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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11618
____________________
EMESE SIMON,
M.D., ex rel,
FLORIDA REHABILITATION ASSOCIATES, PLLC,
Plaintiffs-Appellants,
STEPHEN BERKES,
M.D., ex rel,
Plaintiff,
versus
HEALTHSOUTH OF SARASOTA LIMITED PARTNERSHIP,
an Alabama Limited Partnership, et al.,
Defendants,
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2 Opinion of the Court 21-11618
HEALTHSOUTH REAL PROPERTY HOLDINGS, LLC,
a Delaware Limited Liability Company,
HEALTHSOUTH CORPORATION,
a Delaware corporation now known as Encompass Health
Corporation Florida,
ENCOMPASS HEALTH REHABILITATION HOSPITAL OF
SARASOTA LLC,
a Delaware limited liability company,
f.k.a. Healthsouth Rehabilitation Hospital of Sarasota, LLC,
f.k.a. Healthsouth of Sarasota Limited Partnership,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:12-cv-00236-VMC-AEP
____________________
Before WILSON, BRANCH, and TJOFLAT, Circuit Judges.
PER CURIAM:
This appeal relates to a retaliation claim brought under the
False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. The appellant,
Dr. Emese Simon, originally asserted qui tam and retaliation claims
under the FCA against HealthSouth entities. The original
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21-11618 Opinion of the Court 3
complaint alleged that HealthSouth employees submitted
fraudulent statements to the government to defraud Medicare and
Medicaid, specifically those involving the allegedly fraudulent
diagnosis of disuse myopathy. The United States did not intervene
in the case and later settled with HealthSouth. Simon’s qui tam
claims were dismissed through a joint stipulation of dismissal, but
the district court retained her claim for retaliation under 31 U.S.C.
§ 3730(h). In that claim, Simon alleged that she complained to
HealthSouth about the use of allegedly false diagnoses, and,
because of her complaints, Simon faced various adverse
employment actions and was ultimately constructively discharged.
The district court granted summary judgment for HealthSouth,
finding that Simon could not show that she had an objectively
reasonable belief that HealthSouth was violating the FCA given the
facts presented. Because we agree with the district court that an
employee needs at least an objectively reasonable belief to recover
for retaliation under the FCA, and because Simon cannot show one
here, we affirm.
I. Background
The FCA “prohibit[s] making false claims for payment to the
United States.” Hickman v. Spirit of Athens, Ala., Inc., 985 F.3d
1284, 1287 (11th Cir. 2021) (quotations omitted). As relevant here,
the FCA allows private plaintiffs “with knowledge of false claims
against the government” to file “qui tam” actions—recovery
lawsuits brought on the government’s behalf. Id. at 1287–88; see
also 31 U.S.C. § 3730(b). The FCA also creates a private right of
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4 Opinion of the Court 21-11618
action for an individual whose employer retaliates against her for
participating in an FCA action or in response to other efforts the
employee engages in to oppose a violation of the FCA. Id.
§ 3730(h)(1); see Hickman, 985 F.3d at 1287–88 (discussing the
evolution of the False Claims Act and its retaliation provision);
accord United States ex rel. Hunt v. Cochise Consultancy, Inc., 887
F.3d 1081, 1086 (11th Cir. 2018) (discussing the three different
enforcement mechanisms of the FCA). It protects employees
against retaliation for conduct that is “in furtherance of an action
under [the FCA] or other efforts to stop 1 or more violations” of
the FCA. 31 U.S.C. § 3730(h)(1). The FCA also protects contractors
from retaliation. See id. § 3730(h).
Defendants (collectively “HealthSouth”) operate a for-profit
inpatient rehabilitation facility (IRF) in Sarasota, Florida. Medicare
and Medicaid training materials establish that the decision to admit
a patient to an IRF must be made by a physician and “cannot be
delegated to a physician extender.” 1
In addition, to be classified as an IRF and thus qualify for
reimbursement by the Centers for Medicare and Medicaid Services
(CMS) through a prospective payment system, 2 a hospital must
1
A physician extender is a medical professional that is not a doctor, such as a
physician assistant, nurse practitioner, or clinical nurse specialist.
