United States v. Dental Dreams, LLC (307 F. Supp. 3d 1224, 2018)

Judith C. Herrera, United States District Judge

This matter is before the court on (i) the Motion for Summary Judgment and Memorandum in Support (ECF No. 112), filed by Defendants on November 10, 2017; (ii) Defendants' Motion to Exclude Certain Opinions and Testimony of Plaintiff's Expert Witness (ECF No. 111), filed November 10, 2017; and (iii) the Motion to Partially Dismiss Amended Complaint and to Strike (ECF No. 57), filed by Defendants on November 11, 2016. This Court, having considered the pleadings, motions, briefs, evidence, and relevant law, concludes that (i) Defendants' motion for summary judgment should be granted in part and denied in part as described herein, but the Court will reserve ruling for a hearing on the issue of the liability of Defendants Dental Dreams, LLC a.k.a. Dental Experts, LLC, an Illinois limited liability company, and KOS Services, LLC; (ii) Defendants' motion to exclude certain opinions of Plaintiff's expert Dr. Ryan Craig Moffat will be granted; and (iii) Defendants' motion to partially dismiss the amended complaint and to strike will be granted in part and denied in part as described herein.

A. Defendants' Motion for Summary Judgment

Defendants filed a motion for summary judgment seeking dismissal of all claims in the amended complaint except for Count 25 against Family Smiles. In Plaintiff's response, he agreed to the dismissal of the following claims: Count 22 (Bad faith breach of contract), Count 23 (Fraud in the inducement), Count 24 (Tortious interference with contract), Count 26 (Intentional infliction of emotional distress), and Count 27 (Prima facie tort). Pl.'s Resp. 18 n.2, ECF No. 123. The Court will therefore dismiss Counts 22-24 and 26-27 and turn to the merits of the remaining counts.

1. Factual Background

a. Plaintiff's Hiring and Employer

Plaintiff/Relator Jose Hernandez-Gil (hereinafter "Plaintiff") is a dentist who worked for Defendant Family Smiles, LLC ("Family Smiles") for an approximately two-week period in May 2013, pursuant to an Employment Agreement dated April 30, 2013. Def.'s Mot. for Summ. J. ("MSJ"), Undisputed Fact ("UF") ¶ 1, ECF No. 112. The employment agreement was between Plaintiff and "Family Smiles, LLC, a New Mexico limited liability company, its successors and assigns, as well as its parent, or any subsidiary, affiliate, joint venture or partner of Family Smiles, LLC (collectively 'FSL')." Employment Agreement, ECF No. 52-1.

KOS Services, LLC, ("KOS") is a limited liability company ("LLC") in Illinois, and its Articles of Organization form lists Khurram Hussain as its registered agent and states that it "has management vested in ... member ... Khurram Hussain." Defs.' Reply, Ex. E, ECF No. 127-5 at 6-7 of 14. KOS provides administrative services for Family Smiles and Khurram Hussain is the President of KOS. Decl. of Khurram Hussain ¶ 1, ECF No. 112-5.

Dental Experts is an LLC, and its Illinois Articles of Amendment list Dr. Sameera Hussain as a member. Defs.' Reply, Ex. E, ECF No. 127-5 at 8-10 of 14. Dental Dreams was a New Mexico LLC and Dr. Sameera Hussain was its sole member. See id. at 12-14 of 14; Answer ¶ 24, ECF No. 56 at 14 of 112.

b. Plaintiff's Discovery of Billing Practices at Family Smiles

Dr. Noah Shafer was a dentist employed by Family Smiles from June 2011 to September 2012, prior to Plaintiff's employment with Family Smiles. Def.'s MSJ, UF ¶ 2, ECF No. 112. Dr. Shafer was one of more than 220 dentists working for or affiliated with the entity Defendants during Plaintiff's employment. Id.

While employed by Family Smiles, Dr. Hernandez-Gil treated some patients, who Dr. Shafer previously had treated. See Dep. of Hernandez-Gil 173:22-174:5, ECF No. 123-2. In reviewing some of the patients' charts, Dr. Hernandez-Gil found records of treatments that he believed, based on his examination of the patients, had not been provided. Decl. of Hernandez-Gil ¶ 9, ECF No. 123-3. Two dentists for Family Smiles reported to Plaintiff that they were worried they were going to be fired because they were unwilling to do medically unnecessary procedures which Edith Pinto, Regional Manager for Family Smiles' New Mexico dental clinics, and the owners of the company were pressuring them to perform. See Dep. of Dr. Hernandez-Gil 140:15-141:24, 185:21-186:7, ECF No. 123-1; Decl. of Hernandez-Gil ¶ 15, ECF No. 123-3.

On May 15, 2013, Plaintiff reported what he had found with the patients and charts of Dr. Shafer to Edith Pinto. Decl. of Hernandez-Gil ¶¶ 15-16, ECF No. 123-3. Plaintiff also told Ms. Pinto what the other dentists had told him. Dep. of Dr. Hernandez-Gil 140:15-141:24, 185:21-186:7, ECF No. 123-1. At the time, Ms. Pinto acted shocked, like this was the first she was hearing of this, and she said she was going to look into it. Decl. of Hernandez-Gil ¶ 16, ECF No. 123-3; Dep. of Dr. Hernandez-Gil 185:21-186:10, ECF No. 123-1.

Minutes later on May 15, 2013, Dr. Hernandez-Gil reported the situation to Clint Sandoval, the Atrisco Office Manager. See Dep. of Dr. Hernandez-Gil 185:21-186:24, ECF No. 123-1; Decl. of Hernandez-Gil ¶ 10, ECF No. 123-3. Mr. Sandoval immediately admitted, "You're going to find a lot of that." Decl. of Hernandez-Gil ¶ 11, ECF No. 123-3. Mr. Sandoval acted as though he was not upset; instead, he was making fun of it and implying that it was the culture of the company. Dep. of Dr. Hernandez-Gil 253:9-22, ECF No. 123-1. Mr. Sandoval said that Edith knows all about and has known all about the allegations Plaintiff had brought to her attention. See id. at 185:21-188:7. Dr. Hernandez-Gil replied that it was fraud. Decl. of Hernandez-Gil ¶ 12, ECF No. 123-3.

On May 16, 2017, Plaintiff spoke with Mr. Sandoval again about Dr. Shafer's fraudulent billing practices. Decl. of Dr. Hernandez-Gil ¶ 18, ECF No. 123-3. Mr. Sandoval replied that Ms. Pinto, Sameera Hussain and "Khurram" were all aware of the practices. Id. When Plaintiff asked who was Khurram, Mr. Sandoval replied that he was Sameera Hussain's husband and attorney for the network of dental clinics and other businesses that included Family Smiles, Dental Dreams, Dental Experts, and KOS. Id. Mr. Sandoval referred to all these entities, together with other companies in their network, as "the company." Id. Mr. Sandoval explained that Sameera ran the dental side of the business, while Khurram ran the legal side, and KOS handled the money side. Id. He stated that Sameera and Khurram Hussain effectively own or control the entire network, regardless of whose name is on the title. Id. Mr. Sandoval said that Sameera and Khurram would not allow an investigation or audit into the fraudulent billing because it would cost too much money. Id. Mr. Sandoval then explained that the company used employment contracts in which dentists could not leave the company without giving notice a very significant period of time in advance, provisions the company would use to force the dentists that wanted to leave sooner to meet certain performance goals to gain an early release. Id. ¶ 19. Mr. Sandoval explained that performance goals were so high that they virtually required fraud be committed by those dentists. Id.

