RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0180p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ex rel. CLAUDIA X

MARLAR; and CLAUDIA MARLAR, -

Plaintiffs-Appellants, -- No. 07-6051
v. >,-
BWXT Y-12, L.L.C., Defendant-Appellee. ---
N

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 04-00415—Thomas A. Varlan, District Judge.

Argued: May 1, 2008

Decided and Filed: May 13, 2008

Before: KENNEDY and MARTIN, Circuit Judges; HOOD, District Judge.*

COUNSEL

ARGUED: Leonard Egan, Washington, D.C., for Appellants. Glenn V. Whitaker, VORYS, SATER, SEYMOUR & PEASE, LLP, Cincinnati, Ohio, for Appellee. ON BRIEF: Leonard Egan,Washington, D.C., Ronald J. Zuker, VAUGHAN & ZUKER, Knoxville, Tennessee, Stephen R.Felson, Cincinnati, Ohio, for Appellants. Glenn V. Whitaker, Michael J. Bronson, Victor A. Walton, Jr., VORYS, SATER, SEYMOUR & PEASE, LLP, Cincinnati, Ohio, Kenneth M. Brown, BWXT Y-12, Oak Ridge, Tennessee, John C. Burgin, Jr., KRAMER RAYSON, LLP, Knoxville, Tennessee,for Appellee.

OPINION

KENNEDY, Circuit Judge. Ms. Claudia Marlar filed this action against her formeremployer, BWXT Y-12, L.L.C. (“BWXT”), alleging that it had violated the False Claims Act(“FCA”) by defrauding the United States government, in violation of 31 U.S.C. § 3729(a)(1)-(3),and by discharging her in retaliation for whistleblowing, in violation of 31 U.S.C. § 3730(h). The district court held that Ms. Marlar’s claim of fraud was not pleaded with specificity, and therefore

*

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting bydesignation.

1

her cause of action was dismissed for failure to comply with Federal Rule of Civil Procedure 9(b).The district court also held that Ms. Marlar failed to allege the elements necessary to establish acause of action for retaliation, and therefore dismissed her complaint for failure to comply withFederal Rule of Civil Procedure 8(a). Ms. Marlar claims that both determinations are in error. We find that the district court properly dismissed Ms. Marlar’s fraud complaint, as Ms. Marlar failed toidentify a single false claim and did not establish the specifics of the alleged fraud. We find, however, that Ms. Marlar adequately pleaded a cause of action for retaliation. We therefore affirm in part and reverse in part the district court’s decision, and we remand for further proceedingsconsistent with this opinion.

BACKGROUND

I. Factual Background

Ms. Marlar sued BWXT for allegedly defrauding the United States government anddischarging her in retaliation for whistleblowing. Her complaint alleges that BWXT operates theY-12 nuclear power facility in Oak Ridge, Tennessee pursuant to a contract with the United StatesDepartment of Energy (“DOE”). The contract at issue in this case began November 1, 2000 andcovered a five-year operational period. The compensation paid to BWXT by DOE had fixedelements as well as performance-based elements. Each month, BWXT would report its performance to date to DOE. BWXT would then receive partial, quarterly payments based upon its reports. At the end of the fiscal year, BWXT would submit a certified Completion Form regarding itsperformance as well as a self-evaluation, and DOE would reconcile this with previous payments todetermine whether any further performance-based compensation was due. If the contractual performance objectives were not met or only partially met, then DOE had discretion to adjustBWXT's compensation downward.

One contractual, performance-based element was BWXT's reports from its Environment,Safety, and Health division. The Environment, Safety, and Health division was responsible forevaluating and reporting work-related accidents, injuries, and illnesses. Reportable instancesincluded “all new work-related injuries that result[ed] in: (1) death; (2) days away from work;

(3) restrictions on work; (4) transfer to another job; ([5]) medical treatment beyond first aid; or ([6])loss of consciousness.” J.A. at 13 (Compl. ¶ 24). “Medical treatment beyond first aid include[d]the administration of any prescription drug (except those used for diagnostic purposes) or ofnon-prescription drugs at above normal dosages or strengths.” J.A. at 14 (Compl. ¶ 27). BWXT received greater compensation for fewer reports of work-related accidents, injuries, and illnesses.

