### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 2564

Q UINN R. H EATH

, Plaintiff

‐ Appellant

,

v.

I NDIANAPOLIS F IRE D EPARTMENT

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:15

‐ cv

‐ 425

‐ JMS

‐ MJD

— Jane E. Magnus

‐ Stinson

, Chief Judge

.

____________________

A RGUED F EBRUARY 21, 2018

— D ECIDED M AY 9, 2018

____________________

Before R IPPLE

, K ANNE

, and H AMILTON

, Circuit Judges

.

K ANNE

, Circuit Judge

. In January 2015, Quinn Heath ap

‐ plied to become an Indianapolis firefighter. Over the next four

months, he passed the Indianapolis Fire Department’s written

examination, oral interview, and Certified Physical Agility

Test. Quinn’s performance during the application process led

to his placement on a ranked list for hiring consideration. The

Department hired two academy classes in 2015 from that

ranked list, but Quinn was not selected for either class.2 No. 17

‐ 2564

Meanwhile, Quinn’s father—Rodney Heath—filed a qui

tam suit under the False Claims Act against the Indianapolis

Fire Department, alleging that the Department had made

false statements of material fact to the federal government in

order to receive federal grant funds. At the time, Rodney was

a backup investigator in the Department’s arson unit. The

same day that Quinn found out he had not been selected for

the second academy class, the Department’s Deputy Chief

told several Department employees they needed to be inter

‐

viewed by the U.S. Department of Homeland Security in con

‐

nection with Rodney’s suit.

Thereafter, Quinn joined his father’s suit, alleging that the

Department retaliated against him for his father’s complaint,

in violation of the False Claims Act. Quinn’s retaliation claim

alleges that he was not hired as an Indianapolis firefighter be

‐

cause of his father’s suit.

The district court granted summary judgment to the Indi

‐ anapolis Fire Department on Quinn’s retaliation claim. Quinn

now appeals that decision.

We review the district court’s grant of summary judgment

de novo

, viewing the record in the light most favorable to

Quinn. Austin v. Walgreen Co.

, 885 F.3d 1085, 1087 (7th Cir.

2018). We may affirm summary judgment on any ground sup

‐ ported by the record as long as the issue was adequately

raised below and the nonmoving party had an opportunity to

contest it. See West Side Salvage, Inc. v. RSUI Indem. Co.

, 878

F.3d 219, 222 (7th Cir. 2017). For the reasons that follow, we

affirm.No. 17

‐ 2564 3

I. A NALYSIS

The False Claims Act protects whistleblowers from retali

‐

ation, providing that “[a]ny employee

... shall be entitled to

all relief necessary to make that employee

... whole, if that

employee

... is discharged, demoted, suspended, threatened,

harassed, or

... discriminated against in the terms and condi

‐

tion of employment because of lawful acts done by the em

‐ ployee

... or associated others” in furtherance of a False

Claims Act action. 31 U.S.C. § 3730(h)(1) (2010); see also

§ 3730(h)(2) (describing relief under (h)(1)).

The district court’s dismissal of Quinn’s claim turned on

its conclusion that the False Claims Act’s anti

‐ retaliation pro

‐

visions do not cover job applicants or prospective employees.

This court has not yet addressed that issue, and we decline to

do so now. Even assuming that § 3730(h)’s definition of “em

‐ ployee” is broad enough to encompass job applicants or pro

‐ spective employees, the Indianapolis Fire Department would

still be entitled to summary judgment. Section 3730(h)(1) re

‐ quires that Quinn show he was retaliated against because of his

father’s protected activity, and he cannot do so.

Recent authority raises a question about what causation

standard Quinn must meet to show that he was retaliated

against because of his father’s protected activity. In Fanslow v.

Chicago Manufacturing Center, Inc.

, relying in part on Title VII

principles, we noted that False Claims Act complainants can

establish that they were retaliated against because of pro

‐

tected activity by demonstrating that the retaliation was mo

‐

tivated “at least in part” by the protected activity. 384 F.3d 469,

485 (7th Cir. 2004). Nearly ten years post

‐ Fanslow

, the Su

‐

preme Court held that Title VII retaliation claims require4 No. 17

‐ 2564

but

‐ for causation, rather than the lesser mixed

‐ motive stand

‐

ard of causation we described in Fanslow

. Univ. of Tex. Sw. Med.

Ctr. v. Nassar

, 570 U.S. 338, 360 (2013). We have not yet revis

‐

ited Fanslow to extend Nassar’s Title VII holding to

§ 3730(h)(1), though the similarity of the two provisions

might give us reason to do so in a future case. See United States

ex rel. King v. Solvay Pharm., Inc.

