           Case: 15-10503   Date Filed: 08/04/2015   Page: 1 of 17


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10503
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 4:13-cv-00475-CDL



JAMES FRANK REYNOLDS,

                                                           Plaintiff-Appellant,

                                   versus

WINN-DIXIE RALEIGH INC,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________


                             (August 4, 2015)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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       Plaintiff James Frank Reynolds appeals the district court’s order granting

summary judgment in favor of Winn-Dixie Raleigh Inc. (“Winn-Dixie”) in his

employment discrimination action brought pursuant to Title VII of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the False Claims Act

(“FCA”), 31 U.S.C. § 3730(h). On appeal, Reynolds argues that the district court

erred by finding that Reynolds failed to establish prima facie cases of gender

discrimination under Title VII and retaliation under the FCA. After review, we

affirm. 1

                              I. BACKGROUND FACTS

A.     Reynolds’s Concerns About Possible False Claims

       Plaintiff Reynolds worked as a pharmacist in a Winn-Dixie store in

Columbus, Georgia. Reynolds worked with Georgia Todd, a female pharmacist.

Todd was the pharmacist in charge, meaning she oversaw pharmacy operations and

personnel, but she did not discipline or terminate other pharmacists. Instead, the

pharmacy district manager, Chad Brabston, was the immediate supervisor for both

Plaintiff Reynolds and Todd.




       1
          We review de novo the district court’s grant of summary judgment, viewing all evidence
in the light most favorable to the non-moving party. Owen v. I.C. Sys., Inc., 629 F.3d 1263,
1270 (11th Cir. 2011). Summary judgment is proper “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
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      Plaintiff Reynolds became concerned about the way Todd handled some

pharmacy tasks, such as performing “partial fills” of prescriptions, billing for

medications purchased using Winn-Dixie’s prescription card, returning patients’

prescriptions to stock, and obtaining credit from vendors for medications already

billed. Plaintiff Reynolds told Todd and their pharmacy technician about his

concerns and warned Todd that her actions could result in a false claim. Reynolds,

however, did not report his concerns to anyone else. Plaintiff Reynolds did not file

a complaint or lawsuit with the government about any of his false-claims concerns

because he wanted to correct the problems internally.

      A few weeks before the events giving rise to this lawsuit, Plaintiff Reynolds

reported to his supervisor Brabston that he had discovered some missing Xanax

pills. After conducting recounts and examining documents, Brabston and Todd

concluded some of the Xanax was double-counted, and there was no discrepancy.

B.    Reynolds’s “Backdating” of a Prescription for Medicaid Coverage

      On January 14, 2013, the sister of a pharmacy customer came to fill a

prescription for her brother, referred to as C.J. On December 30, 2012, C.J. had

undergone hip replacement surgery and was prescribed five post-operative

medications, including Lovenox injections and Furosemide tablets. The written

prescription for the five medications was dated January 14, 2013, and was signed




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by a nurse practitioner at C.J.’s post-operative rehabilitation center. C.J. was

discharged from the rehabilitation center on January 13, 2013.

      Todd, rather than Plaintiff Reynolds, was on duty on January 14, 2013.

Todd entered the prescription, dated January 14, 2013, into the pharmacy’s

computer system and learned that C.J.’s Medicaid coverage had expired at the end

of December 2012. Because C.J.’s sister could not pay for the medications,

especially the most expensive medication Lovenox, she left without receiving

them. 2

      The next day, Plaintiff Reynolds was the pharmacist on duty and received a

phone call from C.J.’s sister about the medications. C.J. was a long-term customer

of Plaintiff Reynolds. After investigating, Plaintiff Reynolds understood what

Todd had done (i.e., entered the January 14, 2013 date of the hard copy

prescription). But Reynolds thought that C.J.’s medications would be covered by

Medicaid and could be entered into the computer system with the surgery date of

December 30, 2012, because the doctor’s surgical plan for the hip surgery would

have included an order for post-op medications.

