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The 1st U.S. Circuit Court of Appeals has affirmed a trial court judgment in favor of an employer in a whistleblower suit, finding no clear error in the judge’s finding of a lack of but-for causation.

After a four-day bench trial, U.S. District Court Judge Douglas P. Woodlock held that plaintiff-appellant Rosemary Morgan-Lee had not proven that her former employer, defendant Therapy Resources Management, LLC, had discharged her in violation of the whistleblower protections of the False Claims Act and the Rhode Island Whistleblowers’ Protection Act. The judge found that the plaintiff had engaged in some protected activity and that the employer had general corporate knowledge of her protected activity. Woodlock went on to find, however, that she had not shown that but for her protected conduct she would not have been discharged.

The plaintiff argued that the trial judge erred in using “but-for” causation.

“We have held that FCA retaliation claims are subject to the but-for causation standard. … A plaintiff ‘must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer,’” Judge Sandra L. Lynch wrote for the 1st Circuit panel.

“The majority of our sister circuits agree that but-for causation applies to FCA retaliation claims,” Lynch noted.

Woodlock correctly applied that standard in finding that Morgan-Lee had not shown by a preponderance of the evidence that her protected activity was a but-for...

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