Marie DiFiore v. CSL Behring LLC , 879 F.3d 71 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 16-4297
______
MARIE DIFIORE,
Appellant
v.
CSL BEHRING, LLC
______
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No. 2-13-cv-05027)
District Judge: Honorable Gerald A. McHugh
______
Argued September 11, 2017
Before: VANASKIE, RENDELL and FISHER, Circuit
Judges.
(Opinion Filed: January 3, 2018)
James A. Bell, IV ARGUED
Jennifer Calabrese
Bell & Bell
1617 John F. Kennedy Boulevard
Suite 1020, One Penn Center
Philadelphia, PA 19103
Counsel for Appellant
David S. Fryman ARGUED
Kelly T. Kindig
Ballard Spahr
1735 Market Street, 51st Floor
Philadelphia, PA 19103
Counsel for Appellee
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
Marie DiFiore asserted claims against her former
employer, CSL Behring, for retaliation in violation of the
False Claims Act, and for wrongful discharge under a theory
of constructive discharge in violation of Pennsylvania state
2
law. The False Claims Act (“FCA”) includes an anti-
retaliation provision for employee whistleblowers who
engage in activity protected by the FCA. The District Court
granted summary judgment to CSL Behring on the wrongful
discharge claim because DiFiore had failed to show
constructive discharge as a matter of law. For that same
reason, the District Court did not permit DiFiore to argue that
constructive discharge was an adverse action suffered in
retaliation for protected activity. The FCA retaliation claim
proceeded to trial. The judge instructed the jury that the FCA
retaliation provision required that protected activity be the
“but-for” cause of adverse actions against DiFiore. The jury
found in favor of CSL Behring. DiFiore appeals the District
Court’s jury instruction using the “but-for” causation
standard, the grant of summary judgment, and one additional
jury instruction. For the reasons that follow, we affirm and
hold that an employee’s protected activity must be the “but-
for” cause of adverse actions to support a claim of retaliation
under the FCA.
I.
A. Factual Background
DiFiore worked for CSL Behring from 2008 until her
resignation in 2012, first as an Associate Director of
Marketing/New Products, and then, after a promotion in
August 2011, as Director of Marketing. While at CSL, and
particularly after her promotion, DiFiore became concerned
about the activities of CSL and its employees in marketing
drugs for off-label use and including off-label use in sales
forecasts. Off-label use is the unapproved use of an approved
drug, or the use of a drug for purposes other than those that
have been approved by the FDA. The incidents that prompted
DiFiore’s concerns included comments about off-label
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marketing strategies, relationships with medical device
manufacturing companies, and discussions about fines issued
to another company for off-label marketing. DiFiore
expressed her concerns to her supervisors, and she contends
that CSL initiated a third-party compliance audit in part
because of her complaints.
DiFiore alleges that as a consequence of her protected
conduct, she suffered the following six adverse employment
actions, all of which took place after her promotion to
Director of Marketing.
1. January 2012 Warning Letter
DiFiore and another employee, Allan Alexander, were
both on the launch team for a new drug. In the first month of
this team’s formation, DiFiore and Alexander clashed twice.
In the first incident, Alexander and DiFiore had a
disagreement over the telephone that culminated with
Alexander abruptly hanging up on DiFiore. DiFiore
complained to her supervisor about Alexander’s
unprofessional behavior. In the second incident, DiFiore and
Alexander had a disagreement at a team meeting that was so
heated that the supervisor had to order a break. Afterward,
DiFiore met with the supervisor and another manager to
discuss her behavior, and DiFiore claims they “scolded” her.
Subsequently, both DiFiore and Alexander received warning
letters from Human Resources in January 2012. After this
incident, CSL hired an employment coach, at a cost of about
$45,000, to work specifically with DiFiore to develop her
skills in leading the launch team.
2. February 2012 Performance Review
In a February 2012 mid-year performance review,
DiFiore received “needing improvement” evaluations in
several areas, including team leadership. Before her
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promotion, she consistently received “strong” or
“outstanding” evaluations. In response to this review, DiFiore
wrote a letter expressing her belief that the criticism and
lower ratings were due to her complaints about Alexander and
her statements to auditors regarding compliance matters.