      Plaintiff Reynolds made a notation by circling the surgery date of December

30, 2012 that appeared on the hospital label at the top of the written prescription

and writing the words “hip replacement” next to it, which he thought was


      2
          The retail cost of the Lovenox was apparently $494.34.
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sufficient. To be thorough, however, Reynolds also called the doctor’s office to

request that the hip surgeon send documentation for the Lovenox “that was written

in December from the surgical planning” that reflected the surgeon’s “order for all

incidentals required for the surgery.” 3 Reynolds did not believe his request was

improper because a prescription is made when the doctor orders it (i.e., back on

December 30, 2012), even if it is reduced to writing at a later date (i.e., on January

14, 2013). The surgeon’s office advised Reynolds that C.J. had a follow-up

appointment the next day, and the surgeon would give C.J. a new hard copy of a

prescription for Lovenox with a December 30, 2012 date.

       Expecting the surgeon to provide the documentation, Reynolds re-entered

the prescription into the computer, using the December 30, 2012 date for only the

Lovenox and the Furosemide. This process adjudicated the claim through

Medicaid and generated labels for the medications. Reynolds filled some of the

medications in the prescription, including the Furosemide. The pharmacy,

however, did not have Lovenox in stock, so Reynolds ordered it for delivery the

following day. Plaintiff Reynolds placed the Lovenox label in an “owe” basket for

Todd to complete and dispense to C.J.’s sister the next day. Because Plaintiff

Reynolds was very busy, he did not have time to leave a note for Todd about what

had happened with C.J.’s prescription.

       3
        Reynolds explained that he was most concerned about the Lovenox because it was a
very expensive drug and also important for post-op recovery.
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      The next day, Todd was on duty when C.J.’s sister returned to pick up the

medications. Todd finished filling the prescription, including dispensing the

Lovenox, without examining the paperwork or obtaining the updated prescription,

and gave the medications to C.J.’s sister. Although Todd did not recall dispensing

the medication, she admitted that she may have given the medication thinking it

was part of an “owe,” and thus she would not have looked at the original

prescription. Afterward, however, Todd examined the paperwork and concluded

that Plaintiff Reynolds’s “backdating” of C.J.’s prescription in the computer

system to the surgery date in December 2012 was not acceptable pharmacy

practice and perhaps Medicaid fraud. For this reason, on January 18, Todd

reported Plaintiff Reynolds’s handling of C.J.’s medications to their supervisor

Brabston.

C.    Reynolds’s Suspension and Investigation

      Brabston, who is not a pharmacist, forwarded Todd’s report and supporting

documentation to Winn-Dixie officials John Fegan and B.J. Cobb, who were

pharmacists, and Bill Bandy, Brabston’s direct supervisor. Either Bandy or Cobb

instructed Brabston to suspend Plaintiff Reynolds and obtain a statement from him.

      On January 24, Brabston met with Todd and Plaintiff Reynolds to gather the

facts, obtained Reynolds’s written statement, and informed Reynolds he was

suspended. During the meeting, Brabston asked Plaintiff Reynolds to handwrite a


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statement simply admitting to backdating C.J.’s prescription by adjudicating it with

Medicaid using the December 30, 2012 date. Reynolds refused and instead

prepared a typewritten statement.

      Reynolds’s typewritten statement explained what happened from Reynolds’s

perspective. Reynolds believed C.J.’s prescription “could legally have a service

date of December 2012, incident to the surgery.” Brabston forwarded Reynolds’s

statement to Fegan, Cobb, and Bandy, who were investigating the report. Brabston

also coached Todd about the need to double check a prescription started by another

pharmacist, but other than this warning, Todd was not disciplined for dispensing

C.J.’s medications.

      While on suspension, Plaintiff Reynolds obtained a hard copy of the

“updated” prescription for Lovenox from C.J.’s hip surgeon with a December 30,

2012 date, which Reynolds forwarded to Todd. Todd gave the updated

prescription to Brabston, who forwarded the document to Cobb on January 28. In

addition, Plaintiff Reynolds complained to Brabston that he (Brabston) favored

Todd by paying more attention to her and failing to “develop [Reynolds] as a Winn

Dixie employee” by coming to observe and evaluate Reynolds at work.

