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.
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.
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:
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%.
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:
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
The next day, September 3, 2009, Dr. Li wrote to Mr. Benham as follows:
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:
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:
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
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.
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 of his employment for "lack of full compliance with all the issues stipulated in the initial letter of November
Id. at 2. After reiterating the four concerns identified by Dr. Johnson in the February 18, 2010 letter, which "remain the reason for your possible dismissal from your position," Dr. Hostler wrote:
Id. at 3. It should be noted that, in a declaration, Dr. Huang disclaims ever using or misappropriating any unpublished data that belonged to Dr. Li on any grant application. On May 16, 2010, Dr. Huang wrote a response to Dr. Hostler's suspension letter in which he again raised the issue of Dr. Li's alleged misappropriation of grant funds.
Evidently, Dr. Hostler met with Dr. Huang on June 7, 2010 to discuss conditions that had been negotiated internally that would allow Dr. Huang to continue his research and bring his grant project to a close before his appointment expired. These conditions, which Dr. Hostler committed to writing in a June 10, 2010 letter to Dr. Huang, included, among other things:
Dr. Hostler gave Dr. Huang until June 14, 2010 to provide written acceptance of these terms.
Before responding to Dr. Hostler, Dr. Huang inquired about the status of his FSGC grievance. In response, Robert Rood ("Mr. Rood"), Chairman of the FSGC, told Dr. Huang on June 11, 2010, that "[t]he conditions offered in [Dr. Hostler's letter] are far more generous to you than we anticipated...." Huang Dep., Ex. 15. Mr. Rood continued, stating: "The FSGC can do nothing to extend your contract beyond the dates in that letter. You seem to think that your initial appointment as Research Assistant Professor had some implications for longterm employment with UVa. It does not." Id. Mr. Rood concluded by suggesting that Dr. Huang begin seeking employment elsewhere and noting that, if Dr. Huang did not accept the conditions,
On June 13, 2010, Dr. Huang filed a complaint with UVa Health System's Corporate Compliance & Privacy Office regarding Dr. Li's alleged misappropriation of grant funds and subsequent retaliation.
On June 14, 2010, Dr. Huang responded to Dr. Hostler per her request. As a result of his letter, Dr. Hostler amended the aforementioned conditions in a letter to Dr. Huang dated June 16, 2010. In her new letter, Dr. Hostler agreed to change Dr. Huang's assigned laboratory to one he requested. Additionally, Dr. Hostler represented that the Department would, for the pay periods from June 2009 through November 2009, remove all of Ms. Gautier's level of effort charges and charge Dr. Li 5% level of effort as budgeted. All other conditions of Dr. Hostler's June 10, 2010 letter were to remain the same, and she asked Dr. Huang to return a signed copy of the letter if he would agree to abide by them.
On June 17, 2010, Dr. Huang wrote to Dr. Hostler to inform her that, inter alia, he was rejecting the offered terms. Accordingly, the following day, Dr. Hostler wrote a letter to Dr. Huang, informing him that the School of Medicine was recommending to the Provost of UVa that Dr. Huang's employment be terminated. In her letter to the Provost, dated June 18, 2010, Dr. Hostler lists the charge against Dr. Huang as "unacceptable performance after due notice." Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 23, at 3. Upon the Provost's request, the Faculty Senate organized a Faculty Senate Peer Review Panel ("FSPRP") to review the proposed termination of Dr. Huang.
On August 25, 2010, the FSPRP issued an eleven-page report. In the report, the FSPRP addressed Dr. Huang's failure to comply with the conditions set forth in the letter of non-renewal:
Id. at 8 (emphasis added). The report concluded as follows:
Id. at 10 (emphasis added). Finally, the report ended with an unsolicited recommendation that the School of Medicine make every effort to enable Dr. Huang to complete his grant.
Upon reviewing the FSPRP report, the FSGC submitted its final report to the President of UVa on September 3, 2010. The FSGC report discussed the allocation of levels of effort for the ANKK1 grant:
Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 21. The report continued, observing that, "according to University policy, PIs are responsible for ensuring that funds on research grants are properly allocated for their intended purpose. The fact that, in these instances, funds were apparently allocated without the knowledge or approval of the PI represents a serious breach of University policy." Id. With regard to Dr. Huang, the FSGC stated: "We feel that he has been poorly treated, in particular, he
Id. Ultimately, the Provost permitted Dr. Huang to remain on administrative leave through November 2010 when his original, non-renewed term of employment was set to expire.