On May 20, 2013, Plaintiff told Ms. Pinto about all the files of Dr. Shafer he found with procedures charted and billed to Medicaid, but never actually performed. Id. ¶ 20. Ms. Pinto acknowledged she was aware of the billing fraud and said there were forms to fill out if he found more of these situations. Id. ¶ 21. On May 22, 2013, Plaintiff found more instances in patient charts indicating services had been performed and billed, when in fact the services were not performed. Id. ¶ 22. Consistent with Ms. Pinto's direction, Plaintiff reported to Mr. Sandoval that same day the fraudulent charges he discovered. Id. ¶ 23. In response, Mr. Sandoval replied "the company" wanted Plaintiff to do the missing work, fill out a form, and allow his production to be credited with the work, although it would not at that time be billed. Id. ¶ 24. Plaintiff stated that the company's response was inadequate by law and that it needed to report it and do an audit. Id. ¶ 25. Mr. Sandoval said that he knew that was what the company was required to do, but it was not what the company would do because they would lose too much money. Id. The forms Mr. Sandoval provided Plaintiff to complete on the falsely certified work were pre-addressed to Sameera Hussain. Id. ¶ 26. Plaintiff submitted two such forms. See id.

Prior to his raising allegations of false Medicaid billing practices, in his first few days of work, Plaintiff had been getting positive feedback. Dep. of Dr. Hernandez-Gil 214:19-215:8, ECF No. 123-1. After raising his allegations, his feedback changed. Id.

c. Unwanted physical contact

Beginning on May 15, 2013, when Mr. Sandoval discovered that Plaintiff was gay, and again on May 21, 2013, Mr. Sandoval touched and rubbed Plaintiff's back, despite Plaintiff repeatedly telling him to stop. See Verified Am. Compl. ¶ 175, ECF No. 52. On May 24, 2013, Mr. Sandoval put his hands on Plaintiff, and when Plaintiff yelled and told him never to touch him again, Mr. Sandoval laughed and left the office. Id. ¶ 178.

On May 25, 2013, Plaintiff reported to Ms. Pinto that, after discovery that Plaintiff was gay, Mr. Sandoval had begun touching and rubbing Plaintiff, that this was unwelcome, that Plaintiff had repeatedly told Mr. Sandoval to stop, Mr. Sandoval dismissed his objections, and Mr. Sandoval had continued to an extent that was becoming sexual harassment. Id. ¶ 183. Plaintiff told Ms. Pinto that Mr. Sandoval's complaints to her about Plaintiff were being exaggerated in retaliation for these and other objections Plaintiff had voiced during his employment. Id. Ms. Pinto ignored his concern and made no direct response. Id. In this same conversation, Plaintiff reminded Ms. Pinto about all the patients he had seen from Dr. Shafer with either work billed and not done or work that needed to be redone. Id. ¶ 185.

d. Plaintiff's disability and service dog in training

Plaintiff has Generalized Anxiety Disorder and a history of PTSD. See Dep. of Kelly Coleman 54:18-55:17, 56:9-57:11, 61:6-17, 90:19-92:24, ECF No. 123-2; Letter from Dr. Kelly Coleman, ECF No. 123-2 at 21 of 21. Plaintiff's licensed clinical psychologist, Dr. Kelly Sueoka Coleman, recommended he address the symptoms of his anxiety disorder using a service dog to help alleviate some of his anxiety. See Dep. of Kelly Coleman 17:12-13, 57:6-59:3, 74:17-75:3, 80:12-22, 90:19-92:24, ECF No. 123-2; Letter from Kelly Coleman, ECF No. 123-2 at 21 of 21. Plaintiff had a dog Boscoe, a large St. Bernard, who was a service dog in training. Decl. of Dr. Hernandez-Gil ¶ 7, ECF No. 123-3; Dep. of Dr. Hernandez-Gil 118:3-119:9, ECF No. 112-7; Dep. of Kelly Coleman 77:25-78:3, ECF No. 123-2. Dr. Coleman specifically had numerous conversations recommending Plaintiff use Boscoe as a service dog to help him with his general anxiety he experienced all the time. See Dep. of Kelly Coleman 58:10-59:3, 74:14-75:3, 77:2-78:19, 80:1-22, ECF No. 123-2. By letter dated September 10, 2012, Dr. Coleman recommended to the Office of Disability for Service Dogs a request for a service animal for Dr. Hernandez-Gil. Letter from Dr. Kelly Coleman, ECF No. 123-2 at 21 of 21. Boscoe had not completed his certification process and would not complete his training until up to a year after May 2013. See Dep. of Dr. Hernandez-Gil 118:3-119:9, ECF No. 112-7.

Plaintiff needed and used Boscoe as a service dog to assist during his commute to the Atrisco clinic and to help him with his panic attacks, should one arise. Dep. of Dr. Hernandez-Gil 202:7-203:9, 219:6-221:5, ECF No. 123-1, and 222:13-25, ECF No. 112-7. Boscoe was able to give Plaintiff cues that he was going to have a panic attack. See id. 220:3-222:25, ECF No. 112-7. Even if Boscoe were in another room, if Plaintiff could see him, Boscoe could give him cues of a panic attack, so Plaintiff could go to Boscoe, whose presence could alleviate his symptoms. See id.

Family Smiles' Employee Handbook states that pets are prohibited from all offices, but "[s]ervice animals are not considered pets." Decl. of Dr. Hernandez-Gil, Attachment B, ECF No. 123-3 at 12 of 12. Plaintiff disclosed his disability to Ms. Pinto on May 13 and 14, 2013. See Verified Am. Compl. ¶¶ 348-49, ECF No. 52. He stated that his dog Boscoe has trained responses to and alleviates his symptoms when present. See id. ¶ 349.

On May 24, 2013, Plaintiff also told Mr. Sandoval that Boscoe helped alert to and helped him work through his panic attacks, such as when driving. See Verified Am. Compl. ¶ 349, ECF No. 52. On May 24 or 25, 2013, Plaintiff told Ms. Pinto of his intention to bring Boscoe, who he said was a service dog, and put him in the office. See Dep. of Dr. Hernandez-Gil 195:24-196:21, 201:3-202:6, ECF No. 123-1. Ms. Pinto told him that he could not use the office because too many people use the office, and he needed to have a cage for Boscoe. See id. 197:7-9, 199:5-22. Plaintiff indicated that Boscoe could be put in a cage and was crate-trained but that Boscoe needed to be where he could see him. Id. 218:2-14. Ms. Pinto said that they could talk about it later because it did not have to happen now. Id. 199:18-22. Plaintiff understood that the issue of the cage was still open and not definite. See id.