      On January 25, 2013, Plaintiff Reynolds sent a “follow-up statement” to

Brabston further defending his actions. Reynolds pointed out that under Georgia

law, a pharmacy may use records of a doctor’s drug orders “transmitted by any


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means of communication for purposes of validating the pharmacy record” and that

no fraud claim was “subject to criminal penalties without proof of intent to commit

fraud.” Reynolds further stated that “the publicly posted best practices from UW

Physicians regarding dates of service [was], ‘. . . if assigning the completion date

as the date for any service will cause problems for reimbursement, the start date

may be used instead.’” Brabston forwarded Plaintiff Reynolds’s follow-up

statement to Fegan, Cobb, and Bandy.

      On January 28, 2013, Plaintiff Reynolds also sent an email directly to Fegan

and Cobb, requesting a peer review by a pharmacist because Brabston was not a

pharmacist. Reynolds attached both of his prior statements, again explained his

view of the situation, and expressed consternation that he was the only one

suspended when Todd was the pharmacist who ultimately dispensed the

medication to C.J.’s sister without collecting the updated December 30, 2012

prescription written by the hip surgeon.

D.    Reynolds’s Termination

      On January 28, 2013, Fegan, Cobb, Bandy, and Victoria Wellstead in Winn-

Dixie’s legal department made the joint decision to terminate Reynolds. The

reason for terminating Reynolds was his “backdating” of C.J.’s prescription in the

pharmacy’s computer system. In an email, Cobb instructed Brabston to explain to

Plaintiff Reynolds that Winn-Dixie “believe[d] that fraud was intended” because


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the only medication filled using the December 30, 2012 surgery date was the

expensive Lovenox in the middle of the sequence of medications and that the other

medications were filled with the January 15, 2013 date. Cobb stated that he had

“discussed this with Medicaid and [Winn-Dixie is] responsible for reimbursing the

cost of this prescription due to this infraction.”

      Brabston was not involved in the termination decision, except to inform

Plaintiff Reynolds of the outcome. Likewise, while Todd made the initial report to

Brabston, Todd was not involved in the decision to terminate Plaintiff Reynolds.

                                  II. DISCUSSION

A.    Gender Discrimination Under Title VII

      When, as here, a Title VII plaintiff’s employment discrimination claim is

based on circumstantial evidence, courts apply the burden-shifting framework set

out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).

Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir. 2013). Under this

framework, the plaintiff must first set out a prima facie case of disparate treatment

by showing that: (1) he is a member of a protected class; (2) he was qualified for

the position he held; (3) he was subject to an adverse employment action; and (4)

his employer treated similarly situated employees outside his class more favorably.

Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 (11th Cir. 2011).




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      If the plaintiff presents evidence of a prima facie case, the burden of

production shifts to the defendant to articulate a legitimate, nondiscriminatory

reason for its actions. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264

(11th Cir. 2010). If the defendant satisfies this burden, the burden shifts back to

the plaintiff to show that the articulated reason is merely a pretext for

discrimination. Id.

      Here, the district court concluded that Reynolds failed to establish the fourth

prong of his prima facie case. Generally, when a plaintiff alleges discriminatory

discipline, the plaintiff must show that the employer disciplined the similarly

situated employee differently, and to be considered similarly situated, the

comparator employee must have been “‘involved in or accused of the same or

similar conduct.’” Smith, 644 F.3d at 1326 n.17 (quoting Holifield v. Reno, 115

F.3d 1555, 1562 (11th Cir. 1997)). This Court’s “same or similar conduct”

standard is high, requiring that “the quantity and quality of the comparator’s

misconduct be nearly identical to prevent courts from second-guessing employers’

reasonable decisions and confusing apples with oranges.” Burke-Fowler v. Orange

Cnty., Fla., 447 F.3d 1319, 1323 & n.2 (11th Cir. 2006) (citing Maniccia v. Brown,

171 F.3d 1364, 1368 (11th Cir. 1999)).

      The district court correctly found that Todd was not a sufficient comparator

to establish the fourth prong of Reynolds’s prima facie case. First, Reynolds and


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Todd did not engage in “nearly identical” misconduct. The evidence, viewed in

the light most favorable to Reynolds, shows that Reynolds believed that Medicaid

would cover all incidentals related to surgery performed during the coverage

period. Based on this belief, Reynolds changed the date of C.J.’s prescription in

the pharmacy’s computer system from January 14, 2013 to December 30, 2012 to

ensure coverage. Once the Medicaid claim was adjudicated, Reynolds then printed

labels for the medications, ordered the out-of-stock medication, and left the task of

dispensing the medications to C.J.’s sister for Todd to complete the next day.

