NOT RECOMMENDED FOR FULL-TEXT PUBLICATION 

File Name: 17a0538n.06 

Case No. 16-5722 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

FALUSO FAKOREDE, 

 Plaintiff-Appellant, 

v. 

MID-SOUTH HEART CENTER, P.C., 

 Defendant-Appellee. 

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE WESTERN 

DISTRICT OF TENNESSEE 

O P I N I O N

BEFORE: McKEAGUE, KETHLEDGE, STRANCH, Circuit Judges. 

McKEAGUE, Circuit Judge. Faluso Fakorede brings this claim alleging unlawful 

retaliation in violation of the False Claims Act (FCA) following his termination from Mid-South 

Heart Center in February of 2015. The district court found Fakorede failed to allege that he had 

engaged in protected activity prior to his termination and thus granted Mid-South’s Rule 12(b)(6) 

motion to dismiss. We agree and affirm. 

I

Fakorede was a physician who worked as a cardiologist in Jackson, Tennessee from 2013 

to 2015. He was recruited to work in the Jackson area by the Jackson-Madison County General 

Hospital District—a Tennessee governmental entity—in order to fill a need for cardiologists in 

the area. 
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As a result, Fakorede became an employee of Mid-South, a private corporation in 

Jackson. Under a separate recruiting agreement, the Hospital District agreed to establish a 

support account that ensured Fakorede was paid $500,000, no matter his total patient collections. 

Essentially, the Hospital District permitted Fakorede to use the support account to draw the 

difference between his net collections (total collections value minus any expenses attributed to 

him) and $500,000. Instead, in accordance with its separate employment agreement, Mid-South 

simply paid Fakorede $500,000, accounted for his collections, and then directed him to draw on 

the support account based on those calculations. Fakorede then assigned the draw to Mid-South. 

Additionally, Mid-South and Fakorede agreed that, if Fakorede did not stay for the full threeyear term outlined in the recruiting agreement, he would owe any draw amount back to the 

Hospital District. However, Mid-South agreed to indemnify Fakorede if the Hospital District 

determined “based on an accounting” that draws from the support fund had been improperly 

calculated. 

Approximately ten months into his first year, Fakorede asked for documentation related 

to Mid-South’s calculations of the draw totals. Then, approximately fourteen months after 

starting work at Mid-South—some four months after he first raised concerns about how expenses 

had been calculated—Fakorede was terminated. It later came to light that Mid-South had 

improperly attributed over $200,000 in expenses to Fakorede during his first year. He now 

brings this retaliation claim under the FCA, 31 U.S.C. § 3730(h), based on his termination. The 

district court granted Mid-South’s Rule 12(b)(6) motion to dismiss for failure to state a claim and 

dismissed the complaint. 
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II

 The district court’s grant of a motion to dismiss pursuant to Rule 12(b)(6) is reviewed de 

novo. Goad v. Mitchell, 297 F.3d 497, 500 (6th Cir. 2002). We may affirm a decision of the 

district court if correct for any reason, including one not considered below. U.S. Postal Serv. v. 

Nat’l Ass’n of Letter Carriers, AFL-CIO, 330 F.3d 747, 750 (6th Cir. 2003). 

Rule 12(b)(6) permits a court to dismiss a complaint for “failure to state a claim upon 

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). We construe the complaint in the light 

most favorable to the plaintiff and accept all well-pleaded factual allegations as true. Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009). To survive a Rule 12(b)(6) motion, the complaint must contain 

“either direct or inferential allegations respecting all material elements necessary for recovery 

under a viable legal theory.” D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014) (citation 

omitted). 

This case arises under the FCA’s anti-retaliation provision, 31 U.S.C. § 3730(h). The 

provision provides relief for an employee who was: 

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

discriminated against in the terms and conditions of employment because of 

lawful acts done by the employee, contractor, agent or associated others in 

furtherance of an action under this section or other efforts to stop 1 or more 

violations of this subchapter. 

31 U.S.C. § 3730(h). To succeed on a claim that § 3730(h) was violated, a plaintiff must show 

that (1) she engaged in a protected activity, (2) the employer knew she engaged in the protected 

activity, and (3) the employer discharged or otherwise discriminated against the employee as a 

result of the protected activity. Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir. 

2003); Jones-McNamara v. Holzer Health Sys., 630 F. App’x 394, 398 (6th Cir. 2015). 
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Dismissal of a retaliation claim is proper when a plaintiff fails to adequately plead any one of 

these three elements. See Yuhasz, 341 F.3d at 566. 