At some point, Ms. Pinto proposed housing Boscoe in a back office. See id. Plaintiff, however, believed that a cage in a back room was impractical because he would not be able to see Boscoe, and visual contact with his dog was helpful because the dog could signal to him that a panic attack was coming. See Dep. of Dr. Hernandez-Gil 199:5-200:11, ECF No. 112-7, and 223:4-224:6, ECF No. 123-1. He pointed out that people did not use the office he preferred in the way she said it was used. See id. 201:3-12, ECF No. 112-7.

On Monday, May 27, 2013, Plaintiff first brought Boscoe to work and placed him in the clinic's only office, one which was seldom used by Family Smiles' personnel, and put up a gate in the office doorway, one which easily opened with a handle. See Dep. of Dr. Hernandez-Gil 197:13-198:9, 201:8-202:6, ECF No. 123-1. Plaintiff did not bring a cage. Id. 197:13-16. Boscoe was well-groomed and well-behaved. Decl. of Dr. Hernandez-Gil ¶ 8, ECF No. 123-3. While in the office on May 27-28th, Boscoe slept and did not actively perform functions as a service dog, but his presence in the clinic helped Plaintiff because, if he were to start having a panic attack, Boscoe could help calm him. See Dep. of Dr. Hernandez-Gil 170:6-17, ECF No. 112-7, and 219:6-221:5, 123-1.

On May 27, 2013, Ms. Pinto came to the clinic with Ann Patrone, Special Projects Manager. Verified Am. Compl. ¶¶ 186, ECF No. 52. Ms. Pinto chastised Plaintiff for not bringing a cage for Boscoe. Id. Plaintiff responded that he had never agreed to bring a cage because it was impracticable, but that they had bigger problems because he had seen yet another patient of Dr. Shafer for which work was billed and not done. Id. Plaintiff stated that the Network needed to do an audit or someone had to report it to Medicaid. Id. Ms. Pinto walked away. Id. Later that day, Plaintiff again reported to Ms. Pinto and Ms. Patrone that Dr. Shafer billed for work not done and that they had to do an audit because by law they had to report this to Medicaid. Id. ¶ 187.

e. Plaintiff's Termination from Family Smiles

On May 28, 2013, Plaintiff brought Boscoe into the office again. Dep. of Dr. Hernandez-Gil 209:9-12, ECF No. 123-1. At around 2 p.m., Khurram Hussain and Juliette Boyce called via Skype Ann Petrone and Clint Sandoval. Pl.'s Resp. Ex. 4, ECF No. 123-4 at 2 of 7. They spoke before bringing Plaintiff into the call. See id.

Mr. Sandoval told Plaintiff he had to have a Skype meeting with Khurram Hussain and asked Plaintiff if he could get Boscoe out of the room. Dep. of Dr. Hernandez-Gil 209:9-23, ECF No. 123-1. Plaintiff left with Boscoe and stood outside the open door. Id. 209:24-210:1. Khurram Hussain asked Mr. Sandoval if there was "some fucking dog in the clinic," and Mr. Sandoval responded yes. Id. 210:2-8. Mr. Sandoval brought Plaintiff into the room and Mr. Hussain told him that he had federal, state, and local laws he had to adhere to and health laws and he could not allow a companion dog in the office, one that he needed only for companionship on the drive to the office. See id. 211:2-13. Plaintiff responded that Boscoe was a service dog in training and that he could provide documentation. Id. 211:14-16. Mr. Hussain responded that he did not need to see any documentation, he must leave the dog at home, and if he brought him to work the next day, he will be fired. Id. 211:16-21. Plaintiff replied that he would bring him tomorrow because he is a service dog and that he could provide the paperwork. Id. 211:21-23. Mr. Hussain said he was satisfied he is a companion dog, that he is to stay at home or he would be fired. Id. 211:23-25. Plaintiff repeated that he's coming here tomorrow, and Mr. Hussain said, "[F]ine, then you're fired. I will send you paperwork stating that." Id. 211:25-212:2.

By letter dated May 28, 2013, Peter Stathakis informed Plaintiff: "Pursuant to our executed agreement, Section Fourteen (14), Family Smiles, LLC is hereby issuing you formal notice of immediate termination. This termination is issued the 28th day of May, 2013 and will be effective immediately." Defs.' Ex. 8, ECF No. 112-8. Mr. Stathakis, the Secretary of Family Smiles and the Chief Financial Officer of Dental Experts and KOS, signed the letter. See id. ; Answer ¶¶ 22, 27, ECF No. 56 at 13, 16 of 112. Section 14 of the Employment Agreement permitted termination for a variety of reasons including "[i]n the event Dentist conducts himself/herself, either personally or professionally, in a manner that FSL deems inconsistent with or detrimental to achieving the business and professional goals of FSL," and "[i]f Dentist has breached the terms of this Agreement." Employment Agreement § 14, ECF No. 112-1. The Employment Agreement required Plaintiff to provide dental services "in a professional and courteous manner." Id. § 1.

No patients ever complained to Plaintiff about his care or manner; nor did anyone at Family Smiles inform him of patient complaints against him while he was working there. See Dep. of Dr. Hernandez-Gil 203:10-24, ECF No. 123-1. Plaintiff never raised his voice with staff or patients. Id. 203:25-204:14.

f. Dr. Moffat's Review of Family Smiles' Dental Records

Dr. Ryan Moffat is a Board Certified Pediatric Dentist, who Plaintiff hired as an expert witness to review the billings to Medicaid made by Dr. Shafer while employed at Family Smiles. Report of Dr. Moffat 1-2, ECF No. 111-1. Dr. Moffat analyzed chart notes, radiographs, and billing statements for all patients seen by Dr. Shafer during the time of his employment. Id. at 3. Dr. Moffat studied the dental charts of approximately 1,325 patients seen by Dr. Shafer over the course of about 18 months. Id. at 7. Of those 1,325 patients, Dr. Moffat found no problems with the billings for approximately 789 patients. Dep. of Dr. Moffatt 50:5-25, ECF No. 111-2. For 212 patients, Dr. Moffat could not form an opinion based on the evidence of whether there were false or fraudulent claims submitted regarding their care. Id. 51:7-52:6. Dr. Moffat thus found that approximately 1,001 patients of the 1,325 either did not have billing problems or he could not form an opinion that there were billing problems. See id. 51:7-52:19.