However, Dr. Huang sought a more definitive resolution of his complaints. On September 21, 2010, Dr. Huang emailed the Provost. After hearing nothing from the Provost, Dr. Huang wrote to the President, the Executive Vice President and Chief Operating Officer, and the Provost on October 4, 2010, asking for a final decision with respect to his grievance. Again, Dr. Huang heard nothing. On October 31, 2010, he filed a grievance appeal with UVa's Board of Visitors.
On November 17, 2010, Dr. Johnson made a last-ditch offer to extend Dr. Huang's employment contract by one year. Moreover, Dr. Johnson pledged to cooperate in assisting Dr. Huang in getting the ANKK1 grant extended. Because UVa had not conclusively addressed Dr. Li's conduct or whether the actions taken against him were retaliatory, and in light of the fact that his grievance appeal was still pending, Dr. Huang declined Dr. Johnson's employment extension offer on November 19, 2010, fearing that, if he did so, further retaliation would ensue. On November 22, 2010, Dr. Huang wrote a letter to the Secretary of UVa's Board of Visitors in which he outlined the foregoing reasons for declining to sign the one-year extension offer.
At an unspecified point in November 2010, UVa's President directed the university's Audit Department to conduct a review of the grant funds expended on the ANKK1 grant, including issues related to Dr. Huang's allegations of level-of-effort misallocation. On January 12, 2011, the Audi Department issued its report. According to the report, Dr. Li's salary was originally charged to the ANKK1 grant at 7.5%; however, these charges were discontinued midway through the grant's first year, resulting in Dr. Li being charged at 4.75% for the initial year of the award. Further, Dr. Huang removed Dr. Li from the grant for the second year, and so none of Dr. Li's salary was charged to the grant for its second year. The report concluded as follows: "A limited review of all other charges on the award was performed and nothing of significant concern was identified, other than Dr. Huang's continued salary charges when he went on leave." Reid Dep., Ex. A.
On December 7, 2010, Dr. Huang, who by this point was no longer employed by UVa, filed a report alleging grant fraud
Craig Aff., Ex. B.
In May 2011, UVa closed out the ANKK1 grant. According to Mr. Craig, as of the date on which he swore out his affidavit, there has not been "any inquiry, expression of concern, or investigation by NIH into Dr. Huang's allegations of `fraudulent effort reports'...." Craig Aff. ¶ 10.
Summary judgment should be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the evidence of a genuine issue of material fact "is merely colorable or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). "As to materiality... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. 2505.
In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). If the nonmoving party bears the burden of proof, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court-that there is an absence of evidence
Dr. Huang brings a claim under 42 U.S.C. § 1983 against Dr. Li and Dr. Johnson, in both their individual and official capacities, for violating his free speech rights as secured by the First Amendment to the Constitution.
At the outset, I note that the First Amendment protects "not only the affirmative right to speak, but also the `right to be free from retaliation by a public official for the exercise of that right.'" Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 560 (4th Cir.2011) (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir.2000)). And it is well-established that "public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (citations omitted); accord McVey v. Stacy, 157 F.3d 271, 277 (4th Cir.1998) ("The First Amendment protects public employees from termination of their employment in retaliation for their exercise of speech on matters of public concern."). Clearly, though, this right is not limitless. See McVey, 157 F.3d at 277 ("[T]his First Amendment protection of speech on matters of public concern is not absolute and must be tempered by the government's interest in governmental effectiveness, efficiency, order, and the avoidance of disruption.").
In Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and its progeny, the Supreme Court of the United States identified two lines of inquiry to guide courts in the interpretation of the constitutional protections afforded to the speech of public employees. Garcetti, 547 U.S. at 418, 126 S.Ct. 1951. The first question is "whether the employee spoke as a citizen on a matter of public concern." Id. (citing Pickering, 391 U.S.
"[T]o determine whether a public employee has stated a claim under the First Amendment for retaliatory discharge,"
McVey, 157 F.3d at 277-78; see also Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 316 n. 26 (4th Cir.2006) ("The McVey test fleshes out the balancing test first articulated by the Supreme Court in [Pickering], and further explained in later decisions."). Thus, the first inquiry here is whether Dr. Huang was speaking as a citizen on a matter of public concern when he voiced his suspicions about what he perceived as fraudulent allocations of levels of effort. I will examine the two prongs of this inquiry separately.
