used for Medicare

billing–averring that the treatments lasted at least thirty minutes regardless of how

long the treatment lasted. ¶¶ 30, 98. Requiring the relators to plead an exact day in

which any one of them performed a breathing treatment in less than 30 minutes, see

ante at 9, is more than is necessary. United States ex. rel Thayer v. Planned

Parenthood of the Heartland, 765 F.3d 914, 917-18 (8th Cir. 2014) (holding that a

relator does not have to plead specific examples in every case, and instead a "relator

can satisfy Rule 9(b) by 'alleging particular details of a scheme to submit false claims

paired with reliable indicia that lead to a strong inference that claims were actually

submitted'") (quoting United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190

(5th Cir. 2009)).

Further, the relators did provide a concrete example of a terminal patient who

clearly did not need a breathing treatment but was required to get one. ¶ 37. Relators

pleaded with particularity that "Patient A, known to Relator Trader, was ordered to

receive breathing treatments despite having been in a traumatic, clearly terminal,

accident." Id. Two of the relators questioned the hospital's nurses about giving

breathing treatments to other patients who clearly did "not need the treatments, but

they were told to give the treatments anyway." ¶ 38. The complaint goes on to

explain that breathing treatments given by paramedics, as opposed to nurses, are billed

differently and generate more revenue for the hospital. ¶¶ 39-53. There are links to

governmental and industry documents explaining this process.2 The complaint details

specific accounts of staff who were held out to be, and required to perform, acts of

paramedics and phlebotomists despite their lack of certification. ¶¶ 59-63.

Although relators were not in a position to see the bills generated after such

computer entries, the pleadings gave adequate notice of the natural inference that the

2Some of the government website links no longer work or have been moved, but

many of the links do indeed provide the documentation described in the complaint.

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breathing treatments were fraudulently and inflatedly billed the way they were

entered. Further, evidence of fraud–Bruce's purported misuse of a hospital credit

card–is documented with particularity in the complaint including: the day of payment

to "Money Gram," the amount of payment, and the outcome of an open records

request which resulted in the production of an altered receipt. ¶ 70.

In short, the district court, and a majority of this court, essentially hold that

short of the relators committing criminal activity by illegally accessing the hospital's

billing records, they cannot successfully plead a false claims act case of Medicare

billing fraud. This should not be the state of the law, especially as here "when the

opposing party is the only practical source for discovering the specific facts

supporting a pleader's conclusion." Bos. & Maine Corp. v. Town of Hampton, 987

F.2d 855, 866 (1st Cir. 1993), overruled on other grounds by Educadores

Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 66-67 (1st Cir. 2004). In such

cases, "less specificity of pleading may be required pending discovery." 987 F.2d at

866. See also United States ex rel. Nargol v. DePuy Orthopaedics, Inc., 865 F.3d 29,

37-41 (1st Cir. 2017) (noting that inferences can be used at the pleading stage of a

fraud case, especially where the relators have little access to documentation, but clear

knowledge of the scheme), cert. denied, 18 S. Ct. 1551 (2018). Accordingly, I dissent

from Part IIA and IIB of the opinion affirming the dismissal of Counts I and II of the

complaint. I concur in the remainder of the court's opinion.

Affirmed