SARAH EVANS BARKER, JUDGE

Christopher S. Stake, Kathleen Ann DeLaney, DeLaney & DeLaney LLC, Indianapolis, IN, for Plaintiff.

Hannesson Ignatius Murphy, Kenneth J. Yerkes, Koryn Michelle McHone, Patricia L. Ogden, Barnes & Thornburg, LLP, Indianapolis, IN, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

* * * SEALED * * *

SARAH EVANS BARKER, JUDGE

This cause is before the Court on Defendant Roche Diagnostic Corporation's ("Roche") Motion for Summary Judgment, [Dkt. 72], filed on July 22, 2019, pursuant to Federal Rule of Civil Procedure 56. Plaintiff Robin Trupp, Ph.D, initiated this action on August 8, 2018, [Dkt. 1], alleging that Roche retaliated against her in violation of the False Claims Act, 31 U.S.C. § 3729 et seq. , and the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. For the reasons detailed below, we grant Roche's Motion for Summary Judgment. Background

I. Dr. Trupp's Employment with Roche

Roche is a global diagnostics company that manufacturers medical devices and immunoassays, which are subject to regulations of the U.S. Food and Drug Administration ("FDA"). [Dkt. 75-13, at 2]. Roche's primary clientele is health care providers, including hospitals. Dr. Trupp was employed by Roche as the Director of Medical and Scientific Affairs ("MSA"), Cardiac from July 2015 until November 30, 2018. [Dkt. 75-13, at 5, 10-11; Dkt. 83-1, at 3, 20]. As the Director of MSA, Cardiac, Dr. Trupp supervised a team of medical and scientific professionals; managed an annual operating budget of [redacted]; provided expertise for product development, and served as a liaison to Roche's Global Clinical and Medical groups. [Dkt. 75-13, at 5; Dkt. 83-1, at 4]. On November 13, 2018, Dr. Trupp was offered the position of Director of Medical Access, which she accepted on November 30, 2018. To date, she remains employed at Roche as the Director of Medical Access. [Dkt. 75-13, at 10-11].

II. The Gen 5 STAT Immunoassay

As Roche describes, an "assay" is a term used "generally to define a blood test run on a patient's blood sample to quantify levels of the substance." [Dkt. 75-13, at 3; Dkt. 83-1, at 5]. For example, the Gen 5 STAT immunoassay—the device which, as will be further discussed hereafter, initially sparked controversy between Roche and Dr. Trupp—measures cardiac troponin and is utilized by health care providers to aid in the diagnosis of heart attacks. [Dkt. 75-13, at 3; Dkt. 83-1, at 5]. The assay is not intended to be used on its own to diagnose a heart attack ; the results should "always be correlated with the patient's medical history, presentation, EKG, and other imaging data." [Dkt. 75-13, at 3].

In January 2017, following seven years of a "rigorous approval process," Roche received clearance from the FDA for the use of the Gen 5 STAT immunoassay on two Roche instruments, the e411 and the e601/602. [Id. ]. The FDA also granted approval for one product insert to be included with the assay for both instruments. The product insert described the differences in the two instruments, addressing when the instruments perform comparably within an acceptable range of variation. [Id. , at 3-4]. Additionally, the product insert outlines the recommended purpose of the assay. [Id. ]. Notwithstanding Roche's recommended use of the assay, the FDA permits medical professionals to use the assay in any manner they deem medically appropriate in the practice of medicine, even if it is inconsistent with the directive as provided in the product insert. [Id. ]. Such use would be considered "off-label." [Id. at 5]. However, Roche is prohibited from promoting the off-label use of its products. [Id. at 22].

III. Facts Giving Rise to Dr. Trupp's Claim for FCA Retaliation

In or around February 2018, one of Dr. Trupp's subordinates, Carmen Wiley, Ph.D, developed concerns that Roche [redacted] Following her review of a Roche document that [redacted] [Dkt. 83-1, at 5-6]. Specifically, she realized that the e411 instrument used at two-step process for the assay, whereas the e601/e602 instrument used a one-step process. [Dkt. 75-13, at 12; Dkt. 83-1, at 6]. In practice, if Roche's customers (i.e., health care providers) were to use the assay in an off-label manner, [redacted] "erroneous clinical decisions could be made" and "there may be an increased risk of missing a heart attack diagnosis." [Dkt. 83-1, at 6-7].

