limited record the district court having granted the defendants motion to dismiss there are basically two claims with with three issues but but let me talk first about ms smith the record is limited i think maybe it might be helpful to start with the nature of her duties she was a direct the defendant is a home health care agency so it provides home health care services of a dealt with running that program but a it was we talk about how what started it would be a referral from a nursing home a doctor's office a hospital health care facility for a patient was called john doe and mr doe may need a number of different home health care services such as skilled nursing physical therapy and speech therapy so they get a referral we have a potential patient here mr doe he needs three type of services according to what the information the doctor a sense too initial service assessment is to be made are we in a position given our staff and the rest of our patient load to even think about being able to provide these to mr doe in some cases the answer would be no but they could be so then the second step is clinical sassaman someone goes in appropriately skilled clinician goes to mr doe's residence or the site where the services will be provided and determines really makes more particular lies  this does this patient really need these services is this and was that men and which they can be effectively provided was that ms smith job to do that evaluation other clinical personnel typically would do that in report in there and they would in turn report back to her mr joe upon meeting him needs a a degree of skilled nursing care that's let's say extraordinary so i was a little bit confused what exactly ms smith did in her job function that might involve her  miss math it'll work we can let's say he needs a degree of skilled nursing care that's extraordinary because it can be level so that of course and she at that point was empowered determine you mr doe really doesn't need physical therapy to the extent ordered can confer with the health care provider and some to and fro be going back on this but miss smith was  empowered to make a decision to accept the patient she was not however empowered to make a decision we can't except mr doe as a patient she could note that but that ultimate decision went to her higher ups and she knew that they were doing she was told that they were making six million dollars out of taking these patients and she was patients were being accepted in a way in which the clinical assessment had been suspended that there your point here is that having that knowledge about the her employer would make her complicit in the cover up of illegality and overcharging the government has that right yes you're ok that's the point right yes a decision to be made one nevertheless even know where we were going you know the doctor's orders have been manipulated rather than the three services for instance ever initially ordered which were not in a position to provide the orders were manipulated down to just two types of cigarettes she did she have to sign anything or say anything or do anything that was not truthful herself at  possible at that point a patient has accepted it's part of her patient load she's required to administer the staff to assign to people that she's made a legitimate determination are appropriate and two persons that she believes may be in danger because they're not getting the services they need because the orders have been changed in a way that certainly looks suspicious at least ultimately is part of this the services are provide represented to be adequate necessary and proper services have been provided and most importantly here we're entitled to be paid and that's where this intersects with her she sees that the staff personnel are assigned to the patients that have been wrongfully enrolled as a patient and she the payment process touches on her job responsibilities as well she brings this up she would be pretty much a day to day basis with her routine duties in terms of assigning staff determining whether or not they know their patient should be accepted because keep in mind we've got staff on hand that are being a patients that should have been accepted to begin with she's part though in your hypothetical where where a doctor ordered three services and and the defendant is providing two different additional services that weren't ordered she was free she would be assigning staff to meet her employer's needs as opposed to what the doctor had certified was needed that would be correct because i was part of her duties as director of nursing to manage schedule hire the clinical staff your speech therapist physical therapist occupational therapist to provide this type of ok so your claim on the false claims act is a constructive discharge claim that she was she quit her job because she did not want to be complicit in the fraud of the defendant that's correct and we we we well the district court ruled in these circumstances you this isn't a constructive discharge and the basis for the court a we did provide some examples of the type of manipulation or alteration of the patient intake process that was performed him in is what led ms smith to argument regarding the construct of discharge is that the district court misapplied the standard this court has said you need to look at the facts of each case focusing on the employer intent and the reason the foreseeable impact of the employee's conduct or excuse me the employer's conduct and better intent can be shown that demonstrating that quitting was a foreseeable consequence and i think the district court kind of agreed with us on this because the district court observed this methods put in the situation and get along or go along or quit an employee that reports but frankly appears to be health care fraud and is basically told thank you very much but we're making a lot of money off this and when i'm not representing to the court she was told we were threatened or anything like that but basically thank you is there anything else have a good day at rest of the day you have a case though that says that that's enough for a constructive discharge because they the typical constructive discharge case is where the employer wants to get rid of the employee and makes the workplace so intolerable that the employee says