USA ex rel, Morgan-Lee v. The Whittier Health Network, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ROSEMARY MORGAN-LEE, )

)

Plaintiff ) CIVIL ACTION NO.

) 13-11997-DPW

)

v. )

)

THERAPY RESOURCES MANAGEMENT, )

LLC )

)

Defendant. )

MEMORANDUM

OF

FINDINGS OF FACT

AND

CONCLUSIONS OF LAW

REGARDING

JUDGMENT FOR DEFENDANT

WITH RESPECT TO

RETALIATION CLAIMS

November 13, 2023

TABLE OF CONTENTS

I. OVERVIEW................................................... 5

II. PROCEDURAL OVERVIEW........................................ 7

III. FINDINGS OF FACT.......................................... 9

A. Background ............................................ 9

B. Ms. Morgan-Lee’s Role in 2011 ........................ 11

C. Early Findings of Potential Fraud .................... 13

D. Friction with Ms. Rajagopal .......................... 15

E. Ms. Morgan-Lee’s Difficulty with Coworkers and Ms.

Rajagopal’s Attempts to Reduce Tensions .............. 20

F. Ms. Morgan-Lee’s Response to De-Escalation Efforts ... 26

G. Ms. Morgan-Lee’s Work-Related Stress ................. 27

H. The Meeting at Whittier .............................. 29

I. The October 28 Meeting and Its Aftermath ............. 33

J. Ms. Rajagopal’s Further Efforts to Calm Tensions ..... 36

K. Ms. Morgan-Lee Takes More Time Off, Is Asked to Return

or Take Leave, and Invokes Whistleblower Protections . 37

L. Ms. Morgan-Lee Contacts the Owners ................... 47

M. Ms. Morgan-Lee Meets with Mr. Scott and Attorney

Blackman and Declines to Identify Instances of Fraud . 50

N. Ms. Morgan-Lee’s Termination ......................... 53

IV. CONCLUSIONS OF LAW........................................ 54

A. FCA Retaliation ...................................... 54

1. Protected Activity.................................. 55

a. Legal Standard .................................... 55

b. Analysis .......................................... 57

2. Employer Knowledge.................................. 60

a. Legal Standard .................................... 60

b. Analysis .......................................... 62

3. Retaliatory Causation............................... 65

a. Legal Standard .................................... 65

b. Analysis .......................................... 66

B. RIWPA Retaliation .................................... 74

V. JUDGMENT................................................... 76

This case poses the factual question of whether an

employee, Rosemary Morgan-Lee, was fired in retaliation for

internally raising her concerns of fraudulent activity within

her employer, Therapy Resources Management (TRM). If she was

fired for reporting fraud, an activity protected under the False

Claims Act (FCA), 31 U.S.C. § 3730(h), and the Rhode Island

Whistleblowers’ Protection Act (RIWPA), R.I. Gen. Laws §§ 28-50-

1 to -9, TRM could be liable for damages. TRM contends she was

fired because of a breakdown in the employment relationship and

is entitled to no damages.

An initial jury trial ended in a mistrial when one juror

unaccountably refused to answer when she was polled after the

verdict was recorded. Thereafter, the parties tried the case

again, this time as a bench trial.

For the reasons set forth below, as finder of fact, I

conclude that Ms. Morgan-Lee has not proven by a preponderance

of the evidence that she was fired because she engaged in

protected activity.

Ms. Morgan-Lee, whose duties included auditing TRM’s

billing and documentation practices, was required to identify

and report billing discrepancies. She did, on several

occasions, identify discrepancies indicative of potential

misconduct or fraud that would fall within the whistleblower

protections of the FCA. I find, however, that she was

discharged because of a spate of unapproved absences and an

outright refusal to provide specifics about purported fraudulent

activity, even though that was her job. The breakdown of Ms.

Morgan-Lee’s employment relationship was the culmination of an

escalating pattern of erratic, confrontational, and frequently

insubordinate communications by Ms. Morgan-Lee with superiors

and colleagues, rather than the product of any retaliatory

animus on the part of TRM.

Consequently, I will direct judgment entry for defendant

TRM on Ms. Morgan-Lee’s retaliation claims.

I. OVERVIEW

Before she was fired in late 2011, Ms. Morgan-Lee was

Director of Clinical Services for TRM. Her duties in that role

included auditing documentation such as billing records for

services provided by TRM-employed therapists to patients in

nursing homes that contracted with TRM. Ms. Morgan-Lee’s duties

– and the pressures of her position – expanded significantly in

the spring and summer of 2011, when the federal agency

responsible for the Medicare program announced a substantial

overhaul of Medicare billing requirements and procedures, to

take effect in the fall of 2011.

In the course of her work, Ms. Morgan-Lee noted a variety

of issues with TRM’s operations and documentation, including

some instances that she would claim were indicative of fraud.

She stridently raised the issues that she saw and took

considerable umbrage when she felt that others in the

organization were not following her recommendations. At times,

she seems to have viewed her role as including the authority to

issue directives to TRM employees (as opposed to making

recommendations to management), and in some instances she

insisted that others within the company should be disciplined

when they were insufficiently responsive to her recommendations.

By the fall of 2011, the tone of the interactions between

Ms. Morgan-Lee and her colleagues and superiors had

deteriorated, and working relationships were extremely strained.

The company’s president, Uma Rajagopal, sought to manage Ms.

Morgan-Lee’s frustrations and mediate her interactions with

other employees. Ms. Morgan-Lee perceived these efforts as

further undermining her work and her authority. In addition to

Ms. Morgan-Lee’s complaints about her colleagues, she began

complaining of work-related stress. These complaints became so

frequent that Ms. Rajagopal expressed concern for Ms. Morgan-

Lee’s well-being and suggested changing her responsibilities.

In late October 2011, Ms. Morgan-Lee began unilaterally

taking time off with little notice. TRM, with the assistance of

outside employment counsel, attempted to navigate Ms. Morgan-

Lee’s behavior and determine whether some type of leave would be

appropriate. In the first two weeks of November, Ms. Morgan-Lee

spoke and corresponded by email with TRM’s Vice President of

Human Resources and later with several of TRM’s owners. In

large part, those communications related to her conflicts with

Ms. Rajagopal and others, but Ms. Morgan-Lee also voiced claims

of fraud or other wrongdoing at TRM.

TRM asked Ms. Morgan-Lee to provide further details about

her claims, including at a meeting on November 14, 2011. At

that meeting, TRM’s Vice President of Human Resources and TRM’s

outside counsel asked her for specifics about the misconduct

that she claimed to have uncovered. Ms. Morgan-Lee, however,

refused to discuss the matter and suggested that she wanted to

have an attorney of her own present. Afterwards, she was

unreceptive to requests to meet further and continued in her

refusal to provide specifics of the purported misconduct.

TRM extended Ms. Morgan-Lee’s paid leave through

Thanksgiving, and, on November 29, 2011, informed her that she

would be terminated as of December 2, 2011.

II. PROCEDURAL OVERVIEW

This case began as an expansive qui tam action with

numerous defendants. The original defendants were TRM, Ms.

Rajagopal, and three companies that operated nursing homes that

used TRM’s services: Whittier Health Network, LLC; Health

Concepts, Ltd.; and Diocesan Facilities Self-Insurance Group,

Inc. Also named were various individual facilities operated by

those companies.

Plaintiff’s second amended complaint dropped Diocesan

Facilities Self-Insurance Group and its facilities as

defendants. [See Dkt. No. 65]. Four months later, Plaintiff

dismissed her claims against Ms. Rajagopal and against Health

Concepts and its facilities (although the dismissal of those qui

tam claims was explicitly without prejudice as to the

government). [See Dkt. 94 p. 2–3]. In the same filing,

Plaintiff dismissed some of her claims against Whittier Health

and all her claims against TRM except the FCA and RIWPA

whistleblower retaliation claims. [Id.]. Those retaliation

claims are the subject of this decision.

Plaintiff’s other claims against Whittier Health and its

facilities were settled in August of 2016. [See Dkt. No. 163].

In September and October of 2016, the U.S. Attorney’s Office for

the District of Massachusetts announced that Health Concepts and

Whittier Health (as well as one executive from each company) had

reached settlement agreements of $2.2 and $2.5 million,

respectively, to resolve allegations that the companies “failed

to take sufficient steps to prevent TRM from engaging in a

pattern and practice of fraudulently inflating the reported

amounts of therapy provided to Medicare Part A patients in [the

companies’] facilities” (as stated identically in two press

releases). See Press Release, U.S. Att’y’s Office, Dist. of

Mass., Nursing Home Operator and Director of Long Term Care to

Pay $2.5 Million to Settle False Claims for Rehabilitation

Therapy, Justice.gov (Oct. 13, 2016), https://www.justice.gov/

usao-ma/pr/nursing-home-operator-and-director-long-term-care-

pay-25-million-settle-false-claims; Press Release, U.S. Att’y’s

Office, Dist. of Mass., Rhode Island Nursing Home Operator and

Chief Operating Officer to Pay $2.2 Million to Resolve False

Claims Allegations, Justice.gov (Sept. 28, 2016), https://

www.justice.gov/usao-ma/pr/rhode-island-nursing-home-operator-

and-chief-operating-officer-pay-22-million-resolve; see also

Settlement Agreement, Dkt. No. 247-2.

The underlying FCA claims having settled without further

challenge, the sole remaining question in this suit (apart from

the award of expenses, attorneys’ fees and costs) is whether TRM

fired Ms. Morgan-Lee in retaliation for protected activity and

thereby violated the whistleblower protections of the FCA, the

RIWPA, or both.

III. FINDINGS OF FACT

A. Background

Plaintiff Rosemary Morgan-Lee is a licensed physical

therapist. In 2003, she was hired by TRM, a company that

provided rehabilitation services – such as physical,

occupational, and speech therapy – to nursing home patients.

She began as a Rehab Manager, overseeing TRM’s services at one

nursing facility, and she was eventually promoted to Director of

Clinical Services, which was her position during the events that

were the focus of the trial.

Ms. Morgan-Lee’s job responsibilities as Director of

Clinical Services included writing policies to support the TRM

mission statement, educating and training the staff, and

auditing medical records for inappropriate billing practices by

therapists (which could range from poorly worded documentation

to billing for services not rendered or changing doctors’

orders). [Dkt. No. 349 p. 45-47, 68-70; see Ex. 34A

(documenting issues found by Ms. Morgan-Lee in a review of one

patient’s records)].

One of Ms. Morgan-Lee’s central responsibilities was to

monitor and support compliance with Medicare reimbursement

standards. Although TRM did not submit bills directly to

Medicare, its owners and management understood that billing

information provided by TRM would be provided to Medicare and

also understood that TRM was responsible for ensuring its

billing practices conformed to federal government standards.1

[Dkt. No. 349 p. 26–28].

1 TRM billed nursing facilities for services that TRM therapists

and workers provided to residents at the facilities. [Dkt. No.

349 p. 12]. The facilities, in turn, submitted reimbursement

B. Ms. Morgan-Lee’s Role in 2011

In 2011, the Centers for Medicare and Medicaid Services

announced a series of changes to their reimbursement procedures,

with an effective date of October 1, 2011. See Proposed Rule,

Medicare Program; Prospective Payment System and Consolidated

Billing for Skilled Nursing Facilities, 76 Fed. Reg. 26364

(proposed May 6, 2011); Final Rule, Medicare Program;

Prospective Payment System and Consolidated Billing for Skilled

Nursing Facilities for FY 2012, 76 Fed. Reg. 48486 (Aug. 8,

2011) (codified at 42 C.F.R. pt. 413) (setting forth the final

rule and stating an effective date of October 1, 2011).

In anticipation of the Medicare rule changes, Ms. Morgan-

Lee and the rest of TRM’s clinical team set out to educate TRM’s

employees about the new requirements. To that end, Ms. Morgan-

Lee and TRM’s supervisory staff routinely held trainings for

staff, sent out memoranda, and prepared presentations. [Dkt.

No. 349 p. 68–69].