2
Under Medicare and Medicaid, a prospective payment system allows for
“payment for the operating and capital-related costs of inpatient hospital
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serve an “inpatient population of whom at least 60 percent required
intensive rehabilitation services for treatment of one or more of [13
specific] conditions” (“CMS 13”) or for treatment of one of those
conditions as a serious comorbidity that “has caused significant
decline in functional ability in the individual.” 42 C.F.R.
§ 412.29(b)(1)–(2).
The government bases IRF funding compliance, in part, on
the inpatient rehabilitation facility’s submission of diagnostic codes
to CMS. These codes are known as the International Classification
of Diseases, 10th Revision, Clinical Modification (ICD-10-CM)
codes and are submitted through an IRF-Patient Assessment
Instrument which has “patient clinical, demographic, and other
information, which helps classify patients into payment groups
based on clinical characteristics and expected resource needs.”
The plaintiff Simon is a physiatrist, a specialty doctor who
focuses on “in patient rehabilitation” and “neurological injuries,”
who operated an outpatient medical practice through her
company, Florida Rehabilitation Associates, in the Sarasota,
Florida area. Simon was also an attending physician with admitting
privileges at HealthSouth Sarasota Hospital and had Medical
Direction Services and independent contractor agreements with
HealthSouth. She claims that in 2006, HealthSouth began
services furnished by hospitals subject to the systems (generally, short-term,
acute-care hospitals) [to be] made on the basis of prospectively determined
rates and applied on a per discharge basis.” 42 C.F.R. § 412.1.
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6 Opinion of the Court 21-11618
encouraging her and other physicians to use a diagnoses of disuse
myopathy for their patients, representing to the doctors that such
a diagnosis qualified as one of the 13 specified conditions in 42
C.F.R. § 412.29(b)(2). According to Simon,
A true myopathy is a muscle disease. The condition
of myopathy has widely varying etiologies, including
congenital or inherited, idiopathic, infectious,
metabolic, inflammatory, endocrine and even drug-
induced or toxic. These etiologies that result in
myopathy, which have symptoms such as proximal
muscle weakness, impaired functions of daily life,
and, rarely, muscle pain and tenderness, should
properly be coded as ICD-9 Code 359.89.
Simon, however, believed that disuse myopathy was a
fraudulent diagnosis created by HealthSouth to generate more
CMS 13 diagnoses to meet the 60% threshold for IRF classification
and Medicaid funding. Simon alleges that when she complained
about the internal directive and refused to diagnose patients
fraudulently, HealthSouth constructively discharged her by
threatening, demoting, and investigating her, as well as by limiting
her admitting privileges and restricting the assignment of her
patients to her.
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Although Simon never complained in writing about alleged
fraud, 3 she maintains she made the following verbal complaints.
According to her declaration, Simon—between 2008 and 2012—
“made numerous complaints about the use of false diagnoses to
ensure that patients who were unfit physically were nonetheless
admitted to HealthSouth Sarasota.” She made these verbal
complaints in meetings with Dan Eppley (the CEO of HealthSouth
Sarasota until summer 2010) and Marcus Braz (the next CEO),
informing them that “the improper use of the codes for disuse
myopathy . . . amounted to fraud.” She also informed
HealthSouth’s Medical Director Alexander DeJesus that using false
diagnoses of disuse myopathy was fraudulent. Furthermore, she
“publicly objected” to a March 2010 presentation and PowerPoint
3
Simon averred that she did not mention “any fraud, false diagnoses or false
billing to the government” in any letter to the executives of HealthSouth
because she “thought it best to avoid putting the topic in writing to help
preserve [her] position at HealthSouth Sarasota for financial reasons.”
During her time at HealthSouth, Simon lodged various complaints in writing
about other issues, however. For instance, Simon complained multiple times
over the years to the executives of HealthSouth about its practice of
distributing patients to its physicians based on their geographical location, and
she requested that it be discontinued. These complaints often recounted
allegedly unpleasant conversations that Simon had with HealthSouth’s
Medical Director, Dr. Alexander DeJesus. Her written complaint details a
conversation with Dr. DeJesus over the distribution of patients, during which
he purportedly “threatened [her] ‘not to ever challenge’” how Dr. DeJesus
distributed patients among the doctors.
