Nesbitt v. Candler Cnty., 18-14484

• Decision Date: 03 January 2020
• Docket Number: No. 18-14484,18-14484
• Parties: Jamie NESBITT, Plaintiff-Appellant, v. CANDLER COUNTY, Georgia, d.b.a. Candler County Ambulance Service, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

945 F.3d 1355

Jamie NESBITT, Plaintiff-Appellant,

v.CANDLER COUNTY, Georgia, d.b.a. Candler County Ambulance Service, Defendant-Appellee.

No. 18-14484

United States Court of Appeals, Eleventh Circuit.

January 3, 2020

Anthony C. Lake, Gillen Withers & Lake, LLC, ATLANTA, GA, Thomas A. Withers, Gillen Withers & Lake, LLC, SAVANNAH, GA, for Plaintiff-Appellant.

Kenneth Duncan Crowder, Edmund A. Booth, Jr., David M. Stewart, Crowder Stewart, LLP, AUGUSTA, GA, for Defendant-Appellee.

Before ED CARNES, Chief Judge, BRANCH, and TJOFLAT, Circuit Judges.

ED CARNES, Chief Judge:

This case turns on what Congress meant when it said "because of" in the antiretaliation provision of the False Claims Act, 31 U.S.C. § 3730(h)(1). When we interpret the text of a statute, "we must presume that Congress said what it meant and meant what it said." United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc); accord, e.g., Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ; In re Thompson, 939 F.3d 1279, 1285 (11th Cir. 2019). Because of our obligation to presume that "because of" means "because of" and not something else, we affirm the judgment of the district court.

I.

The plaintiff, Jamie Nesbitt, started working as an emergency medical technician for Candler County’s ambulance service in 2006. Several years later one of his coworkers, Donald Greer, was promoted to be the new deputy director of the ambulance service. That was when Nesbitt’s problems began.

Nesbitt grew concerned about how Greer was instructing him and other staff members to fill out certain paperwork. Part of his job as an EMT was to complete a "trip report" after each ambulance ride to document the condition of the patient and the medical necessity of the ambulance service. Medicare relies on those reports when deciding whether to pay for the service. The narrative section of a trip report is especially important for billing purposes.

According to Nesbitt, when Greer became the deputy director he started pressuring the EMTs to write in their report narratives that patients were unable to walk, even if they could. That way Medicare would pay for more trips. Nesbitt believed that Greer was asking him to commit fraud, so he began complaining to Greer himself and other County officials.

After Nesbitt started complaining, Greer changed his schedule. Ordinarily the County EMTs worked two 24-hour shifts per week and were on call for two additional 24-hour days. The on-call days gave the EMTs a chance to pick up more overtime hours. Greer started putting Nesbitt on call for only the first half of a day instead of for the full 24 hours, which meant less overtime pay.

With Greer’s approval, Nesbitt began working another job at a private ambulance company called Meddixx. The County had a policy prohibiting EMTs from working side jobs without the approval of the ambulance service director. Greer was not the director, David Moore was. Nesbitt assumed that Moore somehow knew about his other job, but there’s no evidence that Moore did know about it, much less that he approved it.

The County fired Nesbitt in 2014. The five-member Board of Commissioners had the sole authority to hire and fire County employees. Usually when an employee was fired, the County Administrator or a department head would make the termination recommendation to an individual Board member, who would present the recommendation to the full Board. The Board would then discuss the recommendation and vote on it.

Greer and Moore started the process to terminate Nesbitt. They met with the County Administrator, William Lindsey, and told him that they wanted to fire Nesbitt because he would not follow orders and had violated the County’s policy on side jobs. The Board voted to terminate Nesbitt’s employment, and after that, Moore and Greer called him into Greer’s office and told him that he no longer worked for the County. They gave him a letter stating that he had been fired for two reasons: his unauthorized job with Meddixx and his refusal to fill out trip reports in "the proper way." Doc. 57-6.

II.