Dr. Moffat opined that he discovered billing problems with 324 patients, some of whom had billing issues in both "Category A" restorations and "Category B" restorations. See id. 52:15-53:20. Dr. Moffat defined "Category A" restorations as those said to have been completed and billed for, but as to which Dr. Moffat's examination of follow-up x-rays showed no evidence of restorations having been done. Id. ; Report of Dr. Moffat 3, ECF No. 111-1. He defined "Category B" restorations as those said to have been completed and billed for as more expensive fillings, but as to which Dr. Moffat's examination of follow-up x-rays showed were not truly fillings, but should have been billed as less expensive sealants or Preventative Resin Restorations. See Report of Dr. Moffat 3, 5, ECF No. 111-1. In 324 patient records, Dr. Moffat concluded Dr. Shafer falsely billed for 332 Category A restorations and 1,487 Category B restorations. See id. at 3-5. As used in his report, Dr. Moffat understood that "false" indicates error while "fraudulent" indicates intent associated with a billing error to bill things incorrectly for some type of personal gain. See Dep. of Dr. Moffat 39:3-5, 40:9-13, ECF No. 111-2. Dr. Moffat calculated approximately $91,251 in the total amount billed falsely for Category A and Category B restorations. See Report of Dr. Moffat 4-5, ECF No. 111-1.

2. STANDARD

On a motion for summary judgment, the moving party initially bears the burden of showing that no genuine issue of material fact exists. Shapolia v. Los Alamos Nat'l Lab. , 992 F.2d 1033, 1036 (10th Cir. 1993). Once the moving party meets its burden, the nonmoving party must show that genuine issues remain for trial. Id. The nonmoving party must go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "All facts and reasonable inferences must be construed in the light most favorable to the nonmoving party." Quaker State Minit-Lube, Inc. v. Fireman's Fund Ins. Co. , 52 F.3d 1522, 1527 (10th Cir. 1995) (internal quotations omitted). Only disputes of facts that might affect the outcome of the case will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. See id. at 248, 106 S.Ct. 2505.

3. ANALYSIS

a. False Claims Act and New Mexico Analogous Claims (Counts 1-12)

Plaintiff brought claims under the False Claims Act ("FCA"), 31 U.S.C. § 3729 - 3731, New Mexico Medicaid False Claims Act, N.M. Stat. Ann. §§ 27-14-1 et seq. ("MFCA"), and the New Mexico Fraud Against Taxpayers Act, N.M. Stat. Ann. §§ 44-9-1 et seq. (2007) ("FATA") against all Defendants. In his response, however, Plaintiff stated he "is not pressing claims under the FCA or its New Mexico counterparts against any of Defendants other than Family Smiles." Pl.'s Resp. 23 n.7, ECF No. 123. The Court will therefore dismiss the FCA, MFCA, and FATA claims in Counts 1-12 against Defendants Dental Dreams, LLC a.k.a. Dental Experts, LLC, an Illinois LLC; Sameera Hussain; Dental Dreams, LLC, a New Mexico LLC; Frank Von Westernhagen; KOS Services, LLC; and Khurram Hussain. The Court will therefore turn to the merits of these claims against Defendant Family Smiles.

(1) False Claims (Counts 1-12)

"FATA closely tracks the longstanding federal False Claims Act." State ex rel. Foy v. Austin Capital Management, Ltd. , 2015-NMSC-025, ¶ 25, 355 P.3d 1. New Mexico state courts have also looked to federal precedent construing the FCA to provide guidance on the MFCA. State ex rel. King v. Behavioral Home Care, Inc. , 2015-NMCA-035, ¶ 17, 346 P.3d 377. Under the FCA, FATA, and MFCA, the plaintiff must show that the false claims were presented to the government knowingly. See 31 U.S.C. § 3729(a)(1)(A), (B), and (G) (FCA) ; N.M. Stat. Ann. § 27-14-4(A), (C), (E) ; and N.M. Stat. Ann. § 44-9-3(A)(1), (2), (3), (8), and (9). According to the FCA, "knowing" and "knowingly"

(A) mean that a person, with respect to information-

(i) has actual knowledge of the information;

(ii) acts in deliberate ignorance of the truth or falsity of the information; or

(iii) acts in reckless disregard of the truth or falsity of the information; and

(B) require no proof of specific intent to defraud.

31 U.S.C. § 3729(b)(1). See also N.M. Stat. Ann. § 44-9-3(B) ("Proof of specific intent to defraud is not required for a violation of Subsection A of this section."). It is therefore not enough to submit a false claim; the relator must show that the defendant knowingly presented or submitted a false claim for payment. United States v. The Boeing Company , 825 F.3d 1138, 1148-49 (10th Cir. 2016). A claim is false under the FCA if a payee either submits an incorrect description of the goods or services provided or requests reimbursement for goods or services never provided. Id. at 1148. "A defendant's reasonable interpretation of any ambiguity inherent in the regulations belies the scienter necessary to establish a claim of fraud." United States ex rel. Miller v. Weston Educational, Inc. , 840 F.3d 494, 500 (8th Cir. 2016) (internal quotations omitted). If a relator succeeds on an FCA claim, the defendant is liable to the Government for a civil penalty between $5,000 and $10,000 for each violation (adjusted for inflation), treble damages, and costs, and the relator shares in the recovery. See Cook County, Ill. v. U.S. ex rel. Chandler , 538 U.S. 119, 123 & n.1, 123 S.Ct. 1239, 155 L.Ed.2d 247 (2003) (citing 31 U.S.C. §§ 3730(b) & (d), 3729(a) ).

Defendants first argue that there is no evidence that Dr. Shafer knowingly submitted false claims. Defendants have submitted the declaration of Dr. Shafer in which he averred that he never performed any dental treatment or procedure that he believed was unnecessary or not in a patient's best interests, or that he believed was below the standard of care. Decl. of Dr. Shafer ¶ 5, ECF No. 112-2. Dr. Shafer also stated that he never knowingly documented dental treatments that he did not actually perform and never knowingly documented sealants as fillings. Id. ¶ 6. Because the Court must view all inferences at this stage in favor of Plaintiff, the Court finds that the testimony of Dr. Moffat concerning the large number of Category A and Category B restoration billing errors is sufficient evidence from which a jury may infer that, contrary to his declarations, Dr. Shafer knowingly, rather than mistakenly, charted and documented dental treatments that he did not actually perform and knowingly documented sealants as fillings in those instances in Dr. Moffat's reports. The Court therefore finds that Dr. Shafer's intent when he charted incorrect billings that were submitted to Medicaid and whether he engaged in false or fraudulent billing practices are disputed facts for the jury to decide.

Defendants next argue that, even if there is a question of fact as to Dr. Shafer's knowledge, his purported knowledge is not sufficient to establish knowledge of Family Smiles. Plaintiff contends, however, that under the FCA, FATA, and MFCA, an employee's knowledge is imputed to the employer. Both parties agree that the Tenth Circuit has not yet directly addressed this issue.

