Neighorn v. Quest Health Care (870 F. Supp. 2d 1069, 2012)

ORDER

CLARKE, United States Magistrate Judge.

This matter comes before the court on defendants’ motion (# 40) for summary judgment. For the reasons stated below, the motion is granted in part and denied in part.

BACKGROUND

Plaintiff John Neighorn (“Neighorn”) filed this action on September 30, 2011, against defendants Quest Health Care (“Quest”) and Rotech Healthcare, Inc. (“Rotech”) (collectively, “Rotech”) alleging claims for retaliatory discharge in violation of the False Claims Act (“FCA”), 31 U.S.C. § 3729, et seq., and Oregon’s whistleblower statute ORS § 659A.199; violation of ORS § 652.750 for failing to provide him a copy of his personnel file; and a claim for common law wrongful discharge.

I. Rotech

As its primary business, Rotech provides respiratory services, including the delivery of oxygen to patients’ homes and the set up and maintenance of related equipment, as well as products and services for sleep apnea, such as CPAP and BiPAP devices. (Am. Compl., Dckt. # 72, ¶ 3; Defs’ Corrected Mem. Supp. Mot. Summ. J. (“Defs’ Corr. Mem.”), Dckt. # 51, pp. 2). Rotech provides these services to both private patients and patients whose care is paid for by the Department of Veterans Affairs (“VA”) and the Centers for Medicare & Medicaid Services (“CMS”), an agency of the Department of Health and Human Services (“DHHS”). (Defs’ Corr. Mem., pp. 2). Rotech delivers its services through approximately 3,500 employees operating out of 450 locations in 48 states, including its office in Central Point, Oregon. (Am. Compl., ¶ 3; Pi’s Mem. Opp’n Defs’ Mot. Summ. J., Dckt. # 53, pp. 3).

A. The May 2008 Corporate Integrity Agreement

On April 6, 2004, a qui tarn action was filed against Rotech in the United States District Court for the Eastern District of Texas, Texarkana Division, United States of America ex rel. Sheila Bell-Messier v. Ro-Tech Healthcare, Inc., et al., Civil Action No. 5:04-cv-0075. (Deck Stephani L. Ayers (“Ayers Deck”), Ex. 1, Dckt. # 54-7, pp. 2, & Ex. 2, Dckt. # 54-8). The Complaint alleged Rotech committed multiple ongoing violations of the FCA between February 22, 1996, and April 30, 2003, by fraudulently billing the government for durable medical equipment (“DME”) including respiratory devices; and further that Rotech fraudulently concealed these billing practices from the government in violation of a Corporate Integrity Agreement (“CIA”) entered into as the result of a 2002 settlement with the government for other compliance issues. (Id., Ex. 1, Dckt. # 54-7, pp. 2, & Ex. 2, Dckt. # 54-8, pp. 6-7). In particular, the Complaint alleged Rotech failed to follow “[t]he proper procedures necessary to receive compensation for DME from Medicare,” including, in relevant part, the failure to obtain and retain delivery tickets signed by the patient evidencing delivery and receipt of the DME. (Id., Ex. 2, Dckt. # 54-8, pp. 4-5).

On May 19, 2008, Rotech, without admitting any wrongdoing, entered into a settlement agreement with the government regarding the April 2004 qui tarn action and contemporaneously entered into another CIA with the Office of the Inspector General (“OIG”) of the United States Department of Health and Human Services (“DHHS”). (Ayers Deck, Ex. 1, Dckt. # 54-7, pp. 2-3). The CIA requires that Rotech “promote compliance with the statutes, regulations, and written directives of Medicare, Medicaid, and all other Federal health care programs,” (id, pp. 3), through compliance management and oversight, written standards, training and education, review procedures, a disclosure program, screening and removal of ineligible persons, and reporting, (id, pp. 4-18).

As part of compliance management and oversight, the CIA requires that Rotech “continue to develop, implement and distribute a written Code of Conduct” stating Rotech’s commitment to non-retaliation and its requirement that all owners, officers, directors, and employees (“Covered Persons”) comply with all federal health care program requirements and Rotech policies and procedures, and report all “suspected violations” to its Compliance department. (I'd, pp. 3, 6-7). The CIA further requires that Rotech “continue to maintain and implement” written policies and procedures addressing, in relevant part, all applicable federal health care program requirements governing coverage and reimbursement of oxygen and the proper documentation necessary for the submission and reimbursement of claims, as well as the expectation that all Covered Persons comply with Rotech’s Code of Conduct, policies, procedures, and the CIA itself. (I'd, pp. 8).

As part of training and education, the CIA requires that Rotech describe its compliance program and provide all covered persons involved in billing, coding and claims submission, or the preparation or completion of documentation to support claims for reimbursement with annual training on “the federal health care program requirements governing coverage and reimbursement of oxygen, the proper completion of documentation necessary to support the reimbursement of claims; the personal obligation of each individual involved in the claims submission process to ensure that such claims are accurate; ... [and] examples of proper and . improper claims submission practices.” (I'd, pp. 4, 9-10). The CIA requires that Rotech retain all documents and records relating to reimbursement from Federal health care programs and compliance with the CIA for at least six years. (Id, pp. 25).

As part of review procedures, the CIA requires that Rotech retain an independent review organization (“IRO”) to, among other things, conduct annual claims review of 50 paid claims, and to repay any overpayment identified as a part of that review. (Id, pp. 11-12). Overpayment is defined as “the amount of money Rotech has received in excess of the amount due and payable under any Federal health care program requirements.” (Id, pp. 16). The definitions and procedures for the Claims Review process are documented in Appendix B of the CIA. (Id, pp. 38-43). Appendix B provides, at Section A, subsection 5(a), provides that “any Paid Claim for which Rotech cannot produce documentation sufficient to support the Paid Claim shall be considered an error and the total reimbursement received by Rotech for such Paid Claim shall be deemed an Overpayment.” (Id, pp. 40).

As a part of reporting, the CIA requires Rotech to notify OIG in writing within 30 days of identifying any reportable event. (Id at 18). “Reportable event” is defined to include both isolated and recurring instances of substantial overpayment as well as “a matter that a reasonable person would consider a probable violation of criminal, civil or administrative laws applicable to any Federal health care program for which penalties or exclusion may be authorized.” (Id, pp. 17).

The CIA provides certain stipulated monetary penalties in the event that Rotech fails to comply with its obligations. (Id, pp. 26-27). The CIA further provides that a failure by Rotech to report a Reportable Event, take corrective action, and make the appropriate refunds, or repeated or flagrant violation of its obligations under the CIA, is a material breach of the CIA and “constitutes an independent basis for Rotech’s exclusion from participation in the Federal health care programs.” (Id., pp. 28-29). In the event of a material breach, the CIA further provides that Rotech shall have 30 days in which to demonstrate that it is either in compliance with its obligations, that the material breach has been cured, or, if the breach cannot be cured within 30 days, that Rotech has taken action to cure, is diligently pursuing the cure, and has provided a reasonable timetable for curing the breach. (Id., pp. 29).

