UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CATHERINE CABOTAGE,

Plaintiff,

v. Case No. 2:11-cv-50

JUDGE SMITH

OHIO HOSPITAL Magistrate Judge Deavers

FOR PSYCHIATRY, LLC, et al.,

Defendants.

OPINION AND ORDER

Plaintiff, Catherine Cabotage, brings this action against Defendants, Ohio Hospital for 

Psychiatry, LLC (“OHP”) and Behavioral Centers of America, LLC (“BCA”), arising from 

Defendants’ termination of her employment. She alleges violations of the False Claims Act, 31 

U.S.C. § 3729 et seq., Ohio’s Nurses Whistleblower Act, Ohio Revised Code § 4723.33, and 

Ohio’s public policy. This matter is before the Court on Defendants’ Motion for Summary 

Judgment. (Doc. 24). For the reasons that follow, the Court GRANTS Defendants’ Motion for 

Summary Judgment. 

I. BACKGROUND

Defendant OHP is a psychiatric care facility, which provides psychiatric care to children, 

adolescents, adults, and seniors. (Defs.’ Mot. for Summ. J. at 2). Defendant OHP is operated by 

Defendant BCA. (Compl. at ¶ 5). Plaintiff is a registered nurse licensed to practice in Ohio 

since 1976. (Cabotage Aff., Apr. 6, 2012, ¶¶ 4-5). She has twenty-four years of experience 

working in psychiatric healthcare facilities, four of which were spent in geriatric psychiatric 

units. (Id. at ¶ 5). Plaintiff began working as a registered nurse on the geriatric unit for OHP on 

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November 19, 2009. (Id. at ¶ 9). Plaintiff alleges that she became concerned that OHP’s 

medical director, Dr. Christopher Corner, engaged in fraudulent and illegal activities, so she 

gathered evidence to support her suspicions at the suggestion of Helena Habib, the chief nursing 

officer at the time. (Id. at ¶¶ 15, 34-37). The evidence Plaintiff gathered included recording her 

observations of Dr. Corner’s activities on the Census, a daily document that lists patients’ names, 

sexes, ages, and dates of admission. (Id. at ¶¶ 8-10, 35). Plaintiff contends that she was never 

instructed that the Census was considered confidential patient information. (Id. at ¶ 14). 

Plaintiff also made copies of other documents, including Dr. Corner’s patient progress notes. 

(Cabotage Aff., ¶ 36). Plaintiff gave Ms. Habib a copy of the progress notes and a summary of 

her observations. (Id. at ¶ 37). On February 2, 2010, Plaintiff and Ms. Habib met with Sherri 

Artman, the Vice President of Human Resources. (Id. at ¶ 38). At this meeting, Plaintiff told 

Ms. Artman about Dr. Corner’s conduct that she had observed and believed to be illegal and 

fraudulent. (Id. at ¶ 38). Plaintiff believed that OHP billed the United States government 

through Medicare and Medicaid for Dr. Corner’s services. (Id. at ¶ 29). 

On February 15, 2010, Defendant OHP fired Ms. Habib. (Id. at ¶ 41). As a result, 

Plaintiff was worried that her complaints would be ignored and was unsure about what had 

happened to the documents she had given Ms. Habib. (Cabotage Aff., ¶ 42). Plaintiff took the 

copies of Dr. Corner’s progress notes home because she did not know another way to prove that 

her concerns about him were true. (Id. at ¶¶ 42-43). On February 18, 2010, Plaintiff called the 

Medicare Fraud Hotline and reported her “concerns about Dr. Corner and OHP falsifying 

documents . . . .” (Id. at ¶ 44). The next day, the Ohio Department of Mental Health conducted 

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an on-site investigation in response to an anonymous telephone complaint they received on 

February 18, 2010. (Id. at ¶¶ 45-46). 

On February 23, 2010, a patient told Plaintiff that she did not want to take the medicine 

that had been prescribed to her by Dr. Corner and that Dr. Corner had not seen her. (Id. at ¶¶ 48-

49). The patient asked Plaintiff to call the patient’s daughter to tell her that the patient did not 

want to take the medication and the reason why. (Id. at ¶ 50). That night, Plaintiff took one 

Census document home with her for the purpose of calling a patient’s daughter, at the patient’s 

request and, she alleges, with the patient’s written consent. (Cabotage Aff., ¶¶ 50-56). She 

called the patient’s daughter while she drove home after work. (Id. at ¶ 57). Plaintiff took 

copies of the progress notes home because she was concerned that Dr. Corner might remove or 

alter the originals. (Id. at ¶¶ 36, 40, 42). 

