                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 12-1786


B. VITTAL SHENOY,

                 Plaintiff – Appellant,

     v.

CHARLOTTE-MECKLENBURG   HOSPITAL   AUTHORITY,   d/b/a  Carolinas
HealthCare System; MERCY HEALTH SERVICES, INCORPORATED; MERCY
HOSPITAL, INCORPORATED; CAROLINAS PATHOLOGY GROUP, PA,

                 Defendants – Appellees,

     and

JAMES E.S. HYNES; MICHAEL C. TARWATER; PAUL S. FRANZ; C. CURTIS
COPENHAVER; WILLIAM K. BROWN; DENNIS J. PHILLIPS; EDWARD H.
LIPFORD, M.D.; MARIE-CLAIRE C. MARROUM, M.D.; FILMON M. SEXTON,
M.D.; SANFORD P. BENJAMIN, M.D.; THE CHS BOARD OF COMMISSIONERS;
PATHOLOGY ASSOCIATES SERVICES, INCORPORATED,

                 Defendants.

------------------------------

ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INCORPORATED,

                 Amicus Supporting Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Graham C. Mullen,
Senior District Judge. (3:08-cv-00125-GCM-DCK)


Argued:    March 22, 2013                    Decided:   May 13, 2013
Before SHEDD and FLOYD, Circuit Judges, and Joseph R. GOODWIN,
United States District Judge for the Southern District of West
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Mark Jay Prak, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, Raleigh, North Carolina, for Appellant.   Charles Evans
Johnson, ROBINSON, BRADSHAW & HINSON, PA, Charlotte, North
Carolina; William H. Sturges, SHUMAKER LOOP & KENDRICK, LLP,
Charlotte, North Carolina, for Appellees.    ON BRIEF: Julia C.
Ambrose, Eric M. David, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, L.L.P., Raleigh, North Carolina, for Appellant.    Susan
Miller Huber, ROBINSON, BRADSHAW & HINSON, PA, Charlotte, North
Carolina,    for    Appellees   Charlotte-Mecklenburg    Hospital
Authority, d/b/a Carolinas HealthCare System, Mercy Health
Services,   Incorporated,   and  Mercy  Hospital,   Incorporated.
Frederick M. Thurman, Jr., SHUMAKER LOOP & KENDRICK, LLP,
Charlotte, North Carolina, for Appellee Carolinas Pathology
Group, PA.     Andrew L. Schlafly, Far Hills, New Jersey, for
Amicus Curiae.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Dr. Vittal Shenoy filed suit against Carolinas Healthcare

Systems      (CHS)      and    Carolinas         Pathology            Group     (CPG),     alleging

several claims arising from the termination of his employment.

The district court granted summary judgment to the defendants,

and we affirm.

                                                 I.

       Because the district court granted summary judgment to CPG

and   CHS,     we    view      the      facts    in       the    light      most      favorable     to

Shenoy.       Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013).

Shenoy is a licensed pathologist in North Carolina.                                        He began

practicing pathology in Charlotte at Mercy Hospital.                                       In 1992,

Shenoy and a partner formed the Medical Laboratory Consultants

of    Charlotte,        P.A.      (MLCC),       to       provide      pathology         services    to

Mercy Hospital at its two campuses, Main and Pineville.                                         Shenoy

was the resident pathologist at Pineville, and his partner was

stationed at Main. In 1995, CHS purchased Mercy Hospital and

renamed its two campuses Carolinas Medical Center-Mercy (CMC-

Mercy) and Carolinas Medical Center-Pineville (CMC-Pineville).

