UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1498

UNITED STATES OF AMERICA ex rel. DEBRA PARKS,

Plaintiff - Appellant,

and

CALIFORNIA; DELAWARE; FLORIDA; GEORGIA; HAWAII; ILLINOIS; 

INDIANA; LOUISIANA; MASSACHUSETTS; MICHIGAN; MONTANA; 

NEVADA; NEW HAMPSHIRE; NEW JERSEY; NEW MEXICO; NEW YORK; 

OKLAHOMA; RHODE ISLAND; TENNESSEE; TEXAS; VIRGINIA; 

WISCONSIN; DISTRICT OF COLUMBIA,

Plaintiffs,

v.

ALPHARMA, INCORPORATED; ALPHARMA BRANDED PRODUCTS DIVISION,

INCORPORATED; FAULDING LABORATORIES; PUREPAC PHARMACEUTICAL 

COMPANY,

Defendants – Appellees,

and

SEALED DEFENDANT #5; SEALED DEFENDANT #6; SEALED DEFENDANT 

#7; SEALED DEFENDANT #8; SEALED DEFENDANT #9; SEALED

DEFENDANT #10; SEALED DEFENDANT #11; SEALED DEFENDANT #12;

SEALED DEFENDANT #13; SEALED DEFENDANT #14; SEALED DEFENDANT 

#15,

Defendants.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:06-cv-02411-RDB)
2

Argued: May 17, 2012 Decided: August 14, 2012

Before KING, DUNCAN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Joseph Saunders Johnston, MORGAN CARLO DOWNS & EVERTON, 

PA, Hunt Valley, Maryland, for Appellant. Lindsay Buchanan 

Burke, COVINGTON & BURLING, LLP, Washington, D.C., for 

Appellees. ON BRIEF: Robert C. Morgan, Angus R. Everton, MORGAN 

CARLO DOWNS & EVERTON, PA, Hunt Valley, Maryland, for Appellant. 

Thomas S. Williamson, Jr., COVINGTON & BURLING, LLP, Washington, 

D.C., for Appellees. 

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Debra Parks appeals the district court’s grant of 

summary judgment to Alpharma, Inc. (“Alpharma”) on her False 

Claims Act (“FCA”) retaliation claim. See 31 U.S.C. § 3730(h). 

Parks argues that the district court erred in ruling that she 

failed to make a prima facie case. The district court was 

correct, however, in deciding that Parks did not make the 

requisite showing on the second element of the prima facie case: 

that Alpharma had notice of her alleged protected activities. 

For this reason, we affirm.

I.

A.

Parks worked as a sales representative for Alpharma, a 

pharmaceutical company, from spring 2002 until her termination 

in July 2006. J.A. 23.1

 For a time, Parks was one of Alpharma’s 

most successful employees. She received many awards, including 

“Sales Representative of the Year,” and she was ranked as one of 

the top sales representatives nationally. Id. at 1943. In 

February 2006, Parks earned Alpharma’s “High Five” award for 

 1 Citations to the “J.A.” refer to the Joint Appendix filed 

by the parties in this appeal. Parks’s Second Amended Complaint 

states that she began working for Alpharma in 2001, see J.A. 23, 

but the district court found that she began in spring 2002, see

id. at 178, and Parks does not challenge this finding on appeal.
4

sales representatives exemplifying five “core values”: “bias for 

action,” “creativity,” “courage,” “integrity,” and “teamwork.” 

Id. at 1944. 

Parks was tasked primarily with promoting the drug 

Kadian to physicians in Maryland and Delaware. J.A. 23-24, 352. 

Alpharma advertised Kadian, a sustained-release morphine 

product, as a longer-lasting alternative to other pain 

medications such as Percocet, Vicodin, and OxyContin. Id. at 

29. In this regard, Parks’s job had many facets, including 

encouraging physicians to prescribe Kadian and “obtaining 

formulary status for Kadian[.]” Id. at 358.2 According to 

Parks, in an attempt to persuade Medicaid, Medicare, and statefunded health care programs to add Kadian to their list of 

formularies and to increase sales, Alpharma conducted clinical 

studies to show the effectiveness, safety, and costeffectiveness of Kadian. Id. at 1944. Alpharma would then 

produce the results in the form of presentations and abstracts. 

