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Difiore v. CSL Behring, LLC

United States Court of Appeals, Third Circuit

January 3, 2018

MARIE DIFIORE, Appellant
v.
CSL BEHRING, LLC

          Argued September 11, 2017

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 2-13-cv-05027) District Judge: Honorable Gerald A. McHugh.

          James A. Bell, IV ARGUED Jennifer Calabrese Bell & Bell John F. Kennedy Boulevard Counsel for Appellant

          David S. Fryman ARGUED Kelly T. Kindig Ballard Spahr Counsel for Appellee

          Before: VANASKIE, RENDELL and FISHER, Circuit Judges.

          OPINION

          FISHER, CIRCUIT JUDGE.

         Marie DiFiore asserted claims against her former employer, CSL Behring, for retaliation in violation of the False Claims Act, and for wrongful discharge under a theory of constructive discharge in violation of Pennsylvania state law. The False Claims Act ("FCA") includes an anti-retaliation provision for employee whistleblowers who engage in activity protected by the FCA. The District Court granted summary judgment to CSL Behring on the wrongful discharge claim because DiFiore had failed to show constructive discharge as a matter of law. For that same reason, the District Court did not permit DiFiore to argue that constructive discharge was an adverse action suffered in retaliation for protected activity. The FCA retaliation claim proceeded to trial. The judge instructed the jury that the FCA retaliation provision required that protected activity be the "but-for" cause of adverse actions against DiFiore. The jury found in favor of CSL Behring. DiFiore appeals the District Court's jury instruction using the "but-for" causation standard, the grant of summary judgment, and one additional jury instruction. For the reasons that follow, we affirm and hold that an employee's protected activity must be the "but-for" cause of adverse actions to support a claim of retaliation under the FCA.

         I.

         A. Factual Background

         DiFiore worked for CSL Behring from 2008 until her resignation in 2012, first as an Associate Director of Marketing/New Products, and then, after a promotion in August 2011, as Director of Marketing. While at CSL, and particularly after her promotion, DiFiore became concerned about the activities of CSL and its employees in marketing drugs for off-label use and including off-label use in sales forecasts. Off-label use is the unapproved use of an approved drug, or the use of a drug for purposes other than those that have been approved by the FDA. The incidents that prompted DiFiore's concerns included comments about off-label marketing strategies, relationships with medical device manufacturing companies, and discussions about fines issued to another company for off-label marketing. DiFiore expressed her concerns to her supervisors, and she contends that CSL initiated a third-party compliance audit in part because of her complaints.

         DiFiore alleges that as a consequence of her protected conduct, she suffered the following six adverse employment actions, all of which took place after her promotion to Director of Marketing.

         1. January 2012 Warning Letter

         DiFiore and another employee, Allan Alexander, were both on the launch team for a new drug. In the first month of this team's formation, DiFiore and Alexander clashed twice. In the first incident, Alexander and DiFiore had a disagreement over the telephone that culminated with Alexander abruptly hanging up on DiFiore. DiFiore complained to her supervisor about Alexander's unprofessional behavior. In the second incident, DiFiore and Alexander had a disagreement at a team meeting that was so heated that the supervisor had to order a break. Afterward, DiFiore met with the supervisor and another manager to discuss her behavior, and DiFiore claims they "scolded" her. Subsequently, both DiFiore and Alexander received warning letters from Human Resources in January 2012. After this incident, CSL hired an employment coach, at a cost of about $45, 000, to work specifically with DiFiore to develop her skills in leading the launch team.

         2. February 2012 Performance Review

         In a February 2012 mid-year performance review, DiFiore received "needing improvement" evaluations in several areas, including team leadership. Before her promotion, she consistently received "strong" or "outstanding" evaluations. In response to this review, DiFiore wrote a letter expressing her belief that the criticism and lower ratings were due to her complaints about Alexander and her statements to auditors regarding compliance matters.

         3. February 2012 Warning Letter

         Also in February 2012, DiFiore received a warning letter regarding her nonpayment of her company credit card. The credit card company had canceled her card because it was more than 180 days past due. DiFiore stated in her deposition that this warning letter was "appropriate." DiFiore did not know whether anyone in a similar situation was disciplined, but she believed that others ...


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