Dr. Wiley thus advocated for [redacted] [Dkt. 75-13, at 12; Dkt. 83-1, at 5]. Although the single product insert supplied with both instruments notified users of [redacted] Dr. Wiley remained concerned that customers "may not pay close attention to" the information as presented. [Dkt. 75-13, at 12; Dkt. 83-1, at 8]. She thus "felt strongly that [Roche] should provide more education and be more transparent with customers." [Dkt. 83-1, at 8]. However, Dr. Wiley asserts that her initial inquiries suggesting the need for increased education were "downplayed." [redacted] [Dkt. 83-1, at 7].

On February 16, 2018, Dr. Wiley reported her concerns to Dr Trupp. [Dkt. 83-1, at 8]. Finding that a "vast majority" of Roche customers were using the assay off-label, Dr. Trupp came to share Dr. Wiley's concerns. [Id. ] Thus, the pair felt compelled to report this issue to their higher-ups at Roche, but because Roche had undertaken such an arduous process to gain FDA approval for the assay, Dr. Wiley and Dr. Trupp feared Roche would retaliate against them for raising any issues with the product, and specifically, [redacted] [Id. at 9]. On March 27, 2018, purportedly fearing retaliation, Dr. Trupp and Dr. Wiley sought advice from Roche's Vice President for Law and Ethics Compliance, Steve Oldham, about their concerns. [Id. ] Mr. Oldham assured Dr. Trupp and Dr. Wiley that they were acting appropriately, vowing to protect them against any retaliation. [Id. ]

That same day, following their receipt of Mr. Oldham's assurances, Dr. Trupp and Dr. Wiley conferred with Dr. Alan Wright, Roche's Chief Medical Officer. [Id. at 9]. Per Dr. Wright's directive, Dr. Trupp and Dr. Wiley organized a larger group meeting to discuss the issue. [Dkt. 75-13, at 12; Dkt. 83-1, at 9-10]. The meeting included members from the sales, marketing, and MSA departments. No regulatory affairs staff people were included; Dr. Wright had determined, with Dr. Trupp's concurrence, that because the matter did not invoke regulatory concerns but rather post-clearance customer education issues, regulatory affairs staff members did not need to be invited. [Dkt. 75-13, at 12; Dkt. 83-1, and 9-10]. At the time of the March 22, 2018, meeting, neither Dr. Trupp nor Dr. Wiley expressed concerns that Roche had misrepresented the functionality of its product to the FDA, nor did either share any concerns that Roche or its customers were participating in any kind of fraudulent conduct. [Dkt. 75-13, at 13].

In the months following the March 2018 meeting, Roche directed its Global Core Team to coordinate with personnel in Regulatory Affairs and Marketing to address Dr. Trupp and Dr. Wiley's concerns. [Dkt. 75-13, at 12]. Following the Global Core Team's evaluation of the matter, Roche concluded that the issues raised by Dr. Wiley and Dr. Trupp did not affect its customers' clinical decision making, and established a process by which customer inquiries could be addressed if and when they were received. [Dkt. 75-13, at 14].

According to Dr. Trupp, her upward reporting of the issue resulted in an array of negative reactions to her at Roche, confirming her fears that retaliation would likely ensue as a consequence of her speaking up. [Dkt. 83-1, at 11-13]. Specific acts of retaliation against her, as identified by Dr. Trupp, included "being excluded from calls, not invited to meetings, being ignored, and being yelled at." [Id. at 12]. Dr. Trupp also believes that her supervisor, Dr. Christopher Bird, embarked on an internal campaign against her. [Id. at 13]. For example, on May 1, 2018, Dr. Bird told Dr. Wright, "We have to fire Robin this week," and requested that Roche employees report any complaints about Dr. Trupp directly to him. Id. In April 2018, Roche began investigating Dr. Trupp's complaints of retaliation and finished its investigation in or around June 2018, finding that no retaliation had occurred but acknowledging that certain employees had "behave[d] badly." [Dkt. 75-13, at 16].

IV. Facts Giving Rise to Ms. Trupp's Claim for FMLA Retaliation

In July 2018, Dr. Trupp sought and received approval to take FMLA leave. [Dkt. 75-13, at 8-9; Dkt. 83-1, at 16]. She received her full salary for the duration of her leave, which was extended several times. [Dkt. 75-13, at 9].

