Huang v. Rector & Visitors of the Univ. of Va.

• Decision Date: 06 September 2012
• Docket Number: Case No. 3:11–cv–00050.
• Citation: 896 F.Supp.2d 524
• Parties: WEIHUA HUANG, Plaintiff, v. The RECTOR AND VISITORS OF the UNIVERSITY OF VIRGINIA, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

896 F.Supp.2d 524

WEIHUA HUANG, Plaintiff,

v.The RECTOR AND VISITORS OF the UNIVERSITY OF VIRGINIA, et al., Defendants.

Case No. 3:11–cv–00050.

United States District Court,

W.D. Virginia,

Charlottesville Division.

Sept. 6, 2012.

Adam Augustine Carter, Robert Scott Oswald, The Employment Law Group PC, Washington, DC, for Plaintiff.

Richard Croswell Kast, University of Virginia, Charlottesville, VA, for Defendants.

MEMORANDUM OPINION

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.¹

Generally, Dr. Huang alleges that Defendants violated his right, secured by the First Amendment to the Constitution, to speak out on a matter of public concern when they retaliated against him for making disclosures about the purported misappropriation of federal grant funds. Further, Dr. Huang contends that these disclosures were protected by the False Claims Act (“FCA”), 31 U.S.C. § 3730. Following rather extensive discovery, the parties briefed the issues raised in Defendants' motion for summary judgment, and I conducted a hearing on August 21, 2012. For the reasons that follow, I will grant in part and deny in part Defendants' motion.

I. Background

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.²

In April 2008, Dr. Li attempted to lower Dr. Huang's salary; however, Dr. Huang refused to agree to the salary reduction. Thereafter, on May 30, 2008, Dr. Li sent Dr. Huang a letter in which he described his disappointment with Dr. Huang's overall performance. Dr. Li's issuance of the letter seems to have been precipitated, at least in part, by the friction over Dr. Huang's salary reduction. In the letter, Dr. Li stated that Dr. Huang's performance was “far below what I expect....” Li Decl., Ex. B. Dr. Li outlined four major areas in which Dr. Huang was expected to improve. Among other things, Dr. Li cited Dr. Huang's “low and unacceptable productivity” with respect to publishing. Id. Notably, though, these complaints were absent from Dr. Huang's annual performance review for the period July 2007 through June 2008. In fact, in that evaluation, Dr. Li graded Dr. Huang's research and publication as “commendable.” Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 16.

On September 16, 2008, Dr. Huang emailed Dr. Li, stating his desire to be the principal investigator (“PI”), or at least co-PI, on a National Institutes of Health (“NIH”) grant resubmission. Dr. Li declined via email, writing that Dr. Huang was “not there yet.” Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 36. Ultimately, Dr. Li listed Dr. Huang as a co-investigator, instead of co-PI, on this grant resubmission.

Later in September 2008, Dr. Huang submitted his own proposal for an NIH grant to fund a research project called “Functional Characterization of ANKK1 and its Genetic Variants” (the “ANKK1 grant”). Without Dr. Li's permission or knowledge, Dr. Huang listed himself as the sole PI and Dr. Li as a co-investigator in the budgeted personnel for the grant. After learning of this conduct, Dr. Li wrote Dr. Huang a letter on October 10, 2008, informing him that such behavior was “unacceptable” and “unethical” and, should such misconduct recur, Dr. Huang would “face serious consequences up to and including termination.” Li Decl. ¶ 13. However, Dr. Huang denies having ever received this letter. On October 16, 2008, Dr. Huang emailed Dr. Li to apologize for the aforementioned conduct. The next day, Dr. Li accepted Dr. Huang's apology. Additionally, Dr. Li agreed that, in the event the NIH awarded the ANKK1 grant, he would serve as a co-investigator and permit Dr. Huang to utilize his laboratory to conduct the relevant research. Ultimately, Dr. Johnson and the Department approved Dr. Huang's proposal for submission to the NIH.

On January 23, 2009, Dr. Huang met with Dr. Li and Dr. Johnson to discuss Dr. Huang's duties and expectations. The next day, in advance of an evaluation that Dr. Huang was evidently about to have with Dr. Johnson, Dr. Li emailed the following to Dr. Johnson in reference to Dr. Huang:

After your evaluation is over, we have to find way to take care of this issue. He has been this way for a couple of years and I am so tired and feel hopeless for this situation. He never show too much appreciation for whatever he gets. He always think he is right and he deserves more and better. I have been “back-up” so many times but I never see an end. This is why I feel that, this time, I must keep my words and do not change my decision. I know if I let him to win this one through you, he will have another one (which will destroy both of us). I cannot be so nice anymore to him. To be honest, I never see second person like him among more than 50 students, postdoctoral fellows and technicians who have been worked for me. I wish I did not change his visa and let him go at that time. But I never expect he becomes so ‘selfish’ and ‘untrusted.’

Johnson Aff., Ex. B (quoted verbatim).

Eventually, in June 2009, the NIH approved the ANKK1 grant for a period to run from June 15, 2009 through February 28, 2011, with Dr. Huang serving as the principal investigator. Dr. Huang proposed to allocate 50% of his time, referred to as level of effort, to the ANKK1 grant, and he listed Dr. Li's supervisory effort as 5%.³ Additionally, it should be noted that, in his grant proposal, Dr. Huang had specified that two additional co-investigators would be recruited to assist with research.

In August 2009, Dr. Huang used a UVa-issued purchasing card to buy a $4,500 laptop computer for the purpose of conducting data analysis in furtherance of his grant research. On August 26, 2009, Dr. Li told Dr. Huang via email to cancel the order because Dr. Huang had failed to comply with proper procedures in using the purchasing card as such and had not obtained permission to buy the laptop. In his response, Dr. Huang wrote to Dr. Li:

Since you do not allow me to recruit any person for my project, I have to do data analysis by myself in addition to doing bench works at the lab. So I have to work day and night to catch up the progress as I proposed in my project. As such, I think purchasing a qualified laptop workstation is appropriate and necessary to accomplish my project successfully.

I was and am not aware that this purchasing is against any university purchasing regulation. If you are aware of, please do let me know the detailed university policy so that I can follow. Otherwise, I am afraid that I cannot cancel this order.

Pl.'s Mem. Opp'n Mot. Summ. J., Ex. 55 (quoted verbatim).

Dr. Li wrote back to Dr. Huang, stressing the necessity of obtaining approval before ordering such costly items, even if the money for the purchase comes out of one's grant funds. Initially, Dr. Huang further ignored instructions from Dr. Johnson and Gregory Benham (“Mr. Benham”), the Chief Operating Officer of the Department, to return the laptop and refund the money. Eventually, though, on September 1, 2009, Dr. Huang emailed Mr. Benham, stating that he had apprised himself of the relevant purchasing guidelines. Dr. Huang further represented that, had he been aware of these guidelines, he would not have purchased the laptop without approval. The parties do not appear to dispute the fact that, around this time, Dr. Huang returned the laptop.

In his email to Mr. Benham on September 1, 2009, Dr. Huang raised the separate issue of the availability of monthly financial reports for the ANKK1 grant. Dr. Huang wrote: “By going through university policies about grant management these days, I happened to learn that the university requires timely...