United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-1760

___________________________

United States of America, ex rel. Chickoiyah Miller, ex rel. Cathy Sillman

lllllllllllllllllllll Plaintiff

Chickoiyah Miller; Cathy Sillman

lllllllllllllllllllllRelators - Appellants

v.

Weston Educational, Inc., doing business as Heritage College

lllllllllllllllllllll Defendant - Appellee

____________

Appeal from United States District Court 

for the Western District of Missouri - Kansas City

____________

 Submitted: January 14, 2015

 Filed: April 29, 2015

____________

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

____________

BENTON, Circuit Judge.

Chickoiyah Yehnee Miller and Cathy Lynn Sillman filed a qui tam False

Claims suit against HeritageCollege, alleging itfraudulently induced the Department
of Education (DOE) to provide funds by falsely promising to keep accurate student

records. Each relator also alleged retaliation under the FCA and wrongful discharge

under state law. The district court granted summary judgment to Heritage. Relators

appeal, except on Sillman’s retaliation claim. Having jurisdiction under 28 U.S.C.

§ 1291, this court reverses and remands the FCA claim, and affirms the employment

claims.

I.

Heritage, a for-profit college, signed a ProgramParticipation Agreement (PPA)

with the DOE to participate in programs under Title IV of the Higher Education Act

of 1965. See 20 U.S.C. §§ 1070-1099d (2012) (providing federal financial assistance

to eligible post-secondary students). Under the PPA, Heritage and its students 1

submit applications for specific federal grants, loans, or scholarships. Around 97%

of Heritage students receive Title IV aid, accounting for about 90% of gross tuition.

From 2009 to 2012, the DOE disbursed $32,817,727 to Heritage.

The PPA obligates Heritage to “establish and maintain such administrative and

fiscal procedures and records as may be necessary to ensure proper and efficient

administration of funds.” See also 20 U.S.C. § 1094(a)(3) (same language); 34

C.F.R. § 668.14(b)(4) (same language). This includes “[d]ocumentation” of each

student’s eligibility and of any refunds due on behalf of the student. 34 C.F.R. §

668.24(c)(iii)-(iv). To be eligible for funds, a student must make “satisfactory

progress.” Id. §§ 668.32(f), 668.34. SP is measured by cumulative grade point

average. See Heritage Coll., ABHES Institutional Self-Evaluation Report 72

(2007) (noting student must attain 70% GPA by end of program to make SP). 

Except where otherwise noted, all citations are to Title IV statutes and

1

regulationsin effect when Heritage signed the PPA in February 2009. Citation to the

FCA is to the current version, except where otherwise noted. 

-2-
Refunds to the DOE may be due when a student withdraws, depending on how much

of a program the student completed. See 34 C.F.R. § 668.22(e) (noting no refund

required if student completes 60% or more of program). Withdrawal is determined

by the “last date of academic attendance.” Id. § 668.22(b)(1).

Relators, both former Heritage employees, claim that Heritage altered grade

and attendance records from 2006 to 2012 to ensure students made SP and to avoid

refunds, thereby maximizing Title IV funds. Miller saw an administrator increase

student grades without instructor knowledge or consent, erasing the gradesin a paper

grade book and replacing them. She identifies a number of her own students—from

before and after the signing of the PPA—whose transcripts reflect higher gradesthan

she awarded. She saw administrators alter attendance records tomark absentstudents

as present. At meetings in 2009 and 2010, Miller heard administrators discuss

keeping students at Heritage long enough to get all Title IV funds possible. Two

other program managers testified that administrators ordered them to go through

instructor grade books and change failing grades to passing. Other Heritage

employees and instructors witnessed or participated in altering grade and attendance

records, before and after the signing of the PPA. For the purpose of summary

judgment, Heritage does not dispute it altered records. 

In December 2010, Relators complained to Heritage about this and other

alleged misconduct. Heritage fired Sillman on December 27, 2010, citing poor job

performance and interpersonal skills. Miller quit on January 7, 2011, claiming that

she had been excluded from meetings, removed as program manager, refused a

previously-offered employment position, docked Saturday pay, and threatened with

termination. 

Relators filed a qui tam FCA action, alleging numerous theories of FCA

liability. The federal government declined to intervene. Relators added claims for

retaliation under the FCA and wrongful discharge under Missouri law. The court

-3-
granted summary judgment to Heritage on all claims. Relators appeal on one theory

of FCA liability, fraudulent inducement. They also appeal the judgments on wrongful

discharge and Miller’s retaliation claim. 

II.

