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Eleventh Circuit rules that “but-for” test applies in determining whether employer’s firing of alleged whistleblower was a retaliatory act sanctionable under False Claims Act Fla. R. Jud. Admin. 2.516

On January 3, 2020, in Nesbitt v. Candler County, No. 18-14484, the Eleventh Circuit Court of Appeals affirmed a district court’s summary judgment for the defendant county in a case filed by a former county employee alleging that he was fired in retaliation for his whistleblower activities, in violation of the antiretaliation provision of the False Claims Act, 31 U.S.C. § 3730(h)(1). The issue before the Court of Appeals was the standard of causation that applies to retaliation claims under the False Claims Act, with the plaintiff conceding that if a “but-for” standard instead of a “motivating factor” standard applied to the termination, the defendant should prevail. The relevant language from the statute refers to retaliatory acts occurring “because of” an employee’s whistleblower activities. The Eleventh Circuit concluded that this dictated use of the “but-for” standard. The Court noted that the “because of” language in the statute was materially identical to language in the Age Discrimination and Employment Act of 1967 which has been interpreted by the U.S. Supreme Court to dictate such a standard, see Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), and to language in 41 U.S.C. § 200e3(a), the antiretaliation provision of Title VII, which the Supreme Court has also held dictates such a standard, see Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). The Eleventh Circuit noted that that there is a Circuit split on this issue, with the Third and Fifth Circuits applying the “but-for” standard, see DiFiore v. CSL Behring, LLC, 879 F.3d 71, 76–78 (3d Cir. 2018), and United States ex rel. King v. Solvay Pharm., Inc., 871 F.3d 318, 333 (5th Cir. 2017) and the District of Columbia, Sixth and Seventh Circuits applying the “motivating factor” standard, see Singletary v. Howard Univ., 939 F.3d 287, 293 (D.C. Cir. 2019), United States ex rel. Ziebell v. Fox Valley Workforce Dev. Bd., Inc., 806 F.3d 946, 953 (7th Cir. 2015), and McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508, 518 (6th Cir. 2000).

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