Alpharma conducted many of these studies during 

Parks’s tenure. She claims that she became concerned about the 

 2 According to Parks, a drug achieves “formulary status” 

when it is approved for reimbursement by a government-sponsored 

or commercial health care program. Formularies, or lists of 

such approved drugs, are normally approved by committees within 

a certain program or managed care plan. See J.A. 358-59.
5

methods by which the studies were conducted and the manner in 

which the results were presented. 

1. SWITCH STUDY 

In 2004, Alpharma considered engaging Dr. Michael S. 

Kaplan, who operated multiple pain clinics in Maryland, to 

conduct a study to assess the efficacy and pharmacoeconomic 

(cost-saving) impact of switching patients from other pain 

medications to Kadian (hereinafter, the “Switch Study”). J.A. 

1945. Parks denies in an affidavit having any role in hiring 

Dr. Kaplan to perform the study, id. at 1945-46, and divulges 

that she found Dr. Kaplan to be “inappropriate on a personal 

level,” id. at 387. 

Nevertheless, Parks worked regularly with Dr. Kaplan, 

and he prescribed the most Kadian in Parks’s sales territory. 

J.A. 377-78. Indeed, in an e-mail to Dr. Joe Stauffer, 

Alpharma’s Vice President of Global Medical Affairs, Parks wrote 

that she would be “dead” if Dr. Kaplan “g[o]t angry and 

stop[ped] writing [prescriptions]" for Kadian. Id. at 956. And 

in a May 12, 2004 email, Parks sent Dr. Kaplan’s curriculum 

vitae to Dr. Mike Royal, Medical Director and Vice-President of 

Alpharma Strategic Brand Development, listing several reasons 

why Dr. Kaplan would be the best person to perform the Switch 

Study. She concluded, “[h]e is very excited about doing the 

‘switch’ study and wants to start ASAP.” Id. at 946. She also 
6

told Dr. Royal that Dr. Kaplan is "truly a doctor we want to 

keep in our camp," id. at 945-46, and admitted that “it would be 

impossible for [her], as a sales rep, to replace that sales 

volume,” id. at 393. She agreed that she “wanted to get Kaplan 

going on the study so it wouldn’t adversely affect [her] ability 

to achieve or exceed [her] quota[.]” Id. at 798. Alpharma 

ultimately hired Dr. Kaplan to conduct the Switch Study. 

2. KAPLAN METHOD

Central to the Switch Study was Dr. Kaplan’s personal 

method of converting patients from other pain medications to 

Kadian (hereinafter, the “Kaplan Method”). J.A. 1950-51. The 

Kaplan Method involved adding Kadian to a patient’s shorteracting pain medication, and once Kadian reached a certain level, 

weaning the patient off of the other drug. Id. at 243. After 

hiring him to perform the Switch Study, Alpharma asked Dr. 

Kaplan to train its sales representatives so that they could 

present the Kaplan Method to other physicians, in an effort to 

increase the number of Kadian prescriptions. Id. at 201, 1950. 

He agreed, and the training presentation took place in August 

2005. Id. at 1950. 

Even though Parks told Dr. Royal that “part of why 

[Dr. Kaplan] is so successful in convincing doctors to really 

give Kadian a fair trial is his discussion of conversion,” J.A. 
7

496, she nonetheless complained about the Switch Study and the 

2005 training for three reasons. 

First, Parks did not believe that the other sales 

representatives fully understood the Kaplan Method. She claims 

she was “inundated with calls and emails” from sales 

representatives with questions about it. J.A. 988. In an email 

to her supervisors, Mike Slesinski and Peter Hill, Parks stated 

that she was “happy that the talk was met with such enthusiasm” 

but was “hesitant to give any info on the lecture without 

talking to management” and could not “handle the huge volume of 

requests that seems to be building up.” Id. at 989. Parks 

proposed a conference call with the sales representatives to 

discuss the Kaplan Method because, as she explained in her 

deposition, she wanted “to clear up the confusion . . . to be 

able to ensure that the reps did understand the [Kaplan Method] 

because it was a serious matter and could endanger patient’s 

[sic] safety.” Id. at 811. Parks also claims that she 

complained to Hill about these concerns during field rides with 

him, but Hill recalls Parks saying only positive things about 

the Kaplan Method. See id. at 1880. 

