UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 17-1722


UNITED STATES EX REL. KEVIN CODY AND MUGE CODY,

            Plaintiff – Appellee,

v.

MANTECH INTERNATIONAL, Corporation,

            Defendant – Appellant.


                                      No. 17-1757


UNITED STATES EX REL. KEVIN CODY AND MUGE CODY,

            Plaintiff – Appellant,

v.

MANTECH INTERNATIONAL, Corporation,

            Defendant – Appellee.


Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony John Trenga, District Judge. (1:16-cv-00132-AJT-JFA)


Argued: March 20, 2018                                       Decided: August 8, 2018


Before MOTZ, TRAXLER, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, dismissed in part, and remanded by unpublished
opinion. Judge Traxler wrote the majority opinion, in which Judge Motz joined. Judge
Diaz wrote an opinion dissenting in part.


ARGUED: Steven D. Gordon, HOLLAND & KNIGHT LLP, Washington, D.C., for
Appellant/Cross-Appellee. Robert Scott Oswald, EMPLOYMENT LAW GROUP, PC,
Washington, D.C., for Appellee/Cross-Appellant. ON BRIEF: Jessica L. Farmer,
HOLLAND & KNIGHT LLP, Washington, D.C., for Appellant/Cross-Appellee.
Nicholas Woodfield, John T. Harrington, Jr., EMPLOYMENT LAW GROUP, PC,
Washington, D.C., for Appellee/Cross-Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                            2
TRAXLER, Circuit Judge:

      Plaintiffs Kevin and Muge Cody brought this qui tam action against ManTech

International Corporation, alleging numerous claims including retaliatory discharge in

violation of both the False Claims Act (“FCA”), see 31 U.S.C. § 3730, and the Defense

Contractor Whistleblower Protection Act (“DCWPA”), see 10 U.S.C. § 2409. A jury

found in favor of the Codys, and awarded compensatory damages for emotional distress

to Kevin in the amount of $500,000 and to Muge in the amount of $300,000. Following

the verdict, ManTech moved for judgment as a matter of law under Rule 50(b) of the

Federal Rules of Civil Procedure. In its motion, ManTech argued that the evidence

presented at trial was insufficient to establish that ManTech terminated the Codys

because they filed this action. ManTech further argued that the evidence was insufficient

to support an award of damages for emotional distress, or, alternatively, that the

emotional distress damages awarded by the jury were excessive and that the district court

should have either remitted them or ordered a new trial on damages.

      The district court denied the Rule 50(b) motion as to liability and upheld the jury’s

verdict in favor of the Codys on their retaliation claims under the FCA and the DCWPA. 1

However, the district court granted ManTech’s Rule 50(b) motion “insofar as the Court

f[ound] the evidence at trial insufficient to support the jury’s compensatory damage



      1
       By separate order, the district court, having upheld the jury verdict as to
ManTech’s liability on the retaliation claims, awarded back and front pay to both Kevin
and Muge.



                                            3
awards for emotional distress,” J.A. 548, and vacated the award of emotional distress

damages.

       ManTech appeals, renewing its argument that the evidence presented at trial was

insufficient as a matter of law to establish the causation element of the Codys’ retaliatory

discharge claims under both the FCA and the DCWPA. The Codys cross appeal the

district court’s partial grant of ManTech’s Rule 50(b) motion, arguing that the district

court erred in finding that the evidence did not support any award of damages for

emotional distress. The Codys contend further that the district court compounded this

perceived error by vacating this award of damages and entering final judgment rather

than granting a new trial nisi remittitur.

       As set forth in more detail below, we affirm the district court’s denial of

ManTech’s Rule 50(b) motion as to Kevin’s retaliation claims. As to Muge, however, we

agree with ManTech that the evidence presented at trial was insufficient as a matter of

law to establish a causal nexus between the protected activity at issue—the filing of this

qui tam action—and her discharge from ManTech. Accordingly, we reverse the district

court’s denial of ManTech’s Rule 50(b) motion as it relates to Muge Cody, and we vacate

the verdict as to Muge, as well as the accompanying damages awarded to Muge. Finally,

we also affirm the district court’s order to the extent it granted ManTech’s Rule 50(b)

motion for judgment as a matter of law as to emotional distress damages for Kevin and

vacated the jury’s award of such damages. We remand this case for entry of an amended

final judgment in accordance with this opinion.




                                             4
                                           I.

      We summarize the evidence in the light most favorable to Kevin and Muge, who

were the non-moving parties below. ManTech is an industry-leading defense contractor

specializing in the provision of “technological services” to the government of the United

States. J.A. 60. Kevin started working at ManTech in 1990, rising “steadily within

ManTech, eventually becoming President of the Business Unit that managed large

contracts with the United States Army Tank-Automotive and Armaments Command

(“TACOM”) for the maintenance of Mine Resistant Ambush Protected (“MRAP”)

vehicles in Afghanistan and Kuwait.”      J.A. 548.    Muge Cody began working for

ManTech in 2001. The Codys met while working together at ManTech and married in

2006. Muge worked in Kevin’s business unit but formally reported to another executive.

Muge eventually became the program manager (“PM”) for the MRAP program—an

important position largely responsible for day-to-day performance on ManTech’s largest

contract. Both of the Codys interacted on a daily basis with the Army’s contracting

officer for the MRAP program and enjoyed a close working relationship with him.

              The 2011-2012 Bidding Competition for the MRAP Contract

      From the fall of 2011 to the spring of 2012, the Army conducted a bidding

competition for a new 5-year contract for the maintenance of MRAP vehicles in

Afghanistan and Kuwait. Kevin was on the bid proposal team tasked with securing the

MRAP contract for ManTech. Specifically, Kevin was helping to develop the pricing

component for ManTech’s bid.       Muge was likewise involved in developing certain

aspects of ManTech’s proposal.


                                           5
       During the bidding process, Kevin became concerned that ManTech was

significantly underestimating the labor costs associated with the performance of the

MRAP contract—specifically, “the amount that ManTech said it would pay its

mechanics.” J.A. 757. Kevin expressed his concerns to other employees working on

pricing the bid during meetings and in numerous emails. Other members of the pricing

team did not share Kevin’s concerns, however, and the final proposal for the new MRAP

contract was submitted in April 2012. At that time, Kevin sent a final email to the team

reiterating that he did not concur in the pricing component of the proposal.

       ManTech won the MRAP contract and, for the rest of 2012, the performance and

management of the MRAP program—ManTech’s largest contract—remained with

Kevin’s business unit. In late 2012, Kevin learned that the rates associated with the

performance of the MRAP contract were being overrun—that is, the actual costs to

perform the contract were greater than ManTech had estimated in developing its bid.

Kevin directed that the cost overruns be investigated by his business to identify “what the

issues were” and “present [them] to leadership.” J.A. 1160.

                 ManTech’s Removal of Kevin from the MRAP Contract

       In December 2012, ManTech decided to remove Kevin as the executive

overseeing the MRAP contract. Lou Addeo, who was then President of ManTech’s

Technical Services Group (“TSG”), met with Kevin on December 19 and informed him

that he was being replaced on the MRAP contract by Mike Brogan. Kevin was told that

this change, in part, was due to purported behavioral issues involving Muge. Although

Muge was to remain as PM on the MRAP contract, ManTech thought it best that she


                                             6
work outside of her husband’s direct chain-of-command and report instead to Brogan.

Alex Urbina, the Army’s contracting officer for the MRAP contract, interacted with

Muge on a daily basis and was never made aware that anyone at ManTech had any

concerns about the Codys being a married couple while they worked on the same

contract. He had no concerns about their relationship, and it did not affect the way they

worked together.