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8 Opinion of the Court 21-11618
on disuse myopathy provided by Lupe Billalobos, HealthSouth’s
former National Healthcare Information Management Director,
West. 4 Simon claims that she stated: “I’ve never heard of this. I’ve
never read about it. Disuse myopathy is not existent. Cannot use
it.” 5
After the March 2010 presentation, both Dr. DeJesus and Dr.
Hume investigated the disuse myopathy diagnosis and began using
it. Further, HealthSouth produced the expert report of Dr. Randall
Braddom, a rehabilitation physician with 51 years of practice, and
former President of the American Academy of Physical Medicine
& Rehabilitation, who opined that “Disuse Myopathy is
Histologically and Clinically an Accurate and Appropriate
Diagnosis.”
4
As part of her job duties, Billalobos made presentations at HealthSouth
Sarasota and other hospitals and educated physicians on how to document the
diagnoses so that coders could accurately code them for purposes of CMS
billing.
Billalobos testified that disuse myopathy was a type of “myopathy not
elsewhere classified,” a subcategory under the broader myopathy label. At the
March 2010 presentation, the slide on disuse myopathy as a CMS 13 diagnosis
stated that “there are no good, reliable, definitive references for use of this
diagnosis.”
5
Both Dr. Daniel Hume, a doctor at HealthSouth who attended the same
presentation, and the presenter, Billalobos, testified that they did not hear
Simon voice an objection to disuse myopathy.
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Even Simon herself used the disuse myopathy diagnosis.
When shown medical records she completed, Simon admitted that
she diagnosed patients with disuse myopathy for months
immediately following the March 2010 presentation. Simon
testified that she did so “mostly [because of] pressure” being put on
her by certain people at the hospital. She further testified that she
was told to “watch out and play by the rules” or she would be fired
and that she was promised supporting documentation for the
legitimacy of the diagnosis which was never given to her. But
when asked about a specific patient whom Dr. Hume had
diagnosed with disuse myopathy, among other things, Simon
admitted that “[e]very physician could have a different opinion.”
Simon further admits that physiatrists can disagree over the
appropriate diagnosis for a patient and that she and Dr. DeJesus
likely had a difference of opinion on disuse myopathy.
In November 2010, the Medical Executive Committee of
HealthSouth initiated an investigation of Simon after she
completed history and physical forms for a patient who had not yet
been admitted to HealthSouth Sarasota and whom she had not
examined. HealthSouth’s CEO Braz averred that he decided to
stop assigning patients to Simon pending the results of the
investigation which ended in January 2011. Simon could not admit
patients unless she had a signed letter from the referring doctor that
they wanted her to take care of their patients. Braz informed
Simon of this change in assignments in November 2010 but the
restrictions were not lifted after the investigation.
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Accordingly, in November 2010 Simon procured 25 letters
from local doctors who stated generally that they wanted their
patients treated by Simon, but Dr. DeJesus allegedly ignored these
letters unless each individual patient referral order specifically
mentioned Simon. In January 2011, the medical executive
committee conducting the investigation concluded that Simon’s
incident was an “isolated error” and instituted six months of
monitoring to ensure that her documentation satisfied
requirements. The monitoring period ended without incident.
In February 2012, HealthSouth terminated Simon’s Medical
Direction Agreement, which required her to work 10 hours per
month as a medical director of the spinal cord injury program, but
did not terminate her medical staff membership or privileges at the
hospital. On or about April 16, 2012, Simon requested and was
granted a medical leave of absence.6 Simon did not return to
HealthSouth Sarasota once her leave was complete and allowed
her admitting privileges to expire.
II. Procedural History
Simon filed a qui tam action under seal on February 3, 2012,
alleging that HealthSouth had engaged in various acts of fraud
6
Simon said that before she got sick, she had already planned to take leave
because at that point she had been stripped of all but two patients and could
not earn a living.
