Whistleblowing Did Not Protect Alleged Harasser from Discharge

A harassment investigation conducted by HR that occurred long after a whistleblowing event took place provided a company with a valid defense to a claim that a worker was fired due to whistleblowing when the investigators were unaware of this activity, the 3rd U.S. Circuit Court of Appeals decided.

The plaintiff was hired by Gateway Health Plan to help Highmark Inc. investigate fraud. While auditing Highmark's network of doctors, the plaintiff found some troubling facts. For instance, he claimed to have discovered that some doctors had prior convictions for selling opioid prescriptions and others lacked required Medicaid licenses.

In mid-2017, the plaintiff reported his concerns to his managers at Gateway. They investigated but decided not to take any action. The plaintiff kept pressing the issue. Eventually, his managers told him to drop it.

More than a year after his first report, on Oct. 1, 2018, one of the plaintiff's co-workers lodged a harassment complaint against him. In that complaint, the co-worker claimed that the plaintiff called her "Miss Piggy" and "oinked" at her. Gateway's HR team investigated. The investigator interviewed the plaintiff, the complainant and an eyewitness who corroborated the complainant's story. At the plaintiff's insistence, the investigator also interviewed other people who knew of past issues between the plaintiff and the complainant.

The investigator also spoke to one of the managers who had told the plaintiff to stop reporting concerns about Highmark's doctors. The manager told the investigator that he would have questioned the harassment allegations against the plaintiff but that earlier that day, the plaintiff had called the manager and made "coughing" and "snorting" noises, which made him think the plaintiff "did it." On Oct. 3, 2018, HR fired the plaintiff.

The plaintiff sued Gateway and Highmark under the False Claims Act (FCA) for retaliation. He claimed he had been fired because of his fraud reports. The employers replied that the people who had decided to fire the plaintiff knew nothing about his reports and that they had good reason to fire him. The district court agreed and granted summary judgment.

On appeal, the 3rd Circuit focused on whether any evidence of pretext supported the claim of FCA retaliation. This could take the form of evidence that the termination decision so lacked basis that it showed retaliation or of direct evidence of retaliatory motivation.

The plaintiff argued that the HR investigation was so flawed that it must have been a sham. He also argued that the manager who knew of his protected activity used the investigation to get rid of him.

The 3rd Circuit considered these claims and found that the HR investigation was far from a facade. Rather, HR interviewed the complainant, the plaintiff and an eyewitness who corroborated the complainant's account. They even interviewed witnesses identified by the plaintiff who knew of past issues between the plaintiff and the complainant.

While HR could have conceivably done more, its investigation was not so thoroughly flawed that a jury could find it unbelievable. Moreover, the investigation took place long after the plaintiff reported FCA concerns, and HR did not know of these reports during its investigation.

The 3rd Circuit also considered the plaintiff's argument that the manager who told him to stop reporting FCA issues used HR as an instrument to retaliate against him. The plaintiff claimed that HR was thus a "cat's paw" to effectuate the manager's malicious intent.

The 3rd Circuit reviewed the evidence, however, and found that the plaintiff could not show that the manager wanted him to be fired. Rather, the manager first told HR that he would have questioned the allegations against the plaintiff but for the plaintiff's behavior on their phone call.

Similarly, by the time HR talked to the manager, its investigation uncovered evidence from multiple witnesses that supported the harassment complaint. Thus, the plaintiff could not show that the manager's response to HR caused the investigation to end early or changed its outcome.

As a result, the 3rd Circuit affirmed the district court's dismissal of the complaint.

Crosbie v. Highmark Inc., 3rd Cir., No. 21-1641 (Aug. 26, 2022).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.