United States District Court, E.D. Pennsylvania
Alastair Crosbie is suing Highmark, Inc., Highmark Health
Options (“HHO”; with Highmark, Inc.,
“Highmark Defendants”), and Gateway Health Plan
for retaliating against Plaintiff in violation of the False
Claims Act. According to his complaint, Defendants terminated
Plaintiff because he opposed their working with a health care
provider who was ineligible to receive reimbursements from
the Highmark Defendants' and Gateway's Rule 12(b)(6)
Motions to Dismiss present similar arguments, the Court will
address both Motions together. The Motions present four basic
• First, the Highmark Defendants argue they did not have
an employer-employee relationship with Plaintiff. (Gateway
admits to employing Plaintiff.)
• Second, all Defendants argue Plaintiff is not a
protected “whistleblower” under the
anti-retaliation provision of the FCA, because
Plaintiff's complaint does not show Defendants could be
subject to a viable FCA action.
• Third, all Defendants argue Plaintiff did not engage
in conduct protected under the FCA anti-retaliation
• Fourth, all Defendants argue that Plaintiff failed to
put them on notice of any engagement in protected conduct.
• Fifth and finally, all Defendants argue Plaintiff did
not establish a causal connection between his alleged
protected conduct and subsequent termination.
reasons given below, Defendants' Motions to Dismiss will
Factual and Procedural History
Plaintiff's allegations in the Amended Complaint as true,
drawing all reasonable inferences in Plaintiff's favor,
the facts are as follows. Highmark and its subsidiary
corporation, HHO, contracted with Gateway to run a Managed
Care Organization (MCO). (Am. Compl. ¶¶ 13-18, ECF No.
17). To comply with federal integrity requirements,
Highmark and HHO established a “Payment
Integrity” department, and Highmark hired Plaintiff, an
“external” fraud expert, to investigate HHO's
third-party medical service providers. Id.
¶¶ 22-25. Highmark “administered”
Plaintiff's health benefits and corporate training, while
Gateway furnished his paychecks and, together with HHO,
employed Plaintiff's immediate supervisors. Id.
¶ 6, 66-69.
investigations uncovered defects in HHO's
provider-credentialing system and identified a provider, Dr.
Aslam, who was receiving Medicare/Medicaid reimbursements
through Defendants despite not being an “Approved
Provider.” Id. ¶¶ 36, 48, 65;
see also id. ¶ 51. Only “Approved
Providers” are eligible to see patients covered by
Medicare/Medicaid and receive reimbursements for the services
provided. Id. ¶¶ 31, 33.
reported this credentialing problem to his immediate
supervisors and upper management. Id. ¶¶
39, 41. After that failed, he “went outside his chain
of command to report to upper management that both Gateway
and Highmark were violating the False Claims Act by paying
vendors who were prohibited from receiving federal
funds.” Id. ¶ 41; see also id.
¶¶ 71- 75, 81. Plaintiff and his team also made
“a mandatory referral” concerning Dr. Aslam's
practices to the Delaware Department of Justice's
Medicaid Fraud Control Unit and cooperated with
investigators. Id. ¶ 104. Plaintiff made it
clear to corporate management that he was cooperating and
assisting in that investigation, and that the Defendants'
conduct with regards to Dr. Aslam could subject them to FCA
liability. Id. ¶ 105. Plaintiff was variously
rebuffed, ignored, put off, or told nothing could be done,
and the Defendants continued paying Dr. Aslam's
practices. Id. ¶¶ 66, 72-75, 80, 106-107.
September or October of 2018, Plaintiff
“intensified” his “efforts to get other
divisions of Highmark and Gateway to cease violating the
False Claims [A]ct.” Id. ¶¶ 108,
112, 114. That intensification included “more reports
outside his chain of command and exceeding his job
responsibilities by pressing the CCO and others to stop the
fraud being committed in other divisions of the
company.” Id. ¶ 115.
than a week later, he was terminated after a coworker, Elise
Kroop, accused him of directing a “noise that sounded
like a pig” at her. Id. ¶ 112-114, 122.
The allegation was made only hours prior to Plaintiff's
termination. Id. ¶ 120. This swift
termination was quite different from Defendants'
treatment of multiple harassment and stalking complaints he
had made about Kroop. Id. ¶¶ 118-121.
filed the Original Complaint on March 22, 2019. (ECF No. 1).
On May 22, 2019, Highmark and HHO, together, filed a Motion
to Dismiss. (ECF No. 5). Two days later, Gateway separately
filed a Motion to Dismiss Plaintiff's claim. (ECF No. 8).
Plaintiff was granted leave to amend his Original Complaint
on June 7, 2019. (ECF. No. 13). Plaintiff submitted an
Amended Complaint on June 28, 2019. (ECF No. 17).
Amended Complaint alleges his investigation of Dr.
Aslam's fraud and reporting to upper management of a
potential FCA violation constituted protected conduct under
the FCA's anti-retaliation provision, and the Defendants
knew he was engaged in such protected conduct. Id.
¶¶ 130, 135, 136. Plaintiff further alleges the
basis for his firing, the purported harassment, was a mere
pretext to conceal Defendants' retaliatory intent.
Id. ¶¶ 131-134. On July 12, 2019,
Defendants filed Motions to Dismiss Plaintiff's claim
pursuant to Rule 12(b)(6). (ECF Nos. 18, 19). Plaintiff
responded on August 9 (ECF Nos. 23, 24), and Defendants filed
replies on August 23 (ECF Nos. 25, 26).
survive a Rule 12(b)(6) motion, a complaint must contain
“sufficient factual matter, accepted as true, to
‘state a claim for relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). The Court in Iqbal explained
that, although a court must accept as true all of the factual
allegations contained in a complaint, that requirement does
not apply to legal conclusions; therefore, pleadings must
include factual allegations to support the legal claims
asserted. Iqbal, 556 U.S. at 678, 684.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. at 678 (citing Twombly,
550 U.S. at 555).