“But-for” or “mixed motive” is a causation question not unknown to the U.S. Supreme Court. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a plurality held that the anti-discrimination provision of Title VII only requires a plaintiff to prove that discrimination was a “motivating factor” for an adverse employment action. But 20 years later, in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court held that the ADEA requires more demanding proof that age was the “but-for” cause of an adverse employment action, such that a defendant is not liable if it can prove that it would have taken the same action for other, nondiscriminatory reasons. Circuit courts have since split on whether Gross or Price Waterhouse establishes the general rule for other federal statutes that do not explicitly provide for mixed-motive claims. In recently granting review in University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (U.S.), the Supreme Court has decided to entertain yet another variation of a familiar question: whether the more lenient “mixed-motive” standard applies to Title VII retaliation claims or whether the more stringent “but for” standard applies. The resolution of that question will be significant not only for Title VII retaliation claims, but potentially for whistleblower retaliation claims arising under other similarly worded statutes, such as the False Claims Act (FCA).
James Segroves is a senior associate in the Health Care Department of Proskauer. His litigation-focused practice covers a diverse range of subject matters at both the trial and appellate levels of court systems throughout the United States, as well as matters before administrative tribunals.
James regularly represents defendants in litigation brought under the federal False Claims Act (FCA) and similar state legislation. For example, in 2011, James helped convince the United States District Court for the Southern District of New York to dismiss an FCA action brought against a major academic medical center seeking penalties and treble damages exceeding $1.5 billion. In dismissing the case with prejudice, the district court agreed that federal Medicare regulations did not expressly prohibit the accounting practice in question. "The worst that can be said of [the defendant-hospital]," the district court concluded, "that it took advantage of the uncertainty in the regulations to maximize its Medicare billings. This is not fraud." On August 16, 2012, the district court denied the relator's motion to reopen the case based on supposed "newly discovered" evidence, finding that the motion was untimely and lacked substantive merit.
Imagine you own a company that does business with a federal agency. The company’s contract with the agency specifies that the company will deliver widgets of a particular quality. The company delivers widgets to the agency. Years later, two former employees file a whistleblower action alleging that the company violated the FCA because the widgets did not live up to the contract’s specifications. The former employees sue the company for three times the amount of damages the government allegedly sustained, as well as millions of dollars in additional penalties. The case is tried to a jury, but after the former employees present their case, the district court grants the company’s motion to dismiss because the former employees’ legal theory misinterprets the FCA. The case eventually goes up to the U.S. Supreme Court, which unanimously agrees with the company and sends the case back down for further proceedings. Congress does not agree with the Supreme Court’s decision, however, so it decides to amend the FCA. In doing so, Congress uses language suggesting that certain of the amendments might apply retroactively to FCA cases that were pending two days before the Supreme Court’s decision.