These contractual, performance measurements regarding work-related injuries and illnesseswere consistent with BWXT’s other reporting duties. For instance, BWXT was required to completestandard OSHA forms to record covered work-related injuries and illnesses.

Ms. Marlar is a certified nurse practitioner who worked in BWXT's Occupational HealthServices division (“OHS”). OHS was a subdivision of BWXT's Environment, Safety, and Health division. Ms. Marlar was employed by BWXT from April 8, 2002 until she was terminated onJanuary 16, 2004.

Ms. Marlar alleges that during her tenure at BWXT, the company engaged in “systematicand significant underreporting of work-related injuries and illnesses and time missed from work.”BWXT allegedly underreported such incidents so as to inflate its performance-based compensationunder the DOE contract. BWXT, therefore, purportedly submitted false and fraudulent “monthlyreports, [yearly] Completion Forms and [] annual self-evaluation[s].” J.A. at 18 (Compl. ¶ 54).

Ms. Marlar alleges a few specific occurrences of improper reporting. For instance, Ms. Marlar asserts that she treated particular, unidentified employees who told her that they were being given prescription drugs as a result of work-related injuries, but the medical records of theemployees did not include those prescriptions. Ms. Marlar also alleges that in May of 2003, anunidentified employee had received an injection of a prescription drug due to a work-related headinjury, and yet the injection was not noted in that employee’s medical records. Ms. Marlar additionally provides other examples of purportedly improper reporting in 2002 and 2003 thatgenerally fall into the category of failure to include receipt of a prescription drug in the unidentifiedrecipient-employee’s medical records. Ms. Marlar’s other allegations generally concernunidentified, non-medical employees improperly making medical judgments regarding anemployee’s working condition so as to avoid reporting injures and illnesses.

After Ms. Marlar informed her management of her concerns regarding these allegedlyimproper reporting practices, BWXT terminated Ms. Marlar. Ms. Marlar alleges that, throughouther time at BWXT, she continually “objected to her superiors” about the sorts of incidents relatedpreviously. When an open forum for employee grievances was held, Ms. Marlar took theopportunity to again raise her objections to the allegedly improper reporting. Ms. Marlar asserts that because she persisted in questioning BWXT’s reporting, she was placed on administrative leave onSeptember 11, 2003. BWXT charged Ms. Marlar with insubordination, a charge which Ms. Marlar believes to be false.

On October 13, 2003, while on administrative leave, Ms. Marlar wrote to Mr. Dennis Ruddy,BWXT’s president and general manager, regarding her placement on administrative leave. She told Mr. Ruddy “that she had learned that her computer had been ‘cleaned out’ because she refused toparticipate in illegal activities at OHS. She stated that the illegal activities included theunderreporting of occupational injuries and illnesses resulting in large incentive payments to BWXTunder the contract.” J.A. at 19 (Compl. ¶ 60).

Ms. Marlar was eventually fired after writing to Mr. Ruddy. First, an employee relationsrepresentative contacted Ms. Marlar to gather additional information regarding “the circumstancesof [Ms. Marlar’s] being put on administrative leave and her allegations of underreporting.” J.A. at 19 (Compl. ¶ 62). Ms. Marlar responded by writing a memo to the representative “reiterating thatthere was under-reporting of work-related injuries and illnesses and detailing the events of [the dayMs. Marlar was placed on administrative leave], when the alleged insubordination occurred.” J.A. at 20 (Compl. ¶ 63). Ms. Marlar then received a letter, dated January 16, 2004, informing her thatBWXT “ ‘determined that [her] allegations of inappropriate activity within [her] department thatwould lead to a retaliatory discharge [we]re unfounded.’ ” J.A. at 20 (Compl. ¶ 64). The letter also informed Ms. Marlar that she was terminated for insubordination. Ms. Marlar, however, maintains that she “was terminated because [she] br[ought] the underreporting of work-related injuries andillnesses to the attention of her superiors including the senior management of BWXT.” J.A. at 20 (Compl. ¶ 64).

