                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2014-CA-00551-SCT

HENRY ROOP

v.

SOUTHERN PHARMACEUTICALS
CORPORATION, GLEN LINGLE AND DOUGLAS
E. MARTIN


DATE OF JUDGMENT:                         04/07/2014
TRIAL JUDGE:                              HON. JAMES T. KITCHENS, JR.
TRIAL COURT ATTORNEYS:                    JIM WAIDE
                                          SCOTT W. COLOM
                                          JACK H. HAYES, JR.
                                          ADAM G. RABINOWITZ
                                          BEVERLY A. POHL
COURT FROM WHICH APPEALED:                LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  JIM WAIDE
                                          SCOTT W. COLOM
ATTORNEYS FOR APPELLEES:                  JACK H. HAYES, JR.
                                          BEVERLY A. POHL
                                          ADAM G. RABINOWITZ
NATURE OF THE CASE:                       CIVIL - OTHER
DISPOSITION:                              REVERSED AND REMANDED - 04/07/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ.

       WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.    Henry Roop sued Southern Pharmaceuticals Corporation (“SPC”) and its principal

owners, individually, claiming he has been terminated for reporting illegal activity, namely

a kickback scheme to be carried out through a straw employee. SPC countered that it fired
Roop for, among other things, not meeting his contract goals for the year. A jury found SPC

wrongfully terminated Roop for reporting illegal activity, and the jury awarded Roop

compensatory damages. The circuit court entered a judgment notwithstanding the verdict in

SPC’s favor. The circuit court reasoned that the jury would have had to speculate whether

the arrangement would have been illegal, as the employment, and thus the kickback, never

took place. Roop appealed, arguing that the judge had erred in overturning the jury’s verdict

and in not thereafter proceeding with a hearing on punitive damages.

¶2.    We find that, under the standard of review for a judgment notwithstanding the verdict,

all the testimony on Roop’s behalf and all reasonable inferences in his favor support the

jury’s verdict that Roop was fired for reporting illegal activity. Thus, the circuit court’s

judgment overturning the jury’s verdict is reversed, and this case is remanded to the circuit

court to reinstate the jury’s verdict and for further proceedings on Roop’s other claims for

punitive damages and attorney’s fees.

                       FACTS AND PROCEDURAL HISTORY

¶3.    Southern Pharmaceuticals Corporation (“SPC”) is a medical supply company owned

principally by Glenn Lingle and Doug Martin. Nearly seventy percent of SPC’s business is

funded by payments from Medicare and Medicaid. At the time, sales of diabetic equipment

amounted to roughly three percent of SPC’s operations. Henry Roop, who had several years

of experience in medical sales, approached SPC about helping to increase its diabetic sales

business. SPC hired Roop as its Diabetic Sales Director in June 2008.1 Under Roop’s

       1
       Under the employment agreement, Roop was to work for three years, beginning in
June 2008, for a salary of $75,000 per year, plus commission and other fringe benefits.

                                             2
contract, SPC could terminate Roop if he failed “to maintain a minimum run rate for

production of . . . [1,500] new diabetic patients per year based on each of the 15 branch

managers maintaining a minimum . . . of 100 new diabetic patients per year.”

¶4.    Roop traveled throughout Mississippi to help train SPC’s branch managers in selling

diabetic products. One of SPC’s principal owners, Martin, sent all branches a “Plan of

Action” for the following year. Martin specified that each branch manager would be required

to work with Roop to achieve 100 new diabetic enrollments a year. Over the course of

Roop’s brief employment, he received two positive evaluations. But one evaluation contained

some critiques, including failing to achieve the contract goal of 1,500 new diabetic patients

after the first year.

¶5.    A month before Roop’s termination, Martin called for Roop to focus his efforts on the

poorly performing branches, which included the branch in Brandon, Mississippi. The branch

manager in Brandon was Johnny Pettigrew. In July 2009, SPC sent Roop with Pettigrew to

make a sales call on Central Medical Health Services Inc. (“Central Medical”) in Brandon.

