USA, et al v. Memphis Radiological Professio, et al

Filing

OPINION filed : for the reasons stated in the district court's well-reasoned opinion, we AFFIRM the judgment of the district court. We DENY McDonough's motion to certify to the Tennessee Supreme Court the question regarding the common law claim [4080282-2] filed by Mr. William Benjamin Ryan, decision not for publication pursuant to local rule 206. Alice M. Batchelder, Chief Circuit Judge, Authoring; Eric L. Clay, Circuit Judge and Jeffrey S. Sutton, Circuit Judge.--[Edited 11/15/2011 by LMN] (This entry is being resent to add the statement "decision not for publication pursuant to local rule 206."

Case: 09-5933

Document: 006111129180

Filed: 11/15/2011

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0765n.06
FILED

Case No. 09-5933

Nov 15, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ex rel,
Plaintiff,
PATRICK McDONOUGH,
Plaintiff-Appellant,
v.
MEMPHIS RADIOLOGICAL
PROFESSIONAL CORPORATION;
MEDICAL ACCOUNTS RECEIVABLE
MANAGEMENT, dba Med-Arm, Inc.,
Defendants-Appellees,
SEMMES-MURPHY CLINIC,
Defendant.

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LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE

_______________________________________
BEFORE: BATCHELDER Chief Judge; CLAY and SUTTON, Circuit Judges.
ALICE M. BATCHELDER, Chief Judge. This case arises from Memphis Radiological
Professional Corporation’s (“MRPC”) termination of its CEO, Patrick McDonough, under the
“without cause” provision of his contract after only 6 months on the job. In accordance with the
contract, MRPC paid him the remainder of his salary for the year. McDonough claims that he was
fired for refusing to keep quiet about unlawful billing practices at MRPC, but MRPC says that it
decided to terminate him because a valued employee, Jannett Horne, claimed that she had been

Case: 09-5933

Document: 006111129180

Filed: 11/15/2011

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No. 09-5933, United States, et al. v. Memphis Radiological, et al.

verbally abused by McDonough. MRPC says that it found Horne to be credible, and that it was
afraid of losing two valuable key employees, Horne and George Dendrinos, if it did not discharge
McDonough.
McDonough brought this action, raising one federal claim – now abandoned – as well as
claims under Tennessee common law for retaliatory discharge and the Tennessee Public Protection
Act (“TPPA”). The district court granted summary judgment to MRPC on both of those claims. The
court held that McDonough’s common law claim failed because a required element of the claim is
that the plaintiff be an at-will employee, and it was undisputed that McDonough was a contract
employee. The court held that McDonough’s TPPA claim failed for two reasons: first, McDonough
could not show that he refused to remain silent about alleged illegal activities, because it was the
MRPC board of directors who first informed him of and hired him to tackle the suspect activities;
and second, even if he could show that he refused to remain silent, he could not establish an
exclusive causal connection between his supposed refusal to remain silent and his termination, as is
required under the TPPA.
McDonough appealed. He also moved to certify to the Tennessee Supreme Court the
question of whether the common law claim requires an at-will employment relationship.
After carefully reviewing the district court’s opinion, the briefs, and the record in this case,
we conclude that the district court did not err in granting summary judgment to MRPC. As the
district court correctly set out the applicable law and correctly applied that law to the undisputed
material facts contained in the record, issuance of a full written opinion by this court would serve
no useful purpose. Further, we find no need to certify any question to the Tennessee Supreme Court.
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No. 09-5933, United States, et al. v. Memphis Radiological, et al.

As the district court explained, the Tennessee common law claim of retaliatory discharge clearly
requires an at-will employment relationship. We also note that since the district court issued its
opinion, the Tennessee Supreme Court has twice explicitly stated that at-will employment is a
required element of the common law claim. See Kinsler v. Berkline, LLC, 320 S.W.3d 796, 800
(Tenn. 2010); Gossett v. Tractor Supply Co., Inc., 320 S.W.3d 777, 781 (Tenn. 2010).
Accordingly, for the reasons stated in the district court’s well-reasoned opinion, we AFFIRM
the judgment of the district court. We DENY McDonough’s motion to certify to the Tennessee
Supreme Court the question regarding the common law claim.

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