3. February 2012 Warning Letter
Also in February 2012, DiFiore received a warning
letter regarding her nonpayment of her company credit card.
The credit card company had canceled her card because it
was more than 180 days past due. DiFiore stated in her
deposition that this warning letter was “appropriate.” DiFiore
did not know whether anyone in a similar situation was
disciplined, but she believed that others had not received
discipline for similar conduct. She offered no evidence to
support that belief.
4. Deteriorating Relationship with Supervisors
in 2011 and 2012
DiFiore claims that beginning in approximately
October 2011, her relationship with her supervisors and other
management began to deteriorate because of her protected
activity. She alleged that one superior became “hostile,”
started documenting her work activities, reprimanded her for
complaining too much, and told DiFiore she was “too black
and white” and that she needed to “understand shades of
gray” as a supervisor. Another superior “completely avoided”
DiFiore and refused to make eye contact in the hallway. Other
supervisors criticized her during meetings that she was
responsible for leading. DiFiore alleges that her supervisors
“became ‘hypercritical’ of skills that had never previously
been called into question.”
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5. Change in Duties in Early 2012
In March or April 2012, DiFiore was removed from a
committee. The parties dispute the significance of her
committee participation as a job responsibility. Both parties
agree, however, that her annual review included participation
on this committee as an element of her overall job
performance. She was also instructed to stop attending
meetings with a particular drug manufacturer client.
6. May 2012 Performance Improvement Plan
In May 2012, DiFiore was placed on a Performance
Improvement Plan (“PIP”). This plan extended the
employment coach hired by CSL to work with DiFiore for an
additional 45 days. The PIP identified the following areas for
improvement: effectively leading her drug-launch team;
improving communications and follow-up; developing
effective plans; asking questions when unclear about
assignments; submitting assignments in a timely manner;
avoiding intrusion into others’ areas of responsibility; and
demonstrating an ability to “navigate organizational
dynamics.” Under the PIP, DiFiore was required to improve
in the designated areas within 45 days or she could be subject
to discipline up to and including termination.
DiFiore argues that by placing her on a PIP, CSL
indicated to her that she would be terminated. To support this
assumption, DiFiore explains that of the 23 employees CSL
identified as having been on PIPs since 2008, fourteen
resigned. Of those fourteen, thirteen resigned without
severance. Only four employees completed their PIP, and no
employee at DiFiore’s level or higher had successfully
completed a PIP.
DiFiore received the PIP on a Monday. Two days later,
she reached out to a supervisor and an HR employee and
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requested a meeting to discuss an amicable separation. This
meeting was scheduled for that Friday, but was canceled at
the last minute without explanation. The following Monday,
the first business day after the canceled meeting, DiFiore
submitted her resignation letter.
B. Procedural History
DiFiore alleges that CSL wrongfully discharged her
under Pennsylvania law and retaliated against her in violation
of the FCA, 31 U.S.C. § 3730(h). After discovery, CSL
moved for summary judgment. The District Court granted
summary judgment on the wrongful discharge state law claim
and held that DiFiore could not rely upon constructive
discharge as an adverse action in her FCA claim. However,
the court denied summary judgment on the retaliation claim.
After briefing on the issue, the District Court issued an
Order that it would instruct the jury that the FCA retaliation
claim required “but-for” causation. At the conclusion of the
jury trial, the judge instructed the jury on the adverse action
element of DiFiore’s retaliation claim, instructing them to
consider the totality of the circumstances and specifically
listing four of the actions—the two warning letters, the mid-
year performance review, and the PIP—DiFiore alleged were
adverse to her.
The parties did not dispute whether the FCA applies or
whether DiFiore engaged in protected conduct. Instead, they
disagree over whether DiFiore produced sufficient evidence
that the allegedly retaliatory conduct rose to the level of
adverse action as required by the FCA.
II.