, 871 F.3d 318, 333 (5th Cir.

2017) (noting that the False Claims Act requires but

‐ for cau

‐

sation). But the causation standard makes no difference here.

Under any standard, there is no evidence—even when con

‐ struing the facts in Quinn’s favor—from which a jury could

conclude that the Department did not hire Quinn because of

his father’s qui tam suit.

Applicants to the Indianapolis Fire Department are placed

on a ranked hiring list according to their scores on various

merit

‐ based metrics. Under a local ordinance governing the

Department’s hiring, eighty percent of an academy class is to

be filled in rank order, starting with the top candidate on the

list. Then, the fire chief can exercise his discretion to fill the

remaining twenty percent of the class. The Department has

also established selection criteria that guide the fire chief’s dis

‐ cretionary picks, preferencing applicants with two or more of

the following “markers”: “racial minority, female gender, col

‐ lege degree, fire training or experience, and legacy” (meaning

a family member is a current or former member of the Depart

‐

ment). (Appellant’s Br. at 3.) Applicants receive the college de

‐

gree marker only if they earned a degree; they do not receive

the marker if they have simply accumulated college credit

without earning a degree.No. 17

‐ 2564 5

To survive summary judgment, Quinn needed to demon

‐

strate either (1) that he should have been an automatic selec

‐

tion for an academy class and he was not, or (2) that the chief

exhausted two

‐ marker applicants for discretionary selections

and still did not select Quinn. Only then could a reasonable

trier of fact have any evidence from which to conclude that

Rodney’s qui tam suit motivated, at least in part, the Depart

‐

ment’s decision not to hire Quinn.

At best, Quinn was ranked 64th on the hiring list. (Appel

‐

lant’s Br. at 5, 30 (citing R. 84

‐ 4).) And he had one marker—

legacy—because of his father’s employment at the Depart

‐

ment. Though Quinn had 66 hours of college credit, he never

earned a degree, and thus did not receive that marker. Quinn

did not receive an automatic or discretionary selection to ei

‐

ther of the two academy classes chosen in 2015.

The fire chief selected 30 applicants from the list for the

first academy class. The first 24 were hired in rank order. At

64th, Quinn did not receive an automatic selection. Then, 6

spots remained for the chief’s discretionary picks. All 6 spots

were filled by applicants with two or more markers, and 3 of

those spots were filled by applicants ranking ahead of Quinn.

Given that 27 applicants ranked ahead of Quinn were se

‐

lected for the first class, Quinn’s ranking improved to, at best,

37th for the second class.

The chief planned to fill the second academy class with 40

applicants from the list. The chief filled the first 29 spots in the

class in rank order. He then filled the remaining 11 spots with

discretionary selections, all of which had two or more mark

‐

ers. More than 10 two

‐ marker applicants still remained on the

list who were not selected for an academy class. It appears an6 No. 17

‐ 2564

automatic selection withdrew from the hiring process after

the selections were finalized, and the chief did not replace her,

leaving the second academy class at 39 recruits.

If the chief was following the Department’s 80/20 rule

based on a 40

‐ recruit class, he should have picked 32 appli

‐

cants as automatic selections. But even if the chief had picked

32 automatic selections, Quinn would not have been an auto

‐

matic selection ranked at 37th. And selecting 8, rather than 11,

discretionary picks would have similarly had no impact on

Quinn’s chances, particularly because a large pool of

two

‐ marker applicants still remained after the chief filled both

academy classes.

In sum, Quinn was ranked, at best, five spots too low to

receive an automatic selection to an academy class. And every

discretionary pick in both classes had more markers than

Quinn, consistent with the Department’s policy for discretion

‐

ary selections. Thus, there is no evidence from which a rea

‐

sonable jury could conclude that Rodney’s suit was even a

motivating factor in the decision not to hire Quinn.

II. C ONCLUSION

Quinn’s retaliation claim against the Indianapolis Fire De

‐

partment raises a complicated question about the scope of the

False Claims Act’s anti

‐ retaliation provisions. We need not re

‐

solve that question in this case, however. Even assuming that

the meaning of “employee” under § 3730(h) is broad enough

to encompass job applicants or prospective employees, there

are no facts from which a jury could conclude that Quinn was

retaliated against because of his father’s qui tam suit.

The district court’s judgment in favor of the Indianapolis

Fire Department on Quinn’s retaliation claim is AFFIRMED.