Relators claim that Heritage committed fraudulent inducement by signing the

PPA without intending to maintain “records as may be necessary to ensure proper and

efficient administration of funds.” The district court held Heritage did not promise

to keep perfect records and any promise was not material to the disbursement of

funds. This court reviews de novo a grant of summary judgment. Torgerson v. City

of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Summary judgment is

proper when “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). A court “must view

the evidence in the light most favorable to the opposing party” and draw “reasonable

inferences” in favor of that party. Tolan v. Cotton, 134 S. Ct. 1861, 1866, 1868

(2014) (per curiam) (internal quotation marks omitted).

The FCA makes liable anyone who “knowingly makes, uses, or causes to be

made or used, a false record or statement material to a false or fraudulent claim.” 31

U.S.C. § 3729(a)(1)(B). Under fraudulent inducement, FCA liability attaches to 2

“each claim submitted to the government under a contract so long as the original

contract was obtained through false statements or fraudulent conduct.” In re Baycol

Prods. Litig., 732 F.3d 869, 876 (8th Cir. 2013), citing United States ex rel. Marcus

v. Hess, 317 U.S. 537, 543-44, 552 (1943) (finding contractors liable under FCA for

all claims submitted under government contract obtained by collusive bidding). 

This provision applies to claims pending on or after June 2008. Fraud 2

Enforcement and Recovery Act of 2009 (FERA), Pub. L. No. 111-21, § 4(f), 123

Stat. 1617, 1625, codified at 31 U.S.C. § 3729 note.

-4-
Accord, United States v. United Techs. Corp., 626 F.3d 313, 320 (6th Cir. 2011)

(“False statements underlying multi-year contracts generate a stream of related

invoices and cause the government to pay all of the invoicesrelated to the contract.”);

United States ex rel. Longhi v. United States, 575 F.3d 458, 468 (5th Cir. 2009)

(“[A]lthough the Defendants’ subsequent claims for payment made under the contract

were not literally false, [because] they derived from the original fraudulent

misrepresentation, they, too, became actionable false claims.” (second alteration in

original) (internal quotation marks omitted)); United States ex rel. Hendow v. Univ.

of Phoenix, 461 F.3d 1166, 1173 (9th Cir. 2006) (“[L]iability will attach to each

claim submitted to the government under a contract, when the contract . . . was

originally obtained through false statements or fraudulent conduct.”); United States

ex rel. Main v. Oakland City Univ., 426 F.3d 914, 916 (7th Cir. 2005) (“If a false

statement is integral to a causal chain leading to payment, it is irrelevant how the

federal bureaucracy has apportioned the statements among layers of paperwork.”);

Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 788 (4th Cir. 1999)

(stating “any time a false statement is made in a transaction involving a call on the

U.S. fisc, False Claims Act liability may attach” even if “the claims that were

submitted were not in and of themselves false”). See also United States v.

Neifert-White Co., 390 U.S. 228, 232 (1968) (noting FCA “was intended to reach all

types of fraud, without qualification, that might result in financial loss to the

Government”).

Fraudulent inducement requires a plaintiff to show: (1) the defendant made a

“false record or statement”; (2) the defendant knew the statement was false; (3) the

statement was material; and (4) the defendant made a “claim” for the government to

paymoney or forfeit money due. SeeBaycol, 732 F.3d at 875-76 (“[A] claimalleging

fraud in the inducement of a government contract does focus on the false or

fraudulent statements which induced the government to enter into the contract at the

outset.”); United States ex rel. Vigil v. Nelnet, Inc., 639 F.3d 791, 796, 799 (8th Cir.

-5-
2011) (requiring materiality). At issue is whether Heritage made a knowingly false

statement, and whether it was material.

A.

Relators claim that Heritage falsely stated it would keep accurate student

records. Heritage argues that the PPA does not require the maintenance of these

specific grading and attendance records.

For a statement to be knowingly false, a person must have “actual knowledge

of the information,” or act in “deliberate ignorance” or “reckless disregard” of the

truth or falsity of the information. 31 U.S.C. § 3729(b). “Innocent mistakes and

negligence are not offenses under the Act. In short, the claim must be a lie.” United

States ex rel. Onnen v. Sioux Falls Indep. Sch. Dist. No. 49-5, 688 F.3d 410, 413 n.2

(8th Cir. 2012). A defendant’s “reasonable interpretation of any ambiguity inherent

in the regulations belies the scienter necessary to establish a claim of fraud.” United

States ex rel. Ketroser v. Mayo Found., 729 F.3d 825, 832 (8th Cir. 2013).

