Ascolese v. Shoemaker Construction Co, No. 21-2899 (3d Cir. 2022)Annotate this Case
Ascolese, a compliance officer, brought a False Claims Act (FCA) retaliation claim against his former employer, MBP, in connection with a qui tam action involving a federally-funded public housing construction project for the Philadelphia Housing Authority (PHA). In 2009–2010, Congress amended the FCA, 31 U.S.C. 3729(a)(1)(A), to expand the scope of protected conduct shielded from retaliation and the type of notice an employer must have of the protected conduct. The new standard is whether Ascolese showed he engaged in protected conduct in furtherance of an FCA action or other efforts to stop or more violations of the FCA and that he was discriminated against because of his protected conduct. The court believed that the pre-amendment standard was required by the Third Circuit, and concluded that Ascolese failed to show MBP was on notice that he was attempting to stop MBP from violating the FCA and not merely doing his job.
The Third Circuit vacated and remanded. The right question is whether Ascolese pled facts that plausibly showed MBP was on notice he tried to stop MBP’s alleged FCA violation. Ascolese sufficiently pled that he engaged in protected conduct when he went outside of his chain of command to report his concerns of fraudulent work to the PHA.