Dr. Trupp was released to work with no restrictions on August 13, 2018. [Dkt. 83-1, at 17]. She returned to work that day and resumed her role as Director of Medical and Scientific Affairs. [Id. ] However, Dr. Trupp contends that when she returned her job had "changed." She was excluded from MSA leadership meetings, and Dr. Bird canceled her flight to attend a conference, directing her to "sit and catch up on emails." [Id. ] Additionally, Dr. Bird was reportedly scouting out potential candidates to replace Dr. Trupp. Indeed, while Dr. Trupp was on FMLA leave, Dr. Bird inquired of a Roche employee whether she would be interested in Dr. Trupp's position. The employee declined an interest. [Dkt. 83-1, at 16-17].

On August 31, 2018, Dr. Trupp was placed on administrative leave, which according to Roche, was a consequence of her performance deficiencies. [Dkt. 75-13, at 10, Dkt. 83-1, at 17-18]. Her salary and benefits were uninterrupted during the period of administrative leave. [Dkt. 75-13, at 10]. Roche's internal personnel policies provide for administrative leave, but there are few details of that policy delineated. And, while Roche employs a corrective action policy that utilizes various steps of progressive discipline, Dr. Trupp's supervisors had taken no formal corrective action prior to placing her on administrative leave. [Dkt. 83-1, at 17-18]. Dr. Wright claims that he did not consider Dr. Trupp's administrative leave to be disciplinary; rather, his stated goal was to "interrupt the pattern of disruptive behavior and identify a way to help [her] succeed." [Dkt. 75-13, at 10].

On November 13, 2018, during her administrative leave, Dr. Wright offered Dr. Trupp the position of Director of Medical Access, believing that it would be a "good fit." [Dkt. 75-13, at 10-11; Dkt. 83-1, at 19]. He testified that he hoped the role would provide her with a fresh start and new colleagues. [Dkt. 75-5, Exh. 4 at 142.]. At the time that Dr. Trupp was offered the position, it had not yet been finalized or posted internally, even though Roche policy requires internal jobs postings for all open positions. [Dkt. 83-1, at 19-20]. Dr. Trupp did not believe she was qualified for the position; nonetheless, she accepted the offer on November 30, 2018, and when she returned from administrative leave on December 3, 2018, she took over duties as Director of Medical Access. [Id. ] As Director of Medical Access, Dr. Trupp maintains all benefits and bonus opportunities of her former position. [Dkt. 75-13, at 11]. Her annual salary was increased by [redacted] and her most recent bonus exceeded the amount previously received as the Director of MSA, Cardiac. [Dkt. 75-13, at 11]. She no longer manages a team nor a budget, and while she claims she was told she would remain a part of the MSA Team, that has not occurred. [Dkt. 83, at 20-21]. This lawsuit has ensued.

Analysis

I. Standard of Review

Summary judgment is appropriate where there are no genuine disputes of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A court must grant a motion for summary judgment if it appears that no reasonable trier of fact could find in favor of the nonmovant on the basis of the designated admissible evidence. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We neither weigh the evidence nor evaluate the credibility of witnesses, id. at 255, 106 S.Ct. 2505, but view the facts and the reasonable inferences flowing from them in the light most favorable to the nonmovant. McConnell v. McKillip , 573 F. Supp. 2d 1090, 1097 (S.D. Ind. 2008).

II. Discussion

A. Dr. Trupp's FCA Retaliation Claim Fails Because She Did Not Engage in "Protected Conduct"

The FCA establishes liability for any person who knowingly submits a false or fraudulent claim for payment to the government. 31 U.S.C. § 3729(a). The FCA provides that "[a]ny employee ... shall be entitled to all relief necessary to make that employee ... whole, if that employee ... is discharged, demoted, suspended, threatened, harassed, or ... discriminated against in the terms and condition of employment because of lawful acts done by the employee ... or associated others" in furtherance of an FCA action. 31 U.S.C. § 3730(h)(1) (2010).