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21-11618 Opinion of the Court 11
against the government, 7 as well as the fraudulent use of the disuse
myopathy diagnosis. She included multiple counts for violations
of the FCA, including a retaliation claim under 31 U.S.C. § 3730(h).
In June 2019, the United States intervened for the purposes of
settlement. Thereafter, the United States settled with HealthSouth
and filed a joint stipulation with Simon, seeking dismissal with
prejudice of all FCA claims except Simon’s claim for retaliation, her
claim for attorney’s fees and costs, and some related claims
asserting that HealthSouth committed fraud against the State of
Florida.
In July 2019, the Court dismissed Simon’s qui tam action
with prejudice but retained jurisdiction “to resolve any claims from
[Simon] pursuant to [the FCA’s retaliation provision], as well as any
claims for attorney’s fees and costs . . . and claims related to fraud
on the State of Florida.”
Thereafter, Simon and Florida Rehabilitation Associates,
PLLC, “a Florida professional limited liability company which is
wholly owned and operated by [] Simon,” filed a Third Amended
Complaint.8 In it, Simon alleged that she had engaged in protected
conduct under the FCA by objecting multiple times between early
2008 and her constructive discharge in 2012 to HealthSouth’s
practice of falsifying diagnoses such as disuse myopathy so that
7
These other acts of fraud are not at issue in this appeal.
8
Simon’s Third Amended Complaint did not include any state law claims.
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12 Opinion of the Court 21-11618
patients could be admitted to meet the hospital’s 60% rule for IRF
claims and by filing a qui tam action in February 2012. She
maintained that between 2008 and 2012, HealthSouth harassed and
demoted her because of her protected conduct, leading to her
constructive discharge in 2012, in violation of the FCA’s retaliation
provision, 31 U.S.C. § 3730(h).
The retaliation case proceeded through discovery and the
parties cross-moved for summary judgment as to whether Simon
could make a prima facie case of retaliation. Specifically,
HealthSouth argued Simon could not show she had engaged in
protected activity because she could not show she had an
objectively reasonable belief that HealthSouth submitted false
claims based on disuse myopathy. Simon moved for partial
summary judgment arguing she had made a prima facie case for
retaliation. The district court granted HealthSouth’s motion for
summary judgment and denied Simon’s.
The district court explained that the FCA’s retaliation
provision protects two types of conduct: (1) conduct in furtherance
of FCA litigation, and (2) other efforts to stop violations of the FCA.
Simon’s conduct fell under the second prong, which meant that to
make a prima facie case for retaliation she needed to show she
engaged in protected activity to stop violations of the FCA. The
district court noted that other courts have held that a party
claiming protection under the second clause must have an
objectively reasonable belief that an employer was engaged in
violations of the FCA. Therefore, the court reasoned that Simon
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needed to show that she had not only a subjective belief that
HealthSouth was violating the FCA, but that this belief was
objectively reasonable in light of the facts and record presented.
The district court noted that because a reasonable difference in
medical opinion on the validity of a diagnosis does not create a false
claim for purposes of the FCA, Simon’s belief that disuse myopathy
was fraudulent was not objectively reasonable. The district court
also noted that Simon had no knowledge of HealthSouth’s billing
practices and never saw the bills sent to the government. Thus,
she had no objectively reasonable belief that HealthSouth actually
submitted such claims to the government. Simon timely appealed
from the grant of summary judgment in HealthSouth’s favor.
III. Standard of Review
We review the district court’s grant of summary judgment
de novo, viewing all facts and reasonable inferences in the light
most favorable to the nonmoving party, and applying the same
standard as the district court. Rodgers v. Singletary, 142 F.3d 1252,
1253 (11th Cir. 1998).
IV. Discussion
Simon argues that the district court improperly heightened
the objective standard for a False Claims Act retaliation claim. She
argues that under the proper standard, she presented sufficient
facts to support an objectively reasonable belief that fraud was
occurring at HealthSouth. Additionally, she argues that there is a
genuine issue of material fact as to the reason for Simon’s
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termination and the causal connection between her protected acts
and constructive discharge.