CHS    also       operated        two    other           hospitals         in   the     area,    CMC-

University        and    CMC-Main.              In        addition         to   MLCC,     CHS     also

contracted        with      CPG    for    pathology             services.          In    1998,     CHS

decided      to     award     pathology         services         to    a    single      entity     and

invited CPG and MLCC to bid for the award.                                  During the bidding

                                                     3
process, Shenoy filed a corporate compliance complaint, alleging

that CPG engaged in improper billing practices.                   CHS ultimately

chose CPG for its pathology contract, and CPG thereafter offered

employment    to    Shenoy’s   MLCC     partner,    but    not   Shenoy.       CMC-

Pineville’s director, Curtis Copenhaver, intervened on Shenoy’s

behalf, and CPG eventually hired Shenoy.                   Shenoy remained at

CMC-Pineville as an employee of CPG and was named the Medical

Director of Laboratory at CMC-Pineville.

     While at CMC-Pineville, Shenoy took a leading role on the

hospital’s    peer    review   committees.         Committee     membership     was

voluntary; committee members received no compensation and were

permitted to resign at any time.             Neither CPG nor CHS supervised

the committee.        Shenoy volunteered to serve on CMC-Pineville’s

Medical Staff Quality Improvement Committee (MSQIC), which was

responsible for peer review, and its Sentinel Events Committee

(SEC),   which     addressed   incidents      of   patient      death   or   injury

resulting from medical care.            Shenoy chaired the MSQIC, and, as

a result, often reported at meetings of the Medical Executive

Committee (MEC).

     Shenoy’s       relationship   with      CHS   began   to    deteriorate     in

March 2005.        At a March 9, 2005, meeting of the MSQIC, which

Copenhaver    and    several   other     administrators      attended,       Shenoy

criticized CMC-Pineville’s administration for what he viewed as

systemic   failures     leading    to   an    alarming     number   of   sentinel

                                        4
events.      Shenoy       also    complained       that    the     administration          was

placing too much blame for these events on physicians.                                 Shenoy

next appeared at the March 15, 2005, meeting of the MEC to

repeat    his     concerns.          Several        hospital       administrators          in

attendance felt that Shenoy’s behavior was unprofessional and

damaged    his    relationship       with    CHS.         Shenoy    concedes        that   he

raised his voice at the meetings, and provided the following

description during his deposition:

       [I]t was like a ten minute - you know, it was a bully
       pulpit. I was the chairman and, you know, I used the
       opportunity to, you know, reprimand individuals who
       were interfering with the physician jury process,
       trying to absolve themselves of any responsibility for
       their own actions.

(J.A. 424-25.)

       The day after the MSQIC meeting, Shenoy sent an email to

two    associates    apologizing       for       his   behavior         at    the   meeting,

explaining:

       I am sorry you gals had to witness a mess yesterday. .
       . . If you have a lower opinion of me I’m sorry I
       could not prevent that—I guess just like the Broadway
       tune—I gotta be me, I gotta be me.

(J.A. 457)

       After Shenoy’s comments at the meeting, Copenhaver decided

that     Shenoy     was     no     longer        employable        at        CMC-Pineville.

Copenhaver thus requested that CPG remove Shenoy from his role

at    Pineville   due     to     “personal       attacks   in    open        medical   staff

meetings on administration and hospital staff and due to lack of

                                             5
support      of    CMC-Pineville      and    CHS.”           (J.A.   284).      Copenhaver

verbally requested that Shenoy not be assigned to Pineville or

CMC-Mercy.          In response, CPG attempted to reassign Shenoy but

was unable to come to an agreement with him.                             Shenoy believed

that any reassignment would have also limited his ability to sit

on committees, a result he could not tolerate.                           Eventually, CPG

terminated Shenoy’s employment.

      Unrelated to these events, in October 2003, Shenoy filed a

sealed qui tam action under the False Claims Acts against CPG

for several of its billing practices.                          Shenoy did not inform

anyone of the complaint and eventually he voluntarily dismissed

it.     While there is no evidence in the record that CHS was aware

of    the     qui     tam     action,      there        is    some    evidence       several

administrators were aware that there was an investigation by the

federal Office of the Inspector General (“OIG”) into CPG.                                  OIG

never       revealed        the   nature     of        the     investigation         or    the

complainant.           In    February      2005,       OIG    informed    CPG       that   the

investigation was closed.