The first question is whether Dr. Huang was speaking as a citizen or in his capacity as an employee of UVa. See Bevis v. Bethune, 232 Fed.Appx. 212, 215 (4th Cir.2007) ("Because almost anything that occurs within a public [entity] could be of concern to the public,' the focus of our inquiry is on `whether the speech at issue ... was made primarily in the plaintiff's role as citizen or primarily in his role as employee.'" (quoting DiMeglio v. Haines, 45 F.3d 790, 805 (4th Cir.1995))). The Supreme Court has held that, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti, 547 U.S. at 421, 126 S.Ct. 1951.
In his amended complaint, Dr. Huang admits that, as the principal investigator on the ANKK1 grant, "it was his responsibility to allocate, alter, and approve any level of effort charged to the project account." Am. Compl. ¶ 38. Further, the NIH Grants Policy Statement furnished to Defendants by Dr. Huang describes the principal investigator as being "responsible and accountable to the grantee and NIH for the proper conduct of the project or activity" and "responsible for ensuring compliance with the financial and administrative aspects of the award." National Institutes of Health, NIH Grants Policy Statement, 13, 18 (rev. Dec. 1, 2003), available at http://grants.nih.gov/grants/policy/ nihgps_2003/nihgps_2003.pdf. Defendants argue that Dr. Huang assumed the role of principal investigator on the ANKK1 grant in his capacity as an employee of UVa, and that one of his responsibilities as such was necessarily to report suspected level-of-effort misallocation. When he did so, Defendants maintain, he executed one of his official duties, thus precluding his speech from First Amendment protection. Accordingly, Defendants contend that they are entitled to summary judgment with respect to Dr. Huang's § 1983 claims.
In response, Dr. Huang argues that he had no legal duty to tell Dr. Johnson about Dr. Li's suspected misallocation of federal grant funds. As a tenure ineligible research faculty member, Dr. Huang asserts that his duties involved laboratory research and scholarship, not uncovering and reporting suspected fraud. According to Dr. Huang, the only entity that he was obligated to report to was the NIH, and yet he is suing Defendants for their response to statements he made to them, not to the NIH. In other words, Dr. Huang maintains that he was only a principal investigator vis-à-vis the NIH, and not as it concerned his relationship to UVa and Defendants.
Ultimately, I find Dr. Huang's argument in this regard unpersuasive, and I agree with Defendants' assertion that Dr. Huang was speaking in the course of his official duties. First, as previously quoted, the NIH's policy statement for grants makes it
Second, Dr. Huang's argument that he could not have been speaking pursuant to any official duties because he was not hired to uncover and report fraud is tenuous. Even assuming, arguendo, that Dr. Huang was not explicitly required to report suspicions regarding the allocation of levels of effort, the Fourth Circuit has stated that the absence of such a requirement cannot be dispositive. See Bevis, 232 Fed.Appx. at 215. Moreover, as a fundamental matter, it simply cannot be the case that all public employees who reveal their suspicions regarding the misappropriation of funds, but who are not employed as auditors, investigators, or their equivalents, are necessarily speaking as private citizens when they come forward. Such a blanket rule would not only defy reason — for surely some public employees who report allegations of fraud to their immediate supervisors are, in fact, merely speaking in their capacities as employees — but it would also contravene the Supreme Court's instruction that the proper inquiry to be conducted here is a practical one. Garcetti, 547 U.S. at 424, 126 S.Ct. 1951.
Looking to relevant case law outside the Fourth Circuit, I observe that, in Renken v. Gregory, 541 F.3d 769 (7th Cir.2008), the United States Court of Appeals for the Seventh Circuit confronted facts analogous to those presented by the instant matter. In that case, a tenured engineering professor at a public university submitted a grant proposal to the National Science Foundation ("NSF") in which he listed himself as the principal investigator. Id. at 770-71. Subsequent to the university's approval of the grant proposal, the professor received correspondence from the dean of the engineering school regarding conditions tied to the university's matching of funds for the grant project. Id. at 771. In his response letter to the dean, the professor criticized several aspects of the dean's proposal. Id. Of particular note was the professor's contention that the dean's proposal would breach NSF regulations
In arguing that his complaints about potential grant fund misuse were not conveyed pursuant to his official duties, the professor raised two points. First, he pointed to the fact that his job responsibilities only included teaching, research, and service to the university. Id. at 773. Second, he argued that his speech took place outside the context of his employment because it was only by the terms of the grant, not his job, that he was required to complain about the dean's proposal with respect to the funds. Id. at 774. However, these arguments failed to persuade the Seventh Circuit:
Id. Further, the court noted that, "whether [the professor] was explicitly required to apply for grants does not address whether his efforts related to the grant, including his complaints, were a means to fulfill his employment requirements, namely teaching and research." Id. Similarly, in the case at hand, while Dr. Huang's employment may not have required him to submit grant proposals in which he listed himself as the principal investigator, it is clear that his decision to do so with respect to the ANKK1 grant was a means towards fulfilling the research and publication goals that he was employed to pursue.
