Alastair Crosbie v. Highmark Inc

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-1641
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ALASTAIR CROSBIE,
Appellant
v.
HIGHMARK INC.; HIGHMARK HEALTH OPTIONS;
GATEWAY HEALTH PLAN
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-19-cv-01235)
District Judge: Honorable Michael M. Baylson
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Submitted Under Third Circuit L.A.R. 34.1(a)
on March 21, 2022
Before: BIBAS, MATEY, and PHIPPS, Circuit Judges
(Filed: August 26, 2022)
_______________
Bryan R. Lentz
Kiersty DeGroote
BOCHETTO & LENTZ, P.C.
1524 Locust Street
Philadelphia, PA 19102
Peter R. Bryant
DILWORTH PAXON
457 Haddonfield Road, Suite 700
Cherry Hill, NJ 08002
Counsel for Appellant
Kim M. Watterson
Nicole J. Aiken-Shaban
REED SMITH LLP
225 Fifth Avenue, Suite 1200
Pittsburgh, PA 15222
Counsel for Appellees Highmark Inc. and Highmark Health
Options
Nina K. Markey
Alexa J. Laborda Nelson
LITTLER MENDELSON, P.C.
1601 Cherry Street, Suite 1400
Philadelphia, PA 19102
Counsel for Appellee Gateway Health Plan
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Whistleblowing does not insulate an employee from being
fired for misconduct. Alastair Crosbie reported signs of possi-
ble fraud. More than a year later, his coworker accused him of
harassment. His employer investigated the accusation and fired
him within two days. Crosbie says flaws in the investigation
show that it must have been a sham. He insists that the real
reason he was fired was his whistleblowing, not his coworker’s
complaint. Because he has not debunked his employer’s expla-
nation, we will affirm.
I. BACKGROUND
Crosbie was hired by Gateway to help Highmark, a health-
insurance company, investigate fraud. (Because Gateway
wrote his paychecks but a Highmark employee decided to fire
him, we call them both his employers.) While auditing High-
mark’s network of doctors, Crosbie found some troubling
facts. For instance, he says he discovered that some doctors had
prior convictions for selling opioid prescriptions. Others, he
maintains, lacked required Medicaid licenses. In mid-2017, he
reported his concerns to his managers at Gateway. They inves-
tigated but decided not to take any action. Yet Crosbie kept
pressing the issue. Eventually, his managers told him to drop it.
Fast-forward to October 1, 2018, more than a year after his
first report. Crosbie’s coworker lodged a complaint against
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him. She said that Crosbie had called her “Miss Piggy” and
“oinked” at her. App. 455–56. Gateway’s human-resources
team (HR) investigated. Their investigator interviewed
Crosbie, the complainant, and an eyewitness who corroborated
the complainant’s story. She also interviewed other people who
knew of past issues between Crosbie and the complainant. And
she spoke to Jim Burgess, one of the managers who had told
Crosbie to drop the fraud issue. Burgess told the investigator
that he would have questioned the allegations. But earlier that
day, Crosbie had called him and made “coughing” and “snort-
ing” noises, which made him think that Crosbie “did it.” App.
1076, 1313. On October 3, HR fired Crosbie.
Crosbie shot back, suing Gateway and Highmark under the
False Claims Act for retaliation. Crosbie claimed that they had
fired him because of his fraud reports. The employers replied
that the people who had decided to fire Crosbie knew nothing
about his reports and that they had good reason to fire him.
Agreeing, the District Court granted summary judgment.
Crosbie, it concluded, had not shown that the employers’ rea-
son was a mere pretext for retaliation.
Crosbie now appeals. We review the grant of summary
judgment de novo and draw every reasonable inference in
Crosbie’s favor. Sikkelee v. Precision Airmotive Corp., 907
F.3d 701, 708 (3d Cir. 2018). Summary judgment is proper if
“there is no genuine dispute as to any material fact.” Fed. R.
Civ. P. 56(a). Here, there is not.
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II. CROSBIE DOES NOT REFUTE THE EMPLOYERS’
REASON FOR FIRING HIM
We normally analyze retaliation cases under a three-step
burden-shifting framework. First, the employee alleges that he
has been fired (or demoted or the like) for protected conduct.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000). Then, the burden shifts to the employer to give a valid
basis for firing him. Id.; see Hutchins v. Wilentz, Goldman &
Spitzer, 253 F.3d 176, 186 (3d Cir. 2001) (False Claims Act
retaliation). Last, the burden returns to the employee to show
that the alternative reason is just “a pretext for discrimination”
or retaliation. Reeves, 530 U.S. at 143 (internal quotation
marks omitted).