At the same time, TRM’s president, Ms. Rajagopal, directed

Ms. Morgan-Lee and other members of the clinical team to audit

treatment records to determine whether therapists were adjusting

their billing practices as needed to comply with the upcoming

claims to Medicare. [See id.]. Medicare reimbursed the

facilities, which in turn paid TRM an agreed-upon fee or

percentage of the Medicare reimbursement, as determined by the

facilities’ contracts with TRM. [Id. p. 24–26].

changes. [Dkt. No. 349 p. 69-70; Dkt. No. 342 p. 28–29]. These

audits were designed to find billing issues, which Ms. Morgan-

Lee documented in email “synopses” that she sent to the relevant

managers at TRM and to Ms. Rajagopal. [Dkt. No. 349 p. 60, 68–

70]. Although Ms. Morgan-Lee made recommendations directly to

regional managers and senior managers within TRM, implementation

of her recommendations fell to TRM’s operations team, which

included the regional managers who oversaw the company’s

operations at each facility. [Dkt. No. 342 p. 29–32, 40–42;

Dkt. No. 349 p. 71]. Regional managers were responsible for

working with Ms. Rajagopal to develop “Plans of Correction” to

address issues raised by Ms. Morgan-Lee. [Dkt. No. 342 p. 30–

31]. The authority to decide what changes to make and how to

make them rested with Ms. Rajagopal. [See Dkt. No. 349 p. 71].

As is common for audit and compliance personnel in many

organizations, Ms. Morgan-Lee’s position required her to operate

in a nuanced role. She was empowered to request information

from a broad range of employees and to report her findings to

senior management, but she was not in a position to implement

policy changes, to direct employees’ work, or to impose

discipline. This division of responsibilities appears to have

taxed Ms. Morgan-Lee’s patience. As discussed below, she was

repeatedly frustrated by what she saw as a lack of

responsiveness to her recommendations.

Although Ms. Morgan-Lee may have felt that her

recommendations went unheeded, the facts set forth below do not

demonstrate that TRM management schemed to silence her. In the

spring and summer of 2011, she reported findings suggestive of

fraud, yet she suffered no adverse consequences, and the company

supported her in many respects. The fact that Ms. Morgan-Lee

did not encounter any adverse employment actions when she began

reporting potential fraud in the first three quarters of 2011

informs my finding that her firing in December of 2011 was not

retaliation for reporting potential fraud.

C. Early Findings of Potential Fraud

At trial, Ms. Morgan-Lee testified that she had observed

and reported potential fraud on various occasions, including at

times well before the events that precipitated her firing. One

notable example involved a series of conversations on March 31

and April 1, 2011, more than six months prior to the events

leading up to her firing. In March of 2011, Ms. Morgan-Lee had

noticed that a particular patient’s file included physician’s

orders for therapy three times per week, yet Medicare was being

billed at the highest reimbursement level – a level that was

only available for patients receiving therapy at least five

times per week. [Dkt. No. 349 p. 49–53; Dkt. No. 463 p. 13–19].

Ms. Morgan-Lee testified that she met with an Assistant Regional

Manager about the issue and that he told her he would shred the

existing physician’s orders and replace them with orders calling

for five treatments per week.2 [Dkt. No. 349 p. 50–51]. Ms.

Morgan-Lee testified that she had refused to approve the altered

chart for submission. [Id. p. 52]. She further testified that

she had a conversation with Ms. Rajagopal about the matter, from

which she inferred that Ms. Rajagopal had ultimately approved

the documentation with the altered physician’s order. [Id. p.

52–53]. Ms. Morgan-Lee’s testimony was partially corroborated

by a copy of a text that she received from Ms. Rajagopal, which

read, “I am being very clear. We cannot lose these adrs[3] so

figure it out or refuse to do them. I will figure it out[.]”

[Ex. 8; see Dkt. No. 349 p. 58-59, Dkt. No. 463 p. 16–17, 19].

This interaction and others like it show that Ms. Morgan-

Lee was raising specific concerns suggestive of fraud to TRM’s

management and having direct, even confrontational, interactions

about those concerns more than six months before anyone in TRM

management took steps towards altering her employment status

(i.e., by preparing to consult the company’s employment counsel

about her). [See, e.g., Ex. 40 (showing internal correspondence

dated November 2, 2011, initiating an effort to seek legal

2 From Ms. Morgan-Lee’s description, it appears that this would

not change the number of therapy hours billed, but would affect

the reimbursement rate.

3 ADRs is an acronym that refers to requests for additional

documentation, which the Medicare program required before paying

a claim.

advice regarding Ms. Morgan-Lee’s extended absences)]. That Ms.

Morgan-Lee’s explicit and specific reports of misconduct in the

spring of 2011 did not trigger adverse employment consequences

undercuts her contention that her discharge in December of that

year was actually in retaliation for whistleblowing about

problematic billing practices.

D. Friction with Ms. Rajagopal

The pressure of preparing for impending changes to

Medicare’s rules for billing practices increased tensions

between Ms. Morgan-Lee and her colleagues, and generated

tensions with her supervisor, Ms. Rajagopal, as well. Such

tensions are evident in the tone of various email exchanges

between Ms. Morgan-Lee and Ms. Rajagopal and in the synopses

that Ms. Morgan-Lee wrote describing the results of her audits.

I do not exclude at this stage of my evidentiary analysis

that some of the tensions between Ms. Morgan-Lee and Ms.

Rajagopal derived from the substance of Ms. Morgan-Lee’s reports

(that is, the accusation that TRM and its leadership were

failing to prevent, or were even condoning, improper billing).

For the most part, however, the conflicts that emerged in the

fall of 2011 appear to have stemmed from the combined effects of

Ms. Morgan-Lee’s view of her role, her pertinacious insistence

that perceived issues be addressed immediately and on her terms,

and significant interpersonal communication challenges between

the individuals involved.

The evidence shows that Ms. Rajagopal, on multiple

occasions, supported and undertook to implement Ms. Morgan-Lee’s

recommendations. Exhibits and testimony reflect that Ms.

Rajagopal emphasized the importance of properly transitioning to

the new billing process and pressured TRM employees to bring

their operating procedures into line. For example, Ms.

Rajagopal sent an email on or around September 26, 2011, to a

group that included Ms. Morgan-Lee, as well as various

rehabilitation managers, regional managers, clinical

consultants, and TRM’s director of operations. [Dkt. No. 342

p. 33]. With the effective date for the new Medicare procedures

approaching, Ms. Rajagopal’s email projected a sense of urgency

and threatened discipline for employees who failed to comply

with required changes to billing and reporting practices:

Guys

We cannot deliver 800 min of therapy for uh pts/we

cannot still use grps the same way/ we cannot choose

ard dates as before/ we have to re vamp our

operational approach

If rcs cannot do this then they will be written up

Unfortunately our timeline for transition is passing

w/o any effort from your teams to change operational

habits

Thx

Uma Rajagopal

[Ex. 13].4 There is no evidence to suggest that Ms. Rajagopal’s

email was a pretext or sham and, on its face, it reflects an

effort to enforce compliance with the new Medicare billing

requirements in advance of the new rule’s implementation.

Ms. Morgan-Lee’s outsized view of her own role – and her

lack of tact – is evident in her response to Ms. Rajagopal’s

email. Ms. Morgan-Lee sent a reply to thirteen recipients,

while omitting Ms. Rajagopal. In her email, Ms. Morgan-Lee set

a deadline for regional managers to prepare plans of correction

in response to her synopses and demanded that each plan be

signed by the regional manager and the manager responsible for

the TRM’s operations at the specific facility. She wrote:

All regionals need to bring their Plan of Corrections

for each of the synopsis that you have received by

Friday am, Sept 30th.

Again, it is not rationales as to why things are the

way they are, but how the RM are correcting the

issues being found both operationally and clinically

under CMS regulations, State practice acts and TRM

policies and procedures.

4 I present the correspondence between the parties as is, without

correcting typographical and grammatical errors or altering

spacing. The terminology is somewhat opaque, owing in part to

the use of specialized acronyms (e.g., “uh” for ultra-high

therapy rates and “adr” for additional documentation request).

Technical jargon aside, there is much that is cryptic in some of

these emails. In some instances, the language reflects the

writers’ personalities and relationships. Equally important,

the lack of clarity (in part due to poor sentence construction)

helps to explain some of the confusion between the parties.

They need to be signed by the regional and rehab

manager

[Id.].

A few days after this email, Ms. Morgan-Lee met with Ms.

Rajagopal and complained that a colleague had been told

(presumably by Ms. Rajagopal) that he needed only to submit a

plan of correction to Ms. Rajagopal, not to Ms. Morgan-Lee.

[Dkt. No. 342 p. 35]. On September 30, the day before the new

billing procedures became effective, Ms. Morgan-Lee sent an

email which again reflects that she saw herself as not only an

auditor, but as someone empowered to implement and enforce

policies. Writing to Ms. Rajagopal, Ms. Morgan-Lee complained

that certain regional managers were not responding to her

directions. In part, her email stated:

I get responses [from these managers] like “we are

not doing that, we were told we dont have to , we

didnt go over the synopsis, Uma asked me to give

those to her instead of you, and/or we weren’t taught

that way,” which do not seem appropriate when I ask

you and you ask me to ask them why.

Thus, if they are not following through, then it

would be very apparent that the RC/staff may not be

getting the information either

As I spend numerous hours working diligently to get

things done timely, thoroughlty, accurately,

objectively, ethically and completely, it would be

most appreciated for them to follow through as others

are expected to do as well.

Im very concerned about many clinicall and

operational practices as you are as stated.

I request for this to not be shared with anyone, but

enforced.....much appreciated

[Ex. 56].5 In response, Ms. Rajagopal wrote only, “Are you

trying to say something?” to which Ms. Morgan-Lee replied, “Im

asking you...the below?” Ms. Rajagopal responded, “I don’t like

the way u say ‘undo’ what u do”, apparently in reference to a

conversation outside the email chain in which Ms. Morgan-Lee had

complained that Ms. Rajagopal was “undoing” her work. [Ex. 56;

Dkt. No. 342 p. 35–36]. These kinds of email interactions are

characteristic of the correspondence between Ms. Morgan-Lee and

Ms. Rajagopal, and they reflect the increasingly fraught

relationship between two frustrated parties.

There is nothing to suggest, however, that the tensions

between Ms. Morgan-Lee and Ms. Rajagopal indicated a desire or

intention on Ms. Rajagopal’s part to retaliate against Ms.

Morgan-Lee. Rather, there is considerable evidence of Ms.

Rajagopal’s solicitude towards Ms. Morgan-Lee, her concern for

Ms. Morgan-Lee’s emotional well-being, and her repeated efforts

to ameliorate tensions between Ms. Morgan-Lee and others at TRM,

including Ms. Rajagopal herself. These facts, as set forth

5 The parties often use ellipses as elements of their

punctuation. To distinguish original punctuation from

omissions, where I have referenced quoted text, my alterations –

including ellipses used to indicate omissions – are in brackets.

below, undercut any suggestion that Ms. Rajagopal was looking

for a pretext to discharge Ms. Morgan-Lee.

E. Ms. Morgan-Lee’s Difficulty with Coworkers and Ms.

Rajagopal’s Attempts to Reduce Tensions

Notwithstanding her own challenges in communicating with

Ms. Morgan-Lee, Ms. Rajagopal attempted to mediate Ms. Morgan-

Lee’s difficulties with her colleagues. One example is Ms.

Morgan-Lee’s interactions with Jerry St. Jacques, a Regional

Manager.

In October of 2011, Ms. Morgan-Lee suspected that some

billing records in Mr. St. Jacques’ region were being altered to

add minutes of therapy to bills that came up short. [Dkt. No.

349 p. 54–55]. Due to the complexity of the Medicare

reimbursement rules and review process, it is difficult to

ascertain the extent and seriousness of the issues that Ms.

Morgan-Lee identified in Mr. St. Jacques’ region. I credit Ms.

Morgan-Lee’s testimony that there were some instances, at least,

when TRM employees manipulated therapy hours in order to qualify

for higher reimbursement rates. It is not clear, however,

whether these ultimately impacted reimbursements. [See id.

p. 56 (noting that a reimbursement claim “came back denied at

the higher level”)].

Having heard Ms. Morgan-Lee testify, I find that she

fervently believed that the problems were serious and that Mr.