By executing the PPA, Heritage represented it would “establish and maintain

such administrative and fiscal procedures and records as may be necessary to ensure

proper and efficient administration of funds.” To demonstrate this promise wasfalse,

it is not enough to show that Heritage did not comply with the PPA; Relators must

show that Heritage, when signing the PPA, knew accurate grade and attendance

records were required, and that Heritage intended not to maintain those records. See

Main, 426 F.3d at 917 (“[I]f the University knew about the rule and told the [DOE]

that it would comply, while planning to do otherwise, it is exposed to penalties under

the False Claims Act.”).

Relators point to the following evidence of Heritage’s pre-PPA knowledge and

intent. First, they note that Heritage’s own policy states, “It is vitally important that

-6-
the school maintain accurate student records. We are responsible to the state, the

accrediting agency, the U.S. Department of Education . . . . Student records must be

accurate and complete. We must be able to create and keep records of all student’s

enrollment activities, academic achievement, and financial activities.” HeritageColl.

Heritage Inst., Student Records Operation Manual 3 (2007). They further note that

Heritage knew it must keep “[d]ocumentation” of student eligibility and refunds, see

34 C.F.R. § 668.24(c)(iii)-(iv), to which grade and attendance records are necessary. 

Relators emphasize a federal regulation providing, “Falsification of any document

received from a student or pertaining to a student’s eligibility for assistance under”

Title IV is an example of fraud that “cause[s] misuse and the likely loss of Title IV,

HEA program funds.” Id. § 668.83(c)(2)(iii)(A). While this regulation addresses

when DOE can take emergency action, a reasonable jury could find it shows

Heritage’s understanding of what records are “necessary to ensure proper and

efficient administration of funds.”3

Second, Relators highlight a pattern of record falsification. The district court

found, “Relators have presented evidence of numerous instances where Heritage

administrators changed a student’s failing grade to a passing grade without the

instructor’s knowledge and consent or instructed a teacher to change a failing grade

to a passing grade.” It also found, “Relators have submitted evidence of numerous

instances where students were awarded attendance hours when they apparently did

not physically attend class.” For example, two instructors at Heritage before the

PPA’s execution, Rebecca Boom and Leanne Smith, testified that administrators

Relators argue falsification ofrecords is inconsistent with Heritage’s fiduciary 3

duty to administer Title IV funds with “the highest standard of care and diligence.” 

34 C.F.R. § 668.82. However, Relators fail to argue how Heritage’s knowledge of

this general duty shows Heritage’s pre-PPA knowledge and intent for the types of

alterations made here. Relators also point to several statements of fact that were

uncontroverted on summary judgment. These statements reflect Heritage’s current

litigation position and do not reveal Heritage’s pre-PPA knowledge or policies. 

-7-
ordered some students’ grades changed from failing to passing. Boom also testified

she gave, under orders from Heritage administrators, at least 25 to 30 students

attendance when they did not fulfill the requirements. She saw another administrator

do the same. The director of education in early 2006, Allison Bilbrey,said that there

was a pattern of Heritage employees falsifying grades and attendance records

(including the last date of attendance). Student Danielle L. Kimball declared that her

attendance record reflects false hours throughout 2008 and 2009. Student Lonnie T.

Black swore that his transcript has passing grades for multiple classes that he failed,

and that he was often given attendance for days he was not in class. Miller declared

Heritage regularly altered records, and highlights 9 pre-PPA students whose grades

were increased without her knowledge and 7 whose attendance records were altered

multiple times. She testified that in 2008 and 2009 she saw more than 50 instances

of administrators adding attendance for absent students by writing on the roster

before it was electronically recorded. Heritage admitted that altered attendance

resulted in some studentsremaining in school when they should have been withdrawn

and a refund calculated. 

Relators also call attention to records falsified in 2009 to 2012, after the PPA

was signed. Miller witnessed Heritage’s new director of education erase the grades

of an entire class from the instructor’s paper grade book, and replace them. She

identifies several other students whose grade or attendance records were altered. 

Program manager Shana Hopke recalled multiple meetings where Heritage

administrators told all program managers to go through instructor grade books and

change failing gradesto passing. Hopke changed severalstudents’ grades by erasing

and replacing them in the paper book, and saw an administrator, multiple times, do

the same. She also testified that hundreds of attendance records were falsified. 