The District Court exercised jurisdiction under 28
U.S.C. §§ 1331 and 1367(a). This Court exercises jurisdiction
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under 28 U.S.C. § 1291. DiFiore presents three issues on
appeal. First, she argues that the District Court applied the
incorrect standard of causation for her FCA retaliation claim
when it instructed the jury using the “but-for” standard of
causation instead of the “motivating factor” standard. This
Court exercises plenary review over whether jury instructions
state a proper legal standard. Woodson v. Scott Paper Co.,
109 F.3d 913, 929 (3d Cir. 1997). Second, DiFiore argues that
the District Court incorrectly granted summary judgment to
CSL on her claim of constructive discharge. We review the
District Court’s grant of summary judgment de novo.
Montone v. City of Jersey City, 709 F.3d 181, 189 (3d Cir.
2013). Third, DiFiore argues that the District Court abused its
discretion when characterizing the alleged adverse actions in
its instruction to the jury. We review for abuse of discretion
whether jury instructions are confusing or misleading.
Woodson, 109 F.3d at 929.
III.
A. The Causation Standard
The District Court correctly applied Supreme Court
case law when it instructed the jury using the “but-for”
causation standard for DiFiore’s FCA relation claim. See
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009);
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533
(2013). Under the FCA’s anti-retaliation provision, an
employee is entitled to relief if she was “discharged, demoted,
suspended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of
employment because of lawful acts” conducted in furtherance
of an FCA action. 31 U.S.C. § 3730(h)(1).
The parties dispute what causation standard applies to
the statutory language “because of” in § 3730(h). To prove
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retaliation under the FCA, a plaintiff must show (1) that he
engaged in protected conduct, and (2) that he was
discriminated against because of his protected conduct.
Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176, 186
(3d Cir. 2001); U.S. ex rel. Hefner v. Hackensack Univ. Med.
Ctr., 495 F.3d 103, 110 (3d Cir. 2007). The District Court
ruled that DiFiore was required to show that her protected
activity was the “but-for” cause of an adverse action, while
DiFiore contends that a lower standard applies and she should
have only been required to prove that her protected activity
was a “motivating factor” in the adverse actions taken by
CSL.
DiFiore argues that this Court’s decision in Hutchins
controls and compels the application of the “motivating
factor” standard. 253 F.3d at 186. This argument fails because
the language DiFiore relies on in Hutchins was dictum. Id. In
Hutchins, we affirmed a grant of summary judgment in favor
of an employer on an FCA retaliation claim because the
employee failed to prove that he engaged in protected conduct
and that he had put his employer on notice of possible FCA
litigation. Because he failed to meet these elements, we never
applied the causation standard, which we recited in dictum as
the “motivating factor” standard. Id. That dicta does not
compel us to apply the standard here.
Even if the “motivating factor” standard had been part
of our holding in Hutchins, the Supreme Court’s subsequent
decisions in two cases, Gross and Nassar, undermine the
rationale for applying that standard. These intervening
decisions would, in any event, allow us to reconsider contrary
prior holdings without having to resort to an en banc
rehearing. In re Krebs, 527 F.3d 82, 84 (3d Cir. 2008) (“A
panel of this Court may reevaluate the holding of a prior
9
panel which conflicts with intervening Supreme Court
precedent.”).
In Gross, the Supreme Court held that the ordinary
meaning of “because of” in the Age Discrimination in
Employment Act required a plaintiff to prove that age was the
“but-for” cause of the employer’s adverse action. Gross, 557
U.S. at 176. The Court prefaced its analysis with the premise
that “[s]tatutory construction must begin with the language
employed by Congress and the assumption that the ordinary
meaning of that language accurately expresses the legislative
purposes.” Gross, 557 U.S. at 175. The Court went on to
consider dictionary definitions of “because of” and explain
that “the ordinary meaning of the ADEA’s requirement that
an employer took adverse action ‘because of’ age is that age
was the ‘reason’ that the employer decided to act.” Id. at 176.
The Court therefore held that disparate treatment claims
under the ADEA require a plaintiff to prove that age was the
‘but-for’ cause of the adverse employment action. Id. at 180.