      Dan Keefe, Executive Vice President for TSG, was present at this meeting and

subsequently drafted a memo summarizing the points covered in the meeting, including

ManTech’s stated reasons for taking management responsibility over the MRAP contract

away from Kevin: (1) that Muge’s “personal behavior towards her managers and the

larger functional team has become unacceptable and require[s] a new management team

to address,” and (2) that because the MRAP contract was a “terminal” program, ManTech

needed Kevin to focus on developing “new business.” J.A. 1846. 2

      Addeo then met with Muge and told her that the MRAP contract and her business

unit would “not be under Kevin . . . anymore” and that, as PM for the MRAP contract,

she would “be reporting to Mike Brogan” from then on. J.A. 1357. Additionally, Addeo

informed Muge that a deputy program manager would be appointed to assist her.

Subsequently, Nate Webster was hired to serve in the newly-created position of Deputy


      2
         In this context, a “terminal” program is one that is “mission oriented” and
“unsustainable.” J.A. 821. The MRAP program was a “terminal program” because it
could continue only as long as troops remained at the required levels in Afghanistan and
Kuwait.



                                           7
PM for the MRAP contract. Because the Deputy PM was not an approved position under

the MRAP contract, Webster had to be paid as an “indirect” employee—his salary was an

overhead expense that could not be billed to the MRAP contract. J.A. 1389.        At this

time, ManTech was also laying off numerous employees from Muge’s MRAP staff.

Once the MRAP contract came under Brogan’s supervision, the Army’s contracting

officer Urbina noticed “decreases in velocity, in management and decision-making and

coordination between management.” J.A. 450.

      Finally, Addeo told Muge that there had been complaints about how she treated

subordinates and that she would be “chang[ing] [her] behavior,” but he did not identify

any specific conduct that needed to be changed. J.A. 1358. Bonnie Cook, an Executive

Vice President of the TSG, was present for this meeting and prepared a memorandum

summarizing it. During the meetings on December 19, 2012, Addeo did not provide any

details to Muge or Kevin regarding Muge’s “behavioral issues” referenced in the memo

he presented to her. He did not describe the specifics of any verbal complaints about her

behavior; he did not present any written complaints to her; and he did not ask her to

respond or provide her side of events with relation to any specific complaints. Indeed,

Addeo never interviewed any of the individuals who purportedly complained about Muge

Cody, and he did not order that she attend any kind of training. And Keefe never showed

Muge a copy of any written complaint; did not take any notes of any conversations that

he had with the people who purportedly complained about Muge; and did not share with

Muge or Kevin the memo he wrote summarizing the purported December 2012

complaints against Muge.


                                           8
       In January 2013, Kevin sent an email to ManTech’s Chief Compliance Officer,

Terry Myers, stating, “I am concerned ManTech intends to retaliate against us because of

legitimate complaints we’ve made about ManTech’s internal/financial controls and

accounting during the MRAP . . . proposal and bidding process.” J.A. 1850. Muge sent a

similar email to Myers, stating that she was likewise “concerned that ManTech intends to

retaliate against [her] because of legitimate complaints” lodged by her and Kevin

regarding ManTech’s bid on the MRAP contract. J.A. 1851. In February 2013, the

Codys met with Myers to discuss the concerns raised in their emails. During the meeting,

Kevin articulated his belief that the removal of the MRAP contract from his Business

Unit was an act of retaliation for expressing his pricing concerns during the MRAP bid

proposal process.

       Myers then interviewed Addeo, who stated that “[i]f [the Codys] are wrangling

about the government getting screwed, they are getting paid for it.” J.A. 364. He also

said, “It’s an offense that we let them go this far. . . . They don’t care about ManTech,

and they are officers of the company.” J.A. 365. Addeo “didn’t think they had any right

to complain” given the generous compensation they had received from ManTech. J.A.

806. In short, Addeo felt that the Codys, “as officers of the company . . . were being

disloyal.” 

her investigation of the Codys’ allegations in May 2013

and advised them that she had found no evidence of improprieties, retaliation or financial

irregularities.

            Events Following Kevin’s Removal as Executive in charge of MRAP




                                            9
      In the spring and summer of 2013, Kevin and Muge lodged several additional

complaints concerning their fear of retaliation. In March and June 2013, Muge emailed

Margo Mentus, Senior Vice President of Human Resources, complaining that she had

been excluded from certain communications sent to the rest of her MRAP team, including

her new deputy. And, in June 2013, Muge complained to Mentus that she had been

bullied and harassed by various co-workers. On June 20, 2013, Kevin sent an email to

Mentus in which he repeated his belief that the removal of the MRAP Contract from his

Business Unit was a demotion made in retaliation for concerns he raised about the pricing

of the MRAP Contract proposal.

      On June 26, 2013, Keefe, who had succeeded Addeo as TSG President, met with

each of the Codys about their complaints. He informed each of them that internal

reviews found no evidence of compliance irregularities with respect to the MRAP

proposal and no evidence of retaliation against them. Subsequently, Muge received a

memo from Keefe through which she learned for the first time that there had been “over a

dozen complaints” about her during the previous five-year period. J.A. 1363. No one

from ManTech’s Human Resources Department had ever contacted her about such

complaints, which, according to Keefe, concerned unprofessional forms of workplace

communication such as yelling and cursing. Army MRAP contracting officer Urbina,

however, had observed Muge on a daily basis interacting with her subordinates and co-

workers and had never witnessed such behavior from her. On July 12, 2013, Kevin and

Muge objected to the results of ManTech’s internal review in an email to Keefe.




                                           10
      In October 2013, ManTech moved Kevin completely out of his former business

unit and offered him a senior vice president position in ManTech’s corporate

headquarters, at the same executive grade and compensation. This corporate position did

not exist before Kevin filled it, apparently having been created by CFO Kevin Phillips at

Keefe’s direction, and the position ceased to exist following Kevin’s subsequent

termination. Kevin’s new senior corporate VP position carried few, if any, duties and

responsibilities, and Kevin learned he was essentially being asked to “oversee” tasks and

assignments that already had “owners” and “were already being performed by other

people.” J.A. 1192.

                      The Filing of the Codys’ Lawsuit Under Seal

       On December 12, 2013, the Codys filed this action under seal in the Central

District of California. The complaint alleged that ManTech had engaged in fraud with

respect to the pricing of the MRAP Contract and that it had retaliated against the Codys

for trying to prevent the fraud. Both claims were asserted under the FCA.

       On April 29, 2014, Kevin complained by email about the size of his annual salary

increase, his stock option award, and his bonus for 2013, and speculated that his

compensation had been lowered in retaliation for his complaints about cost overruns on

the MRAP contract during the initial months of contract performance. Addeo met with

Kevin and took the position that Kevin’s pay increase had been higher than the average

for corporate executives at his pay grade, that his bonus was significantly higher than the

average bonus awarded to same-grade executives, and that his stock option award

matched the average award as well.


                                            11
      On June 27, 2014, Kevin met again with ManTech’s CCO Myers and reiterated

the complaints he made in January 2013. And, on October 7 and 31, and on December

16, 2014, Kevin sent additional emails to Myers raising new allegations of misconduct

relating to ManTech’s cost accounting practices.       Myers investigated all of these

allegations and determined that they were without merit.