Second, Parks says that she complained to her 

superiors that the Kaplan Method encouraged an “off-label” use 

of the drug. Br. of Appellant 16. An “off-label” use is one 

that has not been approved by the federal Food and Drug 
8

Administration (“FDA”). See United States ex rel. Franklin v. 

Parke-Davis, 147 F. Supp. 2d 39, 43-44 (D. Mass. 2001). 

Although physicians may prescribe drugs for off-label usage, 

federal regulations prohibit drug manufacturers from marketing 

their drugs for off-label purposes. See id.; 21 U.S.C. §§ 

331(a), (d); see also Washington Legal Foundation v. Henney, 202 

F.3d 331, 332-33 (D.C. Cir. 2000) (providing background on offlabel use and promotion of pharmaceutical drugs). 

Parks alleges that she complained to supervisors 

Slesinski, Hill, and Craig LaFay that representatives were 

simplifying the Kaplan Method and thus promoting an off-label 

conversion, but none of them recalls Parks expressing these 

concerns or ever using the terms “illegal,” “fraudulent,” or 

“off-label.” J.A. 1903-04, 1880, 1891. Parks admits that she 

did not put in writing her concerns that Alpharma’s marketing 

practices were off-label or fraudulent, see id. at 819, 821, and 

never used the terms “illegal” or “fraudulent” in conversation, 

but rather used the term “off-label,” see id. at 789-90. 

Finally, Parks says that she voiced concerns about the 

manner in which the Switch Study and Kaplan Method were 

presented. She claims that the study revealed that converting 

patients to Kadian who were also on morphine would result in 

increased, not reduced, costs. J.A. 1948. An abstract prepared 

by a third party failed to mention this fact, id. at 274-78, and 
9

Parks says that she expressed her disapproval that Alpharma had 

decided to “bury” such results, id. at 1948. Parks also says 

that she spoke with Dr. Stephen Sun, a member of the Alpharma 

medical affairs division, who told her that the Switch Study was 

a “failure” and that he did not want the results to be released. 

Id. Parks claims that she sent an email “to prove” to her 

supervisor that the pharmacoeconomic results had been buried. 

Id. at 1949. That email, however, simply states, “This 

[Abstract] Poster has been presented now. It is my 

understanding that [a nurse from Dr. Kaplan’s office] may 

present it herself . . . at a District teleconference.” Id. at 

281. 

Aside from her own testimony, Parks presents no other 

evidence that she expressed her disapproval with Alpharma’s 

handling of the Switch Study abstract, and no reasons why she 

believed Alpharma was responsible for the alleged “burying,” 

when a third party actually prepared the abstract.

3. COVENTRY PRESENTATION

Parks also says that she complained about a 

teleconference presentation by Dr. Kaplan to Coventry Health 

Care in February of 2006. Part of the presentation was meant to 

promote Kadian as being less prone to diversion (i.e., less 

prone to be diverted to the black market) than other opioid 

drugs. J.A. 262. Notably, Parks “arranged for Dr. Kaplan to 
10

speak,” and she also provided certain slides for that

presentation. Id. at 1884. Nevertheless, Parks claims that 

because Kadian had not been proven to be less subject to 

diversion, she felt that marketing it that way would be 

considered off-label promotion. 

When Parks discovered that the presentation would 

involve a discussion of diversion, she wrote an email to Hill to 

express these concerns. The email stated,

Between us, I am not at all comfortable with this 

approach. If it were me[,] I would not do this. The 

success with Medicaid in [Maryland] was due to a 

strong clinical support from my [doctors] and a great 

detail from Dr. Royal . . . . Nonetheless, I am doing 

all that I can to help [Matt Anderson, Alpharma’s 

Managed Care Representative, who was responsible for 

the presentation].”

J.A. 262. Hill responded, “I would agree, I think we need to 

take a more clinical approach than abuse and diversion.” Id. at 

1884.3

 3 Because Dr. Kaplan was not on Alpharma’s list of approved 

speakers, he could not be paid his $500 honorarium for the 

Coventry presentation through normal channels. Parks says that

her supervisors encouraged her to buy Dr. Kaplan a gift 

certificate with her company American Express card, but she 

refused to do so. Eventually, Dr. Kaplan was paid by a check 

issued by Alpharma. See J.A. 446-58. It is not clear whether 

Parks desires to use this fact as evidence of an FCA protected 

activity or retaliatory behavior on the part of Alpharma. 

