United States District Court, W.D. Virginia, Charlottesville Division
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Adam Augustine Carter, Robert Scott Oswald, The Employment Law Group PC, Washington, DC, for Plaintiff.
Richard Croswell Kast, University of Virginia, Charlottesville, VA, for Defendants.
NORMAN K. MOON, District Judge.
This matter, which arises out of the employment of Weihua Huang (" Dr. Huang" ) by the Rector and Visitors of the University of Virginia (" UVa" ), is before the Court on Defendants' motion for summary judgment. Previously, on December 19, 2011, 2011 WL 6329755, I issued a memorandum opinion and order in which I granted in part and denied in part Defendants' motion to dismiss. In doing so, I dismissed all claims brought against UVa, but I permitted Dr. Huang to pursue some of his claims against the individual Defendants who remain in this action.
Generally, Dr. Huang alleges that Defendants violated his right, secured by the First Amendment to the Constitution, to speak out on a matter of public concern when they retaliated against him for making disclosures about the purported misappropriation of federal grant funds. Further, Dr. Huang contends that these disclosures were protected by the False Claims Act (" FCA" ), 31 U.S.C. § 3730. Following rather extensive discovery, the parties briefed the issues raised in Defendants' motion for summary judgment, and I conducted a hearing on August 21, 2012. For the reasons that follow, I will grant in part and deny in part Defendants' motion.
In 1999, Dr. Huang began a post-doctoral fellowship at the University of Tennessee. While there, Defendant Ming Li (" Dr. Li" ) was assigned as Dr. Huang's supervisor and mentor. In 2005, Dr. Li accepted a tenured position as professor of psychiatric medicine in the Department of Psychiatry and Neurobehavioral Sciences (the " Department" ) within UVa's School of Medicine. Defendant Bankole Johnson (" Dr. Johnson" ), who was and remains the chairman of the Department, recruited Dr. Li. At Dr. Li's request, Dr. Huang also transferred to UVa at this time, accepting a temporary position as a tenure-ineligible member of the professional research staff.
According to Dr. Li, at some point in 2007, Dr. Huang began pressuring him for a promotion. Evidently, a promotion would allow Dr. Huang to renew his work visa, without which he would be forced to return to China. In August 2007, Dr. Johnson and Dr. Li decided to promote Dr. Huang despite the fact that, at the time, Dr. Huang's level of productivity was " very low" according to Dr. Li. Li Decl. ¶ 6. Prior to his promotion, Dr. Huang had no independent research space, equipment, or facilities. In other words, he was completely dependent upon Dr. Li's grants. Accordingly, Dr. Johnson and Dr. Li agreed that Dr. Huang's promotion should only occur if it was accompanied by a set of future performance expectations. In fact, they agreed that these expectations would be represented to Dr. Huang as conditions of his promotion. On August 13, 2007, Dr. Li met with Dr. Huang to go over these expectations, which included, inter alia, an improvement in Dr. Huang's research productivity and an acknowledgement that Dr. Li " would continue to be fully responsible for the research direction and projects in the lab." Li Decl. ¶ 7. The expectations were spelled out in writing, and Dr. Huang signed the letter, thus acknowledging his assent. As a result, Dr. Huang became a research assistant professor in the Department.
In April 2008, Dr. Li attempted to lower Dr. Huang's salary; however, Dr. Huang refused to agree to the salary reduction. Thereafter, on May 30, 2008, Dr. Li sent Dr. Huang a letter in which he described his disappointment with Dr. Huang's overall performance. Dr. Li's issuance of the letter seems to have been precipitated, at least in part, by the friction over Dr. Huang's salary reduction. In the letter, Dr. Li stated that Dr. Huang's performance was " far below what I expect...." Li Decl., Ex. B. Dr. Li outlined four major areas in which Dr. Huang was expected to improve. Among other things, Dr. Li cited Dr. Huang's " low and unacceptable productivity" with respect to publishing. Id. Notably, though, these complaints were absent from Dr. Huang's annual performance review for the period July 2007 through June 2008. In fact, in that evaluation, Dr. Li graded Dr. Huang's research and publication as " commendable." Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 16.
