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No evidence that failure to hire firefighter was retaliation for father’s qui tam suit

By Victoria Moran, J.D.

Affirming summary judgment against an Indianapolis Fire Department (IFD) applicant’s retaliation claims, the Seventh Circuit found he had not shown that he either should have been an automatic selection for an academy class and he was not, or that the fire chief exhausted “two-marker” applicants for discretionary selections and still did not select After he was not selected, the applicant joined his father’s (who was an investigator for the IFD) existing qui tam suit against the IFD alleging he was not hired because of his father’s complaint. While the claim raised a question about the scope of the False Claims Act’s (FCA) retaliation provisions, the Seventh Circuit did not need to reach that issue on appeal because there was no evidence that the suit was a factor in the hiring decision (Heath v. Indianapolis Fire Department, May 9, 2018, Kanne, M.).

Application process. In 2015, the applicant applied to become an Indianapolis firefighter and did well enough to be placed on a ranked list for hiring. IFD applicants are placed on a ranking list according to their scores on various tests, and the hiring is governed by local ordinances requiring 80 percent of an academy class to be filled in rank order, with the remaining 20 percent to be filled based on the fire chief’s discretion. However, the IFD has selection criteria the fire chief must use, preferring applicants with two or more “markers” such as racial minorities, females, applicants with college degrees, and legacies.

FCA doesn’t protect applicants from retaliation? Around the time of his application, the applicant’s father, then a backup investigator for the IFD’s arson unit, filed a qui tam suit under the FCA alleging the IFD made false statements in order to receive federal grant funds. After the applicant was not selected for either of the two academy classes, he joined his father’s suit alleging the IFD violated the FCA by retaliating against him because of his father’s suit. The district court granted summary judgment on the applicant’s retaliation claim, finding that the FCA’s anti-retaliation provisions do not cover applicants or prospective employees.

Causation standard. On appeal, the Seventh Circuit declined to address whether the FCA’s anti-retaliation provisions cover applicants and prospective employees because, even applying a broad interpretation of “employee” that would cover applicants and prospective employees, the IFD was still entitled to summary judgment. Section 3730(h)(1) required that the unsuccessful applicant show he was retaliated against because of his father’s protected activity, and he could not do so. Although the appeals court briefly acknowledged the existing question of the proper causation standard the applicant must meet to show he was retaliated against (but-for or mixed-motive), it concluded that the standard did not matter because the applicant failed to provide evidence that would permit a jury to conclude he was not hired because of his father’s suit.

No evidence of retaliation. To survive summary judgment, the applicant had to demonstrate either (1) that he should have been an automatic selection for an academy class and he was not, or (2) that the chief exhausted “two-marker” applicants for discretionary selections and still did not select him. Only then could a reasonable trier of fact have any evidence from which to conclude that his father’s qui tam suit motivated, at least in part, the IFD’s decision not to hire him. But the applicant could not show that he should have been an automatic selection for one of the academy classes. At best, he was ranked five spots too low to qualify for automatic selection. In addition, the discretionary picks for both classes had two or more markers—more than the applicant—and more than ten two-marker applicants still remained on the list who were not selected. The only marker the applicant had was his legacy status because of his father’s employment. Accordingly, the Seventh Circuit affirmed summary judgment against the applicant’s retaliation claim.