St. Jacques’ efforts to correct them were inadequate. It is

equally evident, though, from the parties’ contemporaneous

emails, that Ms. Morgan-Lee’s tone in pressing her concerns was

impolitic, at best, and frequently self-aggrandizing.6 More

significantly, her comments show her to be oblivious to the

distinction between her own role as an auditor/compliance

advisor and the roles of executives with direct responsibility

for operations. Even assuming that many of Ms. Morgan-Lee’s

findings and recommendations were correct, it is unsurprising

that her employer would conclude that her hectoring tone and her

disregard for organizational boundaries exacerbated tensions

within the company. Her emails with and about Mr. St. Jacques

are indicative of both the nature of her concerns and the

reasons why her employer might have taken issue with how she

communicated her concerns.

Ms. Morgan-Lee’s exchange with Mr. St. Jacques in mid-

October of 2011 captures some of the tenor of these

communications. By email, she noted that some therapists were

working with patients outside of the 7 a.m. to 7 p.m. workday

established by company policy and noted that some therapists

6 In many of her emails, Ms. Morgan-Lee touts own efforts. For

example, on Saturday, October 1, 2011, in response to Ms.

Rajagopal telling her that some team members work harder than

others, Ms. Morgan-Lee wrote, “All I will speak for is

myself....I give 100% every minute/second I work....go where and

when is needed and always offer[.]” [Ex. 58].

were failing to meet company quotas for productivity. These

matters of company policy (with no evident connection to

Medicare billing issues) were raised alongside observations that

some therapists appeared to be overstating therapy times and

that therapists sometimes billed for meetings related to patient

care (“PPS meetings”) at which patients were not present. [See

Exs. 15, 33]. On October 17, 2011, Ms. Morgan-Lee sent an email

to Mr. St. Jacques regarding one of the facilities in his

purview. She wrote:

I never received any feedback re; major concerns

Deb, OTR, still in building very late at night, one

patient missed Rx ‘due to fatigue’ Sat pm (she was there

till 1030pm)...as well as others in before 7am and out

after 7pm, but she has been spoken to in the past as

well.... [. . .]

WV, Im very concerned about billing being added when it

is founded that a category is missed, Friday it appeared

all billing was in Sat/Sun when I was auditing?

[. . .]

Med As cannot be billed for PPS meetings if patient not

present or at any time if patient is not actively

participating in Rx.

[. . .]

Will send more thorough audits but Im sure if youvve

viewed you have found similar patterns unchanged or

minimal change

Thanks

[Ex. 33]. Mr. St. Jacques responded that he “did speak to [the

named facility] and was again told it was a mishap on billing

(therapist did a 15 minute non-planned treatment)” and that he

“[r]e-educated about use of community re-integration and only

billing for meetings if resident is present.” [Id.]. He

concluded by noting that Ms. Morgan-Lee was reviewing past

bills, and he commented that practices had improved: “I

understand you are looking back at the ADR timelines... but West

Shore, Morgan, and all there rest ARE delivering what is being

billed now.” [Id.].

Earlier that same day, Ms. Morgan-Lee had emailed Ms.

Rajagopal about billing, stating, based on conversations with

other employees, that there was a pattern of employees adding 5

to 15 minutes to a patient’s bill if the patient was “short.”

[Ex. 32]. The record does not show any direct response from Ms.

Rajagopal. However, the next evening, Ms. Rajagopal sent Ms.

Morgan-Lee and thirteen others an email with the subject line

“Please take a step back.” The email read:

I understand that there are concerns and discontent.

I am confident that no one on my corporate team and no

one on my mgmt team is intentionally trying to undermine

TRM.

I am seeing emails back and forth. All I want to say is

that we need to respect each other in our roles and be

supportive of audits done.

Guys there is no need to teach each other rules and

ethics. Clinical is sharing it’s findings and ops needs

to work on following through.

Why is there so much friction?

No need to beat up on same issues and no need to get

into defensive/ offensive modes.

The cms environment is already beyond all our control.

Do we need to continue these battles? Can’t we try to

learn from each other and also try to take a more

partnership approach with each other?

No one is trying to change codes/ criticize / target

individuals/ make errors or do fraud.....

Just let’s please try to improve our strengths and stop

our errors.

Thx

[Ex. 14].

This email does not seem to have mitigated the friction

between Ms. Morgan-Lee and her coworkers. Ms. Morgan-Lee

remained frustrated with Mr. St. Jacques’ responses to her audit

reports. After Ms. Morgan-Lee sent him a multiple-page email

itemizing her concerns by facility and by individual employee,

Mr. St. Jacques replied, in part, “Rosemary, This is another

audit with a large amount of information. Again I just ask that

I be given some time to catch up on things and focus on the

points I am able... [. . .] I have given much verbal education

and counseling.” [Ex. 15]. Ms. Morgan-Lee responded, copying

Ms. Rajagopal,

I did give you more than adequate time besides we should

not even find most of these issues

and they are individual/home....I just put in one email,

you can break it down

I am doing as asked and completing all as requested which

takes me a significant amt of time

Uma asked if I called you as well, which I have numerous

times to reeducate and educate as well you have been

presenting the info for the last 1-2 years, thus these

should not be as significant, consistent and prevalent

I had given you an extra week for reaudit, these are

ongoing and I find it interesting that groups went

completely away in a flash so I know that the RCs should

take care of issues.

I knew you didn’t have presentations or anything so you

also had plenty of time

Word of advice, I would change the issues myself, as I

did as a regional since they are consistent and unchanged

by some

[Ex. 15].

Ms. Morgan-Lee’s follow-up correspondence with Ms.

Rajagopal in the next days reinforces the impression that Ms.

Morgan-Lee’s indignation toward team managers had overwhelmed

her sense of collegiality and professional decorum. She emailed

Ms. Rajagopal again two days later regarding her concerns about

Mr. St. Jacques’ region, noting that minutes would sometimes be

added to bills under suspicious circumstances. [Ex. 16]. She

followed up that night with another email to Ms. Rajagopal,

writing,

I had not heard back from you re: my growing concerns in

this region esp with questionable billing

practices/minutes added and noncompliance with

practices/education in [Mr. St. Jacques’] region

Ive done everything to educate, speak to him as well as

you.

Advise

[Id.]. Ms. Morgan-Lee sent Ms. Rajagopal yet another email the

next morning reiterating that “there is little to no change in

some regions/home after extensive education, audits with

synopsis, black and white feedback/phone consults, whatever and

whenever necessary.” [Ex. 17]. She continued, writing that the

situation “has created a significant amount of work related

stress with me, at times challenging my ethics [. . .].” [Id.].

In responsive emails, Ms. Rajagopal attempted to address

Ms. Morgan-Lee’s frustrations. Ms. Rajagopal suggested a degree

of empathy for the managers whom Ms. Morgan-Lee was criticizing,

and she reminded Ms. Morgan-Lee that her job was to audit,

whereas the authority to implement changes sat with the

operations team. Replying to Ms. Morgan-Lee’s email, Ms.

Rajagopal wrote, “There are multiple managers at different

levels of our organization who have similar ethics and values.

They are all working to improve operations every day.” [Id.].

In a separate email around the same time, Ms. Rajagopal reminded

Ms. Morgan-Lee that “[her] job is to do audits and educate” and

asked her to “pl let the operational managers decide how to take

it to the next level.” [Ex. 18].

F. Ms. Morgan-Lee’s Response to De-Escalation Efforts

The emails reported in the preceding section (III.E.)

seemed to have marked a breaking point for Ms. Morgan-Lee, who

treated Ms. Rajagopal’s responses as a personal affront. Ms.

Morgan-Lee replied on October 27, 2011, that Ms. Rajagopal’s

response put a “huge obstacle” in the way of her ability to

perform her job well, and that “[a] great divide was just put in

our teamwork by this statement, in my opinion.” [Id.].

In trial testimony several years later, Ms. Morgan-Lee

characterized her feelings at the time and described a situation

that she viewed as one in which TRM employees ignored her

findings in September and October with Ms. Rajagopal’s backing:

And I was very frustrated. I was very upset. I was

very -- I had a lot of emotions. I felt for a long time

I had been supported by [Ms. Rajagopal]. However,

remarks were passed by other Rehab Managers and Regional

Managers that they informed me that [. . .] [Ms.

Rajagopal] instructed them not to listen to me, and that

they were to listen to her. I was disappointed. I

probably felt every emotion, because I’m very passionate

about what I do.

[Dkt. No. 349 p. 68]. She further testified that she “felt

betrayed” when she was told that Ms. Rajagopal had instructed

other employees to follow instructions from Ms. Rajagopal over

those from Ms. Morgan-Lee. [Id. p. 69]. Her testimony suggests

that she saw Ms. Rajagopal’s assertion of authority as a sign of

personal antipathy rather than as an exercise of managerial

responsibility and authority. [Id. (“I thought we had a decent

relationship, [. . .] and I felt betrayed, actually[.]”)].

G. Ms. Morgan-Lee’s Work-Related Stress

In various of the late-October emails from Ms. Morgan-Lee

to Ms. Rajagopal, Ms. Morgan-Lee complained that her

professional responsibilities were causing her great stress.

[See, e.g., Ex. 17 (“It has created a significant amount of work

related stress with me, at times challenging my ethics[.]”); Ex.

18 (“I am very concerned with the stress related to my job to

allow me to perform and follow through as well as disrespect and

at times unhealthy responses with personal attacks.”)]. In

response to one email, Ms. Rajagopal wrote, “I don’t want you to

feel undue stress[.] So pl let me know if doing your job

differently or having different responsibilities would help[.]”

[Ex. 38]. Responding to another email, she wrote:

There are operational issues we deal with as we work

with people

I am not sure why u feel staff is not held

accountable

Everyone is trying to do their best for the most part

You can always talk to Gus and VP of human resources

he will bring his report to me.

Thx.

[Ex. 36]. Ms. Rajagopal’s emails suggest that she saw Ms.

Morgan-Lee’s comments as indicative of an emerging personnel

issue, and she forwarded several email exchanges with Ms.

Morgan-Lee to Robert “Gus” Scott, TRM’s Vice President of Human

Resources. [See Exs. 36, 37, 38].

There is no evidence that Ms. Morgan-Lee responded to Ms.

Rajagopal’s suggestion that they consider changes to her

responsibilities or other stress-reduction strategies. Ms.

Morgan-Lee did, however, continue to complain about her work-

related stress in emails. [See, e.g., Exs. 19, 20, 25].

H. The Meeting at Whittier

On October 27, 2011, Ms. Morgan-Lee attended a meeting at

the offices of Whittier, an operator of nursing homes and a

major TRM customer. [Dkt. No. 349 p. 69, 72]. That morning,

Ms. Rajagopal had sent the email reminding Ms. Morgan-Lee that

“[her] job is to do audits and educate[.]” [Ex. 18]. One of

the meetings that day, between Ms. Morgan-Lee and a Whittier

employee, concerned how Whittier planned to document a

particular claim when submitting it to Medicare. [Dkt. No. 342

p. 52–55]. Ms. Morgan-Lee knew that the ultimate submission of

the claim was done by Whittier, and that TRM could not control

how Whittier chose to submit the claim. [Dkt. No. 342 p. 55].

She was also aware that an outside healthcare consulting company

was assisting Whittier and had made recommendations about how

Whittier should submit such claims. [Dkt. No. 342 p. 59–60].

Although Ms. Morgan-Lee did not know precisely how the

claim was being handled, she was certain that Whittier’s

approach was fraudulent and left the meeting abruptly and

angrily:

I had a brief meeting. We sat down, and she, [the

Whittier employee], said, “So, we’re going to go ahead

and add the one unit and the one penny to the bill,”

they call it a “UB-04,” and I said, “I already instructed

Uma [Rajagopal] that I don’t know what that means, but

we shouldn’t be doing that, that’s fraud,” and I was

sickened, mad, got up and left.

[Dkt. No. 349 p. 72]. Ms. Morgan-Lee testified that she was

upset because she felt that Ms. Rajagopal had endorsed her

recommendations in private but had not adequately supported her

in communications with Whittier prior to the meeting (Ms.

Rajagopal was not present for the meeting itself). [Dkt. No.

342 p. 60–61].