Regardless, we do not find it persuasive or relevant to our 

analysis. 
11

4. DOSE-DUMPING STUDY

The next issue about which Parks says she complained 

concerned a “dose-dumping” study conducted by Alpharma. In July 

2005, the FDA asked a competitor pharmaceutical company to 

withdraw the pain medication Palladone from the market because a 

study had shown risks of dose-dumping, which is the premature 

and exaggerated release of the pain-killing component in a drug 

caused by alcohol use. J.A. 57, 202-04. The FDA then requested 

that Alpharma also conduct a dose-dumping study of its own with 

regard to Kadian. See id. at 57, 1616-18. The study was 

completed after Parks’s July 2006 termination, and the final 

results indicated that Kadian was not susceptible to dosedumping risks. See id. at 1618.

In February 2006, however, Parks learned third-hand 

from a competitor’s sales representative that a clinical trial 

showed risks of dose-dumping in Kadian. Parks relayed the 

information to Hill, Slesinski, and Alpharma marketing director 

Eric Vandal. They told her that those rumors were false. See

J.A. 772-73, 1547-50, 1955. 

Also in February 2006, Parks was told by an Alpharma 

sales representative that the clinical trials were showing a 

risk of dose-dumping. J.A. 1955-56. Parks says that she 

relayed this information to Dr. Sun. She claims that he told 

her to “stop asking questions” and “mind your own business.” 
12

Id. at 774. Dr. Sun has no recollection of this conversation. 

See id. at 1201-02, 1218-19. Parks also says that she expressed 

concerns to Ron Warner, Alpharma’s Vice-President, that Alpharma 

was marketing the drug as having no risk when co-ingested with 

alcohol, when the dose-dumping study was not yet complete. See

id. at 1956-57. 

5. INTERNET SURVEILLANCE STUDY

Lastly, Parks claims that she complained about an 

internet surveillance study conducted by Alpharma. The study 

was conducted to monitor websites frequently used by 

prescription drug abusers, who share messages about their drug 

of choice. The results showed that other drugs such as 

OxyContin and Percocet were mentioned more frequently than 

Kadian on these sites. J.A. 1019-20. 

In June 2006, Dr. Stauffer gave a presentation about 

the internet surveillance study at a national Alpharma meeting. 

Parks alleges that she complained about this presentation to 

LaFay and Dr. Stauffer because she was concerned that sales 

representatives were using the study to market Kadian as less 

prone to abuse and diversion, which was not necessarily true. 
13

J.A. 1016-17, 1607, 1957-58. Neither LaFay nor Dr. Stauffer 

remembers those conversations. See id. at 1034, 1603.4

B.

In March 2006, Alpharma’s Human Resources Director 

Regina Donohue began receiving telephone calls from other sales 

representatives who were complaining about Parks’s behavior. 

They said that Parks was “making inappropriate and disrespectful 

comments about her supervisors,” “inquiring into other 

employees’ salaries and merit increases,” and “spreading rumors” 

about an extramarital affair between Hill and another sales 

representative. J.A. 1765. In early March 2006, Donohue also 

learned from Slesinski that Parks was telling others that she 

was “unhappy” with her 2005 merit increase. Id. 

As a result, Donohue conducted an investigation into 

the complaints about Parks. Donohue interviewed Hill, LaFay, 

and Slesinski on March 8, 2006, regarding Parks’s complaints 

 4 Parks presents other allegations in an attempt to show 

that Alpharma engaged in retaliatory behavior. For example, she 

claims that Hill made derogatory comments about her physical 

appearance, mocked her hair color, threatened to fire her unless 

she attended a meeting in Amelia Island, and urged her to leave 

her father-in-law’s funeral in New Jersey to go on a field ride 

with him. See J.A. 428-29, 460-61, 1958. Because these 

allegations were made in support of Parks’s claim on the third 

prong of the prima facie case, we find them to be irrelevant to 

our analysis here. 
14

about her merit increase.5 She also conducted telephone 

interviews with other sales representatives concerning Parks’s 

alleged behavior. Donohue took extensive notes during her 

investigation, which suggested that several employees complained 

that Parks had been a negative influence on the sales force 

because she spread rumors, criticized Alpharma’s management, and 

acted like a “bully.” J.A. 1766-67, 1808-15. 