B. Rotech’s Compliance Department

Rotech’s Compliance Department is responsible for conducting annual regulatory and compliance training related to Rotech policies and procedures, as well as federal and state laws and regulations, for all employees. (Decl. Robin Menchen Supp. Defs’ Mot. Summ. J. (“Menchen Deck”), Dckt. # 42, ¶ 5). Training is administered by area managers and LCMs through orientation programs and by the Compliance Department through individualized computerized training modules targeted to the individual employee’s position. (Id.; Thelen Deck, Ex. 3, Deposition of Robin Lynn Menchen (“Menchen Dep.”), Dckt. # 44-2, pp. 18-19). The Compliance Department monitors and verifies that employees complete the online training. (Thelen Deck, Ex. 4, Deposition of Jack McKenna (“McKenna Dep.”), Dckt. # 44-2, pp. 37).

C. Rotech’s Code of Conduct

Rotech’s Code of Conduct requires that all “owners, directors, officers, employees, contractors, subcontractors, and temporary employees shall comply with Rotech’s Code of Conduct, all policies and procedures and Rotech’s Corporate Integrity Agreement with the Office of the Inspector General,” as well as Rotech’s Employee Handbook and periodically distributed memoranda and policy statements. (Deck Christine E. Thelen Supp. Mot. Summ. J. (“Thelen Deck”), Ex. 11, Dckt. # 44-2, pp. 84, 88-89). Employees are required to certify in writing that they have received, read, and understand this policy. (Id., pp. 88). The Code of Conduct explicitly states that failure to comply with its provisions may result in serious consequences to the employee including dismissal, criminal charges, and civil penalties. (Id., pp. 88, 91). The Code of Conduct requires mandatory disclosure of known or suspected violations of “federal, state or local law or regulations or this Code of Conduct,” and provides that “[fjailure to report unlawful or unethical conduct is itself a violation of this Policy Statement and may lead to disciplinary action, up to and including termination of employment.” (Id., pp. 90-91). The Code of Conduct emphasizes that retaliation against an employee who reports, in good faith, actual or potential violations is prohibited. (Id., pp. 88-89, 91).

D.Rotech’s Proof of Delivery Policy

Rotech ensures that the equipment and services it bills for are actually provided to the patient by documenting delivery according to its Proof of Delivery policy. (Thelen Deck, Ex. 13, Dckt. #44-2, pp. 96-97). The Proof of Delivery policy requires that the patient or their designee must sign and date a delivery ticket for all deliveries made by Rotech employees. (Id.). No signature is required for equipment delivered via common carrier, freight carrier, or drop shipment from the manufacturer. (Id.; Menchen Dep., Dckt. # 44-2, pp. 16-17). The Proof of Delivery-policy provides that “[n]o payer will be billed without proof of delivery/shipment” and requires that the original signed delivery ticket be forwarded to the Billing Center and a copy be retained in the patient’s location file. (Thelen Deck, Ex. 13, Dckt. #44-2, pp. 97). Roteeh’s Proof of Delivery policy does not directly correlate to the billing requirements of its customers. (Menchen Dep., Dckt. # 44-2, pp. 17). That is, although Rotech’s Proof of Delivery policy requires a patient signature for all deliveries made by a Rotech employee, this does not mean that a patient signature is required for Rotech to bill the payer; instead, the payer’s billing requirements are established by the terms of the contract between Rotech and the payer. (Id.).

E. Rotech’s contract with the United States Department of Veterans Affairs

Rotech’s contract with the United States’ Department of Veterans Affairs (“VA”) requires that Rotech be nationally accredited by and meet the standards set by the Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”). (Menchen Deck, ¶¶ 9-10 & Ex. D, Dckt. #42-2, pp. 47). Accordingly, Rotech is required to “educate, evaluate, and document employee education” on an ongoing basis to ensure that all its employees involved in the delivery and recovery of DME meet JCAHO standards. (Id., Ex. D, Dckt. # 42-2, pp. 42). Only employees who “have been properly trained and who have demonstrated competency may perform equipment deliveries, recoveries, and patient education on the equipment.” (Id., pp. 43). Rotech employees are required to perform safety assessments and to report to the VA any hazards in the home that preclude the installation or require the removal of oxygen and related equipment in the patient’s home. (Id., pp. 41). Rotech employees may not change or alter a VA patient’s oxygen prescription or equipment requirements without a new prescription from the patient’s VA physician. (Id., pp. 44). Rotech is required to “provide staff with documented competency training to deliver prescribed supplies/cylinders/liquid oxygen (LOX),” (id., pp. 45); to store clean and contaminated equipment in clearly demarcated separate storage areas in both the warehouse and vehicles, (id., 46); and to use only vehicles that are licensed and conform with the relevant state, county, and city standards in the performance of the contract, (id., 48).

The VA contract requires Rotech to submit monthly billing reports, consisting of an invoice for each patient that includes the contract number, patient name, last four digits of the patient’s social security number, the period of service, and an itemized list of equipment in place and supplies used. (Id., pp. 38, 56, 58). Rotech is required to maintain a folder for each patient containing a complete record of all services provided the patient, and to make these folders available to the VA during quarterly unscheduled monitoring visits. (Id., 44-45, 56). Patient folders must be maintained in compliance with the Privacy Act and Health Insurance Portability and Accountability Act (“HIPAA”). (Id., pp. 45).

The contract specifies that Rotech may not leave deliveries unattended at a patient’s home. (Id., pp. 40). In the event a patient “chronically fails to meet appointments,” Rotech is required to contact the VA with evidence of “valid and documented attempts to contact” the patient, at which time the VA will assume the responsibility for implementing a “corrective action plan” with the patient. (Id.).

II. Neighorn

Rotech hired Neighorn as a Patient Service Technician (“PST”) for its Central Point office on April 26, 2006. (Decl. Catherine Long Supp. Defs’ Mot. Summ. J. (“Long Decl.”), Dckt. #41, ¶3). The duties of a PST include delivering and setting up oxygen tanks and equipment related to providing oxygen in patient homes, educating patients on the safe use of the equipment, maintaining delivered equipment, reporting equipment hazards and product incidents, and completing related paperwork. (Thelen Decl., Ex. 10, Dckt. # 44-2, pp. 81-83). In July of 2009, Neighorn signed a PST job description dated as “revised January 1, 2008,” documenting these duties. (Id., Ex. 1, Deposition of John Neighorn (“Neighorn Dep.”), Dckt. # 44-1, pp. 100-101). At the relevant time, the Central Point office also employed PST Harold Stahl, PST Clyde Gore, Customer Service Representative (“CSR”) Catherine Windsor, and Respiratory Therapist (“RT”) Lacy Lydon, all of whom were supervised by the Location Manager (“LCM”). (Pi’s Mem. Opp’n, pp. 3-4). In March of 2007, Susan Coghill was promoted to LCM for Rotech’s Central Point office. (Decl. Amanda Mauney Supp. Defs’ Mot. Summ. J. (“Mauney Decl.”), Ex. A, Dckt. # 43-1, pp. 4).

