[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10421

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DARIUS CLARKE, M.D.,

RESTORATIVE HEALTH AND WELLNESS, PLLC, 

ex rel, 

Plaintiffs-Appellants,

STATE OF FLORIDA, 

Plaintiff,

versus

HEALTHSOUTH CORPORATION, 

n.k.a. Encompass Health Corporation, 

REHABILITATION HOSPITAL CORPORATION OF 

AMERICA, LLC, 

d.b.a. Encompass Health Rehabilitation Hospital of Richmond, 

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2 Opinion of the Court 21-10421

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:14-cv-00778-VMC-AAS

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Before WILLIAM PRYOR, Chief Judge, GRANT, and HULL, Circuit 

Judges.

PER CURIAM:

Plaintiffs Dr. Darius Clarke and his company Restorative 

Health and Wellness, PLLC (collectively “Dr. Clarke”) filed a qui 

tam complaint against HealthSouth Corp. and related entities 

(“HealthSouth”) on behalf of the United States and twenty states

asserting claims under the False Claims Act (“FCA”), 31 U.S.C. 

§§ 3729-31, and analogous state laws. The qui tam complaint 

alleged, inter alia, that HealthSouth engaged in fraudulent 

Medicare billing practices in violation of § 3729. It also alleged that 

HealthSouth had retaliated against Dr. Clarke, the Medical 

Director at one of HealthSouth’s inpatient rehabilitation facilities, 

in violation of the anti-retaliation provision in § 3730(h)(1). 

After the United States intervened, the parties settled the qui 

tam claims, which were voluntarily dismissed, leaving only Dr. 

Clarke’s § 3730(h)(1) retaliation claim. Following additional 

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21-10421 Opinion of the Court 3

discovery, the district court granted HealthSouth’s motion for 

summary judgment on Dr. Clarke’s retaliation claim. 

The district court determined that to state a § 3730(h) 

retaliation claim, the plaintiff must show that: (1) the employee 

engaged in conduct protected under the FCA; (2) the employer 

knew the employee was engaged such conduct; and (3) the 

employer retaliated against the employee because of such conduct. 

In granting summary judgment, the district court assumed Dr. 

Clarke had engaged in protected conduct under the FCA but 

concluded that Dr. Clarke had failed to create a genuine dispute of 

material fact (1) as to whether HealthSouth knew he had engaged 

in protected conduct, and (2) as to whether HealthSouth had 

retaliated against him because of the protected conduct; thus, he 

failed to establish a prima facie case of § 3730(h)(1) retaliation. On 

appeal, Dr. Clarke does not dispute the district court’s three-part 

formulation of the prima facie case but challenges the district 

court’s rulings that there were no genuine issues of material fact as 

to the second and third elements. 

Further, in reaching its conclusion as to the third element

about causation, the district court applied the McDonnell Douglas

framework and concluded that HealthSouth had articulated a 

legitimate reason for its actions as to Dr. Clarke and that Dr. Clarke 

had not shown pretext.1 We need not decide whether the 

McDonnell Douglas framework applies to this type of retaliation 

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

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4 Opinion of the Court 21-10421

claim because neither party challenged its application to a 

§ 3730(h)(1) retaliation claim. Furthermore, HealthSouth did show 

legitimate reasons for its actions, and on appeal Dr. Clarke has not 

challenged the district court’s ruling as to pretext. 

After careful review of the parties’ briefs and the record and 

with the benefit of oral argument, we conclude that Dr. Clarke has 

shown no reversible error in the district court’s ultimate decision 

to grant summary judgment in favor of HealthSouth. 

AFFIRMED. 

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