Ultimately, on May 5, 2006, Donohue and another human 

resources manager, George Rose, met with Parks to discuss the 

complaints. Shortly thereafter, on May 8, 2006, Parks’s lawyer 

faxed a letter to Alpharma, and accused Hill of retaliating 

against Parks by claiming that she was spreading false rumors 

about him. In the letter, Parks asked that Alpharma investigate 

her claim of Hill’s alleged retaliation. See J.A. 1873-75. 

They did so and found no support for her allegations. Id. at 

1768-70. 

At the conclusion of the investigation into the 

complaints about Parks, Alpharma legal counsel Elissa Halperin 

notified Parks that no disciplinary action would be taken 

against her, but she warned both Parks and her attorney to keep 

 5 Notably, however, the evidence shows that Parks did not 

know about her merit increase until March 16, 2006. Because 

this discrepancy bears on the third prong of the prima facie

case, it is immaterial to our analysis here.
15

that investigation confidential, and especially not to discuss 

the results of the investigation with other employees. See

J.A. 560-62, 1846. Nonetheless, on June 14, 2006, Hill informed 

Donohue that Parks was disclosing some details of that 

investigation to another sales representative. Donohue spoke 

with this sales representative, who confirmed in a written, 

signed statement, that Parks had done so. See id. at 1843. 

On July 24, 2006, Alpharma terminated Parks. J.A. 

661, 1773. According to Alpharma, the company’s management 

decided to terminate Parks’s employment as a result of the 

numerous complaints regarding her insubordinate behavior and as 

a result of her failure to keep the internal investigation 

regarding her allegations confidential. Id. at 1682-83, 1772-

73, 1846-47. 

C.

On September 13, 2006, two months after her 

termination, Parks filed under seal this qui tam action as a 

relator. In her Second Amended Complaint, filed June 23, 2008, 

she alleged that Alpharma paid illegal kickbacks to providers to 

induce them to prescribe Kadian, in violation of the federal 

Anti-Kickback Act, 42 U.S.C. §§ 1320a-7b(b), and that it made 

false representations about Kadian’s effectiveness and risks and 

improperly promoted on-label and off-label uses of the drug, in 

violation of the Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-
16

97. See J.A. 17-109. Parks averred that, by these practices, 

Alpharma caused prescriptions to be written based on false 

pretenses and false claims to be submitted to government-funded 

health insurance programs for reimbursement. Thus, Parks 

asserted that Alpharma violated the provisions of the FCA and 

defrauded federal and state governments out of tens of millions 

of dollars. See id. at 69; Br. of Appellant 4. 

As pertinent here, Parks further alleged that during 

her four-year tenure with Alpharma, she “questioned the 

marketing instructions her Alpharma supervisors had given her,” 

“suggested that Alpharma correct them,” and “began to gather 

facts to disclose [Alpharma’s] fraud,” and was terminated in 

retaliation for these actions, in violation of the FCA. J.A. 

67-68, 103-104; see also Br. of Appellant 3.

The Second Amended Complaint remained under seal while 

the government investigated the allegations, pursuant to 31 

U.S.C. § 3730(b)(2). On March 10, 2010, the Department of 

Justice and Parks executed a $42.5 million settlement agreement 

with Alpharma. Parks received over $5 million dollars for her 

role as a whistleblower, pursuant to 31 U.S.C. § 3730(d). J.A. 

727. 

As a result of the settlement, all claims against 

Alpharma were dismissed except Parks’s FCA retaliation claim. 

Alpharma moved for summary judgment on this claim on February 
17

28, 2011, arguing that Parks failed to make a prima facie case. 

The court granted the motion, see United States ex rel. Parks v. 

Alpharma, Inc., No. 1:06-cv-02411, 2011 WL 1366491 (D. Md. Apr. 

11, 2011),6 and Parks timely appealed. We possess jurisdiction 

pursuant to 28 U.S.C. § 1291.

II.