To prevail on her FCA claim, Dr. Trupp must prove that she was engaged in protected conduct and that she suffered adverse employment action because of that conduct. United States ex rel. Uhlig v. Fluor Corp. , 839 F.3d 628, 635 (7th Cir. 2016). Protected conduct includes the pursuit of an action under the FCA, or undertaking efforts, including investigatory efforts, to stop FCA violations. To determine whether Dr. Trupp engaged in protected conduct, we evaluate both the subjectivity and objectivity of her actions, assessing whether: "(1) the employee in good faith believes, and (2) a reasonable employee in the same or similar circumstances might believe, that the employer is committing fraud against the government." Id. With regard to the second, "objective" prong, "we look to the facts known to the employee at the time of the alleged protected activity." Id. Dr. Trupp claims that she engaged in protected conduct on two occasions: first, when she internally reported her concerns related to the off-label use of the assay, and second, when she initiated this lawsuit alleging FCA retaliation. [Dkt. 83-1, at 22-23]. We apply the two-prong test to both of these acts to determine whether they qualify as "protected conduct."

Before delving into whether Dr. Trupp's activities amounted to "protected conduct," we shall address the alleged "fraud on the government" underlying Dr. Trupp's FCA retaliation claim. In assessing the viability of her retaliation claim, we take into account the narrow field of liability established by the FCA, that is, liability for individuals who knowingly submit false claims for payment to the government. Stated otherwise, it simply is not "an all-purpose antifraud statute." Universal Health Servs., Inc. v. United States , ––– U.S. ––––, 136 S. Ct. 1989, 2003, 195 L.Ed.2d 348 (2016). Additionally, "the False Claims Act does not prohibit retaliation for any kind of complaint about improper behavior made by an employee; the improper behavior must relate to claims for money from the federal government." Boyd v. Keystone Const. , 2015 WL 4427630, at *3 (S.D. Ind. July 20, 2015). With these limitations of the FCA in mind, we move forward to analyze Dr. Trupp's FCA retaliation claim.

In Dr. Trupp's complaint, she asserts:

The majority of U.S. hospitals that have implemented Roche's assay are doing so in an "off-label" manner, resulting in the second assay being drawn and tested at less than three hours, for reasons which are not medically necessary, when treating recipients of Medicare and/or Medicaid, and have accepted Medicare and/or Medicaid payments from the U.S. for such off-label use.

[Dkt. 30-1, ¶ 23]. Prior to the filing of her complaint, Dr. Trupp never expressed any concerns referencing Medicare/Medicaid billing practices as a consequence of the off-label use of Roche's assay, [Dkt. 75-13, at 16]; nonetheless, she now maintains that her reported concerns with respect to the off-label use of the assay implicate the FCA in this context. As explained in her opposition brief:

Roche's customers (medical providers) undeniably submit claims to the U.S. Government for the payment of money in connection with the use of Roche products in their delivery of patient care. If Roche omitted material information in their communications with customers, which the customers then relied upon in making clinical decisions to use a Roche product in an "off-label manner," then Roche's omissions could cause FCA violations in the submission of claims for payment of Medicare or Medicaid claims. Trupp advocated for greater transparency with customers, which could improve patient care and prevent the submission of false claims.

[Dkt. 83-1, at 2]. She further states:

The assay is used with various patient populations, but Medicare-eligible people tend to suffer from heart attacks or other heart problems more often than other patients. When a hospital or laboratory uses the assay in connection with treatment of a Medicaid or Medicare patient, it bills the government for those services. There is potential for fraudulent billing when the institutions are using the assay off-label and do not have complete information about the assay.

[Dkt. 83-1, at 7.] Accordingly, Dr. Trupp's concerns "were not based on Roche's direct communications with the government, but on Roche's communications with customers, who then communicated with the government or billed the government for services performed." [Dkt. 83-1, at 23]. The "false claims for payment" would thus be any improper claims for Medicare reimbursement made by Roche's customers. Dr. Trupp nonetheless concedes that Roche is prohibited from promoting the off-label of its assay, that Roche is not involved with the billing practices of its customers, and that she has no knowledge of any fraudulent billing that has actually occurred. [Dkt. 75-2, Exh. 1, at 125-26, 139-40]. Therefore, Dr. Trupp's purported FCA claim is based on her concerns for potential fraud perpetuated by Roche's clients to which Roche may have indirectly contributed.