      Around the same time, James Maguire, a former ManTech executive, revealed to

ManTech that he had been contacted by an investigator from the Department of Defense

Office about the pricing on the MRAP contract. Phillips and Keefe assumed “either one

of the Codys had made a complaint, or if the Codys may have had a complaint to one of

their customers, the customer may have made the complaint.” J.A. 1488.

                     Events After the Codys’ Lawsuit was Unsealed

      On November 21, 2014, after the United States declined to intervene in the action,

the complaint was unsealed. ManTech, however, did not learn about the lawsuit until

December 23, 2014, when counsel for the Codys sent a letter to ManTech directing it to

preserve any evidence related to the Codys’ claims that ManTech violated the FCA.

ManTech was served with a copy of the complaint on January 8, 2015.

      On January 12, 2015, ManTech notified the Codys that it was conducting an

internal investigation of the FCA violations alleged in their complaint. ManTech retained

an outside expert in cost accounting and regulatory compliance to review the issues

raised in the Codys’ qui tam action. Phillips, who was “[d]isappointed but not surprised”

about the lawsuit, J.A. 1490, testified that from a business perspective, ManTech “wanted

to make sure that [they] set up a [communication] plan to talk to [their] customers” and


                                           12
“let them know what ManTech had done through this period to try to make sure there

were no issues and let them know that [they] were doing everything [they] could to

ensure there was no improper action that would have been done to the government,” J.A.

1491.    And because the lawsuit was now in “the public domain,” they were also

concerned with developing “an external press and reputational plan.” J.A. 1491. With

regard to the lawsuit itself, Phillips made the decision that Muge “could not represent

ManTech as the program manager . . . to the very customer that she was saying that

ManTech had defrauded,” and that Kevin should not be “in the corporate office with . . .

the same team that had to . . . address these legal issues” raised in the lawsuit. J.A. 1492.

ManTech placed both Codys on paid administrative leave during the pendency of the

internal investigation and until further notice. Webster was made the acting Program

Manager for the MRAP Contract while Muge was on leave. No one was appointed to fill

Kevin’s position.

        Because of cutbacks in the defense budget and the withdrawal of American troops

from Afghanistan, ManTech’s revenues declined by 45%—from $2.9 billion in 2012 to

$1.55 billion in 2015. During that two-year period, ManTech discharged 35 employees at

corporate headquarters as well as others at its operating divisions. These terminations

included a total of 14 corporate officers.

        On March 8, 2015, Kevin learned that he would be terminated effective March 20,

2015. Phillips testified that Kevin was terminated, along with a number of other senior

executives, due to a sharp decline in ManTech’s revenue caused by the United States’




                                             13
drawdown of troops in Afghanistan. Following Kevin’s termination, Muge remained on

administrative leave.

      On June 17, 2015, ManTech informed Muge that she would be terminated

effective July 1, 2015. Brogan testified that ManTech terminated Muge because the

Army eliminated her MRAP contract program manager position. 3 Cook testified that she

had “never seen the government eliminate the program management position from a

contract and certainly not from a large contract. It’s a very important position.” J.A.

1024. ManTech requested reconsideration of the decision to eliminate the position, but

the Army denied the request. On June 16, 2015, ManTech received a formal contract

modification from the Army that eliminated the Program Manager position from the

MRAP Contract as of June 30, 2015.

                        Amended Complaint, Trial and Verdict

      On February 25, 2016, ManTech moved to dismiss Plaintiffs’ original complaint.

In response, the Codys filed their First Amended Complaint on March 16, 2016, in which

they abandoned the qui tam claim for violation of the FCA.          In their Amended

Complaint, the Codys continued to assert a retaliation claim under the FCA, see 31

U.S.C. § 3730(h), and added a second retaliation claim under the DCWPA, see 10 U.S.C.

§ 2409. The Amended Complaint also added factual allegations based on events since


      3
         The MRAP Contract required a Program Manager and provided the funding for
that position. When Muge was placed on paid administrative leave in January 2015, her
time could no longer be charged to the MRAP Contract and, instead, became an overhead
cost borne by ManTech.



                                          14
the filing of the original Complaint, notably ManTech’s discharge of Kevin in March

2015 and its discharge of Muge in June 2015.

       Following discovery, ManTech moved for summary judgment, which the district

court granted in part on September 14, 2016. The district court concluded that the only

protected activity in which the Codys had engaged was the filing of this suit, and it

dismissed all of the Codys’ claims for retaliation to the extent they were based on any

other whistleblowing conduct. Accordingly, “the only issue for the jury to decide with

respect to liability was whether there was sufficient causation between the filing of this

qui tam action and Plaintiffs’ respective terminations.” J.A. 550. Additionally, before

trial, “the parties stipulated to the amount of back-pay damages each Plaintiff would be

entitled to receive should they prevail on the issue of liability and also agreed that in the

event of liability, the issue of front pay was for the Court to decide.” 

“compensatory damages for emotional distress as the only damages issue for the jury to

decide.” 

liability, the jury returned a verdict in favor of both Codys, finding that

ManTech unlawfully terminated the Codys in retaliation for their filing of this qui tam

action. As to damages for emotional distress, the jury awarded $500,000 to Kevin Cody

and $300,000 to Muge Cody.

       After the Codys presented their case-in-chief, ManTech moved for judgment as a

matter of law pursuant to Fed. R. Civ. P. 50(a). ManTech renewed its motion pursuant to

Fed. R. Civ. P. 50(b) at the close of all evidence. The district court reserved ruling on

these motions until after the jury verdict. The district court then granted ManTech’s


                                             15
motion in part, vacating the jury’s damage awards for emotional distress for insufficient

evidence. The district court denied ManTech’s motion as to liability, upholding the

jury’s conclusion that ManTech retaliated against both Kevin and Muge Cody. The

district court entered awards of back pay and front pay to each of the Codys and entered

final judgment.

                                  II. ManTech’s Appeal

       We turn first to ManTech’s challenge to the district court’s denial of its motion for

judgment as a matter of law under Rule 50(b). ManTech contends that the Codys did not

present sufficient evidence to establish retaliatory discharge under either the FCA or the

DCWPA. More specifically, ManTech asserts that the Codys failed to demonstrate a

causal nexus between their protected activity—the filing of this qui tam action—and

ManTech’s termination of their employment.

                                 A. Standard of Review

       In order “[t]o challenge the sufficiency of the evidence in a civil jury trial on

appeal, a party must comply with Federal Rule of Civil Procedure 50,” which “sets out

two different stages for such a challenge.” Belk, Inc. v. Meyer Corp., U.S., 

,

154 (4th Cir. 2012). First, “Rule 50(a) allows a party to challenge the sufficiency of the

evidence before a case is submitted to the jury.” 

50(b) “sets forth the

requirements for challenging the sufficiency of the evidence after the jury verdict and

entry of judgment.” 

In either case—whether the moving party is asserting a

Rule 50(a) motion or a post-verdict Rule 50(b) motion—a motion under this rule “tests

the legal sufficiency of a claim, that is, assesses whether the claim should succeed or fail


                                            16
because the evidence developed at trial was insufficient as a matter of law to sustain the

claim.” 

see Cowart v. Erwin, 

, 450 (5th Cir. 2016)

(“When a case is tried to a jury, a [renewed] motion for judgment as a matter of law is a

challenge to the legal sufficiency of the evidence supporting the jury’s verdict.” (internal

quotation marks omitted)). 4 Our review of the denial of a Rule 50(b) motion is de novo,

and we apply the same standard used by the district court. See First Union Commercial

Corp. v. GATX Capital Corp., 

, 556 (4th Cir. 2005). That is, this court must

affirm the jury’s verdict, “[i]f, viewing the facts in the light most favorable to the non-

moving party, there is sufficient evidence for a reasonable jury to have found in the non-

moving party’s favor.” 

marks and alteration omitted).