       Todd, on the other hand, simply finished what Reynolds had started and

handed the medications to C.J.’s sister without realizing what Reynolds had done.

Arguably, Todd should have been more aware of the prescription, given that two

days earlier she had told C.J.’s sister that the medications were not covered by

Medicaid. Nonetheless, Todd’s dispensing medication for which coverage has

already been adjudicated (as evidenced by the printed labels) and Reynolds’s

changing the date of the prescription in the computer system to ensure coverage are

not the same conduct. Reynolds’s assertions that Todd was equally culpable are

unavailing. 4



       4
         In the district court, Reynolds alternatively argued that, even if Todd was not a proper
comparator, he could still prevail on his Title VII gender discrimination claim because he
presented “a convincing mosaic of circumstantial evidence” from which a jury could infer
intentional discrimination. See Smith, 644 F.3d at 1328. The district court rejected this
argument. On appeal, Reynolds does not advance this alternative “convincing mosaic” argument
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         Also unavailing is Reynolds’s argument that he, unlike Todd, did not

actually engage in any misconduct at all. The question is not whether Reynolds’s

conduct was in fact wrong, but whether Winn-Dixie in good faith believed that it

was wrong. See Alvarez, 610 F.3d at 1266 (stating that the “question is whether

her employers were dissatisfied with her for . . . non-discriminatory reasons, even

if mistakenly or unfairly so”); Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470

(11th Cir. 1991) (limiting the inquiry to whether the employer believed the plaintiff

was guilty of misconduct and if so, whether that was the reason behind the

discharge and concluding that whether the employee actually engaged in the

misconduct is irrelevant). Accordingly, even if Winn-Dixie wrongly believed that

Reynolds’s handling of the prescription constituted misconduct, the district court

properly found that Reynolds did not satisfy the fourth prong of the prima facie

case.5

         For these reasons, the district court did not err in granting summary

judgment to Winn-Dixie on Reynolds’s Title VII gender discrimination claim.




with respect to his Title VII gender discrimination claim. Thus, we do not address it. See
Holland v. Gee, 677 F.3d 1047, 1066 (11th Cir. 2012) (explaining that issues not briefed before
this Court are deemed abandoned and are not addressed).
         5
         Because we affirm the district court’s ruling that Reynolds failed to establish a prima
facie case of gender discrimination, we need not address Reynolds’s argument that he presented
evidence that Winn-Dixie’s reason for terminating him was pretext.
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B.     Retaliation Under the FCA

       The FCA’s whistleblower provision provides relief to an employee who was

“discharged, demoted, suspended, threatened, harassed, or in any other manner

discriminated against in the terms or conditions of employment because of lawful

acts done by the employee . . . in furtherance of an action under this section or

other efforts to stop 1 or more violations of [the FCA].” 31 U.S.C. § 3730(h)(1)

(emphasis added). 6 In other words, protection under this provision requires a

showing that the plaintiff was engaged in protected conduct and that the employer

retaliated against him “because of” that protected conduct. 7

       The district court concluded that Reynolds’s evidence created a genuine

factual dispute as to whether he engaged in protected activity when he raised

concerns with Todd about possible false claims, 8 but Reynolds did not present

evidence showing a causal connection between his protected activity and his

termination. On appeal, the parties continue to dispute whether Reynolds’s

conversations with Todd constituted protected activity. We need not resolve this


       6
       On appeal, Reynolds does not challenge the district court’s granting of summary
judgment on his Title VII retaliation claim, and thus has abandoned it. See Holland, 677 F.3d at
1066. Reynolds does, however, still argue his FCA retaliation claim
       7
         We decline to address Reynolds’s argument, raised for the first time in this Court and
only in his reply brief, that the relevant statute is the Georgia False Claims Act rather than the
FCA. See Access Now, Inc. v. SW. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
       8
        The district court concluded, however, that Reynolds’s report to Brabston about the
missing Xanax was not protected activity under the FCA. Reynolds does not challenge this
ruling on appeal, and we do not address it further.
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issue, however, because even assuming arguendo that Reynolds engaged in

protected conduct, we agree with the district court that Reynolds did not present

evidence from which a jury reasonably could find that Reynolds’s suspension and

termination were “because of” that protected activity.