Our analysis begins and ends with the first element—whether Fakorede’s complaint 

adequately alleges that he engaged in protected activity prior to his termination. Relevant 

protected activity would be an “effort[] to stop 1 or more violations of [the FCA].” 31 U.S.C. § 

3730(h). Such an effort must stem from a reasonable belief that fraud is being committed against 

the federal government. Jones-McNamara, 630 F. App’x at 400. In other words, to plead 

protected activity, Fakorede must allege conduct directed at stopping what he reasonably 

believed to be fraud committed against the federal government. See Miller v. Abbott Labs., 

648 F. App’x 555, 560 (6th Cir. 2016) (quoting Jones-McNamara, 630 F. App’x at 399). In this, 

Fakorede’s pleadings fall short. 

Fakorede’s relevant pre-termination conduct was related to the calculation of costs 

attributed to him by Mid-South for which it was effectively reimbursed by the Hospital District. 

Fakorede requested information related to those expenses, including a year-end financial report 

and underlying documents and data. After receiving the financial report, he “expressed 

concerns” about some of the expenses attributed to him. Eventually, he requested an 

independent review of the report and was told there would be a line-item audit. Although 

Fakorede was “reassured by the line-item audit,” he nonetheless “reminded” the Hospital District 

that “only expenses permitted by federal law for the [Hospital District] to cover” were properly 

attributable to Fakorede under his recruiting agreement. He was terminated approximately one 

week later. To tie his conduct to federal fraud, as is necessary for his claim to survive, Fakorede 

asserts that, if Mid-South improperly calculated expenses to overdraw from the support account, 

then any Medicare claims “tainted” by violations of the Stark Law and Anti-Kickback Statute 
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were submitted to Medicare in violation of the FCA. This legal conclusion itself is not 

unfounded, as the connection between the Anti-Kickback Statute, the Stark Law, and the FCA is 

statutory. See 42 U.S.C. § 1395nn(a)(1)(B); 42 U.S.C. § 1320a-7b(g). Nonetheless, one cannot 

reasonably infer from Fakorede’s complaint that his efforts were directed toward preventing 

what he reasonably believed was ongoing federal fraud. 

In essence, Fakorede requested information related to expenses attributed to him by his 

private employer, expressed concerns as to whether those expenses were correctly calculated and 

reimbursed by a Tennessee entity, and reminded others that an audit should check for 

compliance with federal law. This fails to allege conduct reasonably related to fraud against the 

federal government. See McKenzie v. BellSouth Telecommunications, Inc., 219 F.3d 508, 516–

17 (6th Cir. 2000) (protected activity does not include “merely urging compliance with 

regulations”) (citing U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 744 (D.C. Cir. 1998); 

see also Iqbal, 556 U.S. at 679 (we do not accept legal conclusions as true absent supporting 

factual allegations). Accordingly, Fakorede has not pled that he engaged in protected activity. 

However, Fakorede argues that his complaint should survive because it is reasonable to 

infer that he was concerned about the violations of federal law because he knew that Mid-South, 

like all major healthcare providers, submitted claims to Medicare for Fakorede’s services. But 

this inference is not supported by any factual allegations in the complaint. At best, the 

complaint—in its “governing law” section—shows that the FCA may be implicated by violations 

of the Stark Law. While this may be true, there are no underlying allegations to support the 

conclusion that Fakorede himself, at any time prior to his termination, understood the connection 

between the FCA and other federal law, that his activity was motivated by this connection, or 

that even a single Medicare claim was submitted by Mid-South during that time. We are not to 
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assume Fakorede’s conduct was directed at preventing possibly “tainted” claims from being 

submitted to the federal government when nothing in the pleadings shows he understood, was 

motivated by, or even aware of that possibility. See Iqbal, 556 U.S. at 679. 

Still, it may be fair to infer that Fakorede’s alleged conduct arose out of a reasonable 

belief that his employer was committing fraud against the Hospital District. Even so, it is 

unreasonable to infer that Fakorede believed any fraud committed against the Hospital District—

a state entity—constituted fraud against the federal government. Indeed, the alleged fraud 

committed against the Hospital District was precisely what Fakorede’s “concerns” seemed to 

target: that Mid-South miscalculated expenses in order to induce the Hospital District to overpay. 

However, the alleged fraud against the federal government—involving unspecified Medicare 

claims “tainted” by violations of federal law—was indirect, complex, and nowhere facially 

contemplated in Fakorede’s conduct as described in his complaint. Absent any supporting 

factual allegations, it is unreasonable to infer that Fakorede’s conduct was directed toward 

preventing federal fraud. Thus, Fakorede has failed to allege he was engaged in protected 

activity under the FCA prior to his termination. He therefore has no retaliation claim under 31 

U.S.C. § 3730(h). 

III

 For the foregoing reasons, we affirm the district court. 

 
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JANE B. STRANCH, Circuit Judge, dissenting. At issue in this case is whether Dr. 

Fakorede stated a claim against his employer for retaliation in violation of the False Claims Act 

(FCA). To make this determination, we accept as true the allegations of the complaint and 

evaluate their viability under the provisions of the FCA in force at the time of the filing. Dr. 