II. Procedural Background

Ms. Marlar filed this qui tam suit against BWXT on September 8, 2004. She alleged thatBWXT had violated 31 U.S.C. § 3729(a)(1)-(3) by submitting false reports and certificationsregarding work-related injuries and illnesses, thereby increasing its performance-based, contractualcompensation and defrauding DOE. Ms. Marlar also alleged that BWXT violated 31 U.S.C.§ 3730(h) when it terminated her in retaliation for activities she took regarding BWXT’s purporteddefrauding of the United States government.

BWXT filed a Rule 12(b)(6) motion to dismiss Ms. Marlar’s complaint for failure to statea claim. It asserted that Ms. Marlar failed to plead her allegations of fraud against DOE withsufficient particularity, as required by Rule 9(b). It further contended that Ms. Marlar failed to allege facts to sustain an action for retaliation under § 3730(h).

The district court agreed with BWXT, and therefore dismissed Ms. Marlar’s suit. The district court found that Ms. Marlar’s claims of fraud were not pleaded with sufficient particularity.Specifically, it found her complaint insufficiently particular because Ms. Marlar “did not identifyany specific claims that were submitted to the United States, [nor did she] indicate the dates [o]nwhich those claims were presented.” J.A. at 59 (Dist. Ct. Op. at 11). The district court also found that the complaint was too general and over-relied upon allegations made on “information andbelief.” J.A. at 59 (Dist. Ct. Op. at 11).

The district court also found that Ms. Marlar failed to adequately plead her retaliation claim,and therefore similarly dismissed that claim. The district court held that “the complaint fail[ed] toproperly allege the plaintiff’s employer knew that she was engaged in any protected activity.” J.A. at 60 (Dist. Ct. Op. at 12). More specifically, the complaint contained no “allegation[s] from whichit could be inferred [that BWXT knew] that plaintiff was considering bringing a qui tam action herself or assisting the government in bringing an FCA action.” J.A. at 60-61 (Dist. Ct. Op. at 1213). The district court therefore dismissed Ms. Marlar’s complaint.

ANALYSIS

Ms. Marlar argues on appeal that the district court incorrectly dismissed her complaint. She asserts that her allegations of fraud against BWXT met Rule 9(b) because they were supported bysufficiently particular pleadings. Ms. Marlar additionally asserts that she has pleaded sufficient factsso as to sustain her claim of retaliation.

We review dismissals pursuant to Rule 12(b)(6) de novo. Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 562 (6th Cir. 2003). A complaint is properly dismissed when it fails to state a claim upon which relief can be granted. Id. Because we find that Ms. Marlar failed to adequately pleadfraud in violation of Rule 9(b), we hold that her cause of action for violation of 31 U.S.C.§ 3729(a)(1)-(3) was properly dismissed. Because we find, however, that Ms. Marlar adequatelypleaded the elements of a retaliation claim under 31 U.S.C. § 3730, we reverse the district court’sjudgment dismissing this claim and remand the case to the district court for further proceedingsconsistent with this opinion.

I. Compliance of Claims under 31 U.S.C. § 3729 with Rule 9(b)

Federal Rule of Civil Procedure 9(b) requires that parties “alleging fraud . . . must state withparticularity the circumstances constituting fraud.” To satisfy Rule 9(b), a complaint of fraud, “ata minimum, must ‘allege the time, place, and content of the alleged misrepresentation on which [theplaintiff] relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injuryresulting from the fraud.’ ” United States ex rel. Bledsoe v. Cmty. Health Sys., Inc. (Bledsoe I), 342F.3d 634, 643 (6th Cir. 2003) (quoting Coffey v. Foamex L.P., 2 F.3d 157, 161-62 (6th Cir. 1993)(internal quotation marks and citations omitted)). Courts must proceed paragraph-by-paragraph toensure compliance with Rule 9(b) “if the paragraphs of a relator’s complaint allege separate andunrelated fraudulent conduct.” United States ex rel. Bledsoe v. Cmty. Health Sys. (Bledsoe II), 501F.3d 493, 509 (6th Cir. 2007). Where a complaint alleges “a complex and far-reaching fraudulentscheme,” then that scheme must be pleaded with particularity and the complaint must also “provide[]examples of specific” fraudulent conduct that are “representative samples” of the scheme. Id. at 510 (emphasis removed).