Program manager Tesse Graham resigned because twice she was ordered to go

through instructor grade books and increase grades below 70%. Instructors Linda

Glover, Mindy Hattey, Rena Keller, and Territa Smith, as well as administrator Jenny

Caruso, stated that administrators awarded attendance when a student was not in class

-8-
and did not complete work in makeup time. Glover identified severalstudents whose

grades were increased without her knowledge, and Territa Smith said an administrator

routinely asked her to increase gradesfrom failing to passing (which she did a couple

of times). Relators argue that the pre- and post-PPA pattern of altered records

indicates Heritage intended to manipulate Title IV funding. Heritage denies this

intent, but offers no other reason for changing the records. 

Third, Relators point to evidence that Heritage aimed to maximize its Title IV

funding. One instructor testified that, between September 2007 and September 2009,

Heritage administrators “made it clear in a couple ofstaff meetingsthat basically they

were receiving funds from the federal government for every butt that was in the seat

and it was very important that we keep butts in the seat.” Another instructor swore

that administrators explicitly linked student attendance and financial aid, and that

retention efforts(including daily callsfrommultiple Heritage employees)were geared

toward getting a student through 60% of the program so the student would not lose

financial aid. (No refunds to DOE are required if a student completes 60% of the

program.) In 2009 and 2010, Miller heard administrators discuss “the importance of

retaining students as long as possible in order to receive the maximum amount of

federal student loan funds” and that “the goal was to keep students long enough to

grab the entire amount of tuition paid for by their federal student loan funds.” 

Based on this evidence, a reasonable jury could find that Heritage knew it had

to keep accurate grade and attendance records and intended not to do so. True, that

none of the identified altered records impacted Title IV disbursements or refunds

undermines Relators’ evidence of intent. So does the fact that most of Relators’

examples of altered records come after the signing of the PPA. But at summary

judgment this court examines whether there is a genuine issue of material fact; it does

not weigh the evidence or decide credibility. Tolan, 134 S. Ct. at 1866. Viewed

favorably toRelators, Heritage’s policy and its agreement to complywith certain Title

IV regulations reflect its knowledge that accurate grade and attendance records were

-9-
necessary to administer funds; it had a pattern of altering records, both before and

after signing the PPA; and it aimed to maximize Title IV funds. See id. at 1866, 1868

(noting evidence and reasonable inferences are viewed in favor of nonmoving party). 

The district court acknowledges that Relators’ evidence “gives rise to the possibility

that some of the inaccurate attendance hours were recorded in order to delay the

student’s effective withdrawal date, and thereby increase the amount of federal aid

that Heritage could retain.” There is a dispute of material fact whether, when signing

the PPA, Heritage intended to manipulate its records in order to impede the proper

administration of funds, and thus whether Heritage made a false promise to the DOE. 

The district court found otherwise because “Heritage did not explicitly promise

to prohibit administratorsfromchanging student grades orto only award grades given

by instructors. Nor did Heritage promise to maintain perfect attendance records that,

in every instance, are based on the student’s physical presence in the classroom.” 

Relators cite no regulation establishing specific attendance or grading policies. But

the grade and attendance records Heritage kept are “necessary to ensure the proper

and efficient administration of funds”: They determine eligibility (and thus

disbursements) and refunds. See 34 C.F.R. §§ 668.34 (noting GPA determines SP,

which determines eligibility), 668.22(b) (setting withdrawal date as “last date of

academic attendance as determined by the institution from its attendance records”). 

While not every grade or day of attendance impacts funding, the DOE cannot

determine whether funds were properly administered if records are inaccurate. 

Heritage, for the purpose of this appeal, does not dispute that it falsified these records. 

It does not argue that it acted in accordance with legitimate grade and attendance

policies, or only falsified records that could not impact Title IV funding. Because

there is a dispute of material fact about how Heritage understood its obligations and

whether it intended to comply with the PPA, the district court erred in granting

summary judgment. 

-10-
B.

Heritage asserts that the falsified grade and attendance records did not cause

improper disbursement or retention of Title IV funds, and thus were not material to

government funding decisions. The district court agreed that any false statement by

Heritage about recordkeeping was not material. 

Materiality requires a “causal link between the ‘false statement or record’ and

the Government’s payment of a false claim.” Vigil, 639 F.3d at 799 (noting false

statement is actionable if it leads government to make payment it would otherwise not

make). The FCA is concerned about regulatory noncompliance only if it causes the

4

government to pay money. Id. at 795-96. See Baycol, 732 F.3d at 877 (finding

liability sufficiently alleged when government paid out on contracts that it likely

would not have entered without defendant’s false statements).