Roop and Pettigrew met with Patrick Gregory (hereafter “Patrick”), the clinical coordinator

of Central Medical, to solicit sales of SPC’s diabetic equipment. Martin had set up the

appointment with Patrick and had a preliminary conversation with Patrick about his wife

working for SPC.

¶6.    During the meeting, Pettigrew gave Patrick one of SPC’s employment applications

for Patrick’s wife, Josephine Gregory (hereafter “Josephine”), to complete. After leaving

Central Medical, Roop and Pettigrew went to lunch and discussed the sales call. According



                                             3
to Roop, Pettigrew told him that SPC was going to get in trouble, because Patrick’s wife was

not going to perform actual work or services for SPC. Roop called Martin and said that he

was unaware of this side deal and that it was illegal to give someone a kickback to induce

referrals. Martin called Roop back the next day and fired him. Roop received a termination

letter from SPC shortly after.

¶7.      Immediately after his termination, Roop engaged in email exchanges and phone

conversations with Lingle over his termination. The sides could not reach an agreement about

the termination, and Roop filed suit in September 2010. He alleged he was terminated for

reporting conduct that violated the Medicare and Medicaid Anti-Kickback Statute, 42 U.S.C.

§ 1320a-7b(b)(2) (2012). Roop’s suit also included claims for breach of contract and for

intentional infliction of mental distress. He sued Lingle and Martin individually for malicious

interference with contract. SPC asserted in defense that Roop had been terminated for cause

and denied any violation of federal law.

¶8.      The case was tried before a jury in November 2013. Roop, owners Lingle and Martin,

and Pettigrew all testified at trial. Patrick’s and Josephine’s deposition testimony was read

in open court. After Roop rested, SPC moved for a directed verdict on all claims. The circuit

court sustained the motion for a directed verdict in favor of Martin and Lingle, individually

dismissing them from the case. The circuit court also dismissed all claims against SPC except

the claim of wrongful termination for reporting illegal activity and the breach-of-contract

claim.




                                              4
¶9.    Following the grant of the directed verdict on most of Roop’s claims, SPC, in its

case-in-chief, presented testimony from another branch manager to show that Roop had

conflicts working with a branch manager. SPC rested but did not renew its motion for

directed verdict. The circuit court submitted the jury-verdict form to the jury, as follows:

       1.     Do you find from a preponderance of the evidence that [SPC] fired . .
              . Roop in violation of the terms of his employment contract?

       2.     Do you find from a preponderance of the evidence that [SPC] fired . .
              . Roop for reporting illegal activity?

       3.     What amount of actual damages do you award . . . Roop for lost wages?

¶10.   During jury deliberations, the jury sent a question to the judge about the language in

Question One on the jury-verdict form, asking, “Is SPC in violation or is Henry in violation

of the contract?” After on-the-record discussions, both sides had no objection to the trial

judge instructing the jury to reread the instructions, stating that the answer to their question

already was contained in the given instructions.

¶11.   After more deliberation, the jury returned its verdict. As to Question One for the

breach-of-contract claim, the jury found in SPC’s favor. (On the jury verdict form, the “No”

box was checked, and the “Yes” box also was checked but marked out with the word “error”

written beside it.) As to Question Two for the claim of termination for reporting illegal

activity, the jury rendered a verdict in Roop’s favor. In response to Question Three, the jury

set the amount of damages as $18,750.2



       2
        The circuit court polled the jury. Nine jurors agreed on the answer to question
number one, ten jurors agreed on the answer to question number two, and eleven jurors
agreed on the answer to question number three.

                                               5
¶12.   After the return of the verdict, Roop’s counsel requested that the trial proceed on the

punitive-damages phase. The circuit court denied Roop’s request because the judge found

punitive damages were not appropriate and he was concerned about an inconsistent verdict.

SPC then moved for a mistrial based on an inconsistent verdict3 and for a judgment

notwithstanding the verdict (JNOV).

¶13.   In response to SPC’s motion for JNOV, the trial judge stated that he was unable to

find any federal caselaw supporting Roop’s contention that SPC was engaging in illegal

activity. The trial judge also stated that “[c]learly, SPC would be in violation of the law if

they ‘hired’ Josephine Gregory to ‘work’ for them and [she] in fact did no work but was paid

a salary so that her husband might funnel referrals to SPC from Central Medical.” The judge

reasoned that to reach this result, “a jury would have to speculate that Josephine Gregory,

even if she had been hired, would have been a sham . . . [rather than] a bona fide employee.”