We have never held that this three-step framework governs
False Claims Act claims. But the parties do not dispute it, so
we assume without deciding that it does. We also assume, as
did the District Court, that the parties have passed the first two
steps. Because pretext is where the action is, we focus there.
Crosbie can prove pretext one of two ways. First, he can so
thoroughly disprove his employers’ explanation for firing him
that a jury could find it “unworthy of credence.” Fuentes v.
Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (internal quotation
marks omitted). That means showing not just “that the em-
ployer’s proffered reason was wrong, but that it was so plainly
wrong that it cannot have been the employer’s real reason.”
Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1109 (3d Cir.
1997) (en banc). Or Crosbie can cut to the chase and show di-
rectly that retaliation “was more likely than not a motivating or
determinative” reason for his firing. Fuentes, 32 F.3d at 762.
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Either way, the question is not whether firing Crosbie was
“wise,” but whether his employers retaliated. Id. at 765. And
either way, he needs evidence. Id. at 762; see also Sheridan v.
E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir.
1996) (en banc).
Crosbie thinks he has enough evidence to support either
pretext theory. First, he points to the quality of the harassment
investigation. It was so flawed, he argues, that it must have
been a sham. Second, he stresses Burgess’s participation in that
investigation. He alleges that Burgess, who knew of Crosbie’s
protected activity, used the harassment investigation to get rid
of him. In other words, Burgess used the investigation as a
“cat’s paw.”
Either way, Crosbie lacks proof. His mere suspicions of
shady behavior do not show pretext. We hold that Crosbie can-
not show retaliation just by pointing out an investigation’s
flaws. Nor can he prevail on his cat’s-paw theory without
showing that the people who fired him relied on Burgess’s
statements.
A. An imperfect investigation alone does not show
pretext
First, Crosbie objects that the investigation was slapdash.
The investigator, he says, did not follow standard procedure,
interview every witness, or look at the complainant’s history
of baseless allegations. But sloppiness is not enough. The ques-
tion is not whether Gateway conducted the “best, or even a
sound” inquiry, but whether the investigation was a sham, a
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mere pretext to retaliate. Keller, 130 F.3d at 1109 (internal quo-
tation marks omitted).
This investigation was far from a facade. HR received a
complaint from Crosbie’s coworker. They interviewed her,
Crosbie, and an eyewitness who corroborated the complain-
ant’s account. At Crosbie’s urging, they also interviewed other
witnesses who were aware of past issues between Crosbie and
the complainant. Perhaps they could have done more. But
Crosbie fails to show that the investigation was so thoroughly
flawed that a jury could find it unbelievable. Cf. Fuentes, 32
F.3d at 765.
Crosbie next insists that even if he cannot show that the in-
vestigation was pretextual, its timing supports an inference of
retaliation. It does not. True, we sometimes infer retaliation
when someone is fired conspicuously soon after he blows the
whistle. See, e.g., Farrell v. Planters Lifesavers Co., 206 F.3d
271, 279–81 (3d Cir. 2000). But Crosbie has the opposite prob-
lem. Much of the alleged protected conduct predated his firing
by more than a year. Crosbie sent his last complaint at least a
month before Gateway fired him. Yet he was fired a mere two
days after he apparently oinked at his coworker. So the reason-
able temporal inference is that Gateway fired him for oinking.
In any event, an investigation’s quality or timing can sup-
port an inference of pretext only if those running the investiga-
tion know of the protected activity. Crosbie concedes that HR
did not know about his False Claims Act reports. So that team
could not have been using the investigation to cover their
tracks because they had no reason to think that they had tracks
to cover. They, not upper management, decided to fire him.
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And because HR did not know of his reporting, it could not
have fired him in retaliation. See Daniels v. Sch. Dist. of Phila.,
776 F.3d 181, 196 (3d Cir. 2015) (“The plaintiff … cannot es-
tablish … a causal connection without some evidence that the
[decisionmakers] knew of the plaintiff’s protected conduct at
the time they acted.”).