Defendants assert that the Tenth Circuit has suggested that knowledge of management is necessary to establish vicarious liability for false claims, citing Shaw v. AAA Engineering & Drafting, Inc. , 213 F.3d 519, 534 n.18 (10th Cir. 2000). In a footnote, the Tenth Circuit rejected an argument by the defendants that they could not be held liable for false claims resulting from a failure to practice silver recovery because management did not know of the failure. Id. The Tenth Circuit merely concluded that the evidence showed management did know about the failure, so the case cannot be read to establish one way or the other the Tenth Circuit's view on what is necessary to impute a non-managerial employee's knowledge to an employer in the absence of evidence the employer knew of its employee's actions. See id.

Turning to out-of-circuit authority, Defendants rely on a district court case from Maryland holding that a corporate employer may be vicariously liable under the FCA for the misdeeds of a low-level employee who caused false claims to be filed without the knowledge or consent of her employer only if some degree of culpability can be ascribed to the employer. See United States v. Southern Maryland Home Health Services , 95 F.Supp.2d 465, 466 (D. Md. 2000). The district court held "that, at least when the recovery sought by the Government is substantially higher than its actual losses, an employer is not vicariously liable under the FCA for wrongful acts undertaken by a non-managerial employee unless the employer had knowledge of her acts, ratified them, or was reckless in its hiring or supervision of the employee." Id. at 468 (italics in original). The district court's analysis was based on its determination that the Government was essentially seeking punitive damages in the case where it sought well over a million dollars for only about $60,000 in actual losses. See id. at 469-73. The Southern Maryland court relied on Kolstad v. American Dental Assoc. , 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999), in which the Supreme Court applied common law principles of agency in a Title VII case to hold that an employer may not be vicariously liable for punitive damages based solely on the employee's apparent authority or acts committed within the scope of her employment. See id. at 469-70. The district court used the Restatement of Agency's "strict limitations" on the application of vicarious liability for punitive damages, requiring evidence that the principal authorized the wrongful act or was reckless in hiring or supervising the agent, that the agent acted in a managerial capacity within the scope of employment, or the principal or a managerial agent ratified the wrongful acts. Id. at 470.

The Southern Maryland court recognized that its holding was based on the assumption that FCA damages are punitive in nature and distinguished American Society of Mechanical Engineers v. Hydrolevel Corp. , 456 U.S. 556, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982) (" ASME "), in which the Supreme Court applied the apparent authority theory to bind an employer in an anti-trust case under a statute providing for treble damages. See id. at 471-72. The Supreme Court in ASME stated: "[A] principal is liable for an agent's fraud though the agent acts solely to benefit himself, if the agent acts with apparent authority." ASME , 456 U.S. at 566, 102 S.Ct. 1935. The Southern Maryland court determined that Kolstad limited the reach of ASME and that ASME was based on the goals of the antitrust statutes, noting that the FCA was comparatively more punitive. Southern Maryland , 95 F.Supp.2d at 472.

After Southern Maryland , the Supreme Court held that the term "person" in § 3729 of the FCA included local governments. Cook County , 538 U.S. at 134, 123 S.Ct. 1239. The County had argued that Congress's adoption of a "punitive" remedy in the form of increased fines and treble damages in its amendments to the FCA suggested that it did not intend to cover municipalities. See id. at 129-30, 123 S.Ct. 1239. In rejecting this argument, the Supreme Court explained:

Although we did indeed find the punitive character of the treble damages provision a reason not to read "person" to include a State, it does not follow that the punitive feature has the force to show congressional intent to repeal implicitly the existing definition of that word, which included municipalities. To begin with it is important to realize that treble damages have a compensatory side, serving remedial purposes in addition to punitive objectives. While the tipping point between payback and punishment defies general formulation, being dependent on the workings of a particular statute and the course of particular litigation, the facts about the FCA show that the damages multiplier has compensatory traits along with the punitive.

...The most obvious indication that the treble damages ceiling has a remedial place under this statute is its qui tam feature with its possibility of diverting as much as 30 percent of the Government's recovery to a private relator who began the action. In qui tam cases the rough difference between double and triple damages may well serve not to punish, but to quicken the self-interest of some private plaintiff who can spot violations and start litigating to compensate the Government, while benefiting himself as well.

Id. at 130-31, 123 S.Ct. 1239 (internal citations omitted).

In light of the Supreme Court's discussion of the compensatory traits of the FCA's damages provision, this Court is not convinced that the Southern Maryland court's reasoning remains sound. Moreover, the district court in Southern Maryland acknowledged the considerable authority that then-existed in the FCA context imposing vicarious liability on employers, even if the employee's actions did not benefit the employer, when the employee is acting within the scope of employment or with apparent authority. 95 F.Supp.2d at 467-68 (citing cases). Plaintiff relies on this contrary authority to support his position that Family Smiles may be held vicariously liable for Dr. Shafer's actions.

The purposes of the FCA are to make the government whole and deter fraud against it. United States v. O'Connell , 890 F.2d 563, 568 (1st Cir. 1989). The First Circuit, relying on ASME , concluded that the purposes of the FCA are served by imposing vicarious liability on an employer in order to deter violations and to protect the public. See id. at 567-69 (imputing liability to the corporation based on the acts of its general manager and one-third owner, even though manager's acts did not benefit the corporation). The Court finds the reasoning more persuasive in the majority of cases holding an employer vicariously liable whenever its employees act within the scope of employment or with apparent authority, regardless of the employer's knowledge or culpability, because it is more consistent with the purpose of the FCA to protect the property of the government. See , e.g. , O'Connell , 890 F.2d at 569 ("We hold that a corporation should be held liable under the False Claims Act for the fraud of an agent who acts with apparent authority even if the corporation received no benefit from the agent's fraud."); Grand Union Co. v. United States , 696 F.2d 888, 890-91 (11th Cir. 1983) (holding that knowledge would only be imputed to employer if employee acted within scope of employment and with purpose of benefitting employer); United States v. Hangar One, Inc. , 563 F.2d 1155, 1158 (5th Cir. 1977) (holding that liability of corporation for FCA violation may arise from conduct of employees other than those with substantial authority and broad responsibility if employees were acting within scope of employment and for the purpose of benefitting corporation). See also In re ChinaCast Educ. Corp. Securities Litigation , 809 F.3d 471, 476-78 (9th Cir. 2015) (relying on ASME in part in imputing scienter of senior level employee to corporate employer for federal securities law violations where employee acted within scope of apparent authority). Under the facts construed in favor of Plaintiff, a reasonable jury could conclude that Dr. Shafer acted within the scope of his employment and/or with apparent authority, as well as for the benefit of Family Smiles.