Roche contends that Dr. Trupp's actions do not qualify as "protected conduct," explaining that neither action—internally reporting her concerns with the assay and then filing her complaint—was predicated on Dr. Trupp's subjective belief that Roche was perpetrating fraud against the government. Indeed, at all times prior to the initiation of this lawsuit, Dr. Trupp's apparent concerns were more accurately categorized as concerns for patient safety and customer education, and her internal discussions about the assay never mentioned fraud. [Dkt. 75-13, at 24]. Following the commencement of this litigation, Dr. Trupp's deposition testimony clearly reflects only these concerns; she unequivocally testified that she was not concerned that Roche had engaged in any fraud with relation to its interactions with the FDA, nor was she alleging that Roche was submitting false claims for Medicare/Medicaid reimbursement. [Dkt. 75-2, Exh. 1, at 35, 139-40.]. Moreover, Dr. Trupp expressly testified that she is not asserting that Roche had engaged in any sort of fraudulent conduct. [Dkt. 75-2, Exh. 1, at 35]. Dr. Wiley similarly confirmed that potential Medicare/Medicaid fraud was not the object of their concerns. [Dkt. 75-3, Exh. 2, at 275-76].

Thus, according to Roche, it is "abundantly clear" that Dr. Trupp's actions never concerned its submission of false claims to the government. Rather, the evidence overwhelmingly establishes that Dr. Trupp was concerned, at all relevant times, with customer education and patient safety, not fraud. [Dkt. 75-13, at 24]. Because complaints about regulatory violations or patient safety do not constitute FCA-protected activities, Roche asserts that Dr. Trupp's retaliation claim is doomed as a matter of law because her complaints did not involve fraud. U.S. ex rel. Ziebell v. Fox Valley Workforce Dev. Bd., Inc. , 806 F.3d 946, 953 (7th Cir. 2015).

In response, Dr. Trupp insists that her actions qualify as "efforts to stop" FCA violations, and that she acted "in furtherance of the FCA" when she filed this lawsuit. Dr. Trupp rejects Roche's narrow interpretation of "protected conduct," arguing that "[t]he FCA provides viable claims against a manufacturer or seller of medical devices who markets or promote ‘off-label use’ of that device to customers, which induces those customers to submit Medicare or Medicare claims to the U.S. Government for uncovered off-label uses." [Dkt. 83-1, at 23]. She further contends that precedent does not necessitate that she "specifically and expressly identify fraud" in her complaints.

Our careful review of the uncontroverted evidence, viewed in light of the applicable law and precedents, brings us to the conclusion that, as Roche has asserted, Dr. Trupp has never held the subjective belief that Roche was committing fraud against the government, which dooms her FCA retaliation claim. Dr. Trupp has presented no evidence to support a claim that she maintained a good-faith belief, either at the time of her internal reporting or when she filed her complaint, that Roche caused its customers to improperly submit false claims to the government. Nor does she attempt to refute her unequivocal deposition testimony establishing that she does not, nor has she ever, associated her complaints about the assay with any specific concerns of fraud. Of even larger significance is the fact that Dr. Trupp has never addressed this subjective belief element of her FCA retaliation claim, devoting her briefing instead to boilerplate assertions and conclusory principles of law, including, for example, the assertion that "protected conduct" must be interpreted broadly, and that employees are not expected to "connect all the dots" of fraud against the government in order to be cloaked with the protections of the FCA.

Her legal arguments are accurate as far as they go, but she stops short in applying them to evidence before us. Her statement that "Congress intended to protect employees from retaliation while they are collecting information about a possible fraud, but before they have put all the pieces together" is not connected up to the facts of this case. Fanslow v. Chi. Mfg. Ctr., Inc. , 384 F.3d 469, 481 (7th Cir. 2004). Additionally, she correctly notes that an employee is not required to have actual or sophisticated knowledge of the FCA, but does not resolve the fact that, "the statute does not [ ] protect an employee who just imagines fraud with proof," id. , nor does it protect an employee who does not hold an actual belief that "the employer is committing fraud against the government." U.S. ex rel. Absher v. Momence Meadows Nursing Ctr., Inc. , 764 F.3d 699, 715 (7th Cir. 2014). Here, there is no evidence that Dr. Trupp was collecting information of what would ultimately amount to legitimate concerns of fraud against the government, and at no time did she actually believe she was collecting such evidence. Thus, even though "protected conduct" is to be interpreted broadly, it simply cannot be interpreted so broadly as to encompass the actions of an employee who did not even subjectively contemplate fraud. Ziebell , 806 F.3d at 953.