In August 2014 Nesbitt filed suit under the False Claims Act, 31 U.S.C. §§ 3729 – 3731, and the Georgia False Medicaid Claims Act, Ga. Code Ann. §§ 49-4-168 –168.6, alleging that the County had engaged in a fraudulent scheme related to billing for ambulance services and had fired him in retaliation for his whistleblowing. In June 2016 the United States intervened and reached a settlement with the County and Nesbitt. As part of the settlement, Nesbitt and the government voluntarily dismissed the fraud claims, but Nesbitt’s False Claims Act retaliation claim moved forward. In granting summary judgment for the County on that claim, the district court concluded that although Nesbitt had engaged in "protected conduct" he had not created a genuine issue of material fact that he had been fired because of that conduct. This is Nesbitt’s appeal.

III.

We review de novo the district court’s grant of summary judgment, considering all of the evidence in the light most favorable to the nonmoving party. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

IV.

The result in this case, as we have said, depends on the standard of causation that applies to retaliation claims under the False Claims Act. Nesbitt conceded at oral argument that if a but-for standard instead of a motivating factor standard applies, he loses.

A party can be held to concessions and admissions its counsel made at oral argument. Crowe v. Coleman, 113 F.3d 1536, 1542 (11th Cir. 1997). But there is a difference between concessions about the law and those about how the law applies and the result it produces given the facts of a specific case. Contrast Roberts v. Galen of Va., Inc., 525 U.S. 249, 253, 119 S.Ct. 685, 142 L.Ed.2d 648 (1999) ("[T]he concession of a point on appeal by respondent is by no means dispositive of a legal issue ...."); U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 448, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) ("[T]he Court of Appeals acted without any impropriety in refusing to accept what in effect was a stipulation on a question of law."); Bourdon v. U.S. Dep’t of Homeland Sec. (DHS), 940 F.3d 537, 547 n.6 (11th Cir. 2019) ("[T]he Government cannot concede away the proper interpretation of a statute ...."); and United States v. Lee, 586 F.3d 859, 866 (11th Cir. 2009) (refusing to accept the government’s concession as to the interpretation of a statutory term); with I.L. v. Alabama, 739 F.3d 1273, 1284 (11th Cir. 2014) ("The district court and the plaintiffs alike were entitled to rely on Alabama’s factual concession that taxes would rise if the court enjoined enforcement of Amendment 373 and to believe, given that concession, that no further evidence on the issue was needed."); Rozar v. Mullis, 85 F.3d 556, 565 (11th Cir. 1996) (accepting a party’s concession that there was no evidence that the defendants had violated the Fourteenth Amendment); and United States v. Gerber, 994 F.2d 1556, 1558 (11th Cir. 1993) (accepting a defendant’s concession that certain evidence was wrongly suppressed under the Fourth Amendment).

Nesbitt has conceded nothing about the proper causation standard, only that given the facts he will lose if the but-for standard applies. We accept his concession about the result of applying that standard to the facts of this case. Nesbitt loses under the but-for standard because it requires him to do what he cannot, which is to "show that the harm would not have occurred in the absence of[,] that is, but for" his protected conduct. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346–47, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) (quotation marks and dash omitted). To avoid losing, Nesbitt argues for application of the motivating factor standard. That more plaintiff-friendly standard requires only a showing that the protected conduct "was a motivating factor for any employment [decision], even though other factors also motivated the [decision]." See id. at 349, 133 S.Ct. 2517 (quoting 42 U.S.C. § 2000e-2(m) ). The result of this case depends on the choice between the but-for and the motivating factor causation standards.

That choice was made by Congress when it worded the relevant statutory provision:

Any employee shall be entitled to all relief necessary to make that employee whole, if that employee 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 in furtherance of an action under this section or other efforts to stop [one] or more violations of this subchapter.

31 U.S.C. § 3730(h)(1) (emphasis added) (references to contractors, agents, and associated others omitted).

"In construing a statute we must begin, and often should end as well, with the language of the statute itself." Steele, 147 F.3d at 1318 (quotation marks omitted). Here the crucial language is the phrase "because of." The work needed to interpret that phrase has been done for us in a pair of Supreme Court decisions. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) ; Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). They involved interpretation of nearly identical language in two other job discrimination statutes.

In Gross the Court decided the standard of causation for discrimination...