                    B. The Elements of the Codys’ Retaliation Claims

                               1. Retaliation under the FCA

       The general purpose of the FCA is to combat fraud against the federal

government. See Mann v. Heckler & Koch Def., Inc., 

, 349 (4th Cir. 2010).

The FCA’s qui tam provisions achieve this purpose “quickly and efficiently by

encouraging relators to bring actions that the government cannot or will not.” United

States ex rel. Sanders v. N. Am. Bus Indus., Inc., 

, 295 (4th Cir. 2008); see

       4
         The relevant portion of Federal Rule of Civil Procedure 50(b) provides that “[i]f
the court does not grant a motion for judgment as a matter of law made under Rule 50(a),
the court is considered to have submitted the action to the jury subject to the court’s later
deciding the legal questions raised by the motion.” Fed. R. Civ. P. 50(b). Rule 50(b)
thus incorporates the standard for granting judgment as a matter of law set forth in Rule
50(a)—whether there is “a legally sufficient evidentiary basis” for “a reasonable jury” to
“find for the party on [an] issue.” Fed. R. Civ. P. 50(a).



                                             17
Glynn v. EDO Corp., 

, 213 (4th Cir. 2013) (“Under the FCA, private parties

can bring qui tam actions in the name of the United States to enforce the provisions of the

statute.”).    “[T]he paradigm qui tam case is one in which an insider at a private

company,” who is “privy to a fraud on the government,” brings suit against his employer

“blow[ing] the whistle on the [fraud].” United States ex rel. Fine v. Chevron, U.S.A.,

Inc., 

, 742 (9th Cir. 1995) (en banc) (internal quotation marks omitted).

       In order to protect “employees who take actions to uncover fraud,” Congress

included in the FCA an anti-retaliation provision. 

. The anti-

retaliation provision thus affords a cause of action to “[a]ny employee . . . 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 .

. . in furtherance of an action under this section.” 31 U.S.C. § 3730(h)(1). This provision

was added in view of the likelihood that “few individuals will expose fraud if they fear

their disclosures will lead to harassment, demotion, loss of employment, or any other

form of retaliation.”     

(internal quotation marks omitted).

Accordingly, through § 3730(h), Congress “create[d] a cause of action for employees

who suffer retaliation for taking measures to prevent contractor fraud against the United

States.” 

can be proven by either the submission of direct evidence of

retaliatory animus or by use of the McDonnell Douglas burden-shifting framework. 5 See


       5
           McDonnell Douglas Corp. v. Green, 

(1973).



                                            18
Foster v. Univ. of Md.-E. Shore, 

, 249 (4th Cir. 2015). Although the Fourth

Circuit has not explicitly held that the McDonnell Douglas burden-shifting framework

applies to retaliation cases under the FCA or DCWPA, we have applied it to retaliation

claims available under similar statutes, see, e.g., 

under Title VII),

and we see no reason that this framework would not apply in this context as well.

Moreover, other circuits and district courts in this circuit have routinely applied the

framework to FCA retaliation claims. See, e.g., Diaz v. Kaplan Higher Educ., L.L.C.,

, 175 n.3 (5th Cir. 2016) (“We . . . apply the McDonnell Douglas framework

to the False Claims Act’s anti-retaliation provision.”); Harrington v. Aggregate Indus.—

N.E. Region, Inc., 

, 31 (1st Cir. 2012) (“We hold . . . that the FCA’s anti-

retaliation provision is amenable to the use of the McDonnell Douglas framework.”);

United States ex rel. Schweizer v. Océ N.V., 

, 1241 (D.C. Cir. 2012)

(concluding that “the McDonnell Douglas framework applies to § 3730(h) retaliation

claims”).

       In order to establish a prima facie case of retaliation under § 3730(h), the plaintiff

must prove the following: (1) that “he engaged in ‘protected activity’ by acting in

furtherance of a qui tam suit;” (2) that “his employer knew of these acts;” and (3) that a

causal link exists—that “his employer took adverse action against him as a result of these

acts.” 

(emphasis added). As noted, the final element of an FCA

retaliation claim encompasses a causation requirement pursuant to which the plaintiff

must establish a causal nexus between the alleged protected activity and the alleged

adverse employment action. ManTech contends that this element requires a plaintiff to


                                             19
satisfy a “but-for” causation standard. See, e.g., United States v. Solvay Pharm., Inc., 

, 333 (5th Cir. 2017) (per curiam) (explaining plaintiffs asserting claims under

the anti-retaliation provision of the FCA “must point to evidence creating a genuine issue

of material fact that their complaints were the but-for cause of their terminations”).

Although the district court, in ruling on ManTech’s Rule 50(b) motion, stated that it

“appears to be an open question” whether “the causation standard for FCA retaliation

claims is a ‘but-for’ standard” or “a ‘contributing factor’ standard,” J.A. 552 n.1, the

Codys do not in fact challenge on appeal ManTech’s position that a retaliation claim

under the FCA requires “but for” causation. 6

       The FCA anti-retaliation provision affords relief to an employee who “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 . . . in furtherance of an action under this section.” 31 U.S.C. §

3730(h)(1) (emphasis added). This court has not squarely addressed whether the FCA’s

“because of” requirement imports a “but-for” causation standard.          We are guided,

however, by two Supreme Court decisions considering the use of this same language in

similar statutes. The first is Gross v. FBL Financial Services, Inc., which held that

       6
         The district court cited Pencheng Si v. Laogai Research Foundation, 

73, 101 (D.D.C. 2014), as an example of courts concluding that an FCA retaliation
claim requires only “contributing factor” causation. See also United States ex rel.
Schweizer v. Océ N.V., 

, 1238 (D.C. Cir. 2012) (asking, for purposes of an
FCA retaliation claim, whether “the employer’s adverse action against the employee
[was] motivated, at least in part, by the employee’s engaging in [that] protected activity”)
(internal quotation marks omitted).



                                            20
Congress’s use of the phrase “because of” in the anti-retaliation provision of the Age

Discrimination in Employment Act (ADEA) requires a “‘but-for’ cause of the employer’s

adverse decision.”    

, 176 (2009).       The second is University of Texas

Southwest Medical Center v. Nassar, in which the Court considered the causation

component of Title VII’s anti-retaliation provision. See 

, 352 (2013). The

Court explained that, “[g]iven the lack of any meaningful textual difference between the

text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that

Title VII retaliation claims require proof that the desire to retaliate was the but-for cause

of the challenged employment action.”        

no appreciable difference

between the “because of” language used in the anti-retaliation provision before us today

and that considered in Gross and Nassar. We are convinced therefore that a retaliation

claim under the FCA requires proof of “but for” causation. This court has previously

applied Gross and Nassar in the same way, holding that the Americans with Disabilities

Act’s “on the basis of” language “calls for a ‘but-for’ causation standard” as there is “no

‘meaningful textual difference’ between this language and the terms ‘because of,’ ‘by

reason of,’ or ‘based on’—terms that the Supreme Court has explained connote ‘but-for’

causation.” Gentry v. E. W. Partners Club Mgmt. Co., 

, 235-36 (4th Cir.

2016) (quoting 

). And, our conclusion is consistent with the

majority position of the circuit courts of appeal which construes FCA’s “because of”

language to require “but for” causation. See, e.g., DiFiore v. CSL Behring, LLC, 

, 78 (3d Cir. 2018); Solvay 

; United States ex rel.