A.Neighorn received Rotech’s Code of Conduct

Neighorn was given Rotech’s employee handbook and the Code of Conduct in April of 2006 and, although he did not read these materials at that time, per his manager’s instruction he signed a certificate acknowledging that failure to comply with Rotech’s policies could result in diseiplinary action up to and including dismissal. (Neighorn Dep., Dckt. #44-1, pp. 2-4; Thelen Decl., Ex. 12, Dckt. # 44-2, pp. 95). Neighorn did eventually review Roteeh’s Code of Conduct. (Neighorn Dep., Dckt. #44-1, pp. 4-5). Neighorn understood compliance with the Code of Conduct to be a condition of his employment. (Neighorn Dep., Dckt. # 44-1, pp. 5).

B. Neighorn received compliance training

Rotech’s records show that Neighorn was assigned General Compliance Training and Specialized Compliance Training modules in both 2008 and 2009 through Rotech’s online training system. (Menchen Decl., ¶ 6 & Ex. A, Dckt. # 42-1, pp. 1). Neighorn’s progress is shown as “completed” in 2008 and “in progress” in 2009 for the Specialized Compliance Training module, and “in progress” in 2008 and “completed” in 2009 for the General Compliance Training. (Id.). The Specialized Compliance Training for both 2008 and 2009 addressed, among other things, the avenues available for contacting the Compliance Department, the FCA’s qui tam provision and the key elements of an FCA claim, and the importance of completing delivery tickets, including obtaining the patient’s signature and date. (Menchen Decl., ¶¶ 7-8 & Exs. B & C, Dckt. # 42-1, pp. 3-6, 9-10,14-15, 21-23).

C. Rotech’s Proof of Delivery policy & the “porching” practice

Neighorn understood compliance with the Proof of Delivery policy to be a requirement of his employment. (Neighorn Dep., Dckt. # 44-1, pp. 6). However, Neighorn asserts that Rotech managers Dave Case and Dave Schatler advised him that the Proof of Delivery policy did not apply in rural areas such as those serviced by Rotech’s Central Point office. (Pi’s Mem. Opp’n Mot. Summ. J., Dckt. # 53, pp. 9; Decl. Clyde Gore (“Gore.. Decl.”), Dckt. # 62, pp. 2; Ayers Decl., Ex. C, Neighorn Dep., Dckt. # 54-3, pp. 5). Rather, if a PST servicing a patient in a rural area was unable to make contact with the patient, the PST was to document this and either leave the equipment where instructed by the patient or leave a note for the patient. (Neighorn Dep., Dckt. # 54-3, pp. 5). Neither Mr. Case nor Mr. Shatner instructed Neighorn that he could fabricate a patient’s signature, and no member of Rotech’s corporate management told Neighorn he was exempt from the Proof of Delivery policy. (Neighorn Dep., Dckt. # 44-1, pp. 7). To the best of his knowledge, the oxygen and equipment Neighorn delivered via this “porching” practice was always actually received by the patient for whom it was intended. (Id., pp. 29).

PST Stahl similarly understood that Rotech’s Proof of Delivery policy was not strictly enforced in rural areas. (Ayers Deck, Ex. D, Deposition of Harold William Stahl (“Stahl Deck”), Dckt. # 54-4, pp. 6). Stahl worked for Rotech as a PST from 2002 until 2010. (Id., pp. 3). During that time, Stahl’s experience was that Rotech’s corporate delivery policy was not consistent with either the reality of the circumstances faced by its delivery drivers or the practice of its delivery drivers to leave the equipment at the patient’s home and notate “left at door” on the delivery ticket. (Id.). One particular patient (“patient R.N.”) went so far as to specifically authorize Stahl to sign on his behalf. (Id., pp. 5). Like Neighorn, the oxygen and equipment Stahl delivered via this “porching” practice was, to his knowledge, always actually received by the patient for whom it was intended. (Id., pp. 7). Coghill held daily morning meetings during the last two years of Stahl’s employment with Rotech. (Id., pp. 4). Stahl frequently brought the subject of “porching” up during these meetings. (Id.).

•CSR Windsor was also present during the daily morning meetings. (Ayers Deck, Ex. F, Deposition of Catherine Windsor (“Windsor Dep.”), Dckt. # 54-6, pp. 16-17, 25-27). She overheard the PSTs regularly discussing the “porching” practice, but did not observe Coghill ever reprimanding the PSTs for this practice or informing them that this practice was a violation of Rotech policy. (Id.). Windsor knew the “porching” practice was a violation of Rotech policy. (Id., pp. 17). However, Coghill told Windsor not disclose this practice to anyone and Windsor, fearing that Coghill would fire her if she did not obey, complied with that instruction. (Id., pp. 17-18). Windsor recognized “porching” as an obvious violation of Rotech policy and believed that Coghill ordered her not to disclose it in order to avoid the office to getting in trouble with Rotech’s corporate office. (Id., pp. 19).

D. Delivery tickets and billing

Neighorn knew that his delivery tickets were reviewed first by Windsor and then by Coghill before being submitted to the billing department, but was not otherwise familiar with the billing process. (Neighorn Dep., Dckt. # 44-1, pp. 30-31). He was aware that some delivery tickets submitted to billing were being returned and, in some instances but not all, was instructed to obtain patient signatures for delivery tickets which had been submitted with a blank patient signature block. (Id., pp. 14-15). Coghill told Neighorn that if he “scribbled” where he left the equipment in the patient signature block of the delivery ticket instead of printing that notation, the delivery ticket was less likely to be rejected by billing. (Id.). Similarly, Coghill instructed PST Stahl to do “whatever it takes” to make a delivery if a patient was not home. (Stahl Dep., Dckt. # 54-4, pp. 5).

In Neighorn’s experience, typically either the patient or their spouse would leave a note explaining why they were not home and requesting that he leave the equipment. (Supplemental Decl. Christine E. Thelen Supp. Defs’ Mot. Summ. J. (“Suppl. Thelen Deck”), Ex. 36, Neighorn Dep., Dckt. # 65-2, pp. 2). Per Coghill’s instructions, Neighorn would leave the oxygen and related equipment at the patient’s home and would “scribble” a note in the patient signature block. (Neighorn Dep., Dckt. # 44-1, pp. 10-11, 13-14). He included the name of the patient or the patient’s spouse and noted any specific instructions from the patient or spouse about where the equipment was to be left, such as “left on porch” or something similar. (Neighorn Dep., Dckt. # 65-2, pp. 2; Neighorn Dep., Dckt. #44-1, pp. 13-14, 19, 25-26). Until the time of his termination, neither Coghill nor any other Rotech management employee informed Neighorn that this practice constituted a violation of Rotech policy. (Neighorn Dep., Dckt. # 54-3, pp. 6). Likewise, although Stahl was aware of Rotech’s policy requiring patient signatures, he did not really understand the “porching” practice to be a violation of Rotech policy. (Stahl Dep., Dckt. # 54-4, pp. 7).

