                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0080n.06
                           Filed: January 31, 2006

                                        Nos. 04-4151/4509

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


BRYAN E. MCDONNELL,                              )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )
                                                 )    ON APPEAL FROM THE UNITED
CARDIOTHORACIC & VASCULAR                        )    STATES DISTRICT COURT FOR
SURGICAL ASSOCIATES, INC.;                       )    THE SOUTHERN DISTRICT OF
GENESIS HEALTHCARE SYSTEM;                       )    OHIO
CARDIOTHORACIC & VASCULAR                        )
SURGICAL SPECIALISTS, INC.,                      )
                                                 )
       Defendant-Appellee.                       )
                                                 )


Before: GUY and GIBBONS, Circuit Judges; and EDMUNDS, District Judge.*

       PER CURIAM. Plaintiff-appellant Dr. Bryan E. McDonnell sued Cardiothoracic &

Vascular Surgical Associates, Inc. (“CVSA”) and its successor Cardiothoracic & Vascular Surgical

Specialists, Inc. (“CVSS”) under Ohio law, alleging fraud, wrongful discharge in violation of public

policy, and breach of an employment agreement in connection with McDonnell’s recruitment and

employment by CVSA to be the cardiothoracic surgeon at a Zanesville, Ohio hospital owned and

operated by Genesis Healthcare System (“Genesis”). McDonnell also sued Genesis under Ohio law

for fraud and tortious interference with McDonnell’s contractual relationship with CVSA.



       * The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 04-4151/4509
McDonnell v. Cardiothoracic & Vascular Surgical Assoc., Inc., et al.
Page 2

        The district court denied McDonnell’s partial motion for summary judgment on July 28,

2004, granted CVSA’s and CVSS’s joint motion for summary judgment in part on July 30, 2004,

and granted Genesis’s motion for summary judgment in part on August 3, 2004. The parties later

stipulated to dismissal of the claims not disposed of by summary judgment. McDonnell now appeals

the district court’s grant of summary judgment as to the remaining claims.

       We review the district court’s order granting summary judgment de novo. NILAC Int’l Mktg.

Group v. Ameritech Svcs., Inc., 362 F.3d 354, 357 (6th Cir. 2004). Summary judgment is proper “if

the pleadings, depositions, answers to interrogatories, and admissions on file, together with

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A “material” fact is one

“that might affect the outcome of the suit.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

We must view the evidence and draw all reasonable inferences in favor of the non-moving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

       McDonnell first alleges that both CVSA and Genesis withheld material information

regarding the nature of his employment at the time when he signed his employment contract, thereby

fraudulently inducing him to sign an employment contract with CVSA. The district court held that

McDonnell failed to produce material evidence showing that CVSA or Genesis intended to deceive

McDonnell when they neglected to inform him before he accepted CVSA’s job offer that a

Physician Recruiting Agreement (“PRA”) would be required as a condition of his employment. In

addition, it found that Genesis lacked any duty to disclose such information.

       Second, McDonnell alleges that CVSA wrongfully (constructively) terminated him for his
No. 04-4151/4509
McDonnell v. Cardiothoracic & Vascular Surgical Assoc., Inc., et al.
Page 3

later refusal to sign several agreements with CVSA and Genesis, including a PRA and promissory

note. According to McDonnell, these agreements violated the Physician Self-Referral Law (“Stark

Law”), 42 U.S.C. § 1395nn, the Medicare/Medicaid Anti-Kickback Law (“Anti-Kickback Law”),

42 U.S.C. § 1320a-7b(b), and Ohio common law. McDonnell alleges that he was constructively

terminated as a result of his refusal to sign these purportedly illegal agreements, thereby making his

constructive termination wrongful as against public policy. In addition, he alleges that his purported

constructive termination by CVSA violated the terms of his employment contract. The district court

determined that the PRA was legal under the Stark and Anti-Kickback laws, and that as a result, no

clear public policy against CVSA’s actions existed under Ohio law, and McDonnell’s claim

therefore failed as a matter of law. Similarly, the court noted that even if CVSA constructively

terminated McDonnell, that termination did not violate the clear terms of the employment contract

as a matter of law.

       Finally, McDonnell claims that Genesis, by refusing to remit payment to CVSA according

to an Exclusive Services Agreement between CVSA and Genesis without a signed PRA, tortiously

interfered with McDonnell’s contractual relationship with CVSA. The district court held that it

would have been illegal under the Stark and Anti-Kickback Laws for Genesis to pay CVSA without

the PRA. McDonnell presented “nothing but speculation” to counteract the evidence showing that

Genesis refused to pay CVSA in order to avoid this illegality. As a result, McDonnell presented no

genuine issue of material fact on this issue, and the district court granted summary judgment for

Genesis on this issue.

       After reviewing the record, the parties’ briefs, and the applicable law, we determine that a
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Page 4

panel opinion further addressing the issues raised would serve no jurisprudential purpose.

Therefore, on the grounds identified by the district court, we affirm the district court’s July 28, 2004

denial of summary judgment to McDonnell, its July 31, 2004 grant of summary judgment for CVSA

and CVSS, and its August 3, 2004 grant of summary judgment for Genesis.

        AFFIRMED.