We review the district court’s grant of summary 

judgment de novo, viewing “all facts and reasonable inferences 

in the light most favorable to . . . the non-moving party” — in 

this case, Parks. United States ex rel. Owens v. First Kuwaiti 

Gen. Trading & Contracting Co., 612 F.3d 724, 728 (4th Cir. 

2010). Summary judgment is appropriate if “there is no genuine 

issue as to any material fact” and the movant, Alpharma, is 

 6 Parks took other legal actions based on the alleged 

circumstances of her termination, including filing a criminal 

complaint accusing Hill of assault and battery because he 

allegedly "smacked [her] on [her] butt" at a conference, see

J.A. 687-88; a defamation action against Hill and another sales 

representative, see id. at 532; and a wrongful termination suit 

against Alpharma, see id. at 492, all in state court. The 

criminal investigation was dropped after several of Parks’s coworkers indicated that Parks had asked them to lie and say they 

had witnessed the alleged actions of Hill. See id. at 1775. 

The defamation action was voluntarily dismissed by Parks. See

id. at 532; Parks v. Armstrong, No. 03C07004974 (Cir. Ct. 

Baltimore Co.), filed May 2, 2007, dismissed Mar. 13, 2008. The 

wrongful termination suit was dismissed for failure to state a 

claim. See Parks v. Alpharma, Inc., 10 A.3d 199 (Md. 2010); 

aff’d, 25 A.3d 200 (Md. 2011).
18

“entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(c). 

After reviewing the evidence of an alleged genuine 

issue of material fact, we must ask “whether a fair-minded jury 

could return a verdict for the plaintiff on the evidence 

presented. The mere existence of a scintilla of evidence in 

support of the plaintiff’s position will be insufficient; there 

must be evidence on which the jury could reasonably find for the 

plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 

(1986). Indeed, at the summary judgment stage, the district 

court has “the affirmative obligation [] to prevent factually 

unsupported claims and defenses from proceeding to trial.” 

Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (internal 

quotation marks omitted). 

III.

In adopting the FCA, Congress intended “to protect the 

funds and property of the government.” Rainwater v. United 

States, 356 U.S. 590, 592 (1958). An FCA suit “may be brought 

against anyone who ‘knowingly presents’ to the government ‘a 

false or fraudulent claim for payment or approval’” or 

“‘knowingly makes . . . a false record or statement material to 

a false or fraudulent claim.’” Owens, 612 F.3d at 728 (quoting 

31 U.S.C. § 3729(a)(1)). 
19

The FCA contains an enforcement mechanism known as the 

“qui tam” provision. See 31 U.S.C. § 3730 (b)-(d). A qui tam

action is brought by a private party “in the name of the United 

States.” Mann v. Heckler & Koch Defense, Inc., 630 F.3d 338, 

343 (4th Cir. 2010). The FCA also contains a whistleblower 

provision, 31 U.S.C. § 3730(h), which “prevents the harassment, 

retaliation, or threatening of employees who assist in or bring 

qui tam actions.” Zahodnick v. Int’l Bus. Machs. Corp., 135 

F.3d 911, 914 (4th Cir. 1997).

The version of 31 U.S.C. § 3730(h) in effect at the 

time of the filing of Parks’s Second Amended Complaint provided 

the following: 

Any employee who is discharged, demoted, suspended, 

threatened, harassed, or in any other manner 

discriminated against in the terms and conditions of 

employment by his or her employer because of lawful 

acts done by the employee on behalf of the employee or 

others in furtherance of an action under this section, 

including investigation for, initiation of, testimony 

for, or assistance in an action filed or to be filed 

under this section, shall be entitled to all relief 

necessary to make the employee whole. 

31 U.S.C. § 3730(h) (2006), amended 2009.7

 In order to defeat 

summary judgment on her FCA retaliation claim, Parks must 

“establish a genuine issue of fact showing [that] (1) [she] took 

 7 The statute was amended in 2009 to add “contractor” and 

“agent” to “employee” in the list of potential FCA retaliation 

plaintiffs. That amendment does not impact this appeal. 
20

acts in furtherance of an FCA suit; (2) [Alpharma] knew of those 

acts; and (3) [Alpharma] treated [her] adversely because of 

these acts.” Owens, 612 F.3d at 735. All three factors must 

exist in order for Parks to prevail.