There are multiple purposes for this heightened pleading requirement. Claims of fraud “raise a high risk of abusive litigation.” See Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1973 n.14 (2007); see also Bledsoe II, 501 F.3d at 510 (noting that Rule 9(b) is meant to protect defendantsfrom “fishing expeditions and strike suits”); United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1360 (11th Cir. 2006) (“Rule 9(b) ensures that the relator’s strong financial incentive to bring an FCA claim–the possibility of recovering between fifteen and thirty percent of a treble damagesaward–does not precipitate the filing of frivolous suits.”). Rule 9(b) is also meant to protectdefendants from “ ‘spurious charges of immoral and fraudulent behavior.’ ” Bledsoe II, 501 F.3d at 510 (quoting Sanderson v. HCA-The Healthcare Co., 447 F.3d 873, 877 (6th Cir. 2006)); accord United States ex rel. Fowler v. Caremark RX, L.L.C., 730 F.3d 496, 740 (7th Cir. 2007) (“ ‘Greaterprecomplaint investigation is warranted in fraud cases because public charges of fraud can do greatharm to the reputation of a business firm or other enterprise (or individual).’ ” (quoting Ackerman

v. Nw. Mut. Life Ins. Co., 172 F.3d 467, 469 (7th Cir. 1999) (citations omitted)). Lastly, Rule 9(b)is intended to provide defendants with “notice of the specific conduct with which they werecharged,” so that the defendants can prepare responsive pleadings. Bledsoe II, 501 F.3d at 510.

The elements of an FCA action must be pleaded with the particularity required by Rule 9(b). Yuhasz, 341 F.3d at 563. Ms. Marlar alleged FCA claims under 31 U.S.C. § 3729(a)(1), (a)(2), and (a)(3). These subsections make liable:

(a)(1) [any person who] knowingly presents, or causes to be presented, to an officer

or employee of the United States Government or a member of the Armed Forces of

the United States a false or fraudulent claim for payment or approval;

(a)(2) [any person who] knowingly makes, uses, or causes to be made or used, a false

record or statement to get a false or fraudulent claim paid or approved by the

Government; [and]

(a)(3) [any person who] conspires to defraud the Government by getting a false or

fraudulent claim allowed or paid.

The “claim” all of the subsections refer to is “any request or demand, whether under a contract orotherwise, for money or property which is made to a contractor, grantee, or other recipient if theUnited States Government provides any portion of the money or property which is requested ordemanded, or if the Government will reimburse such . . . request[] or demand[].” 31 U.S.C. § 3729(c).

A. Claims under Subsection (a)(1)

Ms. Marlar has failed to comply with Rule 9(b) for her claims under subsection (a)(1). We have previously held that an action under subsection (a)(1) requires proof that the alleged false orfraudulent claim was “presented” to the government. See, e.g., United States ex rel. Thacker v. Allison Engine Co., 471 F.3d 610, 614 (6th Cir. 2006); Sanderson, 447 F.3d at 877-78. Ms. Marlar has not pleaded any facts regarding whether the alleged false claims were in fact submitted to the government. Instead, Ms. Marlar relies on the general allegation, “[o]n information and belief,” thatBWXT submitted purported false claims to the government, and that DOE paid BWXT a fee thatwas based in part of the purported false claims. We have held, however, that alleging “ ‘that thedefendants must have submitted fraudulent claims’ to the government” does not satisfy a plaintiff’sduty to plead with particularity under Rule 9(b). See Sanderson, 447 F.3d at 878 (quoting United States ex rel. Joshi v. St. Luke’s Hosp., Inc., 441 F.3d 552, 557 (8th Cir. 2006)). Instead, a plaintiffmust “identify [the] specific claims that were submitted to the United States,” which Ms. Marlar hasfailed to do. Id. at 877 (internal quotation marks and citation omitted). “A plaintiff may notdescribe a[n alleged fraudulent billing] scheme in detail but then allege simply and without anystated reason for his belief that claims requesting illegal payments must have been submitted, werelikely submitted or should have been submitted to the Government. A plaintiff must provide some support for the allegation.” United States ex rel. Heater v. Holy Cross Hosp., Inc., 510 F. Supp. 2d1027, 1034 (S.D. Fla. 2007) (internal quotation marks and citations omitted).

