United States District Court, D. Colorado
Brooke Jackson United States District Judge
order addresses defendant's motion to dismiss [ECF No.
11]. For the reasons given below, the motion is GRANTED.
Potts worked as a campus director for CollegeAmerica, a
predecessor to the Center for Excellence in Higher Education
(“the Center”), for several years until resigning
on July 16, 2012. ECF No. 1 at ¶¶ 7, 13. The Center
operates a number of for-profit colleges in the United
States. Id. ¶ 8. Ms. Potts claims she resigned
because she was upset by the Center's business practices,
which she believes violate Title IV of the Higher Education
Act of 1965. Id. ¶ 13. A month later, the
Center's Chief Executive Officer negotiated an agreement
(“the Agreement”) with Ms. Potts regarding unpaid
wages, unemployment compensation, and other employment
matters. Id. ¶ 17. Under the Agreement, Ms.
Potts received $7, 000 in exchange for a promise to (1)
“refrain from . . . contacting any governmental or
regulatory agency with the purpose of filing any complaint or
grievance” concerning the Center's business
practices; (2) “direct any complaints or issues against
[the Center] that may arise with disgruntled staff, students,
or the public at large to” the Center's complaint
hotline; and (3) “not intentionally with malicious
intent . . . disparage the reputation of” the Center.
Id. ¶ 21; ECF No. 12 at 4. Nevertheless, on
February 27, 2013 Ms. Potts filed a complaint with the
Center's accrediting agency alleging that the Center
provided false information to the agency in violation of the
False Claims Act (“FCA”). ECF No. 1 at ¶ 22.
March 25, 2013 the Center filed a lawsuit in state court
against Ms. Potts for breach of the Agreement. Id.
¶ 34. The Center initially claimed only that Ms. Potts
violated the Agreement's non-disparagement provision by
publishing written statements to another former employee of
the Center. ECF No. 12 at 5. But when the Center later
learned of Ms. Potts' report to the accrediting agency,
it moved to amend its complaint. Id. Its motion was
granted, and on February 4, 2014 the Center filed an amended
complaint alleging that Ms. Potts also violated the Agreement
by reporting the Center to the accrediting agency. ECF No. 1
at ¶¶ 36-37.
12, 2016 Ms. Potts filed suit in this Court claiming that the
Center violated the FCA's anti-retaliation provision by
harassing her with the state court lawsuit. Id.
¶ 1. Ms. Potts claims she engaged in protected activity
when she reported the Center to its accrediting agency, and
the Center unlawfully retaliated by amending its complaint to
punish her for this protected activity. Id. ¶
55-56. Defendants have responded with a motion to dismiss.
ECF No. 11.
survive a 12(b)(6) motion to dismiss, the complaint must
contain “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). While the Court must
accept the well-pleaded allegations of the complaint as true
and construe them in the light most favorable to the
plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210
(10th Cir. 2002), purely conclusory allegations are not
entitled to be presumed true, Ashcroft v. Iqbal, 556
U.S. 662, 681 (2009). However, so long as the plaintiff
offers sufficient factual allegations such that the right to
relief is raised above the speculative level, he has met the
threshold pleading standard. See Twombly, 550 U.S.
support of its motion to dismiss, the Center argues: 1) the
FCA's anti-retaliation provision does not apply to
post-employment retaliation; 2) Ms. Potts' claim is
barred by the statute of limitations; 3) Ms. Potts waived her
right to bring an FCA retaliation claim; and 4) Ms. Potts
fails to allege an element of her retaliation claim-that the
Center knew she was acting in furtherance of the FCA by
reporting the Center to the agency. ECF No. 12 at 2-3. I
agree that the first argument is dispositive, so I need not
address the Center's three other defenses.
imposes liability on organizations that knowingly defraud the
government. See 31 U.S.C. § 3729(a)(1)(A)-(B).
Because employees are often in the best position to identify
and report fraud, the FCA contains a whistleblower provision
that protects them from retaliation by these organizations.
Id. § 3730(h)(1). This anti-retaliation
Any employee, contractor, or agent shall be entitled to all
relief necessary to make that employee, contractor, or agent
whole, if that employee, contractor, or agent is discharged,
demoted, suspended, threatened, harassed, or in any other
manner discriminated against in the terms and conditions of
employment because of lawful acts done by the employee,
contractor, agent or associated others in furtherance ...