Finding that the jury was not permitted to engage in speculation and that a belief standard as

to illegality was not appropriate, the trial judge granted SPC’s motion for JNOV.

¶14.   Roop appealed and raised the following issues: (1) whether the circuit court erred in

granting JNOV on the issue of whether Roop was terminated for reporting illegal activity;

and (2) whether the circuit court erred in denying a punitive-damages instruction without

conducting an evidentiary hearing to determine whether punitive damages were appropriate.

                                        ANALYSIS




       3
        The trial judge declined to declare a mistrial because the disputed instructions were
agreed to by the parties. No issue regarding the mistrial was asserted on appeal.

                                              6
       I.     Whether the circuit court erred in granting JNOV on the issue of
              whether Roop was terminated for reporting illegal activity.

              A.      Standard of Review

¶15.   The standard of review for a trial court’s grant of a JNOV is de novo, and this Court

applies the same criteria as that of the trial court. Cheeks v. Autozone, Inc., 154 So. 3d 817,

822 (Miss. 2014). “[A] motion for a directed verdict challenges the legal sufficiency of the

evidence; it asks if the plaintiff met the burden of going forward on the evidence.” Wal-Mart

Stores, Inc. v. Littleton, 822 So. 2d 1056, 1058, (Miss. Ct. App. 2002). The Court must

“view the evidence in the light most favorable to the nonmoving party.” Cheeks, 154 So. 3d

at 822. “In essence, judgments as a matter of law present both the trial court and the appellate

court with the same question—whether the evidence, as applied to the elements of a party’s

case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been

obviated.” Cheeks, 154 So. 3d at 822 (quoting White v. Stewman, 932 So. 2d 27, 32 (Miss.

2006)).

¶16.   To decide if the circuit court erred in granting SPC’s motion for JNOV on the issue

of whether Roop was terminated for reporting illegal activity, we first must decide whether

the alleged activity Roop reported was in fact illegal. If so, then we must determine if SPC

fired Roop for reporting that illegal activity.

              B.      Whether the alleged activity Roop reported is in fact illegal.

¶17.   In McArn v. Allied Bruce-Terminix Co., Inc., 626 So. 2d 603 (Miss. 1993), we

established a narrow public-policy exception to Mississippi’s employment-at-will doctrine.

We held that “an employee who is discharged for reporting illegal acts of his employer . . .


                                                  7
is not barred by the employment at will doctrine from bringing action in tort for damages

against his employer.” Id. at 607. This also applies to written employment contracts. Id.

“Applicability of the exception does not require that a crime has already been committed, but

it does require that the acts complained of warrant the imposition of criminal penalties, as

opposed to mere civil penalties.” Hammons v. Fleetwood Homes of Miss. Inc., 907 So. 2d

357, 360 (Miss. Ct. App. 2004) (citation omitted).

¶18.   Roop alleges that the illegal act he reported here is SPC’s violation of the

Medicare/Medicaid Anti-Kickback Statute, which states in relevant part:

       (2) whoever knowingly and willfully offers or pays any remuneration
       (including any kickback, bribe, or rebate) directly or indirectly, overtly or
       covertly, in cash or in kind to any person to induce such person–

       (A) to refer an individual to a person for the furnishing or arranging for the
       furnishing of any item or service for which payment may be made in whole or
       in part under a Federal health care program, or
       ...

       shall be guilty of a felony and upon conviction thereof, shall be fined not more
       than $25,000 or imprisoned for not more than five years, or both.

42 U.S.C. § 1320a-7b(b)(2) (2012) (emphasis added).

¶19.   The instruction that the circuit court granted required Roop to prove that the activity

he reported was in fact illegal. Instruction D-5 stated:

              The burden is on Henry Roop to prove at trial that the activity he
       reported was in fact, illegal.
       ...
              In order to prove a violation of the Federal Anti-Kickback Statute,
       Henry Roop must prove:

       1)     The Defendant knowingly and willfully,
       2)     offered or paid remuneration in cash or in kind,

                                              8
       3)     to induce a person to purchase, lease, order, or arrange for or
              recommend purchasing, leasing, or orderings, and,
       4)     any good, facility, service or item for which payment may be made in
              whole or in party under Medicare.