Ms. Marlar asserts that she has provided sufficient detail regarding the facts on which shehas based her “belief” that the false claims were actually submitted to the government. She admits that she does not know what happened to the purportedly false reports after they left her division.She alleges, however, “[o]n information and belief” that the purportedly false reports were providedby the Environment, Safety, and Health division to senior management. She then alleges “[o]ninformation and belief” that the certification forms provided by BWXT to DOE were based on thepurportedly false reports.

These allegations do not suffice. Ms. Marlar does not allege personal knowledge of theprocedures through which BWXT compiled its Completion Forms, self-evaluation, or monthlyreports that BWXT submitted to DOE. Ms. Marlar also fails to allege concrete facts, rather thaninferences based “[o]n information and belief,” to establish that fraudulent claims were in fact, oncecompiled, submitted to the government. She has not provided dates on which the purportedly falsecertifications were submitted, nor has she alleged who submitted the purportedly false certifications,nor has she alleged any other “specific information about the [certifications] allegedly submitted.”See Bledsoe II, 501 F.3d 512-13. Indeed, worse yet, she has even failed to plead with specificity theallegations of which she allegedly has personal knowledge; she has not identified any of the patientswhose medical records were allegedly incomplete, nor has she identified any of the non-medical,safety employees who were allegedly pressuring the medical employees to falsify medical records.

While we have before suggested that we may “relax[]” the pleading requirement when “arelator demonstrates that he cannot allege the specifics of actual false claims that in all likelihoodexist,” Bledsoe II, 501 F.3d at 504 n.12, this case does not call upon us to establish such an exception. Ms. Marlar does not allege a factual basis for her assertions that purportedly false recordsfrom OHS were used by Environment, Safety, and Health division management to complete reports,that those false reports were then provided to BWXT senior management, that BWXT seniormanagement then used those reports to complete its certification requirements necessary forperformance-based compensation under BWXT’s contract with DOE, and that BWXT then allegedlysubmitted those certifications to the government.

The weakness of these allegations, and their consequent unfitness for an exception to thepleading requirement, is made clear when compared with the allegations in United States ex rel. Walker v. R&F Properties of Lake County, Inc., 433 F.3d 1349 (11th Cir. 2005). In that case, the plaintiff was a nurse practitioner. Walker, 433 F.3d at 1353. She alleged that her employer was bilking Medicare and Medicaid by submitting fraudulent bills. Id. The fraudulent scheme involved charging the government for services rendered by a nurse practitioner as “incident to the service ofa physician,” and therefore being paid a higher fee, despite the fact that a physician was notphysically present and only “available for consultation by pager and telephone.” Id. As proof thatthe services of a nurse practitioner were always so charged in submitted claims, the plaintiff allegedthat she did not have her own billing code, which would be required if the services were properlybilled as being delivered only by a nurse practitioner, that she was told each day “which doctor shewould be billing under,” and that the office administrator had told her, after the plaintiff had askedwhy she did not have her own billing code, that the employer always billed nurse practitioners’services as “incident to the service of a physician.” Id. at 1360. Ms. Marlar’s allegations do notcome close to these concrete factual allegations that the Eleventh Circuit found permitted aninference that false claims were actually submitted to the government.

B. Claims under Subsections (a)(2) and (a)(3)

Ms. Marlar has similarly failed to comply with Rule 9(b) regarding her claims under 31

U.S.C. § 3729(a)(2) and (a)(3). While Ms. Marlar is correct that we have previously held that proofof “presentment” is not required for actions under subsections (a)(2) and (a)(3), Thacker, 471 F.3d