On March 8, 2010, OHP terminated Plaintiff for “fraternizing with patients’ families 

outside of work” in violation of OHP’s confidentiality policies. (Compl. at ¶ 27). Defendants 

contend that it is a violation of company policy to contact a family member of a patient without a 

written release or to remove confidential patient information from the facility. (Defs.’ Mot. for 

Summ. J. at 5). When Sally Boyce, the chief nursing officer, learned of Plaintiff’s 

communication outside of work, she checked the patient’s file, and did not find a written release 

signed by the patient. (Boyce Dep., Mar. 13, 2012, at 16, ¶¶ 2-13). Defendants assert that 

Plaintiff wrongfully removed patient-identifying protected health information to make the phone 

call. (Defs.’ Mot. for Summ. J., at 5). Furthermore, Defendants contend that Dr. Corner is not in 

fact their employee, so any investigation Plaintiff conducted does not fall within the False 

Claims Act. (Defs.’ Mot. For Summ. J. at 7). 

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On March 25, 2010, Plaintiff gave copies of the progress notes to a special investigator 

from the United States Department of Health and Human Services. (Cabotage Aff., at ¶ 77). 

She did not tell anyone about or disclose the Census document until she gave it to her attorney in 

connection with this case. (Id. at ¶¶ 45, 60-61). Plaintiff asserts that OHP did not know that she 

had the Census or any of the other documents until her attorney produced them in the course of 

this case. (Id. at ¶ 74). In March 2012, Defendants filed their motion for summary judgment. 

This motion is fully briefed and ripe for review. 

II. STANDARD OF REVIEW

The standard governing summary judgment is set forth in Rule 56 of the Federal Rules of 

Civil Procedure, which provides that “[t]he court shall grant summary judgment 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.”

Summary judgment will not lie if the dispute about a material fact is genuine; “that is, if 

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate, 

however, if the nonmoving party fails to make a showing sufficient to establish the existence of 

an element essential to that party’s case and on which that party will bear the burden of proof at 

trial. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 

2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); see also Matsushita Elec. 

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).

When reviewing a summary judgment motion, the Court must view all the facts, evidence 

and any inferences that may permissibly be drawn from the facts, in favor of the nonmoving 

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party. Matsushita, 475 U.S. at 587. The Court will ultimately determine whether “the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided 

that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-53. Moreover, 

the purpose of the procedure is not to resolve factual issues, but to determine if there are genuine 

issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir. 1978). The Court’s 

duty is to determine only whether sufficient evidence has been presented to make the issue of 

fact a proper question for the jury; it does not weigh the evidence, judge the credibility of 

witnesses, or determine the truth of the matter. Liberty Lobby, 477 U.S. at 249; Weaver v. 

Shadoan, 340 F.3d 398, 405 (6th Cir. 2003). 

In responding to a summary judgment motion, the nonmoving party “cannot rely on the 

hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must ‘present 

affirmative evidence in order to defeat a properly supported motion for summary judgment.’” 

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (quoting Liberty Lobby, 477 

U.S. at 257). The existence of a mere scintilla of evidence in support of the opposing party’s 

position is insufficient; there must be evidence on which the jury could reasonably find for the 

opposing party. Liberty Lobby, 477 U.S. at 252. The nonmoving party must present “significant 

probative evidence” to demonstrate that “there is [more than] some metaphysical doubt as to the 

material facts.” Moore v. Phillip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993). The Court may, 

however, enter summary judgment if it concludes that a fair-minded jury could not return a 

verdict in favor of the nonmoving party based on the presented evidence. Liberty Lobby, 477 

U.S. at 251-52; see also Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

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Moreover, “[t]he trial court no longer has a duty to search the entire record to establish 

that it is bereft of a genuine issue of material fact.” Street, 886 F.2d at 1479-80. That is, the 

nonmoving party has an affirmative duty to direct the court’s attention to those specific portions 

of the record upon which it seeks to rely to create a genuine issue of material fact. In re Morris, 

260 F.3d 654, 665 (6th Cir. 2001).

III. ANALYSIS

Plaintiff alleges that she was engaged in whistleblowing activity, Defendants knew about 

her activity, and Defendants fired her in retaliation for that activity. Plaintiff contends that her 

discharge was impermissible under the False Claims Act, 31 U.S.C. §§ 3729 et seq., the Ohio 

Nurses Whistleblower Act, Ohio Revised Code § 4723.33, and Ohio public policy. The Court 

will address these claims in turn. 

