United States District Court, M.D. Florida, Orlando Division
ANTOON II United States District Judge.
Hernandez (Plaintiff) alleges that his former employers, Dr.
Vinicio Hernandez (Dr. Hernandez) and Sand Lake Cancer
Center, P.A. (Sand Lake) (collectively, Defendants),
retaliated against him in violation of the False Claims Act
(FCA), 31 U.S.C. § 3730(h), for reporting
Defendants' fraudulent Medicare billing practices to
federal authorities. Defendants filed a motion to dismiss
under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1),
(Doc. 19), and Plaintiff filed a response in opposition,
(Doc. 21). The motion is due to be granted in part and denied
without prejudice in part.
Hernandez is a hematologist and oncologist who founded Sand
Lake in 2009. (Am. Compl., Doc. 15, ¶¶ 3, 19). Sand
Lake is a full-service cancer treatment center providing
radiation services to treat all types of cancer in Orlando,
Florida. (Id. ¶ 3). Before opening Sand Lake,
Plaintiff, who is a "MS Medical Physicist" with
over 22 years of medical physics experience, (id.
¶ 7), performed consulting services for Dr. Hernandez as
he started the process of opening Sand Lake, (id ¶¶
12-16). In October 2010, Plaintiff became Defendants'
full-time employee as a medical physicist and supervisor of
the radiation center. (Id. ¶¶ 13-21).
Plaintiffs agreed upon annual salary was $225, 000 along with
an annual one-percent "radiation collection" bonus.
(Id.). Plaintiff worked as a Sand Lake employee
until he was terminated on June 10, 2016. (Id.
January 2016, Plaintiff discovered that Defendants were
engaging in fraudulent Medicare billing
practices. (Id. ¶¶ 39-42).
Specifically, Defendants were altering patients' medical
records and submitting inflated Medicare bills to the federal
government. (Id.). This fraudulent practice, which
dated back to February 2015, resulted in overcharges of 15%
on office visits where only a physician assistant-as opposed
to a physician-saw the patient, (Id. ¶¶
42, 45, 69). Plaintiff continued his investigations
throughout the next several months, (Id. ¶ 69).
January 2016-about the time Plaintiff discovered
Defendants' fraudulent conduct-Defendants began
conducting audio and video surveillance of several
"common areas" within the facility. (Id.
¶¶ 36-38). Defendants never sought or obtained
employees' consent to conduct the surveillance.
(Id. ¶ 38). The recording equipment, although
not placed in Plaintiff's office, was "strong
enough" to capture any conversations occurring in
Plaintiff's office, (Id. ¶ 38). Around the
same time, Dr. Hernandez and the office administrator, Asha
Jiawan, began "reviewing employee emails and desktops,
in real time, spying on what [employees] were doing."
(Id. ¶ 43).
least one Sand Lake employee confirmed seeing Jiawan looking
at [Plaintiff's] desktop in real time, reviewing what he
was doing-specifically around the time he discovered the
Medicare billing fraud." (Id.). "Sand Lake
and Dr. Hernandez knew about [Plaintiffs] . . . efforts to
stop violations of the [FCA] because: (1) employees reported
seeing that [Plaintiffs] computer was being monitored when
he was reviewing the records related to the Medicare fraud;
(2) Sand Lake and Dr. Hernandez were recording his audio
conversations; (3) Sand Lake and Dr. Hernandez were viewing
and intercepting [Plaintiff's] activities on his work
computer when he was reviewing the records that related to
the Medicare fraud; (4) representatives of Sand Lake,
including Dr. Sollacio, were asked directly by Dr. Hernandez
if [Plaintiff] was the False Claims Act whistleblower."
(Id. ¶ 44).
Plaintiff discovered Defendants' fraudulent billing
practices, Defendants began to retaliate against Plaintiff.
The following conduct occurred between February and June
2016: (1) Jiawan stated that Dr. Hernandez would not be
paying Plaintiff's annual bonuses, (Id. ¶
46); (2) Dr. Hernandez declined to pay Plaintiff the full
amount he was owed in unpaid bonuses, (Id.
¶¶ 53, 62); (3) Defendants decreased
Plaintiff's annual salary by $50, 000, (Id.
¶¶ 55-56); (4) Dr. Hernandez falsely claimed that
Plaintiff agreed that he would not receive a bonus for 2014,
(Id. ¶ 63); (5) Dr. Hernandez began requiring
Plaintiff to clock in and clock out, "treating him like
a minimum wage-earning employee, " and began harassing
Plaintiff for failing to comply, (Id. ¶¶
63-64); (6) Sand Lake did not allow Plaintiff to use a
"paid time off" day to take a vacation even though
Plaintiff still had unused "paid time off days available
to him, (Id.. ¶¶ 66, 68); (7) Dr.
Hernandez changed Plaintiffs employment from full time to
working only two days per week, reducing Plaintiff's
annual salary from $175, 000 to $70, 000, (Id.
¶ 70); (8) Defendants repeatedly asked Plaintiff
"if he had resigned or was going to resign, "
(Id. ¶ 73); and (9) Defendants terminated
Plaintiff, providing no reason, (Id. ¶74).
Defendants failed to pay Plaintiff's annual bonuses for
2013, 2014, 2015, and 2016. Id. ¶ 84).
March 2016, Plaintiff contacted a federal investigator
regarding Defendants' fraudulent practices, and he met
with the investigator several times. (Id. ¶
45). The Amended Complaint does not state whether the
government ever took enforcement action based on
filed the instant lawsuit against Defendants on October 18,
2016, alleging four causes of action: retaliation under the
FCA; breach of contract; failure to pay wages; and invasion
of privacy. (Id. ¶¶ 75-93). On January 13,
2017, Defendants filed the instant motion to dismiss and
Plaintiff filed a timely response in opposition.
"[a] pleading that states a claim for relief must
contain ... a short and plain statement of the claim showing
that the pleader is entitled to relief." Fed.R.Civ.P.
8(a)(2). "[D]etailed factual allegations" are not
required, but "[a] pleading that offers 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do.'"
Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). "To survive a [Rule 12(b)(6)] motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Id. (quoting
Twombly, 550 U.S. at 570). At the motion-to-dismiss
stage, a court must construe all plausible inferences derived
from the facts of the complaint in favor of the plaintiff.
Whitwam v. JetCard Plus, Inc., 34 F.Supp.3d 1257,
1259 (S.D. Fla. 2014).
argue in their motion to dismiss that (1) Plaintiff cannot
hold Dr. Hernandez personally liable because he fails to
pierce Sand Lake's corporate veil, (2) Plaintiff fails to
sufficiently allege that Defendants were aware of
Plaintiff's protected conduct before Defendants'
retaliation, and (3) the Court should not exercise
supplemental jurisdiction over the state law claims or
alternatively, Plaintiff's state law claims fail under
Rule 12(b)(6). Because the Court agrees that Plaintiff fails
to state a claim of retaliation under the FCA and that the
Court should not exercise supplemental jurisdiction over
Plaintiff's remaining state law claims, the Court does