¶20.   Although the jury returned a verdict in Roop’s favor under this instruction, the trial

judge concluded that he was unable to find any federal caselaw supporting Roop’s contention

that SPC was engaging in illegal activity by making an “offer” alone. SPC also posits that

Roop provides no legal analysis of what constitutes a violation of the statute. But Roop

argues that such legal analysis is unnecessary, since the applicable statute plainly states that:

“Whoever knowingly and willfully offers or pays . . . kickback . . . shall be guilty of a felony

. . . .” 42 U.S.C.A. § 1320a-7b(b)(2) (emphasis added). So there is no need for any legal

analysis or statutory construction when the language of the statute is clear. See Lawson v.

Honeywell Int’l., Inc., 75 So. 3d 1024, 1027 (Miss. 2011). “If the words of a statute are clear

and unambiguous, the Court applies the plain meaning of the statute and refrains from using

principles of statutory construction.” Id.

¶21.   Under the plain meaning of the statute, the alleged activity Roop reported–SPC’s offer

to Patrick to “hire” Josephine to “work” for them, but that she in fact would perform no work

but receive a commission on Patrick’s referrals to SPC from Central Medical–was illegal. In

fact, both the trial judge and Martin agreed that such a scheme would be illegal. But the trial

judge stated that SPC would have violated the law if it had hired Josephine to “work” for

SPC, “and in fact did no work but was paid a salary so that her husband might funnel

referrals to SPC from Central Medical.” Roop argues that this analysis by the trial judge




                                               9
overlooks the part of the anti-kickback statute which makes even an offer of a kickback

illegal. We agree.

                     1.     An offer is sufficient to prove a violation of the anti-
                            kickback statute.

¶22.   SPC did not actually have to “hire” Josephine to engage in illegal activity. One federal

district court also has noted this. In a case involving a completed kickback scheme, the judge

stated, “the AKS [anti-kickback statute] does not require a kickback scheme to succeed in

generating new business (i.e., new patient prescriptions) in order for a violation to have

occurred . . . . A pharmaceutical company violates the AKS if it ‘offers’ a pharmacy a

kickback ‘to induce’ the pharmacy to ‘recommend[ ] purchasing’ the company's drugs .” U.S.

ex rel. Kester v. Novartis Pharm. Corp., 23 F. Supp. 3d 242, 263 (S.D. NY 2014) (internal

citations omitted). See also United States v. Duz–Mor Diagnostic Lab., Inc., 650 F.2d 223,

227 n.5 (9th Cir.1981) (noting in a criminal case involving bribery that, under the

predecessor statute to Section 1320a–7b, offering a bribe in exchange for a referral of

patients for services reimbursable under Medicare was still a violation of the statute, even

though the person to whom the bribe was offered was a government informant who could

never have made the requested referral.). Admittedly, the conversation constituting an offer

in Duz-Mor was tape-recorded by the police. Id. at 225. We do not have the benefit of a

recording here.

¶23.   So SPC did not have to hire Josephine as a sham employee to induce Patrick to send

referrals from Central Medical; it only had to offer such. The issue then is whether SPC

offered such an illegal arrangement. On this issue, both parties presented conflicting


                                             10
testimony. “When there is conflicting testimony, the jury determines the weight and worth

of the witnesses’ testimony and credibility at trial.” White v. Stewman, 932 So. 2d 27, 36

(Miss. 2006) (citing Wallace v. Thornton, 672 So. 2d 724, 727 (Miss. 1996)). Roop argues

that he presented substantial testimony to support the jury’s finding that the activity he

reported was illegal. The following relevant evidence was presented at trial.