Neighorn did not believe that scribbling the “left on porch” notation constituted an attempt to forge the patient’s signature, nor did he make the notation for the purpose of creating the appearance that the patient had actually signed the delivery ticket. (Neighorn Dep., Dckt. # 44-1, pp. 10, 26; Thelen Deck, Ex. 22, Dckt. # 44-4, pp. 3-4). Neither Neighorn nor Stahl understood Coghill’s instructions to be a general order to forge patient signatures. (Stahl Dep., Dckt. # 54-4, pp. 5-6; Neighorn Dep., Dckt. #44-1, pp. 14). Once, sometime between November 2009 and March 2010, Coghill approached Neighorn and asked him for his opinion on the appearance of a signature. (Neighorn Dep., Dckt. #44-1, pp. 55-57). Neighorn observed that the signature was on a piece of “onion” or tracing paper and that Coghill was carrying a patient chart, and therefore deduced that she had forged the patient’s signature; however, he did not witness Coghill actually tracing a signature. (Id., pp. 56-57). He was so shocked by the incident that he did not note the signed name or the name of the patient file Cog-hill was carrying. (Id., pp. 57). On February 12, 2012, the one occasion when Cog-hill specifically instructed Stahl to forge a patient’s signature (“patient R.S.”) on a delivery ticket, he declined to do so. (Stahl Dep., Dckt. #54-4, pp. 5-6; Mauney Deck, Ex. A, Dckt. #43-1, pp. 7).

III. Neighorn’s Internal Compliance Complaint & Rotech’s Investigation

On March 2, 2010, Neighorn submitted a written complaint to Rotech Area Manager Nancy Fannin, Human Resources (“HR”) Representative Melissa Daggs, and Rotech’s Vice President of HR, Jack McKenna. (Thelen Deck, Ex. 15, Dckt. #44-2, pp. 102-117; & Ex. 29, Dckt. #44-5, pp. 4-11). In relevant part, Neighorn reported that (1) when PST Gore was out on medical leave, Coghill advised him, Stahl, and Windsor not to write any progress notes or otherwise document the files of VA patients because the VA had concerns that Roteeh lacked sufficient coverage to service its patients and might use Gore’s absence as a reason for terminating its contract; (2) on February 24, 2010, Coghill instructed him to leave multiple oxygen tanks in a patient’s driveway and leave without having the patient sign the delivery ticket and threatened to fire him when he refused; (3) Coghill subsequently attempted unsuccessfully to issue him a disciplinary letter in retaliation for his refusal to comply with her request and then refused to provide him with a copy of his personnel file when he requested it; (4) Coghill regularly falsified the location’s inventory records; (5) Coghill had forged patient signatures on medical records and company forms; (6) Coghill regularly falsified her reports of “ride alongs” with the location’s PSTs; (7) Coghill regularly required the Central Point employees to sign acknowledgments of Roteeh policies without providing them with a copy of those policies to keep for their records; and (8) when Neighorn refused to provide patients with services or products they requested due to JCAHO, safety, prescription, or VA policy violations and the patients complained about his service, Coghill simply assigned other Central Point employees to provide the services and products requested by the patient and ignored the relevant policy and standards violations. (Thelen Deck, Ex. 15, Dckt. #44-2, pp. 106-112, 114,116).

Neighorn’s complaint was forwarded to Catherine Long, Rotech’s Western Division HR Manager. On March 3, 2010, Long forwarded Neighorn’s complaint to Wayne Bradberry, Rotech’s Director of Compliance. (Long Deck, ¶ 4 & Ex. B, Dckt. # 41, pp. 5). That same day, Brad-berry created a confidential disclosure log, case 6733, describing Neighorn’s complaint as “Altering/Falsifying Patient Records. LCM is forging patient signatures on documents and company paperwork. LCM instructs PST to deliver cylinders without obtain [sic] patient signatures.” (Ayers Deck, Ex. 3, Attachment 1 (“Pi’s Ex. 3-1”), Dckt. # 56-1). On March 4 and 5, 2010, Long conducted a telephone interview of Neighorn regarding his complaint, during which Neighorn repeated, in relevant part, his claims that (1) Coghill falsified inventory reports by under-reporting the stock held at the Central Point office; (2) he had seen Coghill sign a delivery ticket and heard from Windsor that she had observed the same, but could not provide patient names; and (3) Coghill allowed VA patients to receive oxygen and equipment in violation of JCAHO, safety, prescription, or VA policy violations, and assigned other Roteeh employees to service the patients when Neighorn refused to comply with the patients’ requests and the patients complained about Neighorn’s service. (Long Deck, ¶ 3 & Ex. A, Dckt. # 41, pp. 3^4).

In keeping with Rotech’s Compliance Investigation Process, (Thelen Deck, Ex. 16, Dckt. #44-2, pp. 188-122), Roteeh Compliance Specialists Tamara “Teddi” Thompson and Amanda Mooney (“the Compliance investigators”) were assigned to investigate Neighorn’s complaint. (Thelen Deck, Ex. 6, Deposition of Tamara Tait (“Tait Dep.”), Dckt. # 44-2, pp. 52; Mauney Deck, Dckt. # 43, ¶ 2). Thompson and Mooney visited Rotech’s Central Point office on March 9 through March 11, 2010, to conduct employee interviews. On April 19, 2010, Thompson submitted an initial memorandum to Mauney summarizing the results of the investigation thus far. (Thelen Decl., Ex. 17, Dckt. # 44-2, pp. 123-131). Bradberry was copied on the initial memorandum. (Id.). The Compliance investigators subsequently conducted follow up interviews on March 24, 2010, and April 15, 2010. (Mauney Decl., Dckt. #43, ¶ 2 & Exs. A-B, Dckt. # 43-1, pp. 1-21).

A. Investigators interview Neighorn

Neighorn was interviewed by the investigators only once, on March 9, 2010. During that interview, he reported the incident where he suspected Coghill had forged a patient’s signature to the investigators. (Neighorn Dep., Dckt. # 44-1, pp. 57). He reported that Coghill had forged patient signatures on medical records and other documents and provided a patient name to the investigators as an example; however, a review of that patient’s chart did not validate any forgery activity. (Thelen Decl., Ex. 17, Dckt. #44-2, pp. 124; Mauney Decl., Ex. A, Dckt. #43-1, pp. 3). He reported the “porching” practice and scribbling the “left on porch” notation on delivery tickets. (Mauney Decl., Ex. A, Dckt. #43-1, pp. 3). Neighorn acknowledged that the “porching” activity was against company policy and grounds for his termination. (Id.). He specified that he would only “porch” oxygen and supplies if the patient’s home was in a rural area, and described the February 24, 2010, incident when Coghill instructed him to leave oxygen tanks in a patient’s driveway in a downtown area, his refusal, and her threatening demeanor. (Id.). He denied being instructed to forge patient signatures by Coghill. (Id.).