Ms. Morgan-Lee’s testimony conveyed the impression that she

left Whittier’s offices abruptly. [Dkt. No. 349 p. 72–73]. Ms.

Rajagopal called Ms. Morgan-Lee after Ms. Morgan-Lee left, and

they had a contentious phone call. [Id.]. Ms. Morgan-Lee

testified that the phone call was the first time that she ever

used the word “fraud” to describe any of her concerns. [Dkt.

No. 463 p. 49–50]. The conversation was apparently quite

heated, and Ms. Morgan-Lee testified about the incident that “my

emotions were everywhere.” [Dkt. No. 349 p. 73]. Ms. Rajagopal

apparently hung up on her. [Id.].

Ms. Morgan-Lee then called Mr. Scott, TRM’s Vice President

of Human Resources, and told him that, because of her tensions

with Ms. Rajagopal and her work-related stress, she would need

to take a day off. [Id. p. 74]. Ms. Rajagopal attempted to

call Ms. Morgan-Lee repeatedly during the rest of the day, and

Ms. Morgan-Lee finally called her back that evening, at which

time Ms. Rajagopal informed her that she was scheduling a

mandatory meeting the following day to address Ms. Morgan-Lee’s

concerns. [Id.]. Ms. Rajagopal also sent an email to Ms.

Morgan-Lee about the meeting, which Ms. Morgan-Lee responded to

around 10 p.m.:

As noted in all my synopsis , there are clinical and

operational as well as TRM policy/procedure, CMS and

STate practice act concerns

How you have responded has been unhealthy for me and

created work related stress especially after your verbal

responses on the phone today in regards to my concerns

with billing/practices.

As you have been informed, I also do not appreciated

being portrayed as the ‘bad guy,’ for many years to other

coworkers/corporate and professionals just as [the

Whittier employee] had stated on several occassions

today..it just became too much today

I have done everything and anything asked to the best of

my ability but felt today and from this mornings’ email

that it is difficult for me.

[Ex. 19]. Later that night, Ms. Rajagopal responded to another

somewhat scattered email from Ms. Morgan-Lee, addressing each

concern in turn and writing the following in closing:

Rosemary, I think I have tried as much as I can to hear

you out. If you are really that unhappy, please let’s

sit down and talk about you transitioning your role.

Your well being is most important. You have had multiple

family issues and I am sure work adds more stress. So we

can meet to talk. But I really need to give you the

ability to reduce your stress by helping you take on a

different role. Maybe one facility based or one state

based.

[Ex. 20]. No evidence was presented that Ms. Morgan-Lee

responded to this email, although she forwarded it to Mr. Scott

around 11:20 p.m., calling it “a typical response over the last

7 years in which the issues are deflected and manipulated[.]”

[Id.].

Ms. Morgan-Lee sent Mr. Scott another email a few minutes

after midnight:

Gus,

I never heard back from you

I sent you several texts

Uma contacted me an excessive amt of time...at least

7 texts, 2-3 emails and 3-5 calls...I finally spoke

to her as she strongly requested I be at the meeting

tomorrow...I did inform her I would try as she stated

she would be addressing numerous concerns

However, she stated any time off is not approved if I

dont file a written complaint or comp issue nor MLOA,

is this accurate if I inform her and you of what I

informed both of you?

This is not to be shared with anyone

Thanks

[Ex. 22]. This email showed Ms. Morgan-Lee to be conspicuously

unenthusiastic about attending a meeting on issues that she had

been persistently emailing Ms. Rajagopal about for weeks.7

7 Although Ms. Morgan-Lee characterized Ms. Rajagopal’s attempted

communications as “excessive,” it does not appear that the

attempts were out of keeping with the ordinary conventions of

communication at TRM, at least as Ms. Morgan-Lee herself

practiced them. Ms. Morgan-Lee was certainly a sender of more

than one late-night flurry of emails. Her complaint about the

Whoever may have shared responsibility for the escalation of

tensions up to this point, Ms. Morgan-Lee’s behavior in the last

week of October had clearly begun testing the outer boundaries

of acceptable professional behavior.

I. The October 28 Meeting and Its Aftermath

Ms. Morgan-Lee did attend the meeting the next day, along

with Ms. Rajagopal, Mr. Scott, and about 17 other members of the

staff, accounting for the entire clinical team and the entire

operations team. [Dkt. No. 350 p. 16].

At trial, the parties presented diametrically opposed

accounts of the meeting’s events. Ms. Morgan-Lee testified that

the meeting was extremely volatile:

What happened was it was not a meeting for me to discuss

my concerns. It was a meeting driven by Uma ranting,

screaming, crying, threatening. It was a very volatile,

hostile meeting, going around the room attacking certain

people personally and also stating if anybody in the

room had the F-ing balls to report fraud, that she would

ensure that not only would they not have a job with TRM,

that she would make sure they didn’t have one in the

industry. And then she also continued to make

disparaging comments about the owners and some of our -

- some of TRM’s big customers. And at the end of this

awful meeting she stated that if anybody wanted to

resign, that she would accept their resignation with

three months’ severance and/or if anybody wanted to take

time off, that she would approve the time and then to go

seek Robert Scott for a second signature.

frequency of contact might have been sincere, but it rings

hollow in context. It does not persuade me that Ms. Rajagopal’s

outreach was beyond the pale; rather it reflects the

interpersonal brittleness between Ms. Morgan-Lee and Ms.

Rajagopal at this time.

[Dkt. No. 349 p. 75-76].

TRM presented Mr. Scott’s testimony, which described a very

different scene. He was at the meeting on October 28 and

testified that Ms. Rajagopal did not say anything along the

lines of “if anyone has the fucking balls” or “[i]f you report

fraud, then you will never work in the industry.” [Dkt. No. 350

p. 17]. Nor did Mr. Scott receive any complaints about the

meeting from anyone other than Ms. Morgan-Lee.8 [Dkt. No. 350

p. 18].

I note that Ms. Morgan-Lee spoke to Mr. Scott later that

day and indicated that she needed to discuss “work ‘issues’”

with him. [See Ex. 42]. She declined, however, to elaborate

and instead asked to speak with Brian Pontolilo, one of TRM’s

owners. [See id.]. To the extent that Ms. Morgan-Lee spoke

about problems with billing, it is undisputed that she did not

8 Contemporaneous emails from Ms. Morgan-Lee indicate that, from

the start, the parties had vastly different perceptions or

recollections of the meeting. [See Ex. 20 (email from Ms.

Morgan-Lee to Mr. Scott, dated Oct. 30, 2011) (“I am not sure if

you are aware of the level of staff splitting that occurs at the

‘President’ level which appears to have created the hostile work

environment. Based on the fact that you remained in the meeting

on Friday and allowed the verbiage to be utilized, I would say

that you may not have been aware.”); Ex. 27 (email from Ms.

Morgan-Lee to Ms. Rajagopal, copying Mr. Scott, dated Nov. 9,

2011) (“I did inform you that you gave the impression in the

meeting on October 28, 2011, that operations didn’t have to

follow clinical recommendations, you disagreed that is what you

said and you felt you supported clinical findings and

recommendations[.]”)].

mention fraud to Mr. Scott at this time. [See Dkt. No. 350 p.

18 (Mr. Scott’s testimony that, as of his receipt of an October

30, 2011, email from Ms. Morgan-Lee, she had never said anything

to him about fraudulent billing practices); Dkt. No. 349 p. 76

(Ms. Morgan-Lee’s testimony acknowledging that she did not use

the term “fraud” with Mr. Scott on October 28)].

To the extent that the dispute about what happened at that

meeting on October 28 is material to the decision in this case,

I conclude that Ms. Morgan-Lee’s perception of this meeting does

not accurately reflect the tenor or content of the meeting, and

I credit Mr. Scott’s testimony. Ms. Morgan-Lee’s

acknowledgement that she did even mention the word “fraud” in

speaking with Mr. Scott afterwards is difficult to square with

her description of the meeting as an expletive-laced tirade

threatening retaliation against anyone who reported fraud at

TRM. Further, had the meeting really included such explicit and

profane threats, it seems likely that Ms. Morgan-Lee would have

found at least one corroborating witness among the 20-odd people

in attendance.

In any event, that night, Friday, October 28, at 11:19

p.m., Ms. Morgan-Lee emailed 28 people, including Mr. Scott and

Ms. Rajagopal, writing only, “I will be off until at least Nov

2, 2011[.] Thanks[.]” [Ex. 21]. She emailed Ms. Rajagopal and

Mr. Scott on the early morning of Wednesday, November 2 to say

that she needed to take “a couple more days off from TRM at this

time.” [Exs. 39, 40].

Less than 10 minutes later, Mr. Scott emailed Ms. Rajagopal

to ask how she would like to handle Ms. Morgan-Lee’s continued

absences. He wrote, in part:

I’m not sure which direction you would like to head

with this. Rosemary is now officially taking more

than three days in a row off for personal mental

health reasons. I can check and I would like to

verify if we should ask for a Dr’s note for her

return or not. Right now, she is in the driver’s

seat; telling us if and when she will return. We

could also simply tell her to take the rest of the

week off and set a meeting to discuss her return.

[Ex. 40]. Mr. Scott closed by suggesting that Ms. Rajagopal

should consult with an outside advisor about how to proceed, and

she replied that she would call TRM’s labor and employment

counsel, Brian Lewis, the following day. [Id.].

J. Ms. Rajagopal’s Further Efforts to Calm Tensions

While the company grappled with a response to Ms. Morgan-

Lee’s absences, Ms. Rajagopal continued to try to engage with

Ms. Morgan-Lee in an effort to facilitate her return to work.

Ms. Morgan-Lee worked on November 4 [See Ex. 29], and she had

lunch with Ms. Rajagopal at the Providence Place Mall, after

which Ms. Rajagopal bought her a shirt from Talbots as a gift.

[Ex. 27; Dkt. No. 342 p. 70–71]. Ms. Morgan-Lee testified that

the lunch meeting was calm, relatively pleasant, and potentially

an attempt to clear the air. [Dkt. No. 342 p. 70-71]. In an

email she sent to Ms. Rajagopal the following week to summarize

the meeting, Ms. Morgan-Lee wrote that “the meeting was ok and

you seemed supportive of my concerns and professional goals

going forward.” [Ex. 27].

Ms. Morgan-Lee’s contemporaneous description of her

perception of the meeting reinforces my view that the meeting

was a genuine effort to reduce tensions, reset interpersonal

relations, and find a path forward for Ms. Morgan-Lee. The fact

that Ms. Rajagopal was — even in the face of Ms. Morgan-Lee’s

unprofessional behavior — still attempting to find a way to

accommodate and retain Ms. Morgan-Lee undercuts the suggestion

that TRM’s managers were bent on retaliating against Ms. Morgan-

Lee for protected activity or were otherwise looking for an

excuse to fire her.

K. Ms. Morgan-Lee Takes More Time Off, Is Asked to Return or

Take Leave, and Invokes Whistleblower Protections

On the night of Sunday, November 6, Ms. Morgan-Lee

announced via email that she would be taking November 7 off.9

[Ex. 59]. Ms. Rajagopal replied, “Everything ok ?” [Id.].

There was no evidence to indicate whether Ms. Morgan-Lee

replied. At noon on November 8, Ms. Morgan-Lee emailed Mr.

9 It is possible that she sent this email in the early morning

hours of Monday, November 7. [See Ex. 24].

Scott telling him that she would not be working that day,

either. [Ex. 25].

After these further unexcused absences, Ms. Rajagopal and

Mr. Scott contacted Attorney Lewis, TRM’s employment counsel,

who drafted an email to Ms. Morgan-Lee for Mr. Scott to send.

[See Ex. 69J]. Attorney Lewis characterized the email as

responding to “the situation over the past week or two” and

summarized that it set forth three options for Ms. Morgan-Lee:

(1) to return to work and “stop[] taking personal days with no

notice,” (2) to arrange for a formal leave and possible job

restructuring “if she has a medical issue related to her

stress,” or (3) to speak with Mr. Scott or another individual if

she needs help resolving an issue with a supervisor or coworker.

[Id.].