¶24.   Pettigrew previously had told Martin that Patrick was the man to see to get Central

Medical to try SPC’s products. Although Patrick stated that he did not have legal authority

to direct referrals to vendors like SPC and that he could influence the medical provider to use

a specific vendor in only two-to-five percent of cases, Patrick did concede that it was

“possible” that his position with Central Medical “could have brought in a lot of business for

SPC.”4 Either way, Patrick was the person whom SPC pursued to get Central Medical’s

business.

¶25.   Since Martin knew Patrick, he called to make an appointment for Pettigrew and Roop

to make a sales call on Patrick. Martin testified that Patrick–in the same phone conversation

about Central Medical buying from SPC–asked him about job availabilities at SPC for

Josephine.5 Patrick initially claimed this conversation included discussions about his

becoming a salesman for SPC, and that there were no discussions about employing his wife.

But after being shown his wife’s application, he agreed that it was his wife who was going

to be employed by SPC.


       4
           Patrick’s deposition testimony was read in open court.
       5
       Patrick also testified that he previously had spoken to owners Lingle and Martin, and
branch manager Pettigrew about doing business.

                                              11
¶26.   Josephine denied that she had talked with anyone about a job at SPC. Josephine also

admitted that the writing on the job application was her husband’s, but that it contained her

signature. Josephine did not remember Patrick filling the application out for her, and she

vaguely remembered Patrick mentioning the possibility of working for SPC. Pettigrew also

testified that he had talked with Martin about hiring Josephine as an employee of SPC. At

trial, Patrick denied knowing how Josephine would be paid, but this was contrary to his

deposition where he stated that Josephine was to be paid a ten-percent commission.

¶27.   Apparently Roop was aware of the possibility of hiring Josephine. Roop testified that,

after the meeting with Patrick at Central Medical, Roop emailed Martin. Roop told Martin

that Patrick liked their diabetic equipment and that there was no doubt that SPC would get

Central Medical’s business since Josephine had filled out the paperwork to be an employee.

At the time Roop sent this email, Roop claimed he did not know anything about a “deal”

between Patrick and SPC, and that Josephine was not actually going to perform work as an

employee of SPC.

¶28.   Roop testified that, during lunch after the sales call, Pettigrew told him that SPC was

“going to get in trouble because they can’t give Pat Gregory’s wife Josephine Gregory an

employment agreement if she is not even going to work for SPC.” Pettigrew denied this

conversation took place. Josephine worked for a day-care center at the time,6 and Roop




       6
         Josephine testified that, even though she was working for a day-care center at the
time, she previously had worked for SPC several years ago on a part-time basis. She believed
she had extensive contacts with people who needed diabetic supplies.

                                             12
believed that an arrangement had been made that, for all the Central Medical business Patrick

referred to SPC, a check would be sent to his wife for ten percent of that business.

¶29.   Roop testified he immediately called Martin and said that he had “no idea that this

kind of deal was taking place.” Roop reasoned that SPC couldn’t give “a kickback like that

. . . . Because if you would do it straight up, why didn’t you just hire Mr. Gregory? . . . Why

did you have to fill out an employment agreement for the wife to get the ten percent to refer

all of the business to SPC . . . . That’s not right . . . that’s illegal.” According to Roop, Martin

called him back the next day and told him, “it ain’t working out . . . [w]e’re terminating you,”

and hung up.

¶30.   Martin denied there was any agreement to pay Josephine ten percent of what Central

Medical purchased from SPC. Martin stated that such an offer would be illegal, because he

understood that it “would absolutely be a kickback.” Martin testified that after firing Roop,

he talked to a healthcare lawyer. Martin testified that the lawyer advised him it was perfectly

legal for SPC to hire Patrick’s wife, because it would qualify as an exception to the anti-

kickback statute. But the lawyer recommended that SPC not hire her.

¶31.   SPC argues that the above evidence is legally insufficient to support Roop’s McArn

claim. See McArn, 626 So. 2d at 607. SPC also argues Roop offers only his own testimony

and speculation in support of his conclusion that SPC engaged in actual illegal activity. SPC

notes that courts have rejected similar claims based on a plaintiff’s conclusory assertions as

legally insufficient. SPC cites an unpublished opinion, Vaughan v. Carlock Nissan of

Tupelo, Inc., 553 F. App’x 438 (5th Cir. 2014). There, the Fifth Circuit affirmed the district



                                                13
court’s grant of summary judgment on the claim because “her mere conclusory assertions that

the activities were actually illegal” did not satisfy the McArn standard. Id. at 441.