Notwithstanding her to failure address the necessary subjectivity element of her claim, Dr. Trupp maintains that a reasonable employee could logically infer that "Roche customers submitted Medicare reimbursement claims based on use of the assay because: (a) Roche customers use the assay to detect heart attacks ; (b) heart attacks are more common in older patients; and (c) older patients are more likely to be enrolled in Medicare." If, she contends, Roche was not fully transparent to customers, those customers would be unable to render proper clinical decisions as to whether it was medically necessary to use the assay in an off-label manner. And, because Medicare/Medicare reimbursements for off-label assay use is permissible only if medically necessary, Roche's failure to be sufficiently forthright could lead to illegitimate Medicare/Medicaid reimbursements, says Dr. Trupp.

Dr. Trupp asserts that her internal complaints did involve fraud because they "placed Roche on notice of the possibility that it was causing customers to make or use a false or fraudulent statement in connection with a claim for payment from the government via omission of material information." She argues the submission of false claims in the form of Medicare/Medicaid fraud as well as the promotion or use of the assay off-label were "foreseeable consequences" of the issues she raised. "At minimum," she argues, she engaged in a protected activity when she filed her complaint.

But there simply is no evidence that any of these puzzle pieces upon which Dr. Trupp's theory of fraud relies actually occurred. Dr. Trupp has presented no evidence that Roche omitted material information in its communications with customers, that Roche promoted the off-label use of the assay, or that physicians were using the assay in an off-label, medically unnecessary manner. While it is true that Dr. Trupp need not prove "fraud on the merits," for her actions to be protected, she cannot take refuge under the FCA by relying on conjecture and hypotheses to establish that a reasonable employee would infer a potential for fraud. U.S. ex rel. Kietzman v. Bethany Circle of King's Daughters of Madison, Indiana, Inc. , 305 F. Supp.3d 964, 981 (S.D. Ind. 2018). Although she may not be required to "connect all to dots," she must at least identify some dots that could reasonably be connected. Ziebell , 806 F.3d at 953 ("Because Ziebell's [FCA] claim lacks factual support, no reasonable employee in similar circumstances would believe that the Board was committing fraud against the federal government."). See also Fluor Corp. , 839 F.3d at 635.

Based on the record evidence before us with respect to Dr. Trupp's concerns, a reasonable employee might reasonable believe that Roche should be more transparent for the sake of patient safety—but this is a far cry from a claim or possibility of fraud against the government. United States v. Pfizer Inc., Med & Med GD (CCH) P 306,456, 2019 WL 1200753 (N.D. Ill. Mar. 14, 2019) ("A reasonable employee ... might [ ] believe that the Sapphire sets had significant quality control problems, and that Defendants violated FDA regulations ... But ... this Court cannot find that a reasonable employee might believe quality control problems or silent recalls constitute fraudulent claim activity."). Merely filing a complaint setting forth an FCA retaliation cause of action requires more than the incantation of those words, nor do those magically transform an employee's conduct into protected; in determining whether, at the time she filed her complaint, she held an actual and reasonable belief that Roche could be committing fraud on the government, we find an absence of evidence to that effect.

Even if we were able to find that Dr. Trupp held a reasonable and good faith belief that Roche's business practices could indirectly lead to improper Medicare/Medicaid reimbursements, we remain unpersuaded that these circumstances would trigger the protections the FCA. Dr. Trupp has provided only one case in support of her theory that Roche could be held liable under the FCA for its indirect contributions to potential fraud: U.S. ex rel. Lokosky v. Acclarent, Inc. , 270 F. Supp.3d 526, 533 (D. Mass. 2017). There, the District of Massachusetts denied the defendant's motion to dismiss, finding that the plaintiff had alleged that her employer was illicitly promoting the off-label use of its medical product, which could lead to improper Medicare reimbursements. The court held that this claim sufficiently alleged that the plaintiff had participated in protected conduct. Id. at 533.

Our plaintiff, in contrast, has not alleged that Roche is improperly promoting the off-label use of its product, nor presented any evidence to that effect. We do not address at this juncture whether Dr. Trupp's claim has been sufficiently pled as the Massachusetts court did, but whether there is evidentiary support sufficient to survive summary judgment. The factual circumstances underlying Dr. Trupp's argument are clearly more attenuated than those in this one case.