      Shenoy        filed     this   action       in     federal     court,     eventually

pursuing just three claims: (1) a 42 U.S.C. § 1983 claim against

CHS and      CPG     for    First    Amendment      retaliation;         (2)    a   tortious

interference        claim     against   CHS       for    disrupting      his    employment

contract with CPG; and (3) a retaliation claim against CPG under

the False Claims Act, 31 U.S.C. § 3729.                          Following discovery,

                                              6
the   district      court      orally     granted         CHS’s    motion       for    summary

judgment on all three claims.               Shenoy filed a timely appeal, and

we possess jurisdiction under 28 U.S.C. § 1291.

                                           II.

      The district court granted summary judgment to CHS and CPG.

We review this decision de novo.                     Hardwick ex rel. Hardwick v.

Heyward,    --   F.3d        --,   2013   WL       1189306,       *4    (4th    Cir.    2013).

Summary     judgment     is        appropriate        if    the        “materials      in    the

record,” when construed in favor of the nonmoving party, “show[]

that 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).         “In conducting our review, we do not weigh the

evidence,    but     rather        we   only       determine      whether       there       is    a

genuine issue for trial.”                 Hardwick, -- F.3d at –-, 2013 WL

1189306, at *4 (internal quotation marks omitted).                                    Applying

this standard, we review each of Shenoy’s claims in turn.

                                            A.

      Shenoy first contests the grant of summary judgment on his

First     Amendment     retaliation        claim.           In     this     claim,      Shenoy

contends     that      CHS    violated     his        First       Amendment      rights          by

terminating      him    in     retaliation          for    speaking       out    during      the

committee meetings.




                                               7
      The Supreme Court has recognized that public employees * may

not   “constitutionally            be     compelled    to       relinquish    the   First

Amendment    rights        they    would     otherwise       enjoy     as    citizens   to

comment on matters of public interest.”                          Pickering v. Bd. of

Educ., 391 U.S. 563, 568 (1968).                   However, the First Amendment

“does not require a public office to be run as a roundtable for

employee complaints over internal office affairs.”                            Connick v.

Myers, 461 U.S. 138, 149 (1983).                      We thus apply a three-part

test for determining whether a public employer has engaged in

unlawful    retaliation           under    the    First     Amendment.        First,    we

discern “whether the public employee was speaking as a citizen

upon a matter of public concern or as an employee about a matter

of personal interest.”              McVey v. Stacy, 157 F.3d 271, 277 (4th

Cir. 1998).       Next, assuming an employee can meet the public

concern     prong,     we     must        determine     “whether       the    employee’s

interest     in   speaking          upon     the    matter        of   public    concern

outweighed the government’s interest” in managing the working

environment.         Id.      If    the     employee      has    satisfied     these    two

requirements, we then examine “whether the employee’s speech was

a substantial factor” in his termination.                       Id. at 277–78.

      *
       Although Shenoy is employed by CPG and only has staff
privileges at CHS, we use the public employee framework for
analyzing his claim.   See Bd. of County Comm’rs v. Umbehr, 518
U.S. 668, 677 (1996); Braswell v. Haywood Reg’l Med. Ctr., 234
Fed. App’x 47, 53 (4th Cir. 2007) (unpublished).


                                              8
       The first McVey criterion, whether the speech addressed a

matter of public concern, is “the threshold question.”                             Rankin

v. McPherson, 483 U.S. 378, 384 (1987).                    If an employee’s speech

“cannot    be    fairly      characterized         as    constituting     speech    on    a

matter     of    public      concern,        it    is     unnecessary     for      us    to

scrutinize” the basis for the employee’s termination.                            Connick,

461 U.S. at 146.             We look at the speech’s content, form, and

context    to     determine      if    it     addresses      a   matter     of     public

concern.       Id. at 147-48.