In addition to the email to Ms. Morgan-Lee, the parties

offered evidence of the internal correspondence that led up to

that email. None of this internal correspondence suggests that

Ms. Morgan-Lee was being targeted for raising concerns about

fraud. Attorney Lewis’s comments reflect a shared understanding

that he was called in to address a newly arisen issue with

attendance. There is nothing to suggest that Ms. Rajagopal or

Mr. Scott had pointed to any issue of longer standing.10 Rather,

the email appears to reflect a bona fide effort to give Ms.

Morgan-Lee avenues to return to work, either immediately or

after resolving whatever issue was causing her unexcused

absences. Although it is likely that the approach taken by TRM

management was informed by Ms. Morgan-Lee’s personality and her

sometimes erratic behavior, the email made no direct mention of

her significant friction with other TRM employees. Instead, the

focus was on the need to have Ms. Morgan-Lee reliably available

to perform her duties as Clinical Director. [See Ex. 42].

No doubt other employers would act summarily to fire an

employee who, with little notice or explanation, took more than

a week off from work, leaving others to pick up the pieces. By

contrast, TRM’s attempts to accommodate Ms. Morgan-Lee,

notwithstanding her failure to formally request an

accommodation, suggest that the company was more interested in

retaining her as a productive employee in some capacity than in

firing her.

Mr. Scott sent the email drafted by Attorney Lewis to Ms.

Morgan-Lee on the afternoon of November 8. [Ex. 69J]. The

10 Ms. Morgan-Lee’s criticisms about other employees and their

compliance with applicable rules had been going on for months.

Whatever frustrations her managers may have felt about the tone

or content of her complaints, the evidence does not suggest that

those frustrations motivated the decision to bring in an

employment lawyer.

email outlined the time off that Ms. Morgan-Lee had been taking,

told her she could not take personal days off with so little

notice, and offered several options for dealing with her stress

— including options to take leave under the Family and Medical

Leave Act (FMLA) or to restructure her job. [Ex. 42]. The

email promised that “any job restructuring will not impact your

salary or other benefits [. . .] but, hopefully, will alleviate

some of the stress that you are suffering[.]” [Id.].

In response to Mr. Scott’s email, Ms. Morgan-Lee sent Mr.

Scott three emails in the middle of the night: 2:17 a.m., 2:32

a.m., and 2:40 a.m. on November 9. [Exs. 42, 43, 44]. The

first of these emails, though scattered, reads as a frustrated

defense of her time off and other behaviors mentioned in Mr.

Scott’s email. [Ex. 42]. For the first time, however, Ms.

Morgan-Lee also suggests that she was facing retaliation as a

whistleblower. She closed the email by stating:

I also believe you are aware that I shared some

information with you on Friday, November 4,2011 as far

as internal whistle blower protection act and the

repercussions I have felt from my supervisor. Trust in

the HR department is a major concern as I also informed

you.

I did request via email and text today with Uma that we

meet. I received no response.

Thanks

[Id.].

In her second email, Ms. Morgan-Lee again referred to

whistleblower protections and used other employment-law jargon

from the retaliation law context. [See Ex. 43]. She wrote that

she was “concerned about the repercussions that I have

experienced while performing my job to the best of my ability as

well as the hostile work environment as well as other factors

from my supervisor, which has let to work related stress[.]”

[Id.]. She then raised, again, her concern that some staff were

working outside of the 7 a.m. to 7 p.m. hours set by TRM’s

internal policies.11 [Id.].

Ms. Morgan-Lee went on in her second email to claim more

explicitly some kind of whistleblower protection, writing:

It was my understanding that by informing my supervisor

as well as regionals of my findings and concerns that I

should have been protected by a ‘whistleblowers

protection law,’ but it does not appear that way as the

following seems to be occurring or could be implied,

which is why I informed you on Friday, November 4, 2011.

Some of the apparent repercussions may include:

Threats made of failure to hire or rehire as well as

other employees Intimidation Making threats re: position

and future employment Reassignment affecting prospects

for promotion and professional goals outlined over a

year ago Implied Firing or laying off (offer 3 months

11 Whatever the purpose of this company policy on the

start/finish of the workday, the mere fact that employees may

have been working before or after their scheduled shifts is not

indicative of fraud. Whistleblower protections extend broadly

to reports of fraud or misconduct with respect to government

programs, but there is no special protection for employees who

merely report violations of company rules.

to employees on 10/28/11) [. . .] Potential demoting via

email and verbally Potention of denying promotion

[Ex. 43]. This was followed by a third email, in which Ms.

Morgan-Lee complained that she had never been given a TRM email

address. [See Ex. 44].

Mr. Scott responded to these emails that afternoon

(November 9), presumably after speaking with Attorney Lewis.

[See Exs. 26, 45]. In his email, Mr. Scott reiterated to Ms.

Morgan-Lee that she could not take personal days with little or

no notice and provided her with options for taking extended time

off. [Ex. 26]. He also addressed her claims of “harassment,”

writing that the company needed her cooperation to investigate

her claims. To that end, he requested a meeting:

Additionally, in your emails to me, you have raised a

number of issues about “harassment” and other things

that you believe are “issues” at TRM. TRM takes all of

these allegations seriously, but in order to address

them, I need to investigate them with you. As such, we

need to set down a time when you and I can meet, face to

face, to discuss these allegations in more detail. I am

available to meet with you on Wednesday the 16th. If

you are still uncomfortable speaking with me, we can set

up a meeting with Karli.

[Id.].

It is not clear from the evidence whether Ms. Morgan-Lee

responded immediately to Mr. Scott’s email, but she did send a

lengthy email to Ms. Rajagopal that afternoon, with a copy to

Mr. Scott, summarizing the meeting between Ms. Morgan-Lee and

Ms. Rajagopal at the Providence Place Mall on the preceding

Friday (November 4). [See Ex. 27]. As noted above, she closed

by writing that “the meeting was ok and you seemed supportive of

my concerns and professional goals going forward. and yes,

thank you for lunch, your time and the shirt again.” [Id.].

The following day, November 10, Ms. Morgan-Lee responded to

Mr. Scott, rehashing much of what she had previously written,

although she did not offer a time to meet. She wrote, in part:

I absolutely informed you on the phone on Friday November

4, 2011 that my concerns were along the lines of

‘retaliation of internal whistle blowing’ and I informed

you that I felt being unfairly treated due to me

informing [Ms. Rajagopal] of certain findings. There

were a few other issues discussed on this date, but I

did not extensively divulge as I informed you I needed

more time. [. . .]

I also spent much time with you on October 28, 2011 in

regards to harassing, disparaging, threatening, abusivem

manipulative and hostile work environment with [Ms.

Rajagopal].

[Ex. 28].

Later that evening, seemingly in response, albeit in a

separate email chain, Mr. Scott again attempted to schedule a

meeting with Ms. Morgan-Lee, writing, in part:

As for the meeting regarding your concerns and

allegations, I would like to schedule it for Monday

[November 14, 2011]. Please notify me what time works

for you and I will make it available. We take these

concerns very seriously and seeing as how you seem to

wish to get back to work, it is now time to address these

concerns.

[Ex. 29].

A further email from Ms. Morgan-Lee on the next day

(Friday, November 11) did not address the request to meet, so

Mr. Scott wrote back that afternoon:

Rosemary,

I am asking again that you meet with me on Monday the

14th. This is a mandatory meeting. You have repeatedly

raised serious concerns and made some allegations and

they need to be documented in order that we proceed in

any way. [. . .]

Please let me know today what time you expect to be in

the office on Monday to go over your concerns.

[Ex. 46].

Ms. Morgan-Lee responded to the November 11 email with a

time to meet, and Mr. Scott confirmed the meeting. [Ex. 47].

In that exchange, Ms. Morgan-Lee asked for Ms. Rajagopal to be

present at the meeting. [Id.]. Mr. Scott responded that Ms.

Rajagopal would not be present because the meeting was intended

to address concerns about which Ms. Morgan-Lee had approached

him (presumably including Ms. Morgan-Lee’s perception that she

was being mistreated by Ms. Rajagopal). [Id.].

The contemporaneous email traffic is difficult to square

with Ms. Morgan-Lee’s trial testimony, in which she contended

that she had contacted TRM’s owners (as discussed below) because

she “wanted them to look into the fraud and the abuse and what

was going on, which may be inclusive of Uma Rajagopal.” [See

Dkt. No. 342 p. 90]. If, as she testified, Ms. Morgan-Lee’s

intention was to expose Ms. Rajagopal as someone who was

complicit in fraud, it is difficult to understand why Ms.

Morgan-Lee requested Ms. Rajagopal’s attendance at the November

14 the meeting.

Conceivably, Ms. Morgan-Lee may have hoped that, in a

meeting with Ms. Rajagopal and Mr. Scott, she might air her

complaints about Ms. Rajagopal’s management, and that Ms.

Rajagopal would change her approach. It seems more likely,

however, that Ms. Morgan-Lee simply hoped to follow up on the

conciliatory tone of her November 4 meeting with Ms. Rajagopal.

This would be consistent with Ms. Morgan-Lee’s email

acknowledging Ms. Rajagopal’s supportiveness at the November 4

meeting. [See Ex. 27]. Either way, Ms. Morgan-Lee’s request to

include Ms. Rajagopal signaled to TRM that Ms. Morgan-Lee’s

focus – at that time – was to address her working relationship

with Ms. Rajagopal, not to report Ms. Rajagopal for committing

or condoning fraud.

A few minutes after the email exchange to arrange the

meeting, Ms. Morgan-Lee emailed Mr. Scott again, this time

voicing her concerns about organizational changes and shifts in

job titles and responsibilities that Mr. Scott had just

announced in a separate email to TRM staff. [Ex. 30]. Ms.

Morgan-Lee expressed concerns that another employee’s new role

overlapped too much with her own responsibilities and complained

about a “lack of acknowledgement that I have also requested many

professional roles and levels of growth over the last 2-3 years

[. . .] .” [Id.]. She then reiterated her claim that she was

being retaliated against and harassed, giving as an example of

“harassment” that Ms. Rajagopal had continued to try to contact

her after Ms. Morgan-Lee abruptly left the meeting at Whittier

on October 27. [Id.].

It is notable that Ms. Morgan-Lee saw “harassment” in a

supervisor’s attempts to follow up with her after she abruptly

left a meeting with a major client. I also note that Ms.

Morgan-Lee’s description of “harassment” was coupled with her

evident concern that colleagues whom she saw as unworthy were

being promoted while she was not. Against this backdrop, I find

it is more likely than not that Ms. Morgan-Lee’s emotional needs

and professional frustrations colored her perception of her

dealings with Ms. Rajagopal and others.

Ms. Morgan-Lee’s apparently skewed perception of the

interactions in her workplace does not mean that her claims of

fraud were necessarily inaccurate. The evidence is insufficient

to make a finding on that score, and Ms. Morgan-Lee was not, in

any event, required to prove actual fraud at trial. The

particular incidents that Ms. Morgan-Lee describes may have been

isolated events or they may have been exemplars of pervasive

misconduct. Either way, she seems to have perceived harassment

in various communications and interactions where less nefarious

explanations are more probable.

There is no perfect vantage point that would allow a finder

of fact, years later, conclusively to ascribe responsibility for

the various failures of tact, diplomacy, and communication that

contributed to the deterioration of Ms. Morgan-Lee’s working

relationship with Ms. Rajagopal and others at TRM. But there is

a dearth of credible evidence to suggest that the interactions

between Ms. Morgan-Lee and Ms. Rajagopal – however fraught they

might have been – reflected an intention by Ms. Rajagopal or

other managers at TRM to harass or punish Ms. Morgan-Lee for

reporting fraud.

L. Ms. Morgan-Lee Contacts the Owners

During the weekend before the planned meeting with Mr.

Scott, Ms. Morgan-Lee emailed Brian Pontolilo, one of TRM’s

owners, to offer to share her “concerns for [the] company[.]”

[Ex. 10]. They spoke by phone for over 40 minutes in what Mr.

Pontolilo characterized as a “long, rambling conversation” in

which Ms. Morgan-Lee expressed “a lot of concerns about things

that were going on within the company and with some of the other

managers and complained a lot about the president of the company

[Ms. Rajagopal].” [Dkt. No. 349 p. 31]. Despite the call’s

length, Ms. Morgan-Lee did not offer any specifics about

purported fraudulent activity. [Dkt. No. 349 p. 44]. Mr.