Alpharma argues that Parks did not make any of these 

three required showings. See Br. of Appellee 18-57. The 

district court held that Parks satisfied the first prong, but 

not the other two. Because we agree that Parks did not satisfy 

the second prong – that Alpharma knew that Parks took acts in 

furtherance of an FCA suit - we affirm on that ground alone. 

The second prong of the FCA retaliation test, also 

known as the “notice” prong, is appropriately viewed from “the 

employer’s perspective” and turns on whether “the employer is 

aware of the employee’s conduct.” Mann, 630 F.3d at 344. In 

that regard, this court has held that the employer must be “on 

notice that litigation is a reasonable possibility.” Eberhardt 

v. Integrated Design & Constr., Inc., 167 F.3d 861, 868 (4th 

Cir. 1999). 

In Eberhardt, the employee-relator’s job description 

involved internal investigation of fraud against the government. 

167 F.3d at 868. This court held that, because of the special 

nature of his position, Eberhardt could only bring an FCA 

retaliation action by showing that he “expressly stat[ed] an 

intention to bring a qui tam suit” or “by any action which a 
21

factfinder reasonably could conclude would put the employer on 

notice that litigation is a reasonable possibility.” Id. 

Parks argues that the Eberhardt “notice” standard “is 

a slightly higher standard than the standard applicable in this 

case” and “does not apply in this case because [her] job duties 

at Alpharma never entailed investigating fraud.” Br. of 

Appellant 35. She also argues that because the district court 

recognized that “internal reporting of allegedly fraudulent or 

false claims qualifies as activity protected by the 

whistleblower provisions of the FCA, . . . [it] implicitly found 

that Mrs. Parks’s internal complaints to her superiors at 

Alpharma were identifiable as disclosures of fraud or falsity,” 

thus satisfying the notice prong. Id. at 35-36 (internal 

quotation marks omitted). Both arguments lack merit. 

First, in Eberhardt, this court explained that the 

employee-relator must show that his or her actions “let the 

employer know, regardless of whether the employee’s job duties 

include investigating potential fraud, that litigation is a 

reasonable possibility.” 167 F.3d at 868 (emphasis supplied). 

Eberhardt may have been held to a higher standard in that 

particular case, inasmuch as his job duties required that he 

make certain disclosures of internal fraud and falsity. But the 

distinction Parks attempts to make is factual, not legal. In 

applying the Eberhardt standard, we have a duty to make a “fact 
22

specific inquiry” as to Alpharma’s knowledge of Parks’s 

activities and view them in the appropriate context. Hutchins 

v. Wilentz, Goldman & Spitzer, 253 F.3d 176, 189 (3d Cir. 2001). 

This inquiry does not, however, alter the legal framework 

described above. 

Second, Parks appears to contend that, because the 

district court concluded that she satisfied the first prong of 

the FCA retaliation claim, it necessarily should have concluded 

that she satisfied the notice prong as well. In Mann, although 

this court stated that “[c]ombining the protected activity and 

notice elements is a perfectly reasonable approach when both 

elements are in dispute,” it also cautioned against interpreting 

§ 3730(h) “in a manner that would render some of its language 

meaningless.” 630 F.3d at 344 (internal quotation marks 

omitted). We must, therefore, avoid collapsing the two prongs 

into the same analysis, and rather, separately address the 

question of whether Alpharma was on notice that FCA litigation 

was “a reasonable possibility.” Eberhardt, 167 F.3d at 868; 

see also Hutchins, 253 F.3d at 188 (holding that the notice 

prong “requires the employee to put his employer on notice of 

the ‘distinct possibility’ of False Claims Act litigation”); 

United States ex rel. McKenzie v. BellSouth Telecomms., Inc., 

123 F.3d 935, 944 (6th Cir. 1997) (“An employee must supply 

sufficient facts from which a reasonable jury could conclude 
23

that the employee was discharged because of activities which 

gave the employer reason to believe that the employee was 

contemplating a qui tam action against it.” (internal quotation 

marks omitted)). 