       In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court

refined Connick by holding that some speech is never on a matter

of public concern—in that case, an internal memo circulated by a

deputy prosecutor.           The Court began by generally concluding that

both Garcetti’s choice to express his views at work and the fact

that     the    memo     related      to     Garcetti’s      employment      were       not

“dispositive.”         Garcetti, 547 U.S. at 420-21.              Instead, what was

“dispositive”          was    the     fact        that    “his    expressions           were

made pursuant to his duties.”                     Id. at 421 (emphasis added).

Thus, Garcetti “asked a preliminary question: was the expression

something done pursuant to the employee’s professional duties?

If so, then the First Amendment has no application.”                            Davis v.

Cook County, 534 F.3d 650, 653 (7th Cir. 2008).

       In this case, the district court concluded that Shenoy’s

speech     at    the     committee         meetings       fell   within     the     ambit

                                             9
of Garcetti and is unprotected under the First Amendment.                            The

court found the statements at issue “were all made pursuant to

his duties as chair of the [MSQIC] at the official meetings of

the MSQIC and the Medical Executive Committee” and were “thus

precisely the sorts of comments made . . . pursuant to official

duties.”       (J.A. 838).

     We        find     no     error    in    the    district    court’s       analysis.

Under Garcetti, the “ultimate question in determining whether

speech falls within an employee’s official duties is ‘whether

the employee speaks as a citizen or instead as a government

employee.’”           Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d

741, 746 (10th Cir. 2010) (quoting Brammer-Hoelter v. Twin Peaks

Charter Acad., 492 F.3d 1192, 1203 (10th Cir. 2007)).                             Shenoy

argues that because his committee work was voluntary and unpaid,

it could not be part of his professional duties.                           We disagree.

Speech     that       is     “‘not     explicitly     required     as   part    of   [an

employee’s]       day-to-day         job’    may    nevertheless    fall    within   the

scope     of     that        employee’s      official    duties.”       Id.     at   749

(quoting Green v. Bd. of County Comm’rs, 472 F.3d 794, 800-01

(10th Cir. 2007)).             We believe Shenoy’s speech falls within this

category; Shenoy’s statements came at a committee meeting he was

chairing and then at an MEC meeting he attended in his role as

chairman of the MSQIC.               The comments were not made in public and

were made to people farther up the chain-of-command at CHS.                          Id.

                                              10
at 747 (“speech directed at an individual or entity within an

employee’s chain of command is often found to be pursuant to

that employee’s official duties”).

      While Shenoy’s roles on the committees were voluntary, once

he accepted those roles, his service became part of his duties

and   his   speech    became       covered      by   Garcetti.          We     accordingly

affirm the district court’s grant of summary judgment to CHS and

CPG on this claim.

                                           B.

      Next, Shenoy contests the grant of summary judgment on his

tortious interference with contract claim.                        This claim is only

against CHS, and Shenoy alleges that CHS interfered with his

contract    with     CPG,    ultimately      causing        CPG    to    terminate         his

employment.        The elements of a tortious interference claim in

North Carolina are:

      (1) a valid contract between the plaintiff and a third
      person which confers upon the plaintiff a contractual
      right against a third person; (2) the defendant knows
      of the contract; (3) the defendant intentionally
      induces the third person not to perform the contract;
      (4) and in doing so acts without justification; (5)
      resulting in actual damage to [the] plaintiff.

United   Lab.,     Inc.     v.    Kuykendall,        370    S.E.2d      375,    387    (N.C.

1988).

      Although     Shenoy        was   employed      by    CPG,   he     served       as   the

pathologist at CMC-Pineville pursuant to the Pathology Services

Agreement (PSA) between CHS and CPG.                       The PSA required CPG to

                                           11
“provide for each Hospital a Specialist qualified to serve as

the Medical Director of the Department of Pathology.”                                        (J.A.