¶32.   Even if Vaughn was binding precedent, there are distinctions between Vaughn and

this case. Roop was personally present when the employment application was delivered to

Patrick. The application was filled out by Patrick, not his wife, who admitted knowing very

little about the proposed hiring. The employment application was presented at the same time

that a sales call was being made to secure new business from Central Medical. Roop also

argues he also had the benefit of the admission of SPC’s branch manager Pettigrew, who told

him that SPC was going to get in trouble because Josephine was not even going to work for

them. Based on this revelation, Roop claims he made a good-faith effort to report the illegal

activity to Martin.

                      2.    Bona-fide-Employee Exception to the Anti-kickback
                            Statute

¶33.   SPC also argues that Roop fails to take the bona-fide-employee exception into

consideration. In overturing the jury’s verdict, the trial judge reasoned that, to reach that

verdict, “a jury would have to speculate that Josephine Gregory, even if she had been hired,

would have been a sham . . . [rather than] a bona fide employee.” Under the safe-harbor

provision, the statute’s criminal prohibition does not apply to “any amount paid by an

employer to an employee (who has a bona fide employment relationship with such employer)

for employment in the provision of covered items of services.” 42 U.S.C. § 1320-7b(b)(3)(B)

(2012).




                                             14
¶34.   SPC relies on an analogous bona-fide-employee case. In United States ex rel Baklid-

Kunz v. Halifax Hosp. Med. Ctr., 2013 WL 6196562, *5 (M.D. Fla. Nov. 26, 2013), a

district court analyzed if compensation that included a bonus to medical providers employed

at the hospital, a part of which was for referring patients to the hospital’s oncology centers,

violated the Anti-Kickback Statute. Id. at **1-2. The court noted in its analysis that “[t]his

is not the typical Anti-Kickback Statute case, where one or more of the accused participants

in the criminal scheme testifies that the payments he or she received from the defendant were

intended to induce referrals . . . . In this case, there has been no such testimony.” Id. at *7

(citation omitted). The relator argued that the bonus component that comprised the referrals

was a kickback that could not be protected by the bona-fide-employee exception. Id. at *8.

The court did not agree, finding, “[s]imply stated, the Bona Fide Employee Exception

provides that the normal prohibition on payments to induce referrals does not apply where

the payments are made to a (for the lack of a better word) legitimate employee.” Id.

¶35.   SPC states that here, as in Halifax, Roop does not cite any testimony from either

Patrick or Josephine that either of them would have received any money from SPC for

Patrick’s referral of patients to buy SPC’s equipment, or that Josephine would have been

anything other than a legitimate employee. SPC points out that it extended only an

employment application, Josephine was never interviewed, the details of her employment

were never discussed, and that she was never hired by SPC. Roop, SPC contends, offered

only his own testimony that he learned from Pettigrew about the illegality of the terms. Even

if Josephine were to receive a commission on equipment sold at the clinic in which Patrick



                                              15
worked, SPC claims this commission would not violate the Anti-Kickback statute because

it is the very type of payment that is contemplated by the bona-fide-employee exception. The

only case in which the payment of commissions to Josephine would violate the Anti-

Kickback statute would be if she was going to receive payment but was not going to be an

actual employee of SPC.

¶36.   Roop maintains that direct evidence, such as SPC’s confessing an intent to engage in

a sham transaction, was not required, since “‘[c]ircumstantial evidence is not only sufficient,

but may also be more certain, satisfying and persuasive than direct evidence.’” Desert

Palace, Inv. v. Costa, 539 U.S. 90, 100, 123 S. Ct. 2148 (2003) (citation omitted). Roop

argues that such circumstantial evidence includes that Josephine did not even know she was

being considered for hire or that she was going to be paid ten percent of whatever purchases

were made by her husband’s company. Roop correctly notes that no employer will admit to

engaging in illegal activity.