Another particularly instructive case is Kalderon v. Finkelstein, No. 08 Civ. 9440, 2010 U.S. Dist. LEXIS 88099 (S.D.N.Y. Mar. 10, 2010). In Kalderon, a biomedical research scientist employed by a university as the principal investigator on an NIH grant alleged retaliation for speaking out about what she perceived as the mishandling of grant funds. Id. at *60-62. The magistrate judge concluded that her complaints about the grant's mismanagement were made pursuant to her official duties vis-à-vis the NIH grant. Id. at *63. As such, "her statements have no analogue to citizen speech, and, thus, are not protected by the First Amendment." Id. (citation and internal quotation marks omitted).
At bottom, the inquiry here boils down to an examination of the capacity in which Dr. Huang communicated his speech to Dr. Johnson — was Dr. Huang acting as a government employee, or as a private
An employee speaks about a matter of public concern when he addresses "an issue of social, political, or other interest to a community." Urofsky v. Gilmore, 216 F.3d 401, 406-07 (4th Cir.2000). "While `[t]he inquiry into the protected status of speech is one of law, not fact,' such status `must be determined by the content, form, and context of a given statement, as revealed by the whole record.'" Ridpath, 447 F.3d at 316-17 (quoting Connick, 461 U.S. at 147-48 & n. 7, 103 S.Ct. 1684). The basis of Dr. Huang's assertion that his speech concerned a matter of public importance is essentially his contention that speech relating to public corruption is a matter of public concern per se. It is true that the Supreme Court has highlighted the revelation of government wrongdoing as an especially noteworthy example of a matter about which the public is rightly concerned. See, e.g., Garcetti, 547 U.S. at 425, 126 S.Ct. 1951 ("Exposing governmental inefficiency and misconduct is a matter of considerable significance."); Connick, 461 U.S. at 148, 103 S.Ct. 1684 (citing an effort "to bring to light actual or potential wrongdoing or breach of public trust" as indicative of a matter of public concern). However, in the case at hand, to label what Dr. Li allegedly did by manipulating the levels of effort on the ANKK1 grant as "public corruption" over-exaggerates the severity of what Dr. Huang purports actually took place. Therefore, Dr. Huang's speech cannot automatically be deemed to have been communicated about a matter of public concern.
In Edwards v. City of Goldsboro, 178 F.3d 231, 247 (4th Cir.1999), the Fourth Circuit stated that whether a public employee's speech relates to a matter of public concern "rests on whether the public or the community is likely to be truly concerned with or interested in the particular expression, or whether it is more properly viewed as essentially a private matter between employer and employee." This test is in accordance with the Supreme Court's more recent observation that "public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value
Applying these tests, I find that Dr. Huang's speech did not constitute a matter of public concern. While the issue of level-of-effort allocation understandably represented a matter of significance to Dr. Huang, it simply cannot be said that the larger public would be truly concerned about Dr. Li increasing his level of effort by 2.5% or about the fact that Ms. Gautier, who performed tasks that benefited essentially everybody who worked in Dr. Li's laboratory, was receiving more of her salary from the ANKK1 grant funds than perhaps she should have been. While the community might very well care about systemic fraud or the widespread misappropriation of federal funds across a university department, here, Dr. Huang's speech concerned allegations of level-of-effort misallocation over the course of a couple months in the management of a single NIH grant. Ultimately, day-to-day matters of one grant's administration do not represent issues of public concern such that speech carried out in that context merits First Amendment protection. Therefore, even assuming that Dr. Huang spoke as a citizen, I find that he did not do so on a matter of public concern.
Dr. Huang has also brought a claim against Dr. Li and Dr. Johnson in both their individual and official capacities for retaliating against him in violation of the FCA. According to Dr. Huang, by inappropriately assigning levels of effort, Dr. Li over-exaggerated the amount of work that was being done on the ANKK1 grant. Dr. Huang further alleges that the drawing of funds from the ANKK1 grant to pay Dr. Li's and Ms. Gautier's salaries represented false claims of federal funds. By investigating how the levels of effort were being assigned, and then raising his concerns to UVa personnel and others, Dr. Huang maintains that he took lawful actions geared towards exposing Dr. Li's attempt to defraud the federal government.