Finally, Defendants argue that there is no evidence that other managers knew of purported problems with Dr. Shafer's billing practices at the time Dr. Shafer worked there. Plaintiff's alleged notification occurred well after Dr. Shafer had left. Defendants contend that knowledge allegedly acquired by managers after claims were submitted is irrelevant to whether purportedly false claims for treatments by Dr. Shafer were made knowingly. Defendants, however, cite no legal authority for this proposition. In light of the law on vicarious liability, the Court is not convinced the purported timing problem arising from the fact that Dr. Shafer no longer worked for Family Smiles when Plaintiff notified managers of the purported false billing precludes liability. For all the foregoing reasons, Defendant Family Smiles is not entitled to summary judgment on the FCA, FATA, and MFCA claims.

(2) Reverse False Claims (Counts 3, 6, 10-12)

Section 3729(a)(1)(G) provides liability to the United States Government for any person who

knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.

31 U.S.C. § 3729(a)(1)(G). " Section 3729(a)(1)(G) is known as the 'reverse false claims' section of the FCA, because it targets a defendant's 'fraudulent effort to reduce a liability owed to the government rather than to get a false or fraudulent claim allowed or paid.' " United States v. Simparel, Inc. , Civ. Action No. 13-2415, 2015 WL 7313861, at *4 (D.N.J. Nov. 20, 2015) (quoting U.S. ex rel. Atkinson v. PA. Shipbuilding Co. , 473 F.3d 506, 514 n.12 (3d Cir. 2007) ). The parties agree that to establish liability on a reverse false claims act cause of action a plaintiff must prove (1) there is an obligation to pay or transmit money or property, (2) to the Government, which the defendant (3) knowingly and improperly (4) avoided or decreased. See 31 U.S.C. § 3729(a)(1)(G). See also N.M. Stat. Ann. § 27-14-4(E) (making it unlawful for person to conceal, avoid, or decrease an obligation to pay or transmit money or property to State related to Medicaid); N.M. Stat. Ann. § 44-9-3(A)(9) (FATA penalizes "a beneficiary of an inadvertent submission of a false claim [who] having subsequently discovered the falsity of the claim, fail[s] to disclose the false claim to the state or political subdivision within a reasonable time after discovery"). The parties disagree, however, as to the meaning of "obligation."

The FCA defines the term "obligation" as "an established duty, whether or not fixed, arising ... from the retention of any overpayment." 31 U.S.C. § 3729(b)(3) (2009). The regulations for reporting and returning overpayments state:

A person has identified an overpayment when the person has, or should have through the exercise of reasonable diligence, determined that the person has received an overpayment and quantified the amount of the overpayment. A person should have determined that the person received an overpayment and quantified the amount of the overpayment if the person fails to exercise reasonable diligence and the person in fact received an overpayment.

42 C.F.R. § 401.305(a)(1). A person who has received an overpayment must report and return it to the Health and Human Services Secretary, the State, or other appropriate entity within "60 days after the date on which the overpayment was identified." 42 U.S.C. § 1320a-7k(d)(2)(A) ; 42 C.F.R. § 401.305(b)(1)(i). "Any overpayment retained by a person after the deadline for reporting and returning the overpayment specified in paragraph (b) of this section is an obligation for purposes of 31 U.S.C. 3729." 42 C.F.R. § 401.305(e).

Defendants argue that no "obligation" arises until the provider has "identified" the overpayment, in other words, until the provider has quantified a specific overpayment relating to a specific claim. Defendants assert there is no evidence that any employee determined there were overpayments arising from treatments by Dr. Shafer. Plaintiff contends that, even assuming "identification" is a required element, the element is satisfied by showing that the person "fail[ed] to exercise reasonable diligence and the person in fact received an overpayment."

Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that Family Smiles received an overpayment. See discussion of Dr. Moffat testimony supra . The failure to exercise reasonable diligence question is much closer. Dr. Hernandez-Gil's declaration states (i) he informed Ms. Pinto and Mr. Sandoval about false billing practices; (ii) Mr. Sandoval replied that Ms. Pinto, Sameera Hussain and Khurram were all aware of the practices, yet Sameera and Khurram would not allow an investigation or audit into the fraudulent billing because it would cost too much money; (iii) Mr. Sandoval explained that the company used employment contracts in which dentists could not leave the company without giving notice a very significant period of time in advance, provisions the company would use to force the dentists that wanted to leave sooner to meet certain performance goals to gain an early release; and (iv) Mr. Sandoval said that performance goals were so high that they virtually required fraud be committed by those dentists. Viewing every inference in Plaintiff's favor, as the Court must, a jury could infer from this evidence that Family Smiles management knew it received overpayments and took no steps to investigate, quantify, report, or return the overpayments. Cf. United States v. Crumb , CIVIL ACTION 15-0655-WS-N, 2016 WL 4480690, at *17 (S.D. Ala. Aug. 24, 2016) (refusing to dismiss reverse false claim count where complaint alleged that defendants had actual knowledge of improper claim submissions and attendant overpayments by no later than 2010, yet failed to conduct any investigation or make any repayment at all (and even then, nothing more than partial repayment) until June 2015).

Finally, Defendants argue that Plaintiff has no evidence that they acted "improperly," which they define as acting in a way that was inherently tortious, illegal, or malum in se . Again, if the jury finds Plaintiff's evidence credible, it could conclude that Family Smiles managers knew Family Smiles received overpayments from Dr. Shafer's false billing and failed to return and report the overpayments, thus improperly avoiding repaying the Government, in violation of 42 U.S.C. § 1320a-7k(d)(1). For all the foregoing reasons, the Court will deny summary judgment to Defendant Family Smiles on the reverse false claims counts.

b. Burden-Shifting Claims

A plaintiff who lacks direct evidence of intentional discrimination under the ADA, Title VII, and NMHRA and who lacks direct evidence of retaliatory intent may submit circumstantial evidence using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Harrington v. Aggregate Industries Northeast Region, Inc. , 668 F.3d 25, 31 (1st Cir. 2012) (apply McDonnell Douglas analysis to retaliation claims under FCA); E.E.O.C. v. Horizon/CMS Healthcare Corp. , 220 F.3d 1184, 1192 (10th Cir. 2000) (Title VII). See also DePaula v. Easter Seals El Mirador , 859 F.3d 957, 968-69 (10th Cir. 2017). The critical inquiry is whether the plaintiff has demonstrated that the termination occurred under circumstances giving rise to an inference of unlawful discrimination or of unlawful retaliation. DePaula , 859 F.3d at 970 ; U.S. ex rel. Schweizer v. Oce N.V. , 677 F.3d 1228, 1237-38 (D.C. Cir. 2012) (FCA retaliation). If a plaintiff establishes a prima facie case of discrimination or retaliation, the burden of production shifts to the defendant to offer a legitimate, nondiscriminatory rationale for the adverse employment action. DePaula , 859 F.3d at 970 ;

Horizon , 220 F.3d at 1191 ; Schweizer , 677 F.3d at 1241. "The defendant's burden is exceedingly light, as its stated reasons need only be legitimate and non-discriminatory on their face." DePaula , 859 F.3d at 970 (internal quotations and citations omitted). The defendant's burden is one of production, involving no credibility assessments, and is met if the defendant provides admissible evidence of a legally sufficient explanation for the employment action that raises a genuine issue of material of fact as to whether the defendant discriminated against the plaintiff. Id.

