Recent Retaliation Case Illustrates Broad Scope of FCA Whistleblower Protection

A recent U.S. District Court decision in Mikhaeil v. Walgreens Inc. illustrates the broad scope of protections whistleblowers enjoy under the False Claims Act.

Mervat Mikhaeil worked as a Walgreens pharmacist from July 2012 until she was fired in July 2013. Mikhaeil alleges that she was fired for reporting her concerns about potential Medicare fraud. She reported the prescriptions she was concerned about to her supervisor, and was fired shortly thereafter. She then filed suit against Walgreens, alleging violations of the False Claims Act’s whistleblower protections.

Walgreens responded with a motion for summary judgment, contending that Mikhaeil’s report to her supervisor failed to provide notice of a potential FCA claim since her job responsibilities already required her to notify the company of any potential FCA liability.

The Court denied Walgreens’ motion, in part, ruling that the FCA does not require conduct to be “in furtherance of an action under this section” to be protected. On the contrary, any effort to stop an FCA violation is protected activity — including disclosures to supervisors and other internal staff.

In addition, the Court found that whistleblower protection does not require that an employee bringing a potential FCA violation to light have the specific intention of helping in the FCA action. The internal reporting accomplishes two things: it establishes an effort to halt an FCA violation and it provides notice to an employer that an employee is carrying out protected activity.

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