A. Claim under the False Claims Act

Under the False Claims Act (“FCA”), 31 U.S.C. section 3730(h)(1), “[a]ny employee . . . 

shall be entitled to all relief necessary to make that employee . . . whole, if that employee . . . is 

discharged . . . because of lawful acts done by the employee . . . in furtherance of an action under 

this section . . . .” (2010). To prove a claim of retaliation under section 3730(h)(1), a plaintiff 

must show that “(1) the employee engaged in conduct protected by the Act; (2) the employer 

knew that the employee was engaging in protected conduct; and (3) the employer retaliated . . . 

against the employee [at least in part] because of his or her protected activity.” Nguyen v. City of 

Cleveland, 121 F. Supp. 2d 643, 649 (N.D. Ohio 2000). “‘Protected activity’ means ‘lawful acts 

done by the employee on behalf of the employee or others in furtherance of an [FCA] action, 

including investigation for, initiation of, testimony for, or assistance in an [FCA] action filed or 

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to be filed . . . .’” United States ex rel. Marlar v. BWXT Y-12, L.L.C., 525 F.3d 439, 449 (6th Cir. 

2008) (quoting 31 U.S.C. § 3730(h)). 

Absent direct evidence of retaliation, under the McDonnell Douglas burden-shifting 

framework, the employee must show that the adverse employment action was motivated at least 

in part by the employee’s engagement in protected activity. Weigel v. Baptist Hosp. of E. Tenn., 

302 F.3d 367, 381 (6th Cir. 2002). If the plaintiff employee proves the prima facie case, the 

burden then shifts to the defendant employer to show that it would have made the same decision 

even absent the protected conduct. Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 502 (6th 

Cir. 2009). Then, the burden shifts back to the plaintiff to establish pretext. Id.

First, to meet the burden of showing the employee engaged in protected activity, the 

plaintiff must show that he or she engaged in “activity which reasonably could lead to a viable 

FCA action.” McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508, 516 (6th Cir. 2000) (citing

United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 740 (D.C. Cir. 1998)). However, 

“reporting alleged wrongdoing to supervisors is not sufficient to meet the requirement for 

protected activity. [citation omitted] . . . . Nor is an employee’s investigation of nothing more 

than the employer’s non-compliance with federal or state regulations.” United States ex rel. 

Judd v. Maloy, No. 3:03-CV-241, 2006 U.S. Dist. LEXIS 63465, at 28 (S.D. Ohio, Sept. 6, 2006) 

(citing Yesudian, 153 F.3d at 740). Furthermore, “[s]imply reporting his concern of a 

mischarging to the government to his supervisor does not suffice to establish that [the employee] 

was acting ‘in furtherance of’ a qui tam action.” Zahodnick v. IBM, 135 F.3d 911, 914 (4th Cir. 

Md. 1997). Essentially, the employee must be investigating an action that pertains to fraudulent 

claims. McKenzie, 219 F.3d at 514. With regard to the investigated fraud, the reasonableness is 

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determined by “information known to [the plaintiff] at that time the allegations were made . . . .” 

Field v. F & B Mfg. Co., No. 94 C 5379, 1996 U.S. Dist. LEXIS 6014, *16 (N.D. Ill. May 6, 

1996) (citing Neal v. Honeywell Inc., 33 F.3d 860, 864 (7th Cir. 1994), overruled in part on 

other grounds by Graham Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 

U.S. 409 (2005)).

In the present case, Plaintiff, an employee of Defendant OHP, had concerns about 

medical treatment provided by Dr. Corner. She discussed these concerns with the chief nursing 

officer, Ms. Habib, who “directed [Plaintiff] to gather evidence to support [her] concerns” by 

making notations of where the doctor was in the unit during the day and to get copies of his 

documentation for the day.” (Cabotage Aff., at ¶¶ 30, 34). Plaintiff observed and made notes 

about Dr. Corner’s work, made copies of his “progress notes,” gave her notes to Ms. Habib, and 

met with Ms. Artman, the Vice President of Human Resources. (Id. at ¶¶ 35-38). Plaintiff 

asserts that she believed Defendant OHP billed the government through Medicare and Medicaid 

for Dr. Corner’s services and that she believed the conduct she observed was illegal and 

fraudulent. (Id. at ¶¶ 29, 38). However, Plaintiff fails to allege that she investigated whether 

fraudulent claims were actually submitted to the government. She assumed that Defendant OHP 

billed for Dr. Corner’s services, and she took no action to substantiate this ultimately incorrect 

assumption. (Id. at ¶¶ 78-79). Plaintiff avers that her actions were focused on reporting “care 

that was being provided that was dangerous to the patients and substandard clinically and 

possibly illegal.” (Cabotage Dep. At 68, ¶ 15). Like the plaintiffs’ actions in Judd and 

Zahodnik, Plaintiff’s activity does not rise to the level of protected activity, and she has failed to 

show a genuine dispute as to the first element of her retaliation claim. 

