On September 20, 2019, the U.S. Court of Appeals for the District of Columbia Circuit reversed a district court judgment that had dismissed a retaliation case brought by a university veterinarian who was allegedly terminated for making internal and external complaints about the conditions in which laboratory animals were being maintained. Singletary v. Howard University, No. 18-7158 (D.C. Cir. Sept. 20, 2019). The appellate panel deciding the case split on the question of whether plaintiff was engaged in protected activity or was simply doing her job.

Plaintiff was a veterinarian employed by the defendant as the attending veterinarian of its medical school. She served on the defendant’s Institutional Animal Care and Use Committee (IACUC). As a recipient of federal grant funds, the defendant was subject to the standards under the Animal Welfare Act, administered by the U.S. Department of Agriculture, and the Health Research Extension Act, administered by the National Institutes of Health (NIH), which govern the conditions for maintaining laboratory animals used in biomedical research. Plaintiff’s complaint alleged that, on several occasions, she had complained internally about the ambient air temperatures in areas of the laboratory where mice were kept. Her complaints allegedly were not addressed within the university. When plaintiff discovered that certain mice had died from the heat, she complained about the conditions to NIH. Plaintiff’s complaints did not expressly assert that fraud was occurring. However, during the time frame at issue, the university was making certifications to the federal agencies as to its compliance with animal welfare standards. As a result of her complaints, plaintiff alleged, her appointment was shortened and her employment with the university terminated. Plaintiff brought suit under the anti-retaliation provision of the False Claims Act, 31 U.S.C. § 3730(h).

To make out such a retaliation claim, a plaintiff must show that she was engaged in protected activity and suffered an adverse employment action because of that activity. The latter point requires that the employer know that the employee was engaged in protected activity. Typically, a plaintiff whose job duties include bringing matters of regulatory compliance to the attention of the employer is not engaging in protected activity.

The majority opinion (Millett, J.) found that plaintiff had stated a cause of action. Although plaintiff had not directly accused the university of fraud, she had an objective reasonable belief that her communications were an effort either to correct or counteract false submissions of compliance already made by defendant to the government or to provide NIH with the information necessary to enforce its animal welfare standards.

As to whether the university had been placed on notice that the plaintiff was complaining about or attempting to stop fraud, the majority disagreed with the district court that the plaintiff was just doing her job. According to the majority, plaintiff was doing more than performing her caretaking duties as an attending veterinarian. Plaintiff’s complaints asserted that defendant was out of compliance with the conditions of its federal grants, and plaintiff went outside her chain of command by sending a complaint to NIH.

The dissenting opinion (Katsas, J.) saw the matter quite differently. The dissent concluded that the university was not on notice of fraud for two basic reasons. First, plaintiff never actually accused the university of fraud. Second, the allegations in plaintiff’s complaint did not overcome the presumption that arises when an employee tries to characterize the performance of normal job duties as “protected activity.” The complaints that plaintiff had made were all within the scope of her job as attending veterinarian. The complaints about ambient air temperature and compliance with animal welfare standards fell within her duties to oversee the animal welfare program of the university. Issues as to whether the university was in compliance with its grant conditions fell within her duties to consult about grants. And her complaints about animal welfare were part of her duties as a member of the defendant’s IACUC.

The debate between the majority and dissenting opinions in Singletary is an interesting example of a court drawing the line between protected activity covered by the anti-retaliation provision of the False Claims Act, and activity that is simply doing one’s job and is beyond the reach of that provision.