Pontolilo told Ms. Morgan-Lee that he was concerned by what she

said; however, because he was no longer involved in TRM’s

operations, he suggested that she call another of the owners.

[Dkt. No. 349 p. 35-36].

Following the conversation, Mr. Pontolilo emailed Armand

Bergeron and Ron Diurba, the other two owners, to ask for “a

comprehensive review by ownership of TRM’s billing and

documentation practices.” [Ex. 53]. He also suggested that the

owners should interview management employees “regarding work

environment allegations” and stated his concern “about reports

from within and outside of the company that indicate disparaging

remarks being made about clients and TRM owners.” [Id.]. The

nature and breadth of the review requested by Mr. Pontolilo

indicates that he understood Ms. Morgan-Lee to have raised

serious concerns about TRM’s billing practices.12

Mr. Pontolilo’s email to the other owners of TRM made no

reference to any claims of fraud on the part of Ms. Morgan-Lee.

In his testimony at trial, he did not recall whether she had

made any mention of fraudulent billing practices during their

12 In response to Mr. Pontolilo’s email, Mr. Diurba wrote that a

comprehensive review was already underway, and noted that Mr.

Scott and Charles Blackman, another attorney for TRM, were

planning to meet with Ms. Morgan-Lee that morning. [Ex. 53].

Mr. Pontolilo testified that an investigation was, in fact,

conducted and that it did not find anything improper. [Dkt. No.

349 p. 40].

phone call. [Ex. 53; Dkt. No. 349 p. 38]. It stands to reason

that, had Ms. Morgan-Lee clearly and explicitly claimed fraud in

that call, it would have been memorable to Mr. Pontolilo, whom I

found credible. In light of all the evidence, I find that Ms.

Morgan-Lee either did not claim fraud in her call with Mr.

Pontolilo or did so in a manner so unfocused as to be

unrecognizable as such. In the welter of Ms. Morgan-Lee’s

grievances, allegations of fraud may have been included, but I

credit Mr. Pontolilo’s testimony that such allegations were not

readily identified as such.

After speaking to Mr. Pontolilo, Ms. Morgan-Lee also

telephoned Mr. Diurba that weekend, although their conversation

was short because he was driving. [Dkt. No. 342 p. 85]. He

suggested that she should email Mr. Scott to “streamline” what

she wished to speak about in her meeting with Mr. Scott on the

upcoming Monday, November 14. [Id. p. 4].

On Sunday evening, November 13, Ms. Morgan-Lee sent an

email to Mr. Diurba and Mr. Scott, which included “an outline of

what I would like to discuss[.]” [Ex. 9]. Although that email

included a line item for “Fraud and abuse concerns[,]” this was

plainly identified as part of a recitation of headings from

TRM’s policy and procedure manual. Beneath those headings, Ms.

Morgan-Lee listed various areas of concern, including several

that – at least arguably – could constitute fraud or abuse

within the ambit of the FCA: “Possible inappropriate billing

practices[,]” “Moving therapists around who may be billing

inappropriately[,]” and “Altered documentation during ADR

processes/audits[.]” [Id.]. The email also asserted that she

was “concerned with the negative consequences, possible

retaliation due to internal type whistle blowing while

performing [her] expected professional responsibilities[.]”

[Id.].

M. Ms. Morgan-Lee Meets with Mr. Scott and Attorney Blackman

and Declines to Identify Instances of Fraud

Shortly before the meeting between Ms. Morgan-Lee and Mr.

Scott on Monday, November 14, management at TRM decided to

invite Attorney Blackman to the meeting. [Dkt. No. 350 p. 69–

70]. Ms. Morgan-Lee testified at trial that, upon her arrival,

she was “blindsided and shocked” that there was an attorney

present, and she initially indicated that she wanted to

reschedule. [Dkt. No. 342 p. 6–10, 94]. The meeting eventually

went forward and lasted around two hours. [Dkt. No. 350 p. 40].

At the meeting, Ms. Morgan-Lee declined to discuss her purported

concerns about fraud. [Id.]. Instead, Mr. Scott testified, she

focused on “work-related stress, sick leave, attendance issues,

her concerns about a hostile work environment, and Ms.

Rajagopal, in particular.” [Id.].

During the meeting, both Mr. Scott and Attorney Blackman

repeatedly requested that Ms. Morgan-Lee provide details about

her claims of fraud to enable an investigation by TRM, but she

refused, stating that she was “uncomfortable” with the meeting.

[Dkt. No. 342 p. 11–12; Dkt. No. 350 p. 38]. Instead, Ms.

Morgan-Lee testified, she directed Mr. Scott and Attorney

Blackman to ask Ms. Rajagopal. [Dkt. No. 342 p. 11–12]. At the

end of the meeting, Mr. Scott instructed Ms. Morgan-Lee to take

the remainder of the week off, with pay. [Id. p. 65–66].

On Sunday, November 20, Ms. Morgan-Lee sent a long and

disorganized email to Mr. Scott and TRM’s owners. [See Ex. 11].

In that email she (inter alia) rehashed her perception that

TRM’s management was hostile to her, complained that she did not

have access to the TRM time entry system, expressed frustration

about unclear expectations and what she saw as double standards,

complained about the promotion of employees whom she saw as less

capable than herself, and complained that she did not have a TRM

email address. [See id.].

In the same email, Ms. Morgan-Lee suggested sweeping audits

of various corporate records to address what she called “HR/

hourly labor/payroll issues[.]” [Id.]. She noted that some

salaried employees routinely entered their daily time (8 hours)

before the close of business. [See id.]. On this basis she

wrote, “I suggest and recommend that all 8 years of salaried

employees timesheet be audited,” along with an 8-year audit of

the timesheets of all hourly employees, “by outside independent

auditors[.]” [Id.].

Closer to the subject of possible fraud, Ms. Morgan-Lee

offered an oblique comment, writing “As you are aware, I have

the information to be shared re: my other concerns with

billing/documentation etc., in the appropriate forum with the

appropriate objective personnel who support all parties

involved.” [Id.]. She did not make any more direct reference

to fraud or indicate that the “billing/documentation” issues in

question were outside the ordinary scope of her oversight

duties. [Id.]. She did, however, recommend that the company

retain outside consultants to investigate the company’s

practices on site at “at least 25” nursing homes through

unannounced visits, albeit without specifying any particular

facilities that warranted such scrutiny. [Id.].

Mr. Scott responded to Ms. Morgan-Lee’s email, writing that

the company would continue her paid leave because she and he had

been unable to discuss her allegations, and requesting that she

schedule another meeting with him and Attorney Blackman. [Ex.

49]. She responded, declining to schedule a meeting until she

had her own attorney. [Id.].

N. Ms. Morgan-Lee’s Termination

Two days later, on November 22, Mr. Scott sent Ms. Morgan-

Lee a letter telling her that it was time for her to

“transition” to the “next phase” of her career. [Ex. 12].

After summarizing the events of the preceding weeks, Mr. Scott

addressed Morgan-Lee’s November 20 email:

Despite your allegations in your email about suffering

from “harassment” and “retaliation,” it is clear that

you are still complaining about TRM’s work environment

and the difficulties you have working with [Ms.

Rajagopal], as well as the Directors, in performing your

job duties. You again make vague allegations to unlawful

“billing practices,” but you again fail to support these

allegations. It is troubling because in your position

in TRM for the past eight years, you have been

responsible for reviewing the billing and challenging

denials [of payment by Medicare]. If there were problems

in the billing practices that amounted to “fraud,” it

was incumbent on you to review and rectify those

problems.

[Id.]. Mr. Scott also specifically responded to the request for

an outside audit that Ms. Morgan-Lee had made in her November 20

email:

You make this broad, unnecessary and unsupported request

despite the fact that (1) you have failed to identify

any specific acts of wrongdoing or improper billing, and

(2) you have been the Director of Clinical Services for

eight years and you are fully aware of the billing

practices of TRM. Without providing any support, it

again simply appears that you are “stirring the pot” in

an attempt to undermine [Ms. Rajagopal]’s ability to

operate TRM.

[Id.]. The letter reiterated that TRM remained interested in

investigating any specific claim of wrongdoing, repeated that

Mr. Scott and Attorney Blackman wished to meet with Ms. Morgan-

Lee, and noted that the company could not investigate without

her cooperation. [Id.].

In the final paragraphs of the letter, Mr. Scott noted Ms.

Morgan-Lee’s stress, her difficulty working with others at TRM,

her refusal to take FMLA leave, and her issues with taking days

off with little notice. [Id.]. He concluded, “Given these

facts, it is apparent that the best way to resolve these issues

is to work with you to transition you to the next phase of your

career.” [Id.]. The letter closed by extending Ms. Morgan-

Lee’s paid leave beyond Thanksgiving to allow discussion of the

matter after the holiday. [Id.].

On November 29, 2011, TRM’s employment counsel, Attorney

Lewis, sent a letter to Ms. Morgan-Lee stating that TRM was

terminating her employment effective December 2, 2011, and

offering her a severance package. [Ex. 31]. She declined that

offer. [Ex. 70].

IV. CONCLUSIONS OF LAW

A. FCA Retaliation

To prevail on her FCA retaliation claim, Ms. Morgan-Lee

must prove by a preponderance of the evidence (1) that her

conduct was protected under the FCA; (2) that TRM knew about her

protected conduct; and (3) that TRM “discharged or discriminated

against [her] because of [her] protected conduct.” Guilfoile v.

Shields, 913 F.3d 178, 187–88 (1st Cir. 2019) (quoting U.S. ex

rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 235 (1st

Cir. 2004) (abrogation on other grounds recognized by U.S. ex

rel. Gagne v. City of Worcester, 565 F.3d 40, 42 (1st Cir.

2009))). There is no requirement that Ms. Morgan-Lee prove a

violation of the false claims provisions of the FCA. Id. at

188.

1. Protected Activity

a. Legal Standard

Protected activity “is limited to activities that

‘reasonably could lead’ to an FCA action; in other words,

investigations, inquiries, testimonies or other activities that

concern the employer’s knowing submission of false or fraudulent

claims for payment to the government.” Karvelas, 360 F.3d at

237 (quoting U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d

731, 740 (D.C. Cir. 1998)). By contrast, complaints about mere

regulatory failings or violations of company policy cannot

provide a predicate for a retaliation claim under the FCA. Cf.

id. (“Although ‘[c]orrecting regulatory problems may be a

laudable goal,’ it is ‘not actionable under the FCA in the

absence of actual fraudulent conduct.’” (alteration in original)

(quoting U.S. ex rel. Hopper v. Anton, 91 F.3d 1261, 1269 (9th

Cir. 1996))).13

In cases where reporting fraud was part of a plaintiff’s

regular job duties, the plaintiff’s actions must go beyond

merely doing her job to be considered protected activity.

Bennett v. Abiomed, Inc., No. 13-CV-12277-IT, 2020 WL 1429847,

at *6 (D. Mass. Mar. 24, 2020) (“[W]here an employee’s job

duties include overseeing government billings or payments,

protected conduct does not include the scope of conduct that

fall[s] within the employee’s regular duties.”); see Karvelas,

360 F.3d at 239 n.26 (“Some courts have held that employees who

investigate government billings or payments as part of their job

duties must ‘make it clear that the employee’s actions go beyond

the assigned task’ in order to demonstrate that they were

engaged in protected conduct and their employers were on notice

of that conduct.” (quoting Eberhardt v. Integrated Design &

Const., Inc., 167 F.3d 861, 868 (4th Cir. 1999))).

13 Although the First Circuit has embraced the distinction

between potential FCA claims and mere regulatory concerns, it

has also noted that a plaintiff claiming retaliation is not

required to prove “actual fraudulent conduct.” See Karvelas,

360 F.3d at 238 n.23 (“A retaliation claim under 31 U.S.C.

§ 3730(h) does not require a showing of fraud [. . .] .”).

b. Analysis

I find that Ms. Morgan-Lee has established by a

preponderance of the evidence that she engaged in protected

activity. The question is clouded somewhat by the fact that her

communications indiscriminately conflated matters that may be

subject to whistleblower protection with matters that plainly

are not.