at 614-15,1 we have repeatedly held that proof of a false claim is required, e.g., id. at 621 (“Forliability . . . under subsection (a)(2), the government . . . would have to present sufficient evidencefrom which the trier of fact could conclude that . . . use of the false statement resulted in the payment of a claim by the government.”); Bledsoe II, 501 F.3d at 504 (“We hold that pleading an actual falseclaim with particularity[, as opposed to a false scheme,] is an indispensable element of a complaintthat alleges a FCA violation in compliance with Rule 9(b).”); see also Fowler, 730 F.3d at 742 (“Both sections [(a)(1) and (a)(2)] require a false claim or statement and knowledge that the claimor statement is false.”). Indeed, we have agreed with the Eleventh Circuit that a “fraudulent claim is ‘the sine qua non of a False claims Act violation.’ ” Sanderson, 447 F.3d at 878 (quoting United States ex rel. Clausen v. Lab. Corp. of Am., 290 F.3d 1301, 1311 (11th Cir. 2002)). The text of the subsections confirm our interpretation, as both subsections refer to “a false or fraudulent claim.”31 U.S.C. § 3729(a)(2), (a)(3).

Ms. Marlar has failed to allege facts regarding “a false or fraudulent claim.” See id. A “claim” at least requires a “request or demand . . . for money or property.” Id. § 3729(c).Ms. Marlar’s specific factual allegations, however, only refer to omissions in medical records. The only pertinent, specific paragraphs in her complaint generally allege that on particular dates or inparticular years an employee was given a prescription drug or prescription device, but the medicalrecords failed to reflect that such a prescription was provided. Medical records, however, are not a “request or demand . . . for money or property.” Id. § 3729(c).

Ms. Marlar has also failed to allege specific facts to establish that the medical records werealways, or ever, used to compile BWXT’s claims, namely its certifications regarding itsperformance, which included work-related injuries and illnesses. Instead, Ms. Marlar only alleges“[o]n information and belief” that reports “provided by the [Environment, Safety, and Health]Division to the senior management of BWXT were based on systematic and significantunderreporting of work-related injuries and illnesses and time missed from work,” and that thesenior management then used this information to compile and submit certifications to DOE. J.A. at 18-19 (Compl. ¶ 53-55).

Ms. Marlar has provided no factual allegations, let alone specific factual allegations,regarding how reports regarding work-related injuries and illnesses were compiled by the Environment, Safety, and Health division. For instance, OHS, the subdivision of the Environment, Safety, and Health division for which Ms. Marlar worked, may have reported work-related injuriesand illnesses to Environment, Safety, and Health staff. Alternatively, Environment, Safety, andHealth staff may have gathered the pertinent information themselves. Either way, it is unknown howsuch information was in fact gathered (i.e., it is unknown if the information was gathered from theallegedly false medical records). “ ‘[T]he False Claims Act does not create liability merely for a[claimant’s] disregard of Government regulations or improper internal policies unless, as a resultof such acts, the [claimant]’ ” makes a false claim. See Atkins, 470 F.3d at 1357 (quoting Clausen, 290 F.3d at 1311). Just because BWXT may have maintained incomplete or sloppy medical records,it does not necessarily follow that BWXT also submitted certifications to DOE that underrepresented the number of work-related accidents and illnesses. BWXT could, for instance, have had an alternate reporting system for collecting information regarding work-related injuries andillnesses so that it could ensure that its certifications to DOE were accurate. Ms. Marlar has alleged

1 We note that the Supreme Court has granted certiorari in Thacker to decide whether “presentment” is in fact required by subsections (a)(2) and (a)(3). Allison Engine Co. v. United States ex rel. Sanders, 128 S. Ct. 491 (2007).Because Ms. Marlar’s claims under subsections (a)(2) and (a)(3) are not pleaded with the specificity required by Rule9(b) even absent a “presentment” requirement, we see no need to await the Supreme Court’s decision.

no specific facts to refute such a hypothesis.2 Ms. Marlar’s claims under subsections (a)(2) and(a)(3), therefore, do not comply with Rule 9(b) because they fail to allege a false claim withspecificity.3

II. Compliance of Claim under 31 U.S.C. § 3730(h) with Rule 8(a)(2)

Federal Rule of Civil Procedure 8(a)(2) requires a plaintiff’s complaint to include “a shortand plain statement of the claim showing that the pleader is entitled to relief.” A claim under 31

U.S.C. § 3730(h) requires proof that the plaintiff was “(1) [] engaged in a protected activity; (2)[that] his employer knew that he engaged in the protected activity; and (3) [that] his employerdischarged or otherwise discriminated against the employee as a result of the protected activity.”Yuhasz, 341 F.3d at 566. “Protected activity” means “lawful acts done by the employee on behalfof the employee or others in furtherance of an [FCA] action, including investigation for, initiationof, testimony for, or assistance in an [FCA] action filed or to be filed . . . .” 31 U.S.C. § 3730(h).