This court found materiality required by the predecessor to 31 U.S.C. §

4

3729(a)(1)(B), which made liable anyone who used false statements orrecords “to get

a false or fraudulent claim paid or approved by the Government.” See Vigil, 639 F.3d

at 799 (interpreting § 3729(a)(2)). After Heritage signed the PPA in February 2009,

Congress amended this section to explicitly include materiality. See FERA, §

4(a)(1), 123 Stat. at 1621, codified at 31 U.S.C. § 3729(a)(1)(B) (providing liability

for anyone who “knowingly makes, uses, or causes to be made or used, a false record

or statement material to a false or fraudulent claim” (emphasis added)). Congress

also defined materiality: A statement is “material” if it has “a natural tendency to

influence, or be capable of influencing, the payment or receipt of money or property.”

Id. § 4(a)(2), 123 Stat. at 1623, codified at 31 U.S.C. § 3729(b)(4). Heritage suggests

that this case should be governed by the pre-amendment case law on materiality,

because the statutory definition is only applicable to conduct on or after May 2009.

Id. § 4(f), 123 Stat. at 1625. However, Heritage does not address the amended

liability provision, which applies to cases pending on or after June 2008. Id., 123

Stat. at 1625. This court concludes Heritage’s recordkeeping promise in the PPA is

material under either standard of materiality. See Vigil, 639 F.3d at 799 (noting both

old and new versions of FCA require causal link between false statement and

payment of false claim).

-11-
The Seventh and Ninth Circuits have examined materiality in circumstances

very similar to this case. Each circuit found material a university’s knowingly false

promise in its PPA (in both, to refrain from giving incentive compensation to

recruiters). Hendow, 461 F.3d at 1177; Main, 426 F.3d at 916. Cf. Onnen, 688 F.3d

at 415 (citing Hendow and Main when discussing materiality). The Seventh Circuit

found that the false statement in the PPA was “integral to a causal chain leading to

payment,” even though it was a step removed from the actual payment. Main, 426

F.3d at 916 (“The University ‘uses’ its phase-one application [the PPA] . . . when it

makes (or ‘causes’ a student to make or use) a phase-two application for payment. 

No more is required under the statute.”). The Ninth Circuit highlighted three

provisionsin the PPA and associated laws that expressly condition Title IV eligibility

on banning incentive compensation. Hendow, 461 F.3d at 1175-76. The Ninth

Circuitrejected a distinction between conditions of participation and payment, noting,

“These conditions are also ‘prerequisites,’ and ‘the sine qua non’ of federal funding,

for one basic reason: if the University had not agreed to comply with them, it would

not have gotten paid.” Id. at 1176 (noting PPA “is the condition of payment that the

federal government requires—a promise that the University shall not break the law”). 

Heritage does not dispute the standard for materiality, but focuses on the link

between individual falsified records and specific Title IV disbursements or refunds. 

This focus conflates theories of liability, and ignores Baycol and casesfrom the other

circuits. As noted, fraudulent inducement examinesthe false statementsthat induced

the government to enter the contract—liability for the specific claims for payment

attaches “so long as the original contract was obtained through false statements or

fraudulent conduct.” Baycol, 732 F.3d at 875-76 (rejecting that plaintiff must tie

“allegations of [defendant’s] fraud to specific fraudulent claims for payment,” and

attaching liability to every claim submitted under fraudulently induced contract). 

Accord, United Techs. Corp., 626 F.3d at 320; Longhi, 575 F.3d at 468; Hendow,

461 F.3d at 1173; Main, 426 F.3d at 916; Harrison, 176 F.3d at 788. Here, the focus

-12-
must be on Heritage’s representation that it would maintain records necessary to the

administration of Title IV funds.

As with the incentive compensation ban, participation in Title IV is “explicitly

conditioned, in three different ways, on compliance” with adequate recordkeeping. 

See Hendow, 461 F.3d at 1175. First, to be eligible for Title IV an institution “shall”

enter into a PPA that “shall condition the initial and continuing eligibility of an

institution to participate in a program upon compliance with” certain requirements,

including that the “institution will establish and maintain such administrative and

fiscal procedures and records as may be necessary to ensure proper and efficient

administration of funds.” 20 U.S.C. § 1094(a) (emphases added).

Second, a federal regulation specifies:

An institution may participate in any Title IV, HEA program . . . only if

the institution entersinto a written programparticipation agreement with

the Secretary . . . . A program participation agreement conditions the

initial and continued participation of an eligible institution in any Title

IV, HEA program upon compliance with the provisions of this part

[including maintaining records necessary to ensure proper and efficient

administration of funds]. 

