               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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

                                      Case No. 09-5933                                 FILED
                                                                                  Nov 15, 2011
                         UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                              FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA, ex rel,                  )
                                                    )
        Plaintiff,                                  )
                                                    )
 PATRICK McDONOUGH,                                 )
                                                    )
        Plaintiff-Appellant,                        )
                                                    )      ON APPEAL FROM THE
                v.                                  )      UNITED STATES DISTRICT
                                                    )      COURT FOR THE WESTERN
 MEMPHIS RADIOLOGICAL                               )      DISTRICT OF TENNESSEE
 PROFESSIONAL CORPORATION;                          )
 MEDICAL ACCOUNTS RECEIVABLE                        )
 MANAGEMENT, dba Med-Arm, Inc.,                     )
                                                    )
        Defendants-Appellees,                       )
                                                    )
 SEMMES-MURPHY CLINIC,                              )
                                                    )
        Defendant.                                  )

 _______________________________________

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
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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