i've got to leave no and i'm really not surprised your honor that there is as there is a paucity of authority on the on the under a younger supervisor i'm asking the court to conclude that a free assignment to work under your younger supervisors a punitive enough action to cause a constructive discharge and compelled to work in situation where your day to day work duties cause you to intersect and frankly facilitate to some degree health care fraud and you choose i'm not doing the time to facilitate if she's got knowledge that i claim for someone in her shoes to be making a constructive discharge claim or are there other claims under the false claims act where a whistleblower for instance reports him act yeah what would be something that would lie under these circumstances as well right because clearly a worker should be protected against having to work under situations where the worker complicit in unlawful activity of the employer if you are trying to design a system of i've rights and responsibilities that would seem to be wrong or false claims that gives a it's very broad in my reading to the protection for the employee that if they make an effort to stop the practice that they see is improper them and they are  supervisor but in this instance they are as a result constructively discharged they have a claim under the anti retaliation provisions which is what we which is what count one is  time permitting all turn to the dismissal of the plaintiff's wrongful discharge claimant or kentucky law i want to start with a fairly basic observation because i don't think in that entire twelve minutes the word retaliation was ever even used  judgment i think you are getting at this with your comment there at the end is that this claim was brought under a retaliation theory this is not a key to him case this is a retaliation case and the grab a minute any retaliation claim is that the employee in the cas gauges in protected activity by making a complaint and then the employer retaliates against that individual for making that complaint and trying to punish the employee to get that for raising those concerns and the fundamental flaw in this case as judge caldwell recognized is that the plaintiff does not a ledge even one allegation in that complaint that suggests that the company ever took any action whatsoever against the plaintiff after she complained about these patient into us to continue to work at a company where she knows that the company and the work that she is doing but it is defrauding the government to point your honor  first is not the work that she was doing she is very clear in pleading is that she what she's got is knowledge of what is happening at this company and we're supposed to say that that's no you're not supposed to say that's fine but there is a if i could i'll answer your question the op should have many options available to her she could have said i'm not going to engage i'm not going to be involved in this behavior in state ok she could've i think at some point in the brief it's a suggested that they bypassed her in this process she was not intimately into reported to the government that's for sure she she could have reported it to the government and state employed and so in that way she's covered i'm not complicit in this i've taken it i've complained to the federal government or she could have quit and then vision but that's not what happened here she is glad that she could have stayed at the company and refused to do the work that made her complicit is that what you're saying and then if she were fired that's  yes it was but i still take issue with the threshold notion that she was involved in this wrongdoing the the plane to the paragraph twenty one of the complaint is very clear that others were responsible for making the decisions about whether to accept the patient or not she was not her only responsibility was to after the patient was accepted to assign the therapists to go out and visit the patients and gauged in the process by which this was taking place and and she knew about it was there's no question about that i mean she you're you're advocating that employees work and continue to work for a company that is defrauding the government of the taxpayer and do nothing i'm i'm not advocating for anyone to do nothing i'm certainly not advocating that anybody participate in government in medicare fraud in the government all i'm arguing is that we're here to talk about whether the plaintiff can state a claim for retaliation under retaliation therion a retaliation statute maybe i could address that your honor the constructive discharge piece the constructive discharge piece doesn't get her out of showing that the company did something to her all it does the constructive discharge is it's a doctrine that's intended to were the employer and again it's a retaliatory constructive discharge claim that we're talking about here is that even though the employer didn't officially terminate or cut her pay or take some other overt retaliatory action the employer went about creating these did a series of things leading up to terminations that made the whole circumstances in the work environment so utterly intolerable that a reasonable person would have felt compelled to resign so the person for constructive discharge three still needs to point did feel compelled well that's actually well we can't really get into that that the record is what the record is ok about what that she did not leave because of this all it's all say on this and there's a resignation letter that makes clear that she did not leave because of this but we can argue about that because it's not in the complaint and i certainly can't show you that five page letter but this is a motion to dismiss that's correct so we only have the complaint right that's what we look at ok right so again the constructive discharge does not eliminate the problem of the prime aphasia case that says that she has to show that an adverse action was taken against her all it is is a substitute for terminations claim by saying the employer did x y and z for example if she had raise these concerns about the patient intake procedures and they had changed her job title cut her pay moved her desk and put her in the basement in retaliation because of she because she made a complaint that maybe mr abel would have