"The FCA is a statutory scheme designed to discourage fraud against the federal government." Mann v. Heckler & Koch Def., Inc., 630 F.3d 338, 342 (4th Cir.2010). Its "cornerstone provision" bars "any person from presenting `a false or fraudulent claim for payment or approval' to the United States." Id. at 342-43 (quoting 31 U.S.C. § 3729(a)). In 1986, Congress amended the FCA by adding an anti-retaliation provision to protect whistleblowers. See False Claims Amendments Act, Pub.L. No. 99-562, § 4, 100 Stat. 3153, 3157-58 (1986). This whistleblower provision, under which Dr. Huang brings his FCA claim against Defendants, is found at 31 U.S.C. § 3730(h), and its
In order to prevail on a claim brought under § 3730(h), an employee must show that: "(1) he took acts in furtherance of a qui tam suit; (2) his employer knew of these acts; and (3) his employer [took adverse action against] him as a result of these acts." Zahodnick v. Int'l Bus. Machs. Corp., 135 F.3d 911, 914 (4th Cir.1997). However, it should be noted that an employee does not need to have necessarily filed a qui tam action in order to have engaged in protected activity. Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 867 (4th Cir.1999). Rather, protected activity in this context encompasses steps taken "in furtherance of an action ... filed or to be filed under this section." 31 U.S.C. § 3730(h). This language "manifests Congress' intent to protect employees while they are collecting information about a possible fraud, before they have put all the pieces of the puzzle together." United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 740 (D.C.Cir.1998). I proceed to an analysis of the three elements of an FCA retaliation action as set forth in Zahodnick.
The chief inquiry here is whether Dr. Huang's activity fell within the protected category under the FCA. If a reasonable jury could not find that it did, Defendants are entitled to summary judgment in their favor with respect to Dr. Huang's FCA claims. As the Fourth Circuit has put it, "employees engage in protected activity when they meet what has been called the `distinct possibility' standard." Mann, 630 F.3d at 344. Under
In order to determine whether Dr. Huang has made these two showings, it is useful to review the relevant chronology of facts. Dr. Huang contends that he engaged in investigation in furtherance of an FCA claim when he internally reported his suspicions that Dr. Li was manipulating levels of effort on the ANKK1 grant. In August 2009, Dr. Huang met with Dr. Lou. At their meeting, Dr. Lou conveyed to Dr. Huang his own suspicions that Dr. Li was using funds from his grant to pay for unrelated costs. This conversation, together with the several instructions he received directing him to return the laptop he had purchased, prompted Dr. Huang to review UVa policies regarding grant management. As a result, Dr. Huang learned that, because he was the principal investigator for the ANKK1 grant, he should have been receiving monthly financial reports on the expenditure of the grant's funds.
Dr. Huang inquired about the availability of these reports, first by contacting Ms. Franco on August 30, 2009, and then by emailing Mr. Benham on September 1 and 2, 2009. At this point, though, Dr. Huang had no reasonable basis for suspecting fraud or misappropriation of grant funds. After failing to obtain a definitive response from Mr. Benham, though, Dr. Huang evidently began developing suspicions as evidenced by his email to Dr. Johnson on September 4, 2009. In the email, Dr. Huang not only expressed his desire to review the reports, but also his concern that someone else might have been controlling the ANKK1 grant funds. Specifically, Dr. Huang wrote, in pertinent part:
Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 33 (quoted verbatim). To be sure, Dr. Huang's email to Dr. Johnson on September 4, 2009, did not specifically mention that he was investigating fraud against the government, or that he was pursuing a qui tam action per se. However, there can be no doubt that, as of this date, at least Dr. Johnson had been put on notice that Dr. Huang suspected something fraudulent might have been occurring with respect to the ANKK1 grant.
Dr. Huang's receipt of the monthly reports from Dr. Li in late September 2009 confirmed his suspicions that somebody else was controlling the allocation of grant funds for salary purposes and that somebody else had altered the levels of effort
Johnson Dep., 53:16-22; see also Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 4.