Marshall v. Woodward, Inc., 

, 564 (7th Cir. 2015).


                                             21
       Assuming the plaintiff establishes a prima facie case of retaliation under the FCA,

a presumption of retaliation arises, and the burden then shifts to the employer to show

that it had a legitimate non-retaliatory basis for its actions. See 

.

If the employer makes this showing, the presumption vanishes and the burden shifts back

to the plaintiff to rebut the employer’s evidence by demonstrating that the employer's

purported nonretaliatory reasons “were not its true reasons, but were a pretext for

discrimination.” 

marks omitted). Stated differently, the plaintiff

must show the articulated reason is false and “that retaliation was the real reason for the

challenged conduct.” 

(alteration omitted). At bottom, a plaintiff’s ultimate

burden as to causation is the same under either means of proof: she must show that the

“unlawful retaliation would not have occurred in the absence of the alleged wrongful

action or actions of the employer.” 

(internal quotation marks omitted). In a

direct-evidence case, the plaintiff meets her ultimate burden as part of the prima facie

case of providing “but-for” evidence of causation, by showing that she would not have

been subjected to the adverse employment action “but for her employer’s retaliatory

animus.” 

(internal quotation marks omitted). In a burden-shifting case, she

meets her ultimate burden at the third stage of the analysis by showing pretext. See 

252. In other words, “[a] plaintiff who can show that retaliation was the real reason

for the adverse employment action will necessarily be able to show that the harm would

not have occurred in the absence of—that is, but for—the defendant’s conduct.” 

(alteration, citation, and internal quotation marks omitted).

                             2. Retaliation under the DCWPA


                                             22
       The DCWPA prohibits retaliation against employees of defense contractors who

report certain types of misconduct. See 10 U.S.C. § 2409(a)(1). Under this statute, “[a]n

employee of a contractor [or] subcontractor . . . may not be discharged, demoted, or

otherwise discriminated against as a reprisal for disclosing . . . information that the

employee reasonably believes is evidence of . . . [g]ross mismanagement,” “gross waste

of Department funds,” “abuse of authority,” or “a violation of law, rule, or regulation

related to” a Department of Defense contract or grant. 

the DCWPA

covers disclosures to “[a] Member of Congress,” “[a]n Inspector General,” and “[a]

management official or other employee of the contractor . . . who has a responsibility to

investigate, discover, or address misconduct,” among others. 10 U.S.C. § 2409(a)(2).

       The DCWPA incorporates “[t]he legal burdens of proof specified in section

1221(e) of title 5” and makes them “controlling for the purposes of any . . . judicial or

administrative proceeding to determine whether discrimination prohibited under this

section has occurred.” 10 U.S.C. § 2409(c)(6). The difference between a retaliation

action pursuant to this provision and one under the FCA is that, under this framework, a

plaintiff must only establish that retaliation for a protected disclosure “was a contributing

factor” to any adverse personnel action taken against the plaintiff. 5 U.S.C. § 1221(e)(1).

“A contributing factor is any factor, which alone or in combination with other factors,

tends to affect in any way the outcome of the decision.” Feldman v. Law Enf’t Assocs.

Corp., 

, 348 (4th Cir. 2014) (internal quotation marks omitted).

           3. Effect of Jury Instructions on Causation Standard for Challenge
            to Denial of Rule 50(b) Motion for Judgment as a Matter of Law



                                             23
       As we noted previously, the Codys do not dispute that a retaliation claim under the

FCA, in fact, requires but-for causation.         Rather, the Codys argue that ManTech

“waived” the right to insist upon this standard when challenging the denial of its Rule 50

motion.

       At trial, the district court instructed the jury on causation using the more forgiving

“contributing factor” standard for both claims—as agreed upon by the parties. 7 In its

post-trial Rule 50(b) motion for judgment as a matter of law, however, ManTech argued

that the Codys failed to establish their retaliation claims under the FCA because they did

not submit evidence from which a reasonable jury could find by a preponderance of

evidence that the filing of this action “was the ‘but-for’ cause of their terminations, and

not simply a motivating factor.” J.A. 206. According to ManTech, it agreed that, to

avoid jury confusion, only the more lenient “contributing factor” causation standard

should be charged as to both the FCA and DCWPA retaliation claims. In its post-verdict

motion for judgment as a matter of law, however, ManTech contended that the “but for”

standard still applied for purposes of assessing the sufficiency of the evidence for the

FCA retaliation claim. J.A. 206.

       The district court rejected ManTech’s argument that the sufficiency of the

evidence to support the FCA retaliation claim should be assessed under a “but for”

       7
         The district court charged that “the plaintiff must prove by a preponderance of
the evidence that his or her protected activity was a contributing factor in the defendant’s
decision to discharge him or her,” and explained that “[a] contributing factor is any factor
which alone or in combination with other factors tends to affect in any way the outcome
of the decision.” J.A. 1534-35.



                                             24
causation standard, concluding that ManTech had agreed to the “contributing factor”

instruction and had therefore “waived any objection to the jury instructions on

causation.” J.A. 552 n.1. The Codys largely adopt this position on appeal, contending

that “under the ‘invited error’ doctrine, ManTech waived the right to have the jury find

whether retaliation was the ‘but for’ cause of the Codys termination.”              Brief of

Appellee/Cross-Appellant at 49.

       In response, ManTech explains that it is not challenging the jury instructions on

appeal, and that in its Rule 50 motions, it noted that “differing standards of proof apply in

assessing the sufficiency of the evidence to support retaliation claims under the FCA and

the DCWPA.” Reply Brief of Appellant/Brief of Cross Appellee at 5. ManTech claims

that the district court decided to reserve ruling on the Rule 50 motions until after the

verdict, and that ManTech then agreed at that point that the “more lenient” contributing-

factor standard should be used to instruct the jury on both claims to avoid confusion. 

ManTech, by agreeing to simplify the jury instructions on causation, it did

not waive its Rule 50 argument that the evidence of causation was insufficient to

establish the Codys’ retaliation claims under either the FCA or the DCWPA.

       Despite the surface appeal of the Codys’ position, we agree with ManTech that

when a party challenges a district court’s ruling on a motion for judgment as a matter of

law, the jury instructions given do not control our analysis. Our focus in this instance is

on whether the district court properly ruled on ManTech’s Rule 50(b) motion—whether

or not a party objects or consents to a given instruction has no bearing on this inquiry. As

the Supreme Court has explained, “the failure to object to an instruction does not render


                                             25
the instruction the law of the case for purposes of appellate review of the denial of a

directed verdict or judgment notwithstanding the verdict.”           City of St. Louis v.

Praprotnik, 

, 120 (1988) (internal quotation marks omitted). “If a party

moves under Rule 50 for judgment as a matter of law both before and after the verdict,”

as ManTech did here, “the motions are sufficient to preserve the issue for appeal,”

regardless of the jury instructions. Fisher v. City of San Jose, 

, 958 n.4 (9th

Cir. 2007) (internal quotation marks and ellipses omitted), vacated on other grounds, 

(9th Cir. 2009) (en banc). Put differently, “when reviewing a motion for

judgment as a matter of law, we apply the law as it should be, rather than the law as it

was read to the jury.” Pincay v. Andrews, 

, 1109 n.4 (9th Cir. 2001).

Accordingly, we turn to consider the legal sufficiency of the Codys’ retaliation claims. In

doing so, we apply a but-for causation standard to their FCA retaliation claims, but a

contributing-factor causation standard to their DCWPA retaliation claims.