B. Investigators interview Stahl

The Compliance investigators interviewed Stahl first on March 10, 2010, and a second time on March 24, 2010, at his request. (Thelen Decl., Ex. 17, Dckt. # 44-2, pp. 124-125; Mauney Decl., Ex. A, Dckt. # 43-1, pp. 5). In the initial interview, Stahl at first denied ever signing a delivery ticket with a patient’s signature or engaging in the “porching” practice, and asserted that if a patient was not home he would leave a door tag with Rotech’s number requesting the patient to call. (Stahl Dep., Dckt. #54-4, pp. 8; Thelen Decl., Ex. 17, Dckt. #44-2, pp. 124-125; Mauney Decl., Ex. A, Dckt. # 43-1, pp. 5-6). However, then the investigators presented him with examples of delivery tickets for patient R.N., Stahl admitted he had signed multiple delivery tickets on behalf of this patient and claimed similar incidents had occurred with other patients, but denied being instructed to sign patient names by Coghill. (Thelen Deck, Ex. 17, Dckt. #44-2, pp. 125; Mauney Decl., Ex. A, Dckt. # 43-1, pp. 6).

In the March 24, 2010, interview, Stahl reported he had withheld information from the Compliance investigators out of fear of retribution by Coghill. (Thelen Decl., Ex. 17, Dckt. #44-2, pp. 125; Mauney Decl., Ex. A, Dckt. #43-1, pp. 7). He stated that Coghill called him the day the Compliance investigators arrived at the Central Point office and instructed him not to disclose or admit that he signed delivery tickets on behalf of patients. (Id.). He further explained that the PSTs regularly discussed the “porching” practice during the daily office calls and that Coghill never commented on those conversations. (Id.). He described the February 12, 2010, incident when Coghill directly instructed him to sign the delivery ticket for patient R.S., explaining that he refused to do so because he had never seen that patient, and instead either left the signature block blank or wrote “left at door per [Coghill]” and then sent the delivery ticket to the Central Point office as per usual protocol. (Id.). The Compliance investigators pulled the patient file, retrieved the delivery ticket in question, and determined that the patient signature was questionable. (Id).

C. Investigators interview Windsor

The Compliance investigators interviewed Windsor twice, first in an initial interview on March 9, 2010, and a second time on April 15, 2010. (Mauney Deck, Ex. A, Dckt. # 43-1, pp. 3-4, 8-9). At the initial interview, Windsor denied knowledge of any suspicious activities at the office, claimed the office was compliant with all policies and procedures, and described Coghill as “a wonderful manager” who was “doing an exceptional job” running the Central Point office. (Id, pp. 4). She described Neighorn as difficult to work with, her suspicion that Neighorn was trying to cause “problems” for Coghill, and reported that Neighorn’s “most common mistake was failure to complete 3rd party signor information.” (Id, pp. 3). She described the daily morning meetings without mentioning the “porching” practice. (Id).

During the second interview on April 15, Windsor reported the PSTs “regularly” discussed the “porching” practice and that Stahl “often” admitted that he left tanks when patients were not at home. (Id, pp. 8). However, she never heard any instruction given to the PSTs regarding this practice nor did any PST ever admit to signing a patient’s name. (Id). Windsor reported that delivery tickets were mailed to the Central Point office where she would sort and batch them to send to billing, but that sometimes Coghill would intercept and take possession of incoming mail. (Id). She stated she would confirm that a signature was indicated in the appropriate section, but denied reading or otherwise attempting to decipher the signatures. (Id). She was presented with and denied signing the delivery ticket for patient R.S., but was unable to either identify the signature or explain what had happened. (Id, pp. 8-9).

D. Investigators interview Coghill

The Compliance investigators interviewed Coghill four times: when they first arrived in Central Point on March 9, 2010; a second time on March 11, 2010, after interviewing Windsor and Stahl; a third time on March 24, 2010, after Stahl gave his amended testimony; and a fourth and final time on April 15, 2010, to specifically resolve the issue of the February 12, 2010, delivery ticket for patient R.S. (Mauney Deck, Ex. A, Dckt. # 43-1, pp. 4-9). Diming the initial interview, the Compliance investigators noted multiple signs of that Coghill was being deceitful, and therefore noted her demeanor throughout the remainder of the investigation. (Id, pp. 9).

Coghill initially reported she was unaware of any “porching” activity and stated the common practice was for PSTs to leave a door tag for the patient or have a neighbor sign on the patient’s behalf. (Thelen Deck, Ex. 17, Dckt. #44-2, pp. 127; Mauney Deck, Ex. A, Dckt. #43-1, pp. 4, 6). She described certain occasions on which she had instructed PSTs to leave equipment at a patient’s home, in which ease the PST was required to obtain the patient’s signature at a subsequent delivery. (Thelen Deck, Ex. 17, Dckt. #44-2, pp. 127; Mauney Deck, Ex. A, Dckt. # 43-1, pp. 4). She stated Windsor brought all delivery tickets with errors to her attention; those tickets would then be returned to the PST to obtain the necessary correction. (Mauney Deck, Ex. A, Dckt. # 43-1, pp. 4). Coghill explained that on February 24, 2010, Neighorn refused to make a delivery to a patient, therefore she instructed him to leave the patient’s oxygen cylinders on the porch along with the delivery ticket so the patient could sign it and send it back, stating she felt this would be acceptable because the patient would be present at the time of delivery. (Id., pp. 5).

During the March 11 interview, Coghill denied hearing any discussion by the PSTs at the daily morning meetings regarding “porching” activity and denied ever telling any PST to complete a delivery ticket on a patient’s behalf or by using the “left on porch” verbiage. (Id., pp. 6). She stated that if a PST was known to have completed a delivery ticket for a patient, disciplinary action would be enforced. (Id.). She further explained that when she was promoted to LCM for the Central Point office, she assumed the PSTs had received adequate training on how to complete delivery tickets, therefore, training never became an issue. (Id.; Thelen Deck, Ex. 17, Dckt. # 44-2, pp. 128).

However, during the March 24 interview, Coghill responded to questions from the Compliance investigators on whether she had coached Stahl on how to respond to questions by stating that she was nervous about the investigation and used the conversation with Stahl as a training opportunity to discuss the correct process for completing delivery tickets. (Thelen Deck, Ex. 17, Dckt. #44-2, pp. 128; Mauney Deck, Ex. A, Dckt. # 43-1, pp. 7). Coghill stated she wanted to make sure Stahl knew he was not supposed to sign for patients and that she knew in the back of her mind that it was going on. (Mauney Deck, Ex. A, Dckt. #43-1, pp. 7). She further stated she had been trying to instruct the PSTs about the proper process for completing delivery tickets every couple of weeks and, although she again denied having specific knowledge of forged signatures, admitted she was concerned the Compliance investigators would find something. (Thelen Deck, Ex. 17, Dckt. # 44-2, pp. 129). When reminded by the Compliance investigators that she initially stated she did not have any such concerns, she could not explain why she had the conversation except to say it just “popped into her head.” (Id.).