¶37.   Roop also argues that the fact that an employer abandons its plan to commit an illegal

act is no reason to allow that employer to retaliate against the employee because the

complaint resulted in the illegal activity never coming to fruition. An employer should not

escape liability for not completing its illegal act, simply because an employee prevented it

from doing so. Roop argues that, the fact that an employee frustrates a criminal kickback

scheme does not make the scheme any less criminal. We agree. Taking SPC’s and the trial

judge’s reasoning to the logical extreme would mean that Roop would have had to wait for

SPC to hire Josephine to see if she would have been a bona-fide or sham employee. This



                                              16
contradicts the portion of the statue which makes even an offer of a kickback illegal, and it

does not further the public policy of this Court clearly established in McArn.

¶38.   We find that Roop provided sufficient evidence for the jury to determine whether SPC

engaged in that illegal act by “offering” a kickback. Having found so, we must determine

whether SPC fired Roop for reporting that illegal activity.

              C.     Whether SPC fired Roop for reporting illegal activity.

¶39.   “A trial court’s grant of a JNOV is reviewed to determine whether the judge properly

found that the jury’s verdict was not supported by a legally sufficient evidentiary basis.”

White v. Stewman, 932 So. 2d 27, 36 (Miss. 2006). “To facilitate a sufficiency of the

evidence review, this Court considers all evidence in the light most favorable to the

nonmoving party, giving that party the benefit of all favorable inferences that may be

reasonably drawn from the evidence.” Id. (citing Steele v. Inn of Vicksburg, Inc., 697 So.

2d 373, 376 (Miss. 1997)). “If the facts and inferences drawn from this evidence point so

overwhelmingly in favor of the movant that reasonable jurors could not have arrived at a

contrary verdict, the motion should be granted.” Id. (citing Ferguson v. Snell, 905 So. 2d

516, 520-21 (Miss. 2004)).

¶40.   “On the other hand, if there is evidence of such quality and weight that reasonable and

fair minded jurors in the exercise of their impartial judgment might reach different

conclusions, the jury verdict should be allowed to stand, and the motion should be denied.”

Id. (citing Upchurch v. Rotenberry, 761 So. 2d 199, 204 (Miss. 2000)). “When there is

conflicting testimony, the jury determines the weight and worth of the witnesses’ testimony



                                             17
and credibility at trial.” Id. (citing Wallace v. Thornton, 672 So. 2d 724, 727 (Miss. 1996)).

“A reversal of a jury verdict is not warranted unless it is against the overwhelming weight

of the evidence and credibility of the testimony.” Id.

¶41.   We believe that a reasonable jury could have reached different conclusions here.

Sufficient evidence was introduced at trial to conclude reasonably that SPC fired Roop for

reporting illegal activity. It was also the jury’s role to weigh conflicting testimony offered

by Roop and SPC.

¶42.   Such conflicting testimony included that SPC fired Roop for legitimate reasons. Roop

argues that, of course, SPC would argue it fired him solely for legitimate reasons. For

example, the defendant in McArn never admitted that it fired McArn because he refused to

illegally dilute chemicals that were being used to treat customers’ homes for termites.

McArn, 626 So. 2d at 605. Instead, the defendant claimed that McArn called his supervisor

a “no good [S.O.B.],” that McArn complained he was overworked, and that the defendant

“was not aware of any claim by McArn that he was being required to apply insufficient

chemicals to termite treatments.” Id. at 605-06. The defendant produced this evidence

through several witnesses. Nevertheless, this Court reversed the directed verdict against the

defendants and remanded to determine whether McArn was discharged for a refusal to

commit an illegal action for reporting the same. Id. at 607.

¶43.   Lingle testified here that SPC fired Roop after only a year because the company was

spending too much time and energy on a plan that did not work. Lingle cited Roop’s failure

to gain 1,500 new diabetic patients, which his contract required, and conflicts with the branch



                                              18
managers with whom he worked, as other reasons for termination. Roop contradicted this

with his testimony that, when Martin fired him, only the “kickback thing” was mentioned.

It was not until later conversations that both Martin and Lingle claimed that Roop’s failure

to meet his contract sales goals played a role in his termination. Additionally, several pages

of correspondence between Lingle and Roop before Roop’s termination were introduced at

trial; Lingle admitted there was never anything in writing to suggest the company was

planning to terminate Roop before the trip to Central Medical.