                          C. Sufficiency of the Codys’ Evidence

                                   1. Kevin Cody

       ManTech contends that the Codys can point to no evidence establishing causation

other than the temporal proximity between ManTech’s learning of the qui tam action and

the terminations of Kevin and Muge Cody. And, ManTech argues, even the evidence of

temporal proximity here is insufficient to give rise to a reasonable inference of retaliation

because the time gap is too great between ManTech’s notice of the Codys’ lawsuit and

their subsequent terminations. Generally, the temporal nexus between two events does

not alone give rise to an inference of causation. For that to happen, the “temporal


                                             26
proximity between an employer’s knowledge of protected activity and an adverse

employment action” must be “very close.” Clark Cnty. Sch. Dist. v. Breeden, 

, 273 (2001) (per curiam) (internal quotation marks omitted). In this case, the time

gap for Kevin was approximately ten weeks; for Muge, six months.

       The Codys, however, do not rely solely on temporal proximity to establish

causation, and the district court concluded that the Codys offered enough other evidence

to establish causation. In particular, the district court found that evidence relating to the

Codys’ administrative leave, as well as the acrimonious pre-suit history between the

Codys and ManTech with regard to the MRAP bidding process, was probative of

ManTech’s “retaliatory motivation.” J.A. 553. We agree.

       It is undisputed that ManTech placed the Codys on administrative leave

immediately after learning of the qui tam action. Evidence in the record established that,

as a practical matter, being placed on administrative leave at ManTech imposed

“consequences within ManTech’s organizational structure, including [the Codys’] ability

to transfer to other positions.” J.A. 553. Moreover, the record supports a reasonable

inference that placing the Codys on administrative leave relieved ManTech of having to

comply with its company policy of attempting to find alternative positions for employees

facing layoffs.

       ManTech argues that no retaliatory animus can be inferred from placing an

employee on paid administrative leave because it is well-established that doing so does

not constitute an adverse employment action.        See, e.g., Jones v. Southeastern Pa.

Transp. Auth., 

, 326 (3d Cir. 2015). As noted by the district court, however,


                                             27
“the issue is not whether that administrative leave constitutes an adverse employment

practice, but whether it can be probative of ManTech’s retaliatory intent in this context.”

J.A. 553.

       As far as the evidence of the acrimonious relationship between the Codys and

ManTech that existed before ManTech received notice of the lawsuit, the district court

rejected ManTech’s position that none of it could be used to establish causation because

this evidence concerned events that occurred prior to the Codys’ protected activity.

Relying on Francis v. Booz, Allen & Hamilton, Inc., 

(4th Cir. 2006),

ManTech argues on appeal that retaliatory animus can never be based on evidence of

events that occurred before the protected activities at issue. Francis establishes no per se

rule, however, that history of a prior antagonistic relationship is irrelevant. In Francis,

we simply concluded, under the facts of that case, that no retaliatory inference could be

drawn solely from the temporal proximity of the protected activity and discharge more

than two months later where “[t]he actions that led to [plaintiff’s] probation and

termination began before her protected activity.” 

Likewise, in Feldman, also

relied upon by ManTech, this court noted no per se rule against consideration of prior

acrimony between the plaintiff and his employer. Feldman suggests that when animus

already exists between the plaintiff and his employer prior to the protected activity at

issue, the plaintiff needs to be able to show that his protected conduct “changed” the

“status quo” in some 

.

       The evidence unquestionably established that prior to the lawsuit, ManTech

harbored animus towards the Codys for their questioning of the reliability and accuracy


                                            28
of ManTech’s bid submitted to the government. The Codys presented evidence that

during the MRAP bidding process, ManTech downplayed the expected labor costs to

perform the contract. Kevin was concerned about deflated estimated labor costs being

included in ManTech’s MRAP bid proposal, and he expressed this concern to ManTech

management frequently in late 2012 and early 2013.          After winning the contract,

ManTech in fact experienced cost overruns as it performed the MRAP contract, and

Kevin expressed concerns about this as well. Leadership within ManTech’s Technical

Services Group characterized the Codys’ complaints as “disloyal,” J.A. 806, and

concluded that the Codys had no right to complain about “the government getting

screwed,” J.A. 364, in light of the substantial compensation both Kevin and Muge were

earning from the performance of a government contract.

      Based on all of the evidence taken as a whole, the district court concluded it was

      reasonable for the jury to infer that this lawsuit, as the culmination of the
      dispute between the Codys and ManTech, was the last straw for ManTech
      and that ManTech placed the Codys on administrative leave without any
      intention to ever allow them to return to work, an intention further reflected
      in ManTech’s decision not to afford either an opportunity to be considered
      for other positions in ManTech despite . . . [ManTech’s] emphasis on
      attempting to find other positions for employees who may otherwise be
      terminated.

J.A. 554. We agree with the district court that the evidence was sufficient to establish a

prima facie case of retaliation for both Kevin and Muge under both the FCA and the

DCWPA.

      With respect to Kevin, ManTech introduced evidence to show that his termination

was caused by sharply declining revenues at ManTech resulting from the drawdown of



                                           29
American troops in Afghanistan and cutbacks in defense spending. ManTech took steps

to reduce overhead in 2014 and 2015, including terminating 35 employees assigned to

corporate headquarters, where Kevin was also assigned. In September 2014, ManTech

determined that unless it brought in substantial new business, Kevin, an indirect

employee not assigned to a specific contract, would have to be terminated. On March 20,

2015, Kevin was terminated. ManTech laid off two other senior corporate officers in

addition to Kevin. This explanation provided by ManTech officials at trial is sufficient to

establish a cogent, non-retaliatory basis for the adverse employment action it took against

Kevin. However, as the district court observed, “ManTech offered no corroboration for

their testimony, such as internal documents reflecting that such a decision had, in fact,

been made,” J.A. 555, and the jury was not obliged to accept this explanation. They

could have, but they did not. We agree that, in view of the record as a whole, the

evidence was sufficient to permit a reasonable jury to accept a contrary view and

conclude that Kevin would not have been terminated absent the lawsuit under both the

FCA’s but-for standard as well as the more lenient contributing-factor standard imposed

by the DCWPA.

                                      2. Muge Cody

       With respect to Muge, however, the evidence leads to a different conclusion. We

must evaluate each plaintiff’s retaliation claim on its own distinct facts even when the

facts of multiple plaintiffs’ claims are similar. See, e.g., Bland v. Roberts, 

,

384–89 (4th Cir. 2013) (concerning actions taken in retaliation for exercise of First

Amendment rights). The evidence is uncontradicted that the Army, and not ManTech,


                                            30
made the unilateral decision to eliminate Muge’s position on the MRAP account. On

April 21, 2015, while Muge was still on administrative leave pending ManTech’s internal

investigation of the FCA violations alleged in the complaint, the Army notified ManTech

that it was modifying the MRAP contract to eliminate the PM position. In late April,

ManTech sent a letter requesting reconsideration of this decision, but the request was

denied. On June 16, 2015, ManTech received a formal contract modification notice

indicating that the MRAP Program Manager position would no longer exist as of June 30,

2015.    The following day, ManTech notified Muge that her employment would be

terminated on July 1, 2015.

        In our view, Muge is situated much differently than Kevin. Assuming Muge

established a prima facie retaliation case under the DCWPA, ManTech nonetheless

established through the foregoing evidence that it would have taken the same personnel

action in the absence of the protected activity, as required by the DCWPA. See 5 U.S.C.