After Gross, the Supreme Court again addressed
causation standards in the context of retaliation claims. In
Nassar, the Supreme Court held that the use of “because” in
the Title VII anti-retaliation provisions requires a plaintiff to
prove that the desire to retaliate was the “but-for” cause of the
adverse employment action. Nassar, 133 S. Ct. at 2527–28,
2533. The majority analyzed Title VII as prohibiting two
separate categories of wrongful conduct and applying distinct
causation standards to those categories. The first category—
status-based discrimination on the basis of race, color,
religion, sex or national origin—could be proven using the
motivating factor standard because the language prohibiting
this type of discrimination expressly required the lower
burden. 42 U.S.C. §2000e-2(a), (m) (“an unlawful
employment practice is established when the complaining
10
party demonstrates that race, color, religion, sex, or national
origin was a motivating factor for any employment practice,
even though other factors also motivated the practice”). In
contrast, the language of the second category of prohibited
conduct—employer retaliation on account of an employee
having opposed, complained of, or sought remedies for
discrimination—contains no language specifying the lower
standard of motivating factor. 42 U.S.C. § 2000e-3(a).
To interpret Title VII’s anti-retaliation provision, the
Court looked to its earlier decision in Gross for guidance. The
Court held that the word “because” in the Title VII anti-
retaliation provision had the same meaning as the words
“because of” in the ADEA. Consequently, Title VII
retaliation claims require proof that the protected activity was
the “but-for” cause of the adverse employment action.
Nassar, 133 S. Ct. at 2533. In arriving at this conclusion, the
Court also relied on traditional tort causation principles. It
held that those principles apply to federal statutory claims of
workplace discrimination because the “but-for” causation
required for tort claims “is the background against which
Congress legislated in enacting Title VII, and these are the
default rules it is presumed to have incorporated, absent an
indication to the contrary in the statute itself.” Id. at 2524.
Against this background, the Court held that the motivating
factor test only applied to status discrimination under Title
VII because the language of the statute explicitly required it.
Because such language was not present in the anti-retaliation
provisions of Title VII, “but-for” causation applied.
Here, the District Court concluded that it was
compelled by Nassar to apply “but-for” causation to
DiFiore’s FCA retaliation claim because of the “identical
language” in the FCA, the ADEA, and Title VII. The court
relied on Nassar’s logic and instructed the jury that DiFiore’s
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protected activity must have been the “but-for” cause of any
adverse employment action she suffered.
The District Court’s reasoning was sound given not
only the Supreme Court’s precedent, but also given our own
case law addressing the effect of Gross and Nassar in the
context of FMLA retaliation claims. In Egan v. Delaware
River Port Authority, the plaintiff asserted a FMLA retaliation
claim, 851 F.3d 263, 266–67 (3d Cir. 2017), urging that the
district court should have given a mixed motive instruction,
requiring less than “but-for” causation. The FMLA regulation
at issue in Egan prohibited employers from considering the
use of FMLA leave as a “negative factor” in an employment
decision. 29 C.F.R. § 825.220(c). We concluded that the
regulation, “which uses the phrase ‘a negative factor,’
resembles the ‘lessened causation standard’ in [the Title VII
prohibition against status-based discrimination] and it stands
in contrast to the ‘because’ language in the ADEA (at issue in
Gross) and Title VII’s anti-retaliation provision (at issue in
Nassar).” Egan, 851 F.3d at 273. Based on this language, we
applied a lessened causation standard requiring plaintiffs to
show only that the use of FMLA leave was a “negative
factor” in the adverse employment decision.
Unlike the language of the FMLA anti-retaliation
regulation, the language of the FCA anti-retaliation provision
uses the same “because of” language that compelled the
Supreme Court to require “but-for” causation in Nassar and
Gross. For this reason, the District Court correctly instructed
the jury that to find retaliation, it had to find that DiFiore’s
protected conduct was the “but-for” cause of the adverse
employment action.
For the foregoing reasons, retaliation claims under the
FCA require proof of “but-for” causation. We affirm the
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District Court’s instruction to the jury employing that
standard.
B. Constructive Discharge
In reviewing a grant of summary judgment, we must
“do as the district court was required to do.” First Jersey
Nat’l Bank v. Dome Petroleum Ltd., 723 F.2d 338, 338 (3d
Cir. 1983). That is, we must determine whether the record
contains any disputed issue of material fact, resolve any such
issue in favor of the non-movant, and determine whether the
movant is entitled to judgment as a matter of law. Id.