The retaliatory discharge provision of the False Claims Act
states:
(h) Relief from retaliatory actions.—
(1) In general.—Any employee, contractor, or agent
shall be entitled to all relief necessary to make that
employee, contractor, or agent whole, if that
employee, contractor, or agent is discharged,
demoted, suspended, threatened, harassed, or in any
other manner discriminated against in the terms and
conditions of employment because of lawful acts
done by the employee, contractor, agent or
associated others in furtherance of an action under
this section or other efforts to stop 1 or more
violations of this subchapter.
31 U.S.C. § 3730(h)(1). 9
9
Similar to the antiretaliation provision of the FCA, Title VII’s antiretaliation
provision provides that:
It shall be an unlawful employment practice for an employer
to discriminate against any of his employees or applicants for
employment, for an employment agency, or joint labor-
management committee controlling apprenticeship or other
training or retraining, including on-the-job training programs,
to discriminate against any individual, or for a labor
organization to discriminate against any member thereof or
applicant for membership, because he has opposed any
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In an FCA retaliation case, as in a Title VII retaliation case, a
plaintiff “must begin by establishing a prima facie case,” by
showing that “(1) she engaged in statutorily protected activity, (2)
an adverse employment action occurred, and (3) the adverse action
was causally related to the plaintiff’s protected activities.” Little v.
United Techs., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir.
1997). 10 We resolve Simon’s appeal at the first step of this
framework. Because Simon did not engage in statutorily protected
activity the district court correctly granted summary judgment as
to her FCA retaliation claim.
practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a).
10
Other circuits have used this Title VII framework in a FCA retaliation case.
See, e.g., Harrington v. Aggregate Indus. Ne. Region, Inc., 668 F.3d 25, 32 (1st
Cir. 2012) (citing to a Title VII case for knowledge element to establish prima
facie case); DiFiore v. CSL Behring, LLC, 879 F.3d 71, 77–78 (3d Cir. 2018)
(discussing Title VII retaliation to determine the causation standard for FCA
retaliation); United States ex rel King v. Solvay Pharms., Inc., 871 F.3d 318,
333 (5th Cir. 2017) (same); United States ex rel. Felten v. William Beaumont
Hosp., 993 F.3d 428, 432 (6th Cir. 2021) (applying Title VII definition of
employee to same term in FCA retaliation provision). Similarly, in Nesbitt v.
Candler County, 945 F.3d 1355, 1358–59 (11th Cir. 2020), we noted the
similarity between the antiretaliation provisions of the FCA and Title VII,
holding “the but-for causation standard applies to claims under the
antiretaliation provision of the [FCA] just as it does to the antiretaliation
provision of Title VII . . . .”
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16 Opinion of the Court 21-11618
We begin our analysis by setting out the applicable legal
standard for evaluating the “statutorily protected activity” element
of an FCA retaliation claim. The False Claims Act prohibits any
person from “knowingly present[ing], or causing] to be presented,
a false or fraudulent claim for payment or approval.” 31 U.S.C.
§ 3729(a)(1)(A). The FCA antiretaliation provision protects
employees or contractors, like Simon, from being targeted for
(1) “lawful acts done . . . in furtherance of an action under [the
FCA]” and (2) “other efforts to stop 1 or more violations of this
subchapter.” 31 U.S.C. § 3730(h)(1); see also Hickman, 985 F.3d at
1288.
We previously assumed without deciding that a plaintiff,
like Simon, who argues that her conduct was in the form of “other
efforts” to stop a FCA violation11 must at least show that she had
an objectively reasonable belief that her employer violated the FCA
to establish that she engaged in protected activity. Hickman, 985
F.3d at 1289. 12 The parties here do not dispute that the objectively
11
Neither party argued below or on appeal that the first form of protected
action, engaging in “lawful acts . . . in furtherance of” a FCA action, applied to
Simon’s conduct at issue in this retaliation action, even though she filed a qui
tam action in 2012. Thus, we do not consider whether Simon engaged in
statutorily protected activity in this manner.