B. Crosbie’s cat’s-paw theory fares no better
This brings us to Crosbie’s second argument. Even if HR
itself did not mean to retaliate, some nefarious manager might
have used it as an instrument of retaliation—a cat’s paw. See
Staub v. Proctor Hosp., 562 U.S. 411, 419 (2011). Crosbie’s
theory goes like this: HR got a harassment complaint and in-
vestigated it. At some point, they spoke to Burgess, who knew
of Crosbie’s False Claims Act reports. Angry about those re-
ports, Burgess wanted Crosbie out. So he seized on the oppor-
tunity, telling the investigator that he believed the harassment
complaint. Relying on that comment, HR prematurely ended
the investigation and fired Crosbie. Or so he says.
An employer can be liable on the cat’s-paw theory only if
a non-decisionmaker’s act proximately caused the firing.
Sometimes causation can be inferred from circumstantial evi-
dence. Farrell, 206 F.3d at 280–81. But a bald assertion is not
enough. Our cases emphasize three requirements for a cat’s-
paw theory to succeed:
1. Retaliatory animus. The non-decisionmaker must be
motivated by a desire to retaliate. See McKenna v. City
of Philadelphia, 649 F.3d 171, 179 (3d Cir. 2011) (re-
quiring proof that retaliatory animus played a “direct
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and substantial” and “foreseeable” role in an em-
ployee’s firing).
2. Communication. The non-decisionmaker must com-
municate with the decisionmaker. See Staub, 562 U.S.
at 421, 422 (concluding that a “biased report” can count
as that “act”); McKenna, 649 F.3d at 179 (biased disci-
plinary record); Abramson v. William Patterson Coll. of
N.J., 260 F.3d 265, 286 (3d Cir. 2001) (evaluations,
memos, and comments).
3. Reliance. Then, in firing (or otherwise acting against)
the employee, the decisionmaker must rely on the non-
decisionmaker’s communication. See Jones v. Se. Pa.
Transp. Auth., 796 F.3d 323, 331 (3d Cir. 2015).
Crosbie’s cat’s-paw theory fails at both the first and third
prongs. On animus, he offers some disputed evidence that Bur-
gess disliked him. But he has no evidence that Burgess wanted
him fired, much less that he wanted him fired because of his
False Claims Act reporting. After all, Burgess told the investi-
gator that he would have questioned the allegations but for
Crosbie’s behavior on their phone call about the investigation.
Crosbie’s reliance problem is worse. Even if he could show
that Burgess meant to retaliate, he has no evidence that Bur-
gess’s discussion with the investigator influenced the investi-
gation or his firing. That train had left the station long before
Burgess got involved. The investigator started investigating
Crosbie before she ever talked to Burgess. By the time she got
to Burgess, she had questioned several witnesses, including
Crosbie himself and the complainant. There is no reason to
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think that Burgess’s comments caused the investigation to end
early or changed the decisionmaker’s mind.
Speculation is no substitute for evidence. Because Crosbie
has no evidence that Burgess played a causal role in his firing,
summary judgment was proper.
III. CROSBIE CANNOT SHOW THAT LACK OF
DISCOVERY PREJUDICED HIM
Last, Crosbie objects that the District Court refused to com-
pel discovery of the complainant’s personnel file. Perhaps he
does not have enough evidence now, he thinks, because he did
not have the chance to get it. We review the District Court’s
denial for abuse of discretion. Anderson v. Wachovia Mortg.
Corp., 621 F.3d 261, 281 (3d Cir. 2010). Crosbie must show
that the denial caused him “actual and substantial prejudice.” Id.Yet Crosbie’s proof of prejudice is speculative at best. He
gives us little reason to think that extra discovery would have
changed the outcome. True, the complainant’s personnel file
could show that she had a history of making unfounded com-
plaints about her coworkers. Even so, there still would not be
enough evidence to show that HR was “plainly wrong” to be-
lieve her complaint. Keller, 130 F.3d at 1109. HR decided
based on an investigation that involved multiple witnesses, in-
cluding an eyewitness who corroborated the complainant’s
story. Plus, even finding dirt on the complainant would at most
suggest that she was lying, not that managers were using her
complaint as a pretext to retaliate.
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*****
Crosbie says he was fired not because of his coworker’s har-
assment complaint but because he had reported possible fraud.
But he fails to show that the harassment investigation was a
sham. Nor does he show that Burgess manipulated the investi-
gation to get him fired in retaliation. So we will affirm.
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