In Yesudian, the United States Court of Appeals for the D.C. Circuit discussed the fact that such an internal complaint can qualify as protected activity. See 153 F.3d at 743 ("[T]here also is no requirement that a plaintiff tell, or threaten, his employer that he will report his allegations to the government — or to anyone outside of the employing institution. As the statute does not require the employee to make an outside complaint in order to render his conduct protected, he cannot be required to advise of or threaten such a complaint."). Indeed, "a requirement that an employee announce he has gone outside the institution would undercut the statutory purpose of encouraging employees to expose fraud." Id. (citation omitted). In order for such an internal report to constitute protected activity under the FCA, it must allege that there has been a fraud on the government. See Zahodnick, 135 F.3d at 914 ("Simply reporting ... concern of a mischarging to the government to [one's] supervisor ... does not suffice to establish that [one] was acting in furtherance of a qui tam action.") (citation and internal quotation marks omitted). That being said, such an allegation of fraud need not be explicit. See Eberhardt, 167 F.3d at 868 (stating that an employee can provide a sufficient degree of notice "by any action which a factfinder reasonably could conclude would put the employer on notice that litigation is a reasonable possibility."). So, the question remains: in disclosing his suspicions of fraud directly to Dr. Johnson, did Dr. Huang engage in activity that, from his perspective at the time, he reasonably believed carried the distinct possibility of leading to an FCA suit?
In urging that the question be answered in the negative, Defendants argue that, as a matter of law, Dr. Huang's activity cannot be considered protected under the FCA. According to Defendants, Dr. Huang's "obsession with levels of effort on the ANKK1 Grant dealt simply with an administrative detail on a NIH grant which was routine, meant to be adjusted over time consistent with established grant administration procedures, was in fact adjusted in response to his request consistent
However, Defendants' argument in this regard is unpersuasive. The relevant inquiry is whether, when viewed in an objective light, there was a distinct possibility of fraud at the time the evidence presented itself to Dr. Huang. Therefore, the fact that the NIH declined to investigate years after the fact, while perhaps buttressing Defendants' assertion that no fraud actually took place, does not correspondingly mean that Dr. Huang's activity — in the form of raising an alarm — was unprotected. Moreover, whether Dr. Li's conduct actually constituted fraud is essentially irrelevant; the question is not whether, looking backward, Defendants' conduct was actionable under the FCA, but rather whether, at the time, Dr. Huang believed his disclosure could reasonably lead to an FCA action. Ultimately, I find that, on the basis of the facts recounted above, reasonable jurors could disagree on the answer to this question. It cannot be said, as a matter of law, that Dr. Huang did not engage in protected activity. I find that the "distinct possibility" test here is best answered by a jury.
The second component of a prima facie retaliation case under § 3730(h) is that the employer knew of the acts taken by the employee that constituted protected activity. See Zahodnick, 135 F.3d at 914. Mere knowledge that Dr. Huang engaged in a particular activity, though, is not sufficient to meet this element. Rather, Defendants must have also known that Dr. Huang's activity amounted to protected activity. See, e.g., Glynn, 807 F.Supp.2d at 412-13 ("The employer must have knowledge of more than the employee's acts; the employer must have known that these acts raised a distinct possibility of a FCA suit.") (citations omitted). Once again, I find that reasonable jurors could disagree about whether Defendants knew Dr. Huang had engaged in protected activity, and that the question cannot be answered as a matter of law.
On the one hand, when Dr. Huang approached him, Dr. Johnson may have believed that Dr. Huang was raising a grievance or matter of administration and nothing more, not that Dr. Huang was actively engaged in the investigation of fraud on the government. On the other hand, Dr. Huang claims to have specifically alleged fraud by Dr. Li in his communications with Dr. Johnson, and the excerpt of Dr. Johnson's deposition testimony quoted above essentially confirms as much. Therefore, unlike the employer in Glynn, which had no knowledge that its employee suspected fraud or illegality, 807 F.Supp.2d at 413, Dr. Johnson had at least some knowledge in this regard. Moreover, as the Glynn court pointed out, when, as here, the employee is not specifically charged with investigatory duties (like, say, an auditor is), "there are no `magic words,' and the employee need only show that the employer was aware of the employee's investigation." Id. at 413 n. 15 (citation omitted). Because the relevant facts do not indisputably reveal a
As previously discussed, the last element of an FCA retaliation action is that the plaintiff-employee suffered an adverse employment action on the basis of the protected activity in which he engaged. In other words, the plaintiff must establish a causal connection between the investigation of fraud against the government and the alleged retaliatory action. The court in Glynn distilled this causation element as follows:
807 F.Supp.2d at 415 (quoting S.Rep. No. 99-345, at 35, reprinted in 1986 U.S.C.C.A.N. 5266, 5300).
At the outset, I observe that the facts uncovered through discovery can support an inference that, to the extent Defendants' issuance of the non-renewal letter constitutes retaliation, such retaliation was, at least in part, caused by Dr. Huang's engagement in that which he contends was protected activity. A brief restatement of the pertinent facts supports this inference. On September 2, 2009, Dr. Huang renewed his request for the monthly status reports by emailing Mr. Benham about them for the second time. The next day, September 3, 2009, Mr. Benham forwarded Dr. Huang's request to Dr. Li. Hours later, Dr. Li told Mr. Benham to hold back on issuing the reports. Later that same day, Dr. Li emailed Mr. Benham, and copied Dr. Johnson, stating in part that "[i]t is time to do proper paper work and let him go. Too much headache for me." Dr. Huang contends that a jury could reasonably interpret this series of events as evidence of Dr. Li's intent to retaliate against Dr. Huang for raising the monthly reports issue (which Dr. Li knew would inevitably lead to Dr. Huang discovering the level-of-effort alterations). I agree.
However, the more difficult question here is whether Defendants have affirmatively shown that Dr. Huang would have received a non-renewal notice notwithstanding his uncovering of the level-of-effort issue. There can be no doubt that Dr. Li had issues with Dr. Huang before Dr. Huang ever requested or received the monthly status reports for the grant. For example, Dr. Li reprimanded Dr. Huang for not fulfilling some of the conditions of his promotion, writing in a letter dated May 30, 2008 that Dr. Huang's performance had been "far below what I expect" and citing Dr. Huang's "low and unacceptable productivity." Li Decl., Ex. B. Then, in the fall of 2008, Dr. Huang submitted the NIH proposal with Dr. Li listed in the budgeted personnel as a co-investigator despite having failed to disclose to Dr. Li that he was doing so. Dr. Li described this conduct as "unacceptable" and "unethical." Li Decl. ¶ 13. Thereafter, in January 2009, Dr. Li emailed Dr. Johnson, writing:
Johnson Aff., Ex. B (quoted verbatim). Finally, and perhaps most significantly from a temporal perspective, approximately three months before Dr. Huang received his non-renewal notice, the laptop episode took place. Dr. Huang's initial intransigence in the face of several instructions to return the laptop clearly exacerbated frustrations with his conduct. Additionally, while it is true that, up until he received his non-renewal notice, Dr. Huang had received what one would generally regard as positive performance reviews throughout his employment,
Based on the foregoing points, Defendants contend that the decision to not renew Dr. Huang's term of employment was made before he received the monthly status reports and before he communicated his suspicions to Dr. Johnson. Supporting Defendants' contention is the FSGC's conclusion that "[i]t appears unlikely that [Dr. Huang]'s appointment would have been renewed in any case." Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 21. However, there are compelling counterarguments that cut against the notion that Dr. Huang's non-renewal was a fait accompli and unconnected to his complaints about fraud.
For example, as Dr. Huang points out, there was no discussion of his non-renewal in Dr. Johnson's draft letter of October 30, 2009, which Dr. Johnson composed just a few weeks before Dr. Huang received his non-renewal letter. Additional, more persuasive evidence is found in Dr. Johnson's deposition testimony. Dr. Johnson testified that the decision not to renew Dr. Huang was made "[j]ust prior to November 20." Johnson Dep., 44:15. Accepting Dr. Johnson's testimony, the fact that Dr. Huang's non-renewal was based at least in part if not primarily on the events that took place in September and October 2009 cannot be definitively ruled out. Finally, though they are by no means dispositive of Defendants' motives with respect to Dr. Huang's non-renewal, the FSGC and FSPRP reports lend credence to Dr. Huang's assertion that his protected activity directly caused his non-renewal. The former described Dr. Huang's charge
In the end, I find that there is ample evidence from which a reasonable jury could infer that Defendants' decision to issue Dr. Huang the non-renewal letter was motivated, at least in part, by Dr. Huang's protected activity — namely, presenting his suspicions about the fraudulent allocation of levels of effort on the ANKK1 grant. However, I cannot say that Defendants have affirmatively shown that they would have made the same decision irrespective of Dr. Huang's protected activity. While a record of friction between Dr. Huang and Defendants certainly exists, the temporal proximity of Dr. Huang's allegations regarding misappropriation of grant funds and his non-renewal could lead reasonable jurors to conclude that Defendants' stated rationales for their decision to issue the non-renewal letter were merely a pretext for otherwise retaliatory action. "Courts should be especially cautious before granting summary judgment when pretext and retaliatory animus are at issue." Harrington v. Aggregate Indus. Ne. Region, Inc., 668 F.3d 25, 33 (1st Cir.2012). Here, the relevant evidence uncovered during discovery does not allow me to conclude, as a matter of law, that Defendants would have necessarily issued Dr. Huang the non-renewal letter in the event he had not reported his suspicions of fraud against the government. Accordingly, Defendants are not entitled to summary judgment on Dr. Huang's FCA retaliation claims.