12
In Hickman, we noted that before the FCA retaliation provision was
amended in 2009 and 2010, we held that “employees were protected when a
False Claims Act filing by either the employee or the government, was a
distinct possibility at the time the assistance was rendered.” Hickman, 985
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reasonable belief standard applies, so we again assume without
deciding that this is the applicable standard.
There is no dispute that Simon possessed a sincere,
subjective belief that HealthSouth was committing fraud by using
a fabricated disuse myopathy diagnosis. Instead, the parties
dispute, and the district court’s decision hinged on, the objective
reasonableness of that belief. Our decision today is guided by our
recent False Claims Act decision in Hickman. In that case, we
explained what objectively reasonable belief looks like:
[Employees are] at a minimum, required to show that
the activity they were fired over had something to do
with the False Claims Act—or at least that a
reasonable person might have thought so. And the
False Claims Act requires a false claim; general
allegations of fraud are not enough. After all, liability
under the Act arises from the submission of a
fraudulent claim to the government, not the
disregard of government regulations or failure to
maintain proper internal procedures.
F.3d at 1288 (quotations omitted). Therefore, the question in Hickman was
whether, post amendment, an employee would still have to show that a False
Claims Act filing was a distinct possibility for the employee’s conduct to
qualify as protected activity or if an employee only had to show a “reasonable
belief” that the employer was violating the FCA at the time the employee
acted. Id. at 1288–89. Because the court found that the plaintiff could not
meet the “reasonable belief” standard, we proceeded without deciding what
standard applied. Id. at 1289.
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That requirement matters. An organization
might commit, and its employees might believe it has
committed, any number of legal or ethical
violations—but the Act’s retaliation provision only
protects employees where the suspected misdeeds
are a violation of the False Claims Act, not just of
general principles of ethics and fair dealing. It is not
enough for an employee to suspect fraud; it is not
even enough to suspect misuse of federal funds. In
order to file under the False Claims Act, whether in a
qui tam or a retaliation action, an employee must
suspect that her employer has made a false claim to
the federal government.
Hickman, 985 F.3d at 1289 (internal citations and quotations
omitted).
Simon cannot meet the burden of showing she had an
objectively reasonable belief that HealthSouth was submitting false
claims to the government. While she has established that she
subjectively believed that HealthSouth was improperly
encouraging employees and contractors to diagnose patients with
disuse myopathy—a condition which she maintains does not
exist—and were fraudulently billing for that diagnosis, “general
allegations of fraud are not enough.” Id. Instead, “the False Claims
Act requires a false claim.” Id. Therefore, to survive a motion for
summary judgment, Simon must provide facts that establish that
she had a “‘reasonable belief’ that a False Claim Act violation ha[d]
occurred”—that a false claim for payment was submitted to the
government. Id. However, Simon has not established that disuse
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myopathy is not a valid condition such that it is a false claim to
submit billing based on it for government reimbursement.
While Simon testified to her own belief in the illegitimacy of
the disuse myopathy diagnosis, she offered no evidence that she
had an objectively reasonable belief that the doctors who
diagnosed their patients with disuse myopathy did so purposefully
and wrongly to fraudulently receive money from the government.
Thus, she had no objectively reasonable belief that fraudulent
billing—i.e., a false claim—was occurring. Dr. DeJesus and Dr.
Hume testified that they believed disuse myopathy to be
legitimate. Additionally, Simon herself admitted to diagnosing her
patients with disuse myopathy and agreed that doctors can
disagree about diagnoses. And while Simon claimed she “felt
pressure” to use the diagnosis, she did not say her own diagnoses
of the condition were false or fraudulent.
Moreover, in United States v. AseraCare, Inc., 938 F.3d 1278
(11th Cir. 2019), we explained that
a reasonable difference of opinion among physicians
reviewing medical documentation ex post is not
sufficient on its own to suggest that those
judgments—or any claims based on them—are false
under the FCA. A properly formed and sincerely held
clinical judgment is not untrue even if a different
physician later contends that the judgment is wrong.