On September 16, 2008, Dr. Huang emailed Dr. Li, stating his desire to be the principal investigator (" PI" ), or at least co-PI, on a National Institutes of Health (" NIH" ) grant resubmission. Dr. Li declined via email, writing that Dr. Huang was " not there yet." Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 36. Ultimately, Dr. Li listed Dr. Huang as a co-investigator, instead of co-PI, on this grant resubmission.
Later in September 2008, Dr. Huang submitted his own proposal for an NIH grant to fund a research project called " Functional Characterization of ANKK1 and its Genetic Variants" (the " ANKK1 grant" ). Without Dr. Li's permission or knowledge, Dr. Huang listed himself as the sole PI and Dr. Li as a co-investigator in the budgeted personnel for the grant. After learning of this conduct, Dr. Li wrote Dr. Huang a letter on October 10, 2008, informing him that such behavior was " unacceptable" and " unethical" and, should such misconduct recur, Dr. Huang would " face serious consequences up to and including termination." Li Decl. ¶ 13. However, Dr. Huang denies having ever received this letter. On October 16, 2008, Dr. Huang emailed Dr. Li to apologize for the aforementioned conduct. The next day, Dr. Li accepted Dr. Huang's apology. Additionally, Dr. Li agreed that, in the event the NIH awarded the ANKK1 grant, he would serve as a co-investigator and permit Dr. Huang to utilize his laboratory to conduct the relevant research. Ultimately, Dr. Johnson and the Department approved Dr. Huang's proposal for submission to the NIH.
On January 23, 2009, Dr. Huang met with Dr. Li and Dr. Johnson to discuss Dr. Huang's duties and expectations. The next day, in advance of an evaluation that Dr. Huang was evidently about to have with Dr. Johnson, Dr. Li emailed the following to Dr. Johnson in reference to Dr. Huang:
After your evaluation is over, we have to find way to take care of this issue. He has been this way for a couple of years and I am so tired and feel hopeless for this situation. He never show too much appreciation for whatever he gets. He always think he is right and he deserves more and better. I have been " back-up" so many times but I never see an end. This is why I feel that, this time, I must keep my words and do not change my decision. I know if I let him to win this one through you, he will have another one (which will destroy both of us). I cannot be so nice anymore to him. To be honest, I never see second person like him among more than 50 students, postdoctoral fellows and technicians who have been worked for me. I wish I did not change his visa and let him go at
that time. But I never expect he becomes so ‘ selfish’ and ‘ untrusted.’
Johnson Aff., Ex. B (quoted verbatim).
Eventually, in June 2009, the NIH approved the ANKK1 grant for a period to run from June 15, 2009 through February 28, 2011, with Dr. Huang serving as the principal investigator. Dr. Huang proposed to allocate 50% of his time, referred to as level of effort, to the ANKK1 grant, and he listed Dr. Li's supervisory effort as 5%. Additionally, it should be noted that, in his grant proposal, Dr. Huang had specified that two additional co-investigators would be recruited to assist with research.
In August 2009, Dr. Huang used a UVa-issued purchasing card to buy a $4,500 laptop computer for the purpose of conducting data analysis in furtherance of his grant research. On August 26, 2009, Dr. Li told Dr. Huang via email to cancel the order because Dr. Huang had failed to comply with proper procedures in using the purchasing card as such and had not obtained permission to buy the laptop. In his response, Dr. Huang wrote to Dr. Li:
Since you do not allow me to recruit any person for my project, I have to do data analysis by myself in addition to doing bench works at the lab. So I have to work day and night to catch up the progress as I proposed in my project. As such, I think purchasing a qualified laptop workstation is appropriate and necessary to accomplish my project successfully.
I was and am not aware that this purchasing is against any university purchasing regulation. If you are aware of, please do let me know the detailed university policy so that I can follow. Otherwise, I am afraid that I cannot cancel this order.
Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 55 (quoted verbatim).
Dr. Li wrote back to Dr. Huang, stressing the necessity of obtaining approval before ordering such costly items, even if the money for the purchase comes out of one's grant funds. Initially, Dr. Huang further ignored instructions from Dr. Johnson and Gregory Benham (" Mr. Benham" ), the Chief Operating Officer of the Department, to return the laptop and refund the money. Eventually, though, on September 1, 2009, Dr. Huang emailed Mr. Benham, stating that he had apprised himself of the relevant purchasing guidelines. Dr. Huang further represented that, had he been aware of these guidelines, he would not have purchased the laptop without approval. The parties do not appear to dispute the fact that, around this time, Dr. Huang returned the laptop.
In his email to Mr. Benham on September 1, 2009, Dr. Huang raised the separate issue of the availability of monthly financial reports for the ANKK1 grant. Dr. Huang wrote: " By going through university policies about grant management these days, I happened to learn that the university requires timely review of expenditures occurring at least once a month. However, till now I have not received any monthly expenditure review yet about my grant account." Benham Aff., Ex. D. Evidently, Dr. Huang inquired of Mr. Benham about this issue after having not received a response from Lisa Franco (" Ms. Franco" ), the fiscal contact for grants in the Department, despite having emailed her on August 30, 2009.
On September 2, 2009, Dr. Huang again emailed Mr. Benham about the monthly reports. Later that day, Mr. Benham responded, stating that the reports were being
processed and that other questions regarding grant expenses should be directed to Dr. Li. Dr. Huang replied to Mr. Benham on the night of September 2, insisting that, surely the reports for June and July should have already been prepared, and again requesting that they be provided to him. Dr. Huang added: " As you know, I have the primary responsibility for the grant management. If I cannot receive these monthly reviews promptly or if there is something wrong with them, I have to report promptly to the Department Chair, the [Office of Sponsored Programs] and/or the University Audit Department." Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 34. At this point, Mr. Benham forwarded the email chain to Dr. Li.
The next day, September 3, 2009, Dr. Li wrote to Mr. Benham as follows:
Can you call me such that we can look at this issue? I know Lisa [Franco] will release the reports for July and August; if possible, please hold little bit. I have concern to let this guy to know personal information. This is the reason I did not support his application earlier.
Id. (quoted verbatim). Thereafter, Mr. Benham wrote back, stating that he had asked Ms. Franco to " hold things." Id. Dr. Li replied, copying Dr. Johnson on the email and stating:
I talked with Huang today and it is clear that he wants to use all my lab space, instruments, and materials but does not want to share with me. He even does not think he needs to discuss with me on what he is doing. He thinks he is the boss and can do whatever he wants in my lab for his research because he has his own grant (although he used all data from my lab for his proposal; I even did not bother it). I really cannot work under this situation. It is time to do proper paper work and let him go. Too much headache for me.
Id. (quoted verbatim).
The next day, September 4, 2009, Mr. Benham sent an email to Ellen Missana (" Ms. Missana" ), Director of Human Resources for UVa's School of Medicine, asking her for advice on how to proceed with, as the subject of the email stated, an " Issue of Faculty Insubordination." Benham Aff., Ex. E. The content of Mr. Benham's email reveals that he wished to initiate a discussion about terminating Dr. Huang's employment because of the resistance Dr. Huang had displayed to the numerous directives instructing him to return the laptop. Incidentally, the same day, Dr. Huang emailed Dr. Johnson in order to express his as yet unaddressed concern regarding receipt of the monthly financial reports for the grant. Specifically, he wrote:
By going through university policies about grant management, I learned that the university requires timely review of expenditures occurring at least once a month for the previous month's activity.... [T]ill now I have not yet received any monthly expenditure review. I think this is sort of abnormal. As the principal investigator of this research grant, I have the primary responsibility for the grant management according to the university policy. So, I am writing you to report this issue. I suspect that someone, not me, is controlling over my grant account, which is against the university regulation. Could you please help me find out as soon as possible what is going on with my grant account? Also, could you please advise me if I need report this issue as well to the Office of Sponsored Programs and/or the University Audit Department in case there is something fraudulent occurred in my grant account?
Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 33 (quoted verbatim). In his reply, Dr. Johnson suggested that Dr. Huang work with Mr. Benham in order to receive the reports.
Ms. Missana responded to Mr. Benham's email on September 23, 2009, stating her opinion that she, Mr. Benham, and Dr. Li should meet to agree on a plan of action. According to Dr. Johnson and Mr. Benham, this group of individuals eventually decided that the best course of action would be to issue a notice of non-renewal to Dr. Huang. However, neither Dr. Johnson nor Mr. Benham attests to precisely when this group came to that conclusion.
On September 29, 2009, Dr. Li emailed Dr. Huang to inform him that the monthly status reports were in his office. " If you want to see, you come to my office to look at them and then bring them back," Dr. Li wrote. Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 35. Dr. Huang eventually obtained the monthly reports for July and August 2009. Upon reviewing them, he discovered that Dr. Li had changed the levels of effort charged to the ANKK1 grant without his authorization. Specifically, Dr. Li had assigned 50% of the time of laboratory coordinator Nicole Gautier (" Ms. Gautier" ) to the ANKK1 grant, had increased his own level from 5% to 7.5%, and had increased Dr. Huang's level of effort from 50% to 75%. However, these changes did not, according to Dr. Huang, reflect the work that was actually being conducted on the grant. While Ms. Gautier generally provided services to the laboratory, she was not an investigator or researcher on the ANKK1 grant. In fact, during her deposition testimony, she claimed not to have known that there was an ANKK1 grant at the time that Dr. Li was charging part of her salary to it. According to Dr. Huang, the alterations allowed Dr. Li to devote his and Ms. Gautier's time to other research projects, yet draw money from the ANKK1 grant to pay unrelated salaries and expenses. Further, these changes were unauthorized; Dr. Huang was the principal investigator with, as he has described it, " responsibility to allocate, alter, and approve any level of effort charged to the project account," and yet he had not approved the changes. Am. Compl. ¶ 38.
According to Dr. Huang, because he believed that Dr. Li's actions represented a misappropriation of federal funds, he orally reported the unauthorized modifications to Dr. Johnson on October 12, 2009. Dr. Johnson conceded in his deposition that he did speak with Dr. Huang about this issue on that date. Dr. Huang claims that, although Dr. Johnson did not acknowledge that Dr. Li's actions were inappropriate or unlawful, Dr. Johnson did assure him that the changes would be readjusted and any money that had been withdrawn would be refunded.
At this point, it should be noted that Dr. Huang's suspicions were fueled in part by conversations he had with a former research assistant professor at UVa, Xiang-Yang Lou (" Dr. Lou" ). From 2005 to 2009, Dr. Lou was employed at UVa, and Dr. Li served as his mentor as well. During his time at UVa, Dr. Lou was also a principal investigator on an NIH-sponsored grant. According to Dr. Lou, when
he reviewed his relinquishment statement and the monthly status reports for his grant, he noticed that somebody had assigned levels of effort to Ms. Gautier even though she did not work on his grant. In a declaration, Dr. Lou states his belief that Dr. Li was behind this and other misallocations. In fact, Dr. Lou contacted Dr. Li to discuss, among other things, these misallocations:
In response to asking about the funds Dr. Li became irritated with me and hung up the phone before our conversation was concluded. After speaking with Dr. Li about the misallocation of funds I felt intimidated by Dr. Li's implied negativity. Dr. Li's tone and volume made it clear to me that he did not want to discuss the topic of the funds. Further attempts to speak with Dr. Li resulted in hung up phone calls.
Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 29. Evidently, Dr. Lou communicated his experience with Dr. Li to Dr. Huang in August 2009, just before Dr. Huang began inquiring about the availability of the monthly reports.