Coghill then proceeded to describe the February 12 incident involving patient R.S. and Stahl, stating that she instructed Stahl to leave the oxygen tanks at the patient’s home although he was not there but did not instruct him to sign the delivery ticket. (Id.; Mauney Deck, Ex. A, Dckt. # 43-1, pp. 7). When the Compliance investigators presented her with the delivery ticket, Coghill noted that whoever had signed the patient’s name had used blue ink to match the employee signature. (Thelen Deck, Ex. 17, Dckt. #44-2, pp. 129; Mauney Deck, Ex. A, Dckt. # 43-1, pp. 8). When informed that Stahl had not signed the delivery ticket, Coghill implicated Windsor and denied any involvement with the signature. (Id.). The Compliance investigators suspected her testimony was not truthful based upon non-verbal cues and discrepancies in her statements. (Thelen Deck, Ex. 17, Dckt. # 44-2, pp. 129).

At the fourth and final interview on April 15, the Compliance investigators again presented Coghill with the February 12 delivery ticket for patient R.S. (Thelen Deck, Ex. 17, Dckt. # 44-2, pp. 130; Mauney Deck, Ex. A, Dckt. #43-1, pp. 9). Based on the timeline of events, Coghill agreed Stahl had not signed the ticket, adding that when he signed a patient’s name he would scribble it or write “left on porch.” (Id.). She agreed that all evidence pointed to her but repeatedly stated the evidence was circumstantial. (Mauney Deck, Ex. A, Dckt. # 43-1, pp. 9). When the Compliance investigators compared the signature to samples of her own writing, Coghill agreed there were similarities but stated the circumstances surrounding how the ticket had been signed were purely speculation. (Id.; Thelen Deck, Ex. 17, Dckt. #44-2, pp. 130). The Compliance investigators noted she appeared unconcerned and uninterested in finding a resolution. (Mauney Deck, Ex. A, Dckt. # 43-1, pp. 9).

E. The Compliance investigators perform a comprehensive file review

As part of their investigation process, the Compliance investigators performed a comprehensive file review of all patients serviced by Neighorn and Stahl between December 1, 2008, and March 12, 2010. (Mauney Deck, Exs. A & B, Dckt. # 43-1, pp. 10, 20). Of the 406 patient files reviewed, 507 documents in 109 patient files were identified as having questionable patient signatures. (Id.). In a preliminary report dated May 3, 2010, the Compliance investigators noted that “[a]t the discretion of the VA all identified delivery tickets will be taken out to the patient, confirmed and proper signature obtained, or refunds issued.” (Mauney Deck, Ex. B., Dckt. # 43-1, pp. 21). On February 24, 2011, the Compliance investigators issued a final report noting that “Hollowing a signature validation process by [Rotech] employees,” signature validations were obtained for 49 of these patients, but were unobtainable for the remaining 60 patients for various reasons. (Mauney Deck, Ex. A, Dckt. # 43-1, pp. 10). Payment received for all dates of service for these patients was deemed an overpayment and a refund in the amount of $7,833.65 was issued to the VA. (Id.). Rotech refunded these monies at its own initiative, not at the request of the VA. (Menchen Deck, Dckt. # 51, ¶ 4).

F. Neighorn sends HR additional information

On March 17, 2010, Neighorn sent a second email directly to Long, who in turn forwarded the email to Daggs. (Thelen Deck, Ex. 23, Dckt. #44-4, pp. 6-14). Neighorn attached notes he had been keeping of events in the office between March 8 and March 17, 2010, expressing (1) his concern, based on their behavior, that his complaint had been disclosed to Coghill and Windsor despite reassurances from HR that it would be confidential; (2) his perception that Windsor and Coghill were retaliating against him by not providing him with accurate or timely messages or paperwork relating to patients, resulting a dangerous delay in the initial setup of one VA patient (“patient J.H.”); and (3) his observation that the hazards in the Central Point office, such as the lack of smoke detectors, fire extinguishers, and accurate inventory records, were unchanged. (Id.). The record does not reflect whether this information was provided to the Compliance investigators.

G.Neighorn’s continued observation of perceived violations

Neighorn continued to keep notes regarding his observations in the Central Point office through April 6, 2010. (Thelen Deck, Ex. 29, Dckt. # 44-5, pp. 1-62). On March 30, 2010, Neighorn visited a private (non-VA) patient (“patient R.K”) and recorded that she was out of E tanks, her empty tanks were dated 2008, and her concentrator’s internal filters were dated 2007. (Id., pp. 20). Neighorn perceived the failure to service her concentrator to be a violation of both Rotech policy and JCAHO standards. (Id.).

. On March 31, Coghill instructed Neighorn to unload 36 tanks of oxygen from his delivery truck and load them in the trunk of RT Lydon’s personal vehicle. (Id., pp. 21). Perceiving this to be a violation of JCAHO standards, Rotech policy, and Oregon law, Neighorn unloaded the tanks from his truck but refused to load them in Lydon’s vehicle. (Id., pp. 21-11). He observed a woman who was not known to him assisting Lydon, going in and out of the Central Point equipment locker, and departing in the vehicle with Lydon. (Id.).

On April 1, Neighorn observed the same woman assisting Lydon with unloading her vehicle, placing equipment in the Central Point equipment locker, and mixing dirty and clean equipment in the process. (Id, pp. 23). Later that day he spoke to a patient who requested a delivery from either Lydon or the “trainee” who had assisted Lydon in the past. (Id). Finding this reference odd, Neighorn asked Coghill who the woman was; Coghill told him the woman was Lydon’s mother. (Id). Neighorn recorded his shock that a non-Rotech employee who to his knowledge had received not undergone any screening, received any training, and was not JCAHO certified or trained was performing work for Rotech, being introduced to patients as a Rotech employee, and allowed access to Rotech’s equipment and patient records, all of which he perceived as a violation of Rotech policy, JCAHO standards, and federal law. (Id, pp. 23-24).