34 C.F.R. § 668.14(a)(1), (b)(4) (emphases added). Third, the PPA incorporates the

same recordkeeping requirement, and states, “The execution ofthis Agreement by the

Institution and the Secretary is a prerequisite to the Institution’s initial or continued

participation in any Title IV, HEA Program.” (emphasis added). 

Heritage could not have executed the PPA without stating it would maintain

adequate records. See Hendow, 461 F.3d at 1176 (noting statute, regulation, and

agreement “all explicitly condition participation and payment on compliance with,

among other things, the precise requirement that relators allege that [defendant]

knowingly disregarded”). And without the PPA, Heritage could not have received

-13-
any Title IV funds. This forms a “causal link” between the promise and the

government’s disbursement of funds. See Vigil, 639 F.3d at 799. 

Heritage protests that a finding of materiality here makes any regulatory

violation actionable under the FCA. The Ninth Circuit rejected a similar argument

in Hendow: 

The University argues that the incentive compensation ban is nothing

more than one of hundreds of boilerplate requirements with which it

promises compliance. This may be true, but fraud is fraud, regardless

of how “small.” The University is worried that our holding today opens

it up to greater liability for innocent regulatory violations, but that is not

the case—as we held above, innocent or unintentional violations do not

lead to False Claims Act liability. But that is no reason to innoculate

institutions of higher education from liability when they knowingly

violate a regulatory condition, with the intent to deceive, as is alleged

here.

Hendow, 461 F.3d at 1175. The Seventh Circuit agreed: “The University protests

that this approach would treat any violation of federal regulations in a funding

programas actionable fraud, but that’s wrong. A university that accepts federalfunds

that are contingent on following a regulation, which it then violates, has broken a

contract. But fraud requires more than breach of promise: fraud entails making a

false representation . . . . Tripping up on a regulatory complexity does not entail a

knowingly false representation.” Main, 426 F.3d at 917 (internal citation omitted). 

If Heritage intended to deceive the DOE to access Title IV funding, it did more than

commit a regulatory violation: It committed fraud.

To the extent Heritage asserts that its statements, even if false, did not cause

any actual harm, this is not an element of materiality. See Baycol, 732 F.3d at 877

(not requiring proof that fraudulently induced contract caused government to pay

more for pills than it would have otherwise). See also id. at 880-81 (Loken, J.,

-14-
dissenting) (discussing when damages are warranted); United States ex rel. Feldman

v. Van Gorp, 697 F.3d 78, 87-88, 91, 93 (2d Cir. 2012) (finding false statements

material to grant renewals, and addressing government’s receipt of qualitatively

different program under damages); United Techs. Corp., 626 F.3d at 320, 322

(finding false statements material but noting government is not entitled to damages

if it received fair market value); Longhi, 575 F.3d at 472-73 (finding liability for

fraudulently induced grant even though defendant produced satisfactory product, and

awarding as damages the full amount paid). Cf. United States ex rel. Sanders v.

Am.-Amicable Life Ins. Co. of Tex., 545 F.3d 256, 259 (3d Cir. 2008) (“[A] party

can be subject to FCA liability (i.e. civil penalties) even where the government suffers

no monetary injury.”); Harrison, 176 F.3d at 785 n.7 (“[T]here is no requirement that

the government have suffered damages as a result of the fraud.”). The court erred in

ruling Heritage’s promise was not material to the government’s disbursement

decisions.

III.

Miller claims that Heritage retaliated against her in four ways: (1) exclusion

from meetings, (2) demotion, (3) docking of Saturday pay, and (4) withdrawal of an

offer for a career services position. The district court granted summary judgment to 5

Heritage, finding that Miller failed to prove it engaged in retaliatory conduct. 

The FCA provides a cause of action to an employee that 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 [FCA] action.” 31 U.S.C. § 3730(h) (providing for

In her statement of facts and discussion of wrongful discharge, Miller also 5

asserts that she was threatened with termination. Miller does not provide any detail

of this alleged threat—for example, who made it, when it was made, and what was

said—or cite to the record. 

-15-
reinstatement, backpay, and special damages for retaliated-against employee). “A

plaintiff must prove that (1) the plaintiff was engaged in conduct protected by the

FCA; (2) the plaintiff’s employer knew that the plaintiff engaged in the protected

activity; (3) the employer retaliated against the plaintiff; and (4) the retaliation was

motivated solely by the plaintiff’s protected activity.” Schuhardt v. Washington

Univ., 390 F.3d 563, 566 (8th Cir. 2004). 

