and her confrontations with defendants fall within § 3730(h)'s protective umbrella. See S. Rep. No. 345, at 34, reprinted in 1986 U.S.C.C.A.N. at 5299 ("Protected activity should . . . be interpreted broadly.").
As to the second element--defendant's knowledge--the Second Circuit has yet to interpret that aspect of § 3730(h). However, the Fifth Circuit, seizing on the legislative history of the statute indicating that a "whistleblower must show the employer had knowledge the employee engaged in 'protected activity,'" S. Rep. No. 345, at 35, reprinted in 1986 U.S.C.C.A.N. at 5300, has held that absent evidence indicating that the employee actually accused the company of defrauding the government prior to his termination, the employee cannot establish that the employer had knowledge that he was engaged in protected activity. Robertson, 32 F.3d at 951. In that case, the plaintiff, Robertson, complained to his supervisors about unsubstantiated maintenance and repair costs that he had been directed to charge to the government under the Army Helicopter Improvement Program. The court held that despite the fact that Robertson's supervisors were aware of his concerns, because Robinson had neither specifically charged the company with "illegal" activity nor alluded to potential qui tam liability, as a matter of law there was insufficient evidence that the defendant knew that his investigation was "in furtherance of a qui tam action." Id.
To the extent that Robertson might be construed as establishing a bright line rule that, to sustain an action under § 3730(h), before termination the employee must expressly accuse the employer of defrauding the government or threaten a qui tam action based thereon, we decline to follow the Fifth Circuit's lead. See id. However, we think that Robertson more broadly interpreted states the correct notice rule: that to overcome a motion for judgment as a matter of law (or summary judgment), an employee must supply sufficient facts from which a reasonable jury could conclude that the employee was discharged because of activities which gave the employer reason to believe that the employee was contemplating a qui tam action against it. To insist upon an express or even an implied threat of such action would impose a requirement which is wholly unrealistic in an employment context. Despite the protection afforded by § 3730(h)--of which most employees are doubtless unaware--those who tell their employers they are preparing to sue them on behalf of a defrauded government can scarcely expect a long and happy tenure.
The Robertson court found that since Robertson's job required that he substantiate his firm's charges to the government, questioning his supervisors about those charges under the circumstances would not have led his employer to believe he was laying the groundwork for a legal action against it. Id.; see Wilkins, at *11. The circumstances in the instant case are different, however.
Plaintiff alleges that on September 15, 1991 she complained to Straus about the misuse of spirometry tests and specifically informed him that the failure to provide written interpretation of the tests precluded his charging them to Medicare. Later, in a mid-October, 1991 meeting, she complained to Straus about the overuse of MRI tests. Although these discussions stop short of a specific accusation of fraud, they clearly imply that defendant's activities were unlawful. Drawing all reasonable inferences in favor of plaintiff, a jury could conclude that defendants knew plaintiff had uncovered their misuse of tests and fraudulent billing therefor.
In addition, plaintiff inspected Straus' so called "private" files, informed him of that fact, and accused him of overutilizing MRI tests. Following on the heels of her earlier accusations implying Medicare overbilling, these charges could confirm the defendants' earlier suspicions regarding plaintiff's activities, and heighten the motivation to terminate her employment. Moreover, Straus' alleged enraged reaction to plaintiff's unauthorized inspections lends credence to this theory. While defendants contest plaintiff's recounting of these events, we are not in a position to weigh the facts on this motion. In light of the totality of the circumstances surrounding plaintiff's activities, we find that a reasonable jury could conclude that defendants had reason to believe that plaintiff was investigating their alleged fraudulent billing practices in contemplation of a possible qui tam action.
Regarding the third § 3730(h) element, that defendants terminated plaintiff because of her investigatory activities, defendants strongly urge that because so many valid reasons existed for firing her, plaintiff has not established that her termination was in any way related to her investigation. They also argue that because she was on probation at the time of her termination, she could be fired for any reason.
While we agree that defendants could have terminated plaintiff for any lawful reason, plaintiff has raised an issue of fact regarding the actual reason in this case. Once plaintiff has done so, the burden shifts to defendants to prove affirmatively by a preponderance of the evidence that the same decision would have been made even if plaintiff had not engaged in protected activity. Cf. Consolidated Edison of New York, Inc. v. Donovan, 673 F.2d 61, 62 (2d Cir. 1982) (applying burden shifting in retaliatory discharge context); Mt. Healthy City Sch. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); S. Rep. No. 345 at 35, reprinted in 1986 U.S.C.C.A.N. at 5300. Plaintiff alleges that subsequent to her confrontations, she was "increasingly alienated by the defendants, not invited to meetings at which patients were discussed, [and] subjected to hostile remarks and harassing behavior by Straus privately and at meetings in which the other defendants were present." Plaintiff's Affidavit at P 26. Moreover, although when she was fired plaintiff had not yet obtained admitting privileges at Peekskill Hospital as required by the Agreement, her application for such privileges was still being considered by the Peekskill Medical Board and she had obtained privileges at all of the principal hospitals relevant to her medical practice with defendants. Since plaintiff has called into question defendants' stated reason, and her affidavit raises a triable fact issue whether her investigation played a primary role in her termination, we cannot grant summary disposition.
Prior to the Court's conversion of defendants' motion to dismiss into one for summary judgment, defendant requested arbitration of any claims not dismissed by the Court. Judge Broderick reserved that issue pending plaintiff's submission now before the Court. Having denied defendants' converted motion for summary judgment, we must now address the arbitrability of plaintiff's claims.