§ 1221(e)(2). The temporal gap between Muge’s protected activity and her termination

was six months – much longer than Kevin’s gap. When ManTech finally terminated

Muge, it was only after the Army had unilaterally decided to eliminate her position and

after ManTech had sought unsuccessfully to have the Army reverse its decision to

eliminate her position. And, ManTech’s decision to terminate Muge—as well as acting

PM Nate Webster—immediately after receiving the formal contract modification notice

from the Army suggests strongly that the decision to terminate Muge and Webster was

based solely on the Army’s elimination of the PM position. Thus, while ManTech opted

not to replace Kevin at corporate headquarters after terminating him, ManTech played no


                                          31
role in the elimination of Muge’s job and even expressed disagreement with the decision.

There is no evidence whatsoever to question the Army’s motivation or to connect it in

any way with the controversy between the Codys and ManTech, nor is there any evidence

that Muge would have been retained by ManTech even after the Army had eliminated her

job, particularly given the economic straits in which ManTech found itself at the time.

       Additionally, the motive to retaliate was greater with respect to Kevin than Muge.

Although Muge apparently shared Kevin’s views that the company was retaliating

against them for Kevin’s grievances regarding the MRAP bid, Kevin was unquestionably

the primary complainant stirring the pot about the accuracy and honesty of ManTech’s

bid.

       As for Muge’s retaliation claim under the FCA, we conclude based on the

foregoing recitation of the evidence, even viewed in a light most favorable to Muge, that

no reasonable finder of fact could conclude that “the harm would not have occurred in the

absence of—that is, but for—the defendant’s conduct.” 

(internal

quotation marks omitted). Likewise, we conclude that even under DCWPA’s more

lenient “contributing factor” standard, the evidence is insufficient as a matter of law to

permit Muge to establish a retaliation claim. Accordingly, we reverse the district court’s

denial of ManTech’s Rule 50(b) motion with respect to Muge’s retaliation claims under

both the DCWPA and the FCA and vacate the jury’s verdict as to both claims.

                             III. Kevin Cody’s Cross Appeal

       We turn now to the cross appeal challenging the district court’s order vacating the

jury verdict to the extent it awarded damages for emotional distress to Kevin Cody in the


                                            32
amount of $500,000. 8 Kevin challenges both the district court’s conclusion that the

evidence was insufficient as a matter of law to support any damages for emotional

distress and the court’s failure to order a new trial nisi remittitur in the alternative. We

reject both of these challenges and affirm the district court’s ruling.

       Because Kevin’s cross appeal concerns the district court’s granting of ManTech’s

Rule 50(b) motion with respect to the emotional distress damages, we apply a de novo

standard of review, see GATX 

, rather than, as Kevin suggests,

the abuse of discretion standard applicable to a motion for a new trial nisi remittitur

under Rule 59(a) of the Federal Rules of Civil Procedure, see Sloane v. Equifax Info.

Servs., LLC, 

, 502 (4th Cir. 2007). The district court determined that the

Codys “failed to present evidence of demonstrable, genuine, and adequately explained

emotional distress,” and that “the jury’s verdict [was] based on nothing more than an

inference that emotional distress accompanied Plaintiffs’ termination.” J.A. 561 (internal

quotation marks omitted). Kevin contends this conclusion was erroneous, but he fails to

point to any specific evidence in the record of emotional distress that resulted from his

termination. Kevin highlights his own testimony that it was upsetting when, in the

months following his termination, he had to drive past ManTech signs to his new place of

employment—the signs served as a reminder that he still “should [have been] at one of

those ManTech offices . . . running a successful business” rather than “hav[ing] been

       8
          In view of our decision to vacate the verdict in favor of Muge Cody as to
liability, her challenge to the district court’s ruling vacating the award of emotional
distress damages is now moot and we need not address it.



                                              33
pushed aside.” J.A. 1203. Muge testified that she and Kevin were long-time employees

who desired to work their entire career and retire at ManTech, implying that this long-

term relationship made termination all the more upsetting.

       We agree with the district court that this evidence was wholly insufficient to

support an award of damages for emotional distress.           “An award of compensatory

emotional distress damages requires evidence establishing that the plaintiff suffered

demonstrable emotional distress, which must be sufficiently articulated; neither

conclusory statements that the plaintiff suffered emotional distress nor the mere fact that

a violation occurred supports an award of compensatory damages.” Doe v. Chao, 

, 180 (4th Cir. 2002) (emphasis added) (internal quotation marks and alterations

omitted), aff’d, 

(2004). Kevin did not offer testimony or other evidence

specifically detailing how he suffered emotional distress because of his termination—he

and Muge testified in conclusory fashion, indicating generally that he was upset and felt

embarrassed or disrespected. Such general terms, without more, are insufficient to create

an “issue of material fact for the jury regarding the presence of compensable emotional

distress.”   

own conclusory allegations that he felt ‘embarrassed,’

‘degraded,’ or ‘devastated,’ . . . will not suffice to create a disputed issue of material fact

for the jury regarding the presence of compensable emotional distress.”). Moreover, the

record is devoid of any evidence that Kevin manifested physical symptoms of his

purported emotional distress or that he sought medical or psychiatric aid for emotional

distress. See Knussman v. Maryland, 

, 640 (4th Cir. 2001) (identifying

factors relevant to proof of emotional distress damages in the Rule 59 context, including


                                              34
“medical attention resulting from the emotional duress,” “psychiatric or psychological

treatment,” and “physical injuries suffered as a result of emotional distress”).

       In sum, there is simply not a sufficient evidentiary basis for any award of

compensatory damages for emotional distress. The jury’s award, therefore, appears to

have rested upon the mere fact that a violation of the anti-retaliation provisions of the

FCA and DCWPA occurred and the Codys’ conclusory testimony that they were upset

about being terminated, as would commonly be the case for anyone who was laid off

from a well-paying job. Much more is required. See 

.

       Finally, we reject Kevin’s contention that the district court made a legal error by

not considering a remittitur of the emotional distress damages award as an alternative to

vacating the entire award. The district court explained that because it found “that the

evidence [was] insufficient as a matter of law to support an award of damages for

emotional distress,” it would “not reach the issue whether the awards [were] excessive

and should be remitted.”      J.A. 561.    Kevin—in his brief, at least—appears not to

apprehend that the district court did not find his emotional distress damages excessive but

found that he was not entitled to any such damages at all. The district court explained

plainly that it was not reaching the excessiveness/Rule 59 issue. But Kevin nonetheless

relies on a line of “excessiveness” decisions under Rule 59(a), arguing that when a court

“concludes that a verdict is excessive, it is the court’s duty to require a remittitur or order

a new trial.” Cline v. Wal-Mart Stores, Inc., 

, 305 (4th Cir. 1998) (internal

quotation marks omitted). Kevin argues that the district court failed to discharge this

“duty” and therefore committed reversible error.


                                              35
       ManTech contends that Kevin’s argument improperly conflates Rule 59(a)

motions and Rule 50(b) motions. This may be true, but the most blatant flaw in Kevin’s

argument is that it rests on the false assumption that the district court actually determined

that the emotional damages award was excessive. Again, it could not be any clearer that

the district court did not address ManTech’s alternative excessiveness argument because

ManTech had prevailed on its primary argument. Regardless of the reason, Kevin has

neither shown us evidence in the record giving him a basis for recovering emotional

distress damages, nor pointed to anything else in the district court’s order that would

constitute an error as it related to the award of compensatory damages for emotional

distress. We affirm on this issue.

                                            IV.