860).      The Director had to be acceptable to the hospital and

“remain satisfactory to Hospital in the performance of his or

her     administrative      duties,”       (J.A.       861).             If     the    hospital

informed CPG that the Director was no longer satisfactory, CPG

was     required    to     “take    such        action”        that       was     “reasonably

approved” by the hospital.            (J.A. 861).

      In   granting       summary   judgment       to     CHS       on   this        claim,   the

district    court    determined       that,      under        the     PSA,      CHS     had    the

absolute    right     to    request    Shenoy’s         removal.               The    “absolute

rights”    theory    stems    from    Kelly       v.    Int’l       Harvester          Co.,    179

S.E.2d 396, 403 (N.C. 1971).

      In Kelly, a general manager at a franchise sued after the

franchisor    informed       the    franchisee         that     it       had    to     fire    the

plaintiff     or    risk     having       its     franchise          terminated.              The

franchise     contract       provided       that        the     franchisor             had    the

unilateral right to request changes in management.                                   Given this

contractual right, the Kelly court held that any interference by

the franchisor could not be a tort, explaining that “neither the

exercise    nor     the    threat    to    exercise        a    legal          right    may    be

considered tortious conduct.”               Id.        The court then adopted the

following recitation of that standard:



                                           12
      Absolute rights, including primarily rights incident
      to the ownership of property, rights growing out of
      contractual relations, and the right to enter or
      refuse to enter into contractual relations, may be
      exercised without liability for interference without
      reference to one’s motive as to any injury directly
      resulting therefrom. . . . In other words, acts
      performed with such an intent or purpose as to
      constitute legal malice and without justification,
      which   otherwise   would    amount  to   a   wrongful
      interference with business relations, are not tortious
      where committed in the exercise of an absolute right.
      45 Am.Jur.2d, Interference § 23.

Id.

      We    agree    with     the    district         court       that,      because   CHS’s

contract    with    CPG     gave    it    the    authority        to     request   Shenoy’s

removal if he was no longer “satisfactory” to CHS, CHS’ decision

to “exercise” that “legal right” is not tortious conduct.                                   Id.

On appeal, Shenoy relies on a latter case, Smith v. Ford Motor

Co., 221 S.E.2d 282 (N.C. 1976), that is, as the district court

noted, “highly distinguishable.”                      (J.A. 843).            In Smith, the

contract    at   issue      did    not    give       the   defendant       the   unfettered

right to remove the plaintiff—instead the contract provided for

the   plaintiff’s      removal       only       if    “unsatisfactory”           “from      the

standpoint of profits earned or the manner of operation of the

corporation.”        Smith,        221    S.E.2d      at    285    (emphasis       omitted).

Based on this language, the court found that “dissatisfaction

for   the   stated     reasons       was    intended         by    the    parties      to    be

the only justification” for the plaintiff’s removal and that,

accordingly,       Kelly    did     not    apply.          Id.    at   291    (emphasis      in

                                            13
original).    In contrast to Smith, but like Kelly, the PSA gave

CHS the right to request Shenoy’s removal if he was no longer

satisfactory in his duties—a broader contractual right than at

issue in Smith.

      Moreover, even assuming Kelly does not control, we believe

summary judgment on this count was still appropriate.                      North

Carolina    makes    a    distinction    in   tortious   interference      cases

between defendants who are “outsiders” and “non-outsiders” to

the relevant contract.          An outsider is:

      one who was not a party to the terminated contract and
      who had no legitimate business interest of his own in
      the subject matter thereof. Conversely, one who is a
      non-outsider is one who, though not a party to the
      terminated   contract,   had  a   legitimate  business
      interest of his own in the subject matter.