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Second, an employee must prove that the employer knew about the employee’s protected 

activity. Marlar, 525 F.3d at 449. In Marlar, the plaintiff alleged that she “repeatedly objected 

to her superiors about the inaccurate medical records,” and “raised similar objections during an 

open forum where employees could express grievances or complaints.” Id. The court noted that 

those allegations alone likely did not suffice to show that plaintiff’s employer was on notice of 

plaintiff’s protected activity. Id. However, plaintiff took the additional action of writing a letter 

to the president and general manager stating that she had been placed on administrative leave for 

refusing to take part in “illegal activities.” Id. The court held that, in light of all of this conduct, 

the employer knew about the employee’s protected activity. Id. In Judd, the plaintiff attempted 

to establish this element by alleging that he repeatedly brought the billing issue to the attention of 

his supervisor, who was the CEO, and the Alcohol, Drug Addiction and Mental Health Services 

Board. Judd, 2006 U.S. Dist. LEXIS 63465, at *31. The court held that raising the billing issue 

was not protected activity, so the plaintiff’s communications with the CEO and the Board did not 

establish the second element. Id. 

In the present case, Plaintiff’s conduct closely parallels that of the plaintiff in Judd. Here, 

Plaintiff asserts that she had conversations with her supervisor, Ms. Habib, and Defendants’ Vice 

President of Human Resources, Ms. Artman. (Cabotage Aff., ¶¶ 30, 38). Plaintiff also 

anonymously called the Medicare Fraud Hotline and made a report, which Plaintiff asserts led 

the Ohio Department of Mental Health to conduct an on-site investigation the following day. 

(Id. at ¶¶ 44-45). Furthermore, Defendants’ Human Resources Director, Ms. Powers, was aware 

that Plaintiff had filed a complaint about a doctor with Ms. Habib. (Powers Dep., Mar. 13, 2012, 

at 7-9). Additionally, while Plaintiff alleged that she believed Dr. Corner’s conduct to be 

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fraudulent, Plaintiff did not allege that she characterized it as fraudulent or illegal in her 

communications with her superiors. The Defendants may have been aware of Plaintiff’s 

conduct, but not that it was protected activity. As noted above, Plaintiff has not alleged that she 

investigated whether fraudulent claims were actually submitted to the government. Her actions 

were focused on reporting “care that was being provided that was dangerous to the patients and 

substandard clinically and possibly illegal.” (Cabotage Dep. at 68, ¶ 15). Therefore, Plaintiff 

fails to allege facts that suggest that Defendants knew that Plaintiff’s activity was protected. 

Accordingly, Plaintiff has failed to establish the second element of her retaliation claim. 

Third, an employee must establish that the employer took adverse action against the 

employee at least in part because of the employee’s protected activity. Nguyen, 121 F. Supp. 2d 

at 649. Temporal proximity alone is insufficient to show causation. Balmer v. HCA, Inc., 423 

F.3d 606, 615 (6th Cir. 2005). In the present case, Defendants do not contest that an adverse 

action was taken against Plaintiff in that she was terminated. Plaintiff contends that causation is 

shown by notes referring to her as a whistleblower; the fact that Ms. Boyce was told that Plaintiff 

had made a complaint to the State, even though that complaint was anonymous; and inferences 

that administrators must have known about Plaintiff’s complaints because they did not question 

Plaintiff about them further. As to the temporal proximity, Plaintiff summarily asserts that she 

has presented evidence demonstrating that her termination was close in time to her conduct. 

Based on these facts, it is possible that a reasonable jury could find that the decision to terminate 

Plaintiff was based at least in part on her conduct. However, as previously stated, her conduct 

does not rise to the level of protected activity, so Plaintiff has failed to prove her prima facie case 

with respect to the causation element. 

