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Nesbitt v. Candler County, Georgia

United States Court of Appeals, Eleventh Circuit

January 3, 2020

JAMIE NESBITT, Plaintiff-Appellant,
v.
CANDLER COUNTY, GEORGIA, d.b.a. Candler County Ambulance Service, Defendant-Appellee.

          Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 6:14-cv-00094-LGW-GRS

          Before ED CARNES, Chief Judge, BRANCH, and TJOFLAT, Circuit Judges.

          ED CARNES, CHIEF JUDGE

         This case turns on what Congress meant when it said "because of" in the antiretaliation provision of the False Claims Act, 31 U.S.C. § 3730(h)(1). When we interpret the text of a statute, "we must presume that Congress said what it meant and meant what it said." United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc); accord, e.g., Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992); In re Thompson, 939 F.3d 1279, 1285 (11th Cir. 2019). Because of our obligation to presume that "because of" means "because of" and not something else, we affirm the judgment of the district court.

         I.

         The plaintiff, Jamie Nesbitt, started working as an emergency medical technician for Candler County's ambulance service in 2006. Several years later one of his coworkers, Donald Greer, was promoted to be the new deputy director of the ambulance service. That was when Nesbitt's problems began.

         Nesbitt grew concerned about how Greer was instructing him and other staff members to fill out certain paperwork. Part of his job as an EMT was to complete a "trip report" after each ambulance ride to document the condition of the patient and the medical necessity of the ambulance service. Medicare relies on those reports when deciding whether to pay for the service. The narrative section of a trip report is especially important for billing purposes.

          According to Nesbitt, when Greer became the deputy director he started pressuring the EMTs to write in their report narratives that patients were unable to walk, even if they could. That way Medicare would pay for more trips. Nesbitt believed that Greer was asking him to commit fraud, so he began complaining to Greer himself and other County officials.

         After Nesbitt started complaining, Greer changed his schedule. Ordinarily the County EMTs worked two 24-hour shifts per week and were on call for two additional 24-hour days. The on-call days gave the EMTs a chance to pick up more overtime hours. Greer started putting Nesbitt on call for only the first half of a day instead of for the full 24 hours, which meant less overtime pay.

         With Greer's approval, Nesbitt began working another job at a private ambulance company called Meddixx. The County had a policy prohibiting EMTs from working side jobs without the approval of the ambulance service director. Greer was not the director, David Moore was. Nesbitt assumed that Moore somehow knew about his other job, but there's no evidence that Moore did know about it, much less that he approved it.

         The County fired Nesbitt in 2014. The five-member Board of Commissioners had the sole authority to hire and fire County employees. Usually when an employee was fired, the County Administrator or a department head would make the termination recommendation to an individual Board member, who would present the recommendation to the full Board. The Board would then discuss the recommendation and vote on it.

         Greer and Moore started the process to terminate Nesbitt. They met with the County Administrator, William Lindsey, and told him that they wanted to fire Nesbitt because he would not follow orders and had violated the County's policy on side jobs. The Board voted to terminate Nesbitt's employment, and after that, Moore and Greer called him into Greer's office and told him that he no longer worked for the County. They gave him a letter stating that he had been fired for two reasons: his unauthorized job with Meddixx and his refusal to fill out trip reports in "the proper way." Doc. 57-6.

         II.

         In August 2014 Nesbitt filed suit under the False Claims Act, 31 U.S.C. §§ 3729-3731, and the Georgia False Medicaid Claims Act, Ga. Code Ann. §§ 49-4-168-168.6, alleging that the County had engaged in a fraudulent scheme related to billing for ambulance services and had fired him in retaliation for his whistleblowing. In June 2016 the United States intervened and reached a settlement with the County and Nesbitt. As part of the settlement, Nesbitt and the government voluntarily dismissed the fraud claims, but Nesbitt's False Claims Act retaliation claim moved forward. In granting summary judgment for the County on that claim, the district court concluded that ...


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