an argument that that the taliban in those circumstances those retaliatory actions that were taken by the employer were sufficient to create you have a constructive do secured without having a single act of retaliation no you cannot you cannot there is not a singer have to continue to work for the company they're stealing from the government so that right your honor for retaliation theory for retaliatory constructive distortion there has to be actions taken by the employer against the individual every single case that's been cited by either party in this in this in any of the and the underlying summary judgment briefs involves actions specifically taken to isolate ostracize harassing arkansas them every day she works there where because she's got knowledge of what they're doing in the in the way of stealing money from the government and she's not reporting it to the government or saying anything about it and that's mispresent of a felony why didn't she complain to the government she left she quit without the employer having done anything to her that would be retaliation for having raised a complaint because she was being associated with a company that was going from a book but boy let me try and address your concern on that so so where where is the limit does does everybody in the company get to does everyone at that branch of the agency get to quit and claim constructive discharge or run into federal court and sue unearned vidual constructive distraction case by case with the knowledge you would have to look  person it was not her responsibility to approve these patients others were responsible for approving the patients but so that it's her job she was the director of nursing home but we have to go with what's in the  know i was trying to get at with your opponent and what i'm now trying to get at is was the nature of her job sites that what she would be doing in the regular course of her duties would make her complicit in what she alleges is the wrongdoing that the company was involved with no and again paragraph twenty one is explicit she says she has never participated she makes clear in numerous paragraphs of the complaint that she never participated in any of the wrongful conduct she never alleges and this is very important for the state law claim never once alleges that she was asked or told that she needed to participate in this conduct she just learned of it because when a patient got in rolled she would be copied on e mails that so and so was enrolled and then because she had to then find out a therapist and get a therapist assigned to provide the services that were approved but then wouldn't she be involved with providing services to someone who wasn't certified to need those services the that's that's an important distinction about what the allegation here is there's no allegation that there was a provision of services that were not required by the by the by the doctor's orders the only allegation in this complaint is that perhaps there was a referral for p and o t services and that if the company didn't have a p t person available and only had an o t person available that the company would ask the doctor to write the orders for only the o t that's the allegation ok and so there is no that gets to the whole issue of whether there's anything resembling fraud on the government even if you accept everything this complaint as true is that is that she was assigning a therapist to provide services that were pursuant to a doctor's orders there was no addition of services there was only the deletion of services under those circumstances where the patients were with us that the company did not have adequate staffing available to provide the additional services is that the the allegation in paragraph twenty five that we  think there's a number of allegations all the removal of services there is not one allegation that suggesting that additional services that this was a case where the company was trying to pump up and get additional money out of the government for services that were not required by the patient or by the doctor so i guess i would just want to finish off the thought here that that essential if you accept that this case can move forward without even a single allegation that the employer actually did anything to retaliate against her for you know creating a for making that complaint then you've effectively eliminated the third prong of the privatization case in every single case a plaintiff can bring in f c s retaliation claim simply by alleging that i made a complaint the employer was aware of the complaint and then nothing else has to happen to the point then there's a retaliation claim in every single circumstance and that's not supported by even one case that the plaintiff cited you asked him if there was any cases acknowledges that there is not and on top of that we pointed the court to the seven circuits decision and hampshire versus moments meadows nursing and in that case the facts are strikingly similar there was a nurse there at a nursing home she was very upset about what she perceived to be substandard care practices that were going on at the nursing home facility very serious violations of dirty catheters and other things and that she quit after she complained her complaints were ignored and a patient died rejected any claim for constructive discharge under the f c s retaliation provision and there were two bases for the holding so at first there was no evidence that the employer did anything to make her employment unbearable which is what we have in our case  again is said the quote is there is no and there's no evidence that the quote the employer quote did anything to make her employment unbearable this is by ignoring despite ignoring all know you want to participate in a cover up of resign again what the court is doing in the absolute case is appropriately focusing on that this is a retaliation claim this is not a key tam case she can quit and sue under a key tam provision and try and recover money for all of this but she can't sue under a retaliation  case where there is not one single shred of allegation much less her but hints that she was retaliated against that the company did anything because she complained there is not a single case out there under f c c retaliation that allows a case to roll forward without it without even