       To sum up, on ManTech’s Appeal, we (1) AFFIRM the denial of ManTech’s Rule

50(b) motion as it relates to its liability on KEVIN CODY’S retaliation claims under the

FCA and the DCWPA; we (2) REVERSE the denial of ManTech’s Rule 50(b) motion as

it relates to its liability on MUGE CODY’S retaliation claims under the FCA and the

DCWPA; and we (3) VACATE the verdicts in favor of MUGE CODY on her retaliation

claims under the FCA and the DCWPA, and vacate as well any award of damages to

MUGE CODY.

       On the Cross Appeal, we (1) AFFIRM the district court’s decision vacating the

jury verdict awarding KEVIN CODY $500,000 in emotional distress damages, and we

(2) conclude that, in light of our disposition of MUGE CODY’S retaliation claims, her

cross appeal is MOOT and is hereby dismissed.


                                             36
 AFFIRMED IN PART, VACATED IN PART,
  DISMISSED IN PART, AND REMANDED




37
DIAZ, Circuit Judge, dissenting in part *:

       Kevin and Muge Cody worked on the same contract, voiced the same concerns,

and engaged in the same protected activity. The Codys were placed on administrative

leave the same day and suffered the same adverse employment action. And after a trial

on the sole issue of causation, the jury found they were fired for the same retaliatory

reason. The majority disagrees with this finding and says two differences between the

plaintiffs require us to vacate the verdicts with respect to Muge. First, the majority

contends that unlike Kevin, Muge was fired because of an external decision by the Army

meaning “ManTech played no role in the elimination of Muge’s job.” Maj. Op. at 31–32.

Second, the majority takes the view that ManTech’s “motive to retaliate was greater with

respect to Kevin than Muge” because he was the main antagonist. Maj. Op. at 32.

       It may have been reasonable for the jury to find that Muge was fired for

legitimate, nonretaliatory reasons. But it’s something else entirely to conclude—as we

must to overturn the verdict—that this was the only result a reasonable jury could have

reached. See Myrick v. Prime Ins. Syndicate, Inc., 

, 489 (4th Cir. 2005).

Ultimately, the distinctions the majority points to are not strong enough to overcome the

deference owed to jury verdicts, nor do they support the divergent outcomes for Kevin

and Muge Cody we now reach on appeal.



       *
         I agree with the majority’s decision to affirm the district court’s denial of
ManTech’s Rule 50(b) motion with respect to Kevin Cody and to affirm the order
vacating the Codys’ emotional distress damages.



                                             38
      The problem with relying on the Army’s decision as the reason for Muge’s

termination is that it implicitly assumes she would otherwise have returned to her role on

the MRAP contract. But as the district court explained, the jury was free to consider

whether “ManTech placed the Codys on administrative leave without any intention to

ever allow them to return to work.” J.A. 554. To this end, then-CFO Kevin Phillips

testified that when he heard about the Codys’ lawsuit he was concerned only from a

“business perspective” and developed “an external press and reputational plan” to assure

customers “there was no improper action” on ManTech’s part. J.A. 1490–91. As part of

that plan, Phillips “made the decision that Muge could not represent ManTech as the

program manager on the program to the very customer she was saying that ManTech had

defrauded.” J.A. 1492. Taking Phillips at his word, he had no intention of letting Muge

return to the MRAP contract, regardless of what the outside investigation found.

      No other witness undermines this conclusion or suggests Muge was only on leave

pending the outcome of the investigation.       Chief Compliance Officer Terry Myers

testified that she had no “understanding as to how long ManTech intended to maintain the

Codys on administrative leave.” J.A. 677. The same is true of Mike Brogan, Muge’s

direct supervisor, who was told of the decision and directed to read a script prepared by

ManTech’s “counsel and human resources . . . placing her on administrative leave.” J.A.

1444. Brogan also informed the Army that “Nate Webster was being assigned as the

acting program manager” and shared with them his “thought of the lawsuit in general,”

but Brogan never discussed Muge’s future on the project. J.A. 1444–45.




                                           39
       By the time the Army eliminated the project manager position, Muge had been off

the contract for six months, replaced by her former deputy, and represented a direct

overhead cost borne by ManTech, not the client. ManTech may have fired Nate Webster

as a result of the Army’s decision, but he was the acting project manager. Muge was not.

In short, ManTech never explained at trial how this event “changed the bitter status quo

in any way.” Feldman v. Law Enf’t Assocs. Corp., 

, 349 (4th Cir. 2014).

Nor is it clear to me that the investigation was still ongoing when the Army first

announced its decision in April 2015.         When asked, Bonnie Cook, the head of

compliance for the MRAP contract, could not even tell the jury “approximately when [the

auditor] concluded his investigation.” J.A. 1057. That ManTech had a “legitimate and

sufficient reason for its decision” is also irrelevant “if that reason did not motivate it at

the time of the decision.” Price Waterhouse v. Hopkins, 

, 252 (1989)

(plurality). And nothing compelled the jury to accept ManTech’s stated reason for firing

Muge in light of Kevin Phillips’ statement, the fact that neither of the Codys ever

returned from administrative leave, and the history of animosity between the parties.

       There is also no basis for us to conclude that Kevin Cody faced greater retaliatory

animus than Muge. The majority sees Kevin as “the primary complainant stirring the pot

about the accuracy and honesty of ManTech’s bid” while Muge simply “shared Kevin’s

views that the company was retaliating against them.” Maj. Op. at 32. But the trial

testimony and written statements of numerous Mantech executives (including Lou

Addeo, Dan Keefe, Terry Myers, Bonnie Cook, and Kevin Phillips) show that ManTech

drew no such distinction.


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       It’s true that Kevin Cody raised the initial pricing concerns in 2011, but both he

and Muge looked into cost overruns in December 2012 and made the same complaints

about possible fraud and retaliation going forward.           When discussing the Codys,

ManTech executives viewed Kevin and Muge as one and the same. For example, Kevin

Phillips testified that after learning the Army was looking into possible fraud on the

MRAP contract his “assumption was [] one of the Codys had made a complaint.” J.A.

1488. Likewise, Lou Addeo told Terry Myers “[b]oth of them don’t like to be managed.

They think they are an entity inside the company. . . . It’s an offense that we let them go

this far.” J.A. 1828. And Myers conducted one internal investigation into the “Cody

Allegations,” speaking with the same employees about the pair, and placing her findings

into a single report even when the topics concerned only one of the Codys. J.A. 1805.

       Deciding questions of motive, and how ManTech felt about Kevin and Muge, is

also “a function peculiarly within the province of the fact finder, because so much

depends on the opportunity to appraise the antagonists as they testify.”         Whalen v.

Roanoke Cty. Bd. of Supervisors, 

, 225–26 (4th Cir. 1985). But the majority

usurps this role by suggesting ManTech had a greater desire to retaliate against Kevin.

The jury evidently didn’t think so, and its “finding of motive should not be set aside . . .

unless the evidence clearly compels rejection.” 

                                         ∗   ∗    ∗

       The majority holds that a jury could find Kevin Cody was fired because of his qui

tam lawsuit, but that no reasonable jury could say the same about Muge Cody. This is an

awkward result. It’s also one that the majority reaches by emphasizing individual people


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and events rather than considering the record as a whole. Viewed within the broader

context of this dispute, the supposed differences between Kevin and Muge relied upon by

the majority are at best, debatable propositions, and at worst, unfounded conclusions.

The jury reasonably found in favor of both plaintiffs.    Because the majority holds

otherwise as to Muge, I respectfully dissent.




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