Defendants assert that, even if they are not entitled to summary judgment on Dr. Huang's FCA claims, no prospective injunctive relief is realistically available to him in the event he were to prevail at trial.
While that may be true, there is a difference between reinstatement being a hard pill for Defendants to swallow and it being impossible to effectuate. Thus far, Defendants
With respect to injunctive relief, Dr. Huang argues that, to the extent reinstatement is impossible or impracticable, the alternative equitable remedy of front pay is still available. In Duke v. Uniroyal Inc., 928 F.2d 1413, 1423 (4th Cir. 1991), the Fourth Circuit observed that, "notwithstanding the desirability of reinstatement, intervening historical circumstances can make it impossible or inappropriate," and in such scenarios, "front pay is an available remedy to complete the panoply of remedies available to avoid the potential of future loss." (citations omitted). Thus, "front pay may serve as a substitute or a complement" to reinstatement. Id. at 1424. That being said, it should be noted that Duke was not an FCA case.
The FCA's retaliation provision states that an employee "shall be entitled to all relief necessary" to be made whole. 31 U.S.C. § 3730(h)(1). Clearly, such broad, sweeping language would imply that front pay is an available remedy. However, in the subsection of the retaliation provision labeled "Relief," front pay is not one of the enumerated remedies. Id. § 3730(h)(2). In Wilkins v. St. Louis Housing Authority, 198 F.Supp.2d 1080, 1091 (E.D.Mo. 2001), aff'd, 314 F.3d 927 (8th Cir.2002), the district court acknowledged the fact that "the FCA does not specifically include front pay as a remedy available to the court to effect full compensation." (citation omitted). Nevertheless, the court concluded that "Congress intended that front pay be awarded in the appropriate case to effect the express Congressional intention that a claimant under § 3730(h) be made whole." Id. The Wilkins court's resolution of the inherent tension in § 3730(h) regarding forms of relief, while sound, is of course not binding on me. However, for purposes of resolving Defendants' motion for summary judgment, the availability of front pay to Dr. Huang should he prevail at trial need not be decided at this juncture. Rather, motions filed in advance of trial represent the appropriate means and moment to litigate this issue.
For the reasons stated herein, Defendants' motion for summary judgment, as it concerns Dr. Huang's § 1983 claims, shall
The Clerk of the Court is hereby directed to send a certified copy of this memorandum opinion and the accompanying order to all counsel of record.
Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 23, at 1.
See Johnson Aff., Ex. C.
Craig Aff. ¶ 4.
31 U.S.C. § 3730(h)(1) (2010). Significantly, Congress amended this subsection in 2009, eliminating language that referred to potential defendants as "employers." Pub.L. No. 111-21, § 4(d), 123 Stat. 1617, 1624 (2009). In 2010, Congress again amended § 3730(h)(1), this time simply to clean up the language of the subsection. Pub.L. 111-203, § 1079A(c)(1), 124 Stat. 1376, 2079 (2010). As opposed to the 2009 amendment, the 2010 amendment did not materially change the meaning or breadth of § 3730(h)(1). For purposes of resolving the motion presently before me, the 2009 amendment is important. Prior to the 2009 amendment, plaintiffs could only file FCA retaliation claims against their employers. In the instant matter, that would have meant Dr. Huang's individual-capacity claim against Defendants, and probably his official-capacity claim as well, would fail as a matter of law. However, by eliminating the reference to "employers" as defendants in § 3730(h)(1), the 2009 amendment effectively left the universe of defendants undefined and wide-open. Notably, the 2009 amendment applies to conduct on or after the date of enactment, which was May 20, 2009. Pub.L. No. 111-21, § 4(f), 123 Stat. 1617, 1625 (2009). Therefore, it is the 2009-amended version of § 3730(h)(1) that applies to the alleged retaliation in the case at hand. In the absence of specific guidance from the United States Court of Appeals for the Fourth Circuit dictating that there can be no individual liability in FCA retaliation claims after the 2009 amendment, and because Defendants do not assert in their motion that Dr. Huang's FCA claims against them are legally impermissible, I will not dismiss those claims out of hand. Instead, I proceed to the ordinary summary judgment analysis.