Ms. Morgan-Lee’s communications about her findings feature

a varied and shifting array of recommendations about regulatory

problems unrelated to potential fraudulent billing. Moreover,

for much of the period in question, her major focus was

implementation of new billing procedures in anticipation of

upcoming Medicare rule changes; that the new rules had not yet

taken effect undercuts any suggestion that slowness in adapting

to the announced change was tantamount to fraud.

Even further afield are Ms. Morgan-Lee’s repeated, and

sometimes strident, reports about instances when therapists

provided services before 7 a.m. or after 7 p.m., and her reports

about the way salaried employees completed their timesheets.

These may have been violations of TRM policy, but they do not

seem to have anything to do with false or fraudulent Medicare

reimbursements. There was little developed evidence about the

source or purpose of TRM’s 7-a.m.-to-7-p.m. policy,14 but it

seems to be a matter of private concern to TRM, with no impact

on the applications for Medicare reimbursement filed by TRM’s

clients.

Although Ms. Morgan-Lee’s reporting on regulatory

deficiencies and violations of TRM rules cannot be considered

protected activity, Karvelas, 360 F.3d at 237, she also focused

significant attention on billing issues, which do implicate

concerns about potential FCA violations. Her emails with Ms.

Rajagopal express concerns about TRM’s billing practices, and

her emails with Mr. St. Jacques point to specific instances in

which billing practices might reasonably be expected to lead to

inaccurate or misleading reimbursement claims. These specific

instances also support the inference that Ms. Morgan-Lee’s

later, less-detailed communications with Mr. Scott and with

TRM’s owners were aimed at raising concerns about improper

billing practices that could ultimately contribute to FCA

violations.

14 It appears that work done outside of TRM’s ordinary workday

may have obligated the company to pay overtime rates. One of

Ms. Morgan-Lee’s notations also implies that she was concerned

about patients being too fatigued to receive treatment if

therapists treated them at odd hours. [See Ex. 33 (“Deb, OTR,

still in building very late at night, one patient missed Rx ‘due

to fatigue’ Sat pm (she was there til 1030pm)[.]”)].

The fact that Ms. Morgan-Lee’s first call to a TRM owner

(Mr. Pontolilo) sparked him to request a comprehensive review by

ownership of TRM’s billing and documentation practices,

reinforces Ms. Morgan-Lee’s contention that the issues she was

raising went beyond mere regulatory or internal company policy

concerns. Importantly, the fact that Ms. Morgan-Lee went

outside of her typical reporting structure and communicated

directly with TRM’s owners demonstrates that she exceeded her

assigned duties and thus engaged in protected conduct, even

under the heightened standard applicable to employees whose

regular duties include overseeing government billing or

detecting fraud. I note, however, that the evidence before me

does not show that Mr. Pontolilo knew or believed at that time

that the issues raised to him by Ms. Morgan-Lee, however

serious, involved fraud.

To be subject to the anti-retaliation protections of the

FCA, an employee need not expressly invoke the FCA. All that is

required is that the substance of the employee’s investigation

or reporting must be foreseeably linked to potential false or

fraudulent submissions to the government. Cf. Yesudian, 153

F.3d at 741 (“The protected conduct itself is simply ‘acts done

. . . in furtherance of an action under this section,’ and even

an investigation conducted without contemplation of — or

knowledge of the legal possibility of — a False Claims Act suit

can end up being ‘in furtherance’ of such an action.”

(alteration in original) (quoting 31 U.S.C. § 3730(h))).

The fact that many of Ms. Morgan-Lee’s reports are poorly

organized and mix protected topics with unprotected ones is

relevant in drawing inferences about the reasons that she was

fired. But the evidence is clear that some of Ms. Morgan-Lee’s

communications addressed potential false claims for payment

within the meaning of the FCA, and that some of her

communications clearly went outside of her usual duties.

Accordingly, I find and conclude she has shown by a

preponderance of the evidence that she engaged in protected

activity.

2. Employer Knowledge

a. Legal Standard

To prove that an employer had knowledge of an employee’s

protected activity, the employee need only show that the

employer had “general corporate knowledge” of the activity. See

Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000)

(“Neither this nor any other circuit has ever held that, to

satisfy the knowledge requirement, anything more is necessary

than general corporate knowledge that the plaintiff has engaged

in a protected activity.”); see also Harrington v. Aggregate

Indus. Ne. Region, Inc., 668 F.3d 25, 32 (1st Cir. 2012)

(holding, in the context of a motion for summary judgment, that

“the fact that high-level [. . .] executives learned of the

appellant’s whistleblowing several months before his firing

suffices to show knowledge”).

There is no requirement that the employer recognize that

the employee might bring an FCA action or even that the employer

know of the FCA. Rather, it is adequate for a plaintiff

employee to show that the employer knew that the employee was

engaged in “investigation or other activity concerning false or

fraudulent claims that the employer knowingly presented to the

federal government.”15 Karvelas, 360 F.3d at 239.

The First Circuit has recognized that the standard for

establishing employer knowledge that an employee was engaged in

protected activity is different “where an employee’s job

responsibilities involve overseeing government billings or

payments.” Maturi v. McLaughlin Rsch. Corp., 413 F.3d 166, 173

(1st Cir. 2005). When an employee has such responsibilities,

the employee’s “burden of proving that [her] employer was on

notice that [she] was engaged in protected conduct should be

15 Although TRM did not submit claims directly to the government,

it was well-understood throughout the organization that its

billings would ultimately become part of Medicare reimbursement

requests. A submission to the government need not be direct to

establish liability for a false claim under the FCA. See

Guilfoile, 913 F.3d at 187 (“A ‘non-submitting’ entity that

knowingly causes the submission of a false claim may be liable

under the FCA even if the entity directly submitting the claim

to the government lacks the requisite mental state.”).

heightened.” Id. The employee “must make it clear that [her]

actions go beyond [her] regular duties to establish that [her]

employer was on notice that [she] was engaged in protected

conduct.” Id. at 172-73.

For employees, like Ms. Morgan-Lee, with auditing or fraud-

reporting responsibilities, “such an employee can put [her]

employer on notice by ‘any action which [. . .] would put the

employer on notice that [FCA] litigation is a reasonable

possibility.’” Id. at 173 (final alteration in original)

(quoting Eberhardt v. Integrated Design & Const., Inc., 167 F.3d

861, 868 (4th Cir. 1999)). “Employees subject to the heightened

burden ‘must make clear their intentions of bringing or

assisting in an FCA action in order to overcome the presumption

that they are merely acting in accordance with their employment

obligations.’” Id. (quoting U.S. ex rel. Ramseyer v. Century

Healthcare Corp., 90 F.3d 1514, 1523 n.7 (10th Cir. 1996)).

b. Analysis

There is no question that TRM knew about Ms. Morgan-Lee’s

efforts to identify and remedy billing failures at TRM and that

TRM knew such billing failures could lead to the submission of

false or fraudulent claims for Medicare reimbursement. Such

awareness, however, is not necessarily the same thing as knowing

that Ms. Morgan-Lee was engaged in protected activity. After

all, Ms. Morgan-Lee’s ordinary job responsibilities included

conducting audits and reporting potential fraud. This is the

very reason for the heightened standard required under the First

Circuit’s Maturi decision.

That routine duties of auditors include detecting and

reporting fraud does not turn every auditor into an FCA

whistleblower. Auditors are not afforded greater protections

from adverse employment actions than other at-will employees

merely because their ordinary duties may include reporting about

matters that are subject to the FCA.

In deciding whether Ms. Morgan-Lee’s actions gave TRM

notice of the possibility of FCA litigation and thus met the

heightened standard of Maturi, I give substantial weight to her

specific references to whistleblower protections as such.

Although it is not clear whether she or TRM knew precisely which

statutory protections she was invoking, knowledge of the FCA is

not required for whistleblower protection. Karvelas, 360 F.3d

at 238 (“[J]ust as the plaintiff is not required to know that

his investigation reasonably could lead specifically to a False

Claims Act action, the employer need not know that the employee

has filed or plans to file a qui tam action, nor even

necessarily be aware of the existence of the FCA.”).

Ms. Morgan-Lee’s references to whistleblower protections in

her emails to Mr. Scott gave the company general corporate

knowledge that she was engaging in something beyond her ordinary

duties as an internal auditor and that she was considering

bringing or assisting in a suit alleging FCA violations. See

Maturi, 413 F.3d at 173.

Accordingly, even under the heightened burden associated

with her position as an employee with audit responsibilities, I

find and conclude that Ms. Morgan-Lee has shown by a

preponderance of the evidence that she provided TRM with general

corporate knowledge of her protected activity. Although her

audit responsibilities were a part of her regular job, her

references to fraud and whistleblower protections were

sufficient to put TRM on notice that she was engaged in

protected activity beyond the scope of her typical duties.

The chronology of these communications is significant. Ms.

Morgan-Lee’s earliest references to “whistle blowing” date to

the beginning of November 2011,16 after Mr. Scott and Ms.

Rajagopal had already begun conferring about how to respond to

16 As noted above, in an email dated November 10, 2011, Ms.

Morgan-Lee asserted to Mr. Scott that, “I absolutely informed

you on the phone on Friday November 4, 2011 that my concerns

were along the lines of ‘retaliation of internal whistle

blowing’ and I informed you that I felt being unfairly treated

due to me informing Uma of certain findings.” [Ex. 28]. By

this account, November 4, 2011, would be Ms. Morgan-Lee’s

earliest reference to “whistle blowing.” I do not find Ms.

Morgan-Lee’s reconstruction of the November 4, 2011, telephone

conversation fully credible. In the final analysis, this does

not change my ultimate finding that she provided TRM with

general corporate knowledge of her protected activity before the

allegedly retaliatory action took place.

Ms. Morgan-Lee’s repeated absences. [See Ex. 40 (email chain

beginning November 1, 2011)]. Indeed, Ms. Morgan-Lee

acknowledged in her trial testimony that she had not even used

the term “fraud” in her communications with Mr. Scott as of

October 28, 2011, but had referred only to “improper billing.”

[See Dkt. No. 349 p. 76]. As discussed below, this timing

strongly undercuts any inference that the problem of her

unexpected absences was raised as a pretext or that Ms. Morgan-

Lee was discharged “because of” her protected activity.

3. Retaliatory Causation

a. Legal Standard

Under 31 U.S.C. § 3730(h), an employee is entitled to

relief if she was discharged “because of” her lawful actions

taken in furtherance of an FCA suit or other efforts to stop an

FCA violation. 31 U.S.C. § 3730(h). This language imposes a

but-for standard of causation in FCA retaliation cases. See

Lestage v. Coloplast Corp., 982 F.3d 37, 46 (1st Cir. 2020)

(“[R]etaliation claims under the False Claims act must be

evaluated under the but-for causation standard.”).

Ms. Morgan-Lee can prevail on her retaliation claim only if

she can demonstrate that, but for her FCA-protected activity,

she would have kept her job.

b. Analysis

As discussed above, I have found that some portion of Ms.

Morgan-Lee’s reporting concerned allegations of billing

irregularities that would fall within the ambit of the FCA. I

have found, further, that her communications – though poorly

organized – were sufficient to put her employer on notice that

she considered the issues to be serious to a degree that

exceeded her ordinary job duties. Thus, the evidence is

sufficient to make out the first two elements of a retaliation

claim.

The question, then, is whether Ms. Morgan-Lee would have

been retained at TRM but for her protected conduct. I find and

conclude that the answer is no.

While some of Ms. Morgan-Lee’s communications rose to the

level of protected activity, the evidence does not persuade me

that it was her protected activity that led to her firing.

Considering the record of contemporaneous emails and weighing

the witnesses’ testimony, what stands out is that other factors

— factors that readily warranted discipline or discharge — were

far more critical than any suggestion of protected activity.

There are, undoubtedly, cases in which even a modest

showing of protected activity may support an inference of

retaliation, particularly when the timing is suspicious and when

there are no other explanatory factors. But this is not such a

case. Ms. Morgan-Lee had been raising concerns about billing

practices for many months – she says years – before there was

any hint of disciplinary concerns. On the contrary, her

supervisor, Ms. Rajagopal, went to some lengths to retain Ms.