If the defendant meets its burden of articulating a facially non-discriminatory reason for the adverse action, the plaintiff must show that the defendant's proffered rationale is pretextual by a preponderance of the evidence. Id. ; Horizon , 220 F.3d at 1191. Pretext can be shown through evidence of weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered reasons that a reasonable jury could rationally find to be unworthy of credence or through evidence that the employer acted contrary to a policy or practice when making the adverse employment decision. See DePaula , 859 F.3d at 970. The court does "not ask whether the employer's reasons were wise, fair or correct; the relevant inquiry is whether the employer honestly believed its reasons and acted in good faith upon them." Riggs v. AirTran Airways, Inc. , 497 F.3d 1108, 1118-19 (10th Cir. 2007). Although the court must construe all facts favorably to Plaintiff, in evaluating pretext arguments, the court must consider the facts as they appeared to decision-makers. Bennett v. Windstream Communications, Inc. , 792 F.3d 1261, 1268 (10th Cir. 2015).

(1) Retaliation Claims under the FCA, MFCA, and FATA (Counts 13-15)

In his response, Plaintiff states that he is now only pursuing his retaliation claims in Counts 13-15 against Defendants "Family Smiles, Khurram Hussain, Dental Dreams a.k.a. Dental Experts, LLC, and KOS Services." Pl.'s Resp. 18 n.2. The Court will therefore dismiss Counts 13-15 against Defendants Sameera Hussain; Dental Dreams, LLC, a New Mexico limited liability company; and Frank Von Westernhagen, and turn to the merits of this claim against the remaining defendants.

The FCA provides whistleblower protections for an employee who is terminated, threatened, harassed, or otherwise discriminated against in the terms and conditions of his employment because of a lawful act taken "in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter." 31 U.S.C. § 3730(h)(1) (2012) (as amended effective May 2009). To state an FCA retaliation claim, a plaintiff must show (1) he took action in furtherance of an FCA enforcement action, (2) his employer had notice that he was taking action in furtherance of a private qui tam action or assisting the government in bringing an FCA action; and (3) he was discharged or discriminated against because of the protected conduct. See McBride v. Peak Wellness Center, Inc. , 688 F.3d 698, 704 (10th Cir. 2012). The MFCA and FATA contain similar anti-retaliation provisions. See N.M. Stat. Ann. § 27-14-12, § 44-9-11(B).

An employee does not need to have filed a qui tam action for whistleblower protection. McBride , 688 F.3d at 704. Notice that informs the employer merely of regulatory violations without giving a suggestion that the plaintiff is going to report the non-compliance is insufficient. Id. On the other hand, notice may be satisfied by informing the employer that its illegal activities constitute fraud on the United States, by warning the employer of regulatory noncompliance and false reporting of information to a government agency, or by explicitly informing the employer of an FCA violation. Id.

In this case, Plaintiff avers he reported the fraudulent billing practices of Dr. Shafer to Mr. Sandoval, the Atrisco Office manager, to Edith Pinto, the Regional Manager of the New Mexico clinics, and to Ann Patrone, Special Projects Manager. See Decl. of Dr. Hernandez-Gil ¶¶ 10-16, ECF No. 123-3; Verified Compl. ¶¶ 186-87. According to Plaintiff, he specifically used the word "fraud" and "illegal" and discussed the need for an investigation or audit. See Decl. of Dr. Hernandez-Gil ¶¶ 17-18, ECF No. 123-3. When Mr. Sandoval told Plaintiff that the company wanted him to do the missing work and fill out a form, Plaintiff said the company's response was inadequate in law and it must report it and do an audit. Id. ¶25. This evidence is not merely of a passing reference of a regulatory violation, but rather, indicates repeated attempts to notify management of an FCA violation and to have them conduct an audit and report it, creating questions of fact as to whether Plaintiff took action in furtherance of a qui tam action and whether his employer had notice of Plaintiff's protected conduct.

Defendants additionally assert that the causation element cannot be satisfied because Plaintiff has no evidence that Khurram Hussain, who fired Plaintiff, knew of Plaintiff's reports of fraudulent acts and the need for an audit. To satisfy the causation element, a plaintiff must demonstrate that the person who took the adverse action against him knew of the employee's protected activity, or that the person allegedly harboring the discriminatory animus knew and used the person who effected the adverse action as the "cat's paw" to affect his own discriminatory designs. Cf. Montes v. Vail Clinic, Inc. , 497 F.3d 1160, 1176 (10th Cir. 2007) (Title VII). Temporal proximity between protected activity and the adverse action may permit an inference of causation. Hysten v. Burlington Northern and Santa Fe Ry. Co ., 296 F.3d 1177, 1183-84 (10th Cir. 2002).

Plaintiff submitted evidence that he reported the fraud to Mr. Sandoval, Ms. Pinto, and Ms. Patrone; Mr. Sandoval told him that "the company" wanted him to do the missing work, fill out a form, and allow his production to be credited with the work; and that on two occasions, he filled out forms reporting falsely certified work, which were pre-addressed to Defendant Sameera Hussain. See Decl. of Dr. Hernandez-Gil ¶¶ 10-27, ECF No. 123-3. Mr. Sandoval and Ms. Patrone were part of the conversation in which Mr. Hussain fired Plaintiff. Plaintiff reported the fraudulent activity within days of being fired-a very close connection in time. Again, this is a close evidentiary issue, but viewing all the evidence and the inferences to be derived therefrom in favor of Plaintiff, a jury may infer that Mr. Hussain was aware of Plaintiff's reports of Medicaid fraud or that Mr. Sandoval or Ms. Patrone affected the firing because of Plaintiff's repeated reports of Medicaid fraud.

Defendants argue that the evidence conclusively establishes that Plaintiff was fired for insisting on bringing his dog to work and for unprofessional behavior, not for attempting to further an FCA action. Although Defendants have met their burden of production in showing a reason for firing Plaintiff apart from retaliation, as discussed in more detail below, questions of fact exist for a jury's determination as to whether Defendants' reason for firing Plaintiff over Boscoe was legitimate or if it was pretextual. The timing of Plaintiff's firing, within days of his raising issues of government fraud to managers, is evidence of pretext sufficient to send the issue to a jury for resolution. Cf.

Foster v. Mountain Coal Co. , 830 F.3d 1178, 1191 (10th Cir. 2016) ("Because the purported protected activity here occurred mere days or even hours before the adverse employment action, we conclude that Foster can show causation at the prima facie stage solely with evidence of temporal proximity."); Schweizer , 677 F.3d at 1239-40 (explaining that jury could reasonably find that employer discharged employee because of lawful acts she took in furtherance of FCA suit where there was evidence that employee alleged variety of specific false claims act violations to supervisors and the company fired her less than two weeks later).