DiFiore filed a state common law claim for wrongful
discharge.1 Wrongful discharge requires that a plaintiff prove
either actual discharge or constructive discharge. Because she
was not discharged, DiFiore was required to prove
constructive discharge. In addition to her state law claim,
DiFiore asserts constructive discharge as an adverse action
for FCA retaliation purposes. We conclude that the District
Court’s grant of summary judgment in favor of CSL on
DiFiore’s wrongful discharge claim was proper, as was the
District Court’s ruling that the grant of summary judgment
foreclosed DiFiore’s argument that constructive discharge
was an adverse action under the FCA.
1
Under Pennsylvania law, the discharge of an at-will
employee is a tort if it would violate a clear mandate of public
policy. Weaver v. Harpster, 975 A.2d 555, 562 (Pa. 2009).
However, we need not reach the issue of whether there was a
discharge in violation of public policy, because there was no
“discharge” at all. DiFiore does not argue that she was
actually discharged, and we conclude that she was not
constructively discharged either. Rather, DiFiore resigned.
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Under Pennsylvania law, constructive discharge occurs
when working conditions are so intolerable that a reasonable
employee is forced to resign. Kroen v. Bedway Sec. Agency,
Inc., 633 A.2d 628, 633–34 (Pa. Super. Ct. 1993); Helpin v.
Trustees of Univ. of Pennsylvania, 969 A.2d 601, 614 (Pa.
Super. Ct. 2009), aff’d, 10 A.3d 267 (Pa. 2010). The concept
of constructive discharge is essentially identical for retaliation
claims under federal statutes: it occurs when “the employer
permitted conditions so unpleasant or difficult that a
reasonable person would have felt compelled to resign.”
Wiest v. Tyco Electronics Corp., 812 F.3d 319, 331 (3d Cir.
2016) (brackets omitted).
DiFiore failed to prove constructive discharge under
both Pennsylvania law and federal law. In Clowes v.
Allegheny Valley Hospital, we overturned a jury verdict and
held that the employee was not constructively discharged
when she alleged conduct that essentially amounted to close
or even “overzealous” supervision. 991 F.2d 1159, 1162 (3d
Cir. 1993). DiFiore complains of similar conduct. She may
have been subjected to difficult or unpleasant working
conditions, but these conditions fall well short of unbearable.
Importantly, DiFiore did not sufficiently explore alternative
solutions or means of improving her situation. She made no
attempt to comply with the PIP. When a meeting to discuss
the PIP was canceled, DiFiore chose to resign rather than
reschedule. She prematurely abandoned her attempt to meet
with CSL about the Performance Improvement Plan. She did
not demonstrate that she had no option left but to resign.
When the District Court decided that no reasonable
jury could find that DiFiore’s working conditions were so
intolerable that she was forced to resign, it correctly disposed
of both her Pennsylvania wrongful discharge claim and her
contention that a constructive discharge was part of CSL’s
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retaliatory conduct under the FCA. We affirm the grant of
summary judgment.
C. Specific Jury Instructions
We exercise plenary review over jury instructions for
misstatements of applicable law. Franklin Prescriptions, Inc.
v. New York Times Co., 424 F.3d 336, 338 (3d Cir. 2005).
When considering whether an instruction is misleading or
inadequate, however, we review only for abuse of discretion.
Woodson, 109 F.3d at 929. As long as “the instructions are
accurate in substance and understandable to lay persons, the
failure to use the exact words requested by counsel is not
reversible error.” Williams v. Mussomelli, 722 F.2d 1130,
1134 (3d Cir. 1983).
DiFiore contends that the District Court’s inclusion of
four primary incidents in the jury instructions—the two
warning letters, the mid-year performance review, and the
PIP—may have confused the jurors and led them to believe
that they were not permitted to consider evidence of other
incidents beyond those four events. DiFiore’s argument fails.
The District Court correctly instructed the jury that its
determination should take into account the totality of the
circumstances. The court instructed that the four events
occurred “among other things,” and it described DiFiore’s
allegation that her supervisors began to treat her in a hostile
manner after she raised her concerns. These instructions do
not misstate the law and do not mislead, prejudice, or confuse
the jury.
IV.
For the reasons explained above, we affirm the orders
of the District Court.
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