Morgan-Lee as an employee and to support Ms. Morgan-Lee’s

efforts to improve TRM’s practices and procedures. Even if Ms.

Rajagopal’s support may have been intermittent or may have

fallen short of what Ms. Morgan-Lee expected, the evidence does

not show that Ms. Rajagopal had any intention to fire — or

otherwise retaliate against — Ms. Morgan-Lee in a manner

actionable under the FCA.

Friction between Ms. Morgan-Lee and Ms. Rajagopal was

escalated to become an “HR” matter only after Ms. Morgan-Lee

repeatedly missed work on minimal notice. Even then, TRM

officials explored whether some form of extended leave or

accommodation might be appropriate. Thereafter, Ms. Morgan-Lee

effectively ensured her discharge by refusing to engage with Mr.

Scott and by refusing to give details of her claimed findings of

impropriety. An employer would not be required to retain an

employee who responded in that manner; it is, after all, an

auditor’s job to report her findings.

The evidence demonstrated that there were several key

factors that led to Ms. Morgan-Lee’s discharge, none of which

implicate protected activity. I find that she was fired for

these reasons, not in retaliation “because of” her investigation

or reporting of any potential violations of the FCA. I rehearse

that evidence below.

Testimony and exhibits showed that Ms. Morgan-Lee was

highly dedicated to her work and cared very much that the

company follow its own policies and the law. The record also

shows, however, that she behaved towards her colleagues and

superiors in a way that TRM management could reasonably have

viewed as unproductive and disruptive. She sent long emails to

colleagues at all hours of day and night; she repeatedly

insulted the capabilities of her coworkers while insisting that

the culture of speaking ill of coworkers was making her sick

with stress; she repeatedly responded to only parts of work

emails, ignoring questions asked of her; and she often failed to

differentiate real fraud concerns from generalized gripes about

corporate operations or interpersonal issues. All these

challenges impeded Ms. Morgan-Lee’s efforts to convey her

findings.

I am not called upon in this case to determine who is

ultimately “at fault” in the deterioration of the working

relationship between Ms. Morgan-Lee and her colleagues at TRM.

Ms. Morgan-Lee’s own written communications are frequently

jumbled, but some of Ms. Rajagopal’s are difficult to follow as

well. Furthermore, there is scant basis on which to reliably

reconstruct the oral conversations between Ms. Morgan-Lee and

her colleagues.

Ms. Morgan-Lee was adamant in her testimony that she was

subjected to retaliatory harassment. Based on evidence

discussed above, however, I find that her perceptions were

frequently distorted. Key discrepancies in the evidence suggest

that some of Ms. Morgan-Lee’s testimony about interactions with

her colleagues is unreliable. The most notable discrepancies

are in Ms. Morgan-Lee’s account of the meeting on October 28, an

account that was directly contradicted by Mr. Scott’s credible

testimony. Ms. Morgan-Lee described a profane tirade in which

Ms. Rajagopal purportedly threatened anyone with “the F-ing

balls to report fraud.” [See Dkt. No. 349 p. 75]. It is

difficult to square Ms. Morgan-Lee’s account with her

acknowledgement that she did not even use the word “fraud” when

speaking to Mr. Scott about the meeting later the same day.

[See id. at 76]. Moreover, given the large number of people

present at the meeting, the absence of corroborating testimony

is glaring.

In a similar vein, Ms. Morgan-Lee contended that her

purpose in October and November was to report fraud committed or

condoned by Ms. Rajagopal. This is difficult to square with her

contemporaneous email requesting that Ms. Rajagopal attend the

November 14 meeting with Mr. Scott. [See Ex. 47].

Even if Ms. Rajagopal and other senior personnel from TRM

were inept in their management of Ms. Morgan-Lee, the evidence

does not show that they were animated by retaliatory motives. I

find by a preponderance of the evidence that the communications

and interactions that Ms. Morgan-Lee saw as personal attacks and

harassment were attempts – whether skillful or not – to manage

the company. While the tone of some interactions was fraught,

Ms. Morgan-Lee has not shown that TRM or its managers set out to

harass her, let alone that their intentions were retaliatory.

Ms. Morgan-Lee’s behavior before October 27, 2011, would

itself have provided a valid, nonretaliatory reason to fire her,

and it doubtless contributed to her eventual termination. The

evidence shows, however, that the issue that ultimately

motivated TMR to dismiss Ms. Morgan-Lee was a combination of her

repeated unexcused absences from work in the weeks preceding her

firing and her unwillingness to provide TRM with details of the

fraud that she claimed to have found.

As for Ms. Morgan-Lee’s absences, the communications to her

from Mr. Scott and from TRM’s attorneys made clear that her

unexcused right to absences were a significant issue. Mr. Scott

spelled out explicitly that TRM needed a Director of Clinical

Services who would be reliably available to discharge the duties

of the position, and that she could not remain in the position

if she continued to take unannounced leave. Her unexcused

absences were unquestionably a fireable offense, and I find and

conclude that they were a central cause of her dismissal.

Ms. Morgan-Lee’s first invocation of “whistleblower”

protections, on November 4, at the earliest, would have put her

employer on notice that her fraud claims went beyond her

ordinary reporting responsibilities. But that came only after

her unscheduled absences had been identified as a serious

problem.

Ms. Morgan-Lee’s unwillingness to provide details necessary

for TRM to investigate her claims, came roughly at the same time

as she asserted her status as a “whistleblower.” In any event,

Mr. Scott credibly testified that Ms. Morgan-Lee refused to

provide him with any specific examples of the fraudulent conduct

to which she continually referred. In her own testimony, and in

contemporaneous emails, Ms. Morgan-Lee acknowledged as much.

She was a senior employee tasked with auditing records and

detecting billing issues. It was her job to report significant

findings in that arena. It was unquestionably a dereliction of

her duties to spend weeks asserting that she had found fraud and

then refuse to provide details to company executives and company

counsel. Her refusal to cooperate with TRM management in this

primary facet of her duties was, too, a fireable offense that

was central to her dismissal.

I note that Ms. Rajagopal and the owners of TRM appeared to

care about billing properly and that they went to significant

lengths to continue working with Ms. Morgan-Lee, even though she

was challenging as a colleague. Ms. Rajagopal sent several

emails to her team admonishing them that they needed to put more

effort into billing correctly, and representatives of the

company, including one of the owners, spent considerable time

speaking with Ms. Morgan-Lee to seek details about the

fraudulent practices that she claimed to have uncovered. None

of the correspondence in evidence suggests that management at

TRM sought to oust Ms. Morgan-Lee to prevent her from raising

her concerns, or to punish her for raising them.

The testimony and the contemporaneous correspondence that

was offered in evidence reflect a near-total breakdown in the

relationship between Ms. Morgan-Lee and her peers and

supervisors. Firing a worker because of a breakdown in the

employment relationship is legitimate and nonretaliatory.

Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 73 (1st Cir. 1984)

(“[A]n inability to get along with people is a legitimate non-

discriminatory reason for firing an employee.”); see also Ridge

v. Cape Elizabeth Sch. Dep’t, 77 F. Supp. 2d 149, 158 (D. Me.

1999) (employee’s “inability to work productively with her

supervisor” was a legitimate, nondiscriminatory reason for

termination).

Ms. Morgan-Lee’s contemporaneous emails also reflect her

own assessment that she was too stressed to do her job

effectively. This, too, is a legitimate, nonretaliatory reason

for firing her. Candelore v. Clark Cty. Sanitation Dep’t, 975

F.2d 588, 591 (9th Cir. 1992) (per curiam) (legitimate,

nondiscriminatory reason for transferring work responsibilities

to another employee was that plaintiff “was suffering from job

related stress”).

One can imagine circumstances in which an employer’s

efforts to squelch protected FCA activity could take the form of

a long-term campaign of harassment, producing stress that

diminishes an employee’s performance and results in her firing.17

The evidence in this case, however, does not support any such

finding. The communications that Ms. Morgan-Lee decried as

“undermining” her efforts were fully consistent with a good-

faith effort to acknowledge and implement an auditor’s

recommendations, while simultaneously attempting to maintain an

appropriate separation of authority between the company’s

operational and auditing functions.

I have considered the scope of the written evidence, the

plausibility and consistency of the witnesses’ testimony, and

the demeanor of the testifying witnesses. I find and conclude

17 If such a campaign of harassment were to cause an employee to

quit, it would be a constructive dismissal.

that Ms. Morgan-Lee has not sustained her burden of proving by a

preponderance of evidence that she was subjected to adverse

employment action as retaliation for her protected FCA activity,

whether in the initial period of heightened friction (from

Spring of 2011 forward) or in the period from the end of October

through her dismissal in early December of 2011.

In sum, TRM had multiple legitimate, nonretaliatory reasons

to fire Ms. Morgan-Lee, and it is more likely than not that one,

or some combination, of those reasons was the cause of her

termination. In light of all the evidence developed over the

course of two trials, I find that Ms. Morgan-Lee has not shown

by a preponderance of the evidence that her protected activity

was a but-for cause of her termination.

B. RIWPA Retaliation

Ms. Morgan-Lee also alleges that TRM violated the Rhode

Island Whistleblowers’ Protection Act (RIWPA), R.I. Gen. Laws §§

28-50-1 to -9. In relevant part, the RIWPA provides as follows:

An employer shall not discharge [. . .] an employee

[. . .] [b]ecause the employee reports verbally or in

writing to the employer or to the employee’s supervisor

a violation, which the employee knows or reasonably

believes has occurred or is about to occur, of a law or

regulation or rule promulgate under the laws of this

state [. . .] or the United States [. . .].

28 R.I. Gen. Laws Ann. § 28-50-3. There has been little

litigation of the RIWPA, and there is no binding decision as to

what causation standard the RIWPA applies. One federal case

explains that the statute requires a “‘substantial nexus’

between the protected report of a violation by the employee and

the adverse employment action, which must be based on more ‘than

pure speculation.’” Chagnon v. Lifespan Corp., No. CV 15-493S,

2017 WL 3278952, at *7 (D.R.I. June 19, 2017) (quoting Belanger

v. A & F Plating Co., No. Civ. A. 98-2339, 2002 WL 1288782, at 4

(R.I. Super. Ct. June 7, 2002)).

Despite this somewhat unusual turn of phrase — more than

pure speculation — appearing in a few cases, it appears that

courts generally interpret the RIWPA using the same frameworks

that apply to the interpretation of the FCA. In deciding

motions for summary judgment, courts interpreting the RIWPA

apply the familiar burden-shifting framework from McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973), that

applies to FCA summary judgment determinations. See Harrington,

668 F.3d at 31 (adopting the McDonnell Douglas framework for FCA

cases in the First Circuit); Chagnon at *7 (applying the

McDonnell Douglas framework); Chapman v. R.I. Veterans’ Home,

No. 01-4767, 2001 WL 36410316, at *3 (R.I. Super. Ct. Sept. 19,

2012) (same). Rhode Island courts typically then apply a but-

for standard of causation, explicitly or implicitly. See, e.g.,

Chapman, 2001 WL 36410316, at *7 (“In other words, the jury had

to determine whether Plaintiff, despite all of her alleged

mistakes and missteps, would not have been subject to discipline

and termination ‘but for’ her reporting activity.”).

I am persuaded that, as a matter of Rhode Island law, the

use of the term “because” in the RIWPA means essentially the

same thing as the term “because of” in the FCA. Accordingly,

Ms. Morgan-Lee’s retaliation claim under the RIWPA must fail in

light of my conclusion that Ms. Morgan-Lee has not proven that

her protected FCA whistleblowing activity was a but-for cause of

her discharge from TRM. Accordingly, Ms. Morgan-Lee has not

proven by a preponderance of the evidence that she was

terminated in violation of the RIWPA.

V. JUDGMENT

For the reasons set forth above, I find that Ms. Morgan-Lee

has not shown by a preponderance of the evidence that she was

terminated from her position at TRM because of activity

protected by the FCA or by the RIWPA. Accordingly, I direct

judgment for defendant TRM.

/s/ Douglas P. Woodlock

DOUGLAS P. WOODLOCK

United States District Judge