On April 2, 2010, Neighorn noticed several documents posted in the Central Point office that had not previously been displayed, including a memorandum on safety and JCAHO surveys, a bulletin on the Rotech Compliance Hotline, and a memorandum dated March 22, 2010, from Rotech’s Chief Operating Officer (“COO”), Chief Compliance Officer (“CCO”), and Director of Compliance referencing the termination of several employees dues to the exercise of poor judgment. (Id, pp. 24; Thelen Deck, Ex. 21, Dckt. # 44-4, pp. 2). Later that day, Neighorn spoke to Long and inquired about the status of the compliance investigation and whether he should report newly discovered JCAHO violations to HR or to Compliance, and provided examples. (Id, pp. 25). He recorded his frustration with Long’s refusal to provide guidance and confusion that Long represented she could not provide guidance with compliance issues when he felt she had done so in the past. (Id). Neighorn then requested an updated handbook from Coghill; she refused his request on grounds that additional copies needed to be made first. (Id). Noting that the bulletins he had observed earlier in the day were no longer displayed, Neighorn recorded his perception that Rotech’s response to his complaint seemed retaliatory and directed towards finding errors with his work, and his frustration that there was no person within Rotech to whom he could report and discuss the violations he observed. (Id, pp. 26).

IV. Neighorn’s JCAHO Complaint & the JCAHO’s Investigation

On April 3, 2010, Neighorn filed a complaint with the JCAHO. (Id; Thelen Deck, ¶ 33 & Ex. 33, Dckt. # 44-5, pp. 72-74). In his complaint, Neighorn reported that (1) patient files were stored in unlocked file cabinets and boxes in unsecured areas of the warehouse; (2) the warehouse lacked sufficient smoke detectors and fire extinguishers; (3) oxygen storage vaults were left unlocked; (4) logs for compressed oxygen tanks were not accurately maintained; (5) his observation of non-employees in the oxygen storage vaults, assisting employees with the delivery of equipment, and his belief that this person lacked JCAHO training and certification; (6) the use of a personal vehicle by an employee to transport and deliver oxygen; (7) the mixing of clean and dirty equipment in the warehouse; (8) that patients found to be in gross violation of JCAHO safety standards were allowed to continue to receive oxygen and related equipment; (9) CPAP and BIPAP fittings and setups being done by the location manager who was not trained or certified to do so; (10) location PSTs being directed to leave compressed oxygen tanks unattended at patient homes and instructed that signing “left on porch” in the patient signature block was acceptable in rural or outlying areas; (11) alteration of certificates of medical necessity (“CMN”) and forgery of patient signatures by the location manager; (12) the failure to properly service a patient’s compressor; (13) the policy of the location manager to require employees to certify receipt and reading of company and JCAHO policy changes without allowing employees to read the policy or retain a copy; and (14) his report of these violations to the company and suspicion that the company was covering up or ignoring these issues. (Id.).

The JCAHO conducted an investigation at Rotech’s Central Point office on May 14, 2010. (See Thelen Decl., ¶ 25 & Ex. 24, Dckt. #44-4, pp. 15-16). The JCAHO auditor uncovered multiple deficiencies during that investigation, including failure by Coghill to properly train staff on required forms, failure by Coghill to conduct PST ride-alongs, Coghill’s practice of allowing non-management staff to train employees, improperly secured and unsecured oxygen tanks, improperly maintained fire extinguishers, failure to designate separate clean and dirty equipment areas, improperly serviced and calibrated equipment, inadequately documented CPAP charts, and inaccurate facility inspection sheets. (Id., pp. 16). These audit results created the risk that Rotech as an organization could lose its JCAHO accreditation. (Id.). Area Manager Nancy Fannin reviewed these investigation results with Coghill at an office visit on May 19, 2010. (Suppl. Thelen Deck, ¶ 6 & Ex. 39, Dckt. # 65-5).

V. Rotech Takes Disciplinary Action

On March 16, 2010, after the Compliance investigators’ initial round of interviews, but before the investigation was completed, Wayne Bradberry, Rotech’s Director of Compliance, issued an email with recommendations for disciplinary action. (Thelen Deck, Ex. 18, Dckt. #44-2, pp. 132). In this email, Bradberry reported that the original allegation against Coghill, that “she had been forging patient signatures on documents and company paperwork and was instructing PSTs to deliver cylinders without obtaining patient signatures,” had not been substantiated by the investigation. (Id.).

A. Neighorn

In his March 16 email, Bradberry recommended Neighorn be terminated for violating company policy “[d]ue to his admission to signing patients’ names.” (Thelen Deck, Ex. 18, Dckt. # 44-2, pp. 132). Rotech asserts it made the decision to terminate Neighorn’s employment at some time prior to March 18, 2010. (Defs’ Corr. Mem., pp. 9). However, Rotech did not terminate Neighorn’s employment until April 8, 2010. (Id.; Thelen Deck, Ex. 22, Dckt. # 44-4, pp. 3-5). The employee performance counseling report documenting Neighorn’s termination records the reason for termination as his admission to “scribbling patients’ names on delivery tickets” despite his knowledge that this activity violated Rotech’s Proof of Delivery policy. (Id.).

When presented with the employee performance counseling report advising him of the fact of his termination and the reason for it, Neighorn protested on grounds that he never stated he signed patients’ names. (Id., pp. 3-4; Neighorn Dep., Dckt. # 44-1, pp. 9-11). The Compliance investigators’ initial memorandum, preliminary report, and final report all reported that Neighorn stated the “left on porch” notation could be scribbled such that it was indistinguishable from a patient signature. (Thelen Deck, Ex. 17, Dckt. #44-2, pp. 124; Mauney Deck, Exs. A & B, Dckt. # 43-1, pp. 3, 13). Neighorn denies making this statement and further denies that he ever forged or attempted to forge a patient’s signature. (Neighorn Dep., Dckt. #44-1, pp. 9-10; Thelen Deck, Ex. 22, Dckt. # 44-4, pp. 3-4). Instead, he argues he scribbled the “left on porch” notation instead of printing per Coghill’s instruction, to make it less likely that the delivery ticket would be rejected by billing. (Neighorn Dep., Dckt. # 44-1, pp. 14).

Rotech’s response, if any, to Neighorn’s protest is not part of the record. Indeed, both the Compliance investigators’ May 2010 preliminary report and February 2011 final report, both issued after Neighorn’s termination had occurred, repeat the recommendation that Neighorn be terminated “[biased on [his] admission to signing patients’ names” without mentioning that Neighorn disputed that he had done so. (Mauney Deck, Exs. A & B, Dckt. # 43-1, pp. 10, 20).

B. Stahl

In his March 16 email, Bradberry recommended Stahl be terminated for violating company policy “[d]ue to his admission to signing patients’ names.” (Thelen Deck, Ex. 18, Dckt. # 44-2, pp. 132). Rotech asserts that it decided to terminate Stahl’s employment at some time prior to March 18, 2010. (Defs’ Corr. Mem., pp. 9). The record does not reflect the date on which Rotech actually terminated Stahl’s employment. Both the Compliance investigators’ May 2010 preliminary report and February 2011 final report repeat the recommendation that Stahl be terminated “[biased on [his] admission to signing patients’ names” in. (Mauney Deck, Ex. A & B, Dckt. # 43-1, pp. 10, 20).

