Dismissal of Retaliation Claim Affirmed; Employer Unaware of Protected Activity

From Plotzker v. Kips Bay Anesthesia, P.C., 745 Fed.Appx. 436, 437–38 (C.A.2 (N.Y.), 2018) (Summary Order):

After reviewing the record de novo, we agree with the District Court that there is no genuine dispute of material fact with respect to at least one element of Plotzker’s retaliation claim, namely, that his employer was aware of his protected conduct. See United States ex rel. Chorches for Bankr. Estate of Fabula v. Am. Med. Response, Inc., 865 F.3d 71, 95 (2d Cir. 2017) (describing framework commonly applied in assessing False Claims Act retaliation claims). With respect to this element, Plotzker’s key evidence is an alleged statement made by his supervisor, Dr. Friedlander, during Plotzker’s termination meeting. According to Plotzker, Dr. Friedlander informed him that “there was a meeting of the [Kips Bay] board and the board was very unhappy with what [Plotzker] had said” to several third-party consultants hired to inspect Kips Bay in anticipation of an accreditation survey. J.A. 156. Plotzker claims that Dr. Friedlander’s comment refers to the alleged protected conduct, i.e., Plotzker’s statement to the consultants that he would “report” Kips Bay for certain conduct he believed amounted to Medicare fraud. Id. at 151.

Viewed in light of the record as a whole, however, Dr. Friedlander’s statement supports at most a fleeting “metaphysical doubt” concerning his knowledge of the alleged protected conduct. See Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. All of the other relevant witnesses to *438 the conversation on which Plotzker’s claim is premised categorically deny that he said he would report Kips Bay for Medicare fraud. It is no surprise, therefore, that the record contains no evidence suggesting that the witnesses to the alleged statement conveyed it to Dr. Friedlander. For their part, Dr. Friedlander and the members of Kips Bay’s board denied having any knowledge of Plotzker’s threat. And Plotzker admits that he did not inform Dr. Friedlander of his intent to report Kips Bay during the termination meeting or at any other time.

Thus, even crediting Plotzker’s deposition testimony, the evidence simply does not establish a genuine dispute of fact with respect to whether Dr. Friedlander knew about Plotzker’s alleged protected conduct prior to terminating him.