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Even assuming Plaintiff can establish a prima facie case, Defendants have met their 

burden of showing that they would have made the same decision even absent any protected 

conduct. See Ladd, 552 F.3d at 502. In the present case, Defendants assert that their legitimate, 

nondiscriminatory reason for terminating Plaintiff was her violation of Defendants’ 

confidentiality policies by contacting a patient’s family from home without proper authorization. 

Defendants also assert that Plaintiff violated the policies by taking confidential documents home 

with her.

Regarding the fact that Plaintiff removed a confidential patient document as grounds for 

termination, Defendants did not learn of this until the commencement of this case; even so, 

Defendants still had a legitimate, non-discriminatory reason for terminating Plaintiff as she was 

in violation of their policies by contacting a patient’s family from home without a signed 

consent. Furthermore, even if a question remains whether Plaintiff received a signed consent 

form to contact the patient’s family, there is evidence that Defendants looked for the signed 

consent form in the patient’s file and the form was not there. (Boyce Dep. at 16). Therefore, 

Defendants have established a legitimate, non-discriminatory reason for terminating Plaintiff. 

Because Defendants set forth a legitimate, non-discriminatory reason for Plaintiff’s 

termination, the burden shifts back to Plaintiff to show that Defendants’ proffered reason is 

pretext and not the real reason for the adverse action. See Ladd, 552 F.3d at 502. To succeed in 

showing pretext, the plaintiff must present sufficient evidence from which a jury could 

“reasonably reject the defendant’s explanation” and infer that the defendant intentionally 

retaliated against the plaintiff. Balmer, 423 F.3d at 614. “A plaintiff will usually demonstrate 

pretext by showing that the employer’s stated reason for the adverse employment action either 

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(1) has no basis in fact, (2) was not the actual reason, or (3) is insufficient to explain the 

employer’s action.” White v. Baxter Healthcare Corp., 533 F.3d 381, 393 (6th Cir. 2008). 

In the present case, Plaintiff contends that Defendants’ reason was pretext because the 

punishment of termination was unreasonable for a single instance of alleged misconduct. 

Evidence shows that Plaintiff was terminated because she violated their policies by contacting a 

patient’s family from home without proper authorization. Defendants’ policies expressly 

prohibit the disclosure of patient information without proper authorization, and indicate that 

violation of confidentiality rules is a serious matter that may result in termination. Plaintiff does 

not dispute that she called a patient’s family member from her car, and she has presented no 

evidence that proper authorization was placed in the patient’s file. Furthermore, Defendants’ 

employment policies are facially legitimate and, as such, will not be “second-guessed” by this 

Court. See Brummett v. Lee Enters., 284 F.3d 742, 745 (7th Cir. 2002) (“we will not secondguess an employer’s policies that are facially legitimate”). Therefore, Plaintiff fails to show that 

the Defendants’ proffered reason was pretext. 

For these reasons, the Court concludes that Defendants have shown that there is no 

genuine dispute of material fact and that they are entitled to judgment as a matter of law as it 

relates to Plaintiff’s claim under the False Claims Act.

B. State Law Claims

A district court may decline to exercise supplemental jurisdiction over state law claims 

once it has dismissed all claims over which it possessed original jurisdiction. See Midwest 

Towing & Recovery, Inc. v. City of Lancaster, No. 2:09–cv–1142, 2011 U.S. Dist. LEXIS 9387, 

2011 WL 249467 (S.D. Ohio Jan. 26, 2011) (citing Saglioccolo v. Eagle Ins. Co., 112 F.3d 226, 

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233 (6th Cir. 1997)). The Sixth Circuit has further stated that generally where the federal claims 

are dismissed before trial, the state law claims should be dismissed as well. See Brandenburg v. 

Hous. Auth. of Irvine, 253 F.3d 891, 900 (6th Cir. 2001) (the “usual course is for the district 

court to dismiss the state-law claims without prejudice if all federal claims are disposed of on 

summary judgment). Having dismissed Plaintiff’s federal claim, the Court declines to exercise 

supplemental jurisdiction over the remaining state law claims asserted against Defendants, and 

those are dismissed as well.

IV. DISPOSITION

For the foregoing reasons, the Court GRANTS Defendants’ Motion for Summary 

Judgment (Doc. 24). The False Claims Act claim is dismissed with prejudice, and the state law 

claims are dismissed without prejudice.

The Clerk shall remove Document 24 from the Court’s pending motions list.

The Clerk shall remove this case from the Court’s pending cases list.

IT IS SO ORDERED. 

s/ George C. Smith 

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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