Id. at 292.         “[N]on-outsiders often enjoy qualified immunity

from liability for inducing their corporation or other entity to

breach its contract with an employee,” although this privilege

may   be   “lost”    if    it   is   “exercised   for    motives   other    than

reasonable, good faith attempts to protect the non-outsider’s

interests in the contract interfered with.”              Lenzer v. Flaherty,

418 S.E.2d 276, 286 (N.C. Ct. App. 1992).

      In this case, CHS would be a non-outsider because, while

not a party to CPG’s employment contract with Shenoy, it had a

legitimate business interest of its own in the subject matter.

Given its status as a non-outsider, CHS receives a qualified


                                        14
privilege that is lost only if CHS acted with malicious motives.

Shenoy   has   not    produced   sufficient      evidence      to    suggest   that

CHS’s actions are anything other than a “good faith attempt” to

protect its “interests.”         Even accepting Shenoy’s position that

his   behavior   at    the    committee     meetings     was   not    disruptive,

Shenoy has not put forth evidence to rebut CHS’s argument that

Shenoy’s removal was due to a lack of support at CMC-Pineville

and a concern about maintaining a collegial work environment—

both of which are legitimate business interests.                     Accordingly,

we affirm the grant of summary judgment on this claim as well.

                                       C.

      Finally, Shenoy challenges the grant of summary judgment on

his   FCA    retaliation      claim.        To   state    a    claim     for   FCA

retaliation, a plaintiff must prove “that (1) he took acts in

furtherance of a qui tam suit; (2) his employer knew of these

acts; and (3) his employer discharged him as a result of these

acts.”      Zahodnick v. Int’l Bus. Machines Corp., 135 F.3d 911,

914 (4th Cir. 1997).         The district court found that Shenoy could

not prove causation (the third element) because, accepting his

evidence, CPG knew that he was a qui tam relator “long before

his date of termination.”         (J.A. 848).      In the alternative, the

court held that CPG demonstrated a legitimate non-retaliatory

reason for the discharge and Shenoy failed to show that the

justification was “not worthy of belief.”              (J.A. 848).

                                       15
        We   affirm       the    district       court’s    conclusion.           CPG   has

consistently argued that no one at CHS or CPG knew that Shenoy

had filed a qui tam complaint.                      To rebut this argument, Shenoy

pointed out that CPG was aware in 1998 that Shenoy advised CHS

of possible improper billing, that between 1998 and 2002 he told

two CPG physicians that he was concerned about improper billing;

and that in 2000 he told one CPG physician that he was preparing

a possible qui tam action.                     We have serious doubts that this

evidence is sufficient to show that CPG “knew” of Shenoy’s acts

“in furtherance” of his qui tam suit.                         Zahodnick, 135 F.3d at

914.         Even    assuming       otherwise,        however,     these      events   all

significantly predate Shenoy’s termination in 2005.                           “The cases

that     accept      mere       temporal    proximity      between       an    employer’s

knowledge of protected activity and an adverse employment action

as sufficient evidence of causality. . . uniformly hold that the

temporal proximity must be very close.”                    Clark County Sch. Dist.

v.   Breeden,       532     U.S.   268,    273      (2001).      Here,     the   temporal

proximity is several years, which is simply not “very close” in

time.

       To avoid this conclusion, Shenoy argues that the relevant

date is not the filing of his action, but rather the date on

which OIG closed its investigation—February 2005.                          This argument

is without merit; an employer retaliates under the FCA when it

discharges      an    employee      “as    a    result    of”    the   employee    taking

                                               16
actions under the FCA.      Zahodnick, 135 F.3d at 914.             The focus

is on the employer’s response to Shenoy’s actions, not OIG’s

actions.     Accepting   Shenoy’s    evidence,    CPG   knew   of    Shenoy’s

actions by 2002, at the latest, more than three years before his

termination.    We thus agree with the district court’s conclusion

that   Shenoy   cannot   show   causation   and   affirm   its      grant   of

summary judgment to CPG on this claim.

                                    III.

       For the foregoing reasons, we affirm the district court’s

grant of summary judgment to CHS and CPG.



                                                                     AFFIRMED




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