Section fifteen of the Agreement provides:
The parties agree to do their best to work out ways and means, in good faith, by frank and fair discussion between them, to amicably settle any disagreements, claims, questions or controversies which may arise out of or relate to this Agreement or out of its interpretation or any alleged breach thereof. In case of failure to reach accord by any such direct ways and means, disputes shall be settled by arbitration in the County of Westchester in accordance with such rules and regulations of the American Arbitration Association as may then be in effect.
Defendant argues that this clause binds plaintiff to arbitrate its qui tam, retaliatory discharge, and § 191 claims.
A. Arbitrability of Plaintiff's Qui Tam Claim
Because plaintiff's qui tam action is completely outside the scope of the Agreement, it is not covered by the arbitration clause. The Agreement relates solely to the terms of plaintiff's employment by PCCA. However, plaintiff's qui tam claims in no way impinge on her employee status. Even if plaintiff had never been employed by defendants, assuming other conditions were met, she would still be able to bring a suit against them for presenting false claims to the government. Moreover, as a relator plaintiff stands as a private representative of the government, participating in any recovery to which the government may be entitled. Since the government was not a party to the Agreement, even granting defendants' contention that the arbitration clause encompasses more than employment issues, we are not convinced that plaintiff, suing on the government's behalf, is necessarily bound by its terms. Whether or not that is the case, however, plaintiff's qui tam action clearly does not fall within her agreement to arbitrate.
B. Arbitrability of Plaintiff's § 3730(h) Claim
Unlike her qui tam claims, plaintiff's retaliatory discharge claim involves, at least in part, issues surrounding the employment requirements contained in the Agreement. As the Second Circuit has held, "unless it can be said 'with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute,' the dispute should be submitted to arbitration." Concourse Village, Inc. v. Local 32E, Service Employees Int'l Union, 822 F.2d 302, 304 (2d Cir. 1987) (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960)). Since the parties have agreed to arbitrate all "disagreements, claims, questions or controversies which may arise out of or relate to [the] Agreement," unless otherwise prohibited, under the general federal policy favoring arbitration we must interpret the clause as covering plaintiff's retaliatory discharge claim. Progressive Casualty Ins. Co. v. C.A. Reaseguradora Nacional De Venezuela, 991 F.2d 42, 48 (2d Cir. 1993); see also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 114 L. Ed. 2d 26, 111 S. Ct. 1647 (1991) (holding that agreement to arbitrate "any dispute, claim or controversy" surrounding employment termination encompassed statutory claims).
In the context of statutory causes of action, the Supreme Court has held that "having made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." Gilmer, 500 U.S. at 25. Such an intention may be manifested by the statutory language, its legislative history, or "an 'inherent conflict' between arbitration and the [statute's] underlying purposes." Id.
Neither § 3730(h)'s express language nor its legislative history mention its amenability to arbitration. Plaintiff, however, argues that the statute's congressionally recognized public purpose is in direct conflict with private dispute resolution, indicating by implication a congressional intent to prohibit arbitration of suits brought under it.
Pointing to legislative history indicating that Congress intended the statute to serve an important deterrent role by facilitating qui tam suits brought on behalf of the government, plaintiff argues that the arbitrability of any retaliatory discharge claim is tied to the arbitrability of a qui tam action. See S. Rep. No. 345 at 6, reprinted in 1986 U.S.C.C.A.N. at 5271. Given the public interest in protecting the treasury from fraudulent depletion, and the fact that the government, on whose behalf plaintiff brings her qui tam suit, did not agree to arbitrate the FCA claims herein, plaintiff asserts that arbitration is at odds with the policy underlying the entire qui tam statutory scheme, including § 3730(h)'s protections for those who bring such suits. We do not agree.
While § 3730(h)'s protections do serve a role in deterring fraud against the government, that particular provision is primarily remedial in nature. We agree with plaintiff that, in the abstract, the existence of § 3730(h) may assure reluctant participants in fraudulent activities that their objections will not result in their being fired and thereby facilitates whistleblowing, a largely deterrent function. However, the retaliatory discharge suit itself has little, if any, effect on deterring the fraudulent activity. Instead, it is designed to provide a remedy to a relator unlawfully terminated due to her whistleblowing. Plaintiff has made no showing that arbitration will in any way inhibit this function of the statutory scheme. Moreover, plaintiff seeks only monetary damages, a remedy fully available under the instant arbitration agreement. The fact that plaintiff is still offered a forum to fully vindicate her claim ensures that "the statute will continue to serve both its primary remedial and secondary deterrent functions." Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 851 (2d Cir. 1987); see also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 635, 87 L. Ed. 2d 444, 105 S. Ct. 3346 (1985) (remedial nature of antitrust treble damages allowed arbitral resolution of antitrust claim). Therefore, plaintiff's retaliatory discharge claim must be resolved through arbitration.
C. Arbitrability of Plaintiff's § 191 Claim
Categorizing plaintiff's § 191 claim is somewhat more complicated. In her First Amended Complaint, plaintiff claims that she is entitled to wages for her continued employment after her December 16, 1991 termination through January 2, 1992. In addition, she contends that she is entitled to three months severance pay under § 10(E) of the Agreement. That section reads:
The above employee is on probation for a period of twelve (12) months during the first year. During this probation period, the Partnership may dismiss Employee for any reason or no reason, upon three (3) months written notice by the Partnership, unless the dismissal is for cause pursuant to Section 10A, in which event Partnership shall give two (2) weeks notice.