6

The district court did not err in finding that Heritage’s actions were not

retaliatory. Although one meeting was held without Miller’s knowledge, the subject

of the meeting was not part of her job and she concedes she was not excluded. 

Miller’s claim that she was denied Saturday pay is speculative: it is based on a single

day when Miller cannot recall if she was paid or not. This is insufficient to support

a claim for retaliation.

Miller asserts she was demoted because she was told by two Heritage

administrators that she would no longer be a program manager and should focus on

getting her degree. Shortly after this conversation, the vice president assured Miller

that it was “not true,” there would be no change in her position, and she did not need

a degree. The district court noted that Miller was not demoted: Her salary and her job

responsibilities did not change, and no demotion was formalized or put in writing. 

Miller argues that even if she was not demoted, being told that she would be is still

retaliation—presumably as a “threat[]” or “harass[ment].” Miller does not explain

why this qualifies as a threat or harassment when she was soon told she would not be

To establish the standard for retaliatory conduct, Miller cites a Ninth Circuit 6

case holding that an employer’s action is not retaliation under the FCA unless it

would be an adverse action under Title VII. See Moore v. Cal. Inst. of Tech. Jet

Propulsion Lab., 275 F.3d 838, 847-48 (9th Cir. 2002). This court has cited Title VII

case law when examining FCA retaliation. See, e.g., Townsend v. Bayer Corp., 774

F.3d 446, 457 (8th Cir. 2014), citing Torgerson, 643 F.3d at 1046. But Miller cites

no case where this court adopts the Title VII standard for FCA retaliation claims.

Miller also failsto explain how Heritage’s actions are adverse actions under Title VII.

-16-
demoted and experienced no adverse impact (for example, no decrease in pay). 

Miller argues that Heritage failed to prove her job was not taken away, but the burden

is on Miller to show retaliatory conduct. See Schuhardt, 390 F.3d at 566. 

Miller also claims that Heritage offered her a new position with career services,

but withdrew the offer after she complained about fraud. Miller fails to explain, and

cites no authority, that this constitutes harassment or discrimination in the terms of

conditions of employment. Although she seems to dispute that this would have been

a lateral move, Miller argues no advantages or increase in salary for the career

services position. She assertsthat without the career services position, she effectively

had no job. As discussed, however, she has not demonstrated she was removed as

program manager. The district court properly dismissed Miller’s retaliation claim

based on her failure to demonstrate retaliatory action by Heritage.

IV.

Miller and Sillman both claim that they were wrongfully discharged. Missouri

recognizes a “‘very narrowly drawn’” public policy exception to at-will employment. 

Frevert v. Ford Motor Co., 614 F.3d 466, 471 (8th Cir. 2010), quoting Margiotta v.

Christian Hosp. Ne. Nw., 315 S.W.3d 342, 346 (Mo. banc 2010). “An at-will

employee may not be terminated for refusing to perform an illegal act or reporting

wrongdoing or violations of law to superiors or third parties.” Margiotta, 315

S.W.3d at 346.

A. 

Miller claims she was constructively discharged. She resigned on January 7,

2011. “Constructive discharge occurs when an employer deliberately renders an

employee’s working conditions so intolerable that the employee is forced to quit his

or her job. . . . [T]he working conditions must be such that a reasonable person would

-17-
find them intolerable.” Wallingsford v. City of Maplewood, 287 S.W.3d 682, 686

(Mo. banc 2009) (internal quotation marks omitted), citing Gamber v. Missouri Dep’t

of Health & Senior Servs., 225 S.W.3d 470, 477 (Mo. App. 2007). Constructive

discharge “requires more than a single incident; rather, the claim requires proof of a

continuous pattern of discriminatory treatment.” Id. 

A reasonable person would not find Miller’s working conditions intolerable: 

She was not demoted, did not receive a reduction in salary, was not excluded from

meetings, and did not lose any job responsibilities. There is no evidence she would

have experienced these actions had she not resigned. While Miller was denied the

career services position, she does not explain why this creates objectively intolerable

working conditions. See Gamber, 225 S.W.3d at 479 (finding that informing plaintiff

of inability to transfer to another county did not render conditions intolerable). The

district court did not err in dismissing Miller’s wrongful discharge claim.

B.

Heritage terminated Sillman on December 27, 2010. Sillman claims she was

wrongfully discharged because she reported misconduct. The district court found

Sillman failed to demonstrate that the reported misconduct violated any law or clear

public policy.