C. Windsor

Although Windsor was aware of the “porehing” practice, understood it to be an “obvious” violation of Rotech policy, and observed that Coghill took no steps to correct it, neither Bradberry nor the Compliance investigators recommended that any disciplinary action be taken against her. Windsor did not receive any counseling or disciplinary action as the result of the internal Compliance investigation. (Windsor Dep., Dckt. # 54-6, pp. 31).

D.Coghill

Rotech terminated Coghill’s employment in May of 2010. (Thelen Deck, Ex. 24, Dckt. # 44-4, pp. 15-19). In his March 16 email, Bradberry recommended Coghill receive documented counseling “[d]ue to her admission of advising staff to leave oxygen, a regulated hazardous material, unsecured at patient’s [sic] home.” (Thelen Deck, Ex. 18, Dckt. # 44-2, pp. 132). In both their May 2010 preliminary report and February 2011 final report, the Compliance investigators recommended Coghill be terminated based on her knowledge that Neighorn and Stahl were “signing patients’ names on delivery tickets” and her failure to either stop the practice or report it as required by Rotech’s Code of Conduct. (Mauney Deck, Ex. A & B, Dckt. # 43-1, pp. 10, 20).

The employee performance counseling report documenting Coghill’s termination mentioned the internal Rotech compliance investigation, but focused on the May 14, 2010, JCAHO investigation. (Thelen Deck, Ex. 24, Dckt. #44-4, pp. 16; see also Suppl. Thelen Deck, ¶ 7 & Ex. 40, Deposition of Tamara Tait (“Tait Dep.”), Dckt. # 65-6). The report reviewed the errors discovered by the JCAHO auditor and noted that although Coghill had been properly trained for the position of LCM and had held that position for nearly three years, she failed to correct the JCAHO auditor’s perception that she was a new employee whom Rotech had failed to sufficiently train. (Thelen Deck, Ex. 24, Dckt. #44-4, pp. 16). Coghill’s failure to correct this misperception and her failure to effectively manage the Central Point office put Rotech’s entire West 2 region at risk of losing its JCAHO accreditation. (Id.; Tait Dep., Dckt. # 65-6, pp. 12). Finally, although Coghill had “excuses for every situation” when her Area Manager reviewed the audit results with her on May 19, 2010, those excuses were deemed “unreasonable and inconsistent” with the JCAHO auditor’s report. (Thelen Decl., Ex. 24, Dckt. # 44-4, pp. 16).

STANDARD

Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material of fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) (2010); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001) (en banc). The court cannot weigh the evidence or determine the truth but may only determine whether there is a genuine issue of fact. Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir.2002). An issue of fact is genuine “ ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002) (iquoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

When a properly supported motion for summary judgment is made, the burden then shifts, and the opposing party must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; Auvil v. CBS “60 Minutes,” 67 F.3d 816, 819 (9th Cir.1995). Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts which show there is a genuine issue for trial. Devereaux, 263 F.3d at 1076. Put another way, summary judgment should be granted when the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the non-moving party. Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir.1995). When viewing the evidence at this stage, all justifiable inferences are drawn in favor of the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1180 (9th Cir.2002).

DISCUSSION

Defendants move for summary judgment on each of Neighorn’s four claims for relief. The court examines the arguments presented on each claim in turn.

I. FCA Retaliation Claim

Neighorn alleges he suffered retaliation as a result of his complaints about Rotech’s unwritten “porching” policy and Coghill’s failure to ensure the Central Point office met JCAHO standards, and that such retaliation constitutes a violation of the FCA. See 31 U.S.C. § 3730(h).

The FCA was enacted during the Civil War for the purpose of combating “widespread fraud by government contractors who were submitting inflated invoices and shipping faulty goods to the government.” U.S. ex rel. Hopper v. Anton, 91 F.3d 1261, 1265-66 (9th Cir.1996). Seven types of conduct are made actionable under the FCA. 31 U.S.C. § 3729(a)(l)-(7). Of these, three require that the misconduct involve an actual demand for payment, § 3129(a)(l)-(3), while the remaining four provide that the “false claim” lies in the fraudulent use of a receipt, § 3129(a)(4)-(5), the unauthorized purchase of government property, § 3729(a)(6), or the use of a “false record or statement” to avoid payment to the government, § 3729(a)(7). Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055-56 (9th Cir.2011). The FCA provides that a person may file a qui tarn action on behalf of the person and the federal government for any violation of section 3729. 31 U.S.C. § 3730(b).

Liability for FCA violations attaches not only as the result of the actual submission of a false claim, but also under the doctrines of false certification and promissory fraud. U.S. ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1171 (9th Cir.2006) (internal citation omitted). Under the doctrine of false certification, liability attaches as the result of the party’s false certification of “compliance with a statute or regulation as a condition to government payment.” Id. The false certification may either be express or implied. Id.; Ebeid ex rel. U.S. v. Lungwitz, 616 F.3d 993, 998 (9th Cir.2010) (recognizing the implied false certification theory). By contrast, the doctrine of promissory fraud attaches liability “to each claim submitted to the government under a contract, when the contract or extension of government benefit was originally obtained through false statements or fraudulent conduct.” Hendow, 461 F.3d at 1173. Unlike the false certification doctrine, liability under the promissory fraud doctrine attaches not as a result of a false statement of compliance with government regulations, but as the result of the original fraud perpetrated in securing the government contract or benefit. Id. Claims under either doctrine must establish four elements: (1) a false statement or fraudulent course of conduct, (2) made with scienter, (3) that was material, causing (4) the government to pay out money or forfeit moneys due. Id. at 1174.

In this case, Neighorn does not argue Rotech actually submitted false claims to the government. Instead, he argues Rotech “threatened, disciplined, harassed, discharged, and in other manners retaliated and discriminated against” him in violation of the FCA’s anti-retaliation provision, 31 U.S.C. § 3730(h).

FCA Retaliation

The False Claims Amendments Act of 1986 amended the FCA to provide relief to employees subjected to retaliation as the result of the employee’s “lawful acts” done in furtherance of the FCA. Pub.L. No. 99-562, § 4, 100 Stat. 3153, 3157-58 {codified at 31 U.S.C. § 3730(h)). Liability under 31 U.S.C. § 3730(h) attaches, not as a result of the employer’s actual or suspected fraud, but as a result of an employer’s “retaliatory act against the investigating employee.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir.2008). Therefore, the plaintiff need not show that the defendant actually submitted a false claim in violation of 31 U.S.C. § 3729, only that he suspected the defendant submitted a false claim. Id. (emphasis added) (citing Graham Cnty. Soil & Water Cons. Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 416-17 & n. 1, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005)). A plaintiff alleging a retaliation claim under § 3730(h) must show that: (1) he was engaging in conduct protected under the FCA; (2) his employer knew he was engaging such conduct; and (3) his employer discriminated against him because of his protected activity. Id. (citing Moore v. Cal. Inst. of Tech. Jet Prop