Ms. Marlar has complied with Rule 8(a)(2) regarding her claim under 31 U.S.C. § 3730(h).Specifically, Ms. Marlar has pleaded that she repeatedly “objected to her superiors” about theinaccurate medical records discussed above. J.A. at 19 (Compl. ¶ 57). She raised similar objectionsduring “an open forum where employees could express grievances or complaints.” J.A. at 19 (Compl. ¶ 58). Ms. Marlar alleges that “as a result of these actions,” she “was placed onadministrative leave.” J.A. at 19 (Compl. ¶ 59).

While these allegations likely do not suffice to show that BWXT was on notice ofMs. Marlar’s protected activity, see Yuhasz, 341 F.3d at 566 (element (2)),4 Ms. Marlar alleges thatshe took further steps that would constitute notice to BWXT. Specifically, Ms. Marlar alleges thatshe wrote a letter to the president and general manager of BWXT, Mr. Ruddy, asserting that she hadbeen placed on administrative leave “because she refused to participate in illegal activities at OHS.[The letter further] stated that the illegal activities included the under[-]reporting of occupationalinjuries and illnesses resulting in large incentive payments to BWXT under the contract [withDOE].” J.A. at 19 (Compl. ¶ 60). When BWXT asked for more information regarding the alleged“illegal activities,” Ms. Marlar told BWXT that “there was under-reporting of work-related injuriesand illnesses.” J.A. at 20 (Compl. ¶ 63). Ms. Marlar’s allegations, if true, would mean that BWXThad defrauded the United States government, and Ms. Marlar made it clear that she understood thatbecause she stated that BWXT’s activities, which she more precisely defined as “under-reportingof work-related injuries and illnesses,” were “illegal” and that BWXT obtained “large incentivepayments” pursuant to the DOE contract because of its “illegal activities.”

2 Ms. Marlar alleges, for instance, that “[t]he only information upon which [Environment, Safety, and Health] could have based its report, insofar as it related to its OHS[] component, was contained in the [medical] reports [Ms.Marlar] knew to be false.” J.A. at 34. This allegation, however, is not, as discussed above, obviously true on its face, as Ms. Marlar assumes it to be.

3 This rationale, Ms. Marlar’s failure to plead a false claim with specificity, provides an alternative basis fordismissal of Ms. Marlar’s claims under subsection (a)(1). Subsection (a)(1) similarly requires, in addition to “presentment,” that there be “a false or fraudulent claim.” 31 U.S.C. § 3729(a)(1). It is inadequate to simply allege thatmedical records were incorrect, and therefore assume, without any factual basis, that certifications to DOE regardingevents that should have been included in the medical records were false. Such an assumption fails to meet Rule 9(b)’spleading requirements because it “do[es] not provide any specific information about the [certifications] allegedly[compiled].” See Bledsoe II, 501 F.3d at 512.

4 Indeed, the previous allegations fall into the category of mere “grumbling” about violations, and thereforeare not sufficient to prove BWXT was on notice regarding Ms. Marlar’s protected activity. See Yuhasz, 341 F.3d at 567

68.

The district court, however, found Ms. Marlar’s allegations regarding retaliation lackingbecause Ms. Marlar provided “no allegation from which it could be inferred that [BWXT knew that][Ms. Marlar] was considering bringing a qui tam action herself or assisting the government in bringing an FCA action.” J.A. at 60-61 (Dist. Ct. Op. at 12-13). The district court’s holding,however, impermissibly narrows the interpretation we have given “protected activity.” See United States ex rel. McKenzie v. Bellsouth Telecomms., Inc. (McKenzie I), 123 F.3d 935, 944 (6th Cir.1997). We held in McKenzie that a plaintiff must only allege activities “that would have given [thedefendant] reason to believe that she was contemplating a qui tam action.” Id. This test was drawn from Mikes v. Strauss, 889 F. Supp. 746, 753 (S.D.N.Y. 1995). Mikes found that a plaintiff isentitled to recovery under § 3730(h) when she alleges that she observed purportedly fraudulentactivity, she confronted her employer about it, and her employer fired her because of it. 889 F. Supp. at 752-53. Mikes based part of its understanding of § 3730(h) on Robertson v. Bell HelicopterTextron, Inc. 32 F.3d 948 (5th Cir. 1994). In that case, the Fifth Circuit held that “internal whistleblowers” were protected by § 3730(h). Robertson, 32 F.3d at 951. Robertson described an “internal whistleblower” as “an employee who has made an intracorporate complaint about fraudagainst the government.” Id. That complaint, the Fifth Circuit suggested, must “characterize[] [theplaintiff’s] concerns as involving illegal, unlawful or false-claims” against the government. Id. at