Defendant Family Smiles was undisputedly Plaintiff's employer, so the Court will deny summary judgment on Counts 13-15 to Defendant Family Smiles. As to Defendants Khurram Hussain; Dental Dreams a.k.a. Dental Experts, LLC, an Illinois limited liability company, and KOS Services, LLC, the Court will consider the arguments pertaining to their liability infra .

(2) ADA (Count 16)

Plaintiff asserts in Count 16 that Defendants violated the ADA by terminating his employment because of his disability and in failing to reasonably accommodate him with respect to his disability. Defendants argue that Khurram Hussain fired Dr. Hernandez-Gil because he refused to stop bringing his dog to the dental clinic, was unwilling to discuss alternative arrangements for housing the dog, and because he had been rude and unprofessional to both staff and patients, resulting in patient complaints. See Decl. of Khurram Hussain ¶ 3, ECF No. 112-5.

(a) Failure to Accommodate

For a failure-to-accommodate claim, the Tenth Circuit has adopted a modified burden-shifting framework in which a disabled plaintiff may make a prima facie case of employment discrimination under the ADA by showing that (1) he is disabled; (2) he is otherwise qualified; and (3) he requested a plausibly reasonable accommodation. Punt v. Kelly Services , 862 F.3d 1040, 1050 (10th Cir. 2017). To make a prima facie showing that the accommodation request was reasonable, a plaintiff need only show that the accommodation seems reasonable on its face. See U.S. Airways, Inc. v. Barnett , 535 U.S. 391, 401-02, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002). "Once the employee produces evidence sufficient to make a facial showing on ... her prima facie case, the burden of production shifts to the employer to present evidence either (1) conclusively rebutting one or more elements of plaintiff's prima facie case or (2) establishing an affirmative defense, such as undue hardship or one of the other affirmative defenses available to the employer." Punt , 862 F.3d at 1050. Accord Hwang v. Kansas State University , 753 F.3d 1159, 1161 (10th Cir. 2014). If the employer satisfies its burden, summary judgment will be appropriate for the employer unless the employee presents evidence establishing a genuine dispute regarding the affirmative defense and/or rehabilitates any challenged element of his prima facie case to create a genuine dispute of material fact on the elements. Punt , 862 F.3d at 1050.

Defendants argue that the accommodation Plaintiff demanded was unreasonable and imposed an undue hardship. They assert that Plaintiff demanded that Boscoe be housed in the clinic's only office, in which he barricaded the door with a gate and got angry when others tried to open the gate, making it difficult for others to use the office. Defendants contend that Boscoe was not a service dog, because he was "in training" and thus the presence of a non-service dog in the office was not a plausibly reasonable accommodation. Plaintiff responds that there is evidence that Boscoe was a service dog in training, and thus, there is a question of fact as to whether Boscoe's presence in the office was a reasonable accommodation for his disability.

The parties have not cited any federally-mandated animal training standards; instead, there do not appear to be any. See Cordoves v. Miami-Dade County , 92 F.Supp.3d 1221, 1230 (S.D. Fla. 2015) ("there are no federally-mandated animal training standards") (quoting Prindable v. Ass'n of Apartment Owners of 2987 Kalakaua , 304 F.Supp.2d 1245, 1256 (D. Haw. 2003) ). In the context of Title III of the ADA, regarding nondiscrimination on the basis of disability by public accommodations, a public accommodation must modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. 28 C.F.R. § 36.302(c)(1). According to the Department of Justice ("DOJ") definitions, a "service animal" is "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability." 28 C.F.R. § 36.104. Work or tasks performed by a service animal must be directly related to the person's disability, and may include helping persons with psychiatric disabilities by preventing or interrupting impulsive or destructive behaviors. Id. The provision of emotional support, well-being comfort, or companionship does not constitute work by a service animal. Id.

In another related context, the Fair Housing Act ("FHA") prohibits discrimination against persons with disabilities, including "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford" a disabled person "equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). The Department of Housing and Urban Development ("HUD"), the agency charged with administering the FHA, has provided guidance regarding service animals, using a broader definition of "assistance animal" than the DOJ's "service animal" test. See Arnal v. Aspen View Condominium Association, Inc. , 226 F.Supp.3d 1177, 1184 (D. Colo. 2016) (citing HUD Office of Fair Housing & Equal Opportunity, FHEO Notice FHEO-2013-01). HUD defines an assistance animal as any animal that "works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person's disability." HUD Notice FHEO 2013-01, at 2, April 25, 2013, U.S. Department of Housing and Urban Development Archives, found at https://search.usa.gov/search?affiliate=archives.hud.gov&query=FHEO-2013-01. "For purposes of reasonable accommodation requests, neither the FHAct nor Section 504 requires an assistance animal to be individually trained or certified." Id. HUD requires a modification of a "no pets" rule where the person has a disability and has a disability-related need for an assistance animal, unless doing so would impose an undue burden. See id. at 2-3.

It is unclear whether the EEOC would follow the more stringent "service animal" definition set forth by the DOJ or HUD's interpretation of assistance animal in the "reasonable accommodation" housing context. Nevertheless, when courts have analyzed the issue of whether a dog is a "service animal" under Title III of the ADA, they have not required the plaintiff on summary judgment to proffer documented evidence of training, or to show that the dog was trained by a "certified trainer," rather than individually trained at home. Cordoves , 92 F.Supp.3d at 1230 (and cited cases). There are no specific requirements as to the amount or type of training for a dog to be deemed a "service animal," but the dog should be trained to perform tasks or do work for the benefit of the disabled person, which has been described as a "low bar" and "not a taxing requirement." Id. To survive summary judgment, a plaintiff must provide evidence of specific work or tasks the animal was trained to perform for the plaintiff's benefit. Id. at 1231. A plaintiff must show that the animal has already been trained to do the task; merely being still in training is not sufficient. Id. at 1231. The Court finds this law persuasive in determining whether the use of Boscoe in the office was a plausibly reasonable accommodation. See McDonald v. Department of Environmental Quality , 351 Mont. 243, 214 P.3d 749, 762 (2009) (considering Title III regulations pertaining to service animals as persuasive authority to extent they are not inconsistent with Title I regulations and Montana Human Rights Act).

It is undisputed that Boscoe was "in training" and his training would not be complete for up to a year after May 2013. Although Boscoe did not have documentation to show completed training, that alone does not preclude a jury from finding Boscoe to be a service animal so long as, at the time of the events at issue, he was trained to perform tasks and work for the benefit of Plaintiff in alleviating his General Anxiety Disorder or PTSD. Plaintiff has provided evidence in the form of his own testimony of how Boscoe, at the time of his employment, was capable of detecting Plaintiff's panic attack, cuing Plaintiff if he could see Boscoe, and minimizing or alleviating the panic attacks for Plaintiff, if