On October 23, 2009, Dr. Huang certified Ms. Gautier's level of effort as 0% on her effort report for the period April 2009 through June 2009 because she had not performed any work on the ANKK1 grant and Dr. Huang had not approved her assignment to the grant. However, Dr. Huang's certification was rejected. On October 30, 2009, Dr. Johnson drafted a letter to Dr. Li and Dr. Huang in which he summarized his review of " the issues raised with respect to the conduct of your respective grants and the lines of authority within the section." Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 56. In doing so, Dr. Johnson listed nine steps to serve as a resolution. Notably, this draft letter did not include any reference to Dr. Huang's termination or non-renewal.
On November 20, 2009, Dr. Huang received a notice of non-renewal from Dr. Johnson and the dean of the School of Medicine, informing him that UVa would not be renewing his employment contract and that his appointment would end one year later on November 19, 2010. The notice stated: " This intended decision is based upon the development of serious issues concerning your professional relationships with your supervisor, Dr. Li. These issues have negatively impacted Dr. Li's assessment of your performance in your position." Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 31. The notice of non-renewal was also accompanied by eight terms intended to govern the remaining year of Dr. Huang's employment in the Department. According to Defendants, one of the central purposes of implementing these terms was to ensure that, while Dr. Huang remained employed by UVa, his time could be spent productively on his research endeavors. However, according
to Dr. Huang, these terms ultimately restricted his ability to conduct research and effectively breached Defendants' commitment to the NIH to provide him resources and adequate space necessary to complete his grant work.
On January 29, 2010, Dr. Huang certified Ms. Gautier's level of effort for the period July 2009 through September 2009 as 0%, noting on the report that she " had nothing to do with this project." Pl.'s Mem. Opp'n Mot. Summ. J, Ex. 43. However, Dr. Huang claims that his certification of her effort as such was again rejected.
On February 18, 2010, Dr. Johnson wrote to Dr. Huang, informing him that he had been routinely failing to comply with the terms set forth in the non-renewal letter that governed the remainder of his employment. Specifically, the letter cited: (1) Dr. Huang's failure to provide Dr. Li with updates of his work every two weeks; (2) Dr. Huang's utilization of Dr. Li's laboratory supplies without permission; (3) Dr. Huang's use of Dr. Li's laboratory equipment without permission; and (4) Dr. Huang's failure to vacate his prior work space and move to a new work space. Dr. Johnson further communicated that Dr. Huang was " facing possible disciplinary action up to and including termination," and he asked Dr. Huang to respond to the concerns outlined in the letter. Johnson Aff., Ex. D. However, Dr. Huang ignored Dr. Johnson's request for a response. Instead, Dr. Huang filed a grievance with the Faculty Senate Grievance Committee (" FSGC" ) on February 23, 2010. The FSGC accepted Dr. Huang's grievance for investigation on March 23, 2010.
On March 31, 2010, Dr. Johnson submitted a lengthy letter to the FSGC in which he described the history of Dr. Huang's employment with the Department as well as his and Dr. Li's interactions with Dr. Huang. In addition to outlining the various issues that had arisen in the course of Dr. Huang's employment, Dr. Johnson noted at the end of the letter that, " during my counseling sessions with Dr. Huang, I have found him to be unresponsive to suggestions to correct his behavior and, at times, threatening and hostile." Johnson Aff., Ex. E.
On May 11, 2010, Dr. Huang orally complained to UVa's ombudsman that he had been retaliated and discriminated against as a result of having reported Dr. Li's alleged misallocation of grant funds.
While the FSGC's investigation was still pending, Sharon Hostler (" Dr. Hostler" ), the Senior Associate Dean of the School of Medicine, wrote a letter to Dr. Huang, dated May 14, 2010, in which she notified him that the school was also investigating his employment situation and, accordingly, that he would be placed on administrative leave with pay, effective immediately. Dr. Hostler informed Dr. Huang that he was facing termination ...