In sum, Dr. Trupp has provided no authority to buttress her arguments that Roche's business practices could lead a person to conclude there was a possibility of fraud. There is no evidence establishing that even she actually and reasonably believed that Roche could be committing fraud against the government either at the time of her internal reporting at Roche or at the time she filed this lawsuit. Because Dr. Trupp's FCA retaliation claim does not satisfy the "protected conduct" hurdle, summary judgment must be entered in favor of Roche on this issue.

B. Dr. Trupp Has Not Suffered a "Compensable Injury" as Defined in the Family Medical Leave Act

The FMLA entitles eligible employees to take up to twelve workweeks of leave during each twelve-month period due to a serious health problem. 29 U.S.C.A. § 2612. It is unlawful for an employer to retaliate against an employee who exercises her FMLA rights. Id. § 2615(a)(2). See also Carter v. Chicago State Univ. , 778 F.3d 651, 657 (7th Cir. 2015). To prevail on her FMLA retaliation claim, Dr. Trupp "must present evidence of (1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two." Makowski v. SmithAmundsen LLC , 662 F.3d 818, 824 (7th Cir. 2011).

The FMLA permits recovery for "compensation denied or lost ... by reason of the violation" or the "actual monetary losses sustained ... as a direct result of the violation." Freelain v. Vill. of Oak Park , 888 F.3d 895, 903 (7th Cir. 2018) (quoting 29 U.S.C. § 2617(a)(1)(A) ). Even if a court finds that a violation of the FMLA has occurred, summary judgment should be granted for the employer when the plaintiff cannot show she is entitled to any relief contemplated by the FMLA. Harrell v. United States Postal Service , 445 F.3d 913 (7th Cir. 2006) ; Xula v. Chase Bank, J.P. Morgan Chase , No. 15-C4752, 2019 WL 5788074, at *11 (N.D. Ill. Nov. 6, 2019) ; Sons v. Henry Cty. , No. 1:05-CV-00516-DFH-TAB, 2007 WL 968726, at *2 (S.D. Ind. Mar. 13, 2007).

Roche argues that there are no monetary damages incurred by Dr. Trupp, which fact forecloses her success on her FMLA retaliation claim. As Roche explains, Dr. Trupp was paid her full salary and benefits while she was on FMLA leave and subsequently after when she was placed on administrative leave. To this day, she remains employed by Roche in a director-level position, for which she is paid an even higher salary as well as the same benefits, and remains eligible for comparable bonuses. Indeed, her most recent bonus exceeded the amount that she had previously received in her former position. Having suffered no pecuniary losses, Roche argues that Dr. Trupp's FMLA claim fails as a matter of law. Citing Ragsdale v. Wolverine World Wide, Inc. , 535 U.S. 81, 122 S. Ct. 1155, 1161, 152 L.Ed.2d 167 (2002) ; Harrell v. United States Postal Serv. , 445 F.3d 913, 928-29 (7th Cir. 2006) ; Sons v. Henry Cty. , No. 1:05-CV-00516-DFH-TAB, 2007 WL 968726, at *2 (S.D. Ind. Mar. 13, 2007).

Dr. Trupp concedes that she has no claim for past or current lost wages, nor has she incurred any actual monetary damages. However, she maintains that she has a viable damages claim for "lost promotional opportunities and/or lost future earning capacity." She relies on the Seventh Circuit's decision in Breneisen v. Motorola to argue that the FMLA permits recovery for future lost opportunities and wages. 512 F. 3d 972 (7th Cir. 2008).

In Breneisen , the plaintiff was employed as an hourly employee at various Motorola facilities. Id. at 975. Following several years of service, plaintiff was given the title of Process Analyst along with additional responsibilities that he performed successfully. His manager discussed with him whether he could be promoted to a salaried position, which she promised to investigate. Id. Before any determinations were made, the plaintiff went on FMLA leave. Upon his return, not only was he not promoted, he was removed from his position of Process Analyst and reassigned to a role that required heavy lifting. Id. at 976. His new position afforded him the same pay and benefits as that of the Process Analyst position, but, like Dr. Trupp, he sought damages for his "lost future earning capacity." Id. Despite receiving the same pay and benefits, the Seventh Circuit held that the district court improperly granted summary judgment for defendant on plaintiff's retaliation claim, observing that, if the transfer "was a demotion or resulted in fewer promotional opportunities, it would qualify as an adverse employment action." Id. at 979.