Parks fails to satisfy her burden because she does not 

present sufficient evidence to show that Alpharma was on notice 

that FCA litigation was a reasonable possibility. She argues 

that she made “internal complaints that [we]re identifiable as 

disclosures of fraud or falsity to the employer,” which were 

sufficient to “put [Alpharma] on notice of [her] protected 

activity.” Br. of Appellant 30. According to Parks, these 

alleged “protected activit[ies]” include, 

• “investigat[ing] and question[ing] some of 

Alpharma’s illegal and promotional 

activities concerning Kadian,” id. at 3;

• “complaining to her superiors at Alpharma 

that the [Kaplan Method] was ‘off-label,’” 

id. at 16;

• “objecting to the proposed off-label 

[Coventry] presentation [on diversion],” id.

at 20;

• “complain[ing] directly to Mr. LaFay about 

Alpharma’s decision to bury the 

pharmacoeconomic results of the Switch 

Study,” id. at 29;

• “complain[ing] directly to Mr. LaFay about . 

. . the internet surveillance study,” id.; 

and
24

• “rais[ing] her concerns regarding the 

alcohol clinical trials [of the dose-dumping 

study] with Mr. Warner,” id.

Nothing in Parks’s proffered evidence, however, shows 

that anyone at Alpharma would have reasonably believed that she 

was contemplating or acting in furtherance of an FCA action. 

Indeed, Parks’s complaints were clearly couched in terms of 

concerns and suggestions, not threats or warnings of FCA 

litigation. See Zahodnick, 135 F.3d at 914 (affirming summary 

judgment for the employers where employee “merely informed a 

supervisor of [a] problem,” “never informed anyone that he was 

pursuing a qui tam action,” and provided “no evidence that [the 

employers] were aware of [employee’s] alleged protected 

activity”); see also Luckey v. Baxter Healthcare Corp., 183 F.3d 

730, 733 (7th Cir. 1999) (“An employer is entitled to treat a 

suggestion for improvement as what it purports to be rather than 

as a precursor to litigation.”); United States ex rel. Yesudian 

v. Howard Univ., 153 F.3d 731, 743 (D.C. Cir. 1998) (“Merely 

grumbling to the employer about . . . regulatory violations does 

not satisfy the requirement – just as it does not constitute 

protected activity in the first place.”).

Furthermore, copious documentary evidence shows that 

Parks was an employee who was supportive and enthusiastic about 

promoting Kadian and appeasing Dr. Kaplan. It is clear that it 

was in Parks’s best interest professionally to support and 
25

promote the clinical studies about which she now complains. 

Even if we view Parks’s complaints and objections in a vacuum, 

however – including her explicit use of the term “off-label” to 

her supervisors – there is no indication that such internal 

criticism would have put Alpharma on notice of a False Claims 

Act lawsuit, as required under Eberhardt and 31 U.S.C. § 3730. 

The FCA prohibits “false or fraudulent claim[s]” submitted to 

the government “for payment.” See 31 U.S.C. § 3729(a). Here, 

there is absolutely no evidence that a physician wrote a 

prescription for Kadian, which was then submitted to the 

government for reimbursement, based on the Switch Study, 

Coventry presentation, dose-dumping study, or internet 

surveillance study. See Hopper v. Solvay Pharms., Inc. 588 F.3d 

1318, 1326 (11th Cir. 2009) (affirming dismissal of FCA 

complaint where it failed to identify “a single physician who 

wrote a prescription with [] knowledge [that the cost of filling 

the prescription would be borne by the government],” “a single 

pharmacist who filled such a prescription,” or “a single state 

healthcare program that submitted a claim for reimbursement to 

the federal government”); Parke-Davis, 147 F. Supp. 2d at 52 

(“[An] alleged FCA violation arises – not from unlawful offlabel marketing activity itself – but from the submission of 

Medicaid claims for uncovered off-label uses induced by 

Defendant’s fraudulent conduct.”). 
26

Moreover, Parks failed to adduce any evidence that the 

off-label promotion would inevitably lead to such false 

submissions. Indeed, Parks offered no more than speculation, 

which at summary judgment, is insufficient. See Othentec Ltd. 

v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (observing that 

non-moving party must come forward with more than “mere 

speculation or the building of one inference upon another” 

(internal quotation marks omitted)). 

Accordingly, we hold that Parks did not satisfy the 

notice prong of her FCA retaliation prima facie claim, and we 

therefore affirm the district court on that ground.

 

IV.

For the foregoing reasons, the judgment of the 

district court is 

AFFIRMED.