Id. at 1297. In other words, Simon’s medical opinion that disuse
myopathy is not a legitimate diagnosis does not establish that the
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20 Opinion of the Court 21-11618
judgments of other doctors who diagnosed disuse myopathy—or
any claims based on those doctors’ judgments—were false for
purposes of the FCA.
Simon argues that the standard in AseraCare, established in
the context of a FCA claim brought by the government under 31
U.S.C. § 3729, is not relevant to making a prima facie case for a
reasonable belief of fraud in a FCA retaliatory discharge claim
under 31 U.S.C. § 3730(h)(1). She argues that a heightened
standard of falsity applies to claims for FCA fraud but not claims
for FCA retaliatory discharge. Yet in Hickman, we clarified that
“the False Claims Act requires a false claim,” including retaliation
claims under the FCA, and “general allegations of fraud are not
enough.” Hickman, 985 F.3d at 1289. Additionally, in the Title VII
retaliatory discharge context, we have held that “[t]he objective
reasonableness of an employee’s belief that her employer has
engaged in an unlawful employment practice must be measured
against existing substantive law.” See Clover v. Total Sys. Servs.,
Inc., 176 F.3d 1346, 1351 (11th Cir. 1999); see also Harper v.
Blockbuster Ent. Corp., 139 F.3d 1385, 1388 n.2 (11th Cir. 1998)
(stating that, in the Title VII context, while “[t]he plaintiffs also
argue that when judging the reasonableness of their belief, we
should not charge them with substantive knowledge of the
law . . . [w]e reject the plaintiffs’ argument because it would
eviscerate the objective component of our reasonableness
inquiry”). Therefore, Simon must provide facts showing that a
“reasonable person” might have thought that a false claim, which
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cannot consist of “difference[s] of opinion among physicians,” was
being conveyed to the government for money. See id.; AseraCare,
938 F.3d at 1297. She has not done so.13
Finally, Simon cites to HealthSouth’s settlement agreement
with the government and the DOJ’s press release about the case as
evidence that her belief in the False Claims Act violation was
objectively reasonable. However, “courts don’t consider
settlements as evidence of the validity of underlying claims.”
Morrissey v. United States, 871 F.3d 1260, 1271 (11th Cir. 2017); see
also Fed. R. Evid. 408 (explaining that evidence of a settlement
cannot be used “to prove or disprove the validity or amount of a
disputed claim”). Additionally, allegations from Simon’s qui tam
suit cannot be used as evidence of the validity and reasonableness
13
To show that the diagnoses were false, Simon could have submitted
evidence of the “certifying physician fail[ing] to review a patient’s medical
records or otherwise familiarize himself with the patient’s condition before”
diagnosing that patient. AseraCare, 938 F.3d at 1297. Additionally, Simon
could have produced evidence showing that Dr. Hume or Dr. DeJesus, or
even she herself, “did not, in fact, subjectively believe that [the] patient [had
disuse myopathy] at the time of certification.” Id. She also could have
produced expert testimony showing “that no reasonable physician could have
concluded that a patient [had disuse myopathy] given the relevant medical
records.” Id. As we explained in AseraCare, “[i]n each of these examples, the
clinical judgment on which the claim is based contains a flaw that can be
demonstrated through verifiable facts.” Id.
USCA11 Case: 21-11618 Date Filed: 08/31/2022 Page: 22 of 22
22 Opinion of the Court 21-11618
of her belief in fraudulent activity by HealthSouth because the
mere existence of pleadings does not prove reasonableness. See
Wright v. Farouk Sys., Inc., 701 F.3d 907, 911 n.8 (11th Cir. 2012)
(“[The plaintiff] also contends that the district court abused its
discretion by not considering the complaints she proffered from
other lawsuits. That contention is without merit because pleadings
are only allegations, and allegations are not evidence of the truth
of what is alleged.”).
Because Simon cannot show that she possessed a
“reasonable belief” that HealthSouth violated the FCA, she cannot
show that she engaged in statutorily protected conduct and was
retaliated against as a result, in violation of § 3730(h). Accordingly,
we affirm.
AFFIRMED.