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The U.S. Court of Appeals for the Third Circuit has ruled that plaintiffs must prove “but-for” causation in workplace retaliation lawsuits stemming from False Claims Act whistleblowing activity.

A three-judge Third Circuit panel consisting of Judges Thomas I. Vanaskie and Senior Judges D. Michael Fisher and Marjorie Rendell reached the decision in DiFiore v. CSL Behring, affirming a defense verdict.

The suit stems from plaintiff Marie DiFiore’s claims that she was forced to resign for complaining about pharmaceutical company CSL Behring’s off-label marketing of certain drugs. The defendant argued that DiFiore did not provide sufficient evidence to prove that the alleged retaliatory conduct met the definition of an “adverse action” under the FCA, and a jury ultimately found in favor of the company.

DiFiore argued that the district court applied the wrong causation standard for her FCA case by using the “but-for” standard instead of the “motivating factor” standard. She also argued that the court should not have dismissed her constructive discharge claim. Lastly, DiFiore claimed the court mischaracterized the adverse actions she experienced to the jury.

“The district court correctly applied Supreme Court case law when it instructed the jury using the ‘but-for’ causation standard for DiFiore’s FCA relation claim,” Fisher wrote in the court’s opinion, citing two U.S. Supreme Court cases: Gross v. FBL Financial Services, from 2009; and University of Texas Southwestern Medical Center v. Nassar, from 2013.

The Third Circuit also pointed to its own 2017 decision in Egan v. Delaware River Port Authority, which examined “but-for” causation in the context of Family and Medical Leave Act retaliation claims.

In Egan, according to Fisher, the plaintiff argued that the district court should have given a mixed motive instruction, requiring less than ”but-for” causation, because the FMLA regulation at issue barred employers from considering the use of FMLA leave as a ”negative factor” in employment decisions.

The Egan court agreed and lessened the causation standard in FMLA retaliation cases, distinguishing the FMLA’s “negative factor” language from the language in the Age Discrimination in Employment Act that prohibits employers from firing or refusing to hire a person “because of” their age. That “because of” language is what led the Gross court to uphold the higher “but-for” causation standard in ADEA retaliation cases.

Fisher said the ruling in Egan was instructive in DiFiore’s case.

“Unlike the language of the FMLA anti-retaliation regulation, the language of the FCA anti retaliation provision uses the same ’because of’ language that compelled the Supreme Court to require ‘but-for’ causation in Nassar and Gross,” Fisher said. “For this reason, the district court correctly instructed the jury that to find retaliation, it had to find that DiFiore’s protected conduct was the ‘but-for’ cause of the adverse employment action.”

The court rejected DiFiore’s reliance on its 2001 decision in Hutchins v. Wilentz, Goldman & Spitzer.

“DiFiore argues that this court’s decision in Hutchins controls and compels the application of the ‘motivating factor’ standard. This argument fails because the language DiFiore relies on in Hutchins was dictum,” Fisher said. “In Hutchins, we affirmed a grant of summary judgment in favor of an employer on an FCA retaliation claim because the employee failed to prove that he engaged in protected conduct and that he had put his employer on notice of possible FCA litigation. Because he failed to meet these elements, we never applied the causation standard, which we recited in dictum as the ‘motivating factor’ standard. That dicta does not compel us to apply the standard here.”

As for DiFiore’s constructive discharge claim, Fisher said it failed under both state and federal law because she failed to demonstrate she suffered from oppressive conditions at work, which DiFiore claimed included warning letters, being placed on an improvement plan, and deteriorating relationships with her supervisors.

“She may have been subjected to difficult or unpleasant working conditions, but these conditions fall well short of unbearable,” Fisher said. “Importantly, DiFiore did not sufficiently explore alternative solutions or means of improving her situation.”

In response to DiFiore’s claim on jury instruction—in which the district court told the jurors to focus on four specific incidents of alleged retaliation, while not mentioning others—could have confused the jury, Fisher said the court acted correctly.

“The district court correctly instructed the jury that its determination should take into account the totality of the circumstances,” Fisher said. “The court instructed that the four events occurred ‘among other things,’ and it described DiFiore’s allegation that her supervisors began to treat her in a hostile manner after she raised her concerns. These instructions do not misstate the law and do not mislead, prejudice, or confuse the jury.”

James A. Bell IV of Bell & Bell in Philadelphia represents DiFiore and did not respond to a request for comment.

Counsel for CSL Behring, David S. Fryman of Ballard Spahr in Philadelphia, sent a statement from the company in an email, which read: “We are pleased the 3rd Circuit Court of Appeals has upheld the dismissal of DiFiore v. CSL Behring. CSL Behring has a demonstrated track record of operating its business with the highest ethical standards and remains committed to providing life-saving therapies to patients in need.”