      To establish the necessary causal connection under § 3730(h)(1), the

plaintiff must show that the employer was at least aware of the protected activity.

See U.S. ex rel. Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 1304 (11th Cir. 2010)

(concluding that the plaintiff’s allegations in her complaint that she complained to

her employer about unlawful actions that would incur significant civil and criminal

liability were sufficient, if proven, “to support a reasonable conclusion that the

defendants were aware of the possibility of litigation under the False Claims Act”);

see also U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir.

1998) (stating that the “because of” language in § 3730(h)(1) requires the

employee to prove that the employer had knowledge of the protected activity and

was motivated to retaliate, at least in part, by the protected activity); Zahodnick v.

Int’l Bus. Machs. Corp., 135 F.3d 911, 914 (4th Cir. 1997) (stating that the plaintiff

must present evidence that the employer was aware of the protected activity to

show the requisite causal connection).

      Here, Reynolds failed to establish causation because he did not present any

evidence that the decision makers—Cobb, Bandy, and Fegan—knew that Reynolds


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had spoken to Todd about potential false claims. In fact, Reynolds admitted he

only talked with Todd and their pharmacy technician about his concerns.

      Reynolds cannot avoid this result by relying upon a “cat’s paw” theory.

This Court has not yet applied the cat’s paw theory in an FCA retaliation case.

Furthermore, this Court has indicated that while the theory may be appropriate in

cases in which the plaintiff is required to prove only that the protected

characteristic was a motivating factor, such as in Title VII disparate treatment

claims, the theory is inappropriate when the statute requires “but-for” causation.

See Sims v. MVM, Inc., 704 F.3d 1327, 1335-36 (11th Cir. 2013) (concluding that

“cat’s paw” liability does not apply to Age Discrimination in Employment Act

retaliation claims). Nonetheless, even if we assume arguendo that the cat’s paw

theory applies to FCA retaliation claims, Reynolds did not present evidence to

support the theory in his case.

      In other employment contexts, discriminatory animus may be imputed to a

neutral decision maker under a “cat’s paw” theory if: (1) a supervisor performed an

act motivated by animus that was intended to cause an adverse employment action;

and (2) the act was a proximate cause of the adverse employment action. See

Staub v. Proctor Hosp., 562 U.S. 411, 422, 131 S. Ct. 1186, 1194 (2011). A

plaintiff may establish causation under this theory if the decision maker either

followed another supervisor’s biased recommendation without independently


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investigating the complaint or conducted an independent investigation but relied on

facts provided by the biased supervisor. See id. at 420-21, 131 S. Ct. at 1193;

Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999).

       Reynolds contends that Todd may have had a retaliatory motive. In the

district court, however, Reynolds offered nothing but his own conjecture that Todd

was retaliating against him. Moreover, Reynolds did not present any evidence that

Todd had any input in the decision to suspend and then terminate him. To the

contrary, the undisputed evidence is that Todd played no role in the employment

decisions except to initially report Reynolds’s “backdating” of the prescription to

Brabston. Brabston then gathered the facts and documents, including multiple

statements from Reynolds. Brabston then forwarded the evidence to Cobb, Bandy,

and Fegan, who reviewed it and made their own decision. Furthermore, in his

statements, Reynolds admitted changing the January 14, 2013 date of C.J.’s

prescription in the computer system to December 30, 2012. Even if the decision

makers wrongly believed Reynolds’s conduct was either illegal or unprofessional,

Reynolds’s own admission to the conduct supports their independent determination

that Reynolds should be discharged.9



       9
        Reynolds also contends that the district court abused its discretion by failing to compel
discovery related to his FCA claim. We conclude, however, that Reynolds waived this issue for
appellate purposes by responding to the summary judgment motion on the merits rather than
accepting the district court’s invitation to explain why he needed additional discovery as to his
FCA claim. In any event, there was no abuse of discretion because none of the evidence
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      For these reasons, the district court did not err in granting summary

judgment to Winn-Dixie on Reynolds’s Title VII gender discrimination and FCA

retaliation claims.

      AFFIRMED.




Reynolds sought would have shown that the decision makers knew of Reynolds’s protected FCA
activities or that Todd manipulated the decision makers into terminating Reynolds.
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