To demonstrate wrongful discharge, a plaintiff “‘must show that he reported

to superiors or to public authorities serious misconduct that constitutes a violation of

the law and of well established and clearly mandated public policy.’” Frevert, 614

F.3d at 471, quoting Margiotta, 315 S.W.3d at 347. The reported violation must be

based on “‘explicit authority’” such as “‘a constitutional provision, a statute, a

regulation based on a statute or a rule promulgated by a governmental body.’” Id.,

quoting Margiotta, 315 S.W.3d at 346. “[I]t must affirmatively appear from the face

of the petition that the legal provision in question involves a clear mandate of public

-18-
policy.” Id. (internal quotation marks omitted). “A vague or general statute,

regulation, or rule cannot be successfully pled under the at-will wrongful termination

theory, because it would force the court to decide on its own what public policy

requires.” Margiotta, 315 S.W.3d at 346. See also Fleshner v. Pepose Vision Inst.,

P.C., 304 S.W.3d 81, 96 (Mo banc. 2010) (“Public policy is not to be determined by

the varying personal opinions and whims of judges or courts. . . .” (internal quotation

marks omitted)).

Sillman sent a letter to Heritage on December 16, 2010, reporting that Heritage

was failing to “return any remaining financial aid funds over to students” and failing

to “tell the students they exist.” The letter claimed that this “goes beyond innocent

mistakes and crosses the line into student loan fraud that may get someone in very

bad trouble.” (The letter reported three other purportedly unlawful practices, which

Sillman does not discuss on appeal.) The letter did not address falsification of grade

or attendance records.

Heritage argues that Sillman links the reported misconduct to legal violations

for the first time on appeal. But Sillman’s complaint cited numerous “explicit

authorit[ies].” Frevert, 614 F.3d at 471. On appeal, Sillman points to 34 C.F.R. § 7

668.14(b)(25) (2010), which provides that an institution is liable for “[i]mproperly

spent or unspent funds,” and § 668.82(a)-(b), which provides that an institution is a

fiduciary subject to “the highest standard of care and diligence.” These provisions

do not involve clear public policy: Both offer only general standards. Compare

Margiotta, 315 S.W.3d at 348 (finding regulation providing “patient has the right to

receive care in a safe setting” is too vague to support clear public policy), with Boyle

v. Vista Eyewear, Inc., 700 S.W.2d 859, 876 (Mo. App. 1985) (requiring eyeglasses

This court does not consider 34 C.F.R. § 685.309(g), which was not in 7

Sillman’s complaint or raised before the district court. See Holland v. Sam’s Club,

487 F.3d 641, 644 (8th Cir. 2007) (noting this court ordinarily does not consider

arguments raised for the first time on appeal).

-19-
manufacturers to harden and test eyeglasses mandates clear public policy). Further,

Sillman has not shown how the reported misconduct violates these two regulations. 

See Bazzi v. Tyco Healthcare Grp., 652 F.3d 943, 948 (8th Cir. 2011) (noting public

policy exception does not extend to “complaints about acts or omissions [plaintiff]

subjectively believes to be violations of the law or public policy”). 

Sillman argues that there “should be no doubt thatstealing student loan money

is serious misconduct that violates the law and public policy.” She points to 34

C.F.R. § 668.14(b)(1) (2010), which requires compliance with all relevant statutes

and related regulations of Title IV. It is insufficient to claim “theft” or violation of

unspecified Title IV regulations, and § 668.14(b)(1) is too vague to support clearly

mandated public policy. See Frevert, 614 F.3d at 471-72, citing Link v. K-Mart

Corp., 689 F. Supp. 982, 985 (W.D. Mo. 1988) (finding references to “theft” without

“implicat[ing]” any statute are insufficient to establish clear public policy), and

Adolphsen v. Hallmark Cards, Inc., 907 S.W.2d 333, 338 (Mo. App. 1995) (holding

violation of “federal safety regulations” without specifying which ones is

insufficient). The Dunn v. Enterprise case relied upon by Sillman does not suggest

otherwise, asthe plaintiffthere relied upon specific regulations detailing the formand

content of filings with the Securities and Exchange Commission. Dunn v. Enter.

Rent-A-Car Co., 170 S.W.3d 1, 8 (Mo. App. 2005) (finding Securities Act of 1933

and Securities Exchange Act of 1934 establish clearly mandated public policy). The

district court did not err in dismissing Sillman’s wrongful discharge claim.

* * * * * * *

The judgment is reversed in part and affirmed in part, and the case remanded

for proceedings consistent with this opinion.

______________________________

-20-