We agree with Dr. Trupp's reading of the Breneisen decision—it opens the door for recovery of future lost wages under the FMLA. However, in Dr. Trupp's case, we cannot find any evidence that allows her to survive summary judgment. She has adduced no facts or evidentiary support for her argument that her new position narrowed her range of economic opportunities, diminished her future promotional prospects, or resulted any future monetary losses recoverable under the FMLA. Dr. Trupp's situation at Roche is thus clearly distinguishable from that of the plaintiff in Breneisen who had mustered evidentiary support for a claim that he was denied a potential promotion as a consequence of his taking FMLA leave. Here, however, as Roche explains in its Reply Brief:

Plaintiff merely states, without citing to any record evidence, that she suffered some reduction in opportunities for promotion or future earning capacity. She

has failed to point to any evidence, however, that she ever applied for and was denied (or was otherwise ineligible to apply for) even a single promotional opportunity or that her future earning capacity was diminished from what it was prior to her use of FMLA leave.

[Dkt. 86, at 18]. Without such evidence, her claim is speculative at best and her arguments hypothetical. Dr. Trupp's claim for "lost promotional opportunities and/or lost future earning capacity" is not supported by even a scintilla of specific, concrete facts or evidence and must be disregarded. Odongo v. Brightpoint N. Am., L.P. , No. 1:16-CV-00685-TWP-DML, 2018 WL 4539265, at *6 (S.D. Ind. Sept. 21, 2018). It is well-established that "conclusory statements, not grounded in specific facts, are not sufficient to avoid summary judgment." See Lucas , 367 F.3d at 726. " Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of truth of the matter asserted." Id. (quoting Drake v. Minn. Min. & Mfg. Co. , 134 F.3d 878, 887 (7th Cir. 1998) (citations omitted .).

Similarly, Dr. Trupp's argument is misplaced to the extent it contends that "it would be improper to enter summary judgment on [her] FMLA retaliation claim due to a lack of damages without allowing a jury to decide whether the current position is equivalent to the one she had before she went on FMLA." This contention reflects the statutory requirement that employees who take FMLA leave are entitled to be restored to the same position they held before they went on leave, or to an "equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." 29 U.S.C. § 2614(a)(1).

However, Dr. Trupp's argument on this point is unavailing. First, she has not pled a claim under section 2614(a)(1), which gives rise to a cause of action distinct from a retaliation claim under section 2615. See Goelzer v. Sheboygan Cty., Wis. , 604 F.3d 987, 992 (7th Cir. 2010). Second, no evidence is established that she was unilaterally reassigned to her new position. Rather, she was offered the position and voluntarily accepted it. Dr. Trupp's argument sidesteps this fact; aside from broadly asserting that she was "permanently removed" from her position and "reassigned" to a lesser one, she cannot cite to evidence that shows she was forced or coerced into accepting her new position. She also fails to direct us to any precedent involving a party who voluntarily vacated a position who would be entitled to relief under the FMLA. Indeed, at least one district court in our Circuit has found that an employee who voluntarily leaves a position cannot claim an injury under the FMLA. Xula , 2019 WL 5788074, at *11.

We will not speculate as to whether a reasonable jury could find that Dr. Trupp's assumption of her new position was in some fashion involuntary when she has offered no substantiated argument that supports finding such a possibility. Id. ("[T]he Court will not construct arguments for [plaintiff] in an attempt to find a genuine issue of material fact."). See Nelson v. Napolitano , 657 F.3d 586, 590 (7th Cir. 2011) (the court is not "obliged to research and construct legal arguments for parties, especially when they are represented by counsel").

Based on the evidence before us. Dr. Trupp has failed to show that she suffered any injury or prejudice entitling her to relief under the FMLA. We need not address the remaining elements of this cause of action. Accordingly, summary judgment must be granted in favor of Roche on Dr. Trupp's FMLA retaliation claim.

CONCLUSION

Defendant's Motion for Summary Judgment [Dkt. 72] is granted. This Order shall be issued under seal . The parties are directed to submit a redacted version of this entry, consistent with our Orders at Dkt. 8, Dkt. 34, Dkt. 62, Dkt. 64, Dkt. 66, Dkt. 80, Dkt. 85, and Dkt. 90, for the public docket within twenty-one days following the entry of this Order.

The parties shall bear their own costs, respectively. Final judgment shall enter by separate document. FED. R. CIV. P. 58( A ).

IT IS SO ORDERED.