952.

Ms. Marlar’s complaint meets this standard. She alleges that she observed purportedlyfraudulent activity and confronted her employer about it. Specifically, Ms. Marlar told BWXT thatshe believed BWXT was receiving “illegal” “large incentive payments” under its contract with DOEbecause BWXT was “under-reporting [its employees’] work-related injuries and illnesses.” She therefore connected her complaint of BWXT’s actions, under-reporting, to a concern about fraudon the federal government. McKenzie v. BellSouth Telecomms., Inc. (McKenzie II), 219 F.3d508,516 (6th Cir. 2000) (holding that to be protected by the FCA when confronting an employer,the employee “must sufficiently allege activity with a nexus to a qui tam action, or fraud against theUnited States government”). Ms. Marlar further alleges in her complaint that because she informedBWXT of her concerns, she was terminated. Given our interpretation of “protected activity” in McKenzie, 5 Ms. Marlar has adequately pleaded that she “(1) [] engaged in a protected activity; (2)[that] his employer knew that he engaged in the protected activity; and (3) [that] his employerdischarged or otherwise discriminated against the employee as a result of the protected activity.”Yuhasz, 341 F.3d at 566.6

5 McKenzie was before us twice. In the initial appeal of the motion to dismiss, the plaintiff won reinstatementof her claim based on her pleadings. Specifically, McKenzie held that the plaintiff had sufficiently alleged protectedactivity because the plaintiff purportedly (1) showed her supervisors a newspaper article about a qui tam action againsta similar company for the same allegedly fraudulent conduct; and (2) the plaintiff had complained about the allegedlyfraudulent conduct, a complaint which was outside the scope of plaintiff’s duties. McKenzie I, 123 F.3d at 944-45. On remand, however, the district court granted summary judgment to the defendant after it found that the newspaper articlethe plaintiff had shown to her supervisors did not refer to fraud against the federal government, did not refer to a qui tamaction, and that the newspaper article had been generally distributed and displayed throughout her office. See McKenzie II, 219 F.3d at 514-15. We affirmed its judgment, finding that, absent the newspaper article as originally characterizedin her complaint, the plaintiff had failed to establish a sufficient nexus between her internal complaints and a qui tamaction. Id. at 517. A sufficient nexus was not established because while plaintiff had shown that she was under pressureto falsify records and had complained about such pressure within the company, she did not connect her complaint to aconcern about the company committing fraud against the federal government. Id.

6 Defendant for the first time asserted at oral argument that Ms. Marlar’s retaliation claim should fail becauseit was part of her official duties to report the allegedly improper activities of which she complained. Cf. Robertson, 32 F.3d at 952; see also United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 744-75 (D.C. Cir. 1998); United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1523 (10th Cir. 1996). Failure to allege this in itsbrief, however, waives the issue. See, e.g., Giesse v. Sec’y of Dept. of Health & Human Servs., __ F.3d __, No. 06-4497, slip op. at 6-7 (6th Cir. Apr. 23, 2008). Additionally, whether Ms. Marlar’s job duties included reporting the allegedconduct is an issue of fact unfit for disposal in a motion to dismiss.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment dismissing Ms. Marlar’sclaims under 31 U.S.C. § 3729, but we REVERSE, however, the district court’s judgment dismissingMs. Marlar’s retaliation claim under 31 U.S.C. § 3730, and we REMAND for proceedings consistentwith this opinion.