Fakorede filed his complaint after the FCA was amended in 2009 to expand the protections—and 

therefore claims—available to qui tam relators. Because I believe that Dr. Fakorede’s complaint 

states a claim under the amended FCA, I respectfully dissent. 

The FCA is the key tool employed by the government to require that fraudulently claimed 

funds be returned to the United States and its citizens. Many FCA cases rely on whistleblowers 

within companies to find and report such fraud, collect evidence, and sometimes litigate the 

claims. But whistleblowers face serious risks, as employers are unlikely to shrug off leaks of 

incriminating information from within their own ranks. The FCA has long protected 

whistleblowers by authorizing a cause of action for employees who have been retaliated against 

for involvement with an FCA claim. Traditionally, civil relief for retaliatory actions could be 

sought by those “in furtherance of an action under [the FCA].” 31 U.S.C. § 3730(h)(1). Because 

judicial narrowing of the scope of the FCA led to a decline in such cases and a significant drop in 

monies recovered, Congress sought to make the FCA more effective by expanding protection for 

whistleblowers. S. Rep. 111-10, 4. Under the FCA as amended in 2009, the ability to seek relief 

was made available not just to those acting “in furtherance of an action” under the FCA but also 

to those who undertook “other efforts to stop 1 or more violations of this subchapter.” 31 U.S.C. 

§ 3730(h)(1). The amended FCA and subsequent cases show that Dr. Fakorede states a claim 

within the category of those protected by the FCA’s retaliation provision. 
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 This claim arose in the context of Dr. Fakorede’s concern about expenses that were 

attributed to his practice and thereby retained by his employer, Mid-South. In December 2014, 

he began requesting financial information from the Hospital that was late and, upon its receipt, 

raised issues with multiple executives and requested an audit. On January 30, 2015, he was told 

that over $200,000 of expenses claimed by Mid-South were disallowed. In response, Dr. 

Fakorede made multiple requests in early February for information about the audit he had 

requested, emphasizing that his contract contains express language on expenses permitted by 

federal law. The Hospital told him on February 9 that a line-item audit was in progress. MidSouth terminated Dr. Fakorede on February 10. He was right to be concerned—the audit Dr. 

Fakorede requested ultimately found that Mid-South claimed over $314,000 in expenses related 

to his medical practice that were improper. 

Dr. Fakorede had correctly warned that the improper expenses could constitute an “illegal 

kickback scheme.” Healthcare providers who participate in Medicare and Medicaid—which 

includes all major providers—certify that they are complying with the Stark Law and AntiKickback Statute when they submit claims for payment. See CMS-1500, 

https://www.cms.gov/Medicare/CMS-Forms/CMS-Forms/Downloads/CMS1500.pdf (last visited 

Sept. 18, 2017) (“In submitting this claim for payment from federal funds, I certify that: . . . this 

claim . . . complies with all applicable Medicare and/or Medicaid laws, regulations and program 

instructions for payment including but not limited to the Federal anti-kickback statute and 

Physician Self-Referral law (commonly known as Stark law) . . . .”). “Falsely certifying 

compliance with the Stark or Anti-Kickback Acts in connection with a claim submitted to a 

federally funded insurance program is actionable under the FCA.” United States ex rel. 

Kosenske v. Carlisle HMA, Inc., 554 F.3d 88, 94 (3d Cir. 2009) (internal citations omitted). 
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 The majority opinion finds that Dr. Fakorede did not adequately plead that he reasonably 

believed he was engaged in conduct to prevent fraud against the federal government. Maj. Op. 4. 

However, Dr. Fakorede pled that on multiple occasions, he pointed out his concerns over “an 

illegal kickback scheme.” He specifically mentioned a “violation of Stark Laws” in an email to 

executives in the immediate aftermath of his termination. Even the recruiting agreement that 

was the basis for the claimed expenses stated that Mid-South would include “only those expenses 

which are legally permitted by federal laws governing recruiting agreements.” 

Dr. Fakorede’s statements and actions occurred within the context of the healthcare 

industry, where sophisticated parties such as those involved here are well aware that claims 

submitted to Medicare are paired with certifications of compliance with applicable laws. In the 

complaint, Dr. Fakorede pointed out that Stark Law and Anti-Kickback Statute violations can 

“taint” claims that are made for services covered by Medicare or Medicaid, federally funded 

programs. Even if the factual basis for some of the steps could have been laid out in more detail, 

an FCA retaliation claim does not require pleading with particularity. Graham Cty. Soil & 

Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 416 & n.1 (2005). The 

only question before us is whether Dr. Fakorede’s complaint states a claim. Drawing on 

“judicial experience and common sense” to undertake the “context-specific task” of Rule 

12(b)(6), Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), I believe that Dr. Fakorede adequately 

pled a reasonable belief that fraud was being committed against the federal government and that 

Mid-South retaliated against him for acting on that belief. I therefore respectfully dissent.