¶44.   Lingle also described Roop’s paperwork as “hit and miss.” But Roop had sent Martin

and Lingle a very detailed report in June 2009 summarizing the work of each branch

manager. The record shows Roop received a ninety-day performance evaluation in

September 2008, which contained only positive remarks. An evaluation from June 2009 also

gave Roop great reviews. But it did state that “[o]verall we did not reach our contract goal,”

and stated that SPC needed to adjust its structure “to use [Roop]’s skills to the fullest and

[Roop] must modify some of his communication skills to get maximum work out of the Sales

Representatives and Managers.” Roop argues that SPC had not given him a single sales

record, so he could not determine the amount of sales the company made.

¶45.   Roop claimed that his agreement required branch managers to be terminated if he was

terminated. Lingle admitted that no branch managers were terminated, even though the

contract stated that “[i]f a branch manager does not meet the annual run rate for production,

then that branch manager is also liable for termination.” SPC countered that, since the sales




                                             19
of diabetic equipment amounted to roughly three percent of its operations, it was

unreasonable and unwarranted to fire the branch managers.

¶46.   According to Martin, it was a total coincidence that the company fired Roop the day

after he delivered the employment application to Josephine. Roop argues another way to

prove an illegal act caused a termination is to show close timing between the protected

activity and termination. An example of this is found in Nero v. Industrial Molding Corp.,

167 F. 3d 921 (5th Cir. 1999). In Nero, the plaintiff suffered a heart attack, and after

subsequent medical bills, the employer fired him. Id. at 924. The defendant claimed that it

actually made the termination decision before the heart attack. Id. at 926. The Fifth Circuit

held that close timing in itself could permit a jury to find against the employer. Id. at 927-28.

Likewise, Roop argues, a jury could find that he was “performing his job properly,” and the

time of his termination (the day after he reported the illegal activity) was not merely a

coincidence.

¶47.   We find that a “reasonable, hypothetical juror” could have returned a verdict as the

jury did here. Henson v. Roberts, 679 So. 2d 1041, 1045 (Miss. 1996). Substantial evidence

was introduced at trial for the jury to conclude reasonably that SPC fired Roop for reporting

illegal activity. The evidence supports the jury’s verdict in favor of Roop. Thus, the circuit

court erred by setting aside the jury verdict, and we reverse the grant of SPC’s motion for a

JNOV and reinstate the jury’s verdict.

       II.     Whether the circuit court erred in denying a punitive-damages
               instruction without conducting an evidentiary hearing to determine
               whether punitive damages were appropriate.



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¶48.   Because the jury here found that SPC had engaged in illegal conduct and awarded

Roop compensatory damages, Roop argues that the circuit court erred in refusing to conduct

a hearing on the issue of punitive damages. As the trial judge had granted a JNOV at the

conclusion of Roop’s case on compensatory damages, the issue of punitive damages was

never ruled on. Since we find that the trial judge erred in overturning the jury’s verdict as to

the claim for wrongful termination for reporting illegal activity, this case should be remanded

to the circuit court for the trial judge to empanel a jury and hold “an evidentiary hearing to

determine whether punitive damages may be considered . . . .” Miss. Code Ann. § 11-1-65

(c) (Rev. 2014).

                                       CONCLUSION

¶49.   For the foregoing reasons, the final judgment in favor of Southern Pharmaceuticals

Corporation is reversed, and we reinstate the jury verdict of actual damages in the amount

of $18,750. We also remand this case to the circuit court, to (1) empanel a new jury and hold

an evidentiary hearing to determine whether punitive damages may be considered, and (2)

for consideration of Roop’s entitlement to attorneys’ fees under the parties’ employment

contract.7

¶50.   REVERSED AND REMANDED.

    DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, KING,
COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.




       7
        SPC’s motion for attorneys’ fees is pending in the circuit court, as it is based on the
provision in the parties’ contract which states that the prevailing party is entitled to an award
of reasonable attorneys’ fees and costs, including appellate proceedings.

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