an allegation that there was an adverse employment action taken against her because she complained so there aren't any more questions on the federal claim i'll try to address briefly with my two minutes and forty seconds the state law claim the state law claim  dismissed because the court found that there had been no affirmative request that she violates the law is that is that clear that that's what the law of the state is well it's interesting that you asked that i believe it is if you read the supreme court's decision in kentucky versus hill and the slide on that is three twenty seven southwest third four twelve and this is a kentucky supreme court case from two thousand and ten it was specifically evaluating and  describing the contours of this wrongful discharge claim and it said there would be no basis for common law a wrongful discharge claim if there was no request for the perjured testimony that's coming directly from the kentucky supreme court and then there is so the welsh decision is a kentucky court of appeals case which expressively says because to avoid any uncertainty that to be clear you have to allege that there was an affirmative request to violate the law i thought well this is first of all not published and secondly it's been sort of questioned i don't believe it's been questioned i think that the panel in the alexander case noted that on appeal to the kentucky supreme court the kentucky supreme court indicated that it shouldn't be published that's that's it and so if i might with my time remaining let me just address the alexander you know decision because i think it's important first of all any suggestion about this inevitable complicity that the panel did not hold that that's the standard it's simply tried to give the benefit of the doubt to the plaintiff in that case by looking at it on a broader level and said even if we excuse you from showing an affirmative request and we think about this inevitable complicity it did not hold that that's the standard and i would argue that they didn't even follow their own admonitions which is to first look to the kentucky supreme court the alexander in dicta their dicta in that there's a broader standard ignored the passage i just read to you from the hill case didn't even address it it also said up front that we're given a choice between an interpretation that restricts or expands liability we should choose the narrower interpretation yet it didn't do that but i would argue that the alexander case even if you give it the broad interpretation and say is there some evidence of inevitable complicity that alexander decision does not support a finding that she stated a claim on the facts of this case the facts and alexander were much more agree just than the facts of this case there was there was expressed of wrongdoing by the employees the individual was responsible for directly signing off on the certification of the engines as not being defective and refused to it and then was terminated ok and on that set of facts where it was inevitable that this person was going to be signing off on it the panel in alexander specifically said the tort of wrongful discharge is not broad enough to cover the facts that were been alleged in this case thank you very much honour's i think mr pattens remark regarding after the seventh circuit case are helpful because it draws that contrast the plaintiff there have sure was a nurse who from what we can tell from that opinion very conscientiously worked and provided for what we can tell adequate care to the patients that she was taking care of she was disappointed that on the whole and in the main her company was for most of the patients not providing that level of care not providing an appropriate level of care and that discouraged your in she quit because she didn't want wish to be as associated with that the difference between her situation and miss smith situation is that the wrong doing in miss miss work environment intersected with her day to day job responsibilities  under the state law alexander i did not i gathered they did not it did not appear to be a regular practice of the wrongdoing let's just call it that if i may judge bush did not  r it was and did not appear to be a regular practice parent was isolated here it was an established practice that did regularly intersect with ms smith job duties but the court said even if the illegal activity w systematic any future act of signing off on a defective engine blocks would not have made alexander automatically complicit in this illegal activity he was responsible for signing off on he was aware that a colleague was signing off administrating and ultimately signing off on reimbursement requests to medicare and medicaid and private insurance as well it's a very general summary of her job duties but not meeting their needs because we have wrongfully reduced their needs to fit our needs their intersecting with them there and if i also make a call accordingly hask your question you know red lights on here and i've been waiting to ask this question contract to discharge and that you don't have any case law of any kind that would undermine the necessity for retaliation what your response to that  page thirteen and fourteen of the main brief exist this court the existence of constructive discharge plans on the facts of each case and requires an inquiry into the tent of the employer and recently foreseeable impact of the employer's conduct upon the employee that's from the court's decision smith versus henderson a plan of can show the a pelleas and ten by demonstrating that quitting was a foreseeable consequence of the employer's actions and that's from this court's decision and more visas versus kuka welding and lawyer who reports of wrongdoing and is essentially as here told thank you very much but we're really making a lot of money off that  was talk about you know how we're going to keep this going is put in the situation by the employers actions for the forseeable consequence and finally the only reasonable consequence is for the employee to quit the employment i asked the court to reverse and i don't think this is clear in the briefs count one and count three reversed and send this back for further proceedings that's caldwell was correct with regard to can't do and i'm going to ask for any relief from the thank you